IMAGE EVALUATION TEST TARGET (MT-3) 5» ^<^ i< i(s 1.0 I.I |2£ 1Z5 US 1^ ■ 40 ■ 2.2 IIS Itt u 2.0 11:25 HI 1.4 I 1.6 (?>. <^^ >1 * Hiotographic Sciences Corporation '^ ^ i^^ A 4^^ -^ ^^<^\^\ •^**> 23 WiST MAIN STRiiT WEBSTER, N.Y. 14S«0 (716) •72-4903 CIHM/ICMH Microfiche Series. CIHIVI/ICMH Collection de microfiches. Canadian Institute for Historical Microraproductions / Institut Canadian de microreprodiictions historiques Technical and Bibliographic Notas/Notos tachniquaa at bibliographiquas Tha Instituta has attamptad to obtain tha bast original copy avaiiabia for filming. Faaturas of this copy which may ba bibliographi sally unlqua, which may altar any of tha imagoa in tha raproduction, or which may significantly changa tha usual mathod of filming, ara chackad balow. 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Additional comments:/ Commentaires supplimentaires; L'Institut a microfilm* le meilleur exemplaire qu'ii lui a At* possible de se procurer. Les details da cat exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la mithoda normale de filmage sont indiquto ci-dessous. I I Coloured pages/ Pages de couleur Pages damaged/ Pages endommagAes □ Pages restored and/or laminated/ Pages restaurAes et/ou pelliculAes IK D Pages discoloured, stained or foxed/ Pages d6color1 § 1. Of viewers and experts 322 § 2. Of references in matters of account to accountants and practitioners 840 J 8. Of arbitrators 841 § 4. General provisions applicable to the three preceding paragraphs 844 Sec. v.— Of trial by jury 348 § 1. Preliminary provisions 848 § 2, Of the jury 857 § 3. Of the special list and the striking of the panel .... 362 § 4. Of the summoning of jurors .S72 § 5. Of the formation of the jury and challenges 376 § 6. Of the proceedings before a jury 393 § 7. Of the provinces of judge and jury 406 § 8. Of the verdict 408 § 9. Of judgment aft«r verdict and of remedies against a verdict , 421 Of motions for new trial 426 Of arrest of judgment 431 Of judgment non obstante veredicto 433 CONTENTS. Zl ABTS. 149 154 159 176 192 200 207 220 221 234 234 244 254 263 284 800 307 317 319 S'l 822 Chap. YII. — Of divebs other incidental pbooebdinos. abts. Seo. I. — Of oontinaance of suits 434 •' II.— Of the deoisory oath and the oath put by the court. . 443^ § 1. Of the deoisory oath 448 § 2. Of the oath put by the court 448 Sec. III. — Of discontinuance 450 •' IV. — Of peremption of suits 454 " y. — Miscellaneous provisions 461 Chap.VIII. — Of final judgment. Sec. I. — Of judgment on the merits 468 " II.— Of costs 478 TITLE SECOND. — Of remedies against judgments. Chap. I. — Of revision. Sec. I. — Of the revision of judgments by default 483 " II. — Of review before three judges 494 Chap. II. — Of petitions in revocation of judgment 505 Chap. III. — Of oppositions by third parties 510 Chap. IV. — Of appeals 513 TITLE THIRD. — Of the execution of judgments. Chap. I. — Of the voluntary execution of judgments. Sec. I. — Of putting in security 514 " II.— Of accounting 521 " III.— Of surrender 534 " IV. — Of tender generally and payment into court 538 Chap. II. — Of compulsory execution of judgments. , Sec. I. — General provisions 545 " II. — C* execution in real actions 549 " III. — Of execution in personal actions 551 § 1. Of seizure of moveables 556 § 2. Of opposition to seizure of moveables 580 § 3. Of the sale of moveables under execution 589 § 4. Of the payment and distribution of moneys levied . . 601 Sec. IV. — Of seizure by garnishment 612 Of the seizure of salaries of public servants 628 " V. — Of execution upon immoveables. § 1. Of the seizure of immoveables in exbcution 632 § 2. Of advertisements 648 § 3. Of oppositions to the seizure and sple of immoveables 651 Of oppositions to annul 657 O:' < ppositions to withdraw 658 Of oppositions to secure charges 659 ^ '^1 till' Xii CONTENTS. C9AF. II. — continued. ABTS. Of oppositions to charges upon immoveables under seizure 660 § 4. Oeneral provisions 6^1 § 5. Of bidding and sale 666 § 6. Of resale tot false bidding 690 § 7. Of the return of writs of execution 697 § 8. Of the effect of sheriff's sales 706 § 9. Of the vacating of sheriff's sale .'. 714 § 10. Of opposition for payment 718 § 11. Of collocation and the distribution of moneys 724 § 12. Of sub-collocation 753 § 13. Of the payment of moneys levied 767 Sec. VI. —Of abandonment of property 768 " VII. — Of coercive imprisonment 781 BOOK SECOND. TITLE FIBST.— Of provisional fbocbedinos whiob accompany SUMMONS IN CBBTAIN CASES. General provision 796 Chap. 1. —Of capias ad bespondbndcm Sec. I.— Of the issuing of capias 797 " II.— Of the execution of writs of capias 816 " III. — Of the contestation of writs of capias 819 " IV. — Of discharge upon bail 824 Chap. II.— Of attachment befobe jcdoment. Sec. I.— 'Of simple attachment 834 " II. — Of attachment by garnishment 855 Chap. III.— Of attachment in bevbndication 866 Chap. IV. — Of attachment fob bent 873 Chap. V.— Of judicial sequestbation 876 TITLE SECOND.— Special pboceedinos. Chap. I. — Suits bbtwben lbssobs and lessees 887 Chap. II. — Hypothbcabt becoubsb aoainst immoveablbs of which THE OWNEBB ABB UNKNOWN OB UNCERTAIN 900 Chap. III. — Of the pabtition of township lands held in common. . 912 Chap. IV. — Of oompulsobt partition and licitation 919 Chap. Chap. CtTAP. V Chap.v: S60 Chap. Chap. Sec. It " I 11 Chap. 1 Chap. XI TITLE TITLE Chap. Chap. I Sec. " ] " I '• I tt .. "v Chap. 11 TITLE TITLE CONTENTS. XIU Abts. CBAP. Y.—i ACTIONS OF BOUNDABT OB TO TXBITT OB BBOTXTT AMCnSNT BOUMDABIBB 941 Chap. VT.— Or possebbobt aotzomb 946 Clup. VII. — Of oonfibmation of titli 949 Chap. VIII.— Of Se|>abation between consobtb. B6o I. — Of separation of property 972 " 11. — Of Beparation from bed and board.. 986 Chap. IX. — Of oppositions to mabbuoe 990 Chap. -X.— PBOCEEDiNoa affecting cobfobations ob pcbuc offices. Sec. I. — Of corporations illegally formed, or violating or ex- ceeding their powers 997 " II. — Usarpation of public or corporate offices 1016 •' III.— Of mandamns 1022 Of writs of injunction 1080 •• IV.— Of prohibitions 1031 " V. — General provisions 1082 Chap. XI. — Of the ANNCiiUNO of lettebs-patent 1084 Petition of right 1089 Chap. XII. — Of habeas oobpus ad subjiciendcu in civil mattebs. 1040 BOOK THIRD. OF THE CIRCUIT COURT. TITLE FIRST.— PowEBS and jubibdiction of the coubt 1068 TITLE SECOND.— Obdinaby pbocedube. Chap. I.— Of Summons 1066 Chap. II. — PbOVISIONS CONCEBNINO APPEALABUt CASES. Sec. I. — Proceedings before contestation, or in uncontested suits 1069 " II.— Of contestation 1070 " III— Of proof and hearing 1071 '• IV.— Of judgments 1079 " V. — Of the execution of judgments 1081 " VI. — Of remedies against judgments x091 Chap. III. — Pbovisions pabticulab tc non-appealable cases 1098 TITLE THIRD. — Of suits between lessobs and iassbes 1105 TITLE FOURTH. — Suits in cases of illegal detention of LANDS HELD IN FBEE AMD COMMON SOCOAQE 1107 r I t '4 .i ii ill ..fAAMaawKKni! XIV CONTENTS. BOOK FOURTH. COURT OF QUEEN'S BENCH (APPEAL SIDE.) ARTS. Chap. I.— Of error and appeal from jddoments of the SOPERIOB COURT 1114 Chap. II.— Of appeals from the circuit court 1142 Chap. III.— General Provisions 1154 Chap. IV. — Op appeals to her majesty 1178 BOOK FIFTH. INFERIOR JURISDICTIONS. Chap. I. — Commissioners' court for the summary trial of small causes 1183 Chap. II. — Of justices of the peace and other inferior civil jurisdictions , : 1216 Chap. III. — Remedies against the proceedings and judgments of the above-mentioned courts 1220 PART THIRD. NON-CONTENTIOUS PROCEEDINGS. TITLE FIRST. — Of registers and their authentication. Ch/iP. 1. — Of registers of civil st.^tus and the authentication OF registers 123(i Chap. II. — Registers of registry office 1242 Chap III. — Registers of sheriffs and coroners 1243 TITLE SECOND.— Op INSPECTION of documents 1245 TITLE THIRD— Op family councils 1256 TITLE FOURTH.— Op tutorships and curatorships 1262 TITLE FIFTH. — Of the sale of immovbadlks belonging to UXMORS OB other DISQUALIFIBD PERSONS 1267 '"»] CONTENTS. XV ITB. 114 L42 L54 L78 TITLE SIXTH. — Pboceedinob belatimo to buoobbbionb. Chap. I. — Of sealb. arts. Seo. I.— Of the affixing of sealB 1279 " II.— Of the removal of seals 1292 Chap. II. — Of the inventory. Sec, I. — Of the making of the inventory 1304 " II.— Of the sale 1816 Of the sale of immoveables 1320 Chap. III. — Of benefit of inventouy 1321 Chap. IV. — Of puovisional possession 1327 Chap. V. — Of vacant successions 1331 TITLE SEVENTH. — GENEnAL provisions applying to the differ- ent TITLES of the THIRD PART OF THIS CODE 1337 Letters of Verification 1340 TITLE EIGHTH.— Of arbitrations in general 1341 TITLE NINTH. — Division of lower Canada into districts for THE ADMINISTRATION OF JUSTICE 1355 183 21(i J20 RULES OF PRACTICE, &c. 3(i 42 43 15 56 62 ' PAGE. 1. Bales of Practice of the Superior Court for Lower Canada .... 725 In Review 754 2. Rules of Practice of the Circuit Court, Province of Quebec. . . . 746 '6. Rules of Practice of the Court of Queen's Bench 755 4. Rules of Practice of Her Majesty's Privy Council 768 u. Tariffs of Fees in the Superior Court 772 In Review 781 C. Tariffs of Fees in the Circuit Court 783 7. Appendix — Forms 795 Additional Cases 815 8. Index 827 I I 67 ^4 III TABLE OF CASES. PAOE Abbott exp 201 " V McDonald 660 " vMeikloham 228 " V Montreal* B.Ry. Co 393 Acheson v Morrison 541 Adam v Sutherland 113 " V Flanders 639 Adams exp 678 " V Fleming , ,. 142 " V Gravel 221 " V Hunter 280 " V McEntyre 110 Addison V Bergeron 125 Aimbault v liatos 73 " V Dunlop 83 Akin V Hood 100 Alexander v McLauchlan 458 Alfourd V The Mayor, &c., of Quebec 425 Alie V Pamelin 87 Allaire V Mortimer 189 Allan V Arcand 817 " V McLagan 254 Allard v Benoit 119 " exp. & Chillas 674 Allen V Harris : 82 Alsopp V Hart , 22 Amiot V Martineau 37 Anders v Hager 95 Anderson v Brusgaard 107, 463 V Sanborn 263 V Waish 151, 503 Andrews v Davies 615 " V Robertson 366 Angers V Lozeau 200 " V Murray 581,656 V Trudel - 486 B PAOE Angus V The Montreal P. & B. Railway Co 167 Antaya v Dorge 90, 139 Arcand v Flanaglian 493 V Montreal &N. Y. Ry, Co 229 Archambault v Archambault.. 169 V Bolduc 35, 39 V r.usby 265 exp 449 V Pangman 96 V Westcott 166 Archer V Lortie 141, 274 Armstrong v Barette 420 V Barthe 126 " V Crochetidre 62 V Hus.... 408, 413 Arnold v Campbell 325 " V Uppington 362 Arpin v Riopel 33, 107 Araenault v Rousseau 72, 124 Arthur v Montreal Ass. Co 618 Asselin v Kemp , 495 Astle V Andrews 367 Atkins V Quebec Building So.. 393 Atkinson v Hall ; 21 V Noad 170 V Walker 365 Atty-Gen. vCorp. ofCompton.. 298 '• V Corp. oi Iberville.. 282 vC6te 620 vEllice 618 Grey..29,88, 114. 563, 719 Atwell V Browne 289 Auclaire v Low 217 Audet V Asselin 287, 322 " V Doyon ...., 577 Audy V Les Com. D'Ecole de St. C 567 F.C.C.P. m .si'. !,1 'ip J I ' ill J ' M ilifl ■sli •t^i If xvm TABLE OF 0A8ES. PAOE Aug6 V C6t6 568 " V Mayrand , 4(55 Auld V Laurent 102 " V Milne ; 74 Auldjo V Prentice 105, 2(12 Aylwin v Oilloran 513 " vJudah 284 Bachand v Bisson 3fi8 Baile v Nelson ,.••• 403 Bieker v Foreman 151 Bain v White 200 Baker v YounK 39!), 401 Baldwin v Binmore 143 Ballay v Gray C20 Bannatyne v The Canada Pa- per Co 454 Baltzar v Grewint,' 100. 107 Barbeau v Grant 118 Barbier v Verner 51!) Barette v The City of Hull 577 Baril v Dionne 120 Barlow v RichardHon '23 " V Kennedy Ctlii Barnes v Barras 8!) " V Mostyn 24 Barney v Harris 47!) Barry v Harris 33, 107, 503 Barsalo v Masicotte 20() Bartbe v Champagne 183 " V Daf,'fi 22 " V Millet 192^ Bartley v Boon 24 Basin v The School Com. of St. Anselme 25 Bathgate v Delisle 142 Batten v Stone 110 Baxter v Bruneau IK! " V Dorion 258 " V Martin 41 " V Sills 480 " V The Union Bank 57 Bayard v Martin 018 Bazin v Lacouture (15 Beard v McLaren 51 Beau.'ihemin v Has — App 819 Beauchene v Pacand 279, 288 vLiibb6 filG Beaudet v Mahoney (»15 V Martpl 153 Beaudin v Boy 467 Beaudoin v Ducharme 30(') Beaudry v Brouillet 118 " V Brown 334, 350 PAOB Beaudry v Denis 510 " V Desjardins 847 " V Fleck 112 " V Ouimet .... 165, 192, 204 " vPapin 250,281 " V PlinKiiet 265 " V Raymond 376 " V Rodier 513 " V The Cityof Montreal 826 V The Recorder's Ct. 577 " V The Mayor etc. of Montreal 619 " V Thibaudeau 519 " V Tomalty 22(5 " V Vinet 121 " V Workman . . 103, 2!)7, 2!IH Beaufieldv Wheeler 86, 127, 491,503 Beaufoyv Feek 91 Beaulieu v Charlton 621 " vDeniers 101 " V Forguo 3il() Beausoleil v Methot 269 Beckett V Bonalio 279 Beckham v Farmer 222 Bodard v The Corp. of St. Chas. Bor 614* " V Dorion 519 " V Lusignan 510 B6de>^ar6 v. Duhamol 533 Bisginv Bell 484 Belair v Lajoio 255 Bfclanger v Balfour 4S4 V Chalifoux Hi " V Desjardins 103 V Dupont 513 " V Durocher 315 " V Giroux 284 " V Holmes 155 V McCarthy 495 167 " V Mog6 . " V Perranlt 98 vRoy ;j;jo Belisle, exp 678 V Pellerin. . ., 34 Beliveau v Clievretils ' i',lH Bell V Knowlton 10!), 132 " vTho Corp. of Quebec 24 " V Rickaby 261 " V Vigneault 461, 4!t2 Bellay v Guay 167, 261 Belle V Dolan 101 Bellisle v Lyman 286, 2!)7 Bellerose v Hart 63!) Bellet V Alison 102 Belleville v Doucct 655 Belhnghurst v Lee 120 Benjam Bonnet Banning Benoit (I Benson Benton Berger v Bergevii Bernesse Bernier ' Berrard Berriau Berry v ( " V 1 " V I Berthelot it Bertrand It Bessener Bethune Bettorswd Bickell V 1 Bigras v C Binet erp Birabin v Biroleau v Bissonette Black V HI Blackburn Blackiston Blain v T. Blais vLai " V Lei Blake v Pd " V W Blanchard Blanchet v Blankenset Blouin V Li Bluteau v ( Boak V Tht Co Boisclairv, Boisaeau v I TABLE OF OASES. zix Benjamin v Wilson 448, Bennet v HsBSguen Benning v Urtvu^je " V Malhiot " V The Montreal Rub- ber Co Benoit v DeHJardins " V Tanjjuay Benson v Ryan Benton v Styles Berber v Devlin ... Berj^evin v Persilier " V Rouloan.. . > . , . . Berncsse v Madore Bernier v Boauchemin 23, " V Beliveau 23, " V Gauniond Berrard v Barette " V Mathieu Berrian v McOorkill Berry v ('owan 340, " V Dixon " V May..4(), 457, 4C1, 408, Berthelot v Guy " V Lalondo Bertrand v Beaudry " V Pouliot Bessenor v DeHeaujeu Bethnne v Chapleau BetttTHWorth v Hout»h Bickell V Richard Bi|;!ra8 v O'Brien Binet e.rp Birabin v Lombard ]}iroleau v Ijeboi BiHsoiietto V Dunn — App .... Black V Stoddart Blackburn v Blackburn — App. " V Walker Blackiston v Patton 340, " V Rosa Blain v The Corp. of Oranbv —26, 577, Blais V Lanipson " V Learnionth Blake v Panet " V Wadlei^h Blancluird v ^Millar 299, Blanchet v Charron Blankenseev Hliarpley..465, 4rt2, Blouin V Lan^eleir 21, Bluteau v Gauthior Boak V Tho Mer. M. Insurance Co 618, Boisclair v Lalancette Boisseau v Pilot PAOK 462 261 251 200 107 556 100 141 118 114 321 578 284 143 143 624 418 414 640 350 461 ()22 376 279 275 346 646 151 26 70 418 17 145 4i)5 819 574 8l() 262 350 94 578 52 401 355 466 618 718 616 283 118 658 126 414 PAOB Boisvert v Bernier 193 V Mj,8tine 540 Boivinv Welch 880 Bombardier, My), ife Joly 681 Bonaoina v Boiuicina 107, 108 Bondy v Ve 'ois — App 815 Bonin v C6t6 326, 343 Bonnell v Millar 606 " V The Drummondville Bk. Ex. Co 181 Bonner v Hamilton 513 Booth V J3astien 628 " V Lacroix 366 " V Lawton 108 " V Tho Montreal & B. Ry. Co 57, 85 Borrowman v Angus 656 Borthwick v Bryant 193, 2.'")0 Boston V L'Kiiger 124, 139 " V Taylor 413 Boswell V Beltian 67 " V Kilboni 061 V Lloyd 117, 146, 170, 321, 532 " V The Mayor, Ac, of Quebec 673 Bottomley v Lutnley 474 Boucharti v Thiviert^o 99 Boucher v Bartho 114 " V Boaudoin 434 " V Bortrand 27 " V Brault 353 " V Dessaulles 594,676 " V Dubeau 139 " V Frascr 89 vGirard 118 " V Latour 282 " V Lemoino 40,277 Bouchctte V Tache 20 Boudreau v Dorais 612 " V Lavender 214 V Locke 492, 5<;'i " V I'outre 392 " V Riciier 9(5 V Suite 616 BoutTard v Nadon 541 liou>,'io V Leduc 141 Boulanjjet v The Mayor, &o., of Montreal 133 Boulerisse v Ilebert 521 "Boulet V Bourdon 540 Bourassa v Brosseau 456 V Haws 494 Bourbonnais v The Corp. of Soulanges 282 Borbeau, exp 666 n't XX TAHLR OF CASES, PAOB Bourdon v Pioard 97, 298 Bour«eoiB v I'iddiiluo 470 BourKot V BJuuchard fi/)7, (ifiO Bourjjoin v Miilhiot r»07, 6(18 " V The Montroul N. C. Ry. C0..571, 578 " V The Montreal O. it O. Ry ....50, 189,5fifi Bourk V Lan^lais 417 Bousquet v Brown 301 " V Jodoin 52 Bouvier v Brush 384, 391 V Reeves.... 201, 033, 053 Bove V McDonald 317 Bowen v Gordon 112 " vLee 277 Bowie V KoUy 70 •• V Murray 292 Boyd V Freer 404 Boyer exp '•70 " V Migneault 344 " V Sloane 370 Boyle V Arnold 143 Bradford v Henderson 130 V Wilton 594 Bradley v Blako 119, 120 " V Logan 45 Brady v Atcheson 22(5 Brahadi v Bergeron 501, Oil Brais v La Corp. de Longeuil.. 454 Brassard v Turgeon 475, 497 Brault V Bureau 174 Breakey v Carter 715 Breault v Barbeau 139 BresHler v Bel) 01 Brewster v Chapman COO, 002 vChilds 200; " V Starnes 040 j " V The Grand Trunk Ry.Co 20h| Brighara v Dawson 81 ; V McDonald 108 I Brisson v McQueen 75, 88, 457 ] Bristow V Rolland 039 Brock V Thebe'rge 80 Brodie v Cowan 219 Brooks V Bloomfield 515 " vDallimore (>28 " V Whitney . . . 208, 275, 351 Brossard v Bertrand 485 V Tison 357 " vTurgeon 497 Brosseau v Alves ()9 Brousseau v Seybold 454 i Brown v Carter 202 l " vCrevier 4801 PACK Brown v Demcr* 420 " V Dow 8«U " V Gordon 881 " V Gugy 83 " V JanuH 144 " V Lionais ({24 " V Magor 128 " T rinsonnault 23 " V Perkins 589,641 " V Ross 182 " V Smith 220 " V The Cur6, Ac, of Montreal 101, 508 " V The Imp.Firo Ins.Co. 280 " V The Mayor, &o., of Montreal 068 " V Wallace 226,283 " V Wood 276 Browning v Yulo 473 Bruckert v Mohor 441 Bruncau v Cluirlebois 3(57 " V Cignon 424 V McCaffrey .... 192, 0.30 " V Massuo (515 " V Millar 4.52 " V Provost 039 " V Robert 284 Brunelle v ('hagnon (57 " V Sampson 3(54 Brunet v Brunei 155 " V Leo 121 Brush V Steplions 194 " V Wilson 115,385,(524 Btilmer, exp 5H(5 Bullitt V Bhaw 144 Bunting v Ilibbard (558 Bureau v The ]laiik of B. N. A. 47 " V Nornuind 500, 5(54 Burke vColfer 371 Burland v Larocque 255 Burn V Fontaine 126 Burnett v Pomery 496 Burns v Giroux 257 Burroughs v liorthelot 128 " V Bourget 139 " V Divers 432 " V Merriman 619 " vMolson 163, 1(55 " V Simpson (528 Bury V Mathieu 149 " V Samuels — App 820 " V Shepstone 253 Burton v Young 200 Bussi^ro V Faucher 64 " V Gaboury 83 Buteau v Duchene 174 Butler V Butters i Byrne v Cadieux (»',» Carpenter v Dery Il'.l Carreau V McliinniH 10r» Carrier v Bouclier V.i'2 V Coto '27M Carson \ Carlisle 110 Carter v Breakey "»7;! " V Ford..". lit), f.2'.» " V Lalanne tlH " V MolKon . , '27">, 37:i, 4H0, 724 Cartier v Lavioiette 22 " vPellotier llH Casavant v I'atenaudo 4()r» Casoy V Brown ; 111 " viioldsniid C14 " V Hliaw 27") " V Villeneuvo 12.{ Cast,'rain v Fay r»l Cassils V Fair (■>22 Castonfiiiay v Perrin 278 Catheart v. The Union Build- inf^ Ho 280 Caverhill v Robillard O.V.) Cayley v Canivr6 20f) Chaffers v P6trin 2»i2 Chaf,'non v I^arcau »)7<) Challoner v Poitras r)r)2 Chalut V Valado 71 Chamberlain v Ball 130 Chamberlancl v Raymond. . . . US Champagne v Boisjoli 10 Chandler v The Atty-Gon .... 285 PAOH Chanteloup v The Dom. Oil- cloth Co. ." 229 Chapman v Aylfii 208, 207 " V Benallack 454 " V BlemierhasBett . . 479 " V Clarke 51), :J04 " V lIodKson 719 " V U'lie Lancashire Fire Ins. Co. . . . 710 V MaHKon 198 V Nimmo.... 85,137.495 ('harbonnean vCharbonneau. 23, 010 V Davis 028, 034 " .'.r/» 000 v(Jlii(lu 437 ('barest V Rampro 012 Charlebois v Bastien 204 V Coulombo 278 (Miarlton v Carey 09 (Miartier v McLeiHli 99 Cliartrand V Lambert 296 " V Pudiii'V 454 Chaurctte v Hnpiu ' 026 y Comte V Arclnunbanlt " V (iiiieoiiu Connavan v BryHon — App, . . Connelloy v Honnoville " V FJrannen ConBtablo v (iilbert Content V Poirior Contant v lianiontagno Converse v T'lark Convey v Smiley Cooke V Caron " V Millar " V Kni«ht Copland v Cauchon 94, Copps V Copps Corbeil V Cliarbonneau '• V Dumouchel .... 127, Cornell v Merill Corse V Taylor " V Hudson CoBsitt V Lemieux 419, C6te, exp " V Jacob " V Masse " V Riome " V Samson " V Vermette Cotnoir V Parenteau Couillard v Eschambault .... " V Lemieux Coulter, exp Coupal V Bonneaa Courchfine v G6n6reux Ciurnoyer v Plante ' ' V Tourquin V Tranchemontagne Couvs'!] V Les Syndics de Ste. C O.vvtvnaty VkOX 492 ffl 4A r>19 i»a 5/5 401 «7 71 151 ■m 14(1 177 2H4 472 71« 119 r)H7 2'2H 819 .52 35 fi07 144 41<( 307 2i>i; .')24 nv'i 123 491 LJl 401 347 ry20 441 rm 334 2.5.'» 19 .341 450 ISO 124 IDO 580 20 3,')3 281 52 1.53 826 I 951 rAoa Courtney v Bowie 198 Conrville v Lovur 7ff, 203 Coutl6o V UoH« 028 ('ovoney V MulluiH M(\ Covoy V The Corp. of Brome.. 579 Cowio V 'IVudeau 191 Cox V Patton 199 ('raiK v The ('orp. of Oranby,. 20 " V 'I'liG Corp. of Leeds. . . 2f Oainp V (!o(iiicrcau 452 Crawford v Fywon 452 Crohassa v Kt'hiur 27, 75 " i-xii 585 " v F()ur<|uin 357 Crehon v Ha>,'artv 480 Crt'nui/io v Cau(!lion 22 (;r6poaH v Talbot 297 Crevier v < 'r6vior 453 " V Do {lrandpr6 370 CroHH V (taroaii 400 CroHsley v McKt^and 152 (h'otoau v Deniers 40(5 Crowley v (Chretien 312 Crump v Middlemass 118 Cuddio V CasHidy (i4 Cummin^,'. ('.r;> (>74 " v Quintal 125 " v Hoaudet 824 Cunningliam v I-Vrrio 102 Currier v liafrance 0(> Cusliin^ v Hunter 291 " v Owens 015 Cuthbert v Barrett 457 Cutler, exp 58(5 Cuttin>» v Jordan 200, 271 Cuvillier v Cuvillier 0.57 Cyr V L'Epicier 27 O. Daigle v Kimbal 6.53 Dalbec v Duf^as 70 Daley v Ch6vrier 2.58 L.tllimore v Brooke 499 Daly V Cunningham 221 Dalton v Doran . . . 111. "(>,:, 349 D'Amour v Boul ' 1 . . 78 Danis V Taillefer 118 Danjou v Marquis 580, 656, 074 V Thibaudeau 466 Dansereau v Archambault .... 60 V Colletto 69 " V Girard 353 V Priv6 283 Daouit V " V " V Darbv v '. Durohe v Darling v Dauphinii David v I Davidson D.ivl H, <", Davis V r •' v,l " V V Dawson v ♦* V (' V " v Day v J)6( " v Ha " V Tri Dean v J 11 Deaso v 'i' De Beauj( ti M II Do Boaun De Bellofe Debien v 1 Do Bleury D6cary v J De Ciasp^ Dechi^ne v Do Groslxi Deguire v De La Gru Delaney v Steam ]* Do La Roi Delinelle v Delisle v Ij " v C V j; Delormiei Delvar v 1 , De Maiw 1 DemertL j TABLE OF 0AHE8. XXI 11 PAOK Daouit V Aiimain 604 •' V DeHchumpH W " V Lubamf 4H Darbv v Honiburdier C>'2l Darche V Diibuo 277 ParliuK V ItuiKterHon 174 " V Ht .lulUin 141 " V Tonn)loton (555 DauphitiaiH v liibeau 1*27 Davul V McDonald U)!J Davidson v Cuniuron 107 " V Lauriur iSfi " V Moffatt '22H D>ivi"H, fjrp OHO •' V McGuiro 141 Davia v Doiitidry i\'2'.\ " V .liicobH 100 " V Kimnton »«, 41 DawHon v Helle ()iJ7 V DoHfoflHC'H HiJ, «)'28 " <'.ri> 4H;J V McDonald KW. H18 V 0«don 400. 440 Day V I )6cuHHo '2(i4 " V Harto 1(»H " V Trial 47, oO Doan V JackHon MH DeaHo V Taylor <>'20 De Bcaujeu, t:rp '28*2 V MaHH6 155, '2»)« •' V McNaniee .... 50H " V Kodrinue . . 105, '2(>4 Du Doaumont v l*aiiineau .... 20H De Uellofuiiillo v McKav •>40 V Pollock .... 8*27 V UosB— App... 820 Debien v Martian 450, 401 Do Hleury v (tauthiur 207 D6cary v Poirier 541 De CiaHp6 v AHselin 320, 384 Decb^ne v Faucber 5*) Do Grosbois, exp 710 Dej^uire v Despins 07 Do La Grav)' v DoHHauUeH .... 420 " V llanna 47 Delaney v I'be St. Lawrence Steam Nav. Co 188 De La Rondo v Walker 41 Delinolle v ArniHtronj^ !*'.I3 Delisle v IJcuudry 121 V Couvrette 380 " V H»nche 402, 440 Delormiei v Hurtubise 02 Delvar v I .aiMu 1.H0 Do Mais( ineuvo v Larue .... 490 Demerii^ -jri> 681 PAoa Denitri v Tiamarohe 14S, 512 V Parant 697 V HaniMon 103 Doin.nltv Pratt H48 Denis v (!ra wford 8a " vDoniB 888, 821 " V St. Hilairo , 424 " V Tli6orot 214 De lloiwntiKny v Doberty .... 75 Derocner v Mcunier 228 D6rome dit D6carroati v Robi- taille 154 D6ry v Iliimol 187, 817 DoHautels v Ktliicr 108 DoHbaratH v Lumoine 140 DuHbai roH v (HieHner 472 l)eH6v6 V Wbyte 16 DcHliarnolH v Aniiot 887 DeHilotH V Traban 137, 157 DoHjardinH v C'brction 87 V Gravel 8»0, 417 " V Ouiniet 880 DcHinarteau v Aubertin 05 V ManHfleld 38 V Pepin :»08 DcHroHierH v McDonald 802 DeHHaullcH v Hif^pnaon 211 V Tacb6 285 D'KHtimuuville v TouHHiKnant.. —121, 138, ,S20 Dovoau V Sbepberd 216 Dewitt V Btirron^liH 046 D'KxtraHV Perrault 112 Dickinson v Dourque .... 402, 404 Dickson V (iault 825 Dinning' v Wurtole 573 Dion V Tlie Corp. of St. Joseph 20 " V Toussaint 34 Dionne v Ronami .H43 V Ross 025 " V Valleau 188 Donah uo, exp 580, 589 Donald v Beckett 110 Donaldson v ('harles 148 Donenani v Quesnel 017 DonnoUy v Nagle 842 Doray, exp 074 Dorion v Champagne 030 " V Da^onais 820 V Diette 338 " V Dorion . . 08, 128, 030, 820 " V Drummond 358 " V Grant 432 " V Hall6 378 " V Hyde 052 " vPoulin 519,593 :.,.,, ^ mm ■■( :■ I 1' i|; ■ ' >i Ah JVJi I 1 1 1 i\ H • f ■ XXIV TABLE OF CASES. 1 ' OE Dorly V Eyarson 259, 353 Dorval v Bourassa 286 " V Chevalier 593 " V Lesperanoe 406 Dorwin v Evans 202 Doucet V St. Amaiid 297 Douglas V Doufjlas 415 " V Richie 176 Doutre v Bradley 30(j " V Gagnier 666 '< V Gosselin 281, 317 " V McGinnis 43, 469, 471 " V Sharpley 330 " V The Montreal & B. RyCo 92 Downie v McLennan 825 Doyer v Walsli 468 Doyle / Clement 48 " V Mclvcr 387 " V McLean 436 Doyon v The C ;-})oration of St. Joseph 542 Drapeau v Fraser 420 vPacand 466, 480 Drolet V Ne^eu 39.{ " vKobitaillc 265, 267 Drumniond v C'onite 577 V Holland 17, 515 Dubi V Mazuretto 270 " vMivillo 119 " vProulx 138 Dubeau v Dnheiiu 518 \ " V La rubriquedeDes- chiunbeiui 129 " V Robertson 494 Dubois V Gauthier 118 " V Laniotho 119 '• V Stoll lo9 Dubord V Boivin 282 Dubuc V Chanipatine fiii.'J Ducliarmo v liOisello 193 Duchesnay v !iuroc(iuo .... 38. 114 " V Vienne 339 Ducondu V lioiirf^'eois 123 Dudevoir v Arclianibanlt .... 66 V Turcot 2.V.t Dufaux V Robillard 298 [ Duffel V Rochon 594 Dufresne v DufreKue 193 " V DuplesHis 80, 136 | " V Lalonde 155 ' DUf,'uay v Fleurant 491 j Duhamel v Duclos 389 , Duhaut V Laconibo 32, 33, 107, 268, 322, 315 vPacaud 122 PAGE Dumont v Court 465 " V Dorion 626 vLaforge....l42, 317, 672 Dumontier v CoutiAre 220 Duncan, fxp 674 " V Wilson 142 Dunlop V Jones 260 Dunning v Girouard 89, 636 Dupaul V Wheeler — App •. . 820 Duperro v Dunias 610 Dupont V Grange 615, 640 Dupras v Hochelaga 26 " V Sauve... 450, 486 Duprc V Cantara 107 Dupuis V Bell 352 V Bonvier 102, .544 " V Gushing ()56 " V Dupuis 582, 625 Duquette V Brocliu 641 " V Ouiinot 334 " V I'atenauilc 486 Durand v Sioui 330 Durocher v Lau/on 312 " V Sarault 351 DuBsault V lia Cie du Che- niin de fer — Aj)p. 815 " Stuart 149 Duval V Ciadhdis 305, 31i> " V Hehert 578 Duvernay v the C'orp. of Kt. Bartholomew 72. 73. 302 Duvernay v Dcssaulles. . . . 325, 3H4 " e.vj) 5h5 Dwino vCirillhi 182 Dynes v ralartleau 85, 131 E. I'astnian v RoHand 388 Maston v Benson 1 10 Iv'istwood v Corriveau .... 301, 303 I'ldmon-Uon V Cliilds 8<», 123 lOlt'ftion IJsts of Bertliier and Ralston 67 Kllice v Hainault 256 lOlliott V Bastion 88 v (irenier 137 " vLord 823 " V St. .Inlieii 338 KUis V Gould 304 lOlwos V Francisco IIC), 475 lOnunanue! V llagens .... 467,479 Kniond v Blais 287, 2H9 Ksinhart v McQuillan 25 Esson V I Esty V Ju Ethier v ] Evans v I " V 1 " V I " V 1 " V J Evanturel Fair v Cat Fairfield \ Faribault Farmer v Farnani v Faucher v " V " v Fausse v I Fauteux v iV M (Jo Faucott V Fehruver ' Felton* v h Fenu V Bo Fergu.son i Ferland v Ferres v h Ferrier v 1 Fielders v Fiiiatreaul Filiau, cr/j Filion V (' " V D " V L " V T Fiola V H; Fiset, ejT]) " V F( Fisher v A V V r V Fisk V Ste Fitts V Pit Fitzback v Flaggv Va Fleck v Br " V St ■l :flt 1 if TABLE OF CASES. , XXV PAGE Esson V Black : 288 Esty V Judd . . 388 Ethier v Homier 201 Evans v Hudon 370 " V Hurtubise 417, 606 " V Lararnee 619 " V Lionais 151 " V Nichols , 402 Evanturel v l-^vanturel '. 188 vWithall 228 P. Fair v Cassils, 132, 192, 193, 29G, 734 Fairfield v JUitcliard 717 Faribault v St. Louis 1'>') Fanner v O'Neil 716 Farnam v .ioyal 214, 265 Faucher v Bt'liviit,'or US, 138 " V J{ro\sn 39 " V I'aiuchaud 38 Fausae v Urien 136 Fauteux v The Montreal Loan cV- M Co 390, 418 Fawctitt V Thompson 228 Februyor v I'oiru'r 371 Ft'lton' V Holiinj^or .343, 641 Fenn v liowkcr 174, 17)^ Ferguson v (iilniour 24,"i. 'J."i2 V Millar 372 Ferland v Tjatour 26 Ferros V liiithorford 494 Ferrior v Dillon 2.")(), ()32, 649 Fielders v HIiickHtotie 47 Filiatreault v ftlie 286, 297 Filiau, f.rj) ' 67!* Fiiion V Corriveau H'.', " V Do Hiiuijon 54 " V Liicninbe 270 V The Recorder's Court of Que ri79 Fiola V Flaniel t;29 Fiset, exp 674 V Fournier 29H, 564 Fisher v McKiiif^iit HS " V Provoncher 628 " V Vachon 519 Fisk V Stevens 90 Fitts V Pitton .332, .370 Fitzbaok v Challifoux 493 iPhint^ V Vauniiai) 32 1 Fleck V JJrown 154, 358 " V Stanies 358 PAGE Fleming v Fleming 495 Fletcher v Forbes 23, 47 V The Mutual Fire Ins. Co. of Stanstead . . 247, 248 Flower v Dunn 82 Fogarty v Morrow 236 Foisy V Lefebvre 194 Foley V Elliott 176 " V Forrester 76 " V Tarratt 19, 617 Fontaine v The Montreal Loan &M.Co 126 Foote V Freer 37 Forbes v Atkinson . . 122, 124, 125 " V Lewis 503 Ford V Auger 41 " vLeger.. ..; 462,463 Forget V Sonecal 172 Forrest v Heathers 540 Forsvth V The Can. Baptist Miss. So 363, 82 For.-^yth vCharlebois.. .. 201,301 V Morin 430 Fortier v Beanbien 122 " V Reinhardt 539 Fortin v Say 177 Foster v Chamberlain . . . . 84, 208 Fournier v Cannon 627, 630 " V Lavoic 539 V Ledonx oOO '• V IMorin— App 818 V Knssell.327, 345, 388, 393 " V The Quebec Fire Ins. Co 267 Fo\ir(|uin, ejrp 585 Fradet v Lal)re(iue 539 Francis V ("henev 416 V Clement 336 I'raney V Costello. . .. 378 Fraser v Burnstein 387 V liuteau .'>t)3 V Darling 287 V Dun 101 " V (iagnon 539 V tiarant 403 " V (lerrio 460 V Loisol 331 V Munro 123 V Pouliot 152, 1,53 Frechette v St. Laurent 351 Freleigh v Seymour 21, 388 Frigon v Russell 119 Frost v ('ameron 3(55 " V J'lsson 388 Frothingham v Gilbert .... 51, 214 Fuller v Fletcher 377 ! 1 1 I ' it h f \i. U i i/ii .1*1 4 4 XXVI TABLX; OF OASES. ,L PAOE Fuller V Reesor 22, 47 Furniss v The Ottawa & R. For. Co 633 Gaboury V Leclaire 593 Gadbois v Trudeau 53 Gaf,'nier v Grevier 122 Gagnon v Hall 'i'.)C) vHamel 62i» " V Lalonde 2'.>6 " V McLeish 277 " V Paj^e 122 " V Rousseau 495 " V Senecal 71 " V Trenibiay 19 vWooley 107 Gailloux V Bureau 379 Galarneau v Marette 150 Gale V Brown 457 " V The Can. Iron & Steel Co— App 822 Gannon v Wright 493 Gardner v McDonald 280 Gariepy v Couvrette 71 Garneau v Couchene 19(; vFortin 424 Gates, exp. A Stewart 078 Gaudette v Laliberte .... 260, 473 Gault V Bertrand 38 " V Cote 129 " V Donnelly 4()7 " vDussault 4<)8 " V Robertson. . . .46«, 474, 65() " V Wright 35 Gauthier v Callahan 46 vDesy 41,519 " e.rp 676, 690 " V Lemieux 288 " V Marchatid 293 *' vMorisette 101 Gauvin V Rochette 025 Gauvreau, exp 587 " exp. & Longobardi. 352 V Quinn 503 Geddes V Doudiet 358 Gelinas v Dumont ()8 Gendron v Lemieux 465 Genereux v Gordon 428 " V Howley 453 PAGE Genier v Woodman 283 George v The Can. Paofic Ry. Co. 23, 108 Gerbio v Bessette 454 Gervais v Denis 277 " in re & Hey wood. ... 107 Gesaeron v Canac 132 Gibeau, exp 076 Gibb V Poston 564 " V The Beacon Fire & L. Ins. Co 027,602 Gibson v JamieKon 306, 345 V Lindsay 298 V Moffatt 143, 501 V Wear 124 Gigon V Hotte 40 Giguere v Beauparlant 53, 72 Gilbert v Couindet 510 Giles V C'hapleau 108 " V Faneuf — App 815 " V O'Hara 110 Gillespie V Spragge, 153, 253, 255, 2t)9 Gilley v Miller 221 Gilnian v Dougall 229 " V Robertson 572 Gingras v Gingras 2(50 " V Vezina 3(18 Girard v Belaiigcr 543 V St. Louis 490, 504 Giroux V Gareau 93, 490 " V Menard 279 Glackmeyer v The Corp. of Quebec 551 Glass V Denis 235 Gloliensky v Daoust 281, 433 Gnujdinger v Bertrand 38 " V Derouin 438 Godin V McConnell 494, 495 Goff V The Grand Trunk Ry. Co 317 Gohier, exp. & Perkins 200 Goldring v La Banque D'lloche- laga 052 Goodman, exp 075 Gordon v Pollock 508 Gore V Gugy 207 Gorrie v The Mayor, Ac, of Montreal 203 Gosselin v Chapman (!20 " V GoHseliii 278 " V Naulin 393 Gosset V Robin 38, 02 Goudio V Legendro 48 Gough V Greaves 141 Gould V Sweet 040 Goyette v McDonald 472 Grace v Cr Graham v Grange v ]\( Grainger v Gramniont Grant v Tl " V B( " vBi " vLi " V L( " vPe " V Tt Gravel v INI Gray v Du) Greaves v I Greene v B V H Greenshielt (( Gregory v V J V " y > GreniervRi Griffith V M Grinton v '1 S. S. Co. Groom v B( Grothe v Hii Groulx V Tl rent Guay V Bai! " V Car " V Fra Guenet v Bl Guerin v M GuevremonI Gugy V Bro' V Doi " V Du( " V Fer " V Gu| " V Mat Guilbault v Guilfoyl v 1 Guillaume v Guilmetto v Guimont v ] Guy V Clark " v Goud Guyon v Do " V Li TABLE OF CASES. XXVll PAD 6 Grace v Crawford 107 Graham v Gervais ; 109 vHurlbert 913 " V Kempley 639 Grange v McDonald 341 Grainger v Park 91, 110 Gramniont v Lemire 100 Grant v The ^tna Ins. Co. . . 24r) " V Beaudry 27 " V Brown 518 " V La\oie 71 " V Lockhead 079 " V Percival 2') " V Teasel 372 Gravel v Maletto 107 G ray v Dubuc 88, (iiJCi Greaves V Deuison Ill Greene v Blanchet 3(1 V Hatfield 450 Greenshields v Oanthier 130 " V Le Hliuic 2.")9 Gregory v The Boston & S. Glass Co 37, 4r)7 V Ilensliaw 180 " V Ireland 409 " V The ('an. Improve- ment Co 182 Grenier v Rouleau 2t) Griffith v McGovern 492 Grinton v The Montreal Ocean S. S. Co 72, 94 Groom v Boucher 73 Grothe v Sanders 4/54 Groulx v The Corp. of St. Lau- rent 038 Guay V Bailev 4:58 " V Caroii 131, lit) " V Fradet 222 Guenet v Blanchet 403 Guerin v Matlie 21, lOH Guevremont v Wilbrennor. . . . 124 Gugy v Brown 154, 252, 279, ()53, ()57 " v Donahue 195 " V Duchesnay 121 " v Ferguson 121, 482 " v Gugy 039 " v Maguire 201 Guilbault v V'adenais 85, 213 Guilfoyl V Tate 334 Guiilaume v Montreal 34 Guilmette v Larochelle 542 Guimont v Methot (544 Guy v Clarkson 403 " v (ioudreau 519 Guyon v Donahue 90 v Lionah 175, 177 • PAGB H. . Haggarty v Morris 646 Hainault v Lynch 90 Helcro v Delesderniers . . 121, 1.S4 Hall V Brigham 160, 297 " V Douglass 404 " V Harrison 309 " V St. Julien 327 " V The Mayor, &c. of Mon- treal 17 " V Zernichon 468 Halle vHall6 350 Hamel v Cote 469, 470 " V Laliberto 263 " V Marcliildon 333 Hamilton v Constantineau . . 513 Hampson v Thompson 307 Hannis v Turcotte 330 Hannower v Wilkie 103 Hardie v Trottier 37 Hardy v Scott 275 Hai'rington v McCull 33 Hart v Barlow 179 •" V Burn 135 " cxj) 550 " V Hart 164, 314 " V PhiWips 122 " V Rose 140 Harte v Alie 302 " V The Nortliern Ins. Co 130, 229 Hartshorn v Scott 100 Harvey v Dezicl 033 " V Phillips 211 Httsset V Mulcahey 4G1, 464 Hasty V Morland 214 Hatte V (Jurrie 463, 409 Hatton V The Montreal, P. & B. Ry Co 567, 509 Hayden v Fitzsimmous 75 Hayes v Kelly 493 Healey, exp. ., 586 " ' V The Mayor, &c. of Montreal 274 Heardsman v Harrowsmith . . 107 Hearle v Date 509 " V Rhind 501 Hearne v Maloney 47, 55, (58 Hearn v Lampson (540, 041 Heavyside v Mann 179 Hebert v The Fabrique of St. .lean 278, 289 Hebert v Quesnel 19 Helliwell v MuUin 52 ■ ■ , if XSVUl TiSLE OF OASES. PAOE Henderson v Duggan 4(52 vEnnis 49,4(52 '• V Henderson.. 112,619 " V Lamoureux .... 484 " V Lemieux 441 " V Loninger 6(54 " V Thompson 28(5 Heney v Holland 631, 634 Henry v Siniard 5()4 Her Majesty's Prin. Sec. of State V Edmonston 228 Heroux v Clement 277 Herriman v Taylor 190 Heush V Ross 474, 494 Hevneman v Davis 229 ' " V Smith 479 Hibbard v Barsalou 6(')7 Higgins V Bell 448 " V Eobillard 3">1 Higginson v Lynuin 217 Hilaire v Lizotte 64'i Kingston V Larue 21,300 " V ^IcKenty 478 Hitchcock V (J rant 47 " V Meigs 47") " V M'onette 6 H Hobbs, In re and Harte 13(5 " V Soymour 70 Hodgson V Hannah 176 " vLaHanquoD'IIoche- laga 17 Hodgson V Olivii 4iVj Hoffnnng v I'orter 633 Hogan V Gordcn 360,479.480 " V Hoskiiis 4;")6 Hogue, exp 282 Holton V Aikins 2t') " V Andrews 289 Homier v Lenioine 49 Hooper v Konig 179 Hope V Frank 623 Hossack V Pavadis 261 Hotte V Champagne 635 Hogau, fsp 674 HoUgll, fTj) ti78 Houle V Martin 639 Howard v Childs 2()i) V Howard 473 V Yule 112 Howley v The Standard Fire Ins. Co (50, ()9 Hoyt V Todd 22(5 j Hubert V Penaud 32(5 1 " V The City of Montre.-i 1 UA) | Hudon V Champagne . . 35, 95, 136 " vGirouard../ 84 1 PAGE Hudon V Painchaud 617 V Kivard 363 " V Solman G9 Hughes V Ueid 213 Hullet V Wright 120 Humbert v Mignot 112 Hunt V Bruce '. 227 " V The Corp. of Quebec. . 559 " V Perrault 387, 389 Hunter v Dagenais 92 " V Dorwin 93 Huntington v Whito 619 Huot V Cloutier 45 " V Page 275 Hurtubise v ]3ourret 458 " V Lericlie 465 V Kiendeau 296 Hub V Charland 191 " vMillette 537, 650 Hntchins v Eraser 146 Hyacinthe v Harte 615 Ilvnes V Lennon 83 I. Ingham v Kii'kpatrick 47 Ireland v (Irogory 3()8 V HteiiheiiH 289 Irish V liroinc (59 Irvin V Maiu ncy 208 Irvine V I )uvernav 38 " V Perrault' 92 Irwin V Boston 25, 438 Ives V Seegniiller 261 a. Jackson v Coxworthy 37 v Filteau 19, 200 Jacques v Lussicr .300 Jamieson v Boswell 173 v Larose 182 Janes v Martin 512 Jarry v The Trust A Loan Co. 402 Jeanne v Caldwell 257 Jersey v liourke 110 Jervis v Kelly 424 Jette v ('iiotiuetto 25 Jobin V llaniel 402 " v Hymmons 492 Johnson v Connelly 661 " V Gauthier 124 Johnson v I' ■ W\ l ■ :rsf TABLE OF OASES. XXIX PAGE Johnson v Martin 191 " V O'Halloran 351 " V Rimmer 262 Johnston v Watts 215 Joly V McDonald 571, 575, 57(5 Jones V Albert 330 " V Crebassa 253. 321 " exp 580 *' V Guyon, dit Lemoine —173, 175, 663 " V Laurent 824 " vMcNally 8'.» " V Morin 92 " vPellson 93 " V Saumur 360 " V Vanvliet Ill Joseph V Brewster 93 V The City of Montreal 566 " vCoy 52,341 " V Cuvillier 485 " V Donnelly 385 " V Donovan 466 " V Joseph 191 " vOHtell 219 Joubert v Kascony 649 Jourdain v V.^oreux 542 ^outras V Diinlop 457, 468 Joyal V Btafford H6 Joyce V Hart .... 29, 104, 616, 657 JubinvillevTho Bankof H.N. A 293 Judah erp. A Judah 105 K. Kane v The Montreal Tel. Co. 57:i Kathan v Kathan 1 HS Kavanaj^h, exp 201 Kearney v Mcllale 300 Kellond v Road 267, 30i', Kelly V Frasor 83, 4'_>1 " V Hamilton 611 " V The Mayor, Ac, of Sorel 268 " V Mervillo 509 " V O'Connell 135 Kemp V Kemp 337 Kennedy v Hedard 40 V McKinnon 87, 111 Kenny v McKeown 457 Kent "v Cranwell 189 Kerbv v Ross 646 Kerr'v C uf,'y 280, 287 " V Monroe 629 " V Peltier 561 FAOB Kerry v Pelly 424, 425, 434, Kershaw v Delisle 76 Kierzkowski v Morrison 146 V Talon 325 Kinfj V Pinsonneaiilt 259 Kingley v Dunlop 146 Kingsborough v Pound 20 Kingsley v Nixon 640 Kingston v Corbeil 26 V Torrance 127,507 Kinney v Perkins 54 Kitson V Delisle 321 Knowlton v Clark 613, 634 Knox V Lafleur 172, 174 La Banque D'llochelaga v Goidring 486 La Banque D'llochelaga v La- vender 617 La Banque D'llochelaga v Masson 255, 268 La Banque D'Hochelaga v The Montreal, P. it B. lly. Co. . 373 La BaiKpie Du Peuple v Daoust 334,387 La Bancpie Du Peuple v Done- gani 327 La Ban(iue Du Peuple v Gugy —67, 207 La Banque Du Peuplo v Mar- tin 363 La Bancjue Du Peuple v Roy.. 167 lia Bau(iue Jacques Cartier v Neville 343 La Banijuo Jacques Cartier v Cote 130, 135, 137 La lian(iue Jaccjues Cartier v The Can. Rubber Co 344 La Bancjue Jacques Cartier v Thibaudeau 206 La Banipie Nationals v La Hoc. de C!oiis. du Canada . . 408 La Banque Nationale v Ross.. 817 V The City Bank 48 La Banque Ville-Marie v Laurie 162 L'Abb6 V Ritchie 219 Labolle v Patris 285 Lacey v Drapeau 629 Labossiire v fithier 262 Lacerte v Duf resne 298 \3n V' \ ,iH^ f ;| '§ i I /r XXX TABLE OF OASES. PAOE Lachambre v Normandin .. 167, 817 Lachance v Lachance IBB La Cie. D'Aqb. v Deaulieu... 87, 114 " V Freeman .... 160 La Cie. des Laurentidea v Gauthier 68 La Cie. des Moulins Hiidon v Valois 116 La Cie. de Prfit & C. F. v Baker 41J) La Cie. de Prot A C. F. v Barthe 128 Lacombe V Ste. Marie BOl La Corp. de St. Aimc v Cotnoir 280 La Corp. de St. Martin v La Cie. du Chemin de D'lsle J6su8 lOB, 593 Lacroix v Moreau 6"ii> " V Perrault 176 La Fabri(iue ce Deschambault V Dubeau 137 La Fabricpie de L'Enfant Jesus V Poirier 51(0 La Fabricjue de IMontreal v exp 675 La Fabrique Ste. Julio v Pa- quet 222, 27 1 Lafaille v Lafailie 278 Laferriire v Prevost 261 " V The Mnt. Fire Ins. Co. ofB 301 Laflamme v The Mail— App... 817 i Lafleur v Muir 148 i " V Verveille H27 j Lafond v Chagnon 255 ' vGuibord 401 ' Laframboise v Bcrthelot .... 426 ! " V Rolland — App. 821 j Lafrance v Jackson 38 I Lafricain v Villeneuve 371 | Lagace v Ayotte 4!ll Lagrange v Carlisle 130 j Laporte v Hogan Lahaye, v.rp (17 Laidlaw v Burns 458 " V Jainieson 54 Laine v Clark 455 " V Hamel 540 Laing v Bressler 493 Lajeunesse v Latraverse— App 818 PAOB Lalonde v Rowley 424 Lamarche v Blanchard 45, 97 Lamb v Brewster 94 " V Mann 52 Lambert v Roberge (58 " V Saucier 308 Lambkin v The South-Eastorn Ry. Co ()59 Lambly v Quesnol 142, 413 Lamontagne v Stevenson .... 5()5 Lamothe v Garceau. . . ,(i8, 346, 388 V Talon 422 Lamoureux v Boiaseau 17B " V Kinimery 492 " V Luttrell <)71 " V Mollcur 51 " V Peloquin 431 : Lampson v Smith 124, 459, 4()3 V Taylor 118 V Wurtolo ((28 Ijamy v Cusson 394 Landrevillc v Lacroix 308 Landry v IMigneault 577 Lane v Delogo dlB Lang V Clark 307 Langelier \ .angelier 23 Langevin v CJaron 404 V Martin 287 Langley v Chamherlin 4ti5 Langlois v The (Jorp. of St. Roch's 510 Langlois v Gauvroau 342 V St. Pierre 79 V Valin 200 Languedoc v Castagnc 478 Lanier V Lanfet (isl Lanthier V Daonst 175 " V McCuaig 403 Lapierre v (iauvreau 38 Lapointe V P'aulkner 635 V Bulanger 591 •«78 Laprade v Gautliier .539 Lapriso v Methot 135 Larainee v Evans 34 Lareau v Archambault 29tJ V Bmuidry 194 V Leclcrc— App 819 Larin v Deslorges 71 Lajoie V MuUin 48H j Larivce v Brnneau 143 Laliberte v Chenard 20 . Laroche v Hf)lt 203 " V Paris 776 Larochollc v Piche 503 Lalonde v Daoust 539 ' Laroc(iuo v CJlark 462 " V Lalonde 144, 260, 324 Larose v liaroso 271 V Prevost 400' " v Wilson 322,626 V Rochon— App 816 Lasell v Brown 214 tt (I La Soc. An Giberton La Soo. de La Banqi La Soc. d( Bourassa La Soc. de Lamontaj Latliam v IV Latoucl.o V Latour v Ca " V Ch " V Ga " V Ma Launi6re v i Laurence v ( V vl Laurent v 1 Jean Ti. . . Laurent v Vi Lauzon v Sti Laverdiiire v Lavigne v Hi Laviolotte v ' Lavoie, e.rp . . Law v Froth 1 Luary v Plim Leavitt v Mo Lebel v O'Bri " v Pacai LeBlanc v Te LeBauif v Pic V Via Leboia v Gagi Lebourveau v Leclaire v Da v Bill Leclerc v Bilo " V The I " V (;ar. v (;()p( " v La ( Cla " V Dun " v Lore Lecours, r.rp . Leduc v BuHSP " v McCa " V Ouelh Lee V Kinsniai " v Lainpso " v Whitfiel Learning v f ;oc V Rol TABLE OF OABBS. XXXI PAGE La Soc. Anonyme des Glaces v Giberton 107 La Soc. de Cons, du Canada v La Banque Nat 137 La Soc. de Cons. Mitrop. v Bourassa 49 La Soc. de Cons, du Canada v Lanionta^ne 611 Latham v Martin 81 Latoucl.o V Ltttouclio 632 Latour v Campbell 259, 289 " V Cbanipaf^ne 42 " V Gauthier 183 " V Mnsson 89 Launiire v Beaulieu 344 Laureuco v Cliaudiisre 44 " V Hinckley 481 V Hubert 285 Laurent v The Corp. "74 Lavoie, c.rp 5H5 Law V Frotliiiifjliam 104 Leary v Planiondon 74 Leavitt v Mohs 301 Lebel v O'Brien 459 " V I'acaud 49»i LeBlanc v Tellier 404 LeBoeuf v Plouffo 348 V Viaux 589 Leboia v Giif,'ne 434 Lebourveau v Beard 3()6 Leclaire v Daij^le 344 V Blanchard 32 Leclerc v Bilodeau KJO V The .Toilette M. Fire luH. Co 209 V (Uiron 370 " V (-opelund 454 " V IaH Corp do la Pointe (Jlaire 25 V Durand 137 " V Lord ^. . . 555 Lecours, c.rp (')75 Leduc V Bu88eau 285 V McCarthy .... 430, 431, 43«) V Oueliet ti44 Lee V Kinsman .70 " V Lampson 320 " V Whitfield 126 LeemintJ v C!ocliraue 4(>2 " V Robertson 123 PAGE Lefebvre v Bacon — App 821 " V De Montigny 133 '* V Murdoch 298 " V TuUoch 4(50 " V Turgeon 820 " V Vall6 488 Lefort V Desmarais 148 '• erp 22 LeHar6 v Desroches 604 Le{»ault V Le^ault 33 " V Lee 26 " V Viau 179 Legendre v Lemay 666 " V The Grand Trunk Ry. Co 57 Legru V Duf resne — App 816 Leight V Guay 176 Lelit>vre v Baillarj-eon 332, 370 " V Donnelly 464 Lemay v Lei. .ay 140, 479 Lemelin v Larue 627 Lemesurier v Garon 41 " V Ritchie 125 Lemieux v Brochu 188 " V Goto 65 f.rp 826 Lemoine v Lionais 660, 662 Lenfesty v Metivier 256 Lenno.\ v Anyus 277 Lenoir v Desmarais 800 " i:rp. & Lamothe 648 " V Maletto 628 Leonard, i:rp 681 V Rolfe 15 Lepage v Cluirtier 139 " V Watzo 330 Lepine V Gauthier 371 " V The Jaciiues Cartier B.So 620 " V Mussen 620 Loprohon v ('rebassa .... 291, 304 Leioux V Deslauriers .... 34(>, 452 I'xp 680 V Ijcroux 142 Lesage v Prudhomme 102, 126 LesCuri Ac, de Boauharnois V Robillard3.13, 516 " de Ste. Anne v Choquette 825 vTheR.C.Bishop of Montreal.. 654 Les Dames Ursulines v Botter- ell 264 vEgan.. 193 V Perry .. 122 Leslie v Fraser 94 1 ; i ■l:fil:' ■i':; .\m 1 xxxu TABLE OF OASES. PAOB Leslie v Harvey 201 " V The Molson'sBank, 93, 495 Lespfirance v Allard 386 " V Langevin '392 LesBai'd v Genest .', 305, «M4 Lea Syndics de St. Henri v Carrier 258 " deSt. Nor^crtvPacaud 594 Leveill6 v McGreovey 194 Leverson V Boston .. . 351, 438, 453 " V Cuuninfjhain 345 Levy V Sponza 052 " V Plftinondon 90 Ltwis V Geriiardt 120 " V McCrinnley 287 " V Primeau 155 " V The Levis A K. liy. Co 302 L'Heureux v JIartineau . . 458, 499 L'Hoist V Butts 4(i2 Liglitliall V Ciiretien 302 " V .lackson 277 Limoges v Marsaut 310 Lionais v Guyoii 1H9 ' V Lamontagiie 149 " V Tlio Mol&ons' Bank 028, 030 Lizotte V Caron 3 13, 317 Logan V Kiigour 289, 041 Loiselle v Loiselle 301 Loiselle v I'liradis 5 10 Long V Blantliard 594 Longtin v The Blount Koval P. Ji. So 124 Loranger v Boudreau 410 " V Uorion 559 vHeid 014 " V The Montreal Telo- grai)li Co 559 Lord V Bazinet 292 ' " V Laurin 215 , Lottinville v McGreevy 297 , Lovejoy v Campbell ;t71 i Lovell V Campbell 228, OlH ; " V Fontaine (iOO Low V Bain— App 717 ; " V The I\IoiitrealTel. Co. . 019 ; Loyseau V Charboimeau. . 'M\, 419 Lozeau v Cote '!7 Lureau v Beaufort lis , Lusher v Parsons 87, 208 ' Lusk, in re A Riddell iJOti i Lussier v Archambault 550 j Lyman v (;hamard 40 j " V McJJermott 514] " V Perkins 122 TAOB. Lynch v Bertrand . 288 " V Blanchet 641 " V Duncan 157, 270 " V Ellice 490, 507 " V Guimond 109 " V Laframboise l.SO " V McLennan 506 « V Tyro 287 Mao— Mo. McAdams v Smart 107 Mc Allan v Ash by 468 McAndrewH v Bowan 052 McBean v CUilleu 204 Mc I ilaino v Oliver 346 McCaffrey v Krinicau 0H5 ' V Claxton 3.50 I'jrp 350, 580 McCallum v Delano • 107 " V Harwood 74 v Pozor 08 " V Wood 250 McCarthy v Harthe 135 McClanaghan v The Harbcir I Com. of Montn>al 164 I " V The St. Ann's Mu. 15. So 280 I\Ic(Mnro v Shepherd 335 McConvillo V LaPaniiued'Hoch- elaga 77k :\roCord V McCord 27H, '' U MoCorkill v Knight 373 McCrae v Millar 400 MacCracken v Loguo 299, 018 McCullocii v JIatlield 279, 508 v MoNevin 227 " v Uouth 108 Macdonald v Abbott 050 V Dui.n 48, 91 v.loly .573, .')76 v Lafaille 174 vLalondo ;{23 v MacKav 04 v IMulieiir, 2h;{, 285, 297 V P.oy 2t;r, McDonald v lUnitin 439 " V (iaiiible 8(5 " v Grenier vJ88 v Mcl^onald 309 " V McDonnell .55 " V Premont 690 " V Sevmour 65 V Tache 373 MoDouga Macdouga Maofurlan \icFaul V McFeo V B( McOee v Vi McGibbon ^ ^IciiiU V VV McGills V P McGinn v i McGinnis v v McGoey v G McGrath v I McGreevfly ' Macintosh v McKay v Coi vDe vGe V lie vShi vTh. 1 McKenna v 1 McKenzie v ] v.l v J V 'J V \ McKercher v McKillop V K McKinnon v ' McLaren v I) V H; TABLE OF CASKS. XXXIU PAOE McDougall V Scott S58 •' V The Corp. of St. Ephr. d'Upton " V The Union Nav. Co 800 Macdoufi^all v Torrance .... U8, 4(K> Macfarlano v Hell 872 " V BoUiveau 44, 470 •' V Bourgeault.. «6(i, «7« " V Brealer 212 V Court 204 " V Delcaderniers . . 44 '• V Deliale : 280, 505 " V Leclaire 058, 000 V Lynch 484, 488 V McNeice 4(i44 McGinn v lirowders (5il'.> McGinnis v IIorHman 51!) V McCloskev 47 McGoey V Griffin 1 128 McGrath v Lloyd 340 McGreevfly v Charleson 344 V Doucet 031 " V (;iv>{n6 177 " V Giii^ras .... 152, 154 V Leduc 403 V Paille 178 Macintosh v Davis 50 McKay v Cook ')i)3 " V Demers 303 V Gerrard 254, 205 V UoHth 305 " V HinipBon 034 " V The St. Lawrences. Fish. Co 020 McKeniia v Tahb 224 McKenzie v Douj^lass 35U V .lolin 80 I V McKenzio 201, 301 | V Turf^eon .... 035, O.HO j V White 015 McKercher v Simpson 72, '.(8 ' McKillop V Kiiunt/ 04t», 054 I -McKinnon v Thompson Ill ' McLaren v Drew 377 | vlliill 104 1 PAGE McLaren v Hutchinson " V The Corp. of Buck- Ingham 297, 800, 801 McLaughlin, exp, & Lalonde. . 674 McLean V McCormick.... 123,188 V PhiUips 780 McLeish v Lees 102 McLellan v Halo 800 McLennan v Grange 100 " V Hubert 490 McLeod V Marcil 297 McLimont v Robin 64, 09 McManamy v Boisolair 851 McMartin v Walsh 41 McMaster v Robertson 403, 480 " exp. & Souohereau 074 McMillan v Bethune 833 V Buchanan 67, 94 McNamara v Meagher 491 McNamee v Hines 25, 140, 244 V Jones .Wi, 480 McNeice v Fobs 587 McNevin v McAndrew 492 Mcpherson v Barthe 801 V The St. Law- rence ife In. Ins. Co 57 Mc Vittie v Jordan J 80 Magnire v Brady 509 " V Harvey 493 V Link 491 " V The London & L. Fire AL. Ins. Co. 104 " V Rockett 457,400 V Stride 308 Mahar v Aylmer 049 Mahoney v Tomkins 107 Maillv V Chapleau 043 Mai'iloux V Baby 83 " V Homerville .')03 V Trudeau ;.. 114 Major V Boacher 20 V Chartrand 20 " V Paris 104 Malhiot V Bernier 450 Mallt'tto V Desbarats 432 " V Lenoir ir\'2, 035 V The City of Moii- troal 571, 054 " V Tremblay 97 F. C. C.P. ; iM X\X1V TABLi: OF CASES. ■il n I'M IK Miilo V Adhfimar »•'>!' " vLabollo '172 Miiloiio V Tate . 1H*'» Jriilouoy V Fitz^joriild 2t Mimjjeau v Turenne 1H!( Mann v Hogaii fill " V Lanibo . . 110, 125, 228, (i22 " vMonk 2«i> IManseau v Donianl 384, M'2 Mantha v Co^hlan 100 V H6)?uin KHJ Manuel v FrobiHher 17H Marais v Urodeur 107 Marclmnd v Siiowdon 151 Marcliildon v Mooney 425 Marcotte v Dencoteau 110 V Moody ICO, 4'.!» IMarcoux v Morria 47 Marois v Allaire 05H " V Hornier 280 " V Deslauriera HHO Marquis,. (MiJ <>74 " V Vaucortlandt .... ()H4 Marrett v Itobitaillo 520 I\Iarry , exp *>^0 MarHolaia v Lesajje '>-i Martel v Constantin ."Wh " V Plamoiidon 47 Martin v Drunulio •' exp 5H5, 5H{i •' vFok'V 100 vLabeilo ;141, ;J'.4 V Martin 12l» Martineau v Cadoret 2!>1 i " V Karri(»an 15(1 PAdi: Mnnry v Dnrand 4(t8 Mayor v TliornpHon l.V. Maynard v Marin 'i'Jil Meade v Hattlo 1 lU) Meittii V Mona^'lmn 40.) Mei^K V Aikon .SO.) Moiklojolui V Youn>{ 71H Melan<,'on v Boaupri IIM " V Hamilton (14 " V Venuo ri41 MelltH V BwaloH 1()<) Meneglier v Oauthior (',;);{ Menzios v Bell 38, r.'JO Mercier v Honsquet !'_';{ " V The Can. I'aciflc Ry. Co K7 Mercnre v Laframbroise 44!» Merritt v Lynch '24H Morrizi v Cowan ;;1k Meservier v The Can. Paciiic Ily. Co.— Ai)|) 40, 81.- Mesmirio v The (Jan. Pacl.c liy. Co.— Api)'. 40. SI.-. IMeHsior, I'.rp 'iSS Motaye an H'2't M6triHH6 V IJranlt «»24, O'Jit " V Jirit'ro 4 .1 Mottayer v McClarvey !{5'.i Meunier v The Corp. of Levis. 5i'4 Meyer V Hco' I l(i:-i MicliHcls V P)un3oil '277 Michon V Lei^h 424 Ma9s6 V Cote 5!(;j ; MilcH v Aspinwall 4M Millar V Bourgeois.. 108, P24, 130, 152. .35;^ " V Darling 20(i " vl)6chi;ne 107,112,11.') " vDntton il7 " V Lambert 414 j " V McDonald ];!2 I " V Shaw li»l I Milliuaii V Masson 01, 4(il, 4('.4 Milloy V Farmer L^C. " V O'Brien 7.S'J Mills V The Granby Red Slate Co H2 " V Woare (')54 Milne v Uobh 4'.).'t Mireau v Ratolle 181 Mitchell V Butters 717 " V PManaf»han 104 " V Gaucher 107 Miville V Caron Of> Masson v Clhoall 3(i4 " V MuUina 413 " V Tasst' 3(17 Massue v Crebassa 320, 337 Mathews, exp 075 Mathewson v Bush 472 " V (Jadieux ....368, OKI " V O'Reilley 107 •• V The Roval Ins. Co...' 2.J0 '< • V Whitlock 17(1 Mathiou v Barthe 158 " V Brosseau 44 V Treiiiblav 452 V Vachon.— App.... 821 " V Vijjneau 119 Mathon v IMartin 172 Mathews v The Northern Ins. Co ' 220 Maurice v Dearosiers 331 .Miville V I Moat V Mil MofTatt V J v( V t Moisan v I " V J " vll Mollour V I vl Moiaoa v B " vC " vT " V T " vR I\lonar«iuo v IMoncatel v Moiiette V C ^^'n^t■naiH \ •Mon^jeon v I -Monjo, exp. ^lonk, exp, . , .^lonpotit V I ^(onroo V Lii Monta^ifue v 1 Montforant \ Mont^jomery Montminy v Montrait v V Monty v Ruit Mooro V Keai Morandat v A Moreau v Doi " V Leo " v Mai " v Mot Morency v Fo Mor<;a)i v Boi " V CAt. v Lc'P V Lon " v Ricl . ". V Vak •tlorin v Arcai v iJalov " V Fourii " v Hondt " v Honiif " V Peltiei Morrill v Dom Morris v Antrc " V Currit 1 I TABLE OF CASES. XXXV PAOB Miville V Fivy »MH IMoiit V Mai-Huii H70, 41i) Mdffatt V lltirlnnd 2» V Ouirnot HH " V Kt. Amour. 5(17 Moiaan v Ilour^ooiH 101 " V iTor^enBon iSOl, 611 " V Ilocho iJlO Mollour V MoUeur H84 V Miirclmnd .... 74, 80S), .HIO MoUon V Uurrou«h8..70, 72, »0«, .'1(17 " V Carter.. loa, 44.1, 4t5y, 057, «0'2 " V The Mayor, Ac, of Montroal.... 559,574 V The Moisio Co iH't V Router 128 I\t()nnr(iuo v Clarke 520 ^[oiicatel V UoHH HIU Ivlouette V Charotte 5(17 Mnnnt'iiaiB V Piloii 281 M()uj;eon v Larin 2(17 Monjo, rrp 824 Monk, ('.r/» 585 Monpotit V Poladuau ISO .Mouroo V Laliberti 88, 1)4 Moutanuo V Tlio (lazetto Print- iiiK' & P. Co ... . 251 Montforant v Dortrand .S.'l Montgomery v Lvster. 40(1, 4(18, 474 V Price .H(17 Montmiuy v Tanpiit !)7 i Montrait v Wilhamu Ud, 278 ' Monty V Huiter i)4 ! Moore v Kean (110 i Morandat v Varot 473, 481 i Moreau v Dorion 151 1 " V Leonard 82, 172, 2(14 " V Mathewaon H37 ' " V Motz (117 : Moi-oncy V Fournier 275, 27!) ; JIt)r'^iin V Bonjaniin (14 ' " V t'At6 578 1 V LoHouthillier 480 ' vLord 371) '• V Richard 177 V Valoia 84 Moiin V Arcand Ill) V Daley 345, 4.52 " V Fournier 180 " V Henderson 1(1(1 " V Homier (IDS) ! " V Peltier 505); Morrill v Donald 108 | Morris v Antrobua 323 " vCurrie— App 820 rAOR Morris v The Can. Iron and B. Co.— App 832 Morrison v C!yr H!)5 *' V Dambour^oa .... (J2ft " V l)oloriinier..l99, 075, (180 *' V Kierzkowaki .... 14(1 " V Wilaon .101 Morro^h v Huot 102 Morao v Drooka 4(1 Moaa V Dou^^lasa 178 " V Roaa (19, 1(18, 104 " V Wilaon 210, 452 Mountain v Dumaa 118 V Walker 109 Mouaacau v Rate 581 V Picard 20(1 Muir V Miiir (129,059 MulhoUand v The Co. Ac, of A. Cha^^non.. .H5 " V Ilalpir 284 Muldoon V Dunne 279 Mullarkey v Phaneuf 4(10 Mullin V Archambuult (159 Munn V Halferty 334. 514 Murphy v Campbell 2(13 " V Kiiapp (11 " V MofTatt 843 Murray v Gorman 141 N. Nadeau v Pacaud 27(1 " V Ht. Jacques (119 Naud V Smith 274 Neil V Chamiwux 30(1, 307 " V Thompson 290 Namur v The Trust & Loan Co. (129 Neilan v Deniers (109 Neilson v The Union Co 1(11 Nesbitt V Turjjeon '22 Nette V Damour 351 Nevfu V RalKniu 5011 Ni^htinnale v La Soc. do Const, de St. J (14 1 Nichols V llioB IhO Nield V Ferland 4(17 Noad V Von Kxeter 102 Noel V Laverdiere 330 Nolan V Dastous 15, 297 Nordheinier v Duplessis .... 21 V Roy 504 Normand v Huot 141 r ! jil ■ U XXXVl TABLE OF CASES. PAOE Normandeau v Bougie 607 NyevOoJvillP "; " V iHiiacBon f^° " vMalo ;• \l\ " V Potter '*^' IYu N y steel V Darby Bon 44» O'Brien V MolBon 1^0 •' V Thoman 180 O'Connell V Frigon 219,221 '• V The Corp. of Mon- treal 204 O'Connor v Brown U'8 •• V (Couture 48 •I V Raphael 'Ai> O'Dowd V Brunet 830 O'Farrell v Brassard <555 " V Doucet 578 vO'Neil 257 " V The Council of the Bar 578 •' V The Reciprocity Man. Co 28!) O'Gilvy V Jones .• 170, 053 O'Halloran v Barlow 104 " V Sweet 28« Oldfield V Hutton 150 Olivet V Darling 112 Olivier v B61an(,'er 398 Olsen V Forsterson 33 O'Malley v The Scottish Com. Ins. Co 36 O'Neil V Fontaine 868 " V Morrico 630 Organ v Bentley 347 Osborne v Nitsch 494 Osgood V Cullen 643 vKellam 124, 147 Ostell v Joseph 717 " v O'Brien 127 " V Pelloquin 4<)3 Ouellette v Vallieres 449 Ouimet v Desjardins 453 V Gravel 277 " V McCallum 350 V Papin 281 V Picotte 216 Oviiitt V McNabb 05 Owens V Dubuc 109 PAOB P. Pacaud v B6gin 102, 509 vDub6 42fi •• V Oagn6 659 " V Hooker 93 " V The Montreal Tel. Co. 66 " V The Corp. of Prince- vllle lU •• V Quesnel 26 V Rickaby 5H1 " V Roy 0.')7 V St. Hi'aire 279 Pagfi V ChariMsntier 102 " V Griffith 615 Paige V Savard 325 Painchaiid v Hudon 659 Pallisor v Roy 377 Palmer, ejp 673 Palsgrave v Senecal 335 Pangman v liuchanan. . . . 630, 641 vPauzi* 155,431 Panneton v Guillet 68 Panton v Woods 101 Taquet v Binette 54:J " V Gaspard 129 " v Glubenski 20 V McNabb 461 vPorier 297 vTheCan.Pac.Ry.Co. 40 Paradis v Cuesteau 62 " exp 581 " V Poirier— App. . . 474, 815, 816, 818, 835 Parant v Grenier 32.'1 v Talbot 36(1 Parent v Laplante 188 " v Loiselle 518 •' v Pacaud 96 Park V Rivard— App 816 Paris v Couture 565 Pariseau v Grenier 292 Patcnaude v Charron 284 " v Guertin 327 vMcCulloch 114 Partridge v McLeod 48 Patoille Guilniette 334, 351, 602 Patris v B61nngcr 20 Patterson v liurne 469 " V Farran 472 V Hart 479 Pattison v The Mut. Ins. (Jo. of Stan oO, 57, 59 :i -y i i TABLE OF 0A8S8. XXXVll PAOK I'ntton V Morin 41B Paulet V Antaya 46'J ■* V Lariviiro lUl Pearoo v Kelly 600 Pook V Murnhy '2H4 I'ediiaud v Perron !i02 Pelletier v ChaBH6 41ft Pulo;cr8 154 Price V Halo 2.53 " V Nolflon 101 " V Percival 2"> Prince, exp 585 Prior V Dolaniar 350 Priv6 V Dillon 31s Privitt V Hexton i'Oti Pnmlx V Pronlx 157 Prowse V Pa^neulo 23 Qninn v AtclicBon 458, 4*»1 Quintal v Meunior 50i " V Roy 87, 275 Quirouet v Wilson 341, 387 If-- ',• " r"1 h' S r 1 ) .-. i ! 1 i 'M t>li. n XXXVlll Racey v Oliva 117 " V Stephenson 119 Racine v Kane 3<'l Radiger, cxp. & Hawkins fi(i5 Ramsay v David 19'J Ranger v Chevalier 140 " V Seymour H85 Rankin v Lay 216 Raphael v McDonald, 467, 473. 501 Raymond v Walker 483 Redpath v Bhukmon 125 " V Giddins 451 Reed v Rascony — App 817 Rees V Morgan 151, 167 Reeves v Archambault 44 Regina v Barbeau 679 " vBelleau.. — 146 " vBrydges 677 " V Carrier 680 " vCoote 200 " Ex rel. O'Farrell A Brassard.. 300, 578, 579 &Garneau..86, 116 " V Garon 71 " V The Exchange Bank —App 821 " vHull 298 " v Morrison 327 Reilly v Chandler 509 Reinhardt v Hausseman 416 Renaud v Gugy . . KJO, 213, 274, 221 > " vProulx 49 I " V Vjwideusen 459 ! Renifire v Millet 638 i Renny v Mowat 656 I Rex v Deagagnos 680 i " v Gingras 67() ' " V La Fab. de la Pointe aux Trembles 506 i " V .Saul 21 Rheaume v Panneton 95, 520 i Rhodes v Robinson 463 ' Ricard v Leduc 35 ! Rice v Libby 255 '' Richard v The Champlain & ' St. Lawrence lly Co 146 " v Denison 21 v Michaud 506 i vPiche 3C5 " V Ritchie 288 V Wiirtele 469 TABLE OF CASES. 4. PAGE I PAOi; I Richardson v Molson 35!) Richer v Voyer 657 Riddell v Mc Arthur 631 Riddell v Evans 649 Riendeau v Casey — App 821 Rioi)ol v Arpin 491 Ritchie v Thomas 22, 47 Rivard v Courtemanche .... 196 " v Belle 323 Rivet V Poisson 47, 92 Robert v Bean 2t) " V Fortin 347 " V Leblanc 129 " V Northgraves 419 " V Robert 223 Roberts v West 4()3 Robertson v Attwell 493 V Pollock 2.'J2 " V Ferguson 508 " V Fontaine 32 " V Hale 466 " V Marlow 74 V Smith 507 V Stuart 103,539 Robicheau v Eraser 99 Robillard v Finn 39 " V La Soc. de Constr. 23 Robinson v Bower 27(i " v Keiffenstein . . 47, 506 Robitaille v l^olduc 330 v Drolet .397 Rochetto v Laberge 178. 180 v Oucllette 630 Rochon v Eraser . . .\ 200 I Rodden v Olier 503 ' Rodger v Chapman 119 Rodier v Hcbert .593, 610 " V Joly 513 " V MacAvoy 44S Rogerson v Begin 27t) Rolfo V The Corp. of Stoke. —579, 638 Rolland V Cassidy 717 " V Dupuis 876 " V Guilbeault 457 " V Larivicre 260 " V Rcuger 350 " V The Citizens' Ins. C'o <.»6 Romaino v Dugal 129 Rondeau v Cliurbonnoau ..542, 543 Rose, exp 672 V Burns 4(t0 Ross V Corrigan 402 " V Left'bvro 144 " V Marceau 71 (I ft Ros8*v Masoi " V Morin " vO'Lea V Palsgi V Prudl] V Ross " V Scott " vTheCi " V The C " V Wyse. Rouleau v Ba( " exp " V Lai " V Lor " V Tre Rousseau v H V Tr Routier v Robi Routh V Dougj " V Macpl " V Magui Roy V Beaudin " V Beaudry " V Bergeroi " VBlaydon " V Eraser '• V Primeau " exp " V Gagnon " V Gauthier " V Scott . . " vThe Cha Lawrer " V Thibault Russell V Field . " V Eouni " V Gravel Rustoii V The C So Ryan v Chaffers " V Devlin . " vMalo... " v \Vard . Ryder v Vaughai Uyland v Delisle v Ogilvio V Routh Statutes : C. H. L. C.,c 29-.30 Vict. c. TABLE OF CASES. XXXIX I'AQF. Boss* V Mason 342 " V Morin 581 " vO'Leary 450,453 " V Palsgrave 274 " V Prudhomme 554 " V Ross 515 " V Scott 30, 023, (554 " V The Citizens' Ins. Co. . 144 " V The Corp. of Horton. . 2!> " vWyse 91 Rouleau v Bacqijet 167 " e.rp «)77 V Lalonde— App «17 " V Lortie (il7 " V Treniblay 42(5 Rousseau v Huj^hes 35, 37 V Trudel 10'.» Routier v Robitaille 202 Routh V Dougall 81 " V Macpherson 508 " V Maguire 121, 139, 347 Roy V Beaudin 4G7 " V Beaudry 448 " V Bergeron (50(5 " V Blaydon 22,47 " V Fraser 271, 578 '• V Primeau 415 " exp (57,070,(578 " V Gagnon 284 " V Gauthier 140 " V Scott 3(50 " V The Champlain & St. Lawrence Ry. Co. . . . 718 " V Thibault 5(53 Russell V Field 117 " V Fournier 402 " V Graveley 039 Ruston V The Quebec Build. So 549 Ryan v Chaffers 82 " V Devlin '2m " V Malo 13(5 " V Ward 25i) Ryder v Vauj^han 50 Ryland V Delisle 319 v Ogilvie 109 V Routh 301 PAGE Statutes : 31 Vict. Statutes : C. H. L. C, c. 2 3 29-30 Vict. c. 25 7 c. 7, s. 2, § 25 .... 16 " c. 13, s. 4 354 " c. 20, ss. 1-3 328 " c. 24, 8. 41 58 " c. 25, s. 50 58 32 Vict. c. 11, 8. 33 582 " c. 20, 8. 1 272 c. 20, s. 2 273 " c. 21 597 " c. 20 684 c. 30 606 c. 37 328 33 Vict. c. 13, s, 3 237 c. 10 528 c. 17 44 8. 1 113 s. 2 355 c. 18 184 34 Vict. c. 4, s. 1 183 ss. 2, 3.. 196. 198 " 8. 4 2(59 8. 5 295 " 8. 337 s. 7 391 8. 8 392 s. 9 591 s. 10 295 8. 11 608 B. 12 015 s. 13 021 s. 14 661 35 Vict. c. 5 517 c. 6, 8, 1 58 " 8. 2 60 8. 106 88. 7-8 183 H. 9 194 ss. 10-12 242 " 8. 13 247 s. 14 310 s. 15 333 " 83. 10-17 338 8. 18 490 8.19 546 8. 20 .549 s. 21 559 s 22 5(57 8. 23 597 s. 24 (504 " 8. 25 ;>95 8.20 319 s. 27 598 8.31 591 8.32 (590 c. 7 697 ■■'-Ji' :|^ii^/": ''' ''^^H ''1^ mi:! ^r?:^ '■{ 'l ■:i . ''.'^ ■ ' '; V ' ■ ^M' .,- 4 B; '■'■ 1; m m '■'. ,':m Iffil,' m§ '^immm :\m JjSL ' ^ 1 ' 3] 1 1 :i xl Statutes : ar> Vict. 0.10,8. 7 .. <> s. 8 ..< " 0. 14 c. 17 c. 18 c. 19 " c. 20 37 Vict. 0. (i c. 11 38 Vict. c. i) c. 10 " c. 12 39 Vict. c. 33, 8. 24 . 40 Vict. c. 13, a. 2 . " 5 . c. 10 c. 11 c. 12 , c. 13 , c. 14, c. 20 , c. 21. c. 24 , c. 25. 43-44 Vict. c. 2r> , 45 Vict. c. 34 " c. 2(5, 88. 1-3 " s. 4 . 8. 6 . c. 27 47 Vict. c. 3 c. 8, 8. 1 ... " 8. 2 <4 It II II II T.\BLE OF CASES. PAGE .. 270 , . 299 .. 517 .. 698 .. 698 . . 329 .. 33 . . 296 . . 6t)7 .. 62 ,. 273 . . 369 . . 683 . . 269 , . 276 41 Vict. c. 9 708 ,. 713 , . 703 , . 513 ,. 558 ,. 570 42-43 Vict. c. 19 16 45 600 375 396 381 44-45 Vict. c. 18 •• i«l, 370 232 46 Vict. c. 16 232 14 291 621 582 194 14 187 14 77 76 79 197 IS Vict. c. 13 c. 14 II II u II II 2 8. 3 .' . .' .' ." ." 8.5 8. 6 8. 7 8. 8 88. 9-10 591-2 8.11 60M 16 392 17 396 15 608 c. 20, 8. 4 8. 8. 8. 8. 8. I) 6 7 8 9 8.10 15 79 1 224! 271 ' 15 339 : 353 , PAGE Statutes : 48 Vict. c. 20,88.12-13 s. 21,8. 8. B. 14 1 2 3 0. 22— App . c. 23, 88. 1-4 8. 5 . 476 .. 712 . . 295 .. 300 .. 303 440, 822 . . 592 .. 61 Sabine V Krans 155 Saltry, exp 675 Salvas V Gu6vremont 259 Sansfa^on v Boucher 514 Sarault v EUice 138 Saundersou, crp 586 V Roy 377 Sauvageau v Gauthier 658 Savard v Savnrd 535 Saxtoa V Paradis 825 " V Sheppard 346 Scantlion v Harthe 92 Scatclierd v Allan 300, 302 Scheffer v Fauteux 131 Schofield V Leblond 250 V Rodden 344 Scott V Allain 334 " V Austin 107 " V Hardy 47 " V Payette 222 " V The Pha'nix Ass. Co. —636, 715 " V Scott 206 Scroj,'^y V Gordon 636 Scullion V Perry 120 Seaton v Boston 191 Secretan v Foote llC Seery v The St. Lawrence Grain Co Senecal v f 'henevert V Hart " V La Cie. D'lmpri- nicrie de Q " V Lemoine " V Pacaud " V The Richelieu Nav. Co V Vieune 376, 515 Herrurior v La^arde 513 Sevif,'ny v Pi'ovoncher 7lH Sewell V Bourke 416 " V Vannevar 481 Seymour v Horner 156 V Wri^lit 180 Sharpies v Duniais ... 89 V Rasn 494. 501 Shaw V Batman 363 53 35 824 97 o:i 35 250 Shaw V Bo " vMc " vMa " vMe Shclton V t 'jheppard v - " \ V V Sheridan v V V Shortis V Li vN( Shupe V Vai Shuter v Gu Sicotte V Rei Siegert v Ha Silcot V Papi Simard v Fr " V Ma " vP6 " V Th V To " V Tu Simon v Bou Simoneau v ( Simpson v B« Sinclair v Fe vM( Siroia v Guin Skead v Mci) Slack V Belle " V Short Slater v Belis Smart v The laga Smith V Bour " V Chrcl " V Dono " V K«an V Noad " V O'Fai " V Sexto Soncis V Bucl Souiiere v Ilei Souprua v Bot Si)elnmn v Ro ' exp. Sproul V Corr St. Denis v BO " v(;r St. Jac(]uc8 V St. Joan V Ble TABLE OF OASES. XU PAOK ShawvBonrget 870 " vMcConnell 490,493 " V Mackenzie 454,463 " V Meikleham 615 Khclton V Kerns 842 ^heppard v Buchanan 800 *' V Daweon 260 " vMorin 291,298 •' V Tonnancour .... 75 Sheridan v Bourne 127 V Henneasey 456, 458, 459 " V The Ottawa Agric. InB. Go 657 Shortis V Luckherhoff 873 V Normand . . 422, 439, 616 Shupe V Vasey 39 Shuter v Guyou 180 Sicotte V Reeves 170 Siegert V Hartlandt 71 Silcot V Pupiueau — App 819 Siniard v Fraser 641 " V Mathurin 48 V P6rault 19 V Tlie Corp. of Mont- gomery 578 V Townsend 639, 658 V Tuttle 141 Simon v Bougie 216 Simonean v Campbell 89 Simpson v Bowie 189 Sinclair v Ferguson 508 V McLean 267 S'rois V Guimond 066 Skead v McDonnell 216 Slack V Bellemare 282 " V Short 283 Slater v Belisle 481, 482 Smart v The Corp. of Hoche- laga 566 Smith V Bourne 506 V Chr6tion 19 " V Donovan 66 V Kgan 627 " V Nortd 286 " vO'Farrell 213, 312 " V Sexton 568 So"cis V Buchanan— App. ... 817 Sounere v llerron 283 Soupras v Boudroan 325 Si)elman v Robidoux 623 exp 682 Sproul V Corriveau 110 St. Doiiis V Bohmger 68 V Grcnier 199 St. Jaccjues v Parent 282 St. Joan V Bleau 138 PAOK St. Jemmes v De Montigny . . 185 St. John V Delisle 128 St. Louis, exp 560 Ste Marie v Brown 151 St. Michel v Vidler 470 St. Onge V Laricheliire 521 Stack V King 205 Stalker v Hammond 109 Stanfield v Massey 17'.> V Stanlield 537 Stanton v The Home Ins. Co. 655 Starke v Mas-Je;^' 176, 193 Starr v McDonald 191 Stephen v The Montreal P. & B, Ry. Co 561,573 Stephens v Bonthillier 2 '> " V Hopkins 140 V The City of Men. treal 572 *' V Tidmarsh J 17 Sterling V Darling 414 Sternberg v Dresser 359 Stevenson v Boston 3S;» " v McOwan Ki? " v Robertson 'H)3 Stewart v Hamel iHH " V Langley 542 Stiguy V Stiguy 289 Stilson V Anderson 20 Stopplebcn v Hull 585 Strother v Torrance 82 Stuart V Ledoux 509 " V Scott 631 Sullivan v Smith 626 Sundberg v Wilder 654 Sutherland v Heathcote 106 Sylvester v Manseau 24() Symes v Farmer 320 " v Heward 52, 9)» " V Voligny 100 The Bank of America v Cope- land 135 The Atty-Gen. v Ellice 618 The Bank of B.N. A.v Cuvillier 193 " . V Whelan 101, 105 " of Montreal V Brown 468 " of Toronto v Hen- derson 6o() " of Upi^er Canada v Alain 456 «' " vTurcotto 135 ! I i ' 11, i? ill i xlii TABLE OF CASES. 11 ', PAGE The Corp. of Bienville v Na- deau 25 The Corp. of Drummond V The Corp.ofSt.Guillaume... 580,593 The Corp. of Drummond vThe South-East' n Ry.Co. :J73 " of PrincevillevPacaud lid " of Quebec v Piton 77G " of St. Jean B. v La- chance 129 " of St. Martineiv Hen- derson H!) " of St. Philippe, exp . . ?ir,H " " V Lussier <(H9 " of Terrebonne v Valin. 58 " of Wm. Henry v Guev- remont (JOl " ofThrce Rivers V Major 97 The Dom. Type F. Co. v The Can. Guarantee Co '29G, 018 The East-Hampton Bell Co. v Grose 113 The Eastern Townships Bank V Morrill 91 The Eastern Townships Bank V Pacaud 298, 425, 434, CIG The Eastern Townships M. Fire Ins. Co. v Bienvenu,. . . 39 The Exchange Bank v Craig 182 vNapper, 72, 94 The Fabrique of Montreal, exp. 075 City of Montreal 019 '■ The Eraser Institute v Moore. 518 Tan Ext. Co. vFolev The Glen Brick Co. v Walker. 032 —110. 114, 211 I The Globe Ins. Co. v The Sun The Carillon & Gren. Rv. Co. Ins. Co 107 V Burch ' 80 The Grand Trunk Ry. Co. v. The Champlain & St. L. Ry. Godbout 010 Co. V Russell 55 i The Guarantee Ins. Co. v Be- The Citizens' Ins. Co. v. Lajoie 230 | thune 184 The City Bank v Coles 198 i The Heritable Sec. & M. Co PAGE The Beacon Fire & L. In. Co. vWhyddon 95 The Board of Temporalities Ac. V The Trustees of St. Andrews 57, 019 The Bowker Fertilizer Co. v Cameron 109 The Burlaud-Desberats Co. v Bemister 202 " Lith.CovBilaudeau 24 The Can. Bank of Commerce v Brown 33, 144, 479. 482, 022 The Can. Bank of Commerce v McGauvran 110 The Can. Bank of Commerce V Papineau 100 The Can. Building So. v Lofre- naye 1*54 The Can. Central Ry. Co. v Murray 057 The Can. Copper Co. v Shaw 110 The Can. Inv. Co. v Hud jn, 23, 030, 035 " V Macpherson 80 The Can. Lead Min. Co. v Walker 80 " Nav.Co.vMcConkey 304 " Paper Co. v Banna- tyne 223, 459 " V Carey 511 ' Rubber Co. v The V Hunter.. 494, 504 V Laurin .... 007 " V The Bank of Montreal . . " V Pcmberton .. The City of Montreal v Devlin.. " " vLoignon The Columbia Ins. Co. v Hen- derson 107 The Comraer. Mut. .Build. So. v Mclver 419 Tlie Consol. Bank of Can. v V McKinnon 380 The Heritable Sec. it' M. Co. v Racine 90, 299, ;)15, 018 125 ' The Heritable Sec. it M Co. v Wright 391 The Harbor Conim. v Hall .. . . «;^'i The Hochelaga Bank v Gold- ring 050 The Intercolonial Coal Co. v Shaw 287 The Jacijues Cartier P. B. So. V Rov 450 40 000 523 The Town of St. Henri .... 373 I The Mayor, &c. of Iberville v The Corp. of Acton v Feltou 590 | Jones 578 " of Bienville v Gil- j The Mayor, etc. of Montreal v lespie 00, 590 , Benny 577 TjiG Mayor Bisonotte The Mayor, Druinmoi The Mayor, Hubert The Mayor, Manson The Mayor, Ransom . . The Mayor, Wilson . . . The Mayor, d strong.. . . The Mayor, Newton The Median i TheMercliaiii TlieMerchant treal P. it B The Merchar , piiy . The Metacom< The Moisie Ir —4. rheMolsons'l u •( (( « II The Montreal A livray The Montreal A pherson The Montreal P V Hatton The Montreal ( Bank v Gedde The Montreal Co Corp. of Salab Iho Montrail ( The Corp. of \ The Montreal .t V Dixon i'lie Mut. Firo Ktanstead v G* Tlie Mut. Fire In etto V DesroHst ilioNat. Ins. Co TABLE OF CASES. xliii PAGE. Tiio Mayor, &a. of Montreal v Biaonette 437 The Mayor, Ac. of Montreal v Druinmond (518 The Mayor, &c, of Montreal v Hubert 002 The Mayor, &o. of Montreal v Manaon 127 The Mayor, &o. of Montreal v Ransom 206 The Mayor, &c. of Montreal v Wilson 30!) The Mayor, Ac. of Sorol v Arm- strong ")78 The Mayor, ifeo. of Sorel v Newton 01 The Mechanics' Bk. v Keale. . . 135 V St. Jean 020 The Merchants' Bk. vWhitfield 003 V Clarkson 189 ThoMerchants' Bk.vThe Mon- treal P. & B. Ry. Co 350 The Merchants' Bk. v Mur- phy 45 The Metacomet Bank v Paine. —474, 482, 032 The Moisie Iron Co. v Olsen. —451, 450, 469, 474, 481 The Molaons' Bk. v Campbell... 482 " V Con verse.. " V Faulkner . . 168 •• vLionais, 148, 155, 358, 303, 308 " V McMinn . . 408 •• """he City of Montreal 151 The Montreal Abs. Co.v McGil- livray 120, 251, 053 The Montreal Abb. Co. v Mac- pherson 90 The Montreal P. & B. Ry. Co. V Hatton 508, 824 The Montreal City & I). Sav. Bank v (leddes 102 Tbe Montreal Cotton Co. v The Corp. of Salaberry 580 The Montreal Cotton Co. v. The Corp. of ValleyJicld. 040, 042 The Montreal iV O. Forw. Co. V Dixon 290 The I\Iut. Fire Ins. Co of Stanstoad v Galiput 39 The ^lut. Fire Ins. Co. of Joli- ette V DeHrousoUes 39 T!ie Nat. Ins. Co. v Paige 38 " V Cartier . . 35 PAOB The Newark Pat. Leather Co. V Wolff . . 110 The Now City Gas Co. v Mc- Donnell 205 The Niagara Ins. Co. v MuUin —107, 109 The Nortli Brit. & Met. F. & L. Ins. Co. V Lambe 571 The Northern Ry. Co v Patton 024 Tbe Ontario Bank vDuchesnay 017 The Pateut Guano Co.v Maule 502 The Prin. Oificers of Artillery V Taylor 119, 581 The Quebec Bank v Baby 172 " V Maxham. 245 V Paquet . . 278 vRoUand 1(57, 241 " V Steers, 115, 481 V Stuart .. 371 The Q'bec Build'g So. v Atkins 329 The Quebec Fire Ins. Co. v Anderson ()57, 001 The Quebec Shipping Co. v Morgan 39 The Ry. Advert. Co. v Ham i on 38 The Richelieu Nav. Co. v An- derson 273 The Royal Ins. Co. v Knapp. . 459 The School Com. of Hocholaga v Ilogan 29, 590 The School Com. of Sillory v Gingras 591 The School Com. of Sorel v The School Com. of Wm. Henry 58 The School Com. of St. David V De Varennes 518 The School Com.of Ste. Marthe V St. Pierre 25 The Seminary of Quebec v Vinet 022 The Singer Man. Co. v Beau- I cage 101, 107 The Sol.-Gen. v Darlinj, .... 144 ; The South-Jiastern Ry. 'o. v Lambkin Or/;) I The Stadacona Ins. Co. v i Gagnon 310 The Stadacona Ins. Co. v Trudel 133 The Standard Fire Ins. Co. v Howlov 09 The St. Lawrence A O. Ry. Co. v Frothingham 91 , 138 The St. Lawrence (irain EI. Co. v The Harbor Com 559 l''M ■ 1^ 1 1 it I- 1 m 1 i i:i ! ' 1 ' ^ y >''^'* ]' 1," ■t)-s ('iioMa'i* ' ife 4', ■■1-: ' i i ''i I I !fl m xliv TABLE OF CASES. PAGE The Trust & L. Co. v Doyle 347, 405 I' " " V Dupraa.. 408 •> <• " V CaBsidy.. 472 •• '< " V Jones. . . 417 " " " V Julien .. 385 " " " V Mackay (50, 09 '• " " V Quintal.. 34 The Union Bank v Dawson. . . 820 " " V McDonald 91 The Tj nion Nav. Co. v Rascony 581 The Unity Fire Ins. Co. v Hickey 181 The Victoria Mut. Fire Ins. Co. V Carpenter 107 The Water-works Co. of Three Rivers V Dostaler 053 Tacho V Levasseur 254 Talbot V Donnelly 463 " V Limeau 10 Tanguay v Ducrow 101 Tansey v Bethune 356 Taplin V Beckett 216 Tardif v Gingras 435 Tnrratt V Barber 212 V Foley 174,211 Tass6 V L&berge 265 Tate V James 224, 275 '• V McNevin 265 " V Smith 474 Taylor v Brown 3(16 '' V Molleur 629 vMullin 207 vSenecal 98 V The Queen 660 Terreau v Lacoursitire Ill Terrien, exp 681 Terrill v Haldane .... 165, 264, 2(;6 Terroux V Dupont 337 " V Garreau 355 vHart 326 Tejsier v Lcj^ault 475 Ti'treau v Bouvier i i4 T6tu V Chinic 415 " V Martin 44 • • V PcUetier 464 Thayer v Koss 776, 826 TliLTien v Wadleif• V Kobitaille 343 " V Roy 133 de St. R6al. f^i) (577 Valin V Anderson 262 " V The Corp. of Terre- bonne 308 Valois V The School Com. of Hochela^a 660 Van de Vliet v Feniou — App. . 821 Vaughan v Campbell 117 Veilleux v Ryan 203 Vellet V Thifeanlt 272 Venner v Barnard 436 " V Lamontagno 293 " V Segui 52, 96 Ventini v Ward 474 Vermette v Fontaine 452 Versailles v Bailey 362 V6zina v Gibeau 32 " V The New York Life Ins. Co 36 Vidal V Demers 394 Viger V Beliveau 623 " vPothier 103 Vincelette v The Fabrique of St. Athanase 560 Vineberg v Harrowitch 493 Vocelle V Faucher 125 Voisard V SandKis 519 Voligny v Coibeille 306 Vossv Coffin 189 Voyer v Guyon 119 W. Wade V Ilussey 330 Wadleigh v. Painchaud 112 Waggoner v Ricker 78, 520, 624 Wagner v Farran 92, 93, 138 lAGK Wainwright v The Mayor, etc., ofSorel 100 Walcott V Robinson 153, 182 Waldron v Brennan 55 Walker v Burroughs 345 •' V Ferns 482 " * V The Mayor, etc., of 8orel....90,92, 143, 621 Walters v Lyman 173 Ward V Carsley 280 " V C'Ousine 501, 51 3 " V Newall 27(1 Wardle v Bethune . . . .219, 617, 6'j'2 Warner v Blanchard 367 " V Fyson 4C2 " V Mernach 142 " V Rolf 285 Warren v Douglass 342, 347 " V Kay 35 " V Morgan 470 Waters v Verronnean 219 Watkins v Denman 277 Watson V Smith 302 V Thompson 454 Watzo V Labello 350, 4411 Webster v Philbrick Ids Wtinrobe v Solomon 49;s ^Veiling V Parant 202 Welch V Baker 35 Wescott V Archambault .... 100 Westrop V Nichol 49 Weymesa v Cook 283 Whelan v Keeler 118 Wheeler v Burkitt 90 White V Foster 604 " V Whitehead 572 Whiteheatl v Dubeau 353 exp 6K0 V Keefer 297,824 Whitefleld v Hamilton 143 Whitney v Badeau 182 282 627 72 6^)4 6(i3 98 V Brewster (il, V Brooks . V Dunning Whyte V Foster 277, " V The Home Ins. Co. . , " V Lynch Wieppert v Iffland 149 Wilhelmy v Brisebois 2(i Williams v Montrait 'JTH Williamson v Rhind 258 Willis V Pierce 210 Wilson V Arnold ''1 " V Brown ii'". " V Brunet 'i"5 " V Ibbotson i"4 xlvi TABLK OF CASES. PAOE Wilaon V Loblanc 324, 377 V Morris 28i> " V Parisoau 344 V Itaftur 614 '■ V Reid 401 " vRoy 4<)2 V Sponcer 354 •• vThe Grand Trunk Ry. Co 247 " V The State Fire Ins. Co 229 Winning v Fraser 458, 484 " V Leblanc 485 Wishaw V Gilmour 228 Witman v Stanbridge 145 WoodvGatoa 358 " V McCallum 250 " V McLennan 448 " V Ste. Marie 82 " V Swinburne 189 " V Wilson 312 Woods, In re, and Lajoie .... 389 Woodman v Grenier 399, C34 " V Letourneau 422 PA(iK Woodrington v Taylor 282 Worthen v Holt 270, 480 Worthington v St. Jacques.. . . I9;j Wright V Foster 054 V The Corp. of Stone- ham lli'iH Wur telle v Arcand 227 " V Douglass 350 " V Lengham 3h " V Price Hjn " V The Bishop of Que- bee (iiri " V Verrault 61-j V Senecal 510 vTheLevisd'K.Ry. Co 380 Y. Yon V O'Connor 330, 889 Young V Baldwin 289 Wyatt -.-«M««\ m: STITUTES AND PROCLAMATIONS. 1 Crown, were of I'liriH, nio( tions of till' 1 timt till' ^reai a lunnuHjjo w] Britiwli oii^'in toiijiuo of tllOf force in Fihik Hiul ri'(liui'(l t Lower Ciumdi and it is Inroi tlio foniin«'iitii llie Kri'iit iidvi I'm net' H8 ill t t'X|H?dit'nt to CiiMidii: Thfi till' lA'jjisIiitivo II 1 j "-'-;■' 1 i,lii AN ACT Respecting the Codification of the Laws of Lower Canada relative to Civil Matters and Procedure. (Comolulated Statute* for Lower Canada, Chapter 2.) \ 1 MIJ^HKAH the LawB of Lower Canada, in Civil Matters, are mainly * * tlioHO wliith, at the time of the cenHion of the country to the Hritinh Crown, were in force in tliat part of France tlien Ko Jrned by the Custom of I'aris, modified by Provincial StatutoH, or by the introduction of por- tionw of the Law of I^n^hmd in peculiar caHcs; and it therefore happens, that the ^reat body of laws, in that division of the Province, exist only in a lan^!uii)^o wliich is not the mother tongue of the inhabitants thereof of British origin, while other iwrtions are not to be found in the mother ton),'iio of tiioHe of French orijjin : and whereas the I^aws and Customs in force in Frame, at the period above mentioned, have there been altered and reduced to one general Cixle, so that the old Laws still in force in Lower Canada are no lon>>8 remunerated for their services at such rate not exceeding three thousand four hundred dollars per annum, as the Governor in Council shall determine, but the said Secretaries shall give their whole time to the duties of their office. Ibid, 8,17. Respecting t ■ "U7HEREAS of the C< Laws of that di\ that portion of tl Procedure of Lou they hold to be n they believe then think desirable, s the reasons on wl with the require! CODIFICATION OF THE LAWS. t 18. If any Judge of the Court of Queen's Bench or Superior Court for Lower Canada is appointed such Commissioner as aforesaid, he shall, while acting as such, receive no remuneration as Commissioner except li'ie excess (if any) of the remuneration of a Commissioner over his salary as Judge ; and any Assistant Judge to be appointed to supply the place of any such Judge while acting as Commissioner, shall receive a salary to be fixed by the Governor in Council, but not to exceed the highest salary of a Puisne Judge of the Court to which he is appointed ; so that the charge upon the Province shall not be increased by the appointment of a Judge or Judges as Commissioners. 20 Y. c. 43, s. 18. 19. The Commissioners shall hold their meetings at such place as shall be ap pointed by the Crovemor, and the Secretaries shall keep min- utes of the proceedings at such meetings. Ibid, s. 19. 20. The remuneration of the Commissioners and Secretaries, with such expenses as may be incurred by them for travelling expenses, print- ing, stationery and other things necessary to the due performance of their duties under this Act, shall be paid by warrant of the Governor, out of the Consolidated Revenue Fund, as shall also the rent of their place of meeting' 'f such place be not in any public building. Ibid, s. 20. S! ">•' noneys expended under this Act shall be accounted for to Her 'Ku.i^-^uy and to the Legislature, in the manner provided by Law. Ibid, s. 21. Wmm m AN ACT Respecting the Code of Civil Procedure of Lower Canada. (29-30 Vict., Chap. 25.) \1 THERE AS the Commissioners appointed under the second Chapter ** of the Consolidated Statutes for Lower Canada, to codify the Laws of that division of the Province in Civil Matters, have complet«d that portion of their work mentioned in the said Act ae the Code of Citul Procedure of Lower Canada, embodying therein such provisions only as they hold to be now actually in force, and giving the authorities on which they believe them to be so, and have suggested such amendments as they think desirable, stating such amendments separately and distinctly, with the reasons on which they are founded ; and have in all respects complied with the requirements of the said Act as regards the said Code and '■.A\ m 8 CODIFICATION OF THE LAWS. lilt' 'f a> -ndments ; and whereas the said Code with the amendments snggested h} uhe said Commissioners, has, by command of the Governor, been laid before the Legislature in order that the said Code, with such amendments as may be adopted by the I egislatare, may be mttde law by enactment ; And I eas such of the amendments suggested by the Commissioners and ' other amendmeuts as are mentioned in thj resolutions contained in t iohedule hereunto annexed, have beep finally agreed to by both Hor.rttJ : Therefore Her Majesty, by and witJi tho advice and consent of the Legislative Council and Assembly of Ganida, enacts as follows : I. The printed roll attested as that of the said Code of Civil Procedure of Lower Canada, under the signature of His Excellency the Governor General, that of the Clerk of the Legislative Council, and that of the Clerk of the Legislative Assembly, and deposited in the office of the Clerk of the Legislative Council, shall be held to be the original thereuf reported by the Commissioners as containing the existing law without amend- meiii; but the '.narginal notes, and the references to existing laws or authorities at the foot of the several articles of the said Code, shall form no part thereof, and shall be held to have been inserted for convenience of reference only, and may be omitted or corrected. S. The Commissioners under tho Act mentioned in the preamble of this Act shall incorporate the amendments mentioned in the resolutions contained in the Schedule to this Act, with the said Code of Civil Pro- cedure as contained in the roll aforesaid, adapting their form and language (when necessary) to those of the said Code, but without changing their effect, inserting them in their proper places, and striking out of the said Code any part thereof inconsistent with the said amendments. 9. The Governor may also select any Acts and parts of Acts, passed during the present session, which he may deem it advisable to be incor- porated with the said Code, and may cause them to be so incorporated by the said Commissioners, in the manner hereinbefore prescribed with respect to the amendments above mentioned, striking out of the Code or amendments any part thereof inconsistent with the Acts or parts of Acts incorporated therewith. 4. The Commissioners may alter the numbering of the Titles and Articles of the said Code or their order if need be, and make the necessary changes in any reference from one part of the Code to another, and may correct any misprint or error whether of commission or omission, or any contradiction or ambiguity, in the original Roll, but without changirg its effect. 5. So soon as the said work of incorporation and correction shall have been completed, the said Commissioners shall cause the Code to be reprinted as amended and corrected, carefully distinguishing in such reprint the su original Boll, a a correct print* signed by the : Secretaries, to 1 Council, which marginal notes being held to fo reference only. •• The Gov mentioned, declj the said Code as have effect as la\ of Lower Canadi shall be in force i 7. Tho laws Statutes shall no such numbers an direct. «. This Act « printed with the aforesaid. •■ So much with this Act is ht i! i* CODIFICATION OF THE LAWS. reprint the subatantive amendments and additions made in or to the original Boll, and shall submit the same to the Governor, who may cause a correct printed Boll thereof, attested under his signature and counter- signed by the Provincial Secretary, or one of the Assistant Provincial Secretaries, to be deposited in the office of the Clerk of the Legislative Council, which Boll shall be held to be the original thereof ; any such marginal notes or references thereon as are mentioned in section one, being held to form no part thereof, but to be inserted for convenience of reference only. ♦ 6. The Governor in Council may, after such deposit of the Boil last mentioned, declare by Proclamation the day on, from and after which the said Code as contained in the said Boll shall come into forct and have effect as law, by the designation of " The Code of Civil Procedure of Lower Canada," and upon, from and after such day the baid Code shall be in force accordingly. 7. The laws relating to the distribution of the printed copies of the Statutes shall not apply to the said Code, which shall be disttibuted in such numbers and to such persons only as the Governor in Council may direct. 8. This Act and the Proclamation mentioned in section six shall be printed with the Copies of the said Code printed for distribution as aforesaid. 9. So much of the Act cited in the preamble as may be inconsistent with this Act is hereby re^iealed. PPfW f tXU|^t' •■■■)' M '^'■'' - III! Province or , ^ MICHEL. Canada. / VICTORIA, by the Grace of God, of the United Kingdom of Great Bri- tain and Ireland, Qceen, Defender of the Faith, Ac, »fec., &c. To all to whom these presents shall come, or whom the same may in any wise concern — Gheeting : Geo, Et. Cartier, TT 7 HERE AS in and by a certain Act of the Legis- Jtt.-Gen'l. lature of the Province of Canada, passed in the session thereof held in the twenty-ninth and thirtieth years of Our Reign, intituled : "An Act respecting the Code of Civil Procedure of Lower Canada," it is amongst other things in effect enacted that the printed roll attested as that of the said Code of Civil Procedure of Lotver Canada, under the signature of His Excellency the Governor General, that of the Clerk of the Legislative Council, and that of the ' lerk of the Legislative As- sembly, and deposited in the office of the Clerk of the Legislative Council, shall be held to be the original thereof reported by the Commissioners as containing the existing Law without amendment ; but the marginal notes, and the references to existing laws or authorities at the foot of the several articles of the said (ode, sliall form no part thereof, and shall be held to have been inserted for convenience of reference only, and may be omitted or corrected ; that the Commissioners appointed under the second Chapter of the Consolidated Statutes for Lower Canada, to codify the Laws of that Division of the Province in civil matters shall incorporate the amendments mentioned in the resolutions contained in the Schedule to that Act with the said Codo of Civil Procedure, as contained in the roll aforesaid, adapting their form and language (when necessary) to those of the said Codo, but without changing their effect, inserting them in their pi-oper places, and striking out of the said (?ode any part thereof inconsistent with the said amendments ; that the Governor may also select any Act and parts of Acts passed during that session, which he may deem it advisable to be incorporated with the said Co*) Clerk of the Legis- lative Council of the said Province as aforesaid, shall c )me into force and have effect as law by the designation of "THE CODE OP CIV :L l^tO- CEDURE OF LOWER CANADA;" Of all which Our loving subjects, of Our said Province, and all others whom these presents may concern, are hereby required to take notice and to govern themselves accordingly. In Testimony Whebeof, We have caused these Our Letters to be made Patent, and the Great Saal of Our said Province of . Canada to be hereunto affixed : Witness, Our Trusty and Well-Beloved Sin John Michel, K. C. B., Administrator of the Government of Our Province of Canada and Lieutenant General Commanding Our Forces therein, Ac, &c,, &c. At Our Government House, in Our CITY OF OTTAWA, in Our said Province of Canada, this TWENTY-SECOND day of JUNE, in the year of Our Lord, one thousand eight hundred and sixty-seven and in the Thirty-first year of our Reign. By Order, WM. McDOUGALL, Secretary. COI 1. The ] of the dilfe The coui terms thus either from following tt adjournme^ brouj?ht bel since such : Courts cf sit between except as n public office of habeas co courts for t lessors and title of 'the district of ( Court of Qu c. 82, s. 4 Note.— The 1866, intituled Canada, and th to the said stat ill' h CODE OF ClYIL PROCEDURE or LOWER CANADA. FIRST PART. GENERAL PROVISIONS. 1. The place, time and dui'ation of the terms and sittings of the different courts are regulated by particular statutes. The court may, according to circumstances, shorten the terms thus fixed, or it may prolong them by adjournment, either from day to day, or to any subseqTient day before the following term ; and at any sitting held in virtue of such adjournment, the court may hear and determine all cases brought before it, whether such cases were begun before or since such adjournment. Courts cannot sit on non-juridical days. Nor can they sit between the ninth of July and the first of September, except as regards proceedings concerning corporations and public offices, oppositions to marriages, applications for writs of habeas corptis in civil matters, suits before commissioners' courts for the summary trial of small causes, suits between lessors and lessees, the proceedings regulated by the first title of the second book of part second, and as regards the district of Gasp^^ of Saguenay, and of Chicoutimi, and the Court of Queen's Beach. C. S. L. C. c. 78, ss. 16, 17, 18 ; c. 82, s. 4 ; c. 83, ss. 15, 37, 79 ; c. 40, ss. 5, 6. Note. — The changes and additions made in virtue of the statute of 1866, intituled : An Act re*pectin(t the Code of Chil Procedure of Lower Canada, and those contained in tiie Schedule of Resolutions appended to the said statute, are, in this Code, inserted between brackets [ ] . 1 '. J- if , I ,'ti . M •^ :M,^;ir' 'I'i' 1. ' 14 GENERAL PROVISIONS, AUT. 1. >1 h, 46 Vic, c. 26, (Que.) : 1. Every juridical day Bhall be deemed to be a term day, except for the trial of cases in which the principal demand iu inscribed : (1) For proof only ; (2) For proof and hearing'. The days already fixed in any district for proof or proof and hearing, shall remain Hut apart fur tlie same object, except that thuHu days may be from time to time clian^od, acoordin>« to the manner now by law ostab- lished. This section applies to cases in the Superior and Circuit CJourts. 2. All contested cases, inscribed for proof and final hearing, either in the Superior Court or in the Circuit Court Appealable shall be tried in the presonce and under the direction of the Court, and evidonoo in all such caaes shall be taken by ofticial HtcniojirapherH, who shall bo appointed by the Counciln of Sections of the Bar, upon the reix)rt of a coniinittee of examiners appointed by such council. The councils of sections shall have power to fix the number and remuneration of such steno^^raphers. The official stcno^'rajiliers siiall be ofTicers of the Court, and shall be paid from a fund provided by means of fees, to bo exacted from tho party producing the evidence. The amount of such fees shall be determined by each section, so as to provide tlio amount strictly rwjuired to pay such fees. This fund so created shall be the property of tho sections, to which it appertains. The stenofiraphers shall furnish the Prothonotary or clerk of tho Court with at least ten copies from a Reminj^ton type writer, whicii copies shall be preserved for use in appeal, 3. The tw preceding,' sections shall apply at once to the districts of Montreal, Quebec, Three-Rivers, St. Francis and Richelieu, and shall bo extended to other distric' ■ by order of the Lieutenant Governor in Coun- -»1, upon the -equest of the majority of the advocates, practising and residing in the district. 47 Vic, c. 8, (Que.) : (1) Sections 1, 2 and 3, of the Act Ki Victoria, chj,pter 2(5, are rei)ealod. (3) Article 1 of the Code of Civil Procedure is amended so that iu all the districts of the province except in the cases therein mentioned, the courts cannot sit between the thirtieth day of June and the first day of Septem- ber in each year ; and that in addition, they shall not bo obliged to sit between the twentieth day of December and the fifteenth day of January, nor between the thirty-first day of August and the tenth day of Septem- ber. 4. Artie 87 Victoria, further am« " Notwitl articles «45, inclusively, 48 Vic, (1) Thefl, Victoria, cha " In tho d: juridical day (2) The lae amended by s tli« first line t the district of 1- The 47tl deprive the Sn ceedings incidi Leonard rt «/. > ^- During t "t any othor ti term, ,\„i„„ ^ a. Th '( 1- Sunda 2. New C'ooi] Fl•i(la^ «t. Paul's ' ChristmaH I 8. [The J '^- Any ih clamation of| ffi^'in^: [hui ^vliidi befor o» a day so juridical day] c. 64, 8. 82 ; ^ GENERAL PROVISIONS, ARTS. 1-2. II 48 Vic, c. 20. (Que.) : 4. Article 1 of the Code of Civil Procedure, as amended by the actn 37 Victoria, chapter, 8, section ,'8 incidental to the hoarinn and trial of chhos on any juridical day. l.eonard rt al. v. liol/e et «/., 7 L. N. 301 ; S. C., 1884. 2. During' the lon^ vacation, a .Judge has the same power that ho has at any other time of the year with respect to mattern to be done out of term. XdIuu v. DantDim, 4 Q. L. K., SH'), S. C. R., 1878. JJ. Tb 'ollowing days are non-juridical : 1. Sundays ; 2. New Year's Day, the Epiphany, the Annunciation, Good Fri(hiy, the Ascension. Corpinf-Chnsti, St. Peter and St. Paul's Day, All Saints' Day, [the Conception and ChristmaH Day ; 3. The ]^irthday of the sovereign ;' 4. Any day appointed hy royal proclamation or by pro- clamation of the governor as a day of general fast or thanks- giving : [hut any writ of summons, or other proceeding, which before such proclamation, has been made returnable on a day so fixed, may be returned on the next following juridical day.j 12 V., c 10, s. 5 ; c. 22, s. 26 ; C. S. L. C, c 64, 8. 32 ; C. S. C, c 5, s. 6, § 12 : C. P. L. 207. ifiij i4 m 1 is , i: .1; ii';' ,: ■ .!:; !.;■■: i 5 i;i m Ml ,. 'Aim mvm 16 OfiNEIlAL PROVISIONS, ARTS. 2-6. 42-48 Vip., c. 19, (Que.) : The word "Governor" in article 2 of the Code of Civil Procedure means indifTorontly the Oovernor-Genural of Canada or the Lieutenant- Governor of this province aa the case may be. The flrst of July shall be connidercd a non-juridical day. EaHter Monday and Aah-Wednesday were added by 81 Vip., o. 7, •. 2, § 26 (Que.) 1. Where a party has fixed a day for a proceedinf; which afterwards turns out to be a nnn-juridiciil day he cannot avail himself of art 2 of the Code of Trocedure. IhWre v. Whyt,; 4 R. L. 6Sfl, 8. C. 1872. 2. A summons to appearon a non-juridical day is null. Art. 2 applies only where, after the issuing of the writ, a proclamation appoints the day fixed for the return as a day of general fast. Champagne v. lioinjoli, 10 R. L., 208, C. C, 1880. 8. If the day on which anything ought to be done in pursuance of the law is a non-juridical day, such thing may be done with like effect on the ue.\t fqllowing juridical day. C. S. L. C, c. 82, 8. 5. 42-43 Vic, c. 19, (Que.) : Art. 8 applies to sales announced to be made by authority of justice. 4. Persons present at sittings of the courts must remain uncovered, and in silence. C. P. C, 88. 5. All orders given by the court or a sitting judge for the maintenance of good order during the sittings must be in- stantly obeyed. The word "judge " used alone, either in this code or in the Civil Code, means in like manner, the chief-justice, or any assistant judge of the same court, unless the contrary is expressed. Ibid. 1. A judge of the Superior Court of Lower Canada may act as such in any of the courts of Lower Canada. Tulhot v. Limeau, 7 L. C. J. 67, 8. C. 1862. 6. The provisions of the two last preceding articles must likewise be observed wherever judges are in the exercise of their functions. Ibid. 7. An. a judge, d probation the judge, of the coq sonment, i or judge.- 1 Tidd'fi C. P. L. U 118, 161, 1 Merlin, Bej tempt, V. C «. If the iny functior punishment from such fi 1. An attorn i-'xp.. 2 Rev. de •• The CO «or(hng to cii nounce ordc declare them !• As a genera servatory moaau, l>ower iH indefinil who exercises it See Cantwell v. Art. 697 |)08t. 2. PIeave rise to an a, unless they were i finll, Esqual v. the 2 \t'f- OKNERAL PROVISIONS, ARTS. 7-9. 17 T. Any person who, during the sitting of the court or of a judge, disturbs order, uttern signs of approbation or disap- probation, or refuses to withdraw or to obey the orders of the judge, or the admonitions of the criers or other officers of the coijrt, may be condemned at once to a fine or impri- sonment, or both, according to the discretion of the court or judge. — Und. 89. 1 Tidd's Practice, 479, 480 ; 41 Geo. III. c. 7, s. 16 ; C. P. L. 180, 181, 182 ;— Morin, Discip. des Cours, Nos. 118, 151, 281, 604.— Guyot, Eep. V. Audience 788.4 ;— Merlin, Rep. V. Audience, § 8 ; — Tomlins, L. Diet. V. Con- tempt, V. Courts. H, If the disturbance is caused by a person discharging any function before the court, he may, in addition to the punishment imposed in the preceding article, be suspende > from such function. — C. P. C. 80. 1. An attorney in such a case may be immediately BUBpencIec1.--Binet, Exp., 2 Rov. de L6g., 438, K. B. 1818. ( ! 1 'I! 9* The courts, in all cases brought before them, may ac- cording to circuinstances, even of their own accord, pro- nounce orders or reprimands, and suppress writings, or declare them libellous. — C. P. C. 1086. 1. Ab a (general rule tho judfje has the power to order every kind of con- servatory moaBures which tlie interests of the parties require, This power is indefinite and cuntined to tho discretion and wise v of the judge who exercises it. — Drummond v. Holland, 23 L. C. J., , »; vS. C. 1879. See Cantwell v. Madden, 23 L. C. J., 77, U R. L. 633, 8. C. 1879, under Art. 597 ix>st. 2. Pleadings which contain defamatory statements concerning a party to the suit are privileged only where they have been fyU^d in good faith and the injurious statements are pertinent to tht; issues. — Hodgton et al. v. lianque D'llochelaga et al., 7 L. N. 353, M. L. R., 1 S. C. 15 ; 8. C. 1884. 3. Libellous pleadings which are connected with the issues raised do not give rise to an action for damages, unless their truth is not proved, or unless they were not absolutely necessary for the purposes of the case. — Hall, Esqual v. the Mayor tic, of Montreal ; 27 L. C. J., 129 ; Q. B. 1883. 2 F.C.C.P. 18 \t;\ I! ^'' II '§1 m GENERAL PROVISIONS, ARTS. 9-14. 4. A Buit instituted luider the leBBors' and lesseea' act may be united with a cause proceeding between the parties under the ordinary jurisdiction of the Superior Court, in which the same question is involved. — Chretien v. Crotvley, 5 L. N. 208 ; Q. B. 1882. ii-'i : I'T 10. The court or presiding judge may appoint an inter- preter, and allow him a reasonable compensation, which forms part of the costs of the suit. C. S. L. C. c. 83 s. 86. 11. Any court or any judg*^^ thereof, may require an oath when it is deemed necessary, and may, in such case, as well as in any case when an oath is required by law, or the rules of practice, administer the same. . ■ 12. Whoever seeks to obtain a thing or right which is denied him, must sue for it before the proper court. C. P. Geneve 1 ; Pothier, ^. C, 2, C. P. L. 75. 15$. No person can bring a suit at law unless he has an interest therein. 2 Prevot la Jannes, 3C7, 1 Pig. pp. 41, 61, 62, C. P. L. 16. 14. No person can be a party to a suit, either as claimant or defendant, in any form whatever, unless he has the free exercise of his rights, saving where special provisions apply. Those who have not the free exercise of their rights must be represented, assisted or authorized in the manner pre- scribed by the laws which regulate their particular status or capacity. All foreign corporations or persons, duly aurliorized under any foreign law to appear in judicial proceedings, may do so before any court in Lowev Canada. Any peraoii who, according to the laws of a foreign coun- try, is authorized to represent a person who has died or made his will therein, leaving property in Lower Canada, may also appear as such in judicial proceedings before any court in Lower Canada. 1 Pig. 63 C. 91, 88. 1, 1. A woma may, witliout such husband, ception to the 1 days.— ,S';«/7/, . . ;^j--<;'i -liy .Tl 1. The conclosions of two distinct actions cannot bo joined in one and the same declaration. (iaijmm v. TremhUnj, 3 Rev. de Leg. 38, K. B. 1811. 2. Several counts in a declaration for one hundred pounds each founded on pi-omises which are within the scope of one and the same action, with oonclusious for £100 only, are allowable, Casey v. Brown, .) Rev. de Log, 39, K. B. 1817. 3. Judgment rn rcint^ijrauile and for damages may be asked and awarded in one and the same action. CMt' v. Rhine, 1. Rev. do L6g. 505, K. B. 1818. 1. Two actions may be united and prosecuted under the same pro- cedure by order of the Court on the demand of one of the parties when there is a connection between the two. Wbert v. Qmsnel, 10 L. O. J., 83, S. rj., 181)1) ; FoU'ii et al. v. Tarratt et al. 9 L. C. J. 108, and 15 L. C. R. 245, Q. B. 1865, Contra : Siiiuird v. i'eirauU, and rertuult v. ■SV/Hrt/vi, 1 L. C. J. 249, S. C. 1857. -../is, i , ., -, . ■mm mm "'■ IM'^ 1 :.:.^ ■'\.\- ^ : All 30 OENERAL PROVISIONS, ARTS. 15-17. 6. An action en dAlarati^n de patemiU may be joined to a demand of damages due the mother, and of a pension for the child, and the mothei- may bring the action in her own name without having been nam'jd tutrix. Kingsborough v. Pownd, 4 Q. L. R. 14, Q. B. 6. Where the plaintiff brought action for slander and for personal injury in the shape of violence, etc., and the defendant pleaded cumu- lation, the plea was dismissed. Paquette v. Globenski, 6 L. C. B., 185 Q. B. 1856. 7. A possessory and a petitory action cannot be joined, even with the consent of the defendant. Trepannier v. Dupuis, P. B. 24, and 1 Bev. de L6g. 351. 8. If the plaintiff state in the declaration that he is proprietor and possessor of a certain lot of land, but concludes en complainte only, that is not a cumulation of the petitory and the possessory. Bouchette v. TacH 1 Bev. de L6g. 351. 9. The holder of two promissory notes by the same maker may sue for each separately by two actions. Lalibert^ v Chinard, 6 Q. L. B. 12, S. C. 1879. Vide Art. 120 post. S'^ ¥■:. 16. No judicial demand can be adjudicated upon unless the party against whom it is made has been beard or duly summoned. 1 Pig. 489 ; C. P. Geneve, 3 ; 1 Seligman, 24. 17. The court cannot adjudicate beyond the conclusions of a suit, but it may reduce them and gran«i them only in part. Ord. 1667, tit. 35, art. 34 ; C. P. L., 165. 1. Interest and costs must be asked in the conclusions of the ' uxa- tion, otherwise the court cannot give judgment for them or either of them. Sihon v. Anderson, 3 Bev. de L6g. 39, K, B. 1811 ; Coupal v. Bonneau, 10 L. C. J. 177, Q. B. 1865. 2. The conclusions of a new declaration filed in an action evoked must be such as the action instituted in the inferior tribunal will war- rant. Patris v. Belanger, 3 Bev. de L6g. 40, K. B. 1809. 3. And if a declaration does not conclude for judgment jointly and severally against two or more defendants it cannot be so awarded. Train v. Godin et al, 8 Bev. de L6g. 39, K. B. 1812. 4. What is omitt3d in the conclusions of a declaration cannot be sup- plied by the court. Perrault v. Vallitres, 3 Bev. de LAg. 40, K. B. 1820. GENERAL PROVISIONS, ART. 17. 5. In an action en exhibition de litres, concluaions upon the titles must be filed and an issue raised thereon. Bex v. Saul, 3 Bev. de L^g. 198, K. B. 1811. 6. Where, in an action for the recovery of a special legacy, the declar- ation, uiter praying for the personal condemnation of the defendant, asked that a certain piece of land therein described " be declared mortgaged, hypothecated and affected for the payment of the said debt with interest and costs " without asking that it be sold — Held, to be technically defective, and rejected accordingly. Piatt et al. v. Piatt et al,, 1 L. C. J. 183, S. C. 1857. 7. The writ and declaration in an action in the Circuit Court consti- tute the exploit de citation, and conclusions in the writ to the effect that the " plaintiff prays judgment accordingly " supply the omission of such conclusions in the declaration annexed to the writ. Childerhome v. Bryson et al., 15 L. C. J. 246, S. C. R. 1871. 8. When the plaintiff had brought an action en homage instead of a petitory action, and the action had been maintained — Held, in appeal, that the judgment would not be disturbed, as the question had not been raised by the pleading, and as the judgment had settled correctly the rights of the parties. A '.kinson et al. v. Hall et ux. 19 L. C. J. 192, Q. B. 1874. 9. In an action for certain annual payments of a legacy under a will — Held, to be a fatal variance to allege an absolute legacy, as had been done in the declaration, when the legacy was really conditional, as proved by the will. Freleigh v. Seymour, 2 L.C. J. 91, S. 0. 1857. 10. In cases of simple contract where thei'e is no written agreement, IV variance between the pleading and the proof is not fatal ; it is sufficient that the substance of the matter in issue be proved. Guerin v. Mathe, 15 L. C. J. 253, S. C. R. 1871. 11. A judgment on an action en rJint/grande, which does not describe the proi)erty affected by the judgment, will be reversed in appeal on ac- count of vagueness, lienaud v. Gugy, 8. L. C. J. 470, Q. B. 1858. 12. It is not in the power of the parties to change the nature of the action from that in which it was originally instituted. Richard v. Denisont 4 L. C. J. 42. 13. In an action to revendicate a piano purchased at a judicial sale — Held, that the Court had iM)wer to declare the sale null without any con- clusion to that effect in plaintiff's declaration or special answers. Nard- heimer et al. v. Duplessig et vir., 2 L. C. L. J. 106, Q. B. 1866. 14. A fraudulent deed will not be annulled by tlie Court on the con- testation of an opposition, unless asked for by the conclusions. Blouin v. Langelier d' Langelier, 3 Q. L. R. 272, 8. C. R. 1875. But se Hingston v. Larue tO Larue, 7 Q. L. R. 301 ; S. C. R. 1881. mm i 1 -i: . "3 Mt';'ir ^ •■! : .n '.'f. ' ■ ■: ' ■'.■■■ t ' > '1 ■fir' m :VSf 22 GENERAL PROVISIONS, ARTS. 17-19. 15. In an action against two persons on a contract alleged to be joint and not several, if it appeat, on the contrary, that it is several and not joint, and the declaration contain no other counts, no judgment can be given against either of the defendants. Roi/ v. Blaydon d- Boucher, 2 Rev. de L6g. 123, K. B. 1817 ; RitcJiie v. Thomas et al., 3 Rev. do L6g. 390, K. B. 1818 ; Fletcher v. Forh- H ah, 22 L. C. J. 24 ; S. C. 1869. 18. Where two person ■« a'-e sued as partners and the cause of action is established against one only c\A individually, he will be condemned, and the suit dismissed as to "ne other. Fuller v. Eeesor ct al., 23 L. C. J. 129, 9 R. L. 637, S. C. R. 1878. 17. The imprisonment of defendant may be asked for by motion after judgment awarding damages for personal wrongs, though it was .not ask- ed for by the action. Barthe v. Dagg, 25 L. C. J. 161, 3 L. N. 316, S. C. 1880. 18. A party who brings a suit for less than he is entitled 10, upon the same cause of action, may remedy the omission by an incidental supplementary demand in the same suit before judgment rendered. C. t. L. 156, 157 ; 1 Pig. 337 ; art. 149 post. 19. No person can use the name of another to plead, except the Crown through its recognized officers. Tutors, curators and others representing persons who have not the free exercise of their rights, plead in their own name in their respective quahties. Corporations plead iii their cor- porate name. .. -i ,.,..• . 2 Loisel, Inst., liv. 4, tit. iii. art. 5 ; liv. 8, tit. ii. art. 4. 1. The transferee has a right of suing in the name of his assignor for the recovery of the claim transferred. Crcmazie v. Cauchon, 16 L. C. R. 482. 2. The Attorney-General in appearing for her Majesty, cannot appear by attorney. Cartier v. Lttviolettc ct al., (J L. C. J. 309, S. C. 1862. 3. Churcli fabriques have a collective name as a corporation, which they are bound to use in judicial matters. Lifort exp., 6 L. C. J. 200, S. C. 1862. 4. An agent or attorney cannot bring an action in his own name on behalf of his principal, even when tliere is an agreement to that effect between the principal and the other contracting party. Ahopp v. Hart, 2 Rev. de L6g. 29, K. B. 1817 ; NeMtt et al. v. Turgeon et al., 2 Rev. de L6g. 43, Q. B. 1845. - - . . ...,-..;..,..,,,,,„., 5. The tion to be the right 1 existed, be 3 S. C. R. 6- As tc cle Construct 154 Q. B. 1; 7. In an names of th declaration. 8- An ass of his creditc estate and pr Q- B. R. 59, ( S. C. 1884; A 30. In t facts and cc «t»y pai-ticu fire interpr, ordinary Jar C. S. L. C See art. 1 1' 111 an actil C^anada, tJie all| was held to bo ^ occurred. iVoJ ^- 111 an acti(- fendant demurr) 'engtli the pvell obtain the pate] IMivea^t, a L. cf 3- A motion t\ lii'rlow V. liicha] See Geor,/e v.| 116 post. 31. Ail prJ interpreted wi GENERAL PROVISIONS, ARTS. 19-21. '^.■ 5. The fact of the plaintiffs having alleged themselves in the declara- tion to be the "duly named trustees of S.'s creditors" did not give them the right to bring the action for S.'s creditors: — the right of action, if any existed, being vested in the creditors individually. Browne v. Pimonneault, 3 S. C. R. 102, 1879. 6. As to right of pr^te-iiom to sue in hiis nam^: soe iiohillard v. La SociJtJ de Coiutruction, etc., 2 L. N. 181, S. C. 1879. Vallu^res v. Drapeau, 6 L. N. 154 Q. B. 1883. 7. In an action by a tutor, it is not necessary that the names and first names of the wards for whom he is acting should appear in the writ and declaration. Charhonneau Esqual v. Charbonitean, 7 L. N. 9(5, S. C. 1884. 8. An assignee under a voluntary assignment by a debtor for the benefit of his creditors can, as such assignee, sue and be sued in reference to the estate and property assigned to him. Motf'tit v. Bnrhiiid, 7 L. N. 18J ; 4 Q. B. R. 59, Q. B. 1884. Contra : Tourangeau v. Dubean, 10 Q. L. R. 92, S. C. 1884 ; Moffatt v. Burland, 8 L. N. 147, Sup. Ct. 1885. 20. In any judicial proceeding it is sufficient that the facts and conchisiouB be distinctly and fairly stated, without any particular form being necessary, and such statements are interpreted according to the meaning of words in ordinary language. C. S. L. C. c. 83, 8s. 77, 78 ; C. P. L. IGl. See art. 144 post. 1. In an action for the infringement of a right of patent for Lower Canada, the allegation of an infringement "in the County of Montreal" was held to be a sufficient indication of the place where tho infringement occurred. Prowse v. Paijnuelo, 2 L. C. R. 311, S. C. 1852, 2. In an action for the infringement of a patent right to which the de- fendant demurred on the ground that the declaration failed to set out at length the preliminary formalities required to be observed in order to obtain the patent — Held, to be mmecessary and the .'emurrer was dis- missed. Uernier v. lieuucln'iniii, 2 L. C. J. 193, S. C, and Bernier v. Beliveati, ■' of Ste. Marthe] GENERAL PROVISIONS, ART. 22. 25 4. An inspector of roads and ditches is a public officer, and is entitled to a month's notice of action, when sued in damages, for acts within the scope of his duty. JetUv. Choqttette, 7 L. C. R. 63, Q. B. 1857. 6. In an action for trespass for making and opening a road, where the defendant pleaded that he did so by order of the road surveyor — Held, that he was not entitled to a month's notice of action. Esinhart v. Mc- Quillan, 6 L. C. R. 456, Q. B. 1855. 6. In an action against a sheriff for goods seized by him — Held, that he could not plead want of notice of action under 14 & 15 Vic. cap. 54. Irwin V. Bogton et al., 2 L. C. J. 171, & 7 L. C. R. 433, Q. B. 1857. 7. Where an action of damages for false imprisonment was brought — Held, on the defendant's plea that he acted in good faith and was author- ized by statute, that he was entitled to a month's notice of action. Mc- Namee v. Himea, 3 L. C. J. 109, S. C. 1859. 8. In an action in which a municipal corporation called in its council- lors as guarantors, but neglected to give a month's notice — Held, that a public officer was entitled to a month's notice of action, although at the time of the institution of the action.he had ceased to be such public of|^cer, even if he is accused of fraud or bad faitli. Lcclerc v. La Corporation de la Paroisse de St, Joachim de la Pointe Claire iC- I'alois et al., 7 L. C. J. 83, S. C. 1862 ; The Corporation of Bienville v. }iadeau et al., 5 Q. L. R. 362, C. C. 1879. 9. Where money had been paid to a collector of customs as duty upon goods to be imported, upon condition that a certain portion of the money so paid should be remitted in the event of the goods arriving before a rise of duty took place, by virtue of an Act of the legislature then about to come into force — Held, that such a payment was not in the nature of a deposit in the hands of a private individual, but was paid to him in his capacity of collector in the performance of his duty as such, and therefore the collector was entitled to a month's notice of action. Stephens et al. v. Bouthillier, 9 L. C. J. 309, Q. B. 1864. 10. In an action against the collector of customs to recover back costs which had been paid to him — Held, that he was entitled to a month's notice of action. Grant et al. v. Percival, 2 Rev, de Log. 670, K. B. 1816. 11. But in another action of the same kind — Held, that he was not en- titled to a month's notice. Price v. Percival, 8. R. 179, K. B. 1824. 12. In an action against a municipality for damages caused by the bad state of the roads, a month's notice must be given. Craig v. The Corpora- tion ofLeedg, 3 R. L. 444, 8. C. R. 1871. 13. In an action against school commissioners, a month's notice must also be given. Basin v. The School Commissioner* of St. Anselme, 3 R. L. 454, 8. C. R. 1871. SJcus, if they acted in bad faith. School Commission- ers of Ste. Marthe v. Ste. Pierre et al., 2 L. N. 343, 8. C. 1879. Jvfilf ml I- T' I • ■'. ° . r; •.:. I mm J' I --V, ■- ■ 'I ■-■ ■ 1 I {AM m ' ■< . i m ■ ;-?;■ m^ iiiiifli'M 26 GENERAL PROVISIONS, ART. 22. 14. A municipal corporation is not an ofScer or a person poBBossing public functions in the sense of art. 22. lUain v. The Corporation of Oranhy, 5 R. L. 180, A 18 L. C. J. 182, 8. C. R. 1873 ; Duprati v. The Cor- poration of HocheUifia, 12 R. L. 35, 8. C. 1881. •: 16. And in an action en vi'intjprande, where damages are also prayed for, the notice of one month is not necessary. Dion v. The Corp<}ration of the Pariah of St. Joseph, 17 L. C. J. 193, Q. B. 1873. 16. A public officer is not entitled to the notice when sued for damages on account of bad faith. Ferland et vir. v. Latmir, G R. L. 77, S. C. 1874 ; Pacaud v. Qiiesnel, 10 L. C. J. 207, Q. B. 186(3. 17. And where such notice has not been given, it is for the Court or jury to decide if the officer has acted in good faith, and consequently if he has a right to such notice. Ibid. 18. A Catholic priest who, in the exercise of his public functions, cele- brates a marriage, is entitled to a month's notice of action when being sued in damages for having married a minor without the consent of her parents. Robert et al. v. liean, 1 R. L. loO. and 13 L. C. J. 226, Q. B. 1869. 19. A day labourer working for a municipality is not a public officer, nor entitled to notice. Ilolton v. Aikens, 3 Q. L. R. 289, Q. B. 1875. 20. A bailiff is not entitled to notice of action. Major v. Chartrand, 21 L. C. J. 303, 1 Legal News, 212, C. C. ; and Major v. Boucher, 21 L. C. J. 304, 1 Legal News, 212, C. C. 21. Where the defendant, a constable, received a notice of action under 14 & 15 Vic. " 54, sec. 2, cfe C. 8. L. C. cap. 101, for malicious arrest and imprisonm. ':ich omitted to mention the place where the party was arrested and ....^u ,oned—Held, confirming the judgment of the Court below, that such notice was insufiiciont, and the action was dismissed. Bettermvorth v. Howih, 10 L. G. J. 184, & Ki L. C. R. 41!», Q. B. 186G. 22. A magistrate who, without jurisdiction but in good faith, issues a warrant against the plaintiff, is entitled to notice of the action brought for damages. Kimiston v. Corbeil, 7 L. N. 325, S. C. R. 1879. 23. Want of notice should be pleaded by preliminary exception, and therefore, if an action be dismissed for want of ';uch notice, on a plea to the merits, costs will be allowed as on a preliminary plea only. I.eganlt v. Lee, 26 L. C. J. 28, S. C. 1881. 24. A registrar sued because of omissions made in cortiiicates granted by him is entitled to notice. Grenier v. liouleau, 8 Q. L. R. 323, 8. C. R. 1882. 25. A constable in a church, named under the provisions of C. 8. L. C, cap. 22, sec. 7, is entitled to notice. Wilhelmy v. Brisebois, 12 R. L. 424, 6 L. N. 276, 27 L. C. J. 175, C. C. 1883. 20. The n. committed, n V. lieandry, ; 1881 ; 6 L. N, a». Ar in person j 26 Geo. J a4. Ne: counted in \ I^elays co if a delay ex next foJIowir The same C. S. L. C, 1 Pig. 393 ; ( '^'^^' art. G ; L 1083 ; C. P. j 1- The delay r 'lay. and a notict :iext juridical da 1869; PrextoH v. I'axton, 23 L. C. 2. A non-jurid Crehamt v. /.VA/,) C.C. 1881. See »«. Wlienc initted from o transmission tl^e 2)arty reqi the person chi <'eJay caused b '^ge, he is deei the parties, i\ 'neans. C. S. OBNbRAL PROVISIONS, ARTS. 23-25. 27 20. The notice of action must state where the Act complained of waa committod, and also the place of residence of plaintiff's attorneys. Grant V. lieaititni, 2 L. N. 354, S. C. 1879; 4 L. N. 393, 2 Q. B. R. 197, Q. B. 1881 ; 6 L, N. 25, 41, 89, 113, 8. C. 1888. , , , 2S« Any party to a suit may appear and plead either in person jr through the ministry of an attorney-at-law. 25 Geo. III. c. 2, ss. 1-86. 24> Neither the day of service nor the terminal day is counted in the delays fixed for summoning. Delays continue to run upon Sundays and holidays ; but if a delay expires on a holiday i. is of right extended to the next following day. The same applies to all other delays in procedure. C. S. L. C. c. 110, 8. 1 § 2 ; 1 Carrt^ et Ch. lij., No. 109 ; 1 Pig. 393 ; Guyot Eep. Vo. Dt'lai, p. 344 ; Ord. 1667, tit. iii. art. 6; Lavielle, Etudes sur la Proc. p. 95; C. P. C. 1083; C. P. L. 318. ' 1. The delay required on tlie servico of motions is at least one clear (lay, and a notice ^iven on Saturday of a motion to be presented on the next juridical day is insufhcient. lioucber v. liertrand, 5 U. L. 292, C. C. 18fi9 ; Prexton v. Paxton, 23 L. C. J. 210, S. C. 1877 ; Contra, Preston v. hijcton, 23 L. C. J. 210, Q. B. 1877. 2. A non-juridical day maybe computed in the delay on a petition. CrebuHm v. Etiiicr, 2 R. L. 332, S. C. 1870; Cyr y.UEpicier, 11 R.L.342, C. C. 1881. See arts. 4(53 it 890 jjonf. 2JS. Whenever a record is required by law to be trans- mitted from one court to another, or to a different place, the transmission may be effected through the post Dffice, and the party requiring it is bound to advance the postage to the person charged to make such transmission ; and for any delay caused by the neglect of such party to pay such post- age, he is deemod to be in fault. With the consent of all the parties, the record may be transmitted by any other means. C. S. L. C, c. 82, s. 6. 4-1 '! ' Vj] f •tl? I I ! ;ti 1 r,1:.t I rv.i'' t ) ■:!■ .. . !]!.■. M ;'■ :!;f!!'"1- il ^\^A '1 ii ; I'.' .. fH ..■ f '''i ■( 11 . \v ■I ■ > ' 1 . ! i ■ ''tlu GENERAL PROVISIONS, ARTS. 26-27. 86. [The provisions of article 17 of the Civil Code apply to this code. Any copy of this code whether designated as Code of Civil Procedure of Lower Canada, or as 21ie Code of Civil Procedure of Lower Canada, or any copy of the Civil Code whether designated as Civil Code of Lower Canada, or as The Civil Code of Lower Canada, or any extract of either of the said codes, printed hy the printer duly authorized by Her Majesty, is deemed authentic] Any abbreviated form of reference to any Act or part of an Act is sufficient if it is intelligible. 27. Exceptional provisions concerning certain matters and proceedings in the districts of Saguenay, Chicoutimi, Gaspt^ and the Magdalen Islands are contained in chapters 77, 78, 79,80 and 83 of the Consolidated Statutes for Lower Canada. C. S. L. C, c. 77, s. 50 ; c. 78, s. 17, M ; c. 79 ; c. 83, 83. 16, 79, 188 ;— c. 85, s. 28. PROO] as. The i suits or actio diction of tbei Cm C. 78, 88. 1- The Super by the GoverniTK British North A Quebec, and may cise of his office. 2. The Superi very of school fcaj «^M 20 L. C. J. 20 3. The jurisdi and not by the |lue to him and pi jurisdiction to try the demand shew 302, 8. C. R. 1884 ^- TheSuperif of a sum exceedin( expense of the pro Ross V. The Ciyrpon SECOND PART. PROCEDURE BEFORE THE DIFFERENT COURTS. BOOK FIRST. SUPERIOR COURT. PRELIMINARY PROVISIONS. ftH, The Superior Court has original jurisdiction in all suits or actions which are not exclusively within the juris- diction of the Circuit Court, or of the Admiralty. C. L. S. C, c. 78, ss. 2, 3. 1. The Superior Court has jurisdiction over an arbitrator appointed by the Government of the Dominion of Canada, under section 142 of the British North America Act, while acting as such within the Province of Quebec, ai.d may inquire whether such arbitrator is in the regular exer- cise of his office. The Attorney-General v. Gray, 15 L. C. J. 306, 8. C. 1871. 2. The Superior Court has no jurisdiction to hear suits for the reco- very of school taxes. The Scfiool Commmioners of Uochelaya v. Hogan et al., 20 L. C. J. 298. 3. The jurisdiction of the court is determined by the sum demanded and not by the amount due. Whore plaintiff alleges that 9210 are duo to him and prays judgment for that amount, the Superior Court has jurisdiction to try the case, although the documents fyled in support of the demand shew that only 996 are due. Tourigny v. Fortin, 10 Q. L. R. 302, S. C. R. 1884 ; Joyce v. Hart, under art. 1178;>o»t. 4. The Superior Court has jurisdiction to hear a case for the recovery of a sum exceeding 9200 for work done by a corporation on roads at the expense of the proprietor, notwithstanding M. C. 398, 401, 951, and 1042. Robs v. The Corporation of Horton, 11 R. L. 520, Q. B. 1882. '.'•ft L-w_ W^' \ . ■ '.■'At s ill' I'RELIMINAnY I'llOVIHIONS, ART. 2Q. a». The JudKeB of the Superior Court, or any ten d more of them, may, from time to titno, make any nUos of practice that may he nocoHsary for ro<,Mihitiiif,' prococdiuf^'H, in or out of term, in cauHts and mattcrri hrou«:;ht hoforc them, whothor in the Superior or in the Circuit Court, and all other mutters of procedure not rej,'uluted hy this code ; provided such rules he not inconsiHtent with the provisiouH of this code. C. S. L. C. c. H3. bs. 88, lOH, § 13, h. 1 18. All rulcH of i)riicti('e thus nnuU' hy Huoh judf^es and Hijrn- ed hy them, are, without any other formality and immedi- ately upon receipt thereof, or of a copy thereof certified hy the prothonotary of the Sui)erior Court having custody of the original thereof, entered in th(» registers of each of the said courts respectively, at each place where it is held, and have then full force ami I'tfect in the district or circuit where it has heen so registered. Ihid, c. 83, s. 118, ;^ 2. The Judges of the Superior Court, or any ten or more of them, may also make any taritl" of fees for the counsel, advocates and attorneys, examiners and other otlicers ap- pointed hy the Superior Court, whose salaries are not, hy law, lixed hy the (lOvernor-in-Council ; and all such tariffs must he promulgated in the manner prescribed by the rules of practice. The Governor-in-Council may make, modify, revoke or amend the tariffs of fees payable to prothonotaries, clerks, sheriffs, coroners, and criers in accordance with the provi- sions of chapter t)3 of the Consolidated Statutes for Lower Canada. And any officer or other person receiving any other or greater fees or emoluments than are specilied in the tariff for the Circuit Court, for the discharge of the duties and services therein mentioned, is liable to n pen- alty of eighty dollars for each offence, as mentioned in clia])- ter 83 of the Consolidated Statutes for Lower Canada. 1. The rules of practice of a Court are within its control, and it may relax them when a rigid enforcement of them would operate an absolute injustice.— /^aw v. Scott, 9 L. (.'. K. 270, Q. B. 18r>'J. k 1 A •to. Every ''onnnissionor "I'Mitioned, hat win-never it is order of a cour ^vhich adnnt of provision of luv Any Jiidgo of ^vhieh jjt) disclni <'oninn"HsionH un HH may he ru'c^cs ••t'eeive.iilliduvit.- "»• the Circuited '^'1h' Chief. just .i'l'lKe of the s/im Chief-jiiHtice, or i i'xlKes of the Hai( ""•h'r the seal of they think necess t'omnuHsionerH tol *'<>m-t of n.'cord in The Governor 'it persons residin •>r in any of the <-*eiving such afli( J"^very doj,„,siti, force and effect, a it had been receiv 8ub-a. 2. The i)rovision8 and effect to all , authorized by the in chancery in Ki iiiH hand and offi magistrate of anyP (ireat liritain or I'URI/IMINAUY I'ROVIHIONH, AIIT. 5U). Bl }IO* Kvpiy jud^c, protlionotary and clerk, and every comnuHHioner autliori/cd for tliat inirpoHe as h(!roinutter iiKMitionrd, Iuih ii right to adiuiiiiHter and reccivo the oath, whenever it is re(|uirod hy hiw, by rules of practice, or l)y order of a court ov judf^e, or tlie aflirniation in the caHes which admit of it, unless such rif^ht he restricted hy some provision of law. Any Judj^e of the Superior Court may, in the district in which he dischar«j;oH his fiuictions, empower, hy one or more commissions under the seal of the court, as many persons as may Ix* necessary in any district, as commissioners to receive allidavits therein, to be used in the Su[)erior Court or the Circuit Court.— C. S. L. 0. c. 82, s. 10. The Chief-justice of the Superior Court and any other jud{j;e of the snme ct)urt,aud, in the case of the death of the C!hief-justice, or of his al)sence from the province, any two judi^i'S of the said court may, by one or more commissions uncU-r the seal of the court, api)oint as many persons as they think necessary within the limits of Cpi)er Canada, as connnissioners to receive allidavits therein to be used in any court of record in Lower Canada. — C. S. C. c. 71), 8. 2. The (lovernor nniy likewise, fronj time to time, api)oint tit persons residing in any part of Great Britain and Ireland, or in any of the Knf^lish colonies, as commissioners for re- ceiving' such altidavits. — C. S. L. C. • H2. s. 12. Kvery deposition or atlidavit thus received tuis the same force and effect, and is entitled to the same credence as it' it had been received in open court. — C. S. L. C. c. 82, s. 10, 8Ub-H. 2. The provisions of 2(>th Vic. chapter 41, give like force and effect to all allidavits received before a commissioner authorized by the Lord Chancellor to administer attidavits in diancery in En}j;land ; or before a notary public under his hand and official seal ; or before the mayor or chief magistrate of any city, borough, or incorporated town in (ireat Britain or Ireland, in any of Her Majesty's colonies 4 i ' I H ' m 1 ■.; ■ ■' i 1 - t . I . / ■ 'i III. I Ml '•I Vi, 11. Mi \ i i t 17 Is 32 PRELIMINARY PROVISIONS, ARTS. 30-31. or in any foreign country, under the common seal of such city, borough, or incorporated town ; or before any judge of a superior court in any of Her Majesty's colonies or de- pendencies ; or before any consul, vice consul, temporary consul, pro-consul, or consular agent of Her Majesty ex- ercising his functions in a foreign country. The words "Commissioner of the Superior Court," when- ever they are used in this code, mean a commissioner ap- pointed under any of the provisions of this article. 1. An affidavit to an opposition 8wc»"n before a commissioner for the district of Quebec, the jurat of which does not show where the affidavit was sworn, is insufficient. Robertson et al, v, Fontaine dt Fontaine, 20 L. C. J. 195. S. C. 1876. 2. The joint prothonotary has a right to receive an affidavit intended to make proof in another district, in the same way as if such affidavit had been received before a judge of the Superior Court. Traham v. Oay- iwn d- Gagnon, 17 L. C. J. 333, S. C. 1873. 8. An affidavit to an opposition in the Circuit Court may be sworn before a Commissioner cf the Superior Court, and the prefix '^Comniissaire C. S." is sufficient, even when the affidavit is made out of the district in which the opposition is filed. Wood v. Ste. Marie <& Ste. Marie, 21 L. C. J. 306 ; 1 Legal News, 212 C. C. 1877. 4. The initials "C. C. S." do not suffice : the Commissioner should state the name of the district for which he has been appointed. Leclerc V. Blanchard, 12 L. C. J. 236 ; DuhatU v. Lacombe, 16 L. C. J. 111. Con- tra : Vezina v. Gibeau, 8 L. N. 2, C. C. )884. 31- If a party establishes under oath that he does not possess sufficient means to make the necessary disburse- ments, the Court or a Judge, on being satisfied by affidavit that such party has a good cause of action or a good de- fence, may grant him leave to plead in forma pauperis, and may order all officers of justice to afford him their services without any remun*^ ration ; but such party, if he fails in the suit, is not exempt from condemnation to pay costs to the other party. C. S. L. C. c. 82, s. 24 ; 1 Tidd's Prac. p. 97, Edit, of 1837, p. 63-4, Laya, 393. 36 Vic. 1- But th informdpau^ (1) Where to plead info party from ] C. '^ 1872. (2) Where* petition was r ^nformdpaupe 110. Q. B. 187. (3) A plainti peris in conseqi plaintiffs reside V. Harris, 3 Bev (•*) An applic/ pauperis to be al jected. Harring (5) Where a p, —Held, that he i Jaw in aid of the «• 226, C. C. 186J (6) Leave to p ^miult V. Legault ''onneau, 3 L. N. 3 (7) Permission ; soproceedin^rf,.o„ f 'j;««' V. Locomb S- C. 1870. »a. Sucli Jej o^JU^Jge, upon J '•owe able to m\ 1- The permissid "lien the creditor hi ^""' for the amoul Lacombe et al. U L. l 2. 'I'he court may 1 ^^''cn it ap2,ears by ,1 3 PRELIMINAi.Y PROVISIONS, ARTS. 81-32. 33 86 Vic, c. 20 (Que.) : 1. But the Court or judge cannot grant leave to any party to institute in formd pauperis any suit to recover a penalty. (1) Where the plaintiff, who was in a foreign country, had been allowed to plead iM formd pauperis — Held, that this did not prevent the adverse party from >a. ending security for costs. Arpin v. Riopel, 4 R. L. 386, C. '^ 1872. (2) Where a defendant petitioned to be released from capias and the petition was rejected, — Held, that he could not appeal from such judgment in formd pauperis. The Canadian Bank of Commerce v. Brown, 19 L. C. J. lib, Q. B. 1874. (3) A plaintiff resident without the Province cannot sue tn foi7n4 pau- peris in consequence of the statute 41 Geo. III. cap. 7, which compils all plaintiffs resident without the province to give security for costs. Barry V. Harris, 3 Rev de L6g. 304, K. B. 1810. (4) An application of a plaintiff who had obtained judgment in formd pauperis to be allowed to proceed to execution in formd pauperis was re- jected. Harringtm v. McCull, 6 L. C. R. 426, S. C. 1856. (6) Where a party had obtained permission to proceed in formd pauperis, — Held, that lie nevertheless was compelled to pay the taxes imposed by law in aid of the "building and jury fund." Ohen v. Forstersen, 12 L. C. R. 226, C. C. 1862. (6) Leave to proceed tn fornui pauperis cannot be gran^'c:! in ap^/cal. Legault v. Legault, 16 L. C. R. 163, Q. B. 1866. Contra : Loyscau v. Char- honiwau, 3 L. N. 308, Q. B. 1880. See art. 32, No. 6 infru. (7) PermiBfiion to proceed in formd pauperis does not absolve the party so proceeding from ni«king the deposit for costs due to the other side. Duhaut v. Lflcombe et al. and Brunei v. Tranchenwntagne, 15 L. C. J. 43, S. C. 1870. !i3. Such leave may, however, be revoked by the court or judge, upon proof that the party was or has since be- come able to make the necessary disbursements. Ibid § 2. 1. The permission to proceed in formd pauperis should be revoked, when the creditor has conveyed the right to another to take a certain sum for the amount of the judgment and other claims. Duhaut v. Larombe et al. 15 L. C. J. 105, S. C. 1870. 2. The court may revo.ke the permission to proceed in formd pauperis when it appears by procedure or by proof that the plaintiff is worth more than fiv3 pounds sterling. Montferant v. Bertrand, 9 L. C. J. 170, C. C. 1865. 3 F.C.C.P. M Mmih^^ 84 PBELIJIINARY PROVISIONS, ARTS. 82-84. 41 3. A defendant who seeks to have the plaintifT's leave to proceed in forma pavpi ris revoked, is nut entitled to ask for the dismissal of the action. Guillaitme v. The City of Montreal, 24 L. C. J. 2b8, 3 L. N. 315, S. C. 1880. 4. A plaintiff wlio lias obtained leave to proceed in ornui pavperin does not require a new authorization to contest in forma pai'perix an opposition to the execution of the jud<^ent. lU-iixle v. Pellerin .(• Diiiian, 3 L. N. 339, S. C. liSSO. 5. The permission to plead in formd pauperis includes the privilej^e of having the defendant's depositions taken and tiled without payment of the usual fees. Laranu'e et al. v. Kvanx, 3 L. N. 373, S. C. 1880. (). Respondent had been allowed to plead /;( fornui pauperis in the Court below. On application she was allowed to proceed in formd pauperis in appeal without a new affidavit, in the absence of proof that she had become able to pay fees. Trust ct'- Loan Compani/ v. Quintal. 3 L. N. 397, Q. B 1880. 7. Officers of justice have no right of action for their fees against parties pleadinj.' in forind pauperis and who have failed in their pleiidinga, Thev can claim disbursements only. Dion v. Toussaint, 7 Q. L. R. '}i, C. C. 1881. ;J3. If a part}- proceeding in formd paiii -iWs obtains judgment in his favour, the other party may he condemned to pay costs, including those of the officers of justice wlio are then entitled to an execution to obtain payment thereof from such party by way of distribution. No more than one execution can, liowever, be issued for all the taxed costs remaining unpaid ; it is issued at tlu' instance of the prothonotary, or of any party interested, and the moneys are returned into the office of the protiio- notary, who pays the same free of charge to the parties entitled thereto. Tidd's Prnc, p. 98-9. :i4. In matters purely personal, other than those men- tioned in articles 85, 36, 38, 40 and 42, the defendant may be summoned either, 1. Before the court of his domifile. '2. Before the court of the 2)lace where the demand is servtd upon him personally, or 3. Before the court of the phuv where the right of action originated. C. S. L. C. c. 8'' s. 20. 1- The w everything Gaiilt et al. - i Q- L. B. 2 ■i I^. C. J. 2J V. Leduc et at «. 369, Q. B. 2- In an ac liolder to recc arose at Mont JutJgment was was issued, an shares. Jfelc/, ^- The cause "liere it is niac """ et a I., 21 L. ^- A sale eff( •Iffendant, resid 'I'strict and pay, not give rise to a "'•• « L. C. 1{, 4,i •''• Action on ii another, niay <-'/u.rton et ul, y. J . "• ^^'J'e'i .1 i.rn, "' •"'"rel in anot,,j tional I,mranee (■'fiamp„>/ne, 17 jj Qi^. it.a.5i,s.cl . ''• Thedefeiulai "> Montreal, tJie '•"■"t in the hanc ^''e 'locJinatory ^''«'-"i.r Assitraiu;. « The i)Jai„tit '''""'«iJes were in I "t Three Rivers A "-''^'"«t hin. and J '"■'•est to ha,.o beti ^^ arrant fr.,-,, t},. ^•"^"•^■Hl had no I '^^ C. lH(iO. !lli PRELIMINARY PROVISIONS, ART. 34. 35 1. The words "cause of action " mean the whole cause of action, /. e., everything that is requisite to show that the action is maintainahle. Gault et al. v. Wright et ah, 13 L. C. J. 60, S. C. 1868; Connolly v. Brannen, 1 Q. L. R. 204 ; liousneau v. HugheH, 8 L. C. R. 187 ; HMcal v. Chenevert, 4 L. C. J. 239, S. C, ; 6 L. C. J. 46, 12 L. C. R. 146, Q. B. 1861. Ricard V. Lfduc etal., 6 L. C. J. 116, C C. 1862; see Davidgon v. Laurier, IQ. B. 11. 369, Q. B. 1881 ; Archambault v. Boldu-, 2 Q. B. R. 110, Q. B. 18^' 2. In an action by a creditor of a Railway Company against a share- holder to recover the amount unpaid on his shares, the cause of action arose at Montreal where the Company had its principal office, and where judgment was rendered for the debt due by the Company and execution was issued, and not at Bedford where the shareholder subscribed for his shares. Welch v. Baker, 21 L. C. J. 97, S. C. 1876. 3. The cause of action arises where the note sued on was made, and not where it is made payable. Miilholland et al.v. The Company , dr. of A, Chag- 11,111 et al., 21 L. C. J. 114, S. C. 1877. 4. A sale effected by correspondence between the plaintiff and the defendant, residing in different districts, delivery to be made in plaini iff's district and payment to be by note payable in defendant's district, (,oes not give rise to a right of action in plaintiff's district. Warren v. Art/ et ,(/.. 6 L. C. R. 492, S. C. 1856. ."). Action on promissory notes made in one district and payable in another, may be brought in the place where they are made payable. Claxton et al. v. McLean et al., 4 R. L. 654, S. C. 1873. 6. When a promissory note bearing date at ^Montreal was really made in Sorel in another district, tlie cause of action arose in Surei. The Na- tiiiual luKitrance Co. v. Cartier, 22 L. C. J. 336, S. C. 187'^ ; iludon v. Champagne, 17 L. C. J. 45, S. C. 1873; contra, Thibaudeaw v. Danjou, 6 Q. L. R. aSl, S. C. 1880 ; 1 Q. B. R. 98, Q B. IHHO 7. Tlie defendant resided in Ontario, and the plaintiff impleaded him in ^loiitreal, the action being commenced by an attachment by garnish- nu'nt in the hands of garnishees having a place of bijsu.ess in Montreal. The declinatory exception wii . dismissed. Chapman v. yinimo and thf Phmii.r AHgurance Cimpany, 11 L. V. R. 90, S. C. 1860. H The plaintiff, residing at ^[ontreal, sued the defendants, whose domiciles were in other districts, for having falsely, SiC, made allidavit at Three Rivers charging him with a felony, and for procuring a true bill against him and causing him to be tried at Three Rivers, but alleging his arrest to ha\e been made within the district of i\Iontreal under a bench- warntnt fro'.n thu Court at Tln-ee Rivers. It was held that the Courts at Montreal had no jurisdiction. .Senecal v. Pacaud et al., 10 L. C. R. 419, B. C. IHtiO. \n :\y- : i Itr-r «. w',?^'- ] >> r Am ■If Pi 86 PRELIMINARY PROVISIONS, ART. 34. 9. Where the defendant in Ontario consigned to plaintiff at Montreal 2,000 barrels of aour, to be sold by him, and in anticipation of the sale drew on the plaintiff for $6,000, who accepted and paid the draft, but the flour, on being sold, did not realize so much, and the plaintiff sued for the difference; it was held that the cause of action arose in Montreal. O'Connor v. luiphael, 11 L. C. J. 123, Q. B. 1867. 10. Where two defendants were brought into the case for the purpose apparently of giving the Court jurisdiction, and of bringing the defend- ants proper from their own district to Montreal, it was held that this was a violation of the law, and the action was dismissed. Davis v. Kimpton et al, S E. L. 118, Q. P. 1870. 11. The Court at Montreal has no jurisdiction to compel a defendant to answer a suit on a draft made there, but accepted and payable at St. Hyacinthe. Greene et al. v. Blancneite, 20 L. C. J. 196, 8. C. 1876. 12. Where a life insurance company, having its home-office in New York, and its principal office for this Province at Montreal, and a local office in Quebec, had, upon application made in Quebec, issued a policy to a person residing in that city, and, being sued thereon, was required by process served at the Montreal office to appear and plead before the Superior Court at Quebec, and declined the jurisdiction, it was held that it was incumbent on the plaintiff '■o show that the policy had been executed at Quebec, that the proof adduced was insufficient for that pur- pose, that, on the contrary, there was reason to presume that the policy had been made and executed at the home-office, and that the exception must, in consequence, be maintained. Vezina v. I'he New York Life In- turance Company, 1 Q. L. R. 207, S. C. 1876. 13. The cause of action upon an acceptance of an application for a policy of life insurance does not arise where it was taken by an agent, but where the office of the Company is situated. Pattinon v. The Mutual Insurance Co. of Stamtead, dr., 16 L. C. J. 25, S. C. R. 1872; 38 Vic. cap. 20, sec. 11 (Ca.). 14. An Insurance Company whose domicile is at Montreal, whose policies issue from Montreal, but which takes risks at Quebec through its agent who resides there, may be sued on such risks at Quebec. O'Mul'ei/ v. The Scottish C. Inmrance Co., 4 Q. L. R. 226, S. C. 1878 ; confirmed in appeal. Tourif/ny v. Ottawa Ayric. Imurance Co., 3 L. N. 1%. Q. B. 1H80. 15. A suit brought in the district of Quebec against a defendant resid- ing in the Sp.guenay district for work done there under a verbal hiring at Quebec, will be dismissed on exception. Trudel v. Duval, 4 Q. L. R. 180, S. C. 1878. 16. The defendant, domiciled at Montreal, wrote to the plaintiff, a resident at Arthabaska, reriuesting him to take charge of his, the de- fendant's lands, at the latter place, and promised to indemnify him for his services, in the diss: Chutier v. L 17. Thedt to a person n recover the p » ^- C. J. 104 . 18. The ma rise to a right onlered. Foot 19- Where a the agents of t were sent to th( from the Custoi agent there, th they were shipp ^"''^- Gregory C- R. 475, and 1 ^ 20. ThepWnt: for a balance of r purchase of grai„ ^ ^- C. L. J. 26, , , 21 Where a re cliant i„ Montreal asentofthemercl] ansen in Montrey «• C. 1863. --• An action [A ^'"y'and, WHS laai] •^i«. S. C. J 862. 2- The Circuit actions the cause , «f "t, although til .^-1^'cl, such given '" f"ch other dist ^- C. iH^i^ 24. R. ajrreod verJ *^ec, whereupo., H J «'« agent to send n ;;-l»ch was done. an| ''^^ttheca.seofaci '»eant the whole ca. ^'action. liotuxeuu, PRELIMINARY PROVISIONS, ART. 34. 37 his services, — Held, that an action for the value of such services brought in the district of Arthabaska was properly dismissed on exception. Cloutier v. Lapierre, 4 Q. L. R. 321, S. C. R. 1878. 17. The delivery at the Montreal post office of a newspaper addressed to a person residing in another district, gives rise to a right of action to recover the price thereof in the former district. Penny et al. v. Berthelot, 9 L. C. J. 104, C. C. 1865. 18. The mailing of a newspaper in the Quebec post office does not give rise to a right of action there, though it might do so if the paper were ordered. Foote v. Freer, IS> L. C. R. 46, C. C. 1864. 19. Where a contract for the sale of goods was made in Montreal with the agents of the plaintiffs, who were a foreign company, and the moneys were sent to the agent, so that the defendant could not have got the goods from the Custom House in Montreal without applying to the plaintiffs' agent there, though these 'vere at the defendant's risk from the time they were shipped at Boston, it was held that the cause of action arose here. Gregory v. The lionton, lOc. Glanii Gompany, 9 L. C. J. 134, 15 L. C. R. 475, and 1 L. C, L. J. 37, Q. B. 1865. 20. The plaintiffs sued in Montreal on a contract made at VerchAres for a balance of money which they had advanced to the defendant for the purchase of grain ; the action was maintained. Ainiot et al. v. Martineau, 1 L. C. L. J. 26, 8 C. 1865. 21. Where a resident in Toronto ordered goods by letter uom a mer- chant in Montreal, and also gave verbal orders for goods to the travelling ii^'ont of the merchant at Toronto, the cause of action was held to have arisen in Montreal. Clark v. lUtchey, 9 L. C. J. 234, 14 L. C. R. 48, S. C. 1863. 22. An action in Quebec upon an obligation made there but payable In England, was maintained. JackKon ft al, v. Coxworthy et al., 12 L. C. K. •116, S. C. ]862. 2"'. The Circuit C mrt sitting in any given circuit has jurisdiction in actions the cause of which has arisen within the limits of such given circuit, although the defendant reside in a district other than that in which such given circuit is situated, and has been served with process in such other district, ilardie et al. v. Trottier et al., 1 L. C. R. 286, S, C. 1851. 24. R. agreed verbally with H. at Nicolet to tow his raft thence to Que- bec, whereupo'i H. telegraphed to his agent in the latter place to instruct R 'h agent to send up R.'s steamboat tt) perform the towage in question, which was done, and the raft was towed to Quebec accordirgly, — Held, that the ct> ise of action did nut arise in Quebec, that the cause of action meant the whole cause, or all the circumstances giving rise to the riglit of action. Jiout»eau v. Huyhet, 8 L. C. R. 187, S. C. 1857. flip: Wi. '-i 1 1'l? ' 1 '^ 1 1 ^ ,1 n \L^ } ' i Bif i i.i m| n HI' i 8|> K' USM 88 PRELIMINARY PROVISIONS, ART. 34. m ij-i 25. The master of a steamer from Glasgow to Montreal failed to deliver a passenger's luggage shipped on board of the vessel, — Held, that the cause of action arose in Montreal. Macdougall v. Torrance, 5 L. C. J. 148, 8. C. 1861. 26. An action of damages for libel may be brought in any district where the newspaper is circulated through the post-office. Irvine v. Duvernay et aL, 1 Legaf News, 138; 4 Q. L. t.. 86, S. C. 1878. 27. Where a commercial traveller had commissions to act for various houses in Montreal, and to sell goods, and he took an order at Kamou- raska for one of the houses he represented, and such order was accepted at Montreal, it was held that the right of action did not arise in Kamou- raska. Lapierre v. Gauvreau, 17 L. 0. J. 241, S. C. R. 1873; Gnaedingerx. Bertrand, 2 L. N. 377, 24 L. C. J. 8, S. C. 1879. Contra, GauU v. Her- traiid,2 L. N. 408, 411 ; 24 L. C. J. 9, S. C. 1870; 25 L. C J. 340, Q. B. 1881; Dennarteav v. Mausjield, 3 L. N. 136, S. C. 18H0; see also iWroft v. Jackson, 3 L. N. 136, S. C. 1880. 28. A debtor is liable to be sued where the debt \;a8 contracted, but not where it was made payable, merely on account of the debt having been made payable there. Wurteic v. Letiijhan, 1 Q. L. R. 61, 8. C. 1874. 29. Where a contract, though bearing date at Montreal, wa^ Jjroved to have been made in Ontario, the right of action was held to have arisen in Ontario. The Railuuu, (tr. Advertiifimj Co. v. Hamilton et al., 20 L. C. J. 28, S. C. 1875. 30. Defendant signed a stock-subscription book in the district of St. Francis and gave his note for ten per cent, on tho iimount of h'o shares. He was sued iii Montreal where the call was made. A dec' .latory e\- cdption was maintained on the i,'round that the call was not the cause of a right of action, but merely the determination of tlio date of nif.turitv of the payments, and on the ground that the whole cause of action had not arisen in Montreal, part having arisen in St. Francis. Xational Iitxiinnirc Co. v. r,ii re tlit inortgage given to plaintiff, and seeking t) change the order of registration, is not p'- .-ely piTsonai. luuicher v. Vain- chaud ft ul., 3 L. N. 31(1, S. <". 1S80. 33. As to actions ;>r* sof/o, see (ioKKi't v. lialiin, 2 Q. L. R. ill. (). B. 187(1; Lafrance v. Jack-ton , 4 L. N. 60, S. C. 1881. 34. The right of action for the recovery of a debt due undc^r a notarial obligation executed in ^ronl^eal. originated in Montreal and not where :i demand of payment was made. Diwhrsuai/ \. I.'tlinrqii,; 2.1 L. C. J 2''n S. C. R. 1880. 85. In oi other than one district be sued bef( been served ArclianibauU 36. When niay be sue failure to pei Mort/an, 6 L. 37. Where ance coznpan situated, whil Hnothev distri, 'I'ownKhips Mut 3^6, S. C. i87y 3 I^. N. 2-d\), s. »«• The caus P"»y against a app.'ication is j, comjjttny is situ ^V. •• Mutual Fire 1881. 39. Certain -„ ■"it- Francis, .m,! '" «t. Francis, u that the cause of V / 'a.iey. 23 L. (.: •^^- A contract I ttft(>r notice han .. '■'iti/iestJieagreeil '"''i accepte,! tin. •"'Strict of g,H.|,,., over the defend,,,] " ''<■/<■/■ rt a/, ;t (, ^l Oefendaiu "i'"'«' and si.„r.,l ^"" to j.laii, tiffs ,1 ''■'•''• l"'t the not! ""■ '*'■ ^tWct of Moil i'-i. A per.son in ''•I'-'ific Railway i„| ' 7"ver dan,aa,.s „ I ^^■''^'» tJie latter wef PRELIMINARY PROVISIONS, ART. 34. 39 85. In order to enable plaintiff to summon defendant before a ("Jourt other than that of his domicile, the cause of action must have arisen in one district only ; and if it have arisen in several districts, defendant must be sued before the Court of his domicile or in a district where he hat; been served personally. Faucher v. Drown, 2 Q. B. R. 168, 1881 ; see also Archambault v. liohluc, 2 Q. B. R. 110, 1881. 3fi, Where the action is for damages for breach of contract, the debtor may be sued at the plr-ce where the contract was made, though the failure to perform occurred in another district. Quebec Shippiiui Co. v. Moi-nan, 6 L. N. 234, Q. B. 1883. 37. Where defendant was sued on a premium note given to an insur- ance company in the district where the company's head-office was situated, while the note was made and he resided and was served in another district, a declinatory exception was maintained. The Kuntern Towuahips Mutual Fire Insurance Co. v. lUenvenu, 2 L. N. 363, 23 L. ('. J. 31(1, S. C. 1879; see Mutual Fire Insurance Co. of Stanntead v. Gallnut etai, 3 L. N. 239, S. C. R. 18K0. 38. The cause of action in a suit bio'itjht by a mutual insurance com- pany against a member arises where the policy is dated, and wl: jre the application is accepted, and at the place where tbc head-office of the company is situated, and not where the note and i..^ ^ iication wore made. Tic Mutual Fire Inxurance Co. oj Juliette v. Dexrousellen, 4 L. N. 220, S. C. 1881. 39. Certaiji goods were sold by sample to defendant at his doniiciU' in St. Francis, and an order given therefor dated Montreal but really made ill St. Francis, whither the goods were sent by rail froi!) Montreal, Hfld, that the cause of action arose in St, Francis and not in Montreal. Shupe V r./.sr;/, 23 L. C. J. 290. S. C. 1878. •to. A contract made with a nenotiorum ijesloi binds the parties only after notice has been given by the principal to the otiiei- party that he ratilies the agreement. The cause of action arose where the party received aiui accepted tlio proposal ; and a st'oulation to deliver the goods in the district of Quel)ec does not suffice to give jurisdiction to the (.'ourts tlieic over the defendant, \s'ho resides and cor:racted in Ontario. riiuri amenable to i Lemesurier v, L. C. J. 297, I 8. An actioi pel tlie vendee in Montreal or the property li McMartin v. M\ 4. Where an ing received no draw the other this article was C. 1884. •'>• In a person «ued in tho distr v. Atiinr et al., h «eo Davis v. A' •**• 111 ma before the coul i^ it open.s in place where tlJ of the defeiuJa] '*^« In aetid 0^ suit, the def the principal a| ciie may be. 1. The warranto principul demand «• C. It. I8a2. •*!• When al or immovables] Hnd partly in a] ^*'''-. e. 82, s. !'-3\f PBKLIMINARY PROVISIONS, ARTS. 38-41. 41 2. If several defendants reside in the same (mtrict, service of process on one of thorn in another district, does not render the other defendant amenable to tiie jurisdiction of the Court in the last-moutioned district. Lemesttrier v. Oaron, 1 Q. L. R. 88, 8. C. 1874 ; De la Jionde v. Walker, 20 L. 0. J. 297, 8. C. 1876. 8. An action to enforce a promise of sale of an immovable and to com- pel the vendee to execute a deed, is purely personal ; and personal service in Montreal on the defendant gives the court there jurisdiction although the property lies in Terrebonne and the defendant resides in Beauharnois. McMartin v. }yahh, 5 L. N. 402, 8. C. 1882. 4. Where an endorser who was discharged in consequence of not hav- ing received notice of .the protest, was impleaded solely in order to with- draw the other defendant (the maker) from the court of his own district, this article was held not to apply. liaxtvr v. Martin et «/., 7 L. N. 78, Fj. C. 1884. 5. In a personal action agaiuHt several defendants, they may be legally sued in tho district wliere one of them has been served personally. Foid v. Auricr et at., 18 L. C. .J. 2i!('., 8. C. 1874. See Davin v. Kimpton it al., supra, Art. HI, No. 10. • JJO. In matters of succession, the parties are summoned before the court of the place where the succession devolves, if it opens in Lower Canada, otherwise, before that of the place where the property is situated, or that of the domicile of the defendant or of some one oi the defendants. — Ihid. 40. In actions in warranty and actions in continuance of suit, the defendants are summoned to the place where the principal action was brought, wheresoever their domi- cile may be. Ibid., c. 82, ss. 31, 33 ; C. P. C. 5i). 1. The warrantor's right of api)eal is determined by the amount of the principal demand and the costs thereon. Gauthier v. De»y, 9 Q. L. R. 13, S. C. R. 1882. Mm'- 1 ■ -'i" 41- Wlien a real action has for its object an immovable or immovables, situated partly in one district or circuit, and partly in another, the suit may be brought in either. Ibid., c. 82, 8. 2a. 1 1 42 PRELIMINARY PROVISIONH, ART. 42. 4*1. If the sole Judge adminifitering jnstict* in any dis- trict is liable to be recused, or must be a party to the suit, the action may bo br( .„'ht in one of the adjoining <;i; •rict». the grounds of recusation or disability being allt';;od lU the demand; and if ihcse grounds are insufficient or not proved, the court may order the case to be -.ont back to the court before which it would have been brought in the or- dinary course. C. S, L. C, c. 78, s. 20 ; c. 7!), s. 10. 1. Defendant bemg sued in Joliette because there oxinted an alleged cautM3 of recusation ii<;ainBt tlie sole Judge in Richelieu, where he would under ordinary circuinstant'i'H he sued, ap))earc(1 itnil ne^jlocted to plead to tlie jurisdiction. After jud(,'nient he protendeil that tlu' court had had no jurisdiction, as the f,'n)unds of recusiit >n had not been proved — //<■/th('r cases j S8. 1, 48; C. 1 ■m i ■ I ■ ■:«l 8i !• Where jud^ nounced, the hus without a writ t child, the cu8t(Ml Delis/,., 7 L. N. '^- A tutor c /■■•'■/'. hiutust V an 44' Writs upon the writ «8. 81,38; C 1- Thedefcnda tlie writ had not , "" t'i'it was neceH « C. mil. ¥,■■' 45. Thev theEngh.shJa ■*"• I'Jjej' a ^f'itl., H. 1. n TITLE FIRST. OF THE SUIT. CHAPTER FTl. OF fll MM0N8. 4}<- Every action before tlie Superior Court is instituted by means of n writ of summons, in the name of the sove- 'vi'^n ; saving the exceptions contained in this code, and jthcr cases providid for by special laws. C. S. L. C, e. 83, S8. 1, 43; C. P. L. 179. 1. Where jiulfjment of scparatinn from bed and board lias been pro- nounced, the husband canui on Hummary petition, not in a pcndinjj case, witliout a writ of Humnions, obtain an order to jKinnit him to see his child, the custcxly of wiiich has been ^ivcn to the mother. J\.rp. I'illet v. DelisI,', 7 L. N. 78, K. C. 1H84. 2. A tutor cannot he iinpleade L. C. J. 158, SC. ISOl. 4»5. They may be drawn up either in the Frsneh or in the English language. C. S. L. C, c. 83, s. i. 40. They are attested and signed by the prothonotary. IhiiL, 8. 1. j)> ii. >^^,^^. .su\^ ^ *r^. y / -W' > IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ^1^ 1^ ^ us, IL25 i 1.4 12.0 IMISB 1.6 Hiotographic Sciences Corporation k A ^/ ^ ^ m <\ \ <«^. 33 WIST MAIN STMIT WEBSTIR.N.Y. MStO (71«) •73-4S03 6^ 4^ \ v 44 OF SUMMONS, ARTS. 47-48. 47. The absence of the seal of the court does not invali- date the writ. Ibid., ss. 1, 2. 48. Saving the particular exceptions hereinafter men- tioned, writs of summons are directed to any bailiff of the Superior Court, commanding; him to summon the defendant to appear before the court on the day and at the place therein mentioned. If there are several defendants residing in different dis- tricts, several writs must issue addressed, as the case may require, either to a sheriff or to a bailiff of each of such districts. Ibid., ss. 3, 4. 83 V. c. 17 (Que.) : "1. Notwithstanding the provisions of articles 48, 84, 248, 461, 556, 669, 809, 836, 857, 899, 1081 and 108? of the code of civil procedure of Lower Canada, all writs of summons, of attachment for rent, of attach- ment in revendication, of attachment before or after judgment, seizure in execution, capias, subpoena or order, issuing either from the Superior or Circuit Court, may be addressed either to the sheriff or to any bailiff of the district in which such writ issues, and may be by them served or ex- ecuted in such district or in any other district, or to the sheriff or to any bailiff of such other district in which such writ is to be served or ex- ecuted." 1. The service of a writ of summons addressed to any of the bailiffs residing in the district would be good if served by a bailiff appointed for such district. Tetu v. Martin, 3 L. C. R. 194, 8. C. 1853. 2. A writ of summons requiring the defendant to appear before " our judges of our said S. C." is bad, as the summons should be to appear be- fore a Court. Macfarlane v. DelesCerniert, 4 L. C. R. 25, 8. C. 1853. 3. A writ summoning the defendant " before our justices of our B.C." is good. Macfarlane v. Beliveau, 3 L. C. J. 306, 8. C. 1859. 4. Writs out of the C. C. need not be addressed to the sheriff or to a bailiff. Laurence v. Chaudiire, 17 L. C. J. 83, C. C. 1873 ; Mathieu v. Brosseau, 4 R. L. 626, C. C. 1873. Contra : lieeves v. Arcltambault, 16 L. C. J. 83, C. C. 1871. 5. They may be addressed to the defendant. Mathini v. Brosieau, 4 R. L. 626, C. C. 1873. OF SUMMONS, ART. 49. 45 49. The writ must state the names, the occupation or quality and the domicile of the plaintiff, and the names and actual residence of the defendant. In actions upon bills of exchange or promissory notes [or any other private writings, whether negotiable or not,] it is sufficient to give the initials of the Christian or first names of the defendant, such as they are written upon such bills, notes or instrument. When a corporate body is a party to the suit, it is suffi- cient to insert its corporate name and to indicate its princi- pal place of business. Ord. 1667, tit. ii., arts. 2, 6 ; 25 Geo. III. c. 2, s. 1 ; 12 V. c. 38, s. 50 ; C. S. L. C. c. 64, s. 29 ; C. S. C. c. 63, s. I, c. 65, s. 4 ; C. P. Geneve, 34 ; C. P. C. 61. 42-43 Vic. c. 20, (Que) : If the defendant has no domicile or permanent residence in this pro- vince, the mention of his saruame alone will suffice if his christian name cannot be ascertained, provided he be otherwise sufficiently designated in the writ, and that such writ be served upon him personally. , 1. The names Eliza BAH by which female plaintiff was known and called at the time of her marriage coupled with her designation as the wife of the other plaintiff who is properly named are a sufficient state- ment of her names although she was baptized Marie Eliza liAiL Pouliot et ux. V. Solo et vir., 5 Q. L. R. 325, 8. C. 1879, 2. The title of "Esquire" suffices though plaintiff be a resident of the United States. Bradley v. Logan, 3 L. N. 200, S. C. 1880. 3. If defendant's quality be not given the action will be dismissed upon exception to the form. Huot v. Cloutier, G Q. L. P. 195, C. C. 1873. 4. Where defendant was styled Lisa B. in the v/rit and it was proved that her real name was Elizabeth B. but was sometimes called by her family name, Lizzie, the action was dismissed upon exception. Lamarche v. Blanchard, 10 R. L. G78, C. C. 1880. 5. Where the rtxil debtor is sned under a wrong christian name and being served personally suffers judgment to go against him by default, he cannot oppose the seizure of his goods under such judgment on the ground that he is not the person against whom judgment was rendered. Merchant Bank v. Murphy, 23 L. C. J. 215, 9 R. L. 694, S. C. 1878. PI ./fl ^is< (<" m: ) ' 1 \ ,1 5* . n 46 OF SMMM0N8, ART. 49. fJ^J 6. In an action against the master of a vessel then in Quebec, it was held sufficient to describe him by the initials of bis Christian name as he had given them at the Custom-house, especially as his occupation, Ac, were correctly given. Cloony v. Nett, 17 L. C. R. 262, S. C. 1867. 7. Where exception to the form was filed in an action, on the ground that the defendant was described as residing in the village of St. Jean Baptiste, whereas the proper name of the parish in which he resided was St. Jean Baptiste de Rouville, and it was proved that there were two parishes of that name, one of Bouville and one of Boxton, the description was held to be sufficient. Gigoii v. Hotte, 2 L. C. J. 193 and 8 L. C. B. 271, S. C. 1.858. 8. On a capias, where motion was made to quash the writ, on the ground of irregularities in the affidavit, — Held, that the plaintiff being described as "of the city of Kingston, Canada West," was a sufficient indication of his domicile. Ikrry v. May, 13 L. C. B. 1, S. C. 1859. 9. A defendant, styled in the writ and declaration iiienuisier, pleaded by exception to the form that he was not, and never had been, a menuisier, but that he was a contractor and trader, and on proof, the exception was maintained in the Court below, but in appeal it was held, that the quality 'of menuisier was made out in evidence, the defendant having in authentic deeds designated himself by such quality ; and that, even if he were a contractor, such quality is reconcilable with that of a menuisier. Boucher v. Lemoine et al., 10 L. C. B. 456, Q. B. 1860. 10. Where a writ of summons described the defendant as of St. Hya- cinthe, whereas he in fact lived in the parish of St. Hyacinthe le Con- fesseur, and there were three distinct places in the district of Montreal known respectively as the town of St. Hyacinthe, the Parish of St. Hyacinthe, and the Parish of St. Hyacinthe le Confesseur, — Held, on an exception to the form, that such description was quite sufficient, and the exception was dismissed. Lyman et al. v. Chamard, 1 L. C. J. 183, S. C. 1857. 11. Where, in an action on a pro ry note against two defendants, one of them residing in the town of ciuerbrooke, was described as of the township of Orford,— //f/-', .eversing the judgment of the Court below on an exception to the form, as the township of Orford included that part of Sherbrooke in which the defendant lived, tiiat he had boen properly described, and the exception to the form must therefore be dismissed. Morse v. Brools et al., 2 L. C. J. 39, Q. B. 1857. 12. Where the writ sets forih only one of plaintiff's three names and indicates the others by initial lettevs, the action will be dismissed on exception to the form. Gauthier v. Callaghan, 3 Q. L. B. 384, C. C. 1877. 13. Where plaintiff gives his Christian name as " Thomas," proof that he sometimes signed "Thomas J." and sometimes "Thomas," is not sufficient t Christian i News, 43. 14. The c of banking stating whe: of liritish N 15. Plaint specified in i tian name. No. 64, post. 16. Where actual reside) ception being 17. Thereq his surname a other, provide • iJay et al. v. 1 «0. The in a declarl 170, Ord. 1^ 1- An acti >r expressed in fiJ S. C. 1861. 2. Where pel lished only aga Fletcher v. Forn et al ; Hoy V. 23 L. C. J. 121)] '^- If there not lie. Hitch\ McGinnis v Mc{ J. 282. 4. But where) partners, an af Kev. de L6g. 35 Morris, in apped m n€ OF SUMMONS, ARTS. 49-50. 47 sufficient to support an exception to the form alleging that he had two Christian names. Hearn v. Molony, 3 Q. L. B. 33'J, Q. B. 1877; 1 /jegal News, 43. 14. The description of plaintiff as carrying on the trade and business of banking in the city and district of Montreal and elsewhere without stating where it had its principal office, is sufficient. Bureau (0 The Dank of British North America, 21 L. C. J. 201, Q. B. 187r). 15. Plaintiff may maintain an action in the name (Henry S. Scott) specified in the lease without any further designation of his second Chris- tian name. Scott v. Hardy et vir, 4 Q. L. R. 215, S. C. 1878. See art. 11('>, No. 54, post. 16. Where the writ of summons sets forth the domicile instead of the actual residence of the defendant, the action will be dismissed upon ex- ception being filed. Martel v. Plamondon, 22 L. C. J. 107, S. C. 1878. 17. The requirements of this article are fulfilled by the plaintiff stating his surname and one of his two Christian names, with the initial of the other, provided the defendant be not mislad as to who the plaintiff is. Day et al. v. Trial, 9 Q. L. R. 370, S. C. R. 1883. 50. The causes of action must be stated in the writ or in a declaration annexed to it. C. S. L. C. c. 83, ss. 84, 170, Ord. 1667, tit. iii. art. 1 ; C. P. C. 61. 1. An acti"«n will be dismissed on exception if the amount demanded is expressed in figures in the declaration. Rivet v. Poixifon, 11 L. C. R. 493, S. C. 18»J1. 2. Where persons are sued as partners, and a cause of action is estab- lished only against one individually, the action will be dismissed in toto. Fletcher v. Forbes et al., 22 L. C. J. 24, S. C. 1809 ; and Ritchie v. Thomas et al ; Roy v. Hlaijdon d' Bimcher ; supra art 17 ; contra. Fuller v. Reesor, 23 L. C. J. 129, 9 R. L. 637, S. C. R. 1878. 3. If there be a special agreement, an action indebitatus assumpsit will not lie. Hitchcock v. Grant, Fielders v. Blaekstone, 2 Rev. de Leg. 80; McGinnis v McClosky et al., 1 L. C. J. 193; Inyham v. Kirkpatrick, 3 L. C. J. 282. 4. But where a balance has been struck and a settlement made between partners, an action in assumpsit will lie. Robinson v. Reiffenstein, 1 Rev. de L6g. 352; Delgrave v. Hanna, 1 Rev. de L6g. 353; Marcouxx. Morris, in appeal, 1872. '.Si ■" YIB ^i. ig ! 'i 1) > rti :hiL 48 OF SUMMONS, ART. 50. iinM' 1 1,: 4. 5. In an action in which the law dirocta the tenam and aboutimsam to be set out in the declaration, it is not sufficient that the land is so described that the defendant must necessarily know it. The description must be such as will enable the Court to award judgment as to what is asked. O'Connor v. Couture, 3 Rev. de L6g. 40, K. B. 1821. 6. In a hypothecary action the plaintiff in his declaration must describe the premises which he claims to be mortgaged by metes and bounds ^ peine de nulliU. Perrault v. L'Evesque, 3 Rev. de L*g. 72, K. B. 1819. 7. And if he omits to do so his action will be diimissed upon e.xception to the form. lb. 8. The details of an action need not be annexed to or mentioned at length in the declaration, nor has any change been effected in this respect by the Code. La Danque Nationale v. The City Bank, 3 R. L. 28 and 17 L. C. J. 197, S. C. R. 1871. 9. In an action d'injures, the time and place when and where the words were spoken must be stated, othe. ."'se the action may be dismissed on exception to the form. Goudie v. Legendre, 3 Rev. de Leg, 39, K. B. 1820. 10. In an action on a contract, the contract must be set out in the declaration. Simard v. Mathurin, 2 Rev. de L6g. 208, E. B., and 3 Rev. de L6g. 39, K. B. 1812. 11. In an action on a promissory note payable at a particular place therein mentioned, — Held, that presentation at such place must be alleged. Plaintiff allowed to amend. Partridge v. McLeod, 2 R. C. 237, S. C. 1872. 12. But it is not necessary to allege in the declaration that the note is stamped according to law. Doyle v. Clement, 10 L. C. J. 332. S. C. 1866. 13. In an action of damages for libel and slander containing three counts brought against three persons, described as all of the Clity of New York, mercantile agents and co-partners, carrying on business in the City of Montreal, under the name, style and firm of R. G. Dur, & Co., exceptions to the form were fyled by two of the defendants on the ground inter alia that the cause of action was insufficiently libelled, inas- much as it was alleged that the defendant falsely and maliciously did compose and write in a certain book kept in the office of the defendants a certain false, scandalous and malicious libel, to the effect that the said plain- tiff was not reliable, or that the plaintiff was insolvent, or words to that effect, but, as the defendants had refused to allow the plaintiff to see the book he was unable to state the exact words therein written, — Held, that the exception was well founded, and the action must be dismissed. Mc- Donald V. Dun et at., 12 L. C. R. 345, S. C. 1862. Humirr v. Len Ufa OF SUMMONS, ART. 50 49 14. Plaintiff brought a hypothecary action against the defendant at) the holder of an immovable hypothecated by a third party for a debt due by him to the firm of which plaintiff was a member, the partnership having been dissolved and plaintiff having become proprietor of all the debts due the partnership — Held, that the conclusions of the declaration praying that the holder be condemned to pay the amount of the mortgage against the said immovable unless he preferred to abandon it, were illegal. Reiiaad v. Proulx, 16 L. C. R. 476, 8. C. 1866. 15. A hypothecary action which concludes by asking that the defen- dant be condemned to pay the claim or abandon the propeiiy is sufficient. Homiir v. Lenwi te, 14 L. C. J. 58, S. C. 1869. 16. Tfie plaintiff in a hypothecary action is well founded in demand- ing a personal condemnation against the tiers tU'tenteur unless he prefers to give up, A'c. La SociAJde congtruclion Metropolitaine v. Bourassa, 20 L. C. J. 304, S. C. 1876. 17. In an action in revendication the title on which the plaintiff claims must be distinctly stated in the declaration, and if t is not, it is a good cause of exception to the form. Poulhiot v. Scott, 3 Rev. de L6g. 195, K. B. 1820. Conti-a : Touriijny v. Bouchard, infra, art. 866. 18. And where the defendant pleaded that the plaintiff did not ask by his declarati(ni to have the attachment in revendication declared good and valid and that the effects seized be delivered up to him — Held, con- firming the judgment of the Court below, to be unnecessary, as, by the writ, the defendant was called upon to show cause why the attachment should not be declared good and valid, which was equivalent to a demand that the effects seized be delivered to the plaintiff, and the writ and de- claration should be considered as one. Jackxon v. Filtcau, 15 L. C. R. 1.0, Q. 13. 1864. 19. When the particulars of plaintiff's demand are not disclosed by the declaration, and no bill of particulars is therewith filed, such bill of par- ticulars may be filed at the enquute, if the defendant instead of moving to dismiss pleads to the action. Wextrop v. Sichol et ul., 2 L. C. J. 194, S. C. 1858. 20. In a case of capias — Held, that the 30th Rule of Practice, allow- ing the defendant to move to dismiss the action when the particulars of the demand are not disclosed by the declaration, and no bill of particulars is filed therewith, does not apply, even in the case when the defendant is in jail under capias, where a paper purporting to be a bill of particulars js filed with the declaration, though such paper do not contain a detailed statement of the whole of plaintiff's demand. Henderson v. Ennis, 2 L. C. J. 187, S. C. 1858. 4 F.C.C.P. ,,1^ 00 OF SUMMONS, ARTS. 50-52. i ' 21. The filing of a declaration with a writ of attachment in conipul- Hory liquidation, under the Insolvent Act of 1869, is irregular. McInUuh V. Davin et at., 14 L. C. J. 235, 8. C. 1870. 22. Appellant sold wood to one Parker who therewith saccesafully built two houses on respondent's proiJcrty. Respondent paid aptiellant for the wood used in the building of the Arat house, but refused to pay for what was used in the second, contending that be had never authorized Parker to purchase wood for the second house, from which, according; to him, Parker alone was to derive any benefit. Aptiellant olaiined of res- pondent the full value of all wood delivered to Parker by an action //( an- ^uiiipnit — Held, that even had respondent profited by the H^cond building', un action /» an^umpnit would not lie. The action should have been special. Ryder \. Vuughan. 1 Q. B. R. I'J, 1880. 51. The formalities mentioned in articles 46, 48, 40 and 50 are required on pain of nullity. Ord. 1667, tit. ii., arts. 1, 2. The nullity mentioned in this article is relative only. Ihnj v. Trial, 9 Q. L. R. 370, S. C. R. 1883. «S3. If the object of the demand is a thing certain, it should be described in such a manner as clearly to establish its identity. If it relates to a corporeal immoveable, the nature of such immoveable, the city, town, village, parish or township, street, range or concession wherein it is situated, and also the lands conterminous to it, should be mentioned. U it is a body of land, known under a particular name, it is sufficient to give its name and its situation. If the immoveable forms part of a township, parish, city, town or village, the lots in which are numbered, it is suffi- cient to state its number. If the demand relates to rents constituted for the redemp- tion of seigniorial rights or to rights relating to any seigni- ory, they must be described according to the provisions of the Act 27 and 28 Vic, ch. 39. Ord. 1667, tit. ix., arts. 3, 4 ; C. S. L. C. c. 41, ss. 26, 28 S 2 ; c. 37, 8. 74 ; C. P. C. 64 ; C. P. L. 173. «a. Th( upon the d( tary may b( The amend] of the dema C. S. L. ( ^- A plaintii action for anotl 2. In an actio ;rain, the plaintiff by the prayer of his declaration, only claimed for three bushels — Held, that judgment for more than three bushels might be ren- dered, as it was manifest from the preceding portion of the declaration that the plaintiff really claimed three hundred bushels. Lamonreux v. .Molleur, 19 L. C. J. 110, 8. C. R. 1874. 8. Where the plaintiff, in an action in revendioation, had omitted to include in his prayer all that was necessary to obtain his demand — //('/(/, that he would not be allowed to make supplementary conclusions but nmst proceed by motion to amend. Poulin v. LangUns, 10 L. C. R. 322, C. C. 18fiO. I .Pi OF SUMMONS, ART. 58. W m 9. Where, in an action against the endorser of u note, the plaint iT. in his declaration, alle»^ed that the note was made on the twelfth of .Tnly instant, instead o.' the sixteenth— //<■/ tile a supplei Tile application jmigMient was r to tile declarat iiction, Uadimi, MitrxolaiH v. L "/ . 17 L. C. J. 2. -'0. The defenr and declaration I H'* part of its desi !ind its iiicidentsj mission to amend Lawn w'e (iniin l\ 21. The court h- t'le pi .tlionot] after ni e.xcepJr 30(1. S. C. ISHl. t'i'i- timi-ndiiu-iit for (Irlay (It „„^ *54. No pn- <^a.v without tl ^othier. Pi| 1037 ; C. P. fcjt-e Art. 2 til I' inorninrr^ OF SUMMONS, ARTS. 68*56. 68 17. The defendant was summoned to appear by his copy of the writ, (in tho '24th April, 18((0, instead of 1801, and pleaded by {wrempiory exception to the form — Held, that the deiendant not having been properly itunimoued, the Court had no power or jurisdio.iou to permit the plaintiff 1 1 Hmend his writ, niaio v. Lumjmon, 12 L. C. R. 28, 8. C. 18A1. 18. A motion to amend a wriu by inserting the proper domicile of the plaintiff, who had been described as liviag in a pai'ih different from that in which he really resided, will be granted, on payment of costs of Ihe ex- ception to the form. Giijui're v. Deauparlant et al., 6 R, L. 61, C. C. 1873. lit. Action was brought by a widow against the executors of her luisband in desatution of their quality. After pita no proceedings were t.il iiintriT timeiuled pltudiiifjH, vide Art. 142. 54. No i>a "ty can be summoned on a Sunday or a holi- day without the express leave of a judge. Pothier, Proc. 7 ; 1 Pig. 1^4, notes a, b ; €. P. C. 63, 1037 ; C. P. L. 207. See Art. 2 supra as to " Holidays." ♦W. No summons can be served before seven o'clock in till' morning, or after seven o'clock in the afternoon^ . ; k f ( I u • 'H '\ 4' \ 'i^, I n ;. h '^• I',': l' > 'It 1, HI '* Ifrf 54 OF SUMMONS, ARTS. 66-66 This provision does not apply however to cases of cajfum nd respondcndnin. Poth., Proc. 7 ; Pig. 184 ; Laws XII. Tables tit. 7, L. 8 ; C. P. C. 1087. Rohinton v. McConiuick, 1 L. C. R. 27 ; 1 Rev. de Lt^«.44. 1. The rule with regard to the hour§ of service io . For service out of district, see Art. 461 Po^t. «7. Ser l)erHon, or i residence, e family. In the ah upon the de has one. — ( <-'hitty'8 Arc 1- A return ji oil the timber Milhmuld v. ,!/<• 'i. Service of i of the hotel, whi et (il. V. Seymour ». Held, on an tion could not \h m\ at a boardin) the law of this cc and declaration o his house with soi ir.id St. Liiwrence 4. Service of j) Motliitt, 8 Rev. ,le •'»• Return of se that the officer sp( V. Bro,,{,, 8 Rev. c «. Where the re, —Held, to be no sJ and there was tlie] 'A Rev. de L«g. 307 7- A defendant . rooms partly furrl validly served by \ the house where h| there. Hearti v. J S. Where defencl three weeks of thJ brother-in-law, an] "o other domicile ^yaldron v. Bremmm or SUMMONS, ART. 67. 56 57. Service must be iniule either upon tlie defendant in perHon, or at bis domicile, or at the place of bis ordinary residence, speaking to a reaHonablu person ))elonging to the family. In the absence of a regular domicile, service may be made upon the defendant at bis office or place of business, if be has one.— C. S. L. C. c. 88, hh. 44, 173 ; C. P. C 08 ; 1 Chitty's Arch. Practice, 184 ; C. P. L. 190. 1. A return of Hervire of process ml reiipittuli'Hdum upon a (^rown person on the timber attached, is no service, and cannot be proceeded upon. McJhmiild V. Mclhmtu'lU .1 Rev. de L6«. .40r), K. B. iHll. 'J. Hervice of a writ of Bumnions by leaving a copy with the book-keeper of the hotel, where the defendant usually stops, is insuDicient. McDounlil et al. V. Sfymmr, 4 L. C. R. 355, H. C. 1854. H. //♦•/«/, on an exception to the form, that service of a writ and declara- tion could not be legally made by leaving copies thereof with a fi') \ant t^irl at a boarding-house where defendant was stopping, inasmuch as, by the law of this country and by the Provincial Ordinance of 1785, the writ and declaration ought to be lierved on the defendant personally, or left at his house with some grown and reasonable jierson there. Thf Chtimpluin iii:il St. Lawrencf liaHwinj Compmiij v. Uiikih-II, . 4. Service of process "at the late domicile" is not good. Cahlwell v. Mo[tn the husband himself at his domicile, and v/as informed by the husband that his wife was out of town, whereui)on the bailiff left without leaving a copy for the wife, and next day another bailiff was sent with another copy for the wife, and the door being opened by the husband again, that person, as soon as he recognized the bailiff, immediately closed it in his face. The bailiff then left the copy intended for the wife on the floor of the porch where he was standing, informing the husband at the same time through the door of i'? , i. ;i ,.' ' Ui S^lS: I m- i'l i'fi 60' OF SUMMONS, ARTS. 67-68. his doing ao. The defendant appeared and attacked the serrice and re- turn by exception to the form, alle<^ing the absence of the wife from town and want of actual service. The phiintiff did not answer, but, at the ar- gument, urged, among other things, that the nullity of service, if any, was covered by appearance, — Held, that though such was the jurispru- dence and practice of the court, prior to the Ordinance of 16G7, that the practice in this respect was now entirely changed, and, as it was neces- sary to appear at some time to urge a ground of nullity in the proceed- ings, that it was much better to do so before the case had gone to judg- ment and a large amount of costs incurred ; and also that the service at the domicile of the husband for the wife was sufficient where the wife was only separated as to property and not de corpx ; that the return of the bailiff should have stated upon whom he served it, and, not having done so, it must be held to be null. The Trunt and Loan Company of Upper Canada v. McKay et rir., 3 L. C. J. 154, S. C. 1859. 2. Service of one copy is sufficient to bring husband and wife, separate as to property, before the court. Tfie Trmt and Lmin Company of Upper Canada v. Mackatf, 9 L. C. R. 4(55, Q. B. 18.59. Contra : Dannereau v. Archamhault et al., 21 L. C. J. 302 ; 1 Legal News, 212 & 327, S. C. ; see, The Corporation of liienviUe v. Gillenpie et vir., C Q. L. R. 340 ; C. C. 1880. OS. //' the defendant has left or has never had his domi- cile in Lower Canada, and haa property therein, the court, or judge, or the prothonotary, upon a return stating that he can- not hejound in the district, maif order him to appear uithin two months from the last publication of such order. The order must be published in the French and English languages, and be twice inserted in a newspaper iniblished in each language respectively in the district where the court is held ; and in default of either of such newspapers in such district, then it is inserted in a similar newspaper of the nearest locality ; and such newspapers are indicated in- the order by the court or judge, or the prothonotary. C. S. L. C. c. 83, ss. 58, 61, C. P. C. 69, 73. 35 Vic. c. 6, (Que.) : 2. The first paragraph of Article Ch is amended so as to read as fol- lows : "If the defendant has left his domicile in Lower Canada, or has never had any such domicile, but has property therein, the court or judge, or the proth district, t\ lication oj 48Vi( •*>. Artie thereto th< " The or •ng form : Province o Histrict of W. •J.] TJie defen <»• This acl !• In an ac mode of impL ff'hitney v. Jh 2. In an ac l)e unnecessai on the curato 3- A bailiff taken the nee and serving h of Quebec, an was insufficie; of the Town but posBessinj rize the calling actio 1 would Sorel v. Newto •*• An abse ground that h merely of a l,o sion. Poirier 5. Where t default as an OF SUMMONS, ART. 68. 61 the prothonotary, upon a return stating that he cannot be found in the district, may order him to appear within two months from the last pub- lication of such order." 48 Vic. c. 23, (Que.) : C. Article 68 of the said Code of Civil Procedure is amended by adding thereto the following paragraph : " The order shall not be published at length but may be in the follow- ing form : Province of Quebec. ( j j District of ) Court. W. S., of the {rexidcnce and occupation.) Plaintiff, vg. J. I., of the {residence and occupation.) Defendant. The defendant is ordered to appear within two .months, (date) A. B., P. S. C, orC. C. C." 6. This act shall come into force on the day of its sanction. 1. In an action against the curator of an absentee's estate, the only mode of impleading the absentee is by calling him in by advertisement. ]i'hitney \. lirewHter, 'A L.G.H. i'dl. 2. In an action against the curator to an absentee to account — Held, to 1)6 unnecessary to call in the absentee by advertisement, and that service on the curator was sufficient. Murphy v. Knupp, 4 L. C. II. 94, S. C. 1853. .3. A bailiff's return on a writ of summons, setting forth that he had taken the necessary information for the puriKise of finding the defendant and serving him, and that he was informed that he had left the Province of Quebec, and had no longer aay domicile within the Village of Sorel, was insufficient, whore the writ showed that the defendant was formerly of the Town of Horel and was now absent from the Province of Quebec, but possessing real estat« in the said Town of Sorel, sufficient to autho- rize the calling in of the said defendant by means of advertisement, and the actio 1 would be dismissed on exception to the form. The Mayor, ttr., of Surel V. Newton, 3 R. L, 85)4, C. C. 1871. 4. An absentee cannot legally be summoned by advertisement on the ground that he has property in this district, when such property consists merely of a bon not produced, nor proved to be in the defendant's posses- sion. Poirier v. Lareau, 21 L. C. J. 48, Q. B. 1870. 5. Where the plaintiff obtained judgment against the defendant by default as an absentee, whereas he resided in Lower Canada, and the '>nP. •,!,'■; fl*' '.,■:■'•■ • ■ ^.:5f iy ■ ■ (■'■(- *H 62 OF SUMMONS, ABT8. 58-69. k m, wu. h:n| lift.!' rfi- If- -4 defendant brought opposition to the judgment afin d'annuller—Held, that the opposition must be maintained with costs. Arnwtrong v. Crochetiere it- Crochetiere, 1 L. C. J. 276, S. C. 1849. (\ In an action pro »ocio arising out of a partnership contracted in the island of Jersey, and having its liead office there, but carrying on its principal business and owning property in Ga8p6, the defendants who had never been domiciled in that district, were summoned through the newspapers to appear and plead therein. They did so by declinatory plea which was maintained. Ooniiet v. Robin et al,, 2 Q. L. B. 91, Q. B. 1876. 7. A creditor of a debt contracted in a foreign country may bring his action against the defendant who is an absentee in the district where such defendant had his former domicile or in the district where the defen- dant has any property. Paradis v. Cuesteau, 9 Q. L. K. 117, S. C. 1883. 60« Nevertheless, and witJumt prejudice to the mode of summons mentioned in the precedint/ article, when a defen- dant, having property in Loiver Canadu, has no longer or has never had any domicile therein, or when the cause of action arose in Lower Canada and the defendant resides in Upper Canada, thejtidge or the prothonotary upon proof of the fact by affidavit or otherwise, may grant leave to serve the writ of summons in Upper Canada, and such leave is endorsed in writing upon the writ, which may then he served by any bailif of a County Court in Upper Canada, or any literate person, either of whom makes an affidavit of service sworn to before any justice of the peace , 8. C. 1863. 