Affidavit re what effect, executed accordingly, subject to the provisions hereinafter made: But no plaintiff in any such case, either in the Superior or quired and to in the Circuit Court, founded upon an account stated or and by whom. upon a verbal agreement, shall be entitled to inscribe the same for judgment as aforesaid, unless such plaintiff do at the time of so inscribing the case, file an affivavit in the form of the Schedule A or B (as the case may be) to this Act, wherein such plaintiff or one of the Plaintiffs (if there be more than one,) or some other credible person cognizant of the fact, (whether competent or not as a witness in the case,) shall swear that the amount demanded is due by the defendant to the plaintiff ;---the affidavit of one person that the whole amount is due to his knowledge shall be sufficient, but several affidavits of several persons, each of whom shall swear that a certain part of such amount is due to his knowledge, shall also be sufficient, provided the total amount of the sums so sworn to be equal to that for which judgment is prayed :-- May be made by more than -one person in certain cases. Before whom to be made. Judgment to be served on defendant. Opposition may be filed to any such judgment; And within Any affidavit under this section may be made before a Judge of the Superior Court, or before the Prothonotary or Clerk of the Superior or Circuit Court at the place where the case is pending, or before any Commissioner for receiving affidavits to be used in the Superior or Circuit Court. 12. Every judgment recorded under the next preceding section shall be served upon the defendant personally or at his domicile, by a Bailiff of the Superior Court, and the Bailiff's return of such service shall be filed and remain of record as part of the proceedings in the case ;---and the Prothonotary or Clerk of the Court shall enter and register as part of the said proceedings, the date at which such return shall be filed. 13. The defendant in any such case may contest the judgment (se pourvoir contre le jugement) recorded as aforesaid, by opposition or simple requête afin d'opposition, to be filed in the office of the Prothonotary or Clerk of the Court in which the judgment was rendered, within the periods hereinafter limited respectively, that is to say: If the place where such service is made be not more than five what delay. leagues from that where the judgment was rendered, then-- Within ten days after the service of the judgment, if the case be in the Superior Court, and-- Within five days after the service of the judgment, if the case be in the Circuit Court,- And if the place where the service is made be more than five leagues from that where the judgment was rendered, then an additional additional delay of one day shall be allowed in either Court, for each additional five leagues. slate. Such opposition or simple requéte afin d'opposition shall, on pain what the op of nullity, contain all the grounds (mogens) of opposition in- position must tended to be urged in support thereof, or against the judgment, or the action in which it was rendered, and an election of domicile by the opposant within one mile of the place where the sittings of the Court are held ;---and all the exhibits intended Exhibits to be to be used in support of such opposition, shall be filed with it, filed with it. all averments Any fact alleged by the Plaintiff and not expressly and Opposant must specially denied by the opposant, shall be deemed to be con- exp essly deny fssed and acknowledged by him; and the Plaintiff' shall be which he inbound to prove in due course of law such facts and such only tends to couas being alleged by him are expressly and specially denied by test. the opposant. and certain 14. No such opposition shall be received by the Protho- Affidavit must notary or Clerk, unless it be accompanied with an affidavit of the be filed with opposant (or one of the opposants if there are more than one,) the opposition, or of some other credible person, that the facts stated in the costs deposit opposition are true to the personal knowledge of the deponent,--- ed. nor unless the opposant shall deposit with the Prothonotary or Clerk, a sum suflicient to pay the costs (or proportion of the costs) incurred by the plaintiff after the return of the suit up to judgment, including the costs of the service thereof, which costs shall be paid to the plaintiff by the Prothonotary or Clerk as soon as they have been taxed, without regard to the issue of the case: Any affidavit under this section may be in the form of Schedule Before whom C to this Act, and may be made before a Judge of the Superior affidavit to be Court, or before the Prothonotary or Clerk of the Superior or Circuit Court at the place where the opposition is to be filed, or before any Commissioner empowered to receive affidavits to be used in the Superior or Circuit Court. made. plaintiff. 15. No such opposition or requête shall be received by Copy of oppothe Prothonotary or Clerk, unless a copy thereof for the plain- sition to be till be delivered to him at the same time, which copy he shall file deliver to the plaintiff or his Attorney on demand; but one copy only need be so filed, although the party plaintiff should consist of two or more persons. ceedings in 16. The opposition and all proceedings thereon shall be Opposition to filed and registered as part of the proceedings in the original be put of prosuit, and the plaintiff' shall be deemed to appear to such oppo- the suit, &c. sition or requèle in the same manner as he has appeared in the original suit, without any new appearance. 17. The delays for pleading, answering and replying Delays for as regards such opposition, and the manner and time of fore- pleuling to closing and proceeding in every matter incident thereto, shall, opposition, &c. Fees on such oppositioas a pre ings insideat thereto. Execution, tion be tiled in time. if the case be in the Superior Court, be the same as in an action in that Court,---if the case be an appealable one in the Circuit Court, they shall be the same as in an action in any such case,---and if the case be a non-appe ilable one in the said Coart returnable in vacation, they shall be the same as in an action in such case the delay to plead to any such opposition shall reckon from the expiration of the delay allowed for tiling the opposition;---A tariff of fees on such oppositions or proceedings incident thereto, may be made from time to time in like manner as in other cases, but until such tariff is mide, the tariff applicable to the action to which the opposition relates, shall be applicable to proceedings incident to such opposition. 