Statutes of the Province of Canada

diligent search and has not been able to find the party, and that to the best of his belief such party is not within the limits of Lower Canada, shall be prima facie sufficient to establish the fact of such absence.

to be executo

of.

wishes to con

43. Every Judgment rendered under the eleventh section of Judgments An Act further to amend the Judicature Acts of Lower Canada under sect. 11 (22 Victoria, 1858, Chapter 5), shall, notwithstanding the of 22 V. c. 5, provisions of that Act, be executory, without the formality ry without of the service thereof, after the expiration of the usual delay; service therebut whenever the first execution is issued upon any such judgment, and the effects of the defendant are seized, if the Provision if party seized upon wishes to contest the judgment, he shall do defendant so within the delay intervening between the day of seizure test the judg and that fixed for the sale of the effects seized, and if the ment. officer charged with the execution of the writ shall return a procès-verbal de carence (a return of nulla bona), the delay for filing Opposition. such opposition shall extend to ten days only from the execution of the Writ, and the date of such procès-verbal de carence; and the filing of any opposition shall cause a suspension of the sale until such opposition shall be disposed of by a further order of the Court, in the manner prescribed by law; the Prothonotary or Clerk of the Court, in which Certificate of such opposition is filed, shall grant, in duplicate, a certificate Prothonotary of the filing of such opposition, one of which shall be served on Seizing upon the officer making the seizure, who shall acknowledge Officer. the receipt thereof, in default of which it shall be served upon him at his own cost, and every such seizing officer shall return into Court the Writ of Execution and his proceedings thereupon,

to be served

together with the certificate so served upon him; if, upon any Delay in cases such judgment, a writ of saisie-arrêt issues, the delay to contest of saisie such judgment by opposition shall be ten days from the date of arrêt. the service and execution of such writ of saisie-arrét.

44. If any opposition as aforesaid be maintained, in whole Costs if oppoor in part, all the costs of the execution and of the seizure shall sition is mainbe paid by the party at whose instance the seizure shall have tained. been made.

45. The hypothec arising from any such judgment as aforeHypothec said, shall be reckoned from its date, subject to its being duly arising from enregistered as any other Judgment. the judgment.

fore execution

46. Any defendant may, before the issue of execution on the Defendant judgment recorded against him, file such opposition as afore- may file his said with his exhibits in support thereof, in the office of the opposition beProthonotary or Clerk of the proper Court, and deposit there-issues. with the costs to be refunded to the plaintiff, with the copy of the opposition for him; but such defendant shall, in that case, Notice,give notice to the plaintiff of the day on which the opposition delay. has been filed,--and the delay for pleading shall be reckoned from the service of such notice.

If no opposi

tion be filed within the

delay.

47. If no opposition be filed, at the Office of the Prothonotary or Clerk, within the delay allowed for that purpose, the facts, as alleged in the action or demand, shall be deemed to be acknowledged and confessed by the defendant, and duly proved.

Plaintiff may 48. Any plaintiff, having obtained any such judgment, may renounce such renounce the same at any time before the execution thereof,--judgment. and upon his renunciation, which shall be filed of record, he shall become entitled to proceed in the case in the manner provided with respect to cases by default or ex parte as if such judgment had never been rendered; and the costs of such judgment shall be borne by him.

Costs.

Parties may

any cause.

49. Any party in a cause may be summoned and examined be summoned as a witness by any other party in the same cause, and the party, as witnesses in so summoned and examined, may be cross-examined as a witness by his own attorney, if he be so represented, and the evidence given by any such party may be made available to the party obtaining it, or not, as he may think proper, provided that he declare his intention, at the close of his enquête, to avail himself of such evidence or not; but no such evidence shall be turned to the advantage of the party giving it; and every party so summoned shall be taxed as any other witness.

Conditions.

One witness sufficient where oral evidence is admissible. Relations of parties (ex

cept husband and wife,) may be exa

mined as wit

nesses.

50. In matters of oral evidence, one witness shall be sufficient to establish a fact.

51. All the relations and connections of the parties, except husband and wife, may be witnesses in civil matters, to depose in favor of or against them, notwithstanding the eleventh article of the twenty-second title (enquêtes) of the Ordinance of one thousand six hundred and sixty-seven, which shall be expressly repealed, inasmuch as it regards degrees of relationship only; but notwithstanding the competency of any relation within the degree of first cousin (cousin germain) to give evidence, such evidence may have its weight with the Judge, according as he Or parties in may deem the witness entitled to credibility; And any person who may be challenged as a witness on the ground of being interested, may give evidence in Courts of Justice, but the evidence of such witness shall have its weight with the Judge, according as he may be deemed intitled to credibility.

terested.

When insol

vency is spe

cially alleged as to party whose pro

52. No distribution of the moneys seized in the hands of a third party belonging to an insolvent person or of the proceeds of the sale of his effects, when such insolvency shall have been specially alleged by one of the parties, shall be ordered by the perty is seized, Superior Court or the Circuit Court, unless the creditors of the debtor whose effects have been seized shall have been previously called upon, under the authority of the Court, by a creditors have notice in the English and French languages, inserted twice in The Canada Gazelle, to file their claims, and every such

no distribu

tion to be

made until

been called in by notice.

Provision to

claim shall be filed in the Court within fifteen days of the date of the first insertion of such notice, and the names, (christian and surname) vocation and residence of the creditor shall be expressed in every such claim which shall be accompanied by a statement or account with proper vouchers; The above provi- extend to cersions shall apply to any curator, administrator, héritier bénéfi- tain parties. ciaire, or other person who may desire to render an account en justice for and to distribute the moneys in his hands, and any such person shall, for such purpose, by petition, come into either of the above Courts which, according to the jurisdiction appertaining to each, are hereby authorized to entertain and dispose of any such petition, and to take or order any proceedings consequent thereon, and such person shall cause the above notice to be given to the Creditors.

