\2G> (ffnntell IGatu ^rl|pal Ktbrarg KEQ126jl8 e i865' erS,,yUbrary A |MlffiK?±f.,!».,^?Ported cases I 3 1924 017 733 977 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017733977 DIGESTED INDEX EEPORTED CASES LOWER CANADA, contained in the reports of pyke, stuart, revue de legislation, law reporter, lower canada reports, lower canada jurist, stuart's vice-admiralty cases and Canada appeals brought down to january,! 1864, t TO WHICH IS ADDED AN APPENDIX COMPRISING Ferrault's Precedents de la Prevoste et du Couseil Sup6rieur, WITH TABLES OF REFERENCE, NAMES OF OASES AND A CONCORDANCE, a — ALSO — Numerous Notes, and References including several important cases not yet reported, bv T. K. RAMSAY, Advocate. QUEBEC: PRINTED BY GEORGE E. DESBARATS, 1865. TABLE OF CONTENTS. Preface, - - .'. . . . . . . . v Table op Cases, --------- vn Abbreviations, ---*----- xlix Index, ----------- . l Note of Judgments in Appeal, 1864, ----- 341 Appendix, -----*---- 345 Table of Reference to Index, ------ 359 Table of Reference to Appendix, ----- 365 Concordance, ---------- 367 PREFACE. " i hold every man a debtor to his profession." — Bacoh. Reporting is perhaps the most valuable portion of legal literature ; but its usefulness for all ordinary purposes becomes impaired, if the reports are not carefully indexed and arranged, from time to time, as their bulk increases. Five years ago our reported cases having swelled in the ten preceding years from five to twenty-one volumes, I began to prepare an index for my own use. Since then I have added the contents of the later volumes, as they appeared, down to the end of 1863 ; and in part liquidation of the debt claimed by the great English Chancellor, I now offer the compilation thus made, to my brethren of the legal profession, in the hope that, amidst the toil of practice, it may relieve them from the necessity of many a weary and often un- successful search. In publishing this Index, I am not blind to the many defects of its classification ; but after having re-arranged it four times in manu- script and twice in type, I feel persuaded that it is impossible, within the limits of one volume of a reasonable size and cost, so to dispose the matter as not. to give ample room for easy criticism in this respect. However, I have endeavoured as far as possible to obviate any incon- venience which may arise from imperfect classification by adding three tables — one of reference, a second of the names of parties, and a. third of the principle words of the Index wherever they occur. The , last table, so far as I know, is a novelty in works of this class, but I think it will be found the most useful of the three. I have also condensed and added in an appendix the cases de- cided in the old Courts of Prevoste and Conseil Supirieur, reported in. the two small volumes published in 1824, by the late Mr. Perrault, one of the Clerks and Prothonotaries of the Court of Queen's Bench. The judgments in many of these cases will be found to contain very interesting and valuable precedents, and as such, not less binding now ▼i PREFACE. than they were under the old regime. Indeed it is to be regretted that, in determining the jurisprudence of the country, recourse had not been oftener had to the records of the older courts, and even now it may not be tcro late to enquire how our predecessors practised and administered the law. In England the Year Books have never been despised, and in France now studious men are beginning to per- ceive that wisdom is not of any one age, and that no people can with impunity ignore its history and its traditions. Are our dim unworthy of a thought? I need hardly say that the Index comprises the cases in Pyke's Reports, Stuart's Reports, Stuart's Vice-Admiralty Cases, La Revue de Legislation et de Jurisprudence, the Law Reporter, the Lower Canada Reports, and the Lower Canada Jurist. I have, however, omitted the Bankrupt cases, which had only interest under the opera- tion of the old Act. Some cases which are not reported are mentioned in the Index,, and I have also added a few notes, the last of which. gives the judgments in appeal which affect the cases referred to in the Index, and which are reported in Vol. 8 of the L. C. Jurist, and Vol. M of the L. C. Reports. Montreal, May, 1865. TABLE OF CASES Abbott et al. and Meikleham et al., 168. Abbott v. Montreal and By town Rail- road Co., 206. Adam and Duhamel, 264. Adams v. Fleming et ah, 221. Adams v. Gravel, 307. Adams v. Hunter and Evans, 86. Adams v, O'Connell, 107. Adams v. Peel et al., 177. Adams and School Commissioners for Municipality of Barnston, 287. Adams v. Sutherland, 288. Addams and Worden, 163, Addison and Bergeron et al.,227. Adhemar, Malo v., 280, 311. Adventure, The, 11, 166, 218, 235, 284, . 323. 2E'tna, Grant v., The, 1519, 331. Agnes, The, 87, 102,1 16, ,195, 234, 264, 326. Ahern, Rice et al. and, 150, l6Q. Aid, The, H 2, 235. Ailsa, The, Alexander, The, 69. Ambault, Macfarlane and, 33. Aitken, The Montreal and, 169. Akwirente et al., Nianentsiasa and, 21, 94,151,315. Alain, Bank of Hr)per Canada v., 48. Alain, Paradis v.; 9, 282. Alexander, The^-Ailsa, The, 69. Alexander v. McLachlan, 49. Allaire,' Marois and , 25. Allaire, Provost and, 285. Allan et al. Macdougall v., 58, 194. Allan, Torrance et al. v., 57,344. Allardet al.Lesperance and, 123, 153, 206. Allftrd, Cannot v., 73. Allard, Trudelle v., 229. . Allen v. Allen, 50. Allen, Gale v., 54 Allen v. Scaife et al., 133. AUere>,Exp.. 62. Alleyn v. The Quebec, 154. -[Alio v. Alio, 17. Mllsopp, Aylwin v., 105. Allsopp, Gallagher v., 315. Amiot, Desharnais v., 56. Anderson, Bruce v., 42. Anderson et al. and Dessaulles et al., 160. Anderson. et al. and Genereux,42. Anderson, Jones and, 277. Anderson et al. and Lapensee, 123. Anderson et al. v. The Mayor, &c, of Montreal, 162. Anderson v. Piirk, 88, 248. Anderson, Phillips v.,. 151. Anderson, Quebec. Fire Assurance Company and, 25. Andres et al., Larocque et al. v., 241, 249. Andrews v. Birch, 14, 239. Andrews and Robertson, 309. Angers, Carrier v., 145. Anne Johanne, The, 12, 324. Antrobus, Morris et al. v., 122. Arabian, The— The Alma, 325. Arcand and Montreal and New York Railroad Co., 169. Arcand, Perrault and, 282. Arcand, Wurtele v., 320. Arehkmbaiilt and Arohambault, 30,'75, 231. Archambault and Busby, 215. Archambaiilt, Exp., 62. Archambault, Fiiiatrault v., 104. Archambault, Johnston et al. v., 295, 343. Archambault v. Roy, 301. Archambault v. Syndics Martigny estate, 107. Armstrong v. Crochetiere, 16 k Armstrong, Laprise v., 316. Arnold v. Campbell, 207, 209. Arsenault, Lariviere v., 174. Arthur et al., Taylor v., 1 16. Arthur and Montreal Assurance Com- pany, 22. Arthur, Williams v., 288. Ash et al. v. Willet, 196. Aspinall, Miles v., 40. Asselin v. Belleau, 120. Asselin v. Monjeau, 241. VHI TABLE OF CASES. Aston v. Benn et al.,43. Atcheson, Quinn v., 50, 51, 314. Athenaeum Insurance Society, Somers v., 117, 157,220, 229. Atkins et al., Campbell and, 40. Atkins et al., Quebec Building Society v., 206. Atkins, White v., 106. Atkinson, Forbes et al. v., 227. Atkinson v. Nesbitt, 36. Atkinson, Wilson and, 141. Atlantic, The, 186. Atwater et al. v. Bouthillier, 91. Atwater, O'Neil and, 219. Attwell, Robertson et al. v., 271, 274. Atwell v. The Western Assurance Co., 155. Aubert, Magreen v., 292. Aubertain, Birs v., 41. Aubin v. Lislois, 5. Auclaire v. Low, 126. Audet v. Hamel, 262. Audy, Logan v., 290. Auge-v. Le Cure de la Pointe-aivx- Trembles, 139. Auger, McGarvey v., 204. Auger v. Gingras, 75. Auld v. Laurent, 278, 341. Aumais, Daoust v., 63. Aurora, The, 324. Austin, Scott et al v., 289. .Ayer, Bovven v., 312. Aylen, Chapman et al. v., 215, 216. Aylmer (Lord), Harvey v., 137. Ayimer Mutual Steam Mill Co., Ken- nedy v., 115. Aylwin, Cuvillier and, 25. Aylwin et al. and Gilloran, 277. Aylwin v. Allsopp, 105. Aylwin v. Judah, 6, 84, 341. Aylwin v. McNally, 279, [note 279.] Babin et ux. v. Caron, 238. Baby, Castle v., 15. Baby, Major et al. v., 209. Bacquet, Perrault et al. v., 239. Bacquet, Rouleau v., 30, 231. Badeau v. Brant et ux., 247. Badeaux, Whitney v., 232. Bagg et al. v. Wurtele, 35. B'ile v. Nelson, 273. Baillargeon, Lelievre v., 218. Barlev v. McKenzie et al., 129. Baircl', Reg. v., 266. Baker v. Young et al., 97, 132. Baldwin v. Binrnore, 135, 279, 280. Baldwin v. Gibbon, 64, 299. Ballantyne et al. v. Worden, 77. Ball, Chamberlin and, 121, 250. Ball v. Lambe, 336. Ballard, Carroll v., 328. Bankier v. Wilson et al., 58. _ Bank B. N. A. v. Cuvillier et al., 119, 164, 330. Bank B. N. A., McPherson v., 114. Bank B. N. A. v. Taylor, 222, 232. Bank Mid. District, Hertel de Roiwille et al., and, 190. Bank of Montreal, Coates v., 48. Bank of Montreal and Glen et al., 41. Bank of Montreal, Knapp etal. and, 44. Bank of Montreal v. Langlois, 247. Bank of Montreal, Nesbitt and, 100. Bank of Montreal v. Simpson et al., 318. Bank of Upper Canada v. Alain, 48. Bank of Upper Canada v. Kirk, 56. Banque dn Peuple, La, Desjardins v., 9, 97, 342. Banque du Peuple v. Donegani, 12*j 209,276,311. Banque du Peuple v. Gingras, 309. Banque du Peuple v. Gugv, 101, 126, 293. Banque du Peuple v. Roy, 111. Barbeau et al., Reg. v., 61 . Barbeau v. Grant, 238, 239. Barber et al. v. O'Hara, 137. Barbier v. Verner, 166, 176. Barbour et al. v. Fairchild, 33, 34. Bardy v. Huot, 239. Bareille, Beaudry et al. v., 36. Barnard, Venuer v., 208. Barney v. Harris, 53, 225. Barrett, Cuthbert v. 49. Barret, Lampson v., 275. Barrette and Workman, 32. Barthe, McCarthy et al. v., 250. Bastien, Charlebois v., 215. Bastien et al., Elliott v., 223. Bastien, School Commissioners of 9t. Michel v.. 4. Bates, Dinning v., 214, (note 215.) Bates v. Foley, 219. Batten v. Desbarats, 75, 2 13 Battle, Meade v., 230. Baudet, Derouselle v., 306. Baudon, Dumontier v., 254. Bazin et al., v. Crevier et al., 23 62 Beacon, Gibb et al., and The^ 25* 157 Beacon, Fire and Life Ass'. Co. of London v. Whyddon,225. TABLE OF CASES. IK Beaubien et al.,Fabrique deSt.Iguace v., 109, 217. Beaubien et al.,Durocher et al. v., 194. Beaubien and Husson, 246. Beaucaire v. Lepage, 292. Beauchemin, Bernier v., 177. Beaudet, Dunn and, 316. Beaudet, Hall and, 74. Beaudet and Proctor, 21. Beaudin, Perras v., 134, 205. Beaudoin v. Dalmasse, 241. Beaudoin, Gravelle v., 241. Beaudry et al., v. Bareille, 36. Beaudry, Cockburn v., 296, 314. Beaudry and The Corporation of Montreal, 126. Beaudry, Davis and, 14, 274. Beaudry, Gironard v., 110. Beaudry v. Lafamme, 14, 232, 245. Beaudry and Papin, 169, 200, 300. Beaudry v. Plinguet, 214, (note 215.) Beaudry and Proulx, 161, 319. Beaudry, Roy v., 78. Beaudry v. Smart et al., 201. Beaudry v. Thibodeau, 167. Beaudry v. Vinet, 75. Beaufield et al., v. Wheeler, 230,274. Beaugie, Ducasse v., 78. de Beaujeu, Bizaillon v., 164. de Beaujeu, Exp., 62. de Beaujeu, Filion et al. v., 3, 107, 108, 294, 308. de Beaujeu and Grbulx, 301. de Beaujeu v. Masse, 153, 215. de Beaujeu v. Rodrique, 37, 215. Bea\ilieu, Attorney General v., 40. Beaulieu v. Lee, 228. Beaupre v. Martel, 122. Beauregard, Senecal and, 127. Beattie, Campbell v., 258. Bechard, Cartier v., 73. "Bechette, Petit v., 194. Beckett, Donald v., 288. Bedard, Bourassa and, 245, 335. Bedard and The Corporation of St. Charles Borromee, 21, 23. Bedard v. Dorion, 175.. Bedard, Duchesnay et al. v., 140, 144. Bedard v. Dugal, 146. Bedard, Exp., 193. Bedard, Kennedy v., 291. Begin et al., v. Bell et al., 39. Begin, Couture v., 105. Belair v. Gaudreau et ux., 139. Belanger et al. v. Cyr, 185. Belanger v. Durocher, 98. Belanger, Exp., 62. Belanger, Fafard v., 245. Belanger, Lauzon et al. v., 142. Belanger v. Levesque, 177. Belanger v. The Mayor, &c, of Mont- real, 83. Belanger and Moge, 30,231. Belanger v. Munn, 290. Belanger and Papineau, 300. Belanger, Taillefer v., 185. Belinge, Cardinal and, 286. Beliveau^ Beauchemin v., 177. Beliveau, Bernier v., 177. Beliveau, Bleau, v., 139. Beliveau and Juneau, 254. Beliveau, Macfarlane v., 52, 57, 338. Beliveau v. The Mayor, &c, of Mont- real, 93. Beliveau, Viger and, 13, 24, 172, 176. Bell et al., v. Begin et al., 39. Bell, Bressler v., 220. Bell v. Conlin, 277. Bell et al. Dinning v., 104. Bell, Filmer et al. and, 304. Bell et at, v.- Knowlton et al.,224,288. Bell v. Leonard, 27. Bell v. Rigney et al., 236, 313. Bell, Sarony v., 17. Bell v. Wilson, 178. Belle, Dawson and, 24, 127. Belleau, Asselin v., 120. Bellean v. Degourdelle, 161, 204. Belleau, Poliquin v., 141. Belleau and The Queen, 95, 171, 229. de Bellefeuille'v. de Bellefeuille, 109. Bellemare, Mullins and, 82. Bellemare, Thompson and, 82. Bellingham et al. and Freer, 306. Bellingham, McCord v., 110. Bender, Cherrier and, 13. Bender v. Jacobs, 291. Benjamin v. Brewster, 132. Benjamin, Charbonneau v., 191, 280. Benjamin et al. v. Clarke et al., 190. Benjamin et al. v. Duchesnay and vir., 241. Benjamin v. Gore, 111, 161. Benjamin, McCann v., 300. Benjamin, Morgan v., 294. Benjamin et al. v. Wilson, 50, 54, 264. Benn, Astor v., 43. Benning, Monaghan v., 78. Benning v. Montreal Rubber Co., 209. Benninger et al. v. Gates, 128. Benoit et al., v. Marcile, 336. Benoit v. Peloquin, 215. TABLE OF CASES. Benoit v. Tanguayand Tanguay and Bouthillier, 108. Benson et al., Cochrane and, 252. Benson, Easton v., 223. Benson v. Ryan, 226. Bentley, Hillier v., 146. Bergeron et al. Addison v., 227. Bergeron et al., Chisholme v., 234. Berlinguet and Drolet, 33. Bernard, Trustees Montreal Turnpike Roads and, 196. Bernesse dit Blondin v. Madon, 134. Bernier v. Beauchemin, 177. Bernier v. Beliveau, 177. Bernier and Langlois, 326. Bernier, Mailhot v., 54. Bernier, Marois v., 87. Bernier v. Vachon et al., 33. Berriau and McCdrkill, 24. Berry, Chaput and, 107. Berry v. Cowan, f36. Berry v. Dixon, 51. Berry and May, 22, 49, 50, 55. Berthelet v. Galarneau, 104, 293. Berthelet and Guy et aL, 32, 34, 123. Berthelet v. Muir et al., 31. Berthelet and Turootte, 73. Berthelot, Ross and, 170. Bertrand v. Dickinson, 69. Bertrand v. Gugy, 163. Bertrand, Lambert v., 46. Bertrand v. Saindoux et al., 189. Berube, Reg. v., 120. Bethune, Wardle and, 20, 344. Bezeau, Power v., 109. Bigelow, Keith v., 73. Bigge et al., Hill and, 137. Bignell v. Henderson, 107. Bilodeau, Harper v., 173. Bilodeau v. Lefrancois, 6, 222, 312. Bilodeau v. Sylvain, 191. Binmore et al., Baldwin v., 135, 279, 280. Binmore et al., Gould et al. v., 46. Binet, Exp., 185. Binet, Gironx v., 198. Binette, Fillion et al. v., 114. Birch, Andrews v., 14, 239. Birks, Read v., 78. Biroleau v. Derouin, 43, 247. Biroleau dit Lafleur v. Lebel, 27 1 . Birs v. Aubertain, 41. Bishop of Quebec, Wurtele and, 22. Bisset, Stevenson et al. v., 162, 248. Bisson et al. v. Michaud et al., 242. Bissonnette and Bissonnette, 3, 262. Bissonnette, Brosseau arid, 197. Bitner, Marcoux v., 218. Bizaillon v. De Beaujeu, 164. Black, The Attorney General and,. ISO, 237. Black v. Newton et al., 271, 298. Blackburn v. Walker, 216. Blackiston v. Patton, 136. Blackiston v. Rosa, 226. Blackmon et al., Redpath v., 76. Blaiklock, Gauthier v., 86. Blair, Stuart, and, 242. Blais, Botichard and, 141, 147. Blais, Bussiere v., 332. Blais, Girard v., 143. Blais v. Lampson, 222, 294. Blais and Simoneau et al., 295. Blake et al. and Panet et al., 298. Blanehard, Ruston and, 257. Blarichard, Warner v., 310. Blanchard and Whiteford, 42. Blanchet and Blanchet, 101. (Ntfte 101.) Blanchet et nx. v. Charron, 299. Blanchet et al. Guay et al. and, 199. Blanchet, Lynch and, 19. Blanchet v. Martin et al., 104, 239. Blanchet, Mercier, v., 107. Blanchette, Guenette v., 132. Blanckensee* and Sharpley, 22, 53> 55. Bleau v. Beliveau, 139. Blennerhasset, Chapman- v., 48, 53. de Bleury v. Gauthier, 216. de Bleury, Neveu et al. v., 88, 117. Board of Arts, McNevin v., 71. Bogle etal. and Chinic, 172, 208. " Bois, Reg. and, 261. Boisseau v. Pilot, 298. Boisseau, Tyre and, 175. Boissonnault and Oliva, 267, 295. Bolduc, Samson v., 261. Bonacina v. Bonacina and Mcintosh, 119, 160,289,335. Bonacina and Seed, 313. Bonneau, Gagne v., 238. Bonneau v. Mqquin, 125. Bonner, Johnston and, 278. Bonneville, Tavernier v. 177. Bonnier, Gadbois v., 14. Boomer, Evans and, 87. Booth v. Montreal and Bytown R»&- way Co., 223, 294. Borne v. Perrault et al., 58. Borne v. Wilson et aL, 216. * Note — Written Blackensee 6 L. C. J ., p. 288; TABLE OF CA&ES. XI Bosquet v. McGreevy, 213. Boston, Champagne' v., 298. Boston v. Classon, 140. Boston, Fautetix and, 150. Boston et al., Irwin and, 233, 296, 297. Boston v. L'Erige dit La Pl&nte, 75, 112,227,291. Boston et al. and Lelievre and The Attorney General, 23, 341. Boston, Leverson et al.and, 13, 86, 119, 136, 205, 233. Boston, Quentin and, 297. Boston, Sexton v., 89, 337. Boston, Stevenson et al., v., 298. Boston and Taylor, 37. Boston et al. v. Thompson, 280. Boswell and Denis, 267. Boswell et ah, Jamieson et al. and, 128. Boswell and Kiilborn et al., 25, 92, 281, 289. Boswell v. Lloyd, 30, 37, 178,227,231, 295, 343. Boswell, Wurtele et al. v., 35. Botineau, Exp., 62. Botterell, Les Dames Religieuse's Ursu- lines and, 214. Bottomley et al. v. Lumley, 48. Bouchard and Blais, 141, 147. Bouchard et al., Noad et al. v., 203. " Bouchard, Rimmer v., 300. Bouchard, Tremblay v., 261. Boucher et al., Exp., and Langellier et al., 63. Boucher v. Forneret, 172. Boucher, Groom and, 60. Boucher, Labreque v., 142. Boucher and Latour ct al., 96. Boucher v. Lemoihe, 205, 226. Boucherville v. The Grand Trunk Railway Co\, 95, 238. Boudreau et al. v. D' Amour, 36. Boudreau, Delesderniers and, 237, 338. Boudreau v. Gascon, 230. Boudreau et al., Gauthier v., 318. Boudreau v. Lavender, 221. Boudreau etal.,Loranger and, 194, 313. Boudreau et al. v. Poutre, 206. Boudreau v. Richer, 85, 221. Boudreau, Soupras v., 206. -Bondria et vir. v. McLean, 189. Boudrot v. Locke et al., 272. Boulanget v. Doutre, 171, 278. Boulanget v. Mayor, &c, of Montreal, 32. Bourassa and Bedard, 245, 335 j 7 ,_, * Note. — Written « Breaster " in L. C. ft., vol. 7, p. 55. Boutifissa and Gariepy, 287. Bourassa v. Haws, 272. Bourbeau, Exp., 72. Bourdages, Dupuis v., 123. Bourdages, Exp., 304, 309. Bdurflages, Pacattd v., 32. Bourdeau v. Dupuis, 202. Bourgeois, Ducondu v., 5. Bourque, Dickinson v., 133. Bonrque, ImbauU and, 1 9. Bourrett et al., St. Arnaud v., 1&9. Bouthillier, Atwater et al. v., 91. Bouthillier, Lyman et al. v., 91. Bouthillier, Moffatt'et al. v., 91. Bouthillier, Torrance and, 91. Bouthillier v. Turcotte, 27, 71, 213. Boutillet, Corporation of Vercheres v., 197. Bouvier and Reeves, 24. Bowen v. Ayer, 312. Bowker v. Chandler, 13, 116, 127,212. Bowker et al., Rice v., 247. Bowker, Fenn v., 128, 129. Bowker and McCorkill, 112,269, 338. Bowman, Stuart et al. v., 8, 108, 110, 243, 312. Boyd, Turner v., 215. Boyer dit Laderoute, Exp., 61. Boyer, Lefcbvre et ux. v., 174. Boyer, Lina et al. v., 242. Boyer et al. v. Prieur et al., 281. Boyer v. Slown et al., 123. Bradbury et al., Hall v., 221. Bradbury et al., McLaughlin ct al. v., 143. , Bradbury, Tollock and, 71, 319. Bradford, Fraser v., 115. Bradford v. Henderson, 230. Bradley, Maguire v., 279. Bradshaw, Collins v., 88, 245. Brant et nx., Badeau v., 247. Brault, Metriss6 et al. and, 22, 98, 174, 190, 191, 195. Brawders, McGinn and, 20, 105. Breakey, King and, 36. Bresler, Laing et al. v., 272, 273. Bresler, Macfurlane v., 111. Bressler v. Bell, 220. Breux, Trevost et al. v., 191. Brewster, Benjamin v., 132. Brewster* et al. v. Hooker et al., 59. Brewster, Joseph v., 97. Brewster, Whitney v., 1, 89. Bricault, Pangman v., 290. Bridgman and Ostell, 78. XII TABLE OP CASES. Brigham v. McDonnell et al., 289. Brillon, Mercier v., 139. Brisson v. McQueen, 49, 97, 166. Bristow v. Johnston, 201. Bristow and Rolland, 23, 264. British American, The, and Joseph, 159. British American Friendly Society, Browning v., 44. British American Land Co. v. Stimpson, 279. British Fire and Life Assurance Co. and McCnaig et al., 224. British Tar, The, 328. Bro v. Bureau, 128. Brochu v. Fitzback et al., 312. Brochn, Perrault v., 199. Brock et al. v. Theberg >, 223. Brockville and Ottawa Railroad Co., Frothingham et al. v., 1, 293. Brodeur, Choquette v., 172, 208. ' Brddeur et nx., Dalpe v., 106, 121. Brodeur, Exp., 61. Brodie et al. v. Cowan, 126, 134. Brooke v. The City Bank, 118. Brooks et al v. Clegg, 150, 251. Brooks et al., Norse anil, 225. Brooks and Whitney, 135,307. Brossard v. Murphy, 174,229. Brosseau and Bissonette, 197. Brother v. Fitzback et al., 6. Brown et al., City Bank v., 307. Brown v. Clarke, 142, 243. Brown, Gale v., 49. Brown, Grant and. 174. Brown v. Gugy, 83, 111, 267, 337, 341. Brown et al. v. Hartigan, 35, 118. Brown v. Hogan et al., 139. Brown v. Janes, 175. Brown v. Laurie, 46. Brown v. Mailloux et al., 115, 203. Brown, Matte and, 80. Brown et al., Mitchell and, 317. Brown et al., Moss et al. v., 74. Brown v. Mclnenly, 261. Brown and Oakman et al., 140, 143. Brown et al., v. Smith et al., 28, 140, 149. Brown, Wallace v., 125, 126. Brown, Wilson v., '. 98. Browne, Dow v., 229, 250. Browne v. School Commissioners of Laprairie, 286. Browning v. British American Friendly Society, 44. Browning v. Gale,* 195. Bruce v. Anderson, 42. Bruce, Hunt v., 113, 168. Bruce, Reg. v., 201, 204. Bruneau and Charlebois, 310. Bruneau v. Fosbroke, 122. Bruneau, Gravel v., 104. Bruneau v. Miller, 55. Bruneau and Prevost et al., 24. Bruneau v. Robert, 134. Brunelle, Chaille and, 122. Brunet v. Desjardins, 104, 239. Brunswick, The, 192, 193. Brush v. Jones, 201. Brush v. Wilson, 24, 119, 124, 264. Bryson and Dickson, 42. Buchanan et al. v. Cormack,239, 241. Buchanan, Patton and, 141. Bull v. Cuvillier et al., 251. Bullitt et al. v. Shaw et al., 252. Buhner, Lisotte v., 230. Bunker v. Carter, 283. Bureau, Bro v., 128. Burke, Exp., 245. Burke, Whitney v., 251. Burkitt, Wheeler v., 220, 225, 292. Burns v. Hart, 39. Burns, Lee v., 197. Burns, Ross et al., v. 52. Burroughs, Dewitt and, 256. Burroughs, Exp., 233. Burroughs and Molson et al., 37, 151, 163, 222, 275, 276, (note 276.) Burroughs and Simpson, 21, Burroughs, Walker v., 205. Burry et al. v. Shepstone et al., 213. Busby, Archambault and, 215. Busseau, Leclnc and, 321. Bussiere v. Blais, 332. Buteau, Cuvillier et al., 36. Butcau, Fraser et al. v., 264. Butler, Ford v., 13, 120. Butler v. Macdonall, 180. Butts, L'Hoist v., 49. Byrne et al. v. Fitzsimmons, 269, 301, 337. Bytown, The, 32, 66, 302. Cadieux and Pinet et al., 43, 147. \ " Cadoret, Montineau v., 210. Cadwallader v. The Grand Trunk Railway, 58. Caisse v. Hervieux, 221. Caldwell and LesjCommissaires d'Ecole ' de St. Patrice, 104. Caldwell and The King, 333. ♦ Note. — In one of the reports called Yule. TABLE OF CASES. xm Camillas, The, 111, 27, 64,, 138, 167, 234. Campagna v. Hebert, 180. Campbell and Aitkins et al., 40. Campbell, Arnold v., 207, 209. Campbell et al. v. Beattie, 258. Campbell et al. v. Huchison, 302. Campbell et al. v. Jones et al., 59. Campbell et al., Lovell v., 168, 169. Campbell and O'Donaghue, 135. Campbell v. Shepherd, 1C0. Campbell, Vaughan v., 133. Campeau, Drapeau et al. v., 181. Canada Ass. Co. v. Freeman, 259. Canada Baptist Missionary So., Forsyth v.,311. Canada Lead Mine Co. v. Walker et al.,76, 212. Canadian Inland Steam Navigation Co. v. Reffenstein, 253. Cannon v. Larue et al., 180. Cannon v. O'JNeil, 7, 219. Canton, Exp., 257. Captain Ross. The, 186, 327. " Carden et al.,v. Finley etal., 102, 114, 125, 342. Cardinal and Belinge, 286. Cardinal, Meunier v., 114, 153. Carrignan and Montreal Harbour Com- missioners, 61, 81. Carmichael, Moss v., 115. Caron, Babin et ux., v., 238. Caron, Judge, 259. Caron, Leclere v., 122. Caron v. Michaud, 114. Caron, Gauvin v., 89. Carpentier, Exp., 273. Carpentier, Page v., 224. Carrier v. Angers, 145. Carroll v. Ballard, 328. Carroll, Reg. v., 88. Carsant v. Perry, 252. Carson v. The Mayor &c, of Montreal, 94. Carter, Bunker v., 283. Cartier v. Bechard, 73. Cartier et al., Holmes v., 146. Cary, Charlton v., 153. Cary v. Ryland, 190. Casavant and Lemieux, 143, 331. Casey, Earl et al. v., 175, 329. Casey and Goldsmid et al.,22, 157. Casey v. Villeneuve, 226. Casgrain, Garon and, 265. Casson v. Thompson, 150. Castle v. Baby, 15. Castle v. Wrigley, 339. Castonguay, Joseph v., 3, 343. Castongu6 v. Masson et al., 288. Cavenagh, Morkill v., 139. Caverhill et al., Henderson v., 59. Cay, Joseph v., 204, 209. Cazelais and Ramsay, 143. » Chabot, Dillon v., 203. Chabot, Exp., 43, 147, 256, 258. Chabot, Noel v., 227. Chabot et al. v. Sewell, 131. Chagnon, Exp., 61. Chagnon, Lafond et al. v., 263. Chaille and Brunelle, 122. Chalifoux, Fitzback et al. v., 273. Chalifoux v. Thoin dft Roch, 194. Chalmers v. The Mutual, 155. Chamard, Lyman et al. v., 225, 250. Chamberlain et a)., Foster et al. v., HI. Chamberlain, Langley v., 52. Chamberlin v. Ball, 121, 250. Champagne v. Boston, 298, Champlain and St. Lawrence Railroad, Richard v., 223. Champlain and St. Lawrence Railroad Co., Roy v., 28. Champlain and St. Lawrence Railroad Co. v. Russell, 293. Champlain and St. Lawrence Railroad Co., Tremblay v., 28. Chandler and The Attorney General, 162. Chandler* Bowker and, 13, 116, 127, 212. De Chantal et al. and De Chantal, 160. De Chantel v. Pominville, 160. Chapais v. Lebel, 144. Chapdelaine v. Morrison, 74. Chapdelaine, Poutre and, 20. Chapleau, Maille and, 1 9. Chapman et al. v. Aylen, 215, 216. Chapman v. Blennerhasset, 48, 53. Chapman v. Clark, 200, 209, 293, 310, 314. Chapman, Gamsby et al. and, 252. Chapman, Gosselin v., 21. Chapman v. Masson, 13, 116, 127,213. Chapman v. Nimmo, 166. Chapman, Torrance v., 34, 184, 230. Chaput v. Berry, 107. Charbonneau v. Benjamin, 191, 280. Charbonneau, Exp., 72. Charest and Rompre, 21. Charlebois v. Bastien, 215. Charlebois, Bruneau and, 310. XKV TAB£E Of CASES; Charlebois v. Coulombe, 103. Charlebois, Genier v., 230. Charlebois and Headley, 18. Charlton v. Gary, 153. Charpentier,. Piatt and, 3«5. Charron, Blanche* et iix. v., 299. * Charron, Dubfe v., 334. , Chasseur v. Hamel, 301. Chateauvert et al,, Noad v., 88, 245. Chaumont, Grenier v., 145, 261. ■Chaurette, Dumont et al. v., 125> Chaurette v. Rapin et al., 307. Chauvin, Lacoste v., 241. Chef v. Leonard et al., 96, 122. Chenevert, Seneoal and, 105, 165,212. Cherrier v. Coutlee et al., 18. Cherrier v. Bender, 13. Cherrier and Titus, 131. Cheval dit St. Jacques v. Morrin, 71, Chevalier, Lamothe and, 31, 131,220. Chevaler et al., Ranger v., 220. Childs et al.,Edmonstoneet al.v., 119, 226. Childs, Howard et al. v., 4. Chinic, Bogle et al. and, 172, 208. Chisholme, Bergeron et al.,234. Choall, Masson et al. v., 209, 310. Cholet v. Duplessis et al., 189, 246. Choquet, Jette and, 202 [note 203]. Choquet, MeGinnis v., 318. Choquette v. Brodeur, 172, 208. Choquette et al., Donegani v., 331. Chouinard v. Demers, 260, 318. Chouinard, Gugy and, 181, 205. Chretien v. Roy, 32. Christin, Pepin v., 5. Cinq-Mars, Marcband v., 274. City Bank, Brook v., 118. City Bank v. Brown et al,, 307. City Bank v. Coles, 118. City Bank, The, v. The Harbour Com- missioners of Montreal, 15. City Bank v. Hunter, 272, 274. City Bank v. Pemberton et al., 294. City Bank v. Saurin, 223. City of London, The, 77. Clairmont et al. v. Dickson, 129, 176. Clapham, Lloyd v., 9, 97, 204, 282, Clapham, Pozer v., 121. Clapin v. Nagle, 47, 103,370. Clark v. Lomer, 178. Clark et al. v. Murphy et al., 321. Clarke et al., Benjamin et al. v., 190. Clarke, Brown v., 142, 243. •Clarke, Chapman v., 200, 205,293^310, 314.. Clarke et ajj v. Oar*p et al., 77; l.H,. 151,163,225,335. Clarke, Converse and* 103. Clarke, Idler v., 278* Clarke, Johnson v., 6, 252. Clarke a»d Johnston, 227. Clarke:et aL, Knowlton et al. v., 2f* Clarke, Larocque v., 52. Clark*, v. McG*ath, 3, 168, 228. Clarke et al., Rainsford et al. v., 174. Clarke, Whitney v., 1 18, Clarke et al. v. Wilson, 131. Clarkson, Guy v., 132. Classon, Boston v., 140. Clegg, Brooks et al. v., 150, 251. Clement v. Geer, 102. Clernent, Naud v., 8. Clement v. Page et al., 320. Clerouxet al. v. Lavoie et al., 110. Close v. Close, 176. Clouthier v., Clouthier, 132, 190. Cloutier, Talon v., 219. Clugston, Exp., 260. ( Coates and Bank of Montreal; 48. Cochran and: Benson et al., 252. Cochrane, Leeming v., 50. Cochrane, Parker v., 134. Cockbnrn v. Beaudry, 296, 314. Cockburn v. Starnes, 296. Cockburn v. Tuttle, 296. Codere, Roy v., 122, 153. Coldstream, The, 27, 30, 95, 170,. 192, 195, 325. Coles, City Bank v., 118. Colina, The, Mercier v., 12. Collins v. Bradshaw, 88, 245. Collette, Dansereau v., 265. Colman et al. v* Fairbairn, 129. Colville et al., Nye. and, 117, 145, 264, Commissaires d'e.ool« d' Acton v. G. T, Railway Co., 32. Commissaires d'eeole de Ste, PhilQ- mene, Pelletier v., 288. Commissaires d'ecole de St. Patrice, 104. Commissioner of Indian Lands, v. Payant, 151. Commissioner of Public Works, Young, et al. v., 29. Compain et al., Shearer v., 189, 247. Comstock v. Lesieyr, 288. Comte v. La Fabr-ique de St. Edouaifc 127. Comte et al., The Queen and, U^M^t 146. Conlin, Bell v., 277.. TABLE OF CASES. xv.. Connoissant etal., Lauzon v., 18. Constable et al. v. Gilbert et al., 276, an. Converse and Clarke, 103. Coo, Rice v., 27. Cook et al., Varin v., 79. Cook, Weymess et al. and, 45. Cooper v. Downes, 139. Cooper v.McDoHgall, 194. Cooper, Shaw- el> al. v., 258. Copartt et al. v. McMaster, 90. Copps and Copps, 227. Corbeille, Masson et al. v., 320. Corbet, Frechette v., 99. Cornell v. Merrill, 50. Cormack, Buchanan et al. v., 239, 241. Corporation de Chambly v. Loupret, 2,6. Corporation du comte d'Yamaska and Rheaume, 197. Corporation of Levis, Grand Trunk and, 197. Corporation du Petit Seminaire de Ste. Therese, Laurie v., 84. Corporation of Point Claire, Leclerc v., 197. Corporation of Point Claire and Valois et al., 203. Corporation of Portuguese Jews v. David etal., 292. Corporation of Sheffbrd, Reg. v., 198. . Corporation of Col. of Ste. Anne v. Tasehereau, 239. Corporation of St. Charles Borrom6e, Bedard and The, 21,23. Corporation of St. Ephrem d'Upton, McDougall and, 31, 219. Corporation of St. Jerusalem v. Quinn, 83. Corporation of St. Philippe, Exp., 276. Corporation of St. Philippe and Lussier, 24. Corporation of Ste. Rose v. Leprohon, 48. Corporation of St. Roch, Langlois v., 197, 266. Corporation of Terrebonne, Valin v., 263, 293. Corporation of Vercheres v. Boutillet, 197. Corriveau, Exp., 137. Corriveau v. Pouliot, 172. Corse et al. v. Corse-, 17. Corse v. Taylor, 208. Cdte, ©knare and, 194. C6te,'Gault-et al. v., 22fc C6t«, Hamel et al. v., 51, 55. Cdte, Lemieux v., and Cdte, 41, 246, ' 252. C6te, Martin v., 314. C6te,et al. and Morrisoai, 133,240, 335. Coterell v. Gorrnley et al., 75. Couillard v. Lemieux, 304, 337. Coulombe, Charlebois v., 103. Coulon et. al., Exp., 12. Counter and MoPherson et al., 76. CourceMe v. Longpre, 31. Courville v. Levar, 216 Courtney et al., Handyside et p.1. v., 249. Courtney, Seed v. , 248. Cousine, Exp., 82. Cousineau, Mitchell and, 330. Coutlee et al., Cherrier v., 18. Coutlee, Rose v., 24., 32, 121, 208. Couture v. Begin, 105. Couture, Falardeau v., 94. Couvrette, Delisle v., 206. Cowan, Berry v., 136. Cowan, Brodie et al. v., 126, 134. Cowan, Darling v., 49, 223. Cowan, Merizzi and, 268. Cowan v. Turgeon, 2 ' 5. Cox, Mackie. v., 54. Coxworthy et al., Jackson et al. v., 165. Craig, Whitney v., 244, 307. Crapser, Leclaire v., 154, 156. Crathern et al. v. Les Sceurs deSt. Joseph de 1' Hotel -Dieu, 176. Crawford, Denis v., 125, 178, 269. Crawford v. Fyson, 55. Crawford, Larue v., 72. Creamer, R. v., 13, 88. Crebassa, Massue v., 121, 122,208,250. Crebassa etal. v. Peloquin, 339. Creole, The, 64, 218. Crescent, The, 66, 302. Crevier et al., Bazin et al. v., 23,62. Crevier et al., Gagnier v., 220, 225. Crevier et al., Leroux et al. v., 106." Crevier, Lavoie v., 35, 240. Crevier et al., Normand and, 145. Crevier v. Sauriole, 241. Crochetiere, Armstrong v., 164. Croteau, Attorney General v., 40. Croteau v. Quintal, 295. Crump v. Middlemiss, 194. Cullin, McBean v., 216. Cullen, Osgood and, 24. Cumbedand; The, 32, 64, 65, 210, 218, 235,270, 325. XVI TABLE OF CASES. Cumming v. Dickey and The School Commissioners, 128. Cumming, Exp., 60. Cumming et al. v. Mann, 281, 313. Cummings et ah v. Smith et al., 10, 33, 34. Cumming v. Taylor, 4, 5. Cumming and Quintal, 283. Cunningham, Daly et al. v., 29. Cunningham et al. v. Ferrie et al., 223. Cunningham, Leverson et al. v., 135, 204, 209, 272, 288, 296, 298. Cure ,de La Pointe aux Trembles, Aug6 v., 139. Cure et Fabriqne de St. Ignace v. Beaubien, 109. Cusack, Fitzpatrick v., and The G. T. R., 59. Cusack v. The Mutual, 158, 186. Cusack et al. v. Paton, 122. Cushing v. Davies, 162, 342. Cuthbert v. Barrett, 49. Cuthbert v. Cuthbert, 109, 211. Cuthbert v. McKinstry, 181. Cuthbert v. Tellier, 312. Cutler, Gillin and, 247. Cuvillier and Ayhvin, 25. Cuvillier et al., Bnteau, 36. Cuvillier et al., Bank of B. North America v., 115, 164, 330. Cuvillier, Joseph v., 39. Cuvillier et al. v. Munro, 193. Cuvillier et al., Bull v., 251. Cuvillier et al. v. Bnteau, 36. Cyr, Belanger et al. v., 185. Dsedalus, White v., 160, 301, 319, Dagenais, Exp., 62. Dagenais, Gauthier v., 107, 160. Dahlia, The, 65, 66, 116, 180, 315. Daigle, Exp., 48. Dallimore, Exp., 332. Dalmasse, Beaudoin v., 241. Dalpe v. Brodeur et ux., 106, 121. Darpe v. Pelletier, 245. Dalphe v. Rochon, 93. Dalrymple, Rassette v., 207. Dalton, Exp., 80. Dalton v. Sanders, 265. Daly et al. v. Cunningham, 29. Daly, Morin v., 144, 2Q5. Daly, Morrin v., 86, 146. Daly, Ross v., 142. Daly, White v., 255> D'Amour, Boudrean et al. v., 36. Damour et al. v. Guingne, 127. Dames Religieuses de Quebec v. Perry, 227. Dames Religieuses Ursulines andBot- terell, 214. Danais and C6te, 194. Danis, Robert v., 102, 180. Dansereau v. Collette, 265. Dansereau and Maxham, 165. Dansereau et al. v. Prive, 45. Dansereau, Whitney v., 79, 93. Daoust v. Aumais, 63. Daonst v. Deschamps, 85. Daoust, Lantier and, 128. Darah, Rowell v., 63. Darche et al. v. Dubuc, 84. Darche, Gauthier et al. v., 4. Darling v. Cowan, 49, 223. Darling, McElwee v., 3, Darling, The Sol. Genl. v. Two Casks of Planes and, 220. Darling, Stirling et al. v., 208, 297. Darvault v. Fournier, 3. Dastous v. Hutton, (note 136.) Date, Hearle and, 114,129. David et al., Corporation of Portuguese Jews v., 892. David v. Girard et al., 9. David and Hart, 42. David, Harris v., 6. David v. Hays, 144, 238, 247. David, Morson v., 319. David, Ramsay v., 38. David v. McDonald et al., 116, 342,343. David and Thomas, 277. Davidson, Paterson v., 59. Davies, Cushing v., 162, 342. Davies, Exp., 61. Davis and Beaudry, 14, 274. Davis v. Maguire, 202. Dawson and Belle, 24, 127. Dawson, Exp., 253. Dawson, Quebec and Richmond Rail- road Co. v., 228. Day, Glackemeyer v., 218. Day and Sculthorpe, 251. Dean and Jackson, 234. Dease, Mackintosh et al. v., 309. Dease and Taylor, 22. Debartzch, McBean v., 73, 124. Decelle, Muir and, 287. Dechene v. Faucheret al., 293. Decourtnay, Vannevar et al. v., 40. Defoy v. Hart, 218. Defoy, Swanson v„ 175. Degourdelle, Belleau v., 161, 204w Delagorgendiere, Taschereau v., 40. TABLE OF CASES. XVII Delard v. Pare et ux., 139,243. Delery and Lemieux, 219. Delery v. Quig, 131. Delesderniers and Boudreau, 237, 338. Delesderniers, Halcro and, 219, 228. Delesderniers v. Kingsley, 145. Delesderniers, Macfarlane v., 338. Delesderniers, Prevost v., 103, 270. Delisle v. Couvrette, 206. Delisle v. Delisle, 204. Delisle et al., Joseph v., 249. Delisle et al., Kershaw v., 125. Delisle et al., Lalouette dit Lebeau and, 213. Delisle v. McDonald, 251. Delisle, Macfarlane v., 35, 309. Delisle v. MeGinnis, 240. Delisle v. Puchard, 107. Delisle, Simpson et al. v., -3 18. Delisle, St. John v., 35, 230. Deloge, Lane et al. v., 150. Delta, The, 37. Delvechio v. Joseph, 4. Delvecchio, Leblanc and, 129. Demers, Chouinard v., 260, 318. Demers, Exp., 62. Demers, Foisy v., 7. Demers, Homier v., 70. Demers, Lefebvre v., 3. Demers, McKay v., 310. Demers and Parant et al., 112, 332. Demers, Pemberton et al. v., 1 17. Deniers, Picault v., 10, 242. Dendurand et ux. v. Pinsonnault, 94. Deneau v. Frothingham, 334. Denis, Boswell and, 267. Denis v. Crawford, 125, 178, 269. Denis v. St. Hilaire, 86. Denison, Richard and, 77. Derome v. Lafond, 86. Derouin, Biroleau v., 43, 247. Derousselle v. Baudet, 306. Derousselle, Pare and, 314. Desallier and Gigueres, 175. Desautels v. Perranlt, 205. Desbarats, Batten v., 75, 213. Desbarats and La Fabrique de Quebec, 181. Desbarats v. Lagrange and 'Fisher, 233. Desbarats v. La Terriere, 105. Desbarats, Mallett and, 209. Desbarats v. Murray, 70. JOeschamps, Daoust v., 85. Deseve, Perrault v., 50.. Deseve, Thurber v., 248. Desfbrges and Dufaux et al., 171, 202. Desharnais v. Amiot, 56. Desjardins v. La Banque du Petiple, 9, 97, 342. Desjardins, Bmnet v., 104, 239. Desjardins v. Dubois, 279. Desjardins, Tarr et al. v., 325. Deslongchamp et al. v. Payette, 175. Desmarteau et al., Masson et al. v., 332. Desparois, Exp., 72. Desrivieres, Rasco v., 292. Desrivieres v Richardson, 82, 182. Desrivieres, The Royal Institution v., 7, 82, 100, 182, 225, 237, 333. Dessaulles et al., Anderson et al. v., 160. Dessaulles, Duvernay and, 124. Dessein v. Ross, 117. Devlin, Exp., 43. Devlin v. Tumbelty, 14. Devoyau and Watson et al .,45, 242, 335. Dewar v. Orr and Fisher, 3. Dewitt and Burroughs, 256. Dickerson v. Fletcher, 315. Dickey, dimming v., 128. Dickey and Terriault, 330. Dickinson, Bertrand v.., 69. Dickinson v. Bourque, 133. Dickson, Bryson and, 42. Dickson, Chairmont et al. v., 129, 176. Diganard, Little and, 190, 31H. Dill v. The Quebec, 155,200. Dillon v. Chabot, 203. Dinning v. Bates, 214, (note 215.) Dinning v. Bell et al., 104. Dinning, Douglas and, 257. Dinning and Jeffery, 136. Dinning et al., Whitney v., 27. Dion v. Morris, 197. Dioune v. Methot, 181. Dionne v. Soucy, 141. Dixon, Berry v., 51. Doherty, Beg. v., 182. Doherty, de Repentigny v., 164. Dolmasse, Beaudoin v., 241. Donaghue, Exp., 79. Donaghue, Gugy and 78, 221,337. Donais, Uuot and, 110. Donald v. Beckett, 288. Donally v. Nagle and McDonald, 136. Donegani, Banque du Peuple v., 124, 209, 276. Donegani v. Choquette et al., 331. Donegani v. Donegani, 17, 2,4 Donegani et al., Lafleur v., 261. Donegani,, Lemoine v., 208. Donegani, Quesnel v., 111. Donegani and Quesnel, 23. XVIII TABLE OF CASES. Donnelly, Joseph v., 206. Donnelly, Lelievre v., 51. Donnelly, Talbot v., 49. Donovan^ Murphy v., 146. Dooley v. Wardley et al., 3. Dorion, Bedard v., 176. Dorion et al., Fostel et al. v., 52. Dorion and Laurent, 149. Dorion, Morland v., 318. Dorion et al., Rivet et al. 148, 295. Dorion et al., Robert et al. v., 100, (note 100.) Dorval v. L'Esperauce, 296. Dorwin v. Evans et al., 249. Dorwin, Hunter v., 89. Dorwin and Hutchins, 98. Dorwin v. Waldorf, 138. Dougall, Routh v., 84. Douglass and Dinning, 257. Douglas v. Dupr6, 256. Douglas, Hall v., 133. Douglas v. The Mayor, &c, of Mon- treal, 160. Douglas et al., Moss and, 129. Douglas et al., McKenzie et al. v., 233,< '276. Douglass v. Parent, 279. Douglas, Warren v., 136. Doutre, Boulanget v., 171, 278. Doutre and Elvidge, 11. Doutre v. Gosselin, 103. Doutre v. Green, 40, 70. Doutre v. Montreal and Bytown Rail- way Co., 224. Doutre v. McGinnis, 51. Doutney v. Mullin, 103. Dow v. Browne, 229, 250. Dow et al., Sterling v., 288. Downes, Cooper v., 139. Doyle, Exp., 62. Doyle et al. and McLean, 209. Doyle et al.. Trust and Loan Co. v., 133, 222. Drapeau et al. v. Campeau, 181. Drapeau et al. v. Gosselin, 181. Draper, Macfarlane et al. v., 124. Draycott, Fisher v., and Scott, 35, 39. Dresser et al., Sternberg et al. v., 311. Drolet, Berlinguet and, 33. Drolet v. The Mayor, & Elwin v. Royston, 236. Emerick, Hislop v., 289, 318. Emerick v. Paterson, 159. Enness, Henderson v., 44, 53, 269. Ensor and Orkney, 148. Equitable, The, and Quinn, 159. Equitable, The, Racine v., 154. Ermatinger v. Gugy, 6. Esty, Judd and, 106, 124, 207. Evans and Boomer, 87. Evans et al:, Dorwin v., 249. Evans and Nicholls et al., 133. Evans, The People's Bdg. So. v., 211. Evans, Sims et al. v., 142. Evans v. Smith, 211. Fabrique de St. Ignace v. Beaubien et al., 109. Fabrique de Chaleauguay, Reid and, 217. Fabrique de La Pointe aux Trembles, Queen and, 184. Fabrique de Quebec, Desbarats v., 181. Fabrique de Quebec, Richard and, 217. Fabrique de St. Athanase,' Vihcelette v., 184. Fabrique.de St. Edouard, Comte v., 127. Fabrique de St. Ignace v. Beaubien etal.,217. Fabrique de St. Jean, Hebertv., 84. Fabrique de St. Pascal, Larue et al. v., 109, 217. Fabrique de Vaudreuil v. Pagnuelo, 338. Factor, The, 326. Fafard v. Belanger, 245. Fahey et al. and Jackson et al., Ill, 113, 161. Failes and The Mayor, &c, of Quebec, 332. Fairbairn, Colman et al. v., 129. Fairchild, Barbour et al. v., 33, 34. Fairchilds et al., Tetu et al. v. 280. Falardeau v. Couture, 94. Falardeau, Tessier v., 148. Falkner et al., Molson's Bank v., 30, 231. Falkner, Vanier v., 115. Fallon, Syndics de Lachine v., 268. Faneuf, Regina v., 31. Faribault and St. Louis et al., 263. Farnan v. Joyal, 215. (Note 215/) Farquhary Plamondon v., 218. 'Farrell, Herbert and, 240. Faucher et al./ Deehene v., 293. TABLE OF CASES. Fauteux and Boston, 150. Fawcett, The Great Western Railway- Co. v., 94. Fawcett et al. and Thompson et al., 168, 196, 236, 282. Februyer v. Poirier, 276. Fenn v. Bowker, 129. Fennell, Herbert and, 196. Ferguson v. Gilmour, 85, 119,242, 300, 321. Fergusson, Gugy and, 22, 84,. 227, 244. Ferguson^ Mills and al. v., 276, 280. Ferguson v. Patton, 168. Ferguson et al. v. Scott, 182. Ferguson, Sinclair v., 96, 276, 280. Fergusson, Robertson et al. v., 279. Ferns, Walker et al. and, 103, 233. Ferrie and The Wardens of the House of Industry, 83, 245. Ferrie et al., Cunningham et al. v., 223. Ferrie and Thompson, 221. Ferrier, Porter v., 224. Field, Russell et al. v., 180, 228. Filiatrault v. Archambault, 104. Filialrault v. The Grand Trunk Rail- way Company, 96, 239. Filiau, Exp., 61, 80. Filion et al. v. de Beaujeu, 3, 107, 108, 294, 308. Fillion et al. v. Binette, 1 14. Filmer et al. and Bell, 304. Filteau, Jackson v., 344. Finley et al., and Carden et al., 102, 114, 125, 342. Fisher v. Draycott and Scott, 35, 39. Fisher, Exp., 135. Fisher et al. v. Fisher et al., 334. Fisher v. Jameson, 108. Fisher, Orr and, 262. Fisher v. Proveneher et al., 19. Fisher, Russell and, 13, 180, 212. Fisher, Smith v., 262. Fisher v. Vachon, 176. Fitzbaek et al., Brochu v., 312. Fitzbaek et al. Brother v., 6. Fitzbaek et al., v. Ohalifoux, 273. Fitesgerald, Meath et al. v., 133. Fitzpatrick v. Cusack and The Grand Trunk Railway, 59. Fitzsani'mons s Byrne et al. v., 269, 301, 337. Fitzsiiamofls, Hayden v., 95. Fleck v. Staraes et aL» 121. Fleming et al., Adams v., 221. Fleming v. Fleming, 276. Fleming v. Seminary of Montreal, 261. Fletcher, Dickerson v., 315. Fletcher v. Gatignan, 194. Fletcher, Lacombe vs., 98, 316i Flora, The, 285, 338. Florence, They 187,285. Fogarty v. Morrow et al., 168. Foisy v. Demers, 7. Foley, Bates v., 219. Foley and Elliott, 92. Foley, Renkin and„71. Fontaine, Lamothe et al. v., 181, 3H. Fontaine, Larive v., 145. Fontaine, LoTell v., 208, 311. Foote et al., Secretan v., 169. Footner v. Heath, 9, 325. Footner v. Joseph, 29. Foran et al., Exp., 268. Forbes et al. v. Atkinson, 227. Forbes v. Legault, 142. Ford v. Butler, 13, 120. Forest, Exp., 48. Forneret, Boucher v., 172. Forstersens, Olsen v., 234. Forsyth v. The Canada Baptist Mis- sionary So., 311. Forsyth et al., McKenzie et al. v., 309. Forsyth et al., Morgan, v., 299. Forsyth v. Morin et al., 103,270. Forsyth et al. v. Williams et al., 173. Fortier, Ledue v., 292. Fortier v. Mercier, 216. Fortier, Rheaume and, 23. Fortin, St. Anbin v., 203. - Fortius Garneau v., 86, 142. . Fosbroke,.Braneaii v., 122. Foster et al. v. Dorion et al., 52. Foster et al, v. Chamberlain et al, 111. Fournier, Darvault v., 3. Fournier et al., Mercille v., 189. Fournier v. QMva, 295. Fournier, Ouellet v., 281. Fournier v. Quebec Fire Ass. Co., 86, 216. Fenrnier, Patton vs. 290. Fournier and Russell, 124, 133, 189, 205, 206, 209. Fourquin et al., Grenier et al, v., 165. Fowler and Meikleham, 135. Fowler v. Stirling, 44. Fradet v. Labrecque, 46. Francisco, Elwes v., 54, 166. Franklin Co. Bank, Larocq ne et al. and, 83, 251. Fraser v. Bradford, 115. Fraser et al., v. Ruteau-i 264, (noteSfl*^ Fraser et al.y Hamilton et al. V.,13>2SK TABLE OF CASES. xxi Fraser, Jackson v., 113, 281. Fraser, Kelly v., 119, 232. Fraser v. Loiselle, 45, 122. Fraser, McDouall v., 98, 281. Fraser et al. v. Poulin, 144. Fraser et al., Roche v., 330. Fraser, Rochon v., 336. Frechette v. Corbet, 99. Frechette v. Frechette, 306. Frechette v. Gosselin, 179. Frechette v. St. Laurent, 137. Freer, Bellingham et al. and, 306. Freer, Pelletier et al. v., 54. Freligh v. Seymour, 124, 173, 334. Freeman, Canada Ass. Co. v., 259. Friends, The, 11,30, 37, 95, 98, 138, 166,214,234,323. Frothingham et al. v. The Brockville and Ottawa Railway, Co., 1, 293, Frothingham, Deneau v., 334. Frothingham v. Gilbert, 222. Frothingham et al., St. Lawrence and Ottawa Railroad Co. v., 220, 225. Fry and The Richelieu Co., 117, 331. Fuchs v. Talbot, 189. Fuller and Jones, 312. Futvoye et al., Venner v., 249. Fyson, Crawford v., 55. Fyson, Warner v., 55. Fyson, Merritt v., 55. Kfm ••••••• V. i_J . •••••• «j Id* Gadbois v. Bonnier, 14. Gagne v. Bonneau, 238. Gagnier v. Crevier et al., 220, 225. Gagnon and Hudon, 9, 43. Gagnon, Joly v., 194, 267. Gagnon, Lavoie v., 300, 301. Gagnon, Roy and, 173. Gagnon v. Rousseau, 273, 276. Gagnon, Supervisor of Cullers v., 88. Gagnon v. Woolley, 289. Gaherty v. Torrance et al., 57, 92. Galarnean, Berthelet v., 104, 293. Galarneau et al. v. Robitaille, 231. Gale v. Allen, 54. Gale et al. v. Brown, 49. Gale, Browning v., 195. Gale v. Griffin, 140. Gallagher v. AUsopp, 315. Gamble, Exp., 260. Gamble, McDonald v., 223. Gamsby and Chapman, 252. Garceau, Lamothe and, 41, 207, 268, 294. Gardner v. McDonald, 125. Gareau, Mc Martin v., 173. Gariepy, Bourassa and, 287. Garish v. Duval, 46, 177. Garneau v. Fortin, 86, 142. Garneau v. Garneau, 16. Garon and Casgrain, 265. Garon, Langevin and, 133. Garrett, Legett and, 134. Garth, Woodbury and, 113, 115, 203. Gascon, Boudreau v., 230. Gaspard, Paquet v., 17, 229. Gates, Benninger et al. v., 128. Gates, Wood and, 274. Gatignan, Fletcher v., 194. Gaudreau, Belair v., 139. Gaudry v. Marcotte et al., 286. Gaulin et ux. v. Pichette et al., 245, 282. Gault et al. v. C6t6, 229. Gauthier v. Blaiklock, 86. Gauthier, De Blenry v., 216. Gauthier v. Boudreau et al., 318. Gauthier v. Dagenais, 107, 160; 337. Gauthier et al. v. Darche,4. Gauthier, Dubois v., 200. Gauthier, Exp., 60. Gauthier, Giroux v., 149." Gauthier v. Glodue, 4, 7. Gauthier, Greenshields et al. v., 230. Gauthier v. Lemieux, 85. Gauthier and Marchand, 232. Gauthier v. Meneclier, 243, 263. Guuvin v. Caron, 89. Gauvin, Vinet v., 240. Gauvreau et al., Lambert and, 335. Gauvreau et al., Langlois v., 136. Geer, Clement v., 102. Gendron v. Lemieux, 54. General Hewitt, The, 326. Genereux, Anderson et al. and, 42. Genereux v. Leroux, 165. Genier v. Charlebois, 230. Geoffrion, Johnston et al. v., 118, 249. Geoffroy, Trigge et al. v., 312. Georgen v. McCarthy, 43. Germain, Dubord v., 2X4. Germain v. Montreal and New York Railroad Co., 200, 255. Germain and Vezina, 19. Gerrard et al., Mackay et al. v., 215. Gerrard, Montgomery v., 213. Gerrard, McGillivray v., 334. Gerrard, Warner v., 89. Giard, Duchesnay v., 125. Gibb et al. and Beacon Fire and Lifb Assurance Co., 25, 157. XXII TABLE OF CASES. Gibb and Sheppard et ux., 14-3. | Gibb et al., Tilstone et al.' and. 200, 201. Gibbon, Baldwin v.,, 64, 299. Gibeault, Exp., 61. Gibson v. Wear, 6, 219. Gigonv.'Hotte, 226, Gigueres, Desaliier and, 175. Gilbert, et al., Constable et al. v., 276, 311. Gilbert, Frothingham v., 222. Gilchen and Eaton, 259. Gildersleeve, Kerr v., 261. Gillespie et al. v. Gray, 233. Gillespie et al., Huchinson v., 96, 126. Gillespie v. Perceval, 90. Gillespie et al. v. Sprang et al., 38, 195, 263. Gillin and Cutler, 24-7. Gilloran, Aylwin et al. and, 277. Gilmor, Gugy v., 309. Gilmour et al. v. Dyde et al., 159. Gilmour, Ferguson v., 85, 119, 242, 244, 321. Gilmour, Minor v., 267. Gilmour et al., Torrance et al. v., 55. Gilmour, Whishaw v., 168, 241. , Giltner et vir. v. Gouin, 191. Gingras, Auger v., 75. Gingras, Banque du Peuple v., 309. Gingras, Rex. v., 60. Gingras, Routier and, 38, 39, 268. Gingras, Ryland v., 178. Girard v. Blais, 143. Girard et al., David v., 9. Girard, Lafleur v., 106, 14+. Girard, Quintin v., (note 100,) 174, 335. Girouard v. Beaudry, 110. Girouard v. Lachapelle et vir., 246. Giroux v. Binet, 1 98. Giroux v. Gauthier, 149. Glackemeyer v. Day, 218. Glackemeyer v. The Mayor, &c, of Quebec, 173, 256. Glackemeyer et aland Penuult,241. Glackemeyer, Tetu et al. and, 148. Glass v. Joseph et al., 71. Glen et al., Bank of Montreal and, 41. Glencairn, The-T-Roslin Castle, The, 32, 67, 324. Globenski, Leclair v., 163. Globensky and Laviolette, 109. Globensky, Leprohon v., 131. Globensky et ux. and Lukin, 131. Globensky, Paquet and, 219. Glodue, Gauthier v., 4, 7. Glouteney v. Liissier et al., 238. Godin v. McConnell, 273. Goldsmid et al., Casey and, 22, 157, Goodman, Exp., 61. Gordon v. Henry, 99. Gordon, Hogail v., 2, 53j 275. Gordon et al. v. Pollock, 44. Gore, Benjamin v., Ill, 161. Gore et al. v. Gugy, 216. ' Gorman, Murray v., 260. Gormley et al., Coterell v., 75. Gorrie, Giltner et vir. v., 191. Gorrie v. Herbert and Herbert, 124. Gorrie v. Mayor, &c, of Montreal, 32 1 ,. 337. Gosselin v. Chapman, 2). Gosselin, .Doutre v., 103. Gosselin, Drapeau et al. v., 181. Gosselin, Frephette v., 179. Gosselin and The Grand Trunk Rail- way Company, 147, 281. Goudie v. Langlois, 3 14. Gould et al. v. Binmore et al., 46. Gould, Exp.; 62, 259. Gould v. Mayor, &c., of Montreal,3I,. 172. Gould and Sweet, 22, 23. Gourt, Dumont v., 53.. Grainger et al. and Parke, 125. Grand Trunk R'way Co. Boucherville v., 95, 238. Grand Trunk R'way Co. Cadwallader v., 58. Grand Trunk R'way Co. Commissaires d'Ecoled'Actonv., 32. Grand Trunk and Corporation of Levis, 197. Grand Trunk, The, Eastern Townships Bank v., 207. Grand Trunk R'way Co. Exp., 255. Grand Trunk R'way Co. Filiatrault v,, 96 239. Grand Trunk and Gosselin, 147, 281. Grand Trunk R'way, Huston v., 57.t ■ Grand Trunk, Kierzkowski, 182, 183. Grand Trunk R'way Co. Legendre t. The, 255, 292. i Grand Trunk R'way Co. MarshalLv., 95, 238. Grand Trunk R'way Co. Morrison v. 255. Grand Trunk R'way, Ravary v., 95,255." Grand Trunk R'way Co. Webster v., 93, 191, 220, 337. Grange, The Harbour Commissioner* and, 92, 116, 192, btaf) TABLE OF CASES. XXIII Grant v. The JEtna. Ins. Co. 115, 159, 331. Grant, Barbeau v., 238, 239. Grant and Brown, 174. Grant v. Plapte, 201, 333, Grant and Principal Officers of Artillery, 181. Gravel, Adams v., 307. Gravel v. Bruneau, 104. Gravel, Lavoie v., 196. Gravelle v, Beaudoin, 241. Gravely, Russell et al. and, 20. Gray, Gillespie et al. v., 233. Great Western Railway Co. v, Fawcett and Braid, 94. Greaves v. Macfarlane, 98. Green, Doutre v., 40. Green v. Hatfield, 50. Green, Pozer v., 246. G-reenshields et al. v. Gauthier, 230.. > Greenshields v. Plamondon, 36, 342. Grtgoire v. Laferri^re, 144. Gregoire, Lavoie v., 202, 238. ■ ' ' ' Gregory and Henshaw, 127. Grenier v. Chaumont, 145,261. Grenier et al., v. Fotirquin et al., 165. Grenier v^ Leprohon,* 93. Grenier, McDonald, v., 206. •/; Grenier, McDonnell v., 205, .206., Grenier et vir. v. The Monarch Life Association Co. 120 v , 158. Grenier, Parent v., 299. Grenier et al. St- Denis v., 336. Grenier, Vandal v. 113. Grey v. Todd et al., 9, 97, 282. Griffin, Gale v., 140. I Griffin, McGoey-v., 229. Grinton v. The Montreal Ocean Steam- ' Iship Company, 225. Groom and Voucher, 60. Groulx, DeBeaujeu. and, 30L Groulx, Verdon v., 6, 106, 312. Guay et al. and Blanchet et al., 199. Guay, Exp., 60. Guay, Guenard v., 312. Guay v. Hunters, 74. Guay v. Lefebvre, 218. Guenard v. Guay, 312. Guenette, Beaftdry v. and The Cor- poration of Montreal, 126. Guenette v. Blanchette, 132. Gueyremont, Dufresne v., 43. Guevremout v. Lamerej ills, et al., 225. Guevremont, Morasse, v.,. 211. Gwlfoyle.v* Tate etal., 123. Guillemot, Dumaine v., 49. Guillet dit Tourangean and Renaud, 245, 336. Guilmettre, Ramsay v., 182. Guingue, D'amour et al, and> 127. Gugy, Banque de Peuple v., 101, 125,. 293. Gugy, Bertrandv., 163. Gugy, Brown, v., 83, 111, 267,337, 341. Gugy and Chouinard; 181, 205. Gugy v. Donaghue, 78, 221, 337. Gugy and Duchesnay, 74. Gugy, Ermatinger v., 6. Gugy, Exp., 87. Gugy and Fergusson, 22, 84, 227. Gugy v. Gilmor.,309. Gugy, Perry and, 102. Gugy, Gore, et al. v. 216. • Gugy and Gugy (liote 20,) 26. Gugy, Kerr v., 84, 315. Gugy and Larkiri, 248. Gugy and Maguire, 244, 301. Gugy, Eenaud and, 112, 164, 259. Gugy, Stevenson v., (note 150.) Guy et al. Berthelet and, 32,34, 123. Guy v. Clarkson and McLean; 132. Guyon, Shuter v., 231. Guyon dit Lemoine v. Lionais, 129, 231. Gwilt* Sweetapple v., 72, 291. Hagan and Wright, 35. Haid6e,The, 12, 13, 170, 179,323,328. Hainault, Lynch and, 108, 245, 283. Halcro and Delesderniers, 219, 228. Hall and Dubois, 98. Halferty, Munn v., 277. Hall'lind Beandet, 74. Hall v. Bradbury et al., 221. Hall v. Douglas, 133. Hall, The Harbour Commissioners v., 7. Hall et al. TMcBlairi v., 1 1. Hall etal. Poston et al. v., 165. Hall and Thompsbn, 178, Halpin, Ryan and, 2, 152, 204. Hamel, Audet v.,262. Hamel, Chasseur v., 301. Hamel et al. v. C6t6, 51, 55. Hamel, Jobin v., 132. Hamel v. Joseph, 1 10. Hamel, Stewart v., 218. Hamelin et al. Lenoir v., 334. Hamilton et al. v. Fraser et al., 12, 253. * Sometimes written Guilt. xxrv TABLE OF CASES. Hamilton v. Plenderleath , 335. Hamilton et al., Whitefield et al. v., 184. Hanna v. Hanna, 333. Handsley v. Morgan, 212. Handyside et al. v. Courtney et al., 249. Harbour Commissioners, Carrignan v. The, 61,81. Harbour Commissioners, The ' City Bank vs. The, 15. Harbour Commissioners, Exp., and Fisher, 25,6. Harbour Commissioners and Grange, 92, 116, 192. Harbour Commissioners, The, v. Hall, 7. Harbour Commissioners, The, Rudolph v., 47. Hardy et al. Trothier et al., 63. Ilarnois and Rousse, 90. Harper v. Bilodeau, 173. Harington v. McCaul, 234. Harris, Barney v., 53, 225. Harris et al., v. Edmonstone et al., 57. Harris, Feck and, 1 99. Harrower, The, Perceval v., 259. Hart, Burns v., 39. Hart, David and, 42. Hart, Defoy v., 218. Hart, Exp., 257. Hart v. Hart, 102. Hart et al., Hobbs et al. v., 250. Hart, Jones v., 59, 246. Hart, Mallory and, 117,236,312. Hart et al., v. Mulson et al., 18. Ha»t, McCarthy and, 37, 305. Hart v. McNeil, 313, 338. Hart, Paterson v., 53, 232. Hart et al., and Phillipps, 152, 229. Hart, Saucisse et al. v., 95. Hart v. Vallieres, 78, 216. Hart, Vandenveiden and, 141. Hartigan, Brown et al. v., 35, 118. Hartshorne et al., v. Scott et al., 223. Harvey v. Aylmer, 137. Harvey, Exp., 31, 172. Harvey, Maguire v., 273. Harwood v. Shaw, 313. Harwood et ux , and Whitlock et al., 265. Haskill, Spalding v., 10. Hasset v. Mulcahey, 51, 52. Hastie v. Morland, 191, 222,280. Hartfield, Green v., 50. Hartfield, McCulloch et al. and, 85. Haws, Bourassa v., 272. Hayden v. Fitzimmons, 95. Hays, David v., 144, 238, 247. Hayes v. David, 6. Hayes v. Kelly, 273. Headley, Charlebois and, 18. Healey v. LabeMe, 175. Heath, Footner v., 9, 325. Hearle and Date, 114, 129. Hearn and Lampson, 21, 23. Hearn, Wood and, 199. Hebert, Compagna v., 180. Hebert, Dubois v., 214. Hebert and Fabrique de St. Jean, 84. Hebert, Orr v., 314. Helliwell v. Mullin, 221. Hempstead and Drummond et al.,3Sl. Henderson, Bignell v., 107. Henderson, Bradford v., 230. Henderson v. Caverhill, 59. Henderson v. Enness, 44, 53. 269. Henderson, Pinsonneault v., 31. Henderson, Warren v., 59. Heney and Holland, 24. Henry, Gordon v., 99. Henry v. Mitchell, 226. Henry, Ruel v., 99. Henry, Wurtele et al. v., 33. Henshaw v. Dyde, 204. Hensha 194, 267. Joly, Ritchie and, 177. Joly, Rodier v., 278. Jones and Anderson, 277. Jones, Brush v., 201. Jones et al., Campbell et al. v., 59. Jones, Fuller and, 3 12. Jones, Hart v., 59, 246. Jones v. Laing, 132, 140. Jones v. Lemef nrier et al., 203, 277. Jones v. McNally, 225. Jones, Quebec Building Society v., 11, 87. Jones, Robertson v., 262. Jones, Roe v., 118. Jones V. Saumur, 1, 275. Jones v. Whitty, 251. Jones et al. v. Young, 90. Jordan and Ladriere, 132, 190. Jordeson v. Mo Adams, 74, 93, 96. Jorgensenj Moisan and, 266. Joseph v. Brewster, 97. Joseph, The British American andy 159. Joseph v. Castonguay, 3, 343. Joseph v. Cay and- Cay, 204, 209. Joseph and Cuvillier, 39.. Joseph v. Delisle et al., 249. Joseph, Delvecchio v., 4. Joseph v. Donnelly, 206. Joseph, Exp., 190. Joseph, Footner v., 29. Joseph et al., Glass v., 71. Joseph, Hamel; v., 1 10. Joseph, Hunt v., 171. •,. Joseph et al. v. Hutton, 250. Joseph, McKenzie v., 39. • Joseph v. Moffatt and Castongue (note 174.) Joseph v. Morrow et al., 283, 320, 337. Joseph v. Ostell, 28, 29, (note 38.) Josepha, The, 235. Jourdain v. Miville, 46. Joutras v. Dunlop, 49, 54. Joyal, Farran v., 215, (note 215.) Judah, Aylwin v., 6, 84, 341. Judah, Exp., 257. Judah and Rolland and Judah, 3, 257. Judah v. Lavoie, 31. Judah, McCarthy and, 321. Judah et al., Ramsay v., 72. Judah and Esty, 106^ 124, 207. Julien, Trust and Loan Co. v., 206. Juneau, Beliveau v., 254. Karrigan, Martineau v., 152, 153. Katham and Dunn, 244. Kaunty et al., McKillip et al. v., Ill, 263. Kay and Simard, 104. Kay, Warren v., 165. Kearney v. Kinch et al., 246. Kearney v. Mcllale, 2, 275. Keeler, Wheland v., 264. Keith v. Bigelow, 73. Kellam, Osgood and, 219. Kelly v. Fraser, 119,232. Kelly, Hayes v., 273. Kelly v. Horan, 54. Kelly, Jervis v., 85. Kelly et al., McClure v., 279. Kelly, Parsons et al. v., 201. Kelly v. Sharpnell, 176. Kelton v. Manson, 104. TABLE OF CASES. XXVIf Kemp v. Kemp, 56, 258. Kennedy v. Aylmer Steam Mill Co., 115. Kennedy v. Bedard, 291. Kennedy, Supple and, 119, 337. Kennedy et al. and Smith, 128. Kerfut et. al., Montreal and City and District Bdg. So. v., 262. Kerr v. Gildersleeve, 26 1 . Kerns et al., Shelton v., 136. Kerr v. Gugy; 84, 315. Kerr and Livingston, 281. Kerr, Wilson v., 162. v Kerrigan, Latham v., 141. Kerry v. Pelly, 85. Kerry et ab, Piatt v., 172. Kershaw v. Delisle et al., 125, Keys v. Quebec Fire Assurance Com- pany, 47. Kierzkowski and Grand Trunk Bail- way Co., 182, 183. Kierzkowski v. Lesperance, 123. Kierzkowski, Morison v., 229. Kilborn et al., Boswell and, 25, 92, 281, 289. Kinch et al., Kearney v., 246. King and Breakey,.36. Kingan v. The Mayor r&c, of Mont- real, 83. Kingsbury,- Mc Adam v., 4, 7. Kingsley, Delesderniers v., 145. Kinnear et al., Starnes et al. v., 201. Kinnay and Perkins, 269, 292. Kirk, The Bank of Upper Canada v., 56. Kirkpatrick, Ingham v., 35. Klein, Patess et al. v., 328. Knapp et al. and Bank of Montreal, 44. Knapp-*et al., Murphy v., 1, 5. Knowlton et al.; Bell et al. v., 224, 288. Knowlton et al. v. Clarke et al., 24. Xj •«»■•••■ G. .»•••.. vs., 31 . Labadie and Truteaiv 140. Labbe v. Mackenzie, 44*. Labelle, Healey v., 175. Labelle, -Laurent et al. v., 308. Labelle, Malo v., 54. Labelle, Le Seminaire de Quebec, v., 181. Labelle, Senecal and, 124, 291. Laberge v. De Lorimier, 96. Labreque v. Boucher, 142. Labrecque, Fradet v., 46. Lachapelle, Girouard v., 246. Lacasse v. Lacasse et al., 295. Lacornbe and Fletcher, 98, 316. Lacoste v. Chauvin, 241. Lacroix and Lambert, 10. Lacroix v. Perrault, 127. Lacroix, Poirier v., 106, 160, 203. * Lacroix v. Prieur, 1 75. Ladriere, Jordan and, 132. Lady Aylmer, The, 167. Lady Seaton, The, 187, 214, 328. Lafantaisie, Jasmin v., 330. Laferriere, Gregoire v., 144. Laflamme, Beaudry v., 14, 232, 245. Laflamme, Les Syndics de Lachine v., 268. Lafleur v. Donegani et al.,261. Lafleur v. Girard, 106, 144. Lafond etal. y. Chagnon, 263. Lafond, Derome v., 86. Lafontaine v. Suzor, 319. Laframboise et al., Mercure and, 56. Lafrenaye.La Societe de Construction Canadienne v., 102. Lagrange,' Desbarats v., 233. Lahaye et al., Exp., 47. Lahayes, Exp., 61. Laidlaw, Egert et al. v., 53. Laing et al. v. Bresler, 272, 273. Laing, Jones v., 132, 140. Lajoie Pelletier v., 41. Lalonde v. Laionde, 4, 85. Lalonde and Martin, 2, 106. Lalonde v. Bowley, 85. Lalouette dit Lebeau et al. and Delisle et al., 213. Lamarche v. Johnston, 126. Lamarche v. Lebrocq, 50. Lambe, Bell v., 336. Lambe, Mann etal. v., 38, 111,161, 168, 222, 289. Lambert v. Berlrand, 46". Lambert and Gauvreau et al., 335. Lambert, Lacroix and, 10. Lambert v. Lefrangois, 171. Lamere,'fils et al.,Guevremont v., 225. Lamere, Paradis v., 195. Lamirande et al. v. Dupuis, 3. Lamiraude, Marchahd and, 291. Lamontagne, La Society de Construc- tion^Canadienne v., 102, 280. Lamontagne, Tavernier v., 199. Lamothe and Chevalier, 31, 131, 220. Lamothe et al., Dubois and, 171. Lamothe et al. and Fontaine, 181,314. Lamothe and Garceau, 41, 207, 268, 294. Lamothe v. Hutchins, 144. XX VI II TABLE OF CASES. Lamothe et al., Lenoir and, 87. Lamothe and Ross, 144. Lamothe et al. v. Talon, 105, 1*1,208. Lampson v. Barret, 275. Lampson, Blais v., 222, 294. Lampson, Hearn and, 21, 23. Lampson, Lee v., 122. Lampson v. Nesbitt, 305. Lampson, Noad and, 203, 279. Lampson v. Smith, 49, 51, 191. Lampson, Symes and, 299. Lampson v. Taylor et al., 240, 242. Lampson and Wurtelle, 21, 24. Lanaudiere et al. v. Jobin, 182. de Lanaudiere, Trudeau v., 162, 202. Landry, Exp., 62. Lane et al. v. Deloge, 150. Lane, Exp., 43. Lane et. al. v. Ross, 72. Langellier et al., Exp., Boucher et al. and, 63. Langevin and Garon, 133. Langevin, Lesperance v., 122, 207. Langlands v. Stansfleld, 260. Langley v. Chamberlain, 52. Langley, Stuart v., 236. Langlois, Bank of Montreal v., 247. Langlois, Bernier and, 326. Langlois v. Corporation of St. Roch et al., 197,266. Langlois, Exp., 253. Langlois v. Gauvreau et al., 136. Langlois, Goudie v., 314. Langlois et al. v. Johnston, 180. Langlois v. Martel, 291. Langlois, Poulin v., 200. Langlois v. Trudel, 290. Langlois et al. v. Verret, 62. Langlois v. Walton, 252. Languedoc and Laviolette, 72, 152, 188. Lanouette et al. and Jackson, 45. Lantier and D'Aonst, 128. Lapensee, Anderson et al. v., 123. Lapensee, Palmer v., 123. Laplante, Lavallee v., 105. Laporte and Principal Office of H. M, Ordnance, 242. Lapre, Moge v., 145, 164. Laprise v. Armstrong, 316. Larche, Vannier et ux. v., 92. Lareau, Rolland and, 181. Laricheliere, Peltier v., 174. Lariviere v Arsenault, 174. Lariviere, Rolland v., 103. Larive v. Fontaine, 145. Larkin, Gugy and, 248. Laroche v. Holt, et al., 37. Larochelle v. Piche and Piche, 216. Larocque et al. v. Andres et al., 24L 249. Larocque v. Clarke, 52. Larocque v. Dunitmchel, 59. Larocque et al. and Franklin Co. Bank, 83,251. Larocque and Michon, 90, 188. Larose, Jameson v., 250. L'Artigue, Nau and, 75, 90. Larue et al., Cannon v., 180. Larue v. Crawford, 72. Larue v. Dubord, 290. Larue et al. v. La Fabrique de St. Pas- cal, 109,217. Larue, Lemelin and, 38, 39, 269. Larue, Panet v., 142. Latham v. Kerrigan, 141. Laterriere, Desbarats v., 105. Laterriere and Houde, 299. Latouche and Rollman, 199. Latouche, Vallee and, 84. Latour et al., Boucher and, 96. Latour et al. v.' Masson, 224. Latraverse, Moge and, 319. Laurent, A aid and, 278, 341. Laurent, Dorion and, 149. Laurent et al. v. Labelie, 308. Laurent v. Stevenson, 240. Laurie, Brown v., 46. Laurier v. Corporation du Petit Sitti- naire de Ste. Therese, 84. Laurier, McCarthy v., 300. Laurin vs. Pollock et al., 116. Lauson et al. v. Belanger, 142. Lauzon v. Connoissant et al., 18. Lauzon v. Stuart, 101, 112. Lavallee et al. v. Demontigny, 114. Lavallee v. Laplante and Laplante, 105. Lavallee, Trigge et al. v., 112, 313. Lavender, Boudreau v., 221. Lavergne, Pouliot v., 145. Laviolette, Globensky and, 109. Laviolette, Languedoc et ux. v., 72, 152, 188. Laviolette and Martin, 190, 283. Laviolette et al., Regina v., 38. Laviolette, Poutr6 v., 136. Lavoie et al., Cleroax et al v., 110. Lavoie v. Crevier., 35, 240. Lavoie, Exp., 266. Lavoie v. Gagnon, 300, 301. Lavoie v. Gravel, 196. TABLE OF CASES. xxrx- Lavoie v. Gregoire, 202, 238. Lavoie, Judah v., 31. Lasvoie v..Plante, 133. Lavoie and The Queen, 148. Lawlor, Exp-, 309. Lawrence and Stuart, 150. Lebel, Biroleau dit Lafleur v., 271. Lebel, Chapais v., 144. Leblanc and Delvechi, 129. Leblane and Pelerin, 62. Leblanc v. Rollin et ux., 247, 248. Leblanc v. Rousselle, 332. Leblanc et al., Thouin and, 210, 260. Leblanc, Toussaint et al. v., 18, 107. Lebrocq, Lamarehe v., 50. L. E. C, Dame M. L. E. F. v., 17. Leclair v. Crapser, 154, 156. Leclair et al., McFarlane et al. v., (note 20,) 26, 33. Leclake, Perkins v., 96. Leclair v. Globenski, 163. Leclerc v. Caron, 122. Leclerc v. Corporation of Pointe Claire, 197. Lecours, Exp. , 60, 63 . Lectiyer, Sanguinet et al. v., 84. Ledoux, Exp*, 47, 8 l r 259. Leduc and Busseau, 321. Leduc, Lynch v., 148. Leduc v. Fortier, 292. Leduc, Ricard v., 105. Leduc, Roehon v., 63. Leduc and Shaw et al., 284. Ledluc v. Tourigny, 276, 280. Leduc v. Tureot, 213. Lee, Beaulieu v., 228. Lee v. Burns, 1 97. Lee v. Lampson, 122. Lee, Martin and, 173, 334. Lee v. The Music Hall Association, 92. Lee v. Taylor, 274. Lee, Thibaudeau and, 287. Leeming v. Cochrane, 50. Leeming v. Robertson, 226. Leeming, Sinclair v., 39. Lefebvre et ux. v. Boyer, 174. Lefebvre v. Bemers, 3. Lefebvre, Guay v., 218. Lefebvre v. Meyers, 298. Lefebvre v. De Montigny, 13, 227. Lefebvre, Read and, 92. Lefebvre, Stoddart v., H8> 242, 344. Lefebvre v. Tultock, 52. Lefebvre v, Vallee, 40. Lefevre, Moriia v., 75. Lefort, Exp., 127. Lefrancois, Bilodeau v., 6, 222, 312. Lefrancois, Lambert v., 171. Lefurgy, Shaw v., 141. Legault, Forbes v., 142. Legault, Morin v., 245. Leggett and Garrett, 134. Legendre v. The Grand .Trunk R'way Co., 292. Leger v. Jackson et al., 69. Leigh, Michon v., 86. Lelievre et al. v. Baillargeon, 218. Lelievre et al., Boston et al. and, 23,. 341.. Lelievre v. Donnelly, 51. Lemelin and Larue, 38, 39, 269. Lemesurier, Janvrin v., 104. Lemesurier et al., Jones v., 203, 277. Lemesurier et al. v. Logan et al., 98. 281. Lemesurier v. McCaw, 40. Lemesurier and Municipal Council of Chester West, 197. Lemieux, Casavant and, 331. Lemieux, C6te and Cdte, 41. 246, 252. Lemieux, Couillard v., 304, 337. Lemieux, Delery and, 219. Lemieux, Gauthier v., 85. Lemieux, Gendron v., 54. Lemieux, Young v., 184. Lemoine et al., Boucher v., 205, 226. Lemoine v. Donegani, 208. Lenfesty and Metivier, 45. Lenfesty v. Renaud, 146. Leman v. St. Lawrence and Atlantic R'road Co., 138. Lenoir,- Exp., 256. Lenoir v. Hamelin et al., 334. Lenoir and Lamothe et al., 87. Leonard, Bell v., 27. LeonaM et al., Chef v., 96, 122. Leonard, Exp., 62, 80. Leonard, Moreau v., 128, 152. Leonard et al., Mountain v., 171. Leonidas, The, 32, 65, 66, 236, 270. Lepage, Beaueaire v., 292. Lepailleur v. Scott, 41. Leprohon, Corporation of Ste. Rose v., 48. Leprohon v. Globensky, 131. Leprohon, Grenier v., 93. Lepron v. The Mayor, Sec, of Mont- real, 112. Lerig6, Boston v., 75, 112, 227, 291. Lerige, Pattenaude and, 147. Leroux et al. v. Crevier et al., 106. XXX TABLE OF CASES, Leroux, Genereux v., 165. Leroux, Prevost v., 74. Lesage, Marsnlais v., 222. Lesieur, Comstock et al. v., 288. Leslie et al. and Molson's Bank, 271, 343. ' ' Leslie et al. v. Shaw et al., 83. Lesperance and Allard et al., 123, 153, 206. ' ' L'Esperance, Dorval v., 2.96. r Lesperance, Kierzkowski v., 123. Lesperance v. Langevin, 122, 207. Letourneau, Mire v., 243. Letourneau, Woodman v., 103, 270. Levar, Courville v., 216. Leverson et al. and Boston, 13, 86, V9, 136,205,233. Leverson et al. v. Cunningham, (note 135,) 204, 209, 272, 288, 296, 298. Levesque, Belanger v., 177. Levey and Lowndes, 99. Levey, Kussell and, 92. Levey and Sponza, 86, 127. Levey v. Turn bull et al., 98. Lewis v. O'Neill, 3..8. L'Hoist v. Butts, 49. Limoges v. Marsant, 149, 207. Limoges et vir., Paquette v., 189. Lina et al. v. Boyer, 242. Lindsay, Scott v., 253. Lionais, Guyon v., 129, 231. Lislois, Aubin v., 5. Lisotte v. Bulmer, 230. Little and Diganard, 190, ,318. Liverpool and London Fire and Life Ins. Co., Maguire v., 316. Livingston, Kerr and, 281. Lizotte, Hilaire and, 19. Lloyd, Boswell v., 30, 37, 178, 227, 231 295 343. Lloyd v. Clapham, 9, 97, 204, 282. Lloyd, McGrath v., 113, 207. Locke et al., Boudrot and, 272. Lockwoods, The, 187, 192. Logan v. Audy, 290. Logan et al., Lemesurier etal. v., 98, 281. Loiselle, Fraser v., 45, 122. Lomas, Turner v., 216. Lomer, Clark, v., 178. Lomer, Johnson et al. and, 178. London, The, 130, 210, 301, 307, 322. Lougmnir and Ross et al., 122.. ', Longpre, Conrcelle- v., 31. Longpre, Sanche and, 75. Loranger and Boudreau, 194, 313. ,©■* . fi Loranger v. Perrault, 171. Loranger, Rolland et al. v., 332. Lord John Russell, The, 64, 65, 138, 210,218,235,262. Lord v. Moir and Piatt, 136. Lorin et al., Panet et al. v., 139. de Lorinier, Laberge v., 96. Lotus, The, Clark, 64, 69. Loupret, La Corporation de Chamblyi v., 2, 6. Lovell- v. Campbell et al., 168, 169. Lovell v. Fontaine, 208, 311. Lovell v. Meikle,. 250. Low, Auclaire v., 126. Lowndes, Levey and, 99. Lucas, Petit v., 77. -Lukin, Globensky et ux. and, 131. Lurnley, Bottomley et al. v., 48. Luneau, Talbot v., 163, 306. Lussier/Corporation of St. Philippe and, 24. Lussier et al., Glouteney v., 238. Lussier v. McVeigh, 9. Lydia, The, 193. Lyman et al. v. Bouthillier, 91. Lyman et al. v. Chamard, 225. Lyman et al., Higginson v., 200, 201, 212, 321. . Lyman et al. and Peck, 200. Lyman et al. v. Perkins, 228. Lynch and Blanchet, 19. Lynch and Hainault, 108,245,283. Lynch v. Ledue, 148i Lynch v. McLennan et al., 310, 311. Lynch, Merritt v., 39, 201, 249. Lynch v. Papin, 63, 85, 127, 263. Lynch v, Poole, 73, 190. Mc Adam v. Kingsbury, 4, 7. Mc Adams, Jordeson v., 74, 93, 96. . Macalister, Nye v., 48. McAuley, Molson et.al. v., 297. McBean v. Debartzch, 73, 124. McBean v. Cullin, 216. McBlain v. Hall etal., 11. McBlain and Oliver, 210. McCallum, Ouimet v., 135. McCallum et al., Paterson et al. v., 14©.i McCallum v. Pozer, 294. McCann v. Benjamin, 300. McCarthy et al. v. Barthe, 250. McCarthy, Georgen v., 43. McGaSnthyiand Hart, 37, 305. McCarthy v. Judah, 321. McCarthy v. Laurier, 300. McCarthy v. Senegal,. 139. TABLE OF CASES. xxxt McCarty, Dunkerley v., 333. MoCaul, Harrington v., 234. McCaw, Lemesurier v., 40. McCleverty, Exp., O'Mara and, 3. McCloskey v. McGinnis, 35. McClure v. Kelly et al., 279. McClure v. Shepherd, 296. McConnell, Godin v., 273. McConnell, Shaw v., 3, 272. McCord v. Bellingham, 110. McCorkill, Bowker v., 112, 269, 338. McCorkill, Berriau and, 24. McCormick, McLean v., 226. McCormick, Robinson v., 269, 292. McCracken, Macfarlane v., 268. McCuaig et al., British Fire and Life Ass. Co. and, 224. McCulloch, Exp., 137. McCulloch et al. and Hatfield, 85,266. McCulloch v. McNevin, 28. McDonald et al., David v., 116, 342, 343. McDonald, Delisle v., 251. McDonald v. Dunn et al.. 293. McDonald, Elliot v., 156. McDonald et al. v. Gamble, 223. McDonald v. Grenier, 205, 206. McDonald, Gardner v., 125. McDonald v. McLean, 78, 190. McDonald et al. v. Miller et al., 6,231. McDonald and Montreal and New York R'way, 184. McDonald et al McDonald, Nye v., 117. McDonald and Quinn, 198. McDonald et al. v. Roy, 214, (note 215). McDonald v. Seymour, 104, 248, 293. McDonald, Symes v., 149. , McDonald, Tator et al. v., 213. McDonnell et al., Brigham v., 289. McDonnell et al. v. Collins, McDonnell v. Grenier, 205. McDonnell, New City Gas Co. v., 215. Macdouall, Butler v., 180. McDouall v. Fraser, 98, 281. Macdougall v. Allan et al., .58, 194. ] McDougall, Cooper v., 194. ' McDougall and Corporation of St. Ephremd'Upton, 31, 219. McDougall v. Dubord, 164. McDougall v. McDougall* 111. McDougal v. Morgan, 227. McDougall, Redpath et al. 'v., 306. ; Macdougall v. Torrance, 48, 52, 58, 59. : McEdward, Stewart v», 1 14. Morrill v., 289. McElwee v. Darling, 3. Macfarlane v. Aimbault, 33. Macfarlane v. Beliveau, 52, 57, 338. Macfarlane v. Bresler, 111. Macfarlane v. Delesderniers, 338. Macfarlane v. Delisle, 35, 309. Macfarlane v. Draper 124. Macfarlane, Greaves v., 98. McFarlane, Hynes and, 92. ' McFarlane v. Jameson, 269, 29? . McFarlane et al. and Leolaire et al., (note 20,) 26, 33. Macfarlane v. McCracken, 268. Macfarlane et al.ancl Mackenzie et al., 34. Macfarlane v. Patton, 203. Macfarlane v. Rodden et al., 75,. 319. Macfarlane and Roy et al., 310. Macfarlane v. Rutherford, 240. Macfarlane v. Thayer, 45, 46. Macfarlane and Whiteford, 310, 311. Macfarlane v. Worrall, 223. McGarvey v. Auger, 201'. McGarvey, Mettayer v., 1, 275. McGibbon v. St. Louis dit Lalampe, 292. McGill, Huot v., 38. 1 McGill, Murphy v., 218. jMcGillv. Wells, 224. , McGillis et al. v. Pearce et al., 23. ! McGillivray v. Gerrard, 334. McGillivray, Montreal Ass. Co. and, 26, 117, 155, 156, 160, 168,227,254. McGillivray, Plenderleath v., 5, 264. McGinn and Brawders, 20; 105. McGinn, Morris et al. v., 74. McGinnis v. Choquet, 318. McGinnis, Delisle' v., 240. McGinnis, Doutre v., 51. McGinnis and Hodge, 172. McGinnis v. McCloskey, 35. McGinnis, The Queen and, 195. McGoey v. Griffin, 229. McGrath, Clarke v., 3, 168, 228. McGrath v. Lloyd, 113, 207. McGreevy, Bosquet v., 213. McGuillan, Esinhartv., 202. McHale, Kearney v., 2, 275; McHugh et al., Pirrie v., 171, 226. Mclnenly, Brown v., 261. McKay v. Demers, 310. Mackay et al. v. Gerrard et al., 215. McKay v. Rutherford, 112, 113. McKay v. Simpson, 21. ' Mackay, Trust and Loan Co. and, 153, 294. XXXII TABLE OF CASES. McKenna v. TaVb, 28. McKenzie et al., Bailey v., 129. McKenzie et al. v. Douglas et al,, 233, 276. McKenzie, Exp., 184. McKenzie et al. v. Forsyth et al., 309. McKenzie v. Jobin, 76, 88. McKenzie v. Joseph, 39. McKenzie, Labbe v., 44. McKenzie et al., Macfarlane et al.and, 33. McKenzie v. Taylor, 244. McKenzie v. Tetu et al., 199. McKercher and Simpson, 27. Mackie and Cox, 54. McKillip et al. v. Kaunty et al., Ill, 263. McKinstry, Cuthbert v., 181. Mackintosh et al. v. Dease, 309. McLachlan, Alexander v., 49. McLaren et al. v. Hntcheson, 275. McLaughlin et al. v. Bradbury et al., 143. McLean, Boudria et vir. v., 189. McLean v. McCormick, 226. McLean, McDonald v., 78, 190. McLean v. Ross, 137. McLennan, Lynch v., 310, 311. McLennan et al., Thorn v., 19, 102. McLennan, Wood v., 89. McLeod v. Meek, 247. McLeod, Thompson v., 241. McMahon, Zeigler v., 278. McMartin v. Gareau, 173. McMaster, Copcutt et al. v., 90. McMaster and Walker et al., 99. McNally, Aylwin v., 279, (note 279.) McNally, Jones v., 225. Macnamara v. Meagher, 49, 112. McNamee v. Himes, 203. McNeil, Hart v., 313, 338. McNevin v. The Board of Arts, Sec, 71. McNevin, Holmes v., 94. McNevin, McCnlloch v., 28. McNevin, Tate et al. v., 215. McPherson et aL, Attorney General v., 45. Macpherson v. Bank of B. N. A., 1 14. Macpherson et al., Counter and, 76. McPherson v. Irwin, 79. McPherson v. Mayor, &c, of Quebec, 25-4. McPherson, Murray and, 333. McPherson, Routh et al.. 266,278. McPherson et al. v. St. Lawrence 1 In- land Marine Insurance Co., 293. McQueen, Brisson v., 49, 97, 166. McQuiggan,. Regina and, 43 . McTavish and Pyke et al., 189. McVeigh, Lussier v., 9. Madon, Bernesse v., 134. Magreen v. Aubert, 292. Magnire v. Bradley, 279. Maguire, Exp., 40, 137. Magnire, Davis v., 202. Maguire, Gugy and, 244, 301. Maguire v. Harvey, 273. Maguire v. Liverpool and London Fire and Life Insurance Co., 316. Maguire, Routh v., 291. Maguire and Scott, 13, 127, 212. Maguire, Seminary of Quebec v., 281. Mahoney et al. v. Tomkins, 289. Mailhot v. Bernier, 54. Maille and Chapleau, 19. Mailloux et al. Brown v., 115, 203. Mailloux, Exp., 145. Mailloux, Pinsonneault v., 276. Maitland v. Molson, 69. Maitland, Vankoughnet v., 311. Major et al. v. Baby, 209. Mallet and Desbarats, 209. Mallory and Hart, 117, 236, 312. Malo v. Adh6mar, 280,311. Malo v. Labelle, 54. Malo v. Nye, 115, 128, 161, 319. Malo v. O'Heir, 243. Malo, Perrault v., 226, 243. Malo, Ryan et al. and, 249, 251. Malo v. Wurtele, 161, 319. Malone and Tate, 119, 337. Malony, Irvin and, 337. Maloneyand Quinn, 129. Mandigo et al. v. Hoyle et al., 78. Mangan, Thibaudeau v., 194. Mangeau v. Turenne et al., 231. Mann, dimming et al. v., 281, 313. Mann et al. v. Lambe, 38, 111, 161, 168, 222, 289. Mann v. Wilson, 195. Manson, Keltoa v., 104. Marathon, The, 329. Marchand v. Cinq Mars, 274. Marchand, Gauthier v., 232. Marchand and Lamiraude, 291. Marchand v. Renaud, 77, 101. Marchildon v. Mooney, 86. Mercill, Benoit et al. v., 336. Marcotte et aL, Gaudry v., 286. Marcoux v. Bitner, 218. Margaret, The, 324. Marion and Perriu, 105^ TABLE OE CASES, xxxui Marois and Allaire^, 25. Marois v. Bernier, 87. Marsant, -Limoges v., 149, 207. Marshall v. The Grand Trunk B'way Co., 95, 238. Marsolais v. Lesage, 222. Marteau v. Tetreau, 332. Martel, Beanpre v., 122. Martel, Langlois v., 291. Martel,,. Thompson and, 208. Martha Sophia, The, 324. Martin et al., Blanchet v., 104, 239. Martin v. Cote, 314. Martin, Lalonde and, 2, 106. Martin, Laviolette and, 190, 283. Martin and Lee, 173, 334. Martin v. Martin, 10, 105, 229. Martin v. X. oreau, 263. Martin, Reg. v., 151. Martin, Tetirv., 41, 146. Martineau v. Cadoret, 210. Martineau v. Karrigan, 152, 153. Mary Bannatyne, The, 67, 68, 182,271. Mary Campbell, The, 65, 66, 69, 102, 116, 180,301,315. Mary and Dorothy, The, 12, 192, 211, 237 323. Mary Jane, The, 12, 134, 167, 179, 193, 235, 323. > Mass6, De Beaujeu v., 153. Masson et al., Castongue v., 288. Masson, Chapman v., 13, 116, 127,213. Masson et al. v. Choall, 209, 310. Masson et al. v. Corbeille, 320. Masson et al. v. Desmarteau et al., 332. Masson, Latour et al. v., 224. Masson vs. Mullins* 298. Masson et al., The Sun Mutual v., 186. Masson et al. v. Tasse et al., 233, 269. Massu v. Crebassa, 121, 122,208,250. Massue et al., Swinburne v., 59. Mathews, Moreau v.,, 18, 73. Mathews v.. Senecal, 236, 282. Mathewson. v. The Western, 156. Matte and Brown, 80. Maxham, Dansereau and, 165. Maxham et al., Quebec Bank v., 251, 321. Maxham. et al. v. Stafford, 38. Maxwell, Reg. v., 151. May, Berry and, 22, 49,. 50, 55. Mayer v. Thompson et al., 153.. Mayer et al. v. Scott,.289„ Mayor, &c, of Montreal, Anderson,, et al. and, 162. c Mayo?, &p., of Montreal, Beaudry and, 126. Mayor, &c, of Montreal, Belanger v., So, Mayor, &c., of Montreal, Beliveau v., 93. Mayort &c, of Montreal, Boulanget, v., 32. Mayor, &c, of Montreal, Carson v., 94. Mayor, &., of Montreal, Drolet v., 94. Mayor, &.,of Montreal, Douglas v., 160. Mayor, &c, of Montreal, Gorrie v., 32. 337. Mayor, &c, of Montreal, Gould v., 31, 172. Mayor, &c, of Montreal, Kingan and, 83. Mayor, Sec, of Montreal, Leprohon and, 112. Mayor, &c, of Montreal, Mercier v., 175. Mayor, &c, of Montreal, O'Connell v., 37. Mayor, &c, of Montreal, Pearce v., 175. Mayor, &c, of Montreal, Pigeon v., 95, 238. Mayor, &c, of Montreal, Voyer v., 83. Mayor, &c, of Montreal, Walsh v., 93, 160. Mayor, &c , of Montreal, Watson v., 94. Mayor, &c, of the City of Montreal and Wood, 47. Mayor, &c., of Quebec, Failes and, 332. Mayor, &c, of Quebec, Glackemeyer v., 173, 256. Mayor, &c, of Quebec, Macpherson v., 254. Mead v. Reipert et al., 195. Meade v. Battle, 230. Meagher, Macnamara v., 49, 112. Meath et al. v. Fitzgerald, 133. Meek, McLeod v., 247. M^igs, Hitchcock v., 54. Meikle, Lovell v., 250. Meikleham et al.,Abbott et al. and, 168. Meikleham, Shaw et al. and, 321. Meikleham, Fowler and, 135. Meiklejohn, Pozer v., 70, 113. Meiklejohn v. Rex and Caldwell, 334. Meiklejohn v. Young et al., 27. Menard,, Trudeau et al. v., 120, 162, Menfeclier, Gouthier v., 243, 263. Mercier v. Blanchet,. 107. Mercier v. Brillon, 139. Mercier v. The Colina, 12. Mercier, Fortierv.,.21B. XXXIV TABLE OP CASES. Mercier v. The Mayor,, &c, of Mont real, 175. Meroile v. Fournier et al., 189. Mereile, Rodier v., 28. Mercure and Laframboise, 56. Merizzi and Cowan, 268. Mernagh, Warner v., 42. Merrill, Cornell v., 50. Merrill, Smith v., 223. Merritt, v. Fyson, 55. Merritt v. Lynch, 39, 201, 249. Methot, Dionne v., 181. Methot et al. v. O'Callaghan, 110. Methot et al. v. Sylvain, 141. Metivier, Lenfesty and, 45. Metrisse et al. and Brault, 22, 98, 174, 190, 191, 195. Mettayer v. McGarvey, 1,275. Meunier v. Cardinal, 114, 153. Meunier, Durocher v., 93, 139, 168. Meunier, Sharing and, 10, 33. Meyers, Lefebvre v., 298. Michaud et al., Bisson et al. v., 242. Michaud, Caron v., 114. Michaud, Pelletier v., 143. Michaud, Sirois v., 105. Michon, Lerocqne and, 90, 188. Michon v. Leigh, 86. Miclette, Paquet et al. v., 134. Middlemiss, Crump v., 194. Mignier v. Mignier, 10. Miles v. Aspinall, 40. Mills et al., Sen6cal v., 279. Miller, Bruneau v., 55. Miller et al., McDonald v., 6,231. Miller et al., Mullins v., 212. Miller v. Smith, 6. Miller v. Snell, 13. Millette, Reniere and, 63. Mills et al. v. Ferguson, 276, 280. Mills v. Philbin et al., 247. Milne, Pepin v., 77. Milne, Perry v., 77, 151, 153, 251, 310. Milne v. Ross et al., 274. M. L. E.F. v. L. E. C, 17. Minor v. Gilmour, 267. Minoque, Ryan v., 195. Miramichi, The, 65, 132, 180,205,243. Mire v. Letourneau, 243. Mireau v. Ratelle et al., 128. Mitchell and Brown et al., 317. Mitchell and Cousineau, 330. Mitchell, Henry v., 226. Miville, Jourdain v., 46. Moffatt et al. v. Bouthillier, 91. Moffatt, Joseph v., (note 174), Moffatt, Murphy v., 104. Mog6, Belanger and, 30, 231. Moge and Dupre, 14*. Moge, Exp., 309. Moge v. Lapre, 145, 164. Moge v. Latraverse, 319. Moisan and Jorgensen, 266. Moir, Lord v., 136. Moley, Exp.,81. Molson et al. v. Burroughs, 37, 151, 163, 222, 275, 276, (note 276). Molson et al. v. Hart et al., 18. Molson, Maitland v., 69. Moison et al. v. McAuley, 297. Molson, The Quebec Bank v., 74. Molson et al., Quebec Fire Ins. Co. v., 115, 158. Molson and Renaud et al., 32. Molson et al. v. Renter et al., 230. Molson, Richardson v., 272, 286. Molson et al. and Walmsleyy»242. Molson's Bank v. Falkner et al., 30, 231. Molson's Bank, Leslie et al. and, 271, 343. Monarch, The, Grenier et al. v. 120, 158. Monarch, Pacaud et al. v. The, 155. Monaghah v. Benning, 78. Mondelet v. Power, 278. Monette, exp., 80. Mongeon et ux. v. Turenne, 216. Monjeau, Asselin v., 241. Monjeau v. Dubnc, 307, 344. Monjeau, Richer v., 165. Monk, Exp., 174. Monk v. Morris, 290. Monk et al. v. Viger, 14. Monnette, Hitchcock and, 19. Montgomery, v. Gerrard, 213. de Montigny, Exp.,61. de Montigny, Lavallee et al. v., 114. de Montigny, Lefebvre v., 13, 227. Montizambert and Talbot, 260. Montminy, Wurtele et al. v., 145. Montreal Assurance Company and Aitken, 169. Montreal Assurance Company, Arthur and, 22. Montreal Assurance Company and McGillivray, 26, 117, 155, 156, 160, 168, 227, 254. Montreal and Bytown Railroad Co., Abbott v., 206. Montreal and Bytown Railway Co., Booth v., 223, 294. TABLE OF CASES. XXXV Montreal and Bytown Railway Co., Doutre v., 224. Montreal and Champlain Railroad Co., Ryan et al. and, 44. Montreal City and Dist. Bdg. So. v. Kerfut et al., 262. Montreal Fire Insurance Company v. Stanstead, Shefford and Chambly Railway Company, 246. Montreal Harbour Commissioners and Carrignan, 61, 81. Montreal and Lachine Railway Co. and Seers et al., 148. Montreal Mutual Ass. Co. v. Dufresne, 156, 245. Montreal and New York Railroad Co., Arcand v., 169. Montreal and New York Railroad Co., Germain v., 200, 255. Montreal and New York Railroad Co., McDonald and, 184. Montreal Ocean Steamship Co., Grinton v., 225. Montreal Rubber Co., Benning v., 209. Monty v. Ruiter, 227, 339. Moody v. Vincent et al., 213. Mooney, Marchildon v., 86. Moor et al. v. Dyke et al., 99, 279. Moon, Early v., 79. Moquin, Bonneau v., 125. Moquin, Exp., 62. Morange, Trobridge et al. v., 48, 53, 269. Morasse v. Gaevremont, 211. Moreau et al. v. Leonard, 128, 152. Moreau, Martin v., 263. Moreau v. Matthews,- 18, 73. Moreau, Motz v., 4, 5, 23, 317. Moreau v. Riches, 1 17. Morgan v. Benjamin, 294. Morgan v. Forsyth et al., 299. Morgan, Handsley v., 212. Morgan, McDougal v., 227. Morgan, "Warren et al. v., 52. - Morin v. Daly, 86, 144, 205. Morin, Forsyth v., 103, 270. Morin v. Lefevre, 75. Morin v. Legault dit Deslauriers, 245. Morison v. Kierskowski, 229. Morisset, Jobin v., 175. Morkill v. Cavenagh, 139. Morland v. Dorion, 318. Morland, Hastie v. 191, 222, 280. Morrill v. McDonald et al., 289. Morrill v. Unwin, 236, 282. Morrin, Cheval dit St. Jacques v., 71. c* Morrin v. Daly, 146. Morrin et al. v. Smith, 261. Morris et al. and Antrobus, 122. Morris, Dion v., 1 97. ' Morris, Monk v., 290. Morris et al. v. McGinn, 74. Morris et al. v. Unwin et al., 118. Morris, Wilson v., 84, 93. Morrisset, Exp., 61. Morrissette v. Jodoin, 300. Morrison, Chapdelaine v., 74. Morrison, Cote et al. v., 133, 240, 335. Morrison v. Grand Trunk Railway Co. of Canada, 255. Morrogh v. Munn, 239. M< rrow et al., Fogarty v., 168. M<. rrow, Joseph v., 283, 320, 337. Morrough et al., Oakley v. 127, 244. Morse and Brooks et al., 225. Morson v. David, 319. Moss et al. v. Brown e*t al. and Hardy, 74. Moss v. Carmichael, 115. Moss and Douglass et al., 129. Motz v. Moreau, 4, 5, 23, 317. Mount and Dunn, 248. Mountain v. Dumas, 228. Mountain v. Leonard et al., 171. Muir et al., Berthelet v., 31. Muir and Decelle, 287. Muir v. Perry, 177. Mulcahey, Hasset v., 51, 52. Mullen v. Jeffery, 327. Mullin, Doutney v., 103. Mullin, Helliwell v., 221. Mullins and Bellemare, 82. Mullins, Masson v., 298. Mullins v. Miller et al.,212. Municipal Council of Chester West, Le Messurier and, 197. Municipality of Shefford, Reg. v., 198. Municipality of Two Mountains, Reg. v., 198. Munn, Belanger v., 290. Munn v. Halferty, 277. Munn, Morrogh v., 239. Munro, Cuvillier et al. v., 193. Mure et al. v. "Wileys et al., 70. Murphy, Brossard v., 174, 229. Murphy et al., Clark et al. v., 321, Murphy v. Donovan, 146, 208. Murphy -v. McGill, 218. . . Murphy v. Knapp, et al., 1,5. Murphy v. Moffatt and Levey et al., 104. Murphy v. Paige et al. ; 211. XXXVI TABLE OF CASES, Murphy, Peck et ah v., 215, Murphy v. O'Donovan, 1 10. Murphy, Q'Sullivan v., 228,257. Murphy et al. v. Wall, 262. Murray, Desbarats v., 70. Murray v. Gorman, 260. Murray, Hogue aud, 86. Murray and Macpherson, 333. Murrison, Tobin v., 320. Music Hall Association, The, Lee v., 92. Mussen v. Philbin, 150. Mutual, The, Chalmers v., 155. Mutual, the, Cusack v., 157, 186. Mutual, The, Soupras v., 155. Nadeauand Dumon, 142. Nagle,. Clapin v., 47, 103, 270. Nagle, Donnally v., 136. Nau and L'Artigue, 75, 90. Naud-Labrie v. Clement, 8 . Neilson, Exp., 184. Nelson, Baile v., 273. Nelson, Price v., 141, 149. Nelson Village, The, 32, 64,, 66,. 270. Nesbitt, Atkinson v., 36. Nesbitt and The Bank of Montreal, 100.. Nesbitt, Lampson v., 305. Nesbitt et al. v. Turgeon et. al., 221. Neveu et al. v. De Bleury, 88, 1 17. New City Gas Co. v. McDonnell, 215. Newham, The, 178, 235. New York Packet, The, 138, 195, 316, 325, Newton, Black v., 271, 298, Newton et al. v. Roi, 2. Newton, Rowell and, 121. Niagara, The, 180, 270, 303. Niagara, The— Elizabeth, The, 32, 67, 68 r 69, 182, 235, 271, 303, 324. Nianentsiasa and Akwirente et al., 21, 94, 151, 315. Nicholls et al.,- Evans and, 133. Nichols et al., Westrop v., 45. Nimmo, Chapman v., 166. Ninteau v. Tremaiu, 252. Noad et al. v. Bouchard et al., 203, Noad v. Chateauvert et al., 88, 245. Noad and Lampson, 203,. 279. Noad et al*.,. Treinbkty and, 275. Noad et al. v. Von Exeter, 223.. Noad, "Warren v., 93. Noelv. Chabot y 227. Nordheimer v. Hogan et al., 139. Normand and Crevier et al?., 145. Normand v. Huot. dit St. Laurent, 226. Norrisj Wilson v., 12.. NQvioa, Quintal v., 17$, 182. Nutt, Exp., 79. Nye and Colville et al.* W, 146, 264. Nye v. Isaacson, 305. Nye, Nalo v., 115, 128, 161, 319, . Nye v. Macalister, 48. Nye v. McDonald, 117. Nye v. Potter, 133. Nye, Seaver et al. v., 75. Nye, Whyte and, 169. Oakley v. Morrogh et al., 127, 244. Oakman et al.^Bisown and, 140, 143. O'Brien, Ostell v., 230. O.'Calaghan, Methot v., 110. O'Connell, Adams v., 107. O'Connell v. Corporation of Moatreal, 37. O'Connor, Yon v., 208. O'Donahue, Campbell and, 135. O'Donovan, Murphy v., 110, 208. O'Farrell, Smith et al. v., 136, 232. O'Hara, Barber et al. v., 137. O'Heir, Malo v., 243. Oliva, Boissonnault and, 2€7, 295. Oliva, Fournier v., 295, Oliver, McBlain and, 210. Oliver, Valleau v., 89. Olseav. Forstersen, 234. O'Meara v. McCleverty 3. O'Neil and Atwater, 219. O'Neil et al., Cannon v., 7, 219* O'Neill, Lewis v., 33& Ontario Bank, The> Perrault et al. and, 2, 344. Orkney, Ensor and, I48w> Orkney et al., Ritchie v., 64. Orr, Dewar v., 3. Orr and Fisher, 262. Orr v. Hebert, 314, Orvis v. Vbligny, 92. Osgood and Cftllen, 24. Osgood and Kellam, 219. Osprey, The, 77. Ostell, Bridgman and, 78. Ostell, Joseph v., 2S> 2% (note 38.) Ostell v. O'Brien, 230. Ostell, Ryland v., 296, O'Sullivan v. Murphy, 228, 25?. Ouellet v. Fournier, 281. Ouellet, Bariseau v., 3& Ouimet v. MeCalhim and Clarke,' 135. Ouimst et aj* v. Papin, 84. TABLE OF CASES. xixvn Oufettetetah and Seriecal eXaL, 10, 115, 164. Owens v. Dubuc, 30, 251, 338. Pacaud v. Bourdages, 32. Paeaud v. Dube* 233, 282. Pacaud v. The Monarch, lS5. Pacaud et al., Senecal v., 165* Pacaud, Syndics of Parish of St. Nor- bert v., 63. Pacaud, Talbot v., 254. Page v. Carpentier, 224. Page et al., Clement v., 320. Page, Huot v., 163. Pagnuelo, Fabrique de Vaudreuil v., 338. Pagnuelo, Prowse v., 22L Paige et al., Jackson v., 211, 280. Paige, Murphy v., 2 1 1 . Paige v. Savard, 123. Pain, Paterson et al. and, 39. Paliser v. Boy, 124. Palliser, Reg. v., 88. Palmer v. Lapensee, 123. PalSgravej Rdss and, 152, 163. Palsgrave v. Senecal et al., 136. Panet et al., Blake et al. and, 298. Panet et al. v. Lorin et al., 139. Panet v. Larue, 142. Pangman v. Bricault, 290. Papans, Tnrcotte v., 204, 243, 262, 344. Papin, Beaudry and, 169, 200, 300. Papin, Lynch v., 63, 85, 127, 263. Papin, Ouimet et al. v., 84< Papineau* The, 192, 259. Papineau, Belariger and, 300. Paqiiet v. Gaspard, 17, 229. Paquet and Globenskl, 219. Paquet, Jackson et al. and, 256. Paquet et al. v. Miclefte, 134. Paquet et al. and Robitaille et al., 198. Paquet et al. . Scott and, 188. Paqtfette v. Limoges et vir., 189. Paradis^v. Alain, 9, 282. Paradis, Exp., 287. Paradis v. Lamere, 195. Parant et al., Demers and, 112, 332. Parant, Welling v., 114, 152. Pare, Delard v., 139,243. Pare and Deronsselle, 314. Parent, Douglass v., 279. Parent v. Grenier, 299. Parent et al. Huot v., 14, 239. Pariseau v. Ouellet, 39. Pariseau, Wilson v., 135,208,291,305. Park, Anderson v*, 88, 248. Park, Grainger et al. and, 125. ( Parke, Russell v., 217. Parker v. Cochrane, 134. Parsons et al. v. Kelly, 201. Paterson v. Davidson, 59. Paterson, Emerick v., 159. Paterson et al. v. McCallUm et al., 140. Paterson et al. V. Pain, 39. Patersons et al. v. Perceval, 91. Patez et al. v. Klein, 328. Paton, Cusaek et al. v., 122. Pattenaude and Lerige, 148. Patenaude, Theberge v., 153, 222. Paterson v. Hart, 53, 232. Patterson, The Seminary of Quebec v., 242. Patton, Blackiston v., 136. Patton and Buchanan, 141. Patton, Ferguson v., 168. Patton v. Fourhief, 290. Patton, Macfarlane v., 203. Patton, Reg. v., 267. Paxton et al., Shuter et. al. v., 45. Payaht, Comr. of Indian Lands v., 151. Payette, Deslohgchamp et al. v., 175. Pearce v. The Mayor, &c, of Montreal, 175. Pearce et al., McGillis et al. v., 23. Peck and Harris, 1 99. Peck, Lyman et al. v., 200. Peck et al. v. Murphy, 215. Peddie v. The Quebec Fire Ins. Co., 159. Peel et al., Adams v., 177. Pelerin, Leblanc and, 62. Pelletier v. Commissaires d'Ecole de Ste. Philomehe,288. Pelletier, Dalp6 v., 245. Pelletier v. Freer, 54. Pelletier v. Lajoie, 41. Pelletier v. Michaud, 143. Pelletier, Reg. v., 120. Pelletier, Tessier v., 53. Pelletier, Tetu v., 51. Pelly, Kerry v., 85. Peloquin, Benoit v., 215. Peloquin, Crebassa et al. v., 339. Peltier v. Laricheliere, 174. Pemberton etal. The City Bank v., 294. Pemberton et al. v. Demers, 117. Pemberton, Principal Officers of Art. and, 261. Pentland et al. and Drolet, 21. People's Bdg. So. v. Evans, 211. People's Bd|. So., Sol. Genl. v., 146. XXXVIII TABLE OF CASES. Pepin v. Christin, 5. Pepin v. Milne, 77. Pepin, Thomas v., 77. Perceval, Gillespie v., 90. Perceval v. The Harrower, 259. Perceval, Pattersons et al. v., 91, 315 Perceval, Rice v., 129, 202. Perkins, Kinney and, 269. 292. Perkins v. Leclaire, 96. Perkins, Lyman et al. v., 228. Perkins, Sym.es v., 75. Perras v. Beaudin, 134, 205. Perrault v, Arcand, 282. Perrault et al. v. Bacquet 239. Perrault et al., Borne v., 58. Perrault v. Brochu, 199. Perrault Desautels v., 205. Perrault v. Deseve, 50. Perrault, Glackemeyer et al. and, 241. Perrault, Lacroi? v., 127. Perrault, Loranger v., 171. Perrault v. Malo, 226, 243. Perrault et al. and The Ontario Bank, 2, 344. Perrault and Simard et al., 151, 196. Perrigo and Hibbard, 70. Perrin, Marion and, 105. Perrin, Robertson et ai. v., 108. Perry, Carsant v., 252. Perry, Les Dames Religieuses de Que- bec, v., 227. Perry and Gugy, 102. Perry v. Milne, 77, 151, 153, 251, 310. Perry, Muir v., 177. Perry v. St. Lawrence Grain Eleva- ting and Floating Storage Com- pany, 288. Perry, Wilson, v., 114. Petit v. Bechette, 194. Petit v. Lucas, 77. Petitclerc, Reg. v., 143. Philbin, Mills v., 247. Philbin, Mussen v., 150. Philbin, Torrance v., 160, 241. Phillips v. Anderson, 151. Phillipps v. Hart et al., 152, 229. Phillips v. Sanborn, 248, 299. Phcebe, The, 11, 163, 166, 194, 210, 217,265,315,323. Phosnix Assurance Company, Scott v., 29, 154. Pieault v. Demers, 10, 242. Piche and Pich6, Larochelle v., 216. Pichette et al., Gaulin et ux. v., 245, 282. Pierce, "Willis et al. v., 72. Pigeon v. The Mayor, &c, of Montreal 95, 238. Pilon, Thurber v., 35. Pilot, The, 328. Pilot, Boisseau v., 298. Pinet et al., Cadienx, and 43, 147. Pinsonnault, Dendurand et ux. v., 94* Pinsonnault and Dube, 282. Pinsonneaul*. v. Henderson, 31. Pinsonneault v. Mailloux, 276. Pinsonneault v. Ramsay, 31. Pirrie v. McHugh et al., 171,226. Pitt v. Lucas, 77. Plamondon v. Farquhar, 218. Plamondon, Greenshields, v., 36, 342. Plamondon et al. v. Sauvagea% 253. Plante, Exp., 137. Plante, Grant v., 201, 333. Plante, Lavoie v., 133. Piatt and Charpentier, 305. Piatt v. Kerry, et al., 172. Piatt et al. v. Platt'et al., 221. Plenderleath, Hamilton v., 335. Plenderleath v. McGillivray, 5, 264. Plinguet, Beaudry v., 214, (note 215.) Poliquin v. Belleau, 141. Pollock and Bradbury, 71,319*. Pollock, Gordon et al. v., 44.. Pollock et al., Laurin v., 116.. Poole, Lynch v., 73, 19 J. Poirier, Februyer v., 276. Poirier v. Lacroix, 106, 160, 203. Poirier v. Tasse et .al., 9. Poisson, Rivet v., 221. Pominville, DeChantal v., 160, Porter v. Ferrier, (note 224.) Porter, Hoffnung and, 22, 161. Porter et al., Senauer et al. v., 177.