2. Action was brought on a note made in Ontario by defendant's hus- band whose heir she w.s. Both parties resided in Ontario where defen dant was served personally. The declarution allet,'ed that defendant hue! real estate in the district whence the writ issued. Declinatory exception dismissed. Cmldie v. Camdy, 2 L. N. Mi), 8. C. 187!) ; Maedowild v. Mackay a- Routh, 2 L. N. 301, 8. C. R. 1871». TO. Persona imprisoned mtiy be summoned l)y )>er8onal service between the wickets. 1 Carre et Ch. p. 414, citing Eichard. 71. A summons cannot, on pain of nullity, be served in church, nor in court, nor upon a member of the legislature on the tloor of the house. Rodier on Art. 3 of tit. ii. Ord. 1667 : Papon, liv. 18, tit. 5, 20, 27 ; 1 Pig. p. 136 ; 1 Carre et Ch. p. 395 ; sed vide 1 Chitty's Arch. Practice 180. 1. Service of writ upon the clerk of the recorder's court, at his officf attached to the court, during office hours, and while he is engaged in Iiis official duties, but not d I'auilieiwe, is a valid service. Wilton v. IhliotHon, 18 L. C. J. IH'J, 8. C. 186!*. 2. Where a sale under a writ of execution was made of things be longing to the high constable of the district, in his office in the court house, and the defendant opposed on the ground that the seizure had been made within the limits of the court house, it was Iwld, that liaviiii; been made outside of the hall of the court iVnudifnce), it would not be set aside. lirunMcre v. Fauclier, U L. C. R. H7, C. C, 1864. 3. Any document may be served in any of the rooms of the court house provided the court is not sitting at the time. IIu* v. Charland, h L. N. 12, M. L. R., 1 S C. 126, S. C. 1884. 72. A summons may be served at any domicile elected by the party for such purpose. Bourgoin et al. v. Malhiot, 7 L. N. 286, S. C. 1878 1. Servic in the conti vaiid. Ovii 78. Pe in the yea 88, 88. 7, \ ^] 74. B are interes '>y birth or sively. Guyot, I Deniz. Vo. I 1- The rule c the p&rty upon 8. C. 1883. 2. A service o the plaintiff is Contra: Lemieu 3. A service ol sheriff is not dir served. His inte, ■^ Rev. de L6g. ,J Vide Post, Artf OF SUMMONS, ARTS. 72-76. 65 1. Service of prooesa at an elected domicile is good, if it be stipulated in the contract on which the euit is founded that such a service should be valid. Oviat v. McNabb, 8 Rev. de Lig. 805, K. B. 1811. 78* Persons may be summoned to appear upon any day in the year other than a Sunday or holiday. G. S. L. C, c. 88, ss. 7, 74. 74. BaiUffs cannot make services in cases in which they are interesved, nor in those which concern their relations by birth or affinity, to the degree of cousin-german inclu- sively. Guyot, Rep. Vo. Huissier, p. 588 ; 1 Pig. 109 ; Anc. Deniz. Vo. Huissier, 69 ; C. S. L. C, c. 81, s. 3 ; C. P. C. 66. 1. The rule does not apply where the relationship of the bailiff is with the imrty upon whom service is made. liazin v. Laeoutnrc, 7 L. N. 68, S. C. 1883. 2. A service of a writ of summons made by a bailiff who is related to the plaintiff is null. DeHmarUau v. Auliertin, (> L. C. .7. 88, 8. C. 1861. Contra : Lemieux v. Cott' tt Cot^, 10 L. C. R. 184, 8. C. I8.5i). 'A. A service of process tul reajMitdi'iKluni by the sheriff is good, if the nheriff is not directly interested ur concerned in the suit in which it is served. His interest must be positive, not continj^ent. Laurent v. Vallier, M Rev. de L6}?. 307, K. B. 1820. Vide Post, Art. J6«. 75. In ordinary cases the delay upon summons is ten intermediate days between the day of service and the day fixed for the appearance, when the distance from the domi- cile of the defendant to the place where the court is held does not exceed live leagues. In demands by reason of usurpation of office, and in those for writs of mandamus, of prohibition, and of scire facias the delay is three days. In suits between lessors and lessees the delay upon sum- mons is one day only. 5 F.C.C.P. i^iM'f u I ■r'i;.'^^|'''i ■ «:-v^. ^■•j,r ii\ i-;i'N 3W' M OF SUMMONS, ARTS. 75-78. m '&'' 1 m w I'iii' «■ ^■'^.'' 1 ■k f'! ;lif H^,*, If' ill ' i W '&■ iif:;.- ^vi;?. 1 ■M'.: When the distance exceeds five leagues the delay is in- creAkjed one day for each additional five leagues. C. S. L. C. c. 83, s. 8 ; c. 8H, s. 1, § 2 ; c. 40, s. 10, C.P. C. 72. I. Held, reversing the judgment of the court bolow, (11 L. C. J. 138), that when a defeiulajit is personally wrved at a place other than hiH domicile, the delay is computed accordin^j to the distance from tho place of such eervice to the place where the court is hold, and not according to the distance from his domicile. Smith v. Dimorun, U» L. C. .1. XMi, Q. H. 1875, »V 14 L. C. J. 2'i'2, 8. C. R. 1870. Currhr v. Lafrnnee, l.H L. C. J, H29, 8. C. R. 186«J. Dudevoir v. Arehamhault, 12 R. L. «4o, 8. C*. 1882. 2. Where a Superior Court writ wuh served on the defendant at his domicile, whicli was 102 miles from tho court house, on the fourth, and was returned on the fifteenth — Hild, on exception, that the delay be tween the service and the return of tho writ was sufficient, and that there must be live full leagues, over and above the first live leagues, to entitle the defendant to additional delay. I'uu' n v. Wurtele, 3 K. L. 453, Q, U. 1871. PouUn V. Plant,-, 3 Rev. do L*g. .S07, K. B. 1811>. Vide Post : Art. 890, as to summons in suits between lessors and lea- sees, and Arts. 1000, 1017, for summons in cases against corporations illegally formed and of usurpation of office. 70. Writs of siiraraons must be returned into the office of the clerk of the court on or before the day fixed. C. S. L. C. c. 83, s. 9. 77. The writ must l>e accompanied with a return or cer- tificate of service. Ord. 1607, tit. 2, Arts. 1, 2. 7W. Such return of service, if made by a bailiff, must state : 1. His names, hi.s residence, and the district for which he is ai^pointed ; 2. The day and hour of service ; 3. The place where and the person with whom a copy of the writ was left ; 4. The distance from the bailifT's residence to the placi- of service ; ^' The c ^o^Jiciie, 6- The a If the ret "'inie stateir *^^f first par, Ord. 1067. 201-2. *• A bailiff -y , '■"•"■"'•'"•'■ iH suftic "P' 7 h. C. J. i( ^- A bailiff ia «i '-'''"'■«^«- I^eguire J- A^'ailiffcann i^^-^'" residence i. f*. C. ^- A bailiff ca„„o. '''«°,'-'»-We«,,,..,^° ;;;'-•; the same ma. ''■ ' • ^- =^=^- (• C. J ■"'• ■) b«i'«ff .8 enti p'7"^ "'ne and effe J ^7''"'" 'rom his dom 'V^'"' "'"-Vic, of hI L'IVl.l(,,,t. bv„ I •. ' i"-' o> a bailiff vd '■ """"•'■'. ill «„, J 'C'l'V of Hw. "I'l'eji ,/• V "'•■'» a»d aj "'■• "'"J '-^ L. C. K. 481 t:<", _ O-* SrMMONS, ART. 78. ^ ^- ^"e amount of the coHf««/ • If *i t-osts of service *!«■ h.Bt paragrapl,. "^^'Pt'on ol what is mentioned in !■ A bailiff's return of H "«« i" the Han. nC. r1 ' '"" " '"^^-'-blo. no "a^ ^^''f "- »« tl>e ''"t.v being in tl.e fir , ' '""'^^'''^ '»°"«y levied uZ "^"""^^ "''«• •'• A bailiff i^ entiti \ ♦'• The Hervice of a writ t ^'"vol,.,.e, by u bailiff who is i'l ""'"'"""" ^° "'« defendant i„ "-"«uient and illegal 7 «"™t of the contentn of lucb I ", "'"'"'^ I! < ' ^'•' if,'. I If fclilf ' f I t. w 'irt T) 'l!l ■ ' ni ,1 ;;f - ' ' r i "; 11 111 ''at m OF SUMMONS, ARTS. 78«70. 8. The omiuion in theiheriff't r«tarn of the ooanty or parish in which the proceaa f tho Superior Court "for the Circuit of Quebec"— //cW, not t'j vitixtethe return. McCallum v. Pozer, 1 L. C. R. 40, 8. C. 1«60. 14. Where the defendant ia described aa bein^' of the City of Quebec, and aervice ia alleged to have been made at hia domicile, Quebec, sucli mention ia a sufficient indication that the City of Quebec ia intended. The omission to atate the distance from the bailiff's resideiK e to tht' place of service, and from the Court House to the defendant's doniiciiti, or place of service, does not invalidate the return. Heam v. Molonif, H Q. L. R. 339. Q. li. 1877. 15. A bailiff appointed for Terrebonne and snbBe. TJlOollJy l>Biliff iii;o^,e,i t '•'> I- C. K. 37, ♦'• A iwiiiff'H will l>o held con H. ('. lN(i;-,. 7. The returii '*''riptioii i„ j,„j| **• A Uiiiff-H iiiiprobHtion, un| '7 i'- C. ,F. l;s, !'• A l)ailiff'H i] HiimnniryiHjtitiol Hiid by such |)eti| ">< falMe. hut that witli ccstH itra\ Jf. And I, fid, ^I- A bailiff'sl Iriuli s. Ilr„me, I I-'. A sheriff's "" motion withrj ' 12«. 8. C. I86f. ^ Art. 15'J {': OF BUMMONB, ART. 79. 60 that effect by the ^I tintiff, urilur proof upon Huoh demurrer, without any inscription fnjmtx, Chiirlton v. Carey, i\ L. C. It. 'i«W 8. C. 186«. '2. NutwitliHtiinilink; C C. l>. < .) uiid IRI), the truth of a bailifT'H return of HiTvioi' of Hunimon umy ho attacki-tl liy exception to the form. The Sliimlaril fire tun. Co. v. Howl, 7 27 L. C. .F. ai»«, Q. l\. IHH.H. .H. Tlie hailifT'M rutiirn inny becontosteci by exception to the form, where the coiiciuHionB pray for Umve to oontent. Howley v. Thf Standard Inn. Co., (1 L. N. .Hr»», g. n. ihwi. I. lt\ n\\ notion in ri'tniU lijinaiifr on an exception by the defendant — //('/'/, that the oiniHHion to Htate in plaintiff'H return of nervice the resi- ilonce or domicile of tlie bailiff or of the [lerHonH accompanying him aa ni'oi-M waM fatal to the deniaiid, and hucIi oiniHHiouH nii^ht be pleaded in Hucli KctioiiH by a plea an I'oiidH, ami not merely by preliminary exception. hanxrr.an v. Collrtt,; .1 L. C. ,]. 71. Q. H. 1««7. f). The oidy way evidence can his admitted to imiteach the return of a liuiliff liile^'ed to l>e falHC iH by an iuHcription en faux. Mcl.imunt v. Hohin, ir, L.C. K. .H7, S.C. 1H«U. t'l. A bailifT'H return remaining unimiMjached by testimony of record, will bo held conduHive. Mo,>h et at. v. Uohh <(• liom d- .Monk, \t L. C. J. 32H, K. V. IHH.-). 7. The return of a bailifT can oidy ))c contested and set aside on an in Hiription in improbation Thi' TruHt d- Loan Ctnnininy of Upper Canada v. Mi-Kay, it L. V. K. IC..'), Q. H. iH.'iU. H. A bailifT'H return of nervicc may bo contested on motion without iiuprobation, uuIohh the «u)urt otherwise orders. .MiMillan v. Uuchanan, 17 L. C. .1. IH. Q 1». 1H7S. *.). A bailifT'H return made imder his oath of oftico may bo contested by Humnuiry iHstition without improbation, unless the court otherwise orders, Hiid by such {Kstition one may pray, not only that the roturn be set aside Hs false, but that the action of which it is the return may be dismissed with costs. ItroxMan v. .AU;» d- David, 17 L. C, J. 228, 8. C. 187.S. 1(1. And held, also, that contestation may be joined on sucb peti- tion. //). 11. A bailiff's return cannot be attacked by exception to the form. /nW( V. Ilrome, 1 L. C. L. .1. Ill, S. C. 1865. I'J. A sheriff's return of service of a writ of summons may be contested on motion without improbation. Hudon et al. v. Solman et al., 12 L. C. M2(), 8. C. 1868. Sm Art. 15i 4| ;i m m f.-r ' • II' m w"' ■' -' m 70 OP SUMMONS — OF THE RETURN, ARTS. 80-81. 80. The court may grant leave to amend any error in the return. 1. In an action of misie gagerie par droit de tuite, on an exception to the form — Held, reversing the judgment of the court below, on the motion of the sheriff himself, that he might be allowed to amend his return on a writ in the cause, and that he was competent to make such motion him- self. ZloUon et al. v. Burrouglu, 3 L. C, J. 220 & 9 L. C. R. 217, Q. B. 1859. 2. But where the bailiff moved to be allowed to amend his return of service of a writ after inscription in improbation had been filed against it, the motion was rejected with costs. Hohhs v. Seymour, 7 L. C. J. 46 A- 13 L. C. R. 76, 8. C. 1862. 3. But subsequently, on a petition to the same effect — Held, that, though the bailiff could not come into the case by motion, the court might, nevertheless, grant the petition on payment of all costs occasioned by the error. Ih, 4. A bailiff's return may be amended on motion of the advocate inter- ested, but, as the bailiff himself only can amend it, the notice should he. simpjy that he be authorized to do so. Bowie v. Kelly, 4 R. L. 389. S. C. 1872. 5. A bailiff's return may be amended on verbal testimony. Richard, 1 Legal News 130, Q. B. 1878. liickell V. CHAPTER SECOND. OF THE RETURN. SI. Every writ of summons, and every writ of capias or attachment, must be filed in the office of the clerk, on or before the dayou which the defendant is therein summoned to appear, or upon the next following juridical day, in tlu' case of article 3. C. S. L. C. c. 83, ss. 5, 9. 1. The failure on the part of the plaintiff to pay the entrance fee on the day of return of a writ does not vitiate the return. I.ee it al. v. Kiii.< manet al., 14 L. C. R. 156, S. C. 1803. 2. The re where it sho 12th, the act aware of the 24 L. C. J. 1. 3. Thewri return-day if Q- L. R. 208, «2. [If vided, the i against the costs, upon C. S. L. C. 1. To obtain tion diligently, 2. CoiKjJ.dJfa writ on the d 1880. 3. Defendant the return. Co 4. On motioi 15 L. C. J. 82. 5. On a moti Sifn^-nl it- Gouin\ C. J. 218. 8. C. 6. CimtjMt'i'inl d- SJr/, 21 L. C. 7. And on a ('-, (• 83, s. !) OP APPEARANCE, ARTS. 81-83. 71 2. The register of a court cannot be contradicted by affidavits, and where it showed the return to have been made on the 13th, instead of the 12th, the action would be dismissed but without costs, as defendant was aware of the irregularity in time to avail himself thereof. lioss v. Marceaii, 24 L. C. J. 143, 2 L. N. 310, 10 R. L. 143, Q. B, 187(>. 3. The writ may be returned after four o'clock in the afternooon of the return-day if the prothonotary's office is then open.* Heriina v. Garo7i, 9 Q. L. R. 208, S. C. 1883. H2. [If the writ is not returned, as hereinabove pro- vided, the defendant may obtain the benefit of a default against the plaintiff, and be discharged from the suit, with costs, upon filing the copy of the writ served upon him.l C. S. L. C. c. 83, 88. 66, 189, § 4 ; C. P. C. 154. 1. To obtain comje-d^faxit with costs, defendant must make his applica- tion diligently. Siegert et nl. v. HartUmt et al., A L. N. 847, S. C. 1880. 2. Cong^-dJfaut can be obtained only upon returning the copy of the writ on the day of return. Cherrnr v. Forcapel, 6 Q. L. R. 377, C. C. 1880. 3. Defendant should, when filing hia copy of the writ, pay the costs of the return. Coady v. Fraxfr, « Q. L. R. 384, S. C. 1880. 4. On motion the court will accord coni d- SM, '21 L. C. J. 206. S. C. 1877. 7. And on a motion. Grant v. r.drojV, 3 L. N. 392, Q. B. 1880. V. I ! !• 1 I c»^ 1 » SECTION I. OF .VPPEARANCE. HS. The defendant, when duly summoned, must appear, either in person or by attorney, and must file a written appearance in the oftice of the clerk of the court, on the day fixed, or on the next following juridical day. C. S. L. C, c 83, 8. 9 ; 22 Vic. c. 5, s. 31 ; C. P. C. 149^ 72 OP ELECTION OF DOMICILE, ARTS. 83-84. ■■|1 ■a- i ■ ■■ < Mr;' ■ M pi • ,''.■■<■ Hi' '.s I>:" ;*'■: '« II 1. Where two defendants have appeared separately, but by the same attorney, they may, nevertheless, join in their defence and file the same pleas. Arsenault v. liomxeav et al., 3 R. L. 28, 8. C. 1871. 2. When an action had been taken by a firm of two attorneys as of record, but the return was signed by one of them only, while the other appeared for the defence, and confessed judgment — Held, on motion to set aside the judgment, that the fact of the same attorney appearing for both plaintiff and defendant was not such an irregularity as would involve an absolute nullity in the proceedings. Mohon ft , c. ]Hr,7. '*■ In an actiJ tlu' iuithorizati judgment of (jol f'rmich law wa] wlien pleading only arise betwJ The Corp(,ration\ 3. Where tht bound to have »•"■• v. Ilatex et J 4. Where a bj the Jirothonotar OF ELECTION OF D02IICILE, ARTB. 84-85. 78 Whenever one of the parties has, since the commence- ment of the suit, left Lower Canada, or has no domicile therein, all orders, rules, notices or other proceedings, may be served upon him at the prothonotary's office, as being his legal domicile, provided the 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 Lower Canada. C. S. L. C. c. 83, s. 64. feee 33 Vic. c. 17, s. 1 (Que.), ante Art. 48. HS' 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 subse- quent change thereof, registered in the prothonotary's office, iu the register kept for that purpose. In default of making such election of domicile, or of registering the same or any change thereof, such attorneys are held to have elected domicile at the prothonotary's office, where all services upon them may be validly made. C. S. L. C. c. 83, ss. 11, 04 ; Rules of Practice, 2, 87. J: yii U'^ 1. Where the baihff had made his return of service of a {)etition for Hi'peal to the Circuit (^ourt, stating; that he had served it upon the attoinevB of the resiiondent, by leaving a copy with the clerk of the court, omitting to state that tlie said attorneys had no domicile within tlif limits allowed by \u,w—Hcld, to be null, on the f^round of such omis- sion, and the jwtition was dismissed, (iroom v. Voucher, 2 L. C. .1. (YJ, S. C. i^ru. 2. In an action a<;ainst a corporation, where the (juestion arose as to the authorization of the attorney of the defendants — I]el': ■I': ■! il ^i. ^^ V ■f^'-; jiiii : "(' ■■'i ^k| ! [^ It P^ •i ■I ife' IIbI'' •*■ '^ii if^Kil 1^ i 74 OF NON-APPEARANCE, ARTS. 86-87. { - M fiH ,m m t\r ti'' >4 J'. ir service speaking to the prothonotary, the service was held to be null. Molleur v. Marchand <£ The Attorney-General, 5 R. L. S79, S. C. 1874. 5. A defendant has no right to except to or deny the right of the plaintiff's attorney to bring the action. Leary et rir. v. Plamondon et al., 17 L. C. J. 75, S. C. 1870. 6. Personal service upon the attorney ad litem who resides in another district, is good though he have an elected domicile where service could be made, in the district where the action was pending. McCallum v. Harwood et al., 22 L. C. J. 279, S. C. 1878. 7. Advocates, etc., are bound to have some one present at their domicile- elect during office hours, and in default thereof, service may be made at the court house. Aimbault v. Eaten, 13 L. C. J. 139. 8. An attorney who appeared in a case for a defendant upon whom process had not been regularly served, and who denies that he employed such attorney, is bound to show that he was authorized to appear before he can recover costs. Disavowal in such a case is unnecessary. Felton V. Ashe:^tQi> Packhiff Co., 7 Q. L. R. 265, S. C R. 1880. See Robertfon v. JJarlow, 2 L. N. 181, S. C. 1879, and art. 402, post. SECTION III. OF NON-APPEARANCE. HSm If the defemlaut does not appear within the delays prescribed, the prothonotary, on the next following juridical day, must enter a default against him, and the plaintiff, upon obtaining a certificate of such entry, may proceed to judgment ex parte. C. S. L. C. c. 83, ss. 9, 189, 196 ; 22 Vic. c. 5, s. 31 ; C. P. C. 149. 1. A defendant who does not appear admits, by default, the character in which he is sued. Auld v. Milne, A Rev. de Leg 351, K. B., and 2 Rev. de L6g. 333, K. B., 1819. H7» Notwithstanding the entry of such default, the de- fendant may, at any time before judgment, upon special application and sufficient cause shown, be relieved from it, upon such conditions as the Court may think proper to impos*^. C. S. L. C. c. 83, s. 10. OF JUDGMENT BY DEFAULT, ARTS. 88-89. 7« HH, This application must be served upon the plaintiff at least one clear day before it is presented. Ibid. 1. A judge in chambers has power on petition to set aside a default entered against the defendant. The "one clear day" mentioned in Art. 88, must be a juridical day. Crebassa v. Ethier, 2 B. L. 3B2, S. C. 1870. 2. Where the defendant had made default — Held, that he could not havr the default set aside for the purpose of obtaining peremption of the instance. CourviUe v. Levar i& Levar, 6 L. C. J. 256, S. C. 18(>2. S. Where default has been entered in an action and judgment pro- nounced ex parte during term, such judgment and default may be set aside, and defendant allowed to appear and plead, on motion to that effect, supported by an aflBdavit that it was through error or neglect on the part of the defendant's attorney that an appearance and plea had not been filed. Derepentiffuy v. Doherty, 7 L. C. J. 287, S. C. 1863. 4. Where, in an action on a capias, the defendant had failed to appear, owing to an accident, his instructions to appear not being communicated to his attorney until after default was entered, he was allowed, on motion, supported by affidavit, to appear and plead to the action, on payment of fifty shillings costs, lirixgon v. McQueen, 7 L. C. J. 70, S. C. 1H62. 5. Where the defendant, five months after the service of the action, moved to be allowed to appear and plead — Held, that, as the action was one of damages, he would be allowed to do so on paying full costs of the action. Hayden v. Fitz>timmon*, 1 L. C. J. 1), S. C. 1856. 6. The Court will set aside a default and dismiss the action, if it ap- pears on the dJlih^r^ or at the hearing that the default has not been regularly obtained, and the defendant has r.'n. been regularly summoned. Shepherd v. Tonnancour, 3 Rev. de L*g. 350, K. B. 1818. SECTION IV. OF JUDGMENT BY DEFAULT FOR NOR-APPEARANCE. H9« If, in any action founded upon a bill of exchange, promissory note, cedtde, cheque, act or private writing, the defendant fails to appear or to plead, judgment may be rendered out of term, upon the written application of the 76 OF JUDGMENT BY DEFAULT, ABT8. 89-91. §^-:n. n m plaintiff, without its being necessan' to prove the signatures to such documents lor to make any other proof . C.S.L.C. c. 83, ss. 86. 113. 47 Vict. c. 8, (Que.) (). Articles 8!t, !)0, }>1, 5)2 and !IH of tlie said Code in so tar as concerns the powers of prothonotaries and clerks of roiidirinf^ judfjnient in vaca- tion upon the plaintiff's affidavit, in tli« case therein mentioned, are hereby declared never to have been affected by section 1 of the Act H> Victoria, chap. 2(}, nor shall tlioy be affected by section 2 of this Act. This section shall not affect pendinj* cases. 1. In an action founded upon a detailed account, the Cci/r/ cannot fjive jucianient ex parte upon plaintiff's affidavit only, in the absence of other proof. Plaiite v C.nri.rr, .') Q. L. R. H.-iO, S. C 1H7!». 2. When a defendant has appeared and has been foreclosed from plead ing, it is not necessary that plaintiff should tjive him notice of an inscription for judgment out of term. Dalhtr v. Duikis it nl., 2't L. C. .]. 244, S. C. R. 1879. 90. Judgment may be rendered in the same manner when the action is founded upon an authentic document. Ibid., s. 113. 1. Where a defendant has not appeared and default has been entered, a motion to proceed es parte is not necessary. Kerxhair v. Ihlixli it nl., I L. C. R. 4i»4, S. C. 1851. 2. Where, in an action against partners on a promissory note, the defendants have failed to plead, judgment nuiy be rendered without the necessity of proof. Foley et al. v. Forrester, li\ h. C. R. 4ll, Q. H. lH(i(). ttl. In actions founded u^wn verbal agreements to pay specific sums of money, or upon detailed accounts, or for goods sold and delivered, or for money lent, judgment may likewise be rendered forthwith, upon production together with the inscription for judgment, of an affidavit of the plaintiff or one of the plaintiffs, or of any other credible person, whether competent or not to be a witness in the case, duly Commissii to the kn due by the 47 Vic. ( 6. Article i both in the S the prothono upon the plai Affidai Lower District {or A. B., ol this cause, sum of defendant ir {or plaintiffs mande ment hath declare required). Sworn be 18 Si ff nut lire tniasioner. OF JUDGMENT BY DEFAULT, ART. 91. f^ case, duly made before a judge, or the prothonotary, or a Commissioner of the Superior Court, and establishing that, to the knowledge of the deponent, the amount claimed is due by the defendant to the plainti£f> Ibid. 47 Vic. c. 8, (Que.) : 5. Article 91 of the said Code is amended, so that in future the judge both in the Superior and Circuit Courts, shall have the same power as the prothonotariea and clerks respecting; the rendering of judgments upon the plaintiff's affidavit in the cases specified in the said article. '; \M ;•)'■',, :'n|!;fi mm FORM No. «8. In connection with the Article 91. Affidavit of the Plaintijf {or one of the Plaintiffs). DiBtrttT.' ")• of 1 IntheS-Perior (orCircuit) Court. A. B., Plaintitf, I's. C. D., Defendant. A. B., of ,the plaintiff (or one of the plaintiffs) in this cause, being duly sworn, doth depose and say. that the sum of , being the amount demanded of the defendant in this cause, is justly due by him to the plaintiff {or plaintiffs) therein, for the causes in his {or their) de- mande mentioned : and the said deponent hath signed {or hath declared himself unable to sign, being thereunto duly required). Sirjnature, Sworn before me, at 18 . , thin A. B. day of J. S. P. Signature of the Judge, Prothonotary, Cleric or Com- niiasioner. 78 OP JUDGMENT BY DEFAULT, ART. 91. 'i u O' FORM No. 2». In connection with Article 91. Affidavit of a person other than a plaintijf. Lower Canada, ) District {or Circuit) of ) In the Superior {or Circuit)Court. A. B., Plaintiff, V8. C. D., Defendant. E. F., of , being duly sworn, doth depose and say, that to his personal knowledge, the sum of being the whole {or part, as the case may he) of the amount de- manded of the defendant in this cause, is justly due by him to the plaintiff {or plaintiffs) for the causes in his {or their) demande mentioned ; and the said deponent hath signed, {or hath declared himself unable to sign, being* thereunto duly required.) Sufnatiire, A. B. , this day of KH' Sworn before me, at 18 J. S. P. Signature of the Judi/e, Prothonotary, Clerk or Commis- sioner. ' i 1. The affidavit on which judgment by default i8 granted by the clerk of the court is equivalent to the deposition of a witness in court, and holds the place of proof by eiKju4te. If Amour et al. v. liourdoii, 17 L. C. J. 85, C. C. 1H73. 2. In a case brought under the Lessor and Lessee Act in which judg- ment had been rendered by default — Hild, on opposition and !ipjH.'al, that the deputy prothonotary had po.ver to render such judf^niei'.l by default in vacation and in tlie absence of the jud(4e. Wagijoner v. Jiickervt al. 13L. C. R. 102, Q. B. 18(52. 3. An action for professional fees and disbursements in a case of which the number and the title are fjiven, unaccompanied, either at the time of tlie service or at the time of the return, by any account or details, is not an action /ouH"tK, it would not coiue under the turiuH nf the article, and the clerk of thv irt would have no rij^ht to render a jud>,'ment forthwith therein upon production of un iitttdavit. l.uii(iliii^ V. .S7. I'ienr rt «/., il Q. L. R. <.>o, H. C. R. 1H83. Wim In every such case, the prothonotary iu vacation, upon the case being inscribed for judgment, draws up a judgment in the name of the court, conformably to the de- mand and to the amount which appears to be due ; and such judgment is held to be the judgment of the Court, and is recorded accordingly. No siu'hjtuhjinent can, however, be rendered or recorded (Kjainst any absentee defendant, who has been summoned as such. Ibid. 88. 113, 127. 48 Vic. c. 20, (Que.) : 5. Article '.)2 of the said Code ia amended by striking out the laat paragraph thereof. 47 Vic. c. 8, (Que.) : 7 Article 1)2 of the said Code ia hereby amended by adding the words "or in term" after the words 'the protbonolary in vacation." US. The plaintitf may, at any time before executing such judgment, renounce the same, and upon filing with the pro- thonotary his renunciation in writing, he may proceed in the ordinary form, in the same manner as if it had not been rendered ; he must however bear the costs of such judgment. Ibid. s. 126. BKCTION V. OF CONFESEION OF JUDGMENT. !>4. The defendant may, at any stage of the proceedings, file, or cause to be taken down in writing at the prothono- tary's office, a confession of judgment lor the whole or any part of the demand. 80 OF CONFESSION OF JUDOMENT, ARTS. 94-97. The confession must be signed by the defendant, or be made by his special attorney, whose power of attorney, in authentic form, must be filed with such confession. 25 Vic. c. 10, H. 10. 1. Action was taken against the members of a dissolved partnership on a promissory note, and one of the defendants confessed judgment for both jointly and severally — Held, that a partner after dissolution could not confess judgment in an action brought against the late partnership, and judgment entered upon such confession woald be set aside on opposition. The Canada Lead Mine Company v. Walker et al. (t Steiven, 11 L. C. R. 488, S. C. 1861. 2. A confession of judgment to which the defendant has set his crosH, countersigned by his attorney ad litem, is invalid and insufflcient, as the defendant must attach his signature to the oonfesnion, and, if unable to sign, the confession must be made by means of u notarial instrument. McKemie v. Jolin, 5 L. C. R. 64, H. C. 1855. 8. A confession of judgment on a note not duly stumped does not avail the party in whose favour ii is made. Dui'rei,nc v. Duple»»i» it al,, 5 g. L. R. 381>, 8. C. R. 1879. 05. [If the person who appears as defendant in order to confess judgment, is unknown to the prothonntary, the lat- ter must require him to produce the copy of the summons, or to procure the counter-sip i^ature of an attorney-at-law.j 06* If the plaintiff accepts such confession, he may in- scribe the case forthwith for judgment, and the prothono- tary draws up, in conformity with such confession, a judg- ment, which is held to be the judgment of the court, and is recorded and executed accordingly. The judgment thus drawn up need not mention the presence of a judge, but it must contain a recital of the confession, as it was given, and of the inscription by the plaintiff, and, lastly, the condemnation in the name of the court against the defendant. Ihid. 07. If the confession of judgment is not accepted, the plaintiff must give the defendant notice to that effect, and after such notice the case is proceeded with in the ordinary course ; e court thai not entith accepted ; dant what 1 The del dered the sai for a larger plaintiff's dei testation fro 28;i, H. C. 18/ 2. But who acknowlodgod to plaintiff th to pay the n L. C. J. '2m, i ii. An admit companied by defondant to for more than prayer in snoh an iuicontortto( 287. H. C. R. 1 »«. [Ift some only (I proceed ui)oj have acknovj continue tlit u ' »». The writ, file in which he hi with a list XI., Art. 6. 6 Iff-j.'. fm OF THE FILINO OF EXHIBITS, A ll|».#-99. 81 oourHc ; and if the plaintiff does not obtain more from th* court than he would have had upon the confession, he is not untitled to more costs than if the confession had been accepted ; saving the power of the court to grant the defen- dant whatever costs of contestation it may think proper. 1. The (lofendant admitted a part of the amount claimed, and ten- dered tliu Htime with hiH plea. After oontOMtatiun judgment was rendered for a larger hmhi than that tendered, but not for the full amount of plaintitT'u demand — Held, that the plaintiff must pay the costs of con- testation from the time of tiling the plea. lioutli v. Domjall, '2 L. C. J. 'iSiJ, 8. C. 1858. 2. But where the defendant had not tendered the amount which he acknowlod^jed to bo duo, althoaf{ii the court awarded no larger amount to plaintiff than that admitted by defendant, the latter was condemned to pay the necessary costs of action McFurlaiw v. liixldeii et al., 2 L. C. J. 28(1, H. C. l«r.4. H. An admission in a plea of a portion of plaintiff's demand, unac- companied by an actual confession of jud^'ment, will not entitle the defendant to the costs in case the plaintitT does not obtain judgment for more than the amount admitted, and under any circumstances a prayer in siiol) plea that the defendant Ixs condemned to pay costs as in an uiicontostod case oidy, is irrot^ular. Lutliuiii v. Martin, 18 L. 0. J. 287, S. C. R. 1874. UH, [If th«^re are Heveriil defendants in the same suit, some only of whom confess judgment, the plaintiff may proceed upon such confession to recover against those who have acknowledged their indebtedness, saving his right to continue the suit against the others. HKCTION VI. OF THK FILINU OF EXHIBITS. 99, The plaintiff must, at the time that he returns the writ, file in the prothonotary's office the written proofs which he has alleged in support of his demand, together with a list or inventory of such exhibits. Ord. 1667, tit. XI., Art. 6. F.C.C.'^. m- :.»' ^ ■ ■pi;: ■ M fm ! m m^}' ' 1 ' t •' H" ' , ■/■ ^m •'■'1 ■ '' ■.,' ^K''i y m i;' r f OF THE FILINO OF EXHIBITS, ART. 09. 1. A party to a case may at any time |)ro(1uco and Hie at eii(iu4tc, without notice to tlie adverso party, papurH and doctimontB not proved, provided they appear to bear on the case, and t)ie materiality of Hiich docunienta will be adjudicated upon at the flnal hearing. MUh v. Thi (iranby lied Slate Conipaiii), 13 L. C. J. iil«, S. C. lH«i!». 2. No papers can be filed or produced in evidence after the eixjudtc is closed. If a party intendH therefore to Interrogate hlu opponent on receiptH or other papers, he must file them before he moves for leave to examine on /aits ft nrticlfn. Hijan v. Chapprrx, 8 llev. do L6g. H'lH, K. B. 1821. 8. Exhibits offered at the enqulte before a jury lire by law referred to the consideration of the jury and not to the conHideration of the court, and upon writ of error are not to be Hunt up to tin- Court of Appealn. Flower ft ul v. Dunn, 3 Rev. do L6j,'. 8r.;j, K. H. 1H20. 4. Exhibits produced at the emiu^Ste, or filed before, may be detained and impugned if there be cause to doubt their authenticity. AlUn v. Ilani», 8 Rev. de L6g. 358, K. B. IHll. 5. Where a copy of a notarial act filed as an exhibit had been mis- laid — Held, that the court would permit another copy to be filed. Osgood v. Lelierre, 3 Rev. de L*g. 353, K. B. IHIH. (i. Where in the declaration of certain garnishees they referred to cer- tain documents— //«'/(/, on motion of plaintil'f that they would bertujuired to file such documents at their own expense, as exhibits in support of their declaration. Forsyth v. The Camulu liujitist Missionary Society d- Leminy et, «/., 2 L. C, J. 1«7, S. C. 18.V2. 7. Where the defendant objected to the sufliciency of an exhibit, and moved to reject it from the record —Held, that the proper recourse was to demand delay to plead, until a sufficient exhibit had been filed. Strother V. Torrance, 1 L. C. J. 83, S. C. 1857. 8. Where the plaintiff had inscribed cti fnuj- iitjainst a notarial receipt, the defendant notified the notary to produce his iniiiutu of thedocunifut. and the minute being produced, the plaintiff moved that a list be filed of such exhibit by the defendant before he ho conipellod to proceed with his moyens de faux, the motion was granted with costs. Moniiii et rir v. Leonard, 2 L. C. J. 13f;, S. C. 185!). 9. Motion was made by the defendant to reject from the record certain exhibits which were filed with the articulation of facts as having been filed too late — Held, that the 7»ith sec. of the Judicature Act of 1857 had virtually rei^ealed the 24th Rule of Practice, re(juiring the filing of ex- hibits with the declaration, and the motion was rejected. Denin v. Craw- ford, 4 L. C. J. 147, S. C, 18(i0. h OF THE FILING OF EXHIBITS, ART. 99. Ml 10. Copies of old plana produced by a party in uupport of his preton- HionH will be oonaidered aa exhibita, and taxed aa auoh. Iirown\. Ougy, 12 L. C. R. 413, 8. C. 1802. 11. Ati lulmiBsion by dofendant'a attorney of the existence of a will refi-rrcii to in plaintiff's declaration, and the consent that an authentic copy t)\eroof should be considered tiled in the cause as plaintiff's exhibit No. I, iM null and void and of no effect. Ilyne* v. Lennon ct al, e» qual, 12 L. C. J. r,H and 4 L. C, L. J. «1, 8. C. 18«7, 12. Where exhiLits were Alud on the return of the action which were not mentioned in the declaration, and the defendant made motion at the liciirinK on the merits to have them rejoctod from the record — HeM, that, even if thoy were not regularly produced, the motion to reject them was too late. Chevrejilii v. Leu Sijndieii dc la I'aroiKne de Ste. llJlinf, 2 R. L. 161, H. C. 1809. 18. Exhibits Hied in one case cannot bo transferred to another without special permission from the court. Aimbault, et vir v. Dunlop, 18 L. C. J. 140. H. C. 1H(\\). See helly v. Fruiter, 2 L. C. R. .S«)8, under Art. 718, post. 11, Where a party opi>OHant has omitted to file his titles with his oppo- sition, he will not be allowed to file them afterwards at the cnciu^te. Miijor et (il. V. liahy iV Selhy, 4 L. C. R. 12(5, 8. C. 1851. 1.5. Whc.e in an opimsition allo^'in^' payment, if the plaintiff have coiitoHted the opi)OHition without ru(iuirin^ the prmluction of the exhibita rulied on, the opiiowint may produce them at the enquCte if necessary by piiyiiif^ any costn which may result therefrom. Dawiton v. DeiifoKneii, R, L. :W4, Q. H. 1874. II). In an action on an account it is not necessary to serve a copy of the iiucountwith thu action, it l)l■ill^; nufiicient to produce such copy when the action ia returned into court. Moffat en nuul. v. Ouimette, R. L. 744, C. C. I87S. 17. A plaintiff who fails to file with his declaration the exhibits alleged ill support of his demand, may do ho afterwards and so long as the j)Osi- til i; of the parties remains unchanged without leave of court, provided luitice bo given the opposite party. If the exhibits which ought to be tiled witli any pleading sub8e({uent to the declaration are not so filed, tLfV cannot afterwards be produced without the consent of the opposite party or leave of the court. If an instrument recited in a pleading w.as lost or destroyed before the date of such pleading, the loss or destruction ou^iit to bo alleged. HuHniere v. Uaboury, 7 Q. L. R. 51, 8. C. 1881. IS. The only object of C. C. P. 99, 103, and 106, is to enable defendant to plead, and ho cannot, after he has pleaded, invoke these articles in order to have an exhibit rejected which the plaintiff produced at enqu^Ste. FilioH v. Corriveau, 7 Q. L. R. 60, 8. C. 1880. il#:'' Iff'*'" - V . I' m \ \ 84 OF THE FILING OF EXHIBITS, ARTS. 100-104. 'F, m M I 100. If the exhibits are private writings, or notarial originals, the party may retain them until the articulation of facts, provided he files copy thereof, certified by him or by his attorney. Bell v. Knowlton, Montreal, March, 1865, 24 E. of Practice. 101. Exhibits filed cannot be taken out of the ofiice, unless the opposite party consents and a receipt is given. C. P. C. 189. 102. [Any person in possession of a document filed and forming part of a record, or having taken or received it, may, upon motion, be coerced by imprisonment to return the same, without prejudice to his liability for damages.] C. P. C. 107. 1. On a rule against the prothonotary or clerk of the court for con- tempt because of the non-production of a record, the parties will be ordered to purge themselves of all knowledge in the matter. Morgan v. Valoh, 9 L. C. J. K59, C. C. 1865. 103. Until the exhibits have been filed, in the manner hereinbefore prescribed, the plaintiff cannot proceed with his demand. Ord. 1667, tit. xi., Art. 33, C. P. L. 321 ; 11 Q. L. K. 72. 1. An action on a promissory note which is not tiled will be dismissed. Hudon V. Ginmard, 21 L. C. J. l'>, Q. B., 1 Legal News, 212. See post Art. 141, and Fonter v. Chamberlin, 2 L. C. J. 286, under Art. 2<)9, post. 2. Art. 103 is incompatible with the Rule of Practice vii. of the Circuit Court, and the latter is therefore obsolete. Jiclanger v. Cluilij'mu:, y R. L. 447, C. C. 1878. 104. Every exhibit filed in a cause becomes common to all the parties to the suit, and they may obtain copies there- of from the prothonotary so long as it remains in his hands. Serpillon sur tit. xi.. Art. 16, p. 168 ; sur tit. xvi.. Art. 9, p. 188; Pothier, Proc. 44. La Banqiie du Peuple v. Gwjy, 9 L. C. E. 484, Q. B. 1857. 105. '. blank, no] any exhib 106. I been filed without g] provisions 1. If the pi do so subsequ foreclosed un Vadenaiii, 1 Q, 107. All tions to thel must be filet except in the 83, 8. 12. 1. Where mc because they return of the the delay did n<| Piiny, 4 L. C. J.| OF CONTESTATION, ARTS. 105-107. 86 105- The prothonotary cannot receive any exhibit in blank, nor any list of exhibits in which the designation of any exhibit is not filled up. Ord. 1667, tit. xi., Art. 82. 106. If the exhibits in support of the demand have not been filed on the return day, they cannot be filed afterwards without giving notice to the opposite party; saving the provisions of Article 100. 1. If the plaintiff fails to file his exhibits with his declaration he cannot fio so subsequently without notifying defendant, and the latter cannot be foreclosed until after the exhibits have been filed. Guibault et al. v- Vdilenais, 1 Q. B. R. 228, 1881. 1 » 1 I ii [i }\ 1 "ll CHAPTER THIRD. OF CONTESTATION. SECTION I. GENERAL PROVISIONS. 107- All declinatory and dilatory exceptions, and excep- tions to the form, which the defendant intends to plead, must be filed withii^ four days from the return of the writ, except in the case mentioned in article 121. C. S. L. C. c. 83, s. 12. 1. Where motion had been made to reject certain preliminary pleas because they bad not been filed within the four days next after the return of the action — Held, that as the action was returned in vacation, the delay did not run. Booth v. The Montreal and Bytoicn liaihcay Com- pany, 4 L. C. J. 296, 8. C. 1868. wxi I I n I . 4- i n, ( ' }ii«i 'i 86 OF CONTESTATION, ARTS. 107-108. 2. An exception to the form filed on the flfth day after the return day of the action, the fourth being a Sunday, v. ill be rejected on motion under the statute 16 Vic. cap. 194, sec. 21. Brock et al. v. Th^herye, 9 L. C. R. 231, S. C. 1859 ; contra : Joyal v. Stafford, 25 L. C. J. 1G6 ; S. C. 1881 ; Brigham v. Datcnon, Nov. 1881, MSS. ; Canada Investment <& Agency Co. V Macpherson, 6 L. N. 136, S. C. 1883. 3. Held, that, where a motion was made to quash the writ and dis- missed, the defendant will not, after the four days allowed by the statute, be permitted to file an exceptibn to the form, and that in such case the dJlibM does not suspend the rule requiring all preliminary pleas to be filed within four days after the return of the writ. Macfarlane v. Worrall d- The Principal Officers of Her Majesty's Ordnance, 4 L. C. E. 97, S. C. 1853. 4. Judgment in vacation was taken on an attachment before judgment and afterwards set aside, and the defendant made motion to quash the seizure— i/eW, that a motion to quash made on the fourth juridical day next after return of writ was in time. Bcaufidd et al. v. Wheeler. 5 L. C. J. 44, S. C. 1860. 5. An exception may be produced after four o'clock p.m. of the fourth day. The Carillon osit of such sum of money as is fixed by the rules of practice of the Court.] 1. In cases under ^l\0 no deposit is required with a preliminary excep- tion. Alie V. Pamelhi, 14 L. C. J. 134, C. C. 18G9, and Dvsjanliiw v. Chretien, 15 L. C. J. 56, C. C 1871 ; LaCompaguie d'Asnumnce v. ISeauUeu, St R. L. 432, 22 L. C. J. 267, S. C. 1878. 2. Nor in actions under ^100, in the Cities of Quebec and Montreal. Kennedy v. McKinnon, 3 Q. L. R. 358, C. C. 1877. 3. But lic'd that a deposit is refjuired with such preliminary pleas. LiLflier V. I'arsvnK, 17 L. C. J. llMi, C. C. 1873. 4. And that in such cases a copy of the exceptions must be served on the plaintiff's attorney. Ihid. 5. Wtereaparty has answered without reserve a preliminary exception which has not been accompanied by the necessary deposit, he is foreclosed from demanding its rejection on that ground. Quintal v. Hoy ct al., 14 L.C.J. 67, S.C. 1868. 6. The deposit must be made simultaneously with the tiling of the plea. Mercier v. The Canadian Pacific liy. Co., 8 li. N. 61, S. C. 1885. SECTION II. '^i '•^ '7' Hi" ^ ' I'' ■, I if,' 1 1 '•'1 OF DECLINATORY EXCEPTIONS. lis. When a declinatory exception, filed by the defen- dant, is maintained, the parties must be dismissed, saving 88 OF EXCEPTIONS TO THE FORM, ARTS. llB-116. their recourse before a competent court. C. P. C. 168; C. P. L. 321. . 1. Where a declinatory exception filed to an action requires proof, and the defendant, instead of inscribing for proof, inscribes for hearinj^ on the merits of the exception, it will be dismissed for want of evidence. Elliott V. ]!(i»ti,'n, ct(il„ 2 L. C. J. 202, S. C. 1858. 2. In piooeedinf^s affecting,' corporations or public offices, the defendant may set up against the information a declinatory exception and at the same time pleas to the merits of the petition. I'lie Attorney •General v. Gratis 15 L. C. J. 255, S. C. R. 1871. 3. A plea which invokes want of jurisdiction ration! loci must be pleaded by declinatory exception. Fisher et al. v. McKnii/ht, it ch /rn«.r af^ainat the return, it being apparent from tlie copy admitted by the plaintiff to bfj the copy serveil, that it never was certified Scaiitliim v. lUiytlic, 8 L. C. J. i:W, 8. C. IHfil. •2o. An exception to the form which states that no projier servire has been nnide upon the defendant is not libelled as required by law, inas- much as it did not state the particulars of the defect in the service which is complained of, and such exception to the fonn should be dismissed. Ihaujo!/ V. Feel; '20 L. C. J. 182, Q. B. 1875. 2(). Where, in a declaration, the amount demanded was expressed in figures — Held, that an exception to the form would lie, and the action be dismissed on such exception, though not appealable, liiret v. Poimion, 11 L. C. R. 493, 8. C. LSfil. 27. The defect of insufficient delay upon the ser\ ice of process a I respondendum may be pleaded by exception to the form. Hunter v, Dagenaix, 3 Rev. de Leg. 72, K. B. 1818; Irvine et aL v. PerrnuU, 3 Rev. dp Leg. 72, K. B. 181!). 28. An exception to the form, based on the fact that at the time of the service on the defendant the bailiff did not inform the latter of the con- tents of the papers served, will be dismissed on motion to that effect, as the Ordinance on which such formality is based is ol)8olete. Velorimier v. HurtuhUe, !» L. C. J. 280. C. C. 18(15. 29. A defendant has a right to object by exception to the form to the sufficiency of the return made upon process ud reApondendum, but he cannot plead that no return has been made. Jonex et nl. v. Morin, 3 Rev. de L6g. 72, K. B. 1812. 80. Matter essential omitted is the subject of a demurrer, but matter essential imperfectly stated is the subject of an exception to the form. Wagner v. Farran, 3 Rev. de L4g. 196, K. B. 1811. 31. And held, in another case, that where matter essential is merely imperfectly alleged and not entirely omitted, the defendant should attack the declaration by an exception to the form and not by demurrer. Walker et vir v. The Corporation of Sorel, 2 L. C. L. J. 22, Q. B. 18«G. 32. An exception to the form in which it is alleged that the contents of a paper writing, purporting to be a copy of a declaration, ai.e different from the contents of the original declaration, and are disconnected, absurd and unintelligible, is sufficient. Doutre v. 'The Montreal and liytoicn Hail- way Company, 5 L. C. R. 98, S. C. 1854. OF EXCEPTIONS TO THE FORM, ART. 116. m M8, In an action a^ainat an endorser of a note of hand, the omiRHion to set up the protest in the declaration can only be taken advanta^^e of by exception to the form or special demurrer. JoneH v. I'elisnon, 2 Rev. de L6«. 28, K. B. & 3 Rev. de L*k. 72, X. B. 1H18. 84. A breach ... contract insufficiently allejjcd must be pleaded by exception to the form. I'acuud v. Ilmtkcr, 2 Rev. de L6g. 207, K. B, 1811. If the breach of contract be imperfectly alleged in the declaration an exception to the form is the proper plea, but if the breach is not at all alleged, advantage may be taken of the omission by demurrer. Wagner et al V. Farran, 3 Rev. de L«g. 1%, K. B. 1811. 35. The allegations of an affidavit upon which an attachment before judgment has ipsued may be contested or denied by means of an exception to the form. Giroux v. Gan-att d O'liricn, 8 L. C. J. 104, S. C. 18(54. 36. Where an affidavit in an attachment before judgment was attacked by exception to the form on the ground t)mt the allegations in the affidavit were falac — Held, reversing the decision of the Superior Court, that the exception was the proi)er proceeding and must be maintained. Lcsli,' lit (il. V. Til,- Molxons' Hank, 8 L. C. J. 1, ; ..: ;■■■ Vk '■< i,i" ..:, t.rt. -;o m ' 'mm ,ii m \l i m i 1 ■ J m W 1 m m i A 94 OF EXCEPTIONS TO THE FORM, ART. 116. Bhould have been attacked by an exception to the form and not by a de- clinatory exception as had been done. Montjf v. liuiter, 8 L. C. J. 20, 8. C. 1858. •II. Where the evidence on a preliminary exception ia identical with that which must arise on the merits, it will still be allowed. Lamb lO lirewKter et ah v. ConnerK et a/., 5 R, L. 581, 8. C. 1878. 42. An exception to the form cannot be received after a motion for appeal : every motion is an act of submission to the jurisdiction of the court and consequently a waiver of all objections to the form of the sum- mons, and a motion for particulars admits the sufficiency of the declara- tion. Monroe >'t nl. v. Laliherti', 3 Rev. de L6j,'. 71, K. B. IHIO. 48. Where to an action ajjainst a corporation three individuals appear- ed and filed an exception to the form as beinj; the parties at whose office the writ and process were served — Held, that, not bein^ the parties to the suit, they could not appear and plead as they had done, and the exception was dismissed. Grinton v. The Montreal Ocean Steam»hip Company, 1 L. C. J. 84, 8. C. 1867. Vide The Exchange Hank v. Napper et ai, ante, Art. 83. 44. On a motion to dismiss an exception to the form — Held, that the merits of such an exception could not be brought before the court by motion. Clark et al. v. Clark et itx., 1 L. C. J. 9l», 8. C. 1857. 45. An exception to the form will be dismissed upon motion, and held to be not served, if the copy left with the plaintiff bears a different num- ber from, and is not an exact copy of, the original filed. McMillan v. Buchanan etal., 17 L. C. J. 18, Q. B. 1878. 46. Where in a motion to dismiss an e.\ception to the form, the plain- tiff urged, amongst other things, that it was endorsed with a wrong num. ber — Held, that the exception would not be dismissed on that ground, as the proper number was not required on pain of nullify, but only to facili- tate the proceedings. LcKlie v. Franer, 16 L. C. R. 43, 8. C. 1864. 47. An e.xception to the form containing erasures and marginal notss which were not referred to at the bottom of the paper was held neverthe- less to be good. lUackhton v. Horn, 10 L. C. R. 399, 8. C. 1860. 48. Where the plaintiff made a motion to reject an exception to the form as not filed within the proj^er delays, and afterwards answ/ed the exception in law without reserve of the motion — Held, that the answer was a waiver and d^nhtenwnt of the motion. Copland et al, v. Cauchon et a/., 14 L. C. J. 242, C. C. 1869. 62. A womai h-'- OF EXCEPTIONS TO THE FORM, ARTS. 116-117. 96 40. Where an exception to the form had been tiled to plaintiff's action — Held, that the plaintiff mi^ht plead now facta in eHtoppel to Huch ex- ception, but that the merits of hucIi estoppel could not bo heard upon motion. Tlie Bacon Fire and Life Innurance Company o/ London v, Wliyd- don, 1 L. C. J. 178, 8. C. 1H57. ftO. Two personH sued in their joint quality (as joint-tutors,) may by one exception to the form, plead matters applicable Hoparutely to one or the other defendant. Conrt v. Catij et rh; 8 L. R. HV.), 8. C. 1«80. 51. A defendant sued for 81,000 damages cannot, by motion, ask for a detailed statement thereof. The proper procedure is an exception to the form. lUiAiume et at. v. Vanneton et oL, R. L. r^\H, (). D. 187'.). 52. A woman sued as a widow, pleaded and proved that prior to the institution of the action she had re-married. The action was dismissed. Dijnex V. Ftilardeau, H Q. L. U. 848, C. C. 1880. .'58. A defendant sued for a penalty under 81 Vic. c. 2o, s. 87 (Que.) by a plaintiff who brings the action in his own name, instead of suin^ as well for the Crown as for himself, should set up the defect by demurrer and not by exception. Andern v. Ilaijer, L. N. 5)8, 8. C. 1888. 64. A defendant sued on an authentic deed cannot complain if she is named in the writ by the name taken in the deed, llndon et al. v. I'ainchaud et al., »> I,. N. 107, 8. C. 1883. See Art. 49, No. 10, ante. '>5 If the alleviations of the demand are va^uc or insutlllcient, the defen- dant should meet it by an exception tu the form and not by a plea to the merits. Itireh v. De^jardinK, 11 R. L. 4«>8, 8. C. R. 1882. .'><>. As a rule, defects in the procedure which entail nu.. ty can alone be attacked by exception to the form. A succinct relation of the facts is all that is re(iuired of the plaintiff; and whore he allejjes an at^reement with a corporation, he need not ^ive the name of the aj^ent with whom he dealt. Geonje v. The Canadian I'acijic lly. Co. 12 R. L. r)27, S. C. 1884.. .")7. An exception was dismissed which nr^^ed that the stamps on the writ had not been cancelled and that the bailiff's return did not particu- larize the hour of the service further than by sayinj^ it was between two and three o'clocK in the afternoon. Iludon et al. v. Painchaud et al., Ji L. N. 107, 8. C. 1888. 117. The plaintiif, upon an exception to the form, as well as at any other time before judgment, may by leave of the court, amend either the writ or the declaration, on payment of such costs as the court determines. C. S. L. C. c. 83, 8. s. 67. '% 1*1 .!♦ m 9e OF EXCEPTIONS TO THE FORM, AHT. 117. llT'f,! m- ' ■ '.1' 1:1:' 'i ,'• ' X 1. A declaration cannot be ho aniondod aH to chantfo tlio nature of the action. An amendment wliereby the plaintiff would set up a prominHory note KB an acknowledgment of a loan, would change the nature of tiio action whicli had been brought for the recovery of the amount of the loan. Vi'Hiu-r V. Seijuy ot ,il., i Q. L. 11. 0, H. C. 1H7H. 2. Where an amendment of the declaration iH of hucIi a nature an materially to alter the allo>{ationH and ccmcluHiontt, an opiM)rtunity of auHwerniK the declaration an amended Hhoiild be afforded the defendant, and therefore a jud^'ment f^rantin^ a motion to make hiuIi ultcratioiiHand pronouncinjj Hinilly on the meritH of the caune at the name time, will he reversed. Moiitniit t. WiUiamH, 2'2 L. C. J. U», Q. D. 1877. H. The failure to state in the writ tlu' plaintiffs' names in full, and the Hivinn a wron« name to the defendant, are not mere irro>»ularities subject to amendment, but absolute nullities, I'arent v. I'aatud, 4 Q. L U. 7H, 8. C. 1H7H. 1 The amount of costs payable on the amendment of a declaration {h within the discretion of the court. Dooimt v. Deni'lidnij)*, 1 L. C R. i'2."i, fi. C. 18'j4. 5. And where the plaintiff was allowed to amend his declaration durint; enqu^te, it wi;s on payment of costs as of an action settled at tiic sta(,'e at which the action then was, viz., after inscription for encjuete. .syHic ,-t ,il. v. Heward, (5 L. C. J. 311, S. C. IHM). 6. A plaintiff on boinj,' allowed to amend his declaration after exception filed, must pay the full costs of action. Hninlrriiit v. IUcIht, t! L. (,'. ]{. 474. K. C. IH-))). 7. The court will, if denninded, urant a motion to suspend all proceed- ings until the costs are paid. Mivillf v. Caion, 3 Rev. de L^^. HU'i, K. B. 1817, 8. Plaintiff brought a hypothecary action. Defendant pleaded an ox ception based on expenditures. Plaintiff moved to amentl so as to take personal conclusions against defendant. Motion t^raiited on payment of ?10 costs — defendant bein^; allowed to plead ; see Tlu'rt ■-'• If the, left, rttiun will only to pleiid .should Tiippii,, ;j Hev. •'^. Tlie court II case where th hfen 8it,'ii»Kl by '■'■'• V. Picird ,tt 1«82. Il». Null the (k'chiratil (lant and liisi delays presci 7 OF EXCEI'TION TO TlIK FORM, AUT8. 117-119. 97 11. Whoro action iH brought in ono diHtrict for libol committed in ano- ther, and dufondant oxc(<)itH to tho juriadictlon, plaintiff will not bo allowed tn amond by allu^iu){ ixibliuatioii in thu dJHtriot whoro tho Huit wuH iirotif{ht initil thu uxueption iH diH^wjHod of. Si'ii,'i-. Nullities in the writ or service, and informalities in the declaration, are waived by tho appearance of the defen- dant and his failure to take advantage of them within the delays prescribed, C. P. C 175. F.C.C.P. J 96 OF DILATORY EXCEPTIONS, ETC., ART3. 119-120. 1. Where the defendant had left the Province before the service of the writ which was made at his last domicile, and appearance was filed for him by an attorney — Held, that such appearance covered the irregularity of service, and all proceedings had afterwards by the plaintiff e.v jmrte who called in the defendant by auvartisement and ignored the appearance, were null, and must be set aside. McKercher v. .Sim;;«oH, 6 L. C. R. 311, Q. B. 1856. 2. Where a real action was brought in a different district to that in which the immoveable in question was situated — Held, that an appear- ance by a defendant without pleading to the form or to the merits of the action was a waiver of an exception to the jurisdiction. Whyte es qital. v. Lynch, et al., 17 L. C. J. 76, S. C. 1870. 3. The appearance of the defendant without pleading a defect in the service of the summons is a waiver of the irregularity. liJlanger v. Par- ruult, 3 Rev. de L6g. 350, K. B. 1817. ' 4 If the notice endorsed on the declaration be irregular, the irregularity is cured by the appearance on the return day, notwithstanding an excep. tion to the form. Chamherland v. Raymond, 3 Rev. de L6g. 195, K. B. 1820 5. Where the Court, on the point of rendering judgment, perceived that there was no writ in the record and no evidence of summons, but the defendant had appeared — Held, dismissing the dtlilhW, that though the defendant by his appearance had the right to waive a want of service, still it is necessary that a writ of summons should have issued, and that it should appear so by the record, in order to give jurisdiction to the Court. Taylor v. SmAal et al.. 3 L. C. J. o3, S. C. 18.58. SECTION IV. ■ i «» OF DILATORY EXCEPTIONS .\ND SPECIALLY OF ACTIONS IN WARRANTY. ISO. The deftndftnt may stay the suit by dilatory ex- ception : 1. If the delays to which he is entitled for the puri)ose of making an inventory and deliberating, whether as heir, or legatee, or in the case of community of property, have not expired ; 2. If he has a right to demand security from the plain- tiff, or the execution of some precedent obligation ; i OF DILATORY EXCEPTIONS, ETC., ART. 120. 99 3. When the plaintiff contravenes the rule that the par- ties should remain in their respective positions until these are changed by judicial authority ; 4. When the defendant has a right to exercise a recourse in warranty against a third party ; 5. When he has a right to demund the discussion of the principal or original debtor ; 6. When the plaintiff has joined in his action several claims which are incompatible, or susceptible of different modes of trial ; and in such case the defendant cannot be bound to defend 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. 1 Pig. 166, 170, 178, 179, 188, 197, 200; Pothier Proc. 28, 29 ; Ord. 1667, tit. viii., Arts. 1, 2 ; tit. ix, Art. 2 ; C. P. C. 174 ; C. P. L. 152, 322. 1. Id au action for the payment of the price of a lot of land, the fulfil- ineut of the condition that the vendor should furnish to the purchaser, within GUI' year, the letters patent from the Crown which constitute the former's title, was a " precedent obligation," and the non-execution of the same was properly pleaded by dilatory and not by temporaiy excep- tion. Bouchard v. Thivienje, 4 Q. L, R. 162, S. C. 1878. 2. On an action for thirty-six dollars, baiance of salary clairaec' by the plaintiff, a clerk — Held, on a dilatory exceptifi by the defendant, that where the clerk has collected money for his employer, for which he has not accounted, the defendant is entitled to a stay of proceeclfngs until such account be rendered. Thompson v. liourget, 17 L. C. R. 26'J, C. C. 18(57. 3. That costs due on a former action are not paid cannot be pleaded by exception, but a motion to stay proceedings will be allowed, if it appear that the former action was for the same cause, and was heard upon the merits. Cluirtier v. McLeith, 3 Rev. de Leg, 70, K. B. 1821. 4. Non-payment of costs in a former action cannot be ^he bubject of p dilatory or peremptory exception. Robkhaud v. Eraser, 3 Rev. de L6g. 71, K. B. 1817. 100 OF DILATORY EXCEPTIONS, ETC., ART. 120. m ¥' ^ ' Mi I &ll ^■^i jn See cases under Art, 453, post. 5. Where a defendant, sued for the price of an immovable which he had purchased, and which was burdened with a hypothec, pleads his right to have such hypothec discharged before being compelled to pay, he must do 80 by a dilatory exception and not by a peremptory one. Gram- mant v. Lemire, 5 R. L. 67, C. C. 1873 ; Wainwright et ux. v. The Mayor, etc., ofSorel, 5 R. L. 668, S. C. 1874. 6. Where a suit was pending in tho Admiralty against certain goods seized as forfeited, and an action of trespass was brought against the seizors for illegal seizufe — Held, that the defendants were entitled to an exception dilatoire to stay the proceedings until the first action was decided. Hartshorn ct al. v. Scott d- Somcrville, P. R. 5, K. B. 1810. 7. A for • »n plaintiff is not bound to give notice of the filing by him of a power autuorizing his attorney ad litem to act for him, in order to save himself from costs of an exception dilatoire. The Bank of Commerce v. Papinean, 20 L. C. J. 30G, S. C. 1876. 8. A power of attorney mtiy be demanded when the plaintiff, a foreigner, contests an opposition. Baltzar et al. v. Grewing et al. tion to enable him to call in the maker of the note in guarantee. Beaulieu v. Demers, 6 B. L. 244, C. G. 1874. 14. An exception of discussion which fails to indicate the property to be discussed, or to allege even the existence of property liable to discus- sion, and which does not contain an offer to defray the expenses of dis- cussion, and is not accompanied by an actual deposit of funds tn that end, is bad in law and will be dismissed on demurrer. Panton et al. v. Woods et al., 11 L. C. J. 168, S. C. 1866. 15. That all the persons who ought to be defendants in an action ex contractu are not parties to the suit is rightly pleaded by exception peremp- toire ti'mporaire, in which those who ought to be joined in the suit must be named. Fra»er et al. v. Dunn et al., 3 Bev. de. Leg. 196, K. B. 1812. 16. The benefits of division and discussion cannot be allowed if they are not pleaded by dilatory exception. Tanguoy v. Ducroio, 3 Rev. de Leg. 71, K. B. 1816. 17. An action may be instituted aga<>ist a security or caution before the discussion of the principal debtor, and in such case the defendant must allege by dilatory exception that the principal debtor should be first dis- cussed. Potdevin v. Miville, H Rev. de Leg. 71, K. B. 1816. 18. On an exception dilaloire claiming the right of discussion, the ex- cipient is bound to advance to the plaintiff such sum of money as may be necessary to pny the expenses of discussion. Gauthier v. Morisette, 3 Rev. de L6g. 71, K. B., 1821. 19. In a commercial matter if it appear in an action of assumpsit that the plaintiff has a partner who is a party to the contract and is not a party to the suit, the action will be dismissed, although the defendant has not pleaded such fact. Pozer et al. v. Clapham, S. R. 122, K. B. 1817. 20. A dilatory exception to call in a ijarant formel must show that the Gxcipient is within the delays, and that he has taken the necessary steps to call in his narant. lielle v. Dolan, 20 L. C. J. 302, S. C. 1876. 21. Where an hypothecary action was brought against a third holder — Held, that he might validly plead the exception of discussion, notwith- Btanding the mortgage sued on was a 8{)ecial mortgage, but that he had no right to claim to hold the property until his improvements and ameliora- tions hatl been paid for Piice v. Sehon tC- MacKaij, 2 L. C. R. 455, S. C. IH.ni. 22. In an action against suroties on a bail bond in appeal, the question as to the necessity of discussing the projHsrty of the principal debtor ought not to bo raised by demurrer, but by an exception de dincussion. Thome v. McLeiiiutn et al., 9 L. C. R. 403, S. t". 1858. :';IW 'wn 102 OP DILATORY EXCEPTIONS, ETC., ART. 120. '^ u Id * ,m • - % If ' ( 23. Where the defendant pleaded the diacuBsion of the principal debtor by a peremptory exception en droit temporaire — Held, that such a plea should be urged by dilatory exception. Noad et al. v. Von Exter, 5 L. C. J. 102, S. C. 1860. 24. In revendication of immovablf property, if the defendant holds the estate demanded inerely as a tenant, he must plead the fact by dila- tory exception and set forth the name and residence of the proprieior. Clement v. Hamel, 3 Rev. de L6g. 71, K. B. 1817; Dupuis v. Bouvier, 27 L. C. J. 339, S. C. 15<83 ; Lawlor v. Catwlion et al. 6 Q. L. R. 13 ; 8. C. 1876. And b'- jaay be p\^t out of the case before the lessor is called in. Demers v. Samson, 8 Q. L. R. 345, 8. C. 1882 ; see Letage v. Prudhomme, 26 L. C. J. 213, 8. C. R. 1882. 25. A dilatory exception founded on the benefit of discussion claimed by a surety, must be decided before proceeding with the pleas to the merits, and the proof must be limited to the facts set up in such exception. Cunningham et al. v. Ferrie et al., 2 Rev. de L6g. 169 Q. B. 1842. 26. And where the defendant pleads by exception temporal re that he held the property demc nded as guardian appointed by a justice of the peace and prays that the plaintiff's action be dismissed, it is irregular. Pacaud v. Jiegin, 1 Rev. de Leg. 507, K. B. 1818. 27 And held, also, that he could only stay proceedin,<;8 until the person from whom he derived authority to keep the property claimed is made a party to the suit, and his exception, therefore, should be an exception dilatoire. lb. 28. All joint owners in an action in rem must be joint plaintiffs in the process ad renpomletiditm. Bellet et al. v. Allison, 3 Rev. de L6g. 305 K. B. 1818. 29. Co-partners, parties to a contract, must be co-plaintiffs. Morrogh V. Huot, 2 Rev. de L6g 207, K. B. 1811. 80. And where a landlord took an attachment in revendication against a piano belonging to a third person, after it had been removed frotn the house of his tenant, but neglected to join his debtor or tenant in the action — Held, that the action must be dismissed. Auld v. Laurent et al., 7 L. C. J. 49, S. C. 1863. 31. If the legal interest of several persons who are parties to a contract be joint they must join in an action which in form is ex contractu. McLeish v. Lees, 2 Rev. de L6g. 123, K. B. 1811. 32. An exception which states that there are other heirs who ought to be made defendants must name them, aver them to be alive, and point out their residence. Pagdv. Carpentier, 3 Rev. de L*g. 395, K. B. 1810. 01 33. To an i all of them ha of the suit, th the court. V\ 34. A cumu Belnnger v. De Perrin et al., 6 35. A demai raent upon pr vitiate the rest de Chemin de I 36. The pla declaration, as stones with ii demurrer that could not be jo to choose betwi of action referi were properly L. 695, 8. C. 1( 37. There is and an accouni 7 37,Q. B. 18^ 38. Where tl person elected time of his ele< quence illega declaration t therein statet be declared du tions and con meaning of the 13 L. C. J. 15 39. Where t to the defenda upon his propt ment, and alsi had made and could be convt conclusions although arisi be joined. lU See Art. 15 C( IS OF DILATORY EXCEPTIONS, ETC., ART. 120. 103 33. To an action against several heirs it is not a valid objection that all of them have not been made parties to the suit if, during the progress of the suit, they have been made parties by an interlocutory judgment of the court. Viger et ux. v. Pothier, Stu. Rep. 894, K. B. 1830. 34. A cumulation of actions should be pleaded by a dilatory exception. Belamjer v. Desjardins, 3 Rev. de Leg. 70 K. B. 1816. MMiot esqual v, Perrin et al., 5 R. L. 695, S. C. 1874. 35. A demand for damages in an action for the removal of an encroach- ment upon property does not amount to a cumiilation, and does not vitiate the rest of the action. La Corporation de St. Martin v. la Compagnie de Cheinin dc Fer de Vide Jesus, 15 L. C. J. 106, Q. B. 1870. 36. The plaintiff brought action for damages, setting up, by way of declaration, assault and battery and defamatory language and throwing stones with intent to injure, and the defendant pleaded by way of demurrer that the declaration contained several causes of action which could not be joined in the same suit, and asked that the plaintiff be held to choose between said causes of action — Held, that the different causes ot action referred to were not contradictory or even incompatible, and were properly laid in the declaration. Met'uot esqual. v. Perrin et al. 5 R. L. 695, 8. C. 1874. 37. There is no incompatibility between the allegation of a verbal lease and an account for use and occupation. Hanower\. Wilkie, 1 L. C. L. 7 37, Q. B. 1865. 38. Where the plaintiff by his declaration (or petition) alleged that the person elected and holding the position of mayor of Montreal was, at the time of his election, disqualified from being so elected, and was in conse- ijuence illegally occupying the position, and alleged also by the same declaration that the election in question was null and void for reasons therein stated, and asked that it be so declared, and that the petitioner be declared duly elected — Held, on dilatory exception, that such allega- tions and conclusions were incompatible with each other, within the meaning of the provisions of the Code of Procedure. Jieaudry v. Workman, 13 L. C. J. 15 S. C. 1869. 39. Where the plaintiff by his declaration set up a deed of sale by him to the defendant and complained of the defendant for having encroached upon his property, asking that he be condemned to remove such encroach- ment, and also that he be condemned to till up an excavation which he had made and remove the trap-door, and to lower the passage, so that it could be conveniently used, and to pay 8250 damages — Held, that these conclusions contained three different and incompatible actions, and, although arising out of a deed of sale from him to defendant, could not be joined, liobvrtson v. Stuart, 13 L. C. R. 462, S. C. 1863. See Art. 15 ante. ;ii i 1 'I'jpj' ''It i|fe ,, i ! ' 'i "I I 104 OF DILATOR'S EXCEPTIONS, ETC., ART. 120. f)'> hi i ' •i) I m 40. In an action brought to recover upon a policy of insurance, the defendan* pleaded by dilrtory exception that a true bill had been found by a grana jury against the plaintiff, and was still pend: -xp,, charging him with arson with a view to defraud them, the defendants, and that there- i'ore all proceedings in the case must be stuyed and suspended until the plaintiff should have been tried upon the indictment— //eW, that the indictment of a criminal charge against the plaintiff could not operate , suspension of the proceedings in an action against the defendant. luire V. The Liverpool and London Fire and Life Insurance Company, 7 ii. C. R. 343, S. C. 1857. 41. Demolition of works completed may be demanded in a petitory action. Joyce v. Hart, 1 8. C. Rep. 321. 42. Where a suit is begun by a capias issued upon plaintiff's affidavit, no power of attorney is requisite. McLaren v. Hall, 2 L. N. 178, 8. C. 1879. 43. Security for costs may be demanded by motion as well as by exception. The delay to file a dilatory exception based on the ground that plaintiff, who resided out of the Province, had not produced a power of attorney, runs from the date of security being entered for costs. Mitchell V. Flanagan, 6 Q. L. R. 295, C. C. 1880. 44. The purchaser, sued for an instalment of the purchase-money, properly pleaded by temporary exception the vendor's default to discharge a bailleur de fonds which he was bound by the sale to do. Law v. Frothing, ham, 25 L. C. J. 172, Q. B. 1872. 45. Where defendant has obtained congJ defaut of a former action witli costs, he may by petition apply to have proceedings sus^xinded in a sub- sequent suit until such costs are paid. Moisan v. Bourgeois, 11 R. L. 120, C. C. 1871. 46. The production of a general power of attorney to sue for the re- covery of debts due to an absentee suffices, and it is not necessary that the attorney ad litem be named therein. Major v. Paris, 7 L. N . 266, S. C. 1884. 47. The merits of a dilatory exception cannot be decided upon a motion to reject it, such motion putting in issue the facts alleged in the plea. Bank of B. N. A. v. Whelan, 12 R. L. 626, 8. C. 1884. See Clark et al. V. Clark et ux, C. P. C. 116, No. 44, ante. 48. A foreign corporation having an office in the Province, must, on demand, furnish a power of attorney and security for costs. Singer Manu- facturing Co. V. Beaucage, 8 Q. L. R. .354, S. C 1882. 49. An attachment had been lodged in the hands of defendant in an- other case to which plaintiff was party, and defendant prayed (upon being sued for debt) that proceedings should be stayed until after a decision on the attachment. Prayer granted. WHulloran v. Barlow, 3 L. N. 171, 8. C. 1880. 121. If delay for m for pleading preliminary until after i and to delib 122. Ifi by means ol plead to the have been ct 123. IT] days after & whatever tin pursuant to viii. Art. 2. 1. The delay c V. IVhelan, 7 L. 124. Th( tain a summ made, with ings which Art. 4. 1. Where the name as the ori not necessary tt the original rec 1867. 2. If tlie wan costs incurred a The warrantor lelieve tiie warr mere fact that witnessea necea does not sutlicie contestation. rfl OP DILATORY EXCEPTIONS, ETC., ARTS. 121-124. 105 121. If the dilatory exception is founded upon tbe legal delay for making an inventory and deliberating, the delays for pleading to the action, and even for setting up other preliminary pleas, do not begin to run against the defendant until after the time allowed him to make such inventory and to deliberate. Ord. 1667, tit. viii., art. 3. 122. If the defendant has warrantors to call in, he mav by means of a dilatory exception, obtain that his delay to plead to the action be not computed until the warrantors have been called in and held to plead to the merits. 123> I The delay allowed to call in warrantors is eight days after service of the principal demand, exclusive of whatever time may be required to summon the warrantors pursuant to the provisions of article 75. j Ord. 1667, tit. viii. Art. 2. 1. The delay does not run during the long vacation. Bank of IS. N. A. V. Whelan, 7 L. N. 811 ; 12 R. L. 647, S. C. 1884. See Art. 463 post. 124. The demand in warranty must be special and con- tain a summary statement of the grounds upon which it is made, with a copy of the principal demand and of the plead- ings which require the calling in of the warrantors. Ibid. Art. 4. 1. Where the writ had issued under the same number and the same name as the original procedure, and as it were in the same cause, it was not necessary to produce either a copy of the title-deeds or any portion of the original record. Judalt e.rj). v. Jiidah d- Holland, 1 L. C. J. 15)4, S. C. 1857. 2. If the warrantee neglect to call in his warrantor, he must pay all costs incurred after the proceedings which necessitates sxich impleading. The warrantor may undertake all the risks of the contestation and relieve tiio warrantee from taking any proceedings to call him in, but the mere fact that the wari'antor gave the warrantee the names of certain witnesses necessary to prove the existence of the guaranteed liability, does not sufficiently prove that the warrantor intended undertaking the contestation. Cnrreau v. McGinnis, 1 Q. B. 11. 12, 1880. ! >r , 'hi* J ■^ ' ■ i "s 106 OP DILATORY EXCEPTIONS, ETC., ARTS. 125-128. i 135. In cases of simple or pevsonal warranty, the war- rantor cannot take up the defence of the defendant, but can merely intervene and contest the principal demand, if he thinks proper. Ibid. Art. 12. 126. In cases of real warranty, the purchaser who is dis- turbed or evicted, is not bound to call in first his immediate warrantor, but he may summon in warranty any more re- mote warrantor who may eventually be bound to intervene in the suit. C. S. L. C. c. 82, s. 82. .1 t u •al I 14- 127. In cases of real warranty, the warrantor may take up the defence of t'^e warrantee, who is relieved from the contestation, if he requires it. Nevertheless, although relieved from the contestation, he may remain in the suit, and act in it for the protection of his rights. Ord. 1667, tit. viii , Arts. 9, 10, C. P. C. 184. Judgments rendered against ti*3 warrantor may be exe- cuted against the warrantee. It is sufficient, in any case, that the judgment be served upon the warrantee, without any other demand or procedure being necessary. Ord. 1667, tit. viii., Art. 7. 12S. Whenever, according to Article 29 of the Civil Code, a person who does not reside in Lower Canada is bound to give security, all proceedings in the case may be stayed upon application of the adverse party, until such security has been given. C. S. L. C. c. 83, s. 68 ; Jones v. Kerr, Montreal, 4th May, 1852. 35 Vic. c. 6 (Que.) f). "The delays for filing preliminary exceptions and pleas to the merits do not begin to run until after the date of the service, upon the defendant's attorney, of a notice, informing him that such security has been given." 1. An officer stationed with his regiment in the Province cannot be compelled to give security for costs. Sutherland v. Heathcote et al., 8 Rev. de Leg, 347, K. B. 1808. GiTriii!>, in re. OF DILATOUY EXCEPTIONS, ETC., ART. 128. 107 2. Bnt the mnstor of a foreign vesael who has no domicile here must give security. Grace v. Crawford, 8 R. L. 4-17, S. C. 1871. H. And a seaman. Heanhman v. Harrou'umith, 3 Rev. de Leg. 347, K. B. 180»; AiiderMii v. Brmnaard, 3 Q. L. R. 287. C. C. 1877. 4. And foreign corporations. The Colnmhinn Inn. Co. v. Hendemnn, 1 L. C. L. J. »8, 8. C. 18(55. 5. Even if they have an ofHce in the Province, and have made a deposit with the Government under the Insurance Act. The Siapara, etc, Co. v. Mullin, 21 L. C. J. 224 ; The Globe Mtthutl Ins. Co. v. The Sun Mutual Inx. Co., 1 Legal News. 18'.( ; but see this latter case, 1 Legal News 53, S. C 1878 ; Sinner ManufaehtrhKj Co. v. Beauea; Benninp v. The Montreal li. Co. if- Youvii d- Corninn et al., 2 L. C. J. 287, 8. C. 185'.> ; Miller et vir v. Dkhfne d!- Laj- lamme, 8 Q. L. R. 18, 8. C. 1881. Kvon though he has a domicile here; Gravelle v. Mallette d- Mallette, 21 L. C. J. 1(52, S. C. 1877. Contra: DuprJ v. Cantara Devlin, 10 L. C. R. 452, 8. C. 18B0 ; Morrill v, Donald et al. it: Hone et al. « L. C. J. 10, 8. C. 18ftl ; Weh. »ti'r\. I'hillbriek it U'ilkie, 15 L. C. J. '242, 8. C. 1871. 13. And a plaintiff contestinK a Karnishee'H declaration. Meyer et al. V. Scott ,0 llenninif et al., 4 L. C. J. 140, C. C. 18«0 14. An oppusant before fllin){ a contosttition of a claim of another opiM)sant, de8crib«il as residing beyond theliinita of the Province, in enti- tled to call upon such other opponant t.> pnt in security for costH. Bonn- eina v. Bonacina et al., 4 L. C. J. 148, 8, C. 1869. 15. But it iB not competent for him to demand security for cottH after tilin>{ such contoatation. Ih. K). A guardian autiinst whom a rule for contruinte par eorpt has issued at the instance of a party no longer a resident of Lower Canada is eiititlod to security for costs. Miller v. Bourpeoin it Holland, 10 L. C. J. 196, 8. C. 1872. 17. And a foreign intervening party who has given security for costs to the plaintiff;>ar reprine d'inntaiwe can demand security for costs from him, on producing aftidavits to show that the latter has left the Province pur manently since the institution of the action. McCullorh v. Jiouth d- Hrm- man, 11 L. C. J, 25, S. i\ 1H6«. 18. And that, although it apjiears that the \)\iimt\ii par reprioe tVimttanee had left the Province before the intervening party came into the suit. //; 11). Security for costs can oidy be domandwl by a citizen from a for- eigner, but when the foreigner has \m\, in a security he becomes piuj^id of his (juiility of foreigner, anil is on a par with tlie citizen, and can de- mand security for costs from the latter, if he change his domicile to a foreign country during the pendency of the action. //;. 20. When a defendant, after judgment by default has been entered against lr'"n, is allowed to api^ar by opposition and plead to the actinii, he cannot afterwards make a motion for security for costs on the ground of the plaintiff being an absentee unless in his opposition he has reserved the right to make such motion. Bmttli v. Lmrton <(• Lairlon, 13 L. C. J. .59, S. C. 1809. 21. On a motion for security it does not suffice to allege that pliiintiff has left his domicile in this Province. Prentice v. The Graphic Co., 1 Legal News, 184, S. C. 1878- 22. Where the plaintifi' who resided in the Province sned as receiver of a corporation under the judgment of a court in Ontario — the corporation having no place of business here— he was ordered to give security for costs. Gilen enqual v. Chupleaii, o L. N. 372; 8. C. 1682. OF DILATORY EXCEPTIONS, ETC., ART. 128. 109 28. When two or moro defon-lantft sovemlly move for Bocnrfty, separate brinds mtiBt bo ^ivuii, but the hhiiiu Hociiritiufl in each bund will HtiCtice, liill et nl V. Knotrlton et al., 18 L. C. R. 2H9, 8. C. lH(i3. 24. Hecurity for coHtH caniiot l)o exacted from any ijorson rcHidin^^ in Lowor Canada, even HupiM)8in^ ho in not a houhuholder thereiti, and liaB another donucilo out of Lowor Canada. llijlitud v. Oijilvic, 10 L. C. J. 200. K. C. 1H(»1. 25. The teniimrary abHcnco of the plaintiff from the Province, while liiH family continuoH to abide therein, does not render him liable to security for coHtH. Mountain v, Walhr, 5 R, L. 717, S. C. 1871 ; Prentice v. ISmphic Co., 1 Ln«al News, 5.')'), S. C. 1H7H. 2(i. A demand for Hecur'ty for coats from an insolvent will not be granted, uuIchh th« inuolvcnt ia auch under the Act. Siaiiam, etc, Co. v. Mullin. 21 L. C. J. 221, 8. C. 1877. 27. An application for security forcoatanniy bo legally made by dilatory C!.\ct'ption. (iraliam v. derruiii, 17 L. C. .1. 2i»'), H. C. 187.S. 28. Where i>laint'*T does not resiile in the Province of Quebec, ho is boiuid to yive security for any costs which may be occasioned to the defendant by his action. Cuhtn et al, v. Uertraiul, 17 L. C. J. 22t), C, C. 1873. 2!>. Where the plaintilT left his domicile in Lower Canada, and went to reside in the United States upwards of two months after the return of his action— //i'/(/, that a motion for security of costs would lie, not with - standin>4 the rule of practice providing', that motion for security for costa must be nuide within four days from the return of the writ, if motion was made on the first day of tht; term next after the discovery by the defendant of the chan>'e of residence, and the facts are established by aflidavit. Stall;>-r v. Hammond, H L. C. J. 137, S. C. 1H<)4. ;<(). And, in a similar case, held that security for costs may be demand- ( d,| although it be shown by athdavits that the plaintiff has a place of husineas containing valuable stock and a doiniciln in the city, and his iibsencois believed to be toinixiinry, namely, for ab L. C. J. 'i.'S, C. C. 1804. HI. Notice of demand for security must be .it-nvif within lour days after file return. Uonsneaii v. Tritdel et al., 13 L. C. J. 138, S. C IH{VJ; Mellis V. Swaleii, 22 L. C.J. 271, 8. C. 1878; Lynch v. Guimond, fi R. L. 713, 8. C. 1875 ; Tiem et al. v. Triage et al., r, L. C. J. 'If,, C. C. 1800. 32. A motion for security for coats served and tiled within four days, and preaented on the first day of the next term, will bo granted, even though the term bej^iia several weeks thereafter. The liowker Fertilizer »i; :'Mm y. r 1 % J.. .. ill ! f:' I f :*., w i U- urn i I 110 OF DILATORY EXCEPTIONS, ETC. ART. 128. ■Mi V Dili J. • ■ »■ r.j C... V. Cameron, 7 L. N. 214, Q. B. 1884; see alio 7 L. N. 20»A- '217 ; Marrotte v. DeHCotvau, fi L. N. H3»l, H. C. 1HH2. Contra : r/«' Newnrk P,it. Lrathn- Co. V. Fr«///', 14 L. C. J. 18, S. C. 18(59; BiUtiit v. Stom; 1 K. C. 247, S. C. 1871 ; Sproiil v. Coiriveau, 1. L. N. 1.H0, 22 L. C. J. 65, H. C. 1H7H; Aihmxet al. \. McF.ntyn; 8 L. N. 148, 8. C. 1878; The CaiuuUm, Uank «f Comiiwri'e v. MrHuuvmn vt al., 5 L. N. 128, 8. C. 1882 ; I'ottir v. McDoiiiild, 10 Q. L. R. 101, 8. C. 1883 ; Carter v. aennuin, 21 L. C. J. 810, 8. C. 1877 ; OileH v. O'Horii, 5 L. N. 880, 848, 8. C. 1882. 88. Whore notice of motion for security for costs is not K>ven within four days after the return of notion, tlio motion must be rejected thou^'h made in the first torni after the return. Carnon v. Ciirlittle et al., iriL.C. .7. 78, 8. C. 1870. Contra : Maiillin v. Coijlilan, 8 U, L. 447, 8. C. 1871 ; Vvrrij V. The St. iMwreiue Grain, etc., Co., 5 L. C. J. 262, 8. C. 18(11. 84. Where a defendant tiles an exception to the form in a case wliere a rule stiiyin^j all prooeedinjis until the plaintiff shall have put in security for costs, has been made absolute, the plaintiff is not entitled to u heurinj,' upon the merits of such exception until he puts in security for costs. EaHton v. Deimon, 5 L. C. K. 84'-', 8. C. 18.55. 85. Upon the deatii of a surety, the defendant is entitled to another surety, and no waiver of this ri>» of one person as security is insufficient. Powers V. Whitmij, L. C. J. 40, 8. C. iHf.l. Two sureties shoulil be furnished, Donald v. Deckel, 4 L. C. .). 127, H. C. IBolt. 87. For the purpose of ordinary security for costs, it is not necessary tliat the surety be proprietor of immovable property. f'tleii et al. \. McLaren et al., 17 L. C. R. 2()7, 8. C. 18(')(1. 38. A deposit of a sum of money will be accepted in lieu of sureties. Mann et al. v. Lamhe, 4 L. C. J. 800, 8. C. 18«i0; Canada Tanning K.vtract Co. V. Foley, 20 L. C. J. 180, Q. B. 1875. 89. But plaintiff will not be allowed to f{ive security by hypothec, nor by deposit where no amount is specified. Canadian Copper Pyrite Co. v Shalt; 19 L. C. J. 99, 8. C. 1874. 40. The plaintiff is bound to notify the defendant that security for costs has been {{iven, and a demand of plea and foreclosure without such notice are irregtilar, and will be set aside, as also a judgment of the prothonotary rendered in the cause in favor of the plaintiff treating such foreclosure as valid and regular. Jersey v. Rourk, 13 L. C. R. 172, Q. B. 1862, ill ' OF DILATORY EXCBPTIONH, ETC., ART. 128. Ill 11. And whero jud^niont hait beeu ho taken, the defendant may obtain relief by opiKiHition or simple requfU- ujhi (Vopponition, or by un appeal to the Court of Queen'n Heneh, but if he take hia remedy by apfraal the court will only Mrn >t the coHta of the court below and the diubursementB in apfiual. III. Contra : Tuckett v. Forrester ct «/., 18 L. C. J. 171), 8. C. j Grave* v. Dciiimn et at., 18 L. C. J. 178, 8. C. It. 18(H). 12. Whore a plaintiff is ordered to ^ive Hecurity for coata by the first day of next term, he cannot, by furnishing security in the intervening vacation and giving notice thereof, compel the defendant to plead even preliminary pleas, before the said first day of term. Kennedy v. McKiii- non, H Q. L. U. a5H, C, C. 1877. 13. A foreigner causing a writ of injunction to issue may be comi)elled to give security for costs though he has al oady given securiiy under 41 Vic. c. 11, H, i. (Quo.) Itnliie v, Iloiird of MmianemeiK of Tcmpurnliliex l^iintl, etc., '2 L. N. 277, 28 L. C. J. 71, R. L. «82, 8. C, 1M71). 44. Where defendant moved that plaintifi ;hould g- o socurit- I'or couts on proceedings after judgment, and plaintifi replied that he . d given Hocurity before judgment, the latter was ordered to give neve n-.ourity as the former did not apply to prooc«:dingH after judgmiuit. Dolton v. Dora' .(• MdiiHjield, 2 li. N. 181, H. C. 187'.». I.'). Ho long as plaintiff does not move in the suit after his insolvency, lie cannot be said to continue a suit so as to be bound to give security for costs. I'ernj v, I'ell, 23 L. C, J. .'55, 8. C. 1871). 4(1. The obligation of an insolvent plaintiff to give security under the act of 187r>, s. 3i», is not limited to four days and a motion to stay pro- ceedings until security shall have been given need not bo made within the delay Hxed by ('. C. 1*. 107, or 11. of 1*. (12. Terreau v. Lucuurtitre, 5 Q. L. R. 354, 8. C. 187S). 47. Defendant ap{>ealed from a judgment of the Huixsrior Court render- ed in favor of plaintiff who had Imjc Mne insolvent, and moved that all proceedings should bo stayed until •' ' v.ter gave security for costs or until the assignee took up the insttiiico, and that in default, appellant should br allowed to proceed ex parte — Held, that he had no right to make such a demand, and tl'.".*, in any event, the motion should have been served on the assignee. McKinnon v. Thompnon, 23 L. C. J. 95, I) R. L. «>35, Q. B. 1878. 48. Though plaintiff may have a domicile in this Province for purposes of succession, etc., he must give security if he has ceased to reside herein. Jones V. Vanoliet, 3 L. N. 184, 8. C. R. 1880. 112 OP DILATORY EXCEPTIONS, ETC., ARTS. 128-129. w 34 If Itfi If 49. An oppo ;ant who resides out of the Province and who claims the thing seized must give security. Those only of the opposants who reside out of the Province are bound to give security. A delay of eight days to furnish security is too short for an opposant who has only a short space of time to prepare his opposition. jMiller et vir v. DA-hPiie (£■ Laf- latiime, 8 Q. L. K. 18, S. C. K., 1881. 50. Where, of two co-plaintiflfs, not co-partners, and betw sen whom no solidarity exists, one leaves the country after suit brought, security for costs can be demanded only from the absent plaintiff. Humbert et al. v. Mifinot, 18 L. C. J. 217, Q. B. 1874 : see Beaudry et al. v. Fleck, 20 L. C. J. 304, S. C. 1870. 51. Where one of two co-heirs, by whom the suit is entered, is a non- resident, he will he held to give security for costs. Ilendermn et al. v. Henderson, 23 L. C. J. 208, 2 L. N. 191, 9 R. L. 686, S. C. 1879 ; Hoivard et al. v. Yule, 3 L. N., 373, S. C. 1880. 52. Security for costs will not be ordered against a plaintiff who has left the Province since the institution of the action, if it appear that the motion was not made within four days of the knowledge of the departure. Oliver v. Darling, 3 L. N. 303, C. €. 1880. 53. Such a motio i will be rejected unless made with diligence after a knowledge of the departure. D' Extras v. Perrault et al., 3 L. N. 304, S. C. 1880. 54. An oppof ition was produced on the 25th June, the 29th falling on a Sunday. On the 30th plaintiff gave notice that on the first day of term he would move for security, the opposant being a non-resident. The Court below granted the motion. Leave to appeal was refused, Ist, be- cause, under C. C. P. 24, the party seeking security was within the delays if they applied ; and, 2nd, because the four days rule applied only to proceedings served on the opposite party, nadleigh v. I'ainchaud d- Nnd causes of action. Stephens et al. v. Tidmarsh, (5 L. C. R. 3, Q. B. 18.56. ft. Litispendence may exist t.iough the parties, plaintiff and defendant, occupy different positions in the two actions, and although the first action concludes for a sale and licitation, wliile the second concludes for a partaije en licitation. liuswell v. Lloyd et al., 12 L. C. R. 147, S, C. 1862. 6. And held, also, that litispendence must be reckoned from the service of the writ and not from tlio day of the return. //;. 7. A plea of litispendence which does not cover the whole cause of action cannot be maintained. Miller et nl. v. Dutton, 11 L. C. J. 287, S. C. R. 1866. 8. In an action of damages for assault — Held, that a plea of criminal [irosecution for the same offence was no bar to tlie action. Peltier v. .Miville, 3 Rev. de Leg. 70, K. B. I8l8. 11. A judgment dismissing a hypothecary action for want of proof of possession by t.'ie defendant cannot be opposed by exception rei jiidi- ruUc to a subseiiuent demand founded on an actual possession, possession l)eing a fact which is renewed day by day. Nye v. Volville et al., '■> L. C U. 108, Q, B. 1855. 10. Held, that a plea tilluging thai a suit has already been brought and decided in a foreign competent tribunal, by the same plaintiff against the same defendant, for the same cause of action, was a good plea, more especially if it sets up payment of the judgment by the defendant. Vauiihan et al. v. Campbell, 5 L. C. R. 431, S. C. 1855. 11. In an action for the penalty provided by 12 Vic. cap. 45 — Held, that a plea of former recovery for the same offence in a penal action, which does not set out that the first action was instituted before the r i r Ti mm , •I 'iiP;fe■-■■"■^'■- ^^m-ii <1 ^ 118 OF CONTESTATION UPON THE MER1T8, ART. 136. second, is. bad, and will be held bo on demurrer, as no matter of defence arising afttr action brought can properly be pleaded in bar of further maintenance of the action. Mountain v. Dumas, 7 L. C. R. 480, S. C. 1867. 12. Nor is an action which does not proceed tn judgruent any bar to another a'-tion for the same offence. 16. 18. In an action to recover the amount of tbrt ? i idgments a>;aii;9t the del'ftadant which had been transferred to the plaintiff--He?. J, rlat, rv» judicato might be properly plead&l to such nction a,uu ;'ie h-^'M'^- was accordingly dismissed. Wh<;>an v. Kcekt; 13 1.. €. R. 363, C. C. 1*53. 14. Wliere iu an action a;' iinst a n:iaor for damages, the defendant pleaded, by pori^inptory e-vccption, the lack of assistance of a ouj'ator, and the plaintiff moved to disraisa the plea on the ground th^t it ; hould be pleaded by exr option to the iorvi -llrl'l, that the ixoeption was properly brought, and the motion was rejected vs'itl'. costsS. Crump v. Mtddhmas, 5 L. C. J. 48, S. C. 1860. 1f>. Where to an action on a proniisaory note the defendant pleaded minority simply, the plea was Md to bo insufficient on the ground that ii. i should have pleaded lesion and asked to be released from the obligation. Ciirtier v.PelUtier, 1 R. L. 46, S. C. 1808; lUuteau v. Qauthier, 1 Q. L. R. 187, 0. C. ; Boucher v. Girard, 20 L. C. ^ 134, C. C. 1875. 16. It is for the defendant to plead u'lnecessary delay in bringing a redhibitory action, as it is a plea of prescription, and will not be supplied by the court. Danh v. Taille/er, 5 R. L. 404, C. C. 1874. 17. Where to establish a plea of prescrijstion the possession of pretle- cessors is necessarily invoked, the names of such predecessors must be duly set forth in the pleadings. Lampmn <(• Taylor ct al. v. Ilughf* et al,, 13 L. C. R. 154. S. C. 1862. 18. A plea of prescription is not necessarily brought before every other plea or exception. lieaudry v. lirouilht et rir., 11 L. C. J. 50, S. C. 1866. IP. Pleas of prescription cannot be pleaded by demurrer but by i)er- emptory exception. Fnucher v. lit'laniier, 4 R. L, 388, S. C. 1872. 20. Where on the face of the pleadings it appears that a note of hand is of more than five years' standing, and prescription is pleaded, the court, on oath made by the defendant, will dismiss the action. Benton v. Styles, 3 Rev. de Leg. 38, K. B. 1812. 21. Where to an action for seamen's wages the defendant pleaded prescription, under tlie 127th Art. of the Coutume de Paris— //c/(i, that such plea was insufficient as not containing an affirmation of pay- ment or the offer of payment. Barheau v. Grant, 4 L. C. J. 2!>7, S C. 1860. ' ! OF CONTESTATION UPON THE MERITS, ART. 186. 119 22. Where a buyer, who is sued for the purchase money, pleads fear of eviction or trouble in his possession, be must do so by peremptory excep- tion and not by dilatory exception. Matthieti v. Vigrieau, 6 R. L. 5U, S. C. 1875. 23. In an action for the price of land sold, the defendant may plead that he is troubled or molested, but that he nuiy be troubled is not a ^ood plea. I)ubi'\. Miville, .S Rev. de Leg. 70, K. B. ; Morin v. Arcaiid, 3 Rev. de L6«. 70, K. B. 1819. 24. The non-performance of a stipulation contained in a charter party which does not amount to a condition precedent cannot be pleac' d as an answer to an action of imlehitatus a»Hump$it for freight. Coltmin v. Hamilton, 2 Rev. de L6g. 74, K. B. 1819. 25. Where action is brought against a purchaser for the price of sale, and he pleads grounds for the rescision of the contract, he must not only pray for the dismissal of the action but also that the contract be rescinded. Frujon v. ItimeU, 5 R. L. 559, S. C. 1874. 26. That a deed was fraudulently obtained cannot be pleaded as matter of defence ; it must be rrscinded by an incidental demand, and the pro- ceedings susi)ended until such demand is determined, liradleij v. Blake, 3 Rev. de Log, 38. K. B. 1812. 27. Where an action is commenced by part instead of the whole firm the defendant by exception pereniptoire temporaire may plead it or avail himself of the objection at the trial. Chinic v. Gerrain, 3 Rev. de Leg. 197. K. B. 1820. 28. If ii appear by the evidence that the plaintiff has a partner who is not a party to the suit in an action on behalf of the partnership the court will dismiss the action tjwint a prihient. liodger v. Chupman, 3 Rev. de Lug 352, K. B. 1817. 29. A defendant may by exception invoke the nullity of the title set up by the adverse party without proceetling directly by action or incidental ilcinand to rescind such title. The Principal Ojficers <>/ Artillery v. Taylor ,t at., 1 L. C. R. 481, Q. B. 1851. 30. Where the parties had agreed to submit their differences to arbi- trators, and to abide by the decision of the latter under a penalty of SlOO, and one of the parties, after the award was uialr it .s('(/. (Ca.) 4H. //,/(/, on founded on a validity of the iiauth V. Magui OF CONTESTATION UPON THE MERITS, ART. 186. 121 was of unsound mind — Held, raveraing the judgment of the court below, that Buch cause of nullity could be pleaded at any time by exception, and that neither an incidental demand nor direct action was necessary for that purpose. Hakro v. Dele»derniern, 2 L, C. R. 826. Q. B. 1852. 41. A universal UHufructuary legatee against whom a creditor of the succession sets up the value of the revenue of his legacy cannot demand the details of such revenue which he himself alone can know, and it is sufficient if the creditor in such case gives some approximate idea of its value. DegtimauvilU' v. ToitHijinant, 1 Q. L. R. 39, 8. C. 1874. 12. Damages cannut be pleaded by way of compensation, but where compensation can bo urged it should be pleaded by peremptory exception. Bruiiet V. Lee, 3 Rev. de L6g. 197, K. 13. 1812. 43. Where compensation is pleoiled it must be specially invoked, and the conclusions of a plcit to that effect must be 8{)ecial, and aak that the com|)oii8ation be aedared to have taken place. (Jutji/ v. iJitcluHUiiij, 1 L. C. R. 178, Q. B. lHr,l. 14. A plea of i)erpetual exception, by which it is alleged that the sum claimed Sjv the plaintiff is set off by a sum claimed by defendant for damages suffered by him in con8e hi ^^ ' U i < 54. While an action for tithes was proceeding at enqu()te the plaintiff filed, af. ."chibit, 1 1-1 certificate of appointment from the bishop, and the defenda.it, taking lulvantage of the information he had gained thereby, and without leavo of the court, filed a plea, puin darrein continuance which was, on motion of the plaintiff, rejected from the record, and the judg- ment rejecting it was subsecjuently confirmed in review. Duhault v. Vaeand, 17 L. C. R. 178, K. (.'. R. 18(50. .'>;".. Payment and tender must be pleaded by way of perpetual (leremp- tory exception. Forhex et al. v. Atkinxon, P. R. 40, K. B. 1810. 5(i. A plea of payments alleged to have been made at different periods which does not show the dates and amounts of such payments is bad, and will be dismissed on demurrer. Leu Dames Jieligieuses Urmlinet de Quebec v. Pt-rry, 10 L. C. R. 191, S. C. 18«!0. r OF 00NTB8TATION UPON THE MERITS, ART. 186. 128 67. An agreement between a debtor and hia creditor that they will accept a compotition in Hatisfaction of their reHpective clebta may be pleaded to an action by one of the creditors for hia whole debt, if he have received the compoaition. Frmcr v. Miutroe (ti Oui»h signed by one of the defendants, who styled himself trustee of the eotnpany, and the defendants urged that they were a corporation duly incorporated, of which they made proof — Held, that they had a right to prove so under the general plea, and the action was dismissed. Kdmoudntoii et ul. v. Vliildn et «/., 2 L. C. J. 192, C. 8. 1858. » i'2 ! 5 <; ^,■'•it: I ! I m OF CONTBHTATION UPON THE MEOITM, ART. 186. B'3-^ if j^t'M EljMti-Wj^ K*' sMP p J 1 If 'f I'l ' t tig. ''v# ^.^ tfcfi© Aft. In an nction for (iiiina^eH oooaHionud to a wi>Mi-i 1)y tho dufondantH' veHnel, to wliich thu dufonilantH pleadvd tli« Ki'i>' > J (hmuo- Ili-lil, that tlu' abMJnce of roMponHibilitv on thu part of llm inaHtei, thuro bvin^ a pihjt on l)oard, could b« invoked without l)t'in« Mpfoially ploadod Lnmpmn v. Smith, }» L, ('. W. U'.0, (,) H. IHRH. «17. A (k'fcndiuit ciiiinot bo allowed to pload sjiecially that which amountB to no more tluiii tho Kcnoral Immuv, b'vrlivK if ul, v, Atkinnm, 1'. u. 10, g. i\. iHio. 68, An exception which unswcrH only portiouH of a declaration iH bad, and will be diHniiHHed on motion. lUixtitn v. l.'Eriijir, \ \,.C\\, \\i\, H. C. 1854. (I'.l .\ pkadiuK that [h Kood in part and bad in part Khould Iw rejected on deuuurer. Miiln- v. lioiinuois ,( Holhnid. 17 L. C .1. ir.H, K. C. 1H71. 70. Kach distinct pleading; innst l>e followeil by a concluHion, V. tlautliiei; IH h. C. ,1. ICH, H. C. lH(i!» Jiilinxiin 71. Heveral defendants, though they have appeared He[)arately, but by tiie same attorney, may join in and file but one plea. Arm lotiilt v. IIuh- mail rt III.. 1 R. ('. *217, S. C. 1871. 72. A plea cannot lie rejected on motion becauHc it contains matters foreifjn to tliose in liti),'atioii. (lucrii-munt v. U'illm'niti i, •! U. Jj. 12, H.{'. 1H70. 73. Tlie ('mirt will not allow a trivial irref,'ularity m the service of a copy of a plea to prevail, if it ai)pear that t lie pliiiiititrs attorney wus aware of its contents. CmiiUiinl \. Exiliaiiihniiit, .'i llev de l.t)4. \WA, K. B. IHIH. 71 Woi'ils ill II plea, chiiij.iiii^' (jeiieiiilly ^jross cn-di-^ :iii(l oiiiissiniis in plaintiff's aeccimi. witlmut specifying clearly what those ( rrors and omissions ;ire, will, uii plaintift's nidtiou, hi- ordered to lie Hlrnck out. I.imiithi \. J'lii' Mount lini/'il I'unnaiunt liuildimj Sm-iiUj, 20 \t. C. -J. 2.17, S. C. lH7(i. T."). Ill 11 pelitm-y acliwii ///■/(/, that the plaintifT could not succeed upon a title whicii hml noi hien plea I,. (). .1 7H and 12 J.. C. K. :h. (,) H l.-^C.H. 7(). Where the defcmlnnt in a petitory action pleaded that before the date of the plaintifT 's title lie had been in [)oHsession of thu lot aw proi)rietor for more than ten years, and set up no title, the plea was luld to be irrej^ular and iiiHufticient in law, as failing to uUene with suflicient certainty an adverse title on his part onijuiHle li Ktllam, 10 L. C. 11. 22, y. IV IH'A). OF CONTEflTATTON UPON TIIK MEUITB, ART. 186. 12R 77. In n iMititor.v action, pleiiH by tlio lUifoiulant HottiiiK up title to the lot in iliMputo, by an iiiHtrninont in favour of binmelf and another, wore hold to ho v^ood pivuH, althoiiuh thu |H)wor of attornoy undur whicli thu tithi waM uonvoyod waN in one pl«a to the nauw effect, and that, in default, the plaintiff be |)ermitted to proceed to trial ami judj^ment on the isnues raised and perfected by the jjotieral isHUc and the Htatomcnt of facts. Motion granted. Tli,- City Ituiik v. Tin- Motitmil Jlniik, '2 R. C. '2H7, S. C. 1«7'2. Hi, When the isHue is immaterial or informal, the (!ourt will order a repleader, h'orhr^ v. .«//./»i.i(i;/, H Rev. de. Le>4. "JOt), K. H. ISIO. A repleader may Ihj ordered at the trial if the iHwue taken in there found to Im.' immaterial. I'lu'ilh- v. Fiiurlur, '.i How do Ldn,. '200, K. B. 181H. H*2 Where the defendant to an action on a bill pleaded the want of stamps as reipiiriid by law, and the |Jaintiff was allowed to aftl.x Btanipu on payr out oi co..':" the defeiulant waH allowed to pleail di' novo. I.emf*urindent having obtained a judgment against appellant in the latter'B capacity of tutor to the ProuLx minora for £1 Os. Ud. and costB, I I I , I !;1 I ''■\i 126 OF CONTESTATION UPON THE MERITS, ARTS. 186-137. Wi 'lis ^t i" appellant obtained the annulment on certiorari of the jndgment by the Circuit Court. Respondent then sued appellant for damages before the Circuit Court, such damages consisting of the costs of iihe certiorari to which respondent had been condemned because appellant had falsely sworn that he was not tutor to the Proulx minors. The damages also included the amount of the debt which had been lost for the same reason. Held, that the judgment on the certiorari being ren adjudicata between the parties, respondent could not by an action for damages, renew the same contestation and seek a judgment ordering appellant to refund in the shape ot damages the costs to which he had been condemned by a judgment of final resort, and the amount of his debt. Boisclair v. Lalan. cette, 3 L. N. 266, 1 Q. B. E. 289, Q. B. 1881. 86. A missing original plea was replaced by the plaintiff's copy in Fon, tainev. Montreal Loan d- M. Co., 3 L. N. 38. 24 L. C. J. 160, Q. B. 1879. 87. A defendant who L:.b pleaded the general issue to an action for in- fringement of a patent cannot prove the invention was not new. Baril v. Dionne, 3 L. N. 86, S. C. 1879. 88. A precarious holder who is sued by petitory action and pleads the general issue, cannot at the argument attack plaintiff's title. Lemge v. Prudliomm, 26 L. C. J. 213, S. C. R. 1882. 137. All pleas to the merits, whether by exception or otherwise, must be tiled within eight days after the ap- pearance, except in the cases otherwise provided for in the preceding section. If they are not filed within such delay the adverse party may demand them, and if they are not filed within the three next following juridical days, the prothonotary may grant the plaintiff a certificate of foreclosure. C. S. L. C. c. 83. s. 12, § 2. 1. Delay may be given to a defendant to plead if it api^ear that he is under a criminal charge which may V infiuenced by pleading within the required delays. Burn v. Fontaine, 15 L. C. J. 144, S. C. 1H71 ; Lewis v. Gerhardt, 12 R. L. (>70, S. C. 1884. 2. If a rule to plead expires in vacation, a demand of plea must be made before a foreclosure can be tiled. Lee v. Whitfield et al., 3 Rev. de L6g. 303, K. B. 1812. 3. A demand of plea, though irregularly made, cannot be rejected from the record on motion, us it does not affect the case, and the recourse of the defendant will only arise on the subsequent proceedings. Arnistrony v. Barthe, 1 R. L. 49, S. C. 1868. OF CONTESTATION UPON THE MERITS, ART. 137. 127 4. The prothonotary cannot grant foreclosure of the defendant in certain oasea. Tracey v. Isaacson et al., 14 L. C. J. 236, 8. C. 1870. 5. A defendant who has been foreclosed from pleading within the ordinary delays, and who moves to be relieved from such foreclosure, must produce with such motion an affidavit in support thereof, and also the plea which he wishes to file. Corbeil v. D-umoucliel, 4 B. L, 389, S.C. 1872. 6. A defendant foreclosed from pleading to a writ of saisie arrH after judgment will, on special motion, be allowed to answer the plaintiff's contestation of the declaration of a garnishee made in obedience to such writ, if he have interest in the matters raised by the contest. Kingston V. Torrance and Torrance v. Kingston, 9 L. C. J. 20, 8. C. 18C4. 7. A defendant who has been regularly foreclosed will not be allowed to come in and plead when the plea offered is not considered good. The Corporation of Montreal v. Munson, 1 L. C. L. J. 100, 8. C. R. 1865. 8. The court in its discretion permitted tiie defendant to file his plea after foreclosure on payment of costs where the plea was ready and deposited on the day of foreclosure. Sheridan et al. v. Bourne, 2 L. C. L. J. 40, S. C. li. 1866. 9. On motion of plaintiff to reject a plea filed half an hour after fore- closure and before any further procedure had been had — Held, that under such circumstances the motion must be rejected and the plea allowed to stand, (hfell v. O'Brien, 4 L. C. J. 122, S. C. 185'J. 10. Where the plaintiff, aft< r the delay for pleading hac" expired, took judgment in vacation before the protl'Cwutarv without u,i.y formal demand of foreclosure, sucli as is required by 12 Vic. cap. 38, sec. 2b — Held, that the prothonotary had not the power to grant a judgmenf. and it was accordingly set aside. Beaufield et al. v. Wheeler, .5 L. C. J. 21, S. C. 1860. A foreclosure stating that " dej'endunt forecloses , defenda.it " is null. Ihi i. 11. The delay of eight days runs from the date of the judgment on a preliminary plea where one has been filed ; and where a denuiud of plea was made on the day after tlie judgment on the preliminary plea was rendered, and a foreclosure was entered seven clear days thereafter, the proceedings were held to be null. Dauphinais v. Bibeau et al., 11 K. L. 498, 8. C. R. 1882. 12. Where a defendant, in an action demanding an account of his administration of real estate under a special agreement, pleaded first, that he had never been put in default to account, and had always been ready to do so, and fylod an account with his plea ; and {i-.riher pleaded hat he owed nothing under the alleged agreement — Held, that the account i r ^ '! ! 128 OF CONTESTATION UPON THE MERITS, ARTS. 137-138. if: if ft ■i , fyled with the pleas would not be rejected on motion, as irregular or premature, uor because it contained items having no apparent connection with his administration,— that question properly coming up on a contesta- tion of tb« account. Dorion v. Dorion, 7 L. N. 397, M. L. R. 1, Q. B. 05, Q. B. 1884. 13. A foreclosure granted before the expiry of throe juridical days will be set aside as premature, but without costs. liun-ouijhx v. Berthelot ct at. 2 L. N. 385, 10 R. L. 3, 24 L. C. J. 23, S. C. 1878. 14. When the eighth day fell on a Sunday, a demand of plea made on the d.iy following was rejected with costs. Brown v. Manor, 6 L. N. 122, S. C. 18.S3. See Art 24, antp. 15. A plea filed by defendant half an hour after foreclosure has been entered by tha prothonotary will not be rejected on motion to that effect made by the plaintiff, though the latter support his motion by an affidavit that the defendant has no defence to his action, and thai the pleas are sham pleaa, and though the defendant does not resist the motion by counter affidavit to the effect that the pleas are filed bond fide. Molmn ,'t al. V. 11,'uter el al., 4 L. C. J. 299, S. C. 1860. See Art. 4t)3, pout, as to " Long Vacation," and Art. 3, ante. IHH. The same delay of eight vlays is allowed the plain- tiff to answer the pleas, unless such answer is in the nature of a declinatory or dilatory plea, or of an exception to the form, in which case the delay is four days only, pursuant to article 107. Ihid. s. 12. 1. A general answer to a plea is sufficient to put the defendant to a proof of the allegations of such plea. .S7. John v. Di'lUle ft ul. 2 L, C. R. 150, S. C. 1851. 2. Allegations which forin the chief support of the action must be set out in the declaration, and cannot be pleaded by way of special answer to defendant's exception. McGoi'ij v. (Irifiin, 1 L. ('. J. 39, 8. (-. 1H.'>(; ; and such answer will be rejected on motion. Lu Cii- dc Pret it deCr/ilir h'oii- cier V. Barth,\ 12 R. L. f)37, S. C. 1882. 3. The immovable property seized was claimed by the opposant in vir tue of the will of her deceased husband. The plaintiff pleaded that, 8ucse(iuently to the date of the will, the testator and the op[X)8ant by liini duly authorized had made donation of the protrerty seized to the defen- dant. The opposant replied siKJcially that the deed of donation was, sub- sequently to its execution and prior to the death of her late husband, OP CONTESTATION UPON THE MERITS, ART. 138. 129 resiliated by consent of all the parties thereto — Held, that such special answer was not demurrable on the ground that it invoked the resiliation as a title to the property, but the object of the allegation was to show that, in consequence of the resiliation of the donation in question, her title under the will had revived. Romaine v. Dugal <£• Jobin, 8 L, C. R. 209, S. C. 1857. 4. The plaintiff cannot, by special answer to a plea founded upon a deed to which he is a party, and which deed would defeat his action, set up grounds of nullity against such deed, an . ask the rescission thereof, as the nullity of the deed should have been asked by the declaration. Martin et vir v. Martin, 7 L. C. J. 293, S. C. 1868. 5. Held, that the plaintiff, in alleging as a special answer, that part of the right which he claimed came from his deceased wife in virtue of her will that he invoked, did not add anything to his original demand or change the nature of his action, but only indicated the source of a right of which he alone was seized at the institution of the action. Dubeau v. LaFabrique de Deschambeault, 2 Q. L. R. 6, S. 0. 1808. 6. An exception to matter pleaded by exception may be filed even under the Ordinance 25 George III. cap. 2, sec. 13, Faquet v. Gaspard, 3 Rev. de Leg. 40, K. B. 1811. 7. If by special replication the plaintiff admits the facts which the exception sets forth, he may, under the Ordinance of 1785, rebut the facts which he so admits by pleading affirmatively such other facts as in law will avoid them, and upon these, the issues may be raised as the Ordi- nance directs. Faquet v. Gaspard, 3 Rev. de L6g. 198, K. B. 1811. 8. Where the plaintiffs' special answer after amendment was found to be contradictory to their declaratinii —i/c/i/, that the action on that ground alone must be dismissed. Gaiilt ft al. v. CottJ, 12 L. C. R. 92, S. C. 18(52. 9. Where the defendant in a jHitii > iction aibges a possession anterior to the deeds set forth in the declaration, tlie plaintiff may, in his answer, invoke his chain of title back to the grant from the crown. Robert v. Leblanr, 11 B. L. 493, S- C. H. lS8-->. 10 In an action by a rarj ; 'pality for encroachments on a public road, wh'^re the defendants pleaded that the encroachment in (juestion was committed by persons possessing the proper,' y on the other side of the road — Held, on demurrer, that the defendant could set up that the encroachment was made by third parties. The Corporation of St. Jean lUiptiMe, hie D'Orleanit, v. Lachance, Hi L. C. R. 315, C. C. 1866. 11. In the Circuit Court the defendant can foreclose a plaintiff who neglects or refuses within the delays prescribrd to file answers to hia pleas, after demand thereof duly made, and can thereupon inscribe the 9 F.C.C.P. ■w H> > S'^ 'I I . ; ^ 130 OF CONTESTATION UPON THE MERITS, ARTS. 138-139. case upon the role for enqu^te on his plea, declare that he has no witnesses to examine, proceed to hearing, and obtain judgment ex parte. Meade v. Battle, 5 L. C. R. 68, C. C. 1854. 12. Held, on motion, that one general answer cannot be pleaded to four separate exceptions. Bradford v. Henderson, 6 L. C. R. 488, S. C. 1850. 13. A plaintiff who has failed to file an ans^ver to an affirmative plea is not under 23 Vic. cap. 57, sec. 37, in consequence of that failure, to be considered in the same condition as he would have been had he been formally foreclosed under 12 Vic. cap. 38, sec. 85, from answering such ple.-i. LaGrnuge v. Carlisle, 8 L. C. J. 182. Q. B. 18G3. 14. An answer in law does not lie to a plea denying the allegations of fact. Li/i'ch V. Laframboise, 5 R. L. 547, C. C. 1874 ; Banque Jacquci Cartier v. Ci^te, 9 Q. L. R. 76, S. C. 1883. 15. And an answer in law based on new facts which require evidence cannot be heard before the hearing on the merits. lb. 139. A like delay of eight days is allowed for the filing of any other pleading necessary to complete the issues. Ibid. 1. A special answer to wl;ich no replication has been filed within the delay fixed, may be attacked by motion, and '■ertain allegation therein be struck out. Delbar v. Landa, 21 L. C. J. 247, 1 Legal News, 212 S. C. 2. A special answer cannot be filed to a si^ecial answer without leave of the court, and where such answer has been filed and been denmrred to, and the demurrer has been inscribed for hearing, the court will discharge the inscription and order a repleader. Hart rt ttl. v. The Sorthi'ru Innur. ance Cumjmnij, 18 L. C. J. 18!), S. C. 1H73. 3. Where the plaintiff after plea replied by general answer and replica- tion, and the case was inscribed for eiujufite by consent of parties : Hfid, that the defendant had thereby waived the necessity of replication to the general answer of plaintiff. Chrennhitldn et <»/. v. Gauthitr, •> L. V J. 288, C. C. 1858. without the 4. But where there was no consent on the part of the defendant- that the subsequent proceedings would be set aside. lb. -Held, 5. On a motion by the plaintiff to strike out a special replication by the defendant to a special answer of plaintiff— i/f/(/, that sucli special matter therein was irregular, and would be rejected where such matter could have been pleaded by the plea of defendant. Torrance v. CluipiiKin, et «/., 5 L. C. .T. 75, S. C. IHliO. OP CONTESTATION UPON THE MERITS, ARTS. 139-140. 131 6. A special answer alleging (in answer to an exception whereby a woman sued as a widow pleaded her re-marriage prior to the suit) that the debt was contracted during her widowhood, and that she is separated as to property from her husband, will be rejected on answer in law. Dynes v. Falardeau, 6 Q. L. R. 348, C. C. 1880. 7. In an action to revendicate that part of a succession belonging to the community existing between plaintiff's faihet and mother, to which she was entitled as heir of her father, plaintiff was held not to be obliged to allege in the declaration her renunciation to the succession of her mother who had sold the property to defendant, but might do so by special answer. A special reply to a special answer cannot be filed without leave of court, but if, on the motion to reject it, it appears that such reply is necessary to place all the parties' pretensions on record, it will be allowed to remain, but the party filing it must pay the costs of the motion. Quay V. Caron, 7 Q. L. R. 217, S. C. 1881. 140. After the expiration of these delays, the party fail- ing to file a pleading is by law foreclosed from doing so without the consent of the opposite party, or leave of court. 1. A motion to be allowed to plead will only be granted upon produc- tion of a plea with the motion. Scheffer et ux v. Fautetu, 5 R. L. 351, S. C. 1873. 2. A defendant who has been foreclosed from pleading within the ordinary delays, and who moves t<. be relieved from such foreclosure, must produce with such motion an afiidavit in support thereof, and also the plea which he wishes to file. Corbeil v, Duviouchel, 4 R. L. 389, S. C. 1H72. 3. The judgment a quo rejecting a motion to be allowed to plead after foreclosure where no plea was tendered, was strictly correct, but as the actio.i was for damages it was intimated that on a prosier plea being tendered, leave to plead would be granted. Corporation of PruicevUle v. I'acaud, 3 L. R. 298, Q. B. 1880. 141. Such foreclosure does not, however, take placr without an order from the court if the opposite party has not filed with his pleading, in the manner prescrihed, the exhibits or written proofs upon which it is founded ; and if such exhibits and written proof are not filed with such pleading, they cannot afterwards be filed without the con- sent of the opposite party or leave of court. i^il ''m. 132 OF CONTESTATION UP"!! THE MERITS, ARTS. 141-144. K "* r .'.-.-^^ A judge may, in term or in vacation, extend the delay for filing such exhibits or written proofs. C. S. L. C. c. 83, s. 180, § 3. 1. An application by the defendant to enlarge the delay to plead, presented after act of foreclosure granted, cannot be entertained by a judge while the foreclosure exists, and notice of such application, served on the plaintiffs before the expiration of the delay to plead, does not suspend t':e plaintiffs' right to obtain foreclosure. Miller et al. v. McDonald et al., 8 L. C. R. 303, S. C. 1868. 2. Where a defendant set up by af&davit that it would be necessary for him to search for papers in several registry offices, and that such search would occupy him six months, to the best of his belief, without whicli delay he would be unable to prepare his defence in a proper manner— Held, that he was entitled to a delay accordingly to plead. Bell et al. v. Knoichon et al., 13 L. C. R. 232, «. C. 1863. Bee Art. 103 ante. 143. When an amendment of any pleading has been allowed, the delay to answer such pleading is reckoned, ac- cording to the foregoing rules, from the day on which the amendment is made and served, without any demand of answer being necessary. 1. A copy of an amended declaration mupt be served upon defendant before he can be called upon to p'ead. Fa'r v. C'ansils et al., 3 L. N. 338, S. C, 1880. 143. When the defendant is foreclosed from pleading, the plainti£f may proceed ex parte, and may, if the ease admit of it, proceed to judgment, according to the provisions contained in articles 89, 90, 91, >)2 ar-.d 93. 144. [No particular form of words is required in any pleading ; but every fact, the existence or truth of which ia nv>{ expi\issly denied or declared to be unknown, is held to be admitted.] C. F L. C. c. 83, ss. 76, 116, § 3 ; C. P. L. 327. h A woman sued as the widow of A. B. admits her marriage and t'^e death of her husband if she does not plead by exception to the character and quality in which she is &ued. Geggerou v. Canac, 2 Rev. de Leg' 334, K. B. 1820. OF CONTESTATION UPON THE MERITS, ART. 144. 188 2. Where the defendant by his exception admits his signature to a note of hand, bat pleads a term of payment, it is not necessary for the plaintiff to prove the defendant's signature to the note, notwithstanding the exception has been dismissed and a defense en fait filed. ValtUrea v. Roy, 3 Rev. de L*g. 38, K. B. 1820. 3. In an action to recover the value of the use and occupation of a certain property, in which the plaintiff replied specially to the defendant's plea of payment that true it is '-that money was paid, as alleged by "defendant, but not at the request of the party deceased, but was paid by "defendant merely to place such party, who is his daughter, on the same '' 'ooting as his other children" — Held, that the admission contained in Guch answer could not be divided, and that the plaintiff was entitled to judgment Lefebvre v. Demontigny, 2 L. C. J. 279 & 9 L. C. R. 233, S. C. 1858. 4. And in an action brought against the City of Montreal by an asses- sor for the value of his services — Held, reversing the judgment of the court below, that the plea in the cause which admitted that the sum of £107 18s. Id. with interest and costs, was due to the plaintiff, praying acte of a deposit of that sum in court, and also praying that the plaintiff's action for the surplus be dismissed entirely, entitles the plaintiff to a judgment for the sum tendered. Boulanget v. The Mayor etc., of Montreal, 9 L. C. R. 368, Q. B. 1869. 5. An admission in r ctum in review in the nature of a <{^i8temen( binds tlje party producing it. Garden v. Lennen, 2 R. C. 232, S. C. R. 1872. 6. A plea of payment or compensation is a sufficient admissi'^n of the plaintiff's demand, but a plea of prescription alleging payment, and accompanied by a defense en fait, is not such an admission. Thayer v. Wilscam, 9 L. C. J. 1, Q. B. 1861. 7. The allegations of a declaration founded on notarial deeds of sale seeking to fasten a personal liability upon defendant toward plaintiff cannot be proved by a declaration made by defendant in another deed to a third party, and no lien de droit is thereby created between plaintiff and defendant, pylleticr v. liattelU; 18 L. C. J. 75, S. C. 1874. 8. Particulars of payment or other defences may be required in the same way as particulars of the demand. Lachance v. Lachance, 9 Q. L. R. 368, S. C. 1883. 9. The failure by plaintiffs to answer a plea denying that the proper formolities had been observed in respect of the making of the calls on shares sued upon, cannot be considered as an admission of the allegations of such plea. Stadacona In*. Co. v. Trudel, 6 Q. L. R. 31, S. C. R. 1879. ( ''. i I ■vwm 134 OF CONTESTATION UPON THE MERITS, ARTS. 144-145. 10. It is aufficient in any pleading to allege the facta upon which the party intends to rely in plain and concise language, to the interpretation of which the rules of construction applicable to such language in the ordinary transactions of life may apply, no particular form of words being necessary to express the same. Halcro v. Delendeniient, 2 L. C. B. 825, Q. B. 1852. Vide Art. 20, ante. 145* Every denial of a signature to a bill of exchange, promissory note or other private writing or document upon which any claim is founded, must be accompanied with an affidavit of the party making the denial, or of some per.sou acting as his agent or clerk and cognizant of the facts in such capacity, that such instrument or some material part thereof is not genuine, or that his signature or some other on the document is forged, or, in the case of a promissory note or bill of exchange, that the necessary protest, notice and service have not been regularly made, stating in what the irregularity consists ; without prejudice, however, to the recourse of such party by improbation. C. S. L. C. c. 83, s. 86, § 2. In the case of promissory notes, or bills of exchange payable at a particular place, they are presumed as against the maker or acceptor, to have been presented at that place at maturity, unless the exception founded upon such want of presentation is accompanied with an affidavit that, at the time they became due, provision had been made for their payment at the specified place. The denial of any document specified in article 1220 of the Civil Code, must be accompanied by the giving of secur- ity for the costs of the commission required to obtain the proof of such document. In the case of paragraphs 5 and 6 of the same article, the denial of the original deposited, must moreover be accompanied by an a^idavit of the party making the denial, stating that he doubts and does not believe that the original in question has been signed by the person or executed in the manner therein mentioned. The f OF CONTESTATION UPON THE MERITS, ART. 145. 135 party wishing to make use of the copy tiled is then bound to prove the original, and for this purpose the person who has charge of tne original is bound, upon the order of a judge, to deposit it in the court in which its genuineness is contested ; and the prothonotary is bound to furnish hiui, at the expense of the contesting party, with a copy thereof cer tilled by such prothonotary. The original, the genuineness of which is thus denied, may be annexed to the commission required to obtain its proof. 1. A tUf'emie en fait to an action on a pinrnissory note will be rejected on motion, if iinsupiwrtecl by aftidavit. Laprii^e v. Muthot, 4 Q. L. R. 3"28, S. C. 1877. Contra: Mechanicn' Jtank v. Scale, 20 L. C. J. lUO, B.C. 187t> ; lUniquf Jacques Cartier v. CdtJ, 9 Q. L. li. 76, S. C. 1883. 2. The defendant pleaded that the note sued on had been obtained from him by surprise and false representations, and for insufficient con- sideration — Held, that he was not bound to produce with such plea an affidavit under C. 8. L. C. c. 83, h 80, McCarty et al. v. Barthe, L. C. J. 130. 3. The defendant pleaded want of notice of protest, but produced no aflidavit in sup^wrt of such plea — Held, that the action would be main- tained, notwithstandinfj that no protest had been given. The Bank of Upper Camuhi v. Turcotte, 15 L. C. R. 270 ; Bank of America v. Copcland et al., 4 L. N. 154, 8. C. 1881. 4. The defendant pleaded want of consideration — Held, that he was bound to produce with such plea an affidavit under C. 8. L. C. c. 83, s. 86. Ktllif et al. V. O'Connell, 10 L. C. R. 140. 5. If a party who is summoned to admit or deny a signature appears and hies a dcfeme en fait, that is a denial of the signature. Hart v. Burn, 3 Rev. de L6g. 38, K. B., & Perrault v. Girard, 3 Rev. de L6g. 190, K. B. 1820. 0. In an action against the endorser of a promissory note the defendant pleaded that the signature which purported to be his was not written by him or with his knowledge, consent or authority, and that he was not aware of the existence of the promissory note until notified of the protest. At the hearing it was urged by the plaintiff that he was entitled to judgment as the affidavit was not in the form required by law. The defendant thereupon made a motion that the dJUWre be discharged, and that he be permitted to file another affidavit. This motion was rejected, I mi li t I m 186 OF CONl K8TATI0N UPON THE MEU1T8, ART. 146. WW ill anrl judgment went for plaintiff, but on appeal — Held, that tli athclavit was siillicient and the allegations of the plea being proved, the judgment of the court below was reversed, and judgment mt for tho ; ]>{)ellant. Browvt V. Doit, 11 L. C. R. 373, Q. B. & 10 L. C. R. ii'i, S. C. 1861. 7. Whpre a defendant to an action on a f r-imiBsory note pleaded want of noti' ijf proutBt, and the plaintiff cont .u!' ;i that the plea should be dismissed on tiie ground that it was filed Atthout the affidavit accompany- ing it nnder sec. 87 of the Act of 1857 — Ilehl, that as the certificate of the not ry showed that the notice he rved was utterly useless, an affidavit such as provided by the statute was u> necessaryi Ilobb* in re et al, v. Harteetal., 5 L. C.J. M,C.C.18&). 8. Where to an action against the endorser of a promissury note by the endorsee, the defendant pleaded that no sufficient protest of the note had been made, and, moreover, that at the time he endorsed it, the endorsee, that is the plaintiff, verbally agreed to accept it on the credit of the maker alone without recourne against defendant — Held, reversing the judgment of the cour' below, that although the pr< itest appeared to be insufficient on the face of the note, it would, nevertliuless, be held to have been regularly and legally made, unless with the >ilea an affidavit had been produced that such notice was not regularly made. Chamberlain v. Ball. 5 L. C. J. 88 & 11 L. C. R. 50, Q. B. ISOO. 9. In an action on a promissory note, whore want of notice of protest was invoked — Held, that the party pleading' such want of notice was bound to produce therewith the affidavit re(iiiired by 20 Vic. c. 44, s. 87, Ryan el al. v. IHalo, 12 L. C. R. 8, Q. B. 18(51. 10. An action was brought in Montreal on a promissory note dated in Montreal but really made in another district — Held, that a declinatory exception would lie, even though not accompanied by affidavit, and the fiction was dismissed. Hudon v. Champagne, 17 L. C. J, 45, S. C. 1872. 11. Where defendant pleaded " that the signature to the note was not his signature," it was held insufficient, as there was no denial of the note being genuine and no assertion of the signature being a forgery. Milloy V. Farmer et ul., 2 L. N. 182, 8. C. 1879. 12. Where the note on its face appears to be properly stam^^ed, and it also appears that t^>e clamps were properly effaced, the defendant (even though he have j/roduced an affidavit,) must prove the irregular affixing of the stamps which he has pleaded. National Im. Co. v. St. Cyr, 5 Q. L. R. 268, 8. C. 1879. 13. Where the figures on the stamp indicate the month and year but not the day of the affixing thereof, the action will be dismissed. Du/reane V. Duplessis et al., 5 Q. L. R. .S89, 8. C. R. 1879. See Fausse v. Brien, 3 L. N. 213, S. C. 1880. OF CONTESTATION UPON THE UERITB, ARTS. 146-146. 187 14. Stamps were allowed to be affixed in appeal in Cimon v. Thomp»nn, 8 L. N. 104, Q. B. 1880 ; La Siw, de Comt. du Canada v. La ISanque SuthnaU 8 L. N. IBO, Q. B. 1880. 15. When defendant pleads that the note was not stamped at its date, he must file an affidavit or declaration under oath. Deiilet» v. Trahan, fi B. L. 53, S. C. 1878. 16. No affidavit is necessary to support a plea that what ia written over the stamp is untrue. Banque Jacque* Cartier v. CdtJ, i) Q. L. R. 130, 8. G. 1888. 17. Where two personn merits, they cannot aft not the sifpiature of davit. DMj et at. v. i .^ ^iii'd jointly on a writing, plead together to the Is urge that the signature to the writing is If both, especially in the absence of an at** I- ^ 405, Q. B. 1884. 146. When a i at ty has pleaded incompatihle or contra- dictory grounds [in the same plea,^ he may he required hy the opposite party to choose between such grounds or plead anew, and in default of such choice, the incompatible grounds are held to be of no effect, and are set aside. 1. Where a plea to the merits contained allegations &iv\ conclusions ii'cnuHistent with one another, and belonging to two differi ut classes of pleaa — HtUl, on demurrer, that those which did not proi^erly belong to the plea must be disniissed. Chapman v. Simmo, 8 L. C. J. 4*2 & 14 L. C. R. 103, S. C. 1803. 2. In an action against a wifo separate as to property by a grocer for necesHaries for family use — HiUl, that pleas of compensation and pre- scription are inconsistent with pleas of " never indebted." Klliot v. Grenier et MJ., 1 L. C. L. J. 91, 8. C. 1865. .S. In an action to be re-instated in a church pew (haiic patroiial) of which the plaintiff had been deprived by the Fabrique- Held, that there was no cumulation of the petitory with the possessory, in alleging, as defendants had done in their exception, grounds which referred solely and directly to the right of projjerty in the jiew in question. La Fabrique de Dexchambeault et al. v. Dubeau, 2 Q L. R. (5, Q. B. 1875. 4. A dc'/eiixe en fait and an exception of payment may be pleaded together, and are not contradictory, nor can the defendant be bound by admissions in his plea of payment. Leclerc v. Diirand, 1 Q. L. R. 382, C. C. 1873. '>r U'l :- v'fi);. (J IMAGE EVALUATION TEST TARGET (MT-S) ..^ ^^^ 1.0 I.I Ui§2A 125 ■" Ui 12.2 ^ us 1 70 IL25 1 1.4 m 1.6 Hiotographic Sciences Corporation ^^ :i>^ \ <^ ^ «» ^-''';* «^ 23 WeST MAIN STRifT WIBSTIR.N.Y. USM (716) S72-4S03 6^ <> 188 OP CONTESTATION UPON THE MERITS, ARTS. 146-147. 5. Where the defendant with a plea of payment filed also a d^feme au jbnds en fait, and the plaintiff made motion that he be held to choose between them, they were held to be not incompatible, and the motion was dismissed. Sarault v, Ellice, 3 L. C. J. 187, 8. C. 1869. 6. Held, reversing the judgment of the court below, that an affirmative plea, such as a plea of compensation, may be filed with the general issue. Clark V. Johmton, 3 L. C. R. 421, Q. B. 1853. 7. Under 12 Vic. cap 38, sec. 25, an exception to the form and an exception of payment cannot be pleaded at one and the same time. DuhJ V. Proulx d; Paquin et al., 1 L. C. R. 364, S. C. 1851. 8. The plea of general issue is incompatible with a peremptory excep- tion admitting the making of a promissory note, or the sale and delivery, but alleging payment of the same, and the allegations of such exception are not necessarily divisible, otherwise no issue can be raised upon it. McLean v. McCormick, 1 L. C. R. 3G9, S. C. 1851. 9. In a plea to an action of damages, where the defendant specially denies, and in the same plea avers affirmative matter which is not a justification, such matter will be struck out on motion by plaintiff. St. Jean v. Bleau, 1 Legal News, 211 ; 21 L. C. J. 37, S. C. 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. 1 Pig. 204. 1. Matter essentially necessary which is omitted is subject to a demurrer, but matter essentially necessary which is imperfectly stated is subject to an exception to the form. Warner v. Varran, 3 Rev. de L6g. 196, K. B. 1811. 2. An objection to the legality of an exception or plea cannot be urged but by demurrer containing the grounds against such exception or plea. Triulelle v. Allard, 2 L. C. R. 178, S. C. 1852. 3. The proper way of raising objections to the sufficiency of the description of the parties in plaintiff's declaration is by exception to the form and not by demurrer. The St. Lawrence and Ottawa Grand Junction Railway v. Frothinnham et al., 5 L. C. R. 140, S. C. 1865. 4. Prescription is not pleaded by demurrer but by peremptory excep- tion. Faucher v. Boulanger, 4 R. L. 388, S. C. 1872. 6. An allegation of foreign matter in a declaration, as also the absence of allegations necessary to give rise to the conclusions of the action, must be attacked by demurrer, and not by exception to the form. Demti- mauville v. Tousignant, 1 Q. L. R. 89, S. C. 1874. OF COKTESTATION UPON THE MERITS, ART. 147. 139 6. The want of authorization of a married woman can only be invoked by preliminary exception and not by demurrer. Antaya v. Dorye et al. 6 R. li. 727, S. C. 1873. 7. Where a demurrer was filed to an action on the ground that the declaration was irregular and contradictory, and that no amount of damage was specified as suffered by the plaintiff, and the plaintiff did not pray for the amount of such damages if any, the demurrer was dis- missed for the reason that the grounds alleged should have been pleaded by exception to the form and not by demurrer. Chevrefils v. Les Syndics de la ParoUnc de Ste. HJline, 2 R, L. 161, S. C. 1869. 8. Where the defendant was sued en qual., and pleaded by demurrer the want of such quality — Held, that such plea should be by preliminary exception and not by demurrer. Breault v. Barheau et al., 2 R. L. 130, 8. C. 1879. 9. Error at law must be pleaded by exception and not by demiirrer. Boston V L'Eriger, 4'L. C. R. 404, 8. C. 1854. 10. A plea which is good in part and bad in part should be rejected on demurrer. Miller v. Bourgeois (£ Holland, 17 L. C. J. 158 ; S. C. 1873. 11. And in an action for customary dower by children against a third holder, to which the defendant pleaded that the plaintiffs had not alleged in their declaratio;i that their father had not left in his succession property of sufficient value to satisfy their right of dower — Held, that such a plea could not be maintained, and that in order to set aside the action it was necessary to proceed by exception and prove that the father had left in his succession property of sufiicient value for that purpose. Lepage et al. v. Chartier, 11 L. C. J. 29, 8. C. 1866. And held, also, that such objection could not be made by demurrer but must be made by peremptory exception. Ih. 12. An allegation in a plea in law denying the allegation in the plain- tiff's declaration is bad, and must be struck out. Dubois et vir v. Stoll, 17 L. C J. 24, 8. C. 1872. 13. One count in a plea can be demurred to although the other counts may be held to be good. Routh v. McGuire <£■ McGuire et al., 10 L. C. R. 206, 8. G. 18G0. 14. When a law issue is raised by demurrer, the demurrer most be heard before the case can be inscribed for jnqu6te. Burroughs v. Bourget, 2 R. C. 238, 1872. Even where one of the parties made option to have the case inscribed for proof and hearing at the same time. Boucher v. Dubeau, 9 Q. L. R. 222, 8. C. 1883. 15. A defense au fonds en droit should be argued previous to the hearing on the merits, and where, by consent, the hearing of the^- demurrer was 140 OF CONTESTATION UPON THE MERITS, ART. 147. reserved until the hearing on the merits — Held, that it should be rejected but without costs. Roy et al. v. Oauthier, 17 L. C. J. 227, S. C. 1878. 16. In cases of demurrer founded on the fact that the registration of the conveyance which forms the basis of the action is not alleged in the plaintiff's declaration, the court has the right to reserve judgment until the parties are heard on the merits. De$barati et al. v. Lemoine et al., IS L. C. J. 81, S C. 1871. 17. But held, in another case, that proof avantfaire droit cannot, under the Ordinance of 1536, be ordered by the court. Hart v. Rose, 15 L. C. J. 133, S. C. R. 1871. 18. The parties may by consent proceed to proof before being heard on the law issues, and defendant, after having consented to the inscription for proof, cannot have the judgment disturbed because no hearing was previously had upon the law issues. Cimon v. Thonuon, 1 Q. B. B. 86, 1880. 19. A judgment on the merits leaving a demurrer undisposed of is bad. Hart v. Bote, 15 L. C. J. 133. 20. The use of the present tense haii, instead of the past tense had, was under the circumstances of the case held to be a good ground of demurrer. Stephens v. Hopking, 1 L. C. L. J. 93, S. C. 1865. 21. A demurrer will lie to a petition to quash a capias when the petition ie grounded on irregularities such as should give rise to exception to the form. Lemay v. Lemay, 3 B. L. 32, S. C. 1871. / 22. In an action of damages against several defendants, charged with breach of contract to convey a raft — Held, that the action could not be dismissed on demurrer because by the conclusions it was prayed that the defendants be condemned jointly and severally. Ranger et al. v. Chevalier et al., 5 L. C. B. 180, S. G. 1855. 23. A plea of want of notice of action is a general issue, and cb.isiut be touched by demurrer. McNamee v. Hime», 3 L. C. J. 109, S. C. 185y. 24. The plaintiff leased to the defendant for several ye^rs certain premises for the sum of £570, the receipt whereof was aoknovrledged, and action was afterwards brought to have the lease set aside as fraudulent, the plaintiff alleging that the only amount which he had ever received was £37, and that the contracts were usurious, and that there was lAion d'outre tnoitij, and the defendant pleaded by demurrer — Held, that the parties must proceed to proof before adjudication on the demurrer. Perrault v. Malo, 11 L. C. E. 81, S. C. 1860. 80. i filed w L. C. ] OF CONTESTATION UPON THE MERIT3, ABT. 147. 141 25. Where demurrer was brought to an action for the recovery of 9100, advanced in consideration of a transfer to be made by defendant, and the agreement was never carried out, the demurrer alleging that the action should be one for damages for breach of contract — Held, that the action was properly brought, and the demurrer was dismissed. Bougie v. Leduc, 5 B. L. 648, S. G. 1874. 26. And where the declaration set up a contract, and then claimed more than was stipulated in the contract without asking that it be set aside, a demurrer was maintained. Gaugh v. Greaves, 1 L. C. L. J. 98, S. G. 1865. 27. A demurrer to a declaration which sets up a promisnory note as made by one of the defendants, St. Julien, tuteur, and prays for judgment against him personally and the other defendant as endorser, will not lie. Darling et al. v. St. Julien et al„ 18 L. G. J. 190, S. C. B. 1873. 28. A demurrer is a plea to the merits. 405, S. G. 1856. Normand v. Huot, 9 L. C, B. 29. Where a defendant on the last day oi the delay to plead to the merits made a motion to have the delay enlarged as he was about to file a special demurrer, and could not plead to the merits without prejudice until the demurrer was disposed of — Held, that defenses en droit should be accompanied by pleas to the merits, but, as this was the first time the question had been raised, the court would allow the defendant the rest of the day to file such pleas. Pirrie v. McHugh et al., 1 L. G. B. 216, S. C. 1851. 30. A demurrer is not a preliminary plea, and need not therefore be filed within the four days laid down by the statute. Benson v. Ryan, 4 L. G. B. 156, S. C. 1853. 31. In an action against the maker of a note payable on demand and generally, want of presentment is not a ground of demurrer. Archer v. Lortie, 3 Q. L. R. 159, S. C. R. 1877. 32. Where a statute requires notice of action to be given to defendant before issuing the writ, it is not necessary to allege in the declaration that such notice has been given. Simard v. Tuttle, 4 L. G. B. 193, S. G. 1854. 33. And in another case — Held, that such notice need not be recited at full length in the declaration. Lavies v. McGuire, 4 L. C. B. 347, S. C. 1854. 34. In an action by a tutor to a minor — Held, to be essential that the declaration contain an allegation that the appointment of the said tutor or a memorial of such appointment has been registered. Murray es qual. V. Gorman, 2 L. C. B. 3, 8. C. 1851. 'I' ■i in \i w ft* i KM-, f ' * hi I U ^N m I,,. '; ft 142 OF CONTESTATION UPON THE MERITS, ART. 147. 85. Opposition was filed for the amount of a hypothec, and the opposi- tion was contested on the ground that no registration of the hypothec was alleged — Held, that where the hypothec was opposed to chirographic claims the allegation of registration was unnecessary. Duncan v. Wilton db McGlennan and Wilson v. Wood, 2 L. C. J. 268, S. C. 1857. 86. Where in an action for dower dependent upon an option arising out of a contract of marriage the defendant demurred on the ground that the plaintiff's declaration did not allege the registration of such contract, the action was dismissed in the court below, but re-established in review on the ground that the allegation referred to was specially made. Leroux v. Leroux, 5 R. L. 188, S. C. R. 1873. 37. And when in the same action the defendant filed an exception on the ground that there really was no registration of the contract of mar- riage, and the plaintiff demurred, the demurrer was dismissed. lb. 38. In an action against a public officer for a »aisie revendication of goods seized — Held, that proof avant fai'^e droit would be ordered upon a demurrer alleging the omission of one month's notice. Bathgate v. Delisle, 16 L. C. J. 250. 8. C. 1870. 39. In an action brought by a registrar against the sheriff for the value of ceriain certificates, but in which action the plaintiff omitted to allege that the sheriff had received the fees therefor — Held, that the validity of the declaration could not be tested by demurrer, but must be attacked by a plea to the merits. Lambly et al v. Queinel, 15 L. G. R. 148, C. C. 1864. 40. In an action by the transferee of the assignee of a bankrupt estate who had purchased the outstanding debts of the estate — Held, to be necessary to allege in the declaration that the sale was made by order of the judge, and that the formalities required by the 67th section of the Bankrupt Act had been complied with. Warner v. Mernagh, 2 L. C. B. 452, S. C. 1861 ; Ins. Act, 1875, s. 69. 41. In a personal action by a transferee — H-M, unnecessary to allege that he had served on the defendant a copy of the registration required by Art. 2127 of the Civil Code, and an allegation that the service required by Art. 1571 was made is sufficient. Dutnont v. Laforge, 1 Q. L. R. 159, 8. C. 1874. 42. Where a wife, separate as to property, and tilleged to have been carrying on business as A. & Co., was sued, .nd her husband brought into the case for the purpose of authorization only — Held, that an allega- tion in the declaration that the defendants under the name of A. & Co. made their certain promissory note was sufficient, and a dJj'eiue en droit on the ground that no debt against the wife was set up in the declaration, would be dismissed with costs. Adams v. Fleming et vir, 18 L. C. R. 78, 8. C. 1862. OF CONTESTATION UPON THE MERITS, ART. 147. 148 43. The plaintiffs, not having alleged the insolvency of the defendant in their declaration, could not base their right to sue for the whole of the debt on such insolvency, and the allegation of defendant's insolvency in their special answer could not avail to supply the deficiency in their declaration. Gibson et al. v. Mofat i6 Young, 2 L. C. L. J. 60, Q. B. 1866. 44. And in another action for the infringement of a patent right to which the defendant demurred on the ground that the declaration failed to set out at length the preliminary formalities required to be observed in order to obtain the patent — Held, to be unnecessary, and the demurrer was dismissed. Dernier v. Beauchemin, 2 L. C. J. 193, S. G. ; Bernier v. Beliveau, 8 L. C. R. 297, S. C. 1858. 45. In an :.ction of damages for malicious arrest upon a capias on the ground that the defendant was about to leave the Province, it is not necessary to allege in the declaration that the action in which he was so arrested was dismissed. Boijle v. Arnold, 1 Rev. de Leg. 503, K. B. 1821. 46. In an action for malicious arrest of property meditatione fuga, it is not necessary to state in the declaration that the action under which the arrest was made is determined. Whitfield v. Hamilton, 3 Rev. de L6g. 40, K. B. 1811. 47. In an action for the price of sale of certain real (iroperty it is not necessary to aver the delivery of the property sold. If it has not been delivered the defendant must plead that fact, and the plaintiff mtty reply by a delivery or by an offer to deliver. LarivA v. Bruno, 3 Rev. de L6g. 40, K. B. 1817. 48. Action was taken tu recover the price of 1000 barrels of flour sold to the defendant, and the plaintiff joined to such action an attachment by conservatory process, praying in ordinary form that the goods be seized to await the decision of the court — Held, that the action was good and valid and would be maintained. Baldwin v. Binmore et al., b L. C. J. 297, S. C. 1861. 49. Cu an action in which the husband is jdined only for the purpose of authorizing his wife, judgment can only be demanded in favour of the wife. Le/ort et vir v. Demnarait et al., 11 L. C. J. 122, S. C. R. 1848. 50. In an action by a wife separate as to property by a marriage con- tract, such contract must be alleged in the declaration. Walker v. The Mayor et al. of the Town of Sorel, 5 R. L. 66, Q. B. 1866. 51. Where tho defendant demurred to an action on a promissory note on the ground that the declaration did not allege that the defendants signed the note, and it did not allege that they delivered the said note, etc. — Held, that the allegation that the defendant made the note was sufficient without alleging that the note was signed by him, and as to the 144 OF CONTESTATION UPON THB MBRITS, AHT. 147. delivery, although it would have been better to have alleged the delivery by the maker to the payees, the declaration must be considered to have been sufficient. Bullitt et al. v. Shaw et al., 7 L. G. J. 47, S. C. 1868. 52. Information was laid on the part of the Crown to cause two casks of planes seized by the customs' officers for an infraction of the revenue law to be condemned, the goods having been imported without the pay- ment of duties — Held, that in such nn information the allegation that the goods ought to be forfeited, as having been imported into the Province without the duties having been paid, was insufficient, and that there must be a substantive allegation that they were imported and brought into the Province in violation of the customs' regulations. The Solicitor- General v. Darling et al. 2 L. C. R. 20, S. C. 1851. 53. And the omission of the words " against the form of the statute" was fatal. lb. 54. Where a lessee brings action in ejectment under the statute 18 Vic. cap. 108, it is not necessary to invoke such Act in the declaration. Brown v. Janes, 4 L. C. J. 85, S. C. 1860. 55. In an action by the heirs of a wife, common as to property, against their father, praying to be declared proprietors of one-half of a farm belonging to the community, it is necessary to specify which half if a partition have taken place, and if not, to pray for a partition by the declaration. Lalonde et al. v. Lalonde, 5 L. G. B. 97. 56. The defendant demurred to a petitory action because the plaintiff did not set forth the title of his auteurs nor the registration thereof : Held, that such allegations were unnecessary, and that the averment by the plaintiff that at the time of the sale to him the vendors were proprie- tors in open, public, and peaceable possession of the land so sold in virtue of good titles, was sufficient. Boss v. Lefebcre, 10 Q. L. R, 244 ; 7 L. N. 401 ; S. G. R. 1884. 55. A demurrer should be pleaded before a peremptory exception. Berger v. Devlin, 2 L. N. 294, S. G. 1879 ; Content v. Poirier, 4 L. N. 324, S. G. 1881. 56 A demurrer will lie where the declaration is in the alternative, e. g., charging 'want of integrity or negligence.' Ro»s v. Citizem' Ins. Co., 2 L. N. 181, S. C. 1879. 57. The sufficiency of a demurrer to a plea and the sufficiency in law of a special answer to a plea cannot be tested by motion. Canadian Bank of Commerce v. Brown et al, 23 L. G. .T. 181, 9 R. L. 654, Q. B. 1878. 58. A demurrer to an action for damages by which plaintiff complained of the illegal demolition of a fence in the building of a road which was to OF ISSUE JOINED, ARTS. 147-148. 145 be a front road of a certain lot described in the declaration (such descrip- tion not including plaintiff's lot) was rejected. ?P itman v. Stanbridge, R. L. 662, 28 L. G. J. 176, Q. B. 1878. 59. The suppliant by his petition of right claimed as representing the heirs of P. W., jr., certain lands originally granted by the crown to P. W., sr., in 1806, together with 9200,000 for rents, issues and profits derived therefrom by government since the illegal detention began. The crown pleaded by demurrer alleging that the description of the limits and the position of the property claimed was insufficient in law ; that the conclu- sions were insufficient and vague ; that as to the rents, issues and profits, there had been no signification to the government of the gifts or transfers by the heirs to suppliant — Held, that the objections taken should have been pleaded by exception to the form, and that as the demurrer was to all the rents, etc., it was too large, and should be dismissed, even were a signification of transfer necessary. Chevrier v. The Queen, 4 S. C. R. 1. 60. Omission to state date and place of the acts complained of does not give rise to a demurrer but to an exception to the form. Demers v. La- marehe et . 2. Reasons which might have been urged if the intervention had been a plea to the merits cannot be plea led against the right of the intervener to come into the case. Ecanit et al. v. Lionais d' Lionuis, 2 L. N. 195, S. C. 1879. Wl HJil 152 OF INTERVENTIONS, ARTS. 156-157. 156. The demand in intervention may be made in court or filed in the prothonotary's office ; but it cannot stay proceedings upon the principal demand unless it is allowed by the court, or by a judge in vacation, upon application made at any time before judgment in the cause. — C. S. L. C. c. 83, s. 81. 1. An intervention by a party interested in a contestation between defendant and a guardian m/x en caune, after determination of the prin- cipal suit, IS regular. It will not be rejected from the record on motion because it was filed without the allowance of the court. Semble that the allowance thereof by a judge in chambers during term is not a com- pliance with Art. 156. — Milla, v. Bourgeoi» d' Holland and The Montreal R. Mills, 16 L. C. J. 335, S. C. 1872. h ^ 157« When the intervention is allowed by the court or judge, the suit is suspended during three days ; and if the intervening party fails within that period to have it served upon the parties in the case and to file a certificate of such service, it is held not to have been filed and has no eifect ; and the filing of the prothonotary's certificate of such de- fault is equivalent to a judgment dismissing the interven- tion. — Ibid., 8.2. 1. An interveition stays proceedings upon the principal demand, but cannot Arrest proceedings for the appointment of a se Drien dit Duroclier, 3 L. N. 347, S. C. 1880. 3. An intervening party is bound within eight days from the admis- sion of his intervention, either to furnish any further grounds he may have to set up in the principal suit, or to notify the parties that he has no further grounds to offer. McGreevy v. Gin^rag d- CoU', 4 Q. L. R. 203, S. C. R. 1876. 4. The Court may extend the delay of three days allowed for service of petition in cases of intervention. Fra«er v. Pouliot d> Lavoie, 8 R. L. 446, S. C. 1871. OF INTERVENTIONS, ART8. 157-158. 153 5. A petitioner for intervention' r . give notice of his petition to all the parties in the case, as well th . who have appeared as those who have made default, and the ruasous of intervention must be served both upon the plaintiff and the defendant. Fraaer v. Pouliot d- Lavoie, 3 R. L. 446, S. C. 1871 ; Gillespie et al. v. Spragge et al. <& Hutchison et at., 6 L. C. J. 25, 8. C. R. 1856. 6. An intervention must be served upon the parties, otherwise it can have no effect. Cournoyer v. Tranchemontagne et al. <£• Barthe, 18 L. C. J. 335, 5 R. L. 3*27, 8. C. R. 1874, 7. Plaintiff obtained a certificate that the intervention had not been filed within the three days, whereupon the intervening party moved without notice, but upon affidavit, for a further delay to file hi^ reasons, which motion was allowed — Held, in review, that the further delay should not have been granted. Ueaitdet et ux. v. Murtel d- Ethier, 15 L. C. R. 457, 1 L. C. L. J, 2'J. S. C. R. 1805. 15M. If the deinaiicl in intervention is served within the delay prescribed, the parties to the suit are bound to answer it within eight days after such service, in default of which, the intervention is held thenceforward to be admitted by the parties who have not contested it. The intervening party is bound, within eight days from the admission of his inter- vention, to furnish any grounds he may have to set up in the principal suit. The subsequent proceedings are the same as in an ordi- nary suit. 1 Couchot, 78 ; 25 Vie. c. 57, s. 36. 1. On the reasons and grounds of an intervention a new issue is raised, and proceedings must be taken and followed as in ordinary oases. U'dlvott V. Jiobiuson iL- Julinwn iV Jianies, 11 L. C. J. 303, S. C. R. 18(57. 2. An inscription on the role d'enqii^te or de droit, without having regularly demanded a plea in contestation of the intervention, and with- out having allowed the legal delays to elapse will, on motion to that effect, be struck. Ibid. 3. An intervening party cannot foreclose a party already en caiine without a regular demand of plea and the lapse of the regular delays allowed for similar pleadings in ordinary suits, and such foreclosure will be raised on motion. Walcott v. liobinson d- Johnson d- liurnes, 11 L. C. J. 303, 8. C. R. 18G7. > «ji ,•'11 if if' 'iKW 'll, . r t " 164 OF IMPROBATION, ARTS. 158-169. 4. Although a seizure corporeally effected of property in the hands of the tiers misi be null, an intervening party cannot, by motion made immediRtely after he is allowed to intervene, and before any issue is joined on the intervention, claim the quashing of the seizure. Fleck v. lirown, 9 L. C. J. 210 and 15 L. C. R. 416, and 1 L. C. L. J. 32, Q. B. 1865, See McGreevy v. Ginnras lO CotJ, under Art. 157. 5. Where parties intervene in an attachment before judgment and claim proprietorship of the things seized, and instead of contesting plain- tiff's claim give security that the goods will be forthcoming to abide the issue, and thus get possession of the things seized, and allow the plaintiff to take a judgment declaring the attachment good and valid, they cannot oppose the sale of the things seized in execution of such judgment on the ground that they are proprietors thereof. Pnh-ont v. Rodgers et al., 24 L. C. J. 179, Q. B. 1879. 6. A party may contest an intervention after the eight days following the service thereof if no demand of plea have been made on him and no (icte of foreclosure have been granted by the prothonotary. Derome dit Decarreuu v. liobitaille, 8 Q. L. R. (iO, Q. B. 1881. SECTION III. OF IMPROBATION. 130. Besides the action of improbation which may be brought as a i)rincipal and direct action, anj' party in a suit ma}' proceed by improbation against any authentic docu- ment produced by the opposite party, and even against a return of the sheriff or of any other judicial officer. Poth. Proc. 333 ; Serpillon, Code du Faux, 153 ; C. P. C. 214. Nevertheless, as regards simple service of summons or of notice, the return may be contested on motion, witliout an improbation, unless the court otherwise orders. If the contestation be deemed frivolous the contesting party may be condemned to pay double costs. Th>3 Court may, according to circumstances, grant leave to amend the return, by supplying any omissions or cor- recting any errors therein which might be grounds of improbation.] OF IMPROBATION, ART. 169. 155 1. A sheriff's returu is an authentic act, and cannot be im|)eached without an inscription en faux and an incidental demand in I'ecission founded on affidavit. BJlangcr v. Holmen, 3 Rev. de L6g. 1*)8, K. IJ. 1818. 2. 'Where it is shown that a paper filed in a case has been ante-dated, and in reality filed on a different day from its date and after the proper delay, it will be struck from the files of the court on motion to that effect, and it is not necessary to inscribe en faux against the plumatif or register of papers filed. Beaudry v. Ouimet, 8 L. C. J. 12G, S. C. 1863. 3. Where inscription en faux was taken against the defendant's pleas and exhibits as not being filed on the day on which they purported to have been filed — Held, that defendant might withdraw such pleas and exhibits and substitute others on payment of costs of procedure en faux, and thirty shillings additional on filing the new pleas. Mayer v. Thompson et al., 1 L. C. J. 280, S, C. 1857. 4. Where a document produced in a case before experts was alleged to be false — Held, that it might be attacked en faux by summary petition. Brunet v. Bmnet, 17 L. C. J. 51, S. C. 1871. 6. The court will not permit a party to adduce the testimony of wit- nesses in order to impugn an authentic document, unless he proceeds by improbation, — except in the case of a bailiff's return. Lawis et al. v. Prinmtu et al., 7 L. N. 39, S. C. 1883. 6. An entry by which a writ returnable on the 24th was recorded as returned on the 2()th, may be shown to be a clerical error, particularly where the record itself proves that the entry was made in error. MoUon's Bank v. lAonais eaqual., 27 L. C. J. 40, Q. B. 1881. 7. An application to proceed by improbation against the prothonotary's certificate regarding the posting of a report of distribution will not be granted after the report has been homologated, in favour of an opposant who knew of the./ijM.r complained of prior to the homologation. Paniiman v. Pauz^ exquul, 27 L. C. J. 140, S. C. 1883. 8. ^n omission in a deed arising from error or oversight, does not constitute a ground for an action in improbation. Sabine v. Krans, 3 L< N. 267, S. C. K. 1872. 1>. The certificate of the prothonotary can only be attacked by impro- bation. DeBeaujeuv. MaH*^, Jan., 7 L. C.J. 105, S. C.lSiVS. 10. The correctness of a duly certified copy of a notarial deed may be attacked otherwise than by improbation, and therefore the procedure by way of an inscrijUion en faux should be dismissed. Dufrenne et al. v. Lalonde et al., 21 L. C. J. 105,8. C. 1876. See ante. Aits. 7[), 80. 156 OF IMPROBATION, ARTS. 160-164. 160. A party may also proceed by iinprobation against any document filed by himself, and which he is seeking to have declared null. Pernnilt v. Siniard, 6 L. C. E. 24. ■X \- 161. Incidental improbntion is begun by a petition, praying that the party be allowed to proceed by improba- tion against the document therein designated, and that the opposite party be held to declare whether he intends to make use of such document. The petition must, under pain of nullity, be signed by the party himself, or by his attorney, under a special power filed with the petition. Imbert, p. 788 ; Ord. 1670, art. 6 : Ord. 1737, tit. ii. art. 3 ; Serpillon, Code du Faux, 153 ; C. P. C. 215. 1. On an inscription in iniprobation — Held, to be unnecessary to make an election of domicile. Martineau v. Karrigan, 3 L. G. J. 190, S. C. 1859. 2. A party will not be allowed to inscribe en faux against a bailiff's retnrn after the expiration of the four days from the date of return, except on cause shown by affidavit. Perry v. Milne lO The Ontario Bank, 6L. C. J. 243, S. C. 1862; Seymour v. Horner, et al., 12 L. C. E. 90, S. C. 1862. 3. A party was held to have waived all pretensions to proceed on his insci-iption en faux where he omitted to move to set aside an inscription on the merits of the suit. Pliiilipn v. Hart id Hart, 1 L. C. R. 305, S. C. 1851. 162. The petition must be served upon the opposite party before it is presented. C. P. C. 215. 163. The petition must be accompanied by a deposit in the prothonotary's office of a sum fixed by the court, to meet the costs to be incurred, in whole or in part, in the event of the improbation being dismissed.] 164. Improbation may be begun at any stage of the suit until the closing of the evidence, and even afterwards before OF IMPROBATION, ARTS. 164-166. 157 judgment, upon proof that the falsity was not ascertained until after evidence was closed. All proceedings in the principal suit are suspended until the improbation is adjudicated upon. — 3 L. C. J. 268. 1. An insoription en faux may be made at any stage of the proceedings, Art. 164 having abrogated all rules to the contrary. Lynch v. Duncan, 12 L. C. J. 220, 15 L. C. J. 36, 8 C. R. 1868. 2. But a party cannot proceed by improbation against any document produced in a case after the closing of the enquite, when the facts on which he relies were known to him before he pleaded to the merits. DmIetH V. Tmhan, 5 R. L. 62, 8. C. 1878. 1ft7 can be made in writing only : and the hatred mentioned in the 8th Art. must be hatred on the part of the jud){e, and must be so alleged and proved, failing which, the grounds of recusation will be held to be impertinent. Renaud v. (imjij, 8 L. C. R. 246, Q. B. 1868. 3. The hatred mentioned in the Ord. of 1007 {hiimitW capitate), must be a decided hatred, known and manifest, such as would result from the killing of some near relative of the person urging such recusation, or the result of differences or jjersonal encounters between such persons and the judge, which would create a feeling of revenge that might lead to the use of the opportunity of destroying the life, the honour or the personal advantage of one's enemy. Ibid. 4. Where the judge had formerly been a member of an association of persons which had never dei)08ited a declaration of partnership, and against which a qui tain action was brought, the demand in recusation was set aside ab it appeared that he had no longer any interest in the associa- tion. Leclerc v. Jiilodean, 12 L. C. J. 20; 4 L. C. L. J. 42, C. C. 1807. 6. Where a judge had in an action between the same parties, but in another court, expressed hi? opinion and delivered judgment in accordance therewith on the pretensions of the parties, which pretensions were to be urged in the second case, it was held that he should refrain from sitting. Hall V. Brigham, 13 L. C. J. 252, Q. B. 1809. 6. Roman Catholic judges, in cases involving the right of the civil power to entertain an appeal in the nature of an appel coinvie iVabua, OF RBOU8ATION8, ARTS. 177-182. 161 oftnnot be reonted on the firoand that they aoknowledge the Authority of Rome, lirowi v. The Cur/, tte., of Montreal, 20 L. C. J. 928, P. C. 1874. 177* A judge i8 disqualified if he is interested in the suit, either personally or on account of his wife, or if his wife, when separated from him as to property, is interested in the suit. Ibid. V7H, A judge who is liable to be recused cannot refuse to sit in the case until after he has declared the grounds of recusation that may be invoked against him and the court has ordered that he should not sit. Ord. 1667, tit. xxiv., Art. 18. 170. Any judge who is aware of a ground of recusation to which he is liable, is bound, without waiting until it is invoked, to make a written declaration of it to be filed in the record. Ibid. Art. 17. 1MO. Any party to a suit who is aware of a ground of recusation against a judge, is bound to make it known as soon as it comes to his knowledge. Ibid. Art. 19. IHI. After the declaration of the judge or one of the par- ties, the party desirous of recusing the judge is bound to do so within eight days from the service of such declaration ; after which he cannot do so, unless the court, for sufficient reasons, has extended the delay. Ibid. Art. 20. 1. If H judge declare hia incomtietency by reason of kindred, itc, the parties must tile their recusation within ei( 'ji 162 or RliOUSATIONB, ARTS. 188-187. IHH* A recusation in proposed by means of a petition containing the grounds thereof, and it must be signed by the party himself or by his attorney under a special power. If the party is absent from the Province, his attorney ad litem may, without special power, sign the petition asking that the judge do abstain from sitting. Ibid. Art. 28; Poth. Proc. 80. 1H4» When the recusation is made before the judge has made his declaration, communication of it must be given to him, and he must declare in writing whether the grounds are true or not ; another judge then proceeds to determine whether the recusation is founded or not, without the re- cused judge having a right to be present. Ibid. Art. 24. iH!i, If the recusation is proposed against the sole judge residing in a district, it is carried to the chief-place of a neighbouring district, designated by the judge who is recuh d, and the record is forthwith transmitted to such place by the prothonotary. C. 8. L. C, c. 79, s. 19, § 2 ; c. 78, s. 20, Ij 1. IMO. If the recusing party has no written proof in sup- port of his recusation, the judge's declaration is conclusive, and the recusing party cannot produce oral testimony nor even obtain delay to produce written evidence. Ibid. Art. 15. 1H7' If the recusation is maintained, the judge cannot, for any cause or under any pretext whatever, be present in court during the bearing of the case or the rendering of the judgment. The recusation muct be withdrawn before the judge against whom it is made or must be dis^ jsed of by the judge entitled to decide the ques- tion before the parties (wn proceed in tlie case. Montreal City d; D. Sa- ring'g Bank v. Gedde», etrl. 2 L. N. 271, 8. C. 1879. OP DISAVOWAL, ART8. 188-192. 168 tHfi, If the reousation has been carried before a court of anot^ r diBtriot and is maintained, "^nch court remains seized of the case, and the record from that period forms part of its records. C. 8. L. C c. 78, h. 20, § 2 ; c. 79, s. 19, § 8. I Mil. But if the recusation is dismiBsed, the case is sent back to the former judge, to be by him tried and deter- mined. Ibid. lOO. A party v>hr> has a right to recuse a judge may renounce his right, by filing a written consent that the judge should "^ar and decide the case, except in the case menti' aod In article 177. 1111. In such case, however, as also when the party fails to recuse, the judge is not bound to sit, unless the grounds of recusation have been declared insufficient. SECTION V. OF DISAVOWAL. 102« Any party may disavow his attorney ad litem who has exceeded his powers. He may also disavow an attorney whom he has not employed ; without prejudice to his rights if he does not do so. 1 Pig. 849 ; C. P. C. 382. 1. The Hubstitution of attorney by the party in this particular cause, in place of the one who previously represented him was an acciuiescence in all the proceedings of the flret attorney, there being no disavowal, and that notwithstanding any irregularities in the proceedings. liurrouglu v. Mohon et a/.,*8 L. C. R. 494. 2. Proceed infjH in disavowal are in the nature of a suit between client and . '.torney, and the matter to bo adjudged is, had the attorney a right to act or not. Mohh et al. v. llm» iV lto»» v. Monk, '.> L. C. J. 328, 8. C. 18C5. 3. And a plaintiff in disavowal is bound to prove all the allegations of his declaration, and particularly that no authority or power to act was given by him to the attorney Ibid. ^^ I ^/jisifrf ! k 'Vr r 16 When one of the parties ceases to be represented before the case is submitted to the consideration of the court, the opposite party must notify him to appoint another attorney. 1 Pig. 348, 204. If the defendant thereupon fails to appoint another attorney or appear in person, the plaintiff may proceed with the suit ex parte. If the plaintiff is the party thus in default he may be non-suited. Poth. Proc. 74. 305. A party's revocation of the powers of his attorney will not be received unless he pays him his fees and dis- bursements, taxed after hearing or notice given to the party. 300. A party who revokes the powers of his attorney must immediately appoint another, without being notified to that effect by the opposite party, and in default of his doing so tlie case may be proceeded with as provided in article 204. 1 Pig. 349. OF ARTICULATIONS OF FACTS, ART. 207. 167 CHAPTER FIFTH. OF ARTICULATIONS OF FACTS. SOT** Within two days after the issues are perfected according to the prescribed rules, each party is bound to file in the prothonotary's office an articulation of the facts which he has alleged and intends to prove, if the opposite party has not admitted them in his pleadings. C. S. L. C. c. 83, 8. 87 ; C. P. C. 252. 1. A motion to reject articulation of facta must be presented at the enqu^te. The Quebec Bank v. Rolland et al , 14 L. C. A. 95, S. C. 1863. 2. An articulation of facts which contains matters not to be found in the pleadings, or admitted by such pleadings, is nevertheless good. Bou- leati V. baequet, 8 L. C. R. 153, S. C. 1858. 3. In cases institutecl under the Code of Civil Procedure between lessors and lessees, articulations of facts are not allowable. Mitchell v. Gaucher et al., 17 L. C. J. 6fi, S. C. 1872. 4. Nor upon issue joined on a preliminary plea. liees v. Morgan & Baillie, 4 Q. L. R. 184, S. C. 1878. Lachambre v. Normandin, M. L. R. 1, 8. C. 241, 8. C. 1884. 5. Where the defendant moved that an inscription for proof and hear- ing be discharged, inasmuch as no articulation of facts had been filed by the parties in the case — Held, that the omission to file articulation of facts did not prevent the case from being heard in term. Bclumjir v. MogJ, 6 L. C. J. «1, Q. B. 1861. 6. A case may be inscribed for enquite and hearing on the merits with- out the tiling of articulations of facts and answers, when the delay for filing them had expired before the date of the inscription. An appeal will lie from an interlocutory judgment rejecting such inscription, nellutj v. Gmy, 4 Q. L. R. 91, Q. B. 1874. 7. Where defendant pleaded the general issue he was held obliged to a general articulation only in order to be entitled to claim the costs of his enqufite. MathewMm v. O'lieilly, 2 L. N. 322, 23 L. C. J. 313, S. C. 1879. 8. Articulations are not allowable in cases of injunction. Amjus v. Montreal P. d- B. Ihj. Co., 9 R. L. 646, 23 L. C. J. 161, 8. C. 1879. tit''P^' ' i ' I «, ! i V.f ml h'j 1 2 168 OP ARTI0ULATION8 OF FACTS, ARTS. 207-211. 9. Where a preliminary plea raises issues of fact and articulations have been filed, the attorney will be allowed the fees thereon. George v. The Canadian Pacific Ry. Co., 12 R. L. 682, S. C. 1884. iv'v ■* f U 20H, This articulation of facts must consist of separate and distinct articles upon each fact, numbered in regular order. The articles must be in the form of interrogatories, clear and explicit, so as to call for an admission or a denial, and so that the default to answer them will establish an admis- sion of the facts. C. S. L. C. c. 83, s. 87, § 2 ; C. P. C. 262. 1. A general articulation of facts will be rejected from the record as contrary to law, which requires all articulations to be clear and distinct. The Mohons Bank v. Falkner et al. d- Falkner et al. 6 L. C. J. 120, S. C. 1862. 2. An articulation of facts in the words : " Is it not true that the "allegations, matters and things set forth in the plaintiff's declaration " in this cause filed are true and well founded in fact," will be rejected with costs, as being no articulation of facts under the statute, and as insufficient and irregular. Day v. Harte, 16 L. C. R. 397, 8. C. 1866. 3. No costs of articulation of facts, or of answers thereto, will be granted, when they are general. Guerin v. Mathe, 15 L. C. J. 253, S. C. R. ; Demuteh et vir v. Ethier, 15 L. C. J. 301, 8. C. R. 1871. 209. The articulation of facts must be served upon the opposite party within the same delay of two days. Ibid., 8.87. 310. Any document or writing cf which a party intends to avail himself at the proof, must be filed with the articu- lation of facts, if it has not been filed sooner. Ibid., s. 88. 311. Within the three days which follow the filing of any articulation of facts, the opposite party is bound to answer each article separately and categorically, admitting or denying each fact articulated, or declaring it not to be within his knowledge. OF ARTICULATIONS OF FACTS, ARTS. 211-214. 169 After this delay of three days the party who has failed to answer cannot be relieved from his default, except upon application made to the court or judge, and upon payment of the costs occasioned by such default and taxed by the judge. Ihid., s. 87 ; 29 Vic. c. 43 ; C. P. C. 252. 213. The facts set forth in any articulation of facts are held to be proved : 1. If the opposite party does not answer it within the proper delay ; 2. If the opposite party does not deny them in an express manner, or does not declare that they are not within his knowledge. Ibid. 1. Where the plaintifl has neglected to answer the articulation of facts Aled by the defendant in support of a plea of compensation, such state- ment should be taken as admitted by the plaintiff under 29 Vic. cap 44 sec. 74. Archambault v. Archamhault, 4 L. C. J. 284, Q. B. 1860. 2. Held, reversing the judgment of the court below in a case in which compensation was pleaded, that the default of the plaintiff to answer the» articulations of facts of the defendants was an admission of the facts alleged so as to make the claim set up in compensation claire et liquide, and extinguish the adverse claim. lb., & 10 L. C. R. 422, Q. B. 18G0. 8. Where a party in a cause has failed to answer the articulations of facts filed by the opposite party, such articulations of facts will be taken pro confensi*. Otcen» \. Dubuc expenses of his cnqu^te even if successful. Atkiiuonv. Noad, 14 L. C. K. 159, S. C. 1863. 3. A party will not be allowed to file answers to articulations of facts after the case has been inscribed for review by the opposite party. Sicotte V. Reevex, 1 L. C. L. J. 107, 8. C. R. 18G5. 4. A party will be allowed to produce and file ansv/ers to articulations of facts, even after the final hearing of the case, upon payment of costs, the motion for leave being founded on an affidavit to the effect that such answers were not produced through oversight or inadvertence. Boawell V. Lloyd, 13 L. C. R. 121, S. C. 1862. It 'I t ,i 21 0« If the court is of opinion that the opposite party has been taKen by surprise by the adduction of evidence as mentioned in the precedin^article, it may postpone the proof or trial, or make such other order, or impose such terms on the party in fault as it deems just. Ibid., s. 90. 217* The articulation of facts may, with the consent in writing of all the parties, be dispensed with ; and in such case every allegation of facts by one party, which the other party in his pleadings has not denied or declared not to be FAITS EX ARTICLES, ARTS. 217-221. 171 within his knowledge, is held to be admitted, and the court may award the costs of such proof, according to its discre- tion. Ibid., ss. 76, 93. • 2IM. [In the case of articles 213, 214 and 215, the party who desires to be paid such costs must make a special appli- cation for that purp<~ jC, at the time of the hearing on the merits, and accompany his application with a statement of the facts he has been obliged to prove, and of his costs of proof.] 2111. [In rendering judgment upon the merits, the court also adjudicates upon the application for such costs.] Ibid., s. 87, §3; 8 91. CHAPTER SIXTH. OF TRIAL. SECTION I. PRELIMINARY PROVISION. 220. After the expiration of the three days allowed to answer the articulation of facts, cases may ba tried, accord- ing to circumstances, either by evidence takv^n before the court or by a jui*y. Ibid., s. 89. SECTION II. OF INTERROGATORIES UPON ARTICULATED FACTS. 231« The parties in any suit may, at any time durinfi the trial, and without retardimf either trial or jud(jia4. 2. Where a rule for faitg et articles was served on the attorney of one of the parties who was an absentee — Held, that a mere indication by such attorney of the residence of his client was a sufficient compliance with a.'t. 228 of the Code, and that he was not bound to take steps to have his client examined under a commission. Walters v. Lyman et al., 17 L. C. J. 246, 8. 0. 1878. ! mr f 1 1! ;W '1 ' ; I IT ! ' '■ II ' '-il i. li 'li l."i 8 174 FAITS KT ARTICLES, ARTS. 228-224. s; H' I- 8. Where the plaintiff had Kone out of the limita of the juriadiotion of the Court, and was domiciled on an island in Lake Huron, the Court would not allow service of interroftatories «ur /Vi/M «( art^c/M to be made at the prothonotary's office, Brault v. Bureau, 4 L. C. R. 140, B, C. 1851. 4. The service of a ru!e for examination of an absentee upon inter- rogatoricH nur J'aitH et article* made at the prothonotary's office is insuffi- cient. Fenn v. Bowker, 7 L. C. J. 297, 8. C. 1868 ; Tarratt et al. v. Foley et al., 11 L. C. J. 135), B. C. 18«o. 5. The service of interro^'atories at the defendant's domicile Is not sufficient to entitle the plaintiff to judgment on default of the defendant to appear if the writ of summons was not served personally. Darling v. f/j-Hi/t-zwH, 15 L. C. R. 432, S. C. 1805. ,. 0. The service of a rule for the examination of an absentee on inter- rogatories »nr j'aitu et article* mndo at the prothonotary's office is suffi- cient, and the Court may in its discretion prolong the rule to the first day of the next term for the defendant to answer the same. McDonald et al. v. Lafaillc, 9 L. C. J. 98, 8. C. 18(55. 7. A certificate of service of interrogatories sur fait* et articles must state that the interrogatories and the order to appear and answer were both served. Fozer v. Meikle, 3 Rev. de L6g. 355, K. B. 1819. 8. Fait* et articles must bo served at the real and actual domicile of the party to be interrogated, and the rule to appear and answe- must be served at the same time and place, or a motion pro conje**iii cannot otherwise be granted. liuteau v. Duchene, 3 Rev. de L6g. 8'>5, K. B. 1821. 9. The service of interrogatories «ur /<) ; Q. B. 18fi(). 4. A default to answer interrogatories nirfaitH et articleii upon the part of the plaintiff will be taken off, and the rule and interrogatories set uHide, where the rule is issued during the pendency of a former rule. Citmininn v. Dickie and The School Commissionerx of Durham and MiHchester. i L. C. J. 131, 8. C. IStiO. "), The default of the defendant to answer interrogatories *ur fait* et tirdclfti does nut conclude the case, if it is susceptible of further testimony. Giiyon V. Liomtix, 7 L. C. J. 294, 8. C. 1863. (>. And such party may answer the interrogatories at any time before the case is concluded. Ibid. ■t'.-,i; ■^'IfilH * ■'; :ii'-. 176 FAITS BT ARTICLES, ART. 225. iLii! 7. Where a party interrogated »ur falt$ et arUeltn oonoeminff a matter which he ithould know about, aniweri that he does not remember, ai where the plaintiff, bein^ asked v hat amounts he had advanced, and what Hums had been received by him, answered that he did not keep journal, memorandum or account books, and further stated, as excuse, that he had forgotten the amounts of the sums advanced or received— Held, reversing the judgmnnt of the Court below, that such interrogatories would be taken pro cmfeii*ii. Sye v. Main, 2 L. C. J. 48 and 7 L. C. R. 405, Q. B. 1867. See Foley v. Ktliott, L. C. R. 849, Q. B. 1858. 