3; >.\^^ >->^ '> k-i- »->"-^.'- ',^> V'-i"'^ '-^^ ^v ■ *v» >>x'^^'^ ^. -"'' ;• :1^^V ]'I> ■^■-%:^' Y y> ■■>>sm ^^^:,.> .>3. ,*:»,. >. .' ■>>■.-::»■'> '■•:.:i^'r-^-->- 3'-^-'^>*:*> Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDUE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS KEQ lOT^^ms^Tssr "-'""^ '*lMmSmm^&A "«"« and de 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/cu31924021474584 RAMSAY'S APPEAL CASES, RAMSAY S APPEAL CASES NOTES AND DEFINITIONS CIVIL AND CRIMINAL LAW OF THE PROVINCE OF QUEBEC INOLDDING A LARGE NUMBEE OP DECISIONS IN APPEAL OTHEKWISE UNREPORTED AND BROUGHT DOWN TO THE BEGINNING OF THE TEAR 1887. To which is appended a list of all the eases carried to the Supreme Court and Privy Council with the text of the judgments in the Privy Council. THOMAS KENNEDY R^AMSAY Late yudge of the Court of Quecn^s Bench for the PrlSvince of Quebec EDITED BY Charles Henry Stephens ADVOCATE, AUTHOR OF QUEBEC LAW DIGEST. IVtONXREAL A. PKRIARD, La^v PUBLISHER 1887 Entered according to Act ofligarUinient of Canada in the year 1887, by A. PERIARD, in the Office of the Minister of Agriculture and Statistics tat Ottawa. GEBHARDT-BEHTHIAUME UTHO. dk PRINTING CO., MONTREAL. EDITOR^S REMARKS. This work, left in manuscript by the late Judge Eamsay, is a Digest or Alphabetical Synopsis of all the judgments in Appeal from the time the late Judge was appointed to the bench — that is from the year 1813 to the fendrof 1886 — illustrated throughout by the learned judge's own nates ahd Opinions On the first sheet of the manuscript are the wore " Commence le 7 Avril 1884, lundi de la semaine sainte," so that we may assume that the work occupied all the leisure time of the learned Judge during a period of nearly three years. As far as possible it is published in the condition in which it was left. Although the Judge evidently considered it finished, there were naturally a number of points here and there overlooked, and which had to be supplied as well as possible from sources of inform- ation different from those used by the author. Other things which will probably be considered as peculiarities, such as the names of the judges in each case, and of those dissenting, with occasionally the opinions of those who dissented, were manifestly intended to remain and have so been left. The number of unreported cases is unexpectedly large, comprising nearly, if not quite, one half of the total number of judgments in VI EDITORS REMARK Appeal during the last thirteen years. It need scarcely be pointed out that, dealing only with the decisions of the Court in which he sat, aiid during the time he sat in it, all the judgments and references cannot but be regarded as emanating from the most reliable sources. As the most important of these judgments were carried to higher courts, and there either confirmed or reversed, the Editor has seized ' the opportunity to add in an Appendix, a list of such cases, giving for the first time a collection of the judgments in the Privy Council on cases referred to in the body of the work, that is in all cases from this province during the last thirteen years. The work, it may readily be believed, will be found a most valuable addition to the text books of this province, and a most valuable aid to the practitioner. Montreal, Sept. 15, 1881. C. H. S. TABLE OF CONTENTS. PAGE Abbreviations viii Digest of appeal cases 1 Table op cases 788 APPENDIX 849 Table oe cases carkied to Supreme Court. . . .... 851 Privy council cases .... 855 Table or privt council cases 1062 ABBEBTIATIOKS. C. C— Civil Code. C. C. P.— Code of Proeodure. C. J. — Chief Justice. Dec. d'A. — Decisions de la Oour d'Appel. Dis. — Dissenting. J. — Lower Canada Jurist. Leg. News. — Legal News. M.— Montreal. M. C— Municipal Code. M. L. E. — Montreal Law Eejjorts'. Q. — Quebec. Q. L. E. — Quebec Law Eeports. Eep. — Eepoi'ted. Eev. Leg. — Eevue Legale. S. C. — Superior Court. S. C. Eep. — Supreme Court Eeports. RAMSATS APPEAL CASES. ABANDONMENT — Is the act of giving up or deserting ; but specially in law, abandonment is the notice given to ihe insurer by the assured in cases of ma- rine insurance, where there is a con- structive total loss, that the latter aban- dons to the former all interest in the thing insured. C. C. 2538, 2543. It is also applied to the discontinuance or withdrawal of a suit in a jury trial. C. C. P. 395 ; and to the cession made by a debtor arrested on capias. C. C. P. 363. Any person having a common right in a wall may abandon his share in it and renounce to its use, and thus avoid contributing to its repair C C. 513 c. 'Action — Capias— Insurance {^Marine) — Judgment. ABDUCTION.— Is applied to the un- lawful taking away of a woman or girl by force or fraud. Special statutes de- fine and fix punishments . for these oifences. " Where any woman of any age has any interest, whether legal or equit- able, present or future, absolute, con- ditional or contingent in any real or personal estate, or is a presumptive heiress or co-heiress or presumptive next of kin, or one of the presumptive next of kin to any one having such in- terest, whosoever fi om motives of lucre, takes away or detains such woman against her will with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person ; and whosoever fraudu- lently allures, takes away or detains such woman, being under the age of twenty-one years, out of the possession and xgainst the will of her father and mother, or of any other person having the lawful care or charge of her, with intent to marry or carnally know her or to cause, her to be mariied or carn- ally known by any other person is guilty of felony, and thall be liable to be imprisoned in the penitentiary for any term not exceeding fourteen years and not less than two years, — or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour ; and who-oever is convicted of any ofience against this section shall be in- capable of taking any estate or interest, legal or equitable, in any real or per- sonal property of such woiuan, or in which she has any such interest, or which shall come to her as such heiress, co-heiress or next of kin as aforesaid ; and if any such marriage as aforesaid shall have taken place, such property shall, upon such conviction, be settled in such manner as the Court of Chan- cery in Ontario, the Supieme Court in Nova Scotia or New Brunswick, or the Superior Court in Quebec, shall ap- point, upon any information at the suit of the Attorney General for the Prov- ince in which the property is situated. 32-33 Vic. ch. 20, s. 54. " Whosoever by force takes away or detains against her will any woman, of any age, with intent to marry or carn- a ly know her, or to cause her to be married or carnally known by any other person, is guilty of felony, and shall be liable to be imprisoned in the penitent- iaiy for any term not exceeding fourteen years and noi less than two years, — or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour. " Id. s. 55 " Whosoever unlawfully takes or cau- ses to be taken any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother or of any other person having the lawful care or charge of her, is guilty of a misdemea- nor, and shall be liable to be imprison- ed in any gaol or place of confinement, other than a penitentiary, for any term less than two years, with or without hard labour. " Id. s. 56. 3 ABSENTEK ABSENTEE.— An absentee, within the meaning of title fourth, bk. 1, C. C, is one who having had a domicile in Lowfr Canada has disappeared, without any one having received intelligence of his existence. C. C. 86. But persons who never had a domi- cile are sometimes subjected to the same liability as absentees. So, if the deiendaiit has left his domicile in Low- er Canada, or has never had such domi- cile, but has property there, upon a re turn stating that he cannot be found in the rii.-trict, may be ordered to appear within two months. C. C. P. 68. Without prejudice to the foregoing mode of summons, a defendant who has not and who never had any domicile in the Province of Quebec, but who re- sides in the Dominion of Canada, may be served with summons at his domicile, leave being granted by the judge or propt-r officer, on affidavit, (1) if he h«s property in the Province . of Quebec, or (2) when the cause of action arose there. But an action for the liquidation of a partnership begun in Jersey, whose chief place of business was there, can- not be instituted in this Province, by a person having no domicile and who never had any domicile here, but was domiciled and resident in Jersey against co-partners who likewise have not and never had any domicile here, the cause of action (the alleged dissolution of partneiship)not having arisen here, and the jiarties not having been personally served here, although the said partner- ship had carried on business in this Province and was possessed of property here. Gosset & i?o6tnQ. Judgment con- firming 18 June, 1876. Sir A. A. Doiion, C. J., Monk, Kamsay, Sanborn and Tes- sier, JJ., Monk and Kamsay, JJ., dis. Rep. 2 Q. L. R. 91. One, who never had any domicile in Lower Canada, cannot be called in by adverti-ement, under art. 68 0. C. P., because it is alleged that he is the owner of a 6on, if the bon be not pro- duced, and if it does not appear by the pleading and proof what the nature of ACCESSORY * the bon was, nor to whom, nor where it is payable, nor without pi oof that the bon is in existence and that it was the property of the defendant at the time of the institution of the action. Poirier & //orefflM, judgment reversing 21 Dec, 1876. LSir A. A. Dorion, C. J., Monk, Ramsay, Sanborn and Tessier, JJ. v. Bon Prom. Note — J ueisdiction — SBaj- VIGK BY ADVERTISEMENT — SUMMONS. ACCEPTANCE.— Is the signification in the form required by law of one's willingness to be bound contractually. V. COMMDNITY BiLL OF EXCHANOB Gift — Legacy — Salk — Succession (un- der Benefit of Inventory) — Transfer. The acceptance of an indication of payment by a person, not authoiized, does not make it a perfect delegation, so as to prevent the vendor from ac- cepting payment from the purchaser. Gerin-Lajoie & Desaulniers. Q. Judg- ment confirming, 7 Dec. 1^81. Sir A. A. Dorion C. J., Kamsay, Tessier, Cross, Baby, J J. 2 Dec. d'A. 241. ACCESSION.— The right of the owner- to all his property produces, and to all that is joint-d to it as an accessory, is called the light of accession. C. C. An. 408. V. Accessory. ACCESSORY. — ^The accessory in civil law is what accompanies the principal thing, what joins itself to it or iiniu- itself with it. Merlin vo. acc.essoiri;. And so as to property all that it pro- duces, or is joined to it, to form part of it, C. C. ai t. 4u8. And so in sale all tha i. is designed for the perpetual use of the principal must be delivered. C. i . irt. 1499. Securities, privileges and hy- pothecs are accessories of a debt. C. 0. art. 1574. In criminal law, " an access- ory is he who is not, the chief actor iu the ofience, nor pre-cnt at its perl'orm- ance, but is someway concerned iherein, either before or after the fact com mitted." 4 Blackstoue, 35. The accessory passes with the thing sold ; but what is an accessory, is a matter of fact, and it is not sufficient to show that a thing was used along with another thing to establish that the ona ACCES80HT ACCOUNT was the accessory of the other. Bell & Gardener et al. Judgment confirming, 14 June, 1878, Sir A. A. Dorion, C. J., Bamsay, Tessier, Cro^s, JJ., Monk, J., dis. Article 435 C. C, does not declare that the property of material belonging to another is transferred to the work- man whnn the added workmanship is so important that it greatly exceeds the value of the material employed. The workman has only the faculty of retaining the thing on paying the owner the price of the material, and thus be- •coming the owner. Beard & Milliken. Judgment confirming, 31 Oct. 1883. Sir A. A. Dorion, C. J., Monk, Ram -ay. Cross, Baby, JJ., Rep. 6 Leg. News, 381. (1) And so where settlers, in good faith, cut timber included in the timber reserve of another, made it into logs and drew it to the jet4e for trans- portntion, and the logs were seized by the owner of the reserve, and the v^alue of the standing timber was nbout $310, and the va'ue of the logs, including the cost of transport to the jet4e, was four times as great, the seizure will be maintained and the party who made the logs will be ordered to deliver them up unless he pays $310, the value of the standing timber, (arts. 434-5 C. C.) Reynor et ah & Thompson, Q. Judgment confirming as regards the seizure, but reforming as regards the amount, the S. C. having made appel- lants liable for the va ne of the loss, instead of the value of the standing timber,? Dec, 1 882. Sir A. A. Dorion,C.J.. Ramsay, Tessier Cross, Baby, J J. (2) Rep. 3 Deo. d'.A. 75, 5 Legal News 421, 12 Rev. Leg. 150. (1) Note. Article 434, C. C. saysi, " was the owiK-r," and art. 435, C. C. .says, the workmanship is ifera considered as " thu prin- cipal part." The chief justife treated these as vices cU redaction which the doctrine must correct. (2) Note. This Court appears to have made no distinction between the cost of transport and workinauship. Possibly it did not signify ACCOUNT Ts the statement furnish; ed by one who ha*,or has had, the adtni- nistrati'in of the property of another, or' in which another has an interest, or on whom such administration devolves by law, and who, in the language of the civil law, is called complahle. " Every tutor is accountable for his administra- tion when it has terminated." C. C. art. 308. And in certain cases before it has terminate I, C. C. art. 309. " Upon the dissolution of the partnership,eaoh part- ner or his legal representative may de- mand of his co-partneisan account and partition of the property of the part- nership ; " &c. C. C. art. 1898. v. Com- munity — Beneficiary heir. Where an account has been rendered and accepted, the Tutor cannot be called upon to render another account without asking to have the first account set aside. Desgroseilliers & Riendeau etvir., M. Judgment reversing, 22 June 1873. Dorion, C. J., Monk, Ramsay, San- born, Tessier, JJ. An action to account will be dismissed on demurrer if it appear by the allega- tions of the declaration that the Defen- dant has accounted, and that there has been a settlement, if there bo no con- clusions to set the settlement aside. Chevalier & Ciivillier et al, M. Judg- ment confirming, 21 June 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ., Rep. 2 Leg. News 239. Where an administrator has ren- dered an account to his ward, and paid over the balance apparently due to her, which accoimt and balance have been accepted by her, she cannot sue for a new account without conclusions to set aside the former account. Pierce & Butters. M. Judgment re versing, 17 Dec. in the particular case ; and at all events, the carriage of an article from a place where it has little or no commercial value to a place ffhere it must almost necessarily be brought, and on whiv h its main value depends, seem to stand on the same footing as the workman- ship. However, the articles do nor, say so, aii.t it would be easy to suggest extreme cases where it would he difficult to maintain the doctrine extended. ACCOTINT ACCOUNT 1879. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 3 Leg. News, 28 & 24 J. 167. Le tuteur dont la tutelle a ete annu- lee, et qui a rendu un compte de son administration aux nouveaux tuteurs, qui lui ont succede, et qui ont regu les pieces justificatives, et le reliquat de compte reconnu par le rendant compte, n'est pas tenu de rendre un autre compte en justice, et que les nouveaux tuteurs qui u'ont pas accepte le compte qui leur a ete rendu avec les formalites requises par la loi, n'ont d'action que pour debattre et faire reformer le compte presents, et non une action en reddition de compte. Methot & Du- fort el vir. Q. Judgment reversing, 8 Oct. 1883. Sir A. A. Dorion, C. J., Kam- eay, Tessier, Cross, Baby, JJ. Kep. 3 Dec. d'A. 262. Where an administrator has account- ed he will not be ordered to account again because certain vouchers are wanting. The obligation to produce vouchers is to produce those the admi- nistrator has, but he may justify his payments by other legal evidence. Hart & Hart. Judgment confirming 17 Dec. 1879. Sir A. A. Dorion C. J., Monk, Ramsay, Tessier, Cross J J. Eep . 3 Leg. News, 24, and 24 J. 161. The Secretary Treasurer of a building Society who has left the service of the Society and handed over all his books and vouchers to the Society is entitled to a judgment discharging his security and to radiate the hypothec on his pro- perty given as security for his faithful administration, within a delay fixed by the Court, and in default of giving such deed the judgment to stand therefor. La SocUti Permanente de Construction & Longtin. Judgment contirming, 22 June 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, J J. Where the account rendered by a tutor, or one acting as tutor, was irregular and rendered without vouch- ers, he may be compelled to account anew, by an action seeking to set aside the former account as irregular and fraudulent, although there may be a notarial discharge. Miller & Coleman et vir Judgment confirming, Jun& 1875, Dorion,'C. J., Monki Taschereau, Ramtay, Sanborn, JJ. An action to account will lie against the administrator of a joint-adventure. But the administrator will only be obliged to pay the reliqvat de compte in the form in which he obtained it. Thus he will not be condemned to pay the face value of stock, unless he fails to tender such stock within a period to be fixed by the Court. Semble, it will be presumed stock is of the value it bears on its face, unless there be evidence to the contraiy. Foley & Slvart. M. Judgment modifving. 21 Dec. 1875. Dorion, C. J., Monk,"Tas- chereau, Ramsay, Sanborn, J J. Rep. 20 J., 183. There was a joint-adventure for the purchase of certain real estate in the name of appellant. The partners were, on certain conditions, each to have a thare. It appears they left appellant to bear the amount of the acquisi- tion, and he aiterwards sold the proper- ty for his own profit. Respondent sued for his share of the price of sale. The appellant tendered an account of his transaction. The action should have been to account, but the appellant having tendered an account covered the irregularity. Brewster & Xainft. Judg- ment confirming 22 Dec. 1879, Sir A, A. Dorion C. J., Monk, Ramsay, Tessier, Cross, JJ. The appellant brought suit against the Respondent, alleginga purchase by them jointly of certain promissory no- tes and securities which the Respond- ent collected for their common profit, the appellant's share, acknowledged by the Respondent, being $713.75 ; the ap- pellant added the common assumpsit counts, and prayed for an account in the usual form with vouchers, and that, in default, the Respondent should be condemned to pay the i-aid sum of $713.75. Held, on demurrer that the demand for an account was not war- ranted by the allegations of the decla- ACCOUNT ACCOUNT 10 ration, and was not the proper remedy tor the cause of complain therein «tated. Semble, a party suing another to account in a partnership matter, is not obliged to tender Hn account or to declare that he has none to give. Michaiid & Vezina. Judgment confirming, 7 Deer. 1880. Sir A. A. Dorion, (". J.. Monk, Ramsay, Cross, JJ. Rep. 6 Q. L. R., 353. Lorsqu'un assooie poursuit un autre associe en reddition de compte, il n'est pas oblige d'alleguer qu'il a lui-meme rendu compte, ou q'l'il n'en a pas a Tendre, il Ini sutfit d'alleguer que le dp- fendeur a en sa possession des biens ou sommes de deniers appartenant a la so- •ciete qui a existe entre eux, dont il n'a pas rendu compte. A defaut par le defendeur de rendre compte dans le delai lixe par le juge ment qui lui aordonne de rendre comp- te, le demandeur peut proceder a eta- blir lui-meme un compte d'aprps Parti- cle 633 du Code de Procedure Civile, ou il peut, suivant la pratique suivie Avant le Code, faire condamner le de- fendeur a lui payer soit une ou plu- sieurs provisions jusqu'a ce qu'il lui ait rendu compte, soit une somme defini- tive pour tenir lieu du reliquat de ■compte, a la discretion de la Cour. Gauthier & Iloy,Q,. Judgment refusing motion for leave to appeal. 7 Dec. ] 880, Sir A. A. Dorion, C.J ., Monk.Rnm- say, Cross, Baby, J. J. Kep. 1 Dec. d'A., 149. 10 Rev. I eg. 443. Bourgoin & Plante, M., Judgment reveising, 22 March 1 876. Dorion, C. J., Monk, Ram- say, Sanborn, Tessier, JJ. Rep. 9 Leg. News, 461. In this case there was an incidental ■demand, the Court below dismissed the principal demand with costs, and maintained the incidental demand for $37.50 with costs in an action for that amount. This Court thought both ac- tions should have been dismissed, as ■nothing was due to one or other party, each party paying his own costs in both «ases in the Court below, and costs of ihls appe <1, and each half of the costs jOf the expertise. A^ party cannot, by motion, obtain delay to answer an action en reforma- Hon de compte until a book ia produced by Plaintitf, the existence of which Plaintiflf deny. Les Commissairet d£coles de Notre Bame de Portnevf & Fournier, Q. Judgment reversing, 7 Dec. 1882. Sir A. A. Dorion, C.J.,Monk, Ramsay, Cross, Baby, JJ. A woman commune en biens with her late husband, and l£gataire universelle en usufruit may bring an action against the partner of her late husband for an account of the partnership, without calling in the nv-propri£taires. Gin- gras & Dignan, Q. Judgment confirm- ing, 5 Dec. 1878, Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Appellant sued Respondent for an account of a raft sold for him by Re- spi indent, who answered, that he had no account to render, as the raft be- longed to one Bannerman to whom he had accounted, and that he owed nothing. Appellant's pretention is that the receipt he gave Respondent for an advance, was in these words : '• Please hold, subject to the order of Messrs. Ross & Co., my raft now lying at your cove and oblige." Signed : " John Doran." If this stood alone, it would be conclusive, but the whole trans- tion is proved. It is established that whatever was the nature of the trans- actions between Bannerman and Doran, Ross knew no one but Bannerman, and that the money was given to Ross on Bannerman's credit, and there can be no doubt Ross understood the raft was Bannerman'.-, and that Doran left him for two years under that impression, during which time Ross settled with Bannerman, without any knowledge of Doran's claim to the raft. The word my raft, in the ordinary language of the people, does not necessarily imply prot- perty, but possession. ( 1 ) Doran & Boss, Q. Judgment conHiming, 5 Oct. 1883, Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. (1) Note. — The Supreme Court reveised the decisions of the two courts. 11 AOCOTFNT ACQUIESCENCE 12 A judgment to account within thirty days does not become executory de piano by the lapse of the thiity days. Le cure de Beauhafnois & RobiUard, M. Judgment confirming, 21 June, 1879. Sir A. A. Do ion, C. J., Monk, Bamsay, Tessier, Cross, JJ. Monk and Tessier, JJ., dis. Eep. 2 Leg. News, 236. The Appellants by deed of donation gave to the Respondent, their mother, live pieces of property, subject to the charge of paying hypothecs to the amount of *50U0, and to the Appellants a rente viag&re of KSS. This continued till the 2nd February, 1881, when, by another deed the donation was an nulled.Respondent rendered an account of the administration of their property, which they accepted "«e r^servant le droit de verifier le eompie des recetfes, alors a cellts produit par Vlntim^ et de redamer de ce dernier d demande le montaiit de loute errevr ou omission en leurfavevr." The Appellant brought an action for debt anil en reformation de eompie. Held by the Superior Court, that Respondent was not the mandat- ory of Appellants when he rendered the account, and owed them no account, and that therefore an action en refor- mation de compte did not lie against him. On the facts that the Defendant had given Appellants an hypothec ex- ceeding what was due them. Darvcav €t al, & Darveati, Q. Judgment con- firming, 8 May, 1 884. Monk, Ramsay, Tessier, Cros", Baby, JJ., Ramsay, Cross, J J., were of opinion that Appel- lants were entitleii to have the account between them and the Kespondent re- formed, as it was the basis of their rights. Lorsqu'un defendeur poursuivi pour un etat de compte de la gestion d'un immeuble et pour une somme reclam^-e Bur la vente de cet immeuble, en vertu d'une convention speciale, plaide au premier chef de Taction qu'il n'a jamais He mis en demeure de rendre compte, mais qu'il a toujours ete pret a le faire, «t produit son compte avec le plai- doyer; et plaide au second chef de faction, qu'il ne doit rien au deman- deur en vertu de la convention all6- guSe ; le compte accompagnant le plai- 1 1 oyer ne sera pas rejetp sur motion comme ayant eie produit irreguliere- ment et prematurement.' Un tel compte ne pent pas etre rejer te sur motion avant I'enquete parce que le chapitre des depenses contient des items qui ne paraissent avoir au- cune oonnexite avec la gestion de la propri-te dont on demande compte r Cette question ne pouvant etre discutee et decidee que sur un debat de compte. Dorion & Dorion, M. Judgment rever- sing, 26 November, 1884, Sir A. A. Do- rion, C. J. Ramsav, Tessier, Cross, Baby, JJ. Reported M". L. R. I. Q. B. 65, 7 Leg. News, 397. Les parties ayant lie contestation sur le merite du compte rendu, il n'y a plus lieu a se plaindie des defauts de form© du dit comi^te. Lamareh'e & L'Heu- reux, Q. Judgment reversing, 8 Ucto- ber, 1885. Sir A. A. Dorion. C. J., Ram- say, Tessier, Cross, Baby, J J., Rep. 11 Q. L. K., 342. ACCOUNTANT Ts a person skilled in keeping accounts. " In matters where accounts have to be rendered or adjusted, or which require calculations to be made, and in matters of separa- tion of property, or partition of com-r munity or succession, the Court may refer the case to one or more persons skilled in such matters ; " C. C. P. 340. V. Experts. ACQUIESCENCE. — In its widest sense acquiescence is any adhesion of a per- son to a thing done. It seems, how- ever,it is only usual to apply it to certain contracts which expressly recognize a state of things as binding. Technically, therefore, it is for the most part ap- plied to an implied assent. The liabi'- iity to be inruried by acquiescence can only be established by such proof as would establish an obligation for a like matter. An arquiescence which would have the eifect of resiliating another contract or creating a new obligation', can only be proved as a contract can bo proved. But a right may sometimes bft lost by acquiescence in a state of thing* 13 ACQeiESCENOE ACQUIESCENCE 14 incompatible with the continued Exist- ence of such right. Pleading over to the nierita of an action, is such an ac- guiescemen^ in-a judgment dismissing an exception d la forme, that leave to ap- peal will be refused. Coti vs. McGreevy, Q. Judgment 7 Sept., 1875. Dorion, C. J., Monk, Taschereau, Kamsay, San- born, J J. Acquiescence covers iregularities of procedure. Beavehamp 45,000. Lucy Jane Stevens became a party to the deed, and granted to Shaw a priority of hypoihec over her own. The action is by the Appellants ai creditors under the transfer of the hy- pothec from Bonnell, to set aside and (1) JI GTE — It is difficult to see in what this differs from sec. 1 iu which the author objecta to the statement of art. 13 U. C. F. Ed. • n ACTION ACTION 18 annul, as illegal and void, tlie hypotliec by Campbell to his wife, and the prior- ity given by the latter to Shaw. As the Appellant had been paid the full amount of the note of $26,000 for which the hypothec of $15,000 had been transferreil as collateral security only, the Appellant had no interest to contest the hypothec given by Camp- bell to his wife, and the priority given by the latter to Shaw. The wife and children of a man, who, by his father's will, inherited real estate substituted to his children, to procure him aliments, and which was > by the will declared to be insaisissahle, cannot intervene in the proceedings in execu- tion of a judgment by which the reve- nues of such real estate were seized, Molson & Carter. M. Judgment con- firming, 24 March, 1883, Sir A. A. Do- rion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk, Cross, J.J., dis. But the husband can, in his own name, set up the conditions of the will to defeat the recourse of the creditor, to whom he has hypothecated the pro perty as being his own. Holmes & Car- ter, M. Judgment reversing, 24 March, 1883. Sir A. A. Dorion, C. J., Ramsay, Cross, Baby, J J., Ramsay, J., dis. Rep. 6 Leg. News 372, 3 Dec. d'A. 279. The mother of an illegitimate child may sue for the expenses of seduction for aliments for the child, and en decla- ration de paternity. Kingsborough & Pound, Q. Judgment confirming, 5 March, 1878, Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 4 Q. L. R., 11, 1 Leg. News, 115. A notary, who has been a witness on the inscription en faux of his own act, and in his deposition declared he had no interest in the issue, has a right to intervene and carry on an appeal in his own name, from the judgment declaring his suit faux, [ 1 ) Defoy & Fort^, M. Judg- ment, 20 Dec. 1879, Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ., Rep. 3 Leg. News, 36. (1) Note. — Query its to the elfect of liis tes- timony. A. acting for B., his undiscovered principal, sold to C. a cargo of coal to arrive, C. to have the option of taking tho coal at the weight given in the bill of lading or of having it re-weighed at seller's expense. C. accepted the cr'al without re-weighing, but afterwards weighed it in his own yard, without notice to the seller, and mixed it with other coal. Held, that B. the undis- covered principal, might sue on the contract in his own name. That C, by tendering in his second plea the price of the coal admitted to have been re- ceived, aknowledged that the action had been properly brought by B. The V'lnada Shipping Co. & The Victor Hudin Cotton Co.. M. Judgment rever- sing, 24 March 1882, Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. The Chief Justice and Ramsay, J., dis. Rep. 5 Leg. News. 302, 2 Deo. d'A., 356. And the interest must create a lien de droit. So where two butchers make a contract by which one cedes to the other a contract he has to supply meati, and such contract is terminable at the will of the party to be supplied, no ac- tion will lie against the cedant if the contract is terminated by the party to be supplied. Bayard & Versailles, M'. Judgment confirming. Dec. 3875, Doi- rion, C. J., Monk, Ramsay, Sanborn, JJ. The mot/ens which would support a BeguSte Civile will support an indfr pendent action to set aside the judg- ment improperly obtained. Kellond-Hi. Reid, M. Judgment reversing. 20 June^ 1874. Taschereau, Ramsay, Sanborn and Loranger, JJ. Rep. 18 J., 309. ■ ' To give right of action the interest must be lawful. So, it seems, that'a contract by which two butchers agree that they will not supply a certain party with meat is illicit, and no action will lie by the one against the other who breaks the contract. Bayard & Versailles, M. Judgment confirming, December, 1875, Dorion, C. J., Monk, Ramsay, Sanborn. J J. Where appellant agreed with Re- spondent that she should not bid ab'an X9 ACTION ACTION 20 aucti"!! sale of property, on which Re- spondent had a claim, and that Appellant would pay Respondent ; the agreement was held to be bind- ing because there was a lawful con- sideration. Beaudette & Mahoney, Q. Judgment confirmmg, 6 March, 1879. Sir A. A. Dorion, C. J., Monk, Kamsay, Tesaier, Cross, JJ., Bep. 5 Q. L. B. 165. But where false bidders are employed at an auciion sale to enhance the price, and they bid, the purchaser will not be held liable to carry out the sale, JeiU et al. & McNaugUon, M. Judgment coniii-ming. 22 Sep. 1876, Dorion, V,. J., Monk, Ramsay, t^anborn, Tessier, JJ. The Chief Justice and Sanborn J. dis. Rep. 20 J. 255. Two actions will not lie between the same parties for the same matt er, for the Defendant will either have the ex- ception of res judicata or oilitispend. €71 ce. § 3. Res judicata creates a presump- tion ji/w e< de^wre. It applies only to that which has been the object of the adjudication, and when the demand is founded on the same cause, is between the same parties acting in the same qualities, and is for the s^ame thing as in the action adjudged upon. C. C. 1241. An action of damages will not lie against a party to a previous suit by his adveisa y, for an alleged false affidavit by which such party obtained a final judgment in his favour in the previous suit. The first judgment is ren judicata Boisclair il retainer. If thny were not, then he should have established a con- tract. Les intimes ayant reclame de I'appe- lante une somme de $508, pour hono- raires et debourses dans des causes dans lesquelles ils avaient occupe pour elle en leur qualite d avocats et prncu- reur.''. JugS: — (Jonfirmant lejugement de la Cour de premiere instance ; lo. Que les intimes ont 6te autorises par I'agent de I'Appelaate a intenter 31 ALIMENTS APPEAL 32 les actions pour lesquelles ils reolament maintenant les frais 2o. Que pour priver un avocat de ses honoraires, il faut prouver qu'il a agi avec fraude ou avec une ignorance gros- siere des devoirs de sa profession. 3o. Que I'article 1107, C. V. C, per- met de porter Taction petitoire ou Fac- tion possessoire devant laCourde circuit contre toute personne qui detient ille- galement des terjes tenues en franc et commun soccage, luais sans auoun pre- judice a la juridiction de la Cour Supe- rieure, et que les intimes, qui, sans ins- tructions speciales, ont porte les actions devant la Cour Superieure, ne doivent pas etre pour cela prives de leurs hono- raires et debourses, surtout lorsque la Cour de premiere instance les leur a accordes. Davidson & Laurier et al, Q. Judgment confirming, 6 June, 1881. Sir A. A. Dorion, C. ]., Monk, Ramsay, Cross, Baby, JJ. fiep. 1 Dec. d'A. 366 AFFIDAVIT.— A declaration in writing under oath. An application to take an affidavit, in support of a petition for a writ of Habeas Corpus, setting forth that the facts alleged in the petition were true 60 far as the party to be sworn knows, will be refused, such an affidavit being of no value, as it declares nothing relat ing to the matter in question. Exp. McCarthey, M. In Chambers, 26 Feb. 1875. Eamsay, J., v. capias. AFFREIGHTMENT.— Contracts of af- freightment are either by charter party, or for the conveyance of goods in a ge- neral ship," 24U7 C. G. Charter-party, 2414 C. C. Bill of lading, 2420 C. C. AGENCY.— Fide Mandate. AGENT.^Fide Mandate. ALIMENTARY PENSION. — Is the allowance granted to one in want, by another or others obliged by law to main- tain him. B. Aliments — Maintenance. ALIMENTS — "On en tend par cemot, la nourriture et les autres choses n£ces- saires d lavie, comme l habitation, lesvi- iements. On donne le mSme nom aux deniers accords pour tenir lieu de ces choses." Merlin. The English version of the Code has adopted the word " main- tenance " as an equivalent. C. C. 169 and 170. In the civil law as adopted in Scotland, the word '' aliment " is used to signify "a fund of maintenance." Law Diet. In English law " alimony "is the allowance to the wife out of the es- tate of the husband from whom she is separated. Aliments in English, strict- ly speaking, means nourishment, food. Perhaps it would have been no great violation of linguistic propriety, if the Code, copying the terminology of the French and Scotch law, ha/l extended the meaning from the thing to what would produce it. But if it was thought necessary to be original, sustenance or sustentation would have been prefer- able. The word " maintenance " in our law, already designates a misdemean- our. V. Maintenance. ALTERNATIVE OBLIGATION— p.Obli cation — Pleading and Practice. AMEUBLISSEMENTS. —v. Mobiliza- tion. AMIABLE COMPOSITEUR.- "^OTiafiZe compositeur (ou arbitrateur), est celui qui est £lu par lesparties pour terminer leur differend d, I'amiable, selon len- quite, sans itre tenu de garder exacie- ment les formalitis de justice, et la vi- gueur de droit." Ferrierei;. Arbitrateue — Arbitration. The quality of amiable compositeur does not permit the referees to enlarge the scope of the matters submitted to them. JDaigle & Sevigny. Q. Judgment 4 June, 1875. Dorion C. J., Monk, Tas- chereau, Ramsay, Sanborn, JJ. ANIMALS LOST AT SEA— ». Freight. APPEAL ^To the Court of Q. B General provisions. § 1. Who may appeal. § 2. Authorisation. ' § 3. Enquete in appeal. § 4. Appeal rejected on motion. § 5. Evidence. § 6. Miscellaneous. 38 Al'l'EAI. 34 § 1. Who may appeal. Geneially those who have an interest may appeal ; even those not parties to the suit may inter- vene to prosecute the appeal And so a notary whose minute is attacked en faux, and who has been examined as a witness on the inscription en faux, and declared he had no interest in the suit, will be allowed to intervene in order to appeal from the judgment declaring his deed to be faux. Defoy & ForU. M. Judgment confirming, '3) Dec, 1879. Sir A. A. Dorion C. J., Monk, Ramsay, Tes- sier, Cross JJ. Rep. 3 Leg. News 36. The party who made default may ap- peal. , And an appeal may be instituted by an interim assignee. Major & al. & Chadwick. M. September, 1 875. Dorion C. J., Monk, Taschereau. Ramsay, San- born JJ. Appeal will not lie in the name of a person deceased ; and if objected to, the heirs will not be allowed to take up the instance. Kirby & Ross. M. Judg- ment, 21 March, 1874. Taschereau, Ramsay, Sanborn, Loranger JJ. Tas- chereau, dis. il) But if the respondent has acquiesced by joining in the procee- dings, allowing a reprise d'instance by the representatives of the deceased, the motion to reject the appeal will be re- fused, as coming too late. Hagarty & Morris. M. Judgment 21 Sep. 1874. Do- rion C. J., Monk, Taschereau, Ramsay, Sanborn JJ. Rep. 19 J. 103. § 2. Authorisation A married wo- men who appeals must be autho- rized, and an appeal brought with- out authorisation will be rejected. (1) Note. — " All writs of cn-or and appeal may be brought eitiier by the party against whom the judgment complained of was ren- dered, or, in case of his death, by his exp.cu- tors or administrators, if the judgment was to record any debt, damages or personal property, or by his heirs, devises, or assigns (ayant cau- se) if the judgment was for the recovery of real estate or the possession thereof or if the title to real estate was determined thereby. " Si. Jean eed the plaintiff appealed. He therefore contended that the matter in dispute in the first case was the whole demand, while in the latter case it was only the amount of judg- ment that was in dispute. It was as thougli the plaintiff had filed a retraxit. There is perhaps some difficulty in constming the words of the statute so as to .support the judgment, and on the other liand the difS- culty IS certainly not less in taking the amount of the judgment as deciding the right of appeal. The statute does not say that appeal lies when the matter in dispute by the appellant amounts to |2000, hut that appeal lies in any case wherein the sum ov value of the matter in dispute is,'&c. It is therefore the amount of the case which is the test of its appealability. Mr. Justice Tas- chereau's distinction appears to me to be visionaiy, and the illustration of a retraxit fallacious. The case is altered by the retraxit, it is not by the judgment. It would also have tlie inconvenience of making the case appealable for one party and not for the other, a construction the words of tlie statute will not bear. 53 APPEAL APPEAL 54 ments rendered in appeal or error by the Court of Queen's Bench : 1 . In all cases where the matter in dispute relates to any fee of office, duty, rents, revenue, or any sum of money payable to Her Majesty ; 2. In cases concerning titles to lands or tenements, annual rents and other matters bj' which the rights in future of parties may be affected ; 3. In all other cases wherein the mat- ter in dispute exceeds the sum or value of five hundred pounds sterhng." C. C. Leave to appeal to the' Privy Council is only gi-anted from final judgments. ( 1 ) Leave to appeal to the Privy Council from a judgment of the Court of Queen's Bench, Quebec, will be granted, al- though the opposite party has already obtained leave to appeal to the Supreme Court of Canada. The City of Montreal & Devlin. Judgment 22 March, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, J J., Kep. 1 Leg. Mews 151. Under the Insolvent Act of 1875, the appeal to the Privy Council is not taken away. See sections 8 and 128. Knight it La Banque Nationale. Q. Judgment S March, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, McCord, JJ. 'Phe defendant has a right to appeal to the Privy Council from a judgment on an action to set aside a Crown Patent, establishing Respondent's title to lands. Pacaud & Rickdby. Q. Judgment 4 Dec, 1875. Dorion, C. J., Monk, Ram- say, Sanborn, JJ. An appeal to the Privy Council can be allowed only from a final judgment. But as a judgment dismissing an at- (1) In cases in which the appeal to the (J. B. is lost by decision in Keview under 37 Vic, c. 6, s. 3, there may be appeal to the P. C. lb. s. 2. tachment before judgment cannot be remedied at any other stage of the case, the Court holds that the judg- ment was a final one, and the motion for leave to appeal to the Privy Council must therefore be granted. Dallimore & Brooke. M. Judgment Sep. 1874. Wotherspoon's C. C. P. note to art. 1178. Leave to appeal to the Privy Council will be granted from a judgment main- taining a capias. Goldring & The Ho- chelaga Bank. M. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, JJ. Rep. 2 Leg. News 232. Commissioners were appointed for the expropriation of certain real estate in Montreal, under 27 ana 28 Vic. 1 c. 60. They made an award, which the Cor- poration thought extravagant and be- fore the homologation of the report, the Corporation moved the Superior Court to have the Commissioners removed for want of diligence and fidelity in the discharge of their duties, (sect. 9.) This motion was granted and new Commis- sioners were appointed. The Commis- sioners appealed to this Court and the judgment of the Superior Court was reversed. Leave to appeal to the Privj' Council was resisted on the ground that this was an Interlocutory Judgment. Held, that it was final as regards the Commissioners. Leave granted. Brown (Ik al & The Mayor, Sc, of Montreal. Judgment 1874. There is an appeal to the Privy Council from a judgment setting aside an injunction, if the amount involved be sufficient, or if the subject matter be of a nature to permit of an appeal in an ordinary case. McDonald & Joly. M. Judgment 22 March, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, J J. 2 Leg. News 104. No appeal lies to the Privy Council from a judgment upon demurrer, for there is nothing in the judgment which cannot be remedied after final judg- ment ; the judgment is merely interlo- cutory, and motion for leave to appeal to the Privy Council cannot be granted., 55 APPEAI, APPEAL 56 Brooke & Bloomfidd, M. Judgment, 21 Sep., 874. Wotherspoon's C. P. C, note to ar- ticle 1187. The judgment granting a new trinl is Interlocutory, and leave to appeal to the Privy Council, will not therefore be granted." South Eastern Counties Rail- way Co. & Lambkin. M. -Judgment, 13 June, 1877. Note AppUcation was subsequently made to the Judicial Committee for leave to appeal, and it was gi-anted, and the judgment granting a new trial was reversed. It is considered that this de- cision of the judicial committee does not reverse the rule that leave to ap- peal will not be granted on an interlo- cutory judgment by the Court of ueen's Bench. Leave to appeal to the Privy Council will not be granted from a judgment refusing to discharge a party arrested under the warrant of the Speaker of the House of Assembly of the Quebec Legislature. It is because the case was a criminal case ? Thejudges were divid- ed. Exp. Dansereau, M. Judgment, 19 Feb., 1875. Dorion, C. J., Monk,Tasche- reu, Eamsay, Sanborn, JJ. Leave to appeal to the Privy Council will not be granted from a judgment maintaining a prohibition against the council of the bar. O'Farrell & Bras- sard, Q. Judgment, 4- March, 1878, Dorion, C. J ., Monk, Ramsay, Tessier, Cross, JJ. Rep. 1 Leg. News 115. Leave to appeal to the Privy Coun- cil will be refused on the application of a relation from the judgment of the Court of Queen's Bench, allowing a writ of Prohibition to issue, restraining the Council of a section of the bar. O'Far- rell & Brossard. Judgment, 4 March, 1878, Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. Rep. 1 Leg. News, J15. The amount originally in issue must govern the right of Appeal to the Privy Council. And even where there is a cross-demand for an amount in itself,' not appealable, it is so connected with the original case as to form part of the matter in dispute in the case, and it is therefore appealable. Bariley. & Bar- tlett & E. Contra. M. Judgment, 14 Dec, 1877. In calculating the amount necessary to make a case appealable the interest accrued during the suit, cannot be con- sidered. Stanton & The Home Insur- ance Co. M. Judgment, 20 Sep., 1879, Dorion. C. J., Monk, Eamsay, Tessier, Cross, JJ., Rep. 2 Leg. News, 314; 24 J. 38. (1) Where the action is to recover back a sum of money exacted illegally from the Appellant under an assessment, the validity of the roll not being in question, leave to appeal to the Privy Coun- cit will not be granted. Future rights, at least such rights as are contemplated by the article, are not affected by the judgment. If the roll were in existence for three years, the total amount at stake would not give the right of appeal. Valois & Les Com- missaires d'ecoles d!Hochelaga, also Lussier & The same, M. Judgment, 17 Sep.. 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, JJ., Rep. 3 Leg. News, 309. The certificate of the Registrar of the Privy Council stated that the case '' stand-referred" to the Privy Council and it was moved that the record should be ordered back to the Superior Court because this certificate does not show that any proceedings had been taken within six months. Motion refused. The Mayor ier, Cross, JJ., Rep. 10 Rev. L§g. 153. Where arbitrators have valued the land as a whole, and «iot for so much by measurement, an error in the extent will not invalidate the award. And the rendering of professional services as a notary, habitually, does not dis- qualify such notary as arbitrator to the person to whom such services are rendered. And in any case where the arbitratoi" or one of the parties not personally interested, might have been recused, and the ground of recusation was known to the other party, and he acquiesced in the award, this ground of recusation is not sufficient to make the award null. The North Shore Railway Co. et les Ursulines de Quebec, Q. Judg- ment confirming 8 October, 1884. Arbitrators named to assess damages 61 ASSESSMENT ASSESSMENT 62 done by the works of a railway com- pany to a stone-quarry, cannot, by their award condemn the railway com- pany to alter their works or to pay an annual and perpetual rent to the lessee of the quarry. The Montreal, Ottawa & Occidental Railway Co., & Bourgui- gnon, M. Judgment reversing 14 Dec, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ., Tessier, J., diss., Kep. 25 J. 96, 9 Rev. Leg. 631, 2 Leg. News 131. The Court, may of its own motion, refer to the decision of arbitrators any case of dispute between relations, con- cerning partitions, or other matters of fact which it is difficult for the Court to appreciate, art. 341 C. C. P. Robert & Robert, M. Judgment confirming 22 Dec, 1876. Dorion. C. J., Monk, Eam- say, Sanborn, JJ., Tessier, J., dis., Rep. 21 J. 18. ARPENTEUR. — An arpenteur was an officer appointed to measure lands. Ferriere verbo Arpenteur. See also Mon- tigny " Histoire du droit frangais," p. 582, for an account of the office. Now •■'no person shall act as a Surveyor of lands within this Province (the late Province of Canada), unless he has been duly authorized to practise as a land Surveyor according to the provisions of this act (18 Vic, c 83), or had been so authorized before the passing hereof, I to wit of said act) according to the laws then in force.'' C. P. C, c. 77, sect. 5. But see 39 Vic, c. 34, Q. 43 et 44 Vic, c. 23, Q. 45 Vic, c. 16, Q. 46 Vic, c. 35, Q. Surveyors of Dominion lands. 35 Vic, c. 23, (Repealed). 39 Vic, c. 19 (Repealed). 42 Vic, c 31. F. Bor- NAGE. ARREARS. — Are what is overdue of any revenue or rent. (1) ASSESSMENT. — Primarily the valua- tion of property for the purpose of taxation ; it is also used for the amount assessed. (1) Note. To this the learned judge had added a query as to Aliments, and referred to a case on the subject as then before the court but does not say what case. Ed. When an assessment roll is illegally made, more particularly when it is made with the fraudulent intent of overcharging a certain class of rate- payers, the Court will on petition pro- hibit the execution of process by the Corporation to levy a tax under such roll. Morgan & al. & Cot4 & al. M. Judgment June 22, 1880. Monk, Ram- say, Cross, JJ., Dorion, C. J., and Tes- sier, J., dis. And where parties have paid a tax under such circumstances, an action will lie to recover it back, and to set aside such assessment roll. Lus- sier & Corporation of Village of Ho- chelaga. M. Judgment 22 June, 1880. Monk, Ramsay, Cross, JJ., Dorion, C. J., and Tessier, J., dis , and in another case of Valois & Corp. of Hoclielaga. Rep. 2 Leg. News, 274. An assessment may be set aside in the Circuit Court if it appears to have been made without regard to the direc- tion of laws established as necessary for the protection of the rate-payers. And an appeal will lie to the Court of Queen's Bench from any judgment of the Circuit Court in such matter. Rolf & al. & The Corporation of the Town- ship of Stoke. M. Judgment reversing the judgment of the Circuit Court 3 February, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. ■24 J., 103. 3 Leg. News, 69. The same question is decided in the case of McLaren & al. & The Corpo- ration of the Township of Buckingham. M. Judgment reversing, June, 1875. Monk, Taschereau, Ramsay, Sanborn, Sicotte, JJ. The County Corporation cannot bring a direct action against an individual rate-payer for a County rate. Its action is against the municipality. Roberge & Corporation of County of Levis. Q. Judgment reversing, 5 December, 1876. Monk, Ramsay, Sanborn, Tessier, JJ., Tessier, J., dis. The property of a railway company existing under Dominion legislation, may be assessed under a local act by the corporation of the municipality through which it passes, for a special 63 ASSESSMENT ASSIUXEP; U4 rate to form the sum of money subscrib- ed by such municipal corporation for the purchase of stoclt in another rail- way company. The failure to deliver to the secretary treasurer the valuation rolls in the month of June, in the year in which it was made, does not invahdate such roll. Section 66, 36 Vic, chap. 60, is only directory. The Grand Trunk Railway Co. of Canada & The Corpo- ration of the Town of Levis. Q. Judg- ment confirming, 7 March, 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Kep. 10 Rev. Leg. 612. An assessment roll, (to defray the cost of an improvement), which is not completed until after the powers of the commissioners expire, is absolutely null. The Mayor &c. of the City of Montreal & Hubert, M. J udgment con- firming, June, 1876. Sir A. A. Dorion, C. J., Ramsay, Sanborn, Tessier, Belan- ger, JJ. and also in a case of the same corporation against Stephens, and against Barron, and against Pinson- sonneault et al, and against Sutherland and so also where the commission did not report until after their powers ex- pired, the assesm ent roll was null. Baylis The City of Montreal, M. Judgment reversing, 22 Sep., 1879, Sir A. A. Do- rion, C. J., Monk, Ramsay and Tessier, JJ. Te-sier, J. dis. Rep. 23 J. 301. 2 Leg. News 340, 10 Rev. Leg. and also see Bisson & The City of Montreal, M. Judgment reversing, 22 Sep., 1879. Rep. 23 J., 306, 2 Leg. News 340,10 Rev. Leg. 100. And where an action was brought to have an assessment roll to defray the cost of an improvement declared nuU and void, and, after the institution of the action. Plaintiff had paid the amount for which he was assessed, in order to be relieved from an execution which had issued against his effects, such pay- ment was not an abandonment of his right to have the roll declared null and void as far as he was concerned for he paid under compulsion, and did not acquiesce. Bisson & The City of Mon- treal, M. Judgment reversing, 22 Sep., 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, JJ., Tessier, .J. dis. Rep. 25 J. 306. 10 Rev. Leg. lOO. 2 Leg. News 341. ASSESSMENT.— Special. Where it was stipulated in a deed of sale that the purchasers should retain an amount to pay the Corporation of the City of Montreal a certain sum as a special assessment for an improvement, incase the proceeding in expropriation, then being contested were maintained, and the corporation abandoned said pro- ceedings, the vendor may recover the sum so retained ; and it is no answer in the mouth of the purchaser that to say, that the corporation has obtained power to make a new assessment. But the power to make a new assess- ment is a trouble de droit and gives the purchaser the right to demand security. Chabot & La Banque Jacgves-Cartier, M. Judgment reversing. 20 Sep., 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. And it is not necessarj- for the Plaintiff to produce the assessment roll if the whole facts are admitted. Baylis & The City of Montreal, 2Z J. 301. And also Bisson & The City of Montreal, 12 Rev. Leg. 100. ASSIGNEE. — V. Appeal. — Insolvency. ASSOCIATION V. Corporation. ASSUMPSIT Is a voluntary promise made by word, by which a man assumes or takes upon him to perform or pay anything to another. Termes des Legs, v. Assumpsit, Tomlins Law Dictionary, lb. An action simply for work and labour will not lie in favour of a person who has worked for a company, against the person who ostensibly acted for the company in employing the Plaintiff, although the company had no legal existence, if it appear that Plaintiff knew how matters stood. Guimond& Grondin, Q. Judgment confirming 8 Sep. 1881. Evidence of a quasi contract will not 65 ATTORNEY AWAUU 66 support an action in the assumpsit form, for goods sold and delivered. Ryder & Vaughan. Judgment confirm- ing 12 Nov. 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ . Eep. 3 Leg. News 391, 1 Dec. d'A. 19. ATERMOIEMENT — A kind of arrange- ment by which a debtor obtains from his creditor delay, and sometimes remission of part of what he owes, called in the " Code de Commerce " Concordat. Merlin, v. Ateemoibment, — Composition. ATTORNEY Is a mandaiaire, v. Ad- vocate & Attoknby, Mandate. C. C. 1732. Attorney is one appointed by another to do something in his stead. " Terms of the law." The mandate of the attorney or pro- cureur ad litem, differs in some impor- tant particulars from that of the man- datory adneffotium.'Potb..Tr. du Contrat de Mandat, No. 123. ATTORNEY GENERAL. — Attorney general in England is a great officer under the King, made by letters patent. Tomlins Diet. In Canada, since con- federation, "The Minister of Justice is ex-officio, Her Majesty's Attorney General for Canada, 31 Vic, c. 39, sect. 1. His powers and duties as such At- torney General, sect. 3. There is also an officer of the Province of Quebec called " the Attorney General," appointed un- der the great seal of the Province, " Bri- tish North America Act, 1867," sect. 1 34. The right of the Attorney General for the Province of Quebec to appear for the Crown cannot be questioned by a private person. Monk & Ouimet, Atty. Gen. pro Reg. M Judgment reforming December, 1874. Dorion C. J., Tasche- reau, Ramsay, Sanborn, Siootte, JJ., Eep. 19 J. 71. The Attorney General for the Prov- ince of Quebec claimed precedence for the hearing of his case as a privilege. The Court without adjudicating on the right allowed the special case to take precedence as it was a matter of gen- eral public interest. The Atty. Gen. & The Queen's Ins. Co., M. Judgment 11 June, 1877. Attorney General v. By Law. AUCTION. — V. Sale by Auction. AUCTIONEER Is a person licensed to sell by auction and outcry in the Pro- vince of Quebec. 41 Vic, C. 3, Sect. 2 sub. sect. 6. Question as to the right of auctioneers over property entrusted to them for sale. The decision turned on evidence solely, it being held, confirming the judgment of the Superior Court, that the auctioneer had not proved that the property was entrusted to him for .«ale ; and that he had advertised the property for sale without instructions of any kind. Booker & Craig. esqualiU. M. Judgment. September, 1875. Dorion, C. J. Monk, Taschereau, Ramsay, San- born JJ. AUTHORISATION TO SELL EN JUSTI- CE. «. Sale en Justice What authori- sation covers. AVAL. Est le cautionnement de celui qui se rend caution dans une lettre de change pour le tireur, ou pour quelque endosseur, ou pour I'accepteur ; la forme est que la caution met sa signa- ture au has de celle pour qui il se rend caution. " Pothier Tr. de contrat de change, No. 50. v. Pkomissoet Note. AVERAGE. — Is a charge which accrues during a voyage and falls sometimes on the merchant, sometimes on the owner and sometimes on both. Whatever da- mage or loss is incurred by any particu- lar part of the ship or cargo, for the preservation of the rest is called gene- ral average. Smith, Mer. Law. 401. v. Shipping. AVEU. V. Admission. AWARD. — Is the name given to the decision of arbitrators, v. Arbitratisn AND Arbitrator. BAIL. '"• Cai'ias Criminal La«-. BAIL.— «. Emphyteusis — Lease. BANKING.—" Banking, incorporation of banlis, and the issue of paper mo- ney " and also " Savings banks, " are Tvithin the legislative authority of the Parliament of Canada. B. N. A. Act, 1867, Sect. 91 ss. 83, 15 and 16. Banking is regulated by the charters of banks and by special statutes. 1888 C. C. " All corporations are prohibited from carry- ing on the business of banking unless they have been specially authorized to do so by their title of creation. " The statutes respecting banking, from con- federation up to the 42 Vic, c. 45 (1879), are enumerated in " the Reference Book " by Mr. Dubreuil. Since then the Parliament of Canada has pa~ssed : 1880 " an act to amend an act relating to Banks and Banking and to continue for a limited time the charters of certain banks to which the said act applies. " 43 Vic, c. 22," an act respecting certain Savings Banks in the Provinces of On- tario and Quebec. " Cap. 23, 1882. "An act respecting insolvent Banks" &c., 45 Vic, cap. 23, 1883, " An act further to amend an act entitled : " An act rela- ting to Banks and Banking, and the several acts amending the same. " 46 Vic, c 20. " An act to amend an act repeating insolvent banks" &c 46 Vic, c23. A bank taking security from a firm, for the renewal of notes of which such firm was endorser for credit, and which notes were those of a party insolvent were over due, does not give rise to a presumption that the firm endorser was insolvent or contemptated insol- vency. Stadacona Bank & Walker, es- qual. Judgment reversing. Sir A. A. Do- rion, C..J., Monk, Ramsay, Tessier, Cross, JJ. Rep. SO Rev. Leg. 381. The cashier of a Bank, who has en- dorssd notes for a customer of the Bank, may, if in good faith, take a hy- pothec on the debtors property to pro- tect himself on the endorsements. Thi- baudeau et al. & Beaudoin. M. Judg- ment reforming, 22 June, 1885. Sir A. A. Dorion C. J., Monk, Ramsay, Tessier, Cross JJ. Rep. 3 Leg. News 306. The customer of a bank bought a quantity of wheat for cash, and obtain- ed delivery promising immediate pay- ment. Being remonstrated with by one of the officers of the bank for having overdrawn his account, and being pres- sed for immediate settlement, he drew a bill on England, and attached to it the bill of lading for the unpaid wheat. The bank discounted the bill, and placed it to the customer's credit, where it extinguished his indebtedness, he never having had possession or control of the proceeds. The bill was not paid in England, and the wheat was sold for the profit of the baiik. Appellant sued the bank for the pro- ceeds of the sale on the ground that the bill transaction was fraudulent, and was only a covert mode of avoiding the terms of the Banking Act, and obtain- ing the payment of an over-due debt : Held confirming the judgment of the Superior Court, that the transaction was legitimate. Denholm & the Mer- chants' Bank. M. Judgment, 22 June 1877. Dorion. C. J., Monk, Ramsay, Sanborn, JJ. Ramsay, J. dissenting was of the opinion that the evidence esta- blished that the bill of lading was trans- ferred to cover a past due debt, that the oflBcers of the Bank knew that the wheat was unpaid , and that the bill transaction was simulated and unreal ; that the customer never had possession and control of the pretended proceeds of the Bill of Exchange, and that the Bank never, in effect, paid anything for said bill ; and therefore that the whole transaction was in fraud of the Banking Act. That the Appellant might have stopped the wheat in transitu 69 BANKING BANKING to and that not having done so, he lost his recourse against the wheat, but not against the customer of the Bank or his confederate. Reynolds Bros, shipped from Toledo, a port in the United States, 16,500 bushels of wheat by schooner to Kings- ton, Ont., the cargo to be delivered as per address in the margin of the bill of lading as follows : — " Order Reynolds Bros. ; notify Crane & Baird, Montreal, P. Q., " Care of St. Lawrence & Chicago Forwarding Co.," implying that, although the voyage of the schooner €nded at Kingston, the cargo was to be put in charge of the Forwarding Com- pany, destined for Montreal, Crane and Baird to be put upon their diligence by notice for any interest they might have in the cargo. The schooner hav- ing arrived at Kingston, the Forward- ing Company, the ordinary carriers for Crane and Baird, received the cargo and paid the lake freight to the master of the schooner. No new bill of lading was issued, but the agent of the For- warding Co. at Kingston, signed a receipt for the cargo across the face of the duplicate of the bill of lading. The respondents made advances on the ori- ginal bill of lading endorsed by the shipper.-;, but the wheat had been pre- viously delivered by the Forwarding Company at Montreal to the order of Crane and Baird, without the surrender of the original bill of lading. The question was whether the Appel- lant?, the Forwarding Company, were held to the same obligations as if they had been signers of the original bill of lading, which the respondents con- tended had force and effect until the cargo reached its destination in Mont- real, and whether the appellants as forwarders were bound to have de- manded and secured the surrender of the original bill of lading on delivery by them of the cargo of the consignees. The bill of lading was fulfilled, and became eifete by the delivery of the wheat at Kingston, prior to the assign- ment of the bill of lading to the Res- pondent?. The negociability of a bill of lading cannot be put upon precisely the same footing as a bill of exchange. An ad- vancer on a bill of lading should exer- cise reasonable diligence as regards the cargo it purports to represent. The alleged usage of trade, imposing the obligations incurred under the first bill of lading upon the carrier who accepts a cargo carried to an interme- diate port to forward it to its final des- tination by an additional transit, so as to require such ultimate carrier to pro- cure the surrender of the original bill of lading to free himself from responsi- bility, could not alter the established significance of the documents used, or the legal relations of the parties accord- ing to the facts of the case, or make liability depend upon obtaining the surrender of a document after it had exhausted its ef5Bciency and ceased to have any operation. The St. Lawrence and Chicago Forwarding Company & The Molson Bank. M. Judgment re- versing, 21 May, 1884, Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ, Monk, J. dissenting. Reported M. L. R. I. Q. B. 75, 4 dec. d'A. 16, 7 Leg. News, 367. Banks cannot acquire a lien on logs under the banking act (34 Vict. c. 5, s. s 46 and 47), if the pledge of these Ipgs was made for a previous indebted- ness, or if they were not held by virtue of a transfer of a receipt by a cove- keeper, or by the keeper of any wharf, -yard, harbour or other place, or of a specification of timber deposited in a cove, wharf, yard, harbour, warehouse, mill or other place in Canada, within the meaning of the said act. To acquire a lien under articles 1745, 1966 and 1967, C. C, there must be an actual delivery or possession of the property pledged, or of some document in use in the ordinary course of busi- ness, entitling the bearer thereof, to claim possession of such property. Boss et al. & The Molson Bank, Q. Judg- ment reversing, 8 March, 1881, Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ., Rep. 2 Dec. d'A. 82. tl BEACH A bank taking a transfer of shares as collateral security is not liable as a stock-holder for calls on such shares. The Railway and Newspaper ■ Adverti- sing Co. & The Molson Bank. Judg- ment confirming, 14 June, 1879, Sir A. A. Dorion, C. J., Monk, Eamsay, Tes- sier, Cross, JJ. Eep. 2 Leg. News 207. The transfer of shares of a bank, made in fraud of the Bank, may be set aside although the transfer have been accepted by the bank, provided such shares are held (i titre graiuit hy the nominal transferee. Walsh & The Union Bank of Lower Canada. Q. Judgment confirming, 4 June, 1880. iSir A. A. Dorion, C J., Monk, Eamsay, Tessier, Cross, JJ. Under 37 Vict.,c, 5, s. 34, there must be an interval of thirty days between the making of calls on stock, as well as an interval of thirty days between the dates fixed for payments. La Banqiie d' Eochelaga & Robertson. M. Judg- ment confirming, 27 Sep., 1883. Monk, Eamsay, Tessier, Cross, JJ., Monk, J., dis. Eep. 6 Leg. News, 307. Bank shares cannot be seized by saisie-arr§t. Sudan & al & Painchaud. M. Judgment confirming, June, 1875. Monk, Taschereau, Eamsay, Sanborn, Belanger, JJ. Indictment under banking act for making a willfully false and deceptive return. Verdict quashed on reserved case, Dec. 20, 1879. Reg. & Hincks. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. BANKING. — Misclassification is not matter of law, but of fact for the jury. /&. Eep. 2 Leg. News 421. 24 J. 116. Y. Deposit in Bank. — Warehouseman. BEACH.- "Navigable and floatable rivers and streams and their banks, the sea-shore, &c., are considered as being dependencies of the Crown domain. 400 C. C. The beach of a navigable river is not conveyed by an ordinary title of con- BET Ti cession from the Seignior, and it re- mains part of the public domain. The owner of the land facing the beach cannot contest the validity of Letters Patent of the government of Quebec conveying right over the beach of which he is not in possession. Motz 6 Carrier. Q. Judgment confirming, 7 Sep., 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ . BET " Of gaming contracts and bets." There is no right of action ior the recovery of money or any other thing claimed under a gaming contract or a bet. But if the money or thing have been paid by the losing party he cannot recover it back unless fraud be proved. 1927 C. C. The denial of the right of action de- clared in the preceding article is subject to exception in favor of exercises for promoting skill in the use of arms and of horse and foot races and other law- ful games which require bodily activity or address. Nevertheless, the Court may, in its discretion, reject the action when the sum demanded appears to be excessive. 1928 C. 0. A cheque given for a bet may be recovered by the innocent holder to whom it was delivered long after its date. Ladouceur & Morasse. M. Judg- ment 20 Sep., 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. The Chief Justice and Eamsay, J., dis., were of opinion that a cheque was not payment, concurring in this with the majority of the Court, and that the party taking the cheque could not recover on it, and that the party re- ceiving it long after its date was in no better position. Time bargains are not necessarily illegal, nor does the law refuse transac- tions intended to be fulfilled, although it may happen, contrary to the expect-, ation of the parties, that they are not really carried out as comtemplated, but from unforeseen causes come to be set- tled by diflferences. But if, in contem- plation of the parties, they are at their inception intended to be speculative 13 BILL OF EX. & PROM. NOTES BILL OP EX. & PROM. NOTES Ti transactions, to be settled by adjust- ment of prices according to the rise or fall of the market, and not by delivery of the subjects bought or sold, they become gambling transactions, and, under C. C. 1927, there is no right of action for the recovery of money claim- ed thereunder. Where brokers act for a person con- tracting as above to deliver grain at a future date (but without intention to make actual delivery), and the brokers, having full knowledge of the fictitious character of the transaction, disclose no purchaser or principal, they will be considered as principals, as regards the party contracting to deliver, and no action will lie by the brokers for the recovery of a deficiency upon the trans- actions. MacBougall & al. & Demers. M. Judgment confirming, 22 March, 1886. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ., Monk, Eamsay, JJ., dissenting. Eep. M. L. K. II Q. B., 170. 4 Dec. D. A., 380. 9 Leg. News, 202. Held, that there was no evidence to show that the contract was not to de- liver, that the broker through whom an agency bargain is made is not by law deprived of the right to recover ad- vances made to his principal, although he knew the nature of the bargain in which it was to be employed, because gambling is not an illicit contract. It is only a contract' discouraged by the law, and the disability attached to it by the positive terms of the law cannot be extended inferentially. lb. BETTERMENTS.— A sale of better- ments by a person only in possession of real estate, without warranty, gives no action to the purchaser who is evict- ed. Dubois & Oroteau. Q. Judgment reversing, 5 Dec, 1876. Monk, Ram- say, Sanborn, Tessier, JJ. Eep. 8 Eev. Leg., 245. BIDDER. — V. Sale. BILL OF COSTS. — v. Advocate and Attoenet Insolvency. BILL OF EXCHANGE & PROMISSORV NOTES. — " A bill of exchange is a writ- ten order by one person to another for the payment of money absolutely and at all events." 2279 C. C. It is essential to a bill of exchange : — That it be in writing and contain the signature or name of the drawer ^That it be for the payment of a specific sum of money only. — That it be payable at all events and without any condition, 2280 C. C. " The acceptance must be in writing upon the bill or upon one of the parts of the bill." 2292 C. C. ■' A promissory note is a written pro- mise for the payment of money at all events and without any condition. It must contain the signature or name of the maker and be for the payment of a specific sum of money only. It may be in any form of words consistent with the foregoing rules." 2344 C . C. " Bills of exchange and promissory notes " are subject to the legislative authority of the Parliament of Canada. A note given to a Building Society as collateral security is not a negooiable instrument, and if lost does not fall within the terms of article 23 1 6 C. C. as to security. Cooley, & The Dominion Building Society, M. Judgment revers- ing, 1 8 September, 1 878. Sir A. A. Do- rion, C. J., Monk, Eamsay, Tessier, Cross, J J. Eeported 24 J. Ill, 1 Leg. News 495. The contract expressed on the face of a negotiable instrument cannot be varied without an express agreement. Knowledge that the parties to a note occupy between themselves a relation different from that expressed on the face of the note, is not' sufficient to alter their relations to a third party having such knowledge. Giving notes for a previous debt does not operate novation unless the inten- tion be evident. Scoti & La Banque de Quebec, Q. Judgment confirming, 8 October, 1884. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Eep. 7 Leg. News 343. The presumption is that the endor- '75 BILL OP EX. & PROM. NOTES BILL OF EX. & PROM. NOTES IS sers of a promissory note are liable ac- cording to the order of endorsation, but this presumption may be repelled by evidence that such was not the inten- tion of the endorsers. LioeilU & Bai- gle, M. Judgment confirming, 17 Sep., 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Rep. 2 Dec. de la C. d'Ap. 129. Order of names on notes not conclu- sive as to the relative responsibility of the parties. Lieeilli & Daigle, M. Judgment confirming that in Review, 17 Sep. 1880. Dorion, C. J., Monk, Ram- say, Cross, JJ. A note indorsed for the accommoda- tion of the maker is suflBcient to allege that the note passed from the maker to the several successive endorsers for value received, without the declaring upon it as having been endorsed by the several indorsers as sureties of the maker. The several successive indorsers of a promissory note, indorsed for the ac- comodation of the maker, are liable to each other in the order of their res- pective indorsements, the same as if the indorsements had been for value re- ceived, unless there be an agreement to the contrary. Such an agreement which is to des- troy the legal effect of a written ins- trument can only be proved according to the rules of evidence laid down in articles 1234 & 1235 of the Civil Code. Whitfield & McDonald, M. Judgment reversing, 23 September, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, CAss, Baby, J J. Reported 2 Dec. d'A. 157. (1) The Defendant must establish clearly that a note is given for accommoda- tion. Parker & Fuller, M. Judgment, confirming, Sep., 1877. Dorion, C. J., Monk, Ramsay, Tessier JJ. Monk J. dis. The maker of a promissory note, who pretends the note is for accommoda- (1) Note.— This case was reversed in the Privy Council. tion of holder, must show clearly that such holder gave no value for it. Morehouse & Burland. M. Judgment confirming, 25 February, 1875, Dorion, C. J., Monk, Taschereau, Ramsay, San- born JJ. The Defendant, endorser, being sued on a promissary note, pleaded that he had endorsed for credit, and that the plaintiff (a subsequent endorser) had guaranteed the prior endorsers that he would see the note paid. Held, not proved, it appearing among other things, that the defendant had, by a letter to plaintiff, personally guaranteed due payment of the note in question. Willett & Court. M. Judgment con- firming, 20 Jan., 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby JJ. Rep. 6 Leg. News 204. Where a defendant pleads that pro- missory notes were given in exchange for the one sued upon the burthen of proof is on defendant ; he may, however, prove by parol the consideration of the note, and that it formed part of other transactions. Temple & Jones. M. Judg- ment confirming, 20 January, 1 888. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Where an indorser suing a prior in- dorser on a promissory note alleges that the note came into his hands by delivery to him by such prior indorser, and it turns out that the note never was so delivered to him, but that he and such prior indorser were accommo- dation indorsers, the plaintiff will, nevertheless, be entitled to lecover judgment in his favor without amending his declaration. The right so to recover from the prior indorser is not affected by the mere fact that plaintiff and defendant were only accommodation indorsers, in the absence of any proof of an agree- ment between them that they were to be only jointly and equally bound. And the onus prohandi is on the party pleading such agreement. In the present instance no agree- ment was proved that the relations of 11 BILL OF EX. & PROM. NOTES BILL OF EX. & PROM. NOTES 78 the indorser and indorsee were to be other than those mentioned in art. 2314 of the Civil Code. Whitfield & McDon- ald. M. Judgment reversing, 23 Sep., 1881. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Eep. 26 J., 69. Where a promissory note is given for value, it is no answer to an action on the note that the value was not given by plaintiff. Rollin et al., & Boyce. M. 'Judgment confirming, De- cember, 1875, Dorion, C. J., Monk, Ramsay, Tessier, JJ. Where several persons, trustees of an insolvent estate under a deed of composition, which gave them no power to draw or accept bills, signed promis- sory notes with the wonls ''Trustees to estate C. D. Edwards," after their signa- tures, they were personally and joint ly and severally liable, and this parti- cularly when the credit was given to them. Archibald et al, & Brown et al. M. Judgment confirming 22 Dec. 1879, Dorion, C. J. Monk, Bamsay, Tessier, Cross, JJ. Kep. 24 J. 85, 3 Leg. News, 43. The possession of a promissory rote gives rise to the presumption that the holder is owner, unless the possession be otherwise explained. Cruiee et al., & Desnoyers. M. Judgment confirming, December, 1875, Dorion, C. J., Monk, Eamsay, iSanborn, JJ. Where a promissory note is surren- dered to one of the Defendants, the presumption is that it is paid, unless some other reason be established to prove why it was given to the Defend- ant. McKenzie & Frizzell, M. Judg ment confirming, June 1874, Tasche- reau, Eamsay, Sanborn, Loranger, JJ. Presumption from return of the note to the drawer is only a presumption of payment which may be destroyed by contrary evidence. In a commercial matter evidence may lie by witnesses. Grenier & Pothier, Q. Judgment con- firming, December, 1877. Sir A. A. Do- rion, C. J., Monk, Eamsay, Tessier, Cross, JJ., Ramsay, J., dissident on the ground that Plaintiff had failed to prove that the return of the note was not a remission of the debt. Rep. 1 Leg. News 33, 3 Q. L. R. 377. A promissory note which is not in the hands of the Plaintiff must be ac- counted for. Burland & Moorhouse, M. Judgment confirming, 20 February, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Where a party sues on a note as being in his possession without produ- cing it, he cannot recover judgment thereon, even if he proves that the note once existed, without proving that the Plaintiff ever had possession of it. Raymond & Larocque. M. Monk, Ram- say, Sanborn, Maokay, Torrance, JJ. Rep. 20 J. 175. A Municipal Corporation will be con- demned to pay the amount of a pro- missory note signed by the Mayor and Secretary-Treasurer in the name of the Corporation, where it is neither alleged nor proved that the note was given without lawful consideration. The Cor- poration of the Ihwnship of Grantham & Couture et al. M. Judgment oomfirm- ing, 16 Sep., 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 24 J. 105, 2 Leg. News 350, 10 Rev. Leg. 186. In the absence of a special denial, the authority of officers of an incorporated Company to make notes will be presu- med, and also that the note was given for consideration. — Affixing double stamps in Appeal. La Soci4t4 de cons- truction du Canada & La Banque Na- tionale. M. Judjiment confirming, 16 March, 1880, Dorion, C. J., Monk. Ram- say, Cross, Caron, JJ. Rei-. 3 Leg. News, 130. I Dec. de la C. d'Ap. 173. A negotiable promissory note made by a Building Society, or other corpo- rate body, not specially authorized by its charter to make promissory notes, is a promise held out to the public that it will pay the amount to the or- der of the person named therein, and will be held good as an acknowledge- ment of indebtedness ; and the en- "79 BILL or EX. & PROM. NOTES dorsee of such note may recover the amount thereof from the Corporation, promissor, on the mere production of the note, in the absence of proof deny- ing the existence of the debt or that vaUd consideration was received by the Corporation. The authority of the Officers of an incorporated Company to make a pro- missory note, which is signed on behalf of the Company by the President and Secretary, will be presumed in the ab- sence of a special denial that they were duly authorized. A party in good faith will be allowed to affix double stamps to a promissory note even when the case is in appeal. LaSoci4t6de Construction du Canada & La Banque Nationale. M. Judgment confirming, 16 March, 1880, Dorion, C. J., Monk, Eamsay, Cross, Caron, JJ., Rep. 24 J. 226. Where an Insurance Company, with- out any reservation, accepts a promis- sory note of the insured for the amount of the premium, payment whereof is acknowledged by the policy to have been received, the failure of the insur- ed to pay the note at maturity does not affect the validity of the insurance. La Compagnie d' Assurance des Oulti- vateurs conire le Feu, &c., & Orammon. M. Judgment confirming, ] 7 Dec, 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 24 Jurist, 82. 