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6-7 EDWARD VII., A. 1907

Preamble.

Authority of the Justices in Matters of

Private Property taken away;

AN ORDINANCE FOR THE MORE EFFECTUAL ADMINISTRA
TION OF JUSTICE, AND FOR REGULATING THE COURTS
OF LAW IN THIS PROVINCE.1

66

Whereas it has been found by Experience, that the several Provisions contained in an Ordinance, bearing Date the Seventeenth Day of September One thousand, seven hundred and Sixty four, and intituled, amongst other Things, "An Ordinance for regulating and establishing the Courts of Judicature," by virtue of which certain Powers and Authorities are given to the Justices of the Peace for this Province, as well separately as collectively, to hear and determine in matters of private Property between Party and Party, instead of answering the good purposes for which they were ordained, have become an intolerable Burthen to the Subject, and proved the means of great Disquiet, Vexation, and Oppression.

It is therefore Ordained and declared, by His Excellency the Captain General, and Governor in Chief of this Province, by and with the Advice and Consent of the Council of the same, That from and after the day of the Date of the Publication of this Ordinance, all Jurisdiction, Power, and Authority in Matters of Private Property, belonging to or exercised by any Justice or Justices of the Peace for this Province, or any District, Part, or Member of the same, except Such as have already procured, or hereatfer may procure a Special Commission for that Purpose, under the Hand and Seal of the Governor, or Commander in Chief for the Time being, shall be clearly annulled, taken away, and determined; and that from and after the day of the Date of the Publication, aforesaid no Justice or Justices of the Peace, except as before excepted, shall have any Power or Aufor that Pur- thority to hear, examine or determine any Matter of Private Property between Party and Party, or to make, pronounce, or deliver any Judgment, Sentence, Örder, and Decree, or to do any Judicial Act whatsoever touching the same.

except from

Such as have a Special Commission

pose.

Clauses in the

Ordinance of
September

1764, repeal

ed;

And it is further Ordained and declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, the following Clauses or Parts of an Ordinance, bearing Date the Seventeenth day of September One thousand, seven hundred and sixty-four, and intituled, amongst other Things, "An Ordinance for regulating and establish"ing the Courts of Judicature" shall be repealed, and the same are hereby repealed and absolutely revoked and made void; that is to say, "And Whereas it is thought highly necessary for the Ease, Convenience, "and Happiness of all His Majesty's loving Subjects, that Justices of the "Peace should be appointed for the respective Districts of this Province, "with Power of determining Property of small Value in a summary way; "it is therefore further ordained and declared by the Authority aforesaid, " and full Power is hereby given and granted to any one of His Majesty's "Justices of the Peace within their respective Districts, to hear and finally "determine in all Causes or Matters of Property, not exceeding the Sum of

1 Canadian Archives, Q 62, p. 528. As indicated above (note 2 p. 276) acting Attorney General Kneller was required to draught an Ordinance based upon the Report of the Council on the subject of the administration of Law by the Justices of the Peace. This draught was read in Council, Jan. 10th, 1770, and referred to a committee consisting of H. T. Cramahé, Thos. Dunn, and Colin Drummond. On the 1st of February the committee reported the draught, with certain amendments, and the ordinance as amended was approved and adopted, and ordered to be translated into French. On February 14th the translation was read, and the ordinance and translation were ordered to be published in the Gazette. The ordinance when published gave great offense to the Magistrates in the District of Montreal, who, under the leadership of Charles Grant, a member of one of the leading British mercantile houses engaged in the Canadian trade, prepared a memorial in remonstrance. See Q 7, p. 95. This, Carleton in forwarding, attempts to answer. See Q7, p. 89. Among other protests entered was one by a French Magistrate, Pierre de Calvet, under the title, "Observations sur L'Ordonnance du 15 février dernier." See Q 7, p. 274.

SESSIONAL PAPER No. 18

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"Five Pounds Current Money of Quebec; and to any Two Justices of the "Peace within their respective Districts, to hear and finally determine, in "all Causes or Matters of Property not exceeding the Sum of Ten Pounds "said Currency; which Decisions being within, and not exceeding the "aforesaid Limitation, shall not be liable to an Appeal: And also full "Power is by the Authority aforesaid given and granted to any Three of "the said Justices of the Peace to be a Quorum, with Power of holding and all others Quarter Sessions in their respective Districts every Three Months, and also that give Auto hear and determine all Causes and Matter of Property which shall be thority to the above the sum of Ten Pounds, and not exceeding Thirty Pounds, Cur"rent Money of Quebec, with Liberty of Appeal to either Party to the Superior Court, or Court of King's Bench;" and all and every other Ordinance or Ordinances, and all and every Article, Clause or Sentence, in them and every of them, by which any Jurisdiction, Power, or Authority, to hear and determine in Matters of Private Property between Party and Party, is given, limited and Appointed to any Justice or Justices of the Peace, for so much as concerneth the same, shall also be repealed, and the same are hereby repealed, and absolutely revoked and made void.

