specially re

2772. Upon all matters which they may deem of sufficient Important importance, or that may, for that purpose, be defined by the matters to be Lieutenant-Governor in Council, the board of inspectors shall ported to report to the Provincial Secretary, or to such other head of Provincial department as the Lieutenant-Governor in Council Secretary. time to time, direct. 31 V., c. 23, s. 16.

from may,

Governor.

2773. No decision of the board is binding until it has been Approval by approved by the Lieutenant-Governor, and, when any such Lieutenantreport is made, any member of the board may record his dissent on the minutes and may submit to the Provincial Secretary a minority report. 31 V., c. 23, s. 16.

CHAPTER NINTH.

LOSSES CAUSED BY THE BURNING OF A COURT HOUSE.

to other districts or cir

cuits by pro

clamation.

2774. By proclamation, published in the Quebec Official Application Gazette, the Lieutenant-Governor in Council may, at any time, extend to any judicial district or circuit in this Province, in which the court house may be destroyed by fire, the following provisions of the act 37 Victoria, chapter fifteen, to remedy the losses caused by the burning of the Quebec court house, and, thereupon, on and after the day fixed in such proclamation, such provisions shall, mutatis mutandis, apply to every such judicial district or circuit. 37 V., c. 15, s. 29.

the Court of

cuit Court.

1. Any party or person, or the attorney or agent of any party or If an original person interested in a case in the Court of Queen's Bench, appeal order or judgside, or the Superior Court in the district of Quebec, or the Circuit ment given by Court at the city of Quebec, in which any order or judgment shall Appeal, Suhave been made or rendered on or before the first day of February, perior or Cirone thousand eight hundred and seventy-three, may, if the original before the 1st register of such order or judgment has been lost by the burning of Feb., 1873, be the court house at the said city, demand the enrolment of an destroyed, a authentic copy of such order or judgment and upon production copy may be registered in thereof for that purpose, the clerk of the Court of Queen's Bench, the register of appeal side, or the prothonotary of the Superior Court, or the clerk the court. of the Circuit Court shall enrol such authentic copy in the register of the court in which the order was made or the judgment obtained. 37 V., c. 15, s. 1.

2. Notice of such enrolment shall forthwith be given by the Notice to party or person who so demanded the same to the party or person that effect; affected by the judgment or order or to his legal representatives; and, when service of the notice in the ordinary manner is impracticable, a judge of the said Court of Queen's Bench, or of the said Superior Court, in the said district, shall direct the mode of service. 37 V., c. 15, s. 2.

How served.

3. Any party or person, interested in a case wherein judgment shall If a copy have been rendered, or an order made in the Court of Queen's Bench, cannot be appeal side, or in the Superior Court, or in the Circuit Court, on or how to supbefore the said first day of February, eighteen hundred and seventy- ply the same.

Date of judgment.

Delay for execution.

Interval not reckoned in

delay to ap

peal.

Delay extended to

to writs of

three, who shall be unable to produce for enrolment a copy of the judgment rendered or of the order made by either of the said courts. as provided in section one, may, if the original register of such judgment or order has been lost or destroyed by the said fire, on petition to a judge of the said Court of Queen's Bench, or to a judge of the said Superior Court, after having given notice to the adverse party as hereinafter required on petitions for the restoration of the records, and on proof made to the satisfaction of the judge, either by the declaration in writing of the judge who made the order, or of one or more of the judges of the court which rendered the judgment (which declaration it shall be the duty of such judge or judges to make as fully as may be in his or their power) upon the production of a writ of execution or extracts from public or private registers, upon the oath of the adverse party, the evidence of the attorney who represented the parties, or upon evidence of any other nature admissible in similar cases, shewing the amount or the purport and effect of the judgment or order, obtain the enrolment of a judgment or order in the register of the court in which the judgment was recovered or the order made.

Such judgment or order shall bear the date of the original judg ment or order if the same has been ascertained, and if not, the first of February, one thousand eight hundred and seventy-three. 37 V., c. 15, s. 3.