8. A director of a joint Mtock company is bound to re'-.pond to interro- gatories on fait* et articU* which have been proposed to him concerning the acts of the directors. Laeroix v. Perraut de Linitre 8 L. C. J, 186, S. C. 1869. 9. A party interrogated on faiU et articlet cannot call upon the court to decide as to the iiertinency of the questions that are proposed to him, if he has not refused to answer those which he deems objectionable. Leipht v. Guay, 3 Rev. de L6g 858, K. B. 1809. 10. A plaintiff cannot be compelled to answer on j'ait$ et article*, or the decisory oath, any question that tends to charge him with usury. HiMloton v. Hannah, 8 Rev. de L6g. 865, K. B. 1818. 11. A rule for interrogatories mr faiti et articles cannot be held goosei|iiontly inovudtohavethointcrro^a- torioH taken pro loiil'cuHin and ohtaii nd jnd^nient in IiIh favonr, the juil;;inent was reversed in review and ilio caHf Hent back for trial. Murt/tm V. Uichard, I) U. L. 088 ; 28 L. C. J. 20!>, H. C. R. 187S). 17 An action for damaneH may be suptxirtod without other proof than the default of the defendant (an ahHontee), to annwor interroj/atorios duly Hiaved and which under 2'2o G. C. 1'., were held to be adnutted. h'Di'tin V. Say, :» li. N. im, 8. C. 1880. IH. At the heiirinj^, defendant who had nuido default to auHwof inter- I'D^jatorieH was, tftider the circuinHtancoM of the caHo, allowed a reaHonablo delay to answer tiiem, upon motion to that ofTcct ; and thon^h the Superior dourt had refused such delay, the Court of Appeals granted it. Mcdnrnj v. (laniu'it uL, 10 11. l^. :i.>l, Q. B. 1880. 23li. A party may also be Hummoned to answer viva vorc, in open court, or at proof sittinRS, or before a jury ; luul his answers are tlien taken down by the judge or the prothonotary ; and the judge may put any other interroga- tories he may deem necessary and pertinent. If the party refuses to answer such interrogatories, the judge causes them to be written out and pbiced in the record, and they are held to be admitted. C. S. L. C. c. 83, s. 100. 1. Where the plaintiff summoned the defendant to answer certain iutorrof^atories surfnilH ct article* viva I'orc, and the defendant wished to make use of a paper in doinj,' so on which ho had previously written his answers — Held, that he could not be allowed to do so, but must answer without reference to the paper. Coleman et al. v. Fairbairn, 4 L. C. J. 127, H. C. IS.'i'J. 2. Where the defendant had been served with a notice to answer cer- tain interrogatories viva voce, and the presidin;^ jud^^e refused to allow him to road his answers from a pai)er previously prepared — Held, sub- secjuently, considering the number of the questions put, and the number of questions in issue, the defendant might be |)crmitted, in the discretion of the Court, to road answers prepared in advance. Guijon v. Lionais, 8 L.C.J. 91, B.C. 1803. 3. But where the plaintiff was summoned to answer interrogatories viva vuce, and had been interrupted by the attorney on the other side, who 12 p. 0. 0. p. M t ww■^ I ''J . 1 ' < h& 178 FAITS ET ARTICLK8, ARTS. 226-230. y. , i ^^:^ If' .1,! I refused to allow him to consult notes, and the plaintiff made a motion to be allo«'ed to answer dc novo, by filing' the writ and answers in question, on the ground that, owing to the confusion and embarrassment created by the attorney for the other side, he had been unable to answer properly, the motion was dismissed. Moss v. Douglass ct al., 8 L. C. J. 92 and 10 L. C. R. 248, S. C. 1859. 4. A party, where he has been ordered to answer interrogatories sur faits et articles viva voce, may read his answers from a pajjcr previously prepared- Feiui v. Bowkcr, 7 L. C. J. 28, S. C. 1803. *2ti7» The interrogatories must be drawn up in a clear and precise form, in such a manner that the absence of an answer shall be an admission of the fact sought to be proved. 23.S. The answers must be direct to the question, cate- gorical and precise, and free from injurious or libellous terms. Ord. 1667, art. 8. 1. Where the party answered ; " I do not know," " I have no personal knowledge," to questions referring to all the matters in dispute, the answers were held not to be categorical and precise, and the interrogatories were declared to be admitted. Mrdrei'vy v. PuillJ, -1 L. N. 95, S. C. 18H1. S2!K Every answer which is not direct, categorical and precise, may be rejected, and the facts mentioned in the interrogatory declared and held to be proved. 1. A note was declared upon of one date, and a note of another date is annexed to interrogatories upon jditx et (trticles, which the defendant did not answer. This refusal to answer cannot be received as an implied admission of the note declared on, nor can the plaintiff's motion pro confessis be allowed. Manuel v. Froljislier, H lie v. de Leg. 355. K. B. 1818. 2. A party interrogated who is rofjuested to answer the question, "is the signature of this note of your writing ? " may admit or deny the signature, but if he admits, he cannot add that ho has since paid it, for that is a fact separate and distinct from the question propounded. liochette v. Laberge, 3 Rev. de Leg. 355, K. B. 1817. 230. The party who applied for the interrogatories upon articulateu facts may refrain from putting them, or may, after they are answered, declare that he does not /. FA1T8 ET ARTICLES, ARTS. 230-231. 179 intend to avail himself of the answers ; and upon his so refraining, or upon such declaration being made, the court cannot take cognizance of the answers, which are there- upon held not to have been given. S31* The answer of any party to a question put to him may be divided in the following cases, according to cir- cumstances and in the discretion of the court : 1. When it contains facts which are foreign to the issue ; 2. When the part of the answer objected to is improbable or invalidated by indications of fraud or of bad faith, or by contrary evidence ; 3. When the facts contained in the answers have no con- nexion with each other. ff. De interroc). in jure faciendis ; 10 Toul. pp. 444 ct seq. 1. When a party interrogated on fnitx et articles confesses the facts charged, and states a distinct fact in avoidance of what he confesses, the former is evidence against him, and the latter is not evidence for him ; but if the fact chargad is by such party stated iu his answer to be other than that which is alleged, as when the plaintiff asks whether he, the defendant, did not on a certain day receive from him £100 as a loan, and the defendant answers that on that day he did receive £100, which the plaintiff there and then nave him, the answer manifestly must be taken ill toto as it is given, and cannot be divided, because none of the facts charged, namely, the loan of KlOO, is admitted, and, consequently, hia answer affords no evidence against him. Hoopt'r v. Koniij, 3 Rev. de Leg. 3;J4, K. B. 1813 ; Stditjield v. Maxseij, lb. 2. A party cannot be examii ed de novo upon new interrogatories which relate to the same facts, or upon which he has been already interrogated. Heavyside v. Mann, it Rev. de Leg. 35-1, K. li. 1813. 3. The defendant on faita et articlex had answered that "the note is in my handwriting, but it is part of a usurious contract for compound intei'cst " — Held, that the signature to the note was proved, but the Court could not receive the defendant's declaration of usury as evidence, the question being merely, did you sign the note? Hart v. Barlow, 3 Rev. de Leg. 354, K. B. 1817. 4. The answer of a party snr faits et articles may be divided according to circumstances in the discretion of the Court, when the part of the answer objected to is improbable. Legault v. Viau, 14 L. C. J. 56, C. C. 1809. i m jJnltli'i-V I, . :.■! ■■.vjfi ,;-;(i./i»';t!l t rvj; 180 FAITS ET ARTICLES, ARTS. 231-233. 5. Where, on action against the endorser of a promissory note, the sole proof of the endorsment was tlie defendant's answers to interrogatories on faits et articlcx, and the defendant sought to explain that he had endorsed the note in queiuion, or had intended to endorse it, simply as the attorney of another —Held, that the plaintiff was entitled to have the answers divided, so as to reject the explanation as not having been pleaded. Seymour et al. v. Wri(jht et al., 3 L. C. R. 454, S. C. i9r>2. Sec liochette v. Labevge, 3 Rev. de L6g. 355, under Art. 229 ante. C. The answers make proof against the party examined only, Gregory v. HemhaiD v. Fowler, 3 Rev. de Leg. 98, K. B. 1818. 7. A sale of greenbacks, to be delivered at a future date, may be proved by admission on /(//f.f <'f «;7/r/t'.s without any proof in writing, although no part payment have been made. Nichoii v. Hion, 2 R. C. 475, S. C. R. 1872. 8. An admission that the price of sale was not really paid, as stated in the deeds, coupled with the statement that the deed was really a donation and not a sale, cannot be divided. (VBrien v. Molxon ; (yBrien v. Thoma>>, 21 L. C. J. 287, S. C. 1877; 2 L. N. 310, 24 L. C. J. 43, Q. B. 1879. 9. The answer may be divided when part thereof is improbable or invalidated by indications of bad faith. Monpetit v. Peladeau, 4 L. N. 146, S. C. 1881. See Cotnoir v. Parenteau, 3 L. N. 213, Q. B. 1880. 10. The answers may be divided and serve as a commencement of proof in writing whereon oral testimony of the loan of a sum greater than the answers admit and of another loan which they assert to have been partially paid may be based. Moriii v. Fournier, 10 Q. L. R. 129, S. C. R. 1884. 333« The expenses of interrogatories upon articulated facts is borne by the party requiring them, and cannot be included in his taxed costs. Ord. 1667, Art. 10. 233. Any party, on being served with a rule to answer interrogatories upon articulated facts, may demand the necessary funds to pay his travelling expenses; but when he is before the court he cannot claim to be paid before he is sworn or before answering. He has a right to have his expenses taxed, and such taxation may be enforced by execution against the opposite party. OF PROOFS, ART. 234. 181 1. Where the party on being served neglected to'demaad the necessary funds to pay his travelling expenses, he may on the day of return ask by his attorney, that they be furnished him before he is obliged to leave home ; it would be otherwise if he came into Court himself. McGee v, Venne, 12 R. L. 108, S. C. 1882. 2. A defendant from the country who has been summoned to Montreal, to answer interrogatories xnr faitu et artick-H cannot refuse to answer be- cause his expenses have not been paid. The Unity Fire Insurance Com- pany V. Hickey et al., 7 L. C. J. 2'JS), S. C. 18G2. 3. A person against whom a rule has been taken to answer interrr-- gatories is not entitled to demand that a sum of money be paid to him for his expenses before ho is sworn and answers. Mireau v. llatelle et al., 1 L. C. 11. 277, S. C. 1851. 4. A party who has answered a rule for interrogatories on articulated facts has a right to have his expenses taxed under art. 233 of the Code. Cholette v. lierinult, 12 L. C. J. 2. J. 128, S. C. 1801. 2. And under such circumstances, such inscription will be set aside with costs, on motion by defendant to that effect. lb. 3. In an action on o promissory note the defendant pleaded generally a dJj'ense en fait, and the plaintiff inscribed for hearing without going to enqufite — Held, that under 20 Vic. cap. 44, sec. 87, the plaintiff had a right to inscribe for hearing as he had done, and the motion of the de- fendant to reject the inscription was dismitsed with costs. Jamieson v. Lr.rose, 2 L. C. J. 73, S. C. 1857. OF PROOFS, ARTS. 235-238. 183 4. On an inscription for enqu6te a delay of three days is sufficient, when the inscription is made during a special term regularly fixed by the court. Jiarthe v. Champaijm; 2 R, L, 113, S. C. R. 1870. B. An inscription foi enqufite must be ffjled at least eight daya before the day fixed for the trial. LaUmr v. Gmithier, 21 L. C. J. 39, S. C. 1877. DexroniirH v. Lesxard, 7 L. N. (iO, B. C. 1884. See pout 4G2, as to notice of inscription for hearing in law or upon the merits. 336. The evidence is taken down in writing, either at length or in notes, according to the provisions contained in this section. C. S. L. C. c. 83, s. 95 and 18. 337. For the purpose of such inscriptions, the protho- notary must keep a roll on which the cases set down for proof are inscrihed. 40 Eule of P. S. C. ;23J*i« The majority of tho.jmhjcs, in the districts of Quebec and Montreal, or thejiidfie in each of the other districts, from time to time, may, by a mle of practice, j^romuhiatcd in open court, set apart such (Ifyn, in or out of term, as may be deemed convenient for proceed ill y to pro(f. In the districts of Quebec and Montreal, not less than six days in each month mnst be set apart for such proof out of term. C. S. L. C. c. 83, .s. 15. 34 Vic, cap, 4, {Que.} : 1. Article 238 is amended so as to read as follows : " In the districts of Quebec, Montreal and Ottawa, every juridical day, except days between the ninth of July and the first of September, and between the twenty-fifth day of December and the tenth day of January, and days on which any term of the Court of Queen's Bench, Appeal- side, or of the Superior Court, or of the Circuit Court is being there n held, shall be a day on which parties to a suit may be compelled tc proceed to proof; in each of the other districts the judge may, from time to time, by a rule of practice promulgated in open court, set apart such days in or out of term as may be deemed convenient for proceeding to proof." 3.") Vic. c. f), (Que.) : 7. " Section one of the Act 34th Victoria, c. 4, is amended by striking out therefrom the word " Montreal." V3" 1), <:t;:; ; '"'ilip ii:f '^ . mi :■.' ■]: li<--;- J. .-■ ■■ ■life I ^ I ,i i ■' lips vi \-s >i 4, ,i ■■|'|i"-;i! I ' ' !! 184 OF PROOFS, ARTS. 238-239. 8. Notwithstundinf; anything contained in Art. 238 as amended by section one of the Act 34th Victoria, c. 4, and by the next preceding section of this Act, the followinf* days shall bo days on which parties may be compelled to proceed to proof in all actions or proceedings instituted or liad, at the city of Montreal, in the Superior or Circuit Court, unless any such days are days fixed for the holding' of the Court of Queen's Bench, Appeal-side, namely : The first sixteen days of the montlis of February, March, April, May, June, September, October, November, December; The first nine days of the month of July ; and The last sixteen days of the month of January." See 47 Vic, c. 8, s. 3, under Art. 1, ante. 1. 35 Vic, c. 8, s. 8, applies to inscriptions for proof and hearing on the merits. The Guarantee Imurance Co. of S'. A. v. Jtethuiie, 5 L. N. !(■(, S. C. 1882. S;SSI. In the cities of Quebec and Montreal, parties can- not proceed to proof during term, excejit in the following cases : 1. When the case is inscribed at the same time tor proof and hearing according to article 243. 2. In summary matters, when the court or judge has given special order to that effect. 3. In ex parte cases. Ibid., s. 94. mi m f4 '.>. 'f't m 33 Vic, c. 18, (Que.) : 1. " Notwithstanding any provisions of articles '231>, 240, 203, 280, 281, 285, 287, 2()8 and 1075, all depositions of witnesses in cases before the Superior Court, or before the Circuit Court, may, as regards default cases, and also by consent of the parties or of their attorneys as regards contested cases, be taken at any stage of the proceedings, at any place, on any juridical day, in or out of term, and may, after being so taken, be sworn to before a commissioner of the Superior Court, ' 1. During the sittings of the Superior Court in Montreal, a party may be compelled to proceed at enquC'te sittings. The Molmm Hank v. Con- verse, 20 L. C. J. 302, S. C. 1876. 2. In the absence of anything to the contrary in the Rules of Practice, or o.f any order confining enqnete days in term to cases ex parte, the court has no power to prevent a party from proceeding with a contested case during the enqu^Jte days in term. La Baiique du Peuple v. lioij et al., 2 L. C. II. 239, S. C. 1852. OF PROOFS, ARTS. 2'40-241. I8ff 240* In any case wherein it is established upon oath that a witness is about to depart from Lower Canada, and that thereby one of the parties may be deprived of his testi- mony, one of the judges of the court may, at any stage of the proceedings after [service of summons] , receive the deposition of such witness, in presence of, or after duo notice to, the parties ; and such deposition has the same effect as if it was taken at proof. The same thing may be done, after issue joined, in cases of evident necessity, when it is estabUslied upon oath that the witness is prevented, by serious iUness or infirmity, from attending before the court. If the witness is still alive, and in the province, and his attendance can be procured, at the time of the proof being taken, he must be examined anew in the ordinary time and manner, if it be required by either party. C. S. L. C. c. 83, s. 101. See 33 V. c. 17, s. 1 (Que.), under Art. 239 ante. 1. Motions for leave to examine witnesses about to 'eave the Province are exempt from the provisions of the Rules of Practice which declare that, in the computation of time, no Sunday or binding holiday shall be reckoned, and a notice of such motion served on Saturday is sufficient for the presentation of such motion on the following Monday. Byrne et III. V. Fitzniiunions lO FUher, 10 L. C. U, 383, S. C. 18G0. 2. In a matter of urgency, as when a witness is about to leave the country, notice given in the evening for the following morning is suffi- cient. Mohon V. Moinic Companij tt Dujrexne, 13 L. C. J. 'iS.'}, S. C. 186'J. 3. A defendant cannot be comiiel'.c.l to appear before the return day to show cause why certain witnesses about to leave the Province should not be examined. Mahne v Tate, 2 L. C. It. 9!), Q. B. 1851. 4. An application to be allowed to examine a witness who is about to depart will not be granted if the record is before the Court of Review upon an inscription for revision of en interlocutory judgment. St. Jeinmes v. de Montigny, 12 L. C. J. 343, S. C. 1868. 241. The court or judge may, if deemed advisable, and without any commission or other formality, order the proof 1^ V: \^\ ' I 186 OF PROOFS. AUTS. 241-243. i l CO be taken, or any person, even if ho be a party, to be ex- amined either under the dccisory oath, or upon articulated facts, or otherwise, at any place where sittings of the Superior Court or of the Circuit Court are held, before any judge at such place. And i'.i such cases after the record has been four days in the hands of the prothonotary, or clerk, at the place to which it has been sent, the parties may proceed as if tbe case were there ponding. Ibid. ss. 24,' 154. See Art. 300, post. 1. Where a .motion was made to oi)eM an encjudte before a private incliviilual in another district the court Iwld that it had no |)o\ver to delejjate an enqn6to to anyone but to a judf»e. McVittlir v. Ctittin;! it Clarke, 5 R. L. Kw, S. C. 1874. m -,i 343. A copy of such order is transmitted to the protho- notary or the clerk of the court at the place mentioned, together with such part of the record as may be necessary ; and the prothonotary or clerk may thereupon take the necessary proceedings to compel the witnesses or the parties to appear at the place named on any proof day, or any day, fixed by the judge, on which a judge will be present at such place, and in the oases of this and of the preceding article the rules contained in articles 248, 241) and 480 apply. Ibid. § 3. 24ti. Any party may, either in his declaration or in any other pleading, or by a notice served upon the opposite jmrty, declare his option that the case shall be inscribed at the same time for proof and for final hearing immediately after proof; and in such case the cause cannot afterwards be inscribed otherwise. Cases may be inscribed for any day, in term or during proof sittings, set apart by the court for that purpose, or if no such days have been set apart, then for any day what- ever, in term or during proof sittings. OF PROOFS, ART. 243. 187 Cases insciibcd for proof and hearinf]; have precedence^ on days appointed for that purposes, over tliose inscribed otherwise an(i fixed for such days. Tlie days set apart in term or during proof sittings, as above provided, are deemed to be consecutive ; and if proof and hearing in any case commenced upon one of such days is not completed on that day, it may be adjourned to any other day thus set apart, and judgment may be rendered on any such day, either in term rr in vacation. The 8[)ecial days for proof or hearing are lixed or changed by rules of practice made and promulgated in the districts of Quebec i\\ \ Montreal, by a majority of the judges resid- ing in the Uistrict, and, in any otlier district, by the judge holding court therein. C. S. L.C.c.88, ss. 19,20,21, 22, 23. hv I 'n> "f>N 47 Vict. c. 8 (Que ) : 2. Sections 1(5, 17 and 18 of clmpter 7S. of the Consolidated Statutes for Lower Canada, and Kcctions 14, l'>, K", 17 and 18, of chapter 7'J, of the said Con8.)Hdated Statutes and the articles of the Code of Civil Pro- cedure and the other laws which affect thcni, are hereby amended so as to include the following proviaions : ((. In the district of Quebec : 1. Tlie first live juridical days of each month and the live juridical dayf4 following the flfteentli day of each month, shall be days on which the Suixsrior and Circuit Courts shall sit ; 2. The last four juridical days of each month, are days on which the Superior Court shall sit for cases inscribed in Review ; 3. All other juridical days shall bo days on which the Superior Court shall be held for cases inscribed for proof or cases inscribed for proof and hearing ; and if on the termination of the sanl days a case inscribed for proof and hearing shall be proceeding, the days for proof and hearing shall be continued de ilie in ilieiii for that case only ; 4. The third paragraph of Article 'J4S of the Code of Civil Procedure which enacts that " cases inscribed for proof and hettring have precedence on the days appointed for that purpose over those inscribed otherwise, and fixed for such days," is repealed aa far as regards the district of Quebec. b. In the districts of Montreal, Three Rivers and St. Francis : ! I .: I "I 'fit I I'll - 188 OF PROOFS, ART. 248. ','i Every juridical clay is doemod to be a term diiy for the trial and hearing of ciiBcs. before the Sui»eri()r Crurt and the (Mrcuit Court, whether they are insciibod for proof or for hearinj^, or for proof and hearing at the same time. However, in the districts of Three Rivers and St. Francis, and in the other districts to which this provision may bo made applicable by procla- mation oi the Lieutenant-Governor, the Superior Court cannot sit during the days J\.\od for the terms of the Circuit Court in tiie district. In the district of Montreal only the cases inscribed for proof and hearing at the same time, in the Superior Court, and those inscribed in the Circuit Court, cannot be inscribed except durin>{ the days now Jixed as days for the sittings in each of these Courts respectively, or which may be so fixed in the future, in the manner by law established. See 48 Vict. c. 13 (Que.), under .\rt. 1 ante. 1. An inscription for proof and hearing' at the same time remains valid as an option under 243 C. C. P., although it may have been set aside for want of suHicieiit notice, and the cause cannot afterwards be inscribed for proof only. Uclaney v. .S7. Lainyiirf Sti'um Siirii)tition Co., 8 Q. L. U. 92, S. C. R. 1882. 2. A party will not be allowed to withdraw his inscription for proof in order to inscribe for proof and hearin<,'. Parent v. Laplante, 8 Q. L. 1{. 335, S. C. 1882. 3. Under the terms of the .jlst Rule of Practice it is necessary that in the inscription upon the rJlf il<' droit for Inaring upon the pleadings, the day upon which such hearing will take place bo indicated, as well as in the notice thereof, without which such inscription wi'l bo declared null, and the case struck from the role. Kvuiitiirel it vir v. Kraiitun-l, 14 L. C. R. 151, S. C. 18t54. 4. A party has no right to inscribe for cnquete and merits for a day certain, even upon giving notice to the adverse party, unless it be by con- sent, and upon filing such consent the case will be fixed by the court. Leinieud- v. lirwhu, 10 L. C. R. 48, C. C. 18tJ5. 6. Where a party has inscribed a case generally on the merits he can- not afterwards say that ho oidy intended to inscribe it in part, and a final judgment on the whole case will not be disturbed. Katlian v. Kuthiin, 1 L. C. L. J. 107, S. C. K. 1805. 0. Notice that a case has bean inscribed on the r61e for enquCte and merits, given within the prescribed delay before the day fixed is sufticient, provided the case is actually inscribed before the day fixed. iJionne et ul. V. Valleuu et al., 2 L, C. L. J, 112, Q. B. 1800. 7. At least eight days' notice must be given of an inscription for an en- qufite and hearing at the same time. Tri-m'ilay v. DAubrevHle, 17 L. C. J. OF SUMMONING WITNESSKS, ARTS. 248-244. 189 75, S. C. 1873 ; Sliiitor v. aiiiinii, 5 L. C. J. 43, S. C. 18(10; Kent v. Cmuwell, 8 L. C. J. 12, 8. C. 18(53 ; Vomh el at. v. Cojihi, 8 L. C. J. 12'.>. S. C. 18(il ; Aliaire v. Mortimer, 17 L. C. J. I(i8, 8. C. K. 1878. 8. And a simple receipt of copy of Hiich inscription is not a waiver of the ri>,'lit hereafter to object to the sliortness of the notice. AUtiire v. Mortimer, 17 L. C. J. 1(18, 8. C. U. 1873. Heo post, art. 4(12, for notice of inscription in law or upon the merits ; and ante, art. 23r), for notice of inscription for proof. !(. To inscribe foe enijiioto and final hoarinj^ on the merits the party bo inscribin(4 must have notiiicd his adversary of his option^ o to inscribe, previous to the inscription for en(iu6to alone. fVood v. Siciiibitriu', 14 L. C. R. 152, b. C. 18(14, See Art. 234, Nos. 4 and 5 ante. 10. The option of a party that the case should bo inscribed for proof and hearing! in terms of article 243 is sufliciently made by service on the oi)po8ito party of an inscription upon the ri'le de droit for enquOto and hearinti on the merits at the same time. Simpnon et al. v. Howie et al. 17 L. C. J. 2H, K. C. 1873; Merrh,int*' Hank v. Vharle»on et al., 10 Q. L. R. 48, 8. C. 1884. 11. A party inscribin,', naleand assignment which is set ft)rth in tho plaintiffs' declaration is now and has been since tho execution thereof in the defendant's possoHsion, and that the i)aper- writin^' filed by tho plaintifTs as their exhibit No. 12, is a trnu and exact copy thereiif," were a sufficient notice to defendant that plaintitT would produce a copy of the said p!lper•writin^,' at enqu^te, and then prove it to bo ti'ue, and ;ilso a snfificient notic- to the defendant to produce tho orif^inal thereof if he tiioufjht lit. Ilcrriman it u.r v. Tiiylor, ii L. C. J. 2,')3, (^ h. 1H(J5. S4(S. Any person residing in Upper Canada may be compelled to appear as a witness, if the court or judge deems it necessary ; ijrovided an action for tho same cause be not pending in Ui)per Canada. C. S. C. c. 79, ss. 4, 5, G. ai7. The witness in the case mentioned in the preceding article cannot be summoned without a special order granted by the court or judge, if deemed necessary, and such order must be mentioned upon the subpoena. Ibid. a. 7. 34H. Subpa?nas are served in Lower Canada by a bailiff of the jurisdiction in which the witness then is, or accord- ing to the provisions of article 461, and in Upper Canada by any person whatever, who must return an affidavit of auch service. Ibid. s. 10. See 33 Vic. c. 17, s, 1, under art. 48, ante. OF 8UMM0NIN0 WITNESSES, AIIT. 240. lUl *249» Any wittioss, duly suininonGd, who, without Hutli- cieiit cause, t'ailH to attend at thophice and time appointed, may, upon a rule served upon him, bo condemned, by the court or judj^e presiding at proof sittings, to a fine not ox- ciHiding forty dolbirs, to be recovered, for the use of the crown, in the same maimer as any other sum awarded by judgment, independently of any recourse the party who summoned him may have for damages caused i)y .,.ich de- fault, and of Imprisonment for contempt, if it lies; provided that at the time he was served with the subpcuna a suffi- cient sum was tendered to him for travelling expenses, at the rate usually allowed by the court of his domicile. If the person sumn)oncd to appear as a witness i 'ides in Ui)per Canada, h(! can only be punished for his de'ault by the court within whose jurisdiction ho resides, upon a certificate transmitted by the former court of his default to appear according to the foregoing provisions. C. S. L. C. c. H3, ss. 104, 101) ; C. S. C. c. 78, ss. 8, 9 ; C. P. Genc've 182 ; C. P. C. 'im ; C. P. L. 135. 1. In onlor to liolil a witnosB for default for non-appearaiico, it ia ntct'HHary ti) otfur him liiH exiiciiHus t^oing aiul rcturniiij^. I'aulet v. Larivirre, !» 11 L. \W, H. C. 1h71. '2. A rule of ciontcmpt will not lio unlcHS it ia proved by aftidavit of perHoiiiil Kurviuc, tender of reasonable oxi)cnHeH, and wilful diBobcdionco. SmUm V. ItoMon <(• /•,>/«, 5 L. (J. J. 'M\, S. C. 18(11. ;J. It JH not neocHHary to prove the perHonal Horvico by affidavit, nor that the oritJ;iMul writ was exhibited to the witnesa, nor that tender waa made of fees and expenues. Joseph v. Joneph, 8 L. C. J. 41, 8. C. IBCiJ. 4. Writs of protection will be issued upon cause shown to protect a witness from arrest on civil process, such protection to be within the discretion of the court. Milhr v. Shaw et al., 15 L. C. J. '218, S. C. 1H71 ; .S7(nT V. McOonaU et «/., H L. N. 400, 8. C. 1880. 5. A writ of protection aj^ainst civil procosa will not be grauted. Hm V. Charlaiid, 12 U. L. 608, 8. C. 1884. G. Where a subpooua waa aorved on a corporation which neglected to obey it, and a rule waa applied for against it, it waa refused as ihe court would iasue no order it could not execute. Gowie v. Trudeau et al., 2 L. N. 60, S. C. 1878. ' Any person who is present in the room in which the proof is being taken may be examined as a witness, and is bound to answer, under the same penalties as if he had been regularly summoned. 2Sil» Any party to a suit may be subpcenaed, examined, cross-examined, and treated as any other witness ; but his evidence cannot avail himself; [the adverse party may how- ever declare, before he closes his proof, that he does not intend to avail himself of his testimony and in such case it is deemed not to have been given.] [The answers given by a party thus examined as a wit- ness may be used as a commence ^.^ent of proof in writing.] C. S. L. C. c. 82, s. 15 ; c. 83, ss. 100, 108, § 11 ; 12 L. C. K. 399. 1. The answer of a party to interrogatories mtr faits et articles has a retroactive effect, and, as a comrnenceiiwnt dc preitve par Jcrit, will legalise oral evidence previously produced. Beaudrij v. Ouimet et al., 9 L. C. J. 158, S. C. R. 18(;5. 2. The evidence of a party in a case who has assigned during its pen- dency can be taken on behalf of the assignee, who has taken up the in- stance. McFee v. Bowie d- Brown, 13 L. C. J. 335, C. C. 1869. S. An insolvent may be a witness for the assignee, even when the in- solvent himself was a party before the assignment. Barthe esqual. v. Millet, 3 R. L. 525, C. C. 1872. OF SUMMONING WITNESSES, ARTS. 251-252. 193 4. Action was brought against the defendant as having been a secret partner in a firm to which the goods were sold — Held, confirming the judgment of the Court below, that the evidence of one of the other partners was inadmissible on behalf of the plaintiff, and it was accord- ingly rejected. Chapman v. Massoii, 2 L. C. J. 216 and 8 L. 0. E. 225, Q. B. 1858. 5. The evidence of co-defendants who have plaaded separately may be taken separately, the one for the other. Borthwick v. Bryant et al., 5 R. L. 449, S. C. R. 1874, and Close v. Dickson, 4 R. L. 141 and 17 L. C. J, 59, 8. C. 1874; The Bank ofB. N. A. v. CnvilUer et a/., 4 L, C. J. 241, Q. B. 1859; David v. McDonald et at., 11 L. C. R. 116, S. C. 1860. 6. Under no circumstances can the defendant be examined as a witness in an action for separation from bed and board, to prove the plaintiff's case. Duchanne v. Loiselle, 27 L. C. J. 145 ; S. C. 1883. See Stark v. JIassey, under C. C. P. 225 &nte. 7. A party to a suit may be examined for the purpose of contradicting an authentic document upon which he relies. Du/resne v. Dufresne, 9 R. L. 372, S. C. 1877. 8. The attorney of either party cannot be a witness in the caase. Boisvert v. Bernier, 9 R. L. 509, 8. C. 1878. 9. The attorney of record even in a non-commercial case, may be heard as a witness on behalf of his client, if parole evidence is admissible. Les Dames Vrsulines v. Kijan, G Q. L. R. 38, C. C. 1879. 10. See Worthinyton v. .S'(. Jacques, 3 L. N. 143, and Molson v. Carter, 3 L. N. 258, Q. B. 1880, where the practice of attorneys giving evidence on behalf of their clients is discountenanced. 11. A party who has no personal interest in the suit, although indivi- dually named in the record, may be examined as a witness on behalf of those whom he represents. Fair v. CassiU, 2 Q. B. R. 1, 1881. 352. Relationship or connection by mar lu,ge, except that between consorts, and interest, are not objections to the competency of a witness, but only to his credibility. Upon the iinprobation of an authentic deed, the testimony of the notaries, atte.sting witnesses, or other functionaries who witnessed the deed may be received. C. S. L. C. c. 82, s. U ; 4 L. C. E. 228. 13 F. c. c. p. pH m n 194 OF THE EXAMINATION OF WITNESSES, ARTS. 252-264. 85 Vict. c. 9. (Que.) " 9. Nevertheless, if consorts are separated as to property, and one of them, as ugent, has administered property belonging to the other, the consort who has so administered may be examined as a witness in rela- tion to any fact connected with such administration ; provided the court or judge shall, in view cf the circumstances of the case, deem it just and advisable to order such examination. Whenever such examination phall be allowed, it shall be as unrestricted as would have been that of the other consort, whether »m regards the admissibility of verbal evidence or oth.irwise." 1. The provisions of 35 Vict. c. 6, s. 9 {Que.) do not mean that a party may examine his own wife as a witness when she has had the adminis- tration of his property, but that he may examine the wife of the adverse party in such case. Foisy v. Leffhvrc, 4 R. '. 504, S. C. 1872 ; Brush v. Stejihcns <<'• vir v. St<'phens lO rir, 15 L. C. J. 140, S. C. 1873 ; Larean v. lieaudry, 22 L. C J. 33C, S. C. 1878; LeveilUv. McGrcery, 9 R. L. 382; S. C. 1877. 2. The husband may bo examined by the defendant ^vhere the wife declares that it is he manages her property. Johiuwi v. Martin, 5 R. L. 336, S. C. 1872. :. (-1 \t 3. In commercial cases, a solicitor in law may be a witness for a party for whom he transacted. Melaucon\. Beaupr^, OR. L, 509, 8. C. 1874. See cases under 251 ante, and 275 post. 4. A tutor appearing A qualitJ for his pupil io a competent witness for the latter. His credibility only is affected. Tliompnon et al v. Pelletier, 7 Q. L. R. 59, S. C. 1881. 333* If the person to be summoned as a witness is in prison, the party requiring him may, upon petition, obtain a writ of habeas corpus ad testificandum, ordering the gaoler to bring him befora the Court to give his evidence. Lan- guedoc v. Laviolette, 18 April, 1854 ; 1 Pig. 227. § 3. Of the examination of witnesses. 254. Any person may demand that during the exami- nation of any witness, the other witnesses should be out of the room -n which the examination is taken. C. P. C. 262 ; 1 Pig. 280; Ord. 16(>7, tit. xxii. art. 15. ; ! OF THE EXAMINATION OF WITNESSES, ARTS. 254-261. 195 1. An order that all the witnesses withdraw from the Court-room except the one under examination, is not demandable of strict right. Gugy V. Donoghue, 11 L. C. R. 421, Q. B. 18(51. fiSiSi, Before the deposition of a witness can be taken, he must swear before the judge or the prothonotary to tell the truth, or in the case of a Quaker, the word swear is re- placed by the words solemnly sincerely, and truly declare and affirm. 350. The form of oat'i and the manner of taking it may be changed, according to the religious creed of the witness, in such a manner, however, as to bind him to declare nothing but the truth. 1 Pig. 262. 357* Any witness refusing to take the oath or affirma- tion is deemed to refuse to give evidence. 1 Starkie, 91 ; C. P. L. 137. *2!iH. A witness who is present cannot refuse to give evi- dence, under pretext that the necessary amount to defray his travelling expenses has not been paid to him. 259* Before the witness is admitted to be sworn he may be examined by either of the parties as to his religious belief; and he cannot make the oath or the affirmation, nor give evidence, if he does not believe in God, and in a state of rewards and punishments after death. 1 Starkie, 21, 94. 2U0* No person can bo a witness who does not know the importance of an oath, or who is not in the exercise of his mental faculties. C. P. C. 285. SOI. [Deaf mutes, who can read and write, may be ad- mitted as witnesses, their oath or affirmation and their answers being written down by themselves.] 1 Pig. 283 ; 3 Bioche, No. 428. in J!/ M * I II I m ' •S . 196 OF PROOFS TAKEN BY A JUDGK, ARTS. 262-263. 303> No bailiff ''^o has served the writ of summons in any suit or action can be a witness in support of the plain- tiff's deniand, except in respect of such service. C. S. L. C. c. 83, s. 168. 1. The bailiff who has 8 i the summons may be a witness so lor.<| as it is not intended to pu admissions made by or conversations had with the defendant at tho time of the service. Garneau v. Courchhie, 6 Q. L. R. 34, C. C. 1879. 2. The bailiff who served the inscription upon the attorney may be a a witness as to the facts in issue on the suit. Rivard v. Courtemanchc, 11 R. L. 106, C. C. 1881. § 4 Of proofs taken by a judge. 203. In contested cases, the witnesses are examined in presence of a judge, the opposite party being either present or duly notified, and the iudge may ask the witnesses any questions he may deem necessary. He takes down or causes to be taken down in writing, under his direction, notes of the material parts of the evidence, and of all ob- jections insisted upon by either of the parties, and of his decisions thereupon. C. S. L. C. c. 83, s. 95. 34 Vict., c. 4, (Que.) 2. " And the Judge may order as many cases to proceed before liim at th'^ same time as in his discretion, ho deems expedient." See also 33 Vict., c. 18, s. 1, under Art. 239, ante ; and 35 Vict. c. 0, ss. 11, 12, Art. 398, post, as to evidence taken by stenography. 47 Vict. c. 3, (Que.) . 4. With respect to enqufites in the districts of Quebec, Montreal, Three Rivers, and St. Francis, Articles 2G3 and 2()4 of the Code of Civil Procedure and the Acts 33 Victoria, chapter 18, 34 Victoria, chapter 1, and 35 Victoria, chapter 0, in so far as they may affect such articles are amended so that proof may be adduced as follows : a. Without prejudice to Articles 263 and 264 of the Code of Civil Pro- cedure, as to the manner of proceeding and the power given to the judge by those articles, the judge may order and either of the parties may re- quire, that the evidence be taken by moans of stenography. h. The stenogi'aphers employed shall bo appointe A witness may object to answer questions put to him, if his answering would expose him to a criminal prosecution. This objection can only be made by the witness himself. 1 Starkie, 192-8 ; 2 Powell, 388 ; 1 Greenleaf, 545 ; C. P. L. 13C. 1. Where an attorney ad litem is witness for his client, and objection is taken to a question put to him, he cannot himself appear before the court to maintain the pertinency of the question, but his client must be represented by another counsel. Amjers v. Lozeau et vir ami Lozcan et vir, 12 L. C. J. 214, S. C. 18()«. N #0 i 2. In !i qui tarn action, the defendant may refuse to answer the ques- tions put to him on the ground that any answer he would give would have a direct tendency to criminate him. Uiirton v. Youn' If 3 IK- 1*-' ■'■Miff 7 i7,' H!;>' -■h\ :r ■ .■ ■! ,.i I 4. n. M. 202 OF PnoOFS TAKKN BY A JUUOK, ARTS. 276-279. 8. On an inscription in improbation of a will — Held, in appeal, that the notaries before whom it was passed could not be comiielled to ^^iv0 evi- dence to controvert the truth of what they had certified in such deed. Jtoutier v. Itobitaille, 8. 11. 440, K. U. 1830. 9. In an action on a promissory note, tlie evidence of the notary who made the protest is inadmiHsible to contradict tliu evidence filed by the plaintiff. Doncin v. Kvam et al., 1 L. C. R. 100, S. C. 18C0. 10. The notaries to a will or otlier authentic instrument are competent witnesses in proceedings in improbation impu^nin^ the validity of such will oc authentic instrument. WelliiKj v. Parent, 4 L. C. It. 228, S. C. 1854. 11. A physician cannot refuse to disclose informtitiDu acquired by him confidentially in luu professional character. lirown v. Carter, U L, C. J, 168, 8. C. 1866. 370. A witness is bound to produce any document in his possession touching the matter in issue, and to allow a copy or extracts thereof to be taken, if it is a private writing ; and such copies or extracts, certilied by the prothonotary, are entitled to the same credence as would be given to the originals. 277. Any 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 imprisonment to do so. *27S, A witness cannot withdraw without the permission of the judge. C. P. Gen6\j, 198. I'M 370. If the examination of a witness cannot be com- pleted on the day he appears, he is bound to attend again on the next following juridical day, or on such other day as is assigned to him by the judge, which day is mentioned in the notes of his evidence or entered upon the registers of the court, and in default he is liable to the same penalties as for refusing to attend upon the subpmna. OF PROOFS TAKEN IIY A JUDUE, AliXS. 280-282. 203 SIHO* It is the duty of the judge to ask the wilneHses if they require taxation, and if they do to tax their expenses, with due regard to the nature of the voyage and the dura- tion of their stay. Ord. 16G7, tit. xxii., art. 19 ; C. P. C. 274, 277. Vide 33 Vict., c. 18, s. 1, under nrt. 239 ante. 2M1. The taxation may be enforced by execution against the party who summoned the witness, after the delay, and in the manner prescribed for any judgment of the court. And execution may be sued out by the witness against the opposite party condemned to pay the expenses of such wit- ness, provided that no execution has ah'eady 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 rcceii»ted bill of costs. C. P. Geneve. 200; C. S. L. C. c. 83, s. 153. 1. Thk. attorney is not roaponHi^'lo for tho indemnity clue to the witnesses Biimmonoil by him at the request of his cHent. Laroche v. Holt et nl., 3 L. C. It. lOS), C. C. 1H,>3. '2. The ri^'ht of a witnesH is to bo taxed in tho Court in which he is eKamined, and not to sue on a quantum ineniit for attendance and loss of tunu as such witnos.i. " rie v. The Mayor, lOc of Moiureal, 8 L. C. it 23(1, S, C. 1858. :i. A witness cannot maintain an action for the amount of his tax- ation, his proi)er course bein^ a writ of execution against the effects of the party who summoned iiim under '22 V. c. .'» h. !•. }'ei!ttit.r v. lii/an, \) L. C. R. C, C. C. IH.'jH; !>,■ licaumont v. Papineuii <('• (laiithier, 11 L. C. J. iU, a. C. 18G0. 2MS. When one party has closed his proof, the other party may enter upon his coinitor-proof and have his wit- nesses examined. 1. The court on cause shown will dischar^je a case from the r61o for hearing on tho merits, and permit tho eiiqufito to bo re-oponed for the examination of a witness, and will also permit the plaintiff to tile his declaration that he intends to make use of the defendant's deposition, (I 't im ^m;^ {III B||;? 'fJ^f 204 OF PROOFS TAKEN DOWN AT LI.NOTII, AUT8. 282-284. notwitliHtiuuliii^' tlittt ti (leclunition to that otToot has boon provioiiHly rejected frotn tliu roconl on tlio dufondiint's motion as irronularly fllod. lleaudry v. iMnut ,'t ,'e is satisfled on tho evidence of tlio prothonotary or otiierwiso that it cannot be found, an order may bo issued for tho examination of the witness ile novo. Mdi-farlune et al. v. Court, 11 L. C. J. '23r>, 8. C. 1S70. See O'Coniu'll v. The Corporation of Montreal under precoedin^ Article. § 5. 0/ proofs taken doivn at Iftujik. SMI. Upon the consent in writing of all the parties to a case, and subject to such additional costs and fees as may from time to time be fixed by tariff, the proof may be taken down in writing in the manner hereinafter itrovided, either before a judge or before the prothonotary, who, in such case, may exercise all the powers of a judge, except as to the objections which must be reserved for the decision of the latter. If the judge is unable to attend court on the day fixed for taking proofs, the prothonotary may preside over them, and in such case he exercises all the powers of the judge except as regards the objections made by either i)arty, which must be taken down in writing and reserved for the decision of the court at the final hearing of the case. 0. S. L. C. c. H3, s. 18 ; '27-28 Vic. c. 39, ss. 16, 17. OF PROOFS TAKEN DOWN AT LENGTH, ARTH. 284-288. 206 Soo 33 Vic. c. 18, s. 1 (Quo.) under art. 289 ante, and Exi'lutwjc Hank v. Craitj, under art. 234, No. fi, ante. *2H!i. With the consent of tlie parties, proofs may bo taken on any juridical day durinj^ term or vacation, before the prothonotary, who presides over them and acts in the manner hereinbefore provided with respect of proof sittings. See 33 Vic. c. 18, s. 1, under art. 231) ante. iiHil, The court or judge may assign the dilferent rooms wherein proofs nuiy bo taken in the court house. C. S. L. C. c. 83, s. 17. I8M7« Tlie witnesses must take the necessary oath or affirmation before tbey are examined, and the prothonotary must make a note of the fact of their having done so. 1 Pig. 279. See 33 Vic. c. 18, s. 1, under art. 239 ante. 12MH. The deposition of each witness is written out at full length by the prothonotary, or by some person employed by him for the purpose. The commencement of the deposition must mention : the name of the person presiding over the proof ; the designa- tion of the parties ; the names, surname, age, (quality or occupation and place of residence of the witness ; and the fact of his being sworn. Ord. 1007, tit. xxii., art. 14 ; C. P. C. 202. See 33 Vic. c. 18, s. 1, under art. 239 ante ; and alsc IS Vic. c. 0, 88. 10, 11, 12 (as to evidence taken by steii.) graphy), under art. 398, post. 1. Tlio omiHHion of tlie a^o of a witness from a dopoBition is not a cauHO of nullity in his ovidenco. BarHulo v. MuKnicotte, S II. L. 5'2G, S. C. 11. 1873. 2. If the deposition do not state the witness is or is not of kin to the parties, it may be set aside. Stack v. King, 3 Lev. de hf^ti., 357, K. B. 1821 ; Lauzon v. Stuart, 4 L. C. J. 120. If M 1 IP 1 1 ; I r >'•'., t I iliiH 1 ( M J •■•■■■ -■ f ' - t i hiih^-j—l iiliiM ',i P^Kai '. •!?■ KS^Hi' -;i If If;' I I !.■•!* <1i t.l L. 4 m >''m m 1. IV 1 I 'J I h' IPSJI 206 OF PROOFS TAKEN DOWN AT LENGTH, ARTS, 289-291. 2J*9. The deposition must contain all that the witness declares concerning the matter at issue between the parties, without omitting any of the circumstances, and as much as possible in the words used hy the witness ; unless, upon objection by one of the parties, the judge orders otherwise. Ibid. Art. 17 ; C. P. C. 271. 21»0. If the parties disagree as to the pertinency of any question or cross-question, it must be written down in the body of the deposition, either to be submitted for the deci- sion of the judge or to guide the witness in his answer. 1. A motion to reject evidence taken at enquete under a reserve of objections cannot be made until the final hearin;, of the case. Millar v. Darlinp et al., 14 L. C.J. Ill, S. C. 18« coministiiou roijtitoire issued by them and not re- turned, and that defendants were, under any circumstances, entitled to adduce evidence after the return of the commission. Fouler et al. v. Cham- berlain, 2 L. C. J. 28o, S. C. 1858. § 6. Of proofs before examiners. 300. The court may appoint a competent person as an examiner to take the prorf when, by reason of the nature of the dispute, or the number and distance of the witnesses to be examined, or the intricacy or multiplicity of the facts OP PROOFS BEFORE EXAMINERS, ARTS. 300-305. 209 to be proved, or any other sufficient cause, it is shown to the court, by any of the parties concerned, that the ends of justice will be better attained by the appointment of such examiner. C. S. L. C. c. 83, s. 108. 1. Kevision of rulings of an examiner considered. Leclerc v. JnUette Mutml Fire Iiis. Co., 4 L. N. 221, S. C. 1881. 301. The rule appointing an examiner must specify the place where the proof shall be taken, and the delay within which it must be concluded. This delay may be extended by the court or judge upon sufficient cause shewn. Ibid. 303. The examiner, before entering upon his functions, must be sworn before a judge, or a Commissioner of the Superior Court, to fulfil his duties faithfully and impar- tially ; and such oath must be in writing and be annexed to his return. Ibid. 303> He must give the parties at least eight days' notice of the time and place at which he will begin the examina- tion. Ibid. § 4. 304. Tbe witnesses are summoned, by means of a writ of subptpna issuing fiom the Court before which the suit is pending, to appear before the examiner, who may admin- ister the oath to them, may receive any documentary evidence produced by the parties, and has all the powers of a judge presiding over proofs stated in § 4 of this section. Ibid. § 5-6-7-8-9-10. 305. Any party to the suit may also be summoned to answer interrogatories upon articulated facts viva voce before the examiner. The latter may administer the necessary oath, and put such further questions as he may deem necessary and pertinent. If the party refuses to answer any such questions, they are reduced to writing, and the facts contained in them are held to be proved. 14 F. c. c. p. ft hbI^^I i^H^^BB 1; II 1 mm ^' m^m ifP m Ili:i'^' I'M .'.Mb 'I / w, . 1 w . K\ \ J. > 210 COMMISSIONS FOR EXAMINING WITNESSES, AIITS. 305-308. If the party summoned fails to appear, the party who took out the order cannot take advantage of the default unless he has caused him to he served with the interroga- tories which he intends hira to answer Ibid. § 11. 300. After completing the proof, the examiner must make a return of his proceedinin''^ on or before the day fixed by the court or judge. Ibid. § 12. § 7. Of commissions for the e^nnination of witnesses. 307. When any of the witnesses or the parties reside beyond Lower Canada, or even within Lower Canada at a distance of more than thirty miles from the place where the Court is held, the party who requires to examine them may obtain a commission appointing one or more persons to receive the answers of such witnesses or parties. C. S. L. C. c. 83, ss. 25, 105, 106 ; C. P. L. 138. 30S. Application for that purpose must be made [by the plaintiff,] within four days after the articulations of facts are completed ; except under particular circumstances, left to the discretion of the court or judge. Such an appli- cation by the defendant must be made within the same delay if the case is to be tried by a jury or is inscribed at the same timis for proof and hearing ; [but if the proof is taken in writing at length, the defendant may make the application within the four days after the closing of the plaintiffs proof. It may be granted by the court or by a judge in vacation, upon its being satisfactorily shewn by affidavit that the commission is necessary, and after notice to the adverse party. Ibid. ss. 100, 107, § 2. 1. In a case of capias — Held, tliat a consent motion for a commi»»ion ropatoire to examine witnesses in llpiier Canada would be granted in chambers. Mom et al. v. Wilson, 14 L. C. 11. 20, S. C. 1803. 2. A commimkm royatoire may issue de piano on motion tiiercfor without affidavit of any kind. Willia et al. v. Pierce, 2 L. C. .J. 77, S. C. 1858. COMMISSIONS FOR EXAMINING WITNESSES, ARTS. 308-312. 211 3. An application for a comminnion rogatoire to adduce evidence against the validity of a power of attorney, not attacked by any pleading, can- not be allowed. The Canada Tanniiiij Extract Company v. Foley, 20 L, C. J. 180, Q. B. 1875. 4. An application by a defendant for a conimixsion royatoire must be made within the delay specified in Art. 308, and will not be granted afterwai'ds except on special cause shown, and in the discretion of the judge. Harvey v. PhilipH, 14 L. C. J. 279, S. C. 18G9 ; De>imulle8 v. Hiyginxon, 12 R. L. 605, Q. B. 1865. SOU* The commissioners are chosen as follows : If both parties join in the commission each furnishes four names. From the list thus formed each party alter- nately strikes out two names ; this is done in the presence of the judge, who out of the four remaining names chooses three, to whom the commission is addressed. If both parties do not join in the commission it is ad- dressed to persons chosen by the party who applies for it. Ibid. 8. 105, § 3. 310. The court or judge fixes the number of commis- sioners who must be present in order to execute the com- mission, and gives direction and authority for swearing witnesses. Ibid. s. 107. 1. Where a writ of comminsion royatoire has been addressed to six commissioners of whom three have been named by each party, and the writ directs that any two of the commissioners may execute it, the execution of the writ by two of the plaintiff's commissioners, without explanation why the others did not join, is suflic'ent. Tarrat et al. v. Foley et al. 11 L. C. J. 140, S. C. 1865. 311. Annexed to the commission are the interrogatories and cross-interrogatories of each party which shall ha\ ^ been allowed by the judge after due notice to the other party. Ibid. s. 105, § 2. JJIJJ. The commission must also be accompanied with instructions addressed to the commissioners, under the sig- nature of the judgo, to guide them in its execution. Ibid. 8. 107. M m "A i ' 'M 1 "> m 212 OF PROOFS EX PARTE, At'i'l. 318-317. w .-,1" 1(1 it 313. The return consists of a certificate of the commis- sioners who acted, endorsed upor.! the commission, and stating that the execution appears by the schedule thereto annexed. . The return must be under a sealed envelope, upon which are endorsed an indication of its contents and the name of the cause. It cannot be opened and published without an order from the court or judge. Ibid. s. 105, ^ 2. 314. The party who applies for a commissiou raust him self see to its being transmitted and executed. Ibid. § 3. 319* If both parties liavn joined in the coniTnission, both are equally bound to have it transmitted and execute I. Ibid. 31A« A failure to retin n tUo commission will not preveiit the court from proi'.eedij;g with tlie hearing in the followiiifi; cases : 1. If it appears that the party applied for the commissiou solely in order to retard the judgment ; 2. If the return has been delayed longer than justice and equity required, fbid. s. 107, § 3. 1. The mere order for a comminsioH rogatoire granted to defendant is sufficient so prevent plaintiffs inscribing the case for judgment, althouj^h the plaintiffs formally notify the defendant in writing to use due dili- gence, and although an interval of fifteen days have elapsed between the date of the order and the day named in the inscription for hearing, with- out »iny attempt being made by defendant to sue out the commission so allowed to issue. Turret et al v. Ban.:r et al., 10 L. C. J. 27, S. C. 18G5. 2. In the absence of a commisnion rofjatoire issued by the plaintiff the defendant cannot be comi)elled to proceed with the enqufite. McFarlane V. Bresler, 2 L. C. R. 238, S. C. 1852. § 8. Of proofs ex parte. 317* When the defendant fails to appear or to plead to the action, the plaintiff, in suits other f.han those mentioned in articles 89, 90 and 91, may inscribe his case for proof in OF THE INCIDENTS OF PROOFS, ARTS. 317-320. 218 term or out of term, if any is necessary, and such proof is then proceeded with before a judge, or before the prothono- tary who must swear the witnesses, take notes of their evi- dence, and do whatever else it would be the duty of ^a judge of the court to do in matters of proof. A defendant foreclosed from pleading is entitled to at least 01 I • clear day's notice before proof; and he may cross- oamiiu: l.he witnesses, and make such objections as he thinks proper, of which the prothonotary must take notes ; but he is not entitled to produce witnesses. Proofs ex parte may be taken at any time, except be- i\s& n tl) J ninth of July and the first of September. C. S. L. C. c. 83, ss. 13, § 2, 16. 98, 99. Seo 47 Vic. c. 8, s. 3 under art. 1, ante. 1. A party foreclosed is entitled to one juridical day's notice of inscrip- tion for enqufite. lienaud v. Gugy, 8 L C. R. 4G0, Q. B. 1%L%. i. And the notice of inscription must specify the particular days on which the enquSte and hearing respectively will take place. Smith v. O'Farrel, 9 L. C. R. 392, 8. C. 1859. 3. A defendant foreclosed from pleading has no right to inscribe the cause for proof ex parte. Iluijhes v. Reed, 3 L. N. 37, 24 L. C. J. 41, 8. C. 1880. 4. A party inscribing his case for proof under 317 C. C. P., must give notice thereof to the adverse party. Guilbault et al v. Vadenais, 1 Q. B, R. 228, 1881. *SIH. All evidence ottered by the plaintiff is filed and remains in the record in the same manner as if the defen- dant had appeared and pleaded to the action. Ibid, s. 102. § 9. Of the mcidents of proofs. 310. All applications to the court upon any incident of the proof may be made by motion, stating succinctly the object and reasons of the application. 320. The Court may, at any time before judgment, in its discretion and under such conditions as it deems just, , ji '\- .it''' :;-!i;r;r:!,; \ ''■■'^3 'Ml: .1,'. !.l /' W'*^idUl'« -?^« ! 1 1 11 'I i I r If. m 214 OF THE INCIDENTS OF PROOFS, ART. 820. '!;•■ allow any pleading to be amended so as to agree with the facts proved ; and any pleading is sufficiently sustained if the facts alleged agree sufficiently with the facts proved, and if in the opinion of the court the opposite party has not been led into error as to the real nature of the facts in- tended to be alleged and proved. Ihid. s. 77, § 2. See Lanthier d- Champagne, 23 L. C. J. 253, Q. B. 1874. 1. A clerical error of date can be amended at the final hearin(». IIuMy V. Morlaml, 2 L. C. J. 277, S. C. 1858. 2. Where the defendant moved before oiKjudte to amend his plea on payment of costs, supported by an affidavit to the effect that, owing to absence from the country and sickness, lie had boon unable to j>ivo proper instructions to his attorneys, and afterwards moved a similar motion at the hearinf?, both of which were rejected — Held, in review, that the iinal judj^mont would bo reversed, and the defendant allowed to plead de tuwo on payment of all costs, considering that sufficient causo had been shown to authorize the amendment. La»ell v. Brown, 10 L. C. R. 151, S. C. R. 18(55. 3. In an action in improhation — //<7ri, reversinj:; the judj,'ment of the court below, that after enqufito the plaintiiT was entitled to amend moiji-ns de faux by adding thereto new facts brought out by the evidence adduced. PerrauU v. Simard, « L. C. R. 24, Q. B. 185(;. 4. Where it results from i\w )>roof that the allegations of the declara- tion do not accord precisely wi. '^p facts proved, the declaration may be amended on payment of fifty i-s costs without prejudice to the evidence, and with power to the defendant to replead within eight days. Boudreau v. Lavender, 2 L. C. J. 194, S. C. 1858. 5. Where, lu a rule for [)eremption, the first name of one of the par- ties was written " I.nuin " instead of LewiK in the endorsation of the rule — Held, not to be a fatal error as the names were idem nunaiiii. Far- iiam V. Joyal, 4 L. C. J. 128, S. C. 1859. (5, Where the declaration alleged that a slander was spoken in 1881, and the plea denied the utterance then or at any other time, and thu proof established utterance in 1879 and 1880, the variance was held to be im- material. Denis v. Tlieoret, 27 L. c:. J. 12, 5 L. N. 1()3, 382, 8. C. R. 1882. 7. In cases of amendment of the declaration to make it agree with the facts proved, the costs are at the discretion of the court. Frothinyhani v. Gilbert, 3 L. C. J. 136, S. C. 1858. K: OF VIEWERS AND EXPERTS, ARTS. 820-322. 216 8. On an oppobition to a judgment, after argument, certain receipts wore found, Bliowiug that the whole of the amount had been paid. Tlie opposant then anked to bo entitled to amend on payment of coBts. Motion f^rantod. JohmUm v. Watt^ and UVi/M, 1 L. C. L. J, 122, S. C 1860. 9. If a copy be taken from a regiHter in the archives of the court by the prothonotary, and he has omitted to sif^n the certificate, the court will direct it to bo perfected. De \eau\, Hliephanl, 2 Rev. de L6g. 336, K. B. 1820. See Arts. 17, 53, 118, 112 ante. SECTION IV. OF EXPERTS, VIEWERS, REFERKNCKS IN MATTERS OF ACCOUNT, AND AlUilTltATORH. 8S1* Before decidiuy upon the 5iierilH of the case, the court may, if necessary, or(l(n- an extraordinary investij:;ation in the case.s hereinafter muntioncd, either before, during, or after the proof. C. S. L. C. c. 83, s. 81. 1. Whore a question arose concerninj^ tho sij^'naturo to a promissory note, and motion was made to refer the niattor to experts — Ilelil, that tlio twelfth title of the Ordinanco of 1(1(17 was in force in Lower Canada, ulthoufjh not employed for many years, and that the inobservance of a law or ordinanco for any lenj^th of time did not affect its abrogation. Lordw LanriHi't ul, 1"> L. C, K. 4")2. C. C. 18(15. § /. Of viiircrs atul experts. •S23* Whenever the facts in contestation between the parties can only be verilied by view of the object or pre- mises, or whenever the evidence iiroduced by each party is contradictory, or when the nature of the contest requires it, the court may, of its own account or upon the appHcation of either party, order the facts to bo veriiied by experts and persons skilled in the matter. The order for experts must specify clearly and distinctly the matters to be veritied. 1 Pi^. 21)8 ; Poth. Proc. 44 ; C. S. L. C. c. 83, 8. 81; C. P. C. 302. m 1 ! .*■ 1, \ .1,'t ■;.' r 210 OF VIEWKRS AND KXPEKT8, ARTS. 822-826. 1. Experts may be appiiintod for the piirpoHo of oxamiiiiiif{ accoiiiitB and asoortainiuK their corructnoBB, and may furniHh a balance-sheet of the expenses and receipts of the businesH. Tai>Un v. Jierket et al,, 15 L. C. J. 2«, 8. C. II. 18(i!>. 2. In nn action of damages for trespass and for cutting timber, etc., on the proi)erty of the plaintift, the (luestioii turned upon the bound- ary hue, the property of the one being in Ontario and the other in Quebec. The court ordered an crpertine to estahiinh wliether tlie tim- ber alleged to have been cut was so cut on one side or other of the line, Held, reversing this judgment, that the court had no power to name experts for the purpose mentioned, the line to be oHtablished being in the province of Ontario. Skead v. McDonnell, 3 11. C. 4:J, Q. B. 1872. 3. A motion to refer a case to exiierts, before any proof has been adduced, will be rejected, as the court caimot be relieved of the case without necessity. Riinkin v. Lay, 5 R. L. 22(5, S. C. ; Simom v. Bougie, o R. L. 472, S. C. 1874. 333. [The investigation must be made by three experts agreed ujwn by the parties, unless they agree to its being made by one only.: Ord. 1(5()7, tit. 21, Arts. 5), 13 ; 1 Bor- nier, 172, C. P. C. 803 ; 1 Couchot, 88. 1. Under the Code, the appointment of two experts only is irregular, and their report though unanimous, will be rejected. Ouiinet v. I'lcolte, 4 R. L. 702, C. C. 1872. 3S4> If, at the time of the order for experts, their ap- pointment has been agreed upon by the parties, the order records such ajjpointment. 1 Couchot, 88 ; C. P. C. 804. 3*2!i, If the experts are not agreed ui»)u by the parties, the court fixes a day on which th . latter iiust attend be- fore the court or judge in order to appoint them; and in de- fault of >tii or.ler to that elTi'ct eitlier party may summon the other to attend as aforesaid, within a reasonable delay, for the purpose of such appointment. Ord. 1G()7, tit. 21 art. 9; Pothier, Proc. 44; C. P. C. 305. 330. (The parties are bound to attend on the day appointed, and if they then fail to agree upon the three experts the court ajjpoints such exports for them. OF VIEWERS AND EXPERTS, ARTS. 820-830, 217 In the case of any of the experts being >. irlly recused, others are appointed in their stead, in the manner above prescribed.] Ord. 1607, tit. 21, Art. 9, Pothier; 45, C. P. C. 800—30!). fi27» The grounds for recusing an expert are : Belation or alliance, to the degree of cousin-german inclusively ; Intimacy ; Enmity ; Subornation ; Interest ; Being in the domestic service or other employ of one of the parties ; J3eing a party in a similar suit, or the attorney or agent of a party in the case ; And, generally, the grounds of exclusion applicable to witnesses. Pothier, Proc. 45 ; C. P. C. 310. 1. A person who haa actod as expert in a case, and whose report has been rejected, cannot act a second time if hits ap(X)intment be objected to on a now expertine. Auclaire v. Low, 5 L. C. J. '2'23, S. C. 1801. iV2H. As soon as the experts are named, either party may have the order served upon them, together with a requisition calling upon them to be sworn. Ord. 1667, tit. 21, Art. 10. SiltiU. If any one of the experts neglects or refuses to be sworn or to act, either of the parties may summon the other to attend before a judge in order that another person may be named in the propor manner to replace such expert. Pothier, 48, C. P. C. 310. !i:<0. The experts, before taking any proceedings in the investigation, must, on pain of nullity, be sworn to perform their functions with impaitiality and to the best of their ubility. * ' l) I ilk'! < i I i f li • , ' i; ' ' i. fi' !.;i 218 OF VIKWERH AND EXl'EBTS, ART. 880. This oath raiiHt be in writing, and be certified by the per- son who adminiHtors it. V FOU^r No, so. In connc'cti< Ml with Article 830. Till' oath to he aiJminiatcrcd to Experts. I, A. B., of tho parish of , in the county of ({/'then' he ttt'o or more persons to he sworn, say, I, A. li., of , and I, C. I). 9i ) do make oath and Hwoar, that in the presence of E. F., the phiintilY, and G. H., the defendant named in an interlocutory judi^ment pronounced in( here insert the nitme of the eourt) in tlie district of , beariuf^ date the (hiy of , or in their absence, after dun notification shall have been given them, to attend at a place to be designated, and on a day and hour to be specifically named to them I'espec- tively, I will faithfully proceed as an expert to the view and examination required by the said interlocutory sentence ; and that I will truly report my opinion in the premises, without favour or partiality towards either of the said par- ties : So help me God. FORM No. »1. In connection with Article 330. C'ertifieatc to he made and sinned hy the Commissioner of the due administration ort of oxi>ert8, on the ground that one of the partioH had not boon notitie oial nature, and 'i;herefore not susceptible of trial by jury, and so much of the pleadings as pray for a jury trial will be rejected on motion. Ab- bott et al. V. Meiklehametal.,2Ij. C. J. 283, 8. C. 1858. 6. In an action between two merchants for the revuii lioation of goods which had been stolen, a jury trial was not allowed. Fawcett et al. v, Thompson et al., 2 L. C. J. 229, 8. C. 1859 ; Davidmi v. Moffatt et al. Ibid. 7. Trial by jury may be had in an action by a printer arising out of matter connected with his business. Love'll v. Campbell et al., 6. L. C. J. 116, 8. C. 1861. 8. An action en reddition de compte, between two successions is not sufs- oeptible of trial by jury. Mann et al. v. Lambe, 6 L. C. J. 330, S. C. 1801. 9. In an action on acknowledgment of a loan made by a non -trader to a commercial firm, a trial by jury was refused. Wishaw v. Gilmour et al, 6 L. C. J. 320 ; 13 L. C. R. 94, 8. C, 15 L. C. R. 177, Q. B. 1862. 10. Where action was brought by a non-commercial corporation against a trading firm for the recovery of an over-charge on freight, the same judge granted a jury-trial. Her Majesty's Principal Secretary of State for the War Department v. Edmomton et al., 6 L. C. J. 322, 13 L. (\ R. 79, S. C. 1862. 11. And where two actions are joined in the one suit — the one commer- cial and the other non-commercial — a trial by jury will be refused, Mann et al. V. Lambe, 6L. C. J. 75, Q. B. 1862. 12. A demand by a husband for possession of his wife who had gone to live with her father coupled with a demand for damages, may be tried t y a jury. Compte v. Garceau, 8 L. C. J. 131. 14 L. C. R. 446, 8. C. 1864. 13. In an action on a promissory note when some of the endorsers sued were traders and others non-traders, and when the defendants severed in their defence, trial by jury was allowetl on all the issues at once. Evan- turelv . M'ithal, 15L. C. R. 126, Q. B. 1064. 14. An action against a trader by a carter for the drowning of the latter's horses is not triable by a jury. I'oland v. Spencer, 15 L. G. J. 221, 8. C. 1871. 340. It is had at the option of either of the parties, when the amount claimed by the suit exceeds two hundred OF TRIAL BY JURY, ARTS. 349-850. 229 dollars, and only upon the issues raised upon the merits of the case. C. S. L. C. c. 83, s. 26, § 2, and s. 29 ' C. P. L. 494. 1. A plaintiff who haa made option of a trial by jury in his declaration, cannot withdraw it without his adversary's consent. Heyneman v. Davit, '27 L. C. J. 108, « L. N. 184, S. C. 1888. As to form of option see Gilman v. Dougall, 3 L. N. 8r>, S. C. 1880. 350. The option is made either in the declaration or in the pleas, or by a special application to the court within four days after issue joined, or, if these four days expire out of term, the application may be made on jhe first day of the next term, provided notice be given to the opposite party within four days after issue joined. 04th Rule of P. ; C. P. L. 494-5; 6th L. C. J. 115, 116, 38, 39. If there is no articulation of facts, the inscription cannot take place until tive days after issue joined. ;v» ■ 1 fel;-i:|| liii I'M fil 1. Where under the (Jlth Kule of Practice of the Superior Court requir- ing; option of trial by jury to be made by declaration, pleas or motion within four days after issue joined, issue had been joined on the twenty- fourth day of January, and notice of motion of option had been given to the opposite attorney on the twenty -eighth of January, and motion had been accordingly made on the seventeenth of February following, being the nearest day when such motion could be made — Held, that the parties moving had substantially complied with the requirements of the said Rule of Practice. Arcand v. The Montreal and New York Railway Company, (1 L. C. J. 38, S. C. R. 1854. 2. A motion for a jury trial cannot be granted until after the issues are ])orfected. Hart et at. v. The Northern Insurance Company, 18 L. C. J. 189. S. C. 1873. ' '*'} J. 3. Motion for a special jury made after the delays prescribed by the Rules of Practice will be rejected, mison v. I'he State Fire Insurance Company, 12 L. C. R. %, S. C. 1801. 4. The option of trial by jury made in the plaintiff's answer can avail him only as a notice to the opposite party ; and muet be followed by a special application to the court within four days after issue joined, or not later than the first day of the following term. Matthewn v. The Northern Insurance Company. 14 L. C. J. 138, S. C. 1870. !;'' 280 OP TRIAL BY JURY, ARTB. 860-866. m 11 ";.'}' 6. The service within four days after ishue joined on amended plead- ings, of a notice uf motion praying acte of tlie option of tlie maker to have a trial by jurv, and tli_ making of such motion subsequently, are a sufficient compliance with this article of the Code. Brown v. The Imperial Fire Insurance Company. 20 L. C. J. 179, (. H. 1875. Htil, The jury is compoBed and summoned in the manner hereinafter provided. C. S. L. C. c. 88, s. ")0, C. P. L. 498. S53. No trial by jury is fixed until the court or judge, upon the motion and suggest ion of the party claiming the same, has assigned the fact or facts to be enquired into by the jury, and has decided all issues raised respecting the quality of the parties. C. S. L. C. c. 88, ss. 2\), 31. Bight of Q. B. to Bottle facts. Citizens Ins. Co. v. Lajoie, 3 L. N. 108, Q. B. 1880. 353* Each party must furnish the judge with a state- ment of the facts which he considers ought to be submitted to the jury. Ibid. s. 31. 354. The ar Upon the day and at the hour fixed for striking the panel, the parties must attend for that purpose at the pro- thonotary's office. 69th and 71st Rule of P. 36S* Each party strikes alternately from the special list prepared by the prothonotary the name of one of the persons therein designated, to the number of twelve each, paraphing each name struck out, and the twenty-four names then re- maining form the panel from which the twelve jurors who are to serve in the case are taken. 8 Blackstone, 859 ; 27- 28 V. c. 41, s. 9, § 9. 360. In the case of articles 868 and 864, neither party can strike out the names of more than six persons speaking the French language nor more than six persons speaking the ,"!'?./ b If ^ J 286 OF THE SUMMONS OF JURORS, ARTS. 869-874. English language, or the names of more than six traders or non-traders, as the case may be. 27-28 V. c. 41, s. 9, § 10. 370. If either of the parties fails to attend for the pur- pose of striking the panel, the prothonotary may strike twelve names from the special list on his behalf, observing the rules prescribed in the preceding article. Lush's Prac- tice, 447 ; 71st Rule of P. 371. [If the party who has demanded a trial by jury fails to proceed upon his demand, the opposite party may either adopt the necessary proceedings for summoning a jury or may obtain leave from the court or a judge to inscribe the case for proof in the manner indicated in the chapter on proof.] 1. An action for damages arising out of a malicious prosecutic"" is not of a mercantile nature, and the parties will not be entitled to a jury com- posed exclusively of merchants. Fogarty v. Morrow et al., 6 L. C. J, 222, S. C. 1860. § 4. Of the summons of jurors. 373. As soon as the panel is formed in the manner prescribed in the preceding section, the prothonotary deliv- ers to the party who applies for it a writ of Venire Facias, in the name of the sovereign, signed by such prothonotary and sealed with the seal of the court, ordering the sheriff to summon the twenty-four persons whose names compose the panel ; and a copy of such panel is annexed to the writ. Lush's Practice, 173 ; 3 Blackstone, 858. 373> The jurors must be summoned at least four days before the time fixed for the trial. C. S. L. C. c, 84, s. 44 ; 27-28 V. c. 41, 8. 9, § 12. 374* The sheriff is not bound to leave a copy of the writ of Venire Facias with each person, but merely a notice under his signature, summoning him in virtue of such writ, to appear upon the day and at the hour fixed for the trial. FORMATION OP JURY AND CHALLENGES, ARTS. 374-877. 237 This notice must give the names of the parties to the case, the names, occupation and residence of the person summoned as a juror, the day, place and hour fixed for the trial, the summons to appear as a juror, the date of the writ of Venire Facias, the date of the notice, and the sig- nature of the officer to whom the writ is addressed. 875. A return of service of such writ must be made in the same manner as that of ordinary summonses. § 5. Of the formation of the jury and of challenges. 376- On the day fixed for the trial, the persons sum- moned as jurors must appear at the appointed hour, at the place where the court is held, under a penalty not exceed- ing 'twenty-five dollars,] which may be immediately imposed by the court, and is levied by the sheriff on the goods and chattels of the person so fined ; and in default of sufficient goods and chattels, such person mav be impri- soned for a period not exceeding fifteen days. The court may, however, for good cause shewn, reduce or entirely remit such penalty or imprisonment. 27-28 V. c. 41, s. 21, § 2. 33 Vict. c. 13 (Que.). " 8. When more than one member of any commercial firm have been summoned to attend as jurors, before any court, or upon any trial in civil or criminal cases, the court or judge presiding at such trial may, in his discretion, exempt all the members except one of such firm, notwithstand- ing that 710 notice may have been given of the intention to claim exemp- tion." Compare 46 Vic. c. 16, s. 45, P. 2, (Que.). 377* As soon as the case is called on the appointed day, the writ of Venire Facias is returned, and after the jurors summoned have been called and a sufficient number to form a jury are in attendance, either party may challenge the array, either on the ground that the officer to whom the Venire Facias was addressed is interested or concerned in the suit, or on the ground of such causes of nullity as may I* t i m n \i' !''S''^W.i ^' ■ -'ill! - . *:•'•■»>!! Alt; 1 ii 238 FORMATION OF JUHY AND CHALLENGES, AttTS. 877-884. be found in the summoning of the jurors or the making up of the lists or panel. C. S. L. C. c. 84, s. 45 ; Arch. Prac. 204—7 ; Kennedy Jury Trials, 101 ; 8 Blackstone, 869 ; C. P. L. 497—500—501. 87M. This challenge must be in writing, stating the causes of nullity relied upon, and must conclude by demand- ing that the panel be quashed. Archbold, 207. 379. The presiding judge decides the challenge, and may, if necessary, order the facts upon which it is based to be substantiated ou oath. Ibid. 208. 8SO. If the challenge is pronounced to be valid, the party who applied for a trial by jury must obtain the issuing of another Venire Facias. 9H1. If there is no challenge to the array, of if such challenge is overruled, the prothonotary, in order to form the jury, proceeds to the calling and swearing of twelve of the persons summoned, following the order in which they appear on the panel, unlers the judge orders otherwise, saving the cases mentiontd in article 398. C. S. L. C. c. 84, s. 48. SiH2» Either of the parties may challenge for cause, any person called to form part of the jury, before such person is sworn. 3 Blackstone, 359; C. P. L. 500. 3^3. The causes of challenge to the polls are either prin- cipal or to the favour. Archbold, 205 ; 3 Blackstone, 361 et seq.; C. P. L. 502. 3^4. The causes of principal challenge are: 1. Want of qualification of the person summoned ; C. S. L. C. c. 84, s. 22 ; Kennedy, 95 ; Archbold, 202. 2. Eelation or affinity with one of the parties to the de- gree of cousin-german inclusively; Archbold, 205-6. 3. Interest in the suit ; /&i£2. 206. : . FORMATION OF JURY AND CHALLENOES, ARTS. 884-889. 289 4. That he has examined into the matter in dispute as an arbitrator named by one of the parties ; Ibid. 5. That one of the parties has wrought upon the juror and given him money or other things, in order to obtain a ver- dict in his favour ; Ibid. 6. That the juror is infamous, or attainted of felony or convicted of perjury. Archbold and Kennedy, loc. cit. 3H!%» Jurors may be challenged for causes of lesser im- portance, which indicate a probability or give rise to a sus- picion that they are biased in favour of or against one of the parties, and such challenges are to the favour. Arch- bold, 207 ; Kennedy, 98. 3H6. Principal challenges are tried by the court ; chal- lenges to the favour are tried in the manner hereinafter explained. Archbold, 207-8. J I, 1 'f 'I Or 3M7* If two jurors or more have already been sworn, they try all challenges to the favour ; if two have not been sworn, the Court appoints two disinterested persons, who are sworn to try the challenge impartially, and who, together with the first juror sworn, if one has been sworn, decide upon it and upon any other challenges, until two jurors have been sworn. Archbold, 208 ; 3 Blacksto^e, 363. 3S^i* The juror himself may be examined on oath as to the matter of the challenge, provided it does not tend to his dishonoTir or credit. Archbold, 208 ; 3 Blackstone, 364 ; C. P: L. 509. 3SO. A challenge founded upon a judicial condemna- tion must be accompanied with an authentic certificate of such condemnation. 240 OF PROOEEDINOS BEFORE A JURY, ARTS. 890-894. 800* In caseB of a mercantile nature, the names of the merchants or traders summoned as jurors must be called first, and if they are not in sufficient number, the jury is completed from among the other persons summoned. 27- 28 V. c. 41, 8. 9, §11. 891. If several of the jurors summoned are challenged or fail to attend, so that the number of twelve duly qualified jurors cannot be completed, the court or sitting judge may, upon consent of the parties, but not otherwise, order the sheriff or the officer acting in his stead, to make up the num- ber 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 law- fully challenged, the trial cannot then proceed. C. S. L. C. c. 84, s. 46 ; Archbold, 190-1 ; 3 Blackstone, 365 ; C. P. L. 513; 27-28 V. c. 41, s. 9, §18. 39d» When a juror called is not challenged, or the chal- lenge is overruled, he must be sworn to try the matter at issue, and to give his verdict in a just and impartial man- ner, according to the evidence. C. P. L. 514. § 6. Of the proceedinpa before a jury. 303* Two days at least before that fixed for the trial by jury each of the parties must, under a sealed cover, deliver to the prothonotary, for the use of the judge who is to pre- side at the trial, a factum or case, containing a statement of the facts of the case and the authorities which he cites in support of his pretensions. 72nd Rule of P. ; 1 Archbold, 190. 394* After the return of the Venire Facias, on the day fixed for the trial, if neither party appears, the jurors are OF PROOBBDIMOS BEFORE A JURY, ARTS. 894*898. 241 discharged ; if the plaintiff appears and the defendant makes default, such default is recorded, and the plaintiff may proceed ex parte. If the plaintiff alone fails to appear, his default is record- ed and judgment of nonsuit is entered against him, with costs to the defendant. 78rd Bule of P. ; 1 Arehbold, 189, 190. Upon (;rantinf< an application to postpone a trial by jury, whore abaenoe of ^ood fuith is apparent — Held, that costs would be given against the party acting in bad faith, although the motion to postpone came from the other side. The Quebec Bank v. Roland et al, 15 L. G. U. 28, 8. C. 1868. StOJS. The plaintiff may also, at any time before verdict, withdraw from court or abandon his suit, and a like judg- ment of nonsuit, with costs, is rendered against him by the judge. 74th Rule of P. ; 1 Arehbold, 197, 211, 212. :iO0. No paper can be read to the jury without leave from the judge ; and if it be not authentic it must first be proved. :i1l7« The witnesses give their evidence orally, in pre- sence of the jury, and the judge is bound to make, or cause to be made under his supervision, full notes of the testimony thus adduced, of all oral admissions, and of all exceptions taken or objections made orally in court. These notes are read out by the judge or by the prothonotary, at the oral request of any party in the suit, during the trial or imme- diately after it, in order to correct and remedy any er»'ors or omissions that may be found there. C. S. L. C. c. 83, ss. 31-97. 30H. A fair copy of such notes is made out by the pro- thonotary, and, after being certified by the judge, is filed of record, and in case of appeal is held to be the true record of the evidence adduced and of all other proceedings men- tioned therein, and stands in lieu of any bill of exceptions by either of the parties against the evidence adduced, or the trial, which bills can no longer be filed. Ibid. s. 35. 16 F. c. c. p. ■ m m FPIt^' ii'^/i'' to ppy a Hteno- grapher, require that the evidence in the oaao Hhall bo taken by meant of stenography. In every such case the HtenoKrapher shall be named by the prothonotary, uuIosh the parties mutually agree upon one, and the said stenographer shall be sworn, before the Court or Judge, or the prothonotary, or the Clerk of the Circuit Couil, and he shall, at the conclusion of each testimony, read over the same to the witness, and such testimony shall, when afterwards transcribed in ordinary writing, form the record of the evidence in the cause : and in the case of trials by jury, the requirements of Articles 807 and 8{)H may be fulfilled through the intervention of the stenographer. In cases inscribed for proof and hearing at the same time, such evi- dence taken by means of stenography shall be a sufficient fulfilment of the last part of Article 263 and 264 ; and the sufficiency of the deposit required to pay a stenographer shall be determined by the court or judge, or by the prothonotary. 11. In any case in the Superior or the Circuit Court, the parties may, by consent, employ the services of a stenographer, and cause him to be sworn, and the evidence to be taken in the manner mentioned in the next preceding section. 12. The expense of employing a stenographer shall form part of the taxed costs of the case." See 46 Vict. c. 26, under Art. 1, and 47 Vict. c. 8, under Art. 263 ante. 31MK When the witnesses cannot attend before the court, their evidence may be taken by means of a commission for the examination of witnesses, which must be obtained and executed in the manner prescribed in the section concerning such commissions, and must be returned before the jury ; but no such commission can issue for the examination of witnesses who are within the circuit in which the jury trial takes place, unless with the consent of both parties, which is entered in the record. Ibid. ss. 105-6-7. 400. When the facts to be proved before the jury have been assigned by the judge, the proof is limited to the facts thus submitted. Ibid. s. 81. PROVINOSB OF JUDOK AND JURY, ARTS. 401 '406. 248 401. When, upon the written consent of the parties, the assignment of facts by the judge has been dispensed with, proof may be gone into upon all the facts of the case. ibii. 8. 82. 409. Either party may examine the other by interro- gatories upon articulated facts, the answers to whioh are taken either orally, in the presence of the jury, or in writing in the prothonotary's office. Ibid. s. 100. 403. [The plaintiff first opens his case, and adduces his evidence. The defendant next proceeds with his defence, having the option of addressing the jury either before or after adduc- tion of his evidence. The plaintiff is afterwards entitled to reply, but if ho ad- duces evidence in rebuttal, the defendant may comment upon such evidence before the reply of the plaintiff.] 1 Archbold, 191-195. 1. Tho defendants who examine no witnesses have not the right to address the jury in reply. Philipntall v. Duval, 3 R. L, 455, 8. C. R. 1871. 404. When each party has stated his case and adduced his evidence, the judge, if he deems it necessary, sufiis up the evidence to the jury. Ibid. 195 ; 3 filackstone, 875. 405* If either party objects to the judge's charge, the judge must, either immediately or so soon as he conveniently can, reduce to writing the portion of his charge which is objected to, mentioning the objection made, and what is thus written, after being signed by the judge, forms part of the record in the case. C. S. L. C. c. 83, s. 33. § 7. Of the provinces of judge and jury. 406* It is the province of the judge to declare whether there is any evidence and whether that ev*dence is legal, % «' ( 244 PROVINCES OP JUDGE AND JURY, ARTS. 406-410. and it is that of the jury to say whether the evidence ad- mitted is sufficient. 2 Powell, Practice of Law, — of Jury, Eule 1, p. 15. 1. When defendant pleaded want of notice of action (Art. 22), the point involved was held to be matter for the jury and not the judge to decide. McNamee v. Himes, 3 L. C. J. 109, S. C. 1859. 407- The jury finds the facts, but must be guided by the directions of the ju'^'^e as regards the law. Ibid. Kule 2. 1. An action was brought to recover the value of a quantity of wheat, etc., which had been shipped on the steamship St. Patrick, and which had btan lost by the sinking of the vessel in the harbour of Montreal. The defendants pleaded, among other things, that they were not liable if the goods were capable nf being covered by insurance, and that the loss which accrued was one which was capable of being covered by insurance. On motion for judgment non obstante veredicto, and for judgment on the verdict — Held, that the question whether the loss was one capable of being covered by insurance or not, was one of law and not of pure fact. Butters et al. v. Allan et al., 20 L. C. J. 137, S. C. R. 1875. 40S. If the jury, when charged with the case, cannot immediately agree upon a verdict, they must retire to a place set apart for them, in charge of some bailiff appointed by the court or judge, until they are ready to render their verdict. The court or judge may, however, in such case, and also during the trial, permit them to depart for the night, sub- ject to the obligation of attending again on the next follow- ing juridical day. 1 Archbold, 197. 409. If the jurors fail so to attend again, they are liable to the penalties attached to contempt of court, without prejudice to the recourse of the parties against them for damages. 410. The jury may, at any time, even after the summing up by the judge, but in his presence and with his permis- sion, in open court, examine again the witnesses already PROVINCES OF JUDGE AND JURY, ARTS. 410-415. 245 heard ; they may also ask the opinion of the judge upon any questions of law which present themselves. Kennedy, 49. 411. The agreement of nine of the twelve jurors is suf- ficient to return a verdict. 0. S. L. C. c. 83, s. 26, § 3. 413. If nine of the jurors cannot agree upon the verdict to be returned, the jury may, in the discretion of the court, be discharged, and another jury may be summoned. 413. The prothonotary, after ascertaining, that all the jurors are present, receives their verdict and enters the same in the registers of the Court, inserting their names, aud stating the number of those who concur in the verdict if it is not unanimous. Ibid. 414. When there is an assignment of facts the verdict must be special and articulated upon each fact submitted, and be explicitly affirmative or negative. Ibid. s. 31 ; C. P. L. 519, 521. 1. In an action for slander, in answer to the question, " Were the de- famatory words spoken by the defendant? " the jury returned as answer : " These words, or words to the same effect, were made use of by the defendant concerning the plaintiff.'' Held, that the verdict must be set aside as being vague and uncertain. Ferguson v. Gilmour, 4 L. G. B. 57, S. C. 1854. 2. The verdict being in terms wh''ih were ambiguous, the Court would interpret it in such a way as to give it effect, and would for that purpose look to the evidence, and ascertain the interpretation which one of the parties had given to the expressions which were the cause of the apparent ambiguity. La lianque de Quebec v. Maxham, 11 L. C. R. 97, S. C. 1860. 3. Where a special case is put to the jury on written questions, a general question such as " do you find for the plaintiff or defendant" is irregular and illegal. Grant v. The Aitna Ins. Co., 5 L. C. J. 285, Q. B. 1861. 415. When the parties have agreed to dispense with an assignment of facts, the verdict is general, either in favour of the plaintiff for a specific sum, or in favour of the defen- dant. Ibid. a. 32 ; C. P. L. ;'l-9, 522. nyx :IM: t i i ■M I-'' V WM i H '< r fr' 246 PROVINCES OF JUDGE AND JURY, ABTS. 416-420. 416. The jurors are not bound to render their verdict until the party demanding the trial by jury has paid the sum of one dollar for each of them, for each day that the trial has lasted. In default of payment by either party, the jury are dis- charged without rendering a verdict, with costs against the party who demanded a trial by jury ; such costs including both the costs incurred upon the trial and the allowance for the jurors, to whom the same is paid as soon as it is re- covered by the prothonotary [and if the trial by jury was demanded by the defendant, the plaintiff may proceed ac- cording to article 371] . C. S. L. C. c. 84, s. 47 ; 27-28 Vict. c. 41, s. 10, §§ 3, 4. 1. A juror is not entitled to remuneration when he has been summoned and discharfjed without serving on the jury. Sylvester v. Mameau, 2. R, L. 93, C. C. 1870. 417* The prothonotary, in the case of such default to pay, must immediately issue against the party liable for costs, a writ of execution, to be enforced by the sheriff, for the recovery of the allowance due the jurors. ^\H, The verdict must be given upon all the issues sub- mitted to the jury. 1 Archbold, 213 ; Buller, 178 a. 410. The verdict cannot in any manner pronounce upon the costs of suit. C. P. L. 623. 430. The presiding judge may order the amendment of any clerical errors that have occurred in any proceeding in the case before the jury or in the verdict. If the verdict cannot be rendered, by reason of the death, illness or withdrawal of a juror, the jury must be dis- charged, saving t! e right of the parties to have another jury summoned. The judge may, however, in the ease of illness or with- drawal of a juror, adjourn the case, in order to give the jury the opportunity to reunite and render their verdict. JUDGMENT AFTER VERDICT, ETC., ARTS. 421-423. 247 § 9. Of judgment after v ''ict and of remedies against a .t'dict. 4S1« The party in whose favour a verdict has heen ren- dered cannot move for judgment upon the same until the expiration of four days in term after the rendering thereof. 75th Rule of P. ; Lush's Practice, 486. Where the verdict is supported by evidence, although such evidence be in some respects contradicted by other testimony, the finding of the jury, based on their appreciation of the proof will not be disturbed. Wilson v. The Grand Trunk Railway Company, 5 L. N. 88, Q. B. 1881. 433> The motion for judgment on the verdict can only be opposed by means of a motion for a new trial, a motion in arrest of judgment, or a motion for judgment non ob- stante veredicto. 14-15 Vict. c. 89, s. 4 ; Lush's Practice, 485. Shaw V. Me^kleham, 3 L. C. J. 5. Vide 34 Vict., c. 4, s. 10 (Que.) under art. 494, post. 1. In an action of damages where motion was made either to set aside the verdict of the jury, dismissing the action, or grant a new trial — Held, that such a motion was regular, as having been sanctioned both by the Superior Court and the Court of Appeal. lIi(jgiiuon v. Lyman et at,, i L. C. J. 329, 8. C. 1860. 2. When those three motions have been made unsuccessfully by defendant, and plaintifi moved for judgment on the verdict, the findings of the jury nmst be taken as they stand, and the latter motion will be granted if such findings are in plaintiff's favour. Fletcher v. The Mutual Fire Insurance Company of Hanipslead, etc., (5 L. N. 340, Q. B. 1883, see 5 L.N. 54, for report of judgment of S. C. R. herein. 4S*<* Motions for ncio trial, or for judgment " non ob- stante veredicto," must be made on or before the fourth day in term after the rendering of the lerdict, and cannot be received after. IGth Rule of P. 35. Vict. c. 6 (Que.) " 13. Article 423 is hereby amended so as to read as follows : " Motions for new trial or for judgment non obstante veredicto must be made before the Superior Court, sitting in review, on or before the second day of 5( ', '* ' 'M ! I* j_j 248 OF MOTIONS FOR NEW TRIAL, ARTS. 423-426. W^ i flklM < USii the next term of saoh sittings, folloXving the tenth day after the rendering of the verdict, and cannot be received after." See 84 Vict. c. 4, s. 10 (Que.), under art. 494, post. 1. Held, on a motion for a new trial that such motion could not be received after the first four days of the term next following the day on which the verdict was rendered. Merritt v. Lynch, 3 L. 0. J. 276, & 9 L. C, R. 353, S. C. 1859. 424. Motions in arrest of judgment must be made within the same delay, unless the party has adopted either of the two other recourses mentioned in the preceding article, in which case it may be made within the two days in term next after the judgment upon the former motion. 77th Buleof P. All motions for new trial, for judgment non obstante veredicto, and in arrest of judgment must be made before three judges sitting in Review and not in the Superior Court. Insufficiency and illegality of evidence are not grounds for a motion in arrest of judgment. Fletcher v. Mutual Fire Imurance Company of Ham- stead, etc. 1 Q. B. R. 177, Q. B. 1881, 4 L. N. 115. 42li. None of the motions hereinbefore mentioned can be adjudicated upon unless the opposite party has been heard or duly notified. Of motions Jor new trial. 426. The court may grant a new trial in the following cases : ... 1. If the assignment of facts submitted to the jury does not comprise all the facts necessary to be proved ; 2. If the judge has admitted illegal evidence ; 3. If he has rejected legal evidence ; 4. If he has wrongly directed the jury upon a point of law ; 5. If the jury, not agreeing, have settled their verdict by easting lots, even though it be conformable to the t^^idence and to the direction of the judge ; 6. If the jurors have accepted refreshments from the successful party ; OP MOTIONS FOR NEW TRIAL, ART. 426. 249 7. If one of the jurors had erpreseed his intention of favouring the successful party ; 8. If he has committed any act of a nature to warrant a suspicion of partiality of the verdict ; 9. If anything has been done to bias the opinion of a juror in favour of the succepsful party ; 10. If the judge, while summing up the case in favour of one of the parties, was stopped by the jury declaring them- selves satisfied, and they afterwards render a verdict in favour of the other party ; 11. If the amount awarded be so small or so excessive that it is evident that the jurors must have been influenced by improper motives, or led into error ; 12. If the jurors, or auy of them, have received affidavits or evidence out of court ; 18. If the verdict is unsupported by proof, or contrary to the evidence adduced ; • 14. If the party was taken by surprise ; 15. If the case was irregularly called in the absence of either of the parties ; or if the record was not complete ; if an important witness was absent at the time of the trial without auy fault on the part of the party who had sum- moned him, and his evidence is still obtainable ; and in all cases where the merits of the case could not be discussed, and the party aggrieved and his attorneys are free from blame in that respect ; IG. In some particular cases, when new evidence haw been discovered since tlie trial ; 17. If the verdict is informal or defective ; 18. If the writ of Venire Facias is wrongly addressed or executed, or if a challenge of the array or of any juror has been erroneously maintained or overruled ; 19. If, for other causes, there is manifest injustice in the verdict. Lush's Practice, 631, and seq. 543, 5G0. 1 "1 250 OF MOTIONS FOR NEW TRIAL, ART. 426. 1. Objections which might have been taken, but were not taken during the progress of a jury trial, cannot be urged in support of a motion for a new trial. Cannon v. Huot et al., 1 Q. L. B. 139, S. C. B. 1875. 2. When the verdict and finding of the jury are, in the opinion of the court, contrary to the evidence adduced at the trial, the court will set aside the verdict, and grant a new trial. Matthewnon v. The Royal Imur- ance Company, 13 L. C. J. 6, S. C. 1868. 3. When contrary to law and evidence, the verdict will be set aside and a new trial granted. Senecal v. The Richelieu Company, 15 L. C. J., 1 Q. B. 1869. 4. Where defendant, in an action for damages before a jury, had exa- mined no witnesses, and had been refused permission to address the jury in reply — Held, that this did not give rise to a ground for a new trial. Phillipsthal v. Duval, 3 B. L. 455, S. C. B. 1871. 5. And where the plaintiff had purchased a number of barrels of oil not yet identified and separated from other barrels among which it was stored — Held, that he had an insurable interest, and that the verdict of the jury, based on a charge of the judge to the contrary, should be set aside and a new trial granted. Matthetoson v. The Royal Insurance Company, 16 L. C- J. 45, Q. B. 1872. 6. A new trial can only be granted where there is evident injustice. Borthwick v. Bryant etai., 5 B. L. 449, S. C. B. 1874. 7. Where evidence has been adduced on both sides, the couri will not grant a new trial on the ground that the verdict is pontrary to evidence ; but where no evidence has been offered to support the verdict, a new trial may be granted. Scholjleld v. Leblond, 8 Bev. de L6g. 359, K. B. ; Wuod V. McCallum, 3 Bev. de Leg. 360, K. B. 1820. 8. An action d' injures lies for a malicious arrest of a person, and though the court may, in any case, grant a new trial for excess of damages, they will not exercise the right unless the quantum awarded may be such as to indicate prepossession and partiality of the jury. Wood v. McCallum, 3 Bev. de Log. 360, K. B. 1820. 9. In an action for a malicious prosecution, if the verdict bo for the defendant, the court will not grant a new trial, even if the finding be against the evidence or against the direction of the judge. McCallum v. Wood, 1 Bev. de L6g. 503, K. B. 1821. 10. Plaintiff brought action before a jury for dam ages for verbal slander and the verdict went against him. Ho then made a motion for a new trial on the ground that the verdict of the jury was contrary to the evi- dence, and that the jury had been misled by the court. The motion was dismissed, and the plaintiff appealed, when it was held, reversing the judgment of the court below, tliat, when the verdict is contrary to the proof, it must be set aside. Beaudry v. Papin, 1 L. C. J. 114, Q. B. 1867. OF ABREST OF JUDGMENT, ETC., ARTS. 426-481. 251 11. Where the jury had found for theplainti£f in an action for damages, and the defendant had not moved for a new trial, the court could not take into consideration the question whether the damages awarded were excessive or not. Benning v. Grange, 14 L. C. J. 284, Q. B. 1870. See Montague v. The Gazette Printing Co., 5 L, N. 173, S. C. R. 1882. 4S7* The causes mentioned in paragraphs 2, 8, 4 and 10 in the preceding article can only be ascertained by means of the judge's notes filed in the record, and when the party has caused his objections to be entered therein. Lush's Practice, 540; Blackstone, 891 ; Beller, 825 c. ; C. S. L, C. c. 88, s. 84. 42S. The affidavit of a juror as to the reasons and mo- tives which influenced him cannot be received in any case. Lush's Practice, 586. 420* Nor can the affidavits of jurors or any other evi- dence be received for the purpose of establishing that the verdict rendered and recorded is not that which the jurors intended to give. Ibid. 430« A new trial must be granted when the judgment upon the verdict has been reversed by a higher court. 34. The plaintiff sued for the amount of an alleged insurance and ob- tained judgment on a verdict of a jury, and the judgment was confirmed in the Queen's Bench, but reversed in the Privy Council, with orders to scud the record back to the Queen's Bench. Ordered, on another petition to the Privy Council, that the Queen's Bench should send the cause back to the Superior Court with orders to issue a writ of venire de novo. The Montreal Assurance Company v. McGillitray, 11 L. C. R. i^25, P. C. 1851. 0/ arrest of jmhjment. 431* The defendant has a right to move in arrest of jiidgmout upon the verdict whenever it appears on the face of the record that, notwithstanding the verdict, the plain- tiff has no right to recover any sura, or that the verdict differs materially from the issues joined, or that the judg- ment would be reversed in appeal. Lush's Prac. 527 ; 8 Blackstone, 898. !?"• fi\ M .^•»:i I 1* ^ m] I ' 1 I f ^. 1 252 OF JUDGMENT NON OBSTANTE VEREDICTO, ARTS. 482-488. 482. Arrest of judgment has the effect of annulling the verdict of the jury, which can no longer be carried out. Of judgment non obstante veredicto. 433. [Whenever the verdict of a jury is upon matters of fact in accordance with the allegations of one of the par- ties, the court may, notwithstanding such verdict, render judgment in favour of the other party if the allegations of the former party are not sufficient in law to sustain his pre- tensions.] Lush's Prac. 529; G. S. L. 0. c. 83, s. 31. 1. Where the verdict is contrary to law and the evidence, it may be set aside by a judgment hoh obstante veredicto. Fergiuon v. Gilniour, 1 L. C. J. 131, 4 L, C. R. 57, S. C, Q. B. 1857. 2. The Court of Queen's Bench may set aside the verdict and dismiss the action altogether non obstante veredicto, if it be of opinion that accord- ing to law and the evidence, it should have been set aside, notwithstand- ing the fact that the appeal was from a judgment on a motion for a new triftl. Tihtone et al. v. Gibb et al., 4 L. C. J. 361, 10 L. C. R. 284, Q. B. 1860. 3. Though the defendant, after verdict awarding damages against him, did not move for a new trial, nor for judgment non obstante veredicto, the Court arrested the judgment and set aside the verdict, but would not non- suit. Gugy V. Brown, 16 L. C. J. 225, Q. B. 1872. it' '• >i ''■■■ ^kv'' OF OON'riNUAITOE OF SUITS, ART. 484. 258 HM I i/j CHAPTER SEVENTH. OF DIVERS OTHER INCIDENTAL PROCEEDINGS. SECTION I. OF CONTINUANCE OF SUITS. 484. When a case is ready for judgment, it cannot be retarded either b}' change of the civil status of the parties or by loss of the quality in which they were acting. 1 Pig. 339 ; C. P. C. 342. 1. In an action on a promiBsory note against co-partners, where one of the defendants died during the pendency of the suit — Held, that as the case was en tHat d'etre jugi'e, a reprise dUnstavce was unnecessary. Burry et al. V. Shepntone et al„ 2 L. C. J. 122, S. C. 1858. 2. And held, that after a final judgment in a cause, in which there are several intervening parties, as well as the plaintiff and defendant, a motion by parties representing themselves to bo the universal legatees of one of the intervening parties deceased, to be allowed to take up the inntance in place of the deceased, would bo rejected as opposed to the procedure and practice of the Court. Gillenpie et al. v. Spragge, G L. C. J. 29, S. C. 1861. 3. A party cannot ask that the instance be continued after judgment for the purpose of obtaining the execution in the name of a subrogated creditor. • Jones v. Crebassa, 9 R. L. 546, S. C. 1877. 4. A party who opposes a plea of general denial to a demand in con- tinuance of suit without complaining that thtre was no judgment on a previous demand of the same nature, uncontested, cannot avail himself of such irregularity in appeal. 6. When a party summons testamentary executors in continuance of suit and fyles the will appointing them execiitors, he is not bound to prove their acceptance of the charge if they have opposed the demand by a general denial without specially denying their acceptance. Price et al. v. Hale et al., 1 Q. N. R. 233, Q. B. 1881. Continuance in Review. Rice v. Libby, 4 L. N. 350, S. C. R. 1881. W . M 264 OF OONTINUANOB OF 8UIT8, ARTB. 486-488. I r : 43(l. The case is ready for judgment, when the trial is completed and the case is under advisement. 430* The attorney who is aware of the death or change of civil status of his party, or of the loss of the quality under which he was acting, is bound to notify the opposite party ; and all proceedings had up to the day when such notice is given are valid. Ord. 1667, tit. 26, art. 8 ; 1 Pig. 344-5. 1. On a rule of the defendants for improbation— /f«W, that, one of the defendants having died diiring the pendency of the suit, the mandate of his attorney ud litem had ceased. Mackay et al. v. Gemini et al., 6 L. C. J. 831, 8. C, 1801. 4JI7* In cases which are not ready for judgment, all proceedings had subsequently to notice given of the death or change of status of one of the parties, or of the loss of the quality in which he was acting, are null ; and the suit is suspended until its continuance by those interested, or until the latter have been called in to continue it. 1 Pig. 889 et seq. ; C. P. C. 344-6. 1. Tlie death of one of the parties pending an inquiry by ex^ierts stays all proceedings on the oxi)ertiso until the suit is continued. TaclU v. Levasm'ur, 3 Kev. de L6g. 358, K. B. 1810. 2. An action ex delictu against several persons jointly and severally, is not suspended as to the survivors by the suggestion of the death of one or more of the defendants. Such action might have been brought against any one or more of the persons jointly and severally liable. Allan et al. v. McLagati, 1 Legal News, 1, Q. B. 1877. 43H. A suit may be continued : 1. By the heirs or representatives of a deceased party; 2. By a minor who has attained full age ; 3. By the husband who has married a spinster or a widow, party in the suit ; 4. By a wife who has obtained separation of property from her husband, when the suit aflfects her private pro- perty ; OF OONTINUANOB OF SUITS, ARTS. 488-489. 265 5. By the person who replaces the party who has lost the quality in which he was acting. 1 Pig. 840. 1. Where a party in a case beoomoa insolvent, all the proceedings will be BUflpended on motion to that offeot until the case has been taken up by the aHsi^nee to the inaolvent'n estate. Burland v. Larocque, 12 L. C. J. 2»2, Q. B. 18tt7. 2. Where the plaintiffs having been incorporated during the pendency of the suit petitioned to be allowed to take up the imtance as such corpo- ration — Held, that as by their act of incorporation all the property, rights and aotionu belonging to them as a joint stock company should be trans- ferred to the Richelieu Company, as they were styled after incorporation, they were entitled to the prayer of their |M>tition. Faribault v. >S'(. Loui$ et III. id The Richelieu Company, 3 L. C. J. 51, H. C. 1858. 3. An insolvent defendant cannot stay proceedings to allow the assignee to take up the instance. Wilton et al, v. lirunet, 21 L. G. J. 209, 8, C. B. 1876. 4. An assignee under the Act of 1875 cannot be compelled to take up tne instance in a suit pending at the time of the insolvency against the insolvents. lHe»»i» dit Itelair, v. Lafoie, 25 L. C. J. 213, 8. C. 1878 ; 9 R. L. f)92. 489. The continuance may be effected upon petition, filed in the prothonotary's otfico, after being served upon the opposite party. 1 Pig. 815. This petition may bo contested in the same manner as any suit. 1. A person cannot bo hold to appear in a case and to take up the instance in place of a defendant deceased, by a rule ni»i, but must be sum- moned by petition and rule in the ordinary form. Lafand et al. v. Chag- fiott d- La Chambre d' Agriculture iL' Wood, 7 L. C. J. 112, C. €. 18(53. 2. A demand en reprise d'instance must be made by petition or motion, and not by action against the other party in the cause. CSte v. Masse et Hi, 16 L. C. R. 138, Q. B. 1865. 3. Continuance of suit may be effected upon motion as well as upon petition, liatuiue d'Hochelaija v. Masson, 7 L. N. 359, M. L. R., 1 B. C. 62, 8. C. 1884. 4. Where tho petitioner prayed to be allowed to appear and take up the instance in place of a party deceased — Held, that in the first stage he could only be allowed to appear and file his petition. Gillespie et al. v. Spragg (£ Mann et al., 6 L. C. J. 117, 8. O. 1861. T-Akif-i. •^l«■ im:';■T^r ■'^•• '! tiki W> r '1 266 OF THE DE0I8ORY OATn, ARTS. 440-448. 440* If the continuance is not contested within the de- lays prescribed, it is hold to be admitted, and in such case, as alHO when it is declared by the court to be well founded, the opposite party may continue on from the last proceed- ings originally taken. Ibid. 848. 441. If the persons interested do not continue the suit, the party remaining in it may compel them to do so by a demand in the usual form which is joined to the original suit. 1 Pig. 847. 443. In all cases, whether the continuance is voluntary or ordered by the court, it is effected by following up the last valid proceedings originally had in the suit. Ibid. 848. 1. Thoro must bo judgment on a rcprine d'hutance before procoodlnj,' with the princiiml doiuand, iinleuu there ia a conaent by the defendunt en repriHf d'iMtance that the continuance take place. KIUh v. llaineau, 5 R. L. 549, H. C. 1874. SECTION II. OF THE DECI80RY OATH AND THE OATH TUT BY THE OOUUT. § 1. Of the decisorif oath. 443. A party whose case is not proved may refer its de- cision to the oath of the opposite party, either upon the whole or upon a distinct portion of the matter in dispute. 1 Pig. 256. 1. Where the defendant after demand of plea mo\ jd to dismiss the action for want of particulars, and the plaintiff immediately afterwards moved to defer liis claim to the decisory oath of the defendant — Held re- versing the judgment of the court below, that plaintiff's motion shoulu bo granted. Lenfest'j v. Metivier, 10 L. C. R. 1«9, Q. B. 1860. 2. The Court of Queen's Bench has the same right bo submit the de- cisory oath to one of the parties in the case as a court of original jurisdic- tion. Ferrier v. DiUv., i'^ L. '^. J. 202, S. C. 1868, post art. 1177. OF THE DKOIBORY OATH, ARTS. 443*447. 257 8. Tho (looisory oath cannot be withdrawn after tlu; party to whom it haH Iwun dufurrc' looeptH the rofuronoo and duoUrea tlui^ he in ready to answer. O'Fan.j v. O'Neil, 17 L. 0. R. 80. 4. After (Inal hearin(( the deoiHory oath cimnot be allowed. a mu, Jl llev. do Lijj, 850, K. B. 1817. Ihtrnt V. 4I4* Tho decisory oath cannot be offered hy an attorney, without a special power from the party ho representH. Tho offer must he in writing, and the party ohtains, of course, a rule ordtrinf^ the opposite party to appear before the jud^'o t > at)^'.ver the questions which will be put to him. Potiiier Old. <>U. 1. If any autli .ity to defer the diioisory oatli in filed by tho attorney, and JM ' ot iinpoaclio'^ ;'.: ;. 'mm ■VWM \Km FTT; IV , ( 'n m vt "I »■ « 111 262 OF PEREMPTION OF SUITS, ART. 464. 2. On a motion to discharge an oppositi^, on the ground that the op. poeant had failed to proceed within three j^ars, the motion was granted. Blackburn v. Walker <£■ Walker, 3 L. C. J. 195, 8. C. 1859. 3. Peremption will not be granted of an opposition to a ratification of title. Robertson exp. v. Pollock et al., 5 L. C. J. 160, and 11 L. C. R. 285, S. C. 1861. 4. A petition for co«. . . 11. Peremption will be granted in cases not contested, and in which the defe dant only appeared, if the plaintiff allows the proceedings to lie over for three years. McBean v. Cullin, 7 L. C. J. 117, 8. C. 1851. 12. A petition claiming peremption ought to be accompanied by a certificate of the clerk of the court, showing the date of the last pro- ceeding. Lc8 Dames Religieuaet Ursulinet v. Botterell, 1 L. C. R. 89, Q. B. 1851. n:>J ■■:ni^^:i, lojn i-.;!!^*'!* V !>E 4SiH. Peremption is covered by any useful proceeding taken after the lapse of three years and before the service OF PEREMPTION OF SUITS, ART. 458. 265 of the motion to have it declared ; but it cannot be pre- vented or affected by any proceeding taken subsequent to the service of such motion. C. P. C. 399. 1. On appeal from a judgment granting peremption — Held, that an interlocutory judgment discharging a dJ liluW awn^ends so long as it is in foi'co the proceedings in an action en ijarantie, and that there was error in the judgment declaring such action perimtv on motion of one of the defendants en (jarantie. ArchamhauU v. limby, 9 L. C, R. 219, Q. B. 1859. 2. A proceeding in a cause made by the plaintiff's attorney after service on him of a rule nisi for i>eremption, and before the return of the rule, will not prevent the peremption, being declared and the action dismissed. Farnnm v. Joyel, 10 L. C. R. 20, 1859. 3. No interruption of peremption ran be had after service of notice of motion. //>., and 4 L . C. J. 128, S. C. 1859 ; Divlet v. Jiobitail'-; 9 Q. L. li. 310, S. C. 1883. i. On motion for peremption of the inntance where the plaintiff had, between the notice and the presentation of the motion, tiled a paper in the cause — Hi'ld, to be a rule in this province that the notice was not equivalent to the demand, and that any useful proceedi?ig taken between the two would be sufHoient to interrupt the i^remption. Beaudry v. I'linquet, 3 L. C. J. 237, S. C. ; McDonald et al. v. Hoy, 3 L. C. J. 302, S. C. 1859. 5. The plaintiff urged that the peremption had been interrupted by the fact that the attorneys of record had abandoned the profession and become merchants — Held, that the rule was peremptory, and that the fact urged did not interrupt i)eremption. The Nitv City Gas Company of Montreal v. McDonnell, 3 L. C. J. 283, 8. C. ISTO. 6. Where a motion was made for peremption on the part of the defen- dant, and the plaintiff answered that one of the atto*'neys ad litem had, during the three years, ceased to practise as attorney io the knowledge of the defendant — Held, that the plaintiff was sufficiently represented by one of his attorneys. Tasxif v. Laberge, 4 R. L. 699, S. C. 1871. 7. The death of the plaintiff in the case interrupts peremption. et al. V. McNiven, 4 L. C. J. 148, 8. C. 1860. Tate 8. Where one of the defendants died during the pendency of the suit the peremption did not run during the three months and forty days allowed to the heirs to deliberate. McKay et al. v Qerrard, 5 L. C. J. 331, S. C. 1861. 266 OF PEREMPTION OP SUITS, ART. 468. H) ml h I. I '^ii. t \ 9. The defendants served a motion on the plaintiff for peremption, and the phiiutiff pleaded that, having entered into soiomn and perpetual vows a3 a reUfiieme, she was civilly dead before the peremption had accrued, and also that the pleading mentioned as the last proceeding in the case, instead of having been Aled on the 17th of May, 185'J, was filed during the month of April, 1862, as apiieared by affidavits produced by her, and before the day on which the motion for peremption was served she had taken useful proceedings as re<]uired by law — UeUl, supposing the plaintiff were civilly dead (a point which the court would not decide) by tr .ng the vows of a relijiieune before the peremption was acquirbd, that as the defendant had not been notified of the fact it could not take away the right of peremption Ve lieaujeu v. Ma»g^,jr., 7 L. C, J. 105, S. C. 18(13. 10. W'th regard to the filing of the pleading referred to, the date of which had been certified by the prothonotary, his certificate could only be attacked by improbation, and held, also, that peremption could not be affected by a proceeding taken between the service of the motion and its presentation to the court. Ibid. 11. The death of one of the plaintiffs interrupts the jieremption. Brewster et al. v. Odkh et (il., 9 L, C. J. 21, S. C. 1803. 12. And the death of one of the defendants. al., 9 L. C. J. 22, S. C. 18()3. Howard et al. v. Child* et 13. The service of a notice of motion to be made by the plaintiff is ii, valid interruption of the peremption in the cause under Art. 158. The Mayor, etc., of Montreal v. liausoii, 13 L. C. J. 234, C". C. 14. Service of a iiotice of motion not filed or presented to tl e court does not interrupt peremption, TerrHl v. llaldaiie et al., 15 L. C. J. 245, S. C. 1871. 15. The death of two of the defendants does not interrupt peremption. Ibid. 1*). But held, reversing the decision in the conrt below, that a requisi- tion by plaintiff for a process to examine defendant on J'uitu et articles, tiled the same day as service is made by the defendant of motion for peremption, is a useful proceeding, and will operate us an interruption of the peremption. Ibid., and 17 L. C. J. G'J, Q. B. 1872. 17. To call a case on the enqut'te role is not a useful proceeding, such as to interrupt peremption. Cook v. Miller, 3 R. L. 440, 8. C. 1871, and 4 R. L. 240, S. C. R. 1H72. ■ • ■ • • 18. Notice by plaintiff to defendant that he will proceed with his enquuto is a useful proceeding which covers peremption even when plaintiff does not prrceed with his enquSte on the day mentioned. Gintjras v. Gintjra», 6 Q. L. R. 70 Q. B. 1879. MISCELLANEOUS PROVISIONS, ARTS. 458-461. 267 19. Continuing a case at enquHe by oonsont is a usoful proceeding, and prevents prescription. Kellond v. Iteid, 6 L. N. 04, ti. C. 1U62. 451K Peremption does not extinguish the right of action, but only tlie suit or proceeding. C. P. C. 401. 400. The court, in declaring the peremption of the suit, may, according to oircumstances, condemn the plaintiff to pay all costs. „ i 1. Wherfl ixjreinption is granted, the action will be dismissed with costs. Monijenn et wx. v. Lorin, 1 L. C. J. 2(54, S. C. ; Chapmanw. Aylen, Ibid., Gore V. Oh/;;/, Ih., and 8 L C. R. 445. 18.57. 2. The costs on u demand for peremption are at the discretion of the court. DelUeunj v. Gauthier d- Parin, » L. C. J. 380, 8. C. 18C1. 3. And on suflicient cause, on aflidavit, the court will not grant costs. Ibid., 11 L. C. R. 4'.t4, S. C. 1861. 4. The action will be diBmissed, each paying his own costs. Fournier V. 'n>e Quebec Fire Inmrance Co, « L. C. R. 97, 8. C. 185(). 5. 8uch is the practice ir the district of Quebec. Drolet v. liobitailU; 9Q. L. R. 310; B. C. 1883. »i. No costs will bo awarded. Tuni,r v. TjimaK, 10 L. C R. 382, 8. C. 1800. 7. The action will always bo declared pJrinu'e with costs, unless under very special circumstances. .Sinclair v. McLean el «/., 22 L. C. J. 107, 8, C. 1877. ■ ■ ' '^' SECTION V. . . ■ • MISCELLANEOUS PIIOVISIONS. . . 401. When any writ or paper whatever requires to be served out of the district, the service may, in the absence of any provision to the contrary, be made either by a bailiff of the district in which the court is lield, or by a bailiff of the district in which such service is to be made ; but no more costs can be allowed in the former case than in the latter ; and this provision applies also to executions against mov- r !^(* IT-" t , >i ! m i ' I I '/,^<. ni ! I ,1 M '-jit VI 268 MISCKM.ANKOrS PROVISIONS, ARTS. 401-462. *• \ ; i ufi> I '"I able property nml to attachments before or after ju(lj](ment. C. S. L. C. c. 8a, s. 05, §n. 2, 8, 4. Vide 33 Vict. c. 17, s. 1 (Quo.), under Art. 48 ante. 1. A Imiliff of the district of Moiitroiil may exociito tv writ of exociitiou from tho court in iiii adjoining district. Ihthaut v. I.ncnmhf , Q. - 'StiO 2. In cases in the Circuit Court under 9<)0, copies of prelimint./y ex- ceptions must be served on tho plaintiff's attorney. Liuther v. I'attonn, 17 L. C. J. l!»i'., C. C 187a. 3. When an opposition is made by u third party to a seizure, and the opposition is contested bj tho other parties in the cause, the dei'ondant has a ri^ht to bo notified of all the proceeding's on the opposition, Kud no tinal judgment can be rendered maintaining such opposition unless tiie defendant has been called uixjii to declare whether he intends to contest it or not. Kelly and The Mayor et al. of Sorel v. La Uanque du Peuple, 1 K. L. 1«8, g. 13, ISO!). 4. Where an opposition is being contested, the contestation itself must be served on the defendant, but it is not necessary that it be accompanied by a writ of summons. Trnhan v. Oadboin and McCaffrey et al., 5 R. L. 690, S. C. 1874. 5. There must be a formal closing of enqudte before filing an inscription on the merits. Brewster v. Grand Trunk Railway Co., 2 Legal News, 323, 23 L. C. J. 271, S. C. 1879. R. of P. 45. 6. Notice given on the 11th, of a motion to bo presented on the 13th, is iuBufiicient, but will suffice if the motion has been continued to a later day, the object of the law being that the party should have reasonable notice. Bnnque d'llochelaya v. Ma»»on, M. L. R. 1 8. C. 02, 8. C. 1884. MI8CELLANE0UB PROVISIONS. ARTS. 462-464. 269 7. An intervening party who claims payment from the prothnntury of a Hum of money under a jurlf(ment in hiH favour, iH bound to ^ive notice to all the partiefl to the record of hitt application to the court for such moneys. GiUenpie et nl, v. Sprami et al. uinl Hutchimon et al. and Maitland I't al. and Gordon et al. « L. C. J. Ti'i, 8. C. It. 18fi5. 8. Where application was made to the Buperior Court for payment of moneys claimed by partieu in the case, notice must be given to the other parties interested of the judgment or order pronounced in the case. Mann et al. V Monk, 8 L. C. J. 55, Q. B. 18(52. 4tt3. In reckoning the delays in matters of pleadings or trial, the first day of September is deemed to be the next day after the ninth day of July ; and no party to a cause can be obliged to proceed between those two days, without a special order of the court oi* judge. Art. 24 ante, 34 Vict. c. 4, (Que.) 4. "Notwithstanding Article 4(),1, any days between the ninth of July, and the first of September shall bo reckoned in the delays of eight days fixed by Articles 45>7 and 500 of the said code." 1. When an action is returned during the long vacation, the Ist Sep- teujber is not to be deemed the return day under C. P. C. 4ti3, but is the first of the four days allowed by C. I*. C. 107 for filing preliminary pleas. limumtleil v. M,!tUot, 7 Q. L. R. 207, C. C. 1880. 4tt4* [Anfi two or more juihjes reaxdimi in the name dis- trict must Hit at the same time and at the name place, but in separate apartments, in term or in vacation ; and each of such judifcs halt the same jurisdiction for hcarinf) and de- terminiufj all cases and matters submitted to him, and has the same powers as if he were the only judijc sittiny at such place.] Ibid. c. 78, ». 24. -i - ;. %■.!.,. 40 Vict., c. 13, (Que.) 2. Article 404 is repealed, and the following substituted therefor : "464. Two or more judges of the Sui)erior Court discharging their duties in the same district, may, and shall, whenever the despatch of business requires it, sit at the same time and at the same place, in separate apartments, in term or in vacation ; and each of such judges has jurisdiction for heanng and determining all cases and matters sub- mitted to him, and has the same powers as if he were the only judge sitting in such place." 'i 1' fill nil) (!'!»{,' I If Ml-' in. 'f- 270 MTSOELLANEOUn PnOVI8ION8, ART. 466. 405* In the abaenco of tho judge from the chiof-placo of any district in vacation, his duties ma} be performed by the prothonotary, in cases of evident necessity, or where by delay a ri>jljt mi^ht otherwise bo lost or a wrong sustained. But no judgment or order can be made by the prothono- tary unless notice of tho application has been given to the opposite party, except in cases by default, and such order may be afterwards revised by the court at its next sitting, or by any judge present in the district, provided tho party requiring the revision files in the prothomtary's office, on or before the third following juridical day, an exception thereto, accompanied by the grounds upon which such revision is demanded. Tho judgment or order of the prothonotary cannot bo executed until the delay for tiling such exception has expired ; and after tho tiling of the exception, the execution of such judgment or order remains suspended until the decision of the judge. IhitL a. 25. 86 Vict. c. 10 (Que.) '• 7. Whonevor at loiist oiio jucl(orior Court shall have liig clomicilo in tho chef lieu of any diHtrict the prutlionotury of auch diHtrict shall not, in any caHo hereafter, exorcise any of the judicial functions mentioned in a.'t. 40^ {unli-sii auch judije be ill or absent from the dUtrict, 40 V. c. 13, 8. 6, Que.)" 1. On an exception to tl 3 form Aled on the ({round that the femalo plaintiff had been authorized ti exter enjuHtice by tho deputy prothonotary — Htld, that as the said authorization did not set forth that it was granted in the absence of the judge of the district, in accordance with art. 4f)5 of the Code of Procedure, it was ultra viren, and the exception was main- tained. DuhJy. Mitznrette, 5 U. L. 247, 8. C. ; Filion v. Lacombe, 5 R. L. 248, C. C. 1871. 2. A deputy prothonotary in the absence of a judge has no power to fix the amount of unliquidated damages and interest upon which to base tho issue of a writ of capias. ]rortlien v. Holt, 3 R. L. 702, 8. C. R. 1872. 3. The prothonotary of a district, the judge of which is bound by law to reside in another district, may grant a petition without setting forth the absence of the judge. Lytich v. Duncan <& Duncan v. Lynch, 15 L. C. J. 222, 8. C. R. 1871. MISOBLLANEOUB PROVISIONS, ARTS. 465-467. 271 4 A deputy prothonotory liM power to authorise a tutor to tako up the initnnce in and proHooutu an aotioii oi partujje already bc({un by the a uteur t)f the minor. Cutting v. Jordan, l» L. C. J. 189, Q. B. lH7ft. ff. The olork of the Circuit Court cannot exeroiHu the funotiona of the judKO of the diiitriot even in hiH abHoiicu, and wlien the partioH would neceHsarily HufTur by delay, and wlioro the clerk had granted tho petition of the plaintiff who domandud i)08HCH8ion of a horse he had attached by itiiiiii' rvvfiulicatioii, it wait hold, on mHcriptiun before the jud^o in term that the clerk's order should bo annulled. Larone v. Larone, 3 U. L. 83, S. C. 1871. 0. An order at tho foot of a petition si^fnod by a jud({e described in the petition as boin^ in the district will be presumed to have been K>ven in that district. A jud^e in his district has jurisdiction to order the issuing of a writ of prohibition, even though he be not at the Chef-lieu. Hoy v. |V(jH.'r et til., Q. L. R. 211. H. C. 1877. 400. Whenever the sheriff is interested or personally concerned in any suit or action, any writ which oujj;ht to be served by him, must be addressed to and served by the coroner of the district. Ibid. c. 83, s. 45 ; see art. 74 ante. 407* If the sheriff is also coroner, then the prothonotary, or his deputy, acts in the place and stead of the sheriff, as if the writ had been addressed to him personally. C. S. L. C. c. 78, 8. 22. 48 Vict. c. 20, (Que.) rj7. The following article is added to tho said code after artic 407. " 467rt. In cases of capia», attachment Ixjfore jud^jmont, attachment for rent, conservat'jry attachment and in all oases of ur^oncy, the writ may be issued outside oHice hours without having judicial stamps thereon, provided that tho amount of such stanipn bo deposited with the officer issuing the writ, who is bound to affix the stamps upon the fuit as soon aH possible. '1 f. 272 OF JUDGMKNT OS THE MERITS, ARTS. 468-469. CHAPTER EIGHTH. OF FINAL JUDGMENT. SECTION I. OF JUDGMENT ON THE MERITS. 4&H, Judgment in a suit which is under advisement can- not be stayed by reason of the death of the parties or of their attorneys. Ord. 1607, tit. 26, Art. 1. [If any judge or assistant judge before whom a case has been heard is appointed chief-justice or judge of the same court, or chief-justice or judge of another court, or has ob- tained leave of absence, he may render judgment as if no changes had taken place.] A motion to discharf^e the delibero should be made before the judge who heard the case. Vdlet v. Thifeault, 10 R. L. 108, S. C. 1879. 401K In all contested cases, and in those not provided for by articles 89, 90, 91, 92 and 96, judgment must be ren- dered in open court. Ihid., art. 5. The court may, during term, appoint days out of term for rendering judgment in cases taken under advisement. 32 Vict. c. 20, (Que.) 1. "Whenever any judge of the Superior Court, who has heard a cause in the said court, ia unable by reason of sickness, or other rea- son, 'Jo render judgment in the said cause in |)er8on, he may transmit thu draft of the judgment certified by himself to the prothonotary, who shall be thereupon bound to record the same, and to read it in open court on the next juridical day in term after he shall have received such draft ; and the judgment shall then have the same force and effect as if it had been pronounceu by the judge on the day on which it was ao read." OF JUDQMENT ON THE MERITS, ARTS. 469-472. 273 38 Vict. c. 3, (Que.) 1. "At any time, when a judge who has heard a cauBe in the Superior or in the Circuit Courts, is incapable, on account of illness, absence or other cause, of rendering judgment in person, he may transmit the draft of the judgment, certified by him, to the prothonotary or to the clerk, as the case may be, with instruction to enregister such jrdgment and to read it, or to give communication of it on demand to the parties or their attor- neys ad litem, on the day previously fixed for that purpose by the court which shall have taken the cause en dilib^S. The prothonotary or the clerk, on receiving the draft of judgment and the instructions accompanying it, is obliged to conform to such instruc- tions ; and the judgment so enregistered, shall have the same effect as if it had been rendered by the judge, during the sitting of the court. 2. The provisions of the preceding section shall take effect notwith- standing article 1080 of the Code of Civil Procedure, section 1 of the Act of this Province, 32 Vict., chap. 20, and any other provision of the law, and without prejudice to such article, section, or provision of law. 3. In the absence of the judge who should preside over the Superior or the Circuit Court, the prothonotary or clerk, as the case may be, may adjourn the court from day to day during the term. 1. The courts cannot adjourn to any day between the 9th of July and the 1st of September for the purpose of rendering judgment in cases heard and taken under advisement during term, and art. 469 gives the court the right to adjourn only to a day which is not prohibited by art. 1. The Richelieu Co. v. Aiiderson, 20 L. C. J. 219, Q. B. 1876. i' ; 'm tiin: 470. In cases inscribed at the same time for proof and hearing, judgment may be rendered during the days set apart in vacation for proof and hearing in such cases. C. S. L. C. c. 83, 8. 37. 32 Vict., c. 20, (Que.) 2. Article 470 is hereby amended by adding the words " and also during term and on any day out of term appointed by the court, for rendering judgment in cases under advisement." 471. Every judgment for damages must contain a liqui- dation thereof. Ord. 1667, tit. 26, art. 6 ; C. P. C. 128. 472* Every judgment must mention the cause of action, and must be susceptible of execution. 18 F. c. 0. p. :j ■■■,!* •■-> ^n r '•i« ^m') ' 274 OF JUDGMENT ON THE MERITS, ARTS. 472-474. In contested cases it must moreover contain a summary statement of the issues of law and of fact raised and decided, the reasons upon which the decision is founded, and the name of the judge by whom it was rendered. C. S. L. C. c. 83, SB. 39, 7.10. 1. A judgment on an action en riintegrande which does not describe the property affected by the judgment, will be reversed in appeal on account of vagueness. Renaud v. Gugy, 8 L. C. R. 470, Q. B. 1858. 2. An error in the date upon which a judgment is rendered is not a ground of nullity. Naud v. Smith, 10 L. C. J. 217, Q. B. 1866. 3. A judgment is not necessarily null because it is not conformable to all the provisions of art. 472 concerning the motivh. La Fabrique de Ste. Julie de S. v. Paquet, 1 R. L. 430, Q. B. 1869. 4. The judge who renders the final judgment may reverse all interlocu- tory decisions in the case. Archer v. Lortie, 3 Q. L. R. 159, S. C. R. 1877. 473« The judgment must be entered without delay in the register of the court, in conformity with the draft paraphed by the judge. 1. Art. 473 is not so imperative as to reirlor the judgment attacked an absolute nullity. Chevrier v. The Queen, 1 S. C. Rep. 1. 2. An inscription en faux cannot be made against a judgment of the S. G. or of any court even if the judgment have been altered in any manner since it was rendered, nor can any such inscription be made against a copy of such judgment. Healy et al. v. The Mayor, etc., of Montreal, 17 L. C. R. 409, 8. C. 1867. See l\o»s v. PaUyrave, 5 L. C. J. 141, Q. B. 1858. 4V4. In the case of diflference between the draft and the entry thereof in the register, the draft is to be followed ; and the court may, without any formality, order the rectification of the register. 1. The draft of a judgment as paraphed by a judge is the true record of such judgment, and cannot be contradicted by verbal evidence offered in support of a requite civile attacking the correctness of the entries therein, so paraphed by the judge. OP JUDGMENT ON THE MERITS, ARTS. 474-476. 275 A judgment so recorded cannot be set aside on a requite civile by an- other judge of the same court on the ground of error in such record. Carter v. Mohon <& Holmes, 21 L. C. J. 210, S. C. 1877 ; 23 L. C. J. 50, 9 B. L. 620, Q. B. 1878. 2. Where rent due and to accrue was demanded, and judgment was given for the part due, but was entered for the full amount demanded, and the prothonotary entered up the proper judgment on another page, semble that he was not authorized to do so by Art. 474. Hardy v. Scott, 1 Legal News, 278, Q. B. 1878. 3. The court will not interfere to change or modify in any way a final judgment which has been rendered. Huot v. PagJ, 9 L. C. R. 226, S. C. 1859. 4. Nor can a judgment be changed or modified in any way after the court has adjourned. Bertrand v. Beaudry, 9 L. C R. 260, C. C. 1859. 5. When the attorney of a party has asked distraction of costs, such distraction follows as a matter of course the judgment rendered in favour of his client for costs, although the draft of judgment given to the pro- thonotary do not mention it. In such a case the entry in the margin of the Register of Judgments, made subsequent to the enregistration of such judgment, of such distraction will not be considered as an alteration of the judgment. Morennj v. Fournier, 7 Q. L. R. 9, S. C. R. 1880. 6. A variance between a judgment on a rule and the rule itself is not a ground for setting it aside. Brooks v. Whitney, 4 L. C, J. 279, 10 L. C. R. Q. B. 1860. 7. An interlocutory judgment may be revised or reformed. Plenderleath V. McGillivray, 8. R. 470, K. B. 1831 ; Tale et al. v. Jaiies et al., <& i contra 1 L C. J. 151, 8. C. 1857. Quintal v. Roy et al., 14 L. C. J. 57, 8. C. 1868. See Casey v. Shaw, 3 L. N. 90, 8. C. 1880. E^ m i!!ii r : H-> [I'll .'^i . U\:i \'' ■}'•■'■ H \ ^m 479* Every jud}j;ment condemning a party to the restitu- tion of rents, issues and profits, must order the hquidation thereof; and this is done hy experts if the ease requires it ; and the party condemned is bound for that purpose to pro- duce all accounts and documents shewing the receipts, all leases of immoveables, and a statement of the cost of tilling, sowing and harvesting incurred by him. 47tt* Unless it is expressly ordered, it is not necessary to have the judgment served on the party condemned, i l;d;i I'll'. 276 OJ" JUDrMENT ON THE MERITS, ARTS. 476-477. except judgments in recognition of hypothecs, rendered against defendants having a known domicile in the Province. C. S. L. C. c. 49, 8. 16 ; c. 83, s. 114 ; Ord. 1667, tit. 27, art. 1 ; 26 Geo. III. c. 2, s. 29. 1. Signification of a judgment is not required where it has heen given eontradictoirement. Rogerson v. Begin, 3 Rev. de L6g, 391, K. B. 1819. 4TT. [Any party may, on giving notice to the opposite party, renounce either a part only or the whole of any judg- ment rendered in his favour, and have such renunciation recorded by the prothonotarj ; and in the latter case the cause is placed in the same state it was in before the judg- ment.] 1. Where the plaintiff had desisted from a judgment on a demurrer obtained in the absence of defendant's counsel from the court, and tlio case was inscribed for another hearing, the court was of opinion that, as judgment had once been rendered, chere was f^i end of the matter, and the inscription was discharged. Clark et al. v. Clark et ux., 2 L. C. J. 209, S. C. 1858. 2. Where there is a manifest error in a judgment and the plaintiff (in whose favour the error was), desisted, before appeal brought, from the benefit of such error, and served notice thereof on the defendant — Held, that the dAistement was good, and the appeal was dismissed with costs. Brawn et al. v. Woad, 8 L. C. J. 53, Q. B. 1863. 3. Where one desistc from a judgment rendered in the Superior Court, and which has been inscribed in revision, the Court of Review will dis- charge the d^liber/ and return the record to the Superior Court. Ward v. yewhall, 3 R. L. 415, S. C. R. 1871. 4. The attorney of one of the parties in a case, as such, may renounce the whole or part of the judgment given in his favour, but such renun- ciation to be valid must be signed by the party himself or by his attorney ad hoc. Prefontaine v. Brown et al., 1 Q. L. R. 60, S. C. R. 1875. 6. Where plaintiff desists after the inscription in Review, ho will be granted Acte thereof only on payment of costs in both courts. Robinson V. Bower, 2 L. N. 180, . . C. R. 1879. 6. A party may desist from an interlocutory judgment rendered in his favour, and such desistment signed by the party may be filed after a peti- tion to appeal from such judgment has been granted. In such a case the appeal will be dismissed with costs against the appellant from the filing of the desistment. Nadeau v. Pacaud, 9 R. L. 618, Q. B. 1876. OF COSTS, ARTS. 477-478. 277 7. When by a clerical error or otherwise judgment iB entered in favor of a party for more than he is entitled to have, such party should imme- diately desist from that part of the judgment in order to avoid condem- nation to costs. PrA)ost v. Bourdon, 1 Q. B. R. 20, Q. B. 1880. SECTION II. OP COSTS. 4*7^. The losing party must pay all costs, unless for special reasons the court thinks proper to reduce them or compensate them, or orders otherwise. Nevertheless, in actions of damages for personal wrongs, if the damages awarded do not exceed forty shillings, ster- ling, no greater sum can be allowed for costs than the amount of such damages. Ord. 1667, tit. 31, art. 1 ; 25 Geo. III., c. 2, s. 4, C. S. L. C. c. 82, s. 23 ; C. P. C. 130, 131. 1. The plaintiff's attorney cannot claim costs from the defendant for any proceeding before the issue of the writ and consequently no costs arise on the mere lodging of a fiat. White v. Foster, i 11. L. 565. 2. No costs can be asked for an attorney's letter sent before the com- mencement of the action, as it is a voluntary courtesy, and not a necesary procoeding. liou-en v. Lee, 3 Rev. de L6g. 391, K. B. 1812 ; Contra, Light- hall V. Jack»on, 3 L. N. 37, 8. C. 1879 ; Michaels v. Plimsoll, 27 L. C. J. *29, 6 L. N. 61, C. C. 1882 ; Lennox v. Angus, 6 L. N. 8, C. C. 1882 ; Heroux V. Clement, 10 R. L. 589, C. C. 1880; but see Germis v. Denis, 3 L. N. 37, €. C. 1880; and Quintet v. " ivel, 7 L. N. 383. C. C. 1884. 3. The defendant who tenders tl;o principal and interest claimed, after issue of a writ of summons, but before service, is still liable for the costs incurred. Bouchier v. Lemoine et al., i L. C. J. 300, S. C. 1860. 4. Where the parties have settled the action before return, the attorney for the plaintiff cannot recover his costs against the defendant who was led to believe proceedings were ended. Watkins et al. v. Denman, 4 P.. L. 383, C. C. 1872. 5. Where an action was settled as to the principal only and defendant afterwards neglected to pay the costs— i/t'/(i, that the action might be re- turned into court and proceeded ,vith for the costs only. Darche et al. v. Debuc it Debuc, 1 L. C. R. 238, S. J. 1851 ; Gagnon v. McLeish, 3 Rev. de Leg. 393, K. B. 1821. m i'i .:! 278 or C0BT8, ART. 478. 6. Where the parties had settled the case after the return of the action without the knowledge of the plaintiff's attorney — Held, that the latter was entitled to proceed to judgment for his costs. Charhhois v. Coulombe, 7 L. C. J. 300, S. C. 1863 ; Williams v. Montrait, 1 Legal News, 339, S. C. 1878. 7. But held, that where the parties have settled the suit between them- selves the attorney cannot continue it for costs although he have prayed distraction thereof in his declaration, Lat'aille v. Lqfaille, 14 L. C. J. 262, S. C. R. 1869; The Quebec Bank v. Paquet, 13 L. C. J. 122, S. C. R. 1869 ; Castongu^v. Perrin et al., 14 L. C. J. 304, S. C. 1870. 8. Where the plaintiff compromises with the defendant, the latter agreeing to pay costs, the plaintiff cannot enter his action for the costs, nor does the demand for distraction of costs in the conclusion of the plaintiff's declaration take away from him the right to compromise. HJbertv. La Fabrique St. Jean, 13 L. C. R. 66, Q. B. 1861. 9. When plaintiff's attorney has by the conclusions of his declaration demanded distraction of costs, and plaintiff's demand is substantially proved, a settlement between the parties without the attorney's consent by which a sum of money is paid by defendant to plaintiff and the latter abandons his action, does not deprive the attorney of his right to obtain judgment for costs against defendant. Laplante v. Laplante, 3 L. N. 330, B.C. 1864. 10. The parties before the case was returned into court came to a set- tlement which did not provide for the payment of the plaintiff's costs by the defendant, although the declaration prayed for distraction thereof. Held, that the plaintiff's attorney could not continue the case for hij costs. Carrier v. CotJ, 6 Q. L. R. 297, S. C. R. 1880. 11. Where after issue joined the plaintiff agreed to discontinue his action on payment of $300, each party paying his own costs, and the defendant, by permission of the court, pleaded the agreement, the plain- tiff was not allowed to answer that the settlement was fraudulent and intended to deprive his attorneys of their costs. Gosselin v. Gosselin ti- Mongeau, 5 L. N. 878, S. C. 1882. See Montrait v. Williams, 24 L. C, J. 144, 3 L. N. 3, 10 Q. B. 1879. 12. An attorney who has obtained distraction of costs in the court below cannot intervene in appeal to protect his rights against a transac- tion between the parties, unless he alleges fraud, or that his rigljts are jeopardized by the insolvency of his client. McCord v. McCord, 2 Q. B.R. 367, Q. B. 1882. 13. A demand for distraction of costs in the pleadings before the infe- rior court entitles the attorney to distraction thereof in Review without a OP cosTa, ART. 478. 279 renewal of the demand. Morency v. Foumier, 7 Q. L. B. 9, S. C. B. 1860. See art. 474, No. 5, anti. 14. The rendering of an account a Vayniable which has not been accepted, does not relieve the rendant compte from the obligation of fur- nishing an accounting en justice, but he will not be condemned to pay costs. Muldoon et al. v. Dunne et al., 7 L. N. 239, S- G. 1884. 15. A shipper had taken out a writ of attachment in revendication against the master of a vessel in consequence of his refusal to sign bills of lading for the goods shipped, and the defendant thereupon signed and delivered the bills of lading but refused to pay costs— /fe/d, that the plaintiff had a right to return the action and proceed to judgment for his costs. McCtilloch et al. v. Hatfield, 7 L. C. J. 229 and 13 L. C. B. 321, Q. B. 18G3. 16. Where certain costs under a writ of contrainte par corps had been overlooked — Held, that that did not free the debtor from the obligation of paying them when demanded. BeaucMne v. Pacaud, 13 L. C. J. 135, 0. C. 1869. 17. Where to an execution for debt, interest, and costs, an opposition is filed under which it is proved that the costs were paid before seizure, the defendant is entitled to co"' . on his opposition, liethelot v. Lalonde iC- Laloiule, 14 L. C. J. 28, C. C. 1869. 18. The plaintiff who sues in forma pauperis may recover costs. V. Menard, 3 Bev. de L«g. 391, K. B. 1819. GirovLx 19. An attorney prosecuting in his own action for costs due in a former cause cannot have judgment for costs. He is entitled to the amount of Ills disbursements, and no more. Valliers v. Duhamel, 3 Bev. de L6g. 392 K. B. 1819. 20. An attorney conducting his own case is entitled to the usual fees. Gugy V. Brown, 11 L. C. J. 141, 17 L. C. B. 33, 14 L. C. B. 213. 2 L. C. L. J. 222, P. C. 1866. 21. Where a case has been inscribed in review, and after hea.ing it has been discovered that it is not susceptible of revision, ind the court has therefore no jurisdiction, the party inscribing must pay costs. Becket v. RonalUe, 14 L. C. J. 54, 8. C. B. 1868. 22. In a case before the Circuit Court — Held, that where the case is with in the jurisdiction of the Commissioners' Court, the Circuit Court, upon confession of judgment by the defendant, would only render judg- ment for costs of the Commissioner's Court, particularly if there exist and be in operation such a court in the township wherein the defendant resides. Pacautl v. St. Hilaire, 15 L. C. B. 211, C. C. 1865. P lU i^-m m ■l ,1 >- .' 280 OF COSTS, ART. 478. 23. Wliere a defendant has pleaded in a case as if it were nn appeal- able one, he must bo hold to have waived any objection to the form of the action, and must pay contB as thouf;h it were appealable. La Corjxmition de la paroiuM' de St. Ainu' v. Cotnoir, 1 R. L. fifif), C. C. 1808. 24. On the contestation of the garnishee's declaration — Ili'ld, that, where the declaration does not fully disclopr the facts of the case, the f^arnishee must pay the costs of the contestation. Mac/arlaiie v. DeUde and Mackenzie, 3 L. C. J. 1(>3, 3. C. 18.")9. 25. In an action of damaj-es arising out of an accident where each side B to b»ame, each will pay his own costs. Ware v. Carsleij, 5 R. L. 238, S. C. 1873. 26. In an action for damages for t/j.OOO, the Court of A))peal reversed the judgment of the court beiow and granted plaintiff .il'i lOa. and costs. The prothonotary taxed the costs as of a first class action in the Superior Court. On motion by defendant to revise — Held, that the court would look at the language of the judgment of the Court of Api^jal to ascertain the class of costs awarded, and in this case the plaintiff was only entitled to costs as in an action for £'2 10s. in the Circuit Court. AVrr v. Oujy, 10 L. C. R. 478, S. C. 1860. 27. In an action on assumpsit, where an expertine was ordered — Held, that the costs of such ('.rperti.ie were in the discretion of the court, and that they would be divided, where the report has tho effect of materially reducing the plaintiff's demand. Gardner v. McDonald, 2 L. C. J. 208, S. C. 1858. 28. And where the plaintiff by her action claimed certain shares of stock, as belonging to her first husband, in the estate of the defendant, and the defendant pleaded that, at the time of the marriage of the plain- tiff with her first husband, the latter was already married to a jjerson in Kngland then still living, and a commission rogatoire issued to establish the facts of such marriage — Held, that the costs must bo paid by the plaintiff, inasmuch as these facts should have been admitted by her. Cathcart v. The Union Buildinii Society, 15 L. C. R. 467, S. C. 1864. 29. Wliere a report of collocation, made according to a registrar's cer- tificate, was contested, and the contestation was maintained — Held, that the party over-collocated would have to pay the costs of the contestation, unless he had filed a remittitur for the amount over-collocated. Marois v. Bernier d- Lariviere, 12 L. C. R. 174, S. C. 1861. 30. A party erroneously collocated must pay the costs of the contes- tation of such collocation, although on receiving it he immediately give notice of acquiescing in it, with a consent that judgment should be given as demanded in the contestation, but without costs. Adanis v. Hunter and Evans and McKenzie, 11 L. C .R. 172, S. C. 1861. OF C08T^, ART. 478. 281 81. Where a peraon has beoii collocated for a portion of the amount which he chvimed by his opposition, and the collocation is contested, the costs will bo the same as if the opposition itself had been contested. Doutre v. Gonelin (t Gahouriault, 7 L. C. J. 21)0, H. C. 1863. 82. And t'.ie class of costs in such cases must be governed, not by the amount of tl\o collocation, but by the amount o' ^ claim. Ihid. 38. And the opposant must be considered as plaintiff, and the contestant as defendant, in order to determine the costs due to each party, loul. 34. Whore two hypothecary creditors had been collocated in a report of distribution, in ac'Mrdanco with the rej^istrar'n certificate, and it was dis- covered that they had been paid their I'espective claims some time pre- viously — HeUl, on the conteatation by two interested parties of such collocations, where the creditors in (pu stiou admitted the payment of their claims, that the costs should be divided between the two parlies contest- ing in equal shares, but that the costs of one contestation should bo allowed. Coumoi/fr v. Pluiite ft al., 1 H. L. 3H, S. C. 1808. 35. .\ li_ ; othecary creditor who has been collocated for more than remains due to him, the balance having; been paid by a previous judfi- ment oi distribution, cannot be held for the costs of the contestation of such collocation, if he have filed with the prothonotary after contestation a declaration of the amount so remaining due. — Globengkij v. Daount, i& Moreau v. Globensky, 2 R. L. ti08, 1870. 36. A judgment setting aside the verdict of a jury, and condemning the respondent to pay the costs incurred in the court below, includes also the costs of the trial by jury, and not only the costs upon the motion for set- ting aside such verdict. Ouimet et al. v. Papin, 9 L. C. R. 268, Q. B. 1859. 87. On a contestation concerning the costs of a jury trial where the verdict of the jury had been set aside and a new trial granted in appeal, though refused in the court below — Held, that the party who succeeded in the first place, and in whose favour the verdict of the jury was render- ed, is not, according to the practice of the courts, liable for the costs of the trial. Ilmudnj v. Papin d- Papin, 3 L. C. J. 40, S. C. 1857. 88. Whore a defendant en (jarantie confesses judgment for a portion only of the principal demand, and contests the principal action as regards the balance, and judgment is rendered for the amount confessed, the defendant must nevertheless pay all the costs of both demands, including those of contestation, and that according to the conclusions of the princi- pal demand. Monyeiuiis v. PHon d- Pilon v. llraK,wur, 9 L. C. J. 88, S. C. 1864. 39. When a plaintiff recovers no more than is paid into court, and the sum so paid in was tendered before the action was instituted, the »i;: .'HI 117! , , '1 , ,11 . "Il 282 OF COSTS, ART. 478. action must be diamiBBed with oosts against the plaintiff. Woodrington V. Taylor, 3 Rev. de Ltg. 898. K. B. 1820. 40. Whore action lias been brought against a municipal corporation attacking one of its resolutions, the court cannot condemn the councillors who passed such resolution to pay the costs, unless they have been made parties to the case. The Attorney General v. The Corporation of Iberville, 6 R. L. 241, 8. C. 1874. 41. The costs on a petition to set aside a municipal by-law should bo taxed as in a tlrst-class non-appealable case in the Circuit Court. Bour- bonnais et ah v. The Corporation of the County of Soulangc*, 17 L. C. J. 69, C. C. 1872. 42. A revenue inspector suing in the Queen's name for penalties is not liable for costs. Hogue exp. v. Murray, 3 L. C. R. 287, 8. C. 1853. 43. In rendering judgment in a cause brought before the court on certiorari — Held, that costs would not be granted against a public officer who prosecutes in pursuance of his duty. DeBeaujeu exp,, 1 L. C. J. 15, S. C. 1856. 44. And on an application for certiorari from a conviction under the license law — Held, that no costs would bo given against the collector of inland revenue prosecuting in the execution of a public duty. Slack exp. V. Bellemare, 7 L. C. J. 6, S. Cr. 1862; 34 Vict. cap. 2, sec. 87 (Que.) 45. Where a writ of prohibition was maintained against the collector of inland revenue, it was without costs as being a public oflioer. Dultord v. Boivin, 14 L. C. J. 203, 8. C. 1866. 46. A curator to the estate of an absenteo, who defends and contests an action against such estate, is personally liable for the costs of the action. Whitney v. Brewster, 4 L. C. J. 298, 8. C. 1855. 47. And where action was brought by a curator to an absenteo, in his quality as such, and the action was dismissed as unfounded in law — Held, that the curator was personally liable for the costs. St, Jacques v. Parent, 2 R. L. 95, C. C. 1868. 48. Defendants who have pleaded separately to a joint and several action may be jointly and severally condemned in costs. Perkins v, Leclaire et al., 7 L. C. J. 78, C. C. 1865. 49. The endorser of a promissory note, though sued with the maker, is not liable to the costs incurred by the maker on an exception to the form, where he has pleaded separately, Boucher v. Latour et al,, 6 L. C. J. 269, Q. B. 1862. OF 008T8, ART. 478. 288 60. The parties to a auit are not jointly and severally bound to the pay- mont of the coHts of an e.rperti»e ordered at the inHtanco of one of the parties. lirown v. WalUice, B L. C. J. 00, Q. B. 1800 ; see No. 27 and Art. !)44 Rupra. 51. Where several porsonH have been condemned to pay different sums of money individually as damages, they are liable for the costs jointly and severally. Genier v. Woodman et al., 13 L. C. J., 201, 8. C. 1808. 62. The Court of Review cannot afford relief against the condemnation for costs in the court below. Macdonald et al. v. Molleur, 18 L. C. J. 180, 8. C. R. 1808. 63. A defendant who succeeds in review in obtaining a reversal of a considerable part of the judgment complained of, may, nevertheless, bo oondemnfd to pay the costs in review. Lynch v. liertrand, 18 L. C. J. 189, 8. C. R 1809. 64. The Court of Review will not g'vo costs to parties who seek to rectify a trifling error which had already been rectified by retraxit. Soulien- v. Heron, 1 Legal News, 87, 8. C. R. 1878. 55. The adjudication as to costs is entirely in the discretion of the court except in such cases as are specially provided for by statute. The Court of Queen's Bench in appeal will not as a general rule inter- fere with the award of costs by the Inferior Court, and where a judgment is confirmed as to the dhpoKitif, the appellant may bo condemned to pay costs on the appeal, ' hrough the judgment appealed from was based on erroneous grounds. MclMnnghan v.St.Ann'tsMu. lidg. So., 8 L. N. 01, 24 L. C. J. 102, Q. B. 1880. 60. Costs will be given against a party who succeeds in review and in the Superior Court on a technicality, if fraud is proved against him. Blouin V. Langelier & I.angelier, 3 Q. L. R. 272, 8. C. R. 1877. 57. In M\ action en homage, if the defendant deny the plaintiff's right of action, he must bo condemned to pay costs. Weymess et al. v. Cook, 2 L. C. R. 480, Q. B. 1852. 68. In an action en homage, where the defendant pleads that he had been always ready to have the boundaries established, and prays acte of bis willingness to do so, and prays also that plaintiff's action may be dis- missed with costs, the defendant will be condemned to pay the costs of the suit, although the costs of the homage be divided. Dan»ereau et al v. PrivJ, 1 L. O. J. 283, 8. C. 1857. 69. But where in another action of homage the defendant pleaded that he had no previous notice, and that he had always been ready to have the boundaries in question established, the plaintiff was held liable for the costs of the action. .Slack v. Short, 2 L. C. J. 81, Q. B. 1857. i 1 I •'I I -il i '(;::;('': • '1 mrm mm. ■m OP COSTS, ART. 478. 00. But whoro in ii later cuao the dofoiidant prayod for tho dismiHsal of the action, while olTorin^ to ro-establiHli tho old boundarioH, he waa con- demned in coHta. Thihault v. LavalUe, (S H. L. HO, S. C. 1874; Fatenaude V. Charnm, 17 L. C. J. 85. N'raR 'Mm 01. All costs of suit rendered necessary by tho pretonsiona of a party in a suit for boundary should bo char^fed a^'ainst him thoUf;h ho may not have refused a boundary, and nuiy not have pleaded to tho suit. The costs of e.rptrtiHf and bounding aro the only ones which should be divided. llui/ V. Uaiinun, 7 Q. L. K. '207, 8. C. 11. 1881. (\2. The costs in a suit for a boundary must bo borne by the party who lias refused an amicable delimitation, or who has rendered a settlement impossible by ur^jinj? pretentions which tho court rejects. It^lumjer v. Qiroux, y Q. L. U. 249, 8. C. 1883. G3. The costs of an action en ijanintie will be ({iven a^'ainst a plaintiff Buinf? before the expiry of the delay of payment, when tlie defendant calls in his nariint fonnel, Aylwin v. Judah and Judah v. Holland, 7 L, C. R. 128, 8. C. 1857. 64. Where the heirs to a succession wore allowed to renounce on the day fixed for theheariuf? of an action af^ainstthem — Held, that tho plain- tiff was entitled to costs up to tho time of renunciation. Mulhulland v. Hatpin et at. 5 R. L. 184 A 17 L. C. J. 318, 8. C. 1873. 65. Whero to an action for the balance of the prico of sale of an im- moveable, tho defendant pleaded fear of eviction, and the plaintiff waa ordered to Rive security before payment of such balance, costs wore given against the plaintiff. lierne»»e v. Madore, 7 L. C. J. 32, 8. C. 1862. 66. In a case where the defendant had pleaded his right to security against trouble, etc., and the plaintiff with his answer tiled discharges duly registered of the mortgages complained of, ho was granted full coutH of the contestation. 'Mreau v. Bouviar, 15 L. C. R. 76, 8. C. & 8. C. R. 1863. 67. And in a similar case where the defendant set up trouble by mort- gages registered against tho immovable, some of which were discharged after tho filing of the plea — Held, that the plaintiff would obtain judgment for the amount due, with costs up to the filing of tho plea, and that costs after the tiling of the plea would be granted to defendant. ColUtte v. Danncreau, 15 L. C. R. 83, 8. C. 1864. 68. Where the defendant was sued for an instalment of the purchase money of an immoveable, and pleaded right to security against mort- gages, etc. — Held, that the plaintiff should pay costs, liruiufau v. llobert, 6 L. C. J. 247, 8 C. 1862. OF COSTS, ART. 478. 285 69. Whore tho dofondnnt ploada trouble to an action for iniitalmentH of pnrchaHo money, and offers to pay on iteourity boin^ ({ivon, tho phiintiff Hhould bo condemned to pay tho coHta of contestation. McDonald tl al, v. Mollmr et al., 1 L. 0. L. J. 108, 8. C. U. 1805. 70. Where a (lerson sold thrnuRli an a^ent to one who had reason to be- lieve that thea^ent was acting for himself, and afterwards hrouKht action for the price of sale — Held, that he would net jud){mont only for tho debt, and the costs would go against him. Lahcllev. Patrh, 4 R. L. C!iO, C. G. 1873. 71, The Crown does not receive or pay costs. General, 8 Rev. do L6g, iJ71, K. B. 1885. Chandler V. The Attorney- 72. A surety cannot be called upon to pay costs of an action against the principal debtor where he has not been notified of the action. Nye v. Iiaamm, ft L. C. J. 117, C. C. 1861. 78. In an action of damages before a jury, whore a verdi< t had been returned for tho plaintiiT for an amount under forty shilling i sterling, and costs wore awarded generally — Held, conflrming judgmen' of court below, that the judgment for coBts would be interpreted as meaning a sum equal to that awarded by the jury for damages. Leduc v. Bu»«eau, 1. L. C. J. 101, Q. H. 1857. 74. And in another case — Held, that in an action of damages for per- sonal wrong, instimt^d in the Superior Court, where judgment is render- ed for £10 and costs, tho costs are taxed as in a judgment for that amount in the Circuit Court. Wilson v. Morri» <£• liavaria, 1 L. C. J. 260, S. C. 1857. 75. In an action of damages for libel where a verdict was rendered for $100, and a question as to costs arose — Held, that tho amount of dam- ages given, even where it exceeded forty shillings sterling, regulated the class of action as to costs, if the judgment of tho court ratifying the verdict have not otherwise fixed it. DemuUe» v. TacttJ, 8 L. C. J. 342, 8. C. 1804. 76. But where, as in the above case, the costs, under that rule, woro reducible to the tariff of a Circuit Court action — Held, that the disburse- ments necessary for a trial by jury would bo allowed to the plaintiff. Ibid. 77. And where the court awarded damages to the extent of $5 only — HeUl, that no greater amount than $5 for costs could be allowed. Warner et al. V. Rolf, 17 L. C. J. 292, 8. C R. 1873. 78. In an action for damages for personal wrongs, where judgment was rendered for one dollar and costs, the costs should be taxed at one dollar. Laurence v. Hubert, 12 R. L. 109, 8. C. 1882. 111' ,|f J* (i. ■ ht ' ' 1,1 tiiii i 'I m 286 OF COSTS, ARTS. 478-479. If '■' 79. In an action of ejectment, where no rent is due, the costs will be taxed according to the amount of the annual rent, Smith v. Noad, 1 L. , C. L. J. 67, S. C. R. <& 2 L. C. L. J. 59, Q. B. 1866. 80. Where two defendants join in an action of trespass, if one be ac- quitted, he is entitled to his costs against the plaintiff, notwithstanding that his co-defendant be found guilty. Henderson v. Thompson (£ Tlumipson, 3 Rev. de L6g. 392, K. B. 1817. 81. A party who has failed upon all the facts which were the subject of the enqudte, will be condemned to pay the costs of enqu€te though suc- ceding in obtaining judgment. Filiatreault v. Elie, M. L. R., 1 S. C. 66 ; 7 L. N. 378, S. C. R. 1884. 82. An opposant afin de distraire claiming real estate under an unregis- tered title (at the time of seizure) cannot get costs of opposition against plaintiff. Dorval v. Bourassa, 7 Q. L. R. 303, S. C. 1881. 479. Costs are taxed by the prothonotary upon produc- tion of a bill thereof, and according to the tariffs in force, and if the amount awarded by the judgment is such that it might have been recovered before an inferior court, the plaintiff is entitled to such costs only as would have been allowed in such inferior court, unless the court otherwise orders ; such taxation may, within six months, be submitted for the revision of a judge after the adverse party has re- ceived such notice as the judge may deem sufficient. Neither the application for revision, however, nor the delay allowed for such revision, can suspend the execution of the judgment ; saving the debtor's recourse in the event of the amount being levied or paid before such revision. Ord. 1667, tit. 31, art. 1 ; 25 Geo. III., c. 2, s. 4.; C. S. L. C. c. 82, 8. 23 ; C. P. C. 130-131. 1. An attorney ad litem to be entitled to receive his fees and disburse- ments from his own client need not produce a taxed bill of costs. Cherrier V. Titus, 1 L. C. R. 402, Q. B. 1851. 2. Tlie Court of Review has no jurisdiction to review the taxation of a bill of c^sts in revision. Belleish v. Lyman et al., 14 L. C. J. 137, 8. C. R. 1870. Ryan v. Deviiti, 21 L. C. J. 28, S. C. R. 1876. 3. Where the Sui^erior Court dismissed the plaintiff's action, but with- out costs — Held, that the Court would not interfere in a mere matter of costs. O'lIaUoran v. Stveet, 16 L. C. J., 318, S, C. R. 1872. OF COSTS, ARTS. 479-480. 287 4. Where a pai-ty in revision succeeds in obtaining a modification of the costs only, be will not have costs of revision, but each party will pay his own. The Intercolonial Coal Company v. Sliaw, 4 B. L. 639, S. C. E. 1873. 6. When a party moves to revise certain items of taxation in a bill of costs by the prothonotary, he thereby waives his right to object to the other items of taxation, and a second motion to revise these will be rejected although the party moving offers to pay the costs of his second motion. Kerr v. Gugy, 10 L. C. R. 478, S. V.. 1860. 6. The issue of an execution for the amount of a judgment and costs previous to the taxation of the costs is illegal. Audet v. Asselin <& Asadin, 15 L. C. R. 272, C. C. 1864. 7. The costs in a contested case must be taxed before execution can issue for them. Langevin v. Martin, 3 R. L. 447, S. C. 1871 ; Lewis v. McGinley, 6 Q. L. R. 61, S. C. R. 1880 ; Audet v. Asselin, 15 L. C. R. 272, S. C. 1864. 8. The prothonotary has power to tax an assignee's bill of costs in the absence of a judge. Lynch et al. v. Tyre & St. Anwar, 5 R. L. 417, S. C, 1874. 9. But a bill of costs taxed by the prothonotary may be revised by a judge. Ibid ; Fraser v. Darling, 1 Q. B. E. 217, Q. B. 1880. 10. Where a party has failed to stamp certain of his depositions, the prothonotary may refuse to draw, certify or tax such party's bill of costs while the depositions remain so unstamped. Emend v. Blais, 2 Q. L. R. 184, S. C. 1876. 11. Where judgment was rendered in the Superior Court for £50 in- terest and costs — Held, on motion to revise the taxation of the prothono- tary, that the plaintiff was entitled to costs only as of the first class in the Circuit Court, and not of the action in the Superior Court. ValUe v. Latmche, 10 L. C. R. 433, 8. C. 1860. 12. Where plaintiff obtained permission to amend his declaration on payment of the costs incurred by the amendment, the payment by him of such costs as taxed by the prothonotary suffices to enable him to file his amended declaration , and a demand to have the taxation revised by a judge dues not suspend proceedings. Chouinard v. fiertrand, 6 Q. L. R. 201, S. C. 1880. 4MO. Whenever witnesses are summoned from beyond the jurisdiction, their expenses cannot be taxed, against the opposite party, for more than it would have cost to exa- mine them by means of a commission, unless the cou'^t or a judge otherwise orders. C. S. L. C. c. 79, s, 11. ^M Ji: Pi ! ! 1 288 OF COSTS, ARTS. 481-482. H . Fitzgerald, 3 Q. L. R. 381, C. C. 1877 ; Atwell v. Browne, 9 L. C. ■ , Q. B. 1865. 14. An attorney who has been paid costs for which he has obtained distraction cannot bo obliged to return them ;f the judgment under which he was paid is reversed in appeal. Holton v. Andrews et ah, 3 Q. L. R. 19, S. C. 1876. 15. The formality of a judgment declaring the case ended is not neces- sary to enable an attorney to recover costs against his client if it appear that the suit has been settled. O'Farrell v. Reciprocity M. Co., 4 Q. L. R. 190, S. C. 1876. 16. Distraction of costs was awaidod to the appellant's attorney by a judgment of the Circuit Court. Tlio judgment was confirmed in appeal, with costs to the appellant — Held, that the respondent could, to an execu- tion by the appellant, opjiose, as coinpi'iisation, a claim he had against the appellant's attorney to the extent of the costs in the Circuit Court of which distraction had been granted, but such claim would not off-set the costs in appeal. Logan v. Kilgour, 3 Q. B. K. 836, Q. B. 1883. See 27 L. C. J. 138. 17. Where the attorney has not obtained disrtaction of costs, ht has no right to claim the bailiff's charges from his client, who should pay them to that officer. Theroux v. Greer, 7 L. N. 7, C. C. 1883. 19 F. c. c. p. ;i;-;;* %■• 1:8''; it'.': '"!"^^-^;^■:^;irbl Ill 290 REVISION OF JUDGMENTS BY DEFAULT, ART. 483. T'i'LE SECOND. OF R ^DIES AGAINST JUDGMENTS. CHAPTEE FIRST. OF REVISION. SECTION I. OF THE REVISION OF JUDGMENTS BY T^EFAULT. 4S3. The defendant may apply by petition, within a year and a day, for the revision of any judgment rendered against him by default, in the following cases : 1. In all cases of simple attachment, or attachment by garnishment, when the service has been effected under the provisions of articlp 68. 2. Whenever he has not been served personally or at his real domicile, or ordinary and actual place of residence. C. S. L. C, c. 83, ss. Ill, 112. A defendant retained an attorney to defend his case upon the merits. The attorney prepared an appearance which he believed he had filed, but owing to an omission in some quarter the proper register did not show that an appearance was ever received at the office of the prothonotary, and judgment was rendevad by default. Held, that in such a case a peti- tion in revoca6ion of judgment would be allowed, the judgment com- plained of not being susceptible of appeal, and that the list of cases mentioned in C. P. C. 505 as giving rise to the r^uete ciiule is not exclusive. Neil et al. v. Thompson, et al., 7 Q. L. R. 210, 11 R. L. 143, S. C. R. 1881. REVISION OF JUDGMENTS BY DEFAULT, ART. 484. 291 4S4. The defendant may seek relief against any judg- ment rendered in conformity to the provisions of articles 89, 90, 91 or 92, by means of an opposition, made either before or after seizure, but before sale, or within ten days from the date of a return of nulla bona, if there is one, or within ten days from the service upon him of any seizure by garnishment, issued in virtue of such judgment. Ibid. S8. 116, 116 ; 23 Vict. c. 57, ss. 43, 46. 46 Vict., c. 26 (Que.) : 4. Every party condemned by default to appear or to plead, may proceed agaioBV the judgment, whether rendered in term or in vacation, by oppo- sition, according to articles 484 and following of the Code of Civil Proce- dure ; but no such opposition shall be allowed in any case, unless the party condemned produces an affidavit that such party has a good de- fence to the action, which defence shall be set out in said opposition and unless such party has been prevented from fyling his defence by surprise, fraud, or for other causes which shall be, by the judge, considered just and sufficient. 1. A defendant may file an opposition to a judgment rendered against him in vacation, even after the return of the writ of execution, if it do not appear by the return of the bailiff to the writ that a day has been fixed for the sale of the effects seized. Martineau v. Cadoret, 12 L. C. B. 423, S. C. 1862. 2. Where a judgment was rendered against the defendant by default for a larger sum than was due, and the proper delay between service of summons and return was not allowed — Held, reversing the judgment of the court below, that the rule as to opposing judgments within eight days after service, is not law in Lower Canada, and that the defendant had the right, especiuUy under the peculiar circumstances of the case, to file his opposition any time within thirty days after judgment. Gushing v. Hunter, <& The Eastern Townships Bank v. Hunter i& Gushing, 1 L. C. L. J. 114, S. C. R. 1866. 3. When the proch-verhal of nulla bona was neither returned nor filed, iiud the judgment was rendered under art. 89 et seq. of the Code of Pro- cedure — Held, that the defendant might validly oppose the sale of the efifects seized by simple opposition, without even an order from the judge or court. Leprolion v. Grehasa (& Grebassa, 14 L. C. J. 159, S. C. R. 1869. 4. An opposition to a judgment made after ten days from the r.->*^^um of nulla bo7ui, but before the sale of immoveables, will be rejected on motion. Shepherd v. Morin t£ Morin, 5 R. L. 245, C. C. 1873. Ir"-, nnMA ill Mr 292 REVISION OP JUDGMENTS BY DEFAULT, ART3. 484-486. 6. One cannot proce^u by an opposition against a judgment rendered in term by thu Ciiouit Court, and such opposition will be dismissed on simple motion. Bowie v. Murray <& Murray, 4 B. L. 566, G. C. 1872; ai.J Lareau et al. v. Archambault, 6 P L. 848 and 1? L. G. J. 56, C. G. 1874 ; Paritteau v. Qrenier d- Grenier, LI L. G. J. 177, G. G. 1874. 6. And an opposition to a, judgment rendered on the evidence of the plaintiff during term by the Circuit Court will be rejected on simple motion. Lord v. Bazinet et al. <& Bazinet et al., 18 L. C. J. 9, S. C. 1874. 4S5« The petition revision mentioned in article 483, and the opposition m«r .oned in article 484, must contahi, on pain of nullity, all grounds whether in support of such petition or opposition, or against the judgment, with an election of a domicile within one mile from the place where the court is held, and be accompanied by all documents in support of it. C. S. L. C. c. 83, s. 116. 4Stf. The petition or opposition must, moreover, be ac- companied with an affidavit of the defendant, or of one of the defendants, or of some other credible person, that the allegations contained in such petition or opposition are, to his knowledge, true ; and, in the case of article 484, a suffi- cient sum must be deposited with the prothonotary to meet the costs incurred after the return of the writ up to the judgment, including the service thereof ; which costs must be paid to the plaintiff as soon as they are taxed, out of the sum so deposited. Ibid., a. 117. Form No. 33. In connection with article 486. Affidavit of an Opposant or of some other person. Lower Canada, ) In the Superior {or Circuit) District (or Circuit) of j Court. A. B. Plaintiff, vs. C. D., Defendant, and G. H. Opposant. G. H., of , the opposant, {or one of the opposants in this cause, {or other person, as the case may be) being duly BEVISION OF JUDOMBNTS BY DEFAULT, ART. 486. 298 sworn doth depose and say, that the facts articulated and set forth in the annexed opposition, and each and every of them, is and are true ; and that the said opposition is not made with any intent unjustly to retard or delay the exe- cution of the judgment recorded in this cause, but that the same is made in good faith for the sole purpose of obtain- ing justice, and the said deponent hath signed {or hath declared himself unable to sign, being thereunto duly required). Signature, G. H. , this day J. P. Sworn before me, at of , 18 . Signature of the Judge, Prothonotary, Clerk or Commissioner. if III J, rt m ' V I u\ ^'il I f 1. Where the defendant aonght to set aside a judgment obtained in vacation — Held, that he was bound to deposit only the amount of costs incurred by the plaintiff after the return of the action up to obtaining judgment inclusively, and that without the fees of the plaintiff's attorney, and that he was not bound to furnish to the plaintiff a copy of the affida- vit filed with his opposition. Qauthier v. Marchand, 5 L. C. J. 101, S. C. 1861. 2. The omission to deposit with an opposition to a judgment a sufficient sum to pay the costs incurred by the plaintiff from the return of the writ is not a sufficient cause for the rejection of the opposition. Venner v. Lamontagne it Lamontc.gne, 16 L. C. R. 49, C. G. 1864. 3. The affidavit accompanying an opposition to a judgment must set forth that the facts therein stated are true " to the knowledge of the depo- nent." Shepherd v. Morrin i£ Morrin, 5 R. L. 245, C. C. 1872. Contra : Detrochers v. Crilly, 12 R. L. 315, S. C. 1883. 4. And where an opposition to a judgment by default was filed by the defendants on the sole ground that me of them had been summoned by a wrong name — Held, that such an or xisition wes in the nature of a preli- minary exception to the action, an J. must consequently be accompanied by the deposits for costs requirea ir.. such cases, in addition to that required by article 486. Jubinville v. The Bcik of British North Avierica, 18 L. C. J. 237, Q. B. 1874. 294 REVISION OF JUDGMENTS BT DEFAUT.T, ARTS. 487-492. L* . (Ml 487* The opposition mentioned in article 484 is filed in the prothonotary's office ; but, the prothonotary must not receive it unless a copy thereof is at the same time left for the plaintiff. Ibid. s. 118. 4S8. The filing of such opposition has the effect of sus- pending the sale under the seizure until it is decided by the court. The prothonotary must pjrant a certificate in dupli- cate of the filing of the opposition mentioned in the prece- ding article ; and one of the duplicates must be given to the officer making the seizure, who must give a receipt therefor, in default of which it is served upon him at his own cost. The officer is thereupon bound to stay his proceedings, and to return into court the writ of execution and the certificate which he has received. Ibid. s. 116, § 8. ^H9» If the opposition is filed before the issuing of a writ of execution, notice of the filing thereof must be given to the plaintiff, and the delays for contesting the sam, are computed from the date of the service of such notice. Ibul. 8. 116. 4flO* The petition for revision, and the opposition, are held to form part of the proceedings upon the original suit, and to be a defence to the action, and as such are subject to the provisions concerning the contestation of ordinary suits. Ibid. ss. 116, § 3,-119, 120. 401. If the opposition is maintained, in whole or in part, the costs incurred upon the execution are borne by the plaintiff. Ibid. § 123. 493* If the opposition is maintained by reason of any irregularity in the proceedings of the plaintiff, the court, in maintaining the opposition with costs, may condemn him to such further costs as it may think fit, but not exceeding in amount the sum deposited by the defendant. Ibid. s. 124. OF REVIEW BEFORE THREE JUDOBB, ARTS. 498-49 iinal judgment from which an appeal lies; 2. Upon every judgmout or order rendered by a judge in summary matters under the provisions contained in the third part of this code ; 3. Upon any judgment renderwl on any ^letitiou or motion to set aside or quash an attachment before judgment or capai» ad respondendum. 10. The judges of the Sui>erior Court, at their sittings in review, shall also have exclusive original jurisdiction to hear and determine all motions for judgment upon a verdict, or for n iw trial, or for judgment ;iok obstante veredicto or in arrest of judgment, in cases in the Superior Court, in the districts of Quebec and Montreal." See 35 Vict. o. 6, s. 13 (Que.), under Art. 423 ante. \h \i -'i' ! M ' ^!i. fti ^i :^r 1 1-1 I i' i ^4.96 or REVIEW REFORE THREE JUDGES, ART. 494. 87 Vict, c. 5, (Que.) 1. "No person wlio shall have inaoribed in review before three judges, any cause iu the Circuit Court susceptible of appeal to the Court of Queen's Bench, or any cause in the Superior Court, and shall on such inscription have proceeded to judgment, shall be entitled to appeal to the Court of Queen's Bench from the judgment of the Superior (.'ourt sittin^' in review, if such judgment confirms that rendered in the first instance. 2. Causes adjudicated upon in review, which are susceptible of api^eal to Her Majesty in her Privy Council, but the ap^ieal whereof to the Cour; of Queen's Bench is taken away by this Act, may nevertheless beappunod to Uer Majesty by observing the same formalities and provisiDiis and subject to the same conditions, aa in the case of judgments rendered by the Court of Queen's Bench (appeal side), and with the same effect, as if every provision of law, in relation to appeal to Her Majesty from judg- ments of the Court of Queen's Bench was antiw enacted with respect to the Superior Court sitting in review, its officers ur their ofiice." 8. Repeals 36 Vict. o. 12 (Que). 1. 34 Vict. c. 4. s. 5, gives no jnriodiction to the Court of Review where no trial has been had, the jurisdiction being restricted to the four cases mentioned. Bain v. White, 2 L. N. 329 and 330, 8. C. R 1871). 2. An inscription in Review in general terms from a final judgment does not submit for review an interlocutory judgUicut not referred to in Buch final judgment, and especially when the inscription for final hearing in the court below did not refer to any interlocutory judgment. Montreal i6 0. Forwarding Co. v. Dixon, 3 L. N. 70, 24 L. C. J. 225, S. C. R. 1879. 3. An order of the S. C dismissing a bailiff for misconduct is not sus- ceptible of revision. Chartrand v. Lambert, 3 L. N. 77, 8 C. R. 1880. 4. A judgment ordering plaintiff to make option between two incom- patible causes of action, is not sasceptible of review. Fair v. Cassils, 'A L. N. 183, S. C. R. 1880. 5. An inscription in Review from a judgment fixing the facts to bo eabmitted to tl j jury was " ?jected on motion. Dominion Type Foundry Co. v. Canada Gvarantee Co., 5 L. N 77, 8. C. R. 1880. 6. A judgment on a petition to be appointed judicial guardian is not susceptible of revision. Oagnon v. Lalonde, 4 L. N. 277, S. C. R. 1881. 