3 Leg. News, 19. A promissory note given by the in- sured may be a valid payment of the premium although the note be unpaid. So where an agent took a premium by note for $6.65 — which he undertook to pay for the insured — apd sent the note to the insurance company who issued a policy on the representations of the agent, without any reference to the in- sured, and the note was not paid by the agent till after the fire, the insu- rance company will be held liable on the policy. The Ottawa Insurance Company & Boutiqug. M. Judgment confirming, 22 Sep., 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 2 Leg. News, 39'j. BILL OP EX. & PROM. NOTES 80 A general power to act as agent does not give authority to sign a promissory note, even though the agent had author- ity by the power to hypothecate the real estate of the principal. St. Jean & The Metropolitan Bank. M. Judg- ment reversing, 16 Sep., 1876. Monk, Ramsay, Sanborn, Tessier, Belanger, JJ. Rep. 21 J. 207. Bona fide Holder The holder of a promissory note for value can recover on the note against the endorser, although the agent to whom he trans- mitted the note delivered it against his instructions, without the accom- plishment of a condition which the en- dorser had stipulated with the drawer, but to which the plaintiff was not privy. Sylvain & Flanagan. Q. Judgment confirming, 8 March, 1875. Dorion, C.J., Monk, Taschereau, Ramsay, Sanborn,JJ. A note made fraudulently by a part- ner in the partnership name, binds the partnership in the hands of a honafidi holder for value. Walter & The Mol- sons Bank. M. Judgment confirming, 18 Sep., 1877. Dorion, C. J., Monk, Ramsay, Tessier, J J. Where a note is indorsed for the accommodation of the maker it is suffi- cient to allege that the note passed from the maker to the several successive indorsers for value received, without declaring upon it as having been en- dorsed by the several indorsers as sure- ties of the maker. The several successive indorsers of a promissory note, endorsed for the ac- commodation of the maker are hable to each other in the order of their res- pective indorsements, the same as if the indorsement had been for value receiv- ed, unless there be an agreement to the contrary. Such an agreement which is to des- troy the legal effect of a written instru- ment can only be proved according to the rules of evidence laid down in articles 1234 and 1235 of the Civil Code. The Merchants' Bank of Canada & Whitfield & Whitfield & McDonald. M. Judgment reversing, 23 Sep., 1881. 81 BILL OF EX. & PKOM. NOTES ■Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Eep. 2 Dec. d'A., 157. 26 Jurist, 69. A note payable on demand given to a bank to secure an overdrawn account of the maker, as well as to secure the forbearance of the bank for other ad- vances, must be considered in the light of a continuing guarantee, and that the endorsers of such a note are not reliev- ed from their liability by the fact that the bank did not make a demand of payment till after the insolvency of the maker, about twenty-seven months after the date of the note. Tke Mer- chants' Bank & Whitfield. M. Judg- ment reversing. 23 Sep., 1881 . Sir A. A. Dorion. C. J., Monk, Ramsay, Cross, Baby, JJ. Eep. 2 Dec. d'A., 157. The endorser of a composition note given by a debtor to his creditor in car- rying out a settlement (not under the Insolvent Act) for fifty cents in the dollar, was not liable for the amount of such note, where it appeared that the debtor, for whom he endorsed the note as surety, and from whom he had taken a transfer of his estate as collateral security, had secretly given the plain- tiff (the creditor) his own notes for the balance of his claim, in order to obtain his assent to the composition, and the creditor had already received fifty cts on his claim. Arpin & Poulin. M. Judgment confirming. 14 June, 1878. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, JJ. Rep. 22 J. 331. 1 Leg. News, 290. But the endorsers of composition notes for an insolvent remain liable thereon, though the discharge of the insolvent may have been annulled by the Court, and though the insolvent may have given other notes by way of preference to some of his creditors. Marchand & al. & Wilkes. M. Judg- ment confirming, 17 Sep., 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, JJ., Ramsay, J., dis., thought this case involved the same principle as the case of Arpin & Poulin. The position of the endorsei's was changed by the composition not being carried out, and Wilkes knew of the fraud. 3 Leg. News 318. BILL OP EX. & PROM. NOTES 82 The endorser of composition notes is not discharged from liabihty thereon by the mere fact that the compounding creditors have secretly stipulated with the debtor that he shall pay them an amount in excess of the composition rate, as the condition of their consent to the composition and especially where the endorser, as the consideration of his endorsement, obtained a transfer of the insolvent's entire stock-in-trade and assets which he still retained when sued on the composition notes. But the endorser is entitled to a deduction of all sums that the creditor has re- ceived in excess of the composition notes. Martin & Poulin. M. Judg- ment reforming, 24 Nov., 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ., Cross, J., dis. Ramsay, J., did not concur in some of the reasons given for the judgment; but concurred in the judgment because Poulin was in a peculiar position, and if he were dis- charged he would be really keeping what he had gained by the transaction and avoid his liability. Rep. 4 Leg. News 20 1 Dec. d'A. 75. Notes given in excess of the settle- ment agreed upon with the other cre- ditors of an insolvent cannot be recov- ered on, even if it appear that they were given to a consignor as the price of goods in the hands of the insolvent for sale. Wilkes & Skinner, M Judgment confirming 6 March, 1 882. Monk, Ram- say, Cross Baby, JJ. The drawer of a promissory note can- not set up, against the holder, the debt due to the endorser by the holder. In the particular case, no special un- derstanding to alter the legal presump- tions arising on the note is proved. If a special understanding is to be pro- ved all the parties should be present. Donovan & al. & Darling. Q. Judgment confirming, 5 Oct., 1883. Sir A. A. Do- rion; C.J. Ramsay, Tessier, Cross, Baby, JJ. A promissory note given without va- lue and for a consideration erroneously believed to be good in law is not valid. Biel & McEwen M. Judgment rever- 83 BILL OP EX. & PROM. NOTES BILL OP EX. & PROM. NOTES 84 sing, 29th September, 1881. Sir A. A. Dorion, C. J., Monk, Kamsay, Cross, Baby, JJ. Where a note is obtained by fraud and misrepresentation, and the holder does not show how it came into his posses- sion or that he gave value for it, he will be presumed to have been aware of its fraudulent origin. Rohinson & Calcotl, M. Judgment reversing, September, 1875. Dorion., C. J., Monk, Taschereau, Eamsay, Sanborn, J J. «. " La Themis," vol. 2, p. 331. Wliere the transfer of a note by en- dorsement is made before it becomes due, but the evidence shows that the note was obtained from the maker by fraud and that the holder was aware of the fraud, the case does not come with- in the general rule laid down in C. C. 2287, and the onus of showing that he is in good faith falls upon the holder. Bilanger & Baxter. Q. Judgment re- versing, 7th December. 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Rep. 6 Legal News, 413. When a note is taken after it is due the party obliged by it may set off any matter such party could legally set off against the previous holder of the note, (2287 C.C.) The Quebec and Gulf Ports Steamship Company & The Amazon Insurance Co. Q. Judgment confirming, Sth Sep., 1877. Dorion, C. J., Monk, Ramsay, Bosse, JJ. A note transferred for valuable secu- rity and not endorsed, implies a war- ranty that the maker is not insolvent to the knowledge of the transferrer. Lewis & al. &, Jeffery & al. M. Judg- ment reversing, June, 1875, Dorion, C. J., Monk, Taschereau, Ramsay, San- born, JJ. A promissory note given by the Vice President of a company, for the private debt of the officer signing for the com- pany, and with the knowledge of the Bank, holder of the note, that the note was given for such debt, cannot be re- covered on by the bank, in an action against the company. The Mechanic's Bank & Bramley & al. M. Judgment reversing, Sep., 20th, 1879. Dorion, C, J., Monk, Ramsay, Tessier, Cross, JJ. Eamsay, I was present at hearing but took no part in the d4lih£re and judg- ment. Rep. 2 Leg. News 389. In an action against an accommoda- tion endorser, where the note sued on, showed on its face a manifest alteration ' of date, and the endorser pleaded such alteration, that the plaintiff (who had discounted the note for the maker) was bound to show that the alteration was made before the endorsation, or that it was made with the endorser's consent. La Banque Ville-Marie & Primeau. M. Judgment confirming, 19 Nov., 1880. Rep. 26 J. 20,1 Dec. C.d'Ap. 244. 4 Leg. News 19. The defendant, sued on a promissory , note, pleaded, in the first place, that the signature was a forgery, but subse- quently amended his plea, and alleged that he signed the note by error, in- tending to give a receipt for the amount stated therein. Meld, that in the case of an illiterate person who signed by making his mark, this change of de- fence was not an indication of bad faith, and the evidence appearing to the Court to sustain the amended plea, the judgment dismissing the action was confirmed. Benoit & Brais. Judgment confirming. 19th Sep., 1883. Rep. 6, Leg. News, 342. Sir A. A. Dorion, C. J. Monk, Ramsay, Cross, Baby, JJ. The Defendant, endorser of a promis- sory note, pleaded that the notice of protest had been mailed too late. The evidence in support of the plea was that of the officers of the post-office, the letter showed by the stamping that it was posted a day too late. On the other hand the notary swore positively to the posting by his own hand. The Court was of opinion that the positive testimony of the notary was a stronger evidence than that of officers who swore to a practice. Doutre & La Ban- que Jacques-Cartier. M. Judgment con- firming, 29th Jan., 1873. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Evidence of signature by endorser. Law of England. Competency of witness, 85 BILL OP EX. & PROM. NOTES McLeod & The Eastern Townships Bank. M. Judgment confirming , 21 June, 1879. The signature to a writing, which is denied, cannot be proved solely by comparison of the disputed signature with other signatures which are ad- mitted or proved to be genuine. Qucere, as to the effect of illegal evidence taken without objection. Paige & Ponton, M. Judgment confirm- ing, 19 March, 1877, Monk, Ramsay, Sanborn, Tessier, JJ. Eep. 26 J. 155. Forgery. Division de I'aveu. Morin & Grenier, M. Judgment reversing, 15 June 1877, Dorion, C. J., Monk, Ram- say, Sanborn, Tessier, JJ. Question of evidence. Semple & Jones. M. Judgment confirming, 20 Jan. 1883, Sir A. A. Dorion, C. J., Ram- say, Tessier, Cross, Baby, JJ. The short prescription referred to in articles 2250, 2260, 2261 and 2262 C. C. may be renounced and interrupted, in the manner prescribed by article 2227, C. C. Walker & Sweet. M. Judgment reversing, 21 December, ] 876, Sir A. A. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 21 J. 29. The prescription of a promissory note does not commence to run until after the expiration of the last day of grace. St-Marie & Stone. M. Judgment con- firming, 27 September, 1882, Sir A. A. Dorion. C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 5 Leg. News 322, 2 Dec. d'A. 369. L'appelant ayant ete condamne par jugement de la Cour Superieure, a payer a un nomme Francis McCaffrey le montant d'un billet fait a I'ordre de I'Intime et endosse par ce dernier en faveur de 1' Appelant : Jugd, par la Cour d'Appel, infirmant le jugement de la Cour Superieure : lo. Que la demande en justice et le jugement par McCaffrey, centre I'Ap- pelant, ont interrompu la prescription, BILL OP EX. & PROM. NOTES 86 tant a I'egard de I'intime qu'a I'egard de 1' Appelant. 2o. Que pour recouvrer de l'Intim6 les frais payes a son procureur par I'Appelant dans Taction intentee con- tre lui par McCaffrey, I'Appelant aurait du appeler I'intime en garantie. Hart & Beauohemin, Q. Judgment reversing, 3 June, 1881, Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 1 Dec. d'A. 307. A note was made payable at Plain- tifl's house, but subsequently Plaintiff gave the note to his Attorney, and it was not in his hands to return it to Defendant, who, on suit, without any demand, paid the money into Court with his plea. Seld, not liable for the costs ot the action. Lessard & Genest, Q. Judgment confirming, 8 Oct. 1883, Sir A. A. Dorion, C. J. Ramsay, Tessier, Baby, JJ. The request of a party who afterwards refuses to accept, may be recovered by the party who cashed it from the party who promised to accept. The right of action in such case is not taken away by articles 2292, 2293 C. C. That the letter promising to accept is addressed to the Defendants corres- pondent, but evidently given to be used to obtain funds from a banker, and which was so used, does not affect the banker's right to bring a direct action. Dunspaugh et al. & Molsons Bank, M. Judgment c'onfirming, 22 June, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 23 J, 57, 9 Rev. Leg. 624 Lorsque la signature portee au has d'un billet n'est pas sufBsamment prou- vee etre celle du pretendu signataire, apres negation sous serment de la part de celui-ci. Taction en reclamation du paiement dit billet sera renvoyee. Bou- langer & Walters. Q. Judgment revers- ing, 6 May, 1886, Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Ram- say, Cross, JJ., dissenting. Rep. 14 Rev. Leg. 359. 8t BILL OF LADING BORNAGE When a note bears on its face that it was given for value, the promissor is bound to prove that it was not so given. (2285 C. C.) And it is not proof that it was given without consideration, that the parties had many note transac- tions, and that Plaintiff cannot from memory, say of what transactions this was the result, or whether it was a re- newal, and the ordinary presumptions of law are in no way altered by the fact that the maker and the holder had monetary transactions together con- nected with a general election of mem- bers to serve in Parliament. Mc Greeoy & Senecal. M. Judgment confirming, 30 June, 1386, Sir A. A. Dorion. C. J., Kamsay, Tessier, Cross, Baby, JJ., Tes- sier, Cross, JJ., dis. Where a promissory note is given for a Patent right for a new and useful in- vention, and the Patent is not for a new and useful invention, the vendor of the alleged note cannot recover. Almour & Cable. M. Judgment revers- ing, 27 March. 1886, Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Lorsqu'un billet promissoire a ete obtenu du prometteur, par dol, fraude et sans cause valable, le tiers-porteur de oe billet, ne pourra en recouvrer la valeur sans prouver qu'il a regu ce bil let avant I'echeance, de bonne foi et pour bonne et valable consideration, ignorant les circonstances sous lesquel- les il a ete donne. Dumas & Baxter, Q. Judgment reversing, 6 February, 1 885, Sir A. A. Dorion, C. J., Ramsay, Tessier. Cross, JJ., Rep. 14 Rev. Leg. 496. Where a promissory note is given for value on the face of it, the Defendant must prove that it was not given for value. ■ And it wUl not be a presump- tion that it was not given tor value that the parties had another note transac- tion for election purposes, which is not shown to be connected with the note sued upon. McGreevy & Senecal, M. Judgment confirming, 30 June, 1886, Monk, Ramsay, Tessier, Cross, Baby, J J . BILL OF LADING. — v. Affreightment. — Banking Way-Bill. BON. — V. Absentee. BONDS. — A bond given by a public oflBcer for the due ftilfilment of his duties with sureties, will bind him and his sureties towards any one suffering by his misfeasance in office, although it be not taken and acknowledged in the manner and according to the formali- ties of the 92 Cap. C. S.L. C, Sect. 3. Blais & Gleason, Q. Judgment con- firming, 6 Sept., 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Monk, J., dis. Eep. 6 Q. L. R., 202. Upon the facts of the cose the Court was of opinion that the Defendant (Appellant) was bound to return certain railway bonds which had been placed in his hands by the Plaintiff's assignor. The condemnation against the De- fendant, in default of returning the bonds, should be to pay the actual value thereof, as established in evid- ence, and not the par or nominal value. Senecal & Hatton. M. Judgment con- firming, 9 December 1884. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Rep. M. L. R. I. Q. B. 112, 7 Leg. News 414. v. Railway oases. BORNAGE — "Every proprietor may oblige his neighbour to settle the boundaries between their contiguous lands — The costs of so doing are com- mon ; those'of the suit, in case of con- testation, are in the discretion of the Court." 504 C. C. Whenever two con- tiguous lands have never been bounded, or the boundaries have disappeared, or the fences or boundary works have been wrongly placed, and one of the neighbours refuses to agree upon a surveyor to determine the boundaries or to verify or to rectify the division line, as the case may be, the other party may bring an action against him to compel him to do so.'' 941 C. C. P. Where there never has been a bound- ary line between neighbours, and the question is simply as to empietation the proper remedy is by an action en bor- nage, and a petitory action will be dis- missed. Fraser & Gagnon. Judginent 89 BORNAGE BORNAGE 90 confirming 15 Dec, 1878. Sir A. A. Dorion, C. J., Monk, Kamsay, Tessier, Cross, J J. Kep. 4 Q. L. E. 381. But where an action should be era homage and the Plaintiff concludes au p£titoire, and the Defendant does not object but pleads over, and substantial justice is done by the judgment the Court of Appeal will not disturb it. Atkinson & al, & Hall & al., Q. Judg- ment 7 September, 1874. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Eep. 19 J. 192. A line indicated by blazed trees, will not be sufBcient reason for laying down the boundary line between the parties otherwise than in accordance with the title deeds of the parties. Orenier & al, & Giroux, Q. Judgment confirming 6 Sep., 1877. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, JJ. Mr. Justice Sanborn heard the case in June but died before the Judgment was render- ed. The Defendant who resisted the homage wiU be condemned to the costs of the action. Ih. A memorandum in the terms follow- ing, will not be considered as a Deed of Exchange or as affecting the original title of the property : " Whereas, it is difficult huilding a division line fence between RUey Wyman and Charles Gr. Libby, both of Barnston, in the county of Stanstead, in the Province of Canada, Farmers : We, the undersigned, Riley Wyman and Charles Gr. Libby, have agreed that the line between them on Lot No. 2, in the 3rd Range of Barnston aforesaid, shall commence on the West side of the river, at the division line between Hugh Odbert and the said Chas. Gr. Libby, about 12^ rods from the river at low water mark, running a little East of N. East to a poplar tree on the brink of the river, thirteen rods ; thence across the river to the East side, thence down the river far enough from the river to build a fence to be safe, to a small spruce tree, spotted, and with a pile of stones ; thence North- West 15 rods toaspptted birch, thence about North W. 13 rods, to a spruce tree on the bank of the upper end of the mill-pond ; thence on said bank to the North end of said lot : the said Une to be established as a division line of said lot between the parties.'' That therefore either party is en- titled to demand homage, and in case of its being refused by the other party the costs of the suit, if successful, will be borne by the party refusing to be bound. Libby & Wyman, M. Judgment confirming March, J 875. Dorion, C. J., Monk, Taschereau, Ramsay, Belanger, JJ. Taschereau, J., dis. Possession by works in existence for more than ten years. Lafiamme & Lecompte, Q. Judgment reversing 8 February, 1884. Monk, Ramsay, Tessier, Cross, Baby, JJ. Where the Defendant in an action of bornaye contest the action unsucces- fully he will be condemned to pay the costs ; and the costs of homage will be borne equally by the parties The Court by its Interlocutory judg- ment ordering a rapport d'arpentage is not obliged to name three arpenteurs. Bouffard & Nadeau, Q. Judgment confirming 5 June, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 8 Rev. Leg. 321. By the Interlocutory judgment of the Court, the arpenteur should be directed to report to the Court the State of the properties, and then it is the duty of the Court to decide where the boundary posts are to be placed, and the arpenteur is then ordered to place them according to the require- ments of the judgment. And where, without consent of parties, a judg- ment orders the arpenteur to decide as to the lines of division and to place posts, and he does so, the pro- ceedings will be set aside as irregular, although the Court may have, by its final judgment, homologated the pro- ceedings. Brown & Perkins, 4 June, 1880. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 6 Q. L. R. 143, 10 Rev. Leg. 427. In an action en homage the Superior 91 BRITISH N. A. ACT BRITISH N. A. ACT 92 Court ordered : '• Que par un ou plu- sieurs arpenteurs nommes par les par- ties, il fut precede au homage des pro- priet&s designees dans la declaration, conformement a la loi et aux titres et possession des parties, le dit arpenteur devant faire un plan figuratif des lieux, etablir les lignes de division entre les proprietes respectives et y poser des homes pour marquer et delimiter d'une maniere legale et definitive les dites lignes de division entre les dites pro- prietes, dresser procesverbal du dit homage et faire rapport a cette Cour de ses operations." In execution of this order two lines were drawn about twelve feet distant from each other. The Court below rejected the first report and adopted the second. But the Court of Queen's Bench held, that the order was irregular, inasmuch as it directed the surveyor to place homes, without having decided by its judgment what was the line of division in which the homes should be placed. That there was nothing in the record to establish where the line should be. And that therefore the Court should order a new homage. It was held that the costs of an uncontested action en homage should be at the joint charge of the parties. Loiselle & Paradis, M. Judgment reversing 26 February, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Reported 1 Dec. d'A. 264. Pour maintenir une action en bor- nage, il faut que le Demandeur prouve son droit de propriete ou au moins sa possession civile. Mann & Hogan, Q. Judgment confirming 7 Dec, 1881. Monk, Ramsay, Tessier, Cross, Baby, J J. Rep. 8 Q. L. R. ], 11 Rev. Leg 334. BRITISH NORTH AMERICA ACT 1867. — This is the Imperial Statute 30 Victoria, cap. 3, styled, "An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the government thereof, and for purposes connected therewith." Sanctioned 29th March, 1867. In 1871, this act was amended by " An Act respecting the establishment of Provinces in the Dominion of Canada." 34 and 35 Victoria, cap. 28. Sanctioned 29th June, 1871. In 1875, the act of 1867 was further amended, by " An Act to remove certain doubts with respect to the powers of the Parliament of Canada, under section eighteen of the British North America Act, 1867." 38 and 39 Victoria, cap. 38. Section 41 of the B. N. A. Act, 1867, which provides for the " continuance of existing election laws until Par-, liament of Canada otherwise provides," and sect. 8 by which provides for the " continuance of existing election laws," are transitory clauses and only have force in the measure of their applicability. So a custom-house oflBcer is not precluded from voting at a local election. Hamilton & Beauchesne, Q. Judgment confirming 8 March, 1875. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. The powers of a local government under the B. N. A. Act, are co extensive as regards the subject, with those of the local legislature, so a Provincial Government has power to incorporate by letters patent a company for the purposes of navigation within the limits of the Province. Macdougall & al, & The Union Navigation Gompany. M. 16 March, 1877, Monk, Ramsay, San- born, Tessier, JJ. Rep. 21 J. 63. The Dominion Parliament had a legal right to impose on the Superior Court, and the judges thereof the duty of trying controverted elections of members elected to the House of Commons of Canada. Bruneau & al,vs. Massue, M, Judgment rejecting Appeal 18 December, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 23 J. 60, 2 Leg. News 38, 9 Rev. Leg. 626. An act of the Province of Quebec passed in 1872 (36 Vic, c 12, sect. 3) limited the right of Appeal in certain cases that had gone to the Court of Review, and it was held that this con- trolled the right of appeal in cases of insolvency, and that it was not beyond 93 BRITISH N. A. ACT BRITISH N. A. ACT 94 the powers of the local legislature to regulate by general rules the appeals to its Courts, provided such rules did not contravene a positive law regulat- ing insolvency. Siuday & Angers, M. Judgment, 1874. The act of Legislature of Quebec, 32 Vict., cap. 15, sect. 190, authorizing the Lieutenant Governor in Council to declare forfeit (for default to make repairs) the right of collecting tolls on any toll-bridge and to transfer the property therein ; was within the powers of the local legislature, and that the Orders in Council mentioned in this case forfeiting the right of exacting tolls for passing on a toll-bridge, which had been placed under the manage- ment of the Municipal Councils of Cleveland & Melbourne (Appellants) by Order of the Executive Council of the former Province of Canada, and transferring'the control of the property to the Appellants, were Xi0\,ultra vires. The Municipality of the Township of Cleveland & al, & The Municipality of the Township of Melbourne & Bramp- ton Gore-M.-Ifj Feb., 1881. Sir A. A. Dorion, C. J., Monk, Bamsay, Cross, Baby, JJ. Rep. 26 J. 1, 4 Leg. News 277, 1 Dec. d'A. 353. La clause du Statut Provincial, 42-43 Vict., ch. 4, ordonnant la fermeture le dimanche de la maison dans laquelle il se vend des liqueurs spiritueuses, est une mesure disciplinaire et de police, et n'est pas ultra-vires de la Legislature Provinciale. Poulin & La Corporation de QuSbec, Q. Judgment confirming, 7 Dec. 1881, Sir A. A. Dorion, C. J.,Ram- sav, Tessier, Cross, Baby JJ., Rep. 7 Q. L.'R. 337.' 2 Dec. d'A. J 03. Ramsay, J., thought the prohibition was improv- diently issued independently of the special question of legislative authority. Although the form of proceeding adopted in this case, viz., a rule for contempt against the Prothonotary, is an irregular mode of testing the cons- titutionahty of a statute, and the right of appeal de piano from the order made by the Court below in such case might be questioned, yet where all parties have acquiesced in the form. and have expressed a desire for a deci- sion on the merits, the Court, in its discretion and where the question is of is of public interest, may overlook the technical difficulty and deal with the case on its merits. The tax imposed by the Act of the Legislature of the Province of Quebec, 43-44 Vict. cap. 9, sec. 9, to wit,a duty of 10 cents on each exhibit filed before the Superior Court, etc., such duty payable in stamps, is in consideration of a ser- vice to be rendered by an officer of the Government of the Province of Quebec, and for a merely local object in the Province (viz., for the maintenance of the administration of justice in the Province) : and, moreover the tax in question is of a nature similar to those collected prior to Confederation for the purpo-e of maintaining the administra- tion of justice, which have always been treated as local assets, and consequent- ly the Act in question was not ultra vires. Quaere, as to direct and indirect taxation. The Attorney General & Reed. M. Judgment reversing, 24 Nov. 1882, Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ., Rep. 26 J. 331, 5 Leg. News 497, 3 Deo. d'A. 33. The Chief Justice dissenting. This case was reversed in the Privy Council. A local Statute empowering a muni- cicipality to make by-laws prohibiting the sale of liquor, or allowing its sale under certain conditions, is not justified by sub-section 9, Section 92, B. N. A. Act of 1867, even though the munici- pality only exercises the power to the extent of fixing a tax by way of licence, and for the purpose of revenue. The ptate of things existing in the confederated Provinces at the time of Confederation, and more particularly that which was recognized by law in all or most of the Provinces, is a useful guide in the interpretation of the meaning attached by the Imperial Par- liament to indefinite expressions em- ployed in the B. N. A. Act of 1867. At the time of Confederation, the 95 BRITISH N. A. ACT BRITISH N. A. ACT 96 right to prohibit the sale of intoxica- ting drinks, existed as a municipal ins- titution, in the then Province of Cana- da, and in Nova Scotia, and conse quently that it is to be deemed a "mu- nicipal institution " within the mean- ing of sub-section 8, Section 92, B. N. A. Act of 1867. The power of the Dominion Parlia- ment to pass a general prohibitory liquor law as incident to its rights to legislate as to public wrongs, is not in- compatible with a right in the Provin- cial Legislatures to pass prohiJbitory li- quor laws as incidental to municipal ins- titutions. The Corporation of Three Ri- vers & Suite. Q. Judgment reversing, 7 Oct. 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Rep. 5 Leg. News, 330. This judgment was con- firmed in the Supreme Court. Rep. 1 1 S. C. R. 25. A Statute of the Legislature of the Provihce of Quebec (39 Vic. c. 7) enacted (Sect. J ) that " every assurer, carrying on in this Province, any busi- ness of assurance, other than that of marine assurance exclusively, shall be bound to take out a license, before the first day of May, in each year, from the revenue officer of the district wherein is situate his principal place of business or head agency, and to remain conti- nually under license." " The price of such license " was to consist of three per cent on every fire policy, and one per cent on every other pohcy, except marine policies. This price was to be collected by adhesive stamps in the manner regulated by the Act. Held by the whole Court that this was not a direct tax within the mean- ing of the British North America Act. Held also, that the Statute was ultra vires of the Local Legislature, and null. Angers, Attorney- General & The Queen Insusance Company. Judgment con- firming. M. 14 Dec. 1877. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Taschereau, JJ., Ramsay, J. was of opinion that the Statute was within the powers of the Local Legislature — that a licence is a permit to do, — that the price of a licence or the form in which such price was imposed did not alter its character of licence, — that there was nothing in the enumeration of the Statute to limit the kind of licence that might be imposed by a Local Le- gislature, — that the real test of power was the object of the tax, i. e., to raise revenue for local purposes,— that the Local Legislatures for such purposes could tax subject within the scope of Dominion Legislation, — and that the inconvenience of such an impost as limiting the operations of trade is not a consideration for our Courts, but for the Dominion Government. Rep. 1 Legal News, 3, 22 J. 307. The judgment was confirmed in the Privy Council where it was said : "Now, the first point which strikes their Lord- ships, and will strike every one, as re- gards this Licensing Act, is that it is a complete novelty. No such Licensing Act has ever been seen before. It pui'- ports to be a Licensing Act, but the licensee is not compelled to pay any- thing for the license, and, what is more singular, is not compelled to take out the license, because there is no penalty at all upon the licensee for not taking it up ; and, further than that, if the policies are issued with the stamp, they appear to be valid, although no license had been taken out at all. The result, therefore, is, that a license is granted which there are no means of compelling the licensee to take, and which he pays nothing for if he does take ; which is certainly a singular thing to be stated of a licence. They say on the face of the Statute. " The price of each " license shall consist," and so on. But it is not a price to be paid by the li- censee. It is a price to be paid by any- body who wants a policy, because, without that, no pohcy can be obtained. It may be that the company buys the adhesive stamps, and aflBsees them ; or it may be that the assured buys the adhesive stamps, and affisees them, or pays an officer of the Company the money necessary to perchase them and affix them ; but whoever does it complies with the Act. 9*7 BRITISH N. A. ACT BUILDER 98 Another observation which may be made upon the Act is this : that if you leave out the clauses about the license, the effect of the Act remains the same. It is really nothing more nor less than a Stamp Act if you leave out those clauses. If you leave out every direction for taking out a license, and every thing said about the price of a license, and merely leave the rest of the Act in, the Government of the Province of Quebec obtains exactly the same amount by virtue of the Statute as it does with the licence clauses remaining in the statute. The penalty is on the issuing of the policy, receiptor renewal ; it is not a penalty for not taking out the licence. The result therefore is this, that it is not in substance a licence Act at all. It is nothing more nor less than a simple Stamp Act on pohcies, with provisions referring to a licence, be- cause, it must be pre,sumed, the fra- mers of the Statute though it was ne- cessary, in order to cover the kind of tax in question with legal sanction, that it should be made in the shape of the price paid for a license.*** This is not a payment depending in that sense on the amount of trade pre- viously done by the trader. It is a pay- ment on the very transaction occurring in the year for which the license is taken out, and is not really a^ price paid for a licence, but, as has been said before, a mere stamp on the policy, re- newal or receipt.'' Rep. 22 J. 312. Note. — ^This argument seems to go too far, for if it be not a licence, but a stamp act, it is a direct tax on the com- pany's business, or it is a direct tax on the insured. A local act which disposes of the property of a Corporation created by a federal law is constitutional. Dohie & The Board of Temporalities. M. Judg- ment confirming, 19 June 1880, Sir A. A. Dorion, C. J., Monk, Eamsay, Tes- sier, McCord, J J., Ramsay, J., dissent- ing. Reported 3 Leg. News, 250. Note ^This case went to the Privy Council, and was reversed. The Act of Parliament 42 and 43, Vict., c. 48 is invalid, not being within the powers of parliament, " it is not in the nature of an insolvency law, for it is intended to apply to all building so- cieties, whether solvent or not. It is therefore essentially an act affecting civil rights, ,which under the provisions of the British North America Act, 1867, comes within the exclusive jurisdiction of the Local or Provincial Legislature. McGlannaghan & St- Ann's Mutual Building Society. M. Judgment con- firming, but not on the principle laid down by the Court below, 4 February, 1880. Sir A. A. Dorion, C, J., Monk, Ramsay, Cross, JJ. Ramsay, J. con- curred on the principle of the judg- ment except as to cost. c. Costs. Rep. 8 Leg. News 61, 24 J., 162. BUILD E R His privilege for payment of work and materials, and for addi- tional value given to an immoveable by his works. 1695, 2013 C. C. His responsibility. 1668 C. C. To secure the builders privilege accorded by article 2013 C. C. the builder must take the steps required by law, and it is not sufiicient that he should do something of a similar kind. So an expertise made subsequent to the work is not that contemplated by the article of the Civil Code. And the privilege only dates from the registra- tion of the Statement. Robert et al., & Rieutord, M. Judgment reversing, 26 May, 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. The liability of a builder of a portion of a structure for his bad-work does not extend to the superstructure built by another. St-Louis & Shaw. M. Judg- ment 24 Nov. 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ., 2 Dec. d'A. 374. Note This case went to the Sup- reme Court, and was there confirmed 8 Sup. C. Rep. 385. A builder may, by his contract, hmit his liability in respect to the plan of the work to be erected by him. 99 BUILDING SOCIETY BUILDING SOCIifrY 100 The builder of a portion of a struc- ture, who departs from the specifica- tions of the portion of the work he is to execute, if he acts under the special instructions of the person in charge of the works, and whose orders he is charged to follow, is not liable for the solidity of the structure, if the evidence establishes that the building fell not from any defect in the workmanship, but owing to essential defects in the plan. St. Patrick's Hall & Gilbert. M. Judgment confirming, 29 January, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Bep. 23 J., 1. 1 Leg. News, 116. 9 Eev. Leg., 613. UiLDING SOCIETY.— Building Socie- ties are formed under chapter 69, C. 8. L. C. In 1875, the Legislature of the Pro- vince of Quebec passed " an Act to amend chapter 69 of the Consolidated Statutes for Lower Canada, respecting building societies, in providing for the means of their union or fusion. 39 Vic. C. 61, Q. In 1879, the Legislature of Quebec passed " an Act establishing further provisions relative to building societies in the Province of Quebec, and providing for the Uquidation of their affau-s." 42 & 43 Vic, c. 32. And also " an Act to ratify the proceedings on liqui- dation of certain building societies." 42 & 43 Vic, c 33. In 1877, the ParUament of Canada passed " an Act to make further provi- sion respecting the constituting and management of building Societies in the Province of Quebec." 40 Vic, c. 50. In 1879, Parliament passed " an Act to provide for the hquidation of the affairs of building societies in the Province of Quebec" 42 Vic, c. 48. In 1882, Par- liament passed " an Act respecting in- solvent banks, insurance companies, building societies and trading corpora- tions, 45 Vic, c. 23. The Act of Parliament 42 & 43 Vic, c 48 is invalid, not being within the powers of Parliament. " It is not in the nature of an insolvency law, for it is in- tended to apply to all building societies, whether solvent er not. It is, therefore, essentially an Act affecting civil rights, which, under the provisions of the British North America Act, 1867, comes within the exclusive jurisdiction of the local or provincial legislatures. McClan- naghan & St. Ann's Mutual Building Society. M. Judgment confirming, but not on the principle laid down by the Court below, 4 Febiuary, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, JJ. Ramsay concurred on the principle of the judgment except as to costs ». Costs. Rep. 3 Leg. News 61, 24 J. 162. And so a building society or any other corporation, will be bound by a contract made in good faith by which they ac- quire property, although the contract be not on,e contemplated by their in- corporation provided it be not in violar tion of any law of public order. La Compagnie des villas du Cap Gibraltar & Hughes. M. Judgment confirming, 24 March, 1883. Monk, Ramsay, Tessier, Cross, Baby, JJ. Cross, J., dissenting. 3 Dec, d'A. 175. Confirmed in Supreme Court. And so a building society may bind itself for a loan by a promissory note, given vnthout fraud for its profit, provided there be no special clause in its Act of incorporation prohi- biting it from so contracting. Canada Building Society & The National Bank. M. Judgment confirming, 16 March, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Caron, JJ. Rep. 24 J. 226. 3 Leg. News, 130. And a building society is liable on notes given to a bank for a loan to be lent to its subscribers. The Canada Mutual Building Society & The Bank Ville- Marie. M. Judgment confirming, 9 Nov., 1880. Sir A. A. Dorion, C. J, Monk, Ramsay, Cross, Baby, JJ. Rep. 1 Dec, d'A. 73 And so the society Appellants, con- stituted under chapter 69 of the Con- solidated Statutes for Lower Canada, had the right sanctioned by its own by- laws, to acquire the real estate under the Deed of sale of the 7th October, 1874, in this case mentioned, and to consent to an " Acte de Devis ei Marchff' of same 101 BUILDING SOCIETY BUILDING SOCIETY 102 date, by wMoh tlie company agreed to build houses to be distributed among its shareholders. Semble. This deed was calculated to carry out one of the objects of building societies. La Cie. des Villas du Cap Oihraltar & Hughes. M. Judgment confirming, 2 March, 1883. Monk, Eam- say, Tessier, Cross, Baby, JJ., Cross, J., diss. Eep. 3 Dec, d'A. 175. A building society may in good faith acquire real estate for certain purposes. And therefore a deed by which they acquire lands for the purpose of leasing it to the vendors and to receive back the price is vaUd, and the cessionnaire of such lease, who has been accepted by the building society, will not be allow- ed to refuse payment of the instalments agreed to be paid under the deed of lease, on the pretext that the trans- action was ultra vires of the society. Lareau & La Soci4U Permanente de Construction Jacques Cariier, M. Judg- ment confirming 20 September, 1881. Sir A. A. Dorion, C. J., Monk, Kamsay, Cross, Baby, JJ. Reported 4 Leg. News 363. A building society has a discretion to refuse to confirm the estimation of its valuator as to the sufficiency of the security on which a loan is to be granted. But this discretion must be exercised in a reasonable manner, and it is not reasonable to refuse to lend because the association does not wish to extend its risks in the part of the town where the property is situated, in- asmuch as the rules distinctly state that all property in Montreal is avail- able as security. Such an exercise of discretion would be limiting the rights of the subscribers. The Canada Mutual Building Co., & O'Brien. Judgment confirming 3 Feb'y, 1880. Sir A. A. Dorion, C. J., Monk, Kamsay, Tessier, Cross, JJ. Tessier, J., dis. Rep. 3 Leg. News, p. 58. A building society being in financial difficulties agreed with its creditor not to diminish its real estate without his consent. This agreement was ratified at a meeting at which Appellant was present. Appellant subsequently sued the Society for his versements, and obtained judgment. In execution of his judgment he seized the real estate of the Society. The creditor put in an opposition afin d'annuller based on the agreement. Held, that this opposition should be maintained. Champoux & Lapierre, M. Judgment confirming 22 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. The Chief Justice and Ramsay, J., dis., 3 Leg. News 302. To facilitate the liquidation of a mu- tual building society, a resolution was passed at a meeting of the borrowing members, to discharge those who with- in three months should pay 80 per cent of their indebtedness, the surplus, after paying the non-borrowing members in full, to be divided among the borrowing members. Held, that those non-borrow- ing members who did not discharge the society, were not bound by this arrange- ment, and were entitled to claim the surplus to the exclusion of the borrow- ing members who had all discharged the society. Harvey & O^Shaughnesey, M. Judgment confirming, 19 Nov., 1883. Sir A. A. Dorion, C. J., Moak, Ramsay, Tessier, Cross, JJ. The Chief .Justice and Monk J., dis. Rep. 6 Leg. News 369. Respondent borrowed from a building society f 600 and gave a deed to the fol- lowing effect: " 11 est expressement " stipule entre les dites parties. La So- " ciete Permanente de Construction du " Comte de Berthier et le Defendeur en " cette cause, que dans le cas ou le dit " debiteur se trouverait en aucun temps " avoir manque de faire six paiements " consecutifs de capital, amendfes, inte- " rets et bonus sur les dites douze parts " dont le montant lui est avance comme " susdit, alors toute la dite somme de " six cents piastres deviendra imme - " diatement due et exigible, sans qu'il " soit besoin 6!aucune notification ni " mise en demeure dans ce cas, il sera " loisible aux directeurs de la dite socie- " te, qui en auront absolument le droit, '' tel que le dit debiteur le leur donne " et les y autorise specialement par les " presentes, dans le but d'epargner les " frais Ae pour suite et d'unevente forc£e, 103 BUILDING SOCIETY BUILDING SOCIETY 104 " de cSder, vendre et transporter a qui '' et comma bon leur semblera, auzprix " et conditions qu'ils trouveront les plus " convenables et les plus avantageuses, " les immeubles plus haut deorits, et '' d'en passer bon et valable titre pour " et au nom du dit debiteur et de mettre " en possession et jouissance de tels im- " meubles I'acquereur ou les acquereurs " d'iceux, aussit6t apres la passation de " tel acte de cession ou vente qui aura " la meme force, valeur et eflfet que si le " dit debiteur lui-meme I'eut signe et " consenti." Notwithstanding the terms of thisjdeed the Building Society could not sell with- out the authorisation en justice, and a deed of sale by the Building Society to the Appellant, will be declared null and of no effect as regards the borrower, and the petitory action of the pretended pur- chaser will be dismissed. Gilinas & Marchand. Q. Judgment confirming, 4 May, 1883. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Baby, JJ. Eep. 9 Q. L. E., 120. The money advanced to the owner of a property by a building society becomes the money of the borrow6r,and the build- ing society cannot therefore claim any privilege for improvements made with such money, by the owner of the proper- ty, so as to defeat or retard the claim of the bailleur de fonds for which the owner is personally responsible. Grant, al. & La Soci4t6 Permanente de Cons- truction. M. Judgment reversing, 25 Jan., 1883. Sir A. A. Dorion, C. J., Eam- say, Tessier, Cross, Baby, JJ. v. Account. o CADASTRE. — A cadastre or schedule under " The Seigniorial Act of 1854 " and the acts amending the same, is a statement in tabular form, in triplicate of the rights to be dealt with in abolish- ing the seigniorial tenure, and their values. These cadastres afterwards served, in some sort, as a basis for the official plans and books of reference prepared for registration purposes, C. S., L. C, cap. 37, ss. 68, 69. A bail emphyt£otique made by a seignior of the right to build a saw mill on an island within the limits of the seigniory in consideration of a rent of £15 a year, is not a rente seigneu- riale within the meaning of the acts for the abolition of the Seigniorial tenure, or' such a rent as should be entered, in the cadastre of such Seigniory. Hart & Trudel, Q. Judgment reversing 5 December, 1874. Monk, Tasohereau, Bamsay, Sanborn, Bosse, JJ. The failure to make the opposition required by sections 40 and 41 of the Seigniorial Act of 1854, within the delay of six months, is fatal, and third parties 'acquiring from the grev€ as proprietor in possession can take advantage of it. The claim of the appe^^s becomes personal against the grevS. Panet & Boisseau & al., Q. Judgment reversing 8 September, 1879. Sir A. A. Dorion, C. J., Monk Eamsay, Cross, Kouthier, JJ. Eep. 5 Q. L. E. 377, 10 Eev. Leg. 163. The omission to enter in the cadastre a constituted rent to represent the former seigniorial rent cannot be recti- fied. La Corporation Episcopale Ca- thoUque Romaine du dioc&se de 8t- Myaeinthe & The Eastern Townships Bank, M. Judgment confirming 21 September, 1886. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby JJ. CAHIER DE CHARGES. Sale. CAPIAS. — V. Insolvency. § 1. Who mat pkooeed by capias. § 2. Who mat be aeeested on capias. § 3. Affidavit. § 4. Judge's oedbr 801 C. C. P. § 5. Whit. § 6. Petition to quash. § 7. Bail. § 8. sukrendek. § 9. Statement and abandonjiext. § 10. Miscellaneous. § 11. Insolvent act 1875. § 1. Who may proceed by capias, v. articles 798, 799, 800, 801 C. C. P. A creditor whose debt is secured by hypothec may an-est his debtor under capias for the same causes as if he had no hypothec. Benoit & Petitclerc, Q. Judgment confirming 7 December, 1877. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 9 Eev. Leg. 385, 1 Leg. News 32. (1) A debtor living in Ontario but coming to Montreal may be arrested under capias for secreting his effects in the Province of Ontario. Robertson & Gault & al., M. Judgment confirming 22 March, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. § 2 Who may be arrested under ca- pias Persons against whom the proper afiidavit can be sworn, may be arrested on capias. C. C. P. 798, 799, 800. " Saving the exceptions contained in arljcles 2272 and 2273 in the Civil Code, a V^rit of capias cannot issue : 1. Against priest or ministers of any religious denomination whatever ; 2. Against septuagenarians ; 3. Against females." C. C. P. 805. A debtor thrown into insolvency lOY CAPIAS CAPIAS 108 may be preceded against by way of capias by one of his creditors. Desjar- dins & Thibaudeau, et al. M. Judgment confirming, June 1875, Dorion, C. J., Monk, Eamsay, Sanborn, JJ. The same was ruled in the case of Beaudin & Roy, M. Judgment confirm- ing, 20 Septembre 1875. Dorion, C. J., Monk, Kamsay, Taschereau, Sanborn, JJ. Eep. 20 J. 308. A capias against an insolvent may be maintained for secreting his property, and this charge will be sustained by evidence to show that large sums suf- ficient to account for the insolvency have been made away with vace not accounted for. Downey & Winning, et al. M. Judgment confirming, March 1875, Dorion, C, J., Monk, Taschereau, Eamsay, Sanborn, JJ. The writ of capias " is obtained upon an affidavit of the Plaintiff, his book- keeper, clerk, or legal Attorney, de- claring that the Defendant is person- ally indebted to the PlaintiflF in a sum amounting to or exceeding forty dollars and that the Deponent has reason to believe, and verily believes, for reasons, specially stated in the affidavit, that the Defendant is about to leave imme- diately the Province of Canada, with intent to defraud his creditors in gene- ral, or the Plaintiff in particular, and that such departure will deprive the Plaintiff of his recourse against the De- fendant ; or upon an affidavit establish- ing, besides the existence of the debt as above mentioned, that the Defend- ant has secreted or made away with, or is about immediately to secrete or make away with his property and effects with such intent. C. C. P. 798. 'I The affidavit required in the above articles, may be made by one person only, or by several persons swearing each to a portion of the necessary facts, and it may be received and sworn to before a judge of the Superior Court, or by the Prothonotary who certifies the writ oi capias." CO. P. 807. (1) Note.— Eamsay, J., was absent at the rendenng of the Judgment. The president of an incorporated company is competent to make the affidavit for a capias under Art. 798, C. C. P. And the affidavit may be sworn before the Deputy Prothonotary. The Moisic Iron Co. & Olsen. Q. Judgment reversing, 6 Dec. 1873, Duval, C. J., Badgley, Monk, Taschereau, Eamsay, J.J., Monk, Eamsay, JJ. dis., but not as to these points. Eep. 18 J. 29. Where the affidavit for an attach- ment is in the form given by the Star tute it will be held sufficient although it does not follow precisely the terms of the code. And the affidavit being made before the Prothonotarj', and not before a Commissioner, does not make the form inapplicable as the affidavit before the Commissioner was given to obtain the remedy under article 834 C. C. P. Dalli- more hs-qu. & Brooke, M. Judgment confirming, 15 Sep. 1874, Dorion, C. J. Monk, Taschereau, Eamsay, Sanborn, JJ. Eep. 6 Eev. Leg. 557. Where deponent swears he " merely believes '' for reasons specially stated, it is not necessary to say he " has reason to believe." Philips & Sutherland, M. Judgment confirming, March 1875, Dorion, C. J., Monk, Taschereau, Eam- say, Sanborn, J J. An affidavit for capias, under C. C. P. 798, in which, as to the alleged secre- ting, the deponent swears : " Le depo- sant est informe d'une maniere croyar ble, a toute raison de croire et croit vraiment en sa conscience que le dit 0. B. a cache et soustrait et est sur le point de cacher et soustraire avec Tin- tention," etc., is sufficient. Blake & Wadleigh. Q. Judgment reforming, 7 Dec, 1882. Monk, Eamsay, Tessier, Cross, Baby,. J J. Eep. 6 Leg. News, 3. A defendant sued in damages for having illegally, fraudulently and felo- niously conspired with the cashier of a bank to rob it of its funds was arrested upon capias, on the affidavit of a direc- tor. This affidavit only speaks of the deponent's belief, except in one allega- tion. Eamsay, J., doubted as to whether 109 CAPIAS CAPIA8 110 swearing to belief was sufficient, but he thought that there was one allegation where the deponent swore positively by giving the reasons for his belief, and that this was sufficient. Goldring & The MocJielaga Bank. M. Judgment confirming, 24 June, 187S. Dorion, C. J., Monk, Ramsay, Cross, JJ. Rep. 2 Leg. News, 230. An affidavit is sufficient which alleges that the debtor is about to leave "the Dominion of Canada," when it can be gathered from the other allegations of the affidavit that the departure is really from a point within the limits of the former Province of Canada. Moisic Iron Company & Olsen. Q. Judgment reversing 6 December, 1873. Duval, C. J., Badgley, Monk, Taschereau, Ram- say, JJ. Monk, Ramsay, JJ. dis. Re- ported, 18 J. 29. It is a sufficient allegation to say that the Defendant was about to " leave that part of the Dominion of Canada hereto- fore constituting the Province of Cana- fla. Phillips & Sutherland. M. Judg- ment confirming, March, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, San- born, JJ. An affidavit which after setting up the ground of indebtedness, proceeds to state " that this deponent has every reason to believe and verily believes that the said Arnold Hagens the above name defendant is about to leave im- mediately the Province of Quebec and the Dominion of Canada, with intent to defraud his creditors in general, and that such departure will deprive the deponent of his remedy against the said Arnold Hagens, and also, that the said Arnold Hagens has made away with and is about immediately to make away with his property and effects with in- tent to defraud his creditors in general. That special reasons for such this depo- nent's behef are, that this deponent was informed this day by Cornelius C. Snowdon of MontreM, merchant, that the defendant, Arnold Hagens, was making away with his stock, and send- ing the money to Germany, with intent to defraud his creditors, and that he, the said Arnold Hagens, was about to leave the country, and that this deponent has recently received similar informa- tion from other persons, &c.. " is suffi- cient and such affidavit will be suffi- ciently substantiated by evidence that he was making awa-y with the goods of the firm of which he was a partner. Art. 797 C. C. P., says so in terms, Sa- gens & Bamsay.M.. Judgment confirm- ing, March, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Note It will be observed that the affidavit was filed in support of two grounds of capias, secreting and de- parture. " It was sustained ; but the Court did not hold that it was sufficient to allege that the defendant was about to leave the Dominion of Canada, as in the Moisic case, or the Province of Quebec. The " Province" referred to in C. S. L. C, c. 87, § 8, was the then Province of Canada. An affidavit which after relating the indebtedness sets forth " that Mr. P., the deponent's partner was informed last night in Toronto, by one H. a broker, that the said W. P. S. was leav- ing immediately the Dominion of Ca- nada, to cross over the sea for Europe or parts unknown, and deponent was himself informed, this day, by J. R., broker, of the said W. P. S's departure for Europe and other places" is defec- tive. Shaw & McKenzie. M. Judgment confirming, 12 Nov., 1880. Rep. 3 Leg. News, 369. It is not necessary in the body of an affidavit to state where the debt arose specially. A debt arising from the acceptance of a succession is a personal debt. If the capias be taken because the debtor is about to leave Canada, the affidavit must allege in what the fraud consists. Huriubise & Bourret. M. Judgment confirming, 4 February, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 9 Rev. Leg., 638, 2 Leg. News, 54, 23 J. 130. Damages claimed for the breach of a contract made in Norway, but to be Ill CAPIAS CAPIAS 112 executed in the Province of Quebec, do not constitute " a debt created out of the Province of Canada." (Art. 806 C. P.) The Moisic Iron Co. S Olsen. Q. Judgment reversing, 6 Dec, 1873. Duval, C. J., Badgley, Monk, Tasche- reau, Ramsay, JJ. Monk, Eamsay, J J., dis. Rep. 18 J. 29. Une deposition pour I'emanation d"un bref de capias ad respondendum, faite apres I'institution d'une poursuite pour le recouvrement d'une creance, et con- tenant seulement I'allegue, que depuis I'institution de I'action le defendeur a cache et soustrait ses biens, dettes et effets, avec I'intention de fraud er ses creanciers en general, et les deman- deurs en particulier, est suffisante et legale, et qu'il n'est pas necessaire de donner, dans cette deposition, les rai- sons de la oroyance du deposant. Le defendeur sur le bref de capias qui demande sa cassation, sur requete, ne sera pas admis au merite sur la requete, a transquestionner le depo- sant, mais qu'il doit en faire son propre temoin. Danjou & Thihaudeau & al., Q. Judgment confirming 4 May, 1SS2. Rep. 11 R. Leg. 512. An affidavit for capias, which sets out merely the intended departure of Defendant without paying his debt to Plaintiff, is insufficient. Cajfrey & Lighihall, M. Judgment reversing 30 June, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 4 Leg. News 282, 2 Deo. d'A. 10. § 4. Judge's order 801 C. C. P. " If the demand be founded upon a claim for unliquidated damages tlie writ of capias cannot issue without a judge's order after examining into the sufficiency of the affidavit ; and the affidavit in such case must state the nature and moreover the amount of the damages sought, and the facts which gave rise to them, and the judge may in his discretion, grant or refuse the capias, and may fix the amount of the bail upon giving which the defendant may be released." The following form of the judge's order required by art. 801 C. P., is sufficient : " Seeing the foregoing affi- davit, the amount of bail to be given under article 801 of the Code of Civil Procedure is hereby fixed at " The Moisic Iron Co. & Olsen, Q. Judg- ment reversing 6 Dec, 1873. Duval, C. J., Badgley, Monk, Taschereau, Ram- say, JJ. Rep. 18 J. 29. § 5. Writ. The writ of capias may be executed on a Sunday, under art. 786 C. C. P. The Moisic Iron Co. & Olsen, Q. Judg- ment reversing, 6 Dec. 1873. Duval, C. J., Badgley, Monk, Taschereau, Ram- say, JJ. Monk, Ramsay, JJ., dis. Rep. 18 J. 29. A Writ of capias under which one of several Defendants is arrested, although it be headed as if there were only one Defendant, the affidavit being properly ' headed and i-eferring to the Defendants . is sufficient. Phillips vs. Sutherland, M. Judgment confirming March, 1 875. Dorion, C. J., Monk, Taschereau, Eam- say, Sanborn, JJ. Where a Writ of capias could not be executed, and the. delay for the return was consequently insufficient. Held that the Plaintiff may take an alias Writ to detain his debtor. Richard & Wuriele, Q. Judgment confirming 7 December, 1877. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 1 Leg. News 32. § 6. Petition to quash. " Upon a petition presented to the Court, or to a judge in term or in vacation, the Defendant may obtain his discharge by establishing that he is not liable to be imprisoned, or by showing that the essential allegations, ^ of the affidavit upon which the capias is founded are false or insufficient." C. C. P. 819. Where a petition to quash setting up matters of law is rejected,, the Defendant will not be allowed to pre- sent another petition as to the facts. 113 CAPIAS CAPIAS 114 Phillips and Sutherland, M. Judg- ment. (1) A Defendant arrested on capias must raise all his objections to the suffi- ciency of the affidavit in the Court of first instance, as none others will be considered in appeal. Heyneman & Smith, M. Judgment confirming 18 September 1877. Dorion, C. J., Monk, Ramsay, Tessier, JJ. Bep. 21 J. 298. And, it appears, that where an objection to a petition to set aside a capias is not taken in the Court below, it will not be considered in appeal, and the petition was heard although another petition had been heard and rejected in the Court below, prior to the one now in appeal. Brown & The Canadian Bank of Commerce, M. Judg- ment January, 1876. The Appellant gave the Bank corn for advances, by transferring the Bill of Lading under a special receipt by which the Bank was to be paid out of the proceeds. The Appellant's firm sold the corn and appropriated the money to pay another creditor. The petitioner contended that the corn was not that of himself or of his firm — that if it was they had dealt with it as the Bank directed, and that he had personally no part in the fraud, if any, and 'that at most the payment was merely a preference not secreting. The capias was maintained. The corn was sold as the property of Petitioner's firm, and the proceeds were funds in their hands destined to the payment of the Bank. The payment to another was a fraudulent secreting of this money, and they are liable for it as for any other funds in their hands. Their excuse is virtually, this is not secreting it is an offense under the larceny act. It is therefore more than a mere preference. Brown & the Canadian Bank of Com- tnerce. M. Judgment confirming, 27 (1) If DTE. — Mentioned in factum in Brown & The Bank of Commerce. January, 1876. Dorion, C. J., Ramsay, Sanborn, Tessier, JJ. A payment made in the ordinary course of business, although it may be in some sense a preferential payment, does not justify a capias, but a prefer- ential payment may be of such a char- acter as to amount to a secreting, and so justify a capias. Ferland & Nield, Q. Judgment confirming, 3 September, 1877. Dorion, C. J., Monk, Ramsay, McGord, JJ. A fraudulent preference, by which assets which should be available to the creditors generally, are given to one or more is equivalent to secreting. Oault et al. & Dussault. M. Judgment rever- sing, 1 Oct., 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk, Cross, JJ. dis. Rep. 4 Leg. News 321. An insolvent debitor, who without fraud, sells his property to a minor with long credit, without consulting his cre- ditors is not liable to be arrested on capias. Beaudette & Audette, Q. Judg- ment confirming, 7 June 1878, Dorion, Monk, Ramsay, Tessier, Cross, JJ Monk, J., dis. Rep. 8 Rev. Leg. 581 A capias will be set aside on evid- ence that the party arrested was young, that he acted under the influence of his father, although he being book-keeper of the concern, of which he was a part- ner, made fraudulent entries in the books, to the damage ot the creditors. Leclaire & Dastous. M. Judgment con- firming, rendered at Q. 8 Oct. 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Ramsay, dis. § 7 Bail. The defendant may obtain his dis- charge upon giving two good and sufficient sureties that he will not leave the province of Canada and that in case he does so, such sureties will pay the amount of the judgment that may be rendered in principal, interest 'and ■ costs ; or the amount fixed by the judge in the case of art. 801. But this bail cannot be received after the expiration of the eighth day from the day fixed 115 CAPIAS CAPIAS 116 for the return of the writ of capias unless with leave of the court expressly granted upon sufficient cause shewn. C. C. P. 824. A defendant arrested under capias may obtain his provisional discharge by giving good and suflBcient sure- ties to the SheriiF to the satisfaction of the latter before the return day of the writ, that he will pay the amount of the judgment that may be rendered upon the demand in principal, interest and costs, if he fails to give bail pursu- ant to Art. 824 or to Art. 825. 828 C. C. P. § 8. Surrender. The Defendant arrested on capias may also obtain his discharge at any time before judgment, by giving good and sufficient sureties to the satisfaction of the Court, or judge, or prothonotary, that he will surrender himself into the hands of the Sheriff, when required to do so by an order of the Court or Judge, within one month from the service of such order upon him or upon the sureties, and that in default they will pay the amount of the judgment in principal, interest and costs, or the amount fixed by the judge in the case of article 8U1, C. C. P. 825C. C. P. 831,833. The sureties of a debtor arrested on capias, who were under bond to the sheriff are freed from their liability, if on the day of the return of the' Writ they dehver the debtor to be held under the Writ. (Art. 828 C. C. P.) Angers & Trudel & al., Q. Judgment confirming 5 June, 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Eep. 10 Eev. Leg. 566. § 9. Statement and abandonment. A Defendant arrested under a capias ad respondendum, who has given special bail under C. C. P. 824, not to leave the heretofore Province of Canada, is not liable to contrainte par corps if he neglects to file the statement and make the declaration of abandonment men- tioned in art. 764 C. C. P., within 30 days from date of judgment maintain- ing the capias. Cossitt & Lemieux, M. Judgment confirming 22 November, 1880. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Ramsay, Baby, JJ., dissenting. Reported 5 Leg. News 254, 2 Dec. d'A. 14. Inasmuch as the Code of C. P. failed to attach any penalty whatever for not filing the statement required by art. 766, the penalty provided by art. 2274 of the C. C. and by ch. 87 of the Cons. Stat, of L. C, sec. 12, sub-sec. 2, cannot be enforced ; the effect of art. 1360 (1) of the Code of C. P., being to repeal the provision of the Statute and of the Civil Code. Molson & Carter, M. Judg- ment reversing 6 March 1882. Sir A. A. Dorion, C. J., Monk. Ramsay, Tessier, Baby, JJ. Ramsay, Baby, JJ., dissent- ing. Rep. 26 J. 159, 8 Q. L. R. 338. § 10. Miscellaneous. Where a capias has been declared good, and the Defendant in appealing from the judgment maintaining it gives security for costs only, and files a declaration that he does not object to the execution of the judgment, the appeal does not suspend proceedings against' the sureties to the sheriff. Lajoie & Mullin & al., M. Judgment reversing 21 December, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 21 J. 59. A creditor who arrests his debtor on (1) The laws concerning procedure in force at the time of the coming into force of this ■ Code are abrogated : ■ lo. In all oases in which this Code contains any provisions having expressly or implied- ly that effect ; in all cases in which such laws are contrary to or inconsistent with any provision of this Code or in which express- provision is made by this Code upon the par-*.' ticular matter to which such laws relate.— i' Except always that as regards proceedings, j,^ matters and things anterior to the commgi^ into force of this Code, and to which its pro^ visions could not apply without having a retroactive effect, the provisions of law which; without this Code, would apply to such pro- ceedings matters and things remain in totce and apply to them, and this Code applies to them only so far as it aoincides with such pro- visions. 1-17 CAPIAS CARRIER 118 capias, and has probable cause for so doing, is not liable in damages although the debtor can justify his proceedings. Lapierre & Oagnon, Q. Judgment reversing 7 December, 1877. Dorion, C. Ji, Monk, Ramsay, Tessier, Cross, JJ. Tessier, J., dis. Rep. 8 Rev. Leg. 727, 1 Leg. News 32. Want of reasonable and probable cause Damages. S., a debtor resident in Ontario, being on the eve of depar- ture for a trip to Europe, passed through the city of Montreal, and while there refused to make a settlement of an overdue debt with his creditors, McR. et al., who had instituted legal proceedings in Ontario to recover their debt, which proceedings were still pending. McR. et al., thereupon caused him to be arrested, and S. paid the debt. Subsequently S. claimed dam- ages from McR. et al., for the malicious issue and execution of the Writ of capias. McR. et al., the respondents, on appeal, relied on a plea of justification, alleging that when they arrested the appellant, they acted with reasonable and probable cause. In his affidavit, the reasons given by the deponent McR., one of the defendants, for his belief that the appellant was about to leave the Province of Canada were as follows : — "That Mr. P., the deponent's partner, was informed last night in Toronto by one H., a broker, that the said W. J. S. was leaving immediately the Dominion of Canada, to cross over the sea for Europe or parts unknown, and deponent was himself informed, this day, by J. R., broker, of the said W. J. S's departure for Europe and other places " The appellant S. was carrying on business as wholesale grocer at Toronto, and was leaving with his son for the Paris Exhibition, and there was evidence that he was in the habit of crossing almost every year, and that his banker and all his business friends knew he was only leaving for a trip ; and there was no evidence that the deponent had been informed that appellant was leaving with intent to defraud. There was also evidence given by McR., that after the issue of the capias, but before its execution, the deponent asked plaintiff for the pay- ment of what was due to him, and that plaintiff answered him " that S. would not pay him, that he might get his money the best way he would." Held : That the affidavit was defec- tive, there being no sufficient reason- able and probable cause stated for believing that the debtor was leaving with intent to defraud his creditors ; and that the evidence showed the respondent had no reasonable and probable cause for issuing the writ of capias in question. Damages for illegal arrest under capias. Probable cause is a sufficient justification for arrest under capias. Shaw & Mackenzie. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Dorion, C. J., Cross, J., dis. Judgment confirm- ing 12 Nov., 1880. Rep. 3 Leg. News 369, 2 Dec. de la Cour d'Appel 25. On appeal to the Supreme Court the judgment was reversed, that Court being of opinion that the depar- ture of the Plaintiff without paying a commercial debt after having avoided Defendants' collector, vainly resisted payment by an untenable action, and then setting his creditor at defiance by telling him he would not pay, and that he might get his money the best way he could was not " probable cause " to justify the allegation of the Defendant that he was leaving the Province with intent to defraud. Where a person who has been ar- rested under a capias and given bail has been subsequently adjudged to file a statement and make a judicial aban- donment of his property, and has made default, that he cannot be condemned to imprisonment in consequence of such default. Goldring & La Banque d' Hochelaga, M. Judgment reversing 21 March, 1885. Sir A. A. Dorion, C. J., Monk, Ramsay. Cross, Baby, JJ. Rep. 29 J. 192. § 11. Insolvent Act 1875. Capias under section 9. Cimon & Amos, Q. Judgment confirming 8 June, ir.) CARRIER CARRIER 120 1881. Sir A. A. Dorion, C. J., Monk, Kamsay, Cross, Baby, JJ. " Any debtor confined in gaol or . on the limits in any civil suit, who may have made the assignment provided for in this act, or against whom process for liquidation under this act may have been issued, may, at any time after the meeting of creditors provided for in this act, make application to the judge of the county or district in which his domicile may be or in which the gaol may be in which he is confined, for his discharge from imprisonment or confinement in such suit ; and there- upon such judge may grant an order in writing, directing the sheriff or gaoler to bring the debtor before him for examination at such time and place in such county or district as may be thought fit; and the said sheriflF or gaoler shall duly obey such order, &o.'' Inaotl875, s. 127. (1) GauU& Robertson, M. Judgment confirming 22 Marcli, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Monk, Ramsay, JJ., dis. CARRIER. — Eailwat oases An ac- ceptance by a carrier, to whom it was agreed the goods were to be delivered, is not such an acceptance by the carrier as under our system prevents the pur- chaser refusmg to receive the goods and pay for them if they are of inferior quahty. Huston & Bailie. Q. Judg- ment reversing, 4 March, 1875. Dorion, C. J., Monk, Ramsay, Sanborn, Plamon- don, JJ. A carrier, bailee of a quantity of corn, put on board his ship, can plead the same defence to a saisie revendication as would be good in the mouth of the consignor. It is to urge his own interest and not to exciper le droit d'autrui. Borrowman & al. & Bass. M. Judg- ment confirming, December, 1876. Do rion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. NoTE._The Chief Justice heard the (1) Note.— Kepealed. case but took no part in the decision,' he being administrator of the Govern- ' ment of Quebec, at the time. A carrier is responsible for the loss of a passenger's baggage by fire, unless he proves that the fire arose through no fault of his. It is not sufficient to show generally care, but the fact must be ex- plained. Fire is not necessarily pre- sumed to he force majeure. The Cana- dian Navigation Company & McGon- key. M. Judgment confirming, 14 Dec, 1877. Sir A. A. Dorion, C. J. Monk, Ramsay, Tessier, Cross, JJ. Rep. 1 Leg. News, 23. A notice on a passenger's ticket that the carrier will not be responsible for the safe-keeping of the passenger's baggage, is not binding on the passen- '■, ger, without proof of notice to him of limitation of liability. Allan & al. & Woodioard. M. Judgment confirming, 18 September, 1878. Dorion, C J., Monk, Eamsay, Tessier, Cross, JJ. 22 J. 315. 1 Leg. News, 458. Railway companies subject to the provisions of the act respecting rail- ways, (C. S. C. C. 66) are bound to carry all goods that are offered at any of then- stations to any other station on their line, unless some valid reason be as- signed for not doing so. The Canadian Railway Act is compulsory and not per- missive only. Under it railway com- panies are made common carriers, and they cannot limit their obligations by a ; notice stating that they will not carry any class of goods, witnout assigning a sufficient reason for such refusaL Ruth erford & The G. T. Railway. M. Judg- ment reversing, 17 March, 1875. Eep.' 20 J. 11. A way-bill by common carrier for goods may be transferred by endorse- . ment, like a bill of lading. Being so transferred, and the carrier being noti- fied of the transfer, the goods can only be delivered to the holder. The agent of a Railway Company in charge of one of its stations, will be pre- sumed to be authorized to give such way-bill (styled '• shipping bill" in the form used), and the company will be bound by hi. Ex delicto, (6) We may further distinguish mali- cious delicts, and the lesser wrong-doing attributable to negligence or inadver- tance. This classification is complete, as will readily be seen if we reject the idea of consent being a necessary ingredient of the obligation ex contractu. The older idea was this, persons are contractually obliged by their deed, formally by words or by writings, and even by ac- quiescence {consensus). When the con- tract became limited to a regular bar- gain, consensus was easily generalized to cover every expression of assent. But the Act, (not a consent express or im- plied), to which the law attaches an obligation, was not provided for. Hence we have the obligation, which binds exactly as a contract binds to complete this part of the system. The other part is the obligation arising from misdeeds. In these no reciprocity of sentiment can be presumed. A good summa divisio of obligations would be : (a) those ari- sing from will express or impHed, and those arising against the will of the parties obliged. As to obligations arising from the operation of the law solely, I confess to being unable to place this category in any summa divisio. It is also an unmean- ing phrase. All obligations arise from the operation of the law solely. '^ funda- mentum obligationis est lex." Heinecius Recitationes, § DCCLXIX. If however, it is intended to classify the kinds of law which create obligations by giv- ing constructive force to acts, then it is evidently a secondary division of the obligations ex quasi contractu, for in- stance, arbitrary laws declaratory of rights. . But this is not exactly what Pothier means. Obi. 123. The report of the codification com- missioners on the title of obligations has purposely avoided any discussion of these classifications. Evidence of the rates of value for oei'- tain supplies to be furnished, will not be sufficient to establish a contract be- tween Plaintiff and Defendant ; though 141 CONTRACT CONTRACT 142 it may possibly be sufficient as a commen- cement depreuve. (1) Meigs et al. & Foster. M. Judgment confirming, 22 December, 1876. Sir A. A. Dorion, C. J., Monk, Ramsay, San- bom, Tessier, JJ. Note Dorion C. J., was absent at delivery of Judgment, and took no part in dilib£r4, being then administrator of the Government of Quebec. Privity of contract is not a technica- lity of our law. A creditor, to save a circuit of actions, may under our law, sue the debtor of his debtor. The sale of certain things, and the obligation to pay certain debts, together with the good will of the business will be interpreted as an undertaking to pay a draft given to a bank and not necessarily mentioned in a schedule as part of the transactions, or by the De- fendant known to be part of the trans- actions in question. Hood & The Bank of Toronto. M. Judgment reversing, 19 June 1880. Dorion, (J. .J., Monk, Ram- say, Tessier, Cross, JJ. Monk & Tessier, JJ., dis. Rep. .3 Leg. Xews 234. The parties and one Angus MaoDo- nald tendered for the construction of the graving dock at Quebec, which in- cluded the , dredging, masonry and other works. On a second tender the works were awarded to Peters, and the Respondents obtained a contract for the dredging through Peters, but di- rectly from the Government. Meld : — Reversing the judgment of the .Superior Court : That although there were no articles of partnership signed between the parties, from their correspondence it appeared that all were to have a share in any contract they might obtain, either for the whole work, or for any portion of it, and more specially for the dredging, whether such contract was obtained directly from the Government or as a sub-con- tract ; and that Appellant was entitled to claim damages from the Respondents (1) Query. — Is a contract to construct part of a railway, a comnigroial matter ? for their refusal to acknowledge him as a partner in the contract for the dredging. Kane & Wright et al. Q. Judgment delivered in M. .'^1 Dec. 1880, reversing. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 1 Dec. d'A. 297, 4 Leg. News 15. Where a contractor undertook to put in pipes and a heating apparatus, and by letter assured the party for whom the work was to be done that it will not exceed that amount (1225), but may fall considerably below that figure without registers. The registers will amount to about $75 extra and added "I again mention that we think the figures given will exceed the ultimate cost," the charge of the contractor will be limited to the amount mentioned. Gurney et al. & Nordeimer. M. Judg- ment confirming, 17 Dec. 1883. Sir A. A. Dorion, C J., Monk, Ramsay, Baby JJ., Monk, J., dis. Where a party has received goods by transfer in the books of the Custom House and does not refuse to take them over till long after, and till the price has fallen he cannot repudiate his con- tract. Dufresne et al. & Ross et al. M. Judgment confirming, 16 March 1877. Monk, Ramsay, Tessier, Sicotte, Belan- ger, JJ. AVhere under a contract Defendant received twelve bonds from Plaintiff as security for the performance of an obligation to pay Defendant ten thou- sand dollars, it being stipulated that on receipt of the said amount the twelve bonds should be returned to Plaintiff, the ten thousand dollars being paid to Defendant, he cannot question Plaintiffs title to the bonds. Baylis & Drummond. M. Judgment re- versing, 21 December 1876, Dorion, C. J., Monk, Ramsay, Sanborn, Tessier JJ. Dorion, C. J. absent at judgment. Con- firmed in Supreme Court. Rep. 2 Sup. Court R. 61. A Steamship carrying passengers and a valuable cargo, from Liverpool to Montreal, having lost her screw, and having been six days under sail, was in 143 CONTRACT the Gulf of St-Lawrence near a danger- ous coast, and exposed to peril. Beld .