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6-7 EDWARD VII., A. 1907

Preamble.

(Copy.)

AN ORDINANCE FOR ESTABLISHING COURTS OF CIVIL
JUDICATURE IN THE PROVINCE OF QUEBEC.1

Whereas it is necessary to establish Courts of Civil Judicature for the speedy Administration of Justice within this Province; It is therefore Ordained and Enacted by His Excellency the Captain General, and Governor in Chief of this Province, by and with the Advice and Consent of the Legislative Council of the same, That,

Art. 1. For the Ease and Convenience of His Majesty's subjects Division of the residing in different Parts of this Province, the same shall be and hereby is Province into divided into Two Districts, to be called and known by the names of Quebec and Montreal, which said Districts shall be divided and bounded by the River Godfroy on the South, and by the River S Maurice on the North side of the River St Lawrence.

Two Districts.

Establishment of a

at least in

under that

Sum; except in Vacation Times.

Rule of
Decision

Art 2. A Court of Civil Jurisdiction, to be called the Court of Common Pleas, shall be, and hereby is erected, constituted, and established for Court of Common Pleas for each of the said Districts, the one whereof shall sit at the City of Quebec, each District; and the other at the City of Montreal, at least one Day in every week, for to sit one day the decision of Causes in which the Value of the matter in Dispute shall every Week, exceed Ten Pounds Sterling; and another Day in every week for the in matters ex- Decision of Causes in which the matter in Dispute shall be of or under the ceeding £10 Value of Ten Pounds Sterling, and shall so continue their Sittings throughSterling, & another day in out the whole Year, excepting Three Weeks at Seed Time, a Month at matters of or Harvest, and a Fortnight at Christmas and Easter, and except during such Vacations as shall be appointed by the Judges for making their Circuits Twice Every Year through their separate Districts. The said Courts shall have full Powers, Jurisdiction, and Authority, to hear and determine all matters of Controversy relative to Property and Civil Rights, according to the Rules prescribed by an Act of Parliament made and passed in the Fourteenth Year of the Reign of His Present Majesty, intituled, "An Act "for making more effectual Provision for the Government of the Province "of Quebec, in North America," and such Ordinances as may hereafter be Two Judges passed by the Governor and Legislative Council of the said Province. necessary to Art 3. In matters above the Value of Ten Pounds Sterling, the Premake a Court. Their Decision sence of Two Judges shall be necessary to constitute a Court of Common to be final in Pleas; the Decision of which Court shall be final in all cases where the matters under matter in Dispute shall not exceed the Value of Ten Pounds Sterling, except £10 Sterling except in cer- in matters which may relate to taking or demanding any Duty payable to tain Cases: His Majesty, or to any Fee of Office, or Annual Rents, or other such like In which ex- matter or Thing, where the Rights in future may be bound, in which Cases, and in matters and also in all Matters that exceed the said Value of Ten Pounds sterling, above that an Appeal shall lie to the Governor and Council; provided Security be duly value, Appeal given by the Appellant, that he will effectually prosecute the same, and Governor and answer the Condemnation; as also pay such Costs and Damages as shall be awarded, in case the Judgment or Sentence of the Court of Common Pleas shall be affirmed.

cepted Cases,

to be to the

Council.

Giving good security.

The Governor

Art 4. The Governor and Council are hereby erected and constituted and Council a Superior Court of Civil Jurisdiction (whereof in the absence of the made a Court Governor and Lieutenant Governor, the Chief Justice shall be President) of Appeals. for hearing and determining all Appeals from the inferior Courts of Civil

1 Canadian Archives, Q 62 A-2, p.586. This and the two following ordinances are framed in accordance with the 14th and 15th articles of the instructions to Governor Carleton, 1775. See pp. 423 & 424.

SESSIONAL PAPER No. 18

Governor, or

The Governor, Jurisdiction within the Province, in all cases where the matter in Dispute Lieutenant shall exceed the Sum of Ten Pounds Sterling, or shall relate to the taking Chief Justice or demanding any Duty payable to His Majesty, or to any Fee of Office or with any Five Annual Rents, or other such like Matter or Thing, where the Rights in

Members to

constitute a Court.

future may be bound, though the immediate Sum or Value appealed for be less than Ten Pounds Sterling. And any Five Members of the said Council (the Judges who shall have given the Judgment appealed from excepted) with the Governor, Lieutenant Governor, or Chief Justice, shall constitute a Court for that Purpose, which shall sit the first Monday in every Month throughout the year, and continue sitting each Month as long as the Business before it may require: And the said Court of Appeals shall have Power to revise and examine all the Proceedings in the Court below, and to correct all errors both in Fact and in Law, and to give such Judgment as The Judgment the Court below ought to have given, and on Judgment to award and issue such Execution as the Law shall direct.