- , Poston et al. v. Hall et al., 165. Poston et al. v. Thompson, 276. Pothier, Viger v., 138, 334. Potter, Nye v., 133. Poulin, Eraser et ux.'v., 144. Poulin v. Langlois, 200. Pouliot, Corriveau v., 172. Pouliot v. Lavergne, 145. Poutre, Boudreau et al. v., 206*. Poutre and Chapdelaine, 2Ck Poutre v. Laviolette, 136* Poutr6 v. Poutre, 179. Power v. Bezeau, 109>. Power, Mondelet v., 278. Powers v. Whitney, 288. Pozer v. Clapham, 121. Pozer v. Green, 246. Pozer, McCallum v., 294, TABLE OF CASES. XX XIX Pozer v. Meiklejohn, 70, 113. Prefontaine, Exp., 61. Prefontaine and Prevost et al., 274. Premier, The, 179,217. Prevost and Allaire, 285. Prevost et al. v. Breux, 191. Prevost et al., Bruneau and, 24. Prevost v. Delesderniers, 103, 270. Prevost v. Leroux, 74. Prevost et al., Prefontaine and, 274. Prevost, Reid and, 173. Price, The Attorney General v., 96. Price v. Nelson, 141, 149. Price v. Perceval, 129, 202. Price v. Wilkinson et al., 296. Price, Wnrtele v., 273. Prienr et al., Boyer et al. v., 281. Prieur, Lacroix v., 175. Primeau and. Sosnrs de Charite, 182. Prince Edward, The, 329. Prince, Scott et al. v., 78. Principal Officers of Artillery, Grant and, 181. Principal Officers of Artillery and Pem- berton, 261. Principal Officers of H. M. Ordnance, Laporte and The, 242. Principal Officers of H. M. Ordnance and Taylor et al., 10, 287. H. M. Principal Secretary of State for War Department v. Edmonstone, 169. Prive, Dansereau et al. v., 45. Proctor, Beaudet and, 21. Proulx, Beaudryand, 161, 319. Proulx, Dube v., 224. Proulx v. Proulx, 152. Provencher et al., Fisher v.', 19. Prowse v. Pagnuelo, 221. Purington v. Higgins, 237. Pyke et al., McTavish and, 189. Quatrepattes, The Queen v., 263. Quebec Bank v. Maxham et al., 251, 321. Quebec Bank, The, v. Molson, 74. Quebec Board of Trade, Reg. v., 88. Quebec Building So. v. Atkins et al., 206. Quebec Building So. v. Jones, 11, 87. Quebec Exchange, The Quebec Semi- nary v. The, 290. Quebec, The, Alleyn v., 154. Quebec Fire Assurance Company and Anderson et al., 25. Quebec Fire Ass. Co., Fournier v., 86, 216. Quebec Fire Ins. Co. v. Molson et al., 115, 158. Quebec, The, Dill v., 155, 200. Quebec Fire Assurance Company, Keys v., 47. Quebec Fire Ins. Co., Peddie v., 159,* Quebec Fire Ins. Co., Scott v., 154. Quebec and Richmond Railroad Co. v. Dawson, 228. Quebec and Richmond Railroad Co. v. Quinn, 29. Quebec Seminary v. The Quebec Exchange, 290. Quentin dit Dubois and Boston, 297. Quesnel v. Donegani, 111. Quesnel, Donegani and, 23. Quig, De Lery v., 131. Quinn v. Atcheson, 50, 51, 314. Quinn, The Corporation of St. Jerusa- lem v., 83. Quinn, The Equitable and, 159. Quinn, McDonald and, 198. Quinn, Maloney and, 129. Quinn, The Quebec and Richmond Railway Co. v., 29. Quinn, Ross v., 239. Quintal, Croteau v., 295. Quintal, Cummings and, 283. Quintal v. Novion, 175, 182, Quintin et al. v. Girard et ux., (note 100,) 174, 335. IV. ......a, J. ••••••• V., UOO. Racine v. The Equitable Insurance Company, 154. Rainsford et al. v. Clarke et al., 174. Ramsay, Cazelais and, 143. Ramsay v. David, 38. Ramsay v. Guilmettre, 182. Ramsay v. Hitchins, 103, 270. Ramsay v. Judah et al., 72. Ramsay, Pinsonneault v., 31. Ranger v. Chevalier et al., 220. Rapin et al., Chaurette v., 307. Rasco v. Desrivieres, 292. Rassette v. Dalrymple, 207. Ratelle et al., Mireau v., 128. Ravary et al. v. The Grand Trunk Railway Company, 95, 255. Raymond v. Walker, 55. Ray, Wilson v., 51. Read v. Birks, 78. Read and Lefebvre, 92. Recovery, Tlie, 186, 326. Redpath v. Blackmon et al., 76. Redpath et al. v. McDougall, 306. XL TABLE h¥ CA fefeS. Heed, Hughes v., 182, 237, 282. Reeves, Bouvier and, 24. Reffenstein, Canadian Inland Steam Navigation Company v., 253. Refour v. Senecal, 104. Regina v. Baird, 266. Regina v. Baibeau et al., 61. Regina v. Beaulieu, 40. Regina, Belleau and, 95, 171, 229. Regina v. Berube, 120. Regina and Black, 160. "**■ Regina and Bois, 261. Regina and Bruce, 201, 204. Regina v. Carroll, 88. Regina, Chandler et al. and, 162. Regina v. Comt6 et al., 144, 145, 146, Regina v. Corporation of Shefford, 198. Regina v. Creamer, 13, 88. Regina v. Crotean, 40. Regina v. Darling, 220, Regina v. Doherty, 182. Regina v. La Fabrique de la Pomte aux Trembles, 184. Regina v. Faneuf, 31. Regina v. Holt et al., 131. Regina v. Hughson et al., 151. Regina, Lavoie and, 148. Rpgina v. Laviolette et al., 38. Regina v. McGinnis, 195. Regina v. McPherson et al., 45. Regina v. McQuiggan, 43. Regina v. Martin, 151. Regina v. Maxweil, 151. Regina v. Municipality of Sbeifferd, 198. Regina v. Municipality of Two Moun- tains, 198. Regina v. Palliser, 88. Regina v. Patton, 267. Regina v. People's Building So., 146. Regina v. Peltier, 120. Regina v. Petitclerc, 143. Regina v. Price and McGill, 96. Regina v. Quatrepattes, 263. Regina v. Quebec Board of Trade, 88. Regina v. Robinson, 88. Regina v. Ryan et al., 201. Regina, Exp., Spiers and, 159. Regina v. St. Louis et al., 129. Regina v. Two casks of planes and Darling, 220. Regina v. Webster, 88. Regina v. White et al., 42. Regina v. Yule et al., 83. Reid and La Fabrique de Chateauguay, 217. Reid and Prevost, 173. Reid, Rodgerson et al. and, 179. Reid, Wilson v., 51. Reipert, Mead v., 195. .» Renaud and Gngy, 112, 164, 259. Renaud, Guillet drt Tonrangeau and, 245, 336. Renaud, Lenfesty v., 146. Renaud, Marchand v., 77, 101. Renaud et al., Molson and, 32. Reniere and Milette, 63. Renkin and Foley, 71. Renouf, Exp., 185. Reuger, Rolland v., 41. Reuter et al., Molson et al. v., 230. de Repentigny v. Doherty, 164. Reynolds and Durnford, 82. Rex v. Black, 237. Rex, Caldwell and, 333. Rex v. Gingras, 60. Rex, Meiklejohn v., and Caldwell, 334. Rex, Spra'tt v., 260. Reynolds and Durnford, 82. RMaume, Oorperaftion Comte d*¥a* maska and, 197. Rheaume and Fortier, 23. Ricard v. Leduc, 105. Rice et ak and Aherfr, 150, 160. Rice v. Bowker et al., 241. Rice V. OoD,^?. Richard v. The Champlain and St. Lawrence Railroad, 223. Richard, Delisle v., 107. Richard and Denison, 77. Richard v. La Fabrique de Qnebee^lT. Richards v. Ritchie et al., 84. Richardson, Desrivieres v., 82, 182. Richardson V. Molson, 272, 286. Richelieu Co., Fry and The, 117, 331. Richelieu, Cie. de, Sauvageau v., 69. Richer, Boudreau v., 85. Richer v. Mongeau, 165. Riches, Moreau v., 117. Rickaby v. Sutliffe, 43. Ricker et al., Waggoner and, 24. Rigney et al., Bell v., 236, 313. Rimmer v. Bouchard et al., 300. Rioux, Exp., 184. Ritchie and Joly, 177. Ritchie v. Orkney et al., 64. Ritchie et al., Richards v., 84. Rivers v. Duncan, 99, 169. Rivet et al., Dorion et al. v., 148, 295. Rivet v. Poisson, 221. Robert and Anne^The, 187, 285. Robert, Bruneau v., 134. TABLE OF CASES. xti Robert v. Danis, 102, 180. Robert et al., v. Dorion et al., 100, (note 100.) Robert et al., Exp., and Viger et al., 60. Robertson, Andrews and, 309. Robertson et al. v. Attwell, 271, 274. Robertson, Exp., Pollock et al., 216. Robertson et al. v. Ferguson, 279. Robertson v. Jones, 262. Robertson, Leeming v., 226. Robertson et al. v. Perrin and Perrin, 108. Robertson, Sauvageau v., 37, 263. Robertson v. Stuart, 7. Robertson, Tunstall v., 131. Robillard, Higgins et al. v., 136. Robinson, Exp., 257. Robinson v. McCormick, 269, 292. Robinson, Reg. v., 88. Robinson v. Robitaille, 184. Robinson, Ryan et al. v., 311. Robitaille, Galarneau et al., 231. Robitaille et al., Paqiret et al. and, 198. Robitaille, Robinson v., 184. Robitaille, Routier v., 114, 152. Robson v. Hooker et al., 58. Roche v. Fraser et al., 330. Rocheleau, Exp., 268. Rocheleau v. The St. Lawrence and Atlantic Railway Co., 254. Rochon, Dalpe v., 93. Rochon et nx. v. Duchene et ux., 106. Rochon v. Fraser, 336. Rochon v. Leduc, 63. Rodden et al. v. Macfarlane v., 7?>, 319, Rodden et al., Scolfield et al. v., 124, 137j 205, 258. Rodgerson et al. and Reid, 179. Rodier v. Joly, 278. Rodier v. Mercile, 28. Rodrigue, De Beaujeu v., 37, 215. Roe v. Jones, 118. Rogers et al. v. Rogers, 72. Roi, Newton et al. v., 2. Rolland, Bristow and, 23, 264. Rolland and Judah and, Judah, 3, 257. Rolland and Lareau, 181. Rolland v. Lariviere, 103. Roland et al. v. LOranger, 332. Rolland v. Reuger, 41. Rollin et ux., Leblanc v., 247, 248. Rollraan, Latonche v., 199. Roman Catholic Bishop of Montreal, Try et al. and, 141. Romain v. Dugal and Jobin, 232. Rompre, Charest and, 21. Romulus, The, 167. Rosa, Blackfeton v., 226. Rose, Coutlee v., 24, 32, 121, 208. Rose, Exp., 191. Roslin Castle, The, 32, 87, 324. Ross and Berthelot et al., 170. Ross et al. v. Burns, 52. Ross v. Daly, 142. Ross, Dessein v., 117. Ross et al., Heugh et al., 56, 343. Ross, Lamothe and, 144. Ross, Lane et al. v., 72. Ross et al., Langmuir and, 122. Ross, McLean v., 137. Ross et al., Milne v., 274. Ross and Palsgrave, 152, 163. Ross v. . v.,289,. XLYI TABLE OF CASES. Toronto, The, 11, 30, 95, 116, 166, 214, 323. Torrance et al. v, Allan, 57, 344. Torrance and Bouthillier, 91. Torrance v. Chapman et al., 34, 184, 230. Torrance et al., Gaherty v., 57, 92. Torrance et al. v. Gilmour-etal., 55. Torrance, Hoyle and, 240. Torrance, Macdongall v., 48, 52, 58, 59. Torrance v. Philbin, 160, 241. Torrance, Strother v., 125, 241, Torrance, Tate et al. v., 232. Torrance et al. v. Thomas, 280. Torrance et al., v. Torrance et al., 161. Tourigny, Lednc v., 276, 280. Toussaint et al. v., Leblanc, 18, 107. Towsend, Simard and, 20, 26, 167. Tracy, Exp., 174. Tremain, Ninteau v,. 252. Tremain v. Sansum, 53. Tremblay v. Bouchard, 261. Tremblay and Champlain and St. Lawrence Railroad Company, 28. Tremblay and Noad et al., 275. Tremblay v. Tremblay, 27, 231. Tr6pannier v. Dupuis, 7, 8. Trepanier, Stuart and, 253. Trigg et al. v. Geoffroy, 312. Trigge et al. v. Lavallee, 112, 313. Trobridge et al. v. Morange, 48, 53, 269. Trothier et al., Hardy et al. v., 63. Truax v. Hunter, 289. Trudeau,- Exp., 62. Trudeau v. de Lanaudiere, 162, 202. Trudeau et al. v. Menard, 120, 162. Trudel, Langlois v., 290. Trudelle v. Allard, 229. Trudelle v. Boy, 4. Trust and Loan Company v. Doyle, 133, 222. Trust and Loan Company, Jarry and, The, 19, 132, 343. Trust and Loan Company v. Julien and May, 206. Trust and Loan Company and McKay, 153, 294. Trust and Loan Company v. Vade boncoeur, 305. Trustees of The Dissentient School of St. Henri v. Young, 286. Trustees Montreal Turnpike Roads and Bernard, 196. Truteau, Labadie and, 140. Try and Roman Catholic Bishop of Montreal, 141. Tucker, Wrigley v., Ill, 161. Tuft v. Irwin, 238. Tullock, LeTebvre v., 52. Tumbelty, Devlin v., 14. Tunstall v. Robertson, 131. Turcot, Exp., 184. Turcot, Leduc v., 213. Turcotte, Berthelot and, 73. Turcotte v. Pappans et ux., 204, 213, 262, 344. Turcotte, Bouthillier v., 27, 71, 213. Turcotte, Roy et al. v., 36. Turenne, Mongeon et ux. v., 216. Turenne et al., Mongeau v., 231. Turgeon, Cowan. v., 245. Turgeon v. Hogue, 127. Turgeon et al., Nesbitt et al. v., 221 Turnbull et al., Levey v., 98. Turner v. Boyd, 215. Turner v. Lomas, 216. Turner et al. v. Whitfield, 150. Tuttle, Cockburn v., 296. Turtle, Simard v., 167, 202. Tweed, The, 186. Tyre and Boisseau, 175. Union Building Society v. Russell, 83, 196. * Union etal., Morris et al. v., 118. Unity Ins. Company v. Hickey et al., 128. Unwin, Morrill v., 236, 282. Vachon et al., Bernier v., 33. Vachon, Fisher et al. v., 176. Vadeboncoeur, Trust and Loan Co. v., 305. Valin v. La Corporation de Terre- bonne, 263. Valleau v. Oliver, 89. Vallee v. Latouche, 84. Vallee, Lefebvre v., 40. Vallee, Savard v., 118, 216. Vallieres de St. Real., Exp., 60. > Vallieres, Hart v., 78. Vallieres, v. Vallieres, 17. Valois et al., Corporation of Point Claire and, 203. Vandal v. Grenier, 1 13. Vanier v. Falkner, 115. Vankoughnet v, Maitland, 311. Vannevar et al. v. Decourtenay, 40, Vannier et ux. v. Larche, 92. TABLE OP CASES. XLvn Varin v. Cook et ah, 79. Varuna, The, 170, 187, 193, 323, 325, 329. Vaughan v. Campbell, 133. Veilleux v. Ryan, 337. Venner v. Barnard et al., 208. Venner v. Futvoye et al., 249. Venus, The, 170, 326. Verbois v. Saucier, 139. Verdon v. Groulx, 6,106,312. Verner, Barbier v., 166, 176. Veroneau, Exp., 62, Veronneau, Waters v., 126. Verrault, Wurtele v., 216. Verret, Langlois et al. v., 62. Vezina, Germain and, 19. Vezina, Souligny v., 196. Vian, Dumas v., 31. . Viger v. Beliveau, 13, 24,, 172, 176. Viger, Monk et al. v., 14. Viger v. Pothier, 138, 334. Viger et al., Robert et al. and, 60. Vilbon, Theberge v., 104, 239. Villeneuve, Casey v., 226. Vincelette v. Fabrique de St. Atha- nase, 184. Vincent, Exp., 332. Vincent et al., Moody v., 213. Vinet, Beaudry v., 75. Vinet v. Gauvin, 240. Vinet, Seminaire de Quebec v., 161. Voligny, Orvis v., 92. Vondenvelden and Hart, 141. Von Exeter, Noad et al. v., 223. Voyer v. The Mayor, &c, of Montreal, 83. Wade v. Hussey and Hussey, 122, 307. Waggoner and Ricker et al., 24. Waldorf, Dor win v., 138. Walker, Blackburn v., 216. Walker v. Burroughs, 205. Walker, Canada Lead Mine Co. v., 76, 212. Walker et al. and Ferns, 103, 233, Walker et al., McMaster and, 99. Walker et al., Raymond v., 55, Walker, Rostron et al. v., 77. Wall, Murphy et al. v., 262. Wallace v. Brown, 125, 126. Walmsley, Molson et al. and, 242. Walsh v. The Mayor, &c, of Montreal, 93, 160. Walton, Langlois v., 252. Ward et al. Ryan and, (note 38,) 85, 102. Wardens of the House of Industry, Ferrie and The, 83, 245. Wardle and Bethune, 20, 344. Wardley et al., Dooley v., 3. Warner v. Blanchard, 310. Warner, Exp.; 321, 330. Warner v. Fyson, 55. Warner v. Gerrard, 89. Warner v. Mernagh, 42. Warren v. Douglas, 136. Warren v. Henderson, 59. Warren v. Kay, 165. Warren et al. and Morgan, 52. Warren v. Noad, 93. Washington Irving, The, 326. Waters v. Veronneau, 126. Watson et al., Devoyau and, 45, 242, 335. Watson and The Mayor, &c, of Mont- real, 94. Watson et al., Stephens et al. v., 227. Wear, Gibson v., 6, 219. Webster, Reg. v., 88. Webster v. The Grand Trunk Railway Company, 93, 191,220. Welling v. Parant, 114, 152. Wells, McGill v., 224. Weymess et al. and Cook, 45. Western, The, Atwell v., 155. Western, The, Mathewson v., 156. Westrop v. Nichols et al., 45. Wheeler, Beau field et al. v., 230, 274. Wheeler v. Burkitt, 220, 225, 292. Whelan v. Keeler, 264. Whishaw v. Gilmour et al., 168, 241. White v. Atkins, 106. White et al., The Queen v., 42. White v. The Dsedalus, 160, 301, 319. White v. Daly, 255. White v. Industry Village andRawdon Railroad Company, 255. Whitefield et al. v. Hamilton et al., 184. Whiteford, Blanchard and, 42. Whiteford, Macfarlane and, 310, 311. Whitfield, Turner et al. v., 150. Whitlock et al., Harwood et ux. and, 265. Whitby v. Roiirke, 54. Whitney v. Badeaux, 232. Whitney v. Brewster, 1, 89. Whitney, Brooks and, 135, 307. Whitney v. Burke, 251. Whitney v. Clarke, 118. Whitney v. Craig, 244, 307. Whitney v. Dansereau, 79, 93. X1VHI TABLE OF CASES- Whitney v. Dinning et al., 27. Whitney, Johnston if ,,.72, 169. Whitney, Powers v., 288. Whitty, Jones v., 251. Whyddon, Beacon Fire and Life Assu- rance Company, 225. Whyte and Nye, 169. Wilcox et ux. v. Wilcox, 108. Wilkinson et al., Price v., 296. Willett, Ash et al. v., 196. Willeys et al., Mure et al. v.,. 70. Williams v. Arthur et al., 288. Williams et al., Forsyth et al. v., 173. Willis et al. v. Pierce, 72. Wilson and Atkinson, 141. Wilson, Bankier v., 58. Wilson, Bell v., 178. Wilson, Benjamin et al. v., 50, 54,264. Wilson, Borne v., 216. Wilson v. Brown, 298. Wilson, Brush v., 24, 119, 124, 264. Wilson, Clarke et al. v., 131. Wilson, Duncan and, 140, 141. Wilson, Hogan and, 180. Wilson et al., Holland and, 227. Wilson v. Kerr, 162. Wilson, Mann v., 195. Wilson v. Norris, 12. Wilson v. Morris and Bavaria, 84, 93. Wilson v. Pariseau, 135, 208, 291, 3.05. Wilson v. Perry and Perry, 1 14. Wilson v. Kay, 51. Wilson v. Beid, 51. Wilson v. The State Ins. Co., 157, 159, 169. Wilson, Stevenson v., 94. Wilson ajid, Wilson, 73.. Wing v. Wing, 240. Winscales, The, 329. Withallv. Ellis,. 149. Withall v.Ruston et al., 248. Withall v. Yquug et al., 34, 313. Wood, Exp., 288. Wood and Gates et al., 274. Wood, and Hearn, 199. Wood, Mayor, &©., of the, City of Montreal, and, 47, Wood v. McLennan, 89. Wood et al. V. Shaw, 246. Woodbury et al., Garth v., 1 13, 1 15,203. Woodbury, Seymour v., 14. Woodhouse and Exp. Hogue, 80, Woodington v. Taylor, 78. Woodman v. Letourneau? 103, 270., Woods et al., Ryan et al. v., 297. Woolley, Gagnon v., 289. Worden, Addams and,. 163. Worden, Ballantyne et al. v., 77, Workman, Barrette and, 32. Worrall, Macfarlane v., 223. Wright, Hagan and,. 35. Wright, Hullet v., 174. Wright et al., Seymour et al. v., 13, 248, 249. Wright, Smith v., 329. Wrigley, Castle v., 339. Wrigleyv. Tucker, 111, 161,339. Wurtele v. Arcand, 320. Wurtele, Bagg et al. v., 35. Wurtele and Bishop of Quebec, 22.. Wurtele, Exp., 63. Wurtele et at. v. Boswell, 35, Wurtele et al. v. Henry, 33. Wurtele, Lampson and, 21, 24. Wurtele, Malo v., 319. Wurtele et al. v. Montminy,, 145. Wurtele v. Verrault ;l 216. Wurtele. v. Price, 273. Wyman and Eadon, 185. Yon v. O'Connor, 208. Young et al., Baker v., 97, 132. Young et al. v. Commissioners of Public Works, 29. Young, Jones et al. v., 90. Young v. Lemieux et al., 1 84. Young et al., Meiklejohn. v., 27. Young et al., Withall v., 34, 313. Young, Trustees of the Dissentient School of St. Henri v., 286. Yule et al., Attorney General' v. y 83. Yule,* Brawaaing v., 195. Zeigler v. McMahon, 278.. # Note. — In one report written Gale, ABBREVIATIONS. C. S. C stands for Consolidated Statutes of Canada. C. S. L. C. " " " " for Lower Canada. P. Pre. du Con. Sup. stands for Perrault's Pr6cedents du Conseil Superieur. P. Pre. de la Prevoste " " " " de la Prevoste. P. R. stands for Pyke's Reports-. S. R. a (t Stuart's Reports. Rev. de Leg., u it Revue de Legislation. L. R. tt tt Law Reporter. L. C. R. it ii Lower Canada Reports. L. C. J. « it " " Jurist. C. C. ii it Circuit Court. S. C. a it Superior " Q. B. ii ii Queen's Bench. V. A. C. a ii Vice-Admiralty Court. C. Cr. Ap. u tt Court of Criminal Appeals; C. C. P. (( ii Court of Commou Pleas. P. C. it ii Privy Council. U. C. ii it Upper Canada. INDEX TO LOWER CANADA LAW REPORTS. Absence : — Vide Absentee. " : — " Prescription. Absentee : — 1. The only" mode of impleading an absentee is by calling him in by advertisement under the provisions of the 94th section of the Judicature Act, 12 Vic. c. 38. [Con. St. L. C. cap. 83, sect. 61.] Whitney vs. Brewster, S. C, 3 L. C. R.. p. 431. • 2. Absent defendants, who have had no domicile in Lower Canada, must possess real or personal property within the district where the suit is instituted to give jurisdiction' to the Court ; [Con. St. L. C, cap. 83, sect. 61,] and property of the defendants situated in the district of Quebec, and held by A, resident within the district of Montreal, is not property of the defendants within the district of Montreal. Frothingham et al. vs. The Brockville and Ottawa Railway Company, and Binkinson et al., S. C, 3 L. C. J., p. 252. 3. The curator to the vacant estate of an absentee cannot be impleaded, in his quality of curator for debts due by the absentee. Whitney vs. Brewster, S. C, 3 L. C. R., p. 431. 4. But an action to account lies against the curator to an absentee at the instance of any of the creditors, he being the mandataire of all the creditors. In such cases it is not necessary to call in the absentee. Murphy vs. Knapp et al., S. C. 4 L. C. R., p. 94. And the curator to the estate of an absentee who contests and defends is personally liable for the costs of the plaintiffs action. Whitney vs. Brewster, S. C, 4 L. C. J., p. 298. 5. Until recently it was held that where a defendant has left the Province after action brought and has no domicile therein, it is unnecessary to serve him with a Writ of Saisie- Arrfit after judgment. Mettayer vs. McGarvey, S. C. ? 6 L. C. R., p. 148.f Also, Jones vs. Saumiir dit Mars Sf Leroux, * Unless defendant be in U. C, Con. St. L. C, cap. 83, sect. 63. But this does not exclude service by advertisement as previously. lb. s. s. 4. f Mr. Justice Mondelet. expressed a doubt as to the propriety of the decision, but declined to enter a formal dissent. In the latter case of Jones vs. Satomur, he dissented, the Court being : composed as m the previous case. And Mr. Berthelol, Asst. J udge, gave the judgment in the last case, coinciding with the opinion of Mr. J ustiee. Mondelet. This latter opinion seems not to have suffered any great difficulty in France, for (Juyot, Repertoire, Vbo. Baisie- Arret, says : " Larsatie la saisie-arrU est fake, et que le creancier v'eut en poursuivre Peffet, il doit la /aire denoncer au deoiieur." In a note he adds the form of such significa- tion. Vide also Bioehe, Diet. Vbo. Saisie-ArrSt, No. 82. The argument which seems to have weighed with the Court, in the first two cases, is that the defendants were absent from the Province. This of course does not alter the question'; if the' defendant has a right to notification, he has it whether he be absent or present. Again, it is not conclusive to say that it is an execution, arid therefore that the defendant has no right to be notified. Still less 1 2 ABStoACC T. S., S. C, 2 L. C. J., p. 60. But in a more recent case,, it was held that where a defendant has left the Province after judgment rendered against him, and has no domicile therein, it is necessary that a Writ of Saisie Arrtt should be served upon him. [Con. St. L. C. cap. 83, sect. 58.] Hogan vs. Gordon Sf The Bank of Montreal, T. S., S. C, 10 L. C. R.,p. 21. . 6. Where the defendant has left the district of Montreal since the service of the original process, a Writ of Saisie-Arrit after judgment may be legally served upon a clerk of the Circuit Court at Montreal. Kearney vs. McHale Sf Pariseault, C. C, 7 L. C. J., p. 227. 7. A rule to condemn the Secretary-Treasurer of a Muni- cipality, who has refused to comply with an Interlocutory Judgment, commanding him to render an account, to pay the balance established and interest at the rate of 12 per centum, and this par corps, may be served at the Prothono- tary's office, if since the rendering of the said interlocutory judgment, defendant have left the Province. La Corporation de Chambly vs. Loupret, S. C, 4 L. C. J., p. 125. [Con. St. L. C, cap. 83, sect. 64.] " : — Vide Action en reddition de compte. " : — " Assessments. Acceptance :— 1. For the validity of an obligation and hypdtheque it is not necessary that the creditor should be present ; nor that the deed should be accepted by him or by any one in his name. Ryan and Halpin^Q. B., 6 L. C. B., p. 61. 2. The signification made by a Notary of a transfer, under the 27th section of chap. 73, C. Sts. L. C. is a sufficient ratification by the assignee who was not present at the passing of the deed of transfer. Perrault Sf al. and The Ontario Bank, Q. B., 7 L. C. J., p. 3 13. 3. A donation may be legally and rightfully revoked before acceptance. Lalonde vs. Martin, S. C, 6 L. C. R., p. 51. " : — Vide Action en reddition de compte. Accession : — Accession (by alluvial deposit) to a lot of land situate upon the bank of the river St. Lawrence, belongs to the riparian proprietor. Newton Sf al. vs. Roi, 3 Rev. de Leg., p. 93. Account : — Vide Action en reddition de compte. " Res judicata. " Ship. " Tutor. Accountant : — Vide Expertise. Accroissement : — 1. Accroissement takes place in the donation of a usufruit, even by acte entre vifs, if such deed, by its compo- sition, and by its clear expression, create a substitution. reciproque ; and the substitution created by a donation and so is it simply to be told that the Court " envisage la saisie-arrit comme une execution.?' The fact is, it just differs from a saisie-execuiion. in the essential point of being a seizure in the hands of a third party, and without a signification to defendant his rights might be com- promised without his having an opportunity of defending them. Bioche loc. cit. No. 4. And it is for this reason that he should be summoned, a reason based on broad considerations of equity, entirely foreign to any analogy that may exist between a saisie-arrel and a sqisie- exlcution. The practice of not denouncing the Sa. Ar. to defendant was probably due to the Act 4 Wm, 4, c. 4, sect. 3, which takes no notice of him. ACCtoACT 3 ACCROISSEMENT *. — by a will, are regulated by the samp rules of law. Joseph vs. Castonguay Sf al., 3 L. C. J. p. 141. 2. In a legacy of a universality of goods made in favor of a husband and wife " pour appartenir (les dits Mens) a la communaute de biens qui regne entr'eux et Stre consideres comme conquets d'tceUe" accroissement takes place in favor of the surviving legatee, for the share of the predeceased, if the predecease of the other legatee has taken place daring the life of the testator. Dupuy vs. Surprenant &• al., S. C, 4 L. C. J. p. 128. Acte d'heritier: 1. Persons who have made acle dlieritiers of their father, cannot afterwards renounce the succession and claim the part of the customary dower created by their father. Filion Sf al. vs. DeBeaujeu, S. C, 5 L. C. J. p. 128. 2. If the heir take a sum of money belonging to the estate laying claim to it in payment of a debt, it is not an acte d'heritier. Dewar vs. Orr and Fisher, S. C, L. R., p. 87. 3. When option is equivalent to renunciation. Lefebvre vs. Demers. S. C, L. R„ p. 56. Vide Bissonnette and Bissonnette, Q. B., L. R., p. 61. Acte en brevet: — Vide Hypotheque. Acte sous seing priv£: — An agreement in writing sous seing prive is not null because it is not made in duplicate. Shaw vs. McConnell, S. C, 4 L. C. R. p. 176. Action: — Cause of action — where arose. " : — Vide Jurisdiction. " : — En declaration de paternite: — 1. Action en declaration de paternite though coupled with a demand for damages is not susceptible of trial by jury. Clarice vs. McGrath, S. C, 1 L. C. J. p. 5. [Con. St. L. C. cap. 83,- sect. 26.] Vide McElwee vs. Darling, S. C, L. R., p. 8. 2. Where the plaintiff's wife was delivered of a child five months after marriage, the husband has no action en decla- ration de paternite against a defendant to have him declared to be the father of the child. Lamirande Sf ux. vs. Dupids, S. C„ L. R., p. 58. " : — En destitution de tutelle: — A tutor must be superseded in the manner directed in the Statute 41 Geo. Ill, c. 7 sect. 18, [Con. St. L. C. cap. 86, sect. 4] ; and an appeal is the proper remedy if the appointment of the tutor has not been, regularly made. The action en destitution lies for subsequent misconduct in the tutor. Darvault vs. Fournier, 3 Rev. de Leg. p. 365. But the action en destitution de tutelle cannot be instituted by one who is no way of kin to the minor. Ex parte O'Meara vs. McCteverty, S. C, 1 L. C. J. p. 195. Unless the minor has no kin or relative in Canada. Dooley vs. Wardley Sf al., S. C, 3 L. C. J. p, 72. " : — En garantie : — 1. When an action en garantie is the result of an application for ratification of title, and the Writ has been sued out under the same number as the original pro ceeding, and as it were in that cause, it is not necessary to produce in the action, en garantie, either a copy of the title deed or copies of any portion of the record in such original procedure. Ex parte Judah Sf Juduh, plaintifFera garantie, and Rolland, defendant ew garantie, S. C, 1 L. C. J. p. 194. 4 ACT Action : — 2. In the Superior Court it was held, that the action en garantie does not lie by vendor against vendee, to compel the latter to pay certain debts which he had undertaken, but neglected to pay, and in consequence whereof the vendor has been sued for the recovery of such debts. Gauthier et al., 1. Darche, S. C. 1 L. C. J. p. 42. But this case was reversed in Q. B. ib. p. 29 1 ; where it was held that such action does lie. 3. But Corporators sued in respect of their Corporation debts, as if they were co-partners, cannot call in their co- corporators in an action en garantie, to indemnify them against their proportionate share of loss. Howard et al., vs. Childs et al., and Childs et al., plaintiffs en garantie vs. Chapman et al., defendants en garantie, S. C, 1 L. C. J., p. 160, confirmed in Q. B., (Court equally divided). 4. An Action en garantie simple will lie by a proprietor for damages caused to his tenant, by a third party by reason of the demolition of a mitoyen wall. Delvechio vs. Joseph, S. C. 3 L. C.'J. p. 226. " : — Vide Ratification of Title. " : — Enpartage: — 1. In an action by the heirs, of the wife commune en Mens against their father, praying to be declared proprietors of one half of a farm belonging to the com- munaute, it is necessary to specify which half, if a partition has taken place, and if not to pray for such partition by the declaration. Lalonde vs. Lalonde, S. C, 5 L. C R., p. 97. 2. An action by the heirs of a deceased wife against the husband for a specific sum as proceeds of communaute will be dismissed on demurrer. The action should be enpartage. Dupuis vs. Diipuis, S. C, 6 L. C. R.,p. 475. 3. And a petitory action will not lie at the suit of one proprietor for a portion of the property, the proper proceeding being by partage. McAdam vs. Kingsbury, S. C, 1 L. C. J., p. 287. Also, Gauthier v. Glodue, Q. B., 7 L. C. J., p. 99. 4. The transmission of property bequeathed to two children, subject to a gradual substitution, in favor of their descendants, is divided by line and not by head. Dumont v. Dumont, S. C, 7 L. C. J., p. 12. 5. And when the substitution is open in favor of one of those called, before it is open for the others, he may imme- diately claim his share, lb. " : — En reddition de compte : — 1. An action to account will not lie against a Secretary-Treasurer who has rendered an account and received' a discharge. If there be error in such account, the remedy is an action en reformation de compte. The School Commissioners of Chambly vs. Hickey, S. C, 1. L. C. J., p. 189. Also in another case of The School Commis- sioners of the Parish of St. Michel de Vaudreuil vs. Bastien, S. C, 4 L. C. J., p. 123. And so also where any agent has rendered an account to his principal, which account has been received. Cummins vs. Taylor, S. C, 4 L. C. J., p. 304. _ 2. It is otherwise if there be fraud, ( The School Commis- sioners vs. Bastien,) for then the account is null. Motz vs. Moreau, S. C, 5 L. C. R.,p. 433. And this last mentioned AC T 5 Action : — case having gone to the Q. B., although the judgment was ; reversed, this portion does not appear to have been dis- puted. 7 L. C. R., p. 147. The account is also null, ipso' jure, if it be rendered by a tutor to a minor, on his coming of age, without vouchers, notwithstanding that the account so rendered has been accepted.'' Ducondu vs. Bourgeois- S. C, 2 L. C. J., p. 104. But an incorrect account will not be declared null, if it has become the basis of subsequent transactions between the parties, when the minors were of age, and when they were aware of the errors in the inven- tory or account. Motz vs. Moreau, P. C, 10 L. C. R., p. 84. 3. A tutor sued in an action to account, may plead that he has rendered an account before the bringing of the action, renew this account in Court, and conclude that the said, account may be declared good and valid, and that plaintiff may be condemned to costs. Trudelle vs. Roy, S. C, 4 L. C. R,, p. 222. And in an action to account where defendant pleads that he had previously accounted, and filed with his pleas copies of his accounts alleged to have been previously rendered, and the issues were so joined, the plaintiff cannot file deb its de compte until the said issues shall have been previously decided, and that the debats de compte filed by the plaintiff may be rejected by motion on the part of the detent dant to that effect. Camming vs. Taylor, S. C, 4 L. C. J., p. 304. 4. It is not competent for a defendant, in an action to account, to plead that he acknowledges himself bound to render an account, by which he acknowledges to owe a certain balance for which he confesses judgment ; but the Court pending the action will not order the defendant to pay to the plaintiff the balance acknowledged to be due to him. Aubin vs. Lislois, 8. C, 4 L C. B.,p. 225. 5. An interlocutory judgment adopting without opposi- tion the account of a succession, prepared by its order, passes in remjudicatam, and it is not competent to the representa- tives of a minor, who was legally a party to ihe suit, to revise the proceedings, and contest any particular item of the account. The Court may moreover reclify any error of calculation. Plenderleaih et al., vs. G-Ulii-ray, S. R., p. 470. 6. An action to account lies against, a curator to an absen- tee at the instance of any of the creditors, he being the mandataire of all the creditors. In such a case it is not necessary to call in the absentee by advertisement ; service on the curator is sufficient. Murphy vs. Knapp et al., S. C, 4 L. C. R., p 94. 7. One co partner cannot, after the dissolution of the firm, sue another co-partner to render an account without himself offering and tendering an account. Pepin vs. Christin dit St. Amour, S. C, 3 L. C. .)., p. 1 19. But when in a decla- ration in an action pro socio, it is nllepvd that the plaintiffs have rendered an annual account of the portion of the part- nership business under their control to the defendants, it is not necessary to offer and file with such declaration, an account of such portion of the partnership business ; but it will be necessary to the maintenance of the action, to prove ACT Action : — the allegation that an account has been rendered by the plaintiffs to the defendants. McDonald . et al., vs. Miller et .R. But if an alien died without issue, his lands belonged to the Crown ; and if he left some children born in Canada, and others born abroad, the former excluded the Crown, and all took alike as though they were natural born subjects. But if an alien had a son, who was also an alien, the children of the latter inherit from the grandfather to the exclusion of their father, lb., 605. The question as to who is an alien is to be decided by the laws of England ; but when the condition of the party is once established, the consequences which result therefrom are to be determined by the laws of Canada. lb., 605. 2. In the case of Corse Sf'ai. vs. Corse, S. C, 4 L. C. R., p. 310, it was held: That under the Act of 12 Vic. c. 197, sect. 12, [Con. St. C. cap. 8, sect. 9,] which enacts that every alien shall have the same capacity to take, recover and transmit " real estate " in all parts of this Province, as natural born or naturalized subjects, the alien is placed in the same position as the natural born subject, and can claim conjointly with a naturalized heir, both real and personal property. And that moveable property although not men- tioned in the 12th section of the Act, must be taken to be included in the larger term real estate. Alienation: — Vide Dower. Alimentary allowance: — 1. By will a father left certain property to his son greve de substitution, in which will was the follow- ing clause : " Je defends expressement que ces biens soient en. aucune maniere engages, alienes, hypotheques, no?i plus que la jouissance, interet ou usufruit d'iceux quHls (les greves) retire- ront pour leur pension et subsistence et pour la subsistence et P education de leur famille, sous peine de nullite de tous actes quhls feront contraires d man intention, poui- que ces biens retournent d leurs enfants, etc." The son was separated de corps from his wife, and she obtained judgment against him for an allowance of j650 a year as sustenance. In execution of this judgment she seized the property in question ; and it was held, that the property was only protected to the extent necessary to provide aliments for the defendant and his children. Dame M, L. E. F. dite M. vs. L. E. C. dit C, 1 Rev. de L6g. p. 81. 2. The offer of a son to take his father to live with him will not defeat an action for an alimentary pension. Alio vs. Alio Sf al., S. C, 1 L. R., p. 11. Unless the son is. in. indigent circumstances. Vallieres vs. Vattiires, 3 Rev. de Leg. p. 83. V *-There was also a case of Gobeitte vs. Gobeitte 4- ai.,S. C. M. 27th September, 1853, decided in the same sense ; and in giving judgment Mr. justice Vanfelson remarked that the admission or rejection of this condition was discretionary with the Court. ' 2- 18 A L I to A M E Alimentary allowance : — 3. Where a petition for an alimentary allowance is pre- sented during the pendency of an action to account, against an executor, the Court will grant a certain moderate sum for the relief of the immediate wants of the legatees, if in in- digent circumstances, in consideration that a great space of time has elapsed since the death of the testator, for instance ten years, and moreover that the legacies were for aliments. Hart Sf al. vs. Molson Sf al., S. C, 4 L. C. R., p. 127. 4. The children bound to furnish an alimentary pension to their parents are bound jointly and severally, and the parents may sue any of them or any' one of them they choose. Lauzon vs. Connoissant Sj-al., C. <>., 5 L. C. J., p. 99. 5. An alimentary pension created as consideration of a deed of donation in the following terms — " de nourrir le do- nateur d son pot etfeu, de le chauffer et eclairer," does not run in arrears. Chenier vs. Coutlee §• al., S. C, 7 L. C. J., p. 291. « : — Vide Capias ad respondendum. Alluvion: — Vide Accession. Ameliorations : — Vide Improvements. Amendment:— Vide Pleading and Practice. Ameublissement : — 1. The donation by an ascendant of one of the conjoints, by marriage contract, of an immoveable property, destined to enter into the community, is an ameublissement within the meaning of the law. Such an ameublissement has no effect except as regards the community and between the conjoints themselves. The immoveable property so given preserves its quality of propre up to the time of portage. So the other conjoint being dead, and the children born of the marriage alterwards dying without issue and before partage, the ameublissement has no longer any effect, and the collateral heirs of the conjoint, in whose favor it was stipulated, can claim no rights in such immoveable property. Charlebois and Heariley, Q. B., 2 L. C. R., p. 213. 2. A covenant in a marriage contract that " the parties take one another with the property and rights to each of them respectively belonging, and such as may thereafter accrue, of what nature soever, which said property, move- able or immoveable, shall enter into the community " is a covenant of ameublissement of all the property belonging to the parties, notwithstanding a subsequent clause of realisa- tion ; and consequently the customary dower cannot be claimed out of the husband's propres. Moreau vs. Mathews, S. C, 5 L. C. R., p. 325. And in Toussaint etal.,vs. Leblanc, S. C, 1 L. C. R.,p. 25, it was also held, that the stipulation of ameublissement, in a contract of marriage, excludes the cus- tomary dower on the immeubles ameublis. 3. In the case of a marriage contract with a covenant of ameublissement, and a clause of realisation in the event of renunciation of the community by the wife, the wife separee de biens, by judgment, cannot claim by way of reprise the- enjoyment of the proceeds of the sale of an immoveable pro- perty given by the mother to her adopted daughter and her husband during the community, under the condition that such property shall not be subiect to seizure, but should be A M E to A P P 19 Ameublissement : — reserved to supply aliments. And the property so given does nol become a propre of the wife. And the report of a praticien awarding the same to the wife, and the judgment homologating the same, are not binding against those not parties to the proceedings. Jarry and The Trust and Loan Company, Q. B., 11 L. C. R., p. 7. " : — Vide Douaire. Appeal: — To Superior Court. Bond. — 1. Under the 12 Vic, c. 38, sec. 54, [Rep. 20 Vic. c. 44, sect. 59.] the real estate of the surety, in an appeal from the Circuit Court, must be described. Hitchcock nnd Monnette, S. C, 6 L. C. R., p. 150; and so in Hilaire dit Bonaventure and Lizctte, S. C. 6 L. C. R., p. 150. But security in such cases is validly given by two sureties justifying on real estate, without describing it. Lynch and Blanchet, S. C, 6 L. C. R., p. 149. 2. An appeal bond is insufficient if the surety has not sworn that the immoveable property which he has mortgaged belongs to him. Stuart and Scott Sj- al., S. C, 1 L. C. R. f p. 218.* 3. The omission by an appellant to annex copy of an appeal bond, certified by the officer in whose custody it is kept of record, to his petition in appeal, in compliance with the pro- visions of the 12 Vic. c. 38, sect. 55, [Rep. by 20 Vic. c. 44, sect. 59,] is fatal. The Court will not permit such appellant to supply the deficiency by filing a copy of the bail bond. Germain and Vezina, S. C. 2 L. C. R., p. 299. 4. In an action against sureties on a bail bond in appeal, the question as to the necessity of discussing the property of the principal debtor ought not to be raised by a defense au fonds en droit, but must be so raised by an exception de dis- cussion. Thorn vs. McLennan et al., S. C, 9 L. C. R., p. 403. 5. The sureties in an appeal are liable for the costs of an appeal where the judgment of the Court below rendered in an hypothecary action is affirmed, although a delaissernent was made by the defendants before signification of the judg- ment rendered in the Court below, and although no absolute judgment was given in the Court below for costs, but only a judgment condemning the defendants to pay the debt and costs, unless they preferred to quit and abandon the lot hypothecated. Fishei vs. Provencher et al., C. C, 13, L. C. R.,p 160. « : — Petition: — 1. An Appeal from the Circuit Court will be dismissed, when the petition in appeal contains no special reasons. [Con. St. L. C, cap. 77, sect. 44.] MailU and Chapleau, S. C, 6 L. C. R., p. 476. 2. The transmission of the record from the Circuit Court to the Superior Court, at a period subsequent to the day when the allowing of the appeal should be prayed for, is no reason for dismissing the appeal. [Con. St. L. C, cap. 77, sect. 45.] Hilaire dit Bonaventure and Lisotte, S. C, 6 L. C. R., p. 150, Failing to proceed, lmbault fy Bourque, S. C, L. R., p. 75/ #'Kep. But see for formalities of giving security in Appeal, Con. St. L. C. cap. Tl, sects. 40 and 41. 2» 20 A P. P Appeal: — Evidence: — If on an appeal from the Circuit Court the evidence appear doubtful, the Superior Court will npt disturb the judgment. Poutre and Chapdelaine, S. C, 6 L. C. R,., p. 488. " : — Interlocutory Judgment: — 1. An appeal will lie from a judg- ment of the Circuit Court dismissing a defense en droit McGinn and Brawders, S. C, 1 L. C. J., p. 176.* 2. A judgment which decides all the matters in litigation between the parties, with the exception of what is claimed under a plea of compensation, and orders, avant faire droit on such plea, that the amount of compensation be established by experts, and reserves the question of costs, is not a defini- tive judgment entitling the party to sue out a writ of appeal de piano, and such writ will be dismissed on motion. Wardle and Bethune, Q. B., 6 L. C. J., p. 220. And in the same case it was held that where an appeal had been sued out de piano by error, and had been dismissed on motion for that reason, a motion for leave to appeal will not be too late although not made at the next term after the rendering of the judgment appealed from. Q; B., 6 L. C. J., p. 221. 3. When application has been made for a Writ of Appeal,' from an interlocutory judgment, and, in consequence of an equal division of the Court as to whether or not there was a quorum, the motion has been lodged (as directed by the Judicature Act of 1857), [Ccn. St. L. C, cap. 77, sect. 20, s. s. 3,] with the clerk of the Court, proceedings in the Court below will be suspended until judgment on such motion can be pronounced. Scott et al, vs. Scott et al., S. C, 3 L. C. J., p. 132. But this was revised in term and over- ruled, lb., p. 134. " : — Jurisdiction: — Tn a case wherein the judgment rendered in the Court below exceeded £15 currency, the plantiffsued out a Writ of Saisie-Arret en main tierce, and the appellants intervened, claiming to be collocated for a sum of £4 13s. 6d., and being dissatisfied with the judgment rendered on the proceedings in the saisie-arrSt, they appealed therefrom, and it was held that in such a case the demand of the appelant, not exceeding £ 15, they had no right to appeal. Russell et al., and Gravely, S. C, 2 L. C. R., p. 494.f " —To the Queen's Bench. Writ.— The 7th Rule of Practice of the Court of Queen's Bench, which prescribes that all writs shall be signed by the attorney suing out the appeal is directory, and on motion the attorney will be permitted to amend, even though the respondent have moved to dismiss the appeal, owing to the neglect of this formality. Ross and Scott, Q. B., 9 L. C. E.., p. 270. V. m/ra'MiscELLANEous, No. 2. •.—Bond — 1.' In appeals from the Circuit Court, the copy of the appeal bond to be served must be certified by the clerk of the court in whose office the bond is filed under the pro- visions of the 20th Vic, c. 44, s. 65, [Con. St. L. C, cap. 77, s, 44,] and not by the attorney of the* appellant, otherwise .*^ nl ^ ev3se ^^imardand Tawnsend, Q; B., 6 U C R d 147 (v infrfa it was SiMSrSJS T, eal 'T the Q ; B > the ^vy c^ilK'sttu^tyS aDDealffromrL, fn \'? 8Ut>h , app £ al " The same argument wduld hold go(5l as to appeals from Circuit Court formerly to Superior Court and how to the Q. B. • " p. 25l S6e ^^ and Chlgy ' Infra p - *$ Also > ■«%/«*»« a al. and .Leclair, et al., APP 21 Appeal : — the appeal will be dismissed. Pentland et al. and Drolet, Q. B.,9 L. C. R.,p. 42. 2. The filing of a copy, certified by the prothonotary, of a bond given before a judge, previous to the allowance of a writ of appeal, is sufficient proof of the execution of the bond and of the liability incurred by the sureties, without further evidence. Gosselin vs. Chapman, S. C, 6 L. C, R., p. 35. 3. A bond in appeal by Indians is valid, where it is established by affidavit, that they are in possession, accord- ing to the Indian customary law, of certain real estate situated and lying within the tract of land appropriated to the uses of the tribe to which they belong. Nianentsiasa and Akwirente et al., Q. B., 3 L. C. J., p. 316. 4. In appeal to the Q. B. from the Circuit Court, where the sureties sign the appeal bond, it Is not necessary that either should be declared to be a proprietor of real property of the value of .£50, over and above all incumbrances, and this is only necessary where but one surety signs the bond under the 20 Vic. c. 44, ss. 61 and 62, [Con. St. L. C, c. 77, ss. 40 and 41.] Hearn and Lampson, Q. B., 10 L. C. R., p. 400. 5. But where in such appeals the bond is only given by one surety, who declares he is the proprietor of real estate of the value of £50, over and above all incumbrances, the appeal will be rejected under the 20 Vic. c. 44, ss. 61 and 62, [Con. St. L. C, c. 77, ss. 40 and 41,] unless the bond contains a description of the property. Charest and Rompre, Q. B., 10 L. C. R., p. 431. 6. Ahappeal from a judgment of the Superior Court will be set aside for want of security, if the bond has been ex- ecuted before the issue of the writ. Burroughs and Simpson, 5 L. C.J. p. 20, and 11 L. C R. p. 72. 7. A motion to reject an appeal from the Circuit Court for insufficient security, made on the first day of the term is too late, if the appeal have been returned on the 1st day of the previous term. Mackay vs. Simpson, 5 L. C. J. p. 20. 8. In appeals from Circuit Court, affidavits setting forth that the property described in the appeal bond is not of the value of £50, will be received in support of a motion to dismiss the appeal for want of sufficient security, and the appeal will be dismissed on such motion, unless the appellant deposit the sum of £50, together with the sum of £5 to cover the costs of such motion. Bedard and The Corporation of the Parish of St. Charles Borromee, Q. B., 10 L. C. R, p. 429. 9. A bail bond on an appeal from Circuit Court is bad if it be signed by only one surety and does not contain any description of real estate. And the motion is not too late although a term had elapsed since the appearance of res- pondent, if the return of the Clerk of Circuit Court be irregular. Bedudet and Proctor, Q. B., 13 L. C. R. p. 450. 10. If the defendant becomes appelant, he is obliged to give security for the debt as well as the costs. Lampson vs. Wurtele, 3 Rev. de Leg., p. 107. And in an hypothecary 22 APP Appeal : — action, security in appeal given merely for costs and damages, is insufficient, and will be rejected. Metrisse dit Sans/agon et al. and Brault, Q. B., 2 L. C. J., p. 303. « -.—Jurisdiction.— 1. A judgment of the Superior Court refusing to grant a writ of mandamus, upon a petition complaining that the Bi.-h.op of Quebec has refused to read the funeral service over the dead body of an individual, is a final judg- ment, and may be appealed from, according to the provisions of the 12 Vic. c. 41, s. 20, [Con. St. L. C. c. 88, s. 17.] Wurtele and The Lord Bishop of Quebec, Q. B., 2 L. C. IL p. 65. 2. An appeal will lie from an interlocutory judgment of the judge of the Superior Court, rejecting the summary petition of a defendant, arrested by capias, to be discharged in the terms of the 12 Vic. c. 42, s. 2, [Con. St. L. C. c. 83, s. 53.] Blanjcensee and Sharpley, Q. B., 3 L. C. J., p. 292. 3. And an appeal will be allowed from an interlocutor rejecting the motion of the defendant to quash a capias under which he has been arrested and is out on bail. Hoffnung and Porter, Q. B., 7 L. C. J. p. 301. And so also from a judgment ordering the discharge of the prisoner. Gugy and Furgusson, Q. B., 12 L. C. R. p. 254. 4. A judgment quashing a writ of capias is an interlocutory judgment which cannot be appealed from de piano. Berry and May, Q. B., 10 L. C. R. p. 195. 5. The transcript is conclusive evidence of the nature of the proceedings and the Court will not go beyond to consider the effects of a subsequent judgment not comprised or referred to therein, lb. 6. An appeal lies from an order of the Superior Court discharging an inscription for hearing in vacation, on the merits of an exception a la forme, without the consent in writing of the parties for such hearing out of term. Dease and Taylor, Q. B., 2. L. C. R. p. 227. 7. A judgment of the Superior Court determining and de- fining the facts to be inquired into by the jury, is a judgment from which an appeal will lie to the Court of Queen's Bench. Arthur and The Montreal Assurance Company, Q. B., 6 L. C. R. p . 99. 8. A writ of appeal, and not a writ of error, will lie in the case of a jury trial when the grievance is not merely an error in a matter of law, and if there is no plea deter- mined by the verdict of the jury, but a final adjudication upon law aucL fact. [Con. St. L. C. c. 77, s. 24.] Casey and GoldsmiMet al, Q. B., 2 L. C. R. p. 212. 9. The Court of Appeals may hear an objection not argued in the Court of original jurisdiction. Scott and Phmnix Assurance Company, S. R. p. 354. 10. An action in the Circuit Court for less than £25 becomes appealable if defendant sets up title to real estate in his pleas. 1 1 . An appeal lies to the Queen's Bench from judgments in Circuit Court rendered in vacation under the Lessor and Lessees Act of 1855. [Con. St. L. C. c. 40, s. 15.] Gould and Sweet, Q. B., 4 L. C. J. p. 18. APP 23 Appeal : — 12. No appeal lies to the Queen's Bench under the 12 Vic. c. 38, ss. 53 [Rep. 20 Vic. c. 44, s. 59] and 95, ; 18 Vic. c. 108, s. 15 ; and the 20 Vic. c. 44, s. 60, in an action of ejectment instituted in the Circuit Court, whereof the annual rent is under £25. [Con. St. L. C. c. 40, s. 15, and' c. 77, s. 39,] Hearn and Lampson, Q. B., 10 L. C. R., p. 400.* 13. There is no appeal from a judgment on an exception, tending to obtain the suspension of proceedings until a decision is rendered in another cause between the same parties on similar matters. Donegani and Quesnel, Q. B., 1 L. C. R. p. 111. 14. A party is not .entitled to an appeal from an interlo- cutory judgment rejecting an exception a la forme, upon the ground of its having been filed too late, if the grounds of such exception a la forme might have been made the grounds of a demurrer, filed in the same cause, and if copy of the demurrer be not produced; and this because the Court of Appeals cannot determine if the grievance complained of be irremediable or not, the demurrer not being before the Court. [Con. St. L. C. c. 77, s. 26.] Moreau and Motz, Q. B., 3 L. C. R. p. 53. 1 5. No appeal from the Superior Court lies on a demand not exceeding £10 sterling, or £24< 6s. 8d. currency. [Con. St. L. C. c. 77, s. 23.] Rheaume and Fortier, Q. B., 6 L. C. R., p. 184. 16. There is no appeal from a judgment rendered on a writ of certiorari. [Con. St. L. C. c. 88, s. 17.] 'Bazin et al. vs. Crevier et al., 3 Rev. de Leg. p. 401. And so also it was held in the Q. B., in Boston et al. and Lelievre et al. Seig. Commrs. and The Atty. Genl. 6 Sept. 1864, that there was no appeal to the Q. B. from a judgment on a writ of certiorari, and on motion the appeal was rejected. 17. An appeal does not lie to the Queen's Bench from a judgment of the Superior Court exercising the jurisdiction conferred upon the latter by 12 Vic. c. 41. f Bristow and Holland, Q. B., 4 L. C. J., p. 283. " : — Petition. — 1. In cases of appeal from the Circuit Court the original petition in appeal, notice, &c, must be filed in the office of the clerk of the Circuit Court within twenty-five days of the rendering of the judgment appealed from, other- wise the appeal will he dismissed on motion, under the pro- visions of the 20 Vic. c. 44, s. 66, [Con. St. L. C, c. 77, s. 45.] McGillis Sf al. and Pearce . C. R., p. 500. 7. On cause shewn the Court will give delay to furnish security on an appeal from Circuit Court. Berriau and McCorJcill, Q. B., 13 L. C. R., p. 480.' 8. Where the parties to a suit have treated it as not appealable although appealable, the Court will not disturb the judgment. Osgood and Cullen, Q. B., 11 L. C. R., p. 282. And so where no evidence is taken in writing in the Court below, no appeal can be instituted. The Corpcfratian of St. Philippe and Lussier, Q. B., 13 L. C. R., p. 499. 9. There is no appeal from a judgment of the Circuit Court, on an appeal from the judgment of Justices of the Peace homologating report of experts as to a cows aVeau, and under the '24 Vic. c. 30, there is no appeal to the Queen's Bench. Bruneau and Preiost cj- al., Q. B., 13 L. C. R., p. 498. 10. Execution cannot be issued upon a judgment rendered against four defendants, if one of them has instituted an appeal, and if such appeal be still pending. Brush vs. Wilson, S. C, 6 L. C. R., p. 39. 11. A factum, in appeal may be filed after the prescribed delay, when tendered at the time opposite party moves to lismiss appenl for want of it. Baivson and Belle, Q. B., 3 L. O. J., j). -25fi. 12. One appeal may be instituted from a judgment ren- dered by delimit by the prothonotary and from two opposi- tions to such judgment. Waggoner and Bicker &■ al., Q. Bs, 13 L. C. R., p. 102. " : — To the Privy Council. Bond. — 1. The respondents servecTa notice upon the attorney of the appellants, that they wowl'd put in security in appeal to the Privy Council, on Saturday, A PiP 25 Appeal : — the 18th of August, in the Judges' Chambers, in the Court House, security was not put in on this clay, but notice was given later on the Saturday, that security would be given in Chambers on the Monday. Security was put in on this day, not in Chambers, but at the Judge's house ; one of the sureties signed the bond in the forenoon, the other in the afternoon ; and it was held, on motion to set aside the bond for irregularity and want of sufficient notice, that the bond must remain, but allowing the parties moving to make such objections to the sufficiency of the security, as they might legally have made when such security was put in. Gibb et al., and the Beacon Fire and Life Assurance Company, Q. B., 10 L. C.R.,p.402. 2. And when notice was given on the 1 5th, that security in appeal would be put in on the 17th,' and another notice was given that the same security would be put in on the 18th, nevertheless security was given under the first notice, and the security put in in pursuance thereof, it was found irregular and insufficient, the first notice having been rendered of no effect by means of the second, and it was held that an action will not lie against the sureties on a bail-bond set aside in appeal for the causes above-mentioned. Smith vs. Egan Sf al., S. C, 10 L. C. II. , p. 238. 3. An Act of the Parliament of Great Britain declared that all laws passed by the Legislature of a Colony, should be valid and binding within the colony, and directed that the Colonial Court of Appeal should be subject to such appeal as it was previously to the passing of the Act, and also to such further and other provisions as might be made in that behalf, by any Act of the Colonial Legislature ; held, than an Act having been passed by the Colonial Legislature, limiting the right of appeal to causes in which the sum in dispute was not less than £500 sterling, a petition for leave to appeal, in a cause where the sum was of less amount, could not be received by the King in Council, although there was a special clause in the Colonial Act reserving the rights and prerogatives of the Crown. Cuvittier and Aylwin, S. R., p. 527 ; also, 2 Knapp's Rep., p. 72. But this decision was over-ruled in a case of' Marois and Allaire, P. C, 6 L. C. J., p. 85, in which it was held that the Privy Council could, in its discretion, allow an appeal in a case excluded by the statutes 34. Geo. III., cap. 6, s. 30, [C. Sts. L. C, c. 77, s. 52,] and 12 Vic, cap. 37, s. 19, [C. Sts. L. C, c. 77, s. 52. Also, Boswell and Kilborn Sf al., 12 Moore's P. C. Cases, p. 467. And the principal was also„udmitted in The Quebec Fire Assurance Company and Anderson et al., P. C, 7 L. C. J., p. 150, and 13 Moore's Rep., p. 477. But this is an indulgence, and it will not be granted unless there be .some important principle involved ; and if leave to appeal be granted on an ex parte application, the order may be after- wards discharged on the application of respondents, on shewing that the indulgence of an appeal should not be iaccorded. lb., 7 L. C. J., p. 151. 4. An appeal does not lie to Her Majesty in Her Privy Council from a judgment of the Court of Appeals, reversing 26 APP Appeal : — a judgment of the Court below, by which the appellant's action was dismissed on a defense en droit to the declaration. Simard and Townsend, Q. B., 6 L. C. R., p. 147. 5. The right of appeal to Her Majesty in Her Privy Council^ upon an opposition made by a defendant to the execution of a judgment, is settled by the nature and quality of the demand, and not by the matters set forth in the oppo- sition. Gugy and Gugy, Q. B., 1 L. C. R., p. 273. 6. By the appeal to Her Majesty in Council from the final judgment of the Court of Queen's Bench, the latter tribunal is dispossessed of the cause. And a decree of Her Majesty in Council, purely and simply reversing a judgment of the Court of Q. B., confirming the judgment appealed from, without indicating in what sense the judgment ought to have been.rendered, does not invest the Q. B. with jurisdiction, Which tribunal, unacquainted with the motives which have determined the Privy Council, is unable to render any judgment. The Montreal Assurance Company and McGil- livray, Q. B., 10 L. C. R., p. 385. 7. On appeal to Her Majesty in Her Privy Council, the court is not precluded from entertaining a petition to reserve leave to appeal, by the fact that leave to appeal was granted by a colonial court, under the authority of a colonial statute. Macfarlane et al., and Leclaire et al., P. C, 6 L. C. J., p. 170. 8. The right of appeal, when depending on the value of the matter in dispute, should be decided by the manner in which it affects the interests of the appellant, lb., and 12 L. C. R.,p. 154. 9. Application to dismiss an appeal to the Privy Council, on the ground of delay in prosecution, and no certificate being filed, pursuant to the 31st section of the Canada Judicature Act, refused, the rule allowing a year and a day for prosecuting an appeal, though usually adhered to, not being imperative upon the King in Council, and the respon- dents having no claim to complain of delay, after laying by themselves eight months without making any application. St. Louis and St. Louis, P. C, 1 Moore's Rep., p. 143. " : — From Courts of Vice- Admiralty. — 1. The appellate jurisdic- tion of the High Court of Admiralty from Courts of Vice- Admiralty, is by the 3rd and 4th Will. 4, c. 41, transferred to the Judicial Committee of the Privy Council, p. 5, S. V. A. R. 2. All appeals from decrees of the Vice-Admiralty Courts, are to be asserted withia fifteen days.ufter the date of the decree, which is to be done by the protor declaring the same in court, and a minute thereof is to be entered in the assig- ' nation-book ; and the party must also give bail within fifteen days' from the assertion of the appeal to answer the costs of such appeal, p. 44, ib. <• : — Tide Certiorari. Appearance: — 1. A plaintiff has no right to question the power or authority of an attorney to appear for a defendant not legally served with the writ and declaration, the return being of service at the last domicile of the defendant, and that APP to ARB 27 Appearance : defendant had left the Province, and had no domicile therein ; and such appearance being of record, no steps can be taken to call in the defendant by advertisement, or to proceed exparte. McKercher and Simpson, Q. B., 6 L. C. E.., p. 311, and so also in Whitney vs. Dinning et a!,., and Mulholland, S. C, 6 L.-C. J., p. 30. 2. Appearance in a cause need not be filed between the 10th day of July and the 31st day of August, [Con. St. L. C, cap. 83, sect. 79, s. s. 2,] inclusively ; but if filed in any action after the last mentioned day, default having been duly recorded in the interim, the party so appearing must pay the costs of taking off' the default. Bell vs. Leonard, S. C, 1 L. C. J., p. 17. Appendix: — 1. Commission of Vice- Admiral under the Great Seal of the High Court of Admiralty of England, to James Murray, Captain-General and Governor-in-Chief in and over the Province of Quebec, in America, dated 9th March, 1764, p. 370. S. V. A. R. 2. Commission under the Great Seal of the High Court of Admiralty of England, appointing Henry Black, Judge of the Vice- Admiralty Court for Lower Canada, dated 27th October, 1838, p. 376. 3. Commission under the Great Seal of Great Britain, for the trial of offences committed within the jurisdiction of the Admiralty of England, dated 30th October, 1841, p. 380. 4. Opinion of Judge Kerr, in the following cases: — The Camillus, p. 383. S. V. A. B. The Coldstream, p". 386. lb. 5. The several commissions in continuation of the above commission of vice-admiral down to the present time, with their respective dates, p. 390. 6. The several Judges of the Vice-Admiralty Court, since the cession of the country to the Crown of Great Britain, p. 391. lb. Apprentice : — The father of an apprentice misrepresenting the age of his son at the time of his indenture, is liable to the party to whom he binds him, if any damage be incurred by reason of the apprentice quitting his engagement when of age, and before the expiry of the term for which indenture was made. Rice vs. Coo, S. C, 1 L. C. J-, p. 10. Arbitration: — 1. On reference to three arbitres, or specifically to any two of them, an award by two is good, if the third has had due notice of the matters referred and of the several meetings, especially that in which the award is made ; and the award of two is valid, even should the third refuse his assent. Meiklejohn vs. Young et al., S. R., p. 43. 2. A party who has submitted a matter to arbitrators, cannot after the arbitrators have made theft award, call for the decision of the ordinary tribunals, without, in the first place, paying the penalty stipulated in the arbitration bond, unless the award be absolutely null. An award is not absolutely null although the witnesses examined have not been legally sworn. Tremblay vs. Treniblay, S. C, 3 L. C. R. p. 482. But the stipulation in a bond to pay a penalty is comminatory. Bouihillier vs. Turcot, S. C, 3 L. C. J., p. 50. 28 A R B Arbitration : — 3. An award of arbitrators in itself conclusive cannot be attacked by the verbal evidence of one -of the arbitrators. Joseph vs. Ostell, S. C, 1 L. C. J., p. 265.* Reversed in appeal, 12th Oct., 1857, vide 9 L. C. R., p. 440. 4. An award of arbitrators which does not embrace all the material points submitted, or which discloses excess of authority, will be set aside. Tate et al. vs. Janes et al. And E Contra— S. C, 1 L. C. J., p. 151. 5. And an award of arbitrators named by the Court which declares that they had " examined the proceedings of record in this cause, examined the witnesses of the parties under oath and deliberated," but without stating that they had notified the parties will be set aside on motion. Brown et al., vs. Smith el al., S. C, 6 L. C. J., p. 126. 6. And an award purporting to be made after notice to the parties, but which was in fact made without such notice will be set aside upon motion setting forth the want of notice, supported by affidavit. McCuUooh vs. McNevin, S. C, 6 L. C. J., p. 257. But the assessment of costs by arbi- trators, under the provisions of the Statutes 2 Will. IV, c, 58, and 13 & 14 Vic. c. 1 14, f does not vitiate the report. Tremblay and Champlain and St. Lawrence Railroad Com- pany, Q. B., 5 L. C. R., p. 219. And even when vested with the powers of amiahles compositeurs, arbitrators cannot adjudicate on the question of costs, unless specially referred to them ; and so much of their award as adjudicates with regard to costs will be set aside. McKenna vs. Tabb, C. C, 2 L. C. J., p. 190. 7. The report of arbitrators and amiahles compositeurs should be produced en minute. Rodier vs. Mercile, S. C, L. R., p. 57. And a notarial copy of an award of arbitrators, made under the provisions of the Statute 13 & 14 Vic. c. 1 14, % and a certificate of the notary that the arbitrators were sworn, is not legal evidence of any oath having been taken or award rendered, inasmuch as a public notary has no authority to receive and certify such oath and award. Roy vs The Champlain and St. Lawrence Railroad Company, S. C, 4 L. C. R., p. 189. But this decision was reversed in the Queen's Bench, vide 6 L. C. R. p. 277. Also in another case of Tremblay and Champlain aud St. Latvrence Railroad, Company,Q. B., 5 L. C. R., p. 219, it was held that in Lower Canada notaries have the power to receive the report of ar- bitrators and to give a certified copy of the swearing in of the arbitrators annexed thereto ; and that such power is specially recognized as belonging to them by the Statutes 2 Will. IV, c. 58, and 13 & 14 Vic. c. 114. 8. The declaration made by arbitrators in their report that they have been sworn is not evidence of the fact, and their report will be rejected if no certificate is produced to show * Having been interested in this case I have altered the holding which does not explain exactly the point of the judgment. It will be al once seen that it was not necessary for the Superior Court to decide the question generally, the only witness produced being one of the arbitrators. t These are the Acts incorporating the Champlain and St. Lawrence Railroad Company, % Act incorporating the Champlain and St. Lawrence Railroad Company. ARB to ARR 29 ARBITRATION : — that they have really been sworn. Jqseph vs. Ostell, S. C, 6 L. C. J., p. 40, and 11 L. C. R., p. 499. 9. A report of arbitrators will not be set aside on motion (supported by affidavit) to the effect thattheir award is not accompanied by satisfactory evidence that the parties or their witnesses were legally sworn, it appearing that the oath was administered to the parties and their witnesses by one of the arbitrators. Daly et al. vs. Cunningham, S. C, 6 L. C. J., p. 242. 10. A clause or condition in a policy of insurance that in case of any dispute between the parties, it shall be referred to arbitration, the court will not be ousted of its jurisdiction, nor will it compel the parties to submit to a reference in the progress of the suit. Sco t vs. The Phmnix Assurance Com- pany, S. R., p. 152. 11. The agent of the contractors for the construction of a railroad having agreed to a reference to arbitrators and amiables compositeurs, to settle the value of a piece of land required for the construction of the railroad, the question was raised as to whether the contractors themselves were authorized by the company to submit the matter to arbitra- tion, and if so whether they had transferred such power to the agent. In the Superior Court it was held that they had. Meredith, J., dissenting. — And in appeal this judgment was confirmed, the Court being equally divided. The Qyebep and Richmond Railroad Company and Quinn, Q. B., 6 L. C. R., pp. 129, 350, 366 & 395, also 12 Moore's P. C. cases, p. 232. 12. A merchant who, in compliance with instructions from the Commissioners of Public Works, purchases lands for theni under the 13 & 14 Vic. c. 13, is not a mere manda- tory, but is entitled to compensation for such services ; and he is entitled to have his claim therefor submitted to arbitra- tion under the 8th section of the Act, and a mandamus will issue to compel the commissioners to refer such claim to arbitration. [C»n. St. C, c. 28, ss. 49 and 51.'] Young et al. vs. The Commissioner of Public Works, S. C, 9 L. C. R., p. 43. " -.—Tide Agent. ". :— " Signification. Architect. — In an action by an architect for drawing plans, and specifications and superintending building, proof as to value of services cannot be made by adducing evidence as to cus- tom to pay a certain percentage dri the outlay of the pro- prietor. Footner vs. Joseph^. C, 3 L. C. J., p. 233. But in this case it was held oh appeal to Queen's Bench, that although an architect has. no. right in the absence of an ex- press convention to recover a commission on the proprietor's outlay eo nomine, yetthe value of his services may be esta- blished by evidence that the allowance of a commission is usual, and is a fair' and reasonable mode of rem,uheration ; in which case he will recover a? for a quantum meruit. 5L. C. J., p. 225 ; and llLC.i 94. Arrears oy Interest :— Hrfe Hypoth£o.ve. | , '~' : '" •'' " " :— " Interest^' 30 ART to ASS Articulation of Facts : — 1. A general articulation of facts will be rejected from the record as contrary to the law, which re- quires such articulation to be clear and distinct. The Molsons' Bank vs. Falkner et al., and Falkner et al., opposants, S. C, 6L. C. J., p. 120. 2. An articulation of facts which contains matter not to he found in the pleadings, or matters admitted by the plead- ing, is nevertheless good. Rouleau vs. Bacquet, S. C, 8 L. C. R.,p. 154. 3. The default of either party to a suit to produce an articulation of facts, has not the effect of preventing the case from being proceeded with and heard. Belangerand Moge, Q. B.,6 L. C. J., p. 61. 4. Where a party in a cause has failed to answer the arti- culation of facts filed by his adversary, the facts articulated will be taken as admitted. Owens vs. Dubw and Campbdl, S. C, 6 L. C. J., p. 121 ; and 12 L. C. R., p. 399. And so the default of the plaintiff to answer the articulation of facts having the effect of an admission of the facts alleged, the claim set up in compensation, though not founded on an authentic deed, became claire et liquide, and extinguished the adverse claim. Archambault &■ Archambault, Q. B., 10 L. C. R., p. 422. Also 4 L. C, J., p. 284. 5. But a party will be allowed to file an answer to an articulation of facts, even after the final hearing of the cause, on payment of costs, on affidavit that such answers had not been produced through an oversight. Boswell vs. Lloyd, S. C, 13 L. C. R. p. 121. Assault: — 1. As to the authority of the master of a merchantman to inflict punishment on a passenger who refuses to submit to the discipline of the ship. The Friends, p. 1 18, S. V. A. R. 2. Assault and battery, and oppressive treatment by the master of a ship upon a cabin passenger,— charge sustained, The Toronto, p. 170, S. V. A. R. 3. No words of provocation whatever will justify an as- sault, lb. 4. If provoking language be given, without reasonable cause, and the party offended be tempted to strike the other, and an action brought, the Court will be bound to consider the provocation in assessing the damages, lb. 5. To constitute such an assault as will justify moderate and reasonable violence in self-defence, there must be an attempt, or offer, with force and violence, to do a corporal hurt to another, lb. 6. In an action against the captain of a ship chartered by the East India Company, for an assault and false imprison- ment, — a justification on the ground of mutinous, disobedient, and disorderly behaviour sustained. The Coldstream, p. 386, S. V. A. R. 7. In an action of damages for assault and battery, words in the declaration charging the defendants with a design to do grievous bodily harm to the plaintiff, do not necessarily constitute an accusation of felony ; and even where the assault charged would amount to a felony, the plaintiff may proceed in an action for damages, without being in the first ASS 31 Assault : — place compelled to prosecute criminally, for the assault of which he complains. Lamothe and Chevalier, Q. B., 4 L. C. R., p. 160. 8. It is no assault for a conductor of a railway train to put a passenger off the train, who wrongfully refuses to pay his fare. Regina vs. Faneuf, 5 L. C. J.^ p. 167. Assembly : — Vide Legislative Assembly. Assessments: — 1. Assessments may be recovered from a party holding land within the limits of the city of Montreal, under a lease from government for twenty-one years, renewable on certain conditions, on the ground that such party is an owner of the land within the meaning of the by-law'of the corporation imposing assessments on real property. Gould vs. The Mayor, Sfc, of the City of Montreal, S. C, 2 L. C. J., p. 260. Confirmed in appeal to Q. B., 1st December, 1858. Also exp. Harvey S. C. 5 L. C. J., p. 378, Infra Lease, No. 12. 2. The undertaking of a tenant in his lease to pay the yearly assessments on the property leased, includes the rate levied on all the assessable property in Montreal, under the provisions of the 22 Vic. ch. 15, sect. 3, commonly called '■ the Special Tax," where the parties make no distinction as to what assessments the lessee shall pay, he will be held liable for every city tax. Pinsonneault vs. Ramsay, C. C, 5 L. C. J., p. 227, and 12 L. C. R., p. 82. But the same day, Badgley, J., held that the tax under this statute was not recoverable by a landlord under a general undertaking to pay the assessments. It was not a city tax or assessment of the corporation, but a special tax imposed on property in the city of Montreal for particular purposes, and which did not go into the general fund of the city. Courcelle dit Chevalier vs. Longpre, 5 L. C. J., p. 228. But later, Smith, J., held that such special tax was recoverable. Pinsonneault vs. Henderson, and in three other cases, C. C, 5 L. C. J., pp. 338-9 ; and also in a case of Dumas vs. Viau, ib., and in another case of Judah vs. Laxoie, S. C, 5 L. C. J., p. 340. Also Berthelet vs. Muir, et al., C. C, 11 L. C. R., p. 482. 3. Local councils cannot cause the lands of absentee pro- prietors situate within their jurisdiction to be sold for the non-performance of road-work required by prods-verbal, where such work had been let out by such councils to the lowest bidder, until after judgment has been obtained against such proprietors for the work done by road-officers, as permitted by the municipal act. And the letting out of road-work, to which lands are liable, by contract to the lowest bidder, where the work was to be done by private individuals, is not legal, and an action negatoire to have lands declared free from illegal rates and to have the councils desist from the sale of lands for rates illegally imposed, is the proper mode of proceeding. McDougall and The Corporation of the Parish of St. Ephrem d' Upton, Q. B., 5 L. C. J., p. 229, and 11 L. C. R., p. 353. 5. The line of the Grand Trunk Railway Co. is not iiable for assessments idr school purposes; but if improperly assessed it is the duty of the Company to object to the 32 ASS Assessments : — repartition during the 30 days allowed by law for its amend- ment. Commissaires cfecole d? Acton vs. The Grand Trunk Railway Company, C. C, L. R., p. 77. " : — Vide Lease. Assessors: — 1. Assessors appointed under a statute authorizing the corporation of Montreal to appoint them, and to grant them such remuneration for their services as the council may deem fitting, cannot recover a quantum meruit in an action against the corporation. Gorrie vs. the Mayor, SfC, of the City of Montreal, S. C, 8 L. C. JR., p. 236. But in appeal it was held otherwise in the case of Boulanget vs. The Mayor, Src., of the City of Montreal, Q. B., 9 L. C. R., p. 363. And so also in Gorrie's case. 2. Captain Henry W. Bayfield, R. N., commanding naval and surveying service in the river and gulf of St. Lawrence — his opinion in the following cases: — 1. The Cumberland, p. 79., S. V. A. R. ; 2. The Nelson Village, p. 156, ib.; 3. The Leonidas, p. 230, ib. 3. Captain Edward Boxer, R. N., C. B., harbour-master and captain of the port at Quebec — his opinion in the follow- ing cases : — 1. The John Munn, p. 266, ib.; 2. Bytown,]>.278,ib. 4. Lieut. Edward D. Ashe, R. N., superintendent of the Quebec Observatory — his opinion in the following cases : — 1. The Rodin Castle and the Glencairn, p. 306, ib. ; 2. The Niagara and the Elizabeth, pp. 316-320, ib. 5. Captain Jesse Armstrong, harbour-master of -Quebec — his opinion in the case of the Niagara and the Elizabeth, pp. 316-320, ib. 6. As to practice where nautical skill and knowledge are required, Sir James Marriott's Formulary, p. 159, ib. Assignees : — 1. One of two joint assignees may legally receive pay- ment and give a discharge to a debtor of the bankrupt estate, without the concurrence of the other assignee. Molson and Renaud et al., Q. B., 1 L. C. R., p. 495. 2. An assignee of a debt has a right to intervene in a suit instituted with his consent, by the assignors, and to cause all further proceedings to be suspended ; but he must bear all the costs of the instance up to the time he so intervenes. Berthelet and Guy et al., Q. B., 2 L. C. J., p. 209. 3. An assignee of a plaintiff cannot by motion claim to be made a party to a cause, the proper course being to apply by petition, he being a stranger to the record. Rose vs. Coutlee and Coutlee, S. C, 7 L. C. J., p. 284. Assignment: — 1. Militia pensions are not assignable. Chretien vs. Roy dit Desjardins, S. C, 6 L. C. R., p. 465. Claims under the rebellion losses Act, 12 Vic, c. 58, are assignable. Paeaud vs. Bourdages, S. C, L. R., p. 101. 2. The assignor of an indemnity granted by the provincial government under the 12 Vic, c 58, is not bound to make good the amount transferred, his claim having been reduced by the commissioners- under the said Act. Barrette and Workman, Q. B., 6 L. C. R., p. 284.* * The deed did not set forth any guarantee oi the sum mentioned,, and the court inter- preted the deed as being the sale of uncertain and litigious rights, so.. this case establishes no exception to the usual rqje. ASS 33 Assignment : — 3. An assignment made by a bailleur defends of part of a sum of money due him for the price of the sale of an immove- able property, gives the assignee a right to be collocated concurrently with the assignor, upon the proceeds of the sale of such immoveable property, notwithstanding that such assignment is made by the assignor without any warranty whatsoever, the assignee accepting thereof d ses frais, risques et perils. Wurtcle et al., vs. Henry, S. C, 2 L. C. R., p. 317. ■ . . 4. Where several creditors of a debtor have transferred their claims against him to a third party, without specifying in the acte of cession the total amount of the sums so trans- ferred, the cessionnaire being only bound to pay 5s. in the £, on these sums, and without ail the creditors named in the acte having signed the same, the cessionnaire is not bound. And the cedant cannot compul the cessionnaire to pay the amount of the consideration, without putting the latter in possession of the titles against the debtor. Macfarlane vs. Mmbault etal., S. C, 4 L. C. R., p. 88.* 5. Question as to what constitutes fraud in an assignment by an insolvent. Sharing and Meunier dit Lapierre, Q. B., 7 L. C. R., p. 250. 6. In order to set aside an assignment on the ground of fraud, the insolvency of the debtor must be alleged and proved. Bemier vs. Vachon et al., S. C, 8 L. C. R., p. 286. In an assignment absence of tradition and want of con- sideration, are strong indications of fraud ; delivery of possession gives only rise to a presumption of honesty, but non-delivery is strong evidence of fraud. Barbour et al., vs. Fairchild et al. and Miligan, S, C, 6 L. C. R., p. 113 ; and an assignment of the interest of an insolvent in his lease or leases of the premises containing the property sold, does not necessarily amount to an actual delivery (tradition reellf) in law as against third parties. Gumming et al., vs. Smith et al., 5 L. C. J., p. 1. 7. Assignments not being made by notarial deeds, are not evidence that sales were not bond, fide; and the circum- stance of sales being made without warranty, does not raise presumption that such sales were fraudulent, and that because vendor refuses to warrant, it must therefore be taken that purchaser knew that there was fraud or that there was no title. Macfarlane et al., and Leclaire et al., P. C, 12 L. C. R., p. 374. 8. The assignment of an unfinished contract will not be set aside on an allegation of fraud by a creditor of the assignor, such alleged fraud consisting in the assignment of money due on that part of the contract completed at the period of the assignment. Berlinguet and Drolet, Q. B., 12 L. C. R., p. 432. But if in such case the amount of money transferred exceeded the value of the work still to be done, the creditors of the assignor might have it set aside for the surplus, lb. * This judgment was confirmed in appeal, Mr. Justice Rolland remarking that he would have dismissed the action for the; reason that the sums were in. figures, which gave no sort of authenticity to the deed. 3 i 34 A- & S Assignment : — 9. The condition in a voluntary assignment of the estate of an insolvent debtor, accepted by the majority of the Creditors, to the effect that the debtor is fully discharged, is inoperative as against a creditor who has not signed ; and such creditor may seize the estate in the hands of the assignees, or of any one to whom the totality may have been sold. And a vendee to whom the assignees' have sold the entire esta-fe, the next day after receiving it, being him- self a party to the assignment, is accountable for the estate to a dissenting creditor, notwithstanding that the assignees acknowledged payment in full of the price stipulated, and such vendee, as well as the Other creditors, must specify the goods and moneys he has received ; and the declarations in such deeds make proof against the parties to them, hut not against' the dissenting creditor. Macfarlane et al., and Mackenzie et al., and E' contra, Q. B., 5 L. C. J., p. 106. 10. Arid it is no answer to a party to a deed of assignment of an insolvent's estate, on an action to account against the assignees that they had sold the estate to one of the insol- vents who had undertaken to pay the creditors. Torrance vs. Ohcrpman et al., S. C, 6 L. C. J., p. 32. 1 1. An assignment, without actual consideration, is only a donation, and the fraud of the debtor is 1 sufficient to dis- possess the donee. ' The law presumes personal property in the possession of married persons, to be common property, unless disproved by strict proof of individual property in the wife. A subsequent creditor may plead simulation of pre- vious deed for property which never passed from debtor. Marriage is a good consideration for bona fide stipulations of contract of marriage in favor of the wife. Barbour vs. Fair- child and Milligan, S. C, 6 L. C R., p. 113. 12. The assignee of a debt is entitled to intervene on the seizure of the immoveable property of the debtor, made in the name of the assignor, before notification of the assign- ment for benefit of the assignee, and also to be declared dbminus litis. And the assignor has no right to contest such a demand nor to claim to lie first re-imbursed the costs by him incurred as well on the suit as upon the seizure. Ber- thelet and Guy etal., Q. B., 8 L. C. R., p. 305. But assignee is liable for the costs,. 2 L. C. J., pi 209. 13. In the case of Cumming r et~al. and Smith et al., it was held in Queen's Bench, 5 L. C. J., p. 1, that the estate and effects of an insojvent are the gage commun Of all his cre- ditors, and that a sale omnium bdnoriint, made by an insolvent trader, at common law and according to the principles of the law Of commerce, and especially under the edict of King Henry IV. of France,, May 1609, is absolutely null and void! Also 10 L. C. EL, p. 122 ; also Withall Vs. Young et al. and 'Miction, Q. B., i0 Li C. B,, p. 14& 14. So a creditor is not bound to submit to conditions in a deed of composition between a debtor and the majority of his Creditors.; and thus the limitation in a deed byjissign- ment requiring a creditor, who receives his proportion,,of the estate of an insolvent debtor, to- give a discharge in- fell* iw inoperative as regards creditors not parties to the deed.' Attd AS S to ATE 35 Assignment : — where the aissignor holds moneys of the estate, the Court will order him to pay over to an attaching creditor not a party to the deed of assignment. Macfarlane vs. Belisle and Mackenzie et al„ T. Sj, S. C., 3 L. C. J., p. 163. 15. And so also an auctioneer receiving the goods of an insolvent for sale cannot set-off the proceeds against a debt due to himself, but is liable to account to the creditors of the insolvent. Fisher vs. Braycott and Scott, S. C, L. R, p. 44. 16. A debtor who has assigned all his property for the benefit of his creditors, and who afterwards has paid his debts, can have the deed of assignment set aside and may even seize any part of his property so assigned in the hands of the third persons to whom the judgment of retrocession has not been notified, subject probably in sueh cases to costs if the third party persist in his possession of such property. Hagan and Wright, Q. B., 11 L. C. R., p. 92. 17. A bailiff's certificate cannot be taken as authentic to establish the signification of an assignment. St. John vs. BeUsle, S. C, 2 L. C. R., p. 150. " : — Tide Bankruptcy. ■ " Insurance. • " Partnership. • " Transport. Assignation : — Vide Service. Assumpsit : — 1. It is no answer to an action of assumpsit, for goods sold and delivered, that they were not according to order, unless defendant have returned the goods or given plaintiff notice to take them back. Wurtele et al. vs. Boswell, 3 Rev. de Leg., p. 193. Nor that the defendant paid by a note at a loiig date unless he 1 can establish that plaintiff accepted the" note. Lavoie vs. Crevier, Q. B., 9 L. C. R., p. 418. 2. An action of assumpsit for work and labor done and performed cannot be maintained if it was done under a con- tract. McGinnis vs. McClo'skey, S. C, 1 L. C. J., p. 193. And money paid in advanee on account of the consideration of a contract for building cannot be recovered back by action of assumpsit. Ingham vs. Kirkpatrick, S. C, 3 L. C. J., p. 282. 3. A partner has no action of assumpsit against his former partner after dissolution of the partnership for pretended debts paid by him^ or for money taken by him from the partnership funds. Thurber vs. Pilon, S. C, 4 L. C. J., p. 37. 4. In an action of assumpsit a defendant may be asked whether he gave a note for the amount claimed although sueh note were then prescribed. Bagg et al. vs. Wurtele, S. C, 6 L. C. J., p. 30. Atermoiement : — 1. Under a deed of composition or atermoiement the failure to pay a second or subsequent instalment, the first being paid, gives the creditor the right to sue for the whole balance due; S. C. Brown et al. vs. Ehftigan, 5 L. C. J., p. 41. 2. And where the period fixed for payment of the com- position had elapsed, without the same having been paid, the debtor was condemned and held liable to pay the full 36 ATE Atermoiement : — amount of his debt although he had tendered the full amount of such composition prior to the institution of the action. Beaudry et al. vs. Bareille, 1 Rev. de Leg., p. 33. Also in a case of Atkinson vs. Nesbitt, 1 Rev. de L6g., p. 110, it was held that the term of payment fixed by an act of atermoiement, is a condition resolutoire, which annulls the act entirely without its Wing so declared en justice, and which gives the creditor the right to sue on the original debt de piano. But it is otherwise if the delay be in any way owing to the fault of the creditor. 3. And where upon a covenant in the deed of composition founded upon the delivery at a certain time and place, of two promissory notes, endorsed by a third party to whom the amount due should be assigned, the delay of two, days incurred in the delivery of the notes will not deprive the debtor of the benefit of the composition, the creditor not having presented himself to receive the notes and execute the assignment, but having, on the contrary, made known his intention to present himself to receive the notes in ques- tion later, by reason of his residence at a distance from the place where the notes were to be delivered. King and Breakey, Q. B., 7 L. C. R., p. 306 ; and so also in Boudreau if al. vs. D' Amour, S. C, 3 L. C. J., p. 124. 4. A deed of composition between a firm and its creditors, in which it is stipulated that all the creditors should sign, is not valid or binding unless they all do so. Cuvillier if al. vs. Buteau, 1 Rev. de Leg. p. 109. 5. A transfer of certain debts to creditors, which debts, if paid, are to be taken in full discharge of the debtor, operates no novation ; and if the case be a commercial one, and the debts be not paid, it is not necessary to bring an action en decheance before suing on the original debt. Boudreau if al. vs. & Amour, S. C, 9 L. C. R., p. 330, and 3 L. C. J., p. 124. And in the same case it was held that the delay granted by one of the co-cessionnaires for the payment of one of the debts so tranferred binds the other co-cessionnaires. 6. But where notes of other parties have been given as the consideration of a compensation, and that such notes have been retained by the compounding creditor, the latter cannot sue on the original debt although two of the notes were not paid till long after it was due, and that the other was still not wholly paid. Roy et al., vs. Turcotte, C. C, 7 L. C. J., p. 53. 7. A promissory note or any undertaking to give any con- sideration by an insolvent debtor to a creditor, in contempla- tion of a deed of composition, and as a preference to such creditor without the knowledge of the other creditors, is null and void, and will be declared so even as against the compounding debtor himself. Greenshields vs. Plamondon, S. C, 3 L. C. J., p. 240. But in the Queen's Bench this judgment was reversed, the note not being for the defen- dant's own debt but for one for which he was security for a third party, and because the agreement was not prejudicial to the other creditors, who did not complain of it. Green- shields if al. and Plamoiidon, 10 L, C. R., p. 251. ATT 37 Attachment : — 1. Attachment awarded against a master for taking: out of the jurisdiction of the court his vessel, which had! been regularly attached. The Friends, p. 72, S. V. A. R. 2. Application for an attachment for contempt for resisting the process of the court, rejected ; the statement of the officer being contradicted by the affidavits of two other per- sons present at the arrest. The Sarah, p. 86, ib. 3. Application for an attachment for a contempt against a magistrate, first seized of a seaman's suit, for having issued; a warrant, and arrested the seaman whilst attending his proctor for the purpose of bringing the suit, rejected. The Isabella, p. 134, ib. 4. Attachment decreed for contempt, in obstructing the marshal in the execution of the process of the court. The Delta, p. 207, ib. Attorney : — 1. The attorney ad litem is responsible to the sheriff for his fees and disbursements on writs of execution issued on \ns fiat, and two attomies in partnership are jointly and severally liable for such fees and disbursements. Boston and Taylor, Q. B., 7 L. C. R., p. 329, and 1 L. C. J., p. 60. But an attorney is not liable for the indemnity due to witnesses, summoned by him at the request of his client. Laroche vs. Holt et al., C. C, 3 L. C. R., p. 109. 2. The substitution of an attorney for the appellant in lieu of one who previously represented him, is an acquiescence in all proceedings of the first attorney, there being no desaveu, and this notwithstanding any irregularity in the proceedings. Burroughs and. Molson ct al., Q. B., 8 L. C. R., p. 494. 3. Where a suggestion of the death of one of several defendants is filed of record, a motion to compel the remain- ing defendants to substitute an attorney in the place of the attorney of record, one of whom had been promoted to the bench, will not be granted until such suggestion is removed or disposed of. Sauvageau vs. Robertson et al., S. C, 9 L. C. R., p. 224. 4. When one of two partners, attorneys, leaves the district, the other can continue to act in the cause in his individual name, without the necessity of a regular substitution. Tidmarsh vs. Stephens et al., S. C, 1 L. C. .1., p. 16, and 6 L. C. R., p. 194. And so also it was held that service upon one of the partners, the other having been raised to the bench was sufficient, in the case of McCarthy and Hart, Q. B., 9 L. C. R., p. 395. And when-, one of three attor- neys of record is dead, peremption d^instmice will be properly demanded in the name of the two survivors. Be Beavjeu vs. Rodrigue, S. C, 7 L. C. J., p. 43. 5. An attorney in a cause is dominus litis, and he cannot be interfered with by any arraujrement entered into with his own client by the opposite p..rfy or his attorney, without his sanction. OTonncll vs. the Corporation of Montreal, S. C.; 4 L. C. J., p. 56, and 10 L. C. R., p. 19. 6. An attorney has no right to a fee for a re-hearing, unless the re-hearing takes place by the order of the court, and to enable the court to be more fully informed of the case. Boswell vs. Lloyd, S. C, 13 L. C. R., p. 18. 38 ATT to AUC Attorney : — 7. A practising attorney cannot become bail or surety in any proceedings cognizable by Superior Court. Routier and Gingras, S. C., 3 L. C. R., p. 57. Nor in Appeals from the Superior Court to the Queen's Bench, without contravening the 6th rule of practice. Lemelin and Larue, Q. B., 10 L. C. R., p. 190. 8. Where an attorney has represented a party in a cause subsequent to judgment, another attorney ad litem cannot take proceedings in the cause without a substitution, and on motion of the first attorney all proceedings of the second attorney will be rejected from the record. Gillespie et al., vs. Spragg, S. C, 6 L. C. J., p. 28. 