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or by appeal. Therefore, although it may appear evident that the inferior court has, on the trial of the case, rejected proper evidence, or has received improper evidence, yet this is not a ground for prohibition.
If, however, an inferior court should construe a statute in such a way as to confer upon such court jurisdiction, under a certain state of facts, and that construction should be held erroneous by the higher court, prohibition would lie to such inferior court, should it undertake to exercise jurisdiction under such state of facts.
The writ is issued on the application of some person who fyles with the court, written suggestions, or statements, as to the acts and proceedings in the inferior court, and what further proceedings are intended to be had in such court. If the want of jurisdiction in such inferior court appears in the pleadings and papers of the case, a certified copy of such pleadings and proceedings should accompany the suggestions. And if the want of jurisdiction arises by reason of some matter not appearing in the papers and proceedings, these matters should be set forth in the suggestions; and all allegations of fact should be supported by affidavit. When all the facts are within the knowledge of the party making application for the writ, a verification of the suggestions would obviate the necessity of a separate affidavit. But when some of the facts are known by one person, and other facts known by another person, separate affidavits will be required. If the inferior court has jurisdiction of the parties, but not of the subject matter of the action, the defendant should, before moving for a prohibition, appear in the inferior court, and plead the want of jurisdiction, and take the opinion of the court thereon. And in case the inferior court, notwithstanding the plea, determines to hold jurisdiction, prohibition will lie. Pleading want of jurisdiction before motion for prohibition, is the better practice, for two very good reasons. First, it is presumed that if such inferior court is informed, and its attention is called to its want of jurisdiction it will desist from acting in the matter, without any in terference from another court. And secondly, that although jurisdiction cannot, generally, be exercised simply upon consent of parties, where jurisdiction does not exist in law, yet there are cases in which consent of parties would be regarded as a waiver of want of jurisdiction; in such cases, if no objection is made to the jurisdiction, in the inferior court, a waiver will be presumed. Appearance and plea to the jurisdiction, are not, however, absolutely necessary. For when an inferior court has no jurisdiction to entertain a suit, it is not necessary to entitle a party to a prohibition, that he should have there pleaded to the jurisdiction, and that the plea should have been overruled. And especially is this the case, when the court has no jurisdiction over the person of the defendant.
Upon fyling the suggestions and affidavits, if the prohibition is moved for on grounds not appearing in the record, it is not usual for the court to grant the writ in the first instance, but to enter a rule against the judge and party, to appear and show cause to the court why a prohibition should not be issued, accompanied with an order that no further proceedings be entertained until the court has passed upon the rule to show cause, a copy of which is served upon them. If on the hearing to show cause, it is clear that the prohibition ought to be granted, the rule is made absolute. But when the party has suggested either matter of fact, or of law, for obtaining the writ, and the question appears to the court doubtful, the party applying is directed to declare in prohibition; that is he is directed to prosecute an action by fyling a declaration against the other parties upon a supposition or fiction (which is not transversable) that they have proceeded in the suit below, notwithstanding the writ of prohibition. This action is based upon a fiction; or, in other words upon an allegation of facts which are not true. In order to determine the parties right to a prohibition, he is required to allege that the court has already issued the writ, and that the defendant has wilfully disobeyed it.
As legal fictions are not in these days looked upon with favour, this defect in the common law practice should be cured by legislative enactments.
H. H. Moses.
Warren, 0., June 27th, 1871.
RE-REGISTRATION OF REAL RIGHTS.
Too great publicity cannot be given to the laws concerning reregistration of real rights. The Quebec Official Gazette, in which, by law, the proclamation fixing the date when the reregistration is to be effected, is published, does not reach every person interested, and the consequences may be disastrous to many.
The following explanations may not, therefore, be out of place, especially at the present time, when the delay is about to expire in many places, as, in fact, it already has expired in the Counties of Laprairie and Chambly, and in the St. Ann's Ward of Montreal. Even if they do not give a sufficient explanation of the law in all respects they may, at least, afford such information as will enable those who are interested to understand the importance of giving their immediate attention to the preservation of their rights.
The subject of real rights is, withoutdoubt, the most important in our civil law, if we consider that it secures the rights of those who are incapable of protecting their own interests, and guards the most important transactions with solid guarantees.
Our Civil Code has greatly simplified the registration of real rights, more particularly with regard to those which are connected with the legal hypothec of married women and minors, and also in reference to the alienation of rights of ownership. Consequently lenders and purchasers are now more satisfactorily secured.