Justices to determine Matters of private Pro

perty.

Penalty upon the Justices

for Disobedience.

Proviso not

to extend to

any of the Powers in the

the Peace;

And it is further ordained and Declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, if any Justice or Justices of the Peace, or any other Person whatsoever, shall offend or do anything contrary to the Purport, true Intent, and Meaning of this Ordinance, he or they so offending, besides being liable to answer the same in a Criminal way, Shall also forfeit and lose, unto the Party grieved by any Thing so done, his, her, or their treble Damages, which he, She, or they shall sustain and be put unto by means or Occasion of any Thing so done as aforesaid; the same to be recovered in any of the Courts of Record in this Province, by Action of Debt, or in any other way, and Manner, according to the known and Established Practice of the Court in which such Action shall be brought.

Provided always, That nothing contained in this Ordinance shall extend, or be construed to extend, to take away, determine, or abridge any of the Powers given and granted to any Justice or Justices of the Peace for this Commission of Province, by Virtue of His Majesty's Commission of the Peace to them directed, or to restrain or hinder them in the exercise of any other Powers to them limited and appointed by any other Ordinance or Ordinances, save and except such as relate to the Administration of Justice in Matters of private Property, between Party and Party only but such Justice or Justices of the Peace is and are hereby further authorized and required to do and execute all and every matter or Thing to him or them enjoined by Virtue of the said Commission of the Peace, and also to hear and determine all Penalties and Forfeitures arising from the Breach of any Ordinance or Ordinances, and to proceed therein in the same Manner as he or they would have done if this Ordinance had not been made.

nor to any

Judgment al ready pronounced and

And provided also, That nothing herein contained shall extend, or be construed to extend to reverse, alter, or suspend any Judgment or Judgments already pronounced or given by any Justice or Justices of the Peace, not executed; upon which no execution has yet been Awarded; or to supersede, vacate, nor to any alter, or suspend any Writ or Writs of Execution already awarded, and Writ of Execution already not yet returned; but the said Justice or Justices of the Peace is and are issued, and hereby further authorized and required to award Execution upon such not returned, Judgments already pronounced and given, and the Provost Marshal is hereby authorized and required to enforce the same, and also to proceed upon such Writs of execution as are already awarded and not yet returned, and to levy the Debt and Costs and make such Return to the Justice or Justices awarding the same, as he would have done before the Publication

but the same

to be perfected as if this

Ordinance had not been made.

of this Ordinance.

Preamble to

6-7 EDWARD VII., A. 1907 And whereas the providing an Easy, plain, and summary Method of the Clause for Proceeding for the Recovery of small Debts, with a due Regard at the erecting a new Jurisdiction. same Time to a certain Degree of Solemnity and Deliberation, which ought ever to accompany the Administration of Public Justice, very much contributes to promote Industry, and to support and Encourage useful Credit: All Disputes It is therefore ordained and declared by the Authority aforesaid, That for Sums not from and after the Day of the Date of the Publication aforesaid, all Manexceeding £12 ner of Disputes and Differences between Party and Party for any Sum to be heard before the not exceeding Twelve Pounds Currency of this Province, except as is hereJudges of the inafter excepted, shall be heard, tried, and adjudged before the Judges Courts of of the Courts of Common Pleas for the Time being only, who are hereby Common Pleas only, authorized and required to take Cognizance thereof, and the same to hear, except as after adjudge and finally determine as to them shall seem just in Law and Equiexcepted. ty, any Ordinance or Ordinances, or any Clause, Matter or Thing in them or any of them contained, to the contrary hereof in any wise notwithstanding.

Preamble to

Court of Com

And whereas some Inconveniences have arisen from the present Practice the Clause for of adjourning the Court of Common Pleas from Quebec to Montreal, and fixing the from the want of a fixed, settled, and Established Court for the hearing and mon Pleas at determining all matters arising within the District of Montreal, before Judges specially appointed for that District, and constantly residing within the same;

Montreal.