9. And substitution of a new attorney will not be granted unless there be full revocation of the attorney of record ; so where one of three co-plaintiffs made an arte of substitution, the other two not being parties to the acte, the court refused the motion. Mann et al., vs. Lambe, S. C, 5 L. C. J., p. 98, 10. But when attorneys of record consent to a substitution, no adjudication is necessary. Huot dit Delude vs. McGill et al., S. C, 7 L. C. J., p. 123. 11. A party having appeared by his attorney in a suit, cannot examine a witness personally, nor even as counsel at enque:e if he be a practising barrister. Ramsay vs. David and Walker, S. C, 6 L. C. J., p. 295.* " : — Vide Advocates. ■ " Bail. " Bond. " Certificate of Service. ■ " Judgment. Attorney General: — 1. During the absence of the attorney-general, the powers and, duties of the office devolve upon the solicitor- general. The Dumfriesshire, p.- 245 , S. V. A. R. 2. The attorney-general appearing for Her Majesty, cannot appear by attorney, and where an informatipn was signed by procureurs du procureur- general pro regind, the informa- tion will be dismissed on exception d la forme. The Attorney Gefieral pro regind, vs. Laviolette et al.,.S. C,, 6 ,L. C. J., p. 309. Auction: — Where a purchaser refuses to pay in compliance with the conditions of sale, the goods, after notice to purchaser, may be again sold at auction, and he will be ljable for any difference in the price, if less than at the first sale, and all costs and charges. Maxham efal., vs. Stafford, S.. C, 5 L. C. J., p. I On. Auctioneer :-=-l. Where an auctioneer puts up a registered vessel for sale, without naming his principal, and the same is adjudged, without any express condition as to the time and manner of executing the written transfer of such vessel, the auctioneer cannot recover from the purchaser the sum for # These two derision- were eiven the same day at enquete sittings.. It is almost needless to im\ that the primuiv and .indefeasible right ot a party, is to appear in his own t-:ise. But how is ih s ease to lie reoonoiled with Ryan mid -Wafd. F/flfe'CosTS, No 13, where it was held that the panics may persojiailyagree to. withdraw an ao.liun, without the intervention of the attorney demanding distfact^m fie frais ? Or with the , still more recent case o( Ostell and Joseph, S. (J. M No. 2254, 1SU4, where the parties settled in fraud of the attorneys of the Defendant ! Both decisions may be wrong ; but both cannot be right. AUp to BAI 39 Auctioneer : — which the vessel was adjudged, unless he procure and deliver to the purchaser a legal transfer of the vessel executed by the owner or by some person legally authorized for the purpose, according to the requirements of the registry act. Burns vs. Hart, P. R., p. 63. 2. On an action for a statement due on a prix de vente, defendant cannot avoid payment by setting up that the auctioneer from whom he purchased, described the Jot as an emplacement , &c, with mitoyen right on gable of buildings belonging to C, the notarial deed subsequently passed making no mention of such right. McKenzie vs. Joseph, S. C, 13 L. C. R., p. 168. 3. An auctioneer receiving the goods of an insolvent party for sale, cannot off-set the proceeds against a debt due to himself, but is liable to account to the creditors of the insolvent. Fisher vs. Braycott and Scott, S. C, L. R. p. 44. 4. An auctioneer is bound to deliver to his principal the notes he may have received for the goods he has sold whe- ther he guarentees the sales or not, and if he sells goods for his principal on purchasers' notes, he has no right to accept from the purchaser a note which covers the price of goods ^belonging to another. Sinclair vs. Leeming et al., Q. B., 5 L. C. J. p. 247. 5. The undertaking to guarantee sales by an auctioneer or -other agent, where notes are given in payment, is reasonably interpreted to create a liability to endorse such notes, lb. Aval : — 1. An aval may be made by a signature sous croiz, if the matter for which the note is given be of a commercial nature. Paterson et al. and Pain, S. C, 1 L. C. R. p. 219. 2. The signature of the person, not the payee, nor subse- quent holder under the payee written in blank on a promis- sory note, may be considered . an aval; and the donneur ePaml, as such, is not entitled to notice of protest. Whether such signature in blank is an aval or not is to be decided by the jury. Merritt vs. Lynch, S. C, 3 L. C. J., p. 276. 3. The donneur d'aval is not entitled to protest. Pariseau vs. Ouellet, S. C, L. R., p. 57. Vide Supra, No. 2. Aveu: — Vide Admission. Bail « *Bail — Vide Lease. — Emphiteotique. — Vide HvpoTHfiaUE. — By Attorney. — A practising barrister or attorney cannot be- come bail or surety in any proceedings cognizable by the Superior Court. Routier and Gingras, S. C, 3 L. C. R. p. 57. JMor in appeals from the Superior Court. Lemelin and Larue, Q. B., 10 L. C. R. p. 190. : — To Sheriff. — 1. Bail to a sheriff for a defendant on capias ad respondendum, is only liable for the amount stated in the bail bond, and not for the full amount of the judgment, ren- dered against such defendant. Joseph vs. Cuvillier, S. C, 5 L. C. R. p. 94. 2. A motion to put in special bail after the expiration of -eight days from the return day, which does not set forth special grounds in support thereof, cannot be received. Begin et al. vs. Bell et al., S. C, 8 L. C. R., p. 138. 40 B A I Bail : — 3. Special bail may be put in even after judgment and! after the bail to the sheriff have been sued, and this on petition of the bail themselves. Lrfebvre vs. Vallee, S. C. t 3 L. C. J., p. 117, and 9. L. C. ft., p. 49. And also in another case of Campbell and Atkins et al., Q. B., 9 L. CL R., p. 74. And in another case, though not without difficulty,, and only in compliance with the decision of the Queen's- Bench, that a petition to put in special bail will be granted after the eight days after the return has expired ; and even at any reasonable time thereafter depending on cause shewn and diligence made. Miles vs. Aspinall, S. C, 7 L. C. J., p. 124. But at Sherbrooke it was held that it would not be granted after judgment or at any time after the expiration of the eight days unless special cause was shewn. Vannevar et al. vs. Be Courtnay, S. C, 7 L. C. J. p. 120. 4. The bail of a party is an incompetent witness on his- behalf. The Sophia, p. 219, S. V. A. R. Bail: — In Criminal cases. — 1. Where a party accused of perjury ha* been arraigned and pleaded " not guilty," and no day cer- tain has been fixed for the trial, and no forfeiture of his bail has been declared, the mere failure of the party when called upon to answer in the term subsequent to that in which he was arraigned cannot operate as a forfeiture of such bail. The Attorney General, pro ReginA, vs. Beaulvu, S. C, 3 L. C. J., p. 117. Also the case of Croteau, 9 L. C. Ft., p. 67. 2. A prisoner confined in gaol upon a charge of a capital felony, may be admitted to bail after the finding of a true bill by the grand jury, if, upon the reading of the depositions against him, those depositions are found to create but a very slight suspicion of the prisoner's guilt. Ex parte Maguire, 7 L. C. R., p. 57. Bail Bond: — Vide Appeal. Bailleur de fonds. — 1. Privilege of bailleur defonds will be postponed to the hypotheque of an ordinary judgment creditor whose judgment was registered before the deed of the vendor. LeMesurier Sf al. vs. McCaw, and Dolan, Opposant, S. C, 2 L. C. J., p. 219. 2. The special privilege of the bailleur defonds is preferable to the general privilege of the physician for frais of the last illness upon the proceeds of immoveable property, even though there should be no moveables out of the proceeds of which such physician can be paid. TuscJiereau vs. Bela- gorgendiere and Proulx, S. C, 9 L. C. R., p. 497. 3. The expertise made by a builder or architect at the time of inscribing his privilege, may be attacked by the bailleur de fonds, and the latter may have a contradictory expertise, if there be a conflict of their privileges, and the estimation of the two kinds of property relatively to the time when the privilege of the builder was enregistered. But the bailleur defonds has a right to the full value of the property at the time of the sale, and not only to a proportional part of it. Boutre vs. Green and Elcidge, S. C, 5 L. C. J., p. 152. The same case is also reported, 11 L. C. R., p. 79, with the view of bringing out other points of the case which do not appear to be subject to generalisation. " \~-Vvde Assignment. BAI to BAN 41 Bailiff : — 1. A writ of summons addressed to any of the bailiffo residing in a district will be good, if it was served by a bailiff duly appointed for such district.* Tetu vs. Martin, S. C, 3 L. C. R., p. 194. 2. A bailiff can execute a writ of/L fa. against his brother- in-law or other relative. Lemieux vs. Cote and Cote, S. C, 10L. C. R.p. 184. 3. But the service of a writ of summons made by a bailiff, related to the plaintiff, is null. Birs clit Desmarteau vs. Aubertain, S. C, 6 L. C. J., p. 88. 4. A bailiff has no action for the recovery of the price of goods seized and sold en justice, against the purchaser to whom he has delivered them previous to being paid. Pelle- tier vs. Lajoie, C. C, 5 L. C. R., p. 394. f 5. In the C. C. a rule nisi causa will not be declared absolute praying that a balifi who has made no return to a writ of execution, with which he was charged, be declared in contempt of Court and imprisoned until he pays the debt and costs. Holland vs. Reuger and Lafontaine, C. C, 7 L. C. J., p. 48. 6. A bailiff not a party to a suit cannot move to be allowed to amend his return. Hobbs vs. Seymour et al.. S. C, 13 L. C. R. p. 75, and 7 L. C. J., p. 46. But MonJc t A. J., afterwards permitted the bailiff to amend his return on petition, lb. 7. Bailiff's fees are absolutely prescribed by the lapse of three years under the 12 Vic. c. 44, [Con. Stat. L. C. c. 82, s. 34, s. s. 3.] LePailleur vs. Scott et al., C. C, 1 L. C. J., p. 275, and 6 L. C. R., p. 59. 8. The date in the return of service of a bailiff may be in figures. Lamothe and Garceau, Q. B., 7 L. C. J., p. 115. " .: — Vide Prescription. — Service. Banc d'Eglise:. — Vide Pew. Bank : — Vide Evidence. Bank of Montreal : — In an Act to amend the charter of the Bank of Montreal (24 Vict. c. 91, s. 4), it is provided that when the directors have " reasonable doubts" as to the legality of any claim to any share, dividend or deposit of or in the said bank, when the legal right of possession to such share, dividend or deposit shall change by any lawful means other than that by transfer, they shall be allowed to present a declaration and petition to the Superior Court, setting forth the facts, and praying for an order or judgment, adjudicating and awarding the said shares, dividends or deposits to the party or parties legally entitled to the same. Within the meaning of such Act it is not sufficient merely to allege that the petitioners entertain such doubts ; but the grounds thereof must be stated and fully declared in the petition else it will be dismissed with costs. The Bank of Montreal and Glen et al., S. C, 6 L. C. J., p. 248, and 12 L. C. R., p. 348. Bankruptcy : — 1. An English commission of bankruptcy operates in Canada as a voluntary assignment by the bankrupt. The assignees may therefore sue for debts due to the bankrupt, * But see certain cases in which a bailiff may serve Writs, &c, out ol the district for Which he is appointed, Con. Stat. h. C, cap. 83, sect. 65. t Semite, plaintiff, had not himself paid for the goods nor been troubled for the payment of them. 42 BAN Bankruptcy * or for his property, and may take the share of the proceeds of the bankrupt's estate, which belongs to the English cre- ditors, but such proceedings of the assignees cannot deprive the provincial creditors of any acquired rights or privileges as to the property of the bankrupt, or proceeds thereof to which they by the law of Canada, may be entitled ; nor can such rights or privileges be affected by the commission or by the assignment. Bruce vs. Anderson, S. R., p. 127. 2. The assignee of a bankrupt has a right to claim property acquired by the bankrupt subsequently to the issuing of the commission and i re ions to the granting of the certificate. Blanchard and Whiteford, S. C, 3 L. C. R., p. 61. 3 . Bankru ptcy vests in the cred itors the absol ute property of the bankrupt estate. The acknowledgment of indebtedness, or confession of judgment by a bankrupt, in favor of any person, is no evidence as against the other creditors, and on contestation of such a claim on a plea of fraud and collusion, it is the duty of the creditor to establish his claim, and to adduce evidence of the consideration of the debt claimed when the cause is set down for enquSte. The payment by a third party of sums due by a bankrupt or insolvent debtor, without transfer or subrogation, creating a debt subsequent to the insolvency, cannot give to such party a right to rank on the estate of the insolvent debtor which. he possessed at the time of his insolvency. Evidence of such claim not having been made when the cause was regularly inscribed for enquSte could not be adduced subsequently when proof was ordered by the Court of Appeals on exceptions, which had been wrongly over-ruled by the Court below. Bryson and Dickson, Q. B., 3 L. C. R., p. 65. 4. The Crown is not bound by the certificate granted toa bankrupt from recovering sums of money due for revenue. The Attorney General, pro Regind, vs. White Sf al., S. C, 1 L. C. R., p. 359. 5. The claim of a notary for making a livre terrier for a seigniory will be discharged by a certificate of discharge under the commission in bankruptcy. David and Hart, S, C, 10 L. C. R., p. 453. 6. In an action brought by the cessionnair,e of the assignees of a bankrupt estate, who has purchased the outstanding debts of the estate, for the recovery of any such debt, it is neces- sary to allege in the declaration that the sale was made by the order of the judge, and that the formalities required by the 67th section of the Bankrupt Act have been complied with. Warner vs. Mernagh, S. C, 2 L. C. R., p. 452. 7. The term bankruptcy, in the 7th sect. Con. St. L.C., c. 37, does not mean the same as insolvency. The former is the condition of a trader who had done or suffered some act to be done which is deemed an act of bankruptcy. Insol- vency is the inability to pay one's debts. And the Court was of opinion that an hypothec given within ten days of deconfiture is not inoperative. Anderson &-al. and Ginereux, Q. B., 13 L. C. R., p. 374. 8. The sale of the im moveables of a Bankrupt does not purge the hypothecs with which such property is chjatgsd, BAN to BILL 43 Bankruptcy : — although the hypothecary creditor may .have filed his claim against the bankrupt unless there be.an express renunciation. Exp. Chabot, 1 Rev. de Leg., p. 265. But see Oadieuz and Pinet £ al., Q. B., 6 L. C. R., p. 44,6. Bankrupt : — Vide Hypotheque. Bank Stock : — Vide Tutor. Baptisms : — Vide Registers. Bar : — The Council of the bar acting and taking cognizance of com- plaints against members of the profession under the 72nd chapter of the C. S. L. C, have no jurisdiction to try a complaint made against a member for an act done as a mere agent. Ex parte Devlin, S. C, 7 L. C. J., p. 29. Bastard : — Vide Paternit£. Bateau : — Vide Jurisdiction. Beaches : — 1. A censitaire who has been in possession of the right of fishing in the River St. Lawrence in front of his property for thirty years and upwards, and whose titles declare that he is proprietor of such right, may bring a possessory action, when he is disturbed in his possession, without being obliged to produce a title from the Crown, such title, so far as third parties are concerned, being presumed* Gagnon and Hudon, Q. B., 6 L. C. R., p. 242. 2. The beaches of the north shore of the jriver St. Lawrence are now vested ,in the Quebec Harbour Commissioners, and they alone have the control and management of the same, as also the right of punishing any person who may encroach upon, or encumber them, and the Trinity House in so far as it conferred any powers of control and management, is repealed by implication. Ex parte Lane, S. C, 11 L. C. R., p. 453. Bet : — 1. A bet touching the result of an election is null, and a note given for it is also null. Dufresne vs. Guevremont, C. C, 5 L. C. J., p. 278. Even in the hands of an innocent holder. JBiroleau vs. Derouin, S. C, 7 L. C. J., p. 128. 2. Betting on horse races by the owners of the horses is not contrary to law, and such bets can be enforced by suit. Rickaby vs. Sutlife, S. C, 13 L. C. R., p. 320. Betterments : — Vide Improvements. Bigamy : — On an indictment for bigamy committed in a foreign country, it is necessary that the indictment should contain the allegations that the accused is a British subject; that he is or was resident in the province, and that he left the same with intent to commit the offence. Regina vs. McQuiggan, Q. B., 2 L. C. R., p. 340. Bill of Exchange : — 1. The drawer of an.inland bill of exchange is quoad hoc a merchant, and a capias ad satisfaciendum may be had upon a judgment thereupon obtained against him, under the Ordinance 25 Geo. HI., c. 2, sect. 38.* Georgen vs. McCarthy, S. R., p. 53. 2. The drawer of abill of exchange is liable to the damages provided by the laws of the country in which it is drawn, a^id no other. Asior vs. Benn et,ql., S. R., p. 69. * No longer in force. Vide infra Whitty vf. Rpurie, yo. Capjtas ; also Con. St. L. C, -cap. SI, seel. 7, s. s. 3. 44 BILL Bill op Exchange : — . . 3. By the usage of Canada, and in the absence of legislative enactment, all bills of exchange are allowed three days of grace after becoming due ; and to bind the indorsers, demand of payment ought to be made on the third day of grace, with protest and signification, and these formalities are to be observed even when the bill is made payable at residence of the holder himself. Knapp et al., and the Bank of Montreal, Q. B., 1 L. C. R., p. 252. 4. The acceptance of a bill of exchange, by the officer of a society, if not within the scope of his regular duties as such officer, is, unless specially authorized by the society, not binding upon it. Browning rs. The British Ainerican Friendly Society, S. C, 3 L. C. J., p. 306. 5. The secretary and accountant of the Montreal and Cham- plain Railroad Company has no power to accept drafts on behalf of the company, and moneys covered by such drafts may be seized by process of saisie-arre't notwithstanding such acceptance. Ryan et al., and the Montreal and Cham- plain Railroad Company, Q. B., 4 L. C. J., p. 38. 6. The holder of a Bill of Exchange through the drawer has an action against the acceptor. Rowbottom vs. Scott, S. C, L. R., p. 32. Bill of Lading : — 1. An affreighter cannot proceed by way of reven- dication as in the case of an unlawful detainer, against the master of a ship, when such affreighter and master cannot agree as to the quantity of goods shipped, and as to the bill of lading to be signed. Gordon et al., vs. Pollock, Q. B., 1 L. C. R., p. 313. 2. A clause in a bill of lading to the effect that the carrier may at his option, tranship at Quebec, and forward goods to Montreal, at ship's expense and mercJiant , s risk, does not relieve carrier from liability arising from negligence and want of care in handling and landing goods at Montreal. Samuel vs. Edmonstone et al., S. C, 1 L. C. J., p. 89.' 3. A bill of lading, as between the parties thereto, maybe explained by parole testimony. Fowler rs. Stirling et al., S. C, 3 L. C. J., p. 103. 4. The vendor of merchandize, who is named the consignor in the bill of lading, is nevertheless not liable for the freight of said merchandize, which he had delivered to vendee's agent before shipment according to contract and to the knowledge of the ship's agent. A bill of lading may be transferred by mere delivery, without endorsement, lb. -Vide Evidence. • " Freight. " Insurance. Bill of Particulars :— A plaintiff will be compelled to give parti- culars of demand, although the action be for the balance of an account acknowledged. Labbe vs. Mackenzie, C. C, 10 L. C. R., p. 77. But omission to file a bill of particulars, even where defendant is in gaol under capias, will not entitle defendant, under the 30th rule of practice, to dismissal of the action. Henderson vs. Enness, S. C, 2 L. C. J., p. 187. And a bill of particulars may be filed at enquSte, if defendant, instead of moving to dismiss plaintiff's action* BILL to BOR 45 Sill of Particulars : — pleads to the merits. Westrop vs. Nichols et al., S. C, 2 L. C. J., p. 194. And where defendant, after demand of plea, moves to dismiss action for want of particulars of demand, and plaintiff immediately moves to defer his claim to the serment decisoire of defendant, the plaintiff's motion must be granted and defendant compelled to answer. Lenfesty and Metivier, Q. B., 10 L. C. K., p. 199. Bon : — The amount of a bon payable on demand by a Lower Canada debtor to a foreign creditor, is recoverable with costs, without any proof of demand before institution, and although defend- ant tenders the amount of the bon with the plea. Shuter et al., vs. Paxton et al., S. C, 5 L. C. J., p. 55. * Bond : — In an action on a bond signed by an attorney whose autho- rity to sign the same is impugned by the plea, such plea must be supported by affidavit, under the requirements of the 87th section of the Judicature Act of 1857, 20 Vic, o. 44, [Con. St. L. C, cap. 83, sect. 86, s. s. 2.] The Attorney. General, pro Regina, vs. McPherson et al., C. C, 2 L. C. J., p. 121. But in a more recent case against the same defend- ants, the reverse was held, C. C, 2 L. C. J., p. 182. Books op Account : — Books of account, litres de creancer and papers belonging to defendant and in his possession are insaisissables. Fraser vs. Loisslle, S. C, 5 L. C. R., p. 299. " : — Vide Execution. Bornage : — 1. In an action en bornage, if the defendant, denies the plaintiff's right of action,, he will be condemned to pay costs. Weymess et al., and Cook, Q. B., 2 L. C. R., p. 486. But when a defendant pleads his willingness to bound and prays acte thereof, and the action has been brought without previous notice, the plaintiff will be condemned to pay costs. Slack and Short, Q. B., 2 L. C. J., p. 81. And so also where the defendant prays for the dismissal of the action with costs. Dansereau et al., vs. Prive, S. C, 1 L. C. J., p. 283. 2. An action en bornage cannot be defeated by the existence, during ten years and upwards of a mur mitoyen along a portion of the division wall, and of a fence along the remaining portion thereof. Macfarlane vs. Thayer, S. C, 2 L. C. J., p. 204. Nor will such action be defeated by the existence of a fence between the two properties during 20 years. Devoyau and Watson et al., Q. B., 1 L. C. J., p. 137. A cloture d'embarras is not evidence of a previous bornage. Lanouette et al., and Jackson, Q. B., 7 L. C. R., p. 362. 3. In an action en bornage where the plaintiff's title shewed that there was a deficiency in superficies of 2| arpents, while defendant's title shewed that his land was of a uniform width of 2 arpents, and where line fences and ditches had been run to a certain distance, the direction of such fences and ditches Will be followed, but so as to give * It is to be regretted that the Judge did not cite Some case in support of the alleged practice of the Courts which 'would seem to be in violation of the equity o( the rase. A man promises to pay £& r on demand, and the creditor 'who, chooses to make this demand by the expensive process of a suit at law, shall have his costs, there being no laches'on the part of the debtor! Is the distinction because the plaintiff: lives at N ew York— a courtesy to a foreign creditor fy . ; , ; ■ , ,, ' ,, .ill 46 BOR to BUI defendant his full Width of two arpents. Ldiftbert vs. Ber- trand, S. C, 3 L. C. J., p. 115. And where it is established by the surveyor's report that a wall or fence encroaches on the plaintiff's property, the defendant must pay the costs of the action ; hut the costs of the survey will be equally borne between them. Macfarlane vs. Thayer, S. C, 2 L. C. J., p. 204.. 4; In an action en borna'ge the defendant cannot be con- demned to compel his neighbours to bound with him. Fradet vs. Ldbrecque, S. C, 8 L. C. R., p. 218. " : — Vide Action Petitoirb. Bottomry : — Vide Interest. Breach of Promise of Marriage: — Vide Commencement de PREUVE PAR fiCRIT. Brevet : — Vide Promissory Note* Brevet d'Invention : — Vide Letters Patent. Broker : — 1. A broker assuming to be the mutual agent of bayer and seller, and accordingly signing bought and sold notes, will not be presumed in law to be such mutual agent from the mere fact of his being a broker ; and in the absence of suffi- cient evidence of his being authorized by both parties to sign such notes, they will not constitute a valid memorandum in writing within the Statute of Frauds. 1 Syme et al., vs. Heward, S. C, 1 L. C. J., p. 19. 2. In an action of damages for refusing to take delivery of and pay for goods, bargained for and sold through a broker, proof of the contract cannot legally he made, without the production of the bought as well as the sold note, or without due notice to the defendants to produce the bought note. Gould et al., vs. Binmore et al., S. C, 6 L. C. J., p. 296. Brothel : — Bent cannot be recovered by suit for premises leased as a house of ill-fame. Garish vs. Duval, C. C, 7 L. C. J., p. 127. Builder : — 1. A builder is liable for the vices du sol, owing to which certain houses constructed by him have given way, although working by plans and specifications under the directions of an architect in charge. Brown vs. Laurie, S. C, 1 L. C, R.,. p. 343. Confirmed in appeal. 5 L. C. R., p. 65. 2. A builder has a special privilege in the nature of an hypoth&que upon any building erected by him and for repairs. But this; privilege will not be allowed to the prejudice of the other creditors of the proprietor, unless within a year and a day, there be something enregistered to show the nature of the work done, or the amount of the debt due thereon. Jourdatn vs. Miville, S. R.,p. 263., And a builder is without such privilege on the proceeds of real estate, who has not complied with the formalities prescribed by the 4 Vic. c. 30,. sects. 31-2, (C. ■ Sfc.L.. C, pp. 352-3,) requiring s.prock- verbal to be made before the work is began to be done, establishing, the state of the premises in regard of the work about to be done ; requiring also a second procis-verbal to be m! t? ,-.T. R J IX months afte * *e completion of the work; establishing the increased value of the premises : redmritif also that the second procis-verbal establishing the acceptance of the work be registered within 30 days from the date of BUI to BY 47 Builder :— such second proch-verbal, in order txf secure such privilege. Clapin vs. Nagle and McGinnis, S. C, 6 L. C. J., p. 196. " :— Vide Bailleur de fonds. Building Societies : — 1. The right of convoking meetings connected with building societies created under the 12 Vic, c. 57, 14? and 15 Vic, c. 23, and 18 Vic, c. lift, [Con. St. L. C., cap. 69':} is vested in the president or secretary of such associa- tions, and the requisition should be addressed to the presi- dent and directors. This requisition should indicate the objects fur which the meeting is convoked. The 1st section of tlie IS Vic, c 116, has not abrogated the dispositions contained in the 7th section of the 12 Vic, c 57, [Con. St. L. C, cap. 69, sect. 7.] The by-laws of these associations should be registered in accordance with the 12 Vic, c. 57, sect. 5, [Con. St. L. C.,cap. 69, sect. 5.] 2. The directors' should be elected one by one, and not id block. 3. The president should preside at all these meetings, and it is while he so presides that the by-laws should be passed or altered. Jodain vs. Dubois, S. C, 3 L. C. J., p. 325. BY-law : — 1. A stockholder in a joint-stock company can bring an action of account against the corporation, and thereby con- test the validity of a by-law made by a board of its directors. Keys vs. The Quebec Fire Assurance Company, S. R., p. 425. 2. OH certiofariit was held that a by-law of the Corporation of Montreal concluding in the following words : li No person shall hereafter Construct afly wooden buildings of any sort or description whatsoever within the limits of the said city and any person infringing any of the provisions of- this section, shall be liable to a penalty, &c." must be so interpreted as to make it applicable only to proprietors of the lots or buildings and to workmen employed in erecting the same. Ex parte Lahaye et al., S. C, 6 L. C. R., p. 482. And so also in ex parte Ledoux, S. C, 8 L. C. &., p. 255, it was held that if there is no evidence sent tfp to the Court above that the pa'rty accused was a proprietor, or only a workman employed by the proprietor, the conviction will be quashed. 3. The legality of a by-law 1 maty be examined on a motion to quash a conviction predicated thereon. And. a by-law, imposing a penalty of jBSj arid imprisonment for 60 days, in default of payment, is in excess of an authority granted by statute to impose by by-law a penalty not exceeding £5, or 60 days imprisonment, and is therefore illegal. Ex parte Rri&ofphvs. The Harbour ComMssioners of Montreal prose- cutors, S. C.., 1 L. C.J., p. 47: 4. The by-law of the Corporation of Montreal affecting to impose a duty on the agents of Foreign Insurance Companies doing business there is riutf and void, the 14 & 15 Vic. c 12&, not having conferred that power. The Mayor, SfC. of the City of Montreal, and Wood, S. C, 3 L: C. J.» p. 230, and 9 f L: C. R. p. 449. 5. The sale of fresh porfcin a shop; in the city of Montreal, such shop 1 not being irt any public rBarfcet; is not a violation of the' by-law of the corpd*Moa df Montreal, Nc 196, of the 48 BY to CAP By-law : — 22d March, 1848, which imposes a penalty for the sale of such articles, " dans ou sur aucune rue, place, ruelle ou autre •place publique de cette cite, que sur un des dits marchis publics, etc." Exparte Daigle, Petioner for writ of certiorari, S. C, 5, L. C. J., p. 224, and 11 L. C. R., p. 289. Also in a case of Exparte Forest, No. 800, S. C, 29th June, 1861. By-road : — A by-road leading from a public road to a toll-bridge, must be made and maintained by the occupant of said toll- bridge, and in case of neglect on the part of such occupant, the municipal corporation, within whose jurisdiction the by-road lies, can recover from such occupant the amount paid by them in repairing the road. Corporation of the Parish of Ste. Rose vs Leprohon, S. C, 2 L. C. J., p. 118. Canonical decree: — Vide Certiorari. Capias : — 1. A party arrested under a capias will be discharged, if it be proved that the cause of action arose in a foreign country. Bottomley et al., vs. Lurrdey, S. C, 13 L- C R., p. 227. 2. And a debt for goods purchased in England, and paid. for by bills drawn upon defendant at Toronto, but payable at a bank in England, is a cause of action arising in a foreign country, within the meaning of the statute, lb. Confirmed in appeal. 3. A debt arising out of a contract made in Scotland to deliver passengers' luggage in the port of Montreal, and where delivery was not made, is not a cause of civil action which has arisen in a foreign country. Macdougall vs. ■> Torrance, S. C, 5 C C J., p. 148. Therefore a capias may be issued upon it. lb. 4. But the colony of Barbadoes is a " foreign country," within the meaning of the 8th sect. C. Sts. L. C, c. 87, and consequently a capias will not be maintained for a debt arising there. Trobridge et al., vs. Morange, S. C, 6 L. C. J., p. 312. " : — Affidavit. — 1. The sufficiency of an affidavit for a capiat cannot be tried on petition. Chapman vs. Blennerhasset, S. C, 2L. C. J., p. 71. 2. The words " plaintiff, book-keeper, clerk or legal attor- ney," in the 25 Geo. III., c. 2, [Con. St. L. C, cap. 87, sect. 1 J are not sacramental. An affidavit made by the cashier of a branch bank, plaintiff, is sufficient without taking any other quality. Coates and the Bank of Montreal, 2 Rev. de Leg., p. 328. And an affidavit for a writ of capias ad respon- dendum, made by the book-keeper of a branch of the Bank of Upper Canada, is sufficient. Bank of Upper Canada, vs. Alain, S. C, 5 L. C. R., p. 318. And it is sufficient that he should take the quality of book-keeper in the heading of the affidavit, without its being again mentioned in the heading of the affidavit. Hogan vs. Hoskins, S. C, 12 L. C. R., p. 84. 3. On the face of an affidavit for a capias, it is necessary to state all that is required to give right to the process, leaving nothing to be inferred. Nye vs. Macaslister, S. C, L. R., p. 27. So it must be mentioned in the -affidavit CAP 49 Capias where the debt was contracted. Brisson vs. McQueen, S. C, 7 L. C. J., p. 70. But it is not necessary to allege that defendant living out of the Province has property within it. Darling vs. Cowan, S. C, L. R., p. 105. And so it is neces- sary substantially to allege that the defendant is about to leave the Province, with intent to defraud, and not that such is plaintiff's belief. UHoist vs.JButts, S. C, 10 L. C. R., p. 204. And if the essential allegations be set forth in the disjunctive instead of the conjunctive, the affidavit will be held to be bad and the capias will be quashed. Talbot vs. Donnelly, S. C, 11 L. C. R., p. 5. 4. And the affidavit must contain the allegation of the personal indebtedness of defendant. Alexander vs. McLach- lan, S. C, 1 L. C. J., p. 5. 5. But it was decided at Quebec that where the affidavit shows a personal indebtedness, the allegation that the defendant is " personally indebted," is not essentially neces- sary. Lampoon vs. Smith, S. C, 7 L. C. R., p. 425. Nor is it necessary to say that without the benefit of such writ, the plaintiff may lose his remedy. Berry vs. May, S. C, 13 L. C. R., p. 3. And " of the city of Kingston, Canada West," is a sufficient indication of the domicile of plaintiff, lb. 6. The allegation in such affidavit that the defendant is personally indebted to the plaintiff for work done by the plaintiff for the defendant and for wages and salary earned in the service of the plaintiff, is sufficient, although it is not stated that the work was done at the instance and request of the defendant. Joutras vs. Dunlop, S. C, 7 L. C. R., p. 420. And so also it was held in the case of Macnamara vs. Meagher, S. C, 5 L. C. J., p. 49. But in this last case there was a further admission of indebtedness alleged. 7. An affidavit which only states that the defendant is indebted to the plaintiff in a certain sum, for board and lodging during six months and for articles of clothing furnished, is bad. Cuthbert vs. Barrett, S. C, 1 L. C. R., p. 212. And for goods damaged on board a ship, it is also necessary to state in the affidavit that they were so damaged before delivery, and while they were in the keeping of the defendant. Gale et al., vs. Brown, S. C, 3 L. C. R., p. 148. 8. And in an action by a livery-stable keeper f o recover £30, being £5 for four days hire of a horse, and £25 for the value of the horse which was not returned, by judgment on a motion to quash a capias issued in the case, it was held : that the refusal of the defendant, as alleged in the affidavit of plaintiff in this cause, to return the horse therein men- tioned, does not create a debt for the sum of £25, the alleged price of the horse, but only gives to the plaintiff a right to recover the said horse with the damages suffered in conse- quence of his detention, and for the value of the said horse as damages in case of his non-delivery after judgment. Dumaine vs. Guillemot, S. C, 6 L. C. R., p. 477. 9. An affidavit for a capias shows no legal indebtedness in alleging that the defendant is personally indebted to the plaintiff in the sum of j£150 currency, for the amount of the penal sum or penalty stipulated and specified in and by 50 CAP Capias : — his bond made and executed by the defendant, at Stanbridge aforesaid, on the 29th April, 184-3, conditioned and contingent, the said penalty upon his the said defendant giving to the said, deponent, one Sylvester J. Allen, a good and sufficient warranted deed of two lots described to be divided between them, notwithstanding the allegation of the division of the lots as agreed on, and the granting of a deed of one of the lots to Sylvester J. Allen, by the defendant, and that the defendant had been called upon and had refused to give a deed to plaintiff of the other lot, the right of the plaintiff being to obtain a deed, and in default thereof the sum stipulated as damages. Allen rs. Allen, S. C, 6 L. C. R., p. 478. 10. An affidavit for a capias which contains several different averments of debt, inconsistent with one another, is not void because one of them is insufficient. Green vs. Hatfield, S. C, 12 L- C. R., p. 115. 11. And in the affidavit setting up the cause of indebted- ness as being on a promissory note, it is not necessary to say where the note was made. Berry vs. May, S. C, 13 L. C. R.,p. 3. 12. A creditor for a sum under £10, may obtain an assignment of other debts due by the defendant, and sue out a writ of c 'pias ad respondendum for the amount due to him personally, and the amount assigned to him, if together they exceed .£10. Quinn vs. Atcheson, S. C, 4 L. C. R., p. 378. And such assignee may bring suit without having previously notified his deed to the debtor, lb. 13. It is insufficient to allege in the affidavit to obtain a capias that deponent is informed, and has reason to believe that defendant is about to leave the Province, without say- ing by whom he is informed. Perrault vs. Besive, S. C, L. R., p. 19. And so likewise the allegation that deponent has been credibly informed that the defendant has secretly removed his goods in the night-time with intent to defraud his creditors, is not sufficient, unless the name of the party, from whom the information was obtained, is disclosed. Cornell vs. Merrill, S. C, 1 L. C. R., p. 357. But it is sufficient if it be alleged that defendant himself had said that he was about to leave the Province. Benjamin et al., vs. Wilson, S. C, 1 L. C. R., p. 351. 14. The allegations that defendant has taken away goods placed with the plaintiff as security for the payment of a note, and that he has refused to deliver a horse, that he is a stranger and has failed to keep his appointments, and that he has withdrawn himself from his creditors, are not suffi- cient to justify the issuing a writ of capias ad respondendum under the 12 Vic, c. 42, [C. Sts. L. C, c. 87.] Leemin'gvs. Cochrane, S. C, 1 L. C. R., p. 352. But the allegation that defendant had sold his saw-mill and all his wood and was keeping his moveable property and himself concealed, is sufficient. Perrault vs. Desive, S. C, L. Li., p. 19. 15. The omission in such affidavit of the words "with intent to defraud his creditors generally, and the defendant in particular," is fatal. Lamarche vs. Lebroeq, S, C, 1 L. C. CAP 51 Capias : — ILj p. 215. And so also it was held in Wilson vs, Ray, S. C„ 4 L. C. R., p. 159. But in such affidavit the words " may lose his said debt or sustain damage," are equivalent to the allegation that " he may be deprived of his remedy." Zampsonvs. Smith, S. C, 7 L. C. E-., p. 425. And so also in the case of Hasset vs. Mulcahey, it was held that the substitution of the words " that without the benefit of a writ of capias, the creditor will lose his debt or suffer damage," for the words " will lose his remedy," is not fatal. 6 L. C. R, p. 15. And in case of Tetu vs Pelletier, S. C, 6 L. C. R., p. 32, it was held that it was not necessary in such affidavit to swear that the plaintiff, without the benefit of a capias ad respondendum against the body of the defen- dant, may be deprived of his remedy. And so also in Leliivre vs. Donnelly, ib., p. 247. Or that he will suffer damages and lose his debt. Doutre vs. McGinnis, S. C, 5 L. C. J., p. 158. 16. And where the cause of the taking out a capias is for deterioration to real estate hypothecated, under cap. 47, C. Sts. L. C, it is not necessary to allege that the damage was wilfully done, if it appear that it was not done by accident or in the ordinary course of events, lb. And in the affidavit it is not necessary to ask for tttapias, the fiat suffices, lb. 17. An affidavit for a capias on the ground that defendant has secreted his effects, is not sufficient, if the reasons for the belief be that he is insolvent, and that he went to Rimouski and was carrying on business there, and that he did not make an assignment of his estates to his creditors. Hamel etal., vs. COte, S. C, 11 L. C. R., p. 446. 18. An affidavit stating that the deponent's grounds for belief that the defendant is about to leave the Province with intent to defraud his creditors, are, that the defendant's vessel is loaded and ready for sea, that he, the defendant, intends sailing in her, and has told deponent that he would not return to Canada, is sufficient. Wilson vs. JReid, S. C, 4 L. C. R., p. 157. Also an affidavit is sufficient in which it is stated that deponent's grounds for believing that the defendant is about to leave the Province, with a fraudulent intent, are, that the defendant has no domicile in the Pro- vince, that he is a seafaring man about to leave the Province with his vessel, and may never return, and that he has made no provision for the payment of the debt. Berry vs. IHxon, S. C, 4 L. C. R., p. 218. And an affidavit wherein it is stated that the reasons for believing that the defendant is about to leave the Province with a fraudulent intent, are, that the defendant is the master of a vessel, which vessel is loaded and ready to go to sea" with the defendant as master, and that the defendant himself has stated that he was imme- diately about to sail to parts beyond the sea, is sufficient. Quinn vs Afcheson, $■ C, 4 L. G. J.I., p. 378. Also an affidavit was held to contain sufficient grounds for the belief of the defendant's depariure, with a fraudulent intent, which stated that the defendant refuses to pay the sum sworn to be due ; that the vessel of which he is master is immediately about to sail for Europe, and that the 52-" CAP Capias : — defendant is to sail therein. Lefebvre vs. Tvilock, S. C, 5- L. C. R., p. 42. And so also in the case of Hassett vs. Mulcahey, S. C, 6 L. C. R., p. 15. And in another case of Macdougall vs. Torrance, S. C, 5 L. C. J., p. 148. And in other case in which the affidavit set forth that the defendant was about to go to his original domicile, Scotland, where his family had resided for five years, without paying plaintiff the balance, and without leaving any property in Canada out of which the plaintiff could get paid, and after repeated applications had been made to him for payment. Ross et al., vs. Burns, S. C, 7 L. C. J., p. 35. 19. And it is not necessary in such affidavit to state that the defendant has been requested to pay the debt and refused so to do. But in an affidavit for a capias, the allegation that the defendant, who resides at Rouse's Point, in the United States, is upon the point of immediately leaving the Province to go to the United States, and giving the names of the deponent's informants, discloses no intention of fraud, and is insufficient. Larocque vs. Clarke, S. C, 4 L. C. R., p. 402. Also L. R., p. 67. 20. For the grounds of belief that are sufficient under 22 Vic. c. 5, sec. 48, [C#n. Stat. L. C, cap. 87, sect. 9,] vide Macfarlane vs. Belliveau, S. C, 9 L. C. R., p. 261. And an affidavit to hold to bail, under the 22 Vic. c. 5, sec. 48, [Con. St. L. C, cap. 87, sect. 9,] which does not disclose the grounds of the allegation, " that the defendant is not a trader, and that he is notoriously insolvent, and has refused to compromise or arrange with his creditors," and omits the allegation, that he has refused to make a cession de Mens, to them, is bad, even though it be alleged, as required by the 12 Vic. c. 42, [Con. St. L. C, cap. 87, sect. 1,] that " he has secreted his estate, debts and effects, with intent to defraud, &c," and the capias issued in virtue hereof, will be quashed on motion. Warren et al., and Morgan, Q. B., 9 L. C. R., p. 305. 21. A petition under the 12 Vic. c. 42, sec. 8, [Con. St. L. C, cap. 87, sect. 18,] alleging that the defendants had, after the institution of the action, and before the making of the statement filed therein, as well as within thirty days next preceding the institution of the action, secreted a large portion of their property, exceeding in value .£2,000, with the intent to defraud their creditors, namely, that at the city of Quebec, during the year 1856, and the fall of the year 1855, while they, the defendants, were well known to be in a state of insolvency, made over clandestinely for cash, and money securities convertible and converted into cash by them, to divers persons, among others to Freer Jacobs and others, their stock in trade, with the express intent to cheat and defraud their said creditors ; and lhat they did by such means cheat and defraud plaintiffs and other creditors, was held sufficient on demurrer. Foster et al., vs. Dorion et al., S. C, 8 L. C. R., 152. 22. And a fraudulent sale or transfer of real estate was held to be sufficient to maintain a capias. Langley vs. Chamberlain, S. C, 5 L. C. J., p. 49. CAP 53 Capias : — 23. The alienation of real estate alone, is not a sufficient cause for the issue of a capias ; but when a debtor alienates his estate, and delares that he received for it a less sum than he actually received, there is an intention on his part to deceive his creditors, if he has no other property to meet his liabilities, and an affidavit containing such allegations will be sufficient to maintain a capias. Dumont vs. Gourt, S. C, 7L. C. J., p. 119. 24. Fraudulent preferences to creditors by a defendant after insolvency, form no grounds for capias. The defend- ant's intention to go to Boston, and the fraudulent preference he had shown to other creditors, and his treatment of the plaintiff 's agent when he called upon him to make an assignment, by telling him not to bother him, were circum- stances sufficiently strong to shew that his intention was to defraud the plaintiff. Tremain vs. Sansum, S. C, 4 L. C. J., p. 48. As to sufficiency of allegations in affidavit for capias. Tessier vs. Pelletier, S. C, 5 L. C. R., p. 422. 25. A capias cannot be quashed by motion on the ground that the reasons of belief set forth in the affidavit, do not specifically allege any fraudulent intent on the part of the defendant. Henderson vs. Enness, S. C, 2 L. C. J., p. 186. 26. Although the special grounds of belief set out in a capias ad respondendum, to the effect that the defendant is immediately about to leave the Province with fraudulent intent be disproved, yet if it be proved that the plaintiff's* apprehensions as to defendant's intended departure with fraudulent design were founded, the capias will be main- tained. Blacketisee. vs. Sharpley, Q. B., 6 L. C. J., p. 288, and 10 L. C. R., p. 240. 27. On a petition to set aside a writ of capias ad respon- dendum, on the ground that the statement of facts sworn to in the affidavit is untrue, the onus probandi is entirely on the defendant to prove that what is sworn to is false. Egert et al., vs. Laidlaw, S. C, 7 L. C. J., p. 227. 28. In case of an irregularity in suing out a capias ad respondendum, a motion to discharge the defendant from the sheriff's custody, for want of a sufficient affidavit to hold to bail, and not an exception a la forme, is the mode of taking advantage of such irregularity. Barney vs. Harris, S. R., p. 52. Also Vide Paterson vs. Hart, S. R., p. 52 in note. 29. Sufficient notice of a petition for discharge from a capias is given if it be served on Saturday between 4 and 5 p. m. for Monday morning. Trobridge vs. Morange, S. C, 6 L. C. J., p. 312. 30. A cvpias cannot be quashed by a petition in vacation. Hogan et al., vs. Gordon, S. C, 2 L. C. J., p. 161. 31. A petition for discharge from arrest under capias, may be made even after issue joined. Chapman vs. Blenner- hasset, S. C, 2 L. C. J., p. 71. But not after final judgment in the suit. Hogan et al., vs. Gordon, S. C, 2 L. C. J., p. 162. * # Doubtless is meant if the capias be taken out before final judgment. 54 CAP Capias : — 32. A capias may issue as well after as before judgment. Gale vs. Allen, S. C, 3 L. C. B., p. 456. But in Pelletier et al., vs. Freer, Stuart, J. thought that it was doub'ful whether an action could be brought oh a judgment of a court here and held, quashing the capias, that it could only be main- tained on proof of the allegation that defendant was about to leave the Province with intent to defraud his creditors.. S. C., 12 L. C. E„ p. 199. 33. A capias will be quashed if the cause of. action set iforth in the declaration vary ftom that set forth in the affidavit. Mailiot vs. Sernier, S. C, i L. C. B., p. 389. But pendente lite, a reference to the declaration filed in the cause for the nature of the debt is sufficifeUt. Malo vt. Ldbelle, S. C, 2 L. C. J., p, 194. 34. When a party is arrested for concealing his goods, the capias will be quashed if it appears that the goods concealed belonged to his wife. Gendron vs. Lemieux and Lemieuz, S. C, 12 L. C. E., p. 222. 35. An affidavit for a capias in which the creditor's name is given as " Joutras," is good, although in the declaration it be written " Justras." Joutras vs. DyMop,, S. C, 7 L. C- E., p. 420. 36. An action, commenced by a capias, is unaffected by the quashing of the capias, arid this, notwithstanding that the amount demanded does not exceed j£l5. Elwes vs. Francisco, S. C, 1 L. C J., p. 188. 37. The plaintiff may be ruled and compelled to return his action into court before the return day, if such action be commenced by a capias ad respondendum. Kelly vs. Horan,. S. C, 1 L. C. E., p. 143. And so also in Mackie vs. Cox, S. C, L. E., p. 44, the delay to answer process being estab- lished in favor of the defendant. 38. Under the Judicature Act, 12 Vic. c. 38, sect. 63, [Con. St. L. C, cap. 83, sect. 6,] a writ of capias ad respondendum, signed, " F. H. Marchand," " Clerk of the Circuit Court," attested with the seal of the Circuit Court, St. Johns, returnable into the Superior Court, headed ia the margin, " in the Superior Court," is irregular, such not being a writ ih the Superior Court as required by the Judicature Act. Hitchcock is. Meigs, ,S. C, 6 L. C. E.,p. 175. 39. The 2 Geo. IV., c. 2, requiring that the plaintiff, residing in Upper Canada, before obtaining a capias, should swear that his debtor also residing in Lower Canada, has no property there, out of the proceeds of which he can reasonably expect to be paid, is virtually repealed by the 8 Vic. c. 48, and 12 Vie. e. 42, which are general laws- applying to both sections of the Province. Whitby vs. Rourke*, S. C. 3 L. C. E., p. 100. 40. Imprisonment under the 8th section of the 12th Vic. c. 42, [Con. St. L. C, cap. 87, sect. 18,] can only be effected after personal service of the judgment and notice, therein referred to, on the defendant. Benjamin et al., vs. Wilson, S. C, 1 L. C. J., p. 4. CAP 55 Capjas : — 41. A defendant arrested under capias, at suit of different creditors, is entitled to an alimentary allowance from each plaintiff, and tender of such allowance in English silver ; coin defaced (by bending or stamping) is illegal. Warner vs. Fyson, Crawford is. Fyson, Merritt vs. Fyson, S. C, 2 L. C. J., p. 105. Nor can such alimentary allowance be paid in American gold dollars. Bruneau vs. Miller, S. C, 2 L. C. J., p. 189. 42. A party who has been illegally arrested, and the capias qutrshed, must be fully at liberty before he is arrested anew at Jthe suit of the same party, and a re-arrest entre deux guichets, is an arrest in the custody of the gaoler. Hamel vs. •Cdte, S. C, 11 L. C. R., p. 479. 43. The bond given to the sheriff is null if it contains the clause that the party shall give special bail on the day of the return, and not before or after judgment. The decease of the defendant before judgment, liberates bail. Raymond vs. Walker, 3 Rev. de Leg., p. 297. 44. The liability of the bail to the sheriff on a writ of capias ad respondendum, is for the amount endorsed on the writ, and no more. And where the sheriff has taken bail for double the amount of the debt sworn to in the affidavit, and the plaintiff has afterwards obtained a judgment for a larger amount, the liability of the bail cannot be extended beyond the amount sworn to in the affidavit, and endorsed on the writ of capias. An assignment by the joint-sheriff, under their customary signature, and in the form used in England, is a good assignment. A motion by the defendant to be permitted to put in special bail for the amount sworn to, and endorsed on the writ, which motion was rejected, is not a sufficient compliance with the writ so as to relieve the bail to thesheriff. Torrance et al., vs. Gilmour et al., S. C, 2L. C. R., p. 231. 45. The plaintiff in an affidavit for a capias gave as the grounds of his belief: " that he was this day informed by A and B, that the defendant has all his goods packed for a start from Canada, and that he will leave the said Province to-morrow, and will not return again, and that he so intends leaving with the fraudulent intent as aforesaid/' On a petition for release, A and B examined on defendant's behalf, slated that they only said he was going to New York. In cross-examining defendant's witnesses, plaintiff went into other matters, and such proof was held admissible, the plaintiff not being held to the precise matters set up in his affidavit. Blaftkemee and Sliarpley, Q. B., 10 L. C. R., ,p. 240. " 46. That "makelh oath and saith," imports that the depo- nent has been sworn, and it is not necessary to say " having been duly sworn, maketh oath and saith." Berry vs. May, S. C, 3 L. C. R., p. 3. " At Quebec." shows sufficiently where deponent has been sworn, lb. The day of the month and the year may be written in figures, lb. 56 CAP Capias : — 47. But where an affidavit is said to be " sworn at the city of Montreal," without " before us," it is bad. Heugh et al., vs. Ross et al., S. C, 13 L. C. R., p. 32. Confirmed in appeal. " : — Vide Appeal. " : — " Minor. Capias ad satisfaciendum: — 1. No capias ad satisfaciendum" ean issue on a judgment obtained by the payee against the drawer of a promissory note, although payable to order, the parties not being merchants or traders, and the note not purporting to be for value received in goods, wares or mer chandize. Herald vs. Skinner, P. R., p. 1. 2. In the case of Mercure and Laframboise et al., Q. B,, 5 L. C. R., p. 168, it was held, that a contrainte par corps by capias ad satisfaciendum, in the case provided for by the 37th section of the Ordinance of 1785, 25 Geo. Ill, c. 2, f has not been affected by the 12 Vic. c. 42, and that such capias therefore may issue against a debtor refusing to open his doors to the bailiffcharged with a writ ofexecution against him and even where no force or violence was used. Desharnais vs. Amiot, C. C, 4 L. C. R. p. 43. And the return of the bailiff is sufficient ground for the issuing of the writ {Mer- cure and Laframboise'), though probably, not sufficient to justify a condemnation, as in the case of KempX vs. Kemp% S. C, 2 L. C. J., p. 280, it was held that the Sheriff's return to a writ ofexecution to a like effect was not, and an appeal lies from the judgment allowing such contrainte par corps, in like manner, as from any other judgment from which an appeal is granted. And in the case of The Bank of Upper Canada vs. Kirk, S. C. 6 L. C. R. p. 462, it was held that by the statute 12 Vic. c. 42, execution against the body by writ of capias ad satisfaciendum had been abolished, t [Con. St. L. C. cap. 87, sect. 7, s. s. 3.] 3. A capias ad satisfaciendum (so called in the report) will issue on proof by plaintiff, in an action begun by process of capias ad respondendum, that defendant under bail has * Abolished by 12 Vic. c. 42, ». 2, Con. St. L. C. cap. 87, sect. 7, s. s. 3. f Con. St. L. C. cap. 83, sect. 143, — It is by error that this contrainte par corps is called a. capias ad satisfaciendum. And although now classed in the Consolidated Statutes as ax .xeculion, it is evidently nol so, otherwise it would be an absolute contradiction to ss. 3, sect. 7. of'the cap. *7, Con. St., which says, " No writ of capias ad satisfaciendum,^ other execution against the person shall issue or be allowed. " The effect- of this contrainte may be similar to that of an execution against the person, but strictly speaking it is not one, but a special punishment for a grave contempt, and it is specially reserved for the operation of the list cited clause by section 21. But is not sect. 143, Con. Sts L. C. cap. 83, in contra- diction wiih sect. 2, 12 Vie. c. 42, at least in so tar ns regards effects already secreted 1 But the cap. 87 sect. I, C. Sts. L. C. does not reproduce textually the 12 Vic. e. 42, sect. 2. .Nevertheless it may he maintained that without affidavit, but on clue proof, a defendant who has secreted his edicts may be taken and detained in prison until he satisfies the judgment against him. J The report, which is very short and unsatisfactory, evidently is that of a case where this process wn« used in an action for debt ; for the 12 vie. no where alludes to the case of the Ord. of 1785, improperly in Mercure and Lnframboise called a capias ad satisfaciendum. In the 1st motive of the judgment, as all through his remarks, the Chief Justice adheres to the correct expression of a amJrainte par corps. The case of The Bank of XT. C. vs. Eiri, cited above shows h'W inconvenient is the confounding of "the terms, it results then that the capias ad satisfaciendum, properly so called, is abolished by the 12 Vie , but not so the contrainte par corps for rebellion a justice, a high species of contempt at all times reproved by our 1 1 w. And it would seem that for defendant to stcrete his effects is a rebellion & justice. Yi le Ord. Civ. til. six, arts. 16 and 17, ' CAP to CAR 57 Capias : — not filed in the Prothonotary's office, a statement under oath of all his credits, property and effects, and such de- fendant -will be imprisoned for such space of time, not exceeding a year, as the Court, in its discretion, shall determine. Defendant need not have notice of the petition for such process. Macfarlane vs. Be/iveau, S. C, 4 L. C. J., p. 357. " : — Vide Bill of Exchange. Carriers: — 1. Common carriers are liable for all losses and damage except that occasioned by the act of God and by the King's enemies and by inevitable accident and vis major. Proof, to the effect, that the goods placed by the plaintiff in the cus- tody of the defendant were destroyed by a fire which could not be accounted lor otherwise than by the presumption that it was the result of spontaneous combustion, does not consti- tute inevitable accident or vis major. Proof that the defendent had previous to and at the time of the fire posted up in all the company's stations, with other printed con- . ditions, a notice that the company would not be responsible " for damages occasioned by delays from storms or unavoid- able cause, or from damages from fire, heat, &c," that a similar notification and similar conditions were printed on the back of the company's advice notes to consignees as to the arrival of goods, and that the plaintiff had been seen on a previous occasion reading such condition and notification, does not constitute an agreement between the plaintiff and defendant, that the goods in question were to be carried on these terms, particularly in the face of an unconditional re- ceipt given by the company for the goods as in the present case. And a common carrier will not be exempted from liability even where such an agreement is proved if he be guilty of negligence. Huston vs. The Grand Trunk Railway, S.C., 3 L. C. J., p. 269 ; confirmed in Appeal, 6 L. C. J. p. 173. And a clause in a bill of lading to the effect that the carrier is not liable for " leakage, breakage and waste," does not re- lieve him from liability arising from negligence. Harris Sf al. v. Edmondstone Sf al., S. C, 4 L. C. J. p. 40. But a com- mon carrier may limit his liability by conditions inserted in the bill of lading ; and if he receives goods on board his lighter he is not liable for the loss arising from a delay in transhipment, owing to a short shipment of goods, where the bill of lading contained a clause that, if from any cause the goods did not go forward on the ship, the same should be forwarded by the next steamer of the same line. Torrance 8f al. v. Allan, S. C, 6 L. C. J. p. 190. 2. In case of damage the carrier is bound to prove that the damage is within the exceptions of the bill of lading. Ga- herlyvs. Torrance Sf al. and E. Cont/ct, S. C, 4 L. C. J. p. 371. 3. Salt ought not to be carried on deck between Quebe© and Montreal, unless there be a special permission to that effect, lb. This case went to Q. B., where it was held : 1st. That in general, a consignee who complains of short delivery or damage of goods ought at once to protest, in order that the disputed facts may be investigated ; "58 CAR Carriers : — 2nd. That, in general, a survey ought to be had, without delay, upon goods delivered in a damaged state, and this after notice to the parties interested, especially in cases where the consignee intends to retain the goods ; 3rd. That the burden of proof was on the bailee to show that the daitoage was occasioned by the dangers of naviga- tion. 6 L.C.J, p. 313. 4. The owners of riVet craft are responsible for losses occasioned by their own want of Care, attention or experi- ence, or of that of their servants. Some v. Perrault L. C. J. p. 132, the captain of a ship was held liable for jewellery which had been stolen from a lady's trunk on the voyage. But in another case of Macdougall v. Allan 8f al., on an action for damages by a lady passenger for goods snipped in the hold of the vessel and not delivered at the port of destination, a plea to the effect that the loss happened without any fault or privity on their part, but by reason of robbery, embezzlement or secret- ing thereof, that the plaintiff did not insert in the bill of lading, or in any way declare in writing to the master of the Vessel, the true nature and value of the articles, was held good on demurrer, S. C, 12 L. C. R. p. 321. 5. And the liability of a common carrier for a quantity of wheat on board a barge, established by an acknowledgment of its receipt in writing, cannot be affected by parol evidence that the barge was not his and that he acted only as agent. Syme Sf al v. Janes $■ al., S. C, 2 L. C. J. p. 169. 6. And in an action against a carrier for goods lost, if he decline swearing to the value of them, the Court will submit the matter to the serment decisoire of the plaintiff. Hobbs v. Senecal Sf al., S. C, 1 L. C. J. p. 93. But in a case in the Circuit Court, it was held that the owner of a trunk which has been lost by the negligence of a common carrier may, in a suit against the carrier, prove by his own oath, ex neces- sitate rei, the contents and value of the articles therein contained. Robson v. Hooker fy al., 3 L. C. J. p. 86. Also ill a case of Cadivallader v. The Grand Trunk Railway Com- pany, S. C, 9 L. C. R. p. 169 ; and so also for the contents CAE to CER 59 Carriers : — of a trunk which had been broken Open. Macdougall v. Torrance, S. C, 4. L. C. J. p. 132. But where notice of the deficiency of goods has not been given to the carrier till several months afterwards, he is not responsible. Swinburne v. Massue if al., S. R,., p. 569. . 68. Belanger, lb., p. 31. Botineau, lb., p. 3. Boyle, lb., p. 66. Gould, lb., p. 73. Landry, lb., p. 3. Moquin, lb., p. 84. Trudeau, lb., p. 66. Veroneau, lb., p. 79. Cession : — In default of a vendor making cession of letters patent to a purchaser in the terms of an agreement between them, to the effect that the purchaser should obtain such letters patent in the name of the vendor, the court will give a judgment to have the effect of such cession as if a sufficient deed had been passed to that effect, and the judgment will have the force and effect which such a deed would have had, and will invest the purchaser with all the rights, title, interest and property which he could have acquired by such deed. Leblanc et Pelerin, Q. B., 7 L. C. J., p. 113. " : — Vide Langlois et al, v. Verret, 2 Rev. de Leg., p. 177. Church: — Vide Conviction. Churches : — 1. The commissioners appointed under the Ordinance 2 Vic. c. 29, and the subsequent statutes on the same sub- ject, in what respects the building of churches, parsonage houses, Sea., form a special tribunal exercising judicial authority within certain limits. And an acte de repartition duly homologated by such commissioners, is prima facie evidence of its contents, at least until the t contrary is proved. The right of appeal in suits for the recovery of amounts levied for defraying the expenses of building, has been. CHU to CIV 63 Churches :— allowed and exercised. Reniire and Millette, Q. B., 5 L. C. R., p. 87. But in the case Ex parte Lecours, the S. C. held that the powers of such commissioners were not judicial powers subject, to its revision on certiorari, 3 L. C. R., p. 123. 2. The Circuit Court cannot take cognizance of the nullities of a cotisation rdle for the building of a church owing to the omission of rate-payers and fraud on the part of the syndics. The Circuit Court must give judgment against the rate-payers according to the rdle. The Syndics of the Parish of St. Norbert, vs. Pacaud, C. C, 6 L. C. J., p. 290. And in ex parte Boucher and Dessaulles et of., Corns., and Langellier et al., Syndics, it was held that there was no appeal, and that the only way to proceed was by certiorari. But the refusal to admit the evidence offered by the oppo- sants, and the fact that illegal evidence had been admitted - by the syndics, is not an excess of jurisdiction, and a writ of certiorari granted for such reasons will be set aside. S. C, 6 L. C. J., p. 333. " : — Vide Agrici/lt ural Act. " : — " Certiorari. Church op England : — A clergyman of the Church of England, in a parish where there is a consecrated burial-ground cannot be compelled to perform the service in a place that has not been consecrated or set apart for burials by the authorities of that church. Exp. Wurtele, S. C, L. C. R., p. 414. Circuit Court : — 1. The Circuit Court, sitting in any given circuit, has jurisdiction in actions, the cause of which has arisen within the limits of such circuit, although the defendants reside in a district other than that in which such circuit is situate, and have been served with process in such other circuit. Hardy et al., v. Trothier et al., S. C, 1 L. C. R., p. 286. 2. The Circuit Court will declare a by-law to be invalid while judging on the merits of the judgment of an inferior tribunal. Daoustvs. Aumais, S. C, 7 L. C. J., p. 110. " : — Vide Appeal. City Councillor : — Being a householder for twelve months before election, is a necessary qualification for the office of City Councillor, and the candidate who has received the greatest number of votes, not being so qualified, may be unseated of his office, and the candidate having the next greatest num- ber of votes may be seated in his stead. Lynch vs. Papin, S. C, L. R., p. 109. Civil Death : — 1. A party condemned to death by the court martial which sat in Lower Canada in 1839, and subsequently pardoned, cannot ester enjugement, or revendicate his pro- perty forfeited by reason of his attainder. Rochon vs. Leduc, S. C, 1 L. C. J., p. 252. 2. A person confined in the Provincial 'Penitentiary, under a conviction for forgery, is not mortuus civiliter, and a signi- fication of a transfer during that period on his wife is valid. Rowell vs. Borah, S. C, 2, L. C. J., p. 208. ** : — Vide Communaute. 64 CODE to COL Codh Marine : — The code marine, even if it ever was in force, was no part of the common law of Canada, but a part of the public law, and consequently superseded by the effect of the conquest ; and if it was law in the admiralty jurisdiction alone, whether public or common law, it was abolished by the introduction of English Admiralty law. Baldwin vs. Gibbon, S. R., p. 72. Coins : — Vide Currency. Collector of Customs : — Vide Notice of Actions. Collision: — 1. The Court of Vice-Admiralty exercises jurisdiction in the case of a vessel injured by collision in the River St. Lawrence near the city of Quebec. Howard vs. The Camillus, S. R., p. 158, and Ritchie vs. Orkney et al., S. R., p. 613, and S. V. A. R., p. 383. 2. There are four probabilities under which a collision may occur : a. It may occur from the fault or misconduct of the vessel suffering from the collision ; b. Or the accident may have happened from unavoidable circumstances, without fault on the part of either vessel ; c. Or both parties may be to blame, as where there hat been a want of skill or due diligence on both sides ; d. Or the loss and damage may be owing to the fault or misconduct of the vessel charged as the wrong-doer. In the first two cases, no action lies for the damage arising from the collision. In the third case, the law apportions the loss between the ' parties, as having been occasioned by the fault of both of them. In the fourth case, the. injured party is entitled to full compensation from the party inflicting the injury. The Cumbe/land, p. 75, S. V. A. R. The Nelson Village, p. 156. lb. 3. Owners of vessels are not exempt from their legal responsibility, notwithstanding that their vessel was under the care and management of a pilot. The Cumberland, p. 75, S.V.A.R. 4. Ship held liable for collision, notwithstanding there being a pilot on board. The Lord John Russell, \>. 190, S. V. A. R. 5. The circumstance of having a pilot on board, and acting in conformity with his directions, does not operate as a discharge of the responsibility of the owner. The Creole, p. 199, srV.A.R. 6. But when a collision is occasioned by the mismanage- ment of a pilot, placed on board or in charge according to law, enforced by a penalty, the vessel is not liable, and the mode, time and place of bringing a vessel to anchor is within the peculiar province of such pilot in charge. Tlie Lotus- Clark, 11 L. C. R., p. 342. And where the pilot is in fault, it is the practice of the Admiralty Court to give no damages on either side. lb. 7. A pilot act which obliges vessels going out or coming into port to receive a pilot, under a penalty or forfeiture of half pilotage, is not compulsory but is optional. The ship need not take a pilot if it prefer to pay the penalty or forfeit- ure. The Creole, p. 199, S. V. A. R. COL 65 Coliision : — 8. In cases of collision arising from negligence or unskil- fnlness in management of ship during the injury, the pilot having the control of the ship is not a competent witness for such ship, without a release, although the master is. The Lord John Russell, p. 190, S. V. A. R. 9. In a cause of collision, where the loss was charged to be owing to negligence or want of skill, the Court, with the assistance of a captain in the Royal Navy, being of opinion that the damage was occasioned by accident, chiefly imput- able to the imprudence of the injured vessel and not to the misconduct of the other vessel, dismissed the owners of the latter vessel, with costs. The Leonid is, p. 226, S. V. A. R. 10. Where it appeared that the coliision was the effect of mere accident, or that over-riding necessity which the law designates by the term vis major, action dismissed, with costs. The Sarah Anne, p. 294, S. V. A. R. 11. Where both parties are mutually blameable in not tnking measures to prevent accidents, the rule is to apportion equally the damages between the parties, according to mari- time law, as administered in the Admiralty Court, lb. 12. Vessel giving a foul berth to another vessel, liable in damages for collision done to the vessel to which such foul" berth was given by her, although the immediate cause of the collision was a vis major, and no unskilfulness or mis- conduct was imputable to the offending vessel after giving such foul berth. The Cumberland, p. 73, S. V. A. R. 13. Where one ship is at anchor, it augurs great want of skill and attention, in a harbour like that of Quebec, for a ship under sail to be so brought-to as to arun foul of her. The Lord Lohn Russell, p. 190, S. V. A. R. 14. Damages awarded in case of a collision in the harbour of Quebec, lb. 15. In acase of collision against a ship for running foul of a floating-light vessel, the Court pronounced for damages. The Miramiehi, p. 237, S. V. A.R. In such a case the pre- sumption is gross negl igence or want of skill, and the burthen is cast on the shipmaster to repel the presumption. lb. 16. Vessels are required of a dark night lo show their position, by a fixed light, while at anchor in the harbour of Quebec ; and the want of such light will amount to negli- gence, so as to bar a claim for any injury received from other vessels running foul of them. The Mary Campbell, p. 222, S.V.A.R. 17. The omission to have a light on board in a river or harbour at night amounts to negligence, per se. The Dahlia, p. 242, S.V.A.R. 18. By-law of the Trinity House of 12th April, 1850, requires a distinet light in the fore-rigging " during the night.'* The Mary Campbell, p. 222, S. V. A. R. 19. The regulations of the Trinity House require a strict construction in favour of their application. The Dahlia, p. 242, S. V. A. R. Having a light on board in such case is an indispensable precaution, lb. 5 66 COL Collision : — 20. By-laws of Trinity House respecting lights, not abro- gated by desuetude or non-user. The Mary Campbell, p. 222, S.V.A.R. 21. Every night in the absence of the moon is a dark night in the purvit w of the Trinity House regulations of the 28th June, 1805. The Dahlia, p. 242, S. V. A. R. More credit is to be attached to the crew that are on the alert than to the crew of the vessel that is placed at rest. lb. 22. In a case of collision between two ships ascending the River St. Lawrence, the Court, assisted by a captain of the Royal Navy, pronoui ced for damages, holding, that when two vessels are crossing each other in opposite directions, and there is doubt of their going clear, the vessel upon the port or larboard tack is to bear up and heave about for the vessel upon the starboard tack. The Nelson Village, p. 156, S.V.A.R. 23. Two steamers were coming from Montreal to Quebec, and when opposite the city of Quebec the one took the course usual on such occasions and passed down below the lowermost wharf, at the mouth of the River St. Charles, where she turned, to stem the tide and come to the wharf at which she was to land her passengers ; and the other did not descend so low, but made a short and unusual turn, with the intention of passing across the course of the former and ahead of her, after she had turned and was coming up against the tide : Held,— That the collision complained of resulted from a rash and hazardous attempt on the part of those on board of the steamer which made such short and unusual turn to cross the course of the other, contrary to the usual practice and custom of the river and the rules of good seamanship, for the purpose of being earlier at her wharf. The Crescent, The Rowland Hill, p. 289, S. V. A. R. Manoeuvres of this dangerous kind, which might, in a crowded port like that of Quebec, result in the most serious loss of property and of life, ought to be discountenanced. 3. 24. In a cause of collision between two steam-vessels, the Court, assisted by a captain in the Royal Navy, pro- nounced for damages and costs, holding that the one which crossed the course of the other was to blame. The By town, p. 278, S. V. A. R. 25. The general rule of navigation is, when a ship is in stays, or in the act of going about, as she becomes for the time unmanageable, it is the duty of any ship that is near her to give her sufficient room. The Leonidas, p. 226, S. V. A. K,. But, when a ship goes about very near to another, and without any preparatory indication from which that other can, under the circumstances, be warned in time to make the necessary preparations for giving room, the damage con- sequent upon want .of sufficient room may arise from the fault of those in charge of the ship going about at an improper time and place, lb. Or, in the case of darkness, fog, or other circumstances rendering it impossible for the ships to see each other so COL 67 Collision in- distinctly as to watch each other's evolutions, the fault may- be with either, lb. 26. By the Merchant Shipping Act, (17 and 18 Vict, c. 104, ss. 296, 297,) and the Steam Navigation. Act, (14 and 15 Vict., c. 79,) us well as by the rule of the Trinity House of Quebec, when a steamer meets a sailing vessel going free, and there is danger of collision, it is the duty of each vessel to put her helm to port and pass to the ripbt, u lcs the circumstances are such as to render the follow ng.i 1 fie rule impracticable or dangerous. The lnga, p. 335, S. V. A. R. No sufficient cause being found for not following this rule, a sailing vessel condemned in damages and costs for putting her helm to starboard, and passing to the left of a steam tow-boat, thereby causing collision with the vessel in tow, the steamer and her tow coming down the channel, nearly or exactly upon a line with the course of the sailing vessel, lb. Conflict of English and American law, how to steer, lb. 27. Where two ships, close hauled, on opposite tacks meet, and there would be danger of collision if each continued her course, the one on the port tack shall give way, and the other shall hold her course. The Mary Bannatyne, p. 350, S. V. A. R. She is not to do this, if by so doing she would cause unnecessary risk to the other, lb. Neither is the other bound to obey the rule, if by so doing she would run into unavoidable imminent danger ; but if there be no such . danger, the one on the starboard tack is entitled to the benefit of the rule. lb. The circumstances of the case examined, and no sufficient cause being found for not following the rule, the vessel inflicting the injury, condemned in damages and costs, lb. 28. The settled nautical rule is, that if two sailing vessels, both upon a wind, are so approaching each other, the one on the starboard and the other on the port tack, as that there will be a danger of collision if each continue her course, it is the duty of the vessel on the port tack immediately to give way, and the vessel on the port tack is to bear away so early and effectually as to prevent all chance of a collision occurring. The Roslin Castle — The Glencairn, p. 303, S. V. A. R. Also 4 L. C. R., p. 38. 29. The general rule is, that where two vessels are ap- proaching each other, both having the wind large, and are approaching each other so that if each continued in her course there would be danger of collision, each shall port helm, so as to leave the other on the larboard hand in pas- sing. The Niagara — The Elizabeth, p. 308, S. V. A. R. But it is not necessary that because two vessels are pro- ceeding in opposite directions, there being plenty of room, the one vessel should cross the course of the other, in order to pass her on the larboard, lb. Although there may be a rule of the sea, yet a man who has the management of one ship is not allowed to follow that rule to the injury of the vessel of another, when he could avoid the injury by pursuing a different course, lb. 5* 68 COL Collision : — The Court pronounced for damages against a vessel sailing down the River St. Lawrence, on her homeward voyage to Liverpool, running foul of another coming up in tow of a steamer, the night at the time being reasonably clear, and sufficiently so for lights to be seen at a moderate distance, lb. 30. Liability of a steamboat for collision between vessels, one of which is towed by the steamboat. TheJdhn Counter, p.344, S.V.A.R. Cases may occur in which an accident may arise from the fault of the tow, without any error or mismanagement on the part of the tug, and in such case the tow alone must be answerable for the consequences. lb. Cases may also occur in which both are in fault, and in such cases both vessels would be liable to the injured vessel, whatever might be their responsibility inter se. lb. 31. If the collision arose solely from the misconduct of those on board the steam tug, both the other vessels are exempt from responsibility and the action on the part of each must be dismissed, leaving them to their recourse against the steamer. The Niagara— The Elizabeth, p. 308, S.V. A. R. The law in such case is, that the tow is not responsible for an accident arising from the mistake or misconduct of the tug. lb. Steamers are to be considered in the light of vessels navi- gating with a fair wind: the steamer and the Niagara were considered in this respect as on an equality, lb. And so a vessel in tow, with a head wind and no sails, and fast to the steamer, so that she could only sheer to a certain distance on either side of the course in which she was towed by the steamer, is powerless to a very great extent, lb. If it be practicable for a vessel which is following close upon the track of another to pursue a course which is safe and she adopts one which is perilous, then, if mischief en- sue, she is answerable for all consequences. The Mary Ban- natyne, p. 350, S.V. A. R. 32. The Court will not enter into the discussion as to the precise point, whether on the starboard side or otherwise, in which one vessel lies to the other at the time of being dis- covered. The John Counter, p. 344, S. V. A. R. 33. In order to support an action for damages in a case of collision, it is necessary distinctly to prove that the collision arose from the fault of the persons on board of the vessel charged as the wrong-doers, or from the fault of the persons on board of that vessel and of those on board of the injured vessel. The Sarah Anne, p. 294, S.V. A. R. 34. If a vessel make every precaution against approaching danger, it is not sufficient to subject her to damage for injury to another by collision, that in the moment of danger those on board such vessel did not make use of every meaus that might appear proper to a cool spectator ; there must be gross negligence. The Niagara — The Elizabeth, p. 308, S.V.A.R. 35. In a case of collision by one steamer against another, where the loss was charged to be owing to the negligence of. the defendants, the Court, being of opinion that the damage COL 69 Collision : — was occasioned by such negligence, gave damages and costs. Maitland vs. Molson, S. R., p. 44-1. And a vessel which is placed by those in charge in such a position that danger will arise, if some event not improbable arise, will be answerable for damages. The Lotus — Clark, 11 L. C. R., p. 342. 36. If there was no proper and sufficient look-out, and if the proper means were not adopted for avoiding collision, after the time when the other vessel's lights were seen, her having taken the most seamanlike and proper course when the collision was all but inevitable, does not exempt a vessel from liability. The Niagara— The Elizabeth, p. 308, S. V. A. R. Also 4 L. C. R., p. 264. 37. In the case of a collision between two vessels in the Lachine Canal, where the injured vessel was in violation of the rules and regulations of the canal, on the wrong side of the canal, the owner of the other vessel is not liable in damages, in the absence of proof of " any wilful act or neg- ligence "on the part of the crew of the latter. Leger vs. Jackson . And at Quarter Sessions, it was held in this case, that the transferee of a license must comply with all the formali- ties required by sec. 16 and sub-section 2, cap. 6, Con St. L. C, before he can exercise the rights granted by such license. Thompson and Bellemare, 7 L. C. J., p. 74. 16. A prosecution for selling liquors without license need not be under oath. Ex parte Cousine, S. C, 7 L. C. J., p. 112. 17. A Deputy Revenue Inspector may validly sign a plaint or information for selling liquor without a license. Quarter Sessions, Reynolds and Burnford,! L.C. J., p. 228. 18. A conviction will lie against a partner alone for sel- ling liquor without a license. Quarter Sessions, Mullins and Bellemare, 7 L. C. J., p. 228. •' : — Vide Tavern-keepers. Co-partnership: — Vide Partnership. Corporation:— 1. The bequest of a sum of money to trustees for the benefit of a corporation not in esse, but in apparent expect- ancy, is not to be considered a lapsed legacy. And a similar bequest, to be applied towards defraying the expenses to be incurred in the erection and establishment of a University or College, upon condition that the same be erected and established within ten years from the testator's death, such condition is accomplished if a corporate and political exist- ence be given to such University or College by letters patent, emanating from the Crown, although a building applied to the purpose of such University or Coljege may not have been erected within that period of lime. Desriviires vs. Richardson, S. R., p. 2 18. And so in a devise of real estate to a corpo- ration, upon the condition that it should, within the period often years, erect and establish, or cause to be erected and established upon the said estate a University or College ; it was held, — that the words erect and establish, &c, extend only to the erection and establishment of the corporation or body politic forming the University or College, and not to the erection of a building in which the University or College is to be established. The Royal Institution vs. Desriuieres, S. R., p. 224. 2. If a corporation composed of certain trustees, to be sub- sequently named by the Crown, be established by Statute, the existence of the corporation will commence at the time when the statute was passed, and not at the time when the trustees were named, lb. 3. The' head of a corporation may bind the body corporate by any contract from which it may derive a benefit, lb. COB to COS 83 CORRORATION : — 4. And corporations are bound by the acts of their agents, in the same way and to the same extent as persons are. Ferrie and Wardens of the House of Industry. 1 Rev. de Leg., p. 27. 5. The individual members of a corporation cannot be im- pleaded in respect of the affairs of such corporation. The Attorney General, pro Regina, vs. Yule tif al., S. C, 1 L. C. J., p. 289. 6. A corporation duly constituted in a foreign country may proceed for the recovery of its debts in Lower Canada. Larocque Sf al. and The Franklin County Bank, Q. B., 8 L. C. R., p. 328. 7. Generally, a corporation must sue in its own name ; and an action in which it purports to be represented by its executive will be dismissed, and plaintiff will not be per- mitted to amend. The Corporation of the Parish St. Jerusa- lem, vs. Quinn, S. C, 3 L. C-. J., p. 234. 8. The Corporation of Montreal is liable for damages caused by the overflowing of street drains, which have become ob- structed, and where such overflowing has had the effect of rendering the packages containing the goods unmerchanta- ble ; and although the contents themselves be uninjured, damages will be recoverable. ' Kingan vs. The Mayor, fyc. of the City of Montreal, S. C, 2. L. C. J., p. 78. And the Cor- poration of Montreal is also bound to fill up an old water course which does damage to the property of a citizen, within the limits of its jurisdiction. Voyer, vs. The Mayor, SfC. of the City of Montreal S. C, 1 L. C. J., p. 166. But the Corpo- ration of the City of Montreal is not liable in damages to a person falling iuto the cellar of a house burned down, and not rebuilt, the lot being uninclosed contrary to the by-law of the Corporation, the cause of such damage being too re- mote. Belanger Sf ux. vs. The Mayor SfC. of the City of Montreal, S. C, 8 L. C. R., p. 228. 9. The Ordinance 2 Vic. c. 26, [Con. St. L. C. cap. 19,] was intended to vest property in religious bodies, and their powers must extend to the perfomance of acts necessary to the preservation of their rights. Leslie Sf al vs. Shaw Sf al., 3 Rev. de L6g., p. 246. 10. A declaration filed in pursuance of the 12 Vic. c. 57, s. 1, [C. Sts. L. C, cap. 69, Sect. 1,] which the parties signed, but to which they omitted to put their seals, is nevertheless sufficient and answers the object of the Statute, — that of making known the names of the persons originally comprising the building society. The Union, Building Society vs. Russell, S. C, 8,L. C. R., p. 276. 11. The legal existence of a Corporation cannot be ques- tioned by an incidental proceeding such as a plea in a cause, but must be attached by means of proceedings under the 12 Vic. c. 41, [Con. Sts. L. C. cap. 88, lb.} " : — Vide Expropriation. Corporators : — Vide Action en garantie. Costs : — 1. An Attorney party in a cause, who appears in person, is entitled to his fees, upon judgment in his favor with costs. Brawn vs. Gugy,-S. C, 11 L. C. R., p. 483. 6* 84 COS 2. But this was reversed in Appeal. 11 L. C. R., p. 4.01. And in Gugy vs. Ferguson, it was held in the Q. B., that he was hot entitled to his fees. 11 L. C. R. p. +09. 3. Plaintiffhaving brought his action in the Superior term and recovering only for an amount in the competence of the inferior term was condemned to pay defendant costs of the Superior term. Sanguinet Sf al vs. Lecuyer, 1 Rev. de L6g. p. 230. 4. In an action where judgment is rendered for a larger amount than is admitted and tendered by plea, but where the defence is, in the main, sustained, the plaintiff will be con- demned to pay the costs of contestation. Routhvs. Dougall, S. C, 2 L. C. J. p. 286. 5. The costs of an action en garantie will be given against a principal plaintiff suing before the expiry of the delay of payment, when the defendant calls in his garant formel. Aylwin vs. Judah S. O., 7 L. C. R., p. 128. 6. The words " dcpens de Paction" do not signify the costs of the action as introduced " amount demanded" but only the costs as of the " amount recorded-" Laurier vs. La Corporation du Petit Seminaire de Ste. Thirise, S. C.,L. It., p. 5. 7. And where the action is brought for a larger sum than JE50, and judgment is rendered for £50 and interest, the plaintiff is only entitled to costs as of the first class in Circuit Court, and a motion to revise the taxation of the Prothono- tary, awarding costs as of the second class of the Superior Court, will be granted. Valleevs. Latouehe, S. C. 10 L. C. R., p. 433. 8. And reversing a judgment of the S. C, 3 L. C. J., p. 46, it was held that a condemnation to pay the costs in the Court below, in a judgment setting aside a verdict and ordering a new trial, means all the costs of the trial by jury, and not simply the costs of the motion setting aside the verdict. Ouimet if alvs. Papin, Q. B., 9 L. C. R., p. 268. 9. And in an action of damages for personal wrongs in the Superior Court, where judgment awards only J610 cur- rency and costs, the costs will be taxed as in a case in the Circuit Court of that amount. Wilson vs. Morris and Ravaria, plaintiff, par reprise d'instance, S. C, I L. C. J., p. 266., also Kerr vs. Gugy, S. C, 10 L. C. R., p. 478. 10. If an action be settled as to the principal only, upon condition that the defendant shall pay the costs, such action may be returned into Court and proceeded with for the costs only, if such costs are not paid. JDarche &■ al vs. Dubuc, 1 L. C.R., p. 238. 11. If it appears that plaintiff and defendant have settled a case betwen them with a view to defraud the plaintiffs attorney of his costs, the action will be dismissed with costs against defendant. Richards vs. Ritchie $• al., S. C. 6. L.C. B.., p. 98. And so when distraction de frais is prayed plain- tiff and defendant cannot settle as to costs without the inter- vention of the attorney. Stiguy vs. Stiguy fy al., 2 Rev. de Leg. p. 120. But in Hebert and La Pabriquede St. Jean, it was held that .where the plaintiff compromises with the de- COS 85 Costs : — fendant, the defendant agreeing to pay the costs of the aetion, the plaintiff cannot enter his action for the costs. Q. B., 13 L. C. R., pp. 66 & 451. And the demand for distraction of costs does not take away the plaintiff's right to compromise, lb. No distraction takes place until ordered by the Court, lb. 12. But were a shipper has taken out an action to reven- dieate his goods in the hands of the master, who refused to sign the bills of lading, the action of revendication may be returned for the costs although the bills of lading were signed subsequently to the issue of the writ but before its execution. McCulhch #■ al. and Hatfield, Q. B., 13 L. C. B., p. 321. 13. But in a more recent ease it was held, and confirmed in appeal, the Court being equally divided, that a plaintiff may personally withdraw an aetion, in the absence of and without l3ie intervention of an attorney ad litem, although the attorney should have prayed for distraction de frais. Ryan and Ward fy al., Q. B., 6 L. C. R., p. 201. 14. The amount of .costs payable on the amendment of a •declaration is in the discretion of the Court. Daoust vs. Des- ■champs, S. C, 4 L. C. R., p. 425. But on amendment after filiug of an exception d la forme full costs of action will be allowed. Boudreau vs. Richer, S. C.,<3 L. C R., p. 474. 15. A plaintiff has no right to demand an attachment for contempt against a defendant, who has been condemned to pay costs, upon an incidental proceeding, and who has failed so to do, but such plaintiff is entitled to demand an execution during the pendency of the case. Ferguson vs. Giltnour, S. C, 5 L. C. R., p. 421. 16. Costs in a cause eannot be attached by a creditor, •during the pendency of a cause, as belonging to the party, to the prejudice of the attorney. Ganthier vs. Lemieux^ S. C.,2L. C. R.,p. 273. 17. Costs due in a former aetion will not entitle defend- ant to a suspension of proceedings, unless it appear that the causes of action are identical, and that the parties also are identical. Lalonde vs. Lalonde, S. C, 1 L. C. J., p. 2-90. And the non-payment of costs in a former action cannot form the subject of an exception dUatoire. Lynch vs. Papin, S. C, L. R., p. 27. 18. Costs are not privileged unless the original demand is of a privileged character. Lalonde vs. Rowley and La Banque du Peuple opposant, and Lafrenaye and Papin, contesting the report of distribution, S. C, 1 L. C. J., p. 274. 