COURT(S) OF COMMON PLEAS
(also known 1776-1777 as Courts of Civil Jurisdiction, and 1770-1794 as Friday Court or Circuit Court)

The Court of Common Pleas in England, like the Court of King's Bench, was one of the three superior courts of common law. The jurisdiction of the Court extended in theory to all civil matters; however, as there was only one Court for the entire country, sitting at Westminster, much of the Court's theoretical jurisdiction was delegated in practice to the Courts of Assize. As well, by the eighteenth century, the Court's jurisdiction was increasingly being encroached upon by the Courts of King's Bench and Exchequer. Nevertheless, the Court remained the penultimate civil court in England (below the Privy Council), especially in cases involving real property.⁽⁸²⁾

Establishment and Jurisdiction

A Court of Common Pleas for the province was established in Quebec by the 1764 ordinance setting up the courts. The Court had jurisdiction over civil matters involving sums over £St10. Although the Court was based on the English court of the same name, unlike the latter it tried in practice most cases under its theoretical jurisdiction, apart from those tried by the Court of King's Bench. Cases in the Courts were to be determined according to equity,⁽⁸³⁾ with regard to the laws of England; in practice, however, the Courts applied pre-Conquest French law in cases involving French-Canadians.⁽⁸⁴⁾

In 1770, with the revocation of the civil jurisdiction of the Justices of the Peace, the Court was divided into two separate Courts for the Districts of Quebec and Montreal respectively, each with jurisdiction over all civil matters arising within its district.

The Courts were abolished with the rest of the existing court system as of May 1, 1775 by the Quebec Act, and remained in abeyance during the period of instability resulting from the American invasion. Their jurisdiction was assumed by the interim Courts of Civil Jurisdiction (Courts of Common Pleas) established in 1776.

Composition and Sessions

The Court(s) were held (implicitly) by the Judges of the Court(s) of Common Pleas. Under the initial ordinance, the Court was to have two terms annually at Quebec City, but from 1765, the Court also had two terms annually at Montreal. In Quebec City, the Court sat for the first time in January 1765, whereas in Montreal, the first session came in February 1765.

From 1770, the Courts had at least one session every week for matters involving sums over £12, and sessions every Friday for matters involving sums not over £12. Twice in every year, the Judges of the Courts also made circuits to hear cases in other parts of the province; these were often referred to as Circuit Court.⁽⁸⁵⁾

Revision

Judgements of the Court(s) in cases over £St20 could be appealed to the Court of King's Bench; in cases over £St300, they could be appealed directly to the Governor and Council.

Legislation

4 George III September 17, 1764 (in force with amendments 1764-1775)
Establishing a Court of Common Pleas for the province.

Order In Council January 3, 1765
Giving the Court two terms annually at Montreal.

10 George III February 1, 1770 (in force 1770-1775)
Establishing separate Courts for the Districts of Quebec and Montreal, extending their jurisdiction to all civil matters, and modifying their sessions..

Imperial Statute 14 George III c.83 (1774) (Quebec Act)
Abolishing the Courts as of May 1, 1775.

Establishment and Jurisdiction

The restoration of regular civil government in 1776, after the period of administrative chaos and martial law resulting from the American invasion, necessitated the immediate establishment of interim courts to deal with the backlog of civil cases. Thus, a "Court of Civil Jurisdiction" was established in each district in July 1776 by two special commissions of Governor Carleton.⁽⁸⁶⁾ The Courts had jurisdiction over all civil cases, and thus assumed the civil jurisdiction previously held by the Court of King's Bench and the Courts of Common Pleas. They were often referred to in the records as the Courts of Common Pleas, and were in effect direct precursors of the Courts of Common Pleas that were formally established in 1777, with the same jurisdiction and composition, the same individuals as judges and clerks, and even the same registers.⁽⁸⁷⁾

When the regular court system was restored in 1777, judgements of the Courts were confirmed, and their jurisdiction assumed by the new Courts of Common Pleas.

Composition and Sessions

The Courts were composed of three judges in each district, and held by any two of them. The judges were to hold as many sessions as they felt necessary.

Revision

Judgements of the Courts in cases over £St10 could be appealed to the interim Court of Appeals.

Legislation

17 George III c.1 (1777)
Confirming judgements of the Courts.

Establishment and Jurisdiction

When the regular court system was restored in 1777, a Court of Common Pleas was formally re-established for each district. The Courts had jurisdiction over all civil matters, thus assuming the jurisdiction temporarily held by the interim Courts of Civil Jurisdiction (Courts of Common Pleas). While not mentioned in the legislation, the 1779 appointment of a Judge of Common Pleas at Gaspé, with directions to hold a court, presumably established a Court there as well.^(87a) With the erection of the District of Trois-Rivières in 1790, a Court was established for that district as well, with the same jurisdiction as those in the other districts.

The Courts were abolished in the judicial reorganization of 1794. Their superior jurisdiction was assumed by the Superior Terms of the Courts of King's Bench, and their inferior jurisdiction by the Inferior Terms of the Courts of King's Bench and the Circuit Courts.

Composition and Sessions

In the main districts, the Courts were composed of three Judges of the Court; they were held by two Judges of the Court in matters involving sums over £St10, and by one Judge of the Court in matters involving sums not over £St10. The Courts had weekly sessions for matters involving sums not over £St10, and weekly sessions for matters involving sums over £St10; the latter were usually held on Fridays, and referred to as Friday Court. Twice in every year, the Judges of the Courts also made circuits to hear cases in other parts of the province; these were often referred to as Circuit Court.⁽⁸⁸⁾

From 1787, in the main districts, the Courts had four terms annually for cases over £St10. From 1790, the Court of the District of Trois-Rivières had two sessions.

Revision

Judgements of the Courts in cases over £St10, or affecting future rights, could be appealed to the Court of Appeals.

Legislation

17 George III c.1 (1777) (in force with amendments 1777-1794)
Establishing a Court of Common Pleas for each district.

27 George III c.4 (1787) (in force 1787-1794)
Giving the Courts four terms annually for cases over £St10.

30 George III c.5 (1790) (in force 1790-1794)
Establishing a Court for the District of Trois-Rivières.

34 George III c.6 (1794)
Abolishing the Courts.

Establishment and Jurisdiction

Under the never-implemented judicial reorganization of 1840, a Court of Common Pleas was to be established for each division of the colony, with civil and appellate jurisdictions. However, as this act was never in force, the Courts were not actually established.

Legislation

3&4 Victoria c.45 (1840) (never in force)
Establishing a Court of Common Pleas for each division.

Page content last updated 2008-03-20