Comments on Some Questions Put at the
Bar Examinations on Practical Civil Procedure
Sol. W. Weber *
1. At the Bar examination which took place January 8, 1965,
question No. 5 on Civil Procedure (practical) reads as follows: 1
“On March 1st, 1962, Paul L6ger, accountant, subleased to Jacques Pesant
the premises where he resided in Montreal, at No. 15 Panet Street. L6ger
then left Montreal to settle permanently in Miami.
On December 30, 1964, Ldger returns to Montreal for the first time since
his departure and goes to see Pesant to inquire why the latter has not for-
warded the December rent.
Pesant explains that he was served with a writ of garnishment in No-
vember, 1964, and that he has deposited the rent at the office of the Clerk
of the Magistrate’s Court of Montreal. Ldger also learns from Pesant that
in May, 1963, a bailiff left at 15 Panet Street, for Lager, a copy of an action
of $190.00, instituted by Euclide Salvail against Lager.
L6ger denies owing anything to Salvail and consults you today. You
discover at the Clerk’s office that judgment by default against Lgger was
rendered in favour of Salvail on June 20, 1963.
What proceeding must you make to protect Ldger’s rights?
Draft it.”
[The proceeding is a Petition in Revision].
First of all it should be pointed out that payment of the rent had
to be demanded at Leger’s former residence (now occupied by Pe-
sant), as provided for in Art. 1155 (2) C.C. L6ger could not complain
(as the question implies) that the rent for December 1964 was
not forwarded to him. Rent, like any other debt, is ‘qu~rable’ and
not ‘portable’, unless it is otherwise agreed upon. The Bar question,
however, does not allege that the sublease contained such an agree-
ment.
As regards the allegation that after Pesant had been served with
a writ of seizure by garnishment in November 1964, he deposited the
rent at the office of the Clerk of the Magistrate’s Court at Montreal,
it should be noted that such a deposit is not in accordance with Art.
689 C.P., reading as follows:
* Of the Bar of Montreal; Former lecturer on Civil Procedure at McGill
University (1951-62).
I Published in (1965) 25 R. du B., pp. 113, 114.
No. 4] COMMENTS ON QUESTIONS AT THE BAR EXAM. 335
If the declaration of the garnishee is not contested and he has not de-
clared that any other seizure has been made in his hands, the judge or the
prothonotary, upon an inscription for judgment by either party, orders him
to pay to the seizing creditor on account of or to the extent of his dept, the
moneys seized, according to their sufficiency. Such judgment must be served
and the delay for executing it is computed only from the day of such service.
The question does not allege the amount of the judgment debt and
costs. If the rent deposited was sufficient to cover the debt, interest
and costs of the judgment rendered against L6ger, Pesant should have
paid the debt direct to Salvail and the costs to Salvail’s lawyer, pre-
suming that the seizure by garnishment was maintained and that a
certified copy of the judgment was served on Pesant.
The law distinguishes a seizure by garnishment of an ordinary
debt, such as rent (due by a lessee of a judgment debtor) from a
seizure of a judgment debtor’s wages. In the latter case the garnishee
must (even before a judgment is rendered declaring the seizure good,
valid and binding) on making his first declaration, deposit at court
the sum which he owes at that time, namely the seizable portion of
the wages of the employee in question. (Art. 697 (3) C.P.)
If the rent for December 1964 due by Pesant was not sufficient
to pay the debt, interest and costs, and if a judgment was rendered in
accordance with the provisions of Art. 690 C.P., only then would it
have been necessary for Peasant to deposit the rent at court. The
Bar question was therefore incomplete. If Pesant had paid direct to
Salvail and his lawyer, a “Petition in Revision” would not be enough
to protect Leger’s rights, seeing that an action would alsohave to be
taken by L6ger against Salvail and his lawyer to order them to refund
the money they have received from Pesant.