-—That an agreement made by the captain to pay £800 sterling for towage into Gaspe Harbor (a distance of about 50 miles) should be enforced, seeing that the service might properly be treated as salvage, and as such was worth at least the sum fixed by the agreement. Stuart & Bremis. M. Judg- ment confirming, 20 June 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby JJ. Ramsay, J. dub. Rep. 26 J. 14. 4 Leg. News 203. Dec. d'Ap. 319. The Respondents sold to the Appel- lant from 300 to 350 tons of coal sub- ject to the condition that " if at any time the operations or business of the Company at the mines or on its Rail- ways or Canals were interrupted by floods, etc or by strikes among the miners, etc »the obligations of the Company to deliver coal under its con- tract or agreement may be cancelled, at the option of the Company, and the Company shall not be liable for dam- ages by reason of such non delivery." Held : — lo That an interruption in the operations of the Company, caused by a strike among the miners, which lasted from the 25th of July to the 1 5th of October, although began at the date of the contract, was such an interrup- tion as justified the Company in can- celling the contract. 2o That although the Company might have procured coal elsewhere to fulfil its contracts, it was not obliged to do so. 3o That no demand or judgment was required to cancel the contract, which was cancelled by a mere notice given by the Company. Mason & Delaware, Lackawanna & Western Railway Co. M. Judgment confirming, 2 Feb. 1881. Sir A. A. Dorion, C. J. Monk, Ramsay, Cross, Baby JJ. Rep. 1 Dec. d'A. 204. A property was sold " free and clear of all incumbrances whatsoever, save and except a vendor's privilege for $5,250 in the heirs McKenzie " which CONTRACT 144 the vendors by the deed of sale under- took to pay, and have a . Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. 'Sanborn, J. dis. Where the libel complained of is only the answer to personal and inju- rious attacks, no damages will be allowed. Beers & Bowkers. Judgment oonfirming, M. June, 187.5. Dorion, C. J., Monk, Taschereau, Eamsay, San- born, JJ. The use of the expressions dol and fraud in an action are not necessarily libellous. And an action to set aside a deed on the ground of dol and fraud is not libellous, if the allegations be made with propable cause and without malice, although the party making the allegation fails in his suit also. A com- plaint to the council of the bar is not a libel even if the complain t be rejected, if it be made with probable cause and without malice. BartJie & Boudrealt. Judgment reversing Q. 7 .June, 1878. Sir A. A. Dorion C. J., Monk, Ramsay, Tessier, Cross, JJ. A medical jiractitioner is liable in damages for maliciously publishing, in an action against his patient for fees for his services, the nature of the mala dy for which such services were rend- ered. And malice will be presumed from the publication. H. & T., Q. Judg- ment reversing, b June, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 5 Q. L K. 267. 9 Rev. Leg. 579. 2 Leg. News 202. In a civil action for damages for verbal slander, the truth cannot be DAMAGES 206 pleaded as a defence, unless it be that the occasion justified the statement, and that there was no malice. The charge in the criminal law does inci- dentally affect the civil recourse. FaJiey & Baxter. M. .Judgment confirming, 11 Dec, 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. If a neighbour builds on a wall not mitoyen, without the consent, of the owner, he will be compeltedto demolish the construction so illegally made and to pay damages. Hart ama.ges may be recovered from the employer of a workman, who slipped while working for Defendant a con- tractor, on the roof of a house, and so let fall a blunt instrument, which wounded Plaintiff and caused him serious damage. Art. 1054 C. C. Dehlois & Gla.ss. Judgment confirm- ing, 16 March, ISS7. JNIonk, Eamsay, Sanborn, Tessier, J J. C'ehii qui, sans raisonet par pure ma- lice, fait arreter quelqu'un, et le fait emprisonner temporairement, sera con- damne a lui payer des dommages. Fraser & Gagnon. Q. Judgment con- firming, 8 May, 1882. Sir Aw\. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Eep. 11. E. Leg. 517, Where a party misappropriates mo- ney given him for a special purpose, and the lender lodges a crinninal infor- mation against him, but suspends the execution in order to force the offender to a settlement, an action for malicious prosecution will lie. Loranger &- Wil- leti. M. Judgment reversing, 22 June, 1874. Dorion, C. J., Taschereau, Eam- say, Sanborn, Lorange>-, JJ. Eamsay, Sanborn, J J., dissenting, being of opi- nion that although there was an evil motive on the part of Respondent, there was piobable cause, and there- fore Eespondent was not liable. Rep 23 J. 184, 9 Eev. Leg. 656. AVhere a party without malice but unjustifiably, arrests another, who without going to gaol makes a transac- tion as to the debt and costs, without any special reservation of his right to damages for false ariest, it will be pre- sumed that he waived any such right to damage. Lapierre & Gagnon. Q. Judgment reversing, 7 Dec, 1877. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross. JJ. Tessier J. dis. Eep. 8 Eev. Leg. 727, 1 Leg. News 32. A woman unlawfully appropriated some ice without the intention of stealing, probably only intending to annoy her neighbour, who prosecuted her for larceny. Held, she was not entitled to recover damages, as the prosecutor had probable cause for the prosecution. Ryan & Lavioletie. M. Judgment confirming, 14 June, 187S. Sir A. A. Dorion, C. J., Monk, Kamsay, Tessier, Cross, JJ. Reji. 1 Lea. News 289. Plaintiff was condemned to pay cer- tain costs in a jirosecution before Jus- tices. He paid the costs to one of the Justices, who ke23t the money. The Plaintiff was arrested for non-payment. Held, th&t the payment to the justice was not a sufficient payment, and the arrest being legal, the action was dis- ■ missed. The Court of Appeal confirmed this judgment. Bousseau & Lanouette. Q. Judgment, 6 March, 1879. Sir A. A. Dorion, C. J., Monk, Ilamsay, Tessier, Cross, JJ. Damages cannot be recovered against a person who, in good faith, arrests an- other under a judgment, although such judgment be erroneous. Langlois & Normandk al. Q. Judgment confirm- ing, 8 Sept., 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. C Q. L. R. 102. A public officer in the discharge of his duties seized a quantity of furs for contravention of the game Laws, and the seizure was maintained by a magis- trate. The action goes on the ground 209 da.mA(;k.s DAMAGK: 210 that the magistrate exceeded his juris- diction ; but no steps were taken to set aside his decision. Held, that the Court cannot incidentally decide as to the extent of jurisdiction of the magis- trate. The Governor & Company of Adventurers & J)ecoteau. Q. .Judgment confirming, 7 May, 1883. Sir A. A. Do- lion, C. J., Monk, Eamsav, Tessier, Baby, JJ. Where a corporation is sued for ille- gal arrest by its officers, it is sufficient for the defendant to show that the offi- cer had probable cause. Where a person not licensed to sell was arrested while writing down orders for the house which he represented, that the police officer had probable cause for the arrest, under a by-law of the corporation forbidding to sell without license. La Cprporaiion de la CiU de Quebec & PicM. Q. Judgment reversing, 6 December, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. S Leg. News 18, II Q. L. E. 249. In an action of damages for an accu- sation of perjuiy, it is not justification to say that defendant swore in an affi- davit in support of a petition en desti- tution de tutelle that the assembMe de parents took place at the house of one Major, instead of at the office of the Prothonotary, where it really took place, and that the meeting was secret, and the nomination of the tutor frau- dulent, unless it appears there was a wilful intention to mislead ; and such intention will not be presumed, if there been sufficient circumstances surrounding the nomination of the tutor to justify suspicion of fraud, although fraud may not have been suf- ficiently established. Major I. Judgment confii-ming, 16th Dec, 1881. Monk, Ramsay, Tessier, Cro^s, Baby, J J. Monk, Ramsay, J J., dis. Rep. 5 Leg. News 114. 2 Dec. d'A. 115. A corporate body (teachers) will be liable in damages for carelessness in discharging a cannon on its own pro- perty by which the Plaintiff's husband was killed on his own property at a distance of four arpents. And the complicity of the Corporation will be presumed from proof of one of the professors being present directing the operation. Les Clercs Paroissiaux de St-Viateur & Labelle. M. Judgment confirming, 4 Feb. 1879. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, I'ross, JJ. Rep. 2 Leg. News 83. An action of damages which sets forth that a corporation unlawfully, in constructing a front road, tore down Plaintiff's fences of certain lands des- cribed in the declaration, such descrip- tion not including PlaintifTs land, is not demurrable. Whitman & The Corpora- tion of the Township of Stanhridge. II. Judgment reversing, 18 Sept., 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Cross, J. dis. Rep. 32 J. 17('), 1 Leg. Xews 474, 9 Rev. Leg, 652. An Hotel Keeper was given a mare to keep. He was unable to return it, and said it has been stolen from his pasture by night, but that he was in no way responsible, for that the bargain was made with the son. Held that the bargain was only made with the son who was acting for the father at the hotel, and that it was ratified by the Defendant. Leonard & Levy. M. Judg- ment confirming, 25 Jan., 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Baby, J. dis. AVhere a landlord injures his tenant by negligence, in making alterations and repairs, damages may be recovered. JoUcceur &: Moisan. M. Judgment confirming, 3 February, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. If water-pipes of a bad and insufficient kind burst in a leased housp, and damage the tenant's property in the house, the landlord will be liable in damages. Mann & Munro. M. Judg- ment confirming, Sept. 1875. Dorion, C. J., Monk, Taschereau, Ramsay, San- born, JJ. And another tenant in possession of the portion of the premises where the break actually took place will not be liable as garant of the landlord. Mann & Nield. Judgment confirming. lb- Negligence of lessee. Damages. J)' An- glais & Lochead. M. Judgment con- firming, 3 Feb., 1870. Monk, Eamsay, Sanborn, Tessier, Sicotte, JJ. 217 DAMAliES DAMAGES 21& Comparison of our article 1 629 C. C. 1 1 ) and the art. 1733 C. N. (2) Semble by the majority of the Court, that the rule of our article is the same as that of the C. N. Steele & Jamieson. M. Judgment reversing, 22 June, 1876. Dorion, C. J., Monk, Ramsay, 8anborn, Tessier, JJ. Ramsay & Tessier JJ. dis. are of opi- nion that it is Bufi&cient for the tenant to show reasonable cause, and that he is not absolutely obliged to establish cas fortuii. Confirmed in Privy Council. A lumbei-man whose logs drift on to the land oisi riverain proprietor is liable for the damages caused to the land, if he does not use due diligence in pre- venting the logs becoming stranded on the land, or, if that be impossible, if he does not use due diligence in removing them. Momeau & Atkinson. Q. Judg- ment reversing, 5 June, ] 877. Dorion, C. J., Monk, Ramsajr, Sanborn, Tessier, JJ. Damages are due by persons lum- bering who leave their logs on the low lands by the river-side and so cause injury to the proprietor. Guilmoy & Methoi. Q. Judgment confirming, 4 Dec, 1880. Sir A. A. Dorion, C. J.. Monk, Ramsay, Cross, JJ. A steamboat company is liable in da- mages to a passenger injured on a wharf, where one of the company's steamers stopped to land its passengers, by fall- ing at night down a slip which was not not protected by any railing, and which was not indicated by lights. Borlase & St. Lawrence Navigation Co. Q. Judgment confirming, 7 Dec, 1877. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. Rep., 1 Leg. News, 32. (1) When loss by fire ocoma in the premises leased there is a legal presumption in favor of the lessor that it was caused by the fault of the lessee or of the persons for whom he is responsible ; and umess he proves the con- trary he is answerable to the lessor for such (2) II (the tenant) repond de I'incendie a moijis qu'il ne prouve que I'incendie est arriv6 par cas fortuit, ou force majeure, ou vice de construction. Ou que le feu a ete commimique par une maison voisine. -i^ction for damages to cargo of tea b}^ the use of chloride of lime which it was alleged had impregnated the tea with an offensive odour. Held, that the evi- dence did not establish the fact of damage satisfactorily, so as to charge- the ship, and that due diligence had not been used to notify the ship-owner of the damage. Moore & Harris. M. Judgment confirming, September, 1874- Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, J J. Monk J., dis. IvilHng cattle on a railway by a train., a railway company running a train on another Company's line and killing cattle that have wandered on to the line owing to the insufficiency of the fences, is liable in damages to the pro- l^rietor of the cattle, on the principle that such company is using the line when in an unfit state. Evidence that the railway fences were in a bad state will give rise to a presumption that the- cattle got access to the track owing to the bad state of the fences. And it is no answer to the action that Plaintififs' line fences were not constructed, and that cattle wandered on to the tracks tln'ough a neighbour's land. The whole duty of fencing falls on the railway company. The Central Vermont Hail- way Company & Paquette. M. Judg- ment confirming, 22 Sept., 1879. Sir A. A. Dorion, C. .J., Monk, Ramsay,. Tessier, Cross, J.J. Where a steamer by negligence came in collision with a barge and damaged her so that she sank with a quantity of peas on board, the steamer will be liable for the damage to the peas. And the action may be brought by the Insurance Company, which has paid the freighters in the name of the owners, and that' subrogation took place by operation of law, and that the owners of the steamer were sufficiently notified of the extent of the accident, by notice given the day after ; that the captain of a barge navigating the inland waters of the St. Lawrence was not expected to have the highest nautical skill, all that is required is that he should use ordinary care. The Richelieu & Ontario Navi- gation Company & Lafreni&re et al. M. Judgment confirming, 14 June, 1879.. :.n9 DAJI.VGES DAMAGES 220 Sir A. A. Dorion, C. J.- Monk, Sicotte, Eamsay, Tessier, JJ. Kei... 2 Leg. News 204. A barge which suffers damage by a steamer owing to the former having failed to exhibit a white light in accord- ance with the requirements of law, can- not recover compensation in damages from the steamer. Peloquin et al. & The Sincennes McNaughton Line. M. Judgment confirming, 22 June 1876. Porion, C. J., Monli, Ramsay, Sanborn, Tessier JJ. Tessier J. dis. Eep. 9 Eev. Leg. 8. A contractor is liable in damages for vice du sol which renders his work de- fective. Bastien & Wilsnn. M. Judg- ment confirming, 16 March, 1877. Monk, Eamsay, Sanborn, Tessier JJ. A contractor may by his contract stipulate that he shall not be liable for the plan of the works he is to execute. Sl-Patrick's Hall Association & Gil- bert et al. M. Judgment confirming, 29 Jan. 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross JJ. Eep. 23 J. 1, I Leg. News 1J6. 9 Rev. Leg. 612. Conclusions for damages resulting from seduction may be taken by the luother, in an action en declaration de paterniU. Kitiyshorougli & Pound. Q. Judgment confirming, 5 March, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. The purchaser of a cargo of coal is liable in damages for the demurrage mcurred by the ship, owing to the pur' chasers not being ready to receive the coal, according to the rate at which it should be deliveied. Beard & Hart et al. M. Judgment confirming, 14 June, .1879. Sir A. A. Dorion, C. J., Monk, Kamsay, Tessier, Cross JJ. Bisk of calling One of the hands on board the steamer, whose duty it was to overlook the operation of trans- ferring goods to a passing steamer, fell over-board while this wa^ being done, and before help could reach him he was drowned. His widow, for herself and children, sued the company in damages, attributing fault, inasmuch as there was only one cable used to attach the steamer instead of two, and that the captain had not used the necessary diligence after the man fell into the water. Held, that there was no contributory negligence on part of the man (Paulet), that the operation was being performed in the ordinary wav and with reason- able care, that Paulet had special charge of the work, that therefore there was no fault on the part of the company Appellant, Paulet having lost his life owing to the ordinary risk ac- companying his calling. Richelieu Na- vigation Co. & St-Jean. M. Judgment reversing, 17 Dec. 1883. Sir A. A. Do- rion, C. J., Eamsay, Tessier, Cross, Baby JJ. Tessier J. dis. Where the damage results from an accident, without fault on either side, the lo-s is borne by the party who suffer* it ; and when the suffering party alone is in fault, thei loss is borne by him. So where a laborer employed in discharging railway iron through the ^ hutch of a vessel, by his imprudenoey and disregard of orders, caused the ' breaking of a chain which was suffi- ciently strong for the purpose for which it wa< used, it was held that the damage which he suffered mu-t be borne by himself alone. Desroches & Gauthier. M. Judgment reversing, 20 Nov. 1882. Sir A. A. Doiion, C. J., Monk, Eamsay, Tessier, Cros- J J. Tessier J. dis. Rep. 5 Leg. News 404. 3 Dec. d'A. 25. Contributorg negligence Beauprei . The Montreal Tow Boat Co. M. Judg- ment confirming, 2 March, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Ci'os^ JJ. The Corporation of Quebec having openei » hole in the street for certain repairs, or allowed it to be opened) is not responsible in damages to a person driving into the hole, which wns not protected and no light kept burning at night if the party was driving at th- rate of eight miles an hour. Gray & Mayor (fee of Quebec. Judgment confirming, 221 DAMAGES DAMAGES 222 5 June 1876. Doi-ion, C. J., Monk, Ram- say, Sanborn, Tessier JJ. Eamsay J. tlis. saiii that to make contiibutory negligence two things were necessary. Jst there must be negligence. 2nd the negligence must contribute to the ac- cident. He did not think that driving at eight miles an hour was negligence, and it was not proved nor rendered probable that Appellant's carriage falling into a hole made in the middle of the road, would have been less, had it been going at the rate of six miles an hour. Where a carter knowing the danger to Vfhich he exposes himself, goes on a wharf to load wood, and approaches too near to a vessel hnuling into the wharf, and the chain breaks and injures the carter, he cannot recover from the cap- tain of the vessel as he voluntarily ex- posed himself to dnnger. Periaux & Dompierre. M. Judgment reversing, 14 Dec. 1877. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross JJ. Tessier J. dis. Part of the highway under the charge of the trustees of the Montreal turn- pike works, was interrupted by works authorized by Statute to alter the Montreal water works, and the Corpo- ration of Montreal made a temporary road to keep up the communication of the turnpike road. This temporary communication was defective, and a cabman's horse and vehicle were in- jured there. Held, that the Turnpike Trust was liable for the damage. The Trustees of the Montreal Turnpike Roads & Daoust. M. Judgment con- firming, 21 Sept. 1878 Sir A. A. Dorion, C. J., Monk, Ramsiiy, Tessier, Cross JJ. Ramsay & Cross J J dis. Eep. 23 J. 175 9 Rev. Leg. 651. Where works for the construction of a railway, authorized by statute, pass- ing in the street of an incorporated town, injure the property of an indivi- dual, his action for damages- will iie against the railway company and not against the Municipal Corporation. Lambert & The Corporation of Three Rivers. Q. Judgment reversing, 5 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Tessier, J., dissenting. Rep. 10 Rev. Leg. 359. Also The Corporation of Three Rivers & Lessard, decided same day. Rep. 10 Rev. Leg. 441. An action will lie against a municipal corporation for the bad state of a road under its control owing to railway works carried on under a statute, and the contractor may be called in ae garant. McGreevy & The Corporation of Three Rivers. Q. Judgment confirm- ing, 8 Sept., 1881. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Ramsay, J. dissenting thought the corporation was not liable, as was held in the cases of Lambert & the Corpora- tion of Three Rivers, and Lessard against the same corporation, and that thereforefore there was nothing to garantir. Secondly, that if the con- tractor was acting under the statute, and within its powers, the railway com- pany antj. not he, was liable, unless the contractor had agreed to pay the dam- ages necessarily arising from the works, which did not appear to be the case. line compagnie de chemin de fer qui par ses travaux de terrassement, empeche I'eooulement des eaux d'une propriete que longe son chemin, sera responsable des dommages causf-s par I'eau a cette propriete. Grand Trunk Railway Co. & Landry. Q. Judgment conlirming, 8 May, 1882. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Baby, J J. Eep. 11 E. Leg. 590. The contractor is liable to the owner of a barge for damage done to it by striking against the public works he was constructing, although the line of the works was visible by the posts or piles used for its construction, because there were no buoys to indicate the proper channel to be followed. Moore et al. & Paquet. Q. Judgment confirm- ing, 4 Sep., 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Ramsay, J. thought the accident to the R--spon- dent's barge was due to his own negligence. He knew or ought to have known of these works, and the outline of the works was visible. It was not 223 i)AMAGr;s DAMAGES 224 the duty of the contractor to buoy out a new channel. The damages due to the creditor are in general the amount of the loss that he has sustained and of the profit of which he has been deprived, &c. Art. 1073 C. C. Evidence of how much grain a grist mill could grind is not a satisfactory measure of damages for the stopping of a mill, unless it be shown that there was grain to be, ground to employ the mill continually. Where damages of this sort are com- plained of, it will be considered unfa- vorable to Plaintiff, and expose the testimony he adduces to suspicion, if he refuses an examination of his pre- mises by a competent person of res- pectability, such as an engineer sent by defendant. DeBeaujeu & Beaudet. M. Judgment reversing, 15 June, 1S77. 8ir A. A. Dorion, C. J , Monk, Ramsay, Sanborn, Tessier, JJ. In an action of damages against a builder for want of skill in using a de- fective plan, the measure of damages is not what the Plaintiff paid for altering the bad plan to a better, but what he had paid for the faulty construction and what he had lost by it. Nordheimer & Beid et al. M. Judgment confirming, Sept., 1875. Dorion, C. J., Monk, Tas- chereau, Eamsay, Sanborn, JJ. The value of a deficiency in quantity of lands sold may be recovered by an action of damages, and the diminution of price allowed by Art. 1201 C. C. is only a measure of damages. Doidney & Bruy&re et al. Judgment reversing, 21 Dec, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Rep. 24 J. 17. The Appellant was condemned by the Superior Court to pay §18,333.45 damages. The case being taken to review, the judgment was confirmed, save as to the amount of damages, which was reduced to $13,500. This amount was further reduced by this Cour tto .1510,00(1, and on further appeal to the Privy Council the amount was still further reduced. Osborne & Atkin- son. Q. Judgment Q. B., 8 Sep., 1875. Dorion, 0. J., Monk, Ramsay, Sanborn, Caron, JJ. Where damages are sought for the inexecution of a contract, and no real and certain damages are proved, the Court may condemn the Defendant in default to pay exemplary damages. Girard '& Lepage. M. Judgment con- firming, December, 1874. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Where a right of action exists and the court of first instance .has allowed trifling damages, (in this case $12; although no actual damages were prov- ed, the Court of Appeals will confirm the judgment. The City of Montreal i: Workman. M. Judgment confirming, 21 Dec, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Routhier, JJ. Damages may be recovered for phj'- sical and mental suffering caused by a wound inflicted by defendant, when- there was only negligence. Pelletier 6: Bernier. Q. Judgment confirming, 6 March, 1877. Monk, Eamsay, Sanborn, Tessier, JJ. Monk, J. dis. Rep. 3 Q. L. E. 94, and 9 Rev. Leg. 338. The failure to pay money at the pro- per time can only give rise to tlie im- mediate and direct damages resulting therefrom, which are limited by law to the legal interest on the sum. Biit an obligation to give debentures bearing interest is not to be treated as a mere- obligation to pay money, and nominal damages may be allowed for default, without proof of actual damages. Tht Corporation of the County of Ottawa & The Montreal, Occidental Railway Co. M. Judgment confirming, 27 Nov. 1883. Sir A. A. Dorion, C. J., Eamsay,, Tessier, Cross, Baby, J J- The Chief Jus tice and Cross J. dis. Art. 1077 C. C. The measures of damages for a faulty plan is not what Plaintiff paid for alter- ing the bad plan to a better, but what he had paid for the faulty construction and what he had lost by it. Nordheimer 225 DAMAGES DAMAGES 226 & Beid et al. M. Judgment confirming, September, 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Sanborn, JJ. Where the legislature authorizes works in a public river, and a person navigating such river runs upon these works and suffers damage, he cannot claim damages from the persons to whom the right to make such works is conceded. But where the works to be made are to be such as will not obstruct the na- vigation, and in fact they do obstruct it, the concessionnaires will be liable. And this liability will not cease, al- though by the terms of the act the plan to the works was to be submitted to the Governor, and was actually so submitted and Sanctioned by him. The loss of the use of his vessel, damaged by the accident, during the spring of the year, in the absence of any evidence of want of diligence in repairing it, is a good measure of dam- ages. The Pierreville Steam Mill Go. & Martineau. M. Judgment confirm- ing, 21 Dec, 1875. Monk, Taschereau, Eamsay, Sanborn, Sicotte, JJ. Sicotte, J. dis. Rep. 20 J. 225. Excessive damages will be reduced by the Court of Appeal. Jolicceur & Voisard. M. Judgment reducing dam- ages, 3 Feb., 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. That excessive damages will be redu- ced, and where sufficient compensation has been tendered and refused, all subsequent costs will be against Plain- tiff. DeBeavjeu & Beaudet. M. Judg- ment reversing, 15 June, 1877. Dorion, C. J , Monk, Eamsay, Sanborn, Tes- sier, JJ. And where the Court of Eeview was modified, a judgment giving excessive damages for a trespass, the Court of Appeal will confirm the judgment in review. Mann & Macdonald. M. Judg- ment confirming, 15 May, 1879. Sir A. A. Dorion, C. J., Monk, Eamsay, Tes- sier, Cross, JJ. The Court of Appeal will reduce damages awarded by the Court of First Instance if they are excessive. So where a labouring man had a difficulty with a person to whom he had sold a load of wood, as to whether he was to be paid for it or the amount was to be set off against a debt he owed to the purchaser, and the vendor wished to carry off the wood which was still in Plaintiff's cart, but in Defendant's yard, and the purchaser wished to retain the wood and Plaintiff accidentally had the end of his finger crushed, it was held that $3,000 was an exorbitant amount of damages and that it should be I'eduoed to $600. Desilets & Gingras. Judgment reversing, 3 March, 1880. Sir A. A. Dorion. C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 10 Eev. Leg. 275. This case went to the Supreme Court, where the judgment in appeal was reversed and the original judg- ment was restored. The case has not been reported in the Supreme Court Eeports but from an allusion to it in another case of Levi & Eeed, 6 S. Ct. Eeps. 482, it is to be gathered that the Supreme Court thought that in reversing the judgment in the Q. B., they were following the precedent of the case of Lambkin & the South Eastern Eailway Company. But that case, whether well or iU judged, was a jury trial and consequent- ly any comparison with the case of i>egi- lets & Gingras merely gives rise to confusion. The Court of Appeal will not reverse a judgment for damages although the Court below may have sUghtly over- estimated the damages. Mondor & Quintal. M. Judgment confirming, 19 January, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Eep. 2 Dec. d'A. 175. Where the evidence is conflicting, the Court of Appeals will not disturb a judgment for damages, which perhaps are estimated a little higher than they should be. Bobillard & Ferguson. M. Judgment confirming, 16 June, 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. Eep. 8 Eev. Leg. 119. 221 DAMAGES The Court of Appeal will not reverse on a consideration of conflicting evi- dence. Lemelm & PoUras. Q. Judg- ment confirming. 3 March, 1881. Sir A. A. Dorion. C. .J., Monk, Eamsay, Cross, Baby, J.J. Where in an action of damages the court below has allowed excessive costs, this court, although confirming the judgment, will exercise its discretion as to the costs of appeal. Hogan et al. & Dorion. M. Judgment confirming, 28 April, 1882. Monk, Bamsay, Tessier, Cross, Baby, JJ. Eep. 2 Dec. d'A. 238. Where no precise time is fixed for the acceptance of an article sold, the purchaser will be obliged to receive it in a reasonable time. His refusing to receive it will be a breach of contract, entitling the vendor to re-sell it, and recover any loss he may sustain on such resale from the first purchaser. Larin & Cheepman. M. Judgment rever.»ing, 18 Sept., 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 1 Leg. News 458. Confirmed in Supreme Court. 4 S. C. Eep. 349. Where no special time for the execu- tion of an obligation is stipulated by the contract a reasonable time is un- derstood. But where no time is fixed for doing a certain thing, and it is stipulated that when that is done the party obliged to do it is to pay a cer- tain sum of money, an action demanding absolutely the payment of the sum of money will not be maintained till the party is put en demeure to fulfil his obligation. Beaudry et les Marguilliers deVCEuvre et Fahrique de Montreal. M. Judgment reversing, 15 June 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, .TJ. Eep. 3 Leg. News 218. Where a contract was not carried out to the letter, but in the failure to do so there was no fraud, the contractor will be entitled to receive the price of the work he has done, less what it will cost the employer to finish the work. Atkinson & Plamondon. Q. Judgment reforming, 8 Sept. 1881. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, .TJ. DAMAGES 228 Breach of contract. When a party complains of a failure to deliver hay sold to him, and it is established that subsequently he had bought hay from the same party at a higher price, without protest, and he has never put the vendor en demeure to deliver the hay, it will be presumed that he has acquiesced in the non-delivery, and his action of damages will be dismissed, Pr6fontaine & Brodeur. M. Judgment reversing, 18 Sept., 1878. Su' A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, J.J. Where a person went without leave on the propertyof another, mere threats of using violence is not such a wrong- doing as will sustain an action of damages. Cournoy & Laudon. Q. Judg- ment confirming, 8 oct., 1883. Sir A. A. Dorion, C. J., Eamsay, Tessier. Baby, JJ. Damages allowed for the failure to execute a contract to deliver four cases of phosphorous. Evans & Brousseau et al. M. Judgment confirming, 23 Sept. 1884. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. An action of damages will not lie against a party to a previous suit by his adversary for an alleged false affi- davit by which such party obtained a final judgment in his favour in the pre- vious suit, for it is res judicata. Bois- clair & Lalancette. M. Judgment re- ' versing, 15 February, 1881. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Eep. 5 Leg. News 266. 1 Dec. d'A. 289. " The debtor is liable only for the damages which have been foreseen, or might have been foreseen at the time of contracting the obligation, when his breach of it is not accompanied by fraud." Art. 1074 C. C. In the case even in which the inexe- cution of the obligation results from the fraud of the debtor, the damages comprise only that which is an imme- diate and direct consequence of its inexecution." Art. 1075 C. C. ., A party who seeks damages from » 229 DAMAGES DAMAGES 230 municipal corporation for injury to his houses from the bursting of a water- pipe on the overflow from the hydrant must show that the damage he has sustained is the direct and probable result of the overflow. L'Aeenir & the City of Montreal. M. Judgment ■confirming, 16 March, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, €ross, JJ. The Sheriff is not responsible in dam- ages towards a person indicted for felony by reason of the jury being ille- gally summoned, and the accused having been put to additional expense for his defence. Danois & Boss4. Q. Judgment confirming, 8 March, 1875. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. Damages are in some cases accorded by way of indemnity, as for an expro- priation, where defendant has exercised powers conceded to him under a special act, and which interferes with the rights of property of another, although there is no reservation of the I'ights of others in the special act. So it was held that a corporation is liable in damages for closing a street under statutory powers by which the Plaintift's property is directly and exceptionally injured, although the Statute gives no express recourse for damages. That at common law it is equivalent to an expropriation, and therefore that the right given to close the street is to be understood to be given subject to any special dam- ages occasioned to a proprietor. And further that the statute on which the street was closed formed only one of a number of statutes, all implying the principle of damage for such acts. Held, also that the civil courts had jurisdiction over the matter, notwith- standing that such matters might come before commissioners. The Mayor &c. of Montreal & Drummond. Judgment confirming, 20 June 1874. Taschereau, Ramsay, Sanborn, Mackay, Torrance JJ. Mackay & Torrance 3 J. dis. Rep. 18 J. 225. In the Privy Council this case was reversed on the ground that the civil Courts had no jurisdiction, although not pleaded. The judicial committee also expressed the opinion that where a statutory power is strictly followed, no damages can be recovered, no mat- ter what injury a proprietor suffers, unless there is a reserve for damages in the act. A railway company is liable for the damage caused by its works, although performed within the powers conferred on it by statute. La Corporation de Tingwich & The Grand Trunk Bail way Co. Q. 8 March 1877. Monk, Ram- fay, Sanborn, Tessier, JJ. Rep. 3 Q. L. R. Ill, 9 Rev. Leg. 346. Where the damage is continuous the action does not fall within art. 2261 C. C, unless there be a special plea to show the time when the damage ceased and that the period in question was more than two years previous to the institution of the action. Damages may be recovered against a corporation acting under and within the scope of statutory powers where a special damage is sustained. Grenier & The City of Montreal. M. Judgment reversing, 3 Feb. 1880. Sir A. A. Dorion C. J., Monk, Ramsay, Cross JJ. Rep. 3 Leg. News 51. The Corporation of the City of Mont- real lowered the roadway of Little St- James Street in the said city, so that the access to the property of the Plain- tiff' and others, who owned real estate on the line of the street, was inter- rupted. Held: — That an action lay against the Corporation by the persons ag- grieved, for the recovery of the dam- ages occasioned by the interference with their property. The statute (Que.) 27 and 28 Vict. C. 60, does not exclude such action of indemnity, but merely provides a mode of procedure. If the Corporation desires to have the compensation estimated by commissioners, it must move the 231 DAMAGES DAMAGES 232 Court to name them. If the Corpora- tion does not by preliminary plea ob- ject to the adoption of the ordinary form of action by the Plaintiff, it will be held to have acquiesced, and cannot raise the objection afterwards. In the present case no damages were proved beyond what had been com- pounded for by the Plaintiff. D. Mor- risson & The Mayor &c. of the City of Montreal. M. Judgment coniirming. 21 December, 1880. Monk, Eamsay, Baby, Doherty, Jette JJ. Bep. .'^l J. 1. 4 Leg. News 25, 1 Dec. d'A. 107. Action of damages against the Cor- poration of Montreal for failing to carry out the stipulation of a deed of cession, by which Plaintifis ceded to the said corporation, Defendant, the land of an unrecognized street, on condition that the said corporation should faire sans dSlai, de la diie lisiire de terre, une rue puhlique, sous le nam de la rue Lusignan, et devant tire ainsi nommSe d perpMuiii, macadamis6e, entretenue en aussi hon 4tat et condition que les autres rues publiques de la dite eiti. The Court made an interlocutory order to the effect that the Corporation should perform its part of the agree- ment within six months. Plaintiffs appealed, and the appeal was dismissed. Roy & The Corporation of Montreal. M. Judgment confirming, 27, January 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier JJ. A young woman took a passenger ticket on a railway from St-A. to St- J. at the latter place the " conductor " failed to notify her that the train had reached her stopping place. Imme- diately after the train started again, the passenger observed she was passing St-Johns, and threw herself out of the carriage and was injured. Her father sued the company in damages for these injuries. Held, reversing the judgment of the Court below, that the Company was only liable for the damages directly caused by the passenger being carried beyond St-J. (of which there was no evidence) but that the company was not liable for the damages resulting from her jumping off a train in motion. The fault was her own. It might have been otherwise had the passenger been invited to descend by an official of the company. Arts 1053, 1054, 1074, 1075, C. C. The Central Vermont Railway Co. & Lareau. M. Judgment reversing, 27 May, 1886. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby,. J J. 9 Leg. News 365. Held, incidentally, that under the law of this Province a father has an action of damages against the wrong- doer for the death of his child, caused by the fault of the Defendant. And it will be no answer to such action to say that the child was too young for his services to be of any value, and that he was only a source of expense to the parents at the time. Lord & La Com- pagnie du Chemin de Fer du Nord. Q. Judgment confirming, 5 February, 1886. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby JJ. Rep. 14 Eev. Leg. 297. Le proprietaire d'un quai, non ouvei't au public, n'est pas responsable, en dommages, de I'accident, meme mortel, cause a un enfant qui avait mis pied sur tel quai dont I'etat etait tres defeo- tueux. Lord & La Compagnie du Che- min de Fer du Nord. Q. Judgment confirming, 5 February, 1886. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby JJ. Eep. 14 Eev. Leg. 297. Damages for taking out a capias im- providently. The Plaintifi, a jeweller desiring to increase his business, ob- tained advances from respondent, a wholesale dealer, and gave as security an hypothec on his proprety, on which he declared there were mortgages, but he only specified one of a certain amount. There was really another. Shortly after Plaintiff became insolvent, and respondent arrested him on capias. The court confirming the judgment of the court below, that there was prob- able cause for the arrest, although it seems the Plaintiff did not intend fraudulently to conceal the mortgage. Grothg & Saunders. M. Judgment con- firming, 16 January 1886. Sir A. A. Dorion, C. J., Eamsay, Cross, Baby JJ' 233 DAllAGES DAMAGES 234 An employer is responsible for the damages suffered by an employee though the negligence or want of skill of a fellow employee. Following Ravary and G. T. R., 6 J., 49.) A direction to the jury that anguish of mind suffered for the loss of a hus- band may properly be taken into con- sideration by them in estimating the the damages which should be allowed to the widow, is not erroneous. Where a witness arrived after the evidence at the trial was closed, but before the jury were charged, the ex- clusion of his testimony was not in itself a sufficient ground for allowing a new trial ; but the Court will look to the relevancy and importance of the evi- dence which the witness was prepared to give, and where the affidavit of such witness is before the Court, and the testimony which he proposed to give does not appear to be relevant or material, a new trial will not be ordered on the ground that the evidence was excluded. The fact that one of the jury, in the course of the trial, put a question to a witness which appeared to indicate a leaning to the side of the plaintiff, and the further circumstance that the jury presented her with their own taxed feas after the verdict was rendered, are not such indications of bias or partiality as to constitute grounds for a new trial. Robinson & The Canadian Pacific Ry Co. M. Judgment reversing, 16 Jan. 1886. Sir A. A. Dorion, C. J., Eamsay, Cross, Baby, JJ. Rep. M. L. R. II, Q. B. 25. 9 Leg. News 85. 4 Dec. d'A. 297. Damages for wrongful imprisonment, An election of municipal councillors was held for the parish of Chateau- Richer, at which the Mayor (Appellant) presided, at the opening of the pro- ceedings the president announced his intention to proceed with severity if there was any disturbance. Upon this high-words followed and threats of a very objectionable character were used. Thereupon the mayor secretly ordered the secretary to prepare warrants of arrest directed against the respondent and five others. These warrants were not executed till next day, when the warrants turned out to be for the com- mitment on conviction of each of the parties to gaol for ten days. Respondent was imprisoned and only released on Habeas corpus. He then sued appe- lant in damages. The defence in sub- stance was that the appellant was act- ing in good faith, that the articles of the municipal code were obscure, and that he was not to be punished for an error in judgment. The articles of the M. C. relied, upon by appellant are 300 and 301. They are in these terms : 300. " The person presiding at an election of councillors is a keeper of' the peace from eight o'clock in the morning of the day on which the meet- ing of municipal electors is held, until nine o'clock in the morning of the day which follows the close of the election. He possesses in this respect all the powers of justices of the peace, and may exercise them throughout the whole municipality." 301. "The presiding officer at the election may moreover, for the purpose of preserving peace and public order : lo. " Swear in as many special cons- tables as he deems necessary ; 2o. " Require the assistance of aU justices of the peace, constables, or other persons residing in the munici- pality, by verbal or written order ; 3o. " Commit on view to the custody of a constable or of any other person, for a period of not more than forty-eight hours, any one breaking the peace or disturbing public order ; 4o. " By a warrant under his hand imprison such offender in the common gaol of the district, or in any house or other place of confinement established within the limits of the county muni- cipality, for any period not exceeding ten days." The court held that the imprison- ment was wholly illegal. The powers of a justice of the peace in no case per- mitting the conviction of any person 235 DAMAGES DAMAGES 236 without trial. Commitment on view any one troubling the peace for a short period, is not the power the president pretends to have exercised. It was evidently under the 4th ss. of Art. 301 M. C., he pretented to act. That dis- position of the law is evidently to be read with art. 300, and could not be interpreted to mean that the president could secretly, and without a conviction, place a, lettre de cachet of this sort in the hands of a bailiff to be executed almost at the moment the temporary functions of the president ceased. The majority of the court thinks this con- stitutes malice, as no one in this country can be presumed not to know that a person cannot be punished without a hearing. It is an elementary principle of justice. Cloutier & Tr4pannier. Q. Judgment confirming, 7 October, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. The Chief Justice and Monk, J., dissenting. Rep. 9 Leg. Xews 347. 14 Rev. Leg. 670. A Line of railway running alongside of a street, and not divided by any fence from the street, is not a road on which foot passengers using it are en- titled to the same protection as if they were walking on an ordinary highway. And so it was held that a person who was injured by falling over some planks lying on the track had no action against the company. Faucher & The North Shore Ry Co. Q. Judgment confirming, 5 February, 1886. Monk, Ramsay, Tes- sier, Cross, Baby, J J. Tessier, J., dis- senting. Rep. 9 Leg. News 75. Damages for arrest on a criminal charge on the ground that the magist- rate who issued the warrant had no jurisdiction, the act complained of being out of his jurisdiction, that the complaint was malicious and without probable cause. Ileld, reversing the decision of the Court below that the absence of jurisdiction owing to error on the part of the magistrate does not of itself make him, or the complainant liable in damages, and that in this case there was no malice, and there was not absence of probable cause. Copeland & Leclerc. M. Judgment re- versing, 25 January, 1886. Monk, Ram- say, Tessier, Cross, Baby, JJ. Tessier & Cross, JJ. diss. A married woman, authorized by her husband, can bring an action of dam- ages in her own name for personal wrongs. Bme Sarah Ann Waldon et vir. & Bme Maria White et vir. Judg- ment confirming, 30 .June, 1 886. Monk, Ramtay, Tessier, Cross, Baby JJ. A railway company employed a num- ber of labourers to work at the cons- truction of the line of road, and pro- mised them transport to the place where they were to work. At a certaitf point the labourers were ordered to go on to a construction train. There were no carriages tor their accommodation, but soiiie trucks more or less encum- bered with material. The greater num- ber got on to a truck loaded with lum- her, on which they were suffered to depart. Shortly afterwards a prop in- tended to keep the lumber in its place broke, and many of the labourers were precipitated to the ground and injured. Held, that the company was liable in damages. The Canadian Pacific R. R. & Paquette. M. Judgment confirming, 30 June, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Ross, Baby, JJ. La compagnie intimee a laisse ouvert pendant la nuit le passage qui conduit de son quai et ponton a son bateau- passeur. Le mari de I'Appelante,. croyant mettre le pied sur le bateau;) passeur qui, etant en retard, ne se trouvait pas a son poste, s'esT; precipit^ dans le fleuve St. Laurent par I'ouver- ture restee ouverte a I'extremite de ce passage, et s'est noye. Dela action en dommage de la part de I'appelante qui a pretendu que ce passage aurait du etre ferme et le quai mieux eclaire. L'Intimee a plaide qu'elle y avait place le nombre de lumieres exigees par les reglements de la cite de Quebec. Jug£: — lo. Que lors meme que I'in- timee se serait conformee aux regle- ments en question, cela ne I'a pas ex- empte d'observer les mesures, que la simple prudence commando, pour pro- teger la vie de ceux qu'elle appellea. 237 liAMAGES DAJIAGES '138 se servir moyennant remuneration de ce bateau-passeur, de jour et de nuit ; 2o. Que I'intimee s'est rendu coupa- ble de negligence grossiere. Boulanger & The Grand Trunk R. R. Co. Q. Judg- ment reversing, 5 October, 1885. Monk, Eamsay, Cross, Baby, JJ. Rep. 11 Q. L. R. 254. 14 Rev. Leg- 321. NoTA Tessier, J., present a I'audi- tion mais absent lorsque le jugement a ete prononce, a donne son concours au jugement. Lorsqu'il est convenu qu'une partie donnera a I'autre partie une des trois sections de sa rade, pour I'oocupation d'un navire appartenant a cette der- niere, I'occupation de partie d'une autre section donne au locateur de telle rade le droit a une indemnite pro- portionnee a la perte qu'il a subie par suite de cet excedant d'occupation. Allan et al. & Hall. Q. Judgment confirming, 5 October, 1885. Monk, Ramsay, Cross, Baby, JJ. Rep. 14 Rev. Leg. 428. Where there is a right of action for a trifling assault, and where no material damage is done, and the plaintiffrefuses all settlement and begins and then abandons a prosecution before a ma- gistrate, in order to bring an action of damages, the court will reduce damages which have no reasonable measure, to such a sum as would be imposed as a fine by a magistrate. Papineau & Tdber et al. M. Judgment modified, 30 Dember, 1 885. Monk. Ramsay, Tes- sier, Cross, Baby, JJ. Rep. M. L. R. II. Q. B. 107. An employer is liable for any want of care on his part by which his servant is injured; and, therefore, if he engages an unskilled or careless person to con- duct his work, and owing to the want of skill or care of the person so em- ployed, another workman is injured, the employer is responsible. But in or- der to hold the employer responsible, it must be clearly established that the negligence or want of skill of the fellow workman caused the accident by which the damage was occasioned. So, where two workmen were engaged in an ope- ration not shown to be hasardous, and an explosion occurred which killed the superior workman and injured the plain- tift who was assisting the other, it was held that the workman injured had no right of compensation from the em- ployer, in the absence of any evidence as to the cause of the accident, or that the employer was in fault by having hired a careless or unskilful workman. The St. Lawrance Sugar Refining Company & Campbell. M. Judgment reversing, 21 March, 1885. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. M. L. R. I. Q. B. 290. 4 Dec. d'A. 186. The defendants were constructing a building in the City of Montreal, and at their solicitation, men (of whom the plaintiff was one) were sent by the cor- poration to introduce water from the street by ^ pipe connecting with the building. This could not be done with- out working inside as well as ontside. A man passing along the wall, above where the Plaintiff was working at the pipe hole, loosened and started a brick in the wall, and the brick, falling down, injured the Plaintiff. A hammer had fallen p^'eviously and warning had been given to the men above. Held : — That the burden of proof was on the Defendants to rebut the presumption of negligence, and this not having been done, the defendants were liable. Evans & Monette. M. Judgment confirming, 27 January, 1886. Sir A. A. Dorion, C. J., Ramsay, Tessiei', Cross, Baby JJ. Ramsay, Cross, JJ. dis- senting. Rep. M. L. R. 2 Q. B. 243. 9 Leg. News 366. Lorsqu'un chemin est en aussi bon etat qu'il est possible de le maintenir, a raison de la saison et du voiturage qui s'y fait, et qu'il parait meme meil- leur que les autres chemin<, et meil- leur qu'il n'avait ete les annees prece^ dentes, la corporation ne sera pas res- ponsable des dommages souSerts et causes par le mauvais etat de ce chemin. Beaucage & La Corp. de la Paroisse de Deschamhault. Q. Judgment confirm- ing, 8 October, 1886. Sir A. A. Dorion, 239 DEBENTURES C. J., Eamsay, Tessier, Cross, Baby, JJ. Su- A. A. Dorion, C. J., Ramsay, J. diss. Eep. 14 Eev. Leg. 655. M., the husband of plaintiff, was em- ployed by the defendant, master of a steamship, to assist in unmooring the steamship then lying at the wharf at Montreal, and about to put to sea. While M. was standing ready to oast off the stern hawser from the post at which it was fastened, the hawser snapped, and M. was fatally injured. Meld: — That the presumption was that the rope was insufficient for the purpose for which it was being used, or that the ship was unskilfully handled, and in either case, the master of the ship was responsible. Corner & Byrd. M. Judgment confirming, 27 January, 1886. Sir A. A. Dorion. C. J., Monk, Ramsay, Cross, Baby, JJ. Ramsay Lross, JJ., diss: Rep. 9, Leg. News 374. An employer is responsible for inju- ries to his employees resulting from defects in the tackle, machinery or appliances provided for their use. Tackle used in work such as loading or unloading a vessel ought to be amply sufficient to withstand any strain that is likely to be put upon it by ordinary unskilled laborers ; and where tackle breaks, without any extraordinary strain upon it, it will be presumed to be in- sufficient, though it may have been used previously for the same purpose without accident. A laborer engaged in work such as loading or unloading a vessel is only bound to use ordinary care, and the employer is not relieved from respon- sibility by showing that if the laborer had used the greatest skill and care the accident might not have happened- Ross & Langlois. M. Judgment con- firming, 21 Jannary, 1885, Sir A. A. Doiion, C. J., Ramsay, Tessiei', Cross, Baby, JJ. Rep. M. L. R., 1. Q. B. 280, 4 Dec, d'A. 187. DEBENTURES.— The railway of an in- corporated company may be sold in execution of a judgment in favour of a creditor suing on a debenture in a sta- DEBENTURES 240 tuory form hypothecating the railway to secure the payment of the deben- ture. The Corporation of the County of Drummond & The South Eastern Railway Company. M. Judgment re- versing, 20 Dec. 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross JJ. Tessier J. dis. Rep. 24 J. 276, 3 Leg. News 2. A debenture of a Municipal Corpora- tion in the hands of a bona fide holder, good on the face of it, and made within the limits of the powers of the Corpora- tion cannot be questioned by the Cor- poration for irregularities in its issue. An error in the date of such deben- ture is not a cause of nullity. The power to issue debentures for $500 implies the power to make de- bentures of $100. The Corporation of The Township of Roxton & The East- ern Townships Bank. M. Judgment confirming, 28 November, 1882. A debenture is a negotiable instru- ment, and cannot bear a condition on the face of it, making its vaUdity de- pendent upon obligations to be per- formed in future. And so, where a municipal corporation voted a bonus to a railway company payable in de- bentures, and the by-law imposed cer- tain future obligations upon the com- pany as to the mode of operating the road, it was held, that debentures in which these obligations were set forth as conditions were not a valid tender. MacFarlane & The Corporation of the Parish of StC£saire. M. Judgment reversing, 27 March, 1886. Monk, Eam- say, Tessier, Cross, Baby, JJ. Baby J. dissenting. Rep. M. L. R. II. Q. B. 160, 9 Leg. News 202. Debentures are not money, and conse- quently damages for the faUure to give debentures at the time agreed upon are not limited by the Art. 1077 C. C. which is as follows: The damages resulting from delay in the payment of money to which the debtor is liable consist only of interest at the rate legally agreed upon by the parties ; or in the absence of such agreement at the rate fixed by 241 DELAISSEMENT DELEGATION 242 law. These damages are due without the creditor being obliged to prove any loss. They are due from the day of the default only, except in the cases where by law they are due from the nature of the obligation. This article does not affect the special rules applicable to bills of exchange and contracts of sure- tyship. The Corporation of the County of Ottawa & The Montreal, Ottawa and Occidental Railway Co. M. Judgment confirming, 27th November, 1883. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, J J. The Chief Justice and Cross dis. Debenture alternative, v. Pkooedueb. DECISORY OATH.— 1247. 1248, 1249, 1250, 1251, 1252, 1253 C. C. 443, 444, 445, 446, 447 C. C. P. v. Evidence — Possessory action. Declinatory exception, v. Pkocedurb. DECRET. Is the ordinance of a judge or court — decree, coloquially used for the sale under a d£cret d'adjudica- tton. V. Sale. DEED. Evidence of fraud in. v. Fair & Dolan. Rep. 2 Leg. News 395. DEFAUT DE CONTENANCE.— «. Sale. DEFENSE D'ALIENER.— The defense d'ali^ner in a purely onerous contract is null. Fraser et al. & Fouliot. Q. Judgment confirming, 8 March 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross JJ. Ramsay & Cross JJ. dis. they being of opinion that the con- tract was not purely onerous. Con- firmed in Supreme Court, 12 Dec. 1879, 4 S. C. Rep. 515. DELAISSEMENT.— In maritime law abandonment to the insurer,— other- wise abandonment to avoid personal responsibility on hypothecary action. V. abandonment. An hypothecary or privileged creditor who buys in lands sold for taxes, and who within two years is re-imbursed by the owner, may while he remains in possession of the lands bring his hypo- thecary action against the owner, calling upon him to delaisser the lands, such creditor's possession being only pr^caire anid not that of a proprietor as regards the real owner. Corrigan & Ross. Q. Judgment confirming, 5 June, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Delay when no time is fixed v. Demeure. Note. — " Reasonable time shall be adjudged by the discretion of the jus- tices before whom the cause dependeth. Inst. 566. DELAYS OF PROCEDURE.-^?). Peooe- DURB. DELEGATION. — Is perfect or imper- fect, 1173 C. C. (1) Indication of pay- ment, 1174 C.C. (2i A perfect delegation operates novation, 1172, 1175 C. C. A simple indication of payment or the delegation of a new debtor, creates no lien de droit between him and the indicated creditor, so long as the latter has not accepted the party delegated. The acceptance' need not be express, except as regards third parties, but may be inferred from circumstances. Registration by the parties is not equivalent to an acceptance of the delegation. La Soci4t4 Permanente de Construction Jacques- Car tier & Robin- son. M. Judgment confirming, 19 Nov. 1880. Sir A. A. Dorion, C. J., Monk, Cross, Baby, JJ. Rep. 1 Dec. d'A. 32. 4 Leg. News 38. (1) The delegation by which a debtor gives to hia creditor a new debtor who obliges nim- self towards the creditor, does not affect nova- tion unless it is evident that the creditor intends to discharge the debtor who makes the delegation. (2) The simple indication by the debtor of a person who is to pay in his place or the simple indication by the creditor of a person who is to receive in his place, or the transfer of a debt with or without the acceptance of the debtor, does not affect novation. 243 DEMAND DEMEURE 244 Delegation until it is accepted does not bind the parties delegants, it only operates as an indication de paiement. Beeves & Darling. M. Judgment con- finning, 19 Nov. 1883. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. DELIBERE. — v. Procedure. DELIT V. Damages. DELIVERY TO CARRIER. — Delivery to a carrier for a purchaser, does npt, under our system, prevent the purcha- ser from refusing to receive and pay for the goods. Huston & Baile. Q. Judgment reversing, 4 March, 1875. Dorion, C. J., Monk, Ramsay, Sanborn, Plamondon, JJ. DELIVERY. — V. Commencement db PKEUVE PAR ECRIT. DEMAND. — When an obligation fixes no place of payment, a demand should be made at the domicile of the debtor before suing, and if this be not done and the Defendant pays with his plea, he will not be liable for costs. Godrique & Grondin. M. Judgment confirming, 5 Dec, 1874. Dorion, C. J., Monk, Tas- chereau, Ramsay, Sanborn, JJ. Rep. 6 Rev. Leg. 643. An action was taken on a note en 6re!)ei payable on demand at defendant's house, without any previous demand. The defendant tendered the amount confessed judgment without interest or costs. Held, that, the tender was suffi- cient. Dorion & Benoit. M. Judg- ment reversing, 15 May, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, J J. Rep. 2 Leg. News 171. The demand of payment should be made by the creditor at the domicile of the debtor, in absence of any special stipulation. (1152) C.C.) (1| Beaudry & (1) Payment must be made in the place expressly or impliedly indicated by the obligation. If no place be so indicated the payment, when it is of a certain specified thing , must be made at the place where the thing was at the time of contracting the obligation. In aU other oases payment must be made at the domicile of the debtor subject neverthe- Barbeau. M. Judgment confirming, 15 February, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Reported 1 Dec. d'A. 268. DEMEURE. — Where no special time for the execution of an obligation is stipulated by the contract, a reason- able time is understood. But where no time is fixed for doing a certain thing and it is also stipulated that when that is done the party obhged to do it is to pay a certain sum of money, an action demanding absolutely the payment of the sum of money will not be maintained till the party is put en demeure to fulfil his obligation. Beau- dry & Les Marguillers de PQSavre e( Fabrique de Montreal, M. Judgment reversing 15 June, 1880. Sir A. A. Do- rion, C. J., Monk, Ramsay, Cross, JJ. Rep. 3 Leg. News 2 1 8. There was a promise of sale to the effect that the price was $1200.00 of which $500.00 was acknowledged to have been received in cash at the passing of the agreement, and the balance of $700.00 was to be paid in seven equal annual instalments. The respondent was then a minor, but he was assisted, for the purposes of the agreement, by his father, who was present and who promised to procure a ratification of the agreement by his son when he should come of age. EM that the respondent, not being put « demeure, did not forfeit his right to obtain a deed of sale by his failure to make the yearly payments agreed upon, or by his failure to ratify. Grange & McLennan, M. Judgment confirm- ing 27 January, 1 883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Baby, JJ. Sir A, A. Dorion, C. J., dissenting. Note; — ^This case was appealed to the Supreme Court where it was held; Reversing the judgment of the Court below (Strong & Taschereau, -JJ., dis- senting,) that the condition precedent on which the promise of sale was made, not having been complied with within the time specified in the con- tract, the contract and the law placed less to the rules provided under the title re- lating to particular contracts. 245 DEMOLITION DE NOUVEL CEUVRE DEMURREE 246 the plaintiff en demeure, and there was no necessity for any demand, the necessity for a demand being incon- sistent with the terms of the con- tract, which immediately on the failure of the performance of the condition ipso facto changed the relation of the parties from vendor and vendee to lessor and lessee. 9 S. C. Rep. 385. But see arts. 1067-8-9 C. C. (1) v. Eemeee. DEMOLITION DE NOUVEL (EUVRE.— The action en demolition de nouvel osuvre lies against the owner of land on a lower level of a stream, who has built a dam so as to obstruct the flow from a higher level, and thus weaken the power which has been previously used by the owner of the upper level to propel his machinery. The fact that the work complained of has been completed does not effect the right of action for its demolition. The Statute Consol. Stat. L. C, cap. 51, which provides that proprietors of lands may improve water courses adjoining them, and may erect dams, etc., but shall pay damages, to be ascertained by experts, which result from such works to others, does not apply to the case where the owner of the upper level already has works in operation, and dbes not deprive him of the action en demolition. Frechette & La Compagnie Manufacturi&re de Si- Hyacinthe, M. Judgment confirming 23 Sep., 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Ram- say, J., dissented on the merits, but (1) The debtor may be put in default either by the terms of the contract, when it contains a stipulation that the mere lapse of time for performing it shall have that effect, or by the sole operation of law, or by tlie commencement of a suit, or a demand which must be in writing unless the contract itself is verbal. 1067 C. G. The debtor is also in default when the thing which he has obliged himself to give or to do could only have been given or done within a certain time, which he has allowed to expire. 1068 CO., In all contracts oi a commercial nature in which the time of performance is fixed the debtor is put in default by the mere lapse of such time. 1069 0. C. not on all the points noted above- He was of opinion that the act referred to merely transferred to the riparian pro- prietors the rights which had belonged to the Seignior and which had devolved to the crown. In the Privy Council the judgment was reversed on the merits. Rep. 5 Leg. News 187. 1 Dec. d'A. 378. DEMOLITION v. Mitoybn wall. DEMURRAGE v. Shipping cases. DEMURRER An appeal may be allowed, in the discretion of the Court, when pleas are dismissed on demurrer. Hall & Atkinson.. Q. Judgment, 4 March 1875. Dorion, C. J., Monk, Ram- say, Sanborn, Tessier JJ. Harrisson & Damee dii SacreCoeur. M. Judgment, September 1875. Dorion C. J., Monk, Taschereau, Ramsay, Sanborn JJ. Fa- caud & Nadeau. Judgment, 7 Dec. 1875. Dorion C. J., Monk, Taschereau, Ramsay, Sanborn JJ. Leave to appeal will not generally be given from an interlocutory judgmeni? dismissing a demurrer. McGreevy & Normand. Q. Judgment, 4 Dec. 1875. Dorion, C. J., Monk, Ramsay, Sanborn, JJ. The failure by a usufructuary to allege that she had made an inventory cannot be raised by demurrer to an hypothecary action brought by her against a detenteur aciuel of property hypothecated for security of money subject to her enjoyment. Parties in- tervening as claiming the property sub- ject to the usufruct cannot demur on this ground. Nelson ei al. & Harrison. M. Judgment confirming, Sep. J 876. Dorion, C. J., Ramsay, Sanborn. Tessier JJ. A party may demur to a portion of a plea ; but if there be an allegation forming a good answer to the demand in the portion of the plea demurred to, the demurrer will be dismissed. Feed & Beaudetetal. Q. Judgment reversing, 4 Sep. 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross JJ . A demurrer to the whole of a plea 247 DEPOSIT good in part, will be rejected. Desro- siers & Hutchins. M. Judgment revers- ing, 21 Sep. 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross JJ. An action to set aside a judgment on •the ground of fraud without alleging any special grounds, will be dismissed on demurrer. Barbin & Langlois. Q. Judgment confirming, 8 Sep. 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, McCord, JJ. v. Peooeduee. An action of damages, complaining that the respondent unlawfully tore down his fences in constructing a road, which was to be a front road of certain certain lots of land described in the declaration (such description not in- cluding the Appellant's lot), is not demurrable. Whitman & The Corpo- ration of Stanhridge. M. Judgment reversing, 18 September, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 23 J. 176. 1 Leg. News 475. 9 Rev. Leg. 652. DEPLACEMENT.— t;. Sale. DEPOSITAIRE.— Where an auctioneer is made dipositaire of a sum of money, as security that the purchaser will take a title of a lot of land purchased by him at auction, the purchaser cannot sue the auctioneer to recover back the depot, without putting the principal en cause, and establishing that the failure to tike the deed was owing to the fault of the vendor. Murray & Arnton. M. Judgment confirming, 21st December, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. DEPOSIT IN BANK.— Where monies have been deposited from time to time in a bank to the credit of A., of whom the Bank was creditor to an amount far exceeding the balance of such de- posits, and on the understanding that such deposits were to enure to the benefit of the creditors of A. generally, B. and others cannot legally sue the bank to recover a proportion of such deposits, on the ground that a portion of said monies really belonged to B. and others, in the absence of any notice to, or knowledge by the bank of the exis- DESISTEMENT 248 tence of any such right on the part of B. and others, whilst such deposits were being made. La Banque Jacques-Car- tier & Giraldi. M. Judgment reversing, 12 March, 1882. Monk, Ramsay, Tes- sier, Cross, Baby, J J. Rep. 26 J. 116. Tessier, J. diss. Confirmed in Supreme Court. 9 S. C. Rep. 598. DEPUTY PROTHONOTARY.— The De- puty Prothonotary may receive and ho- mologate the advice of a family council convened for the purpose of authorising minors to accept a succession, and may give the requisite authorisation. Out- ting & Jordan. M. Judgment confirm- ing, February, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Belanger, JJ. Rep. 19 J. 139. DESAVEU. — Attornies who have only continued the suit in order to secure their own costs, cannot be disavowed by the Plaintiff. See also Montrait A Williams, p. 1 J& supra. Ed. Gagnon et vir. & Loranger et at. M. Judgment confirming, 28 Nov., 1882. Sir A. A. Dorion, C. J., Ramsay, Cross, Baby, JJ. The d^saveu by Defendant of the attorney of record who appeared for him does not stop execution, without an order of a judge. Dawson, & Mae- donald et al. Q. Judgment confirioing, 5 Oct., 1883. Sir A. A. Doripn, C. J., Ramsay, Tessier, Cross, Baby, JJ. Note ^There was another case be- tween the same parties involving a question similar in principle — the only difference being that in the other case there was a second seizure. DESISTEMENT.— " A party may, at any time before judgment, discontinue his suit or proceeding on payment of costs." 456 C. C. P. " Discontinuance in appeal is effected in the same manner and under the same conditions as in the Superior Court." 1167 C. C. P. Upon a d4sistement of the judgment without a tender of costs, the Court of Appeals will condemn the Respondent in the costs of both courts. Bellay & Guay. Q. Judgment, Dec, 1874. Do- 249 DISCUSSION DITCH 250 rion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Rep. 4 Q. L. R. 91, DETENTEUR ACTUEL.— An hypothe- cary creditor has a right to an action era declaration d'hypoth&que against the vendee of the property hypothecated, even though such vendee may have re- sold the property if such sale be not registered. Where the vendee proves a re-sale, not registered, and that he is no longer rf(?- tenteur he will be condemned to costs up to plea filed. The Plaintiff on proof of such plea may call in the person to whom the land is said to be re-sold and obtain judgment against him. Lalonde & I/ynch. M. Judgment reversing, 18 February, 1875. Monli, Taschereau, Ramsay, Sanborn, Sicotte, JJ. Ramsay, Sanborn, JJ., dis. Rep. 20 J. 158. DISCHARGE The discharge of a debtor personally and hypothecarily Uable for a debt does not discharge the hypothec. Befordetal,& les eccl6siasti- ques du S4m,inaire de Montreal. M. Judg- ment confirming, 24 Nov., 1882. Monk, Ramsay, Tessier, Cross, Baby, JJ. Ram- say, J., dis. Rep. 4 Leg. News 27. 3 Dec. d'A. 1. DILATORY PLEA.— The directors of a company incorporated under cap. 63 C. S. C. (1) may be sued with the company for a debt due to Plaintiff, if they have neglected to make the return required by the 13 Section of the 13 and 14 Vic. c. 28. (2) The Eunterston Lumber Com- pany & Ward. Q. Judgment confirming 7 Sep. 1874. Monk, Taschereau, Ram- say, Sanborn, JJ. v. Pbocbdueb. DISCUSSION.— A party who becomes security for another, under the condi- tion that he will not be responsible either for capital or interest, or for a,ny costs whatever till after the discussion of certain advantages, cannot be called on to furnish the costs of such discus- sion beforehand. Bichard & Martel. Q. (1) General Joint Stock Co.'s Act. (2) With regard to the reports of directors. Judgment reversing, 8 March, 1875. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. DISSENTIENTS.— The School Com- missioners representing the majority cannot after dissent collect taxes from the dissentients for school purposes. Duncan & The School Commissioners of St. Germain in Grantham. Q. Judgment reversing, 5 June, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Verbal testimony is admissible to prove the status of a dissentient, and that a dissentient status had existed de facto. School Commissioners of the Municipality of the Township of Box- ton and Boston et al. M. Judgment confirming, 17 Dec, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 24 J. 122, 3 Leg. News 20. See EnquHe. DISTRIBUTION v. Insolvent Act. Craig & Hagan, M. Judgment con- firming, 22 June, 1877. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. V. Pboobdueb, Report of. DisTEiOT Maoistratbs were establish- ed by the act 32 Vict., c. 23. v. Muni- cipal CCDB DITCH A boundary ditch between two proprietors ifossi de ligne) is not a water-course in the sense of art- icle 867 (1| and following articles of the Municipal Code. Such articles are provided for by article 420 and following articles of the M. Code. (2) (1) All water courses di-aining several pieces of land, with the exception of boundary oitohes which drain only the two properties between which they are situated, and of road ditches are regulated according to the provi- sions of this title. (2) The road inspector, upon the written or verbal application of any owner or occupant who demands the opening up of a boundary ditch between his land and that of his neigh- bor, must visit the looahty of the proposed boundaiy ditch, where after an examination of the place, and a hearing of the parties interested who have received three days special notice thereof, he orders the performance of any work he deems necessary and determines how and by whom they must be executed. 251 DONATION DONATION 252 Basious & Nolan. Q. Judgment con- firming, 8 March, 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Sanborn, JJ. DIVISION OF DEBT.— The prohibition of the second alinea of Art. 15 C. C. P., does not prohibit the division of a debt but prohibits its division for the purpose of suing for the several portion of it by- different actions. TStu & Oarneau et at. Judgment reversing, 5 June, 1875. Dorion, C. J., Monk, Ramsay, Sanborn, .J J. Sanborn, J., dis. Eep. 1. Q. L. E. 355, DOMICILE. — The parties were married in the State of New- York, without an- tenuptial contract, and their matrimo- nial domicile was in that State, but the husband afterwards changed his domi- cile to the province of Quebec. After this change of domicile the wife ob- tained a divorce in the Supreme Court of New York State, the husband appear- ing in the suit, and not contesting. Held, (reversing judgment of Torrance, J.,) that divorce not being recognized by the law of the Province of Quebec, which was the domicile of husband and wife, the decree obtained by the latter in New York had no binding effect in Quebec, and notwithstanding such de- cree the parties were still husband and wife ; and therefore, the wife could not bring an action against her husband for an account without being authoriz- ed. Fiak & Stevens. M. Judgment reversing, 19 Sep., 1883. Eep. 6 Leg. News, 329. Eeversed in the Supreme Court. S. C. Eep. DONATION.— Mathewson the elder was a partner of Geo. Childs & Co. The accounts being made up when M. was about to withdraw from the firm, $29,000 stood to the credit of M. He was desirous that his son should enter the firm of &. C. & Co., and he gave him, or purported to give him his share in the business of Geo. C. & Co. There was a condition that M. the son was to pay M. the father 7 per cent on $29,000. Later a relative Paton, was admitted partner in Geo. C. & Co.'s business, he agreeing to pay half the interest. M. the elder then entered the firm of Smyth & Edmunson, which shortly after became insolvent. The assignee of tj. & E. then claimed the $29,000 in the hands of G. C. & Co., as being the property of M. the elder, or at all events the annuity, equal to interest reserved by M. the elder. The Court below held, the assignee was entitled to neither, and this judgment was confirmed in appeal. Brown & Mathewson. M. Judg- ment confirming, Sep., 1875. Tasche- reau, Eamsay, Sanborn, Loranger, Be- langer, JJ. Eamsay, J. dis., was of opinion that the whole transaction was simulated, that it was only a loan of the money to M. the younger, and later to his relative Paton, as the whole cir- cumstances showed (stipulation of in- terest and subsequent change to Paton of one half on the same conditions as to the son, and abandonment by the son, strange if it was a gift originally to the son) and that in any case the cre- ditors of the insolvent M. the elder were entitled to the interest he had reserved. A testament which ratifies a donation entre vifs, ratifies it as a donation, and the testament adds nothing to the donation. Morency & Morency. Q. Judgment confirming, 5 June, 1876. Dorion, C. J., Monk, Eamsay, Sanborn, JJ. Eep. 8. Eev. Leg. 634. Under the law existing prior to the promulgation of the code, a donation could not be revoked pour cause de survenance d'enfants unless the dona- tion was of a notable portion of the fortune of the donor. The wealth of the donor and the posi- tion of the parties will be considered in deciding the question. Cuvillur et al., & Symes et al. M. Judgment re- versing, 22 June, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Sir A. A. Dorion, C. J. & Cross, J. dis. 1 Leg. News 30. Confirmed in Privy Council. A donor who registers his deed of donation preserves his hypothec for all charges appreciable in money sti- pulated in his favour, without it being 253 IH)NATIf)N DOWER 254 necessary to fix by the deed, the value of these charges. And that a donation gives the same hypothec towards a third party, in whose favour the charges are stipulated. Dufresne & Duhord. Q. Judgment confirming, 7 Dec. 1877. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier Cross, JJ. Rep. 4 Q. L. R. 59. 1 Leg. News 42. Le donataire dans une donation, meme gratuite, faite par un ascendant a son heritier presomptif n'est qu'un ayant cause a titre particulier et qu'il pent invoquer a I'encontre d'une action petitoire des moyens d'exception, dont ne pourrait se prevaloir le donateur lui-meme. Lucien Lemien,fils de Moise & LabonU. M. Judgment reversing, 16 Dec. 1881. Monlt, Ramsay, Tessier^ Gross, Baby, JJ. Tessier, J. dis. Rep, 2 Dec. d'A. 94. The gift of immoveable property by a father to his daughter and his son-in- law jointly is deemed to be a gift to the daughter alone Art. 1276 C. C. (1) And so where a judgment against the son-in- law is registered against the property so given there is no hypothec, the title not being in the son. The Si Ann Mutual Boy So. & Watson ei al. M. Judgment reversing, 28 Nov. 1882. Monk, Ramsay, Tessier, Cross, Baby JJ. A property may become a public street by the destination ot the pro- prietor, and bj' public use. This desti- nation may be inferred from deeds (1) Gifts by contract of marriage, those wlilch are in contemplation of death mcluded, gifts during marriage, and legacies made by the ascendants of one of the consorts, either to the consort entitled to inherit from them or to the other, are deemed as regards immove- ables, unless there is an express declaration to the contrary, to be made to the consort en- titled to inherit and are his private property as beuig acquired under a title equivalent to succession . The same rule applies even when the gift or the legacy in its terms is made to both consorts jointly. AH gifts and legacies thus made to both consorts jointly, or to one of them by others than ascendants, come un- der the contrary rule and fall into the com- munity, unless they have been expressly ex- cluded. passed by the proprietor, by his allow- ing the land to be used as a street, and by his suffering the municipal author- ities to make public works on it. Guy et al. & The City of Montreal. M. Judgment confirming, 24 Nov. 1880. Sir A. A. Dorion 0. J., Monk, Eamsay, Cross, Doherty JJ. Rep. 1 Dec. d'A. 51, 3 Leg. News 402. DONATION OF MOVEABLES— «• Mar- riage Contract. DONATION ENTRE EPOUX— ». Pilon et al., dk Mallctte. DONATION.