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XXI

AN ORDINANCE FOR THE MORE EFFECTUAL ADMINISTRATION OF JUSTICE, AND FOR REGULATING THE COURTS OF LAW IN THIS PROVINCE, 1770

[Trans. Shortt and Doughty.]

Whereas it has been found by Experience, that the several Provisions contained in an Ordinance, bearing Date the Seventeenth Day of September One thousand, seven hundred and Sixty four, and intituled, amongst other Things, “An Ordinance for regulating and establishing the Courts of "Judicature", by virtue of which certain Powers and Authorities are given to the Justices of the Peace for this Province, as well separately as collectively, to hear and determine in matters of private Property between Party and Party, instead of answering the good purposes for which they were ordained, have become an intolerable Burthen to the Subject, and proved the means of great Disquiet, Vexation, and Oppression.

It is therefore Ordained and declared, by His Excellency the Captain General, and Governor in Chief of this Province, by and with the Advice and Consent of the Council of the same, That from and after the day of the Date of the Publication of this Ordinance, all Jurisdiction, Power and Authority in Matters of Private Property, belonging to or exercised by any Justice or Justices of the Peace for this Province, or any District, Part or Member of the same, except Such as have already procured, or hereafter may procure a Special Commission for that Purpose, under the Hand and Seal of the Governor, or Commander in Chief for the Time being, shall be clearly annulled, taken away, and determined; and that from and after the day of the Date of the Publication, aforesaid no Justice or Justices of the Peace, except as before excepted, shall have any Power or Authority to hear, examine or determine any Matter of Private Property between Party and Party, or to make, pronounce, or deliver any Judgment, Sentence, Order, and Decree, or to do any Judicial Act whatsoever touching the same.

And it is further Ordained and declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, the following Clauses or Parts of an Ordinance, bearing Date the Seventeenth day of September One thousand, seven hundred and sixty-four, and intituled, amongst other Things, "An Ordinance for regulating and establish"ing the Courts of Judicature" shall be repealed, and the same are hereby repealed and absolutely revoked and made void; that is to say, "And "Whereas it is thought highly necessary for the Ease, Convenience, and "Happiness of all His Majesty's loving Subjects, that Justices of the Peace "should be appointed for the respective Districts of this Province, with "Power of determining Property of small Value in a summary way; it is "therefore further ordained and declared by the Authority aforesaid, and "full Power is hereby given and granted to any one of His Majesty's "Justices of the Peace within their respective Districts, to hear and finally "determine in all Causes or Matters of Property, not exceeding the Sum "of Five Pounds Current Money of Quebec; and to any Two Justices of "the Peace within their respective Districts, to hear and finally determine, "in all Causes or Matters of Property not exceeding the Sum of Ten "Pounds said Currency; which Decisions being within, and not exceeding "the aforesaid Limitation, shall not be liable to an Appeal: And also full "Power is by the Authority aforesaid given and granted to any Three of "the said Justices of the Peace to be a Quorum, with Power of holding Quarter Sessions in their respective Districts every Three Months, and "also to hear and determine all Causes and Matter of Property which shall be above the sum of Ten Pounds, and not exceeding Thirty Pounds, "Current Money of Quebec, with Liberty of Appeal to either Party to the "Superior Court or Court of King's Bench;" and all and every other Ordinance or Ordinances, and all and every Article, Clause or Sentence, in them and every of them, by which any Jurisdiction, Power, or Authority,

to hear and determine in Matters of Private Property between Party and Party, is given, limited and Appointed to any Justice or Justices of the Feace, for so much as concerneth the same, shall also be repealed, and the same are hereby repealed, and absolutely revoked and made void.

And it is further ordained and Declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, if any Justice or Justices of the Peace, or any other Person whatsoever, shall offend or do anything contrary to the Purport, true Intent, and Meaning of this Ordinance, he or they so offending, besides being liable to answer the same in a Criminal way, Shall also forfeit and lose, unto the Party grieved by any Thing so done, his, her, or their treble Damages, which he, She, or they shall sustain and be put unto by means or Occasion of any Thing so done as aforesaid; the same to be recovered in any of the Courts of Record in this Province, by Action of Debt, or in any other way, and Manner, according to the known and Established Practice of the Court in which such Action shall be brought.