7. A bailiff who by the judgment complained of was suspended in con- sequence of his testimony as a witness in the cause is not a party to thc- suit in which he was examined. The Court of Review will not upon an inscription by him inquire into the legality of the suspension. Hurtubise v. Eiendeau, 4 L. N. 364, S. C. R. 1881. OF REVIEW DEFORE THREE JUDOK8, ART. 494. 297 R. A jtid(;(ment ^rantinK a petition of plaintiff, under C. P. C. 8f)9, in not a ilnal judgment aubjeot to bo roviowod. Wliitehead v. Kiefer d; White, 8 L. N. (501, M. L. R., 1 Q. B., 141, 8, C. R. 1884. 9. A liypothocary action for the recovery of arrears of oohool taxes ir, appealable and thoi'efore may be inscribed in review. Crepeau v. Talbot et al., 10 Q. L. R. 4», 8. 0. R. 1883. 10. A judgment maintaining a demurrer to part of a declaration is an interlocutory judgment, and cannot bo revised by three judges in review. Lottinville v. Mcdrecvy, 4 Q. L. R. 242, 8. C. It. 1878. 11. The decision of a judge out of term upon a contrninte par corpt is susceptible of being reviewed. An error in the date of the writ is not fatal. Nolan v. IkiMom, 4 Q. L. R. 8;}r., S. C. C. 1878. 12. A writ of prohibition issued to prevent a judgment by the Court of Quarter 8es8ions in the matter of an infraction of the License Act. The judgment of the Superior Court was confirmed in review, and the magis- trate wiio rcHisted the prohibition was refuHed the right to appeal as there was choH' juijA' between the parties, although it was not he who had in- scribed in review. Doiwet v. St. Amand, 4 Q. L. R. 14C, Q. B. 1878. 18. A judgment rendered in the C. G. under the provisions of Art. 691 et »eq. of the Municipal Code is subject to appeal, and consequently to be reviewed. McLaren v. The Corporation of the T. of Buckingham, 17 L. C. J. o'6, S. C. R. 1872. 14. The Superior Court has no jurisdiction in revision ol a judgment which is not appealable. Taylor v. Mullen, 11 L. G. J. 48, & 17 L. C. R. 397, 8. C. R. 186(>. 15. The Court of Review cannot afford relief against a condemnation to costs in the court *Wow, Macdonald et at. v. MoUeur, 13 L. G. J. 189, H. C. R. 1808: Contra : FiliatrauU v. Klie, 7 L. N. 378, M. L. R. 1, 8. C. (16, 8. C. R. 1884 ; Ilallv. liirgham, 3 L. N. 219,8. C R. 1880; McLeodv. Marcil, « L. N. 55, 8. C. R. 1882. 8ee Paquet v, Porier, 5 L. N. 359, 8. C. U. 1882. 16. An inscription for review in an action under the Lessor and Lessee Act, in whicli the amount of rent or annual value does not show any lurisdiotion, will on motion of the respondent be discharged. Jiobiiuionet III. v. Wat.ion ex qual. 12 L. C. J. 215, S. C. R. 1868. 17. The Court of Review has no jurisdiction ia revision of an interlo- cutory judgment which is not upjMjalable. Beaudry v. (ror^ntan, 12 L. C. J. 219, S. C. R. 1868. 18. The Court of Review has no jurisdiction to revise the taxation of a bill of costs in revision. Belleitle v. Lyman et aU, 14 L. C. J. 137, 8. C. R. 1870. 298 OF REVIEW BEFORE THREE JUDGES, ART. 494. 10. The Court of Review haa no juriidiotion to hear an appeal from an order of a judge in chambers, empowering a married woman to borrow u aum of money on the security of her real estate without the consent of her husband. Dii/nux exp. v. Itobillard, 20 L. C. J. 806, 8. C. R. 1870. 20. The Court of Review will reverse a judgment refusing permission to serve a correct copy of the writ, and when it is evident that the error in the writ served is of a trifling character, costs will be granted to the plaintiff in both courts. Bourdon v. Picard et al., 27 L. C. J. lUO, 6 L. N. 176, 8 C. R. 1882. 21. The pl'iintiff whose action has been dismissed without recourse may in review soolf that it be dismissed only kuh/ a »e pourvoir. Pillar et al. v. Larue, H R. L. 704. 8. C, R. 1871. 22. In mattors pertaining to municipal corporations there is no appeal from the Superior Court to the Court of Review, lieaudnj v. Worknuiu, 12 L. C. J. 211, 8. C. R. 1808 ; Fhct v. Founiier, 3 Q. L. R. 331, R. C. R. 1877. 48 Vict. cap. 21. 28. No review can be hod of a judgment of the Circuit Court respecting a municipal office. Tfu'roux v. The Corporation of Arthaba»ka, \) Q. R. L. 62, 8. C. R. 1882. 24. Nor from a judgment of the Circuit Court on the contestation of a municipal election. Lacertc et al. v. Dufrenne et al. 9 Q. L. R. lUO, 8. C. R. 190, 8. C. R. 1883. 25. A judgment homologating a report of distribution may be inscribed for revision or appealed from even when no contestation has been iilod. Eastern Township lUink v. Vncaud, 17 L. C. R. 120, 9 L. C. J. 150, 2L. C. L. J. 270, y. C. ct Q. B 1800. 26. A party may inscribe in Review from a judgment rendered on a writ of luibeax corpua by a Judge in Chambers, lieg. v. Hull, 3 Q. L. R. 130, 8. C. R. 1870. 27. No right of revision exists in favour of the Crown when the right of appeal is denied by law. The Attij-Gcn. v. The Corporation of the Co. of Compton,Vo L. C. J. 258, S. C. R. 1871. 28. No personal action in which the amount demanded exceeds $500 can be brought to review under 36 Vict. cap. 12 (Que.), which is an amend- ment of Art. 494, although such article is not expressly -designated us required by the Act 31 Vict. cap. 7, s. 10 (Que.) Gihaon et al. v. Lindsay, 17 L. C. J. 244, 8. C. R. 1873. 29. Wheu the amount of u judgment does not exceed 9100 and the cre- ditor acquiesces in the judgment, there is no right of revision, although the amount demanded may have exceeded that amount. Lefebere v. Murdoch, 13 L. C. J. 328, 8. C. R 1809. OF REVIEW BEFORE THREE JUDOEB, ART8. 494-497. 299 80. Tho Court will entertain an appeal from a deoision of a Jndge in Chamborii appointing; a HeqiiuHtrator in vacation notwithatandintf Blau- chard v. Miller, Art. lllfi; Heritable Securitleiand Mortp, Atn. v. liavine, 2 L. N, 32A. B. C. R. 1879 ; McCracken v. Logue, L. N. 90, 8. C. II. 1888, and L. N, 820, Q, B. 1888. 409* l^he review takes jylacc hrfore three jtuUjcs of the Superior Court, and the jtulje who rendered the jiuUjment complained of may he one of them. Ibid., 88. 20-25. 86 Vict., c. 10, (Que.) 8. Art. 495 is repealed, and tho followin^^ Hubstitnted therefor : 405. " ThiH revision takoa place before three judges of the Superior Court, and the judge who has rendered the judgment complained of, cannot sit at tho same." 41I0« The review of judgments renclered in the dis- tricts of Montreal, Ottawa, Terrebonne, Joliette, Richelieu, St. Francis, Bedford, bt. Hyacinth, Iberville and Beauhar- noi.s, takes place at tho city of Montreal ; that of judgments rendered in the districts of Quebec, Throe Rivers, Saguenay, Chicoutimi, Gaspe, Rimouski, Kamouraska, Montiiiagny, Beauco and Arthabaska, at the city of Quebec. Ihxd, s. 25. 4fl7« This review cannot he obtained until the partij dc- mandimj it has depDsitcd, in the office of the prothonntari/ of the court which rendered the jiuhjment, and within eight days from the date of such Judriment, a sum of twenty dollars, if the amount of the suit does not exceed four hundred dollars ; or of forty dollars if the amount of the suit exceeds four hundred dollars, or if it he a real action ; toycthcr with an additional sum of three dollars for niakiny up and trans- mittiny the record, when the judyment has been rendercJ ( '>;> where than in the cities of Quebec and of Montreal. The amount thus deposited is intended to pay the costs of the review incurred by the op^wsite party, if the court should grant them, if not, it is returned to the party by ivhom it was deposited. Ibid., s. 21. See 34 Vict., c. 4, s. 4 (Que.), under Art. 463 supra. ' \m 'i Yfj t % 300 OF RBVIEW BEFORE THREE JUDGES, ART. 497. 48 Vict., c. 21 (Que.) 2. Article 497 of the said Code is repealed and replaced by the fol- lowing : — " 497. This review cannot be obtained, until the party demanding it has deposited in the office of the prothonotary of the court which rendered the judgment and within eight days from the date of such judgment a sum of twenty dollars, if the amount of the suit does not exceed four hundred dollars, or of forty dollars if the amount of the suit exceed four hundred dollars, if the review is taken in virtue of paragraph 4 of article 494, or if it be a real action ; together with an additional sum of three dollars for making up and transmitting the record, when the judgment has been rendered elsewhere than in the cities of Quebec and Montreal. The amount thus deposited is intended to pay the costs of the review incurred by the opposite party if the court should grant them, if not, it is returned to the party by whom it was deposited." 1. On an inscription from a judgment rendered on a writ of possession a deposit of 820 suffices. McLellan v. Hale, 4 L. N. 351, S. C. R. 1881. 2. The court will not order the prothonotary to refund a deposit of 940 made by a pt rty to whom the deposit has been refunded on his suc- ceeding in review, although the judgment in review be reversed, and the judgment reviewed be re-established in its entirety. Reg. ex. rel. v. O'Farell & Brassard et ah, 4 Q. L. R. S. C. 1878. 3. When the delay for inscribing a case for review would expire on a Sunday it is prolonged until the next juridical day. Scatcherd v. Allan, 1 L. C. L. J. 96, b. C.R. 1865 ; Lenoir DesmamU etvir, 17 L. C.J. 81, 8. C. R. 1872. 4. The delay of eight days mentioned in art. 497, runs during the long vacrtion. Foamier v. Ledoux, 13 L. C. J. 13 L. C. J. 332, S. C. R, 1869. •4 . '•S % ' ' ■- ; ■ 5. An inscription for review and deposit made on the eighth day after judgment is sufficient, though notice of them be only given on the follow- ing day. Jacques v. Lmsier, 12 L. C. J. 216, 8. C. R. 1868 ; Hingston v. Larue, 7 Q. L. R. 306 8. C. R. 1881. 6. In an inscription for review by the Superior Court it is not neces- sary to say " by three judges of ths Superior Court." McLaren v. The Corporation of t/ie Township of Buckingham, 17 L. C. J. 53, 8. C. R. 1872. 7. Where an inscription has been discharged on application of the op- posing party in the absence of the inbcribing party — Held, that it may be replaced on the role during the same term and before the actual remission of the record on sufficient cause shewn. Sheppard v. Btichanan, 17 L. C. J. 191, 8. C. R. 1873. OF REVIEW BEFORE THREE JUDGES, ART. 497. 801 8. Where an inscription for review ran " from the judgment rendered in this cause by the Superior Court," and the judgment was actually ren. dered by the Circuit Court — Held, that the inscription must be discharged, and could no^j be amended on motion. McPherson et al. v. Barthe, 6 B. L. 259, S. C. R. 1873. 9. When application was made to oblige the prothonotary to receive the inscription without a deposit by consent of the other party, it was refused on the ground that the prothonotary was liable for the deposit as the law says it must be made. Loiselle v. Loiselle, 2 L. C. L. J. 37, S. C. H. 1860 : La/erriere v. The Mutml Fire Ins. Co. of Berthier, 24 L. C. J. 206, S. C. R. 1879. 10. One inscription and one deposit in review by the defendant and in- cidental plaintiff is sufficient. Clement v. Blouin, IG L. C. J. 156, S. G. R. 1872 ; Morrison v. Wilson, 16 L. C. J. 196, S. C. R. 1872. KV ;l '■ Li., ■ ri!' :' ■ ■ I !■■■ ,■ 11. Where two defendants have raised separate contestations in the Superior Court, and in review made one inscription and one deposit — Held, that, on plaintiff's motion, a double deposit under 497, C. C. P. would be ordered. Leavitt v. Moss et al., 10 L. C. J. 156, S. C. R. 1872. 12. When several defendants have severed in their defence in the first court, and intend to go to review, the party demanding revision is bound to make as many deposits as there are contestations. Lacombc v. Ste. Marie et at., 15 L. C. J. 268, S. C. R. 1871. 13. Where a case is inscribed for review from the Circuit Court, under the provisions of the Municipal Code, a deposit of 920 is sufficient. McLaren v. The Corporation of the Township of Buckingham, 17 L. C. J. 53, S. C. R. 1872. 14. In a hypothecary action, the amount of which does not exceed $400, the deposit required on an inscription for review is only 820. Forsyth et al. v. Charlebois, 13 L. C. J. 328, S. C. R. 1869. 15. The iuForibing party is entitled to withdraw his deposit so soon as the judgment has boon reversed in his favour. Bousquet v. Brown, 1 Legal News, 554, S. C. 1878. 16. The deposit will not be paid over to the successful party when an appeal is taken from the decision in review. Ryhind v. llouth, 2 L. G. L. J. 44, S. C. 1866. 17. The amount of the deposit is regulated by the amount of plaintiff's demand, although the proceedings be in compulsory liquidation. East- wood V. Comjeau, 3 L. N. 3, S. C. R. 1879. 802 OF REVIEW BEFORE THREE JUDGES, ARTS. 497-498. 18. When several contestations have been decided by the judgment in- . scribed in review, the party inscribing is bonnd to make a deposit for each contesting party, who will be entitled to costs in theevent. of the judgment being confirmed. When the deposit is insufficient, the Court will allow the inscribing party a reasonable delay to increase the deposit to the proper amount. McNamee v. Jorua et al. 4 L. N. 102, 8. C.R. 1881. 19. Where several defendants have pleaded separately, the plaintiff who inscribes in review must make as many deposits as there have been contestations. Pednaud v. Perron et al, 7 Q. L. B. 319, S. C. B. 1881. 20. The Court of Beview may direct a cause which has been disol^arged by error to be replaced on the roll, even when the motion to restore the case is made during a subsequent term of the court, jyatson v. Smith et al. 4 L. N. 402, S. C. B 1881. 40S. As soon as the necessary deposit has been made, and not before, the party may file, in the same office, an in- scription for review, notice of which must be given to the opposite party, and the prothonotary is then bound to transmit the record, without delay, together with a copy of the judgments and orders rendered in the case, to the pro- thonotary of the Superior Court at the place where the case is to be heard, if it is not there already. Ibid. ss. 21-23. 1. Held, that it was not necessary for the party to tell the court that he was aggrieved, the fact of his being aggrieved being sufficiently shown by his asking for a revision of the judgment. Harte v. Alie d' Harte, 1 L. C. L. J. 64, S. C. B. 1805. 2. An inscription for review may be served upon a party personally, or at his attorney's office. Duvernay v. The Corporation of BarthJlJmie, 1 B. L. 714, Q. B. 18«8. Scatcherd v. Allan, 10 L. C. J. 201, 8. C. E. 18(55. 3. A case i »y be inscribed for revision by an advocate other than the attorney of record, and that without substitution. Desrosiers v. Maalonald, 3 R. L. 445, S. C. R. 1871. 4. A party who inscribes in review and makes the required deposit within eight days, is not bound to give notice thereof within the same delay, the law not determining; within what time such formality is to be observed. Lewi» v. Levi» <& Kennebec R. R. Co. 3 Q. L. B. 372, B. C. R. 1877. Sed vide sup. art. 462. 5. The factum, once filed, forms part of the record, and the parties are entitled to communication thereof. Lightall v. Chretien it Craig, 5 L. N. 363, 8. C. B. 1882. OF REVIEW BEFORE THHEE JUDGES, ARTS. 499-501. 303 499. The deposit and inscription faave the effect of stay- ing the execution of the judgment and the appeal. Ibid. 8. 22.' 1. While a case is before the Court of Review, for the purpose of obtaining'4;he revision of a judgment of the Superior Court, no proceeding in the case can be hri in the Superior Court. Meigs et al. v. Aiken, 14 L. C. J. 84, S. C. 1889. 500. The inscription need not be for any particular day, but the case must be heard, in its order, on the day in term next after the expiration of a delay of eight days from the day on which the notice of inscription was filed in the office of the prothonotary of the court in which the judgment was rendered. The court may appoint special days for such review. Ibid. as. 20, 24. See supra 34 Vict. c. 4, s. (Que.), under Art. 463. 48 Vict. c. 21, (Que.) 3. The following article is added after article 500 of the said Code : " 500a. Cases instituted in virtue of paragraph 4 of Article 494, have precedence over all other cases." 1 . A defendant under bail in a case of capias, and being the party in- scribing in review, has a right to have his case heard as a privileged oue. Toland v. Spencer, 15 L. C. J. 145, S. C. R. 1871. 2. Respondent cannot compel his adversary to argue his appeal sooner than eight days after the date of the inscription. Eastwood v. Corriveau, 3 L. N. 3 S. C. R. 1879. Even in suits between lessor and lessee. Penny et al. v. The Montreal Printing and Publishing Co. 6 L. N. G8, S. C. R. 1883. 501* The prothonotary to whom the record is trans- mitted is bound, so soon as he has received it, to set down the case on the roll for hearing, and if the case be pending in the Superior Court at Quebec or Montreal, he is bound to place it on the roll as soon as the inscription and notice are filed. Ibid. s. 23. 304 OF REVIEW BEFORE THREE JUDGES, ARTS. 501-502. 1. Where a party in a/case has asked for revision, and has made the deposit required by law, the prothonotary is bound to put it on the role, notwithstanding that the other party is in default to pay the fees and tax required of him. LeproJion v. Crebassa, 14 L. C. J. 55, S. C. R. 1869. 2 Where the inscribing party fails to file a factum as required by the rules of practice,, and to show cause why the inscription should not be dismissed, the case will be remitted to the court below. Ellis v. Gould, IG L. C. E. 1G8, S. C. R. 503* The judgment in revieM' ;nay be rendered in term or in vacation, by all the judges who heard the case, or by a majority of them ; and the judges may confirm, reverse or alter the original judgment, as the case may require ; and their decision, 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 the 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. [Whenever ary cause has been heard in leview by three judges, and at the least one of the judges who heard the same is present in court and ready to render an interlocu- tory or final judgment therein, then if any judge who heard the cause and would be competent to sit in judgment therein, be absent by reason of his appointment to another court, of sickness, or any other cause, but has addressed a letter to the prothonotary of the court, containing his decision in the case and signed by him, or has, in testimony of his concurrence therein, signed a judgment to be de- livered and delivered by a judge so present, such judge is deemed to be present for the purpose of such judgment; and the decision so transmitted and signed by him has the same effect as if delivered or concurred in by him in open court.] Ibid. s. 24. 1. The Court of Review may send a case back to the Court below in order that the serment supplAoire may be deferred. The Canadian Navi- gation Co. V. McConkey, 1 Legal News, 23, Q. B. 1877. PETITIONS IN REVOCATION OF JUDGMENT, ARTS. 502-505. 305 2. A judgment in review dates only from the day upon which the record is received by the prothonotary. Huot dit Duval v. Gabois, 12 B. L. 57, S. C. 1881. See Lesaard v. Geneat, 6 L. N. 154, Q. B. 1883. 503. [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 sufficient number of judges who heard the case remain to render a judgment, either interlocutory or final.] 504. [If a judge or an assistant judge, who has heard a case, together with other judges, is removed to another court, or is appointed Chief- Justice or a Judge of the same Court or of another Court or obtains leave of absence, he may render judgment, whether interlocutory or final, to- gether with the other judges, as if no such change had taken place.] CHAPTER SECOND. OP PETITIONS IN REVOCATION OP JUDGMENT. 505. Judgments which are not susceptible of being ap- pealed from or opposed, as hereinabove provided, may be revoked, upon a petition presented to the same court, by any person who was a party to or was summoned to be a party to the suit, in tlic following cases : 1. Where fra id or artifice has been made use of by the opposite party ; 2. When they have been rendered upon documents which have been only subsequently discovered to be false, or upon any unauthorized tender or consent disavowed after judg- ment ; 20 F. c. c. p. ' 1 • vM fn-m m m Bravii ' IP mill i' iai I^Bi 11 ' uHf [|a9Hfl|N|fl-j ' In ^if i 1 HII ' wk linl'vR.I) if? r i i'i ' iKxM' Hi 4'. B06 PETITIONS IN ttBVOOATION OP JUDGMENT, AET. 505. 3. When, since they were reiulered, documents of a con- clusive nature have been discov^ired, which had been with- held or concealed by the opposite party. Ord. 1667, tit. 35, art. 34 ; Tothier, Proc. 153 ; C. S. L. C. c. 86, § 3 ; C. N. 2057 : C. P. C. 480. 1. A direct action may be maintained to set aside a judgment obtained by fraud. Kellond v. Read, 18 L. C. J. £>09, Q. B. 1874. 2. If a party has been precluded from adducir>g important eviden'o owing to a misunderstanding between hifi attorneys ancl the attorneys of his adversary, he may be released from the constquonces by iiling a requMe civile. Lusk et al. in re <£• Riddell v Ross, I'J L, 0. J. 104, B. C, 1874. 3. It is only by means of a requite civille or of an appeal, afi the case may be, an<.\ not by means of an opposition ^ fin d'annuller that the reforma uon or Bettiiif»iu>i.Ie of an interlocutory judgment can b-j obtaijied. Gibsone v. Jamieson ei ' <>•, <£• Jlcaly, 16 L. 0. 11 351, 0. C. 1866. 4. An aflSdavit in support oi' t- requite civile cannot be amended, but the petition itself may be aiiv^JM'erl as no affidavit is necessary in support thereof. Voli(jny v. CorbeiUe «; Corbeille, 1 Legal News, 130, S. C. 1878. 5. A 'equate cicih- which does not on its face come within the provisions of art. 505 may be reject., 17 L. C. J. 42, S. C. E. 1873 7. \^ here a firm of two advocates had appeared for the plainti£f and taken action, and subsequently the action was returned signed by one of them only, while the other appeared for the defendant and confessed judgment — Held, on a motion to set aside the judgment as based on pioceedings which were wholly i-'-'igular, that the judgment could not be set aside for irregularities which had accrued previous to judgment having been entered. Molson et al. v. Burroughs, 2 L. C. J. 107, S. C. 1858, See Neil v. Cliampoux, under Art. 483 ante. 8. By a report of distribution Marie P^rrault who had not fyled an opposition, but who was a duly registered hypothecary creditor, was collocated for 9339.43. Her collocation was contested as fraudulent and unfounded by M. Cr6peau, who served his contestation at the prothono- PETITIONS IN REVOCATION OF JUDGMENT, ARTS. 605-606. 307 tary'a office. Marie F^rrault was absent from the Province. Messrs. Laurier & Lavergne, advocates, having received reliable information that her claim was well founded, put in an appearance and wrote to her for instructions. They addressed their letter to Worcester, Mass., where they believed she resided ; but she was really at Manville, Rhode Island. Beceiving no reply, they felt they would not be justified in resisting Cr6peau's contestation any further ; and the result was that the coUo- c&tion in her favour was set aside, she having failed to answer articulated f ac^ i which had also been served at the Prothonotary's office. Held, that t)ie ; f rvices of the contestation and of the interrogatories were illegal and I' all, and that under the circumstances, she was enMtled to a requite cviit. Cooke v. Caron and P^rrault, 10 Q. L. E. 152 ; S. C. R. 1884. 9. A petition to reform a judgment in appeal because of errors in the factum (misprints,) was refused, the original documents being before the court Per Dorion, C.J. : the Court of Appeal cannot grant a requHe civile. Monk, Ramsay and Tessier, J J., contra. Hampson v. Tlwimon, 2 L. M. 'M'>, Q.B. 1879. 10. The defendant appeared but failed to plead or to answer interroga- tories ; and after judgment applied for a requite civile. The petition was ^'lanted, but subsequently rejected, on motion, as the grounds were held insufficient. Campbell v. McGrail, 4 L. N. 325, S. C. 1881. 11. Where the court granted leave to defendant to plead after fore- closure, but the plea was not produced, and the plaintiff made his proof ex parte, and obtained judgment. Held, that the requite civile subse- quently presented by defendant was properly dismissed, notwithstanding the affidavit of his counsel alleging that there was an agreenient between the attorneys that the case should not be proceeded with. Trudel v. Strong, 6 L. N. 315. S. C. R. 1883. 12. Art. 505 C. P. C. has not changed the old law; and does not enumerate all the cases wherein a petition will be allowed. Neil v. Cham- poux, 11 R. L. 143, S. C. R. 1881 ; 7 Q. L. R. 210. 506* It can be received only during the six months after the discovery of the fraud or the falsity, or of the docu- ments withheld, and in all other cases only during the six months after the judgment, or a notice thereof has been served. Ord. 1667, tit. 35, Arts. 16, 5, 18. 1. krequite civile after judgment may be served upon the attorney in the case. Lanij v. Clark <& Clark, 20 L. C. J. 184, S. C. 1876. ffis j) I 'I ;■ ,1 I :.:i,. '1 f w 308 PETITIONS IN REVOCATION OF JUDGMENT, ARTS. 507-509. 507* Petitions for revocation of judgment cannot pre- vent or sta}' execution, [unless an order to suspend is granted by the court or judge.] A petition for a requHe civUe on which an order to suspend has been granted in chambers under 507 C. C. P., need not be presented in open court ; but may be filed in the office of the clerk. Lauderville v. Lacroix, 26 L. C. J. 287, C. C. 1882. The court j» baiic has no right to revise such orders. Ibid. SOH, The attorney who acted for a party in the cause or suit may also represent him upon the petition in revocation of judgment, without a new power being required. Ord. 1667, tit. 35, Art. 6. 509. If there are sufficient grounds for a petition in re- vocation of judgment, the court may replace the parties in the same position as they were in before the judgment, and the proceedings are the same as inordinary suits. The court may also give judgment at the same time upon the petition and upon the merits of the original suit. In all cases it adjudicates upon the costs of the first judgment, according to circumstances. Ord. 1667, tit. 35, Art. 33 ; Ddcl. de Mars, 1685. 1. A requ^e civile ma> *" the absence of the judge. granted by the prothonotary in vacation in ' "t V. Saucier, 1 R. L. 47, S. C. 1867. 2. A motion to reject the requite on the ground that the reasons alleged in support thereof are insufficient will be rejected, the proper procedure being a demurrer. Ibid. '6. Seasons that might be urged against an action or opposition by an exception to the form may be opposed to a petition by a motion to set aside. Maguire v. Stride <£ Stride, 14 L. C. R. 105, S, C. 1864. 4. A petition will not lie if a right of appeal exists. Valin v. The Cor- poration of the County of Terrebonne, 4 L. C. J. 14, S. C, 1858. OF OPPOSITIONS BY THIRD PiBTIES, ART. 510. 809 CHAPTER THIRD. OF OPPOSITIONS BY THIRD PARTIES. 510* Any person whose interests are affected by a judg- ment rendered in a case in which neither he nor persons representing him were made parties, may file an opposition to such judgment. D^cl. 22 April, 1732, Art 5 ; Code, Donations, Art. 218 a ; Pothier, Proc. 126 ; Ord. 1667, tit. 35, Art. 2 ; C. P. C. 474. 1. A person whose interests are affected by a judgment in a case to -which he is not a party, may intervene by opposition to such judgment or by direct action with a view to be maintained in all his rights. Thouin V. LeblatM, 10 L. C. B. 870. Q. B. 1860; Hall V. Harrison, 4 L. N. 325, S. C. 1881. 2. I'rom the moment that the interests of a third party are affected by a judgment rendered in a case in which he is not a party, he may protect his interests by an opposition. Molleur v. Marcliand <& the Attorney- General, 5 R. L. 379, S. C. 1874. 8. And where the Crown possesses a privilege on the property of an individual it may exercise its privilege by such opposition, provided it be first regularly served on all the parties in the case. Ibid. 4. An opposition to a sale of real estate by a tutor ad hoc, authorized to act for the minors, is maintainable without registration of the acta of tutorship and the Registry Ordinance 4 Yict. cap. 30, sec. 24, does not apply to such opposition. Chouitiard v. Demers d; Gareau et qual. 5 L. C. R. 401, S. C. 1855. 5. The fact that one of the tiert opposants (who claim as co-partners) is a defendant in the cause, is no bar to their right to file an opposition. McDonald et vir v. McDonald d Dodds, 14 L. C. J. 307, S. C. R. 1869. 6. The proprietor of a property which has been expropriated, and the valuation of which has been set aside by the court, cannot proceed by opposition against such juc^gment, notwithstanding that he was not a party to the first instance. 'The Corporation of Montreal v. Wilson, 2 R. L. 624, 8. C. 1870. 7. The notice given to the parties of a petition for an opposition by third parties, in order to suspend the execution of the judgment, does not 'i-ai; 810 OF APPEALS, ARTS. 510-518. constitute of itself the production and presentation of an opposition. Molleurv. Marchand v. The Attorney-General, 6 R. L. 879, S. C. 1874. 8. Where payment of an amount of a judgment attacked by opposition is made by the defendant before an order has been granted to Buspoud the execution, it must bo considered as final, both as regards the opposant and the other parties therein. Mallear v. Marchand cO The Attorney - General, 6 R. L. 879, S. C. 1874. 9. The creditors of a defendant cannot attack a judgment by means of a tierce-opposition unless fraud or collusion is alleged. Stadacona Ins. Co, V. Gagnon, 5 Q. L. R. 231, S. C. R. 1879. See llobertHon v. Smith, under Art. 860, post. 511. This opposition is formed by means of a petition to the court, which must contain an election of domicile on pain of nuUit}', the grounds of opposition, and proper con- clusions, and must be served upon the parties in the cause, or upon the attorneys who represented them, if it is made within a year and a day after the judgment. 86 Vict. c. 6 (Que.) : "14. The opposition must, moreover, on pain of nullity, be accom- panied with an affidavit of the opposant, or some other credible person, that the allegations contained in such opposition, are, to the best of his knowledge, true." SiV2» The proceedings upon oppositions by third parties are the same as upon ordinary suits. Ii -'• ■- ■ -si ... ^ !■' 1 ■ i ■ CHAPTER FOURTH. OF APPEALS. ai^- An appeal from all judgments rendered by the Superior Court lies to the Court of Queen's Bench, as here- inafter provided in the fourth book. See Arts. 1114 et seq. infra. OF PUTTINO IN SECURITY, ARTS. 614-6 1?. TITLE THIRD. OF THE EXECUTION OF JUDGMENTS. 811 CHAPTER FIRST. OF THE VOLUNTARY EXECUTION OF JUDGMENTS. SECTION I. OF PUTTING IN SECURITY. JS14* Every judgment ordering security to be given must fix the time within which sureties shall be offered. C. P. C. 517. 519* Sureties are offered after notice served upon the opposite party, and, when not objected to, they enter into a bond at the prothonotary's otiice. Ord. 1667, tit. 28, art. 2 ; Pothier, Proc. 147 ; C. P. C. 518. Slfii. Except in cases where the law requires only per- sonal justification, if a surety is obj«^cted to he may be required to give in a declaration of his real property, together with his titles thereto. Sureties may, in all cases, be required to justify on oath their suflieiency, and the judge or prothonotary may receive and administer the necessary oath. Ord. 1667, tit. 28, art. 8; C. P. C. 518. 517* A surety may be objected to : 1. If he has not the qualifications required according to the title Of Suretyship in the Civil Code ; 2. If he is not sufiicient. Pothier, Proc. 148. i; ! ■'■* I fl If ^H f'hr; ; f 'V n 812 OP ACCOUNTINO, AIITB. 518-R21. lilH, Tlio Hullticioncy of a surety Ih docidcd upon the documonts and atlidavits produced, without a proof hcing ordered. Ord. 1(507, tit. 28, art. 8 ; Pothier, Proo. 148, C. P. C. 521. SIO. If the surety is accepted, the hond is drawn up and entered into in conformity with the judgment and re- mains in the prothonotary'w office as part of the record in the case. Ord. 1007, tit. xxviii, art. 4; C. P. G. 522. SSiO. The acceptance of sureties is decided upon sum- marily, without any petition or writings, and the hond is entered into notwithstanding oppositions or appeals, and without prejudice thereto. Ord. 1007, tit. xxviii. art. 8 ; Pothier. Proc. 148, C. P. C. 521. SECTION II. OF ACCOUNTINO. 521. Every judgment ordering an account must fix a delay for rendering it. Ord. 1007, tit. xxviii, art. 8 ; Pothier, Proc. 89 ; C. P. C. 530. 1. When a tutor is sued by his ward (become of a^je) to render an ac- coant, and he pleads that he haa always been ready to do so, but asks that the action be dismissed with costs, and at the same time prays acte of the production of an account fyleil by him with his plea, the plea will be dismissed, and the defendant be ordered to fyle his account purely and simply in due form. Wood et ux v. U iUon, 27 L. C. J. 149, S. C. 11. 1882. 2. Where the parties to an action to render an account do not deom it expedient to have it decided preliminarily whether the defendant is bound to render an account, but proceed to the contestation of the account fyled by him, the court will decide upon the question as submitted. Vurochers V. Lauzon, 12 R. L. 403, S. C. 1883. 8. A judgment ordering a defendant to rsnderan account is an ordinary condemnation, and he will not be held to be in contempt of Court if he neglect to account. Crowley v. Chretien, 8 L. N. C8, S. C. 1882. OP ACOOUNTINO, ARTS. 522-526. 818 (S23. Tho account muBt be rendered nominately to the party entitled to it ; it must be sworn to and filed in the prothonotary's olHco within tho dehiy fixed, together with the vouchers in support thereof. Ord. 1GC7, tit. 29, art. 8; Pothier, Proc. 81), C. P. C. 684. The court may, however, upon motion of which notice has been duly given, extend the delay for rendering the account. Pothier, Proc. 89. Exocutiun cannot be isHuocl ilc piano on a jiul^mont in appeal ordering; un account where the account wuh not duly rendered within tho delayti allowed by the court. Ll'h Citn' et MarguilUen, etc, de Beaiiharnoii v. Jlobillard, 2 L. N. 'I'M, Q. 1). 187!). Si*2itm Tho account must contain, under separate heads, the receipts and expenditure, and close with a recapitula- tion of Huch receipts and expenditure, establishing the balance ; whatever remains to be recovered being reserved for a separate head. Ord. 1G67, tit. 29, art. 7 ; C. P. C. 538. 1. An account rendered and fyled under a judgment will be rejected as irre^'ular if it does not exhibit the three heads of receipts, expenditure, and balance remaining to be recovered. Le* Curd etc. de Beauharnoit v, liobillard, 21 L. C. J. 122, S. C. 1877. 524. Under the head of receipts must be placed all sums which the accounting party has received, and all those that he ought to have received during his manage- ment. Pothier, Proc. 90. 525. The accounting party cannot place under the head of expenditure the costs of the judgment ordering him to account, unless he is authorized to do so by the court ; but he may charge under that head his travelling expenses, the attendances of the attorney who made up the account, the cost of presenting and verifying it, and of whatever copies thereof are required. Ord. 1667, tit. 29, art. 19 ; C. P. C. 632. ;. .V 1 :v,! i ^'h 314 OP ACCOUNTING, ARTS. 525-530. J H>V; !!, 1. In an action to account, an account unsustained by vouchers will not be rejected on motion when it is established by affidavit that the vouchers are in the poBsession of third parties. Chevalier v. Cuvillier et al. 21 L. C. J. 308, S. C. 1877. S%*2Sm If the account shows an excess of receipts over expenditure, the party to whom it is rendered may pro- visionally demand execution for the balance, saving his right to contest the remainder of the account. David v. Hayes, Montreal, 29th July, 1846, in appeal 10th Nov., 1847 ; C. P. C. 535. 53T. Parties accounted to are bound to take communi- cation of the account and vouchers at the prothonotary's ofl&ce, and to file their contestations of the account, if they contest it, within a delay of fifteen days, which may be extended by the court or a judge upon application pursuant to notice. Ord. 1667, tit. 29, art. 13 ; Poth. Proc. 91. *i^H, Parties accounted to, whose interests are the same, must name the same attorney ; if they do not agree in their choice, the attorney first in the case remains attorney of record, saving the right of the other parties accounted to to emjjloy attorneys of their own, upon payment of all costs occasioned thereby. Ord. 1667, tit. 29, art. 11 ; C. P. C. 529. *5SO. The accounting party has a delay of eight days after the filing of the contestation to file his answers in support of the account, and the other party has a similar delay to file his replications. Ord. 1667, tit. 29, ar^.. 13 ; Poth. Proc. 91. 530. Tn default of filing the contestations, answers or replications within the delay, the party bound to file them is held to admit whatever is contained in the document he fails to contest. Pothier. loc. ( it. 1. An account not coniested waij held to bo admitted. 3 L. N. 24, 24 L. C. J. 161, Q. B. 1879. Hart V. Hart, OF SURRENDER, ARTS. 531-584. 8L5 531. After the issues are co upleted upon the account rendered, the court may order the parties to proof lespec- tively, according to the ordinary course, or may refer the case for settlement to arbitrators, or to a practitioner or an accountant, according to its nature. Ord. 1667, tit. 28, art. 22 ; Ord. 1566, art. 83 ; Edit. 1560, art. 2 ; 1 Pig. 248. 532. The jndgment upon the account must contain a computation of the receipts and expenditure, and establish the balance if there be any. Ord. 1667, tit. 29, art. 20 ; C. P. C. 540. «I33. If the defendant fails to render an account, the plaintiff may proceed to have one made out in the manner mentioned in the article 528. 1. If defendant fail to render un account plaintiff may proceed to have one made out or have defendaat condemned to pay him one or more provisions until he renders an account, or to pay a final sum in the discretion of the court. Roy v. Gauthier, 1 Q. B. R, 70 and 149, Q. B. 1880. SECTION in. OF SURRENDER. 534. The voluntary execution of any judgment ordering the restitution and delivery of any moveable or immoveable thing is effected, unless the judgment mal L. C. R. I'.ll and 1 L. C. L. J. 55, Q. 3. Ki'Jy. 2. Tender without deposit does not prevent interest from accruing. Dumont v. Laforge, 1 Q. L. R. 159, S. C. 1874. 5 lit. Moneys paid into court cannot, without the author- ization of the court, be withdrawn by the party who paid them in. w i I'l 1 'i J ' 'f ■ 1 1 , ;■ 'i I'l 318 OF TENDER AND PAYMENT INTO COURT, ARTS. 543-544. Unless the tender is conditional the party to whom it is made is entitled to receive the moneys paid in, without prejudicing his claim to the remainder. Rule of P. 4th Jan., 1854. 1 Where the defendant had with his plea tendered a certain amount and deposited the money in court, which was not accepted, and the action proceeded, and tlie plaintiff recovered a greater amount tlian that tendered, and the clerk of the court had been replaced, and the money deposited with liim was not forthcomin{» at the time of the execution of the judgment — Held, on an action to recover the money, that an action for money had and received would not lie against the former clerk of the court for money so deposited. Merizzi v. Cowan, 6 L. C. J. 62, Q. B. 1861. 2. And held, also, that the proper mode of procedure in such case was by rule upon the former clerk ordering him to pay over the money. Ibid. When an intervening party deposited an amount and consented to its withdrawal by defendant upon the release of the attachment, etc., the plaintiffs motion to obtain the monies was refused as the consent was conditional. Prive\. Dillon d; Beard, 2 L. N. 195, S. C. 1879. *i44. The expense of the tender is borne by the debtor ; but, if it is declared sufficient, the costs attending the pay- ment into court are borne by the creditor. Pothier, Ob. 550, 673, 574, 580. '11 L*-%- COMPULSORY EXECUTION OP JUDGMENTS, ART. 545. 319 CHAPTER SECOND. OF COMPULSORY EXECUTION OF JUDGMENTS. SECTION I. GENERAL PROVISIONS. *S45* The judgments of a court can only be put into exe- cution by means of a writ issuing in the name of the sover- eign and addressed to the sheriff of the district ;in which it is to be executed.] The writ is attested and signed in the same manner as original writs, it must bear the seal of the court and mast mention the date of the judgment to be executed and the day on which it is returnable. C. S. L. C. c. 88, s. 139 ; c, 85, 8. 2, § 4 ; 25 Geo. III., c. 2, s. 30; C. P. C. 545. 85 Vict. c. 6 (Que.) : "26. Whenever in any suit, a writ of execution has issuiil, and by reason thereof a demand of payment has been made upon the defendant, no other demand of payment need bo made in such suit previous to the further execution of any other such writ, whether in the same or in any other district." 1. A defendant sued under a writ of attachment for rent, cannot oppose the seiaure and sale of his immovables if he have signed a return of nulla h«na after judgment on tha attachment. Graliam v. Hurlbert d- Hurlbert, 10 R. L. 228, 8 C. R. IS^iO. 2. Execution cannot issue bofore the expiry of fifteen days from the date of the judgment. Iluot dit Duval v. Gadbois, 12 R. L. 57, S. C. 1881. 3. By article 545 a writ of attachment after judgment should be ad- dressed to the sherifi* of the district in which it is to be executed, being the district where the judgment was rendered, and not to a bailiff. Ry. land v. Delisle aud Workman, etal. 14 L. C. J. 17, S. C. 1869. 1 IT , ;' ill 44 m ' 'If ' ^ ' ! i w » wii* Wft aii, w i iw wii iT'i i r i r ii irj'wi i pp i i Mmi.^* 320 COMPULSORY EXECUTION OF JUDGMENTS, ARTS. 646-547. 54^S. Judgments can onl3' be executed upon the party against whom they are rendered. If he 'changes his civil status or dies before execution, judgment cannot be executed against him nor against his representatives, unless another judgment is obtained, declar- ing that the former may be enforced by execution against him in the one case, or his representatives or assigns in the other. But if the party dies or changes his civil status after execution has commenced, the execution continues. C. P. C. 1G8, Poth., Proc. 152. 1. A demand to make a judgment executory against the representative of a deceased defendant, and otho-s against whom it was rendcrt;d, does n')t iij^essitate the calling in of the others who are not affected by it. Detriinauville v. Tousujnant, 1 Q. L. E 52, S. C. 1874. 2. The execution of a judgment must be suspended in the event of the dcB+1 of the defendant during the seizure, and before continuing the I ings, the judgment must be made executory against the represen tatives of the defendant, 1865. Dorion v. Dagenaix et uL, 9 L. C. J. 139, B. C. a 3. Where the plaintiffs opposod a seizure for coats tm the ground that some of them had changed their status since the institution of tlie action — Held, that as the seizure was made only on the effects of two of th . plaintiffs, who had not in any way changed their status, there was no ground of opposition whatever. DeGasjpif ct al. v. Aaselin tt DeGasj)J et al., 5 R. L. 210, S. C. 1874. 4. When the sta'uif of defendant is changed after proceedings by way of execution against him have commenced, such proceedings may continue notwithstanding. Symes et vir. v. Fi-nner (fi Farmer, 27 L. C. J. 185. d. C. 1883. See Lefebre v. Turgeon, 3 L. N. 20, Q. B. 1879. " 517. If tbe judgment does not order a thing that is purely personal to tbe plaintiff, it may be executed in his name, even after his death ; but if any contestation arises upon the execution, the representatives of the deceased party mubt intervene. ' It OF EXECUTION IN REAL ACTIONS, ARTS. 547-549. 821 No. 848, Sevigny v. Bertrand d Mercier, at Montreal, 24th Sept., 1860 ; 2 Loisel, Inst. liv. vi. tit. 5, Art. 2 ; Pothier, Proc. 153. 1. The pur'- 'laser o( a judgment-claim belonging to the estate of an insolvent has a right to execute such judgment in the name of the original plaintiff, notwithstanding he has not received his discharge. Kittson v. Delisle d- UEcuyer <& Delisle v. Vaasal, 3 R. L. 69, C. C. 1371. 2. A judgment debt is legally susceptiMe of transfer, and where it has been legally transferred, the transf ree has the right to enforce the execu- tion of the judgment in the name of the judgment creditors. Bergevin v. Perdllier et vir. and Persillier ft al. v. Melodic, 9 L. C. J. 78, S. C. 1865. See Joneg v. CrJbassa, under Art. 434 ante. *1»4^. When the judgment orders the performance of some physical act, the officer charged with its execution may use the necessary force for that purpose ; observing, however, at the same time, all necessary formalities. 1 Couchot, 123. SECTIO, TT. OF EXECUTION IN REAL ACTIONS. 540. When a party condemned to surrender or restore an immoveable refuses to do so within the delay pvesoribed, the plaintiff may obtain a writ of possession to eject him and to be placed in possession. Ord. 1668, tit. 27, art. 1 ; Pothier, Proc. 148. 1. Where the posaespion of certain proiierty then in licitation was in (iispute, and a bill o{ indictment was found against the defendant at a term of the court of general session of the peace for forcible detainer, iiiid upon such indictment being found the plaintiff by petition and aSidavit sought to be put in possession of the premises — Held, that a jud;;e o..t of sessions could not grant a writ of restitution or possession, wliich could oi'ly be awardedjin sessions and in the discretion of the court. Bomell et al. v. Lluyd, Id L. C. R. 6 Q. B. 1862. See decisions under Art, 712, post. 21 F. c. c. p. 7, i t , 822 OF EXECUTION IN PERSONAL ACTIONS, ARTS. 550-552. 550. The officer intrusted with the execution of such writ must be accompanied by two witnesses, and draw up a minute of his proceedings. Ord. 1667, tit. 28, art. 2 ; Couchot, 128. SECTION III. OF EXECUTION IN PERSONAL ACTIONS. SS1» Judgments for the payment of a sum of money cannot be executed before the expiration of fifteen days from their date. Nevertheless upon an application of the plaintiff accom- panied by an affidavit establishing circumstances under which simple attachment might issue before judgment, the judge may allow execution to issue before the expiration of fifteen days, but the sale cannot take place any sooner than if the writ of execution had issued after the ordinary delay. C. S. L. C. c. 77, s. 27 ; c. 83, s. 201 ; 1 Pig. 411. 1. The sureties in appeal, against whom action is brought for costs, are not entitled to fifteen days' delay from the day of judgment. L arose et al. V. Wthon, 16 L. C. J. 29, Q. B 1873. 2. The issue of an execution for the recovery of the amount of a judg ment and costs previous to the taxation of costs is null. Audet v. Anselin i& Asselin, 15 L. C. R. 272, S. C. 1864. See ante, art. 479, No. 7. 3. The execution of a judgment rendered in appeal cannot take place before the expiration of fifteen days from the date of judgment. Duhaut V. Lacombe et al. d- Morrison, 13 L. C. J. 230, S. C. 1869. 4. Article 551 of the Code of Civil Procedure relating to the execution of judgments, applies e/ent of the judgment being reversed upon revision, together with the costs of such revision. This provision does not apply, however, to judgments rendered for wages, or salaries due for the manufacture or conveyance of rafts attached for the payment of such wages. C. S. L. C. c. 83, s. Ill, §§ 1-2. «S53» A creditor may cause to be seized in execution the moveable or immoveable property of his debtor, in the pos- session of such debtor, or moveables of his in the possession either of such creditor himself, or of third persons, if the latter do not object; if they do, the creditor must av opt a seizure by garnishment. C. S. L. C. c. 83, ss. 134, 139 ; Pothier. Proc. 153, 174, 178, 1 Couchot, 125 ; 1 Pig. 659. 1. Where the goods seized in execution were already in posseasio". .1 the plaintiff — Held, that the seizure was bad, inasmuch as the proceed- ings should have been by saitie arret. Morris ct al. v. Antrobus <£- Antrobua, 1 L. C. R. 114, 8. C. 1850. 2. Where, under an attachment to seize property in the hands of one person, the sheriff attached property in the hands of another, the attach- ment was declared null. Davis v. Beaudry, 6 L. C. J. 163 and 13 L. C. B. 18, Q. B. 3. In an action of damages for the illegal attachment of a vessel on a promissory note, the attachment having been dismissed because the note -ivas not yet due — Held, that a vessel laden and ready for sea could be attached for a civil debt unconnected with the ship. Parant et al. v. Grenier, S. R. 453, K. B. 1831. 4. A plaintiff seizing bona fide property in the possession of his debtor is not liable in damages toward a third person, owner thereof. McDonald V. Lalonde, 13 L. C. J. 331, S. C. 1869. 5. Seizure made of property in the hands of persons who have no legal title thereto, is absolutely null and void. Rivard v. Belle, 1 B. L. 571. S. C. 1866. k Vtii nun . ' i : r ?S1 I? , '.' ■■■ '■ fm 824 OF EXE( I'TION IN PERSONAL ACTIONS, ARTS. 553-654. 6. The seizure of tinil>er madn by the plaintiffs in virtue of a judg- ment had against the defemiunts was declared to be null aa, at the time, the (.pposaut was tho holder jf a cove-rcoeipt therefor. C'/ok et al. V. Kniijht ct al. & Fra,ur, 9 Q. L. R. 203. 8. C, 1888. 7. A bailiff who M/izes goods in the 'osseBsion of a third party witho'V: such party's consent, will be condi auivA to pay their value to him if he is proprietor. Flagu v. Vauyhan di DavU, 12 R. L. 401, Q. B. 1864. 554. A creditor may exercise at the same time the different means of execution which tho law allows him. He may cause the moveable property and the immoveables to be seized under the same writ, but he cannot proceed to the sale of the immoveubles until after the moveables have been discu8.sed ; saving, nevertheless, the special provisions of law concerning building-societies, ca>es of pledge, and the case mentioned in article 907; anu saving also the casps of judgment rendered for the recovery of rents con- stituted under thf Seigniorial Act of 1854, and of judgments declaring hypothecs. C. S. L. C. c. 85, s. 1 ; c. 69, s. 14 ; 1 Couchot, 125. mt^'^'H- 1. A collocation, ad long as it has not been paid, cannot bo opposed as payment, and, in tb's extU'cise of the different means of execution accorded to ihv creditor by art. 554 of the Code of Procedure, the creditor need not lake 'luy j;otice of a collocation which is not paid. Wilson V. LehU:nc a quxl. (t Doutre et al. v. Leblanc es qual. and Leblanc, 16 L. C. J. 209, S. C. R. 1872. 2. The plaintiff caused a writ of execution to issue against the im- movables of the defendant, who filed an opposition on the ground that previous to the issue of such writ, the plaintiff had attached property belonging to him in the hands of third parties, who had made default, and asked that the seizure de territ be annulled until the plaintiff had exhausted the other means which he had adopted — Held, dismissing the opposition, that the creditor could exercise every mode of seizure and execution which the law permits to enforce payment of what is due him. Lalonde v. Lalonde & Lalonde, 16 L. C. R. 395, S. C. R. 1866. 115 3. An attachment in revendication may be joined with an action for the resiliation of a deed of donation. MAhot e» qual. v. Perrin et al. 5 R. L. 696, S. C. 1874. OF EXECUTION IN PERSONAL ACTIONS, ARTS. 554-655. 825 4. TVhere a creditor of the plaintiff, before execution had iBsucd agaitiBt t' i itofendant, caused a writ of attachment in garnialiment to be served or the defendant — Held, that thin did not BUftpond the procoedinga under u exticution, and to produce that effect, the defendant muBt have deposited the amount of the judgment with interest and costs. Duvernay V. DetmuUeg, 4 L. C. R. 142, Q. B. 1851. 5. On an opposition by the defendant to the seizure and sale of his laud on the ground that he hud Huftlciont moveable property to satisfy the judgment, a return of nulla bona having been ntado before the iRsue of the writ against the land, the opposition was dismissed. Soupran v. Doudreau & Dondreau, 2 L. C. J. 290, S. C. 1858. 6. Execution havinf* issued against the goods of the defendant, the bailiff made a return of nulla bona, and a writ issued in virt'-f of which his immoveables were seized. The defendant flled an ' • tion ajin d'annuller, alleging that ho had moveable property, whic ■ecified in his opposition, and asked that the seizure of the iinn set aside — Held, that the moveable and immovealuo property diit could be seized at the same time, but the moveables mu sold, and that, when the return of the baililf set fortli that the defendant baa nu moveables, proceedings must be taken to set aside the return, before an opposition can be filed to set aside the seizure of immoveables. Paiiie V. Saiard, 11 L. C. R. 3, R. C. 18150. 7. Wliore the defendant himself told the ofl'icer charged with the execution that he had no moveables and afterwards brought opposition on the ground stated above, exactly the same decision was rendered. Ar- nold V. Campbell, 9 L. C. U. 33, Q. B 1858. 8. A seizure of moveable and immoveable property on the same day is good, there being nothing in the statute proliibiting ouch seizure. Kier- zkou-»ki V. Talon d- Talon, 7 L. C. R. 359, S. C. 1857. 555. [Seizure of moveables in execution takes place muler a writ addressed to the sheriff of the place where the defendant's moveable property is situated, ordering him to levy the amount of the debt, interest, if any is due, and the costs, both of the suit and of the execution, and such writ is made returnable on a day certain or sooner if pos- sible. If there be no moveable property to seize, the writ may be addressed either to the sheriff of the district in which judgment was rendered or to the sheriff of the district in which the defendant has his domicile.! . i i ■ K ■r'M I 1 ■ li m P' : u vl "' \'. i^" ;' f;;^/, ; n. I ; : ■ ■ « til ; 1 ^*'J 1.0 I.I *ii§2& 125 ■»p ^^ ■■■ ■u Uii 12.2 2.0 lb IL25 WU 1.6 ^ 0%. % /. ^ >* '> Hiotographic Sciences Corporation 4!^^ >;:V^ 33 WIST MAIN STRHT WftSTIR.N.Y. 14SM (7l*)S7a-4»03 '^ F«>. Article 600 {b hereby amended by insertinK after the word "Judge " thoreiu, the words "or in his absence the prothonotary," The said article so amended shall apply to all cases in the Circuit Court, and, in such cases, the clerk of the said court shall have the power hereinabove given, instead of the prothonotary. 1. Under an attachment in rovendicution where the defendant refused to open his doors — Held, that upon the return of the bailiff to that effect the judge may order, on petition of plaintiff, that the doors be o^iened by all necessary means in the presence of two witnesses and with such force as may bo required. Mnreau v. Matliewnon et nl., 12 L. C. J. 286, C. C. 1H68. 2. On the return of a bailiff to a writ of execution that the defendant who was outside of his house, while his family were inside, refused to open the doors uiion being called upon to do so, saying that he would not, this was held to amount to a refusal to do so, but the return was insuffi- cient without further evidence to justify the issuing of a rule for contrainte par corpn. Kemp v. Kemp, 2 L. C. J. 279, 280, 8. C. 1868. 3. And on another hearing — Held, that it did not amount to a rebelUon i) jmtice. Ihid. 4. But held, later, that a rule for contrainte par corp* may issue against a debtor refusing to open his doors to the sheriff charged with an exe- cution against him. Mannue v. Crebaam, 8 L. C. J. 122, S. C. 1864. DesharnoU v. Amiot, 4 L. C. R. 43, C. C. 1858. 6. Where a defendant against whose goods an execution had issued, carried off Bom<) of them while the bailiff was in the act of entering them in his procis verbal, and used violence towards that officer while so removing them, it was held that he could not be condemned as in con- tempt of court, but only to costs, and the bailiff was ordered to proceed anew to the seizure and Hale of the effects. Terronx v. Dupont. 10 L. C. J. 143, 8. C. 18««. 570. If the debtor has no domicile in the Province, the triplicate of the inventory of seizure is left for him at the office of the prothonotary of the court. C. P. C. 602 ; C. S. L. C. c. 83, 8. 64. 22 F. c. c. p. i^:lr:[ 3 s- ■;:::! '-] R1 m%\ci'y\fj. 838 OF SEIZURE OF MOVEABLES, ARTS. 570-572. 85 Vict. c. 6 (Que.): 16. Article 670 is amended by inserting therein immediately after the word " Province " the words, " Or has ceased to reside within the district in which the judgment was rendered." 571« Immediate notice must be given to the debtor, and to the guardian or depositary, of the place and time at which the moveables will be offered for sale. Pothier, Proc. 168. 3^ Vict. c. 6 (Q"-.) : 17. "If the debtor ii no domicile in the province or has ceased to reside within the district in which the judgment was rendered, the notice may be left for him at the office of the prothonotary of the court," 1. Held, that a notice at the foot of the prods-verbal that the sale would take place on such a day of the month, without mentioning the year, would annul the seizure, although tlie prods-i'erhal was fully and cor- rectly dated. BeauprJv. Martel tO Martel, 2 L. C. J. 276, S. C. 1858. 2. A sale of goods under execution de bonis may be validly made on the day fixed for the return of tlie writ into the court. Elliott v. St. Julien es qual. H; St. Julien, 18 L. C. J. 11, S. C. 1874. 3. Where the last of the eight days required for the publication of the notices of sale falls on a Sunday or holiday, such day will be counted. Denis v. Denis, 8 L. N. 82, C. C. 1885. i. Notices of sale and advertisements which give a wrong street num- ber tc the place where the sale is to be held, are irregular and may be set aside by an opposition to annul. The effect of such opposition will be to force the plaintiff to renew his notices, without entailing the nullity of the seizure. Dorion v. Diette tt Diette, M. L. R. 1, S. C. 31 ; 7 L. N. 266 ; S. C. 1884. 572. Saving the exception contained in the following article, the sale of moveables must be published by posting and reading a notice, in a loud and distinct manner, at the door of the church of the place where the seizure has been made, immediately after morning service on the Sunday next after the seizure ; and if such seizure was not made within a parish, the publication must be made at some public place in the municipality, and the sale cannot take place before the expiration of eight days, reckoning from OF SEIZURE OF MOVEABLES, ARTS. 572-574. 839 the day of such publication, and a certificate of such publi- cation must be annexed to the record of the execution. See 41 Vict. cap. 9 (Que.) under art. 1320 post, as to the sale of moveables belonging to successions of which some of the co-heirs are minors. 573* In the cities of Quebec and Montreal, the sale of moveables seized is advertized only by a notice, stating summarily the names of the parties, the nature of the effects and the time and place of the sale, inserted in ■ French in a newspaper published in that language, and in English in a newspaper published in the English language ; and 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 ; and a duplicate of such notice must be posted in the sheriff's office from the time of such advertisement in a newspaper until the day of the sale, which cannot take place until after the expiration of eight days from the day of such publication. No more than two dollars is allowed for the cost of such advertisement. 27-28 V. c. 39, ss. 9, 10, 11. 48 Vict. c. 20, (Que.) : Article 573 of the said code is amended by taking out the word "and " in the first line and the adding after the word " Montreal " in the same line the words " and of Three Rivers and in the town of Sorel." 1, A writ of vend. ex. war made returnable on the 28tli April, 1870, and the newspaper in which the notice of sale was being published ceased to issue, and the date of the return was changed in consequence. ,H«/rf, that neither in law nor in fact did these circumstances afford ground for an inscription en faux, although irregularities were committed which were reprehensible. Buchemuiy et al. v. Vienne d- Vieiine, 16 L. C. J. 138, S. C. R. 1871. 574. [Seizures in execution can only be made between the hours of seven in the morning and seven in the even- ing, except in cases of fraudulent removal, and may if necessary be continued on following days, affixing seals or placing guards.] ■■■'■ ^-Mr il-M,, '! . ■ I a/. !''•( - I - .'t • ' 'M. ./ i 340 OF BBIZUBE OF MOVEABLES, ARTS. 575-579. 57S. Seizures cannot be made on Sundays or holidays, except in cases of fraud '.lent removal, where the property is found upon the highway. Fothier, Proc. 156. 576* If the property has been attached before judgment, it is not necessary to proceed to a verification, but it is suffi- cient to give notice to the debtor and guardian or depositary of the place and time of sale, as prescribed in article 571, and to give the notice required by article 572 or 578, as the case may be. 1 L. C. B. 279. 577* [If the moveables have already been seized and the debtor dispossessed, any creditor making a second seiz- ure is bound to name the same guardian, who can only be discharged by the sale of the property so seized, the consent of all the seizing parties, or the order of a judge.] Pothier, Proc. 166-7 ; 1 L. C. R. 94. 1. When the effects seized have been sold under another execution, the guardian is not liable to imprisonment on his failure to produce. Blackiston v. Patton d- Patton, 5 L. C. J. 56, S. C. 1851. See Berry v. Cowan et al., 11 L. C. B. 476, S. G. 1851. S7H. The party first seizing, who does not proceed with proper diligence, cannot prevent the sale by the next seizing creditor. [If, when there is no opposition, the seizing party does not bring the moveable to sale within the delay fixed for the return of the writ, the seizure lapses, unless the delay for the return of the writ is extended by order of a judge to a certain subsequent day, which order the prothonotary must make a note of in the entry book of executions.] Sy79, A creditor who has made a seizure of the effects of his debtor cannot obtain a second writ of execution, unless the previous writ has been returned or accounted for. Pothier, Proc. 167. 3ee 35 Vict. c. 6, s. 26 (Que.), supra under Art. 545. M OF OPPOSITION TO THE SEIZURE, ABT8. 580-581. 341 §2. Of opponi' s to the seizure of vioveahles. 580. A seizure of moveables in execution may be con- tested by opposition, either by the debtor himself, or by third parties. Pothier, Proc. 163 et seq. 1. The opposant moved to amend his opposition by altering a number on the endorsation, and the plaintiff moved to reject the opposition, it having been filed under a wrong number — Held, that the former motion must be dismissed and the latter granted with costs. Joseph v. Cay et Cay, 1 L. C. J. 2, S. C. 1856. 2. An unfounded opposition is a contempt of court, for which attach- ment may be granted. Quirouet v. Wilson, 3 Rev. de L6g. 472, K. B. 1818 ; Hunt V. Perrault, 3 Rev. de L6g. 475, K B. 1820 ; Thomas v. Pepin <& Pepin, 5 L C. J. 76, S. C. 1861. 5S1. The debtor may demand the nullity of a seizure of moveables in execution : 1. On the ground of informalities in the seizure, or of the exemption of some of the articles seized, under articles 556, 557 and 558 ; 2. On the ground of the extinction of the debt ; 3. For any reason of a nature to affect the judgment sought to be executed. If a part only of the debt is extinguished, the opposition has the effect of preventing the sale for more than is due. Ibid. 1. An overcharge of ten cents made by mistake in a writ of execution is not a ground of nullity. Opposition dismissed. CotJ v. Samson A' Beaudoin et al., 12 R, L., 112; 5 L. N. 421 ; Q. B. 1882. 2. Where the plaintiff omitted to give credit for moneys received on account, it was held that an opposition might be filed by defendant to prevent the sale for more than what wa;^ due. Martin v. Labelle, 7 L. N. 174, S. C. 1884. 3. The fact that partial payments have been made upon a judgment does not justify the concliiaior s of an opposition by the debtor demanding the total nullity of the seizure. Grange et al. v. McDonald <& McDonald, 15 L. C. J. 252, S. C. R. 1871. mp-^ !.l !■ : ;■?!.; f'.i , ■ mt mm'i mmm rtj 842 OF OPPOSITION TO THE 8BIZUBE, ABT8. 581-682. Bat the opposition must be maintained in proportion to the amount paid. Ibid. Thihault v. Fontaine, 7 Q. L. B. 820, B. C. 1881. 4. A defendant has the right to oppose the sale of his effects in oonse- quenoe of an error in the notice at the foot of the procis-verbal, though the error does not necessarily involve the nullity of the seizure. Manteau v. Bernard <& Bernard, 2 B. L. 242, S. C. 1870. See ante Art. 555. 5S2. The execution may also be opposed by any party who has a right of ownership or of pledge in the property seized. A lessor cannot, however, oppose the seizure and sale of the moveables subject to his claim, and he can only exercise his privilege upon the proceeds of the sale. C. S. L. C, c. 83, s. 146. %^'. 1. Where daring the contestation of an opposition to a seizure and sale of moveables, the effects were seized a second time under another writ, and the guardian under the first writ opposed the sale under the second, which the plaintiff contested, the opposition of the guardian was dis- missed as unfounded. Donnelly v. Nagle db McDonald, 3 L, G. J. 135, 8. C. 1858. 2. A guardian of effects seized has a right to file an opposition to a second seizure of the same effects. Smith v. O'Farrel i& Colburn, L. C. B. 495, S. C. 1859. 3. The guardian of a seizure of moveables can oppose a second seizure of the same effects, so long as the first seizure has not been disposed of. Langlois v. Oauvreau et al. <£• Gauvreau, 12 L. C. B. 158, 8. C. 1862. 4. Where the defendant was made guardian over his own goods under seizure, and they were sold out of his possession by another seizure — Held, that although he might have opposed the sale under the second seizure, he was nevertheless not bound to do so. Shelton v. Kerns et a I. (6 Holland, i L. C. J. 139, S. C. 1863. 5. But a guardian might be bound to do so. Warren v. Dowjlas <0 Smith, 7 L. C. J. 140, C. C. 1863. 6. If a landlord omits to file an opposition to the sale of the tumiture liable for his rent he may file an opposition afin de conserver on the proceeds, and will thereon rank according to his privilege. lioss v. Mamon, 3 Eev. de L6g. 474, K. B. 1812. OF OPPOHITION TO THE SEIZURE, ARTS. 582-588. 843 7. When the constituent parts of an engine fixed in a building forms part of the fond», and the whole ip used as a steam mill, and such engine is seized as moveable property, a hypothecary creditor even with a privi- lege of hailUur de J'onds on the foiida whereon they are, has no right to claim the same under Art. 582, by opposition to withdraw simply as his property, or as having a right of pledge thereon, there being no ownership or pledge in such case. Philion v. Bisson <& Oraham, 9 B. L. 617, 23 L. C. J. 32, S. C. 1878. 9S3. Oppositions to the seizure and sale of moveables must contain an election of domicile by the opposant, and they stay proceedings, provided they are accompanied with an affidavit that the allegations contained in them are true, and that they are made not with the intent of unjustly re- tarding the sale, but with the sole view of obtaining justice. 80th and 87th Kule of P. 1. An opposition which is frivolous on its face will be rejected on motion. Bonnin v. Cdtl 8 L. N. 70, C.C, 1885. 2. An opposition to annul by the defendant which on its face is irregular, and appears to be frivolous, may be rejected on a motion to that effect. Felton V. BJlanger et al., 27 L. C. J. 79, Q. B. 1882. La Banque Jacques 8. An opposition will not be rejected on motion. Carder v. Neveux, 7 L. N. 338, S. C. 1884. 4. The suspension of proceedings on an execution during a period of more than two months in order to allow defendant to pay the debt by in- stalments does not cause the writ to lapse. Dionne v. Bonami <& Bonavii, 8 L. N. 69, C. C. 1884-85. 5. But the seizure itself lapses, Deitault et vir v. Pratt, 7 L. N. 415, C. C. 1884. 0. An opposition containing unauthenticated marginal notes and era- sures will be dismissed on motion. Dalton v. Doran d- Doran, 8 R. L. 371, 1 Legal News 220, S. C. 1877. 7. If an opposition does not contain an election of domicile it will be dismissed. Lizatte v. Caron, 3 Rev. de Leg. 472, K. B.; Vallieres v. liohi- tiiillc, 3 Rev. de Leg. 476, K. B. 1821. 8. An opposition maenditioni exponas, on the ground that an error existed in a rule for folle enchhre granted against the opposant under the writ, and the plaintiff was allowed to amend the rule — Held, that after the amendment there was no longer any reason for the opposition, and it would be dismissed and without costs. The TruKt and Loan Company of Upper Canada v. Doyle and Stanley, 3 L. C. .1. 138, 8. C. 1859. 3. Where a guardian has opposed a sale under a second seizure the right to make such second seizure cannot be contested by a motion, but ought to be tried on a law pleading. Warren v. Douglas & Smith, 7 L. C. J. 140, C. C. 1863. 4. Where an opposant has been collocated and the collocation was contested and a question arose us to costs — Held, that the opposant must be considered as plaintitT, and the contestant as defendant, in order to determine the amount of coats due to each party. Doutre v. Gosselin it (iabouriault, 7 L. C. J. 290, S. C. 1863. 5. The opposant in an opposition ajhi de comerver occupies the position of a plaintiff and the contestant that of u defendant. ISeaudry v. Desjar- ilins ring him to appear and show cause why he should not be declared in contempt of court, and condemned to be imprisoned until he 'Ml ' 'i i.- '^ 1 ' , I . I > ■1' -,'1 '' ; 'I l' ■>?' II ■ ' ■ I'll' m'i^t^i m t !^im illffiflr...,. 850 SALE OF MOVEABLES UNDKR EXECUTION, AIIT. 697. paid the debt, for iie)/luotin({ to make hit return to the writ — Hfld, that aa he could not be held rcHpoiisible for more than the value of the effect! seized, the court could not ^riint a rule, hut would order the builifT to make hiu return within f<>rty-ei|{ht hours nftor the sorvioe of the ordvr. Holland v. Iteiini-r lO I.tifinitaine, 7 L. C. J. 48, C. C. 1803. 2. A guardian will bo diHchart^od when a yoar hiVH elapHod since hit) apiiointnient. IMI.t v. Ihilhi, r> Q. L. R., C. C. 1870. lieaudry v. Drmtn, 8L. N. 413. 8. The f{uardiiin may be condomncd to produce the property or pay the debt and cohIh, hut he cannot bo condemned to pay more than Ih duo by the defendant to the Hoizinx creditor. McCtitfry v. Cliutuii, 8 L. N. 292, 25 L. C. J, 1!>1, Q. B. 1880. 4. It iH not necoHHttry in a rule for contraiule to ^ivo the guardian the option of paying' the value of the noods. The guardian itt not diHchaij^ed by the lapno of a year after i)n)coediiii^!^ taken a>,'ment ordering him to deliver up the floods, they have been seized in hi» hands under a writ of attachment. Buch attachment was hold to bo valid. Meirhiuiln" Hank v. The Montreal, Portland i{' I3onton Uif. tt Iniiram, L. N. 2211, S. C. K. 1883. 7. But where the del'endant became the puarditMi of the effects seized at the instance of the plaintiff under a writ of attachment, and subse- (juently the same effects were seized and sold under a writ of execution, and the plaintiff brought action against th(! defendant, praying that he bcj held to produce the effects or pay the value thereof —//<•/(/, that ho had no such action, that his only remedy was by process of attachment aiu'ainst the guardian. Jiernj v. Coican et al., 11 L. C. II. 476, 8. C. 1861. 8. A guardian under an execution, w'lore the effects seized have been sold under ai,. ther execution, is not liable to imprisoimiont on his failure to produce. Blackiston v. Patton (C- Patton, 5 L, C. J. 56, S. C. 1851. {}. But whore a guardian simply fails to produce the goods entrusted to him, without showing any such reason therefor, ho may be imprisoned until he do so, or pay the value of them. Ouimet v. McCallum «t Ch.''l\ 1 L. C. J. 1.58, S. C. 1857. 10. And where ths. defendant had become voluntary guardian of the things seized — Held in appeal from a judgment ordering a rule against BALE OF MOVKABLES UNDER KXEOUTION, ART. 607. 8S1 him for refuMl to produce, that he was liable to eontrainte par eorpn. Brooki V. M'hiliiey, 4 L. C. J. a7!», 10 L. C. 11 244, Q. 11 IH«0. Contra : I'attoille V. Uuilmette, 1 R. L. 61. 11. A judt{e in ChamborH may order any hwiliff to taitc away from the poiieaaion of a third party objectn Hci/ml uh bLiii({tlio defoiuliiiit's, and which the defendant and Kuardian have ii> ({lectod to j . nduce on t))u day fixed for the Halu. Huoh ordor may be Ktvi ii without any prior notice. The bailiff should prepare a minute of Iuh procuuilin^H under the ut'd#r, and leave copien thereof with the third party, witli a notice to appear within a short delay, to be condemned personally to costHof the petition, removal and care of the offuctn until the Bale, if any. Ctintwilt v. Madden ,i- Warren, '\ U. 'j. (VM ; '23 L. C. .J. 77 ; '2 L. N. AH, S. C. 1870. 12. Whuv\( "attlo and hay wore seized to^cthor under the same writ, tilt! ;4uardiiin ha-, a ri({lit to feud the cattle witli the hay although it he iiftorwan? 1 proved that the cattiu did not bolon^ to the defendant. John*' >ii V. IlaUomn, IS L. C. J. '221 ; Q. B. 187.1. • IH. Hi Id, on a motion for n rule of contrninte par corpn ajjainst the Hherit'f, iliat ho was the (.'uardian of the ^oodn when the defendant offered none, and, as Huch was liable therefor, and on a rule tot contrainte 2>ar corpt it was not nooeBsary to offer any alternative on default of producing the moveables Hoi/ed. Lei'emun et ul. v. liotton, 2 L. C. J. '21(7, Q. B. 1858. 14. And whore the guardian, by way of answer to such rule, pleads that the proi)erty was only worth so much, it becomes the duty of the court avantj'aire droit, to order proof of the fact. Ibid. 15. The voluntary guardian is liable to contrainti' par corpn, though from motives of equity, when the value of the thing's is Icqb than the debt, the courts have restricted the liability of the guardian to ouch value, and proof of Buch value rests on him. Jlijuiins et al, v. liohillard, V2 L. C. R. 3 Q. B. 18()1. 16. A guardian is not bound to deliver up the effects placed in his custody to any but the person by whom he has been appointed. Frechette V. St. Laurent, U L. C. R. 20, C. C. 17. The guardian cannot refuse to deliver up the effects seized and thereby prevent the sale until his expenses have been paid. Kelt- v. D'awour A Therien, 12 !'*. L. 418, C. C. 1883. See also Darocher v. Saruult lO Leclaire, 7 I.. N. 96, l02, C. C. 1884. 18. A guardian is not liable to imprisonment for having failed to pro- duce the effects when he received no notice of the day, hour and place when and where the sale was to beheld McManamy et al., v. Ihiactaird; Brimn, 10 Q. L. B. i*i, ^. C. R. 1884. ' f w 1 1 i f; it r ' '^pM 1 t 8 \ ' ft' ' f :-, 1 IP ' i , ■'i ' ■ I f It ''^ 'M ^ i ( , H II' m m 'il 352 SALE OF MOVEABLES UNDER EXECUTION, ARTS. 597-600. 19. In a case iu which the guardian had ignorantly signed a procia verbal^ whereby he undertook, in default of producing the goods, to pay to the plaintiff his debt, interest nnd costs — Held, to he signed by error, and that the bailifF seizing had no power to insert such a stipulation in the procin verbal. Dupuis v. Bell, 15 L. C. R. 435, S. C. 1865. 20. A guardian who refuses to deliver up the goods seized by a bailiff under a writ of vemUtioni exponas, cannot be imprisoned before he has been condemned by the court to give them up within a delay fixed, or before the order of the court has been served upon him. Exp. Qauvreaxt V. Lougobardi, 3 Q. L. R. 195, C. C. 1877. See Art. 590, ante. SO^* The adjudication of moveable property under exe- cution transfers, by law, the ownership of the things thus adjudped. In the case o^' seizures of shares in any financial, com- mercial or industrial company or association, duly incorpo- rated, the sheriff is bound within ten days after the sale, to serve such company' or association, in the manner men- tioned in article 567, with a certified copy of the writ of execution, endorsing thereon a certificate designating the person to whom he adjudged the shares seized, and such purchaser thereupon becomes a shareholder in the company and has all the rights and obligations of one, and may re- quire an entry to be made to that effect, in the manner prescribed by law, by the officer appointed for that purpose by the company. C. S. L. C. c. 70, ss. 2, 3, 4 ; 8 L. C. J. 122. 30tl. No demand for the annulling or rescinding of a sale of moveables under execution can b? received against a purchaser who has paid the price, saving the case of fraud or collusion, and without prejudice to the recourse of the party aggrieved against the seizing creditor and those acting in his behalf. Ouimet v. S^necal, 3 L. C. J. 35 ; Gen. 457. ttOO. [Immediately after the sale, the costs thereof, in- cluding the pay of the appointed guardian, must be taxed DISTRIBUTION OF MONEYS LEVI£D, ARTS. 600-601. 353 by a judge or by the protbonotary, subject in the latter case to revision, if required.] Pothier, Proc. 169. 1. A voluntary guardian is not entitled to any fees, Miller v. Bourgeois .fc Holland, 17 L. C. J. 168, S. C. 1873 ; Whitehead v. Dubeau, 10 Q. L. R. 162, S. C. 1884. 2. The defendant is not liable for the guardian's fees. Dooly v. Ryerson, 1 Q. L. R. 219, S. C. 1875 ; Dansereau v. Girard, 16 L. C. R. 380, C. C- 1866. 3. A voluntary judicial guardian who has become a necessary guardian by force of circumstances, and has been obliged to remove the goods seized under his immediate care, has a right to an opposition afin de con- server for the payment of his costs on the proceeds of his sale, and to be paid according to proof made of such costs. Boucher et vir. v. Brault et at. (6 Grenier, 4 R. L. 237, S. C. 1872. 4. The costs to be paid under a judgment ordering the payment by plaintiff of the costs of a former action, as a condition precedent to proceeding with a new suit, are the taxed costs, and a guardian's fees not being by law claimable from defendant, cannot be included in such costs. Dooly V. Ryerson, 1 Q. L. R. 219, C. C. 1875. 5. Neither the attorney nor the bailiff is personally liable to the guardian who has been appointed and has voluntarily accepted the charge, for the costs of his guardianship. Plante v. Cazeaii d; Cazeau v. Langois et al., 1 Q. L. R. 203, S. C. 1875. 6. The bailiff was held liable in CourchSne v. Getiereux, 1 R. L. 433, C. C.1865. § 4. Of the payment and distribution of the moneys levied. OOl. The moneys seized or levied, after deducting the duties thereon and taxed costs, may be paid by the sheriff to the seizing creditor, if no opposition for payment has been placed in his hands ; otherwise he must return them into court, to await such judgment as to right shall apper- tain. Ihid.y 170 ; C. S. L. C. c. 83, s. 146, § 2. 48 Vict., c. 20, (Que.) : 10. Article GOl of the said code is amended by adding after the word "sheriff " the words : " or bailiff four days after the sale." 23 F. C. C. P. MbL ■ i^ mm h... i^ .(■)■ 1 854 DISTRIBUTION OF MONEYS LEVIED, ARTS. 601-604. 1. Where the lessor had got judgment by saisie gagerie and execution issued, but before the day of sale the money was paid and deposited in court, and another creditor by opposition claimed a dividend on the money paid in on the ground that there was no privilege on money paid in that manner, but only on the proceeds of the sale — Held, that the opposition must be dismissed on the ground that the money paid represented the goods which had been seized, and which were the lessor's pledge for his rent. Wilson v. Spencer d- Smith, 3 R. L. 456, 8. C. 1828. 2. Money paid by defendant to the seizing of&cer to prevent a sale of his effects is money levied, and must be returned into the court where an opposition is filed. Martin v. Labelle, 5 L. N. 174, S. G. 1884. 602* When the moneys levied have been returned into court, the plaintiff has a right to be paid in preference to all other chirographic creditors ; saving the right of a prior seizing party for his costs, the case of the insolvency of the debtor, and the case of privileged claims. Pothier, Proc. 174. 603. When the moneys are returned into court, as well as in all other cases where moneys of which an account has been rendered into court or moneys other than the proceeds of immoveables are to be distributed, and insolvency of the debtor is alleged, the distribution of the moneys cannot take place until his creditors generally have been called in. The creditors are called in upon the order of the court or a judge, published twice in the French and English languages in the Canada Gazette* requiring them to file their claims within fifteen days from the date of the first insertion. 23 Vict. c. 67, s. 62; C. S. L. C. c. 83, s. 147, §§ 3-4. 604. The claims may be made out in a summary manner, and it is sufficient for them to state the names, occupation and residence of the claimant, and the nature and amount of his claim. They must be accompanied with vouchors, if there are any, or, if not, with an affidavit that the sum claimed is lawfully due. Ibid. * Now " The Quebec Official Gazette," 31 Vict. cap. IH, s. 4 (Que.). DIBTRIBCTIONf OF MONEYS LEVIED, ABTS. 605-606. 855 005« The moneys are distributed according to the order prescribed in the title Of Privileges and Hypothecs, and the title Of Merchant Shipping in the Civil Code, and in the provisions hereinafter contained. 1. A particular pledge given by a debtor to his creditor as security for the debt does not deprive the latter of his privilege on the other move- ables of the debtor, if he have any. Terroux v. Gareau et al., 10 L. G. J. 203, C. C. 1866. 606. The following order is observed as regards the col- location of judicial costs : 1. Costs of seizure and of sale ; 2. The duty payable upon moneys levied or paid into court ; 3. The fees of the officer receiving moneys levied or paid in; 4. The fees upon the report of distribution ; 6. The fees of the attorney prosecuting the distribution ; 6. Costs, subsequent to judgment, incurred in order to effect the seizure and sale, and according to the priority of (late or of privilege when there are several seizing credi- tors ; The costs of a prior seizing party have a preference over those of a subsequent one. Nevertheless, if two or more writs of execution issue upon judgments rendered on the same day against the same debtor, the costs thereon are paid concurrently. 7. Costs of affixing seals, or of inventories, when ordered by the court. [The plaintiff is next paid his costs of suit, taxed as in an uncontested case not inscribed for proof .] 33 Vict. c. 17, (Que.): 2. Paragraph eight of article 606, of the said code, is amended by strik- ing out all the words thereof after the words, " costs of suit." 1. The sheriff is entitled to poundage whether he receives the money or a bond is given in the manner provided by the Court. Blake et al, v. Fanet etal., 12 L. C. R. 189, S. C. 1862. m m 1 i J ^wt m 1 ip' H #f IP-'' 'MM m tiiv.pr': mm mm 1 ! 1 356 DISTRIBUTION OF MONEYS LEVIED, ARTS. 606-610. 2. The party suing oat an exeoation, whether he is plainti£f or defen- dant, is entitled to be collocated by privilege out of the proceeds of the immoveable sold, not only for the costs of the execution, but also for the costs incurred on the judgment on which the execution issued. Tan»ey v. Bethune et al., 3 Q. B. B. 333 ; M. L. B. 1 Q. B. 28 ; 7 L. N. 133 ; Q. B. 1884. 607* The Grown has a preference over all other creditors upon the proceeds of executions against moveable property which, under particular statutes, is subject to any of the following duties : Customs dues ; Excise duties ; Duties imposed upon timber cut ; Tolls ; Inspection dues, on vessels, railways, or others similar. C. S. C. c. 17, ss. 10, 11, 14, 41, §§ 3, 80, 84; c. 19, ss. 8, 10, 23, 24, § 2 c. 23, ss. 1, 3, 4, 8 ; C. N. 2098. 60S. The owner of a thing, who has lent, leased or pledged it, and who has not prevented its sale, has a right to be paid the proceeds of its sale, after the claims men- tioned in articles 1995 and 1996 in the Civil Code, and the privileged rights of the Crown mentioned in the preceding article, and the claim of the lessor have been collocated. Pothier, Proc. 173. 609. The same rule applies to the owner of a thing which has been stolen, who would not have lost his right to revendicate it had it not been judicially sold. 610. Persons who have preserved the right of being collocated upon the price of the thing sold, by reason of a right of pledge or of retention which they had upon such thing, rank according to the nature of the pledge or of their claim. The following is the order amongst them : Carriers ; Hotel-keepers ; OF SEIZURE BY OABNIBHMEMT, ARTS. 610-612. 857 Mandataries and consignees ; Borrowers, in loan for use ; Depositaries ; Pledgees ; Workmen, upon things repaired by them ; Purchasers, against whom the right of redemption is exorcised, for the reimbursement of the price and the moneys laid out upon the property. Pothier, Proc. 343 ; Dep. 74 ; Vente, 323, 326 ; Pr6t. k us. 43, Charte-Partie, 90, Proc. 192; Paris 181-2; Ferr. sur. I'art. 181, no. 1, 2; 2 Grenier, Hyp. 298; 18 Dur. 609 ; Tropl. Nant. 100 ; C. S. C. c. 20, s. 90, § 3, s. 91 ; Den. Actes de Not. 108-9 ; C. N. 2102, 611* In the absence of any special privilege, the Crown has a preference over chirographic creditors for sums due to it by the defendant. SECTION IV. OF SEIZURE BY QARNISHMENT. !:■.,?: 613* Execution upon the moveable effects of a debtor, which are in the possession of a third party, may, in all cases, and must, when such third party does not consent to their immediate seizure, be effected by means of seizure by garnishment. The same means must be adopted in executing upon debts due to the debtor other than those mentioned in arti- cle 565. Pothier, Proc. 156, 174, 180, 182 ; Gen. 472 ; Pig. 645-6, 663 ; C. P. C. 657-8; 1 L. C. K. 114. 1 i'i> I ., I,! 1. An attachment in the hands of a third party is valid without the consent of such third party, his failure to object being sulf.cient. Bros- sard V. Tilson et al., 18 L. C. J. 64, Q. B. 1874. 2. An attachment by garnishment will lie against a curator to an inter- dict under a judgment rendered against the interdict and the curator as such. Cn'bassa v. Fourquin et al., 3 R. L. 57, S. C. 1S71. 1 I ' 1 358 OF SEIZURE BY OARNISHMENT, ARTS. 612-618. 8. But where a mother had been appointed tutrix to her minor chil- dren, and afterwards renounced the community, and she was called upon personally by means of a writ of saisie arrH to declare what money she had belonging to said minor children or owed in her personal capacity to them — Held, that the amount of indebtedness, if any, of the tiers saisi in her quality of tutrix to her minor children could not be enquired into by means of an attachment by garnishment but must be settled by direct action. Dorian v. Dntmmond es qual. (& Dumont v, Dorian, 3 R. L. 60. Q. B. 1871. 4. Where the plaintiff caused a quantity of timber to b j attached in the bands of a third party who was not responsible for the debt, but as a means of securing him (the plaintiff) — Held, on an appeal, that such an attachment, whereby any other person than the defendant was divested of the possession of property would not lie. Wood v. Gates et a/., S. R. 536, K. B. 1833. 6. The sheriff under a writ of attachment by garnishment seized a quantity of railroad iron corporeally in the hands of a third party — Held, th' t such a proceeding was entirely illegal, and the seizui*e under such circumstances was a nullity. Fleck v. Starnes et al., 7 L. C. J. 256, S. C. 1863. 613* Seizure bv garnishment is made by means of a writ issuing from the court which rendered the judgment, ordering the garnishees not to dispossess themselves of the moveable effects belonging to the debtor which are in their possession, nor of such moneys or other things as they owe him or will have to pay him, until the court has pro- nounced upon the matter ; and to appear on a day fixetl , to declare under oath what effects they have belonging to the debtor, and what sums of money or other things they owe him or will have to pay him. Pothier, Proc. 176. 1. A iustice of the peace has no authority to issue a writ of attachment after judgment. The Corporation of the Parish of St. Philij)fe, Exp., 6 L. C. R. 484, S. C. 1856. 2. The defendant cannot plead that the garnishee was improperly served. Molson's Bank v. Lionais, 2 Q. B. R. 176, Q. B. 1881. 3. Where an employer has contracted with his workman to pay him his wages in advance, a seizure made at 2 p. m. on the day on which the wages are due under the agreement is inoperative. Geddes v. Dotidiet it Doudiet, 5 L. N. 153, S. C. 1882. OF SEIZURE BY GARNISHMENT, ARTS. 613-614. 859 4. Where defendant was appointed guardian of the effects seized, and left the country, the effects passing into the hands of one Warren, plain- tiff petitioned for an order authorizing any bailiff to remove them from Warren's possession, and for the use of necessary force, and asked that Warren be summoned to show cause why he should not be held for the costs of the petition and the removal, which was granted. Cantwell v. Madden, 2 L, N. 38, 9 R. L. 633, 23 L. C. J. 77, S. C. 1879. See Art. 509, ante. 5. On an exception to the form of an attachment after judgment — Held, that such attachment could not be issued to take effect in Upper Canada. Mackenzie et al. v. Douglas <& Brown et al, 5 L. C. J. 329, S. C. 1861. 6. Wages not due at the time of the service of the writ could not be attached. Malo v. Adhemar d- La Banque du Peuple, 1 L. C. J. 270, 0. C 1851. Sternberg et al. v. Dresser lO Kvans, 4 L. C. J. 120, 8. C. 1859. Wurtele et al. v. Douglas di Th Mayor, etc., 14 L. C. J. 17, 8. C. 1869. 7. On appeal from a judgment on a writ of attachment — Held, that an attachment under tlie Ordonnance of 1787, could be set aside, if it bo not, in the language of the law, against the estate, debts and effects of the defendant to be attached in the liands of some person in particular, and do not contain a summons to him as well as to the defendant to appear, and if it be not accompanied by an injunction from the judge to the sheriff to retain the effects seized to abide the judgment of the court, and if it appear in the declaration that the debt sworn to have been cancelled. Richardson v. Molson et al., S. R. 376, K. B. 1829. «14. This writ also summons the debtor to show cause why the seizure should not be declared valid, and mentions the date and amount of the judgment in satisfaction of which it is issued, and is moreover clothed with the for- malities of ordinury writs of summons. Pothier, Proc. 176 ; C. P. C. 559, 563. 1. In every case of saisie arrH the defendant must be summoned, and of the defendant, in an action against him and the tiers saisi be not summoned, no proceeding car. be had against the tiers saisi, not even if he neglect to appear. Prior v. Dalaniar d; Heath, 3 Rev. do Log. 306, K. B. 1816, 2. Where the defendant had left the Province after action brought and had no domicile therein and attachment issued — Held, to be unnecessary to serve him with a copy of the writ of attachment, the writ being in such case a proceeding in the nature of an execution. Mettayer et al. v McGarvey d> Mettayer et al., 6 L. C. R. 148, 8. C. 1856. % m ■m U-' H' "■ :ffiv ■ m. 860 OF SEIZURE BY OARNIBHMENT, ARTS. 614-615. 8. Where in a case of attaohment after juugment the defendant was found to be absent — Held, that servioe apon him was unneoeBsary. Jonen V. Saumur d Leroux, 8 L. 0. J. 60, S. G. 1857. 4. And in another oaae where the defendant had left the district of Montreal ainoe the service of the original process— /feld, that a service of a writ of attachment after judgment made on a clerk in the office of the clerk of the Circuit Court was valid. Kearney v. McHah panied with a bailiffs return, certifying that previous notice of at least twenty-four hours has been given to the plaintiff of the garnishee's intention to make his declara- tion before the return of the writ. Ibid. s. 138 § 2. 1. Where the garnishee makes his declaration before the return day mentioned in the writ, a bailiff's certificate must bo produced showing that notice has been given to the plaintiff or his attorney, at least twenty- four hours previously, that he intended to make his dec. -ition before the return of the writ, and a declaration made without such i itice will be rejected on motion. Versailles v. liailey <£• Kershaiv et at., 6 Jj, C. J. 315, S. C. 1804. GIO. The garnishee must declare in what he was in- debted at the time of the service of the writ upon i Im. in what he has become indebted since that time, tlie cause of debt, and any other seizures made in his hands. If the debt is not yet payable, he must declare when it will be. If his indebtedness is conditional or suspended by any hindrance, he must also declare it. He must furnish a detailed list of the moveable effects in his possession belonging to the debtor and declare by what title he holds them. [The judgment creditor has a right to be present when the garnishee makes his declaration, and to put him any questions tending to prove any obligation of the garnishee towards the judgment debtor, saving all objections, which a judge, if present, may decide at once, or which, otherwise* OF SEIZURE BY OARNISHMENT, ARTS. 019-620. 868 the prothonotary must note down for subsequent decision thereon by the Court. Pothier, Proc. 176 ; Gen. 475 ; C. P. C. 578-4, 578 ; 2 L. C, J. 167. 1. A seizure by ^arniahmont extendH to a debt which did not exist in favour of defendant at the time of tlie Heizuro, but which becomes duo before the garniahce makes Iiis declaration, owinfj to a liability arising after the service of the seizure. Molmn's Hank v. Lionaia e» qual., 27 L, C. J. 40 ; 5 L. N. 252, 2 Q. B. R. 170, Q. B. 1881. See 8 L. N. 116, 21 L. C. J. 176, for Judgment in Review, 1880. 2. A ^'arnishoe is bound to answer questions touching the terms of ilefendant's cnga^oment and to furnish the dates of payment, etc., aN though he claim that wa^es not due cannot bo seized. Shaw v. liatcman ,1; Rnijert, 7 L. N. 308, C. C. 1881. , 3. Whore a (garnishee made a declaration to the effect that he had given to the defendant throe negotiable promissory notes which were not due yet, but the interest upon which had been demanded from him by a third party — Hdd, that no judgment could be rendered against the garnishee upon such a declaration. Lu Lawjue du I'euple v. Martin, 1 L. C. R. 107, 8. C. 1850. •1. A tiers taiai with whom a defendant had deposited promissory notes in his favour was ordered to deliver up the notes into the hands of the prothonotary of the court. McKay et al. v. Dcmers dt Fauteux, 11 L. C. R. 2S1, S. C. 1861. .'). Where in the declaration of the garnishees, they referred to certain written documents, they were required to furnish such documents at their own expense as exhibits in support of the declaration. Formjth v. The Canada Uaptiat I^IiHsionary Society <£• Leeming et al., 2 L. C. J. 107, S. C. 18.'52. 6. A garnishee summoned to declare what he owes to a defendant who is styled a universal residuary legatee, must declare what he owes to such defendant personally and as such legatee. The court at the final hearing of a contestation of a declaration may revise a ruling which maintained a garnishee's objection to declare ivhat he owes personally to a legatee. Iludon v. Rivard, 24 L. C. J. 268, 3 L. N. 414, Q. B. 1879. <(S0. The garnishee is entitled to his travelling expenses, which must be taxed by the judge or by the prothonotary who receives his declaration, and he may retain the amount '! 9 If m,. .»! ill:" ' ii I' 1.1 1 vM ■ m ' 1 tjk riW - ^ Ymm jlMiV^^H tf g]fK IN^^I I ; IfHli^^l ^' 'ii^H I^U^lH 864 OF SEIZURE BY OABNIBHMENT, ARTS. 620-622. thereof out of the sums in which he is indebted ; and, if he owes nothing, such taxation may be enforced against the party suing out the writ, by an execution emanating from the court from which the writ issued. 1. Where the plaintiff auod the defendant for the amount of hia tax- ation as ^arniahoe in a caae — Held, that the amount allowed by way of taxation of a ^arniahoe ia recoverable by auit at law, but only after bein;{ demanded. I'lante v. Parke, 16 L. C. R. 15*2, C. C. ; lirunclle v. Sampson, U L. C. R. 12, C C. 18(i3. Boo authorities andor Art. 281 ante. If i> Q 1 .; f u ! <• 031. If the declaration of the garnishee is not contested, and he has not dechired that any other seizure has been made in his hands, the court upon an inscription for judg- ment, orders him to pay to the plaintiff, on account or to the extent of his debt, the moneys seized, according to their sufficiency. This judgment must bo served, and the delay for execut- ing it dates only from the day of such service. 1 Pig. 658. 03S. If there are several seizures at the suit of different creditors in the hands of the same garnishee, each seizure has a preference over the subsequent seiaures, according to the date of its serv.*3e upon the garnishee, except in cases ot privilege, unless the insolvency of the common debtor is alleged, in which case proceedings must be taken upon thi first seizure to call in the creditors, in the manner provided in article 603, and the garnishees, in such case, are con- demned to pay into court the amounts they acknowledge to owe. Pothier, Proc. 179 ; Gen. 477, 479, 480, 1 Pig. 659. 1. Where a creditor intervened and asked that the moneys due by the garnishee should be paid into court to be distributed, but before the allowance of the intervention judgment wua rendered maintaining the attachment and ordering payment, judgment went against the intervening' party in accordance with Masnon v. Choall, 6 L. C. R. 169, S. C. 185G ; Chapman v. Clark d- The Unity Life Ass., 3 L. C. J. 159, S. C. 1859. OF SEIZURE BY GARNISHMENT, ARTS. 622-624. 865 3. The exiatenoe of a previouH miHie arr/t in the handaof the defendants lis garnishees does not prevent thu plaintiff (defendant in previous suit), from seizing moneys dae to defendants in the hands of other garnishees. Maekay v. Rauth <6 The Hank of Montreal, 1 Legal News 161, 8. G. 1878: Confirmed in review, 1 Legal News 206, 22 L. G. J. 22 ; Caduux v. Cam. Mutual Fire In$. Co., 1 Legal News, 840. 633. If the moneyB or other things due by the garnishee are only payable at a future time, he may be condemned to pay them ^hen such time arrives, and if they are due under conditions which are not yet fulfilled. 1. The delay stipulated in favour of tiers saiitin that they should not be hold to pay what they owed until after six months' notice had been f{iven, could not affect the rights of the creditors who were entitled undur their judgment to attach all the debts and property of their debtor, however held or in whatever manner due Frost et al. v. Cameron iC- Oray et al., 8 R. L. 457, Q. B. 1830. 624. Garnishees who do not make their declaration in the manner hereinabove prescribed are condemned as personal debtors of the seizing party, to the payment of his claim. They may, however, obtain leave to make their declara- tion at any time, even after judgment, upon payment of all costs incurred upon the seizure. C. S. L. C. c. 83, s. 137, § 2, 8. 138 ; Pothier Proc. 176 ; C. P. C. 577 ; Tailhadea v. Talon tt Fahre, 1 L. C. R. 140. ■m f^m -' -■ ■ .; F m m-" -t - *— i i' y^K 1 ' ' ( ^ 1. A garnishee who has been condemned under an erroneous declara- tion by him made, may be relieved from the judgment, and may be per- mitted to make a now declaration by paying the costs incurred on the first one.' Atkinson v. Walker di Sincennes, 14 L. C. J. 60, S. C. 1869. 2. The garnishees mado a declaration by their secretary-troasurer that they owed the defendant 91,264.30. They subsequently alleged error in such declaration and made application to be allowed to make a new declaration, alleging that, at the time of the seizure, they owed defendant nothing — Held, admissible for them to make a new declaration on pay- ment of costs occasioned by the alleged error, and that any new declara- tion could be contested like the original one. Richard et al. v. PichJ <£• La SociHi Canadienne Franfaise de Coiutruction, 20 L. C. J. 290, S. C. 1876. S: i 836 OF SEIZURE BY GARNISHMENT, ARTS. 624-625. 3. The garnishee who has not made his declaration within the delay prescribed by the code, may, nevertheless, make it at any time, even after judgment, on paying the costs occasioned to the plaintiff by his negligence, and notwithstanding 624 C. C. P., he cannot be held for all costs of the attachment, but only those thus incurred. Beaudoin v. Ditcharme dk Bellefteur, 20 L. C. J. 223, 8 R. L. 663, C. C. 1876 ; Coveney v. Mullina, 6 Q. L. R. 173, C. C. 1880. 4. A garnishee may be permitted to make his declaration as such, after judgment rendered against him by default, and even after execution has issued to levy the amount of such judgment- Andrews v. Robertson, 1 L. C. R. 140, S. C. 1851 ; Roy v. Scott, 3 L. C. R. 80, S. C. 1852. 625. The judgment rendered upon a garnishee's declara- tion of indebtedness is equivalent to a judicial assignment to the seizing creditor of the judgment debtor's title of debt, and effects subrogation. 6 L. C. R. 170-1. 1. A creditor cannot recover against his debtor, if the latter have been condemned as garnishee in another case in which the creditor is defen- dant, and that more especially when he has commenced to satisfy the judgment rendered against him as such garnishee. Parent v. Talbot, 14 L. C. R. 127, C. C. 1863. 2. The service of a petition by a party not in the cause on the attorneys of the plaintiff, who obtained the judgment condemning the garnishee to pay plaintiff a certain sum of money, asking for a special order to prevent the garnishee paying over the amount, is bad. Booth v. Lacroix et «/., ' t ■ ' tvi r , m}'^' 1 tV * ''I- m i: .■■;,:| I I ^i'-m : ■ . '■ L 'A 370 OF BifilZURE BY GARNISHMENT, ART. 628. ' t .- ^ ■ \l.> U If several creditors present themselves at the same time, they shall be paid concurrently, in proportion to their claims. 7. Nothing in the preceding section shal' have the effect of preventing the attachment by garnishment of the part of the salary liable to seizure under section one of this Act ; and in the event of such attachment, the authorization given under the preceding section shall become null and of no effect. 44-45 Vict. c. 18, (Que.) : 1. Hereafter, wages due to labourers shall be liable to seizure only for a proportion not exceeding one-half. 2. The word " labourer " shall apply only to those who work and are paid by the day, by the week, or month, {Oi)erarius). 1. An attachment by garnishment of moneys in the hands of the reve- nue inspector belonging to the defendant as an informer und^r the revenue laws was dismissed. Leclerc v. Caron <& Lemoine, 8 L. C. R. 287, C. C. 1858. 2. Money in the hands of the offi-jers of the Admiralty cannot be at- tached. PerrauH v. McCarthy, 3 Rev. de Leg. 306, K. B. 181G. 3. Under a judgment against a defendant it was sought to attach a pen- sion granted to her as widow of a pilot, from what is known as the " Decayed Pilots' Fund" — Held, to be exempt. Lelievre et al. v. Daillar- geon d: The Trinity House, 3 L. C. R. 420, C. C. 1853. 4. Moneys payable on account of a contract pending with the War Department for erection of fortifications in this province are not liable to attachment. Fitts v. Piton et al. <£• H. M. Secretary of State for the War Department et al., 13 L. C. J. 165, S. C. 1869, & 12 L. C. J. 289, S. C. 1868. 5. No attachment in the hands of the Secretary of War will lie under any circumstances. Ibid. fi. Pensions granted to infirm pilots under 45 Geo. 3, cap. 12, ss. 11 and 12 "N'ict. cay. 114, s. 61, are not seizable. Shuw v. Bourget it The Corporation of Pilots, 4 Q. L. R. 181, C. C. 1878. 7. The salary of an officer of the Inland Revenue cannot bo seized in the hands of the cc'lector of Inland Revenue having an office in the City of Montreal, because he is not the head or the deputy-head of department but a mere employee himself. Evans et al. v. Hudon lO Browne, 22 L. C. J. 268, S. C. 1877. 8. The exemption from seizure of the salaries of public employees is a matter of public order, and the Legislature of the Province of Quebec has not the power to declare the salaries of employees of the Federal govern- ment seizable. Ibid., Crhier v. De GrandprJ, 5 L. N. 48, C. C. 1881. i. . * S "ft OF SEIZURE BY GARNISHMEKT, ARTS. 628-629. 371 9. The salary of school teachers remains unseizable notwithstanding 38 Vict. cap. 12, (Que.). Lovejoy v. Campbell <£• The Protestant Board of School Commhsioners, 7 L. N. 397, M. L. E., 1 S. C. 77, S. C. 1884 ; Lafricain v. rUlennive, 4 L. N, 645, S. C. 1881. ■ • 10. The salary of a government employee is not seizable unless under some special statute. A government employee paid by the day, is not one of the employees whose salaries may be seized under 38 Vict. cap. 12, (Que.). Lepine v. Gauthier, 5 Q. L. B. 217, C. C. 1877. 11. In the case of an attachment of the salary of a public officer under 83 Vict. cap. 12, (Que.), there being no one upon whom an order binding as a judgment can be made, the court will simply declare that the seizable part of defendant's salary, so long as he continues to be employed as a public officer, may be paid to the plaintiff until his debt is discharged. Burke v. Colfer, 6 Q. L. E. 349, S. C. 1880. 639* If a garnishee declares that he has in his posses- sion moveable effects, the judgment orders that they shall be sold, and the garnishee is bound to deliver them to the officer charged with selling them. If the garnishee has in his hands negotiable paper or titles of debt payable to bearer-, he may be condemned to deposit them in the prothonotary's office, or to deliver them to a person named by the court, according to circumstances. 1 Pig. 660, 11 L. C. K. 284. 1. A plaintiff cannot by motion after the issue of a writ of saisie arr^ ask that the garnisn^. .• oe ordered to pay over the amount p*^^tachec in deduction of his claim tigjinst the defendant. Februyer v. Poirier ct Decar^, 7 L. C. J. 44, S. C. 1863. 2. Where the garnishees made a declaration that the defendant had deposited with them three debentures of the city of Hamilton, etc., it was ordered that the garnishees do deposit the same in the hands of the pro- thonotary within fifteen days after service upon them of the Judgment, to abide the decision of the court. Milne, 6 L. C. J. 301, S. C. 1802. Perry v. Milne cO The Ontario Bank v. 3. When a plaintiff who has obtained judgment against a garnishee neglects or refuses to enforce payment from him, the defendant will be empowered to cause the issii-^ of a writ of execution for the levy of the amount due by the garnishee, which amount will be held by the sheriff subject to the order of the court. The Quebec Bank v. Stuart et al. & The Quebec Fire Ansuran-e Co., 14 L. C. R. 101, S. C. 1803. m '.fc't ill #1- ■T'--.rrp™«. i'i'd i ^H Mil '9: n liS.!! 372 OF EXECUTION UPON IMMOVEABLES, ABTS. 629-682. '4. Where moneys attached by a writ of saiaie arrH avant jugement have been deposited in the hands of the prothonotary, an official assignee has a right to claim them as tiers oppoaant, in which case the plaintiff has only a lien for costs up to the date of the publication of the attachment in in- solvency under which the assignee was appointed. Macfarlane et al, v. Bell <& Dougall et al. & Bum, 10 L. C. J. 26, S. C. 1866. 5. A tiers saisi who refuses to deliver up articles seized in his possession is guilty of contempt. Ferguson v. Millar <6 Hooker, 8 Rev. de Leg. 305, K. B. 1813. 6. Where a person upon whom a writ of attachment en niain tierce had been served, declared on oath that he had nothing in his possession belonging to the defendant, but afterwards, when examined as a witness, admitted having a number of articles of value — Held, that ho was bound to give a detailed statement of the value of such articles, and must be condemned as the personal debtor of the plaintiff to the extent of their value. Grant et al. v. Teasel «£• McShane, 17 L. C. J, 163, S. C. 1873. ttSO. The proceeds of the sale of such moveable effects are afterwards distributed in the same manner as other moneys levied under executions against moveables. 1 Pig. 664. 631« If a garnishee declares that he is not indebted, and he cannot be proved to be so, the court orders him to be discharged from the seizure, and condemns the seizing party to pay the costs. Pothier, Proc. 176. . ??^#,i I ''; i nil i ,1 n SECTION V. OF EXECUTION UPON IMMOVEABLES. § 1. Of the seizure of immoveables in execution. tfSS. The seizure of immoveables can only be made against the judgment debtor, and he must be, or be reputed to be, in possession of the same, animo domini. No seizure can be made of immoveables declared by the donor or testator thereof, or by law, to be exempt from seizure. • ■ t • .? OF EXECUTION UPON IMMOVEABLES, ARTS. 682-633. 878 Constituted rents representing seigniorial dues are seized and sold with the formalities prescribed by the Act 27-28 Vict. c. 89. 1. The railway of an incorporated company may be seized in execution of a judgment, or sold at sheriff sale. The Co. of Drummond v. The South E. R. Co. i& The South E. R. Co. v. The Co. of Druvimond, 24 L. C. J. 276, Q. B. 1879 ; La Banque D'Hochelaga v. Montreal P. dt B. Ry. Co., 4 L. N. 332, S. C. 1881. 2. A sheriff acting under special instructions from the attorney of a seizing creditor and without malice, seized the land of several parties not in the case. Oppositions were filed, and maintained with costs for the payment of which the sheriff was held responsible. McDonald v. TachJ, 2 R. C. 475, S. C. R. 1872. 3. Sale stiper tion domino. The Consolidated Bank of Canada v. The Town of St. Henri et al., 5 L. N. 231, S. C. 1881 ; McCorkill v. Knight, 3 Sup. Ct. Rep. 233. 4. A sale made by an assignee under the Insolvent Act of 1875 of a piece of land which the i jlvent had not possessed animo domini, will be set aside upon application of the real owner. Shortia v. Luckerhoff et al., 11 R. L. 537, Q. B. 1882. 5. The seizure of " all the right, title anu interest " of the defendant in and to certain real property described, under and by virtue of a deed of sale of which a full description is given, is illegal and in violation of C. G. P. 632, 637, 638 and 648 ; and the defendant has a legal interest in pleading such illegality. Carter v. MoUon & Molson, 27 L. G. J. 151, 6 L. N. 134, S. G. 1883. 633. The seizure of immoveables can only be made in virtue of a writ, clothed with the same formalities as writs of execution against moveables, ordering the sheriff to seize the immoveables of the defendant and . o sell them in satis- faction of '^^he condemnation pronounced against him in principal interest and costs. The date of the judgment must be inserted in or written and certified upon the writ, under the signature of the pro- tbonotary. Exceptional provisions regulate the sale of immoveables for the payment of municipal taxes a^ i assessments. 25 Oeo. III. c. 2, s. 30 ; C. S. L. C. c. 88, ss. 189-140. ;■* fit J tl- HI i:\u II , Is'' " ii|il|';ii:«i i , '^ >^; ti fe.,! ^^'^'' rr < 1 , M\ ,...1 r>M 874 OF EXECUTION UPON IMMOVEABLES, ARTS. 684-637. 634. [The wrii< is addressed to the sheriff of the district in which the immoveables belonging to the judgment debtor are situated, and is executed by the sheriff himself or by one of his officers.] C. S. L. C. c. 83, s. 40 ; 12 L. C. E. 403. 035* When any of the immoveables to be seized is situ- ated at more than nine miles from the place vrhere the writ of execution issues, the sheriff, upon the written de- mand of the creditor or of his attorney, is bound to employ for making the deizure, the publications and the adjudica- tion, such bailiff residing in the locality in which the immoveable is situate as the creditor indicates, and in such case the sheriff is discharged from any liability resulting from the acts of such bailiff, and the seizing creditor becomes alone responsible. The seizing creditor, in order to avoid costs, may also undertake the transmission of the documents belonging to the execution, and the bailiff is bound to return them to him, and on doing so is discharged from any consequent responsibility. The other provisions of article 555 apply likewise to writs of execution against immoveables. 27-28 Vict. c. 39, s. 12. 636. When an immoveable is situated partly in the dis- trict in which the judgment was rendered and partly in another, it may be wholly seized in execution, in the same manner as if it were wholly in the district in which the judgment was rendered. 637. Before proceeding to seize immoveables, the seizing officer calls upon the defendant to declare and specify his immoveable property, except the case of immoveables sur- rendered in a suit and the cases mentioned in article 641 ; and upon his failure so to declare and specify, the execut- ing officer may seize the property in possession of the defendant, at the risk and peril of the latter. C. S. L. C. c. 85, s. 5. OP EXECUTION UPON IMMOVEABLES, ART. 688. 875 03S. 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 defendant bavin** been called upon, as required by the preceding article ; 3. A description of the 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 number of each immoveable, if their exists an official plan of the locality ; if not, it must mention the contermin- ous lands ; If the property to be seized consists of incorporeal rights, such as rents, leases, or other real charges, mention must be mp 'e of the title under which they are due, with a des- cription as above mentioned, of the real property charged with the same ; 4. Mention that the minutes are made in duplicate, and that one duplicate thereof has been delivered to the judg- ment debtor, either personally or at his actual o** legal domicile. 8 L. C. It. 209 ; C. S. L. C. c. 37, s. 74, § 4 ; Pothier, Proc. 190-1. ':B-5-, ir I .'h ii.il IMk^lH 42-43 Vict. c. 24 (Que.) : In the ro^istratiou cliviHion in wjiich official pliwia and books of refer- ence are in force, all sheriff's titles reapectinf,' real estate situated within such divisions, ;)nn'npuy lO Franey, 3 L. N. 260, 8. C. 1880. 8. Where an immoveable sold by the sherifT is described as bein^j boun- ded by a projected street which proved to be the only means of communi- cation from the property to the public highway, and such street is found subsequently to have no Ic^al instance, and it ia clear the purchaser would not have bouf^ht had he known that no such street really existed, the sale will be set aside on petition to that effect by the purchaser. The purchaser has a right under the circumstances to recover from the parties collocated in the judgment of distribution of the proceeds of said sale, the amounts of their respective collocations with interest. Moat v, Marsan, 25 L. C. J. 218, Q. B. 1880. 4. In consequence of a clerical error committed in the seizure of im- moveables by the sheriff, a petition to annul the sale presented by the migi was granted with costs against the sheriff. Beaudry v. Raymond, 14 L. C. J. 112, 8. C. 1869. 5. In the case of the seizure of real estate it is not necessary to mention in the prods-verbal and notices, the contents of the property seized, and in the case submitted, the respondent having sold the real estate mentioned without having mentioned its contents, could not urge the absence there- of in the procifn-verbal. Berthelot v, Guy et al,, 8 L. 0. K. 299, <& 2 L. C. J. 166, Q. B. 1868. 6. It is not necessary that the ;)roc<>o-];er{)a/ of seizure of immoveables should bo made and signed on the place where the immoveabloa are situa- ted, but it may be legally made at the domicile of the saUi. SAiAal v. Vienne 5 ; Pothier, Proc. '210 ; 1 Pig. 75(5. Ul-1. From tho moment that immoveables have been sei/(!(l, tho debtor camiot, on pain of millity, alionato them. Tho alienation avails, however, if the seizure is declared null, or if, before the day fixed for tho sale, tho purchaser or tho debtor pays into the hands of tho sheriff a sufficient sum to discharge the claims of tho creditor in whose name the seizure was etlected, as well as tho claims of any credit- ors whoso writs of execution have boon noted, and the amount thus deposited is forthwith paid by the sheriff to the creditors entitled to it. C. S. L. C. c. 47 ; C. P. C. GSG-7. 1. Tho seizure of roal estate does not prevent tho effectual enrofiistrii. tion of a deed executed before tlio seizure. Dorion v. HalU. 7 Q. L. R. liti, S. C. IHHI. 2. Tho calo by tlio jud^'ment debtor of tho effects seized to a party in ^ood faith is assimilated to the sale of things stolen ; and the seizing' creditor or tho j^uardian may revendicato them. Franeif v. Contello, 12 II. L. 300, C. C. 18S2. 04»1. The immoveables seized remain in possession of the judgment debtor until tho adjudication. [But if the sale is prevented by any opposition, the seizing creditor may, according to circumstances, and in the discretion of the court,* obtain the appointment of a sequestrator to receive the rents, issues and profits of the immoveables. ' Ord. 1026, art. 157 ; 1 Pig. 755 ; C. P. C. 685. See 48 Vict. c. 20, s. 4, under art. 1, ante. • " or tho judge," 48 Vict. cap. 20, b. 11, (Que.). OP ADVEIlTIfiKMRNTS, ARTB. 015-048. 871) A JikIko in ChainborH nuiy mime a BocjuoHtrator to an immoveablo under Hdzuro, whoro tlio Huizuru in delayotl bocauHo of an oitpoHitiuii. Moruan v. Lord et al., 3 Q. U. K. Hit, Q. 11. 1882. O I0« The jiulgmont debtor cannot, nor can any otlior perHon, cut timber on the property seized, or in any man- ner deteriorate the uamo, on pain of being impriHoncd for a terra not oxceodinf; six months, under a rule of court or the order of a judge in vacation. C. S. L. 0. c. 85, b. 2« an abatulonnicnt, tlio dofondant roservod buildings orectod bj' liiin on tbe property after plaintiff ^nt bin niortf{a({o. ThiH renorvation waH iioid to bu of no effect, and the removal by defendant of the bnildin^H wiiile the property was under seizure was a deterioration w ', ■' i y\: i 3| m Mn^ •M yH •■ill ■wtm # J' I I •1 ■I 'I. 'I lil ,'! V mumm mm 884 OP OPPOSITIONS, ETC., ARTS. 650-651. 1. In an action to set aside a sale made by the sherifF on the ground that the formalities required by law precedent to the sale of immoveables had not been observed, that the announcement had not been made at the church doors i that the sale having been first stayed by an opposition ajin de cJiarge which was maintained, the property was subsequently sold by the sheriff with the ordinary formalities, under a writ of venditioni exponas — Held, cor^'-ming the judgment of the court of reviow, that the plaintiff having \ . n all along that Ihe announcements had not been made, and havir ken no proceedings to stop the sale, had waived any objection that 1, ight have had thereto, and had no right of action after- wards to C9t it aside. Douvier v. Brush et al., 1 B. L. 641, & 1 L. G. L. J. 110, Q. B. 1865. 2. And held, also, that the failure or neglect to make the announce- ments at the church doors after oppositions filed, is not a giound of abso- lute nullity of an execution in every case. Ibid. § 3. 0/" oppositions to the seizure and sale of immoveables. 651. The sheriff, in the absence of any consent on the part of the seizing creditors, cannot stop the sale of im- moveables except upon a judge's order, or upon the filing of an opposition, accompanied with an affidavit on the part of the opposant that all the allegations in the opposition are true, to the best of the deponent's knowledge and belief, and that the opposition is not made with intent unjustly to re- tard the sale but solely to obtain justice. 6 L. C. E. 431, 479 ; 7 L. C. R. 130, 8th Eule of P. Mi m Vm 1. In default of obtaining an order to suspend proceedings, previous to filing an opposition, the judgment remains executory, and the defendant is obliged to pay the amount within the delay fixed by law. Mollciir d- Molleur d- The Attorney General, 5 E. L. 379, S. C. 1874. 2. A judge in the exercise of his discretion may grant a sursis of pro- ceedings under execution for the purpose of allowing an appeal to the Privy Council. De Gaspeet al. v. Asselin tO De Gaspe, 18 L. C. J. 112, S. C. 1873. 3. Where a creditor of the plaintiff, before pxecution had issued against the defendant, caused a writ of attachme.:' in garnishment to be served on the defendant — Held, that this did not suspend proceedings under an execution, and to produce that eTect, the defendant must have deposited the amount of the judgment with interest and costs. Duvernay v. Des- saulles, 4 L. C. E. 142, Q. B. 1851. \\ OF OPPOSITIONS, ETC., ARTS. 651-652. 385 4. An execution cannot be issued on a judgment rendered against four defendants, if one of them have instituted an appeal, and such appeal is still ponding. Brush et al. <& Wilson et al., 6 L. G. R. 39, S. C. 1856. 5. An order to the sheriff to suspend all proceedings on a writ of )i. fa. (le terris causes the writ to lapse. Hanger et vir (£• Seymour et al., 10 L. C. J. 42, Q.B. 1872 053. Every opposition to the seizure and sale of im- moveables or rents must bo filed at the latest on the fifteenth day before that fixed for the sale. No opposition filed after this period can stop the sale ; but if the object of the opposition is to withdraw, in whole or in part, the immoveable or the rent under seizure, or to impose upon tjio purchaser some charge which would l)e destroyed by a sheriff's sale, such opposition has the effect of an opposition for payment out of the moneys levied. The sheriff' in all cases is bound to return such opposi- tions into court. C. S. L. C. c. 85, s. 15. 1. An opposition to annul tho seizure of real property cannot bo re- coived v.'ithin tho fifteen days fixed for tho sale, even with the order of a jiulgc. Lcpeninci' li- Allard et vir, 1 L. C. H. 104, (^. B. 1851. •_'. Whore ail oppositimi ofin d'annulcr had been filed to the sale of an immoveable within tho hftooii days proooding the sale, and the plaintiff made motion that the opposition be dismissed under C S. L. C. cap. 85, s. I'j—IIrld, that as the court had tho power to grant tho prayer of an opposition thus tiled tho motion would be rejected. The Trust d} Loan Company of Upper Camuhi v, Jitlien dj Mai/. 7 L. C. J. 12',), S. C. 18C3. 3. All opposition produced too lato, namely, within and not previous to rbe iifteon days next before tho day lixel for tho sale, may be rejected upon motion, notwithstanding that such opposition has been produced with the order of the judge to receive the same, and upon the affidavit of one of the opposants. Joseph ct Donnelly d) 2Ionahan, 12 L. C. R. 106, S. C. 1861. 4. An opposition to a forced sale of immoveables accompanied by a judge's order and fyled within the fifteen days preceding the day fixed for the sale, has the effect of legally stopping the sale. The opposition herein is not on its face frivolous, and will not bo rejected on motion 25 F. c. c. p. in wM'ni: ■ iiii-i 111 -^'1''! im '\pi H' I >i ; t i: 886 OF opposiTToysi. WTO., ARTS. 662-656. "i ■!. ' I The Heritable Securities and Mortgage Inv. Ass. v. McKinnon <& McKinnon, 27 L. 0. J. 345, S. C, 1883. 5. Flainti£f obtained judgment t the 30th Apri' On the 16th May he issued a seizure by garnishment. On the 20th May defendant appealed from the judgment. On the 30th May the seizure was returned, '/here- upon (June 6th) defendant p<3titioned that main lev^e be granted of the seizure. Motion refused, but proceedings suspended. Desjardins v. Guimet, 2 L. N. 194, S. .';, 'S79. 6. If the fifteenth da^' ore that fixed for the sale be a holiday, opposi- tions may be filed on ti. fourteenth day before that fixed for the sale. Boivin v. Welch, 7 Q. L. R. 293, S. C. 1881. 653. Notwithstanding the filing of any opposition to the seizure or sale of immoveables or rents, the sheriff is bound to continue the publication hereinabove prescribed ; but he cannot in such case proceed with the sale without an order from the court. Novcrthelesb when the opposition is founded upon grounds which only go to reduce the amount claimed, the plaintiff, upon giving the opposant notice that he admits his opposi- tion, may proceed to the sale in conformity with the con- clusions of such opposition. C. S. L. C. c. 85, s. 17, § 3. 654. Every opposition must be delivered to the sheriff, and the return of its service upon him, if it is required, must be made at the foot of a copy thereof. 655. Saving the provision of articles 652, the sheriff is bound to return into court, within twenty-four hours, any oppositions to the seizure and sale duly served upon hiin, together with the writ of execution, all his proceedings, in- cluding a duplicate of the advertisement published in the Canada Oazette,* and a certificate of the oral publication, if it has taken place. Ibid. s. 16. 656. Every party who opposes unsuccessfully the sale of an immoveable or of a rent under seizure, is liable Now " The Quebec Oflicial Gazette." 31 Vict. cap. 13, s. 4 (Que.). OF OPPOSITIONS TO ANNUL, ARTS. 656-657. 887 towards the party seizing and the defendant, not only for the costs incurred upon his opposition, hut also for all damages resulting therefrom, including interest upon the amount due to the plaintiff, for the time during tvhich the sale waR stopped. Ibid. s. 17. 1. To file an unfounded opposition ajin d'annuler is a false plea inten- ded to impede the due course of justice, and is, therefore, a contempt, and attachment may be granted therefor. Quirouet v. Wilson, 3 Rev. de L6g. 472, K. B. 1818 ; Hunt v. Perrault, 3 Bev. de L6g. 475, K. B. 1820. 2. Where the opposant had filed three oppositions consecutively, and the plainti£F moved for a rule for contempt on the ground that the oppo- sitions were filed only with a view of retarding the sale of the property, the rule was granted with costs. Thomas v. Pepin d> Pepin, 5 L. C. J. 76, C. C. 1861. Of oppositions to annul. 657* The party whose immoveables or rents are seized may oppose the seizure or the sale thereof, whether his op- position be founded on matters of form or on matters of substance. Third parties may likewise file similar oppositions when they have an actual interest therein. Pothier, Proc. 206-7. 1. A creditor holding a haillAir defonds claim upon property seized as " moveables," which he pretends are "immoveables," may exercise the rights of his debtor and file an opposition to annul. Philion v. Bisaon d; Graham, 2 L.N. 38, 23 L. C. J. 321, 9 B. L. 617, S. C. 1878. 2. The seizure of an immoveable under a writ of execution against im- moveables is an absolute nullity ; and may be opposed by third interested, or by the debtor. Ibid. 3. An opposition aJin d'annuler alleging a previous seizure, and that saide sur saisie ne vaut, will not be set aside on motion. Fraser v. Burn- stein d- Bnrnsti'in, 9 L. C. J. 215, S. C. 1865. 4. An opposition aJln d'annui 'rmtty be dismissed on motion. LaBanque dii Peuplc V. Daoitst d- Damist, 9 L. C. J. 215, S. C. 1865. 5. The payment of an amouiv ; for which judgment has been recovered, miule anterior to such judgmen, , .aay be successfully pleaded by an op- position ajiii d'anuuler to a seizure made under such judgment. Doijle et al. V. Mehrr et al. d- Mclvcr et uL, 19 L. C. J. 308, S. C. H. 1875. See Arts. 555 and 581 ante. ■niii .i ! !■[ ; "' ; if J 388 OF OPPOSITIONS TO ANNLi.> ^RT. 657. 6. On motion to reject an opposition — Held, reversing the judgmont of the court below, that an opposition adn d'annuler issued out of the Circuit Court does not require to be registered or entered in the books of tlie court before it is placed in the hands of the baihff. Laviothe v. Garceau, 13 L. C. J. 88, Q. B. 1862. 7. An opposition afm d'annuler, for want of a proda-verhal on a writ of fieri facias against immoveables cannot be maintained. Pozcr v. Leajier- ance, 3 Rev. de Leg. 471, K. B, x812. 8. A judgment which the defendant might have pleaded by way ot compensation of the original demand cannot be received as the ground of an opposition afin d'annuler, as it would be permitting the trial of the merits de novo. Miville v. Fay, 3 Rev. de L6g. -l?!, K. B. 1814. 0. An opposition ajln d'annuler cannot, generally speaking, bo main- tained by a ticrH saisi. Martel v. Comtantln, 3 Rev. do L6g. 475, K, B. 1821. 10. One judgment may be set up against another by opposition ajin d'annuler for payment pro tanto. Frost v. Eason, 3 Rev. de L6g. 475, K. B. 1821. 11. An opposition cannot be maintained on the ground that the 'lerson making the seizure was not a sheriff's bailiff, whore the writ of execution was delivered to him by the sheriff. Frelelgh v. Seymour, 8 L. C. R. 2.'j(l, S. C. 1858. 12. Whore opposition afm d'annuler, was made by defendant to a writ of t^enditioni e.rjwnason the ground that there was already a seizure of the goods, and that the amount claimed by the writ was more than was due — Held, that it must be rejected, as made on entirely insufficient grounds, and that the only question was whether it could be rejected on motion in- stead of demurrer, which was also allowed. MeDonald\. Grenler di Grenier, 3 L. C. J. 72 & 9 L. C. R. 73, S. C. 1858. 13. But where an opposition afin d'annuler was filed on the ground that an amount already levied on a previous seizure was not credited on the second writ, and that the lots seized were advertised to be sold in a parish different from that in which they were situated, the opposition on both these grounds was maintained with costs. Esty et ux. v. Judd et vlr lO Judd et vlr., 3 L. C. J. 73, S. C. 1858. 14. An opposition will not lie which is basod on averments which have been already set up in a previous opposition on which the court has deci- ded Fournier v. Russell, 10 L. 0. R. 367, Q. B. 1860. OF OPPOSITIONS TO WITHDRAW, ART. 658. 889 Of oppositiona to ivithdraw. ilSiH, Oppositions to withdraw may be filed by third parties who claim as their property part of any immoveable or rent under seizure. Pothier, Proc. 208. 1. On the contestation of an opposition afin de distraire — Held, that sucli an opposition may be filed to a writ of venditioni exponas de bonis, Delisle V. Couvrette dt Clhient, 4 L. C, J. 84, 8. C. 1869. 2. A mere allegation in an opposition afin de distraire that the tools seized form part of the defendant's implements of trade is insufficient to maintain such opposition. Ion v. O'Connor d' O'Connor, 7 L. C. J. 126, C. C. 18G3. 3. If there be delivery of moveables assigned and they are taken in exe- cution in the possession of the assignor, the assignee cannot maintain an opposition afin de distraire. Hunt v. Fen-ault, 3 Rev. de L6g. 476, K. B. 1821 4. An opposition afin de distraire cannot be filed by a person who has made himself voluntary guardian to asaisie gagerie of the effects claimed, and allowed judgment to go (without opposition) declaring the saisie good and valid. Foirier v Plouffe d- Calvi, 21 L. C. J. 103, S. C. 1877. 5. A document not alleged in an opposition afin de distraire and not produced at the filing of the opposition, cannot be produced and filed later. Ibid. (). An opposition afin de distraire to a seizure of moveables, seized in the possession of the party condemned, will be dismissed on motion, if the allegations fail to set out any specific title and do not set up a possession ill the oppo-^ants. Dnhamd et al. v. Duelos tf Dttclos, T. S. tfc Ferrault et vir, 21 L. C. J. 308, B, C. 1877. u ;# vJ) :-J? 7. Where the opposant claimed part of the immoveable seized by an opposition to withdraw, the sei/iing creditor was not allowed to proceed with the sale of the part unaffected by the opposition, especially as he liad given no notice of his petition to proceed to the debtor. Chinic et vir V. Trust and Loan Co. of Canada, 3 Q. B. R. 259, Q. B. 1883. 8. Where an opposant claims from an assignee lands which the latter liolds under deeds of sale, and the vendors are not in the cause, recourse must be had to the revocatory action, in which all concerned are to be made parties. Woods d- Co. in re v. Lajoie, 23 L. C. J. 05, S. C. 1879. 1 1 1 1 \ > t ' ^ iji t ' -' wm , f M t >>0 ¥ 1 A y it\ niiH, and the defendant obtained an ordur of tlio judf{o tu stay tlio sale on the f{roinid that the pro^jorty Hui/ud, conHiHtin^ of real oHtato, en rotiire, should be Hold at tlio churcli doorH, and that the whole of the railway Bhould havti l)cen taken in execution at once, the oppoHition waH rejected on the fjround that the objection contained in it mi({ht have been ur>{ed by an oppoaition lllod within the ordinary delay to a writ of liiri fucian, and that the conclutiionH ur^cd wore inapplicable to a Hale under a writ of renditioni e.rpiinaM. Ahholt v. The Montreal d: lUjtown liiiil- way Company, 1 L. C. J. 1 A (5 L. (J. U. 128, 8. C. im>. 5, An oppoaition ajin d'anntiler will lie to a writ of venditioni e,rpnnan in certain special cases. I'ournier v. liungell, 1 L. C, J. IIU (& 7 L. C. K. 130, Q. B. 1857. 0. An opposition ajin d'annitler may be filed to a writ of iwndit ni esponan when such opposition is founded upon the alle^'ed nullity of the writ itself or the irro(,'ularity of the procoedin>{8 thereon, and in snch case the opposant does not require the order of a jud>?o before his oppositic ■ can be received. Atkins et al. v. The Quebec liuildiny Society, 10 L. C. R- H33, g. D. 18<)0. . 7. Where opposant (defendant's wife) tiled her opposition to a vend. e.r. without leave of the Court, it was rejected on motion, althouj^h the first opposition had been made on the very day of the seizure, the Court hold- ini^ that the opi>osant should have proved that all the advertisements had not been made. Delinelle v. Arni^tvony et al,, 2 L. N. 172, 10 R. L. i)15, Q. il. 1879. 8. An opposition to withdraw to a writ of vend. ex. made on grounds anterior to the vend. e.r. will be rejected on motion though permitted by a jml^je's order in chambers. Desniartean v. Pepin, 10 R. L. .'jIH, 2H L. C J. f)l, S. C. 1870 ; confirmed in ai)iHial, 9 R. L. 027, 1 Q. B. R. 123, Q. B. 1880. 9. A judge in chambers may permit the making of an opposit'-^n to a vend. ex. and jjrant an order to 8U9i)end when all the advertisem • .•< -tc., have been publiwhed ; and the opposition is t,'ronnded on facta anterior to the procoedint^s by which the first sale was stopped. Drolet v. Neveu, 9 K. L. 518, S. C. 1878. 10. When the sale has not taken place in consetiueuce of the sickness, on the day fixed for the sale, of the oflicer charj^ed with the execution of tlio writ, the plaintiff is not entitled to a writ of vend. ex. so as to have the property sold after two advertisements. Go!<.ielin v. NauUn, 7 Q. L. R, 28a, 8. C. 1881. I..V ',- ■ lEjIffl 1- t'ffl 1 . \ .i :■ i '11 ■ :m ■ni-i ;' i W ' "MB I mu^i^ m L': ill m l-ii mwM ,1 fi f 394 OF BIDDING AND SALE, ARTS. 664-667. 11. An opposition was filed to a writ styled a vend. ex. but requiring notices of sale to be given for the same periods required for proceedings under a writ of ^■. fa. On a motion to dismiss the opposition it was held that the writ was not one of vend. ex. Vidal v. Demers, 7 Q. L. R. 313, S. C. 1881. 12. An opposition to a vend. ex. cannot be maintained unless it is based on grounds subsequent to the proceedings which caused the first writ to be suspended, even where a judge's order to suspend has been obtained. Lamy v. Cusson, 10 R. L. 542, C. C. 1879. § 6. Of bidding and sale. 665. Bids may be given in writing at the sheriff's office at any time after the seizure, except during the eight days previous to the day fi-xed in the sheriff's advertisement for the sale of the immoveable or rent, either upon the writ of fieri facias when the sale has not been stopped, or upon the venditioni exponas, if the sale was prevented from taking place according to notice under the fieri facias. 27 & 28 Vict. c. 39, s. 4. 666. Such bids if made by a creditor of the judgment debtor, must be accompanied with an affidavit, sworn to be- fore a judge, the prothonotary, a commissioner of the Supe- rior Court, or before the sheriff, who is authorized to admin- ister such oath, stating the nature and amount of his claim, and declaring that they are made in good faith, and not to delay the proceedings. Ibid. s. 2. 667* Such bids by a person who is not a creditor, must be accompanied with an affidavit, sworn to in the manner stated in the preceding article, stating that they are made in good faith, and not for the purpose of delaying the pro- ceedings ; and the sheriff may, if he thinks fit, requiit' security from such bidder, or a deposit of a sufficient sum to cover the costs incurred by the seizing party up to the time of such bid, and the costs of a resale upon false biddhij;, in case it should be necessary. Ibid. a. 3. OP BIDDING AND SALE, ARTS. 667-671. 395 1. A promise by one bidder at a judicial sale to another, to pay him a sum of money if he refrains from bidding, is an illegal obligation. Per- mult V. Couture, 16 L. C. J. 251, S. C. 1872. 66S. Every such bid must be in writing, and must indi- cate : 1. The name of the case in which it is made, and the names, quality and residence of the bidder ; 2. The immoveable or rent bid upon ; 3. The amount offered. It must be signed by the bidder, or be in the form of a notarial original. Ihid. §§ 4, 5. i iiv ■5 1' I 1^1 Mvll 'mi 1. At a sale under execution the sheriff cannot oblige a bidder to renew the declaration of his domicile, etc., at each bid. Morrison v. Cyr d- Perron, 14 L. C. J. 265. S. C. R. 187C. 2. Nor has the sheriff a right to allow a contestation of such declara- tion made by a bidder. Ibid. 660* The sheriff is bound to endorse on each such bid the date of its filing, and to return it into court with all his other proceedings. Ibid. § 6. X 070. The sheriff is bound to furnish the officer by whom the sale is to be made, with a list of such bids as have been filed under the provisions of the above articles. Ibid. § 12. 671* Immoveables under seizure, that are held in free and common soccage, or otherwise than en rotureor en franc alien roturier, and those which are situated in the District of Gaspi^ under whatever tenure they are held, can only be offered for final bidding and adjudication at the registry office for the re- gistration division in which they are situate. Those which are situated in the city, town, or chief-place where the sheriff's office iy kept, or within the suburban limits {h'^nlieue) thereof, must be bid upon and sold at the sheriff's office. ■f ;:!rt I i [i 396 OF BIDDING AND SALE, ARTS. 671-673. i'. All other immoveables must be bid upon and sold at tlie door of the parish church of the locality where they are situated. C. S. L. C. c. 85, s. 4 ; 27-28 V. c. 39, s. 8. 47 Vict. c. 17, (Que.) : 1. Article 671 of the Code of Civil Procedure is amended, by replacinf» the first paragraph by the following : — "Immoveables under seizure, that are held in free and common soccage, or otherwise than en roture or en franc-alien roturicr, when they are not situated in a parish civilly erected, and those which are situated in the district of Gasp6, under whatever tenure they are held, can only be offered for final bidding and adjudication at the registry office for the registration division in which they are situate." 42-48 Vict. c. 25, (Que.) : 1, All sales of property situate either within the limits of the city of Montreal or without the same, but within the limits of the late parish of Montreal, and considered by the sheriff of Montreal, as being within the limits of the hanlieue of Montreal, have always been legally made at the office of the sheriff of Montreal, in the city of Montreal, notwithstanding the ei-ection of the said new municipalities within the said limits, and the lands and properties so situated shall in future, continue to be sold at the said sheriff's office, notwithstanding any such erection of parishes or municipalities already made, or which may be made after the passing of this act." 1. A sale of an immovable by the sheriff in a district other than that in which the property lies is null. I'hillipH v. Sanborn, 6 L. C. J. 2.')2, 12 L. C. R. 408, Q. B. 18(52. See Fauteux v. The Montreal Loan d- M. Co., 22 L. C. J. 282, Q. B. 1878. under Art. 714 post. OTtd* The sale cannot take place on a Sunday, on pain of nullity. C. S. L. C. c. 23, s. 1, § 2. 073. On the day and at the place appointed for the sale, the officer conducting the same, after reading the notice, the charges and conditions of the sale, and the bids tiled in the sheriff's office, offers the immoveables for sale, taking as au upset price the highest bid tiled with the sheriff, if any were so tiled. 27-28 Vict. c. 39, s. 4, § 7. OF BIDDING AND SALE, ARTS. 674-678. 897 674. No bid can be received unless the bidder declares his names, quality or occupation, and residence, and minutes are taken of the bids received. Every bid implies an undertaking to buy the property at the price of such bid, subject to the condition that no higher valid bid win be given. Pothier, Proc. 218 ; C. P. C. 704 ; Il&ic. Vte. dcs Imm. 184-5. 675« The conditions of the sheriff's sale must express all those contained in the preceding article, in articles 687, 688, 707, 708, and in the advertisements. 07C». The party upon whom the property is sold, if per- sonally liable for the debt, cannot become purchaser nor bid, neither can the persons mentioned in article 1484 in the Civil Code, nor can the sheriff or other oliicer entrusted with the sale. Pothier, Proc. 218-220 ; Heric. Vte. des Imm. 180-1; C. P. C. 7lJ. 677. Verbal bids may be made by proxy. Proc. 223. Pothici tt7>*. The officer conducting the sale must require from every bidder, before he receives his bid, a deposit of a sum of money equal to the costs then due to the seizing party upon the judgment and seizure, in the following cases : 1. In all cases wherein the sale has been stopped by an opposition ; 2. In cases of resale upon false bidding, if the court* has imposed that condition at the instance of some party to the suit. C. S. L. C. c. 85, ss. 18, 22. When an order is made under C. C. P. «)78, requiring bidders at a sheriff's sale to make a deposit, such order ought to bo published as ouo of the conditions of the sale. A failure to publish such conditions may be taken advantage of by defendant, by a petition en nnllitc' de decr^t. Robi- taiUe\. Drolet, 7 Q. L. R. 67, S. C. R. 1881. * " or Judge." 48 Vict. cap. 20, a. 11, (Que.). I m i^!', 1 , , m 0. •Ji!''}';';' ; tr'tMH-! 1 ! ''rl \ :i ! '^m 898 OF BIDDING AND SALE, ARTS. 679-683. 679. The court* may also order such deposit or payment in any case where the party seizing, or his attorney, de- clares upon oath that he is credibly informed, and believes that the defendant, with a view to retard the sale, will cause the immoveable to be adjudged to some insolvent or un- known person. Ibid. ss. 18, 20. 6SO. In any case wherein two resales upon false bidding have taken place, the cour.^ ffay, upon application of any interested party, order tl r,t every bidder shall be required to deposit or pay a sum equal to one-third of the debt due to the seizing party, in principal, interest and costs, but not in any case exceeding four hundred dollars. Ibid, s. 20. ttSl. In the cases mentioned in the three preceding arti- cles, the officer conducting the sale may, with the consent of the plaintiff, or of any person authorized by him, receive the bid of any bidder without requiring the prescribed deposit ; anu such consent must be in writing or given in presence of two competent witnesses whos2 names such officer must enter in his return. Ibid. ss. 21-23. HH2- If the bidder fails to deposit forthwith the amount required, his bid is disregarded, and the proceedings are resumed upon the previous bid. Ibid. s. 19. 1. On an opposition ajin de dislmire filed on the ground thai the only bidders present at the sale were the crier and the plaintiff — Held, that the defendant had no rif»ht to complain of there being no bidders as he could have produced them. Olivier v. IhHaiujer, 3 R. L. 4.'>7, S. C. 1828. 6JiiS. The sheriff, or other officer conducting the sale, is bound, immediately after the adjudication, to refund to every bidder except the purchaser, the amount deposited by each, and the deposit made by the purchaser is retained as ]iart of the purchase money. Ibid. s. 24. * " or Judge." 48 Vict. c-:rp. '20, s. 11, (Que.), t "or Judge." 48 Vict. cap. 20, 8. 11, (Que). OF BIDDING AND SALE, ARTS. 683-687. 899 1. Inscription en faux was filed by the plaintiff against a return of the sheriff to a writ of execution directed against property in the district of Beauhamois, on the ground that one Cameron, who testified to that effect, had bid immediately after the defendant, but his bid was refused and the property was adjudged to the defendant — Held, confirming the judgment of the court below, that the sale was null and that there should have been some formal intimation of the close of the sale. Woodman et al. V. Genier, 10 L. C. J. 87, S. C, 3 L. C. L. J. 120, Q. B. 1867. 2. At a sale under execution by the sheriff there can be no sale and adjudication unless the bid have been accepted by the knocking down of the hammer, and therefore where a sale has been suspended, though without sufficient cause, the highest bidder cannot claim as adjudica- taire. Baker v. Young et al. d; liackwood et at., P. R. 26, & 3 Kev. de L6g, 393, K. B. 1810. 6S4* [The adjudication of an immoveable cannot be made before the expiration of a quarter of an hour from the time at which it was put up for sale, and after that delay, the officer before adjudging it must receive all other bids offered.] Hdric. Vte. des Imm. 187 ; C. P. C. 706. 6S5. The property must be adjudged to the highest and last bidder. Pothier, Proc. 220. 6S6* A person who has purchased as proxy for another, is bound to furnish the sheriff, within three days, with the names, quality and residence of his principal, and his power of attorney, or a ratification of his bid and purchase ; in default whereof he is held to have purchased in his own name. He is likewise held to have purchased in his own nanie, if the person for whom he acted is not known, cannot be found, is notoriously insolvent, or is incapable of being pur- chaser. Po Jiier, Proc. 223 ; Hc^ric. 188. 0^7. The purchaser is bound to pay the purchase money, or the balance thereof, within tliree days, after which delay ho is bound to pay interest. C. S. L. C. c. 85, s. 18 ; Pothier, Proc. 225. x il rit I ■'' ■ '. mi :i'» r;,- f Wi .. •) ' i '''M ;J::!i h^r -: liii 400 OF BIDDING AND SALE, ARTS. 688-689. 1 J ^, .»l OSS. Nevertheless, the plaintiff or any other creditor whose claim is mentioned in the certificate of hypothecs hereinafter mentioned, or who has filed an opposition in th(^ hands of the sheriff, may, on becoming purchaser, retain the purchase money !> the extent of his claim, until the juHfr- ment of distribution, provided ho furnishes the sherili with good and sullicient sureties for all damages that mighi re- sult to any party interested, in the event of tUe non [i'ia- ment of such sum ufl the court * may order sucii purcha^•( r to pay into the hands of the sheriff. 0. S. L. C. o. 85, as. 12, 13. 1, An obligation consented by tho purclifVier to the sheriff pcrs mall;, in Heu oi a. security-bond as required by law, is null and void. Diur^uii •■ 0()dc:i, 10 Q. 1.. 11. 70, S. C. 1BS3. 2. Where the t'l'-^i"'^-'^' hf-s retairied tho purchase monuy, and Iuik appealed from the judiiinoii, of disirilvition and put in security, a rcsalu for falfi'j biddin;.; caunoi. hp demanded ponding the appeal. Laloiule dil Latreillc v. Pi\r::.. Upon payment by the purchaser of the prict- of the adjudication, or, if he is a creditor, of so much thoi-coF ;is he is not entitled to retain, the sheriff is bound to give sueii purchaser a deed of tho sale made to him. Such deed must contain : 1. A designation of the writ under which the sale took pln,ce ; 2. The number of the cause, and the names, surnames, additions and residence of the parties ; 3. A description of the immoveable seized ; 4. A statement that all the formalities prescribed by law have been observed; 5. The timer and place at which the property was adjudged ; • " Or Judge." 48 Vict. cap. 20, s. 11, (Que ) OF RESALE FOR FALSE BIDDING, ARTS. 689-690. 401 6. The conditions of the sale, including those mentioned in articles 707 and 708 ; 7. A statement of the price at which the property was ad- judged and how it was paid ; 8. A conveyance of all the rights of the judgment debtor upon the immoveable. § 6. 0/ resale for false bidding. 090. Upon the sheriif s return that a purchaser has not paid the whole or a balance of his purchase money, nor given security when he may lawfully do so, the plaintiff may demand that the immoveable of which the purchase money thus remains due, be resold for false bidding upon the purchaser thus in default. This is done by a petition served upon the latter with the delays required for ordinary summonses ; and if the purchaser does not reside or has no domicile in the district where the adjudication took place, the service may be effected at the office of the prothonotary of the court from which the seizure issued. Ibid., ss. 18, •26. ■tl i;ty '^ -• r -i '■:',Jl ! I.' i\i'n 1. A false bidder is not relieved from his liabilities by a subsequent false bid higher than his, and sufficient to cover the first bid v/ith interest and the costs incurred by the sale. Dlais v. Learmonth et af. (& Gowen, 4 Q. L. R. 251, S. C. R. 1878. 2. No motion for an order to sell real property at folle enchh-e can be granted, unless notice of the motion has been given to the adjudicataire. Bolter V. Young etal. (6 divers, P. R. 22, K. B. 1810. 3. It is not necessary that the service of a rule {or folle enchhe be made personally upon the adjudicataire, nor that the motion be served upon him, Lafond v. Ouibord d- Malo v. Guibord. 10 L. C. J. 139, S. C. 1866. 4. A motion for a rule for folle emliire against a married woman, sepa- rate as to property, will be rejected, unless notice of the motion has been served upon the husband as well as upon the wife. Cloutier v. Cloutier, .0 Rh/aume & Dion, 10 L. C. R. 457, S. 0. 1860. 5. Where a rule for folle enchire obtained against a married woman, separate as to property, has not been served upon the husband, all the 26 F. c. 0. p. U" : . ■r, ' mk 402 OF RESALE FOR FALSE BIDDIKO, ART. 690. proceedings upon the application will be set aside as null and void. Jarry et vir V. The Trust and Loan Company of Upper Canada, 8 L. 0. J. 29, 12 L. C. R. 421, Q. B. 1862. 6. But a rule for folle encliire obtained against a married woman, separate as to property, which has been served upon the husband, is good and will be declared absolute, even though in the proceedings upon the application the husband was not mia en cause, nor any mention made of him for the purpose of authorizing his wife. Ibid, dc 9 L. C. J. 800, Q. B. 1864. 7. A rule for folle enchire may be granted, notwithstanding the death of the creditor prosecuting. Jttusell v. Foumier et a/. <6 McBain, 7 L. C. J. 299, S. C. 1863. 8. The motion for folle enchire must contain a description of the pro- perty to be resold. Nye v. Potter dt Drown db Anderson, 6 L. C. J. 23, S. C. 1860. 9. Any party whose claim appears of record may ask that the false bidder be condemned to pay the difference between the price at which he purchased, and the price finally obtained ; and as the judgment so obtained does not confer any portion of the sum on the party prosecuting it cannot be opposed by a tierce opposition of the debtor of such claim, who is the donor of the false bidder, and who has guaranteed him against its existence. Ross v. Corrigan, 7 Q. L. B. 91, S. 0. B. 1881. 10. A motion for folle enchire must be made to the Court. Sanclie, 4 L. N. 101, S. C. C. ^881. Belisle v. 11. In a rule for c^n^^mpt against a /o{ a^/tuiicataire to compel payment of the loss occasioneo "-^o sale of the property originally adjudged to him, it is not necessary w .uribe the property. Delisle v. Sanche, 26 L. C. J. 162, S. C. R. 1881. 12. A rule nisi for folle enclu're must contain a description of the land soufe^it to be sold at the folle enchire. Dickinson v. Bourque f I i-ffl m i-'^-ft VSK^ w ^1; ui>'' I 408 ' OF RETURN OF WRITS OF EXECUTION, ART. 700. C. S. L. C. c. 36, 88. 7, 26, 27 and Schedule B ; 25 V. c. 11, 8.4. ' 1. Where the certificate did not cover the time elapsed since the change of the division and the sale, the judgment of distribution was reformed so as to remedy the error thereby caused. Banque Nationale v. La Socu'te de Comtruction du Canada db La Banque Ville Marie, 2 L. N. 69, S. C. E. 1878. 2. The registrar is bound to enter in the certificate, all hypothecs registered against the parties who have been owners of the property sold during the ten years preceding the sale, and he cannot limit his certifi- cate to the entries of mortgages registered within such ten years ; and the registrar is liable to pay the amount of such mortgages as would have been collocated on the proceeds of the sale had he made a proper certifi- cate, and which have not been so collocated owing to his having neglected to furnish a proper certificate. The Trust and Loan Co. of Canada v. Dupras, 25 L. C. J. 239, Q. B. 1880. 3. A hypothec inserted in a registrar's certificate, and created by a person who had not been proprietor within ten years will be struck from the certificate on petition to that end, made by any of the parties to the suit, Armstrong v. Hus, 5 E. L. 397, S. C. 1874. Form No. 3«. In connection with articles 700, 935, 955. Certificate of the Registrar. Lower Canada, | County {or Kegistration Division) of j Privileges and Hypothecs registered in my office, which do not appear by the books therein to have been wholly discharged, and of which I am, under the provisions of the Code of Civil Procedure of Lower Canada, required to grant a certificate, at the instance of A. B. of (Esquire, or as the case may be) the applicant named in the annexed Notice of application for the confirmation of Title — or of C. D., &c.. Sheriff of the District of having mW OP RETURN OF WRITS OP EXECUTION, ART. 700. 409 •the execution of the annexed Notice of Sheriff's Sale, — or of E. F., &c., the party prosecuting the Licitation mentioned in the annexed Notice, — or of G. H. applying for such cer- tificate: — • First. Against the property to which the judgment of con- firmation- • o} the said Notice of Sheriff's sale — or the said Notice of Licitation is to apply, — or described in the application of the said G. H. ; the following, viz. : — a hypothec (or as the case may be) created by a {descrip- tion of instrument) between and {names and qualities of parties) bearing date the day of 18 , and registered on the day of 18 , passed {if the instrument he Notarial) before Notary Public and his Colleague, at , as to which no discharge is registered {or as the case may be, mentioning any par- tial discharge registered), and the sum which appears to be due for principal and interest secured by which hypothec appears to be $ , and the regis- tration of which hypothec has not been renewed {or was renewed on the day of 18 as the case may be.) And so on in the same form for any other pnvileges or hypothecs registered against such property. Secondly. Against parties who, within ten years next pre- ceding the date of the registration of the title sought to be confirmed as aforesaid, — or next preceding the date of the Notice of Sheriff's sale, — or next preceding the date of the Notice of sale by Licitation {as the case may be), — or next preceding the date of the application of the said G. H. — have been owners of the said pro- perty, the following, viz. : — A hypothec created, etc., {as under next preceding head.) •X' hi' J'i in W- til m I' I it f!'''i ''<■»■ ■ ■ H. -f i^i ; I'r :|--|:.-1 •fi''^^ rvij i"f M Mwm 1 \^i 410 OF RETURN OF WRITS OF EXECUTION, ART. 700, , Thirdly. {In case of demand of certificate under article 2177. > of the Civil Code.) Against G. H., of , etc., , the immediate author of the party who owned the said property at the commencement of the said ten years, the following, viz. : — A hypothec created, etc., (aa under preceding heads.) If there is no privilege or hypothec required to be cer- tified under any one or more of the foregoing heads, the Registrar icill, instead of the words, " the follow- ing, viz." insert the word " None." Until plar.s and hooks of reference, under articles 2168 andll&d of the Civil Code, are in force in the County or Registration Division, the Registrar may omit the first head. If the Registrar was not able to ascertain, from the books and documents in his office, who icere the owners of the property during the ten years aforesaid, or ivho was the author of the party who was the owner thereof at the commencement of the said ten years, he will add : And inasmuch as I was not able to ascertain, from the books and documents in my office, who all the own- ers of the property during the ten years aforesaid were {or who was the author, etc., stating the requi- site fact or facts ivhich he was not able to ascertain from the books or documents in his office), — I have therefore, as required by the said Act, ascertained by the affidavits of and , hereunto annexed, that was the owner of the said property in the year 18 {or, as the case may be, mentioning all the facts so ascertained) ; OP RETURN OF WRITS OF EXECUTION, ARTS. 700-701. 411 all which I hereby certify to all whom it may con- cern. Witness my hand at this day of ,18 0. K., Eegistrar of the County or Eegistration Division of 701* If the registrar cannot ascertain from the books and documents in his office, what persons were owners of the immoveable during the ten years which preceded the sale, he must diligently inquire of the neighboring proprietors and other persons well acquainted with the property, and such persons are bound to give him, in writing and under oath, such information as they are possessed of. The regis- trar, in his certificate, must mention the information he has thus obtained, and take care that every fact upon which his certificate is thus based is attested by two witnesses, whose affidavits, duly sworn to before him or any other competent officer, are annexed to such certificate. C. S. L. C. c. 8G, s. 8. Form No. 3T- In connection with article 701. Lower Canada, District of A. B., of , in the County (or Registrr.tion Division of {Farmer) maketh oath {or solemn affirmation) as follows : — That to the personal knowledge of this deponent {or affir- mant) A. B., of , was, in or about the year 18 in possession as owner of the following property {describe the property as in the foregoing Form), or if siich party was so tl ; ,: m™ . n;;!-i:?i ) r] 4 .'I'll m m -jr '■( :? , ( ,1, iM I \r'T{ Aim vfiW "■iii^ 412 OF RETURN OF WRITS OF EXECUTION, ARTS. 701-703. in possession of part only of the said property , say, was in or about the year 18 in possession as owner of {describe the part), forming part of the following property {describe the property as in the foregoing form, and if the property was in the possession of several persons during the ten years, declare in the same manner the time during which each of them has possessed the property or only portion of it, and the deponent (or affirmant) hath signed. E. F. Sworn {or solemnly affirmed) before me at this day of ,18 L. M. Eegistrar or Justice of the Peace for District of The words of the foregoing are to be varied so as to meet the circumstances of the cases in ivhich they are used. 703. If the immoveable in question was, during the ten years which preceded the sale, in another county or registra- tion division, of which neither the books, entries and docu- ments relating to such immoveable, nor copies thereof have been transmitted to the registry office of the county or registration division in which the immoveable was situate* at the time of the sale, the registrar states the fact in liis certificate ; and in every such case the sheriff shall obtain from the registrar of such other county or registration division, a certificate of all hypothecs registered while the immoveable was within such county or registration division, and the latter registrar likewise is subject to the provisions of the two preceding articles. Ibid. s. 10. 70SI. [After the plan and book of reference have been deposited in any registry office, conformably to the provisions of articles 2168 and 2169 of the Civil Code, the Governor may, by an Order in Council, change the form of certificate OF RETURN OF WRITS OF EXECUTION, ARTS. 703-705. 413 to be given by the registrar as hereinabove prescribed ; and every such order is published in the Canada* Gazette, and takes effect from and after the day therein named, provided such day be not less than one month after the pubUcation of such order. 704. In the case of resale for false bidding, the sheriff need not obtain a certificate of hypothecs if one has already been filed with the return made upon the first sale. 705. The sherifif is allowed, out of the moneys which he has levied, all costs incurred by him to effect the sale, and all fees belonging to his office, after they have been taxed by a judge or the prothonotary, and the cost of the certifi- cates of hypothecs ; and he must hold the balance subject to the order of the court. C. S. L. C. c. 85, s. 9 ; c. 36, ss. 2, 6, § 3, 7, 8. 1. TliG sheriff after a sale under execution of an immoveable has a right to place in his bill of costs the tax of one per cent, imposed by C. S. L. C. cap. 109, & 28 Vict. cap. 12; Armstrong v. Hun, 5 R. L. 396, S. C. 1874. 2. Where the sheriff after a sale of immoveables made his report, accompanied by the registrar's certificate and the bill of charges there- for, and the opposants considering the charges too high, asked for a rule against the sheriff, ordtring him to appear to have the charges taxed- - Held, that ho could not be proceeded against in consequence of the exces- sive nature of such charges, Stiasson v. Mullins <£• The Seminary of Mon- treal 6 L. C. J. 107, S. C. 1862. 3. Held, on appeni from the Circuit Court, that a aheriil conducting a judicial sale is liable for the cost of the registrar's certificate if he have ordered it before the day of sale, notwithstanding the provisions of C. B. L. C, cap. 36, dec. 18. Lambly et al. v, Qucsnel, 17 L. C. R. 264, Q. B. 1867. 4. The attorney ad litem upon whose fiat a writ of execution issues, is liable towards tne sheriff for his fees and disbursements. Boston et al. v. Taylor, 1 L. C. J. 60, 7 L. C. R. 329, Q. B. 1857. 'f t I >l m iff I i''' I ' Mr i i ■ Now " The Quebec Official Gazette." 31 Vict. cap. 13, b. 4. (Que.) 11 414 EFFECT OF SHERIFF'S SALE, ARTS. 706-708. 5. The sheriff can exact the fees of one contract only for all property sold to the same person at the same sale. Miller v. Lambert, 8 B. L. 447, B.C. 1871. 6. The sheriff cannot deduct from the proceeds of an immoveable the cost of the deed of sale and registration, such charges being payable by the purchaser. Boisseau v. Pilot, 1 L. C. E. 163, S. C. 1850. See Sterling et al. v. Darling d> Foivler, 1 L. C. J. 161, under art. 763 post. § 8. Of the effect of sheriff' s sale. 706. No adjudication is perfect until the price is paid, find then it conveys ownership from the time of its date. Pcthier, Proc. 226-7; H(^ric. Vte. des Imm. 118; 6 N., Denfz. 45-46. 1. An obligation in favour of a sheriff by which an adjudicataire pro- iiiiees to pay him the purchase price with interest, is against public order iiTjC: fche laws regulating the oflSce of sheriff, and is therefore null. Bcrard V Mathieu, 21 L. C. J. 234, Q. B. 1876. TOT- The purchaser takes the immoveable in the condi- tion in which it is at the time of the adjudication, without regard to deteriorations or improvements subsequent to the seizure. Poth. Proc. 218-9. TON. The adjudication is always without any warranty as to the contents of the immoveable, but it conveys all riglits which belong to it, and which the judgment debtor miglit have exercised, and also all active servitudes attr.ch- ed to it, even though they are not mentioned in the miautes of seizure. Contra : 2 L. C. R. 194 ; 9 L. C. R. 108 ; Dcs- JardiriH v. La Banqae da Paiple, 10 L . C. R. 325. 1. A purchaser at a sale of real estate under excution, oannot claim to be collocated on the proceeds od, 4 L. N. 45, S. C. 1881, 25 L. C. J. 107. See Degjardins v. Gravel, under art. 659 ante. See art. 549, supra. 713. The proceedings upon this application are the same as upon that for a resale for false bidding. § 9. Of the vacating of sheriff's sales. 714. Sheriffs sales may be vacated : 1. At the instance of the judgment debtor, or of any creditor or other interested person : If fraud or artifice was employed, with the knowledge of the purchaser, to keep persons from bidding ; If the essential conditions and formalities prescribed for the sale have not been observed ; but the seizing party can- not vacate the sale for any want of formalities attributable to himself or his attorney ; 2. At the suit of the purchaser : If he is liable to eviction by reason of some customary dower, substitution, or other right from which the property is not discharged by sheriff's sale ; 27 F. 0. 0. p. 1-i I' '/ 418 1,1 .# ^4 ■I. : . I I, I l! m% > * ill' VACATING sheriff's SALl.S, ARi . 714. If the immoveable iliffers so much from the description given of it in the minutes of seizure, that it is to be pre- sumed that the purchaser would not have bought hud he been aware of the diflerence. Poth. Proc. 28G, 240; H^ric. 187 ; 1 Pig. 780. 1. Where real property is sold under execution the adjudication can only be attacked by a perso i wlio was a creditor at the ti'ne of the sale, and, consequently, the traubferee of a creditor, previous to the nale, could not demand the nullity of the adjudication unless notice of the transfer had been duly signified to the debtor. Berard v. liarrette etux<& Lambert .jy h purchaser to pay a creditor the amount of his claim on <;onditicn ih'xl t.e refrains from bidding, is not a fraud such ae will annul the adjuuioation. Berard v. Barette et ux., 5 B. L. 703, S. C. 1874. 6. A sale by the sheriff of Montreal, at his own ofQce, of land situate in the parish of L' Enfant Je$iu, a duly erected parish for all civil purposes formed out of the parish of Montreal, is null and void, as such sale could be legally effected at the church door of the P. of L'En/ant Jesus only. Such nullity can be invoked by a hypothecary creditor by petition (without a writ of summons) duly served on all 'che parties interested. It can also be invoked by means of a,u opiposition filed after the sale and served on all parties interested, uiid containing all the allegations essential to a petition en nulliU de dJcrH. Fauteux v. The Montreal Loan d: SI. Co., 22 L. C. J. 282, Q. B, 1878. Confirmed in Sup. Ct. of Can.. 2 L. N. 424 ; but see now 42-43 Vict. c. 25, under art. 071 ante. See Phillipse V. Sanborn, 6 L. C. J. 252, 12 L. C. B. 408, supra under art. 671. 7. If an immoveable charged with an unexpired term of fifteen years of an emphyteutic lease be sold by the sheriff without mention of sucli VACATING sheriff's SALES, ARTS. 714-715. 410 enlarge in the minutes of seiisure, and if such oharge diminisheB the value of the property bo much that it is to be preHumed that the pur- chaser would not have bought had he been aware of it — the purchaner who is [prevented by notification and protest on the part of the lessees from obtaining possession of the immoveable during such unexpired term, may obtain the vacation of the sheriff's sale. Co$$iU et al. v. Lemitux db Rattray, 5 L. N. 10, 25 L. C. J. 817, S. 0. 1881. 8. A plaintiff who has caused a pieoe of land to be seized and sold as belonging to his debtor which really was the property of another, may apply, by petition, to have the sale annulled. Bigras v. O'Brien dk Mae- donald, 11 R. L. 876, S. C. 1882. 9. The purchaser petitioned to annul a sale of v dp^cribed as being 45x90 feet, instead of 80x90, which it really 'T cited C. C. P. 708 (Sr C. C. 2168. Sale annulled. Cmnp. d, . . meier V. Baktr et al. 24 L. C. J. 48, 2 L. N. 849, Q. B. 1871*, ... N. 67. 10. A sheriff's deed may be declared null upon improbation at the suit of a creditor who is interested. Though the sheriff's deed has been euregistered and the property haH passed into the hands of third parties by enregistered titles, if the deed from the sheriff is false in any par- ticular, it will be so declared in favour of a creditor of an annual rent of which mention was omitted ther^^in. Carpenter v. Dir\f, 6 Q. L. B. 811, Q. B. 1877. 11. Nullities or informalities in a delaittement cannot be invoked in an action to set aside a sheriff 's sale. Robert v. Northgravei, 8 L. N. 183, S. C. 1880. 12. When the immoveable sold was described by the sheriff as com- prising certain sub-divisions of an official number as marked on the cadattre, and as fronting on a projected street, and the official plan referred to indicated the existence of a street along the front leading to the highway, the absence of such street was held to be grounds for vacating the sale under C. C. P. 714. Moat et al. v. Moiian, 8 L. N. 294, 25 L. C. J. 218, Q. B. 1880. 13. Question of proof and of costs. V. Mcli'er, 3 L. N. 367-8, S. C. 1880. Commercial Muttial Building Society 715. The application must be made in the suit by a special petition, it must be served upon the seizing party and upon all other interested parties in the suit, and in other respects is subject to the rules of ordinary procedure. V ^ ■ : -h': m ■'::<.':: m ;•-( r: l^S: iS !MAGE EVALUATION TEST TARGET (MT-3) // {./ ^.^. ?'• ^.% ^< 4^ ^^ ^< 1.0 I.I 11.25 ■tt Ki 12.2 •" — "2.0 ^U4 -H Hiotographic Sdfflices Corporation 33 WIST MAIN STRUT WltSTIR.N.Y. I4SM (71«) •7a-4S03 '4St ** 5 49.0 OF OPPOSITIONS FOB PAYMENT, ABTS. 715-718. The party who prosecuted the seizure and sale has a pre- ferable right to contest any suit brought to vacate such sale ; and if he fails to do so within the prescribed delays any ether party may take up the contestation ; but the pur- chaser cannot, in any case, be condemned to pay the costs of more than one contestation. 1. The sheriff must be made a party to an action to set aside a sale ander execution made by him. Drapeau v. Fraser, 1 L. G. L. J. 95, S. C. 1865. 716« Applications on behalf of the judgment debtor to vacate sheriff's sales must be made within the same delays as are prescribed for appealing from judgments of the Superior Court. Pothier, Proc. 125, 265 ; Bowman v. Dawson <& Dawson, Montreal, 26th Sept., 1845 ; Le Prestre 2 Gent. p. 149, No. 9 ; 4 Henrys, p. 63. 1. Where a property, which had been judicially sold some time pre- viously, was about to be sold again in the hands of the purchaser, and the defendant in the first case by opposition aiin de distraire opposed the second sale on the ground of nullities in the first — Held, that ..n opposition would not lie to the second sale on account of nullities in the first, except where the nullity of the first had been regularly pronounced, and then only within the year from such first sale. Armstrong (6 Barrette v. Crebasta <& Armstrong, 2 R. L. 98, S. C. B. 1870. 2. The delay of service of a petition to vacate a sheriff's sale is the same as on an ordinary summons. Brown v. Demers, 7 L. N. 312, S. C. 1883. 717* Grounds of nullity of a sheriff'o sale may likewise be set up by the purchaser against whom an application is made for a resale for false bidding. § 10. Of oppositions for payment. 71S. The prothonotary is bound to keep a register in which are entered all returns by the sheriff to writs of exe- cution issued by the court, with mention of the amountb OF OPPOSmOMS FOR PAYMENT, ARTS. 718-720. 421 levied, of the oppositions made to the distribution thereof, [and of all claims filed as well in the hands of the sheriff as in the prothonotary's office.] 86th Eule of P., S. 0. 1. Where there were two oppoeants afin de conserver and the one con- tested the opposition of the other— Held, that such contestation formed a distinct issne quoad such parties, and that all documentary evidence raised by the issue, relative to such contestation, must be filed by the opposants, and it is not sufficient that such evidence be already filed by parties to the record. Kelly v. Fraser d; Divers, 2 L. C. B. 368, S. C. 1852. 710. Oppositions for payment are necessary only for such claims as the registrar is not bound to insert in his certificate of the hypothecs charged upon the immoveable sold, as required by article 700. [They are not necessary for claims resulting from muni- cipal or school taxes, or assessments for the building or re- pairing of churches, parsonages and church-yards ; and it is sufficient that a statement of such claims, certified by the secretary-treasurer, or other authorized agent of the corpo- ration, be filed in the hands of the sheriff or prothonotary. Claims for arrears of cens et rentes or other rents consti- tuted in their stead, may likewise be made by filing with the sheriff or prothonotary a statement thereof under the signa- ture of the seignior, or creditor, or of his agent.] 720* Oppositions for payment may be filed with the sheriff, if he has not yet made his return, or in the office of the prothonotary where the return is made, within six days after the return. After this delay, they cannot be filed without permission of the court,* and upon such conditions as it imposes. 83rd Eule of P., G. S. L. G. c. 85, s. 4, § 3, and Schedule A. 1. An opposition afin de conserver may, on payment of costs, be filed at any time before the homologation of the report of distribution. Thivierge V. Boivin, 3 Bev. de L6g. 474, E. B. 1812. * " Or Judge." 48 Vict. cap. 29, a. 11 (Que.). ■v; * ' M I.: I '> I 7 Mf (j \ \!i **j| 422 DISTRIBUTION OF MONEYS, ARTS. 720-724. 2. On an opposition afin de coruerver by a transferee of seigniorial rights — Held, that such an opposition was merely a conservatory process, and did not require that noUoe of such transfer should have been made. Lamothe tt al. v. Talon, 1 L. C. J. 101, Q. B. 1867. 8. On the contestation of an opposition afin de conserver — Held, that such an opposition could be filed by permission of the court at any time before the homologation of the report of collocation, on the opposant paying such costs aa would be incurred by the reformation of the report and twenty shillings currency. Woodman v. Letoumeau db Letoumeau v. Hubert it Lemieux ik Rapin, 8 L. C. J. 27, S. C. 1858. 4. A claim cannot be received after the delay fixed without permission of the court. Shortis v. Normand, 3 Q. L. B. 882, Q. B. 1877, post, under art. 761. TSl* No costs are allowed the opposant upon oppositions for the payment of any of the claims mentioned in article 719. 27-28 Vict. c. 39, s. 6. '722. All oppositions for payment must contain an elec- tion of domicile, as prescribed in article 583. 87th Bule of P. 728. When there is no opposition, and the certificate does not establish the existence of any hypothec, a judg- ment may be rendered by the prothonotary in the name of the court, upon application made in vacation, ordering the moneys to be paid to the seizing party, according to their sufficiency and to the amount of his claim. ^ S. L. G. c. 83, s. 147. § 11. Of collocation and the distribution of moneys. 724. Between the sixth and the twelfth day after the sheriffs return, certifying that he has levied moneys, the prothonotary is bound to prepare a scheme of collocation or distribution, and to report the same. 90th B. of P. If, however, the sheriff has been unable to return the certificate of hypothecs, the delay above prescribed is only reckoned from the filing of such certificate. DISTRIBUTION OF MONEYS, ARTS. 725-728. 428 725. The report of distribution must mention the names and designation of the parties plaintiff, defendant and oppo- sant, the amount levied, the person in whose hands it is, and the filing of the certificate of hypothecs. 1 Pig. 816. 726* Each collocation must form a separate article, in numerical order, and must mention whether the claim hears upon all the moneys to be distributed or only upon the price of a particular immoveable or part of an immoveable, the nature of the claim, and the date of the title and of its registration. Ibid. 818. 727« In preparing the report of distribution the pro- thonotary must act according to the apparent rights of the parties, as shewn by the certificate of hypothecs filed by the sheriff, by the oppositions, claims and the other docu- ments forming part of the record, and in conformity with the rules contained in the Civil Code, in the titles Of Privileges and Hypothecs, and Of Registration of real rights, and with those hereinafter declared. Ibid. 728. Law costs must, .however, be collocated in the following order : 1. Costs of the report ; 2. Commission on amounts deposited, and tax upon the amount levied, if any is due, and costs of seizure and sale, if they have not been retained out of the moneys levied ; 3. Costs incurred upon the writ of execution against immoveables, and such as may remain due upon the discussion of the moveables ; 4. Costs of cancelling hypothecs, or of establishing that they are extinguished ; 5. Costs of affixing seals, and of making any inventory required by law ; 6. Costs incurred either in the court below or in appeal, upon proceedings incidental to the seizure and necessary to effect the sale of the immoveables ; f mmm Mm il li' 111 ii K "I 424 DISTRIBUTION OF MONEYS, ART. 728. 7. Costs of suit, as provided in article 606. 1 Pig. 810 ; Poth. Proc. 232 ; Hyp. 451 ; Couchot, 163 ; Hdric. c. 11, s. 1, Nos. 8-4 ; Grenier sur I'Edit de 1771, p. 871 ; C. S. L. C. c. 37, s. 8 ; C. N. 2101-4. 1. An opposant cannot be collocated for and paid by privilege in preference to a duly registered hypothecary creditor, the costs of his opposition which was maintained, and for the payment of which the property of the adverse party was seized and brought to sale. Bruneau v. Oaynon dr Oaynon, 4 Q. L. R, 816, S. C. R. 1878. 2. Where the plaintiff in an action had been collocated for his full costs in preference to his landlord's privilege for rent — Held, on a con- testation of a collocation, that the practice has been to refuse the plain- tiff such privilege for costs. Kerry et al. v. Felly et at. (6 Watson, 6 L. C. J 293 & 13 L. G. R. 163, S. C. 1862. 3. A plaintiff in a case has a right to be collocated by privilege for all the costs of his suit, when such costs are necessary to obtain the seizure and sale of the defendant's real estate. Oameau v. Fortin et al., 2 L. C. R. 116, S. C. 1852. 4. On the contestation of the report of collocation in a ^arsonal action — Held, that the plaintiff was entitled to be collocated for the whole of his costs, and that in preference to the lessor of the house in which the goods were seized. Jervis v. Kelly <& Marquis, 4 L. C. R. 75, S. C. 1853. 5. A seizing creditor of an unprivileged debt is only entitled to be collocated by privilege upon the proceeds pf a judicial sale for the costs of an ordinary action by default settled at the sum of £4 9b. Denis v. St. Hilaire, 5 L. C. R. 386, S. 0. 1855. 6. There is no privilege for costs of suit in the distribution of moneys levied by the sale of an immoveable property at the suit of the plaintiff whose claim is not privileged. Lalonde v. Rowley Or Judge." 48 Vict. cap. 20, s. 11 (Que ). DISTKIBUTION OF MONEYS, ARTS. 781-784. 427 781* When a prior claim is undetermined and unliqui- dated, the prothonotary, out of the disposable moneys, must roserve a sufficient sum to cover it ; and such sum remains in the sherifiTs hands until the claim is liquidated, or until the court otherwise orders. Houy vet, No. 198 ; G. S. L. C. c. 86, B. 20. 789- Hypothecary claims due with a term of payment become exigible in consequence of the discussion and sale of the immoveable subject to them, and are beneficially col- located, but if they do not bear interest, the creditor is then collocated and receives the amount of his collocation on condition that he shall give and after he has given security to pay interest, until the term expires, to the subsequent creditors mentioned in the report ; and if he 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. 2 Bour. 722; 15 Guy. Bep. 438; Lac. Vo. Int^rSt No. 7 ; Both. Gond. indeb. No. 152 ; H^ric. 157. 788> Glaims for the capital of life-rents are determined and collocated according to articles 1914, 1915, 1916 and 1917 of the Civil Gode. 784* Interest and arrears of rents preserved by regis- tration of a claim are collocated in the same rank with such claim, up to the day on which the immoveable was adjudged. [A creditor whose name is registered is collocated, in the same rank, for such taxed costs only as are incurred in the court in which he originally obtained judgment for the recovery of his claim. His costs in appeal rank only according to the date of their registration.] 7 V. c. 35 ; Lac. Vo. Int^r^t, No. 7; Both. Broc. 252-8. i'k t: m ( . -'11 I I \^>' m u ^ i U 428 DISTRIBUTION OF MOMQYB, ART8. 784-788. l ■ A-! Under no oiroamstancM can a hypothecary creditor be collocated for and paid interest beyond the date of the adjudication of the property hypothecated. Oentreux, in re, v. Gordon et al., 28 L. C. J. 221 ; 9 B. L. 698, S. O. B. 1879. 785. When several immoveables, or pieces or parcels of land separately charged with different claims are sold for one and the same price ; When a vendor's claim comes in concurrence with a builder's privilege ; or, When a creditor has some preferential claim upon part of an immoveable, by reason of improvements or other cause ; And the disposable moneys are insufficient ; The prothonotary, if the record does not afford him sufficient data to perform the relative valuation himself, must suspend the distribution and report the facts to the court.* 736. Upon the application of one of the parties inter- ested, after notice given to the others, the court f orders experts to be named in the ordinrry manner, in order to establish the respective values of the immoveables, pieces of land, or improvements, and the proportion which should be allotted to each out of the moneys to be distributed. 737* The relative valuation being established upon the report of the experts, the case is sent back to the prothono- tary, in order that he may proceed to determine the order of collocation and the distribution of the moneys. 1 Pig. 810, 811. 73S. The registrar's certificate is prima facie evidence of the facts therein mentioned ; but it may be contested on the ground of error or fraud on the part of the registrar or in his books ; and in such case the courts may, if the ends of • " Or the Judge." 48 Vict. cap. 20, s. 11 (Que.). + " Or the Judge." 48 Vict. cap. 20, b. 11 (Que.). J " Or the Judge." 48 Vict. cap. 20, s. 11 (Que.). DIBTRIDUTION OF MONEYS, VRTS. 788-741. 429 justice require it, order any interested person to be called in to answer the contestation, which must also be served upon the registrar. Such interested parties are called in by being served with a rule of court ; and this service may be either personal or at domicile, or by advertisement in newspapers if the per* sons are absent, in the same manner as upon ordinary sum- mons. C. 8. L. C. c. 86, 8. 