4. Judgments or orders enrolled under the above sections 1 and 3 can not be executed until fifteen days after notice of the enrolment under section 1 or until after the like delay from the date of enrolment under section 3. 37 V., c. 15, s. 4 § 1.

The period of time between the date of the fire and the enrolment of any such judgment or order shall not be reckoned in the delay for appealing therefrom. 37 V., c. 15, s. 4 § 2.

In cases in which no return has been made to a writ of appeal in consequence of the destruction of the original register of judgments, make returns the record not having been destroyed, the delay to make the said return shall be extended to twenty days after the enrolment of a copy of the judgment appealed from in the office of the court where the said record is. 37 V., c. 15, s. 4 § 3.

appeal not made.

Power to begin new

er parte proceedings, if the record be

lost.

Appeal in ex parte cases

5. In any ex parte suit or proceeding in the Superior Court, or in the Circuit Court, the record of which has been lost or destroyed by the said fire, before or after judgment, the plaintiff may bring a fresh action for the same cause. 37 V., c. 15, s. 5.

6. In ex parte cases the record of which has been lost or destroyed by the said fire, no appeal shall lie from the judgment unless first allowed by the Court of Queen's Bench upon special application, and application to on evidence to the satisfaction of the court that the judgment was the judge of obtained irregularly and contrary to law.

shall be upon

the court.

Notice of and

Notice of the intention to appeal shall be given within fifteen days delay to ap- after service of notice of the enrolment of the judgment, and the applipeal. cation for leave to appeal shall be presented at the term next after the expiration of such fifteen days.

How execu

Execution of the judgment shall be stayed by filing in the protion stayed. thonotary's office, the notice of appeal, with a certificate of service thereof, and giving security in appeal. 37 V., c. 15, s. 6.

If appeal be allowed,

record must be restored.

2. If the appeal be allowed, the court shall order the restoration of the record, which shall be proceeded with in the manner hereinafter provided.

The defendant shall sue out and serve his writ of appeal within Service of eight days after the judgment declaring the record restored, other- writ of apwise he shall forfeit his right of appeal, and shall be condemned, upon Forfeiture peal. petition to a judge of the Superior Court, to pay to the plaintiff all with costs. costs occasioned by his appeal, including those on the restoration of the record. 37 V., c. 15, s. 6 § 2.

Plaintiff

3. The plaintiff in any such ex parte case may on payment of costs, at any time renounce the judgment which he shall have caused to be may renounce the judgment enrolled under the said sections 1 and 3 and bring a fresh action for enrolled, and the same cause. 37 V., c. 15 s. 6 § 3.

recommence the suit.

4. If the judge of the Superior Court before whom the proceedings If the rec to restore the record are had, decide that it cannot be restored, the cannot be judgment shall be final, and the defendant's appeal dismissed with restored apcosts, unless it appear that the non-restoration of the record is caused peal is dismissed; case by the fault of the plaintiff, in which case the judgment shall be vacated. 37 V., c. 15, s. 6 § 4.

in

where plain

tiff is to be blamed.

Pending suits may be

7. In any case or proceeding pending in the Superior Court or the Circuit Court, the record of which has been lost or destroyed by the said fire, a judge of the Superior Court may, on petition of any renewed by of the said parties thereto or their legal representatives, after notice permission of the judge. to all the other parties, or to their attorneys ad litem, permit such party to recommence such case or proceeding, or to bring an action for the same cause as that set forth in the case or proceeding of the said applicant; but such permission shall not be granted, if any other Exception. party to the other cause shows to the satisfaction of the judge that he will suffer substantial and manifest injustice by the institution of such action, and that it is possible to restore the record as hereinafter provided for, so as to render it in substance what it was before the fire. The notice of such petition may be given in the manner Notice of the petition. and form as hereinafter provided for the notice of a petition for the restoration of a record. 37 V., c. 15, s. 7.

8. The record or any part thereof, in any case in the said Superior Restoration Court or in the said Circuit Court, which has been destroyed by the by consent or by order of said fire, may be, when practicable, restored either by consent of the judge. parties or by order of the judge. 37 V., c. 15, s. 8.

writing.