Provided always, That nothing contained in this Ordinance shall extend, or be construed to extend, to take away, determine, or abridge any of the Powers given and granted to any Justice or Justices of the Peace for this Province, by Virtue of His Majesty's Commission of the Peace to them directed, or to restrain or hinder them in the exercise of any other Powers to them limited and appointed by any other Ordinance or Ordinances, save and except such as relate to the Administration of Justice in Matters of private Property, between Party and Party only: but such Justice or Justices of the Peace is and are hereby further authorized and required to do and execute all and every matter or Thing to him or them enjoined by Virtue of the said Commission of the Peace, and also to hear and determine all Penalties and Forfeitures arising from the Breach of any Ordinance or Ordinances, and to proceed therein in the same Manner as he or they would have done if this Ordinance had not been made.

And provided also, That nothing herein contained shall extend, or be construed to extend to reverse, alter, or suspend any Judgment or Judgments already pronounced or given by any Justice or Justices of the Peace, upon which no execution has yet been Awarded; or to supersede, vacate. alter, or suspend any Writ or Writs of Execution already awarded, and not yet returned; but the said Justice or Justices of the Peace is and are hereby further authorized and required to award Execution upon such Judgments already pronounced and given, and the Provost Marshal is hereby authorized and required to enforce the same, and also to proceed upon such Writs of execution as are already awarded and not yet returned, and to levy the Debt and Costs and make such Return to the Justice or Justices awarding the same, as he would have done before the Publication of this Ordinance.

And whereas the providing an Easy, plain, and summary Method of proceeding for the Recovery of small Debts, with a due Regard at the same Time to a certain Degree of Solemnity and Deliberation, which ought ever to accompany the Administration of Public Justice, very much contributes to promote Industry, and to support and Encourage useful Credit:

It is therefore ordained and declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, all Manner of Disputes and Differences between Party and Party for any Sum not exceeding Twelve Pounds Currency of this Province, except as is hereinafter excepted, shall be heard, tried, and adjudged before the Judges of the Courts of Common Pleas for the Time being only, who are hereby authorized and required to take Cognizance thereof, and the same to hear adjudge and finally determine as to them shall seem just in Law and Equity, any Ordinance or Ordinances, or any Clause, Matter or Thing in them or any of them contained, to the contrary hereof in any wise notwithstanding.

And whereas some Inconveniences have arisen from the present Practice of adjourning the Court of Common Pleas from Quebec to Montreal and from the want of a fixed, settled, and Established Court for the hear

ing and determining all matters arising within the District of Montreal, before Judges specially appointed for that District, and constantly residing within the same;

It is further Ordained and Declared, by the Authority aforesaid, That from and after the Day of the Date of the Publication of this Ordinance, the Court of Common Pleas, heretofore held by Adjournment at different Days and Times in the Town of Montreal, and considered and taken to be a Part or Member of the Court of Common Pleas established at Quebec, shall be, and it is hereby constituted a Court of Record, with Original Jurisdiction of its own, independent of, and no wise connected with the Court of Common Pleas established at Quebec, which Court of Common Pleas for the District of Montreal shall, for the future, be held before Judges constantly residing within the said Town of Montreal, who shall have the same Power and Authority, and the same is hereby given and granted to them to hear and determine within the District of Montreal and to award Execution, and to do and execute all and every Matter or Thing touching the Administration of Justice, in as full and ample a manner as is now or has at any Time been used, practised, or done by the Court of Common Pleas established at Quebec, in and for the District of Quebec: And that from and after the Day of the Date of the Publication aforesaid the said Court of Common Pleas in the Town of Quebec, and the said Court of Common Pleas in the Town of Montreal, shall be taken and adjudged to have each their separate Jurisdictions, independent of and unconnected with each other, that is to say, the said Court of Common Pleas at Quebec, in and over all matters and Things arising within the District of Quebec, and the Court of Common Pleas at Montreal in and over all matters and Things arising within the District of Montreal.