19 ; 25 V. c. 11, s. 5. 78V* Any party to the cause, or any person appearing voluntarily, may produce any acquittance or document of a nature to establish the discharge or extinction of a claim mentioned in the certificate of hypothecs, provided it is ac- companied with such proof as would be required to justify the registrar in receiving it ; and the court or judge may thereupon correct the certificate, or order it to be sent back to the registrar for correction, or else the registrar may transmit to the prothonotary a supplementary certificate in amendment of the former one. 25 V. c. 11, s. 5. 740* The registrar is deemed to be an officer of the court for all that concerns such certificate of hypothecs, as also for the taxation of his fees and expenses for services rendered in regard thereto. Ibid. s. 6. 741. Any person interested in the distribution of moneys may, either in term or in vacation, even before contestation, cause the defendant or the creditor, or the ('<)btor of any hypothecs mentioned in the registrar's certificate or in any opposition, or any other person having cognizance of the facts to be examined before the judge, or in his absence, be- fore the prothonotary, in order to establish whether such hypothec has not been discharged, in whole or in part, or otherwise extinguished, or to prove any other fact material to the case ; and any person thus examined is bound to dis- close the existence of any receipt, account, document or writ- ing, relating to such discharge or extinction, and to produce \.l ) ! H I I ]">>' I 3,ii ii i'ili (I 480 DISTRIBUTION OF MONEYS, ARTS. 741-742. the same if it be iu his power ; and if it appears by the certificate of hypothecs, or by any opposition in the case, that such person is the creditor of the hypothec, his admis- sions constitute proof. A person thus examined cannot ask to be taxed as a wit- ness if he is interested in the distribution, nor can he ask to be paid his travelling expenses before answering. 27-28 V. c. 80, B. 7. If the hypothecary creditor of the person who was in pos- session of the immoveables in question at the commence- ment of the ten years next peceding the day of the judicial sale, or his legal representatives, cannot be found so as to be summoned and examined, then upon the affidavit of any person swearing that be has reason to believe, and verily believes, that the hypothec has been paid, discharged or ex- tinguished, the court or judge may order such creditor, or his representatives, to be summoned in the same manner as absentee defendants, and if such creditor or absentee defendants fail to appear the distribution takes place in the same manner as if the hypothec had not been mentioned in the certificate of the registrar. See Leduc v. McCarthy, 19 L. C. J. 107, post under art. 761. '743. The parties are allowed eight days to contest the report of distribution, reckoning from the day on which it was entered on the posted list, if such day be a Monday, if not, the delay is reckoned from the Monday following. 92 Rule of P., 2 L. C. R. 9. 1. A person opposing will be allowed to contest the report of collocation and distribution after the delays have expired, where it is established by affidavit that he was interested, and that the party collocated appears on examination of his opposition not to be entitled to the amount of his collocation. Clapin v. Nagle d- Nagle, 4 L. C. J. 280, 8. C. 18(50. 2. Permission to contest after the delays have expired will not be granted because of the omission having been due to another's inadver- tence or oversight. Forgyth v. Morin et a/., 2 L. C. J. 59, S. C. IS-IT. DISTRIBUTION OF MONEYS, ARTS. 742-748. 481 B. On oauae Hhnwn and on payment of ootta, an intoroated party will be allowed ivt any time to oontoMt. I'revott v. DeUulernier* <(■ Frothivifham, B L. 0. J. 105, g. C. 18S0. 4. The order of ooUocation under a judgment of dintribution can only be changed by contesting the judgment itself within eight days from the notice, or after permission of the court, but before homologation. One cannot by simple petition ask that a collocation made of a claim by an homologated judgment be reduced, and that a supplementary distribution be granted, when such demand is based on the fact that the creditor has been collocated for more than two years' interest besides the current year, and to the prejudice of the subsequent creditors. The petition for a supplementary distribution can only be allowed when it in alleged and proved that a creditor has been collocated for that which is not due him, or for that which he has already received. Lamoureux v. Peloquin ■■■ P. '749» After the delay for contesting the report has expired, the prosecuting party, or upon his failure to do so within two days, any other party interested, may move for the homologation of the whole report, if there is no contes- tation, or of the part which is not contested or is not affected by the contestations, when these are only to a part. Such motion cannot, however, be made until after notice thereof has been posted up in the prothonotary's office during at least four days. — 93rd Bule of P. ; 1 Pig. 819 ; H^ric. 198, C. S. L. C. c. 83, s. 147. 1. Upon the distribntion of money levied in execution — Held, that the attorney of the seizing creditor was entitled to the fee allowed upon homo- logation of the report of distribution. Kerry et al. v. Felly et al., 13 L. C. B. 163, & 6 L. C. J. 293, S. C. 1862. 2. No collocation can be homologated which has not been previously contained in a report of distribution regularly made and filed, so as to enable the parties to contest it. The Eastern Townships Bank t. Pacaud, 17 L. C. R. 126, 2 L. 0. L. J. 270, Q. B. 1866. 790* The homologation may be granted either by the court, or by the prothonotary, in term or in vacation, un- less there is a counter-application or a contestation, in which case the court alone can decide. C. S. L. G. c. 83. s. 147. 1. The court will not homologate the report if the price have not been paid into the hands of the sheriff. Lebois v. Gagn^, 3 Bev. de L6g. 472, K. B. 1818;; Boucher v. Beaudoin, 8 Bev. de L6g. 475, E. B. 1821. See Eastern Township Bank v. Pacaud, under art. 494 ante. 751. [If in any distribution, whether homologated or not, a creditor is collocated for any sum that is not due to him, the court, upon a declaration of the creditor to that effect, mry order a supplementary distribution of the sum thus allowed him. If the person thus collocated fails to declare what he has previously received, the judge may, upon the application of any party interested and on production of an authentic dis- If' DISTRIBUTION OF MONEYS, ABT. 751. 435 charge, order a suppV nentary distribution of the amount of such collocation. If there be no autLuntic discharge the person thus collo- cated musG be called in, upon application to the court or judge, and in such case the provisions of article 741 apply. If the person collocated has no known domicile in Lower Canada ; or if he is dead and his legal representatives are not certainly known, the judge may, upon a certificate of the fact, order them to be called in in the manner provided in article 68.] Form No. 38. In connection with article 751. Lower Canada,) In the Superior Court. District of J (Date.) Present : X. Y., Judge. A. B., Plaintiff, C. D., Defendant, and E. F., Collocated Creditor. 'M f;f \,'^ '.'.I , I ( I ., if I ( If \\fV. > )'. It is ordered that the said £. F. {his quality and domicile) or his legal representatives do appear before this court on the day of in order to answer the contestation of his claim. By order, E. S., Prothonotary. 1. A sapplementary distribution will be ordered after homologation of the report on proof of error in the registrar's certificate and of the fact that no hypothec exists in favour of the party collocated. Tardif d: Oin- grot di Jobin, 8 B. L. 465, S. C. 1871. 486 OP SUB-OOLLOOATION, ARTS. 761-768. 2. Articles 741 & 761 of the Code, authorizing any person interested in the distribution of moneys to come in and make proof of the discharge of any hypothec mentioned in the registrar's certificate, or in any opposi- tion, do not apply where the creditor, who is alleged to have been collo- cated for a sum not due, has actually received the money, after judgment homologating the report of distribution. Leduc v. McCarthy, 19 L. C. J. 107, Q. B. 1874. 752. When no opposition for payment has been filed and no claim appears by the registrar's certificate, or when all the parties consent, the moneys levied may, without the formality of a report of distribution, be adjudged by the prothonotary to the parties entitled to them, upon a motion to that effect made either in term or in vacation. G. S. L. C. c. 83, s. 147, §8. § 12 Of sub-collocation. 753* Any creditor of a person who is entitled to be col- located, or is beneficially collocated upon moneys levied, has a right to file a sub-opposition, demanding that, to the extent of his claim, the sum accruing to his debtor be not paid to such debtor, but to him. He cannot, however, exercise this right unless his debtor is insolvent, or his claim carries execution. Poth. Proc. 235 ; 2 Pig. 737-822 ; 1 L. C. R. 498 ; 10 L. C. R. 309. 1. Property of certain minors having been taken in execution, the tutor of the minors filed an opposition, and was collocated for a certain sum. The appellant, on the day fixed for the homologation of the report, moved for leave to file an opposition afin de conterver en sous ordre, founded on a judgment against the father of the minors. The motion was rejected on the ground that the judgment had ceased to be executory, and that being presented at so late a stage of the proceedings it was calcu- lated unjustly to deprive the minors of the use of moneys of which they were in need. Doyle et al. v. McLean es qual., 10 L. C. B. 809, S. C. & Q. B. 1860. 2. An opposition en sous ordre cannot be received unless a titre executom or the insolvency of the party against whom such opposition is made be set up and alleged in the opposition. Venner v. Bernard et al. di Patton, 1 L. C. B. 498, S. C. 1851. OF THE . \YMENT OF MONEYS LEVIED, ARTS. 758-757. 437 3. On a motion to reject an opposition en sous ordre — Held, that suoh opposition is a proceeding in tho nature of a saiaie arrit and must be either founded on a judgment or supported by an affidavit, as in a case of an attachment before judgment, and also that money )^fAA. by the defen- dant to the sheriff in satisfaction of an execution was the property of the plaintiffs, and not susceptible of beiug treated as money levied under such a writ, and that the sheriff had no right in such case to deduct his com- mission and court house tax. Stirling et al. v. Darling (& Fowler, 1 L. C. J, 161, S. C. 1867. 4. An opposition en sous ordre which is not based on a judgment cannot be maintained. The Mayor, etc., of Montreal <& Bissonette db Grand (& Bis- sonette, 9 L. C. J. 280, S. G. 1865. 5. In the absence of an allegation of insolvency in an opposition en soim ordre, and of proof of that fact, the court will dismiss the opposition with costs, although no distinct issue be raised on the point by the contestation filed. Cliarbonneau <& Gladu <& Paquette et al., 9 L. C. J. 107, S. C. 1865. '754« Sub- oppositions must be served upon the party -whose moneys are thus stopped. 755* The sub-collocation may follow the collocation, and be included in the general report, or it may form a separate report, and is subject to the same rules and formalities ; but the costs thereof are borne by the creditor whose collocation is thus opposed. Poth. Proc. 235. 750. If a debtor fails to exercise his rights and claims, his creditors may intervene iu the distribution in order to exercise the rights of such debtor, and in the same manner and with as little expense as the debtoi' himself could have done. Ibid. § 13. Of the payment of moneys levied. 757* At the expiration of fifteen days after the date of the judgment homologating a report of distribution, the sheriff is bound to pay to the parties entitled thereto, the moneys which he has received. 25 Geo. III., c. 2, s. 29. m ill" ^''H'•:;ll ! 1 rl;;!' -m 488 OF THE PAYMENT OF MONEYS LEVIED, ABTB. 758-760. 758. The amount of the collocation of a creditor men- tioned in the registrar's certificate and who has not filed an opposition, remains in the hands of the sheriff until such creditor or his legal representatives demand the same, and give a valid acquittance therefor. G. S. L. C. c. 86, s. 22. See art. 597 ante. 1. On a rule for contrainte par corps against the sheriff as guardian of things seized, where the latter had been allowed to make proof of the value of the things seized by the admission of the plaintiff himself— Held, that a tender to the attorneys ad litem of the plaintiff, where the latter resides beyond the limits of this province, of the value so proved and of the costs of the rule (which has been dismissed and an appeal sued out in consequence), made before service of appeal, would entitle the sheriff to the costs of the appeal, where the judgment in appeal does not award a larger amount than that tendered. Leverson et al. v. Boston, 3 L. G. J. 223 & 9 L. G. B. 238, Q. B. 1859. 2. Where a bailiff resident in another district, and charged with the execution there, of a writ of execution issued out of the district of Montreal, fails to comply with the exigencies of the writ, he is liable to coercive imprisonment in the latter district. Oncedinger et al. v. Derouin et a^, 21 L.'G. J. 220, 1 Legal News, 212 S. G. 3. The sheriff is responsible for goods seized by him in the same way as the guardian, except where a solvent guardian has been appointed by the defendant whose property has been seized, and the sheriff proves that such guardian was solvent or reputed so to the extent of the value of the goods seized at the time of his appointment. Irwin v. Boston et at., 2 L. C. J. 171; 6 L. C. R. 397, 7 L. C. R. 433, Q. B. 1857. 4. The sheriff is responsible for all sales of personal effects whether he received the money or not, for he ought not to part with an article he sells until he receives the price. Chiay v. Baily, 2 Rev. de L£g. 473, K. B. 1819. 759. The sheriff, or other officer performing bis functions, may be held by coercive imprisonment to the payment of the moneys by him levied and received. G. S. L. C. c. 87, 8. 24. 760. If the moneys levied, or a portion thereof remain in the hands of the purchaser, the judgment of distribution must be served upon him, and upon his failure to pay to OF THE PAYMENT OF MONEYS LEVIED, ARTS. 760-762. 439 the sheriff, or to the parties interested, within fifteen days from such service, the amounts necessary to satisfy the claimants who have priority over him, the latter may demand the resale of the immoveable upon him for false bidding. 761* [Any party aggrieved by a judgment of distribu- tion may seek redress by means of an appeal, or a petition in revocation, if there are grounds for it, whether he has appeared in the suit, or, his claim being mentioned in the certificate of hypothecs, he has not appeared.] Any creditor mentioned in the registrar's certificate who has not appeared in the cause, may, moreover, within fifteen days, seek redress by means of an opposition to the judgment. 1. Any party aggrieved by a judgment of distribution should seek redress by means of an appeal or of an opposition to the judgment within fifteen days, and not by an independent action. McDonell et al. v. Buntin, 7 L. N. 130, 3 Q. B. R. 362 ; M. L. R. 1 Q. B. 1, Q. B. 1884 ; 27 L. 0. J. 73, S. C. 1883. 2. The right of opposition given by this article does not take away the right of appeal. Shortis v. Normand, 3 Q. L. P. 382, Q. B. 1877. 3. Persons whose mortgages are mentioned in the Registrar's certficate, are entitled to appeal from the judgment homologating the report of col- location, although they had not contested tho report in the Court below. A party whose claim was filed after the delays fixed, should not have been collocated. Shortis et al. v. Normand, I Legal News, 86, Q. B. 1877. See ante, art. 494, and post art. 1116, as to right of appeal. 763* [In the event of a judgment of distribution being reformed, or of the 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 tfle sale, whatever sums may 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.] Poth. Proc. 227 ; H^ric, 294. Mi w if>^ \ I ■/' '! ■ i; .t-A 'i ''r'" ]i-v?: r -f:- j.s ~7TVJ\ 5?.> i^ 440 OP ABANDONMENT OP PROPERTY, ARTS. 768-764. SECTION VI. OP ABANDONMENT OP PROPERTY. 763. (As amended by 48 Vict. c. 22, s. 1). Any debt arrested under a writ of capias ad respondendum, and every trader who has ceased his payments, may make a judicial abandonment of his property for the benefit of his creditors. In the absence of capias no abandonment can be made, if the debtor has not been so required as hereinafter provided. 76»a. (Added by 48 Vict. c. 22, s. 1). Every trader who has ceased his payments may be required to make such abandonment by a creditor whose claim is unsecured, for a sum of two hundred dollars and upwards. See 48 Vict. c. 20, s. 4, under art. 1, ante. '764. This abandonment is effected by filing in the pro- thonotary's office a statement, sworn to by the defendant, and making known ; 1. All the moveable and immoveable property of which he is possessed ; %. The names and addresses of all and each of his creditors, the amount of their claims, and the nature of each claim, whether privileged, hypothecary or otherwise. Such statement must be accompanied with a declaration by the debtor that he consents to abandon all his property to his creditors. 0. S. L. C. c. 87, ss. 12, 13. 48 Vict., c. 22, s. 2. Article 764 is amended by striking out the words " in the prothonotary's office," and by adding at the end of the arti- cle the following paragraph : " The abandonment is made in the office of the protho- notary of the Superior Court of the district wherein issued the capias, and in the absence of capias, of the district of OF VBANDONMEMT OF TROPEBTY, ARTS. 764-766. 441 the place where the debtor has his principal place of busi- ness, and, in the default of such place, of the place of his domicile." 1. Held, on petition of defendant, that causo boin({ shown he would be permitted, even five months after judgment, to ille the statement of affairs required by C. S. L. C. cap. 87, sec, 12, and that plaintiff 'a petition for imprisonment would be dismissed in consequence of such permission. Henderson v. Lemieux, 17 L. C. R. 414, S. C. & S. C. R. 1867. 2. The mere filing of the statement in conformity with art. 764 does not entitle the party arrested to be rr>'iaBed from custody, such statement being subject to attack by any creditor. Bruckert v. Moher, 21 L. C. J. 26, 8. C. 1876. 3. A defendant arrested under a capias ad respondendum who has given special bail not to leave the heretofore Province of Canada, under C. C. P. 824, is not liable to contrainte par corps if he neglect to fyle the statement, and make the declaration of abandonment mentioned in C. C. P. 764, within thirty days from the date of the judgment maintaining the capias. Cossitt et al. v. Lemieux, 6 L. N. 254, 2 Q. B. R. 14, Q. B. 1880, 4 L. N. 262, 8. C. 1881. 765. [The debtor must give the plaintiff notice of the filing of the statement and of his declaration of abandonment.] 48 Vict. c. 22, s. 3. Article 765 is repealed and replaced by the following: 765. The debtor must give notice of the abandonment by inserting an advertisement to that effect in the Quebec Official Gazette, and by a registered notice sent by mail to the address of each of his creditors. The notice addressed to the creditors must contain a list of the creditors of the debtor, mentioning the amount due to each. In default of such notices being given by the debtor, any creditor may give them himself. 766. A debtor who has been admitted to bail is bound to file this statement and declaration within thirty days from the date of the judgment rendered in the suit in which he was arrested. I )i 'B \^' r f4 ^ ' .i 1 1 I ii i I I I. SI It ^'♦w 442 OF ABANDONMENT OF PROPERTY, ART. 766. Any person condemned to pay a sum exceeding eighty dollars, exclusive of interest from service of process and costs, for a debt of a commercial nature, is likewise, after such moveable and immoveable property as he appears pos- sessed of have been discussed, bound, upon being required to do so, to file a similar statement. Ibid, ss. 12, 18. Form No. 89. In connection with article 766. To C. D., of (itate here the address and calling of the party). Defendant in the cause wherein the Judgment, an authen- tic copy whereof is hereunto affixed, has been rendered, Take Notice that the undersigned, A. B., Plaintiff in the said cause, hereby demands of you, under and by virtue of the provisions contained in article 766 of the Code of Civil Procedure of Lower Canada, a copy of which article is here- unto subjoined for your further information in the premises — that, within thirty davs from the personal service to be made upon you of the foregoing certified copy of the said Judgment, together with this Notice, you do make and file the statement prescribed in the said article, in the manner and under the penalties therein set forth. Done at , this day of , 18 . A. B. Plaintiff. {Here insert a copy of the said Article.) 1. A debtor who has given special bail is not bound to file a statement and make the declaration mentioned in art. 776. Poulet v. Launiire, 6Q. L. B. 314, S. C. 1874. OF ABANDONMENT OF PROPERTY, ARTS. 766-769. 448 2. In an much as the G. 0. P. failed to attach any penalty whatever (or not filing the statement required by art. 706, the penalty provided by art. 2274 0. O., and by ohap. 87 of the Con. Stat, of L. G. seo. 12, § 2, cannot be enforced. The effect of art. 1360 0. 0. P. beinfi to repeal the provisions of the statute and of the Givil Gode. Motion v. Carter, 20 L. G. J. 159, Q. B. 1862 ; 8 Q. L. B. 838, 6 L. N. 189, 27 L. C. J. 167, P. G. 1888. 707* If the debtor is in gaol he may file such statement and declaration at any time. Ibid. s. 18. 708* (As replaced by 48 Vict. c. 22, s. 4). Immedi* ately after the filing of the statement, the prothonotary appoints a provisional guardian, whom he, as far as pos- sible, selects from among the most interested creditors, who, either personally, or by a person whom he delegates for that purpose, takes immediate possession of all the pro> party liable to seizure, and the books of account of the debtor. The guardian may summarily dispose of any perishable goods, and may take conservator;; measures under the direction of the judge, o. in the absence of the latter, of the prothonotary. The abandonment being made, the court or the judge, upon demand of a party interested, and after taking the advice of the creditors of the debtor convened for that pur- pose, appoints a curator to the property of the debtor. Inspectors or advisers may also be appointed at this or any subsequent meeting. The meeting shall be convened within a short delay, and in the manner which the court or judge deems suitable. The record of the proceedings upon the abandonment is then transmitted to the prothonotary of the Superior Court of the district in which the debtor has his place of business. 709. (As replaced by 48 Vict. c. 22, s. 4). After the abandonment, any proceeding by way of attachment for rent, or attachment in execution against the move- [i m '■iwM i.r.. :' mmM 1- '-'"'■' ^ii fi]iW Awiti 'iKHJ t 4 it 444 OF ABANDONMENT OF PROPBBTY, AAT8. 769-772. ables of the debtor is suipendod; and the guardian or the curator has n right to take possesBion of the goods seized, upon serving by a bailiff a notice of his appoint- ment upon the seizing creditor, or upon his attorney or the bailiff entrusted with the writ. The costs upon such attachment made after the notice, or, in the absence of such notice, incurred by a creditor after he had knowledge of the abandonment, either personally or by his attorney or by the bailiff, and in all cases the costn of attachment made eight days after the notice given by the debtor or the curator, cannot be collocated upon the pro- perty of the debtor when the proceeds are distributed in consequence of the abandonment. 770. (As replaced by 48 Vict. c. 22, a. 5). The curator is bound to make his appointment known by an advertisement in the Quebec Official Gazette, and by a registered notice transmitted by mail to the address of each creditor. In such notice the curator shall call upon the creditors to file their claims with him within a delay of thirty days. 770a. (Added by 48 Vict. c. 22). The curator ap- pointed may be required to give security, the amount whereof is fixed by the court or judge, and he is subject to the summary jurisdiction of the court or judge. Such security may be given in favour of the creditors of the debtor generally, without mentioning their names. 771* The curator takes possession of all the property m6.:tioned in the statement, and administers it until it is sold in the manner hereinafter mentioned. Ibid. a. 17, §§ 1.2. 772. (As amended by 48 Vict. c. 22, s. 6). T};e cu'-ator has likewise a right to receive, collect and recover any other property belonging to the debtor, and which the latter has failed to mclude in his statement. OF ABANDONMENT OF i>HOPBRTY, ART. 772. 445 He may sell the raoveables comprised in the statement, but the immoveables can only be ^old under a seizure ob- tained '^ the instance of a creditor. Ihid. The curator may, with the permission of tho court or judge, upon the advice of tho oreditorn or inspoctors, exer- cise all the rights of action of the lebtor, auil all the actions possessed by the mass of the creditorH. The curator may sell the debts and moveables and im- moveables of the debtor in the manner indicated by tho court or jud'^e, upon the advice of tho parties interested or the inh})»( tortj. UpOii tlir' lomand of the curator, authorized by the cre- ditor?,, or by the inspectors, or upon the demand of an hypotliPcary creditor, of which demand sufticient notice must be given to the debtor, the court or judge may author- ize the curator, or command him to issue his warrant ad- (ireased to the sheriflf of the district where the immoveables are situated, requiring him to seize and sell such immove- ables. The sheriff is bound to execute such warrant, without its being necessary to make any service upon the debtor, but by otherwise observing the same formalities as in the case of a writ de terris ,- and all proceedings subsequent to the issue of the warrant are had in the Superior Court. 772a. (Added by 48 Vict. c. 22, s. 7). The moneys realized by the curator from the property of the debtor, Rhall be distributed among the creditors by means of divi- dend sheets prepared after the expiration of the delays to file creditors' claims, and are payable fifteen days after notice is given of the preparation of such dividend sheets. Such notice it, given by the insertion of an advertisement in the Quebec Oficial Gazette, and by a registered notice sent by mail to the address of each of the creditors of the debtor who have filed their claims, or who appear upon the list of creditors furnished by him. . i'u( ga^v lu •I . 'ii'' '•" \l ! 'in «., ■ .-1 ('•(Si mwm •11 'i 446 OF ABANDONMENT OF PROPERTY, ARTS. 772-776. The contestation for such purpose must be filed with the curator, who is bound to transmit it immediately to the pro- thonotary of the Superior Court oi the district, in which the proceedings upon the abandonment are then deposited, or to such other district as the parties interested in the con- testation may agree upon, and such contestation is pro- ceeded upon and decided in a summary manner. 7T8. (As replaced by 48 Vict. c. 22, s. 8). Any credi- tor may contest the statement by reason : 1. Of the omission to mention property of the value of eighty dollars ; 2. Of any secreting by the debtor within the year immediately ^receding the institution of the suit, or since, of any portion of his property, with intent to defraud his creditors ; 3. Of fraudulent misrepresentations in the statement, in respect of the number of his creditors, or the nature or amount of their claims. Ibid. s. 12 ; s. 13, § 2, s. 15. In cases where the debtor has given notice of the aban- donment of his property to his creditors, as above pre- scribed, the delay to contest the statement is restricted, as to the creditors to whom the notice is sent, to four months from the date of sending such notice. 7*74. The contesting party is bound, within the same delay, to prove his allegations by all legal means. The court may, however, prolong the delay for making such proof, but not beyond two months. Ibid. s. 13, § 3. 775. The debtor is bound to attend before the court or befoie a judge, under the penalty hereinafter imposed, in order to answer all questions which may be put to him con- cerning such statement. Ibid. s. 12, § 2, s. 15. 776. (Ab amended by 48 Vict. c. 22, s. 9). If the contesting party establishes any one of the offences 1*1 OF ABANDONMENT OF PROPERTY, ARTS. 776-780. 447 mentioned in article 773, or if the defendant refuses to attend or to answer, as required under the preced- ing article, the court or judge may condemn him to be imprisoned for a term not exc.3ding one year. If the debtor so ordered to be imprisoned, does not sur- render himself, or is not surrendered for that purpose according to such order, then the sureties are liable to pay the plaintiff the debt, together with interest and all costs. Ibid. s. 12, §§ 2, 3 ; s. 13, §§ 2, 4 ; s. 15, s. 18. If the debtor, discharged upon bail, does not produce his statement and declaration within the thirty days mentioned in article 766, such debtor and his sureties are subject to the same penalties and recourse as hereinabove. TT*?* If the allegations of the contestation are not proved, within the delays above mentioned, the court or judge may order the discharge of the debtor ; and the latter cannot again be imprisoned for any debt due the plaintifi, or any other creditor, by reason of any cause of action an- terior to his statement and declaration of abandonment ; and in case of such imprisonment he may obtain his dis- charge either from the court or from a judge, upon petition and sufficient proof. Ibid. s. 13, § 3, s. 16, §§ 1, 2. 778. (As amended by 48 Vict. c. 22, s. 10). The abandonment of his property deprives the debtor of the enjoyment of such property, and gives his cre- ditors the right to have it sold under execution for the payment of their respective claims. Poth. 269 ; C. N. 1269. 779. The abandonment of his property discharges the debtor from his debts to the extent only of the amount which his creditors have been paid out of the proceeds of the sale of such property. Poth. 269; C. S. L. C. c. 87, s. 20 ; C. N. 1270. 7S0. (As replaced by 48 Vict. c. 22, s. 11). In cases where a capias could not be executed by reason of the ab- :: ■1 ^^ 448 OP COERCIVE IMPRISONMENT, ARTS. 780-781. sence of the defendant, or because he could not be found, and in all cases in which the defendant has left the province or no longer resides therein and has ceased his payments, there may, after notice to the defendant or debtor, in the manner prescribed by the court or judge, be appointed a guardian and curator, whose powers and obligations shall be the ' same as if appointed after an abandonment of property. SECTION VII. OF COERCIVE IMPRISONMENT. TS1- Coercive imprisonment cannot be carried into exe- cution without a special rule granted by the court, after personal notice given to the party liable to it, unless such party absconds in order to avoid it. C. P. C. 780. 1. Notice must be given a witness against whom proceedings for con- tempt are taken, of all the proceedings. Hoy v. Beaudnj d- Laferri^re, 6 L. C. J. 85, S. C. 1861. 2. Notice is not required in the case of a guardian. Itodier v. McAvoij, 20 L. C. J. 305, S. C. 1876. 3. But held, that no man could be imprisoned without previous notice to himself personally. Benjamin et al. v. Wilson, 1 L. C. J. 4, S. C. 1856. 4. An application tor contrainte cannot be granted on simple motion ; the proper course is to take a rule of court. Higgins v. Bell, 17 L. C. J. 274, S. C. 1873. 5. On an application for a rule for contrainte par corps against a curator under the Ordinance of 1667 — Held, that the Ordinance does not give that remedy as a means of enforcing an interlocutory judgment but merely as a final rule. Wood v. McLennan, 5 L. C. J. 253, S. C. 1861. 6. A motion to have the defendant imprisoned until he pays the amount of a judgment obtained against him for personal damages, will not be received until after the expiration of four ironths from the service upon him of such judgment ; and the imprisonment cannot be effected until fifteen days after the order of the court on the motion. Nysted v. Darby- son, 9 Q. L. R. 322, S. C. 1883. OF COBBOIVB IMPRISONMEKT, ARTS. 781-782. 449 7. Service of the motion for the rale niri is not necessary, personal ser- vice of the role being sufficient. Watto t. LaBelle, 26 L. C. J. 121, C. C. 1882. 8. Personal service of the rale is not necessary ; personal service of the motion being sufficient. Delisle v. Sanche, 26 L. C. J. 162, P/. G. B. 1881. 8. Coercive imprisonment may be accorded in a case of damages result- ing from personal injury after the judgment awarding damages ; even if it be not demanded in the conclusions of the declaration, and it may be even so awarded in respect of a condemnation of damages for $25 only. Ouellette V. Valines, 26 L. C. J. 391, 0. C. 1882. See Perrault v. Cliarbonneau, 5 L. Charbonneau, 3 L. N. 255. N. 204, S. C. 1882 ; and Lozeau v. in. I- '-■in* 782, In all cases of resistance to the orders of the court respecting the execution of the judgment by seizure and sale of the property of the debtor, as well as in all cases in which the defendant conveys away or secretes his effects, or uses violence or shuts his doors to prevent the seizure, a judge out of court may exercise all the powers of the court, and order the defendant to be imprisoned until he satisfies the judgment. C. S. L. C. c. 83, ss. 143-4-5. 1. On a rule for imprisonment against the defendant by contrainte par corpn for refusing to open his doors to a bailiff — Held, that by the Ordi- nance of 1785 the defendant was liable to a writ of capias ad satisfaciendum, and that there was error in the judgment of the Superior Court dismiss- ing the rule. Mercure v. Laframboise et al., 5 L. C. R. 168, Q. B. 1855. 2. No mitigating circumstances could prevent the issue of the writ where the rebellion was established. Campbell et al. v. Beattie, 3 L. C. J. 118, S. C. 1858. 3. Where a writ of prohibition has issuod addressed to " The Corpora- tion of the Villiage of L." forbidding it to proceed with, or to take any action under a certain by-law, under any form or pretext, it was held that a rule for contempt would not lie against a person who had caused certain works to be done at the request of the corporation, and in fultil- ment of such by-law ; and the rule was dismissed with costs. Archambault et al. exp. v. The Corporation of the V. of L'Assomption «fc Archambault, 2 R. L. 105, 8. C. 1870. 4. A person cannot beheld to be in contempt of court for having filod a fraudulent opposition until after a judgment on the merits of his opposition. Dawson v. Ogden <& Ogden, 8 R. L. 716, Q. B. 1877. 29 p. c. c. p. ! \i l« "■i: L. N. 389, S. C. 1883 ; Brais v. Tlie Corporation of Lomiueuil, 5 L. N. 212, S. C. R. 1882; OrothJ v. Sandem, 5 L, N. 213, S. C. 1882; Leclaire v. Copeland, 5 L. N. 340, S. C. R. 1882 ; Chapman v. Benallack, 5 L. N. 109, 198, S. C. R. 1882; Marchand v. Snowden, 7 L. N. 44, S. C. 1884; Gerbie V. Bessette, 7 L. N. 156, S. C. 1884. ANY SUM- OF THE ISSUINa OF THE CAPIAS, ABTB. 797-798. 455 CHAPTER FIRST. OP CAPIAS AD RESPONDENDUM. SECTION I. OF THE ISSUINQ OF THE CAPIAS. 797* When the amount claimed exceeds forty dollars, the plaintiff may obtain, from the prothonotary of the Superior Court, a writ of summons and arrest against the defendant, if the latter is about to leave immediately the Province of Canada, or if he secretes his property with in- tent to defraud his creditors. Ibid. 210; C. 8. L. C, c. 87, 8. 1. 1. The Province of Manitoba does not make part of Canada in the terms of art. 797 C. C. P., and consequently the debtor who leaves the Province of Quebec for that part of the Dominion cannot claim to bo exempt from arrest under capias on that ground. LainJ et al. v. Clarke, 2 B. C. 232, S. C. R. 1872. 79H. This writ is obtained upon an affidavit of the plaiatiflf, his bookkeeper, clerk, or legal attorney, declaring that the defendant is personally indebted to the plaintiff in a sum amounting to or exceeding forty dollars, and that the deponent has reason to believe and verily believes, for rea- sons specially stated in the affidavit, that the defendant is about to leave immediately the Province of Canada, with intent to defraud his creditors in general, or the plaintiff in particular, and that such departure will deprive the plain- tiff of his recourse against the defendant ; or upon an affi- davit establishing, besides the existence of the debt as above mentioned, that the defendant has secreted or made away with, or is about immediately to secrete or make away with his property and effects with such intent. C. P. L. 212-1 i. 1 t f .■' &'A' boiii^ as and for tho prico of a lar^o quantity of ulana nold by the deponent au Af^ent of the plaintiffs to tho defendant — Held, that tlie cause of action WHS suffloiently set forth. Grenory v. Tin; Ilnston (t Sandwich Glam Co., !) L. C. J. 184 & 16 L. C. R. 475 & 1 L. C. L. J. 87, Q. 13. 18(16. 12. The allegations that tho defendant is personally indebted to the plaintiff for work done by the plaintiff for the defendant, and for wages and salary earned by the plaintiff in the service of the defendant, is suf- tioiont, although it is not stated that tho work was done at the instance or reiiucst of the defendant. Joutnu v. DunI p, 7 L. C. 11. 420, S. C. 1857. 18. The statement that the defendant is personally indebted to the plaintiff in tho sum of 9<<00 for the balance of an account for various transaotions which the s'id defendant had with the plaintiff in their busi- noHS as wood merchants, which sura defendant had acknowledged to owe the plaintiff, is a sufficient statement of tho cause of debt to entitle the plaintiff to the capias. Kenny v. McKeown, 9 L. C. J. 104, S. C. 18(ii. M. An affidavit for capias is insufficient if, being taken for damage suffered by goods on board ship, it does not state with certainty that the goods were so damaged while in the custody and safe-keeping of the dofundant, and before delivery. Oale et al, v. Brown, 3 L, C. R. 148, S. C. 1852. l.'i. An affidavit to obtain a capias, which states that the defendant is indebted to the plaintiff in a certain sum for board and lodging during the space of six months and for articles of clothing furnished him, is bad. Cuthhert v. liarret, 1 L. C. R 212. 16. An affidavit for capias must set forth the cause of action and the nature of the defendant's indebtedness. Rolland v. Guilbault, 12 L. C. J. 276, 8. C. 1868. 17. A writ of capias will be quashed on motion if the place where the debt was contracted is not mentioned in the affidavit. Ilrison v. McQueen, 7 L. C. J. 70, S. C. 1862. See remarks of Monk, J., 23 L. C. J. 129, anent this case. 18. An affidavit alleging a debt to exist need not state when the same was contracted, nor show that it was contracted within the five years next preceding ; Nor that the sale and delivery were made to the defendant when they are alleged to have been made "at his instance and request." Maguirev. Rockett, 3 Q. L. R. 347, 8. C. 1877. 19. And held, also, that it is unnecessary in describing a promissory note as the cause of debt to state where the same was made. Berry v. May, 13 L. C. R. 3, 8. C. 1859. ( i I* I? i ' i'i "•■.tl I _ Wf 4C8 OF CAPIAS AD RESPONDENDUM, ART. 798. 20. It ia not neoeiaary to atate in the affidavit where or when tiio in- (lobtoclnofia waa incurred. L'Heureux v. Martlnenu, 6 Q. L. li. 27R, B. C. 1880 : SheriiUin v. llenneiiey, 28 L. 0. J. 212, 9 R. L. 601, 8. 0. 1879. 21. Tlte eziatonoe of the debt at the time of the alleged aeoretion muat appear. McAllan v. Aihhy, 4 L. N. SO, 8. 0. R. 1881. 22. The affidavit ahould atate aoocinotly the oauaea of plaintiff'K right of action. The allegationa which would be aufficient in a deoliiration to explain the nature of the demand Suffice for the affidavit ; it ia not neoeaaary to atate whore nor at what time the debt waa oontractod. Deponent muat give reaaona aufficient to aatiafy the court that it ia witli the intent of defrauding that the debtor ia about to depart. Hurtubine v, Bourret, 28 L C. J. 180, 9 R. L. 638, Q. B. Io70. 23. The affidavit upon which a capiaa iaaued atated that the defendant waa indebted to the plaintiff in the aum of £24 13s. lOJd , whereof the aum of £4 10a. lOJd. waa for work and labour done and performed by the plaintiff for the defendant, and the balance waa the amount of a claim transferred, to him by another, by a deed of aaaignment or trannfcr boforo notaries. On motion to (luash — Held, notwithstanding that no notice uf audi transfer had been given to defendant, except by the service of the action, that it was sufficient to support the writ, and the motion waa dia- missed. Qtiinn v. Atcliesoii, 4 L. G. R. 378, S. C 1854. 24. In an action to recover damages for malicious arrest under capias where it was proved that the plaintiff's claim amounted to £9 lla. Td., and that in order to make up the necessary amount ho procured tho transfer to him of a sum of fourteen sliillings due to another party, and without any notice to the defendant of the transfer, caused tho capiaw to issue — Held, confirming court below, that such proceeding was altogetlicr illegal, and would justify an action of damages for false arrest. Laidlaw v. liuriu, 10 L. C. R. 318, Q. B. 1800. 25. Where the plaintiffs by their evidence showed that two notes, con- stituting the greater part of their claim, wore obtained merely for the pur- pose of enabling them to adopt any course they might think proi)or against the defendant, and without their becoming actual owners of tho notes — Held, that they nevertheless hod tho right to arrest defendant by capias as their personal debtor for tlio whole sum by the-n demanded. Winuimj et al. v. Fraser, 13 L. C. J. 167, S. C. 1809. 26. On a motion to quash a capias on the ground that tho word " per- sonally " was omitted in the aflidavit —Held, that the aflidavit must con- tain tho allegation that the party sought to be detained is personally in- debted to the plaintiff. Altxander v. McLachlan, 1 L. C. J. 6, S. C. 1856. OP THE ISSriNO OF TIIR CAPIAB, ART. 798. 459 'i7< VVhoro tho afHdavit nhnwH a iiorHoniil cause u( action, the allegation that tho defemlunt ia pcrHoiially indebted ia not esBentialiy noccBsary, Lampion v. Smith, 7 L. C. U. 425. 8. C. 1857 ; Sheridan v. Hentmtey, 28 L. C. J. 212 ; 9 R. L. 691 ; H C. 1879. 28. An affidavit to hold to bail must be positive that the debt ia due. The words "as appears by the plaintiff's books," or, " aa the plaintiff believes," is not sufflciont, and the defendant in aaoh case will bo dia< charged on filing a common appearance. Hodgton v. OUva, 8 Rev. de Lig. 849. 29. In an affidavit for capias, the plaintiff stated that the defendant was indebted to him in the aum of £16, pour effetn dUpieeriei vendtis et livrJ* (i Quebec, and gave no other atatement as to the indebtedness. Tho reason given for his belief that the defendant was about to leave the country was certain information he had received, but the names of his informants were not given— //c^i, that the affidavit was insufficient on both these points, and tho capias was quashed. Lebel v. O'Brien, 2 R. G. 238, 8. C. 1872. 30. Where an affidavit alleged a personal indebtedness of 9155,000, value of certain American bonds, etc. "stolon from tho plaintiffs in New York and then in the poasoHsion or under the control of the defendants in ^lontreal, and also that tho defendants had secreted said bonds, etc., and wore about immediately to leave the Province of Canada," etc., >;iving as reasons of belief the character of the defendants who were professional thieves, and tlie information of the Now York detectives to that effect- -//('/(/, that altli^ugh tho persons making the affidavit had no abHoluto personal knowledge of tho facts set forth in it, the affidavit was nevertheless, in itself sufficient. 'The llotjnl Insurance Co. v. Kmtpp d- Griffin, 11 L. C. J. 1, & 2 L. C. L. J. 189 & 201, 8. C. 18G7. 81. But held, also that under such circumstances the cause of action arose in a foreign country, and tho defendant must bo discharged. Ibid. 32. A suit will not Ho whoro tho defendant is domiciled in tho United States and is merely returning liomo after a temporary sojourn here, and where there is no allegation of any special circumstances of fraud. Renntd V. \ andusen, 21 L. V. J. 44, Q. B. 1H72 ; Marcott- v. Moodie, 11 R. L. 4t;0, S. C. ; 5 L. N. 358, 359, 8. C. R. 1882. 33. An allegation that deponent had been informed that defendant " had come to Montreal to attend the mp"ting of tho Graphic Co., and that he intended to go to New York," is insufficient to justify the belief that he was about to leave Canada with tho intent of defrauding his creditors. Canada Paper Co. v. Bannatyne, 23 L. C. J. 261, S. C. 1870 ; Caffrey v. Lujhthall, 2 Q. B. R. 10, Q. B. 1881. I ■'■' ''A I *'L ! i\ ^A-': mWK ht-i 460 OF CAPIAS AD RESPONDENDUM, ART. 798. m 34. Plaintiff brought action of damages for malicious arrest, commenc- ing by a capias which was allowed by a judge to issue for ^1500. The defendant moved to quash on the ground of insufficiency of the affidavit, and especially because the declaration contained no averment that the criminal proceedings complained of were determined. Plaintiff replied that, as defendant was about to leave the country, he was forced to take his action before the determination of the charge — Held, that the capias was properly issued ; and, as the criminal proceedings had since ended, plaintiff's motion to amend the declaration to that effect was granted. Fraser v. Gerrie, 2 R. C. 477, B. C. 1872. 3o. When the facts upon which his belief is based, are sworn to directly and not as hearsay, deponent need not disclose the name of any informant. Maguire v. liockett, 3 Q. L. R. 347, S. C. 1877. 36. Where the plaintiff in his affidavit for a capias after judgment deposed, as the ground of his belief, that the defendant was about to leave the Province of Canada with intent to defraud, that be, the defendant had made no attempt to pay the amount of the judgment against him, and was a seafaring man, resident out of the Province of Canada, and was only temporarily in Montreal as master of a sea-going vessel, and was about to depart from Montreal in command of said vessel — Held, that the grounds of belief were sufficient to maintain a capias. Macdougall v. Torrance, 5 L. C.J. 148, S. C. 1861. 37. Held, that the plaintiff was justified in his belief that the defendant was about immediately to leave the Province of Canada, with intent to defraud the plaintiff, in that the defendant had bought from the plain- tiff a large quantity of wheat of the value of 98,293.75, payable cash on delivery, and had received delivery of the wheat, but had only paid por- tion of the price, leaving a balance of 92,993.57 unpaid ; and that the defendant, upwards of two months afterwards, was about to go abroad to Scotland, his original domicile, where his family had resided for five years, without paying the plaintiff the said balance, and without leavin>; any property in Canada out of which the plaintiff could be paid, and after repeated applications to him for payment. Rots et al. v. Burns, 7 L. C. J. 35, S. C. 1862 & 10 L. C. J. 89, Q. B. 1864. 38. An affidavit contains sufficient grounds for belief of the defendant's departure with fraudulent intent, if it be stated that he refuses to pay the sum sworn to be due, that the vessel of which he is master is immediate- ly about to sail for Europe, and that the defendant is to sail therein. Lefehvre v. Tullock, 5 L. C. R. 42, S. C. 1854. 39. An affidavit in which it is stated that the reasons for believing that the defendant is about to leave the Province with a fraudulent intent are, that he is the master of a vessel which is loaded and ready for sea, with OF THE ISSUING OP THE CAPIAS, ART. 798 461 the defendant as master, and that the defendant himself had stated that he was immediately about to sail to parts beyond the sea, is sufficient. Quinn v. Atchesm, 4 L. C. R. 378, S. C. 1854. 40. Where an affidavit stated that the deponent's grounds for believing that the defendant was about to leave the Province with intent to defraud his creditors were, that the defendant's vesbel was loaded and ready for sea, and that he, the defendant, intended sailing in her, and had told the deponent that he would not return to Canada, it was held to be sufficient. Wilson V. Reid, 4 L. C. R. 157, S. C, & Berry v. Dixon, 4 L. C. R. 218, S. C. 1854. See 5 Q. L. R. 367, note. 41. Defendant had by false pretences obtained possession of 400 bags of the value of 880 belonging to the plaintiff, and, being master of a ship on board of which they were carried, was about to leave the port — Held, that the plaintiff was entitled to a writ of capias for the recovery of the value of the bags. Milligan v. Masson, 17 L. C. J. 159, S. C. R. 1872. 42. Where the plaintiff had set up as ground for capias "that the defen- dant was about to sail in his said vessel for Europe or other parts of the world" it was held insufficient. Paquet v. McNab, 3 R. L. 456, S. C. 1871. 43. And it is sufficient if deponent swear as one of his grounds that defendant was master of a ship, and that said ship was entered at the custom house, though without saying that this was done by defendant or that he was going in her, or naming her destination. MilUjan v. Mason, 17L. C. J. 159, S. C. R. 1873. 44. On 4 motion to quash a writ of capias on various grounds — Held, with regard to the departure of the defendant, that, where the deponent alleged as his ground of belief that the defendant was about to leave the pro. Mice, the fact that the defendant was a mariner, having no domicile in the province, and was about to sail with his ship, it was sufficient. Ilasnet V. Mulcahey, 6 L. C. R. 15, S. C. 1856. 45. It is not necobsary to state in such affidavit that the defendant has been asked to pay the debt and refuses to do so. Ibid, 46. The grounds of the deponent's belief are sufficiently set forth by a statement to the effect that defendant stated to deponent at a timf) and place mentioned that he was about to go to California, ono of the United States of America, to make money, and asked the deponent to procure him money for the voyage, and afterwards made the same statements to persons named in the affidavit. Debien v. Manant, 14 L. C. R. 89, S. C. 1863. 47. The alk nation in an affidavit that the defendant himself stated that he was leaving for California was held to be sufficient to justify the issuing of a writ of capias. Beiyamin et al. v. Wilson, 1 L. C. R. 351, S. C. 1860. m iji. «:• ;' i I i *f s 4} 1 . ? ■'* "■,'1'f r; ■ |nj'- ■; ,.'1 , ■,!lf '• \Wi 462 OF CAPIAS AD RESPONDENDUM, ART. 798. II h^n ^ •> f 48. Tho allegation that the clefendiuit had taken away goods placed with the plaintiff as security for the payment of a note, that he had refused to deliver a horse, and that he was a stranger and htid failed to keep appojut- ments, and that he had withdrawn himself from his creditors, are not sufticient to justify a capias. Leeming v. Cochrane, 1 L. C. R. 352, S. C. 1851. 49. Held, that in such af3fidavit it was necessary that the party making it should swear defendant was immediately about to leave the province with intent to defraud the plaintiff in particular or his creditors in general. Wilsmi V. Roy, 4 1^ C. R. 159, S. C. 1854. 50. The allegation that the defendant, who resides at Rouse's Point, in the United States, is on the point of immediately leaving the province to go there, and giving the names of plaintiff's informants, discloses no in- tention of fraud, and is insufficient. LaRocque v. Clarke, 4 L. C. R. 402, S. C. 1854. 51. The omission to set forth an intent to defraud is fatal. Ford v. Lcger, 21 L. C. J. 191, S. C. 1877 ; Lamarche v. Lebrocq, 1 L. C. R. 215, S. C. 1851. 52. An affidavit for capias, which alleges " that the defendant Is about to leave the province, and that the belief of the deponent that he is about to leave the province with intent to defraud, is founded," is insufficient, as the affidavit must specifically allege that the defendant is about to leave the province with intent to defraud. l/IIoiat v. Butts, 10 L. C. R. 204, S. C. 18G0. 53. Where the defendant moved to quash on the ground that no fraudulent intent whatever was disclosed by the reasons given in the affidavit, and also on the ground of vagueness — Held, that there was nothing in the act which required chat the fraudulent intent on the part of the defendant should be alleged in the reasons of plaintiff. Henderson v. Enuess, 2 L. C. J. 186, S. C. 1858. 54. Defendant, a marine insurance agent, native of Canada, and wlio had resided in Quebec during about three years, being without means of supporting his family, and unable to get work during the winter season here, at the close of navigation was about to go to Boston in the hope of obtaining employment there. He, at the time, owed plaintiff ^80 for board, and was about to leave without paying her, the fact being that be had not tho means of doing so. It was held that under tho circumstances plaintiff was not justified in swearing that defendant was about to leave with intent to defraud, and the writ was quashed. Ilcndemon v. Duggan, 5 Q. L. R. 3G4, S. C. 1879 ; Paulet v. Antaija, 3 L. N. 154, 10 R. L. 320, S. C. R. 1880. f OP THE ISSUING OF THE CAPIAS, ART. 798. 463 55. An allegation charging an inten to defraud does not necessarily mean an intent to deprive the creditor finally and completely of his debt or his remedy. Shaw v. Machenzie. 2 L. N. 5, 23 L. C. J. 52, 9 E. L. 021, S. C. 1878. 50. The words " may lose his debt or sustain damage " suffice. Ander- nm V. Brusgaard, 3 Q. L. R. 287, C. C. 1877. 57. Contra, Stevenson v. Robertson, 21 L. C. J. 102, S. C. 1877 ; Ford v, Le entity of flour from plain- tiff for casli, to be paid immediately after delivery, and then obtained advances on the flour and pledged the same for such advances, and wholly failed to pay the vendor, asserting as his reason for not doing so that he was insolvent, is a sufficient ground for the issuing of a writ of capias. Raphael v. McDonald, 9 L. C. J. 336, S. C. 96. The intent to defraud required to constitute secretion must be an intent to defraud the plaintiff in particular and the creditors in general, and not either of these alone. The diverting the proceeds of a security ' ^' ■ ) . ! ■ ■■A I I \1- M ■. ing that a sufficient delay for the return was not allowed, the plaintiff took out an alias writ, returnable later — Held, on an exception to the form, that the proceeding was valid and the judgment a quo was con- firmed. Richard v. Wurtele, 1 Legal News, 32, Q. B. 1877. 111. Where the defendant, having been arrested on a capias, pleaded that the issue of the writ had not been demanded in the affidavit — Held, thi ; the fiat was all that was necessary for that purpose. Doutre v, :^ Jinnis, 5 L. C. J. 158, 8. C. 1861. 112. The affidavit for a capias may be sworn before the deputy pro- thonotary. The Moisie Iron Co. v. OUen, 18 L. C. J. 29, Q. B. 1874. 113. An affidavit for capias is sufficient if it contain all the allegations required by the statute though in a different order. Gregory v. Ireland, 9 L. C. J. 131, Q. B. 1865. 114. An affidavit to hold to bail, though bad in part may be efficient for the remainder. Patterson et al. v. Bume, 3 Rev. do L6g. 347. 115. Effect of lapse of time between the alleged secretion and the issuance of the writ of capias. Molson v. Carter, 3 L. N. 258, Q. B. 1880. 116. A capias was maintained against a party who in 1875 secreted his property and left Canada, with intent to defraud, and in 1882, came temporarily into the country with the intention of again departing. McFarlane v. McNeice, 7 L. N. 398, S. C. 1884. 117. Where a party has been arrested under a capias, and the arrest declared illegal, he must be completely and fully restored to his liberty before he can be arrested under a second capias, and consequently the service of a writ of capias or the arrest of a party already in custody is illegal. Hamel et al. v. Cdt^ et al., 11 L. C. R. 479, S. C. 1861. 118. Where the affidavit on which a capias issued disappears from the record, the capias cannot be maintained, though the contestation is mani- festly unfounded. Hatte v. Currie it McDonald <£• Gordon et al., 1 Legal News, 63, S. C. 1877, 22 L. C. J. 34. :; ( ' i|' aSBHH \m I .in m IS ;t , W1 iif r- i.l ?1 :-i 470 OF CAPIAS AD RESPONDENDUM, ARTS. 798-799. 119. One affidavit whioh contains all the necessary averments sofficeH for the issuance of a writ of capias and of a writ of attachment in thn same case ; and the fact that the words whioh may have been erased and the mar({inal notes whioh may have been added to the affidavit are not summarized at the end thereof, does not make it null. Where the plaintiff, in such case, prayed for no further condemnation in the declaration attached to the sainie arrH than what he had claimed in the declaration attached to the capias, the defendant was not allowed to file two sets of pleadings. The fact that defendant carried off his effects during the night time without plaintiff's knowledge and to the latter's detriment, and refused to pay his creditor or to declare whither he bad taken his effects, was held to constitute a secreting. iSi(. Michel v. Vidler, M. L. R. 1, 8. C. 1G8, S. C. 1885. See art. 884 infra. 79». (As replaced by 48 Vict. cap. 22, «. 12.) The writ may also be obtained if the affidavit establishes, besides the debt, that the defendant is a trader, that he has ceased his payments and has refused to make an assignment of his property for the benefit of his creditors. C. S. L. C. c. 83, 8. 47 ; c. 87, s. 9. 1. In an affidavit for a writ of capias it is necessary to allege the insol- vency of the debtor, and that such debtor being insolvent refuses to nmku an assignment of his estate for the benefit of his creditors. Haniel et al. V. CdUet al., 11 L. C. R. 446, 8. C. 1801. 2. An affidavit to hold to bail which does not disclose any ground for the allegation that the defendant is a trader, and that he is notoriously insolvent and has refused to compromise or arrange with his creditors, and does not allege that he has refused to make a cenxion de bieiiH to them, is bad, even although it be alleged, as required, that he had secreted hia estate, debts and effects with intent to defraud, and the capias issued in virtue of such affidavit will be quashed on motion. IVarren et al. v. Morgan, 9 L. C. R. 305, Q. B. 1859. 8. Where the affidavit stated the cause of debt fully, the insolvency of the defendant, a trader, and that he refused to make an assignment and carried on trade — Held, to be sufficient, and a motion to quash was dis- missed. Macfarlane v. Jieliveau, 9 L. 0. R. 261, 8. C. 1859. 4. The debtor may make the assignment authorized by this article to an uninterested third party, for the benefit of all his creditors. Bourgeois v. Piedalue, i&c, 7 L. N. 391, 8. C. 1884. OF THE I8BU1NO OP THE CAPIAS, ARTS. 799-801. 471 6. Where both parties are domiciled in Upper Canada, the afQdavit miiBt also declare that the defendant dooa not pohhohh within the limitu o( Upper Canada any immoveable property out of which the plaintiff can reasonably expect to be paid. G. B. L. C. o. 87, h. 2, 8 L. C. It. 100. f^OO. The writ of capias may likewise be obtained by any creditor having an hypothecary or privileged claim upon an immoveable, upon an affidavit establishing that his claim exceeds forty dollars, and that the defendant, whether he is the original hypothecary debtor or simply the holder of the property, is, with the intent of defrauding the plaintiff, damaging, deteriorating or diminishing the value of the im- moveable, or is about to do so himself or by others, so as to prevent the creditor from recovering the whole or any part of his claim, to the amount of forty dollars, as provided by chapter 47 of the Consolidated Statutes for Lower Canada. C. S. L. C. c. 43, s. 8. 1. Where the defendant had been arrested on a capias under C. S. L. G. cap. 47, on the ground that he was wilfully damaging and deteriorating a certain immoveable property of which the plaintiff was a hypothecary creditor, but the allegation that he was doing so wilfully was omitted in the affidavit — Held, that it was not actually necesRary to allege in the affidavit that it was so done. Doutre v. McGinni», 5 L. C. J. 158, S. G. 1861. 2. It is not necessary in the affidavit to ask for the issue of the writ, the tiat being all that is necessary for that purpose. Ibid. SOI. [If the demand be founded upon a claim for unli- quidated damages, the writ of capias cannot issue without a judge's order, after examining into the sufficiency of the affidavit ; and the affidavit in such case must state the nature and, moreover, amount of the damages sought, and the facts which give rise tc them, and the judge may, in his discretion, either grant or refuse the capias, and may fix the amount of the bail upon giving which the defendant maybe released.] 1. A capias sued out without a judge's order may be set aside on motion and the defendant discharged from custody on filing a common appear- I ■ If 1 [: i • iHi; m :^l \l :t m 11 i" l3M 472 OF CAPIAS AD RE8PONDENDU5I, ARTS. 801-803. anco. Det Barren v. Ghcmcr, 8 Rev. de Lij?. !J07, K. B. 1820 ; Goyette v. McDonald, 4 U. L. 538, S. C. II. 1878. 2. A writ to hold to bail for unliqiiidatod damsffeB may be had, bnt not for a i)onalty. I'attenion et al. v. Farran, 8 Kov. do L6j{. H18, K. 13. 1811. MOS. The writ of capias may be joined with the writ of summons, or may be issued afterwards as an incident in the cause. In the latter case it must be accompanied with n summons for a fixed day to shew cause why the writ should not be declared valid aud joined with the principal demand. The writ may also issue after judgment has been obtained for the recovery of the debt. 8 Q. L. E. 875. im 1. A capias to hold to bail may be had pendente lite upon the nsual affi- davit that the defendant is about to leave the Province. Collitu v. Hunter, 8 Rev. de Lig. 349. 2. Where the capias was taken against the defendant during the action> and motion was made to quaHh on the ground that it did not appear by the affidavit that any legal or sufficient cause of debt existed to justify the issuing of the capias, or in other words that there was no declaration — Held, that a reference to the declaration filed with the original action was sufficient. Malo v. Lal-elle, 2 L. C. J. 194, 8. C. 1858. 8. A capias founded on a debt for which judgment has been rendered is good and that even where the capias is made the commencement of a new action, it being perfectly indifferent to defendant whether ho was arrested under t a old action or under a new one. Perry v. Milne, 8 L. C. J. 222, S. C. 1864. 4. In a capias after judgment, reference in the declaration to the grounds of capias set out in the affidavit suffices. 'Trust <£• Loan Co, v. Cassidy, 3 L. N. 117, S. C. 1880. 5. Where a plaintiff has obtained judgment against a defendant, lie cannot cause the issue of a capias founded on such judgment, except as an incident in the original cause ; and in the same district. Mathewion v. Bush, 4 L. N. 342, S. C. 1881, 3 Q. L. R. 195, Q. B. 1883. H03- The amount for which the writ of capias has is- sued and the name of the person who made the affidavit must be endorsed upon the writ. 10-11 Geo. IV. c. 26. OP THE ISSUING OF THE CAPIAS, ARTS. 804-805. 478 M04. It is not necessary that the declaration or state- ment of the demand sliould be served upon the defendant at the time of his arrest, but it suffices to leave a copy of it cither with him, or at the office of the prothonotary, within the [three days which follow the service.] C. B. L. C. c. 88, 8. 67. 1. Where a question ai'oae as to the Horvico of the doolaratlon on the defendant — Held, that a sorvioe made by tiling a copy at the prothono- tiiry'a oilKoe was Huttioient, provided a oertitioate of auoh service was writ- ten by that officer on the original. Oaudette v. LaliberU, 1 R. L. 747, 8. C. 18«». 2. In an action commenood by capias also, which was served on the thirty-tirst of May, aiid returnable on the twelfth of June — Held, that a service of the declaration by depositing it in the prothonotary'a office on the seventh June was a lop{al service of the declaration or defendant, and that a delay of ten days between the service and returh of declaration was not required. Itaphael v. McDonald, 10 L. G. J. ID, S. C. 18G6. 3. The declaration must set forth the i defendant is secreting or has secreted his property, or that he intends to abscond with intent to defraud, or, at the least, should refer to the affidavit which led to the capias. The conrt will take cognizance of any defect on this point, even when the de- fendant has r ">t contested the declaration. Howard v. Howard, 9 Q. L. B. 172, S. C. 1888. 4. Even where the plaintiff has already taken out an attachment before judgment accompanied by a declaration, a capias issued in the same cause for like reasons, should also be accompanied by a declaration. Morandat v. Varet, M. L. R, 1 8. C. 109, 8. C. R. 1884. See art, 850 infra. M05. Saving the exceptions contained in articles 2272 and 2278 in the Civil Code, a writ of capias cannot issue : 1. Against priests or ministers of any religious denomin- ation whatever ; 2. Against septuagenarians ; 3. Against females. C. 8. L. C. c. 87, 8. 7, § 1. 1. A minor carrying on trade may legally bind himself for his board and lodging, and in such case may bo arrested under a writ of capias. Drowning v. Yule it Wales, 12 L. C. R. 292, S. C. 1862. I I I i n. ' -1 •'i 1 i.„L,.,.,„..,„„ii,i^- ^IHHII^^^Iffi!! 1 ^^^^^Sf^^Sfr't;; MWi ' ■■^■^^1 ■§| i ..; 'I ' •] i Jm -' ■■■■1 |H ' .' 'r I'H '• ... , ', H > ;'i;lHfl ! 1 l''r rfpi H ; ■■ -t '.; f ^m y^l ^\f HH ^ 1 ;■! ■ t 5- R ^Ifl^^^^^l •n i ■if \r i llH^I 474 OF CAPIAS AD RE8P0NDBNDUM, ARTS. 806-807. mmn "Ci Mi I ,it mm W m ImM §m fcf-..,;.... m AOtt. It cannot issue for any debt created out of the Province of Canada, nor for any debt under forty dollars. Ibid. 8. 2. 1. Barbadoes is a foreign country within the meaning of C. S. L. C. cap. 87, see. 8 Trobridge et al. v. Morange, 6 L. 0. J. 312, S. 0. 2. England must be considered to be a foreign country, and a defen- dant arrested in Lower Canada for a debt contracted there, and for which defendant had accepted a bill of exchange drawn upon him at hia other place of business at Toronto, but made payable at a bank in England, must be discharged and the capias quashed, notwithstanding the disclo- sure of evident fraud. Bottomley v. Lumley, 18 L. C. R. 227, S. C. & 15 L. 0. R. 213, Q. B. 1863. 3. An acknowledgment in Quebec of a foreign debt and of the obliga- tion to pay it is not sufficient to create a new debt within Canada, so as to render the debtor liable to arrest by way of capias. Metacomet Bank V. Paine, 5 Q. L. R. 372, Q. B. 1879. 4. A capias will not lie in favour of one alien against another alien, both being temporarily in the province — for an alleged debt arising out of a contract entered into in a foreign country, where the allegation of the affidavit sets forth the immediate departure of defendant with intent to defraud. Vetitini v. Ward, 23 L. C. J. 2l)7, 9 R. L, 529, S. C. 1879. See Gault et al. v. Robertson, supra. No. 86, under art. 798. S07. The affidavit required in the above articles may be made by one person only, or by several persons swearing each to a portion of the necessary facts, and it may be received and sworn to before a judge of the Superior Court, or a commissioner of the Superior Court, or by the protbo- notary who certifies the writ of capias. C. S. L. C. c. 83, 8. 6 ; c. 87, s. 1. 1. An affidavit for capias may be sworn before a deputy prothonotary. The Moisie Iron Company et al. v. OUen, 18 L. C. J. 29, Q. B. 1874. 2. If the person receiving the affidavit sufficiently indicates his title, to enable the court to recognise its officer, it will suffice. Montgomery v. Lyster, 8 Q. L. R. 375, S. C. R. 1882 ; Paradis v. Poirier, 11 Q. L. R. 82, S. C. R. 1885. 3. An affidavit which does not show by whom it was received is insuf- ficient : the omission of the words before me or us is fatal. Tate v. Smith, 12 R. L. 438, S. C. 1878. See Heugh v. Ross, 13 L, C. R. 32 ; under art. 834, post. OF THE ISSUING OF THE CAPIAS, ARTS. 808-811. 475 S08. The Superior Court alone has jurisdiction in mat- ters of capias. 12 V. c. 38, ss. 32, 47 ; C. S. L. C. c. 78, s. 5. 1. In a case of capias in an action for less than £15 — Held, that the quashing of the writ did not deprive the Superior Court of jurisdiction over such action with regard to subsequent proceeding thereon. Elwes v. Francisco, 1 L. C. J. 188, S. C. 1857. 2. But in another case in which a capias had issued for a claim of $68, but had not been executed — Held, that the Superior Court had no 'urther jurisdiction in the matter. Tetaier v. Legault, 5 B. L. 472, S. C. 1874. 3. Where the plaintiff discontinues proceedings on the capias, he cannot proceed in the Superior Court to recover the 967 which he claims. Tur- cotte V. Rignier, 1 Legal News, 351, S. C. 1878 ; 22 L. C. J. 132. S09> When the capias is issued by the prothonotary of the Superior Court it is addressed to the sherifif of the dis- trict where it is to be executed. 12 V. c. 38, s. 47 ; C. S. L. C. c. 83, 3. 3, § 2. See 33 Vict. c. 17, s. 1 (Que.) under Art. 48 supra. 1. A writ of attachment in revendication addressed to *' one of the bailiffs of our Superior Court for the district of," etc., must be executed by one of such bailiffs, and the writ may not be served by a bailiff and the declaration by a sheriff. Brassard v, Turgeon, 5 R. L. 123, S. C. 1873. HIO. It may be issued by a clerk of the Circuit Court, in which case it is addressed to the sheriff or to any bailiff of the district in which it is to be executed. 12 V. c. 63 ; C. S. L. C. c. 83, s. 6. . H\\» The clerk of the Circuit Court acts in such case as an officer of the Superior Court, and the writ of capias must be worded throughout as if it was issued by the prothono- tary. Ibid. • 1. A writ of capias signed '• F. H. Marchand, Clerk of the Circuit Court," attested with the seal of the Circuit Court, St. Johns, returnable into the Superior Court, and headed in the margin " in the Superior Court," is irregular, and such writ is not a writ in the Superior Court as required by the Judicature Act. Hitchcock v. Meigs, 6 L. C. R. 175, S. C. 1856. » W\l\ J mm i "'ft:. ''J: ;i"i Hill 'Am 1 ■■/:!■ m\\ ■Kv. ! ■ I i 476 OF CAPIAS AD RESPONDENDUM, ARTS. 812-813. HT2» In all cases in which a writ of capias may issue, a warrant of arrest may be granted by a commissioner of the Superior Court and be addressed by him either to the sheriff or a bailiff or any other peace officer in his vicinity. C. S. L. C. c. 83, s. 53. 48 Vict. c. 20, (Que.) : 12. Article 812 is amended by adding thereto the foUovring ; " The commissioner cannot issue a similar warrant at the chef -lieu of a district unless it be established before him by affidavit that it was impos- sible for the plaintiff or his agent to obtain such writ of capias from the prothonocary or his deputy." 813. Such warrant is in the name of the commissioner who grants it : it orders the arrest of the persciP. therein designated and hio delivery over to the gaoler of the district, who is commanded to keep him in his custody during forty- eight hours, and no longer, unless before the expiration of that time the plaintiff has obtained and caused to be execut- ed against such defendant a writ of capias in the ordinary course. 9 Geo. IV., s. 27. 48 Vict. c. 20, (Que.) : 13. Article 813 is amended by substitucing the word " sheriff," for tiie word " gaoler," in the third line thereof. ff Form No. 42. In connection with articles 812, 813. AJulavit for Warrmit of Arrest. A. B., of &c., being duly sworn, doth depose and say, that C. D., of is personally indebted to in a sum exceeding forty dollars, to wit : in the sum of That this deponent is credibly informed, hath every rea- OF THE ISSUINa OF THE CAPIAS, ABT. 813. 477 son to believe, and doth verily and in his conscience believe, that the said is immediately about to leave the Province of Canada {allege specially the reasons which lead to the belief that the defendant is about to leave the Province of Canada), whereby the said , without the benefit of a warrant of attachment against the body of the said , may be deprived of remedy against the said : and this deponent hath Sworn before me, this day of -'-f. ;:'t''p4fi /''III i Form No. 43. Iv connection with articles 812, 813. Warrant to arrest the person. Lower Canada, district of A. B., Esquire, Commissioner of the Superior Court in the district of To and to the keeper of the common gaol of the said '. '■-'Jt, greeting : I com ' you, that you take of in the county of in the district of if he be found in and him, with all due diligence, convey to the common gaol of the said district, and deliver to the keeper thereof, together with this warrant ; and I do hereby command you, the said keeper, to receive the said and him safely keep for the space of forty-eight hours, and no longer, unless, before the expiration of that time, a writ of capias ad respondendum be duly served upon him, to compel him to be and appear personally in the Superior Court for the said district on the day of the return of such writ, to answer of of a certain debt, interest and costs, amounting to the sum of ■ Given under my hand and seal, this day of in the year of Her present Majesty. i'-rii; ti^^A mM 478 OP THE EXECUTION v,* CAPIAS, ARTS. 813-818. 1. A defendant was committed by a commissioner under a warrant which empowered the gaolor to detain him for forty -eight hours and no longer, unless before the expiration of that time a writ of capias be served on him. No writ of capias was served within that time, but the defen- dant was, nevertheless, detained two days longer, and then a capias was served, i. .d, that the detention of defendant after the forty-eight hours had elapsed was illegal, and that the arrest under the capias while defen- dant was detained was void. HingHon v. McKenty, 12 L. C. J. 25, 4 L. C. L. J. 42, S \867. 514. T debtor cannot be detained in prison in virtue of such warrant any longer than forty-eight hours. Ibid. B. 54, 51 5. The commissioner granting such warrant must, without delay, transmit a duplicate of it, together with the original affidavit upon which it was granted and a certifi- cate of his proceedings, to the prothonotary of the Superior Court of the district, who must file the same and keep them as part of the record in the case. Ibid. s. 55. SECTION II. OF THE EXECUTION OF WRITS OF CAPIAS. 516. If the writ of capias is addressed to a bailiff, the bailiff who is charged with it arrests the defendant and de- livers him over, together with the writ, to the sheriff, who thereupon becomes responsible. C. S. L. C. c. 83, s. 6, § 2. The word district refers to that of defendant's residence, and not to the place whence the writ issued. Languedoc v. Castagne, 11 R. L. 337, S. C. 1882. 817. If the writ of capias is addressed to the sheriff he is then bound to execute it or to cause it to be executed by his officers. H1H» The sheriff is bound to keep the defendant in the common gaol of the district, until the latter gives security or is discharged as hereinafter provided. Ibid. c. 87, s. 1. OF THE CONTESTATION OF CAPIAS, ART. 819. 479 SECTION III. OF THE CONTESTATION OF WRITS OF CAPIAS. SIO* Upon a petition presented to the court, or to a judge in term or in vacation, the defendant may obtain his discharge by establishing that he is not liable to be impri- soned, or by shewing that the essential allegations of the affidavit upon which the capias is founded are false or in- sufficient. Ibid. ss. 8, 9, §§ 1-2 ; c. 47, s. 3, § 3 ; C. P. L. 218. 1. A defendant must raise all his objections against the sufficiency of the affidavit in limine litis, and not naerely in appeal. Heyneman v. Smith, 21 L. C. J. 298, Q. B. 2. The want of a sofficient affidavit to hold to bail is not a subject for an exception to the form. Patterson v. Hart, 3 Bev. de L6g. 195. Chap- man V. Blennerhasset, 2 L. C. J. 71. 3. No advantage can be taken of any defect in the affidavit to bold to bail by an exception to the form. Ibid., 3 Bev. de L6g. 348, E. B. 1811. 4. In case of any irregularity in issuing a capias, a motion to discharge the defendant from the sheriff's custody for want of a sufficient affidavit to bold to bail, and not an exception to the form, is the mode of taking advantage of such irregularity. Barney v. Harris, S. B. 52, E. B. 1811. 5. A petition to quash a capias cannot allege irregularities such as would found an exception to the form, and if it does, will be rejected on demurrer. Lemay v. Lemay, 3 B. L. 32, S. C. 1871. 6. A judge in chambers cannot render judgment quashing a capias, but may order the release of the defendant on petition to that effect. Hogan ft at. V. Gordon, 2 L. C. J. 161, S. C. 1858 ; Emmanuel et al. v. Hagens dt Ilagens, 6 B. L. 209, 8. C. 1874 ; The Canadian Bank of Commerce v. Browne et al., 6 B. L. 26, S. C. 1874. 7. Petition was brought for the release of the defendant after issue joined — Held, that there was no presumption of waiver of right to peti- tion for release arising from delay or from pleading to the action. Chap- man V. Blennerhasset, 2 L. C. J. 71, S. C. 1857. 8. Defendant, after filing a plea to the merits, may disprove the allega- tions of the affidavit upon which the capias issued. Ferry v. Milne, 8 L. C. J. 222, S. C. 1864. if nm !.~FI ^i- 'r:i^t iiffl. vW 480 OF THE CONTKSTATION OF CAPIAS, ART. 819. I*' 9. A defendant may apply by petition in torm for the quashing of a writ of capias, and cuch proceeding is more regular under the Code than to apply by nm'aon. Worthen v. Holt, 15 L. C. J. 161, S. C. 1871. 10. When the writ is issued on the order of the prothonotary, acting in the absence of the judge, on a claim for unliquidated damages, a petition concluding with a general pt lyer to quash the writ and to discharge the defendant includes an application to revise the order of the prothonotary. Ibid. 11. This petition is an independent proceeding, and petitioner may invoke the same gr>>n<>ds therein as those already sot forth in an excep- tion to the form. inor arrested under a capias may petition to obtain his discharge una. .rt. 819. Morgan v. LeBoutillier, 5 Q. L. R. 212, S. C. 1879. 12. Affidavits to procure revendioation, capias or attachment are com- pletely exhausted by the issue of the writ, and are of no value as proof in the case. Crehen v. Haijerty, 3 Q. L. R. 322, C. C. 1877. 13. Under a petition to be discharged, it is incumbent on defendant to establish that the allegations of the affidavit are false or insufficient. Cur- ler v. MoUon, 25 L. C. J. 65, Q. B. 1880. 14. On a petition to discharge from custody, if the defendant fail to explain circumstances which evidence a strong suspicion of guilt, and which he might easily explain if innocent, his omission furnishes a for- cible inference against him. McNamee et al. v. Jonet et al. 3 L. N. 371, S. C. R. 1880, lOR. L. 683. 15. The affidavits upon which a capias issues after judgment is the only proof required of the allegations of fraud which form the grounds of the capias, and additional evidence is no more required when the capias issues after, than when it issues before judgment. A capias issued after judgment can only be contested in the innrmer indicated by art. 819. Drapeau v. Pacand, 6 Q. L. R. 140, S. C.B. 18S0. 16. The petition may urge the falsity and insufficiency of tho allega- tions. Baxter v. Silh, 4 L. N. 221, S. C. 1881. 17. Where to an action of capias the defendant by petition after judgment set up that the allegations of the affidavit on which the capias issued were false, and prayed for his release — Held, that the exception to the affidavit could not be taken after iinal judgment rendered. Hoijan et al. v. Gordon, 2 L. C. J. 162, S. C. 1858. 18. A notice on a petition to be released from custody under a capias, served on Saturday between four and five o'clock in the afternoon for presentation on Monday at ten o'clock in the forenoon, was held to be sufficient. Trobridge et al v. Morange, 6 L. C. J. 312, 8. C. 1862. OF THE CONTESTATION OP CAPIAS, ARTS. 820-821. S20. In order to decide upon the incidental proceeding the court or judge may order the immediate return of the said writ of capias and of the proceedings had upon it, al- though the day fixed for the return should not yet he ar- rived. 1 L. C. B. 143. 1. A defendant need not present a petition to have a writ of capias returned immediately, but a judge may order such return upon simple motion to that effect. The Moisie Iron Co, v. Olsen et al., 17 L. C. J. 322, S. C. 1873. 2. The plaintiff cannot obtain the return of the writ earlier than the day fixed for return, in order to have it amended. Slaterv.Belisle, 3 L, N. 238. S. C. E. 1880. 3. The delays to file preliminary pleas run from the return-day men- tioned in the writ, and not from the day upon which the return has been made in conformity to a judge's order. Morandatv. Varet, 7L. N. 382, M. L. E. 1, S. C. 109, S. C. E. 1884. H21» If the contestation is merely as to the sufficiency of the allegations of the affidavit, the judge or the court may dispose of it after hearing the parties. But if the contestation is founded upon the falsity of the allegations, issue must be joined upon the petition of the defendant, in the ordinary course and independently of the contestation upon the principal demand, unless the exigibi- lity of the debt depends upon the truth of the allegations of the affidavit, in which case the writ may be contested together with the merits of the case. 10 L. C. R. 241. 1. An affidavit to hold to bail cannot be contradicted by counter affi- davits. Lawrence v. Hinckley, 3 Eov. de Leg, MS. 2. In an attachment before judgment where an exception to the form and, subsequently, a petition were filed against the validity of the seizure in the manner provided for the contostation of writs of capias — Held, that the enquite on the petition might oe proceeded with, independent of the contestation on the exception to tlio form. The Quebec Bank tfc Steers et al. V. Seymour et al., 11 L C. J. 227, 8. C. 1868. 3. Under art. 821, C. C. '. '. the contestation of an attachment before judgment should be made »« th the contestation upon the merits, and not on petition, when the debt ip not yet due or exigible. Metresse v. Britre <& Guilbault, 15 L. C. J. 259, S. C. 1871. 31 F. c. c. p. I « ^1 :v%yi ni ,1 482 OF THE CONTESTATION OF CAPIAS, ARTS. 821-823. 4. The pretensions of a defendant, .'^o, after arrest, leaves the country and refuses to appear for examination, wiil not be favourably regarded by the court. The MoUon's Bank v. Campbell, 21 L. C. J. 280, 8. C. 1877. 6. Where plaintiff amended his writ and declaration, a:id omitted to amend the affidavit, the capias was quashed. A writ against Alfred Nelson B. cannot be executed on Alfred Napoleon B. Slater v. BelUle, 8 L. N. 238, 8. C. R. 1880. S22. A defendant whose application to be discharged is rejected may appeal from the decision. 3 L. 0. J. 292. 1. Where a defendant under capiis petitioned to be released, and the petition was rejected — Held, that he had a right to appeal from such judgment d. S3S. A defendant arrested upon a capias may obtain his provisional discharge by giving good and sufficient sure- ties to the sheriff to the satisfaction of the latter, before the return day of the writ, that he will pay the amount of the judgment that may be rendered upon the demand, in prin- cipal, interest and costs, if he fails to give bail pursuant to Article 824 or to Article 825. Ibid. s. 22, and form No. 4, Henderson v. Lamoureux. OP DISCHAROE UPON BAIL, AllT. 828. 487 Form No. 44. In connection with article 828. Form of Bail-bond. Know all men by these presents, that we, (name here the Defendant and his bail,) are held and firmly bound to {name here the Sheriff,) Sheriff of the District of , in Lower Canada, in the sum of {state here the amount sworn to and endorsed on the Writ, with twentyfive per centum added for interest and costs,) to be paid to the said Sheriff or his cer- tain attorney, executors, administrators or assigns ; for which payment, to be well and faithfully made, wu bind ourselves, and each of us by himself for the whole and every part thereof, and the heirs, executors and administratovs of us, and every of us, firmly by these presents, sealed with our seals, and dated this day of , in the year of the Reign of Our Sovereign Lady Victoria, by the Grace of God of the United Kingdom of Great Bri- tain and Ireland, Queen, Defender of the Faith, and in the year of our Lord one thousand eight hundred and Whereas the above bounden {name here the Defendant) has been by the said Sheriff arrested under and by virtue of a certain writ sued out of the Superior Court in the District of , at the instance of {name Jiere the Plaintiff), mid to the said Sheriff in due course of law delivered ; The condition of this obligation is such that if the said (name here the Defendant) do on {atttte here the retnrn day of the Writ), or at any time previously thereto, orwi* iir eight days thereafter, give good and sufficient security to the satisfaction of the Superior Court in the said District or of any one of the Judges of the said Court, that he, the said {name here the Defendant), will surrendev uimself into the custody of the said Sheriff whenever required so to do by any order of the said Court, or any Judge thereof, made ,t I i;rn i M ]: 'i >:f i 1 I ^ 11 488 OF DISOHAROE UPON BAIL, ARTS. 828-831. as by law provided, or in default thereof, will pay to the said {name here the Plaintiff), the debt for which he, the said {name here the Defendant), has been arrested as afore- said, with interest and costs ; or do on {state here the return day of the Writ), or at any time previously thereto, or within eight days thereafter, put in special bail, as by law- provided, to the action wherein the said Writ has been sued out as aforesaid, then this obligation shall be void and of no force, but otherwise shall stand in full force, vigour and efifect. Signed, sealed and delivered in the presence of " . The sheriff in such case is responsible only for the sufficiency of the sureties at the time when bail was given. Ibid. S30. He may free himself by offering an assignment of the bail-bond he has taken. This assignment may be effected by simply endorsing his name upon the bail-bond. Ibid. Asselin v. Mason, 9th November, 1848. S3]« The sureties may at any time arrest the defendant and surrender him into the hands of the sheriff, and thus discharge themselves from their bond. C. S. L. C. c. 87, s. 5. 1. Where the sureties of a party, originally arrested under capias, had caused him to be imprisoned under a writ of contrainte par corps, issued at their instance, in order that he should undergo the imprisonment imposed as a punishment by C, S. L. C. cap. 87, sec. 12, § 2, the sureties cannot for that reason alone claim that their bail-bond should be cancelled and discharged. Macfarlane v. Lynch, 10 L. C. J. 26, and 1 L. C. L. J. i)9, S. 0. 1866. OF SIMPLE ATTACHMENT, ARTS. 832-834. 489 833. [The sheriff however, is not bound to receive the defendant, without a written requisition to that effect signed by the sureties or by one of them, or by their authorized attorney. The requisition must contain the title of the court, the names of the parties to the suit, and of the sureties, and must require the sherijfif to take the debtor into his custody ; and it is the duty oi the sheriff to give the sureties a certi- ficate of such surrender.] 833* [If the sureties apprehend resistance, then upon an affidavit of one of them, alleging their suretyship, sworn to before a judge, the prothonotary, a commissioner of the Superior Court, or a justice of the peace of the district in which the debtor then is, and upon a requisition to that effect written upon the back of the affidavit, any bailiff or constable may arrest the debtor with such forcible assist- ance as may be necessary, and hand him over to the sheriff.] CHAPTEK SECOND. OF ATTACHMENT BEFORE JUDGMENT. SECTION I. OF SIMPLE ATTACHMENT. If. I. I ■ 834. A creditor has a right, before obtaining judgment, to attach the goods and effects of his debtor : 1. In the case of the dernier tfqiiipeur ; 2. In b-ll cases where, as plaintiff, he produces an affidavit establishing : that the defendant is personally indebted to him in a sum exceeding five dollars, that the defendant absconds or is about immediately to leave the province, or 1 i ! if. 490 OF SIMPLE ATTACHMENT, ART. 834. M I'M m % S f {^m Wt n ift ffl hH 1 nil ■ '^^ '■tIv 1 am M r 1^4 ^r 'J Anl i.J' is secreting his property, with the intent to defraud his creditors and the plaintiff in particular ; or that the defen- dant is a trader ; that he is notoriously insolvent ; that he has refused to arrange with his creditors or to make an assignment of his property to them or for their benejit, and that he still carries on his business ; and in either case, that the deponent verily believes that without the benefit of the attachment the plaintiff will lose his debt or sustain damage. C. S. L. C. c. 83, ss. 46-7, 58 & 176 ; Poth. 180-1 ; C. P. L. 240. 35 Vict. c. 6, (Que.) : 18. Article 834 is hereby amended by inserting therein, immediately after the word " secreting," the words " or is about to secrete," and by substituting in place of the words "creditors and the plaintiff," the words " creditors or the plaintiff." 48 Vict. c. 22, s. 13. Article 834 is amended by striking out the words, " is notoriously insolvent ; that he has refused to arrange with his creditors, or to make an assignment to them or for their benefit, and that he still carries on his business;" and by substituting therefore the words, "has ceased his payments and has refused to make an assignment of his property for the benefit of his creditors." 1, The dernier e'quipeur is entitled to a writ of attachment before judgment for the amount of his claim on the vessel subject to it, even when several months have elapsed since the debt was incurred, and the proprietor has been in possession of his vessel. Girard v. St. Louis, 6 11. L. 45, C. C. 1874. 2. Where the affidavit for an attachment before judgment stated that the sum of money due was for the price of immoveable property whicli the plf " .tiff promised to sell and the defendant promised to purchase— Held, to be sufficient. S)uiw v. McConnell, 4 L. C. R. 49, S. C. 1854. 8. The omission to state in the affidavit that the defendant is pcrsomilly indebted to the plaintiffs and to state also the cause of debt, and that the defendant hath or liad an intent to defraud his creditors and tlie plaintiff in particular, is fatal, and the attachment by garnishment in such case will be quashed on motion. Lynch v. Ellice et al., 12 L. C. J. 209, S. C. R. 1867. 4. An af&davit in an action for money paid out and expended, and lent and advanced by the plaintiff to the defendant, and at his request, is bad OP SIMPLE ATTACHMENT, ART. 834. 491 for not distinctly stating that the money *'paid, laid out or expended" was so paid, etc., to the use of the defendant and at his request. Maguire V. Link, 16 L. 0. R. 372, S. C. 1865. 5. And where such affidavit embraces several causes of action and one of them is defectively stated, it vitiates the whole affidavit. Ibid. 6. Although the debtor whose liability is secured hypothecarily, is liable to sainit arrH and even capias, yet in such case the court will require very clear evidence of fraud to justify the issuing of a writ, all the pre- sumptions being against the existence of fraud. Leaving Canada with unsatisfied and unsecured debts is not of itself conclusive proof of fraud. LagacJ v.Ayotte, 6 Q. L. R. 88, Q. B. 1880 ; 5 Q. L. R. 240, S. C. R. 1879. 7. The immoveables of the debtor may not _d seized under a writ of attachment before judgment. Corbeil et al. v. Charhonneau <& Martineau, et al., 12 R. L. 316, 4 L. N. 277, S. C. R. 1881. See 3 L. N. 381, 4 L. N. 60. 8. An attachment before judgment was founded upon an affidavit set- ting forth that the defendant was indebted to the plaintiff in a sum of money mentioned therein " for the price and value of goods, wares and merchandise, by the said plaintiff then and there sold and delivered as will appear by the account thereof to be filed in this cause" — Held, on a motion to quash, that the affidavit must state the cause of indebtedness with sufficient accuracy to enable the court to judge whether the defend- ant is indebted to the plaintiff or not, and if any fact material to such judgment be omitted, its absence will not be cured by the assertion by the creditor of the indebtedness of the debtor. Beaufield et al. v. Wheeler, 5 L. C. J. 44, S. C. 1860. 9. Where an affidavit for an attachment before judgment, founded on a claim for work done, omitted to allege that the work was done at the re- quest of the defendant, but alleged an acknowledgment of tlie debt in the shape of a promissory note — Held, to be sufficient. McXamara v. Meagher, 5 L. C. J. 49, S. C. 1861. 10. On a contestation arising out of the seizure of a quantity of timber — Held, that raftsmen have no privilege or right of retention as to the raft upon the timber of which they have been employed. Duguayv. Fleurant d- Bennett et al., 1 Q. L. R. 87, S. C. 1872. 11. Where a creditor was notified by his debtor that she was about to leave the Province for a short time, and the creditor consented thereto, but just as she was on the point of departure placed an atuachment before judgment on her effects at the railway station — Held, that the attachment would not lie as there was no intention to defraud. Hiopel v. Arpin, 4 R. L. 270, C. C. 1872. i 1 t m ; ■li J ■vr t 1? :! 492 OF SIMPLE ATTACHMKNT, ART. 834. 12. An affidavit for an arrit simple must state the fact " that the de- fendant is about to secrete his effects" absolutely, or " that the plaintiff is informed and hath good reason to believe that the plaintiff is about to secrete his effects." Lamoureux v. Kimmery, 3 Rev. de Leg. 307, K. B. 1819. 13. An affidavit made before tho passing of Q. 35 Vict. c. 6, sec. 18, to the effect merely that the defendant is immediately about to secrete his property is insufficient. Griffith v. McGovem, 16 L. C. J. 336, S. C. E. 1872. 14. An affidavit affirming, afto' setting out the indebtedness of the de- fendant, " that the deponent is credibly informed, hath every reason to believe and doth verily and in Ida c> nscicnce believe that the defendant is secreting," &c., with the ^'rjunds of belief, is sufficient to obtain a warrant of attachment before judgment. Clement v. Moore, 13 L. C. J. 163, S. C. 1869. 15. Nor is the omission of the word " verily," in the conclusion of the affidavit, "doth verily believe that, without awarrant of attachment," Ac. fatal. Ibid. 16. And the deponent should state specially his reasons for believing that the debtor is secreting or making away with his goods, with the in- tention of defrauding his creditors, but need not state from whom he received the information. Bell v. Vigneault <& Houlitton, 5 B. L. 697, S. C. 1874. 17. An attachment before judgment will be quashed and set aside upon motion if the affidavit docs not aver that " the defendant is secreting oris about to secrete his estate, debts and effects." McNeven v. McAndrew, 18 L. C. J. 70, S. C. 1873. 18. The article of the Code of Procedure which provides for the issuing of writs of attachment before judgment, has not in any way altered, with respect to the affidavit required for such writs, the law as previously in force, and in such affidavit it is sufficient to state that the defendant is about to leave Lower Canada, or that he is about to leave the Province with intent to defraud his creditors, without stating that he is about to leave the hereto/arc Province of Lower Canada with such intent. Beaulieu v. Linklater, 17 L. C. R. 406, C. C. 1867. 19. The deponent must follow the words of the statute and swear " that he is credibly informed, hath every reason to believe and doth verily and in his conscience believe that the defendant is secreting his estate, and that without the benefit of a writ of mitie arrH ho will lose his debt, &c." Boudrot V. Locke et al., 13 L. C. R., 469 C. C. ; Jobin v. Symvions, 14 L. C. R. 14, C. C. 1863. OP SIMPLE ATTACHMENT, ART. 834. 498 20. If the deponent swears "that he is credibly informed and verily in his conscience believes that the defendant is immediately about to secrete his estate, and that without the benefit of a writ of attachment he may lose his debt or sustain damage," it is sufficient. Shaw v. McConnell, 4 L. C. R. 49, S. 0. 1854. 21. An affidavit for a writ of attachment before judgment in which it is alleged " that the deponent is credibly informed, has every reason to believe and doth verily in his conscience believe, that the defendant has secreted and is about to secrete his estate, debts and effects with intent, &c.," is sufficient. Laing et al. v. Bresler, 6 L. C. R. 196, S. C. 1855. 22. An affidavit for attachment before judgment in which it is said " that the deponent is credibly informed, hath every reason to believe and doth verily and in his conscience believe, that the defendant is imme- diately about to secrete his estate, debts and effects with intent to de- fraud," is sufficient. Wurtele et al. v. Price, 5 L. C. R. 214, S. C. ; Hayes v. Kelly, 5 L. C. R. 336, S. G. ; Fitzback et al. v. Chalifoux, 5 L. C. R. 385, S. C. 1855. 23. The time of the secreting and absconding should appear by tiiii affidavit. Weinrobc v. Solomon, 7 L. N. 109, S. C. 1884. 24. An affidavit to the effect that defendant is secreting or is on the point of secreting his property is insufficient. Gannon v. Wright, 5 L. N. 404, S. C. 1882. Plante v. Carrier, 5 Q. L. R. 350, S. C. 1879. 25. An affidavit is insufficient which charges an intent to defraud the defendant's creditors or the plaintiff. Vineberg v. llarroioitch, 12 R. L. 048, S.C. 1884. Contra : Arcand v. Flanagan, 7 Q. L. R. 266, C. C. 1880. 26. Held, that where the affidavit for such attachment concluded with the averment in the disjunctive that "the plaintiff without the benefit of a writ of attachment would lose his debt or sustain damage," it was not bad for uncertainty. Milne v. Itons et al., 4 L. C. J. 3, S. C. 27. Where the words " is credibly informed " and " in his conscience" were omitted, the affidavit was held to be insufficient. Baile v. Nelson et al., 5 L. C. R. 216, S. C. 1855. 28. Where the words "hath every reason" and "in his conscience" were omitted, the affidavit was held to be insufficient. Hfiguire v. Harvey, 5 L. C. R. 161, S. C. 1855. 29. Where the affidavit alleged that "without the benefit of a writ, etc., the plaintiffs may lose their debt and sustain damage," it was, on motion of defendant, declared bad and set aside for want of certainty. Robertson et al. v. Attwell db McDougall, 7 L. C. J. 48, S. C. 1862. fi, kf 1 . ; :| ' , ! 1 ' %>i ,A( 494 OF SIMPLE ATTACHMENT, ART. 834. n fi \ ': :', !| flliii i fImw i^Hi 1 l|H ' 1^1 ii Hl^H :S il j ■ 1 'i , i .'i ! wMfH 30. Held, also, that, the writ issued on such affidavit, must be quashed on m-)i.ion. Ibid. 31. The omission of the words "yiU lose his debt" does not vitiate the affidavit, or entitle the defendant to have the writ quashed. Godin v, McConnell, 18 L. C. R. 466, C. C. 1863. 32. The words "may be deprived of hif; remedy and may lose his debt and sustain damage " tire insufficient to justify the issuing of a writ of attachment before judgment. Ferrea v. Rutherford et al. db The Moutn'nl and Champlain Railway Company, 1; L. C. J. 102, S. C. 1864. 33. On a motion to quasi' a writ of attachment on the ground thii*, the allegation in the affidavit was " that without the benefit of such a< writ the plaintiffs may lose their said debt." — Held, that the use of the v ord will was unnecessary, and that the affidavit as it utood wa» nufficient. Sharplen et al. v. Rasa, 17 L. C. E. 39, 8. C. 1867. 34. An affidavit for attachment before judgment in which tlu word " ceh-'-'" instead of the word " receler" was used and theiatt the case of a trader alleged to be insolvent), " that he still carries ,.>n his buainess" is fatal. Osbom et al. v. Nitich <£■ Nii^ch, 21 L. C. J. 252, 1 Legal News, 213, S. C. 36. The court will not quash a writ of attachment because in tiie jurat of the affidavit upon which it issues, subscribed by the prothonotary of the court (the office, being held by two persons), the oath is staled to have been take:i before me ;" nor will the affidavit be held bad by roaaon of erasures not mentioned in the jurat of immaterial words, or words without which the affidavit is otherwise complete. The City Bank v. /.' Hitter dt Maitland, 2 Rev. de L6g. 170. Q. B. 1847. 37. Held, confirming judgment of court below, that the omission of the words " before us" in an affidavit for an attachment against goods, sworn to before the prothonotaries of Montreal, is a fatal irregularity, and a writ of attachment before judgment issued upon such affidavit will be quashed on motion. Heugh et al. <£• Ross et al., 13 L. C. R. 32, B. C. <& 8 L. C. J. 96, Q. B. 1864. 38. No attachment for debt can be obtained before judgment without an affidavit, except in cases of saisie gagerie of the dernier ^uipeur. Tiffany v. Derling, 3 Rev. de L6g. 304, K. B. 1810 ; Dubeault v. Robertson, 8 L. C. J. 334, C. C. 1864. OF SIMPLE ATTACHMENT, ABT. 884. 495 39. Whether the person doing the last repairs to a ship be the dernier fquipeur or not, he cannot obtain process of attachment before judgment, without affidavit. Plante v. Clark, 17 L. C. R. 75, C. C. 1866. 40. An attachment before judgment will not lie against a tenant without an affidavit charging him in the usual form with intent to defraud. Bilanger v. McCarthy - ( l\ J. ■!.„'J I I ri'i^^^^ ■i '-n 46. No reasons for quashing a writ of attachment before judgment other than those set forth in the motion can be taken into consideration by the court. Godin v. McConnell, 13 L. C. R. 465, C. C. 1863. 47. The facts set forth in the affidavit and sworn to there cannot be traversed by exception to the form. Asselin v. Kemp, 15 L. C. R. 191, C. C. 1864. 496 OF SIMPLE ATTACHMENT, ARTS. 834-885. 48. The affidavit for a writ of attachment before judgment and the writ itself may be attacked by exception to the form. Qiroux v. Qareau, 14 L. C. R. 447, i& 8 L. C. J. 164, 8. C. 1864. 49. On appeal from a judgment dismisaing a contestation of an attach- ment before judgment — Held, confirming court below, that the affidavit on which the attachment issued was proof sufficient of fraud or fraudulent intent or concealment on the part of the debtor, and that the plaintiff was not bound to make any further proof of such allegation in order to obtain judgment against the defendant, and that, notwithstanding that part of the claim on which the attachment issued was not yet due or exigible at the time of the action. Prd'ontaine v. Pr^voat et al., 1 L. C. J, 104, Q. B. 1857. See cases under 810 ante. 50. An attachment before judgment cannot be justified by facts subse- (juent to the seizure. Deiiuiisonneuvev. Larue d- Labraiiche, 8 L. N. 28, S. C. 1885. 51. An affidavit such as is required for an attachment before judgment, is not necessary for a saii^ie arrH conservatoire, which is a common law- process, and cannot bo attacked by petition to quash. Burnett v. Poviertj, et al., 7 L. N. 110, S. C. 1884. 52. The process of attachment before judgment cannot be made use of as a means of compelling dilatory debtors to pay doubtful debts, it bein^ allowed by law only against debtors guilty of fraud. Powell v. Pattemon, 4 Q. L. R. 192, S. C. 1878. Perry v. Pell, 2 L. N. 404, S. C. 1879. 53. A prothonotary is not liable for the damages caused by tlm illegal issue of a Writ of Attachment before judgment, unless he acted m bud faith or without reasonable and probable cause. McLenmm et al. v. Hubert etal., 22 L. C. J. 29" ""^ L. C. J. 273, Q. B, 1874. 54. The form of affiv i Gagnon et al. v. Hall, 8 L. N. 71, C. C. 1884. was approved. 55. A saisie comervatoire being attacked by exception to the form, the later was dismissed. Motion for leave to appeal was refused, beet, ise a more expeditious mode of meeting the seizure existed, and nothing but delay would result. Lebcl v. Pacaud, 2 L. N. 202, Q. B. 1879. And see art. 798, supra. HSS» [If the claim is founded on unliquidated damages, the writ of attachment cannot issue without the order of a judge, after examining into the sufficiency of the afS- davits, which, moreover, must state the nature and amount 1,C.C.1884. OF SIMPLE ATTAOHMBNT, ARTS. 886-840. 497 of the damages claimed and the facts which gave rise to them, and the judge may, in his discretion, either grant or refuse the writ, and fix the amount of the bail upon giving which the property may be released.] Art. 801 ante. 886. Simple attachment is effected by means of a writ addressed, when in the Superior Court, to the sheriff of the district in which it is to be executed, or, when in any other court, to any bailiff, requiring such sheriff or bailiff to seize the moveables and effects of the defendant, and to sum- mon him to appear on a day fixed at the office of the pro- tbonotary or clerk, to answer the demand and show cause why the attachment should not be declared valid. C. S. L. C. c. 83, 8. 5. Vide 33 Vict. c. 17, s. 1 (Que.) ante under art. 48. The formalities of a writ of attachment, like those of a writ of execu- tion, are de rigueur, and must be strictly observed on pain of nullity. B -mard v. I'urgeon, 6 R. L. 123. S. C. 1878. HSI7» The amount of the plaintiff's claim must be en- dorsed upon the writ, or the sum for which security may be given. 10-11 Geo. IV., c. 26 ; C. S. L. C. c. 83, s. 52. H9H, The writ is issued by the prothonotary, or by the clerk of thp Circuit Court, as the case may be, upon a written requisition from the plaintiff. It may be either in the French or English language. It is tested in tho same manner as writs of summons. C. S. L. C. c. 83, s. 1. 830* The writ may also be issued for the Superior Court, according to ttie amount claimed, by any clerk of the Cir- cuit Court, who, in such case, may likewise receive the necessary affidavit. Ibid. s. 6, § 4. 840. The provisions contained in Articles 810 and 811 concerning writs of capias, apply likewise to simple attach- ment. 32 F. c. 0. p. .M:| , ' ! W ti . : I !' fi :r-\:. i,f:M 498 OF SIMPLE ATTACHMENT, AIlTfi. 841-848. S41. The seizure of the goods of the defendant is elTectod in the same manner as upon the execution of a judgment. Pothior, Proc. 180-1. The sheriif or bailiff may make the seizure in another district if the debtor has conveyed his property there or has withdrawn there hiuiself. 942* A warrant of attachment may also be issued, in the case of Article 834, by any commissioner of the Superior Court, addressed to the sheriff of the district where the war- rant is to be executed, or to the bailiff or peace officer nearest to his residence, commanding him to seize and detain the effects of the debtor. C. S. L. C. c. 83, s. 58. N43* This warrant of attachment is in the name of the commissioner who issues it ; it orders the moveables and effects of the defendant to be attached, with the ordinary formalities of seizures, and that they be kept and detained for the period of twelve days from the seizure, and no longer, unless before the expiration of sun-h twelve days a writ of attachment, pursuant to the above provisions, issues from the proper court. Ibid. s. 54 & Form D. Form No. 4^5. In connection with articles 842, 843. Affidavit to obtuin Warranto/ Attachment. A. B., of being duly sworn, doth depose and say that C. D., of is indebted to of in a sum exceeding forty* dollars, to wit : in the sum of •Five? See French Version. fi OF BIMPLE ATTACHMENT, ART. 843. 499 That this deponent is credibly informed and hath every reason to believe, and doth verilv and in his conscience believe, tiiat the said now about immediately to secrete estate, debt and eflfects and do al)Hcond and do intend suddenly to depart from Lower Canada, with an intent to defraud the said and creditors. Tliis deponent further saith, that he doth verily believe, that without the benefit of a warrant of attachment against the said the said will lose his debt and sustain damage, and hath Sworn before me, at this 1. Form number 45 of the Code of Procedure is sufficient to meet the requirements of art. 834 of said Code. Dallimore <£ Brooke et al. v. Brooke, 6 R. L. 657, Q. B. 1874 ; UHeureux v. Martineau, 6 Q. L. R. 275, S. C. 1880. i :.! ' ■■■; t; Form No. 46. In connection with article 843. Warrant of Attach7nent. A. B., Esquire, Commissioner of the Superior Court in the district of To greeting: — I command you, at the instance of , to attach of and belonging to , if the same shall be found in the , to the value of and the said keep and detain in your charge and custody for the period of twelve days, from the date hereof, and no longer, unless before the expiration of twelve days, the said shall be seized by writ of attach- ment issuing from the Superior or Circuit Court (as the case may be) at at the suit of the said Given under my hand and seal, at this day of in the year of the reign of Her Majesty. It^ M m 600 OP SIMPLE ATTACHMENT, ARTS. 844-850. % H44» The effects so seized cannot be detained for a longer period than twelve days under such warrant of ««, commissioner. Ibid. H4S- The commissioner who granted such warrant must, without delay, transmit a duplicate thereof, togothor with the original affidavit upon which the warrant was granted and a certiticate of his procoodings, to the pro- thonotary, or clerk of the Circuit Court, who must file and keep the same as part of the record in the case. Ibid. s. 55. N40* When in the Superior Court the writ or the war- rant is addressed to a baililT or any other officer than tiie sheriff, such bailiff or other officer is bound to make a return of his proceedings to the sheriff, and to deliver to him the effects seized, in order that they may be disposed of by the court according to law. Ibid. s. 6, § 2. S47* The sheriff or bailiff may also demand in advanco from the party suing out the writ or his attorney ad litem, such sura as may be deemed sufficient by the judge or tlio prothonotary of the Superior Court from which the writ issued, for the safe-keeping of the effects seized. Ibid. h. 49. S4J4. The sheriff or bailiff may renew such demand as often as the sum so advanced is expended, by presenting a petition, of which notice has been given to the party seizini^ or his attorney ad litem ; and if the amount fixed by the judge or prothonotary is not paid within twenty-four hours, the seizure is discharged, and the sheriff or bailiff is exon- erated from any liability whatever. Ibid. a. 40, § 2. S40. The writ of attachment must bo returned with an inventory of the seizure, and a certificate of service both of the writ and of the declaration, in the same manner as upon a writ of capias. S50. A copy of the wiit of attachment must be left with the defendant, as well as a duplicate of the inventory of the OF SIMPLE ATTACHMRNT, ART. 860. BevAWve, as soon as it is completed. As regards the declara- tion, it may cither be served at the same time as the writ, or within the [three days which follow the seizure,) by leav- ing a copy thereof either with the defendant or at the pro- thonotiiry's or clerk's office. Ihid. s. 57. 1. Whoro tho dofoiulant a>,'reotl to i)tty a debt due by him to tho plain- tilfrt in four iiiHtaluumtH, and to j^ivc Hcciirity, on condition that ho uhould hu allowod to cut timber on cortnin timber limita of tlio phiintiffn, and having; HubHcquontly cut the tinihor tranHferrnd it to anotlier firm which liad niado advaucoH to him— Held, on an attachment before jiid^jment of liio timber as boinj? Htill in tho iMmMOHHion of the defendant, that tlie rij;lit to Huo for tho whole of tho debt, for tiio lirHt inHtaimontH of which two notcH liad boon taken by plaintiffn, cotdil not bo bi'.Hed on tlio allef,'ed fraud of tho defendant in tranHferrin>{ tlie timber to another, mdoHH Huoh fraud were alle){ed in tlie dechiration, tlie allegationn of fraud in the atlidavit boin^ alone insuM'icient, (Hhiioii i-t al, v. Mu(l'(it iC' Youiijj, 2 L. C. L. J. CO, Q. H. iHdIi. '2. The payees of a promissory note doclarod on it as payable to tlioir order and in an atlidavit for attachment, allojjed it to be payable to them- nolves. On motion by tlio defendant to quash tho writ of attachment — }lehl, that this was not a material vnriance so as to destroy tho action. ShorpLij el nl. v. liomt, 17 L. C. It. »'.), H. C. 18(JS. 3. And in an attachment by revendication the omission to leave with tho defendant a copy of the yx'octV rcvhtil of seiz-uro is not fatal, inasnmch aa the Ordinance of KKl? only reiiuires that formality in cases of seizure in execution. Moinon v. Joiell the goods seized, on the ground that thej were of a perishable nature and were not insured, and moreover the lease of the premises in which they wer^ stored would expire before judgment could be obtained, and that the goods would then have to be removed at a loss and sacrifice to the creditors — Held, that under such a seizure, the court had no power to grant the order, and that it could only be granted in cases of attachment in revendication, where the question was one of property, but here the goods virtually belonged to the defendant and, until judgment was had, no such ord^r could be given. Lmochelle v. PichJ <& PiM, 1 L. C. J. 168, S. C. 1957. 2. The fact that defendant whose effects had been attached before judg- ment, illegally removed them prior to the furnishing of the security does not affect the recourse of the seizing creditor against the sureties ; the only effect of the attachment being declared valid is to convert it into a seizure in execution ; and where defendant has obtained possession of the goods upon giving security it is not necessary that the attachment bo declared valid in order to give the creditor his recourse against his surety ; but the latter would be discharged if the attachment were quashed. Gauvreau v. Quinn, et al., 10 Q. L. R. 259 ; S. C, Ibid. 264. S. C. R. 1884. 854. Simple attaohment may be contested in the same manner as writs of capias. 1. Where one motion was made to set aside a judgment granted by the prothonotary in vacation, and another in tho same caae at the same time to quash the attachment on which judgment was granted — Held, that the second motion would be received and filed, pending the d^'iler^ uron the first, so as to bo proceeded with as soon as tho first was disposed of. Beaufield et al. v. niteeler. 5 L. C. J. 44, S. C. 1800. 2. Goods belonging to a third party which have been seized under attachment before judgment 'nust be reclaimed by an intervention and not by an opposition. Andenon v. Walsh lO Ross, 3 R. L. 41.5, S. C. 1871. 3. An irregularity in an affidavit to attach property cannot be taken advantage of bj an exception to the form. Barney v. ilarris, B. R. 52, K. 'B. 1811. 4. An attachment before judgment may be attacked by a dJjense au funds. lioiUlen v. Olierd; Batilne et al., 8 L. C. J. 134, S. C. 180)4. 5. A saisie arrH av ant juij erne nt maybe contested by a simple petition afin d'opposition. Mailloiu: v. Soinerville, 9 L. C. J. 80, C. C. 18()4. ^ i '■ ! ; I • M i 604 OF ATTACHMENT BY GARNISHMENT, ARTS. 854-857. 6. An attachment on a vessel before judgment may be contested on petition like a simple attachment. Girard et al. v. St. Louis, 6 R. L. 45, C. C. 1874. 7 The proper mode of contesting an attachment before judgment is by a petition to quash. Quintal v. Meunier, 11 K. L. 564, S. C. 1880. See ante, art. 819 et seq. SECTION II. OF ATTACHMENT BY GARNISHMENT. 85f5. In n\\ the cases where a writ of simple attachment may be granted as hereinabove explained, a creditor may also attach any moveable property belonging to his debtor which may be in the hands of third persons, and also what- ever sums they may owe him, subject to the restrictions menti(med in articles 558 and 628. C. S. L. C. c. 83, ss. 46, 47; C. P.C. 558. 1. To obtain a writ of attachment en main tierce it is not necessary in the affidavit to name the f(arnishee. 'Hie City hank v. Hunter cO Maitland, 2 Rev. de L6^'. 171, Q. B. 1847. S56. This attachment is effected by means of a writ commanding the attachment in the hands of the garnishees of whatever sums of money, things or effects they have or may have belonging or due to the defendant, ordering the garnishees not to dispossess themselves without an order of the court, and to appear at the office of the prothonotary or clerk to make their declaration, and summoning the defen- dant to answer the demand of the plaintiff. 1. A plaintiff in his contestation cannot allege himself to bo tho pro- prietor of certain effects in the possession of the garnishee, and ask thivt the same be sold to satisfy tho amount of a judgment against the defen- dant. Nurdheimer et al. v. Itoy ,0 Lemelin, If. L. C. R. 298, C. C. 18GG. HUT. It may be addressed either to the sheriff or to a bailiff, when it issues from the Superior Court, and in any other, case to a bailiff. Ibid. ss. 3, 133. See 33 Vict. c. 17, s. 1 (Que.) under art. 48 supra. OP ATTACHMENT BY GARNISHMENT, ARTS. 858-862. 505 85S. It is clothed with all the formalities required for ordinary writs of summons, and is subject to the provisions of articles 838, 839, 840, 84?., 845, 846, in so far as they can be applied. 850* A statement of the amount for which the attach- ment is made or authorized is, moreover, endorsed upon the writ. C. P. C. 559. SOO* The provisions contained in articles 614, 615, G16, 617, 618, 619, 620, 622, 623, 624, 625, 629, 630 and 631, are also applicable to cases of attachment by garnishment before judgment. fi' ' V ' ''5:-! WW rylu. M lum 1. A garnishee in answer to a writ of suitiic nrrH after judj^ment has no right to appear by attorney, and an appearance liled by attorney for such garnishee will be rejected from the record upon motion. Forbes et al. V. Lewis tt) 'The Globe Mutual Life Insurance Co. 18 L. C. J. 7-1, S. C. 1874. HOI. If the declaration of the garnishee is not contested, the court or judge, in rendering judgment upon the princi- pal demand, adjudicates also upon the attachment and the (liiclaration of the garnishee. C. S. L. C. c. 83, s. 135 ; C. P. C. 576. 1. On the hearing of a contestation of the declaration of the tiers saisis in an attachment by garnishment against three garnishee's — IJeld, that as the garnishee must be considered a party in tlio cause ,<.'-a\ not a wit- nass, the nature of tlie debt due by several garnishees must determine tlie nature and form of the contestation of their respective ilecLirations ; and that a contestation by one act of three separate but similar declar- ations of garnishees who are joint debtors of the doff-ndant is good and valid. Macfarla)ie v. Delisle dt Mackenzie et al. t. I) ititeford, 1 L. C. J. 4i), & 7 L. C. II. 318, Q. B. 1857. HiVJi. The plaintiff or the defendant may contest the declaration of the garnishee, upon leave of the court to that effect. I^i H'ti .- iJ ^1 K ({4^^'m EsttHSfc'- 506 OP ATTACHMENT BY GAUNISHMBNT, ARTS. 862-864. Such contestation is served upon the garnishee, together with a summons to appear on a day fixed to answer the same, the ordinarj' delays for summoning heing observed. 4 Will. IV. c. 4, 8. 4 ; C. S. L. C. c 83, s. 136 § 2. 1. Where a plaiD+,iff has been led to contest a garnishee's declaration owing to its vagueness — Held, that he might discontinue the contesta- tions without being subjected to costs. Bomiell v. Miller et al, db Woods, 1 L. C. L. J. 122, S. C. 1866. 2. If a tiers aaisi when examined deny that he is indebted to the de- fendant, it is conclusive, if his declaration be not contested and dis- proved. Itobiiiaon v. Reiffemtein, 3 Rev. de L6g, 347, K. B. 1821. 3. The contestation of a garnishee's declaration should be accompanied by a notice to the garnishee in order that he may answer it. Pearce v. Kelley d- AlassJ et al., 10 L. C. J. 249, S. C. R. 1866. 4. The declaration of a tiers aalai is conclusive until contested and dis- proved. Smith V. Bourne, 3 Rev de L6g. 304, K. B. 1809. 5. The declaration of a garnishee cannot be contested after the eight days have expired without leave of court ; and such leave may be granted even after the delays have expired on payment of costs. Neveu v. Uabeau (& Neveu, 4 L. N. 44, S. C. 1881. 6. The plaintiff loses his right to contest the declaration if he fail to do so before the rendering of the principal judgment, or within the eight days following, unless the delay to contest have been extended during such delay. lUchard v. Michaud, 8 Q. L. R. 244, S. C. R. 1882. M03. In other respects the contestation is subject to the rules of ordinary procedure. SIS'!. If the plaintiff fails to contest the declaration of the garnishee within eight days after the principal judg- ment, he is foreclosed from doing so, unless the delay is ex- tended by the court. 98th Kule of P. 1. A contestation of the garnishee's declaration can only be had after the expiration of the delay fixed by law, or the rules of practice, on sutli- cient cauae shewn. Lipirh v. McLennan etnl. tO The Bank of Upper Canada, 3 L. C. J. 114, S. C. 1857. « [ f' ill' ■ ed and dis- OF ATTACHMENT IN BEVENDICATION, ARTS. 865-866. 507 S65* The defendant may contest the attachment made upon him or in the hands of a garnishee, in the iiianner provided for cases of capias. 12 L. C. K. 265 & 6 L. C. R. 473 ; 7 L. C. J. 48. 1. A defendiint foreclosed from pleading will be allowed to answer the plaintiff's contestation of the garnishee's declaration if he have an inter- est '.n the matters raised by the contestation. Kingston v. Torrance <& 'lorrance v. Knighton, 9 L. C. J. 20, 8. C. 18G4. 2. Where the defendant contested the declaration of the garnishee, which acknowledged a certain amount to be due by him to defendant, on the ground that, at the time the attachment was served, the effects ot the garnishee were actually under seizure, in virtue of an execution issued on a judgment — HeUl, on demurrer by garnishee, that the contestation must be dismissed as without interest in the party raising it. Constable et al. V. Gilbert et al. <& Simpson et al., 4 L. C. J. 299, S C. 1859. 3. A writ of saisie conservatoire issued by an unpaid vendor and a seizure thereunder in the hands of the vendee then insolvent under the Act of 1875 are illegal ; and juv'gment obtained declaring such seizure valid will be set aside on a tierce opposition by the assignee. Robertson et al. v. Smith et al., 23 1,. C. J. 207, S. C. 1879, 9 R. L. 687. 4. Physical possession suffices. Norvmndeau v. Bougie, 3 L. N. 138, S. C. 1880. 5. The court may order the writ to be returned before the day of return. Lynch v. Ellice, 12 L. C. J. 209. See arts. 819 and 854 ante. ;(I 1 T-» jf ■ CHAPTER THIRD Of' ATTACHMENT IN liF,VENDIC.4TI0N. Hli^. Whoever lias a right to revendieate a moveable may obtain a writ for the purpose of having it attached, upon production of an affidavit setting forth his right and describing the moveable so as to identify it. v; 508 WW ' OF ATTACHMENT IN REVENDICATION, ART. 866. The right of attachment in revendieation may be exer- cised by the owner, the pledgee, the depositary, the usu- fructuary, the institute in substitutions and the substitute. Poth. Proo. 182, Guy Rep. Vo. Revendieation, 619, C. P. L. 269. 1. The legality of an attachment in revendieation cannot be tried on motion to quash. Torrance et al. v. Thomas, 2 L. C. J. '>8, S. C. 1857. 2. Wliere an attachment in revendieation of a vessel was issued by the lessor on affidavit to the effect that the lessee of the vessel had incurred liabilities on her at a United States port, and that he had become insol- vent, and that sliould he run the boat to Upper Canada according to her trade, she would in due course call at such port in the United States, and would in all pro1)ability be seized there for the payment of such liabilities - Held, that such affidavit was suflicicnt, and the attachment was con- iirmed. Routh et al. v. MacFlierson, 4 L. C, J. 45, S. 1859. 8. In an attachment in revendieation — Held, thas such attachment could not issue before judgment without affidavit. Fostoii. et al. v, Thomp- sun, 12 L. C. R. 252, C. C. 18()2. 4. In a case of attachment in revendieation by a vendor under hia pri- \ilege, an affidavit was not necessary to obtain a writ, liohcrtsoii et ul. v, Ferguson, 8 L. C. R. 23y, S. C. 1858. 5. In a similar case — Held, that the affidavit was not dc rujueur. clair el ul. v. Fernmon, 2 L. C. J. 101, S. C. 1858. SlH- G. On motion to qufish a writ of revendieation and a seizure riado thereunder, on the ground that the allegations of the affidavit wer. insuf- ficient — Held, that whore the aflidavit was manifestly bad, the w. t would be (juaslied on motion, but where the affidavit invited an issue or. tlienile- gations, the proper jirocedure v,-as by exception to the form, llontk rt a!. v. MePhrr.-ion, 'J L. C. R. 413, S. C. 18,59. 7. Where the freighter and the master of the vessel in which the goods were shipped, differed with regard to the amount of goods ((.;'., '.'umberof barrels of flour) which had been put on board, an action war brcuglit in revendieation of the number claimed — Held, that he could not proceed by way of revendieation under such circumstances. Gordon et al. v. I'oUuck, 1 L. C. R. 313, Q. B. 1841». 8. A merchant shipped a quantity of barrels of flour on a vcsfoI of which defendant was master, and defendant refused to deliver bills of lading therefor, according to the custom of Undo— Held, that plaintiffs were entitled to an attachment in revendieation to recover the goods. McCulloch et al. v. Hat/ield, 7 L. C. J. 229 A 13 L. C. R. 321, Q. B. 18G3. OF ATTAOHMBNT IN BEVESNDIOATION, ART. ')&&. 509 igueur. Sin- 9. A legatee can maintain an action in reveudioation of his legacy, from a tiers dJtenteur, before he has obtained a (Ulivrance de legt. Morrin v. Pel- tier, 1 Bav. de L6g. 507, E. B. 1820. 10. A person charged with felony cannot maintain an action in reven- dication of bank notes supposed to have been stolen, and taken from him when M was arrested, until the charges preferred against him have been disposed of. CarlitU v. Sutherland, 1 Bev. de L6g. 507, E. B. 1821. 11. Where a waggon was held by the waggon-maker for repairs, and the owner of it became insolvent — Held, that the assignee of the insolvent estate could not claim the waggon without giving security for the payment of such repairs. Stewart v, .' sdotix, 17 L. G. J. 167, S. C. 1872. 12. Where, after the dissolution of a partnership, part of the effects belonging to the firm fall into the hands of one of the partners, and he is (ibout to appropriate them to himself, the other partner cannot attach them by revendication, his proper remedy being by action pro socio. Maguire v. Brady, 1 Bev. de L6g. 367, Q. B. 1845. 13. An action in revendication can be maintained for the recovery of title deeds. Perreault v. Hausaerman, 1 Bev. de L6g. 506 E. B. 1817. 14. In an action in revendication of «in ox, it is no justification to say that he was seized dommape faisant on the dtfandant's soil and no more. Reillij V. Chandler, I Bev de Leg. 507, E. B. 1817. 15. Revendication will lie against a bailiff, who, under the authority of a justice of the peaco, holds in his hands goods of the plaintiff, if the cause of the detention bo a matter over which the. justice has no jurisdic- tion. Pacaud v. Begin, 1 Bev. de L6g. 507, E. B. 1820. 16. The plaintiff brought an action in revendication of an uncertain quantity of hops purchased by him, which were to be paid at a certain rate per pound on delivery, and which the seller ref'i.soil to deliver — Held, that he had a right to a saisie conservatoire, but not to an attr. ihraent in revendication, as the sale had nevor been perfected. Kelly et at. v. Mer- viUe, 1 R. L. 194, S. C, R. 18G9. 17. Where the defendant to an attaciiment of things in revendication, pleaded that he had no interest in the articles in question, and had never claim'^d them or refused to deliver them to the plaintiff, the premises in which they were having been formerly occupied by the plaintiff and defendant as co-partners, and no proof was made of a demand and refusal to deliver, and tne thinj^s were delivered to plaintiff by an interlocutory order of the court — Held, confirming the judgment of the court below, that the action woula be dismissed with costs. Herle v. Date, 11 L. C. R. 290, Q. B. 18G1. i i m- )' ;i,. 510 OF ATTACHMEl^T IN BEVENDIOATION, ARTS. 866-867. 18. In an action in revendication of certain moveables alleged to have been illegally detained by defendant— f/f/ood faith to hat they were ,vit the writ OP ATTACHMRNT IN REVENDIOATION, ARTS. 868-870. 511 A68. The formalities prescribed in articles 809, 836, 838, 847, 848, 849, 850, and 851, are observed in attachments in revendication in so far as they can apply. 1. The omiasion to leave with the defendant a copy of the proct^g verbal of seizure in attachments in revendication is not fatal, inasinuch as the Ordinance of 1(>67 only requires that formality in cases of seizure in execution. Moimn v. Jorgciiton, 18 L. C. R. 399, S. C. 1808. 969. The defendant upon a demand in revendication may have the effects returned into his possession upon giving good and sufficient sureties that he will produce them when required, which he is in such case bound to do in the same manner as any judicial sequestrator. Never- theless the court or judge may, according to circumstances, grant possession of the effects to the plaintiff subject to the same conditions. Guyot Vo. Revendication, 620 ; Nye v. Bigeloio, Montreal, 80th May, 1846; Porter v. Ferrier, 17th Feb., 1852; Knapp v. French, 6th Dec, 1852, contra. 1. No jurisdiction is given by the Code of Civil Procedure the Court of Queen's Boiioh or the members thereof, to grant applications for the delivery of goods siozed under a writ of vovendication, Kelly v. Hamilton, l(i L. C. J. 140, Q. 13. 1,S71. 2. On a petition to obtain possession of certain things seized in an action in revendication — Held, that a judge in chambers has power during term to grant nuiin leiv'e of a seizure, on the ailidavit of the parties and the return of the sheriff. La !2, C. C. 18(59 ; Ikaudry v. Itodirr, 10 L. C. J. 202, S. C. l^. 33 WIST MAIN STIIfT WItSTIR.N.Y. I4SM (716)«73-4S03 i\ Si ^ 8^^ 8U OP ATTACHMENT FOR RENT, ARTS. 873-875. m I I HI because he had not been mentioned in the declaration, and was described in the writ by his initials only, he having so signed the procei-verhal. Exception dismissed. WiUon v. Rafter, 2 Legal News 411, Q. B. 1879. 8. In a seizure by recaption for rent to accrue, the new landlord being impleaded, the seizure should be declared binding until the end of the first lease if defendant do not pay the rent soonpr, or if the lease be not cancelled sooner, and defendant should be mulcted in costs. Sanafufon V. Boucher et al., 6 Q. L. R. 384, C. C. 1880. 9. An insolvent tenant fraudulently transferred his stock-in-trade to one of his creditors, whereupon the landlord issued a saii>ie arrH before judgment in the hands of such creditor within eight days from the removal, which proceeding was maintained as well for the amount of rent due as for the amount to become due. Lyman et al, v. McDiarmid d Taylor et al, 6 L. N. 162, S. C. 1883. 874. The provisions contained in article 841 apply like- wise to attachments for rent or farm dues. »75. Effects attached for rent or for farm dues cannot, without the consent of the plaintiff, be left in the custody of the defendant, unless he gives sureties to the satisfaction of the sheriflf or bailiff for the production of the effects, and such sureties incur the same obligations and are liable to the same penalties as judicial guardians. C. S. L. C. c. 40, 8. 17. 1. In an action for rent, held, that the prods-verbal of seizure could bo left at the domicile of the defendant although he be absent, and that such defendant could be legally constituted the guardian of the effects seized, and be compelled by contrainte par corps to produce the same, unless he can establish that when the seizure first became known to him the effects were no longer in his possession. Mu7in v. Halferty, 1 L. C. R. 170, S. C. 1850. 2. The lessor cannot by private writing between him and the lessee prolong the exercise of his right of recaption upon the effects furnishing the property leased beyond the eight days when such effects are the pro- perty of third parties : his right is absolutely extinct after the lapse of eight days and he can no longer enforce a revendication. Hearn v. Vezina et al. db D'Oraomeiii, 6 Q. L. R. 93, C. C. 1880. OF JUDICIAL SEQUESTRATION, ARTS. 876-877. 516 CHAPTER FIFTH. OF JUDICIAL SEQUESTRATION. ^70. All demands for sequestration are made by petition to the court [or to a judge] . It may also, according to circumstances, be ordered by the court without being demanded by the parties. 1 Couc. 123 ; Ord. 1667, tit. 19, art. 12 ; 1 Pig. 117-170, 172, 387, 388 ; Guyot Vo. Eeven- dication, 621 ; Imbert, Enchiridion, pp. 195-6. 1. A judge in chambers has jurisdiction to appoint a sequestrator to an immoveable seized under an execution, when its sale has been stopped by an opposition, Sinkal et ah v. Vienne, 14 L. C. J. 335, S. C. 1870. 2. Where a plaintiff has obtained judgment against defendant upon a mortgage, he may upon affidavit that the property is insufficient to secure the mortgage debt, prevent defendant from collecting the rents thereof, and to that end may have a sequestrator appointed to collect the rents under arts. 1823, C. C. and C. C. P. 876, even while an inscription in review from the judgment is pending. Di-ummond v. Holland, 23 L. 0. J. 241, S. C. 1879. 3. A judge of the Superior Court may name a sequestrator pendente tite in an action to set aside a testamentary executor for maladministra- tion. Brooks V. Dlownfield, 23 L. C. J. 140, 9 R. L. 639, Q. B. 1875. See Heritable Sec. & Mort. In. Ass. v. Racine, 24 L. C. J. 107, S. C. R. 1879. 4. Appointment of sequestrator to estate pending appeal. Boss v. Rest, 2 Q. B. R. 349, Q. B. 1882. 5. Qiuere. — Whether the Court of Queen's Bench may appoint a seques- trator. Ross et vir v. Ross et vir, 5 L. N. 134, Q. B. 1882, See art. 645, ant6. M'\ 1 1 1 1 S77. The judgment ordering sequestration commands the parties to appear bafore the court or before a judge, on a day fixed, to name a sequestrator ; and if the parties cannot agree, the court, or judge, names one of his own accord. Ord. 1667, tit. 19, art. 4. I 516 OF JUDICIAL SEQUESTRATION, ARTS. 878-883. 878. The sequestrator must be sworn before the judge or the prothonotary to administer well and faithfully the things of which he is appointed depositary. He is put in possession by a bailiflf, who draws up a statement containing a description of the property seques- trated. This statement should be signed by the bailiff and also by the sequestrator, if he can sign; if he cannot, mention should be made that he declared he could not sign, after he was called upon to do so, and the statement had been read to him. 1 Couc. 123; Ord. 1667, arts. 6 — 9. H79, If among the things sequestrated some are con- sumable or perishable, the sequestrator may cause them to be sold, observing the formalities prescribed for the sale of moveables under execution. 1 Couc. 123. 880* If the thing sequestrated consists in a right of en- joyment, the sequestrator, if there is no conventional lease, is bound to give out the lease by auction. Ord. 1667, art. 10. 881. Neither party can, directly or indirectly, become lessee of the things sequestrated. Ibid. art. 18. 88S. Kepairs or other necessary expenditures cannot be made upon the premises sequestrated without the authori- zation of a court or judge, upon petition, of which the oar ties have received notice. Ibid- ,19.. 883. Sequestrators are subject to me duties and obliga- tions imposed upon guardian^ in seizures under execution. They are, moreover, bound to render an account of their administration when judgment has been given upon the contestation, and also whenever, pending the suit, the judge orders them to do so, at the instance of either of the parties and upon cause shown. Whenever moneys have been paid into Court, or are in the hands of the sheriff or the coroner, and their adjudication OP JUDICIAL SEQUESTRATION, ARTS. 883-8G6. 617 happens to be delayed for an indefinite time, either by contes- tation in the suit, or for other reasons, the Court may, upon the application of one of the parties, and after the others have been heard or duly notified, order that the moneys be placed in the hands of some other sequestrator charged with investing them until judgment, so that they shall bear interest or profits in favour of the jjarty who eventually will be entitled to receive them, or may order the first sequestrator or depositary to invest them in like manner. 35th Vict. c. 5. (Que.) : C. The third paragraph of article 883 is hereby repealed. 36 Vict. c. 14 (Que) : 3. Every bailiff of the Superior Court, who shall have received any smn of money arising from a seizure or judicial sale, and exceeding in amount $100, shall, unless he has lawfully handed over, distributed, or paid such sum, before making his return, deposit the same in the prothonotary's office of the district within the limits of which the writ has issued, together with his return. Judicial and other deposits are regulated by the Acts 43-44 Vict. cap. 8, 35 Vict. cap. 6, and 36 Vict. cap. 14 (Que.) The 6th section of the latter Act provides that moneys deposited according to its provisions may be attached in the hands of the Treasurer of the Pvovince in the usual manner by garnishment either before or after judgment. 8S4. A sequestrator is discharged by law upon his deliv- ering the property sequestrated to the party named in the judgment of the court, and also in the manner stated in the title Of Deposit in the Civil Code. HH!i, Orders of sequestration are executed provisionally, notwithstanding and without prejudice to any appeal. Ibid. art. 19. 886. If either party, by violent means, hinders the ap- pointment or the administration of the sequestrator, the other party may apply to be put provisionally in possession of the things in dispute, under the same conditions as a sequestrator. Ibid. art. 16. i. ^ ! > !' ! b M y ■ k K^ 518 SUITS BETWEEN LESSORS AND LESSEES, ART. 887. TITLE SECOND. SPECIAL PROCEEDINGS. CHAPTEK FIEST. SUITS BETWEEN LESSORS AND LESSEES. 887. Actions to annul or to rescind a lease, or to recover damages resulting from the contravention of any of the stipulations of the lease, or the non-fulfilment of any of the obligations which the law attaches to it, or arising from the relation of lessor and lessee, are instituted either in the Superior Court or in the Circuit Court, according to the value or the amount of the rent, or tho amount of damages alleged. C. S. L. C. c. 40, ss. 1-2, 25 V. c. 12, s. 1, 1. Where a tenant persisted against the landlord's will in occupying the premises, an action to eject her under art. 887 could not be main- tained for want of jurisdiction, there being no lease and no occupation with the consent of the proprietors. School Com. St. David v. DeVarennes, 4 Q. L. R. 206, C. C. 1878. 2. The proceedings in an attachment for rent and ejectment cannot be maintained under the Act unless founded on a leaso or on proof of occupa- tion with the consent of tlio proprietor. Dubeau v. Dubeau, 8 L. C. E. 217, Q. B. 1857 ; Parent v. Oisel, 9 Q. L. R. 135, 8. C. R. 1883. 3. A writ under tho Lessor and Lessee Act, summoning a defendant to appear before " one or more of tho judges for our S. C. for L. C, in the district of M. in the hnU of the Court-house, wherein are usually held the sittings of our said Court," is null, as such writ should be returned before the Court. Grant v. Brown. 6 L. C. R. 187, Q. B. 1856. 4. The writ in an ejectment case need not be specially styled such, and an order to appear on the return day is sufficient, without saying " at noon " on that day. The Fraser Institute v. Moore et al., 19 L. C. J. 133, S. C. 1875. SUITS BETWEEN LESSORS AMD LESSEES, ART. 687. 519 6. Where action is brought in ejectment under the common law, the jorisdiction of the court is determined by the amount of the annual rent and the damages combined. Oauthier v. Desy, 9 Q. L. B. 13, S. C. K. 1882. 6. In actions in ejectment the jurisdiction of the court is determined by the amount of the annual lease, and not by the amount claimed. Dmon V. Poulain, 4 R. L. 566, C. C. 1872. 7. So also in actions to rescind a lease. McGinnia v. Horsman, 14 L. G. J. 224, 8. C. R. 1870; Beaudry v. Thibaudeau, 7 L. C. J. 187, C. C. 1863 ; Guy V. Goudreault, 14 L. G.B.203, B.C. 1864 ; Contra : Voigard v, Saunders, 1 Legal News, 41, Q. B. 1877 ; Beaudry v. Denia, 20 L. C. J, 254, Q. B. 1876 ; Fiaher et al. v. Vachon, 6 L. C. J. 189. 8. The plaintiff claiming £500 damages from the defendant, for breach of contract in refusing to give him possession of certain premises, accord- ing to the, terms of a written lease, brought his action under what is known as the Lessor and Lessee Act, and the defendant declined to the jurisdiction — Held, in two decisions, one on the demurrer of the plain- tiff, and one on the merits of the exception, that the court had no jurisdiction. Close v. Close, 3 L. C. J. 140, S. C. 1857. 9. In an action by a lessor against a lessee for damages occasioned to the premises, and for violation of the conditions of the lease in sub-letting — Held, on the declinatory exception of the defendant, that it was the amount of the annual rent and not the gross amount for the whole term of the lease which governed the jurisdiction. Bedard v. Dorion, 3 L. C. J. 263, C. C. 1858. 10. In an action on a lease for a term of five months — Held, that where the term of a lease was less than a year, and the amount of the rent for the time specified did not exceed £50, the Circuit Court had jurisdiction, notwithstanding the 5th section of the Lessor and Lessee Act, and not- withstanding the annual value or rent of the property leased would exceed £50, if the terni extended to a period of one year. Clairmont et vir v. Dickson, 4 L. C. 0. 4, C. C. 1859. 11. In actions under the Lessor and Lessee Act, it is not the amount of damages claimed, but the annual amount of the rent which determines the jurisdiction of the court. Barhier v. Vernier, 6 L. C. J. 44, S. C. 1861. 12. Action was brought before the Superior Court to recover arrears of rent for seven years, at the rate of 8100 per year, and the defendant excepted to the jurisdiction on the ground that, under the Lessor and Lessee Act, the Superior Court had no jurisdiction where the annual rent did not amount to 9200 — Held, maintaining the pretensions of the plain- tiff, that as the action was brought under the common law and not under the Lessor and Lessee Act, and the procedure in ordinary cases had been followed, the Snperior Court had jurisdiction as in an ordinary action for »700. Fisher et al. v. Vachon, 6 L. C. J. 189, S. C. 1862. '\h ni '.;;'• P I •■'' I ':\ ' ! ' •!*■■■.'. U\H>: J . I • \f ;'!■■■! m-i I 620 SUITS BETWEEN LESSORS AND LESSEES, ART. 887. 13. But held at the same time, that, if the action had been for damages for the non-fulfilment of the conditions of the lease, the result would have been different. Ibid. 14. Art. 887 applies to cases where damages are claimed for trouble and annoyance. AttyGen. v. Cottf, 8 Q. L. R. 235, 8, C. 1877. 15. The Circuit Court has jurisdiction in a case to resci..dthe loiiao where the amount of damages laid is within the jurisdiction of the Circuit Court, although the yearly rent is in excess of the amount for which an ordinary suit may be brought in that court. Choquet v. Hart, 21 L. C. J. 805, C. C. 1877. 16. An agreement whereby one person leases a mill to another for twelve years, who binds himself to erect certain buildings on the prem- ises and to pay an annual rental, may form the basis of an action under the Lessor and Lessee Act. Marett v. llohitaiUe et at., 9 R. L 420, Q. B. 1876. 17. An action in ejectment under the Lessor's Act is a t^ersonal action though a promise of sale be stipulated in the lease in favour of the lessee. Menzies v, Bell et vir, 3 L. N. 169, 8. C. 1880. 18. In a cause under the Lessors and Lessees Act to have a lease annulled by reason of the violation of a clause prohibiting the sub-letting of the premises leased, the sub-tenant may be impleaded without adopt- ing the usual forms of procedure, and an exception to the form alleging that a sub-tenant cannot be so impleaded is bad. lihhume et al. v. Panneton et ah, 9 R. L. 594, Q. B. 1879. 19. An action for the recovery of rent due only does not fall within the operation of the Statute concerning Lessors and Lessees. Waygoncr v. Bicker et al., 13 L. C. R. 102, Q. B. 1862. 20. Proceedings under the Lessor and Lessee Act cannot be taken in a case of emphyteutic lease. Lepine v. The Jacques Cartier P. B., S. 20, L. C. J. 300, Q. B. 1876. 21. An action to annul a lease of moveables cannot be brought under this article, it applies to leases of immoveables only. Monarque v. Clarke, 7 L. N. 361, C. C. 1884. 22. Where the plaintiff and defendant had agreed with a third person that a piano which the latter was about to lease to the defendant should not be liable for house rent, and the piano was subsequently seized for such rent, it was Held that the defendant could not oppose the seizure on the ground of the agreement in question, as it was made for the sole benefit of the third party. Corse v. Hudson, 3 L. N. 78, S. C. R. 1879. SUITS BETWEEN LESSORS AKD LESSEES, ARTS. 888-893.. 621 HHH, The lessor may join with his action for rescission, a demand for such rent as he is entitled to, with or with- out an attachment for rent, attachment in recaption, if necessary, and also an ordinary attachment in the hands of the lessee or of garnishees. C. S. L. C. c. 40, s. 1, § 6, s. 9. HH9' All the powers which the Superior Court or the Circuit Court can exercise in terra in such matters, may also be exercised out of term, and even during the vacation, between the ninth of July and the first of September. Ibid. ss. 5-6. H90» The delay upon summons is only one intermediate day when the place of service is within a distance of five leagues, with the ordinary extension when the distance is greater. Ibid. s. 10. Vide ante art. 75. 1. The one day mentioned in this article must he a juridical day. St. Onge v. l.uricheUire, 21 L. C. J. 27, 8. C. 187G ; Durhy v. Bombardier, 2 L. N. 202, S. C. 1879; contra: lioulerisse v. Hubert, 2 L. N. 190, 209, S. C. 1879. Mtfl. The defendant is bound to appear before noon on the day fixed by the writ ; if he does not, default is recorded against him, and the plaintiff may proceed accordingly. Ibid. B. 11. H92» The defendant having appeared is bound t • plead before noon on the day following, in default of which the plaintiff may proceed ex parte. Ibid. M03. The plaintiff is bound to file his answer before noon on the day after the filing of the pleas, on pain of being foreclosed. Ibid. s. 12. Any other pleading which may be necessary to complete the issues must be filed before noon on the following juridi- cal day, on pain of foreclosure. 1 '-it ■!> w p. 4|f F'"! i' :ji)r K'i ■'^ 622 SUITS BETWEEN LESSORS AND LESSEES, ARTS. 894-&99. S04. As soon as issue is joined the case may be inscribed upon the roll for proof for any subsequent juridical day, and the parties proceed to proof on the day appointed and continue on from day to day until the proof is closed on both sides. Ibid. s. 18. HOU, Either party's proof may be declared closed as soon as he ceases to produce evidence. Ibid. s. 18, § 2. SOO. The evidence of witnesses must be taken down in writing, unless the parties agree to take it otherwise, and in the latter case, notes of such evidence must be taken down and filed in the record as forming part thereof, and such notes are considered to be the evidence adduced in the case. Ibid. s. 14. S07* When the proof is closed on both sides, the case may be inscribed on the roll for hearing on the merits on the next following juridical day, without any notice being required ; but if it is inscribed for any other day, notice must be given to the opposite party. Ibid. s. 13, § 2. H9H. Judgment may be rendered either in term or out of term. Ibid. ss. 5-6 ; 25 V. c. 12, s. 1. 890* The writs of summons, of attachment, and of execution, are addressed to the ordinary officers of the court, like all other writs of the same nature, and by them exe- cuted. Writs of possession granted by the Circuit Court are addressed to and executed by bailiffs of the Superior Court. C. S. L. C. c. 40, s. 8. See 33 Vict. c. 17, s. 1 (Que.) supra, art. 48. m fl! PETITIONt) TO iJiSLL LANDS, ARTB. 900-902 C23 CHAPTER SECOND. HYi'OTHECAUY RECOURSE 'AGAINST IMMOVEADLKS OP WHICH THE OWNERS ARE UNKNOWN OR UNCERTAIN. 900* When the owner of an hypothecated immoveablo 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 immoveable. C. 8. L. C. c. 40, s. 1. A petition under art. 000, C. C. P., cannot bo preflented to a judge in chambers. Tho creditor's hypothooary recourse under this article can only be exoroisod where the proprietorship remains uncertain after due dili({enoe has been used to ascertain the owner. Exp, The City of Montreal V. Loiynon, 4 L. N. 880, S. C. 1881. OOl* Such petition must contain : 1. All allegations necessary to establish the debt and tho hypothec ; 2. A description of the immoveable ; 8. The name of the occupier, if the immoveable is occu- pied, and if it is not, tho name of the last known occupier, the period for which it has remained unoccupied, the names of all tho known owners since the hypothec was created, and a declaration that the petitioner has in good faith made due search and used due diligence to discover the owner ; 4. Conclusions prayivig that public notice be given to the actual owner to appear and answer the petition, and that in default of his doing so the immoveable be brought to sale. Ibid. s. 1, §§ 1-2-3. 005. The petition must be accompanied with an aiBda- vit of the petitioner or of a competent person attesting the truth of the facts therein alleged. Ibid. s. 4. if i , I ■ I 'h '■;ll *■ ■, ■I I ;!f- 1 '(■;■ it ' f! t' U 624 PETITIONS TO BRLL LANPH, AllT. 003. fl03. The court, upon this petition, ordern such proof aR it cluems necessary ; and if the proof offered is suflicient, it orders the publication of a notice in accordance with form number 47 in the appendix to this code. Ilnd. s. 2. Form No. 47. In connection with article 903. Form of Xotice in the Neii'nptijx'ra. Lower Canada, ] District of J {Name of Placn.) day of Know all men that A. B., of the parish of in the District of , by his petition filed in the oflico of the Superior Court under No. , prays for the sale of an immoveable situated in the said District, to wit : A land containing arpents in front, by in depth, in the first range of the Seigniory of , in the Parish of , in the County of , bounded as follows, to wit : which land is now occupied by D. C. (or has not been occupied for years, and was last occupied by N.) and the said A. B., alleging that by Deed of (entered into by D. E. of before F. G. Notary, {or as the case may he) at on the a hypothec was constituted upon the said immove- able hereinabove described, for the sum of , claims from the present proprietor of the said immoveable the sum of due to him for The said A. B. further alleges that the present proprietor of the said immoveable is unknown {or uncertain) and that the known proprietors since the date of the said Deed of , have been N. G. and F. I'KTITIONS TO FiCLL LANDS, AKTS. 90B-905. 526 Notice ib thurefort giveu to the proprietor of the immove- ahlu to appear before the eaid Court at within two months, to bo reckoned from the fourth publication of this present notice, to answer to the (kiurutd of the said A. ]]., failing which, the Court will order that the said immove- al)le bo sold by Sheriffs Bale. First insertion , {(late) H. P. Prothonotary. 004* The notice must be insortod once a week during four consecutive weeks in one newspaper published in the Euglish language and in one newspaper published in the French language, in the District in which the immovoablo is situated, or if there be none, then in one of the nearest dirftricts. It must moreover be read and posted up, in both languages, at the door of the church of the parish in which the inunoveablo is sittiated, on a Sunday, immediately after morning service. Ibid. 83.3-4. [If tliero is no church, then the notice must be posted up in the registry office of the locality.] 1I05> If, within the delay of two months from the last insertion in the newspapers, and the reading and posting up of such notice, no person appears as hereinafter provided, tlie petitioner proceeds as in any other auit in which the defendant fails to appear ; and upon proof that the required formalities have been observed, the court declares the immoveable liypothecated, and orders that it be sold for the payment of the petitioner's claim. Ibid. s. 5. y 1 1 .-, r : ■V-'t i ■ r;,J. n tf'J 't|.I ; ' . I ■ m 1* i"ii,! m 526 PETITIONS TO SELL LANDS, ARTS. 905-908. Form No. 48- In connection with article 905. Form of Writ for the sale of the immoveable. To the Sheriff of the District of W eas the following notice hath been given in confor- mity xth article 903 of the Code of Civil Procedure of Lower Canada {recite the notice) ; and whereas judgment was rendered on the day of , ordering the sale of the immoveable described in the said notice, you are hereby enjoined to make the ordinary announcements thereof and to sell the said immoveable in order to the payment of the said A. B., of the sura of and taxed costs, and you shall make a return of this Writ and of the oppositions which have been placed in your hands on the H. P. 906. Service of this judgment is not necessary. Ibid. s. 15. 007. Upon the judgment thus rendered, a writ issues, after the expiration of fifteen days, commanding the sheriff to seize and sell the immoveable hypothecated, observing the formalities required for ordinary seizures and sales of immoveables, saving the minutes of seizure, which are not required. Ibid. ss. 6-15. 90^» Any proprietor, or any holder entitled to 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 at the expiration of a delay of two months, the peti- Q confor- sedure of ludgment , ordering otice, you .ncements Br to the ad "Writ and r hands on H. P. PETITIONS TO BELL LANDS, ARTS. 908-910. 527 tioner is then bound to file in the prothonolary's oJBfice a demand against the party appearing, for the recognition of the hypothec, and to serve it upon such party ; and the same proceedings are had upon such demand as upon ordinary suits for the recognition of hypothecs. Ibid. ss. 7-17. Form No. 49. In connection with article 908. Form of Appearance. I, B. C, appear to answer to the petition of A. B., as proprietor of the immoveable described in the said petition, by virtue of {state by virtue of tvhnt title you are proprietor, and give the date of the Acts or Deeds by virtue of which you are such proprietor). ...i cy. Ibid. s. yrit issues, the sheriff observing id sales of ich are not to exercise rendering ippearance, property, 8, the peti- OOf>* If several persons appear, claiming to be owners, each one in opposition to the others, the petitioner cannot be prevented from proceeding by such opposite claimants, unless his application is contested by one of them, who must previously establish an ostensible right of property, or unless one of them pays the amount of his claim and costs. Ibid. ss. 8-9. 910. In the case of there being opposite claimants to the property, without any contestation of the petition, the court may, reserving its decision upon the opposite claims, grant the prayer of the petitioner, saving to the parties appearing, and to those who have not appeared, their claims upon the balance of the moneys levied, the distribution of which is made in the ordinary course. Ibid. ss. 11-12. ''i>w: Hi! i -jt';?:' .■'m 528 PETITIONS TO SELL LANDS, ART. 911. I I Oil. If one or more known owners are in possession, jointly with others who are unknown or uncertain, the creditor may, in the ordinary manner, sue the known owners, as possessing jointly with others unknown, and proceed in the same suit, in the manner hereinabove provided, against those who are unknown or uncertain, modifying the notice which is io be published, so as to meet the circumstances. Ibid. 8. 16. 83 Vict. c. 16, (Que.) : 1. Whenever land has been sold, under a deed of sale, and the seller is entitled, by reason of non-payment of price or any other cause, to demand the dissolution of the sale, and the buyer has abandoned the land and has left it so abandoned during two years or a longer period, then the seller may proceed in a summary manner as hereinafter provided to recover back the land so sold, and re-enter into possession of the same. 2. A notice shall be served upon the buyer stating that at a time and place therein mentioned the seller will apply to a judge of the Superior Court to recover back the land, or if the buyer cannot be found within tho district, he may be ordered to appear in the manner prescribed by article G8 of the Code of Civil Procedure. The notice shall likewise be served upon any person then in actual possession of the land. 3. The delay between the service of the notice and the day on wliich the application is to be made shall be that prescribed for ordinary cases by article 75 of the said Code, or that given by the said article 68, as the case may require. 4. After notice has been so given, and at the time and place mentioned in the notice, the seller may, by a petition setting forth the facta of the case and supported by affidavit, and production of the written evidence of sale, if in his hands, apply to a judge of the Superior Court to have the deed of sale declared void, and to bo put in possession of the land. 5. No contestation of the said petition shall be allowed except by counter-affidavits produced within throe days after the presenting of the petition. ^. After the said delay of throe days the judge may, in his discretion, either reject the petition or render a judgment declaring the deed of sale void, and authorizing the petitioner to take possession of the land. In the event of the judgment rejecting the petition, it shall not prejudice the seller in any right he may have by law of bringing an action in the ordinary manner. ihen in actual PETITIONS TO SELL LANDS, ART. 911. 629 7. No such f ;r>nient shall be rendered if at any time before the ren- dering there: i<< buyer or any person for him or holding under him shall have pan. either to the seller or into the office of the prothonotary of the Superior Court the full amount of any instalments of purchase money or interest due in virtue of the deed of sale, or shall have fulfilled every obligation entered into therein by the failure to fulfil which the seller had become entitled to demand the dissolution of the sale. 8. If the seller is prevented by any person or persons from taking possession of the land in virtue of the said judgment, he may demand and obtain from the prothonotary of the Superior Court a writ of pos- session to eject such person or persons and to place the seller in possession, and article 660 of the Code of Civil Procedure shall apply to such writ. 9. The buyer may obtain a review of the same judgment, and articles 496 to 604 inclusive of the Code of Civil Procedure shall apply to such review. 10. All documents forming part of the proceedings under this Act shall form part of the records of the Superior Court. 11. Articles 2148, 2162 and 2163 of the Civil Code shall apply to the registration of any judgment rendered under this Act ; and to the oau- celling of the registration of any deed of sale declared void by such judgment, but article 2154 shall not apply if under section 2 of this Act, the buyer has been notified in the manner prescribed by article 68 of the Code of Civil Procedure. 12. In construing and applying this Act every buyer who having ceased to occupy the] land by himself or by his family, has either made no transfer of his rights in the land, or has made a transfer but has not notified the seller in writing of such transfer, shall bo deemed to have abandoned the land ; and no actual possession of the land by any person shall be deemed to be a notice of any such transfer. 13. The words '* deed of sale " in this Act shall mean and include not only any deed of sale but also any promise of sale or contract in the nature of a promise of sale followed by tradition and actual possession. 84 r. 0. 0. p. m ff ft"'" 1 i^ • \ -.■■. m ^ ' ■ 1 !■■■ 1 m % mm ! ■'■ ':]■ ;| • i ••';iSi # 'i ,' (V , i • i| ;h-^ ■I;'- - sis -iff^: 'k m Hl^fflS iinHulH^BBl ii m 580 TOWNSHIP LANDS HELD IN COMMON, ARTS. 912-915. CHAPTER THIRD. OF THE PARTITION OF TOWNSHIP LANDS HELD IN COMMON. 013. Any person seized as tenant in common of lands in townships originally granted, by letters-patent under the great seal of the Province of Lower Canada, to the grantees therein named as tenants in common, may demand a parti- tion thereof according to the ordinary form of law. Such demand may be made by petition, without the for- mality of a writ of summons. C. S. L. C. c. 14, s. 1. 013. The petition must be presented to the Superior Court in the district in which the lands are situated. Ibid, a. 5. 914. Upon proof of the petitioner's right of property, the court may order that his co-tenants shall appear on a certain day in term, but not before the expiration of one year from the date of such order, to answer such demand in partition ; that such order shall be posted up in some frequented place in the township in which such lands are situated, or, if there is no such frequented place, then in some frequented place in the next adjoining township, six months at least before the day fixed for the appearance of the parties interested ; and that such order shall be pub- lished in the Canada Gazette* once a week during the said period of s'x months before the day fixed for the appear- ance. Ibid. s. 2. 915. The co-tenants thus notified to make their claims must do so by an ordinary intervention ; and the grounds they may have to urge against the petition for partition * Now " The Quebec Official Gazette." bl Vict. cap. 13, sec. 4. (Que.) OOMPULSOBY PARTITION AND LIOITATION, ARTS. 915-919. 531 must be plead&d, and all issues in the case must be joined in the same manner as upon or('.inary suits in partition. Ibid. 8. 8. 916> The judgment ordering the partition is binding not only upon the parties who have appeared but upon those who have made default. Ibid. s. 4. 917* With the consent of the parties in the case, the court may, at any time before final judgment, refer the matters in dispute as^well as the partition itself to be decid- ed and finally determined by three arbitrators, one of whom is named by the petitioner, anothet by the interven- ing co-tenants, and the third by the court. The proceedings of the arbitrators must be had in such place in the township or parish in which the lands are situate, as they cr any two of them may appoint ; they may examine the witnesses, or the parties, who may be sworn before a judge, the prothonotary, a commissioner of the Superior Court, or a justice of the peace, and the award of such arbitrators, or of any two of them, is final. Ibid. s. 6. 91H, The court, as in all other suits, awards costs accord- iug to its discretion. Ibid. a. 7. wm i' n. H ■!•'!'- CHAPTER FOURTH. OF COMPULSORY PARTITION AND LIOITATION. 919. When co-heirs or co-proprietors cannot agree upon a partition of their common property, the action at law to obtain such partition belongs to the one who is first to institute it. 1 Pig. 762 ; 2 do. 414 ; C. P. C. 966-7. v./ ■ \' 582 dOMPULSORT PARTITION AMD LIOITATION, ARTS. 919-928. 1. In an action in lioitation of an immoveable property held par indivis by the parties— He/d, that saoh an aotion always contains a demand of partition, and in such aotion the parties, plainti£f and defendant, are in the same reletive positions, each party being at the same time plaintiff and defendant. Boswell v. Lloyd et ah, 12 L. G. B. 447, S. G. 1862. 2. And the oauee of action in such case is the joint ownership par indivis, and not the alleged indivisibility of the property itself. Ibid. 3. On demurrer to an action for a specific sum as the proceeds of a community between the plaintiff and his late wife — Held, that the action should be one of partage. Dupuia v. Dupuia, 6 L. G. B. 475, S. G. 1864. 930. All the co-heirs or co-proprietors must be parties iii the suit for a partition, without prejudice to the provisions of the preceding chapter. 1. In an aotion in partition of a succession all the co-heirs must bo parties to the suit either as plaintiffs or defendants. Laverdiire v. Laver- ditre, 1 Bev. de L6g. 347, E. B. 1816. 9S1. A special tutor must be named to each minor whose interests are opposed to those of any other minor. C. P. C. 968 ; C. C. Sue. 97. OSS. The court, before rendering judgment upon the suit for partition, orders that the immoveables shall be viewed and valued by experts appointed according to the ordinary rules ; in order to ascertain whether the whole of the immoveables can be conveniently divided, and, in such case, to form the shares according to the provisions of arti- cles 702, 703 and 704, in the Civil Code. 2 Pig. 420-442 ; C. P. C. 970-1. In an action for licitation the court may order the sale of the immove- ables without ordering the expertise mentioned in art. 922, where a witness swears that the immoveables cannot be divided, and that there are more co-proprietors than lots to be divided. Latouche et al. v. Latouche et al., 9 B. L. 700, Q. B. 1876. 023« If all the parties have attained full age they may agree upon one expert. C. P. C. 971. COMPULSORY PARTITION AKD LICITATION, ARTS. 924-929. 588 034» The same proceedings are had upon the report of such expert as upon any other report of experts. 2 Pig. 443 et seq., C. P. C. 971. OSJS* After the report of the experts has been homolo- gated, the court sends the parties before the prothonotary or some other person, to proceed with the allotment of shares, minutes of which are taken. 2 Pig. 444 ; C. P. C. 975-982. 920. If the suit is for an account and a partition, the lots are not formed until after the accounts, the returns, the formation of the mass, and the pretakings have been determined by a practitioner, who is named by the parties or by the court, and whose report must also be homologated. 2 Pig. 443 ; C. P. C. 976. 927* When immoveables cannot be advantageously divided, or when there are not so many lots of land as co-partitioners, the court may order that such immoveables be put up to public auction and sold by way of licitation. 2 Pig. 416-7, 421 ; Poth. Social, 170-1, 194. 1. The court will not order a sale by licitation if a partition can be aB advantageously made. BAUyar^ v. Duhamel et al., 2 Bev, de Leg. 441, K. B. 1820. 928* Rules concerning voluntary licitation are contained in the third part of this code. The provisions of this chapter apply to licitations judicially ordered upon actions for partition. 929. When the court has ordered a licitation, the plain- tifi must cause an advertisement to be published three times in the space of four months* in the Caiiadaf Gazette, in the French and English languages, stating that the • Now two months, 43-44 Vict. cap. 26, sec. 2 (Que.), t Now " The Quebec Official Gazette," 31 Vict. cap. 13, sec. 4 (Que.). nn ■\i'-^ ■: iv: 1^:'^ ::U )*5 J 584 COMPULSORY PARTITION AND LIOITATION, ART. 929. ' immoveables therein designated, will be put up to auction and adjudged to the highest and last bidder, at the sitting of the Superior Court next after the expiration of four months from the first insertion of such notice, subject to the conditions mentioned in the list of charges, and giving notice that all oppositions to the sale must be filed at least fifteen days before the day fixed for the sale, and that all oppositions for payment must be filed within six days after the adjudication, on pain of being foreclosed. C. S. L. C. c. 48, s. 3, and Schedule F. Form No. 51. In connection with article 929. LiCITATION. Lower Canada, District of Public notice is hereby given that under and by virtue of a judgment of the Superior Court sitting at , in the District of , on the day of , one thousand eight hundred and , in a cause in which A. B., {description at length) is plaintiff and C. D. {description at length) is defendant, ordering the licitation of certain im- moveables described as follows, to wit : {here insert the description of the property to be sold) the property above described will be put up to auction and adjudged to the last and highest bidder on the day of next, sitting the Court, in the Court Koom of the Court House in the said city {or town) of subject to the charges, clauses and conditions contained in the list of charges, deposited in the Office of the Prothonotary of the said Court ; and any opposition to annul, to secure charges, or to withdraw, to be made to the said licitation, must be filed in the Office of the Prothonotary of the said Court fifteen days at least COMPULSORY PARTITION AND LICITATION, ARTS. 929-982. 586 before the day fixed as aforesaid for the sale and adjudica- tion, and oppositions for payment must be filed within the six days next after the adjudication, and failing the parties to file such oppositions within the delays hereby limited, they will be foreclosed from so doing. 030» The notice must also be read and published on the third Sunday befoia the day on which the licitation is to take place, at the door of the church of the parish in which the immoveables are situated, and if there is no church or if the immoveables are not situated within the limits of a parish, then at the most frequented place in the locality, and a copy of such notice must be posted up at the place where such publication is made. Ibid. ss. 2-3 ; 27-28 V. c. 8v), 8. 1. 031* rif the plaintiff fails to proceed with the publica- tion of such notice within fifteen days from the judgment of licitation, any other party may do so, and the first who takes such proceedings has the preference, and has alone the right to be paid the costs of the licitation] . 032* Oppositions to secure charges, to withdraw, or to annul, in respect of immoveables which are to be sold by licitation, cannot be received after the fifteenth day previous to the day fixed for the licitation ; if they are filed after that period the right of the opposant is converted into an opposition for payment out of the price of the immoveables. C. S. L. C. c. 48, 8. 6. 1. A party having a hypotliecary claim upon one of the properties about to be sold under a cahier de charges containing no mention of his claim, but who has failed to file an opposition to the conditions of the sale within the delays, will not be allowed within the fifteen days immediately pre- ceding the date appointed for the sale to file an intervention setting up his claim, and praying to be allowed to contest the secured claims set forth in the cahier decharges, Savard et al, v. Savard, 8Q. L. R. 287, S.C. 1881. iia:iH'i| ■ I c- r'l IP Pm ■ i ] -la! i tm % 686 COMPULSORY PARTITION AND UOITATIOM, ARTS. 988-986. 988* If any opposition to secure charges, to withdraw, or to annul [or any other proceeding incidental to the lici- tation] , cannot be decided before the day fixed for sale, the licitation is suspended, and, when rendering judgment upon such opposition or proceeding, the court may, if necessary, fix another day upon which the sale may be pro- ceeded with, after the parties have caused another notice, in the same form as the first in so far as it can apply, to be published in the Canada Gazette,* at least three weeks before the day thus fixed. Ibid. s. 7. 984. Bids may be made in writing at the prothonotary's office, in the same manner as in cases of sale of immove- ables by the sheriff, and on the day appointed bids are received at the prothonotary's office, but *he adjudication is completed before the court, and minutes are drawn up of such bids and adjudication. Ibid. s. 2 ; 27-28 V. c. 89, s. 1. Strangers are in all cases admitted to bid. 98S* The adjudication is made in accordance with the conditions contained in the list of charges, which must have been approved by the court or judge, after hearing the par- ties, and must have been filed in the prothonotary's office at least [thirty days] before the day fixed f^r the sale. C. S. L. C. c. 48, s. 8. After the adjudication is completed, and the purchaser has complied with the conditions by paying the moneys which are to be deposited in court, the prothonotary must prepare a deed of sale which must be drawn similarly to a sheriff's deed in so lar as the provisions of article 689 are applicable. See Form 36, ante, under art 700. * Now " The Quebeo Official Gazette." 81 Yiot. cap. 18, eeo. 4 (Que.). COMPULSORY PARTITION AND LICITATION, ARTS. 985-988. 587 9, Bee. 4 (Que.; 1. The court cannot alter the conditions of the sale after lioitation, and thereby change the position of the purchaser. Comte v. Arcluimbault et vir, 8 B. L. 102, Q. B. 1876. 3. Where the conditions of sale require that the purchase-money bo deposited in the hands of the prothonotary, the court cannot authorize the retention thereof by one of the parties to the cause who has been declared a^udicataire, and who is apparently entitled to receive the money eventually, even on giving good security. Stamfleld et vir v. Stamfteld, L. 0. J. 108, S. C. 1864. 986* The adjudication, after the observance of the for- malities above prescribed, transfers the property with its active and passive servitudes, has the same effects as a sheriff's sale, and discharges the property in the same man- ner from such other charges, privileges and hypothecs, as are not mentioned in the list of charges. Ibid. s. 5. 1. An error as to the contents of an immoveable in a judgment ordering a partition is not a cause of nullity, and such error may be rectified in appeal by a judgment of that court with costs against the appellant. Peloquin et al. v. Brunet et al., 3 R. L. 386, Q. B. 1871. 2. The purchasv/ of an immoveable, sold by licitation in open court, cannot obtain possession of it without the intervention of the court which ordered the sale, if this possession is refused him by the occu- pant, notwithstanding that the latter was a party to the suit. Hu$ v. Millette, 9 R. L. 56, Q. B. 1876. Bee arts. 706 et seq. ante, for effects of a Sheriff's sale. 037> The price of the adjudication must be paid accord- ing to the conditions of the sale, and unless otherwise provided, into the hands of the prothonotary, saving the purchaser's right to retain the moneys on giving security, as in the case of a sheriff's sale ; and the purchaser failing to pay such price is subject to the same penalties and lia- bilities as the false bidder upon immoveables sold in execu- tion. Ibid. ss. 8, 9 ; c. 85, ss. 12, 13. 938. All oppositions or claims for payment out of the proceeds of the licitation must be filed in the prothonotary' s office within six days after the adjudication, after which \'] .r. " I ' !'• m \ , \i : t 1 V. 'M 1- i * I ■I. ','■'. ".y ._-. I J: II ih 1 h ■U 688 or AOTIOKS OF BOUNDARY, ARTS. 988-041. period they cannot be received, except by order of the court and upon such conditions as it may impose. G. S. L. C. e. 48, 8. 10. tt89a The distribution of the purchase money is subject to the same formalities as in cases of confirmation of title, and of execution against immoveables, and the party prose- cuting the licitation is bound to obtain the certificate oi registered hypothecs which is necessary for that purpuRo. Ibid. s. 88. fl40. If any immoveable is situated partly in one district and partly in another, its licitation as a whole may bu demanded and may be ordered in either district, if tlio jurisdiction in such case is not assigned by law to a partic- ular court. Ibid. s. 11 ; o. 82, s. 27. CHAPTER FIFTH. OF ACTIONS OF BOUNDARY, OR TO VERIFY OR RECTIFY ANCIENT BOUNDARIES. 041. Whenever two contig"'ous lands have never been bounded, or the boundaries have disappeared, or the fences or boundary works have been wrongly pl>.cr(\ :■ ..1 one of the neighbours refuses to agree upon a surveyor to detei - mine the boundaries, or to verify or to rectify the division II ae, as the case may be, the other party may bring an action a.r^Kir.st him to compel him to do so. OF ACTIONS OF BOUNDARY, ART. 041 . 689 1, In an action enbonmpe if tlio defendant ploada, aa be may, tbat ho holdn thu lanil wiiich ia in hia po^HAssion in ri(;ht of another, ho muat Rut forth in hia oxcf^ption t)ie name ami roHiilonceof tho peraon from whom ho hohla. Fortii-r v. Hfinhanlt, \\ llev. do L0«, 70, Q. B. I8lrt. 3. Tlie defendant in an ik ^ion en hormiuc cannot bo condemned to compel hia neighbour to homer with liim, and conciu^iona to that effect will be held bud on demurror. Fnttlet v, Labreqiie, 8 L. C. H. 21H, B. G. MM. 8. Whoro no boundary linea oxiat, an action en homage abould be b ' )iiKiit by him upon whom the oncrouchmonts are made, and not a |)o ilory action. lioberUon v. Stuart, 18 L. C. R. 462, 8. C. 18«3 ; The n t lii.r Committionen of Montreal v. Hall tt Lyman, fi L. C. J. 155, R. C. IHiH ; Fournier v. Lavoie, 15 L. C. J. '270, H. C. R. 1871 ; Graham v. Kemp- /,.;/, 16 L. C. J. 66, 8. C. R. 1871 ; Fraaer v. Qagnon, 4 Q. L. R. 881, Q. B- 1878. 4. Nor a posBeaaory action. Lalomle v. Vaomt, 8 L. C. J. 163, 8. C. 1864 ; Laprade v. Oauthier, 10 L. C. J. 18U, 8. C. 1866. 6. The operation of tho aurveyor who visits the locality and ahowa the linea separating the land of the parties is a preliminary proceeding which Hhould precede the placing of tho bounda. An interlocutory judgment is irregular which orders tho bounds to be placed before the parties have had an opportunity of being heard on the report by the surveyor of his preliminary o|)eration, and which fails to indicate where tho bounds should be placed. The proceedings of a surveyor in obedience to such a judgment cannot be rendered valid even by tho subsequent homologation of his minutes of survey, liroini v. Ferkitu, 6 Q. L. R. 143 j 10 R. L 427, Q. B. l'<80. 6. Where the case has been referred to a surveyor expert prior to an enquite being had before the court, and the surveyor is authorized to hear witnesses, it shall not be allowable for the parties to examine witnesses before the court on tho same facts as those concerning which the surveyor heard evidence, without special permission. Flante v. Legendre, 6 Q. L. R. 201, S. C. 1880. 7. In a boundary case, the Superior Conrt ordered a surveyor to make a plan of thi land to establish lines of division according to law, the titles and the possession of the partieo, and to lay down bounds to definitely delimitate tho properties. Two operations took place in virtue of this interlocutory judgment; and the bounds were placed each time in different places, at a distance of about twelve feet apart. The first report was rejectefl, and the second homologated. Held, revising the judgment a quo that the p».>urt could not order the bounds to be placed without, by its judgmt Qt, deciding on which line of division the bounds should be J V 1 ; .1 J,- J i' ,( I. ;r: 1 ^i I ■ ,t ff! : ; 'if • . I \ i! If 1' ■4 ; 'i. ! ■ * I '■'I 1 i'o ^.^ M ■A if m i If; i t r 'Tfii m 640 OF ACTIONS OF BOUNDABY, ART. 541. fixed. That, notwithstanding the operations done, there are not of record sufficient data to fix the division lines. That the court may in such case order a new survey, and the fihng of an extract from the official plan and book of reference, as well as extracts from the old Terrien and enregis- tered titles of the lands in question, so as to glean therefrom the necessary information. The costs of an uncontested action for boundary should be divided and not fall on defendant. Loiselle v. Paradia, 1 Q. B. B. 264, Q. B. 1881. 8. Art. 323 C. C. P. does not apply to the appointment of a surveyor iu a case of boundary. L'AMv. Hamel, 6 L. N. 154, Q. B. 1883. 9. A party cannot resist the homologation of the surveyor's report on the ground that the surveyor has already made a report in the case which was rejected as informal, and is therefore prejudiced. Such objection, if valid, should have been made when the surveyor was appointed. A surveyor named to fix the limits determined by the court, and to do the actc indicated in the judgment, need not be sworn. He acts under bis oath of office. The return of the service of a notice given to the parties by the surveyor pl-iting such notice was given between 1 and 4 p.m. suffices. A judgment recognizing plaintiff 's claims and rejecting those of defendant and ordering the fixing of the bounds in a particular place, is final, and cannot be modified by the same tribunal after final hearing. A defendant who pleads by demurrer, and by general denial and exceptions, in which he pretends to be willing to have the bounds fixed, but which contain pretentions that the court rejects, will be condemned to pay the costs of suit. Forest v. Heathers (& Hoey, 11 R. L. 7, S. C 1881. 10. If after the institution of the action the parties effect an amicable settlement of the line in dispute, no further proceeding will be allowed iu the cause. McFaid v. McFaul, 12 R. L. 597, S. C. 18G4. 11. The parties ma> , even after the surveyor's report, make oral and written proof in support of their pretensions, especially where the report shows the existence of two lines, without establishing to the satisfaction of the court which is the proper one. Boisvert v. Mastine, 8 Q. B. R. 72, Q. B. 1883. 12. If one of the neighbours has too much land and the other too little, the defect will be remedied, saving, however, such rights as may have been acquired by prescription. He whose title is explicit cannot obtain more than it gives him. The judge may and should refer to the Cadastre, old plans, etc., in order to clear up any doubts on the question of poBdesRiou. He who possesses as much land as his title gives him cannot plead to an action for boundary that the line between him and his neighbour on the other side fa not the true line unless he impleads such neighbour. Boulet et al. V. Bourdon, 12 R. L. 121, 8. C. 1882. ■e not of record ly in such case fficial plan and ;rs and enregis- a the necessary idary should be 1 Q. B. R. 264, of a surveyor iu 1883. eyor's report on 1 the case which uch objection, if i appointed. A t, and to do the [e acts under his jn to the parties id 4 p.m. suffices, lose of defendant lace, is linal, and ing. aeral denial and the bounds fixed, 'ill be condemned L.7,S.C.1881. feet an amicable all bo allowed iu t,, make oral and [where the report the satisfaction \ne, 8 Q. B. K. 72, OP ACTIONS OF BOUNDARY, ARTS. 941-945. 