9. No record shall be deemed or considered as restored by consent, The consent unless the parties or their attorneys declare in writing that they to be in agree that the record made up shall avail and have the same effect as the original record; whereupon the judge shall declare the record to be duly restored, and the further proceedings in the cause shall be had in the ordinary manner. 37 V., c. 15, s. 9.

on petition.

10. An order for the restoration of a record or part thereof, in any An order for contested suit or proceeding pending at the time of the said fire, restoration shall be made by a judge on application by petition of any party to may be given the record, of which due notice shall be given to the other parties, shewing, to the satisfaction of the judge, that restoration is possible and requisite to secure to the petitioner acquired rights which can not otherwise be invoked or established. 37 V., c. 15, s. 10.

11. In cases wherein final judgment has been rendered, including Records in those inscribed for review or in which an appeal has been taken to adjudicated the Court of Queen's Bench, the record or part thereof may be cases, in restored by consent as provided in section 9, or restoration may review, or be ordered by the judge as prescribed in section 10.

scribed for

taken into appeal, may

If the judge decides that the record or the substance thereof can be restored not be restored, and that such impossibility of restoration is not When the owing to the fault or neglect of the party who obtained the judgment, judgment has

the effect of

such judgment shall have the force and effect of chose jugée. res judicata, If he declares that the non-restoration of the record is attributable to oris vacated. the fault or neglect of that party, the judgment shall be vacated. 37 V., c. 15, s. 11.

Delay to demand restoration, to preserve right of appeal or review.

Proceedings in restoration.

What judge cognizance of the proceedings.

shall take

Case of jury trial.

Judge may prescribe the delays.

His powers as to proof.

Lost deposition, how restored.

Notification

terested.

12. Any party who has inscribed for review, or appealed from, or shall appeal from, a judgment rendered before the said fire, in a case the record of which had been lost or destroyed, shall be bound to commence proceedings to restore the record, within six months from the notice of enrolment of the judgment under sections two and three, in default whereof he shall forfeit his right of appeal or review. 37 V., c. 15, s. 12.

13. The proceedings for the restoration of a record are the following: 37 V., c. 15, s. 13.

1. The judge who rendered the original judgment shall alone take cognizance of the petition and proceedings thereon, and in case of his death, sickness, or absence. the petition shall be presented to and the subsequent proceedings had before another judge of the court of original jurisdiction.

The promotion of the judge to another court shall not be a ground of disqualification.

If a trial by jury has been had in the case, the petition shall be presented to and adjudicated upon by the judge who presided at the trial, or, in case of his death, sickness or absence, by one of the judges who gave judgment upon the verdict. 37 V., c. 15, s. 13 § 1.

2. The judge may prescribe the delays within which the record shall be restored or the proceedings incidental thereto carried on, and may extend the same or foreclose any party who has not proceeded with due diligence.

He also may make such order for the examination of the parties or their attorneys or witnesses and the production of copies of documents belonging to the lost record, as will best secure the rights and protect the interest of all parties concerned, and give effect to the judgment ordering the restoration. 37 V., c. 15, s. 13 § 2.

3. Any deposition lost or destroyed by the fire may be replaced either by a written or printed copy, the correctness of which shall be admitted or shewn to the satisfaction of the judge, or by recalling the witness examined. 37 V., c. 15, s. 13 § 3.

4. The petition whereby proceedings are to be instituted under to parties in this act, shall be served upon all the parties to the original suit or proceeding, or upon their attorneys ad litem, and they shall have the same delays thereupon as are allowed upon writs of summons issued from the Circuit Court.

Delay to

answer.

Death of one

When service of the petition cannot be effected in the ordinary manner, the judge shall make such order with reference thereto as as to him shall seem just and proper. 31 V., c. 15, s. 13 § 4.

5. If one of the parties is dead or has changed his civil status, the of the parties. petition shall be presented by or be served upon the representative of such person, or by or upon the person entitled to take up the instance. 37 V., c. 15, s. 13 § 5.