of the Said

Court to be final in all mat

value of £500

Art 5. The Judgment of the said Court of Appeals shall be final in all ters not ex-cases where the matter in Dispute shall not exceed the Value of £500 ceeding the Sterling; but in all cases exceeding that Value, an Appeal shall lie to His Sterling. Majesty in His Privy Council, provided security be first duly given by the Appeals allow Appellant, that he will effectually prosecute his Appeal, and answer the ed in matters Condemnation, as also pay such Costs and Damages as shall be awarded by Value to His His Majesty in His Privy Council, in case the Sentence of the said Court Majesty in

above that

Council.
Other Cases in
which Appeal

of Appeals shall be affirmed. An Appeal shall likewise lie to His Majesty in His Privy Council from the Judgment of the said Court of Appeals in all cases where the matter in Question shall relate to the taking or demandshall be allowing any Duty payable to His Majesty, or to any Fee of Office, or Annual ed to His Rents, or any such like matter or Thing, where the Rights in future may Majesty in Council. be bound, though the immediate Sum or Value appealed for be less than Judgments £500 Sterling; and in all cases where Appeal shall be allowed to His Execution of Majesty in His Privy Council, Execution shall be suspended until the final the Courts of determination of such Appeal, provided Security be given as aforesaid.

Sentences and

Civil Jurisdiction, established since

the 1st of May 1775, confirm ed; subject to an Appeal. Appeal from the Judgments of all the Courts heretofore established to be prosecuted within Three Months.

All Matters

Art 6. All Judgments, Sentences and Executions of the Courts of Civil Jurisdiction, which it has been found necessary to establish since the 1st May 1775, are hereby ratified and confirmed,' subject nevertheless to an Appeal to the said Court of Appeals, in matters exceeding the value of Ten Pounds Sterling, and in Cases where Rights in future may be bound.

Art. 7. Any Party meaning to Appeal from any Judgment, either of the said last-mentioned Courts, or of the Courts of Civil Jurisdiction subsisting in the Province before the 1st of May 1775, shall sue out the Writ of Appeal within Three Months after the Publication of this Ordinance, after which Period the same will not be allowed.

Art 8. All Actions instituted in any of the Courts of Civil Jurisdiction subsisting in the Province before the 1st of May 1775, or in those established since the 1st of May 1775, and remaining undetermined therein, undetermined shall be transmitted to the Courts of Common Pleas hereby established for in any former the respective Districts, to be proceeded upon to Judgment, as if the same Court of Ap hai been commenced therein; also all Matters remaining undetermined in peals to be transmitted to any Court of Appeals heretofore subsisting in this Province shall be forththe Court of with transmitted to the Court of Appeals hereby established, to be proceeded upon therein to Judgment and Execution.

Governor and
Council.

GUY CARLETON

The Quebec Act coming into force May 1st, 1775, "all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the time being relative to the Civil Government and Administration of Justice in the said Province, and all Commissions to Judges and other Officers thereof, be, and the same are hereby revoked, annulled, and made void from and after the first day of May, one thousand seven hundred and seventy-five." (Clause 4.) But as the invasion of the Province had prevented the assembling of the Council and the framing of new ordinances, the legal system had to be placed upon a provisional basis for the time being. See Carleton to Germain Aug. 10th, 1776, Q 12, pp. 119, 124, 131.

18-3-30

6-7 EDWARD VII., A. 1907

Ordained and Enacted by the Authority aforesaid, and passed in Council, under the Great Seal of the Province at the Council Chamber in the Castle of St Louis, in the City of Quebec, the 25th day of February, in the seventeenth year of the Reign of our Sovereign Lord George the Third, by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith and so forth, and in the year of our Lord 1777.

By His Excellency's Command

J: WILLIAMS

C.L.C.

(Copy)

Preamble.

Manner of

the Value of

Summons.

Cap. II.

AN ORDINANCE TO REGULATE THE PROCEEDINGS IN THE
COURTS OF CIVIL JUDICATURE IN THE PROVINCE

OF QUEBEC.1

Whereas it is necessary for the Ease and Convenience of His Majesty's subjects who may have Actions to prosecute in the Courts of Civil Judicature established in this Province, that the mode of Administering Justice in the said Courts should be clearly ascertained, and rendered as plain as possible: It is therefore Ordained and Enacted by his Excellency the Captain General and Governor in Chief of this Province, by and with the Advice and Consent of the Legislative Council of the same, That