541 13. The plaintiff must prove his right of property, or at least, his possession. Mann v. Hogan, 11 B. L. 334 ; 8 Q. L. B. 1, Q. B. 1881. 942* If the parties do not agree, the court names a 8Worn surveyor, whom it charges with making a plan of the locality, shewing the respective pretensions of the parties, and with making such other operations as it may deem neceseary. 1. A surveyor cannot prevent the opening of his report until a sum he chooses to name has been paid. Dkary v. Poirier, 21 L. C. J. 27, 8. C. 1877. 1 Legal News, 211. 2. The surveyor need not certify that the parties had signed or had been requested to sign. Bouffard v. Nadeau, 8 R. L. 321, Q. B. 1876. See Brown v. Perkins, 6 Q. L. E. 143, remarks of Tessier, J. 3. Surveyors must be sworn before they can act under an order of the court. Melancon v. Venne, 5 B. L. 185, 8. C. B. 1872. 4. If not sworn, their report will be set aside though the rule appointing them does not order that they be sworn. Aitchison v. Morrison, 1 L. C. L. J. 112, S. C. 1865. 943. The surveyor thus named is bound, under his oath of office, to proceed in the same manner as experts. 94'i. If the parties desire it, more than one surveyor may be appointed. 945. The fixing of bounds, the verifying of ancient boundaries, or rectifying of division lines, is ordered in con- formity with the rights and titles of the parties, and is done by the person named by the court, who proceeds in accord- ance with the judgment, and if necessary, places boundary marks in presence of witnesses, in accordance with the provisions contained in chapter 77 of the Consolidated Statutes of Canada, and must draw up a statement of his operations, and return the original of such statement to the court. See 45 Vict. cap. 16. i m 1 '!'!l Ie •^d'^ti Irv,' i' ■ I i i ||;1" "'. '■ - vi i- t' 1 <) bV'. '. ' *' St i 1 ' f fl'i': ' ' '■ P " ^'t ll ■- 1 -:■: ;i fi ■U I '.,1 . i ; h! ■; s^ ■'■■ ai-.* ,■■'>! If' milMh lyiM 542 OF POSSESSORY ACTIONS, ART. 946. CHAPTER SIXTH. OF POSSESSORY ACTIONS. 046. The possessor of any immoveable or real right, other than a farmer on shares, or a holder by sufiferance, who is disturbed 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 to be main- tained in his possession. The action for re-possession may be brought by any per- son who has had possession of an immoveable or real right for a year and a day, against any person who has forcibly dispossessed him. 1. To succeed in a possessory action, the plaintiff must establish that he has had real and physical de facto possession of the property for more than a year, either by himself or his auteurs. Jiondeau v. Charbotnwau 11 R. L. 379, S. C. R. 1882. 2. In an action en r/integrande to recover possession of a lot of land from which the plaintiff alleged he had been forcibly ejected by tlic defendant, and for damages — Held, that an allegation of possession by the plaintiff is sufficient to maintain such action without alleging an annual possession. Stuart v. Langley et al., 1 L. C. R. 338, S. C. 1851. 3. In an action en complainte, possession for a year and a day ante- cedent to the day on which the trespass was committed must bo alleged in the declaration. Jourdaine v. Vigoreux, 3 Rev, de Leg. 39, K. B. 1809. 4. Held, reversing the judgment of the Court of Review, that the possession of a year and a day must immediately precede the trouble complained of, and must be continuous and decided ; and that carrying away wood already cut is not a trouble de fait sufficient to found an action en complainte. Guillemette v. Larnchelle, 2 L. C. L. J. Ill, Q. B. 186G. 5. Where the conclusions contain all that is necessary for an action en complainte, the action must be maintained. Doyon v. The Corporation of the Parith of St. Joseph, 17 L. C. J. 193, Q. B. 1873. 3 or real right OF POSSESSOR? ACTIONS, ARTS. 946-948. 643 6. The procedure prescribed by the Ordinance of 1667 is still in force with regard to actions en complainte, by a proprietor who is troubled in his possession by the construction of works in fraud of his rights, but the Ordinance has only in view a final judgment and not a provisional remedy. Girard v. liJlanger et al., 17 L. C. J. 36, S. C. 1873. 7. But when the possession is disputed and the trouble denied, the action degenerates into a simple action of damages which follows the ordinary procedure. Girard v. B^langer et al., 17 L. C. J. 36, S. C. 1873 8. The defendant may plead his title to the land in a possedsory action in order co determine the nature and quality of his possession. Paquette V. Bimtte, 11 R. L. 485, S. 0. R. 1882. 9. The plaintiff in support of his possession of a servitude, filed certain titles which he had not pleaded. Held, that as the action was not based on the titles but on possession which they might help to characterize, they would not be rejected from the record. Jh'luTiner v. Dupont, 10 Q. L. R. 221, S. C. R. 1884. 10. The consent of defendants given in a petitory action to the effect that they will givo up to plaintiff a part of tlie lands claimed after the service of the summons, binds the parties if plaintiff accepts. If both parties are in default to execute the settlement of the case so effected, they will each be condemned to pay their own costs. Chenard V. Lafotid, 6 Q. L. R. 96, Q. B. 1880. 11. The plaintiff may add the possession of his auteurs to his, to make up the year and a day in an action en complainte. Rondeau v. Charhon- neaii, 11 R. L. 292, S. C. 1882. 947- Possessory actions must be brought within a year from the disturbance. m mw ^f-m ^\4 .,■■ j! m 04H. Saving the provisions of article 1110, actions on disturbance, or for repossession, cannot be joined with the petitory claim, nor can the latter be brought until the action oil disturbance or for re-possession has been terminated, and the condemnation has been satisfied and executed. Nevertheless, if the party who has obtained judgment is in default with regard to the taxation of the costs and the liquidation of the damages, the other party may bring his petitory action, on giving security that he will satisfy such condemnation. If, i I ■ -n^ ^ U: 111 Oi M lU \A'm 544 OF DISCHARQE FROM HYPOTHECS, ARTS. 948-950. The tenant who ia sued in a petitory action is not entitled to ask that the action be dismissed, but merely that he be dismissed from the case when the lessor declared by him is brought into the record : if the latter deny that he is lessor, the tenant, on notice of such defence, must prove the truth of his declaration. Dupuis v. Bouvier, 27 L. C. J. 8,S9, 7 L. N, 92, S. C. R. 1883. See arts. 15 and 120, ante. CHAPTEK SEVENTH. OF DISCHARGE FROM HYPOTHECS, OR CONFIRMATION OF TITLE. 949. Any person who has acquired immoveable property by purchase, exchange, or other title of a nature to transfer ownership, may free such property from any hypothecs with which it is charged by obtaining a confirmation of his title according to the formalities hereinafter prescribed. C. S. L. C. c. 36, s. 1. 950« Such person must lodge the title which he seeks to have confirmed in the office of the prothonotary of the Superior Court, in the district where the immoveable is situated or in which the confirmation of title must be ob- tained, and obtain from the prothonotary a notice men- tioning that the deed has been so lodged, containing a designation of the deed and of the parties thereto, a de- scription of the immoveable, the date at which the appli- cation for confirmation will be presented to the court, an indication of the persons who possessed the immoveables during the three years next before such notice, and calling upon all creditors who claim to have any privilege or hy- pothec upon the immoveable to file their oppositions at least eight days before the day fixed for presenting the application. Ibid. ss. 2-4. Ill' N OF TITLE. OF DISCHARGE FROM HYPOTHECS, ART. 950. 645 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 luid in eitbir district, and avail for the whole of the immoveable. Ibid, s. 5. Form No. 50. In connection with article 050. Public Notice is hereby given that there has been lodged in the office of the prothonotary of the Superior Court, in the district of , a (Deed) made and executed before A. B. and colleague, notaries public, on the (lay of , between C. D. of , of the one part ; and E. F. of , of the other part ; be- ing a {s(dc) by the said C. D. to the said 'E. F., oi {a lot or parcel of land) situate, &c., and possessed by as proprietor, for the three years now last past ; And all persons who have or claim to have any privilege or hypo- thec under any title or by any means whatsoever in or upon the said {lot of land), immediately previous to and at the time the same were acquired by the said C. D. are hereby notified that application will be made to the said court on , the day of , for a judgment of confirmation, and that unless their claims are such as the Registrar is bound by the provisions of chapter thirty- six of the Consolidated Statutes for Lower Canada, to include in his certificate to be filed in this case under the said Act, they are hereby required to signify in writing their oppositions, and file the same in the office of the said prothonotary eight days at least before the said 35 F.C.C.P. !- 'I a M 1 1^^ I, '■■•■< w- V'MV ■ : : I- I -\: Mm i't f! y' 546 OF DISCHABOE FROM HYPOTHECS, ARTS. 951-965. day, in default of which they will be for ever precluded from the right of so doing. 951« The notice must be in French and in English, and be inserted three times in the course of four months in the Canada Gazette.* Ibid. s. 2, §2. 953. The notice must be publicly and audibly read, on the third Sunday before the day on which the application ia to be presented, at the door of the church of the parish or place where the immoveable is situated, or, if there is no church, at the most frequented place in the locality, and must be pobted up at the place where such publication is made. Idid. s. 2, § 2 ;— 27-28 Vict. 39, s. 2. 35 Vict. c. 6, (Que.) : 19. Article 952 is amended by adding the v">rd "third" in the second line, the words " or fourth." 953* In the case of immoveables by fiction of law, the proceedings are had in the district where the vendor or as- signor had his domicile during the three years next preced- ing the execution of the deed to be confirmed, or if during that period he had his domicile in more districts than one, then in the district in which he is actually domiciled, giving the same notice in the other districts in which he was domiciled during such three years. C. S. L. C. c. 36, s. 3. 954* Upon the day mentioned in the notice, the appli- cant is bound to present his application for confirmation to the court, together with certificates of the publication and posting up required, and copies of the Canada Gazette* containing the advertisement. 955* The applicant must, moreover, file with his appli- cation a certificate from the registrar or registrars within •Now the "Quebec Official Gazette," 31 Vict. cap. 13, sec. 4, (Que.) Hi " in the second OF DIBOHAROB FROM HYPOTHEOS, ARTS. 955-956. 547 whose divisions the immoveahle is or was situated, mention- ing all hypothecs not apparently extinguished, registered previously to the registration of the deed of which ratifica- tion is applied for. The certificate must mention all hypothecs registered against the immoveable itself, whenever hypothecs shall be so .dgistered, when the plan and book of reference will be in force in the registration division ; all hypothecs regis- tered against any person who was owner of the land at any time during the ten years immediately preceding the date of the registration of the deed sought to be confirmed ; and all previous hypothecs the registration of which has been renewed during that period. Such certificate must also state the date of the deed registered as creating or giving rise to such hypothec, the date of its registration, the names, occupation and residence of the creditor, the name of the notary or notaries before whom it was passed, if it is notarial, and must mention any partial discharge registered, and the sum which appears to be due, in principal and interest, and, in the case of renewed registration, such certificate must also mention the regis- tration which is thus renewed, and the registrar is not bound to extend his searches beyond the date of a sheriff's title, a sale in bankruptcy, a judgment of confirmation, or any other deed of a judicial sale, having the effect of a sheriff's Hale, which has been registered, except for such hypothecs as are not discharged by such deed. If there are no hypothecs registered, or if, by the registry books, all the hypothecs appear to have been discharged, the registrar must state the fact accordingly in his certifi- cate. C. S. L. C. c. 36, ss. 7. 10 ; 25 V. c. 11, s. 4 ; 27-28 V. c. 40, s. 1. See Form 36, ante, under art. 700. 956. The provisions of articles 701, 702 and 703 apply also to the certificate mentioned in the preceding article. Wff. mm ' ' If; i |[: ■i'n -If i ;j. ?l .,5;'^ ft u & :1;?1 ,1 1 '■ '■■''vJ ir3 m m lii'i ;S':i' 548 OF DISCHARGE FROM HYPOTHECS, ARTS. 9C7-969. 9H7» All hypothecary creditors, whose rights are not made known by the deed of which confirmation is sought, or by the registrar's certificate, are bound, on pain of bein^ foreclosed from doing so, to file their oppositions on or before the eighth day next preceding the day fixed for presenting the application. C. S. L. C. c. 30, ss. 15, 16. 1. A petitioner for judgment of confirmation bound liinisclf l)y his deed of acquisition to pay a m\m of money to a haiUi'ur de Jhiuh, who tiled opposition for the amount — Held, that tlie opposition would be admitted but without costs. Lenoir exp. v. Lamothe ct al., 10 L. C. 11. 451 & a L. C. J. a03, S. C. 1859. 1NTH. No opposition is, however, nceoasary for the preservation of tiie principal of rents created in place of seigniorial rights. Ibid. ss. 17, 18; 25 V. c. 11, s. 2. The provisions of articles 710 and 721 apply also to proceedings to obtain confirmation of title. fl31K During the four months proscriiicd for the publi- cation of the notice of an application for confirmation of title, any creditor of the vendor or assignor or of his authors, may appear at the prothonotary's office and bid an increase over the sum, price or other consideration or value, if any, mentioned in the title, and have his bid received, provided the increase be equal to at least one-tenth of the whole price, sum or other consideration, and the bidder offers, besides, to refund to the applicant all his costs and lawful disbursements, giving him security to that eflect in the ordinary manner, or depositing for that purpose a sufficient sum, according to the discretion of the court or judge, reserving the subsequent completion of the precise amount. C. S. L. C. c. 36, 8. 11. 1. Creditors who have tendered &n overbid, need not accompany Budi bid with a deposit, nor is it necessary that they should f,'iv(! notice of putting in secm'ity, nor need the sureties of such parties justify that vlicy are owners of immoveable property, nor need their bonds contain ii description of immoveable ijroperty to be specially hypothecated ; but -959. bts are not II is sought, min of beini; itions on or av fixed for i, 88. 15, IG. TiBoU hy Ilia ilcod foutU, wl»<> *^le<^ mid be admitted :,. C. 11. -isi & " ,savy for tlio B(l in place of , 11, 8. 2. apply alrio tu for the publi- confirraation of of his authors, bid an increase .r value, if" any, eived, provided ,h of the whole 3 bidder offers, losts and lawful tt effect in the pose a sufficient court or judge, Iprecisc amount. tot accompany surli loiild f?ivc notice of ilea juatif y tliat they \r bonds contain h hypothecated ; but OF DISCHARGE FROM HYPOTHECS, ARTS. 960-963. 5-10 the creditor will not be declared the purchaser until he has required the orif^inal purchaaer to declare whether he will retain the property i \e price oiTered, and paid the purchase money, nor will the ori^^inal par- chaser bo allowed to retain the property unless he pays the whole of the price, and in default of his doin>{ so, the creditor who has made the over- bid will bo allowed to deposit the price and become the purchaser. HtiKtoii J:.rp. V. The Quebec Ihiildiiiii Society, iJ L. C. 11. 2U7, H. C. 1853. 1HM>* Any otlier creditor of the vendor or assignor may, in like manner, and under the same conditions, outbid such creditor; and all such creditors niny continue outbidding each other, provided each outbidder oilers an increase of at least one-twentieth of the price,- purchase money or ether consideration, over and above the costs and lawful expenses. Ibid. s. 11, V2. 1101. The ajiplicant may, however, retain the immove- al)les at the amount of the highest bid legally offered. Ibid. §3. 1H(2. If no such outbidding takes place within the delay above mentioned, the value of the immoveable remains definitively fixed at the price and sum mentioned in the title deed, saving the provisions hereinafter m ade Foul. s. 11. 003. If the applicant desires to discharge the property i'rom hypothecs, he must deposit in the hands of the pro- thouotary, together with the certilicate of hypothecs, the price mentioned in his title deed, or the amount which such price has reached by the outbidding ; and if it appears by the certificate of the registrar that there are no hypothecs, and if there are no oppositions or claims, or if the amount deposited is sufficient to pay all the charges which appear, then judgment of confirmation is pronounced purely and simply. Ibid. s. 12. 35 Vict., c. G (Que.) : 20. Notwithstandint^ anything to the contrary contained in article 963, w'lenever the applicant for a judgment of confirmation of title has an it I '1 .'I M ' I ■) >'t ;. i 7 f '. t 11; I ■■ •« :f 4 I .'if! '■A :t;.: i ,;;:if i.'i'j ^'1 % lb' m !'■ ?■ I :itl II <"' m ¥ i li ■'■^^Ji ^!li :..' ■ . "%'l ii^i; / ' Mi ! ^ki'i mm i ffi 1 fe i|i :|^i' W 1 ■IS i.i if^ 560 OF DISOHAROE FROM flYFOTHEOB, ARTB. 968-966. hypothecary claim against the property, which appears by the cortiflcate of the registrar, he may retain tlie purchase money to the extent of his claim, nntil judgment has been rendered, provided he furnishes the pro- thonotary with good and sufficient sureties for all damages that might result to any party interested in the event of the non-payment of such sum as the court may order such applicant to pay into the hands of the prothonotary ; and upon such security being given, the amount so retained shall be deemed to be deposited, and the case shall be dealt with accordingly. 1. Where a purchaser demanded a ratification of title, and deposited the amount of the purchase money in Court, and filed a motion for note of such deposit, describing it as £100 with interest, whereas only £100 were lodged, and another motion was made to have the deponit declared irregular, because no sum for interest had been added, it was hald that the interest was no part of the purchase-price and the £100 were declared to be sufficient. Hart exp. 8 L. C. J. 40, S. C. 1852. 1MI4. But if the sum deposited is not sufficiei.u to pay all the charges and hypothecs which appear, or if no price is mentioned in the deed, the cou*! or a judge may, at the instance of the applicant, name two xperts, and ttte appli- cant names a third, in order to determine the value of the property and to report thereon ; the whole accordinj^ lu the ordinary formalities. Ibid. § 3. 90Sim 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 applicant cannot obtain a confirmation, unless he deposits the difference between the value thus ascertained and the price, or the whole of such value, if no price has been agreed upon. Ibid. § 4. fl6tt. The provisions of the last two preceding articles do not apply to cases of expropriation of property by com- petent authority for public purposes, when the compensa- tion or indemnity has been settled by arbitration or by experts, according to law. Ibid. s. 13. I OF DISOHARQE FROM HYPOTHFJOS, ARTS. 067-971. 551 007* Upon proof of the observance of all the formalities hereinabove prescribed, judgment is pronounced, confirming the title deed as free from all hypothecs, other than those mentioned in article 958. Ibid. s. 14. 1. The only effoot of tho judgment is to do away with niort({a|^oa with- out in any manner purifying the title-deed whioh retains all its imper- fections, aiackmeyer v. The Mayor, dtc, of Quebec tt Layneux, 11 L. 0. R. 18, 8. C. 18G0. OON. If the applicant is willing, and files a written declaration to that effect, judgment may be rendered subject to the hypothecs mentioned in the certificate of the registrar and to the oppositions and claims filed ; and in such case the immoveable is discharged from such hypothecs only as are not mentioned in such judgment. Ibid. s. 12. 900. The price deposited is distributed under an order of the court, like moneys levied upon the seizure and sale of immoveables under execution. Ibid. s. 19. 970. The prothonotary, before delivering to any person whatever a copy of any judgment of confirmation of title, is bound to cause such judgment to be registered in the proper registry office, as prescribed in the title Of registration of real rights in the Civil Code, and has a right to demand from the applicant the cost and expenses of such registra- tion, and of the cancellings which it occasions. 25 Y. c. 11, 8. 2. 971. The word " hypothec," in this chapter, includes all privileges affecting real estate. Ibid. s. 82. i i , '{■i rM m . ;J| . M !!i- B52 OF flKPARATION OP PROPERTY, ARTS. 072-974. CHAPTER EIGHTH. OF SErAllATION liETWKEN CONSORTS. SECTION I. OF BEPARATION OF PROPERTY. i ll 1 fl73* No suit for Beparatioii of property can be brought by a married woman without the previous authorization of a judge, granted upon petition to that effect or upon con- clusions for that purpose contained in the declaration in such suit. 2 Pig. 182 ; C. P. C. 8(55. 072I. Suits for separation of property must be brought only in the cases and within the jurisdiction mentioned in article 1311 of the Civil Code, and in article 85 of this code. 2 Pig. 181. 974. The formalities required for summons in ordinary cases must be strictly observed in such suits; and the con- sort summoned has no power to dispense with the same, either directly or indirectly, even as regards the delay upon the summons. [Notice of such suit must Le given and published during one month in the Canada Gazette * and in two newspaiJers 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 language. No proceedings can be had in such suit until after the publication of such notice.] 27-28 V. c. 17, s. 12, § 3. • Now " The Quebec Official Gazette." 31 Vict. cap. 13, sec. 4 (Que.) OF SKl-AUATION OF I'UOPKUTY, AUTS. 974-1)80. r)5d , 13, sec. 4 (Que.) Tlio wifo Huiii^ for Hopiimtion from bod and board in not ontitlud to auk that the dofoiiiltint bo furecluHod from making proof uiiIohh ho pay tho focD due to her attorney. Mi-Duinjiill v. Scott, i L. N. :i'2a, S. C. IHHI. 075. Any creditor of the person sued for separation of property hi\a a right to intervene in tho suit, in order either to watch the proceedings or to contest the phiintitf's claim, and he may for this purpose set up whatever grounds anil exercise whatever rights his dchtor might. Code, Conv. Matri. art. GO ; 2 Pig. 180 ; 27-28 V. c. 17, s. 12, § 3 ; C. P. C. 871. 1170. Separation of property thus sued for cannot be granted upon the confession or the admissions of the defen- dant ; tho allegations of the declaration must ho established by some other legal proof. 2 Pig. 18(5-7 ; C. P. C. 870. 1177- The judgment pronouncing separation of property may, at the same time, determine the reprises of the plaintiti', or order, that they shall be determined by a practitioner or by experts, if there be occasion for it. 2 Pig. 11)3-4. 97H, The judgment of separation must be executed and published in- accordance with the provisions contained in articles 1312 and 1313 in the Civil Code. C. P. C. 8GG-872. 071>* The wife who sues for separation may accept or renounce the community, according to circumstances. If the husband fails to make an inventory, she may, upon lieing authorized, have one made, if she has not renounced. If she accepts, the partition is effected in the manner pro- vided in the Civil Code, in the title relating to marriage covenants. 2 Pig. 182-3, 19G. 1IMO. [The wife's renunciation of the community must be registered in the registry office of the division in which the husband was domiciled at the time that the suit was brought.] I 'ii Ih 554 OF SEPARATION OF PROPERTY, ARTS. 981-982. OSl. The judgment of separation may be executed voluntarily or by legal means, as provided in article 1312 of the Civil Code, but without prejudice to the rights of third parties. [No married woman, separated as to property, can carry on trade until she has delivered to the prothonotary of the district and the registrar of the county in which she intends carrying on trade, a declaration in writing stating her in- tention, her names and surname and those of her husband, and the style under which she proposes carrying on such business. This declaration is entered and transcribed in the same registers as the declaration concerning partner- ships mentioned in chapter 65 of the Consolidated Statutes for Lower Canada. All married women, separate as to property, and carrying on trade at the time of the coming into force of this code are bound to comply with the above mentioned formalities within six months from such time. Any married woman failing to comply with the require- ments of this article, is liable to a penalty of two hundred dollars which may be recovered, before any court of com- petent civil jurisdiction, by any person suing as well in his own name as in behalf of the crown, and one half of such penalty belongs to the prosecutor and the other half to the crown, unless the suit be brought in the name of the crown only, in which case it is entitled to the whole of the penalty.] The penalty mentioned in C. C. P. 981 does not apply to cases where a married woman is carrying on a petty business with a stock of the value of a few dollars only. Ross v. Prud'homvie, 6 L. N. 37, S. C. R. 1883. 082. When the reprises of the wife consist of moveable property, the husband may oblige her to invest the proceeds thereof, or a portion of the same, in the purchase of immoveables. 2 Pig. 196. OP SEPARATION FROM BED AND BOARD, ARTS. 983 -986. 555 9^3* If the husband gives up immoveables to his wife in payment of her reprises, she must apply for and obtain a judgment of confirmation of the deed by which he does so, according to the formalities prescribed in the preceding chapter. Ibid. 984. If the amount at which the rights of the wife have been determined is not voluntarily paid, execution may be enforced as in ordinary cases. Nevertheless, the husband may compel the wife to receive immoveables in payment, at a valuation by experts, pro- vided such immoveables are available and do not prejudice her interests. Ibid. SECTION II. OF SEPARATION FROM BED AND BOARD. 985* Besides the provisions contained in the Civil Code on the subject of separation from bed and board, those of the present section also apply. 2 Pig. 216-7. 1. In an action for separation from bed and board it is not necessary to give notice in the Official Gazette or in any public journals, notwith- standing such action entails separation of property. Leclerc v. Lord, 4 E. L. 531, 8. C. 1873. 980* 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 summary statement of the facts which give rise to 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 neces- sary for her use. The application must be served upon her husband, if the judge so orders. 2 Pig. 216-7. mm i.l '■ ",'■■ :i*!.:-.. ''<'■"■[ if-: ' 1 '' f , ■ i ■ • ■ \ 1 i':'' ■ 1 1 ■; ■ !''■■- 1 ''-' }\ ':! -i ''\W ■^ . \'\:\ym ' \ ■ . V'ilip laj '^ ifi fit ,^,;|| 1 ' '■II 656 OF OPPOSITIONS TO MARRIAGE, ARTS. 987-991. OJ^7» If the wife thinks proper to demand au attach- ment of the moveable property of the community, she must likewise be authorized by a judge for that purpose. The attachment is efiected in the same manner as attach- ment for rent, but the husband remains judicial guardian of the property attached. 2 Pig. 184. Where a demand of separation from bed and board is accompanied by a gaisie gagerie conservatoire, the declaration may l)e served at the oiSce of the prothonotary within three days after the attachment. C. S. L. C. cap. 83, sec. 57. Benoit v. Denjanlius, 11 B. L. 646; S. C. R. 1B82. 9HH, The wife may also join with her demand for separation an attachment in revendication of such move- ables as belong to her. OMO. The trial of the case, the judgment, its execution, and its prblication are subject to the provisions contained in the preceding section. 1. When the husband suf^s his wife she does not require any authoriza- tion to ester en justice, Litssier v. Archambault, 11 L. C. J. 53, Q. B. 1848. CHAPTER .NINTH. OF OPPOSITIONS TO MARRIAGE. 990* [Every opposition to a marriage must be accom- panied with a notice indicating the day and hour at which the opposition will be presented to the Superior Court, or to a judge of such court.] 991. [The opposition and notice must be served both upon the functionary called upon to solemnize the marriage and upon the intended consorts, or the persons who repre- OF OPPOSITIONS TO MARRIAGE, ARTS. 991-996. 557 sent them, a delay of five intermediate days being observed, with the usual addition where the distance exceeds five leagues.] 9!l!2. [The proceedings upon the opposition are sum- mary, and conducted in the same manner as those in suits between lessors and lessees.] 003* [If the opposant fails to present his opposition upon the day fixed, any person interested may obtain judg- ment of non-suit against him, upon filing a copy of the opposition served upon such person ; and upon receiving a copy of such judgment the functionary called upon to solemnize the marriage may proceed.] SI04. [If the opposant fails to proceed in the manner prescribed the opposition is declared abandoned.] 1193. [The court or judge before rendering judgment upon the opposition may, if there be cause for it, summon the parents, or, in default of parents, the friends of the intending consorts, in order that they may give their opinion upon the intended marriage, and that such further action may be had as to law may appertain.] 096. [An appeal lies to the court of Queen's Bench from judgments rendered on such oppositions, the same formalities being observed as in appeals from the Circuit Court, and the proceedings on such appeal take precedence] . '<■ ':■ ! ''l^.*k\ r:v ! Wl 558 CORPORATIONS ILLEGALLY FORMED, ETC., ART. 997. CHAPTER TENTH. PROCEEDINGS AFFECTING CORPORATIONS OR PUBLIC OFFICES. SECTION I. OF CORPORATIONS ILLEGALLY FORMED, OR VIOLATING OR EXCEEDING THEIR POWERS. 097« In the following cases : 1. Whenever any association or number of persons acts as a corporation without being legally incorporated or recognised ; 2. Whenever any corporation, public body or board, violates any of the provisions of the Acts by which it is governed, or becomes liable to a forfeiture of its rights, or does or omits to do 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 : It is the duty of Her Majesty's Attorney-General for Lower Canada to prosecute, in Her Majesty's name, such violations of the law whenever he has good reason to believe that such facts can be established by proof, in every case of public general interest ; but he is not bound to do so in any other i ise unless sufficient security is given to indeinriify the government against all costs to be incurred upon such proceeding. C. S. L. C. c. 88, s. 9. 41 Vict. c. 13, (Que.) : 1. Article 997 of the Code of Civil Procedure, is amended, by adding thereto the following words : "and in such case the special information a PITBLIC LATING OR CORPORATIONS ILLEGALLY FORMED, ETC., ARTS. 997-998. 659 must mention the names of the person who has solicited the Attorney- General to take such legal proceedings and of the person who has become security for costs." 1. The remedy provided by art. 997 does not deprive a person of his I'ight at common law to bring an action in his own name to annul as illegal a by-law imposing a special tax. Any person may seek redress before the tribunals of the country agamst corporations by whose acts his rights or property may be injuriously affected, or by whom he may be in any way aggrieved, in the same manner and to the same extent as he could do so against individuals under similar circumstances. Hunt et al. V. The Corporation of Quebec, 4 Q. L. R. 275, S. C. 1878. 2. The Attorney-General alone can complain where defendant's trust is of a public and not of a private mature, and when a public board is accused of violating the Act by which it is governed. The St. Lawrence Grain Kiev. Co. v. The Harbor Commissioners of Montreal, 2 L. N. 197, S. C. 1879. 3. A corporator who alleges that he is suffering an actual injury from the unauthorized acts of a corporation, may institute an action in his own name without the intervention of the Attorney-General to restrain such ixnauthorized action. Molson v. 2'he Mayor et al. of Montreal, 23 L. C. J 169, Q. B. 1876. 4. The provincial Attorney-General is entitled, under this article, to pray that the charter of the Montreal Telegraph Co. be declared forfeited. Loranijer v. The Montreal Teleiiraph Co., 5 L. N. 429, S. C. 1882. Sec Loranger v. Dorion et al., 4 L. N. 108, S. C. 1881, 4 L. N. 373, Q. B. 1881. 1MKS« Hie stimmons for that purpose must be preceded by the presentimj to the Superior Court, in term, or to a judge in vacation, of a special information, containing conclunons adapted to the u<(ture of the contravention, and supported by ({(fidarits to the satisfaction of the court or judge ; and the writ ' t ■s; ; Hii'lil ^'M ^\imm \y 'M I) , If! -I I'll! ' ^^' !fc *! ■H 1 ffl| H ^9ii 1 560 CORPORATIONS ILLEOALLY FORMED, ETC., ARTS. 998-1003. by an affidavit to the satisfaction of the court or judge, and the writ of summons cannot issue upon such information without the authorization of the court or judge. This writ, as well as the writs of quo warranto, mamhimus and prohibi- tion, shall bo in the same form as ordinary writs of summons." 1. It is not necessary that the judge's order direct the respondent to appear at the place mentioned in the petition. Bureau v. Nonnand d- Gouin ct ah, 5 R. L. 40, S. C. 1873. fMHK The writ of suraraons commands the persons acting illegally as a corporation, or the corporation complained of, to appear on a day fixed l)y the court or judge. It is served, in the first case, upon some one of the persons usurping corporate rights, or at the principal office or place of business of the association, speaking to a reason- able person ; and, in the second case, according to the provisions contained in articles 61, '12, 63 and 78. Ibid. s. 10, §§2,3. 1000. The delay upon summons is three days, with the usual extension when the distance exceeds five leagues, as prescribed by article 75. Ibid. s. 1, § 2. See ante, art. 75. 1. The delay after rjervice of a writ of quo iciirranto, when in conformity with art. 1000 of the Code of Procedure, is three days. Eureau v. Noniuind d- Gouin et ah, 5 11. L. 40, S. C. 1873. 1001. The defendants are bound to appear on the day fixed, and if they fail to do so the prosecutor proceeds with his case by default. Ibid. s. 5. i002- If the defendants appear, they must, within four days, plead specially to the information ; and the prosecutor is bound to answer within three days. Ibid. s. 2. lOOS* Within three days from the filing of the answer, the prosecutor must proceed to prove the allegations of the information, in the same manner as proof is made in ordin- ' ir CORPORATIONS ILLEGALLY FORMED, ETC., ARTS. 1003-1008. 561 ary cases ; and after the closing of his proof and withir. a further delay of two days, the defendants are bound to adduce their proof, ibid. s. 8. 1. Where the principal action is of a summary nature, the proceedings on an intervention are governed by the same rules. Stephen et iil. v. Tlie Montreal, Portland and Botton Ry. Co., 7 L, N. 62, S. C. 1884. 2. No inscription is necessary, even when the parties have allowed the delays to be overrun. Kerr v. Peltier, •* L. N. 100, Q. B. 1881. 1004. As soon as the proof of the defendants is closed, the prosecutor may be allowed to produce evidence in re- buttal, if there is occasion for it ; if he does not, either of the parties may inscribe the cause for hearing on the merits, giving the opposite party notice of at least one day before the day fixed. Ibid. s. 4. 1005. The court or judge may extend the delays when- ever it is P' -essary for the ends of justice. Ibid. § 2. 1006. Notwithstanding the provisions contained in article 1002, the defenr'ants may set up against the information such preliminary exceptions or exceptions to the form as they deem advisable, and the plaintiff may demur to the pleas set up in defence. Ibid. 1007* If the judgment declares the association to have been illegally formed, the persons composing it are person- ally bound to pay the costs ; and if it be renderd against a corporation, public body or board, the costs may be levied either upon the property of , ich corporation or upon the private property of the directors or other officers thereof. Ibid. 8. 10, § 5. ' 1008. Whenever any corporation, public body or board, has forfeited its rights, privileges and franchises, the judg- ment declares it to be dissolved and to be deprived of its rights, and a curator is named in due form to administer its property and liquidate its arfairs. Ibid. s. 10. 36 F. c. 0. p. ft w» I S ■ ■ I sfll 1 ^!: 'i.:-^~m m ,;u X' I \- ■^^k^ I m \'M '■*■■»! 'S >* .1 mw 562 CORPORATIONS ILLEGALLY PORMRD, ETC., ARTS. 1008-1013. 1. A judf»e in ohambera has no juriBcliction to appoint a curator to a dissolved corporation, until its dissolution has been judicially pronounced in due course of law. 'The Montreal Patent Guano Company in re <£• Manle et al., 18 L. C. J. 129. S. C. 1874. lOOO. The cura-jr, after having given the security re- quired bj the court or judge, becomes seized of the property of the dissolved corporation, an inventory of which he must cause to be made in due form of lav»r, in the presence of one or more of the persons who were members of such corpora- tion. He must afterwards dispose of the moveable property to the best advantage. Ibid. — C. C. 371-2-3. lOlO. [He is bound to give notice of his appointment by an advertisement to be inserted at least twice in two newspapers designated by the court or judge.l lOll* The curator must cause the proceeds realized to be distributed among the creditors of the corjjoration, by the Superior Court, in the district in which its principal place of business was situated, after giving notice of the day upon which he will make application for that purpose. Such notice must be published at least three times in two public newspapers, named by the court, and the first publi- cation must be made two months at least before the day fixed for such application. C. S. L. C. c. 88, s. 10, §§ 1, 2. 1012* If there are any debts remaining due by such corporation, its immoveable property can only be sold upon a suit brought against the curator in the ordinary form. Ibid. s. 3. 1013. [If there are no debts due by such corporation, or if such debts are not known, then the curator must pro- ceed to the sale of the immoveables to the highest bidder, after giving notice of such sale, in the same manner as the sheriff does in executions against the immoveables of a debtor.] Ibid. s. 4. 08-1013. , curator to a f pronounced in re tt> Maule ,eciirity re- lie property ich he must jence of one icli corpora- ble property ippointment iwice in two Is realized to rporation, by its principal notice of the that purpose. B times in two te tirst publi- lefore the clay s. 10, §§1,2. due by such be sold upon Irdinary form. Ill corporation, |itor must pro- ighest bidder, [manner as the Toveables of a USURPATION OP PUBLIC OFFICES, ARTS. 1014-1017. 563 1014. A sale thus effected by the curator after observ- iug the requisite formalities', has all the effects of a sheriff's sale. Ibid. s. 5. 1015* The curator is then bound to account, in the same manner as curators to vacant estates. • SECTION II. USURPATION OF PUBLIC OR CORPORATE OFFICES. 1016. Any person interested may bring a complaint whenever another person usurps, intrudes into, or unlaw- fully holds or exercises : 1. Any public office, or any franchise or privilege in Lower Canada ; 2. Any office in any corporation, or other public body or board ; Whether such office exists under the common law, or was created in virtue of any statute or ordinaace. C. S. L. C. c. 88, s. 1. 1017* Such complaint is brought before the Superior Court, or before a judge of the said court, but the writ of summons cannot issue without leave of the court or judge, obtained in the manner mentioned in article 998 ; and the same delays and formalities are observed in the proceed- ings as in the preceding section. Ibid. ss. 1, 2, 3, 4. 1. It is discretionary in the court to grant or to withhold a quo war- ranto information, even where a good objection to the title is shown. Roy et al. V. Thihault, 22 L. C. J. 280, S. C. 1878. 2. The petition required for the issuing of a writ of quo warranto, which sets foi'th geneially the grounds of complaint, is sufficient, without setting forth the details. Fraser v. Bateau, 10 L. C. R. 289, Q. B. 1860. 3. In proceedings affecting corporations or public officers, the defendant may set up against the information a declinatory exception, and at the same time pleas to the merits of the petition. The Attorney -General v. Gray, 15 L. C. J. 255, S. C. R. 1871. ^■:M M::;f .1 rhh\ m yilM m li'p ■■'■' £i6 r i '\Mt ■ v. Po$ton, 10 L. C. R. 257, S. C. 1800. 6. A writ under C. S. L. C. c. 88 must be addressed to a bailiff of the S. C, to be by him served and retirned, and not to the defendant. Henry V. Sxmard, 10 L. C. R. 273, 8. C. 1800. 7. A petitioner causing; a writ to issue in term cannot proceed in vac!*- tion, but must proceed in term. Hemlenton v. Loranger, 15 L. C. J. 113, S. C. 1871. lOlS* The complainant, in addition to the allegations concerning the usurpation and illegal detention of the office, may, in his petition, declare the name of the person who has a right to such office or franchise, and allege such facts as are necessary to shew Buch right, and the court may in such case adjudicate upon the claims of both parties. Ibid. s. 6. 1. A petition in quo warranto is not null by reason of the absence of stamps, and the judge to whom it is presented may allow the fixing of stamps or not in his discretion. liureau v. Normand db Gouin, 5 R. L. 40, 8. C. 1873. 2. The petition for a writ of quo 7carranto takes the place of the decla- ration referred to in article 50 of the Code of Procedure. Ibid. 3. The petition for a writ of quo warranto does not require to be num- bered where the writ itself bears the number given to it by the court. Ibid. 4. A petition for quo warranto addressed to "J. P., Judge of the Superior Court, having and exercising jurisdiction in the district of Three Rivers," is an indication of the tribunal and of the judge, equivalent to that referred to by the English authors. Bureau v. Normand d; Gouin et aL, 5 R. L. 40, 8. C. 1873. 5. The right to a municipal office must be contested according to the provisions of and in the manner prescribed by the Municipal Code, and not by quo warranto. Fiset v. Foamier, 3 Q. L. R. 334, 8. C. R. 1877. 6. The 8. C. has authority to issue a provisional order on a . rit of quo warranto to prevent an illegal proceeding by a member of an inferior tho writ will OF MANDAMUS, ARTS. 1018-1022. 565 tribunal, such an a Board of Revision acting under 37 Vict. o.Sl, (Que.), for tho revision of the voters' lists. LnmonUigne v. Stevenion, L. N. C8, H. C. 188;j. See I'nrit v. Couture, 10, Q. L. R, 1, 8. C. R. 1883. 1011I* If the complaint is well founded, the judgment orders the defendant to bo ousted and excluded from tho office, franchise or privilege, and condemns him to pay costs to the complainant ; the court or judge may also condemn the defendant to pay a line not exceeding the sum of four hundred dollars, which must be paid over to the Keceiver-General of the Province. Ibid. s. 7, §§ 1, 2. 1030* If the complaint is dismissed, the complainant must be condemned to pay all costs. Ibid. § 3. lOtSfl- Any person whom the judgment declares to be entitled to the office, or the franchise, may, after taking the oath of office, and giving such security as may be required by law, take upon himself the exorcise of such oilico or franchise, and may demand of the defendant all keys, books, papers and insignia, in the possession or custody of such defendant, and belonging to such office or franchise, and in the case of neglect or refusal to deliver up the same, the court may order the sheriff to take possession of such keys, books, papers and insignia, and to deliver over the same to the person adjudged to be entitled thereto, without prejudice to anj' criminal proceedings to which such defen- dant may be liable. Ibid. s. 8, §§ 1, 2. SECTION III. OF MANPAMUS. 1022. In the following cases : 1. Whenever any corporation neglects or refuses to make any election which by law it is bound to make, or to recog- nize such of itd members as hjive been legally chosen or h' H I I r, f m i .■:!)fll •v'l I, •'■•■' li;' '} ir tl M >J '^ V I 560 OF MANDAMUS, ART. 1022, ill elected, or to reiuHttite Huch of its members as may have been removed without lawful cause ; 2. Whenever any person holding any office in any corpo- ration, public body, or court of inferior jurisdiction, omits, neglects or refuses to perform any duty belonging to such office, or any act which by law he is bound to perform ; 3. Whenever any heir or representative of a public officer omits, refuses or neglects to do any act which, as such heir or representative, he is by bvw obliged to do ; 4. In all cases where a writ of maiuhtinus would lie in England ; Any person interested may apply to the Superior Court or to a judge in vacation and obtain a writ, commanding the defendant to perform the act or duty required, or to show cause to the contrary on a day fixed. C. S. L. C. c. 88, s. 11. 1. A manddmui^ will not lie from a jiulfjmont of a municipal council, in a matter of controverted elections. .S'(. Louis F.xp., 2 L. C. K. 500, 8. C. ISr.'i, 2. Nor to compel a mUrique to repair the fences of a ^jraveyard. Yin- cellette v. The Fabrique o/ St. A., G L. C. II. 4«i, S. C. 18r>G. 3. But it may be issued to compel a fahrique to restoi'o an officer of the Civil Government to a banc d'honiieiir. Hex Kxp. v. The Fabrique of Pointe UHX T., 2 Kev. de Lcf^. 53 & 441, K. U. 1821. 4. Or to compel a registrar to deliver a deed registered in his office. Doutre v. Gagnier, 13 L. C. J. 305, 8. C. R. ISIJ'J. 5. The Superior Court has no authority to issue a mandamuB to compel the License Commissioners under 37 Vict. cap. 3, (Q.) to grant a license. Frivelt v. Sexton et ah, 18 L. C. J. l'J2, 8. C. 1874 ; Smirt v. Voq). of Hochelaoa, 4 L. N. 255, 8. C. 1881. • 6. A writ of mandamus will not lie to compel a railway company to deposit an amount awarded for expropriation by arbitrators liourgoin V. The Montreal O. A O. Jiy. Co., 1 Legal News 210, 8. C. 1877 ; 21 L. C. J. 217. 7. Nor to compel the City of Montreal to appoint commissioners for the purpose of fixing the amount of indemnity to bo paid to the owners of property affected by the change of level of a street, although no grade for such street had been formally determined previously. Joseph v. The City of Montreal, 1 Legal News 210, 8. C. 1877, 21 L. C. J. 232. would lie Id red in his office. OF MANDAMUS, AIIT8. 1022-1028. 667 8. The court may j^riint an order to reMtriiin a pcrMon from committiiiu an ille;^al net, without having recourHo to a mamlamut, liourjoin et The writ of injunction is served in the same manner as any other writ of summons ; but, if found necessary, the court or judge may pre- scribe any other mode of service. 7. Proceedings commenced before the court in term may be continued befois a judge in vacation, or oven dux'ing term, and in like manner, proceedings commenced before a judge in vacation may be continued before the court in term, or before any judge in chambers even during termf. *1. The defendant by demanding security for costs under art. 22 C. C, does not waive his right to demand an increase of the security under this section. Dobie v. Temporalitiea Fund, 2 L. N. 277, 23 L. C. J. 71, 9 R. L. 632, S. C. 1879. See art. 128 ante, same case. 2. The security must be given conformably to artf.. 616, 519 & ?20 C. C. P. and art. 1962 C. C. Ibid., 2 L. N. 53, 23 L. C. J. ?29, Q. 13. 1878. 3. The application for sucli security may be made aftor the return day of the writ and within a reasonable time thereafter. Ibid., 23 L. C. J. 71. 4. An injunction was granted to suspend the execution of a judgment of the Recorder's Court. Alohon et al. v. The City of Montreal, 3 L. N. 382, S. C. 1880. 6. Where an injunction is issued in a case which does not fall within the provisions of this Act, the delay prescribed for ordinary suits must be allowed between service and return. Black v. Stoddart, 4 L. N. 282, Q. B. 1881. fl. Where an injunction has been granted and the parties have joined issue on the merits, it is too late to move to quash. liourgoin v. The Mon- treal N. C. Rij. Co., 19 L. C. J. 57, Q. B. 1875. OF INJUNCTIONS. 575 (2.) In order to avoid doubt it is hereby declared and enacted that in any proceeding commenced under this Act, any judge of the Superior Court shall, at every stage of such proceeding, have the same power to act therein as the judge before whom such proceeding was commenced. 8i An injunction may, in any of the cases mentioned in section one of this Act, be granted incidentally upon petition, without the formality of a writ, in a cause pending before the Superior Court, either by the court or by a judge in chambers, even during term, upon security being given as hereinbefore provided for ; tnd the procedure shall be thereafter con- ducted to judgment on the incidental proceeding in the same manner as on a writ of injunction. (2) And in any proceeding instituted under this Act, any additional injunction that may be deemed necessary by the court or a judge thereof may, upon petition, after due notice, be granted by an interlocutory order, for such length of time and upon such conditions, as to security or otherwise, as the court or judge may deem reasonable. And such additional injunction, as well as the injunctions contained in the original writ, may, from time to time, be suspended as the court or judge may deem necessary, and for such period and upon such conditions as to security or otherwise as the court or judge may deem reasonable, and may afterwards from time to time be renewed upon such conditions, as to security and otherwise, as by the court or judge may be deemed right. 9m Any judgment, rendered by a judge out of court under this Act, shall be siibject to review and appeal in the same manner and to the same extent that it would have been subject to appeal or review, if rendered by the court in term.* I0« Any final judgment under this Act taken into review or appeal and any interlocutory or provisional order under this Act from which an appeal shall be allowed by the Court of Queen's Bench, shall be executed and in force provisionally, notwithstanding and without prejudice to such appeal or review ; but the Superior Court, in review, or the Court of Appeals, as the case may be, may in their discretion provisionally suspend the injunction.f i¥\i Ui'i, i%» • 1. The right of appeal to the P. C. exists in cases of injunction as in other cases. Joly et ul. v. Macdonald, 2 L. N. 104, Q. B. 1879. 2. But only whei e the matters in dispute exceed £500 sterling. Dobie v. The Board of Ten oomlities, ii L. N. 308, Q. B. 1880. t 1. A party see'tt ng relief from an injunction, and whose motion to difcaolve it has been i ejected by the lower courts, may, in the discretion of the court, be permitted to appeal, though he appears to have disregarded the injunction, and to be in contempt of court. Joly et al. v. Macdonald, 1 Legal News 448, Q. B. 1878. 1 if! , , iJ « I t s 1 m 576 ">V INJUNCTIONS. II. The judgment, if in favour of the petitioner, pronounces the injunc- tions required, adjudicates as to costs, and musu be served upon tlio adverse party. 12a If a party against whom the injunction is directed, violate or refuse to obey the injunctions laid upon him, either by the writ or by any inter- locutory or final judgment, the court or a judge thereof may cause to bo destroyed, whatever may have been done in contravention to the injunction , if it be practicable ; also, the court or judge thereof may punish the party contravening, by an imprisonment not exceeding thirty days, but which may be repeatedly inflict(;d until the party obeys the mandate of the court or judge, t (2.) If the parfy violating the injunction be a company or corporation, such company or corporation may be condemned to pay a fine not exceed- ing two thousand dollars, but which may be repeatedly inflicted until they obey the mandate of the court or judge. (3.) The party aggrieved by the disobedience of such person, company or corporation, may also recover from the party or parties disobeying, such damages as he may show that he has sustained. 13. All fines imposed under and in virtue of x. -^ provisions of this Act shall be the property of the Crown, and shall form part of the consoli- dated revenue fund of the Province. 14. This Act shall come into force on the day of the sanction thereof ; but it shall not affect any pending cases. 2. M., contractor with the Quebec Government for building a railway, learning that the Government, under 32 Vict. cap. 15, ss. 179, 180 (Que.), was about to take possession of the road which was not completed, obtained a writ of injunction to restrain the Government from interfering,'. The latter proceeded to take possession, and a motion to dissolve the in- junction being rejected, obtained leave to appeal to the Q. B., and an order to suspend the injunction pending the appeal was granted, althougli the writ had been disregarded. Joly et al, v. Maedonald, 1 Legal News, 461, Q. B. 1878; 23 L. C. J. 16, 9 R. L. 616. t 1. The court will not consider txn application to revise an order for injunction which prima facie appears to be legal and valid, while the appli- cants remain in contempt. Maedonald v. Joly et al. 1 Legal News 446, S. C. 1878. ianction thereof; OP PROHIBITIONS, ART. 1031. 677 SECTION IV. OP PROHIBITIONS. 1031* Writs of prohibition are addresser! to courts of inferior jurisdiction whenever they exceed their jurisdiction. They are applied for, obtained and executed in the same manner as writs of mandamus, and with the same formali- ties. C. S. L. C. c. 89, ss. 1, 2. Wharton L. Lex. 832. 1. A demand for a writ of prohibition will be rejected if the petition does not include a want of jurisdiction in the court below, and such a writ can only be addressed to a court and not to a municipal corporation, Blain v. The Corporatioti of Granby, 5 R. L. 188, 8. C. R. 1878. 2. A writ of prohibition can only issue for excess of jurisdiction, and can only be addressed to an inferior court. Beaudry v. The Recorder's Court of the City of Montreal (& Sexton, 5 R. L. 223, 8. C. 1873. 3. A writ of prohibition cannot issue to commissioners appointed by the corporation for the expropriation of property, at least before their report has come before the court for adjudication thereon. Drummond v. Comte et al., 1 L. C. L. J. 100, 8. C. 18G6. 4. But a writ of prohibition may be grrnted by a judge to prevent commissioners in expropriation from proceeding with an unreasonable or excessive award. I'he Mayor et al. v. Benny et al,, 16 L. C. J. 1, 8. C. 1872. 5. A writ of prohibition against a corporation must be addressed to the corporation itself and not to the officers composing it, or each of them. Landry v. Migneault et al., 13 L. G. J. 325, S. C. R. 18G9 & 16 L. C. J. 65, Q. B. 1870. 6. The petitioner applied for a writ of prohibition, ordering a commis- sioner's court to suspend proceedings upon a judgment obtained against the petitioner, alleging a want of jurisdiction in the court— HeM, that he must be granted it aa of right in such case. Burk exp., 7 L. C. R, 403, S. C. 1857. 7. A writ of prohibition addressed to the City of Hull and to the Recorder, instead of to the Recorder's Court of the City of Hull, was declared null. Barrette v. The City of Hull et al., 11 R. L. 600, 8. C. R. 1882. 8. Where a writ of certiorari affords a sufficient remedy, prohibition does not lie. Audet dit Lapointe v. Doyon et al., 10 Q. L. R. 20, 8. C. R. 1883. 87 F.c.c.p. I ' '.. : ! IM mi m ' h\i m I 678 OF PROHIBITIONS, ART. 1081. 9. Writs of prohibition may iaiue to prevent the execution of a judg- ment of juatioes of the peace imposing a fine of 9fiO for selling liquor without a license. Duval v. Hubert, 17 L. C. J. 229, Q. B. 1870. 10. On an application for a writ of prohibition to restrain a municipal corporation from proceeding to execute the property of a corporator under the summary procedure allowed for the collection of taxes — Held, reverg. ing the judgment of the court below, that a writ of prohibition does not lie where no excess of jurisdiction appears on the face of the proceedings. The Mayor of Sorel v. Arnutrong, 20 L. 0. J. 171. Q. B. 1875 ; Bergevin v. Rouleau, 23 L. C. J. 179, 9 B. L. 668, Q. B. 1878. 11. Proceedings had against a member of the bar, before the council of the bar, are legal proceedings, and subject to a writ of prohibition. O'Farrell v. The Council of the Bar for the Di$triet of Quebec, 1 Q. L. R. 154, Q. B., i& 225, S. C. 1875. 1 Legal News 32. 12. It will not be granted against a municipal corporation for the pur- pose of suspending proceedings on a seizure issued by the mayor for taxes. Blain v. The Corporation of Oranby, 6 R. L. 180, S. C. R. 1873. 18. The judge whose decision is attacked may appear upon the sum- mons which has been served upon him. O'Farrell v. Doucet, 4 Q. L. R. 207, Q. B. 1878. 14. The court will allow the judge to plead independently of the other defendants to the petition for a writ of prohibition. lieg. ex rel. O'Far- rell v. Brassard et al., 4 Q. L. R. 62, S. C. 1875. 15. A party who has accepted the jurisdiction of a magistrate by appear- ing before him and pleading to the merits, cannot obtain a writ nf prohi- bition founded on a want of jurisdiction. Sitiuird v. The Corporation Co. Montmorency et al, 8 R. L. 546, Q. B. 1878. 16. 'xhe writ will issue to a municipal corporation ordering an amend- ment of an assessment roll. Morgan v. CotJ, 3 L. N. 274, Q. B. 1880, 7 Sup, Ct. Rep. 1 ; The il^ayor, rf;c., of Iberville v. Jones, 3 L. N. 277, Q. B. 1880. 17. The return day mentioned in a writ of prohibition will be deemed as in ordinary writs of summons, to have been fixed by the court, and need not have been fixed by special order of the judge. Boy v. Fraser, et al., ti Q. L. R. 244, S. C. 1877. 18. Where the defect of jurisdiction is patent, and the party instead of specially objecting on that ground in the inferior court, chooses to proceed to trial on the merits, the writ will be refused after judgment. richJv. Corp. of Quebec, 8 Q, L. R. 270, S. C. 1882. See Laporte v. Hogan, 6 L. N. 317, S. C. 1883, under art. 1220 post. art. 1220 post. GENERAL PROVISIONS, ARTS. 1081-1083. 679 19. Prohibition will not lie against a deoiaion of the Beoorder'a Court of the Oity of Quebec under 39-80 Viot. cap. 67, sec. 28. Filion v. The Be- corder't Court of the City of Quebec, 19 B. L. 148, Q. B. 1882. 20. The Superior Oonrt and ita judges have ezolnsive controlling and reforming power over all inferior courts and all corporations. No proceedings can be inaugurated for controlling or reforming the acts of an inferior court or corporation without the authorization of the Superior Court or of one of its judges. The Court of Queen's Bench has no power to authorize the issue of a writ of summons out of the Superior Court in any demand for prohibit tion. The power vested by law in a judge of the Superior Court in chambers to authorize the issuing of such writ is a power inherent in the judge as such, and the Court of Queen's Bench is no where vested with the power to allow such a writ, or with any power of review over a judge in cham- bers. Reg. ex rel. O'Farrelt v. Braisard et al„ 8 Q. L. B. 83, S. C. B. 1876. See 85 Vict. cap. 6, sec. 21 (Que.) under art. 998 and appendix. SECTION V. GENERAL PROVISIONS. 1083* In any case wherein the rights of a municipal corporation are involved, no elector entitled to vote is in- competent, as such, to give evidence. C. S. L. C. c. 88, s. 16, Ihid. 1033« An appeal from any final judgment rendered under the provisions contained in this chapter lies to the Court of Queen's Bench, except in matters relating to muni- cipal corporations and offices ; provided the writ of appeal be issued within forty days from the rendering of the judg- ment appealed from. Ibid. s. 17. See 48 Vict. cap. 21, 1 (Que.), under art. 494 ante. 1. An appeal was allowed from the Circuit Court where it was sought to set aside a municipal roll. Ilolfe v. Corporation of Stoke, 2 L. N. 103, 24 L.C. J. 213, Q. B. 1879: and where the validity of a by-law was questioned. Cwey v. Corp. of Brome. Ibid. 2, An appeal lies from a judgment of the Circuit Court where proceed- r:i'm\ Hlht fiKkHKlvwE 580 ANNULLING OF LETTERS PATENT, ARTS. 1088-1085. inxa were had under art. 070 of the Miiniciiml Code. Montreal Cotton Co, V. Corp. of Salaberry, R. L. 561 ; Q, D. 1H79. U. There is nu api^eal from jiidKinents of the (Circuit Court in muni- cipal mutterB, under article 1077 of the municipal code. The Corporation of the County of Dntmmond v. The Corporation of St. Ouillaume, 4R. L. 70(1, S. C. 1873 ; Danjou v. Marquit, » Q. lu R. 885, Q. B. 1877. Bee remarks of RamHay, J., 2 L. N. 108. CHAPTEB ELEVENTH. OF THE ANNULLING OF LETTERS PATENT. 1034. Any letters patent granted by the Crown may be declared null and be repealed by the Superior Court : 1. Where such letters were obtained by means of some fraudulent suggestion, or wher^ some material fact has been concealed by the patentee, or with his knowledge or consent ; 2. When they have been granted by mistake or in igno- rance of some material fact ; 8. When the patentee, or those claiming under him, have done or omitted to do some act, in violation of the terms and conditions upon which such letters patent were granted, or for any other reason have forfeited their rights and interests in such letters patent. C. S. L. C. c. 89, s. 5. 1085« All demands for annulling letters patent may be made by suits in the ordinary form, or by scire facias, upon information brought by Her Majesty's attorney-general, or solicitor-general, or any other officer duly authorized for that purpose. Ibid. 1. A writ of Hcire facias is not necessary to obtain the revocation of letters patent, but — Held, that in the present case the Crown, represented by the officers of the ordnance, could waive the prerogative of such writ and claim, by the usual and ordinary process, the cancellation of letters ike or in igno- ANNULLINO OF LKTTER8 PATENT, AIITH. 1085-1088. 581 patent m»t.iii|{ a ^rant or conceitHion of wild ImulH, on which tho reHpon- (lent8 hiul biiHud their action. The Principal 0[f\cer» of Artillery v. Taylor tta/., 1 L. C. 11. IHl.Q. IJ. 1851. 2. Writ)) of iirire J'acian to cancel luttorH patent can only iuauo at the Huit of the Crown. I'aradU exp., 7 L. C. J. 180, 8. C. U. 18')4. 3. And cannot bo bron^ht by a private individual. Pacaud v. Ilickahy, 1 Q. L. U. Ur,, Q. B. 1H75. 4. The Crown alono haH the ri>,'ht of dcniandin)^ that letters patent ){rantod under tho ^reat Nual of tlio Province be annulled. The Union Saviiiation Company v. liancotiy, 20 L, C. J. iJOO, 8. C. 187(1. '). Proceedin^tt in tho nature of ncire /acid* to sot aside letters patent of invention, issued under tho Dominion Statute, '.i't Vict. cap. 2(5, cannot bo instituted in the name of a provincial attornoN general, and can be brought by the attorney-general of Canada only. Momneuu v. Hate ex qual, L. N. 271, 27 L. C. J. loH, 8. C. R. 1883. See Aii(ient\. Murray, 3 L. N. 108, Q. \. 1880 ; Uo»,. v. Morii .1 Q. B. R. 88, g. B. 1880. lOiiO. The information is servtid upon the percon who hoklH or relies upon such letters patent, and is hetird, tried and determined in the same manner as ordinary suits. Ibid., s. 2. 10S<7* An appeal lies from the final judgment rendered upon such information, provided the writ of appeal issues within forty days from the rendering of the judgment. Ibid., 8. G. No appeal lies from a judgment di8miHsin<:» an action by the Attorney- General to annul letters patent after tho expirntion of forty days from the rendering of tho judgment. AiujerH v. Murroir 2^ L. C. J. 208, 3 L. N. 108, Q. B. 1880. lOSiH. In the case of letters poUnt The petition of right shall be addressed to Her Majesty, in the words or to the effect of Form No. 1, in the pchedule of this Act, and shall state the names, the occupation or quality, and the domicile of the suppliant and of the attorney, if any, by whom the same is presented, and shall set forth with convenient certainty the facts entitling the suppliant to relief, observing the provisions of article 52 of the Code of Civil Procedure; and it shall be signed by such suppliant or his attorney. 4> The petition must be supported by an affidavit of the suppliant or of a competent person attesting the truth of the facts therein alleged. 6. The petition shall be left with the Provincial Secretary for submis- sion to the Lieutenant-Governor, in order that he may consider it, and if be think fit, grant his fiat that right be done. No Tee is payable on leaving or upon receivinr; back the petition. 9. Upon the Lieutenant-Governor's fiat being obtained, the petition and fiat is filed in the office of the prothonotary for the district of Quebec, of the Superior Court for the Province of Quebec, which court, sitting in the district of Quebec, has exclusive original jurisdiction in matters of petition of right. 7« The suppliant must, at the time he files his petition in theprotho- notary's office, produce and file the written proofs which he has alleged in support of his claim, together with an inventory of such exhibits, and he must also deposit a sum of two hundred dollars. ANNULLING OF LETTERS PATENT, 46 V., C. 27. 583 The amount thus deposited is intended to pay the costs of the govern- ment if the court should grant any ; if not, it is returned to the suppliant. 8« A copy of the petition and Lieutenant-Governor's fiat, certified by the prothonotary, with an endorsation thereon, that the deposit has been made, shall be left at the office of the attorney -general of the Province with a notice in the words or to the effect of Form No. 2, of the schedule of this Act, re When the government is adjudged to pay costs or a sum of money with 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 appeal, a certified copy of the final judgment, entitling the suppliant to such costs, or to such sum of money with or without costs, may be left at the office of the provincial treasui-er ; and the provincial treasurer shall pay out of any moneys, in his hands for the time being legally applicable 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. 17. Nothing in this Act contained shall : — 1. Prejudice or limit, otherwise than is herein provided, the rights, privileges or prerogatives of Her Majesty or her successors ; or 2. Prevent any suppliant from proceeding as before the passing of this Act. I8t This Act shall come into force on the day of its sanction. SCHEDULE. FoRU No. 1. PETITION. In the Stiperior Court of Quebec, District of Quebec. To the Queen's Most Excellent Majesty : The humble petition of A. B., of [residence and calling) by his attorney, C. D., of (residence) sheweth : — That {state the facts). Conclusion : Your suppliant therefore humbly prays that (state the relief claimed). Dated at this day of A. D. NOTICE TO ATTORNEY-GENEUAL. To the Honourable the Attorney-General of the Province of Quebec. The suppliant prays for a statement or contestation on behalf of Her Majesty, within thirty days after the date of service of the above petition of right, or otherwise the suppliant will proceed as in a case in which the defendant fails to appear. Dated at this day of A. D. OF HABEAS CORPUS, ART. 1040. 585 CHAPTER TWELFTH. OF HABEAS CORPUS AD SUBJICIENDUM IN CIVIL MATTERS. by his attorney, 1040* Any person who is confined or restrained of his liberty, otherwise than for some criminal or supposed criminal matter, or any other person on his behalf, may apply to any one of the judges of the Court of Queen's Bench, or of the Superior Court for a writ addressed to the person under whose custody he is so confined or restrained, ordering the latter person to bring him before the judge who granted the writ, or before any other judge of the same court, together with the cause of his detention, in order to examine whether such detention is justifiable. C. S. L. C. c. 65, ss. 20-25. 1. The object of habeas corpus is to see that no one is illegally deprived of his liberty, a^^d not to determine the respective rights of parties over one another, and cannot therefore be used by a father to enforce his right to the custody of his child. Stoppelben v. Hull, 2 Q. L. R. 265, S. C. 1876. 2. Judgment ordering the imprisonment of a defendant until payment of debt, interest and costs, and also the costs of the rule, will not justify a commitment which includes also sheriff's costs. Ml: iin exp., 22 L. C. J. 88, Q. B. C. 1877. 3. Writs of habeas corpus may issue in matters of commitment by either house of parliament. Lavoie exp., 5 L. C. R. 99, S. C. 1855. See Monk exp., S. R. 120, K. B. 1817. 4. A person who has been discharged upon a habeas corpus cannot be arrested a second time when no new or other cause of arrest is disclosed, though it appear that the warrant was quashed in Chambers by a judge on grounds which were subsequently held by the court to be insufficient. Duvernay exp., and CotJ exp., 19 L. C. J. 248, Q. B. 1875; Prince exp., 15 L. C. J.331, Q. B. 1871. 5. A discharge may be granted upon a petition for a writ of habeas corpus in a case in which the defendant is detained in gaol under civil process. Fourquin et al. exp., l(i L. C. J. 103, Q. B. 1871. 6. The writ will be granted when a person is confined for rebellion rM '■I'll I'm '■■■■■'A" „m ■I ■ tW 1 m I It ill ■• i 1 ;.}< Til W 586 OF HABEAS CORPUS, ART. 1040. 7. A writ of habeas eorpua will not be granted to liberate a prisoner charged with process in a civil suit, even though the writ of execution in virtue of which he was arrested appear to be irregular, if it is within the scope of the jurisdiction of the court, from which it issued. Healy exp., 22 L. C. J. 138, 1 Legal News 103, Q. B. C. 1878 ; Thompsm exp., 22 L. C. J. 89, 1 L. N. 102, Q, B. C. 1877 ; Cmlter exp., 22 L. C. J. 85, Q. I' 1877 ; Donahue exp., 9 L. C. R. 285, S. C. 8. Where a perso ; is detained under legal process in a civil suit under C. C. P. 782, he cf ancf obtain the benefit of a habeas corpus if it involves a review of the .^i ign> .it. Saunderson exp., 8 R. L. 108, Q. B. C. 1876. 9. The petitioner may, however, show there is no judgment ordering his imprisonment, and if he does so, he will be liberated. Cutler exp., 22 L. 0. J. 8C, Q. B. 1877. 10. If the warrant of commitment show that there was a conviction, the court will not grant the writ because of a mere omission or defect in the recital in the commitment of the terms of the conviction, unless the conviction is brought before the court by writ of certiorari, or it is shown why this cannot be done. The magistrate may, by the warrant of com- mitment, order defendant to pay the costs of the warrant and of convoy- ing him to jail and fix the amount of such costs. The court cannot interfere on a writ of habeas corpus vvith the taxation of costs. Jones Exp., 1 Q. B. R. 100, Q. B. 1880. 11. The fact that the commitment of a guardian under 597 C. C. P. orders his imprisonment until payment of an amount apparently in excess of what is due, cannot be urged by application for a writ of habeas corpus — the latter not applying to persons held under process in civil matters unless there be manifest absence or excess of jurisdiction. Exp. McCaffrexj, 25 L. C. J. 188, Q. B. 1880, 3 L. N. 106. 12. The Court of Q. B. cannot correct an error in the warrant of com- mitment on a demand for a writ of habeas corpus, neither has it, on sucli demand, a right to inquire into proceedings of the Superior Court, (Dorion, C.J.) But it may enquire if there is a judgment of a competent court ordering the incarceration, and if the warrant is in conformity with such judgment. Exp. Pollock, 2 Q. B. R. 60, Q. B. 1881, 5. L. N.; Exp. Martin, 22 L. C. J. 88. 13. The Court of Queen's Bench, (appeal side), will not interfere, upon a writ of habeas corpus, with an order made by the court on the Crown side to remand a prisoner to gaol. Exp. liulmer, 5 L. N. 22, Q. B. 1881. 14. A writ of habeas corpus will lie to liberate a defendant arrested under a writ of capias ad respondendum where want of jurisdiction in the OF HABEAS CORPUS, ARTS. 1040-1043. 687 court isBuing the writ of capias, or of authority on the part of the baili£f to make the arrest, appears upon the face of the proceedings. Exp. McNeice <&Fos>i, 9 Q. L, E. 64, S. C. 1882. . See art. 1052 post, and appendix. 1041. The application must be supported by an affidavit, shewing that there are probable and reasonable grounds for the application. Ibid. 1. The petitioner was imprisoned for having failed, as guardian, to produce goods seized, and he asked for habeas corpus in order to be Uberated, as he was a minor. The judge refused the application as there was no notice to the party interested in maintaining the contrainti, ; and as the affidavit which contained a general reference only to the allegations of the ];)etition, was insufficient, inasmuch as it did not disclose any reasonable or probable ground for the issue of the writ. The petitioner was allowed to withdraw his application, and it was intimated that if it were renewed, which might perhaps not be necessary in the interests of the petitioner in view of art. 972, C. C. P., the appli- cant should be prepared to meet the difficulty arising from C. S. L. C. c. 95, B. 25. Gauverau Exp., 1 Legal News 53, Q. B. C. 1878. 1042. The writ issues in the name of the sovereign, is sealed with the seal of the court to which the judge belongs, and is attested in the same manner as any other writ. It is returnable without delay, unless a term of the court is 80 near that the writ cannot be executed before such term, in which case the judge may order the writ to be returned during term ; and if the end of the term be so near that the writ cannot properly be executed during the term, it may be made returnable during the following vacation. Ibid, and s. 21, § 2. 1043* The writ is served personally, or at the place where the person is confined or restrained, speaking to a domestic servant or an agent of the person to whom it is addressed, and leaving the writ itself ; and the return of service is made upon a certified copy. Ibid. s. 21. ;'"H-| ■ffiiii 1^ ■^^■<'^:i:;,lii :J: im m "'ifii :'Mf 588 OF HABEAS CORPUS, ARTS. 1044-1048. 1044. In default of compliance with the writ of habeas corpus, the person upon whom it was served is held to be guilty of a contempt of the court under whose seal the writ issued, and the judge may grant a rule under the seal of the court, returnable before such judge or before the court, for his imprisonment. Ibid. 1045. Upon the return of the writ of hahvas corpus, ov of the rule mentioned in article 1014, the judge proctods, as soon as he conveniently can, to fxamin'., by means of depositions under oath or aiiiiuiation, into the truth of the facts alleged, and decides accordingly. Ibid. s. 22. 1. Where a ocsmmitment is illegal oii its faco, the court will not wait until the committing magistrate has been notified tu productj t'> ipayeis, but -vviil order tlie writ to issue instanter. Mensier Exp., 1 L. C. 7-.. J. 71, Q. B. laiii'i. 104«l. if the judge before whom the writ is returned in vacatio;i is in doubt as to the truth of the f icts alleged in the return, he may admit to bail the person so confined or restrained, upon his entering into recogaizance with one or more sureties, or, in the case of infancy or coverture, upon security being given by recognizances, in a reasonable sum for his appearance before the court on a fixed day during the next term, and from day to day, to abide such order as the court may make. Ibid. s. 22, § 2. 1047* The writ of habeas corpus is thereupon trans- mitted 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. Ibid. § 3. 104H. The court may direct one or more written issues for the trial of the facts alleged in the return, and such issues are tried [either by affidavit or by the examination of witnesses before the court or judges, as such court or judge may think proper.] Ibid. OF HABEAS CORPUS, ARTS. 1049-1052. 589 1040* The same proceedings are had in term in the Court of Queen's Bench and in the Superior Court, respec- tively, for controverting the truth of the return. Ibid. a. 28. 1050. The court or the judge may pronounce upon all costs incurred iu the issuing, contestation or execution of the writ of habeas corpus. Ibid. s. 24. 1051. "Whenever a writ of habeas corpus has been once refused by any judge, the application for it cannot be renewed before him or before any other judge unless new facts are alleged ; but the application may be renewed before the Court of Queen's Bench at its next sitting in appeal at the place where appeals are brought from the district in which the application was made. Ibid. s. 28. 1. Where an application has been refused by a judge in Chambers, judicial comity will prevent another judge from entertaining it. Donahue Exp., 9 L. C. R. 285, S. C. 1052. The provisions of this chapter cannot be extended to the discharge of any person imprisoned for debt or under any action or process in civil matters. Ibid. s. 25. 1. A writ will issue to liberate a persoi; charged with process in a civil suit issued out of a court of inferior jurisdiction, when it appears on the face of the proceedings that they were ultra viret. Lebceuf v. Viau db ViaUy 18 L, C. J. 214, 8. C. 1874. See cases under art. 1040, supra. !' , , up M ,(; I, ii t ,. ;, m n mm 590 OF THE OIROXJIT COURT, ART. 1058. BOOK THIRD. OF THE CIRCUIT COURT. TITLE FIRST. POWERS AND JURISDICTION OF THE COURT. 1053. The Circuit Court has ultimate jurisdiction to the exclusion of the Superior Court : 1. In all suits wherein the amount or the value of the thing demanded is less than one hundred dollars, saving the exceptions contained in the following article, and such cases as fall exclusively within the jurisdiction of the court of Vice-Admiralty ; 2. In all suits for school-taxes or scLool-fees, and all suits concerning assessments for the building or repairing of cL'^'^hes, parsonages and church-yards, whatever may be the it of such suits. 1. Held, on an exception diclinatoire, that the Superior Court has no jurisdiction to hear suits for the recovery of school taxes. The Sclwol Commissioners of Hochelaga v. Hogan et al., 20 L. C. J, 298, S. C. 1876. Corp. of Acton v. Felton, 24 L. C. J. 113, S. C. R. 1879. 1. The Circuit Court has jurisdiction to declare that an ordinance of the Commissioners for the civil erection of parishes, by which the fabrique was allowed to assess the freeholders of the parish for $20,000, is insufficient in law to serve as the basis vl an action. La Fabrique de V Enfant Jesus v. Poirier et al., 23 L. C. J. 155, S. C. 1879. 2. The Circuit Court has jurisdiction in actions under art. 961 Muni- cipal Code for taxes, whatever may be the amount claimed. The Corp. of the Village of Bienville v. Gillespie, 6 Q. L. R. 346. C. C. 1880. POWERS ANF JURISDICTION, ARTS. 1058, 1054. 591 8. The Superior Court cannot take cognizance of a suit in the nature of an hypothecary action for 960, due for school taxes. SembU, that the Circuit Court has exclusive jurisdiction in cases for the recovery of school taxes. The School Commi$iioner$ of Sillery t. Oingrat tt al„ 6 Q. L. B. 866, S. C. B. 1880. 4. The Circuit Court has no jurisdiction to pronounce on the merits of the contestation of a garnishee's declaration which asks the revocation of a transfer of a debt of 91,150 for fraud. Lapointe v. Blanger ; iff !;■■ lit ■■aUH r !.' '4 ml m V] 592 OF THE CniCUIT COURT, ART. 1064. third line of aeotion of tho Act 84 Victoria, chapter 4, the following words: "and in the cities of Three Rivera and Blierbrooke." In conaoquence of tho preceding amendment, all appealable caaua commenced in the Circuit Court sitting, either at the City of Three Rivera or thi City of 81ierbrooke, in which judgment has not yet been rendered, shall, from the date of the paaaing of this Act, cease to be within tho juriadiction of auch Circuit Court. The proceedings to be taken and judgmenta to intervene in such caaca, ahall be taken and rendered before tho Superior Court ; and the books, archivea and records of the Circuit Court, respecting any such case, shall, immediately after the coming into force of this Act, belong to the Superior Court, and shall be thereto transmitted within a short delay. 48 Vict. c. 23, (Que.) : 1. Article 10S4 of the Code of Civil Procedure, as amended by the Act 34 Victoria, chapter 4, aection (», the Act 35 Victoria, chapter 6, section 81, and the Act 47 Victoria, chapter 8, section 9, is further amended by adding after the word " Sherbrooke " in the last line of said section 9 of the Act 47 Victoria, chapter 8, the words " and in the City of St. Hyacinthe, the Town of St. Germain de Rimouski, the Village of Arthabaskaville and the Town of St. Johns." 2. In consequence of the preceding amendment all appealable caHes commenced in the Circuit Court sitting in the City of St. Hyacinthe, the Town of St. Germain de Rimouski, the Village of Arthabaakaville and the Town of St. Johna, in which judgment haa not been rendered, ahall, fromt the date of the passing of this Act, cease to be within the jurisdiction of such Circuit Court. 8. The procee It may also, upon proclamation of the governor, be held in any other county than that in which the Supe- rior Court for the district is held, excepting the counties of Hochelaga, Jacques Cartier, Laval, St. Maurice, Quebec and Wolfe ; oi in more than one place in certain counties, as provided in chapter seventy-nine of the Consolidated Statutes for Lower Canada. The court is then designated as " the Circuit Court in and for the county of " {naming the county) and if there are more than one in the same county, the words at {naming the place of sitting) are added to such designation. C. S. L. C. c. 79, ss. 6, 7, S. 32 Vict. c. 21 (Que.) : 1. Sub-section two of section six, and the section seven of chapter seventy-nine of the Consolidated Statutes for Lower Canada, and article 1062 of the Code of Civil Procedure of Lower Canada, are amended by striking out therefrom the word "Wolfe." 85 Viet. c. 6 (Que.) : 23. The Lieutenant-Governor may, at any time, by proclamation, abolish the holding in any county, or at any place in a county, of a Circuit Court, theretofore authorized by proclamation in accordance with article 10G2 ; and thereupon, the books, papers and records of the Court so abolished, shall be transmitted to such other Circuit Court as the Lieutenant-flovernor shall name in the said proclamation. 1063* 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. Ihid. s. 11. i. 'r ■■* 1 : m .!il 598 OP THE CIRCUIT COURT, ARTS. 1064-1066. 1064. When it is necessary for the dispatch of bu&iness, the Circuit Court at any place must be held by two or more judges of the Superior Court, residing in the same district, simultaneously but in separate apartments. Ibid. s. 15. 85 Vict. c. 6 (Que.) : 27. There shall no longer be terms for the holding of the Circuit Court at the City of Montreal, but every juridical day shall be a day on which the Circuit Court may be held at the said city whenever business shall require it. Nevertheless, the judge holding the said court may adjourn the sitting thereof to some future day, and in the interval of such adjournment, the said court shall not be held. TITLE SECOND. ORDINARY PROCEDURE. li^i CHAPTER FIRST. OF SUMMONS. 1065. The provisions concerning summonses for the Superior Court apply equally to the Circuit Court, saving the provisions hereinafter contained. C. S. L. C. c. 83, sr. 42, 169, 170. L. C. c. 83, BR. of summons, art. 1065. Form No. 35. In connection with article 1065. 599 Lower Canada, District (or Circuit) of A. B., of C. D., of IN THE CIRCUIT COURT. &C. and &c. Plaintitf; Defendant. [L.S.] Victoria, by the Grace of God, of the United King- dom of Great Britain and Ireland, Queen, Defender of the Faith : To C. D., the defendant above mentioned. Whereas A. B., the plaintiff aforesaid, demands of you the sum of due by you to him for {state suficiently the cause of action), which said sum you have (as he saith) refused to pay him. {If the action be to recover a thing wrongfully detained, dc, vary the statement of the cause of action accordingly. If there be a declaration annexed, refer to it ; and omitting the words after "the plaintiff aforesaid," say, " hath, by his declaration here- unto annexed, made complaint against yow in the manner therein set forth.") And the plaintili prays judgment accordingly. You are therefore required to satisfy the demand of the said plaintiff in this cause, with cos- -, or to appear in person or by your attorney before our said court, at the court bouse, at in the said circuit, at o'clock in the forenoon {otnit these words if the case be appealable), on the day of instant {or next), to answer the said demand ; otherwise jur'igment may be given against you by default. ■■!i;r' rmM ■ ' : -nil I %< M •if 600 I 11 OF THE CIRCUIT COURT, ART8. 1065-1068. In witness whereof, we have caused the seal of our said court to be hereunto affixed, at this day of in the year of our Lord one thousand eight hundred and E. F., Clerk of the said court for the said district (or circuit). Sec appendix. 1066* The delay upon summons is five intermediate days, when the distance from the defendant's domicile to the place where the court is held does not exceed five leagues, with the ordinary extension when the distance is greater. Ihid. s. 170, § 2. 106T> When the writ of summons is to be served in another district, it may be addressed to the sheriff or to a bailiff of such other district. It may also be so addressed when it is to be served in more than one district. In the latter case, as many originals of the writ of sum- mons must be issued as there are districts in which it requires to be served. Ibid. s. 170, § 4, s. 171. 106S* In the case mentioned in article 1067, the writ of summons issuing from the Circuit Court of a district may be served by any bailiff of such district ; but he is entitled to no more costs than if the service had been effected by the nearest bailiff to the residence of the defendant thus summoned. Ibid. s. 172. 42-43 Vict., c. 21, (Que.): Any writ of summons, subpoena or writ of execution issued out of any Circuit Court in any county in this Province, may be served by any bailiff residing in the juridical district in which said county is situate; but no more costs and emoluments for scrvin^^ or executing such writ shall be allowed or taxed against any defendant, than would have been allowed OF CONTESTATION, ARTS. 1068-1070. 601 had such writ or subpoena been served by the bailiff residing nearest to the residence of the defendant: provided nevertheless in any case in which the plaintiff establishes t^ the aatisf action of the clerk of the court, or the judge exercising jurisdiction in the district in which such writ issues, that such writ or subpoena should be addressed to and executed by some other bailiff, it may be so addressed and executed ; in which case the costs to be taxed against the defendant or other person shall be taxed as from the residence of such bailiff, and for the distance actually travelled by him. ;i CHAPTEB SECOND. PROVISIONS CONCERNING APPEALABLE CAdES. SECTION I. be served in PROCEEDINGS BEFORE CONTESTATION, OR IN UNCONTESTED SUITS. 1060. The provisions respecting appearance and de- fault, election of domicile, judgments by default or upon confession, filing of exhibits and proofs exparte, in the Superior Court, apply also to appealable cases in the Circuit Court. C. S. L. C. c. 79. s. 27, c. 83, s. 42. SECTION II. OF CONTESTATION. 1070« The contestation and pleadings in appealable cftses in the Circuit Court are subject to the provisions concerning the same matters in the Superior Court, except as regards the delays, which are regulated as follows : The delay for filing preliminary exceptions is four days, and that for answering the same is five days. The delay for filing any other pleading necessary to com- plete the issues is five days. 602 OF THE OIROUIT COURT, ARTS. 1070-1074. The delay for pleading to lihe merits is five days from the appearance of the defendant. If no plea be filed within these delays or afterwards within the three days after the service of a demand of plea, the party in default is foreclosed by an act of the .".lerk of the court without any other pro- ceeding. There is a like delay of five days, on pain of foreclosure, between each subsequent pleading allowed by law, without any demand of plea being necessary. G. S. L. C. c. 83, B. 180. SECTION III. OF PROOF AND HEARING. lOTl* Proofs may be made on every day during a term of the Circuit Court. Ibid. s. 181. 1073. Contested cases are inscribed at the same time for proof and for hearing on the merits. Ibid. s. 182 ; 25 V. c. 10, 8. 11. 1073* Notice of such inscription must be given to the opposite party, with one intermediate day's ielay, if notice is given in term, and four intermediate da]^b if it is given in vacation. C. L. S. C. c. 88, s. 184. 1074. The eviderce is given orally,without notes thereof being taken, unless, before the commencement of the proof, the parties, or one of them, files a declaration in writing;, requesting that notes of the evidence be taken down in writing, in which case it is taken in the manner provided for proofs heforf the judge in the Superior Court. After the witnesses have been examined, the parties ato heard upon the merits, unless the court deems it advisable to adjourn the case on account of the absence of some material witness or evidence. Ibid. s. 182 ; 25 V. c. 10, s. 11. See Dorion v. Marsil, 3 L. N. 183, S. C. R. 1880. OP JUDGMENTS, ARTS. 1076-1080. 603 1075. [With the consent of all the parties the proof may take place on any juridical day in or out of term, and may be written down at length, and the clerk of the Circuit Court may receive the depositions and swear the witnesses in the absence of the judge ; or it may be taken before an examiner ; in each case according to the rules and in the manner prescribed for the Superior Court.] See S3 Vict. c. 18, s. 1 (Que.), under art. 239 ante. 1076* No person residing at a distance of more than fifteen leagues fro;n 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 246 and 247. C. S. L. C. c. 83, 8. 186, C. S. C. c. 79, s. 12. lOTT. Whenever a demurrer has been filed, the case may nevertheless, be inscribed for proof and hearing, reserving the argument upon the law issues until after the proof. C. S. L. C. c. 83, 8. 183. 1078. The court may at any time order iue proof to be had, or a witness or a party to be examined in another circuit, and may order that the record, or a part thereof, be transmitted for that purpose, according to the provisions contained in article 241. Ibid. s. 185. i,fi.; :?) :>■'*} I: Ml m B'i ■■ !■• :»/.J SECTION IV. OP JUDGMENTS. 1079* The provisions which relate to judgments and to costs in the Superior Court apply also to judgments ren- dered in the Circuit Court. Ibid. s. 42. lOftO. Whenever the judge who heard the case is unable, by reason of sickness or other cause, to render judgment in pe-son, he may transmit the draft of the judgment, certified 1^ ■y (Kit' t] If^ •'fi' "i m 604 OP THE CIRCUIT COURT, ARTS. 1080-1081. by himself, to the clerk, who is thereupon bound to record the same and to read it in open court on the next juridical day in term ; and the judgment has then the same force and effect as if it had been pronounced by the judge on the day on which it was thus read. C. S. L. C. c. 79, s. 16. See 88 Vict. c. 10 (Que.), ante, under art. 469. SECTION V. OF THE EXECUTION OF jtJDGMENTS. lO^l* [Writs of execution for the payment of a sum of money issue against the moveable property of the debtor situated either in the district in which the judgment wa? rendered or in any other district. In the first case it is ad- dressed to a bailiff who i be the amount thereof, a writ of execution may issue immediately a* inst such immo table, addressed to the sheriff of the district in which it is situated. Tbid. s. 206, § 2. 82 Vict. c. 80 (Que) : 4. It shall > -e lawf al for the proprietor of *he capital of any anch {Seig. niartal) rente to institute a purely personal action against the holder of the immoveable hypothecated {grev^ for the recovery of the rente or the arreatB thereof. These actions may be instituted either in the Circuit Court or the Ma(;;istrate's Court, and anything in the articles 1054, 1055 and 1058. of the Code of Civil Procedure to the contrary notwithstanding, these actions in res{)tiot of the jurisdiction of the court, the procedure and the costs shall be considered as purely personal actions and as having no relation to lands or real estate, annual fntes or other matters involving future rights: whatever may I the amount of the judgment rendered in all such actions, the judgment in default of sufficient moveables, may be executed, after the delay of one year, by the seizure and sale of the im- moveable hypothecated (grevi), lOMS. All proceedings incidental to the seizure or sale of the immoveables seized in virtue of the foregoing provis- ions are carried on before the Superior Court into which the writ of execution is returnable, in the same manner as if thj judgment had been rendered by such court. Ibid. s. 20;j, §2; 8.206. 1. The application of the purchaser for a writ of possession should be made to the Superior and not to the Circuit Court. Evam v. Hurtubise db De Bercy, 6 L. N. 336, C. C. 1883. 10M9. In other respects the formalities of the seizure and the sale of moveables are the same as upon executions of judgments of the Jiiuperior Court, and the provisions con- cerning seizure by garnishment after judgment in the Superior Court apply likewise to such seizures issuing from the Circuit Court. 1, In the Circuit Court a contestation of the declaration of a tiers »am may be filed after the lapse of eight days from the filing of the declara- tion. Lovell v. Fontaine <& Amton, 5 L. C. J. 284, C. C. 1811. NOM-APPEALABLB OASES, ARTS. 1090-1098. 607 it thereof, ninst such ct in which ,ny Buch (Seig- le holder of the e rente or the in the Circuit ioles 1054, 1055 otwithBtanding, B procedure and id as having no atterB involving aeni rendered in )veablefl, may he Bale of the im- leizure or sale Bgoing proviB- ,rt into which me manner as )urt. Ibid. 8. jBeBBion should be am V. Hurtubise <£ of the seizure pon executions jrovisions con- igment in the 3S issuing from Lion of ft tiert said [ing of the deolarft- 1811. 1090. Upon the return into the Superior Court of a writ of execution against immoveables, granted by the Circuit Court, the former court may order the clerk of the latter to transmit the original record in the case, that it may serve for all legal purposes. Ibid. s. 207. SECTION VI. OF REMEDIES AGAINST JUDGMENTS. lOttl* Any party who deem judgment of the Circuit Cour^ the case before three judges o ing to the provisions containei 28 V. c. 39, s. 20. ^ imself aggrieved by a obtain a re-hearing of ^ior Court, accord- jB 494 to 504. 27- 1002> Such party has likewise a remedy by appeal, in conformity with the provisions contained in the fourth book of this code. C. S. L. C. c. 77, s. 89. CHAPTEE THIRD. PROVISIONS PARTICULAR TO NON-APPEALABLE CASES. 1008* When a non-appealable case is returnable during term in the Circuit Court, the defendant is bound to appear in open court on the day and at the hour specified, without having a delay until the next day to file his appearance. C. S. L. C. c. 83, 8. 189. 1. The court not having sat until 11.30 p.m. on the day of the return, the majority of the judges decided that plaintiff could not proceed by default although defendant made default when called ; and the action was dismissed. The City Bank v. Saurin, 2 Bev de L6g. 48 Q. B. 1814. ,' i :«.■• Mi I ,i-; I -iff Pi IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I ■^ lU ■2.2 w u^ ■■■ 2.0 us li& I^IMIJ^ ' - ^ 6" ► Photographic Sciences Corporation 33 WIST MAIN STRf ET WEBSTER, N.Y. 14SM (716)t72-4)03 o^ •^ 608 OF THE CIRCUIT COURT, ARTS. 1094-1097. 1004. If the judge is absent the case may be called, and appearance or default recorded by the clerk. Ihid, § 2. 1005* Confessions of judgment may be given orally in open court ; or out of term pursuant to the provisions con- tained in articles 94 and following, and judgment may be rendered accordingly. 25 V. c. 10, s. 10. 84 Vict. c. 4 (Que.) : 11. Article 1095 of the said code is hereby amended by adding thereto the following paragraph : "On any day during a term or the time fixed for the holding thereof, if the judge is absent or cannot hold the court on that day, such confessions may be given in the same manner as out of term." 1090. If the defendant fails to appear, the plaintiff may forthwith proceed with his proof, and the court may thereupon render judgment accordingly. C. S. L. C. c. 88, 8. 189, § 3. 1097* If the case is returnable in term, the defendant, upon ap'pearing, is hound to plead forthwith. He may do so in writing or orally, at his option, unless the court orders that the pleas shall, within a fixed delay, be made out in writi7ig ,- but the plaintiff is not bound to answer in writing unless the court so orders. Ibid. b. 190. 47 Vict. c. 8. (Que.) : Article 1097 of the said Code is hereby amended by striking out all the words of the said article after the words ** if the case is returnable in term," and by substituting therefor the following words : " the proceedings with respect to appearance, default, judgment by default, and relief therefrom, confession of judgment, written pleadings and the inscription of the case are the same as in actions returnable in vacation under article 1099. 48 Vict, c. 14, (Que.) : 1. Section 11 of the Act 47 Victoria, chapter 8, is amended by adding after the words " article 1099 " in the last line, the foUowing words, " except in the districts of Beauce, Bimouski and Terrebonne." NON-APPEALABLE CASES, ARTS. 1098-1102. ■I I 609 1008* If the defendant does not plead in writing, he is called upon by the court to specify what allegations of the declaration he admits, and such admissions are recorded. - If he makes no such admissions he is held to have denied all the facts alleged, and is liable for the costs of proving such of them as may be proved. No other articulation of facts is required. Ilnd,, § 2, s. 93, § 2. 1099. If the action is returnable in vacation, the pro- ceedings with respect to appearance, default, judgment by default and relief therefrom, confession of judgment, written pleadings, and the inscription of the case, are the same as in appealable cases ; but no den ind of plea or of answer is necessary in order to obtain a foreclosure ; the notice of inscription for proof and hearing must be given at least three days beforehand ; and if the defendant fails to appear or to plead, the plaiu^^^iff is not bound to give notice of the inscription of the case for proof, when such proof is neces- sary. Ihid. ss. 193-4-5-6-7. 1. In iion-appealable cases, Circuit Court, where the writ is returned out of term, the notice of inscription for proof and hearing on the merits must be given three days at least beforehand, even where such notice is given during term. Neilan v. Demers, 4 Q. L. R. 300, 9 Q. L. R. 277, C. C. 1878. IIOO- [If the defendant fails to appear or to plead in any case returnable in term, the plaintiff may at any time proceed to judgment in the same manner as if the action were returnable in vacation.] 1101* The proof in all cases is made orally and in open court, without its being necessary to take notes of the evidence. Ibid., s. 191. 1102. Judgments for sums not exceeding forty dollars can only be executed upon [the moveable property of the debtor, except in the case of hypothecary actions, or of 39 F. c. 0. p. , ^r ilJ M' >' >« \uS\ ) '' - iS 610 OF THE CIRCUIT COURT, ARTS. 1102-1104. rents created under the Seigniorial Act of 1854, in Mrhich cases the court may issue execution against the immoveable charged, according to the formalities prescribed in the pre- ceding chapter. Ibid. s. 202. 1. In a suit for 945, dismissed with costs, a writ of Ji. fa. de territ may issue from the non-appealable side of the C. C. against the plaintiff's lands to satisfy the defendant's costs taxed at a sum exceeding $40. Moore v. Keane et vir, 6 Q. L. R. 378, S. C. R. 1880 ; Chdrbonneau v. Char- bonneau, 6 Q. L. R. 383, S. C. R. 1880. 1103* The provisions concerning oppositions and stay of proceedings, contained in the preceding chapter, as well as those concerning seizures by garnishment after judg- ment, must also be observed in non-appealable cases. Ibid. s. 203. 1104* All non-appealable suits are determined in a summary manner, and when the amount claimed does not exceed twenty-five dollars they are decided according to equity and good conscience. The provisions of article 1080 apply to non-appealable cases. C. S. L. C. c. 79, s. 2, §§ 2-3. SUITS BETWEEN LESSORS AND LESSEES, ARTS. 1105-1106. 611 u de terris may the plaintiff's exceeding $40. tonneau v. Char- jrmined in a imed does not according to 3f article 1080 ic. 79, 8. 2, §§ TITLE THIRD. OF SUITS BETWEEN LESSORS AND LESSEES. Ii05. The Circuit Court has jurisdiction in cases be- tween lessors and lessees, whenever the rent, or the annual value, or the amount of damages claimed, does not exceed two hundred dollars. C. S. L. C. c. 40, s. 41 ; 25 Vict, c. 12, s. 1. 1106« The provisions contained in the first chapter of title second of the second part of this code apply to suits brought before the Circuit Court. 1. In cases of saisie gagerie in the Circuit Court a declaration need not be served by a bailiff, but may be left at the prothonotary's office. Brahadi v. Bergeron, 10 L. C. J. 117, Q. B. 1866. iv 1 t^ i,^ \ii^ • •: I in it tip" ' '1 ;i* 1 ( i; 1 1 ' '■1' *; m 612 LANDS HELD IN COMMON SOCCAOE, ARTS. 1107-1110. 'b !:,' TITLE FOURTH. SUITS IN CASES OF ILLEGAL DETENTION OF LANDS HELD IN FREE AND COMMON SOCCAGE. 1107* Concurrently with the jurisdiction of the Super- ior Court in such matters, petitory or possessory actions against persons illegally detaining lands held in free and common soccage in the townships, may be brought before the Circuit Court in the circuit within which such lands are situated, or out of term before a juv^.^e of the Superior Court, who may hear and determine such suits in vacation, as the Circuit Court might also do, whatever maybe the value of the lands ; and the proceedings in all such cases form part of the records of the Circuit Court. C. S. L. C. c. 45, ss. 1-10. 1. The proprietor of an immoveable, leased by his auteur, cannot bring a petitory action against the tenant when he (the proprietor) has recog- nised the lease ; he should proceed by a personal action in ejectment. Boudreau v. Dorais, 10 R. L. 458. Q. B, 1880. IIOS. The plaintiff in any such suits may add con- clusions for the rents, issues and profits of such lands, and for any other damages he may have suffered. Ihid. s. 11. 1109. Such suits are subject to the same provisions as other appealable cases in the Circuit Court, as regards summons, pleading and proof. Ihid. s. 5. 11 lO. The defendant may plead all matters of defence, even adverse title, and may also claim, by incidental de- mand, whatever sum he may be entitled to for improve- ments made upon the lands. Ihid. ss. 3, 12, 15. .NDB HELD LANDS HELD IN COMMON BOOCAOE, ARTS. 1110-1113. 613 1. In a petitory action to recover the posaesBion of a lot of land, the defendant, by peremptory exception, pleaded, asking that the plaintiff be condemned to pay him the value of the improvements he had made on the property — Held, that a possessor in bad faith has no right of detention for improvements. Lane et al. v. Deloge, 1 L. C. J. 3, S. C. 1850. 2. But in a petitory action brou^,ht by the plaintiff to recover pos- session of a portion of lot number ttm in the 8th range of the township of Ely — Held, that the possessor in good faith was entitled to his improvements, and was not liable for rent and profits accrued previous to the service of process. Knowlton et al. v. Clarke et vir, 9 L. G. J. 24.'), Q. B. 1864. nil* [If either of the parties is aggrieved by the judg- ment he may inscribe the case for hearing before three judges of the Superior Court, according to the provisions contained in articles 494 and following, and without preju- dice to the right of appeal to the Court of Queen's Bench.] Ihid. ss. 1, 2. 11 13* 'L^he judgment may, when the plaintiff is entitled to it, declare him owner of the lands in question, and order the defendant to restore them to him within twenty days from service of judgment, and such judgment maybe carried into effect by means of a writ of possession, as prescribed in articles 549 and 550. Ibid. s. 6. 1113> An appeal lies from such judgment to the Court of Queen's Bench, in the same manner as any other appeal from the Circuit Court; nevertheless, the security must be by two sureties, upon real propei'ty to the value of two hundred dollars each; and the petition must be served within fifteen days after the judgment, and be presented on the first day of the term next after the expiration of such fifteen days. 25 V. c. 10, s. 7. Kl' . ' ' IC 614 COURT OF queen's BENCH, ARTS. 1114-1115. BOOK FOURTH. COURT OF QUEEN'S BENCH (APPEAL SIDE). CHAPTER FIRST. OF ERROR AND APPEAL FROM JUDGMENTS OF THE SUPERIOR COURT. 1114. Error may be brought, by means of a writ of error against any judgment of the Superior Court founded upon a general verdict given by a special jury. It must be brought before the Court of Queen's Bench sitting in appeal. Questions of law only can be argued in error. C. S. L. C. c. 77, ss. 4, 24 ; c. 83, ss. 32, 41. 1. A writ of appeal and not a writ of error will lie in the case of a jury trial when the grievance is not merely an error in a matter of law, and when the verdict of the jury is a final adjudication of law and fact. Casey V. Goldsmid et al. 2 L. C. B. 212, Q. B. 1862. 2. The proper mode of bringing up a judgment on a rule of contempt against the prothonotary is by writ of error. Loranger v. Beed, 5 L. N. 897, Q. B. 1882. 1115- An appeal lies to the same court upon any other final judgment rendered by the Superior Court, except in cases of certiorari, and in matters concerning municipal corporations or offices, as provided in article 1083. C. S. L. C. c. 77, s. 4 ; c. 83, ss. 17, 4] ; c. 89, ss. 6, 17. HE SUPERIOR APPEAL FROM SUPERIOR COURT, ART. 1115. 616 84 Vict. c. 4 (Que.) : 12. Article lllS of the aaid Code is hereby amended by adding, at the end thereof, the following words: "And except also in cases for an amount not exceeding two hundred dollars, in which the judgment has been confirmed in review before three judges." See 37 Vict., o. 6 (Que.), under art. 404 ante. 1. No appeal lies to the Queen's Bench from a judgment of the Superior Court, on an election petition under the " Dominion Controverted Elections Act." Mackenzie v. White, 20 L. C. J. 22 ; Gushing v. Owens ; Bruneau et al. v. Massue, 23 L. C. J. 60. 9 B. L. 624, Q. B. 1878. 2. A judgment of the Superior Court, refusing to grant a writ of mandamus upon n petition complaining that the Bishop of Quebec had refused to read the funeral service over the dead body of an individual, is a final judgment and may be appealed from. Wurtele v. The Bishop of Quebec, 2 L. C. R. 65, Q. B. 1852. 3. A judgment rendered on an application for a writ of habeas corpus, made in vacation before a judge of the Superior Court, and, on return, transmitted to the Superior Court for further proceedings thereon, is a judgment of the court and not of the judge, and as such is susceptible of review or appeal. Barlow v. Kennedy, 17 L. C. J. 253, Q. B. 1871. 4. There is no right of appeal from a conviction of justices of the peace under the Quebec License Act. Page v. Griffith, 17 L. C. J. 302, Q. B. 1873. 6. An action in declaration of a hypothec being of the nature of a real action is appealable, and the evidence must be taken in writing on demand of any of the parties. Dupont et al. v. Grange, 10 L. C. J. 75, Q. B. 18G5, 16 L. C. R. 147. :f' /a- 6. There is no appeal from jiidgments rendered either in chambers or in banco when they concern matters of summary jurisdiction which are not contested. A^idrews et ux. v. Davies, 1 R. L. 210, Q. B. 1856. 7. Where an appeal was had from a judgment confirming and adopt- ing a verdict of a special jury in the court below — Held, that as no mo- tion had been made in the court below to set aside the verdict, or for a new trial, or in arrest of judgment, the verdict could not be set aside in appeal. Shaw et al. v. Meikleham, 3 L. C. J. 5, Q. B. 1858. 8. Where, in an action of damages for a voie de fait for ^200, judg- ment was given in review for $10 and costs as in an action of 9120 — Held, that there was no appeal to the Queen's Bench by defendant. Hyacinthe v. Hart, 14 L. C. J. 223, Q. B. 1869. 'M 616 COURT OF queen's bench, arts. 1115-1116. 9. The atnouut demanded detormineH the riKht of appeal, and not thu amount of the judgment appealed from. Boudreau v. Suite, 8 Q. L. II. 880, Q. B. 1877 ; The Grand Trunk Ry. Co. v. Oodbout, 8 Q. L B. 840, Q. B. 1877. Bee Joyce v. Hart, 1 8. C. Rep. 821, under art. 1178. 10. No appeal lies from a judgment confirmed in part, in review, wheru the party complains only of that part which wua conftrnied. Beauchhic V. La Bale, 10 R. L. 115, Q. B. 1876. 11. Appeal lies to the Q. B. from every judgment of the S. C. irrou- pective of the amount in dispute. Matlieton v. Cadieux, 8 L. N. 110, Q. B. 1880. 12. An appeal lies from a judgment homologating an uncontested report of distribution. Ka»tern Totonshipn Hank v. I'acaud, 17 L. C. R, 126, 2 L. C. L. J. 270, Q. B. 1866 ; Slwrtis v. Normand, 8 Q. L. R. 882, Q. B. 1877. See cases under art. 494 and 1178. 1 1 r I 1116. An appeal also lies from interlocutory ju(l(];mcnts in the following cases : 1. When they in part decide the issues ; 2. "When they order the doing of anything which cannot be remedied by the final judgment ; 3. When they unnecessarily delay the trial of the suit. C. S. L. C. c. 77, ss. 23, 26, § 3. 1. An appeal from a judgment dismissing a petition for release under a capias and from various other interlocutory orders and judgments in connection with such capias, and rendered partly by the court below and partly by a judge thereof in chambers, may be instituted by one and the same writ, and without obtaining the previous permission of the Court of Appeal. Phillips v. Sutherland, 19 L. C. J. 134, Q. B. 1875. 2. Where a defendant under arrest on a capias applied by a petition to a judge for his discharge under 12 Vict. cap. 42, sec. 2, and the petition being rejected he appealed ; the appeal was allowed and the writ ordered to issue accordingly. Blanckemee v. Sharpley, 3 L. C. J. 292, Q. B. 1859. 3. An application to be allowed to appeal from a ruling at enquHe which is manifestly wrong will be rejected when the granting of the appeal will have the effect of retarding the case. Le Curif etc., de Beauharnois v. Eobillard, 20 L. C. J. 294, Q. B. 1876. APPKAL FROM SUPERIOR COURT, ART. 1116. m 4. No appeal will be allowed from a judgment diBniisBin^ a motion to reviHe a ruling at enquHe, parties in suoh case proceeding at their own risk, and if onH of them be aggrieved the case may come up on apiwal at a later stage of the proceedings, lludon v. Puinchauil, 16 L. C. R. 4B7, Q. I). 1806; Ontario Bank v. Duchetnay, lU L. C. U. 11)4, Q. 1). 1866. 6. Nor from an interlocutory judgment dismiBsing a demurrer to a declaration. Denning v. Grange, la L. C. J. 163, Q. B. 1808. 6. Nor from an interlocutory judgment rejecting a motion to unite two suits into one. Folerj et al. v. Tarratt et al., 9 L. C. J. 108, Q. B. 1865. 7. Where the court below overruled a demurrer to a plea which set up the truth of the slander charged and alleged similar acts against the plaintiff on other occasions, leave to appeal was refused, liouleau v. Lortie, Q. L. R. 166, Q. B. 1880. 8. An appeal was not allowed in the present instance, from a judgment ordering preuve avant /aire droit, but the court may grant an appeal in such cases under certain circumstances. Banque D'Uochelaga v. Lavender, 6 L. N. 878, Q. B. 1882. 9. Nor from a judgment on an exception tending to obtain the suspen* sion of proceedings until a decision be rendered in another cause between the same parties on similar matters. Donegani v. Quennel, 1 L. C. 1\. 411, Q. B. 1861. 10. An appeal ought to be allowed from an interlocutory judgment which cannot be remedied by the final judgment, unless the court be clearly of opinion that the judgment complained of must be confirmed. Cheney <^ Frigon etal., 15 L. C. J. 57, Q. B. 1870. 11. On a motion by the respondent lo set aside a writ of appeal— H«W, that a judgment which determines all the inatters in litigation between the parties with the exception of the amount claimed under a plea of compensation, and ordom preuve avant faire droit on such a plea, and that the amount of compensation be settled by experts, reserving the question of costs, is not a final j)i')gment entitling the party aggrieved to sue out a writ of appeal de piano, and the motion was granted. Wardle v. Bethune, 6 L. C. J. 220, Q. B. 1862. 12. A party is not entitled to an appeal from an interlocutory judg- ment, rejecting an exception to the form upon the ground of its having been filed too late, if the grounds of such exception to the form might have been made the grounds of a demurrer filed in the same cause, be cause the Court of Appeals cannot say if the grievance complained of may be irremediable or not, the demurrer not being before the court. Moreau v. Mott, 3 L. C. R. 63, Q. B. 1853. h •; 618 COUUT OF quekn's bknch, aut. 1110. 18. The renpondont having ootnplainod of damiifte oaup«<<1 to hia pro- perty by certain provincial worku, tho matter waH referred to arbitratorn and the demand diHmiHned. TIte reHpondeiit then appealed under 22 Viot. cap. 8, seo. , Q. B, 1880. 23. An appeal will be granted from an intei'locutory jud({ment dismisH. ing upon motion a demurrer, and a special plea filed by defendants. Low V. The Montreal THeyraph Co., 4 L. N. 881, Q. B. 1881. 24. An appeal will not be granted from a jud>{ment allowing plaintiff to serve a cortittod copy of the declaration, when the copy orif^inally Hcrved WHS not BO certified. TliMen v. U'adleifili, 1 Q. B. R. 300, Q. B. 1881. 25. Plaintiffs havin({ moved in the court below for delay to contfHf, or reject an account filed by defendant, obtained a delay to contest it on the merits. They then moved to reject the account. This motion was rejected. Leave to appeal from this latter judf^ment was refused bccauHO they should have applied for leave to appeal from the two judgments. Hender»on et al. v. Hendvrxon, 1 Q. B. R. 304, Q. B. 1881. % /n h 'ir :>'■• "I i * bl 20. An order of the Superior Court naminj,' commissioners in a matter of expropriation is only an interlocutory order, and cannot bo appealed from (/c piano. The Canada linhher Co. v. The City of Montreal, 25 L. C. J, 231, Q. B. 1880. 27. To determine whether an interlocutory judgment is appealable, the court will look, not at the reasons of the jud^jinont, but at wh ' t is adjudged by it. Nadeau v. Cheval dit St. Jacques, 7 L. N. 114. Q. B. 1884. 28. The court will not grant leave to appeal from an interlocutory judg- ment, while the record is before the court of review on an inscription from the same decision. Ihirrouyhs v. Merriman, 7 L. N. 299 ; Q. B. 1884. 29. Appeal allowed from an interlocutory judgment which ordered a reference to the Roman Catholic Bishop, in a case whei'e a marriage of two Catholics had been celebrated by a clergyman of the Protestant faith. Evans v, Laramie et al.. 5 L. N. 134, Q. B. 1882. 30. An appeal will lie from a judgment dismissing an inscription in improbation, but not de plo i, liemidry v. The Mayor, etc., of Montreal, 11 L. C. J. 28, 2 L. C. L. J. 231, Q. B. 18(56. I I '•VJ:^5i( .'! .iA 620 COURT OF queen's BENCH, ARTS. 1116-1118. 31. An appeal lies from an order of the Superior Court discharging an inscription for hearing in vacation on the merits of an exception to the form, without the consent in writing of the parties for such hearing out in term. Dease v. Taylor, 2 L. C. R. 227, Q. B. 1852. 32. An appeal will lie from a judgment rejecting an inscription because no articulations were filed. Ballay v. Gray, 4 Q. L. R. 91, Q. B. 1874. 33. The Court of Appeal ought not to interfere with the rulings of the court below on points of practice. Lepine v. Musson, 1(5 L. C. J. 296, Q. B. 1872. 34. An appeal to the Court of Q. B. does not lie from any judgment of the S. C. under the Insolvent Act which is not a final judgment. McKati V. St. Lawrence Salmon Fishing Co., 21 L. C. J. 76, Q. B. 1876. Meclianics' Bank v. St. Jean, 9 R. L. 659, Q. B. 1879. 1117* Proceedings in error or in appeal from judgmentg rendered in the districts of Montreal, Ottawa, Tei*rebonne, Joliette, Richelieu, St. Francis, Bedford, St. Hyacinthe, Iberville and Beauharnois, are brought, heard and deter- mined in the city of Montreal, and the writ is made re- turnable there, and the like proceedings against judgments rendered in the districts of Quebec, Three Rivers, Su^'uenay, Chicout'mi, Gaspe, Rimouski, Kamouraska, Montmagny, Beauce and Arthabaska, are brought, heard and determined in the city of Quebec, and the writ is made returnable there. Ibid. s. 22. HIS. [Proceedings in error or in appeal must be brought within a year from the date of the. judgment, saving the cases provided for by articles 823, 1033 and 1037 ; this delay of a year is binding even upon minors, women under cover- ture, persons of unsound mind or interdicted, and upon persons absent from Lower Canada, when those who repre- sent 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 reckoned only from the day of his death, against his heirs or legal representatives. Iliilli^ fii! 18. discharging an sception to the ich hearing out jription because , Q. B. 1874. e rulings of the l(i L. C. J. 290, any judgment of Igment. McKay L876. Mechanics' om judgmentg I, Terrebonne, ^t. Hyacintlie, i,rd and deter- •it i3 made re- tnst judgments ers, Sut^uenay, Montmagny, nd determined Iturnable there. Ilay is reckoned heirs or legal APPEAL FROM SUPERIOR COURT, ARTS. 1118-1119. 621 Proceedings in error or in appeal cannot, however, be taken during the delay allowed for demanding a review before three judges, nor during the proceedings for such review. In cases of judgment by default in vacation, the delay for appealing runs only from the expiration of the time allowed for filing an opposition thereto.] Ibid. ss. 27-55 ; c. 83, s. 128 ; 27-28 V. c. 89, s. 22. Evanturel v. Evantiirel, 17 L. C. R. 223. 34 Vict. c. 4 (Que.): 13. Notwithstanding article 1118 of the said code, proceedings in error or in appeal may be taken during the delay allowed for demanding a review before three judges, or after proceedings in review have been com- menced if the party who has taken each proceedings discontinue the same. 46 Vict., c. 26 Que.) : , 6. Every appeal from interlocutory judgments shall be inscribed by the clerk of the court, and heard by privilege, in a summary manner, without any reasons of appeal or factums. 1. An appeal made within the period of eight days from the rendering of a judgment subject to revision as allowed by law, is premature. Beau- lieuv. Charlton, 11 L. C. J. 297, Q. B. 18(56. 2. A wife, separate as to property, may appeal from a judgment ren- dered against her, even after a year and a day elapsing, during the life of her husband. Walker et vir v. The Mai/or, etc., of the Town of Sorel, 10 L. C. J. 77, Q. B. 18G5. IIIO. If the appeal is from an interlocutory judgment, it must first be allowed by the Court of Queen's Bench, upon a motion supported with copies of such portions of the record as may be necessary to decide whether the judgment in question is susceptible of appeal, and falls within one of the cases specified in article 1116. The motion must be made during the term next after such rendering of the judgment, and cannot be received afterwards ; suving, however, the party's right to urge his reasons against such judgment upon an appeal from the V. n 3,ysr ;!.ip| m V.-:'vnV':IM ■ ■' t'''# '■, u 622 COURT OF queen's BENCH, ARTS. 1119-1120. proceedings in error against the final judgment. C. c. 77, s. 26, § 4 ; 27th Rule of P. Q. B. C. S. L. 1. On a motion to be permitted to appeal from an interlocutory judg- ment— H«/d, that such a motion, though not made during the term immediately subsequent to the rendering of the judgment, is not too late when the appellant had previously sued out a writ of appeal de piano, whici was set aside as having issued irregularly. Wardle v. Bethune, 6 L. C. J.iil, Q.B. 1862. 2. Appellants took out a writ of appeal immediately after the judgment, and before the delay for inscribing in review had expired. Respondent inscribed in review within the delays allowed for inscribing in review, and then moved to dismiss the appeal : 1. Because the judg- ment a quo was not final, and an appeal de piano did not lie ; 2. Because it had been taken within the delays allowed for inscribing in review. Held, 1. That the appeal was rightly taken and respondent could demand only that proceedings be suspended until those in review were disposed of ; 2. That a judgment ordering a party to do a specific act, as the deliver- ing of certain promissory notes within a certain delay, or to pay a fixed amount, is a final judgment from which an appeal lies de piano. Caasilt et at. V. Fair, 2 Q. B. R. 382, Q. B. 1882.' 3. In order to be allowed to appeal from an interlocutory judgment, application must be made at the next term following such judgment. Ihe Seminary of Quebec v. Vinet et al., 6 L. C. J. 138, Q. B. 1861. 4. The court will reject a motion to obtain a rule for writ of appeal from an interlocutory judgment, where it is against the party moving on the merits of his application. Mann et al. v. Lambe, 6 L. C. J. 75, Q. £. 1862. 5. A judgment quashing a capias is an interlocutory judgment, and cannot be appealed from de piano. Berry v. May, 10 L. C. R. 196, Q. B. 1860. 6. Where the defendant under capias petitioned to be released, and the petition was rejected — Held, that he had a right to appeal from such judgment de piano, and therefore an application . by him for leave to appeal would be rejected on that ground. The Canadian Bank of Com- merce V. Brovm et at., 19 L. C. J. 110, Q. B. 1874. See Phillips v. Sutherland, under art. 1116. IISO* The motion 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 grant- .20. it. C. S. L. erlocutory judg- .uring the term it, is not too late appeal de piano, e V. Bethune, 6 L. lately after the iew had expired. !ved for inscribing Because the judg- ,tlie; 2. Because iginreview. Held, jould demand only were disposed of; act, as the deliver- y, or to pay a fixed IB de piano. CaaaiU •locutory judgment, ng such judgment. B. 1861. e for writ of appeal he party moving on 6 L. C. J. 75, Q. B. tory judgment, and L. C. R. 195, Q. B. to be released, and to appeal from such y him for leave to nadian Bank of Com- )on the opposite lie, calling upon sainst the grant- APPEAL FROM SUPERIOR COURT, ARTS. 1120-1121. 623 ing of t>'e appeal ; and the service of such rule upon him has •> )ffect of suspending all proceedings before the court t..Iow. Ibid. §§ 4-5. 1131. Proceedings in error or in appeal are brought by means of a writ, in the English or in the French language, issued from the Court of Queen's Bench, upon the written demand of the party aggrieved, containing the names and description of the parties in the suit before the court below, and mentioning the place and time at which the judgment was rendered. It is addressed in the name of the sovereign, to the judges of the Superior Court, commanding them to send up, within twenty days, the record in the case, together with a trans- script of all entries made in such case in the registers of the Superior Court and of the judgment ; it is signed by the clerk of appeals or his deputy, and sealed with the seal of the Court of Queen's Bench ; but this latter formality is not required on pain of nullity. If the appeal is from an interlocutory judgment, the clerk must endorse upon the writ that it is issued by order of the court. C. S. L. C. c. 77, ss. 26-28 ; 7th Rule of P. Q. B. 1. A writ of appeal need not be signed by appellant's attorney. Hope V. Frank, 16 L. C. J. 252, Q. B. 1871 ; Caruida Invest. <& Agency Co. V. Hndon, 2 Q. B. R. 128, Q. B. 1880. 2. The rule of practice which prescribes that all writs of appeal should bear the signature of the attorney suing out the appeal is merely directory, and where a motion to amend by supplying the name was made, a motion to dismiss for illegality was discharged, and the motion to amend granted, llou v. Scott, 9 L. C. R. 270, Q. B. 1859. 3. And in a later case of the same nature, where the respondent moved to annul, the appellant was permitted to amend on payment cf costs. Viger v. Beliveau, 6 L. C. J. 177, & 12 L. C. R. 405, Q. B. 1862. •4. Defendancswho have pleaded separately may, nevertheless, proceed to appeal from the judgment rendered by the same writ. Spelman et at. V. Itobidoux, 12 L. C. J. 227, Q. B. 1808. I mm Pi I ■1 ■\:1 m*. Wi 624 COURT OP QUKEN's BENCH, ART. 1121. 5. An execution cannot be issued on a judgment rendered against four defendants, if one of them have instituted an appeal, and such appeal is still pending. Brush et al. v. Wilson et al., 6 L. C. R. 89, 8. C. 1858. 6. Where, in an ordinary hypothecary action, the defendant against whom judgment had been rendered in the Superior Court appealed, and about the same time presented a petition to the judges of the Superior Court and to the prothonotary, praying that, inasmuch as tlic property in question was of less value than the amount for which judg- ment had been rendered, that he be allowed to abandon the property conditionally, the abandonment to remain good if the judgment were confirmed, and if reversed, to be null and void — Held, that the abandon- ment made in accordance with such petition was null, inasmuch as a judgment from which an appeal had been taken had not the force of a chose jugJe, HatrisHe v. Brault, 2 L, C. J. 303, Q. B. 1858. 7. Action was broucht upon a judgment recovered by the plaintiffs against the defendant in the Court of Common Pleas of Upper Canada, The defendant pleaded by dilatory exception that the judgment having been confirmed by the Court of Error and Appeal they had appealed to the P. C. and said appeal was still pending. The parties having been heard upon the merits of sucli exception — Held, that the pendency of such appeal, when security for costs had only been given, was no defence to the action brought on such judgment in Lower Canada. The Northern Railway of Canada v. Patton, 17 L. C. R. 71, S. C. 18G7. 8. An opposition to an execution on the ground that the opponent has taken out a writ of appeal from the judgment will be rejected, unless security for the appeal precede the opposition. Brown et al. v. Lionais et al. db Lionas et ah, 20 L. C. J. 280, S. C. 1876. 9. In an appeal by one writ from three different judgments rendered in the Superior Court — Held, both on the motion and on the hearing of the case, that one appeal could be instituted from one principal judgment and from the judgments under oppositions in the same cause. Wagnoiu-.r V. Richer, 13 L. C. R. 102, Q. B. 18G2. 10. Where the appellant took a writ of appeal, in which the judgment complained of was said to be of the 20th March, and then, with a view of saving costs, took an alias writ, on which he was afterwards allowed by u judge in Chambers to affix full stf mps, subject to objection, and the respondent moved to reject the appeal, on the ground that the first writ was a nullity, and the alias should be a copy of the first — Held, that although the original writ was a nullity, the words " alias writ," on the second were surplusage, and the motion was rejected. Bernier v. Gaumond, 18 L. C. J. 209, Q. B. 1874. ndered against peal, and such C. R. 39, S. C. 'endant against 3ourt appealed, judges of the nasmuch as the for which judg- on the property judgment were it the abandon- , inasmuch as a ot the force of a by the plaintiffs Upper Canada, judgment having • had appealed to •ties having been pendency of such as no defence to The Northern lie opponent has )e rejected, unless al. V. Lionais ct nents rendered in le hearing of the incipal judgment cause. Waggoner ich the judgment en, with a view of ards allowed by a bjection, and the ihat the first writ first— He/d, that lias writ," on the ernier v. Oaunwnd, APPEAL FROM SUPEUIOK COURT, ARTS. 1121-1124. 625 11. Appellant filed two oppositions claiming di£Fereiit parts of the property seized by separate titlos. The two cases were conducted separately, and two judgments intervened rejecting the oppositions. Appellant took out one writ of appe ,1 from both judgments. Upon a raotion to reject the appeal the court held that as no disadvantage to respondent had been shown the motion should be rejected without costs. Dionne v. Rosa, 3 L. N. 299, Q. B. 1880. 1133. The delay for returning the writ may be extended, according to the distance between the place where the judgment was rendered and the place where the writ is to be returned. 7th Eule of P. Q. B. 1. A judge of the Queen's Bencli in Chambers has power to shorten the delay for return of a writ of appeal. Phillips v. Sutlierland, 19 L. C. J. 134 , Q. B. 1876. 1133. The writ of error or of appeal must be served upon the opposite party by leaving a copy with him or at his domicile, or with his attorney ad litem in person ; and it must afterwards be deposited with the prothonotary of the court by which the judgment was rendered. A return of such service and deposit must be made by the bailiff upon an authentic copy of the writ of appeal or error, which copy must be filed in the office of the clerk of appeals. 8th Rule of P. 1. The certificate of service of a writ of appeal must show a personal service either upon the attorney of the respondent or upon the respondent himaelf. Dupuis v. Dupuis, L. C. R. 429, Q. B. 1885; Gauvinv. Rochette, 5 L. N. 142, Q. B. 1882. 2. Where the appellant had only given notice of appeal and of security, but had neglected to serve a copy of the writ in time — Held, that a motion for nonpros would lie. Peloquin v. Lamothe, 3 R. L. 58, C. C. 1874. 3. The copies of the writs of appeal may be certified by the attorneys ad litem. Morrison et al. v. Dambourges et al., 11 L. C. J. 126 & 3 L. C. L. J. 118, Q. B. 1867. 1134. The appellant or plaintiff in error must, before the record can be sent up, give good and sufficient security that he will effectually proaecute the appeal or proceedings 40 F. c. c. p. HM i^'i'« I ■•: l'-;i I ,;ii,..*.i;t'i' 626 COURT OF QUKEN's BENCH, ART. 1124. in error, and that he will satisfy the condemnation and pay all costs and damages adjudged, in case the judgment appealed from is confirmed ; or else he must declare in writing at the office of the prothonotary of the court, whose judgment is appealed from, that he does not object to the judgment rendered against him being executed according to law, in which case he is only bound to give security for the payment of the costs in appeal, if he fails ; and if the judg- ment is reversed, the respondent who has caused the judg- ment to be executed is bound to refund to the appellant the net amount only of the moneys levied by execution, together with legal interest, or to restore the property of which he was put in possession, together with the rents, issues and profits since. C. S. L. C. c. 77, ss. 23, 42-3, 1. The sureties in appeal are held to the payment of the costs of tlio appeal without the rifjht to require the previous discussion of the parties to the suit. Larose et al. v. Wihon, 16 L. C. J. 29, Q. B. 1872. 2. The advocate who succeeds in appeal, and to whom distraction of costs is granted, may bring an action against the sureties in appeal in the name of his client for the recovery of the said costs. Ibid, 3. The sureties in such case are not entitled to a delay of fifteen days from the day of judgment. Ibid. 4. They are judicial sureties, and as such are liable to contniiiite par corps. Dumont v, Dorion et al., 3 R. L. 300. 5. The filing of a copy certified by the prothonotary of a bond givei^ bafore a judge before the allowance of a writ of appeal is sufficient proof of the execution of the bond and of the liability incurred by the sureties without further evidence. Gosselin v. Chapman, 6 L. C. R. 85, S. C. 185(5. 6. The sureties in appeal are not bound for the condewination money when the appellant files a declaration to the effect that the judgment appealed from could be executed, altliough the appeal bond iias been executed in the usual way. Cliaurette v. liapin 9 ill appeal in the xy of fifteen days to contrainte par 9. And where the respondents served a notice on the appellants, that they would put in security for appeal to the Privy Council on the 18th of August, in the judges' chambers, in the court house, and security was not put in on that day, but notice was given later, on the Saturday, that secu- rity \yould be entered in chambers on Monday, on which day security was put in, not in chambers but in the judge's house, one of the parties sign- ing the bond in the forenoon and the other in the afternoon —Held, on motion to set aside the bond for irregularity and want of sufficient notice, that the bond must remain ; but allowing the parties moving to make such objection to the sufficiency of the security as they might legally have made when such security was put in. Gibh et al. v. The lieacon Fire ami Life Inmrance Company, 10 L. C. R. 402, Q. B. 1860. 10. In a notice of security in appeal the date for filing such security was changed by erasing that given in the body of the document and in- serting another in the margin, no mention of such change being made at the foot of the paper— ffe/rf, that this was not material, so as to avoid the service, and the court would maintain it according to circumstances. Demen v. Parant et al , 5 L. C. R. 36. Q. B. 18.54. 11. On an appeal from a judgment ordering a writ of contrainte par corps against the defendant where the sureties guaranteed that the defendant should prosecute the appeal and pay such condemnation money, costs and damages as should be adjudged in case the judgment of the Superior Court was confirmed- -//e/rf, that the sureties were not immediately liable to the plaintiff for more than the costs of the appeal, and were not liable for the balance of the condemnation money against the defendant until the plaintiff had first enforced the order for contrainte against the defendant. Whitney v. Brooks et al., 5 L. C. J. 161, S. C. 1862. 12. Notice was given on the 15th that security in appeal would be given on the 17th. Another notice was given that the same security would be put in on the 18th, but security was eventually given according to the first notice. The notice first given and the security put in were found irregular and insufficient, the first notice having been rendered of no effect by means of the second — Held, that no action would lie against the sureties on the bond thus set aside. Smith v. F,(ian et al., 10 L. C. R. 2.S8, Q, B. 1860. 1.3. A practising attorney cannot become bail or surety in appeal. Lemelin v. Larue, 10 L. C. R. 190, Q. B. 1860. Contra : Fonrnier v. Cannon, 6 Q. L. R. 228, Q. B. 1861. ' U''\ ■ iti, :5| m :i '; ,;i|l m \ i ■ y ■MSS^^^- lUll! j^^^Bwi?! 14. In an action against the defendants as sureties in appeal — Held, that they were liable for the costs of appeal where the judgment of the c:)urt below, rendered in a hypothecary action, was affirmed, although a delainsement was made by the defendants before signification of the judg- 628 COURT OF queen's BENCH, ART. 1124. IIS [ ! 4= ft tif ment rendered in the court below, and although no absolute judgment was given in the court below for costs, but only a judgment condemning the defendants to pay the debt and costs unless they preferred to abandon the property. Finher v. Provencher et al., 13 L. C. R. KJO, C. C. 15. Where an opposant appealed and by petition sought to be allowed to give security for costs alone, though the execution of the judgment on the principal demand was thereby stayed— /fc/(<, that he must give security to answer the principal condemnation as well as that for costs. CoutUc v. lioae, 6 L. C. J. 186. Q. B. 1802 Contra : Liomi» v. Mohon'n Bank, 2 Q. B. R. 194, Q. B. 1880. 16. On appeal from a judgment dismissing an opposition, where security was given only for costs — Held, to be insufficient. Lampmm v, Wurtde, 3 Rev. do L6g. 107. K. B. 1847. 17. The issue and service of a writ of appeal does not stay execution unless security is given. Booth v. liastien et al. dt Bantien, 1 Legal News 130, S. C. 1878. 18. In case of appeal from a judgment ordering the appellant to render an account, security for coats is suflicient. Brook* et al. v. DalUmore, UO L. C. J. 176, Q. B. 1875. 19. And where the bond was completed in such case without justifi- cation and in the absence of the opiwsite party, who was present, how- ever, when the sureties presented themselves (contending that they ought to justify for a sufficient amount to recover the possible balance of ac- count), the court will not set aside the security bond as irregular or illegal, but will reserve to the respondent his right to attack the sol- vency of the sureties. Ibid. Lenoir v. Malette, 21 L. C. J. 84, Q. B. 20 Security in appeal cannot legally be given in the absence of the opposite party, and on a day different to that stated in the notice. Charhonneau v. Davis et al., 20 L. C. J. 167 Q. B. 1875. 21. When security in appeal is given by one person, he should give the designation and description of his real estate. Dawson v. Dejbsses £• Dawson, 1 Q. L. R. 121, Q. B. 1875. 22. A sum of money was attached in the hands of the tiers snisi by the plaintiff after judgment. The defendant pleaded that the judg- ment had been appealed from, and the appeal was still pending. Tlie plaintiff answered that the appeal was not allowed for want of security, anc" the plea was dismissed. Perrault v. Borgia tt Romain, 3 Rev. de L6g. 306, K. B. 1816. 23. A bond in appeal entered into before the issue of the writ of appeal is null and void. Burroughs v. Simpson, 11 L. C. R. 72, Q. B. 1860. APPEAL FROM SUPERIOR COURT, ART. 1124. 629 24. Where the appellant gave security only for the dtfjyem et dom- mage» — Held, to be irregular and defective, but that the court would order that the appollanta be permitted to proueeute the appeal on giving good and suihcient security within one month to answer the condemnation, and pay all such costs and damages us should be adjudged by the court. MJtrme v. lirault, 2 L. C. J. 303, Q. B. 1858. 25. No action on an appeal bond can be maintained until the appeal be determinevl. Kerr v. Monroe, 1 Rev. de L6g. 315, K. B. 1808. 26. Where ceiuain words were omitted from the surety bond in appeal, and motion was made to dismiss it on that ground — Held, that the Court of Appeal would allow the amendment of a bond which had been filed in the court of original jurisdiction in order to be allowed to pros- ecute the appeal. Taylor v. Molleur, 17 L. C. R. 37t>, Q. B. IHGT. 27. An application to enter security for three joint appellants will be refused and rejected if one of the parties disavow the proceedings and refuse to participate thoi'ein. Muir et al. v. iluir, 15 L. C. J. 71), Q. B. 1870. 28. An additional day's notice is not necessary for every fifteen miles of distance, when a party is about to give security in appeal. One hypothecary surety suffices. Where a party gives security for costs alone, the consent of the attorney that the judgment of the Court below be executed, will suflice. I'iola v. Hamel, 4 Q. L. R. 52, Q. B. 1877 ; Giiynon v. Hamel, Ibid. :% I (,,'> 29. An addition to money deposited as security was allowed on motion to reject appeal. Laceij v. Drapeau, 3 L. N. 11)4, Q. B. 1880. 30. A new surety may be substituted for one whose real estate is proved to be of less value than the amount of the bond. Morin v. Homier, 3 L. N. 309, Q. B. 1880. See Ilobert dit Samiir v. The Trust d> Loan Co., 3 L. N. 378, Q. B. 1880. ]\ 81. An appeal was dismissed on failure to put in new security within the delay allowed. Morin v. Homier. 3 L. N. 392, Q. B. 1880. 32. Sureties in appeal when the judgment has been confirmed, and the court has not granted leave to appeal to the Privy Council, are liable for the costs absolutely, and they have no right to annex a condition to a tender of such costs, that the money shall be returned in the event of the Privy Council granting a special application to appeal ; and the judgment being reversed on such appeal. Carter v. Ford et al., 3 L. N. 412, S. C. 1880 ; 4 L. N. 77, S. C. R. 1881. i::i 680 COURT OF QUKEN'8 bbnch, aut. 1124. i ?l' 83. DiHtraotioi) of coata Ih equal to u truuHfer duly Bi^niiiod. An attorney obtaiuiuj^ diHtraction ni coHtu can huo upon a bond ^iven to aecuru the payniont of such oontH, Fournier et al, v. Cuniiun et al,, Q. L. R. 228, Q. B. 18(11. 84. A party obtaining leave to appeal from an interlocutory jud^'niont forfeitB Buch ri^ht if the Hccurity re<]uired by law, be not ^iven within the delay iixed by the Court. Jirttnuau v. McVaJfrey, 1 Q. L. 11. H(J4, 1 (j. D. R. iiVl, 11 R. L. '2r,ii, Q. R. 1881. ;}(>. In caHO of an appeal by opposantB who claim an immovcahlo seized from a judgment, diHmiBMiiif^ their opposition, the a))pclhintB are not bouiid to j^ive security for the amount of plaintiff s judgment. Lioiiain et al. V. Mohan's Bank, 25 L. C. J. 220, Q. B. 1880. 86. On an appeal under the Insolvent Act, 187/), and ameudment, tlio security must bo put in within ei^ht days from the jud^^ment. OWfil! V. Murite, 20 L. C. J. 212, Q. R. 1K82. 89. A bond {^iven on a day other than that mentioned in the notice will not be rejected unleHS the adverse party has suffered from sue i irremi- larity, and complains of the insufliciency of the Hureties. Canutia Iuri'>it. Agency Co. v. lludon, 2 Q. B. R. 128, Q. B. 1880. 38. On appeal from a judgment dismissing a contestation of a report of distribution, the contestant is obliged to give security for costs only, Fan L. N. 412, Q. B. 1883. 40. If notice oi the time when security will be put in is not given to the adverse party, the appeal will be disniissed on motion. Lhn-Um v, Dorion, 3 Q. B. R. 387, Q. B. 1883. 41. Where the judgment a quo set aside a deed as null and void, und ordered defendant to cancel the registration tl.ereof within a certain delay, and that in default of his so doing, the judgment of the conit should effect the discharge of the registration, and tlic defendant uppeukd, Al'l'UAL KUOM 8UPK11IOU COUUT, AUTH. ir2i-ll*2(). (»;U bond K«ve» to OH et a/., Q. L. [)t niven witliiii an immoveablo ppellimtHiireiKit lj«meut. L/o)mis amendment, tl.i* il^nient. O'SciH in the notice will from sue » irrenu- H. Cainula Invest. ttion of a report of ty for costB only. ni-.pealB, tlu; Kuil'i- Llated on the vuluu |mvoto pay, Hhoulil be in the tern\s of ) limit its terniH to idoposit is Buftifier.t itB or othtrwisc, to inotury'B order will it will he rejected. It in is not sivcn to 1 motion. J'<';-i(-ii v, it wuB helil that he wan bound to f{ivo Hoeurity not only for the coHtH, but also (or tliH ofTeutual proHemition of the appeal and for tiie Hatinfaction of the judKment appealed from. McCord v. McCord, T) Ij. N. 21(J, H. C. C 1882. 1135* The security must be received before one of tbe judges or the prothonotary of the court in which the jud^,'- inent was rendered ; and such judge or prothonotary luay swear the sureties offered and ask them any pertinent questions with respect to their sutliciency. Ihul. ss. *2i), 41. 1. An apiHiUaut will not bo ordered to ^ive now Hecurity because one of the BureticB declares that he was really insolvent at the time he Hi^nod the bond, althon^h he then declared he was solvent, liiddell v. McArthiii; •22 L. C. J., g. B. 1877. 2. An appeal bond is inHufllclent if tho surety has not sworn that the immoveables which he liaw niort),'ajjud belong' to him. Stuart v. Smtt et a/., I L. C. R. 218, S. C. Isnu. 3. A security bond in appeal is not snflrtcient if based on real estate the title to whicli has not heeji regiHtorod. I'rim'c et ul. v. Moriii, 18 L. C. J. 208, g. IJ. 1871. 4. The security in appeal should be i^iven at the oflice of the prothono- tary of tho S. C. where the judgment was rendered, and not at the place where the court of apiwal sits. McGreevy v. Duiicct, 10 ii. L. 535, g. B, 1H7'J. 113ft* As soon as the sureties have been received, and the bond has been formally executed, it is the duty of the prothonotary of the court in which the judgment was ren- dered to make up and complete the record in the ease, ac- cording to the forms prescribed by the court of appeal, with a list of all the papers whicli form part of it, and a trans- cript of all tho entries in the registers, upon being paid his fees, charges and costs of transmission, to send them up to the clerk of appeals ; and such return shall be certified on the back of the writ by the judge or by the prothonotary. Ilnd. s. 31 ; 9th & 10th Kules of P. Q. B. 1. The return to a writ of appeal may be signed by one judge. Heiiey v. Holland, 1 L. C. R. 401, g. B. 1851. \Wm ■rh ■J? . . IS! ! i=; ■ iii;i WM -. ' .:\ I. 682 COURT OF quern'h uench, artb. 1126-1121). 2. Whom tho doluy in returniii|{ tho writ of upiwal wua oiiUHcd by thu noi^lect of the prothotiotury iitid not of thu party ap|)cllunt, tho latter may novortheloHS bo condoinnod to pay tlio coHti of the refliH>ndont'H motion to have tlie appeal dismifiiiod, hia rocoumo bein|{ by direct aotion againflt the prothonotary. I'errier v. Dillon, 3 L. 0. L. J, ICiO, Q. ]), 18((0. H. After the i)rothonotary has received acknowledKment of naretioa to A bond in ap^ical, and signed and Htamiied the Bumo, it is not oompeteut for him to refuHo to Hond up the record on tho ground that tho bond wuh executed by error and Burpriao. Mallftte v. Lvnoir, 20 L. C. J. 2!)8, Q, B. lH7(i. 4. The court may order tho immediate return of a writ of apt)eal, upon motion of roHpondont imprisoned on capias, Metacovict Nat. Hank v. Paine, 2 L. N. 410, Q. B. 1H7». 1137* If the writ of error or of appeal is not returned on the (lay fixed, the appellant may obtain a rule against the prothonotary in whose hands it is, ordering him to return it. The respondent in such ^ase cannot be condemned if he fail to appear ; and if the prothonotary is in default, a now writ must be issued and served in the same manner as the first, without lapse of the proceedings already had. Arch- amhnult v. Roy, dit Picot in appeal, 1851. 113M. The appellant and the respondent are both bound, if the writ is returned within the proper delay, to lile an appearance in the oliice of the clerk of appeals, before the expiration of the eight days next after the day fixed for the return o! the writ and record, on pain of being foreclosed. 11th Eule of P. Q. B. 1. Where two parties who have raised scparatn and distinct issues appeal jointly, by one and the same writ, the roBjioi dev' may, witl' ("cveof the court, filo separate appearances on eacli \t<-*ne. 'he Glen Brick Com- pany V. Walker <£• Shackel, 1(5 L. C. J. 257, Q. B. 1871. 1120. In default of the writ and the record being re- turned on the day fixed, the respondent, upon producing the cc^yy served upon him, may obtain judgment of non pros. APPKAL FROM HUl'KRIOU COURT, AUT. 112i). (!»8 tit :| and be digoharf^ed from the appeal, unlcsB the appellant proves diligence. 1. The non-prd'lnotion of t\w copy of the writ of apiH3til Horvud, in accordance with U'-!'. '' C P,, jn suiijiort of a motion for tum pinn., in not fatal wlion it ia establialiud tlmt the writ isBued And waH sorvvd, and tiiat the copy had boon lost, llunuij v. Detirl, V) L. (J. .t. M), (J. B. 1875. 2. Where tho apiwllant iiad only Kivon notice of uocurity and of apiHjal, and had no^locted to sorvo a copy of tho writ — llilil, ttiat a motion for nun pro». would Ho. Pfluijuln v. Lamothe, 8 11. L f»8, C. C. 1H71. 8. An api>earance for tho rcflpondont need not bo lilod in tho olork'a oince, to enable tho reapondunt to move to diHrniaa tho appeal for want of the return of the writ. Funiitm v. Tht; Ottawa and liideau Forwardiitu Co. et at., 20 L. C. J. 2», Q. H. 1875. 4. An appeal may bo rejected on motion, on the (»ronnd tlmt no ap))eal lies, notwithHtajuliii;{ tlmt tho record in incomplete, [irosidin^ it appuiira that the paiwra wantinj^ to conji)leto tho record cannot affect the quoBtion of the ri«ht of appeal. Dnhiic v. Champaijne, 18 L. C. J. 224. Q. B. 1871. Ti. But where tho defendant, after obtaining; leave to appeal, did not proceed with liia appeal, but failed and neglected to nue out a writ of apical, as ho waa bound to do in due courae — Held, that tl\e court would, at its next term, annul the order allowing audi appeal, lloiluumj v. Porter, 7 L. C. J. 301, Q. B. 18(;8. G. Whore a writ of appeal returnable on the twenty ifth of November, waa returned on the twenty-fourth of February following, and the respon- dent moved for the diamisaal of tho appeal aa beini; returned too late — Held, that the appeal must bo declared deserted and abandoned with coats, aavin^ the ri^ht of tho appellant to cauao another writ to iasue within the delay fixed by law. Jiouvier v. llfwes, 15 L. C. R. 405, Q. B. 18(55. 7. Held, also, that in default of payment of coats of the dismissed apoeal within tho delay fixed that tlie second appeal would be dismissed alho. Ibid. 8. Where tho appeal was returnable on the 19th December, IStiS, and was only returned tho following Juno, an exception by tho res- pondent filed on tho twenty -fifth of April was held not to bo too late, ai id «. motion to dismiss was rejected, and the respondent allowed to f.'oto enqultc on his exception. MenecUerv. Uauthier, 15 L. C. 11.474, Q. B. ' \''M 1 M 634 COUUT OF queen's BENCH, ART. 1130. Il!iO« [Unless the court otherwise orders, the respon- dent may, within eight days next after the period allowed for filing his appearance, set up by motion all grounds of demurrer, and all grounds of defence resulting from : 1. Informalities in the issuing or service of the writ ; 2. Insufficiency of the appeal bond ; 8. Non-existence or forfeiture of the right to proceed by error or appeal ; 4. Acquiescence in the judgment ; 5. The renunciation of the judgment in the court below.] C. S. L. C. c. 77, s. 5 ; McKaiigJitoii v. Desautels, in appeal. 1. The fact of one of several appellunts having paid part of the taxed costs of the judgment appealed from did not raise a presumption of acquiescence on his part, althou^jh he had made no reservation or protest at the time of payment. Woodman et al. v. Grenier, 16 L. C. R. 452, 2. The voluntary payment of a part of the judgment appealed from is an acquiescence, and the fact may be established by affidavit. Charhon- iteau V. Davis et al., 20 L. C. J. 107. 3. A respondent who has proceeded in appeal is supposed to have renounced all formal objections, llennj v. Holland, 1 L. C. R. 401, Q. B, 1851. 4. In an appeal from the Circuit Court — Held, that a motion to dismiss for want of sufficient security is not too late although a term has inter- vened since the appearance for the respondent, especially when the return of the clerk of the court is irregular. Ueaudet v. Proctor, 13 L. C. R. 450, Q. B. 1803. 5. Where th.e return of a writ of appeal was made on the first day of a term, and the respondent moved to reject the appeal, on the ground of insufficient security, on the tirst day of the following tei-m — Held, to be too late. McKay v. Simihson, 5 L. C. J. 20, Q. B. 18()0. 6. The sufiiciency of the security offered in appeal cannot be questioned by prehminary exception, and fcuch an e.xception will be dismissed on motion. Knowlton et al. v. Clarke et al., 13 L. C. R. 400, Q. B. 1803. 7. A garnishee made a petition to be relieved from tiie default regis- tered against him and the judgment rendered thereupon, and the court granted his application, but condemned him to pay all the costs. He moved for leave to appeal, but, meanwhile, so far conformed to the order as to make a new declaration. Held, that this did not constitute an acquiescence. Marqxds v. Vancortlaudt, 1 Legal News 278, Q. B. 18?S. the respon- ■iocl allowed grounds of from : the writ ; 3 proceed hy court below.] els, in appeal. art of tlie taxed presumption of •vation or protest ,. C. B. 452. ; appealed from is fidavit. Charbon- ^upposed to liave ,. C. R. 401, Q. B. motion to dismiss |a term Uas inter- iy when the return ,,, 13 L. C. 11. 400, . the first day of a on the ground of [term— Ht'/(/, to be Innot be questioned be dismissed on lo, Q. B. IBiio. thb default rct^is- lon, and the court (all the costs. He ]ormed to the order not constitute au |278, Q. B. 187H. APPEAL FKOM SUPERIOR COURT, ARTS. 1180-1133. 635 8. A security -bond in appeal duly signed and stamped cannot be set aside by the court on the ground that it was executed by error and surprise. Mallette v. Lenoir, 21 L. C. J. 84. 9. The Court of Queen's Bench cannot entertain a petition to have the security declared insufficient on the ground that the respondent has discovered since the completion of the bond that the securities were really insufficient at the time the bond was signed. Lapointe v. Faulkner, 22 L. C. J. 53, Q. B. 1877. 10. Respondent moved to have it declared that appellant had lost his right to appeal, security not having been put in within the time specified by the order. The court granted the motion as there was a question of ousts on the application for leave to appeal. McCaffrey v. Brunean, 3 L. N. 2'J8, Q. B. 1880. 11. Where a petition has been filed praying for the dismissal of an appeal on the ground of acquiescence, and affidavits are tiled in support of and against the application, of a contradictory character, leave will be granted to cross-examine the affiants. Hotte v. Andegruve dit Chainpuyiie, 25 L. C. J. 227, 2 Q. B. E. 127, Q. B. 1880. 12. An appeal will not be dismissed solely because the security was put in one day sooner than that stated in the notice served on the respondent, if no objection be made to the securities themselves. The Canada Invent. Co. v. Iludon, 25 L. C. J. 227, 2 Q. B. R. 128, Q. B. 1880. 13. The court will not reject an appeal because of a clerical error wliich causes no prejudice to the adverse party. McKenzie v. Turgeon, 2 Q. B. R. 243, Q. B. 1882. IISSI* The appellant may apply by motion for a reduc- tion of excessive security, if he has been obliged to give it. C. S. L. C. c. 77, s. 5 ; 27 G. III. c. 4, s. G. 1132- It both parties seek redress against the judg- ment, their cross-proceedings in error or in appeal may be joined. 11S3. The appellant must file his reasons of appeal or assignment of error within eight days after the return of the writ and record ; he cannot, however, be foreclosed fiom doing so until the expiration of another delay of six days, counting from the demand thereof. C. S. L. C. c. 77, s. 83; ir lluleof P., Q. B. ilpl 1 ; \m u-tr m ■m Mil HI 1 m I'j \ H ] i^HH 1' ,1 ;|H ; 686 COURT OF queen's BENCH, ARTS. 1138-1136. 1. In an insurance case carried from the Court of Appeal to the Privy Council, it was decided that objections might be raised in appeal which had not been raised in the court of original jurisdiction. Scott et al. V. The Pharnix Assurance Co., 8. R. 354, P. C. 1828. 2. When the appellants set up as one of their reasons that the 8. C. had had no jurisdiction, it was held that they had waived their right by non-pleader to question the jurisdiction. Gray et al, v. Dubuc, 2 Q. L. H. 234, Q. B. 1870. 3. The reasons of appeal should state that the interlocutory judgment appealed from is erroneous. Dunning et al, v. Girouard et al. [) B. L. 177, Q. B. 1877. 4. The appellant had filed a factum in review wherein he had not complained of certain irregularities in the procedure before the S. C. His reasons of appeal were based on these irregularities. He was held to have acquiesced in the judgment of the 8. C. and his appeal was dis- missed. Scroguy v. Gordon, 2 L. N. 350, Q. B. 1879. 5. A pjirty cannot produce in appeal a document ho had neglected to file in the court below. Dorian v. Champajine, 2 Q. B. R. 196, Q. B. 1H81. 1134* If, however, there are demurrers to the proceeding in appeal or error, the demand of reasons cannot be made before the judgment upon the demurrers. Dionne v. Ross, 3 L. N. 299, Q. 13. 1880. 1135. The respondent has a like delay of eight days to answer the reasons of appeal or error ; but he cannot be foreclosed from doing so until after another delay of four days from the demand of such answer. C. S. L. C. c. 77, s. 33; 13th Rule of P., Q. B. 1. The delay to answer reasons of appeal runs while the case is en ddibc're on a motion to quash the appeal. Phillips v. Sutherland, 19 L. C. J. 138, Q. B. 1875. 1136. The court, or a judge in vacation, upon application, of which the opposite party has had notice, may, for good cause shewn, prolong the delays fixed by the two preceding articles. C. S. L. C. c. 77, s. 33. APPEAL FROM SUPERIOR COURT, ARTS. 11S7-1141. 687 11 37* If the reasons in appeal or error are not filed within the delay prescribed, the respondent may demand the dismissal of the appeal or proceedings in error, with costs. Ibid. s. 32. 113S* If the respondent fails to file his answer within the delays prescribed, he is foreclosed from doing so, and the appellant may proceed as if the respondent ^ d not app'^ared. Ibid. s. 33. 1139. The provisions concerning election of domicile by parties and their advocates and attorneys in the Superior Court apply also in matters before the Court of Queen's Bench. Vide ante, arts. 84, 85. 1140. Within ten days after the filing of the respon- dent's answers, each party must file in the clerk's office a printed factum or case, and, in default of his doing so, the proceedings in appeal or error may be declared to have been abandoned with costs against the appellant if he is in default, or the case may be heard ex parte if the respondent is in default. Ibid. s. 49 ; 14th Rule of P., Q. B. 1. An appellant who has failed to file his factum within the delay prescribed by the rules of practice will be relieved from the consequences of his default by producing the factum when the respondent makes a motion to have the appeal dismissed, and on payment of costs. Dawson V. BcUe, 3 L. C. J. 256, Q. B. 1859. 1141. As soon as the answers are filed, either party may, after filing \\\^ factum or case, inscribe the case on the roll for hearing, after the delay for filing factums has expired, upon giving the opposite party at least two days' notice before the case is called. 15th Rule of P., Q. B. 'fy\W^ I'm:: 1 * !M' ^ mm I '■■m^idrnM 640 COURT OF queen's BENCH, ARTS. 1142-1148. within the description of any other case susceptible of appeal, it was held that as the defendant had set up an agreement on the part of the plaintiff to sell the property to him for $400 or thereabout, the action was appealable. Gould v. Sweet, 4 L. C. J. 18. 14. Under 20 Vict. cap. 44, sec. 60, no appeal lies from the Circuit Court in ejectment cases under £25 annual rent. Heran v. Lampnon, 10 L. C. R. 400, Q. B. 1860. 15. An action for 93.3.3 arrears of eem et rentes cannot be looked upon as appealable. De Bellefeuille et at. v. Mackay, 3 R. L. 33. 16. A hypothecary action for an amount less than 1J100, accompanied by conclusions to the effect that defendant be condemned to pay the debt unless he prefers to abandon the property, is appealable. Jiodier v. Hubert, 16 L. C. J. 41. 17. An action in declaration of a hypothec, being of the nature of a real action, is apnealable, and the evidence must be taken in writing on the demand of any of the parties to the suit. Dupont et al. v Grange, 10 L. C. J. 75, 10 L. C. R. 146, 1 L. C. L. J. 52. 18. An intervention which tends to deprive one of the parties of the possession and ownership of a prop ty rented by him, rendei's the whole case appealable. Kingdeij et ux. v. Nixoii d; Sutherland, 15 L. C. J. 271, B.C. 1143. The party api)ealing must, within fifteen days after the rendering of the judgment, but without being bound to give notice, give good and sufficient sureties, who must justify' their sufficiency to the satisfaction of the person receiving their security that he will prosecute the appeal, will answer the condemnation, and pay the costs, in the event of the judgment appealed from being confirmed. C. S. L. C. c. 77, s. 40. 1. The court will, on cause shown, prolong the delay for giving security on an appeal from the Circuit Court. Berriau v. McCorkill, 13 L. C. R. 480, Q. B. 1863 ; Montreal Cotton Co. v. Corp. of Valleyfield, 2 L. N. 338, 9 R. L. 551, Q. B. 1879. 2. Where bail was put in by two sureties upon appeal from the Circuit Court to the Court of Queen's Bench — Held, to be unnecessary that either of such sureties should declare that he was the proprietor of real estate to the value of £50 over and above all charges, as in the case of one surety only. Dupont et al. v. Grange, 15 L. C. R. 36, Q. B. 1864. APPEALH FROM CIUCUIT COURT, ART. 1143. 641 8. Security in appeal from the Circuit Court under 12 Vict. cap. 88, 800. 54, ia validly given by two soreties justifying on real estate without defloribing it. Lynch v. Blanchet, L. C. R. 149, S. C. 1866. 4. But held, in a similar case, decided the following month, that the real estate must be described. Hitclicoek v. Moiiette, (> L. C. B. 150, H. C. 1850. T). On appeal from the Circuit Court it is not necessary where two sureties sign the bond that they should declare that they are proprietors of real property of the value of £50 over and above all incumbrances, such declaration being only necessary where but one surety signs. Hearn v. LampgoH, 10 L. C. R. 400, (). B. 18(50. (>. Where the failure to produce the petition for leave to appeal wa') due to the fault of the attorney and not of the ofTicer of the court, leave to file the same would not be granted after the lapsd of six months. Simard v. Fraser, 1 Legal News, l.SO, Q. B. 1878. 7. An api)ellant cannot join to an appeal from a judgment in review an ap^ieal from the original judgment in the Circuit Court of which he had not complained within the delay fixed by C. C. P. 1143. Loganv. Kilgour, n Q. B. R. 336, Q. B. 1883. 8. The appellant from a judgment dismissing his contestation of a report of distribution and maintaining the collocation, is bound to give liecurity for costs only. Costs on the motion to dismiss the appeal were not allowed appellant because the word damages had been struck out of the bond. Pangman v. Buchanan, 27 L. C. J. 311, Q. B. 1883. •J. In order to be admitted to give security after the fifteen days, the party must show not only that the failure to give security in time was due to no fault attributable to him ; but that he persisted in his intention to appeal at the earliest opportunity. Duquette v. Brochu, 3 L. N. 195, Q. B. 1880. 10. Where no security has been put in within the delay required, the api)eal must be dismissed. Carter v. Lalanne, 24 L. C. J. 160, Q. B. 1879. 11. The bond must conform to 1143 C. C. P., and a bond to the effect only that the surety will pay 9200 in case appellant should fail to prose- cute the appeal is not sufficieut. Fulton v. Bilangeret al., 2 Q. B. R. 107, (J. B. 1881. 12. The sureties cannot ask to be discharged before judgment, exopt in the cases provided by art. 1935 C. C. Sig'htingale v. Soc. de Com. St. JaequtM, 2 Q. B. R. 193, Q. B. 1881. 41 F. c. c. p. i 042 COURT OF queen's bench, arth. 1144-1146. 1144. The Bv-curity may be given either before a judge of the Court of Queen's Bench or the cierk of appeals, or else before a judge of the Superior Court, or the clerk of the Circuit Court, at the place where the judgment was rendered, and the bond remains deposited among the records of the court where it was given. Ibid. s. 41. 1. The court may allow a renewal of the security if it bo irregularly made. Montreal Cotton Co. v. The Corp. of Snlabernj. 5) R. L. T)/)!, Q. h. 1875). 2. The security bond may be ameuded by supplying the description of the real estate on which the surety justiiied, which had been omitted. Ibid. 24, L. C. J. m), Q. B. 187». 8. In cases of appeal from the Circuit Court the copy of theapi)eal bond to bo served must be certified by the clerk of the court in whose office the bond is filed, under 20th Vict. cap. 44, sec. Ci't, and not by the attorney of the appellant. Pentlaiul ct If within the fifteen days, the appellant liles with the clerk of either court a declaration in writing that he does not object to the execution of the judgment, or if he deposits the amount thereof in the hands of the clerk of appeals or clerk of the Circuit Court, he need only give security for the costs in appeal and whatever damages may be awarded. Ibid. s. 42. L46. efore a judge if appeals, or the clerk of adgment was 1 among the . 8. 41. ' it be irregularly )B. L. r>51, Q.B. the description of hftcl been omitted. of theiiinieal^""^ in whoso oiRce the by the iittornoy of Q. B. !«■'«• e owner of real (liars, over and ^ving the excep- ■sons authorised mister any oath ) L. C. R. 200. ,ftl from the Circuit u the bail bond is r,B. ..ould be declared to ibing the property of Rampre, lOL-CK. fc. B. 18«». APPEALS FROM CIRCUIT COURT, ARTS. 1147-1148. 64H 11 47* In the case of the preceding artic' the pro- visions of article 1124, also apply. Ibid. s. 43. 1148. The appeal is brought by a petition, stating succinctly the grounds of appeal, and that the security has been given, and praying for the reversal of the judgment, and the rendering of such judgment as ought to have been rendered. This petition and a notice of the day on which it will be presented, must, witbin twenty-five days from the render- ing of the judgment, be served upon the opposite party personally, or at his domicile, or upon his attorney ad litem, together with a co^ry of the appeal-bond, certified by the clerk with whom it is deposited. Ibid. s. 44. 1. An ap^ieal from the Circuit Court will be dismissed when the [letition in api)eal contains no special reasons. MailU v. Chapleau, L. C. R. 47fi, S. C. lS5r>. 2. On aJi appeal from the Circuit Court— Held, that where the case rcHts on evidence and the evidence is doubtful, the court will not disturb tlie judf^ment. I'outn' v. Chapdi-laine, C> L. C. K. 488, S. C. isr.j;. 3. Where the delay of twent;'-fivc days allowed by law for the service of the copy of petition and notice expires on a legal holiday, the service may be made on the following day, and it is no valid objection that nervice of such copy had not been made upon the clerk of the Circuit Court, nor will an appeal be dismissed in consequence of such omission, nor on the ground that the copy served on the attorney of the lespondent bears date previously to the rendering of the judgment appealed from. Dean V. .hirkmiu, r, L. C. R. 104, 8. C. ISfV,. 4. The parties, plaintiff and defendant, having proceeded in the Circuit Court in an appealable case as if the case were non-appealable, and judgment liav.'wg been rendered in favour of the plaintiff — Held, upon an appeal instituted by the defendant on the ground that tlie proceedings were irregular, the evidence not being in writing and no articulation of facts or inscription for enqu6te or for hearing on the merits having been made, that the court would not disturb tlie judgment of the court below, OKjood V. Culleii, 11 L. C. R. 282, Q. B. 18(50. 5. When the petition was given to a bailiff often employed in the office of the clerk, but who was not an officer of the C. C, and he, instead of tiling it in the court, forwarded it to the clerk of appeals, a motion to ;r ,1 m ■ V 1 ' m\ l^H ' 'li'' it^l III '''s ^^H . i '^1 1 ^H 1 H, 1 ' . i'i.i 1 '' ^ 1 ■ : 7') III ■ ■'[^m ■ ' /'■ri:4| ;,] •i 1 .■■ ■* M '■, 1, 'l| ■ i y^ ^'i : :.^f; ^riP' 'fm ■ !''■' \mt ■■•*ll -';;,:il |J| i \M 1 v% i'IM ••' ?■'[' 1 ' mill ' \ v;-''ffi|jR . 1 '^ TiIki I'' .111* , ,' '|ii' ^ ^11 ' j> .itStiiii fi mm , . iii^iffliBI ■•■■;:,, |iJ I lilnl ]■ Will i|i|nH ■!' ^11 li I |«ii 1 1 B ■'li ■ 644 COURT OF queesn's bench, arts. 1148-1149. reject the appeal booauae the petition had not been fllod within the twenty-five days wan diumisaod, with oosta against ap|)ellant. Giiimmt Y. Methot, 3 L. N. 1««, Q. B. 1880. 1141l« Within the same delay of twenty-five days, the appellant must file his petition and notice and the return of service with the clerk of the Circuit Court, together with a certificate from the clerk of appeals, stating that security has heen given if the hond he in the hands of that officer ; and the clerk of the Circuit Court must give the appellant a certificate of such filing, for the purpose of proving, when requisite, that the appeal has heen instituted. The clerk of the Circuit Court is, moreover, hound to certify, under his hand and the seal of the Circuit Court, and to transmit to the clerk of appeals at the proper place, the said petition and the record in the case with a transcript of the entries contained in the registeio ^^f the Circuit Court in relation to such case. Ihid. s. 45. Fpna *'' ■' 'hwmm 1. In cases of appeal from the Circuit Court the o>i^' jnal petition in appeal, notice etc., must be filed in the office of the clerk of the Circuit Court within twenty-five days f>"^ni the rendering of the judgment appealed from, otherwise the appeal will be dismissed on motion. tfcGilliu et al. v. Pearce et a!., « L. C. R. 114, Q. B. 1858. 2. The delay of twenty-five days mentioned in 1149 C. C. P., within which a i)etitiou in appeal from u judgment of the Circuit Court must 1)» tiled, is final and absolute. Lednc v. Oufllet, 2 U. L. . 1150. No petition in recusation is necessary if the cause of incompetency appears on the face of the record. Ibid. a. 11. • llOO. Every leave of absence for more than two months granted to any judge of the Court of Queen's Bench, is notified to the clerk of appeals by a letter from the Provin- cial Secretary, whicli must be deposited among the records of the court and entered in the register thereof. Ibid. a. 1'2. fc WJ. m 1161> When a judge of the Court of Queen's Bench is disqualified or incompetent to sit in a case, or is suspended from office, or absent from the province, or on leave, the clerk of appeals, when thereto required, must record the w "^1 G48 OURT OF (JUEEN's BENCH, ARTS. 1 161-1161. fact in the register, and, upon the order of a judge of the court, must notify the chief justice of the Superior Court. Ibid. 88. 10, 11. 1163. The judges of the Superior Court rephice those of the Court of Queen's Bench, in all cases of incompetency, absence, suspension, or leave of al)sence, and upon the chief justice of the Superior Court communicating with the other judges of the said court, it is arranged between tbem which of them individually will replace any particular judge of the Court of Queen's Bench, who is unable to sit in the case. The foregoing provisions as well as those of the preceding article api^ly likewise in the case of the death, absence, disqualification or incompetency of the judge thus appointed to replace another. Ibid. ss. 10, 11. 1. When two judges ad hoc liad heard the case and ordered a re-hearinf^, and subsequently the jJidges wliose place they filled ceased to form part of the court, and were replaced by the appointment of two other judf^es— Held, although the judges of the court were now all competent to hear the case, that the judges ad hoc who sat at the first hearing should continue to form part of the court at the re-hearin;,'. 'ihf Mayor, etc. of Montreal v. Dntminoud, 18 L. C. J. 7ath, ahsence, ihus appointed (lered a re-hcarinj;, ased to form part two other judt^es- coiuyeteut to hear FBt lieariu}? should The M(iyor, etc. of ill arpoiuted aubsc- Ihitl. , the expiration nt, do not affect him, as regardH iiizance, nor are e of the Court of tent in the case. ige has not heard eplaced may take ent therein. 29 GENERAL PROVISIONS, ARTS. 1165-1166. 649 1165* If the record in the case is incomplete, either by reason of the absence of any document, or of the inobserv- ance of some important formality, the Court of Appeals may, upon the suggestion of either party, order the court below to perfect the record, and this is done by an order in the form of a writ issuing in the name of the sovereign, addressed to the judges of the court below, commanding them to do what is necessary, and to make a duly certified return thereof. Ibid. s. 6. UOO* Interventions may take place in appeal with the leave of the court, and so may also other incidental proceed- ings, such as petitions for continuance, disavowals, changes of attorney, and like proceedings, according to the form- alities prescribed by the court. Ibid. 1. Where a disavowal was raised in a case pendiiij^ before the Court of Appeal — //<'W, that the court could order an eu(iu<3te on the issne raised. The CttrJ et (tl. of the Pari,^h of St. Anne de I'arfnneK v. The IloirKin Catholic liishop of Montreal. 1 R. L. 127, Q. B. 18()1. 'i. The Court of Appeal may order a third party interested in the issue to bo called into the case, and the record to be sent to the court below for that purpose. Jouhert et cir. v. ll(i; Judgment cannot be rendered in appeal unless at least three judges concur therein, and judgment may be rendered even in the absence of one judge when the case has been heard before the five judges. C. S. L. C. c. 77, ss. 9, 14 ; 25 V. c. 10, s. 1. [The provisions relative to judgments, contained in articles 503 and 504 apply in similar cases as regards judgments to be rendered by the Court of Queen's Bench. Whenever a case has been heard by the full court or by a quorum of judges, and at least three of the judges who heard it are present in court and are ready to give judg- ment therein, then if any judge who heard the cause and GENERAL PROVISIONS, ARTS. 1170-1174. 651 would be competent to sit in judgment therein, be prevented by removal to another court, sickness or other cause from being present, but has addressed a letter to the clerk of the court, containing his decision and signed by him, or hab, in testimony of his concurrence therein, signed a written decision, drawn up to be delivered, and delivered by any other judge, such judge shall be deemed to be present as regards such judgment ; and the decision, so transmitted and signed by him, has the same efTcct as if delivered and con- curred in by him in oi:en court.] 1. In questions purely of practice, the Court of Appeal will not, as a rule, disturb the judgment of the court below. Perry v. l)e Beaujeu et, al., 14 L. C. J. 334, Q. B. 1869. 1171. If by reason of the absence, leave of absence, disqualification, 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. S. L. C. c. 77, s. 9. 1173. The court may adjourn to any day in vacation, and thence from day to day, for the purpose of rendering judgment. Ihid. s. 20, § 2. 1173* Judgment may be rendered by the court at another place, where its sittings are held, than that where the case was heard, if the judges are of opinion that otherwise the parties will be exposed to unnecessary delay ; but in such case the court in term, or a majority of the judges in vaca- tion, orders the clerk to give the parties interested notice at least six days before that on which judgment is to bo rendered, and the judgment is nevertheless entered and registered at the place where judgment would have ])eeu rendered in the ordinary course. 25 V. c. 10, ss. 4, 5. 1174. Every judgment in appeal or error must contain a summary statement of the points of fact and of law in the case, and the reasons upon which it is founded, with the if .V ' If, 1 ' *■ 'i-m ' ■ vim 062 COURT OF queen's BENCH, ARTS. 1174-1175. names of the judges who concurred therein and of those who dissented therefrom, and must adjudicate upon th« costs. C. S. L. C. c. 77, s. 36. 1. In an action for the balance of the price of certain lands sold by the plaintiff, the defendant pleaded fear of eviction, and the court below ordered the plaintiff to give good and sufficient security within one month — Held, on appeal by plaintiff, that the court had power to reform such judgment, though respondent merely asked for its confirmation, and to dismiss the action purely and simply. Dorion v. Hyde et «/., 12 L. C. .T. 4i», Q. B. 18(i8. 2. Where the plaintiff prayed by his action for £r)0 4b., and, by error, judgment was entered for £54 4s., and defendant appealed on that and other grounds — Held, that the court could correct the error and at tho same time conlirm the judgment in other respects with costs against the appellant. I'Crjf v. Sponza, (5 L. C. f7, 183, Q. B. 1858. H. Wherti the parties, after appeal had been had, consented that tha judgment should be reversed — Hfld, that, notwithstanding such consent, the court was bound to contirm the judgment if the record showed that the judgment in question was well founded, and it was actually confirmed. McAndrews v. Jtowan, H R. L. 4;i<.», Q. B. 1871. 4. Where, since the appeal was taken, respondent desisted from part of the judgment, and offered to pay the costs of appeal to date, and where the judgment was confirmed for that part from which he had not desisted, the court condemned appellant to pay all the costs incurred since the discontinuance. Chaloner v. Poitraa, 10 R. L. 41M), Q. B. 1879. 5. Where a clerical error occurred in a judgnier.t ic was corrected by ordering a subsequent entry in the register, doldring v. The Bank of HocheUttja, 2 L. N. 410, Q. B. 1879. 1I7*"S* The costs are taxed by the clerk of appeuLs, saving a revision of such taxation by a judge within six months, either in term or out of term, after sufficient notice <:jiven to the opposite party, but such revision cannot pre- vent or stay execution, and the decision of the judge in that behalf has the same effect as a judgment of the court. 25 V. c. 10, 8. 6. 1. Where a party knowing of irregularities in the proceedings befoi-s the lower court failed to urge them there, but urged them before tb« GENERAL PROVISIONS, ARTS. 1176-1177. (J6a Court of Appeal and succeeded there— Held, that he could not be allowed the coBts of his appeal. Daigle v. Rhnhal, 15 L. C. R. 138, Q. B. 18fi4. 2. The proceedings on a second appeal will be suspended until the costs ill a previous appeal are paid, and if such costs be not paid on a day certain, the second appeal will be dismissed with costs, thmvior v. /iVvn s, 12 L. C. J. 25)1 and 15 L, C. R. 4()5, Q. B. 1863. ;{. And held, also, that a rule to revise the taxation of a lull of costs in appeal will be ordered to be struck from the roll and the bill laid before one of the judges in appeal. Ihid, 4. A party is entitled to have his costs for printinj,' in appeal taxed at the rate of two dollars per page, although he may liave i)aid less per page to his printer. Oijilvy et id. v. Jone», 17 L. C. J. 2"), Q. B. 1873. 5. Where the counsel for respondent omitted to move for distraction of costs in appeal until the following term — Held, that distraction would nevertheless be granted, and it was for the api)ellant to prove that the respondent had received the costs personally, if such were the case. The Water Workn Co. of Three liiverit v. Dottaler, 18 L. C. J. I'M), Q. B. 1874. (>, A motion made in appeal for distraction of costs in the court below will be granted. Convene v. Clark, 12 L. C. R. 402, Q. B. 18*12. 7. An appellant, who by cross ap^ieal in another case might have had the same point decided, will not be allowed the costs of a separate appeal to the Privy Council. Gu. 3. The rules of practice of a court are within its control, and it may relax them when a rigid enforcement of them would operate an absolute injustice. Eosk v. Scott, 9 L. C. R. 270, Q. B. 1859. 4. Plaintiff moved to have part of the record remitted to the court below, in order to allow him to proceed on the main action, the ap])eal being from a judgment on a motion to reject a nainie arrH, and offered to substitute copies of the papers remitted. Motion refused on the ground of the difficulty of establishing a uniform rule on the subject. Milh v. Weare, 2 L. N. 202, Q. B. 1879. 5. The court may order a record to be sent back to the court below, in order that a clerical error in the registering of the judgment a quo may be corrected. Snmlberfl v. Wilder, 7 L. N. 1(58, Q. B. 1884. G. The court on motion to compel a renewal of security, order id the surety to api^ear to answer such questions as to his solvency that might be put, and on his default, new security was ordered. Wright et a'., v. Fo»ter, 2 L. N. 394, Q. B. 1879. 7. Jurisdiction of the Court of Queen's Bench to issue a writ of injunc- tion. Mnllette v. City of Montreal, 2 L. N. 379, Q. B. C. 1879. APPEALS TO HER MAJESTY, ART. 1178. 655 CHAPTER FOURTH. OF APPEALS TO HER MAJESTY. I vl . ^a 117iH. An appeal lies to her Majesty in the Privy Council from final judgments rendered in appeal or error by the Court of Queen's Bench : 1. In all cases where the matter in dispute relates to any fee of office, duty, rents, revenue, or any sum of money payable to Her Majesty ; 2. In cases concerning titles to lands or tenements, annual rents and other matters by which the rights in future of p** ties may be affected ; 3. In all other cases wherein the matter in dispute exceeds the sura or value of five hundred pounds sterling. C. S. L. C. c. 77, 8. 52. See 37 Vict. c. 6, s. 2 (Que.), under art 494. •-H.! i /:-t' 1. There ia uo appeal from the Queen's Bench to the Privy Council in a matter of Prohibition. O'Farrell v. Branmrd et al. 4 Q. L. R. 214, Q. B. 1878. 2. Leave to ap^ieal to the Privy Council will not be granted from a judgment which confirmed a judgment of the court below dismissing an inscription pnfau.c. Darlhuj v. T •mpli'ton, IS) L. C. J. 10.'), Q. B. 3. Where the Court of Appeal rendered judgment confirming a judgment of the Superior Court, which quashed a writ of uuuulaviiix addressed to a commissioner appointed to inquire into the co nduct of a certain justice of the peace, requiring him to do things which he was not legally bound to do in the course of such inquiry — Held, that from such judgment there was no appeal to the Privy Council. lielleville v. Doiivet, 1 Q. L. R. 250, Q. B. ISTo. 4. Interest accrued since the action was brought, cannot be computed in determining the right of .' ^.peal. Stanton v. Home Iitmranfe Co., 2 L. N. 314, Q. B. 1879. ii'-'»ii ■■;k;' m W'H OuO APPEALS TO HER MAJESTY, ART. 1178. ft. Leave wub ii^ranted to appeal to the P. C. from a judgment quashiiif; a i>atitioti to set aside a capias, it being left to the P. G. to decide whether an appeal lies from such judgment. Hochelaga Hank. v. Qoldring, 2 L, N. •282, Q. B. 187«. (i. No appeal lies to the Supreme Court from a final judgment of the Q. B. in a proceeding under the Insolvent Act, since the passing of 10 Vict. c. 27, s. 2H (('a.). liorrowinan et al. v. Anj/m ct oL, 23 L. 0. J. f)!). Q. B, C. 1871». Thf Bank of Toronto v. Hi'iulemm, Ihid. » R, L. 025. 