Restoration

6. The proceedings had and taken in the Court of Appeals or in review and Court of Review may be restored on petition in such manner and appeal, how form as shall be prescribed by a judge of those courts respectively. 37 V., c. 15, s. 13 § 6.

effected,

Further proceedings according to the

14. If the judgment declares that the record has been completely restored or that the substance thereof has been established, all fur

her proceedings thereon shall be governed by the ordinary rules. ordinary 37 V., c. 15, s. 14.

rules.

15. If the judgment declares that the record has not been restored If the restored wholly or in substance, it shall state in what respect the new record record is incomplete. differs from the old, and whether any neglect is attributable to any of the parties. 37 V., c. 15, s. 15.

restoration

may be ap

16. An appeal shall lie in the ordinary manner from any final A judgment judgment upon an application to restore a record or to be permitted or petition for to bring a fresh action for the same cause. 37 V., c. 15, s. 16. 17. The losing party shall pay all costs, occasioned by the fire, in pealed from. addition to those of the original suit or proceeding, and the costs Losing party shall be taxed on secondary or other evidence to the satisfaction of to pay the the prothonotary. 37 V., c. 15, s. 17.

costs.

2. The attorney's fees on proceedings to restore a record must Attorney's be one-half of those allowed on the action or proceeding up to the fees one-half. stage at which restoration is effected. 37 V., c. 15, s.17 § 2.

stamps.

18. No fee of office or tax shall be exacted, nor shall any stamp be Exemption of required to be affixed, in any fresh action or upon any petition for fees, tax, leave to bring the same, upon any proceeding taken to restore a lost record, or for or upon any office copy of a document to replace one previously procured and destroyed; provided that an order to that effect be obtained from the prothonotary or clerk, which he shall be bound to make on production of an affidavit of the party or his attorney as to the loss of the record and the stage which it had reached at the time of the fire, or as to the loss of the document sought to be replaced. 37 V., c. 15, s. 18.

2. The exemption from such fee, tax and law-stamps must be Brief mention briefly mentioned on the document to which the order applies, as required. made under this act, and be signed by the prothonotary or clerk who grants the same. 37 V., c. 15, s. 18 § 2.

the C. C. P.

19. The period of time between the first of February, one Interval not thousand eight hundred and seventy-three, and the first day of Sep- reckoned in certain legal tember, one thousand eight hundred and seventy-four next, is, in so far delays preas procedings or matters before the Court of Queen's Bench, Superior scribed by the Court, and Circuit Court in the district of Quebec are concerned, C. C., and which relate to records destroyed in whole or in part by the said fire, excluded from the operation of articles 1040, 1550, 1998, 1999, 2242, 2243, 2250, 2251, 2252, 2258, 2259, 2260, 2261, 2262, 2263, 2267 and 2268, of the Civil Code of Lower Canada, and of articles 454, 483, 506, 947, 1118 and 1119, of the Code of Civil Procedure; and with reference to the said articles of the Civil Code and of the Code of Civil Procedure, the first day of September next shall be reckoned as the day immediately following the first day of February, one thousand eight hundred and seventy-three. 37 V., c. 15, s. 19.

time of the

20. The pendency at the time of the said fire of any suit or pro- Action pendceeding, the record of which has been thereby lost or destroyed, ing at the shall be no answer to a fresh action or proceeding for the same cause fire, no bar to instituted under the provisions of this act. 37 V., c. 15, s. 20. fresh action. 21. Every fresh suit or proceeding under this act shall be New proceeddeemed a continuance of the former cause or proceeding so as to sus- ing deemed pend or interrupt all prescriptions and limitations; and, also, with interruption to prescripreference to the rule that every action, suit, cause or proceeding tion, &c. is to be decided according to the relative right of the parties thereto existing at the time when such action, suit, cause or proceeding was instituted or otherwise commenced, and also within the meaning of article 84 of the Code of Civil Procedure, in ex parte actions,