6 L. C. R., p. 192. So in an action for rent a plaintiff has a privilege upon the proceeds of defendant's moveable effects for the whole of his costs, and this privilege entitles him to be collocated, in preference to the claim of the lessor of the house, in which the goods are seized, for rent. Jercis vs. Kelly. S. C, 4 L. C. R., \i. 75. Also, in a case of Kerry S( al. vs. Petty &■ al., and Watson, Contg., S. C, 6 L. C. J., p. 293, and 13 L. C. R., p. 163. And upon distribution of moneys, attorney of seizing creditor is entitled to fee allowed upon homologation of report, lb. And so in Mar- 86 COS Costs : — , , M&n vs. Mawey, S. C, 8 L. C. R., p. 122, it was held that costs of action, as accessory of the principal, rank before an hypothecary claim, registered subsequently to the obligHtion for the amount of which judgment has been rendered, but previously to the judgment condemning the defendant to the payment of costs. But in the case of Marrin vs. Daly, S.C., 6 L. C R., p. 48, a different rule was followed. But a seizing creditor of a debt of an unprivileged character is only entitled to be collocated, by privilege, upon the pro- ceeds of a judicial sale, for the costs of an ordinary action by default settled at the sum of £4> 9s. Denis vs. St. Hilaire, S. C, 5 L. C. R., p. 386. But it is said that in case of Gau- thier vs. Blaiklock, No. 237, in the Superior Court at Quebec, decided on the 9th April, 1855, the plaintiff's attorney was given a privilege for the whole of his costs and the costs of an appeal. S. C, 5 L. C. R., p. 388. And in another case of Garneau vs. Fortin, S. C, 2 L. C. R., p. 1 15, it was held, that a plaintiff has a right to be collocated by privilege for all his costs of suit, when such costs are indispensably necessary to obtain the seizure and sale of the defendant's real estate. And a plaintiff who has taken execution against a defendant and brought, his effects to sale has a privilege for all his costs of action and execution according to the class under which his action comes, to be taxed as in a case decided upon the merits ex parte, after enquite. Miction vs. Leigh et Gagnon, S. C, 6 L. C. R., p. 95. 19. The words fee of office do not extend to costs of an action, alleged to have been taxed too high, so as to give ground for an evocation. Derome vs. Lafond, S. C, 6 L. C. R., p. 474. 20. A party who desists from a judgment and tenders plaintiff's attorney the amount of damages proved, plaintiffs having no domicile in the country, will be given costs though the judgment desisted from be held to be bad and reversed in appeal ; and this though there be no consignation of the money. Leverson Sj- al. and Boston, Q. B., 3 L. C. J., p. 223, and 9 L. C. R., p. 238. But where a party is collocated erroneously, vltra petita, he must pay the costs of the contestation although on receiving such contestation he at once acquiesced in it, and consented that judgment should be given as demanded in the contestation but without costs. Adams vs. Hunter and Evans, S. C, 11 L. C. R., p. 172. 21. And where the appellant fails on all the grounds of his appeal hut. one, being the rectification of a clerical error of the Superior Court, by which .£50 4s. was adjudged instead of j654 4s., the Q. B. will correct the error and condemn the appellant to pay costs. Levey and Sponza, Q. B., 6 L. C. J., p. 183. 22. A Revenue Inspector suing in the Queen's name for penalties under the Act 14 & 15 Vic. c. 100, is not liable for costs. Hogue and Murray, S. C, 3 L. C. R., p. 287. 23. In a case of peremption d"instance, the action will be dismissed, each party paying his own costs. Fournier vs. The Quebec Fire Insurance Company, S. C ., 6 L. C. R., p. 97.* * Bui it bus not been so held in Montreal, and in the Queen's Bench it was held thai the decision as to costs was discretionary with the Court. Vide Vo. Peremption d'Instance. COS to C R I 87 Costs : — 24. Where a petitioner for ratification of title has agreed by his deed to pay a sum of money due to a bailleur de fonds, an opposition by such creditor will be admitted but without costs. Lenoir and Lamothe &■ al., S. C, 10 L. C. R., p. 451. 25. When the moyens of an opposition are sufficient to cover the conclusions demanded, the opposant will be given the costs of contestation of a report of distribution, and such opposant will not be under "the necessity of setting up the fact that the immoveable property was held in common soccage, and consequently not liable to a general hypothec. Evans and Boomer, Q. B., 11 L. C. R., p. 465. The case in the S. C. is reported 12 L. C. R., p. 170, under the heading of The Quebec Building Society vs. Jones and divers opposants. 26. The costs of the contestation of a registrar's certificate, will be given against the party over-collocated if he has not filed a remittitur. Marois vs. Bernier and Lariviire, S. C, 12 L. C. R., p. 174. 27. Court may exercise a legal discretion as to costs. Costs refused in this case. The Agnes, p. 57, S. V. A. R. 28. If a suit be brought by a seaman for wages, a settle- ment, without the concurrence of the promoter's proctor, does not bar the claim for costs. The Court will inquire whether the arrangement was or was not reasonable and i just, and relieve the proctor if it were not so. lb. " : — Vide Certiorari. • " Curator. • " Distraction de frais. - " Exhibit. • " Expertise. ■ " Htpoth£q,ue. " Pleading & Practice. ■ " Peremption d'instance. " Proctor. " Security for Costs. , « Witness. Coupe de Bois : — Vide Servitude. Court Houses: — Vide Sheriff. Court Martial : — Vide Habeas Corpus. Court of Appeal: — Vide Enquete. Creditor: — Vide Joint Creditors. " : — " Resiliation. Criminal Information : — In an application for a criminal information for libel, the court is placed in the same position as a Grand Jury, and -must have the same amount of information laid before it as will warrant a Grand Jury in returning a true bill ; and a Grand Jury would not be warranted in returning a true bill for libel unless the libel itself were laid before them ; and the criminal information must be rejected unless the libel be filed with the affidavit upon which the applica- tion is founded. Ex parte Gugy, 8 L. C R., p. 353. And 9 L. C. R., p. 51. Criminal Law :— 1. The Statute, 14 Geo. III., c. 83, [Con. St.C.,c. 13], has introduced into this Province that portion of the Criminal Law of England only which was of universal application 88 C R I to C U L Criminal Law : — there, and not such parts as were merely municipal and of local importance. By that statute, the 9 Geo. I., c. 19, and 6 Geo. II., c. 35, which impose certain penalties on persons selling foreign lottery tickets, have been made to form part of the law of Lower Canada. Ex parte Rousse, S. R., p. 321. 2. In criminal cases, American authorities will not be received. R. V. Creamer, Q. B., in appeal, Crown side, 10 L. C.R., p. 404.* 3. The punishment prescribed by the Old. 4 Vic, c. 30, s. 1. [Con. St. L. C, cap. 37, sec. 113], is cumulative, and sentence of imprisonment and fine is to be awarded upon the conviction had against the defendant, in manner and form as enacted by the ordinance. Reg. vs. Palliser, Q. B., in appeal, Crown side, 4 L. C. J., p. 276. 4. Trial of Carroll for murder. 3 Rev. de L6g., p. 225. 5. Autrefois convict. Reg. vs. Webster, C.Cr. Ap., 9 L.C.R., p. 196. 6. Obtaining goods under false pretences. Reg. vs. Robin- son, C. Cr. Ap., 9 L. C. R., p. 278. Cross : — 1. A promissory note signed by a cross, in presence of one witness, is good. Collins is. Bradshaw, C. C, 10 L. C R., p. 366. Also Anderson vs. Park, S. C, 6 L. C. R., p. 102. And an endorsement by cross, before witnesses, is valid. Noad vs. Chateauvert et al., 1 Rev de Leg , p. 229. 2. A confession of judgment to which the defendant has set his cross, countersigned by his attorney, ad litem, is in- valid and insufficient ; the defendant must attach his signa- ture to the confession, and, if unable to sign, the confession must be made by a notarial instrument. McKenzie vs. Jolin, S. C, 5 L. C. R., p. 64. 3. The payment of money in a nofi-cohimercial case may be proved by witnesses who Witnessed a receipt signed by the party receiving the money, with A cross, in their pre- sence ; and in the examination of such witnesses it is irregu- lar to begin by asking whether the amount had not been paid. Neveu, pere, et al. vs. DeBleury, S. C, 3 L. C. J., p. 87. And in the same case it was subsequently held, that the payment of a sum of money iray be proved by the attesting witness to a receipt, signed with a riiark made by the party receiving the money. Q. B., 6 L. C. J., p. 151; also 12 L. C. R.,p. 117. 4. A cross or mark may be a commencement de preuve par icrit. lb. Crown : — Vide Damages. Crown Lands : — Vide Lands. Cullers: The appointment of a Board of Examiners, under the 6 Vice. 7, is dependent upon the appointment of a Supervisor of Cullers under the same act. The Queen vs. The Quebec Board of Trade, 3 Rev. de Leg., p. 89. A labourer counting and sorting deals for his employer is not liable to the fines imposed upon persons culling without being duly authorized to do so. The Supervisor of Cullers vs. Gagnon, 3 Rev. de Leg., p. 2+1. * V. lb. p. 450, ibr rectification of an error in the report of Mr. J ustice Ay Iwin's remark* in this case. - CUM to CUE 89 Cumulation of Actions : — The cumulation of actions cannot be pleaded by a preliminary plea or exception a la forme. Hunter vs. Darwin, S. C, 1 L. C. J., p. 287. " '.—Tide Action Petitoirb. " : — • " Action Possessoire. Curator: — 1. No action en revendication can be maintained by the presumptive heir to the estate and succession of an absentee if he be not curator to the estate of such absentee, or entitled to the possession by an envoi en possession or final deliverance of the estate and succession. Gauvin vs. Caron, S. R., p. 136. 2. The curator to the vacant estate of an absentee cannot be impleaded, in his quality of curator, for debts due by the absentee. Whitney vs. Brewster, S. C, 3 L. C. R., p. 431. 3. A creditor who has obtained a judgment against the curator to a vacant estate can lawfully direct a personal action against the curator to compel him to render an account of his administration. Valleau vs. Oliver, S. C, 2 L. C. R., p. 462. But a curator to a vacant estate cannot be sued by a third party to whom he has assigned his claim against such vacant estate, inasmuch as the curator cannot sue himself or be sued by his own assignee. Tessier vs. Tessier, S. C, 2 L.C. R., p. 63.* 4. In an action to account, brought by plaintiff as curator to a vacant succession, against the defendant as being in possession of the estate, a plea is unfounded in law which sets forth that the deceased died in the United States and that the estate devolved upon her heirs, there being no vacant succession in this country, and that the plaintiff was named curator without notice, upon a petition of a party not a relative or a creditor of the deceased, nor on the advice of the relatives or creditors of the deceased or of those interested in the estate, and without necessity being shown for such appointment. The defendant in such a case has no right or interest in contesting the quality of the curator on the ground of the objections above mentioned. Sexton vs. Boston, S.C., 6 L. C.R., p. 180. 5. A plaintiff who has obtained a judgment against a defendant as curator to a substitution will not be allowed to take supplementary conclusions by petition, setting up a nulla bond against the defendant es qualites, and praying for judgment against the defendant personally. Watnervs. Ger- rarcl, S. C, 6 L. C. R., p. 485. 6. A curator to the estate of an absentee, who contests and defends, is personally liable for the costs of the plaintiff's action. Whitney vs. Brewster, S. C, 4 L. C. J., p. 298. 7. There is no contrainte par corps against a curator to a vacant estate who has been ordered, by an interlocutory judgment, to pay into Court what the curator admits to be due, for failing so to do. The Ordinance of 1667 only grants the remedy par corps after final judgment. Wood vs. Mc- Lennan, S. C, 5 L. C. J., p. 253. '■' : — Vide DECHfiANCE. " : — " Interdict. * The reporter seems to be at a loss to understand the motive of this judgment. It is not obscure. If a curator were allowed to sue himself, as such, there would be no legitime contradicteur . 90 CUE to CUS Curatorship : — Vide Evidence. Cure:— 1. A cure who celebrates the marriage of a girl during her minority, without publication of banns and without the con- sent of her parents, in virtue of a dispensation from his Bishop, is liable for damages for so doing. Larooque et vir and Mickon, S. C, 1 L.C. J., p. 1^7. Q.B., 2 L. C. J., p. 267. 2. A cure who refuses to baptize the child of one of his parishioners without any just cause will be ordered to do so by the Court ; and further, will be condemned to pay dam- ages. Harnois fy Rousss, C. C, Montreal, No. 1021. Judg- ment 7 December, 1844. 3. A Bishop of the Roman Catholic Church may name a priest as missionary in a regularly constituted parish, reserv- ing to himself the right of revoking the appointment, in spite of the arrit of the Conseil d'Etat of 1679, rendering the Curis in Canada inamovibles. And a letter from the Bishop to the effect following will not create such priest cure of the parish named in such letter, and inamovible : — " Monsieur, — Conformement a l'avis que je vous ai deja " donne par ma derniere lettre du 22 Mars dernier, — je vous " nomme par la presente,. jusqu'a revocation, de ma part ou " de mes successeurs, a la desserte de la cure et paroisse de " St. Jean Baptiste de Rouville, dont vous percevrez les " dixmes et oblations, et ou vous exercerez les pouvoirs dont " jouissent les autres cures du,dioeese. Vous serez rendu & " votre iiouveau poste au plus tard pour le 27 du present " mois, qui sera le dernier dimanche d'Avril courant. " (Signe,) f J° s - Ev.de Quebec. " A Monsieur Louis Nau, Pretre." Nau and The R. C. Bishop of Montreal. Judgment 19th June, 1838. (Not reported.) " : — Vide Dixmes. « : — « Fabrique. Currency: — By the statute 14 Geo. III., c. 88, duties on importation of goods into Lower Canada are payable in sterling money of Great Britain, and the uniform standard of value at which foreign coins are to be received is their contents in pure sil- ver, at five shillings and sixpence per ounce. Gillespie vs. Perceval, S. R., p. 365. But a tender of the Spanish dollar, at four shillings and sixpence sterling, the value fixed by the Provincial Statute, 48 Geo. III., c. 8, for the payment of all debts and demands, is not a legal tender in payment, lb. The value of the Spanish dollar in sterling money is four shillings and four pence, lb. [Con. St. C, cap. 15, governs the currency.] No silver coin of the United States of America is legal current money of the Province of Canada. [But see Con. St. C, cap. 15, sec. 10.J Sauvette vs. Scott, S. C, 5 L. C. R., p. 337. A draft drawn in New York and accepted in Montreal, payable generally, the consideration for which is certain goods purchased in New York, is payable in current Canada funds. Copcutt et al. vs. McMaster, S. C, 7 L. C. J., p.340. Customary Dower: — Vide Douaire. Custom or trade: — A custom of trade is not binding if it be against law. Jones $• al. vs. Young, S. C, L. R., p. 83. C(JS to DAM 91 Customs Duties: — 1. By the first or sterling eost in the Provincial Statute, 53 Geo. III., c. 11, imposing duties on the importa- tion of certain goods, is to be understood the price paid for them at the place from whence they were exported, less the discount. And an action on the case might be maintained against a coHector of customs who refuses to admit the goods until duties, as calculated upon the price of the goods, witii- out a deduction of the discount, had been paid. Patersons et al. vs. Perceval, S. R., p. 215. 2. The ad valorem duties chargeable on goods imported into this Provin.e shall be charged according to the actual market value thereof in the country where purchased. Moffatt et al. vs. Bouthillier, S. C, L. R., p. 48. Confirmed in appeal, 5 L. C. R., pp. 235 and 305. 3. Pure grain spirits, imported from Holland into this country, where it can be proved that they were so- imported with the necessary ingredients to manufacture Holland gin, and for that purpose, are subject to the same duty as gin, and the importation of the sume as whisky or grain spirits is. in such a case, a fraud upon the Revenue. Torrance and Bouthillier, Q. B., 7 L. C. R., p. 106.* 4. An entry at customs, by invoice, in which goods are undervalued is presumed to be a fraudulent entry. JLyman et al. vs. Bouthillier, Q. B., 7 L. C. J., p. 169. And where the owners benefit in any way by the entry,, as by taking possession of part of the goods, they cannot question the validity of the entry, lb. And when the invoice mentions in effect that the good's are consigned to the party making the entry, he will be held to be the consignee of such goods within the meaning of the Customs Acts, even although the bills of lading of such goods affirm that the goods are to be delivered to other parties (the owners) or their assigns, lb. And when goods have been undervalued in the invoice and entry, for the purpose of avoiding payment of part of the duties payable thereon, they are so completely forfeited that the owners are debarred from disputing the legality or proof of the seizure and sale of the goods, lb. 5. But in estimating for duty at the market value of the- place of importation, such value will be taken to be the value of such goods by a gold standard. Atwater et al. v&* Bouthillier, S. C, 7 L. C. J., p. 285. Dam:— Vide Water Power. Damages : — 1. Where both parties are mutually blameable in not taking measures to prevent accidents, the rule is to apportion equally the damages between the parties, according to the maritime law, as administered in the Admiralty Court. The Sarah Ann, p. 294, S. V. A. R. 2. Where a wharf is damaged by the fault of the master of a ship who has brought his vessel in collision with a wharf, the rule of two-thirds new for old may be taken as a guide * The words of the report — " Day, J., dissenting in favor ol the respondent," is evidently au error, respondent being used for appellant. 92 DAM Damages : — to the Court in estimating the damages, if the wharf be not aaa good repair. The Harbour Commissioners and. Grange, Q.B., 10 L.C. R., p. 259. 3. In an action of damages for breach of a contract to supply hops, payable on delivery, the defendant having refused to accept the hops tendered, the proper measure of damages is the difference of the price stipulated and the market priee at the time fixed for delivery ; and in such a case the Court cannot order the contract to he executed. Boswell and Kilborn Sf al., P.C., 6 L. C. J., p. 108, and 12 L.C. J., p. 161. 4. Damages cannot be recovered for the non-execution of a contract for the delivery of certain specific goods which have been destroyed by vis major, and which cannot be re- placed. Russell and Levey, Q. B., 2 L. C. R., p. 457. 5. At the dissolution of a co-partnership A. gave B. two promissory notes, on condition that if B. returned said notes within three weeks he might have his selection of goods to the value of the notes. It was held that B. was not restricted to any description of goods, nor obliged to allege or prove, in an action of damages for the non-delivery thereof, what kind of goods he would have selected. Foley and Elliott, Q. B., 9 L. C. It., p. 349. 6. In the case of the non-execution of a contract of lease, the lessee can only recover such damages as are the imme- diate result of such non-execution, and not the consequential damages which the parties could not have foreseen ; and the plaintiff cannot recover as damages, what he might have gained inconsequence of an unforeseen event, by sub-letting the building for a purpose foreign to its legitimate use. So the plaintiff having leased a theatre cannot claim in the shape of damages what he might have received from Gov- ernment for giving up his lease, the Legislative buildings having since such lease been destroyed by fire, and the theatre being the only building fit Jbr the sitting of the Legislature. Lee vs. The Music Hall Association, S. C, 5 L. C. R., p. 134. 7. The master of a vessel is responsible for damages to effects carried as a deck load. Gahertyand Torrance Sf al., Q. B., 13 L. C. R.,p. 401. And there is no need that the con- signee who sold the damaged goods should give notice of the sale, unless the master alleges and shews that he has suffered by the want of notice, lb. 8. For delay in transmitting cargo to its place of destination. Orvis vs. Valigny, S. C, L. R., p. 35. u : — Vide Read and Lefebvre, S. C, L. R., p. 80. 9. Damages cannot be recovered against the proprietor of a farm by reason of explosion in quarrying carried on by his tenant. Vannier §• ux. vs. Larchedit Larchevique, S. C, 2 L. C. J., p. 220. 10. A party setting fire to his land at an improper and un- fitting time, is liable for damages for the destruction of a thrashing machine, which had been brought on to his land to thrash his grain. Hynes and McFarlane, Q. B>, 10 L. C. R. p. 502. DAM gg Damages : — 11. Defendants are liable to plaintiff for damages done by water to goods in plaintiff's eellar, the water having entered by means of a hole for a service pipe left open during repairs made by defendants to the street. Belixeau vs. The Mayor Sfc. of the City -of Montreal, S. C, 6 L. C. J., p. 487. And so where the flooding and clamase n suit from a stoppage in the city drain . Walsh vs. The Mayor &c. of the City of Mont- real, S. C, 5 L. C. J., p. 335. 12. Damages may be recovered from the proprietor of a toll-bridge for not keeping the road which leads to it in repair. Grenier vs. Leprohon, Q. B., 3 L. C. J., p. 295. 13. Damages cannot be recovered by a shareholder in the Grand Trunk Railway Company against the company for refusing to register, during a period of several months, a transfer made by him of his shares as collateral security, and thereby causing him great pecuniary loss, although such transfer be prepared in the form required by the company's charter. Webster vs. Tfte Grand Trunk Railuay Company, S. C, 2 L. C. J., p. 291. Reversed in appeal, where it was held that such action would lie. Q. B., 3 L. C. R., p. 148. And in the same case it was subsequently held that the true measure of damage is the difference between the price of the stock at the time of such refusal and its price at the time of the subsequent registration of the transfer. Q. B., 6 L. C. J., p. 178. 14. All damages are not personal wrongs under the Slat. 12 Vic. c. 42, [Con. St. L. C, cap. 87, sect. 24,] so as to . give contrainte par corps. Whitney vs. t>ansereau, 4 L. C R., p. 211. Damages claimed for mutilating a person's horse, are not considered personal wrongs entitling a party to trial by jury. Burochervs. Meunier, S. C., 1 L. C.J., p. 290. 15. Damages for false imprisonment will be allowed al- thought no malice be proved. Wilson vs. Morris and Ravaria, S. C, 1 L. C. J., p. 237. 16. In an action of damages, for the improvident issue of a saisie-arrit before judgment, where justification or sufficient probable cause is not made out, but where the conduct was such as to create serious distrust, only nominal damages will be awarded. Dalpe dit Pariseau vs. Rochon, S. C, 2 L. C. J., p. 120. 17. In an action of damages, for an illegal arrest, plaintiff has no right to adduce evidence of the pecuniary circum- stances of the defendants. ' Jordeson vs. McAdams, S. C, 13 L. C. R., p. 229. 18. An agent who, in that capacity for a third party, caused the illegal seizure of defendant's property may be personally liable in an action of damages therefor. Warren vs. Noad, S. C, 8 L. C. R., p. 177. 19. A contractor for the erection of a building is liable to a person for damages, for injuries sustained by such person by a beam failing on him from such building, while he was passing in the public street. And such contractor is liable for the negligence of his workmen employed there ; and the 94 DAM Damages : — onus probandi that there was no negligence will lie on the contractor. Holmes vs. McNiven, S. C, 5 L. C. J., p. 271. 20. And so also a railway company will be held liable for the vice in the construction of the road by which a passenger is killed or injured, and the giving way of the roadway will be primd fade proof of improper conslruction ; but the de- fendant, may plead and put in issue that the road was con- structed by competent engineers and that the damage to the roadway was occasioned by a storm of unusual violence. The Great Western Railway Company vs. Faiccett and Braid, P. C, (an appeal from U. C.) 7 L. C. J. p. 141 . 21. It is no answer to an action of damages for injury done by the bite of defendant's dog, that plaintiff, al the time he was bitten, was on defendant's property, there being no evidence that plaintiff was a trespasser. Dandurand fy ux. vs. Pimonnault,S. C, L. R., p. 80, and 7 L. C. J., p. 131. 22. In an action for damages in consequence of plaintiff's child being severely bitten by defendant's dog, which was trained and kept as a fighting dog, and suffered to go un- muzzled , exemplary damages will be awarded. Falardeau vs. Couture, S. C, 2 L. C. J., p. 96. 23. The Mayor and Corporation of Montreal are not liable in an action brongh. by a person who has been beaten during a riot, to recover damages for bodily injuries received and for loss of wearing apparel on his person at the time. Brolet vs. The Mayor fyc. of the City of Montreal, S. C, 1 L. C. R., p. 40.H. But in the case Carson Sf al. is. The Mayor Sfc. of the City of Montreal, S. C, 9 L. C. R., p. 463, it was held that the defendant is liable for damages occasioned by a mob riotously entering into the house of the plaintiff in the city, and breaking furniture and windows, and spilling liquor. And the Corporation of the City of Montreal is liable for loss occasioned by the burning of property within the city by persons riotously assembled therein. Watson and The Mayor Sj-c. of the City of Montreal, Q. B., 10 L. C. R., p. 426. 24. Parties present in the midst of a tumultuous assembly congregated by plot, are responsible for the damages caused by such assembly, even although they take no active part in the trespass. Nianentsiasa and Akwirente Sf al., Q. B., 4 L. C. J., p. 367. 25. Damages cannot be recovered from a magistrate, for injuries caused by the firing of troops under the order of such magistrate, if it be made to appear that though there was no necessity for firing; yet the circumstances were such that a person might have been reasonably mistaken in his judgment as to the necessity of such firing. Stevenson vs. Wilson, S. C, 2 L. C. J., p. 254. 26. Damages awarded to a steward for assaults committed upon him by the master of the ship without cause. The Sarah, p. 89, S. V, A. R. Those who have the command of ships are not, under the colour of discipline, to inflict unnecessary, wanton, and un- lawful punishment upon those under their control, lb., p. 81, (in note.) DAM 95 Damages : — 27. Responsibility of master for any abuse of his authority at sea. The Friends, p. 1 18, S. V. A. R. Suit for personal damage by a passenger against the master, lb. 28. Suit for personal damage by a cabin passenger against the master for attempting to exclude him from the cabin. The Toronto, p. 170, S. V. A. R. 29. Suit for, by a mariner against the master, dismissed. The Coldstream, p. 386, S. V. A. R. 30. Damages for bodily injury cannot be recovered in futitro, without a specific proof of the extent to which the person of the party to make a livelihood has been thereby impaired. Marshall vs. The Grand Trunk Raihvay Com- pany, S. C, 1 L. C. J., p. 6. But in another action of damages against a railway company for negligence by which a man was killed, the jury may accord the widow and the next of kin damages as a solatium for the bereavement althought there be no evidence of the value of the life of the person killed. Ravary 4" al. vs. The Grand Trunk Railway Company of Canada, Q. B., 6 LT C. J., p. 49. 31. In an action of damages, defendant may appear and plead even after a delay oi five months and after service of interrogatories surfaits et articles and althought his failure to appear was attributable to his own fault. Hayden vs. Fitz- simmons, S. C, 1 L. C. J., p. 9. 32. In an action for rent brought by the Crown, the de- fendant may set up in compensation damages for non-fulfil- ment of the contract inasmuch as lie did not get possession of the premises at the time promised. Belleau and The Queen, Q. B., 12 L. C. R., p. 40. 33. In an action of damages by A., for delivering stores to B., the latter cannot offer in compensation damages alleged to have been incurred, on the buildings of B.'s house by A. as a sub-contractor under C. Siucisse $• al. vs. Hart, S. C, 1 L. C. J., p. 190, and confirmed in appeal, 1st March, 1858. 34. The limitation of six months referred to in the statute 7 Vic. c. 44, sec. 26, is applicable to an action of damages brought against the Corporation of Montreal owing to the not having fenced in a strip of laiid taken from the plaintiff to construct a canal for the purposes of the water works. Pigeon vs. The Mayor, SfC of Montreal, Q. B., 9 L. C. R., p. 334, and 3 L. C. J., p. 294. 35. Damages claimed from the Grand Trunk Railway Company, by reason of the alleged negligence of their ser- vants in destroying the rubbish collected on the line of road, being the final act of the construction of a portion of the line of railway, are subject to the prescription of six months under the 8 Vic. c. 25, s. 49, and such prescription is avail- able to the company under ihe general issue. Boucherville vs. The Grand Trunk Railway Company, S. C, 1 L. C. J., p. 179. 36. And in an action for damages by a tutrix to minors in consequence of the death of their father through the negli- gence of the defendant, the demand is subject to the pres- 96 DAMtoDfiC Damages : — cription of one year. Filiatraidt vs. The Grand Trunk Rail- way Company, S. C, 2 L. C. J., p. 97. 37. Damages for personal wrongs are not liable to seizure Chef vs Leonard Sf al. and Decary Sf al., S. C, 6 L. C. J., p. 305, also 13 L. C. R., p. 74. Nor can the defendant set up in compensation in an action of damages for an illegal arrest monevs due him by plaintiff for rent. Jordeson vs. McAdams, S. C.,* 13 L. C. R., p. 229. ■Vide Action en gakantie. - " Apprentice. - " Bill of Exchance. - " Carriers. - " Compensation. - '• Corporation. - " Cure. - " Prescription. - " Privileged Communication. - " Saisie-Gagerie. - " Slander. - " Trespass. - " Vendee. Debentures : — Hypotheque. Debiteurs solidaires: — 1. Joint ai:d several debtors, snedunder the same writ, are not liable for the litigious costs created by one of them, against their common creditor, and the others although represented by the same attorney are not supposed to be aware of the incidents and proceedings of one of them, unless they are signified to them, and the signification of an appeal to their common attorney is not sufficient. Boucher and Latour Sf al., Q. B., 6 L. C. J., p. 269. 2. Joint debtors, sued under one writ, may be condemned jointly and severally in costs. Perkins vs. Leclaire, S. C, 7 L. C. J., p. 78. " : — Vide Laberge vs. de Lorimier, S. C, L. R., p. ,87. Debt not dbe : — Vide Saisie-Arret. Decheance : — Where an estate is claimed d titre de decheance or a litre de b&iardise by the Crown, the creditors of the estate have a right to make good their claims, by proceedings for an account against the curator of the estate, before it can be placed beyond their reach. by a transfer to the Crown. The Attorney General, pro Regind, vs. Price and McGitt Sf al., S. C, 9 L. C. R., p. 12. Declaration: — In case of an attachment under the 177th article of the custom, the declaration may be served at the Sheriff's office. Sinclair vs. Ferguson, S. C, 2 L. C. J., p. 101. " : — Vide Pleading & Practice. " ._ « Tiers-Saisi. Declarations in arnculo mortis : — Vide Evidence. Declinatory Exception : — Vide Pleading & Practice. Deconpiture :— The transfer of notes delivered by a party en decon.fi- ture is valid. Huchmson vs. Gillespie, 3 Rev. de Lee., p. 427, 4 Moore's R. p. 378. -Vide Hypothecate. - " Lease. - " Promissory Note. D E C to D E F 97 DficRET : — 1 . A petition en nullite de decret filed by a plaintiff" on a sale of immoveables, will be dismissed on exception a la forme, by an adjudicatavre, considering that the adjudicataire is not a party in the instance, and that he could not legally be brought into the cause by a notice. Joseph vs. Brewster and Haldane, S. C, 6 L. C. R., p. 486. 2. The deficiency in extent of land sold by decret gives a right to the adjudicataire to require a diminution in the pur- chase money but not to seek the nullity of the sale. This diminution will be in proportion to the price. Grey vs. Todd &f al., 2 Rev. de Leg., p. 57. [kit it would be otherwise if the lands were described as having buildings on them, when in reality there were none. Lloyd vs. Clapham, 2 Rev, de L6g. p. 179. 3. When, at a sale of property taken in execution, the sale is stopped by the Sheriff', the last and highest bidder at the period does not become the adjudicataire of, or acquire any right to, the property put up, although the Sheriff may have acted illegally in discontinuing the sale. Nor can there be any sale unless the bidding has been accepted, by the knocking down of the hammer or some act equivalent there- to ; nor can a defendant, by op|>osition. stop the sale of his property, on the ground that the sum bid was not near the value of the premises, unless the p';.iintiff and the opposants, d fin de conserver, consent thereto. Baker vs. Young $• al. and Blackuxmd, P. R., p. 26. 4. An action by an adjudicataire of real property against a parly as plaintiff", poursuivant le decret, to recover the value of a deficiency in the extent of land sold, cannot be brought de piano, until such deficiency shall have been established in an action to reform the Sheriff's title granted to the ad- judicataire and correct the description of the quantity of land, to which action the piursuivant and the saisi must be parties. And until such deficiency be so ascertained, the title granted by the Sheriff operates as a bar to any action merely personal against the plaintiff, pntr suit ant le decret, as having received the proceeds of the sale, and is conclusive evidence of the quantity of land sold and conveyed, as between the plaintiff and the defendant, until it be legally set aside or reformed. Desjardins vs. La Banque du Pevple, S. C, 3 L. C. J., p. 75, also 9 L. C. R., p. 108. Reversed in appeal, where it was held that the saisi need not be put in the ease, and that the creditor who has received the money is obliged to refund the excess. Q. B., 10 L. C. R., p. 325. Deed: — Vide Interpretation of Deeds. Default: — 1. When the defendant in an action begun by capias ad respondendum has failed to appear, and default has been eutered against him, owing to an accident whereby instruc- tions for the defence of said action were not communicated to defendant's attorney until afteT the .said default, the said default will be taken off and defendant allowed to plead, on motion, supported by affidavit, showing the lacts, and that the defendant has a good defence, and on payment by defendant of 50s. costs. Brisson is. McQueen, S. C.,.7 L. C. J., p. 70. 2. In the Court of Vice Admiralty proceedings were dis- continued where on return of warrant, first default made, 7 98 DEF to DEL Default : — but no prayer for a second default at the expiration of two months from the return of the warrant. The Friends, p. 73, S. V. A. R. " ; — Vide New Conclusions. Defendant: — Vide Absentee. " Default. " Evidence. Deguerpissement : — A party who contracts to pay a ground rent for ever " de payer la rente, a t&wjours et a perpetuite," deprives himself of the power of making a deguerpissement ; that stipulation being equivalent to the obligation de fournir et fairs valcir. Dubois 6f al. vs. Hall, S. C, 7 L. C. R., p. 479, and Hall and Dubois fy al., Q. B., 8 L. C. R., p. 361. Delaissement : — 1. The delaissement in an hypothecary action may be made at the office of the prothonotary, and notice thereof need not be given to plaintiff. Greaves vs. Macfarkme, Q. B., 3 L. C. R., p. 426. 2. A purchaser of immoveable property who has accepted an assignment of the price of sale, cannot set up in answer to the claim of the assignee, a demand en delaissement made against him, so long as he is not judicially dispossessed. LaCombe and Fletcher, Q. B., 11 L. C. R., p. 38. * 3. A purchaser of real estate who is obliged lo delaisser property under an hypothecary action may recover back the money paid by him to the vendor ; Hutchins vs. Darwin, S. C, L, R., p. 64, and damages against his garant from the period of the abandonment, although the immoveable be not yet seized and although such garant was not called in upon original demand. Dorwin Sf al. and Hutchins, Q. B., 12 L. C. R., p, 68. 4. A delaissement filed after the expiration of 15 days from the service of the judgment, will not be rejected on motion to that end. Belanger vs. Durocher, S. C, 2 L. C. J., p. 283 ; Q. B., 9 L. C. R., p. 430. 5. A delaissement filed with a special condition attached is null ; but in case of appeal the delaissement may be pro- perly put in after judgment in appeal confirming the judg- ment in the Court below. Metrisse dit Sans/agon and Brault, Q. B., 2 L. C. J., p. 303. Delay : — Vide Corporation. Delivery : — 1. If property after a sale perfected, but before delivery is burned by accident, the loss falls on the purchaser. McDouall vs. Fraser, S. R., p. 101. 2. The actual possession by the purchaser of a certain quan- tity of timber amounts, in law, to a delivery, though the timber has not been culled and counted. Levey, vs. Tumbull Sf al., 1 L. C. R., p. 21. But on the sale of' goods by admeasurement, which goods happen to be destroyed by fire, the loss is upon the seller ; stipulations of admeasurement at a certain place and time render the sale conditional and incomplete until the occurrence of these events, and in the meantime, the risk {periculum rei vendue^ must be borne by the vendor. Lemesurier &■ al. vs. Logan S/- al., 1 Rev. de Leg., p. 176, also 6 Moore's Rep., p. 116, And so where the * An hypothecary action is not a trouile de droit. DEL 99 Delivery : — defendant undertook to deliver, and the pi intiff agreed to receive, 14.000 leet birch timber, merchantable and averag- ing a certain size, the said timber to be piled on the defendant's wharves during the winter of 1844-5, and to be delivered as required l>y the plaintiff, during the ensuing season of navigation. To meet such order a quantity of timber was piled upon the wharves of the defenclan! and was d stroyed by fire, during the winter, before it had been' measured as between the plaintiff and the defendant, and it was held, that there had been no delivery of timber to plaintiff, because there had been no measurement, and because it was not ascertained that the timber Was of the proper size or quality. Levey and Lowndes, S>. C, 2 L. C. R., p. - 257. 3. Merchandize imported from abroad is delivered to the consignee when placed on the wharf, and is from thence at his own risk, provided notice of the arrival of his goods has been given him. Rivers vs. Duncan, S. R., p. 139. And where goods deliverable to "order or assigns" are landed from a vessel after the expiration if the delay allowed by law to the importer to laid the same, the captam is not liable for any damages that may accrue thereto, after they have been placed on the wharf. Scott vs. Hescroff, 8, C, 2 L. C. R., p. 477 ; Q. B., 5 L. C. R., p. 274. 4. Where it is agreed that a raft is to be delivered to the advancers at a boom and by the laches of the contractor an actual delivery takes place before its arrival there, a suffi- cient possession is established to destroy the lien of the rufsmen for their wages. Ruel vs. Henry and Anderson Sf al., C. C, 12 L. C. R., p. 149. 5. Where three chains are attached together for the pur- pose of delivery, they compose one whole, and delivery of any one will not be held made until all three shall have been delivered. McMaster and Walker <$• al., Q. B., 8 L. C. R., p. 171. 6. Ihe placing goods on board of a schooner addressed to his creditor without a previous sale or agreement to that effec, does not transfer the property nor the possession to the consignee, and such goods may be legally seized as the pro- perty of the consignor, notwithstanding the bill of lading signed by the master of such schooner, if such seizure take place before the goods reach the hands of the consignee. Frechette vs. Corbet, 8. C, 5 L. C. R., p. 21 1. A. sells a quantity of timber to B., a part of the price only to be paid on delivery of the timber, A. makes a delivery" and B. omits to pay any part of the price. Thereupon A. brings an action to rescind the contract of sale and by pro- cess of saisie revendication attaches the timber. This action Was maintained, and the timber so far as it could be iden- tified was ordered to be restored. Moorfyal. vs. Dyke Sf al., S. R., p. 538. 7. It is not competent for the vendor of goods, bargained and sold lor cash and not delivered in consequence of the noli payment of the purchase money, to sae for the price. Gordon is. Henry, S. C, 3 L. C. J., p. 166. 7* 100 DEL Delivery : — 8. Merchandize, weighed, measured and paid for, may be seized as the property of the vendor. Nesbitt and the Bank of Montreal, Q. B., 9 L. C. R., p. 193. -Vide Donation. - " Freight. - '" Sale. - " Timber. Delivrance de legs : — 1. A common legacy vests in the heir at law, on the principle that " le mort saisit le vif" and he is not di- vested of the same until delivrance de legs has been obtained. Campbell vs. Shepherd, S. R., p. 138. And so also it was held in Holland is. Thibaude:w, S. C, 4 L. C. R., p. 121. But in the case vt The Royal Institution is. Desriviires it was held, that to maintain a petitory action against a residuary legatee, a delivrance de legs from the heir at law is not required; the Quebec Act and the Provincial Statute, 41 Geo. III., c. 4, s. 1, [Con. St. L. C, cap. 34 sec. 2,] having, as respects testemen- tary donations, in cases where the heir at law has been entirely excluded from, the succession by will, abrogated the rule of the French law le mxrrt saisit le vif. S. R.,p. 224.* 2. When a universal legatee has possession of the whole of the testator's estate as executor and the executorship is finished, it is not competent for a debtor of the testator, sued by such universal legatee, to plead that there has been no delivrance de legs. Duclos vs. Dupont, S. R., p. 236 in note. And the noa delivrance de legs is only a plea in the mouth of the heir. lb. 3. In the case of Robert et al vs. Dorion et al., it was held by the majority of.the Cuiirt, that the effect of a universal legacy is to render delivrance de legs unnecessary. S. C, 3 L.C.J.,p. 12.f * It is suggested by Ihe reporter, that the exception of ruon-delivrance de legs is only a good plea in the mouth of the heir. But this suggestion does not reconcile the different arrets; indeed, in rendering judgment in the ca^e of Holland and T/iibaudean. Mr. Justice Day expressly-condemned the dictum of Mr. ustice Hyke in this case The suliseqnent judgment in Robert et al. vs. Dorion establishes another distinction, which differs as much from the suggestion of the reporter of this case as it does from the admitted rule of the old law. It, however, agrees with the holding of this case, as reported ; the want of necessity of the delivrance de legs turning completely on the will establishing a universal legacy. f Mr. Justice C. Mondelet, while agreeing with the result of the judgment as to the necessity of delivrance. said that he thought it was immaterial whether the legs was miiver- tel or partirulier. Jl should be remarked that, by '• universal leaacy," the Court i-rideiitly intended to express a legacy of all the property of the testator, so that there should be no room for the legitime, and not any technical distinction between the/*7re particulier and the titre itniverscl. Ofeoursc, the argument which Mr. Justice Badgley draws frum Ihe absence of legitime would not apgly where there is only a legs particulier, for, in such a case, the llginme would still subsist lor the remainder, unless it be admitted that the case of Qiiintin Dubois et al mid Girard et al. (as reported in the vol. S, L. C. R., for the holding of the report in the Jurist is evidently inexact) decides, that where there is a will at all the legitime is excluded. , Ibis varying jurisprudence it is impossible to reconcile. It indicates merely an extreme hostility to the law ol delivrance, and this hostility takes its rise in the occasional incon- venience caused by the frivolous exception that there has been no previous demands en delivrance de legs. This sentiment is natural enough; but if felt so strona ! y when this exception is set U|>, how much more strongly should it manifest itself in the endless objec- tions to procedure which are urged in the piactice court? Is it not notorious that nine- tenths of the objections there raised are so solely lor the purposes of delay ? Still, no one would propose to make the rules of practice merely arbitrary, or to reverse the rule " laformt emporte lefond." That this is the real explanation of the diversity of opinions expressed on the Bench becomes clear when we look at the unsubstantial reasons uraed to defeat the exception. In the .ase last mentioned, for instance, one of the Judges says : that the unli- mited right to bequeath by will leaves us in the same position as in the pays de droit ecrit ; and, therefore, he concludes that delivrance is no longer necessary. Now, without slopping D £ L to D E P 101 DELIVRANCE DE LEGS : 4. But in the case of Blanchet and Blanchet it was held, in the Q. B., that since the passing of the Act 41 Geo. III., ch. 4, delivrance de legs has ceased to be necessary. 11 L. C. R., p. 204. Demurrage : — Without an express agreement, demurrage cannot be charged by the master of a vessel for delay in unloading by consignee. The proper remedy is an action of damages, but such damages must be specially proved- Marchand vs. Renaud, S. C, 6 L. C. J., p. 1 19. Deplacement : — Vide Lease. " : — " Moveables. Deposition: — 1. The deposition of a witness, not certified by the Pro- thonotary, cannot be read. La Banque du Peuple vs. Gusy, S.C., 9 L.C.R., p. 484. 2. Marginal notes, not certified, do not annul the deposi- tion ; but the omission that the witness is not allied to either of the parties, within the prohibited degrees, does. Lauzon vs. Stuart, S. C, 4 L. C. J., p. 126. to enquire whether Ihe Statute -II txeo III. and the Quebec Act have put us exactly in the same position, as regards wills, as those who lived en pays de droit errit, it does not seem to me to be ;i iie<*cssary consequence of thai legislation, lhat all our law, depending on our pre- vious position, but not mentioned in the Acts <>l the Legislature by which it was changed, should be abrogated. That only can be deemed abrogated, by implication, "which is incom- patible wilh ihe more recent legislative Act Again, the rest of the Judges in this ease seemed to think lhat Ihe demande was linneces-ary, there being no legitime where ihe testiitor had bequeathed all his property, and the rule, cessante causa cessat ejfectus, was invoked. The rule is a sound one ; but it must be borne in mind lhat qnce simid cum, in aliqno vitiaJa est,perdit o-fficium siium. Now ihe question is, "imply, has the cause ceased, thai is, the whole, cause, or all the causes? (t may at once be admitted, that where Ihere was a legitime there was necessarily and evidently an additional reason fox requiring the deliv- rance i but 1 1 annot so readily admit that it was the only one. he, mort saisit le vif— one of the fundamental principles of our customary law — a rule for which considerations \4' public ordei plead most eloquently, is not incompatible wilh ihe unlimited right to bcqucaih ; it is not, iherelbie, abolished or in any way modified by Ihe statute aliove mentioned. It would hot be diilit-ult to suggest tancilul cases, resulting in breaches of the peace, which might arise from the disuse ol the demande en delivrance de legs, but I shall only allude to one. It is where the terms ol the will raise a doubt as to whom ihe testator indi' ales. The following case, which I found in manuscript in an old folio, furnishes an example of a case of this kind. It has no dale, but I copy the whole ; " Rolle du LuNni." " La De. Dubreuil avail fait un legs aux pauvres de la piroisse St. Sulpice. " Le Cure lormn la demande en delivrance de legs; mais I'hopital-general le lui disputa. " Lcs niovens des administraiturs e aient que par l'Edit de la fondatio de l'hopital- He'ieral tous legs taits aux pauvres lui appartenaiant: ils invoquerent plusicurs arrets confir- inani- de it privilege. " Mr. Doucet rcpoussa re sysieme en soutenant que ce n'etait pas dans l'e«peee presente les pauvres en general qui etaient lesrataires, mais les pauvres de St. Sulpice : u'est-a-dirc, les pauvres queieiix et malades. '■ M. Seguier adopte ce dernier sysieme. Les Cures, dit-il, sont les canaux par lesquels lea ames compal ssantes fonl circuler fcur- liberahte- dans le sein de leurs freres indigents. Com- bien de latniiles la cha'ite inaenieuse lie soutient-elle pas par ce moyen, qui n'oseraient, sans eelte voye, ni demander ni rei evoir : tanr urn- source, si precieuse, ce serait, porter le coup Je plus fuce»te a la sooiete, un cri general iCeleverait de tous les castirs, et la palrie eploree gem rait sur les desordres qii'un sysieme aussi bizarre terah eoiorre .... " Ariel du 2;' Mai qui union ne la delivrance de legs aux pauvres de St. Sulpice." ll is a ways advantageous to trammel Ihe litigious suitor, but even that may he accom- pli-hed at too great a cost. Jn making these remarks, it must, of course, be underciood that the object is not to criticise the judgment in the case of Robert and Dorion, as a whole, which aupeais from oiher considerations to be correct, but Ihe motive of the particular holding a.- repotted. In a case ot Blanchet et at. and Blanchet, beins an action by a legatee ol Ihe whole suc- cession of a legator, »» delivrance de, legs, against ihe heirs at law, the delend-.ints pleaded that he action was idle, no delivrance being necessary ; but tne Superior Court, silting at Queliec, was against Ihem. The respondents, Pllfs. en del. de legs, in their factum, have, wilh mm h aptne-s, ihus placed the question: ". . . . il ne s^agt pas settlement de. I'envei en possession, mais dr. In /ireuve de la validite du titre du legalaire,de la reconnaissance dii testament, eoujradiitoirement avec I'heritier," But in appeal this judgment was reversed. Vide Vbo. Del vkance de Legs, No. 4. 102 DEP .to PIS Deposition : — 3. The omission of the words "ypeniste" at the end of a deposition is not fatal. Carden et a/,, vs. Finley et al., S.C., 3 L.C.J.,p. 232. Deputy-Sheriff : — The children of the Deputy-sheriff are not liahle to the sheriff in an action to account lor moneys received by their father, in his capacity of deputy -sheriff. Perry Sf Gugy, P. C, 2 Rev de Leg., p. 327. JJesaveu: — 1. One of two co-executors cannot bring an action for the estate, either in his own name or in the names of both, ■without concurrence of the other Clement vs. Geer, L. R. f p. 23, and 4 I* C. LI., p. 103. 2. A party who excepts in the form of a desaveu, must expres.s'that the desareu is made by himself personnul ly, with the aid of his attorney, or by his fonde de procuration. Hart vs. Hart, S. C, 1 L. C. R., p. 307. 3. The action en desaveu may not be returned before the regular day of return, unless notice be given to the defend- ant en desareu ; and the action en desareu will not be received if the principal cause to which it refers he en di'libere. La Societe de Construction Canadienne vs. Lamon- t gne, and the said plaintiff en desaveu vs. Lafrenaye, S. C, 3 L. C. J., p. 235. " : — Vide Substitution md Ferns, and the Montreal Permanent Bdg. So.etdl.,6 L. C.J. , p. 299. 5. When in any contestation of an item of collocation or distribution, the title on which the opposant has been collo- cated, is contested, costs are given as if the opposition had been contested. And the class of costs is governed not by the amount collocated, bnt by the amount claimed by the opposant, who is considered as plaintiff, the contesting party being looked upon as defendant. Doutre vs. Gosselin and Gabouria.wM, P. C, 7 L. C. J., p. 290. 104 D I X to D O M Dixmes:— 1. In Canada dixmes are not subject to the prescription of a year. Blanchet rs. Martin etal.,3B.ev.de Leg., p. 73. And so it was in Brunet rs. Desjardins, 3 L. C. R., p. 81. But in Theberge vs. Vilbon, S. C, 3 L. C. R., p. 196, it was held, that tilhes do not run in arrear— that the action claiming iw prescribed by a year, and that the defendant cannot be held to tender the oath that he has paid them. 2. Township lands are not subject to dixmes. Refour vs. Senecal, C. C„ L. R., p. 104. 3. A simple letter missive addressed to the cure of a parish by a former paroissien, informing the former that the latter hud ceased to belong to the Church of Home, is suffi- cient to liberate such person from the payment of tithes thereafter. Grarel rs: Bruneau, 5 L. C. J., p. 27. 4. Dixmes are to be divided between two cures in propor- tion to the time in any year of the incumbency of each. The succession of cures is subject to the same division. The ecclesiastical year, as regards dixmes, counts from St. Michel, and the dixmes are payable at Easter. Fdiatrault vs. ArchamJiault, S. C, 4 L. C. J., p. 10. Divisibility : — Vide >ervitude. Dol: — Vide Action Resolutoire. Domaine Seigneurial : — The cultivated domain may be taxed for the purposes of elementary schools. Caldwell and Les Commissaires d'lZcole de St. Patrice de la Riciire du Loup, 3 Rev. de Leg., p. 364. Domicile : — 1. Service at the house wheje Defendant, who had gone to California, lived a month before, is bad. Kelton vs. Manson, S. C, L. R., p. 79. 2. Service at an hotel where a party, who has no other domicile, • enerally resides, is not sufficient. McDonald vs. Seymour, S. C, L. R., p. 79. 3. Service at the place of business of a co-partnership of an action for lease of business premises is sufficient. Ber- thelet is. Galarneau et al.,S. C , L. R., p. 109. 4. The domicile of a husband is where he usually resides and carries on his business, notwithstanding his family resides elsewhere. In Lower Canada, the law only recog- nizes one domicile. Kay and Simard, S. C, 1 L. C. J., p. 167. 5. Plaintiff must allege the domicile where he resides and not that of his place of business. Dinning vs. Bell et al., S. C, 6 L. C. R., p. 178. But phintiffs who are merchants and co-partners, may allege their domicile as being where they *arry on their business, and they are not obliged to allege their domicile as being at their place of residfiice. Janvrin et al., rs. Lemeswi"r, S. C, 6 L C. R., p. 177. 6. An opposition miide through the ministry of an attorney, will not be dismissed on motion, on the ground that it does not contain an election of domicile. The proper way to attach an opposition on the ground that it does not contain an election of domicile, if objectionable, is by exception d la forme, and not by motion. Murphy vs. Moffat and Levey et al., S. C, 8 L. C. R., p. 477. 7. Where a defendant is sued in a district other than that of his domicile, on the pretext that the cause of action arose DOM to DON 105 Domicile : — in such district, the whole cause of action must have arisen in the district in which the action is brought. Senecal rind Ckenevert, Q. B., 6 L. C. J., p. 46. Also Rirard vs. Leduc, 6 L. C. J., p. 116. So where ooods are sold in one district and delivered in another, the purchaser cannot be sued in the district where brought, if it be not the district in which he. is domiciled, lb. " : — Vide Certificate. " : — " Inscription de faux. Donation!- -1. Constant and habitual drunkenness is a good cause for the resiliation of a donation. Couture rs. Begin, 2 Rev. de Leg., p. 6-0. A donation cannot be revoked for ingrati- tude against a third party, cessionnaire of the donee, although Ihe third party have assumed the payment of the charges of the donation. Martin rs. Martin, S. C, 3 L. C. J., p. 307. 2. Neglect 1o pay the arrears of a rente viagere is not a cause for the resiliation of a donation subject to such rent, lb, 3. All the parties to a deed of donation must be before the Court before such deed will be set aside, lb. 4. A donation A titre onereux containing charges equal to the value of immoveable property thereby given, cannot be rescinded by reason of the subsequent birth of a child, such donation being in the nature of a sale. Sirois vs. Michaud, S. C, 2 L. C. R., p. 177. 5. A donation onereuse gives rise to the payment of lods et venies. Larnoihe et ul. vs. Talon dit Lesperance,Q. B., 1 L. C. J., p. 101. 6. A donation inter vivos of real estate, by a father to his minor children tainted with fraud towards the creditors of the donor, is inoperative. MarYion and Perrin, Q. B., 6 L. C. R., p. 404. And a donation from a father and mother to their son, of all their property will be set. aside as in fraud of creditors, notwithstanding that the donation is subject to the maintenance of the donors during their lifetime. Lavalle vs. Laplante and Laplante, S. C, 10 L. C. R., p. 224. 7. Donation en fraude V. Desbarats vs. de Sales Laterriire, 1 Rev. de Leg., p. 417. .8. A donee bound to pay the debts of the donor, may be condemned to pay the amount of a judgment rendered against the vacant estate of the donor, posterior to the date of the passinjj of the donation, upon the mere production of such judgment, and with ait it being necessary lo.prove that the debt existed prior to the passing of the donation, other- wise than by what is stated in such judgment. Aylwin vs. Allsopp, S. C, 5 L. C. R., p. 367.' 9. A right reserved by 'donation entre vifs, to be furnished " arec des vitements suffisants et convenables pour cha.que suison de I'annee," if left in abeyance, cannot a f'terwurds be con- verted into a demand for money. McGinn and JBrawders, S. C, 1 L. C. J., p. 176. # Contra Mnedith, J-, who was of opinion that the existence of the ctebt was not proved. 106 DON Donation : — 10. A plaintiff wade a deed of donation of real and per- sonal properly in favor of his son, subject to a rente viag&re, and afterwards made another donation of other real property to the donee for life, subject to a rente viag re, with a clause that the donation should avail to the donee's wife, so long as she remained a widow, but no longer, and in the latter donation the donor gave a discharge for the rent due and to become due under the first donation. The donee having died, and his widow having remarried, it was held that the donations mrst be read together, and that the second having become void, the discharge contained in it did not take away the plaintiff's recourse for the rent stipulated by the first donation. Dalpe dit Pariseau is. Brodeur et ux, S. C, 9 L. C. 11., p. 56. 11. A droit d^habitaiion stipulated by donation inter vivos in favor of donor, on another properly to be acquired subse- quently by the donee, cannot be invoked by such donor against the purchaser of such other property from the donee. Verdon vs. Groulx, is. C, 1 L. C. J., p. 184. 12. A donation can legally and rightfully be revoked before acceptance. Laionde and Martin, S, C,, 6 L. C. R.., p. 51. 13. A deed of retrocession of a donation made to a minor, and accepted un his behalf by a stranger, is a sufficient ratification of a donation, and the covenants contained in the donation in favor of the donee must be fulfilled. Judd and Esty, Q, B., 6 L. C. E.., p. 12. 14. A deed of donation of moveables by a marriage con- tract, does not require an actual delivery. White vs. Atkins, S. C, 5 L. C. R., p. 420. 15. The heirs of a donor can invoke the nullity arising out of the want of insinuation, of the deed of donation. Leroux et al., is. Crerier et al , S. C, 7 L. C. J., p. 336. 16. A donation onereuse need not be insinuated nor registered. Lnfleur vs. Girard, S. C, 2 L. C. J., p. 90. Leroux et al., is. Crerier it al., S. C , 7 L. C. J., p. 336. 17. A donation onereuse of which the charges exceed the value of the thing given, is not null from want of insinuation. Rochon et ux, vs. Duchine et ux, S. C, 3 L. C. J., p. 183. Poirier vs. Lacroix, 6 L. C. J., p. 302. 18. The resiliation of a donation of immoveables, of which the donee remains in possession, cannot be opposed as a reason for not paying certain sums of money to the creditors of the donor. Poirier vs. Lacroix, S. C, 6 L. C. J., p. 302. 19. A draft of a deed of ratification of a donation, filed by plaintiff as an exhibit, and which (or one to the like effect) it is demanded that the defendant do execute, may be taken cognizance of, and adjudged upon by the Court without the said draft being detailed at length in the declaration or other pleadings, and a deed of donation being valid, a promise thereiu ^contained to ratify the same at a certain time is obligatory and cannot be avoided on the ground of there being no consideration for such promise. Eastonvs. Euston, S. C, 7 L. C. J., p. 138. .DON to DOU 107 Donation : — 20. A third party who is enriched by a deed of donation may sue un the contract although not a party to it. Durand vs. Durand, L. R., p. 59. 21. The donation of moveables made by a husband to his wife, still a minor, by contract of marriage establishing separation de biens is a fraud with respect to a person having a claim against him at the time of his marriage for seduction, and the wife cannot have main-levee of such moveables made upon the husband, in satisfaction of such claim. Chaput vs. Berry and Sans Cartier, S. C, 12 L. C. R., p. 172. ■ Vide Legitime. - " Pleading and Practice. - " Prohibition to alienate.. _ - " Registration. " Remise. Dot : — The dot consisting of a sum of money is alienable, the wife srparee de Mens from her husband and by him duly autho- rized. Gauthier vs. Dagenais, C. C, 7 L. C J., p. 51. Douaire: — 1. The decease of the husband before his wife, gives opening to the wife's dower, unless there be a formal stipu- lation, renouncing expressly to the dispositions of the custom. Mercier vs. Blanchet, Bigne/l vs. Henderson, 1 Rev. de Leg., p. 122. 2. The performing an acte d%iritier by the sons prevents them afterwards renouncing the succession of their father and taking their share of the dower created by their father. FHion &f al. vs. DeBeaujeu, S. C, 5 L. C. J., p. 128. 3. The stipulation of ameublissement in a contract of marriage excludes the legal or customary dower on the immeuMes ameubtis. Taussatnt Sf al. vs. Leblane, S, C, 1 L. C. R., p. 25. 4. A widow who has been condemned as commune en biens. to pay a debt of the community, may claim her dower in preference to the creditors of the community, although she has not renounced thereto, on the principle that she is only bound to pay the debts out. of what she receives from the community. Delisle vs. Richard, S. C, 6 L. C. R., p. 37. 5. An acquet, the . price of which has been paid by the community, is nevertheless subject to customary dower, and the dower is not liable for the improvements made upon such immoveable by the community. Aicltambav.lt and The Syndics of the Bankrupt estate of Martigny, 2 Rev. de L6g., p. 210-1. '1 he 4 Vic. c. 30, ss. 35, 37, [Con. St. L. C, cap. 37, ss. 52 and 53,] does not exempt from dower the lands and tene- ments which, under the custom, would have been subject to it, and which are at the decease ol the lather in his posses- sion, nor on those which have passed out of his possession, but in which the wile has not barred or released the dower. Adams vs. O'Connell, S. C, 1 1 L. C. R., p. 365. 6. Douaire coutkmier. as regulated by the Coutuine de Paris, was at all tunes claimable on lands in Lower Canada, held under the tenure of free and common socage before 108 DOU to DEO Douaire : — the passing of the Imperial Statute of 6 Geo. c. 59,* com- monly called the Canada Tenures Act. Wilcox Sf ux. vs. Wilcox, Q. B., 2 L. C. J., p. 1. And the English law of dower, as we 1 as the English law of descent and alienation, as regards lands held in free and common socage, wag introduced into Lower Canada for the first time, by the Im- perial Statute 6 Geo. 4, c. 59, commonly called The Canada Tenures Act. lb., and 8 L. C. R., p. 34. 7. The tutor of a minor cannot oppose afin de charge the sale of an immoveable hypothecated for customary dower not yet open. Robertson df al. vs. Perrin and Perrin, 1 Rev. de Leg., p. 288 ; Vide also Stuart vs. Bowman, S. C, 2 L. C. R., p. 369. 8. The dower of children of a second marriage only consists in the quarter of the immoveable property acquired during the first community, although by the effect of the partition of the first community, made after the second marriage, the husband have become proprietor of the totality of the im- moveable affected to the dower. 9. The article 279 of the Custom of Paris, does not apply to the customary dower of a second wife and of the children of ei second marriage. Filion vs. DeBeaujeu, S. C, 5 L. C. J ,p. 128. 10. A voluntary re-union to the domain owing to the non fulfilment of the clauses of a deed of concession has not the effect of purging the land of the customary dower with which it was charged, lb. But see the case of Lynch and Hainault, Q. B., 5 L. C. J., p. 30b', where it was held that the hypothec created in favor of a third party by the donee, during his possession, is extinguished by a voluntary K resolution although not caused by the resolutory clause, but in the form of a retrocession, for good and valid consideration. 11. The exclusion of " douaire prefix et coutunver'" by an antenuptial contract passed in Lower Canada will nof ex- clude dower in Upper Canada. Fisher vs. Jameson, Court of C. P., U. C.,7 L. C. J.,p. 154. 12. In an hypothecary action for the recovery of douairt prefix, defendant cannot demand that the previous purchasers be sued first, such an exception applying only 1o the case of the douaire coutumier. Benoit vs. Tanguay and Tanguay, plaint ffs en gar. vs. Boutillicr, defendant en gar., S. C, 1 L. C. J., p. 168. -Vide HyPOTHEQUE. ■ " LlCITATION. " Widow. Double Insurance: — Vide Insurance. Droit d'ainesse : — 1. The droit d'ainesse in a testamentary succession cannot exist except in the cases where it is made the object of special legacy ; and where the will creates a substitution ; such droit d'ainesse bequeathed to the eldest of the children charged with substitution and by him accepted, not having been bequeathed to the eldest ot thos<; called to the substi- tution, cannot be claimed in the subdivision between the * But see Con St. L. C, cap. 35. DEO to E L E 109 Droit d'a.inesse : — appeles. And supposing the droit d'ainesse could be claimed in the subdivision between the appeles, it could only lie by the eldest son taking the quajity of heir of the party charged with sub titution, his father or mother. - DeBellefeuille vs. DeBellefeuille fyal.,S. C, 3 L. C. R. ( p. 161. 2. In matters of testamentary succession, the droit d'ainesse, in the partition of biens nobles can only subsist in virtue of a special pro ision ; and the provision of a testator to the effect that the overplus of his biens nobles shall be divided between his two children in such a way as to give the elder ■two-thirds and one-third to the other children according to the law of Fiefs, charging them nevertheless with debts in proportion to their legacies, the whole subject to substitution, does not contain a legacy of a droit d'ainesse, and cannot give rise to the exercise of that right in any of the parties claiming under the substitution. Globensky and Laviolette &• al., Q. B., 4 L. C. R., p. 384. 3. The droit d'ainesse being a proprietary right, cannot be claimed under a will, by the eldest son of the testator as usufructuary legatee ; but only as heritier ah intestat. Cuth- bert vs. Cuthbert, S. C, 6 L. C. J , p. 128. Droits honorifiques : — The use of a pew jn churches, was only granted to seigniors in their quality of Haut Justiciers, as one of the attributes of the power they held and of the juris- diction they exercised ; and by the effect of the conquest, the jurisdiction they exercised, having ceased, and their judicial power having become extinct, they have ceased to be entitled to such rights, and more particularly to pews in churches. Larue Sf al. vs. La Fabrique de St. Pascd, S. C, 1 L. C. R., p. 175. And so also in the case of Le Cure et Marguittiers de la Paroisse de St. Ignace vs. Beaubien, S. C, 4L. C. R., p. 321. Duties: — Vide Customs Duties. Dying Declarations: — Vide Evidence. Easter: — Vide Dixmes. Ejectment : — Vide Loyers. " : — " Saisie-Gagerie. Election : — 1. In a contestation of election, a Commissioner appointed by a select committee of the House of Assembly to take evidence, has no right of action if by ihe dissolution of Par- liament the committee is precluded from making its report, the statute enacting that " the Commissioner shall, imme- diately after the select committee shall have made their final report to the House on the merits of the petition, be entitled to demand and receive from the parties upon .whose application to the Select Committee such Commis- sioner shall have been appointed, fifty shillings for every day which such Commissioner shall have been engaged on such commission, and his travelling expenses. Power vs. Bezeau, S. C, 5 L. C. R., p. 253. But under the recent El.ction Petition's Act, 14 & 15 Vic. c. 1, [Con. St^C, cap. 7, sect. 131.] a Commissioner employed under it, has a right of action against the party or parties on whose applica- 110 ELE to ENG Election : — tion he was appointed, for the fees due him as such Com- missioner. McCotd vs. Bittingharti $• aL, S. C, 1 L. C. J., p. 174. And the fees allowed to such Commissioner are assignable and may be recovered as well from party con- testing as from sitling member, who may be sued jointly and severally, where they both have joined in applying for the appointment. McCord vs. Bellinghant &■ aL, S. C, 2 L. C. J., p. 42. 2. The appeal given by the 6th sub-section of the 22 Vic. c. 82, sect. 5, [Con. St. C, cap. 6, sect. 13,] is not given to electors qualified to vote whose names are entered in the amended list of voters, unless a complaint shall have been filed by such electors before the Board or authority for revising such list, as required by such sub-section. Cleroux 4- aL vs. Larov: <$- aL, S. C, 9 L. C. R., p. 415. Election Agent : — An election agent has no action against his prin- cipal to recover a sum of money as the value of his services, as an election agent, without a special undertaking by the principal to pay. Girouard vs. Beaudry, C. C, 3 L. C. J., p. 1. Election of Domicile : — Vide Domicile. Elections : — Vide Municipal Elections. Electors : — Vide Election. Emphyth£ose : — 1. The sale of the unexpired period of an emphi- teotic lease, described as such in the Sheriff's advertisement, imposes upon the purchaser the obligation of paying the stipulated rent of such lease, although this is not made the express condition of the sale in such advertisement, and al- though there be no opposition, afi.i de charge, fur the preser- vation of such rent. Methot S) al. vs. O'Callaghan, S. C, 2 L. C. R., p. 331. 2. A proprietor who has al'owed his property to be seized and sold, upon an execution against a defendant who held the property under an emphiteotic lease, can claim an indem- nity. for the loss of his property upon the price of the sale of such property. Murphy vs. O 1 Donor an, S. C.,2 L. C. LI., p. 333. 3. Immoveable property, held by the lessee after the expi- ration of an emphiteotic lease, may be legally seized as belonging to the lessor to whom it must revert. Huot and Danais, Q. B., 8 L. C. R., p. 235. " : — Vide Lods et Ventes. Endorsation : — Vide Promissory Notes. Endorser: Vide Compensation. English Civil Laws: — The Hnglish civil laws were not introduced into Lower Canada by the proclamation of 1763, nor by the Imperial Act (Quehec Act) ot 1774; and by the Imperial Act, 6 Geo. IV., c. 59, the English laws have only been in- troduced into Lower Cunada in respect of lands held in free and common soccage, in the particulars of conveyance, descent or inberitiince, and dower. S/.uart vs. Bowman, S. C, 2 L. C. R., p. 369. English Language: — 'I he writ of Mandamus should be in the lan- guage of the defendant. Hamel r$. Joseph, 3 Rev. de L6g., p. 400. * In so far as regards language, lhis Staiuie wa> amended by 7 Vic, cap. 16, sec. 31. EN Qf m Enquete :— 1. The Court of Appeals can order an enquite on a reprise dHnsiance or on other analagous proceedings. McKillip &• al Vs. Kaunts 4- al., 1 Rev. de Leg,, p. 152. 2. In the absence of the return to a commission rogatoire, issued at the instance of the plaintiff, a defehdunt cannot be compelled to proceed with his enquite. Macfarlnne is. Bresler, S. C., 2 L. C. R., p. 238. And it is not competent for the plaintiffs to compel the defendants to go on with their enquite in the absence of certain of plaintiff's exhibits, attached to a commission rogatoire, issued at the instance of the plaintiff, and not returned; and defendants are, under any circumstances', entitled to adduce evidence after the return of the commission. Foster &■ al. vs Chamber lain'Sr al., S. C, 2 L. C. J., p. 285. 3 That where a plaintiff, during his enquite, has been allowed to amend his declaration, he will not be allowed to proceed further with his enquete until he has amended his declaration and defendant has been allowed to plead de novo. Mann Sf al vs. Lambe, S. C, 6 L. C. J., p. 301. 4. The Court will not compel a party to proceed to enquite during the weekly sittings. Quesnel vs. Donesani, S. C, 1 L. C. R.,p.475.- 5. In the absence of any restraining power in the rules of practice, or of any order confining enquite days in term to cases exp irte, the Court has no power 10 prevent a party from proceeding with a contested case during the enquite days in term. La Banque du Peuple is. Roy, S. C, 2 L. C. R., p. 239. 6. The Court cannot order that in any particular case the defendant shall be allowed to proceed with his enquete from day to day until the same shall be completed, the law re- quiring that the matter oi enquttes shall be regulated by rules of practice applicable to all cases. Brown vs. Gusy, 4 L. C. R., p. 46. 7. When an objection has been taken at enquite and main- tained, and the opposing attorney has proceeded with the examination of the witnesses, and the deposition has been closed without any reserve, the Court will not afterwards entertain a motion to revise the ruling of the Judge at enquite. Wrigley vs. Tucker, S. C, 3 L. C. R., p. 89. Also Benjamin vs. Gore, L. It,, p. 31. But in the case of Fahey et al., and Jackson et al., Q. B., 7 L. C. R., p. 27, the Court revised the ruling of the Judge at enquite, although it had not been objected to in th&S. C. 8. It was held at enquete that a party, who had given notice of appeal from an interlocutory judgment, will not be forced to continue his enqu'te. Hcott Sf al. vs. Scott Sf al., S. C, 3 L, C. J., p 132. But motion having been made to revise this ruling it was reversed by the Court in term. S. C, 3 L. C. J., p. 134. 9. A deposition closed after the rising of the Court, and in the absence of the plaintiff's attorney will be rejected as irregularly closed. McDougall vs. McDougall, S. C, 6 L. C. Li., p. 478. And there must be a Judge on the bench when a, party is foreclosed. Vide Vbo. Foreclosure. # The weekly siltings, introduced by the Judicaiure Act of 186.1, are now abolished. 112 ENQ to EVT Enquete : — 10. A foreclosed party is entitled to one juridical day's notice of the inscription at enquite, under the 12 Vic. c. 38, sect. 25, [Con. St. L. C, cap. b>3, sect. 13, s.s. 2.] Renaud and Gugy, Q. B., 8 L. C. R., p. 24-6. 1 1 . By the 43rd Rule of Practice the inscription for enquite is general, so when plaintifFhas finished taking his evidence, if defendant be not present the enquite will be closed if plaintiff requires it. Bawker vs. McCorkill and Graham, S. C, L. R.,p. 1. 12. At enquite sittings a judge cannot set aside a foreclo- sure and inscription at enquite in order to allow the defendant to plead. Macnamaravs. Meagher, S. C, 5 L. C. J., p. 48. Envoi en Possession : — Vide Curator. Erasures : — Words struck out and marginal notes in a return or cer- tificate of seizure, not noticed therein, do not always make such return void, and the Court, according to circumstances, may maintain its validity. Demers and Parant Sf al., Q. B., 5 L. C. R., p. 36. And marginal notes not certified do not annul a deposition. Lauzori vs. Stuart, S. C, 4 L. C. J., p. 126. Erreur de droit : — 1. The erreur de droit which entitles a party to be relieved of his act is such an error as makes him do some- thing because he believes he is compelled so to do, when in reality he is not. Boston vs. Lerige, S. C, L. R., p. 91. 2. Erreur de droit may give rise to an action lor the re- covery back of money paid. So a party who has voluntarily paid a tax imposed by the by-law of a municipal corporation, which by-law is declared by the Court to be void, has a right to recover back what he hns so paid. Leprohon and The Miyor SfC. of the City of Montreal, Q. B., 2 L. C. R., p. 180. But a transaction will not be set aside for erreur de droit. Trigge Sf al. vs. Lavallee, S. C, L. R., p. 87. 3. Erreur de droit must be pleaded by exception and not by defence en droit. S. C, 4 L. C. R., p. 404. Error : — Amendment in the warrant of attachment not allowed, for an alleged error not apparent in the acts and proceedings in the suit. The Aid, p. 210, S. V. A. R. Evidence : — 1. By the old law of France evidence could not be taken of any matter of a value greater than a hundred francs,* without a commencement de preuve par ecrit ; but by the Act 25 Geo. Ill, c. 2, sect. 10, C. St. L. C, cap. 82, sect. 17, it is enacted, that in proof ol all facts concerning commercial matters, recourse should be had in the Civil Courts, to the rules of evidence laid down by the laws of England. McKay vs. Rutherford, P. C, Moore's Rep., p. 414. 2. The 17th section of the Statute of Frauds, (29, Car. 2, c. 3,) is in force in Canada in commercial cases, as being part of the laws of England, to which in such cases recourse * By the 23 Vic c. 57, sect. 39, [C. St. L. C, c. 82, sect. 21,] this is extended to $26, limit ol jiirisd'ciion of Commissioners' Courts, 7 Vic ••. 19, sect. 3, and for which parol evidence rould be received, sect. 6. The 23 Vie. o. 57, has therefore cleared away the anomaly of having different amounts above which parol evidence could not be received, dependent on the court in whit h the suit was brought. If this $25 were changed into .£10 stgr., almost all distinction, in so far as regards evidence, between commercial and non-commercial cases wo uld disappear. EVI 113 Evidenck : must be had, under the Ordinance 25 Geo. IIT, c. 2, sect. 10, [Con. St. L. C, cap. 82, sec. 17,] and therefore a sale of goods, for more than £10 sterling, is not good, if no part of the goods contracted for has been delivered, no earnest given, nor any memorandum thereof in writing made. Hunt vs. Bruce Sf al., P. R., p. "8. 3. An agreement entered into by a contractor to share in the profits of the undertaking, although the contract was not capable of being completed within a year, is not such an agreement, as by the Statute of Frauds, 29, Car. II., c. 3, s. 4, is required to be in writing, but may be proved by parol evidence. McKay vs. Rutherford, P. C, 6 Moore's Rep., p. 414. 4. In the case of the purchase of a cargo of salt on board a vessel lyingin the river without a memorandum in writing, the resale of such goods is a sufficient acceptance to take the case out. of the Statute of Frauds. Jackson vs. Fraser, S. C, 12 L. C. R.. p. 108. 5. The transactions of tradesmen and citizens in the way of their trade, are to be considered as commercial matters ; and in all actions brought upon such transactions, recourse must be had to the Knglish rules of evidence under the Ordinance 25 Geo. III., c. 2, sec. 10, [C. St. L. % cap. 82, sect. 17] and generally in all cases which, by the law of France, were cognizable by the consular jurisdiction. Pozer vs. Meilclejohn, S. R., p. 122, and P. R., p. 11. 6. The English rules of evidence are applicable in a con- tract entered into by persons in Canada with the govern- ment, to supply stone for making a canal. McKay and Rutherford, P. C, 6 Moore's Rep., p. 414. 7. And the English rules of evidence are applicable in an action on a contract for building a house and furnishing materials. Mc'irath vs Lloyd, S. C, 1 L. C. J., p. 17. And the sale of a waggon arid -it harness by a hotel-keeper (plaintiff's cedant) to the delendant, described as cultiratrur and commercant , is a commercial fact, and may be proved by parol evidence. Vandd vs. Grenier, S. C, b' L. C. R., p. 475. 8. And in a commercial case verbal testimony may be adduced in explanation of the contents of a written docu- ment, the meaning of which may not be perfectly clear. Gurth is. Woodbury et id., S. C, 1 L. C. J., p. 43. Confirmed in Appeal, 1st. March, 1S58. And in a case of Fahey et al., and Jackson el al., Q. B., 7 L. C. R., p. 27, Fahey and another, bricklayers and masons, hiving undertaken lo make certain masonry, und r a written agreement, for Jackson & Co., on the Quebec and Richmond Railroad.; and having, during the progress of the work been employed with their men at some extra work, by the day, they brought an action against Jackson & Co., and produced their brother «s a wit- ness to prove such e.vtr.i work. His evidence was held to be inadmissible by the Judge at enquite. The ruling was not submitted for revision to the Mi p. nor Court; but other parol evidence was admitted by the Judge at eiiquete de I ene esse. The action was dismissed in the superior Court, 8 114 EVI Evidence : — and on appeal to the Q. B. it was held, that the case was a commercial one, and that the evidence was to be governed by the English rules of evidence, and the ruling of the Judge at enquite, althought it had not been objected to in the Superior Court, was revised. But in the case of Carden et al., vs. Finley et al., S. C, 3 L. C. J., p. 232, it was held that the payment of a promissory note payable to order, as between parties not traders, cannot be proved by witnesses. 9. The proof of a contract made in a foreign country, ought to be made before our Courts, according to the law of the country where the contract was made. Wilson vs. Perry and Perry, T. S., S. C, 4 L. C. J., p. 17. 10. Although a different rule obtained formerly, (Routhier vs. Robitaille, S. R., p. 440,) it is now well established, that a notary, or the notaries, who have received, or the timoins instrumentaires, who have witnessed the execution of a will or other authentic instrument, are competent wit- nesses upon an inscription de faux, impugning the validity of such will or other authentic instrument. Welling vs. Parant, S. C, 4 L. C, R., p. 228. And so also in Taillefer et al., vs. Taillefer et al., S. C, L. R., p. 32. And Larallee et al., vs. Demontigny, S. C, 4 L. C. J., p. 47. And the certificate of a notary, as to the state of mind of a party at the time of making her will, that she was saine d'entende- ment, is mere matter of style, and may be contradicted by parol evidence, and the notary is not bound to write the minute of the will with his own hand. Clarke vs. Clarke et al., S. C, 2 L. C. R., p. 11. But the temoins instrumen- taires to an act against which there is an inscription en faux, are not sufficient of themselves to establish the faux. Meunier vs. Cardinal, S. C, L. R., p. 28, and L-nallee et «:. 14. EVI 115 Evidence : — having had that advantage under the Act 23 Vic. c. 57, s. 51, which had become law during the enquSte. Vanier vs. Falkner, S. C, 6 L. C. J., p. 251. 16. A similarity of interest only affects the credibility of a witness, not his competency. So members of a corporation of a parish, or a fabrique, [C. St. L. C, cap 82, sec. 14s ss. 2,] are competent witnesses in suits in which the fabrique is a party or is interested. The Quebec Fire Insurance Co., vs. Mohon et al., S. C, 1 L. C. R., p. 236. Also the case of Moss vs. Carmichael, and the Railroad Car Company, S. C, 3 L. C. J., p. 166. And a party who is to be paid for services reudered to a company, out of the shares of such company, which shares have not been delivered to him, is a good witness on the part of the company, in an action brought against ;hem to enforce a commercial contract, his interest being contingent, not absolute. Kennedy vs. The Aylmer Mutual Steam Mill Company, S. C, 4 L. C. R., p. 86. 17. Letters written by the agent of an insurance company to his principal, the defendant, after the loss had accrued, cannot be used in evidence against the company. But the contemporaneous representations made by the insured to other insurers of the same subject, may be legally proved by the defendants. Grant vs. The JEtna Insurance Co., 11 L. C. R., p. 128. Def ndant may be a witness for his co-defendants, if he be not interested, or if his interest be removed by his discharge. The Bank of British North America vs. Cuvillier et al., S. C, 2 L. C. J., p. 154. But in the case of Ouimet et al. vs. Senecal et al., S. C.,- 3 L. C. J., p. 179, it was held, that a party to the record cannot be a witness, although not interested in the issue sought to be proved. But in the same case, (ib. p. 182,) the contrary was held.* And in the case of Brown vs. Mailloux et al., S. C, 9 L. C. R., p. 252, it was held, in the Superior Court, on an action on a promissory note, that.the evidence of one of the several defendants, although insolvent, is inadmissible to prove that he subsequently gave the plaintiff a note in payment of the one sued upon, on the ground that he is a party to the issue. But in the case of Woodbury and Garth, decided in the Q. B., 9 L. C. R., p. 438, the signer of a promissory note sued with the endorser, may be a witness in favor of the endorser. And in an action on a promissory note, where defendant pleads usury, a party also liable to plaintiff on the same note, is a competent witness to prove such usury. Malo vs. Nye, S. C, 1 L. C. J., p. 11. But a person who receives money from the maker of a note before its maturity, and undertakes to pay it, is not a competent witness for the defendant in an action against the maker, to prove that he did so ; for in the event of a judgment for the plaintiff, he would be liable over to the defendant for the costs of such action, as damages for the non-fulfilment of his undertaking. Fraser vs. Bradford, S. C, 1 L. C. J., p. 1 10. 18. A defendant may now be a witness for his co-defen- dant, 23 Vic. cap. 57, sect. 51, [Con. Sts. L. C, cap. 82, sect. 14, s. s. 2.] * Since the passing of the 23 Vic. e. 57, this case suflera no difficulty. 8« 116 EVI Evidence : — 19. The existence of a co partnership cannot be proved by the admission on faits et articles of one of the alleged partners as against the other. Bowker et al. vs. Chandler, H. C, L. R., p. 12. Also Chapman vs. Masson, S. C, 2 L. C. J., p. 216 ; and 8 L. C. R ., p. 225. Confirmed in Q. B., 9 L. C. R., p. 422. 20. A pilot of a raft may be a witness lor his employer in an action against the latter for damages to a wharf by the raft coming in contact with it. Laurin vs. Pollock &f al., S. C, L. R., p. 43. But persons who have the control and direction of vessels, or who are interested in clearing them- selves of fault, and throwing it upon the other party, are incompetent to give evidence. The Mary Campbell, p. 222, S. V. A. R. And so in an action against the master of a ship for damages done to a wharf by collision of the vessel with the wharf, the branch pilot in charge is not a com- petent witness. The Harbour Commissioners of Montreal vs. Grange, Q. B., 10 L. C. R., p. "259. 21. As to the evidence of the master in suits with seamen, or in a case of pilotage. The Sophia, p. 96, S. V. A. R. 1 : l. In the Vice-Admiralty Court the testimony of the bail of the defendant will be rejected, he being an incom- petent witness. Tfie Sophia, p. 219, S. V. A. R. 23. An agreement varying the contract of wages in the ship's articles cannot be proved by parol evidence. The Sophia, p. 219, S. V. A. R. 24. In a suit for wages, service and good conduct are to be presumed till disproved The Agnes, p. 53, S. V. A. R. 25. In a suit for personal damage brought by a passenger against the master of a vessel, the Court will look to the education and condition in life of the persons who give the evidence, not only as entitling them to full credit for veracity, but also to greater accuracy of observation, and a greater sense of the proprieties of life. The Toronto, p. 170, S. V. A. R. 26. In cases of collision it is necessary to prove fault on the part of the persons on board of the vessel charged as the wrong-doer, or fault of the persons on board of that vessel and of those on board of the injured vessel. The Sarah Ann, p. 294, S. V. A. R. 27. More credit is to be attached to the crew that are on the alert than to the crew of the vessel that is placed at rest. The Dahlia, p. 242, S. V. A. R. 28. In an action by the endorser of a Bill of Exchange against the acceptors, the plaintiff cannot at the hearing on the merits move to reject the evidence of the drawer who proves the Bill to have been accepted for his own accommodation ; the interrogations proposed by the defend- ants, and annexed to a commission rogatoire for the examina- tion of t'ie drawer having been allowed by consent, and the witness >wearing he has no interest in the event of the cause. Taylor vs Arthur et al., S. C, 4 L. C. R., p. 41 5. But now mere interest is no longer a bar to the examination of a witness. David vs. McDonald et al., S. C, 5 L,C. J., p. 164. Also 11 L. C. R., p. 116. evi 117 Evidence : — 29. A power of attorney executed, sous seing prive, in Upper Canada and duly attested by a notary public of Upper Canada under his seal of office, with a certificate of the administrator of the Government of this Province annexed, does not prove itself. Nye vs. McDonald, S. C, 2 L. C. J., p. 109. 30. The copy, certified by a Registrar, of an authentic deed, registered at length, is not evidence. Dessein vs. Ross, 2 Rev. de Leg., p. 58. Also Nye and Golvillc et al, Q. B., 3 L. C. R., p. 97. 31. In an action brought by a curator to the vacant estate and succession of a party deceased, the filing of an acte of curatorship will be sufficient evidence of the death of the party, more particularly if the defendant has not expressly -denied the quality assumed by the plaintiff", or the fact of the death of the party deceased. Pemberton et al. vs. Demers, S. C, 1 L, C. R., p. 308. 32. And a partition among co-heirs, duly homologated, is evidence, as against third parties, of the quality assumed by such heirs, and it is not necessary that certificates of baptism and of marriage should be produced. Mallory and Hart, Q. B.,2 L. C. R.,p. 34,5. 33. Tt is not necessary to prove, by parol evidence, the identity of real estate if such identity is established by the similarity of the descriptions in the deeds. Moreau vs. Riches, S. C, 1 L. C. R., p. 106. 34. A mortgagor who undertook to effect an insurance for a mortgagee, in order to secure the murtgage, is admissible as a witness, to prove that the insurance was effected when no policy had issued ; and evidence of the admission of the manager, about the time that an insurance had been effected and of his promise to grant a policy, is admissible. The Montreal Assurance Company and McGillivray, Q. B., 2 L. C. J., p. 221. 35. The parol testimony of an agent of an insurance com- pany is sufficient evidence that a misdescription in a policy of insurance- is due to his, the agent's, fault. Somers vs. The Atherueum Insurance Society, S. C, 3 L. C. J., p. 67. 36. The payment of money in a non-commercial case may be proved by witnesses who witnessed a receipt signed by the party receiving the money, with a cross, in their presence ; and in the examination of such witnesses it is irregular to begin by asking whether the amount had not been paid. Neveu, pe~re et al. vs. DeBleury, S. C, 3 L. C. J., p. 87. And in the same case it was subsequently held, that the payment of a sum of money may be proved by the attesting witness to a receipt signed with a mark, made by the party receiving the money. Q. B., 6 L. C. J., p. 151 ; also 12 L. C. R., p. 117. See Infra, No. 57. 37. Parol testimony cannot be admitted to prove a verbal warranty, where ihere is a memorandum of sale which appears to set up the transaction ; as such evidence would tend to control the written contract. Fry and the Richelieu Co. Q. B., 9 L. C R., p. 406. 118 EVI Evidence : — 38. Parol evidence is admissible to establish that aa endorser agreed to waive protest. Johnston et al. vs. Geoffrion, S. C, 13 L. C. R., p. 161. 39. The books of a Bank are not evidence in its favor to prove payments made by such Bank. Brooke vs. The City Bank. S. C, 1 L. C. R., p. 112. But a written statement furnished by a bank to a depositor will be taken as evidence against the bank, where there is no evidence to show error. Morris et al. vs. JJnwin et al., S. C, 4 L. C. R., p. 235. 40. A clerk is^incompetent to prove that a receipt given by him, for his employer, to a customer for a sum of muney, was given by error, and that he did not actually receive the money acknowledged by the receipt. Whitney vs. Clarke, S. C, 3 L. C. J., p. 89. But this case was reversed in appeal, Q. B., 9 L. C. R., p. 339; and 3 L. C. J., p. 318,^-where it was held, that a clerk is competent to prm e that a receipt given by him, for his employer, to a customer for a sum of money, was given by error, and that he did not actually receive the money acknowledged by the receipt. 41. The return of the vouchers and evidence of debt by the creditor on signing a deed of atermoiement, does not necessarily imply that he has made novation of the original debt, so as only to be able to recover on the composition in case of the debtor failing to pay the instalments stipulated by the composition. On an action for the whole original debt, the deed of com- position and the parol evidence of the debtor's book- keeper, that the balance mentioned in the composition was re.illy that due, will be sufficient to maintain the action. Brown et al. rs. Hartigan, S. C, 5 L. C. J., p. +1. 