7. Nor to the Privy Council, liault et nl. v. Robertmn ; Dupiiin v. Vmhinif, 23 L. (!. J. .W, Q. B. 187H. lienny et ol. v. Mont, 28 L. C. J. 2(;j. Q. B. 187'J. H. In cases of mandamus the appeal is restricted under sec. 23 of tlie Hup. Ct. Act by the application of sec. 11 to decisionsof " the highest court of final resort " in the Province, and an appeal will not lie from any court in the P. of Qir.ibeo, except the Court of Queen's Bench. Danjou v. kfarquis, 3 8. C. Rep. 251, 1879. U. Can the Dominion Parliament give an appeal in a case in which thu legislature of u Province has expressly denied it ? Ibid, 10. An appeal does not lie from the Court of Review to the Supreiii* Court directly. Macdonald v. Abbott, 3 8. C. Rep. 278, 1879. 11. The Q. B. will refuse an appeal to the P. C. from a judgment rejecting an appeal to the Q. B. as it has no jurisdiction in the matter. Angem v. Murray, 3 L. N. 308, Q. B. 1880. 12. An appeal will not be granted to the P. C. from a decision of tim Q. B. maintaining an action to recover an amount of assessmentH illegally exacted where the matter in dispute does not exceed £500 •terling. The fact that the roll under which the assessments wer« collected might exist for three years, does not bring the case under C. C. P. 1178, especially wlien the total amount for the three years would he under £500 sterling. Valoiit v. C00 Htorling, aneal in such cases. Mamis v. Allnirc, (» L. C. J. &>>, V. C. 1802. 23. The Court of Queen's Bench has no power to grant an appeal to the Privy Council when the amount is inider £500, and that notwith- standing the action is for overdue instalments of money, such cases not coming under 117S C. C. P. SanvaiicnH v. Gaitlhkr, .'» R. L. 002, P. C. 1874. 24. But wheiJ such appeal has been granted, and the parties have both appeared and pleaded their case, the Privy Council may grant leave to suspend the case in order to allow the appellant time to present a special application for appeal. Ibid. 26. Where the judgment debt was for a sum less than £")00 sterling but the judgment itself determined the right of the appellants, tiers saiais, to property amounting in value to .tl.COO sterling — Held, that, iu deter- mining the value of tlie matter in dispute upon which the right of appeal depends, the correct course is to regard the judgment as it affects the interests of the party prejudiced by it, and who seeks to relieve himself from it by appeal ; and that, in the case in question, tho larger amount must govern the right of appeal. JUarj'urlanc v. LecUiire et al., L. C. J. 170, P. C. 18(52 ; 12 L. C. R. 154. 20. An appeal may be liad to the Privy Council when the amount involved in the controversy exceeds t.'iOO sterling, though the amount actually demanded in the declaration be less than £500. Bunting v. llihhard, 1 L. C. L. J. 60, Q. B. 1865. 27. No appeal lies from the judgment of a court granting a now trial on the ground that the verdict was against the weight of evidence, that being a matter of discretion. Boak v. The Merchants' M. Im. Co., 1 S. C. Rep. 110. 28. An appeal does not lie to the Privy Council from a judgment of the Court of Appeal, reversing a judgment of the court belovr, by which the appellant's action was dismissed on demurrer. Simard v. "owmend, 6 L. C. R. 147, Q. B. 1856. APPEALS TO IIRII MAJKHTY, ART. 1178. 659 ' iharitablo iuBti- iipt, action waR of money and lofemltintB, that, III. cup. t>, sec. ourt of Quecn'B ;o clooH not oxcecd )o of office, duty, ajesty, or to ivny attera and thinKs ouncil, under the ition, allow apiwal li'2. rant an appeal to ind that notwith- ay, Buch caBoa not ; 11. L. C02, P. C. } particB have both may tyrant leave to to preaent a apecial ,11 iJ.'iOO aterlins but ants, tiers s(i isi'.i, to /(/, that, in deter- the right of appeal ut an it affects the to relieve himaclf the larger amount ire et u/., L. C. J. when the amount ihough the amount £500. Ihmting v. ranting a now trial it of evidence, that I' M. Im. Co., 1 S. C. Im a judgment of the Velow, oy which the \rd V. "oionseiid, 6 L. 29. The verdict of a apecial jury awarded the plaintiff D7,000 damagen for injuries Buntained by a railway aci-ident, and judgment waa rendered liy tilt! Huperior (!ourt in accordaiu o with the viMdict. Tlio judgment liaving been roveraed, and a new trial ordoied by the Queen'a Uench in appeal, the plaintiff moved for leave to appeal to the Privy (^oimcil. The (^hieeii'H Bench rejected the application on the ground that the judgment being interlocutory, was not auaceptiblo of appeal, and the Privy Council conaidered that though thia waa an interlocutory judgment, It waa of Huch a nature that an appeal aliould bo allowed, l.nmhkin v. The South- Hattern It. It. Co., 1 L. N. r,2, P. C. 1877; 22 L. C. J. 21. ■SO. There ia no appeal to the Privy (Jouncil from an interlocutory judgment which baa gone through appeal. Lacroi.t v. Moreau, IB L. C. R. 185 A m L. C. U. IHO, Q. B. ISC.r). 31. Held, diamisaing a motion for leave to appeal to the Privy Council, that no such appeal lies in caaea of quo wairaiito. Paratid v. (lunu/, 17 L. C. It. 357, Q. B. 18)57. 32. An application waa made on the laat day of the appeal term for leave to appeal to the Privy Council from a judgment rendered live daya prevloualy — llelil, that the motion came too late. Mull in v. Arehnnihault, ;< L. C. L. J. 117, Q. B. 18(57. 3.'!. The (!ourt of Queen'a Bench has diacretionary power to allow an appeal to the Supreme Court after the delay mentioned by the Statute. CirerhiU v. nohillard, 21 L. C. 74, Q. B. 187«. 31. The penalty in a security bond on an appeal to the Supreme Court which atipulatea that the penalty ahould become due and payable in case the appellant failed to proaecnto his appeal and the judgment appealed from be aflirmed, cannot be recovered when the appellant, after giving security, diacontinuea his appeal. The Soiith-Kaatern li. W. Co. v. Lmnb- Mn et (il., 22 L. C. J. 224, S, C. 1877. 35. A party, joint appellant with others, haa a right to disavow and refuBo to participate in any proceeding to appeal to Her Majesty in Privy Coimcil. Muir et al. v. Muiv, l.'i L. C. J. 79, Q. B. 1871. 3G. Where a party appealing to the Privy Council had given security for coats only, and had filed a declaration that he had no objection to execution going against him for the condemnation money, the court will not allow the record to be remitted to the court below in order to enforce such execution. Vainchund et al. v. Hudon et al., 15 L. C. J. 112, Q. B. 1870. 37. After an appeal has been allowed to the Privy Council the court cannot set aside the bail bond for alleged irregularities, and dismiss the appeal. Ibid, n Uv\ ' .1 I '.ii'» ;i,;'ii 'Ml iP iU I -■■■ .■* ? ,f %■■ 660 Ai'PKALs TO iieu majkhty, arts. 1178 1179. 38. Whore leave to appeal to the I'rivy Council had boon granted, ami application wna made by appellant that u portion of the record said to be immaterial bo omitted from the trauHoript— //«■/ judgment has been signed, entered or pronounced previous to the 11th January, 1876. Taylor v. The Queen, 1 8. C. Rep. 05. 43. Leave to appeal to tho Privy Council will be granted although tho opposite i>arty has already obtained leave to ap()eal to tho Supreme Court. The City of Montreal v. Devlin dt i contra. 1 Legal News 151, Q. H, 1878. 44. An api)eal lies directly to the Supreme Court from a judgment of the Superior Court in Review in cases not under 92,000 where tho judgment having been conflrmed in review, no appeal lies to tho Court of Queen's Bench. Abbott v. MacDonald, 21 L. C. J. 311, S. C. R. 1877. 1170. Nevertheless, the execution of a judgment of the Court of Queen's Bench cannot be prevented or stayed, unless the party aggrieved gives good and sufficient sureties, within the delay fixed by the court, that he will effectually 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 may be received before one of the judges of the Court of Queen's Bench, and the sureties are not hound to justify their solvency upon real estate. Ibid. s. 52. I( i A] ' >l APPEALS TO lIEn MAJESTY, ART. 1179. 661 34 Vict. c. 4, (Que.) : 11. Art 1179 in amended by HtrikiiiK out tlio foUowiiiK wordH at tlio end of the Hiiid article : " And the HuruticM uro not bound to juHtify their golvoncy upon real cHtate,"und by HubHtif utiii^ and addin>,'th« following: " The Hurotied juHtify their Bolvency upon the real t'Htate which i» deacribed in the bail bond. One surety Hufllc«iH, if he in the owner of rea estate whioh he describoB, provided tliat the value of such real estate is equal to the amount of the neourity, over and above all charges and hypotheca. The jud({e who receives such security may order, either on demand or otherwise, the production of the rcgibtrar's certificate, the valuation rolls and any other documents for the purpose of security, and is bound to put such (juostions as he deems advisible to the sureties, and such ({uestions and the answers thereto may be taken down in writing;- Nevertheless the party appellant may exempt himself from furni8hinj» such security, by depositinij an amount o(jual to that required for the security cither in money, in bonds of tlie Dc linion, or of the Trovince of Quebec, or in corporation debentures, and si ch moneys, bonds or debentures are deposited either with the Clerk of the Court of Queen's Bench, or with the Sheriff, as the judge may direct, " 1. On a 'motion to compel the appellant to put in now security in ftppeal, one of the parties bein^ insolvent and the other having left the province — Held, that an appeal to the Privy Council having been allowed, an order for now security should be granted, but the court cannot dismiss the appeal in case sucli new security is not put in. Johiuon v. Connolly 1« L. C. J. 100, Q B. 1871. 2. Where appeal was allowed to the Privy Council, and £100 was ordered to be paid as security for costs— //*■/(/, on petition of respondent, that on account of the groat length of tlio transcript of the proceedings, tlie deposit for security might be ordered to bo increased, Bottwell v, Kilhorn et <(/., 7 L. C. J. 150, & 12 L. C. K. 161, P. C. 18()0. .3. And where an appeal was allowed to the Privy Council, and it was shown that the interest added to the principal sum recovered on afire insurance policy exceeded Jt^OO storling, the appeal was granted upon (Uposit of Jt'200 as security for costs. The Quebec Fire Insiii'tince Company V. Anderson et «/., 7 L. C. J. 150, P. C. 18(50. 4. The respondents served a notice ui)on the appellants that they would put in security for appeal to the Privy Council on the IHth of August, in the judges' chambers, in the court house. Security was not put in on that day, but notice was given later, on the Satunlay, that security v/ould be entered in chambers on Monday. Security was put in that (lay, not in chambers, but in the judges house, one of the parties signing the bond in the forenoon and the other in the afternoon — Held, on motion if '.iil n t I t ;. 11" :.l VI •m fi w t- t 1- S m0 662 APPEALS TO HER MAJESTY, ARTS. 1179-1181. to set aside the bond for irregularity and want of sufficient notice, that the bond must remain, but allowing the parties moving to make such objection to the sufficiency of the security as they might legally have made when such security was put in. Gibb et al. v. The Beacon Fire and Life Amimnce Co., 10 L, C. R. 402, Q. B. 1860. 5. A judge of the Court of Queen's Bench has power in chambers to extend the delay for giving security on an appeal to the Privy Council beyond the delay ordered by the court whenever he is seized of the matter prior to the expiration of such delay. 'Tlie Mayor, dtc. of Montreal v. Hubert et al., 21 L. C. J. 85, Q. B. 1877. 6. When a deposit has been made as security on an appeal to the Privy Council, and the judgment appealed from is confirmed in the Privy Council, but without costs in that court, the deposit will nevertheless avail to liquidate the costs in the court below, and it cannot, therefore, be withdrawn by the appellant. Lemoine v. Lionais, 22 L. C. J. 23, Q. B. 1877. 7. Where certain rents which had been attached were declared by the Court of Appeals to be exempt from seizure, the successful paxty cannot obtain an order to execute the judgment provisionally, as leave to appeal to Her Majesty had been granted. Molson v. Carter, 7 L. N. 292 ; Q. B. 1883. IIMO* The appellant may also consent to the judgment being executed, and in such case may give security only for the costs in appeal, under the same conditions as under article 1124. Ibid s. 52. IISI. The execution of any judgment of the Court of Queci's Bench cannot be prevented or stayed after six months from the day on which the appeal was allowed, unless the appellant files in the office of the clerk of appeals, a certificate signed by the Clerk of Her Majesty's Privy Council, or any other competent officer, and stating that the appeal has been lodged within such delay and that pro- ceedings have been had therein. Ibid. a. 53. 1. Where a record had been remitted by the clerk to the court below in consequence of the certificate not being lodged within six months after the granting of the appeal — Held, that the court could not order the protbonotary of the court below to return the record. Brewiter et al. v. Chapman et al., 20 L. C. J. 295, Q. B. 1856. l181. sient notice, that ng to make such ight legally have e Beacon Fire and r in chambers to ihe Privy Council ized of the matter i-c. of Montreal v. ppeal to the Privy ined in the Privy 1 will nevertheless ; cannot, therefore, J L. C. J. 23, Q. B. sre declared by the essful paity cannot ', as leave to appeal 7 L. N. 292 ; Q. B. the judgment e security only iitions as under of the Court of stayed after six al was allowed, clerk of appeals, Majesty's Privy ,nd stating that |ay and that pro- 3. Ik to the court below 1 within six months i could not order the Breuitter et al v. APPEALS TO HER MAJESTY, ARTS. 1181-1182. 663 2. Whore appeal had been had to the Privy Council, and a certificate was filed setting forth tluit the case had been referred to the judicial committee of that body — Held, that, pending such reference, no application in the case could be made before the Court of Appeals here. Brown v. The Mayor, etc., of Montreal, 19 L. C. J. 140, Q. B. 1875. 3. Where appeal was had to the Privy Council, and the respondent moved to decl">.re the appeal deserted on the ground that the record had not been transmitted — Held, that as a certifit.a.to of appeal to the Privy Council was before the Court, the motion would be rejected. Whyte v. Tfie Home Insurance Co., 19 L. C. J. 196, Q. B. 1875. 4. The only penalty for failing to proceed with an appeal to Her Majesty during more than six months after security has been given, is the execution of the judgment appealed from. The Merchants' Bank v. Whitfield, 27 L. C. J. 183, Q. B. 1883. 5. Where leave had been granted to appeal to the Privy Council, and a copy of the record had been transmitted by post within the delay required, but the certificate required by C. S. L. C. cap. 77, sec. 53, that the appeal had been lodged and proceedings had thereon before the Privy Council, had not been filed within that delay — Held, that the Court of Queen's Bench would not order the provisional execution of its judgment. Jones V. Guyon, 17 L. C. R. 377, Q. B. 1867. 6. The delay of six months fixed by C. S. L. C. cap. 77, during which execution on the judgment is suspended, is not absolute but directory only, and the Court of Appeals may refuse to order the record to be remitted to the court below to the end that execution may be sued oat, where the appellant has lodged his appeal to the Privy Council soon after the expiration of six months. Ibid., 2 L. C. L. J. 161, Q. B. 1866. ll^iS. The Clerk of Appeals of the Court of Queen's Bench is bound to register any exemplification of a decree of Her Majesty in her Privy Council, as soon as it is pre- sented to him for that purpose, without requiring any order of the Court of Qaeeii's Bench to that effect, and to send back the record in the case to the court below, together with a copy of such exemplification which has been regis- tered as above mentioned. Ibid. s. 54. .".5S »ii;u ' .' !' :l»: il m m I 664 SUMMARY TRIAL OF SMALL CAUSES, ARTS. 1183-1187. BOOK FIFTH. INFERIOR JURISDICTIONS. CHAPTER FIRST. 1' n COMMISSIONERS COURT FOR THE SUMMARY TRIAL OF SMALL CAUSES. 1183* The commissioners cannot sit and bold their court separately and at the same time in the same locality. The court may be held by one commissioner, and several or all of the commissioners may likewise sit together. They must decide according to equity and good conscience, and to the best of their ability and judgment. C. S. L. C. c. 94, ss. 4, 7, 11. See 41 Vict. c. 17 (Que.) 11S4. The commissioners have, for keeping order during their sittings, and for enforcing the execution of their warrants, orders and judgments, the same powers as the other courts of Lower Canada. Ih'ul. ss. 9-44. 11M5. They may be recused for the same reasons as judges of other courts. llSfi. The recusation must be in writing. Ibid. s. 12. 11H7, If all the commissioners are recused by either of the parties, the case is immediately transmitted to tlie nearest Commissioners' Court, which decides upon tlio validity of the recusation, and afterwards hears and deter- mines the merits of the case, in the event only of the recusation being maintained. SUMMARY TBIAL OF SMALL CAUSK8, ARTS. 1187-1188. 665 But if the recusation is overruled, the case is sent back to the former court, which may, without reference to the merits, tax the costs of such recusation against the party who made it. Ibid. Commissioners may be recused like other judges. A judgment ren- dered by a commissioner personally interested in the suit will be annulled, though the ground of recusation was not urged at the trial. Commissioners are bound to take notes of the evidence in writing. Exp. Jladiger v. Hawkins, 4 L. N. 305, S. C. 1881. ''M^ i :'i! RIAL OF SMALL imc reasons as 118S. The Commissioners' Court exercises an ultimate jurisdiction in all suits purely personal or relating to moveable property, which arise from contracts or quasi- contracts, and wherein the sum or value demanded does not exceed twenty-five dollars, and the defendant resides : 1. In the locality of the court ; 2. In another locality, but in the same district and within a distance of five leagues, if the debt has been con- tracted in the locality for which the court is established ; 3. In a neighboring locality in which there are no com- missioners, or in which the commissioners cannot sit by reason of illness, absence, or other inability to act, provided such locality is in the same district within a distance not exceeding ten leagues. 1 Boitard, p. 93-4 ; Both. int. gen. Nos. 110-111, 119; C. S. L. C. c. 94, ss. 9, 19-20. 43-44 Vict. c. 27 (Que.) : 1. The third paragraph of art. 1188 of the Code of C. P. is amended by adding after the words " Commissioners" in the first and second lines tliereof, the words "or other courts having jurisdiction to take cogniz- ance of the matter at issue." 2. This Act shall apply only to the cities and towns of Montreal. Quebec and Three Rivers; and shall take effect only after the first day of September next, IHMO. 1. Proceedings luider paragraph 'A must show the jurisdiction of the court on tlieir face ; ':»i!-.! % mm, '(% m i 666 SUMMARY TRIAL OF SMALL CAUSES, ARTS. 1188-1191. A Commissioners' Court established in a parish, part ol which has since been erected into a town, has no jarisdiction within the limits of such town, though it still forms part of the same canonical parish ; the jurisdiction of such court is governed by the municipal, and not the canonical limits. Sirois et c,l. v. Ouimond, 11 B. L. 230, S. C. 1882. 2. Commissioners for the summaiy trial of small causes have no juris- diction in an action v.here the claim, amounting to more than twenty-five dollars, has been divided in order to give jurisdiction to the court. De»parois exp. v. Laherge, 7 L. C. J. 35, S. C. 1859. 3. The Commissionors' Court has jurisdiction in an action for the recov- ery of the b^ilance of a sum exceeding 925, provided such balance does not exceed that sum. Bourbeau exp., 13 L. C. B. 65, S. C. 1862. 4. The jurisdiction of the Commissioners' Court for the summary trial of small causes extends to actions by creditors against the heirs of the deceased. Charbonneau exp., 7 L. C. J. 122, S. C. 1863. 5. The Commissioners' Court for the trial of small causes, has no jaris- diction in actions for tithes. Roy v. Bergeron, 2 B. L. 532, C. C. 1867. 6. In an action brought before the Commissioners' Court for the sum- mary trial of small cau'i'^s, the jurisdiction must appear on the face of the proceedings ; and a defendant who has been condemned may demand that the judgment be set aside on the ground that neither the service nor the judgment show the jurisdiction of the court in the matter. Macfarlane V. Bjurgault, 16 L. C. J. 221, 8. C. 1872. 7. Commissioners cannot take cognizance of an action for damages et delictu. Legendre v. Lemay, 2 Bev. de Leg, 337, K. B. 1820. IISO. It has no jurisdiction in suits for slander, or for assault and battery, or relating to civil status, paternity, or seduction, or lying-in expenses ; nor in suits for the recovery of any fine or penalty whatever. Ibid. s. 8. 1190. It has jurisdiction in suits for the recovery of as- sessments, not exceeding twenty-five dollars, imposed for the building of churches, parsonages and church-yards. C. S. L. C. c. 18, s. 25. 1191. It may, iu matters within its jurisdiction grant: Attachments for rent ; Attachments in revendication ; Attachments by garnishment after judgment ; [Mm '' irisdiction grant: SUMMARY TRUL OF SMALL CAUSES, ARTS. 1191-1192. 667 Simple attachments or attachments by garnishment before judgment, for sums exceeding five dollars, whenever it is established by the affidavit of the plaintiff, or of his agent, that the defendant in secreting or is about to secrete his property, or absconds or is immediately about to leave the Province, with intent to defraud his creditors. Ibid. c. 94, ss. 23-4. 11 OS* [These proceedings may be 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 where i^ requires to be executed, is endorsed upon the warrant.] Every warrant of simple attachment in revendication, attachment for rent, attachment by garnishment or seizure by garnishment, must be made returnable on a day named within forty days, and the return with a certificate of the proceedings must be made on the day so named. Such affidavit may be received either by one of the commissioners or by the clerk of the court. Ibid. s. 25. 37 Vict. c. 11 (Que.) : " 1192a. In the case of attachment by garnishment before or after judg- ment, the garnishee, within three days after the writ of seizure has been served upon him, may make his declaration under oath before the clerk of the Circuit Court nearest to the place where the writ was served upon him. " 1192b. Such clerk is authorized to administer the oath required, and must, after having drawn up and received the declaration of the garnishee) forward the same, without delay, through the post, by a registered and stamped letter, to the clerk of the Commissioners' Court where the cause is pending. He is entitled to a fee of one dollar, payable by the garnishee, for drawing up, receiving and forwarding the declaration as required ; and, on the payment of such fee, he prepares a receipt vhich he forwards with the declaration of the garnishee. " 1192<;. Such sum of one dollar is taxed by the commissioners or by their clerk as an integral part of the costs of suit, and the receipt given therefor and forwarded to the clerk of the Commissioners' Court is equi. ■rt j'l 1 1 ■^WM I :■ S' ■:^m t ■ if:j ..•IJ , I'l m GUMMART TniAL OF SMALL CAUSES, ARTS. 1192-1197. valent to a judgment of such coart in favour of the garnishee against the plaintiff in the suit, and may be executed by seizure, after the same delay and in the same manner as any other judgment of such court." 111I3* Any minor above the p,ge of fourteen years may bring a suit before a Commissioners' Court for the recovery of wages or salary, in the same manner as if he was of {€. Ihid. s. 21. 1104> The delay upon ordinary summons must be at least three clear days when defendant does not reside more than two leagues from the place to which he is summoned, with the usual addition of delay when the distance exceeds two leagues, according to article 76. But if the summons is accompanied with an attachment, the delay must be at least fifteen days' and not more than forty days. Ihid, ss. 22-27. 1195. The writ of summons commands the defendant to pay the plaintiff the amount demanded or to appear before the court to answer such demand. It must also contain : The names, surnames, residence and occupation, both of the plaintiff and of the defendant ; A summary statement of the cause of action ; The day on which the defendant must appear ; The date of the writ ; The signature of the commissioner. 7 V. c. 19, sched. No. 1. 1196. Ordinary writs of summons may be served by any bailiif of the Superior Court or by any sergeant of militia residing in the locality. C. S. L. C. c. 94, s. 28. W\Y7* If the summons is accompanied with an attach- ment it can only be served by a bailiff. Ihxd. § 2. cupation, both of 7 V. c. 19, soiled. SUMMARY TRIAL OF SMALL CAUSES, ARTS. 1198-1203. 669 llOS. Either party may evoke the case to the [Circuit] Court in the district when the contestation relates : To any title to immoveable property ; To any fee of office, or to any sum of money due to the Crown ; To any duty, rents, revenue, or annual rent, payment or other matter by which rights in future might be bound. C. S. L. C. c. 83, 8. 178; c. 94, s. 29. 1199> The improbation of any act or document pro- duced before the court has the effect of an evocation [to the Circuit Court] . Ibid. c. 94, s. 30. 1200. In the case of the two preceding articles, the commissioner, or one of the commissioners, or the clerk, must, within fifteen days, transmit the record to the Circuit Court, together with a certified transcript of the entries in the register concerning the same. Ibid. s. 31. Nevertheless, in the case of improbation, the record cannot be transmitted unless the party alleging the falsity gives sufficient security for the costs to be incurred upon such improbation. 1201* [In default of such security being given within the delay fixed by the court the party forfeits his right of evocation, and the Commissioners' Court may proceed to bear and determine the case without regard to the impro- bation. 1202* If the evocation is allowed, the case is heard and determined by the court to which it is evoked, as if it bad originated therein. Ibid. a. 32. 1209 . No person can act as attorney of either of the parties I afore a Commissioners' Court except he is an advo- cate or aitorney-at-law, or the holder of a special power of attorney, or unless it is in the presence and with the con- sent of the party. I ■■■'I 111 ^= -I'll ■It '-1 ' 1 1,11:1';. fr??is I ,'■ '^... ■', .'"iJ-'t m 670 SUMMARY 'li'lL OF SMALL CAUSES, ARTS. 1203-1208. Bailiffs and sergeants of militia can in no case act ns attorneys. Ibid. s. 18, § 1. 1204. Any person, other than an advocate or attorney- at-la\v, who acts for one of the parties must do so gratu- itously ; and if such person for so acting receives, either directly or indirectly, any fee, emolument or remuneration whatever, he is deemed to have received the same under false pretences and may be punished accordingly, and is, moreover, disqualified for ever acting as attorney before a Commissioners' Court. Ibid. § 2. ISOS. No clerk of such court can act as attorney of either of the parties. Ibid. § 3. ISOO* If the defendant has been served personally and makes default, or if he confesses judgment, or if the parties agree to it. the case may be heard on the day of the return and judgment may be rendered. In any other case the suit must be pos':;poned to a subse- quent day for trial. Ibid. s. 83, §§ 1-2. 1307> By consent of the parties the case may be referred to the decision of three arbitrators, one of whom is named by each party and the third by the court. The court may also, in its discretion, order such reference. The arbitrators before acting, must be sworn before one of the commissioners or before a justice of the peace, to fulfil their duty faithfully and impartially. They may hear the parties and their witnesses, who must be sworn before a commissioner or before a justice of the peace. The decision of two of the arbitrators is final, and must be homologated and executed accordingly. Ibid. s. 34. ISOH. The cases are heard, tried and determined in a summary manner, without any written pleadings being necessary. Ibid. s. 7. ■I'g SUMMARY TRIAL OF SMALL CAUSES, ARTS. 1208-1212. 671 An opposant is not bound to proceed to proof on the return day, but in entitled to have a aubsequont day fixed for trial. J'.xp. Lamonreux v. luttrell, 4 L. N. 2'J8, 8. C. 18H1. I200* Oral testimony is admitted in all cases, and one witness, even if related, is sufficient. But the bailiff or sergeant who served the writ of sum- mons cannot be a witness for the party who employed him, except as regards the service itself. C. S. L. C. c. 94, s. 18, ^ 3 ; s. 36 ; c. 82, ss. 14, 15, 16. See art, 262, ante. 1310* Upon the application of either of the parties, the court may compel any person residing within its jurisdic- tion to attend as a witness in any case, under a penalty of uot less than one dollar, nor more than four dollars, for every default to attend as commanded. C. S. L. C. c. 94, s. 35. 1311. The court, in rendering judgment, may condemn the unsuccessful party to the costs of suit, of contestation, and of arbitration. But if the amount of the judgment does not exceed two dollars, the court may reduce the costs to the same amount as that for which judgment is rendered. Unci. s. 38. 131S* If the debtor fails to satisfy the amount of the condemnation against him within eight days, he may be compelled to do so by the seizure and sale of such seizable moveables as he may have within the district in which the court was held. He is liable to the costs of such execution to the amount of one dollar and a half. If the sale does not take place he is not bound to pay more than seventy-five cents of costs. These costs do not in any case comprise the expense of feeding cattle, if any have been seized. FIdl 'r.:rw f: . i ■. .: !■■ lilf'iiiaij .: MM.V " 672 JUSTICES OF Tnn PEACE, ARTS. 1212-1216. The warraut of execution must be made returnable and be returned like the other warrants mentioned in article 1192. Ibid. ss. 41-2. 1213. No opposition to the sale of moveables under seizure can stay proceedings, unless it is allowed by a com- mission' •: and accompanied with an order to that effect. Ibid. s. 43. I214* Oppositions thus allowed are heard and deter- mined in the same manner as other cases before the court. Ibid. 1215. The clerk, and the bailiffs or sergeants of militia cannot demand any other emoluments than those mentioned in form number 56 in the Appendix to this Code.* Ibid s. 40. CHAPTER SECOND. OF JUSTICES OF THE PEACE AND OTHER INFERIOR CIVIL JURISDICTIONS. 1216* Justices of the peace have also jurisdiction in certain civil matters, such as the recovery of school taxes, of assessments for the building or repairing of churches, parsonages or church yards, damages caused by animals, and other matters relating to agriculture, disputes between masters and servants in the country parts, seamen's wages, claims of pawners against pawnbrokers, and other matters. 1. A jastice of the peace has no jurisdiction under 12 Vict. cap. 55, in cases for the desertion of a servant, unless there is a contract. Rose exp. 3 L. C. R. 495, S. C. 1853. 2. An attachment after judgment issued by a justice of the peace and all proceedings thereon are absolutely null. Dumont v. Laforge, 1 Q. L. B. 159, S. C. 1874. *No such form appears in the official edition. WRIT OP CERTIORARI, ARTS. 1217-1220. 678 1317* In certain cities the Recorder's Court has also jurisdiction for the recovery of certain municipal claims, and in matters of dispute between lessors and lessees and master and servant. 1. The Superior Court has jurisdiction as a court of appeal from jndg< ments of the Recorder's Court, relating to taxes imposed by the corpora- tion of the city of Quebec under its by-laws. Boiwell v. The Mayor et al. of Quebec, 14 L. C. B. 450, S. C. 18G4. ISIIS* The Trinity House also exercises civil jurisdic- tion in matters connected with the shores of the River St. Lawrence and of the rivers flowing into it, and also with regard to the wages and indemnities due to pilots. 1210* The extent of the jurisdiction of these special courts and the manner of proceeding before them are regu- lated by the statutes which create them or relate to them, and in certain respects by the practice therein followed. r 'vi CHAPTER THIRD. REMEDIES AGAINST THE PROCEEDINGS AND JUDGMENTS OF THE ABOVE-MENTIONED COURTS. 1320* In all cases where no appeal is given from the inferior courts above-mentioned, the case may be evoked before judgment, or the judgment may be revised, by means of a writ of certiorari, unless this remedy also is taken away by law. 1 Wharton Law Lex. 144. 1. A notice of application for a writ of certiorari given within the six months following conviction is not sufficient if the application itself be not made until after the expiration of such six months. Palmer exp., 16 L. C. J. 263, S. C. 1872. 43 F. c. 0. p. ■:i m 674 WRIT or OBRTIORARI, ART. 1220. t. A etrtiorari allowed before the expiration of lix tnontba from the date of the conviction to be removed, but not sued out until the aix montha had expired, was qnaahed. Allani exp. v. GhilUu, 2 Rev. de L^g, 82, K. U. 1819. Contra : Kxp. Fhet, « g. L. R. 102, S. C. 1877. 8. Under the liconao law of the city of Montreal, the defendant has no right to a certiorari until he ban made the deposit required by law. Doray exp. v. Sextim, R. L. 507, 8. C. 1874. 4. The writ of certiorari does not lie from a conviction pronounced by a diatrict magiBtrato under the License Act, «von where the defendant Iiuh made the deposit required by that Act. Duncan exp. v. Marquiit exp,, 4 R. L. 228 and 10 L. C. J. 188, 8. G. 1872 ; Danjou v. Marquia, 12 R. L. 480, 8. 0. 1872. 6. A writ of certiorari will lie to bring the record and proceedings of a court-martial before the Superior Court, and the fact that the petitiotiur haa a remedy in trespass is no bar to his right to ask a reversal of the judgment by certiorari ; and a prima facie case, showing want or excess of jariadiotion, or that the court waa illegally convened and irregularly coii- atituted, will be auffioient to obtain the writ. Thompson exp,, 2 Q. L. It. 116, 8. 0. 1676. 6. The Superior Court at Montreal has no jurisdiction on a jietition for certiorari, to enquire into a conviction by a justice of the peace in tlie diatrict of Three Rivers. Cumming exp. 8 L. C. R. 110, B. C. 1H52. 8ee Narhonne exp,, B L. N. 14, Q. B. 187*J, as to jurisdiction of court to order certiorari to bring up depositions before a magistrate in order to examine into their sufficiency. 7. The Crown may waive the objection arising from failure to procetd within the six months. Laviolette exp. v. Trudel, 3 L. N. 159, 8. G. 1880. 8. The prosecutor cannot upon a petition for a writ of certiorari be condemned to pay costs, unless he has been made a party to the proceed- ings. McLaughlin exp. v. Lalonde et al; McMaster et al. v. Soucliereau, ;i L. N. 367, 8. C. 1880. 9. The Superior Court will not interfere by writ of prohibition to prevent the Recorder of Montreal from hearing and deciding upon a corn- plaint against petitioner in a matter within his jurisdiction. In a proceeding against petitioner before the Recorder under the Quebec License Law, the revocation of petitioner's license as hotel-keeper was asked for. Held, that even if the license law did not sustain the demaiul for the revocation of a license, the Recorder nevertheless had jurisdiction to try the case, and the defendant's remedy was by certiorari. Kxparti- Hogan, 6 L. N. 817, 8. C. 1888. WBIT OF CERTIORAUI, A&TB. 1220. 676 10. Held, thkt a certiorari would not lin from a judKitteiit of a Commiu- ionert' Court, by reason of ei^ht days boin^ i^ranUid tho defenduiit to plead when there was no pi monal survice, aa tluH did not involve an exoesfl of jurisdiction. (J(k> jause the fees due in such case have not been paid to the clerk of thb peace, but a rule nisi for contempt will not issue de piano, without notice to the magistrate. Davies exp., 3 L. C. B. 60, S. G. 1853. 4. Commissioners to whom a writ of certiorari has been addressed, and who have failed to make a proper return within the proper time, will be mulcted in costs. Leroux exp., 10 L. G. J. 193, B. C. 1866. 1230. If they fail to comply with the writ they are liable to coercive imprisonment, in the ordinary manner. 1231. If the opposite party has not already appeared and filed an appearance in the ordinary form, he may do so immediately 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. S. L. C. c. 89, 8. 3. 1. On an inscription for hearing on the merits of a certiorari, a motion to quash the conviction is necessary. Whitehead exp. v. Brunet, 14 L. C. J. 267, S. C. 1870. 2. The merits of a certiorari may be heard on a rule to quash, without an inscription for hearing. Marry exp. v. Sexton, 14 L. C. J. 101, S. C. 1869. See Appendix. 3. The hearing on the merits of a writ of certiorari must be had in one of the two divisions of the court appointed for such hearing in ordinary cases. Whitehead exp., 15 L. C. J. 43, B. C. 1870, 4. A defendant under a writ of certiorari cannot compel the plaintiff or petitioner to proceed under his writ by a mere motion to that effect, the proper course being by means of a procedendo. Regina v. Carrier, 2 L. C. R. 802, S. C. 1852. jnly is insufficient. WBIT OF OKRTIORARI, ARTB. 1231-1284. 681 5. On a writ of certiorari to quash a conviction of a jnstice of the peace, condemning the city inspector for pulling down a fence erected by private individuals, the court has not the power to inquire into the matters of fact contained in the evidence, or as to the amount of malice which entered into the act with which the accused ia charged. Lanier v. Lanfret Jk Menard, 6 R. L. 350, S. C. 1874. 6. And on a simple inscription on a writ of certiorari, without a rule to quash having been previously taken, the court has not the power to quash a conviction. Ibid, The parties cannot be heard until the case has been inscribed on tho roll. Exp. Bombardier v. Joly, 12 R. L. 97, S. C. 1883. 1232* All interlocutory or final judgments upon writs of certiorari are drawn up and served in the same manner as in ordinary suits. Ibid. s. 2. 1333* The court in rendering judgment upon the writ, mav award costs in its discretion. Ibid. a. 4. 1. Where a conviction was set aside on certiorari — Held, that the costs were at the discretion of the court. Leonard exp., 1 L. C. J. 255, S. C. 1857. 2. And a motion for a writ of certiorari against a conviction of a justice of the peace would be rejected with costs, notwithstanding that the magis- trates alone appeared by an advocate, lieauparlant v. Gerveit et al., 1 R. L. 467, S. C. R. 1865. 3. On a motion to compel a magistrate to return the original papers in a case under certiorari, the motion will be granted, but without costs against the magistrate. Demera exp., 7 L. C. R. 428, S. C. 1857. Overruling Tenien exp., 7 L. C. R. 429. 1334. No appeal lies from the judgment on the appli- cation for the writ, or from the judgment upon the writ itself; nor are such judgments subject to review. Ibid. 8. 6 ; c. 88, s. 17. 1. There is a right of revision of judgments rendered on the demand or motion for a writ of certiorari, and on that revision, the judgment refusing the writ, being held good, will be confirmed with costs. Bearuparlant exp. 10 L. C. J. 102, 8. C. 1865. -!-f>;| ■am ■i''-i»-'rH' Mkm h'^'J ,IJ m 682 WRIT OF OERTIORABI, ARTS. 1284-1286. 2. Bat held, later, that there ia no right of revision of a jodgmen ren- dered on an application for a writ of certiorari. Spelman exp., 10 L. 0. J. 81, and 1 L. C. L. J. 115, S. 0. R. 1866. 1235. The procedure regulated by this chapter applies also to all other cases in which the writ of e/^rticrari will lie, and against any other court not v:aentionecl in this book ; but it does not apply with r espeofc to the co virt of Vice- Admiralty, over which the Superior Jorui;, as ^n oil as the Circuit Court, has no control. / THIRD PART. NON-CONTENTIOUS PROCEEDINGS. 39 Vict. c. 33 (Que.) : 24. Notariea may prepare the non-contentious proceedings specified in the third part of the Code of Civ'l Procedure, and submit the same to the judge or to the prothonotary ; and may especially sign, in the name of the applicants, without any special power, requests or petitions for the summoning of a family council, in relation to tutorships, curator- ships, sale or alienation of the property of minors, interdicted persons, partition in lioitation, homologation en justice, the affixing and the removal of seals, as also all other petitions, or proceedings in which the action of the judicial authority, or of any other public authority whatever, ia to be asked for. TITLE FIRST. OP REGISTERS AND THEIR AUTHENTICATION. CHAPTER FIRST. OF BEGISTEUS OF CIVIL STATUS. 1236. All registers intended to record births, marriages and deaths, or religious profession, must, before being used, be numbered upon the first and every subsequent leaf, with the number of such leaf written in words, at full length, and be sealed with the seal of the Superior Court, by affix- i >i a 684 't, RE0I8TBRS OF CIVIL STATUS, ART. 1286. ing the same upon the two extremities of a ribbon, or other such fastening, passing through all the leaves of such regis- ters and secured inside of the cover thereof ; and upon the first leaf must be written an attestation under the signature of a judge or the prothonotary of the Superior Court of tho district, or of the clerk of the Circuit Court of the county which comprises the Boman Catholic parish, Protestant Church or religious congregation or society authorized to keep such registers and for which they are to serve, and to which they belong, specifying the number of leaves con- tained in the register, the purpose for which it is intended, and the date of such attestation. Such certificate cannot, however, be given until the for- malities prescribed by special acts with regard to certain religious congregations have been fulfilled. C. S. L. C. c. 20, s. 2 ; 25 V. c. 16, s. 1, C. C. Actes de I'Etat Civil, Art. 3. 32 Vict. c. 26 (Que.) : An Act rospecting the Authentication and Custody of Registers of Civil Status. Her Majesty, by and with the advice an-'^ consent of the Legislature of Quebec, enacts as follows : 1. Article 1236 of the Code of Civil Procedure is hereby amended by '"Hing after the words, " the seal of the Superior Court," the words, <. .e seal of the Circuit Court." 2. Article 45 of the Civil Code is amended by striking out the words, *' or to the clerk of the Circuit Court, instead of the prothonotary, in the case specified in the Statute 25 Vict. cap. 10," in the said article, and substituting therefor the words, " or to a clerk of the Circuit Court in the county." 3. Article 47 of the Civil Code is amended so as to read as follows: " Within tho first six weeks of each year, the person who kept the said registers, or who has charge thereof, deposits in the prothonotary's office of the Superior Court of his district, one of the said duplicates, the delivery of which is acknowledged by a receipt which the said prothono- tary is bound to give, free of charge." 4. Article 48 of the Civil Code is amended, by striking out the words " or clerk," in the said article. m. ibbon, or other B of such regis- ; and upon the ar the signature ior Court of the t of the county rish, Protestant ty authorized to to serve, and to r of leaves con- sh it is intended, iren until the for- egard to certain {. C. S. L. C. c. Etat Civil, Art. 3. stody of Regiaters of ; of the Legislature ot hereby amended by jr Court," the words, riking out the words, |e prothonotary, in the the said article, and le Circuit Court in the I as to read as follows: Uon who kept the said le prothonotary'B office said duplicates, the [ich the said prothono- striking out the words REGiSTBRB OF CIVIL STATUS, ARTS. 1286-1289. 68u 6. Within three months after the passing of this Act, all clerks of the Circuit Court in any county shall deliver to the prothonotary of the Superior Court of the district in which sucii county is situate, all registers of civil status then in their possession. 6. Together with the copy of the portions of the Civil Code required, by article 1287 of the Code of Civil Procedure, to be attached to the duplicate register mentioned in the said article ; a copy of tliis Act shall likewise be attached. 7. All registers which, since the coming into force of the Code of lUvil Procedure, have been authenticated by any clerk of the Circuit Court and sealed with the seal of the said court, shall be held to have been and to be, as legally authenticated as if article 123() of the said Code of Civil Procedure bad originally been enacted as amended by section one of this Act. 1237* The d' plicate register which is to remain in the hands of the priest, minister, or person doing the parochial or clerical duty of each Eoman Catholic parish church, Protestant, or religious congregation, must be bound in a substantial and durable manner. [A copy of the title Of Acts of Civil Status, in the Civil Code, and of the first, second and third chapters of the title Of Marriage in the same code, must be attached to such auplicate.] C. S. L. C. c. 20, s. 1, § 3. Vide 32 V. c. 26, ss. 6, 7, under preceding article. 133^4. Gur^s, churchwardens oi fabriques, and other such administrators, in places where baptisms, marriages and deaths have taken place, and also the superior of communi- ties, in which vows of religious profession have been made, are respectively bound to fulfil the requirements of the law with regard to the registers of acts of civil status, and may be compelled to do so by such means and under such pains, penalties or damages as the law allows. 1230* Any person who desires to have any register rectified must present to the court a petition for that pur- pose, stating the error or t)mi8sion of which he complains, and praying that the register may be rectified accordingly. 'I ;'Vt Mi ■VJMM ! 666 REGISTERS OF REGISTRY OPPI0E8, ARTS. 1289-1242. The petition must be served upon the depositary of such register. 0. P. C. 855. A judgment of interdiction which has been pronounced by the protho- not iry, is Hubjeot to revision by the court only, and not by a judge in chambers. Clement ex qual v. Francis, C L. N. 801, Q. B. 1881. 1240. The court may also order any person to be called in, whom it deems interested in the application. C. P. C. 856. Such peraou is thereupon summoned in the ordinary manner. 1341. Any judgment ordering a rectification must contain an order for the inscription of such judgment upon the two registers, and no copy of the act rectified can there- after be delivered without the corrections thus ordered to be made. C. P. C. 857. til'' T»^v .VkiBi CHAPTER SECOND. REGISTERS OF REGISTRY OFFICES. ,,,. ' ' 124S. Every register of which the law requires the authentication, must, before any entry be made therein, be authe fcicated !»y an attestation, written on the first page and signed by the prothouotary of the Superior Court of the district in which the register is to be used ; and such attestation must mention the purpose for which sucli register is intended, the number of leaves contained therein, and the date of the attestation. Each leaf must be num- bered in words, written at full length, and the prothouotary must write thereon the initial letters of his name. C. S. L. C. c. 37, s. 59. L289-1242. (OBitary of such need by the protho- [ not by a judge in , B. 1B81. rson to be called atioU' C. P. C in the ordinary ictiiication must h judgment upon ectified can there - thus ordered to bt- INSPECTION OF D00UMBNT6, ARTB. 1248-1246. 687 CHAPTER THIRD. REOISTERS OF SHERIFFS AND CORONERS. 1348* 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 official capacity, and when such register is filled one of the duplicates thereof must be deposited by such sheriff or coroner in the office of the prothonotary of the Superior Court for the District. Ibid. c. 92, s. 11. 1244* Such registers must be authenticated in the same manner as those of the registry offices mentioned in article 1242. Ibid. § 2. If,' I ■■ h D. CES. law requires the made therein, be on the first page Superior Court of [e used ; and such for which such I contained therein, saf must be num- the prothonotary I his name. C. S. TILTE SECOND. OF INSPECTION OP DOCUMENTS. 1245. Notaries are bound, upon payment of their lawful fees and dues, and without any judge's order, to give com- munication or copies of or extracts from any act or docu- ment forming part of their official records, to the parties or to their heirs or legal representatives. 1 Couchot, 84 ; SBrillon, 506; Ord. 1535, art. 12; 1 Fig. 54; C. P. C. 839 ; sed. vide Bioche t. 4, p. 898, No. 66. 1246. They are not bound to give such communication, copies or extracts to other parties without an order from a judge [unless it is of such nature that it should be regis- tered] . Cou. loc. cit., 1 Pig. 49. •i]:m i?|lrii -'i C88 INSPECTION OF D0CUMKNT8, ARTH. 247-1268. . .if I I 1SI47* If the notary refuseB to gi > surl communica- tion, copies or extracts, as required, tho poison demanding the same may, by petition duly served upon p icli notary, apply to a judge for an order for inspection, which is granted upon proof of his right or his interest. 1 Pig. 49, fi4; 1 Lacombe, 129 ; C. P. C. 889, 841. 1SI4M. If communication only be demanded, the order fixes the day and hour when communication of the act must be given. If a copy or extract be demanded, the order fixes the time at which it must be furnished. 1 Pig. 51. 1*2-Aii» The service of the order of the judge upon the notary must give a sufficient delay for a compliance with such order. Ibid. . 1250. The copy or extract must be certified to have been delivered in compliance with the order ; and the notary mentions the fact at the foot of the copy of the order that was left with him. Ibid. 47, 52, 63 ; C. P. C. 842. 1251* If the notary fails to comply with the order of the judge, he is liable for all consequent damages, and to coercive imprisonment. Ibid. 45. 1252. When the original of any authentic act or a public register has been lost, destroyed or carried away, and any authentic copy or extract thereof exists, the holder of such copy or extract may apply to the court or judge for leave to deposit the same with such public officer as the court or judge will name, to be there used and considered as an original, the copies of which will be deemed authentic. Ibid, 54. 12S3* [A. similar application may be made by any party to a deed, in order to oblige any other party to the same, who is in possession of an authentic copy thereof, to mWmih mi ii' FAMILY COUNCILS, ARTS. 1268-1267. 689 1258. ) communica- ,on demanding I Bicli notary, tion, wliicli is iBt. 1 Pig. 'i9. [ided, the order tion of the act order fixes the ;. 51. judge upon the compliance with certified to have order; and the the copy of the , 52, 53 ; C. P. C. nth the order of damages, and to itbentic act or a or carried away, Ifexists, the holder court or judge for Ihlic officer as the ^d and considered deemed authentic. be made by any Uher party to the Lie copy thereof, to deposit such copy for the same purpose, and such other party is bound to comply with the order of the court or judge in that behalf, under pain of all damages. The whole, nevertheless, at the cost and expenses of the party requiring such deposit, who is obliged to furnish him with a copy of the deed and to indemnify him for all travelling and other expenses.] 12i04« The petition must be served upon all other inter- ested parties mentioned in the act. V2!iti» Upon satisfactory proof, the court or judge orders the document produced to be deposited in the pro- thonotary's or notary's oftice or other public otticem which the original was ; or if it is a notarial act, forming part of the records of a notary who is dead or has ceased to practise, then in the prothonotary's office in which the records of such notary are deposited ; and every regular copy of the document thus deposited avails for proof in the eame manner as if such document was the original. TITLE THIRD. OF FAMILY COUNCILS. 1256* Whenever application is made to provide minors, interdicted persons, absentees or substitutes, with tutors or tutors ad hoc, or curators, or to authorize such tutors or curators to do some particular act, or for leave to alienate immoveables belonging to persons who have not the free exercise of their rights, or for the emancipation of minors, the judge or the court cannot act without previously taking the advice of a family council. 2 Pig. 6. 1357. Family councils are convened and composed in the manner provided in the ninth title of the first book of the Civil Code. 44 F. c. c. p. • y IB* m 4 h\ •!1 i */ i 690 FAMILY COUNCILS, ARTS. 1258-1261. 125J^. Any person demanding 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 five leagues from the place where the family council is to meet, with the usual additional delay when the distance exceeds five leagues, according to article 75. 2 Pig. 302. 1259. The relations and friends must be sworn before giving their advice upon the matters submitted to them. C. S. L. C. c. 48, s. 1, § 3. ISSOO- The minutes of the advice given by the relations and friends must be signed by them, or must mention the reasons which prevent them from signing. 13orta must not be related either to the parties or to the persons acting for them. 1369. The nomination of experts may be made under the sanction of the judge or of the notary before whom the application is made to have a family council convened. Ibid. Form No. 52. In connection with article 1269. On the day of in the year one thousand eight hundred and , at o'clock in the noon, before the undersigned public notaries for Lower Canada, residing in the district of came and appeared 4, residing of the one part, and B, residing of 1269. IMMOVEABLES OF MIKORS, ETC., ART. 1269. 693 IG TO MINORS >N8. eable property, lancial associa- persons, can be ,he court or of a , 57. jrescribed by the tee unless, before immoveable baa )m was named by e-tutor ; and such parties or to tlie ay CO be made under before whom the uncil convened. 1269. one thousand eight in the ^oo"- I for Lower Canada, me and appeared ^^, residing the other pert, who have appointed, that is to say, the said A the person of and the said B that of as experts, for the purpose of proceeding to the inspection of the real estate belonging to described in the declaration made by the said by Act before , notary {or one of the undersigned notaries), to ascertain the value thereof {and if the sale is demanded on account of indivisi- bility) and whether or not it can advantageously be divided. On the Form No. 53. In connection with article 1269. dav of in the year one thou- sand eight hundred and at o'clock in the noon, before me, the undersigned notary pub- lic for Lower Canada, residing in the district , came and appeared , who affirms that, in conformity with the declaration made by Act before , notary, bearing date the , for the purpose of obtaining authority to sell, for the reasons therein set forth, the real • state belonging to , therein designated and described as follows, to wit • {here describe the real (■state) he did for the said purpose cause to be summoned before us, to wit : in default of relations, requiring us, they being present, to receive their advice as •'» the contents of the Act of Declaration aforesaid, and the parties above named having appeared, we have caused to be read the said Act of Declara- tion, the report of the experts made before , notary, and his colleague, and have taken and received from them the necessary oath, and such oath having been made, they have all unanimously declared that they are ^f opinion that (Should there he a division of ojnnion, mention the same, and (jive the reasons therefor.) :'ill|i m^ ^, -^p^' m m^ Ml i! m ■ m ■.mm 'mm 604 IMMOVEABLES OF MINORS, ETO., ART. 1270. ,.;-■ ■:-,i',;s, 1270. The experts, after being sworn before the judge, prothonotary,clerk or notary, must ascertain the condition and value of each immoveable, and the truth of the other circumstances on account of which the sale is demanded, and make their report by a notarial act, delivered in original form. Ibid. § 2. Form No. 54. In connection with article 1270. I, and I, , do make oath and swear that I will faithfully proceed to the performance of what is required of me by tbe act of my appointment, executed before , notary, on ihe and that I will make a true report of my opinion on the whole matter, without favour or partial- ity for any of the parties interested in the matter in question. So help me God. Sworn before me, the undersigned notary. Form No. 55* In connection with article 1270. On the day of in the year one thousand eight hundred and at o'clock in tlu noon, before me the undersigned Public Notary for Lower Canada, residing in the District of came and appeared the experts appointed by the Act above executed by the undersigned Notaries, on who declare that having previously made oath aa appears by the certificate hereunto annexed, they proceeded on the day of to the inspection of the real estate. 1270. lefore the j^dge, an the condition ath of the other ,le is demanded, ^ct, delivered In 270. do make oath and ,he performance of my appointment, , notary, on ike a true report of t favour or partial- in the matter in tary. IMMOVEABLES OF MINORS, ETO.» ARTS. 1270-1272. 695 appurtenances and dependencies mentioned and described in the declaration of received by ,. Notary, the , and after due examination and obtaining every information necessary for the purposes men- tioned in the said Act of appointment, they value and esti- mate the said real estate {if there be several immoveahles, thei/ should be valued separately), and Turther, {if the sale is made on account of indivisibilit;/) they declare that it cannot advantageously be divided. The said experts further declare that they are not related to the parties interested in the matter in question, nor to their legal representatives. Whereof Act in original form is delivered at 1271* If the experts cannot agree each must report his respective opinion, giving the reasons upon which such opinion is based. I37SS> The report is submitted to the family council, to- gether with the application to be authorized. Ibid. s. 1, § 3, s. 2. ■\m ; i/jif 1270. year one thousand o'clock in tlit Id Public Notary for lof Its appointed by the Notaries, on Ide oath as appears By proceeded on tlie m of the real estate, Form No. 56. In connection with article 1272. Lower Canada, ) District of / To the Honourable the Judge {or Judges) of the Superior Court at tfcc, &c. A. {addition and place of residence) humbly represents that he has caused the relations and friends of to be consulted by , Notary, at on the 696 IMMOVEABLES OF MIK0R8, ETC., ARTS. 1272-1277. (lay of , and has caused to be fulfilled all the proceedings by law required to be had in. order to and submitted for your approval. And he therefore prays that your honours will take these proceedings into consider- ation and homologate them, if thoy ought to be so homolo- gated, and you will do justice. At the one thousand eight hundred 1373* ilf the matter relates tc the investment of moneys, or to shares or stock in manufacturing or financial associations, the value thereof must be ascertained.] 1374. The judge, if he authorizes the sale, must fix an upset price for each immoveable, share or stock, and, inde- pendently of the other conditions imposed upon the sale, such upset price cannot be less than the value ascertained by the experts. 2 Pig. 186. 1S75. If the judge refuses to aathorize the sale, the reasons for such refusal must be g" /en in v, riting, and form part of the record. 1376. The place and time of the sale mu^'t be published on three consecutive Sundays, at the door of the parirh church of the place where the immoveables are situated ; or, if there is no churoh, at the most public place in the locality ; and notice thereof must be posted up immediately aftu* tlie first publication, and such notice must contain a doscfiptiou of the immoveables. 2 Pig. 106-7-8. 1377. ; If no higher price is offered than the upset price. the person applying for the sale may proceed t3 etrect a private sale ; but he can only do so within the four mouths which follow the authorization, and for a sum not less than the upset price, i IMMOVEABLES OF MINORS, ETC., ART. 1278. 697 1278. In the case of a voluntary licitatiou of an im- moveable, held undividedly between a tutor and his pupil, and which cannot be advantageously divided, proceedings are had in the manner above mentioned, and no purchase of it by the tutor is valid unless the minor is represented at the sale by a tutor ad hoc. 35 Vict. c. 7 (Que.): Whereas the t ^rmalities prescribed for the judicial sale of immoveable property belonging to minors, and others incapable of acting for them- selves, have been established solely for the protection of the latter ; and whereas, in the case of the sale of immoveables of small value, the price thereof is frequently absorbed, to the detriment of minors and their creditors, by the observance of the formalities required for the sale of Buch immoveables : Therefore, Her Majesty, by and with the advice and consent of the Lej^islature of Quebec, enacts as follows ; 1. Articles 'i'JH and !rJi»ii of the Civil Code, and the fifth title of the third part of the Code of Civil Procedure, shall not apply to the sale of im- moveable proiierty, the real value of which does not exceed the sum of four hundred dollars ; the sale of such immoveables may tak^^ place in the manner set forth in the following section. 2. Whenever the real value of the totality of the immoveable or immove- ables, belonging to minors or others incapable of acting for themselves, does not exceed the sura of four hundred dollars, a judge of the Superior Court may, upon petition presented to l)im to that effect by the tutor and subrogate-tutor of such minors, or by the curator of such persons as are incapable of acting for tlieinselves, after making summary inquiry as to the value of tlie said iniiuoveablcs, order the sale thereof by public auction, at the prices and upon tliH conditions which he may deem just and reasonable to fix, in the interest of such minors or persons incapable of acting for theniselvos. 'A. The judge shall have power to issue, under his hand, an oi-der to compel the appearance before hini, without costs, of any [jerson whom he hIuUI deem (jualified to afford him the informatioi' necesHary to determine the value of the said inmioveables, and any such person refusing to comply with such order, sliall be guilty of a contempt of court. 4. Notice of the place, day and hour of such sale shall be given twice in fifteen days in the Quebec Official la 12.2 2.0 u 140 ^ Photograiiiic Sciences Corporation 4^ ■17 23 WIST MAIN STRUT WflSTIR.N.Y. USM (716) •72-4503 IJ 702 OF THE REMOVAL OF SEALS, ARTS. 1292-1297. SECTION II. OF THE REMOVAL OF SEALS. 1202. All applications for the removal of seals, when contested, and all oppositions made after the affixing of seals has been completed, are heard summarily, unless the pleadings are ordered to be in writing. 2 Pig. 299. 121I3. 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 them without any inventory and to make a return of such re- moval ; and in default of this order being complied with, any bailifif holding a copy of the order may break them and make a return of his having done so. 2 Fig. 299-819; C. P. C. 940. 1S94. If, however, seals have been affixed a second time, the complete removal cannot take place until both sealings have been adjudicated upon. ISSflS. If seals have been affixed before the burial of the deceased, they cannot be removed before the expiration of three days after such burial, except for urgent reasons, which must be stated in the order which authorizes the removal. 2 Pig. 316 ; C. P. C. 928. 1206. The removal of seals from the whole or from a part of the property may, in all cases, be demanded by such persons as may demand to have them affixed, and also by any person claiming to be owner ot the effects placed under seal, according to their respective rights ; and the right to prosecute such demand belongs to him who first made it. 2 Pig. 316-17-18; C. P. C. 928. Ift97» The removal of seals must be applied for by peti- tion to the court or judge, in order that the inventory may Ihe whole or from a . demanded by such iffixed, and also by [effects placed under i; and the right to who first made it. OF THE REMOVAL OF SEALS, ARTS. 1297-1300. 703 be proceeded with, after notifying all persons interested. 2 Pig. 317-18 ; 1 Couc. 135 ; C. P. C. 951. 130S* The court or judge, when authorizing the removal of seals, orders that an inventory of the effects shall forth- with 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 the known legatees. 2 Pig. 299, 313-17, 326; 1 Couchot, 135 ; C.P.C. 951. 41 Vict. c. 11 (Que.) : 1. Whenever any of the persons entitled to be present at the removal of seals, or to take part in an inventory, reside outside of the Province, they need not be .summoned ; but in such case a judicial procurator is named by a judge of the Superior Court, on application of the person demanding the removal of seals or the making of an inventory, to represent such persons; and such judicial procurator must be present or have been notified to be present. 2. Notwithstanding the nomination of a judicial procurator to represent the persons mentioned in the preceding section, 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, should they think fit to do so; and such appearance or appointment of a mandatary shall terminate the mandate of the judicial procurator. 3. Section 24 of the Act Hi) Vict. cap. B.B,* shall apply to proceedings under this Act. 4. Articles 1298 and 1805 of the Code of Civil Procedure are supple- mented in the particulars contained in this Act. 1299. 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. 2 Pig. 299, 300 ; C. P. C. 929. 1300. The seals are removed in succession, as the making of the inventory progresses. If the effects contained under any seals are not all inventoried at one time, the seals are reaffixed upon the remainder. 2 Pig. 325 ; C. P. C. 937. * Vide ante page 683. t 1 i* ■ , J' i >■ II I ■ m 704 MAKINO AN INVENTORY, ARTS. 1801-1804. 180I. One or more returns of removal of seals must be made, as the inventory progresses. 1S02. The return of removal of seals must contain : 1. The date; 2. The names, residence and occupation of the applicant, and his elected domicile ; 3. A recital of the order for removal ; 4. Mention that the notices required by article 1297 have been given ; 6. What persons were present, and their respective allegations ; 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 whoever may be liable. 2 Pig. 325-6 ; C. P. C. 936. 1303. If papers or effects be found which do not belong to the succession or the community and are claimed by third persons, they are delivered over to the proper persons, after describing them in the return, if such description is de- manded. 2 Pig. 327 ; C. P. C. 929. CHAPTEK SECOND. OF THE INVENTORY. •■'I rill SECTION III. OP THE MAKING OP THE INVKNTORY. 1304. An inventory of the property belonging to a deceased person, or to a community dissolved by his death, may be demanded by any person who has an interest in it ; but the following persons only can take part in it : MAKING AM IMVEMTORT, ABTS. 1804-1808. 705 of the applicant, iries charged with 1. Those who represent the deceased; 2. The consort of the deceased, or such consort's repre- sentatives, if a community existed ; 3. The testamentary executor. In the case of a community of property dissolved by a judgment, the inventory may be demanded by either of the consorts. 2 Pig. 328-9, 883; C. P. C. 941. 1305* All persons entitled to take part in it must be present at the inventory, or have been notified to be present, in the same manner as for the removal of seals. 2 Pig. loc. cit.; C. P. C. 948. See 41 Vict., c. 11 (Que.), under art. 1298. 1306* The person who is bound to have the inventory made chooses the executing notary; the other parties may appoint a second notary. In cases where seals have been affixed, the order for their removal designates the notary who is to make the inven- tory, subject to the above restriction. C. P. C. 942. 1307- The inventory must be in authentic form. 2 Pig. 331 ; C. P. C. 943. 130J4* The inventory m composed of two parts. The first or the preamble, contains the names, occupation and residence of the persons making the inventory, of those who applied for it, of the persons present or who failed to appear, of all interested persons absent, if they are known, of the appraisers, and the respective allegations, preten-. sions and protestations of the parties. The second part is the inventory proper, and contains : 1. A designation of the place where the inventory is made; 2. A description of the moveable property and effects, and a valuation thereof made according to their real value by two sworn appraisers ; 45 ■■) fi- '(- , ^■;i 706 MAKINO AN INVENTORY, ARTS. 1808-1311. 3. A designation of the amounts in specie or in valuable securities; 4. A designation of all papers, which must also be numbered from first to last and be paraphed by one of the notaries ; 5. All declarations of claims or indebtedness made by the parties ; 6. Mention of the oath having been taken at the end of the inventory, by those who, before the inventory, were in possession of the things, or who inhabited the house in which such things are, to the effect that no portion of them has been fraudulently removed or carried away with their knowledge ; 7. The depositing of the papers and effects in the hands and custody of the person agreed upon by the prj-ties or named by the judge. 1 Pig. 334-5-9 ; C. P. C. 943. 1801I. If, while the inventory is being made, diificulties arise between the parties to their respective rights and pre- tensions, the notary is bound to record such pretensions in the inventory, together with all protestations against the aame, leaving the parties to their judicial recourse. 2 Pig. 340-1 ; C. P. C. 944. 1310. Any of the parties may petition the judge to oblige the notary to enter their pretensions or protestations in the inventory, and the judge is bound to decide upon such petition in a summary manner, after the other parties have had notice of it. As soon as the order made upon such petition has been served upon the notary, he is bound to transcribe it in the inventory and to conform to it. 2 Pig. 341 ; C. P. C. 944. 1311* In the case mentioned in article 1309, the judge may order the exclusion of any of the parties when it is manifest that they have no right ; or else he may order that proceedings shall be taken provisionally in their name, sub- 1311. le or in valuable h must also be ed by one of tbe iness made by tbe ,ken at tbe end of inventory, were in ited tbe house in no portion of tbem jd away witb their iffects in tbe bands 1 by tbe p?."ties or 1 P. C. 943. ngmade.diificulties Btive rights and pre- such pretensions in stations against the OF THE SALE, ARTS. 1311-1317. 707 ial recourse. 2 Pig. tition the judge to lions or protestations land to decide upon jfter tbe other parties lb petition has been transcribe it in tbe . 341 ; C. P. C. 944. [tide 1309, the judge le parties when it is [ae he may order that in their name, sub- ject to the res][)ective protestations of the parties and to their right to obtain a decision upon their pretensions after the inventory is completed. 2 Pig. 333. 1812* With the consent of all the parties the sale may be proceeded with at once, as the inventory is being made ; and in such case no valuation of the effects by appraisers is necessary. 1318* The surviving consort, or other person who is bound to have tbe inventory made, is entitled to the custody of the inventoried effects in preference to any one else ; unless upon being referred to, the judge for some important reason, orders otherwise. 2 Pig. 343. 1314* The formalities and proceedings prescribed by the present section apply to all other cases in which an inventory is required. SECTION II. OF THE SALE. 1315* When the sale of the moveables is demanded by any of the heirs, pursuant to article 697 of the Civil Code, or by any other copartitioner, it takes place upon a day fixed, of \vjiich public notice must have been given. 2 Pig. 852 ; C. P. C. 945-7. 1316* The sale takes place wherever the effects are situated, and for cash, unless it is otherwise agreed or ordered. C. P. C. 949. 1317* The sale is effected by a bailiff or a public crier, or by any person agreed upon by the parties, and the moneys are received by the person thus employed. 2 Pig. 352. ;"'^''H H', \v ''':*• ''■:! 708 OF THE SALE, ARTS. 1818-1820. 1 ' 1818. The sale may take place either in the presence of the persons interested, or in their absence after they have ^ received due notice of it. Ibid. ; G. P. G. 950. 131 tt. Minutes of the sale are drawn up, stating who of the persons interested were present, what notice was given to those who were absent, and specifying each object put up for sale, the price for which it was sold and the name of the purchaser. 2 Pig. 352 ; G. P. G. 951. 1320* If any of the co-heirs or co-partitioncrs are minors, the notice of sale must also be published and posted up, in the same manner as in cases of sale of moveables under execution. 41 Vict. c. 9 (Que.) : Whereas, in virtue of articles 1320 and 572 of the Code of Civil Pro- cedare, the sale of moveables belonging to a succession of which one of the co-heirs is a minor, cannot be made before the expiration of eight days to be reckoned from Sunday when such sale was announced b\' public notice, that is to say, the second Tuesday after the Sunday aiorc- said ; whereas, since the putting into force of this code, several of these sales have been made on the second Monday, instead of the second Tues- day, after the Sunday aforesaid, as was the custom previous to the code ; and whereas this irregularity may be prejudicial to the interests of a large number of families, and that, in oonsequeace, it is urgent that these sales should be made valid ; Therefore, Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows : 1. Every sale of moveables belonging to successions of which one of the co-heirs was a minor, made since the coming into force of the Code of Civil Procedure until the coming into force of this act, on the second Monday instead of the second Tuesday following the first Sunday on which such sale ought to have been announced, according to articles 1320 and 572 of the Code of Civil Procedure, is declared valid and shall be 80 considered in law ; provided always, that all the other formalities required by law shall have been observed. 2. This act shall not affect pending cases. I. OF BENEFIT OF INVENTORY, ARTS. 1821-1826. 709 1 the presence of I after they have 950. ,p, stating who of notice was given ,ach object put up and the name of tioncrs are minors, and posted up, in I moveables under the Code ol Civil Pro- cession of which one ot the expiration of eight sale was announced by after the Sunday atort i9 code, several of these seadof the second Tues • pm previous to the code; fal to the interests of a ■e it is urgent that these ijesty, by and with the enacts as follows : Lions of which one of the Into force of the Code oi this act, on the second ine the first Sunday on According to articles 1320 flared valid and shall be fall the other formahtiei CHAPTER THIRD. OF BENEFIT OP INVENTORY. 1321* Benefit of inventory can only be granted upon petition to the court or judge, stating that an inventory of the property of the succession will be or has been made, that the petitioner has not acted as heir, and that he believes it his interest not to confound his rights with the obligations of the succession. 8 Ed. & Or. 104; G. S. L. C. c. 78, ss. 2, 6, § 2. 1333* [The beneficiary heir is bound to give notice of his character as such, by an advertisement, as mentioned in article 1010.] 1333. (As replaced by 48 Y. c. 24.) Benefit of inventory is only granted on condition of rendering an account and paying to such person as may be entitled thereto what- ever moneys may be received ; and the beneficiary heir shall, if thereunto required, as provided by article 663 of the Civil Code, give security to the amount fixed by the court or judge. 2 Pig. 367-8. ]:S34. An heir under benefit of inventory, cannot sell the moveable property of the succession without observing the formalities required for the sale of moveables under execution. 2 Pig. 362 ; C. P. C. 938. 1325. The heir under benefit of inventory, cannot sell the immoveables without the consent of all the creditors and legatees of the deceased. 1330- [In cases where the beneficiary heir has any claims to exercise against the succession, he must cause a curator to be named, the same formalities being observed as are prescribed for the appointment of curators to vacant successions.] 1* , IK f\h 710 PROVISIONAL POBSBSBION, ARTS. 1827-1880. CHAPTER FOURTH. PROVISIONAL P0H8KSSI0N. 1837* Provisional possession, whenever it may be demanded, must be applied for by petition to the Superior Court, in the district in which the absentee or deceased person had his last domicile, or, if he had no domicile in Lower Canada, in the district in which the property is situate. 183M. The petition in the case of absentees must be accompanied with an act of notoriety, by three witnesseH duly sworn, and establishing the facts upon which the petition is based, and also with such other proof as the court may deem necessary. 1. Where a party petitions to be put in provisional poaseasion of aii estate or auoceaaion devolved to an abaentee, the petition must be aooompaniod by an inventory not only of the property of auch auccesaion, bat of the part belonging to the abaentee, in order that the oourt may determine the amount of aecurity to be given by the petitioner. Kxp. heOroBboii, 4 R. L. »89. 132tt* [Provisional possession cannot be granted until after notice has been given and published, in the manner required for the summoning of absentees, calling upon all persons who may have any rights against the Ruccession oi- the property in question to bring their claims before the court.] 1330* [The proceedings upon such claims and upon the petition for provisional possession are the same as upon ordinary suits.] r-1880. OF VACANT BUC0R8BION8, ARTS. 1881*1385. 711 H. never it may be ,n to the Superior enteo or deceased lad no domicile in h the property in absentees must be by three witnessen its upon which the other proof as tbe iaional poBsesaion ol a« the petition must be 'perty of such aucceBsion, [der that the court may [by the petitioner. Kj/'. lot be granted until Ished, in the manner lees, calling upon all Inst the succession or lir claims before tl»e uh claims and upon ive the same as upon CHAPTER FIFTH. OP VACANT 8UCCM88I0NS. I881* If the natural or testamentary heir renounces the succession, and no person comep forward to accept it within the delays allowed for making an inventory and deliberating ; or if there is no known heir, the succession is deemed vacant. 18S3* When a succession is deemed vacant, any creditor or legatee, or the heir who has renounced, may demand the appointmeiit of a curator to such vacant succession. I888> The judge proceeds to such appointment after taking the advice of the relations and creditors of the deceased, convened in the manner prescribed by such judge. 183'1. The curator is bound : 1. To make oath that he will faithfully and to the best of his ability administer the property of the succession and render an account thereof ; 2. To give notice of his appointment in the same manner as curators to the property of dissolvod corporations ; 8. To cause an inventory to be made, observing the same formalities as in ordinary successions ; 2 Pig. 510. 4. To caut»e the moveables to be sold, observing the same formalities as in the case of successions in which minors are concerned. 1339* He cannot sell the immov cables, nor shares or tiock in manufacturinff or ^financial associations, without the (onsent of all the parties interested. Ibid. I I'M ri^m 4 t, ii mm iihif'' >1U i 712 GENERAL PROVISIONS, ARTS. 1885-1839. i 48 Viot. c. 20 (Que.) : 14. Article 18U5 of the aaid code i» repealed and replaced by thu following ; *'1S3S. Ho may sell the imntoveableB and ahareii or ntook in manufac- taring or flnancial aHsooiations, by following the formivlitiea oHtubliHhod by law for voluntary licitations, upon the advice of the parties inturoHtod, present at a meeting convened for that purpose in the manner proscribed by the judge. Such sale as respects immoveables cannot be had except with the consent of the hypothecary creditors." 1886* Ho is bound to render an account of his admin- istration, in the same manner as any other curator, and also from time to time whenever required by a competent court or by a judge to do so. Ibid. 511. TITLE SEViiNTH. GENERAL PROVISIONS APPLYING TO THE DIFFERENT TITLES OF THE THIRD PART OF THIS CODE. 1387- In all proceedings under the different titles of the third part of this code, the delays upon summons are the same as those prescribed in article 890. 1338. All applications made or proceedings brought before a judge must remain in the records of the court nnd form part thereof. 1330. The prothonotary of the Superior Court may exercise all the powers conferred upon the court or a judge thereof; but any decision by such prothonotary is subject to be revised by a judge, upon application being made to that effect, after notice given to the persons interested. C. S. L. C. c. 78, ss. 24-5. OENERAL PROVISIONS, ARTS. 1889-1840. 718 nd roplftoed by the lad except with the The prothonotary hai oonourrent jiiriBfliotion with the ]x^^\^^o to pro- nounce an interdiction and to name a curator to the party interdirt«.>r.l, C. G. P. 465 does not ftpply to lach luattorH. Clement v. Francit, Vi 11. L. 607, 8. C. 1881. 12I40. [All decisions of the court or a judge are also subject to a review by three judges of the Superior Court, according to and in conformity with the provisions contained in articles 494 and following.] C. S. L. G. c. 86, s. 4 ; 27- 28 V. c. 89, s. 20. 41 Vict. c. 10 (Que.) : 1. Whenever in this province, an ab-intoRtate HUCcesBlon devolves, liaving property situate outside of its limits or debts duo by persons not residing therein, the heirs, or one or more'of them, may apply to the Superior Court, or to one of the judges of the court, in the district in which the deceased had his domicile, or if )io had none, to the Bu|)erior Court, or to one of the judges of the court in the district in which ho died, for " letters of verification " of the heirs to whom the succession has devolved. 'i. The application is made by a petition setting forth the death of the person whose succession has devolved the fact that he died without leaving a will, and having property situate outside the province, or debts due by persons not residing therein, tho persons who are his heirs, their relationship to him and their filiation, and praying for letters of verifica- tion which declare wliat persons have been proved to be the heirs of thi' deceased, and in what proiKtrtions . 3. The petition nMist be accompanied with an ailidavit of the petitioner, or uf a competent person, attesting the truth of ilie facts therein alleged. i. The petition, with a notice of tho time when it will bo presented, must bo served upon tlie other known heirs who reside in the province ; :uid a summary notice of the intended application, and of the time when it will bo made, must be inserted, once a week during four consecutive weeks, in one newspaper published in the lOnglish language, and in one newspaper published in the French language in the district. There must be an interval of at least five days between tho day o{ service of the petition and that fixed for the presentation thereof, with an additional day for each additional five leagues when the distance between the Court House and the place of the service exceeds five leagues ; and the day of such presentation must be at least thirty days from the last insertion of the summary notice. M i"iii i^ m ■1 \ ■i',i '^; 714 URNERAL PROVISIONS, ART. 1340. If 5. The petitioner must produce with the petition the Acts of Civil Btatus necessary to establish the allegations, and when any such Act of Civil Status cannot bo produced, the petition must be accompanied by an affidavit to justify its absence. 6. Any heir or his legal representative may enter an appearance, and may contest either the application or any allegation of the petition. 7. The intervenants are bound to plead within four days from their appearance, and the petitioner must answer within three days from the filing of the pleas, on pain in either case of foreclosure, unless a longer delay be granted by the irt or a judge. 8. Proof is made and tl j parties are heard according to the ordinary rules of procedure ; tlie written proof produced and the depositions, or the notes of the evidence must remain of record. 9. When the application is justified, the court or judge renders judg- ment granting " letter? of verification " which declare what persons have been proved and found to be the heirs of the deceased, and specify in what proportions. 10. Letters of verificatinii may be contested by an action to that end before the Superior Court, in the district where they were granted, by any heir of whom mention has been omitted, and who was an intervenant, and they may be either corrected or set aside by the judgment to be ren- dered in such action. 11. The declaration in an action in contestation of letters of verification, must be accompanied with an affidavit of the plaintiff or of a comi)etent person, denying the correctness of vhese letters, stating in what their incorrectness consists, and further attesting the truth of the facts alleged in tlie declaration ; and all the heirs mentioned in the contested IctterH of verification or their representatives must be impleaded. 12. The declaration and affidavit must be produced and filed at thu time of the issue of the writ ; and notice of the contestation under the signature of the prothonotary, nmst bo published in the same manner as the summary notice of an application for letters of verification. 13. When the action in ct)ntc.4t;ition of letters of verification is main- tained, the judgment eitlier c>>rrects them or revokes them. Corrected letters of verification have the same effect as the original letters. They may also bo contested by any heir who was neither an intervenant nor a party in any previous) action in contestation. 14. Except during the pendency of an action of contestation, authentic copies of " Letters of Verification" either original cv corrected, as tho case may be, shall be delivered, under the seal of the court, to all persons recjuiring the same, for use outside of the province, in all proceedings or circumstances, where it 's rocjuired to prove who are the heirs of the deceased or to obtain ancillary or subsidary letters of administration. Irs of verification is main- Isvokes them. Corrected original letters. They [her M\ intervenaut nor u L contestation, authentic final cr corrected, as tho If the court, to all persons [nee, in all proceedings or jrho are the heirs of the lers of administration. OF ABBITBATI0N8 IN OBNERAL, ARTS. 1341-1345. 715 TITLE EIGHTH. OF ARBITRATIONS IN GENERAL. 1341* Submission is au act by which persons, in order to prevent or put an end to a lawsuit, agree to abide by the decision of one or more arbitrators whom they agree upon. Pothier, Proc. 109 ; 1 Couchot, 30. 1. Under the clause or condition in policies of insurance, that, in case of dispute between the parties, it should be referred to arbitration, the courts are not ousted of their jurisdiction, nor can they compel the parties to submit to a reference during the progress of the suit. Scott v. ThK Phcmix Asmtrance Co., S. B. 152, K. B. 1823. 1343. Those persons only can enter into a submission who have the legal capacity to dispose of the objects com- prised in it. 1 Couc. 30 ; C. P. C. 1003. 1. The Code does not preclude parties from stipulating that the arbi- trators should hear the respective parties and their evidence, or declare them to have made default. Breakey v. Carter et ah, 4 Q. L. R. H32, S. C. 1878. 1343* The appointment of arbitrators by the court is regulated in the second part of this code. See ante arts. 341 et seq. 1344. Deeds of submission made out of court must state the names and additions of the parties and arbitrators, tho objects in dispute, and the time within which the award of the arbitrators must be given, Poth. Proc. 109 ; contra C. i'. C. 1007. 1345. Submissions must be in writing. 109 ; C. P. C. 1005. Poth. Proc. '■ t^'fJ 'vtftae ^mm 716 OF ARBITRATIONS IN GENERAL, ARTS. 1845-1346. 1. A reference to arbitrators required that they shoald finally adjust, settle and determine the precise state of accounts between the partieB, and the precise amount which either of the parties should pay to the other ; but the arbitrators by their award merely determined in a general way how the matters in dispute should be adjusted without determining anything precisely — Held, that no action would lie on such an award. Colson v. Ash <& Torrance, 18 L. C. J. 281, S. C. 1346. The arbitrators must hear the parties and their proofs respectively, or establish a default against them, and decide according to the rules of law ,* unless by the submis- sion they have been exempted from doing so, or unless they have been named as mediators. [The witnesses to be examined before the arbitrators may be sworn before the prothonotary or the Clerk of the Circuit Court of the locality, or before a Commissioner of the Supe- rior Court] . Poth. Proc. 199 ; C. P. C. 1009, 1019. 1. The award of an arbitrator and amiable compositeur which- does not state that he heard the parties, is illegal. Farmer v. O'Neill, 22 L. C. J. 76, S. C. 1878 ; 1 Legal News, 220. 2. Where a reference to arbitrators allowed the parties two days to produce papers, &c., and the award was made by the arbitrators on tlie day following the reference without their having had any communication with the parties -Held, that such award was premature and null. Chap- mati etal. v. The Lancashire Fire Insurance Co. <& Fraser, 13 L. C. J. 30, S C. 1868. if ••j* 3. An order for execution was asked from the court upon an award made under the Corn Exchange Act. Under that Act, the Corn Ex change has power to appoint arbitrators to settle disputes between it members. Certain formalities are prescribed, and among others tliai tlu arbitrators must be sworn, and that there must be a submission in writing at the commencement of the proceedings, and all questions connected with it may be loviewed within five days after the award itself. The award, if confirmed, is then a final one, and execution may issue upon it. The arbitrators, on the 28th of June, made an award against the defendant, which was confirmed by the Board of Review. The plaintiff now moved for an exequatur, and the defendant answered, alleging irregularities, among others that the arbitrators had not been sworn. Defendant, however, had objected to nothing until after the BkV/a.rd— Held, that as the formalities had not been complied with the 1346-1346. Bhoald finally adjust, a between the parties, jartiea should pay to d merely determined Id be adjusted without ction would lie on such i8l, S. C. e parties and their t against them, and less by the submis- g so, or unless they the arbitrators may I Clerk of the Circuit issioner of the Supe- 1. 1009, 1019. ompositeur which does not mer v. O'Neill, 22 L. C. J. .the parties two days to by the arbitrators on the had any communication emature and null. Chap- Fraser, 13 L. C. J. 30, S ;he court upon an award that Act, the Corn Ex ittle disputes between it .nd amon« others that tlu bo a submission in writinj; . all questions connected r the award itself. The execution may issue upon made an award against Board of Review. The the defendant answered, arbitrators had not been } nothing until after the t been complied with the OF ARBITRATIONS IN GK ^.RAh, ARTS. 1846-1348. 717 plaintiff could not succeed, and th^ cotion would be rejected, but without costs, as defendant had not objected until after he had tteen what the award was. Mitchell v. Butters, 2 R. C. 480, S. C. 1872. 4. An award in arbitration is not absolutely null because the witnet-ses examined have not been legally sworn. Tremblay v. Tremhlay, 3 L. C. R. 482, S. C. 1853. 5. In an action brought upon a report of arbitrators the defendant may contest the validity of the report, where it does not set forth that the witnesses have been heard, by alleging that the arbitrators refused to hear his witnesses and the defendant will be allowed to prove such refusal. Ostell V. Joseph, 9 L. C. R. 440, Q. B. 1859. 6. When several matters are in dispute, and are referred to arbitrators, they must decide upon the whole of them, and must hear the parties on all of them, otherwise the court will set aside the award in such case. Fairfield v. Butchard, 3 Rev. de L6g. 357, K. B. 1821. See Holland v. Cassidy, 7 L. N. 70, S. C. 1884. 1347* During the delay fixed by the submission the appointment of the arbitrators cannot be revoked, except with the consent of all the parties. If the delay is not fixed, either of the parties may revoke the submission when he pleases. 1 Cou. 30 ; C. P. C. 1008. 134H. The submission becomes inoperative : 1. In the case of the death, refusal, withdrawal or inability to act of one of the arbitrators, unless some clause provides that it shall avail notwithstanding, or that such arbitrator shall be replaced by another, chosen' by the parties or by the remaining arbitrator or arbitrators, or otherwise ; 2. In the case of the decision not being given before the expiration of the delay fixed ; 3. By the failure to agree, if the appointment of a third arbitrator has not been provided for ; 4. By the mutual consent of the parties ; 5. By the loss of the object which forms the subject of the submission ; 6. By the extinction of the obligation which formed the subject of the submission ; «•' Ki'mii 718 OF ARBITRATIONS IN GENERAL, ARTS. 1348-1852. 7. By revocation in the case of the preceding article. Bonnin, 647 ; Poth. Proc. 100; 1 Cou. 30; C. P. C. 1012. 1841I. Arbitrators cannot be recused, except for reasons which have arisen or have been discovered since their appointment. C. P. C. 1014. 1890- If the arbitrators fail to agree and the appoint- ment of a third arbitrator has been provided for, such appointment is made in conformity with the submission, and the case is examined over again. 1351. No award of arbitrators can be rendered when there are more than one, unless the two named or one of these and the third arbitrator agree upon each item of the award. 1 Con. 31. 1. An award by two of three arbitrators is sufficient. Mfiiklyohn v. Younft, 1 Rev, de Log. .'ilO, K. B. 1811 ; S. R. 43. I35S. Awards of arbitrators are made out in notarial form, or deposited with a notary, who draws up an authentic act of the deposit, and they must be given or pronounced to the parties, or served upon them, within the delay fixed by the submission. Poth. Proc. 109 ; 1 Cou. 30 ; 1 Bournier, 235 ; C. P. C. 1026. 1. The deposit of an award cannot be made by one who has ceased to be arbitrator. Se'vifftiy v. Provencher, 1 Q. L. R. 122, S. C. R. 1876. 2. In Lower Canada, notaries have power to receive a report of arbi- trators, arv.l to give certified copies of the swearing in of the arbitrators annexed thereto, Tremhlaij v. The. Chumplain and St. Lawrence Railway Company, 5 L. C. R. 21J), Q. B, IS.').'). •S. And such power was specially recognised as belonging to them by the statutes 2 Will. IV. cap. 58 & 13 & 14 Vict. cap. 114. Hoy v. The Champlain and St. Lawrence Itailway Company, (5 L. C. R. 277, Q. B, 185t). 4, Where to an action on an award or compromise, the defendant pleaded want of service of the award within the delay fixed by law and by the terms of the compromise — Held, that in consequence of such default of service, the award was absolutely null. lilanchet et ux v. Cluirron, 4 L. C. J. 8, Q, B, 1842, Rficient. Mdklejohn v. OF ARBITRATIONS IN GENKRAL ARTS. 1852-1854. 719 6. An award of arbitrators and amiable* compositeurs, not sigi ified to the partieb interested until after tho delay limited by the agreement for the rendering of the award, is null and void, notwithstanding such award may have been rendered within the prescribed time. Chapman v. Hodson, <» L. C. J. 112, S. C. 1864. 1353. Extra-judicial awards of arbitrators can only be executed under tlie authority of a competent court, upon a suit brought in the ordinary manner, to have the party condemned to execute them. 1354* [The court before whom such a suit is brought may examine into any grounds of nullity which afifect the award, or into any questions of form which may prevent its being homologated ; but it cannot enquire into the merits of the contestation; nevertheless, when a penalty has been stipu- lated in the submission, the cou't may do so whenever the party contesting has paid or tendered the amount of the penalty either to the party who accepts the award or into court.' Poth. Proc. 110 ; 1 Cou. 30 ; 3 L. C. E. 432. 1. A party who has snbmiuted a matter to arb'urators cannoii, after the arbitrators have made their award, call for the dec's'on of the oidinary tribunals without previously paying the penalty stipulated in the arbitra- tion bond, unless the award be absolutely null. Tr^mhiaij v. Tiemblay, 3 L, C. R. 482, S. C. 1863. 2. The Superior Court has jurisdiction over an arbitrator appointed by the Dominion Government under section 142 of the British North America Act, while acting as. such in the Province of Quebec, and may inquire whetl/er such arbitrator is in the legal exercise o2 his office. The Attorney - iieneral v. Gray, 15 L. C. J. 30fi, 8. C. 1871. u iH I. •!, 720 ADMINISTRATION OF JUSTICE, ART. 1865. TITLE NINTH. DIVISION OF LOWEB CANADA INTO DISTEICTS FOB THE ADMINISTEATION OF JUSTICE. 1355. [Lower Canada is divided into twenty districts, in the manner set forth in the following schedule, the first column whereof contains the name of each district ; — the second column, the places which are comprised within the district ; — and the third column the name of the place at or near which the sittings of the Superior Court are held, and where the district court-house and gaol are situated :] SCHEDULE. NAMES OF DISTRICTS. Ottawa. Montreal , Terrebonne. PLACES COMPRISED. Counties of Ottawa and Fontiac. Counties of Hochelaga, Jacques Cartier, Laval, Vaudreuil, Soulanges, Laprairie, Chambly, Verchires; and the City of Montreal. Counties of Argenteuil, Two Mountains, and Terrebonne. CHIEF PLACES. Village of Aylmer. City of Montreal. Village of St. Scholas- tique. EICTS FOR THE DE. venty districts, in jhedule, the first ich district ;— the prised within the of the place at or lurt are held, and re situated:] CHIEF PliACES. tillage of Aylmer. City of Montreal. Village of St. Scholaa. tique. DIVI8I0N OF LOWER CANADA INTO DISTRICTS, ART. 1865. 721 MAHIB or OISTRIOTB. Joliette.. Bichelien. Three Rivers. Quebec . Baguenay. Chicoutimi. Oaspf Bimouaki.... Kamouraska. Montmagny . PLACES COMPRIBID. CHIEr-PIiAOIS. Counties of L'AsBomption, Montcalm, and Joliette. Counties of Richelieu, Yamaska, and Berthier. Counties of Maskinonge, St. Maurice (including City of Three Rivers,) Champlain, and Nicolet. Counties of Portneuf, Quebec, Montmorency, Levis, Lotbini6re ; and the City of Quebec. Counties of Charlevoix, and Saguenay. County of Chicoutimi. Counties of Gaspi, and Bona venture. County of Rimouski. Counties of Kamouraska, and Temiscouata. Counties of L'lslet, Montmagny, and Bellechasso. Town of Industrie. Town of Sorel. City of Three Rivers. City of Quebec Parish of St. Etienne de la Malbaie or Murray Bay. Chicoutimi. New Carlisle, in the Co. of Bonaventure. Perc6, iu the County of Ga8p6. Parish of St. Germain de Rimouski. Parish of St. Louis de Kamouraska. Village of Montmagny. s '■fa 46 F. C. C. P. 722 DIVISION INTO DISTRICTH, ARTS. 1855-1356. NAMES OK DI8TBICTH. I'LAOES COMl'UIMED. CHIEK PIAOKS. Beauo6 Counties of Buauce, and Dorchester. Counties of Megantic, Arthabaska, and Drummond. Counties of Richmond (including the town of Sher- brooke), Wolfe, Compton, and Stanstead. Counties of Shetford, Missisquoi, and Brome. Counties of St. Hyacinth, Bagot, and Bouville. Counties of St. John, Napierville, and Iberville. Counties of Huntingdon, Beauharnois, and Chateaugaay. Parish of St. Joneph de la Beauce. Pariah of St. Christophe d'Artbabaska. Town of Sherbrooke. Arthabaska St. Francis Bedford Nelson ville. in the town- St. Hyacinth Iberville ship of Dunham.] City of St. Hyacinth. Town of St. John. Beauharnois Town of Beauharnois. 1356. I If the name of the place which is the chief- place of a district is changed, such place nevertheless con- tinues to be the chief-place under its new name. If the name of such place has been changed since the passing of the Lower Canada judicature acts of 1857 and 1858, and is different from that mentioned in the above schedule, the chief-place must be designated by the name given by s';*:!. change.] 1356. CHIKl' PLACKS. Bh of Bt. Joneph do Beauce. ishofSt. Chriatophe Artbabaaka. vn of Sherbrooke. FINAL PROVISIONS, ARTS. 1357-1860. 723 ,l9onviUe.inthetowu ship of Dunham.. ity of St. Hyacinth. own of St. John. own of Beauharoois. lich is the cbief- nevertheless con- lame. If the name Assingof the Lower fs, and is different ale, the chief-place r 6Kd\ change.] 1357* fTbe officers connected with the administration of justice in each of the new districts created by the Lower Canada judicature acts of 1857 and 1858 are the same as in the old districts subsisting immediately before the time when such new districts were constituted, and proper persons may in like manner be appointed to fill such offices ; and all the provisions of law touchinc; such offices respec- tively, as well with regard to the security to be given by the persons holding the same, or the appointment of deputies, us with regard to other matters, extend to the like officers in the new districts, subject always to any provisions of any other act then in force. ; 135M. [The hauUeue of Quebec, as defined in chapter 75 of the Consolidated Statutes for Lower Canada, is and always has been part of the district of Quebec. The banlieue of Three Rivers is and always has been part of the district of Three Rivers, i FINAL PROVISIONS. 1350. The forms contained in the appendix to this code, whether in connection with this code or with the Civil Code, or others to the same effect, may be used in the cases to which they are intended to apply. 1360. The laws concerning procedure in force at the time of the coming into force of this code, are abrogated : 1. In all cases in which this code contains any provision having expressly or impliedly that effect : 2. In all cases in which such laws are contrary to or 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 relate : •I'll ■*^tl1 724 PINAL PROVISIONS, ARTS. 1860-1861. I Except always that as regards proceedings, matters and things anterior to the coming into force of this code, and to which its provisions could not apply without having a retroactive effect, the provisions of law which without this code would apply to such proceedings, matters and things remain in force and apply to them, and this code applies to them only so far as it coincides with such provisions. Inasmaoh as the code of procedure does not attach any penalty for not filing the statement required by C. C. P. 760, the penalty imposed by 2874 of the Civil Code, and C. S. L. C. c. 87, s. 12, sub-s. 2 cannot bo enforced. Carter v. Molion, 27 L. C. J. 167, P. C. 1888. 1861. If in any article of this code founded on the laws existing at the time of its promulgation, there be a difference between the English and French texts, that version shall prevail which is most consistent with the provisions of the existing laws on which the article is founded ; and if there be any such difference in an article changing the existing laws, that version shall prevail which is most consisteut with the intention of the article, and the ordinary rules of legal interpretation shall apply in determining such intention. END OF THE CODE OF CIVIL PROCEDURE. OFFIOBRS OF THE COURT. 725 iga, matters and this code, and to ithout having a lich without this kttera and things is code applies to provisions. h any penalty tor not , penalty ImpoBed by L2, »ub-B. a cannot bo 888. lunded on the laws [lere be a difference , that version shall le provisions of the tided ; and if there anging the existing ia most consistent Ithe ordinary rules determining such RULES OF PRACTICE or THE SDPEBIOS GOIT FOR LOWER CANADA. CHAPTER I. OF THE OFFICERS OF THE COURT. I. That the Queen's Coansel, and ba .-iBtera who practise in this Court, do appear when in court, habited in black and in such robes and bands as are worn by the Queen's Counsel and barristers in Westminster Hall, as heretofore hath been used, and that no Queen's Counsel, or barrister, be heard in any cause who is not so habited. II. That every attorney practising in this court, do file in writing, in the office of the prothonotary, an election of his domicile as such attorney, at some place within a mile of the Court House, at the place where be practiseH, tind that in default of his so doing, he ahall be considered to have elected his domicile as such attorney for all intents and purposes in the office of the prothonotary at such place. C. C. P. art. 85. III. That the prothonotary of this court, do appear when in court, habited in black and in such robes and bands, as are worn by the pro- thonotary in Westminster Hall, as heretofore hath been used ; that the slieritT, when in court, do appear habited in black with his robe, his wand of office and sword as heretofore hath been used ; and that the crier, when in court, do appear habited in black and in such robe as is worn by tliat officer in Westminster Hall. IV. That the offices of the prothonotary and of the sheriff be open on every juridical day during term, and also in the districts of Que- bec and Montreal, on every Monday being a juridical day, from the hour of eight in the morning until the hour of six in the afternoon ; 726 OKNBRAL ORDBRS. I and in the DlatrioU of Quebec and Montreal, during vaoatinn (Monday* excepted) from the hour of nine in the morning until the hour of four in the afternoon of every juridical day, and in the Diiitricte of Three Ilivent, St. Francis, and OaapA, daring vacation, from the hour of nine in t\w mornind until noon, and from the hour of two to the hour of four In tlm afternoon. V. That the aheriff, the prothonotury and the crier do personally attotid in coart, in their respective places, ifc die in diem, during each term from the opening until the rising of the court, and in like manner during all sittings of the court held in vacation. VI. That no barrister or attorney, prothonotary, sheriff, crier, bailiff or sheriff's officer, shall be bail or surety in any action or proceediii^n cognizable by this court, or by any judge thereof. VII. That all orders and rules for the conduct and reguliition of the Kheriff in the execution of his duty, shall extend to the coroner, in all cases in which such duty shall be executed by him. C. C. P. art. 4(US. CHAPTER II. GENERAL 0RDER8. VIII. That the rules and orders of praotic<« of this court shall be fairly entered by the prothonotary in a book to bu by him kept for that purpose, and all decisions of this court on points of practice, shall also be oiitertxl by the prothonotary, when so directed by tlie court, in another book to Im by him kept for that purpose — to each of which books there shall be i«ii index, and all practitioners of this court shall, during office houn;, iiav» access thereto, and therefrom be allowed to take extracts and copies gratU. C. C. P. art. 29. IX. That all writs and other practical forms, which are or shall be settled by this court, shall in like manner be fairly entered by the protho notary in a register to be by him kept for that purpose, to which then* shall be an index, and all practitioners of this court shall at all time a, daring office hours, have access thereto, and therefrom be allowed t<; tukt* extracts and copies gratit. X. That every vilf ul breach of an order or rulejof practice of tluH court (for which no fin<' or other specific punishment is provided in the body of each role or orders »}x9.)\ be considered a contempt of court, and punished accordingly. CKRTIFICATS8 OF RltRVIOE, ETC 727 vaoAtinii (Mo«\d»y» the hour of four In iota of Three Riven*. hour of nine In th*' J hour of four In thu r do personally attend iring each term from Le manner during all yr. Hherlff. orler. bailiff action or prooeedln«H and regulation of the to the coroner, In all . C. C. P. ftrt. 4tMJ Ilia court shall be fairly n kept for that puriwso, je, shall also be ontenxl |t. in another bo<)k to Iw books there shall be an iring office houn;, have ,ke extracts and copies XI. That ill inputations of time no fractions of a day i>e allowed, nor shall any Sunday or binding holiday (/He d'obliitnfion) be reckoned nnleM otherwise provided for by law, C. C. P, art. 'J4. XII. That whenever any delay shall expire on a non.juridioal day, «ach delay shall be enlarged to the next juridical day. C. C. P. art. 34. XIII. That no paper of any description shall be received by the prothonotary, in any cause, unless the same be regularly docketed by mentioning the title a.id number of the cause, the general description of Kuch paper,and 'he (tarty filing the same. CHAPTER III. OF PROCESS AD RESPONDENDUM. XIV. That a register of all and every process ad retpondendum whatso- ever, issued [from this court, specifying the names of the parties, the amount demanded, the cause of action, and the return day of each process respectively, shall be kept by the prothonotary, to which all per- sons, during office hours, shall hare access grati». XV. That no process ad renpottdenduin, of any description, shall issue until an (appearance for the party reciuiring such process, and a pracipe for the same, be Hied in the offtce of the prothonotary. G. C. P. art. 44. XVI. That no process ad renpondeiiduiii, founde<1 upon affidavit, shall issue in any suit until the affidavit upon which such process is founded be filed by the plaintiff in the office of the prothonotary. 1 r r which are or shall be - entered by the protho Lrpose, to which ih^cv Lrt shall at all timts. Hrom be allowed t. taku Uof practice of this court I provided in the body of It of court, and punished CHAPTER IV. OF CERTIFICATES OF SERVICE, ETC. XVII. That every affidavit m o«rtificate of service shall particularly describe the manner, place and ^me of Rervice, in letters, and also the distance from the place of ser^ce to the court house at which the party is required to appear. C. ( ■ 1 art. 78. / 728 APPEABANCE — AND BAIL. XVIII. That all aervioes on the attorney of any party be made be- tween the hours of nine a.m. and six p.m., from the twenty-first of Maroh to the twenty-first of September; and between the hours of nine a.m. and five p.m. during the remainder of the year. That every service of process and other service on any party to a suit be made between the hours of eight in the forenoon and the hour of seven in the afternoon. G. C, P. art. 55. CHAPTER V. ON APPEARANCES — AND OF BAIL. XIX. That of every appearance which shall be filed for a defendant a duplicate or certified copy shall be served during the same day upon tlie plaintiff's attorney. C. C. P. arts. 83, 462. XX. That no change of attornies shall in any case be allowed without leave of court, or of a judge in vacation. C. C. P. art. 200 et seq. XXI. That an attorney who shall appear for any person shall not, without leave of court or a judge in vacation, be permitted to withdraw] from the suit in which he shall have so appeared. C. G. P. art. 201. XXII. That in every suit in which a party shall cease to be represented by attorney he may be compelled, by rule of court, to substitute an attorj ney or an appearance in person ; and in default of a plaintiff so doing, hi.j action shall be dismissed with costs, i\ savf t\ ne pourvoir ; in default of defendant so doing it shall be competent for the plaintiff to proceu ex parte. C. C. P. art. 203. XXIII. That no surrender of any defendant, by himself or by his baij shall be valid or effectual, or allowed as such, unless such surrender made in open court, or before one of the juclj,'es of this court in vacatioil nor unless the court or such judge before whom such surrender shall ll ms,de shall have made an entry or minute of such surrender, and shiJ have coniniittod such defendant thereupon to the custody of the sheriff il discharge of such bail ; and in every case of surrender made before atij judge of the court, the niinute of such surrender shall forthwith returned into the office of the prothonotary, and there be filed of recoj in the suit to which such minute shall relate, apd a copy of such minu shall relate, and a copy of such minute shall, by the prothonotary, j delivered with such defendant to the said sheriff. G. G. P. art. H31. any party be made be he twenty-first of March te hours of nine a.m. and b every service of process e between the hours of the afternoon. C. C. P. r. )F BAIL. I be tiled for a defendant a ing the same day upon the ,ny case be allowed without. C. P. art. 200 et aeq. r for any person shall not, , be permitted to withdraw .Ired. C. C. P. art. 201. y shall cease to be represented court, to substitute an attor- ault of a plaintiff so doing, hu ,i«ci.o«rro.r; in default of* for the plaintiff to proceed ant, by himself or by his bail, ach, unless such surrender be a<-es of this court in vacation. ,hom Huch surrender shal bo of such surrender, and shah to the custody of the shenftr^ ,f surrender made before aijv surrender shall forthwith b. , and there be filed of record .t'e. apd a copy of such m.nute shall, by the prothonotary, be sheriff. C.C.P.art.8;n. EXHIBITS AND COMMUNICATION OF PAPERS. 729 CHAPTER VI. OF EXHIBITS AND COMMUNICATION OF PAPERS. XXIV. That all paper-writings whereon any declaration or other pleading is founded, or duly certified copies of such papers, shall, with lists thereof, be filed together with such declaration or other pleading respectively, and not afterwards, unless by the special permission of the court ; and that all other paper- writings which any party shall see fit to produce in evidence, togeth«>r with the originals of all actes hoim seing prtt'/, copies of which shall have been filed as hereinbefore directed, shall be exhibited and filed with lists before the enquke of the party producing the same be closed. C. C. P. art. 99, et seq. XXV. That every list of exhibits shall be an index to all the exhibits therewith filed, by number, title, date and description, under the signa- ture of the attorney or party filing such exhibits, and any exhibit whicli shall not be so mentioned in such list shall not be received. C. C. P. art. Lre be) or within a reason, rder or commission be return. U the parties to proceed n, [d issued, unless -ood cause to feet. C. C. P. art. 316. time, have a ri«ht by ^^- i vacation, to cause the retun. nless good cause to the con. lor commission, issued at tlu led until the plaintiff's cmi-M. Lvice of a rule for sementd^ |e within the distance of e 1 be one intermediate jund u L day of return, and whe. beyond that distance, one intermediate juridical day as above, and also one intermediate juridical day for every five leagues of distance.— (Additional rule promulgated subsequently : Quebec, June, 1864.) That a party served with a rule to answer interrogatories upon faita et articles, shall give his answers before the closing of the enquHe of the party who has obtained the rule, and that no answers shall be afterwards received, except by leave of the court, obtained on a special application for the same. C. C. P. arts. 223, 226, 445. CHAPTER X. OF THE INSCRIPTION OF CAUSES FOR HEARING. L. That there be kept in the office of the prothonotary a roll to be called the r6le de droit, upon which shall be inscribed all causes for hearing, upon any issue of law, or upon the merits, or other matter. LI. That no contested cause shall be heard upon any inscription on the rSle de droit unless two juridical days shall have intervened between the inscription and the day appointed for the hearing. C. C. P. art. 462, LII. That 80 soon as any issue of law is perfected, either party may inscribe the cause on the rdle de droit for hearing on such issue ; and if on the day appointed for the hearing, the party by whom such law issue hath been raised shall not appear, and his adversary shall appear, the pleading whereby the same hath been raised shall be dismissed with costs. If neither party be present the inscription shall be discharged. LIIJ. That so soon as enquHe upon any preliminary exception shall be closed, either party may inscribe the same upon the rSle dc droit, for hearing on the merits of such exception, and if on the day appointed for the hearing thereof, the party excipient shall not appear, his exception shall, on the application of the adverse party, be dismissed with costs. If neither party appear, the inscription shall bo discharged. LIV. That as soon as the enqu^te in any contested cause shall be closed, either party may inscribe such cause on the r^le dc droit for hearing on the merits, and if, on the day appointed for the hearing thereof, the plaintiff shall not appear, his action shall, on the application of the adverse party, bo dismissed with costs. If neither party appear, the inscription shall be discharged. •IP m. 784 OF MOTIONS. CHAPTER XI. OF MOTIONS. LV. Tliat no motion be received or lieard unless previous notice there- of, of at least one day, be given to the adverse party, excepting the motiong whereupon side-bar rules may be obtained, and those hereinafter specially mentioned. LVI. That the parties shall not be heard on any rule unless one day shall have intervened between the service of such rule and the day appointed for the hearing thereof.* LVII. That every motion founded on special matter shall contain the grounds on which such motion is made, and no party shall be i)ermitteil to urge any ground in support of a motion not set forth in such motion. LVIII. That the following motions, being motions of coume, may bo made and filed in the office of the prothonotary, and be by u in received, and rules entered thereon, in the same manner as if made in open court : jVv 4, it. (i. 7. H. !». 10. 11. 12. i:j. 14. lo. Ki. For the sheriff to return a writ — nisi ; For particulars — tiixi ; For security for costs, the plaintiff being a person without that part of the province, heretofore Lower Canada, and stated ao to be, in the declaration — iiiai : C. C. P. art. 129. To give security for costs — nini ; For a jury trial— «»«/ ; C. C. P. art. 350. To strike a cause from the role de droit or role dex enqttite*—niiii ; For a reference to expertn — nid ; C. C. P. art. 322. To set aside or confirm a report — nini ; C. C. P. art. ;{45. To pay money into court — nisi ; To file a retraxit — nini ; To dismiss for want of proceedings — nini ; To discontinue on payment of costs — nini ; C. C. P. art. i!iO. For acte to party that he does not contest an opposition — nisi , C. C. P. art. ">8«. For a rule on defendant for main levee on such opposition — nini ; To homologate a report of distribution — nini ; C. C. P. art. 74'J. For the sheriff to bring in the body — nisi. *One clear day should be allowed between the service and return of a rule for contempt. Fair v. Casseh, 4 L. N. 102, S. C. R. 1881, TRIALS BY JURY. 735 I previous notice there - r, excepting the motions )9e hereinafter specially ny rule unless one day mch rule and the day natter shall contain the party shall be permitted t forth in such motion. lotions of cour»e, may be and be by » »n received, tier as if made in open iins a person without that ,r Canada, and stated so . P. art. 12«. 31- role (lex enqn^tex-nin ; art. 322. \c. C. P. ftrt. ;U5. LIX. That the following motions may be made and adjudicated upon without notice — to the adverse party ; 1. For judgment pursuant to confession, or to a verdict of jury ; C.C. P. arts 06 and 425 2. To defer or refer tke germeiit decittiore ; C3. C. P. art. 444. 3. For faitii et artUle* : C. C. P. art, 222. 4. To obtain acte ' the court. LX. That a party intending to produce any affidavit or other paper- writing in support of any motion or rule, shall with the notice of such motion or copy of such rule, serve on the opposite party copies of the affidavits, or other paper-writings intended to be produced, and in default of his so doing, the opposite party shall be entitled to delay, until the next day, to take communication of such papers. C. C. P. art. 4(52. LXI. That the validity of every report of expert* or award of arbitra- tors shall be decided upon a motion, or uiM)n a rule nisi to homologate the report, or to set the report aside, as the case may be. C. C. P. prt. :i47. LXII. That every application for security for costs shall be made within four days from the appearance of the party making such applica- tion. C. C. P. art. 107. LXIII. That all costs to which, in any case, a party is entitled upon a motion in any way, be asked for at the time at which such motion is made and heard, and not afterwards. 'fi CHAPTER XII. OF TRIALS BY .JURY. a Li ; C. C. P. art. 450. [test an opposition-" isi . In such opposition— Hisi ; -ni»i; CO. P. art. 749. [T^rvice and return of » S. C. R. ISf*!- LXIV. That in every cause wherein a trial by jury may by law be had, the party desiring such trial shall declare his option, either by his decla- ration or plea, or by motion to be made within four days after the issue is perfected ; and after the said four days, either party may move for the appointment of a day for trial and the issuing of a venire facian. C. C. P. nrt. 3")0. LXV. That with every such motion the party shall be bound to de- posit, in the hands of the prothonotary, the sum of five pounds, six shillings and eight pence, to be distributed as follows: — To the pro- thonotary, for striking the jury, for the writ of venire facias, for calling 736 TRIALS BY JURY. a \' and gwearint; the jury, and for recording the verdict, twenty shillingB ; to the sheriff, for his services, according to the tariff, twenty shillings ; to the crier, six shillings and eight pence ; and for the jurors, the sum of three pounds, the amount allowed by law. C. C. P. art. 866. LXVI. That the sheriff shall not be bound to summon such jury until a sum of money be placed in his hands, sufficient to pay the costs of sum. moning such jury. LXVII. That any difference respecting the amount of the sum to bo so deposited be determined by one of the judges. LXVIII. That if the sum so de^Kisited be more than sufficient to pay such costs, tlie surplus shall be returned to the party who deposited the flame, and if it be insufficient, the balance shall be paid to the sheriff before the jury shuU be sworn. LXIX. That the striking of the jury shall take place in the office of tli& prothonotary. C. C. P. art. 307. LXX. That the party who obtains an ovder for renire facian shall give a notice to the opposite party, of at least one day, of the time appointed for the striking of the jury, but the want of such notice shall not prevent the striking of the jury, if the party entitled to notice do not object to such want of notice. LXXI. TImt if the attorney of either of the parties make default appear before the prothonotary at the time appointed for the strikinj^ the jury, or appearing, shall refuse to strike out from the list of jurors, such cause, the names of twelve, or of any lesser number of such jurors the prothonotary, in the absence, or on the refusal of such attorney, shall strike out of the said list of jurors, twelve on behalf of the party of such attorney, in the manner directed by la"", or such lesser number as the attorney shall refuse or neglect to strike out. C. C. P. art. 370. LXXII. That in every case in which a trial by jury shall be ordered two days at least before the day appointed for such trial, /rtc/Hms or paper books containing a statement of the facts to be proved and of the author ities in support of the demand and of the defence, be delivered by tin parties respectively, sealed up, to the prothonotary. to be by him forth with delivered to the judge whose duty it may be to preside at the trial c such case. C. C. P. art. 393. LXXIII. That so soon as the venire facias shall be returned the partie shall be called, and, if neither party shall appear, the jury shall b forthwith discharged ; but if the plaintiff shall appear and tli defendant, being so called, shall not appear, the default of such di lot. twenty BWUinga; to •iff, twenty BhiUinga; to the jurorB, the sura of , p. art. 365. summon Buoh jury until ttopaytheooBtBolBum. momitoftheBumtobeso ore than Bufficient to pay a party who depoBited the mil be paid to the sheriff ake place in the office of thf ,, or .•..«<•-. /ao.-««BhallKivea ay.olthetimoappomtedor /notice Bhall not prevent the notice do not object to such the parties make default to appointed for the stnking of lout from the list of jurorB.m le ser number of such lurors Refusal of such attorney, slml l^behalf of the party of such ^ such lesser number as the C. C. P- a'^*" '^'^^' lial by jury sball be oraeml lor such trial, /«cM"«« or papei '^r, the deI.»U of »»* * OPPOSITIONS AND EXKCUTIONH. 787 feiulant Bhall bo recoulod, iind thereupon the evidence of the plaintiff shiill bo hoard <••€ parte, the verdict of the jury taken thereon, and judg- nHMit ontorcd an to liiw and juHtico hIiuH apprrtiiin. And if the dt'fondant, hoiiij4 HO called hIiuI] iq)iH!nv, ami llu! plaiutiff, bcint; called. hIuiU not niiiioiir, the default of such iilaiiitit'f Hhall bo recorded and judgment of iion-Huit therciipon cMitered in due course, disniissin;; Kndi plaintiff, aituf ,( »• poiirroir, witii costs t.' tlie defendant. (!. C. 1*. i;rt. H',)i. LXXIV. Thfit in every cnse in wliich a jury sliuU he Kworn, and the niaiutit'f in tsiicli cause Hliali elioosct at any time l)efor(! the verdict of Kuch jury HJiall bo ^;iven, to lun'onie nou-suit, and, for that purpose, hIihU witlulraw from the coui't, sucli iilaiutitf sliall he called, and, not appear- itij,', tl;o default of such plaiiitilt' shall lie I'tcorded, and jiidf^ment of non- unit siiall 1m3 ontei'ed in duo course. disuuHning such i)liuntit'f, Mtiij t) se voiii'voii', with costs to tlie defenil.uil. ('. ('. I', art. if'.l.j. lAXV. 'riiH.t a motion for juiljjnjcnt upon a verdict slt,i,ll iu)t bo uiado until after the expiration of foui- dayw in term from the day on which siu'h verdict shall be recorded. C. C. P. art. 4'21, l.XXVI. That every nu)tion iov a new trial, after verdict, be nnide on or belore the fourth day in term next alter tlic day on which such verdict shall bo recorded. C;. C 1'. ai t. 1'2;J. LXXV'II. Tliat every motion in arri'-^t of judgment after verdict be niiule on or before the expiration of tin.' Iwnrth day in term next after the diiv on which sr.ch vi.'rdict shall he I'ecnnkil ; evcept when a motion for a new trial shall ha\c been niad(.', in which case such motion in arrest of )iult,nnent shall b" made on the second day next after the day on which such motion for a new trial slinll have been disposed of. C C. P. art. 124. CIIArTKl' XII. OPPOSITIONS .\Xi» KXKCUTIONS. LXXVIII. 'J'hat no writ of execution shall issue until a pi^ecipe for such wriii be filed in the office of the prothonotary, and that every such writ be endorsed or signed by the attorney or person by whom such writ shall be so snetl out. C C. P. art. 015. LXXIX. That a regi; tor of all writs of execution issued from this court, specifying the description of each writ, the parties to the cause 47 F. c. c. p. ^ ''Sill' MM! i t< II 788 OPPOSITIONS AND EXKCUTIONS. in which it iBauoa, the nnmbor of such cuuao, the name of the atturno or iieraon by whom such writ ahull be suod out, the lunount to bo Icvio by virtue thereof, the cauue of notion, tlio duto of the ju(l({muiit u which Huch writ shall be founded, the day on which such writ Hhall Ihhui and the return day thereof be made and kept by the prothonotury i his oftice, to which all peruona almll at all timoa, durint{ ollico houru have acceaa /jratix. LXXX. That to all oppositions iijln d'annuUi'r, ajln dc chunit' o a/in de diatraire there shall be annexed an afltdavit in the form follow ing:— " Lower Canada. District of In the Superior Court. Plaintiff; v». Defendant. " A. B., of , being duly aworn, doth depose and say tha the facta articulated and aet forth in an annexed opposition uji d , and each and every of them is and are tru and that tlie am opposition ia not made with any intent unjustly to retai i or delay tlu sale of the whole, or any part, of the (moveable or i mmor fa 'i/t') property seized by virtue of the writ; or writa, of execution in this cause iHBucd but that the same is made in good faith for the sole purpose of obtainin justice. " Sworn before me, at , this day • •* thousand eight hundred and ." C. C. P. arts, 583, C51. on 11* LXXXI. And any opposition to which an affidavit in form aforesai shall not be annexed, shall not delay the execution of any writ of jl facias or venditioni expotias issued in any cause, and, notwithstaiuliii^ tl service or filing of any such opposition, the sheriff shall in such cu proceed to the due execution of such writ, in like manner as if no oppoHitir had been served or filed. It being nevertheless provided that ail siu oppositions shall be returned into this court with such writ. Ihid. LXXXII. That ix\ all cases of oi^position ajin de distr?e. LXXXIV. That in every case wherein the plaintiff shall declare that he does not intend to contest an opposition afin d'annuUer, afinde diatraire or tilin de charge, the opposant shall be entitled to judgment "of main lev/e, without proof, provided that the defendant, upon the service of a rule niti to that effect, shall not shew cause to the contrary, or declare that he intends to conteat such opposition. C. C. P. arts. 586, 601. LXXXV. That the rulen, orders and delays, prescribed by law or by this court, with respect to pleadings, enquetes and hearings upon demands in nhief, shall be tho rules, orders and delays, with respect to all pleadings, enquHi'!< and hearings upon oppositions of every description. Ibid. LXXXVI. That a register of all writs of execution, and of all opposi- tions filed in the office of the sheriff, containing a full description of such writs and oppositions, and of all proceedings and matters relating thereto, be made and kept by the said sheriff in his office, to which all persons shall, at all times during office hours, have access (/ratia. C. C. P. art. 718. LXXXVn. That any opposition, made without the ministry of an attorney of this court, which shall not contain an election of domicile on the part of the opposant, at some dwelling-house within one mile from the court-house, shall not be received or tiled. C. C. P. arts. oH3, 722. LXXXVIII. That every opposition shall contain tho moyens upon which the same is founded, and that no other vioi/en d'opjuh^ition shall thereafter be received or filed. LXXXIX. That with every opposition afui de coHKerve:- shall be filed all the exhibits in support thereof, with a list of such e:«'lubits. 'A il 'ij' i> ■'4 ! r I-'.- ''111 Mm 740 OI'I'OSITIONH AND l'',XK(!UTIONH. ; XO. That witliiii twolvo iliiyH aftor tlio retiini day of any writ of t-xc ciitioii, ami aftor llm ulioriffn rtitiirii tlioroti), c«rtifyiiii{ tliat tlitri! aro iii(Miii)H ill liin liiiii:l>4 Hiil>joi;t to tlio onlor of tlio ooiirt, tliu protlioiiotary ulmll pruparu aii'l lllo a report of (liHtril)iiti()u. (1. (!. l\ art, 721. In the diMriflu of Tliri'i' liiri'i-n, St. Fniiii'lii, (ln.iiti', lUtiiwu, Kitmimrnnkit, (liv fot. lowiit;! »■///(' pri'Vitlh'd ln'hiri' Iht' pi'iititHlijatiiHi of the roilr of riril prori'iliitf :— That within four (layn iiftor tlio rotiini day of any writ of oxucntion, im,! after tho nhoriffM rctiini thornof (vrtifyin^,' that there iire iiionioH in hju hatuls HiiliJL'ct to tilt' oi-iliT of Iho court, tlio protliuiiotary Hliall proj)iire aud tlio a report of diHtrihiition or collocation. X(>I. That tho prolhuiiotiiry hIkiII preitaro a lint of jill hikOi r'^imrtg filed, and thiil such list, hIuiII hu [lostcd up in nonio couHpieuiouH i)laci; in tho olTliJo of tlio i>rnlliiiiiotary. XCil. 'I'liiit any parly iiilciidiiif,' to conlimt hiicIi report hIihII lilc hin cwntostiitioii at iho oHii-c ol' the ))ri)tlioMiit;iry, on or Ixiruro tlu' expiraUeii of oitjlit diiyn tiexL alter the tlliii'^ of Kiicli report; |)rovided alwayH, tlmt if tho report of diHtrihiition he Tiled on any dny otluM- than a Monday, thu delay for iilinn the contuHtation whall hu computed from the !\ronday next following; the day on which such report Hhall have heen liled. (!.(', I'. art. 71'i. In tlie iliKlrirtH nf I'liriw Hirfm. St. /''/((/.'CM, (iit.1) : 'i'hat immediately after the delay for hlin'^ a contestation to a report of diHtrihution shall have expired, if no contestation has heen filed, tliu plaintiff may j^'ive noti(re that he will move on the first juridical day of tho eiisiiini,' term, that the said report ho homolof^ated with cdsts ; and if the plaintiff omit to t^ivo such notice on the juridical day next followinf^ the expiration of the delay for the hlin^^ of onteHtalioii, any other party collocated m ay ^{ive su'di notice. That the said notice sli;ill not bo served on tho parties; but that tho same shall be posted ia tiie prothonotary's ofHco, at least four days. Ihin"tiuy ). t;. I', art. 7'^ I. '""" ,., J,. ,./•<•<■.•./ /)r.>.v.lHiv;-- y writ of os.'cutioii. iiii.l ■ ihoro an! ^nonit-H in hi« otliouotary hIuiII i-ropare , liHt oi all surli r.^iH.rts ,.,,,,1, v.>l>ort shall nio liiH j„ or botoro tlio oxi-iniLimi ,rL ; pvovi.lo'l alwaVH. IUrI , other Ihaii a MoikIhv, tlio twl troni tho M<.uihiy next havo been lUed. C. ('. I'. ,•, i-niunx, (;«.^/"'. """•'"• tUe in;»nnl!irothonotary'H ofllco, as heretofore, at leant four dayn. //,/(/. In tin- ilUtri('t» ()/ 77i/'('(' Uivvi-K, St. Fiiiiiort of diHtribution kIihU be made find Hied by the protlionotai'y, and a eontoHtation of Hueh rejinrt or of iiiiv I'laini or op|>oHilion on which Huch reiiort sIkiU be foniins mill GMENT. iteat the declaration of a ght days from the making ,chment be an attachment an attachment before judg- ring of the judgment in the ^9 prescribed by law or by and hearings upon demands with respect to all pleadmga, 1 of the declaration of any XVI. FAUX. ^ against an exhibit filed slmll. eave so to do. C. C. P. arts. , f,.».t. shall be signed by the attorney specially authonze „ power of attorney given shall against an exhibit i.led sh ,1 ,e exhibit, and not afterwards, ,e same. Ibid. art. IGl. Ivithinadelaytobeprescribecl Lr declare in writing whether ft "in support of the allegations bit omit to make such declara- £« «. BowKX, Chief Justice S. C. C't.vs. I\Ioxi)i:lkt, J. S. C. Cum. D. Day, J, S. C. E. B.wguKr, J. S. C. G. Van Felson, J. S. C. J. Duval, J. S. C. W. C. MEUKDiTir, J. H. C. Quebec, 17th Dec, 1850. ADDITIONAL RULES. SUPEIUOB COIJIIT. It is ordered that in all suit i in which th'.^ sinnovlhe valueof the iliim,' demanded amounts to or exceed i ^HOi), but doo-^ not exceed S'JOO, to b? instituted in the Superior Court under tlic Statute of the Province of Quebec, pa.ssed in the IJtth year of Her Majesty'i^ reign, intituled "An Act to amend certain Articles of tho Code of Civil Procedure re.spectiiu; the practice of tho Superior and Circuit Courts," the fees te be allowed to the counsel, advocates and attor leys engaged in tlio sai:: suits, and also to the b.iiliif.s employed therein, shall be tho s une k.4 according to tho Tariffs now in force, are allowed in actions of the sani; class in the Circuit Couvt, which said Tariffs in the particulars aforesaid, are hereby ailopted and made Tariffs of the Superior Court applicable ti the cases aforesaid. — December, 1870. It is ordered that the Rule of Practice of tho 22nd February, 1870, fixing the ith, .5th, (5th, 7th and 8th days of each month during tb; enqufite as special days for proof and final hearing on the merit.s at the same time, be rescinded and annulled, — 17^// Ai)rU, 1872. ADDITIONAL RULES. 746 y., from tho day of filing ,hiuk fit. y uviy iusci-ibo the cause f,.;,,^ ,„"/<•, ■.'.mUnlm.iuoutly shall bo vej^ulatoa by the The prothonotary shall not jilace any case on the r61e for hearing on tho 'merits without having previously ascertained that tho record is complete, and for this purpose the inscription should bo filed at the nrothonotary's ollice at least one clear day before the day fixed for the hearing.— 30 •. .erein, shall be the s:une a^ niowod in acti(Mis of tho .un f, in the particulars afovesaul Buperior Court applicable t. of the22ndrobruary,l«iO, 18 of each month during J: hearing on the merits at tk [,, ,|pr , . ni. lOV,). XXVII. That it shall bo the duty of the clerk to call the causes, each day, in the following order : 1. Causes returned. 2. Non-appealablo causes fixed for final hearing, r.rpnrte. 3. Noii-ap!)calable causes in whicli our of the parties is to be hoard on the nt'i'iiifiit dcvisiiire. 4. Non-appealable causes contested. 5. Appealable causes, c.xpurti'. G. Appealable causes contested. OF ENQUETES. XXVIII. That the clerk shall keep a roll of all causes inscribed for the adduction of evidence. XXIX. That of every in.icription on the role d'enqulte cue day's notice shall be given in term and four days iu vacation. ;etea by specifying tlio r filed, iiutl statin!^ by ts bo made on or before s. 107, lO.VJ. audbinain-boUdaysor ^l^ ^^aesB otberwifie rro- I non-jxuidical day, sucb aext juridical day. Ih'd. leauyi^leadiu^orrapor. )ire ,) ;„ fomc, or ilihitoire ,';coptiou «ball tbereNvitb ,;« pound six sbilUn«« and ,, the costs of tbe adverse Ivawn, in the proportion of ,^^ t,,euty sbilUngs to tlie { service shall particidai-^y ce in letters, aud also the t house at which the party lerk to b-\n'X< <• call tbe causes, each Ihe parties is to be beard on all causes inscribed for the tiou. OF OPPOSITrONS. 749 XXX. That if the plaintiff or defendant is not ready to examine his witnesses on the day fixed for tlio eiiqiii'ta, his enquUte aluill, on motion, bo declared closed. XXXI. That every application for an order or a commission, in the nature of a commixaion rofiatoire, for the t'xaminatiou of witnesses be applied for within two days after issue joined. XXXII. That all interrogatories annexed to sncli comnnssion, whether fur the examination of witnesses or of a party on/W/7.'i ct mliflex, sliall be allowed by a judj^c before the party can be called iinrn to answer. XXXITI. That either party may, at !iny period, causo tlie return to a comniiss'on by him sued out to be opeuid, nnl"^s f^ood cuii-e to the C'.'n- trary be shown. Hut the return to a cuniiiiissiou sued out by a defendant shall not be opened luitil phuntiii's I'uquiU' has been closed. ItOLK DE DKOLT. XXXIV. That the clerk sha^' Keep a roll of all causes inscribed for preliminary hearing en droit, and another roll of all causes inscribed for final hearing on the merits. XXXV. That of all such inscriptions one day's notice shall be f'iven in term, and two days in vacaticMi. XXXVI. That either party may inscribe the cause for final hearing on the merits or for preliminary hearing en ^m % tA i 750 INSCRll'TION EN FAUX. made with any intent unjustly co reourd or delay the sale of the whole or any part of the moveiihle or immoveable property, seized by virtue of the writ of execution in this cause issued, but that the same is nmdo in good faith, for the sole purpose of obtaining justice. Sworn before me, at this day of 18 XXXIX. No bailiiT shall receive any of the oppositions above men- tioned, unless supported by such affidavit; but it shall be the duty of the bailiff to proceed as if no such opposition had been presented to him. INSCRIPTION EN FAUX. XL. A party desirous of inscribing en faux against an exhibit filed, shall, by motion addressed to the court, pray leave so to do. XLI. The motion for leave to inscribe en faux shall be signed by the party in whose name it is made, or by an attorney specially authorised so to do, and an authentic copy of the power of attorney given shall bo filed with the said motion. XLII, The party filing snch exhibit shall, within the delay to be pre- scribed by the court, on motion of the plaintiff en faux, declare in writing, if he intends to avail himself of such exliibit in support of the allegations set forth in his pleading. XLIII. Should the party filing such e.^hibit omit to make such declar- taion in writing, signed by himself or by his attorney ad lites, within the time prescribed, the said exhibit shall by order of the court, on tlig motion of the plaintilf en faux, be taken oiT the files of the court, and thereafter be held and considered, to all intents and purposes, to have been withdrawn by the party who filed the same. XLIV. If the defendant en faux declare that he does not intend to avail himself of such exhibit in support of his allegations, the said exhibit shall be taken off the files? of the court, and shall be held and considered, to all intents and purposes, to have been withdrawn by the party who filed the same. XLV. If the defendant en faux declare his intention to avail himself of such exhibit for the purposes aforesaid, he shall file the minute thereof, if there be a minute, in the office of the clerk, within such time as slmll be prescribed by the court, and in default of so doing, the said exhibit shall, on motion of the plaintiff en faux, betaken off the files of the court, and held uud considered, to all intents and purposes, to have been with- drawn by the party who filed the same. iiit to make such declar- ttorney (((/ 'i'<'''». within der of the court, on thg files of the court, and and purposes, to have :iition to avail himself of . tile the minute thereof, vithin such time as shall doina. the said exhibit i,lf the files of the coin-t, poses, to have been with- INSCUIPTION EN FAUX. 761 XLVI. Tko days after the plaintiff fiijaux shall have been notified of the filing of the said minute at tlie ofhco of said clork, the said plaintiff shall file, u'lder his signature, or that of his attov iy ad lites, his inscrip- tion <;«/'»«■«! containing all the moijem di- faux, d, copy whereof shall be served on the attorney of the adverse party. If the said plaintiff omit so to do, the leave granted to him to inscribe en faux shall, on motion of the adverse party, be set aside, and the plaintiff, on the original demand, allowed to proceed as if leave to inscribe en faux had not been allowed. XLVII. When the moyciw dc faux are filed, the defendant en faux may move that the said moyenn be declared irrelevant and inadmissible, on which motion it shall be competent for the court, if it reject the same, to declare the vioijem de faux relevant and admissible, and to order the defendant en faux to file his plea thereto within a given delay, to be com- puted from the day of the making of the procit verbal next hereinafter mentioned. XLVIIT. xMiat immediately after the rendering of the said judgment declaring the inoyenH de faux relevant and admissible, the plaintiff or de- fendant en faux may move that a proc^n verbal, descriptive of the exhibit filed, be made in the presence of the adverse party, or his attorney ad litet. XLIX. If the defendant en faux omit to file his plea as ordered the plaintiff en faux shall be allowed to proceed ex parte. ' L. The plaintiff en faux may, within two days from the day of the filing of such plea, file a special answer thereto if he think fit. LI. Either party may inscribe the cause on the rSle d'evquete for the adduction of evidence. LII. The enquUte being closed, either party may inscribe the cause for final hearing. LIU. The cause being inscribed on the roled'enquHe and on the rSle de droit, the proceedings thereon shall be regulated by the orders and rules of practice of this court. The follotving Rules of Practice shall apply b-pecially to Kon- Appealable Cases. LIV. That the parties shall be bound to proceed to evidence on the day named for that purpose.; should the plaintiff not be ready to pro- ceed, his action shall be dismissed with costs, nauf a se pourvoir ; in case the defendant ia not ready to proceed the plaintiff shall be allowed to proceed ex parte. I ',f . .'■;i[:., }l,,;»y ''ii (.1 i '^i 752 ADDITIONAL ntlLES. LV. The attorneyH Hhall hIkh the pleadiDf^H by thorn filed — the clork Bhail enter on the declaration the name of the dcfoiuhmt's attorney. LVI. All interroj^atorics upon the smiiciit ih'risoiri' or upon DiitH et articU'n shall ho nerved the day bofore thiit on which the party in to answer, when tlie [larly to bo inter ropitcil iIoch not resido more than five lea^jucH from the cdUit-houHc, and wlici the said party rc.Hidi>H at a distance of more tl'.ii.n (ive leaf^ucs frntii the cou 't-houHo, an additional delay of one (hiy hIiiiII ho recjijirod for every iidditional five lea^juoH, ])nt the judj^e nuiy, in hiu tllHcrotion, allow citlu'r party to he interrogated on the ferment tlAuKniir wiliiout rciiuirin^r the interrojijatoriea to bo in writing;. (Sit^ned), K. Bow TN, Cliief Justice, H. C, 1). IMoNDKurr, J. H. C, Cns. 1). Day, J. S. C, G. Van V'ki.son, J. S. C, CiiAH. ?>I<)Ni>Ki,i:r, J, S. C, J. Smith, J. S. <'., K. BA((.nvr, .1. H. C„ J. DrvAi,, ,). 8. C, W. S. JIkukdith, J. 8. C. Quebec, 17tli December, 1850. ADDITIONAL RULES, SUBSEQUENTLY PROMULGATED. That within four days after the return of any writ of execution, and after the bailiff's return thereto, certifying that there are monies in his hands, subject to the order of the court, the clerk shall prepare and file a report of distribution. That the clerk shall prepare a list Of all such reports filed, and that such list be posted up in some conspicuous place in his office. That any party intending to contest such report shall file his con- testation at the ofiice of the clerk, on or before the expiration of four days next after the filing of such report : Provided always, that, if the report of distribution be filed on any other day than a Monday, tiie delay for filing the coiatestation shall be computed from the Monday next fol- lowing the day on which such report shall have been filed. ADDITIONAL RULES. 768 That immediately after the delay for filing a contestation to a report of distribution shall have expired, if no contestation has been filed, the plaintiff may give notice that he will move on the ttrst juridical day of the ensuing term, that the said report be homologated with cohIh ; and if the plaintiff omit to give such notice on the juridical day next following the expiration of the delay for the filing of contestations, any other party collocated may give such notice. That the said notice shall not be served on the parties ; but that the Hamo shall be posted in the clerk's oMco, at least four days. That it shall be lawful for a defendant, by leave of a judge of this court, to pay into court the sum of money which such defendant acknowledges to owe to t1"> plaintiff, and thereupon, unless tho plaintiff shall accept thereof in full discharge of his suit, the said sum shall bo struck out of the declaration and paid out of court to the plaintiff ; and upon the trial of the issue, the plaintiff shall not be allowed to give evidence for the sura 80 acknowledged to be due. (Signed) Quebec, Jan. 4th, 18.'i4. Edwu. Bowen, Ch. Justice, J. Duval, J., W. C. MEUKurni, J. 8. C, El). CxnoN, J. S. C, Chs. D. Day, J. S. C, CUS. MoNUELET, J. 8. C. f^mw M. .■#',! ,y writ of execution, cml there are moniew in his rk shall prepare and tile a 6 I *J |uch reports filed, and that qe ill his office. report shall file his con- |orc the expiration of four fvided always, that, if the } than a Monday, the delay Lom the Monday next fol- \e been filed. 48 ^'M F. C. C. P. ■^ V ^ll 754 SUPERIOR COURT BITTING AB A COURT OP RIIVH'.W. RULES OF PKACTICE or TIIK SUPERIOR COURT FOR LOVER CANADA, SITTING AS A COURT OF REVIEW. T. It is ordered that in every case of rcviBion before the Haid court the party a^'({rieved Bhall make and tile a Htatomoiit in writing of thu ({louiulg or reuBuns of reviHion to be Hubmitted to tlie Haid court. II. The said Btatoinont shall be divided into difltinct itoniH or articlon, oaoh of which shall be regularly uunib(>rean and no hearing shall be allowed or had until the said statement, origim and duplicate, shall be so filed. No party shall be heard ujjou any grounds or reaaous of reviHion other than those «et out in the suii statement. (Signed) Baholky, J., SruAiiT, J., Taschkiieau, J. ADDITIONAL RULE. In all cases in review, the prothonotary shall prepare and keep, v.licn filed, the factums, the judgment a quo, and the judgment and proceu(linj;s in review, — October, 1873. : or Riivir.w. , before the said oourt tho t in writiuj;! of tho kiouiuIh , nid court. diBtinct items or articles, HUCco«Hion. anil flViiiU in (v each particnUwr «r..iuul or t upon which uaid ^nmA na to Buch uround or reason til, relied upon for each hucIi ,n original of the Haid state ■licate thereof, for tho use of be Binned by tho counsel m Luccd and f\led of record m be appoi.^ted to be heard , the Bttid statement, on^inml V Bluvll be heard uiM)n lu.y ' thoBO«et out in the sa.l Ihall prepare and keep. nvIku COUIIT OF tiUKKN H MKNCU ^ClVIl. AITKALH). 7C5 KULES OF PRACTICE OF THE COURT OF QUEEN'S BENCH, IN THE KXERCIHE OF ITS CIVIL APPELLATE JURISDICTION. PKOMULOATED JUI,Y TEKM, 1850. I. That this court, in tho exerclHo of ita appellate civil jurisdiction, be opened at tho hour of ten in the forenoon of each of the juridical daya on which the Hame ia by law appointed to be held, unleas an order or iidjourinnent to the contrary be made. II. That the Queen's counsel and advocates, practising in thia court, and the clerk of the court, when in tlie discharge of their respective duties in court, be habited in black, and in robes and bandB, aa heretofore liath been used ; and that no Queen's counsel, or advocate, not bo habited, and in such robes and bands, be heard in any cause. III. That all records, registers, books and papers, belonging to and tiled in the court, bo kept in the places assigned for the safe custody thereof, in the court houses. roBpectively, at tlie places where this court is by law appointed to be held, and be not thence removed, or taken therefrom, on any pretence whatever, without the order of this court, or of one of the judges thereof, in writing. IV. That the office of the clerk of this court, in what relates to its jurisdiction as a court of appeal and error, be kept in the apartments assigned for it in the court houses respectively, at the places where this court is by law appointed to be held ; and that the said office, in the ' ' "y'i !■,",*■ if (mm 766 COURT OF queen's BENCH (ciVIL APPEALS). Baid court houses respectively, during the present and every future term, be open, and regular and proper attendance a£Forded therein, from tlio hour of nine in the forenoon until the hour of five in the afternoon of every day (Sundays and holidays excepted), and during th'> vacation after each term from che hour of ten in the forenoon till the hour of three in the afternoon of every day (Sundays and holidays excepted.) V. That there shall bo prepared and kept by the said clerk of tliis court, in what respects its civil appellate jurisdiction in his office, a fit and proper book, in which shall be made the entries hereinafter mentioned, that is to say: Every attorney of this court, before the first day of September next, shall make in the said book an entry, in writing and to be signed by him, of his name and of his real and elected domicile, in the cities of Quebec and Montreal respectively, that is to say, of his real domicile in one or otiier of the said cities, if resident in either of them, and of his elected domicile in that in which he is not resident, or of Ids elected domicile in each of the said cities, if not resident in either of them, at which real or elected domicile all pleadings, summonses, rules, orders and notices, of which the service on him may be required, may lawfully be made. And every attorney hereafter to be admitted shall, on his admission and before he commences practising in this court, make in the said book a like entry. And as often as any attorney of tliis court shall change his real or elected domicile or domiciles, of which an entry shall have been made as aforesaid, he shall make a like entry of sucli chanfio ; and all pleadings, summonses, rules, orders and notices, which do not require personal service, shall be deemed and be taken to be sufti. ciently served on such attorney if a copy thereof be left at the place last entered by such attorney as aforesaid, as his real or elected domicile, with any person of competent age and discretion resident at or belonging to such place. And if any such attorney shall neglect to make such entry as aforesaid, then the fixing un of any notice, pleading, summons, rule or order for such attorney in ti 3 said office of the said clerk of this court shall be deemed and taken to be service thereof, and as effectual as if the same had been served at such real or elected domicile as aforesaid. VI. That a schedule of all suits depending in this court, specifyinj,' in each suit the names of the parties, the date of the writ of appeal or of the writ of error, the time when returned, or, if not returned, the fact of its not being returned, the names of the attorneys by whom appearances for the parties have been filed, and the date of such ap- pearance, and, if not filed, the fact that they have not been filed, the days on which the reasons of appeal and the answer thereto and tlie cases of the parties (if tiled) have been filed, and, if not filed, the fac^t that they have not been filed, the day on which each suit, if inscribed on the roll for hearing, hath been so inscribed, and the day whicli by such inscription is fixed for the hearing of such suit shall be made PPEA.LS). md every future term, •ded therein, from tho ive in the afternoon of i during th'^ vacation on till the hour of three lys excepted.) the said clerk of this ictioninhisofficc, afit ,8 hereinafter mentioned, before the first day of jntry, in writing and to and elected domicile, in hat is to say, of his real 39ident in either of them, 19 not resident, or of Ins not resident in either of idings. summonses rules, m may be required, may er to be admitted shall, on jing in this court, make m any attorney of this court niciles, of which an entry nake a like entry of sue . fders and notices, which do I and be taken to bo sufti- of be left at the place last aal or elected domicile, with .resident at or belonging to '.„ioct to make such entry pleading, summons, rule or the said clerk of this court ,f, and as effectual as if the [o'micilc as aforesaid. 1^ in' this court, specifying fto of the writ of appeal or Id, or, if not returned, the L the attorneys by whom r and tho date of such ap. Lyhavenotbeenfiled - L answer thereto and the L. and, if not filed, the fa.. Lich each suit, if m-nbed Ld, and the day which by ' s^ch suit shall be made COURT OF queen's BENCH (ciVIL APPEALS). 757 and kept by the said clerk of this court on the fir&t day of the next and of every succeeding term ; and such schedule shall be deemed and taken in all parts to be an official certificate by the said clerk of this court of the state of such suits, severally and respectively, on the first day of the term,' when such schedule shall be laid before the court as aforesaid. VII. T'hat no writ of appeal or writ of error shall issue from this cou. t unless a priecipe for the same, signed by t^'e attorney suing out such writ, be first delivered to the proper officer, by whom the said v,'rit is to be issued ; and every such writ shall be written on parchment and shall bear the signature of the attorney, upon whose fnccipe the snme shall be issued, and shall be made returnable at the place at which this court shall be lield next after the issuing of such writ, within fifteen days from the date thereof; except such writs of appeal and writs of error as may be directed to the judge of the Superior Court for the district of Gaspe, which shall be made returnable within two calendar months from the date thereof. VIII. That personal service of any writ of appeal oi writ of error upon the attorney who has appeared in the court below, for the respondent or the defendant in error, as heretofore has been practised shall, in default of the legal service, be held and taken to be legal service. IX. That the writs, pleadings, motions and exhibits, and other paper- writings, comprising any record to be hereafter transmitted to this court, shall, by the prothonotary of the court from which such record proceeds, at tho head of each, be separately numbered respectively from number one to tho entire number tliereof, and that an index of reference to the whole, by number, title and description, under the signature of such pro- thonotary, shall be by him annexed to such record. X. That the postage paid by the said clerk of this court on the return to writs of appeal and writs of error, and the records accompanying them shall, on demand, be forthwith reimbursed to him by the attorney of the appellant or plaintiff in error, and, if not so reimbursed, the payment thereof by such attorney may be immediately enforced, by resort to tho summary jurisdiction of this court. XI. That on every writ of appeal or writ of error lureafter to be issued it shall be incumbent on the appellant and respondent, or the plaintiff and defendant, in error respectively to enter his appearance in the office of the said clerk of this court on or before the eighth day next after the day on which such writ of appeal or writ of error has been made returnable, and, in default thereof, shall be precluded from entering an appearance in such suit, in wliich subsequent proceedings may be had ex ptrte against the party so in default as aforesaid. XII. That the reasons of appeal or the assignment of errors, as the case may require, in every suit shall be filed within eight days next after vholly precluded rom .joinder in error; and the .e given to the adverse party ; of his suit in appeal or >u vout the intervention of H.. L respondent or plaintiff lal or error, to the nu,nber I appellant and respcnuleut ttive\y to the said clerk J^f davs after the filmg of the n: in error. And if the Lor ho not so delivered ana Lpellant or plaintiff in error, >,u of the respondent or def. .« And if the cases of Hu vered and filed as afores.ul Lv.einedtohavodesertedsmn L beard e.r p..H., on th. I- judgment rendered theieia. or defendant in error. L to the reasons of appeal, >^r COUKT OF queen's BENCH (ciVIL APPEALS). 759 the joinder in error, as the case may require, shall be filed, it shall be competent to either party, by whom cases have been filed, to sot down such suit for hearing, by inscribing the same on a docket roll to be kept by the said clerk of this court for that purpose, in vacation or in term, of which inscription two days' notice shall be given to the adverse party. XVI. That after the inscription of a cause for final hearing, it shall be the duty of the said clerk of this court, without delay, to deliver to the judges, respectively, pTinted cases, making part of the cases, which have been filed as aforesaid, in such case, and furnish the attorney of each party, who shall have filed his case, on his demand, with a printed copy of the case of the adverse party, and he shall retain and file of record one of the printed cases of the said parties respectively. XVII. That it shall be the duty of the said clerk of this court to prepare and keep a docket roll of the causes which have been inscribed for hear- ing, in the order in which they have been inscribed ; from wliich docket roll the causes to be heard shall be called on each day, in the order in which they stand on the said roll. XVIII. That in casos where a suit in appeal or in error, having been inscribed for hearin;; ,' being called from the roll, the appellant and respondent, or the ' ' f and defendant in error, shall not appear, or shall not be ready i. ^.i-iceed, every sucli suit shall be struck from the roll ; and in cases where a suit in appeal or in error, liaving been inscribed for hearing, and being called from the I'oll, the appellant or plaintiff in error, shall not appear, and the reapoiulout or defendant in error shall appear, every such suit shall be dismissed with costs to the respondent or defendant in error; and in cases whore a suit in ajjpeal, or in error, having been inscribed for hearing, and being called from the docket roll, the respondent or defendant in error shall not appear, and the appellant or plaintiff in error shall appear, and be ready to proceed, every such suit shall be heard on the part of the appellant or plaintiff in error, so appearing, ex parte, and such order and judgment thereupon made and rendered as to law and justice shall appertain, without costs in such case to the respondent or defendant in error. XIX. That in all suits which shall hereafter be pending in this court, no more than two counsel shall be heard in opening, or in answer, and one only in reply. XX. That when this court shall be moved in any suit, upon any special matter, not appearing upon the record or proceedings filed in such suit, such special matter shall be previously authenticated by affidavit ; and a copy of the affidavit, and two days' notice of such motion served on the .!:i->'l '%•■■ f'M ,f|| li 1 ■^4 ,1 f: if.i, ■ 760 COURT OF queen's BENCH (CIVIL APPEALS). adverse party. And no such motion shall be received, until such affidavit, and an affidavit of the service of notice as afo^iesaid, shall be read and filed. XXI. That every motion for an appeal from an interlocutory judgment, shall be accompp^'ed with copies of tmch interlocutory judgment and of the pleading fil » the suit, together with copies of such exhibits and proceedings th i as may be material end necessary in support of any such motion. XXII. That a copy of every judgment of this court, by reason whereof the record in any suit in this court anall be remitted to the court below, shall be annexed to the record, and transmitted with the same under the certificate of the said clerk of this court. XXIII. That in the computation of time, the common rule dies a quo non computatur temiino shall be observed ; and in all cases in which a prescribed delay or period, within which something is required to be done, shall expire on a Sunday or holiday, the same shall ipso jure stand and be enlarged to the then next juridical day. XXIV. That all rules and orders heretofore made for regulating the practice in appeal and in error, and now in force in this court, be and the same are hereby rescinded and annulled. (Signed) J. Stuart, C. J., J. R. KoLLAND, J. B. 11., Phi. Panet, J. B. K., T. C. AXLWIN, J. Quebec, 12th J-.iy, 1850. COURT OP queen's BENCH (ciVIL APPEALS). ADDITIONAL RULES. 761 That for the future, in appeals from the Circuit Court, the parties shall each produce a printed factum, in the same manner, within the same delay, and subject to the same penalties as are prescribed and est.'bli8hed by the rule concerning appeals from the Superior Court. Experience having shown that the paper covers heretofore in use are insufficient to protect the records of the court from injury, it is hereby ordered, pursuant to the statute in that behalf, that, for the future, the clerk do provide proper wrappers or external covers in parchment, for each record ; and to defray the expense thereof, the sum of one shilling and throe pence shall be paid to him over and above the other sums now pay- able upon the suing out of any writ of appeal. It is further ordered that, instead of the present number, for the future there be filed in the office of the clerk twenty-five printed copies of cases on each side, in appeal ; and that the said cases be printed, as heretofore, in paper in folio form, {llth July, 1857.) DoubtB having arisen whether the additional number of cases in appeal made requisite by the rule of the llth July last, should be liable to the payment of any f-->e or charge, it is hereby ordered that no fee or charge whatever shall be demanded or paid in respect of such additional cases. (I2th October, 1857.) For the future, in appeals from the Circuit Court, the parties shall each produce a printed factum in the same manner, within the same delay, and subject to the same penalties as are prescribed and established by the rule concerning appeals from the Superior Court ; and the party appel- lant will not, for the future, be obliged to furnish copies of his petition in appeal. For the future, in every appeal, as well from the Superior as from the Circuit Court, the evidence taken in the suit is to be printed and to form part of the factum, that is to say, that the appellant shall have printed, with hie factum, the evidence adduced by him in the court of original jurisdiction, and the respondent that adduced by him. (6t/i December, 1859.) The appellant in each cause shall insert in his factum a true copy of the judgment appealed from, and both parties, appellant and respondent, shall endorse on the said factum the name of the court from whose judg- ment the appeal has been instituted. (9th December, 1861.) Hereafter, communication of the record in each cause shall be given to the attorney of either party, on his receipt filed with the clerk of the •it'ffi > m ''■ •(i,4'\ fWMM\ liJ 762 COURT or QUEEN S BENCH (CiVIL APPEALS). court, and bliat the order of this court or of one of the judges thereof required by the third Rule of Practice, be dispensed with. (5(/{ June 18(52.) At the expiration of each terra, the clerk of this court shall fjivo to each judge a list of the cases in which an appeal has been allowed to He^ Majesty in Her Privy Council. Immediately on the transcript of the record being transmitted to tlio first clerk of the Privj mcil, the clerk of this court shall inform each judge thereof. (itk J . 1864.) Appeals from judgiu.vnts in actions of ejectment brought under the Lessors and Lessees' Act shall, as to hearing, have precedence in this court before other cases, (dth March, 1865.) No barrister, attorney, protlionotary, sheriff, crier, bailiff, sheriff's officer or officer of this court shall be bail or surety in any action or proceeding cognizable by this court or by any judge thereof. (Qlh June 1866.) The clerk of this court, immediately upon the receipt of the pujiers tran.^mitted is a case reserved for the opinion of the court, shall set down such case for hearing on the lirat juridical day of the then next eiisuiii:^ term. The plaintiff in error in all criminal cases, shall file an assignment of errors on the first juridical day after the day of the return of the suid writ. The joinder in error shall be filed on the first juridical day followiiifj the filing of the assignment of errors. The clerk of this court, on receiving tho joinder in error, shall forth with set down tho cause to be heard on the errors assigned. (1. / .lu.w 1867.) Friday, the Sixteenth day of March, one thousand ■■iijhl hundred and seventy -seven. Phksent : The Honourable Mr. Chief Justice Dorion, " Mr. Justice Monk, " " Mr. Justice Ramsay, , " " Mr. Justice Sanborn, ** •' Mr. Justice Tcssier. UEQUL^. GENERAI.es. On the first day of each terra, the Clerk of appeals shall lay before tlicl court a list of all cases pending before the court, in which no procee(liii>j ilr" '■) fB'f' r.l, appeals). ae of the judges thereof, ensed with. (^th June, ^ ,f this court shall Rivo to 1 has been allowed to He. being transmitted to the I court shall inform each tment brought under the , have precedence in this iff, crier, bailiff, ahorift's or' surety in any action or judge thereof. (WiJune I the receipt of the papers of the court, shall set elowu y of the then next ensuiii;^ Bhall ftle an assignment of ky of the return of the said arat juridical day followii>« oinder in error, shall forth. errors assigned. (1^« '';'■"■- March, one t/a.u.sami ■'iilht luatico Dorion, Monk, Bamsay, Sanborn, Tessier. k{ appeals shall lay before the lourt, in whicn no proceed! COURT OF queen's BENCH (ciVIL APPEALS). 763 have been had for more than a year, indicating the name of the parties and of their respective counsel, the nature and date of last proceeding hail in such case ; and such cases shall be considered to have been doaert- od, iind the court may without any demand to that effect order the records to be transmitted to the court below. Tliia rule to be enforced in cases now pending as well as to future cases from and after the first day of March, one thousand eight hundred and seventy-eight. In all cases of appeal and error, the parties may in lieu of factums as now required, file a special case setting forth the judgment or judgments appealed from and so much of the pleadings, evidence, documents and orders in the cause as they may deem necessary to enable the court to decide the questions at issue, together with such propositions of law or fact as may be relied upon by the parties respectively, and such special cases shall be considered as common to both parties and will entitle the counsel engaged in the case to the same fees as if separate factums had been filed. The cases or factums shall be printed on paper of eleven inches by eight inches and a naif, the type to be small pica leaded face, and every tenth Une numbered in the margin. (Certified) L. W. MARCHAND, Clerk of Ap})ea!s, 1, The case in appeal shall contain a summary statement of the pleadings and of the questions of fact and of law on which the party filing it relies, also in an Appendix copies of the depositions of the witnesses produced by such party, giving the dat of each deposition, also copies of all admissions obtained by him and ol . 11 questions put to and answers on fa its et articles by the adverse pa'ty whenever the same are relied upon. 2. In addition the appellant's case shall contain a copy of the judgment or judj^inenta appealed from with their respective dates ; and such judg- ment or judgments shall appear at the beginning of the appellant's case. , mm ;Vi M > the clerk of this court or filed in his office, nor shall it bo taxed a^aiiiHt tho adverse party except by leave of the court or of a judf{e thereof, wliich may be grauteeul is brought, shall be bound to send home the same in a printed form, either wholly or so far as the same may have boon printed ; and that he do certify the same to be correct, on two copies, by signing his name on every pn wi sheet and by affixing the seal, if any, of the court appealed troiu to these with the sanction of the court ; and that in all cases in which the parties in appeals shall think fit to have the proceedings printed abroad, they shall be at liberty to do so, provided they cfise fifty copies of the same to be printed in folio and transmiHed at their expense, to the registrar of the Privy Council ; two oi which printed copies shall be certified, as above, by the officers of the court appealed from ; and in this case no further expense for copying or printing the record will be incurred or allowed in England. IV. That on the arrival of a written transcript of appeal at the Privy Council Office, Whitehall, the appellant, or the agent of the 49 F. C. C. P. f I ' ' It ! 1 S 1 Hi- il 1 ' 1(* !^' •70 HER MAJESTY S PRIVY COUNCIL. ap^Uant prosecuting the same, shall be at liberty to call on the registri of the Privy Council to cause it, or such part thereof as the responden or his agent may require, to be printed by Her Majesty's printer, or I any other printer on the same terms— the appellant or his agent engagii to pay the costs of preparing a copy for the printer, at a rate n^ exceeding one shilling per brief sheet— and likewise the cost of printii such record or appendix ; and that one hundred copies of the same 1 struck off, whereof thirty copies are to bo delivered to the agents on eac side, and forty kept for the use of the Judicial Committee ; and that i other fee for solicitors' copies of the transcript or for drawing the joii appendix bo henceforth allowed, the solicitors on both sides being allow( to have access to the original papers at the council office, and to extra or cause to be extracted and copied, such parts thereof as are necessai for the preparation of the petition of appeal, at the stationer's charg not exceeding one shilling per brief sheet. V. That a certain time be fixed, within which it shall be the du of the appellant, or his agent, to make such application for the printii of the transcript, and that such time bo within the space of six calendi months from 'the arrival of the transcript and the registration tliereo in all matters brought by appeal from Her Majesty's colonies ai plantations east of the Cape of Good Hope, and from the territories the East India Company, and within the space of three months in a matters brought by appeal from any other part of Hor Majesty dominionb abroad ; and that in defr.ult of the appellant or his age taking effectual steps for the prosecution of the appeal within sncli tir or times respectively, the appeal shall stand dismissed without furth order, and that a report of the same be made to the Judicial Coniniitt by the registrar of the Privy Council, at their Lordship's next sittin>j VI. That whenever it shall be found that the decision of a mati on appeal k likely to turn exclusively on a question of law, the agei of the parties, with the sanction of the registrar of the Privy Couik may submit such question of law to the Lords of the Judicial Commit in the form of a special case, and print such parts only of the tra script as may be necessary for the discussion of the same ; provi that nothing herein contained shall in any way bar or prevent Lords of the Judicial Committee from ordering the full discussion of whole case, if they shall so think fit ; and that in order to promote bi arrangements and simplification of the matter in dispute, the regist of the Privy Council may call the agents of the parties before him, having heard them and examined the transcript, may report to committee as to the nature of the proceedings. And Her Majesty is further pleased to order and it is hereby ord( that the foregoing rules and regulations be punctually observed, obe; HER MAJESTY S PRIVY COUNCIL. 771 JNCIL. ^y to call on the registrar hereof as the respondent, . Majesty's printer, or by Iftnt or his agent engaj^ing t,e printer, at a rate not ewise the cost of printing red copies of the same be vered to the agents on each a Committee -.and that no pt or for drawing the jonit on both sides being allowed .onncil office, and to extract rts thereof as are necessary al at the stationer's charge, and carried into execution, in all appeals or petitions and complaints, in the naturfa of appeals, brought to Her Majesty or to her heirs, and snc- cesBors, in Council, from Her Majesty's colonies and plantations abroad, and xrom the Channel Islands or the Isle of Man, and from the territoriisB of the East India Company, whether the same he from the courts of justice, or from special jurisdiction, other than appeals from Her Majesty's Courts of Vice-Admiralty, to which the said rules are not to be applied. Whereof the judges and officers of Her Majesty's courts of justice abroad, and the judges and officers of the Superior Courts of the East India Company, and all other porsons whom it may concern are to take notice, and govern themselves accordingly. (Signed) William L. Bathukst. ^hich it shall be the duty , application for the pnntuig tJ the space of six caendar and the registration thereoi Her Majesty's colonies and pe. and from the territones of ^iacc of three months in a other part of Hor Majesty oithe appellant or his aseut ,f the appeal within such time nd dismissed without further Ide to the Judicial Committee heir Lordship's next sitting. Lat the decision of a matter aauestion of law. the agents I «« tVifi Privy Couucil, r . _i.„ ««iv o* the trans- it Buch parts only o ' j'^- LTon^f the same; provi^ i anv way bar or prevent the dering"hof«U discussion of the Kt in order to promote Bucl, V .tter in dispute, the registrar Pe%artie^eforehinlan^ 1 transcript, may report to the lings. border and it is hereby orderd L punctually observed, obeyed, ^^ m m \ ) '1 TABLES OF FEES. ADVOCATES FEES IN THE SUPERIOR COURT. It is hereby ordered that the following fees be allowed to the counsel, advocates and attorneys practising in the Superior Court in actions to be instituted, and upon other proceedings to be commenced, from and after the day on which the present tariff shall be entered by the prothonotaries of this court in the registers of the same as by law directed ; and the tariff : fees for tho counsel, advocates and attorneys practising in this court, the original whereof was entered in the registers of the said court at the City of Quebec, on the 20th day of July, 1B52, is hereby repealed in so far as regards actions to bo instituted, and other proceedings to be commenced, from and after the day on which the present tariff shall be | so entered in the regist 's of this court. Vide C. C. P. ante, art. 29. FIRST CLASS ACTIONS CONSIST OF iU"^^' ki } 1. Personal actions when the value in contest exceeds 9400. 2. Real and mixed actions not otherwise specially provided for. ADVOCATES FEES IN THE SUPERIOR COURT. 773 f ^TEES. FEES be allowed to the counsel. bericrCourtinactiouBtobe Lmmenced, from and after Uredbytheprothonotan. I by law directed; and he Lttorneys Pra^ti-"^.-^^;; t registers of the sa.d cour W. 1«52. is hereby repealed Ta^'d other proceedm,. to b L the present tariff shall be kSIST OF Lest exceeds »400. Ipecially provided for. 8. Actions for separation from bed and board, and en dMaration de patetfiitJ. 4. Proceedings by Mandamus, Scire-facias, BeqiJte-LibelUe or Prohibition, or others under articles 997 to 1033 of the Code of Civil Procedure and upon like proceedings. SECOND CLASS ACTIONS CONSISTS OF 1. Personal actions when the value in contest does not exceed ®400. 2. Actions for separation of property. 3. Actions or petitions en destitution de Tutelle or Curatelle. 4. All actions not included in the First Class and not othorwiae specially provided for. ACTIONS NOT CONTESTED. TO PLAINTIFF'S ATTORNEY 1st Class. 2nd Class 1. If the action be settled before return 818 00 ^14 00 2. If the action be settled, or if the defendant confess judgment on the day of the return, or ou the next following juridical day 20 00 16 00 3. If the action be settled or if the defendant confess judgment, after the delay mentioned in the next preceding number, but before pica filed, or inscrip- tion for proof, or inscription for final hearing on the merits where no enqufite is necessary 22 00 18 00 4. If the action be settled after the inscription on the roll for proof, but before the closing of the enqu^te, or if the action be settled after the inscription for final hearing on the merits where no encjufite is necessary, or if judgment be rendered on such last mentioned inscription 25 00 20 00 T). If the action be settled after enqufite closed, or if judgment be rendered in such action after en- qufite 30 00 24 00 6. In any of the above cases in which the defendant may have appeared by attorney, to defendant's attorney on actions returned, or on congJ dJfaut C 00 5 00 *: ■ HI t il ,''1 :.f '.i';li; /;.",. ;'1 jifet /I.' 1 "U"i m ■ ';!< ■ '^ y^: ' .';_ 'i§i ■ I ''3' .,. ','■ •: > ■■•■f| 1 ' '. ■m ...Jr f ;! 774 advocates' fees in the superior court. ACTIONS COMTEBTED. FIBBT CLASS. SECOND CLASS, Pltff. Defdt. Pltff. DeMt. 7. If the action be settled after the filing of any plea other than a ;ilea to the merits and without enqudte on such plea, or if the act .on bo dismissed on such plea aj^d wi.ii- out enqufite $30 00 926 00 925 00 820 00 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 enqu^te is necessary or before the inscription for final hearing where no enqu^te is necessary 40 00 30 00 30 00 25 00 9. If the action be settled after the inscription on the roll for proof, but before *he inscription for final hearing 50 00 40 00 40 00 35 00 10. If the action be settled after the inscription for final hearing, or if judgment be rendered on such hearing! 60 00 50 00 50 00 40 00 11. The costs in actions in revendication for moveables to be taxed as against the plaintiff according to the value of the property claimed, and as against the defendant according to the value of the property for winch judgment is rendered. 12. Hypothecary actions and actions for seigniorial dues where the title of the seignior is not contested, are to be considered in respect o costs as merely personal actions. 18. The costs in actions to account to be taxed as against the plaintiff according to the amount demanded, and as against the defendant, according to the amount for which he is accountable. 14. In any action of ejectment 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 a personal action (in the Superior Court or Circuit Court, as the case may be), for a sum of money equal to the value of the premises leased for the year current at ADVOCATES FEUS IN THE SUPERIOR COURT. 775 BECOMD CI1A88. 00 «25 00 1>20 00 50 00 50 00 4000 or moveables to be taxed as I the property claimed, and ,e of the property for which seigniorial dues where the be considered in respect of Led as against the plaintiff as against the defendant, tountable. fc Lessor and Lessee Act not fdamages are, sued for (w^i>= Ib to be as in a personal action Lease may be), for a sumo [eased for the year current at tlie time of the institution of the action, or if the lease shall have expired, then for the last year to which the lease extended. • 15. In actions of damages for personal wrongs (except in actions in which the court or jury shall find the damages to be under forty shillings sterling), the costs to be taxed as of the class to be dotormined by the final judgment. 16. In actions for sums of money under ^200 instituted by writ of capias ad respondendum in the Superior Court, the costs to be as in actions over .$100 in the Circuit Court. 