— «. Thoroughfare. DON MANUEI A sum of money given by a mother to her daughter,at the time of her marriage, in addition to the dot stipulated by the marriage con- tract will be presumed to be a gift, and not a payment in advance of money due to the daughter from her mother's estate, payable at the mother's death. de Monienach et al, & de Montenach et vir. M. Judgment confirming, 22 Dec, 1874. Dorion, C. J., Monk, Ramsay, Sanborn, Sicotte, JJ. Rep. 19 J. p. 94. DOWER.— " There are two kinds of dower ; that of the wife and that of the children — These dowers are either legal or customary, or prefixed or con- ventional." C. C. 1426. Legal or cus- tomary dower is that which the law independently of any , agreement and as resulting from the mere act of mar- riage establishes upon the property of the husband in favor of the wife as usufructuary and of the children as owners. 1427 C. C. Prefixed or conven- tional, (1) 1428 C. C. Douaire coutumier created by a mar- riage contract, entered into before the coming into force of the registry ordi- nance, does not require to be registered. Leroux & Leroux. M. Judgment re- versing, 22 Dec. 1875. Dorion, C. J., Monk, Ramsay, Sanborn, JJ. Rep. 20 J. 224. (1) Prefix or conventional dower is that which the parties have agreed upon by the contract of marriage . 255 DOWER DROIT DE RETENTION 256 Customary Dower, Law governing- Renunciation by wife of dower— Stipu- lation for the benefit of a third person. The right of dower is regulated by the law of the place where the immo- veable is situate, and therefore accrues to the wife on an immoveable in the Province of Quebec, although the con- sorts may have been domiciled, at the time of the marriage, in England, by the laws of which dower would not accrue. Where the wite agrees to renounce her right to dower on property for a valuable consideration received by her, such renunciation is binding on her, though not made expressly in the form prescribed by the C.C. 1 444. ( 1 ) Ericksen et al., & CuvilHer ei al. M. Judgment confirming, 19 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 3 Leg. News 285. A husband may execute a valid hy- pothec in favor of his wife on his immo- veable property, in lieu of a hypothec which she had by her contract of mar- riage, to secure a sum of money brought by her at the marriage and reserved as propre by her contract of marriage. A married woman may validly re- nounce her priority of hypothec in favor of a third person lending money to her husband on the security of his real estate. (1) The wife who is of age may however renounce her right of dower, whether custom- ary or conventional, upon such immoveables as her husband sells, aUenates or hypothecates the immoveable or by a separate and subse- quent act. Such renunciation in favour of a third person does not deprive the wife of her rights against other mortgage creditors inferior in rank to herself. La Soci4lS de Construction Montarville & Cousi- neau et vir. M. Judgment confirming, 3 Feb., 1880. Sir A. A. Dorion, C.J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 3 Leg. News 329. Heirs joined in a deed of sale of an immoveable pertaining to the succes- sion of their father. They afterwards claimed customary dower on an immoi vable which had been disposed of by their father during his lifetime, without the wife having renounced her dower thereon. Held, that this immoveable would have been subject to dower if the heirs had renounced the succession, but the fact that the heirs joined in the deed of sale fir-t mentioned was equi- valent to a declaration of then- accept- ance of the succession, and excluded their right to customary dower. Bf iournay & Moquin. M. Judgment re- versing, 19 Jan. 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 5 Leg. News 327, 2 Dec. d'A. 187. DRAIN. — The vendor is warrantor that the drains of the property sold, and which are concealed from view, are made according to the By-Laws of the municipal corporation within which , the property sold is situated, and ex- isting at the time when the house sold was erected. Ibbotson & Ouimet M. Judgment reversing, 21 Dec. 1876. Do- rion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 21 J. 53. DROIT DE RETENTION.—!). Mattb & Laroche. E EDIT DE SECONDES NOCES. — u. COMMUNAUTE. EDUCATIONAL INSTITUTION. — A school for the education of young ladies kept by a private individual and not under public control, is not an " edu- cational institution " within the ex- emption of 41 Vict;, (Q.), C. 6, S. 26. (1) Wylie & vir. & CiU de Montreal. M. Judgment confirming, 24 March, 1885. Sir A. A.Dorion, C. J., Monk, Bamsay, Cross, Baby, JJ. Monk, J. dissenting. Rep. M. L. R. I. Q. B. 367, 4 Dec. d'A. 245. ELECTION CASES.— The prohibition of Custom House officers to vote at elections by the act 20 Vic, c. 22, S. 3 (1857) continued by B. N. A. Act., S. 41 and 84., does not prevent them from voting at elections for local members. Hamilton & Beauchesne. Q. Judgment confirming, 8 March, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, San- born, JJ. Under the provisions of the 23 Vic, c 17, the costs of an election feast, after the election was over, are not recoverable. Guevremont & Tunstall & al. M. Judgment confirming, 22 Leg. 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Ramsay et Tes- sier, JJ. dissent from this motive of the judgment, but concurred in the judg- ment as there was not legal evidence to support the action; Under the Dominion controverted (1) Section 77. of chapter 15 of the Conso- lidated Statutes for Lower Canada is amended by adding after sub-section 2 the following provision : — " 3. Every educational institution receiving no grant from the corporation or municipality on which they are situated and the land on which they are erected and its dependencies, shall he exempt from municipal and school taxes, whatever may be the act or charter under which such taxes are imposed, notwith- standing all provisions to the contrary." Elections Act of 1874, (37 Vic. c. 10) there is no appeal from an order given in chambers by a judge of the Superior Court permitting a candidate at a fe- deral election to examine the ballots- Mackenzie & White. M. Judgment dis- missing appeal, 20 September, 1875. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. Rep. 7 Rev. Leg. 21 S. No appeal lies to the Court of Queen's Bench from a judgment of the Superior Court on an election petition under the- Dommion Controverted Elections Act of 1874, 37 Vic, c 10. The Dominion Parliament had a legal right to impose on the Superior Court and the judges thereof the duty of trying controverted elections of mem- bers elected to the House of Commons of Canada. Bruneau & al & Massue. M.. Judgment rejecting appeal, 18 Dec, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, Jj. Rep. 23 J., 60, 2 Leg. News 38, 9 Rev. Leg. 626. Section 100 of the Dominion Contro- verted Elections Act of 1874, (37 Vic. c. IS) does not preclude the recovery of accounts for lawful expenses con- nected with an election, unless the ex- penses were incurred with a corrupt or illegal motive. Workman & The Mont- real Herald Printing & Publishing Co. M. Judgment confirming, 18 Sep., 1877. Sir A. A. Dorion, C. J., Monk, Ramsay,. Tessier, JJ. Ramsay, J. dis. Rep. 21 J. 268, 9 Rev. Leg. 305. Influence, Menaces A menace to- be intimidation and to be classed as undue influence, under 37 Vic. o. 10, must be of a serious char- acter, of an evil that has something real and substantial in it, and not only idle and trivial words. McKenzie & Tur- geon. Q. Judgment reversing, 5 Oct., 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 5 Leg. News 335. 259 ELECTION CASES ELECTION CASES 260 In penal actions, such as that insti- tuted under section 134 of the Electo- ral Act of Quebec, (38 Vic, c. 7) making false declarations as to qualifica- tion, the evidence must be considered under the strictest rules, on the prin- ciple que la fraude ne se presume pas. Neault & St-Ci/r. Q. Judgment con- firming, 5 June, 1877. Sir A. A. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. Eep. 3 Q. L. E. 147. Under the Quebec Election Act (1875) (38 Vic, c 7) the mere fact that a voter being in the county of Berthier, was engaged to seek a cart load of efiects in Montreal, that he went on the polling day and did not vote, and that he did not bring back the load he was sent for is sufficient to raise a presumption that the person employing him was guilty of a corrupt practice under the said act. Lapierre & Laviolette. Judgment confirming, 27 September, 1882. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. The Chief Justice dissenting held there was no sufiicient evidence of the accu sation. Eamsay, J. dissenting thought the action did not show which of the corrupt practices indicated by the Statute was complained of. The evi- dence dit not show any corrupt bargain but the reverse. The action was there- fore under the fifth subsection. That there was no evidence of intention be- cause an innocent act standing alone cannot be evidence of a corrupt inten- tion. Rep. 6 Leg. News 415, 3 Dec d'A. 6. The holding of an election under 38 Vic, c. 7, Q. is matter of record, and in an action for a penalty, it must be proved by the written certificate of the returning officer. Suspicions are not to take the place of proof in prosecutions for electoral frauds. The corrupt inducement to vote or to refrain from voting must be clearly proved. Hihert & Choquette. Judgment reversing, 7 Dec, 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Eep. 6 Leg. News 414. Lorsque dans une action penale d'apres I'acte electoral federal tel qu'a- mende par 46 Vict., ch. 4, S. I., un de- mandeur par une seule et mgme action demande le recouvrement de plusieurs penalites ou amendes, il doit faire avec son prcecipe, un depot de $50 pour chacune des dites penalites dont il de- mande le recouvrement. Choquette & Hubert. Q. Judgment reversing, 7 May 1884. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Baby, J. dis- senting. Eep. 7 Leg. News, 178, 10 Q. L. E. 192. Appellant was sued for the penalty for personating an elector under the 38 Vic, c. 7, sect. 210, (Q). The declara- tion set forth that the Plaintiff demand- ed a ballot-paper. No amendment was asked for and the judge in first instance dismissed the action. In review this judgment was reversed " consid&mi que d'apres la section 293 du susdii acte, il suffisait que le demandeur alii- gua dans sa declaration, que le d4fen- deur lui devait la somme de cinq cents piastres, que I'acie de supposition de personne avail 4te commis" and in appeal the judgment in review was affirmed. Laherge & Gagn4. Q. Judg- ment confirming, 8 February, 1884. Sir A. A. Dorion, C. J. Monk, Eamsay, Tes- sier, Baby, JJ. Eamsay, J. dissenting, thought the declaration defective, that there were no words to cover the al- legation that it was the Plaintiff that personated and not the Defendant, that the error was amendable, that no mo- tion to amend had been made, that the judge had not amended, neither had the court of review, and that the court of appeal had no power to amends material fact. In addition to this there was no evidence as to who was return- ing officer. Verbal evidence that he was returning officer is sufficient, but that evidence must be given. (Sect. 295) The admission of the Defendaat relied on to make up this is insufficient, as he does not specify to what election he alludes. Dans une action, sous I'acte des Elec- tions Federales de 1874, en recouvre- ment de penalites pour corruption de voteurs a une election sous cette loi, 'a preuve que les personnes accusees i 261 ENQUETE ENQUETE 262 d'avoir ete corrompues avaient la qua- lite d'electeurs ne peut etre faite que par la production au dossier de la lists electorale en force dans la circonscrip- tion electorale oii I'election a eu lieu, et la preuve testimoniale ne saurait y suppleer. Dans I'espSce, la preuve qui doit constater la nature de I'election et les noms des candidats electoraux est aussi essentielle. Filiatrault et Prieur. M. Judgment confirming, 21 January, 1886. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Rep. 4 Dec. d'A. 306. ELECTION. — «. School Commissioner. ELECTORAL LISTS. Cases. V. Municipal EMPHYTEUSIS. — Emphyteusis, or emphyteutic lease, is a contract by which the proprietor of an immoveable conveys it for a time to another, the lessee subjecting himself to malce im- provements, to pay the lessor an annual rent, and to such other charges as may be agreed upon. Art. 567 C. C. The lease of a mill for twelve years with the obligation of the lessee to erect certain buildings on the land leased, and to pay an annual rent is an ordinary lease subject to the jurisdic- tion of the lessor and lessees act. Ma- rett & Robitaille. Q. Judgment revers- ing, 8 Jime, 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. Rep. 9 Rev. Leg. 420. Under an emphyteutic lease, the lessor has not, for the payment of the rent and other obligations of the lease, the privilege which he has in an ordin- ary lease on the moveable property found in, or removed from the premises leased. Alliott & The Eastern Town- ship Bank. M. Judgment reversing, 1 9 Jan., 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 2 Dec. d'A. 172. ENQUETE. — The regular mode of taking evidence, unless there be a consent in writing, is in presence of a judge. And a party can refuse to pro- ceed where there is no judge. And if Defendant be summoned to appear where there is no judge and he does not appear he will not be held to be in contempt, if it be established that he knew there was no judge in the district, and therefore did not obey the subpcena. Nor will be he charged with the costs of the day. And leave to appeal will not be granted from a judgment so deciding. Pacaud & Poisson, Q. Judg- ment 6 Dec, 1873. Duval, C. J., Bad- gley, Monk, Taschereau, Eamsay, JJ. It is only by consent that a party in a contested siiit can proceed to take evidence at length, and either party has a right to insist that the case be proceeded with at enquSte and merits. The Exchange Bank & Craig, M. Judg- ment refusing leave to appeal 27 March, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk, J., dis. Eep. 7 Leg. iSTews 390. An enquite will be ordered in appeal to enable respondent to prove acquies- cence in a judgment. Jordan & Jett4, M. Judgment September, 1875. Dorion, C. J., Monli, Taschereau, Ramsay, San- born, JJ. Where a petition has been filed praying the dismissal of an appeal on the ground of acquiescement, and affidavits are filed in support and against the application of a contra- dictory character, leave will be granted to cross-examine the deponents. Hotte & Champagne, M Judgment 19 Nov., 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 25 J. 227, 2 Dec. d'A. 127. Where in an action of damages for libel, the plea, being in mitigation, is vague, the Defendant will not be given leave to re-open his enquite to examine witnesses not named, and whose evidence is described a,s " tem- dant d prouver la v£rit£ de tons les fails alUguis dans Varticle inariminS en cette cause d pen de chases pris, etc." Irvine & Tousignant, Q. Judgment refusing leave to appeal 4 Dec, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. 263 EEROR ERROR 264 ERROR.— Error is a cause of nullity in contracts, subject to the rules and limit- ations of the Civil Code.' C. C. 991. Error is a cause of nullity only when it occurs in the nature of the contract itself, or in the substance of the thing which is the object of the contract, or in something which is a principal con- sideration for making it. C. C. 992. And so Letters Patent issued in error as to important facts will be set aside. Begina & Normand & al., Q. Judgment reversing 8 Sep., 1881. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Letters patent granted by the crown according to an individual, the rights to gold mines on certain property in his seigniory, will not be set aside as being granted in ignorance of facts, if it appears that gold had been already found in small quantities, such as or en paillote. Begina & Couillard & al, Q. Judgment confiiTning 7 Dec, 1 883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, J.J. Rep. 6 Leg. News Mi'l. And it is immaterial that the con- tract was made by an agent who sup- pressed the material fact which was within his knowledge, although his principal was ignorant of the fact sup- pressed. And where shares were sold, pur- porting to be shares of an incorporated company, when, in fact, no such cor- poration was in existence, the error into which the purchaser was led was sufficient to annul the contract. Chre- tien & Crowley. M. Judgment confirm- ing 19 Jan., 1882. Rep. .5 Leg. News 2 62. 2 Dec. d'A. 385. A pohcy of Insurance may be set aside for error. Brodie tfc The JElna Life Insurance Company, M. Judgment 16 June, 1876. Sir A. A. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, ,1.1. Rep. 20 J. 286, S Rev. Leg. 91. A receipt may be set tis-ide for error. Price it- al., & Mercier, Q. Judgment 7 September, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, .IJ. Sie Marie & Ste Marie, M. Judgment con- firming 15 June, 1877. Sir A. A. Dorion C. J., Monk, Bamsay, Sanborn, Tessier' JJ. An action will lie to correct an error in the description of real estate in a contract. Ward & Hayden, Q. Judg- ment confirming 3 June, 1881. Sir A. A. Dorion, C. J., Monk, JRamsay, Cross, Baby, JJ. An action was instituted for the delivery to Plaintifi" of an immovable sold to him, and paid for by him. The Defendant pleaded that the sale was for ;f 120 and not for $120 as the deed purports it was, and she asks to have the deed set aside. The error as to the amount of the purchase money was not proved. The Superior Court main- tained the action. In Review that judg- ment was reversed the Court holding. " Seeing that the property described in the Plaintiff's declaration, and which the Plaintiff alleges that he purchased fi'om his mother in-law, the Defendant for one hundred and twenty dollars^ was at the date of the alleged purchase) ; worth at least eight hundred dollars, and had been insured for that sum, which was more than six times as much as the Plaintiff agreed to pay for it." " Seeing that at the date of the said purchase, the Defendant who is about seventy years of age was in affliction caused by the death a few days before of her daughter, who had been living' with her, and that the said Defendant at the period aforesaid, appears more- over to have been under the influence of unfounded apprehensions as to pro- ceedings that might be taken against her, by the husband of her daughter who had recently died." " Considering that the Plaintiff as the husband of the Defendant's m- viving daughter, was the person;*!* whom, under the circumstances already mentioned, the Defendant had a right to look for advice and assistance." " Considermg that the said deed of sale shows plainly great weakness on 265 ERROR ERROR 266 the part of the Defendant the seller, and advantage taken of that weakness by her son-in-law the purchaser, the said cohtract of sale being such, as no man in his senses, and not under a delusion, would make on the one hand, and as no honest and fair man would accept on the other." This judgment was contirmed in Appeal 8 June, 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Ram- say, J., dis. Fair ct Doolan, 2 Leg. News 39.5. In a commercial matter it may be proved by parol testimony that a receipt was given by error. Price et al. . Faux — Sale. FORCE MAJEURE.— i). Damages. It is incumbent on a party alleging force majeure as a justification to prove it. So when a clerk was entrusted by his employer with money to make pur- chases, and he could not produce the money and said it had been stolen from him, he was held liable for the money, failing to prove that it had been stolen from him, and that he had used due diligence to protect it. Gravel & Martin et al. M. Judgment confirming, June, 1874. Taschereau, Ramsay, San- born, I.orangei- JJ. Taschereau, J. dis. FOREIGN PRINCIPAL.— v. Factor.— Mandate. FORGERY OF RECEIPT. — Brady & Church. M. Judgment confirming, 28 April 1882. Sir A. A. Dorion, C. J.' Monk, Ramsay, Cross, Baby, J,J. FORGERY.— I. CEi.MixAf, Lam. The burthen of proof is on the jaarty pi'oduoing a check, the signature of which is denied, to establish it is the check of the party whose signature it purports to bear. Evidence that gives rise to a con- jecture, but which of itself would not be proof, is not inadmissible under our system, as it may be used by the judge in deciding on which side is the balance of evidence. Proof of hand-writin'g is very uncertain. Clark & The Exchange Bank of Canada. Judgment reversing, 4 February 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Caron, JJ. Rep. 3 Leg. News, 4.5. FORGERY OF BODY OF DRAFT.— Where a Bank draws a draft for $25 on one of its branches, and fails to advise such branch of the fact, and the draft FRAIS 304 is afterwards raised to one for $5000, and so skillfully as to deceive the branch office, which pays the amount of the draft as raised to another Bank, holding the draft in good faith, and, in consequence of such payment, this latter Bank pays $35011 on account thereof to the person from whom the Bank received it, the former Bank cannot recover from the latter Bank the amount so paid to it. The Union Bank & The Ontario Bank. M. Judg- ment confirming, 24 Nov. 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk, J. dis. Rep. 24 J. 390, 3 Leg. News 386. 1 Dec. d'Appel 38. FORMA PAUPERIS — v. appeal,— ori- .ArlNAL LAW, FACTUMS. If a party establishes under oath that he does not possess sufiicient means to make the necessary disbursements, the court or a judge, upon being satisfied by affidavit that such party has a.good cause of action or a good defence, may grant him leave to plead in forma pau- peris, and may order all officers, of jus- tice to affiDrdhim their services without any remuneration; but such party, if he tails in the suit is not exempt from condemnation to pay costs to the other I party. 31 C. C. P. Where a Defendant petitioned to be released from capias, and the petition was rejected, held that he could not appeal from such juHgment in forma pauperis. Canadian Bank of Commace & Brown. M. Judgment 1 2 Dec. 1 874, Dorion C. J. Monk, Taschereau, Ram- say, Sanborn, J.J. Rep. 19 I. 110. Legaull & Legault 16 L. C. R. 163, Q.E 188G. FRAIS In French, costs, generally, are called dipens de Vactim- Frais is sometimes used to express a particular item of costs, as faux frais, '■^ frais pr^judicieux." (Ord. 1667, T. XII, art. 3, 1 Jousse 148) art. 29C.C., which, however, would more properly have been called dipens. Frais is also used as a generic word to express ^ kinds of costs, as in article 1042 C P- C 305 I'RAN'C! ET QUITTE FRAUD 306 Our law on the subject of costs arises principally out of the Ord. of 1667. It is in these words. " Toute partie, soit principale ou in- tervenante, qui succombera meme aux renvois, declinatoires, evocations ou reglements de juges, sera condamnee aux depens indefiniment, nonobstant la proximite ou autres qualites des par- ties; sans que sous pretexte d'equite, partage d'avis, ou pour quelqu" autre cause que ce soit, elle en puisse etre dechargee. Defendons a nos eours de parlement, grand conseil, cours des aides, et autres nos cours ; requetes de notre hotel et du palais, et a tous autres juges, de prononcer par hors de cours sans depens. Voulons qu'ils soient taxes en vertu de notre presente ordonnance, au profit de celui qui aura obtenu definitivement, encore qu'ils n'eussent pas ete adjuges, sans qu'ils puissant etre moderes, liquides ni re- serves." Titre XXXI, art. I. FRANC ET QUITTE. Htpothbo, — Damages. Contract, — A propert}" was sold " free and clear " of all iVicumbrances whatsoever, save " and except a vendor's privilege for " $5,250 in favor of the heits McKen- " zie," which the vendors by the deed of sale undertook to pay, and have a discharge thereof duly registered. Meld: — 1st That the above clause being equivalent to a stipulation of franc et qiiitte, satisfaction thereof was a condition precedent to the institution of an action for the purchase money or any portion thereof, or for arrears of interest. 2nd. That the purchaser, sued for an instalment of the purchase money, pro- perly pleaded the vendor's default to fulfil the condition, by an exception temporaire. 3rd. That the purchaser, in order to be in a position to claim damages for non-satisfaction of the clause of franc et quitte, should put the vendor en de- meure to remove the incumbrance and allow a reasonable delay for doing so. Laio & FrotMngliam. M. Judgment re- versing, 9 Feb. 1881. Sir A. A. Dorion, C. J., Monk. Ramsay, Baby, Caron JJ. Rep. 25 J. 172. 4 Leg. News 67. FRANCHISE. — Inequitable exercise of a Municipal. A street Railway Com- pany, authorised by statute (24 Vict. o. 84) to construct a track upon and along the highways in the parish of Montreal, leading into the streets of the City " and to use and occupy any and such '•' parts of anjf of the streets on high- " ways aforesaid as may be required " for the purpose of their railway track " and the laying of the rails and the " running of their cars and carriages, " exceeds its powers by laying the track on one side of a highway, within six feet from the line of the adjoining property, the value of which was thereby greatly diminished. Where st right of passage is given it should be exercised ex cequo et bono, in accordance with the use and destination of the highway, so as to cause as little inconvenience as possible (compatible with the exercise of the privilege) to the public, and the ad- joining proprietors. And, in the pre- sent case the track should have been constructed on the part of the high- way used by vehicles, and not on one side thereof used by persons on foot, and where the running of the cars interfered with access to the adjoining property. Neither the trustees of the Montreal Turnpike roads, nor the municipality of the parish, had any right to authorize the laying of the track of the railway on one side of the highway, so as unne- cessarily to injure the adjacent pro- perty. Ross & City Passenger Railway Co. M. Judgment reversing, 16 Sep., 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 24 J. 60. FRAUD. — M. ExBCUTOKT Contract, — Insolvency, — Partage, — Succession. A party himself guilty of fraud can- not seek that a contract be set aside on account of that fraud, even against the party who concocted and originally suggested the fraud. Gareau & Gareau, 307 rHALI) FREIGHT 308 M. Judgment confimiing, \'> June, 1877. Dorion, C. J., Monk, Eamsay, banborn, Tessier JJ. Eep. 24 J. 248. By agent Where an agent in mak- ing a contract fraudulently suppressed a material fact within his knowledge, his principal cannot profit by the fraud, although he was himself ignorant of the fact suppressed, alierius circumventio alii nonprcebet actionem, de vig. in 2, 49. And so where shares were sold, pui'porting to be shares of an incorpo- rated company, when, in fact, no such corporation was in existence, the error into which the purchaser was led was suflScient to annul the contract. Chre- tien and Crowley, M. Judgment con- firming, 19 Jan. J 882. Rep. 5 Leg. News 262, 2 Deo. d'A. 385. It is not fraud for a father to pur- chase the furniture belonging to the husband of his daughter for her protec- tion, and to leave her in possession of it in the common habitation of the family, and a purchase of this sort gives rise to no presumption of simulation. Johnston & Scott. M. Judgment con- firming, 20 September 1882, Monk, Ramsay, Tessier, Cross, Baby JJ. A purchaser who buys the property of his brother-in-law in order to assist him, agreeing to pay his debts, may licitly contract with a creditor, who does not know of the sale, to take less than the face value of the debt. Blouin & Brunette M. Judgment confirming, 20 November 1 882. Monk, Ramsay, Tessier, Cross, Baby JJ. Rep. 3 Dec. d'A. 58. L'Intime qui a achete une terre de son beau-frere Scott, a la charge de payer les dettes de celui-ci, I'afait dans le but de venir en aide a Scott, et que cette transaction n'est nullement enta- chee de dol. Blouin & Brunette, M. Judgment confirming, 20 Nov. 1882. Monk, Ramsay, Tessier, Cross, Baby JJ. Rep. 3 Dec. d'A. 58. Nullity of deed. — Hypothec L'an- nulation d'une vente ou donation d'un immeuble, pour cause de fraude, n'at- teint pas Phypotheque consentie a un tiers de bonne foi, lorsque I'emprunteur possede )e dit immeuble en vertu de titres parfaits a leur face et n'indiquant aucun signe apparent de nullite. Nor- mandin et les Religieuses Carmelites d Hochelaga, M. Judgment confirming 2 J Dec. 1883. Sir A. A. Dorion, J. Ram- say, Tessier, Cross, Baby JJ. Rep. 3 Dec. J. A. 329. FRAUDULENT PREFERENCE. - v. Insolvency. FREIGHT. — V. Carriers. Freight is the recompense payable for the lease of a ship or for carrying goods upon a lawful voyage to the place of their destination. In the absence of express stipulation it is not due until the carriage is completely per- formed, except in the cases specified ini this section. 2442 C. C. Freight is due for cattle, received on board a ship, dying on the passage and thrown over-board. Biclcerdyhe & Mur- ray. M. Judgment confirming, 24 March, 1882. Sir A. A. Dorion, C. J. Ramsay, Tessier, Gross, Baby, JJ. Rep. 5 Leg. News 149. Note There was also a case oiHead 6 Murray decided the same day and involving a similar question. Where goods were to be delivered to the holder of a bill of lading on pay- ment of freight, and they were in tact delivered to the holder of the bill, a carrier, without paying freight, and on the sole credit of the carrier, who had funds from the real unknown consignee to pay the freight, the carrier having become insolvent, the captain cannot recover the freight from the consignee. Fletcher & Bickford. M. Judgment confirming, Sep., 1875. Dorion, C. J, Monk, Taschereau, Ramsay, Sanbom, JJ. An action for freight may be brought in the name of the captain alone, if the contract be made with him. Baichelder & Bellefeuille. M. Judgment confirm- ing, 19 March, 1877. Dorion, C. J-, 309 FRENCH LANGUAGE FRENCH LANGUAGE 310 Monk, Ramsay, Sanborn, Tessier, JJ. Dorion, C. J. & Sanborn, dis. FRENCH LANGUAGE— The English and French languages being both re- cognized by " the British North Ameri- ca Act of 1867," as official languages, an indictment may be framed in French. Regina & Chouinard. Judgment on re- served case, 8 Sep., 1874. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Rep. 4 Q. L. R. 220. C3- GARANTIE.— The obligation of the garant formel is not extinguished by a decret, which does not purge the charge, even where the acqu£reur be- comes adjudicataire under the decret Soulard & Leiourneau. Q. Judgment reversing, 7 Sep. 1874. Dorion., C. J. Monk, Taschereau, Eamsay, Sanborn, JJ. Dorion, C. J., & Monk, J., dis. Rep. 19 J 40. Under the terms of the following letter the signer intended to make himself, and is personally liable : Montreal, May 1 1 th, 1 S77. Messrs. Ritchie . Faux. INSOLVENCY—!;. Ban-kixo,— Lease, &o, By bankruptcy, /a i7Zi November, 1881. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Assignee Where an action is insti- tuted under section 45 of the Insolvent Act of 1869, and the action is dismissed, a new action cannot be instituted with- out a new authorization by the judge. Murphy es qu. & Macintyre & al. Q. Judgment confirming, 6 March, 1879. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Taschereau iH. T.) J J. The individual note of a partner of an insolvent firm, himself insolvent, and which has been entered in his statement of liabilities, cannot be re- covered upon. And the fact that the note in suit is slightly different from the note mentioned in the statement may be explained by evidence. The Exchange Bank of Canada & Eward. M. Judgment confirming, 25 Nov. 1882. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Intervention. — There was an agree- ment to pay R. $100. R. petitioned the Court to have an order to compel assi- gnee to carry out arrangement, and the creditors intervened to oppose the order being granted. JSeldhe had an interest to take such a proceeding and that it was regular. Robertson & Molony. Judgment confirming, 7 Sep. 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Private estates of partners of insol- vent partnership The Consolidated Bank of Canada proved a claim for $153,464.62 against the insolvent estate of Mulholland & Baker, secured by the individual liability of Henry Mulholland & Joel C. Baker, two of the members of the firm, under a letter of guarantee of the 20th of January, 1876, this secu- rity valued in the claim at |75,000, and also by a transfer from M. & B. of two mortgages on the property of William P. Bartley for $25,000 each and valued at $45,000. The Merchants' Bank proved its claim secured by a transfer of another mortgage on William P. Bartley's pro- perty for $25,000 and which the Bank valued at $ 1 3,000. On the claim made by the Consolidated Bank, Leslie, a creditor of Mulholland & Baker, con- tested the transfer made by M. & B. to the bank of the two mortgages against Bartley's property, and a,sked that this transfer beset aside as having been made in fraud of the creditors. On the claim of the Merchants' Bank, Leslie, on the same grounds, contested the transfer made to the Bank by M. & B. of their other mortgage on Wni. P. Bartley's property. Rodgers and others', also creditors of M. " and to pay the amount of all calls " thereon, at the office of the company « in Montreal, at such times as the 393 JOINT-STOCK CO. JUDGE 394 " Provisional Directors or the Directors " of the company when incorporated " may direct." In the subsequent proceedings, the promoters of this company, excluded Respondent, were themselves consti- tuted the company " with all others who may become share holders " ; and they made different arrangements of an important kind affecting the capital of the company without the privity or consent of Respondent. Held, that the Eespondent was not obliged to take the stock at the suit ot the company, subsequently fornaed, under the above undertaking. The Magog Textile and Print Company & Dohell. Q. Judgment confirming, 7 October, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Rep. 9 Leg. News 348. Les directeurs d'une compagnie in- corporee n'ont pas, encore que Facte d'incorporation permette d'augmenter le capital autorise, le pouvoir de decre- ter telle augmentation du capital pii- mitif, s'U est prouve que, dans I'espece, le pont de la compagnie est en bon ordre at n'a besoin d'auoune repara- tion, si une somme assez considei-able d'argent est en caisse, toutes dettes payees, at si telle augmentation n'est faite que pour permettre aux directeurs la direction des affaires de la Compa- gnie. Perreault et al. & Milot et al. Q. Judgment confirming, 6 May, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rap. 14 Rev. Leg. 417. Powers of — As the transaction in question was for the purpose of carry- ing out the objects of the society in strict accordance with its views, it was not ultra vires, Compagnie du Cap Gi- braltar & Hughes. Judgment confirm- ing by the Supreme Court, 23 June, 1884. Sir W. J. Ritchie, C. J., Strong, Fourniar, Henry, Gwynna, JJ. Strong, G-wynne, JJ., dissenting. Rep. 11 Sup. Court Rep. 537. The Appellant signed an undertak- ing to take stock in a company to be incorporated by Letters Patent under Q. 31 Vict. c. 25, but was not a peti- tioner for the Letters Patent, nor was his name included in list of intending shareholders in the schedule sent to the Provincial Secretary with the peti- tion. The Appelant's name was not mentioned in the Letters Patent incor- porating the company, nor did he be- come a shareholder at any time after its incorporation. Held. 1st. That the Appellant never became a shareholder of the company, and could not be held for calls on stock. 2nd. The Union Navigation Co. & Couillard (7 R. L. 215 & 21 J. 71.) and Rascony & the same Co. (1 Leg. News, 494 & 24 J. J 33.) followed and approv- ed. McDougall et al. & the same Co. (21 J. 63.) distinguished. 3rd. (Per Tessier, J.) — That a sub- scription to stock in a company to be incorporated is a mare proposition and not a binding promise to take and pay. 4th. (Par Ramsay, J,) — That under the terms of the Statute 31, Vict., Q. c. 25, the only persons who are share- holders in a company incorporated thereunder are those named in the Letters-Patent as such, and those who become members after incorporation. Arless & Belmont Manufacturing Co. M. Judgment reversing, 21 May, 1885. Monk, Ramsay, Tessier, Cross, Baby, JJ. Cross, J., dissenting. Rep. M. L. R. 1 Q. B. 340. 4 Dae. d'A. 233. JUDGE. — Assistant A case, in which two of the regular judges in appeal were disqualified, one as being a party to the suit, and the other owing to re- lation-ship within the prohibited degree, was heard before four judges, that is before two of the regular judges of the Court and two judges a I hoc. There was a difference of opinion, and the Court stood equally divided and a re- hearing was ordered. In the meantime one of the disqualified judges resigned and the permanent judge was appoint- ed in his place. The other disqualified judge obtained leave of absence and his place was filled by an assistant judge. The question then arose as to the judges by whom the re-hearing was to take place, and first whether the judges 395 JUDGMENT JUDGMENT 396 ad hoe who had been seized of the case should sit. It was unanimously held that the two judges ad hoc who had been seized of the case should sit. The Mayor &c. of Montreal & Brummond. M. Judgment 17 March, 1874. Tasche- reau, Ramsay, Sanborn, Loranger, JJ. And the Court having reassembled to try the case Taschereau, Ramsay, San- born, Mackay, Torrance, JJ., it was sug- gested by Ramsay, J., that when a fifth judge was required to iill a vacancy, this complication not having been con- templated, the fifth judge had to be selected from the Superior Court. But the majority of the Court held that Ramsay, J., sat to complete the Court in virtue of his oommifsion as a regu- lar judge of the Court. Ramsay & Mac- kay, JJ., dis. Kep. 18 J. 76. 5 Rev. Leg. 298. JUDGMENT. — V. Albie^ts. Intekloou- TOEY. Security for costs in appeal A party obtaining leave to appeal from an interlocutory judgment, forfeits such right if the security by law required be not given within the delay fixed by the Court. Buneau & McCaffrey, Q. Judg- ment reversing, 8 June J 881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 7 Q. L. R. 364. 1 Dec. d'A. 313, 11 R. Leg. 253. Non obstante veredicto Under the article 423 of the Code of Civil Proce- dure, as amended by the 35th Vict., ch. 4, and article 424 of same Code, all motions for new trial, for judgment non obstante veredicto, and in arrest of judgment must be made before three judges sitting in Review, and not in the Superior Court. Insufficiency and illegality of evid- ence are not grounds for a motion in arrest of judgment. Fletcher & The Mutual Fire Insurance Co. for Stan- stead & Sherbrooke. M. Judgment re- versing, 25 Jan. 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby JJ. Rep. 1 Dec. d'A. 177. Final A judgment dismissing an inscription en faux is not a final judg- ment in the case, and consequently leave to appeal from it to the Privy Council will not be granted by the Court of Queen's Bench. Darling & Templeton. M. Judgment, 15 Feb. 1875. Monk, Taschereau, Ramsay, Sanborn, JJ. Rep. 19 J. 105. Ultra petita — A person employed to repair railway carriages by changing them from platform trucks into passenger cars, cannot, being unpaid for his work, revendicate the cars so transformed as his property. And having alleged they were his property, and demanding to be paid the value of the cars he cannot recover the value of the work which is not alleged nor prayed for. SenScal & Peters. M. Judgment reversing, 22 Sep. 1 874. Monk, Taschereau, Bamsay, Sanborn, Sicotte, JJ. Rep. 7 Rev. Leg. 308. New Trial An appeal does not lie to the Privy Council from a judgment of the Queen's Bench ordering a new trial. The South Eastern Railway Com- pany & Lambhin. M. Judgment, 15 June, 1877. Dorion C. J., Monk, Ram- say, Sanborn, Tessier, JJ. Rep. 22 J. 21. The Privy Council granted special leave to Appeal, and reversed the judg- ment of the Queen's Bench. Clerical error A mere clerical error in a judgment which does not alter the dispositive, but only affects the narra- tive, will be corrected on application, even after the judgment is entered up in the register. So where the judgment by error stated that leave to appeal was granted by the ■ consent of the opposite party, it will be amended by striking out such words, and substitu- ting words to negative such consent. Goldring & Barik of Eochelaga. M. Judgment, 12 December, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, J J. Reported 2 Leg. News 410.. Error i«--Where by error the Defend- ants were condemned jointly instead of jointly and severally, the Court will not amend the judgment for it is a question of law whether the condemn- 397 JUDICIAL ADVISER ation should be joint or joint and several. The remedy is by Appeal. The Exchange Bank & Lord et al. M. Judgment refusing motion, 17 Dec, 1883. Sir A. A. Dorin, C. J., Monk, Eamsay, Tessier, Cross, JJ. Petition to revise. — Errors in the printed factum of an appeal will not justify a requete civile. Hampson & Thomson. M. Judgment 14 June, 1879. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Kep. 2 Leg. News 206. JUDGMENT TO ACCOUNT.— u. Plead- ing AND PkAOTICE. JUDICIAL ADVISER.— A judicial ad- viser is given to those who, without being absolutely insane or prodigal, are nevertheless of weak intellect or so inclined to prodigality as to give reason tofear they will dissipate their property or seriously impair their fortune. 349 C. C. Judicial advisers are given by those who have power to interdict, on the de- mand of any person who has a right to demand interdiction, and with the same formalities. Such demand may also be made by the party himself. 350 C.C. If the powers of the judicial adviser be not defined by the judgment the person to whom he is appointed is pro- hibited from pleading, transacting, bor- rowing, receiving moveable capital and giving a discharge therefor, as also from aUenating or hypothecating His pro- perty without the assistance of such adviser. The prohibition can only be removed in the same manner that the appointment has been made. 351 C. C. If the demand for interdiction be rejected, the Court may, if circum- stances require it, appoint a judicial adviser to the Defendant. C. C. 331. the appointment of an adviser takes effect from the day of the jugd- ment, notwithstanding the Appeal. * the acts done by any one to whom an adviser has been given, without the JURISDICTION 398 assistance of such adviser are null, if injurious to him, in the same manner as those of minors and of persons in- terdicted for prodigality, according to article 987. C. C. 334. The appointment of a judicial adviser does not necessitate a rejorise d'insiance because it does not change the status of the party. Rolland & Michaud. M. Judgment 2 March, 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. Where a person had verbally express- ed the intention to'make a donation, and subsequently when afflicted with softening of the brain and being of feeble intelligence, with the assistance of a judicial counsel, made the dona- tion, it will be held valid. Brault & Brault. M. Judgment confirming, 27 Sep., 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross JJ. Monk J. dis. Eep. 1 Leg. News 495. JURISDICTION.-The Court of Queen's Bench has no revisory power, except by way of appeal, over the proceedings of the Superior Court, and it cannot, on an application for habeas corpus, examine into proceedings of the Su- perior Court in order to see whether a warrant committing a person to jail for rebellion ci la justice in a civil suit, re- quires him to pay, in order to get his discharge, a sum greater than he was condemned to pay by a judgment of the Superior Court. Ex parte Pollock, Petitioner for Habeas Corpus. M. Judg- ment rejecting petition, 22 November, 1881. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby JJ. Sir A. A. Do- rion, C. J. dissenting. Eeported 5 Leg. News 293, 2 Dec. d'A. 60. A writ of Habeas Corpus will not be granted to liberate a pi-isoner charged with process in a civil suit, even though the writ of execution in virtue of which he was arrested appear to be irregular, if it is within the scope of the jurisdic- tion of the Court from which it issued, Exp. Healey. M. Judgment in Cham- bers, Feb. 1878. Monk J. Rep. 22 J, 138. To permit of a defendant being sued 399 JURISDICTION JURISDICTION 400 in a district other than, that of his do- micile, under articles? C. P., the cause of action must have arisen in one dis- trict. Tf it arose in different districts, the ordinary rules of summons prevail. Faucher & Brown. M. Judgment confirming, 22 November, 1881. Sir A. A. Dorion, C. J.. Ramsay, Tessier, Cross, Baby JJ. Reported 2 Dec. d'A. 168. An objection to the local jurisdiction if not pleaded, will be held to have been waived. Gray & Dubuc. Q. Judg- ment confirming, 5 Sep. 1876. Sir A. A. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier JJ. Rep. 2 Q. L. K. 234. The cause of action for goods sold by sample at lie Verte, District of Kamou- raska subject to the ratification of the principal at Montreal, ratified by him there, and goods forwarded thence to de- fendant at lie Verte,arose in the district of Kamouraska. Gault et al. & Ber- trand. M. Judgment confirming, 22 November, 1881. Sir A. A. Dorion, C. J., Ram?ay, Cross, Baby JJ. Reported 25 J. 340. La Cour Superieure a juridiction pour connaitre d'une poursuite, pour le recouvrement d'une somme exce- dant $200, pour trava'ux faits pour une corporation municipale sur des che- mins aux Irais du proprietaire, et ce, nonobstant les articles 398, 401, 951 et 1042 C. M. Ross & Corporation of Ste Clotilde. Q. Judgment confirming 8 May, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Kep. 11 R. Leg. 520. Where damages are the ground of action, and the facts occurred in two districts, the Defendant can only be sued in the district of his own domicile, Qr where he is served personally. So where Defendant began a prosecution against Plaintiff by accusing him of theft before the police magistrate, at Montreal, and a warrant was issued and Plaintiff was arrested in the district of Iberville, service on the Defendant in the district of Bedford, where he resides, summoning him to answer an action of damages in the district of Montreal for the above criminal pro- ceedings is insufficient. Bolduc & Ar- chambauU. M. Judgment reversing 24 March, 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Ram- say, J., dissenting thought that the service was sufficient, that the cause of action was the complaint which was made in Montreal, and that the other proceedings were merely accessory and incidental. Rep. 2 Dec. d'A. 110. A foreign corporation may be sued at at any place in Lower Canada where it has an office for the transaction of bu- siness. So where a foreign corporation had an office for the sale of sleeping car tickets, at Montreal, the company was rightly impleaded in an action for da- mages for unlawfully expelling the Plaintiff, holder of a sleeping car ticket issued by the company, from one of their sleeping cars, and thus compelling him to travel to Montreal without the accommodation to which he was enti- tled. The New York Central Sleeping Car Co. & Donovan. M. Judgment con- firming, 27 May, 1882. Prothonotary, interdiction A judg- ment of interdiction which has been pronounced by the Prothonotary, is subject to revision by the Court only, and not by a judge in chambers. Cle- ment & Francis. M.Judgment reversing, ; .30 June, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Eep. 5 Leg. News 301. 1 Dec. d'A. 346. In Chambers A tierce opposition addressed to the Court was presented to a judge in chambers, and was dis- missed for the following reasons : " lo parce qu'elle est adressee a un juge en chambre ; 2o parce que le juge en chambre n'a pas juridiction pour de- charger un sequestre ; 3o parce que le tiers-opposant invoque pour la revoca- tion du sequestre des droits de proprie- te sur lesquels un juge en chambre ne peut se prononcer ; 4o parce que le fait qu'un tiers pretend etre le proprietaire de droits a des mines dont la posses- sion est deja en contestation entre la Demanderesse et la Defenderesse rend leur sequestration plus necessaire qu'elle ne I'etait auparavant." Doran & Th6 Canada Gold Mining Co. Q. Judgment 401 JURISDICTION JURY 402 confirming, 4 May, 1883. Sir A. A. Do- rion, C. J., Monk, Eamsay, Cross, Baby, JJ. An action to resiliate a lease should be brought before the Superior Court or before the Circuit Court as the amount claimed by the action, for lease or for use and occupation or for dama- ges is of the jurisdiction- of the one or other of those Courts, and not accord- ing to the annual rent or value of the premises. Voisard & Saunders. M. Judgment reversing, 21 Dec, 1877. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Monk, Tessier, JJ., dis. Eep. 22 J. 43. 1 Leg. News 41. The Circuit Court has jurisdiction in real actions where the subject in litiga- tion does not appear to be of greater value than $200. Dumas & Gagnon. Judgment reversing, Q. 4 March, i 875. Dorion, C. J., Monk, Tasohereau, Eam- say, Sanborn, JJ Where by law it is determined that certain penalties shall be recovered be- fore a Justice of the Peace residing in the Municipality, and in default of there being such Justice residing there then before a Justice of the Peace re- siding in a neighboring Municipality, any prosecution before or fine imposed by a Justice of the Peace in a neigh- boring Municipality will be null if there be a Justice residing in the Munici- pality competent to act. And a .Justice of the Peace residing in the Municipality is not incompetent to act by reason of his being a rate payer. La Corporation de St. Lazare & Auh4 et al. Q. Judgment reversing, 7 Sep., 1876. Dorion, C. J., Monk, Eamsay, San- born, Tessier, JJ. Le Magistrat du District a juridiction pour le recouvrement de taxes munici- pales quelqu'en soit le montant. Sous les articles 939 et 951 du Code Municipal, une Corporation locale peut etre poursuivie devant le Magistrat de District pour le recouvrement d'une dette de Comte due par la Corporation locale a la Corporation du Comte. La Corporation de la Faroisse St: Gu,illau- me & La Corporation du Comt& de Drummond. Q., 5 Dec, 1876. Monk, Eamsay, Sanborn, Tessier, JJ. Eep. 7 Eev. Leg. 562. Legislative — Judicial— L'Intime a ete condamne pour vente de boissons sans licence, par le magistrat de police du district d'Arthabaska, a payer a I'Ap- pelant, inspecteur des licences, une amende de $75, ou a aller en prison. Sur un writ de prohibition, la convic- tion a ete annulee par la Cour Supe- rieure, parce que, en vertu de la sous- section 1 5 s. 92, de I'Acte de I'Ameri- que Britannique du Nord, I'Intime ne pouvait etre condamne a une amende et a la prison a la fois, et que la sec- tion 222, 41 Vict., ch. 3 (Quebec), sous laquelle Taction a ete iutentee, etait ultra vires. Juge en appel, infirmant le jugement de la Cour Superieure. lo Que rintime n'a pas ete condam- ne cumulativement a une amende et a la prison, mais a payer une amende et, seulement a defaut du paiment de cette amende, a aller en prison, et qu'il n'y a en cela auoun exces de ju- risdiction, soit de la part de la Legisla- ture, soit de la part du magistrat qui a condamne I'Intime ; 2o Que I'existence d'un reglement prohibitif en vertu du Code Munici- pal, n'afFecte pas le droit de la Legis- lature de la Province de Quebec d'im. poser une amende plus forte que celle imposee par ce reglement. CotS & Pa- radis. Q. Judgment reversing, 3 June, 1881. Sir A. A. Dorion C. J., Monk, Ramsay, Cross, Baby JJ. Eep. 1 Dec. d'A. 374. JURY. — Where, to obtain six jurors speaking the language of the defence CEnglish) the list of jurors speaking that language was called, and several were ordered by the Crown to stand aside ; and the six English speaking jurors being sworn, the clerk re-com- luenced to call the panel alternately from the lists of jurors speaking the English and French languages, and one 403 JURY TRIAL of those previously ordered to " stand aside" was again called, held, that the previous " stand aside" stood good un- til the panel was exhausted by all the names on both lists being called. The Queen & J. B. Dougall, & J. D. Bou- gall. Judgment 22 Sept., 1874. Dorion, C. J., Monk, Taschereau, Eamsay, San- born. Eep. 18 J. 242. JURY TRIAL. — An agreement to go into partnership with another to con- struct a railway is commercial, and con- sequently an action of damages for the breach of such contract may be tried by jury. McLea & McDonald. M. Judg- ment reversing, 3 Feb., 1 876, Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. The service, within four days after issue joined on amended pleadings, of a notice of motion praying acte of the mover to have a trial by jury, and the making of such motion subsequently, are a sufficient compliance with the re- quirements of Art. 350 of the Code of C. P.. Brown & The Imperial Fire Ins. Co. M. Judgment reversing, Dec, 1875. Dorion, C. J., Monk, Ramsay, Sanborn, JJ. Eep. 20 J. 179. If the Plaintiff fails to appear when the cause is called for hearing he may be non-suited ; but the non-suit may be set a>ide, and a venire de novo may be ordered, according to English prac- tice, on payment of costs by Plaintiff. Bain & White et al. M. Judgment re- versing 22 Nov., 1881. Sir A. A. Dorion, C.J. Under the article 423 of the Code of Civil Procedure, as amended by the 35th Vict., ch. 4, and article 424 of same Code, all motions for new trial, for judgment non obstante veredicto, and in arrest of judgment must be made before three judges sitting in Eeview. Insufficiency and illegality of evi- dence are not grounds for a motion in arrest of judgment. Fletcher & The Mutual Fire Insurance Co. of Stan- stead, &c. M. Judgment reversing 25 January, 1881. Sir A. A. Dorion, C. J., JURY TRIAL 404 Monk, Eamsay, Cross, Baby, JJ. Eep. 1 Dec. d'A. 177. The motion for judgment on the verdict, in a civil case, can only be opposed by means of a motion for a new trial, a motion in arrest of judg- ment, or a motion for judgment non obstante veredicto (422 C- C. P.) ; and where these motions had been made unsuccessfully by the Defendant, and the Plaintiff then moved for judgment on the verdict, the findings of the jury must be taken as they stand, and the Plaintiff's motion for judgment on the verdict will be granted if the findings of the jury are in his favor. Fletcher & The Mutual Fire Ins. Co. for Stanstead & Sherbrooke. M. Judgment reversing 24 Sep., 1883. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 6 Leg. News 340. A Plaintiff having a right to a trial by jury, who has not made option by his declaration for such trial, may make his option after plea filed, and before completing the issue, notwith- standing the 64th rule of practice. Masson & Gebhardt. M. Judgment re- versing June 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Sanborn, JJ. Where a jury by their verdict, in an action on a policy of Insurance cover- ing goods in No. 319 St Paul Street, gave Plaintiff the value of goods stored in 3 1 5 St. Paul Street, being the neigh- boring warehouse, the verdict was set aside and a new trial ordered. The Citizens Insurance Co. & Bolland. M. Judgment reversing, 14 December, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Tessier, JJ. Eep. 1 Leg. News 604. New trial — Where the jury by their verdict have found generally, that the death of a man killed at a place where the railroad crosses the high-road was by the negligence of the company, and where acts were suggested as being acts of negligence oromission, someofwhich 'I were not guilty omissions, and some were such omissions as would render the railway company liable, the Court will not grant a new trial. The Grand 405 JURY TRIAL JUSTIFICATION AND SLANDER 406 Trunk Railway Co. of Canada & God- bout. Q. Judgment .confirming, 6 Sep. Dorion, C. J., Monlt, Ramsay, Sanborn, Tessier JJ. Where on a reserved case, tlie Court of Queen's Bench holds the conviction to be bad, and the question has been reserved whether a new trial should be granted, a new trial may be granted in cases of misdemeanors, under C. S. 1. C. Cap. 77, S. 58, SS. 2,_the autho- rity given to the Court of Queen's Bench 'to make such other order as justice requires," including the right to order a new trial where, in the opinion of the Court, the interests of justice require it. Regina & Bain. M. Judg- ment 22 June, 1877. Eep. 23 J. 327. Where the damages granted by the verdict of a jury are excessive, the Court will set aside the verdict and grant a a new trial. The North East- em Counties Railway Co. & Lambkin. M. Judgment reversing, 16 March, 1877. Monk, Eamsay, Sanborn, Tes- sier, JJ. On special application the Privy Council granted leave to appeal and this judgment was reversed. A verdict of a jury awarding unjust and excessive damages, and such as are wholely unwarranted by the evidence, will be set aside and a new trial granted. The Bank of Toronto & Ansell. M. 1875. Rep. 7 Rev. Leg. 262. JUSTICE OF THE PEACE, who is only resident in a neighbouring municipali- ty, qualified to act in a municipaUty neighbouring to that of his residence, if there be no justice of the peace quah- fied to act resident of the municipaUty where the penalty is incurred, will be stopped by prohibition. La Corpora- tion de St. Lazare & Auh£ et al. Q. Judgment reversing, 7 Sept. 1876. Do- rion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. JUSTIFICATION & SLANDER. LANDLORD. — v. Lessor. Right to make repairs. — A tenant became insolvent, and the leased pre- mises, which were vacant, subsequently becoming uninhabitable, the landlord proceeded to execute certain repairs. neld : — That in default of a demand by the lessee, or his representative the assignee, to rescind the lease, it con- tinued to subsist, and the lessor was entitled to rent, less the time occupied in making the repairs. Rolland et al, & Tiffin et al. M. Judgment reversing 22 Sep., 1877. Dorion, C. J., Monk, Eam- say, Tessier, Cross, JJ. Rep. 22 J. 164. LAW An ex post facto law passed by a local legislature as to a matter within its powers is not unconstitu- tional. Molson & the Mayor &c. of Montreal. M. Judgment confirming 27 Jan., 1876. Bep. 23 J. 169. 8 Rev. Leg. 650. LAW OF ENGLAND AS TO PROMIS- SORY NOTES.— u. EviDEXCE. LAY DAYS. — V. Charter Party. LEASE V. Insolvency. — Jurisdic- tion. Besiliation A lease will be rescind- ed if the premises are not habitable. Leville & O'Brien. M. Judgment re- versing Dec, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Action under lessor and lessees act to rescind lease Motion to reject Ap- peal the annual rent being $50. How- ever there was a clause in the lease (which was for seven years) permiting Defendant to purchase the property any time during the lease for $1000. The judgment set aside the lease, and thus determined Defendant's right to purchase. The motion to reject the Appeal was rejected, the Court holding that a title to land was in question. Cauchon & Anderson. Q. Judgment 1 Dec, 1874. Dorion, C. J., Monk, Tas- chereau, Ramsay, Sanborn, JJ. Where the fire only partially des- troys the premises leased, the lessee cannot oblige the landlord to terminate the lease. Geriken & Pinsonneault. M. Judgment confirming June 1875. Do- rion, C. J., Monk, Taschereau, Ramsay, Sanborn, J J. Dorion, C. J., Sanborn, J., dis. were of opinion that the injury rendered the house uninhabitable. It is not every failure on the part of the lessor to perform his obligations that will warrant the lessee in seeking to set the lease aside. So where the lessor of a farm promised to build te new house by the first week in May, and fallen to do so, and the lessee was living in the lessor's house, and did not complain of the delay, till the first term of the rent was due, an action to resiliate the lease was dismissed. Ballantine & Snowdon. M. Judgment confirming June 1874. Taschereau, Ramsay, Sanborn, Loranger, JJ. LEASE TO JOINT TENANT.— A lease to two persons of certain premises creates a joint and several liability to pay the rent, and the lessor cannot refuse the whole of his rent from one of them, the other having become in- solvent. Cohen et al, & Molson. U. Judgment reversing Jan., 1876. Dorion, C. J., Monk, Ramsay. Sanborn, Tessier, JJ. Dorion, C. J., Sanborn, J., dis. Verbal notice to quit A lessee is not liable to be put out of possession of the premises leased by a petitory action. A lessee not holding for a fixed 409 LEASE TO JOINT TENANT LEASE TO JOINT TENANT 410 period cannot be expelled without a no- tice of three months. Arts. 1 642, 1 642 ( 1 ) C. C. Boudreau & Dorais. Q. Judgment confirming, 4 June, 1880. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 10 Rev. Leg. 458. Tacite reconduction is the conti- nuance of the lease on the same terms as it was formerly held without any new contract- Hodgson & Evans. M. Judgment confirming 15 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 3 Leg. News 300. EmpTiyteuHc Under an emphy- teutic lease, the lessor has not for the payment of the rent and other obliga- tions of the lease, the privilege which he has in an ordinary lease on the moveable property found in, or re- moved from the premises leased. Alliot & The Eastern Townships Bank. M. Judgment reversing. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Eep. 2 Dec. d'A. 172. A lease for 12 years, containing also a promise of sale, cannot be regarded as a lease giving rise to the summary proceedings provided for by Art. 887 et seq. of the Code of Civil Procedure. Lupine & The Permanent Building Co. of Jacques-Cartier. M. 27 January, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 22 J. 300. Tacite reconduction A question of evidence. Dubois & Cassidy. M. Judg- ment confirming, 24 Novomber, 1882. (1) "When the term of a lease is uncertain or the lease is verbal or presumed, neither of the parties can terminate it without giving notice to the other with a delay of three months if the rent be payable at terms of three or more months ; if the rent he payable at terms ot less than three months, the delay is to be regulated accordingto article 1642. The lease or hire of a house or part of a house , when no time is specified for its dura- tion, is held to be annual terminating on the first day of each year when the rent is at so much a year, for a month when it is at so much a month, for a day when it is at so much a day. If the rate of the rent for a certain time is not shown, the duration of the lease is re- gulated by the usage oftlie place. 1642 C.C. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Ramsay, J. dissent- Besiliation of — A tenant cannot question his lessor's title. Poitras & Berger. M. Judgment reversing, 20 Sep., 1879. Dorion, C. J., Monk, Ram- say, Tessier, Cross, JJ. Monk, J. dis. Rep. 2 Leg. News 390, 10 Rev. Leg. 214. Article 1625 C. C, does not apply to an emphyteutic lease. 76. Where a lessor has not stipulated that the lessee shall hot sub-let. the lease will not be set aside although the lessee do sub-let. And where in a pre- vious lease there was a prohibition to sub-let. not repeated in the subsequent lease, in which several other conditions of the former lease are renewed, the presumption is that it was not the in- tention of the parties to prevent sub- letting. Rhdaume et al. & Panneion, et al. Q. Judgment, 7 Jnne, 1879. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, JJ. Monk, J. dis. Of mining lands A memorandum in the following form : " The said William Hepburn hereby promises and binds himself to lease unto the said Thomas MoCaw, his heirs and assigns for the term of ninety-years, all the mining privileges which may be found on the farm which he now occupies, being the East half of lot number 7 in the ninth range of Ascot. In consideration of which the said Thomas* McCaw binds himself to give and pay to the said William Hepburn the one-tenth part of all the net proceeds of all minerals found on said farm, as well as £15 per acre for all the available land which he may destroy by his mining operations, in consideration of which he now ac- knowledges to have received one dollar, is not such a title as will allow the heirs of McCaw to oppose the sale of the minerals,the land being seized on a judg- ment against the owner- Anderson & Tait et al. M. Judgment confirming, June, 1875. Dorion, C. J., Monk, Tas- chereau, Ramsay, Sicotte, JJ. A hail a rente d, longues annies of a mill and its dependency within the li- 411 LEGATEE LEGISLATIVE POWERS 412 mits of a seignory does not constitute a vente seigneuriale, which, for its pre- servation requires to be placed in the cadastre, under the acts for the aboli- tion of the seigniorial tenure. Sart & Co. & Trudel. Q. Judgment reversing, 5 December, 1874. Monk, Taschereau, Eamsay, Sanborn, Bosse, JJ. A lease will be amended where it ap- pears that the lessor has failed to sup- ply the lessee with a privy to which the latter was entitled under his lease. And the lessee having abandoned the pre- ,mises as being uninhabitable for want thereof will not be held responsible for the rent after such abandonment. Beaudry & Lupien. M. Judgment con- firming, 23 Sep., 1881. LEGACY. — The sale of the object be- queathed under pressure of urgent ne- cessity did not, prior to the Code, imply an intention to revoke the legacy. Evidence of long cohabitation of a white man and an Indian woman in the North West Territory, the woman never having received the title of wife, will not establish a valid marriage. Connol- ly & Woolrich (11 p. 197l distinguished. Fraser & Jones. Q. Judgment rever- sing, 8 May, 1885. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Monk, J., dis. Rep. 8 Leg. News 178. LEGATEE. — v. Executor Liability of Particular The particular legatees of an immoveable hypothecated by the testator are bound to pay the hypothec, to the exoneration of the testator's ge- neral estate, unless by the will it is ■otherwise ordered. The ordinary provision in a will, that all the testator's just debts, funeral and testamentary expenses be paid by his executors as soon as possible after his death, is not such an order or direction as would exempt the particular lega- tees from paying such hypothec to the exoneration of the testator's general estate. Harrington et al. & Corse. M. Judgment reversing, 24 March, 1882. Sir A. A. Dorion, C. J., Eamsay, Tessier, ^Cross, Baby, JJ., Tessier, Cross, JJ. dis. Eep. 26 J. 79. 5 Leg. News 148. This judgment was reversed in the Supreme Court, (Sir W.T. Ritchie, C. J., Strong, Fournier, Henry, Taschereau, Gwynne, JJ., 9 S. C. E. 412), on the ground that the ordinary clause of a will " that all my just debts, funeral and testamentary expenses be paid by my executors as soon as possible after my death " was a " direction by the testator to pay all his debts including the debt of $3,000 secured by the hypothec," taking the case out of the rule, it must be supposed, of art. 889 C. C. (Strong, J, dis.), Fournier, Taschereau, Gwynne, JJ. Held that " when a testator does not expressly direct a particular legatee to discharge a hypothec on an immo- vable devised to him, art. 899 C. C, (1). does not bear the interpretation that such legatee is liable for the payment of such hypothecary debt without re- course against the new or universal le- gatee." Residuary Query, can a residuary legatee be a witness in an action by the testamentary executor, the result of which would be injurious or beneficial to such legatee. The question was raised but not decided. M. Oruice et al. & Dannody. M. Judgment confirming, Dec, 1875. Dorion, C. J., Monk, Eam- say, Sanborn. LEGIGLATIVE POWERS UNDER BRI- TISH NORTH AMERICA ACT 1867.- Public health is subject to the legisla- tive powers of the local legislatures and the repeal of chapter 38 C. S. C. was beyond the powers of Parliament. Bin- fret & Pope. Q. Judgment confirming, (1) If before or since the wiU the immove- able bequeathed have been hypothecated for a debt of the testator remainmg still due, or even for the debt of a third person, whether it was known or not to the testator the heir or the universal legatee, or the legatee by ge- neral title, is not bound to discharge the hy- pothec unless he is obliged to do so by the wni. A usufruct established on the thing Be- queathed is also borne without recourse by the particular legatee. The same mle appba to servitudes. If, however, the hypothecary debt of a third person of which the testator was ignorant aflect at the same time the par- ticular legacy and the property remainingm the succession, the benefit of division may oe reciprocally claimed. 413 LEGISLATIVE POWERS LEGISLATIVE POWERS 414 8 October, 1886. Sir A. A. Dorion, C. J., Kamsay, Tessier, Cross, Baby, JJ., Earn- say, Cross, JJ. dis. By the act 45 Vict. (Q.) ch. 22, "to provide for the exigencies of the " pu- blic service" of the Province of Quebec, a tax was imposed on every bank, in- surance company, and other commer- cial corporation doing business in the Province. The tax was imposed in pro- portion to the paid up capital of the banks, together with a tax on each office, etc. Some of the corporations in- terested in the cases here determined have their principal offices out of the Province, and some were incorporated in England or in the United States. In some cases, the stock is held chiefly by persons not resident in the Province of Quebec. The taxes imposed on corpoi-ations by the act in question are personal and direct taxes within the Province, and such as are authorized by sect. 92, sub- sect. 2 of the B. N. A. Act, 1867. A cor- poration doing business in the Pro- vince is subject to taxation under sect. 92, sub-sect. 2, though all the share- holders are domiciled out of the Pro- Bven assuming that the taxes in question should be considered as not falling within the denomination of di- rect taxes, the local legislature had power to impose the same, in as much as they were matters of a merely local or private nature in the Province, within the meaning of the B. N. A. Act, sect. 92, sub-sect. 16. The North British and Mercantile Fire and Life Insurance Co. dk Lambe. M. Judgment confirming, 23 January, 1885. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Sir A. A. Dorion, C. J., Cross, J. dis., were of opinion that the taxes in ques- tion are indirect taxes and are not au- thorized by sub-sect. 16 of sect. 92 of theB. N. A. Act, 1867. Rep. M. L. E. IQ. B. 122. 1 Deo. d'A. 112. NoTA. — Eight other appeals in which the same questions were involved, were argued in the same time, the judgment applied to all nine cases. Lambe & Can- adian Bank of Commerce ; Lambe & Bank of Toronto ; Lambe & Ontario Bank j Lambe & Merchants' Bank ; Lamb & Molson Bank ; The Williams Manufacturing Co. & Lambe; The Og- densburg Towing Co. & Lambe ; The Export Lumber Co. & Lambe. The five appeals by the License Inspector, re- versed, and the four appeals by corpor- ations, confirmed. (1) Toute legislation sur la sante publi- que, dans chaque province, a I'excep- tion des etablissements des quaran- taines et des hopitaux de marine, tombe dans les attributions legislatives de chaque province. Le Parlement de la Puissance n'avait aucun pouvoir de rappeler les disposi- tions duch. 38 des Statuts R. B. C, et que ces dispositions ne sont pas abro- gees par le Statut du Canada, de 1868, 31 v., ch. 63, s. 15, et qu'elles etaient encore en force, le 4 Septembre J 885, date de la proclamation du lieutenant- gouverneur de la province, declarant cet acte en force, et nommant un bu- reau central de sante. La nomination d'un bureau local de sante pour la Cite de Quebec, faite, le 16 Octobre 1885, par le lieutenant-gou- verneur en conseil, vu le defaut du maire de la Cite de Quebec de convo- quer une assemblee du Conseil-de-ville, pour la nomination d'un bureau local de sante, apres en avoir ete dument re- quis, dans les delais voulus parle statut, est legale, et pourra etre declare telle a la poursuite d'un chef de famille resi- dant dans la municipalite, dans une procedure par quo warranto. Apres la nomination d'un bureau local de sante, par le lieutenant-gouver- neur, a defaut par le maire d'avoir con- voque une assemblee du conseil pour en nommer un, le Conseil-de-ville de la Cite de Quebec n'avait pas le droit de nommer un autre bureau local de sante. Binfret & Pope. Q. Judgment reform- ing 8 October, 1886. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Eep. 14 Eev. Leg. 605. (1) Since confirmed in Privy Council. 415 LEGISLATIVE POWERS LESSOR AND LESSEE 416 While the local legislatures have no jurisdiction to deal with an indictahle misdemeanour, that being a matter of criminal law assigned exclusively to the Parliament of Canada, they have authority to legislate for the prohibition of things hurtful to public health, not matter for indictment at common law, such as factory chimneys " sending forth smoke in such quantity as to be a nuisance." The local legislatures pos- sess this power as coming under "muni- cipal institutions" under B. N. A. Act, S. 92, No. 8 ; and the fact that a term of the criminal laws ("nuisance") is used in a local act to characterize an oflPense within the jurisdiction of the local legislature does not make the enactment ultra vires when the offence is not per se an indictable pfi'ense under the criminal law. Pillow et al. & Mous- seau, Ait-Gen. M. Judgment confirm- ing, 27 January, 1885. Sir A. A. Dorion, C. J., Eamsay, Cross, Baby, JJ. Rep. M. L. E. I. q. B. 401. 14 Kev. Leg. 252. Held : — That a powder manufactory where a quantity of powder exceeding 25 lbs, is kept, is a powder magazine within the meaning of 41 Vict. (Q.) C. 3 a 170. (By the majority of the Court) : — That the Act above cited, which impo- ses a penalty for failing to take out a license, is not ultra vires, being in the nature of a police regulation, and as such within the powers of the local legislature, even supposing the provi- sion of the Act requiring a fee of S50 to be paid for a licence were ultra vires as a revenue tax. (By Eamsay, J. )— That the Act is valid, not as a police regulation, but as a licence Act, the local legislatures having power, under the B. N. A. Act, sect. 92, s. s. 9, to pass an Act for rai- sing revenue by a licence fee. The Ha- milton Powder Co. & Lamb. M. Judg- ment confirming, 2.3 November, 1885. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, JJ. Eamsay, J. dissenting as to reasons. Eep. M. L. E. I. Q. B. 460. 14 Eev. Leg. 254. The Legislature of the heretofore Province of Canada had power to au- thorize the Corporation of Quebec to make by-laws prohibiting under a pen- alty any interference with the ice- bridge across the Eiver St. Lawrence, or with the ice stopping and forming a bridge, even by a steamer navigating the river. The Eecorder of Quebec has jurisdic- tion to try complaints of violation of the by-law made under the authority above mentioned. Barras & The Corpora- tion of the City of Quebec. Q. Judg- ment confirming, 7 February, 1885. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Eamsay, J., dissenting. Eep. 11 Q. L. E. 42. 8 Leg. News 131. LESION. — Persons of the age of ma- jority are not entitled to relief from contracts for cause of lesion only (C. C. 1012.) In this case no fraud was proved. Charlebois & Charlebois. Judgment reversing, 28 November, 1882. Monk, Eamsay, Tessier, Cross, Baby JJ. Eep. 26 J. 364, 5 Leg. News 421. LESSOR & LESSEE Sous locatair re. — Where liable for rent If there be a prohibition in a lease as to sublettingj a sub-tenant cannot claim the benefit! of Article 1621(1) of the Civil Code of Lower Canada, but under Article 1619 (2) his effects will be liable for the whole rent due by the original tenant to the landlord. Les Sceurs de VHopital Gi- niral & Yuile & al. M. Judgment re- versing, 20 Sep., 1875. Dorion C. J., Monk, Taschereau, Eamsay, Sanborn JJ. Eep. 20 J. 329. A lease by which a mill is let for twelve years with a stipulation that the lessee shall make certain buildings on the premises and to pay an annual lease, is subject to the provisions of (1) The right includes also the effects of the render tenant in so far as he is indebted to tlie lessee. (2) The lessor has for the payment of his rent and other obhgations of tlie lease a jn- vileged right upon the moveable effects wKcn are found upon the property leased. 417 LESSOR AND LESSEE LESSOR AND LESSEE 418 the lessor and lessee's act. Mareit & Rohitaille & al. M. Judgment revers- ing, 8 June, 1876. Dorion C. J., Monk, Eamsay, Sanborn, Tessier JJ. Eep. 9 Bev. Leg. 420. Building Society lease. — A lease for 12 years, containing also a promise of sale, cannot be regarded as a lease giving rise to the summary proceed- ings provided for by Act 887 et seq. of the Code of Civil Procedure. Lupine & La Soci6t6 de Construction Jacques- Cariier. M. Judgment reversing, 27 Jan., 1879. Dorion C. J., Monk, Ram- say, Sanborn, Tessier, JJ., 20 J. 300. A suit instituted under the Lessors and Lessees' Act may be united with a cause proceeding between the parties under the ordinary jurisdiction of the Superior Court, in which the same question is involved. Where an agent in making a contract has suppressed a material fact within his knowledge, his principal cannot profit by the fraud, although he was himself ignorant of the fact suppressed. Where shares were sold, purporting to be the shares of an incorporated company, when in fact, no such corpo- ration was in existence, the error into which the purchaser was led was suffi- cient to annul the contract. Chretien & Crowley. M. Judgment confirming, 19 January, 1882. Sir A. A. Dorion C. J., Eamsay, Cross, Baby, JJ. Reported 5 leg. News, 268. 2 Dec. d'A. 268. Where a landlord injures his tenant by neghgenoe, in making alterations and repairs, damages may be recovered. Jolicceur & Moisan. M. Judgment con- firming, 3 February, 1876, Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. If water-pipes of a bad and insuffi- cient kind burst in a leased house, and damage the tenant's property in the house, the landlord will be liable in damages. Mann & Munro. M. Judg- ment confirming, Sep. 1875. Dorion, C. J., Monk, Taschereau, Eamsay, San- born, JJ. 14 And another tenant in possession of the portion of the premises where the break actually took place will not be liable as garant of the landlord. Mann & Nield. Judgment confirming. lb. Negligence of lessee. Damages. D' An- glais & Lockead. M. Judgment con- firming, 3 Feb., 1876. Monk, Eamsay, Sanborn, Tessier, Sicotte, JJ. A tenant is not under the control of his landlord within the meaning of C. C. 1054, (1) so as to make the landlord responsible for the negligence of the tenant in the use of the premises leased. A proprietor is not responsible for loss occasioned by sparks from the furnace and chimney of a tannery erect- ed and leased by him, where there is no defect in the construction of the furnace. Bufour & Boy. Q. Judgment confirming, 6 February, 1885. Sir A. A. Dorion, C. J., Monk, Tessier, Cross, Baby, JJ. Eep. 11 Q. L. R. 192. 8 Leg. News 75. 14 Eev. Leg. 511. A contract of lease of steam-power to the extent of sixhorse power, was not violated by sub-letting a portion of the motive power, there being no more power used than was mentioned in the lease, and there being no prohibition against sub-letting. Sharpe et al, vs. Cuthbert et al. M. Judgment reversing, 26 May, 1885. Monk, Ramsay, Tessier, Cross, Baby, JJ. Rep. M. L. E. L Q. B. 479. 4 Dec. d'A. 211. Un locataire qui loue una maison pour I'occuper et qui I'occupe partie comme magasin et partie comme resi- dence privee, n'en change pas la desti- nation en contravention a Particle 1624 C. C. (2) en souslouant la partie qu'il (1) He is responsible not only for the dam- age caused by his own fault but also for that caused by the fault of persons under his con- trol and by things which he has under his care. (2) The lessor has a right of action in the ordinary course of law or by summary pro- ceeding as described in the Code of Civil Procedure : 1. To rescind the lease : First — When the 419 LETTERS PATENT LIBEL 420 occupait comme residence privee a un club de jeunes gens qui se reunissent dans cette maison le soir pour discuter, fumer et s'y amuser. Black ei al, vs. Dorval et al. M. Judgment confirming, 23 November, 1885. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Monk, J., dissenting. Rep. 14 Eev. 127. 29 J. 327. LETTERS PATENT.— Suits to annull letters patent under the great seal of the Province must be brought by the Attorney or Solicitor General for the province, or other party authorized. Pacaud & Bickaby. Q. Judgment con- firming, 7 Sep. 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Rep. 1 Q. L. R. 245. Letters Patent for beach lots in deep water in the St Maurice riviere granted by the government of the Province of Quebec are valid. Normand & La Com- pagnie de Navigation. Q. Judgment reversing, 8 March, 1879. Dorion C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 5 Q. L. R. 215. 