Court of Com

stituted an In

It is further Ordained and Declared, by the Authority aforesaid, That mon Pleas at from and after the Day of the Date of the Publication of this Ordinance, the Montreal con- Court of Common Pleas, heretofore held by Adjournment at different Days dependant and Times in the Town of Montreal, and considered and taken to be a Part Court, with or Member of the Court of Common Pleas established at Quebec, shall be, original Jurisdiction, and it is hereby constituted a Court of Record, with Original Jurisdiction of its own, independent of, and no wise connected with the Court of Common Pleas established at Quebec, which Court of Common Pleas for the District of Montreal shall, for the future, be held before Judges constantly residing within the said Town of Montreal, who shall have the same Power and Authority, and the same is hereby given and granted to them to hear and determine within the District of Montreal, and to award Execution, and arising within to do and execute all and every Matter or Thing touching the Administra the District tion of Justice, in as full and ample a manner as is now or has at any Time of Montreal, been used, practised, or done by the Court of Common Pleas established at Quebec, in and for the District of Quebec: And that from and after the manner as the Day of the Date of the Publication aforesaid the said Court of Common Court of Com- Pleas in the Town of Quebec, and the said Court of Common Pleas in the Quebec, in all Town of Montreal, shall be taken and adjudged to have each their separate matters aris Jurisdictions, independent of and unconnected with each other, that is to ing within the say, the said Court of Common Pleas at Quebec, in and over all matters and

in all Matters

in the same

mon Pleas in

District of

Quebec.

Proviso, that both Courts

Things arising within the District of Quebec, and the Court of Common
Pleas at Montreal in and over all matters and Things arising within the
District of Montreal.

Provided always, and it is hereby further Ordained and Declared by the shall have a Authority aforesaid, that from and after the Day of the Date of the Publiconcurrent cation aforesaid, where any Person or Persons, against whom Judgment shall Jurisdiction be obtained, in either of the said Courts of Common Pleas, shall not have in awarding Writs of Exe. any Lands, Goods, or Effects, wherewith to satisfy the said Judgment within cution. the Jurisdiction of that Court wherein such Judgment shall have been Where the De. obtained, but such Person or Persons shall have Lands, Goods, or Effects, fendant has within the Jurisdiction of the other Court of Common Pleas, that then and no Lands or in that Case it shall and may be lawful for the Judge or Judges of the Court the District of the District in which such Judgment shall have been obtained to award Execution to the Provost Marshal of the District in which such Lands,

Goods within

where the

SESSIONAL PAPER No. 18

Cause was tried,

Execution

Goods, or Effects shall be found, who shall, before he proceeds to do anything therein, carry the said Writ of Execution to one of the Judges of the Court of the District in which such Lands, Goods, or Effects shall be found, who may be award- is hereby authorized and required to endorse the same; which Writ of Exeed into the cution, being so indorsed as aforesaid, the said Provost Marshal of the other District; District in which such Lands, Goods, or Effects shall be found, shall proceed to levy the Debt and Costs, and make Return thereof, under his Hand and turn must be Seal, to the Judge or Judges of the Court from whence such Writ of Exemade by the cution was originally awarded; and such Writ of Execution, together with Provost Mar- the Return thereof, under the Hand and Seal of the Provost Marshal subCourt from scribing the same, shall be by him conveyed, so soon after the making and whence it was signing thereof, as conveniently may be, to the Provost Marshal of the originally

Andthe Re

shal, in the

awarded;

but it need

District from whence such Writ was originally awarded, who is hereby authorized and required to deliver the same into the Court of Common Pleas from whence such Writ was originally awarded, on the First Court Day next after the coming of the said Writ and Return into his Hands; not be made and the Judge or Judges of the said Court of Common Pleas, by whom such Writ of Execution was originally awarded, are hereby authorized and required to receive the same; and the same shall be as valid and effectual, to all Intents and Purposes, as if the Provost Marshall making and subscribing the same had himself been present, and delivered the same into the Court with his own Hands.

in Person.

The Provost

Marshal executing the Writ, only answerable before the

District which

Same.

Provided nevertheless, That the Provost Marshall executing the said Writ, and making Return thereof as aforesaid, only shall be answerable as well for the Truth of the said Return, as for any Misbehaviour, Omission, or Neglect in the manner of executing the said Writ, or making Return thereof before the Judge or Judges of the Court from whence such Writ of Court of the execution was originally awarded, and not before the Judge or Judges of awarded the the Court of the District to which he belongs :-And in case any Person or Persons against whom such Judgment as aforesaid shall be obtained, not having any Lands, Goods, or Effects within the Province, wherewith to satisfy the said Judgment, shall usually reside without the Jurisdiction The same in of the Court in which such Judgment shall be obtained, or being, at the Writs of Ca-Time of obtaining the said Judgment, resident within the same, shall alter pias ad Satisfaciendum, his or their place of Residence, and withdraw his or their Person, or Persons from the Jurisdiction of the Court in which such Judgment shall have been obtained, it shall and may be lawful for the Judge or Judges of the said Court in which such Judgment shall have been obtained, in all cases where such Writ may legally issue, to award a Writ or Writs of Capias ad Satisfaciendum to the Provost Marshal of the District in which such Person or Persons shall reside or be found, which Writ or Writs, being so indorsed as aforesaid, the said Provost Marshal of the District in which such Person or Persons shall reside or be found, shall proceed to execute the same, and to arrest the Body or Bodies of such Person or Persons, and him or them to convey to the Common Gaol of the District in which such Person or Persons shall be arrested, there to remain till the Debt and Costs are paid, or he or they be otherwise delivered by due Course of Law.

and the De

fendant to be

conveyed to the Gaol of

the District

in which he

is arrested.