17. In any case where the defendants sever in their defence, the plain- tiff's attorney shall receive, on each additional issue, one half of the sura which he would have received had there been but one issue : the wliole amount to be payable in equal proportions by the party or parties to each issue. ADDITIONAL FEK8. 18. For the second and every additional copy of the plaintiff's declaration ftl 00 1',). Affidavit to obtain writ of capias ad respondendmn, attachment in revendication, simple attachment before judgment, attach- ment for rent, certiorari or other i)rerogative writ— when an affidavit is required and the action is commenced by such process — (this fee not to be allowed for any affidavit referring in general terms to the facts set forth in the petition or pleading in support of which such aihdavit is made) 3 00 20. If a writ of capias ad resjyondendiim or any writ of attachment against moveables be sued out at any time after tiie institu- tion of the action (affidavit included) : — To the attorney suing out the same — In actions of first class 1-2 00 In actions of second class 10 00 21. On any declinatoi-y or dilatory exception, exception to the form or demurrer over-ruled — To the plaintiff's attorney 8 00 To the defendai: S's attorney 6 00 22. On any other plea overruled after law issue raised upon it — To the successful party 8 00 To the opposite party (j 00 23. On any dilatory exception maintained — To the plaintiff's attorney 10 00 To the defendant's attorney 15 00 * McGonviUe v. La lianque d' Hochelapa, 11 R. L. 1?9. ^ ■■•ill ■ ■ ■ ^i-t 776 advocates' fees m the superior court. 24. If the plaintiff be permitted to «.mend hia declaration after the filing of an exception to the form — To the defendant's attorney ^^ (jq 25. If the plaintiff be permitted to amend his declaration after the filing of a rJcraurrer - To tho defendant's attorney lo q^) 26. For all proceedings on any petition, motion or rule, not speci- ally provided for, upon whicl\ costs are ordered to be paid — To the party to whom <.08t8 aro awarded ;j ly (Same fee on motion or other proceedini.;^ to call in credi- tors, including affidavits.) 27. For putting in security for costs — To each attorney , z 00 28. i''or all proceedings respecting the putting in of sectu-ity in any case not otherwise provided for — To each attorney 5 oq 2&. Euqu^te tee in any contMsted cause tried by jury or jua,;«, to counsel ? 'tber than attorney of nrord,) filing appeiuance at, and actiuvliy oo^-'^uoting onqufite * 10 00 30. In cases to be tri "I by jury — To each attorney h u tlie pmpiration of factum 8 03 To each a, torncv for statenient of facts required by art, iiiiS C. C. P., iiK'luding copy for adverse party 3 00 31. In every case of trial by jury, where a motion is made for a new trial, or in arrest of judgment, or for judgment non obit'tnte veredicto, or for non-suit, where all or any of theso remedies are sought, one fee only to be allowed for the whole o?; the proceedings in each such case up to judgment therein — To each attorney (if action of Ist class) 1 1 (;ij To each attorney (if action of 2nd class) 10 00 32. On any hearing on tho merits ordered in a contested action — To each attorney 10 Ol 33. On any re-hearing ordered upon any pleading — To each attorney (i Oi 31. On any re-hearing ordered upon any rule or other proceeding not specially provided for — To eaclj attorney 3 0( 35. For all proceedings on a continuance of suit (reprise tVin- stance,) by i^tition or motion — To the attorney continuing the suit 10 0( To the attorney of adverse party 5 C( Costs as in action of second-class, if the continuance of • Corp. of Quebec v. Piton, 6 Q. L. R. 239 ; Thayer v. Iio»», 8 L. N. 90 Lalibert(f\. Paris, 6 q.'L.B.. 201. li. \:l HOB COURT. laration after the «7 00 declaration after 10 00 or rule, not speci- rdered to be paid— :\ 10 ;' to call in credi- i'. 00 g in of Becnifity in 5 00 , ' ■ ' id by jury or judjte, •d,) filing appeuraiice '' 10 00 . . . « 03 factum 8 required by art. :i03 ^ ^^ )arty notion is made for a or for judgment non ro all or any ot tlies.. lo be allowed for the 1 case up to judgment 11 (lO "_'//_' 10 00 ■'a contested action- ^^ ^^^ ^'^^^'"«-- (100 I'e or other proceeding 3 00 of suit (reprise d'in- 10 00 ".".'.... u CO if the continuance of ; T/jayer v.Jio««, 8 L.N. yO; ADVOCATES* PEES IN THE SUPERIOR COURT. 777 Bait be contested or if it be made by action, and also on pro- ceedings to have judgment declared executory or jugement commun. Sfi. On every copy of Bubp' ■'■•■■• 1. i ■ 'M Mi 1 \M IM ■li 780 advooateb' fbbb in the superior court. WRITS or ORRTtORAHI. 68. If settled before the filing of such writ — To petitioner If writ refused, to party Bhowin({ cause 69. If not settled before the filing of such writ— To petitioner li; To respondent lo $10 G OOMtfIB820N8, nOOATOIRKH AND 0RDKR8 FOR TBR EXAMINATION Of WITNESHI 70. To the attorney suing out the saino ') For the drawing of interrog' ^M till m$ ilip % If' ; ' ' ill 782 advooateh' phub in the superior court. 79. On appeal from Trinity Houae or othor tribunal to the Superior Court, if oontoated — Attorney for appoUant 9l!i) Attorney for reHpondent 1 'j If not contosted — Attorney for appellant 12 W. C. Mkreuitii, Chief Justice B. 0. ClIAUI.KM MONDELKT, J. J. HllOUT, J. C. R. A. roi.KITK, J. C. H. A. HlTART. J. IT HKHTilKI.nT, J. C. H. T. J. J. LoiiANdKn. J. C. 8. L. V. SicorrE, J. C. 8. F. 0. .lolINHON. J. H. C. J. T. Tahoiikiiead, J. C. 8. JOH. N. BOUHK, J. J. Maociuk, J. 8. C. F. W. ToiiUANCE, J. 8. C. Quebeo, 30th Docombor, 1808. PubliBhed in open court, ro({iHtorod and entered at Quebec, the 3( day of December, 1868. FiSET A DunRODOHH, P. 8. C Where a party inHcribin({ in review, files a discontinuance from inscription after appearance and factum have been tiled by the rvHpond and after the case has been put on the roll for hearing, the reHpondmit e'^^'^led to full fees as in a case settled before hearing. MUloij v. o'Br^ 27 L. C. J. 289, 8. C. C. 1880. ..V 6RI0R COURT. ttn»l to the Superior »'J0 110 '.'.".'.*.'.'. 1'^ "0 1'2 UO , Chief Justice B. 0. UKT, J. A. J.B. IT, J. tJ. B. iKn, bation are the attor- and the shall be nd if the [uent stage rendered, he original December 2ith, 1857, are r.ot 3f 38:— |om) I ' facts. $4 00 B 00 advocates' fees in the circuit court. 791 Gases of sixty dollars, or under. IST CLASS. 2nd class. 3BD CLASS. dOO or under, *40 or under, $25 or un- but but der. above $40. above 4t2S. On all proceedings in actions r ttled before return, except those on which additional fees are hereinafter al- lowed — To the plaintiff's attorney 1^2 50 *1 60 *1 00 On all proceedings, except as afore- said, in actions settled after return and before contestation, or in which judgment shall be given on confession, or by default, or ex parte without enqu^te, that is to say, without the examination in court of any witness or party— To the plaintiff's attorney t 4 00 2 00 150 And to the defendant's attorney on actions returned, or on congJ-iUfaut 2 00 1 60 1 00 On the same, if the judgment be given by default or ex parte, but with enqufite — To the plaintiff 's attorney 5 00 3 00 2 00 And to the deff.idant'a attorney 2 00 1 "jO 1 00 On the same, in actions settled or dis- continued after contestation — To the plaintiff's attorney 5 00 ;5 00 2 00 To the defendai t's iittorney 4 00 2.50 160 , On the same, when the judgment sliall be given after contestation — To the plaintiff's attorney (J 00 3 .'iO 2 60 To the defendant's attoraoy 5 00 3 00 1 60 . Ill all hypothecary or mixed actions settled before return an additional foe — To tl o plaintiff's attorney 3 00 .S 00 3 00 . If settled after enquete, or if judgment be rendered, an additional lee — To the plaintiff's attorney 4 00 4 00 4 00 See D'Aniour et al. v. Bourbon, under art. yi, C. C. P. ante. H' R '.' ■.V:'?. •JM 'km i i m 792 ADVOCATES FEES IN THK CIRCUIT COURT. IST CLAHH. 2nd CLABB. 3nD (XAS .■?0O or iintler, i>40 or under, $25 or ub but but dor. above HHQ. above 1^25. 8. In aotiona of damages for personal wrongs, (excepting in actions in which the court shall find the damages to be under 40 shillings sterling,) the costs to be taxed as of the class to be deter- mined by the final judgment, unless otherwise ordered by final judgment. 9. On each opposition to withdraw, to annul, or to secure charges, or other oppositions or interventions not con- tested $3 00 S2 .00 81 ■; 10. On all oppositions (excepting oppositions for payment), and interventions when contested, the same fees as in the orig- inal actions to which the same shall be incident. 11. On oppositions for payment, if contested, same fees as in original actions for a like sum. 12. On attachment aftur judgment uncon- tested 2 00 1 ."jO 1,^, If the garnisheo'u declaration be con- tested, same fees as in original actions for a like sum. 14, On suing out any writ of attaciiinont in rcvondication or simple attachment before judgment or on any special de- claration required by the Court — To the plaiutilT's attorney 1 ». For each copy, more than one of any declaration, petition, intervention or opposition •IC). In all incidental cross-demands, the same foes that arc allowed in original acti 'lis for a like sum. 17. For each plea required to be in writing ordered by the Court, including copy — To the defendant's attorney 1 •'iO 1 00 IC 2 00 (•) 1 ."iO 50 1 ( — •* ' The attorney of an incidental defendant upon an incidental dcnmi brought by |)Iaintiff under Art. ItO. fortho addition of new grounds action, and dismissed upon demurrer, has iij right to anv fees. Ilomii Bonnet, ■', Q. L. R. 72, C. C. 18711. ^-^. UlT COURT. ,HS. 2NUCLA8B. 3BD ( LASS. naer.>»40orund«r.»25ovun. ,t but ) a°^ 1 " . Tbe said bill is FORMS CONNECTED WITH THE CIVIL CODE. 797 !e. A. B., Not. Pub. ( A. B., me served upon I (3 D.^ ibe day of ,al place of business in ,j or, by depositing ',inHer Majesty's village,) on the day ►ostage thereon. A. B., Not. Pnh. in Lower Canada, at the request of , did exhibit the original bill of exchange, whereof a true copy is above written, unto E. F., the acc^^tQrj thereof, personally, {or, at his residence, office or usual place of business in ,) and, speaking to himself {or his wife, his clerk, or his serv- ant, &c.) did demand |p°^®^JJ^^*^® I thereof; unto which demand \ ^^^ J answered, " Wherefore I, the said Notary, at the request aforesaid have protested, and by these presents do protest against the acceptor, drawer and endorser {or, drawers and endor- ers) of the said bill, and other parties thereto, or therein concerned, for all exchange, re-exchange, and all costs, damages and interest, present and to come, for want of jacceptance) ^^ ^^^^ ^^.^ ^^m (payment j All which I attest under my signature. (Protested in duplicate.) A. B., Not. Pub. No. 4. S^ li In connection with article 2203. article 2203. loR FOR NON-PAYMENT OF A Ienerally. i^ndorsevients.) , in the year 18 , 1. ^^ knada, dwelling at PROTEST FOR NON-ACCEPTANCE OR FOR NON-PAYMENT OP A BILL PAYABLE AT A STATED PLACE. {Copy of BUI and Endorsements.) On this day of , in the year 18 , 1, A. B., Notary Public for Lower Canada, dwelling at , in Lower Canada, at the request of , did exhibit the original bill of exchange whereof a true copy is above written, unto E. F., the I f'JJALl thereof, at » ' ' (acceptor) ' lifr" ' ■ ii 798 FORMS CONNECTED WITH THE CIVIL CODE. being the stated place where the said bill is payable, and there, speaking to , did demand jpaymenT^j °^ '^® said bill ; unto which demand he answered, " ." Wherefore I, the said Notary, at the request aforesaid, have protested, and by these presents do protest against the acceptor, drawer and endorser, {or, drawers and endorsers) of the sa'.d bill, and all other parties thereto, or therein con- cerned, for all exchange, re-exchange, and all costs, damages and interest, present and to come, for want OMnoym t^^i of the said bill. All of which I attest under my signature. (Protested in duplicate.) A. B., Not. Pub. No. 5. ^ . In connection with article 2320. PROTEST rOR NON-PAYMENT OF A BILL NOTED, BUT NOf PRO- TESTED, FOR NOS-ACCEPTANCE. If the protest is made by the smr Notary %vhb r.oted the bill, it should immediately follow act of noting ani memorandum of service thereof, begt?tning with the words " And afterwards on, &c.," cr^ntinuing as in the last preced- ing form, but introducing between the word "did exhibit" the word " again ;" and, in a parenthesis, between the words " written unto," the words (" and which bill was by me duly noted for non-acceptance on the day of last.") But if the protest be not made by the same Notary, then it should follow a copy of the original bill and endorsements and noting marked on the bill, — and then in the protest HE CIVIL CODE. jaid bill is payable, and ( acceptance! ^j ^^^ (payment ) answered, " at the request aforesaid, mts do protest against the . drawers and endorsers) ies thereto, or therein con- age, and all costs, damages (acceptance^ B, for want of |pj^yuient ) ,' signature, d in duplicate.) A. B., Not. PhI). I. h article 2320. BILL NOTED, BUT NO! PRO- i-ACCEPTANCE. sair Notary tvhb iMted th Ihiv «ct of noting ami \ hegmning uith the word^ liming as in the last pme. \een the word " did exhibit hrenthesis, between the wonh id which bill was by me duly ^e day of hy the same Notai'y,thenii ininal hill and endorsemenU \ll-and then in the vroM FORMS CONNECTED WITH THE CIVIL CODE. 799 introduce in parenthesis, between the ivords '* written, unto," the ivords (" and which bill was on the day of last, by , Public Notary for Lower Canada, noted for non-acceptance, as appears by hid note thereof marked on the said bill.") No. 6. In connection with article 2320. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE GENERALLY. (Copy of Note and Endorsements.) On this day of , in the year 18 , 1, A. B., Notary Public for Lower Canada, dwelling at , in Lower Canada, at the request of , did exhibit the original Promissory Note, whereof a true copy is above written, unto , the promisor, personally, {or at his residence, office, or usual ^lace of business, in « ,) and speaking to himself {or his wife, his clerk, or his servant, &c.,) did demand payment thereof ; unto which demand 7^ i answered, ** >> Wherefore I, the said Notary, at the request aforesaid, have protested, and by these presents do protest against the promisor and endorsers of the said Note, and all other parties thereto or therein concerned, for all costs, damages and interest present and to come, for want of payment of the said Note. Ail which I attest under my signature, (Protested in duplicate.) A. B., Not. Pub. ill *''ti'i 11 800 FORMS CONNECTED WITH THE CIVIL CODE. No. T. In connection with article 2320. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE AT A STATED PLACE. , {Copy of Note and Endorsements.) On this day of , in the yejr 18 , 1, A. B., Notary Fubhc for Lower Canada, dwelhng at in Lower Canada, at the request of , did exhibit the original Promissory Note whereof a true copy is above written, unto , the promisor, at , being the . stated place where the said Note is payable, and there, speaking to , did demand payment of the said Note, unto which demand, he answered, " ." Wherefore I, the said notary at the request aforesaid, have protested, and by these presents do protest against the promisor and endorsers of the said note, and all other parties thereto or therein concerned, for all costs, damages and irfterest, present and to come, for the want of payment of the said note. All which I attest under my signature. (Protested in duplicate.) A. B. ' Not. Pub. FORMS CONNECTED WITH THE CIVIL CODE. 801 , in the ye *r 18 J. anada, dwelling at , f , did exhibit the B^of a true copy is above ,i8or,at »^fg*^^ >te iB payable, and ^^»^'^^' en^and payment of the said DBwered, ** ^ at the request aforesaid, :Bent8 do protest against the .e said note, and a 1 other ,rned, for all costs, damages ne for the want of payment Form No. 8. In connection with articles 2803, 2826. NOTARIAL NOTICE OF A NOTING, OR OF PROTEST FOR NON- ACCEPTANCE, OR OF A PllOTKST FOR NON-PAYMENT OF A BILL. iBt. {Place and date of noting or of protest.) Tj p. Q., {the drawer.) days at Sir, Your Bill of Exchange for $ , dated at the , upon E. F., in favour of C. D., payable after ? t I ^"'^ *^^^ ^^^' ** ^^^ request of A. B., Not. Pub. {Place and date of noting or of protest.) 2nd. To C. D. {endorser.) {or F. G.) at Sir, Mr. P. Q.'s Bill of Exchange for $ , dated at the , upon E. F., in your favour (orin favour of C. D.,) payable days after |?^i. and by you endorsed, was this day, at the request of duly , looted ) r • f non-acceptance. I (protested j y "le or | non-payment. J A. B., , " Not. Pub. 51 F. 0. c. p. ^,\m j:»N 'SM;' 802 FOBMS OONNEOTED WITH THE CIVIL CODE. Form No. ». In connection with articles 2808, 2826. NOTARIAL NOTICE OP PROTEST FOR NON-PAYMENT ,)F A NOTE. {Place and date of prote8t.) To at Sir, Mr. P. Q.'s Promissory Note for $ (days , the , payable \ months ion , dated at after date to IE F I **' °'^^®'» and endorsed by you, was this day, at , duly protested by me for non- the request of payment. A. B., ^ot. Pnh. No. lO. In connection with articles 2308, 2826. ACT OF NOTARIAL SERVICE OF NOTICE OF A PROTEST FOR NON-ACCEPTANCE OR NON-PAYMENT OF A BILL, OR OF NON- PAYMENT OF A NOTE (to be subjoined to the Protest.) t And afterwards, I, the aforesaid protesting Notary Public, did serve due notice in the form prescribed by law, of the foregoing Protest for { IZZZ'^r 1 »'">« { non-payment 1 note thereby protested upon {^'2*' 1 *^e ( ^'*^^^ ^ ally, on the day of endorsers ) P^""^*^"' (or, at his residence, rHE CIVIL CODE. iles 2808, 2826. NOS-PATfMEST ;F A HOTE. FORMS OONMEOTED WITH THE CIVIL CODE. 803 or , dated at blelffiontbel after date to Von ) ed by you, vfas this day, at Uy protested by me for non- A. B., JVot. ?«!). lO. rticles 2303, 2326. , NOTICE OF A PROTEST FOK LmEKTOFABILL OBOF.0K. \hpin^^ io the Protest.) paid protesting Notary Publk Lm prescribed by law of tbe Etcceptance 1 ^f tbe \ ^^^^ bayment ' ^ f A , ( drawer I person- r\ tbe lendorsers »^ ■" {or, at bis residence, office, or usual place of business in , on the ; or, by depositing such notice, directed to the Baidj^'gyjat , in Her Majesty's Post Office in this city, (town or village), on the day of , and prepaying the postage thereon. In testimony whereof, I have, on the last mentioned day and year, at aforesaid, signed these presents. A. B. Not. Pub. No. 11. In connection with articles 2304, 2305, 2820, 2327. PROTEST BY A JUSTICE OF THE PEACE (WHERE THERE IS NO notary) FOR NON-ACCEPTANCE OF A BILL, OR NON-PAYMENT OF A BILL OR NOTE. (Copy of a Bill or Note and Endorsements.) On this day of , in the year 18 I, N. 0., one of Her Majesty's Justices of the Peace for the District of , in Lower Canada, dwelling at {or near"* the village of , in the said District, there being no practising Notary Public resident at or near the said village, {or any other legal cause,) did at the request of and in the presence of , a house- holder in the said District, well known unto me, exhibit the '1*11 ^ whereof a true copy is above written original note unto P. Q., the thereof, personally, {or, at his drawer acceptor promisor residence, office, or usual place of business in ,) I and speaking to himself, (his wife, his clerk or his servant. A ;1 !'■:■; 'n^f ':^m. 804 FORMS CONNECTED WITH THE CIVIL CODE. «&c.) did demand ^ [thereof unto which demand •■' |an.wered, "'^'"°" she ti Wherefore I, the said Justice of the Peace, at the request aforesaid, have protested and by these presents do protest ( drawer and endorsers , against the j promisor and endorsers ( acceptor, drawer and endorsers of the said j . [ and all other parties thereto and therein con- cerned, for all exchange, re-exchange, and all costs, dam- ages, and interest, present and to come, for want of acceptance payment of the said bill note. All which is by these presents attested under the signa- ture of the said {the witness) and under my hand and (Protested in duplicate.) (Signature of the witness,) {Signature and seal of the J. P.) No. 12. In connection with article 2837. SCHEDULE OF FEES AND CHARGES. For presenting and noting for non-acceptance any Bill $ cts. of Exchange, and keeping the same on record 1 00 Copy of the same when required by the 'holder 50 For noting and protesting for non-payment any Bill of Exchange or Promissory Note, Draft or Order, and putting the same on record 1 00 HB CIVIL CODB. 30f unto vrhich demand [the Peace, at the request these presents do protest ^'* „ I of the said rsers [ id endorsers ) , thereto and therein con- aange. and all costs, dam. ad to come, for v^ant of FORMS OONNEOTBD WITH THE CIVIL C0I>E. 806 hill \ lote. ) ,t8 attested under the signa- ad under my hand and seal. ted in duplicate.) . the witness,) \ncl seal of the J. P-) 12. ith article 2837. BB AND CHAROES. pon-acceptance any Bill $ct5^ L same on record 1 ted by the holder .....0 50 tnon-paymentanyBiU [y Note. Draft or Order.^^ Bcord For making and furnishing the holder of any bill or note, with duplicate copy of any protest for non- acceptance or non-payment, with certificate of ser- vice and copy of notice served upon the drawer and endorsers 60 For every Notice, including the service and recording copy of the same, to an endorser or drawer in ad- dition to the postages actually paid 60 No. 13. In connection with article 2184. FORM OF ▲ DEED OF DAROAIN AND SALE EXECUTED BEFORE WITNESSES. This deed, made the day of , &c., be- tween A. B., of &c.. of the one part, and C. D., of . &c., of the other part, witnesseth : That, for and in consideration of the sum of to the said A. B. in hand paid by the said C. D.. at or before the execution of these presents, (the receipt whereof is hereby acknowledged by the said A. B.,) he, the said A. B. doth hereby grant, bargain, sell and confirm unto the said C. D., his heirs and assigns for ever, all that certain lot of land, &c.. {insert here a description of the property sold) : To have and to hold the said lot of land and premises hereinbefore granted, bargained and sold, or intended so to be, with their and every of their appurtenances, unto the said C. D.. bia heirs and assigns forever. In witness, &c. A. B. Signed, sealed and delivered in the presence of E. F., G. H. CD. [L. S.] [L. S.] 1 ' . 'V ; 4\ 'I ' s.s ,S,: M i- > ill 806 FORMS OONMBOTID WITH TBB CIVIL OODB. No. 14. In oonnection with article 2189. MEMORIAL OF A DBDD OF BARGAIN AMD BALE EXECUTED BEFORE WITNESSES. , A memorial to be registered of a deed of bargain and sale, bearing date the day of , in the year of our Lord , made between A. £., of , Esquire, of the one part, and C. D., of , <&c., of the other part {a full description of the parties to be insnrted, as in the deed), by which said deed the said A. B., for the considerations therein expressed, did grant, bargain, sell and confirm unto the said C. D., his heirs and assigns, all that, &c., {insert a description of the property sold) : To hold to the said G. D., his heirs and assigns for ever : Which said deed is witnessed, &c., {specify here the names of the wit- nesses to the execution of the deed) ; and the said deed is re- quired to be registered by the said C. D. As witness bis hand, this day of , &c. C. D. Signed in the presence of J. K., L. M. No. 15. * In connection with article 2041. MEMORIAL OF A DEED OF BAROAIN AND SALE, BY WAY 01 MORTGAQE, BEFORE WITNESSES. A memorial to be registered of a deed of bargain and sale bearing date the day of , in the year o our Lord , made between A. B. of, &c., of the on part, and G. D. of, &c., of the other part, by wbicl IHB CIVIL CODB. article 2189. A«D BALE EXEOUTBO BEFORE iEBt a deed of bargain and sale, q( , in the year of tween A. B'» of ; 1 Dm of ,&C.,0f l'o/f/teparti««tobei)wrted, deed the said A. B., for the a did grant, bargain, Bell and iB heirs and aBBigns, all that, .property sold): To hold to ,8signs for ever: Which saul fu here the names of the uU- fed) ; and the said deed ib re- ie said C. D. As witness his • C. D. f FORMB OONmBCTBD WITH THE CIVIL CODE. 807 15. bith article 2041. Lain akd bale, by m^ of [ore witnesses. Id of a deed of bargain and sale, Lof .in the year of ft^een A. B. of, &c., of the one Ic. of the other part, by which 8aid deed, the said A. B., did grant, bargain, sell and confirm into, the said CD., bib heirs and asBignn, all that &c., {here insert a description of the mortgaged premiaea). To hold to the said C. D., his heirs and assigns forever; subject, nevertheless, to redemption, upon payment to the said C. D., his heirs, executors, curators, administrators, or assigns, of the sum of dollars, and lawful interest, as in the said deed is expressed ; which said deed is witnessed — {specif g here the names of the witnesHea aa in form 14). And the same deed is hereby required to be regis- tered by the said C. D. As witness his hand, this day of, &c. Signed in the presence of E. F., G. H. CD. No. 1«. In connection with articles 2098, 2139. MEMORIAL OF AN ONEROUS DEED OF GIFT INTER VIVOS. A memorial to be registered of a notarial copy of a deed of gift inter vivos, bearing date at on the day of iu the year of our Lord , made between A. B. of, &c., (and C D., his wife by him in this behalf duly au- thorized), of the one part, and E. F. of, &e., of the other part, {a full deacription of the partiea to he inserted, as in the deed ;) before G. H., public notary and witnesses, {or before J. K., and another, public notaries, as the case may be,) by which said deed of gift, the said A. B., and C D., his wife, did give, grant and confirm unto the said E. F., his heirs and assigns, all that, &c., {insert a description of the property conveyed by the deed of gift) to hold to the said E. F. his heirs and assigns for ever ; subject, ne 3rtheless, to a certain life-rent, consisting of &c., {here insert the partictdara ' H* 1 ■'I J' 't m is; .., 1. ' Si 808 FORMS CONNECTED WITH THE CIVIL CODE. of ivhich the life-rent is composed) which said life-rent is payable by the said E. F., to tJie said A. B., and C. D., his wife, each and every year during the term of their natural lives, and in the said deed of gift inter vivos, is expressed : And the said deed of gift is hereby required to be registered by (the said E. F.) As witness his hand, this day of &c. ' E. F. Sigr ^ in the presence of ■ L. M., N. P. No. 17. In connection with articles 2098, 2139. MEMORIAL OF A WILL, OR OF A PROBATE, OR AN OFFICE COPY, OR A NOTARIAL COPY THEREOF. A memorial to be registered of the probate {or, of the original will, or an office or notarial copy, or as the case wu/, be,) of the last will and testament of G. H., late of bearing date, &c., by which will the said testator did give and devise unto, &c. (as in the will,) to hold, &c. ; which said will was executed by the said testator, in the presence of A. B. of, &c., C. D. of, &c. : And the probate of the said will, (or the original, or an office or notarial copy, or as the case may he,) is hereby required to be registered by (0. P., one of the devisees therein named). As witness his hand, this day of 0. P. Signed in the presence of - R. S., .,, ' T. V. THE CIVIL CODE. i) which said life-rent is le said A. B., and C. D., during the term of their ieed of gift inter vivos, is ■ gift is hereby required to As witness his hand, this E. F. L7. L-ticles 2098, 2139. A PROBATE, OR AN OFFICE (Ju COP'S THEREOF. of the probate {or, of the tarial copy, or as the case maj tent of G. H., late of ill the said testator did give he will,) to hold, &c. ; whicli laid testator, in the presence And the probate of the said ice or notarial copy, or as th [d to be registered by (0. P., Led). As witness his hand, . 0. P. FORMS CONNECTED WITH THE CIVIL CODE. 809 No. 18. • i In connectJon with articles 2098, 2139. MEMORIAL OF A NOTARIAL OBLIGATION. A memorial to be registered of a notarial copy of a nota- rial obligation (or of the original, if it be the original) bearing date the day of , in the year of our Lord , made and entered into by A. B. of , &c., before E. F., public notary and witnesses, (or before G. H. and another, public notaries, if the case be so) whereby the said A. B. owned himself to be indebted to C. D., of , , &c., in the sum of dollars, to be paid, &c., — and for securing the payment of the said sum of money and interest, hypothecated all that, &c., {insert the description of the hypothecated premises as contained in the notarial obligation :) Which said notarial copy of the said iiotarial obligation is hereby required to be registered by the said C. D. As witness his hand, this day of , &c. CD. Signed in the presence of J. K., L.M. No. 1«>. In connection with articles 2117, 2139. MEMORIAL OF THE APPOINTMENT OF A TUTOR TO MINORS FOR THE PRESERVATION OF THE LEGAL OR TACIT HYPOTHEC, RESULTING FROM SUCH APPOINTMENT. A memorial to be registered of the appointment of A. B. of, &c., {insert the place of abode and addition of the tutor ;) to be tutor to C. D., E. F., &c., minors under the age of ^: ~\r if i'f I. :, i H I 1. 1.! « •ii If m0 t'.'.t •' fill.'' I 810 FORMS OOMNEOTED WITH THE CIVIL CODE. twenty-one years, issue of the marriage of the late G. H., {the name of the father) deceased, with the late J. K., {the name of the mother) also deceased, which appointment was made by and under the authority of L. M., {insert the name and description of the Judge by whom the appointment has been made ;) at, &c., {the place where the appointment was made) on the day of in the year of our Lord : And the said appointment is hereby required to be registered, for the preservation of the hypothec resulting therefrom, on the real estate of the said A. B., situate in the of {the name of the registration county or division within which the registration is to be made, and describe the property) by N. 0., of i&c. {Insert the name and description of the person requiring the registration). As witness his hand, this Signed in the presence of 0. P., day of &c. N.O. Form No. 20. In connection with articles 2121, 2139. MEMORIAL OF A JUDGMENT. A memorial to be registered of a judgment in Her Ma jesty's Court of , at in the year of our Lord , between A. B. of , &c., plaintiff, and G. D., of , &c.. defendant, for dollars, with interest from, &c and costs taxed at dollars ; which said judg mentwas rendered on the day of the said month of , and is hereby required 'HE CIVIL CODE. irriage of the late G. H., jtiih. the late J. K., {the which appointment was of L. M., {insert the name vhom the appointment has vhere the appointment wa« in the year of our ntment is hereby required irvation of the hypothec estate of the said A. B., the name of the registration le registration is to he made, 3. of &c. {Insert the name idring the registration). As ay of » ^^^ ^ N.O. FOBMS OO'TEOTED WITH THE CIVIL CODE. 811 .20. rticles 2121, 2139. JUDGMENT. of a judgment in Her Ma- , between A. n., U C. Dm of > ^'- irs, with interest from, &c., dollars ; which said judg- day of the said , and is hereby required to be registered by ue said A. B.). As witness his hand, this day of , &c. A. B. Signed in the presence of J. F. T. P. Form No. 21- In connection with article 2151. CERTIFICATE OF DISCHABOE FROM A JUDGMENT WHICH HAS BEEN BEOISTERED. To the Registrar of I, A. B., of, &c., do hereby certify that C. D., of, &c., hath paid me the sum of money due upon a judgment recovered in Her Majesty's Court of ^ at in the year of our Lord by me, the said A. B., against the said G. D., for dollars, debt, and * dollars, costs, which judg- ment was registered on the day of in the year of our Lord ; And I do hereby require an entry of such payment to be made, in the regis- ter wherein the same is registered, pursuant to l&v^ . As witness my hand, this in the year of our Lord, &c. Signed in the presence of J. K., of L. M., of day of A. B. •fee. , &c. r If' -n'^ 'I i I'll- m m I fM V.' ■>■ \ ■t II r! ■it'-' lit, I i _j^ — 812 FOIIMS CONNECTED WITH THE CIVIL CODE. Form No. 22. In connection with article 2151. A CEHTIFIOATE TO DISCHAROE A MORTOAQE. To the Eegistrar of I, A. B., of, &c., {the mortgagee in the deed, or hia heirs, executors, curators or administrators), do hereby certify that G. D., of, &c., hath paid the sum of money due upon a deed or mortgage, bearing date the day of in the year of our Lord made between the said G. D., of the one part ; and me, the said A. £. {or E. F., as the case may be), of the other part ; which was registered on the day of in the year of our Lord ; and I hereby require an entry of such payment to be made in the register wherein the same is registered, pursuant to law. As witness my hand, this day of in the year of our Lord Signed in the presence of 0. P., of, &c. K. S., of, &c. A. B. No. 23. In connection with article 2ir»l. A CERTIFICATE TO DISCHAROE A NOTARIAL OBLIGATION AXD EXTINGUISH THE HYPOTHEC THEREBY CONSTITUTED. To the Eegistrar of ^ . I, A. B., &c., {the hypothecary creditor, his heirs, executon, curators or administrators), do hereby certify that C. D., of, &c., hath paid the sum of money due upon a notarial . obligation, bearing date the day of in the year of our Lord , made by the CHE OIVIL CODE. FORMS CONNECTED WITH THE CIVIL CODE. 813 NOTARIAL OBLIGATION AND THEREBY CONSTITUTED. creaitor, his heirs, executon, hereby certify that C. D., noney due upon a notarial day of , made by the C. D., to me, and in my favour, {or in favour of G. H., as the case may be), a» the obligee therein named, before E. F., public notary and witnesses, (or before E. F. and another, public notaries, as the case may be), which was registered on the day of , in the year of our Lord ; and I do hereby require an entry of such payment to be made in the register wherein the same is registered, pur- suant to law. As witness my hand, this the year of our Lord Signed in the presence of J. K., of L. M., of day of in A. B. &c. , &C. No. 24. In connection with articles 2115, 2120, 2121. To the Registrar for the County {or Registration Division) of Sir, I hereby notify you that the following real property, lying in your County {or Registration Division), that is to say {describe the property sufficiently, as then required by the Civil Code, observing the requirements of article 2168, if it is then in force in such County or Registra- tion Division), is now in the possession of A. B., of as his property ; and I give you this notice, to the end that the said property may become bound and affected by the general hypothec on the lands and real property of of created by {describe the instrument as in Form No. 36 j, which is already registered {or herewith filed for registration) in your office in favour of C. D., of (party in whose favour the hypothec exists), and may be indexed by you as being so bound and affected. Witness my hand, this day of 18 E. F. Quality in which E. F. acts. :!m '':\^^'\4 •ii:''>- :':'■' t 814 FORMS 0ONME0T£D WITH THE CIVIL CODE. ; No. 25. , In connection with article 2181. To the Registrar for the County {or Registration Division) of Sir, — Take notice, that I hereby renew the registration of the hypothec created by the {describe the instrument as m Form 24,) registered in your office, on the day of 18 and binding and affecting the following property lying in the County {or Registration Division,) that is to say {describe the property as in Form 24,) which property is now in the possession of C. D., of &c., as the owner thereof. Witness my hand this day of 18 E. F., Quality in which E. F. acts. No. 26. In connection with article 2172. To the Registrar of the County {or Registration Division) of Sir, — Take notice, that the property mentioned in and affected by the {describe the instrument as in Form 24), filed for registration in your office, on the day of is properly described under the provision of article 2168 of the Civil Code, as follows {insert the description as required by the said article showing clearly of what number or numbers, or what part or parts of any number or numbers in the proper plan and book of reference such property consists) ; and I give you this notice under the requirements and for the purposes of the said article. Witness my hand, at this day of 18 A. B. HE CIVIL CODE. trticle2131. {or Begistration Division) oy renew the registration pscrihe the inatrument as m office, on the (inding and affecting the County {or Begistration the property a« in Form 24,) isession of C. D., o' day of 18 E.F., tlity in which E. F. acts. APPENDIX. article 2172. y {or Begistration Division) [property mentioned in and \i8trument as in Form 24), ^ce, on the tlay sscribed under the provision :ode, as follows {insert the lid article showing clearly oj part {eneral rule a judicial admission is indivisible. Foiiniicr v. .l/w,'« 11 Q. L. R. 98, Q. B. 1885. Art. 223, p. 179 : An admission by a party that ho received a sum of money hut who claims that it was donated and not lent to him, may bo divided when it is improbable that a donation was made ; and such admission, sodivideil, may serve as a commencement of proof in writinf». Ltiji-iuumf v. /,,<. traverse, M. L. R. 1 Q. B. 321 ; 4 Q. B. R. 184, 1J85, Art. 234, p. 181 : Where it was moved to reject an inscription "on the n7t; (l\'iiiiiicte for the adduction of evidence " because no consent thereto had been j^'ivcn, it was held that such consent was retjnivcd only in the case of art. '2H|, ami that, under the inscriptioji as worded, the evidence mit»ht bo taken micl( • art. 23(5 or art. 2(53. Low v. Ihiin <<> ridllipg, 8 L. N. 201, S. C. 1885. Art. 236 : See Low v. Bain, supra. Art. 203 A 47 V. c. 3, s. 4, p. 19(5 : A stenoj^rapher, thouf^h employed by the attorney ad litem of one ot the parties to take the evidence of his witnesses, is nevertheless lui oftirer of the court, subject, as regards the performance of his duties tiiid the payment of his fees to the orders and direction of the protlionotiiiv, and consequently, the party so employiun hiui is relieved of all liability for the stenographer's fees, when .he depoHits the amount llioroof in t!i" hands of the prothonotary. Morrin v. Curric, M. L. R. 1 S. C. 'iriH, S.C. 1885. Art. 317, p. 212 : When a plaintiff who has foreclosed defendant from pleadintjf^ivcsliim notice of cnqnHe for a certain day, and does not proceed on that diiy, ho cannot proceed on a subsequent day without giving fresh notice. I'umUs V. Poirier, 11 Q. L. R. 82, S. C. R. 1885. Art. 330, p. 217 : Where the jurat, certifying the fact that the expert had taken thoneces sary oath, has been mislaid and cannot be found, the report maybe Al'PENniX. 819 atnoiulod upon application to tho court, so an to allow tho export to add thoreto his uflldavit to the effect that ho was duly aworn. .S'i7f«/ v. Papi- neau, (lit Detnonliunif, M. L. U. 1 8. C. 'i'J?, H. C. 1885. indivisiblo. Fournicr v. Mmn, Art. 3!J9, p. 222 : Reports of oxi)ertB should as far as possible be favourably rccoivcd by tlie courts, and should not be rejected except there exist irregularities or ilioi,'alitio8 from which some of the parties may suffer. Cunnavan v. liryaon, M. L. R. 1 S. C. 221, 8. C. 1884. Art. 4(52, p. 208 : An api»earance of which no copy had been served upon the plaintiff's attorneys was rejected as irroftulur, and plaintiff allowed to proceed as in a caso by default. Pipe v. Vrevier, M. L. R. 1 8. C. 2.W, 8. C. 1884. li 'Si 1 Lv the attorney ad hU-m of one o! ^vitnesacB.isneverthelcH.uotor orformance of his dnticH .uuU e End direction of the pvo -- : , li„« bin. is relieved of all hal.> , ^epo^its tho -no-f Ihoreo.^.^..' 11 defendant from pleadn.^ .. n L does not proceed on that ^. 'vithout giving fresh notice. U .that the expert had taken the nece. Luot be found, the report maj be Art. 407", p. 271 : Whore plaintiff failed to return the writ of summons on the day of return, but issued another summons, it was held that the latter writ could not bo considered as an alias writ, and should bear the stamps required for an orif{inal writ. A defendant is not put in default by tho service of a writ which does not bear the stamps rociuired b> law ; and the absence of stamps renders the demand null, and the suit may be dismissed upon exception to the form. lUendeau v. Casey, M. L. R. 1 8. C. 391, 8. C. 1885. Art. 478, p. 277, No. 1 : ■ A lawyer has no rijjht of action against a defendant to recover the costs of a letter written to the defendant, even where the latter has pi'omised to liis creditor to pay the costs. Lareau v. Leclerc, 8 L. N. 344, C. C. 1885. Art. 482, No. 5, page 288, followed in Dissonnette v. Dunn, M. L. R. 1 8. C. 23.5, 8. C. 1885. Art. 494, No. 13, p. 297 : . An inscription in review of a judgment rendered upon a petition con^ testing a municipal election, will not be received, and may bo dismissed upon motion. Beauchemin v. JIus, M. L. R. 1 8. C. 413, 8. C. R. 1885. Art. 505, p. 305 : The neglect of a hypothecary creditor to contest the opposition to secure cliargea of the donor, at the proper time, is a bar to his contesting it after judt;ment on the opposition by means of a petition or a tiers-opposition, unless ho establish the existence of fraud, artifice or gross informalities. Uathieu v. Vachon, 11 Q. L. R. 102, Q. B. 1885. ■ Im^ m' ill!':. ■> 820 APPENDIX. Art. mo, p. 800 : A tieroo-oppositinii <1ooh not •tupoiul the oxooution of tlio jiidKnutnt, ai,i| A Ki^riiiHlioo who haa tiooii condetniiud to pay tliu plaintiff ciiiinot otfrr to dopoHit tiio Bum in court inatend of paying it over to plaintiff, //.' /;,.///. /tuilh V. lion*, M. L. R. I 8. C. 818, B. C. 18Hfl. Art. Ml, p. 812: Appullunt who waH sued to account, and for a Htiin of ? 1,000 wliiuh the reBpoiident claimed an bein({ tho proceudH of the huIu of a iiousu, aimworud that he had always been ready to render an account of hiHachniniHtnitjou and rtlod an account with IiIh picas by which lie claimed that tlaiv was a balance due him of $'2,71'.M'.) ; and as to tho item of 1^1,001), Im (|(>iiiuil that ho owed it, and prayed for the dismissal of the action, 'riic ris|ioi|. dent petitioned to have tho account rejected as bein^ prematu cly uul irregularly tiled, inasmuch as tho appellant denied tho ieHp(iniiniit'» ri^ht of action, and should have awaited a decision on this point '^foie producing it, and imismuch as the appellant had charged certain items in the achodulo of exiKtnditures which had nothing to do with his adiiiinis. tration ; hflil, reversing tho jndf^ment of tlin court below, that the lUTount was neither prematurely nor irregularly lllcd, since tho re^pomleia \w\ demanded it by his action, and as to the second point, that he hud a right to charge every sum duo him by tho respondent, saviiij; f|ie lattor'a right to contest any overcharges or niis-upplications of fumlD. Dorion v. Dorion, 4 Q. B. R. 85, 1884. Art. 554, p. !m : Under a writ of ^fi.J'a. Di I'(,ni» <0 De Tenh, the sheriff ought to adver- tise the sale of the immoveables only after tho moveables have boon discussed. Advertising the sale of tlit immoveables is proceeding to their Bale within the meaning of C. C. I'. 554. Union Hank v. Dawnon, 11 Q. L. K 131, S. C. R. 1885. Art. 555, p. 325 : Where upon e -vrit of execution the full amount duo had been rbalizel, and a judge's order was granted for the issuance of another writ of execution because it was alleged the defendant was insolvent, thu order was set aside, the solo recourse b^^ing a conservatory process, if dufondaiit were dissipating his property. Bury v. Samuel, 4 Q. 13. 18?, 1885. Art. 562, p. 334 : A guardian who has left the articles seized in the defendant's sion may nevertheless attach them by revendication if he have just reiisou to fear they may disappear and the defendant refuse to give tliem up. A party who intervenes in such a case must look to the defendant for his o^uts, if the plaintiff admits the intervention except as to the demand for CC8«. ■ upaul \. niieekr, M. L. R. 1 S. C. 1884. v_:i; APPPNnix. B21 'iVrrM, the BheriffonuM to a.lver. ly after the moveablcH have boon able« is proceeding to their nale fall amount duo had been rM lie issuance of anoti^ur .r>t of de endant was iuBolvent the order a conservatory proceBB..{aeiendaat L,8 seized iu lue defendants posses- 1evendicationifhehaveiustre.« defendant refuse to give them p. "must look to the defendant for us ^eTuon except as to the demand lor , S. C. 1884. Art. 808, p. 886 : A enHo under the Quebec A«!t of 1H7H to Hell licjuora ounnot be seized. Van de Vliet v. lu'itiou, M. L. It, 1 H. C. 21(,, R. i). 1885. Art. Ml. i>.Ml: Am opixmition baHod on the fact that tlio hiHt of the eiuht diiya was a Suiiilay and should not bo coniimtod, wuh disuiiaHod on ntution. Denis v. Uenii.»h.'S.H'i,C.C.im5. Art. r)8'J, p. 84'2 : A (.{uiirdiiin i ppointod under a fh'Ht sei/.uvo cannot ask that a second geizirt""! tie same movotihliiH be set aside. He can ask for his own iliHclv 1^1) or Ic bo substituted in tho place of the ^,'uardiun secondly nani't.l l.eji-bvre v. liacon, 11 Q. L. U. '28, 8. C. II. IHH.I. Alt. u8«, p. 84(5: A plaintiff who has filed a contestation to an opposition cannot aftor- wiinlH move to rojoct it. \\ iioro an answer in law to an opposition is filed, tho opposant may at once iiiHcribo for hoarin>< in law, but tho plaintiff cannot do ho until after tlio ci;^lit days have elapHcd which aro allowed for answering the demurrer. /,„,,. V. llttiii, 8 L. N. 110, 8. C. 1885. Art. (ill, p. 857 : //('W,— following Monk v. Atloniey-Genertil, 1!) L. C. J. 71, that tho privile},'o of the Crown for its claims over those of private competing cre- ditors is to bo governed by tho civil law of the Province of Quebec, derived from France, and not by tho law of I'higland : that in the absence of any i;i)ecial privilege, the Crown has a preference over chirograi)hic creditorf for deposits due to it by a bank in li'iuidation. Tlif Qinen v. The Kxchonye Ihnk of Camtda, 8 L. N. 'iiU, M. L. 11. 1 Q. B. ;i02, 1885. Art. (512, p. .S57 : The share or interest of a partner in a partnership may bo seized by gftrnishnient, and the partners condemned jjcrsonally to pay the seizing plaintilT any moneys wliich they may have to pay to their partner whose share has been seized, from the date of the service of the garnishment. A garnishee, mombi r of a commercial firm, and who makes a declara- tion for it, as garnish •«, that tho defendant has an interest in the partner- ship, may bj forced lo declare what was the capital of tho partnership of which defendant was a mom ber at the time of tho seizure. Laframhoise y.iiolland, M. L. 11. 1 H. C. 366,3(57, S. C. 1885. Art. 638, p. 375. If a block of land cH>nD|)Osed of several sub-divisional lots is seized and sold as one, the s]u'*'iff oannot charge the 50 cents per extra lot provided for by tho tariff fcv-^xtra lots. M- ill 822 APPENDIX. Although a block of land may have been sub-divided on the official plan, the sheriff is not bound to sell the official sub-divisional lots sepa- rately, if they have not been defined on the ground and if the land in used as a whole. The sheriff may be ordered by a judge in chambers to seize and to sell the land as a whole. Gale v. The Can. Iron d' Steel Co., M. L. R. 1 S. C. 441, S. C. C. 1884. Art. C63, p. 391. Where the sale under a writ of /?. fa. has not taken X)lace owing to an appeal to the Supreme Court followed by the giving of security and a Judge's order to stay proceedings, the plaintiff is not entitled to a vend. e.r., but must proceed by means of an alias Ji. fa. Union Bank v. Daicson, U Q. L. R. 131; S. C. R. 1885. Art. cm, p. 40(5. A registrar when furnishing to the sheriff a certificate as to several lots of land sold, is not entitled to make separate certificates for each lot sold when but one requisition covering all has been filed with him bv the sheriff. Morr's v. The Can. Iron d; Steel Co., M. L. R. 1 B. C. 120, ij. C. 1885. The following articles are added to art. 711, p. 415, by 48 Yict c. l'2, B. 14, (Que): 711 a. The sale of immoveables, situate in this province, mtule bv liquidators in virtue of section 35 of the Federal Act, 45 Vict. va.\). 'i'.',, and followed by the formalities hereinafter mentioned, has the effect of a sheriff's sale. 711 b. A copy of the deed of sale and the certificate from tlio rej^istiar mentioned in article 9r»6 of this code must be deposited with the licniidator, 711 O. Notice of such deposit, with mention of the names of those who possessed the immoveable during the last three years, must be f^iveii, during one month in the Quebec Oflicial Gazette, and bo rentl ;iiut posted at the place and in the manner mentioned in art. 1)52 of this code, on the second .Sunday preceding the delays for bidding hereinafter nieutioned. 711 d. During the fifteen days following the last insertion of the notice in the Oflicial Gazette, any creditor of the company in liquidation, and any parson having hypothecary or real rights upon the immoveable sold, have' the right to offer an increase over the purchase price mentioned in the deed of sale, provided such increase bo at least one-tenth of the whole price, and that the bidders offer beside to refund to the puic". .vser Ins costs and lawful disbursements, and give him for that purpose security in the ordinary manner or deposit a sum sufficient for that purpose in the discretion of the court or judge, reserving the subsequent comple- tion of the precise amount. • Sic. APPENDIX. 823 been Bub-divided on the official official sub-divisional lots sepa- le ground and if the land is used I by a judge in chambers to seize The Can. Iron d: Steel Co., M. L. has not taken place owing to un by the giving of security and ii dntiff is not entitled to a vend, ex., i.fa. I'liion Bank v. DdiMxi, 11 sheriff a certificate as to several ie separate certificates for each lot g all has been filed with lain by .SU'fi Co., M. L. li. 1 S. C. 120, K. 3 art. 711, p. 415, by 48 Vict. c. ", situate in this province, made by the federal Act, 45 Vict. cap. -j;!, after mentioned, has the cllect of a k1 the certificate from the rcKistrnr ustbe deposited with the liquidator. mention of the names of those wi;o last three years, must he nivon, Lai Gazette, and be read and i-ostod ,ned in art. 1)52 of this code, on tlie •or bidding hereinafter nieutioned. ,ing the last insertion of the notice Jie company in lio..,8L.N.90.S.C.18Bl. IN DEX. 30 file his Abandonment of Property : By debtor arrested under Capias .. By trader who has ceased his payments . . Such trader may be required to abandon . . Means of effecting Notice to be given in the Gazette, and to the creditors Debtor admitted to bail must file statement within days after judgment Party condemned to pay more than $80 bound to statement, if required, after discussion of property . . Debtor in jai^ may file statement at any time . . Appointment of Guardian, Curator and Inspectors Suspension of ulterior attachments Curator gives notice of appointment And gives security if required. . Appointment of Curator to absentee debtor Curator assumes and administers property Rights and powers of Curator Distribution of moneys Delay for contesting dividend sheet Contestation must be proved within the same delay Debtor bound to attend before Court or Judge to examined . . Imprisonment of debtor if he fails to attend or answer or if plaintiff succeeds . . Liability of sureties if debtor be not surrendered Discharge of debtor if the contestation fail, effects of liffects of abandonment Discharge of debtor . . Kights of Bailleur de Fonds upon. . . . 33 V. c. Abandonment of suit : During jury -trial [See Discontinuance). Abbreviations : Table of . . . • . . . • • • • • • • Abroc.ation : Of laws of procedure by Code Abskntee : Service of summons on If in any other province Service of proceedings on . . Service of triplicate of seizure on . . ART. 7C3 763 7G3a 7<54 765 766 706 767 7()8 7(i9 770 770a 780 771 772 772a 773 774 be' •■| 775 ei. 776 , , . 776 .. 777 , , 778-9 , , 793 16 •• 395 1360 68 69 84 570 PAGE. 440 440 440 440 441 441 441 443 443 443 444 444 448 444 444 445 446 446 446 446 446 447 447 453 528 241 723 60 62 72 337 f-i'S ' ;'l.; 828 INDEX. Absentee — continued. Service of sbizure by garnishment when defendant was summoned as an Service of attachment before judgment . . Boryice of faits et articles on Power of attorney may be required from a plaintiff who is an In improbation . . None required in recusations Delay upon execution of judgments against Opening of doors, &o., where debtor is absent . . Security for costs by AcCOrNTANTS AND PRACTITIONERS : Eeference to — powers of Remuneration of Motion for adoption of report Reception of report . . May be appointed in actions to account . . AccouNTiNo ; Judgment ordering an account must lix delays to render it To whom made — must be s,worn to and fyled with voucher — extension of delays Form of Receipts Expenditure . . Execution may issue for excess of receipts, if any Contestation . . Same attorney to be named by all contesting parties Delay to answer contestation and to reply Failure to fyle contestation, answers, etc. Proof or reference to arbitrators, &c. Judgment on account . . Failure to make account by defendant . . Accounts : Judgment, by default, on detailed AcTj; : .S'oiw aeinqprivJ, when filed as exhibit Action : Must be brought before proper Court And by a party interested . . And Huijurin . . Brought on behalf of persons alieni juris By corporations Joinder of several causes of Remedy for omission in Writ or Declaration must state cause of Defendant must be heard or summoned . . Cannot be brought in another's name Form of Summons in personal (see Summons). in real or mixed (see Summons). Attorney may represent party to . . Of improbation ART. G15 852 2'2B 120 1(11 IHH C52 r>m i28.y 340 344 84.-, 34l> 531 521 522 523 624 525 52(1 527 628 529 630 531 632 533 91 100 12 13 x4 19 14 15 ( 18 "( 149 50 1(5 19 j 20 ( 144 23 175 ABT. PAOK, n defendant was! m*a plaintiff who ;ainat } absent G15 1 8rv2 1 'i'2H 1 120 UM im 552 r.('.*» 128-y 360 502 173 98 156 1()2 322 336 106 mt 310 i 212 311 1 225 315 228 31() 226 531 I 316 fix delays to render to and fyled withj • • " * eceipts, if any ill contesting parties iid to reply iswers, Ac. 8, &c. int .. lit Irt • • I* * * ise of Loned Ime 521 312 522 523 521 i 525 528 52».) 530 531 532 533 IMONS). 01 100 12 13 A 19 U\ 15 ( 18 \ 14'.t 50 It) 1',) ( 20 23 175 313 313 313 313 3U 311 311 314 311 315 315 315 76 81 18 18 18 22 18 19 •2'2 117 •47 20 22 23 132 27 159 INDEX. 829 Action — continued. In forma pauperis Creditor may not divide debt Court cannot ^o beyond conclusions of Possessory and petitory AuJoruNMENT : Of c arts Of examination of witnesses Of seizure of moveables ADjrincATioN : By sheriff's sale (sec Execution). . . Administration of Justice : Division of Lower Canada . . Officers in the new districts for Admission : Presumed when fact is not denied . . Notes to be taken at enqu^te of In lion appealable cases, defendant is called on to make Adverse Title : Defendant may plead Advertisement : Of sale of moveables in certain cities Of sale of immoveables by sheriff . . How printed in Gazette — Form Deposit with sheriff for Of sale by licitation . . Advibement : Change of status of parties does not stay case when under Discharge in Q. B. of Affidavit : Commissioners for receiving Who may receive in circuit court . . Must accompany denial of signature, etc. Of jurors as to verdict cannot be received To accompany petition in revision of judgment by default And oppositions to judgment by defendant Or by third parties 35 V. c. 6 And oppositions to seizure of moveables . . Except in certain cases And of immoveables . . To accompany bids at sheriff's sales And registrar's certificate sometimes For Capias Where debtor is insolvent and refuses to assign . . Where debtor deteriorates an hj'pothecated im- moveable Where claim is for damages unliquidated . . By whom made and received Form for warrant of arrest . . Transmission to S. C. by Commissioner For attachment before judijment. Where claim is for damages unliquidated . . Clerk of the C. C. may receive ART. 31 16 17 916 1 279 574 684 1.355 1357 144 2GG 1098 PAOE. 32 19 20 542 13 202 339 899 i 720 i 722 i ! 132 198 G09 1110 ' 612 573 648 649 647 929 434 1171 30 1060 145 428-9 486 486 583 584 651 666-7 701 798 799 800 801 807 815 834 835 839 .339 379 380 379 533 253 651 31 596 134 251 292 292 810 343 345 384 394 411 455 470 471 471 474 478 489 496 497 \m^ ■^\\\ •, •/;• |. li ' ■., - W(\ ^ vm 880 INDEX. Affidavit — cotitimied. For (tttuchineiit before Jitdriment — continued. To obtain warrant of attachment For judgment by default To accompany petition for habeas corpu$ To obtain a writ of mandamus Or injunction Afkiioiation : Form 45 85 V. c. (5 41 V. c. 14 In lieu of oath AlFfixino Skai,3 (see Seals) AiMAS WlUT OF I'jXKCUTlON (»(■(• EXECUTION) . . Alienation of Minou's Puopkuty : Order of court necessary . . And advice of family council, and report of experts Nominiition of experts Duties of experts Eeport submitted to family council j'ailuio (if experts to a^ree .. Judf^e fixes upnet price Iteasons of jud,(?o to allow sale form part of record Publication of sale Private sale may be effected in certain cases Where immoveable is held undividedly by tutor and minor Where value of immoveables is under $400. 35 V. c. 7. Allowance : To Jurors To party imprisoned Debtor cannot be retaken if discharged upon lefault to pay Amendment : Of writ and declaration After exception fyled . . After proof In jury trials . . Of return Delay to plead in cape of allowance of . . Of register of judgment Amiahles Compohitedks (see Arbituation). Animals : Justice of the Peace may hear actions for damages by Annul : Oppositions to. . Annulling : Letters patent . . Answers : To preliminary pleas. . To pleas to the merits To articles of improbation . . To articulation of facts To faits et articles Default to make . . Viva voce . . Bef usal to make . . Form of ART. 91 1041 f 30 '( 555 1279 579 1207 1208 lai)'.) 1270 1272 1271 1274 1275 1271) 1277 1278 410 790 117 .420 420 HO 112 474 1341 1216 057 1034 108 138 171 211 224 225 220 220 228-9 2i;-i •JKl 70 IH'j 274 715 G7'J .■i87 ;180 8G 128 l.>8 m 174 175 177 177 178 INDKX. 831 §'^ AUT. nned. t •• Form 45 rput fll 1041 85 V. 0.0 41 V. c. 141 3N) ?eport of oxperta tA part of record tain ctiaeB .. ••■ videdly by tutor and' der »466. 35 V. c. 7. f 30 1 (555 i 1270 1 571) 1207 1 12()H , 12()'.) . 1270 I 1272 1271 1274 1275 1270 1277 1278 TAOP. 49ft 7(5 r.H7 678 31 ()',i;» iUfl .t'.92 '• tV,12 ' ti'.l4 ': (V,)") 1 ii'.ir) I ()!l() ()',)(; Will (;!)7 (i',t7 'iifi ■1.11 410 7'JO larged upon :.efault to 705 1 4r.4 53 117 1 320 I 420 HO I 142 474 on). .. •• "i tions for damages by 1 1216 ce of 057 I 1034 j 108 I 138 171 211 224 225 220 220 228-0 51 (15 213 2111 70 1S2 274 715 im 387 ^■80 86 128 1,>8 Itt 174 175 177 177 178 AXMWKRH — (•(IH/IH«('(/. To/uitu ft article* — cnntiitiieil. Party may refrain from uaing Division of To contestation of account . . To ))roceedin;,'s by {^ariiislinient To rea«0M8 of appeal . . Ari";Ai': Lies from judgments of the Superior Court From judgment of distribution From judgment on capidn— by defendant By plaintiff Cases where it may be had from iinal judgment of the S. C, Brought to Montreal or ()uebec Cannot bo had wliero judgment has been confirmed in Review 37 V. c. I'rom Interlocutory judgments Motion necossary for leave to appeal in latter case Service of motion for leave to appeal J^elay for bringing Writ J'lxtenaion of delay for returning writ Service of writ, and return Criving of security . . . . Before whom received Completion of record, preparation of transcript, and transmission of jmiiors to the Court of Appeals Proceedings up;m failure to return writ . . Judgment of non prr.s Appeai'ances of }> ivtiea Tilotion by respondent to cpuish To reduce security Cross appeals may bo joined Reasons of appeal must be lilcd within eight days from return Delay where demurrers are produced Not ro(]uiredin api)eil from Intorlocutories. 46 V. c. 26 Answers thereto Effect of failure to answer Delays may be i)rolnnged Dinmissal of api)eal upon default to lile Election of domicile in Filing of Fih-tiim Xotrefpiirod in appeale from Interlocutories. 4()V.*c. 20 Tiisuription for hearing rrom Circuit Cuurt : Lies in certain cases Security to be 'jiven One surety sufiices When security for costs only is necessary Brought by petition — delay for serving it Delay for return of writ, tiling of petition, and trans mission of record Appearance Failure to send up record Iljaring of case after filing ot factum Forfeiture of right of appeal I AllT. I'AOR. 280 178 231 179 520-30 314 Olf) .31 !0 1135 0:;« 513 310 701 439 822 4S2 823 •iHa 1115 014 1117 020 206 1110 016 1110 021 1120 H22 1118 020 1121 023 1122 025 1123 025 1124 (■-•.! 5 1125 031 1126 031 1127 033 ' 1120 0.'!2 1128 <),'!2 1130 0i.'4 ' 1131 035 1132 035 1133 035 1134 030 021 1135 030 1.1.38 037 1130 030 1137 ().37 1130 037 ' 1140 037 021 1141 637 1142 638 1143-4 040 1145 042 1146 04a 1148 043 1149 644 1150 645 1151 645 1152 645 1153 645 I i ' ■ Mi ;l I, f f; 'Mm'! n i 832 INDEX. Ai'VRVL — coiitiniu'd. By wlioin it iniiy bo takon If one of Huvoriil ixvrtioH to tlie suit dies, procoodings may be contiiiuucl Quorum. Routine businoHS IlecuHiition in Incoinnotency of judjjo whp sat in Court below When noompotoncy upiiearB on record Notice of leave of abHcnce of jiidjjes Uccordinn of fact where judge cannot bit lleplacing of judges by those of the Superior Court Return of judge replaced, Ac, does not affect powcra of ro}»lacing judge Order for the completion of the record may issue Interventions, disavowals and other incidental proceed- ings may be tiled in api)eal Discontinuance in Peremptions in Presence of parties to bo heard Rendering of judgment, absence of judges Discharge of advisement Adjournmont of court to a day in . "ation Where judgmonts may bo rendered Form of judgment Taxation of costs Execution of judgments Powers of court, tariff of fees, rules of practice From judgment, on opposition to marriage From judgments concerning letters p,it6nt In proceedings referring to corpora i /iia and public otKces In proceedings relating to the illegal detention of town- ship lands On petition of right • • . . 40 V. o. 27, s. 11 Not allowed from judgment on certiorari To the Privy Council inei- Phivy Councii-) To the Circuit Court from judgments of commissioners or justices Ai'i'KALADMc Casks, Cmcurr Couut: Certain provisions relating to S. C. apply to Conlentiition in . . Proof Contested cases, are inscribed for proof and hearing at the same time . . Notice of inscription Taking of evidence . . . . . . . . Proof taken down in writing . . . . * . . Summons of witnesses . . Reservation of argument on demurrer till final hearing Proof may be had or witnesses may be examined in another circuit by order of the court . . Judgments and costs . . Absence of judge and tranamissiou of decision AllT, lir.4 inr, 11 r>r> iir>7 iir)H 115!) 11(10 1101 1102 1108-4 iio:> 1100 1107 1108 110!) 1170 1171 1172 117:J 1174 ii7r. 1 1 7C, 1177 !)!I0 10H7 1033 lllll 1231 117H 1057 IOC)!) 1070 1071 1072 1073 1074 1075 107G 1077 1078 1079 1080 INDEX. 838 ies, proccodin«8 may Court below :ord K not Bit '' • J I B of tho Superior, ^^^_^ b' not affect powers of I ^^_^^l cord may iHHue vr^'*" ler incidental proceed- of judKca I . —ation 3d •• lies of practice p marriage erH p, I tent •- 1 'rpora 1-113 and public ^^_^^ ,Hal detention of town- ^^^^ 40"V. 0. 27, B. ii ^^_^^ \ertiorari •• " n'7u iCoiJNcn.) :•. •• P"" nentB of commiBBionerBJ ^^^^ m Ic. apply to Id for proof and bearing 10(V.I ! ('.01 1070 I ('.01 jn demurrer till final aes'maybe examined in of the court . . .1 • • * ■ lisaion of deciBion . . 1078 1079 1080 fi03 fi03 1071 ('.02 ■ 1072 C02 1 1073 m ■ 1071 m ■ 107r. m ■ 1070 003 ■ 1077 1 603 1 ABT. 1081 1082 1088 1084 1085 108)1 1087 1088 108'J 1000 1091 1002 88 10(>o8itions to executions are within the juris- diction of the court Stay of proceodinf^B Against immoveables in default of moveables Writ is addressed to sheriff and returned to 8. C. . Issue of writ (/<• tfrrin immediatelv in certain cases Proceedings on seizure and sale of immoveables . . Otiier fornuilities similar to those in S. C. . . Transmission of record to 8. C where an execution against immoveables has been returned to that court . . • ■ . . . . . . , . llcmcdy tujaimt jmlgmenU, by review And appeal AlTKAUANCK : How and when filed . . In the Circuit Court . . . . In non- appealable cases in term In vacation In proceedings against corporations illegally formed In actions under Lessors' and Lessees' Act In appeal from the 8. C. In appeal from the C. C. In certiorari Appellant (tee Ai'PKAl). Al'PKNDIX : Forms . . . . • • • • • ■ < • Recent decisions and statute AniiiTiiATioN : Huliiiiission V\'lio may enter into . . Appointment of arbitrators by the court Deeds of submisbion out of court . . Must be in writing . . Arbitrators must hear the parties and the proof, and decide, — swearing of witnesses Revocation of appointment of arbitrators In what cases the submission becomes inoperative Recusation of arbitrators . . Appointment of a third arbitrator Atjroement of two necessary Awiird la in notarial form Execution of extra-judicial awards Proceedings to obtain judgment on an award . , ARmTiiAToiis : Reference by court to , . . . . . . , . . 341 In Commissioners' Court . . . . . . . . . . 1208 Need not be sworn . . . . . . . . . . . . 342 Proceedings and powers of 342-3 Cannot award costs . . • . . . . . . . 343 Remuneration of . . . . . . . . . . . . 344 53 F. C. C. P. 1341 1342 1843 1344 1345 1346 1347 1348 1349 1350 1351 1352 1353 1354 PAOE. C04 G05 OOfi (105 (105 605 605 60(( 606 607 607 607 71 601 607 609 560 521 632 645 680 715 715 715 715 715 716 717 717 718 718 718 718 719 719 223 670 223 223 223 225 < • ' ,r ■iV ■■Ml 'it t) m ifMi i: m I lit' ■H 884 INDEX. AimiTPATonH — continiinl. Motion to honiolo({ate report and for ju(l({mont ileferonce in mattors of accounting to {See AnniTitATioN.) AllRAT : Challenge of {nee Junv-TniAi,). Ahui:8T : Of debtor (ni'c Capiah). .. Of judgment {»ee Juiiy-Trial). Arret : SaMe-arrft nimple (tee Attaciimint nErone Judoment) Kn maim tiercf* ,, ,, AitTicui,ATioN or Facth : When they hIiouUI be flied . . . . . . Form of Service of Written proof must accompany . . Answers to When facts set forth therein are held to be admitted Adjudication of costs when exhibits arc not tiled with Coats, when facts are proved which are denied by Costs, when partv fails to file May be disiKJUHedi with Trial proceeded with afttr delay fur filing Delay for inscribing if no articulations are produced Assault and Batteiiy : Incompetency of Commissioners' Court to try suits for ASSKSSMENTH ! Appeals to C. C. from judgments for Municipal No appeal to the Q. B., from the C. C. in matters con cerning school, church and parsonage Jurisdiction of Commissioners' Court Oppositions not required in sheritT's sale for AtTACUMENTH IIKFOIIK JlTDOMENT : May be issued during long vacation May issue unstamped May be served by bailiff out of district Execution against absentees cannot issue during year on Commissioners' Court may issue Simple : May issue in certain cases Affidavit for Judge's order requisite if claim be for damages un liquidated Writ •• •• •• •• •• •• Endorsement of , . Issue, form, and attestation of May be issued for 8. C. by Clerk of C. C, who may receive affidavit Addressed to sheriff or bailiff if issued by clerk of C. C Clerk of C. C. acts as officer of S. C. Seizure effected as on executions May be made in another district ART, 531 877 inr, •i'J-j '207 •2(W 'm (210 I '21 a '211 212 2i;i 21 » 2 If) 217 220 3')0 IIH'I 1057 I'AOI, ■2'27 815 237 m •247 •18!) •m Vu lt)8 VlH lI'iH 10!) 108 lfl!( M',t Itl'j 170 170 177 •229 594 1142 (538 U'.iO Ciii; 711» , I'jl 1 I 4r)7«, 401 5,12 ll'll U •271 ai- 322 *'it'iil 4H1I 4811 H;^(; 1117 mi 4:t7 838 4117 8;w ! 497 840 840 841 841 497 497 498 498 INDKX. 886 AllT. PAOI, it »17 »77 23- domknt) admitted t ttled with lied by 3 produced try BoitB for icipal matters con-i 785 4'2'2 I •207 •2()H •2mt i (210 \ \m 1 '211 I •21'2 1 •2i;i '211 I '215 I '217 1 '2'20 ar)0 ■ I 118t» 1 1057 ! m '247 m m m iiiK m nw KW Kill K'l'.t lll'J I'D 1(0 177 m [or 1112 llllO 71'.t 394 Mil m luring year on damages un-l " * ' * 1 i C.'C., wH sued by clerk 1 4(>7(i 41)1 5.V2 llUl AM h:(4 «S5 ' HHC) H:n 838 IH •271 ■2117 M'l Hi')!', 4«i W \% 4',i7 4'.17 4117 839 4'J7 840 840 841 841 497 4117 4118 AllACIIMRNTH IlKKHtK JuiHlMKNT— (-Odf/HUCf/. Simplf — rontiiiued. WaiTHiit riiy bo iHHucd by ('ominiHHioner .. Form of Form of aiulttvit Kffects Hi i/cd call onlv bo detained 12 dayH TruuHniisHion to H. C. or C. C. of certillcato of prooeedinKH. etc. Bailiff nuiBt make return and deliver effects to Hlioriff Oflicer may demand prepayment of costs of safe- koepinj? And may renew demand, if necessary . . . , | Koturn of writ with inventory ; Service of writ and declaration . . . . . . | Appointment of ({uardian [ Service of defendant who is absent or concealaj liiniHulf Defendant may obtain iiosBesHion of effects withini 48 lionrs on giving security i Contestation of . . . . . . . . , . ^ PrococdinKS after judgment to bring effects to, sale ;,'(/ Guniixhmfiit : May issue in certain cases How effected .. .. .. .. .. ..i Writ addrcHBe'24 PAOE. 498 408 500 600 500 500 500 500 500 502 502 502 503 340 504 504 504 505 505 505 359 505 31)0 505 3(50 505 300 505 3(51 505 3(i0 505 301 505 302 805 303 505 3(54 505 3C4 505 365 505 3G5 I .1 » • I, P i- 836 INDEX. Attachments before Judgment — continued. By Oarnishment — continued. Judgment on declaration : effect of Orders deposit of titles or sale of effects Distribution of proceeds . . I pi Discharge of garnishee who owes nothing, and costs Where the decli ration is not contested Contestation — Service of.. Subject to ordinary rules . . Foreclosure of plaintiff upon his failure to contest, and relief therefrom By defendant In revendication — Who may issue . . Writ, endorsation of . . Procedure on Defendant may obtain possession of effects And so may plaintiff . . Inventory of effects may be required beford delivery Where neither party applies for them, they remain with the guardian or a sequestrator . . May be sold if perishable By wife demanding separation On petition of right For rent — Owner or lessor may seize and follow by recaption effects liable for rent . . Seizure effected as on executions — officers may seize in another district . . Effects caunot be left with defendant without security May be joined with action to rescind lease . . Attachments after Judgment : May be served out of district by bailiff . . May issue af^ainst defendant's property (See Execution). ATTOnNEY ; May represent parties to a suit Who may act in Commissioners' Court as Tariff of fees may be made by judges Disavowal of («<-«' Disavowal). Must give notice if desirous of ceasing to represent a party Not bound to reveal what has been told him profes sionally Change of Proceedings when he ceases to practise If party fails to replace Must notify adversary of his client's death May obtain distraction of costs May represent party on requAe civile without new power Parties contesting an account must name the same Election of domicile by, in Superior Court in Circuit Court in Queen's Bench t'AOB. 871 872 988 401 553 23 1203-5: 2*1 192 275 202.(5 202-3 204 430 '482 508 528 35 1059 1139 \M 207 'A2'i '21 ftifl 30 201 IDd 201 Ifil) 106 1G6 2o4 283 30« 314 W 5115 637 INDEX. 837 ABT. I'iOK, f .. lie of effects owes nothing, andj ot contested (859 505 t625 'M (859 1629 505 371 (859 505 \fi30 ' 372 (859 505 \631 372 861 r.05 862 505 863 1 50G ipon his failure to refrom ion of effects 864 i 865 { B()() 867 ' 868 869 869 870 871 auired beford delivery or them, they remain jquestrator •• "| 872 988 n seize and follow by| r rent , na-oflicers may seizej idant without security! tescind lease bailiff • • )perty 506 507 507 510 511 511 511 511 512 512 551) 583 873 (874 \841 875 888 461 553 512 5U 4M 5U 521 %1 323 3ourt as 23 11203-5 29 192 27 m 30 1113 ceasing 'to represent aj told him profes- 201 Ififi been [jractise at's death iil'e without new power 1st name the same lior Court lit Court I's Bench 275 201 202-6 ll'iii 202-3 ii;i) 204 Id!) 436 2.)4 '482 288 508 308 528 3U 35 1 40 1059 1 5■■: 111: 838 INDEX. il Benkfit of Inventoby — contimied. Notice of petition by advertisement Security must be given that an account will be rendered and that amounts received will be paid Sale of moveable property by beneficiary heir . . Sale of immoveables . . Appointment of curator if he has any claim against the succession . . Bidder : At Sheriff's sale (nee Execution) Bidding and Sale {gee Execution) Bill of Exceptions : Copy of judge's notes of his charge to the jury take the place of parties' . . Filing of Bill of Exchange : Denial of signature, &c., must be accompanied by an aftidavit Presentation in certain cases presumed . . Judgment by default or ex parte, on Party to, may be described by the initials of his name as they appear on Liable to seizure Bond: In appeal Insufficiency of Boundary : When actions lie for . . Appointment of surveyor . . Proceedings of More than one may be named Fixing of bounds and verifying of division-lines . . Cancelling of Letters- Patent.. .. .. .. .. Capias ad Bespondendum : May be served at night May issue unstamped May be proceeded with during long vacation Abandonment of property by debtor {tee Abandonment) Writ may be obtained when debtor absconds, or secretes his property Affidavit in such case And when debtor refuses to assign though he has ceased hia payments And when debtor deteriorates property hypothecated Judge's order necessary where unliquidated damages are claimed May be joined with summons, or be issued thereafter , Endorsation of writ Service of declaration Cannot issue against priests, and certain other parties Nor for a foreign debt, nor for a sum under ^10 By whom affidavit may be made and received . . Superior Court alone has jurisdiction How addressed, when issued by prothonotary . . May be issued by clerk cf the C. C — how addressed , ART. i PAGE, 1322 I 709 1323 1324 1325 1326 074 005 398 405 40 565 700 70!) 70'J 709 397 394 241 243 145 i 257 145 ; 257 81i 7.; 45 335 1124-5 625 1130 634 941 i 533 942 I 541 943 \ 541 944 I 541 945 I 541 1034 , 560 65 ' 53 467ai 271 1 i 18 763 ' 440 797 : loo 798 j 455 799 ' 470 800 i 471 I 801 I 471 802 I 472 803 I 4i'> 804 I 473 805 m 806 474 807 474 808 i"> 809 475 810 47a INDEX. 889 jount will be rendered [1 be paid jficiary heir . . any claim against the ABT, PAGE. 1322 709 1323 1324 1325 m 70!) 70!) 132G 1 709 ge to the jury take the be accompanied by an • • • • ' ' laumed . . , on le initials of his name C74 005 398 405 145 I 145 89 49 505 397 391 241 243 257 257 75 45 335 of division-lines ong vacation ebtor ($ee Abandonment) ,tor absconds, or secretes gn though he has ceased • • ' * * * »roperty hypothecated . e unliquidated damagesj )r be issued thereafter . 4e7a' 271 1 i 13 703 ': m 797 i 455 798 455 id certain other parties 1 sum under $40 Te and received . . fiction prothonotary . . • • C —how addressed . 799 ' 800 I 801 1 802 1 803 I 804 I 805 800 807 808 809 810 4(0 4"1 471 i'd Hi 4(3 473 4ii 474 4T5 475 475 48 V. c. 20 1124-5 625 ■ 1130 634 1 941 ' 533 1 942 1 541 ■ 943 541 ■ . 944 1 541 ■ . 945 541 ■ . 1034 580 I 55 53 I Capias ad Respondemdum — continued. The clerk of the C. C. acts as an officer of the 8. C wording of writ in such case . . Warrant of arrest, by Commissioner Contents of Affidavit for Form of Detention of debtor under Transmission of proceedings to the S. C. by the Commissioner . . , . Execution of, when addressed to a bailiff To the sheriff Detention of a debtor . . Conteitation of, by petition Immediate return of writ may be ordered Contestation of petition Appeal by defendant By plaintiff and suspension of discharge Discharge upon bail, upon giving security that he will not leave Province Or that he will surrender himself or pay judgment Notice of giving bail required . . Sureties must justify but not on real estate. . Provisional discharge before return of writ . . Form of bail bond Besponsibility of sheriff Assignment of bond . . . . Surrender by sureties . . Written requisition to sheriff necessary Forcible assistance may be had if sureties appre- hend resistance Action of damages if it issues without probable cause Causes ok Action : Joinder of several Writ or declaration must contain Certificate : Of opposition to judgment being filed Of acte of foreclosure . . Of registrar— form and contents . . Contestation of, (tee Execution) Certiorari : Circuit Court has jurisdiction in certain cases . . No appeal or review from judgment on . . When judgments may be revised by riauses giving rise to . . Is granted on motion supported by affidavit Notice of presentation of motion . . Service of notice suspends proceedings . . Motion is presented to the court or judge— adverse party may appear and object orally thereto Form and contents of writ . . Faidorsation of . . Service and effect of service . . Duty of those to whom writ is addressed Failure to comply with writ entails imprisonmeuti ART. 811 812 813 i! 814 815 816 817 818 819 820 821 822 823 824 825 82G 827 828 829 830 831 832 833 796 15 50 488 137 700 738-9 1056 1115 1234 1220 1221 1222 1223 1224 1225 1226 1227 1228 1230 1231 PAGE. 475 476 476 476 476 478 478 478 478 478 479 481 481 482 482 483 485 486 . 486 486 487 488 488 488 489 489 454 19 47 294 126 407 428 594 614 681 673 676 677 677 678 678 678 679 679 680 680 f ;< l.j iff I :| i f 840 INDEX. Certiobari — continued. Appearance of adverse party and inscription for hearin" Drafting and service of judgment . . Does not lie in cases of judgments of the vice-admiralty court Challbnoe of Abrat {see Jcrt) . . Of Jurors (see Jury) Ghanoe of Attobnsy (see Attorney) Cbaboes : Opposition to . . . . . . . . . . . . Opposition to secure Cheque : Judgment by default on Denial of signature to Chicootimi : Exceptional provisions for Appeals from Chief Place : Of various districts Churches : Jurisdiction of C. C. in suits for the building and re- pairing of Jurisdiction of Commissioners' Court for assesamonta Tor Circuit Court : Ultimate jurisdiction Original jurisdiction Evocation from Commissioners' Court . . Concurrent jurisdiction with S. C. over decisions of Commissioner's Court and of justices by means of certiorari .. Appellate jurisdiction Proceedings to obtain evocation : cases v/hen allowed Rules of S. C. apply to Powers of S. C. and its officers conferred on Clerk may administer oath Commisaioners of the 8. C. may receive affidavits to be used in C. C. Local jurisdiction, and place of holding of Costs cannot be greater than if defendant had been summoned before circuit of his own county Designation of Suspension of holding. . . . . . . 35 V. c. Jurisdii-tion of circuit for a county Two or more judges may sit simultaneously in separat'^ apartments if necessary Ordinary procedure — Summons Delay upon When served in another district In default and ex parte suits . . Contestation Proof and hearing Judgments Execution -. Remedies against judgments ART. 1232 1233 1235 377 382 202 6(i0 059 89 145 I 27 1117 1355 1112 1170 1053 1054 1055 105('. 1057 1058 105!) 1059 1059 1060 1001 1001 1002 1003 1004 1005 lOtiO 1007 1009 1070 1071 1079 1081 1091 };. INDEX. 841 3cription for hearing If thevico-admiralty ART. PAGE. ■ 1232 681 ■ 1233 681 I 1235 682 I 377 237 ■ 382 238 ■ 202 166 1 the building and re- ui'tfor assessmonta Tor. 1355 1112 1170 lourt . . • •. , I C. over decision* oi f justices by means of . • • • ' ' cases v;hen allowed I . . • • * * " ' 1 Inferred ou . • • • 1 receive "affidavits to be! • • "• •' '* biding of .. ••! If defendant had been ] his own county • • I *.'. 35 V. c. G ty • • • • * ' I ^Itaneously in separat'^ rict 590 591 593 lOC.l I 1062 i 1063 I Circuit Court — continued. Non -appealable cases {see Non-Appealable CAiEs). Suits between lessors and lessees . . Suits for illegal detention of township lands Appeals from . . . . . . . . . . . . Civil Status : Registers of Claims : Filing of, to moneys levied Clerk of Circuit Court : May order doors, etc., to be forced in cases of seizure of immoveables May issue capias Acts ill such case as an officer of the S C. May issue simple attachment for S. C Powers of Liability in case of failure to transmit record to the Court of Appeals Code : Authentic copies of . . Proclamation of Act respecting codifying of laws of procedure . . Difference in versions of Coercive Imprisonment (itee Imprisonment) Collocation and Distribution {see Execution) COMMENCKMENT OF PROOF IN WrITINO". Answers of party may serve as Commissioners : To receive affidavits, appointment of Powers of , as to C. C . . Taking of evidence by consent, before . .33 V. c. 18 May receive affidavit for capias Warrant of arrest may be granted by Form of . . Transi. on the merits (see Pleas) Of account rendered . . . . . . Delays may be extended for Default of filing, end its results Of oppositions to seizures of moveables, subject to ordi nary rules . . . . . . Of garnishee's declaration ART. 478 151 1016 PAOE. 277 149 568 20 23 17 20 94 79 949 544 950 544 951-2 546 953 546 954 546 955 546 957 548 958 548 959 548 960 549 961 549 962 549 963 549 964 550 965 550 966 550 967 551 968 551 970 551 969 551 971 551 82 71 1129 632 7-8 17 1044 588 1S6 116 527 314 527 314 530 314 587 347 626-7 367 •A'h im ■I'j fh iiii;' 844 INDEX. ART. PAOE. ConTy'iTATios— continued. Of report of dittribution 741 42!1 Delays 742 430 ReuBons for and effects of 743 431 Form 743 431 Inscriptions for hearing 744 432 Costs 746 432 If maintained ' 74fi 433 Right of filing 747 483 Procedure on 748 433 Of petition to qjiash Capiat 821 481 Of attachment before judgment 854 503 CONTINDANCK OF SuiT {fteC RePHISK D'InBTANCE) 434 25:i On the contestation of an execution 540-7 320 In appeal lir.fi 04!l CONTBAINTK PAR CoBPS (sCe IMPRISONMENT) Copy : Of all papers filed must be served on opposite party . . 781 448 462 2()8 Of writ and declaration corrected, may be served 118 97 Of authentic act may be deposited in certain cases to take the place of a lost orii^jinal 1252 088 Coroner : If sheriff be interested, writs are served by 466 271 Must keep a register of deeds 1243' (587 Corporate Okfice : Usurpation of (see Quo Warranto) 1016 563 Corporations : Actions by 14 18 Plead in corporate name 19 22 How indicated in writ . . 4!) 4o How served with summons 61-3 .")() Mode of answering faiti et articles. . 224 174 And decisory oath 44(5 257 Peremption takes place against 4o() 21)0 Declaration as garnishee by (il7 301 Seizure of shares in {see Execution). r»6(! 33(; When a mandamus may issue against 1022 ij()j Foreign, how served 64 5H May sue here 14 18 Illepally formed, or violating or exceeding their powers: . . Diity of the Attorney -General to prosecute. . 997 orM A special information to precede summons . . 998 iiw Writ of summons, — service of 999 ytifl Delay upon summons 1000 56U Appearance by defendant 1001 5()0 Special pleas, delay to file . . 1002 o(iO Proof .. 1003 560 Rebuttal, and hearing on the merits 1004 561 Extension of delays lOOfJ 561 Preliminary pleas, and demurrers may be filed 100(5 561 Costs on judgment 1007 561 Judgment — naming of curator 1008 561 Duties of curator 1009 562 Notice of his appointment 1010 562 Distribution of proceeds of sale 1011 562 INDEX. 845 nce) . AHT. 1 741 742 743 743 744 746 74f) 747 748 821 8r)4 134 540-7 110ft 781 n opposite party nay be Berved in certain oases to rved by nst \ding their powem : to prosecute. . le summons . . lerits . . • • * lay bo filed 402 118 PAOE. 420 430 431 431 432 432 433 433 433 481 503 2o;; 320 fill! 44H 2ti8 97 1252 I 088 400 271 1243 i t)87 1010 ! 563 14 10 4<) 01-3 224 440 450 017 ! 500 1 1022 1 04 I 14 I I 997 I 998 999 1000 1001 1002 1003 1004 1005 1000 1007 1008 1009 1010 1011 18 22 45 51) 174 257 2()B 3()1 331', 5(J3 18 Sol* 5'v.i 5()0 560 560 560 560 561 561 561 561 561 562 562 562 CouPoiiATioNS — continved. Sale of immoveable property Effects of sale by curator . . Curator must account Costs : On declinatory exception discretionary Beourity for, may be demanded Application for . . Default to furnish .... When party is forced to plead to merits after filing preliminary exception . . When exhibits are not filed with articulations . Where facts denied by articulations are proved Where no articulations are filed . . Special application in such case to obtain Court adjudges Jury oannot pronounce on . , Otj'a tit et articles Where party answers after being in default Arbitrators cannot award . . Must be paid on filing discontinuance On peremption Of service of papers out of district Losing party pays Taxation of . . Revision of, does net delay execution Of witnesses summoned from beyond jurisdiction Where defendant or witness is summoned out of Prov ince Distraction of On requHe civile On tender and deposit On uncontested opposition to a seizure of moveables Of sale of moveables, taxation of Banking of On contesting garnishee's declaration Sheriff may retain, out of moneys levied On opposition for payment Order of collocation . . On contestation of report of distribution On sub-collocation In actions to obtain partition In appeal In Commissioners' Court In certiorari Security on appeal from C. C. to be given for . . Council : Appeal to Privy Family, when necessary How convened and composed Diligence in summoning relatives must be shown Beiations and friends must be sworn Signature of minutes of meeting Jurisdiction of Courts and Judges in matters re quiring advice of . . ART. I PAOB. 1012-8 : 502 1014 I 503 1015 I 503 i';:.-: 115 128 12!' 129 132 213 214 219 419 232 225 343 450 400 401 478 479 479 481 482 509 544 580 000 0(j() 031 705 721 728 745 755 918 1175 1211 12:>3 1143 1178 1250 1257 1258 1259 1200 1201 88 106 112 112 114 109 169 215 I 170 218 171 171 240 180 175 223 258 207 207 277 280 286 480 I 287 I 288 ' 288 i 308 I 318 I 340 i 352 355 372 413 .422 I 423 ! 432 437 531 652 071 081 640 055 689 089 690 590 'o90 690 -I m if):. '' ■ I'll frl' S' 816 INDEX. CavKCih — continued. Fumili/ — continued. Application must remain of record Powers of prothoiiotivry Review of deciaions CoriiTs : RegulatiouH conoornin);; Ihoir Hittinf{B And the rniiintenftnce < f order thereat May pronounce orders, etc May rofi 1332 1133 1334 ISii.j 13:- • 132() 22 (i!ll 3n; ■m 444 4»4 4U 450 m m SI')'.' 1012 r.t;2 ■)(i2 5(53 563 tW!) 713 703 CM i'm 711 711 711 711 712 709 INDEX. 847 A HT. I SCK. ord lereat h on 1H»H DW.) IHIO 1 4-8 ft I 17 ' B4-4-2 821 here before a judgej 2 tl kncb). 7l'! 71.' 71;^ 13 16-17 17 IH 20 :!1-12 21.-. ' 18.'. moveables .. , due the • • • • duty .. B and duties « • • • • • ai7 21.' 3or. t)38 2'.' ('.Ill 31li m 444 444 414 I (()07 It fill 1142 1ft 12«() r)37 7«8 770 771 772 of paying balance of j ^^^ 1 1008 I 1204 j lOOft I 1010 I ,bt8 are due . . • • l^l'^ ! ,tB are due .. "l^l^^A 1015 I intertlicted persons :j ^^^^^ 12r)r) 133'.> 12yft . • • • m 1589 71H 703 [Bon sui juris without To may have been aJicni Ihe case in the Court lOf • • • • L^ heir has a claim 132C) For proceeding without probable cause against defen- dant . . . . . . . . Capian for unliquidated Attachment before judgment for unliquidated . . Arising from the illegal detention of township lands . . Caused by animals may bo recovered before jus tices Witness neglecting to appear, liable for , Trial by jury in actions for . . . . , Judgments must contain a liquidation of Costs awarded on judgments for Deaf Mutes : Evidence may bo given by Dkath : Of party to a suit, {see Reprise d' Instance) Judgment cannot be stayed by Of plaintiff during execution Of defendant Of attorney during suit Of parties in appeal . . Registration of . . Peiit : Creditor cannot divide Decisoiiv Oath : Court may order it to be taken elsewhere before a judge Party v- hose case is not proved may offer . . Special power of attorney re<]uired . . Offer must be in writing Service of rule.. Default or refusal to answer Offered to corporations Reference back to party offering . . DECI.A1UTI0N : Must set forth the cause of action . . And the object of the demand May be amended Corrected copy must be supplied . . ()/■ jiidye recused (see Recchation) . . Of garnishee to be made at prothonotary's office When it must be maae . . Contents of Relief from default to make . . Effect of judgment Contestation of . . Procedure on By head of department where salary of public servant has been seized . . . . 38 Y. c. 12 Of abandonment of property ., Service of, in capias .. In attachments before judgments Demurrer to Declinatory Exceptions (see Exceptions) AiiT. HOI H.S5 llOH 121(5 24i) 848 471 478 2G1 484 4r.8 547 54(5 200 1155 1230 15 PAOS. 454 471 4ft.5 008 072 191 227 273 277 1D5 253 272 320 820 105 047 083 19 241 185 443 256 444 257 444 257 445 257 44(5 257 446 257 447 257 60 47 62 50 f 53 51 |117 95 118 97 179 161 017 361 018 362 619 302 624 305 025 306 020 307 627 367 369 704 440 804 473 851 502 147 138 113 87 1:1' Hi'' 848 INDEX. DirAur.T : AtjaiiiHt defendant In the Circuit Court appealablo Non-uppuulublo . . Iloliof from Judgment on notes, iVo., by . . On authontio deoda On vorbul aKreemonti . . I'locuduro to obta' i Pluiiititf may renounce.. In tlio Circuit Court Execution aj^ainut abficp^eu of. . To answer jnitH et article* . . To proc'iod at onqu<)te To appear at jury trial ActiouH by — evidence taken before CommisBioner No notice required in . . Revision of jnd^inonta by . . Pnttin^ in [oec Tkndeu) Of narniHlioo to declare — relief therefrom In actions between lessors and lessees Dekk.nuant: Description of, in writ Hummons of (ifve Summons) . . Delay : lluns on du'»-mm On summons . . May be extended To account To plead after amendment . . After demand of security . . . . 85 V., c How reckoned in matters of pleading; For filing declaration of abandonment of property In non-contentious proceedings Demand of Plka : Whore preliminary pleas are filed VAieci of In appealable cases C. C Unnecessary in non-appealable suits Ok heahonh of appeal Ok AN8WEH8 to Demcuueu : May be pleaded in certain cases . . Inscription in C. C. on merits and To writ of appeal Denial : Of documents must be Bup][K)rted by affidavit Deposit : Must accompany preliminary pleas And motion for jury trial . . And oppositions to judgments And bids at sheriffs' sales . . In review Of judgments on capias AltT. H« 108 7ti(l 1337 131 137 1070 lOiCI 1133 1135 147 : IHH 1077 (;o;t 1130 G34 145 I 134 112 • 3()5 480 677-81 497 823 Ii INDEX. 84'.» 1 AHT. 1 I'Aill' • • * * HO 1 71 • • .. lonu (101 • • .. lOOU »•,()<) • • .. B7-8 71 • • 1 • * * W» 7') • • m 7(1 ! • »1 7(1 • • '. '. 1)2 ' 7'.) • • • • * * m 7!l • • • f * * lOlll) (lO'.t • • • • * * 552 )12'2 • • 225 17;^ 1 28H '20 1 • • • • • • \'M) '20N • ■ mn I '210 [JommiBsioner 2BU 1 181 4tl5 '270 • • • ■18!) '2',l() • * * 538 :U(1 • • * afrom . . • • • • t • • • (121 8U1 iKir) .•.'2;i 41) 45 • • • • * * • • • • »4 84 ( 24 27 • • ' • • ■ * \4(13 '2(111 75 d') • • * 141 i;ii • • • 622 nil! • • • 14-2 1 i;t'2 • * * 35'v.,o.fl 1 10(1 ' 4(58 1 '2(11 ent of property 7»)(1 Ml 1337 , 71-2 1 131 ii;i • • • • • . 137 , I'itl . . 1 1070 1101 . * • ■ 10»',) tlO'.i t8 * * 1133 (IH.I > • * * .. . 1135 (i:i(i . 147 1 13H • • • " . 1077 : tio;i • • » • * * • • • . 1130 ' 634 y affidavit . . . 145 134 . 112 87 ) * * • 3(15 '235 • • * * '. . 48(1 '29'2 • • " " . . 677-81 397-8 .. . . 497 '29'.) •• .. 82 3 ' 48'2 PiioMiT — continued. May bo required by arbitrntorH, etc Of copy of autheiitiu docuniont which has lost PKI'OSITAIIY {nee (llTAnrHAN, HEgUEHTlUTOU) Ukuihition ok Witnkhhkh : Hwuarin({ of witnoHH ICxamination on voir dire Of deaf mittos At lenj;tii— oiKininK . . CoiiteiitH Noting; of objectionu . . CtoHiii^ . . . . . . Additions to Uy BtonoKraphy Itofore Conimissionor, and at any timo 1 1 AHT. PAOE, .. 311 22li 1 b««n (•* i2r,3 fi88 . 5(10 882 . 25(1 1»6 ( 25'.) IDfi " ' ( 'i«H 108 .. -idl 105 • ■ . 288 205 . . 281) 208 . 2U0 200 . . 203 207 .. 2U4 207 5 V. c. (1 242 conHoiit 1.1 by < V. c. 18 2(55 1107 13(11 120 Notes of ovidonco by Jud^^o Detiintion : Of township lands i)lo(;ally rU'Kl'UKNCKB 1 11 tho vorsiouH of tho Code DlI.ATOIlY ExCKPTlONrt (nfC ExCKI'TIONH) I)isAV()\vAii : I Miiy bo fdod in certain cases 1<)2 Bofore or after judj^mont . . . . . . . . . .\ 11)3 Uy whom it may bo made . . . . . . . . . . i 1".)4 IWor of attorney re(iuired to file j H)4 How made .. .. .. .. .. .. .. 1!).') I'roceedingH must not bo delayed . . . . . . i l'.)(i Suit suspended ' . . . . . . . . . . . . j H)7 Troceduro Banio as in ordinary suits . . . . . . i 108 Consoquonces of . . . . . . . . . . . . I 100 In appeal .. .. .. .. .. .. ..| 11(1(> DlSCIIAllOK [ Of party imprisoned, petition , 702 G rounds for . . . . . . . . . . . . { 703 Must bo ordered by judi^o . . : . . . . i 704 Effect of 705 Of debtor arrested under MjJiViA- j 810 Of (Wi/jtW in appeal | 1171 From hypothecs {sec Confiumation of Titlk) . . . . i 04(1 Discontinuance of Suit: During any trial .. .. .. .. .. .. 305 May be made at any time before judfjment .. .. 450 How effected . . . . . . . . . . . . 451 Costs thereon must be paid before party boyins now proceedings . . . . . . . . . . . . 453 In appeal 1107 Discussion : Exception of . . . . 130 Of moveables before sale of immoveables . . . . 554 Distraction ok Costs : Hay be obtained 482 54 F. C. C. P. 184 197 612 724 08 103 164 164 164 164 164 165 165 165 640 452 453 453 454 470 651 542 241 258 250 260 650 113 324 288 \l M, Pi ¥ H 850 INDEX. Distribution : Of funds levied by sale of moveables {see Exeoutiok) Of funds levied by seizure by garnishment Of proceeds of sale of immoveables (see Execution) Of moneys in cases of licitation And of confirmation of title Districts : Judicial districts of Province Documents : Improbation of (see Impbobation) . . Inspection of (see Inspection) How restored when originals are lost Domicile : Election of By advocates In oppositions for payment In oppositions to judgments by defendant .. And by third parties In oppositions to the seizure of moveables . . In the Circuit Court Tender at elected Service of summons at Dboit db Suite (see Attachment for Bent) Ejectment (see Lessors and Lessees) Election : Of domicile, none required by creditor in seizure of immoveables (see Domicile) Of officers of a corporation may bo ordered Elector : Competent witness in municipal cases Emancipation : Of minors . . . . . . . . . . . : Enqubte (see Evidence) Erasures : In witnesses' depositions Error and Appeal : Writ of Tribunal before which it may be brought Delay for proceeding Writ .. Return oorvico •• •• •• •• ■• •• Security Failure to make return Cross proceedings Assignment of error Failure to produce Answers thereto Failure to produce' Delays may be extended Factums Evidence : Before arbitrators, acoountants, &o. Commissaire enquHeur .. .. .. ,, By Commission Rogatoire ART. 601 630 724 939 969 1855 169 1245 1252 84 85 722 485 511 583 1069 540 67 873 887 C39 1022 1032 1256 234 295 1114 1117 1118 1121 1122 1123 1124 1127 1132 1133 1137 1136 1138 1136 1140 840-1 300 307 PAllK. 3S3 372 422 538 551 720 15.1 6.S7 688 72 73 422 2!)2 310 343 601 317 55 512 5)8 37r, 565 0811 181 207 614 620 620 623 62o 62,- 625 632 63.i 63.i 637 63fi 637 631) 637 222 208 810 'ir INDEX. 1 {see Execution) ihment see Exkctjtion) }t ABT. 601 630 724 939 969 1355 169 I 1245 1252 PAOK. 353 372 422 538 551 720 154 es7 688 r defendant • • • • 1 moveables Rknt) sreditor in seizure of .. C ordered ases • • • • 639 1022 37fi 565 1032 570 1256 234 0)8!) 181 brought 295 I 207 1114 1117 1118 1121 1122 1123 1124 1127 1132 1133 1137 1135 1138 1136 1140 eo. GU 620 620 623 625 625 625 632 63n 635 637 636 637 63ti 637 . . 840-1 1 222 300 208 307 I 310 84 72 ■ 85 73 ■ 722 422 ■ 485 2!I2 ■ 511 310 ■ 583 313 ■ 1069 601 ■ 540 317 ■ 57 55 ■ 873 512 ■ 887 518 ■ 35 V. 0.6. Evidence — continued. Before viewers, experts Jury By atenography Before prothonotary Before CommissionerB by consent , ] 33 V. 0. is Of consorts 35 V. 6 Deaf mutes . . . , Bailiffs who have served writs . . * *. \\ Party does not avail himself but may bo used against him . . . . in ex parte cases . . Amendments allowed Extraordinary investigation may be ordered Of Witnesses ; must be in writing Otberwiso no appeal on facts About to depart . . May be ordered elsewhere befora a Judge Swearing or affirmation Beiusal to swear Punishment Cannot claim expenses May not withdraw Voir dire Form of oath may be changed Exclusion of other witnesses . . Need not answer certain questions Examination of . . . . . . Leading questions Cross-examination Be-oxamination . . Counter proof Failure of party to proceed . . Rooms assigned for enqu^te . . Judge takes notes if required (repealed) Proof and hearing Special days for Objections to Prothonotary may preside in certain cases Objections noted in such case . . Admissions taken down Inscription In Circuit Court Postponement . . In CommissionerB* Courts In lessors and lessees cases . . In suits concerning corporations . . (See Proof.) ABT. 335 397 2S5 261 262 261 317 320 321 236 1142 240 241 I 255 t 305 257 277 258 278 (250 267 ^2C8 256 254 274-5 263 270 271 272 j282 (298 (283 1299 286 ??« 243 243 (263 "284 284 266 234 1071 216 1209 896 1003 851 PAGE. 221 241 242 205 184 194 196 196 192 212 213 215 183 638 185 185 195 209 195 202 195 202 195 198 198 195 194 200 196 199 199 199 203 208 204 208 205 197 186 186 196 200 204 204 198 181 602 170 671 522 560 lii m-i m m ' i! I .•V*J^- 852 INDEX. Evocation ; From Commissioners' to C. C. From Circuit to Superior Court . . Improbation in Commissioners' Court necessitates From other minor courts Examination ; Of witness On the contestation of a report of collocation ExAJiiNER appointed by Court (nee Commissionehs) . . Exceptions, Prelijiinary : Delay for filing.. Where security for costs is required Delay for answering . . Delay for further pleadings . . 'foreclosure if pleadings be not filed A>eposit must accompany Declinatory Court may suggest Costs on . . To the form Amendment of writ Waived by appearance . Dilatory . . Calling in warrantors . . Security for costs If maintained, defendant pleads anew Plaintiff may demand plea to merits before answer ing Proof, in case plea is filed, on all issues . . Motion in lieu of In Circuit Court Of discussion Peremptory Delay for filing To charge in jury trials To orders of prothonotary . . To informations against corporations To writ of appeal Execution : For tax of witness Of party answering /tt. c( art. .. For jurors' fees . . Voluntary : Judgments ordering restitution Or account , Putting in security . . Tender and payment . . CoMroLsoHY : By means of a writ. . Change of status of defendant Of plaintiff No demand of payment necessary in some cases Necessary force may be used art. 1055 11!I8 105S ll!»y 1220 2G3 7H 300 107 128 10!) 110 111 112 118 111 115 lie. 117 lU) 120 122 (120 ■(128 133 131 132 135 1070 130 130 137 •1(15 ■1(;5 lOOii 1130 281 233 117 531 521 514 53S 513 I 54Gi 51?: 515 j 518 ' IX. INDEX. 853 AKT. FACE. Court necessitates [)f collocation 0MMI88I0NEK8) lired 1055 1 1198 1058 ll'.H) 1220 7U SOO I 593 GG9 595 6f)9 m m 20s filed bo pleads anew merits before answer- all issues )oratiou8 ( art. ion 107 1-28 lOS) 1 110 111 112 113 111 I 115 11(1 1 117 I IM) 1 120 l-2'2 11-20 (V2S las IHl IH'2 i;i5 1070 130 , , Hit) ' I 137 I m ! ICJ 1 lOOil 1 1130 8o 101) 8T 8i 81 8- 8; 8f 8» 85 9; 97 9'- lOS % lot) Ho lib lU lit GOI m lit; \i< ■m I •2?) oii! lit tssary in some cases 281 . 2031 233 1 »! 117 ■ m I I 531 ! 31,i| 521 : 3121 514 31l| 53S ' 3W| I 515 5-10 ' 3^1 5-17 : m i 545! m 1 518' m Execution — continued. Stayed by opposition to judgment By review By order of judge on petition to revoke the judf;ment Of judgment by prothonotary must be delayed . . . . j In real actions . . . . . . . . . . . . . . I Writs of possession . . . . . . . . . . i In personal actions, cannot issue till fifteen days after: judgment, exceptions . . . . . . . . . . j Nor within a year from judgment on attachracut- against an absentee, exceptioiia . . . . .J Moveables and Immoveables may be Kei;;od . . . .1 Even by the same writ . . . . \ Discussion of moveables bciore sale of immoveables,' exce'^ tions. . . . . . . . . . , . . , i Seizure of MovEAnLKs: - j Writ, form, address of . . . . . . . . . . | May be executed out of district by bailiff. . . . . . I Mention of partial iiayments . . . . . . . . j Party may require sheriff to employ a loci.l ba'lif; in! some cases, consequences .. .. .. ..i Things exempt from -' | Inventory or procts verbal . . .1 TTm and contents A^j^i . 1 nt of giiai'dian .. .. .. .. ..! Inv' i •■;! must be in triplicate Copiets to be left or served . . Guardian may remove effects Default or insufhciency of guardian Komoval to town for sale of things scis:ed in country . . Seizure of moneys Of debentures, notes, etc. How effected . . . . . . . . . . . . ; Prepayment of costs of safe-keeping . . . . . . I Forcing of doors, etc., in certain ciisea . . . . . . i Notice of sale to defendant and guarlian. . .. ..! Publication of . . . . . . . . . . . . I In certain cities . . . . . - . . . . ..'■ Hours during which seizure may be made adjournment May be made on Sunday sometimes Procedure where property was attached before judgment Appointment of same guardian to a second seizure,: discharge of guardian . . . . . . . . . . , Lapse of seizure by extension of date of return . . . . ' Accounting of first writ before obtaining a second . . : Oppositions to sale of moveables (get Opposition) . . Sale of moveables {sec Sale) Payment and distribution of moneys if no opposition be filed . . Otherwise funds must be returned to Court Preference of plaintiff over chirographic creditors. . Insolvency of debtor Calling in of creditors ART. PAGE. 488 294 4<)',t 303 507 308 4(15 270 54<) 321 540 321 551 322 r,.i2 313 r,:,?, 323 554 324 554 i 324 555 i 325 4ol i 2il7 55o ' ;525 555 1 ,325 ijG-7-8 j .127-31 (528 i ;;(18 55'.) ;-'.;;2 5(iO 332 5(10 332 501 \ 334 ( 51)1 ; 334 \ 570 1 337 5i)2 ! 334 5(12 334 5(1:5 3:i5 5!',4 335 5(15 335 5ii()-7 1 336 5(18 i 330 oii'.l j 330 571 I 338 572 1 338 57.') i 330 574 i 339 575 340 571 ; 340 577 340 57t ! 340 57J ) 340 58( ) 341 58i ) 348 60 I 353 (10 I 3.53 (IC i 354 CO i 354 60 3 354 854 ]\OEX. ExECDTioN — continued. Seizdae of MovEABiiES — continued. FiKag of olftima — Vonche-.-B Ovder oi aiBi/riboiiovi . . Colloca jioa o° cos^s Preferenca of Crown Of owiior WHO has lent, lea,S9d, pledj-ed, ofco. Or lost Ra^k of privilegoa m cases of pledge. . Lj garnishment (see G.vpnishment) . . Sm^iOfls OF Immoveales Exempi'ons Form and contents of writ Addressed to and execnted by sherifT Resident bailiff to be employed in certain cases Whore p-opertj' lies in several districts . . Debtor is asked to point out bis property Proch-vcrhal — Contents .. .. : None required in certain cases Elected domicile of creditor Mention of ground rents and charges Oppositions for certain rents do not retard sale — are returned by sheriff She/ iJ cannot seize property already seized— subsequent writs Co itinuance of proceedings for second creditor if first discontinue Alienation by debtor of property seized Debtor remains in possession until adjuiication appointment of sequestrator Deterioration of property punishable Prepayment of certain charges to sheriff Advertisement of sale Form Notice to hypothecary creditors 42-43 V Publication at church doors . . Continues notwithstanding opposition Stayed by judge's order or opposition {see Opposition) Suspension of sale — exceptions R()turn of writ on filing of opposition Proceedings after judgment on opposition — Vendition exponas . . . , . , Contents of venditioni exponas Publication Staying of sale . . Biddinj and Sale — Bids in writing in sheriff's office Affidavit should accompany bids by creditor Affidavit and security may be required from one who is not a creditor Form of bid Endorsation and return of List furnished officer selling . . iSa/e— place of Sale may not take place on Sunday . . , c. 25 i' X. INDEX. Ar.T. I'AOE. [eass'i, pledjjed, oto. E pledge . . lerifi in certain cases listrieta . . property irges io not retard sale— are oady seized— subsequent r second creditor if first iy seized until adjuiication— 640 j 376 I 642 I 377 fhable to sheriff litors ' 42-43 V. c. 25 opposition sition {see Opposition) • • • • • • aition |i opposition— Ftmiittonj • • • • lias ig in sheritf 's office bids by creditor be required from ono I Sunday 043 378 644 1 378 645 378 ()4t) 379 647 379 648 379 649 380 381 650 383 053 380 651 384 053 m 655 386 0<12 ' 391 6i;3 391 0(>4 392 CXA ;-;92 0()5 391 6()l) 394 ()()7 m 668 39./ 669 395 670 39.1 971 39.5 672 391) Execution— cojifinucd. Seizube of Immoveables — continued. Procedure Declaration by bidders Conditions of sale Who may not bid Bids by proxy . , ABT. Deposit with bid required in some cases Failure to make deposit May be dispensed with Refunded after sale .. Duration of bidding— all bids to be received Adjudication to highest bidder Duty of bidder by proxy after sale . . Obligation of purchaser May sometimes retain price Deed of sale — contents . . Becale for false bidding : — petition "Who may file Procedure summary . . . . . . Purchaser may set up the nullity of the sale Where purchaser fails to pay moneys after report of distribution Liability of false bidder May, by payment, prevent , Insufficiency of price realized Imprisonment Vend. ex. necessary to effect , lieturn of Wrii- Form , Certificate of hypothecs must accompany . . If Sheriff cannot obtain it in time Meaning of " Hypothec" Form Duty of registrar if books do not supply information And where property formed part of another division Contestation of Governor may change form of certificate . . None required on a folk enchhe if one was obtained at first sale Registrar is an officer of the court . . Iletention of fees out of moneys by sheriff Efect of sale — not perfect until payment, conveys owner- ship . . Purchaser takes property in its actual condition No warranty, all rights conveyed Servitudes are not discharged thereby • Nor certain Seigniorial hypothecs, emphyteusis, dower, substitutions All other real rights discharged Proceedings to put purchaser in possession Writ of possession Vacating sheriff's sale Petition Delays upon • Nullity may be invoked by faux enchMsseur 855 PAGE. 673 396 674 397 675 397 676 397 677 397 678 680 397 398 682 398 681 398 683 398 684 399 685 399 686 399 687 399 688 400 689 400 690 401 691 403 692 404 717 420 76C^ 438 693 404 694 404 695 405 696 405 696 406 697 405 699 406 698 406 699 406 700 407 701 411 702 412 738 428 703 412 704 413 740 429 705 413 706 414 707 414 708 414 709 415 710 415 711 415 712 416 713 417 714 417 715 419 716 420 717 420 i \m 856 INDEX. Execution — continued. Seizure op Immoveables — continued. Collocation and distribution — delay for preparing f.cheme Contents Form O'der . . * '^f costs )f taxed costs Jf oppositions for payments Conditional hypothecs Unliquidated claims Claims with a term Capital of life rents Interest and arrears of routs Where several properties charged witli different claims are sold . . Experts named to value them. . Report Where discharge of a claim is produced . . Examination of witnesses . . Case where the hypothecary creditor cannot be found Contestation of report, delays . . Form, grounds, — effects Right to file Inscription for hearing.. Answer Oosts •• •. .• •• ,, .. Maintenance of, — effect . . Joinder of several Procedure Homologation — Delay . . How pronounced . . Supplementary distribution . . Collocation for what is not due Appeal from judgment or petition. . Return of moneys if judgment be disturbed Sttb-coUocation — right of Service of.. May follow collocation or form a separate roporv Costs Creditors may exercise rights of debtor if he fail do so . . Payment after 16 days from judgment of homologatio Sheriff retains amounts due creditors who have filed no claim though mentioned in certiiicate Imprisonment of officers in default of Service of judgment on purchaser who retained purchase price Re-sale for false bidding if he fail to pay . . Where no application is filed and no claim appears Seque»tration ordered in some cases In the Circuit Court : Against moveables Second writ for another district if the first be not satisfied tol iUlT. 724 72r> 72(1 727 72H 7;m 72i» 7ao 7;n 7;i2 7H3 TAi \ .127 7H.-) 7M!; 7;{7 7Hi) 711 7U 712 71H 717 711 717 71o 74(1 747 74,S 741) 7oO 751 7",! 7.;i 7o2 7.")!! 7r>4 7r,-, 7o5 7o(i 757 7;)K 7ol) 7(iO 700 752 883 1081 1082 INDEX. 857 iVBT. PAGE. h different claims. • • • ail to pay • • id no claim appears 'if tlie first be notj Execution — continued. In the Circuit Court — continued. All oppositions within the jurisdiction of tlio court Stay of proceedings by opposition Judgments under 9iO to bo execntiid on moveables only Against immoveables in default of moveables Writ May issue immediately without discussion of moveables in some cases Procedure same as in S. C. . . Return of writ to S. C. Of judgments in appeal Prevented by appeal to her Majesty In the Commissioners' Court . . Of judgments of separation . . Executors : Must be present at removal of seals, and makiug inventory May demand the affixing of seals . . Or making of inventory Exemption : From acting as juror From seizure — moveables . . Immoveables From arrest ExHiniTs: Must be filed with return And not afterwards, without notice Filing of private writings . . Cannot bo removed from office Must be returned by tliose having possession of them Plaintiff cannot proceed until he files Are common property Copies may be taken of Cannot be filed in blank Accompany intervention Or articulations of facts Consequences if not filed with articulations In the Circuit Court Ex PARTE : when plaintiff may proceed . . Judgment on notes, etc. On authentic d( sds On verbal agree nents . . Procedure to oh ain • . Plaintiff may r'.nounce OppoBitions to Inscription for proof Notice • Evidence in cases Remains of record Cross-examination by defendant ART. PAOE. lOSIJ (505 , , 10H4 (506 ly 1102 609 1085 C05 • • 108(5 005 1 10,-i7 605 . . 1 lOrtS-O (M 1 lO'.IO ('.07 . . 1170 r.50 , , 1171) 1 660 , , 1212 ' (571 •• 981 51(5 ot , ^ V2CA 703 1'2H1 (190 130-t 704 f 300 232 ' ■ ( :57(; 237 f n.'>i\ 327 -' 7-3 331 ( C.28 3G8 , . G32 372 • • 805 473 00 81 . . 1 IOj 85 . . ! 100 84 ... 101 84 102 84 1 10.'] 84 • ' 1 111 131 ^ , 104 84 , , 105 85 , , 10(5 85 , , 155 151 .. 210 168 .. 213 169 10G!> 601 ( 8(5 74 • • "1 143 132 -• • 89 75 ,. 90 76 , ^ 91 76 , , 92 79 • • 93 79 , , 484 291 (239 184 • a 1317 212 ^ ^ 317 212 • • 317 212 • • 318 213 « • 317 212 I If. m 868 INDEX. Ex PARTE — eontinved. In jury trials In lessors' and lessees' oasea In the Circuit Court . . Hearing in appeal ExPEnxB AND Viewers: Appointment . . . . . . . . Three must act unless by consent . . Entry of consent Nommation of Becusation Grounds for Proceedings . . . . . . Neglect to bo sworn or to act Oath in writing Before whom Beceives necessary papers Fixing of time and place ?nd notifying parties of meetings Parties must bo heard Examination of witnesses Beport Must be made on day fixed — contents Delaying ui rcfnning to file Need not be accepted Motion to adopt Beception thereof May demand remuneration . . Named to liquidate judgment ordering restitution rents Or to value immoveables in order to facilitate the preparation of a report of uiulribution In cases of licitation and partition And of confirmation of title In cases of the sale of real property belonging to minors Appointment Duties . . . . . . . . . . Beport Failure to agree Submitted to the family council . . Factum : In jury trials In appeal — delay Not required in appeals from Interlocutories, 46 V. c. 2C. From Circuit Court Faits et Articles : Party may be examined after plea fyled, on Viva voce Summoning of party Service of rule Appearance in person Answers by corporations Consequences of default Belief from default .. of 822 323 324 825-0 320 327 328 32'.) 330 831 332 333 834 335 330 337 338 330 845 340 344 475 730 1)22 964 1208 1269 1270 1270 1271 1272 393 1140 1152 221 226 222 223 224 224 225 225 INDEX. 859 — ABT. PAGE. .. 394 210 .. 892 r)21 .. 1069 601 • • * .. 1140 637 . . 822 215 . . 323 216 . . 324 216 .. 3 25-6 216 326 216 327 217 328 217 329 217 330 217 331 219 .. 332 219 otifying partiea of ^^^ 219 334 220 335 221 * ' 336 221 ntenta • • " • 337 338 221 222 ., 339 1 222 .. 845 22G . . 346 220 . . 344 225 ering restitution of 1 275 or to facilitate the ibution • • • • • • 736 428 922 532 964 550 belonging to minors 1268 692 .. 1269 692 • • * .. 1270 694 • • • .. 1270 694 .. 1271 695 icil . . .. 1272 695 . , 393 240 • • • . 1140 1 037 om interlocutorief >. 46 V. c. 21 5. 621 • * * • • • . 115' 2 045 fyled, on • • • . 221 ' 171 . 226 177 • ' * . 222 173 • • • .. 223 173 • " * . . 224 174 ■ • • ., 224 174 • • • .. 225 175 • • • • •• • • ..' 25 J5 1 175 Faits kt a nTicLKB — continued. Judge determincH pertinency of refusal to au'bwer Form of rule — aad of answers . . . . . . When taken |)roco,'i/««fi;« Party may re'ase lo put, or to avBil himsel! ol . . Divisibility of answers Expenses taxed . . . . . . . . ... Party served may demand r.ut cannot ref ase to answer if in Court Taxation of and execution for. . Court may order examination to be taken elsowliore before a judge Before Comniissaire Enqu^teur In jury-trials False Bidding (see Exbcction) . . Family Codncil («ee Council) Fees : Promulgation of tariffs In the Circuit Court Must bo paid before revocation of maudnt will bo received Experts, etc., may demand that report be not opened until after payment of Jury, before rendering verdict, may demand . . Punishment of any one other than an advoca^) Certiftcato of reKiHtrar (No. 87) Attidiivit of witnesH attoHtin^ truth of factH contained in rejji^trar 'a certiliciito (No. 38) Order to creditor to answer contestation hiH chilin (No. 80) J)cmand of statement of abaudoninont property (No. 40) Notico of application for appointinont of a curator (No 41) Notice of appointment of curator (No. 42) Alfidavit for warrant of arrest by Commis- sioner (No. 48) Warrant of arrets t . . (No. 44) Hail-bond of Hheriff (No. 4.')) Allidavit to obtain warrant of attachment (No. 4()) Warrant of attiicliinout .. (No. 47' Notice of petition of sale of immovcablcH which tiio owners arc unknown . . . . . . | (No. 48) Writ for tho sale of such immoveables . . | (No. 4!l) Appearance in such case .. (No. 50) Conlirmatiun of title (No. 51) Notice in cases of licitation (No. 52) Nomination of oxpertK in case of tho sale of immoveables belonging; to minors (No. 58) Nomination of experts by a notary in like c:vBe8| (No. .^4) Oath of experts (No. 5")) Report of exports (No. 60) Application for homoloj^ation of report For calling absentee defendant . . Those connected with the Civil Code are in the appendix (First I'art,) of this volume Fon>t.\ Paui'euis {see In Fokma Paupeiiis) FcTiuE llionxs : livo'^ation of suits affecting. . Appeal to Q. B. therein And to tho P. C Garkisiiek (nee Garn" :hment). Gai4Nisiijtent : Attachment before judgment (see Attachment) . . Seizure by — when adopted . . Form of writ Service .. *.. No condemnation unless service is personal Answer by defendant Effect of Declaration — how made At what time Contents of Presence of creditor at "*, Objectiona to questions by creditors at AUT. I'AtlK. 884 22(1 4Ht) ■J'.I'J (Mil :w(i 10()5 iV.W 700 107 701 411 751 !•); 7i;(i w 770 4l;; 414 812 1 47(i 812 ! 471) 828 4h:; 84)! 4',)t, 8 V, 49H 1108 n-i-, •.(05 52.". ilDS .V2H '.l.->() 544 ll'XI -.... 1200 ()',I2 i'.^(;'.) (Ifl'J 1270 (il'i 1 27(1 (iili 1J72 (ilt., Gl 7'Im 81 o'.; 105.-< m> 1142 (Wi; 1178 05.") 855 501 ( 558 32;i ( 012 3." 618-14 358-',! 015 300 015 3i;il 015 31)0 010 301 017 301 618 3«'.' 619 302 619 302 619 302 INDEX. 801 (lAnNIHIIMENT — ('OlltittUed. J lulMinent if uiioontoated Horvico ttjid execution of . . . . . . . , j ExpoiiBos of Hariiiahee— taxation— cxecntiou therefor .. Preference where Heveral aeizuri'M are niiulu Wliere the Karnishee only owes conditionally . . . . | Default to declare— relief therefrom . . . . , . I Effect of judgment j ConteMtdtion (>f' declaration ., ,. ., .. .,1 Filing of— delay ! Procedure upon . . . . , , . . . . . . I Hoizure of salaries of public ofticials . . 88 V. c. I2! Jud^^ent orders deposit of titles or that moveables be! sold I Distribution of moneys levied Discharge of Karuishee if he owes nothing— costs In the Circuit Court Oappb : Exceptional proviHions for Apiwals from . . Chef -lieu of GovKUNon, meaning of word Gl'AlU)IAN : To moveables seized Who may and may not bo . . Hiftns ])ruci\i verbal Receives triplicate thereof . . May remove effects or place guards over thoui . . Koplaoement of Receives notice of sale Even where things were attached before judgment In case of second seizure, creditor must name the same Mr jroduce effects at sale . . If he fails to do so, may bo imprisoned . . Discharge of .. .. .. .. Taxation of foes In seizures by garnishment garnishee becomes . . In attachments before judgment . . Haiikas CoKi'UH : Ad testificandum . . . . In other than criminal suits — writ — contents- who may apply for Application to bo supported by affidavit . . Form of writ . . Service and return Rule for contempt in case of non-compliance with writ Proof and dejjision on Prisoner may be admitted to bail — security Transmission of papers to Court — decision Written issues may be ordered — trial Proceedings to controvert truth of return similar in Q.B. and S.C Costa AHT, (121 (•'22 (t2() (122 ()2a (121 (125 (121) (12(1 (527 020 (IHO (liU I08L' I 1 \ 27 1117 1355 560 5(J0 5(10 5(11 5(12 5(52 571 57(5 577 55)0 5!»7 59(5 (100 (51(5 851 253 1040 10 U 1012 101:} 1014 1015 1040 1047 1048 1040 1050 lAOE. lilll HllJ :)ii:) H(14 !5(ir, 3(15 3(5(1 3(57 3(57 3(17 300 871 (J72 372 (50B 18 28 020 720 1(5 332 332 338 334 334 334 338 340 340 348 341' 349 352 381 602 194 585 587 587 587 588 588 588 588 588 589 589 ,1 «'■ ii!(' 8G2 INDEX. IIabeah Corpuh — eotUiiwcil, Runowal of application after refnasl Party impriHoned for debt or under prooeaa iu civil matters cannot bo dlBoharf^ed upon . . IlEAniNo : Notice of inscription In jury trials In review . . . . In appeal — inscription From Circuit Court In non- appealable oases, CO. In appealable cases, C.C. In Conimissionera' Court . . Hbibh : Attend removal of seals May demand sale of property of aaooesflion Under benellt of inventory Holidays {$ee NoN-JUBiDiCAii Days) HOMOLOOATION : Of report of arbitrators Of collocation and distribution scheme, (lee TIONI ■• •• ■• •• ft* HosnAND AND WiFB : ExEcn- Service of summons in suits against or between Competency as witnesaeB 85 v. c. Declaration where wife wishes to carry on trade Separation of property From bed and board Entitled to notice of propariuf; inventory And to custody of inventoried effects Hypotuecaby Recodrbe : Against immoveables of which the owners are uncertain or unknown, petition for sale Purport of (Mitition . . Accompanied by affidavit Proof and notice to answer demand Publication of notice Failure of owner to appear, decision and order for sale Judgment need not be served Writ of execution — contents Appearance of owner— proceedings hereafter Of several claiming ownership Where some of the joint owners only are known, credi- tor may sue them and proceed against others under preceding articles Hypothecs : Certificate to be obtained by eiher'S from registrar, {see Bkoisxrar) Discharge by confirmation of title from Et'ect of sheriff's sale as to Meaning of term Capias on Appeal AllT. lOfil 10C2 m ■MH 500 1141 11C2 10<«> 1073 1208 1298 1815 1821 2 347 749 I 35 1 67 981 972 985 1298 lol3 POO 90'. 902 903 904 905 90t> 907 90S 909 911 C98 949 710 j699 800 1142 u INDEX. 868 prooeaa in civil ime, (tee Execd- lerB are nacertain Lnd order for sale rom registrar, {see\ 85 V. 0. 7 luEOAii Drtkntion: of lands hold in free and common Boooa^o lUMOVEABLB : Suit may be brought in any diMiriot wherein in Hituated part of the Described in the writ or declaration Seizure in execution of {nee ExKcrxios) Opi)OBitionB to seizure and sale of Hypothecary recourse where owner is uncertain o.' unknown Conflrmation of title Belonging to minort, how sold If valued under 9400 Appointment of experts By judge or notary Oath of experts — report Failure to agree Report submitted to family council Judge may tlx upset price Reasons to authorize sale form part of record Publication of sale Bidding — private sale Hold undividedly between tutor »nd pupil cannot be sold before a tutor ad hoe has been named Belonging to eorporationit in liquidation sold by tutor upon suit brought where debts remain duo . . Bold to highest bidder after notice of sale if no debts exist . . Effects of .. Bold on petition of bailleur de fondi where purchaser cannot be found 83 V. c. IG Impbibonment ; Of witnesH refusing to give evidence Of persons disturbing sittings of court . . Or detaining records Of exports refusing or delaying to repoit For refusing to open doors, &c., to sheriff For deteriorating property under seizure For false bidding Of sheriff, <&o., in default of paying moneys levied Of notary refusing to grant communication cf papers Special rule and personal notice required to obtain order of Power of judge in certain cases to order Against tutors and curators Hours during which it may be effected Where and when defendant may not be arrested Exceptions Form of writ or order Where defendant resides in another district writ may be addressed to sheriff there . . How effected Petition for alimentary allowance Recision of order for Petition or motion Tor relief from AHT. I'AOK. 1107 012 41 41 r,'2 50 vm 872 mi 884 ilOO 628 040 642 1207 092 097 i208 692 1209 092 1270 094 1271 695 :272 695 1274 696 1275 696 1276 696 1?^"7 696 1278 097 1012 562 1013 5i/J 1014 E>«3 628 277 202 7 17 102 84 338 2:2 56!> 336 016 379 095 405 759 438 1251 088 781 448 782 449 783 450 784 450 785 450 786 450 787 451 788 451 789 451 790 451 791 452 792 452 Ml 11! 864 INDEX. Imprisonment — continued. Grounds for discharge Must bo ordered by judge Once granted, precludes further arrest for same cause Improbation : Against documents on which a claim is based Or return of service . . Lies in certain cases . . Form of petition Service Deposit accompanies . . And power of attorney . . Ulado at any stage of proceedings Suspends principal suit Party declares whether he intends to use document Failure to declare Proceedings upon declaration being made . . Description of document to be prepared Document may not bo removed Nor copies gi'anted of it I-'iling articles Filing answers Contestation subject to ordinary rules . . Judgment Action of, subject to ordinary rules Competency of witnesses . . : Produces same effect as an evocation in the Commis sioner's Court Security for costs to be given before recoi-d is trans mitted Improvkmknts : Value claimed by incidental demand in suits for the detention of free and common soccage lands Incidental Dkmand : Ihj plaintiff' , Form Jiy defendant . . Form Compensation may be ordered Joinder of issue Ordinary rules of procedure apply , For improvements on lands held in free and common soccage In appeal Incomi'etency o*' Witnesses («ec Witness). Inferior Jurisdictions — Certiorari Commissioners' Court Justices of vho Peace Rycorder's Court Trinity House In Forma Pauperis : Cases where party may be allowed to proceed *KT, JPAGE. 703 7'.;i 795 ir.9 I 71) ( IM) 16!) IW 161 Ki:} Kil ICA Ifii 165 106 167 168 169 174 170 171 172 m 175 252 1199 1200 ( 18 1 1 19 150 151 152 151 153 153 1110 HOC, 1220 1183 1216 1217 1218 453 45;! 43.1 loi (18 154 154 156 156 150 156 156 156 157 157 158 158 158 159 158 158 159 159 159 193 CG9 609 1110 i 612 22 147 148 149 150 149 loO loO 612 649 673 6(!4 672 073 673 31 32 INDEX. 865 AUT. PAGE. r arrest for same I is basod CO use document • • ■ * )eing made • • lared ules 793 7'.;i 795 lo9 \ t ir.9 ! lii'.) , ifii m\ '. ic.i • IM ; Ifii ! 165 1 100 \ 107 ' 108 ! IG'J 171 170 171 172 1715 175 4o3 ■15;i •iol 154 08 154 154 15(1 156 151) ' lull ; i5(; 1 156 157 i 157 ! 158 158 158 15!) 158 158 159 159 159 193 ition intheCommis- before record is trans- 1100 1200 ! CC9 I ! Gt'.9 land in suits for socca^e lands the; 1110 I 612 i in free and commoni NESS). ( IB \110 150 , 151 \ 15-2 : 151 ' I 15:5; 1110 I 1100 ' 12-20 1183 1 121t) 1'217 1218 22 147 148 149 150 149 150 150 612 649 , 673 1 664 i 672 ; 673 673 AUT. 32 33 110 117 110 0(18 10' f> I0(t:5 103.-, 1030 1037 cd to proceed 31 32 1 ! In Forma Pauperis— contmnerf. Bevocation of leave . . Proceedings after judgment . . . . . . * " Informalities : In writ and declaration pleaded by exception to tho form Amendment of Waiver of right to urge ] iNFOmtATION : By Attorney-General in proceedings affecting Corpora- tions Special plea to . . Proof of allegations To obtain annulling of Letters-patent Service of Appeal from judgment Injunction : Act to provide for the issue of writs of, 41 V. c. 14 Cases in which it may issue Petition — affidavit notice — exceptions . . security . . Purport of writ Service thereof . . Proceedings commenced in term may be continued in vacation and vice versa . . Powers of J udge . . g. j 7 May be granted incidentally on petition . . . . . . | s. 8 Additional injunction s. |8 § 2 Judgment subject to review and appeal s. Shall be executed provisionally during appeal— excep-! tions . . . . . . . . . . . . , . j s. 10 .Judgment, service thereof, costs . . . . . . . . | h. 11 Violation or disobedience of— destruction of what has been done in contravention thereof . . . . . . I s. 12 Fine — Imprisonment.. .. .. .. .. . . I s. 12 Inscription «>» /«MX (,2 For lietnetv . . . . . . . . . . . . 408 Delays run during long vacation . . . . . . 403 Suspends execution . . . . . . . . . . 499 r. PAOE. 33 34 88 or. 97 I 559 500 500 r.KO 581 .581 570 570 572 573 574 574 574 574 575 575 575 575 675 576 570 576 154 181 1.''.2 183 183 185 522 186 186 186 002 609 268 268 522 80 79 302 269 303 ft' •i i Hi w ill] f 1 i F. C. V 866 INDEX. Inscription — cont inved. For Review — continued. Form ... In suits for the illegal detention of lands held in free and common soccage In appeal Insolvent : 1 Distribution of moneys levied by sale of moveables wherej debtor is ... ... ..." ... ... ...| Capias, where party refuses to assign though ... ...[ Attachment in like cases ... ... ... ... ...[ Inspection of Documents : | Notaries bound to allow parties to deeds to make ...; Judge's order required to oblige them in other cases — exceptions . . . . . . ..'..; Order of inspection upon refusal . . ^ . . ' . . : Purport of order . . . . . . . . * . . . . J Service . . . . . . . . . . . . j ^lontion thereof in copy granted by Notary . . I Non-compliance pimished . . . . . . i Loss of original — deposit of copy . . . . . . ' Application to compel party holding a copy to deposit it in like cases Service of petition .. .. .. ., ..i Order of deposit . . . . . . . . . . , Interdictkd Persons: 1 Advice of family council to appoint Curator to Judge's order to sell immoveables of Interest : Order of collocation Interpretation : Of rules of procedure Of codewherea difforence exists between the two versions Interpreter : May bo appointed by Court iNTEHUOrtATORII'.S : On facts and articles (see Fait.s kt Articles) Accompany Cotnminsion Itoijatoire Intervention : By whom it may be filed Procedure to be followed Exhibits must accompany Does not stay prooeeduiga unless allowed Suspends suit if allowed Must be answered after service Contestation subject to ordinary riikw . . Of creditor sued for separation of property In appeal Inventory : Benefi of {see Benefit of Inventory) 01 moveables seized {»ee Phoces-verral) Ir. attachment by revendication Of successions or community dissolved by death I pon the removal of seals it will be ordered Wiio may demand and take part therein Presence of parties re(|uired ART. P.'.OE. 500 303 1111 013 1121 C23 G03 354 7<.lft 470 831 489 1245 fi87 1246 (187 1247 t)88 1249 r.88 1249 (ISH 1250 im 1251 r.88 1252 «88 1253 1254 1255 ()88 fi8!) ()89 1256 r,8!) 12(17 6!)2 7:;4 427 21 2,3 1361 724 10 18 221 171 311 211 154 150 155 151 155 151 156 152 157 152 158 153 158 l.^.'i 492 2!M IKiC m 1321 709 559 ;)82 870 511 1304 704 1297 702 1304 701 1305 705 INDEX. 867 ABT. PAOE. of ianclB held in, moveables where} ds to make .-■ 1245 I in other cases— ^^^^^ ■ ".'. 1*247 1249 ecu the two versions ^.la'lCLKH) to merits are filed- Inventohy — continued. Choice of notary Must be in authentic form . . . . . ] [[ Form and contents Recording of protestations Petition to obtain entry of protestations . . . ' Judge may order exclusion of parties having no rij^hts By consent sale may be proceeded with at onco C'^ jtot,'y of effects inventoried . . . . . . \\ Provisions applying to all cases where Ir^ventory is required — notice of sale Of property belonging to a corporation m liquidation Staying of proceedings until delays expire to make Investigation : Court may order extraordinary IsaPEs : When completed on merits On incidental demand On interventions On improbation On disavowal "When preliminary pleas and pleas proof had on all And so in jury trials Delay to complete In the Circuit Court Joint Stock Company (see Corpouation) Judge : Moaning of the word in the Code His orders must be obeyed May require oath And receive it llecusation of (see Recusation) May render judgment in default cases . . 17 V. c. Evidence taken before (see Evidence) Jlay extend delay for pleading Sittings of, when there are more than one in a district Must paraph judgment Judgment may be pronounced in his absence . . Or after his promotion, &c And so in review And in Circuit Court, appealable And non-appealable And in appeal Inconijjotency of — in review In appeal Province of, in jury trials Replaced by prothonotary in vacation At enqufite And in non-contentious proceedings JruoMENT : Default and ex parte ,., Revision of ... ., ,.. Opposition to , In the C. C. non -appealable .., ART. 1300 1S07 i;jos 1309 1310 IHll 1312 1313 1314 1000 120 PAGE. 705 705 705 706 706 706 707 707 707 5G2 98 321 215 148 I 145 lo3 I 150 158 172 198 132 418 13i) 1070 CI 5 5-8 11 (11 (30 17() 205 141 464 473 4(59 4(58 502-4 1080 1094 1170 40'. I 1158 406 4()5 284 1339 87-93 483 484 1099 153 159 165 114 246 1.30 601 56 16 16 18 18 31 159 77 197 131 269 274 272 272 304 603 608 650 299 647 243 270 204 709 74 290 291 609 til I 'ill it i\ 868 INDEX. Judgment — continued. On confession . . Acceptance of . . Non-accept>',nco .. Where there are several defendants . . In Circuit Court. . On declaration of garnishee On report of arbitrators &c . . Ordering restitr ion of rents &o. .. On an account . . Ordering resti'uti en Ordering secmvity t< be put in In hypothec"! / as,Lion8 where owner is uncertain Of partition oi township lands held in common . . In actions en partage .. In licitations . . En homage In confirmation of title In action for separation between consorts On certiorari . . . . Of non-suit when security for costs is not niahed Motion for, on verdict In arrest of For, non-obstante veredicto or new trial By prothonotary in vacation By judge promoted &c. In the Superior Court . . Cannot be stayed by change of status Rendered in open court . . For damages contains a liquidation thereof What must be set forth in Must be entered in register Differences between draft and register Need not be served Execution of (sfc Execution) .. Revision of Appeal from In the Circuit Court . . In review In appeal . . . . . . . . . . . , • In ComminsioJiern' Court JuniKDicTioN : In personal actions . . In real or mixed actions In suits between consorts . . In matters of succession In suits for damages against public officers In suits in warranty and in continuance of suit Where there are several defendants Where immoveable is included in several districts Where sole judge is liable to be recused . . Courts may suggest want of ART, I'AOE, , , 94 79 i)6 80 97 80 98 81 . . 109". '•|08 . . r)2i ;ii;4 • I 347 227 47r> 275 . . 5H2 315 r>;t.i 315 , . 514 31] , , 90() 520 91 (> 531 922 532 , , 927 533 942 511 • . 907 .151 977 5.-i;5 • • 1232 081 V- 120 i)8 , . 421 247 , . 424 218 , , 428 247 , , 4()5 270 , , 470 273 . , 4»)8 272 , , 4(;s 272 , ^ 4(19 272 , , 471 273 , , 472 •^73 47:5 274 , , 474 274 f 477 27() • * ( 90t) 52ii .■. 545 31 ' 5H2 r,u 90(') 91() 922 927 942 9()7 977 1232 fiir- ew trial itatuB ion thereof lef^ister lofficers lance of suit Iveral districts Ised . . 120 421 424 423 4()5 470 4t)8 4()S 4(;9 471 472 473 474 ( 477 "( 90t) 545 494 ( r)13 1 1114 1079 .502 1170 1200 79 80 80 81 COH 31)4 '227 275 315 315 311 o2() 531 532 533 511 551 553 (Wl !)8 247 '.Mrt •217 •270 •273 •272 272 •272 •273 •273 '274 •274 •27() 5'2il 3U» 2'.I5 310 fill i;03 304 I (150 G70 34 : 31 ■ ; :«7 1 40 ■ ' 35' 40 ■ ! 39 ! 41 ■ 30 40 ■ 40 41 ■ 38 1 40 ■ 41 41 ■ 42 4'2 ■ . 114 88 ■ Jurisdiction —contimied. In suits between lessors and lessees 111 capias Of the Superior Court Of the Circuit Court (see Circuit Court) . . As to suits concerning township lands As to oppositions to seizures . . Of the Court of Queen's Bench Of Privy Council Of Commissioners' Courts Of J ustices of the Peace Of Kecorder's Court . . Of Trinity House JcuoRS {see Jury), Jury : What cases triable by Option for trial by . . Composition of Assignment of facts . . Statement of facta for Judge May be dispensed with Venue of trial . . Prothonotary to prepare list Revision thereof Qualification of jurors Who need not act Fixing day to strike panel . . Striking panel Failure of party to attend . . Failure of party demanding trial to proceed Summons of jurors, in mercantile cases De medietnte lingua venire faciax Notice to jurors . . Service of venire facias Return . . Motion to lix day for trial Formation of jury -challenge of array . . Decided by Judge If allowed Impanelling In mercantile cases . . Challenge for cause . . Grovmds for I'jxamination of Juror Founded on judicial condemnation Fining of Jurors Tales Swearing of Jurors . . Factum to be furnished Default of parties to appear . . Plaintiff may abandon suit . . ART. 887 1105 808 28 10.53 1107 1083 1114 1178 1188 121(5 1217 1218 PAGE. 518 611 475 29 590 612 ()05 614 ()55 665 672 673 673 46 348-9 350 ' 351 , 352 353 354 355-6 357 361 358-9 3i)0 V.c. 10 3f)2 367- 92 i 370 I 371 I 3(53 I 364 ' 372 ' 373 I 374 i 375-7 ! .305 i 378 I 379 I 380 ; 381 i 382 1 382 :^3-5 3S8 389 I f 376 ! ( 409 391 392 393 394 395 227 229 230 230 230 230 230 231 233 231 232 232 234 2.35 236 236 234 234 236 230 236 . •237 235 238 238 238 238 238 238 •238 239 239 237 244 240 240 240 240 241 ■5? ' i'i 870 INDEX. 85 paid JuBT — eont inued, Nu paper to be read without leave to . , Evidence of witneBses Notes to be taken and copy prepared By stenogrophy By commifmion Fails et arti'ies \ Limited to facts assigned . . Whore no facts are assigned Kight to \g of Wheru it must be special Where it may be general Kecd not be pronountf^d till fees are I'xtif'utiou for fios r))i u1j issues Cannot pronounce on costs Motion i or judgment on verdict Ho\v oppostd N<)t> obstante ccredicto How and when made . . May be granted in certain cases In arrest of judgment How and when made , , When granted For neW trial . . . . . . How and when made . . May be granted for certain causes Must be granted in certain cases Affidavits of jurors to explain verdict cannot be received Jdbttces ok thk Peace : May serve on jury Jurisdiction Remedy against their decisions Landlord and Tr ...nt (see Lessors and Lessees) Lands : Partition when held in common . . In the townships Title to— confirmation thereof Illegal detention thereof in townships has concurrent jurisdiction Conclusions for rents, issues, etc. Procedure Defence— incidental demands Purport of judgment . . Review thereof . . • . Circuit Court ART. 896 397 398 39!) 402 400 401 403 J A 40i> 406-7 408 408 410 411 41i« 4]:-! 4.; ■ 4Il> 41(> 418 417 419 421 422 422 423 438 422 424 431-3 422 423 42(i-7 430 428-9 358 121 () 1220 8H7 919 912 949 1107 1108 1109 1110 1112 nil I i;t INDKX. 871 pared AKT. 396 397 398 35! V, c. ..1 301! . . I 402 . . 40t) . : 401 .. .1 ^^ are paid 3ea s 405 !406 -7 I 408 I 408 I 410 ,| 411 . 4lVi .j 41H ., 4.!- . I 41i) .! 410 418 417 41!) 421 42*2 422 423 433 422 424 431-3 422 423 42(5-7 430 I'AGE. 241 241 241 242 242 .U3 242 24H 24a :iA 24:^ 243 244 244 244 24- ^15 24 S 24o 24(; 24() 24(5 24 li 247 247 217 247 •>.■.') verdict cannot be lESSEES) hips— Circuit Court tc. 358 12 1() 1220 8H7 919 912 949 1107 1108 1109 1110 1112 1111 247 248 2iil 247 247 248 251 428-9 1 251 2B1 67'2 G7;t 518 531 530 544 612 012 (512 (512 (513 (513 Lands — contimted. , Illegal — continued. Appeal therefrom Sale thereof for non-payment of price (»ef Imjiovk- ABLES) . . ;};j y c. 1(5 Lease ; Actions on — (see Lessors and Li:s.sei:s) Writs, how addressed Lessors and Lessees : Suits may be proceeded with during long vacation; between . . . . . . . . . . j Delay upon summons in such siiita Jurisdiction of the Courts . . . . . , . , 1 Lessor may demand rent and issue attachment Appearance of defendant Filing of plea \\ Completion of issues Inscription for proof Closing of proof \ Taking of evidence . . Inscription for hearing Judgment Writ of possession LiTTEns Patent : Annulling and repealing thereof . . .S'cjr« ,;acirt8 — information Service — hearing — trial Appeal . . . . Granting lands— cancelling of LiCITATION : May be ordered in certain cases Parties to the suit Special tutor to certain minora Valuation of property before judgment by experts One expert suffices if all the heirs are siii jurix . . Proceedings on report Allotment of shares Return — formation of mass — pretakinga Advertisement of sale Publication at church-doors, etc. . . Any other party may proceed on failure of plaintiff to do so . . . . . . . . . . . . . , p'iling of oppositions Suspension of, until after oppositions are disposed of . , Bidding at prothonotary's Adjudication — deed of sale Efifect of Payment of price— /o/I<; enchtre Claims for payment Distribution of moneys Cases where immoveable lies in several districts Voluntary LiQDIDATIbN OF Damaqes : In judgment . . . . ART. I'AQE. 1113 (513 ' r,28 887 518 899 522 f 1 13 1 889 521 j 75 (55 \ 890 521 887 518 1105 611 8H8 521 891 521 892 521 893 521 894 : 522 895 522 89(5 522 897 522 89H 1 522 899 522 10:M 580 1035 580 103(5 580 1037 580 10:)8-9 580 927 533 920 532 921 5.42 922 532 923 532 924 533 925 5.'{3 92(5 533 929 533 930 535 931 635 932 535 933 536 634 636 935 536 936 5.S7 937 537 938 537 939 638 940 638 928 633 471 278 ,1 lis 1 872 INDEX. Liquidation of Damaokb — continued. In capias .. In attachment LiTiaiENDBNCB ! A ground of exception Long Vaca tion : Courts cannot sit during . . . . Party not bound to proceed during Delay for inscribing in review runs during Magdalen IsiiANDs : Exceptional provisions for Appeals from Mandamus : Cases when it lies — who may demand Petition for— aiBdavits— order for writ to issue Service of writ Subsequent proceedings Peremptory writ if the petition is well founded Rorvico thereof Imprisonment on failure to obey Return of writ by party addressed ( ase of corporation elections Notice of election Election void in the absence of proper quota of electors Right of appeal — delay upon Marginal Notes : Authentication in depositions, of Mabriagk : Oppositions must be accompanied with a notice Service thereof— delays thereon . . Proceedings are summary Non-suit on failure to present the opposition Court may summon parents and friends to give advice Appeal Regis of , . "'' Husband and Wife). Master and . , ;t : Suits between Merits : Pleas to, (see Pleas) MiNtfii : Peremption runs against a , . May sue for wages in Commissioners' Court Appointment of tutor to Alienation of moveables where a co-heir is Of immoveables, (see Immoveables) . . Minutes : Of proceedings on writ of possession Of seizure of immoveables {xee Execution/ Inspection of notary's {gee Inspection) . . Motion : In lieu of preliminary plea Upon incidents of proof For judgment on verdict Non obstante veredicto . . ART. I I'AOE. 801 886 ISfi 1216 ISfi 471 496 IKi 1 13 •103 2(19 463 I 269 27 28 1142 638 1022 ')fi5 102;i r.(;7 i()2;i r,G7 1021 o()8 102.-, hm lono 570 102o 508 1()2C. 56!) 1027 56!) 1028 5()9 1021) 569 io:{;j 579 295 207 98 1267 (;',t2 550 322 638 375 1245 687 135 116 319 213 ^21 247 422 2)7 INDEX. 873 1 ART. I'AOE. 801 i 171 835 490 . . 136 110 1 13 , , •1C.3 ! 209 iring 4(53 1 209 27 28 . . 1142 038 I 1022 565 fit to iB8ue 1023 507 1023 507 , , 1024 I 508 1 founded 1025 1 5(i8 10)iO 570 , , 1025 i 508 1020 1 5()9 .. 1027 ! 509 ' 1028 i 509 r quota of electors 102'.) ; 509 1033 579 ■ ■ • • • • 295 ! 207 1 th a notice 0<)0 ! 5.51) 991 1 550 . 992 1 557 josition . . mds to give advice 993 1 557 995 557 990 1 557 • • • • • • 1236 083 1216 672 • • • • • * 136 lift . . • -156 203 ' Court . . . . 1 1103 OliH 1256 (Wll leir is 1320 ■ 708 1207 ' 092 . 550 322 n'loN/ ') . ()38 . 1245 375 087 . 135 116 , 319 213 . ^21 247 . 42 2 217 Motion — continued. For a new trial In arrest of judgment To adopt report of experts, Ac. • To homologate report of arbitrators, tVc. For peremption To extend delays to account For parties to declare if they contest opjiositiou For homologation of report of distribution To be relieved from imprisonment For leave to appeal from interlocutory judgments For certiorari . . Moveables : Seizure of (««e Exkcution) Municipal Cohpokatio.vs : • j No appeal lies in matters concerning . . , . , ■ Review in such cases . , . . . . . . . . | Such cases have precedence . . . . 4H V. c. 21 j New Thial, (tee Juky) ! Non-appealable Cases Appearance of defendant . . Default recorded by clerk in the judge's absence . . \ Judgment by default . . . . . . . . . . ■ Confession of judgment . . . . . . . . . . ' Proof and judgment by default . . . . . . . . j Procedure siniiiiir in term and in vacation . . . . ! If no plea in writing be filed defendiint may be called, upon to state what allegations he admits .. ..i Procedure where return h\ made in vacation i;:ur,o aa' appealable cases . . . . . . . . . . . . ; Notice of inscription . . . . . . . , . . . . ! Proof is made orally Execution of judgments under ^40 — on inunoveables; pnly — exceptions . . . . . . . . . .< Oppositions — seizures by f.'urniHhmcnt . . Suits determined summarily — cases under ?25 decidtd according to equity Transmistiion of draft of judgment in the abKcnco o; judge NoN-CONTEXTIOL'rt Pl'.OCF.EDINOS . . . . . . , . | NoN-Jciui>icAL Days : j Courts may not sit on . . . . . . . . . . 1 What are . . . . . . . . . . . . . , Case where anything is required to bo done on Delays ran on . . . . . . . . . . , . i Party may not be summoned on . . . . . . | Seizures cannot bo made on . . . . . . . . ' Nor sales on execution . . . . . . . . . . : But may be made on the next day in certain caseR 42-3V. c.19. Nor debtor arrested . . . . . . . . . . . . } Exceptions Non-Pkos : Judgment, in appeal, of NoN-SriT : Where writ is not returned AHT. 422 42:.' 31 :, 317 467 522 580 749 l':,2 lil9 1222 1033 •194 422 Ju",3 IK'.l 10:14 1100 101)- 1090 1097 lOV'S 1099 1099 1101 1102 1103 PAOK. 247 247 22fl 227 2(>3 313 346 434 452 021 077 579 295 303 247 590 007 i^08 OOO ()08 008 COS 609 009 609 609 609 CIO I •104 I 610 1104 1230 1 2 3 24 54 575 o72 785 7S0 1129 82 610 683 13 15 16 27 53 340 396 16 450 450 632 71 i::(f 'i '( 874 INDEX. 83 V. c, 17 NoN-SoiT — continued. Of security not put in In jury trials On oppositions to marriage NoTAniBH : Compihont witnesses on improbation May be obliged to allow parties to take oomniuaioation of documents {sfe Inspection of DocnMENTs) Chosen to make inventory of succession Their duties on making inventory May preside in non-contentious prooeedinj^s, . !)0 V. c. 38 Note {see Bill of Exchanoe). Notice : To be given parties of all papers filed Of inscription for hearing in law On merits In review For proof Prothonotary cannot make orders unless adverse party has had Of motion for peremption Of roiiuuciation of judgment Of application for distraction of costs Of putting in security For costs Of motion to extend delays to account Of sale of moveables to defendant and guardian To creditors to file claims wIkmo debtor is insolvent Of sale of moveables to the public Of sale of immoveables To liypothecary creditors . . . . 43-4 V. c Of ap))lic)ition for writ of possession To appoint experts to value immoveables for the purpose of preparing report of distribution Of statenu lit and declaration of abandonment of pro perty being filed Of application for contrainte par curp.t For bail Of sale of immoveables wliereof owner is uncertain Of sale of initnoveables in licitations Of applications for confirmation of title . . Oath {nee Affidavit). Court or ju'^? ;e may c .ler or administer. . Who may r ceivo In the Circuit Court Affirmation in lieu of . . Decisory (xee Decisory Oath) Of witness — how administered On commission of enquiry And commission roijatoire Form iiia\ be changed Refusal by witness to take . . Experts must be sworn . . . . . . . . Before whom May administer . . 25 AltT. >AOK. l'2i) 11-^ !i!)r> •211 ()'J3 .ir,? 252 l!l» 1245 (IH? iiioi; 708 i;t()!» 707 Gsii 4(12 'Ji'iH 4ti2 2(;h 402 2()S 4!)8 :m 235 182 4(jr) 270 4;-.7 2i!;t 477 1^7(i 482 288 615 »11 IIH -.27 314 571 33H (ion ;i.>i 572 ;i:ifi UH ■m 712 7,1(1 7(15 7S1 82(1 '.It 1 1 i»2:» i)5t) 11 30 lO-)!* 30 443 ( 255 I 2rt7 ;{().■) 310 25(1 257 330 331 334 INDKX. 876 AriT. ' UflR. • • • • ' • i'2tt 1 iia , !i'.»r, -jji 1 • • • • • • '.)'J3 ' r,r,7 n '2r)2 1 103 ake oomrauuioation i F DOCUMBNTH) . • 1245 | (18? jBBion i;!(■,;( ■ • • • 477 ■ ;'7i; ata 482 ! 'm . . 615 : HU ".'. 33 V. c. 17 m mnt 1 •'"'27 ;m uul guardian ..j 571 33H ebtor Ih insolvent . . (iOI! I ;i,>l .1 • • 572 1 :i;!s , , (548 371) .'.' 4»-lV. c. 25 1 m jn 1 712 1 llli cables for the purpose ition 7;iC. •i'28 iibandoninent of pro-; • • W> ' 441 rpx 7SI UH H2() \x\\ waer is uncertain '.lot :,2:, ins ! >''-i'' ^':':< f title '.loo m 1 11 ': IH 30 iil ■ • • ' lOoSI o!)5 30 ;n . . 443 i Of*". 2:)i) 1 J'>0 205 • . 3()r. '2011 ' . 310 '211 . 251; 111.) " . 257 J 19o . . . 330 i '217 . 331 219 . . . 3:-i 4 1 '220 Oath — lontinued. Court may order parties to apjiear and answer ({uestions to elucidate oaso . . Bummona of parties Of Bureties In eapiai Of sequestrator Of juror Of curator OllJKCTIONS : To evidence — how noted To questions by witness To sureties . . . . To questions put to garnishee while making his doclar-j ation . . . . . . . . . . . . . . I To judge's charge to jury . . . . . . . . . . | Office : I Usurpation of public . . . . . . . . . . I Omission ; In demand remedied . . . . . . . . . ' Oi'i'osmoN : i To judjiment by defendant .. .. .. .. ..; Form I Athdavit and deposit accompany . . . . { Service and filing of . . . . , . . . . . 1 Service of certificate of tiling of . . . . . . j Effect Notice of . . Contestation of . . Is a defence to suit Procedure Costs, if maintained Declaration held to be proved whore nono is filed By third partie* ; who may file Form, aMdavit Procedure To judgment of distribution by creditoia To seizure of moveables — may be made by debtor and others Grounds of Lessor cannot file Election of domicile Stay of proceedings— affidavit Affidavit unnecessary in certain cases Service Motion to declare whether parties admit or contest i Contestation subject to ordinary rules Peremption of . . In the Circuit Court Non- appealable In the Commissioners' Court To seizure of immoveables — affidavit — stay of proceedings For certain rents does not stay the sale — returned by sheriff as oppositions for payment . . AKT. 444 44!) 51(5 K07 H78 31)2 12150 (203 I 2!K) 274-5 517-20 (510 405 101(5 ' 18 14« 4H4 485 48(5 487 488 488 I 481) 1 481) 41)0 41)0 41)1-2 403 510 511 512 7(51 580 581-2 582 583 ' 583 584 ..85 58(5 587 588 1083 1103 1213 051 (.40 PAOR. 258 258 811 474 510 240 01)1 196 206 200 an 802 248 5(53 22 147 201 21)2 21)2 21)4 204 204 21)4 21)4 21)4 21)4 21)4 21)5 301) 310 310 439 341 341 342 343 343 345 340 346 347 348 (505 010 072 384 376 876 INDEX. Opposition -ront/ni/crf, To teizure of immoveablei — contiuueii. BubBoqueiit writs de t«rrii returned an opiumitioiiH Wliun f\le(l EtTi'ct, if tiled after delay Botiirn in hucIi canoa Fublioutiontt proceeded with .. Bale proueudcd with in certain casoH Delivered to Hlioriff Retiirnud by HlierifT In the Circuit C/ourt Non-appealablo Liability tor damages of party who flloB an unHUo- UUSHful To annul In licitationtt In GiiMcs of cunllnnation of title To tcithdrnw . . In licitution^ In cases of c.ontirination of title T'o secure rlKirni-n, who may flle In licitations When unnecesBary In cases of confirmation of title To chanjea, when and by whom filed Proceedings similar as on oppositions to sale of moveables Proceedinf^s after decision, on venditioni expomut . , Does not stop sale under venditioni cj-jw/kik— excep- tions For payment — rof^ister kept by prothonotary When necessary How and when filed Costs on Election of domicile Payment of moneys where none is filed Contestation In licitations En sous ordre . . Must be served To marriage {see MAiiniAOE) . . May be proceeded with during lonj; vacation OiiDER : During sittings of courts To stop seizure and sale on petition to revoke judgment And on opposition in case of immoveables To force aoors, etc To stay proceedings on venditioni exponas For folle ench^e For imprisonment For capias where claim is unliquidated For attachment in similar cases . . OllIOINAL : Exhibits need not be filed until articulations of facts . . Supplying loss of vUT. mi mi m\ r.f)3 mvi cm (ir.r, lOHH 110.1 m\ ()f.8 !»;<2 !)57 (if.!) •.»3'2 (ir,!) i)r,7 liCil (•.(12 C.Cl 71H 7lH 7'.J() 7-Jl 7'-'2 7-2;{ 717 ids 7r.:i 7r)4 !»<)() 1 5-8 .■.07 Onl m\) . f.()4 ('.!»n 7H7 HOI I 835 \ 100 I i2r>3 ! INDEX. 877 Mix. PMIK, ned aH oppoHitiona uaBoH who fllcB an uiihuc. to pixjsitioiis to sale of venditioni exponui' ioni expon(ti'—o\ce\i- .houotary 01'^ K5'i (i5'2 (if):* ") lOHH iio;» (i.-i? ;V2 1157 1 (in!) 9H'2 ()r>ii »ri7 ))(>() Olil l>(i>2 lie iH filed ; iont; vacation n to revoke judgment (veableB xponaa luted . . ticulationa of facts . (UVl 71H 71H 7;'.o 7-il 7'J'2 7->;5 717 <.t:)H 7.-i:i 7r.i iKIO : 1 5-8 .".1)7 C.nl r.Ci'.t I f)(U I C.ttO 787 1 801 , 835 I 100 ! 125-2 ;i77 ■.m ■M, •.m :wi; I'llO !)8il :iH7 5n:, r,;t7 IWll :m Ml :\'M) :.;t,-, } :}!io ': MHO U'JO Wl 3!l'2 120 ■120 121 422 122 422 4:i;i ■.:i7 4;(() 4H7 r)")i; 13 11) ■m ■m I 336 31)2 401 451 471 4116 84 088 Onm\H\h~('ontiniied, Obtaininn communication of {nee Inspection or Docu- Mi^SIh) .. .. ,, Htriking of {tee Jriiv) I'AIII.IAMRNT : Horvico of Members cannot bo macio in I'ahhdnaokh : Jiirisdiotion of C. C. In suits for aHHosumcnts to buildl and repair . . . . . . . . , . , J l'AIlTIi;UI,AUH : I Declaration must contain Pahtition : Compulsory {xec Licitation) Of Township Lands— who may demand, Petition sufft-l oient . . . . . . . . . , , , , , Jurisdiction Orders for co-tenants to appear and advertiHonunit liitiirvention of co-temmts -joinder of iwHues . . .liKlt^mcnt bindiii}^ uj)()n all parties Uuferenco to arbitrators — proceeding's thereon (\)St8 . . . . • . . rATKHNITY : C(jmmis8ioners' Courts liave no jurisdiction in actions of j I'AiJi'Kius, In Fouma {»ee In Fouma PAri'KUiH) . . . . j I'avmknt : I Of moneys levied where no oppositions are filed in seizures of moveables , . Ill seizure of immoveables After jud({ment of distribution Tender and— (K«'e Tendeii) Peaci; : Justices of the Penalty : {'annot bo sued for in/orma pauperiH . . 'M\ V. c. '20 Nor in Commissioners Court Pensions : Exempt from seizure PEnKMPTION : Wiion suits are perempted Wiien not A^i'inst whom it takes place How obtained How covered . . Effect of Costs Of oppositions In Appeal Peiikmi'touy Exckption {see Exceptions) Peuemptory Writ : Of mandamus {see Mandamus) Personal Actions : Venue Execution {see Execution) art. l'24fi f 8ft2 ■( Ht;7 71 1058 CO 0111 ltl2 1)13 1)14 015 910 017 1)18 1189 81 001 723 757 588 121G 1189 f028 "(558 ,. 454 , , 455 45(5 , , 457 458 , , 4»1) 460 , , 588 1108 13G 1025 34-8 551 I'ACtX. 087 234 285 C4 590 47 431 530 530 530 530 531 531 531 000 32 353 422 437 310 072 33 001) 308 831 261 263 208 203 204 267 267 348 650 116 568 34 312 878 INDEX. M Petition : To revise judgment by default Form Affidavit necessary Is a defence to suit Procedure To revoke judgments obtained by fraud Delay for filing Does not stay execution without judge's order Same attorney may represent party Judgment, effects of For resale for false bidding (see Exkcution) For writ of possession For vacating sale by sheriff To revoke judgment homologating a report of distri- bution For discharge of debtor after abandonment of property For alimentary allowance by party imprisoned To discJiargc person imprisoned » To quash capias Immediate return of writ Contestation Appeal Of wife to be allowed to sue for separation from bed and board For sale of immoveables where owner is uncertain Where price is not paid . . . . 33 V. c. IG For partition of township lands For mandamus For injunction . . . . . . 41 V. c. 14, s. Of Right 4GV. C.27, When obtainable Form of petition Affidavit Fiat Production of exhibits Deposit re 1110 or.> f^J INDEX. 879 AUT. 1111 1112 1111 1113 PAOE. 613 613 613 613 jmmon Boccafio are Petitory Actions — continued. Beview Judgment — writ of poBsession Appeal Pilots : Jurisdiction of Trinity House as to wages of . . . . 1218 i 673 Pleadings : No particnh r form required Court may allow subsequent Delay to file .... Incompatible or contradictory Amendment of . . . . . . . . Delays after amendments Judge may extend delays Copy to be served on adverse party of all. . Pleas : Preliminary {xee Exceptions) To merits— demE,nd of Before answsring preliminary pleas . . If tiled witl' preliminary pleadings, proof takes place on .ill issues . . May be renewed it exception be maintained in such case . . Grounds of Delay for tiling . . In the Circuit Court, appealable . . Non-appealable . . Answering . In the Circuit Court, appealable . . Subsequent pleadings Where warrantors are to be called in . . Foreclosure Order of court sometimes necessary to obtain acte of No particular form required . . Party must choose between incompatible pleas . . Demurrer Amendment, after proof, of . . In actions between lessors and lessees Against corporations illegally formed Possession : Writ of, on refusal of party to surrender immoveable Proceedings thereon . . In petitory and possessory actions Of effects revendicated Where lands are sold for non-payment of price, 33 V.c. 16 On Petition of Right ' 20 23 (Ui 132 148 145 f 110 87 ( 139 130 146 137 ( 53 117 51 95 320 .420 213 246 142, 1.32 141 131 462 268 107 85 137 126 131 113 1.32 114 133 115 136 116 187 126 1070 601 10"7-'J 138 128 1070 601 189 130 134 115 140 131 141 131 144 132 146 137 147 138 ;!20 213 8 INDEX. 881 A lRT. 1 PAGE. 1 ition " 1 327 ' 710 ;-l28 1 7U) ] 329 ; 710 . ■ • .330 ' 710 • . . . I ■ L337 ' 712 046 542 017 543 ^ , 048 1 543 .ownship lands, («<•«! 1 " * 1107 , i)12 120 i 1)8 ici ; ir.c ** 184 j 102 194 i ii;i . 444 1 357 340 222 ^w ..■*..48"V. C.21 303 107 85 (259 105 4 262 i lllll (268 I IDS 805 i 473 1 . . 275 ': 201 80 i 75 1 145 : 131 equired .. 276 : 202 levied by execution 602 ' 351 ion) . . (;22 ■ 3IU 275 • 201 1 1 1178 \ <')55 . •Al'w.c.'i •,i 2% 1170 : I't'iO int? f;iven . • only and judgmeii t ' . 1180 ; tllV2 Xged .. 36 of . . 1181 i li(12 . 1182 ; (Hi;; . 1360 72:i . ■• 21 23 . 550 322 DIl ' ' . 559 33i ■ • • ' . 560 332 . . . 561 334 . • • • . 570 , 337 • • " r 64 335 l>nocEB-\EimjLL— Continued. \ Of seizure of immoveables . . . _ j Unnecessary in some cases . . . , '' * ' | In attachment before judgment . . , . . , 'I Of property sequestrated Prohibition : " j Writ— application for — execution of . . . . . . ! General provisions— appeal . . , . ' * ' j Delay upon service . . . . . , . , _ ' . PuoMissoiiY Note {see Bill of ExcHAiOE) | PiiooF : : Before arbitrators, accountants, Ac. Commissaire-enquetcur Commissioners S. C. by consent Protlionotary Viewers, experts Jury By commission rogatoiro Stenography Of consorts Deaf-mutes . . Bailiff '/ho served writ. . Doesnot avail party examined— nuiy be used against luni Extraordinary investigation .'. . . . . Of witnesses {ccc Witnesses) Must be in writing, otherwise no appeal will lie Failure of party bound, to proci'ed Rooms assigned for taking Judge takes notes if required Objections to Prothonotary may preside sometimes Objections noted in such cases Admissions taken down Inscription In Circuit Court . . For proof and hearing : In Circuit Court . . Postponement In Commissioners' Court . . In suits between lessors and lessees Couvjerning corporations For sopaTOtion of property By default or c.r parte Affecting corporations On all issues where pleas to tlio merits are tiled preliminary exceptions Anicudnient of j)leadings to agree with . . In the C'ircuit Court, appealable May be had on e\ery day in term Inscri])tions, in contested suits, are Tor proof linal hearing Notice thei-eof Procedure of examination of witnesses 5() F. c. c. r, I MiT. I PAOE. with and ('38 ; 375 641 1 377 849 500 878 516 ]o;ii 577 1033 579 7.'l 65 340-1 222 300 1!08 239 184 2S5 205 335 221 397 241 ! 307 210 898 211 252 193 261 195 262 196 •251 192 ;-:2i 215 :-:36 183 1142 638 1283 204 ' ',299 208 286 205 265 197 ; l263 196 ■,290 206 : 284 204 284 204 266 198 i 234 181 3071 602 243 196 . 1075 603 216 170 . 1209 671 i 896 522 1003 560 970 553 i ;us i 213 ! 1003 ! 560 132 114 ; 320 i 213 1 1071 002 1071 1 602 1 1072 ' 602 1073 60J i 1074 : 602 882 IMiKX. ProoF — continued. Ill the Circuit Court — continued. Before clerk, examiner, Ac, by consent J'^xpenses to witnesses Preuve avant /aire droit In another circuit Non-appealable {See Witness, — Evidenci:.) PropERTY : Abandonment of (nee Aiiandonment) Separation of (see Sepabation) Sale of minors' I'hOTEST : Of bill, note, denial of PUOTHONOTARY : May administer oath Draws up judgment on confession .And in default and e.r parte cases May receive applications for security for coats . . May preside at thf ta,king of proof in contested cases May perform duties of judge in vacation during hid absence Cannot give judgment or orders (except in default cases) unless adverse party be notified Orders may be revised by judge . . i-ierves writs when sheriff and coroner are interested May adjourn court . . May give orders to force doors, &c. Or to pay moneys to seizing creditors Must keep register of all returns of writs of execution And a roll for enqufites In non-contentious proceedings has the same power as a judge PnovisiONAL Possession {nee Possession) Pdblication {nee Advektisement) Public Office : Usurpation of, {nee Usurpation) Public Offichu : Notice of I' ction for damages to Venue of trial by jury in such suits Mandamus may issue against PnncHASEU ()i(fe Execution) Quaker : May make affirmation {nee Oath) . . Queen's Bench {nee Appeal) Questions : To witness on voir dire Leading.. Witness may object to certain Quorum : In appeal Quo Warranto {nee Usurpation) . . art. iPAGE. i075 1076 1077 1078 1101 I 763 972 1267 30 94 ! 92 ! 120 : 603 603 603 603 609 440 552 692 146 i 134 31 7!) 79 98 284 : 204 465 I 270 465 270 465 270 4()7 271 409 272 569 336 723 •122 718 420 237 183 1339 712 1327' 710 572 338 lOlC) 5li3 22 24 S.Ki 2;i0 1022 Ol'iii (;7i 397 ( 30 31 "( 255 1!),) 1114 014 (259 lOo - '^62 IDii 2158 198 270 19!) 274 200 1150 647 1010 503 INDEX. 888 ART. P\OE. onsent 1015 603 1076 003 1077 1078 1101 603 603 609 703 , 440 972 552 1207 I 692 145 i 134 ' for coata . . 1 contested cases acation during hid apt in default oases; er are interested . . :s . . • • . • , writs of execution. . , the same power asl 30 94 92 120 284 31 79 79 98 204 465 270 405 405 4()7 409 509 723 718 237 270 270 271 272 336 •122 120 183 133') 712 1327', 7iO 572 : 338 1010 : 22 ' 1022 j 074 : ( 30 I ■■(255 I 1114 1 I (259 I \'ZG2 I (208 ! 270 i ^^^' : 1150 I , 1 1016 ! 51)3 24 230 505 397 81 m 614 105 1% 198 19!) 200 647 563 Rafts : Execution against absentee defendant for wages due employees on .. RvTiyiCATioN OF TiTLE (see Confirmation op Titlk) . . llKAii Actions : Venue . . Execution Reasons op Appeal (see Appeal) Recaption (see Attachment for Re :jt) . . Rkcobd : Transmission from place to place . . In Circuit Court To Court of Review Return To Court of Appeals Return Where commissioners are recused . . Where judf»e is recused . . r.estoration of missing . . . . . . . . ' . , Proceedings before a judge, in non -contentious proceed ings, form part of Recorder's Court : Jurisdiction Rkcusation : Grounds for . . Judge disqualified if interested Case where judge recused cannot I'efusa to r>it . Judge cannot sit after maintenance of . . Judge must declare any existing grounds of And 80 must party who is aware of any Delays in case of ]\Iay bo filed at any stage . . Procedure No special power of attorney required from absentee . Where the sole judge is I'ecused — remission of record . Whore recusing party has no proof to adduce . . Maintenance thereof . . . . .... Whore case has been carried to court of another district Dismissal thereof Party may ronoiuice right to Of experts Grounds for Of arbitrators In appeal In Commissioners' Court . . 1{kff,ri-,E3 : Advocites may be named in certain cases Iloplajemont of To b J sworn Trii'l before May appoint clerk Prcceedinga to bo filed in court Form of Report Contents Homologation art. PAQE. 552 322 949 644 37-41 40 549 ' 321 U33 ! 636 873 612 25 27 107» 603 498 302 502 301 1126 631 ; 1x70 053 1187 60 1 185 102 102 84 1338 7! 2 1217 673 170 1.59 . 177 101 1 178 101 ■ ( nil 103 . 187 102 . 179 161 . 180 101 . 181 101 . 182 101 . 183 162 . 184 102 . 185 102 . 186 102 . 187 102 t 188 ' 103 . 189 ] 03 . 190 103 326 210 327 217 . 1349 718 . 1157 647 . 1185 ()04 . 343a 221 . 343b 221 . 343c 224 . 343d 224 . 343d 224 . 343e 224 . 343f 225 .. 343g 225 .. 343i 225 ifcan 884 INDEX. BxFEBEBS — continued. Ui^bt of Review and appeal . . Court of ax^peal may enquire into the merits Beoisteb : Of returns of writs of exocution Of decrees of Her Majesty's Privy Council Of civil status: preparation, attestation Binding of duplicate OllRcers bound to fulfil their duties under penalty Petition to rectify register Summons of party interested Inscription of rectifying judgments in register Of registry offices : authentication Of sheriffs and coroners : of deeds of sale, deposit of Authentication thereof Reoistkau : After forced sales sheriff obtains a certificate of hypo thecs from Case where it cannot be obtained heforo day of return . Meaiiing of word "Hypothec" Form and ))urport of certificate Where hooks do not give requisite information, duty of Form of certificate in such case Where property was incUided in some otl "r division Governor may change form of certificate. . Second certificate not required in case of JoUe envJih'e Cost of certificate retained . . Contestation of certificate . . Is an ofi'icer of the court Shall keep a ret^ister for the addresses of iiypothecary creditors . . . . . . . . . . 43-4 V. c. 25 Certificate in cases of confirmation of title Authentication of registers . . Rboistkau's CEUTincAXK (see Reoistrab) Removal : Of seals {see Seals) Rent : Attachment for {nee Attachment) . . Lessor may not oppose seizure and sale but must file claim for payment Bents : Seizure of constituted Sale not stayed by opposition fov certain Opnositions to sale of Collocation of claims for Execiuion in the Circuit Courts for certain Appeal to *'>. .13. '.'.< matters concerning . . To P. C Renuniiiation : Of community by wife should be registered Repoiit : Of diKtributitiu {.-u'e ICx?;ci'tion) Of experts (^r(' l'.:a'rire . . 704 i 4i;i , , 705 i 413 738 ! 428 740 ' 42y (SCB of hvpothecaryl . . 4ij-4 V. 0. 25 ; 381 )£ title .. ..1 %5 o4i) ..' 1242 6HC, ..1 607 1 405 1 1*292 702 87b ! 512 I sale but must fil< 3 i . 582 342 632 372 irtain •• • i ^'^O 37ti . ()52 38;-. . 733- I 427 certain . 1102 GO',) ing . 114'. (.38 . 117t ( (ifw gistorbd . 98( ) sna . 724 1 4'2'2 . 330 1 -iii ! . . 31 1 'i'i'i RK'.'iUiiE D'Insxance : Case cannot be retarded when ready for judgment by change of status of parties When a case is said to be ready for judgment Attorney bound to notify adverse party of lijs client death or change of status Proceedings subsequent to notice are null Suspension of suit till parties are called in to take u\ the instance Who may file . . How effected and contested . . If not contested If not filed Effect thereof . . On contestation In appeal REQuexE Civile {nee Petition) . . Hesale Foii False Biudinq (nee Exkcution) I'f.si'ondent : Appearance (see Appeal) Keturn : Of summons, must be made on day fixed How efffeoted Certificate of service accompanies . . Contents tiiereof How contested . . Amendment of . . ConijJ dtH'aut in default of Of Commission Rogatoiru Of ]'tmire fucias Of moneys levied on execution of moveables or oppositions in cases of natKie mobiliere And of sail 'e immobiliere Of oppositions for payment Of writs of ex cution Register thereof In the Circuit Court . . . . Nulla Bona Of capias may be ordered immediately . . Of mandamus Of injunctions .. .. .. 41V. o. 14, s. Of habeas corpus Of writ? of appeal Ei:x\KNi)iOATioN (;«'<' Attachmem) Eevknue : Suits niay be brought in the ('. C. for riums due Evocation thereof .... Review : May be had before three judges in certain cases ,iudge who sat in Court below cannot sit in Where had Deposit, delay for making . . luscniition, notice aut. page. j434 253 ( 468 272 435 264 436 254 437 254 437 254 438 254 439 256 440 266 441 256 442 256 547 320 1166 649 505 305 690 401 1128 632 81 70 76 66 77 66 78 66 ' 79 68 (159 154 ( 80 70 "( 159 154 82 71 313- 16 212 375-7 237 601 353 585 346 655 386 652 385 (597 405 718 420 1088 606 697 405 820 481 1026 569 570 1042 587 1121 623 866 507 1054 691 1058 595 494 295 495 299 49(5 299 497 299 498 B03 886 TNDRX. Review — continued. Prothonotary to place cause on the roll . . Transmission of record Stays execution Hearing.. Judgment, return of record . . Judgment in the absence of two judges . . Re-hearing unnecessary sometimes Judge removed to another court may render judgment..^ Of decisions in capias, . In Circuit Court In actions for the illegal detention of townshii lauds In certiorari not allowed In non-contentious proccedingB Revision : Of orders by prothonotary in vacation . . Of taxation of costs . . Of costH of sale Of judginouts by default (see Petition) Revocation of judgments (see Petition) Rri-E : To answer y'd/V-s et articles (see Faits et Auticlek) . Decisory oath Oath put by court For coercive imprisonment .. Ruli;h of Puactick : How promulgated In appeal In Circuit Court Additional rules in appeal Saouenay : : I'lxceptional provisions for ., .. .. .. -. I Appeal from Saisie Ahukt : Sivtple (see Attachmknt) /'.'»( W(i /«//<'>•(■(> (.sec (taunihhment) Haisie (iA(ii:uiE (m'l' Attaoiimext) Saisie-Revenduatiun (kcc Attachment) . . Salaky : ' Seizure of public officers' . . . . . . 38 \ . c. 12' Sale : '; Suspended by opposition to judgment Of moveables — notice to guardian and defendant Publication thereof III oc'-tain cities . . Held at proper time and place Cannot be had after return-day Guardian must produce effects at Seizing officers may not bid or purchase Minutes thereof . . Adjudication, payment Extortioii by oiiticer May v.o'u proceed beyond amount requin d, cider of sale aht. r>oi 4!)8 4!)!) GOO 602 502 rm rm 823 lOOl nil 1234 1340 405 470 COO 4h3 oOo 222 •144 410 7H1 20 1177 1051) 1 27 1117 ()12 8r,r, H7:{ StiO 488 571 572 573 58!) 58!) 5!I0 5!»1 r>!)2 503 594 PAdK. 303 302 303 303 304 301 30") 30.-) 482 COT 013 ()H1 713 270 28(i •ir>'2 200 305 173 418 31) 7()1 13 9.S 0211 m 294 3:J8 .s;w ;i;)9 348 3-lS 31s 34S 34;^ 340 349 34!) ^-^fl^: INDEX. 887 all ;ea ; ^ render judf^ment.. ntion of township ton )N) 8 ET AiniCLEs) .. 38 \. c. JUt and defendant at purc]ia;:e int requirul, oidcr of AUT. PAdK. 501 303 4»8 302 49'J 303 500 303 602 304 602 304 5o;j 305 501 305 823 1 482 lO'.H COT nil 618 1234 (irtl 1340 713 4f)5 270 47!) 2w; 000 3r,'J 483 2',I0 505 m> 222 173 444 257 441) -m 781 448 20 30 1177 r,5;i 105U 5',i"i Tni i 1 i;; 27 '^ .' 1117 0211 . 012 357 . 855 504 . 873 511! . 800 507 2\ 3till . 1 4J-8 2!)4 ; 571 338 . 572 338 . 573 339 . 58',) 34f> .; 5W) ^ 348 . ' 5i)0 348 5'.)1 : 348 5<.)2 348 ., 603 : 34'.i .. 5 94 : 349 595 1 349 Salb — continued. Of vioveableH — continued. Discharge of guardian l>efault and condemnation of guardian Effects thereof . . Procedure where shares, etc., are sold . . . . i St.'iyinij; of 34 V. c. 4! Annulling Taxation of costs . , . . . . . . . . i Payment of moneys levied in the absence of anyi oi)p()8ition . . . . . . . . . . . . I Bclouj^ini; to ii succession Of inimovoiibiea. suspended by judge's order — Oppo sitions lOffects thereof . . Grounds ft ir vacating .. .. .. .. ..i Aiiplication therefor . . . , , . . . | Delays . . . . . . . . . . . . ! Fiiu.r eiic lifrinxour inH,y uri-u nullity thereof ..{ W hove the price has not been paid .. 3:1 V. c. 10 Whi-ro the ownor is unknown Of proi)erty belonging to a corporation in lirjuidation . . Of property belonging to minors, Ac. Place of . . . . HcHDOT, Taxks : Jurisdiction of C. C. No appeal SciuE Facias : For the annulling of Letters-Patent (.see LETTEits-PArrAT) Seals : Affixing of, in what cases Appointment of Commissioner ^Vho may demand Minutes of Commissioner Modun operandi Discovery of will Forcing of doors Opposition- Mention thereof Hearing sunnnarily Decision thereon Mention in minutes of jiidge'a orders Absence of moveables stated . . . . Deposit in Court of minutes . . Second aflixing when allowed — method Removal of : Applications heard summarily Where afttxing is declared null, order to remove is given Non-compliance with Where seals have been twice affixed Where seals are affixed before burial Wlio may demand Petition —Notice Order for inventory Appointment of tutors, tic. ABT. 690 597 698 698 699 000 001 1312 PAOK. 840 349 362 362 892 852 362 363 7p7 716 419 700 414 714 417 716 419 710 420 717 420 1 528 '.100 ! 623 ,M12 1 502 1207 ' ()92 peuty : Capias may issue for And attachment SrecriiiTY : l''oi' coats (see Costs) . . Delay must bo fixed in judf^mont orderinj,' How sureties are offered Meat ling of word May be required to justify . . Objections to sureties Decision thereon Acceptance 111 ap])eal Reduction of From ("ircuit Cciiirt Hufficiency In action for tlio illegal dftention of township lands Court may reyulate renewal, Ac , of . . To the Privy (Council For costs of improbation in ("ommiB8i( lers' Court SKDCCTrn.s : Oominissioners' Courts have no jurisdiction in actions for BKi(*MnMAu Rents : Actions for recovery of . . . . ;{2 V. c. 30, 8. J'.'xpcntions for Oppositions for Effect of judicial sale on Seizhkk : Of moveables (see ExEcrTioN) Of immoveables (see lixEcuTioN) Of salaries of public Larvants (.tec Garnibumbnt) 38 V c. 12 In the hands of third parties {see Garnishment) Sei'Aration : Betweeen consorts Of property ~Anthoriza.tion of judfjo Jurisdiction Summons Notice in newspapers . . Intervention of creditors Confession of judgment not admitted Judgment, reprises, nomination of experts. Execution thereof Wife may accept or renource community . ART. 1300 1801 1802 1303 1837 79N , 881 I PAO«, 7o;t 701 701 701 712 4.'.-. •Ih',) 12t 10.; Till ;iii 5ir, .'HI 515 ;iii 51C. 311 517 3n 51S :ir^ 5 lit HI.! 1124 ti2"i 1131 (ili- 1143 1200 (li'ili 1189 ()(i« (106 1087 (lO.i 059 ;i<)0 710 115 556 325 C32 :;72 36(1 612 357 972 552 973 552 974 552 974 552 975 553 976 653 977 553 978 553 979 653 INDKX. 889 ART. PAQB. 1300 70;! • • 1801 H)\ • • 1802 701 •ties, liow diHpoBed . . 1303 704 .. 1837 712 798 4o,1 834 1 4k:i 12! 1 l(K, deriiif,' 514 i 111! 515 311 615 ;ui 510 311 .. 517 m ..■ 5Ui :nj .. 519 Hi: .. 1124 tl'i-. .. 1131 ! r.r, ..1143 ' (i40 .. 1115 1 fUJ tention of townahipj ' 1113 , .;i;^ ■c , of . . 1177 ' f.54 1179 : Clio CommiBBic lers' . . 1200 ' (;r,:i risdiction in ftctions 1 1 1189 : m; 1 32 V. c. 30, B. 4 1 (;o6 . . 1087 (',05 059 3i)0 • • • ' 710 ; 413 555 ' 325 032 :;72 r aknibhment) . . • • 612 357 '.! '.'. "•! 972 552 .. 973 i 552 •• '•>7'1 ! •'55:> " . 974 552 . 975 553 Imitted . 976 553 »n of experts.. . 977 . 978 553 553 community .. • . 91 9 553 Skpauati'N iiiiitiiiucd. 0/ iiropcrty — coittiuucd, l{e>jlstriitir)n of icuunciatinn, imd of (IccliinUioii \i\ tMSo oi murchaiiile piihliqiic .. ., i Investment of proceeds of niovoablcH . . , ' ! If liUHhtmd j^ives real pr()))orty as r<'prin,> to wife sliiji uiwht obtain a contlrnuition of title . . . . I Execution for amount due wife From lied and hoard — Authorization of jud^'o . . . . Service of petition for . . . . . . , , J Attachment may issue . . . . . . . , , . 1 Trial — Jud^jnient . j {See HrsnAND and Wife) SKl^t'KBTKATION" : Hesultinj; from seizure by garnishnui,; Where sale of immoveables is retai'l'v I • i.. In attachments by revendication . . I'ltition and order Appointment of sequestrator Hwearinti— mis un possession Hale of perishable Roods Lease of rij^ht of enjoyment Who may not become lessee Authorization required to mako I'epuirs .. Duties, oblij;al,ions, account, placing of nioneys for investment I)i8chiUf.;o I'ixecution of orders iiiiiin,' i\\ Where one party violently then of , the other party possession . . Skiuikant ok Mimtfa: I\Iay act as bailiff in the Connnissionora' Courts ]?ut not as attorney . . Skumknt Dkcisoike {»ee Deiisoiiy Oatu) JCDICIAIllK Seuvick : Of summons (»ee Sdmmons) . . SubjMrna [xee Witness) Venire facias (nee Juavj Faits et articles (»ee Faith et Auticleh) . . Out of district of papers, &c. In Circuit Court. . Of every written proceeding in a case retjuiiud How efl'ected where sheriff is interested . . Of judgments, when required Of tierce oppositions Of oppositions. . To marriage Of seizure by garnishment . . Of petition for folle-eiicli^re . . Of attachment before jud, And publish at church doors if seizui'e was made in a parish . . When he may stay the sale Return of oppositions to Court And writ . Continues publications notwithstanding opposition But cannot sell — exceptions . . ART. 1148 1228 1043 17 565 5(56 598 i2(;7 1335 169 466-7 548 545 550 655 555 559 560 559 562 663 563 569 585 591 592 594 598 601 634 634 635 037 640 642 642 ()43 614 (i47 648 650 651 652 655 653 653 INDEX. 891 ART. PAOE. 33 V. c. lienated without order tie is interested ;e writs to on by . . . . eased to cf in certain cases nis lo expenses sale jale of shaves . . or or return them Idressed to (fficers in certain cases specify his immove- in rents )veable twice . . icoiid writ against the !und seizor if the first of funds •tain expenses . . y creditors, 43-4 V. c. 25 i if seizure was made rt thstanding opposition 1148 643 1228 679 1043 587 17 44 565 335 566 336 598 352 1267 692 1335 711 159 154 4(56-7 271 548 321 545 1 31!) 550 322 555 325 555 : 325 559 ! 332 660 : 332 559 332 5()2 334 563 i 335 5(53 336 5()9 ; 336 585 346 591 348 592 348 594 349 598 352 601 1 353 634 374 634 374 635 374 C37 374 640 376 642 377 642 377 643 378 644 378 647 379 648 379 381 650 383 ()51 384 652 385 655 386 653 386 653 386 the Hst Sheriff — continued. Seizure of immoveables— continued. Delivery of oppositions to Proceedings after decision on oppositions Venditioni exponas Contents thereof . . Notices thereunder. . May receive bids in writing prior to sale How such bids are made May require deposit therewith Form of bid Endorses (ind returns bid Furnishes officers presiding at the sale witl thereof Where the sale should take place Not on Sunday Proceedings on day of sale ^. Declaration of bidder . . Conditions of sale Who may not bid Verbal bids by proxy . . Deposit may be required with bid . . Or dispensed with Bid without deposit disregarded Refund of all deposits except purchtiser's Duration of bidding Adjudication to highest bidder Proceedings after sale : Bidder by proxy must declare name of principal Purchaser must pay price When he may retain it . . .... Deed of sale — contents Return of writ Certificate of hypothecs from registrar Where certificate cannot be had before day Form and purport of certificate Certificates from rcgistrai-s of otiier divisions which property has been included, requisite Second certificate not reo 47 54 53 56 54 55 63 71 64 57 55 58 66 59 56 60 56 61 56 62 57 63 57 64 58 65 i 59 66 ; 69 (57 59 68 60 i '' 69 62 481 i 288 70 I 64 466-7 1 271 74 1 65 72 ! 64 372 ; 236 248 ■ 190 894 INDEX. SuHHONB — continued. Delay upon In the C. C In actions between lessors and lessees In the Commissioners' Court Return By Bailiff Contestation thereof Amendment Default of return In actions between lessors and lessees And consorts . . Against corporations illegally formed 111 thi) Circuit Court . . In tho Commissioners' Court Writ Service In noa-contentious proceedings Sunday (S'te Non-Jdridical Day) . . Sureties : Putting in (««e Security) Of uefendant arrested under capias Must justify May surrender defendant May obtain assistance if they apprehend rcsistcnco In attachments before judgment . . In appeal {tee Security) Surrender : Voluntary execution of a judgment by Of an hypothecated immoveable . . Appointment of a curator Power and duties of Befusal to Of debtor by sureties in capias Surveyor : Appointment to fix boundaries Tales: In jury trials (nee Jury) Tariff of Fees : How promulgated In appeal Taxation or Costs . . Bevision thereof Does not suspend execution . . Of costs of forced sale Of witnesses Execution therefor When summoned from beyond district Of party answering falls st article» Execution therefor Of garnishee . . Execution therefor In appeal ART. PAOI. 75 65 1066 600 890 521 1194 668 76 ec, 78 60 f 79 68 ] W.) \H ( 80 70 (ICO 154 82 71 890 521 971 662 998 559 1065 698 1194 668 1195 668 1196 668 1337 712 2 16 514 311 824 483 827 48(i 831 488 883 480 8r,3 602 1125 031 534 315 535 316 535 310 637 310 549 321 831 488 942 541 391 240 29 30 1177 653 479 280 479 286 479 280 600 362 280 203 281 203 480 287 233 180 233 180 620 368 620 363 1175 1 652 INDEX. 895 ABT. 1 PAai. 75 66 !! 1066 600 essees 890 621 1194 668 ^ , 70 60 • • 78 60 79 08 • • • • • • ■ lf)9 lf.4 80 70 , • • • • • • (159 154 • • • • 82 71 es 890 521 974 552 3d .! 998 559 1065 598 ! ! 1194 668 , , 1195 668 ' 1196 608 ^ , 1337 712 2 15 514 311 . • • 824 48H . . 827 48(i !! ■ . 831 488 apprehend rcsiatence 833 im 853 502 1125 031 by .. .. 534 535 315 31(5 535 310 537 310 549 321 . 831 488 > • • • • * 942 541 • • • • * * 391 240 29 30 * 1177 653 479 280 ■ • 479 286 479 280 000 352 " 280 203 281 203 district . 480 287 233 180 ■ ■ 233 180 , • • • • • • . 620 363 . 620 1 363 '.'. '. . 1175 1 652 ABT. PAOI. 638 816 689 316 540 317 541 317 542 317 643 317 644 818 f 47 (187 Tender : > Must describe object or moneys offerd . . Form of May be made at domicile elect Answer of party must appear in document recording . May be renewed by pleadings and deposit Withdrawal of moneys paid into court Expenses — costs Tebm-Dayb : What shall be . . Thbee Eivebs : Banlieueof lasg TiEBs Saisi (see Garnishment). Title : Confirmation of {see Confibmation of Title) . . . . 949 Township Lands : Held in free and common soccage, partition of {see Lici tation) 912 Tb-inscbipt : On appeal to be sent to Q. B 1126 Trial : When it may take place 220 Postponement of 216 By Jury {itee Juuy) 348 Tbinity H008E : Its jurisdiction 1218 Tutor : Coercive imprisonment against 783 In cases of licitation i 921 Appointment. Family Council 1256 Voluntary licitation between minor and 1278 At removal of seals 1299 General provisions 1337 (.See Curator.) Usurpation of Office : Delay on summons for . . 75 Who may bring complaint 1016 In what cases . . . . . . . . . . . . 1016 Writ. Formalities 1017 Purport of petition. May claim olhce 1018 Maintenance of complaint. Judgment . . . . . . 1019 Dismissal thereof. Costs '. . . 1020 Proceedings on judgment declaring party entitled to office . . . . . . . . . . . . . . 1021 Resistance to judgment 1021 Vacant Successions {see Successions) 1331 Vacating Sales by Shebiff (see Sale) 714 Vacation — Long {see Lonq Vacation) 1 Validation : Of certain sheri£f sales 42-3 V. c. 24 Venditioni Exponas : When issued Purport of . . . . . . Suspension of sale under 662 663 664 723 ^44 630 631 171 170 227 673 460 532 689 697 703 712 65 663 663 663 664 666 665 565 565 711 417 13 375 391 391 892 896 INDEX. Venditioni Exponas — continued. ART. PAGE. Where a resale is had for false bidding, writ must bo in the nature of BOB 405 Venire Facias {tee Jonv) 872 oM\ Vencb (we Jurisdiction) 84 84 Verdict (see Jury) 418 245 Vessel : Seizure of mo 832 Viewers (see Experts) 822 215 (259 2B2 105 Voir Dire (see Witness) 19li (208 198 VOLDNTARY EXECOTION {»ee ExErOTION) . . 514 311 Surrender (see Surrender) . . . fiiU 31.-) Vouchers : Accompany account 622 3i;j W\f»Es : Proportion seizable . .44-.'> V. c. 18 .SHI Not yet due are not seizable 558 3:ii May be sued for by minor in Comtniasioners' Conrt . . U93 Oils By mariner before justices 1216 072 Warrant : Of arrest (see Capias) 812 47(5 Of attachment (see Attachment) iA2 498 Warrantors : Calling in of 120-2 98 Delay for 123 105 Demand must be special . . 124 105 Warranty : Simple or personal 125 106 Real 126 10(5 Wife (see Husband and Wife). Witness : Competency 252 193 Deaf mutes 261 195 Consorts 262 193 Party to suit may be 251 192 Incompetency : Bailiffs who served writ 262 19(5 Summoning : Subpoena— delay 244 189 Duces tecum 245 190 In prison 253 194 In Upper Canada . . . . 246-7 190 Serving . . 248 1!)0 Failure to attend— Punishment 249 191 Examination of witness about to depart 240 185 Swearing— Affirming 255 195 Change of form of oath 25(5 195 Administering oath (255 287 195 '20'i Refusal to be sworn 257 195 Punishment . . . . . . 277 202 Exclusion of other witnesses during 254 194 Cannot refuse to testify because expenses are not paid 258 ; 195 c. idiling, writ must bo "I ART. 606 872 84 418 560 322 (259 262 (208 514 fM 622 ..44.r>V. 0. 18 niasioners' (/ourt . , , , I 558 111)8 1216 ,' 812 ,i t..l2 apart uring use expenses are not 120-2 123 124 125 126 252 261 252 251 262 244 245 253 240-7 248 249 240 255 25(5 1255 1287 257 277 254 PAOE. 405 oM) 84 245 832 215 105 10(i 108 311 31.-) 313 3:u 3:ii OCiS 072 471? 408 08 105 105 106 106 193 195 193 192 lOfi 180 190 104 190 100 191 185 105 105 195 '20r, 105 202 194 258 : 195 INDKX. yfiTszna— continued. ' Hxamination of— continued. Any one present may be examined On voir dire In chief To be in writing Leading questions , ' Refusal to answer certain questions . . .. Punishment . . Cannot withdraw without permiHsion . ] Form of depositioii Objections to questions Marginal notes . . In ex parte cases . . Identification of objects Cross-examination In ex parte cases . . Re-examination Closing depositior< De novo Taxation of ox^ienses . Enforcement When summoned from beyond district Or from out of Province . . Several cases may proceed together Judge bound to take notes Evidence of witness does not benelit himself Impeaching evidence of one's iieinre commission rofiiitoire Swearing Prothonotary Jury Examination f/c Horo Experts, &c C'ommissaire Enqu<3teur Arbitrators Commissioner, S. C. by consent j 35 V. c. Stenography Ki V. c. 20 (47V.C.190 Required to forcing of doom, &c And to consent of creditor that bids be received without security And to certificate of registrar in oome cases 3Iay be examined on the contestation of report of dis- tribution Taxation 897 AIIT, PAOE. 250 192 260 195 267-8 198 (208 100 '270 199 1280 (292 , 206 1 207 286 i 188 270 199 274-5 200 277 i 202 278 ' 202 (264 ! 197 -;267 1 108 (28H 205 203 > 196 200-1 1 206 295 207 317 212 273 200 271 100 317 212 272 100 {!77 Injunction 41 V. c. 14 070 Of apiwal • f 1121 tl'J.'i Attachment for rent • . • . 878 r>i'2 In revendicution ■ • ■ 1 86« 507 By fjarnishment • • • • 856 501 Simple . . 884 48',) May be addressed to bailiff m V. c. 17 44 May issue without stamps in certain cases • • 407a 1 271 'rnos. jNIooiii: & Co., Printois, 20 Adelaide Street East, Toronto. ART. PAOIC. ion of , , , , m\ 208 BH , , , , 800 622 uninatiou . . . a 1074 602 , J , , , , 1070 6o;i , ^ , , , , 1101 60<) nioiiB ,. 1210 1209 797 671 671 I'ICUCS) , , , , 222 17:5 IN) .. 1 1 555 632 32:. 37'J II EXI'ONAH) , , 6 865 834 •>12 507 m ■m 33 V. 0.17 u n casoii •• •• 467a 271 slaide Street East, Toronto.