Ulterior proceedings.

Proviso as to Hypothecary actions.

Where Writs

de terris issue,

the Court into

which they are returned may order the Record to be re

moved to it..

Q. B. in infe

rior term and may order the vied by instal

Circuit Courts

debt to be lc

ments.

last mentioned Sheriff, with his proceedings thereon, duly returned into the Court from which it shall have been issued, if it be a writ de bonis, or into the Superior Term of the said Court of Queen's Bench in and for the District in which the said judgment shall have been rendered, if it be a writ de terris; and in the latter case, all ulterior proceedings of what kind soever, consequent upon the issuing of such writ de terris, or necessary for the execution thereof, as well with regard to the plaintiff and defendant, as with regard to other parties who, in due course of law, may have intervened in the cause by opposition or otherwise, shall be had in the Court last above mentioned, in Superior Term, as effectually and in the same manner as if the cause in which such writ shall have issued had been originally brought and determined in such last mentioned Court, in Superior Term: Provided always, that in all cases where execution may issue in any hypothecary action against any immoveable property declared by the judgment to be hypothecated for the payment of the money to be levied under such execution and délaissé under such judgment, and situate in a District other than that in which the writ shall issue, such writ shall be issued, executed and returned, and the subsequent proceedings relative to the same shall be had as herein provided with regard to alias writs de terris, without its being necessary that any other writ should previously issue.

XLIX. And be it enacted, that when any such writ de terris, issuing from any Circuit Court, or from the Inferior Term of any Court of Queen's Bench, shall have been, in the manner hereinbefore provided, returned into the said last named Court in Superior Term, it shall be lawful for the said last named Court, in its discretion, to direct the record of the cause in which such writ of execution shall have issued, to be removed into the said Superior Term, and such removal shall be made (on an order made by the said Court, and addressed to the Clerk or Prothonotary of the Court from which the record is to be removed,) in the same manner and according to the same regulations as are hereinbefore provided for the removal, on the order of a Justice or Circuit Judge, of suits or actions instituted before any Circuit Court, or Court of Queen's Bench in Inferior Term, into the said Court in Superior Term.

L. And be it enacted, that the Courts of Queen's Bench in Inferior Term, and the said Circuit Courts, may respectively, if they think proper, order the debt to be levied by instalments: Provided the delay allowed for the payment of the last instalment shall not exceed the space of three months from the day of the Judg ment: And provided also, that in default of payınent of any one such instalment, at the time it shall become due, execution may issue in satisfaction of the Judgment, as if such delay had not been granted.

taxation of

of

costs in supe-
rior term
be sufficient.

C. Courts to

LI. And be it enacted, that the certificate of the Clerk or Prothonotary of any Prothonotary's Court of Queen's Bench or Circuit Court, that the costs in any suit or action or proceeding in the Inferior Term of such Court of Queen's Bench, or in such Circuit Court, amount to a sum named in such certificate (the sums allowed to witnesses having been previously approved by a Justice or Circuit Judge, as the case may be,) shall be sufficient proof of the amount of such costs, provided, a detailed bill or account of the same, signed by the said Clerk or Prothonotary, be annexed to such certificate, and execution may issue accordingly for such costs, without any other or further taxation thereof, nor shall it be necessary that any writ of execution issuing out of any such Inferior Term or Circuit Court be signed or indorsed by any Justice or Circuit Judge; any law, usage or custom to the contrary notwithstanding.

Opposition on

Writs de tonis how to be dealt

Bailiff's duty

on receiving such opposi

tion.

LII. And be it enacted, that if any opposition be made to the execution of any writ de bonis issued from any Circuit Court, such opposition shall be made returnable either to the same Circuit Court at the then next term thereof, or to the with. Court of Queen's Bench for the District at the Inferior Term thereof, next after the day on which the opposition shall have been allowed, if such Inferior Term be nearer to the said day, there to be heard and determined; and when such opposition shall have been made returnable into the said Court of Queen's Bench in Inferior Term, the said Court shall have power, if it deem it necessary, to order the removal of the record in the original suit or action from the Circuit Court, into the Court of Queen's Bench, and such removal shall be made in the manner hereinbefore provided for the removal of records in similar cases; and the Bailiff charged with the execution of the writ shall, immediately after he shall have been served with a true copy of the said opposition, return the same and the writ with his proceedings thereon, to the Court to which the opposition shall have been so made returnable; and when final Judgment shall have been given on any such opposition in the Inferior Term of the Court of Queen's Bench, the writ of execution and all proceedings thereon, with a true copy of the said Judgment, (and the record in the original suit or action, if it shall have been removed) shall be remitted to the Circuit Court, in which further proceedings shall thereupon be had, as to law may appertain Provided always, that the fiat or order to stay proceedings upon such writ de bonis in consequence of any such opposition, and to make such opposition returnable as aforesaid, may be made by any Justice of the Court of Queen's Bench, or Circuit Judge in and for the District, although he be not then within the limits of the Circuit, or by the Clerk or Prothonotary of the Circuit Court, and to that effect, such Justice, Circuit Judge, Clerk or Prothonotary, is hereby authorized to administer all oaths in such cases required by law.