10 Rev. Leg. 513. Misrepresentation A party sueing to obtain letters patent for crown lands, is obliged to communicate full informa- tion before the officers of the Depart- ment to enable them to judge of the validity of his claim, and any conceal- ment or misrepresentation will be a ground for annulling such patent. And error of the officers as to the claimant's title will be a ground for annulling the patent. Lor anger Atty. GenH & Morin. Q. Judgment reversing 4 Dec, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, .JJ. Rep. 1. Dec. d'A. 88. Letters Patent issued in error of Ipssee fails to furnish the premises leased, if a house, with sufficient furniture and moveable effects, and il a farm with sufOioient stock to secure the rent as required by law unless other security be given : Secondly — ^When the lessee commits waste upon the premises leased ; Thirdly — Wlien the, lessee uses the premises leased for illegal purposes or con- trary to the evident intent for which they are facts will be set aside. Begina & Nor- mand et al. Q. Judgment reversing, 8 Sep., 1881. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. LETTER 0F_ GUARANTEE.— u. Guar- antee. LIABILITY OF PARTNER IN INSUR- ANCE. — V. Insurance. LIBEI In a civil action for damages for verbal slander, the truth cannot be pleaded as a defence, unless it be that the occasion justified the statement, and that there was no malice. The change in the criminal law does not incidently affect the civil recourse. Fahey & Baxter. M. Judgment con- firming, 11 Dec. 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Where the libel complained of is only the answer to personal and anonymous attacks no damages will be allowed. Beers & iJoTOA;er.M. Judgment confirming, June 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. The use of the expressions M and fraud in an action are not ne- cessarily libellous. And an action to set aside a deed on the ground of M axidi fraud is not libellous if the alle- gations be made with probable cause, without malice, although the party making the allegation fails in his suit also. A complaint to the Council of the bar is not a libel even if the complaint be rejected, if it be made with probable cause and without malice. Barihei Boudreault. Q. Judgment reversing, 7 June 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. By medical practitioner — A medical practitioner is liable in damages for maliciously publishing, in an action against his patient for fees for his ser- vices, the nature of the malady for which such services were rendered. And malice will be presumed from ili« publication. E. & T. Q. Judgment re- versing, 5 June 1879. Sir A. A, Dorion, 421 LICITATION VOLONTAIRE LIEN BY LANDLORD FOR RENT 422 C. J., Monk, Ramsay, Tessier, Cross, I JJ. Eep. 5 Q. L. R, 267, 9 Rev. Leg. 579, 2 Leg. News 202. A Priest is liable for malicious and calumnious words used by him in preaching or otherwise addressing his parishoners in Church. He is not Uable for words used in admonishing his pa- rishoners against any notorious scandal, or attempt to alienate his parishoners from their religious belief, although the nature of the admonition inciden- tally implies, but does not expressly formulate, a rebuke against a particu- lar person. A Priest's advice to a parishoner to avoid going to a certain place where conversation injurious to his religion is indulged in, is privileged, and this although it may be injurious to the trade of the person using or permitting such language to be used, and although the priest be aware that the effect of advising his parishoners not to frequent such place will be detrimental to the trade of such person. Messire Blan- chard & Richer. M. Judgment revers- ing, 22 March, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Sanborn, J. dis. LICENCE. — Taveme. Mandamus. — L'Intime, dans chacune de ces deux causes qui sont en tout semblables, ayant, en mai 1880, requis I'Appelant Inspeoteur des licences a Trois-Rivie- res. de lui octroyer une licence pour tenir une auberge dans la cite de Trois- Rivieres, pour une aimee, en lui offrant chezlui, la somme de $1.00 pour le cout de la licence et deux cautions, au desir de la loi. Juge: — Que I'Appelant n'etait pas tenu de delivrer de licence a I'Intime, qui, pour y avoir droit, devait payer a la municipalite une somme de $70 en vertu de la sous-section D., sect. 63, ch. 3, 41 Vict. Lassalle & Bergeron. Q. Judgment confirming, 7 March, 1881. Sep. 1 Dec. d'A. 257. LICITATION VQLONTAIRE.— Where by agreement a notary was to be in- demnified by a commission on the price of lands sold, and where the lands were bought in by the vendors to pre- vent sacrifice, the notary is not enti- tled to his stipulated commission, but only to the fee allowed by the tariff, and such disbursement as he may have made. Hart & Pinsonneault. M. Judg ment confirming, 28 April, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby. JJ. LIEN FOR ADVANCES.— By an agree- ment entered into between the Appel- lant, Respondents and one Joseph Gordon, respondents undertook to ad- vance to Gordon a sum of $7,000.00 or so much more as should be necessary to manufacture and put on the track of the Northern Railway, in the Pro- vince of Ontario, a certain quantity of timber destined for Quebec. Respon- dents were to have a first lien on this timber for their advances, commission, etc. They now claim from Appellant the amount furnished to Gordon for manufacturing and bringing the timber to Quebec. Held : — That although according to said agreement respondents undertook to advance only the amount required to put the timber upon the track of the Northern Railway, they have a legal lien for their disbursements for bringing the timber to Quebec. Bew & Shorireed & al. Q. Judgment con- firming, 7 May, 1883. Monk, Ramsay, Tessier, Cross, Baby, JJ. Rep. 3 Dec. d'A. 188. Reversed in S. Ct. A commission merchant who refuses to deliver up to the owner the goods entrusted to him to sell until his com- mission and disbursements have been paid, must prove that the owner is in- debted to him. Beauport & Bureau. M. Judgment confirming, 24 March, 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 3 Dec. d'A. 163. LIEN BY LANDLORD FOR RENT — The articles enumerated in art. 1622 C. C. as exempted from the landlord's privilege, are only illustrative of the description of effects which are exempt- ed. 423 LIEN FOR SHARE LIEN FOR SHARE 424 A piano stored with a piano dealer by a third party is only transiently on the premises, and, therefore, is not subject to the landlord's privilege for rent. Ireland & Henry et al. M. Judg- ment reversing. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Eep. 20 J. 327. Deals manufactured from saw-logs sent to a mill to be sawn are not sub- ject to the landlord's privilege for rent, but come within the exceptions de- clared by Art 1622 (1) of the Civil Code. Price et al, & Hall. Q. Judgment re- versing, 22 March, 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. Eep. 2 Q. L. E. 88. 10 Eev. Leg. 120. LIEN FOR SHARE OF GENERAL AVERAGE. — V. Average. Eutherford Bros., in Newfoundland shipped to Lord & Co., in Montreal, a quantity of herrings in August, on the 23rd August, Eutherford Bros., notified Lord & Co., of the shipment and telling them to account for the sales to Eidley & Sons, a firm known to Lord & Co., and with whom they had business relations. This letter was accompanied by a bill of Lading acknowledging the shipment of the herrings by Eidley & Sons. The letter and B. of L. were placed on board the ship (Jane) to be delivered to Lord & Co., on arrival. But on the 30th August, Eutherford Bros., repeated their instructions to Lord & Co., and directing Lord & Co. to insure, which they did and agreed to credit Eidley & Sons by letter of 16 Sep. On the 27 Sep., Eutherford Bros, acknowledge receipt of letter of the 16th and drew on L. & Co. for £76.0.2 which draft was accepted and paid by L. & Co. This note explained what was the consideration of this draft. On the 23 Sep., L. & Co. advanced to Eidley & Sons, who were already considerably in debt to L. & Co., $12,000. On the 13 (1) It includes also moveable effects belong- ing to third persons, and being on the premises by their consent express or implied, but not if such effects be only transiently or accidentally on the premises, as the baggage of a traveller in an inn, or articles sent to a workman to be repaired, or to an auctioneer to be sold. October, Eutherford Bros, telegraphed to L. & Co., cancelling their former instructions and getting L. & Co. to credit them with the proceeds of the herrings. On the 14th October, L. & Co. acknowledge receipt of the letter of the 27 September, and of the tele- gram of the 13th October, allude to the failure of Eidley & Sons and pro- mise to pay the draft of £76.0.2 at maturity, and make no objection to the cancellation of the former instructions. On the 4th November the " Jane '' arrived at Montreal. In the meantime Eutherford Bros, failed, and one Stabb came to Montreal to look after the interests of the Eutherford's estate. Stabb says L. & Co. made no objections to his taking charge of the cargo of the " Jane." It does not appear that he did take charge, and in a conversation with Major, one of the firm of L. & Co. Stabb relates that Major said he was glad they were to have the commission out of it. Held that L. & Co. had no lien on the herrings for the general balance of Eidley & Sons. M. Judgment reversing, March, 1875. Dorion, C. J., Monk, Tas- chereau, Eamsay, Sanborn, JJ. Monk, Eamsay, JJ., were of opinion that after the despatch of the bill of Lading and the letter of advice and their accept- ance, Eutherford Brothers could not change the instruction to the damage of L. & Co. ; that by the Bill of Lading the property was transferred to Eidley & Sons ; that L. & Co., were never dis- possessed of the cargo of the " Jane," and that the silence of L. & Co. in their letter of the 14th October, or in theii- conversations with Stabb do not con- stitute a consent to change the ori^al agreement. The saying " silence gives consent " does not hold good " quandfi scilicet agitur de damno et incommodo tacentis," unless by the silence the other party is induced to do something he would not otherwise have done, or was prevented doing something he might have done " Quod autem tacm quod contra dicendo potuiiimpedire, si non contra dixit, prcesumitur con- smsisse." Men. 2e 6, p. 99, 15. 425 LITIGIOUS RIGHTS LOCATION TICKET 426 LIEUTENANT GOVERNOR.— A by-law passed under the authority of Cap. 25, C. S. L. C, by a municipality subscri- bing for shares in a railway company, and approved by the Lieutenant Gov- ernor in the form required by law, can- not be declared null in a suit against the municipality for the taxes due owing to such By-Law. The Corporation of the Parish of St. Guillaume & The Corporation of the County of Drum- mond. Q. Judgment confirming, 5 June, 1876. Dorion, C. J., Monk, Ramsay, Tessier, McCord, JJ. Rep. 7 Rev. Leg. 721. LIFE INSURANCE.— ». Tj^sttrance. LIMITATION OF PROMISSORY NOTE. — V. Pbesceiption. LIMITED LIABILITY. — v. Incoepora- TiON. — Promoters of a joint stock com- pany who neglect the essential forms of incorporation, are all personally respon- sible and may be sued with the compa- ny in their individual names. The Sun- terston Lumber Company & Ward. Q. Judgment confirming, Sep. 1874. Monk, Taschereau, Ramsay, Sanborn, JJ. LIMITS. — V. Timber Limits. LITIGIOUS RIGHTS.— Article 1584 0. G. § 4, which states that " the provi- sions of C. C. (1) 1582 do not apply when the judgment of a court has been ren- dered aflBrming the right," refers to a judgment upon the particular demand ™ litigation, and not to a judgment afiSrming another right of a similar (1) When a litieious right is soldhe against wiiom it is claimed is wholly discharged by paying to the buyer the price and incidental expenses of the sale, with interest on the price irom the day that the buyer has paid it. character. Brady & Stewart et al. M. Judgment confirming, 22 March, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk, Ramsay, JJ. diss. Rep. 9 Leg. News 374. A bailiff of the Superior Court cannot purchase litigious rights. The charac- ter of the rights may be established by parol evidence. Cot^ & Haughey. Q- Judgmient confirming, 3 Dec, 1881. Monk, Ramsay, Tessier, Cross, Baby, JJ. Ramsay, J. dis. A transfer of litigious rights made on condition that the assignee shall bear the costs, and share in the amount to be recovered, is void as being against law and public policy ; and the assignee cannot maintain an action on such a transfer. Power & al. & Phelan. M. Judgment reversing, 24 September, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, JJ. Monk, J. dissenting. Rep. 4 Dec. d'A. 57. What is a litigious right ? Brady & Stewart. M. Judgment confirming, 22 March, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk, Ramsay, JJ. dissenting were of opinion that the judgment should be reversed as there was no doubtful fact involved in the matters in question, that there was no litigation at the time of the suit, and that matter of law can never be said to be doubtful. Rep. 9 Leg. News 374. LITISPENDENCE. Practice. . V. Pleadikg and LOAN OF MONEY. — v. Commbeoial matter. LOCATION TICKET.— ». Duquette & Gagn£, 1874. im: MAINTENANCE.— ». Aliments. Where a testator charged his uni- versal legatee "de pourvoir en honfrire aux hesoins n^cessaires de son frire A. C, de son Spouse et d'un enfant issu d'un prMdent mariage " it is a be- quest of aliments, and not only a pro- vision in case of want. That the hus- band and child mentioned in the vfill being dead, and the wife married again her right to aliments subsists. That the husband being a party to the action only to authorize his wife d'esier en justice, and not in his personalcapacity as head of the community, into which arrears of the alimentary pension and all payments under it must fall, there is a non-joinder, which, although not pleaded, prevents the Court rendering judgment on the merits, and the case must be sent back to the Court below. Comte & Meunier et vir. M. Judgment 23 January, 1884. Sir A. A. Dorion C. J., Ramsay, Tessier, Cross, Baby, JJ. The mother of an illegitimate child can sue the father for an alimentary pension for the child, the mother having been appointed tutrix to the child. The tutorship existing, the father cannot defend the action by offering to put the child in an asylum. The judgment will not be reversed in appeal because it awards aliments for five months previous to the institu- tion of the action, the father not having supported the child during that time. Poissant & Barrette. M. Judgment confirming, 17 Dec. 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross JJ. Rep. 3 Leg. News 12. And the mother may bring the action in her own name although she be not named tutrix, and where arrears of an alimentary pension have been given and the party charged has not objected, the judgment will be reformed, but without costs. Kingshorough & Pound. Q. Judgment confirming, 5 March, 1878. Rep. 4 Q. L. R. 11. 1 Leg. News 115. When it is proved that the children of a person having need of support are poor, and that they offer to lodge, feed and provide for their father, it is in the discretion of the court not to order a payment in money, but to order the children to provide for their father in their own house. The fact that the father has remained does not affect the case. Bachand & Bachand. M. Judg- ment reversing, 29 November, 188J. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 12 Rev. Leg. 38. Where by will certain property was bequeathed by a father to his son to supply him with aliments, and the pro- perty was declared to be insaisissable, the revenues are protected from seizure for the debts of the son ; and if the son hypothecated the property as his own, be might set up the condition of the will, to defeat the execution of the hypothecary creditor, by which the rents were seized in the hands of a tenant. But the wife and children of the debtor have no interest to urge this claim, and their intervention will be dismissed. Molson & Carter. M. Judg- ment reversing, 24 March, 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Ramsay, J., dis. Holmes & Carter. M. Judgment confirming, 24 March, 1883. Sir A. A. Dorion, C. I, Monk, Ramsay, Cross, Baby, JJ. Monk, Cross, JJ., dis. Rep. 6 Leg. News 372. 3 Dec. d'A. 279. Where a judgment of the Court of Queen's Bench in Appeal has been 429 MAINTENANCE MALICE 430 rendered, declaring that certain rents, which had been attached, were really " aliments " and " insaisissables " the party in whose favor such judgment has been rendered cannot obtain an order to execute the judgment pro- visionally, if permission to appeal from the judgment to the Privy Council has been granted. Molson & Carter. M. Judgment, 29 March, 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, .JJ. Rep. 7 Leg. News 292. The Court of Appeals will not grant an order to execute a judgment for aliments, during the delay granted to the tutor to obtain authorisation to ap- peal, that requirement having been neglected. If the judgment for aliments is executed, the order would be un- necessary, if not the Court would not feel justified in making a special order under the circumstances. Clement & Frances. M. Judgment, 26 Sep., 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Hep. 6 Leg. News 325. By husband to wife who has obtained separation The amount of will be re- gulated on the fortune of the husband and of the condition of life of the parties ; and where the amount award- ed by the Court of first instance is ex- cessive it will be reduced in Appeal. Gareau & Vincent. M. Judgment re- forming, June, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, J J. V. Akrears. A judgment allowing arrears of a pension alimentaire will be reformed, but without costs, the point not being taken by the Defendant. Kingsborough & Pound. M. Judgment, 2 March, 1878. Dorion, C. J., Monk, Ramsay, Tessier, 'Cross, JJ. Rep. 1 Leg. News 115. But in an action for aliments for an illegitimate child, against the father, the Court of Appeals will not disturb a judgment allowing aliments for five months before suit brought. M. Judg- ment confirming, 17 Dec, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 3 Leg. News 12. MAGISTRATE'S DISTRICT COURT.— Section 7, 37 Vic, oh. 8, does not give jurisdiction to the District Magistrate's Court to issue a saisie revendication for a value of over $50. The section is in these words : " The provisions of the " Code of Civil Procedure contained in " the third book thereof, shall apply in " like manner, to every Magistrates " Court and to the District Magistrates " holding the same, and the officers " thereof, except in so far as such pro- " visions are inconsistent with the pro- " visions of this act, or are such as can " only apply to the Superior Court, or " to the Appealable cases in the Circuit " Court, as if the words " Circuit Court " " or " Judge " meant and included res- " peotively the words " Magistrates " Court " or " District Magistrate." Blinn & The Magistrates Court of County of Brome. Judgment reversing, 19 March, 1877. Dorion, C. .1., Monk, Ramsay, Sanborn, Tessier, JJ. The Magistrates District Court has ju- risdiction in matters of rent. Bergevin & Rouleau et al. M. Judgment confirming, 21 September, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 23 J. 179. MAGISTRATE.— A magistrate cannot be condemned in damages for false im- prisonment, if he acted without malice, and with probable cause. Jlfarow & Bol- duc. Q. Judgment confirming, 4 March, 1875. A magistrate has a right to appear to contest the issue of a writ of prohibition. Pacaud &. Hemming. Q. Judgment con- firming, 5 June, 1874. MALICE Injurious communications which are malicious are not privileged ; and the fact that they were made un- necessarily will go far to establish malice. Waldron et vir, & White et vir. M. Judgment confirming, 30 June, 1886. Monk, Ramsay, Tessier, Cross, Baby, JJ. Where the libel complained of is only the answer to personal and inju- 431 MALICE MANDAMUS 432 rious attacks, no damages will be allowed. Beers & Bowkers. Judgment confirming, M. June, 1875. Dorion, C. J., Monk, Tasohereau, Eamsay, Sanborn, JJ. The use of the expressions dol and fraud in an action are not necessarily libellous. And an action to set aside a deed on the ground of dol and fraud is not libellous, if the allegations be made with probable cause and without maUce, although the party making the allegation fails in his suit also. A com- plaint to the council of the bar is not a libel even if the complaint be rejected, if it be made with probable cause and without malice. Barthe & Boudrealt. Judgment reversing Q. 7 June, 1 878. Sir A. A. Dorion C. J., Monk, Eamsay, Tessier, Cross, JJ. A medical practioner is liable in damages for maliciously publishing, in an action against his patient for fees for his services, the nature of the mala- dy for which such services were rend- ered. And malice will be presumed from the publication. H. & T., Q. Judg- ment reversing, 5 June, 1879. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, J.J. Eep. 5 Q. L. E. 267. 9. Eev. Leg. 579. 2 Leg. News 202. In a civil action for damages for verbal slander, the truth cannot be pleaded as a defence, unless it be that the occasion justified the statement, and that there was no malice. The change in the criminal law does not inci- dentally aftect the civil recourse. Fahey & Baxter. M. Judgment confirming, 11 Dec, 1883. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. In an action of damages for an accu- sation of perjury, it is not justification to say that the defendant swore in an affidavit in support ot a, petition en des- titution de tutelle that the assemblie de parents took place at the house of one Major, instead of at the office of the Prothonotary, where it really took place, and that the meeting was secret, and the nomination of the tutor frau- dulent, unless it appears there was a wilful intention to mislead ; and such intention will not be presumed,if there have been sufficient circuinstances surrounding the nomination of the tutor to justify suspicion of fraud, although fraud may not have been suf- ficiently established. Major & al. & Lalonde. M. Judgment confirming, 2 February, 1881. Sir A. A. Dorion, C.J., Monk, Eamsay, Cross, Baby, JJ. An action of damages will lie for false imprisonment where it appears the proceedings are malicious and without probable cause. Beaudoin & Boisaeau. Judgment confirming, June, 1875. Do- rion, C. J., Monk. Taschereau, Ramsay, Sanborn, JJ. There must be malice and want of probable cause to render a person Uable for arresting another under legal process. Beauchemin & Trudeau. Judg- ment confirming, Sep. 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. A creditor who arrests his debtor on capias, and has probable cause for so doing, is not liable in damages although the debtor can justify his proceedings. Lapierre & Gagnon, Q. Judgment reversing 7 December, 1877. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ, MANDAMUS. — A mandamus will not lie to compel a company to transfer shares of its stock to a subscriber who has not signed an acceptance of such shares. Sart & The Montreal Manu- facturing Co. Judgment confirming, 14 Dec, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Mandamus to School Commissioners requiring them to carry out ajudgment of the Superintendant of Education, to the effect that they should build a school-house on a piece of ground on which the old school-house stood and which was in their possession. The School Commissioners answed " qu'iU etaient dans Vimpossibilite deseconfor- mer ci la dite sentence, parce qu'Usna- vaient pas de titres d cette proprUtis, et qu'ils itaient exposes A Stre trovblls par lafabrique." Held, that this ans- wer was insufficient, and the School 433 MANDATE MANDATE 434 Commissioner were ordered to execute the sentence of the Superintendant. Delisee & Les Commissaires d'Ecole de St- Jean, Q. Judgment reversing, 7 Dec. 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Eep. 6 Q. L. B. 322, 1 Deo. d'A. 93. Mandamus will not lie to compel the Corporation of the Cure & MarguUliers to admit the complainant to his place in church. Rohillard & Le CurS & MarguUliers de St-Clement. M. Judg- ment confirming, 22 June, 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. (Ramsay, J., diss.) Eep. 8 Eev. Leg. 63. Mandamus will not lie to compel a commissioner, appointed to enquire under the 32 Vic, ch. 8 (Q), to furnish a detailed statement of the accusations affecting the relator, or to allow him counsel, or to allow him to cross-exa- mine witnesses, or to allow him to pro- duce witnesses. Belleville & Doucet. Q. Judgment confirming, 4 March, 1875. Eep. 1 Q. L. E., 250. No appeal lies to the Privy Council from a judgment quashing this manda- mus. The registrar will not be condemned on mandamus to efface the inscription of an hypothec in his books without the party making the inscription or re- presentative being made party to the proceeding. Robert & Eyland. M. Judg- ment confirming, 15 March, 1877. MANDATE Mandate is a contract by which a person, called the mandator, commits a lawful business to the ma- nagement of another, called the man- datary, who by his acceptance obliges himself to perform it. The acceptance may be implied from the acts of the mandatary, and in some cases from his silence. C. C. 1701. A factor or commission merchant is an agent who is employed to buy or seU goods for another, either in his own name or in the name of his principal for which he receives a compensation commonly called a commission. C. C. 1736. A factor whose principal resides in another country is personally liable to third persons with whom he contracts, whether the name of the principal be known or not. The principal is not liable on such contracts to the third parties, unless it is proved that the credit was given to both principal and factor, or to the principal alone. C. C. 1738. A deed of sale of rights to real estate ostensibly for vaUd consideration, fol- lowed by a conire lettre, in which it was admitted that no consideration was paid, and arranging how the proceeds of the sale of the property if any were recovered should be distributed, amounts to a contract of agency, and it may be rescinded by the principal if the agent does not use due diligence, subject to the expenses he may have incurred. Thurher ■& Holland. Judg- ment confirming that of C. of Eeview, 22 June, 1877. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. The right of an agent to sell real estate cannot be gathered from acts of agency of a different character. Stewart & White. Judgment reversing, 6 Sep., 1874. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. An agent who has only general powers of administration has not power to bind his principal by making a promissory note in the name of the principal. St. Jean & The Metropolitan Bank. Judg- ment reversing that of Superior Court, 18 September, 1874. Monk, Eamsay, Sanborn, Tessier, Belanger, JJ. Power of attorney to agent to sign notes for the business of principal. Query, has the Bank discounting such note to enquire whether really for in- terest of principal ? La Banque Natio- nale & Converse. Judgment reversing that of Superior Court, 29 January, 1878. A uthorisation to another to have re- pairs made to Defendant's house. Ques- tion of evidence. Lutle & Bell. Judg- 435 MANDATE MANDATE 436 ment reversing judgment in Review, 8 June, 1878. Dorion, C. J., Monk, Ram- say, Tessier, JJ., Cross, J. dis. An architect acting as an agent for a person having alterations and repairs made on a building, has no implied, au- thority to alter the contract. Millem & Shaw. M. Judgment confirming, March, 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, J J. The cessionnaire may contest the authorisation of an agent to collect money. Tousignant & Blais. Judgment, 8 September, 1880. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Commission of travelling agent. Ames & Fuller. Judgment, June, 1879. An agent cannot agree to take pay- ment of his principal's money in the supply of goods to persons in the em- ployment of the principal. So where an agent of an advertising Company agreed to take payment for advertise- ments in furnishings to persons in the employment of the Company, it was held, confirming the ju Igment of the Superior Court, that the Company could recover the amount from the party advertising, there being no ac- quiescence on the part of the Company in the arrangement. And it was not held to be evidence of such acquies- cence that the Company had accepted hons of their work-people on account. Ste-Marie et al. & The Railway & Newspaper Advertising Company. Judgment, 18 Sept. 1877. Dorion, C. J., Monk, Ramsay, Tessier, JJ. Power to sell One Henry Aylmer, junr., having been authorized by power of attorney to sell a mill and several lots of land belonging to the Respond- ent, sold the whole to Appellant in payment of his own debts. The present action was instituted by Respondent to have that sale set aside. Held : — That although Henry Ayl- mer, junr., was authorized to sell Res- pondent's property, he could not do so to pay his own debts, and that the sale to the Appellant was properly set aside. Maker & Aylmer. M. Judgment con- firming, 21 Dec. 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 1 Dec. d'A. 106. A party employed as agent to sell property cannot accept in payment his own indebtedness, and a sale for the consideration of the release of his own liability will be set aside as fraudulent Maker & Aylmer. M. Judgment, 21 December, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 1 Dec. d'A. 106. An agent entrusted with a sum of money, and who pretends it was stolen from him, must show by conclusive evidence that he was dispossesed of his charge, and without fault on his part, or he will be condemned to pay the money to his principal. Gravel & Mar- tin et al. Judgment confirming, June 1874. Taschereau, Ramsay, Sanborn, Loranger JJ. Confirmed in Privy Coun- cil. But if the principal admits that the money was stolen, or condones the negligence, he cannot subsequently oppose in compensation to a claim by his clerk for wages the money so lost. Thompson & Watson. Judgment con- firming, 15 June 1880. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Eep. 3 Leg. News 203. An agent who converts the money of his principal to his own use will be compelled to pay interest on it. Joseph & Phillips et al. Judgment confirming that of Sup. Court, March 1875. Eep. 19 J. 162. A commercial traveller whose prin- cipal has neglected to meet a draft drawn on him for the traveiling ex- penses of the former, according to agreement, may pledge the samples in his hands for necessary expenses. Ken- nedy & Cornell. Judgment, confirming that of the Sup. Court, 17 Deo. 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. A principal who agrees to pay a com mission to an agent for the sale of his 437 MANDATE MANDATE 438 manufactured goods, stipulating at the same time that the agent shall cease to manufacture the same article as he had previously done, and who secretly un- dersells his agents, cannot complain that the agent has not used due dili- gence, and therefore that he can re- flise to pay him his commission on the goods the agent did sell. The Joseph Hall Manufacturing Co. & McDougall. M. Judgment confirming, June, 1874. TaschereaUjRamsay, Sanborn, Loranger, JJ. The Appellant, projector of a joint stock banking company, engaged Res- pondent to obtain subscribers for which he was to receive ^ per cent, and it was expressly stipulated that " cette com- mission sera payable apris le premier versement." Few subscribers paid the .1st call, and the scheme was abandoned. Seld{ that the commission was due after the first call. Hubert & Barthe. M. Judgment confirming, 20 June, 1879. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, J J. Eep. 2 Leg. News 227. "Where a commission . merchant has done business for a principal to whom he has rendered regular accounts sales, charging certain commission which have never been questioned, it will be presumed that the principal has ac- quesced in those charges. Stevenson et al. & Henshaw. M. Judgment confirm- ing, Septembre, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. A principal is bound to know the transactions of his agent, and where on interrogations on faits et articles he alleges ignorance of his own business the interrogatory will be taken as confessed. Mc Greevy & Paille. Judgment confirm- ing that of Sup. Ct., 4 June, 1880. Sir A. A. Dorion, C. J. Monk, Ramsay, Tes- sier, Cross, JJ. A general agent authorized to pur- chase goods for his principal, binds his principal for the price, although the agent may have been in funds to pay for these. Poulin & Williams. Judg- ment confirming that of Sup. Ct., 15 June, 1877. Dorion, C. J., Monk, Ram- say, Sanborn, Tessier, JJ. A person acting publicly in Montreal as the general agent of an insurance company, whose chief place of business is elsewhere, will bind the company for such supplies as may have been fur- nished the agent in good faith for the purposes of the insurance basiness, al- though by the arrangement between the agent and the company, it was un- derstood the agent was to take a com- mission on the business done by him to cover all expenses. Morton et al. & The Niagara District Mutual Fire Ins. Co: Judgment reversing that of Sup. Ct., 13 March, 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. The principal who profits by a purcha- se made for his account by his agent, or clerk, is liable to the vendor although at the time of the sale,the vendor was igno- rant of the fact that the agent was not the principal, C8t£ & Paquet. Q. Judg- ment confirming, 7 September, 1875, Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. Read & Birhs, 2 L. C. J. 161. Ducasse & Beauyil,\Z L. C. R. 13. An agent purchased cattle as for himself, the owner not knowing he was transacting with an agent. The osten- sible purchaser could not pay, and the vendor learned he was the buyer for appellant, that he had no business of his own except that of a buyer for ap- pellant, and that appellant got the cat- tle and only settled with the ostensible purchaser by an account, which appear- ed to be that which might pass bet- ween a principal and agent and which appellant did not produce. Held, that the seller of the cattle had no recourse against the appellant. Q. Judgment reversing, 6 Dec, 1884. Sir A. A. Do- rion, C. J., Ramsay, Tessier, Cross,Baby, JJ. Ramsay, Baby, JJ., dissenting thought the course of business, bet- ween the ostensible purchaser and ap- pellant to which this transaction was not an exception, was that between a principal and agent, that McShane got the cattle directly and had not proved he paid for them. 439 MANDATE MANDATE 440 A transfer made by an agent fraudu- lently to the knowledge of the transferee will be set aside. Connolly & Connolly. Judgment confirming that of S. C, 18 Sep., 1877. Dorion, C. J., Monk, Ram- say, Tessier, JJ. The term " Commission Agent " is not synonymous with "factor." The possession or control of the goods of the principal constitutes the agent a factor. Crane et al. & Nolan: Judg- ment reversing, 20 Feb., 1875. Dorion, C. J., Monk, Taschereau, Eamsay, San- born, JJ. Eamsay J., dis. Eep. 19 J. 309. A commercial agent acting for per- sons in the United States to sell flour, and not having the flour in his posses- sion or subject to his control, is not a Factor or a Commission Merchant ; and consequently he is not personally liable in damages for the non-delivery of the flour sold in the name of their princi- pal. Crane et al. & Nolan. Judgment reversing that of Sup. C. Dorion, C. J., Monk, Tascherau, Sanborn, JJ., Eam- say, J., diss. Reported ] 9. J. 309. The agents of a foreign principal, re- siding abroad and who is not declared, will be held personally liable on a con tract signed by them in their own name, though the contract showed their quality of Commission Agents, and it was not known to the other party that there were selhng goods to a mill from foreign principals. Evans & McLea, M. Judgment reversing, 2 Feb., 1881. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Eep. 4. Leg. News 76. 1 Dec. d'A. 201. Commission agents whose principals reside abroad held personally liable on contract signed by them in their own name, though the contract showed their quality of Commission Agents, and it was known to the other party that they were selling goods to arrive from foreign principals. Evans & McLea et al. M. Judgment reversing, 2 Feb., 1881. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Babv, JJ. Eep. 4. Leg. News 76, 1 Dec. d'A. 201. Where a contract is made with a fo- reign house the agent through whom the business is carried on cannot sue in his own name, as a factor, although the goods may have been delivered by him. Doutre & Dansereau. M. Judgment re- versing, 17 Dec, 1879. Dorion C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 3 Leg. News 19. Where there is a written contract between a foreigner and a party in Ca- nada, the agent of the foreigner to de- liver the goods cannot sue for the price of them in his own name. Doutre & Dansereau. Judgment reversing that of Sup. C, 17 Dec, 1879. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Le facteur ou agent d'un principal residant en pays etranger est seul res- ponsable, personnellement, envers les tiers. Les personnes employees par ce fac- teur ou agent, qui est leurmandant, ne sont pas responsables, personnellement, des transactions faites au nom de leur mandant. Dixon & Etu. M. Judgment reversing, 21 May, 1884. Sir A. A. Do- rion, C. J., Monk, Eamsay, Cross, Baby, JJ. Eeported 7 Leg. News 213. A lot ot iron shipped to the port of Montreal on bill of lading, endorsed in blank, by which the master promised to deUver the goods on payment of freight. One Henderson, agent of Biok- ford the consignee for the purpose of receiving the goods, received money to pay the freight. The master dehvered the goods without exacting the freight and Henderson died insolvent. Held, confirming the judgment of the Superior Court, that the master could not maintain action against Bickford for the freight, to whom he had not given credit, Sep., 1875. Fletcher & Bickford. Dorion, C. J., Monk, Tasche- reau, Eamsay, Sanborn, JJ. Bates, a merchant in England dealt with one Lear in Montreal, having doubts of Lear's solvency when about to fill an order from Lear, Bates delivered the goods to one Arnold in England desiring him to use his dis- 441 MANDATE MANDATE 442 cretion as to their delivery, the invoice being made in Lear's name. Arnold sold the goods as being Bates goods to Williamson and Lear became insolvent. WUliamsoa did not pay for the goods and being sued for the price, he pleaded that the goods were not Bates goods but Lear's, that Arnold was the agent of Lear, and that delivery to Arnold was delivery to Lear. Held, con- firming judgment of Superior Court, that Arnold was the agent of Bates, and that Williamson had no interest to raise the question. The power of an agent to sell on commission may be revoked at any time, subject to the rights of the agent. Dillon et al, & Borihwieh. Judgment confirming, that of Superior Court, 15 June, 1880. Dorion, C. J., Monk, Eam- say, 'I?essier, Cross, JJ. Where the power of an agent is re- voked before dehvery, a sale begun cannot be completed by the agent unless there has been an acceptance by the purchaser which binds him. Lynn & Niven. M. Judgment reversing, June, 1874. Taschereau, Ramsay, San- bom, Loranger, JJ. The power of the agent may be re- voked at any time by the principal. The agent who alleges a sale cannot prove it without a memorandum in writing. Lynn & Cochrane et al. Judg- ment reversing, those of the Superior Court and Court of Review, June, 1874, Taschereau, Ramsay, Sanborn, Loran- ger, J J. Revendieation in hands of. — L' Ap- pelant, agent de I'lntime a Montreal, devait recevoir une conmaission de 10 pour cent sur toutes les marchandises que celui-ci lui expedierait de France. Une grande partie de ces marchandises fut vendue par 1' Appelant qui ne fit aucune remise d'argent a I'lntime, et celui-ci fit saisir-revendiquer toutes celles qui n'avaient pas encore ete ven- dues. Jug&: — Que. sous les circonstances I'lntime etait bien fonde a reclamer les eflfets qu'il avait expedies a son agent. de Beaufort & Lureau. M. Judgment confirming, 24 March, 1883. Rep. 3 Dec. d'A. 163. ■ The evidence of an agent after his mandat is at an end will not be con- sidered as an admission by the Defend- ant, and so where limitation was pleaded, and the Plaintiff pretended that there was a recognition of the debt and a promise to pay it, the evidence of the agent of the former Defendant will not be admitted to prove such recognition, (1235 C. C.) Pinsonneauli et al, & JDesjardins. Judgment reversing that of Superior Court, 17 Dec, 1879. And an agent who alleges a sale can- not prove it without a memorandum in writing. Lynn & Cochrane et al. Judg- mens, June 1874. Taschereau, Ramsay, Sanborn, Loranger, JJ. In August 1870, Rutherford Bros., merchants in Newfoundland, shipped on board the " Jane," at Labrador, a cargo of herrings consigned to Respon- dents at Montreal. On the 23rd August, the shippers wrote to Respondents ad- vising them of shipment on account of Ridley & Sons, directing Respondents to sell the herrings and place the pro- proceeds to credit of Ridley & Sons, to whom account sales were to be sent, and Ridley & Sons were to arrange with Rutherford Bros, for their payment. This letter was accompanied by a bill of lading acknowledging that the her- rings were shipped by Ridley & Sons and that they were to be delivered at Montreal to Respondents. The letter, the bill of lading came intorespondents' possession simultaneously with the ar- rival of the "Jane " at Montreal in the month of November. On the 30th August, Rutherford Bros, again wrote to Respondents repeating the directions of the letter of the 23rd August, and requesting Respondents to insure. On the 16th September, Res- pondents acknowledged the letter of the 30th August, said they had insured and agreed to credit Ridley & Sons as directed. 443 MANDATE MANDATE 444 On the 27th September, Kutherford Bros, wrote to Eespondents acknow- ledging Respondents' letter of the 16th, and saying that they had drawn on Respondents for £76.0.2. It is not told why. On the 23rd September, Respondents advanced Ridley & Sons *12,000. On the 13th October, Rutherford & Bros, telegraphed to Eespondents cancelling their previoHS instructions, and desiring then to give them credit for the her- rings. On the 14th October, Eespondents acknowledged the receipt of the letter of the 27th September and of the tele- gram and they agreed to pay the draft of £71.0.2 at maturity. They were silent as to the rest. On the, 4th November, the " Jane " arrived at Montreal. By this time Ru- therford Bros, had failed and Appellant as assignee came to look after the es- tate. Appellant contends that he got pos- session of the cargo at Montreal by consent of Respondents, who took then back from Appellant, agreeing to sell it for the benefit of the estate so as to retain the commission. If this be proved must succeed ; but on the other hand it is considered that there was no men- tion of Respondents' rights, and without the existence of a contract there was no evidence of Stabb having even had possession of the cargo of the " Jane." This gives rise to a question of law, namely whether Rutherford Bros, could change his instructions after they had been acted upon by Respondents. The majority of the Court was of opinion that, under the circumstances, the estate of Rutherford Bros, was the owner of the herrings, which had come into possession of Respondents after the failure of Rutherford Bros. Stabb & Lord ei al. M. Judgment reversing, March, 1875 Dorion, C. J., Monk, Tas- chereau, Ramsay, Sanborne, JJ., Monk, Ramsay, JJ. dissenting were of opinion that no new contract was proved bet- ween Respondents and Stabb at Mont- real, — that there was nothing but an understanding that Respondents should sell and get their commission, in any event, leaving the question of owner- ship to be decided later, — that the ship- ment to Respondents was by Ridley & Sons, and that Rutherford Bros, could not change the destination of the cargo, in transitu, or the appUcation of its proceeds to the detriment of the Res- pondents. " Nemo potest muiare const- liam suum in alterius injuriam." They were also of opinion that the silence of Respondents in answering the telegram of the 13th October did not afieot the question, as Respondents were then required, and his silence did not and could not damnify the shipper. Persons doing business generally as brokers and commission merchants sold flour, to arrive from Chicago, for a principal resident there. The name of the principal was declared in the con- tract note, and the agent signed as "commission agents." Held : — That the agents, not having the goods in their possession or under their control, could not be considered " factors under article 1738, C. C, but were merely brokers." The term " commission agent is not synonymous with "factor". The definitions of "broker" and " factor " in article 1736 C. C, are not to be interpreted literally as establish- ing a strict rule, but as general com- prehensive definitions, subject to inter- pretation and extension according to the ordinary distinction applied to these two classes of agents. The possession or control of the goods of the principal by the factor distin- guishes him from a broker. This dis- tinction is the real foundation of the exceptional liability which attaches to a factor when contracting for a foreign principal. The broker, like other mer- cantile agents, incurs no personal liabi- lity, if he does not exceed his instruc- tions; the factor, on the contrary, acting for a foreign principal, is person- ally responsible as if he were principal. 445 MANDATE MANDATE 446 Althougli the personal liability of the factor or commissionnaire is by law presumed when he acts for a foreign principal, yet he may always free him- self from such liability by the contract itself, or destroy the legal presumption by the circumstances attending the transaction. Crane ei al. & Nolan. M. Judgment reversing, 20 February, 1875. Dorion, C. J., Monk, Taschereau, Kam- say, Sanborn, JJ. Ramsay, J., dis. Ee- ported 19 J. 309. A person holding property as trustee under a deed of conveyance from an insolvent firm is by law entitled to eiter en justice for the protection of the rights conveyed to him by such deed ; and accordingly in the present case it was held that such trustee was entitled to plead in his own name to an action of revendication based on a pretended sale from the insolvents to the Plaintiff. Though emplacement is no longer necessary to the validity of a sale, yet where there is no deplacement fraud and simulation are easily presumed ; and where a pretended sale was a mere contrivance intended to obtain, under color of a sale, a security upon the effects, and thus avoid the delivery of possession which is essential to the vaUdity of a pledge, it was held inoper- ative. Moffat & Burland, M. Judgment reversing, 27 May, 1884. Sir A. A. Do- rion, C. J., Monk, Eamsay, Cross, Baby, JJ. Reported 4 Dec. d'A. 59. 7 Leg. News 182. Reversed in Supreme Court. USup. Court Rep. 46. The plaintiffs were trustees under a deed of assignment from insolvents, with authority to carry on the business until it should be wound up, which was to be completed within two or three years. The business was not wound up in that time, but was carried on by the plaintiffs on an extensive scale with funds raised on their own credit, and large losses were incurred. Held, by the majority of the Court, in an action by the plaintiffs against creditors who had signed the trust deed, to oblige them to repay the amount of such los- ses, that the plaintiffs were not, under the circumstances, agents of the credi- tors, so as to make the latter liable for the result of their operations. Ohinic et al. & Oarneau. Q. Judgment confir- ming, 7 May, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 7 Leg. News,210. Le mandataire, qui regoit de son mandant une somme d'argent a remet- tre a un tiers pour eteindre une obli- gation du mandant vis-a-vis de ce tiers, doit, si I'obligation a taux eleve, faire diligence pour executer son mandat, sans quoi il sera tenu au paiement de cet interet pour tout le temps qu'il aura neglige de faire remise des sommes d'argent dont il etait porteur pour le tiers. JDulac & Bolduc. Q. Judgment confirming, 8 Oct., 1885. Sir A. A. Do- rion, C. J., Monk, Ramsay, Cross, Baby, JJ. Eamsay, J., dis. Rep. 14. Rev. Leg. 359, 8 Leg. News 370. (Following Broione et al. vs. Pinson- nault, 3 Supreme Court Reports 102.) An assignment by an insolvent debtor of his estate for the benefit of his cre- ditors, does not confer upon the as- signee the right to pursue or defend in his own name the actions accruing with regard to the estate and property assigned. Reynar & Porteous et al. Q. Judgment reversing, 8 Oct., 1885. Sir A. A. Dorion, C. J., Monk, Ramsay, Baby, JJ. Ramsay, J., dissenting as to reasons, was of opinion that the legal title was not in Porteous, differing in that from the case of Burland & Mof- fat. In the case of Browne et al. & Pinsonneault the question was not adju- dicated upon by this court. (1) Appellant & Respondent are banks, — the former a saving's bank, and the latter an ordinary banking institution. On the 13th Sep., 1873, C, Respondent's cashier obtained a loan in his own name from Appellant, on the security of shares of the Respondent bank, stand- ing also in his own name. These shares (1) The Supreme Court did adjudicate upon the two questions, which was not abso- lutely necessary. This according to a learned and polite dictum reproiiuced in Cassel's Di- gest, p. 38, is " extrajudicial and unwarran- ted." 447 MANDATE JIANDATE 448 declining in value, C. substituted there- for notes the property of Respondent, intimating that the loan was made to Eespondent, and not to himself per- sonally. On the 23rd June, 1875, the transaction was entered in the books of Respondent as being a transaction of Respondent and not of C. personally and on the 29th July, 1875, the pass- book between Appellant and Respon- dent was altered in accordance with the same pretension. Held: — ^That a principal may, by subsequent ratification, or even by tacit acquiescence, render himself responsi- ble to a third party for the act of his agent in excess of his authority, and that in this case the Respondent, being well aware of Appellant's pretension, and having acquiesced in it until 5th of August, 1876, and obtained other loans from the Appellant, must be held to have ratified the act of its agent C, and become bound thereby. La Ban- que d'JEpargnes de la Cit£ et du Dis- trict de Montreal & LaBanque Jacques Cartier. M. Judgment reversing, 25 January, 1886. Sir A. A. Dorion, C. J, Ramsay, Cross, Baby, JJ. Rep. M. L. R. II Q. B. 64. 9 Leg. News 86. Where an agent acting for the gov- ernment discloses his agency, he is not personally liable until he has received funds to pay the amount due. It is not necessary, to make the agent Hable, that he should have received a sum of money to pay the particular claim sued for ; it is sufficient if he has received money to pay accounts of that kind. But, held, in the present case, that the evidence of his having funds was insuf- ficient. Quesnel & Biland. Q. Judgment reversing, 5 February, 1886. Monk, Ramsay, Tessier, Cross, Baby, JJ. Tes. sier. Cross, JJ., dissenting. Rep. 9 Leg. News 105. 12 Q. L. R. 129. The agent of an insurance company has no authority to accept an insurance and give a receipt for his indi- vidual debt to the person insuring, and such act on his part will not bind tbe company. The Citizens Insurance Co. & Bourguignon.. M. Judgment re- versing, 25 January, 1886. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. M. L. R. II Q. B. 22. 9 Leg. News 85. A. acting for B., his undiscovered principal, sold to C. a cargo of coal to arrive, C. to have the option of taking the coal at the weight given in the bill of lading or of having it re-weighed at seller's expense. C. accepted the coal without re-weighing, but afterwards weighed it in his own yard, without notice to the seller, and mixed it with other coal. Held, that B. the undis- covered principal, might sue on the contract in his own name. That C, by tendering in his second plea the price of the coal admitted to have been re- ceived, acknowledged that the action had been properly brought by B. The Canada Shipping Co. & The Victor Hudon Cotton Co. M. Judgment rever- sing, 24 March, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. The Chief Justice and Ramsay, J., dis. Rep. 5 Leg. News 302, 2 Dec. d'A. 356. Where an agent in makinga contract fraudulently suppressed a material fact within his knowledge, his principal can- not profit by the fraud, although he was himself ignorant of the fact sup- pressed, alterius circumventio alii non prcebet actionem, de vig. in-2, 49. And so where shares were sold, pur- porting to be shares of an incorporated company, when, in fact, no such cor- poration was in existence, the error into which the purchaser was led was sufS- cient to annul the contract. Chretien & Crowley. M. Judgment confirming, 19 January, 1882. Rep. 5 Leg. News 262, 1 Dec. d'A. 385. Under the terms of the following let- ter the signer intended to make him- self, and is personally liable : Montreal, May 11th, 1877. Messrs. Ritchie & Borlase, Gentlemen, We, the undersigned, acting as di- rector and secretary of the Montreal Omnibus Company, hereby agree to see the account that Brown and St. Charlee 449 MAKGUILLIEE EN CHARGE MARRIAGE CONTRACTS 450 have against the above Company duly settled, provided the said account shall be made out and agreed upon as either the Court or arbritators appointed shall decide. (Signed) R. Kerr, As President of the Montreal Omnibus Company. Although the above letter was evi- dently incomplete, having been intend- ed to be signed by more than one indi- vidual, yet the signer waived the right he might have had to treat it as an incomplete document, by signing and delivering it to the Plaintiff's agents. Kerr & Brown et al. Judgment con- firming, 14 Dec, 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ . , dis. 23 i. 227. The agent of an insurance company cannot bind the company by agreeing to hold a party insured for board and lodging he was to furnish the agent. But where the agent made a note for the insured which he gave him to under- stand would be liquidated by the Agent's board, and gave it to the com- pany who held it as cash, the company will be liable in case of a loss by fire. The Ottawa Agricultural Company & Bouthillier alias Boutiqu4. Judgment confirming, 22 September, 1874. Dorion, C. J., Monk, Ramsay, Tessier, J J. Cross, J., dis. Rep. 2 Leg. News 394. MANDATOR.— u. Interest. MARGUILLIER EN CHARGE.— The ac- tion to compel the Marguillier soriant de charge to render an account, may be brought without the authorisation of the parishoners, contribuables, as being a suit necessary for the recovery of the ordinary revenues of the Fabrique. This case is therefore within the excep tion of art. 34 of the arrSt of St Jean en gr&ve, whereas the case of Yerch&res & Terchires is within the rule of the article. In a case like this it is the duty of the new Marguillier to proceed to re- cover by suit, apr&s n4anmoins en avoir communique au bureau ordinaire, d peine de demeurer en son propre et vrai 15 nom, garant et responsable de tous les ^vinements. On the merits it is no answer in the mouth of the old Mar- guillier to say that he cannot get access to the books, and therefore to ask the dismissal of the action. Le Cur4 et Marguilliers de Beauharnois & Rohil- lard. M. Judgment reversing, 16 March, 1877. Monk, Ramsay, Sanborn, Tessier, JJ. Usage as to meetings to appointmar- guilliers — II n'a pas ete prouve que, d'apres I'usage dans la paroisse de St. Thomas de Montmagny, que les pa- roissiens ne pouvaient elire comme MarguiUier que I'une des trois person- nes proposees par le Marguillier sortant de charge, sans pouvoir eux-memes en proposer d'autres. En supposant qu'un tel usage aurait ete prouve il ne pourrait prevaloir sur le droit que les paroissiens ont, en vertu de la loi, d elire I'un d'entr'eux pour etre marguillier sans aucune restriction quant a leur choix. Moreau Collin. Q. Judgment reversing, 5 December, 1874. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. Rep. 19 J. 26. MARRIAGE CONTRACTS.— A donation by contract of marriage of aU the movea- bles belonging to the deceased at the time of his death becomes inoperative if the donor sells all his movables before his death. Cahill & Hachette et al. M, Judgment confirming, 15 March, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, JJ. Rep. 7 Rev. Leg. 518. The emploie of money stipulated propre of the wife by marriage contract, must be made incontinently at the ac- quisition of the property, and the de- claration that the husband employs the money on property already purchased by him is only a vente d4guis4e. Dionne & Boss, Q. Judgment confirming, 3 March, 1881, Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, J J. The separate property of the wife in the common habitation of the husband and wife is not property in possession of the husband. The City of Montreal et al. & Greene et vir. M. Judgment 451 MARRIAGE CONTRACTS MARRIAGE CONTRACTS 452 confirming, 15 May, 1879. Sir A. A. Do- rion, C. J., Monk, Ramsay. Tessier, Cross, JJ. A husband. Defendant in a suit to authorize his wife, is not in the record so as to be bound personally by the judgment as regards his separate and individual interest. Gomte & LagacS et vir. M. Judgment 23 January, 1884. Sir A. A, Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. La saisie de bien meubles, trouves au domicile d'un debiteur, ne pent etre annulee parune opposition del'epouse, alleguant qu'elle est separee de biens d'avec son mari, et que les effets saisis lui appartiennent, si la preuve etablit que les meubles saisis, bien qu'achetes partie par son mari au nom de sa femme et partie par celle-ci, ont tons ete payes des deniers du mari. L'abandon fait a telle opposante par trois des creanoiers du debiteur saisi, de meubles appartenant a celui-ci, ne pent faire oette opposante proprietaire des dits meubles. Tardif & Campbell et at. Q. Judgment confirming, 6 May, 1886. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, .JJ. Eep. 14 Eev. Leg. 434. A wife commune en biens with her husband, may, during his lifetime, validly renounce to a right of usufruct reserved to her in the event of her surviving her husband, on property possessed by him subject to a substitu- tion in favor of their children. The fact that on her husband's death she renounced to the community will not affect the validity of the renunciation of her usufruct, which does not come within the prohibition of C. C. 1301. The jurisprudence on the subject of art. 1301 (1) reviewed. Langlois & Langlois. Q. Judgment reversing, 4 February, 1886. Monk, Ramsay, Cross, Baby, JJ. Rep. 9 Leg. News 90. (1) A wife cannot bind lierself either with or for her husband otherwise than as being common as to property ; any such obligation contracted by her in any other quality is void and of no eftect. 1301 C. C. So where a widow claimed her dower on real estate mentioned in her mar- riage contract, and charged with dower' which had been exchanged for other real estate, with her consent, her action against the d^tenteur will be dismissed. Girnuard & Trudel. M. Judgment con- firming, 25 January, 1884. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 4 Dec. d'A. 39. When the surviving husband has not made an inventory within three months of the decease of his wife, there is con- tinuation of community between him and his children. Such continuation of community may be stopped by an inventory made in due form and closed in presence of a legitime coniradicieur. CdU & C6U. Q. Judgment reversing, 8 Sep., 1877. Do- rion, C. J., Monk, Eamsay, Tessier, JJ. Monk, J. dis., probably owing to cer- tain irregularities in making the in- ventory in the particular case, and not on the general principles enunciated here. A tripartite community of property is dissolved by the death of the second wife if she dies without leaving any mi- nor children, and the third share of the second wife in an immoveable, pur- chased during the existence of such tripartite community, is a.propre of the issue of such second marriage. That the surviving husband has no right to alienate the third share of such immoveable after the death of the se cond wife, and the purchaser of the rights of the issue of the marriage, of age at the time of the mother's death, has a right to bring his action oi par- iage of said immoveable. Francmm & Mathieu. M. Judgment reversing, 23 December, 1876. Dorion, C. J., Monk, Eamsay, Sanborn, Tessier, JJ. Rep. 21 J. 288, 8 Eev. Leg. 665. As the conquets of the previous com- munauU do not fall into the second communauU with the second husband, it follows that such property is not con- veyed by a bequest in these words: " tons les meubles et immeubles dipen- 453 MARRIAGE CONTRACTS MARRIED "WOMEN 454 dant de leur communauU et acquis par eux conjointement, de quelque quality quHls soient, en quelque lieu qu'ils se trouvent et situ^s pour par lui en f aire et disposer, etc" Pilon & Brunei et al. M. Judgment reversing, 27 May, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. The husband has no power to hypo- thecate an immoveable conquet of the community, after the dissolution of the community, and a hypothec given by him at that time can only affect his half of the property. The heirs at-law of the deceased wife are seized by operation of law of her share in such immoveable. (Art. 607 C. C.) Dallaire & Gravel. M. Judgment reversing, 21 Dec, 1878. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 22 J. 286, 2 Leg. News 15. A husband may execute a valid hy- pothec in favor of his wife on his im- moveable property, in lieu of a hypo- thec which she had by her contract of marriage, to secure a sum of money brought by her at the marriage and re- served as propre by her contract of marriage. La SociktS de construction ■ Moniarville & Cousineau et vir. M. Judgment confirming, 3 Feb., 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. Rep. 3 Leg. News 329. A right given to an intended wife by a contract of marriage, in case she sur- vive her intended husband, to the legal interest of one-third of the property and assets belonging to his " succession and estates," cannot be exercised during the lifetime of the husband, against the property and estates assigned by him under the Insolvent Act of 1875. Work- man & Benny et al. M. Judgment con- firming, 5 Feb., 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 23 J. 324, 2 Leg. News 82. Hypothec of property o/ community after its dissolution. — The heirs-at-law of the deceased wife are seized, by operation of law, of her share in such immoveable, and a husband has no power to hypothecate a conquet of the community after its dissolution, except for his own half of the property. MARRIED WOMEN AutJwrisationof, to appeal — A married woman who ap- peals must be authorized, and an appeal brought without authorisation will be rejected. St. Jean S The Metropolitan Bank. M. Judgment rejecting appeal, September, 1874. Monk, Tasohereau, Ramsay, Sanborn, JJ. Where goods are sold to the husband and credit is given to him, his wife se- parated as to property will not be held liable. iThe case of Hudon et al. & Mar- ceau, referred to 23 J. 45.) Faquette d- Guertin et al. M. Judgment confirming, 14 June, 1879. Sir A. A Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 2 Leg. News 210. A wife s£par4e de Mens is not liable for the price of necessaries furnished to the husband, and on his credit. Nor can she become liable by en- dorsing his promissory note given in payment of such effects. Bruneau & Barnes et vir. M. Judgment reversing, 22 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, JJ. Monk, J. dis. Rep. 3 Leg. News 301, 25 J. 245. Can a married woman bind herself with her husband and how ? Can she renounce to her reprises ? — These questions were raised in Panel & Samel but not decided. Q. December, 1874. Dorion, C. J., Monk, Ramsay, Sanborn, McCord, JJ. A married woman, authorized by her husband, can bring an action of dam- ages in her own name for personal wrongs. Dame Sarah Ann Waldon et vir, & Dame Maria White et vir. Judg- ment confirming, 30 June, 1886. Monk, Ramsay, Tessier, Cross, Baby, JJ. A married woman is liable on an obligation entered into by her with a party in good faith to borrow money, although the money be employed to pay her husbands debts. Martel & Prince. Q. Judgment, 6 March, 1877. 455 MASTER AND SERVANT MASTER AND SERVANT 456 Monk, Ramsay, Sanborn, Tessier, JJ. Monk, J., dis. Eep. 8 Rev. Leg. 138. La femme mariee sous le regime d'exclusion de communaute, peut em- prunter, avec I'autorisation de son mari, et que I'obligation qu'elle con- tracte pour le capital et les interets n'est pas prohibee par I'article 1301 C. C. Boss & La SociiU Permanente de Construction. Q. Judgment confirming, 4 December, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 12 R. Leg. 130. MARITIME LIEN.— An action brought to recover the price of cord wood fur- nished in eighteen hundred and seventy six, to the Ottawa and Rideau Forward- ing Company, in Plaintiffs' declaration mentioned, at difierent times during the season of navigation of that year, and not for the last voyage of either of the vessels mentioned in the said de- claration, will be dismissed,the privilege under art. 2383 s. 5, C. C, being only for supphes for last voyage and not for the season. Owens et al, & The Union Bank of Lower Canada. M. Judgment confirming, 3 February, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. MARRIAGE L ICENSE.— i). Erocedtjee. MASTER AND SERVANT.— The prm- cipal kinds of work which may be leased or hired are : 1. The personal services of workmen, servants and others ; 2. The work of carriers, by land and by water who undertake the convey- ance of persons and things ; 3. That of builders and others who undertake work by estimate or con- tract. 1666 C. C. The contract of lease or hire of per- sonal service can only be for a limited term or for a determinate undertaking. It may be prolonged by tacit renewal. 1667 C.C. It is terminated by the death of the party hired or his becoming without fault unable to perform the services agreed upon. It is also terminated by the death of the party hiring in some cases according to circumstances. 1668 C.C. In an action for wages by domestics or farm servants in the absence of written proof the master may offer his oath as to the conditions of the engage- ment, and as to the fact of the payment, accompanied by a detailed statement. If the oath be not offered by the master it may be deferred to him, and is of a decisory nature as regards the subjects to which it is limited. 1669 C. C. The rights and obligations arising from the lease or hire of personal ser- vice are subject to the rules common to contracts. They are also regulated in certain respects in the country parts by a special law and in the towns and villages by bye laws of the res- pective municipal councils. 1670 C. C. Le maitre qui renvoie son engage, sans raison suffisante, sera condamne a lui payer des dommages egaux aumon- tant perdu par I'engage pendant le temps pour lequel il n'a pas ete em- ploye, et aussi a la difference des gages par lui gagnes ailleurs. Robinson & McMillan. M. Judgment confirming, 24 April. 1885. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk J., diss. Rep. 13 Rev. Leg. 565. An employer is liable for any want of care on his part by which his servant is injured ; and, therefore, if he engages an unskilled or careless person to con- duct his work, and owing to the want of skill or care of the person so em- ployed, another workman is injured, the employer is responsible. But in or- der to hold the employer responsible, it must be clearly established that the negligence or want of skill of the fellow workman caused the accident by which the damage was occasioned. So, where two workmen were engaged in an ope- ration not shown to be hasardous, and an explosion occurred which killed the superior workman and injured the plain- tiff who was assisting the other, it was 457 MASTER AND SERVANT MASTER AND SERVANT 458 held that the workman injured had no right of compensation from the em- ployer, in the absence of any evidence as to the case of the accident, or that the employer was in fault by having hired a careless or unskilful vporkman. The St. Lawrence Sugar Refining Company & Campbell. M. Judgment reversing, 21 March, 1885. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. M. L. R. I. Q. B. 290. 4 Dec. d'A. 186. The defendants were constructing a building in the City of Montreal, and at their solicitation, men (of whom the plaintiff was one) were sent by the cor- poration to introduce water from the street by a pipe connecting with the building. This could not be done with- out working inside as well as outside. A man passing along the wall, above where the Plaintiff was working at the pipe hole, loosened and started a brick in the wall, and the brick, falling down, injured the Plaintiff A hammer had fallen previously and warning had been given to the men above. Held: — That the burden of proof was on the Defendants to rebut the presumption of negligence, and this not having been done, the Defendants were liable. Evans & Monette. M. Judgment confirming, 27 January, 1886. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Ramsay, Cross, JJ., dissenting. Rep. M. L. R. 2 Q. B. 243 9 Leg. News 366. M., the husband of plaintiff, was em- ployed by the Defendant, master of a steamship, to assist in unmooring the steamship then lying at the wharf at Montreal, and about to put to sea. While M. was standing ready to cast off the stern hawser from the post at which it was fastened, the hawser snapped, and M. was fatally injured. Held: — That the presumption was that the rope was insuflBcient for the purpose for which it was being used, or that the ship was unskilfully handled, and in either case, the master of the ship was responsible. Corner & Byrd, M. Judgment confirming, 27 January, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Ramsay, Cross, JJ., diss. Rep. 9 Leg. News 374. An employer is responsible for inju- ries to his employees resulting from defects in the tackle, machinery or appliances provided for their use. Tackle used in work such as loading or unloading a vessel ought to be amply sufficient to withstand any strain that is likely to be put upon it by ordinary unskilled laborers ; and where tackle breaks, without any extraordinary strain upon it, it will be presumed to be in- sufficient, though it may have been used previously for the same purpose without accident. A laborer engaged in work such as loading or unloading a vessel is only bound to use ordinary care, and the employer is not relieved from respon- sibility by showing that if the laborer had used the greatest skill and care the accident might not have happened. Ross & Langlois. M. Judgment con- firming, 21 January, 1885. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. M. L. R., I. Q. B. 280, 4 Dec. d'A. 187. Par un engagement par ecrit entre I'appelante Mile O'Keefe et I'Intime en cette cause, celui-oi s'est oblige a fournir de I'ouvrage (knitting) a I'ap- pelante pendant I'espace de neuf mois depuis le 4 juin 1883. L'ouvrage n'a pas ete fourni, et I'appelante reclame des dommages de I'Intime pour inexe- cution de contrat. Jug4: — lo. Que I'eorit en question ne mentionnant pas si I'Intime devait apporter I'ouvrage chez I'Appelante ou si I'Appelante devait aUer le cheroher a I'etablissement de I'Intime, I'Appe- lante etait tenue, d'apres I'usage gene- ralement suivi dans de semblables oon- trats d'aller le chercher chez I'Intime, en temps utile, et que, comme elle ne s'est pas conformee a cet usage, elle n'a droit a aucuns dommages de I'In- time. 2o. Que dans I'especelapreuve testi- moniale serait illegale pour suppleer a 459 JIEASUKE OP ACTIONS MINING EIGHTS 460 cette lacune du contrat. 0''Keefe ei vir., vs. Desjardins, M. Judgdment con- firming, 21 January, 1885. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Eep. 4 Dec. d'A. 300. MATRIMONIAL ADVANTAGES — The sequestration of the property of the community during the pendency of a suit for separation consented to volun- tarily by the husband, is not an ad- vantage to the wife, and the husband will not be allowed to have it set aside as such. Crosbie & Blaiklock. M. Judg- ment confirming, 27 January, 1876. Do- rion, C.J., Monk, Eamsay, Sanborn, Tes- sier, JJ. Monk, Eamsay, JJ. dis. MEASURE OF ACTIONS— Samuel S. Campbell gave a mortgage for $ 2.^,000 to Lucy Jane Stevens, his wife, for the price of the stock in trade belonging to her in a partnership which had existed be- tween her and one Charles Hagar, in- cluding from $10,000 to $11,000 interest on said price. Campbell, subsequently, gave a mortgage on the same property ior $15,000 to Walter Bonnell ; which mortgage, Bonnell transferred to the Appellant as collateral security for a note of $26,000, discounted on the same day, the bank receiving at the same time other collaterals to secure the pay- ment of the note. Campbell subsequently gave a mort- gage to Brackley Shaw for $45,000. Lucy Jane Stevens became a party to the deed and granted to Shaw a priority of hypothec over her own. The action is by the Appellants as creditors under the transfer of the hy- pothec from Bonnell, to set aside and annul, as illegal and void, the hypothec given by Campbell to his wife, and the priority given by the latter to Shaw. As the Appellant had been paid the full amount of the note of $26,000 for which the hypothec of $15,000 had been transferred as collateral security only, the Appellant had no interest to contest the hypothec given by Campbell to his wife, and the priority given by the lat- ter to Shaw. The other questions raised were not decided by the Court. But Dorion, C. J., held the hypothec given by Campbell to his wife was, under the circumstances, a transaction forbidden between husband and wife, and therefore null and void, and that the transfer by Bonnell to the bank of an hypothec to secure a note discounted on the same day, was null and void, as being contrary to the banking act 34 Vict., C. 5, S. 40, which forbids banks to advance on the security of real es- tate. The Bank of Toronto & Ferkins ei al M. Judgment confirming, 25 Apnl, 1887. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Eep. 1 Deo. d'A. 357. MEDICAL PRACTITIONER.-A medi cal practitioner who maliciously and unnecessarily divulges the nature of the illness of a patient is liable in dam- ages. Hart & Therrien. Q. Judgment reversing, 5 June, 1879. Sir A. A. Do- rion, C. J., Monk, Eamsay, Tessier, Cross, .JJ. Eep. 5 Q. L. E. 267. 2 Leg. News 202. 9 Eev. Leg. 579. MEMORANDUM.— As to placingafenoe interpreted to be a deed of exchange. Libhy & Wyman M. Judgment revers- ing, March, 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Belanger, JJ. Tas- chereau, Eamsay, JJ., dis. MINING LEASE A mining lease,even for 90 years, enregistered, will not give the holder of such lease right to oppose the sale of the lands, except it be sub. ject to the lease. Anderson & Tait et al. M. Judgment confirming, June, 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Sicotte, JJ MINING RIGHTS— u. Leasb.-Goi.d Mines. By the old law of France, which is in force in Canada, the right to minerals did not pass by a grant of lands to the grantee, without special words, but re- mained in the Sovereign. The King of England, at the cession, succeeded to this right. 461 MINORITy MITOYEN WALL 462 The Sovereign could grant the right to minerals to whomsoever he pleased, and in such case the owners of the soil had no right, except to an indemnity, for any damages they might suffer by the mining operation. Regina & deLery ei al. Q. Judgment confirming, 7 Dec. 1883'. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Baby JJ. Eep. 6 Leg. News 402. Respondent leased to Appellant the right to mine for asbestos on certain property belonging to Respondent. Subsequently Respondent agreed to decrease the amount of royalty he was to receive ; but to what extent Appellant and Respondent could not agree. Appel- lant kept no regular books, but his son- in-law and agent, at all events for some purposes kept full accounts and appel- lant was in the habit of referring those who dealt with him to this agent, and he had even paid Respondent on the statements of this agent. Held, that the Appellant was bound by the state- ment of account of such agent, the amount so fixed being less than Res- pondent would be entitled to under the law. Jeffery & Lamb. M. Judg- ment confirming, 30 June, 1886. Sir A. A. Dorion C. J., Monk, Ramsay, Cross, Baby, JJ. Cross J. dis. MINORITY. — Persons of either sex re- mains in minority until they attain the full age of twenty -one years. 246 C. C. Emancipation only modifies the con dition of the minor. It does not put an end to the minority iior does it confer all the rights resulting from majoritv. 247 C.C. MINORS. — It is only in case of ne- cessity that the Court will authorize the sale of the real estate of minors. And where such necessity does not exist the Court will refuse such order, although a majority of the family council advise the sale. Biliveau & Chtwefils. Q., 5 Sep., 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Te^sier, JJ. Rep. 2 Q. L. R. 191. 9 Rev. Leg. 664. The father of minori', legatees under a will, cannot exclude the testamentary executor from the possession of the moveable property of the succession, even for the use of the minors. Nor- mandeau & McDonnell. M. Judgment confirming, 27 May, 1886. Sir A. A. Dorion, G. J., Monk, Ramsay, Cross, Baby, JJ. MIS EN CAUSE.— u. Timmons et al, & Cross. M., June, 1875. Monk, Tas- chereau, Ramsay, Sanborn, Sicotte,JJ., dis. Walker & Sheppard & Labelle. M., September, 1876. Monk, Ramsay, San- born, Tessier, JJ. MISNOMER. — The name of respon- dent was " Thomas J.", and not " Thomas " as in the writ and declara- tion. Held, confirming the judgment of the Court below, that this was not such a misnomer as to give ground for an exception d la forme. Kearn & Moloney. Q. 7 December, 1877. Dorion, C. J., Monk, Tessier, Cross, JJ. Rep. 1 Leg. News 43. MISREPRESENTATION.— J'lVe Insur- ance — Insuring a building warranted to be used as a grocery and dwelling, in which there is no bar, but where under licence spirituous liquors are sold by the glass as in a tavern is not a misdescription, amounting to mis- representation. The Canada Fire & Marine Insurance Co. 37- Aux termes du Code Municipal (34 Vict., c. 68, art. 19, § 3) les "municipa- lites locales " comprennent les munici- palites de villages. L'article 27 du meme code ne fait qu'indiquer quelles municipalites rura- les seront considerees comma munici- palites locales, sans egard aux munici- palites de villages, qui tombent sous la regie generale etablie par I'art. 19 § 3. Par consequent une compagnie du- ment incorporee en vertu de I'acte 33 Vict. o. 32, avait le droit d'empjerrer un chemin de front dans les limites d'une municipalite de village, d'y poser des barrieres et d'y percevoir des peages. En vertu du dit acte, une telle com- pagnie a le droit d'exiger un peage pour une fraction de mille parcourue, pourvu que sur toute la longueur du chemin parcouru le taux n'excede pas le montant par mille fixe par la cedule B du dit statut. La Gie du Chemin de P^age de la Pointe-Claire & Leclerc. M. Judgment reversing, 9 December, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby JJ. Rep. M. L. R., I. Q. B. 296. Petition on 4th May, 1883, by muni- cipal electors to annull a by-law grant- ing a bonus to a railway company under art. 698 M. C, which by-law came into force on the 20th April, 1883. The by- law was approved by the Lieutenant Governor on the 1 6th January and pro- mulgated on the 4th April. The ground of petitioners' objection was that the by-law had not been submitted to the electors according to law. That a by- law was passed by the council on Sep. 11, 1882, that the by-law was published on the 14th September calling the meeting of electors to approve or dis- approve it on the 8th October. That on the 16th September the council altered the by-law by changing the condition that the work should be finished on the 1st February, 1883, and substituting therefor the 15th July, 1883. It was argued (a) that the by-law voted on was not the one parsed, or advertised, (6) that if the by-law con- sidered as being of the 1 6th September it was not advertised that a by-law of the 16th September could not be sub- mitted to the electors on the 6th Octo- ber, as that made only 19 days from 487 MUNICIPAL CASES MUNICIPAL CASES the 16th Septemher. 