4:2. The former deposition of a witness may be used or read to him upon a subsequent examination, though in a different proceeding, to refresh his memory. The City Bank vs. Coles, S. C, 2 L. C. R., p. 16. 43. A witness who has been examined orally, before a Judge who took notes of the evidence, and it became neces- sary to proceed, de novo, with the evidence, the witness having died in the mean time, it was held to be competent to ihe party who had produced such witness to prove what he had stated under oath upon the occasion of his examina- tion. And what si.ch witness staled can be proved by any p rson present upon the occasion of his examination, and the Judge who had taken notes ought not to be called upon to testify as to what the deceased witness had declared. Sa.vard vs. Vallee, S. C.,4 L. C. II., p. 85. And if a witness be beyond the jurisdiction of the Court, his deposition taken in a former suit between the same parties, the matters in issue being the same, may be produced. Roe vs. Jones, S. C. 3 I,. C. R., p. 58. 44. In a petitory action, where the defendant-pleads pos- session of 30yp;irs by himself and his aut.eurs without title, it s nily necessary fiir him to produce parol evidence to connect the possession of defendant with the parties pre- viously in possession as his luteurs aud predecessors. Siod~ dart, vs. Lefebvre, S. C, 11 L. C. R.. n. 286. EVI 119 Evidence : — 45. All documentary evidence relative to the issues raised between two opposants must be filed by such opposants, and it is not sufficient that such evidence be already filed by other parties to the record. Kelly vs. Fraser, S. C, 2 L. C. * R., p. 368. 46. A defendant cannot be compelled to appear, before the return of a writ of summons to show cause why a certain witness, about to leave the province, should not be examined ; depositions taken under such circumstances are illegally taken, and the Inferior Court, before adjudicating: upon the merits of the action, ought to have determined as to the validity of such evidence, so as to afford the party an oppor- tunity of substituting legal evidence in lieu thereof, undersuch circumstances the party whose evidence has been rejected will be allowed to re-open his enquite. Malone and Tate, Q. B., 2LC. R., p. 99. But in Supple and Kennedy, Q. B., 10 L. C. R., p. 458, it was held that a witness about to leave the province ean, under the 25th Geo. Ill, c. 2, sec. 12, fCon. St. L. C, cap. 83, sect. 101, &s. 2 ,] be examined before the return of the action. 47. If there are several issues, such as a plea to the ac- t on, and a special answer to such pl-ea, and a general in- scription for the adduction of evidence, althoughtthe proof of the special answer, alleging chose jugee as to the matters contained in the plea to the action, if made out, would be a bar to any further proceedings upon such plea, a Judge in Chambers has no power to restrict and limit the proof, in the first instance, to the special answer, and such limitation can only be ordered by the Court Brush S/-al.,vs. Wilson Sral., S. C, 4 L. C. R., p. 454. 48. Defendants sued as co-partners, carrying on trade under the name of " The Montreal Railroad Car Company," may prove, under Ihe general issue, that the company was incor|iorated, and that the debt sued on was a debt of the corporation. Edmonstone $■ til vs. Childs Sf al., S. C, 2 L. .C. J., p. 192. 49. When a gardien in answer to a rule for contrainte par carps, pleads that the property is only worth a particular amount, the onus prob indi falls on him. Leverson Sfal. and Boston, Q. B., 2 L. C. J., p. 297. 50. In an action for slander where the plaintiff, in answer to a plea of prescription, pleads that the slanderous expres- sions did not come to her knowledge until within a year and a day before commencement of such action, the onus probandi is on the plaintiff. Ferguson and Gklmour, Q. 6., 1 L. C. J, p. 131. 51. The onus probandi of the d< ath of a lejrntee, previous to that of the testator tails on the party alleging it. Bonacina vs. Bonacina and Mcintosh, S. C, 10 L. C. R., p. 79. Con- firmed in appeal, 11 L.C. R-, p. 327. 52. The description given by a person of his sufferings, while laboring under disease and in pain, is not deemed hear- say evidence, and may be admitted in a criminal case. The prisonner C6saree Theriault was arrested by the constable C. and while in his custody and in his house, G., a magistrate, 120 E V I Evidence : — came in, and said in her presence, " She had better turn Queen's evidence ?" to which C. answered — " There are some preliminary proceedings to be adopted before." It was held that confessions made subsequently, on the same day or the next, by the prisonner to C, to his wife and to another constable, were not admissible in evidence, as such, as the prisoner was in the custody of these people, when G. spoke to him, and inasmuch as she might be under the influence of the hope held out to her by G.; but a conlession made to the physician, who had no authority over her, and out of the presence of a peace officer, was admitted. 53. To render the proof of a declaratio/i admissible as a dying declaration, there must be positive proof that the per- son who made it was, at the time, under the impression of almost immediate dissolution, and entertained no hope of recovery. And vague and general expressions such as " I shall die of it" — " I shall not recover" — " It is all over with me," are insufficient to allow the proof of the declara- tions of the deceased person. Regina vs. Peltier, S. C, 4 L. C. R., p. 3. 54. A chi!d, whatever be his age, if he can distinguish between good and evil, may be examined as a witness. Regina vs. Berube Sf ux , Q. B., 3 L. C. R., p. 212. 55. On a plea of fraud, general evidence may outweigh the positive testimony of witnesses, where the evidence of these witnesses is not consistent, and where the presump- tions adduced are against its truth. Grenier fy vir vs. The Monarch Life Assurance Company, S. C, 3 L. C. J., p. 100. 56. In an action for breach of promise of marriage a com- mencement de preuve par ecrit is required. Asselin vs. Belleau, 1 Rev, de Leg. p. 46. And a contract of an execu'ory nature cannot be proved, even under the empire of the French law without a commencement de preuve par ecrit. Trudeau (J- al. vs. Menard, S. C., 3 L. C. J., p. 52. 57. An admission on faits et articles, in an action for money lent, that the money was paid for money due, there being no plea in the record to that effect, is a sufficient com- mencement de preuve par ecrit. Ford vs. Butler. S. C, 6 L. C. J., p. 132. And across or mark may be a commencement de preuve par ecrit. See Supra, No. 36. 58. On the 23rd October 1855, R. acknowledged a transfer as made to him by N., of his rights in a certain lot of bind, and agreed to take N.'s inierest in the lot and '• allow him upon debts'' due to R. whatever two persons named " shall appraise it worth." On the 19th June, 1856. the persons so named estimated the value of N.'s interest in the lot, stud awarded " that R. shall allow N. $300 upon the debts he now holds against N. or pay him the money." On the 29th March, 1859. N. instituted an action against R. for the sum of $300. setting up the submission and appraisal, alleging that R. had refused to deduct or allow the $300 from the debts due, and had compelled him to pay the debts in full. E V I to E X E X21 Evidence : — The defendant pleaded payment, and set up a claim on notes filed, to the extent of $1573 53 and that a settlement had been made and deduction allowed of the $300 on the 8th September, 1856, he also pleaded compensation and the general issue. The plaintiff produced with his answer R.'s receipt for $650 of the 8th September, 1856, in full of all obligations, judgments, notes, executions and book accounts, and alleged that this amount was more than was due on the notes referred to, and that the whole of the notes were paid in cash. And it was held that parol evidence was inadmissible to prove conversations between the plaintiff and defendant as to the settlement and deduction of the $300, or that N. had admitted such deduction and settlement at the date of the receipt. Rowett and Nfwton, Q. B., 10 L. C. R. , p. 437. 59. Parol evidence is inadmissible to prove that an in- dorser of a promissory note, indorsed in blank, agreed to. take such note solely on the credit of the maker, without recourse against the indorses. Chamberbn vs. Ball, Q. B., 5 L C. J., p. 88. 60. In an action of assumpsit, if it be proved that the plaintiff has a partner who was a party to the contract, and who is not joined in the suit, the action will be dismissed, although the defendant has not pleaded the facts specially. Pozes vs*. Chapham, S. R.., p. 122. -Vide Appeal. - " Broker. - " Insurance. - " Master and Servant. - " Notary. ■ " Prescription. • " Promissory Notes. • " Protest. • " Slander. « — « Transfer. Evocation : — An evocation will be allowed in a suit for a rente viagire brought in the Circuit Court. Dalpe dit Parizeau is. Brodeur Sf ux., S. C, 9 L. C. R., p. 56. Exception a la forme :, — Vide Pleading and Practice. Exception declinatoire : — Vide Pleading and Practice. Exception dilatoire : — Vide Pleading and Practice- Exchange : — Vide Lods et Vente. Execution — 1. Under the 40th section C. S. L. C, c. 83 a defend- ant, opposant, is bound to allese aad prove that he has property in the district where the judgment was rendered, in order to suspend the execution of the writ in another district. Rose vs. Coutlee, 8. C , 12 L. C. R., p. 403. Massue vs. Crebass and Creiassa, S. C, 7 L. C. J., p. 225/ 2. It is not competent for the sheriff, in ease of saisie-arr@t en main rieree, to seize corporeally as the property of the defendant, effects in the hands of a third party, and a seizure so made is null and void, and will be quashed and set aside, on motion made to that end by any party legally interested. Fleck os. St fi. 122 EXE Execution : — Moveables : — 1. The execution of a moveable, such as a floating dock, is null and void if the party upon whom it was seized was not previously requested to pay, if a copy of the saisie was not left with the party seized upon, if the bailiff who gave the notice was not authorized by the sheriff- so to do, if such notice did not indicate the place of sale, and if the purchaser was the agent of the party seized upon, and as such subject to the imputation of fraud. Longmuir and Ross et al., Q. B., 1 L. C. R., p. 71. And when by a s 4sie mobiliire thebaillifF, by his procis-verbal declares that he fleets his domicile in a particular parish, without specifying in what part of it, the saisie will be declared null, and a notice of sale, at the foot of the proces-verbal, for a specified day of the month, without mention of the year, is null, although such prods verbal be fully and correctly dated. Beaupre vs. Mnrtel and Mattel, S. C, 2 L. C. J., p. 276. But in the case of Zee vs. Lampson, 2 L. C. R., p. 148, it was held, that upon the seizure of moveables under a writ of fieri facias, no demand of payment is necessary. Also, Massue vs. Crebassa and Crebassa, S. C, 7 L. C. J„ p. 225. 2. On & venditioni exponas against moveables, it is not necessary 1o have a proces verbal de recollement. Lesperunce vs. Langenin and hangevin, S. C, 1 L. C. R., p. 279. 3. The seizure of moveables under a writ of fieri facias in the hands of the plaintiffs, is bad, — the manner of pro- ceeding is by saisie- arrSt. Mor/is et al., vs. Antrobus and Antrobus. S. C, 1 L. C. R., p. 114. 4. Books of account, litres de creance, and papers belonging to defendant, and in his possession, are in^aisissables. Fraser vs. Loiselle, S. C, 5 L. C. R., p. 299. And the sword of a military man is exempt from seizure, as being part of his necessary military equipment. Wade vs. Iiussey and Hussey, S. C, 8 L. C. R., p. 511. And money payable by the revenue to an informer under the Statute 14 nd 15 Vic, c. 100 [C. St. L. C, cap. 6], is not liable to sei lire. Leclerc vs. Caron, S. C'., 8 L. C. R. p. '-87. And damages for personal wrongs are not liable to seizure. Chef is. Leonard $• al., and Decary, Sf at., S. C, 6 L. C. J., p. 305, also 13 L. C. R., p. 74. And the salary of a teacher cannot be seized. Roy vs Coder e et les Commissaires d'Ecole de St. Ours and Meilleur, T. S , S. C, L. II., p. 59. 5. Shares in the stock of an incorporated company cannot be taken in execution in the manner provided by the Statute 12 Vic. c. 23, fC. St. C., cap. 70.] Bruneau rs. Fosbroke and Fosbroke, S. C, 1 L. C. R , p. 9-'. 6. In order to render the seizure and sale of a registered vessel valid, the formalities pointed out by the Act 8 Vic. c 5, sect. 16, [C. Sts. C.,c. 41, sect. 16,] must be complied with. Cusack if al. vs. Talon, S. C, 3 L. C. R., p. 471. 7. A vessel which hai been fraudulently sold by an insolvent debtor, subsequently to the institution of an action against him, could not nevertheless be seized de piano, inas- much as the vessel had passed into Lhe hinds of the pur- chaser, and that it was in the first place necessary that the contract should be annulled, as fraudulent by means of a revocatory action. Chaille and Brune/le, Q. B., 6 L. C, R., a. 4iS. EXE 12 3 Execution: — Immoveables: — 1. Moveables and immoveables may be seized simultaneously under one and the same writ of execution. Kierzkowski vs. Lesperance and Lesperance, opposant, 1 L. C. J., p. 193, and 7 L. C v R. p. 359. 2. And the immoveable properly of a defendant may be seized at the same time as his moveables ; but his moveables must be first sold. And when the return of the bailliff sets forth that he has no moveables, proceedings to set iiside this return must be taken before an opposition can be filed to set aside the seizure, on the ground that the move- ables should be first seized and sold, Paige vs. Suvard, S. C, 11 L. C. R., p. 3. 3. Upon the seizure of real estate, the absence of a wit- ness (recor) to the seizure, the want of an election of domicile by the party seizing and by the bailiff, the omission to *tate whether the seizure was effected before or after twelve o'clock, and that a demand of payment was made, when such execution is directed against the moveables only, are not sufficient grounds to impugn the validity of such seizure. The return of the sheriff that the advertise- ments and publications of the sale have been made is con- clusive until such return is declared false. A party against whom execution has issued, and who has failed to make opposition within the period prescribed by the 41 Geo. III., c. 7, sect. 1 1, [Con. St. L. C, cap. 85, sec. l.\,] is for ever precluded from the right of availing himself of any irregu- larities in the seizure of his immoveables and oi ihe pro- ceedings thereon. Boyer vs. Slown fy a/., 2 L. C. R., p. 53. And in the case of Guilfoyle vs. Tate et >i.l., and Tate et ai., opposants, S. C, 1 L. C. J., p. 18K, it was held that the presence and co-operation of recors is wholly unnecessary for the validity of the seizure. And in the cnxeoiLesperan.ee and AUard et al.,Q. B., 1 L. C. R., p. lf>4-. it was held — that an opposition to annul the seizure of real estate cannot be received within the fifteen days preceding the day fixed for the sale, even with the order of a Judge. 4-. If a plaintiff have, by his own fault and neglect, caused an immoveable property ■ to be seized under an inaccurate description, the party seized, having an interest that such description be correct may demand the nullity of ,such seizure, with costs against such plaintiff. Bitpnis vs. Bour- dages. S. C, 4 L. C. It., p. 227. 5. In the case of the seizure of real estate it is not neces- sary to mention in the prods-verbal and notices, the contents of the property seized; and the respondent having sold the real estate in question without mentioning its contents, cannot urge the absence thereof in the proce's-verbal.. Berthelet and Guy et al., Q. B., 8 L. C. R., p. 299. Also 2 L. C. J., p.p. 164- l6o. 6. When the boundaries of a lot are given with minute- ness, and the extent of the boundary line so as to render it impossible to be in doubt as to the identity of the property seized, the seizure will not be set aside although a building forming two houses is described as " a house." Anderson et aL, and Lapensee, S. C, 9 L. C. R., p. 69 ; also, in another case of Palmer vs. Lapensee. lb. 124 EXE Execution: — Immoveables : — 7. A writ de terns issued generally in satisfaction of an hypothecary judgment for an amount less than .£10 Cy., is illegal ; such writ being only allowed specially against the lands declared to be hypothecated. Goirie is. Herbert, and Herbert opposant. S. C, 1 L. C. J., p. 173. 8. When a defendant has paid sums of money on account of a judgment, the seizure of his lands afterwards on a writ of execution issued for the whole amount of the judgment is illegal, and the defendant has a right to have the writ stayed till the exact amount due on the judgment be deter- mined. Banque du Peuple vs. Donegani, 8. C, 3 L. C. R., p.. 478. And so also in Fournier and, Russell, Q. B., 7 L. C. £t., p. 130. And likewise an opposition may be filed to a venditioni exponas, if credit be not given on the face of the writ for sums paid since the judgment. Est.y vs. Judd et al., and Judd et al., S C, 3 L. C. J., p. 73. And. a creditor suing out execution must give credit upon the writ for any amount he may have received, and an opposition of the defendant founded upon this omission must be maintained with costs. Fournier and Russel, Q. B. 10 L. C. R., p. 367. 9. An execution issued nn a judgment against several defendants jointly, directed against one of them for the whole debt, is illegal, and will be set aside on opposition, without even a tender of the amount really payable by such defendant. McBean vs. DeBartzch. and DeBartzch et id., mis en cause, and ; rummond, oppo-ant, S. C, 3 L. C. J., p. 1 18. 10. The signification of a saisir-arrSt by a creditor of the plaintiff, to a defendant, against whom execution has issued, has not the effect of stopping proceedings under the execu- tion, and to produce that effect, the defendant must deposit the amount of the judgment obtained against him, in prin- cipal interest and costs. Duiernay vs. Dessaulles, S. C.,4 L. C. R., p. 142. 11. A.n opposition cannot be maintained on the ground that the bailiff making the seizure was not a sheriff's bailiff, the writ of execution having been delivered to him by the sheriff. Freligh i>s. Seymour, S. C, 8 L. C. R., p. 256. 12. Execution of a judgment en separation de biens, is sufficiently affected, by the renunciation i f the wife to the community, duly insinuated. Senecal and Labelle, S. C, 1 L. C. J., p. 273. 13. Execution cannot be issued against any of several defendants, if one of them have appealed, and if such appeal be still pending. Brush et al.,vs. Wilson el al., fcj. C, 6 L. C. R., p. 39. 14. Where two executions issue at the suit of different parties against the same defendant, the sheriff cannot unite both seizures in one procis-ierbal. Sanderson vs. Roy dit L pensee. and Roy dit Lapensee upposan!, ^. C, 3 L. C. J., p. 1 1M. And also in a case of Paliser and Roy dit Lapen ee, Q. B., 9 L. C. R., p. 456, and 4 L. C. J., p 20«. 15. A saisie which is not acted on for two months ceases to exist. Scholefield et al. vs. Rodden etal , ti. C, 5 L. C. J., p. 332. ". : — Vide Assignment. " : — " Gardien: — Vide McFarlane vs. Draper, 1 L. C.R., p. 9i, EXE to EXP 125 Executor : — 1. An action may be rightly brought by a party as exe- cutrix of a will made in Ireland, without alleging in the declaration that by the law of Ireland an action accrued to her as such executrix. Grainger et al. unci Parke, Q. B., 10 L. C, R., p. 350. 2. An action lies by the makers of a promissory note against the executors of the payee, to get possession of the note paid by one of them in part to the payee thereof, and iu part to the executors. And in such an action the evidence is to be regulated by the law of England. Garden et al. unci Finley et al., Q. B., 10 L. C. E., p. 255. " : — Vide Hypotheque. " :— " Will. Exhibit: — 1. The insufficiency of an exhibit is not a legal ground for its rejection from the record. Strother vs. Torrance, !S. C, 1 L. C. J., p. 83. 2. An exhibit filed by a party in a cause becomes common to all the parties. La Banque clu Peuple and Gugy, Q. B., 9 L. C. R., p. 484. 3. The ?6th section of the Judicature Act of 1857, 20 Vic. c. 44 [Con. Stat. L. C, cap. 83, sec. 88], has virtually repealed the 24th rule of practice of the Superior Court requiring the filing of exhibits, on which a declaration or oiher pleading is founded at the time such pleading is filed. Denis vs. Craw- ford, S. C, 4 L. C. J., p. 147. 4. Copies of old plans, produced by party in support of his pretensions, will be considered as exhibits and taxed as such. Brown vs. Gugy, S. C, 12 L. C. R., p. 413. 5. Papers in support of a contestation need not be filed with the contestation. Bonneau vs. Moquin if Moquin, S. C, L. R., p. 29. Exhibition de Titres : — In consequence of the passing of the Sei- gniorial Act of 1854, Exhilrition de titres can not now be claimed. Dumont et al is. Chaurette, S. C, 1 L. C. J., p. 186. Exparte : — When the defendant has not appeared in an action, and the default has been duly recorded, a motion to proceed ex parte, is not necessary. Kershaio vs. Deslide Sf al., S. C, 1 L. C. R., p. 494. Experts : — 1. The costs of expertise are in the discretion of the Court, and in the exercise of such discretion, tae Court will at least divide them between the parties, when the report has the effect of materially reducing the plaintiff's demand. Gard- ner vs. McDonald, S. C.,2 L. C. J., p. 208. 2. The Court will order the report of experts or arbitrators to be opened before the costs of making such report be paid notwithstanding the prohibition of the experts or arbitrators. Duchesnay vs. Giard, S. C, 4 L. O. J., p. 9. 3. An expert appointed by the Court, though at the sug- gestion of one of the parties, has an action against both, for remuneration of his services. Wallace vs. Brown, S. C, 10 L. C. R., p. 189. But in appeal it was held, that an expert named by a party or. by the Court on the selection of any party, has no recourse for the payment of his disbursements, costs and charges, but against such party, the other party 126 EXP to EXT Experts : — ' '* or parties to the suit not being obliged jointly and severally in favor of such experts. Brown and Wallace, Q. B., 5 L. C. J., p. 60 ; and 1 1 L. C. R., p. 182. 4. A person who has acted as an expert in a cause, in which the expertise was set aside and a new one ordered, may be recused as expert at the second expertise. Auclaire vs. Lo ',, 6. C, 5 I,. C. J., p. 223. 5. A report of experts will be set aside it appearing that one of the p irties, the defendant, was not notified of the day fix'-d for the expertise, and that the experts heard the plaintiff's witnesses and proceeded ex parte against the de- fendant. Waters vs. Veronneau, S. (;., 6 L. C. Ft., p. 482. Also in the case of L imarche vs. Johnston and Johnston, S. C, 5 L. C. J., p. 336. 6. The reference to an accountant is not sanctioned under the Judicature Act of 1857, 20 Vic. c. 44, sec 92, [Con. St. L. C, cap. 83, sec. 80.] in a case not involving the settle- ment of accounts, and under this section reports of account- ants must be acted upon and homologated in the same way as reports of experts. Elliott and Howrd, Q. B., 10 L. C, R., p. 317. 7. In the case of Hutchinson and Gillespie Sf al., decided in 1838. the Privy Council, pursuant to the powers contained in the 3 & 4 Wm. IV, c. 41 s. 17, and notwithstanding the dissent of the respondent's counsel, ordered a reference to take accounts, &c. 2 Moore's Rep., p. 243. Also 3 Kev. de Leg. p. 427. 8. Experts have no right to name a third expertbefore pro- ceeding, stud before any disagreement, has taken place. Brodi* Sf al , vs. Coivanji. C, 7 L. C. J., p. 96. Expropriation: — The Court cannot be called upon to inquire as to the validity or invalidity of the proceedings had in the spe- cial jurisdiction of the Justices of the Peace, or of the report or verdict ol the Jury therein summoned, in a matter of laud taken for public use under the authority if die Act of 1S51, (14 & 15 Vic. c. 12S.) Be . 399. " : — Vide Beaudry vs. Guenette and Corporation of Montreal, S>. C., L . }>. 46. Extradition : — Vide Fugitives. FAB to F A I 127 Fabrique : — 1. At meetings of the fabrique, the Cure has no right to preside, the marguillier en charge being the proper officer so to do; and any such meetings presided over by the Cure are null. And when the marguillier en charge cannot read nor write, a minute of the deliberations of the meeting ought to be drawn up by a Notary. Damour et al., vs. Guin- gue, S. C, 1 L. C. J., p. 94. But in the case of Senecal and Beauregard,. Q. B., 4 L. C. J., p. 213, it was held that the Cure hiis the right to preside at meetings of the fabrique, [Vide C. St. L. C., cap. 18, sec. 45.] 2. A workman who has contracted with the parish as corps et communaute d^habitants, represented by Syndics, can not bring his action against the Fabrique. Comle vs. Le Cure et Marguilliers de la paroisse de St. Edouard. 2 Rev. de Leg. p. 127. • A fabrique has a collective or corporate name in which it should sue and be sued. Exp. Lefort, for Certiorari, S. C, 6 L. C. J., p. 200. -Vide Insurance. " Mandamus. - " Marguillier. Factum : — An appeal will not be dismissed for want of a factum, if 1 the factum be produced at the lime the motion to dismiss is made. Dawson, and Belle, Q. B., 3 L. C. J., p. 256. F aits et Articles: — 1. The answers of a party to interrogatories sur f its et articles can only make proof against himself. Gregu y vs. Hensliaw and Fowke et al., 3 Rev. de Leg., p. 98. Bui the admission of one of several co partners on fails et articles binds the firm. Maguire and S'Ott, Q. B., 7 L. C. R., p. 451. And this even after the dissolution of the partner- ship. But the existence of a partnership cannot be proved by the admission of one of the alleged partners, chapman vs. Masson, S. C, 2 L. C. J., p. 216, and 8 L. C. R., p. 225. And also Bowker vs. Chandler, L. R., p. 12. 2. In the case of Oakley is. Morrogh et al., P. R., p. 19, it seems to have been held, that inacomm rcial matter, a party may examine his adversary on /aits et articles. And in an action in the nature of quo warranto, a party is obliged to answer intern >gatories on fails et articles. Lynch vs. Papm, S. C, L R., p. 71. 3.. And a refusal to answer interrogatories on Jaits et articles, i>r the answers thereto, supply, ii> commercial cases, the place of the memorandum in writing required by the Kbit lite of Frauds. Levey and Sponza,Q. B., 6 L. C. J., p. 183. 4. A director of a company is bound to answer interroga- tories sur faits et articles, which may be asked him touching the diver transactions of the directors. Lacroix is. Perrault de Liniire, L. (J., 3 L. C. J., p. 136. 5. Interrogatories sur faits el articles and rule need not be served personally in a default case, when the writ of sum- mons and declaration have been personally served. Tu/geon vs. Hague et a'., 6. C, I L. C. J., p. 270. But where plaintiff has gone out of the limits of the jurisdiction of the Court, and is domiciled on an island in Luke Union, the Court will # This ca-e was only confirmed in Appeal— Ihe Judges being equally divided. 128 FAI Faits et Articles : — not allow service of interrogatories sur faits et articles to be made on him at the Prothonotary's office. Bro vs. Bureau, i>. C, 4 L. C. R., p. 140. And in the case of an absentee, the service of a rule for the examination of the absentee upon interrogatories sur faits et articles made at the office of the Prothonotary is insufficient. Fenn vs. Bowlcer, H. C, 7 L. C. J., p. 297. • 6. The service and the return of a rule for faits- et articles, may be made before- the inscription- of the case on the rule d'enquite: Moreau et al., vs. Leonard, S. C, 3 L. C. J., p. 168. 7. A party summoned to answer interrogatories on faits et arti'ies has no right to demand to have his expenses paid before he is sworn. Mireau vs. Ratelle et al., S. C, 1 L. C U.,p. 277. / And so also in the ease of The Unity Insurance Fire Com- pany vs. Hickey et al., S. C, 7 L. C. J., p. V-99. 8. Where a party interrogated on faits et articles answers evasively, to the effect that he does not remember, when the matters inquired of must be presumedly within his know- ledge, the interrogatoriesJwill be taken pro confesses. Nye ■and Malo, Q. B., 2 L. C. J., p. 43. And where defendant was asked if he owed the debt and he answered that he did not know, without giving any reason for his ignorance, his ai.swer was taken as being equally to a confession and he was condemned. Benninger et al. vs. Gates, S. C. M., No. 748. Judgment 31st October, 1857. 9. A party interrogated upon faits et articles, and required to give in detail the consideration furnished to the defend- ants, by reason of which an obligation had been given by the latter, and to produce a detailed account of the goods and merchandize, if such was the consideration, is bound s to do so, and upon default, the interrogatories will be taken pro confess! s. And such party having refused to answer, when called upon to do so, cannot at the hearing upon the merits obtain permission so to do. Lantier and D'Aoust et al.,Q. B., 10 L. C. R., p. 497. 10. A motion -for a rule sur faits et articles to be served < n defendant's wife, is not a motion of course. The motion must ass i sin special grounds. Jamieson et al. vs. Boswell et al.. S. C.,6 L. C. R., p. 430. 11. In a contract in wr.ting for the building of a house, and the stipulation that no charge for extra work shall be made, unless the order for such extra work shall have been given expressly and in writing cannot exempt the proprietor from answering on faits et articles as to verbal orders given for the said works. And such a contract being of a commercial nature, oral evidence will be admitted. Kennedy etal.,and Smith, Q. B., 6 L. C. R., p. 260. 12. The default to appear and answer interrogatories on faits et articles, on the part of the plaintiff, will be taken off and the rule and interrogatories set aside, where such rule was issued during the pendency of a former rule, in the same cause. Cumming vs. Dickey and the School Com- missioners of Durham and Winchester, S. C.,4 L. C. J.,p. 131. F A I to FEE 129 Faits et Articles : — 13. A case is not concluded on the default of the defen- dant to answer interrogatories, sur faits et articles, if it is susceptible of further testimony. Guyon dit Lemoine vs. Lionnis, S. C, 7 L. C. J., p. 294. And a party to whom interrogatories, sur faits et articles, have been submitted may answer them at any time before the case is concluded, lb. But see Rules of Practice of 4th January, 1854. 14. An authentic copy of defendant's answers on faits et articles in another case may be used to prove facts alleged,, without the necessity of interrogating defeudant anew, either as to his identity or as to the answers in question. Clair - mont et al. vs. Dickson, S. C, 4 L. C. J., p. 6, confirmed in Q. B. 15. In an action en separation de biens the aveu of the husband, sur faits et articles, is inadmissible. t Moloney and Quinn, Q. B., 10 L. C. EL, p. 454. 16. Where a party interrogated on faits et articles whether he has not received the originals of certain letters addressed to him by the adverse party in the suit, it is irregular to pro- duce other letters not inquired of. Hearle and Dale, Q. B., 11 L. C. R.,p. 290. 17. A party called upon to answer faits et articles, vivd voce, under 20 Vic. c. 44, s. 86 [C. St. L. C, cap. 83, sec. 100J, will not be allowed to read his answers from a paper previously prepared. Colman et al vs. Fai/bairn, S.C.,4 L. C. J., p. 127. Vide also Moss and Douglas et al., Q. B., 10 L. C. JR., p. 248.* 18. But in the case of Fenn vs. Bowker, S. C, 7 L. C. J., p. 28, it was held, that a party in a cause who has been ordered to answer interrogatories, sur fiits et articles, vivd voce, under 20 Vic, c. 44, sec. 86, may read his answers from a paper previously prepared. 19. A party who has been examined on faits et articles may be afterwards examined as a witness. Bailey vs. Mc- Renzie et al., S. C, 5 L. C. J., p. 223. As to sufficiency of answer,— Q. B., 12 L. C. R., p. 467. " : — Vide Leblanc and Dehecchio, 12 L. C. R., p. 467. False Imprisonment: — Vide Damages. False Pretences :— Two shareholders of a joint stock company paid a protested draft of the Company for $g00, and agreed to pretend to the stockholders that they had been obliged to discount a note for $250 to pay it, by which they obtained $250 from the Company, hi reality they had not discounted any such note but had themselves furnished the money. It was held that these misstatements were not sufficient to maintain an indictment for obtaining money under false pretences, and that persons could not commit a larceny of the moneys of the Company of which they were shareholders. The Queen vs. St. Louis et al., Q. B., 10 L. C. R., p. 34. Faux : — Vide Inscription de faux. Fees : — 1. No fee of office can be exacted by a public officer unless established by legislative enactment, or by ancient usage which presupposes the -sanction of the legislative authority. Price vs. Perceval, S. R., p. 189. * In this case it is difficult, from the report, to say if anything, and what, was decided. 9 130 FEE Fees : — 2. _j4.11 fees of offi»e, properly so called, are presumed to have a legitimate foundation in some act of a competent authority, originally assigning a fair quantum meruit for the particular service. The John and Mary, p. 64, S. V. A. R. Where the fee is established by or under the authority of an Act of Parliament, the statute is conclusive as to the quantum meruit, lb. Where settled by the authority of the Court, the subject is not concluded thereby, but one may try the reasonableness of the sum claimed as a quantum meruit before a Court of com- petent jurisdiction and obtain the verdict of a jury thereon, when, and when alone they become established fees. lb. Since the passing of the Act of the Imperial Parliament, 1 Will. 4, c. 51, the establishment of fees in the Vice- Admiralty Court is exclusively in the King in Council; and the table of fees«stablished under the statute having been revoked without making another, it is not competent to the Court to award a quantum meruit to its officers, lb. 3. By the ancient law of England, none, having any office concerning the administration of justice, shall take any fee or reward of any subject for the doing of his office. The London, p. 140, S.V. A. R. All new offices erected with new fees, or old offices with new fees, are within the Stat. 34 Edw. I., for that is a tal- lage upon the subject which cannot be done without common assent l>y an Act of Parliament, lb. Officers concerned in the administration of justice cannot take any more for doing their offiee than has been allowed to them by Act of Parliament, lb. Or by immemorial usage, referred to by Lord Coke, in this instance, as in so many others, considered as evidence of a Statute or other legal beginning of the fee. lb. These principles have at all times been recognized as fundamental principles of the law and constitution of Eng- land, lb. The Order in Council of the 20th of November, 1835, passed to repeal the table of fees established under the authority of the 2 Will. IV., c. 51 :— 1st. Had the effect of repealingHhe same ; 2nd. Did not give force or validity to the table of fees of 1809 ; 3rdly. Nor did it authorize the Judge to grant fees as a quantum meruit, lb. 4. The action for money had and received will lie for exorbitant fees paid to custom house officers, and the action may be brought in the name of the owner, although the money may have been paid by the master, lb. 5. The Imperial Statute, 5 Geo. III., c. 45, enacts : that x when no fees have been established in a colony of Great Britain, the custom house officers there shall be entitled to receive such fees as were received by the like officers in the nearest port in any British colony, before the29th September, 1764, and it was held that the Court will take notice of the relative geographical position of countries to ascertain that port. lb. 6. All fees to be taxed in cases instituted previously to the promulgation of the new tariff, are goverued by the provi» FEE to FEE 131 Pees : — sious of the old tariff. Cherrier and Tittis, Q. B., 1 L. C. R., p. 402 ; also Tunstall vs. Robertson, S. C, 1 L. C. R., p. 476. And the date of filing an opposition in the Sheriff's office governs the costs ; and when the filing was before the coming into force of the new tariff, though the return was afterwards, the costs are taxable under the old tariff. Delery vs. Quig and de Beavjeu &[ al., S. C, 1 L. C. R., p. 493. 7. The 100th section of the 12 Vic.,c. 38 [Con. St. L. C, cap. 83, sec. 148], which empowers the judges of the Supe- rior Court to make a tariff for the advocates and officers of justice, speaks only of uniformity in the practice and pro- ceedings and not in the fees of office. And the uniformity spoken of in the preamble to the section in question, directs a general and not such an absolute uniformity to be main- tained, that the slightest variance would produce a nullity in the whole. The tariffs relating to the fees of the several officers of justice maybe promulgated in different documents, and the order containing the tariffs of the Prothonotaries (complete and distinct by itself), valid or invalid, could not affect the tariffs of the sheriffs, bailiffs and other officers. Chabot &f al. vs. Sewe'l, S. C, 1 L. C. R., p. 436. And this case going to appeal, it was held in the Queen's Bench, that a practising attorney cannot recover back from a sheriff a fee of office received under and by virtue of a tariffof fees promulgated by six of the judges of the Superior Court, in obedience to the 100th section erf the lith Vic, c. 38 [Con. St. L. C, cap. 83, sec. 148], and that the receipt of such fee in the present case was perfectly justifiable. Q. B., 1 L. C. R., p. 466. 8. Fees of office and taxes payable to the Clerk of Appeals, Queen's Bench, belong to and form part of the revenue of the Crown, and the action for the recovery thereof is vested in the Clerk of Appeals, who is only the agent for their col- lection. Regina vs. Holt 8f al., S- C, 13 L.C. B., p. 306. " : — Vide Judge. " : — " Registers. Felony :— An action under 10 & 11 Vic.,*. 6 [Con. St. C, cap. 78], disclosing circumstances- amounting to a felony, may be instituted, although no indictment has preceded. ClurkeSj-al. vs. WilsoK, S. C", L, R., [). 22. And so also in an action for assault and battery, even when ihe assault charged would amount to a felony, the action will be maintained, although then no criminal proceedings have been instituted. Lumothe and Chevalier Sf al., Q. B., 4 L. C. E., p. 160. Ferry : — A conveying or crossing of persons, &c. over a river, within the limits of another's ■exclusive right of firryage and Irans^ pirt, although done gratuitously, if it ultimately produces gain to the person working tlu unauthorized ferry or cros-sing, is a crossing for hire aud gain within ihe meaning of the Statute, and an infringement of the excliiMVc rights created thereunder. Leprohon is. Glubemky, is. C, 3 L. C. J., p. 310 ; also L. R., p. 90. Confirmed in appeal, Globensky $f u%. if Lukiii, Q. B., 6 L. C. J., p. 145. « : — Tide Partnership. 9* 132 FID to FOL Fidejussor : — Aftdejusseur has his action against a co-fdejusseur for his proportion of the sum which he has paid for their common principal; but if there be no convention to the contrary in the deed by which he became security, his action is only for money paid, and consequently he can have no mortgage upon the property of his co-fdejusseur until he has obtained a judgment, and then only from the date of that judgment. Jones vs. Laing, S. R., p. 125. Fieri Facias : — Vide Sheriff. Figures : — Vide Assignment. ■ " Bailiff. • " Capias. ■ " Pleading & Practice — Declaration. Filing of Titles with Opposition : — Vide Opposition. Fire Debentures: — Vide Hypotheque. Fire Insurance : — Vide Insurance. Fisc : — A claim of the Crown founded on a fiscal right is privileged over proceeds of sale of the moveables of an insolvent debtor. Benjamin vs. Brewster and the Attorney General, pro Regina, S. C, 7 L. C. J., p. 281. Floating Lights : — In a case of collision against a ship for running foul of a floating light vessel, the Court pronounced for damages. The Miramichi, p. 237, S. V. A. R. Flogging : — By an Act of Congress, passed 28th September, 1§50, flogging in the navy ot the United States of America and on board vessels of commerce was abolished from and after the passing of that act. p. 390, S. V. A. R. — (note.) Folle Ench£re : — 1. Any opposing creditor may move for folle en- chere against an adjudicataire who has neglected to pay his purchase money. Guenette vs. Blanchette, S. C, 2 L. C. R., p. 64. But it was held in Quebec that an opposant should not be permitted to move for a. folle enchere until the creditor has had time so to do. 2. The husband of 'a married woman separpe de Mens adjudicataire, should have notice of motion for folle enchere against his wife. Clouthier vs. Clouihier, S. C, 10 L. C. R., p. 457. And so also in Queen's Bench, in the case ot Jordan' and Ladriire, 12 L. C. R., p. 33. And where the rule has been served on the wife alone the judgment declaring it absolute will be set aside.- Jarry Sf vir. and The Trust and Loan Company of Upper Canada, Q. B., 12 L. C. R., p. 421. 3. And no motion for an order to re-sell real estate at the folle encMre of the adjudicataire can be granted, unless notice thereof has been given to the adjudicataire. Baker vs. Young Sf al., and divers opposants, P. R., p. 22. And the notice of motion must be served personally on the adjudicataire. Jobin vs. Hamel and Harriet, S. C, 12 L. C. R., p. 176. 4. But a rule for a folle enchire against an adjudicataire, described in Sheriff's return as residing in Upper Canada, may be declared absolute, on the single return of a bailiff,' ihat the adjudicataire has no domicile in Lower Canada and that he cannot be found in the district of Montreal. Guy vs. Clarksan and McLean, S. C, 1 L. C. J., p. 193. But a rule for folle enchire against adjudicataires, who, on the face of the proceedings, are non-residents in Lower Canada, but F O L to FOE 133 Folle Enchere : — have paid the capital of their purchase, founded on a claim for interest on such capital, and served on "the agent and attorney at law" of the adjudicataires, will not be main- tained. Hall vs. Douglas and McDougall &■ al., S. C, 2 L. C. J., p. 276. 5. After the folle enchire has been ordered against a pur- chaser (adjudicataire') he may annul that proceeding by pay- ing his purchase money, and the costs incurred on the folle enchire. Langevin vs. €kuron, S. C, 2 L. C. R., p. 125. And. a similar decision was given in the case oiNye vs. Potter a?id Brown, 5 L. C. J., p. 23. 6. The Court will not order the re-sale of an immoveable property at the folle enchire of the adjudicataire,]}enAiag the proceedings on an intervention by a third party to have the adjudication declared null and void ; nor will it allow a contrainle par corps to issue against the adjudicataire for the non-payment of the purchase money, pending such proceed- ings. Meath 8f-al. vs. Fitzgerald, Monaghan and Charlton, S. a, 1 L. C. it., p. 241. 7. The adjudicataire is only liable par corps on a re-sale at folle enchire, for the difference of price, and not for the •costs of the re-sale. The Trust and Loan Company vs. Doyle if al. and Stanley, 3 L. C. J., p. 302. 8. A folle ench're cannot be ordered on terms or conditions different from those of the- original sale and adjudication. Evans and Nicholls Sf al., Q. B., 1 L. C. R., p. 151. 9. A rule nisi for folle enchire must contain a description of the lands asked to be resold. Dickinson vs. Bourque and Blnchard, S- C, 4 L. C. J., p. 119. And so aiso it was held in Aye vs. Potter and Brown, 5 L. C. J., p. 23. JO. A sale by folle enchire will be ordered at the instance of the plaintiff against an adjudicataire of a steamer, duly registered according to law, who* shall not have paid the price of his adjudication. Laioie vs. Plante, S. C, 12 L. C. R., p. 207. 11. A rule for folle enchire may be granted notwithstand- ing the death of the creditor suing out the decret. Russell vs. Fournier Sf al., and McBam, S. C, 7 L. C. J., p. 299. " : — Vide Auction. • Forcible Entry : — Vide Indictment. Foreclosure: — Vide Pleading and Practice. Foreign Judgment : — 1. A plea by which it is alleged that a suit has already been brought and decided in a competent foreign tribunal, by the same plaintiff against the same defendant, for the same cause of action, is a good plea, more especially if it sets up payment of the judgment by defendant Vaughan vs. Campbell, S. C, 5 L. C. R., p. 431. 2 Letters of administration from a Court of Probate in Michigan, as well from the terms thereof, as from the prin- ciple of international law-j do not extend beyond the limits of the stiite wherein the administration was granted. COti Sf al. and Morrison, Q. B., 9 L. C. R., p. 424. Foreign Law: — 1. The law of the country in which a contract is made and its usages govern in mercantile cases. Allen vs. Scaife Sf al., S. R., p. 105. 134 FOR to FRA Foreign Law : — 2. If there be no eyidence of Foreign Law, it will be held to be the sime as ours. Parker vs. Cochrane, S. C, L. R., p. 53. Anil so also it was held in Brodie Sf ux. vs. Gowan, S. C, 7 L. C. J., p. 96. Foreign Ships : — Ancient jurisdiction of the Admiralty restored by 3 & 4 Vic. c. 65, s. 6, with respeot to claims of material men for necessaries furnished to foreign ships. The Mary Jane, p. 271, S. V. A. R. Forfeiture : — Forfeiture for not entering or reporting goods, may be incurred, even without such goods having been landed. Lcggett, qui tam. v. 4 gold watches, and Garrett, 3 Rev. de Leg., p. 252. " : — Vide Registers. Forfeiture and Penalties: — Jurisdiction in the case of forfeiture! and penalties incurred by a breach of any Act of the Impe- rial Parliament, relating to the trade and revenues of the British possessions abroad. Jurisdiction in the case of forfeitures and penalties incur- red by a breach of any Act of the Provincial Parliament, relating to the customs as to trade or navigation. Under the Act regulating the trade of the British posses- sions abroad, no suit for the recovery of any penalty or for- feiture to be commenced, except in the n»me of some supe- rior Officer of the Customs or Navy, or by His Majesty's Advocate or Attorney General for the place where such suit shall be commenced. The Dumfriesshire, p; 245, S. V. A. R. " : — Vide Vice Admiralty Court. Forma Pauperis :— Vide Fraud. " : — " Pleading and Practice. " : — -" Security. Franc et Quitte : — 1. The clause of franc et quitte will not dis- charge the purchaser from paying so much of the purchase money as may be in excess of an undeclared hyputheque. Paquet Sf at. vs. Miclette, S. C, 4 L. C. J., p. 3 10. 2. When the purchaser is in danger of being troubled, by reason of mortgages, in the possession ol a property sold franc et quitte, he may retain the payment of the purchase money, uutil such mortgages are removed by the vendor or unless security be given by the latter, according to the pro- visions of Ch. 36, Con. Sts. L. C, sec. 31. And the vendor in such cases is condemned in costs. lb. And no execution shall issue until either the mortgages are paid or until good security is given, lb. Also Perras vs. Beaudin, S. C, 6 L. C. J., p. 241, and Bruneau vs. Robert, S. C, 6 L. C. J., p. 247; and Bernesse dit Blondinvs. Madon, S. C, 7 L. C. J., p. 32. Fraud : — Where parties have entered into an agreement with a view to defraud third persons, the agreement will neverthe- less be valid and binding as between the parties thereto. Shaw and Jefry, P. C, 10 L. C. R., p. 340 ; 13 Moore's Rep., p. 432. -Vide Assignment. - " Donation. - " Promissory Note, FEE to GAR 135 Free and Common Soccage:— Fiefe Douaire. " " :— " Lands. " : — " Petitory Action. " : — " Separation de corps etdebiens. Freight: — Darling purchased a quantily of bar iron from Wilson's trustees in Glasgow, a part ol the iron was shipped on board of the California, of which the appelant was master, the bill of lading was in the name of respondent, the agent of Wilson's trustees in Montreal. Upon the arrival of the iron at the latter place, the respondent referred the appellant, and Burns the consignee of the ship, to Darling as the owner of the iron. Darling being in possession of a duplicate bill of lading received the iron from the appellant, who delivered it notwithstanding that the respondent had not endorsed the bill of lading. It was held in the Queen's Bench, confirming the judgment of the Superior Court, that though the respondent had not endorsed the bill of lading to Darling, he, the respondent, was not liable for the freight of the iron. Fowler em.d Meikleham, Q. B., 7 L. C. R., p. 367. - " :— Vide Carrier. Fugitives : — The Executive Government may deliver up to a Foreign State, for trial, any fugitive from justice, charged with huving committed any crime within its jurisdiction. Re Joseph Fisher, S. R., p. 245. Gagerie:— Vide Loter. Gages : — Vide Prescription. Gambling : — That a bargain and sale of goods in January for delivery in the course of May following is not a gambling transaction. Baldwin vs. Binmore, S. C, 6 L. C. J., p. 297. Game Laws : — The husband, though absent, is liable for the penalty under the act on the ground that his wife acting as his agent in the ordinary course of his business, must be presumed to have had his authority for the illegal act complained of. Campbell, complainant, and O' Donahue, defendant, S. C, 5 L. C. J., p. 104. Garantie : — Vide Action en Garantie. " : — * Registrar. " : — " Warranty. er annum," does not constitute a hiring for one year ; and such contract is determinable at the option of either party. Lennan vs. The St. Laiorence and Atlantic Railroad Company, S. C, 4 L. C. R., p. 91. Honneurs dans l'Eglise : — The captain of militia has a right to> the presentation of the pain beni immediately after the seignior ; but he should occupy the pew set apart for his HON to HYP 139 HONNEURS DANS l'EglISE : — office, if there be one, otherwise he will be offered the pain beni in his turn with the other parishioners. Augi vs. JLe Cure de la Pointe aux Trembles, 2 Rev. de Leg., p. 63. Hotellier :— 1. An innkeeper has no claim on a piano brought into his hotel to be used at a concert there given, fur the charge for the use of the room. Brown vs. Hogan et at., S. C, L. R., p. S3, and 4 L. C. R., p. 414. And also in another case of Nordheimer et al., vs. Hogan et al., S. C, 2 L. C. J.> p. 281. 2. A hotel-keeper has no lien on the effects of a monthly boarder ; such privilege only exists over the effects of a travel- ler. Bleau vs. Belireau, S. C, 4 L. C. J., p. 356. And so> also in Cooper vs. Bovmes, S. C, 13 L. C. R., p. 358. Where it was held that pelerins, within the meaning of the 175 art. of the Custom, were only those who lived at hotels from day to day. And also in the case of Verlois vs. Saucier, S. C, 7 L. C. J., p. 126, where it was held that a party staying in a hotel for three weeks was not a peleiin, and a revendication will lie at his suit to recover his clothes detained by the hStellier. 3. An inn-keeper is responsible in damages occasioned by the tail and mane of a horse having been shorn in his stables. In the absence of evidence to the contrary, it will be presumed that it was done by his servants or through their negligence. Duroeher vs. Meunier, S. C, 9 L. C R., p. 8. 4. A hotel-keeper has an action for drink sold to travellers who are residing in his hotel. Mereier is. Brillon, S. C> 5 L. C. J., p. 337. Husband and Wife. " : — Game Laws : — Vide Pleading. Hypothecary Action: — 1. One and the same hypothecary action cannot be brought against three proprietors of a land hypo- thecated, unless they be proprietors par indivis. Panet et al., vs. Lorin et al., 1 Rev. de Leg., p. 232. 2. An hypothecary adion joined to a personal one, is prescribed by the lapse of 30 years. Delard vs. Pare et ux., H. C, 1 L. C. J., p. 271. 3. In an hypothecary action it is the circuit within which the detenteur holds possession, not the circuit where the original contract stipulating the hypotheque is made, that is the place where cause of action arose. Morkill vs. Cavenagh, S. C, 4 L. C. J., p. 7. " : — Vide Declaration. " : — " Douaire. Hypothecary claims : — Vide Pleading and Practice. Hypothecary debts: — Vide Imputation. HypothSque : — 1. An hypothec is indivisible in so far as regards the immoveable property hypothecated. McCarthy vs. Senecal, S. C, 11 L. C. R., p. 41. 2. A'notarial deed executed en brevet gives no hypotheque. Belair vs. Gaudreau et vx., P. R., p. 57- 3. A fidfjusseur has no hypotheque upon the property of his co-fidejusseur for his share of the security which he may 140 HYP HypothSque : — have paid, until he gets judgment, and then only from the date of judgment. Jones vs. Laing, S. ft., p. 125. 4. A general hypothique will not attach to lands held in free and common soc%ige. Paterson et al., vs. McCattum ■et al., S. E., p. 429, and Boston is. Classon, 2 L. C. E., p. 449. 5. General hypothecs created anterior to the passing of the registry ordinance, 4 Vic. c. 30, attach to property pur- chased subsequently to Ihe passing of the said ordinance. Brown and Oakman et al., Q. B., 13' L. C. E., p. 342. 6. The claim of a legacy by privilege of hypothique by an ante-nuptial contract, against a fund in the hands of the sheriff, the produce of a sale under execution of real estate, belonging to the husband, who was the sole executor and residuary legatee of his deceased wife, will be dismissed ; it not appearing that the fund was the property included in the marriage contract, or that the legatee had any right of priority to a judgment creditor. Smith and Brown, P. C, 2 Moore's Eep., p. 35. 7. An hypothique accorded during insolvency, confers no privilege as against contemporaneous chirographary cre- ditors. Duncan vs. Wilson, and Wilton and Wood, oppo- sants, S. C, 2 L. C. J., p. 253. And registration during a saisie reelle confers no right of hypothique to the prejudice of other creditors, who have not registered their claims. Gale vs. Griffin, and Gale and Sewell, opposants, Q. B., 1 L. C. J., p. 266. 8. A servitude urbrine is not susceptible of hypothecation. Duchesnay et al., vs. Bedatd and Boisseau, S. C, 1 L. C. E., p. 43. 9. The hypothecation of a lot of land described by its metes and boundaries, is an hypothecation of u thing certain, although the contents be less than those contained in the said lot ; and in this case the hypoth'que covers the entire 'lot. Labadie and Trut.eau, Q. B., 3 L. C. E., p. 155. 10. The appellants acquired real property, on which was built the Baptist College at Montreal from one Gerard, by deed of sale, dated the 18th March, 1842 ; part of the price remained as a rente constituee on the property, and £2,500 also remained at interest for the lifetime of one Forsyth and M. C. Gerard, his wife, the principal to be payable after their death, to certain persons appointed to receive the same. Afterwards, on the 25th July, 1845, the appellants, by deed not registered, reciting that they had purchased merely and solely in trust for the Canada Baptist Missionary Society, until it should become incorporated, (as it was by the 8 Vic. c. 102,) assigned the property to the society, in consideration that they should be exonerated and discharged from all claims, troubles and demands whatsoever, by Gerarid, under the said deed of sale, and further in considera- tion of 10s. ; but there was no special covenant of guarantee, nor any precise sums of money stated as remaining due to Gerard. The society afterwards specially hypothecated the property to Hoby, and Salter and to Forsyth, by deeds bear- ing date the 28th October, 1845, and 18lh December, 1848, HYP 1 41 HypothEque : — : i duly registered ; and the property being sold by decret by the sheriff, Gerard forbore from making any claim upon the proceeds, under his deed of sale, and the respondent as assignee of lloby, Salter and Forsyth, claimed to be collo- cated. The appellants resisted this claim, unless security were given to refund, if the balance of the price were. here-_ after claimed from them. It was held, that the appellants were entitled to such security, notwithstanding the 10th and 28th sections of the Registry Ordinance, and notwith- standing that the deed of the 25th July, 1845, contained no special hypothique ^in their favor, and was not registered. Try et al., and the Corporation of the Roman Catholic Bishop of Montreal, Q. B., 4 L. C. R., p. 276. 11. A special hypothique is no bar to the exception of discussion, and the tiers ditenteur of land, who has been sued by the original vendor, may validly plead that exception. The tiers ditenteur has no right to hold the property until his improvements have been paid. Price vs. Nelson, S. C, 2. L. C. R., p. 455. 12. The registration of an hypothique is not necessary as against chirography claims. Duncan vs. Wilson and Wilson and Wood, S. C, 2 L. C. J., p. 253. And between two hypothecary creditors, whose titles (neither of which were registered) were subsequent to the passing of the Registry Ordinance, the one or earliest date will be preferred. Methot et al., vs. Sylvain and Gibb et al., 2 Rev. de L6g., p. 210. 13. The bailleur dp fonds, who has neglected to registers deed of sale anterior to the passing of tho Registry Ordin- ance, 4 Vic. c. 30, on or before the 1st November, 1844, the period limited for the registration of old deeds (7 Vic. c. 22, s. 1-,) [Con. St. L. C. cup. 37, sec. 3,] cannot claim, to the prejudice of a subsequent hypothecary creditor, whose title has been duly registered before bis. Dionnevs. Soiicy, S. C, 1 L. C. R., p. 3 ; also Poliquin vs. Belleau and Fisetie 4* al., S. C.,7 L. C.R., p. 468; also Vondenielden and Hart, Q. B., 2 L. C. R., p. 3r>3. And in rendering judgment in this case Sir James Stuart, C. J., intimated his opinion that the bai/leur de fonds, either prior or anterior to the Ordinance of the 4 Vic. c. 30, is bound to enregister his title. But this opinion was not then generally acquiesced in. Patlon and Buchana?i, 3 Rev. de Leg.,' p. 56. And it prevailed in so far as regards the titles of bailteurs de fonds passed subse- quently to the Ordinance of the 4th Vic. Shaw vs. Lefurgy, S. C, 1 L. C. R., p. 5 ; Wilson and Atkinson, S. C, '2 L. C. R., p. 5; Latham vs. Kerrigan and Homerick, S. C, 1 L. C. R., p. 489. Nor for deeds passed prior to the 7 Vic. c. 22, is it necessary to file a memorial fbr arrears of interest, lb. And also in the case Bouchard and Blais, Q. B., 4 L. C. R., p. 371, and in this case, in the Q. B., this was declared to have been the jurisprudence.* # But since the passing of the 16 Viu. o. 206, [Coil. St. L. C. cap. 37,si-ct. 9,] ibv/iailleur defends, who does not enregister within thirty days, will lose his privi.ege if any hypothe- cary creditor registers belore hiui. 142 HYP Hypoth£que : — -' f I 14. In the case of Brown vs. Clirk and Montizambert, S. C, 10 L. C. R., p. 379, it was held that prior to the 4 Vic. c. 30, the arrears of interest upon the price of immoveable pro- perty sold, were only, liable to a prescription of thirty years and not of five years. That in a distribution of moneys levied by the sale of real estate, the vendor ,bailleurdefonds, whose claim is founded on a deed passed before the coming into operation of the 4 Vic. c. 30, is entitled to rank for all the arrears of interest due with the principal, although no memorial of such interest was ever registered. That the 7 Vic. c. 22, cannot be construed so as to have a retroactive •effect, aod that consequently, it does not apply to constituted rents, created before it came into force. 15. And a contract of marriage executed before the enact- ment of the 4 Vic. c. 30, must have been enregistered in the delay fixed by the Ordinance, to preserve the rank of the mortgage created by it. Garneauvs. Fortin, S. C, 2 L. C. R., p. 115. And also a marriage contract establishing a life rent to a wife. Panet vs. Larue, S. C, 2 L. C. R., p. 83. And in the case of Forbes vs. LegauU, S. C, 6 L. C. R., p. 100, it was held, that a purchaser in good faith for valuable consideration, under a deed of sale, prior to the registry ordinance, and registered previous to the 1st Novem- ber, 1844, is not liable hypothecarily for a douaire prefix, under a marriage contract passed before notaries in 18 17. and not registered till the 14th February, 1853, notwithstanding ' that the death of the husband only took place in 1852. But it is not necessary that a marriage contract containing the stipulation of a customary dower, should be registered to confer upon the person claiming such dower, a right of preference to posterior creditors who have registered their claims. Sims et al., vs. Erans and divers, S. C, 10 L. C.R., p. 301, and 4 L. C. J., p. 311. And previous knowledge, in a subsequent creditor, of the existence of a previous debt, not registered, due by his debtor is not sufficient to put him in bud faith and to deprive him of the advantage by him acquired by registration of his claims, unless he be guilty of fraud or collusion. Ross' vs. Dcdy, S. C, 3 L. C. R., p. 136. The words "subsequent bond 1 ' fide purchaser" employed in the 4th section of the Registry Ordinance refer to the words " from and after the lapse of the said period." Lauzonifal., vs. Bilanger, 1 Rev. de Leg., p. 146. But a married woman can claim the value of an immoveable property snld upon the representatives of her husband, such property having been given to her during the community, notwithstanding the clause of ameublissement it) the contract of marriage, provided there be astipulation in the contract of marriage that the wife may renounce, to the community, and take back whatever she brought to it, although the marriage executed previously to the 4th Vic. was never registered, — the wife's claim being rather in the nature of a right, of properly than of an hypothecary claim. Lahreque vs. Boucher, Fleurv and Marcoux, 6. C, I L. C. R., p. 4~. And in the case of Nudeau and Dumon, Q. B., 2 L. C. R., p. 196, it was held that it is not necessary to register contracts of marriage to HYP 143 HtpothSque : — * preserve rights of ownership, thereby secured, and that children representing their mother, may claim, by right of community, the value of one hall of an immoveable property, propre ameubli, which they then allowed to be sold 16. But an heir claiming his share of the immoveable pro-' perty of a community in the estate of hi.s mother, will lose his rank of hypotheque upon the real estate of his father, appointed his tutor, if he has not caused .the registration ofthe marriage contract, the act of tutorship, or the deed of parti- tion. Girard vs. Blais, S. C, 2 L. C. R., p. 87. 17. But a married woman whose marriage contract is anterior to the Registry Ordinance does not Jose the rank of her hypotheque, although not enregistered before the 1st" November, 18+4. Ex parte Gibb and Sheppard S,- ux., 3 Rev. de Leg., p. 478. 1*. A clause in a contract by which intended husband gives to intended wife a sum of money to be enjoyed during her natural life, and then to go to her children, creates a mortgage upon the property ofthe husband which gives to the children a preference over subsequent creditors, notwithstanding-the clause that the grant was made on condition thut the husband should have the right to alienate, &c, without interruption from his wife, and property upon which she might have mortgage by reason of said clause. Brown vs. Oakman 8f al., Q. B., 13 L. C. R., p. 342. 19. The general hypothec acquired previous to the coming into force ofthe Registry Ordinance, 4 Vic. c. 30, and enre- gistered before the deed of the tiers detenteur is sufficient to preserve the hypothec of the hypothecary creditor. Mogi vs. Dupre, C. C, 3 L. C. R., p. 138. And such hypothec attaches to property purchased subsequently to passing of said Ordinance. Brown and Oakman $• al., Q. B., 13 L. C. R., p. 3+2. 20. The party who wishes to acquire an hypothec, should specify in the deed the amount with which the immoveable is charged. Ex parte Cazelais and Rams y, opposant, S. C, L. R., p. 34 ; also Ex parte Casavant. and Lemieux, opposant, S. C, 2 L. C. J., p. 139. But vide supra Mo. 10. 21. But the general registration of a deed, ^bearing date previous to the enacting of the 4th Vic. c. 30, without a memorial or claim for any specific sum fbr arrears of life rent, or arrears of interest which may be due upon such deed, is sufficient to preserve the rights of the creditor for the whole amount of such arrears, and it is not necessary that any memorial for such arrears should have been regis- tered. Pelletier vs. Michavd and divers opposants, S. C., 1 L. C. R., p. 165 ; also McLaughlin fyal. vs. Bradbury fy- al., 3 Rev. de Leg., p. 340. And so also for interest accrued subsequently. Regina vs. Petit.clerc, and Derousselle and Wood Sf al., S. C, 1 L. C. R., p. 284. 22. The registration of an ordinary conventional hypothec, bearing date subsequently to the coming into free of the Registry Ordinance, is only effectual for two years and the jjurrent year, as regards interest against a subsequent hypo- 144 HYP HfPOTHfcQ E : thee duly registered, but is of no effect as to costs to recover the amount. Mnrin vs. Daly, S. C, 6 L. C. R., p. 48. * 23. But since the passing of the 16 Vic. c. 206, s. 7, [C. Sts. L. C, cap. 37, sect. 45,] an hypothec may subsist for a life rent created by a deed of gift inter tiros, without mention of a specific amount. Chapais vs. Lebel, S. C, 3 L. C. R., p. 477. But not so for a life-rent created by testament, in which case the immoveable charged must be designated and specially affected" by the testament, for a sum of money, in conformity with clause 28 of the Ord., 4 Vic. c. 30, [C. Sts. L. C, c. 37, sect. 45.1 Gregoire vs. Laferriere, S. C, 3L. C. J., p. 184. 24. But registration by memorial of an hypothecary claim, founded upon a deed of donation, which does not state the amount of the claim, is inoperative against a subsequent bonQ, fide purchaser who has duly registered his deed of acquisition. Such a memorial should contain the allegations necessary to disclose all the rights sought to be preserved by means thereof. Fraser et ux. vs. Poulin, S. C, 8 L. C. R., p. 349. 25. The revocation of a donation onereuse does not affect the hypotheques created by the donee during the existence of the doiiMtion. Lafleur and Girard, S. C, 2 L. C. J., p. 90. 26. Under the 4th Vic. c. 30, all wills made and published previously to ihe 31st December, 1841, must be registered to enable legatees to rank according to date of hypothec. Duchesnay vs. Bedard, and Campbell and Bedard, S. C, 1 L. C. R., p. 435. 27. Hypothecation is only created on the real estate of an execulor from the time of his acceptance, by authentic acte of the executorship. And his acceptance must be enregis- tered to enable a party claiming under the will, to rank by privilege on the estate of the executor over an ordinary mortgage creditor, whose claim has been duly registered. David vs. Hays, S. C, 3 L. C. R., p. 440. And also Lamothe vs. Hutchins, ti. C, 9 L. C. R., p. 7. And in Lainothe vs. Ross and Ross et. al., opposants, and The Trust, and Loan Company of Upper Canada, S. C, 2 L. C. J ., p. 278, it was held, that an hypothec does not attach to the property of an executor, by reason of the registration of the will undtr which he is appointed. * 28. The hypotMque legale is not exempt from registration under the 4th section of the Registry Ordinance, [C. Sts. L. C, c. 37, sect. 3.] The Queen vs. Comte et al., Q. B'., 2 L/C. J., p. 86. # See Vbo. Cosis. Previously to this decision a different ruling, more in accordance with principle, had been come hi. For the taller decision, however, a verbid defence hased on theStaiute may be offered. But ihe rule should not lie fbrsoilen ihat the accessory follows Ihe principal, and that as the vi sis ol recovery of a debt, ate an undoubted accessory of the debt, the Statute llieiefore is complete in this respect. EIsr how eonld interest have been given ? Its amount could not be a sum of money " specially mentioned." It is in vain to argue that it is in virtue of the Itilh section of the Ordinance, for the ol ject ofth.it section is to restrain the right lo interest lo two years, not to create it. Had ihere been no such clause it would noi have been pretended thatlhe creditor had no right lo interest, because its gumdum had not been "specially mentioned." Such an interpretation would amount to a declara- tion that under Ihe Ordinance Ihere toll'd be no complete and valid hypothec. hyp 145 Htpoth£q,ue : — 29. The hypothecary creditor may effectually register his title, after the property hypothecated in his favor, has passed into the hands of a subsequent purchaser, who has not registered, and such registration will operate against such subsequent purchaser and his hypothecary creditors. Pouliot vs. Lavergne, Lacorse and Roy, S, C, 1 L. C. R., p. 20. 30. An hypothec duly created during the lifetime of a debtor may be preserved by registration after his death. The Queen and Comte et al., Q. B., 2 L. C. J., p. 86. 31. A reference in a deed which has been registered, to a previous deed not registered, is not equivalent or sufficient to defeat the claim of a subsequent hypothecary creditor, whose claim has been registered. Delesderniers vs. Kingsley, S. C, 3 L. C. R., p. 84. And the registration of the transfer of a deed, passed prior to the carrying into force of the Registry Ordinance before the 1st of November, 1844, is not sufficient to preserve the rank of hypothique of the said deed. Wurtele et al., vs. Montminy and Girard and Paquet, oppo- sants, 1 Rev. de Leg. p. 231. 32. The loss of a title by a vis major is no answer to a third party, alleging the non-registration of such title, and registration by memorial only preserves the rights set forth in such memorial. The registration of a titre nouvel cannot prejudice a third party who has already registered his title. Carrier vs. Angers, S. C, 3 L. C. R., p. 42. 33. A copy delivered by a registrar of a deed of sale of a real estate deposited in his office for registration is no evidence of such sale. Nye and Colville et al., Q. B., 3 L. C. R., p. 97. Nor the copy from the books of the registrar of a deed registered at length. Vbo. Evidence. 34. The 6 Vic. c. 15, s. 2, [C. St. L. C, cap. 37, sect. 8,] which exempts Seignorial rights from registration, does not apply to interest accrued thereon by virtue of a special sub- sequent agreement. Ex parte Mailloux, S, C, 3 L. C. R., p. 192. Also Moge vs. Lapre and Massue and Morrison opposants S. C.,-1 L. C. J., p. 255. 35. The bailleur de fonds who has not registered his deed before the 1st November 1844, may wage his hypothecary action against the legataire universel of the acquereur, he not being a tiers detenteur, in the sense of The 4th Section of the Registry Ordinance, [C. St. L. C, c. 37, sect. 3.] Larive vs. Fontaine, 3 Rev. de Leg. p. 33. 36. Under the provisions of the 4 Vic. c. 30, he who has first enregistered his claim will be preferred to the other, both being registered subsequently to the 1st November 1844. Normand and Crevier et al., Q. B., 10 L. C. R.,p. 42. 37. If two acts be enregistered at the same moment, it is not the number endorsed by the registrar that will fix the priority of the mortgage-but the dates of the deeds. Grenier vs. Chauniont, S. C, 5LC. J., p. 78. 38. When the certificates of a registrar show two deeds to have been registered on the same day and at the same hour, and he gives, precedence in number to one, the claims upon both deeds must, under the 4 Vic. c. 30, sect. 11, [C. 10 146 HYP HypothJique : — St. L. C, cap. 37, sect. 14,] be collocated concurrently in a report of distribution. Lenfesty vs. Renaud and divers opposants, S. C, 9 L. C. R., p. 298. 39. Under the 4th Section of the 4 Vic. c. 30, [U. St. L. C. cap. 37, sect. 3, sub-sect. 2,] the defendants, donataires of the land sought by the action to be declared hypothecated, are not purchasers or grantees for or upon valuable consider- ation, so as to enable them to invoke, as against the plaintiff, the non-registration of his litre de creance ; or the registra- tion of the judgment founded thereon subsequent to the insinuation of the donation. Holmes vs. Cartier et al., S. C, 5 L. C. R., p. 296. 40. It is not necessary to register old titles to property. Murphy vs. Donavan, S. C, 2 L. C. R., p. 333. But original grants and letters patent, creating a general hypothec, and made and issued before the 4th Vic, are subject to registra- tion in order to preserve the general hypothec. The Sollicilor General, pro. Regina and the People's Building Society, Q. B., 1 L. C. J., p. 55. 41. Hypothecs resulting from deeds of lease need not be registered, according to the terms of the 17th Section of the Registry Ordinance. But upon the proceeds of a Bail Emphytiotique the lessor can not claim arrears due in virtue of such lease, to the prejudice of a creditor of the lessee who has duly registered before him. Tetu vs. Martin, S. C, 7 L. C. R., p. 42. 42. An ordinary lease not registered does not produce a general mortgage, notwithstanding the 17th section of the 4th Vic. c. 30, [C. St. L. C, cap. 37, sec. 10,] and this in virtue of the sees. 1st and 28th of the same Ordinance, [C. St. L. C. ib. 1 & 5 & 45,] which prescribe that the mortgage must be special and must be registered, and of the 29th section [C. Sts. L. C. ib. 46] which enumerates the general mortga- ges that will continue to subsist and must be registered. Hillier vs. Bentley, S. C, 7 L. C- R., p. 241. 43. The assignor of an hypothecary claim may effectually discharge the same to the prejudice of the assignee, by registering a discharge thereof. Morrin vs. Daly et al., and Derousselle, S. C, 7 L. C. R., p. 119. 44. Ventilation of the proceeds of an immoveable property jnay be ordered, in order to distribute the proceeds of the land among the creditors of the vendor, and the proceeds of the improvements among the creditors of the purchaser. Bedard vs. Dugal and Bedard and Brunet, S. C, 1 L. C.R., p. 173. 45. An hypothique generate dating as far back as 1815, and claimed in respect of land situate in the county of Sher- brooke, and duly registered in accordance with the provisions of the Registry Ordinance cannot be affected by want of registration during the period that the 10 and 11 Geo. IV, c. 8, was in force, without averment that the debtor held the land whilst the Statute was in force. The Queen and Comte et al., Q. B., 2 L. C. J., p. 86. HYP 147 HYPOTHfeQUE : — 46. The non-registration of a deed of conveyance under the Provincial Statute 10 and 11 Geo. IV, c. 8, 1 Wm. IV c. 3, and 2 Wm. IV, c. 7, does not operate as an absolute nullity, if the subsequent purchaser be not a bond fide purchaser for valuable consideration. Smith vs. Terrill and Phillips Opposant, 2 llev. de Leg. p. 194. 47. A promise of sale, followed by possession is equivalent to an absolute sale ; and an hypothecary claim, created against the vendor, subsequently to such promise of sale, is inoperative as against the property so sold. Gosselin and the Grand Trunk Railway Company, Q. B., 9 L. C. R., p. 315. 48. A purchaser who has registered his title deed cannot be bound to suffer a coupe de bois, to which the property has been subjected, and the title whereof has not been registered, ■although the purchaser had a knowledge of its existence. Thibeault vs. Dupre et al., S. C, 5 L. C. R., p. 393. 49. A bankrupt, purchaser of real property from the trustees of his estate, the requirements of law having been duly observed, cannot revive an hypothecary claim, which had subsisted upon the property and which had been extin- guished by the sale made under legal authority. And a •subsequent purchaser sued hypothecarily, by reason of such claim, may urge, by way of exception, any fraud with "which such claim may be tainted in consequence of its revival. A donation of the pretended arrears of a life rent to the minor children of the bankrupt, such rent being payable by the bankrupt, and the latter accepting the dona- tion for his children, after the granting of his certificate of discharge and the sale of the property, is inoperative in relation to the purchaser, and the donation will be declared to be fraudulent, although the minors had not personally been participators in the fraud. Cadieuz and Finet et al., Q. B., 6 L. C. R., p. 446. Biit see Exp. Chabot, Rev. de L6g., p. 265. 50. A bailleur de fonds, who has previously brought an action against his personal debtor, and caused the sale of an immoveable property acquired by such debtor in exchange for the one subject to the privilege of the bailleur de fonds, is not in law to be considered as having ratified the exchange, nor as having consented to the substitution of one immoveable property for the other, nor as having renounced or abandoned his privilege upon the property by him sold. Bouchard and Blais, Q. B., 4 L. C. R., p. 371. 51. The purchaser of a property, who has undertaken to discharge certain hypothecary claims equal in amount to the value of such property, cannot, when sued en diclaration d'hypotteque by a creditor, other than those he has under- taken to pay, but whose claim is posterior to those last mentioned creditors, require that such creditor will give him security that the property when brought to sale, will realize a sufficient sum to satisfy the claims he has under- taken to pay ; as he would have a right to do, if he were himself an hypothecary creditor for the amount equal to the 10* 148 H Y P HYPOTHilQUE : — value of the property, or had actually paid claims to that amount, and had himself acquired the same. Tessier vs. Falardeau, S. C, 6 L. C. E., p. 163. 52. The vendor of real estate has a revocatory action in default of payment of the purchase money, whether such purchase be made with or without delay. The stipulation to pay a debt to a third person, becomes a perfect delegation, by the registration at length of the deed containing the same, under the 8 Vic. c. 27, sec. 6. [Effete but effect saved, v C. St. L. C, Schedule B, p. 1000.] So a bailleur defonds, who has not registered, can demand the resiliation of the deed of sale, in default of payment of the purchase money, to the prejudice of a subsequent purchaser, who has not undertaken to pay him, and who has caused his deed to be registered at length. Pattenaude and Lerige dit Laplante et al., Q. B., 7 L. C. R., p. 66. 53. The compulsory sale for public uses, of a real estate hypothecated for a rente constitute, only entitles the creditor of such rente to claim a proportion of the capital equivalent to the value of the proportion of the estate alienated, and not the whole of such capital. The Montreal and Lachine Railroad Company and Seers et al., and La Banque du Pewple and Donegani, S. C, 1 L. C. B., p. 125. 54. A servitude reelle created previous to the Registry Laws, need not be registered. Dorion et al., vs. Rivet et al., S. C, 7 L. C. B., p. 257. And Dorion et al., and Rivet, Q. B., 1 L. C. J., p. 308. 55. The parties only who suffered by the fires of 1845, and were then, and are now, owners of the lots upon which they intend to rebuild, are entitled to a loan by way of debentures, conformably to the provisions of the 9th Vic. c. 62, and of the 10 and 11 Vic. c. 35, and in such cases only, the Crown has a privilege for such loan, and for a loan made to persons who have become owners of such lots/subsequently to the fires of 1845. Titu et al. and Glackemeyer, and the Attorney General and Lemoine, S. C, 1 L. C. B., p. 310. But in Lavoie, against the Queen, it was held in the Q. B., that the general hypothec given to the Crown by the 18th sect, of the 9 Vic. c. 62, for the advances under that act, attaches without registration, although the loan was made after the borrower had rebuilt, and was not applied as con- templated- 11 L. C. B., p. 63. The Corporation of the city of Quebec has no privilege upon immoveable property for the assessment imposed upon the same ; such privilege not being given by the act of incorporation and having no existence at common law. Ensor and Orkney, S. C, 3 L. C. B., p. 289. 56. A bailleur defonds, who has not enregistered his deed within the delay fixed by the 16 Vic, c. 206, [C. St. L. C, cap. 37,] is excluded by the subsequent purchaser, who has not assumed the debt due to the bailleur de fonds, and who has enregistered before him. Lynch vs. Lcduc and Maihieu, S,C.,3i/.G.J.,p. 120. HYP to IMP 149 Hypotheque : — 57. A person who consents to the hypothecation in favor of another, of the real estate hypothecated in his own favor, will be held to have waived his priority of hypothec in favor of the creditor obtaining such subsequent hypothec. Symes vs. McDonald and Robertson et al., Opposants, S. C, 9LC.R.,p. 182. . 58. Priority of cession of a part of a hypothecary claim, gives no preference to the first cessionnaire over the second, or any subsequent cessionnaire, in the distribution of moneys arising from the sale of the property hypothecated. Giroux vs. Gauthier, and Giroux and Mongenais, S. C, 6 L. C. J., p. 240, and 12 L. C. B,., p. 439. 59. The creditor who has a hypothecary right prior to certain charges reserved in the seizure of an immoveable, may by opposition afin d?annuler obtain the radiation of these charges. Limoges vs. Marsant and Labette, S. C, 7 L. C. J., p. 276. — Vide, Smith vs. Brmon, 2 Rev. de Leg., p. 474. " Builder. " Compensation. ■ " Fidejusseur. • " Insurance. " Obligation. • " Petitory Action. Illegality of Sentence : — Vide Habeas Corpus. Impenses : — Vide Usufructuary. Impotency : — Impotency at the time of marriage renders such mar- riage null ; and the Court will order the defendant to submit to the inspection of two surgeons, and in default of his com- pliance with this order the marriage will be declared null and void. Dorion and Laurent, in appeal from Montreal, 1844. Improvements. — 1. A tiers detenteur has no right to claim to hold the property until his improvements have been paid for. Price vs. Nelson, S. C, 2 L. C. R., p. 455. But he may demand security that the immoveable will be sold for a sufficient sum to reimburse him. Wiihall vs. Ellis, S. C, 4 L. C. R., p. 358. 2. A defendant who has made permanent and durable improvements upon a lot of land sought to be recovered by petitory action, has a right to be indemnified to the extent of the increased value given by such improvements to the lot, before being compelled to abandon the same. And a defendant in possession of the rights of W., the original lessee of the Crown, under lease for 21 years from the 12th February, 1818, is entitled to hold possession until the expiry of the lease (12th February, 1839) ; and the plaintiff is only entitled to the rents, issues and profits of the lot from the last mentioned date, notwithstanding he holds the lot by a transfer made in 1835 of the rights ofL. as patentee of the Crown under letters patent of 1827. And in such a__case, the Court below should have ordered anea:/>ertwetoaseertaia the value of the ameliorations, and the amount of the rents issues and profits, such ameliorations to be valued from the 150 IMP to INC Improvements : — date of the lease, and the rents, issues and profits from the expiry thereof, the expertise further to establish the value of the lot, apart from the increased value given to it by the ameliorations. Lawrence and Stuart, Q. B., 6 L. C. R., p. 294. 3. A squatter who has made substantial improvements (impemes utiles) upon real property occupied by him, with- out the consent of the proprietor, is entitled to judgment against the proprietor for the excess of the value of such improvements beyond the rents, issues and profits, and to retain possession of the real property till paid for his improvements. The value of such improvements must be established by an expertise. Stuart vs. Eaton, C. C, 8 L. C. R,, p. 113. Confirmed by the Superior Court, lb., p. 120. But a possessor of land in bad faith has no droit de retention for improvements. Lane et al., vs. Beloge, S. C, 1 L. C. J., p. 3.* 4. Upon a claim for improvements upon real estate the usufruct only of which has been seized, a proportion alone of the value of such improvements will be allowed, measured upon the increased value given to such usufruct. Fauteux •and Boston, Q. B., 9 L. C. R., p. 263. Imputation. — 1. If the parties have not themselves imputed a pay- ment to the settlement of any special account, it will be considered as imputed to the payment of interest. Re Du- nwuchelle Sf Moffatt and Girouard, opposants, 2 Rev. deLeg., p. 258. f And so also it was held, Lafontaine, C. J., dissenting, in a case of Rice fy al., and Ahem, Q. B., 6 L. C. J., p. 201. And afterwards on a debt bearing interest. Broohs <£• al. vs. Clegg, Q. B., 12 L. C. R., p. 461. 2. But moneys paid by an hypothecary debtor to his cre- ditor, in respect of two debts of different dates, both payable by instalments, but subject to the privilege of acquitting the more ancient one before it became due, without imputation made at the time of payment, will be imputed, lstly. In ex- tinction ol the interest accrued on the more ancient debt ; 2ndly. On the principal of that debt whether due or not ; 3rdly. On the interest due on the more recent debt, and lastly, on' the principal of the last mentioned debt. Casson, vs. Thompson, S. C, 1 L. C. J., p. 156. Incidental demand :— An incidental plaintiff must shew on the face of his declaration that his demand is connected with the de- mand in chief j and the incidental defendant must avail him- self of his omission by an exception a la fornte, otherwise he waives the irregularity of the proceeding and admits that he is rectus in curid. Turner Sf al., vs. Whitfield, S. R., P« 46. Incumbrances on Property :— Where a property subject by law to lods et ventes is sold, without mentioning such incumbrance, the purchaser is presumed to be aware of it. Mussen vs. P hilbin, S. C, 7 L. C. J., p. 165. * It would . be instructive to know in what the definition of a squatter differs from that of a possessor in bad faith. , f See the repprt for the reasons o/ dissent of Judge Valheres. Also for n&te of a con- trary decision at Quebec, in the case of Stevenson vs. Gugy. I N D to I N S 151 Indemnity for demolition or house to stop fire : — Vide Mandamus. Imdemnity:— Vide Railway cases. " :— " Road. Indians : — Indians have not by law any right or title by virtue of which they can sell and dispose of the wood growing upon their lands set apart and appropriated to and for the use of the tribe or body of Indians therein residing. Such wood is held in trust by the Commissioner of Indians Lands for Lower Canada. The Commissioner of Indian Lands vs. Pay- ant dit St. Onge, 3 L. C. J., p. 313. But they may qualify as security in appeal on lands held by them according to the custom of the tribe. Nianentsiasa and Akwirente &• al., Q. B., 3L. C. J.,p. 316. Indictment: — 1, The private prosecutor on an indictment for forcible entry and detainer, cannot be examined as a witness, if the Court may order restitution. But if, since such forcible entry and detainer, he has been restored to possession, he may be a witness. R. vs. Hughson Sf al., 2 Rev. de L6g., p. 54. 2. Before pleading to an indictment, the defendant must submit to the jurisdiction of tke Court. The Queen vs. Max- well, Q. B., 10 L. C. R., p. 45. 3. Where on a conviction for forcible entry, it appears, that defendant entered by an open door but sent some one round to push in the windows, and he himself took them off the hinges, the conviction will be held good. Q. B., appeal side, Reg. vs. Martin, 10 L. C. R., p. 435. Indication de Paiement: — Vide Compensation. Indorsement: — Vide Promissory Note. Information: — Vide Conviction. Informer: — Vide Execution. Inimitie Capitale : — Vide Recusation. Injunction: — Vide Mandamus. Innkeeper : — Vide Hotellier. Insanity : — The action ab irato cannot be brought in this Province; and aversion, to be a prooff of insanity, must be an aversion without cause. Phillips vs. Anderson, S. C, L. R., p. 71, " :— Vide Clarke vs. Clarke fy al., S. C. L. R., p. 20. Inscription de faux : — 1. An inscription en faux cannot be had against an instrument which bears none of the characteristics of authenticity. Molson vs. Burroughs, S. C, 2 L. C. J., p. 72. And the certificate of the attorneys of one of the parties in a cause upon a copy of judgment, to the efFect that the copy of judgment certified by them is a true copy, is not a faux, as known and recognized by law. Perry vs. Milne, S. C, 6 L. C. J., p. 243. But in a cause of Seymour and Horner Sf a2., Monk, A. J. appears to have been of a different opinion, S. C., 12 L. C. [I., p. 90. And the return of the bailiff of service made by him of such a copy of judgment, so certified as a true copy, is not a faux. And moyens de faux filed in such a case are irrelevant and inadmissible. Perry vs. Milne, V. supra 2. And a bailiff's return that he had served two defen- dants, co-partners, resident in Ottawa, at their office in the city of Montreal, it being admitted that they had no office in Montreal, is not a faux. Hobbs vs. Seymour $• al., S. C, 13 ' L. C. R., p. 75. 152 INS Inscription de Faux : — 3. An inscription en faux can be made by means of a direct action ; and in an action to have a deed declared null, the plaintiff may also inscribe against the deed filed by himself. Perrault and Simard Sf al., Q. B., 6 L. C. R., p. 17. And in the same case, p. 24, it was held, that after closing the enquSte, the plaintiff en faux was entitled to amend moyens de faux, by adding thereto new facts brought out by the evidence adduced. 4. In an inscription en faux, the proems verbal of the exhibit attacked may be made immediately after its deposit. Mo- reau Sf vir. vs. Leonard, S. C, 2 L. C. J., p. 136. f>. A petition to inscribe en faux will be deemed abandoned if, the case being inscribed on the merits, the petitioner neglect to move that it be discharged. PhiMipps vs. Hart Sf al., and Hart, S. C, 1 L. C. R., p. 305. 6. The defendant en faux, plaintiff in the principal action, is not bound to answer the pleading in the main action until the inscription en faux has been disposed of. Martineau vs. Karrigan, S. C, 3 L.*C. J., p. 268. On an inscription en faux, the allegation that only one notary was present at the execution of the will which is im- peached, is a moyen pertinent and admissible. Proulx vs. Proulx, 2 Rev. de Leg., p. 61. 8. An inscription de faux cannot be maintained against a notarial copy containing a slight alteration or erasure, as for instance, altering the word party so as to make it parties, the alteration being unimportant. Halpin and Ryan, Q. B., 5 L. C. R., p. 430. But an inscription en faux will be allowed where the word "mirth" has been inserted in a copy of judgment for the word " month," the sense of the sentence being totally destroyed. Seymour vs. Horner Sf al., S. C, 12 L. C. R., p. 90. 9. The party injured by the effacing of an essential part of a judgment after it was rendered cannot proceed against the judgment en faux ; but must apply to the Court to have the judgment entered up in the registers as it was pro- nounced. Ross and Palsgrave, Q. B., 5 L. C. J., p. 141. 10. In the case of Routier vs. Robitaille, S. R., p. 440, it was held that a notary could not be examined as a witness, nor compelled to give evidence on an inscription en faux touching the validity of any instrument executed before him. But it is now well established that a notary or the notaries who have received, or the temoins instrumentaires, who have witnessed the execution of a will or other authen- tic instrument, are competent witnesses upon an inscription en faux, impugning the validity of such will or other, authentic instrument. Welling vs. Parant, S. C, 4 L. C. R., p. 228. Or to establish the truth of the facts set forth in the deed argui defaux. TailleferSfal. vs. Taillefer Sf al., S. C, L. R., p. 32. And in an inscription de faux against the parish register, the Cure of the parish, by whom the entry purports to have been made, may be examined as a witness. Languedoc Sf al. vs. Laviolette, S. C, L. R., p, 63. But the temoins instrumentaires to a deed argul defaux are not suffi- INS !53 Inscription de Faux: — cienl. to establish the faux. Meunier vs. Cardinal, S. C. L. R.,p. 28. 11. Upon an exception a la forme, alleging the want of service of the writ and declaration in the cause, the Court will, iipou consent given to that effect by the plaintiff, order proof upon such exception without the formality of an. inscription en faux. Charlton vs. Cary, S. C, 6 L. C. R., p. 268. And where there was a variance between a writ of summons and the copy, it is not necessary to inscribe en faux against the return of the bailiff, who has certified to having served a true copy. Theberge 8f Pattenaude, S. C, 2L. C. R.,p. 110. 12. But in the Trust and Loan Company and McKay, Q. B., 9 L. C. R., p. 465, it was held that no proof will be admitted against the validity of such return without an inscription en faux. And the sheriff's return cannot be contested but by an inscription en faux. Lespirance and Allard S,- al., Q. B., 1 L. C. R., p. 154. 13. On an inscription en faux against pleadings and exhibits, as not having been filed on the day they purport to have been filed, they may be withdrawn and others filed in their place, on payment of the costs of the procedure en faux and 30s. costs. Mayer vs. Thompson & al., S. C, 1 L. C. J., p. 280. 14. In proceedings on inscription de faux it is not neces- sary to make election of domicile. Martineau vs. Karrigan, S. C, 3 L. C. J., p. 190. 15. The truth of the certificate of the prothonotary can. only be attacked by inscription en faux. De Beaujeu vs. Masse, S. C, 7 L. C. J., p. 105. 