18. If no opposition be filed at the Ofe of the Prothoif no opposi notary or Clerk, within the delay allowed for that parpose, the facts as alleged in the action or demand, shall be deemed to be acknowledged and confessed by the defendant, and duly proved, and the Judgment recorded shall become execatory after the expiration of the delay allowed by law for the issuing of execution in the Court in which the Judgment was rendered, reckoning such delay from the service of such Judgment. If the opposition is maiu Lained. As to opposi- Opposition may be filel before service of the julg ment. Noticedelays. Plaintiff may re once his ju lg nent and proceel by det as usual. 19. If any such opposition be maintained by reason of any irregularity in the proceedings on the part of the Plaintiff in his action, the Coart may, in maintaining such opposition, with costs, con lemn the Plaintiff to such further costs, not exceeding those deposited by the opposant on filing his opposition, as the Court in its discretion may see fit. 20. Any such opposition filed in the Circuit Court in the Circuit of the Magdalen Islands, to any Judgment rendered in any case by default or ex parte for an amount exceeding Fifty Pounds, shall, as regards pleading, answering and replying and the delays the efor, and as to all proceed.ngs incident to such opposition, he considered as an appealable case in the Circuit Court. 21. Any defendant may, before the service of the judgment recorded against him, file such opposition as aforesaid with his exhibits in support thereof, in the office of the Prothonotary or Clerk of the proper Court, and deposit there with the costs to be refunded to the plaintiff, with the copy of the opposition for him; but such defendant shall, in that case, give notice to the plaintiff of the day on which the opposition has been filed,and the delay for pleading shall be reckoned f.om the service of such notice. 22. Any plaintiff having obtained any such judgment may renounce the same at any time before the service thereof,---and apon his renunciation, which shall be filed of record, he shall become entitled to proceed in the case in the manner provided with 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. 23. No such judgment shall be recorded against any Not to apply to absent defendant who shall have been notified to appear by absentees calladvertisement in the public newspapers. ed in by advertisement. 24. The delay for appealing in any case in which judgment Delay for apmay have been recorded as aforesaid by default, and in which peal in such an appeal may lie, shall be reckoned from the expiration of cases. the time allowed for filing an opposition to such judgment. 25. In any such case in which an appeal shall be brought,-- Special pro visions with regard to 1. It shall not be allowed as a valid ground of appeal, that grounds of apthe amount for which judgment was given was not proved to peal in such be due, according to the rules of law concerning evidence,--and-- cases. 2. If in any such case the action was founded on an Acte Case on Acte authentique, the amount for which the judgment was given, authentique. shall be held to have been proved to be due, if it could have been due under such Acte, and-- 3. If in any such case, the action was founded on a Bill of Case on Notes, Exchange, Promissory Note, Cédule, Check, Note or promise, Bills, &c. or other private act, or agreement in writing, such Bill, Note, Check, Cédule, act or agreement in writing, and every signature and writing to or upon the same, shall be deemed genuine without proof thereof,---and any protest, notice or service thereof, if any be alleged by the Plaintiff, shall be presumed to have been regular and valid, and the costs thereof (if any are claimed) shall be presumed to be due and proved; 4. If in any such case the action was founded upon a On account or detailed account or on a verbal agreement, the amount claimed agreement. shall be presumed to have been duly proved by the affidavit of the plaintiff, or other person, that such amount was due from the defendant to the plaintiff, filed of record as hereinbefore provided. ments from 26. The hypothec arising from any such judgment as afore- Hypothec unsaid, shall be reckoned from the time when the return of the der such judg service of such judgment on the defendant shall be filed in the what time to office of the Prothonotary or Clerk of the proper Court, who be reckoned. shall register such return as part of the proceedings in the case; And in order to enable the plaintiff to have such judgment Registration registered in the proper Registry Office, the said Prothonotary of such judg or Clerk, in addition to the usual certificate on the 2* copy of the ment, &c. Registration favour of the judgment that it is a true copy thereof, shall, if required, 27. In case any such Judgment so registered shall be of judgment in wholly or partially set aside, upon any such opposition as defendant on aforesaid, the opposant shall be entitled to have the judgment to that effect on his opposition registered for the purpose of wholly or partially cancelling the registration of the former judgment recorded against him. opposition. Plaintiff not ceed under 28. The foregoing provisions shall not deprive any Plaintiff bound to pro- of the right to proceed to judgment in the usual manner, in any case by default or ex parte, if he shall think fit so to do, instead of adopting the proceedings mentioned in the said provisions. this Act. Non-appealable cases. Every day to be a return day. No change as to non-appeal able cases returnable in term; Except in Magdalen Islands. As to nonappealable cases return tion. 29. Every day in term or in vacation, not being a Sunday or Holiday, shall be a return day in non-appealable cases in the Circuit Court. 30. Except only in the Circuit of the Magdalen Islands, as to which special provision is made in this Act and in the Lower Canada Judicature Act of 1857,---every such non-appealable case in which the Writ of Summons is made returnable in term, shall be dealt with and continue to be dealt with in the manner provided as to such cases by the Lower Canada Judicature Act of 1849, chapter thirty-eight. 31. In every such non-appealable case in which the Writ of Summons is made returnable in vacation, the defendant able in vaca- may, on the return day or on the next following juridical day, file his appearance personally or by Attorney,---the pleadings shall be in writing but in a summary form, and the delay for pleading shall be five clear days from the time allowed for such appearance there shall be a like delay of five clear days. for answering, to be reckoned from the expiration of the delay allowed for pleading,---and there shall be also a like delay of five clear days for replying, to be reckoned from the expiration of the time allowed for answering :-- Delay for pleading, &c. Proviso: no demand of plea, &c, re Provided always, that no demand of any plea, answer or reply, shall be necessary in any such case, in order to foreclose the quired in or- party entitled to file the same; but the party entitled to file any plea, answer or reply, shall be foreclosed from filing the same by the mere lapse of the delay allowed him for filing it. der to fore closure. |