LIII. And be it enacted, that the said Circuit Courts, respectively, and the Chief Justice, Justice or Circuit Judge holding the same, as well in Court as out

of

whom the fiat

Proviso-by

to

stay proceedings on the

opposition may be granted.

Circuit Courts holding them

and Judges

powers in ma

despatch.

Circuit Judges

to have con

current powers

with the Jus

to have certain of Court, in Term or out of Term, or in Vacation, shall have and may exercise ters requiring Within the said Circuits, respectively, the same powers and authority as are vested in any Court of Queen's Bench, and the Justices thereof, in what respects the election and appointment of Tutors and Curators, and the taking of the counsel and opinion of relations and friends in cases where the same are by law required to be taken, the closing of inventories, attestation of accounts, insinuations, af fixing and taking off seals of safe custody, and other acts of the same nature requiring despatch; and the proceedings in all such cases shall form part of the records of the Circuit Court for the Circuit in which they shall be had; and the Circuit Judges in and for the Districts of Quebec and Montreal, shall have and may exercise in and for the said Districts, respectively, the same powers and authority with regard to the said matters as are vested in the Justices of the Court of Queen's Bench for the same District, and may exercise the same concurrently with such Justices, at the places where the said last named Courts are respectively held, but the proceedings shall then form part of the Records of the Court of Queen's Bench for the District in which they shall be had: Provided always, that the appointments and orders made by any such Chief Justice, Justice, or Circuit Judge, under the authority of this section, shall be liable to be set aside by the Court of Queen's Bench for the District, in the manner and under the provisions of law, in and under which appointments and orders of like nature made by a single Judge might be set aside, immediately before the time when this Act shall come into force.

tices of Q. B.

in such matters, in Que

bee and Mon

treal.

Proviso.

LIV. And be it enacted, that in any suit or action to be brought against any person who shall have left his domicile in Lower Canada, or against any person who shall have had no domicile in Lower Canada, but shall have personal or real estate in the same, it shall be lawful for the plaintiff, if no curator be appointed in the ordinary course of law to represent such person, to summon and implead such person, by a writ issued, in the usual way, out of the Court of Queen's Bench, or out of any of the Circuit Courts in and for the District or Circuit wherein such person may have had his domicile, or where such property may be situate; and that upon the return of the Sheriff or of the Bailiff to the writ, that the defendant cannot be found in the said District or Circuit, it shall be lawful for the Court to order that the defendant shall, by an advertisement, to be twice inserted in the English language in any Newspaper published in that language, and twice in the French language in any Newspaper published in that language, in Lower Canada, be notified to appear and answer such suit or action, within two months after the last insertion of such advertisement; and that upon the neglect of the defendant, to appear and answer to such suit or action within the period aforesaid, it shall be lawful for the plaintiff to proceed to trial and judg ment as in a case by default.

Manner in which a Les

sor's privilege is to be exerperty seized in execution.

cised on pro

LV. And be it enacted, that in all cases of the taking of goods and chattels in execution, by virtue of a writ issuing out of any Court of Queen's Bench or Circuit Court, wherein a Lessor may claim a privilege or lien for rent, it shall not be lawful for such Lessor to prevent the sale of such goods and chattels by opposition, but it shall be lawful for him to deliver to or lodge with the Sheriff or the Bailiff who shall have seized such goods and chattels, his opposition afin de conserver, either before or after the sale, and if the same be so delivered or lodged before the sale, the Sheriff or Bailiff shall nevertheless proceed to the sale of the goods and chattels by him seized, and make his return thereof; and upon such return, the Lessor shall have his privilege or lien upon the proceeds of the sale of such goods and chattels and be collocated accordingly; any law, usage or custom to the contrary notwithstanding: Provided always, that when any such opposi- Proviso. tion, or any other opposition afin de conserver upon monics levied by virtue of a writ de bonis, issued from the Inferior Term of any Court of Queen's Bench, or from any Circuit Court, shall be delivered to and lodged with the Bailiff, before he shall have paid the proceeds of the sale to the party suing out such writ, it shall be the duty of the Bailiff forthwith to make his return of the said writ according to law, and to pay over into the hands of the Clerk or Prothonotary of the Court from which the writ shall have issued the proceeds of the sale, to abide the judgment of the Court.

