and that you do not allow any Establishment to be made, but with their consent, within the limits of their possessions.

38. By Our Commission to you under Our Great Seal of Great Britain you are authorised and impowered, with the advice and consent of Our Council, to settle and agree with the Inhabitants of Our said Province of Quebec for such Lands, Tenements, and Hereditaments, as are now, or shall, hereafter be in Our Power to dispose of. It is therefore Our Will and Pleasure that all Lands, which now are, or hereafter may be subject to Our Disposal, be granted in Fief or Seigneurie, in like manner as was practised antecedent to the Conquest of the said Province; omitting however in any Grant, that shall be passed of such Lands, the Reservation of any Judicial Powers, or privileges whatever. And it is Our further Will and Pleasure that all Grants in Fief or Seigneurie, so to be passed by you, as aforesaid, be made subject to Our Royal Ratification, or Disallowance, and to a due Registry thereof within a limited time, in like manner as was practised in regard to Grants and Concessions held in Fief and Seigneurie under the French Government.

XXX

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

[Trans. Shortt and Doughty.]

February 25, 1777.

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 residing in different Parts of this Province, the same shall be and hereby is 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 St. Maurice on the North side of the River St. Lawrence.

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 each of the said Districts, the one whereof shall sit at the City of Quebec, and the other at the City of Montreal, at least one Day in every week, for the decision of Causes in which the Value of the matter in Dispute shall exceed Ten Pounds Sterling; and another Day in every week for the Decision of Causes in which the matter in Dispute shall be of or under the Value of Ten Pounds Sterling, and shall so continue their Sittings throughout the whole Year, excepting Three Weeks at Seed Time, a Month at 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 Pro"vision for the Government of the Province of Quebec, in North "America," and such Ordinances as may hereafter be passed by the Governor and Legislative Council of the said Province.

Art. 3. In matters above the Value of Ten Pounds Sterling, the Presence of Two Judges shall be necessary to constitute a Court of

1 This Ordinance and the two following are the outcome of sections 14 and 15 of Carleton's Instructions, 1775 (see No. XXIX).

Common Pleas; the Decision of which Court shall be final in all cases where the matter in Dispute shall not exceed the Value of Ten Pounds Sterling, except in matters which may relate to taking or demanding any Duty payable to His Majesty, or to any Fee of Office, or Annual Rents, or other such like matter or Thing, where the Rights in future may be bound, in which Cases, and also in all Matters that exceed the said Value of Ten Pounds Sterling, an Appeal shall lie to the Governor and Council; provided Security be duly given by the Appellant, that he will effectually prosecute the same, and answer the Condemnation; as also pay such Costs and Damages as shall be awarded, in case the Judgement or Sentence of the Court of Common Please shall be affirmed.

Art. 4. The Governor and Council are hereby erected and constituted a Superior Court of Civil Jurisdiction (whereof in the absence of the Governor and Lieutenant the Chief Justice shall be President) for hearing and determining all Appeals from the inferior Courts of Civil Jurisdiction within the Province, in all cases where the matter in Dispute shall exceed the Sum of Ten Pounds Sterling, or shall relate to the taking or demanding any Duty payable to His Majesty, or to any Fee of Office or Annual Rents, or other such like Matter or Thing, where the Rights in future may be bound, though the immediate Sum or Value appealed for be less then 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 Court below ought to have given, and on Judgment to award and issue such Execution as the Law shall direct.

Art. 5. The Judgment of the said Court of Appeals shall be final in all cases where the matter in Dispute shall not exceed the Value of £500 Majesty in His Privy Council, provided security be first duly given by Sterling; but in all cases exceeding that Value, an Appeal shall lie to His the Appellant, that he will effectually prosecute his Appeal, and answer the Condemnation, as also pay such Costs and Damages as shall be awarded by His Majesty in His Privy Council, in case the Sentence of the said Court 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 demanding any Duty payable to His Majesty, or to any Fee of Ofice, or Annual Rents, or any such like matter or Thing, where the Rights in future may be bound, though the immediate Sum or Value appealed for be less than £500 Sterling; and in all cases where Appeal shall be allowed to His Majesty in His Privy Council, Execution shall be suspended until the final determination of such Appeal, provided Security be given as aforesaid.

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 Scand.