Provided always, and it is hereby further Ordained and Declared by the Authority aforesaid, that from and after the Day of the Date of the Publication aforesaid, where any Person or Persons, against whom Judgment shall be obtained in either of the said Courts of Common Pleas, shall not have any Lands, Goods, or Effects, wherewith to satisfy the said Judgment within the Jurisdiction of that Court wherein such Judgment shall have been obtained, but such Person or Persons shall have Lands, Goods, or Effects, within the Jurisdiction of the other Court of Common Pleas, that then and in that Case it shall and may be lawful for the Judge or Judges of the Court of the District in which such Judgment shall have been obtained to award Execution to the Provost Marshal of the District in which such Lands, Goods, or Effects shall be found, who shall, before he proceeds to do anything therein, carry the said Writ of Execution to one of the Judges of the Court of the District in which such Lands, Goods, or Effects shall be found, who is hereby authorized and required to endorse the same; which Writ of Execution, being so indorsed as aforesaid, the said Provost Marshal of the District in which such Lands, Goods, or Effects shall be found, shall proceed to levy the Debt and Costs, and make Return thereof, under his Hand and Seal to the Judge or Judges of the Court from whence such Writ of Execution was originally awarded; and such Writ of Execution together with the Return thereof, under the Hand and Seal of the Provost Marshal subscribing the same, shall be by him conveyed, so soon after the making and signing thereof, as conveniently may be, to the Provost Marshal of the District from whence such Writ was originally awarded, who is hereby authorized and required to deliver the same into the Court of Common Pleas from whence such Writ was originally awarded, on the First Court Day next after the coming of the said Writ and Return into his Hands; and the Judge or Judges of the said Court of Common Pleas, by whom such Writ of Execution was originally awarded, are hereby authorized and required to receive the same; and the same shall be as valid and effectual, to all Intents and Purposes, as if the Provost Marshal making and subscribing the same had himself been present, and delivered the same into the Court with his own Hands.

Provided, nevertheless, That the Provost Marshall executing the said Writ, and making Return thereof as aforesaid, only shall be answerable

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as well for the Truth of the said Return, as for any Misbehaviour, Omission, or Neglect in the manner of executing the said Writ, or making Return thereof before the Judge or Judges of the Court from whence such Writ of execution was originally awarded, and not before the Judge or Judges of the Court of the District to which he belongs:-And in case any Person or persons against whom such Judgment as aforesaid shall be obtained, not having any Lands, Goods, or Effects within the Province, wherewith to satisfy the said Judgment, shall usually reside without the Jurisdiction of the Court in which such Judgment shall be obtained, or being, at the Time of obtaining the said Judgment, resident within the same, shall alter his or their place of Residence, and withdraw his or their Ferson, or Persons from the Jurisdiction of the Court in which such Judg ment shall have been obtained, it shall and may be lawful for the Judge or Judges of the said Court in which such Judgment shall have been obtained, in all cases where such Writ may legally issue, to award a Writ or Writs of Capias ad Satisfaciendum to the Provost Marshal of the District in which such Person or Persons shall reside or be found, which Writ or Writs, being so indorsed as aforesaid, the said Provost Marshal of the District in which such person or persons shall reside or be found, shall proceed to execute the same, and to arrest the Body or Bodies of such Person or Persons, and him or them to convey to the Common Gaol of the District in which such Person or Persons shall be arrested, there to remain till the Debt and Costs are paid, or he or they be otherwise delivered by due Course of Law.

And in order to avoid the Delays and Inconveniences occasioned by the present practice of holding the said Courts of Common Pleas at certain fixed Times and Periods, according to the Directions of the aforesaid Ordinance of September One thousand, seven hundred and sixty-four, and to the Intent that the Judges of the said Courts may be enabled to give more speedy and effectual Relief in all Cases, as well where the matter or Thing in Demand shall exceed the Sum of Twelve Pounds, and where it falls short of or is equal to it; it is further Ordained and Declared by the Authority aforesaid-That from and after the Day of the Date of the Publication of this Ordinance, the said Courts of Common Pleas, as well at Quebec, as at Montreal, shall be constantly open to the Suitor, and they are hereby required to be kept open at all times throughout the Year, except on Sundays, and at Seed Time, a Month at Harvest, and a Fortnight at Christmas and Easter, and except during such Vacation as shall be from Time to Time appointed by the Judges for making their respective Circuits throughout the Province, Twice in every Year: and the Judges of the said Courts are hereby authorized and required to issue their Process, and to do and execute all and every other Matter or Thing touching the Administration of Justice, without Regard to Terms or any stated Periods of Time, as Limited and Appointed by the Ordinance of September, one thousand seven hundred and sixty-four, or any other Ordinance, custom or usage whatsoever, all and every of which Ordinance, or Ordinances, so far as they relate to the Sitting of the said Courts, or prescribe any Limitations of Time for that Purpose, are hereby annulled, revoked, and made Void, in as full and ample a manner as if they were herein particularly enumerated and set forth.