LVI. And be it enacted, that it shall be lawful for any Chief Justice or Justice of any Court of Queen's Bench, holding any Circuit Court, when and so soon as lists of Jurors shall have been legally made out for that purpose, and the requisite provisions of law in that behalf enacted, to preside during the holding of any such Circuit Court, at the trial of the issue in any suit or action brought before such Court of Queen's Bench, in Superior Term, and by the same ordered, according to law, to be tried before a Jury, and to receive the verdict of such Jury, and to return the same into such Court of Queen's Bench, to be by the said Court proceeded upon according to law.

Trials by Jury Q. B, in superior term may certain

in cases before

hereafter in

cases

be ordered by B. to be taken

Courts of Q.

before Circuit Courts.

Fees in infe

rior term and Courts to be

in

Circuit

as per Schedule.

LVII. And be it enacted, that in all actions and proceedings in the said Circuit Courts, and in the Courts of Queen's Bench, in Inferior Term, respectively, the fees specified in the Schedule (B) to this Act subjoined, shall be deemed and taken to be the lawful fees for the discharge of the several duties therein mentioned; and no other fees or emoluments shall be received or taken upon any pretence whatever, for any act done or service performed under the authority of this Act; and if any officer or person shall receive any other or greater fee, or emolument than is specified in the said Schedule for any of the duties aforesaid, or for any act done or service performed as aforesaid, he shall forfeit the sum of taking higher twenty pounds Currency, for each such offence, which penalty shall and may be

R

recovered

fees.

Penalty for

A copy of the
Schedule to be

posted where
the Court is

held, &c.

Governor to appoint Clerks of Circuit Courts.

Deputy.

Clerk or his

recovered by civil action, in any Circuit Court, or in any Court of Queen's Bench in Inferior Term; and one half of such penalty shall belong to Her Majesty, Her Heirs and Successors, and the other half thereof to the person who shall sue for the same.

LVIII. And be it enacted, that the Clerk or Prothonotary of any Court of Queen's Bench, or of any Circuit Court, shall cause to be continually and openly posted as well in his office, as in some conspicuous place in the hall or apartment in which such Circuit Court, or the Inferior Term of such Court of Queen's Bench shall be held, a fair and legible copy of the Schedule of fees herein-before mentioned, and a notice of the penalty to which any person will become liable for receiving any other or greater fee than is set forth in the said Schedule; and in default of so doing, shall be deemed and held to be guilty of a misdemeanor, and be liable to be punished accordingly.

LIX. And be it enacted, that it shall be lawful for the Governor of this Province, to appoint from time to time, a Clerk or Prothonotary for each of the said Circuit Courts; and every such Clerk or Prothonotary as well as the Clerk or Prothonotary of any Court of Queen's Bench, appointed or to be hereafter appointed, shall have power, by an instrument under his hand and seal, to appoint a Deputy who shall act as such only in case of the absence or sickness of such Clerk or Prothonotary; and such instrument shall be entered at full length in the Register of the Court; Provided always, that it shall be lawful for the Clerk or Prothonotary, at all times, to remove such Deputy, and to appoint another in his place.

LX. And be it enacted, that no Clerk or Prothonotary of any Court, shall during Deputy not to his continuance in office, nor his Deputy while performing the duties of the office, practice as an Advocate, Proctor, Solicitor or Attorney, or as Counsel in any Court of Law in Lower Canada.

practice as Attorney, &c.

LXI. And be it enacted, that each Clerk or Prothonotary of any Court of Queen's Bench or Circuit Court shall, within three months after his appointment, if he be appointed after this Act shall be in force, and within three months after this Act shall come into force, if he shall have been appointed before it shall be in force, give security for the due performance of the duties of his office, and for duly accounting for and paying all monies which shall come into his hands by virtue of his office, by a bond to be given by him jointly and severally with good and sufficient sureties, which bond shall stand and be as and for a security to the amount thereof, for the damages which may be sustained by any party by reason of the negligence or misconduct of such Clerk or Prothonotary, and the amount for which such bond shall be given, shall be as follows, that is to say :-by the Prothonotary

or