16. A party will not be allowed to inscribe en faux against a bailiff's return later than four days after the filing of the return without cause shewn. Perry vs. Milne and The Ontario Bank, S. C, 6 L.C. J., p. 243. But otherwise upon cause shewn on affidavit, lb. Also in the case of Seymour vs. Horner Sf al., S. C, 12 L. C. J., p. 90. " : — Vide Amendment. u . — tt Notary. " : — " Registers of Baptism. Inscription: — Vide Pleading and Practice. Insinuation : — Vide HrpoTHEQUE. Insolvency: — Vide Assignment. " ~: — " Deconfiture. « . — u Privity of Contract. Inspector of Ashes : — Vide Agreement. Inspector of Roads : — Vide Notice of Action. Instance : — Vide Co-partners. Instituteurs : — The salary of a teacher cannot be seized. Roy vs. Codire et les Commissaires d'Ecole de St. Ours and Meilleur, T. S., S. C, L. R., p. 59. Insurance : — 1. The sale of injured property extinguishes the con- tract of insurance as between the insurer and the vendor ; the profit of such insurance being vested in the vendee so 154 INS Insurance : — soon as the insurer is notified of the sale and acquiesces in it. Leclaire vs. Crapser, S. C, L. R., p. 18. 2. Policies of insurance are to be construed by the same rules as other instruments, therefore where there is an express warranty, there is no room for implication of any kind. Scott vs. The Quebec Fire Insurance Company, S. R. p. 147. 3. By the clause or condition in policies of insurance, that in case of any dispute between the parties, it shall be referred to arbitration, the Courts are not ousted of their jurisdiction, nor can they compel the parties to submit to a reference in the progress of a suit. Scott et al., vs. The Phcenix Assurance Company, S. R., p. 152. 4. The proprietor of a house destroyed by fire, and insured, can insist strictly upon the clause contained in the policy of insurance, that the works shall be seen and examined by experts, and that so long as the insurance company shall not have complied with this condition, even for inconsiderable works, the proprietor is not bound to receive his house in that state, and can sue the insurance company to compel it to surrender the possession of the premises in the state in which they ought to be, and after compliance with the con- dition of an expertise. And the circumstance of the proprietor having, during reconstruction, made suggestions to thetmilder as to the manner of such reconstruction, or as to the division of the house, cannot be interpreted so as to deprive him of his right to an expertise. Atteyn vs. The Quebec Fire Assurance Company, S. C, 11 L. C. R., p. 394. 5. If a condition referred to in a policy of insurance against fire requires, in the event of JossJ and before payment thereof, a certificate to be procured under the hands of a magistrate or sworn notary of the city or district, importing that he is acquainted with the character and circumstances of the persons insured, and verily believes that they have really, and by misfortune and without fraud, sustained, by fire, loss and damage, to the amount therein mentioned, such certificate is a condition precedent to a recovery of any loss against the insurers on the policy.. And if a certificate be procured, in which a knowledge and belief as to the amount is omitted, it will be insufficient. Scott et al., The Phcenix Assurance Company, P. C, S. R., p. 354. And where the furnishing of a certificate, as required by the condition of a policy of insurance, of three respectable persons, to the effect that they believed tjiat the loss had not occurred by fraud, is a condition precedent, without a compliance with which the assured cannot recover. Bacine vs. The Equitable Insu- rance Company, S. C, 6 L. C. J., p. 89.* * These decisions offer an example of the evil of using technicalities drawn from a system of jurisprudence wholly different from ours. The "condition precedent" translated into the language of the civil law, if it have a synonyme nt all, is a " suspensive condition." But in addition to the " condition" and the " term," by which obligations may he affected, the civil law also knows another limitation, the " modics." These three limitations to obligations are subject to different rules, therefore they cannot safely he classed together. In the case before us, it would seem, that the judgment turned on the want of title, Until this " condition precedent" was complied with. In fact no certificate, no obligation. This is Unquestionably the rule where there is a suspensive condition, but not where the contract INS 15^ Insurance : — 6. In the case of a policy of insurance granting permis- sion, in the body thereof, to insure elsewhere, oh giving notice to that end to the directors of the company, in order that the second insurance might be endorsed on the policy, and requiring by the by-laws of the company, printed on the back of the policy, that such notice be given and such second insurance endorsed on the policy, a peine de nulliU, a notice of such second insurance, after . the fire, and as a consequence not endorsed on the policy, is. sufficient. Soupras vs. The Mutual Fire Insurance Company for the Counties of Chambly and Huntingdon, S. C, 1 L. C. J., p. 197. l 7. And in Atwell is. Tfie Western Assurance Company, S. C, 1 L. C. J., p. 278, it was held, that the condition usually endorsed on policies of insurance, respecting double insu- rance, will be held to be waived on the part of the Insurance company, if their agent, on being notified of such double insu- rance, make no specific objection to the claim of the assured on that ground. But this case was reversed in Appeal, Q. B., 2 L. C. J., p. 181. But in the case of Chalmers and the Mutual Fire Insurance Company of Stanstead and Sherbrooke Counties, Q. B., 3 L. C. J., p. 2, it was held, that the 23rd section of the Act 4 Wm. IV, c. 33, respecting double insu- rance on houses and buildings, does not apply to insurances on goods. And an endorsement on a policy issued under the provisions of the said Act, consenting to the removal of the goods insured, from the building described in the policy to another building, and signed by the secretary alone, is binding on the Company. 8. But the rule endorsed on policies in some insurance companies, that the insured shall notify the company of the fire, and the circumstances attending it, is not, in every case, so fatal and de rigueur, that in default of its being fulfilled to the letter, the insured will for ever lose his recourse. Dill vs. La Compagnie d' Assurance de Quebec, 1 Rev. de L6g. p. 113. And the mere substitution of one office for another, in case of Fire Insurance, does not necessitate the giving of notice, as in the case of a new or double insurance. Pacaud vs. The Monarch Insurance Company, S. C, 1 L. C. J., p. 284. 9. A contract of insurance may exist .without the execu- tion or issue of any policy or of any interim receipt, ev^n with a company whose charter and by-laws manifestly con- template the' execution of a policy in all cases, and such contract may be proved by parol evidence. The Montreal Assurance Company and McGillivray, Q. B., 2 L. C. J., p. 221. But in the Privy Council it was held that the appel- only stipulates a modus. In the latter case there is a title, but the execution as against the party bound by the contract cannot be enforced, unless the modus be complied with or have become impossible. Now, if the giving a certificate by a magistrate be a " condition prece- dent," or a " suspensive condition," and that the office of magistrate were abolished, it would be impossible for the insured to recover. But I take it that the obligation to grant a certificate is a modus, and that the decisions is only correct, because the insured did not shew that it had become impossible for him to peribrm the obligation in the way prescribed. JEt ita sajiissimc conditio accipitur ■pro modo. Cujas. T. 6. cot. 401 E. 156 INS Insurance : — lants, under the provisions of their acts of incorporation, (4 Vic. c. 37 — 6 Vic. c. 22,) cannot make any contracts for fire assurance except by policy. 9 L. C. R., p. 488 ; 11 L. C. R., p. 325 ; 13 Moore's Rep. p. 87. And premium taken in the shape of a promissory note of a third party, though dishonoured, is a sufficient consideration to support a contract of insurance. In such a case the evidence of the person who undertook to effect the insurance for a morgtage, is admissible to prove that he did so. And evidence of the declarations of the manager that the insurance had been effected, and of his promises of a policy, made about the date of the contract, is admissible. 10. The sale by the proprietor and mortgagor of the real estate assured, during the pendency of the contract of insu- rance in favor of the hypothecary creditor, does not effect such insurance, though part of the consideration of such sale be a promise by the purchaser to pay the hypothecary creditor her debt, and though she be a party to it. The Montreal Assurance Company and McGillivray, Q. B., 2 L. C. J., p. 221. Also, 8 L. C. R., p. 401. 1 1 . Interest on loss may be awarded from the time of the fire. lb. An insurance note is not a promissory note, falling within the commercial code. The endorser is an ordinary caution solidaire. Montreal Mutual Assurance Company vs. Dufresne et al., S. C, L. R., p. 55. Vide Vbo. Promissory Note. 12. The interest of the vendor of real property, in a policy of insurance against fire, effected by the vendor previous to the sale, passes by operation of law to the purchaser, the sale being notified to the company. And a payment made by the insurance company to the vendor, on a loss occurring after the sale, of a sum greater than the balance of the purchase money remaining unpaid, accrues to the benefit of the pur- chaser as a discharge from such balance. Leclaire vs. Crapser, S. C, 5 L. C. R., p. 487. 13. The insurance by an hypothecary creditor of the house or building subject to his mortgage, is not an insu- rance of the building per se, but only of the creditor's security for the payment of his debt. To support an action on a policy, there must be a loss existing at the time of the action brought ; and if before action brought, the premises be re-built, whereby creditor's security is restored, he cannot recover as for a loss. Mathewson vs. Western Insurance Company, S. C, 4 L. C. J., p. 57, and 10 L. C. R., p. 8. 14. Liability of consignee who shall have failed to insure according to the usage of trade, if any such exists, cannot be taken advantage of by seizing creditor of consignor on a Tiers-Saisi. Elliot vs. Macdonald and Ryan, S. C, L. R.,p.69. But in appeal it was held that in contesting the declaration of tiers-saisi, the allegations made by the contesting creditor, that the tiers-saisi received from the debtor goods for sale on commission, and for safe keeping and custody until public sale, according to the usage and custom of trade and merchants at a particular place, and that by the said usage and custom, the tiers-saisi was bound to insure the goods INS 157 Insurance; — against fire, are sufficient, if proved, to render such tiers-saisi liable to the contesting party in case of loss by fire without insurance of such goods. So also in case an agreement is alleged between the debtor as consignor, and the tiers-saisi that such goods were to be insured. Elliot et a!., and Ryan et al., Q. B., 6 L. C. R.., p. 89. 15. A Policy of Insurance, describing the premises as a house bounded in rear by a stone building covered with tin, and by a yard, in which yard there was being erected a first class store, which would communicate with the buildings insured, is not incorrect, and is not null, although it was proved that there was between the house and stone build- ing, a brick building covered with shingles, communicating with both by doors, inasmuch as the omission of mentioning such doors in the description, was not proved to have been a fraudulent concealment, and inasmuch as it was not established that the fire had been occasioned and had extended by means of such apertures. Casey and Goldsmid et al., Q. B., 4- L. C. E.., p. 107. The judgment of the Superior Court, 2 L. C. R., p. 200, was thus reversed. And in a case of Wilson vs. The State Insurance Company, it was held in the S. C. that the failure of the assured to disclose the existence of a fulling-mill under the same roof, as the buildings insured and destroyed by fire, is not a material concealment or misrepresentation, although it appear that the rate of insurance would have been higher had it been known, provided it be shewn by the evidence adduced by plaintiff that the risk was not thereby increased. 7 L. C. J., p. 223. But in a case of marine insurance, it was held, that a wilful deviation, although the loss was not occasioned by nor attribuable to it, exonerates the underwriters from liability. Beacon Life and Fire Assurance Company and Gibb et al., P. C, 13 L. C. R,., p. 81 ; and 7 L. C. J y p. 57. 16. In the action of Somers vs. T/ie Athenceum Insurance Company, S. C, 3 L. C. J. p. 67, it was held, that in an action on a policy of insurance against fire, for the value of a house attached on both sides to other buildings, and inhabited for a portion of the time during which the policy was running by four tenants, is maintainable, though ,the house is described in the policy as detached from other buildings and inhabited by two tenants, provided it be proved that the error in. the description of the house was made by the agent of the insurer, and that the increased number of tenants were not in the house either at the time of effecting the policy or at that of the fire. And the true description of the premises need not be alleged on the declaration, nor the error alluded to. 17. An answer to a plea by defendant, alleging the mis- description, may be made, admitting the misdescription but charging the error upon the plaintiff's agent ; and it is no departure. The parol testimony Of the agent is Sufficient to support the allegations of the answer and sustain the action. And it makes no difference that the policy was for a year before the fire in plaintiff's possession, unobjected to, although 158 INS Insurance : — there was a printed notice on it to examine it and see if it was correct ; or that the diagram to which reference was made, both in the interim receipt and in the policy, corre- sponded with the description in the policy. See also 9 L. C.R.,p. 61. 18. Under a clause in a policy of insurance, to the effect that if there appear fraud in the claim made for a loss, or false swearing or affirmation in support thereof, the claimant shall forfeit all' benefit under such policy, the Court will reject the claim of the policy holder if the Company establish that the claim is unjust and fraudulent and far in excess of the actual loss, to the knowledge of the policy holder. And the general evidence in such a case may outweigh the posi- tive testimony of witnesses, where the evidence of these witnesses is not consistent, and where the presumptions adduced are against its truth. Grenier et al. vs. The Monarch Assurance Company, S. C, 3 L. C. J., p. 100. Also Thomas et al. vs. The Times and Beacon Company, S. C, 3 L. C. J.; p. 162. 19. In marine insurance, an endorsement upon an open policy of a cargo for insurance is incomplete, if the name of the vessel by which such cargo is shipped is in blank ; but it is perfected by a a notice to the insurers of the name of the vessel, whether they fill up the blank or not. " Class, B. 1," without any reference to a special classification, will be con- strued, on a policy of insurance, as meaning the class of vessels recognized by mariners as class B. 1, if there be any such class. The person who insures as agent for another cannot sue for indemnity in his own name as principal, and a consignee tinder a policy in his own name can only recover for his insurance agent. The possession of a bill of lading is only prima facie evidence of proprietorship. Cusack vs. The Mutual Insurance Company of Buffalo, S. C, 6 L. C. J., p. 97. 20. Assurers against fire have a legal right, on paying the loss covered by their policy, to be subrogated in the rights and actions of the assured against the originators of the fire and loss. And a marguillier en charge, having power to receive from the insurers the sum insured on the property of the Fabrique and to grant a discharge therefor, has also the power to subrogate the assurers in the rights and actions of the Fabrique against the originators of the fire and loss ; al- though he cannot legally make an assignment, by way of sale, of any such rights and actions without special authority. And assurers subrogated, on payment of the loss in the rights and actions of the assured, for a part of the loss only, can maintain an action against the originators of the fire and loss for such part. Under a plea of general issue to the action, for a part of the loss only, the originators of the fire and loss cannot require that the other parties injured by the same fire be united in the same action, so as to save them, the origi- nators, from th; costs of more than one action for the whole loss. The Qif 1 - c Fire Assurance Company and Molson et al., Q. B., 1L. C. !l.,p. 222. INS to INT 159 Insurance : — 21. Insurance against fire, effected upon a quantity of coals in a certain yard, covers not only the coals deposited at the time but those deposited since, and covers also risk arising from the spontaneous combustion of such coals. The British American Insurance Company and Joseph, Q.B.. 9 L. C. R., p. 448. 22. In insurance against fire the insurers pay the whole loss which does not exceed the amount insured, although the goods insured be of greater value. Peddie vs. The Quebec Fire Insurance Company., S. R., p. 174. 23. In the case of insurance of certain undetermined quantities of ashes belonging to different persons, damaged by water and subsequently destroyed by fire, each of the par- ties interested is bound to bear his proportion of the reduction made upon the amount insured, by reason of the loss caused by water, inasmuch as there were no means of ascertaining to whom the ashes damaged by water belonged. Gilmour et al. vs. Dyde et al., S. C, 12 L. C. R., p. 337. 24. The loss under a clause in a policy, stipulating that the loss or damages shall be estimated according to the true and actual cost value of the property at the time the loss shall happen, must be ascertained from proof of the money value of the subject in the existing markets. Grant vs. TJie JEtna, S. C, 11 L. C. R,, p. 128. And so also it was held in The Equitable Fire Insurance Company and Quinn, Q. B., 11 L. C. R.,p. 170. 25. A clause in a policy of insurance, to the effect that no action can be brought after six months, is no bar to an action instituted after that time. Wilson vs. TJie State Insurance Company, S. C, 7 L. C.J., p. 223. 26. An assignee of a policy of insurance against loss by fire may recover without showing any loss whatever on his part. lb. 27. The amount of a policy of insurance upon the life of a husband, the premiums on which have been paid by him, and which have been received by the curator to his vacant estate, by reason of insolvency may, nevertheless, be claimed on behalf of the wife, by two trustees who accepted the donation of the amount of such policy of insurance, made by the contract of marriage, for the purpose of paying over the interest to the wife and the principal to the children, not- •withstanding that the donation and assignment were not noted on the books of the company, notification having been given in a place other than the place where the insurance was effected. Ex parte Spiers and the Attorney General, pro Regina, et al. claimants. S. C.,J) L. C. R., p. 450. " :— " True Bill. Interdict : — A person to whom a curator has been appointed cannot bind himself in a contract while the curatorship is subsisting. Emerick vs. Paterson, S. C, 7 L. C. R., p. 239. But a volun- tary interdiction is void, so far as a party with whom the interdict has contracted alone is concerned, if the interdiction has not been made known to the creditor and if such inter- 160 INT Interdict : — diction has not been inscribed on the register kept for that purpose. Be Chanted et al. and Be Chantal, Q. B., 2 L. C. R., p. 4B9. Interest: — 1. Maritime interest at the rate of 25 per centum on a bottomry bond at Quebec is not exorbitant, [Con. Stat. C., cap. -58.] White vs. The Bcedalus, S. R., p. 130. 2. The Crown can recover interest where a private person would be entitled to it. The Attorney General and Black, S. R., p. 324. 3. tn an action for arrears of interest, interest upon the sum demanded may be awarded. Anderson et al. vs. Des- saulles et al., S. C, 2 L/C. R., p. 481. 4. An obligation containing an undertaking to pay sums of money " and without interest from date till the payments become due," implies an undertaking to pay interest on the sums due from the day the payments become due. Rice et al. and Ahem, Q. B., 6 L. C. J., p. 201 ; also 12 L. C. R., p. 280. Where payments are made, both the principal and interest being due, the sum paid should be imputed first on the interest, lb. 5. On dotal moneys interest runs by law. Poirier vs. La- croix, S. C, 6 L. C. J., 302. But in a small case decided in the C. C, it was decided that interest only runs from the day of the demand. Gauthier vs. Dagenais, C. C, 7 L. C. J., p. 51. 6. On a policy of insurance, interest on loss may be awarded from the time of the fire. The Montreal Assurance Company and McGittivray, Q. B., 2 L. C. J., p. 221 ; also 8 L. C. R., p. 401. 7. Interest does not accrue on a legacy before a demande judiciaire. Bonacina vs. Bonacina and Mcintosh, S. C, 10 L. C. R., p. 79. 8. Where there is a book account and also a promissory note, and accounts stated had been rendered including both, and charging interest, the Court will not strike off the interest where the defendant had not pleaded an imputation of his payments as against the note. Torrance vs. Philbin, S. C, 4 L. C. J., p. 287. '9. Interest will run on a condemnation for damages from the date of the judgment. Walsh vs. Mayor, fyc. of the City of Montreal, S, C, 5 L. C. J., p. 335. But in a similar case, where the damage was caused by a mob, the corporation of Montreal was condemned to pay interest from the day of the demand. Douglas et al. vs. The Mayor, SfC. of Montreal, S. C, 13 L. C. R., p. 71. 10. Interest will run on a promissory note payable on demand from day of date. BeChantal vs. Pominwlle, S. C, 6 L. C. J., p. 88. 11. The only effect of the 16 Vic. c. 80 is the repealing of the penalties and nullity of the contract enacted by the Ordinance 17 Geo. III., c. 3. The only legal rate of interest is 6 per centum, and any maker of a promissory note or other instrument in writing, wherein interest above this rate has been retained or paid, has the right to have the same deducted I N T 161 Interest : — from the principal mentioned in the said note or instrument in wriling. Nye and Mcdo, Q. B., 7 L. C. Lt., p. 405. But defendant must establish excess retained over 6 %>er centum. Malo vs. Wurtele, S. C, 9 L. C. R., p. 43. 12. In the case of Beaudry and Proulx, Q. B., 10 L. 0. R., p. 236, on an obligation, the defendant pleaded thnt lie. had given the plaintiff two promissory notes for £60 each, in deduction of the amount due, and had paid them and also another note for £60, which was still in the plaintiff's hands. The plaintiff answered that the amount of the first notes had been received, and that the two last notes were given on an agreement that the defendant should pay 12 per cent interest on the obligation. The defendant, examined ou fails et arti- cles, admitted his undertaking to pay 12 per cent, interest, stating that he had been forced to make it by reason of his incapacity _to pay the capital at the time it became due. It was held — that the amount of the second note must be deducted from the amount of the principal and interest, at 6 per cent., and that the third note did not operate as a nova- tion and must be given back to defendant. Belleau vs. Degourdelle, S.C., 11 L.C. R,,p. 166. But see Con. Sts. C, c. 58. " : — Vide Hypoth£que. - " Imputation. -Vide Torra?ice Sf cd. vs. Torrance al lo ilvfrmlant, but Where the Court ha» a right lo take cognizance oi ihe subject mailer. V. uijra. The Mary fane, No. 20. JUR 16f Jurisdiction : — 18. Collision between a steamboat and a bateau, nboth. exclusively employed in the harbour of Quebec, not cogniz- able by this Court. The Lady Aylmer, p. '.'13, S. V. A. R. 19. The Court has no jurisdiction in a claim of property to an anchor, r the plaintiff, one of the witnesses examined at the inquest, to allege in his declaration, that the defendant, with eight others, in breach of their oath as jurors, and in violation of their duty, from hatred, in.il ice and ill-will to the plaintiff, and wilh the intent to injure him, did conspire to cliarge him falsely, with wilful and corrupt perjury, and. that the defendant aforesaid in njLirsiunee of such design, did. draw up a a libellous statem >nt, and did wickedly and maliciously procure, the s.irne to be published. And it is not competent for any o.ie or m u\; jurors, individually to prefer a charge of wilful and corrupt pjrvert'on of truth 168 JUR Jurors : — • against any of the witnesses examined ; and the juror who does so, will be liable to damages fur any injury suffered. J«rt Trial: — 1. In an action upon an agreement for the sale of a cargo of coal, by a merchant, to an ironmonger and black- smith, the trial and verdict of a jury may be obtained under the Provincial Ordinance 25 Geo. 111. c. 2, sect. 38. [Con. Sts. L. C, c. 87, sect. 6.] Hunt rs. Bruce et al., P. R., p. 3. And an action by a printer in matters relating to his business is susceptible of a trial by jury. Lor ell vs. Campb'll et al., S. C, 6 L. C. J., p. 115. But the Court of Q. B.,on granting an appeal in this case intimated that it would probably hold a different opinion, 6 L. C. J., 1 16. And insurance against fire by an insurance Company, being a commercial transac-' tion, an action on a policy of insurance may be tried by a jury. Smith vs. Irvine, 1 ttev. de Leg., p. 47. Also, McGilliomy vs. The Montreal Insurance Company, S. C, 5 L. C. R., p. 406. 2. A trial by jury may be had on an action for a breach of promise of marriage, as in an action for personal wrongs. Fergusson vs. Patton, S. C, 4 L. C. R., p. 383. But an action en declaration de paternite, although coupled with a demand for damages, is not susceptible of trial -by jury. Clarke vs. McGraih, S. C, 1 L. C. J., p. 5. Nor will a trial by jury be granted in a case where there are two causes of action, the one commercial and the other not. Mann et al., and Lambe, Q. B., 6 L. C. J., p. 75. 3. Mutilating a person's horse is not considered a personal wrong enlitling the parties to a trial by jury. Durocher vs. Meunier, S. C, 1 L. C. J., p. 290. 4. A trial by jury cannot be had in an action of damages, by two professional men, against three merchants, for breach ol contract to buy a railroad ; and so much of the conclusions of the defendants pleas in such action as pray for such trial by jury will be rejected on motion. Abbott etal. and Meikle- ham et al.,S. C, 2 L. C. J., p. 283. And an action of revendication of stolen goods, althought between merchant and merchant, is not susceptible of trial by jury. Fawcett et al., vs. Thompson et al., S. C, 3 L. C. J., p. 229. And an action of damages for malicious prosecution, arising out of mercantile transactions is not a civil suit of a mercantile nature susceptible of trial by jury, under the cap. 84, C. Sts. L. C, sect. 39. Fogarty is. Morrow et al., S. C, 5 L. C. J., p. 2.2. 5. An action en reddition de compte. between the represen- tatives of two successions, is not susceptible of trial by jury. Mann et al., vs. lambe, S. C, 5 L. C. J., p. 330. Confirmed in Appeal, 6 L. C J., p. 75. 6. An action for money lent by a non-trader to a com- mercial firm, is not liable to trial by jury. Wldshaw vs. Gi/mour et «•'., S. C, 6 L. C. J., p. 320, and 13 L. C. R., p. 94. 7. But an action by a non-trading corporation against a commercial firm, to recover buck an over-charge of freight, is susceptible of trial by jury. H r Majesty's Principal JUR to JUS 169 Jury Tkiax : — Secretary qf State for the War Department vs. Edmonstone et al., S. C, 6 L. C. J., p. 322. And in the Q. B., leave to appeal was refused, tlie case being clearly susceptible of trial by jury, lb., p. 323, (in note.) Also, 13 L. C. R., p. 79. 8. If a party moves for a trial by jnry, he cannot after- wards reject the verdict, on the ground that the jury ought not to have been allowed, because he, the mover, was not a merchant or a trader. Ricers vs. Duncan, S. R., p. 139. 9. When in any suit where trial by jury may be had, either party who desires to proceed by jury must make his option by his declaration or plea, or within four days afer issue joined. Wilson vs. The State Fire Insurance Company, S.C., 12 L. C.R.,p. 96. < 10. Notice of motion for jury trial, given within four days in vacation from the joining of issue, was held not to be a sufficient compliance with the 64th rule of practice, which declares that either party desiring to avail himself of the privilege of proceeding by jury trial must make his option so to do by declaration, plea or molion. within four days of issue joined. A/cand and Montr e >l Sf N. York R. Road Company, S.C..6L. C. J., p. 38. Johnston vs. Whitney, S. C, 6 L.C. J., p. 39 ; and Lovellvs. Campbell et al., S. C, 6 L. C. J., pp. 115, 116. But this case having gone to the Q. B., 12 L. C.R., p. 97, the judgment was reversed ; and it is now the settled jurisprudence that such notice is a sufficient compliance with the rule of practice. Also Sec/etan vs. Foote et al., S. C, 11 L. C. R. ; p. 497. 11. A defendant declared his option for a trial by jury by his first plea, which was dismissed on demurrer, but made no such option by the second, and it was held that the decla- ration of such option still subsisted unimpaired and that he was entitled to a trial by jury. Whyte and Nye, Q. B., 9 i. C.R.,p.228. 12. The question ordered to be submitted to the jury must cover the pleadings. The Montreal Assurance Company and Aitken, Q. B., 7 L. C. It., p. 88. 13. When the verdict and findings of a jury are contrary to evidence the Court will order a new trial. Beaudry and Fapin, Q. B., 1 L. C. J., p. 114. « : — Vide New Trial. .< . — (i Verdict. Justice of the Peace: — 1. Although Justices of the Peace, exer- cising summary jurisdiction, be the sole judges of the weight of evidence given before them, and no other of the Queen's Courts will examine whether they have formed the right conclusion from it or not, yet other Courts may and ought to examine whether the premises stated by the Justice are such as will warrant their conclusion in point of Jaw. The Scotia, p. 160, S.V. A. R. Justices of the Peace cannot give themselves jurisdiction in a particular case by finding that as a fact which is not a fact. lb. Where a Justice of the Peace, acting under the authority of the Merchant Seamen's Act (5 & 6 Wm. IV., c. 19, s. .17), 170 JUS to L A In- justice of the Peace : — had awarded wages to a seaman, on the ground that a charge of owners hud the effect of discharging the seaman from his contract ; this Court, considering that proceedings had before the Justice of the Peace did not preclude it from again entering into the enquiry, held — that the contract of the sea- man was a subsisting contract with the ship, notwithstanding the sale of her. lb. I n no form can this Court be made ancillary to the Justices. Court, still less be required to adopt, without examination, as legal premises on one demand, the premises which the Justices' Court may have adopted as legal premises on another demand, lb. > *'1. In a suit for the recovery of wages under the sum of fifty pounds. Justices acting under the authority of " The Merchant Shipping Act, 1854,," (17 & 18 Vic, c. 104,, ss. 188, 189), may refer the case to be adjudged by this Court. The Varuna, p. 357, S. V. A. R. 3. Where a limited authority is given to Justices of the Peace they cannot extend their jurisdiction to objects not - within it, by finding as a fact that which is not a fact ; and their warrant in such a case will be no protection to the officer who acts under it. The Haidee, V. A. C, 10 L. C. R., p. 101. Justification : — In action by a seaman against the master, a justifi- c ition, on the ground of mutinous, disobedient and disorderly beh iviour, sustained. The Coldstream, p. 386, S. V. A. R. " : — Vide Assault. « . — « Pleading & Practice. Kerr, (Judge): — Appointed Judge of the Vice-Admiralty Court at Quehec, by letters patent, under the Great Seal of the High Court of Admiralty of England, on the 19th of August, 1797. p. 152, S. V. A. R. His duty discharged by a Deputy, from the 30th of August, 1833, until his removal in October, 1834. Two ol his decisions in the Vice- Admiralty Court, p. 383, S.V. A. R. Landlord and Tenant : — Vide Lessor and Lessee. " " : — " .>AisrE Gagerie. Lands : — A certificate from the local Crown Land Agent, of a pay- ment of an instalment of the price of a Clergy lot, is not sufficient title to support an opposition founded on such certifi- cate. Under the 4 & 5 Vic, c. 100, sec. 18, and the 12 Vic, c. 31, sec. 2 [repealed 16 Vic, c 159, sec. 1], the holder is entitled only to maintain action against wrong doers or tres- passers. Ross and Beithelot Sf al., Q. 13., 6 L.C. R., p. 420. « : — Vide Execution. « . — « Free and Common Soccage. ct ; <• | lYPOTHftQL'E. Landsman : — Quaere. Whether a mere landsman, shipping himself as an able-bodied seaman, is entitled to any allowance whatever. The Venus p. 92, S.V. A. R. Larboard -.--Probable derivation of this nautical term. p. 235, IS. V. A. R., in note. LAW to LEA 171 Law : — In Lower Canada, a law may be abrogated by disuse. Des- forges and Dufaux Sf al., Q. B., 13 L. C. R., p. 179. Law Officers : — Opinion of the law officers of the Crown in England as to the authority of the judge to establish a table of fees, p. 69, S.V. A. R. Opinion of the law officers of the Crown in Canada, as to the practice of requiring proxies to be produced under cer- tain circumstances, p. 247, S. V. A, R. Lease: — 1. A demand for a sum of money due for rent, under a notarial lease, is sufficient, although the declaration does not allege that the lessee entered upon or enjoyed, and had the use of the premises demised, or that the plaintiff has per- formed the obligations he was bound to fulfil under the lease. Pirrie vs. Mcllugh Sf al., S. C, 1 L. C. R., p. 271. 2. The lessee cannot quietly enjoy the lease until rent is demanded of him, and then complain of such damage caused by the landlord as a reason for non-payment of the rent. Loranger vs. Perrault, S. C, L. 1.1., p. 50. But it was held in the Q. B., that in an action for rent by a lessor against a lessee, due under a lease executed before notaries, it is law- ful for the lessee to plead that he did not obtain possession of the premises leased at the time mentioned in the said lease ; and that by reason thereof he had suffered damages ; which damages the lessee will be entitled to deduct from the rent payable by him to the lessor. Belleau and The Queen, 12 L. C. R., p. 40. 3. There must be legal process, ,by a lessee against a lessor, or an order obtained by such lessee against such lessor to enable the lessee to obtain therescision of the lease between the parties, by reason of the insufficiency of the premises leased, and by reason of such premises being outof repair and not in tenantible order. Boulanget is. Doutre, S. C, 1 L. C. J., p. 393. And in an action for resiliation of a bail against two joint-lessees, one of whom has made default, the defendant will not be permitted to take new conclusions without notice to both of the defendants. Dubois and Lamothe Sf al., Q. B., 12 L. C. R., p. 480. 4. A lease may be rescinded in default of the premises leased having been provided with a privy, when from the want of it, such premises have become unwholesome. Lam- bert vs. Lefrangois, S. C, 11 L. C. R., p. 16. 5. The clause that the locdaire cannot sublet is not a c'ause comminatoire, and its violation rosiliates the lease. Hunt vs. Joseph Sfal., 2 Rev. de Leg., p. 52. 6. A lease Waffermage partiaire by which the lessee has undertaken to perform personally certain obligations, cannot be, by such lease, assigned to a third party. The assign- ment of such lease gives right to the lessor to seek theresci- sion of the contract of lease, and the resiliation of .the assign- \ ment after such action en rescision brought, does not deprive the lessor of his right to set aside the lease. Iludon vs. Hudon Sf al., S. C, 2 L. C. R., p. 30. 7. A lease can be broken by a subsequent sale, without any previous notice to the tenant by the vendor. Mountain vs. Leonard Sf al., S. C, 1 L. C. J., p. 272. But in a case of 172 LEA to LEG Lease : — Boucher vs. Forneret, S. C, 1 L. C. J., p. 269, it was held that a lease could not be broken by a subsequent sale, as far as regards the current year, nor without previous notice to that end. But when u house has been sold during the pen- dency of a lease, and the lessee on the written order of the lessor goes out, he cannot maintain an action of damages against him. McGinnis and Hodge, S. C, 2 L. C. R #J p. 447. 8. The lessee of real estate seized by the sheriff cannot oppose the sale unless it be sold subject to his unexpired lease. Choquette vs. Srodeur and Glouteney, 1 Rev. de Leg., p. 335. Nor under any lease. Bogle et al. vs. Chinic and Proulx etal. Vide Vo. Opposition. 9. Creditors cannot seize or sell the unexpired term of a lease held by their debtors, this right only exists in favor of the landlord under the 16 Vic. c. 200, sec. 11. [Repealed 18 Vic. c. 108.] Hobbs et al. vs. Jackion fy al., and Jackson, opposant, S. C, 10 L. C. R., p. 197. 10. A clause in a lease to the effect " That the lessees shall pay all extra premiums of insurance, that the company, at which the premises now leased may be insured, shall exact in consequence of the business or works done or car- ried on therein by the said lessees," applies to all extra pre- miums of insurance charged on account of the actual nature of the business carried on by the lessees, and does not merely contemplate hazardous contigencies which may afterwards arise, such as the erecting of steam engines, &c. Piatt vs. Kerry $■ al., S. C, 7 L. C. J., p. 80. 11. The lease of a mill cannot be assimilated to the lease of a farm, in such a way as that the law will allow a reduc- tion in the rent stipulated in case of any unforeseen accident. Corriieau vs. Pouliot, 1 Rev. de Leg., p. 184. 12. The lessee of a lot and water power near the Lachine Canal, and within the limits of the city of Montreal, from the Commissioner of Public Works under a lease for twenty- one years, renewable for ever on the terms mentioned in the lease, has a jus in re, and is liable for city taxes and assessments, as proprietor of the leased property. Such case is an alienation of the domaine utile, the Crown having only the domaine direct, and if made previous to 14 & 15 Vic. c. 128, is not affected by the powers conferred upon the Cor- poration of the city of Montreal by the 92nd section of their Act. Ex parte Harvey, S. C, 5 L. C. R., p. 378. Also Gould fy- Tlie Corporation of Montreal, Q. B., 3 L. C. J., p. 197. 13. Where a tenant admits a verbal lease, the lessor may prove the value and duration of the occupation. Viger and Belliceau, Q. B., 7 L. C. J., p. 199. " : — Vide Assessment. " : " ilYPOTHftQUE. « ; — « Opposition. Legacy:— 1. A clause in the will of a testator, that a usufruct bequeathed by him to his wife should cease, on her marriage, is not contra bows mores. When a tutor ad hoc is appointed LEG 173 Legacy : — ' to minors for the purpose of protecting their interest in a usufruct bequeathed to them, and he is sued relative to this usufruct, it is not necessary that a tutor ad hoc should be appointed expressly for the purposes of the suit. Forsyth fif- ed., vs. Williams Sf al., S. C, 1 L. C. R., p. 102. 2. A devise by the husband of the share of the commu- nauti belonging to his wife, under a condition to pay a life rent, is valid,, if she accepted of the condition annexed to such devise. Roy and Gagnon, Q. B., 3 L. C. R., p. 45. 3. A legacy from a father to a daughter, conditional on her not doing certain things, is forfeited by her doing them, and it is a fatal variance in a declaration to claim such legacy as an absolute one. Freligh vs. Seymour, S. C, 2 L. C. J., p. 91. 4. Where A. by his will bequeaths the interest of a capital sum to each of his daughters during their lifetime, and from and after the death of any one of them to her children, law- fully begotten, until the age of majority, and on attaining that age, " the principal to be paid to him, her or them, for his, her or their absolute use," subject to the proviso, that if any such daughters should die unmarried or without leaving lawful issue, the interest should be paid to the surviving daughters, and one of the daughters dies intestate, leaving a child who only survives her a few days, the legacy, in capital and interest, so bequeathed to such deceased daughter, becomes the property of the surviving husband. Reid and Prevost, Q. B., 1 L.'C. J., p. 320. 5. The terms " children still living," may comprehend the grand-children, descendants en ligne directe, of the testatrix, if such appears to have been the intention. Glackemeyer vs. The Mayor, SfC. of the City of Quebec and Lagueuz, S. C, 11 L. C. R., p. IS. But in a case of Martin and Lee, it was decided in the Q. B., — that a bequest " to all her children living at the time of her decease" did not include the grand- children of testatrix. 11 L. C. R., p. 84. 6. A legacy to a confessor is valid. Harper vs. BilodeaU, S. C, 11 L. C. R., p. 119. " : — Vide Corporation. ■ " Delivrance de Legs. • " Substitution. ■ " Will. Legatee : — 1. A party sued as universal legatee, for the recovery of a debt due by the testator, by the terms of the will it appear- ing that he is only a special legatee, will not be held liable, without due proof by plaintiff that the property bequeathed formed, in fact, the universality of the testator's estate ; and the production by plaintiff of an inventory of such estate, in which defendant is styled universal legatee, and in which no property and effects are mentioned other than those be- queathed to defendant, will not be held to be such proof, And parol evidence will not be admitted to prove a promise by the legatee to pay. McMartin vs. Gareau, S. C, 1 L; C. J.» p. 286. 174 LEG to L E S Legatee : — 2. Legatees cannot bring an action against a third party, charged by the universal legatee to pay them, for want of privity of contract. Rainsford fy al. vs. Clarice if al., 3 Rev. de Leg., p. 250. Legislative Assembly : — A person committed by the Legislative Assembly to the common jail, during pleasure, is discharged by a prorogation. Ex parte Monk, S. R., p. 120. Legislative Council : — The Legislative Council has a right toisora- mit for breach of privilege in cases of libel; and the Court will not notice any defect in the warrant of commitment for such an offence, after conviction. Daniel Tracy, S. R., p. 478. Legitime : — 1. Legitime cannot be claimed where the deceased has left a will. Quintin vs. Girard fy ux., S. C, 1 L.C. J., p. 163. Confirmed in Q. B., 2 L. C. J., p. 141 ; and 8 L.C. R., p. 3 17. 2. In an action for legitime, account must be taken of the charges to which the property given has been made subject. Lefebvre fy ux. vs. Boyer, Q. B., 1 L. C. J., p. 267. Lesion : — In an action by a minor to set aside a deed passed by him during his minority, he must prove the lesion as well as allege it. Metrisse . 361. 2. A motion lor a new trial, on the ground of misdirection, will be maintained, if it appear that the judge has not charged the jury respecting the imputation of payments. Tilstone if al. and Gibb ) Beaudry is . l'/iiiguet,G. Motidelet, J., decided that plaintiff might interrupt the jieremj>tion by any act of proi'eduie, prior t" judgment declaring the instance perimee. It was impossible to to liirtht t than this in the sumo diiec- tion, and in McDonald fy al. vs. Roy, decided 20lh September, 1859, Badgley, J., decided that between the giving notice ot motion and the actual maidng of motion, plaintiff might in- terrupt the peremption. It is evident that this case docs not go even so far as Dinning vs. Bates. The question however was not suffered to rest there, for on the 31st December, is confirmed by the cases reported since. 216 PER to PEW Peremption d'instance : — 12. Peremption d'instance has always been allowed with costs in the Superior Court in Montreal. Mongeon Sf ux. vs. Turenne, S. C, 1 L. C. J., p. 264 ; Chapman Sf al. vs. Aylen, lb. ; Gore Sf al. vs. Gugy, lb. But a different ruling has pre- vailed in Quebec. There the Court held, in the case of Fournier vs. The Quebec Fire Insurance Company, 6 L. C. R., p. 97, that in peremptions d'instance each party should pay his own costs. But the case of Gore Sf al. and Gugy having been taken to appeal, it was held in the Q. B. that in a suit perimie the plaintiff may be condemned to pay costs, which, are in the discretion of the Court, 8 L. C. R., p. 454. Also DeBleury vs. Gautier, S. C, 11 L. C. R., p. 494, it was held that costs will not be given where cause on affidavit is shewn for not awarding costs, and 5 L. C. J., p. 330. But in a case decided in the S. C. at Quebec, it was held that in cases where peremption d'instance is granted no costs will be awarded. Turner vs. Lomas, S. C, 10 L. C. R., p. 382. 13. An opposition is subject to peremption d'instance. Blackburn vs. Walker and Walker, opposant, S. C, 3 L. C. J., p. 195. But in exp. Robertson and Pollock Sf al., it was held that peremption will not be granted at the instance raised by an opposition to a ratification of title. S. C, 5 L. C. J., p. 150, and 11 L. C. R., p. 285. A defendant cannot have his default taken off in order to demand peremption of instance. Courville vs. Levar and Levar, S. C., 6 L. C. J., p. 256. 14. But where a defendant has appeared but filed no con- testation he may obtain peremption d'instance. McBean vs. Cvllin, S. C, 7 L. C. J., p. 117. Vide Hart vs. Valli 'res de St. Real, 2 Rev. de Leg., p. 319. Perishable Effects : — The Sheriff may be authorized to sell perish- able effects under seizure in his hands. Wurtele is. Verrault, 3 Rev. de Leg., p. 394. But in a more recent case of La- r, chelle vs. Piche and Piche, it was held, that the Court could not order perishable goods under "seizure to be sold pendente lite. S. C, 1 L. C. J., p. 158. Perjury : — A charge of perjury does not give a right to suspend the action, in which the perjury is alleged to have been com- mitted, until the criminal charge is settled. Fortier vs. Merrier, 3 Rev. de Leg., p. 363. " : — Vide J urors. Personal and Hypothecary- Actios : — Vide Prescription. Personal Damage : — Vide Damage. Personal Wrongs: — Vide Damage. Petition of Rights: — Vide Prescriptiqn. Petitory Action : — Vide Action PCtitoire. Pew : — 1. The eldest sen of the concessionnaire of a pew is entitled to have it, upon the marriage of his father's widow, at the price at which it may be adjudged to the highest bidder. Borne is. Wilson Sf al., S. R., p. 133. 2. Droits homnijiqucs, such as the use of a pew in a church, were oniy granted to seigniors in their quality ofhatttsjusn ticieis, as one of the attributes of the power they held and of tbe jurisdiction they exercised ; and by the effect of the conquest the jurisdiction which they exercised having ceased, PEW to PIL 217 Pew : — and their judicial power having become extinct, they have ceased to be entitled to those rights, and more particularly to pews in churches. Larue fy al. vs. La Fabrique de St. Pascal, 1 L. C. R., p. 175. But although the seignior is not now entitled to the free use of a pew in church as haut justicier, he may claim it as patron, if he has granted the land to build the church, and if he has a title to that effect, and the possession. The Cure and Marguilliers de la pa- roisse du Cap St. lgnace vs. Beaubien Sf al., 4 L. C. R., p. 321. 3. The covenant in the lease of a pew in a church, by which covenant it is agreed, that in default of payment of the rent to accrue at the period fixed by the law, such lease will immediately become null and void and of no effect, and that it will be lawful to the lessors, forthwith to take posses- sion of the pew leased, and to proceed to re-let the same, without being bound to give any notice thereof to the lessee, is not a covenant which will be regarded as a clause com- minaloire, but as a covenant the execution of which will be enforced. Richard and La Fabrique de Quebec, Q. B., 5 L. C. R.,p. 3. 4. The purposes for which a pew has been used, cannot be changed, without the consent, after deliberation, of the members of the Fabrique ; and the meeting to authorize the Fabrique to take steps to recover a pew illegally sold or granted, can be presided over by the Cure. Reid and La Fabrique de Chateauguay, Q. B., 6' L. C. R., p. 290. " -.— Vide Complainte. Pilotage: — Vide Privilege. Pilot: — 1. His lien on ship. Tlie Premier, V. A. C, .6 L. C. R., p. 493. 2. A pilot in charge of a vessel is entitled to remuneration • from the owner, in addition to the usual pilotage, for loss of time, and for services rendered in saving some of the spars and rigging of such vessel, carried away owing to the defective quality of the materials used. And where owner of .such vessel obtains indirectly the amount of such pilot's claim from the underwriters, the pilot will recover from the owner in an action for " work and labor and loss of time," although there be no count in the declaration for money had and received. Russell is. Parke, 8 L. C. R., p. 229. 3. A pilot is a mariner, and as such may sue for his pilotage in the Vice-Admiralty Court ; (see 2 Will. 4, c. 51,) p. 4, S. V. A. R. 4. A pilot who has the steering of a ship is liable to an action for an injury done by bis personal misconduct, although a superior officer be on board. The Sophia, p. 96.. S. V. A. R. Damages occasioned to the ship by the misconduct of the pilot may be set off against his claim for pilotage, lb. 5. In cases of pilotage, where there has been a previous judgment of the Trinity House upon the same cause of •demand, the Court has no jurisdiction. The Phabe, p. 59,_ S. V. A. R, 218 P I L to P L E Pilot : — 6. Persons acting as pilots are not to be remunerated as salvors. The Adventure, p. 101,S.V.A.R. Pilots may become entitled to extra pilotage, in the nature of salvage, for extraordinary services rendered by them. Ib. The jurisdiction of the Court is not ousted in relation ta claims of this nature by the Provisional Stat. 45 Geo. 3, c, 12, s. 12. lb. 7. Owners of vessels are not exempt from their legal responsibility, though their vessel was under the care and management of a pilot. The Cumberland, p. 75, S. V. A. R, 8. Exclusive duty of pilot in. charge is to direct the time and manner of bringing a vessel to anchor. The Lord John Russell, p. 190, S. V. A. R. Pilot having control of ship, not a competent witness for such ship without a release, lb. Ship held liable for collision notwithstanding there being a pilot on board, lb. 9. Having a pilot on board, and acting in conformity with his directions, does not discharge responsibility of owner. The Creole, note, p. 199, S. V. A. R. 10. A pension granted to decayed pilots, and to the widows and children of pilots, upon the funds established by the 45th Geo. Ill, c. 12, sec. 11, cannot be seized, Leliezre fy al. vs. Baillargeon, 3 L. C. R., p. 420. Pilot Acts : — The English cases by which the owners are exempted from responsibility where the fault is solely and exclusively that of the pilot, not shared in by the master or crew, are based upon the special provision of the English Pilotage Acts. The Cumberland, in note, p. 81, S. V. A. R. Construction of the Lower Canada Pilot Act, (45 Geo. 3, c. 12.) lb. Construction of the Liverpool Pilot Act. lb. Construction of the Pennsylvania Pilot Act, p. 179. lb. The provisions of the General Pilot Act of England, (6 Geo. 5, c. 125,) p. 82. lb. The whole of this Act is repealed by "The Merchant Shipping Repeal Act, 1854," (17 and 18 Vic. c. 100.) Limitation of the liability of owners where pilotage is compulsory, re-enacted by the " Merchant Shipping Act, 1854," (17 and 18 Vic. c 104, s. 388.) Applies to the United Kingdom only, p. 338. lb. Pleading and Practice: — 1. The signification given under the 3 Win. IV, c. 1, commonly called the Lessor and Lessees Act, should be given by the Sheriff of the district and not by a Bailiff. The writ may be in English. The Judicature Act 7 Vic. c. 16, has in no way modified this exceptional procedure. Befoy vs. Hart, 1 Rev. de Leg. p. 381. Guayvs. Lefebvre,ib. p. 384. Murphy vs. McGill, ib. 385. Marcoux vs. Bitner, ib. Glackmeyer vs. Bay, ib. p. 386. Plamondon vs. Far- quhar, ib. p. 387.* 2. The Court of Q. B. has jurisdiction in hypothecary actions under J610 sterling, notwithstanding the 4 Vic. c.20» * The Lessor and Lessees Act now in force is Cap. 48, C. S. L. C. PLE 219 Pleading and Practice : — Delery and Lemieux, 3 Rev. de Leg., p. 402. But District Courts established by 4 and 5 Vic. c. 20, (repealed,) had not jurisdiction in hypothecary actions. Talon vs. Cloutier, 3 Rev. de Leg., p. 405. 3. Under the 88 and 87 sections of the Statute of the 12 Vic. c. 38, sec. 87, [C. S. L. C, cap. 83, sec. 78,] it is suf- ficient in any pleading to allege the facts upon which the party means to rely in plain and concise language, to the intrepretation of which the rules of construction applicable to such language in the ordinary transactions of life may apply, and no special form of words is necessary to express the same. Halcro and Delesde?-nie/s,Q. B.,2 L. C. R., p. 325. " : — Action. — 1. A negatory action is a proper remedy for a party to take to have his lands declared free from municipal rates illegally imposed and to oblige councils to desist from the sale of his lands seized for such illegal rales. McBougall and the Corporation of the Parish of St. Ephrem d' Upton, Q. B., 5 L. C. J., p. 229. 2. In a petitory action claiming land under deed of the 21st January, 1856, defendant pleaded that he was in posses- sion for more than ten years previous thereto. By special answer the plaintiff set up anterior titles. It was held in the Queen's Bench, that the parties must be put out of Court each paying his own costs. — 1st. Because plaintiff had not proved the title set up in his declaration. — 2nd. Because defendant's plea set up no adverse title. — 3rd. Because the issue between the parties was ifVegular, and they ought not to have been permitted to go to evidence upon it. Osgood and Kellam, Q. B., 10 L. C. R., p. 22. And where a title has not been pleaded it cannot be produced at enquete, as a part of a chain of titles. Gibson and Wear,Q. B., 6 L. C. J., p. 78. And 12 L. C. R., p. 98. 3. The heir may proceed by the petitory action for the recovery of immovable property appertaining to the estate of his father and mother, even though such immovable pro- perty should be in the possession of a third party claiming- an undivided portion of the same, a titre de douaire, and it is not necessary that the heir should proceed by the action en partage. Cannon vs. CXeilet at., S. C, 1 L. C. R., p. 160. . 4. A plaintiff who has brought his action to oblige defen- dant to make an inventory, and to whom defendant makes answer that he has made one, cannot in the same action proceed to debattre such inventory. Bates vs. Foley, L. R., p. 108. 5. By one and the same action a plaintiff may claim dam- ages for slander and for personal wrongs. Paquet and Glo~ benski, Q. B., 6 L. C. R., p. 185. 6. In an action of damages, acts committed by a person in his private capacity cannot be joined to others committed in his capacity of Justice of the Peace. CNeil and Atwater, Q. B., 9 L. C. R., p. 442. 7. Where a statute limits the time of bringing an action against a custom-house officer to three months, the Court will allow a plaintiff, who has omitted an essential allegation in 220 p & E Pleading and Practice : — his declaration, to amend after three months have expired on payment of costs. Bressler vs. Bell, S. C, 4 L. C. R., p, 101. . 8. In an information at the suit of the Crown, for goods seized at the Custom House, the allegation ' that the goods sought to be forfeited, had been seized as haying been, im- ported into the Province without the duties being paid, &c, is insufficient, — there must be a substantive allegation that they were imported, and brought in, in violation of the Cus- tom House regulations. And the omission of the words " against the form of the statute," is fatal. The Solicitor General vs. Two casks of Planes and Barling, S. C, 2 L. C. R.,p. 20. 9. In an action of damages for assault and batteryy words in the declaration charging the defendant with a design to do grevious bodily harm to the plaintiff, do not necessarily constitute an accusation of felony. And even in case of the assault charged amounting to a felony, the plaintiff may pro- ceed in an action for damages without being first compelled to prosecute criminally for the assault of which he complains. Lamothe and Chevalier et al., Q. 15., 4 L. C. R., p 160. 10. An action of damages against several, charged with breach of contract to convey a raft, cannot be dismissed on a defense aufonds en droit, although by the conclusions it is prayed that the defendants may be condemned jointly and severally. Ranger vs. Checalier el al., S. C, 5 L. C. R., p. 180. 11. In an action by a Railway Company against a stock- holder for calls, it is sufficient for such company to state in the caption of the declaration that it is a body politic and corporate, without a specific allegation to that effect. 'The Saint Lawre?ice and Ottawa Railroad Company vs. Froihing- h'im et al., S. C, 5 L. C. R., p. HO. 12. In an action by a shareholder in the Grand Trunk Railway Company, against the Company for refusing to register a transfer of his shares, the allegations that the transferees had offered to surrender such transfer to the company and had demanded that the company should transfer the shares on their books, are insufficient to meet the requirements of the company's charter. Webster vs. Tlie Grand Trunk Railway Company of Canada, S. C, 2 L. C. J., p. 291. Reversed in appeal^ L. C. J., p.' 148. 13. In an action on a Policy of Insurance, in which there is a misdescription made by the agent of the insurers, it is not necessary in the declaration to set up the right description or the error alluded to. Somers vs. The Athenawn Insurance .Society, S. C, 3 L. C. J., p. 67. 14. An action against a husband and wife merely setting .up a debt due by the wife previous to her marriage, and the fact of the subsequent marriage, will be dismissed upon the wife pleading that she was sued as commune en Mens, whilst in reality she was sjtyaree, de biens by marriage contract produced. Gagnier vs. prettier et al., S. C, 6 L. C. R., p. 485. Also, Wheeler et al., vs. Burkitt et al., S. C, 4 L. C. J., p- 309. P L E 221 Pleading and Practice : — 15. In an action to compel the defendant to send back the plaintiff's wife alleged to have been enticed away and harboured by the defendant, her brother, it is no defence to set up the bad treatment, personal violence and threats to his wife after action brought, or a general allegation that the wife was obliged by the sevices of the plaintiff, to take refuge with her brother. C'aisse vs. Hervieux, S. C., 6 L. C. R., p. 73. 16. In an action for infringement of Patent for Lower Canada, the allegation of an infringement " in the county of Montreal," is sufficient indication of the place where the infringement took place. Prcwse vs. Panuelo, S. C, 2 L. C. R., p. 311. 17. A note payable to order, for value received, may be considered as a note in writing, and it is well described in declaration as a writing obligatory or bon. Hall vs. Brad- bury et al , 1 Rev. de Leg., p. 180. 18. An action against an endorser of a promissory note, payable in three months, setting up, by error, that the note was made on the 11th of July, instead of the 16th, and that it was protested on the 19th October, will be dismissed on demurrer, and the allegation that the endorser promised to pay after protest, will not covir the objection. Helliwell vs. Mullin, S. C, 5 L. C. J., p. 76. 19. A declaration which sets forth that " the defendants under the name of A. & Co., made their certain promissory note," it will be held good on demurrer, though it appears that the note was made by the wife doing business as A. & Co., and that the husband was there only to authorize his wife. Adams vs. Fleming% et al., S. C, 13 L. C. R., p. 78. 20. The conditions of an hypothecary action must demand that the land be sold in the ordinary course and not simply. Piatt et al., vs. Piatt et al., S. C, 1 L. C. J., p. 183. " : — Declaration. — 1. It is not necessary that the declaration annexed to the writ should contain the domicile and addition of the parties. Gugy and Donahue, Q. B., 11 L. C. R., p. 421. 2. An agent cannot sue in his own name, even where there is an express agreement with the defendant that the action shall be so brought. Nesbitt et al. vs. Turgeon et al., 2 Rev. de L6g., p. 43. But the cashier of a bank may sue in his own name to recover a sum due to the bank. Ferrie and. Thompson, 2 Rev. de L6g. p. 303. 3. The prayer of a declaration which claims a sum in figures, will be held bad on exception a la forme. Rivet vs. Poisson, S. C, 11 L. C. R., p. 493. 4. A declaration may be amended at any time on payment of 50s. costs, without prejudice to the evidence, and with power to defendant to replead within eight days, when it results from the proof that the allegations do not correspond with the facts proved. Boudreau vs. Lavender, S. C, 2 L. C. J., p. 194. 5. A plaintiff on being allowed to amend his declaration, after exception d la forme filed, must pay the full costs of the action up to that point. Boudreau vs. Richer, S. C, 6 222 p L E Pleading and Practice : — L. C. R., p. 474. And whenever the amendment is material after issue joined, he must pay full costs. Syme et al. vs. Howard, S. C, 6 L. C. J., p. 311. 6. A clerical error in a declaration may be amended at the final hearing on the merits. Hastie vs. Morland, S. C, 2 L. C. J., p. 277. 7. And so also it was held in the Q. B., that the Court would correct a clerical error. Bilodeau and Lefrangois, 12 L. C. R., p. 25. But a declaration cannot be amended by reason of a fact which has occurred since the institution of the action. Marsolais vs.Lesage, S. C, 1 L. C. J., p. 42, Nor will amendments to a declaration be permitted so as to change the nature of the action. Lambe and Mann et al., Q. B., 6 L. C. J., p. 287. 8. And by the practice of our Courts the plaintiff has always a right to plead de novo, to an amended declaration. Mann et al. vs. Lambe, S. C, 6 L. C. J., p. 301. But if the amendment be the correction of a mere clerical error which could mislead nobody, and the case be ex parte, the defend- ant will not get costs, nor will he be permitted to plead. Frothingham vs. Gilbert, S. C, 3 L. C. J., p. 136.* 9. A writ of summons may be amended as well as a declaration. The Banlcof British North America vs. Taylor, S. C, 1 L. C. R., p. 399. But a variance between a writ of summons and a copy, is a nullity, which cannot be amended without the consent of the defendant ; and in such case it is not necessary to inscrib : en faux against the bailiff's return. Theberge vs. Pattenaude, S. C, 2 L. C. R., p. 110. But in Blais vs. Lampson, it was held that the defendant not being properly summoned, the Court had no power or jurisdiction to permit the plaintiff to amend his writ. Blais and Lampson, S. C, 12 L. C. R., p. 23. 10. The return of the Sheriff may be amended. And where the return of the Sheriff has been so amended, as to render an opposition filed thereto useless, such opposition will be dismissed on motion, but without costs. The Trust and Loan Company of Upper Canada vs. Doyle and Stanley, S. C, 3 L. C. J., p. 138. And an error inadvertently made by the Sheriff may be amended. Molson et al. and Burroughs, Q. B., 9 L. C. R., p. 217, and 3 L. C. J., p. 220. 1 1 . A declaration and writ of summons filed in the Pro- thonotary's office, without a return of service, cannot support , a plea of litispendence in a suit and demand containing the same grounds and causes of action. And a party cannot complain of a judgment, dismissing, for reason of absence, a, plea by him filed, when the cause was called from the r61e, after the adjudication on an incident, which caused the hear- ing to be suspended, when the case was called a tour de rdle. Stephens et al. and Tidmarsh, Q. B., 6 L. C. R., p. 3. " : — Appearance. — Where the Court did not meet till 11p.m., on the 7th day of January, 1847, the day when the writ was returnable, although the defendant was called upon and failed to appear, the Court will not allow plaintiff to enter up * Also, Leverson et al. vs. Gunningliam, No. 363, S. C. M. P L E 223 Pleading and Practice : — default and proceed as in a case by default. The City Bank vs. Saurin, 2 Rev. de Leg., p. 48. " : — Preliminary Pleas.— 1. All preliminary pleas must be filed within four days after the return of the action. Cowan vs. Darling, L. R., p. 105. And a preliminary plea filed on the fifth day, the fourth clay being a Sunday, will be rejected on motion. Brock et al. vs. Th'berge, S. C, 9 L. C. R., p. 23 1. And where a motion has been made to quash a writ, which motion had been taken en delibere, and dismissed as not be- ing the proper mode of proceeding, after the four days, al- lowed by 16 Vic, c. 194, sec. 21, [C. S. L. C, cap. 83, sec. 12,] to file preliminary pleas, had expired, it was held that the defendant was precluded from filing an exception a la forme in effect .setting up the same matter as the motion. Macfarlane vs. Wbrrall, 4 L. C. R., p. 97, and L. R., p. 6. But the delay for filing an exception d la forme, when secu- rity for costs is demanded, will run from the day when such security is given. Smith vs. Merrill, 5 L. C. R., p. 199. And when a rule, staying all proceedings until plaintiff have put in security for costs, has been granted, and defendant has filed a preliminary plea, plaintiff will not be allowed to proceed to a hearing on such preliminary plea, until security has been given. Easton vs. Benson, S. C., 5 L. C. R., p. 342. And the four days delay to file preliminary pleas, do not run in vacation. Booth vs. The Montreal and Bytown Railway Company, S. C, 7 L. C. J., p. 296_. 2. A motion to reject an exception d la forme filed too late, will be granted after issue has been joined by mere lapse of time, in virtue of the 75th sect., cap. 83, C. S. L. C* McDonald et al. vs. Gamble, S'. C, 7 L. C. J., p. 77. 3. The exception of discussion is a dilatory plea. Noad et al., vs. Von Exeter, S. C, 5 L. C. J., p. 102. 4. The exception of discussion ought to be decided before the pleas to the merits. Cunningham et al., vs. Ferrie et al., 2 Rev. de. L6g., p. 169. 5. When a suit is pending in the Admiralty against cer- tain goods, seized as forfeited, and an action of trespass is brought against the seizors, for the illegal seizure of the goods, the defendants may, by an exception dilatoire, claim a stay of proceedings in the latter case, until the former is de- cided. Hartshorne et al., vs. Scott et al., P. R., p. 5. And there is no appeal from a judgment on an exception tending to obtain the suspension of procedings until a decision is rendered in another cause between the same parties, on similar matters. Vide Vbo. Appeal. 6. When an exception declinature has been filed requiring proof to support it, and plaintiff, instead of inscribing for en- quSte, inscribed for hearing on the merits of his exception, the exception will be dismissed for want of proof. Elliott vs. Bastien et al., S. C, 2 L. C. J., p. 202. 7. The inscription for hearing on the merits of an exception declinatoire, is regular where there is no answer or replication, the issue being complete without it. Richard vs. The Cham- plain and St. Lawrence Railroad, S. C, 6 L. C. R., p. 480. 224 PLE Pleading and Practice : 8. In the case of Jacques vs. Roy et ux, 2 Rev. de Leg., p. 38, it was held that the copy of an exception a la forme should he certified as a " true copy." But in the case of Dubord vs. Germain, 2 Rev. de Leg., p: 40, it was held that such certi- ficate was not necessary. 9. According to a fair interpretation of the 25th section of the 12 Vic. c. 38, [Con. St. L. C, cap. 83, sec. 13,] all pleas as well those to the form, as to the merits, should be filed at one and the same time, within the delay specified in that section of the statute. The British Fire and Life Assurance Company and McCuaig Sf al., Q. B., 1 L. C. R., p. 157. But notwithstanding this case, in Dube vs. Pioulx and Paquin fy al., 1 L. C. R., p. 364., the S. C. held that, under the 25th section of the 12 'Vice. 38, [Con. St. L. C, cap, 83, sec. 13,] an exception a la forme and an exception of payment cannot be joined and pleaded together at one and the same time.* 10. An affidavit in support of a motion for delay to plead, which sets forth that defendant must search for papers in several registry offices and that such search will occupy him six months, to the best of his belief, and that without such delay he will be unable to prepare his defence in a proper manner, will be sufficient. Bell 8f al. vs. KnoiuHon ^ al., S. C, 13 L. C. R., p. 232. 11. When a preliminary plea has been filed and ihe plain- tiff has demanded a plea to the merits, under the 72nd sec- tion of the 20th Vic. c. 44, [Con. Sts. L. C, c. 83, sec. 73,] the plaintiff may foreclose the defendant after the eighth day from such demand, without serving the demand of plea re- quired bv the 25th section of the 12 Vic. c. 38, [Con. St. L. C, c. 83, "sec. 13.] McGittts. Wells, S. C, 2 L. C. J., p. 290. 12. An exception a la forme filed on the grounds that in the copy of the writ served on the defendant, one of the plaintiffs was styled " Rickard " instead Of " Ricard," will be dismissed on motion. Latour Sf al. vs. Masson, S. C, 6 L. C. R., p. 483. 13. An exception a la forme in which it is alleged that the contents of a paper-writing, purporting to be a copy of a declaration, are different from the contents of the original declaration- and are disconnected, absurd, and unintelligible, is sufficient. Boutre vs. Tlie Montreal and Bytown Railway Company, S. C, 5 L. C. R., p. 98. 14. An exception to the effect that there are other heirs must contain the names and place of residence of such heirs, and state that they are alive. Page vs. Carpentierr, 3 Rev. de Leg., p. 395. 15. On the hearing of the merits of an exception d la forme, it was held that it was not necessary to sue out two original writs addressed to the bailiffs of different districts when it was known in which of two districts the defendants were, and that a writ addressed to "any of the bailiffs of the * In another case of Porter vs. Ferrier, decided in the Superior Court, on the 30th June, J 852, reported in the Montreal Gazette, on a motion by plaimift'to reject an exception a la forme which the defendant had filed conjointly with pleas to the merits, it was held that pleading to the merits was a waiver of objection to form. The Court further intimated that this opinion had been frequently expressed and that thei'e was a decision to the sameefleot in the L. C . R. And the motion to reject exception was therefore granted. PLE 225 Pleading and Practice : — Superior Court for the district of Montreal or Richelieu," is regular. Guevremont vs. Lamere,fds, if al., S. C, 5 L. C. J., p. 253. 16. Where defendant, a married woman, is described as being separated from her husband as to property, it is not necessary to attack the declaration on exception a la forme, it may be denied as a fact on the merits, and the plaintiff will be required to prove such allegation, if material, either by producing an antenuptial contract or a copy of a judgment of separation de biens. Wlieeler <£- al. vs. Burkitt &(■ al., S. C, 4 L. C. J., p. 309. Also, Gagnier vs. Crevier ,] Ihe opposition to a judgment rendered in vacation need not he accompanied with a deposit of the advocates fees. It is sufficient* to deposit the costs incurred from the return of the action exclusively, up to judgment. And the opposant is not obliged to furnish plaintiff with a copy of the affidavit. Ga.uthier rs. Marchand, S. C, 5 L. C. J., p. 101. 4. The contestation by opposant of opposition of another opposant, will not be dismissed on demurrer, although con- P L E 233 Pleading and Practice :— testation does not set forth any claim or privilege on the part of the contestant. Walker &■ al. vs. Ferns, S. C, 12 L. C. R., p. 406. 5. Any opposant may force an adjudicataire to deposit the price of his adjudication, although such opposant has no right to these moneys. Pacaud vs. Dubi, and the Syndics. 4-c, S. C, 7 L. C. J., p. 279. " : — Collocation. — 1. A contestation to two separate and distinct items of collocation in a report of distribution, interesting different parties, cannot be raised in one and the same paper, and copies must be served on the parties whose claims are contested. The eight days within which a contestation is required to be filed are not juridical days. Ex parte Burroughs, S. C, 2 L. C. R., p. 9. And in Desbarats vs. Lagrange and Fisher, S. C, L. R., p. 31, it was held that the contestation of an opposition and subsidiarily thereto, the contestation of the report of distribution cannot be made by one and the same pleading. But this was reversed in the Q. B., 4 L. C. R., p. 305. 2. The costs of distribution of money proceeds of the sale of immoveable property, are not distributed on each lot equally but according to the price of sale. Pacaud vs. Dube and the Syndics, . 235, in note, S. V. A. ft. Possession: — 1. The feigned or symbolical tradition may supply the actual tradition to enable a purchaser to maintain an action pMitoire, more particularly as respects wild lands. A mere natural possession, such as thatof a squatter, without title or color of title, raises no presumption of a right of pro- perty, and therefore it is necessary that a purchaser, claiming under a valid title, should rebut such possession by shewing a title in his vendor. Stvart and lves,Q. B., 1 L. C. R., p. 193. But in the case of sales of waste lands, tradition is necessary to convey the right of property, and when the purchaser, by private sale of such lands, does not take possession of the same, such lands may be legally seized and sold as belonging to the vendor ; and the new purchaser becomes seized of such lands to the exclusion of the pur- chaser, who has neglected to take possession . 2. A partition among co-heirs, duly homologated, is evidence against third parties, of the quality assumed by such heirs, and it is not necessary that certificates of baptism and of marriage should be produced. Mallory and Hart, Q. B., 2 L. C. R., p. 345. 3. An allegation of possession by a plaintiff, of the land claimed by him is sufficient, in an action of reintegrande without alleging a possession annate. Stuart vs. Langley et al., S. C, 1 L. C. R., p. 338. 4. The possession of a parcel of land required for a mill site, and once formally delivered, is not lost, and an adverse possession is not acquired by such parcel of land not being separated from the farm from which it is taken, and a trouble in the possession dates from (he time it is sought to appropriate it to such purpose as woulddeprive the purchaser •of the power of using it for the purposes for which it was acquired. Eltvin vs. Royslon, S. C., 4 L. C. J., p. 53. 5. No delivery is necessary to pass the property of goods sold at a judicial sale. Tacite reconduction in relation to moveables only arises when the lessor is a dealer and makes a business of letting moveables. Parties remaining in pos- session of moveables after the expiry of a lease, will be deemed to hold them as owners. Belt vs. Rigney et al. and Milne, S. C, 3 L. C. J., p. 122.* 6. The possession of moveables gives rise to a presumption of property therein, and therefore (except in cases of theft, violence and perhaps accidental loss,) the purchaser in good faith, in the usual course of trade, acquires the property of them, although they may have been sold by one who was not the owner thereof. Fawcett et al. and Thompson et al. R., p. 224. « -.— Vide Sale. u . — u Pleading and Practice. Prerogative: — Where the greater rights and prerogative of the Crown are in question, recourse must be had to the public law of the empire, by which alone they can be determined ; but when minor prerogatives and interest are in question, they will be regulated by the established law of the place where the demand is made. The King vs. Black, S. R., p. 324. « it a u 238 PRE Prescription: — 1. The prescription of six months under the 8 Vic. c. 25, s. 49, does not apply to actions for personal injuries. Marshal vs. The Grand Trunk Railway Company, S. C, 1 L. C. J., p. 6, and 5 L. C. R., p. 339. 2. The prescription of six months under the 16 Vic, c. 46, sec. 29, does not apply to actions for personal injuries. Germain vs. The Montreal and New York Railroad Company, S. C, 1 L. C. J.,p. 7, and 6 L. C. R., p. 172. 3. Damages claimed from Grand Trunk Railway Com- pany, by reason of the alleged negligence of their servants in destroying the rubbish collected on their line of railroad, being the final act of the construction of a portion of the line of railway, are subject to the prescription of six months, under the 8 Vic, c. 25, s. 49, and such prescription is avail- able to the company under the general issue. Boucherville vs. Tlie Grand Trunk Railway Company, S. C:, 1 L. C. J., 4. An action against a Justice of the Peace for false imprisonment, must, under the provisions of the 14 and 15 Vic, c. 54, sec. 8, [C. S. L. C, cap. 95, sect. 19,] be com- menced within six months after the act committed ; and the notice of such action is no commencement of the action. Lavoie vs. Gregoire, S. C, 9 L. C. R., p. 255. 5. In an action of damages for malicious arrest in a criminal prosecution, the absence of any allegation to the effect that the arrest was made without probable cause, is fatal to the declaration. Tuft vs. Irwin, S. C, 5 L. C. J., p. 340. 6. An action against the Corporation of Montreal for damages, resulting from the want of ffeaces and ditches, which the Corporation was bound to make under the act authorizing the construction of the- aqueduct for the Mont- real water works, is prescribed by the lapse of six months. Pigeon and the Mayor, tfC, of the City bf-Montreal, Q. B., 3 L. C. J., p. 294, and 9 L. q. R., p. 334. 7. The prescription of six months under the 126th article ■of the Coutume de Paris, and the prescription of a year under the 127th article, do not extend to farmers who raise what they sell. Gagne rs. Bonneau, P. R., p. 39. 8. Servants' wages are prescribed by one year. Bubin et ux, vs. Caron, 2 Rev. de Leg., p. 166. But in Glouteney vs. Lussier et al., S. C, 2 L. C. J., p. 185, and 8 L. C. R., p. "295, it was held that the prescription of a year under the 127th article of the coutume, only applies to wages or salary claimed by a servant who has ceased to be in the employ of f the master during one year. But this case was reversed in appeal, where it was held, that the action of servants for their wages is prescriptible by one year. Q. B., 3 L.C. J., p. 299, and 9 L. C. R., p. 433. 9. The prescription established by the article of the Coutume de Paris, does not apply to seamen's wages. Bar- beau vs. Grant, S. C, 4 L. C. J., p. 297. 10. The plea of prescription in an action for wages ought to be accompanied by a tender of defendant's oath as to payment, and by an averment that a book was kept in which the payments were duly entered. Hogan et al., vs. PRE 239 Prescription : — . Scott et al., S. C, 1 L. C. J., p. 83, and so also in Barbeau vs. Grant, S. C, 4 L. C. J., p. 297, in so far as regards tender of oath. 11. When prescription is pleaded under the 125th article of the coutume, the oath of the defendant may be demanded sur faits et articles. Buchanan et al., vs. Cormack, S. C, 1 L. C. J., p. 181.* 12. The action of teachers in public schools is prescribed by one year. La Corporation of the College of Ste. Anne vs. Tasehereau, 1 Rev. de Leg., p. 112. 13. The prescription of one year under the coutume does not affect deb's due to merchants, which are not barred by a less period than six years. Morrogh vs. Munn, S. R. p. 4-4. 14. Dixmes are not subject to the prescription of a year. Blanaket vs. Murtin etal., 3 Rev. de Leg., p. 73. And Brunei vs. Desjardins, S. C, 3 L. C. R., p. 81. .But in a later case Theberge vs. Vilbon, S. C, 3 L. C. R., p. 196, it was held, that the action for tithes is subject to the prescription of a year. But Vide Appendix Vbo. Dixmes. 15. In an action for damages by a tutrix to minors, in consequence of the death of their father, through the negli- gence of the defendant, the demand is subject to the pre- scription of one year. Filiatrault vs. The Grand Trunk Ratlioay Company of Canada, S. C, 2 L. C. J., p. 97. 16. In an action for slander. Vide Evidence No. 49. 17. The remuneration of Advocates and Attorneys is not prescribed by a lapse of two years. Andrews vs. Birch, I Rev. de Leg., p. 148. Also, Huot vs. Parent etal.,ib. p. 150. 18. The prescription of three years established by the Ordinance of 1510, declared by the 12 Vic. c. 44, [C. S. L. C.,cap. 82, sect. 34,] to form part of the Civil Law of Lower Canada, is not an absolute prescription, but merely a pre- sumption of payment ; and in pleading prescription, under the said Ordinance and Statute, it is necessary to plead payment and tender the oath. Scott fy al., vs. Stuart, S. C, 1 L. C. R.j p. 167. But in a more recent case of Lepailleur vs. Scott Sf al., it was held, that the prescriptions under the 12 Vic. c. 44, are an absolute bar to any action, and do not require to be supported by the tender of the oath of the party invoking them. S. C, 1 L. C. J., p. 275; and 6 L. C. R., p. 59. And in an action where such prescription is pleaded, it must be proved in support of the prescription, that final judgment was rendered in each and every cause, for more than three years, before the institution of the action. Peirault fy al. vs. Bacquet, S*. C, 1 L. C. R., p. 328. But in a case of Ross vs. Quinn, it was again held at Quebec, that prescription under the 12 Vic, c. 44, was not an absolute bar and that if the oath were not tendered by the plea that the plea would be dismissed on demurrer. Ross vs. Quinn, S. C, 11 L. C. R., p. 175. * The reporter properly observes that at the time of this action the 125th article of the Coutume had been repealed by the 10 and 11 Vic. c. 26, see. 16, [C. S. L. C, cap. 71, Sect. 15.1 But it is probable that the learned Judge in giving judgment, which turned upon, another point, intended the reservation " even if the 125th article were in force," it would not have altered the result. 240 PUE Prescription : — The prescription of three years, in cases of moveables, cannot be maintained without proof of good faith. Herbert and Farrell, Q.B., 7 L. C. J., p. 302. The knowledge of the party invoking such prescription that the person from wliom he claims to have acquired a moveable was not the owner thereof is evidence of bad faith, lb. 19. But it was also held at Quebec in the S. C, that the prescription of 5 years for the fees due a Physician under the 10 and 11 Vic. c. 26, sec. 16, [C. Sts. L. C., c. 71, sec. 15,] is an absolute bar. Bardy vs. Huot, 11 L. C. R., p. 200. 20. Arrears of house rent are liable to a prescription of five years. Sivjohn vs. Ross and Christipherson, S. C, 8 L. C. R., p. 509 ; and also Belisle vs. McGinnis, S. C, 4 L. C. J., p. 145. And so also for prixde bauz aferme. Dame Vinet vs. Gamin, 1 Rev. de Leg., p. 237. And the plea of prescription is an absolute bar to the action for rent. Laurent vs. Stevenson, 1 Rev. de Leg., p. 190. Also, Belisle vs. McGinnis, S. C, 4 L. C. J., p. 145. 21. The prescription of five years cannot be pleaded in a petitory action as an answer to a demand for rents, issues and profits. Lampson vs. Taylor &■ al. and Hughes St- al., S. C, 13 L. C. R., p. 154. 22. Prescription of five years is interrupted by the defendant's having said within five years immediately preceding the action, upon being asked for payment, that he believed he had a larger account against plaintiff. Belisle vs. McGinnis, S. C, 4 L. C. J., p. 145. 23. No prescription exists as to promissory notes due and payable more than five years before the coming into force of the Act 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31.] Wing vs. Wing, 4 L. C. R., p. 261. And in Macfarlane vs. Rutherford, L. R., p. 11, it was held that the 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31,] is not a bar within five years after its coming into force, to the recovery of notes matured previous to that act taking effect. But in an action for the recovery of the amount due on a promissory note made in 1824, brought in December, 1853, the plea that at the time of the institution of the said action more than five years had eiapsed since the said note became due, and that therefore, the said note must be taken and considered to be paid and discharged is a good plea under the 12 Vic. .c. 22, [C. Sts. L. C, cap. 64, sect. 31.] Hoyle and Torrance Sf al., Q. B., 7 L. C. R., p. 312. And in the case of Lavoie vs. Crevier, Q. B., 9 L. C. R., p. 418, it was held, that the prescription of five years, established by the Act of 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31,] is applicable to non- negotiable notes previously made, and that it is not necessary to prove payment by oath. In Cdti if al. vs. Morrison, S. C, 2 L. C. J., p. 206, it was held that prescription of five years, under the 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31,] applies to a note due before the passing of that Statute, and on which no action is brought within five years after it came into force. Also, 8 L. C. R., p. 252. 24. And the prescription of five years against a promissory note acquired before the coming into force of the Statute PRE 241 Prescription : — of the 12 Vic, c. 22, may be pleaded to an action for the recovery of such note, notwithstanding the repeal of the 34 Gep. Ill, c. 2, under whlfch the said prescription has been acquired. Glackemeyer et al., and Pemult, Q. B., 4 L. C. R., p. 897.. " 25. A promissory note made en brevet is prescriptible by five years. Crevier vs. Sauriole dit Sansouci, S. C, G L. C. J., p. 257. But in Gravelle vs. Beaudoin, it was held that such a note was not prescriptible by five years. C. C, 8 L. C. J., p. 289. And so also in Lacoste vs. Chauvin, S. C., 7L. C. J., p. 339. 26. An action on a promissory note, in which are included general counts for goods sold and delivered, will not be dismissed on a plea of prescription ©f five years, if on the general counts, the original consideration be proved, and in such case an unpaid promissory note is not payment. Beau- doin vs. Dalmasse, S. C, 7 L. C. R., p. 47. 27. A promissory note payable on demand is due from the day of its date, and prescription runs against it from that time. Larocque et al.,vs. Andres et al., S. C, 2 L. C. R., p. 335. 28. The interruption of prescription of a note will be considered proved by the production of a letter from defendant making reference to a note of his, without specifying it particularly, if no evidence to the contrary be adduced, to the effect, that the letter had reference to some other note. Thompson vs. McLeod, S. C, 1 L. C. J., p. 155. 29. Payment on account of a promissory note within five years, interrupts the Statutory prescription, notwithstanding no action brought within that period. Torrance vs. Philbin, S. C, 4 L. C. J., p. 287. And so also it was held in Ben- jamin et al., vs. Duchesnay et vir, that under the Statute of Limitations, partial payments on an open account interrupt prescription. S. C.,.5 L. C. J., p. 168.» A letter acknowledging the receipt of a sum of money as a loan, and promising to repay it on demand, with interest, > is not a promissory note within the meaning of the Statute 12 Vic. cap. 22, sec. 31, [C. S. L. C, cap. 64, sect. 31.] And in an action on such letter described as a writing sous seing prive, the prescription of five years under the said Statute does not apply. Whishaw vs. Gilmour et al., S. C, 6 L. C. J., p. 319. And 13 L. C. R., p. 94. 30. Prescription of six years under the 10th & 11th Vic, c. 11, [Con. St. L. C, cap. 67,] is applicable to the action of a purser of a steamboat for wages, and such plea is not waived by pleas of payment and compensation. Strother vs. Tor- rance, S. C, 2 L. C. J., p. 163, and 8 L. C. R., p. 302. 3 1 . A claim for medical attendance is not liable to the prescription of six years, under the 10th & 11th Vic, c. 11, [Con. St. L. C, cap. 67.] Buchanan 8f al. vs. Cormach, S. C, 1 L. C. J.,p. 181. 32. In the case of Asselin vs. Monjeau, it was held that there is no prescription of six years for money lent between parties who are not traders. 5 L. C. J., p. 26. Or by a non-trader to a' commercial firm. Whishaw vs. Gilmour, S. C, 6 L. C. J., p. 319. 16 242 PRE Prescription : — 33. The prescription of six years may be invoked in an action for goods sold and delivered between parties traders. Molson Sf al. and Walntsley, 5 L. C. J., p. 26, 34. The prescription of ten years does not run during the minority of the party to whom it is opposed. Deioyau vs. Watson Sf al., Q. B., 2 L. C. J., p. 137. Nor until dower is open ; and so he who acquires an immoveable property burthened with customary dower requires a prescription of ten years to purge the dower, dating from the death of the father and mother of the heirs. Bisson Sf al. vs. Michaud Sf al., S. C, 12 L. C. R., p. 214. And payment to one of them under a judgment does not interrupt the prescription as to the others, lb. 35. In an hypothecary action, the prescription of ten years will be available although the party against whom it is pleaded resides in the district of Quebec, and the property be situated in the district of Montreal. Stuart and Blair, Q. B., 2 L. C. J., p. 123, and 6 L. C. R, p. 433. 36. The burthen of proof falls on the party pleading the prescription of ten years. Lina Sf al. vs. Boyer, S. C, 1 L. C. R.,p. 139.* 37. In an action en rescision, which was met by a plea of prescription, the answer that the dol only became known within 10 years, is good. Picault vs. Demers, S. C, 2 L. C. J., p. 207. And so also in an action for-slander, the plea that the slanderous expression only became known to plaintiffs within a year and a day before the commencement of .the action, is sufficient. Ferguson and Gilmour, Q. B-, 1 L. C. J., p. 131. 38. Proof of a thirty years possession, dispenses, the party proving it, from the necessity of shewing that he possessed anirno domini or de bonne foi, until the contrary be proved by the plaintiff. 2 he Seminary of Quebec vs. Patterson, S. R., p. 146. ?- q . If property is claimed under a prescription of 30 years possession of the. claimant &n& his auteurs, the names of such auteurs must be given. Lampson and Taylor Sf al., and Hughes Sf al., S. C, 13 L. C. R., p. 154. 40. But it was held in the Superior Court that in opposing the prescription of 30 years, the holder might plead the prescription of those who were not his auteurs ; but the Court of Appeals held the contrary. Stoddard Sf al. and Lefebwe, -Q. B, 13 L. C. R., p. 481. . 41 Th" Crown may acquire property in Canada, by pie- scription oi* thirt y y ears alld u P wards > and the real ° wner f 3 kv interrupted such prescription by a petition of Sts a ™Lh„ as applicable in the colony as in the mother Sfur&v 7ft " land which had been acquired and used for thl'^f °r ^ country for upwards of thirty years canno'h^H UCe ?{ tu petitory action ; it had ceased to be cannot be claimed by a f , fiu Principal Officers of Her in rommercio Laporte an. T)> c . E . ; f .\ S S. Majesty's Ordnance, Q. B., 7 i_ — ■ " — : — ' -scriplion must show that it applies * That is to say, the party pleading the ten years on 'hat one of them was absent, and to him. In the present ■ a-e plaintiffs pleaded specially. . .■*! this allegation. But clearly Vanfetson, J., ■iis.-t-niing-, held ihiit plaintiffs should hare prov ^g but the general answer. they were not so obliged, as ihey were not bound to plead any u PRE to P R I 243 ^Prescription : — 42. An hypothecary action joined to a personal one, is prescribed by a lapse of thirty years. Delard vs. Pare &• ux., S. a, 1 L. C. J., p. 271. 43. The arrears of a constituted rent for the alienation and the price of an immoveable are only prescriptible by thirty years. Turcotle ts. Papans.Sf ux., 7 L. C. J., p. 272. 44. To acquire a title by prescription 'there must be an actual physical possession. Stuart &• al., vs. Bowman, S. C, 2 L. C. R., p. 369. 45. Prior to the passing of the 4th Vic. c. 30, Sect. 16, [Con. St. L. C, c. 37, s. 37,] arrears of interest upon the price of immoveable property sold were only prescribed by thirty years and not by five years. Brown vs. Clarke and Montizambert, S. C, 10 L. C. R., p. 379. 46. Prescription is not interrupted by admissions in an action which, though contested, was afterwards perimie. Malo vs. CTHeir, S. C, 7 L. C. J., p. 79. 47. The prescription of the matrimonial rights of the wife, does not run during the marriage and while she is in the power of the husband. Gauthier vsi' Meneclier de Morochon, Si C, 7 L. C. J., p. 320. ' 48. Interruption of. Vide Mire vs. Litourneau, S. C, L. R., p. 28. 49. Prescription of penal actions. — Vide Partnership. " : — Vide" Promissory Note. " : — " Registration.. Presents : — Vide Prescription. Presumption: — 1. The rights of co-vendors selling in different qua- lities will not be presumed. Holland vs.'Thibaudeau, S. C, 4 L. C. R., p. 121, 2. Where a ship at anchor is run down by another vessel under sail, the presumption is that the latter vessel is in fault, The Miramichi,^. 