2. At the Bar examination held in January 1964 question No. 2
(Practical Civil Procedure) 2 reads as follows:
Dame Louise Guay, wife of Zephirin Barbeau, consults you on January 6,
1964, in Quebec, where she is visiting her mother, who lives at 10 rue du
Port. Her husband resides in Montreal at 10 Fleury Street. She wishes to sue
her husband in separation from bed and board on the grounds of his adultery
with Lise Chaplin. The spouses were married without a marriage contract
and own household furniture worth $5,000. The husband works for ABC
Company at a weekly salary of $200. Two children were born from this
marriage: Peter, aged 3, and Paul, aged one. Your client wishes to obtain
custody of the children. She is penniless and needs an alimentary allowance
for her children and herself. Furthermore, she fears her husband will dis-
pose of the furniture pending suit.
Draft in full the declaration for this action.
2 See (1964) 24 R. du B. at p. 110.
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The statement is made that
(a) the spouses were married without a marriage contract;
(b) they own household furniture worth $5,000;
(c) Mrs. Barbeau feared her husband would dispose of the furni-
ture pending suit;
First of all, the furniture is not the property of the spouses, but
solely that of the husband, who is head of the community, (Art. 1272
C.P.), even if some of the items may have been bought in the wife’
name.3
It may be pointed out that Art. 1292 C.C. (as amended by The
Act Respecting the Legal Capacity of Married Women, which came
into force on July 1, 1964) now reads as follows:
The husband alone administers the property of the community.
He cannot sell, alienate or hypothecate without the consent of his wife
any immovable property of the community but he can, without such concur-
rence, sell, alienate or pledge any moveable property other than a business
or than household furniture in use by the family.
Saving the provisions of The Husbands’ and Parents’ Life Insurance Act,
the husband cannot, without the concurrence of his wife, dispose by gratui-
tous title inter vivos of the property of the community, except small sums
of money and customary presents.
The above Act also contained an amendment to Art. 1101 C.P., in
order to bring it in line with the new wording of Art. 194 C.C., elimi-
nating the necessity of a judge’s authorization for the wife to sue in
separation as to bed and board. However, she still needs permission
to be allowed to withdraw pending the suit to a place indicated by
her and to seize the moveable property of the community, for Art.
1102 C.P. was not amended. It reads as follows:
If the wife thinks proper to demand an attachment of the moveable pro-
perty of the community for the preservation of the share which she will
have a right to claim when the partition takes place, she must likewise be
authorized by a judge for that purpose.
The attachement is effected in the same manner as attachment for rent,
but the husband remains judicial guardian of the property attached.
The judge may, according to circumstances, allow the seizure to be re-
leased or suspended, with or without security.
This Article is really a repetition of Art. 204 C.C., which also has
not been touched by the 1964 Act. Neither Art. 204 C.C., nor Art.
1102 C.P., stipulate that wife common as to property must allege
special reasons in the petition asking for permission to seize the
3 See Therrien v. Rioux [1956] P.R. 36.
No. 4] COMMENTS ON QUESTIONS AT THE BAR EXAM. 337
moveables of the community, as the Bar question would imply. Even
if the wife does not fear that her husband will dispose of the furni-
ture, she is still entitled to seize it, if she institutes an action in sepa-
ration as to bed and board.
In Chaput V. Choinire and the Treasurer of the Province of
Quebec,4 tiers-saisi, Associate Chief Justice Challies went into the
problem at length, citing numerous cases. He held as follows:15
… A wife common as to property, who takes a separation action, can,
under art. 204 C.C. cause the movable effects of the community to be attached
by means of a saisie-gagerie conservatoire which is assimilated to a saisie-
gagerie rather than to a saisie-conservatoire. The writ of a saisie-gageric
conservatoire is obtained without the affidavit required for a saisie-arr~t or
saisie-conservatoire, by a petition to the Court under arts. 1101 and 1102 C.P.
The words “movable effects of such community” in art. 204 C.C. and
“movable property of the community” in arts. 1093 and 1102 C.P., comprise
all the movable property of the community of whatever nature, including
inter alia money in the bank or in the hands of other third parties and
such movable effects in the hands of third parties can be be seized by saisie-
gagerie conservatoire not supported by affidavit. A petition to quash a saisie-
gagerie conservatoire en mains tierees for want of supporting affidavit does
not lie.