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 Ordicance, 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, shall be transmitted to the Courts of Common Pleas hereby established

for the respective Districts, to be proceeded upon to Judgment, as if the same had been commenced therein; and also all Matters remaining undetermined in any Court of Appeals heretofore subsisting in this Province shall be forthwith transmitted to the Court of Appeals hereby established, to be proceeded upon therein to Judgment and Execution.

February 25, 1777.

GUY CARLETON.

XXXI

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

OF QUEBEC.

[Trans. Shortt and Doughty.]

February 25, 1777.

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 of £10 Sterling, upon a Declaration presented to any one of the Judges of the Court of Common Pleas, by any Person, setting forth the Grounds of his Complaint against a Defendant, and praying an Order tc Compel 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 leaving the Province, whereby the Plaintiff might be deprived of his Remedy against him; it shall be lawful for the said Judges, or any Two of them, to grant an Attachment against the Body of such Defendant, and hold him to Bail, and for Want of Bail to commit him to Prison until the Determination of the Action against him: The Declaration shall in all cases 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.

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 insufficint.

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 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 reward 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 Sum

mons, or, having made Default on that Day, pays such Costs as the Court may think reasonable, and appears on the next Weekly Court Day after such Return, 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 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 Pleadings as the Court may, if it thinks proper, permit or direct, the Parties shall appear to differ essentially in their State of Facts, the Court shall ascertain and order the Clerk to take down in Writing, such Facts, material to the Decision of the Cause as it will proceed to receive Proof upon, and appoint a Day for hearing such Proofs as the Parties shall think proper to produce.

Art. 6. In all Cases where Witnesses are produced they shall be examined and Cross Examined, viva voce, in open Court, unless some good Reason is shewn to the Judges for departing from this Rule in particular Cases. The Examinations of the Witnesses shall be taken down in Writing by the Clerk, and filed among the Records of the Court.

Art. 7. In the Proof of all Facts concerning Commercial Matters Recourse shall be had in all the Courts of Civil Jurisdiction in the Prov. ince, to the Rules of Evidence laid down by the English Laws'.

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, tested and signed by the Governor, Lieutenant Governor, or Chief Justice, stating that the Appellant complains of being aggrieved by 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 Transcrips of all Rules, Orders and Preceedings 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.

Art. 9. If the Appellant does not within Eight Days after the Return of the said Writ, and the Transmission of the proceedings, file his Reasons of Appeal, the Appellee shall obtain a Rule or Order, that unless the Appellant'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.

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 Appellant shall obtain a Rule or Order, that unless the Appellee file his Answers 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 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.

Art. 11. The said Court of Appeals nevertheless shall and may, upon Application made, and good Cause shewn by either of the Parties (Notice being given the other) prolong the Time allowed for filing either the Reasons 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 1 Compare for this policy Carleton's Instructions, 1775, Section 12 (No. XXIX).

K

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, the Court shall on the Application of either of the Parties, fix on such convenient Day for the hearing of the Cause as to it may seem proper.

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 Execution sued out from any of the Courts of Civil Jurisdiction shall be a Writ issuing in the King's Name, tested and signed, when issuing from the Court of Appeals, either by the Governor, Lieutenant Governor, 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, 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.

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 Proceeds thereof fall short of the Amount of the Judgment the Real Estate or so much thereof, as will produce the Amount shall be sold for that purpose.

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 is 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 preceeding 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 Judgments given the same Day against the same Defendant or Defendants, and so marked on the Writs, such Executions shall have the same Privilege and be satisfied in the same Proportions, and the Sheriff, or other Person to whom such Writs of Execution shall be Awarded, receiving the same, is hereby authorized and Commanded, after the sale of the whole of such Defendant's Real and Personal Estate, where the Writ shall be awarded against both, in case the same should not be sufficien to satisfy the whole of such Judgments, to pay over and divide the Nett Produce of such sale or Sales, after deducting his own Costs and Charges, amongst the several Plaintiffs, in Proportion to the Amount of their respective Judgments.

Art. 19. On every Execution the Sheriff shall be allowed all his Disbursements, and shall be authorized to charge over and above at the Rate of Two and an Half per centum, to be deducted out of the Money he Levies.

Art. 20. Proceedings in Actions under £10 Sterling. In Matters either