240, S. V. A. R. 3. If the protest be not produced, salvors are entitled to the inference that it is withheld because it would be too favorable to them. The Electric, p. 333, S. V. A. R. Preuve : — Vide Evidence. Preuve avant faire droit: — Vide Perrault vs Malo, S. C, 11 L. C. R., p. 81. Priest: — Vide Marriage. Primogeniture : — Vide Droit d'ainesse . « , u Heirs. « . a Improvements. Primrose, (Hon. Francis Ward):— Was appointed Deputy Judge Surrogate and Commissary of the Vice- Admiralty Court for Lower Canada, by an instrument under the hand and seal of the Hon. James Kerr, Judge thereof, on his being about to proceed to England, dated the 30th of August, 1833. Dis- charged the duties of judge from that time until the removal of Mr. Kerr, in October 1834. Continued afterwards to do so, under the authority of the Imperial Act, (56 Geo. HI., c. 82,) to ~ render valid the judicial a : 6ts of Surrogate's of Vice-Ad- miralty Courts abroad, during vacancies in the office of 16 » 244 P R I to PRO Primrose, (Hon. Francis Ward) :— Judges of such Court,— down to the time of the appointment of Mr. Kerr's successor, on the 21st of September, 1836.. Vide cases of The John and Mary and The LoMon. Principal and Agent: — Vide Agent. Privilege :■— A conventional privilege on moveables will be restrained within the precise limits of the agreement creating it. Whit- ney vs. Craig, and Craig and Whitney, S. C, 1 L. C. J., p. 97. Privileged Communication: — 1. A privileged communication can- not be made the subject matter of an action of damages for verbal slander, and such is a communication made by an em- ployer, in his own private office, to one of his clerks, regard- ing the conduct or character of a party in connexion with her relations to another of the employer's clerks. Ferguson and Gilmour, Q. B. 1 L. C. J., p. 131. 2. The private bank account of a party in any cause may be shewn, where it is established that money at issue in the cause has been lodged by the party at the bankers to the credit of his private account. Mackenzie vs Taylor, S. C, 6 L. C. J.,p. 83*. 3. A state paper is a privileged communication which the Provincial Secretary may refuse to produce. Gugy and Maguire, Q. B., 12 L. C. R., p. 33. Privileged Costs : — Vide Hypotheque. v " " :— " Costs. Privity op Contract: — 1. Where a third person promises to one of the parties to a contract that he will^assume it, that promise can only be binding upon him to whom the promise was made ; and a contract to deliver to certain persons all the malt they may want for their brewery, can only be binding so long as malt may be required for the brewery, and there- fore the insolvency of such persons, and the ceasing to em- ploy the brewery terminated the contract, and no damages can be claimed upou the ground of subsequent non-performance. Oakley vs. Morrogh and Dunn, P. R., p. 74. 2. In a hypothecary action against the defendant as diten- teur actuel of a lot of land sold by the plaintiff to C, defen- dant cannot set up a judgment obtained by his auteur C, against himself as settling the indebtedness of the land towards plaintiff, such judgment being res inter alios acta. Katham and Dunn, Q. B., 12 L. C. R., p. 85. And defen- dant can only impute an amount collected out of the estate of C. on a judgment rendered in 1849 in favour of plaintiff, from the time of the payment, that is to say, 1858. lb. " : — Vide Donation. " : — Legatee. " : — Sheriff. Privy Council: — Vide Appeal. Probate : — Vide Will. Probatory Term : — Vide Pleading and Practice. Procedure : — Vide Pleading and Practice. Proctor : — A settlement without the concurrence or knowledge of the promoter's proctor, does not bar the claim for costs ; and the Court will inquire whether the arrangement was or was not reasonable and just, and relieve the proctor if it were not. The Thetis, p. 363, S. V. A. R. P R o 245 Prohibition : — A writ of prohibition ought to be granted as of right whenever a Commissioners' Court has exceeded its jurisdic- tion. . Ex parte Burke, S. C, 7 L. C.-R., p. 403. ." : — Vide Vice-Admiralty. Prohibition to Alienate :— < In a deed of gift' the prohibition to alienate in the following terms is obligatory : — ." This donation made upon the express condition, that the lands given shall remain propres to the donee and to his immediate heirs, de son coti et estoc, without the power of either selling or mort- gaging the same." And in such a case the hypothecs granted by the donee are null. Fafardvs. Belanger, S. C.,4 L. C. R., p. 215. Also, Bourassa and Bedard, Q. B., 13 L. C. R., p. 251, and 7 L. C. J., p. 158. And where such a donation has been made, a bequest by the donee, deceased during the lifetime of the donor, to his wife of the immoveable, is null. lb. 2. And so also it is held where moveables have been sold subject to the condition that the purchaser should not sell them. Lynch and Hainault, Q. B., 5 L. C. J., p. 306. 3. The prohibition to alienate contained in a will, whereby it is provided that the legatees, children of the testator, should in no manner charge, incumber, hypothecate, sell, barter or otherwise alienate the real estate to them be- queathed until the expiration of twenty-years after the decease of the testator, is valid, and is neither impossible nor prohibited by law, nor is it contra bonos mores. Guillet dit Tourangeau and Renaud, Q. B., 13 L. C. R., p. 278 and p. 350. Promesse de Vente : — Gaulin and ux. vs. Pichetle et al., 3 Rev. de Leg., p. 261. Tide Sale. Promissory Note : — 1. Verbal notice of protest is insufficient to bind endorser. Cowan vs. Turgeon, 1 Rev. de Leg., p. 230. 2. In order to vitiate the payment by the maker of a pro- missory note endorsed in blank, bad Jaith must be shewn ; payment under circumstances of suspicion is not enough. The maker is only bound to assure himself of the genuine- ness of the signatures, and is not bound to make any enquiry. Ferrie vs. Wardens of the House of Industry, 1 Rev. de Leg., p. 27. 3. A promissory note signed by a cross in presence of one witness is good. Collins vs. Bradsliaw, C. C, 10 L. C. R., p. 366. And an endorsement by cross before one witness is valid. Noad vs. ChateauveH et al., 1 Rev. de Leg., p. 229. 4>. An I. O. U. is a promissory note, and is negotiable as a note payable to bearer. Beaudry vs. Laflamme and Davis, S. C.,6 L. C. J., p. 307. 5. A promissory note made en brevet before notaries, payable to order, is negotiable by endorsement in the ordinary way. Morinvs. Legault dit Deslauriers, 3 L. C. J., p. 55. 6. A promissory note may be made en brevet in the actual presence of one notary ; it may be countersigned out of the presence of the parties. Dalpe dit Pariseau vs. Pellelier dit Bellefleur, S. C, 5 L. C. J., p. 77. 7. An insurance note is not a promissory note falling within the commercial code. The endorser is an ordinary caution solidaire. Montreal Mutual Assurance Company vs. Dufresne, S. C, L. R., p. 55. 246 PRO' Promissory Note : — . 8... Where agent of Railway Company had given his own; notes to an Insurance Company for premiums of Insurance on iron, belonging to Railway Company, Company is never- theless liable in direct action for amount of premiums ; and renewal notes given by firm of which agent was partner will be declared inoperative against such firm. The Montreal Fire Insurance Company vs. The Stanstead, Shefford and Chambly Railway Company, S. C, 13 L. C. R., p. 233. 9. Tn Wood Sf al. vs. Shaw, S. C, 3 L.. C. J., p. 169, it was held, that a promissory note payable to the order of an insurance company, and given in payment of a premium of insurance is negotiable, and a memorandum .at its foot, indicating its consideration, does not limit its negotiability. The indorsement of such note by the Secretary of the Com- pany, in that capacity, was sufficient to pass the title of the note to plaintiffs,— an implied authority in him so to do, having been shown by proof of the ordinary course of business of the Company,— that the Directors had effected the arrangement with the plaintiffs of which the transfer of the note formed part, — and that the Company had received the consideration for such transfer. 10. An exchange of negotiable paper is sufficient to con- stitute each party to such exchange, a holder for value of the paper he receives, lb. 1 1. A wife signing a promissory note with her husband, a trader, although the note does not purport to be made, joanlly and severally, becomes the caution solidaire of- her husband, to the extent of the note. Pozer vs. Green, 1 Rev. de Leg., p. 186. 12. A promissory note made by a married woman separee de Mens el marchande publique, without the authority of her husband is good. Beaubien and Husson, Q. B., 12 L. C. R., p. 47. 13. And both husband and wife separee de biens are jointly and severally, liable for a joint note made in the course of a business in which they were both jointly interested. Girouard vs. Lachapelle et vir., C. C, 7 L. C. J., p. 289. 14. A promissory note made by a wife, separated as to property from her husband, in favor of her husband, and endorsed by him, for groceries and other necessaries of family use purchased by her, is valid. Cholet vs. Duplessis Sf al., S. C, 6 L. C. J., p. 81. And this without proof of express authority to her to sign the same. 12 L. C. R., p. 303. 15. A promissory note may be made on Sunday. Kearney vs. Kinch cj- ah, S. C, 7 L. C. J., p. 31. But in Cote vs. Lemieux, S. C, 9 L. C. R., p. 221, it was held that a pro- missory note made on Sunday and given in payment of a horse purchased on (he same dav, is null and void under the 45 Geo. III., c. 10, and 18 Vic. c. 117, [C. Sts. L. C, c. 23.] 16. A note of hand subscribed with the mark only of the drawer, endorsed over, gives no action to the endorser against the drawer, but the endorser on his endorsement is liable to the endorsee as for moneys had and received. Jones vs.. Hart, 2 Rev. de LGg., p. 58. PjtO 247 Promissory Note : — ■ 17. In an action of assumpsit by the endorsee against the endorser upon a note endorsed for a sum less than that made payable by the note, the plaintiff cannot recover. McLeod vs. Meek, S. R., p. 456. 18. '1 lie endorsee and holder of a promissory note for the purpose of collection, may recover against the maker and previous endorser. Mills vs. Philbin >' > ' 2. In an action of damages arising from a railway accident, which ' resulted in the death of a party, and the! destruction RAi 255 Railway cases : — of his horse and waggon, no damages will be allowed beyond the value of such horse and waggon, unless there be specific proof of the value of the party's life to his family. Ravary vs. The Grand Trunk Railway Gpmpany of Canada, S. C, 1 L. C. J., p. 280. 3. The breaking of a bolt, whereby the rear wheels of a railway carriage were separated from the carriage, which was thrown off the track, is sufficient- evidence of negligence and the insufficiency of the car conveying passengers, — the train having first left the station, and proceeding at the raje of five miles an hour, and there being no obstruction on the track, and nothing out of the usual course of things to account otherwise for the breaking of the bolt, notwith- standing evidence by the servants of the company that the carriage had been examined and that no indication presented itself to the eye of any defect either in the bolt or carriage. And the plaintiff being a laborer in the service of the com- pany, and paying nothing for his fare, does not alter the case. Germain vs. The Montreal and New York Railroad Gompjny, S. C., 6 L. C. R., p. 172. 4. The capital of the indemnity paid into Court on the expropriation by a railway company of land included in a bail emphyteotique, is to be awarded to the lessee on giving security in preference to, the lessor. The lessee under a bail emphyteotique is proprietor of the land leased, and he is not obliged to be content with the interest of moneys deposited. Ex parte The Grand Trunk Raihoay Company' of Canada, S. C, 6 L. C. R., p. 54. 5. Service of process against the Grand Trunk Railway Company of Canada, at one of its stations, is insufficient ; such service ought to be made at its principal place of business. Legendre vs. The Grand Trunk Railway Company of Canada, S. C, 6 L. C. R., p. 105. 6. Under a clause in an agreement between a contractor and a railroad company, the contractor was allowed to collect, for his own benefit and profit, arrears due by certain stock- holders for the price of their stock, to a certain specified amount. Held that the stockholders cannot be sued in the name of the contractor, and that the company is not liable to warrant or defend such contractor against a plea by a stockholder, alleging facts to shew that he was not indebted to the Company. White vs. Bpiy ; also, White vs. The In- dustry Village and Rawdon Railroad Company, S. C, 7 L. C. R., p. 360. 7. Under the statute of incorporation of the Grand Trunk Railway Company, the Province of Canada had the first hypothec upon the road for .£3,111,500 sterling, and the first preference bondholders are subrogated in that right to the extent of £2,000,000, nevertheless the Court will not declare the road to be so hypothecated. Tfie law regarding the sequestration of property does not extend to the judicial sequestration of the property of bodies corporate ; and so the Court has no power to appoint a sequestre or receiver to the Grand Trunk Railway. Morrison vs. The Grand Trunk Railway Company of Canada, S. C, 5 L. C. J., 313. 256 R A I to RAT Railway cases : — 8. An action of damages alleged to have been suffered by the plaintiff by reason of the construction of a railway over his property, must be directed against the company building such railway, and not against the contractors of the works, unless by their misfeasance they have rendered themselves personally liable. Jackson &• al. and Paquet,, Q. B., 4 L. C. R.,p. 4 99. : — Vide Arbitration. " Contractors. " Damages. " Mandamus. " Main-morte. ■ " Prescription. Ratification of Title:— 1. The proceedings for ratification of title according to the dispositions of the 9 Geo IV., c. 20, [Con. Stat. L. C, cap. 36,J is not in any way analogous to that which was followed in France under the edict of 1771. The object of the statute is only to discover and make known hypotheques, by preserving them on the real property, while the Edict of 1771, was for the purpose of purging them, and was so far equal to a. decret. According to our system the opposing creditors have not an absolute right to cause the price to be deposited, and to demand that, in default of peti- tioner doing so, he may be declared subject to contrainte par corps. Douglas vs. Bupri, 2 Rev. de Leg., p. 229. 2. But in Glackemeyer vs. The Mayor, fyc, of the City of Quebec, S. C, 11 L. C. R., p. 18, it was held, that the only effect of judgments of confirmation of title is to do away with mortgages, without in any manner fortifying the title deed, the ratification of which is demanded ; which deed, notwith- standing such ratification, remains with all its imperfections. 3. The petitioner for ratification of title may desist from his proceeding en tout etat de cause. Ex parte Cliabot and divers opposants, 1 Rev de Leg., p. 224. 4. Simple chirography creditors cannot oppose sentence of ratification of title. Ex parte Harbour Commissioners and Fisher, S. C, L. R., p. 84. 5. The hypothecary creditor indicated in the deed of sale is not bound to file an opposition afin de conserver to the proceedings in ratification of title. Such an opposition will be maintained but without costs. Ex parte Lenoir and La- mothe $ al., S. C, 3 L. C. J., p. 303. The parties interested in the contestation or issue joined on a ratification of title, are alone to be made parties to an appeal. In a demand for ratification of a deed of sale of several lots of ground (affected with distinct charges and mortgages for one price,) the hypothecary creditors cannot be foreclosed from over-bidding until the price of each lot has been deter- mined by a ventilation, and the petitioner cannot obtain the ratification of title, until such ventilation has taken place. This ventilation must be homologated by the court before the moneys deposited can be distributed. Demit and Bur- roughs, S. C., 5 L. C. R., p. 70. RAT 257 Ratification of Title : — 6. The lengthy contestations arising out of the overbid made to the price of sale by an opposing creditor to the pro- ceedings for a ratification, and the delays consequent upon the contestations of oppositions, have not the effect of dis- charging the purchaser from the payment of interest upon the purchase money, which interest becomes payable after the lapse of the four months for giving the public notice ne- cessary for obtaining letters of ratification, and which in- terest he is only bound to pay up to the day of the payment of the money into Court, although at that period the contes- tations had not been disposed of. The omission of some of the formalities,. required by the Provincial Statute of the 9 Geo. IV., c. 20, [Con. Stat. L. C.,cap. 36,] to be admitted to over- bid upon the price of sale, does not entail nulity of the pro- ceedings. Ruston and Bla ichard, S. C, 5 L. C. R., p. 390. 7. The vendor who covenants that the purchaser shall obtain a ratification of title, before making payment, becomes thereby a party to the proceeding for ratification, and conse- quently the purchaser is not bound to call in the vendor en garantie to give an opportunity of contesting claims filed in the proceedings. lb. 8. A purchaser seeking for ratification of title must deposit the price if the opposing creditors require it. Exp. Cantin, 1 Rev. de Leg., p. 42. 9. In cases of demand of letters of ratification of title, the action en garantie lies to remove opposition, unless an express stipulation to the contrary be inserted in the deed of sale. Douglas and Binning, Q B., 8 L. C. R., p. 501. 10. An opposition to an application for ratification of title, not containing any engagement on the part of the vendor to obtain, such ratification, or on its being asked for by the vendee to cause all opposition to be removed amounts in law to a trouble, and entitles the applicant to sue his vendor en garantie to -compel him to intervene and hold him harmless from such opposition. Ex parte Judah and Jadah, plaintiff en garantie, and Rolland, S. C, 1 L. C. J., p. 194. And again in the case of Douglas and Dinning, Q. B., 3 L. C. J., p. 33, it was held that a new proprietor who is troubled in his demand in ratification of title, is well founded in bringing an action en garantie against his vendor. And the purchaser is not obliged to deposit the interest of the price of his acquisition in order to obtain a sentence of ratification of title and to purge the hypotheques affecting the property. Ex parte Hart, S. C, 3 L. C. J., p. 40; also 9 L. C. R., p. 310. And a temporary exception peremptoire en droit to an action for the recovery of a price of sale, setting forth the existence of a mortgage on the property sold, and the filing of an opposition to letters of ratification is a good plea. O' Sullivan vs. Murphy, S. C, 7 L. C. R., p. 424. 11. When the registrar's certificate discloses hypothecs existing on the land referred to in a petition for confirma- tion of title* a motion by an intervening party, praying to be allowed to file discharges, and that the hypothecs be de- clared to be satisfied, cannot be granted. Ex parte Robinson, S. C, 12 L. C. R., p. 431. 17 258 RAT to EEC Ratification of Title: — 12. Effect of bankruptcy Grd. on lands hypothecated. Exp- Chabot, 1 Rev. de Leg., p. 265. " : — Vi4e Insinuation. Ratification : — Vide Letter of Attorney. Rebellion a Justice : — 1; In the case of a saisie execution, where a defendant is outside his dwelling house, the door of which is locked, and within which are his wife and family, who are visible from the outside, and who neglect to open the door, on being called on by the bailiff to do so, the statement by such defendant to the bailiff that he cannot open the door, amounts to a refusal to dp so. Kemp vs. Kemp, S. 4 C., 2 L. C. J., p. 279. But the neglect of a defendant to open the door of his dwelling house, under the circumstances above described, does not amount to a rebellion a justice. Kempvs* Kemp, 8. C, 2 L. C. J., p. 280. 2. No mitigating circumstances can prevent the issuing of a contrainte par carps in the case of a rebellion a justice. Campbell Sf-'al. vs. Beattip, S. C.,3 L. C. J., p. 118. 3. It is no rebellion a justice to refuse to allow a bailiff to enter to make the sale of goods seized under an execution which had been allowed to lie dormant for more than two- months. Scholefield &■ al. vs. Rodden A- al., S. C, 5 L. C. J., p. 332. Receipt by Cross : — Vide Cross, — Evidence. Receipt in full : — 1 . A receipt in full is not taken as conclusive in this Court, but is open to explanation, and upon satisfactory evidence may be restrained in its operation. The Sophia, p. 219, S. V. A. R. 2. When receipts and discharges of claims are given by the crew of a vessel, they are not to be taken in the Admi- ralty as conclusive ; and where the settlements and receipts are made under undue and oppressive influence, and with- out free consent, they ought not to bar an equitable claim for compensation beyond what the crew have received. The Jane, p. 256, S. V. A. R. 3. In actions by seamen for wages the Covxt will not of course sanction settlements made with parties out of Court, unless their proctors are consulted and approve them. The Thetis, p. 363, S. V. A. R. " : — Vide Costs. « . — tt Proctor. Recel: — The omission of two mortgages in the inventory of a suc- cession is not of itself sufficient proof of fraud to make the party lose his right in the succession. JShaw <$• al- vs. Cooper, S. C, 6 L. C. J., p. 38. Recognizance : — The omission in a recognizance of special bail of the following condition required by the Provincial Statute 5 Geo. IV, c. 2, "it being nevertheless expressly provided, in conformity to the statute in such case made and provided, that we, the cognizors for the said defendant in this cause, shall not, by virtue of the undertaking hereinbefore stated, become liable, unless the said defendant shall leave the Province, without having paid the debt, interest and costs," makes such recognizance null and void. Stewart vs. Hamel and Dubord, 1 Rev. de Leg., p. 212. R E C to REG 259 Recorder : — The recorder of Montreal is not bound to make any record wjiatever of evidence adduced before him, and con- sequently the Superior Court has no means of testing a question of jurisdiction, the solution of which depends on the precise character of such evidence.- Reg. on Pet. of Gould for Cert. vs. the Hon. Joseph Bourret, S. C, 1 L. C. J., p. 162. But see a later case of Ex parte .Zedoux for certiorari, S. C, 8 L. C. R., p. 255., Supra Vo. Conviction, where a con- viction by the Recorder was set aside,, there being no evidence set up to shew that the Recorder had jurisdiction. As to appeals from General Sessions of the Peace.. Gilchen and Eaton, Recorders Court, Quebec, 13 L. C. R., p. 471. Recors : — Vide Execution. " : — " Saisie-Revendication. Recoupement: — 1. The mate of a vessel is chargeable for the value of articles lost by his inattention, and the amount may be deducted from his wages. The Papineau, p. 94, t*. V, A. R. 2. Damages occasioned lo the ship by the mismanage- ment of the- pilot may be set off against his claim for pilot- age. TJie Sophia, p. 96, S. V. A. R. Recusation: — 1. The jlidge recused is competent to decide as to the • validity of his recusation. Canada Assurance Company vs. Freeman, 3 Rev. de Leg., p. 85. 2. The recusation eontemplated by the ordinance of 1667, tit. 24, art. 23, can only be made in writing. The inimitie capitate mentioned in the 8th article of the same title, to give rise to a recusation, must be hatred on the part of the judge, and must be so alleged and proved, failing which the reasons of recusation will be held to be impertinent ; and the causes of such hatred must be declared. And such hatred must be clear, manifest and known, the result of the killing of some near relative of the person urging such recusation, or the result of differences, personal encounters, or matters of large interest between such person and the judge, which could create a feeling of revenge which might lead to using the opportunity of destroying the life, the honor or the personal advantages of an enemy. Renaud and Gugy, Q. B., 8 L. C. R., p. 246. 3. The relationship of a judge with a shareholder of an incorporated Company, party to the suit, does not render the judge incompetent. Canada Assurance Company vs. Freeman, 3 Rev. de L6g., p. 85. 4. A judge appointed to act as a Commissioner under the 20 Vic. c. 43, [C. S. L. C, cap. 2.] (Codification Act,) renders him incompetent to sit as one of the Judges of the Court of Q. B., 5L. C. J., p. 79. Registers:— 1. Change of master, not endorsed on register, and no "bond given by new master, according to the 26 Geo. Ill, c. 60, sec. 18, and 27 Geo. Ill, c. 19, s. 7, operates a forfeiture. Perceval vs. The narrower, S. R., p. 80. 2. A dissenting minister of a protestant congregation, not being a public officer, nor a person in Holy Orders, recognized to be such by the law, is not entitled to and cannot keep a parish register for baptisms, burials and marriages. Ex parte Spratt, S. R., p. 90. 17* 260 REG Registers : — > 3. The word " Protestant Churches or Congregations," used in the Statute 35 Geo. Ill, e. 4, [C. Sts. L. C.,c. 20,] which requires rectors of parishes, &c, from 1st January, 1796, to keep two registers, both of which are authentic, only- embraces such churches and congregations as had their existence in the Province when the Statute was passed. , Spratt vs. The King, S. R., p. 14-9. 4. A minister of a presbyterian congregation in com- munion with the Church of Scotland is entitled to keep registers for marriages, baptisms and burials, notwithstanding that in the place, where he officiates, another church, also in communion with the Church of Scotland has been pre- viously established under the authority of Government. Ex parte Glugston, S. R. p. 448. 5. The certificate of baptism, will not be set aside upon inscription de faux, unless falsity or incorrectness is alleged and proved . That although not an extraet from the registers which the American Presbyterian Church was by law- allowed to keep, it was not therefore apiece fausse. But the only extracts which can carry authenticity are those extracted from the registers allowed and ordained by law to be kept. Shaw et al. vs. St/ken, S. C, 5 L. C. J., p. 124. And it will be left for the parties to make such proof respecting it as they may make by law. lb. Registrar : — A registrar is responsible for the loss caused by his neglect to enregister a mortgage, or by a certificate given by him wherein an omission occurs, from the effect of which a purchaser de bonne foi is troubled in his possession. Mon- tizamhert and Talbot dit Gervais, Q. B., 10 L. C. R., p. 269. And the action in such case should be an action en garantie, the registrar being the garant of the party to whom he has directly caused damage, lb. Registration: — 1. A tutor cannot maintain an action at law until his tutorship has been registered. Langlands vs. Stansfield et al., S. C, 7 L. C. J., p. 45. 2.' And in an action brought by the Tutor of a minor, it is essential that the declaration contain an allegation that the appointment of said Tutor, or a memorial of such appoint- ment, has been registered. Murray vs. Gorman, 2 L. C. R., p. 3. But in Chouinard vs. Demers, S. C, 5 L. C. R., p. 401, it was held, that an opposition to the sale of real estate by a Tutor ad hoc, authorized to act for minors, is maintain- able without reference to such actede tiitelle, the 24th section of the registry ordinance not applying to such oppositions. A purchaser who has been put in possession of an immove- able, and who has since caused his title to be registered, may invoke the prescription and possession of ten years as against the claim of a purchaser who had previously regis- tered his title, but was never put in possession. Thouin and Leblanc, Q. B., 10 L. C. R., p. 370. 3. A judgment rendered against the auteur of a party, who is in open and public possession of immoveable property, but who has not registered his title, creates no hypotheque on such property. Ex parte Gamble, Pet. for Gonf. of Title, S. C, 6 L. C. J., p. 169. REG to EEL 261 Registration : — 4. And in the case of Chaumont and Grenier, Q. B., 12 L. C. R., p. 125, it was held, that a deed, passed since the registry ordinance came into force, creating an hypothec is invoked as against a subsequent purchaser, and where the title creating the hypothec and that of the purchaser have been enregistered at the same time, the hypothecary creditor not having registered before the subsequent purchaser, had lost his right, and this although the purchaser was aware of the hypothec. 5. Where a debtor by fraud has incorrectly stated his christian name in a deed which is enregistered, the loss J will fall on the creditor and not on the tiers detenteur in good faith. Lafleur vs. Donegani et al., Q. B., (184-9) 7 L. C. J.., 6. Subsequent obligation enregistered preferred to dona- tion not insinuated prior to obligation. Principal Officers of Art. $- Pemberton,2Rev. de L6g. p. 299. 7. Hypothecs resulting from deed of lease need not be registered, according to the terms of the 4 Vic, cap. 30, sect. . 17. [C.-Sts. L. C, cap. 37, sect. 10.] Brown is. Mclncnly, S. C.,3 L. C. R.,p. 291. 8. The privilege granted as to letters patent by the proviso of sec. 4, 4 Vic. cap. 30, [C. Sts. L. C.^cap. 37, sect. 3, sub- sect. 3] only applies to the immoveable property granted by such letters patent. Morrin Srai. vs. Smith, S*C, 6 L. C. R., p. 279. 9. The crown has no privilege for fire debentures, given to any one who was not a sufferer by the fire, without regis- tration. Reg. if Bois, Q. B., 7 L. C. R., p. 471. Vide Tremblay vs. Bouchard, 1 Rev. de Leg., p. 47. " : — Vide Hypotheque. « . — it Partnerships. Registry Ordinance : — Vide Criminal Law. Registry of Vessels : — A title to a Steamer derived from a sale of the vessel and tackle, under warrant of distress issued by a Justice of the Peace, under the act 6 Will. IV, c. 28, [C. S. L. C, cap. 57,] for the recovery of seamen's wages, is insufficient to maintain an action en revendication, the Steamer not being shewn to belong to, or to have been registered in Lower Canada. And the Statute cannot be extended to vessels not belonging to, or registered in Lower Canada. Where the Statute authorizes the sale of a vessel, or tackle and apparel thereof, a warrant ordering the sale of the vessel, and the tackle and apparel thereof is illegal. Kerr vs. GUders'eeve, 8 L. C. R., p. 266, and 3 L. C. J., p. 304- Reint£grande: — To institute the action of reintegrande, the plaintiff should have been in possession a year and a day, particularly if his possession results from a trespass or a voie de fait. Samson vs. Bolduc, 3 Rev. de Leg. p. 361. " r — Possession. Relationship: — The opinions of two members of a Court, in the degree of relationship of brothers-in-law, cannot be reckoned as one under the Edict of 1681, and the declaration of th« King of France of 1708. Fleming vs. The Seminary of Montreal, S. R., p. 184. 262 EEL to R EN Release : — Witnesses examined under a release. The Lord John Russell, -p. 194, S. V. A. R. Religious Bodies: — Vide Corporations. Religious Congregation: — One member of a religious congregation, cannot by an action at law compel the trustees of the church property to adopt the formalities necessary to secure the appointment of a new trustee to fill a vacancy, the remedy being by prerogative writ and not by action. S?nith vs. Fisher et al., S. C, 2 L. C. J., p. 74. R£m£e£ : — The purchaser of an immoveable property, subject to the right of redemption, cannot eject the lessee whose lease has not expired. Russell vs. Jenkins, 3 L. C. R., p. 417. But see Appendix Vbo. Lease. Remise :— In the contract in the nature of a remise, the consideration need not be expressed ; and with respect to such contracts the formalities required by law in relation to donations are not necessary & peine de nullite. Robertson vs. Jones, S. C, 8 L. C. R., p. 364, Renewal: — Vide Promissory Notes. Rente Constitute : — 1. The hypothecary, creditor who opposes the decret of a constituted rent, created as the price of an immo- veable, and who is collocated on the produce of the sale, cannot again make his opposition when the property is sold to the prejudice of the purchaser of the rent. Audet vs. Hanwl, 2' Rev. de Leg., p. 256. 2. A rente constitute included among the charges subject to which real estate was sold by decret cannot be claimed in capital after sale by an opposition afin de conserver. Murphy et al., vs. Wall and Montizamhert, iS. C, 12 L. C. R., p. 194. Confirmed in appeal IS L'. C. R., p. 97. 3. The sale by decret of a constituted rent-doesn^t operate any novation of such rent and has not the effect of changing its nature. Turcotte vs. Pdpans etal., S. C, 7 L. C. J., p. 272. The proprietors far indivis of the property hypothecated fur the payment of the arrears of such rent which are indi- visible, are jointly and severally bound' for the payment of such arrears, lb. " : — Vide Hypotheque. Rente Fonciere : — Vide DeguerpIssemE'NT. Rent: — Vide Lessor and Lessee. Renunciation :— 1. The presumptive heires's, having collected moneys due to the deceased, arid kept in her hands mdtfeys left by him, could not renounce to the succession, andstich renun- ciation would be of no effect. Orr and Fisher, Q. B., 6 L. C. R., p. 28. 2. An acte of renunciation is necessary to discharge the herilier from liability in a suit although he has done no acte dlUritier ; and an action ugaimst him, if he appears and renounces before judgment, will be dismissed, but with costs against him. The Montreal City arid District Bwldihg Society vs. Kerfut et al., S. C, 4 L. C. J., p. 54. When option is equivalent to renunciation. Lefebvrevs. Demers. S. C, L. R., p. 56. Via% BissonnetU $■ Bissonnette, Q. B., L. R., p. 61. EEP to REQ 263 Reply :— -In public prosecutions for felony, the Law Officers of the 1 £ Wn ' and those who re P resent them, are entitled to reply, although no evidence is produced on the part of the prisoner. The Queen vs. QuattrepMes, 1 L. C. R, p. 317. Reprise d'Tnstance : — I . An association which has been incorporated by a provincial act during the pendency of a suit, is entitled to take up the instance as a corporation. Faribault and St. Louis et al., and La Compagnie du Richelieu, S. C, 3. L. C. J., p. 51. 2. A petitioner praying to be allowed to appear and take up the instance of a party deceased, will be first allowed to appear and file his petition, but the Court does not thereby admit his right which may after werds be a subject of con- testation. McKillip et al. and Kauntz et al., 1 Rev. de Leg., p. 152 ; Gillespie et al. vs. Spragg et al., and Mann et a 7 .., Pet. for reprise dHnstance. 6 L. G. J., p. 29. 3. A person cannot be held to appear iti a cause and take up the instance in place of the defendant, deceased, by a rule nisi, but by an ordinary writ of summons and petition in due form. Lafdnd et al. vs. Chagnon and La Chambre d' Agri- culture and Hood, S. C, 7 L. C. J., p. 1 12. 4. Where suggestion of death of one of several defendants is filed of record, a motion to force remaining defendants to substitute an attorney in place of one who had been promoted to the bench, will not be granted until such suggestion is removed or disposed of. Sauvageau vs. Robertson et al., S. C, 9 L. C R., p. 224. Reprise^ Matrimoniales : — The prescription oirepnses matrimoniales does not run during the marriage, or while the wife is under the power of the husband. Gauthier vs. MeHeclier de Moro- chond, S. C, 7 L. G. J., p. 320. And the universal usufructuary legatee of the wife sepa- rated as to property, may claim such matrimonial reprises after thirty years elapsed during the marriage and since the rendering of the judgment, lb. The clause of the husband's will, instituting his wife as his universal usufructuary legatee, subject to the charge of paying the debts of the testator, has not the effect in such case of operating any confusion in the person of his wife, as regards such matrimonial reprises by such acceptance. lb. Requete Civile : — The requite civile cannot be received against a final judgment, rendered en dernier ressort and without appeal. Yalin vs. La Corporation du Comte de Terrebonne, S. C., 4 L. C. J., p. 14 ; also, Martin vs. Moreau, S. C, 4 L. C. J., p. 121. Requete LiBELLfiE: — 1. In a proceeding by requite libellee, praying ouster of the defendant from an office held by him as coun- cillor of the city of Montreal, and further that the informant be declared to be entitled to said office, the mode of implead- ing defendant is by writ of summons, under the statute 12 Vic, c. 41, [C. S. L. C., cap. 88,] and not by a Judge's order, under the 14 and 15 Vic, c. 128. Lynch vs. Papin, t S. C, 4> L. C. R., p. 81, and'L. R., p. 9. But on a requite libellee, on which was granted an order for a writ of sum- mons to issue against defendant, it was held on exception d la forme, that the Judges in vacation have no jurisdiction 264 RE Q to RES ReQUETE LlBELLfiE: — over the subject matter of the petition, and the exception A la forme was maintained. Adam and Duhamel, S. C, in - vacation, 10 L. C. R., p. 14. 2. The petition or requite libellee required by the 12 Vic, c. 41, [C. S. L. C, cap. 88,] for the issuing of a writ of quo warranto, which sets forth generally the ground of complaint, is sufficient, without setting forth the details. Fraser et al. vs. Buteau, Q. B., 10 L. C. R., p. 289. 3. A party elected to be councillor in the corporation of the city of Montreal, not being possessed to his own use and benefit of real and personal estate within the city of Mont- real, after payment of his just debts, of the value of £500 Cy., is not qualified to be so elected. Holland vs. Bristow,. S. C.,4L. C. J., p. 281. That a party elected to be such councillor, and becoming insolvent during his occupancy of said office, is by such insolvency disqualified to hold such office. lb. And in the same case it was held that there was no appeal from the judgment of the Superior Court acting under the statute 12 Vic, c 41, [C. S. L. C, cap 88.] Q. B., 4 L. C. J., p. 283.» Rescision: — Vide Action Resolutoire. Resiliation : — Vide Action resolutoire. " : — " Donation. " : — " Pleading and Practice. Res judicata : — 1. An interlocutory judgment adopting without opposition the account of the succession prepared by its- order, passes in rem judicatum, and it is not competent to the representatives of a minor who was legally a party to the suit, to revise the proceedings, and contest any particular item of the account. The Court may however rectify any error of calculation. Pltnderleath vs. McGillivray, S. R., p. 470. 2. A judgment rendered against a principal debtor upon an issue raised by him, is res judicata against a surety, who was not party to the original cause. Brush et al. is. Wilson et. al., S. C, 2 L. C. R., p. 249. 3. A judgment dismissing an hypothecary action for want of proof of possession by the defendant, of the property hypothecated, cannot be opposed by exception rei judicata, to a subsequent demand, founded on actual possession, — possession being a fact which is renewed day by day. Nye and Colville et al., Q. B., 5 L. C. R., p. 408. 4. For a case in which a motion was refused on the ground that the subject matter was res judicata. Benjamin vs. Wilson, S. C, 6 L. C. J., p. 246. 5. Res judicata is properly pleaded to an action founded on judgment against the defendant in favor of third parties, who have assigned these judgments to the plaintiff. Wkelan vs. Keeler, S. C, 13 L. C. R., p. 363. 6. Defence grounded on a res judicata, must be specially pleaded. The Agnes, p. 53, S. V. A. R. * But see the case of Fraser et al. vs. Buteau, where it would seem the Q. B. had actually given a judgment on the merits of the petition. RES to RET 265 Res judicata : — 7. Where there had been a previous judgment of the Trinity House upon the same cause of demand, the Court declined to exercise jurisdiction. Tlie Phabe, p. 59, S. V. A. xv. A Court of competent jurisdiction having decided the facts which were directly in issue, the party is stopped from trying the same facts again, lb., p. 60. To allow several suits for the same cause of action in two several Courts, would lead to a worse than useless multiplication of law suits, would be highly vexations to parties, and would subject Courts to discredit from contrariety of co-existing decisions of equal authority in separate tribu- nals upon the same matters. lb., p, 61. Vide Opposition No. 30. Res publici et divini juris : — Vide Complainte. Retrait Gonventionnel : — The abolition of the retrait conventionnel by the 18 Vic, c. 103, sec. 4, [C Sts. L. C, cap. 41, sec. 45,] has no retroactive effect, and the retrait may be exercised upon immoveables sold before the passing of the said Act. The advertisement of the Sheriff, stating that the immove- ables will be sold, subject to the cens et rentes and other seigniorial and conventional dues and charges, according to the original title deeds of concession, is sufficient to preserve the droit de retrait, and in such a case an opposition afin de charge was not required. Garon and Casgrain, Q. B., 8 L. C. R., p. 397 ; also, Harwood et uz. and Whitlock et al., Q.B., 6 L. C. J., p. 259 ; also, 12 L. C. R., p. 294. Retrait Lignager : — Abolished by 18 Vic, c 102, [C. Sts. L. C, c. 53.] See a reported case, 5 L. C. J., p. 71', Dansereau vs~ Collette. Retrocession : — Vide Donation. Return day : — The defendant must be called on the return day of the Writ of Summons ; but Ihe writ and declaration may be brought in any day on motion of either party. Bolton ?s» Sanders, 1 Rev. de Leg., p. 400. " : — Vide Capias. Returning Officer: — By the Statutes of 12 Vic, c. 27, [C. S. C, cap. 6,] and 14 and 15 Vic, c 1, [C. S. C, cap. 7,] return- ing officers and their deputies have been and are subject to punishment by the House of Assembly fur malversation, — malversation on their part being a special breach of the privilege of the' House, as an attempt to put in or keep out a member unjustly ; and the general power accorded in cases, not provided for in the statutes, must almost always relate to the returning officer or his deputy, or to some person, not a member, in respect of whom the House is authorized to 'make such orders, as to the House may seem proper, neces- sarily implying a power in the House to enforce such order. The House of Assembly has the power, as being necessary to its existence, and the proper exercise of its functions, of determining judicially, all matters touching the election of its own members, including therein the performance of the duty of those officers, who are entrusted with the regulation of the election of its members. And Courts of Law cannot 266 E E T to RIP Returning Officer : — enquire into the cause of commitment by either House of Parliament, nor discharge nor bail a person, who is in execu- tion by the judgment of any other tribunal ; yet if the commitment should not profess to be for a contempt, but is evidently arbitrary, unjust and contrary to every principle of positive law or natural justice, the Court will not only be competent but bound to discharge the party ; a commit- ment by either House of Parliament, may be examined upon a return to a writ of Habeas Corpus. The Justices here, as those in England, possess and have exercised the power to issue writs of Habeas Corpus in matters of commit- ment by -either House of Parliament. The Provincial Statutes 12 Vic, c. 27, [C. S. C, cap. 6,] and 14 and 15 Vic, c. 1, [C. S. C, cap. 7,] invest the House of Assembly with power to punish, by imprisonment, a Deputy Returning Officer for malfeasance or breach of privilege^. Ex parte Lavoie, S. C, 5 L. C. R., p. 99. Revendication : — 1. Where in cases of revendication, the affidavit is manifestly bad, the writ and seizure may be quashed on motion ; but where the affidavit invites an issue on the alle- gations, the proper proceeding is by exception d la forme. Routh et al. vs. McPherson, S. C, 9 L. C. R., p. 413. 2. An action of revendication will lie to recover possession of moveables illegally seized. Langlois vs. The Corporation ■of the Parish of St. Roch et al., S. C, 13 L. C. R., p. 317. 3. A shipper may revendicate his property in the hands of the master of a vessel, who will not sign bills of lading. McCulloch et al. and Hatfield, Q. B., 13 L. C. R., p. 321, aad 7 L. C. J., p. 229. And if the Bills of Lading are signed after the issuing of the writ, but before its execution, the shipper may return the action for costs alone, lb. 4. In an action of revendication, the omission to leave a •copy of the procisi-verbal of seizAire, is not fatal, inasmuch as the Ord. of 1667 only requires this formality in cases of saisie execution. Moisan and Jorgensen, S. C, 13 L. C. R., p. 399. " : — Vide Complainte. " : — " Moveables. Revenue Cases : — Vide Admiralty. Revocation : — Vide Hypotheque. .. a ._ « Will. Revocatory Action : — Vide Action revocatoire. " " : — " Damages. Riparian Proprietor : — 1. Riparian proprietors are not entitled as a matter of right, to obtain a grant of beach lots in the River St. Lawrence, fronting their property, in preference to any other, and in particular cases the Crown can grant •such beach lots to those who are not the riparian proprietors. Reg. is. Baird, S. C, 4 L. C. R., p. 325. 2. An action by a riparian proprietor against a neighbour, also a riparian proprietor, to compel him to demolish a wharf will not be maintained, unless it be built in the bed of the river and be calculated to injure the complainant. A ripa- rian proprietor has a right to build a wharf to recover land RIP to R I V 267 Riparian Proprietor : — that may have been encroached upon by the river, if by so doing he does not injure his neighl tours. Brown and Gu^v. Q. B., 11 L. C. R., p. 401. o! " " '• — Vide Acckssion. Rivers: — 1. Rivers, whether navigable or not, are vested in the Crown for the benefit of the public, and no person, seignior or other, can exercise any right over them without a grant from the Crown. In an action of damages by the stopping of communication on a river, with a boom and chain, it appearing from an agreement between the parties, after the commencement of the action, that the placing of the boom and chain tended to their mutual benefit, the action was dismissed. Boissonnault and Olh*a, S. R., p. 564. 2. But in the case of Boswell and Denis, Q. B., 10 L. C. R., p. 294, it was held, that rivers non-nnvigables et non- Jtottablcs, are the private property of the riparian proprietors, who have consequently the elusive control over the same and the exclusive right of- fishing therein. _ 3. A seignior by his grant from the CroWn acquires a right of property in the soil over which a river not navigable flows ; but on running water he has only a right of servitude while it passes through or before the land he retains in his possession, which does not authorize him to direct the stream, or use the water, to the prejudice of the other proprietors above or below him. St. Louis vs. St. Louis, S. R., p. 575. And an action by a seignior against his co-seignior for the improper use of the common estate can be maintained, lb. Confirmed in the Privy Council, 3 Rev. de Leg., p. 329, also 3 Moore's Rep., p. 398. 4. In the case of Minor vs. Gilnwur, S. C, 9 L. C. R., p. 115, it was held, that by the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land, for instance to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have in case of a deficiency, upon proprietors lower down'the stream. And further he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of pro- prietors either above or below him. SubjeGt to this condi- tion he may dam up the stream for the purposes of irrigation ; but he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury. And 12 Moore's Rep., p. 131. 5. Under the provisions of the 19 & 20 Vic, c. 104, [Con. St. L. C, cap. 51,] a proprietor has no right to erect across a water-course, a dam abutting on the land of the opposite proprietor ; and if so erected it will be demolished at the instance of the latter. Joly vs. Gagnon, S. C, 9 L. C. R., p. 166. 6. A boom stretched across a floatable or navigable river is a public nuisance Which may be abated by any one. Beg. vs. Potion, Q, B., Cr. side, 13 L, C. R., p, 311. " : — Vide Servitude. 268 R O A to EUL Road : — 1. An action will lie by the assignee of a road officer against an absent proprietor, to recover an amount due for making a road through his lands. Ellison vs. Dunn, S. C, I L. C. R., p. 340. 2. Municipal Councils making by-laws for the opening of roads, &c, &c, are bound in compliance with the provisions of the 36 Geo. Ill, c. 9, [repealed,] commonly called the Road Act, to give the notices required by that Act. And if the road be a by-road (route) it is necessary that the price of the land should be paid or tendered to the proprietor. However long a road may have been opened and used by the public, no right is thereby acquired, and the proprietor of the soil can, at. any time, ■when a prods-verbal is made recognizing the^road as a public road, claim to be indemni- fied for the value of the land. Ex parte Foran &■ al., C. C, 4 L. C. R., p. 52. Road Tax: — An overseer of roads has no authority to-sue for pe- nalties under a by-law of a municipal corporation, imposing a road-tax and by the Act 10 & 11 Vic, c. 7, [repealed,] the powers formerly vestecT in the overseers of roads have been transferred to the municipal councils. Ex parte Rochehau, and Ex parte Eisenhart, S. C, 3 L. C. R., p. 497. Roman Catholic : — A Roman Catholic who has become a Protestant? cannot be held liable for his share of the rate levied for the building a church, although he may have done acts which a Roman Catholic could alone do, and that he had demanded the building of the church in question. Les Syndics de La- chine vs. Laf amine, S. C, 6 L. C. J., p. 226. 2. A person born in the Roman Catholic faith cannot dis- charge himself of the civil obligations attaching to Roman Catholics, by the fact of his having ceased to practise his religion and having followed the worship of a Protestant church, and such a person may be interrogated as to his belief, and his refusal to answer will be taken as an admis- sion of his not having changed his religion. Les Syndics de la paroisse de Lachine vs. Fallon, S. C, 6 L. C. J., p. 258. " : — Vide Dixmes. Rule: — It is by rule and not by a direct action that the clerk of the Court, in whose hands a deposit has been made, should be called on to pay over moneys. Merizzi and Cowan, Q. B., 6 L. C. J., p. 62. Rule of Practice: — 1. In default of any proof that the Rules of Practice of the Superior Court prepared and signed on the 17th Dec, 1S50, have been registered in the district of Gaspe, the Court here will not apply any such rules to any act done within that district. Macfarlane vs. McCracken, S. C, 5 L. C. J., p. 254/ Vide 2 L. C. J., p. 287. 2. The 26th rule of Practice of the Circuit Court, with respect to figures used in a return of service, is not dpeine de nullite. Lamothe and Garceau, Q. B., 13 L. C. R., p. 88. 3. A practising attorney cannot become bail or surety in any proceedings cognizable by Superior Court. Routier and * Is not the Superior Court sitting in the district of Gaspe a part of the Superior Court sitting in the district of Montreal? If so, is not the Court (i. e. the whole Court) obliged to know its own registers ? Again should it not be presumed, at all events, that the Court at Gaspe had performed its duty and enregistered these Kules of Practice ? HDL 269 "Rule of Practice i-^ Gingras, S. C, 3 L. C. R., p. 57; nor in Appeals from the Superior Court to the Queen's Bench, without contravening the 6th rule of practice. Lemelin and Larue, Q. B., 10 L. C R.,p. 190. 4. The part of the 7th Rule of Practice which prescribes " that all writs of appeal and error shall bear the signature of the attorney suing out the appeal " is merely directory and not peremptory. The rules of a Court are within its control, and it will relax them where a rigid enforcement of them will operate an absolute injustice. -Ross and Scott, Q. B., 9 L. C. R., p. 270. And so on motion for leave to examine witnesses, a notice of such motion served on Satur- day, will be considered sufficient for its presentation on the Monday, notwithstanding the 11th Rule of Practice of the Superior Court. Byrne &■ al. vs. Fitzsimmons and Fisher, S. C, 10 L. C. R., p. 383. 5. A motion for leave to examine a witness about to leave the Province, is exempted from the operation of the 1 1th Rule of Practice ; and a notice of such motion, served on Saturday, is sufficient for the presentation of such motion on the Monday. Byrne et al. vs. Fitzsimmons and Fisher, S. C, 10 L. C. R., p. 383. 6. Sufficient notice of a petition for discharge from a capias is given if it be served on Saturday between 4 and 5 V. M. for Monday morning. Trobridge vs. Morange, S. C, 6 L. C. J., p. 312. 7. Service at six in the morning is insufficient. McFarlane vs. Jameson, S. C, L. R., p. 89. And service of summons "before 8 A. M., is null, the 18th Rule of Practice being enjoined a peine de nullite. Kinney and Perkins, Q. B., 13 L. C. R., p. 302. And 7 L. C. J., p. 207. But the service of process ad respondendum, made after sunset, if made before eight in the evening is valid. Robinson vs. McCormick, S. C, 1 L. C. R., p. 27. 8. The 76th section of the Judicature Act of 1857, 20 Vic. c. 44, [Con. Stat. 1^ C, cap. 83, sect. 88,] has virtually repealed the 24th Kule of Practice of the Superior Court, requiring the filing of exhibits, on which a declaration or other pleading is founded, at the time such pleading is filed. Denis vs. Crawford, S. C, 4 L. C. J., p. 147. 9. But omission to file a bill of particulars, even where defendant is in gaol under capias, will not entitle defendant, under the 30th rule of practice, to dismissal of the action. Henderson vs. Enness, S. C. 2 L. C. J., p. 187. 10. By the 43rd Rule of Practice the inscription for enquSte is general, so when plaintiff has finished taking his evidence, if defendant be not present, the enqutte will be closed if plaintiff requires it. Bowker vs. McCorkill Sf Graham, S. C, L. R., p. 1. 11. Under the 95th rule of practice, a contestation by plaintiff of the declaration of a tiers-saisi on an attachment after judgment, will be rejected, if it be not made within the eight days limited by the rule. Masson et al., vs. Tassi et al., S. C, 6 L. C. R., p. 71. 270 R u L Rule of Practice : — 32. The report of distribution cannot be contested after the delay fixed by rules of practice, even where a special case is shewn, supported by affidavits. Forsyth vs. Matin et al., and divers oppts., S. C, 2 L. C. J., p. 59. But in the case of Woodman vs. Letonrneau and Letourneau, S. C, 3 L. C, J., p. 27, it was held, that with the permission of the Court, on cause shewn, an opposition afm de conserver might be filed at any time before the homologation of the report of distribution. ' And in the case of Frevost vs. Delesderniers and Frothingham, S. C, 3 L. C. J., p. 165, it was held, that the contestation of a judgment of distribution will be per- mitted at any time before its homologation, on cause being shewn and payment of costs. And so also in Clapin vs. Nagle and JSagle, S. C, 4. L. C. J., p. 286. But in Ramsay vs. Hitcldns and Ramsay, S, C, 1 L. C, J., p. 285, it was held, that where the omission was not due to the oversight of the attorney, the Court will not allow the opposition to be filed so as to disturb the parties collocated, but will admit it so as to give the new opposant the moneys not distributed. " : — Vide Vo. Distribution. Rule of the Sea : — 1. It is a generally received opinion among sea- men, that it is imprudent and improper to anchor idirectly a-head or directly astern of another vessel in the direction of the tides or prevailing winds, unless at such or so great a distance as would allow time for either vessel to take mea- sures to avoid collision in the event of either driving from her anchors. The Cumberland, p. 79, S. V. A. R. It is moreover the usual practice not to anchor near to and directly in another vessel's hawse, that is, directly a-head and in the direction of the wind and tide j and in the books w'hich treat on seamanship it is mentioned as a thing to be avoided, not only to prevent accidents from driving in bad weather, but also in order that either vessel may be able to get under weigh without risk of collision with the other, lb., p. 80. 2. It is a rule universally received among seamen, and to be found in books on seamanship, that when there is doubt,, the vessel on the larboard tack is to bear up or heave about for the vessel on the starboard tack. The Nelson Village, p. 156, S. V. A. R. 3. When a vessel is in stays, or in the act of going about, she becomes for the time unmanageable, and in this case it is the duty of every ship that is near her to give sufficient room. The Leonidas, p. 229, S. V. A. R. When a ship goes about very near to another, it is her duty to give a preparatory indication, from which that other can,, under the circumstances, be warned in time to make the ne- cessary preparations for giving room. lb. 4. When two vessels are approaching each other, both having the wind large, and are approaching each other so that if each continued in her course there would be danger of collision, each shall port helm so as to leave the other on the larboard hand in passing. The Nigara, p. 315, ib. But it is not necessary, that because two vessels are pro- ceeding in opposite directions, there being plenty of roonij. RUL to S A I 27.1 Rule of the Sea: — the one vessel should cross the course of the other,- in order to pass her on the larboard, lb. 5. It is the duty of every vessel seeing another at anchor, whether in a proper or improper place, and whether properly or improperly anchored to avoid, if practicable and consistent with her own safety, any collision. The John Munn, p. 266,. S. V. A. R., in notes. 6. One who has the management of a ship is not allowed to follow that rule to the injury of the vessel of another, when he could avoid the injury by a different course. The Niagara— The Elizabeth, p. 323, S. V. A. R. 7. Rule as to ships meeting each other, Merchant Shipping Act 1854, which came into operation on 1st May 1)855, (17 6 18 Vic. c. 104, sec. 296.) The lnga, p. 335, S. V. A. R. 8. Where two ships, close hauled, on opposite tacks meet, and there would be danger of collision if each continued her course, the one on the port tack shall give way, and the other shall hold her course, unless by so doing she would cause unnecessary risk to the other. The Mary Bannatyne, p. 353, S. V. A. R. Nor is the other bound to obey the rule, if by so doing she would run into unavoidable or imminent danger ; but if there be no such danger, the one on the starboard tack is entitled to the benefit of the rule. lb. Rules and Regulations : — Made in pursuance of the Imperial Sta- tute, 2 Will. IV, c. 51, touching the practice to be observed in suits and proceedings in the several Courts of Vice-Ad- miralty abroad, and established by his late Majesty's Order in Council, at the Court of St. James's, the 27th of June, 1832, pp. 1 to 51, S.V. A. R. Supplementary rules established by Her Majesty's Order in Council, at the Court of Buckingham Palace, the 2nd of March, 1848, p. 52, lb. ' Ruling op a Judge in Chambers : — Vide Appeal. Sais ie- Arret : — 1. An attachment will lie against two persons ap- pointed by commission from the Crown to the office of Sheriff for the non-payment of moneys levied by one of them, although the other may not have assumed the duties of the office or acted in any manner under the commission. Black vs. Newton Sf al., S. R., p. 298. The defendant has a right to contest the validity of an affidavit and saisie-arrit before judgment on an eoxeption d la forme. Biroleau dit Lafleitr vs. Lebel, C. O, 6 L. C. J., p. 168. And this independently of the contestation which may be raised upon the summons ad respondendum. Leslie . A deed purporting to be a promise of sale, but contain- ing saisine in favor of the purchaser, and transfer of pos- session by the vendor, is in fact a deed of sale, notwithstand*- ing the condition to give a title only after payment of the first instalment. Kerr and Livingston, Q. B., 1 L. C. R., p. 27&. And such a sale of immoveables gives rise to lods et rentes. The Seminary of Quebec vs. Maguire, S. C, 9 L. C. R., p. 272. And a promise of sale, followed by possession, is equivalent to an absolute sale ; and an hypothecary claim created against the vendor, subsequently to such promise of sale, is inoperative against the property so sold. Gosselin vs. La Compagnie du Grand Tronc, Q. B., 9 L. C. R., p. 315. And where such purchaser brings an action against a third party, to whom he has resold a portion of the property, as # These two oases appear to be contradictory, but they are not really so. The prin- ciple is that the sale is not complete without tradition. Now where the goods have to be measured, there can evidently be no tradition until the measurement has taken place. It is in fact the sate of a corps incertain. In the second case, the words "though not delivered" are used in an unteclinical sense. The goods were not all physically in the possession of tie purchaser, but he had had tradition of them, that is, they were at his disposition, and lie hai! actually removed a part. 282 SAL Sale : — well in his quality of proprietor as of agent of his vendor, he will have judgment as proprietor, lb. 5. In Gaulin aud Pichette (Vide Promesse de vente) it was held that a verbal promise of sale, followed by tradition, was not equal to a sale. But in Pinsonnault and Dvbe, Q. B., 3 L. C. J., p. 176, it was held that the promise of sale, though verbal, if followed by tradition, is equal to a sale. 6. In an action to compel a party to execute a deed of sale, the plaintiff is not bound to tender by his action and to deposit in Court, the purchase money, more particularly if the defendant pleads that he his unable to execute the required deed. Perrault vs. Arcand, S. C, 4 L. C. R., p. 449. 7. A horse sold in open market to a purchaser in good faith will only be restored to the owner on his re-imbursing to the purchaser the price he paid for the horse. Morrill vs. Unicin, S. C.,L. R.,p. 60. And this is in conformity, with the ruling in Fawcett &• al. and Thompson &■ al., Q. B., 6 L. C. J., p. 139. s 8. But in, Mathewscs. Senecal, it was held in the S. C, that the sale of a moveable by a party in possession of it as lessee, will not be maintained, and that an action by the real proprietor will be maintained against an innocent purchaser. 7 L. C. J., p. 222. And ahorse lost and purchased bona fide in the usual course of trade, in a hotel yard in Montreal, where horse dealers are in the habit of selling daily a number of horses, does not become the property of the purchaser as against the owner who lost it. Hughes vs. Reed, S. C, 6 L. C. J., p. 294. 9. The sale by the sheriff of immoveable property, which does not contain the extent of ground described gives the purchaser the right of demanding a reduction of the price proportionate to the extent of ground deficient. Paradis vs. Altain, S. C, 2 L. C. R., p. 194 ; also Grey vs. Todd Sf al., 2 Rev. de Leg. p. 57. And of recovering money paid from the party poursuivant le decret who has received the pro- ceeds. ' S. C, 9 L. C. R., p. 108, and 3 L. C. J., p. 75. But he would not have the right to seek the nullity of the sale. Grey vs. Todd cf- al., 2 Rev. de Leg. p. 57. But it would be otherwise if the lands were described as having buildings on them, when in effect there were none. Lloyd vs. Clapham, 2 Rev. de Leg., p. 179. 10. The costs of sale of immoveables by sheriff are shared in proportion to the value and not to the extent. Pacaud vs. Duhi, S. C, 7 L. C. J., p. 279. And so are the costs of dis- tribution, lb. Any opposant may force an adjudkataire to deposit the price of his adjudication, although such opposant had no right to the moneys, lb. 1 1. An action cannot be maintained by a vendor to recover an instalment on the prix de vente, the deed containing a stipulation that the vendor should furnish to the purchaser, before payment of the instalment, a certificate from the registrar of the county within which the land is situated, that there are no mortgages or incumbrances on the land. Aud there being no proof that such certificate was furnished, notwithstanding proof adduced with the plaintiff's answers SAL 283 55ALE : — to the pleas, of a notarial receipt, not registered, dated previously to the sale, discharging the mortgage or bailleur de fonds claim alleged by the defendant's pleas to exist on the land in question. Bunker vs. Carter, S. C, 5 L. C. R., p. 291. 12. A lettre missive is a sufficient power of attorney for the sale of the lands therein mentioned. And a writing in the form of a letter is a sufficient conveyance of land, although such letter was executed by a firm, one of the partners in which was the person mentioned in the power of attorney, and although the terms of payment for the lands in question were different from those mentioned in the lettre missive. Cummings and Quintal, Q. B., 7 L. C. R., p. 139. 13. Questions as to the" validity of the sale of real estate will be determined by the law of the local domicile of the parties, and therefore a sale of real estate in Lower Canada, made in the United States, by a married woman whose matrimonial domicile was Lower Canada, without the express authorization of her husband, is valid. Laviollette vs. Martin, S. C, 2 L. C, J., p. 61. 14. The sale of an immoveable property subject to a rente viagere is susceptible of the same stipulations as an onerous donation. And in such a sale the prohibition to alienate may be validly imposed on the purchaser with a resolutory clause in case of contravention. And a voluntary resolution is valid against third parties, even when it does not appear to have been caused by the occurence provided for in the resolutory clause ; and such a voluntary resolution effected for good and valid consideration will have the same effect as. a resolution judicially pronounced. And an hypothec created in favor of a third party by the purchaser, during his possession, is distinguished by such voluntary resolution although not caused by the event provided for, and although made in the form of retrocession for good and valid con- sideration. Lynch and Hainawt, Q. B., 5 L. C. J., p. 306. 15. When there is a sale of goods by sample, and the goods do not agree with it, the vendee must make known the defect within a reasonable delay, — he could not claim to rescind the sale and return the goods after a delay of six months. Joseph vs. Morrow <£• al, S. C, 4 L. C. J., p. 288. 16. Held in the Superior Court:— That a purchaser who has received a quantity ol flour sold by sample, is entitled, when sued for the price, to a rrduction, equal to the dimi- nished value of the flour received, it being inferior to the sample. That the purchaser is bound on the receipt of the flour to have it examined without delay and to tender it back ; and that a notarial protest and tender on the 21st of July, was too late, the sale and delivery having been made on the 19th of June, although verbal notice of the bad qua- lity of the flour had been given to the brokers on the 27th of June. That the purchaser having sold part of the flour, was not entitled to have the sale set aside for the remainder. Held in Queen's Bench : — That the offer to deliver back the portion of flour remaining in the hands of the purchaser, was a valid offer ; and that the confession of judgment 284 SAL Sale : — offered in one of tlie pleas for the balance of the price was sufficient and should have been accepted. That the pur- chaser was entitled, as part of his damages, to deduct the cost of transportation to and from his customers in the country, to whom part of the flour had been forwarded without having been examined, and also the deduction from the price allowed to the customers on such sale. Leduc and Slmw &• al., 13 L. C. R., p. 438. Sale of Immoveables : — Vide Action Resolutoire. " " : — " Assessments. " " : — " Franc et Quitte. " " :-■ " Lease. " : — " Power of Attorney. Sale of Ship : — Sale of ship has not the effect of discharging sea- men from their engagement. The Scoti-a, p. 160, S. V. A . lVi Sale super non domino : — Vide Adjudicataire. Salvage: — 1. The mere quantum of service performed is not the criterion for a salvage remuneration. The Royal Middy— Davison, V. A. C, 12 L. C. R, p. 309. 2. A vessel struck on Red Island shoal in the river St. Lawrence, at the end of November, 1853, and being aban- doned by the crew, was subsequently carried off by the ebb tide. She was followed by four young men, who, with great perseverance, courage and skill, and with great peril of their lives, forced their boat through the ice, got on board and brought her back to the bay of Tadousac, where she remained in safety during the winter, and until she pro- ceeded on her voyage in the following spring. On a value of J63000 currency, the Court awarded £500 currency and costs. The Court ruled that in all cases of salvage protests ought to be brought in. The Electric, V. A. C, 5 S. C. R., p. 53. 3. The Palmyra sunk in the St. Lawrence, and was raised and saved by the machinery on board the Dirigo and the great skill and experience of her master and crew. £1,000 salvage was awarded. V. A. C, 10 L. C. R., p. 144. 4. Persons acting as pilots are not to be remunerated as salvors. The Adventure, p. 101, S. V. A. R. Under extraordinary circumstances of peril or exertion, pilots may become entitled to an extra pilotage, as for a service in the nature of a salvage service, lb. Such extra pilotage decreed to a branch pilot for the River St. Lawrence for services by him rendered to a vessel which was stranded at Mille-Vaches, in the River St. Law- rence, on his voyage to Quebec, lb. 5. In case of wreck in the River St. Lawrence, (Rimouski,) the Court has jurisdiction of salvage. The Royal William, p. 107, S. V. A. R. In settling the question of salvage, the value of the pro- perty, and the nature of the salvage service, are both to be considered, lb. The circumstances of the case examined, and the service declared to be a salvage service, and not a mere locatio S A L to S A V 285 Salvage : — operis, though an agreement upon land was had between the parties in relation to such service, lb. Salvors have a right to retain the goods saved, until the amount of the salvage be adjusted and tendered, lb.. p. 111. ' 6. Seamen, while acting in the line of their strict duty, cannot entitle themselves to salvage. But extraordinary- events may occur, in which their connexion with the ship may be dissolved de facto, or by operation of law, or they may exceed their proper duty, in which case they may be permitted to claim as salvors. The Robert and Anne, p. 253, S. V. A. R. * 7. Compensation decreed to seamen out of the proceeds of the materials saved from the wreck by their exertions. The Sillery, p. 182, S. V. A. R. 8. Salvage allowed by Judge Kerr to the chief and second mates and carpenter, for their meritorious services, out of the proceeds arising from the sale of the articles saved from the wreck. The Flora, p. 255, S. V. A. R., in note. 9. Whether when a merchant-ship is abandoned at sea, sine spe revertendi ant recuperandi, in consequence of damage received and the state of the elements, such abandonment taking place bona fide, and by order of the master, for the purpose of saving life, the contract entered into by the mariners is, by such circumstances, entirely put an end to ; or whether it is merely interrupted and capable by the occurrence, of any and what circumstance, of being again called into force. The Florence, p. 25-i, S. V. A. R., in note. 10. In a case of very meritorious service rendered by two / seamen and two young men, to a vessel in the River St. Lawrence, the Court awarded one sixth part of the property saved, and also their costs and expenses. The Electric, p. 330, S. V. A. R. Savings Bank : — That the President and Directors of a Savings Bank who illegally mix themselves up with a commercial banking business, although under color of acting for the bank, will be held responsible for their transactions. And so in the case of Prevost and Allaire, a charitable institution appointed delegates to establish a savings bank. These delegates elected a president and directors, who adopted certain regulations, and, among others, one prohibiting any profit to the officers of the institution. Deposits were received, to be repaid with interest, and promissory notes were discounted upon the credit of individuals ; upon these discounts a percentage was taken by the s directors, and a portion of the funds was appropriated to their own use for their services. The bank or business, so established, was ultimately closed as being insolvent, and a portion of the debts due as special deposits, were bought up by the direc- tors at a composition in the pound ; and it was held on assumpsit against the president and several of the directors, by one of the depositors who had been one of the above- mentioned delegates, for the full amount of his deposits : That without reference to the question of fraud, delit or quasi delit, the president and directors had become traders 286 S A V to SCH Savings Bank : — by mixing themselves up with a commercial banking busi- ness, and were jointly and severally liable to each depositor for the amount of his deposits, and that had the plaintiff approved of the proceedings of the directors, submitted annually at meetings of the depositors, his approval, obtained by means of false statements, could not operate to his preju- dice ; and it further held that the charitable institution had no interest in the matter, and that no action p?o socio, for or against it would lie. That the president and directors having become a co-partnership or an unincorporated com- pany, the action was well brought against one or more of them, under the provisions of the 12 Vic, c. 45, [C. Sts. L. C, cap. 65,] Q. B., 11 L. C. R., p. 293. / Scelle : — 1. It is essential to the validity of a scelle that it be exer- cised by a Judge in person, and not by a mere ministerial officer of the Court, and that the property and papers, which are the object of the scelle, remain under the seal of the Court, with a guardian to protect them. Richardson vs. Molson, S. R., p. 376. 2. The Superior Court at weekly sittings has no jurisdic- tion under the 74th section of the Judicature Act, 12 Vic.,c. 38, [Rep. 20 Vic, cap. 44, sec. 91,] to revise the order of a Circuit Judge ordering a scelle, under the 41 Geo. III., c. 7 sec. 18, [C. S. L. C, cap. 86, sec. 4,] the authority of the Court in such cases must be exercised in term. Where un- der the provisions of a will, the testatrix has bequeathed all her property to her husband, en pleine propriety, exempting him from the necessity of making an inventory, but on con- dition that he does not re-marry, in which case he is bound to account to 'the heirs, the order of a Judge of the Circuit Court requiring that an inventory shall be made before tak- ing off the seals which have been affixed at the instance of the heirs, is a prudent judgment consistent with the interest of all parties, and not to be disturbed. Cardinal and Belinge, S. C, 3 L. C. R., p. 435. School Acts : — Rights of dissentients non-resident. The Trustees of the Dissentient School of St. Henri vs. Young, 13 L. C. R., p. 473. School Commissioners: — 1. Power granted by a statute to remove masters for misconduct or incapacity, " after a mature deli- beration at a meeting called for that purpose," does not exempt them from the ordinary legal liability to justify their acts towards such masters, when called upon so to do. Browne vs. The School Commissioners of Lnprairie, S. C, 1 L. C. J., p. 40 ; and so also it was held in Gaudry vs. Marcotte, S. C, 11 L. C. R., p. 486. 2. School Commissioners are bound to respect the resolu- tions of their predecessors. The School Commissioners for the Parish of St. Michel vs. Bastien, S. C, 4 L. C. J., p. 123. 3. The liability of a municipal corporation is measured by its powers, and consequently School Commissioners are not liable for the balance of an obligation given for the erection of a model school house, such balance being in excess of the amount authorized by law to be so expended. The ScJwoi S C H to SEC 287 School Commissioners : — Commissioners for the Municipality of Barnston, Q. B., 4 L. C. J., p. 363; also 11 L. C. R., p. 46. " : — Vide Secretary-Treasurer. School Municipality:— Under the 9th Vic, c. 27, [C. S. L. C, cap. 15, sec. 64,] the various school municipalities had a right to obtain a surrender, from the royal institution of the lands held in trust for school purposes within their respective municipalities, a school municipality having been divided under the 12 Vic, c. 50, [C. S. L, C, cap. 15, sec. 30,] with- out any mention as to one of such lands held in trust, the Court held that the surrender should be made to the munici- pality within the limits of which the lot of land in question was situate. The S'.hool Commissioners of St. Pierre de Sorel rs. The School Commissioners of William Henry, S. C, 11 L. C.,E.,p. 68.* Scire TTacias: — The writ of scire facias is not indispensible to obtain the revocation or cancelling of letters patent, and the Crown represented by the officers of the Ordnance, can waive the prerogative of the writ of scire foci 'as, and claim by the usual and ordinary process, the nullity of the letters patent, making a grant or concession of wild lands, on which respondents have based their action. A defendant may, by exception, * invoke the nullity of the title set up ,by the adverse party, without proceeding directly by action or incidental demand to rescind such title. The Principal Officers of Her Majesty's: Ordnance and Taylor et al., Q. B., 1 L. C. R., p. 481. The writ of scire facias to cancel letters patent can only issue at the suit of the Crown. Exp. Paradis, S. C, 7 L. C. J., p. 130 ; also L. R., p. 65. Seamen: — Vide Mariners. Seamen's Wages: — Vide Wages. Season of Navigation : — The word " summer " used in a contract to indicate the period within which timber should be delivered in Quebec, means, the season of navigation which begins in the commencement of May, and terminates about the end of November, and cannot be understood as limiting the time strictly to the three months which form the season of summer as the year is divided in the calendar. Thibaudeau and Lee, Q. B.,7LC. R., p. 230. f Secretary-Treasurer: — 1. The Secretary-Treasurer of a municipal corporation cannot bring suit as attorney for the corporation in his own name. Bourassa and Gariepy, S. C, L. R.,- p. 55. 2. No one but the sovereign*can sue by Attorney, lb. Vide Attorney-General, No. 2. And so a sous-voyer oi inspector of roads cannot sue for the municipal council, Muirand DeceUe, C. C, L. R., p. 75. 3. The Secretary -Treasurer cannot recover from the School Commissioners, out of the School ftrnds, any salary or pay- " # This case was reversed in the Q. B., June, 1864. f The holding of this report appears to be more generalized than the opinions expressed by the Judges in rendering judgment warrant. The value ot the word "summer" as used in the deed in question, was heid to mean the season ol navigation ; and it may be said, with Judge Duval, that summer, in a contract, will always be held to mean summer in contradis- tinction to winter, a period pretty well defined, at least in this region. 288 sec Secretary-Treasurer : — raent for extra services by him rendered to such Commis- sioners. Pelletier vs. Les Uonvmissaires d?Ecole pour la Municipalite de Ste. Philomine, S. C, 4 L. C. R., p. 394. " : — Vide Service. Security : — Vide Appeal. -Security for costs : — 1. Security for costs cannot be given by one person. Donald vs. Beckett, S. C, 4. L, C. J., p. 127. Also Powers vs. Whitney, S. C, 6 L. C. J., p. 40. 2. Where two defendants severally demand security for costs, separate bonds must be given ; but the same sureties in each bond will suffice. Bell et at vs. Enowlton et al., S. C, 13 L. C. R., p. 232. 3. Security for costs cannot be claimed by the sheriff or. other officer of the court before obeying the order of the Court, Leverson et al. vs. Cun ningham and Boston, S. C, 1 L. C. J., p. 3. 4. The four days allowed to ask for security for costs does not mean for days in term. Williams vs. Arthur $• al., S. C, 6 L. R., p. 82. But in the case of Comstock Sf al. vs. Lesieur, S. C, 2 L. C. J., p. 306, it was held, that a defendant summoned to appear in vacation can demand security for •costs on the first day of the nearest term, without giving notice within the first four days from the return of the writ. And so also, it is alleged, in a note in the Jurist, vol. 5, p. H6, it was decided by Mr. Justice Badgley, in a case which is not reported, of Stirling vs. Dow Sc al., S. C. M., 17th Feb., 1859. 5. But in the case of Tiers 4" al> vs. Trigg $■ al., the Court returning to the ruling of Williams vs. Arthur fy al., held that a motion for security of costs is too late when notice thereof is made after the fourth day from the date of appearance, but for the first day of the term following the return and appearance, 5 L. C. J., p. 25. But later still, Smith, J., affirmed the ruling in Comstock vs. Lesieur, in a case of Perry vs. Tlie St. Lawrence Grain Elevating and Floating Storage Company, S. C, 5 L. C. J., p. 252. 6. In counting the four days for asking for security for costs the appearance of appellant for ratification of title dates from the presentation of petition and from filing of deeds in Court. Ex parte Wood, S. C, L. R. p. 107. 7. The Court will order that security for costs be given within a certain delay, else the action will be dismissed with, costs. Adams vs. Sutherland, S. C, 1 L. C. J., p. 196. And security not being given, on motion the said case was so dismissed. Adams vs. Sutherland, 2 L. C. J., p. 109. Also Castongue vs. MMson fy al., S. C, 6 L. C. J., p. 121 ; and 12 L. C. R. } p. 404. 8. Notice of security for costs having been given should be signified to defendant, and if that has not been done, a demand of plea and foreclosure, without such notice, are irregular. Jersey vs. Rowell, S. C, 13 L. C. R., p. 172. And if judgment be entered up by the prothonotary relief will be given on simple petition, as provided by Con. St. L. C, cap. S3; sect. 115, or by appeal to the Queen's Bench; but if appeal be taken, defendant will only get costs of the Court below and disbursements in appeal, lb. SEC 'to S EI 289 Security for costs : — 9. Plaintiffs leaving the province after judgment given must give security for costs to an opposant, if required, on contestation of his oppposition. Maltoney Sf al. vs. lomkins and Gedrfes a bank commission of one fourth per cent, charged by the sub-agent, and which is usual in England on similar transactions. That the said party is not liable by reason of the bankruptcy of, his substitutes for moneys due by them ; and the principal is to bear such loss, inasmuch as under the circumstances, the substitutes were his own attorneys and agents, there being no evidence that the agent was not justifiable in appointing the sub : ngents. Synies awl Lampson, Q. B., 5 L. C. R,, p. 17. " : — Vide Delivery. Shipping Act: — Vide Registry or Vessels. Signification : — The want of signification of a sentence arbitrate en- tails its nullity. Blanchet Sf ux. vs. Charron, Q. B., (1842,) 4 L. C. J., p. 8. « : — Tide Assignment. « ;— " Transport. 300 SIM to SLA Similiter : — Vide Pleading and Practice. Simulation : — A deed of sale by a debtor to his brother-in-law, and another by his brother-in-law to his wife, will be set aside at the suit of a creditor as fraudulent where there is no valid consideration for such sale. Rimmer vs. Bouchard ty al., S. C, 7 L. C. J., p. 219. It is an indication of fraud in the alienation of property by a debtor, that the employment of the money does not appear, lb. And when the books of a trader, who has taken part in the alienation, shew no entries of any transaction, lb. The distress of the debtor also gives rise to a presumption' of fraud, lb. The savings of a wife previous to marriage fall into the community and are liable for the debts thereof. lb. Slahder: — 1. The words used by a person, sued for false imprison- ment, in giving the party in charge cannot also become the subject of an action for slander. McOann vs. Benjamin, S. C, L. R., p. 13. 2. In an action for slander the expressions complained of must be proved. Lavoie vs. Gagnon, Q. B., 10 L. C. J., p. 185. But the ipsissima verba need not necessarily be proved, if the substance of the charge be made out. Beaudry and Papin, Q. B., 1 L. C. J., p. 1 14. 3. In an action on the case for slander, one witness proved that the defendant, speaking of the plaintiff, had used the word " whore," and said that " she had been kept by a gen- tleman," who"se name the witness gave, and a second witness proved, that the defendant, on a different occasion, speaking of the plaintiff, had said — " that she has been frequently seen in the company of a gentleman," mentioning the same name as that sworn to by the other witness, and it was held, that there was not sufficient proof to warrant a verdict for the plaintiff, and that the testimony of the second witness was not corroborative of the evidence of the first. That a communication by a merchant to his clerk,, in his private office, affecting the character of a third party, made in the course ef conversation occasioned by the absence from his duties of another clerk of the merchant, is a privileged communication. Ferguson vs. Gilmoitr, S. C, 5 L. C. ft., p. 145. 4. An action of damages will lie against a person who has used language or made insinuations which have the effect of injuring the character of the plaintiff; and the plaintiff may obtain damages without proving that the imputations made against him were false. Belanger and Papineau, Q. B„ 6L.C. R., p. 415. 5. If no intent be laid in the declaration the meaning of words cannot be proved in an action for slander. McCarthy vs. Laurier, S. C, L. R., p. 36. 6. The statement of the owner of a vessel to the effect that the pilot had been paid to run a vessel ashore and des- troy her, is highly slanderous and injurious. Morissette vs. Jodoin, S. C, 12 L. C. R., p. 333. 7. Where an attorney in the conduct of a suit, remarks jupon the character of a witness in accordance with the SLA to STA , 301 Slander : — instructions of his client, his defence will be favorably- looked upon. Lavoie and Gagnon, Q. B., 10 L. C. R., p . 185. 8. The allegation of fraud in a plea is not libellous, and such allegations will not support an action for libel unless, it is also also alleged that the plea complained of was merely used to cover the libellous matter, which was irrelevant to the issue. Fitesintmons vs. Byrne &• wf the table of fees of the 27th June, 1 832. lb. From this period down to the Order in Council of the 20th of November, 1835, this table of fees was acted upon. lb. Upon the 3ast mentioned order for rescinding it being received, the deputy of the then Judge of the Court, who- discharged the duties of the office, ad interim, during the absence of the Judge, from the 30th of August, 1833, to the 21st of September, 1836, allowed, certain fees to the officers of the Court as a quantum meruit, without reference to any particular tariff or table of fees. lb. Very soon after entering on the discharge of the duties of Judge of the Court, to which the present incumbent was appointed on the 21st of September, 1836, he held, that since the passing of 2 Will. IV., c. 51, (23rd June, 1839,) it was not competent to the Court to award a quantum meruit to its officers, the table of fees having been revoked by the Order of Council of the 20th of November, 1835, without any other being made, lb., p. 149. The power given by the 2 Will. IV., c. 51, to His Majesty in Council, from time to time, " to alter " tables of fees established under the authority of that Act, and to make new ones, contains in it the power of rescinding an estab- lished table without substituting another in the place of it. lb. Whatever might have been the effect of the Order in Council of the 20th of November, 1835, in reviving a table of fees which had been before legally established, it could not have the effect of giving validity to a table of fees like that of 1809, which at no time had legal existence, lb. 3. New table of fees for the officers and practitioners of the Court, established by an Order of Her Majesty in Council, dated at Buckingham Palace, the 2d of March, 1848, lb. p. 155. Opinion of the Attorney and Solicitor General of England, afterwards Lord Campbell and Lord Cranworth, as to the au- thority of the Judge of the Vice- Admiralty Court at Quebec, to establish a table of fees. Note to the case of the John and Mary, lb. p. 69. : Tacite Reconduction : — Where a lease of moveables is continued by tacite reconduction, the lessor can terminate the lease whenever he pleases, and can at any time revendicate the moveable so leased. 'Laurent et al. vs. Labette, S. C, 5 L. C. J., p. 333. Tariff : — Vide Fees. Taxes : — 1. Municipal and other taxes are the charges of the enjoy- ment and possession of an immoveable property, and the holder whom it is sought to expel, cannot claim to he re- imbursed his payments thereof. Filion vs. DeBmujeu, S, C, 5 L. C. J., p. 128. TAX to TIE 309 Taxes : — 2. The Corporation of the City of Quebec have a right to raise the capitation tax to 5s. a head. Exp. Bourdases, S. C, 11 L. C. R.,p. 457. 6 ' " : — Vide Sheriff. " : — " Student. Tax for Court House:— Vide Sheriff. Tax for Reports: — Vide Advocates. Tax for Water -.— Vide Water. Tavern-Keepers :— Under the Act respecting Tavern-keepers and the sale of intoxicating liquors, C. S. L. C, cap, 6, " keeping a house of public entertainment " is no offence unless quali- fied. Ex parte Mogi, S. C, 7 L. C. R., p. 107. Tavern Licenses :— The Mayor and Councillors of the City of Quebec, under the 14 and 15 Vic, c. 100, sees. 5 and 6, have a dis- cretionary power as to the confirming or refusing to confirm certificates for tavern licenses, and in the exercise of this discretion, they are not to be controlled by the Superior Court or the Judges of the the Court in vacation. Ex parte Lawlor, S. C, 2 L. C. R., p. 274. Temoins Instrumentaires : — Vide Evidence. Temoins necessaires: — Vide Evidence. Tender: — Vide Coin. " : — " Currency. " : — " Offres reelles. Tenders or Lighters: — Vide Bill'of Lading. Tenure's Act: — Vide Law of England. Testamentary Executors: — 1. The administration of a testamen-. tary executor is a mandate of a private nature, which can only be delegated by the testator, and is not a trust of a public nature, which can be imposed by a judge. Gugyvs. Gilmor, 1 Rev. de Leg., p. 169. 2. Where an executor, whose powers have been extended by the testator, beyond a year and a day, has become insol- vent, and is making away with the estate, the Court will interfere to deprive him of the control of the property, and oust him from his office ; but the court has no power to name a sequestrator. Mackintosh et al, vs. Dease, S. C, 2 L. C. R., p. 71. Testament: — Vide Will. Tierce Opposition: — Vide Opposition. Tiers-detenteur : — The tiers detenteur is never presumed to bind himself personally. L'i Banque du Pev/ple vs. Gingras, S. C, 2L. C. R.,p. 243. Tiers-Saisi: — 1. The contestation of the declaration of a tiers-saisi does not require an affidavit. McKenzie et al. vs. Forsyth et al., 2 Rev. de Leg., p. 436. 2. A tiers-saisi may be admitted to make his declaration as such, after judgment rendered against him by default. Roy vs. Scott, 3 L. C. R., p. 80 ; and even after execution has issued against him, to levy the amount of such judgment. Andrews and Robertson, S. C, 1 L. C. R., p. 140. 3. Where the declaration of a tiers-saisi does not fully dis- close the facts of the case, the T. S. must pay the costs of the contestation. Matfaflane. vs. Delisle and Mackenzie et al., S. C, 3 L. C. J., p. 163. 310 TIE Tiers-Saisi : — 4. A tiers-said made a declaration to the effect that cer- tain moneys, collected under an assignment from one of the defendants, were placed in his hands for distribution among the creditors rateably, who should grant the defendant a dis- charge, and that the plaintiffs, respondents, refused to accept their proportion on these terms ; and upon this declaration he was condemned to pay over to the plaintiffs the balance men- tioned in the declaration, without notice of inscription or contestation of his declaration. And it was held in the Q. B. that such judgment was properly rendered, there being no evidence of the insolvency of the assignor, or of the existence of the creditors, and no application by the tiers-saisi to have the moneys paid into Court. McFarlane and Roy &■ al., Q. B., 7 L. C. R, p. 77. 5. The judgment against a tiers-saisi carries with it a right of execution, and confers rights on the seizing creditor which cannot be interferred with, by the other creditors of the defendant. Masson vs. Choall and The Merchant Assur- ance Company and Biron, S. C, 6 L. C. R., p. 169. And also Chapman vs. Clarke and The Unity Life Insurance As- sociation, S. C, 3 L. C. J., p.' 159. 6. The cashier, or other officer of a bank, receiving money as the attorney of another party, acts individually, and does not constitute the bank such attorney. So that a saisie-arrit in the hands of the bank will not attach moneys so paid. Lynch vs. McLennan 4" al. and The Bank of Upper Canada, S. C, 3 L. C. J., pp. 84 and 114, and 9 L. C. R., p. 257. But a bank, tiers-saisi, will be ordered to deposit in the hands of the prothonotary bonds or debentures of certain munici- palities placed by defendants in such bank. Perry vs. Milne and The Ontario Bank, T. S., and Milne, Comtg., 6 L. C. J., p. 301. 7. And a tiers-saisi with whom defendant had deposited notes - will be ordered to deliver them into the hands of the protono- tary. McKay vs. Demers and Fauteux, S. C, 1 1 L. C. R., p. 284. 8. The saisie-arrit is a mode of citing parties to appear, and a tiers-saisi whose declaration is contested becomes a defendant in the cause, bound to answer the contestation of his declaration, and liable to be condemned, alone or jointly, as the debt is due by him solely or jointly and severally with others. And the allegation of acts of dol and fraud common to the three tiers-saisis and to the defendant, com- mitted by concert and collusion between them, and carried out to the prejudice of the plaintiff, is sufficient, if proved, to warrant a joint and several judgment against them. McFarlane and WJiiteford, Q. B., 7 L. C. R., p. 318. 9. A declaration of a tiers-saisi cannot be contested after eight days from the making thereof. Warner vs. Blancliard and the Mayor, L. C. J., p. 120. 