A contrary opinion had been previously expressed by the Superior
Court in Dame Racine V. Boivin and C.N.R.,6 (in dealing with a
seizure by garnishment by a wife common as to property suing
in separation as to bed and board), the court holding being as follows:
Pour saisir gager les biens mobiliers de la communaut6, sous l’art. 204
C.C., l’pouse n’a besoin d’aucun affidavit pr~alable (952
il lui
suffit d’y avoir W pr~alablement autorise sur requfte asserment~e (1101
et 1102 C.C.).
954 C.P.): –
Mais, si elle veut recourir aux autres mesures provisionnelles, elle doit,
alors, adopter les proc6dures requises en pareil cas.
Ainsi, si elle veut obtenir un arr~t en mains tierces, pour saisir le salaire
de son mar, elle doit fournir l’affidavit sp6cifique requis par l’art. 931 C.P.
In St. Germain V. Salvas,7 the Superior Court also made a distinc-
tion between a seizure of furniture garnishing the common domicile
and a seizure of other assets of the community. The head notes read
as follows:
Pour saisir-gager les biens mobiliers de la communaut6 sous l’article
204 C. civ., l’dpouse n’a besoin d’aucun serment pr6alable; il lui suffit d’avoir
t6 autoris6e sur requite asserment~e suivant les articles 1101 et 1102, C.
proc.
4 [1951] S.C. 318.
5Ibid., at 322 and 323. See also Dubois v. Leblane [1955] P.R. 410; Brisebois v.
Ashby [1958] P.R. 173.
6 (1928) 31 P.R. 85.
7 (1940) 45 P.R. 88.
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Si cependant elle veut recourir aux autres mesures provisionnelles, elle
doit fournir le serment sp~cifiquement requis par l’article 931 C. proc.; ainsi,
il ne lui suffit pas de dclarer qu’elle perdra son recours, mais il lui faudra
ajouter que son mar agit ainsi dans l’intention de frauder; la seule crainte
de prerdre son recours sans 6nonciation des raisons de sa croyance n’est pas
suffisante.
A similar decision was rendered in Jones v. Laduke, where the
Superior Court held as follows:
L’autorisation i prendre une saisie-gagerie conservatoire sur les biens
meubles de la communaut6 ne comprend pas celle de saisir-arr6ter de 1’argent
ddpos6 h la banque, lequel ne peut 6tre arrt6 que si le serment de ]a deman-
deresse r~pond aux exigences de l’article 931 C. proc.
The reporter, cites what the Codifiers said in their Report, as fol-
lows: 9
Comme il est A craindre que le mar, administrateur et en possession ses
biens communs, ne les dissipe ou ne se’les approprie frauduleusement pen-
dant la contestation, ]a femme commune peut, en tout 6tat de cause, se
faire autoriser A saisir-gager les biens mobiliers de ]a communaut6, pour
la conservation des droits qu’elle y pourra prdtendre …
In Patiris V. Arakinis, 0 the Superior Court in commenting upon
Art. 204 C.C. and Art. 1102 C.P., pointed out “1
… that our laws give the wife common as to property who sues in sepa-
ration a clear right to seize the moveable effects to the community, as a
means of preserving “the share which she will have a right to claim, when
the partition takes place”, according to article 204 C.C., which prescribes no
particular allegations of fact or convenience to justify this step of security.
Trudel, in discussing Art. 204 C.C., remarks that no particular
fact has to be proven in order to be able to seize the movable effects
of the community.12
3. At the December 1961 examination, 3 question No. 4 in Civil
Procedure (practical) is quoted as follows:
You are consulted by Amos Angers. He has just learned of a judgment,
of which he hands you a copy, rendered two months ago in an action in the
Superior Court, district of Quebec, maintaining Benoit Blanger’s action
against Charles Cameron, to which Angers was not a party, based on the
resolutory clause in a deed of loan. The judgment declared plaintiff absolute
owner, free and clear of all encumbrances, of lot 192 of the parish of St.
Polycarpe, whereas Angers has a prior hypothec on the property, as he
8 [1946] P.R. 289.
9 Ibid.
10 [1950] P.R. 67.