Art. 1. In all cases or Matters of Property, exceeding the Sum or Value proceeding in of £10 Sterling, upon a Declaration presented to any one of the Judges of Actions above the Court of Common Pleas, by any Person, setting forth the Grounds £10. Sterling. of his Complaint against a Defendant, and praying an Order to Compel Suing out the him to appear and answer thereto, such Judge shall be, and hereby is empowered and required in his separate District to grant a Writ of Summons in the Language of the Defendant, issuing forth in His Majesty's Name, tested and signed by one of the Judges, and directed to the Sheriff of the District, to summon the Defendant to appear and answer the Plaintiffs Declaration on some certain future day, Regard being had to the Distance of the Defendant's abode from the Place where the Court sits; but if the Judges, or any Two of them are satisfied, by the Affidavit of the Plaintiff, or otherwise, that the Defendant is indebted to him, and on the point of Attachment leaving the Province, whereby the Plaintiff might be deprived of his against the Remedy against him; it shall be lawful for the said Judges, or any Two of Body where a them, to grant an Attachment against the Body of such Defendant, and going to leave hold him to Bail, and for Want of Bail to commit him to Prison until the the Province. Determination of the Action against him: The Declaration shall in all cases Declaration to accompany accompany the Writ, and the Plaintiff shall not be permitted to amend it until the Defendant shall have answered the matter therein contained, nor afterwards, without paying such reasonable Costs as the Court may ascertain.

Debtor is

the Writ.

Service

thereof.

If Defendant does not ap

pear,

Art 2. Copies both of the Writ of Summons, and the Declaration, shall be served on the Defendant personally, or left at his House with some grown Person there, otherwise the Service shall be deemed insufficient.

Art 3. If on the Day of the Return of the Writ of Summons the Defendant does not appear in Person, or by Attorney (Proof of such Service being produced or made in Court) the Plaintiff shall obtain a Default against the Defendant, and if on Calling over the Action in the next Weekly Court Day the Defendant should still neglect to appear, without any good Reason

1 Canadian Archives, Q 62 A-2, p.568.

SESSIONAL PAPER No. 18

Judgment to be entered.

If Defendant

to answer the

for such his Neglect, the Court after hearing and receiving sufficient Proof of the Plaintiff's Demand, shall cause their final Judgment to be entered against the Defendant, and shall award such Costs thereupon as they shall think reasonable, and issue such Execution as the Law, according to the nature of the case, may direct.

Art 4. If Defendant appears at the Return of the Writ of Summons, or, appears, he is having made Default on that Day, pays such Costs as the Court may think Declaration. reasonable, and appears on the next Weekly Court Day after such Řeturn, he shall, either then, or on such other Day as he may obtain from the Court, make his Answer to the Declaration, either in Writing or Verbally as he thinks fit, provided that if his Answer is Verbal the Clerk of the Court shall take down the substance thereof in writing, and preserve the same amongst the Records of the Court.

If the Plaintiff does not at

tend the ac

tion to be dis

If the Plaintiff does not appear, or appearing does not prosecute his Action, the same shall be dismissed with Costs.

Art 5. If upon the Declaration and Answer, or such further Pleadmissed with ings as the Court may, if it thinks proper, permit or direct, the Parties Costs. shall appear to differ essentially in their State of Facts, the Court shall If the Parties differ in their ascertain and order the Clerk to take down in Writing, such Facts, material State of Facts, to the Decision of the Cause as it will proceed to receive Proof upon, and ascertain the appoint a Day for hearing such Proofs as the Parties shall think proper to

Court shall

Facts neces

sary to be proved.

produce.

Art 6. In all Cases where Witnesses are produced they shall be exManner of ex- amined and Cross Examined, viva voce, in Open Court, unless some good amining Wit- Reason is shewn to the Judges for departing from this Rule in particular nesses; their Cases. The Examinations of the Witnesses shall be taken down in WritExaminations to be taken ing by the Clerk, and filed among the Records of the Court.

down in Writing.

Art. 7. In the Proof of all Facts concerning Commercial Matters ReEnglish Rules course shall be had in all the Courts of Civil Jurisdiction in the Province, of Evidences to the Rules of Evidence laid down by the English Laws.1

adopted in Commercial

Cases.

ing to sue out

manding the

Judges to send up the Record.

Art. 8. The Party meaning to Appeal from any Sentence or Judgment of any of the Courts of Common Pleas, shall sue out a Writ from the Court Of Appeals. of Appeals, tested and signed by the Governor, Lieutenant Governor, or Party appeal- Chief Justice, stating that the Appellant complains of being aggrieved by a Writ, com- the Judgment, and therefore commanding the Judges of the Inferior Court, or any Two of them, to send up the Original Papers and Proceedings in the Cause, and Transcripts of all Rules, Orders and Proceedings found in the Records or Registers of the Court concerning the same; such Writ, when presented to any of the Judges of the Court below, shall be allowed by him, if the Appellant has given the requisite Security, and when allowed, the Clerk of the Court shall proceed to comply with the Order of the Writ, and the Judges, or any Two of them, shall make their Return against the Return Day thereof.