15. Genarally the debtor has an interest to contest the saisie-arrSt. La Banque du Peuple vs. Donegani, S. C, 1 L. C. R., p. 107. Vide Index, Saisie-Arret, No. 26. But a defendant has no interest in contesting the decla- ration of a tiers-saisi, on the ground that the goods of such tiers-saisi are under seizure for the amount admitted by him in his declaration to be due to the defendant, and that such a contestation will be dismissed on demurrer riled by the tiers-saisi himself. Constable Sr al. vs. Gilbert Sf al. and Simpson Sfal., S. C, 4 L. C. J., p. 299. Timber : — Advances on goods under a written agreement are made by A., a merchant in Upper Canada, to enable R., a con- tractor for lumber, to cut and convey to the Quebec market a quantity of timber upofi, the following conditiojis : that so soon as desired it should be considered as belonging to and be delivered to A., that A. should have the selling of the timber and account to B for any balance that might remain after a deduction of his disbursements and advances, includ- ing 10 per cent upon the latter with a commission of 2£ per cent, upon the sale, and it was held, that alter a delivery to A., before the timber reaches Quebec without fraud or collu- sion with B., the timber could not be attached at. the stiit nf B.'s creditors for the payment of his debts ; luit the balance, if any, after a sale by A., can alone be arrested in his hands under the process of the. Court. Vankoughnet rs. Maitland, S. R., p. 357. " 1 — Vide Delivery. u : — " License. « : — u Sheriff. 312 TIT to T R A Tithe -.— Vide Dixmes. Titre Nouvel : — i. To a seigniorial titre nouxel, it is not necessary that the seignior should be a party. Cuihbert vs. Tellier, 3 Rev. de Leg., p. 244. 2. A purchaser of a rente constitute cannot bring his action pour faire passer titre nouvel before putting the defendant en demeure, and in the event of his not doing so, he will be condemned to pay costs. Guenard vs. Guay, S. C, 4 L. C. it., p. 27. 3. A reservation contained in a titre nouvel or reconnais- sance nouvelle, between seignior and censitaire, is null and void, if the same be not inserted in the first title of conces- sion. Trigge . 186, S. V. A. R. 8. The detention of a vessel during the winter by strand- ing in the River St. Lawrence, on her voyage to Quebec, where she arrived in the succeeding spring, does not defeat the claim of the seamen to wages during the winter. The Factor, p. 183, S. V. A. R. Also, Rev. de L6g. p. 358. WAG 327 Wages ; — 9. Seamen going into hospital for a small hurt not received in the performance of his duty, not entitled to wages after leaving the ship. The Captain Ross, p. 216, S„- V. A. R. 10. In cases arising out of the abrupt termination of the navigation of the St. Lawrence by ice, and a succession of storms in the end of November, seamen shipped in England on a voyage to Quebec and back, to a port of discharge in the United Kingdom, entitled to have provision made for their subsistence during the winter, or their transportation to an open sea-port on the Atlantic, with the payment of wages up to their A-rival at such port. The Jane, p. 256, S.. V«A. R. ■ The master is not at liberty to discharge the crew in a foreign port without their consent ; and if he do, the mari- time law gives the seamen entire wages for the voyage, with the expenses of return, lb. Circumstances as a semi-naufra gium, will vest in him an authority to do so, upon proper conditions, as by providing and paying for their return passage, and their wages up to the time of their arrival at home. lb. It is for the Court to consider what would be most just and reasonable, as, whether the wages are to be continued till the arrival of the seamen in, England, or to the nearest open commercial port, say Boston, or until (ho opening of the navigation of the St. Lawrence, lb. Under the peculiar circumstances of this case, wages decreed, including the expense of board and lodging, until the opening of the navigation of the St. Lawrence, lb. 11. Three of the promoters shipped on a voyage from Milfcrd to Quebec and back to London, the euht remaining promoters shipped at Queb. c for the return voyage, and all had signed articles accordingly. The ship came in ballast to Quebec, and after taking in a cargo sailed from Quebec on her return voyage y and was wrecked in the Eiver St. Lawrence, and aba: doned by the m ister as a total loss. Held — 1. That the seamen who shipped at Milford were entitled to wages for services on the out war. I voyage from Milfori to Quebec, and one half the period that the vessel remained at Quebec, notwithstanding that the outward voyage was made in ballast ; 2. That the seamen who shipped at Quebec having abandoned, were not entitled to claim wages; 3. In cases of wreck, the claim of the seamen upon the parts saved, is a claim for salvage, and the quantum regulated by the amount which would have been due for/ wages. The Isabella, p. 281, S. V. A. R. 12. " The Merchant Shipping Act, 1854.," (17 and 18 Vic, c. 104, s. 183,) which came into operation on the 1st May, 1855, and by which wages are no longer to be dependent on the earniBg of freight, lb., in note, p. 288. 13. A promise to pay wages to a mariner in advance, on condition that he proceed to sea in a ship, is an agreement to pay so much absolutely upon the performance of the con- dition, whether the ship and cargo be afterwards lost on the voyage or not. Mullen vs. Jeffery, 1 Rev. de L6g., p. 362. 328 WAG Wages : — 14. The Court here will entertain suits for wages for foreign seamen against the master of their vessel lying here, and will notice the lex loci to ascertain whether there is a legal and subsisting contract to prevent the mariner from enforcing payment of what is earned. Carroll vs. Ballard, S. C, 12 L. C. R., p. 247. 15. In actions for wages by foreign seamen against the master of vessel, a foreign ship, evidence of the master, as to validity of the ship's articles, will be admitted. Patez et al. vs. Klein, C. C, 13 L. C. R., p. 433. 16. In a voyage such as mentioned in ship's articles, Russian seamen are bound to remain by the vessel until discharged at port of final destination, lb. 17. Where there are no ship's articles signed by a sea- man, the seaman may recover the amount of his wages for the time he has served on board the ship ; but the Court will not compel him to proceed to sea again with the ship to finish the voyage. The Lady Seaton, 3 Rev. de Leg., p. 420. 18. Under the provisions of the Merchant Shipping Act of 1854, a seaman who has contracted and signed articles for a voyage to British North America and back to a final port of discharge in the United Kingdom, is not entitled to recover for wages here, unless he be discharged with such sanction as is required by the Act. The Haidee, V. A. C, 10 L. C. R., p. 101. Not even on the ground of apprehen- sion of danger to life in consequence of the unseaworthiness of the vessel. The Pilot— Collins, V. A. C, 8 L. C. R., p. 99. 1 9. When a seaman shipped for a voyage " from Shields to Barcelona, thence to any other port or ports in the Mediter- ranean, Black Sea, Sea of Azof, or any port or ports on the coast of Africa, West Indies, United States or British North America, from thence to a port of final discharge in the United Kingdom or continent of Europe, the voyage to terminate in the United Kingdom, and not to exceed ;" and the ship went from Shields to Barcelona, and thence to Quebec to load for a final port of discharge iii England, it was held, — -that' no right of action accrued to such seaman for wages in Quebec, and that the Court had no jurisdic- tion in such action tinder the provisions of the 17 and 18 Vic, c. 104, sec. 190,— the voyage according to' ttie contract not terminating at Quebec ; arid it is not necessary to insert the probable duration of the voyage in the mariner's con- tract. The British tar—Chdrleson, V. A. C, 8 L. C. R., p. 272. 20. When a seaman shipped for " a voyage from London to Sunderland, thence to Rio Janeiro arid any ports in North or South America, West Indies, Cape of Good Hope, Indian or China Seas, Aiisiralasia and back to a final port of discharge in the United Kingdom or continerit of Europe, between the Elbe and Brest, the voyage' not to exceed twelve months ;" and the ship went froni Londbri to Sunder- land, thence to Rio Janeiro, thence to the Cape of Good Hope, thence to St. Helena and the Island of Ascension, and WAG 329 Wages : — thence to Quebec, it was held, — that the articles were bad, as being vague and uncertain ; that the voyage actually performed by the vessel in proceeding from the Cape of Good Hope across the Atlantic to the Island of Ascension ; whence, instead of returning to a final port of discharge in the United Kingdom or continent, of Europe, between the Elbe and Brest, she recrossed the Atlantic and returned to the continent of America, was not a prosecution of the voyage described in the articles, and amounted, in fact, to a deviation under the Merchant Shipping Act of 1854, sec. 190. The Prince Edivard— Diaper, V. A. C, 8 L. C. R., p. 293. 21. The description in the shipping articles as being one to North and South America, is too indefinite to answer the leading purposes for which the words were framed, under the words " nature of the voyage" in the Merchant Shipping Act of 1854. The Marathon— Horst, V. A. C, 10 L. C. R., p. 356. The description of the voyage in the shipping articles as being one to the United States, is sufficient, and the more general terms following, are to be construed as subordinate to the principal voyage in the preceding terms, and restricted to a reasonable distance from the United States, under the terms, " nature of the voyage," in the Merchant Shipping Act of 1854. The Ellersley — Vickerman, V. A. C, 10 L. C. R.,p. 359. 22. An agreement entered into by the master of a vessel with his crew, subsequent to the execution of the mariner's contract, to discharge and pay them their wages at a port other than and previous to the ships arrival at her final port of discharge, is not binding upon him. The Winscales — lnnes. The Police Court, Quebec, 8 L. C. R., p. 350. But when the articles of agreement are expressed thus. — " The several persons whose names are hereto subscribed, hereby agree to serve on board the said ship, in the several capaci- ties expressed against their respective names on a voyage from the port of Liverpool to Constantinople, thence if re- quired, to any ports or places in the Mediterranean and Black Seas, or wherever freight may offer, with liberty to call at a port for orders, and until her return to a final port of discharge in the United Kingdom, or for a term not to ex- ceed twelve months," are entitled to and can sue for their- wages in Quebec, and canr.ot be compelled to return in the ship to a final port of discharge in the United Kingdom. The Varuna, V. A. C, 5 L. C. R., p. 312. 23. Under the Merchant Shipping Act, of 1854, a seaman cannot institute proceedings for the recovery of his wages in the Superior Court, though process begin by capias. Smith vs. Wright, 6 L. C. R., p. 460. °4 The privilege of a clerk in a mercantile house for wage's, is confined to the wages due. Earl et al vs. Casey, S. C., 4 L. R., p. 174. 25 In an action for wages as a sailor on board a barge, the inspectcrand Superintendent of Police for the city of Montreal, has the same power as two^Justices of the J^eace. And as seamen have a lien and a right in rem for their wages, 330 WAG to WAR Wages : — the registered owner is liable for wages accrued up to the date of his purchase. The defect in the- summons to set forth that the barge was duly registered in the Province of Canada, is cured by the conviction which stated the barge to be duly registered in Lower Canada. Ex parte Warner, S. C., 11 L. C.R., p. 115. 26. A captain of a barge has no lien on the vessel for a balance of wages due to him. Jasmin vs. Lafantaisie, S. C, 13 L. C. R., p. 226,and 7 L. C. J., p. 119. 27. But in Mitchell and Cousineau Sf divers, it was held that seamen navigating a steamboat, navigating Canadian waters have a lien for wages, in preference to the mortgages due on the steamer. S. C., 7 L. C. J., p. 218. 28. But an advancer under the Act to encourage ship-build- ing, 1 9 and 20 Vic, c. 50, [C. Sts. C, c. 42,] to whom the reg- ister of the vessel has been granted, is not, therefore, neces- sarily to be deemed the owner of such vessel, so as to be liable for the wages of the seamen engaged in navigating it, or of the mechanics employed in completing or repairing it. Dickey and Terriault, Q. B., 11 L. C. R., p. 150. ■Vide Master and Servant. - " Prescription. ■ " Salary. Wall : — Vide Mur mitoyen. Warehouseman : — A paid warehouseman is liable for faute legere respecting goods placed under his charge. And if such store- man plead that his store was broken into and the goods carried away, the burthen of proof lies with him. And it is his duty in case of a robbery, to ascertain immediately the quantity of goods taken, and to endeavour to recover them or to inform the owner. Roche vs. Fraser Sf al., S. C. 7 L. C. R., p. 472. This case went to appeal, and in the Q. B. judgment of the S. C. was confirmed, and the court also held that a written order by the seller of goods, directing those in whose care the goods are, to deliver the same to buyer, amounts in law to a delivery of them. Fraser Sf al. and Roche, Q. B., 8 L. C. R., p. 288. Warranty : — 1. If the recital in a deed of warranty, indicate the purpose for which the deed is executed, its effect will be restricted to that purpose, though the dispositive portion of the deed is couched in general terms. The Bank of British North America vs. Cuvillier Sf al., S. C, 2 L. C. J., p. 154. Confirmed in appeal, where it was also held, that a deed of warranty will not cover a class of debts not con- templated by the parties at the time it was executed, though the terms of the deed be' so general as to purport to extend to all debts whatever. A deed of warranty stating that M. C. proposes to carry on business in Montreal and elsewhere, and that to enable him to do so, and to meet the engagements of a firm in liquida- tion of which he has been a partner, he would require bank accommodation ; and that the sureties were willing to become his security with a view of making the bank perfectly secure with respect to any debts then due, or which might there- after become due by him ; and then containing an agree- WAR 331 Warranty : — ment by the sureties to become liable for all the present and future liabilities of the said M. C, whether as maker, drawer endorser, or acceptor of negociable paper or otherwise how- soever, will not make the sureties liable for debts contracted f ti M ' C " by endorsin g °r procuring the discount of negotiable paper in his own name for the benefit of a firm f ^ j j became a member subsequent to the execution ot the deed of warranty, although such paper had been dis- counted at his request, and placed to his individual credit at the bank. A defendant may be a witness for his co-defend- ants, if he be not interested, or if his interest be removed bv a discharge. But this case having gone up to the P. C. on appeal, it was held, that the motive in a deed of warranty, which gives rise to a general engagement, will not limit the responsibility of the surety, or cut down the effect of the guarantee itself. 5 L. C. J., 57. v 2. The following words on the face of a policy of insur- ' ance imply an express warranty : " The steamer Malakoft now lying in Tate's dock, Montreal, and intended to navi- gate the river St. Lawrence and Lakes from Hamilton to Quebec, principally as a freight boat, and to be laid up for the winter at a place approved by the company, who will not be liable for explosions by steam or gunpowder." And if the steamer do not navigate but is burned in dock in the summer, it will be considered that the terms of the warranty have not. been complied with, and if a verdict condemning the company for the loss be rendered, the Court will on motion order the judgment to be entered up for the defendant -non obstante veredicto. Grant vs. The JEtna Insurance Com- pany, Q. B., 5 L. C. J., p. 285, and 11 L. C. R., p. 330, and for case, S. C, lb., p. 128. But this case having been taken to the P. C. it was there held, that where words in a policy of insurance import an agreement that a vessel shall navigate, they must be considered as a warranty and the engagement not having been performed the insurers are discharged, whether material or not. But where, as in this case, an in- tention only is expressed it does not amount to a warranty. P. C, 6 L. C. J., p. 224, and 12 L. C. II., p. 386. 3. A memorandum for the sale of coals, drawn in the same terms as a previous memorandum also for the sale of coals, gives rise to no implied warranty that the coals shall be of the same quality as those delivered under the former memorandum. Fry vs. TJie Richelieu Company, Q. B., 9 L. C. R, p. 406. 4. The garantie de faits et promesses stipulated in a deed of trans-port, carries with it the garantie that the debt existed at and before the date of the deed of transport. Donegani vs. Clioquette Sf al., 2 Rev. de Leg., p. 301. 5. A clause of garantie, in a deed of exchange, confers no hypothique, unless a specific sum of money be stipulated as the amount of such garantie. Ex parte Casavant and Le- mieux, opposant, S. C., 2 L. C. J., p. 139. 6. In case of the sale of an immoveable property by seve- ral vendors, who in one and the same deed merely sell their 332 WAR to WAT Warranty : — respective shares therein, which are defined, without any stipulation of solidarite, although for one price for the whole property, garantie is divisible among the several co-vendors. Marteau vs. Tetreau, S. C.,. 1 L. C. J., p. 245. 7. In an action en garantie d? emotion against joint sureties, the judgment must express that the defendants are jointly and severally condemned to guarantee the plaintiff*. Demers and Parant fyal., Q. B., 5 L. C. R., p. 36. 8. A security resulting from a lettre de garantie, for a limited amount, and for a time to be determined by its sub- sequent revocation, is not extinguished by the payment of an amount equivalent to the amount secured, paid by the debtor without imputation, if the security be solidaire. Masson fy al. vs. Desmarteau fy al., S. C, 3 L. C. J., p. 186. But otherwise if the amount be limited, and if it do not. appear that the caution meant to continue giving his secu- rity for a length of time, or beyond the occasion. Leblanc vs. Rousselle, C. C, 3 L. C. J., p. 191. 9. A letter of guarantee given to one of the members of a commercial firm, gives a right of action to the firm, if it appears that it was the intention of the parties, that the firm should give the credit, the member named not then carrying on a separate business to which such letter could apply. Rolland §■ al. vs. Loranger, S. C, 3 L. C. J., p. 249. 10. The security is not bound to pay the costs of dis- cussion, lb. " : — Vide Auctioneer. " : — " Insurance. Water : — The corporation of the city of Quebec cannot make any by-law imposing a water-tax upon any of the wards in the city, until it shall be ready to furnish to the inhabitants of such ward, a continuous and abundant supply of pure and wholesome water. Ex parte Dattimore, S. C, 11 L. C. R., p. 436. But in Failes and The Mayor, fyc, of Quebec, it was held, that the corporation of the city of Quebec is entitled to recover from the citizens a quantum meruit, on the value of the water delivered, in case the supply of water is not suffi- ciently continued or abundant to subject them to the pay- ment of the full rate. Q. B., 13 L. C. R., p. 335. Water course : — 1. The original prods-verbal of a cours d'eau must be homologated and not a copy. Ex parte Vincent, S. C, 6 L. C. R., p. 487. 2. The owner of a mill-site is entitled to a judgment affirming his right to the enjoyment of the use of the water •of a stream in its natural course, which has been diverted by a neighbour for the purpose of turning a mill upon his own land, although, at the time of the action, the party com- plaining had no mill, and did not require the use of the water. Bussiere vs. Blais, S. C, 7 L. C. R., p. 245. « : — Vide Banalite. " : — " Corporation of Montreal. Water power : — When two proprietors upon the same stream pos- sess water powers of which one cannot be improved without the destruction of the other, the first occupant must have WAT to W I L 333 Water power : — the preference, and is entitled to cause the dam of the other to be demolished. Dunkerleyvs. McCarthy, S. C, 8 L. C. R., Way : — The undertaking of a party in a deed of partition, to suffer a road-way upon his portion of laud, and to make and maca- damize the same to -the extent of thirty feet in width, is a servitude et charge reelle, for the preservation of which the party in whose favor it is stipulated, has a right to make an opposition afin de cJiarge upon a judicial sale of the property, Murray and Maepherson, Q. B., 5 L. C. It. , p. 359. Widow : — A widow guilty of unchastity, during the first year of her widowhood, is liable to be deprived of her dower, but a judgment to that effect, as to the rents issues and profits, will be prospective only. J vs. R , S. C, 7 L. C. •R., p. 391. Wife : — Vide Married Women. Wild Lands : — Vide -Possession. Will : — 1. An holograph will of personal and immoveable property is valid by the law of England, and probate may be made thereof accordingto the Provincial Statute 41 Geo. Ill, c. 4, [Gon. St. L. C, cap. 34, sects. 2 and 3.] Grant vs. Plante, S. R., p. 60. • 2. The birth of a posthumous child revokes the will of its father partially. Hanna vs. Hanna, S. R., p. J 03. 3. The condition of a devise to the Royal Institution for the advancement of learning, that it should within ten years cause to be erected and established a University or College bearing the testator's name, is = accomplished if a University of Royal and not of private foundation be esta- blished within that period. The Royal Institution vs. Des- rivieres, S. R., p. ,224, in notes. 4. It is essential to the -validity of a devise of real estate that the holograph will, in which it is contained, should be entirely written by the testator, and closed by : his signature. Caldwell and The King, S. R., -p. 327. 5. A testator at the time of his decease possessed of pro- perty belonging to the succession of his wife deceased, by an holograph will, bequeaths all the property of which he might die seized to his heirs and legatees, who were also his wife's heirs, under the penalty that if any of them contested this will their share in his -succession should be forfeited. He names two executors or trustees, and the survivor of them for the administration of all his property until a parti- tion. In the making of such partition he directs' his execu- tors to act for some of the legatees, who were minors, and for another who was married, without the authorization of her husband for that purpose being requisite ,^and whose share they should administer during her husbands lifetime, layingVr the rents, &c, and it was held that the will was Wlid- but that its dispositions can be carried into effect In v so far as they affect the succession of the testator, and Sthey could nit in any manner applyto the ^cc~ .of the testator's wife, of which the legatees were the he ars and of which they were, in law, seized from the day of her •death^and that one of the executors having renounced to 334 WIL Will:— the execution of the will, the other had saisine of the testa- tor's succession to carry the will into effect. Viger Sf al. vs. Pothier, S. R., p. 394. 6. Under the Quebec Act a will invalid according to the French law, and not executed according to the provisions of the Statute of Frauds, so as to pass freehold lands in Eng- land, will not pass lands in Canada, although it would pass copyhold or leasehold property in England. Meiklejohn vs. The King and Caldwell, S. R., p. 58 1 ; 2 Knapp's Rep., p. 328. 7. The debtor sued by the heirs of his creditor, cannot oppose, in his own name, to such demand, a will of the cre- ditor bequeathing this debt to a third party, notwithstanding the notice given to the said debtor by the executor that he would demand such bequest. And in such a case and in the absence of delivrance de legs, the heir may receive the amount of the debt and give therefor a good and valid dis- charge. Beneau vs. Frothingham, S. C, 3 L. C. R., p. 145. 8. A universal legatee cannot refuse to pay particular legacies, under the pretext of the insufficiency of the im- moveable property if he has not rendered an account of the estate or offered to give up the same ; and lie may in such case be condemned, to such payment individually and in his own name. Lenoir vs. Hamelin 2. But a writ of possession will not be granted against a person not a party to the suit, and any one so expelled may proceed by possessory action, and claim damages. Deles- derniers and Boudreau, Q. B., 9 L. C. R., p. 201. 3. Ifa defendant have held property more than a year and a day after the adjudication, plaintiff should proceed by a petitory action, and not by a writ of possession. Hart vs. McNeil, S. C, 4 L. C. J., p. 8. Writ of Summons : — 1. A writ of summons must necessarily accom- pany the declaration, and the appearance, of the defendant will not cover the want of it. Taylor vs. Senecal et ah, S. C, 3 L. C. J., p, 53. 2. A writ of summons requiring a defendant to appear before " Onr Justices of our said Superior Court," is bad. The summons should be to appear before a Court, and not before the Justices of the Court. Macfarlanevs. Delesderniers, S. C, 4 L. C. R., p. 25. But in a case oFMacfarlane vs. Beliveau, the reverse was held, and this seems to have been the view taken of the objection in the Queen's Bench.. 3 L. C..L» p. 306. WEI 339 Writ of Summons : — 3. A writ directed to " any of the bailiffs in and for the district of Montreal," without mentioning the name of the Court for which such bailiffs are appointed, is not null ; the writ on its face bearing evidence of having been issued from the Superior Court. Castle vs. Wrigley, S. C, 4 L. C. R., p. 28. 4. The writ is the beginning of the action, and therefore the jurisdiction of the Court is settled by the date of its issue, so that although signified to a person who has ceased to be within the jurisdiction of the Court, owing to the establish- ment of the new Districts, the action is well brought. Monty vs. Ruiter, S. C, 3 L. C. J., p. 26. Writs of Prerogative : — By the 12 Vic, c. 41, [C. S. L. C, cap. 88, sec. l,cap. 89, sec. 1,] the formalities required by the English law, in matters relating tu Writs of Prerogative, have been done away with. Parties styling themselves " citoyens notables" without taking the quality of "Fabriciens" or " Paroissiens" cannot maintain an application to oust a person who has usurped the office of Marguillier de VCEuvre et Fabrique. Crebassa et al. vs. Peloquin, S. C, 1 L. C. R., p. 247. Written Promise : — Vide Evidence. 22' NOTE OF JUDGMENTS IN APPEAL Eeported since the 1st of January, 1864, period up to which the above Index is brought, reversing, con- firming or modifying judgments reported prior to that date and mentioned in the Index. Auld and Laurent et al. Held, reversing the judgment of the S. C. : — That a pianoforte, belonging to a third party, but removed by him from the premises where it had been as partial security for the landlord's rent, can be reven- dicated by the landlord within eight days from its removal, and the proprietor of the piano, if it cannot be found, will be ordered to restore it to the house from which it had been taken, or pay the value thereof to the proprietor ; and this without bringing the lessee into the cause. 8 L. C. J., p. 146. Aylwin and Judah. Held, modifying the judgment of the S. C, as to costs : — 1. That in an hypothecary action brought by a plaintiff, cessionnaire of a debt, the signification of the action on the defendant, tiers detenteur, cannot be held as a signification of the transfer to the principal debtor. 2. That where a plaintiff brings his action as upon a debt •due and payable, and it appears from the titres de creance produced by himself that the debt is not due, (exigible) the action cannot be maintained. 3. That by the jurisprudence of Lower Canada, the cession- naire of a debt may maintain an action against the debtor without a previous signification to him of the acte of transfer. 14 L. C. R., p. 421. Boston and Lelievre. Held, dismissing the appeal : — That a judgment of the Superior Court rendered on a writ of Certiorari is a final judgment ; and that, in the case sub- mitted, no appeal from such judgment lies to the Court of Queen's Bench, as constituted in Lower Canada. 14 L. C. R., p. 457. Brown and Gugy. Held, confirming the judgment of the Q. B. : — 1. That obstructions to navigable rivers are public nuisances, and that no action by an individual lies for such nuisance, unless such individual suffers special and particular damage. 2. That, in the case submitted, the action en denonciation de nouvel auvre did not lie, inasmuch as such action can only be brought by a party claiming protection against a work commenced, and still in progress, by which, if com- pleted, he alleges he will be injured. 14 L. C. R., p. 213. 342 NOTE. Carden and Finlay et al. Held, reversing the judgment of the S. C. : — That to prove the payment of a promissory note, recourse must be had to the laws of England ; and the payment of such note may be proved by parol testimony. 8 L. C. J., p. 139. David and McDonald. Held, confirming the judgment of the S. C. : — That where the floors of a building have sunk, in consequence of the insufficiency of the timber used to sup- port the bridging joists and floors,~~the Architects and Su- perintendents and the carpenters and joiners employed in erecting the building are jointly and severally responsible for the damages incurred, and may be sued in one and the same action; and in estimating the damage allowance, will be made, in favour of the- Architects ani Contractors,' for what the work would originally have cost had timber been origin- ally used of a size and quality sufficient to support the bridg- ing joists and floors, and no allowance will be made to the proprietor for moneys paid by him to his tenants, for actual expenditure by them in removing out of the building during the time that the necessary repairs are being made. 8 L. C J., p. 44. Davis and Cushing. Held, confirming judgment of the S. C. :-r-l. That where in a deed of sale certain lots. of. lands in consideration of a certain sum paid down, and. " of the further "payment to be made forever thereafter, to the vendor, of " the one-tenth part, of all net profits to result after deduc- " tion of losses and charges of all mining operations, as the " purchaser shall carry on in and upon the said lots, the same . " to be ascertained to the 31st day of December, yearly; and " to be duly accounted for and paid over within the six " months next following." Such per centage is payable, not only on mining operations by the purchaser individually and alone, but also on all mining operations carried on by him in conjunction with other's, or in which he was, or was to be interested. 2. That an account rendered allowing only to the plaintiff, as representing the vendor, one tenth of the profits realised by the defendant personally from the mines, without regard to the amount realised or retained by a lessee or person actu- ally working or carrying on the mines, is contrary to, the meaning of the clause referred to, and that a new account will be ordered. 14 L. C. R., p. 288. Desjardins and La Banquedu People. Held, reversing the judgment of the S. C. : — That an adjudicataire of a land described as containing 400 arpents, whereas in reality it only contained 188 arpents, has an action against the plaintiff", to whom the proceeds of sale have been awarded and paid as mortgage creditor, to recover the excess of price, and in such case neither the sheriff" nor the defendant need be summoned, and no prescription short of ten years exists against such action. 8 L. G. J., p. 106. Greenshields and Plamondon. Held, reversing the judg- ment of the S. C. : — That a note given in excess of the com- position accepted hy the creditors generally, where it is not proved to be prejudicial to such creditors and is not com- NOTE. 343 plained of by them, is binding on the maker of such note.- 8 L. C. J., p. 194. Heugh et al. and Ross et al. Held, confirming the judg-- ment of the S. C. :— That in the case of an affidavit to obtain, a saisie-arrSt before judgment, the prothonotary must state in the jurat that the affidavit was sworn to before him, 14 L. C. E,., p. 429. And the omission of the words " before us" in the jurat of affidavit sworn to before the prothonotary of the S. C, is a fatal irregularity and a writ issued on such, an affidavit will be quashed on motion. 8 L. C. J., p. 96. Jafry et vir and the Trust and Loan Company. Held, re- versing the judgment of the S. C. :— That a rule for folle enche>~e against a married Woman, stparee de Mens must be served on her husband, a peine de nullite. 8 L. C. J., p. 29. Johnson and Archambault. Held, reversing the judgment of the S. C. : — That a strip of ground used for upwards of 30 years as a public lane or street will be held to be such, and a neighboring proprietor Whose access thereto has been pre- vented by a fence or other obstruction erected by another neighbouring proprietor has a right of action to compel the removal of such fence or obstruction. 8 L. C. R., p. 317, also 14 L. C. R., p. 222. Joseph and Castonguay. Held, reversing the judgment of the S. C. :— That the words "jowissahce" and " mufneit" in. a donation do not necessarily imply a mere usufruit,- where the whole context of the deed evidently points at a substitu- tion,, and where the enjoyment passes to several persons col- lectively, "leur vie durant" it accrues to the survivors. 8 L. C. J., p. 62. Leslie et al. and Molsons" 1 Bank. Held, reversing the judgment of the S. C. : — That the truth of the fuels sworn to in the affidavit may be attacked by an exception a la forme. 8 L. C. J., p. 1. Lloyd and Boswell. Held, reversing the judgment of the S. C: — 1. That in a action en licitation, the plaintiff, the proprietor of one half, having concluded fir ^portage between himself and the two defendants, the co^proprielorsof the other half, the defendants having separately acquit seed in these conclusions, and a judgment having been rendered in accor- dance therewith, the experts appointed to establish the divi- sibility or otherwise of the property, must confine themselves to reporting whether the property can or cannot be divided into two portions, the question of a further division between the defendants not having been raised. 2. That in such action, where two experts have been appointed to report on the divisibility or otherwse of a. property, and where they have not agreed in the expertise one repo ting the property divisible, and the other indivisible, the appointment of a third expert by the Court, nomme d^office, to decide between them must be made. 14 L. C. J., p. 274. McDonald et al. and David. The respondent employed architects to plan and superintend alterations to certain stores in the city of Montreal ; the appellants contracted to do the carpenters' work ; the floors sank from one to two inches after the completion of the works, and after the 344 NOTE. appellants had been paid. By the plans of the architects the joists provided were insufficient to support the floorings. And it was held, confirming the judgment of the S. C, : — ' That the architects and carpenters were liable, in solido, and could be sued in the same action for damages claimed by the respondent, by reason of the sinking of the floors. 14 L, C. R., p. 31. Monjeau and Dubuc. Held, confirming the judgment of the S. C. : — That the purchaser of an immoveable, one half of which was possessed by the vendor simply d litre (Pusu- fruit, may refuse payment of the price of sale, if he be threatened with eviction, and this without being obliged to accept the sureties offered by the vendor. 14 L. C. J., p. 344. Pappons and Turcotte. Held, modifying the judgment of the S. C. : — That the owner parindivis of aproperty charged with the payment of a rente, are not liable solidairement for the arrears thereof 8 L. C. J., p. 152. Perrault et vir and The Ontario Bank. Held, modifying the judgment of the S. C.= — That the assignment of a debt accepted by the notary, in the name of the assignee, is suffi- ciently ratified and perfected by the signification which is made in the name of such assignee, and takes effect from the day of such notification. •■ 14 L. C. R., p. 3. St-oddart et al. and Lefebvre. Held, confirming the judg- ment of the S. C. : — That when it is proved, in a petitory action, that the possession of the defendant's predecessors in the occupation of the land claimed, is antecedent to the date of the plaintiff's title, although the defendant may not be able to avail himself of possession in support of a plea of pre- scription of thirty years, for want of a title thereto, the action of the plaintiff will, nevertheless, be dismissed. 8 L. C. J., p. 31. Torrance and Allan. Held, confirming the judgment of the S. C. : — That where a bill of lading for goods placed on board a lighter in Montreal for transhipment at Quebec, on board the Ocean Steamer there contains a clause, that if, from any cause, the goods shall not go forward on the ship, ihe same shall be forwarded by the next steamer of the same line, the carrier is not liable for loss arising from a delay in transhipment, owing to the steamer being already full. 8 - L. C. J., p. 57. Wardle and Bethune. Held, confirming but reforming the judgment of the S. C. : — " That a builder is responsible for the sinking of a building erected by him on foundations built by another, but assumed by him both in his tender and contract, without protest or objection, although such sinking be attributable to the insufficiency of such foundations and of the soil on which they were built, and is liable to make good at his own expense the damage thereby occasioned to his own work. 8 L. C. J., p. 289. Note.— From 15 L. C. R., p. 60. In Jackson and FU'eau, it was held in Q. B., that a party will not be allowed to examine a witness twice without leave of the Court. V. Supra, Index, Vbo. Witness No. 2. APPENDIX Being an Index to Perrault's Precedents du Conseil Superiewr et de la Prevoste. Absentee :— The wife of an absentee allowed to appear, and seek delay for her husband, a mariner, to answer until his return from a voyage. Decouagne and Beaulieu, P. Pre. de la Prev., p. 47. " : — Vide Curateur. Acte sous seing prive :— 1. Judges forbidden to take notice of saisies-arrSts made on notes under private signature. Palin, Ve. Baine, and Guillemin, P. Pre. du Con. Sup., p. 22.* 2. Homologation of an award of arbitrators, rendered on a compromis sous "seing piivi. Ve. Cachelievre and Lemoyne, P. Pre. de la Prev., p. 51. Adjudicataire : — 1. Judgment discharging an adjudicataire from the necessity of depositing the price of his adjudication in the greffe, subject to his paying interest for the sum. Fournel and Dumont, P. Pre. du Con. Sup., p. 50. Vide Index Vbo. Pleading, Oppositions, No. 5. - 2. Judgment condemning an adjudicataire to pay the price of acquisition, and in default of his so doing ordering resale at his folle enchire. Lemoyen and Ve. Duverger, P. Pre. de la Prev., p. 13. Vide Index, Vbo. Folle enchere. Alimentary Pension:— Ve. Couture and Jean Couture Sf al., P. Pre. de la Prev., p. 77. Anticipation : — Respondent about to leave the province may be allowed to anticipate the delays of an appeal, on his oath administered d'office. Barolet and Galocheau, P. Pre. du Con. Sup., p. 13 ; also Lefeiwe and Sorbes, lb., p. 16. See also for an analagous procedure, Index Vbo. Pleading — In the Court • of Vice-Admiralty— No. 5 ; also Vbo. Capias, No. 37. Appeal: — 1. Dismissed; the appellants failing to prosecute. Main- ville and Parant, P. Pre. du Con. Sup., p. 12. Vide Index Vbo. Appeal to the Privy Council — Bond, No. 10, and Interlocutory Judgment, No. 4. 2. The respondent may be foreclosed from his right of answering an appeal. Landron and Gaillard, P. Pre. du Con. Sup., p. 12. Appeal maintained respondent refusing to appear. Guyon and Gravelle, P. Pre. de la Prev., p. 30. 3. Respondent about to* leave the country may be allowed to anticipate the delays of the appeal, on his oath adminis- tered d'office. Barolet and Galocheau,, P. Pre. du Con. Sup., p. 13 ; also Lefivre and Sorbes, lb., p. 16. * This was in obedience to the article lb'O of the Custom of Paris, now not in force. See my note on this article, p. 33, 2nd ed. 346 APPENDIX. Appeal : — 4. An appeal may be converted into an opposition and the parties be sent back to seek their remedy in the Privosti. Lalande de Gazopi, Ve. Aubert, and Les Dames Religieuses de VHdtel-Dieu, P. Pre. du Con. Sup., p. 15 ; also Maisonbasse Sf uz. and Ditpdre, lb., p. 28. 5. Appeal -from an interlocutory. Cussy fy others and Guigniire, is qualitis, P. Pre. du Con. Sup., p. 34. 6. Desislement (Pappel. Marchand and Vergeat,V. Pre. du Con. Sup., p. 39. Appearance : — Appearance of parties without assignation. Amariton fal., P. Pre. du Con. Sup., p. 11. Vide Index, Writ op ummons. Arbitres : — 1. Commercial cases sent to arbitration. Fournel and Bruguiere, P. Pre. de la Prev., p. 28 ; also Homy 8f al. and Desaunier, P. Pre. de la Prev., p. 56. But sometimes evoked to Con. Sup. to be judged au fonds. Partes and Deviennes, P. Pre. du Con. Sup., p. 59. 2. Their award declared null, plaintiff having treated them. Delorme and Monfle, P. Pre. de la Prev., p. 41. Assemblers de Parents: — 1. Injunction to the judges with respect to assemblies de parents. Daittebout and Charly, pire, P. Pre. du Con. Sup., p. 22. 2. In default of parents the advice of neighbours and friends is taken as to an intended marriage, Ruffio and Ruffio, P. Pre. du Con. Sup., p. 66. " : — Vide Tutor. Bail: — Vide Lease. Bail judiciaire : — Vide Tutor. Banalit£ : — Censitaire condemned to take his flour to be ground at the banal mill and the seignior ordered to furnish a practi- cable road. Roi and Turgeon, P. Pre. de la Prev., p. 71. Benefice d'inventaire : — Vide Inventory. Bill op Exchange: — 1. Drawer of a bill of exchange discharged until the holder has used diligence against payee. Lefevre and Sorbes, P. Pre. du Con. Sup., p. 16. 2. Drawej of bill of exchange condemned to pay it, and par corps. Delaise and Hiche, P. Pre. de la Prev., p. 14. 3. Endorser of bill of exchange discharged, the holder having made no demand until after the delays of the Ord. de Commerce. Havy and Perrault, P. Pre. de la Prev., p. 2fe. BorNage : — 1. Where an incorrect line of concession has been given to a number of habitants according to which however they have all worked for nearly 30 years such line will be main- tained. Peltier and Peltier, P. Pre. de la Prev., p. 7. Con- firmed in appeal. P. Pre. du Con. Sup., p. 7. Vide Index Vbo. Bornage, No. 2. 2. An interlocutor will be pronounced to decide on what lands abatis has been made and its value, and this by experts. Rouleau and Labrique, P. Pre. de la Prev., p. 31. 3. Bornage et arpentage with authority to Curi to swear the arpenteur. Anctil and Leclerc, P. Pre. de la Prev , p. 70. 4. Bornage et arpentage declared informal, the titles of the parties not being mentioned. Anctil and Grondin^ lb., p. 71. APPENDIX. 347 Cabaretiers :— 1. Action for a tavern debt dismissed. Rouittard and Bechamp, P. Pre. de la Prev., p. 66. Vide Index, Vbo. Hotellier, No. 4. 2. Cabaretiers fined for selling drink during divine service. Le Pncureur du Roi and Perche Sf al., P. Pre. de la Prev,, p. 67. Collocation :— Privilege given to eosts of suit, fees of office and per centage on deposit, Tache and Lacroix, P. Pre. de la Prev., p. 24. Vide Index, Vbo. Costs, No. 18. Commission rogatoire :— Addressed to Lieut. General of the Baillage of Bordeaux. Degravesand BeBe/court, P. Pre. de la Prev., p. 24. Communaute: — Veuve commune cannot be held liable for more than one-half of the arrears of rent de titres clericaux. Brassard Sf al. and Brassard, P. Pre. de la Prev., p. 78. Concession line : — Vide Bornage. Contempt: — Fine for mmque de respect a justice. Abel and Girard dit Breton, P. Pre. de la Prev., p. 71. Contract: — 1. The stipulation in a contract that one party shall alone keep up the fences and ditches will be set aside. Mercier and Besaunier, P. Pre. du Con. Sup., p. 52. 2. The enduits are included in a contract bearing " que la magonne sera faite fit parfaite." Berlinguet and Lambert, P. Pre. du Con. Sup. p. 65. 3. Interlocutor to determine if a barn has been built according to contract. Moufle and Delorme, P. Pre. de la Prev, p. 32. Cqntrainte par corps : — 1. Always accorded in commercial cases. Jayat and Marsal, P. Pre du Con. Sup., p. 21. Also Veys- siere and Butteau, lb. 27. Even against nconseiller Jayat and Marsal ; or a woman mwchande publique Corbitre and Laverdiire, femme de Chs. Bemars, P. Pre de la Prev., p. 26. lb, Obsei-vatiotis preliminaires, p. V. 2. Not granted against the widow of a merchant, con- demned to pay the commercial debt of deceased husband. Gouze and Lambert, P. Pre. du Con. Sup., p. 21 3. For the return of papers communicated. Maufait and Ve. Maufait, P. Pre. de la Prev., p. 27. Contrat de concession : — Censitaire condemned to take a contract if he has only a billet de concession, and a titre nouvel in case of his having already a contrat de concession. Roi and Girard, P. Pre. de la Prev., p. 67. Contrat executoire : — Defendant obliged to furnish grosse in execu- tory form of his contract. Baviene Besmeloises and Armand dit Maisons de Bois, P. Pre. de la Prev., p. 40. " :-r-Vide Acte sous Seing Prive. Costs : — Vide Collocation. ■ " Default. " Distraction. ■ " Surveyor. Curateur : — 1. Appointed to presumptive heirs absent. Les Reli- gieuses- de I'Hdtel-Bieu Petrs., P. Pre. de la Prev., p. 27. 2. Condemned is qualites to pay to plaintiffs seizing cre- ditors and opposanls. Pascaud Sf at. and Guigui&re, P. Pre. de la Prev., p. 40. 348 APPENDIX. Cure : — A cure can maintain a possessory action to prevent another priest from occupying his cure. Soupiran and Lechassew, P. Pre. du Con. Sup., p. 38. Damages : — 1. Abandon of a goat for the damages done by it. Nor- mand and Lajou, P. Pre. du Con. Sup., p. 16. 2. Condemned to return a stove and pipes let to defendant or to pay the price. Minetand Eker, P. Pre. du Con. Sup., p. 69. " : — Vide Courtant and Sert, P. Pre. de la Prev., p. 59. In appeal, P. Pre. du Con. Sup., p. 38. " : — Vide Reparation d'honneur. Debats de compte : — Haimard and Ye. Haimard, P. Pre. de la Prev. p. 35. Also judgment giving 250 livres provisionally. Haimard and Ve Haimard, P. Pre. de la Prev., p. 39. Vide Index, Alimentary Allowance, No. 3. Decouvert : — A neighbour is obliged to give decouvert to his neigh- bour and make fences and ditches. Bemers and Ve Laberge, P. Pjre de la Prev., p. 80. Vide Contract, No. 1. " : — Ditches. Decret: — Permission to sell, on three advertisements, real estate of so small value that it would not suffice to pay the costs of a decret. Bazil,~Pbtr., and Barbel, P. Pre. du Con. Sup. p. 9. See also general Reglement forbidding any inferior tribunals to permit such sales. lb. p. 14. Default : — 1. Order to re-summoh on first default. Lcdande de Gazon and Les Barnes Religieuses de V Hdtel-Bieu, P. Pre. du Con. Sup., p. 15. 2. Discharged on payment of costs of contumace. Maran- deau Sf al., Pets, and Boillard, P. Pre. de la Prev., p. 14. <• : — Vide Marcereau and Vidal, P. Pre. du Con. Sup., p. 8. *' : — " Hiche and Benis, P. Pre. de la Prev., p. 42. Confirmed in appeal, Benis and Hiche, P. Pre du Con. Sup., p. 31. " : — Lenormand and Gamier, P. Pre. de la Prev., p. 12. " : — Lemire and Romain, P. Pre. de la Prev., p. 29. Delay: — 1. Repit, limited on appeal. Corbiire and Guilmain, P. Pre. du Con. Sup., p. 20 ; also Rouillard and Roberge, lb., p. 47. 2. Repit dissallowed in appeal. Jayat and Marsal, P. Pre. du Con. Sup., p. 21. 3. Of execution, dissallowed in appeal. Havy and Lacroix fy al., P. Pre. du Con. Sup. p. 60. 4. Allowed on confession. Maranda and Gigon, P. Pre. de la Prev. p. 28. 5. Allowed payments being made by instalments. Lanoix and Betterose, P. Pre. de la Prev. p. 34. 6. Delay to bring in garant formel. Gagnon Sf ux. and Belanger, P. Pre. de la Prev., p. 37. DfiLiVRANCE de legs : — Action en delivrance de legs maintained Ve Rouel and Laurent, P. Pre. de la Prev., p. 77. Desaveu : — Vide de Belleville and Patrimoulx, P. Pre. du Con. Sup., p. 44. Descente sur les lieux : — Chalou and Montigny, P. Pre. de la Prev. p. 69. Distraction de frais : — Ve. Fornel <$- Perot and Gilbert English language Enquete *• !!! Erasures I* 2 Erreur de droit i Error Evidence Evocation "* Execution Moveables I 22 Immoveables ^ Executor I 2 * Exhibit Exhibition de titres Ex parte Experts Expropriation 126 Fabrique Factum Faits et articles. False pretences.. 127 129 TABLE OF REFERENCE TO INDEX. 361 PAGE. Fees 129 FELONY 131 Ferry Fidejusseur 132 Fisc • Floating lights Flogging FoLLE-ENCHERE Foreign Judgment 133 Foreign Law Foreign Ships 134 Forfeiture Forfeiture and Penalties Franc et Quitte Fraud Freight 135 Fugitives Gambling. 135 Game Laws Gardien government officer 137 Governor Habeas Corpus 137 Half pay 138 Harbour Master Harbour of Quebec Heirs Hire Honneurs dans l'Eglise. hotellier 139 Hypothecary Action Hypotheque Impotency 149 Improvements Imputation 150 Incidental Demand Incumbrances on Property Indians 151 Indictment Insanity Inscription de faux Instituteurs 153 Insurance Interdict 159 Interest 160 Interlocutory Judgment 161 Interpretation of Deeds 1 62 Inventory Joint-Creditors 162 Judge Judgment • 163 PAGE. Judicial Sale 164 Jurisdiction Jurors 167 Jury Trial 168 Justice of the Pea.ce 169 Justification 170 Kerr (Judge) 170 Lands 170 Landsman Larboard Law 171 Law Officers Lease . Legacy 172 Legatee 173 Legislative Assembly 174 Legislative Council Legitime Lesion Lessor and Lessee. Letters Patent 177 Libel 1 78 License LlCITATION . . . . Lien , Life-Rent 180 Lights (vues droites) : Lights (on Ships) Limitations Litispendence Lods et ventes 181 Look-out 182 Lost Lottery Loyers Machine 182 Mainmorts Malicious arrest........ 184 Mandamus Mandataire Manure 185 Marguillier Marine Insurance Mariners 186 Mariner's Contract 187 Marriage 188 Married Women 189 Master and Servant 191 Master of Ship Mate 192 Material Men 193 Measurement 362 TABLE OF REFERENCE TO INDEX. Members of the Legislature. . 193 Merchant Shipping Act of 1854. .. Merger .. ... . ....... ........ . 194 Mill-dam ... .-. . . ............. Minor .... . .-. Minority .... . ................ 195 Minute Misconduct..-.-. Misnomer Moneys ...................... Mooring. Motion 196 Moveables ................... .. Municipal Act. Municipal Councillors. . . ... . . 197 Municipal Councils Munioipal Debentures. ■■• Municipal Elections 198 Mur Mitoyen. 199 200 Navigable River Negligence . . New Conclusions New Trial Newspaper 201 Notary Notice 202 Notice of Action..... Notice of Motion . . 203 Novation. Nuisance 204 Nullite de Vente Number Obligation 204 Office Offences Offres Reelles 205 Onus probandi Opposition Option 210 Order Orders in Council Owners Pacte Commissoire . . 211 Parliament Partage Partnership Partners 213 Passenger 214 Paternit£ Patrone Penalty Peremption d'instance . . . . PAC8. Perishable Effects.. •>..-.. .... Slg Perjury ...... ................ ,, Pew. i Pilot. . ... . ... ...... ... . .... . . 217 Pilot Acts ..:. *.. 218 Pleading and Practice.. .*.... ., •Action^ 219 Declaration . .- 221 Appearance...... ............ 222 Preliminary Pleas . .......... . 223 Pleas to the Merits : Demurrer ... . 226 Exceptions and General Issue: Answers and Replications. .... 229 * Foreclosure 230 Articulation of Facts r ....... . 231 Inscriptions ................. Interventions 232 Oppositions ..,.-. Collocation 233 Saisie- Arret ................. .=. Miscellaneous . . In Court of Vice- Admiralty. . . . 234 Port 236 Possession... Power of Attorney 237 Prerogative. Prescription 238 Presumption 243 Preuve avant faire Droit Primrose Privilege 244 Privileged Communication Privity of Contract •■« Proctor Prohibition 245 Prohibition to alienate Promesse de Vente . . Promissory Note .'. Protest 252 Prothonotary Proxies 253 Public Officer ••• Quantum meruit 253 Quebec Queen's Bench 254 Quo Warranto Railway Cases..... 254 Ratification of Title 256 Rebellion a Justice 258 Receipt in full Recel •• TABLE OF EE¥#BElNdE TO INDEX. 363 RffcOGNlZANcEV.V. . ...V.'. ....'. . 558 Recorder. . .". . ... .... . ; i'.v . .v. 259 rjbjPU'feMent . , . . v. . ..v. .v. v. 259 r§c'usation . . . ... .v.y.v.v.y.v; .. Registers..*. . . ... ..... ... . . ... . . Registrar ... . -.-. . .... ... .'. ... 260 registration .. . ... v.y.. ...... . , Registry of Vessel-s. .. . ...... 261 R|SNTeGRANDE ... . . .y.y.y. . ... . . . Relationship .............. v. . . . Release.. ...:.. ....... . ....... 262 Religious Congregation ....... . . RfiMERE .Y.Y.Y. R*eMisey. . ....'. ............... Rente Constitute 262' ■ Renunciation .. . . . ...... ...... Reply ;........... 263 Reprise d'instance Reprises Matrimoniales Requete Civile Requete libell£e Res judicata 26-1 Retrait Conventionnel 265 Retrait Lignager - Return-day Returning Officer Revendication Riparian Proprietor Rivers Road Road-tax Roman Catholic Rule Rule of Practice Rule of the Sea 270 Rules and Regulations....... 271 Saisie-Arret 271 Saisie-Gagerie 277 Saisie-Revendication 278 Salary 280 Sale 281 Sale of Ship 284 Salvage Savings Bank 285 ScELLE 286 School Acts School Commissioners School Municipality 287 Scire Facias Season of Navigation Secretary-Treasurer Security for Costs 288 Seduction 289 Seigniorial Bights 266 267 268 -,-*..- PAGE. SfePA'RATION DE BIENSi . . . . ...... 291 Separation de corps et DEBn§Ns. 292 Sequestre .. Serment Decisoire. ......... . . . . Service ...... .....v. ......... ■<■. Servitude -. ... . .-. .- •• .• 295 Sessions..-.. . . .v.. . .....-.,.-. ... . . Shareholders 296 Sheriff . : . . . ..... .«»..,.. ; . ... .. Ship . . . ... ..v.v. ...... . . . 299 SIGNIFICATION . i Simulation ....- ...... 300 Seander; ;..-............ ....... .. South Se-av. . .». .... .... 301 Starboard. ......... . ... . .... . State -Paper.. .-.. .......v.. .v.. .. Statute.. . ... . . . . . ..... ...... Statute labor Statute of limitations 302 Statutes Steamer Steam Navigation Act 303 Steam Tugs Steward 304 Student subpcena • Subrogation Substitution Sub-tenant 305 Succession 306 Superior Court Surety Surrogates 307 Surveyor • Sword Table of Fees 307 Tacite Reconduction. 308: Taxes Tavern-Keepers 309 Tavern Licences. Testamentary Executors Tiers detentetjr » Tiers-Saisi » Timber — 311 Titre-Nouvel 312 Toll-Bridge Tradition •• Transaction 313 Transfer 314 Transport Trespass • • Trinity House 315 Trouble 31t> True Bill 364 TABLE OF REFERENCE TO INDEX. PAGE. Tutor.. 316 TTctor to a Substitution 318 Union-Jack 318 Usufruct. . Usufructuary 319 Usury , . Vendee , A 320 Verdict Verification of Writing 321 Vessel Vice-Admiral Vice-Admiralty Court 322 Vice Redhibitoire 325 Vis Major - Voyage PASS. Wages 326 Warehouseman 330 Warranty Water 332 Water-course Water-power Way 333 Widow Will Witness 336 Wreck 338 Writ of Possession Writ of Summons Writs of Prerogative 339 Nate of Judgments in Appeal re- ported 'since 1st January, 1864.. 341 TABLE OF REFERENCE TO APPENDIX. \ PAGE. Absentee 345 a.cte sous seing prive adjudic at aire . . Alimentary Pension Anticipation Appeal Appearance 346 Arbitees Assemblies de Parents Banalite 346 Bill of Exchange BORNAGE Cabaretiers 347 Collocation Commission rogatoire Communaute Contempt , Contract contrainte par corps Contrat DE CONCESSION CONTRAT EXECUTOIRE Curateur ' Cure 348 Damages . , 348 Debats de compte DfiCOUVERT D£cret Default Delay DfiLIVRANCE DE LEGS Desaveu Descente sur LES LIEUX Distraction de frais Ditches 349 DlXMES Donation Douaire PAGE. Eno.ue¥E .... 349 Evidence . . Evocation Execution. Exhibits Expertise Extra work Factures 350 Franc et quitte Gardien 350 350 Heir . . . HuiSSIER Injure 350 Inscription -en faux Interdict Intervention . . Inventory Jurisdiction 351 Lease 351 Legitime Lessor Lods et Ventes 352 Marguilliers.. 352 Maritime Marriage Marriage Contract Master and Servant Minor MUR MlTOYEN Notary . ; t . . . 352 Offres t 353 •366 TABLE OF REFERENCE TO APPENDIX. PAGE. Offres reelles 353 Pain Beni 353 Paternit£ Penalty Prescription Procedure Procureur Promissory Note Ratification 354 Rebellion a Justice Recision Renonciation Rente constitute . . Rente fonciere Rentes Seigneuriales Reparations Reprise d'Instance Retrait Lignager PASS. Saisie 355 Security Seigniorial dues Semin aire de Quebec Separation de biens Separation de corps et de biens. , . SERMENT DfiCISOIRE, Surgeon Surveyor . . 356 Tailles 356 Testamentary Execution...... .. Tiers-Saisi Trespass Tutor j Tutorship 357 Verification of Writing 357 Wages.. 357 Widow CONCORDANCE*. Abatis, 346. Absentee, 1, 5, 89, 128, 164, 209, 345. Absentee heir, 347. Absentee proprietors, 31. Abus, 352. Acceptance, 2, 44, 105, 144, 306. Acceptor, 44, 116. Accession, 2. Accident, 65, 68, 236. Account, 264, 299, 349, 352. Accountant, 126. Acmdssement, 2. Acquereur, 145. Acquets, 73, 107. Act of Parliament, 130. Acte d'heritier, 3, 107, 114. Ante de tutelle, 260, 318. Acte entre vifs, 2. Acte sous seing prive, 3, 345. Action, 3, 10,241. Action en garantie, 3, 4, 84, 257, 260. Action pro socio, 213, 286. Actio pauliana, 10. Addition, 221. Adjudicature, 9, 11, 97, 132, 133, 190, : 204, 233, 282, 299, 342, 345. Administrator omnium bonorum, 14. Admiralty, 11, 134, 138, 186,204,210, 211, 214, 223, 237, 258, 322. Admiralty Court, 11, 12,65,72, 91,318. Admission, 10, 13,30, 75, 116, 120, 127, 212, 227, 243. Adultery, 13, 14, 292. Admixture, 279. Advertisement, 1, 5, 27. Advocates, 14, 131, 232, 239, 353. Affidavit, 21, 29, 30, 37, 48, 72, 81, 97, 137, 153, 165, 166, 208, 216, 229, 231, 250, 266, 270, 271, 272, 273, 274, 276, 27S,, 280, 309, 321, 343. Afternoon, 249. Agency, 293;. Agent, 4, 14, 15, 43, 78, 83, 115, 117, 131, 155, 191,220. Agreement, 3, 6, 76, 113, 134, 145, 157, 162, 168, 186, 193, 204, 221, 244, 255, 280, 299, 306, 314. Ainesse v. Droit cfainesse. Alien, 17. Aliments, 19. Alimentary allowance, 17, 18, 55, 346, 355. Alluvion, 2. Ambiguity in deeds, 162. Ameliorations v. Improvements. Amende, 355. Amendment, 85, 111, 112, 220, 221, 222, 235. American colonies, 301. American gold, 55. American Presbyterian Church, 260. Ameublissement, 18, 73, 107, 142. Amiables compositeurs, 16, 28, 29. Answer, 223, 229. Anticipation, 345. Appeal, 3, 19, 62, 85, 86, 103, 110, 216, 264, 302, 321, 341, 345, 348. Appearance, 26, 222, 346. Ajypdes, 4, 109. Appendix, 27. Apprentice, 27. Arbitration, 15, 27, 154, 162, 346. Arbitrators, 27, 29, 125, 164, 345, 346. Architect, 29, 40, 46, 342, 343. Argumentative, 227. Arpentage, 346. Arpenteur, 346. Arrears, 18, 344. Arrears of alimentary pension, 18. Arrears of interest, 142, 160. Arrest, 79. Arson, 316. Articles, 187. Articulation of facts, 30, 231. — — : ! jfc . - 1 ; * Page 345 and subsequent pages refer to the Appendix, which contains the cases reported in termult'a Precedent) de la Privosti tt du Gonseil Superior. 368 - CONCORDANCE. Artisan, 70. Assault, 30, 31, 80, 94, 131, 2*20, 315, 325. Assemblee de parents, 346. Assembly v. Legislative Assembly. Assessments, 31. Assessment roll, 63. Assessors, 32, 70. Assignation, 346, 353. Assignees, 2, 32, 34, 41, 42, 50, 98, 146, 159,213,314,344. Assignment, 10, 32, 55, 98, 138, 344. Assignor, 32, 33, 146. Assumpsit, 35, 121, 247, 253, 285. Atermoiement v. Composition. Attachment, 37, 85, 96, 112, 276, 280. Attachment of ships, 12, 235, 299. Attorney, 14, 20, 23, 24, 26, 37, 39, 83, 84, 85, 86, 103, 104, 131, 151, 161, 205, 215, 233, 235, 239, 268, 275, 287, 294, 297, 300, 353. Attorney General, 38, 177. Auction, 38. Auctioneer, 35, 38. Auteurs, 118,242,260. Aval, 39. Aveu, 13, 129. Avis de parents, 316. Avocat v. Advocate. Award, 27, 28, 164, 345, 346. Bail, 38, 39, 116, 137,268. Bail bond, 39, 77, 102. Bail, 181. Bail dferme, 240, 355. Bail emphyteotique, 146, 181, 255. Bail judiciaire, 356. Bailee, 56. Bailleur defonds, 33, 40, 141, 142, 145, 147,148,211,283. Bailiff, 35, 41, 59, 62, 79, 122, 123, 124, 132, 151, 153, 218, 258, 275,293,294, 317, 339, 350, 353. Banaliti, 289, 290, 346. Banal mill., 346. Banc d'Eglise v. Pew. Banc d'honneur, 184. Bank, 221. Bank of Montreal, 41, 318. Bankrupt, 147,313. Bankruptcy, 41, 42. Bankruptcy Ord., 258. Bank Stock, 318. Bankers, 247. Banns, 90. Baptisms, Certificate of, 1 17. Baptisms, Registers of, 259, 260. Bar, 43. Bar, (Jin de non recevoir,) 159, 228, 240. Barbadoes, 48. Barrister v. Advocate. Batard adulterin, 335. Batardise, 96. Beaches, 42, 43, 266. Bed of River, 7. Benefice d'inventaire, 351. Berth, 65, 69, 316. Bet, 43. Betterments v. Improvements. Biens meubles v. Moveables. Biens nobles, 109. Bigamy, 13, 43. Bill of Exchange, 43, 116, 306,346. Bill of Lading, 44, 57, 85, 91, 99, 135, 158, 186, 266, 344. Bill of Particulars, 44, 269. Billet de concession, 347. Boarding-house, 293. Bon, 4>5, 221. Bond, 19, 20, 21, 45, 55, 253, 310. Bond in appeal, 253. Books of account, 45, 118, 122. Boom, 200, 267. Bornage, 7, 45, 334, 346. Bottomry bond, 160. Boundaries, 7. Boundary posts, 356. Breach of promise of marriage, 120. British subject, 17. Brevet, 139, 241,245. Brevet d'invention v. Letters Patent. Bribery, 199, 248. Broker, 46, 247. Brothel, 46, 177. Brother, 113. Builder, 40, 46, 344. Building Societies, 47, 83. Burials, Registers of, 259, 260. Burial service, 63. Burning land, 92. By-law, 31,47, 63, 65, 80, 81, 155, 198, 254,268,315,316. By-Road, 48. Cabaretiers, 347. Cabin, 214. Canada Tenures Act, 108. Capias, 22,- 39, <44, 48, 166, 195, 225, 314, 329. Capias ad satisfaciendum, 43, 56. Capitation tax, 304, 309. Cargo, 192. CONCORDANCE. 369 Carriage-builder, 178. — 'Carriers, 44, 57, 165, 193. Cashier, 221. Catholic, Roman, 104, 268. Cause of action, 165. Caution, 203. Caution solidaire, 245, 246. Cedant, 33. Cens et rentes, 265, 291 350, 355. Censitaire, 8, 43, 290, 291, 312, 346, 347. Certificate, 59, 153, 170, 211. Certificate of bailiff, 35, 60. Certificate of baptism, 236. Certificate of marriage, 236. Certificate of registrar, 87, 145, 177, 252 257. Certiorari,'^, 47, 60, 79, 80, 276, 341. Cession, 62. Cessionnaire, 33, 42, 149, 305, 314, 320, 341. Check, 251. Children, 173. Chirography creditor, 256. Chases precieuses, 318. Church, 216. Churches, 60, 62, 80, 210. Church of England, 63. Church of Rome, 104. Church of Scotland, 260. Churchwarden v. MarguUliers. Cierge, 353. Circuit Court, 16, 19, 20, 21, 23, 63, 121. City Councillor, 63. Civil death, 63, 215. Civil law, 314. Claire et liquide, 30, 74, 75. Clergy lot, 170. Clerical error, 222, 301. Clerk, 118, 244. Clerk of Appeals, 131. Cloture d'embarras, 45. -Code Marine, 64. Codification Act, 259. Co-heir, 352. Coins, 90. Collateral security, 251, 252. Collision, 11, 12, 64, 116, 167, 180, 193, 205, 218, 252, 271, 302, 303, 304, 316, 324 325. Collocation, 70, 233,253, 347. Cpllusion, 8. Colours, 323. Commencement de preuve par lent, 13, 88,112,120. 24 Commercial cases, 346, 347. Commercial matters, 70, 112, 113, 168. Cominatory clause, 27, 70, 171, 217. Commissaire d la saisie reelle, 350. Commission 71. Commission rogatoire, 72, 111, 116, 337, 347. Commissioner, 71. Commissioner's Court, 60, 72, 273. Commissioners of Public Works, 29, 172. Commissioners for building churches, 60. Com missions, 72. Comi.iitment, 174. Common socage, 87, 107, 108, 110, 140. Communaute, 4, 18, 72, 107, 124, 143, 173, 189, 291, 347. Comparison of writing, 357. Compensation, 20, 30 73, 231, 241. Competency, 115. Complainte, 75. Composite firm v. Partnership. Composition, 14, 34, 35, 118,307, 342. Compromis, 70, 71. Compromise, 313. Compte de tutelle, 299. Concession, 75. Concubine, 14. Condition, 57, 59, 154, 162. Condition precedent, 76. Condition resolutoire, 36. Confession of judgment, 76, 88, 283. Confessions, 80, 128, 163, 348. Confirmation of title, 76. Conflicting decisions, 77. Conge de defaut, 77. Conquets, 336. Consent, 77, 78, 230, 277. Consideration, 33, 34, 77, 241,248,300. Consignee, 77, 156, 165, 193. Consignment, 306. Consignor, 44, 157. Consolato del mare, 77. Consolidated Statutes, 81. Consular jurisdiction, 113. Contempt, 37, 4.0, 60, 77, 85, 266, 315, 347. Contenance, 342. Contestation of declaration of Tiers' Saisi, 309. Contestation of oppositions, 257. Contract, 35, 78, 133, 179, 187,225, 262, 347. Contract of sale, 279. 370 CONCORDANCE. Contract of marriage, v. Marriage con- tract. Contrat de concession, 347. Contrat executoire, 347. Contractors, 15, 16, 78, 94, 113, 342, 258,307, 347. Contrainte par corps, 6, 13, 56, 78, 89, 93, 119, 135, 190, 256, 277, 346, 350. Contumace, 348. Conviction, 13, 60, 79. Co-partners v. Partners. Co-partnership, v. Partnership. Copy of an exception a la forme, 224. - Copy, Registrar's, 145. Corporation, 4, 82, 225, 254, 263, 264. Corporation, Foreign, 83. Corporation of Quebec, 309. Corporators, 4, 115. Co-proprietor, 7, ' Costs, 5, 19, 20, 24, 30, 34, 45, 46, 62, 65, 79, 81, 83, 89, 103, 115, 125, 133, 134, 144, 153, 185, 187, 205, 210, 219, 220, 222, 231, 232, 244, 248, 262, 266, 270, 297, 307, 312,321, 326, 347, 353. Costs of contestation, 309. Costs of distribution, 282. Costs of sale, 282. Coupe de bois, 147, 295. Coutume de Paris, 238, 239. Court houses, v. Tax for. Court-martial, 63, 137. Court of Appeal, 110. Courts of Sessions, 12, 180. Cousin-german, 114. Creditor, 70. Crew, 66, 69, 116, 258. Crimes and misdemeanors, 77. Criminal information, 87. Criminal law, 87. Crown, 9, 17, 42, 43, 75, 82, 132, 160, 220, 237, 242, 261, 266, 267, 287. Cross, Signature by, 39, 76, 88, 117, 120, 245, 246. Cullers, 88. Cumulation of actions, 89. Curator, 1, 5, 89, 117, 159, 289, 347. Cure, 90, 104, 127, 152, 185, 217, 348. Currency, 90. Customary dower, 3, 73. Custom of trade, 90. Custom of tribe, 151. Customs duties, 91. Cutting wood, 356. Dam, 267, 333. Damages, 30, 43, 65, 66, 68, 69, 70, 71 73,74,79,83,84, 90, 91, 101, 115, 116, 122, 132, 138, 160,168, 175,180, 185, 188, 192, 199,200,201,202,213, 214, 217, 219, 220, 226, 227, 228,238 239, 244, 254, 256, 259, 267, 277, 281, 284, 300, 302, 320, 321, 336, 338,342, 348, 351. Damages, stipulated, 170. Date, 150, 241. Batio in solutum, 181. Day, 69. Days of grace, 44. Death, 193,215. Debentures, 310. Debentures, Fire, 261. Bebiteurs solidaires, 96. Bebats de compte, 5r, 848. Bicheance, 96. Decheance d'usufruit, 318. Declaration, 96, 111, 221, 228. Declaration de paternite, 114, 168, 228, 289, 353, 354. Declaration of Tiers-Saisi, 289. Declinatory exception, 234. Beconfiture, 10, 42, 96, 226, 250, 278, 297, 318, 349. Becfluvert, 348. Becret, 97, 133, 175, 204, 256, 262, 282, 312, 348. Deeds, 145, 162, 202. Deed of sMe, 257. Default, 27, 97, 164, 223, 231, 309,348. Befaut de contenance, 9, 11, 163. Befense au fonds en droit v. Demurrer^ Befense aufonds en fait, 221. .._ Beguerpissement, 98. Delaissement, 19, 98. Delay, 203, 250, 257, 311, 345, 348. Delay, v. Repit. Belibere,229. Belirium tremens, 188. Delit, 285. Delivery, 59, 98, 106, 236,279,280, 281, 312. Delivrance de legs, 100, 334. Bemande, 74. Demand of plea, 288. Dementia, 349. Demurrage, 101. Demurrer, 4, 19,20, 23,26,112,209, 221, 226, 231, 232,239, 248,254,311, 336. Beniers d' 'entree, 181. Denonciation de nouvel asuvre, 341. CONCORDANCE. 371 Deplacement, 196, 313. Deposition, 10?, Ill, 112,119, 161,337. Depositor, 118,286. Deputy, 15. Deputy Sheriff, 102. Desaveu, 37, 102, 348. Descente stir l/s iieux, 348. Desertion, 326. Desistement (Tappet, 346. Destitution de tutelle, 3. Desuetude, 102, 315. Detenteur, 244. Director, 127. Disbursements by Sheriff, 37. Discretion, 102. Discussion, 19, 102, 141, 223, 332. Dissentients non-resident, 286. Dissenting Minister, 259. Disrating, 102. Distraction de frais, 84, 85, 102, 348. Distribution, 103, 164, 195,209,233, 253,270. Disuse, v. Non-user. Ditch, 349. Dixmes, 8, 104, 185, 349. Dividends, 318. Divine Service, 347. Divisibility, 349. Dol, 10, 242, 310, 313. Domaine direct, 172. Domaine Seigneurial, 104. Domaine utile, 172. Domicile, 1,2, 26, 27, 86, 104, 132, 163, 189,190,221,249,251,277,291,293, 294, 316. Domicile, last, 353. Domicile matrimonial, 14, 72, 283. Dominus litis, 34, 37, 235. )> Donataire v. Donee. Donataire mutuelle, 357. Donation, 2, 10, 18, 34, 71, 105, 144, 147, 159, 181, 232,245,261, 262,283, 343, 349. Donee, 146, 351. Donnmr d'aval, 39, 249. Dormant partner, 213. Dot, 107. Douaire, 3, 18, 107, 110, 178, 189, 191, 242, 333, 349. Douaire, a titre de, 7, 219. Double Insurance, 155. Drawer, 44, 346. Dressing-case, 58. Drink, 139. Droit d'ainesse, 108. Droit d'habitation, 105. Droits konorifiques, 109, 216. Droit de piche, 43. Droit de retention, v. Lien. Drunkenness, 105, 186. Duplicate, 3. Easter, 104. Ecclesiastical decree, 60. Eight day's, 278, 310, 311, 341. Election, 43, 109. Election agent, 110. Election of domicile, 123, 153. . Emphyleose, 110. En demeure, 210. Endorsalion, 44, 245. Endorsation in blank, 247. Endorser, 44, 74, 115, 116, 118, 121, 156,221,246,250,346. Enduits, 347. England, 48, 314. English admiralty law, 64. English civil laws, 7, 102, 110. English language, 110, 218. English rules of evidence, 70, 113. EnmUe, 44, 111, 115, 161, 209, 219 231, 338, 349. Entrepreneur, 226. Envelope, 293. Envoi en possession, 89. Erasures, 112, 152, 226, 272. Erreur de droit, 112, 291, 313. Erreur sur le fait, 313. Error, 4, 5, 86, 103, 112, 118, 163, 204, 220,221,235,264. Evidence, 13, 20, 22, 28, 44, 72, 112, 134, 145, 161, 169,173,181,200,234, 242,259,263,321, 337, 338, 342,349. Evocation, 86, 121, 346, 349. Exception, 112. Exception a la forme, 7, 22, 23, 38, 53, 85, 89, 97, 150, 152, 221, 223, 224, 225, 252, 263, 266, 271, 275, 278, 343. Exception declinature, 223. Exception dilatoire, 85, 223. Exception peremptoire, 194, 257. Exclusion of community, 291. Execution, 79, 85, 86^,121, 122, 195. 213, 258, 309, 337, 349. Executive Council, 193. Executor, 18, 74, 102, 125, 144,292 309, 336. Exhibit, 125, 269, 349. Exhibition de titres, 125. Ex parte, 27, 125, 210, 230. Expenses, 128. v 372 CONCORDANCE. Expertise, 40, 125, 150, 343, 349. Experts, 20, 125, 154, 343. Expropriation, 126. Extra pilotage, 218, 284, 323. Extra work, 349. Fabriciens, 339. Fabrique, 115, 127, 158, 184, 217, 338. Fact, 227. Factum, 24, 127. Factures, 350.. F aits, et articles, 13, 95, 116, 120, 127, 128,161,212,239,248,320. False imprisonment, 30, 93, 227, 238, 300,315,325. False pretences, 129. Farmer, 238. Father, 1 14, 289. Faux, 114. Fees, 37, 61,79, 83, 84, 85, 110, 129, 162, 202, 232, 298, 302, 347. Felony, 30, 40, 220, 262. Fence, 45, 184. Fences and ditches, 238, 347, 348. Fence of pickets, 352. Ferry, 213. .Fiat, 37, 51. Fideicommis , 305. ■ Fidejusseur, 132, 139. Fieri facias, 122, 296. Figures, 33, 55, 221, 268, 294. Final judgment, 53, 263, 341. Fin de non-recevoir, 14. Fire debentures v. Debentures. Fire engine, 197. Firm v. Partnership. Fisc, 132. Fishery, 75. Fishing, 43. Floating lights, 65, 132. Flogging, 132. Flottahle, 200. Folle enchire, 132, 190, 343, 345, Forcible entry and detainer, 151. Foreclosure, 111, 112, 230, 288, 345. Foreign country, 48, 83, 114. Foreign insurance company, 47, 293. Foreign judgment, 133. Foreign law, 133. Foreign plaintiff, 289. Foreign seamen, 328. Foreign ships, 12, 134. Foreign state, 135, 180. Forfeiture, 12, 134. Forfeiture of bail, 40. Forfeiture and penalties, 167, 322. Forgery, 63, 250, 321. Forma pauperis, 234, 289. Forty-shillings sterling, 321. Four days, 288. Fournir etfaire valoir, 98. Franc et quitte, 134, 350. France, 314. Fraud, 4, 8, 10, 33, 34, 42, 74, 91, 134, 147, 158, 164, 182, 191, 202, 226, 248, 258, 261, 285, 299, 310, 313, 317; Fraudulent sale, 10. Free and common socage, 7, 8, 292. Freight, 44, 59, 73, 135, 325, 326. Fugitives, 135. Funeral service, 22. Furniture, 177. Gage, 34. Gages v. Wages. Gambling, 135, 247. Game laws, 135. Garant, 98, 176. Garantformel, 84, 348. Garantie, 3, 4, 84, 257, 260, 331. Garantie d'eviction, 332. Gardien, 13, 119, 135, 205, 233,272, 277, 280, 296, 350. Garnishee v. Tiers-saisi. General counts, 241. General issue, 13, 226, 227, 289. Goat, 348. Goods sold avec terme, 279, 280. Goods sold sans terme, 279. Government officer, 137. Governor, 137, 197. Grain, 77. Grand jury, 40. Grave-yard, 184. Grosse, 347. Grosses reparations, 319. Habeas corpus, 79, 137, 193, 266. Habitants, 346. Hares necessarius, 192, 193. Half-pay, 138. Harbour Commissioners, 7, 43. Harbour of Quebec, 11,12,138. Harbour Master, 69, 138, 316. Hautjusticier, 109, 216. Heirs, 4, 6,-7, 14, 72, 74, 89, 106, 109, 117, 138, 143,236,286, 305,333,33*, 347 350. High seas, 11, 214, 215. Hire, 131, 138,275. Holder, 44. Holograph will, 333. CONCORDANCE. 373 Homologation, 103, 270, 316, 345. Honneurs dans Piglise, 138. Horse, 205. Horse racing, 43. ' ffltdlier, 113, 139. House of Assembly v. Legislative As- sembly. House-holder, 63. Huissier v. Bailiff. Husband and wife, 78, 129, 132, 135, 220,246,263,291. Hypothecary action, 6, 22. 98, 139,218, 219, 221, 242, 243, 244, 264, 341, 353. Hypothecary claim, 124,281. Hypothique, 2, 40, 42, 46, 134, 139, 228, 256,257,260,261,331. Hypothetical plea, 227. Illegal arrest, 74, 93. Immeublesjictifs, 318. Immoveable property, 6, 79, 98, 123, 143, 146, 181, 194,209,219,233,242, 260,281, 282, 283, 305, 312, 331, 333, 349. Impotency, 149. Improvements, 149. Imputation, 75, 150, 200. Incidental demand, 150. Incumbrances on property, 150. Indian customary law, 21. Indians, 21, 151. Indictment, 13, 43, 131, 151, 204. Indication de paiement, 75. lndivis, 7, 2flp, 344, 349. Information, 80. Informer, 122. Ingratitude, 105. Inimitie capitate, 259. Injure, 350. Innkeeper v. Hutellier. lnepes consilii, 186. lnsaisissablcs, 45, 96, 122, 307. Insanity, 151. Inscription, 128,231. Inscription defaux, 114, 151, 222, 260, 350. Insinuation, 106, 261, 334. Insolvency, 33, 42, 72, 140, 244, 264, 280, 310. Insolvent, 33, 34, 35, 39, 74, 115, 122, 132, 203, 264,279, 280,281,285,309. Inspector of revenue, 82. Inspector of roads, 287, 301. Instance, 213, 233; 293. lnstituteurs, 153. Insurance, 153, 168. Insurance company, 115, 117. Insurer, 220. Intent, 300. Interdict, 159, 350. Interest, 6, 116, 143, 145, 150,156,160, 204, 241, 257, 280, 245. Interlocutory judgment, 2, 5, 20, 22, 79, 89, 138, 161, 163, 264, 346, 347, 349, 355. Interpretation of deeds, 162. Interruption of prescription, 241, 243. Intervention, 32, 177, 228, 232, 336, 350. Intervening party, 289. Inventory, 5, 162, 189, 202, 219, 258, 286, 317, 350, 351, 357. I. O. U., 245. Jewellery, 58, 194. Joinder in issue, 232. Joint adventure, 213. Joint creditors, 162. Joint stock company, 228, 250. Jouissance, 343. Judge, 162, 230, 235, 259, 272, 286, 306, 307, 309, 315, 345. Judge of sessions, 81. Judgment, 77, 79, 163, 191, 213. Judgment non obstaMe veredicto, 321, 331. Judicial sale, 10, 77, 86, 164, 236, 298. Jugement commun, 164. Jurat, 271,343. Jurisdiction, 1, 11, 12,20,22, 61, 154, 164, 176, 259, 306, 315, 323, 351. Jurors, 167. Jury, 3, 39, 130, 168, 177, 320, 321. Jury trial, 22, 168. Justice of the peace, 13, 80, 169, 191, 202,219,238,261,323. Justification, 170, 227. Kerr, Judge, 27. King's Attorney, 350. King's Bench, 12. King in Council, 130, 162. Lands, 123, 170. Landsman, 170. Larboard, 170. Laval University, 304. Law, 171,227. Law Officers, 253, 263. Law-Student, 304. Laws of Canada, 17. 374 CONCORDANCE. Laws of England, 7, 8. 17, 125, 130, 229, 342. Laws of France, 7, 8, 112, 113. Lease, 171, 208, 305, 306, 313, 351. Legacy, 3, 82, 100, 140, 172, 334, 336. Legatee, 3, 18, 100, 119, 144, 145, 173, 211,233,245,263,333,336. Legatee, Universal, 334. Legislative Assembly, 174. Legislative Council, 174. Legitime, 174, 351. Lesion, 174. Lessor and Lessee, 165, 262, 305, 308, 341, 351. Lessor and Lessee's Act, 22, 23, 174, 218. Letters of Administration, 335. Letters of Ratification, 228. Letters Patent, 8, 146, 177, 261, 287. Lettre Missive, 283. Lex loci contractus, 328. Libel, 174, 178. License, 81, 82, 178. Licitation, 11, 178, 312, 343. Lien, 59, 136, 150, 175, 178, 193, 207, 217,285,296,329,330. Life-Rent, 147, 180, 181, 189,211. Lights (on ships) 65, 69, 180, 324. Lights (vues droites) 180. Limitations v. Prescriptions. Litispendence, 180, 222, 228. Livre terrier, 42. Lods et ventes, 72, 105, 150, 181, 183, 281,352,355. Log-book, 326. Look out, 69, 182, 324. Lord Mayor of London, 237. Lost, 182. Lottery, 182. Lottery tickets, 88. Loyers, 182. Luggage, 58. Machine, 182. Magistrate, 37, 81, 82, 94, 154. Mail carriers, 312. Mainmort.e, 182. Malice, 9% 167. Malicious arrest, 165, 184. Malversation, 265. Mandamus, 22, 29, 110, 184, 198. Mandat, 215, 254. Mandataire, 1, 5, 78, 184, 297. Manure, 185. Marchande publique, 73, 190, 246. Marcke ouvert, 282. Marginal notes, 101, 112, 226. Marguillier, 127, 158, 184, 185, 352. Marine insurance, 157, 185. Mariners, 186, 217. Mariner's contract, 187. Maritime interest, 160. Maritime lien, 179, 193. , ;r Maritime law, 192, 352. Mark v. Cross. Marques, 199. Marriage, 149, 187, 263, 352. Marriage, Certificate of, 117. Marriage contract, 18, 34, 72, 73, 105, 107, 140, 142, 143, 159, 291, 349, 352. Marriages, Registers oi, 259, 260. • Married woman, 73, 78, 189, 247, 283, 291, 343. Marshal of Admiralty Court, 37. Master and servant, 191, 352. Master of ship, 11, 30, 44, 65; 69, 77, 85, 91, 92, 94, 95, 100, .116, 179, 186, 191, 193, 214, 234, 237,259, 266, 322, 323, 325, 327. Mate, 192, 259, 285. Material men, 12, 193. Matrimonial rights, 13, 14. Mayor and Councillors of the City of Quebec, 309. "■ Measurement, 193, 281. Measure of damages, 82. Members of the Legislature, 193. Memorandum in writing, 113, 127. Memorial, 142, 145. Menuisier, 226. Medical attendance, 841. Mediterranean States, 214. Merchant, 247. Merchant's Clerk, 179. Merchant Shipping Act 1854, 67, 169, 187, 193, 218, 271, 302, 303,323, 327, 329. Merchant Shipping Act Amendment Act, 302. Merchant Shipping Repeal Act, 218,. 302. Merger, 1 94. Merits, 2J 6, 231. Military equipment, 307. Militia pensions, 32. Mill, 172, 200, 289, 290. Mill-dam, 194. Minor, 3, 5, 95, 105, 107, 147, 173, 174, 187, 191, 194, 239, 260; 264, 289, 316, 317, 318, 352, 356. Minority 90, 195, 242. Minute, 28, 114, 127, 184, ■ 202, 352. Misconduct, 195. Misdemeanours, 77. Misdescription, 220, 225, 229. Misdirection, 200. Misfeasance, 256. Misnomer, 195, 225. Missionary, 61, 90. Mitoyen, 4, 199. Modus, 154. Money, 199, 228. Moneys, 195, 233, 268, 276. Mooring, 195. Mortgage v. Hypotheque. Mortgage of Ship, 330. Mortuus civiliter, 63. Motion, 5,53, 136, 166, 190, 196,200, 201, 203, 210, 215, 223, 225, 227, 228, 230, 231, 265, 269, 271, 272, 274, 276, 278, 280, 288, 307,321, 331, 337. Mouture, 290. Moveables, 122, 123, 164, 177, 195, 196, 209, 236, 237, 240, 244,245, 308, 349. Moveable estate, 17. Municipal Act, 31, 196. Municipal corporation, 286, 287, 294. Municipal Councillors, 197, 254. Municipal Councils, 31, 197, 268, 287. Municipal debentures, 197. Municipal elections, 198. Municipal rates, 219, 308. Mur mitoyen, 4, 45, 199, 352. Name, christian, 261. Navigable river, 200, 295, 341. Navigable rivers, non- 267. Navigation, dangers of, 58. Necessaries, 12, 189, 194, 246. Mgatoire, action, 31, 219, 295. Negligence, 44, 57, 65, 68, 69, 93, 94, 95, 139, 190, 191, 200, 228, 238, 255, 320. Negligence, gross, 65, 68. Negotiable, 246. Neighbour, 199. New conclusions, 200. New trial, 84, 169, 177, 200, 321. Newspaper, 201. Night, 69, 292, 303. Night, dark, 66,315. Non-user, 66, 102, 171, 301, 315. Notables, 185, 339. Notarial deed, 190, 313. CONCORDANCE 195, 201, 375 Notary, 2, 28, 42, 114, 127, 152, 190. 195,201,248,297,335,344,352. Notary and two witnesses, 334 Notice, 53, 155, 202. Notice of action, 202, 297. Notice of appeal, 111, 233. Notice of inscription, 112. Notice of motion, 78, 203, 214, 233. Notice of protest, 39, 44, 245, 248, 249, 250. Notice of security in appeal, 24, 25. Novation, 36, 118, 203, 262, 307. Nuisance, 204,267, 341. Nuttite tie decret, 97. Nuttite de vente, 9, 204, 282. Nuttite relative, 181. Nullity, 248, 268, 299, 343. Nullity of deed, 228. Number, 145, 204, 209. Obligation, 2, 161,204, Occupant, 7. Offences, 77, 79, 80, 81, 82, 204. Office, 204. Offres, 353. Offres reelles, 205, 353. Onus probandi, 53, 58, 94, 119, 205. Opposant, 119, 349. Opposition, 9, 10, 11, 24, 77, 87, 124, 204, 205, 232, 233,257, 289, 305, 346, 353. Opposition aftn d'annuller, 10, 149, 164, 205,206,207,209,291. Opposition afin de charge, 333. Opposition afin de conserver, 103, 256, 262, 314. Opposition afin de distraire, 206, 210. Opposition, frivolous, 205. Opposition to marriage, 352. Option, 3, 210, 262. Order, 81, 210. Orders in council*, 210, 308. Ordonnance de commerce, 346. Ouvrier, 353. Over-bidding, 76, 257. Owner, 64, 70, 210, 218, 236, 237, 242, 313,321,330. Pacte commissoire, 211. Painbeni, 138, 139,353. Paper machine, 196. ~P(1YPY)tS 3tD Parishoner, 75, 104, 185, 338, 339. Parliament, 211. Portage, 4, 7, 18, 178, 189, 211, 219„ 343, 357. 376 CONCORDANCE. Partnership, 6, 13, 35, 37, 75, 76, 78, 92, 104, 116, 165, 211, 212, 252, 278, 286, 293. Partners, 4, 5, 13, 82, 104, 119, 162, 211,213,278,283,321. Passenger, 11, 30, 31, 95, 116, 194, 214, 255, 323. Pasturage, 295. Patent, 221. Paternite, 3, 168, 214, 353. Patron, 217. Patronne, 214. Payee, 346. Payment, 224, 227, 239, 241, 242, 245. Penalty,' 12, 16, 27, 64, 78, 80, 86, 88, 134, 135, 214, 268, 323, 353. Penitentiary, 63. Peremption oV instance, 37, 86, 214. Periculum rei venditm, 98. Perishable effects, 216. Perjury, 40, 216. Personal action, 243. Personal wrongs, 219. Petition, 11, 19, 23, 48, 53, 233. Petition of rights, 242. Petitory action, 4, 6, 7, 8, 118, 174, 219, 225, 236, 237, 240, 242, 3 12, 338, 344. Pew, 75, 138, 216. Physician, 40, 240. Pianoforte, 341. Pilot, 12, 64, 65, 116, 210, 217, 259, 284. Pilot Acts, 64, 218, 300. Pilotage, 11, 116, 166, 179, 192, 315, 323. Plea, 74, 77, 224, 226, 227, 228, 230, 241, 250, 257. Pleading and Practice, 10, 13, 218, 350. Policy j)f insurance, 29, 117, 154, 155, 157, 160, 168, 186, 220, 292, 316. Port, 236. Possession, 6, 12, 43,75, 98,217, 236, 260,261,281,312. Possessory action, 7, 8, 9, 43, 338, 348. Posthumous child, 333. Poundage, 298. Power of attorney, 14, 117, 237, 283. Preciput, 349. Preliminary exception, 24, 223, 224, 226. Premier saisissant, 355. Premium, 156. Prerogative, 237. Prerogative writ, 262. Prescription, 10, 14, 41, 95, 104, 119. 139, 163, 180, 231, 238, 260, 353. President and Directors of a Savings* Bank, 285. Presumption, 120,239, Preuve v. Evidence. Preuve avantfaire droit, 243. Prevoste, 352. Priest, 75. Principal and agent, 4, 14, 15, 78, 115, 186. Prisoner, 263, 298. Privilege, 175, 177, 244, 261, 265, 299. Privileged communication, 244, 300. Privity of contract, 78, 174, 244. Privy council, 24, 25, 26, 162, 254, 302, 307. Privy seal, 177. Prix de vente, 9, 39, 75, 98, 148, 163, 233, 257, 282, 291. Prizes, 166. Probate, 133, 166, 335. Procedendo, 61. Procedure, 353. Proces-verbal, 80, 122, 124, 207, 301. Proclamation of 1763, 110. Proctor, 235, 244, 258. Procureur v. Attorney. Procureur fabricien, 185. Prohibition, 12,245. Prohibition to alienate, 245. Promesse de vente, 147, 245,281. Promissory note, 14, 39, 43, 50, 56, 74, 77, 92, 114, 115, 121, 125, 156, 161, 162, 189,203,204, 221,229,240,241, 245, 285, 319, 342, 345, 350, 353. Proof v. Evidence. Propre, 18, 19, 73, 292. Prorogation, 174. Protest, 44, 57, 118, 250, 252, 283. Protestant, 268. Protestant Churches or Congregations, 260. Prothonotary, 21, 24, 153, 166, 210, 212, 230, 252, 272, 288, 310. Prothonotary's office, 2, 6, 98, 128, 211, 222, 228. Provincial Secretary, 301. Provocation, 30. Proxies, 253. Publication, 334. Public bridge, 80. Public officer, 253, 259. Publici et divini Juris, 75. Purchaser, 98, 281. Purser, 241. CONCORDANCE. 37? Qualification, 211. Quantum meruit, 14, 29, 32, 73, 130 253, 284, 308, 332, 337. Quanto minoris, 9, 320. Quarter-deck, 214. Quarter sessions, 60, 81, 82, 180. Quebec, 12, 64, 253. Quebec act, 110,334. Quebec Gazette, 298. Queen's counsel, 177. Queen's Bench, 20, 23, 38, 244. Queteuse, 353. Quo warranto, 127, 254, 264. Radiation, 149. Railway cases, 254. Railway company, 314. Railway conductor, 31. Ratification of donation, 105. Ratification of title, 3, 9, 87, 216, 256, 257, 288. Realisation, 18, 73. Rebellion d justice, 56, 258. Receipt, 203. Receipt in full, 258. Receiver General, 72. Recel, 258, 351. Recision, 10, 290, 317. Recdlement, 122,207. Reconnaissance, 312. Recoupement, 259. Recognizance, 258. Record, 215. Recorder, 80, 259. Recors, 123, 279. Recusation, 259. Reddition de compte, 4, 163, 317. Reelhibitoire, 9. Reformation de compte, 4. Registers, 259, 260. Registrar, 87, 117, 252, 257, 260. .Registration, 8, 75, 145, 260. Registry office, 211. Registry ordinance, 140. Registry of vessels, 261. Ee-hearing, 37. Riintegrande, 261. Relations, 114. Relationship, 261. Release, 65, 115, 235, 262, 321. Religious congregation, 262. Rimere, 262. Remise, 262. Remploi, 349. Rent, 46, 74, 85, 95, 171, 174, 175, 177, 182, 203, 240,277, 306, 341, 344, 351. Rent of farm, 355. Rente constitute, 140, 148, 243, 262, Rente viagire, 105, 106, 121, 144, 283. Renunciation, 3, 262, 291, 306. Repit, 348. Repleader, 222. Replication, 223, 229, 230. Reply, 263. Reponse en droit, 229. Reporters' tax, 14. Report of distribution v. Distribution. Reprise dHnstance, 111, 263, 292, 336. Reprises matrimoniales, 18, 190, 263. 292. ' Requite civile, 263. Requite libellee, 184, 263. Resiliation, 9, 7S, 351. Res judicata, 5, 119, 264. Resolutory clause, 9, 283. Respect a la justice v. Contempt. Retrait conventional, 265. Retrait lignager, 265. Retrocession, 211. Return, 40, 128, 132, 222, 228. Return-day, 265. Returning officer, 265. Revendication, 44, 89, 114, 168, 261, 266, 297, 341. Revenue, 42. Revenue collector, 81. Revocatory action, 10, 148, 1 64. Riparian proprietor, 2, 7, 266, 295. Risk, 281. Rivers, 267. River St. Lawrence, 43, 266, 284, 303, 315 323. Road,' 196, 268, 346. Road officers, 196, 202, 268. Road tax, 268. Rdle d'enquite, 128, 230, 232. Rdle de droit, 231. Roman catholic, 104, 268. Rule, 128, 132, 205, 223, 268, 343. Rule nisi, 78, 133,263. Rule of practice, 20,38,44, 103,111, 125, 129, 169, 210, 233, 268, 292, 294 337. Rule ofthe' sea, 67,270. Rules and regulations, 69, 271. Saisi, 98. Saisie, 9, 355. Saisie-Arrii, 1, 2, 20, 44, 93, 121, 122, 124, 166, 233, 271, 345. Saisie-Gagerie, 277, 305. 378 CONCOEDANCE. Saisie-Gagerie par droit de suite, 277, 278. Saisie-Revendication, 99, 233, 278. Sadsine, 281. Salary, 6, 74, 122, 153, 280, 311. Sale, 6, 8, 75, 147, 162, 164, 171, 281. Sale of immoveables, 9. Sale of ships, 38, 77, 179, 284. Sale, memorandum of, 117. •Sale omnium bonorum, 34, 281. Sale super non domino, 11. Salt, 57. Salvage, 11, 12, 166, 187,218,235,252, 284, 323. Salvors, 179, 218, 243, 284, 285. Sample, 283. Savings Bank, 285. Scelle, 286. School acts, 286. Schools, elementary, 104. School commissioners, 286. Schoolmasters, 286. School municipality, 287. Scire facias, 111, 287. Scotland, 48, 314: Seal, 61,83, 117,286. Seamen, 186, 258, 284, 285, 338. Seamen's wages v. Wages. Season of navigation, 287. Second marriage, 356. Secretary-Treasurer, 2, 4, 6, 287. Security, 77, 306, 355, 357. Security for costs, 209, 223, 288. Seduction, 289, 318. Seignior, 10, 75, 138,217,267,290,312, 346, 352. Seigniorial Act 1854, 125. Seigniorial commissioners, 72. Seigniorial dues, 181,355. Seigniorial rights, 145, 289. Seizin, 6, 312. Self-defence, 30. Semi-naufragium, 327. Siminaire de Quebec, 355. Sentence arbitrate, 299. Separation de biens, 72, 107, 129, 188, 291, 355. Separation de corps et de Mens, 13, 17, 73, 292, 355. Sequestre, 292. Serment d'office, 345. Serment decisoire, 45, 58, 292, 355. Servant's wages, 238, Service, 5, 104, 128,255, 269, 275, 292. Servitude, 140, 148, 295, 333. Servitude reelle, 295, 333. Sessions, General, of the Peace, 259. Set-off, 39, 217, 227, 228, 259.' Sevices, 221. Shareholders, 228, 259, 296. Shares, 115, 122, 314, 318. Sheriff, 6, 9, 11, 37, 39, 55, 97, 102, 121, 122, 123, 124, 136, 140, 153, 172 180, 205, 216,218,222, 233,237,265, 271, 272, 275, 282, 288, 296, 298. Sheriff's office, 280. Sheriff's title, 9j 11,299. Sheriff's sale, 290. Ship, 122, 182, 210, 259, 299, 321, 322. Ship at anchor, 243, 324. Ship's articles, 328, 329. Shipper, 237, 266. Signature, 24, 250, 321, 333. Signification, 2, 35, 50,299,314,341, 344. Simulation, 34, 300. Slander, 119, 219, 227, 239, 242,244, 293,300. Solatium, 95. Solicitor General, 38, 177. Solidarity 332, 342, 344. Son, 114. Soulte, 181. Sous ordre, 208. Sous-voyer, 301. Sous seingprivi, 117. South Sea, 301. Sovereign, 287. Spanish dollar, 90. Special answer, 229. Special bail, 39, 55, 258. Special damage, 315. Special jury, 321. Special tax, 31. Special verdict, 320. Spring, 326. Squatter, 1.50, 178, 236, 312. State paper, 244, 301. Status, I8S, 317. Statute, 301. Statute labour, 301. Statute of frauds, 112, 113, 127, 334. Statute of limitations, 241, 302. Statutes, 302. Stays, in, 66, 270. Steamer, 66, 67, 68, 133, 241, 261, 302, 315, 330. Steam navigation act, 67, 303. Steam-tugs, 67, 303. Steward, 304. Stockholder, 47, 255. Stoppage in transitu, 59. CONCORDANCE. 379 Stolen goods, 168. Student, 304. St. Lawrence, 12, 64. St. Michel, 104. Subpasna, 304, 337. Subrogation, 304, 306. Subrogate tutor; 317, 350, 351. Substitution, 2, 4, 17, 304, 343. Substitution of attorney, 37, 263. Sub-tenant, 171, 305. Succession, 3, 17, 258, 262, 305, 306. Suggestion of death, 37. Summer, 287. Summons, 81. Sunday, 246. Sunset, 269, 292. Superior Court, 4, 19, 20, 21, 38, 216, 306. fSnppletory oath, 234, 355. SSurety, 19, 39, 75, 102, 190, 264, 268, 306, 330, 332. Surgeon, 355. Surrogates, 307. Surveyor, 307, 356. Sword, 122, 307. Syndics, 127, 350. Table of Fees, 307,308. Tacite reconduction, 236, 308, 313, Tailles;356. Tariff, 252, 308. Taxes, 197,308. Tax for court house, 234, 297. Tax of witness, 337. Tax, special, 31. Tavern debt, 347. Tavern-keepers, 197, 309. Tavern licenses, 309. Teacher, 239. Telescope, 58. Temoins instrumentaires, 114,152. Temoins necessaires, 114. Tenant, 172,277, 278, 306, 3 15, 350, 351. Tenants et dboutissants, 75. Tender, 76, 84, 90, 227, 283. Tender of oath, 238. Tenure's Act, 108. Term, 22, 154. Testament v. Will. Testament solennel, 335. Testamentary executor, 390, 356. Testator, 3, 18, 173, 232, 245, 263, 305, 309, 333, 335, 336. Theft, 236. Tierce-opposition, 210. Tiers-acquereur, 178. Tiers-ditenteur, 141, 143,145, 149, 248, 261,289,293,309,356. Tiers-saisi, 1S7, 209, 233, 269, 274, 275, 276. Timber, 98, 178,200,279,296,311, 342. Tirage au sort, 182. Tithe v. Dixmes. Titles, 122, 145, 174, 217, 219. Titre nouvel, 145, 312. Toll-bridge, 48, 312. Township lands, 104. Trader, 46, 70, 113, 241, 242, 246, 252, 285,300. Tradition, 33,282, 312. Tradition, actual, 6. Tradition, symbolical, 8, 236, 312. Transaction, 112, 204, 313, 317. Transcript, 22. Transfer, 2, 63, 145, 208, 314, 341. Transfer of shares, 220. Transport, 50, 314, 331. Treating, 346, Trespass, 7, 75, 94, 202, 261, 314, 315, 356. Trial by jury, 3, 84, 228. Trinity-House, 43, 65, 66, 138,210,217, 265, 315, 323, 324. Trouble, 75, 77, 134, 236, 257, 316. True Bill, 316. Trust, 305. Trustees, 10, 82, 147, 262. Tutelage, 186. Tutelle, 316, 317. Tutor, 3, 5, 95, 143, 173, 188, 189, 191, 194, 239, 260, 316, 351, 356. Tutor naturel, 289, 318. Tutorship, 260, 316, 356, 357. Tutor to a substitution, 3 18. Two months, 124, 127, 258, 350. Unchastity, 333. Union Jack, 302, 318. Upper Canada, 54, 177. Usufruct, 2, 318, 343, 357. Usufructuary, 21 1 , 318, 319. Usury, 71, 115,229, 319. Vacant estate, 1, 89, 105, 117. Vacation, 22, 27, 53, 176, 215, 223, 232, 252, 275, 288. Variance, 173. Vendee, 4, 10, 34, 280, 313, 320. Venditioni exponas, 122, 124. Vendors, 6, 9, 40, 78, 98, 100, 146, 147, 148, 153, 156, 162, 163, 175,236, 257, 279, 280, 281, 312, 313, 318, 320, 331. 380 CONCORDANCE. Ventilation, 256. Vessel v. Ship. Verbal acceptance, 311. Verbal lease, 172. Verbal promise of sale, 282. Verbal sale, 10. Verbal testimony, 314. Verdict, 22, 84, 130, 168, 169, 177, 200, 201, 320. Verification of writing, 321, 357. Vice-Admiral, 27, 321. Vice-Admiralty Court, 12, 26, 64, 97, 116, 130, 162, 166, 167, 217, 234,243, 302, 307, 318, 322. Vice redhibitoire, 325. Vices du sol, 46. Vin vendu par assiette, 139. Violence, 236. Vis major, 57, 65, 92, 145, 324, 325. Vote defait v. Trespass. Vol v. Theft. Vouchers, 5. Voyage, 325. Wages, 116, 170, 187, 191, 195, 210, 234, 238, 241, 258, 259, 261,280,281, 304, 323, 326, 327, 328, 352, 357. Wall, 4. Warehouseman, 330. Warranty, 33, 117, 154, 330. Watch, 214. Water, 332. Water course, 24, 332. Water power, 332. Water tax, 332. Way, 333. Weekly sittings, 286. Wharf, 266, 277. Widow, 333, 347, 357. Wife, 18, 19, 34. Wild lands, 312. Will, 3, 17, 114, 144,166,174,201,232, 245, 263, 286, 305, 306, 333. Winter, 326. Witness, 37, 40, 65, 88, 101, 113, 114, 115, 118, 119, 120,123, 129,151,152, 161, 166, 192, '235, 245,248,249,262. 269,300,311,317,336,344. Woman separee de Mens, 78. Woman sous puissance de mart, 78. Words of provocation, 30. Wreck, 338. Writ, 3, 20, 77, 85, 95, 121. Writ de terris, 37, 124. Writ of appeal, 20, 21, 24. Writ of error, 22. Writ of possession, 338. Writ of prerogative, 339. Writ of prohibition, 245. Writ of summons, 119, 222, 228, 2fr3 f 265, 338. Wrongs, personal, 11. C0RBECTI03STS. ae 33, read too Nne 34", read \ 18, " , last line, " link .2, " 17, « & « for two. recision for rescission. Doutre and Elvidge for Doutre vs. Elvidge. S. vs. L. for L. vs. L,. adultery for addultery. Blanckensee for Blankensee. Fergusson for Fargusson. Goldsmid for Goldsmith. Mailhot for Maillot. Whitby for Whitly. Blanckensee for Blanlcensee. Kemp vs. Kemp for Kempt vs. Kempt. Ruston for Boston. personal for personel. falling for failing. Marion for Mar rum. socage for soccage. lorisset for Morriset. solicitor for sollicitor. inaelible for indellible. Maedouall for Macdonall. Limoges for Lemoges. tiers-isaisi for tiers-saisie. Batten, for Butler. Farna\ for Farman. Crevierist Grevier. Fleming\fox Flemings. set-off fo\ sett-off. « 38, » 48, Perrault fo\ Perault. Evans for note for not. Mathews for Matheio. Alain for Allaik recision for rescisio rentes for rents. Berthelet for Berthelot. bailiff for bailliff. « « « bailiffs for bailliffs. goods for gsods. Goudie for Goulie. grosses for grosse. Maritime for Maratime.^