Provided always, and it is further Ordained and Declared by the Authority aforesaid, That the Judges of the said Courts of Common Pleas, as well in Quebec as in Montreal, shall appoint One Day in every week (except Sunday, or in such Vacation as aforesaid) at their Discretion for the hearing and determining all matters wherein the Cause of Action shall exceed the Sum of Twelve Pounds, which Day shall be declared at the rising of the Court on the Court day next preceding; and no Adjournment of the Court shall be made for any longer time than One Week, upon any Pretence or Ground whatsoever.

Provided also, That Friday in every week, except it be in such Vacation as aforesaid, shall be always a Court Day, as well in the Town of Quebec as Montreal, for the hearing and determining all Matters wherein the

Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid; on which Day one of the Judges of the said Courts of Common Pleas shall attend, as well at Quebec as at Montreal, for the Dispatch of Business, who is hereby authorized and required to proceed to hear and determine all matters where the Cause of Action shall not exceed the Sum of Twelve Pounds, in the Absence of the other Judge-such Judge being prevented from attending by Sickness, or any other Lawful and reasonable Cause of Excuse; and every Judgment, sentence, Order or Decree, given, made or pronounced, and every Writ of Execution awarded by such Judge, in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, shall be in all Respects as binding and valid as if both the Judges of the said Court had been present and concurred in giving, making or pronouncing such Judgment, or in awarding such Writ of Execution.

And, to the Intent that this Part of the Jurisdiction of the said Courts of Common Pleas, which attaches upon matters where the Value of the Thing in Demand does not exceed the Sum of Twelve Pounds, and the manner and Form of proceeding therein may be clearly comprehended, so as to enable the Party, either by himself or his Agent, to Prosecute his own means of Redress with Dispatch, certainty, and Moderation in Point of Expence; It is further Ordained and Declared by the Authority aforeThat from and after the Day of the Date of the Publication aforesaid, in all Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds Currency, no Process whatsoever shall issue against any Defendant or Defendants, until the Plaintiff or Plaintiffs, or his, her or their Agent or Agents shall have first produced and left with, or being unable to write or read, shall have first procured, from the Clerk of the Court in which such Action is intended to be brought, who is hereby ordered and required to make out the same, a Declaration either in English or French Language, according to the following Form.

Quebec

Montreal

Day of
A.B.-Plaintiff
C.D.-Defendant

The Plaintiff demands of the Defendant the Sum of

due to the Plaintiff from the Defendant, for

177

which Said Sum, though Often demanded, still remains due; therefore the Plaintiff demands Judgment.

Which Declaration, being so produced to and left with, or so as aforesaid made out by the Clerk of the Court in which such Action is intended to be brought, shall be filed by the Said Clerk with the other Records of the Court, and the said Clerk shall immediately make out an attested Copy thereof, and upon the back of such Copy Indorse a Summons, to which he shall procure the name of One of the Judges of the said Court to be set, commanding the Defendant either to pay the Debt and Costs to the Plaintiff, or else to appear upon some subsequent Court Day, according to the Discretion of the Judge who signs the same, Regard being had to the Distance of the Defendant's Place of Residence, and the means of Communication therewith, which Summons shall be in the following Form. To C. D. the Defendant in this Action. •

You are hereby commanded and required to pay to the Plaintiff the within named Sum of together with Costs, or else to be and appear, either in Person, or by your Agent, before me at the Court House of the Town of Quebec/Montreal, together with your Witnesses. if any you have, on on which Day the Matter of Complaint against you, as contained in the within Declaration, will be heard and finally determined, otherwise Judgment will be given against you, by Default in this Action.

Day of

E. F., Judge of the Court of Common Pleas.

And this Attested Copy of the Declaration, together with the Writ of Summons, indorsed and signed as aforesaid (for all which the Clerk of

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