1 Ibid., at p. 68.
12 TraitM de Droit Civil du Qudbee, I, p. 638.
13 See (1962) 22 R. du B., p. 60.
No. 4] COMMENTS ON QUESTIONS AT THE BAR EXAM. 339
proves by a deed of loan from himself to Blanger executed and registered
before Cameron’s deed.
a) What is Angers’ recourse?
b) Draft the appropriate proceeding.
Both the English and French versions speak of a “resolutory
clause” instead of a “giving-in-payment clause”. This must have been
an error. If the Deed of Loan had contained a resolutory clause, its
enforcement would result in the deed being cancelled, the mortgage
granted in favour of Belanger becoming null and void, and Belanger’s
only recourse then being to obtain a refund of the money he had
loaned to Cameron, but not to be declared the owner of the immovable
property in question, as the question says. (The writer of these notes
cannot recollect having seen such a clause in a deed of loan).
The Court of Appeal in Sunny River Investment Corp. V. Green-
belt Construction Corp.14 spoke of a dation en paiement clause in a
deed of sale, which the court (surprisingly) said contained the usual
stipulations of such a contract. A similar clause in a deed of sale was
upheld by the Court of Appeal in Val Morin Mountain Lodge Inc. v.
Laperle. 5 Mr. Justice Montgomery, however, dissented. He held as
follows:
In a deed of sale a resolutory clause does not cease to be such by being
called a clause of dation en paiement. The sixty-day notice prescribed by
art. 1537 and 1550 C.C. is a matter of public order and cannot be waived by
a buyer, either expressly or by accepting a dation en pairnent clause 16 in the
form commonly used in deeds of loan.
Strictly speaking, although the judgment declared Belanger own-
er of the property in question, free and clear of all encumbrances, it
did not affect the prior hypothec of Angers, for he was not a party
to the action and therefore the judgment obtained by Belanger against
Cameron was not chose jugge against Angers. (Art. 1241 C.C.).
The Bar question does not state that the Registrar was ordered to
radiate Angers’ hypothec, for it is doubtfut that such an order would
have been given, seeing that Angers was not impleaded. In order to
avoid any doubt as to Angers’ rights in his prior hypothec, a third
party opposition to judgment on his behalf would, of course, be the
proper procedure.
4. Question No. 2, put at the June 1961 examination on Practical
Civil Procedure,’ 7 reads as follows:
14 [1963] B.R. 479.
15 [1961] B.R. 410.
16 Ibid., at p. 416.
17See (1961) 21 R. du B. 378.
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Primus, an employee of La Cie du Pouvoir Lt6e, received on June 2, 1961,
a seizure by garnishment of his salary. The action has been brought by
Secundus; the judgment, dated April 1, 1961, condemned Primus to pay Se-
cundus $1,500.00 with interest and costs. It is an action on an account.
Primus tells you that he was never served with the action. You go to court
and you verify that judgment was rendered by default following service by
publication in the newspapers. Primus owes Secundus nothing, having paid
him in full before action was brought, and he holds a receipt.
Draft the appropriate proceeding.
(The appropriate proceeding is a petition in revision. Art. 1175 C.P.).
In the June 1954 examination on Practical Civil Procedure, 18
question No. 2 reads as follows:
Le 5 juin 1954, Jacques Brault vous consulte au sujet d’une saisie-arr6t
qui vient de lui 6tre signifi6e le 3 juin 1954. Au greffe de la Cour vous vous
informez si le bref d’assignation original fut signifi6 au domicile du d6fen-
deur, ce qui fut fait le 13 juillet 1953 h une personne raisonnable en charge
du domicile du d~fendeur. La saisie-arr6t est en ex6cution d’un jugement par
d4faut de la Cour sup~rieure rendu le 20 juillet 1953. Le d6fendeur vous
expose que du ler au 31 juillet 1953 il 6tait absent en vacances aux Etats-
Unis avec toute sa famille. Par contre, durant cette p6riode, il a laiss6 une
servante en charge du domicile et cette derni~re a quitt6 son emploi sans
lui parler de la signification de Faction, cc en date du 31 juillet 1953. 11 vous
expose qu’il ne le connait m6me pas. La saisie-arr6t est prise entre les mains
de Ia Cie Eaton pour laquelle le d6fendeur travaille actuellement.