Before the Statute of 1S41, (-4 Vic. c. 30,) purchasers and lenders were forced to rely entirely on the documents produced, whilst, very often, essential documents containing important reserves, might have been concealed by the party selling or borrowing; such, for instance, as a right of usufruct, which was not included in the owuer"s title, and also any former purchaser's title. For example, a person bought a property, carefully verified the vendor's titles, found them correct, paid the price. and thought himself peaceable proprietor. Suddenly, a former purchaser, who had kept his title secret, and who was not in open possession, claimed the property, and his right was confirmed. Ry what means could the second purchaser have guarded against the error wherein he fell? He could not have done it; for there was no publicity or registration of the first purchase. In fact, there was at that time no security against claims, incumbrances, and hypothecs; the purchaser was forced to rely on the good faith of the vendor as to whether he had not before sold the property to another, who was not in open possession, or granted a long lease thereof, and pocketed the rent in advance, or incumbered it in some other way. This state of things could not be tolerated much longer; it became evident that an immediate remedy must be applied. Consequently the Legislature, in order to protect purchasers of real estate, and creditors secured by hypothec, enacted a law to provide against the losses and evils that they so frequently experienced from secret and fraudulent conveyances of real estate, and incumbrances on the same, and from the uncertainty and insecurity of titles to lands in this Province to the manifest injury and occasional ruin of purchasers, creditors and others.
By the above mentioned Statute, 4 Vic, c. 30, coming into force, 31st December, 1841, a law to the above effect was passed, which partly obviated those losses and evils for the future, by providing that a memorial of all deeds, conveyances, notarial obligations, wills, judgments, appointments of tutors, and all privileged and hypothecary rights, claims and incumbrances, whereby any lands, real or immoveable estates in this Province, shall or may be alienated, conveyed, mortgaged or affected, may be registered, and if not registered, shall be adjudged to be inoperative, void, and of no effect against any subsequent bona fide purchaser, mortgagee, or hypothecary creditor or incumbrancer.
The inconvenience and difficulty of ascertaining the rights of the wife against the property of her husband, and the rights of the minor against that of his tutor, were not, however, overcome by the 4 Vic, c. 30, inasmuch as the wife and minor had a general legal hypothec on the whole property of the husband and tutor respectively; a registered judgment also affected the whole of the property of the debtor belonging to him at the date of such judgment. But the purchaser or creditor had nevertheless the satisfaction of being informed of the existence of these rights by the Registration of the marriage contract, tutorship, judgment, etc., and was therefore induced to make the proper inquiries.
Experience soon showed that the general hypothec was an inconvenient and inexpedient restraint and burden on the alienation of real estate and an obstacle to the introduction of foreign capital, by causing delays and heavy expenses in making the necessary searches, and examining the necessary documents; and, above all, the liability of being deoeived by approximate calculations which had to be made as to the amount of general hypothecs. This was the reason for enacting the Statute 23 Vic-, c. 59, which came into force in 1860, being an Act for the protection of purchasers of real property, and to facilitate the introduction of capital into Lower Canada; in pursuance of which the general legal and tacit hypothec created by, or arising out of, a judgment rendered tutelle, curatelle, or any matrimonial rights, instrument, or document executed, or any appointment (of Tutor or Curator) made, or any act or thing done, happening, or registered after that Act came into force, does not bind or affect any real property, unless and until a notice has been filed with the Registrar specifying and sufficiently describing such property, and stating it to be then in the possession of the party against whom such hypothec is registered as his property. Therefore, no property can be affected to the prejudice of third parties; viz., any persons acquiring the same, or registering any hypothec thereon for any right they may have. For instance, A. owns a property; he is married to B., who holds a claim for a matrimonial right, but not registered with a special hypothec on that property. A. sells it to C, who makes the necessary search, and finds nothing registered specially affecting that property. C., the purchaser, therefore, remains undisturbed and unmolested in his possession, B. having forfeited her right by not making the necessary registration. The same example will sufficiently illustrate the case of a tutor selling his property, against which no special hypothec in favour of the minor has been registered.
By Sec. 29 of the same statute it is enacted that the Commissioner of Crown Lands shall cause to be prepared a correct plan of each city, village, parish, &c., in each registration division in Lower Canada.
All those Statutes are fused into the Civil Code, which is in force since the 1st of August, 1866, and in which are included several changes and additions, to be found below among the detailed rights subject to registration; particularly the obligation to register the right of ownership before selling, hypothecating, or otherwise encumbering any real estate. The registration of, transmission of real estate by succession, and the registration of the legal customary dower (by Articles 2098 and 2116).