673 M. C. (]) Simp- son et al. & The Corporation of St. Malachie d' Ormstown. M. Judgment confirming, 26 November, 1884. Seld : that no subsantial injustice was done, that the electors had acquiesced by voting and that the by-lavsr had been approved by the Lieutenant-Governor in council without protest. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, jj. The Corporation, appellant, had no power to take any of the respondent's land for a road, without fulfilling the formalities prescribed by the law for the expropriation of the land required for such road. The general reserve in the letters patent from the Crown is made in favor of the Crown only, and does not pass to the municipal author- ity. La Corporation du Comti de Dor Chester & Collet. Q. Judgment confirm- ing, 8 February, 1884. Monk, Eamsay, Tessier, Cross, Baby, JJ. Baby, J. diss. Rep. 8. Leg. News 156. 10 Q. L. R. 63. La Corporation de la Cite de Quebec ayant, en vertu du statut 29 Vict., ch. 57, le controle absolu des trottoirs dans la cite de Quebec, elle n'a pas de re- oours en garantie contre le proprietaire, pour dommages resultant d'un accident arrive par suite du mauvais etat de son trottoir. La Corporation de Quebec & Langlois. Q. Judgment confirming, 8 February, 1884. Sir A. A. Dorion C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 10 Q. L. R. 79. Apres le demembrement d'une mu- nicipalite et sa division en deux muni- cipalitgs distinctes, tout le territoire formant cidevant partie de I'ancienne municipalite, demeure affecte au paie- ment des anciennes dettes, et que le conseil de I'ancienne municipalite et ses officiers peuvent percevoir sur tout le territoire, des taxes imposees pour cet objet, et y imposer pour le meme objet de nouvelles taxes basees sur la valeur (1) The day for which the meeting of mu- nicipal electors is convened must not be less than twenty days nor more than thirty days after the passing of the by-law by th,e Coun- cil. des biens imposables d'apres le role d'6valuation en force, dans la munici- palite originaire, lors du changement de limites, comme si ce changement n'a- vait pas eu lieu. La Corporation de I'ancienne munici- palite a un droit d'action pour re- couvrer ces taxes contre les proprietai- res de ces bien imposables, mais que la corporation de la municipalite nouvelle ne peut etre directement tenue au paiement de ces taxes, que dans le cas d'un acte d'accord ent..'e les deux cor- porations, conformement a Particle 84 (1) du Code Municipal. La Corporation de Notre-Dame du Sacri CcEur «i §68, 678, 679, 680, 712, 720, 730 ana /63 to i 780 of this Code inclusively may be had upon lany juridical day.] Q. 48 Vic, cap. 20, sec 4.. 509 OPPOSITION ORANGE ASSOCIATION 510 mortgage. His opposition was contest- ed by B, and dismissed. Held, reversing the judgment of the Superior Court, J st, that as it did not appear that B had paid the mortgage of C, the latter had the right to be paid in preference to B the amount of his mortgage on the monies levied which represented his ; 2nd, that there was sufficient evidence of the insolvency of B to sustain the opposition of C as an opposition en sous ordre. Garon & Tremblay. Q. Judgment reversing, 7 December, 1877. Monk and Ramsay, JJ., dissenting, were of opinion that there was no allegation of insolvency, and that no evidence, if there was any such, would therpfore avail, and con- sequently that the opposition en sous ordre could not be maintained. Art. 753 C. C. P., (1) which is exclusive. Eep. 1 Leg. News 43. OPPOSITION OF PARTY CLAIMING AS OWNER.— ». Fkatjd. Kilgour & Logan. Judgment con- firpiing, 3 February, 1H80. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eamsay, J. dis. Seigniorial Constituted Rents The failure to produce within the six months of closing the cadastre of a seigniory the opposition required by sections 40 and. 4 1 of the Seigniorial Act, is fatal and third parties may take advantage of it, Fanet & Boisseau et al. Q. Judg- (1) Any creditor of a person who is en- titled to be collocated, or is beneficially col- located, upon moneys levied, has a_right to file a i>ub-oppositiou demanding that' to the ex- tent of nis claim the sum accruing to his debtor be not paid to such debtor but to him. He cannot however exercise this right unless his debtor is insolvent or his claim carries execution. ment reversing, 8 September, 1879. Sir A. A. Dorion C. J., Monk, Ramsay, Tessier, Eouthier JJ. Eep. 5 Q. L. R. 377. 10 Eev. Leg. 163. A person who claims a total exemp" tion for taxes, and is proceeded against as a rate-payer, may make opposition under article 970 of the Municipal Code. The Montreal Cotton Co. & The Corporation of the Town of Talley field. M. Judgment reversing, 17 September, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Chagnon, JJ. Rep. 3 Leg. News 317. 9Rev. Leg. 55L Uights of succession- Q. Judgment reforming, 4 December, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross. JJ. May be dismissed on motion. — v. Motion. OPTION Where a commission was payable in cash or bonds at the option of the debtor, part payment in cash was making an option, and gave the creditor the right to demand the balance in cash. Bowen et al. & Gordon & al. M. Judgment confirming, 19 January, 1882. Sir A. A. Dorion, C. J., Eamsay, Tessier. Cross, Baby, JJ. Eep. 5 Leg. News 300. ORANGE ASSOCIATION.— The " Loyal Orange Institution" is an unlawful com- bination and confederacy, the members being bound by an oath to keep secret the proceedings of the Association, and therefore there was probable cause for the arrest of the Plaintiff, who was join- ing in an Orange demonstration likely to lead to a breach of the peace. Grant 6 Beaudry, M. Judgment confirming, 18 November, Sir A. A. Dorion, 0. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 4 Leg. NeTs 393, 2 Dec. d'A. 197. PARTAGE No one can be compelled to remain in undivided ownership. A partition may always be demanded notwithstanding any prohibition or agreement to the contrary. It may however be agreed and or- dered that the petition shall be defer- red during a limited time if there be any reason of utility which justifies the delay. 689 C. C. Partition may be demanded even though one of the coheirs enjoys sepa- rately a part of the property of the succession if there have been no act of partition nor a sufficient possession to require prescription. 690 C. C. Minority. — Fraud. — The fact that a minor was represented at an inventory and partage only by her tutor (her father) who had a conflicting interest, is not a ground for setting aside the partage at the instance of a third party when the minor, who has since become of age, makes no complaint in respect thereof. Where an action to set aside an in- ventory and partage is brought by a member of the family who formally consented thereto, the burden of proof is on the plaintiff' to show that his or her consent was improperly obtained ; and parole testimony is admissible on the part of the defendant to repel the verbal proof of fraud adduced by the plaintiff. Persons of the age of majority are not entitled to relief from their con- tracts for cause of lesion only. (C. C. 1012.) In this case no fraud was proved. Quaere, as to there being any nuns in this Province in a position, as to their civil rights, analogous to that of civil death. Charlebois & al. & Chwrle- hois. M. Judgment reversing, 28 Nov. 1882. Monk, Eamsay, Tessier, Cross, Baby, JJ. Rep. 26 J. 364. 5 Leg. News 421. PARTNERSHIP. — It is essential to the contract of partnership that it should be for the common profit of the partners each of whom must contribute to it property, credit, skill or industry. 1830 C. C. Participation in the profits of a partnership carries with it an obli- gation to contribute to the losses. Any agreement by which one of the partners is excluded from participation in the. profits is null. An agreement ■ by which one partner is exempt from liability for the losses of the partner- ship is null only as to third persons. 1821 C. C. If no time for the commencement of the partnership be designated it takes effect from the date of the con- tract. 1832 C. C. If the term of the partnership be not designated it is considered to be for the life of the partner subject to the provisions contained in the fifth chap- ter of this title. 1833 C. C. A note made fraudulently by a part- ner in the partnership's name, binds the partnership in the hands of a bona fide holder for value. Walter & The Mol- sons Bank. M. Judgment confirming, 18 Sep., 1877. Dorion, C. J., Monk, Ramsay, Tessier, JJ. The individual note of a partner of an insolvent firm, himself insolvent and which has been entered in his state- ment of liabilities, cannot be recovered 513 PARTNERSHIP PARTNERSHIP 514 upon. And the fact that the note in suit is slightly different from the note mentioned in the statement may be explained by evidence. The Exchange Bank of Canada & Eward. M. Judg- ment confirming, 25 Nov., 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. Liability of Partner Although the Appellant had, in error, subscribed for a lai'ger number of shares than he in- tended, in the capital stock of the com- pany Respondent, and had sought in- effectually to be relieved immediately after, yet the fact that he allowed noarly two years to pass before taking legal action to haVe the contract an- nulled, and only took such action when calls were made to cover losses, and had in the meantime accepted a divi- dend of ten per cent, on his shares, constituted an acquiescence sufficient to render him liable for the whole amount subscribed. Where the law declai'es consent to be of the essence of a contract, it does not refer to the consent of the mind, but to the declaration of consent. Cotis ,rol testi- mony, on the ground that the condi- tions of such a receipt appear to be un- reasonable. Giroux & Normandin. M. Judgment confirming, 21 Dec, 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Monk, Cross, JJ. dis. A general receipt for " ioutericlamor tion " covers a note in the hands of the party giving the receipt, and it is for him to show error if it be intended to exempt it. Hart & Boudreault. Q. Judgment confirming, 4 Sep., 1879- Dorion, C. J., Monk, Bamsay, Tessier, Cross, JJ. Un re^u pour balance du prix de bois vendu constate un reglement final, qui ne peut etre mis de cote, sans alle- guer I'erreur ou d'autres causes de nul- lite. Johnson & Mc Greevy. Judgmenl; confirming, 7 March, 1881. Sir A. A. Dorion, C. J., Monk, Bamsay, Cross, Baby, JJ. Bep. 1 Dec. d'A. 299. Evidence to explain receipt — The Bespondent sued the Appellants for an alleged over paid amount of $1.%.38, his pretention being that he had paid the Appellants a sum of $1300.00 in- stead of that of $1144.62 which he owed them. He filed in Court several receipts amounting in all to $1301). Held: That the Appellants had suffi- ciently established that on the 18th June,'l877, when they gave a receipt to Bespondent for $500, they only received 597 REGISTRAR REGISTRATION 598 a Bum of $300, and, that this receipt included a previous payment of $200 made by one Eutheribrd on Respon- dent's account, consequently it was Eespondent who still owed a balance to Appellant. Keen et al. & Boon. M. Judgment reversing, 25 Nov. 1882, Sir A. A. Dorion, C. J., Monk, Kamsay, Tessier, Cross, JJ. Hep. 3 Dec. d'A. 55. The receipt of the SheriflF acknowl- edging having received money will not be set aside as given in error without a commencement de preuve par 4crit, on the sole evidence of the ofiBcer who gave the receipt, where the amount acknowledged to have been received is the amount which the party paying it owed, and ought to have paid. Nor will this be affected by the question arising on an inscription en faux by the sheriff alleging having received, the amount. Larivi&re & The Corporation of Quebec. Q. Judgment reversing, 8 Oct., 1883. Sir a. A. Dorion, C. J., Ram- say, Tessier, Cross, Baby, JJ. Tessier, J., dis. RECUSATION OF ASSIGNEE._An assignee to an insolvent estate is not a judge within the meaning of article 176 of the Code of Civil Procedure, and therefore cannot be recused in the mode prescribed by the Code for the recusation of a judge. Proceedings to disqualify an assignee under the Insolvent Act of 1869, must be taken in the mode prescribed by sect. 137 of the Act. The Mechanics Bank & Brown. M. Judgment confirm- ing, 22 Dec, 1 874. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Rep. 19 J. 295. REDHIBITORY.— D. Vice Rhedibitoire. REGISTRAR.— The registrar has no right to claim fees not allowed by the tarif. There is no fee for the mention in the margin of every renewal of an hypo- thec, nor for any mention in the mar- gin of any transfer, nor for any such mention in the registration of quittan- ces, or radiation of hypothecs, article 13 of the tariff not applying to such items. Nor has the registrar a right to charge for certificates which are not required by the party registering. An action will lie for the recovery of such sums by the. party by whom they were paid, whether the party so paying, intended to charge a principal or not. Lachaine & Frevost. M. Judgment confirming, 19 Nov., 1883. Sir A. A. Do- rion, C. J., Monk, Ramsay, Baby, JJ. Liability of. — The registrar of each Registration Division is bound to enter in the certificate furnished by him to the Sheriff, under articles 699 and 700 of the Code of Civil Procedure, all hypothecs registered against the parties who have been owners of the property sold during the ten years preceding the sale, and he cannot limit his certificate to the entries of mortgages registered within such ten years, and that the registrar is liable to pay the amount of such mortgages as would have been collo- cated on the proceeds of the sale had he made a proper certificate, and which have not been so collocated owing to his not having furnished such a certi- ficate, as the law called for. The Trust and Loan Company & Dupras. M. Judgment reversing, 17 September, 1880. Sir A. A. Dorion, C. J., Monk. Ramsay, Cross, JJ. Rep. 25 J. 239, 3 Leg. News 332. REGISTRATION OF TITLE OF HEIRS. —Although art. 2098 of the C. C. obliges the heirs to register their title, the only penalty attached to their failure to do so is, that all conveyances, trans- fers or real rights granted by them are without effect. Dallaire & Gravel. M. Judgment reversing, 21 December,1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 22 J. 286. 2 Leg. News 15. REGISTRATION.— Hodges sold land to Defendant Constant, 30th May, 1871. The vendor failed to enregister till the 30th June. On the 28th June, Constant gave an hypothec over land to Pacaud who enregistered the same day. Pa- 599 REGISTRATION REGISTRATION 600 caud claimed to be entitled to rank on the proceeds of the land prior to the representatives of Hodges, but the Court held, confirming the judgment of the Superior Court, that Constant could not give any hypothec over the land till his own title was registered which was not on the 28th June (art. 2098 C. C.) Pacaud & Aihman et al. Judgment confirming, 4 September, 1S78. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Since the Civil Code came into force, though a person may have acquired an immoveable in good faith, and be in open possession thereof as proprietor, yet, if the aete by which he acquired, though registered within thirty days, has not been registered until after the registration of a judicial or other hypo- iMque against the vendor, the latter claim attaches and has the preference. The registration of a deed of aliena- tion within thirty days from its date protects only the rights of the vendor or donor, and has no retroactive effect in favor of the person who acquires the property. Adam & Flanders. M. Judg ment reversing, 22 December, 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Monk, J. dis. Rep. 9.b J. 25. 3 Leg. News 5. The failure to register can only be invoked by third parties who have ac- quired real rights over real estate, and who have registeied their titles, ex- cept in cases of fraud under.the articles 2U83, 2098, 230 C. C. Article 2091 (1) otjly applies in case of seizure followed by expropriation. Nightingale et La Soci4t6 de Construc- tion Canadienne. M. J udgment revers- ing, 27 May, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, J J. The failure to register, except in a case of fraud, can only be invoked by third parties, who had or may have (1) The same rule applies to the registra- tion efi'eoted after the seizure of an immove- able when such seizure is followed by judicial expropriation. acquired real rights on the property, and who have the titles establishing their rights before the purchaser haa registered his title. Nightingale & La Socimde Construction Jacques Gariier. M. Judgment reversing, 27 May, 1882. Sir A; A. Dorion, C. J., Monk, Ramsay, Cross', Baby, JJ. An indication of payment, in favor of a creditor of a vendor of an immo- veable, in a deed of sale duly register- ed, enures to the benefit of such creditor, who thereby becomes entitled to be collocated for the amount so in- dicated to be paid, on the proceeds arising from a judicial sale of such im- moveable. Longpr^ & Valade. M. Judg- ment confirming, 17 Nov., 1880. Sir A. ■ A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Cross, J., dis.. Rep. 4 Leg. News 34, 1 Dec. d'A. 15. Of donation Champagne & Chap- deleine. M. Judgment reversing, 21 December, 1883. Sir A. A. Dorion, C. .J., Ramsay, Tessier, Cross, Baby, J J . A deed of sale, revoked without fraud by the parties, confers no right on the creditor of the purchaser to permit him to seize the property. Lnngpri et al. & Valade^M.. Judgment confirming, 17 Nov., 1880. Dorion, C. J., Monk, Ramsayj Cross, Baby. JJ. Cross, J., dis. Rep'. 4 Leg. News 34, 1 Dec. d'A. 15. Builder's privilege. — To allow the builder his privilege for the value added to the property (the plus value) there must be a procis-verhal of the state of the premises previously made, and the privilege only dates from the enregistration of the statement. Boberi et al. S Rieutord. M. Judgment revers- ing, 26 May, 1883. Sir A. A. Dorian, C. J., Monk, Ramsay, Cross, Baby, JJ. Resolution of sale owing to failure to pay price A vendor prior to the coming into force of the Civil Code is not obliged to register specially his right to set aside the deed for failure' to pay the price ; and inasmuch as it is a right of property dependent 601 REGISTRATION REGISTRATION 602 on the law he is not obliged to renew the registration of the deed of sale. Hari & Abbott. Q. Judgment confirm- ing, 4 Sep., 1878. Sir A. A.Dorion, C. J., Monk, Eamsay, Tessier, Cross, J J. Under the 4th sec. of the Registry Ordinance enacts that nothing herein coiitained shall be construed to require the registration of the original grant, letters patent, conveyance or title by which lands have been granted and conveyed and are now held, era fief, d, iitre de cens, en franc aleit, or in free and common soccage or of any rent, sum of money, due, duty or service, therein or thereby stipulated or re- served by the seignior, original grantor or lord of the fee. The majority of the Courtis therefore of opinion that original deeds of con- cession from the seignior or lord of the fee, constituting rentes fonciires, do not require to be registered. McCord & Les Beligieuses Sceurs de V Hotel-Dieu de Montr M. M. Judgment reversing, 17 Dec, 1879. Monk, Ramsay, Tessier, Cross, Routhier, JJ. Monk, Tessier, JJ., dis. Rep. 2 Leg. News 417. To effect a composition with his cre- ditors, James Baylis gave his notes en- dorsed by McKeand, who as security took an assignment of the estate, inclu- ding a property in the City of Montreal. McKeand leased this property to the Appellants, James Baylis & Son, and subsequently reoohveyed the property to James Baylis, with right to recover the rents accrued or to accrue. Subse- quently the Respondent was appointed sequestrator to the property in a hypo- thecary action by Crossley & Sons against McKeand, and sued Appellant, to recover the rent from date of lease by McKeand to the date of his appoint- ment. The Court expressing strong doubts as to the propriety of the appointment of a sequestrator in such a case, and reversing the judgment of the Court below. The transfer of rent by McKeand to Baylis did not require to be registered to enable Bayhs to receive the rents. The receipts sous seing priv£ given by Baylis to the Appellant, were primd facie evidence that the rent had been paid at the date of the receipt and that it was for the Respondent to establish the contrary. Baylis & Stanton. M. Judgment reversing, 24 March, 1882, Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 2 Dec. d'A. 350. Of substitution The renewal of re- gistration of any real right, required by art. 2172 of the Civil Code, has reference only to hypothecs or charges on real property and not to rights in or to the property itself. La Bangue du Peuple & Laporte. M. Judgment confirming, 21 Sep., 1874. Monk, Taschereau, Ram- say, Sanborn, JJ. Monk, Ramsay, JJ., dis. Rep. 19 J. 66. Sub-division of lot. — By the 38 Vic, Q., c. 15, sec. 2 it is enacted : " In the case where a property before " the passing of this Act, has been sub- " divided and sold by lots, without " there previously having been a plan " and book of reference prepared " according to article 2175 of the Civil " Code, the Commissioner of Crown " Lands may, on requisition addressed " to him by a majority of the persons " interested, permit that a plan and " book of reference of the subdivision " of such property be made, provided " that the following formalities be " observed: " 1. A plan shall be made bearing " numbers as ordinary subdivisions ; " also book of reference corresponding " therewith, which shall be signed and " certified as correct by the parties " interested, and addressed, with a " copy of such plan and book of refer- " ence, to the Commissioner of Crown " Lands, who shall keep the original, " and remit such copy certified by him " to the registrar of the registration " division ; " 2. The registrar shall then prepare " his index to immoveables, for such " property thus cadastred, in his index " book for the subdivisions ; " 3. On certificate of registrar of the 603 REGISTRATION REGISTRATION 604 " deposit of the plan and book of " reference of such division thus made, " the Lieutenant-Grovernor in Council " shall issue a proclamation by which ■' he shall order that all the hypothecs " particularly affecting any of the lots " mentioned in the said plan and book " of reference, and not including the " hypothecs aflfeoting the whole pro- " perty thus divided, be renewed with- " in a delay of six months, to be com- " puted from the day fixed in such '■' proclamation and in default of such " renewal being made, any person who " has not conformed to the provisions " of this section shall lose his rank of " priority of hypothec." Seld, that where the substantial requirements of the Statute have not been complied with, the proclamation of the Lieutenant-Grovernor, ordering the renewal of the hypothecs will not have the effect of compelling the hy- pothecary creditors to renew their in- scriptions. The Montreal Loan and Mortgage Co. & Boyer. M. Judgment reversing, 26 May, 1883. Sir A. A. Do- rion, C. J., Monk, Eamsay, Cross, Baby, JJ. V. DeTBNTBUK ACTUEL DOTJAIEE COU- TUMIEE Evidence (3) Registrak. Pour invoquer la priorite ou le de- faut d'enregistrement des titres, sui- vant I'article 2098 du Code Civil, il faut que le titre provienne du meme auteur ou du meme vendeur ; Dans I'espece actuelle, la donation du pere au fils a les caractdres d'une •donation a titre universel ; Le possesseur qui invoque la pres- cription de dix ans, meme celle de trente ans, ne pent valablement acquerir la prescription contre son titre ou contre celui de son auteur dont il est le suc- cesseur a titre universel. Cloutier & Jacques. Q. Judgment reversing, 8 Fe- bruary, 1884. Monk, Eamsay, Tessier, Cross, Baby, JJ. Rep. 10 Q. L. R. 44. The registration of a deed of sale in which the immoveable sold is described 'by its cadastral number, and in which the purchaser undertakes to pay the amount of a hypothec duly registered before the proclamation of the Cadas- tre, will not supply the place of the renewal of registration of such hypo- thec required by C. C. 2172. Les EecU siastiques du S^minaire de St. Sulpice , de Montrial & La Sociite de Construc- tion Canadienne de Montreal. M. Judg- ment confirming, 27 March, 1884. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, J J. Rep. 7 Leg. News 131. By a deed of sale of the 3rd of April, 1843, which has never been registered, John McGruire sold the lot of land now possessed by the Appellant, reserving a right of passage in common on the lot sold in favour of the remaiiider of his property now possessed by Wiggins. Held : That the right of way in favour of the Respondent was not extinguished by the fact that the deed of sale of the 3rd of April, 1843, was not registered, inasmuch as the Appellant and his auteurs have purchased subject to the servitude mentioned in the original deed. Dunn & Wiggins. M. Judgment confirming, 26 November, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 4 Dec. d'A. 89. Held: lo. (Approving id BaregMerfu Peuple & Laporte, 19 J. 66), that the renewal of registration of any real right, required by art. 2172 C. C, has no re- ference to a right in the property itself, such as a servitude or drain through a property, established by deed in favor of a neighbouring property. 2o. The proprietor of the servient land can do nothing which tends to render the exercise of the servitude less convenient than it was at the date of its creation ; and so, where the owner of the servient land constructeda barn over the drain running through his land, and, in the opinion of the majority of the Court, it was proved that repairsto the drain were necessary, it was held that the person to whom the servitude was due was entitled to ask that the barn be demolished to a sufficient ex- tent to permit repaijs to the dram to be made whenever necessary. 605 RENEWAL OF REGISTRATION REPORT OF DISTRIBUTION 606 3o. The action to enforce such servi- tude does not lie against a person who has ceased to be owner of the servient land before the action is instituted, but he may be condemned personally in damagf s if he participated in the act of obstruction. Wheeler et al. & Black et al. M. Judgment confirming, 27 November, 1885. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, JJ. Ramsay, J., dissenting as to its being a trouble for the proprietor of the heritage servant to build over the drain. Rep. M. L. R. II Q. B. 139. 9 Leg. News 202. RE-INSURANCE.— w. Insurance. RELATIVES. — v. Aebitkation. RELIQUAT DE:C0MPTE.— w. Account. REMERE An action to get back property under a stipulation of rem,6r6 will not be maintained unless there be offres ridles. Walker & Sheppard & Labelle mis en cause. A vendor who has reserved a, faculty de remiri, must strictly conform to the conditions stipulated for its exercise. Semble he need not be put en de- meure to exercise it after the delay during which it is permitted to be exercised by the contract has expired. Walker & Sheppard & Labelle. Judg- ment. RENUNCIATION. — Of hypothecary rights A toarried woman may validly renounce her priority of hypothec in favor of a third person who is lending money to her husband on the security of his real estate. Such renunciation in favour of a third party does not deprive the wife of her rights against other mortgage creditors inferior in rank to herself. La SocUte de Construction Montarville vs. Cousineau et vir. M. Judgment con- firming, 3 Feb., 1880. Sir A. A. Dorion, G. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 3 Leg. News 329. RENEWAL OF REGISTRATION. — t^. Registration. RENT FOR USE AND OCCUPATION.— Imputation of payments T£tu & Gar- neau et al. Q. Judgment reversing, Sep., 1874 Dorion, C. J., Monk, Ram- say, Sanborn, Bosse, JJ. Presumption of payment of. — Besi- liation of lease. — Payment of three terms Shortis & Martel. Q. Judgment confirming, 7 June, 1878. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Privilege for Deals manufactured from saw-logs sent to a mill to be sawn are not subject to the landlord's pri- vilege for rent, but come within the exceptions declared by art. 1622 of the Civil Code. (1) Price et al. & Hall. Q. Judgment reversing, 22 March, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 2 Q. L. R. 88, 10 Rev. Leg. 120. The cessionnaire of an annual rente fonciire may by an opposition d fin de charge, in the name of the cSdant, preserve his right to the rent or its equivalent. Bodier & Laberge. M. Judg- ment confirming, 26 Sep., 1883. Monk, Ramsay, Tessier, Cross, JJ. RENUNCIATION TO DOWER. — v. Dower. REPORT OF DISTRIBUTION.— iVb^ice. V. Opposant. L'Appelant, opposant en premiere instance qui n'a pas ete colloque dans le rapport de distribution prepare en cette cause, demande la mise de cote dujugement homologuant ce rapport de distribution, parce qu'il n'a pas ete notifie de la production au greffe du dit rapport par le protonotaire de la Cour Superieure. (1) It includes also moveable effects be- longing to third persons and being on the premises by their consent express or implied, but not if such moveable effects be only transiently or accidentally on the premises, as the baggage of a traveller in an inn, or ar- ticles sent to a workman to be repaired or to an auctioneer to be sold. 60Y REQUKTE CIVILE RESERVED CASES 608 Jug4: Que I'Appelant n'avait pas le droit a un avis partioulier, et que s'il voulait contester le rapport de distri- bution, il devait le faire dans les delais mentionnes a I'article 742 C. P. C. (1) Prevost & Latreille. M. Judgment con- firming, 29 March, 1883. Sir A. A. Do- rion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Bep. 3 Dec. d'A. 166. A clerical error in the judgment of distribution corrected. Houle & Shel- land et al. Q. Judgment, 8 March, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. REPRISE D'INSTANCE.— u. Adviser. The appointmentof a judicial adviser does not necessitate areprise d' instance because it does not change the status of the party. Holland & Michaud. M. Judgment 2 March, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. REQUETE CIVILE.— The enumeration in the Code of Procedure of modes of setting aside a judgment is not ex- clusive, and a direct action may be brought for the purpose where the Plaintiff alleges that the judgment was fraudulently obtained, without his knowledge and without service on him of the writ of summons. Kellond & Seed. M. Judgment reversing, 20 June, 1874. Taschereau, Ramsay, Sanborn, Loranger, J J. Rep. 18 J. 309. A requite civile, which does not on its face come within the provisions of Act 505 of the Code of C. P., may be rejected on motion. Macdougall et al. & The Union Navigation Co. M. Judg- ment confirming, 16 March, 1877. Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 21 J. 63. Une requete civile sera renvoyee, s'il appert que les manoeuvres frauduleuses dont le requerant se plaint n'auraient (2) The parties are allowed eight days to contest the report of distribution reckoning from the day on which it was entered on the posted Ust, if such a day be a Monday, it not the delay is reckoned from the Monday fol- io wiue. pu exercer, sur la decision du litige,- une influence determinante. (Art. 505 C. P. C.) L'epouse separe de biens et defen- deur ne pent etre teinoin du deman- deur sur la contestation d'une opposi- tion afin de di-straire, faite par la femme du defendeur. (Art. 251 C. P. G'.i Lorsqu'une partie est niise en cause dans une requete civile, et qu'elle n'a aucun interet a contester cette requite civile et qu elle n'est mise en cause que parce qu'elle etait partie dans la cause originaire, et que, cependant, elle con- teste la requete civile, elle n'obtiendra pas de depens sur sa contestation, meme si elle est maintenue. Brunelle et al. & Bergeron et al. Q. Judgment confirm- ing, 7 February, 1885. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 14 Rev. Leg. 501. RESERVED CASES.— The general ses- sions of the ppaoe may reserve a case for the consideration of the Court of Appeal and Error. The Queen v. Smith. M. Judgment 2 [June. 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 2 Leg. News 223. The Defendant who has not been bailed should be present at the hearing and judgment of the case reserved. The Queen & Deery. M. Judgment on reserved case, 18 Dec, 1874. Dorion, C, J., Monk, Taschereau. Ramsay, San- born, JJ. Rep. 26 J. 129 In a later case it was held, that on the hearing of a reserved case it is not necessary that the prisoner should be present, and he may be kept locked up in gaol to prevent his being present while his case is being argued. The Qfieen v. Glass, The Queen v. Scott. M. Judgment 15 June, 1877. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ- Monk, Ramsay, JJ, dis. Eep. 21 J. 245, 1 Leg. News 212. A question raised by motion in arrest of judgment is a question arising on the trial, and properly reserved. The Queen V. Deery. M. Judgment on reserved case, 18 Dec, 1874. Dorion, 0. J., Monlc, 609 RKSERVKD CASES ilESILlATION (IF I. EASE 610 Ta'ohereau, Kamsay, Sanborn, J J. Rep. 26 J. 129. " Trial," within the meaning of C. S. L. C, c. 77, s. 57, is not terminated until sentence is rendered, and a " question which has arisen on the trial " does not necessarily mean a question that was raised at the trial, but one that took its rise at the trial ; and therefore a point not mentioned by the defence may be reserved by the Court. Beg. v. Bain, M. Judgment, 22 June, 1877. Dorion, C. J. Monk, Ram- sav, Sanborn, Tessier, JJ. Rep. 23 J. 327. Where a case reserved mentioned a motion in arrest of judgment, and set forth the text of the reasons in support thereof, and reserved only the reasons, the Court, on the afipeal side, would reject the motion, if it ought not to be maintain ed for any of the reasons t here- in contained, the JDrisdiction of the Court for crown cases reserved being strictly limited to the point reserved. The Queen & Beery. JI. Judgment on reserved case 18 Dec, 1874. Dorion, C. J., Monk, Taschereau, Ramsay, San- born, JJ. Rep. 26 J. J 29. The non-production by the prosecu- tion, on a trial for perjury, of tlie plea which was filed in the civil suit where- in the Defendant is alleged to have given false testimony, is not material where the assignment of perjury has no reference to the pleadings ; but the Defendant, if he wishes, may in case the plea be not produced, prove its contents by secondary evidence. It is not essential to prove that the facts sworn to by the Defendant, as alleged in the indictment, were ma- terial to the issue in the cause in which the Defendant was examined. A reserved case may be amended at the request of the Defendant, during the argument thereon before the full Court, by adding the evidence taken at the trial. ^ (Following Reg. vs. Bain. 23 L. C. J. 327). A new trial may be ordered on a reserved case, in misdemeanours, where it appears to the Court on the evidence that an injustice may have been done to the Defendant. The Queen vs. John Boss. M. Judgment reversing, 27 Sep., 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. M. L. R. I. Q. B. 227. The prisoner was indicted for larceny, by a bailee, of a sum of money. The complainant produced a receipt, taken at the time of the deposit in the hands of prisoner, by which it appears the de- posit was made "en attendant le paie- ment qu'il pourrait faire d'une mSme somme d, R. A. Benoii." Held, that this receipt implied that prisoner was to pay a similar sum, and not actually the same prices of money, and that there was no larceny. Also that parol testi- mony could not be admitted to vary the nature of the transaction. The pri- soner was discharged. The Queen & Berthiaurne. M. 25 September, 1886. Sir A. A. Dorion, C. J ., Ramsay, Tessier, Cross, Baby, JJ. Baby, J. dis. RESILIATION The lessor of a ware- house cannot obtain the resiliation of the lease, becaui-e there arises from the storage of goods, the smell which such articles generally produce. Joseph & Kinghan. M. Judgment confirming. Dorion, C. J., Monk, Taschereau, San- born, JJ. Ramsay, J., was absent at rendering judgment but concurred. RESILIATION OF LEASE.— A who makes no objection to the non- fulfilment of a condition of his lease within a specified time, till after the undertaking of the landlord is ac- complished, and a term of the rent is due, cannot demand a resiliation of the lease owing to the non-fulfilment of the condition. Ballantine & Snowdon. M. Judgment confirming, June, 1874. Tas- chereau, Ramsay, Sanborn, Loranger, JJ., and V. GrAULT and Evans & Evans & Gault, Dec, 1874. An action to resiliate a lease should be brought before the Superior Court or before the Circuit Court as the amount claimed by the action, Jbr lease or for use and occupation or for dama- 20 Cll UESILIATION OF SALE REX JUDICATA C12 ges is of the jurisdiction of the one or other of those Courts, and not accord- ing to the annual rent or value of thp premises. Voisard & Saunders. M. Judgment reversing, 21 Dec, 1887. Do- rion, C. J., Monk, Eamsay, Tessier, •Cross, JJ. Monk, Tessier, JJ. dis. Rep. 122 J. 43. 1 Leg. News 41. A lease will be rescinded if the pre- mises are not habitable. Leville & O'Brien. M. Judgment reversing, Dec, 1875. Dorion. C. >l.. Monk, Tasohereau, ilamsay, Sanborn, JJ. Motion to reject aj)peal, the annual rent being $50. However there was a clause in the lease (which was for seven years) permiting Defendant to pur- chase the property any time during the lease for$lO()0. Thejudgment set aside the lease, and thus determined Defen- dant's right to purchase. The motion to reject the Appeal was rejected, the Court holding that a title to land was in question. Cauchon & Anderson. Q. Judgment, 1 Dec, 1874. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. > y, , Where the fire only partially de<- troys the premises leased, the lessee cannot oblige the landlord to terminate the lease. Geriken & Pinsonneault. M. Judgment confirming, June, 1875. Do- .'ion, C. J., Monk, Taschereau, Ramsay, ■ anborn, JJ. Dorion, C. J., Sanborn, J. is. were of opinion that the injury endered the house uninhabitable. RESILIATION OF SIMULATED DEED. -A deed made merely as a cover for a oan to the nominal vendor, will be re- siliated and set aside as simulated at the suit of a creditor whose rights are injured by such deed. And the fact that the nominal vendor has reaiained in possession of the property will be evidence of the nature of the transac- tion. Thibaudeau & Mailley. M. Judg- ment reversing, 25 January, 188:i. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, J3. Tessier and Baby, JJ. dis. RESILIATION OF SALE FAUTE OE PAIEMENT DE PRIX.— w. Siw.moxs & ■Cross, June, 1875. RES JUDICATA.—The grounds decid- ed in a suit, cannot be raised between the same parties on opposition to the execution of the judgment. Dawson & McDimald. Q. Judgment confirming 6 March, 1879. Sir A. A. Dorion, aj., Monk, Eamsay, Tessier, Cross, JJ. A judgment declaring a will void as a testament .snlennel cannot be invoked as having adjudicated the question, not in ii-sue in suoli suit, as to the validity of the will intheenglishform. Marquis S Mai-qtiis. Q. Judgment confirming, 4 March, IS75. Dorion, C. J.. Monk, Ramsay, Sanborn, Plamondon, JJ. Hen. 1 Q. L. R. 00. Damages — .'in action of damages will not lie agninst a party to a pre' vious suit by his adversary, for an alleg- ed false affidavit by which such party obtained a final judgment in his favor in the previous suit. The first judgment is res judicata. Boisclair & Lalancette. M. Judgment reversing, 15 February, 1881. Sir A. A. Donoii, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 5 Leg. News 260. Dec d'A. 289. A possessor of land in good faith, who has a droit de retention fur im- provements cannot bring a direct action after abandoning the land on suit for the value of the improvements. There is chose jug^e, for the question was fully adjudicated upon by the Court whether Defendant had a right to retain the land. Barbin etal. & Lan- glois. Judgment confirming, 8 Sep., 1880. Dorion, C. J., Monk, Eamsay, Tessier, Cross, .JJ. Tessier, J. dis. A judgment rendered on a confession made under an agreement not to execute such judgment, on certain conditions, does not constitute such a res judicata as will prevent the Defend- ant making an opposition to the ex- ecution, and thH opposition may be maintained, if the admis-ions of the Plaintiff and contesting party esta- blish the fact of the agreement. Q.Ju'^S' ment reversing, Sep., 1874. Dorion, C. J., Monk, Taschereau, Ramsay, San- born, JJ. Ramsay, J., dis. wasof opinion that the admission prior to judgment could not be enquired of by any Mm C13 KESOLUTORY ACTION liETENTION 614 of evidence, that the judgment fui'- nished a, presompUo juris et de jure, f. 6 Savign, Droit Eomain, p. 474, Tr. de tiuenoua. A Defendant, after he has contested an account, and judgment has gone against him, will be permitted, on an opposition to the seizure uniler judg- ment, to prove a payment which he liad failed to prove in the principal suit, owing to his having been in error as to the date when he made such pay- ment. Cornell S liichard.M.. J wl^meat •confirming, 18 Sep., 1S78. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Eamsay, J., dis. Rep. 1 Leg. News 471. RESOLUTORY ACTION. — A building society being in difficulties went into liquidation. It was resolved to sell the assets at a meeting of the shareholders, it was deiermined by a unanimous vote, to accept the offer of one Moisan therefor, namely 88^ cents in the Si, -Appellant was present at the meeting but did not vote. Subsequently he sued the liquidators and Moisan to set aside the sale, alleging fraud and that Moisan was only the pretenom of two of the liquidators, Gauthier &Bourque, with whom he was acting in concert. It appears Appellant purchased from ■one Limoges, after the society went into insolvency, four shares for a very .small sum, and that he gained largely by the transaction at the price the assets were sold, and that the trans- action was a very favorable one for the shareholders. The principal point urged by Appellant was that the sale to two of the liquidators was a violation of art. 1484 C. C. ( 1 ) Held, confirming the judgment of the Superior Court, that the right of action of Appellant was not affected by the fact of the time or terms of the purchase of the shares (1) The following persons cannot become uuyers, either by themselves or by parties in- terposed, that is to say :— Tutors or curators ofthe propel ty of those over whom they are Jippointed, except in sales by judicial authori- *?:■ Agents of the property they are charged with the sale of administrators or trustees of the property in their charge whether of public •bodies or of private persons, from Limoges, that the liquidators, parties interested in securing a good price for the estate were not precluded by art. 1484, C. C. for tendering for tho assets without fi-aud, and that no fraud had been proved. Semble that Belanger had acquiesced in the sale. B4langer & Gauthier et al. M. Judgment con- firming, 26 Sep., 1883. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. RESOLUTORY CONDITION v. Chau TEK Party. RESPONSIBILITY.— Where a cargo of coals to arrive is sold, the risk of their non-arrival in a reasonable time is at the charge of the vendor. Adams Ss Crawford, Q. Judgment confirming, 5 June, 1875. Dorion, C. J., Monk, Tas- chereau, Ramsay, Sanborn, JJ. RETAINER u. Advocate's Fees. RETENTION — Right of, for improve- ments — Where a party to a petitory action has not claimed for improve- ments, and judgment goes for the Plain- tiff, the Defendant will not have an in- dependent action to set the judgment aside, or to be allowed to retain the property till the Plaintiff in the first action, has paid the Plaintiff the alleged improvements. iSuch an action may be dismissed on demurrer. Barbin & Lan- glois, Q. Judgment confirming, 8 Sept., '1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Droit de — The right of retention, under art. 419 C. C, (1) is not establish- ed in favour of the particular legatee who has made improvements, and who is called upon to return the property he has so received by a creditor of the siicces.sion. His remedy is similar to that accorded by art. 2072 C. C. Matte (1) In ease the party in possession is forced to give up the immoveable upon which he has made improvements for which lie is entitled to be reimbursed, he has a right to retain the property upon which such reimbursement is made, without prejudice to his personal re- course to obtain repayment, saving the case of surrender in a hypothecary action, which is specially provided for in the title of Privileges and Hypothecs. 615 RETROACTIVE LEGISLATION REVIEW 616 & Laroche. Q. Judgment reversing, 8 June, 1878. Dorion C. J., Monk, Ram- say. Tessier, Cross, JJ. Rep. 4 Q. L. R. 65. Note. Mr. Justice Tessier entered at some length into the question of sepa- ration de pairimoine, but the question was not pleaded and the judgment did not turn upon this. RETROACTIVITY.— An act of the Le- gislature of the Province of Quebec passed on 24 December, 1872, limited appeal in certain cases that had gone in review, although the proceedings in the suit had been commenced previous to that date, the act applies to cases in- scribed for review subsequent to the enactment. Stewart & Angers. M. Judgment. RETROACTIVITY.— v. Appe.4.l — Le- gislative Powers. RETRAXIT.— A party Plaintiff may abandon an item of his demand by re- traxit, but not in such a manner as to alter the issues unfavourably to the Defendant. So where a Plaintiff sued on a balance of account for money lent, and for a balance for goods sold and delivered, and Defendant admitted to have received the goods and denied having received a large portion of the money said to be lent, and neither party made any proof and the Plaintiff filed a retraxit for the demand for money lent, and asked for judgment on the admission in the plea, the action will be dismissed. Lassalle & Hart. Q. Judgment reversing, 6 September, 1877. Dorion, 0. J., Monk, Ramsay, Tessier, JJ. RETRAIT SUCCESSORAL— The re- trait successoral in virtue of art. 710 C. C. may be exercised after family ar- rangement ; and this although the pur- chaser, not being an heir, has purchas- ed a determinate portion of certain im- movables. Durocher & Turgeon- M. Judgment confirming, September, 1874. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. Rep. 19 J. 178. RETROACTIVE LEGISLATION. —The Act of Can. 45 Vic, cap. 127, confirm- ing and ratifying all acts and doings of the Board of Temporalities, since the passing of the 38 Vict., cap. 64, was sufiBcient to sustain an action instituted by the Board before the passing of the 45 Vict., and the Dominion Parliament had authority to enact said statute, although the Privy Council in England had, by their judgment in Dobie and Temporalities, declared the Board to be illegally constituted. The Minister and Trustees of St. Andreio's Church and the Board of Temporalities Church of Scotland. M. Judgment confirming. M. 20 January, 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Baby, JJ. Ramsay, J., dis. Rep. 6 Leg. News 27. REVENDICATION.— Where the good.? of the wife are seized for taxes due by the husband, she cannot proceed by way of saisie-revendication to attach such goods in the hands of the guardian. Walker & The Mayor &c. of Sorel. M. Judgment confirming, Sep., 1875. Do- rion, C. J., Monk, Taschereau, Ramsay, Sanborn, J J. On a sale of goods, without delay for the payment, the vendor may, within eight days of the delivery, revendicate them, in the hands of the purchaser, if the price be not paid Blagdon & Lehel. Q. Judgment confirming, Sep., 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 5 Q. L. R, 87. A proprietor on whose land logs have been out and carried to a place where they can be floated has a right to re- vendicate them on paying the price of the making and transportation of the logs, by which he profits. Tourville et al. & Allard. Q. Judgment reforming, 7 Dec, 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ- Tessier, Baby, JJ., dis. REVENDICATION BY GUARDIAN.- »• Gaedibn. REVIEW.— Where the judgment of the Court of Review confirms that of the Superior Court, maintaining a wnt of Prohibition, the magistrate Defend- ing his jurisdiction has not right oi en HEVOCATORT ACTION RIVERS 618 appeal, although he did not inscribe in Review, the inscription in Review being made by another Defendant. Doucet & St. Amand. Q. Judgment, 7 September, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Reported 4 Q. L. K. 146. REVOCATION.— A contract by which a husband transfers his property, then under seizure at the suit of his wife in an action en separation de Mens, to the hands of a trustee, in consideration of main-lev6e being granted of such seizure, such property to be held in trust till the action in separation of property is settled, cannot be set aside, after the main lev^e of the seizure, on the demand of the husband. M. Judg- ment reversing, 27 Jan., 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Monk, Ramsay, JJ., dis. being of opinion that the husband's consent in a matter of separation is null. REVOCATORY ACTION. — A vendor of immoveables, (before the passing of the Code,) who has assigned portions of the purchase money, can, neverthe less, brmg a resolutory action by reason of the default of the vendee to pay any portion of the purchase money, and that the intervention in such action by the assignees, containing a declaration of acquiescence in such action, places the Plaintiffs right of action beyond question. The sale of Government timber limits is a sale of an immove- able. Watson & Perkins. M. .Judgment confirming, 20 June, 1874. Taschereau, Ramsay, Sanborn, Loranger, J J. Fraudulent sale. — A creditor who cannot obtain payment from his debtor, may bring a revocatory action to set aside the sale of the real estate of such debtor. Ami the transaction will be declared fraudulent where it appears by the evidence, that the price was not paid by the purchaser, although a full receipt was given therefor, but that the pretended purchaser had a counter- claim against the vendor, and who had applied the balance of the price in the purchase of a property in his own name. Bruneati et al. & Bertrand. M. Judgment confirming, 20, Sep., 1881. Monk, Ramsay, Tessier, Cross, Baby, JJ. Action rivocatoire for fraud. — Bru- neau & Bertrand. M. Judgment, 20 September, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. A revocatory action will lie to rescind a deed of sale, passed before the Code, of timber limits for non-payment of the price, at the suit of the assignee of the insolvent vendor, although part of the price may have been assigned to others, and although an hypothec has been created on the property of $5,000, more taan four times the amount of purchase money remaining due. That the sale of timber limits, i. e. the right to cut timber, is the sale of an immoveable. Watson is-qualit^ & Perkins et al. Judgment confirming that of Superior Court, June, 1874. Taschereau, Ramsay, Sanborn, Loran- ger, J J. Rep. 18 J. 261. Action to rescind lease there being no privies Beaudry & Lupien. M. Judg- ment confirming, 23 September, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, J.J. RIVERS.— The 19 and 20 Vic, ch. 104, does not confer the right of a proprie- tor on one bank of a river, to rest a mill-dam on the opposite bank, belong- ing to another. Bureau & Vachon. Q. Judgment reversing. 7 December, 1883. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Tessier, J. dis. Obstruction to. — Where the riparian proprietor of a non navigable river places a dam there which does not render the river less advantageous than it was naturally for running logs, a proprietor higher up the stream, or any one driving wood on such stream cannot complain. McBean & Carlisle et al. M. Judgment confirming, 22 June, 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. That the public have a right to use all streams as highways, and a riparian proprietor cannot arrest the water from 019 B I VERS RIVEIIS 620 such livei- or stream so as prevent this use. MeBean & Carlisle et al. M. Judg. ment reversing, 21 December, 1874. Dorion, C. J., Monk, Taschereau, Bam- say, Sanborn, JJ. Rep. 19 J. 276. The use which riparian proprietors may have of the beach of a navigable river adjoining their lands, is not a right of property nor even a right of servi- tude, but a mere " droit de iol^ance " 3vhich ceRses, without right to indemn- ity, as soon as the Crown concedes or otherwise disposes of such part of the public domain. Hence, where the legislature au- thorized a railway company to cons- truct its line along the shore of a river, and the company, under the authority so conferred by the legislature, con- structed its line along the beach bet- ween high and low water, and thereby deprived riparian proprietors of access to the river, to the great injury of the business previously established and carried on by them, it was held that an action of damages could not be maintained against the railway com- pany by the persons who where so out ofTfrom access to the river, the Crown having the right to authorize such cons- truction, and no redress being provided by the statute. La Cie du Chemin de Fer du Nord & Pion et al. M. .Judg- ment reversing, 4 February, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, J (. Ramsay, J. dia. Rep. 9 L. N. 218. 14 Rev. Leg. 177. 4 Dec. d'A. 358. 12 Q. L. R. 205. Une compagnie de chemin de fer est en droit, lorsqu'elle en est autorisee par sa charte, de se servir, pour y cons- truire son chemin de fer, ite la greve comprise entre les hautes et basses marees. Le fait de construire ainsi un tel che- min ne donne pas au proprietaire voi- sin, si la propriete de celui ci n'a souf- fert aucun dommage materiel, le droit d'etre indemnise de la privation qui lui est faite de pouvoir desormais commu- niquer librement a la riviere et de se servir dea eaux de la dite riviere pour les besoins de son Industrie. Cette faculte d'acces a la riviere n'e^t pas un avantage exclusif, mais au con- traire, cette faculte peut etre exercee par tous autres sujets de Sa Majeste, et que partout, elle ne confere aux pro- prietaires riverains que dps avantages indirects, sans leur conferer un droit li une indemnite, pour la privation de tels avantages. La Cie du Chemin de Fer du Nord & Pion et al. Q. Judgment re- versing, 4 February, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cro-s, Baby, .J.T. Kamsav, J. dis. Rep. 14 Rev. Leg. 177. 4 Dec. d'A. 358. 9 L. N. 21 s. Celui dont la propriete borde uiip eau courante ne faisant pas partie flu domaine public, peut utiliser et exploi- ter cette eau en y construisant une chaussee d'une hauteur suffisante pour faire marcher le moulin qu'il a cons- truit siir sa propriete ; que le proprie- taire d'un moulin superieur auquel ces travaux nuisent en y faisant relluer les eaux, ne peut demander qu'une in- demnite et n'a droit a la demolition des travaux qu'a defaut du paiement de I'indemnite. Demers & Germain. Q. -Judgmeni, confirming, 6 May, 1886. Sii- A. A. Dorion, C. .J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 14 Rev. Leg. 36!), 9 Leg. News .305. II n'y a pas lieu a une action en com- plainte ou negatoire, au cas de I'ecou^ iement naturel des eaux, memes aug- mentees en volume par la culture, d un heritage superieur a un heritage inferieur. Dans I'espece aotuelle il n'y a pas lieu a recours en dommages. Faucher cfc Hall. Q. Judgment confirming, 7 February, 188.5. Sir A. A. Dorion, C. J-. Ramsay, Tessier, Cross, Baby, .JJ.Baby, J., dissenting. Rep. 11 Q. L. R. 15. The riverain proprietor may recover damages against the owner of a raft tor mooring his raft opposite the property of Plaintiflf, and close to the shore, not being driven there by stress of weather or any necessity of navigation, and leaving it there so long as to create a nuisance. Dunning & al & Gironarii al. M. Judgment confirming, 16 Manli, 1877. Dorion, C. J., Monk, Eamsay, 621 ROABS UOADS 622 Sanborn, Tessier, JJ. Rep. 9 Rev. Leg. ,1-77. A lumbemian whose logs drift on to the land of a riverain proprietor is liable for the damages caused to the land, it he does not use due diligence in pre- venting the logs becoming stranded on the land, or, it that be impossible, if he does not use due diligence in removing them. Morneau & Atkinson. Q. Judg- ment reversing, b June, 1 877. Dorion, C. J., Monk, Kamsav, Sanborn, Tessier, JJ. Damages are due by persons lum- bering who leave their logs on the low lands by the river side and so ca'ise injury to the proprietor. Guilmoy & Methot. Q. Judgmer.t confirming, 4 Dec, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, .J J. Where the legislature authorizes works in a public river, and a person navigating such river runs upon these works and suffers damage, he cannot claim damages from the persons to whom the right to make such works is conceded. But where the works to be marie are to be such as wid not obstruct the na- vigation, and in fact they do obstruct it, the conce.isionnaires will be liable. And this liability will not cease, al- though by the terras of the act the plan to the wo ks was to be submitted to the Governor, and was actually so submitted and sanctioned by him. The loss of the use of his vessel, damaged by the accident, during the spring of the year, in the absence of any evidence of want of diligence in repairing it, is a good measure of dam- ages. 27(6 Pierreville Steam Mill Co. Jt Martineaii. M. Judgment confirming, 21 Dec, 1875. Monk. Tascherpan, Ram- say, Sanborn, Sicotie, J J. Sicotte, J. dis. Rep. 20 J. 2J5. ROADS — Private improvements to a public Road — Les Appelants ayant, il y a nombre d"annpes, construit a leurs frais ot [joiir Talimentation de leur moulin un cliemin pont4 dans la pa- roisse de Ste. Genevieve, renouvelerent' le pontage a mesure qne le besoin s'en faisait sentir, permettant au public d'y parser. En 1880, ils firent I'acquisition d'une lisiere de terre voisine, ouvrirent un chemin prive qu'ils fermerent d'une barriere a chaque extremite, enleverent les bons madriers qui se trouvaient sur I'ancien chemin pour les placer sur le nouveau, tout en jetant de cote les mauvais. L'lntimee poursuivit par une action possessoire concluanta la remise des madriers ou au pa'ement de $2506 de dommages et a ce qu'elle fut main- tenue dans la possession du chemin. Lejugement de la Cour Inferieure a, accepte les conclusions possessoires de I'action, mais refuse les dommages. .Tiig4 en appel : lo. Que l'lntimee n'ayant pas produit de oontre-appel, la Conr d'Appel ne peutse prononcerque sur le possessoire. 2a. Que le ftiit des Appelants d'enle- vei'le pontage, lequel ne tennib, ni d fer ni d, clous, et n"avait pas ete mis la il perpituelle demenre, n'a pas eu pour but d'enlever a l'lntimee la possession civile du chemin, et qu'en consequence les conclusions possessoires aur;dent da etre refusees. Price & The Corporation of Ste. Genevi&ve. Q. Judg nent revers- ing, 4 Feb., 1881. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby. JJ.- Ramsay, J., dis. Rep. 8 Q. L. R. 67. ' The Prov'incial Government, by an order in Council, ti-ansferred all the rights it had in a road situated in the municipality of St. Valier, and over the house and ground where the keeper of a toll-bridge lived. Independently of this- .order in Coun il the municipality coukl bave clnimed this road as a municipal highway. The municipality did not need to produce an authorisation of the municipal council to sue. The attornies of th« corporation are not disavowed.- Q. .Judgment confirming, 4 Dec, 1880. Dorion, C. J., Moid?, Ramsay, Tessier,.. Cross, JJ. Rep. 1 Dec. d'A. 147. Municipality —its obligations The owner of a property through which the municipality opens a front road, at his 623 ROADS (i24 own cost, and that this rule apphes to cases as well before as since the coming into force of the Municipal Code. Whit-- man & The Corporation of the Town- ship of Slanhridge. M. Judgment con- firming, 29 Nov., 1881. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, J J. Bamsay, J., dis. Rep. 26 J. 144. 4 Leg. News 406. 2 Dec. d'A. 112. A municipality is liable for damages incurred by the bad state of a munici- pal road, although by the arrangements between the proprietors and the muni- cipality, the former are bound to keep the road in order. A man having drunk so as to be excited will not discharge the munici- jiality of its liability for damages arising from the bad state of a municipal road, unless it can be shown that the condi- tion of the Plaintiff was the cause of the accident. Martin & The Corpora- tion of the Township oj Ascot. M. .Judgment reversing, 20 June, 1879. •Sir A. A. Dorion, C. J., Monk, R-imsay, Tessier, JJ. Rep. 2 Leg. News 227. A contractor having to use a road within the limits of the cori^oration re- spondent found the road out of repair. He notified the corporation to repair which they neglected to do. He then repaired a bridge which was in a dan- gerous state and sued the corporation for the expenditure and damages sus- tained by the bad repair of tlie road. The corporation demurred, and the demurrer was succesful in so far as re- gards the repairs of the bridge, the court noting, that the law gave a mode of compelling a corporation to repair its highways, and that a private person had no action for repairs. On the issue as to damages for the bad state of the road the parties went to trial and the court of first instance awarded substan- tial damages. The corporation took the case to Review and the Court of Review reversed the judgment awarding dam- ages. The contractor then appealed from both judgments. The one dismiss- ing the action for repairs, and the judg- ment as to the damages. The Court of Appeal maintained the judgment in- Review. lieaucage & The Corporation of Deschambault. Q. Judgment con- firming, 7 October, 1886. Sir A. A. Do- rion, C. J., Ramsay, Tessier, Cross, Baby, JJ. The Chief Justice Practice. r. Pleading s SAISIE-ARRET.— Cession of the righis of a contractor Knowledge of debtor Dorion & Dufresne et al. Q. Judgment reversing, Dec, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Ramsay, Baby, JJ., dis. as to extent to which judgment should be reversed. Rep. 5 Leg. News 4 IS. It is ground for a saisie-arrit " That for more than a year past, said Defen- dant has been unable to meet his en- gagements, according to his own adnjis- sions ; — That he has said to deponent in writing, in answer to applications for payment, that he could not hardly find money for current expenses ; Thut he has sold and disposed of a great portion of his household furniture and effects and secreting them ; That ihe sHid E. A. Prentice had a large interest in cer- tain iron ores in Pictoii, Nova-Scotia, which rights and interests the said Prentice has made away with, in whole or in part, to the prejudice of deponent and other creditors; That recently having become possessed suddenly of a considerable sum of money, he has placed the sum of $40U0.0U upon a property purchased in the name of his sister-in-law." Prentice ifc Ansiin. M. Judgment confirming, 18 Sep., 1878. It is no ground for the issue of an attachment against the property of Defendant, that he has advertised his furniture for sale. Primeau et al. & Trudeau. Q. Judgment confirming, 7 June, 1878. Dorion, C. J., Monk, Ram- say, Tessier, Cross, JJ. Monk, Tessier, JJ., dis. Rep. 8 Leg. News 566. Where by judgment on a saisie arret en wain tierce, the saisi has been con- demned to pay the amount to the cre- ditor of his creditor, the saisi is not liable to an action by his former credi- tor, so long as the saisie arrri. is bind- ing. Thiberge & Fovrnin: Q. Judg- ment confirming, 8 June, 1876. Hep. s^- Rev. Leg. 390. ,' The attachment in the hands of s. garnishee of a debt afterwards due to the Defendant by the garnishee, is valid, if such debt becomes due before the garnishee makes his declaration. The Molsons Bank & TAona s. M. Judg- ment reversing, 22 November, 18!il.„ Sir A. A. Doiion, C. J., Ramsay, Tessiw, Cross, Baby, JJ. Rep. 5 Leg. News 252. 2 Dec. d'A. 176. Bank shares cannot be seized by saisie arret. Hudnn et al. & Fainchaud et al. M. Judgment confirming, June, 1 S7.i. Monk, Taschereau, Ranasay, Snn- born, Belanger, JJ. Certain goods wore seized by saisie- arret simple. The Opposants inter- vened as being proprietors of the thinss seized, but instead of contesting the rights of the seizing creditor, they gave a bond that the goods should be forth- coming to answer the judgment of the Court, and thus got the things into their possession. The riaintift' succeed- ed and proceeded to execute the judg: ment. The sureties then opposed the execution as being owners of the things. Held, reversing the judgment of the Superior Court, that they were estopped from urging this title as against the seizing creditor imtil they had returned, the things seized before the Court Prevost ^y- Dorion, C. J., Slonk, Ramsay, Tessier, JJ. 629 SAISIE EXECUTION SAISIE CONSERVATOIRE 630 SAISIE EXECUTION.— The Defendant, in making an abaidonment, reserved buildings constructed by him on the property after the Plaintiff got his mort- gage. Held, that the reservation had no effect, and that the removal by De- fendant of the buildings while the pro- perty was under seizure was a deterior- ation within C. C. P. 646. (1) Gaillovx et al.& Bureau. Q. Judgment confirming, 8 February, 1 8S4. Monk, Ramsay, Tes- sier, Cross, Baby, JJ. 'IVssier, Baby, 33. dis. Eep. 7 Leg. News 90. A seizure on a curator non possidenle will be set aside on opposition. Tempest et al. & Baby et al. M. .Judgment con- firming, 20 September, 1882. Sir A. A. Dorion, C. .!., Monk, Ramsay, Tessier, Cross, JJ. Rep. 2 Dec. d'A. 371. Where a Ian 1 was sold conditionally on the purchaser paying the price, and the purchaser did not pay and the land was in the possession ol the vendor, it cannot be taken in execution by a cre- ditor of the purchaser. Wither & Boi.t- vert. JI. Judgment reversing, 29 March, 1S83. Sir A. A. Dorion, C. .J., Ramsay, Tessier, J. dis. Ofimmoveabteprnperfi/ Opposition to sale of pari Lorsque par une oppo- sition afin de distraire a une saisie d'immeubles, I'opposant ne i-eclame qu'une partie indivise des immeubles saisis, le creancier saisissant ne pent faire ordonnei- la vente de la partie qui n'est pas reclamee par I'opposant, avant que la conte-tation sur I'opposition ne soit videe, ou du moins sans donner avis de sa requete a la partie saisie. Chinic et vir & The Trust and Loan Co. M. Judgment reversing, 31 (Jet., 1883. Sir A. A. Dorion, C. J., Monk. Ramsay, Tessier, Cross. 3.]. Rep. 3 Dec. d'A. 2.^9. The provisions contained in art. 642 (1) The jiitigment, debtor cimnnt, nor can imy other person, nuttimherou the property seized or in any manner deteriorate the same, ou p,iin of being imprisoned for a term not exceeding six months, under a rule of Court ou the order of a judge in vacation. G. 0. P. (1) are applicable only to cases wherein the second or subsequent writ of execution against the land of a debtor is placed in the sheriffs hands while he^ is still in possession of the writ on which the said lands have been seized, and while he is still in a position to- proceed to the sale of such lands on day fixed for the sale. Accordingly, where an opposition has been filed to a seizure of land and the seizure has been suspended, and the sheriff has returned the writ and ;jro- c&s verbal of seizure into the prothono- tary's oflBce, a second seizure of the same lands may validly be made for another debt, and the sheriff is not re- quired to note such subsequent writ of execution as an opposition for payment upon the first writ. Fuller et al & Flet- cher. M. .Judgment reversing, 1.5 Feb., 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, .JJ. Rep. 25 J. 93. 4 Leg. News 26, 1 Dec. d'A. 102. In certain cases, as when the same parties have another suit pending, which may alter the balance of indebt- edness, the Court may suspend execu- tion in a case decided, and the suspen- sion of the execution may be extendeil to the costs of the attornies. Dnrion & Dorion. M. Judgment confirming, 31 October, 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. SAISIE CONSERVATOIRE.— The un paid vendor of moveables hns a right, under art 1543 of the Civil Code, to demand the resolution of the sale, under the circumst'inces stated in that article, even after the expiration of the (l) "When the sheriff has seized an immo- veable upon a Defendant he rannot seize it again at the suit of another creditor, or of the same creditor for another debt, as long as the first seizure subsists ; but he is bound to note any subsequent writ of execution as an oppo- sition for payment upon the first writ, and in such case tfie first seizure cannot be aban- doned nor suspended, except in consequence of oppositions applicable als well to the seizing creditor as to those whose writs of exeeution have been noted as oppositions, or with their consent, or by order of a judge. 631 SAISIE-REVENDICATION SALARY 632 eight days allowed for revendication by art. 1999. In an action claiming such resolution the Plaintiff has a right to attach the moveables by a saisie conservatoire, and, although his attachment may be in the nature of a saisie revendication, it will nevertheless avail to him as a saisie conservatoire. Henderson & Tremblay. M. Judgment confirming, 3 February, 1876. Dorion, C. J., Monk, Hamsay, Sanborn, Tessier, JJ. SAISIE - GAGERIE. — The writ of, should contain a description of the property leased, and a general refer- ence in the writ to the property men- tioned in a deed annexed is not suffi- cient. The executing officer's duty is to obey the writ and not instructions outside it. Rohitaille & Malletie. Q. Judgment granting leave to appeal, 4 Sep., 1875. Dorion, C. J., Monk, Tas- chereau, Eamsay, Sanborn, JJ. The Insolvent Act of 1875, sects. 78 and 125, having given a summary re- course to privileged and hypothecary creditors against property in the hands of the assignee, has taken away the right of the lessor to proceed by saisie- gagerie in the hands of the assignee. Beausoleil & Frigon. Q. Judgment reversing, 4 Dec, 1880. Sir A. A. Do- rion, C. J., Monk, Ramsay, Cross, Baby, JJ. Eep. 1 Dec. d'A. 70. Clauses 78 and 125 Insolvent Act 1875, which gives the lessor a summary remedy for recovery of his rent, ex- cludes the right of action by saisie- gagerie. Beausoleil & Frigon. Q. Judg- ment reversing, 4 December, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Monk, J., dissenting. Reported 1 Dec. d'A. 70. SAISIE-REVENDICATION of com in the hands of carrier. Carrier pleaded that the corn was not the property of Plaintiffs, but had been placed in his hands by one Bucknall who was the owner. Appellants (Plaintiffs in the Court below) borrowed 25,000 bushels of corn from Brown, McMinn & Co., and gave $17,560 as security. They returned the com but did not get back their money, and the corn was sold to Buck- nall who paid for it. Held, confirming thejudgrhent of the Superior Court, that the Appellants had no title to the com to permit of their attaching it in the hands of an innocent buyer, and that the carrier could plead the defence of the owner. Borrowman et al. & Bass. Judgment, 18 December, 1876. Monk, Eamsay, Sanborn, Tessier, JJ. The Chief Justice was present at the hearing but did not take part in the judgment. A quantity of butter being seized by saisie revendication, the Plaintiff ob- tained possession of it, on giving secu- rity (869 C. C. P.) (1) that he would return the butter or the value of it according to the judgment to be ren- dered in the case. Plaintiff abandoned the suit and Defendant sued the secu- rities for the butter or its value. Held that the sureties were liable. Pouliu & Hudonetal. M. Judgment, 15 Septem- ber, 1874, Dorinn, C. J., Monk, Tasche- reau, Ramsay, Sanborn, JJ. Rep. 6 Leg. News 314. SALARY, — Payment of, by share of •profits Appellant in February, 1869, agreed to serve Eespondents as mana- ger of the Life and Guarantee Depart- ments of the Eespondent's business at a salary of $2,000 and a commission of ten per cent, on the net balance carried over on the 31st December of each year in the Life and Guarantee Insurance Department after payment of all losses and expenses therein, the said agree- ment to date from and after the tirst of May, 1869, with a free dwelling on the premises of the Respondent. Ap- pellant entered into the service of Respondent as manager under such agreement, and continued to act for a) The Defendant, upon u, demand in re- vendication, may have the effects returned into his posijession upon giving good and saf- fioient sureties th.it he will produce them when required, wtiich he is in such case bound to do in the same manner as any juil'- cial sequestrator. Nevertheless the Ooiu:t or judge may, according to circmnstaaces, graat possession of the etfects to tlie Plaintilt, suD- ject to the same conditions. 633 SALE SALE 634 them from May 1869 to May 1870. The Appellant then contented that the net balance in the guarantee department which should have been carried over, and upon which he was entitled to his commission of ten per cent from the 31st December 1869, was $12,469.68, and in lieu the Respondent erroneous- ly made the net balance $7,154.44 by deducting therefrom certain losses &c. Held, that he was not entitled to his 10 p. c. on accounts unsettled on the 31st Dec, and his claim must be re- duced in proportion. Bowlings & Ci- tizens Insurance and Investment Co. 8 B. L. 368 Q. B. 1876. M. Judgment confirming, 22 June, 1876. Dorion, C. J., Monk, Eamsajr, Sanborn, Tessier, JJ. SALE. § 1. to wife, of necessaries. § 2. Evidence of. § 3. Foe undiscovered PKixciPAr.. § 4. Op Pledge. § f>. Error. § 6. Encumbrance. § 7. Promise of. § 8. Op stolen goods. § 9. Of Immoveable property. § 10. En bloc. § 11. Op book debts en bloc. § 12. Of undetermined rights. § 13. By sample. § 14. Of horse without special war- ranty. § 15. Deplaobment. § 16. Faculte db remeee. § 17. En Justice. § 18. Super non Domino. § 19. Payment op Price. § 20. Judicial or Moveables. § 21. By Assignee. § 22. By Auction. § 23. Registration op. § 24. Op good will. § 25. Of PropEKTY of Minor. § 26. Delivery. § 27. Warranty. § 28. Simulated § 29. By Agent. § 30. Possession. " Sale is a contract by which one party gives a thing to the other for a price in money which the latter obliges himself to pay for it — It is perfected by the consent alone of the parties, although the thing sold be not then delivered } subject nevertheless to the provisions contained in article 1027, and to the special rules concerning the transfer of registered vessels." C. C. 1472. This article establishes a rule differ- ing from that of the old law. Under favour of the exception, the doctrine of the Courts has limited the extent of the change. A sale may be verbal, as to evidence of such sale. McLellan & McLellan. M. Judgment reversing, March, 1875. Do- rion, C. J., Monk, Taschereau, Ramsay, Belanger, JJ. Taschereau, Ramsay, JJ.,- dis. as to sufficiency of evidence. Where a sale is fraudulent the pre- sumption of possession may be rebutt- ed. Kilgour & Logan. M. Judgment confirming, 3 February, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier,. Cross, JJ. Ramsay, J., dissenting as to the sufliciency of the evidence. i \. To wife, of necessaries A wife commune en Mens, who purchases neces- saries for the family of her husbaud and herself, only binds the community and in no way binds herself personally, un- less she afterwards accepts the commu- nity, and then only to the extent of one half, or (where there is an invento- ry) to the extent she may have profited by the community. A wife, siparie de Mens, who pur- chases necessaries for the family of her husband and herself, but not in her own name, and which purchases are charged by the seller to the husband, is not liable to the seller for the price of such necessaries. Hudon et al. & Marceau. M. Judgment reversing, 14 Dec, 1878. Dorion, C. J., Monk, Ram- say, Tessier, Cross, JJ. Rep. 23 J. 45. 1 Leg. News 603. 4 Rev. Leg. 619. Where goods are sold to the husband and credit is given to him, his wife separated as to property will not be held liable. (The case of Hudon et al. & Marceau, referred to 23 J. 45.1 Pa- quetie & Guertin et al. M. Judgment (53d SALE SALE 636 confirming, \^ June, 1879. Sir A. A. Dorion, C. J., Monlc, KHujsay, Tessier, Cross, J J. Kep. 2 Leg. News 210. A wife s4par£e de biens is not liable for the price of necessaries furnished to the husband, and on his credit. Nor can she become liable by endors- ing his promissory note given in pay- ment of such effects. Bruneau & Barnes et vir. M. Judgment reversing, 22 June, 18yU. Sir A. A. Dorion, C. J., Monk, Kamsay, Cross, ] J. Monk, J. dis. Kep. 3 Leg. News 301, 25 J. 245. Evidence Where the father and son have the same names, and the venilor contends sale was to the father and not to the son, and that the entries in ven- dor's bookswere debited to the son, and the fact that the goods were delivered iit the son's place of business will, if unexplained be conclusive evidence that the sale was to the son, and the father cannot be charged with them without proof in writing of his under- taking to pay for them. Masson et al. & Dominique Rosaire, pere. M. Judg- ment confirming, 2 Feb., 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, 33. A memoiandum of a sale made at the request of Defendant, though not signed by him, will be a sufficient com- mencement de preuve to admit parol evidence on an action to execute a deed. Bernard & Boutin et al. Q. Judg- ment reversing, 7 September, 1874. Doiion, C. J., Monk, Taschereau, Bam- tay, Sanborn, JJ. Where a party by a letter refuses to receive delivery of goods, giving as pre- text the failure to conform to the con- ditions of the contract, such letter furnishes a commencement de preuve par icrit, and enables Plaintiff to esta- blish his case by parol. Lament & Ronayne et al. M. Judgment confirm- ing 15 September, 1874. Dorion, C. J., Monk, Taschereau, Eamsay, Sanborn, JJ. Where it was admitted that there was no writing to establish the alleged contract, questions put to the witness tending to prove an acceptance of the goods by words were properly over- luled. Munn et al. & Berger. M. Judg- ment confirming, 31 Oct., 1 883. Sir A, A. Dorion, C. J., Monk, Ramsay, Tessier. Cross, JJ. Rep. 6 Leg. News 363. This judgment was reversed by the Supreme Court ; but the reason why, has not been revealed, save by the varying tale of rumour. It is s-aid, that the Supreme Court held, that no writing was neces- sary: This would be a comprehensible ground, for it would only amount to a ruling on the interpretation of certain articles of the Code. But another grountl has been confidently put for ward by persons present when the judgment was delivered. They say, it was maintained that the evidence was stopped too soon, and that, although a writing was necessary, it did not follow this evidence might not be produced later. It is to be hoped that this last report is correct. It is better that the judges of the Supreme Court should be ignorant of the ordinary jud.cial rules in matters of detail, than that they should disastrously misinterpret the Code. § 3. Undiscovered principal Teniir — A., acting for B., his undiscovered principal, sold to C. a cargo of coal to arrive, C. to have the option of taking the coal at the weight given in the bill of lading or of having it re-weighed at seller's expense. C. accepted the coal without re-weighing, but after- wards weighed it in his own yard, without notice to the seller, and mixed it with other coal. Held, (I) that B. the undiscovered principal, might sue on the contract in his own name. (2| That C. by tendering in hisseoond plea the price of the coal admitted to have been received, acknowledged that the action had been properly brought by B. (3) That C. by accepting the coal without re-weighing forfeited bs rights in respect to a defioieney.'' W Canada Shipping Go. & The Tictor Eudon Cotton Co. M. Judgment rev- ersing, 24 March, 1882. Sir A. A. Do- rion, C. J.. Monk, Eamsay, Tessiet, Baby, JJ. The Chief Justice & Eamsay, J. dissenting. Reported 5 Leg. News i>0 I SALE SALE 638 309. 2 Dec. d'A. 356. This jmJgmont was aiRmied in the Supreme Court. A deed of sale only transfers the title of the vendor. So where goods are seized in the possession of A, and B pre- tends she has a title to them from C. B. must show that the pretended ven- dor was owner. Larue & vir & Molsons Bank. M. Judgment confirming, 3 February, 1880. Sir A. A. Dorion. C. J., Monk, Ramsay, 'i'essier, Cross, JJ. Tes- tier, J. dissenting. A deed purporting to be a deed of s:ile of moveables may really be only a )iledge, and if the real owner keeps the things ill his posse.-sion they may be seized by another creditor, antl an in- tervention by the party claiming on the deed will be dismissed. Goidun et al. & Rotte. M. Judgment confirming. 