The Appell- Art 9. If the Appellant does not within Eight Days after the Return ant to file his of the said Writ, and the Transmission of the Proceedings, file his Reasons reasons of Appeal in Eight of Appeal, the Appellee shall obtain a Rule or order, that unless the ApDays. pellant's Reasons of Appeal are filed in Four Days, the Appeal will be dismissed, and if the said Reasons of Appeal are not filed within Four Days after Service of the said Rule on the Appellant or his Agent, the Appeal shall accordingly be dismissed with Costs.

Appellee to file his an

Art 10. Within Eight Days after the Reasons of Appeal are filed, the Appellee shall file his answers thereto, or if he neglects so to do the Appel wers in Eight lant shall obtain a Rule or Order, that unless the Appellee file his Answers

Days.

within Four Days he will be precluded from filing them after that Period; and if his Answers are not filed within Four Days after Service of such 1 Concerning this partial introduction of the English law in civil matters, notwithstanding the general policy of the Quebec Act, see article 12 of the Instructions to Carleton, 1775, p. 422.

18-3-30

6-7 EDWARD VII., A. 1907 Rule on the Appellee or his Agent, he shall accordingly be precluded from filing them, and the Court will proceed to hear the Cause on the part of the Appellant, and proceed to Judgment therein without the Intervention of the Appellee.

The Court, on Art 11. The sail Court of Appeals nevertheless shall and may, upon Apgood Cause plication made, and good cause shewn by either of the Parties (Notice Shewn, to prolong the Time being given the other) prolong the Time allowed for filing either the Reasons above allowed of Appeal or Answers thereto, and in case the Court shall not be sitting at the Time when such Reasons or Answers ought regularly to be filed, the Party neglecting shall apply to the Court, at the next sitting thereof, and shew his Reasons for such his Neglect and if the Court finds them insufficient, it will, as the case may be, either dismiss the Appeal, or proceed to hear it without the Intervention of the Appellee, as above directed.

Art 12. When the Reasons of Appeal, and Answers thereto, are filed, Day to be fixed for hear- the Court shall, on the Application of either of the Parties, fix on such ing the Cause. convenient Day for the hearing of the Cause as to it may seem proper.

In Fifteen

days after Judgment, execution to

issue in case

the Writ of
Appeal be not
allowed.
No Appeal

a Year from

Of Execu

Art 13. If the Writ of Appeal is not allowed by one of the Judges of the Court below, and a Copy thereof served on the Appellee or his Agent within Fifteen days after any Judgment given in the Court of Common Pleas, Execution shall issue, and no Appeal shall be allowed or received from the Court of Common Pleas after the expiration of one Year from the Date of the Judgment of such Court.

Art 14. The Executions sued out from any of the Courts of Civil Jurisallowed after diction shall be a Writ issuing in the King's Name, tested and signed, when the Date of the issuing from the Court of Appeals, either by the Governor, Lieutenant GovJudgment. ernor, or Chief Justice, and when issuing from the Court of Common Pleas, by one of the Judges of the Court for the District in which it is given, directed to the Sheriff of the District, setting forth the Judgment of the Court between the Parties, and the kind of Execution which the Law, of Executions. according as the case may be, shall direct, whether the same be to take the Body, or to levy a Sum of Money out of any one's Goods and Chattels, Lands and Tenements, or to do any Special matter or Thing whatever; the Date of the Judgment shall be indorsed on every Writ of Execution, and that Indorsement signed by the Judge.

tions, nature of the Writ

Personals to be first dis

Art 15. In all Cases where execution shall issue against Real and Personal Estates, the Sheriff shall first dispose of the Personal Property, and if the posed of, and Proceeds thereof fall short of the Amount of the Judgment the Real Estate, if insufficient, Real Estate or so much thereof, as will produce the Amount, shall be sold for that Purpose.

to be sold.

Manner of selling Personals.

Manner of selling Real Property.

When Two or more Writs of

Art 16. Where Moveables shall be seized by the Sheriff under an Execution, he shall cause the seizure to be published at the Church Door, of the Parish, immediately after Divine Service, on the first Sunday succeeding such Seizure, and at the same time cause to be proclaimed the Day and Place when and where he intends to proceed to the sale thereof, provided that the Place of Sale shall be in the same Parish in which the Seizure made.

Art 17. When Lands and Tenements shall be seized by the Sheriff under a Writ of Execution, he shall advertize the Sale thereof Three Several Times in the Quebec Gazette, to be on some certain Day after the expiration of Four Months from the Date of the First Advertisement, and proclaim the said Sale at the Church Door of the Parish in which the Premises are situated, immediately after Divine Service, on the Three Sundays next preceding the same and Cause a Copy of the said Advertisement to be fixed on the Door of the Parish Church.

Art 18. If Two or more Writs of Execution shall be issued upon JudgExecution is- ments given the same Day against the same Defendant or Defendants, and

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