Preamble to

the year.

And in order to avoid the Delays and Inconveniences occasioned by the the Clause for present practice of holding the said Courts of Common Pleas at certain keeping the fixed Times and Periods, according to the Directions of the aforesaid Courts open throughout Ordinance of September One thousand, seven hundred and sixty-four, and to the Intent that the Judges of the said Courts may be enabled to give more speedy and effectual Relief in all Cases, as well where the matter or Thing in Demand shall exceed the Sum of Twelve Pounds, and where it Courts to sit falls short of or is equal to it; it is further Ordained and Declared by the Authority aforesaid That from and after the Day of the Date of the

all the Year,

except Sundays, and other times of Vacation,

Without Re

6-7 EDWARD VI., A. 1907 Publication of this Ordinance, the said Courts of Common Pleas, as well at Quebec, as at Montreal, shall be constantly open to the Suitor, and they are hereby required to be kept open at all times throughout the Year, except on Sundays, and at Seed time, a Month at Harvest, and a Fortnight at Christmas and Easter, and except during such Vacation as shall be from Time to Time appointed by the Judges for making their respective Circuits throughout the Province, Twice in every Year: and the Judges of gard to Terms, the said Courts are hereby authorized and required to issue their Process, as appointed and to do and execute all and every other Matter or Thing touching the by the Ordi. Administration of Justice, without Regard to Terms or any stated Periods of Time, as Limited and appointed by the Ordinance of September, one thousand seven hundred and sixty-four, or any other Ordinance, custom or usage whatsoever, all and every of which Ordinance, or Ordinances, so far as they relate to the Sitting of the said Courts, or prescribe any Limitarelate to the tions of Time for that Purpose, are hereby annulled, revoked, and made Sitting of the Said Courts, Void, in as full and ample a manner as if they were herein particularly are repealed. enumerated and set forth.

nance of September 1764.

or any other or finances; all which, as far as they

The Judges to sit one day in every week at their Dis

cretion for

matters above £12. ;

and on every Friday, except in Vaca

tion for riat

ters not ex

ceeding £12,

One Judge

Provided always, and it is further Ordained and Declared by the Authority aforesaid, That the Judges of the said Courts of Common Pleas, as well in Quebec as in Montreal, shall appoint One Day in every week (except Sunday, or in such Vacation as aforesaid) at their Discretion for the hearing and determining all matters wherein the Cause of Action shall exceed the Sum of Twelve Pounds, which Day shall be declared at the rising of the Court on the Court day next preceding; and no Adjournment of the Court shall be made for any longer time than One Week, upon any Pretence or Ground whatsoever.

Provided also, That Friday in every week, except it be in such Vacation as aforesaid, shall be always a Court Day, as well in the Town of Quebec as Montreal, for the hearing and determining all Matters wherein the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid; on which Day one of the Judges of the said Courts of Common Pleas shall attend, as well at Quebec as at Montreal, for the Dispatch of Business, who is hereby authorized and required to proceed to hear and determine all matters where the Cause of Action shall not exceed the Sum of Twelve Pounds, in the sufficient in Absence of the other Judge-such Judge being prevented from attending exceeding £12, by Sickness, or any other Lawful and reasonable Cause of Excuse; and every the other hav- Judgment, sentence, Order or Decree, given, made or pronounced, and every ing a reasonable Cause of Writ of Execution awarded by such Judge, in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, shall be in all Respects as binding and valid as if both the Judges of the said Court had been present and concurred in giving, making or pronouncing such Judgment, or in awarding such Writ of Execution.

Matters not

Absence.

And, to the Intent that this Part of the Jurisdiction of the said Courts of Common Pleas, which attaches upon matters where the Value of the Thing in Demand does not exceed the Sum of Twelve Pounds, and the manner and Form of proceeding therein may be clearly comprehended, so as to enable the Party, either by himself or his Agent, to Prosecute his own means of Redress with Dispatch, certainty, and Moderation in Point of Expence ; No Process to It is further Ordained and Declared by the Authority aforesaid, That from issue against and after the Day of the Date of the Publication aforesaid, in all Matters any Defend- where the Cause of Action shall not exceed the Sum of Twelve Pounds Currency, no Process whatsoever shall issue against any Defendant or Defendants, until the Plaintiff or Plaintiffs, or his, her or their Agent or Agents shall have first produced and left with, or being unable to write or read, shall have first procured, from the Clerk of the Court in which such Action is intended to be brought, who is hereby ordered and required to make out

ant till the

Plaintiff has filed his De

claration.

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