16 September, 1S79. Sir A. A. Dorion, C. J., Monk, Hamsay, Tessier, Cros-., JJ. Hep. i Leg. News 34N. A sale of moveables with a conire- lettre stipulating this sale was only passed to secure the payment of money tlue to the apparent purchaser, with the condition that the latter should retrocede the moveables as soon as the debt was paid constitutes a pledge and not a sale. Gary & The Paper Com- pany of Canada dt dl. Q. Judgment confirming, 5 June, 1879. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Gross, JJ. Reported 10 Rev. Leg. 501. Where a deed purporting to be a deed of ?ale only, constitutes a pledge, there must be tradition to give lien. Parent & FalarAe.au. Q. Judgment confirming, 5 June, 1880. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Cross, JJ.. § 4. Of pledge A quantity of tim- ber was pledged for the payment of a diaft, and if the dralt was not paid, the holder was to sell the wood and place the proceeds to the owner's cre- dit. The draft was not paid, the owner of the wood became insolvent, and the Jiledgee sold the wood, of which he never had actual delivery. Held, that the pledgee could not place the balance of the price of sale, after paying the dr.ift, to the credit of a former indebt- edness of the owner. Perkins & Ross & Smith. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Q. 8 March, 18S0. Reported 6 Q. L. R. 65. Where Appellant had pledged a number of shares of stock with a bank for advances and the latter sold them without authority of Appellant to do so. Held, that the bank was liable in damages. Gllman ■ & Campbell.. M. Judgment reversing, 30 December, liS85. Sir A. A. Dorion, C. J., Monk, kamsay, Crois, JJ. Where a sale of real estate is made by an insolvent, to a person knowing his insolvency, and the apparent ven- dor keeps possession of the lands sold, the deed will be deemed to be simul- ated and to have been made to defraud the creditors of the vendor. Marcoux & Leroux. M. Judgment reversing, 29 March, 1883. Sir A. A. Dorion, C. J,, Monk, Ramsay, Tessier, Baby, JJ. Where it appears by the a Imission of a party that reacquired a deed to real e-tate to secure an hypothecary debt and that he had verbally agreed with the owner to return the land when the amount of debt and interest was paid he may be dispossessed of the property by the creditors of the vendor on their giving security that the debt and interest will be paid. Pacaud & Huston. Q. Judgment confirming, 8 March, 1877. Monk, Ramsay, Sanborn, Tessier, JJ. Ramsay, J. dissenting. Reported 8 Rev. Leg. 169 ; 3 Q. L. R. 214. Real estate estimated to be worth about $1200 was sold to a person with- out means, for a consideration stated in the deed to be S3,650. No money was paid, and the vendors remained in pos- session. 'I'he vendee executed a deed of obligation and hypothec in favor of the vendors for the unpaid instalments. Two of these instalments, amounting to $2 000, were subsequently transferred by the vendors to W. in payment of goods. Held : — That the sale of the property 639 SALE 640 and the obligation and liypotliec in favor of the vendors being simulated and fraudulent, W., was entitled to have the deed of obligation and hypo- thec from the vendee to the vendors set aside as regards him (^the vendee being a party to the suit), and to ask that the vendors be condemned to pay for the goods as his personal debtors. Black et al. & Walker, M. Judgment confirming, 9 December 1884. Sii' A. A. Dorion, C. J., Monk, Eamsay, 'I'essier, Cross, JJ. Monk, Cross, JJ., dissenting. Eep. M. L. E. I. Q. B. 214. 8 Leg. News 67. A sale of machinery in a mill attached clfer et a c?0!/s, and forming a necessary part of the mill, to a priest, the brother- in-law of the vendor, who remains in possession of the mill and machinery, and who held himself forth as owner thereof and acted as if he were such owner, will be held to be a simulated sale, and not to convey the property of the said machinery. Thihaudeau & Mailley, M. Judgment reversing, 25 Jan. 1883. Sir A. A. Dorion C. J., Eam- say, Tessier, Cross, Baby JJ. A purchaser of movable property on certain conditions is not obliged to accept delivery of the articles sold, if those conditions are not complied with. Lavigne & Villars, M. Judgment con- firming, 14 December, 1877. Sir A. A. Dorion C. J., Monk, Eamsay, Tessier & Cross JJ. , Special warranty as to manufacturer of article sold. Richardson & Lemtsu- rier. Q, Judgment confirming 7 Deoem.- ber 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross JJ. Where a stove was to be made accord- ing to certain directions, and these were not complied vdth ; but the pur- chaser accepted it, used it and did not tender it back, he will be compelled to pay the price agreed upon. Semble, the purchaser might have pleaded less value, which he did not. Dwane & Burns, M. Judgment confirming, 14 December, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. A settlement of account including the goods' sold is a waiver as to any ob- jection to the quality. Duhaime & Ayotte, Q. Judgment reversing, 19 June, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross JJ. Eeported I Leg. News 273. Where a party has accepted and re- tained goods sold to him for part of a contract, and afterwards declines to fulfil his part of the conditions of sale, he cannot claim damages from the other party on the ground that the goods accepted were of inferior quality. Kennedy & Falardeau. Q. Judgment confirming, 7 June, J 879. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. It is no defence to an action for the balance remaining due on the price of an article that has been accepted and retained, that it is worthless. Lahnck et al. & Alarie. M. Judgment confirm- ing, 28 January, 1878. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Where real estate is sold described as being bounded on one side by "Bel- mont Avenue," there being in fact no avenue but a projected street, not be- longing to the vendor, it is not a war- ranty that there will be a street made there. Wood & St-Germain et al. M. Judgment confirming, with some reserve 24 November, 1882. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, ; JJ. Tessier, J., dissenting. § 5. Error.— Under a convenant to sell and convey " all the estate, right, title, interest, claim or demand" that the vendors had in certain lots specifle(^ an action for damages cannot be main- tained against the vendors for failure to deliver the whole of the lots men- tioneni, where they had included pj mistake a lot to which they had no claim. Fulton & McDonnell et al. 1*»* Judgment confirming, 2rSeptemher, 1878. Dorion, C. J., Monk, Bamsay, Tessier, Dunkin, .TJ. Eeported 1 Leg. News 531. Error in the minutes of seizure as to the contents ot an immoveable bearing a cadastral number will not alone sup- 641 SALE SALE 642 port a demand by the purchaser to have the sale amended on the ground of misdescription, even where a lot of 30 feet front is described as having 45 feet front. But vfhere it is described as having a house upon it, when in fact the house was partly on the lot and partly on another, the purchaser may have the sale set aside for misdescrip- tion. La Compagnie de Prtt et Credit Fonder & Baker et al. M. Judgment confirming, 16 Sep., 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tesfier, Cross, ii. Rep. 24 J. 45. The value of a deficiency in quantity of land sold may be recovered by an action of damages, and the diminu- tion of price allowed by art. 1201 C. C, is only a measure of damages. Douire & Bruyire et al. .Judgment reversing, 21 Dec, 1878. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Rep. 24 J. 17. Where property was sold without measurement to persons who had been long in possession and who knew per- fectly what they were buying they will not be permitted to defeat the vendor's action by pleading the difaut de conte- nance according to an official plan. Bruneau et vir. & Benoit. M. Judgment confirming, 9 December, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Baby, J J. § 6. Encumbrance. — Notwithstand- ing a clause in a deed of sale of land, that the purchaser might at any time keep the whole or any part of the pur- chase money in his hands until the vendor should furnish him with a registrar's certificate showing the pro- perty to be free and clear of all mort- gages and incumbrances whatsoever, the purchaser in an action for the recovery of a portion of the purchase money, will be condemned to pay, in the absence of such a certificate, when it is shown that he has in his hands a sufficient balance of the purchase money to meet any possible disturbance or trouble in his possession of the land sold. McDonnell & Goundry. M. Judg- ment confirming, 22 December, 1877. Dorion, C. J., Monk, Ramsay, Tessier, 21 Cross, JJ. Dorion, C. J., dissenting Reported 22 J. 221. With stipulation that a portion of the price should remain in the hands of the purchaser till the decision of certain legal proceedings relative to an assessment by the corporation for a public improvement. Held, that the suit had been decided, and that the purchaser was no longer exposed to any danger from the trouble provided for, and therefore was obliged to pay the balance. But that as the corpora- tion had since obtained legislative power purporting to authorize a new assessment, the purchaser was only condemned to pay portion of the balance of the price, to wit $500 on re- ceiving security that he would not be troubUhj this new assessment. Chalut & La Banque Jacques Cartier. M. Judg- ment reversing, 20 September, 1882. Sir A. A. Dorion, C. J , Ramsay, Tessier, Ci'oss, Baby, JJ. Tessier, J., dissenting as to costs. 2 Dec. d'A- 369. Condition that the whole price should become exigible, in case of sale with- out the consent in writing of the vendor. The owner sold to a building society promising to erect a building and the usual clauses in such contracts of reimbursing the building society. The heirs of Logan claimed the whole price. The building society pleaded that they had a right to retain the pro- perty till they were reimbursed the money expended by the previous holder, really by the society. The Court held that the work was not done by the building society or with their money, but by the previous holder, who was personally liable, and who therefore had no claim for re-imburse- ment. Grant et al. & La SociStS Per- manenie de Construction. M. Judgment reversing, 25 January, 1883. Sir A. A. Dorion. C. J., Ramsay, Tessier, Cross, Baby, JJ. A special condition of sale in which Defendant has no interest. Real estate of a substitution was sold, and the purchase money was allowed to remain in the hands of M., the purchaser, until another investment should be 643 SALE SALE 644 found. Subsequently, a mode of in- vesting the purchase money was duly authorized by a family council. Held, that M. could not refuse to pay over the money on the ground that the pro- posed investment was not in strict accordance with the terms of the deed creating the substitution. Mullin et al. & Michon. M. Judgment confirming, 14 December, 1878. Dorion, C. J.. Monk, Eamsay, Tessier, Cross, JJ. Reported 1 Leg. News 603. Appellants sold a piece of property to Respondent on which there was a dam. Respondent, alleging that Ap- pellants use and have possession of this dam, calls upon Appellants to destroy it. Appellants admit that the dam is in their possession and under their control, and the judgment is for the Plaintiff Respondent. Price et al. & Chartre. Q. Judgment confirming, 4 October, 1884. Sir A. A. Dorion, 0. J., Ramsay, Tessier, Cross, Baby, JJ. § 7. Promise of. — Wilber gave Cro- teau a deed sous seing privi to the fol- lowing effect : " This indenture or bond wit- " nesseth that John Wilber hath •' this day sold, granted and bargained, " to the said John Croteau for the " consideration or price of one thou- " sand dollars currency, lot No, " " When the said John Croteau has " paid the said sum of one thousand " dollars and all interest thereon, the " said John Wilber will give the said '•■ John Croteau a good and warranty '■ deed." Croteau did not pay the price or any part of it, and before seizure he desisted from the purchase and gave it back to the vendor. Wither & Boisvert. M. Judgment reversing, 29 March, 1883. Sir A. A. Dorion, C. J., Ramsay, Tes- sier, Baby, JJ. Tessier, J. dis. Action to oblige Defendants to ex- ecute deed of sale. Question as to interpretation of agreement to divide hypothec according to a plan. Archam- bault & Massicotte. M. Judgment eon- firming, 14 June, 1878. Sir A. A. Do- rion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Evidence as to verbal promise of sale. Pay ton & Grandchamp. M. Judg- ment reversing, 21 December, 1877. Sir A. A. Dorion, C. J., Monk, Earn say, Tessier, Cross, JJ. Ramsay, Tes. sier, JJ. dissenting. Action to oblige Defendant to exe- cute a deed of sale of real estate or pay damages. Held, that the following let- ter from the promisor implied that there were no encumbrances on the property save '■ $2,300 mortgage on ground " : " Dear Sir, " I can offer you the house No 78 Fort St. at $4,300.00, on the foUowing terms: $1,000.00. cash, $1,000.00 in about two years, balance $2,300.00 mortgage on ground can remain as long as buyer requires, or can be paid off at any time, interest at 7°2o. The above isS the lowest price, but the first payment might be reduced somewhat, if it is an object. " Yours truly, '' W. Jones. " Allan Ritchie, " 26 Hospital St." Gauthier & Ritchie. M. Judgment con firming, 20 Jan., 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross. JJ. Ramsay, Tessier, JJ. dis. The Respondent not being put an demeure, did noi forfeit his right to ob- tain a deed of sale by his failure to make the yearly payments agreed upon. or by his failure to ratify. Grange & McLennan. M. Judgment confirming, 27 Jan., 1883. Sir A. A. Dorion, C. J-, Ramsay, Tessier, Baby, JJ. TheChiet Justice, dis. Rep. 6 Leg. News US. i Dec. d'A. 212. This judgment was re- versed in the Supreme Court, it being there held Sir W. J. Ritchie, C. J; Strong, Foumier, Henry, Ta-chereau, Gwynne, JJ. Fournier & Taschereau, JJ., dissenting), that the condition pre- cedent on which the promise of saie 645 SALE was made not having been complied with within the time specified in the contract, the contract and the law placed the plaintiff en demeure, and there was no necessity for any demande, the necessity for a demande being in- consistent with the terms of the con- tract, which immediately on the failure of the performance of the condition ipso facto changed the relation of the parties from vendor and vendee to lessor and lessee. A promesse de venie will be set aside if the party seeking to purchase fails to fulfil the conditions of the deed. Charlebois & St. Germain. M. Judg- ment confirming, 18 December, 1876. Monk, Eamsay, Sanborn, Tessier, JJ. Eep. 8 Eev. Leg. 306. § 8. Of Stolen Goods — Notwithstand- ing anything contained in articles 1488 and 2288 of the Civil Code of Lower Canada, a valid sale or pledge cannot be made of stolen goods, except in the cases mentioned in article 1789, so as to divest the real owner of his light to reclaim them from the purchaser, or pledgee, without reimbursing the price paid for or advances made on such goods,although the purchaser or pledgee, may have bought or made advances on the stolen goods bona fide in the ordi- nary course of his business. The words " nor in commercial mat- ters generally '' in article 2268 do not protect a trader acquiiing stolen goods in any commercial transaction, whether from a trader dealing in similar articles or not, but apply, apparently, to cases where the possession of the goods is obtained in a commercial transaction, whether by sale or otherwise, but under the same circumstances by which a sale would be protected under article 1489. Cassils et al., & Crawford et al. M. Judgment reversing, 15 March, 1876. Reported 21 J. 1. A farmer selling cordwood from his land is a trader dealing in similar articles within the meaning of C. C. 1489. Woo'd cut and sold from land held SALE 646 under a " location ticket " containing a prohibition to cut wood, is not stolen property within the meaning of the above article. The Canada Paper Co. & The British American Land Co. M. Judgment reversing, 20 September, 1882. Monk, Ramsay, Tessiei', Cross, Baby, JJ. Rep. 5 Leg. News 310. S. having cut timber without au- thority on the timber limits of the Respondents, sold the logs, to E. and transferred the price to the Appellants. The logs were sold for 80 cts per standard, and the standing timber from which they were made was worth 40 cts per standard. B. owed a balance of $3188.76 on the price of the logs pur- chased from S. Respondents, claiming that S. had no right to sell the logs and that the transfer of the price to Appellants was made in fraud of S's creditors, and that they were entitled to the balance due by E, sued the three, asking that E. be adjudged to pay them the 13188.76 he owed. Respondents were entitled, at their option, to claim their timber from E, on re-imbursing him what he had paid for it, or to claim the balance of the price which he owed. (Arts. 434-440 C. C.) As to S, they were entitled to claim the timber on reimbursing him the price of the labor to convert 'it into logs and convey it to market. (Art. 434 C. C.) S. could only transfer the price of labour to which he was entitled, and not the value of the timber, and that Respondents and Appellants were en- titled each to one half of the balance due by E, being in the proportion which the value of the timber bore to the price of the labour. (Arts. 434 and 440 C. C. ) Millar et al. & The Mer- chants Bank of Canada. M. Judgment reversing, 29 March, 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 3 Dec. d'A. 79. § 9. Of immoveable property. — Trouble. — Unregistered hypothecs. — 647 SALE SALE 648 The purchaser of real estate who is not evicted nor disturbed in his possession, has no right to obtain the resihation of the sale by reason of certain undis- charged hypothecs registered against the property (far exceeding in amount the whole capital of the purchase) and which were not declared to him in the deed, unless the vendor sold with a stipulation of franc et quitie. The Grand Trunk Railway Company of Canada & Brewster. M. Judgment re- versing, 20 January, 1883. Sir A. A. Do- rion, C. J., Eamsay, Cross, Baby, J J. Rep. 6 Leg. News 34. Plaintifl' sued for instalment of price of sale. He was met by an answer that part of the lands belonged to the Crown, and Defendant concluded for resiliation of the lease. This admitted that Plaintitfgave Defendant possession of the lands and that the latter is still in possession. The Superior Court by its interlocutory judgment ordered the parties to establish the line between the Seigniory of Courval and the Township of Wendover. An appeal was taken from this judgment. The Court set aside the said interlocutory judgment and condemned the Defendant Res- pondent to pay the amount of instal- ment due, on the Plaintiff, Appellant, giving security that Respondent would not be trouble. Judgment, 8 Sep., 1880. Sir A. A. Dorion, C. J., Monk, Tessier, Cross, JJ. Ramsay, J., dis. on the ground that the conclusions of Defendant were to annul the deed, and that there was no demand for security, nor any proof of trouble. § 10. En bloc. — By a writing sous seing prw€ L. purchased from D. 2265 cords of wood " as now corded at Port Lewis " for the sum of $4520, and by the same writing acknowledged receipt of the wood, declared himself satisfied therewith, and discharged the vendor, '' de toute garantie uMrieure." The purchaser having measured the wood, found it 423 cords short, and a portion of it rotten. Suit for value of wood not delivered and of the part that was rotten. Seld, that by the terms of the agreement the sale was en bloc, and not by the cord, and the purchaser could not recover. Latreille & Drolet. M. Judgment confirming, 14 December, 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Reported 1 Leg. News 29. § 11. Of book debts en bloc Ques- tion of evidence. Tarte & Blumhart. Q. Judgment reversing, 7 June, 1879. Sir A. A. Dorion. C. J., Monk, Ramsay, Tessier, Cross, JJ. The sale of the estate en bloc, that is the estate moveable and immoveable, does not prevent the Sheriff from levying the tax of one per cent, allowed under section 1 40 of the Insolvent Act of 1875, on so much of the amount of the sale as represents the real estate. Evans & Chauveau, JVI. Judgment con- firming, 22 November, 1881. Sir A. A. Dorion, Ramsay, Tessier, Cross, Baby, J J . A sale of 7924 shares of the stock of a railway company by the sheriff will not be declared null, because they were sold en bloc ; nor under the article 595 C. C. P. because they realized a sum much greater than sufficient to pay the debt, where there was no fraud, and the whole transaction was for the ap- parent interest of the parties concerned. There being no opposition to the sale, and the sheriff was therefore obliged 4 to sell according to the seizure, unless required by the defendant to alter the order of sale (595 C. C. P.) (1) Morris & The Passumpsic & Connecticut Rivers Railroad Company, M. Judgment re- versing, 25 September, 1876. Sir A. 'h. Dorion, C. J., Ramsay, Tessier, Cross, JJ. § 12. Of undetermined rights — Does not imply a warranty that they esst. Gareau & Deseve, M. Judgment con- firming, 18 September, 1877. Donon, C. J., Monk, Ramsay, Tessier, JJ. ^^ § 13. % SampZe.— "Where at an auo- (1) The sale must not proceed beyond the amount necessary to pay tne debt m pnncipaj. interest and costs. To this end thejudmeM debtor as a right to determine the order in which the effects are to be put up for sale. 649 SALE SALE 650 tion sale of damaged goods, for benefit of whom it may concern, without war- ranty, samples are produced at the re- quest of a buyer, he finding it difficult or inconvenient to go down into the hold of the ship to examine the goods (wheat in bulk), it willnot be presumed that this is a sale by sample. McLeod & Monham, Q. Judgment confirming. 8 Sep. 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Monk, Cross, JJ. Dis. Where there was a sale of coal of a certain kind, being the cargo of a cer- tain ship, and the contract gives no special warranty as to quality, as by sample, the sale will not be held to be by sample. The St Lawrence Tow Boat Company & Crawford ei al. Q. Judg- ment confirming, 5 June, 1 876. Goods sold by sample Evidence — Cushing & Coutu ei al. M. Judgment 22 June, 1877. Sir A. A. Dorion C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Monk, Sanborn, JJ. diss. Of horse without special warranty is only null if the animal has a concealed vice redhibitoire. Wind-gall is not a vice redhibitoire in a horse In an ac- tion to annul the sale of a horse for one vice, the Court is justified in refu- sing to allow Plaintiff to amend his de- claration and to allege another vice. Plaintiff should know why he seeks to set aside a sale at the time he makes the demand. Under article 1530 C. C. no time is fixed precisely for bringing an action to annul for vice-redhibitoire. It is a question of diligence left to the discre- tion of the Court. Lanthier & Cham- pagne. M. Judgment confirming, June J 874. Taschereau, Ramsay, Sanborn, Loranger, JJ. Taschereau, J., dis. § 15 Deplacement The sale of goods without deplacement gives rise to the presumption that the sale was simu- lated. Dupuy & Cushing. M. Judg- ment reversing, 22 March, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Gross, JJ. Monk, Ramsay, JJ., dis. Rep. 22 J. 201. Confirmed in Privy Council (I) on the ground that their was evidence of simulation, without pronouncing as to whether there would be no deplace- ment alone, since the Code, would of itself give rise to the pres umption that there was simulation. The Respondent sold machinery to Joseph Kiefifer. This machinery was in the hands of a firm styled Kieffer Brothers, both of the parties being brothers of Joseph Kiefifer. One White puri'hased the machinery from Joseph Kieffer, and Whitehead sought to re- cover the machinery alleging that his sale to Kiefifer was a simulated sale. While this litigation was going on, Whitehead obtained an orderof a judge giving him provisional possession of the machinery. Disregarding this order the Kiefifers and White had the property transferred to the possession of White, Whitehead then took a rule for con- tempt against them, on which they were condemned to restore the, goods in three days. This order they again disobeyed. The majority of the Court decided that White should be fined $100 for his contempt, but that he should not be compelled to deliver up the machinery, because in another action, in which judgment was rendered on the same day as the judgment on the rule, the machinery was declared to be the property of White. Judgment condemning White in a fine of $200. Whitehead & Kieffer. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Ramsay, J., dissenting thought the judgment should be confirmed. The machinery was White's so far as an ap- pealable judgment could make it so, but he had possessed himself of it ille- gally and he should not be allowed to profit by his wrongful act. It was an occasion to apply the rule, applicable in all possessory proceedings : " Spo- liatus ante omnia restituendus." Judg- ment 30 June, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Ramsay, J., dis. Though deplacement is no longer (1) See Appendix. 651 SALE necessary to the validity of a sale, yet where there is no d4placement fraud and simulation are easily presumed ; and where a pretended sale was a mere contrivance intended to obtain, under color of a sale, a security upon the effects, and thus avoid the delivery of possession which is essential to the validity of a pledge, it was held inoper- ative. Moffat & Burland. M. Judgment reversing, 27 May, 1884. Sir A. A. Do- rion, C. J., Monk, Rnmsay, Cross, Baby, JJ. Reported 4 Dec. d'A. 59. 7 Leg. News 182. Reversed in Supreme Court. 11 Sup. Court Rep. 46. A sale of moveables without dAplace- ment gives rise to a presumption of simulation or fraud. Danjou & Pelle- tier. Q. Judgment reversing, 6 Sep., 1880. Sir A. A. Dorion. C. J., Monk, Ramsay, Tessier, Cross, JJ. § 16. Faculti de Rem4r4. — Lease Trouble Thi's case is only interesting as an example of the litigation that may be got up abouttrifles. BapU.it& Duval. Q. Judgment confirming, 8 September, 1880. Sir A. A. Dorion, C. J-, Monk, Ramsay, Testier, Cross, JJ. Ramsay, J., dissenting. § 17. En justice Where a minor is authorized to sell property, the sale is not rendered null by the insertion of the stipulation that in case the inte- rest is not paid the whole price will be- come due, although such stipulation is not made a condition of sale by the order. Watts & Paquette. M. Judg- ment confirming, 22 June, 1876. Monk, Ramsay, Sanborn, Tessier, Sicotte, JJ. Sicotte, J. dis. Rep. & Rev. Leg. 252. In the proceedings of a sale by au- thority of justice, in execution of a judgment, the crimes are as nothing against the possession of the owner. Baptist & Dupr4 & al. Q. Judgment confirming, 8 February, 1884. Monk, Ramsay, Tessier, Cross, Baby, JJ. L'un des trois adjudicataires con- joints, qui est un des creanciers collo- que, peut demander la vente a la folle enchere de Timmeuble entier, sur le defaut des deux autres adjudicataires SALE 652 de payer leur part de prix. McGreevey & al. & Leduc. Q. Judgment reversing, 8 May, 1 884. Monk, Ramsay, Tessier, Cross, Baby. JJ. Monk, Ramsay. JJ. dissenting. Rep. 10 Q. L. R. 188. An adjudicaiaire who has not been able to obtain a title to the real estate adjudged to him, owing to the judg- ment of distribution not being rendered and this not by any laches on his part, may, within a year of rendering suoh judgment, obtain a writ of possession authorizmg him to put the adjudica- taire in possession ; and the Defendant, will not he maintained in his pretention that he has been in open and peaceWe and public possession of the said im- moveable for more than a year and a day, prior to the demand of possession. Burke & Langlois. Q. Judgment con- firming, 5 June, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tosier, Cross, JJ. Rep. 10 Rev. Leg. 560, 2 Leg. News 202. In judicial sales in execution of a judgment, the purchaser has no action oi garantie against the creditor seizing. His recourse against him is either that provided by article 1586 or 1587 C. C. Ruest & Thompson et al. Q. Judgment confirming, 7 October, 1 884. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. On an inscription by an interested .. creditor, a Sheriffs title may be decla- red /aija;. And this although the She- rift's title be registered, and that the immoveable has passed into the hands of a third party whose title also was registered. Carpenter & DSry. Q. Judg- ment confirming, 5 March, 1877. .Sir A. A. Dorion, C. J., Ramsay, Sanborn, Tes- sier, JJ. Sanborn, J. dis. Rep. 5 Q. !• R. 311. 8 Rev. Leg. 283. Where a creditor opposes for money on the proceeds of a sale by the Sheriff, and it appears that the Sheriff and m jvdicataire have made a transaction by which instead of the actual payment of the money they have substituted compensation between a debt due by the Sheriff who is insolvent, totheffl* judicataire and his family, the return of the Sheriff' will be declared /a«a; and 653 SALE SALE 654 afoUe ench&re be ordered. La Soclili de Construction Permanenie de Quebec & Martin. Q. Judgment reversing, 7 Sept., ] 880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, McCord, JJ. Rep. 10 Rev. Leg. 619. Lorsque par une opposition afin de distraire a une saisie d'immeubles I'op- posant ne reclame qu'une partie indi- vise des iuimeubles saisis, le creancier saisissant ne peut faire ordonner la vente de la partie qui n'est pas recla- mee par I'opposant avant que la con- testation sur I'opposition ne soit videe, ou du moins sans donner avis de sa requete a la partie saisie. Chinic et vir & The Trust and Loan Co. M. Judg- ment reversing, 31 October, 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. Rep. 3 Dec. d'A. 259. Immoveables in the possession of j third parties cannot be taken in execu- tion as being in the possession of the curator of a vacant estate claiming title to such property. A judgment cannot be executed against those who were not defendants until it has been declared common. M. Judgment confirming, 20 | September, 1882. Sir A. A. Dorion, C- i J.. Monk, Tessier, Cross, JJ. Rep. 2 Dec. d'A. 371. Against lands The provisions con- tained in art. 642 C. C^ P. (li are appli- cable only to cases wherein the second or subsequent writ of execution against the lands of a debtor is placed in the Sheriff's hands while he is still in pos- session of the writ on which the said lands have bpen seized, and while he is still in a position to proceed to the ! sale of such lands on the day fixed for | the sale. Accordingly, where an opposition has been filed to a seizure of land and the seizure has been suspended, and the Sheriff has returned the writ and prods-verbal of seizure into the Protho- natary's office, a second seizure of the same lands may validly be made for another debt, and the Sheriff is not re- quired to note such subsequent writ of execution as an opposition for payment upon the first writ. Fuller et al. & Fletcher, M. Judgment reversing, 15 Feb., 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 25 J. 93. 4 Leg. News 96, 1 Dec. d'A. 102. In certain cases, as when the same parties have another suit pending, which may alter the balance of indebt- edness, the Court may suspend execu- tion in a case decided, and the suspen- sion of the execution may be extended to the costs of the attornies. Dorion & Dorion. M. Judgment confirming, 31 October, 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Under the insolvent act, 1875 (Sect. 125) a proceeding en nullity de d^cref by assignee must be brought in the insolvent court by summary petition, and not by any suit or other proceed- ing whatever. See also art. 715 C. C. P. Miicheson et al. & The Montreal Loan & Mort- gage Company, M. Judgment confirm- ing, 20 March, 1884. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby JJ. Where effects have been sold by au- thority of justice, and the purchaser, a creditor, has left them in the hands of the orignal owner, promising to sell them to him,provided the original owner should pay to him what he had paid for them, such proihise will not cons- titute a sale unless the said sum be paid, and the purchaser may revendi- cate such effects in the hands of the original owner. And the court will not be warranted in giving the defendant the option to pay the price, unless it be pleaded or be offered by the Plaintiff. Rasconi & Duguay, M. Judgment re- forming, 26 February, 1884. Sir A. A. Dorion, C. .T., Monk, Ramsay, Tessier, Baby JJ. 4 Dec. d'A. 47. Confirmed in Supreme Court. The rescission, on the ground of fraud, of a deed transferring real estate, will not affect the rights of a third party, who in good faith has lent money on the property while in the possession of the purchaser, where the vendor, by his own act or fault, has to some extent 655 SALE SALE 656 induced the third party to make the advance. So, where the Plaintiff sold certain real estate to Defendant (who then obtained an advance from C. on the security of the property), and in the deed from Plaintiff to I>efen>lant, it was declared that the consideration was cash paid by the purchaser, where- as in fact the consideration was mining stock which turned out to be worth- less, it was held that the Plaintiff was in fault in permitting and requesting such misstatement which might to some ex- tent have induced C. to advancp money on the property; and therefore the Plaintiff was entitled to obtain the res- cission of the deed for fraud, only on condition of the reimbursing to C. the amount of his advance. Ligihall & Craig. M. Judgment confirming, 22 September, 1884. Monk, Ramsay, Tes- sier, Cross, Baby, J.J. Rep. M. L. R. I. Q. B. 275. § 18. Super non domino Where an adjudicataire has neither paid the price of adjudication, nor given security as required by law, but has obtained pos- session under a deed from the Sheriff, falsely alleging that security had been given, the Plaintiff cannot have the pro- pei'ty resold d, lafolle enchh-e of the ad- judicataire, and over the head of a pur- chaser who was actually in possession, although the said pui chaser was obliged to give the security required of the adjudicataire. Tremblai/ & Hill et al. Q. Judgment reversing, March, 1875. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. Monk and Ramsay, JJ., dis. A sale by the Sheriff of a property over the usufructuary is a sale super non domino and consequently null. Tessier & MacNider, M. Judgment confirming, June, 1874. Taschereau, Ramsay, Sanborn, Loranger, JJ. Tas- chereau, J., dis. Where a lot of land sold at Sherifl's sale was described in the minutes of seizure and in the advertisements, as having a two-story wooden house there- on erected, while in fact the house in question was erected partly on the lot sold and partly on the adjoining lot, it was proved, moreover, that the pur- chaser would not have bought if he had been aware of the error, the sale will be vacated at the suit of the purchaser on the ground of misdescription. An error in the minutes of seizure as to the contents of an immoveable bear- ing a cadastral number will not alone support a demand by the purchaser to have the sale vacated on the ground of misdescription, even where a lot only thirty feet frontage was described as of forty five feet frontage. La Com- pagnie de Fret et Credit Fonder k Baker et al. M. Judgment confirming, 16 Sept., 1 879. Reported 24 Jurist 4.i. Where an immoveable sold by the Sherifl: is described as being bounded on a projected street, which is proved to be the only means of communication from the property to the public high- way, and such street is found subse- quently to have no legal existence, and that it is clear the adjudicataire would not have purchased had he known that no such street really existed, the sale will be set aside on the petition to that effect by the adjudicataire. The adjudicataire has a right, under the circumstances, to recover from the parties collocated in the judgment of distribution of the proceeds of said sale, the amounts of their respective colloca- tions with interest. Moat et al. & Moi- san. M. Judgment confirming, 19 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Cross, J. dissenting. Reported 25 J. 218. Where by artifices such as the pass- ing of false deeds changing the tenms et aboviissans, a Sheriffs sale has been carried out so as to mislead creditors and the public, the sale will be set aside on petition of an hypothecary creditor, who would otherwise be deprived of his security by such fraudulent man- ceuvres. M. Judgment reversing/. 29 September, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. In 1830, J. M. Soulard, auteuroi the Appellant, plaintiff en garaniie, acquir- ed an immoveable by' exchange from €5t SALE SALE 658 Letourneau the Defendant en garantie. [subsequently, Soulard was trouhU'va. his enjoyment by an hypothecary ac- tion, and called in Letourneau as his garant. The debt was not paid, and the land was sold^ar dScret. Soulard became adjudicataire. Subsequently, his son, the present Appellant, was trouhli by an action for dower not purged by the dicret and he again called on Letourneau as his garant. L. pleaded that he was no longer his garant because he held his title of the Sheriff and not of him. The majority of the Court held, re- versing the judgment of the Court below, that the dicret, which did not purge the claim, did not affect the right of Soulard representing his father to claim the protection of Ms garant. Soulard & Letourneau. Judgment re- versing, 7 Sep., 1874. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Dorion, C. J., Sanborn, J., dis. Eep. 19 J. 40. Nullity de d£cret " A sale by the " Sheriff of Montreal, at his "wn office, " of land situated in the parish of I'En- " fant Jesus, a duly erected parish for " all civil purposes formed out of the '' parish of Montreal, is illegal, null and " void, and that such sale could only " be legally effected at the church door " of the parish of I'Enfant Jesus.' " Such nullity can be invoked by a " hypothecary creditor by petition, " without a writ of summons, duly " served on all the parties interested. "(Art. 715 C. of C. P.)" " Such nullity may also be invoked " by means of an opposition, filed after " the sale, and terved on all the inter- " ested parties, and containing all the " essential allegations of a petition en " nullum de dicref' Fauteux et al. & The Montreal Loan and Mortgage Co. M. Judgment reversing, 2 1 December, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Rep. 22 J. 282, 2 Leg. News 10. Confirmed 3 Sup. Court. Rep. 411. A Sheriff's sale of lands may be set aside where it appears that the whole transaction was got up for the purpose of purging the land so sold of the hypo- thec with which it was charged. Bourque & Bissonnette. M. Judgment reversing, 29 September, 1881. The sale of real estate as belonging to an insolvent and which is the pro- perty of another, will be set aside on the suit of the real owner, who retain- ed his civil possession of the property, although such owner has negleced to correct the error of the cadastre which set forth the property belonged to the aaieur of the insolvent. Shoriis & Senkerhoff et al. Q. Judgment revers- ing, 8 May, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Ramsay, J., dissenting thought the in- solvent had the appearance and was reputed to be in possession of the pro- perty, and therefore that the seizure was properly made, within the meaning of art. 632 C. C. P. (1) The judgment in the Superior Court and in appeal will be found reported, 11 R. Leg. 537. The purchaser who has paid the price, and who is in danger of being trouble, cannot call upon the suing creditor to re-imburse him. He has no recourse till be is actually di-turbed in his possession. Th^ Trust and Loan Co. of Canada & Quintal. M. Judgment reversing, 19 January. 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Reported 2 Deo. d'A. 190. Sale by Sheriff over the head of the usufructuary is a sale super non domino. Lavigne & McNider. M. Judgment con- firming, 2 June, 1874. Taschereau, Ramsay, Sanborn, Loranger, JJ. Tas- chereau, J., dis. (1) The seizure of immoveables can only be made against the judgment debtor, and he must be or be reputed to be in ^jossession of the same animo domini. So seizure can be made of immoveables declared by the donor or testator thereof, or by law, to be exempt from seizure. Constituted rents representing seignorial dues are seized aud sold with the formalities prescribed by the act 27-28 Vic, cap. 39. 659 SALE SALE 660 A person cannot oppose a seizure of real estate, though the opposition is based on posse-sion, when the Op- posant's title appears to the Court to be manifestly fraudulent and simul- ated. Mc Cor kill & Knight. M. Judg ment confirming, 22 December, 1877. Dorion, C. J., Monk, Eauisay, Tessier, Cross, JJ. Eeported 1 Leg. News 42, confirmed in the Supreme Court 3 S. C. Eep. 233. A railvyay may be seized and sold by a holder of debentures, by which, in terms of the law, the road is mortgaged and hypothecated for security of the debentures. The Corporation of the County of Drummond & The South Eastern Railway Co. M. Judgment re- versing, 20 Dec, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay. Tessier, Cross, JJ. Tessier, J., dis. Rep. 24 J. 276, 3 Leg. News 152. ] §19. Payment of Price.— Menace of eviction L'acheteur qui, sur une vente par le s-herif, a paye son prix de vente, ne peut forcer le creancier poursuivant le decret, qui a regu le prix de vente, a le rembourser sous le pretexte qu'il est expose a etre trouble, et qu'il ne peut exercer de recours contre tel creancier s'il est trouble dans sa posses?ion. The Trust and Loan Co. &, Quintal. M. Judgment rever.-ing, 19 Jan., 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 2 Deo. d'A. 190. The following condition was inserted in the eahier de charges of real estate intended to be sold by auction for the benefit of heirs : " The purchaser shall " be obliged to pay, over and above the " price of adjudication, at the time of " the execution of the deeds of sale, to " Theodore Doucet, notary, four per " centum upon the price of adjudication, " which percentage will cover the no- " tarial legal commission, the auction- " eer's commission, and all necessary " costs and expenses incurred to effect " the sale of the said lots, and will also " include the costs of the deeds of sale " — and of one copy thereof for the ven- " dors, and the costs of registration." The sale did not take place, and the property was bought in for the heirs. " a right to make one bid being re- " served to the vendors in the eahier, " des charges, the Respondent there- " fore was under no liability to pay any-. '' body the amount of the commis- '' sion, which was after all part and " parcel of the price ; no part of which " was payable under the circumstan- " ces." Doucet et Pinsonneault. M. Judgment confirming, 19 June, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay,- Tessier, Cross. JJ. Rep. 23 J. 163. § 20. Judicial of Moveables Dgplact- ment Where moveables have been sold at judicial sale, and the purchaser in good faith has allowed the effects to remain in the Defendant s possession, he, or his representatives, may oppose the seizure and sale of such efiects at the suit of another creditor. The verbal testimony of the purchaser is admissible, as against such other seizing creditor, to prove the transfer of the effects from the first purchaser to the transferee opposant. Senical & Vrawford. M. Judgment reversing, 22 November, 1881. Sir A. A. Dorion, C.J.,' Ramsay, Tessier, Cross, Baby, JJ. Eep. 5 Leg. News 256. 2 Dec. d'A. 121. § 21. By assignee — Liability of as- signee Assignee, under Insolvent Act of 1865, may be sued as such in an or- dinary action of damages where he has sold as belonging to the insolvent, pro- perty not belonging to the insolvent. Stewart Farmer. M. Judgment con- firming, 17 December, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 3 Leg. News 33. The difaut de conienance in real es- tate sold by assignee, gives to the ad- judioataire the light to demand the di- minution of price in the proportion ot the quantity missing ; and he can re- cover back the money after it is paid, if he has paid in error. Thomas & Mur- phy. Q. Judgment confirming, 6 March 1877. Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 8Rev. Leg. 231. The assignee of an insolvent estate sold the assets en bloc for the sum ot 134,000.00. The purchasers paid tlie 661 SALE SALE 662 whole amount before it was due, on an express agreement in writing by the assignee that he would pay them for any deficiency that might be found to exist in the assets sold, in the propor- tion of an estimate made in pencil upon the inventary annexed to the deed of sale. It appeared that one asset consisted of 1 50 shares of Railway and Newspaper Advertising Co. stock, of the par value of $15,000.00 on which $9,357.24 were still unpaid, and a trans- fer of this stock could be made to the purchasers only subject to the liability of paying such calls as might be made, which liability was unknown to the purchasers when they purchased the estate, and they declined to assume the responsability. Although there was no warranty sti- pulated at the time of the sale, the as- signee being unable to deliver the stock sold, was bound to refund a part of the price in the proportion that the value of the stock bore to the value of the whole assets ; — and. in the absence of evidence to the contrary, the separate valuation of the stock marked upon the inventory (which valuation had been concurred in by both parties) might be taken to be the true value of the asset not delivered. Dixon et al. & Perkins. M. Judgment reversing, 8 November, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Cross, J. dis. Eep. 25 J. 117. 1 Dec. d'A. 1. 3 Leg. News 364. A municipality which seizes and sells a land not within its juri-diction, or for taxes not due, is liable to the adjudica- taire as garant ; and the municipal cqunoil may validly transiger with the adjudicataire. Bachand & The Corpora- tion of St. TModore d Tipton, M. Judg- ment reversing, Sep., 1 874. Monk, Tas- chereau, Eamsay, Loranger, Beaudry, JJ. Monk, Beaudry JJ. dis. L'Intimee, appelee a la substitution cree par le testament de son pere, reclame par action petitoire, de I'Ap- pelant un imnieuble faisant partie des biens de la dite substitution. Ij'Appelant, dans sa defense, allegue qu'il a acquis cet immeuble a une vente judiciaire, a la poursuite d'un creancier, preferable a la substitu- tion, laquelle se trouve en conse- quence purgee par le decret. Ee- ponse de I'intimSe que oette oreance n'etait preferable a la substitution que par I'enregistrement tardif du testa- ment creant la dite substitution, et que I'Appelant ayant ete son tuteur ne pouvait se prevaloir de ce defaut. Au- cune allegation de la connaissance du testament par I'Appelant n'est faite dans la dite reponse. Jug6 : — Que I'Appelant ayant invo- que, a I'encontre de I'action petitoire, un titre bon et valable a sa face, I'inti- mee etait tenue d'en demontrer la nuj- lite et, qu'en I'absence d'allegations et de preuve que I'appelant, tuteur de I'intimee, connaissait I'existenoe de oe testament, il est bien fonde a en invo- quer I'enregistrement tardif. Moise Terrien & Lahonti. M. Judgment re- versing, 16 Dec. 1881. Monk, Ramsay, Tessier, Cross, Baby JJ. Tessier J. dis. Eep. 2 Dec. d'A 90. The conditions of a sale set forth in the cahier de charges cannot be altered to the prejudice of the adjudicataire So where the adjudicataire was to retain one-sixth of the price until the opening of a substitution, he cannot be compelled to pay the sixth before the event, or until it becomes impossible. Comte & Archambault et vir. Judg- ment reversing, -16 June, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Eep. 8 Eev. Leg. 102. § 22. By auction A property offered for sale at an up-set price, may be with- drawci if an amount equal to the up-set price is not offered within a reasonable delay, and before the property is with- drawn. Mallette & Lenoir esqu. Judg- ment confirming that of Sup. Court, 1 8 Dec. i 876. Monk, Eamsay, Sanborn, Tessier, .JJ. Chief Justice Dorion, who sat at the hearirjg took no part in the judgment, as he had been sworn admi- nistrator of the Government of the Province of Quebec in the interval. The sale of land in lots at the public auction is governed by the French law. 663 SALE Bach adjudication of a lot is a sepa- rate contract. By the majority of the Court (Monk, Eamsay & Tessier, JJ .) A single false bid on any lot sold destroys the con- sent of the purchaser of such lot, and renders the sale null and void, even without proof of fraud and damage. The presence of false bidders who bid on some of the lots offered does not annul the sale of a lot on which there was no false or by-bidding, unless the purchaser of such lot alleges and proves fraud on the part of the vendor, and damage to himself by the enhance- ment of the price above the current value. Such by-bidding is a cau^e of nullity only where the purchaser shows that he has suffered damage therefrom. That in this case if there was by-bid- ding on any of the lots sold to the De- fendant, it caused him no damage, and therefore the sale should be enforced. By Eamsay, J By-bidding where extensively practised at an auction sale is a fraudulent breach of the contract implied in a sale by auction, and there- fore annuls the adjudications, even of lots on which there was no by-bidding, unless the vendor clearly establishes that the purchaser was in no respect injured by the by-bidding at the sale generally. JeiM et al. & McNaughton. M. Judgment reformed, 22 September, 1876. Reported 20 J. 255. The Appellant agreed with Respond- ent that he should not bid at the sale of certain property on which she had a claim, and that he would pay Res- pondent the amount. Held, confirming the judgment of the Court below that this was a valid contract. Beaudetie & Mahoney. Q Judgment confirming, 6 March, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Rep. 5. Q. L. E. 165. It is not unlawful for a party to agree not to bid at the sale of his debtor's property, on condition that another creditor will pay him his debt. Beau- SALE 664 dette and Mahoney. Q. Judgment con- firming, 6 March, 1879. Reported 5 0. L. R. 165. Identity of articles sold. Burland & Roberts. M. Judgment confirming, 22 March, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. § 23 Registration — Knowledge by subsequent purchaser that property has been, already sold to another, whose deed of sale is not registered, does not invalidate the second sale. Farmer & Devlin et al. M. Judgment confirming, 1 4 December, 1877. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. A vendor of real estate before the Code, may have the sale set aside as against the hypothecary creditor of the purchaser, although the deed of sale be not enregister'ed. Hart & Abbott. Judgment confirming that of Superior Court, 4 Sep. 1 878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. § 24 Of goodwill The sale of the good-will of a pawn-broker's businesB, with an undertaking by the vendor not to act as a Pawn-broker in a certainj place, gives right to an action of damages for violation of the stipulic: tion by the vendor. Moss & Silverman. Judgment confirming that in Keview, Sep., 1874. Dorion, C. J., Monk, Tasohe- reau, Ramsay, Sanborn, JJ. A sale by Appellant, a biscuit manufacturer, of his stock-in-trade, with the good-will and all advant- ages pertaining to the name and busi- ness of the vendor, conveyed the ex- clusive right to use the name " Mao- kinnon's, as well as the device of a boar's head grasping in its paws a bone (which had been in use by Appellant prior to and at the time of the sale), on labels used and generally in all matters connected with said business, and, consequently, that Appellant had no right after such sale to use said name and device in the manufacture and sale of biscuits. MacUnnon & ThompM. M. Judgment confirming, 20Nov.l»»A Sir A. A. Dorion, C. J., Monk, Ramsay, 665 SALE SALE 666 Tessier, Cross, JJ. Rep. 26 J. 321. 5 Leg. News 396. 3 Deo. d'A. 12. A sale by a retiring partner to his co-partner of the "goodwill" of the businpss, implies an obligation on the part of the retiring partner to abstain from undue competition with ' the pur- chaser of the good will ; and where the retiring partner opened a similar shop in the immediate vicinity, and sent circulars to the customers of the late firm, and thereby sought to create the impression that he had succeeded to the firm's business, it was held that he had violated the obligations imposed by the contract of sale of good-will. Findlay & McWilliam. Judgment reversing, 17 June, 1875. Dorion, C. J., Monk, Tas chereau, Ramsay, Sanborn, JJ. Rep. 23 J. 148. 9 Rev. Leg. 642. Where two persons, sued jointly on a writing, plead together to the merits, they cannot afterwards urge that the signature to the writing is not the signature of both or of either of them, more especially in the absence of an affidavit denying the signature as re- quired by art. 145 C. C. P. The sale of the right to use an inven- tion contains a warranty that the in- vention is new and useful. The purchaser of such right is not required to have the patent set aside before he can recover the price paid by him. The use of a patent for manufactur- ing purposes is a commercial matter. B^ry et at. & Samel. Q. Judgment confirming, 6 December, 1884. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 7 Leg. News 405. 11 Q. L. R. 24. Dans I'interpretation des articles 2243 et 2258 C. C, c'est I'article 2258 qui s'appUque a I'espeoe actuelle. L'action en annulation du oontrat de vente par Ja fille a son pere et es- tuteur, sans reddition de compte, est sujette a la prescription de 16 ans de meme que I'annulation de I'inventaire a cause d'informalites ou erreurs. Art. 2258 C. C. A raison de oette vente equipollent a compte et deoharge precede de I'inven- taire a son pere et es-tuteur par la femme mineure emancipee et son mart conimuns en Mens, Taction est pres- oriptible par dix ans, art. 2256 C. C. Gr4goire & Gr6goire. M. Judgment reversing, 25 January, 1885, Monk, Ramsay, Tessier, Cross, Baby, JJ. Monk, J. dissenting. Rep. 12 Q. L. R. 32 ; M. L. R. 2. Q. B. 225. Where wine was sold by sample and accepted by the buyer without compa- rison, paid for or sold again by him, he cannot tender it back to the seller after a year and compel him to return the money, owing to its being of inferior quality. There was no error in the con- tract, and the only ground on which the contract could be set aside was that the wine had a vice redhibitoire. In such case the action complained of must have been brought with " reasona- ble diligenec, according to the nature of the defect, and the usage of the place where the sale is made." 1530 C. C. Guest & Douglas. Judgment confirm- ing, 27 may, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. A sale by authority of justice may be set aside for fraud and collusion, even where the proceedings are in appearance regular. (589 C. C. P.) But where the essentials of an auction sale are wanting the sale may be declared null. So where there is only one bid- der at an auction sale, brought there by the bailiff, and to whom all the arti- cles were sold d, vil prix, the principal article a piano being the property of the defendant, the sale of such article will be set aside, independently of any proof of fraud or collusion. (589 C. C. P.) Nordheimer et al. & Leclaire. M. Judg- ment reversing, 21 September, 1886. Monk, Ramsay, Tessier, Cross, JJ. The bailiff must sell property seized according to the advertisement, unless he be required by the plaintif to change the order of sale. Cheney & Brunei & Chauveau. M. Judgment reversing, 667 SALE SALE 27 March, 1886. Sir A. A. Dorion, C. J., Monk, Kamsay, Cross, Baby, JJ. Baby, J. diss. La question de savoir si I'acheteur a juste sujet de craindre d'etre trouble et pent demander caution en vertu de I'art. 1535 C. C, est une matiere dis- cretionnaire, dans laquelle cette Cour sera peu disposee a deranger le juge- ment de la Cour de premiere instance. Lorsque la Cour de premiere instance a condamne le vendeur a donner cau- tion, sans limiter la duree de tel cau- tionnement, la Cour d'Appelreformera le jugement a cet efi'et. Biron & Tra- han. M. Judgment confirming, 27 Jan., 1885. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Eamsay, J. dissenting. Rep. M. L. R. I. Q. B. 247. § 25. 0/ property of minor.— A sale by a minor, emancipated by marriage, to her father and ex-tutor (without any account being rendered, but after the making of an inventory of the commu- nity existing between her father and mother) of her share in the mother's succession, said sale containing a valua- tion of what was coming to her fi'om her tutor — should be considered as equivalent to an account accepted and discharge granted, and therefore, under C. C. 2258, which is applicable to such cases, the action of the pupil to annul the sale is prescribed by ten years from majority. Origoire & Or&goire. M. Judgment reversing, 25 January, 1886. Monk, Ramsay, Tessier, Cross, Baby, JJ. Monk, J., dis. Rep. M. L. R. 2 Q. B. 228. 9 Leg. News 365. La vente de meubles, faite par un commergant, est, d'apres I'art. 2260 paragraphe 5, C. C., une vente commer- ciale qui peutetreprouvee partemoins. L'achat de meubles d'un vendeur solvable et la donation d'iceux par I'acheteur a sa fille, I'epouse separee de biens du vendeur, en execution de I'obligation prise au contrat de mariage de celled, sont un achat et une dona- tion valables. Une opposition afin de distraire a une saisie, chez le defendeur, des meu- bles que son epouse a ainsi acquis, doit etre tenue avec depens. Gagnon & Carle. Q. Judgment confirming, 7 December, 1885. Sir A. A Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ Rep. 14 Rev. Leg. 164. § 26. Delivery — Appellant sold to respondents a quantity of tea to arrive. The tea arrived promptly and was placed in a warehouse to the order of respondents. It seems the tea was all in the warehouse on the 14th October. On the afternoon of the 15th, by a let- ter dated the 14th, respondents notified the Appellant that the tea had arrived too late, and that respondents would not take the tea, unless Appellant was prepared to alter the terms of payment. This Appellant immediately refused to do, and directed the warehouseman not to deliver without being paid in cash. Respondent without withdraw- ing their refusal to take the tea, in Appellant's absence demanded a sam- ple, which was refused. Respondents then wrote to Appellant to say that the transaction was at an end, Appellant having failed to carry out his part of the bargain. Appellant then sold the tea, after notifying Respondents, and sued for the loss by the second sale. Held, reversing the judgment of the Court below, that it was Respondents who failed to carry out the bargain, that they never having withdrawn their letter of the 15th, Appellant was justi- fied in directing the warehouseman not to deliver without payment in cash, and that Appellant had a right to sell the tea after notifying Respondents, on the best terms he could get. Oox & Turner et al. M. Judgment reversing, 25 September, 1885. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, JJ. § 27. Warranty.— £he vendor of a house is obliged to warrant the pur- chaser from loss owing to the drains being in a bad state, and not in accor- dance with the municipal by-laws, pro- vided such purchaser was not aware or the defect at the time of sale. Ibbotson & Ouimet. M. Judgment reversing,^! Dec, 1876. Sir A. A. Dorion, C. J-, 669 SALE SALE 670 Monk, Bamsay, Sanborn, Tessier, JJ. Rep. 21 J. 53. A vendor who sells a property during the proceedings of expropriation for a public improvement is not garant of the purchaser for the share of the cost of the improvement with which the property is charged, by an assessment roll subsequent to the date of the sale. And this holds good even where the assessment roll referred to was pre- pared under the authority of an Act of the Legislature, to take the place of the original assessment roll for the same improvement, made previous to the sale, but which has been declared null by the Courts, — there being nothing in the Act to give a retroactive effect to the new assessment roll, or to reserve to the actual owner of a property any recourse against those from whom he had derived his title after the improve- ment had been made. The vendors, by a clause of the deed of sale, relinquished and waived any right to exact interest on the unpaid balance until the net revenues of the company ,purchaser,should be sufficient to pay the annual liabilities of the com- pany for interest, insurance, etc., in connection with a certain loan, after which they would be entitled to receive interest to the extent of seven per cent, out of the surplus of revenue, according to its suflSciency ; — Meld, that the true meaning of this stipulation was that the purchaser should pay no interest on the balance due, during the exten- sion of time granted for the payment of the balance, unless the net revenue of the properly should be sufficient to pay the charges for interest, insurance, etc., not merely that the claim for in- terest should be postponed. Cross & The Windsor Co., M. Judgment revers- ing, 25 September, 1885. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Rep. M. L. R. II. Q. B. 8. 4 Bee. d'A. 280. § 28. Simulated. — It is not fraud for a father to purchase the furniture belonging to the husband of his daughter for her protection, and to leave her in possession of it in the common habitation of the family, and a purchase of this sort gives rise to no presumption of simulation. Johnston & Scott. M. Judgment confirming, 20 September, 1882. Monk, Ramsay, Tes- sier, Cross, Baby, JJ. L'Intime qui a achete une terre de son beau-frdre Scott, a la charge de payer les dettes de celui-ci, I'a fait dans le but de venir en aide a Scott, et que cette transaction n'est nuUement enta- chee de dol. Blouin & Brunelle. M. Judgment confirming, 20 Nov., 1882. Monk, Ramsay, Tessier, Cross, Baby, JJ. Rep. 3 Dec. d'A. 58. Nullity of deed Hypothec. — L'an- nulation d'une vente ou donation d'un immeuble, pour cause de fraude, n'at- teint pas I'hypotheque consentie a un tiers de bonne foi, lorsque I'emprunteur possede le dit immeuble en vertu de titres parfaits a leur face etn'indiquant aucun signe apparent de nullite. Nor- mandin et les Beligieuses Carm4lites d' Hochelaga. M. Judgment confirming 21 Dec, 1883. Sir A. A. Dorion, C. J., Ramsay. Tessier, Cross, Baby, JJ. Rep. 3 Dec. d'A. 329. § 29. By Agent One Henry Aylmer, junr., having been authorizea by power of attorney to sell a mill and several lots of land belonging to the Respond- ent, sold the whole to Appellant in payment of his own debts. The present action was instituted by Respondent to have that sale set aside. Held: — That, although Henry Ayl- mer, junr., was authorized to sell Res- pondent's property, he could not do so to pay his own debts, and that the sale to the Appellant was properly set aside. Maker h Aylmer. M. Judgment con- firming, 21 Dec, 1880. bir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 1 Dec. d'A. 106. A party employed as agent to sell property cannot accept in payment his own indebtedness, and a sale for the consideration of the release of his own liability will be set aside as fraudulent. Maker & Aylmer. M. Judgment, 21 December, 1880. Sir A. A. Dorion, (J. J., 671 SALE Monk, Eamsay, Cross, Baby, JJ. Eep. 1 Deo. d'A. 106. A principal who agrees to pay a com- mission to an agent for the sale of his manufactured goods, stipulating at the same time that the agent shall cease to manufacture the same article as he had previously done, and who secretly un- dersells his agents, cannot complain that the agent has not used due dili- gence, and therefore that he can refuse to pay him his commission on the goods the agent did sell. The Joseph Sail Manufacturing Co. & McDougall. M. Judgment confirming, June, 1874. Taschereau, Eamsay, ISanborn, Loran- ger, JJ. A general agent authorized to pur- chase goods for his principal, binds his principal for the price, although the agent may have been in funds to pay for these. Poulin & Williams. Judg- ment confirming that of Sup. Ct., 15 June, J 877. Dorion C. J., Monk, Eamsay, Sanborn, Tessier, JJ. The principal who profits by a pur- chas-e made for his account by his agent, or clerk, is liable to the vendor, ulthough at the time of the sale the vendor was ignorant of the fact that the agent was not the principal. Cdi4 & Paquet. Q. Judgment confirming, 7 September, 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Sanborn, JJ. Read & Birks, 2 L. C. J. 161. Ducasse & Beaugil, 13 L. C. E. 13. An agent purchased cattle as for himself, the owner not knowing he was transacting with an agent. The osten- sible purchaser could not pay, and the vendor learned he was the buyer for Appellant, that he had no business of his own except that of a buyer for Ap- pellant, and that Appellant got the cattle and only settled with the ostensi- ble purchaser by an account, which appeared to be that which might pass between a principle and agent, and which Appellant did not produce. Held, that the seller of the cattie had no recource against the Appellant. Q. Judgment reversing, 6 Dec, 1884. Sir A. A. Dorion, C. J., Eamsay, Tessier, SALVAGE 672 Cross, Baby, JJ. Eamsay, Baby, JJ. dissenting thought the course of busi- ness, between the ostensible purchaser and Appellant to which this transac- tion was not an exception, was that between a principal and agent, that McShane got the cattle directiyand had not proved he paid for them. The power of an agent to sell on commission may be revoked at any time, subject to the rights of the agent. Dillon et al. & Borihwick. Judgment confirming that of Superior Court, 15 June, 1880. Dorion, C. J., Monk, Eam- say, Tessier, Cross, JJ. Where the power of an agent is re- voked before delivery, a sale begun cannot be completed by the agent, un-' less there has been an acceptance by the purchaser which binds him. Lynn & Niven. M. Judgment reversing, June, 1874. Taschereau, Eamsay, Sanborn, Loranger, JJ. be re- The power of the agent may b( voked at any time by the principal. The agent who alleges a sale cannot prove it without a memorandum in writing. Lynn & Cochrane et al. Judg- ment reversing, those of the Superior Court and Court of Review, June, 1874. Taschereau, Eamsay, Sanborn, Loran- ger, JJ. § 30. Possession A purchaser by licitation cannot take posses^ion of the property purchased, but must demand'4 possession by lawful process. Eui& Millette et al. M. Judgment confirming, 21 December, 1877. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 9 Eev. Leg. 56. SALVAGE. — A steamship carrying passengers and a valuable cargo, from Liverpool to Montreal, having lost her screw, and having been six days under sail,was in the Gulf of St Lawrence near a dangerous coast, and exposed to peril' An agreement made by the captain to pay £800 sterling for towage into Gaspe Harbor (a distance of about 50 miles) should be enforced, seeing that 673 SCHOOL COMMISSIONERS SCHOOL COMMISSIONEES 674 the service might properly be treated as salvage, and as such was worth at least the sum fixed by the agreement. Stewart & Brewis M. Judgment con- firming, 20 June, 1884. Sir A. A. Do- rion, 0. J., Monk, Ramsay, Tessier, Baby, JJ. Rep. 26 J. 14. 4 Leg. News 203. 1 Dec. d'A. 319. SCHOOL COMMISSIONERS. — IZZe^aZ election A school commissioner ille- gally elected may abandon the office, and he is not obliged to wait till he is sued. Such resignation for an illegal election renders the office vacant and the Lieutenant Governor can appoint. Lalibert^ & Reed. Q. Judgment ren- dered at Montreal, 20 June, 1876, re- versing. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, Sicotte, JJ. A school commissioner is not a mu- nicipal officer within the meaning of Art. 1033 C. C. P. Sauv4 & Boileau. M. Judgment, 24 January, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, J J. Rep. 5 Leg. News 134. Election It is necessary that five electors should demand a poll, in the case of the election of a school commis- sioner. Where an election of school commis- sioner has been held under circum- stances which are unusual and which lead the Court to believe that there has been a surprise of the electors, and that they have been debarred from exercising their right to vote, the elec- tion will be annulled. Sauv6 & Boileau. M. Judgment reversing, 20 September, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, J J. Rep. 6 Leg. News 257. Fabrique School Quo Warranto A building erected by the voluntary subscription of inhabitants of the parish ofBeauport, but on the ground and with the permission of the Fabrique, and used as the school-house of the parish, and since 1847 in possession of the school-commissioners as school- house of the first arrondissement, still remains the property of the Fabrique. 22 An agreement made between the school commissioners and cur4, acting in the name, but without the express authorization of the Fabrique, who nevertheless acquiesce therein, stipul- ating that the school-house in question belongs to the Fabrique, that its occu- pation by the commissioners is worth |60, per annum, and that the com- missioners will only have the right to engage one teacher chosen by the cur^, is valid in so far as to entitle the cur^ and marguillier en charge to be school- commissioners, and that the last clause, although invalid as contrary to public order, does not annul the entire con- tract, but must be treated as unwritten. In parishes where there are no schools belonging to the Fabrique, it is permissible for the Fabrique, with the consent of the school-commissioners, to contribute f60 to the funds of the latter, and that by so doing the cur£ and church warden in office become ipso facto school-cOmmissioners. Ville- neuve & Charesi. Q. Judgment con- firming, 3 March, 1881. Sir A. A. Do- rion. C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 8 Q. L. R. 230, 1 Dec. d'A. 235. En 1872 et 1873, les Commissaires d'Bcoles de la paroisse de Laprairie ont fait construire une maison d'ecole su- perieui-e et preleve sur les contri- buables une somme de $3,000. Cette somme n'ayant pas suffi pour defrayer le cout de la batisse, les Appelants, avec I'autorisation du Surintendant de I'Education, ont impose une taxe addi- tionnelle de 30 cents par $100, se mon- tant en tout a une autre somme de $3,000. Jug^ : — Que les Commissaires n'ayant le droit de prelever qu'une somme de $3,000 pour la construction d'une ecole modele, cette seconde taxe de $3,000 etait illegale et ultrd, vires Les Com- missaires d'Ecoles du village de La- prairie & Brosseau et al. M. Judgment confirming, 24 September, 1884. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 4 Dec. d?A. 42. - An action by the Superintendant of Education does not lie under s. 22 of 6*75 SCHOOL COMMISSIONERS SCHOOL TAXES 616 40 Vict., o. 22 (Q.) against the secretary- ' treasurer of a school municipality after he has rendered his account and the account has been approved at a regular meeting of the rate payers and also by the trustees. Even supposing that the action by the Superintendant in this case could be regarded as an action instituted under sect. 36 of the above mentioned act and sect. 19 of 41 Vict., c. 6, the action would not lie until after the trustees had been put in default to bring such action, and had refused or neglected to do so. Ouimet & Normandin. M. Judg- ment confirming, 19 November, 1884. Sir A. A, Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Rep. M. L. R. I. Q. B. 107; 8 Leg. News 11. A statute (41 Vic, c. 6 Q.) subjecting the difficulties between School Com- missioners and their Secretary-Trea- surer to an arbitrary adjustment by the Suoerintendant, is retroactive and will bind a Secretary-Treasurer whose functions have ceased before the pass- ing of the statute in question. The presence of the Commissioners is not necessary at the examination of the accounts. Pineau & Rimouski. Q. Judg- ment confirming, 7 May, 1884. Monk, Ramsay, Cross, JBaby, JJ. Ramsay, J. dissenting, thinks an act of the sort is not an act of procedure, and therefore is not presumed to have a retroactive effect; and that the commissioners must be present or regularly sum- moned. The examination of the accounts of a Secretary Treasurer, in case of diffi culties between him and the Commis- sioners, at a meeting irregularly con- voked, and where only two of the Com- missioners are present, is equivalent to an examination " in presence of the commissioners in regular meeting as- sembled and of the secretary treasurer duly summoned to appear at the said examination " etc., 41 Vic, c 6, sect. 16. Les Commissaires cPEcoles de Hi- mouslci & Orondin. Q. Judgment rev- ersing, 7 May, 1884. Monk, Ramsay, Cross, Baby, JJ. Ramsay, J. dissenting. Par la loi de I'instruction publique de cette province, les recours des com- missaires d'ecole contre un Secrgtaire- Tresorier en charge, ou sorti de charge, sont definis et limites aux cas prevus par la section 36 du statut de Quebec, 40 Vict , ch. 22 et par les sections 16 et 19 du statut de Quebec, 41 Vict., eh. 6, que la dite section ] 6 de I'acte en der- nier lieu mentionne permet le recours par voie d'arbitrage devant le Surin- tendant, auquel toute juridiction est donnee en la matiere, et que les autres dispositions n'admettent Faction civil devant les tribunaux que sur I'initia- tive du surintendant qui peut la porter lui-meme, apres avoir mis les commis- saires d'ecole en demeure d'exeroer oe recours eux-memes, et, a leur defaut de le faire, apres telle mise en demeu- re ; et que les commissaires d'ecole qui n'ont pas ete mis en demeure par le surintendant, de porter une action contre un secretaire-tresorier sortant de charge sont incompetents pour se porter demandeurs dans une telle ins- tance. Commissaires d'Ecole de Ka- mouraska & Langlois. Q. Judgment confirming, 7 December, 1885. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, ■ Baby, JJ. Rep. II Q. L. R. 379, 14Bev. Leg. 145. The secretary treasurer of school commissioners being unable to cash a a. government's cheque given to him for school purposes, handed it to the chairman of the commissioners to be cashed. The money was lost by the chairman or stolen from him. Held, that the secretary treasurer was not liable for the amount, as he had taken reasonable care of the cheque and was in no way in fault. Ouimet & VenilU. Q. Judgment confirming, 4 Dec, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, Rep. 7 Q. L. R. 34, J Deo, d'A. 66. SCHOOL TAXES In a suit between rate payers and school Commissioners, the fact that the rate payers are dis- sentients and the organization of a cor- poration of dissentient school trustees may be proved by verbal testimony, where it is evident by receipts for school taxes granted by such dissen- en SEAMEN S ACT SECRETARY TREASURER 678 tient corporation in favor of such rate payers, during a series of years, and by other circumstances, that such a cor- poration has de facto existed, and claimed payment of school taxes in that capacity during many years. The School Commissioners of Boxion & Boston et al. M. Judgment confirming, 17 December, 1879. Reported 24 Jurist 122. 3 Leg. News iO. SCIRE FACIAS. — It is only under and by virtue of a writ of scire facias, that letters patent by the Crown making a concession of lands can be set aside. Pacaud & Rickaby . Q. Judg- ment confirming, 7 Sep., 1875. Rep. 1 Q. L. R. 245. SEA. — Where the master of a ship con- tends that the destruction of cargo was due to the perils of the sea he must prove it, or he will be held liable in dam- ages for the loss. Hearle & James etal. M. Judgment reversing, December, 1874. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn, JJ. SEAMEN'S ACT, 1873 (CANADA).— Le Juge des Sessions de la Paix a ju- ridiction sommaire contre ceux qui commettent I'oflfense de monter, Slant arm4s, sans permission et illegalement, sur un navire dans le port de Quebec, en vertu de I'acte de 1873, 36 Vict., chap. 129, sect. 86. Dans I'espece actuelle, le href de prohibition ayant ete refuse par un juge de la Cour Superieure, il n'y a pas lieu, par un appel a cettej Cour, de re. viser cet ordre. Le requerant n'a pas montre, par des affidavits suffisants, les circonstances qui lui donnent lieu de se plaindre de la sentence et d'aucune detention en vertu de cette|sentence, et que I'aflfida- vit en termes generaux du procureur ad litem du requerant ne suflBt pas. Clarke & Chauveau et al. Q. Judgment confirming, 8 February, 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. The Chief Justice and Ram- say, J. dis. 8 Q. L. R. 98. This report gives no fair idea of the issues involved in this appeal. The case is fully report- ed, 2 Dec. d'A. 226, and the opinions in dissent are to be found 5 Leg. News 74, 85. U R. Leg. 228. SECONDES NOCES — Under Art. 279 C. de Paris, the share of the wife in the conqueis of the community, existing under a former marriage, if there be issue of such marriage surviving, do not fall into the community under a second marriage, and consequently the testa- mentary bequest to the second or later husband of all the wife's share of the second community does not convey to the said husband any share of such conquets. Pilon & Brunei et al. M. Judgment confirming, 27 May, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. A tripartite community of property is dissolved by the death of the second wife, if she dies without leaving any mi- nor children, and the third share, of the second wife in an immoveable, pur- chased during the existence of such tripartite community, is apropre of the issue of such second marriage. That the surviving husband has no right to alienate the third share of such immoveable after the death of the se- cond wife, and the purchaser of the rights of the issue of the marriage, of age at the time of her mother's death, has a right to bring his action of par- tage of said immoveable. Francceur & Mathieu. M. Judgment reversing, 22 December, 1876. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Rep. 21 J. 288, 8 Rev. Leg. 665. SECRETARY TREASURER.— The Se- cretary Treasurer of a building Society who has left the service of the Society and handed over all his books and vou- chers to the Society is entitled to a judgment discharging his security, and to radiate the hypothec on his property given as security for his faithful admi- nistration, within a delay fixed by the Court, and in default of giving such deed the judgment to stand therefore. La Soci4U Permanente de Construction & Longtin. Judgment confirming, 22 June, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. 679 SECRETION SECURITY 680 SECRETION. — Secreting the books of an estate will not warrant an attach- ment. Dallemore & Brooke. M. Judg- ment confirming, 15 September, 1874. Dorion, C. J., Monk, Taschereau, Eam- say, Sanborn, JJ. Eep. 6 Rev. Leg. 657. The Appellant gave the Bank corn for advances, by transferring the Bill of Lading under a special receipt by which the Bank was to be paid out of the proceeds. The Appellant's firm sold the corn and appropriated the money to pay another creditor. The petitioner contended that the corn was not that of himself or of his firm — that if it was they had dealt with it as the Bank directed, and that he had personally no part in the fraud, if any, and that at most the payment was merely a preference not secreting. The capias was maintained. The corn was sold as the property of Petitioner's firm, and the proceeds were funds in their hands destined to the payment of the Bank. The payment to another was a fraudulent secreting of this money, and they are liable for it as for any other funds in their hands. Their excuse is virtually, this is not secreting, it is an offense under the larceny act. It is therefore more than a mere preference. Brown & The Canadian Bank of Com- merce. M. Judgment confirming, 27 January. 1876. Dorion, C. J., Eamsay, Sanborn, Tessier, JJ. A payment made in the ordinary course of business, although it may be in some sense a preferential payment, does not justify a capias, but a prefer- ential payment may be of such a char- acter as to amount to a secreting, and to justify a capias. Ferlund & Nield, Q. Judgment confirming, 3 September, 1877. Dorion, C. J., Monk, Bamsay, A fraudulent preference, by which assets which should be available to the creditors generally, are given to one or more is equivalent to secreting. Oalt et al. & Dussault. M. Judgment revers- ing, 1 Oct., 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Monk, Cross, JJ., dis. Rep. 4 Leg. News 321. An insolvent debtor, who without fraud, sells his property to a minor with long credit, without consulting his cre- ditors is not liable to be arrested on capias. Beaudetie & Audette. Q. Judg- ment connrming, 7 June, 1878, Dorion, Monk, Ramsay, Tessier, Cross, JJ, Monk, J., dis. Rep. 8 Rev. Leg. 581. A capias against an insolvent may be maintained for secreting his property, and this charge will be sustained by evidence to show that large sums, suffi- cient to account for the insolvency, have been made wit^i and not account- ed for. Downey & Winning, et al. M. Judgment confirming, March, 1875, Dorion, C. J., Monk, Taschereau, Eam- say, Sanborn, JJ. SECURITY BOND.