Redigez ]a procedure et indiquez toutes les formalit~s qui doivent l’ac-
compagner.
(The answer to this question is an opposition to judgment.)
We must ask ourselves, however, why these questions mention
the names of the garnishees. Is it because it was felt that the gar-
nishee should be made a party to the petition in revision or opposition
to judgment, if the said proceeding is served after the salary of the
judgment debtor has been seized? Were the examiners of the opinion
that after the reception of the opposition to judgment or petition in
revision the garnishee may ignore the seizure and pay the debtor his
salary without deducting the seizable portion thereof?
In LaSalle Finance Corp. v. St. Jean,19 after an opposition to judg-
ment was received by the Court, the defendant made a petition that
the seizable portion of his wages (which the garnishee had deducted)
be paid to him and that the garnishee abstain from making any de-
ductions in the future, as long as his opposition to judgment was not
adjudicated upon. The Superior Court maintained the defendant’s
petition, pretending that it did not come into conflict with the judg-
ment of the Court of Appeal, in Deslauriers V. Deslauriers.20
Is See (1955) 15 M. du B. 191.
19 [1958] P.R. 385.
20 (1930) 34 P.R. 75.
No. 4] COMMENTS ON QUESTIONS AT THE BAR EXAM. 341
The law and the Deslauriers judgment, however, do not justify
the stand taken in LaSalle & St. Jean.2 1
In Deslauriers V. Deslauriers, Mr. Justice Tellier of the Court of
Appeal remarked as follows:
Dans ces conditions, il ne peut 6tre question de mettre de c8t6, ni declarer
illgales et nulles, soit leurs d6clarations, soit leur consignations. La saisie-
arr~t subsistant, les deniers saisis doivent rester sous la main de la justice,
jusqu’h adjudication finale sur l’opposition. C’est cela que prescrit l’article
1172 cit6 ci-dessus. Le d~fendeur n’a pas A se plaindre. Son sort serait le
m~me, si, au lieu d’une saisie-arr~t, il s’agissait d’une saisie-ex~cution: ses
meubles saisis demeureraient sous saisie, tout comme dans le cas actuel.22
Mr. Justice Galipeault’s remarks are also very much in point:
Encore une fois, l’effet de l’opposition A jugement n’est que d’obtenir ia
suspension des procedures et ce jusqu’A l’adjudication finale sur icelle. Qui dit
suspendre, ne dit pas annuler. Si la saisie-arr~t, dans les circonstances, devait
ne pas 6tre rapport~e, elle serait devenue caduque et les fins de la justice
td servies, au cas oii l’opposition A jugement serait rejetde
n’auraient pas
itl adjudication finale. I1 peut y avoir des inconv~nients pour l’opposant, s’il
a une d~fense victorieuse A offrir h l’action, dans le fait que ses d~biteurs
t6 appelds au greffe pour y faire leur declaration et y ont d~pos6 les
ont
deniers dont ils 6taient endett~s envers lui. I1 aurait pu facilement parer A
telle 6ventualit6 en faisant signifier a chacun des tiers-saisis, au protono-
taire de la Cour sup~rieure et an saisissant, une copie du certificat de pro-
‘effet la saisie-
duction de l’opposition. (1171 c.p.c.). Mais, encore une fois,
t6 que suspendue, les biens du d~fendeur seraient rest~s en-
arr~t n’aurait
tierc~s entre les mains des tiers-saisis et le saisissant n’aurait pas subi le
danger d’Atre frustr6 de ses droits, si l’opposition A jugement 6tait mal
fond~e. 23
The Court of Appeal in Deslauriers v. Deslauriers reversed the
Superior Court judgment which had ordered that all the proceedings
on the seizure by garnishment subsequent to the service of the opposi-
tion to judgment should be rejected from the record. The Court based
itself upon the fact that the opposition to judgment was received.