Inconsistent

53. Any thing contained in any other Act, inconsistent with the provisions of this Act, is hereby repealed, and ali the provi- enactments sions of An Act further to amend the Judicature Acts of Lower repealed. Canada (22 V. (1858) c. 5,) relating to judgments rendered by default, under the eleventh section thereof, to the contestation of them by opposition, and to the appeal from them, and all the other provisions thereof not inconsistent with this Act, shall continue to remain in force.

54. It is hereby declared that any Judge of the Superior Judge may Court, in the vacation from the ninth of July to the first of hear cases unSeptember in every year, has power and jurisdiction to hear der 18 V. c. and determine any case relating to lessors and lessees under long vacation. the Act eighteenth Victoria, Chapter one hundred and eight, and any other Act relating to the same matter.

108, in the

when wit

nesses demand

55. It shall be the duty of the Prothonotary or Clerk, to Duty of Prowhom application is made for execution on behalf of any thonotary. witness for the amount of his taxation, to verify whether any previous execution may have issued for such taxation either at execution for the instance of the witness or of any party in the cause; and their taxaany new execution which may issue there for, shall be null and tion. void if the amount shall have been levied or paid to the party, or his attorney, under any previous execution, or on a Bill of costs duly recovered.

56. Any cause or proceeding whatever may be discontinued As to disconin any stage thereof and at any time before judgment, even in nuance of vacation, but subject to costs in favor of the adverse party :

suits.

Such discontinuance may be effected in all cases by a motion Form. filed in the office of the Court, previous notice thereof having been given to the adverse party in the ordinary manner;

The party so discontinuing any cause or proceeding may Costs to be not again commence it, withont having first paid the costs paid. previously incurred.

When certain

into force.

57. The seventeenth and eighteenth sections of this Act shall sections of this not come into force until the first day of August, one thousand Act shall come eight hundred and sixty-one, and the yearly contribution required by the second section of this Act from the local Municipalities or Corporations of the Cities of Quebec, Montreal and Three-Rivers, and the town of Sherbrooke and the several local municipalities within the district of Quebec, Montreal, Three-Rivers, Gaspé, St. Francis, Kamouraska and Ottawa, respectively, shall not be payable until after that day. CAP. LVIII.

Preamble.

Certain re

turns to be made yearly by

Clerks of Commissioners' Courts.

Clerks of Circuit Courts.

An Act to provide for Annual Statistical Returns of
Judicial Matters.

[Assented to 19th May, 1860.] ER Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as

HER

follows:

1. Each year in the month of January, there shall be made, for the year ended the last day of December of the preceding year,―

1. By each Clerk of the Commissioners' Courts for the summary decision of Small Causes, a statement or return, showing:

The total number of Summonses issued; the number of Cases returned into court; the number of Judgments rendered; the number of Executions issued, and the number of Oppositions filed; (Form No. 1.)

2. By each Clerk of the Circuit Court in Lower Canada, a statement or return, showing:

The number of Writs issued, distinguishing the proportion of Appealable and non-Appealable cases, and showing how many of the latter were for sums of six pounds five shillings or under, and how many for sums above that amount; the number of Writs returned into Court, distinguishing the Appealable from non-Appealable cases; the number of actions in which default was made, distinguishing the Appealable from non-Appealable cases; the number of Judgments given in default cases, distinguishing the Appealable from non-Appealable cases, and showing the proportion given in each class by the Court and by the Clerk; the number of contested cases and the number in which Judgment has been given; the number of Writs of Execution issued, distinguishing between those de bonis and de terris; the number of oppositions filed, distinguishing the proportion of

Oppositions afin d'annuler

afin de distraire

3. By each Prothonotary or Clerk of the Superior Court, a Protnonotareturn, showing:

The number of Writs of Summonses issued, distinguishing those for sums between fifty pounds and seventy-five pounds, between seventy-five pounds and one hundred pounds, between one hundred pounds and five hundred pounds, and those over five hundred pounds; the number of Writs returned into Court, with the above distinction; the number of default cases, with the above distinction; the number of Judgments given in default cases, with the above distinction, showing the proportion given by the Court and by the Clerk; the number of contested cases, and the number in which Judginent has been given ; the number of Writs of Execution, distinguishing between those de bonis and de terris; the number of oppositions filed, distinguishing the proportion of

Oppositions afin d'annuler

ries.

afin de distraire
afin de charge
afin de conserver

and the number of each maintained, dismissed or undisposed of; the number of Writs of saisie-arrét before Judgment; the number of Writs of saisie-revendication; the number of Writs of saisie-gagerie; the number of applications for Writs of certiorari, mandamus, quo warranto and prohibition, distinguishing the number of each granted and refused; the number of suits under the Law regulating the rights of "Lessors and Lessees;" the number of applications for ratification of titles, and the number of suits ordered to be tried by Jury; (Form No. 3.)

4. By the Clerk of Appeals, a return, showing:

The total number of appeals in civil matters to the Court of Queen's Bench in Lower Canada; the number of cases in which Judgment has been rendered, distinguishing the number in which the Judgments appealed from have been confirmed or reversed; the number of cases en délibéré and the number of cases remaining unheard; also the number of reserved cases in criminal matters submitted to that Court; the number of those cases in which Judgment has been rendered, distinguishing the number in which the Judgments appealed from have been reversed, amended or confirmed; the number of cases en délibéré and the number of cases remaining unheard; also a statement, showing the number of each of the above classes of cases, and the same information with reference

Clerk of Appeals.

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