Mr. Justice Galipeault’s criticism of this order reads as follows:
En ordonnant comme elle l’a fait, il n’y a aucun doute que la Cour sup6-
rieure a pr~jug6 le jument sur l’opposition, a mis le demandeur dans une
position d~favorable, l’a frustr6 de ses droits et des avantages que devait et
pouvait lui procurer son bref de saisie-arr~t 6mis dans les d6lais 16gaux,
apr~s le jugement et qui apr~s l’adjudication finale sur l’opposition, si elle
est renvoy~e, aura toute sa force et son effet contre les parties A dater du
jour de la signification qui leur aura
t6 faite.24
21 [1958] P.R. 385.
22 (1930) 34 P.R. 75, at 79.
23 Ibid at p. 83.
24 Ibid at p. 85. See to the same effect a judgment of Lamarre, J., in Gelber v.
Bergeron & Purity Ice Creat Co. Ltd. [1958] P.R. 372.
342
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In the above two Bar questions, it is the opinion of this writer
that it would have been preferable not to mention the names of the
garnishees, for an opposition to judgment or a petition in revision are
matters to be decided between the plaintiff and the defendant. The
garnishee should not be involved in this litigation. He has to continue
to deduct the seizable portion of the wages and wait until judgment is
rendered.
5. At the Bar examination on Civil Procedure (practical) held
on December 16, 1959,25 question No. 2 reads as follows:
Emile Frangois, marchand d’appareils 6lectroniques, de Montreal, vous
consulte. Le ler ddcembre 1959, il a vendu i Clovis Dor6, un appareil de haut
fid~lit6 qu’il a livr6 le m6me jour, sans s’en r~server le droit de propri6t6
jusqu’A paiement. La facture qu’il a remise A Dor6, en mgme temps que I’appa-
rell, indiquait que le prix convenu, $650, serait payable dans les trente
jours de la livraison (net: 30 days). Votre client vous exhibe copie de cette
facture.
Le 15 d~cembre 1959, Armand Brisebois, marchand de charbon de Mont-
r6al, qui avait obtenu jugement contre Dor6 pour le prix de marchandises
vendues et livr~es, fit saisir les meubles de celui-ci dont P’appareil en ques-
tion.
Frangois qui n’a pas W pay6 de son prix, vous demande de faire les
procedures utiles h la protection de ses int6r~ts.
a) Dites quelle procedure s’impose et justifiez votre r6ponse; puis,
b) R~digez cette procedure.
The question as put takes it for granted that Frangois’ interests
can be protected by a procedure prior to the bailiff’s sale, which sale
could not have taken place before the expiry of eight days computed
from the date of the publication of an advertisement stating the day
and hour of the sale. Not having retained the right of ownership of
the set in question, Frangois could not make an opposition to the
seizure. The set had become the common “gage” of Dor6’s creditors,
(Art. 1981 C.C.). On December 16, 1959 Frangois could not have
taken any proceedings to protect his rights, as he had no rights in
the set which was sold to Dora outright on credit. Frangois could of
course attend the bailiff’s sale, try and buy the set himself, or see
to it that it is sold at a much higher price than the costs of the
seizing creditor, which would enable him to make an opposition for
payment as an unpaid vendor, within eight days after the bailiff’s
sale. Arts. 672 C.P.; 1994(3) and 1998(2) C.C.
Frangois could not take an action to cancel the sale of the set and
accompany it with a conservatory seizure. [as was done in Morgan
25 Reported in 1960 20 R. du B. pp. 89 and 90.
No. 4] COMMENTS ON QUESTIONS AT THE BAR EXAM. 343
Co. Ltd & Mt. Royal Lumber and Flooring Co. Ltd.26 and in Laflam-
me V. Dundas Lumber Co. 27 in accordance with the provisions of
Art. 1543 C.C. and Art. 955(1) C.P.] for two reasons, namely (1)
the debtor was no longer in possession of the set, as it was under
seizure and in the legal possession of the guardian (saisie sur saisie
ne vaut pas), and (2) because the purchase price was not due yet.
Quaere: Would it not be advisable to publish the answers to the
questions that the Bar examiners have drawn up ? These answers
would be useful not only for students about to take the examina-
tions but they would also act as a refresher course for many law-
yers –
for it is frequently said that there are very few members
of the Bar who could pass the Bar examinations.
26 (1926) 41 K.B. 1.
27 [1953] P.R. 13.