— Where a party became surety for an agent engaged under certain conditions, and the agent got behind in his accounts, and the em- ployer (an insurance company) made a new arrangement with him, part of which was to cancel the amountagainst him, and to engage him on conditions : difterent from those of the former agreement, the surety is dischargedtf his liability. The ^tna Life Insurance Co. & Rooklidge, M. Judgment con- firming, 14 December, 1877. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Reported I Leg. News 29. SECURITY— C%ose jugie.—ls jiige- ment rendu sans fraude centre le debi- teur principal, est chose jugee centre la caution. La caution a qui les poursuites oontre le debiteur principal n'ont pas et6 d^- noncees, n'est, comme le garant, res- ponsable que des frais de I'exploit on- ginaire jusqu'au rapport de Taction in- clusivement, et non des frais subse- quents. Lamy & Drapeau, Q. Judgment reversing, 7 March, 1881. Sir A. A. Dorion, C. J., Monk, Bamsay, Cross, Baby, JJ. Rep. 7 Q. L. B. 383. 1 Dec d'A. 237. Variation from terms of letter of 681 SECURITY FOE APPEAL SECURITY FOR INJUNCTION 682 guarantee A letter of guarantee by an agent of a tanner, to the effect that, in consideration of the party to whom the letter is addressed endorsing a note for $2,000.00 in favor of the tanner he will retain in his hands the surplus funds, to the extent of $2,000.00 arising from the sales of sole leather, then coming in for sale and in process of manufacture, is binding on such agent personally, without special acceptance, and is also so binding notwithstanding that the note so endorsed should be tor $22,000.00 instead of $2,000.00. Beattie Workman, M. Judgment con- firming, 14 June, 1879. Sir A. A. Dorion, C. J., Monk, Kamsay, Tessier, Cross, JJ. Reported 14 Jurist 15. 2 Leg. News 212. SECURITY FOR APPEAL. — Le cau- tionnement fourni pour appeler d'un jugement de la Cour Superieure est ir- regulier, s'il n'a ete precede d'un avis a la partie, et que, dans ce cas I'appel doit etre renvoye. Dorion & Dorion. M. Judgment 27 Sep., 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 3 Dec. d'A. 387. Security in appeal from a judgment in the Insolvent Court must be put in within eight days, and where the writ has issued without the security being so put in, the appeal will be dismissed on motion. Gibson & McArthnr, M. 20 June 1877. Where there is a motion to dismiss appeal, on one of the sureties having become insolvent, delay will be granted Appellant to put in another surety. Kane & McLean. Q. Judgment 4 De- cember, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. The Appellant deposited bonds of the City of Montreal as security for an appeal by the Corporation of that City to the Privy Council. These bonds were held to be an insuflBcient security for the Corporation, and the delay was pro- longed to put in security till the 4th. In Chambers, Monk, J. 2 Nov., 1876. On the 4th the Corporation deposited $1000 as security, but it appearing that this sum was insufficient, they subse- quently deposited $800 additional. Respondent then moved to be allow- ed to execute his judgment, on the ground that the failure of appellant to put in security within the delay of six weeks first allowed, the respondent had acquired an absolute right to execute his judgment. The Mayor &c. of Mont- real & Hubert. M. Judgment, 6 March, 1877. A security bond in appeal from the Circuit Court may be amended by sup- plying the description of the real estate on which the security justify, and which had been omitted in the bond; The Montreal Cotton Co. & the Corpor- ation of the Town Salaberry of Valley- field. M. Judgment, Appellant allowed to amend bond, 16 September, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier. JJ. Rep. 24 J. 159, 2 Leg. News 238, 9 R. Leg. 551. A party obtaining leave to appeal from an interlocutory judgment, forfeits such right if the security by law re- quired be not given withm the delay fixed by the Court. Buneau & McCaf- frey, Q. Judgment reversing, 8 June, 1881. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Rep. 7 Q. L. R. 364. 1 Dec. d'A. 313, 11 R. Leg. 253. SECURITY FOR COSTS. — When se- curity for costs is given by one person the description of the real estate of the surety should be given. Dawson & Desfosses. Q. Judgment in favour the party moving, the appellant, 2 Sept. 1875. Dorion, C. J., Monk, Taschereau, Ramsay, Sanborn, JJ. Rep. 1 . Q. L. R. 121. Under sect. 42 Ins. Act 1869, security for costs is not due because of the in- solvency of the husband of Plaintiff, he being only a party to the action to authorize his wife . Bar the & Moreau & vir. Q. Judgment confirming, 5 June, 1875. Dorion, C.J., Monk, Taschereau, Ramsay, Sanborn, J J. SECURITY FOR INJUNCTION.—Where the terms of the Statute have not been 683 SEIGNIORIAL INDEMNITT SEPARATION DE CORPS, ETC. 684 substantially followed in putting in security, the injunction will be quashed on exception d la forme. Dohie & Gor- don et al. M. Judgment confirming, 14 December, 1878. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. SEDUCTION.— The mother of an illegi- timate child may sue for the expenses of seduction for aliments fol" the child, and en declaration de paterniU. Kings- borough & Pound. Q. Judgment con- firming, 5 March, 1878. Sir A. A. Do- rion, C. J., Monk, Ramsay, Tessier, Cross, J J. Rep. 4 Q. L. R. 11, 1 Leg. News 115. SEIGNIORIAL CADASTRE.— The laws abolishing the seigniorial tenure did not require the seignior to have in scribed in the cadastre all rents due to him on lands, but only those of a seigniorial character. Hart et al. & Trudel. Q. Judgment reversing, 5 Dec, 1874. Monk, Taschereau, Ramsay, San- born, Bosse, JJ. SEIGNIORIAL DUES— An immoveable acquired by the Crown for a public use becomes re united to the Crown domain, and its exchange by government for another property did not revive the seigniorial rights over it, nor gives rise to indemnity for commutation under the act arranging for the commutation dues in the fief St. Augustin. Chap. 41 C. S. L. C. Middlemiss et les Religieuses de St. Joseph. M. Judgment reversing, 22 December, 1877. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Reported 1 Leg. News 51. The advantages accruing by the commutation of the seigniorial tenure are acquired by the actual owners of the property, and cannot be claimed by their predecessors. Mongenais & Rochon. M. Judgment reversing, 18 December, 1876. Monk, Ramsay, San- born, Tessier, JJ. Reported 7 Rev. Leg. 674. SEIGNIORIAL INDEMNITY.— The de- lay prescribed by chap. 40 C. S. L. C, sect. 41, for the production of hypothec- ary oppositions, where the money is stUl in the hands of government, is no answer in the mouth of the represent- ative of the personal debtor to a claim on the fund. Hart et al. & David et al. Q. Judgment confirming, 7 June, 1878. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Reported 4 Q. L. R. 88. The failure to produce within the six months of closing the cadastre of a seigniory the opposition required by sections 40 and 41 of the Seigniorial Act, is fatal, and third parties may take advantage of it. Panet & Boisseau et al. Q. Judgment reversing, 8 September, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Routhier, JJ. Rep. 5 Q. L. R. 377, 10 Rev. Leg. 163. SEIZURE.— The seizing bailiff in a first seizure has a right to intervene in a subsequent seizure to protect the rights of the first seizure. Graham & Lepailleur. M. Judgment confirming, 14 December, 187». Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Seizure, under a writofrevendication ordering the attachment of timber in District of Arthabaska, by which logs in the District of St. Francis were attached, will be set aside so far as regards the logs so seized in the Dis- trict of St. Francis. Baby & Nadeau. Q. 8 March, 1875. Dorion, C. J., Mpnk, Taschereau, Ramsay, Sanborn, JJ. San- born, J. dis. SEPARATION DE CORPS.— Services.- "i RhSaume & Massie. M. Judgment con- firming, 27 May, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. Kamsay, J., dissenting. Rep. 5 Leg. News 298. SEPARATION DE CORPS ET DE BIENS.— Where a motion to amend the declaration in the case is of such a. nature as materially to alter the alleg- ations and conclusions, an opportunity to answer the declaration as amended should be afforded to the Defendant, and therefore a judgment granting such motion and pronouncing finally on the merits of the case at the same time will be reversed. Montrait & William. M. Judgment reversing, 22 June, lot v. 685 SEQUESTRK SERVANT 686 Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, J J. Eeported 22 J. 19. SEPARATE ESTATE. — A married woman separated as to property has the legal possession of her separate estate, though in her husband's do- micile. The City of Montreal & Greene. M. Judgment confirming, 15 May, 1879. SEQUESTRATOR. — En vertu des articles 645 et 876 du Code de Proce- dure, un juge en chambre a le pouvoir de nommer un spquestre a une saisie d'immeubles, lorsque cette saisie est retardee par quelqu'bpposition. Morgan & Lord et al. M. Judgment confirming, 28 Nov., 1882. Rep. 3 Dec. d'A. 119. A judge of the Superior Court has power to appoint a sequestrator, pen- dente lite, in an action to remove executors under a vrill from office for mal-administration. Brooke et al. & Bloomfield et al. M. Judgment, 22 Dec, 1875. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, J.J. Rep. 23 J. 140. SEQUESTRE A judge in chambers has power to nominate a sequestre. Morgan & Lord et al. M. Judgment confirming, 28 November, 1882. Sir A. A. Dorion, C. J., Ramsay, Cross, Baby, JJ. Rep. 3 Dec. d'A. 119. To effect a composition with his cre- ditors, Ja'iies Baylis gave his notes en- dorsed by McKeand, who, as security, took an assignment of the estate, in- cluding a property in the City of Mont- real. McKeand leased this property to the Appellants James Baylis & Son, and subsequently reconveyed the pro- perty to James BayHs with the right to recover the rents accrued or to accrue. Later the Respondent was appointed sequestrator to the property in a hypo- thecary action by Crossley & Sons against McKeand, and he sued Appel- lant, to recover the rent from date of lease by McK. to the date of his ap- pointment. The Court expressing strong doubts as to the propriety of the appointment of a sequestrator in such b case, and reversing the Judgment of the Court below. Meld, lo. That the transfer of rent by McKeand to Baylis did not require to be registered to enable Baylis to re- ceive the rents. 2o. That the receipts sous seing privi given by Baylis to the Appellant, were prima facie evidence that the rent had been paid at the date of the receipt, and that it was for the Respondent to establish the contrary. Baylis et al. & Stanton. M. Judgment reversing, 24 March, 1882. Mr A. A. Dorion, 0. J., Ramsay, Tessier, Cros--, Baby, J.J. Rep. 2 Dec. d'A. 350. SERVANT, Dismissal of. — Le proprie- taire d'usines (dans 1 espece des forges) peut renvoyer de son service avantl'ex- piration de son ternie d'engagement le gerant de ces usines qui s'est engage sans le consentement du proprietaire, dans une Industrie rivale de la si^nne, de nature a nuire au commerce de ce dernier. II n'est pas necessaire, dans ce cas, de faire resilier I'engagement dugerant par les tribunaux avant de le conge- dier. Macdougall & Macdougall. Q. Judgment confirming, 3 Oec, 1881. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Rep. 11. R. Leg. 203. An employee or servant, dismissed without cause, may sue for the instal- ments of his wages as they come due under the terms of his engagement ; his wages being the measure of dama- ges, unless the master shows that the employee has, or might have earned something with should be deducted from his claim. Montreal Cotton Co. & Parham. M. Judgment confirming, 13 March, 1878. Dorion, C. J., Monk, Ramsay, Tessier, Taschereau, JJ. Rep. 23 J. 146. A servant, who is discharged,without sufficient cause, before the expiration of the term for which he was engaged, if he sues for wages, can only claim the vrages which are due at the date of the institution of the action, his recourse for the unexpired period being reserv- ed. But, if he chooses to sue for da- mages for breach of contract, the length 687 SERVANT SERVITUDE 688 of the unexpired term of his engage- ment nfay be taken into consideration in estimating the damages. Beauche- min ef al. & Simon. M. judgment, 21 December, 1877. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Ramsay, J., dissenting. Reported 23. J. 143. 1 Leg. News 40. 9 Rev. Leg. 640. OJ" Corporation Dismissal Extra ■work When a medical man has been employed by the City as a Health OflS- cer, at a fixed annual salary, and atten- dance at the Civil Smallpox Hospital has been added to his ordinary duties, without stipulation by him for addi- tional salary, he cannot legally recover from the City any amount which the Council may have voted by way of remuneration for such extra services. The City could not dismiss a salaried employee, whose term of office had been renewed for another year by tacit reconduction, without paying him his salary to the end of the current term so renewed. And that in the present instance the term of office of Dr. Dugd- dale had been renewed by tacit recon- duction for another year, when the City dispensed with his further services. The City of Montreal & Dugdale k Bugdale & The City of Montreal. M. Judgment reversing, 15 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Monk, Tessier, JJ., dissenting. Reported 25. J. 149. The engagement of a clerk on a sala- ry as travelling agent, to be engaged particularly in purchasing in the Euro- pean markets, held, not to prevent his employers from using his time other wise, so long as the occupation is not derogatory to his position in society. Provost et al. & Gauthier. M. Judg- ment reversing, 14 June, 1878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Reported 1 . Leg. News 289. To justify the summary dismissal of a servant or clerk for disobedience it is necessary to establish the act of disobe- dience and to show that it was disobe- dience to one, the clerk or servant had notice was in a position of authority. McArthur et al. & Riddell. M. Judg- ment confirming, 14 June, 1 878. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. SERVICE QF ACTION — ».Peoceduee. SERVITUDE.—" A real servitude is a charge imposed on one real estate for the benefit of another belonging to a different proprietor." 499 C. C. " It arises either from the natural position of the property, or from the law, or it is establishea by the act of man." ,500 C. C. " Lands on a lower level are subject towards those on a higher level to re- ceive such waters as flow from the lat- ter naturally and without the agency of man The proprietor of the lower land cannot raise any dam to prevent this flow. The proprietor of the higher land can do nothing to aggravate- the servitude of the lower land." 501 C. C. Water The action en demolition de nouvel ceuvre lies against the owner of land on a lower level of a stream, who has built a dam so as to obstruct the flow from a higher level, and thus weaken the power which has been pre- viously used by the owner of the upper level to propel his macliinery. The fact that the work complained of has been completed does not affect the right of action for its demolition. The Consolidated Statute L. C. Cap. 51, which provides that proprietors of lands may improve water courses ad- joining them, and may erect dam, etc.,- but sha;ll pay damages, to be ascertain- ed by experts, which result from such works to others, does not apply to the case where the owner of the upper le- vel already has works in operation, and does not deprive him of the action en demolition. Frechette & La Die. Manu- facturih-e de St-Hyacinthe. M. Judg- ment confirming, 23 September, 1881, Sir A. A. Dorion, C. J., Monk, Ramsay. Tessier, Cross, JJ. Reported 5. leg. Newi 187. 1 Dec. d'A. 378. , >f,. This decision was reversed in the Privy Council in so for as regards proof of the 689 SERVITUDE SER^aTUDE 690 fact that the appellant had obstructed the flow of water. (1). The proprietors of inferior lands on a stream have an action of damages against the proprietor of the superior lands for any interference with the flow of water which aggravates the ser- vitude to which the inferior lands are subject. Cournoyer, Poulet et al., vs. Guevremont. M. Judment confirming 23 September, 1884. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. Tessier J. dissenting. Reported 7 Leg. News 308. A proprietor who, with the per- mission of the Corporation of a city, has constructed a drain under the street to connect his property with the public sewer, has the exclusive owner- ship and possession of such drain ; and the right, although not a servitude thereby establi-hed in his favour, enti- tles him to exercise the action n€ga- ioire to prevent others from using the drain, unless they contribute to the costs. Toupin & The Ontario Bank. M. Judgment reversing, 21 Sep. 1874. Dorion, C. J., Monk, Taschereau, Ram- say, Sanborn JJ. Monk, Sanborn J J., dis. Rep. 20 J. 5. Bight of way Action en complain te — Defendant pleads that he has a right of way by a deed in the following terms : " De laisser passer et repasser " les dits vendeurs sur le lopin de " terre premierement designs, tant a '• pied qu'en voiture pour oommuni- " quer au terrain restant aux dits ven- " deurs du cote nord de la riviere, un " chemin libre aussi sur le terrain du " cote nord de la dite riviere pour la " commodite des dits vendeurs pour '' aller de leur terrain a la dite riviere " abreuver en tout temps leurs ani- " maux. " ffeld by. the Superior Court : " That the Defendant and his predeces- sors have been in the enjoyment of a right of passage over the land of the plaintiff described in the declaration in this cause for a period of about forty years, that at the time mentioned in the declaration in this cause, the Plain- (1) See appendix. tiflf had undertaken to make a fence by which the defendant was excluded from the road he had so enjoyed, and that the Defendant, in what he did, merely claimed his right of passage, and by no means called in question the Plaintiff's title or possession to any part of the land described in the said decla- ration, and that the Plaintiff was in no way disturbed by the Defendant in the possession or property of the said land." Hardy & Boy. Q. Judgment confir- ming, 3 March, 1881. Sir A. A. Do- rion, C. J., Monk, Ramsay, Cross, Baby, J J . A road opened and frequented by the public as such without obstruction, during ten years becomes a public road. Myrand & Legar4. Q. Judgment confirming 3 December, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. Reported. 6 Q. L. R. 120. The following clause is sufficiently precise to form a title to , a servitude : '' Le droit de passer et repasser tant a pied qu'en voiture, en toutes saisons, par le chemin actuel du vendeur tant sur le front que sur la profondeur de la terre du dit vendeur dont I'arpent ci-dessus vendu fait partie." Bernier & Oaumond. Q. Judgment confirming, Dec. 1874. Dorion, C. J., Monk, Tas- chereau, Ramsay, Sanborn, JJ. Tasche- reau, Ramsay, JJ., dis. thought the title should have described fully the property over which this servitude was to be exercised. The following stipulation is sufficient- ly explicit and precise to establish a right of passage : " Que les dits Jacques " Poulin, pere et fils, et leurs suoces- " seurs a perpetuite, auraient le droit " de passer et repasser sur la terre du " dit Jean-Baptiste Turcotte, situee en " la dite paroisse Ste. Famille de I'Jle " d'Orleans, contenant trois arpents de " front, bornee au nord au fleuve St- " Laurent, au sud au trait-quarre, au " nord-est et au sud-ouest par les dits " Jacques Poulin, pere et fils, par un " chemin de charrette, depuis le chemin " du roi a aller a lagreve,^ar- le chemin " ordinaire, et a pied sur la terre qui 691 SERVITUDE SERVITUDE 692 " fricherait en aucun endroit que ce " fut et droit de passer par le travers " de la dite terre pour communiquer a " leur terre du sud-ouest, ainsi qu'a " celle du nordest par le chemin ordi- " naire, et qu'au nord du dit chemin du " roi, les dits Jacques Poulin, pere etfils, *' leurs hoirs et ayans cause, auraient le " droit, a perpetuite, de passer et re " passer sur et traverser la terre du dit " Jean-Baptiste Turcotte dans Tendroit " appele communement le desert, au '' sud du premier bois, par un chemin " de charrette usite et dout ils avaient " coutume de se servir, et que dans le " cas ou le dit desert serait ensemenoe, " les dits Jacques Poulin, pere et fils, " et leurs siiccesseurs a perpetuite, au- " raient le droit de passer au nord du " dit desert, au bord du premier bois, " par un sentier de pied pour y con- " duire et faire passer leurs animaux." Poulin & Turcotte. Q. Judgment con firming, 5 June, 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Sanborn, JJ. Taschereau, J., dis. Title to servitude This case turns on the terms of a deed and its inter- pretation under the evidence of use. T4fu & Gibb et al. Q. Judgment re- versing, 7 March, 1879. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Cross, J., dissenting. Reported 5 Q. L. R. 172, 10 Rev. Leg. 483. Non cedijicandi. — The following clause in a deed of sale of real property creates a servitude non cedificandi, in favor of the vendor's neighbouring pro- perty : — " II est encore entendu que toute batisse qu'erigera le dit acquereur sur le dit terrain, sera en ligne aveo celle du dit vendeur." And, that a subsequent purchaser of the property is thereby prevented from building beyond the said line. And, should he so build, the Court vyill order the demo- lition of that part of the building pro- jecting beyond said line. Hamilton & Wall. M. Judgment reversing, 14 June, 1879. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Reported 24 J. 49. Servitude claimed on alleged error in title. Fuller & Anderson et at. M. Judgment confirming, June, 1876. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Belanger, JJ. Ramsay, J., dis. All servitudes ot a seigniorial char- acter were abolished by the Seigniorial Act of 1854, whether they be principal rights or only accessory to the right of banality. If the servitude was not seigniorial, it was, at any rate, created in favour of a seigniory, and, that realty disappear- ing, the servitude ceased to exist. Mon- delet et al. & Roy. M. Judgment con- firming, 20 Nov., 1882. Monk, Ramsay, Tessier, Cross, Baby, JJ. Rep. M. L. E., 1 Q. B. 9, 7 Leg. News 352. For the purpose of extending the water-works the corporation of the City of Montreal required two pieces of land adjoining the house of the late Mr. Mofi'att and on his property. In making the said works the corporation made a deep cutting so as to endanger the rest of Mr. MoflFat s property. In order to prevent this damage the corporation i agreed to build a wall, which being in need of repair the representative of Mr. Moflfatt called on the corporation to repair. This the corporation neglected to do, although put en demeure so to do, and the Respondent had the work done, and now seeks to be paid the amount expended in reparing the wall. Held, Respondent's claim was not based on a servitude, and that the building of the wall implied the obli- gation to repair. The City of Montreal & Moffat. M. Judgment confirming, '22 March, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. As regards servitudes, the destination made by the proprietor is equivalent to a title, only when it is in writing, and the nature, the extent and the situation of the servitude specified. C. C. 551. The use and extent of a servitude are determined according to the title which constitutes it ; so, where E. acquired four houses " with the ser- " vitudes of hidden drains underneath " the yards," and it appeared that a 693 SERVITUDE SHAREHOLDER 694 drain had been constructed to conduct the sewage of the four houses in question as well as of the adjoining corner house, to the street drain, it was held that the deed did not give any right of servitude in the portion of the drain under the yard of the adjoining corner house, this not being mentioned in the deed, and not being included in the description given there- in. Fisher & Evans. M. Judgment re- versing, 25 September, 1885. Sir A. A. Dorion, C. J., Monk, Ramsav, Cross, Baby, JJ. Rep. M. L. E. I. Q." B. 415, 4 Dec. d'A. 264. Le proprietaire d'un fonds en culture en vendant deux lots detaches de ce fonds avait etabli une servitude de passage a pied et en voiture en faveur de ces lots sur une autre partie du dit fonds, avec stipulation portant que les barrieres . fussent tenues fermees. Sur I'un des lots ainsi cedes une raffinerie dhuile de oharbon, et sur I'autre un abattoir, furent subsequeiument eriges, et pour ) 'exploitation de ces deux in- dustries les proprietaires des fonds do- minants iirent passer journellement un grand nombre de bestiaux et voitures par le dit passage, de telle sorte que les barrieres etaient toujours ouvertes. Jug£: — Que dans les circonstances 11 y avait aggravation de la servitude aux termes de Part. 558 C. C, et que le proprietaire du fonds servant etait bien londe a demander des dommages pour I'abus du droit de passage, et une de- fense pour I'avenir de s'en servir pour Sexploitation des dites industries. Mc Millan & Hedge. M. Judgment confir- ming, 20 May, 1885. Sir A. A. Dorion, C. J., Ramsay, Cross, JJ., dissenting. Rep. M. L. R. I. Q. B., 376, 4 Dec. d'A. 269. Where the Plaintiff's wall is not plumb, but leans over his neighbour's land and the neighbour also builds a wall which following the inclination of Plaintiff's wall, is raised above it, and is terminated so as to make it appear plumb, an action will be dismissed Tfhich claims infilemnity from the buil der of the second wall. Quinn & Leduc. M. Judgment reversing, 27 May, 1882. Sir A. A. Dorion, C. J., Ramsay, Tes- sier, Cross, Baby, JJ. Rep. 6 Leg. News 287. SET OFF. — V. Compensation. SHARES. — A mandamus will not lie to compel a company to transfer shares of its, stock to a subscriber who has not signed an acceptance of such shares. Hart & The Montreal Manufacturing Co. Judgment confirming, 14 Dec, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. The production of a certificate of the Secretary of a joint stock company that the Defendant had subscribed five shares of the company is prima facie evidence of the fact, under the terms of the statute 37 Vic. c. 94 Sec. 5. The Stadacona Fire Insurance Co & Caba- na. M. Judgment reversing, 6 March, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Cross, JJ. Monk, Tes- sier, JJ., dissenting. Reported 2 Dec. d'A. 380. A purchaser, subsequently to incorpo- ration, of shares subscribed prior to in- corporation, and who has paid a call after his purchase, is estopped from contesting the validite of the original subscription. Macdougall et al & The Union Navigation Co. M. Judgment confirming, 16 March, 1877. Monk, San- born, Tessier, J J. Rep. 21 J. 63. SHAREHOLDER.— Where aperson has subcribed for shares in the capital stock of a company which is being or- ganized, and has assumed the position of a shareholder, and has paid a portion of the calls made from time to time on stock, he cannot set up alleged irregu- larities in the original organization of the company as a valid reason for avoiding payment of the remainder of the calls. The Windsor Hotel Co. & Lewis et al. M. Judgment reversing, 29 Sep., 1881. Sir A. A. Dorion C. J., Monk, Ramsay, Tessier, Cross, Baby JJ. Rep. 26 J. 29, 4 Leg. News 331. Those persons only who are mention- ed in the letters patent incorporating the company as shareholders and pro- 695 SHAREHOLDER SHAREHOLDER 696 moters prior to that time, if not men- tioned therein, are not liable as contri- butories. Sascony & La Compagnie de Navigation Union. M. Judgment re- versing, 18 Sep., 1878. Sir A. A. Do- rion C. J., Monk, Ramsay, Tessier, Cross, JJ. Kep. 24 J. 133. 1 Leg. News 494. An agreement between a promoter of a company and a subscriber for shares, that the latter shall pay for his stock in services, will not bind the com- pany. Even if the shares of those who sub- scribed before the respondent were re- duced, without his knowledge, after he subscribed, yet if he, after obtaining knowledge of that fact, did not imme- diately repudiate his stock, but, on the contrary, paid a first instalment there- on, and took an active part, both as so- licitor and shareholder, in promoting the affairs of the company, he will be liable to pay the calls on the stock held by him as they are made by the Directors. The National Insurance & Hatton. M. Judgment reversing, 21 .June, 1879. Dorion, C. J., Monk, Ram- say, Tessier, Cross JJ. Rep. 24 J. 26, 2 Leg. News 238. It is no answer to an action for calls, on subscribed stock of a joint-stock company to say that the Defendant was given to understand by tho=e who solicited him to become a shareholder that he would pay for his stock in sup- plies to the company. Chrisiin & The Union Navigation Co. M. Judgment confirming, 20 November, 1882. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. A bank took 150 shares of stock of the nominal value of $100 per share, on which 45 per cent, was paid up, as col- lateral security for advances. Held, the Bank was not responsible for calls on shares so held. The Railway & Newspaper Advertising Co. & The Mol- sons Bank. M. Judgment confirming, 14 June, 1879. Sir A. A. Dorion, C. J., Monk, Sicotte, Ramsay, Tessier, JJ. Rep. 2 Leg. News 207. Where a shareholder has transferred stock not fully paid to a solvent party, all the calls then due being paid, and the transfer has been acquiesced in by the company, the original stock holder cannot afterwards be called upon to make good the remaining calls. Ross et al & Baribault. Q. Judgment con- firming, 7 May, 1888. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Respondant was sued for the amount of his subscription to the stock of a company to be formed. The undertak- ing was in this form : " The undersigned hereby respeot- " ively agree to take the number of " shares of one hundred dollars each in " the capital stock of a company to be " formed, under the name of the Ma- " gog Textile & Print Company, herein " below set after our names respeotive- " ly, and to pay the amount of all calls " thereon, at the oflBce of the company " in Montreal, at such times as the " Provisional Director or the Directors " of the company when incorporated , " may direct." In the subsequent proceedings, the promoters of this company, excluded Respondent, were themselves consti- tuted the company " with all others who may become shareholders " ; and they made different arrangements of an important kind aiFecting the capital of the company without the privity or consent of Re.?pondent. Held, that the Respondent was not obliged to take the stock at the suit of the company, subsequently formed, under the above undertaking. The Magog Textile and Print Company & Dobell. Q. Judgment confirming, 7 October, 1886. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Rep. 9 Leg. News 348. The Appellant signed an undertak- ing to take stock in a company to be incorporated by Letters Patent under Q. 31 Vict., c. 25, but was not a peti- tioner for the Letters Patent, nor was his name included in the list of intending shareholders in the schedule sent to the Provincial Secretary with the peti- tion. The Appelant's name was not 697 SHEEirF sheriff's sale 698 mentioned in the Letters Patent incor- porating the company, nor did he be- come a shareholder at any time after its incorporation. Eeld. 1st. That the Appellant never became a shareholder of the company, and could not be held for calls on stock. 2nd. The Union Navigation Co. & Couillard (7 E. L. 215 &. 21 J. 71) and Bascony & the same Co. (1 Leg. News, 494 ment on reserved case 18 Dec, 1874. Dorion, C. J., Monk. Taschereau, Ram- say, Sanborn, JJ. Rep. 26 J. 129. " Trial," within the meaning of C. S. L. C, c. 77, s. 57, is not terminated until sentence is rendered, and a " question which has arisen on the trial " does not necessarily mean a question that was raised at the trial, but one that took its rise at the trial ; and therefore a point not mentioned by the defence may be reserved by the Court. Beg. v. Bain. M. Judgment, 22 June, 1877. Dorion, C. J., Monk, Eam- sav, Sanborn, Tessier, JJ. Rep. 23 J. 327. If the Plaintiff fails to appear when the cause is called for hearing he may be non-suited ; but the non-suit may be set aside, and a venire de novo may be ordered, according to English prac- tice, on payment of costs by Plaintiff. Bain, & White et al. M. Judgment re- versing 22 Nov., 1881. Sir A. A. Dowon, ' C. J. 753 TROUBLE TRUSTEES 754 TRIAL BY JURY.— A PlaintifiF having a right to a trial by jury, who has not declared by his declaration that he choses his case to be tried by a jury, may make his option after plea filed, and before completing the issue, not- withstanding the 64th rule of Practice. Mason & Gehhardt. M. Judgment re- versing, June, 1875. Dorion, C. J., Monk, Taschereau, Eamsay, Sanborn, JJ. An agreement to go into partnership with another to construct a railway is commercial, and consequently an action of damages for the breach of such con- tract may be tried by jury. McLea & McDonald. M. Judgment reversing, 3 Feb., 1876. Dorion. C. J., Monk, Eam- say, Sanborn, Tessier, JJ. The service, within four days after issue joined on amended pleadings, of a notice of motion praying acte of the mover to have a trial by jury, and the making of such motion subseqtiently, are a sufficient compliance with the requirements of art. 350 of the Code of C. P. Brown & The Imperial Fire Ins. Co. M. Judgment reversing, Dec, 1875. Dorion, C. J., Monk, Ramsay, Sanborn, JJ. Kep. -10 J. 179. TROUBLE ^The adjudicataire of real estate sold by the sheriff is trouble in his possession by an intervention set- ting up that a creditor of the former owner of the property sold is not paid and that the money has not been paid into Court. Dawson & Ogden. Q. Judg- ment reversing, 8 March, 1878. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, Cross, JJ. The production of a registrar's certi- ficate, showing that mortgages are registered against the property pur- chased, which mortgages do not appear to have been discharged, is sufficient to support a plea of (ear of trouble, under art. 1535 C. C. In such case the balance of purchase money which the buyer has yet to pay on the property is the only amount for which he can-claim security. ■ Parker & Felion. M. Judgment reversing, 18 September, 1877. Sir A. A. Dorion, G. J., Monk, Ramsay, Tessier, JJ. Rep. 21 J. 253. Danger of trouble. — ». Sale bt Sheriff. TROUBLE DE DROIT Where it was stipulated in a deed of sale that the purchasers should retain an amount to pay the Corporation of the City of Montreal a certain sum as a special assessment for an improvement, in case the proceedings in expropriation, then being contested were maintained, and the corporation abandoned said pro- ceedings, the vendor may recover the sum so retained ; and it is no answer in the mouth of the purchaser to say, that the corporation has obtained power to make a new assessment. But the power to make a new assess- ment is a trouble de droit and gives the purchaser the right to demand security. Chaboi & La Ranque JacquesCartier. M. Judgment reversing, 20 Sep., 1882. Sir A. A. Dorion, C. J., Ramsay, Tessier, Cross, Baby, JJ. TRUSTEES. — Where property was vested in four trustees, two of whom are dead, for the use of a presbyterian congregation in connection with the Church of Scotland, one of the survi- ving ti'ustees cannot sue tlie other to give possession of the property, in order that he may dispose of it by handing it over to another religious body, con- stituted out of an amalgamation of different religious bodies calling itself '• The Presbyterian Church in Canada." Morrison & MeCuaig. M. 20 Jan., 1883. Sir A. A. Dorion, C. J., Ramsay, Cross, Baby, JJ. Indictment under 32 and 33 Vict., ch. 21, section 78, which is as follows : " Whatsoever, being intrusted either " solely or jointly with any other per- " son, with any power of attorney for '' the sale or transfer of any property, " fraudulently sells or transfers, or " otherwise converts the same or any " part- thereof to his own use or benefit, " or to the use or benefit of any person ^55 TUTOR TUTOR 1b6 " other than the person by whom he " was so intrusted, is guilty of a misde- " meanor, and shall be liable to any of " the punishments which the Court " may award as hereinbefore last men- " tioned." Held : — That the Power of Attorney, mentioned in section 78, of 32 and o3 Vict., ch. 21, must be a written Power of Attorney, and oral testimony of a verbal power of Attorney will not bring the Defendant's act within the scope of that statute. Regina & Chorimand. Q. Eeserved case, conviction quashed. 8 September, 1874. Where a party gives a power author- izing another to make, and endorse pro- missory notes for all matters " arising out of transactions connected with the business of the constituent only " do not cast on a banker, receiving such notes in the ordinary course of business and in good faith, the obligation to enquire and know whether the agent had mis-used his trust and given the notes for other consideration. The Molson's Bank & Bank of Commerce. M. Judgment reversing, 2 1 Dec, 1878. Dorion, C. J., Monk, Ramsay, Cioss, Routhier, JJ. TUTELLE Compie de. — The omis- sion by a tutor to enter in the inventory to the debit of the minor, a debt due to him, operates a forfeiture of the debt. Prince & Gagnon. Q. Judgment reforming, 8 Sep. 1881. Sir A. A. Do- rion, C. J., Ramsay, Tessier, Cross, Baby, JJ. TUTOR. — A tutor appeare i per- sonally in a deed of sale and declared that he bought the immovable hy- pothecated in favour of Plaintiff, for himself, his heirs or assigns, and pro- mised personally to pay the different creditors hypothecarily, and he added. " Le dit Gleason s'oblige personnelle- ment a payer le montant susdit, mais il veut et entend que la propriete ainsi achetee appartienne a ses enfants mi- neurs auxquels il a ete nomme tuteur en justice, pour leur tenir lieu de la part de communaute de sa defunte Spouse." Held, that this was a title to the children, there being no renuncia- tion, and that an action against Gleason' is-gualiU, would lie for the amount of the hypothec. Gleason ^squalitS & Hill. Q. Judgment confirming, 3 Dec, 1881. Monk, Ramsay, Tessier, Cross,' Baby, JJ. A tutor has a right, when duly au- thorizeed, to take up the instance in and prosecute an action en portage ^ already begun by the auteurs of the minor. Cutting & Jordan. M. Judg- ment confirming, 13 February, 1875. Dorion, C. J., Monk, Taschereau, Earn- say, Belanger, JJ. Rep. 19 J. 139. A tutor suing is quality may be a witness in the suit for his pupil, v. opinion of Casault, J. 7 Q. L. R. 59. The point was not decided necessarily in appeal, the proceeding by the tutor not being established, even with his evidence ; but the Court did not ques- tion the ruling of the Superior Court on the point. Pellelier & Thompson et al. Q. Judgment confirming, 3 Dec, J881. Sir A. A. Dorion, C. J., Kamsay, Tessier, Cross, Baby, JJ. Executors are only responsible for what they actually receive, and are not jointly and severally responsible for each other's administration. Where a person, besides being exe- cutor, acts af if he were the tutor (though not really so) of a minor, to whom tine estate he administers be- longs, he cannot charge interest on monies expended by him in excess of its receipts. An executor under the circumstances above mentioned has, however, a right , to claim interest on all interest-bearing i debts paid by him in the interest ot the minor to prevent the sacrifice ot her real estate. On the contestation of the Appel- lant's account and its final adjustmeatei by the Court, the female Respondent owes the Appellant the sum of *59U.U/. Miller & Coleman. M. Judgment re- versing, 2.5 April, 1881. SirA. A.t^o- rion, C. J., Monk, Ramsay, Cross, Bab m TUTORSHIP TUTORSHIP 758 JJ. Kep. 25 J. 196. 4 Leg. News 268. 2 Dec. d'A. 33. Taking the administration of a mi- nor's estate and acting as a tutor, subjects the party so acting to account for his administration as a tutor. Miller & Coleman et al. Judgment confirming, June ] 875. Dorion , Monk, Taschereau, Eamsay, Sanborn, JJ. A tutor may be appointed in Canada to minors living in England who have property in Canada. Brooke et al. & Bloomjield, is qual. M. Judgment con- firminfr, 15 September, 1874. Dorion, C. J., Monk, Komsay, Sanborn, JJ.Eep. 5 Eev. Leg. 533. TUTORSHIP ,The non registration of a tutorship m^^t be pleaded to avail as a defence to an action by the tutor. The Court of appeals will not disturb ajudgmeut for aliments to a mother, tutrix of her minor child, against the father because the aliments are granted for a short period prior to the demand. Poissant & Barrette. M. Judgment confirming, 17 December, 1879. Sir A. A. Dorion, C. J., Monk, Eamsay, Tes- sier, Cross, J J. Eep. 3 Leg. News 12. The recommendation of the majority of the family council, touching the appointment of a tutor to a minor, should be homologated by the protho- notary, if there be no legal impediment or objection to such appointment, and other things being equal, the preference should be given to a paternal relative ; and where the prothonotary followed the advice of one maternal relative of the minor in preference to that given by twelve paternal relatives, and no cause was shown why the person re- commended by the paternal relatives should not be appointed, his decision was over ruled by the Court, and the choice of the paternal relatives adopted. ^miih et al. & Baptist. M. Judgment reversing, 22 June 1874. Eep. 23 J. 191. 9 Eev. Leg. 657. Un tuteur ne pent etre locataire des biens de son pupille (art. 290 C. C.) Le tuteur qui a ameliore I'immeuble de son pupile ne peut reclamer la va- leur des ameliorations qu'il y a faites dans une demande distincte et separee du compte qu'il lui doit et lorsqu'il a jouit de cet immeuble, qu'apres deduo tion des fruits et revenus dont il doit aussi lui rendre compte. Le droit du tiers d'enlever les ame- liorations faites par lui sur la cho^^e d'autrui ne lui donne aucun privilege sur le prix de vente de cette chose. jD' Orsonnens & Ghristin. M. Judgment reversing, 26 Septembre, 1885. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, J J. Eep. 4 Dec. d'A. 253. 14 Eev. Leg. 253. Where an account has been rendered and accepted, the tutor cannot be called upon to render another account without asking to have the first account set aside. Desgroseilliers & Riendeau et vir. M. Judgment rsversing, 22 June. 1373. Dorion, C. J., Monk, Eamsay, Sauborn, Tessier, JJ. Le tuteur dont la tutelle a ete annu- lee, et qui a rendu un compte de son administration aux nouveaux tuteurs, qui lui ont succede, et qui ont regu les pieces justificatives, et le reliquat de compte reconnuparle rendant compte, n'est pas tenu de rendre un autre compte en justice, et que les nouveaux tuteurs qui n'ont pas accepte le compte qui leur a ete rendu avec les formalites requises par la loi, n'ont d'action que pour debattre et faire reformer le compte presente, et non une action en reddition de compte. M^lhot & Dufort et vir. Q. Judgment reversing, 8 Oct., 1883. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, Baby, JJ. Eep. 3 Dec. d'A. 262. TJ ULTRA PETITA A person employed to repair railway carriages by changing them from platform trucks into pas- senger cars, cannot, being unpaid for his work, revendicate the cars so trans- formed as his property. And having alleged they were his property, and demanding to be paid the value of the cars he cannot recover the value of the work which is not alleged nor prayed for. Senical & Peters. M. Judgment reversing, 22 Sep., 1874. Monk, Taschereau, Eamsay, Sanborn, Sicotte, JJ. Rep. 7 Rev. Leg. 308. ULTRA VIRES The powers of a local government under the B. N. A. Act, are coextensive as regards the subject with those of the local legislature, so a Pio- vincial Government has power to incor porate by letters patent a company for the purposes of navigation within the li- mits of the Province. McDougall etal.& The Union Navigation Company. M. ] 6 March, 1877. Monk, Eamsay, San- born, Tessier, JJ. Rep. 21 J. 63. The Dominion Parliament had a legal right to impose on the Superior Court, and the judges thereof the duty of try- ing controverted elections of members elected to the House of Commons of Canada. Bruneau et al. vs. Massue. M. Judgment rejecting Appeal 18 De- cember, 1878. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, J J. Eep. 23 J. 60, 2 Leg. News 38, 9 Rev. Leg. 626. An act of the Province of Quebec passed in 1872 (36 Vic, c. 12, sect. 3) limited the right of appeal in certain cases that had gone to the Court of Review, and it was held that this con- trolled the right of appeal in cases of insolvency, and that it was not beyond the powers of the local legislature to regulate by general rules the appeal^; to its Courts, provided such rules di4 not contravene a positive law regulat-' ing insolvency. Studay & Angers. M. Judgment, 1874. The act of the Legislature of Quebec, 32 Yict., cap. 15, sect. 190, authorizing the Lieutenant Governor in Council to declare forfeit (for default to make repairs) the right of collecting tolls on any toll-bridge and to transfer the property therein was within the powers of the local legislature, and that the Orders in Council mentioned in this case ; forfeiting the right of exacting tolls for passing on a toll-biidge, which had been placed under the manage- ■ ment of the Municipal Councils of Cleveland & Melbourne (Appellants) ■ by Order of the Executive Council ot the former Province of Canada, and transferring the control of the pioperty to the Appellants, were not ultra vires. The Municipality of the Township of Cleveland el al. & The Municipality of the Township of Melbourne & Brompr ■ ton Gore. M. 26 Feb., 1881. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. Rep. 26 J. 1, 4 Leg. News 217, 1 Dec. d'A. 353. La clause du Statut Provincial, 42-43 , Vict., ch. 4, ordonnant la fermeturele dimanche de la maison dans laquelle il ■ se vend des liqueurs spiritueuses, est une mesure disciplinaire et de police,,i et n'est pas ultra vires de la Legislature Provinciale. Poulin & La Corporation de Quebec. Q. Judgment confirming, 7 Dec, 1881. Sir A. A. Dorion, C. J., Ram- say, Tessier, Cross, Babv, JJ. Eep. 7 Q. L. E. 337. 2 Dec d'A. 103. Ramsay, J., thought the prohibition was improvi- dently issued, independently of the special question of legislative authority«;: The tax imposed by the Act of the Legislature of the ProvincS of Quebec, m ULTRA VIRES ULTRA VIRES 762 43-44 Vict., cap. 9, sec. 9, to wit, a duty of 10 cents on each exhilDit filed before the Superior Court, etc., such duty payable in stamps, is in consideration of a service to be rendered by an officer of the Government of the Province of Quebec, and for a merely local object in the Province (viz, for the mainte- nance of the administration of justice in the Province) ; and, moreover the tax in question is of a nature similar to those collected prior to Confederation for the purpose of maintaining the ad- ministration of justice, which have al- ways been treated as local assets, and consequently the Act in question was not ultra vires. The Attorney General & Reed. M. Judgment reversing, 24 Nov., J 882. Sir A. A. Dorion, C. J., Monk, Kamsay, Tessier, Cross, JJ. Rep. 26 J. 33 1 , 5 Leg. Xews 497, 3 Dec. d'A. 33. The Chief Justice dissenting. This case was re- versed in the Privy Council. (1). A local Statute empowering a muni- cipality to make bylaws prohibiting the sale of liquor, or allowing its sale under certain conditions, is not justified by sub-section 9, section 92, B. N. A. Act of 1867, even though the munici- pality only exeroices the power to the extent of fixing a tax by way of licence, and for the purpose of revenue. A Statute of the Legislature of the Province of Quebec (39 Vic, c. 7) enact- ed (Sect. 1 ) that " every assurer, carry- ing on in this Province, any business of assurance, other than that of marine assurance exclusively, shall be bound to take out a license, before the first day of May, in each year, from the re- venue oflBcer of the district wherein is situate his principal place of business or head agency, and to remain conti- nually under license.'' " The price of such license " was to consist of three per cent, on every fire policy, and one per cent, on every other policy, except marine policies. This price was to be collected by adhesive (1) See AppE>rDix. stamps in the manner regulated by the Act. Held by the whole Court that this was not a direct tax within the mean- ing of the British North America Act. Held also, that the Statute was ultra vires of the Local Legislature, and null. Angers, Attorney General & The Queen Insurance Company. Judgment con- firming. M. 14 Dec, 1877. Sir A. A, Dorion, C. J., Monk, Ramsay, Tessier, Taschereau, JJ. Ramsay, J., was of opinion that the statute was within the powers of the Local Legislature — that a license is a permit to do — that the price of a license or the form in which such price was imposed did not alter its character of license, — that there was nothing in the enumeration of the Statute to limit the kinds of license that might be imposed by a Local Le- gislature, — that the real test of power was the object of the tax, i. e., to raise revenue for local purposes, — that the Local Legislature for such purposes could tax subject within the scope of Dominion Legislation, — and that the inconvenience of such an impost, as limiting the operations of trade, is not a consideration for our Courts, but for the Dominion Government. (1) Rep. 1 Legal News 3, 22 J. 307. A local act which disposes of the property of a Corporation created by a federal law is constitutional. Dohie dj The Board of Temporalities. M. Judg- ment confirming, 19 June, 1880. Sir A. A. Dorion, C. J., Monk, Ramsay, Tes- sier, McCord, JJ. Ramsay, J. dissenting- Rep. 3 Leg. News 250. Note. — ^This case went to the Privy Council, and was reversed. (2) The Act of Parliament 42 and 43 Vict., c 48, is invalid, not being within the powers of parliament, " it is not in the nature of an insolvency law, for it is intended to apply to all building so- (1) Confirmed in Privy Oounoil. See Av- PENDIX. (2) See Appendix. *763 tSUFRUITIER UTENSILS OF A BREWEKY '764 cieties, whether solvent or not. It is therefore essentially an act affecting civil rights, which under the provisions of the British North America Act, 1867, comes within the exclusive jurisdiction of the Local or Provincial Legislature. McClannaghan & St. Ann's Mutual Building Society. M. Judgment con- firming, but not on the principle laid down by the Court below, 4 February, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, J J. Eamsay, J., con- curred on the principle of the judg- ment except as to cost. v. Costs. Kep. 3 Leg. News 61, 24 J. 162. UNIVERSAL LEGATEE. —A. woman 'Commune en biens with her late hus- band, and l£gataire universelle en usu- fouit may bring an action against the partner of her late husband for an ac- count of the partnership, without call- ing in the nu-proprietaires. 5 Dec, 1878. Sir A. A. Dorion, C. J. Monk, Eamsay, Tessier, Cross, JJ. UNION OF CAUSES.— Lorsque les questions en litige et la preuve sont en substance les memes dans plusieurs causes, et que les Intimes sont aussi les memes, ces appels seront, sur mo tion, reunis pour n'en former qu'un seul. Garth et at. & La Banque cP Hochelaga et al. M. Motion granted, 21 September, 1886. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Eep. 14 Eev. Leg. 548. USE AND OCCUPATION. — A party occupying premises without lease or iacite reconduction is liable to pay the value of the occupation and use of the premises. Tetu & Garneau. Q. Judg- ment, 7 September, 1874. Sir A. A. Dorion, C. J., Monk, Eamsay, Sanborn, Bosse, JJ. Bosse, J., dissenting. USUFRUCTUARY MUST MAKE AN IN- VENTORY — Nelson & Harrison. M. Judgment confirming, September, 1876. Dorion, C. J., Eamsay, Sanborn, Tessier, J J • USUFRUITIER—Decret sur I'usufrui- tier est nul. Lavigne & MacNider. M. Judgment confirming, March, 1874. Taschereau, Eamsay, Sanborn, Loran- ger, JJ. Taschereau, J., dissenting. " The usufructuary cannot, at the cessation of the usufruct, claim in demnity for any improvements he has made, even when the value of the thing is augmented thereby." 462 C. C. De Bonald & Dame Marie-Louise Bar- bier et al. M. Judgment confirming, 23 January, 1884. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, Baby, JJ. The usufructuary has a right to the civil fruits of the property over which the usufruct is established, (447 C. C.) and the rent of houses is a civil fruit, but the transfer of the rents of houses as a security for a debt is not a cession of the usufruct, and the transferee can- not therefore maintain an opposition to the sale of the usufruct. Moynaugh & Smith. M. Judgment reversing, 25 September, 1886. Sir A. A. Dorion, C. J., Eamsay, Tessier, Cross, JJ. USURIOUS CONTRACT.— A simulated contract made to disguise a usurious contract is null. Martel S Besilets. Q. Judgment confirming, 7 December, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Cross, JJ. Eamsay, J., dissent- ing. UTENSILS OF A BREWERY ARE IM- MOVEABLES — The Appellant purchas- ed at a Bailili's sale, held under a writ of Jieri facias de bonis, for taxes, cer- tain moveable effects forming the plant of a brewery, (the proprietor of the brewery not objecting to the sale, and allowed the same to remain on the brewery premises on storage ; the brewery was some months afterwards sold by the Sheriff under a writ de terrii, the plant being still thereon, and ad- judged to the Appellant. The Appellant gave no notice of his claim on the goods, and filed no oppo- sition to witdraw them, but, after the sale to Eespondent, sought to revendi- cate them in his hands. Held, dismissing the action, that the effects were immoveables by destina- 765 UTENSILS OF A BREWERY UTENSILS OF A BREWERY 766 tion, and although the bailiff's sale had under the circumstances passed the property in the same to Appellant, yet as he had allowed his property to be virtually included in the sheriffs ad- vertisement of a brewery, he had only himself to blame if an innocent pur- chaser of the brewery retained all the plant which he found thereon when it was adjudged to him. Budden & Knight. Q. Judgment confirming, 8 September, 1877. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, JJ. Keported 3 Q. L. E. 273. VACANT SUCCESSION— Un curateur a une succession vacante ne represente que la succession et le defunt, et qu'il ne peut demander la nullite d'un acte fait par le defunt en fraude de ses creanciers. Cette action n'appartient qu'aux creanciers. Lamarche & Pauzi. M. Judgment reversing, 31 Oct., 1883. Sir A. A. Dorion, C. J., Monk, Ramsay, Tessier, Baby, JJ. Eep. 3 Dec. d'A. 265. VACATION Judgment in — Notwith- standing art. 469 C. P. C, the court cannot adjourn to any day between 9th July and 1 st September (the long va- cation) for the purpose of rendering judgment in casps heai-d and taken under advisement during term before such vacation. Art. 469 C. P. C. only gives the court the right to adjourn for renderingjudg- ment to a day upon which it is not pro- hibited by art. 1 C. P. C. from sitting, and that art. 1 C. P. C. in eifect abso- lutely prohibits this. The Richelieu Co. & Anderson. M. Judgment revers- ing, 22 March, 1876. Sir A. A. Dorion, C. J., Monk, Ramsay, Sanborn, Tessier, JJ. Reported 22 J. 219. 7 Rev. Leg. 625. VALUATION ROLL.— To amend a roll of valuation is not to make a new roll. So although a local municipality has an unlimited power to revise and correct a roll of valuation, it has not power to substitute an amended roll for the new roll which it is obliged by law to make. Morgan et al. &'Cote et al. M. Judgment reversing, 22 June, 1880. Sir A. A. Dorion, C. J., Monk, Eamsay, Tessier, Cross, J J. Sir A. A. Dorion, C. J. and Tessier, J., dissenting. Reported 3 Leg. News 274. Where the law requires three valua- tors and the valuation roll is made by three, only two of which were legally appointed, the roll will be set aside. Rolfeet al. & The Corporation of the Township of Stoke. M. Judgment re- versing, 3 February, 1880. Sir A. A. Dorion, Monk, Ramsay, Cross, JJ. Sep. 24 J. 213 .and 2 Leg. News 103. VENDORS PRIVILEGE— In accordance with a usage of trade at Montreal, Appellants borrowed from Brown, Mac- Minn .u. 593 Chabot V. La Banque Jacques-Car- tier 64,642,754 Chadwick v. Major 33, 341 Chaloner v. Poitras 174 Champagne v. Belangar 582,785 « V. Hotte.. 14, 34, 262, 287, 566 V. Chapdelaine 600 ■' V. Lanthier 649 Champoux v. Lapierre 102 Chapman v. Brewster 499 " V. Larin 227 Charest v. Villeneuve 674 Charette v. Robert 265, 272 Charlebbis v. Charlebois.... 416, 512, 747 Charles V. Donaldson 571 Chartre V. Price 643 Chateauneufv. North Shore Ry 591 Chauveau V. Clarke 677 " V.Evans 363,648 Cheepman v. Larin 227 Cheny v. Brunei 666 Chevalier v. CuviUier 6 Chevrefils v. Beliveau 41, 461 Chevrier v. Daly 446 Chinic V. Garneau 259 Choquelte v. Hebert 260 " v. Le Cure, &c. de Ste. Anne 124 " V.Phillips 46,580 " V. Trust & Loan C.>. 289, 629 Chouinard v. Regina 186, 188, 310 Charimand v. Regina 755 Chevrotiere v. City of Montreal. 547, 738 " v. D'Oreonnen- 758 Chretien v. Crovfley... 263, 307, 416, 448 576 Christin v. Union Navigation Co.... 695 Cimon v. Amos. 118 " v. Thompson 560,711 Cinq-Mars V. Coutier 137 " V. Corp. of Montmorency 581 City of Montreal v. Bain 479, 713 " v. Battersby 270 " V. Baylis 63, 64 " V. Bisson 27, 63, 64 " V. Chevigny de la Chevioiiere547, 738 V. Demeis.... 295,475 " v. Devlin... 30, 53, 552 " V. Drysdale 687 v.Gieen. 321,334, 450 476, 685 " V. Grenier 230,471 City of Montreal v. Guy 254,272 " V. Hogan 484, 734 " V. Hebert 485,735 " V. Lacroiz 151 " V. L'Avenir... 229,474 " V. Molson 159, 407 " • v. Moffatt 692 v. Pillow »709 " V. Riopel 481 " V.Robert 545 " V.Roy 231474 " V.Wilson 382 " V. Workman.. 473 581 " V. Wylie 257 City of Quebec v. Barras 416 « V. Kelly 213 Citizens Ins. Co. v. Bourguignon... 447 " " V. Grand Trunk E 378 '' " " V. Lafleur 366 " " " V. Lajoie 495 " " " V. RoJtland368,40449? Clarke v. Chauveau 677 " V. Exchange Bank 303 V. Ralph... 384 Claxton V. McCaffrey 155, 313 Clement v. Francis.... 34, 380. 400, 429 Close V. Dickson 336, 778, 782 Cloutier v. Blackburn 707 " V. Cinq Mars 783 " V. Courtois , 288 " V. Jacques 603 " V. Trepannier 235 Cochrane v. Lynn 672 Cohen V. Molson 408 Coundet v. Gilbert 313 Coleman V. Miller 8,756, 757 Collet V. Corpr. of Dorchester 487 Collin V. Moreau 450 Com. Mut. Building Society v.^ Saunders 325, 715 " • V. Barthe 726,728 Comms. of St John School v. Delisle. 727 Cie d'Ass. de Quebec v. St. Amand 368 " « " V. Villeneuve 722 " " Cultivateurs v. Gram- mon 79, 367 " de Chemin de fer des laurenti- desv.Corpn. of St Lin 577 " du Chemin de fer des Lauren tides V. Lord 232 " du chemin de Peage de Pointe Claire v. Leclerc 486, 770 Cie de chemin de fer de M. 0. & 0. Ry. v. Corp'n of County of Ot- tawa :. 224 241 Cie du chemin du Nord v. Pion... 61S) , 801 TABLE OF CASES 802 Cie de chemin Macadamise &c., v. Eae 145 Cie des moulins de Pierieville v. Patrick 382 Cie de Navigation Union v. Eascony 390 « " " " V. Ohristiu 391 " de Pret et credit &o v. Buker 501, ti56, 700 Cie de Villas du Cap Gibraltar v. • u Hughes 14,100,101, 393 •^tlompte V. Archambault 662 " V. Lagace 322, 451 " V. Meuiiier 427 Connolly v.British America Ass.374 475 " V. Murphy 339 " V.' Provincial Ins. Co- 283, 773, 374 " V.Walker 355 " V. Woolrych 411 Consolidated Bank v. Leslie 343, 358, 520 " '' v. Merchants Bank 343, 358,729, 774,525 " " v.Gougeon 210 '< V. Moat 520 " " V. Workman... 520 Contant v. Lamontagne 300, 497 Converse v. La Banque Nationale . 434 « V. Ross 378, 392 Cooey V. Municipality of Brome — 49 Coukev. Eraser 595 740 . " V. Bank of Montreal 593, 521 " V. Senecal 287 Cooleyv. Dominion Building Socie- ty 74, 495 fceland V. Leclerc 235 pbeilv. St Aubin 202 388 iornell v.Kenneily 634 " V. Kichari 613 Comer v.Byid 239, 457 fe[)oration of Acton v. Bachand 164, 471, 661, 747 " Arthabaska V. Patoine 489, 624 " Ascott V. Martin213, 481, 623 ' Brome v. Cooly 49 " Buckingham v. McLaren 479,48, 62 Chambly v. Secetfer 483, 733- " « V. Senecal 214, 472 " Chateau Richer v. Black- burn 49, 480 " Deschambault v. Beaucage 238 '^ Dorchester v. Collet. 487 26- Corporation of Drummond v. Corp'n of St Guillaume 50, 161, 402,425, 480 '' Drummond v. South East- ern Railway 240, 325, 592, 659 " Grantham v. Couture, 78, 481 « " V. Wurtele. 157, 466 " Hochelaga v. Lussier... 62, 157 466- " " V. Montreal Gas Co 159, 468 « v.Valois 62 '' Ireland v. Coleraine 482 " " V. Larochelle 564 " L'Ai-somption v. Baker 478 479 " L'Avenir v. Duguay... 491, 624. " " V. Patrick... 213, 472 " Levis V. Grand Trunk Ey.. 63- " " V. Hall 750 " " V. Quebec Ware- house Co 162, 491 " « v.Roberge 62, 480- ■' Montmorenci v. Simard.... 581 " Montreal v. Brovfn 54 " Nelson v. Lemieux.... 110, 294 469 475 " Ottawa v. M. 0. & 0. Ey..! 224 241 " Princeton v. Quesnel 122 Quebec V. AUeyn 701 " V.Bell.... 163,470, 750 " " V. Kelly 213 " " V. Langlnis 487 " « V. Lariviere 267,597 '• " V. Piche 209 '' V. Pouliu 93,760 " " V. Quebec Central Ry 169 •' " V. Eenaui.... 214,472 594 " Roxton V. Eastern Town- ships Bank 240, 481 " Salaberry v. Montreal Cot- ton Co 50, 51, 510, 682, 737 " Stanbridge v. Whitman.... 216 247, 277, 575, 623, 750 " St. Ann V. Reburn.... 485, 775 " St. Cesaire v. MacFarlane. 240 " St. Chrisiophe v. Beau- dette 213, 532 " St. Clotilde V. Shaughnessy 490 « St. Clotilde V. Ross. 165, 399 472 " St. Cunegonde v. Les ScBurs &o 173 " St. Gabriel West v. Holton 21 2 751 " St. Genevieve v. Price 622 803 TABLE or CASES 804 CJorp. I v.-LeTeiIIe.^, 75 V. Sevigny 32 Daigneault V. Kennedy 291 " V. Perrault „... 46, 579 Dallimore V. Brooks 108, 553, 679 Dallaire v. Gravel 130, 453, 598, 743 Daly V. Chevrier 504, 724 Dancase v. Richard 165 Danglais v. Lockhead. 216 Danjou v. Pelletier 651 " v.Thibaudeau lU, 565 Danois v.Bosp^. ....229, 698 Dansereau Exp 55,554 " V. Bellemare 522 " V. Doutre 440 " y. Letourneux 363 Baoust V. Montreal T. R. Trustees. 221 626 Darling v. Brown 127, 546 " V. Donovan , 82 " V. Eraser 364 '• V. Reeves ,243,526 " V. Templeton. ... 301, 396, 781 ;Barmody v. Cruice... .270, 412, 776', 781 ' Darveau V. Darveau 11 Dastous V. Nolan 203, 251 " V. Leclaire 114 David V. Hart...., „.. 684 Davidson v. Laurier 31 Dawson V. Defosses 682 " V. McDonald 248,612 " V. Ogden 137, 697, 753 " V. Trestler 215, 709 DeBeaufort v. Lareau 442 DeBeaujeu V. Beaudet 223 " v.-Perry 204 DeBellefeuille V. Pollock 187, 318 DeBloisv. Glass 207 ! DeBonald V. Barbier 569, 576 Deery v. Regina 189, 608, 609, 752 /Defosses V. Dawson 6^ Defoyv. Forte 17,33 , ' " V. Regina 200 ' DeGaspe v. Asselin 122 Delaware & Lackawanna & Wes- ter R'y v. Healy 353 " V. Mason 143 Delery v. Regina 461 De'ineUe v. Armstrong,465, 507, 562,573 Oelisle V. Commis&ioners of St. John School ^2* Demers v.City of Montreal 295, 475 " V.Germain 620 " V. MacBougall 7S " V. Wilson. ..„ 545 I>eMontenach V. DeMontenaeh .... 254 Denholm ¥. Merchants Bank 68 Denis v. Sauve .....26, 276, 280 Berome v. Robitaille 567 Derrick v.-R6gina. 193 I>ery v. Carpenter 302, 652, 700 " V. Foisy 59 " V. Hamel „ 665- Desaulniers V. Gerin Lajoie 4 Beseve v. Deseve 720 " V. Gareau 648 Desgroseilliers v. Riendeau 6, 758 Desilets v. Fair 340,. 364, 531 " V. Gingras 37, 226 " v.Martel„ , 764 Desjardins v. O'Keefe. 148, 459 " V. Pinsooneault.27, 280, 442 " V. Thibodeau 107. Desnoyers V. Cruice 77 Desroches V. Gauthier 220 Desrosiers v. Hutchins 247, 574 « V.Montreal & Sorel R'y. 146 " V. Rouillard 175 Devlin v. City of Montreal. ..30, 53,. 552 Deziel v. Harvey 3S Dickson v. Close J778, 782 Dignan V. Gingras 10, 5IS Dillon V. Borthwick 441 Dinning v.Wurtele 122, 333 Dionne V. Ross .....321, 571 Directors of St. Bridgets Asylum V. Arnoldi ' 24 Dixon V. Etu 440 " V. Perkins 66-1 Dobie V. Board of Management, &c. 97 " V.Gordon 683. Dolan V. Fair 276 Dominion Building Soc. v. Cooley.. 74 Dominion Oil Cloth Co. v.Martin... 276 Dompierre v. Periou 221 Donaldson v. Charles 57^1 Donihee v. Murphy 75^ Donovan v-Canadian MutualJns, Go.371 ;807 TABLE OF CASES 808 Donovan V. Darling 82 '' V. N. Y. Central Sle«?ping Car Co 21, 169, 400 « V.Smith 562 Dontee v. Beard 345 Dora is V. Boudreau 409 " V. School Com'rs of Warwick 480 'Doran v. Canada Gold Mining Co... 400 594 " v.Eoss 10 .Dorion v. Att'y General 165 " V. Benoit...l75, 243, 383, 505,531 " V. Dorion... 12, 43, 123, 131, 290, 630,654, 681,778,723,706 " V. Duftesne 627 " V. Hogan 206,227 Dorsonnens v. Christin 7&8 Dorvalv. Black 419 Dostaler v. Water Works Co. of Three Eivers 178 Doucet V. Belleville 128, 433 " V. McGieevy 298 " V. Pinsonneault 496, 660 " V. St. Amand 617 Dougall V. Eegina....l94, 196, 199, 200, 403, 496 Douglass V. Guest 666 " V. Ritchie 27 " V. Seminary of Quebec... 699 Doutneyv. Bruyere 641 •' V. Richard 47, .%6, 830 Doutre v. Dansereau 440 " V. La Banqiie Jacques-Car- tier 84,282,542 " V. Robert 775 " V.St. Charles 203 V.Walker. 365 Downey v. Winning 680 Doyon v. Bernier 148 " V. Perron 42, 177 .Drapy v. Lamy 680 " V. Lapierre 769 " V. Latreille 648 Drummond v. Baylis 142 Drummond v. The Mayor, &c. of Montreal 163, 229, 395 Dubois V. Cassidy 499 " V. Croteau 73 Dubord v. Dufresne 2.53 Dubuc V. Gray 291, 399, 560 " v.Kidston 265 Ducasse v. Beaufril 438, 671 Ducondu v. Gushing 740 Dufaux V. Eobillard 201 Dufort V. Methot 7, 708 " V.Roy 418 Dufoy V. Forte 497 Dufresne V. Bergeron 23 " V. Bulmer 719 " V. Dorion 227 " V. Dubord 253 " V. Limontagne 543 " V. Ross 142 Dugal V. Eegina 186 Dugdale v. City of Montreal 687 Duguay V. Corp. of L'Avenir.... 491, 624 '•' V. Eascony 654 Duhaine v. Ayotte 640 Dulac V. Bolduc 446 Dumas V. Baxter , 87 " V. Gagnon 124, 401 Dumont v. Aubert 269, 782 Dumontier v. Montizambert 533 Duncan v. School Comrs nf St. Ger- main 250 Dunkerly v. Lord 703 Dunn v. Wiggans 604 Dunning V. Girouard 207, 499 Dunspaugh v. Molsons Bank 8fi Duperrault V. Boyer 530 Dupras v. Trust & Loan Co 598 Dupre V. Baptist 651 Dupuy V. Gushing 649 Durocher V. Turgeon 615 Dusablon v. Eoss 392 Dussault V. Gault 114, 679 Duval V. Baptist 651 Dwane V. Burns 639 E Eastern Townships Bank v. Elliott. 261 " " " V. La Corp. E.C.E. deSt-Hyaointhe 105 Eastern Townships Bank v. McLeod 85 « « " V. Morrill. 361 Elliott V. Eastern Townships Bank 261 809 TABLE OP CASES 810 Elliott V. II V. Erichs on Etu V. Di Euar'i V. Evan? V. II V. II V. ^1 V, i V. t. V- u V. Lord 702 National Ins Co 376 V. Cuvillier 355 ckson 440 Exchange Bank 357 513 Brousseau 228 Chauveau 363 648 Fisher 6!i:i Gault 57 Hodson 409 McLea 439 Monette 238 457 " V.Paige 350 '• V.Perkins »54 357 « V. Spybold 354 Exchange Bank v. Canadian Bunk of Commerce 1^2 « " V. Clarke 303 " " V. Craig 262 " V. Euard 357 513 " V. Lord 397 " '' V. Regina 201 551 Export Lumber Co. v. Lamb "414 F Fair V. Cassels 270 " V. Desilets 340 364 " V. Dolan 265 276 Fafard v. Eoss 568 Fahpy v. Baxter 206 420 Folarnleau V. Marcotte " V. Parent 540 637 746 " V. Kennedy 640 Farmer V. Beckham 27 275 " V. Devlin 664 " V.Stewart 660 Farmer's Ins Co v. Gramman 79 Faucher v. Brown 399 563 " v. North Shore Ey. Co. 235 593 " V.Hall 620 Fauteux v. Montreal L & M Co. 699 500 657 Peek V. Beaufoy 560 Felton V. Belanger 51 Ferus v. Jefirey 498 Feore V. Regina 193 iFerland V. Nield 114 €79 iiFerguson V. Robillard :226 Filiatrault V. Buvet 575 " V. Prieur 261 Filion V. Belanger 507 Findlay v. McWilliam 617 665 " V. Dubuc 541 Fiset V. Lepine 14 60 Fishv. Mills 377 Fisher V. Evans 693 Fisk V. Stevens 34 251 •Flanaghan v. Sylvain 80 (Flanders v. Adam 599 Fletchor v. Bickford 440 " V. Fuller 290 568 630 Fletcher v. Fire Ins Co of Stans- tead 395 586 403 Fletcher V. Mathewson 287 Fitzpatrick v. Kershaw 331 527 Foisy V. Dery 59 Foley V. Cressey 285 " V.Cross 313 730 " V.Stuart 8 Fonderie de Joliette v. Ass. Cie de Stadacona 371 Fontaine v. Rooney 338 Foote V. Ontario Car Co 149 Forest v. Berenstein 701 Forneret v. Lavallee 543 Forte v.Defoy 17 33 497 Fortier V. Rpgina 534 " ' V. Cote 582 Foster v. Couture 564 " V. Meigs 141 Fournier v. Les Comrs. d'ecole de Portneuf 10 Fouinier v. Morin 280 " v. Theberge 627 " v. Union Bank 35 Francis v. Clement 34 380 Francceur v. Mathieu 129 452 678 Franklin Exp 187 31'9 Eraser V. Darling 364 " V.Cook 595 740 " V. Gagnon 88 " V.Jones 411 " V. Pouliot 241 Frechette v. Cie de Man. de St-Hya- cinthe 245 French V. Marks 206 " v.McGee 292 811 TABLE OF OASES 812 Frigon v. Beausoleil 354 631 " V. Parent 177 Frizzel v. McKenzie 77 Frost V. McKeand 3(>3 Frothingham v. Law 144 306 " V. Mayor of Montreal 50 Fuller V. Ames 267 " V.Anderson 69 " V. Fletcher 290 668 630 " Parker 281 Fulton V. McDonnell 640 " V. McNamee 276 C3- Gagne v. Duquette 426 " V. Laberge 260 « V. McGreevy 174, 566 Gagnon v.Oarignan 728 " V. Carle 608 " V. Dumas 124, 401 " V. Fraser 88,207 " V. Lapierre....ll7, 208, 298, 432 " V. Loranger 248 V. Prince 755 Gailloux V. Bureau 629 Gait V. Evans 57 Gardener v. Bell 5 Gareau V. Deseve 570 " V. Gareau 306 " V.Vincent 429 Garneau v. Chinic 446 " Tetu , 251,606,763 Garon V. Tremblay 509 Garth v. Hochelaga Bauk 763 Gaudry v. McDonnell 641 Gault V. Bertrand 399 " V. Dussault 114 " v..Evans 57 « V. Robertson 106, 119 Gaumond v. Bernier 690 Gauthier v. Belanger 614 " V. Desroohes 220 V. Prevost 687 V. Roy 9, 515 Gauvreau ex parte 317 " v. Michon. 275 Gebhardt v. Mason 404 Gelinas v. Marchand 104 Gendron v. Maodougall 156 Genereux v. Spriugle 583 Genest v. Lessard 86, 176 Gerard V. Lepage 224 Geriken v. Grannis 319 " Pinsonneault 302, 408 Gerin Lajoie v. Desaulniei's 4 Germain v.Demers 620 Gervais v. Guy 572 Gibb V. Tetu 691 " V. Lapointe..., 291,344 Gibson v. McArthur 36, 3fil " V. Eegina 197, 535 Gilbert v. Coindet 313 " V. Lionais Ii30 •' V. St. Patrick's Hall Asso- ciation 99 Oilman V. Campbell 63S Gilmor v. Auge 518 Gingras v. Desilets 226' V. Dignan 10,516 '^ V. Syraes 149 Giraldi v. Banque Jaoques-Carfeier. . . 248 Girard v. Belanger 550,712 " V. Lepage 211, 224 " V.Richard 5* Girouard v. Dinning .207,499 " V. Trudel 129,452 Giroux V. Grenier 89, 176 ' V. Noruiandin 596 Glass V. Deblois 207 " V. Regina 186,195 Gleason v. Blais 88 " V.Hill 756 Godbout V. Grand Trunk Ry 52 Goldring v. Hochelaga Bank 54, 109 Gordon v. Brown 774 •' v. Dobie 683 " V. Scroggy 572 " V. Bowen 312, 510 Gossett V. Robin 3 " V. Stoddart 702 " V. Contant 215 Gournote exparte 187, 31o Governor & Co. of Adventurers v. Decoteau 209 Graftis v. Sleeper 44, 350 Graham v. Lepailleur ^'^^'tir. '^ V. Villeneuve '1°' 813 TAALE OF CASES 814 Grammon v. Fanner's Ins. Co... .79, 367 Grandchamp v. Payton 644 Grand Trunk Ky, v. Belanger 237 " V.Brewster 647 " V. Citizens Ins. Co. 378 " V. Corpn. of L6vis 63 " V. " ofTinwick,590 " v.Godbout, 52,405, 590 " V. Landry 222 " V. McDonald 710 V. Ravary 709 " V. Eutherford 120, 590 " V.Shaw 121, 591 Grange v. McLennan 244, 506, 644 Grannis v. Geriken 319 Grant v.Beaudrj, 20, 210 510, 585 " T. La Societe Perm, de Cons- " truction 104, 642 Gravel v, Dallaire 130, 453 " V. Martin 285 Gray V. Dubuc 291, 399, 560 " V. Mayor of Quebec 220 Gray's Creek Dairy Co. v. Mullin... 23 Greenv. City of Montreal 321 " V. Standbridge 745 Gregoire v. Gregoire 666 Grenier v. City of Montreal 164, 230 " V. Giroux 89. 176 " V. Mayor &c. of Montreal 163, 213 " V. Morin 85 " V. Pothier ; 77 Griffin V. McCulloch 23 " V. Molson 172 Grondin v. Guimont 64 « v. Kodrigue 175, 243 Grothe V Langevin 338 Guay V. Bellay 24,175 " V. Mercier 215 " V. Regina 28, 186 Guertin V. Paquette 321 Guest V. Douglass 666 Guevremont v. Tunstall 27, 275 Gugy V. Amyot 29 Guilbault v. Vadenais 386, 564 Guilmoyv. Methot 217 " V. Grondin 64 Gurney V. Nordheimer 142 Guyv. City of Montreal 254, 272 " v. Gervais 572 " V.Guy 719 h: Hagen v. Craig 250 Hagens V. Eamsay 110 Haggerty V. Morris 14, 33 Halcrow v. Lemesurier 704 " V. Allan 237 ii -yr Arlftss 5T1 Hall V. Atkinson.. ".'.'.'.'.'.'.'.'.'.'.'89,'246, 575 " V. Corporation of Levis 750 " v.Faucber 620 '' V. Gilmour 562 " V.Jones 155 " V.King 47 " V. Northern Ass. Co 46 " V.Price 423, 565 " v.Turcotte 46., 579 " V. Union Bank of L. C 573 Hamel v. Dery 665 " V. Marchildon 1 54, 3 14, 578 " V.Lepage 131 " V. Panet 57, 301 Hamilton v. Beauohene 92, 257 Hamilton v- Wall 691 Hamilton Powder Co. v. Lambe... 415 Hampson v. Thompson 397 Hanlan v. Stanley 705 Hardy v. Hoy ; 690 Harrington V. Corse 781 Harris v. Moore 218 Harrisson v. Les Dames du S. C... 246 « V.Nelson -246,763 " V. Abbott 601 Hart V. Beauchemin 546 " V. Beard 219 " V. Boudreau 267, 279, 596 " V. Brow 704 " V, David 684 " V. Hart 7 " V. Joyce .463, 752 " V. Lasalle 28 " V. Marineau 287, 518 " V. Montreal Manuf. Co. 168, 390 " V. Northern Ass. Co. 580 815 TABLE OF CASES 816 Hart V. PinEonnault-. " V. Rascony " V. Then'eii " V.' Trude! 105,411, Harvey v. Deziel " V. La Cie Ass. d'Hochplaga " V. Shaiighnessy Hatton V. M. R. & B. Railway " V. National Insurance Co... " V. Spnecal Htiiighey v. C'^tp Hayden v. Ward 264, Hpaley exp 317, " V. Deraware&Lackwanna& Western Ry Hearn V. Malnniy Hearle v. James " V. Rhind Hebert v. Choqnette Hedge v. McMillan Henderson v. TrembUy " V. Bank of Toronto " V. HcShanp Henderson Lumber Co v. Ward 23 Heneault v. Pare Henry v. Ireland ■. He,nshaw v. Lynch 350, " V. Stevenson Herald Printing Co u. Workman... Heyneman v. Smith 113, Hill V. Gleason " V. Tremblay " V. Ware Hincks v. Regina 71, Hochelaga Bank v. Can. Guarantee Co Hochelaga Bank v. GariL '' " V. Goldring " " V. Robertson Hodson V. Evans 422 508 431 683 36 378 102 169 391 88 426 276 397 353 462 534 773 256 693 631 338 703 249 577 423 527 437 258 341 756 655 43 181 361 763 54 71 409 Hogan V. City of Montreal 484, 734 " V. Dorion 206, 227 " V. Mann gi Hogle V. Lambkin 724 Holden v. .Mann 207 Holland v. Thuiber 434 Holmes v. Carter 17 388 " V. Mutual Fire Ins. Co. of Stanstead 369 Holton V. Anderson 29 " V.Callahan 750 « V. Corjjn. of St Gabriel West 212, 751 Home V. fire Ins. Co. Stanton 56 Hood V. Bank of Toronto.. .16, 141, 551 " V. Western Ass. Co 376 Hotte V. Champagne... 34, 202,287, 566 " V. Currie 540 Houlev. Shelland 607 Hubert v. Barthe 437 " V. Mayor of Montreal. ..485, 578 " V. McLennan 584 Hudon V. Girouard 711 " V. Marceau 454, 634 » V. Painchaud 71,628 «■ V. PouHp 506, 632 " V. Rivard 739 " Cotton Co. V. Can. Shipping Co 448 Huilson V. Burland 522 Hughes V. La de de Villas du Cap 'Gibraltar 14, 100 Hurtubise v. Bourret 110,720 Husv.Millet 541 « v. Baile 119, 243 Huston V. Pacaud 638 Hutchins v. De-rosiers 247, 574 " V.Perkins '352 Hyneman V. Smith 113, 341 Ibbatson v. Ouimet, 160, 668, 774 | Ireland v. Henry, Irvine v. Tousignant 262 423- 817 TABLE OF CASES 818 Jacques v. Cloutier 603 Jaquay v. Hagar 270 Jameson v. Steele 217, 302- Jeannotte V. Eassette 38 Jeflfry v. Ferns 498 " V. Lamb 461 " V. Lewis '. 83 Jette v. McNaughton 663 " V.Jordan 13, 566 Jobin V. Barbeau 46, 580 Johnson v. McGreevy 267, 596 " V.Scott 307, 670 Jolicceur v. Moisan 216,417 Joly V. Macdonald 53, 333,. 553 Jones v.. Fraser 411' " V.Hall 155 " V. Mayor of Iberville, 160, 470, 786 " V. Montreal Cotton Co 165 " V. Powell., " V. Regina 194 " V. Temple 76 Jordan v. Cutting 178, 273, 756 " V. Jette 13, 287 Joseph V. Kinghan 610 " V. Phillips 382,436 Jubinville v. Bank British North ■ America 559 Joyce V. Hart.„ 206, 463,. 752 k: Kane V. Brecon „. 314 " V. McLean 43, 681 " V. Racine.. .155, 348, 528, 569, 739 " V.Wright 142, 517 Kellond V. Reed 18, 607 Kelly V. City of Quebec 213 Kennedy v. Cornell 436 " V. Daigneault 291 " V. Falardeau 640 " V.Latham 275 Kent V. Martin „ 464 Kerr v. Brown 311,449 Kerry v. Le& Soeurs de la Providence, 746 Kershaw v. Kjrkpatrick 128, 331 Kidston v. Dubuc 265 Kieffer v. White 289,650' Kilgour V. Logan 50 King V.Hall ... 47 Kingsborough v. Pownd, 23, 297, 428, 523, 683 Kirby v. Ross 35 Kirkpatrick v. Kershaw, 128, 331, 527 Kneen v. Boon 271,.597 Knight V. Banque Nationale, 53, 552 " V. Budden 465, 766 " V. McCorkill 659 " V. Patterson 7m '• V.Ross 519 La Banque Jacques Cartier v. Beau- soleU 342, 344, 352, 530 La Banque Jacques Cartier v. Cha- bot 64 La Banque Jacques Cartier v. Doutre 84 La Banque Nationale v. Kiiigbt 53, 552 " " V. La Soe. de Construction 78 La Banque du Peuplev. Laporte... 602 " Ville Marie v. Pri- meau 84 819 TABLE OP CASES 820 L'Abbe v. Beauchesne 42 Labelle v- Les Clercs de St-Viateur 215 " V. Shepperd 462, 605 Laberge v. Rodier 606 Labonte v. Lemien 253, 662 " v.Terrien 718 Lacerte V. Bourassa 538 Lachaine v. Prevost 598 Lacroix v. Bulmer 312,775 " V. City of Montreal 151 " V. La Soc. Perm, de Con. 628 ■" V. Muldoon 331, 567 La Corp. E. C. E. de Sc-Hyacinthe V. East Town. Bk 105 Ladouceur v. Morasse 72 {Laflamme v. Leoompte 90 Lafleur V. Citizens Ins. Co 366 Lafond v. Ouimet 13 ■" V. Picotte 557 Laframboise V. Veinard 293 Lafreniere v. Eichelieu & Ont. Na- vigation Co 218, 705, 498 Xajoie V. Barthe 136 « V. Citizens Ins. Co 368, 495 '' V. Desaulniers 4 " v.MuUin 116 '' V. Robertson 773 Lalancette v. Boisclair 19, 228, 612 " V. Reed 673 Laliberte V. Regina 186 " V. Alarie 640 Lalonde v. Belanger 212, 541 " V. Drolet 648 " V. Lynch 249,324 " V. Major 432, 5-^6 " V. Prevost 507 Lamarohe v. L'Heureux 12 " V. Pauz6 16,202,767 Lambe v. Brewster 8, 515, 567, 573 " V. Hamilton Powder Co 415 542 " V.Jeffrey 461 •" V. North British Fire & Life Ins. Co 414, 733 Lambe v. Sundry Banks 414 " V. Sundry Companies 414 Lambert v. Corp'n of Three Rivers. 221 473, 714,625, 594, 544 ■" V. Seott 524 Lambkin v. South Eastern Ey Co- 55 396, 405, 554 v. Hogle 721 Lamere v. Archambault 371 Lament V. Ronayne 26, 635 Lamontagne v. Contant.... 300, 497 " V. Dufresne 545 " V.Webster 498,731 Lamoureux v. McCaffrey 517 Lamy v. Drapeau 680 Lanaud v. Molson's Bank 363, 772 Lanctot V. Poissant 549 Landreville v. St. Patrick's Bene- volent Society 36 Landry V. Grand Trunk Ey 222 Lang V. Board of Temporalities, &c. 333 Langevin v. Grothe , 338 ■' V. Comr's d'ecole, etc 676 Langlois v. Corp'n of Quebec 487 « V. Barbin... .247, 268, 612, 614 " V. Bourke 25, 652, 783 " V. Langlois 322,451 *' V. Normand 478 " V.Ross 239,458 V. Valin 566 Lanouette v. Vielleux 706 Lanthier v. Champagne 769 Laperriere v. Drolet 769 Lapierre v. Champoux 102 " V. Gagnon,. . . 1 17, 208, 298, 432 « V. Laviolette 259 V. London & Lancashire Ins. Co 377 « V. L'Union St. Joseph 168 " V. Rouillard 152 Lapointe v. Gibb 291,344 " V. La Societe de Cons- truction 324,738 Laporte v. La Banque du Peuple... 602 718 Lareau v. de Beaufort 442 " V. Central Vermont Ry 232, 593 " V. Poirier i " V. La Societe Per. de Cons- truction Jacques-Cartier. 101 Larendeau v. Malbceuf 293 Larin v. Chapman 22^ Lariviere v. Corp'n of Quebec... 597, 267 Laroche V. Matte 614 Larochelle v. Barbeau 364 " v. Corp'n of Ireland 564 Larocque v. Raymond ''^ " V. Willett - 207 Larue v. Latreille '^^1 " V. Loranger ™ " V. Molson's Bank 634 " V Moreau 281 Lasalle V. Hart 28,615 " V. Bergeron |21 " V. Proulx '^^ La Societ6 de Construction v. La Banque Nationale '° La Societe de Construction v. Cou- 256, 6ii smeau., 821 TABLE OF OASES 822 La Sooiete de Construction v. Grant 102, 622 La Societe de Construction v. La- pointe 324 La Societe de Construction v. Les Eoclesiastiques du Seminaire. . . 604 La Societe de Construction Jacques Cartier V. Lareau 101 " V. Longtin, 328 " V. Martin 302 " V. Robinson 242 Latham v. Kennedy 275 Latreillev. Drolet 648 " V. Prevost 301 " V. Larue 721 Latulippe v. Bernard 274 Landon V. Cournoy 228 Laurent V. Blais 697 " V. Mercier 582 Laurentian Railway v. Legge, 128, 589 Laurierv. Davidson 31 Lavallee et Forneret 543 Lavenir V. City of Montreal 228 Lavigne v. McNider, 658, 719, 763 " v.Villars 639 Laviolette v. Lapierre 259 " V. Ryan 208 Lavoie V. St. Laurent 288 Law V. Frothingham 144, 306 Lebeau v. Baker 57 " V. Grothe„ 339 Lebel V. Blagdon 616 Leblanc v. Pellerin 47 Leclaire V. Dastous 114 " V. Nordheimer 666 Leclerc v. Bigier 708 " V. Copeland 235 " V. CiedePeage 486 '' V. Le chemin de fer du N., 770 « V. Cote 36,783 : Lecompte V. Laflamme 90 V. McCarthy 126,711 V. McGreevy 652 V. Quinn 463,693,771 " V. Tourigny 124 V. Western Ass. Co., 372, 373 Lefebvre v. Fulton 339 Lefrangois v. Russell 780 Legace v. Compte 322, 451 L6garev. Myrand 547, 690 " V. Queen's Insurance Co.... 369 Legault V. Legault 304 Legge & Laurentian Ry Co. 128, 589, 737 Lemelin v. Foitras 227 Lemesurier v. Halcrow 704 Lemesurier v. RichaidsMi „...^. 639 Lemieu v. Labonte 253 Lemieux V. Bourassa 349, 529 " V. Corpn. of Nelson, 160, " 294 460 " V. Cossitt U5 •' V. .Ktna Ins. Co 376 " V. Quebec Bank 340 " V. Regina Lemoine v. Lionais 178 Lenoir v. Mallette 662 Leonard V. St. Armand 146 •' V.Levy 216, 321 V. Banville 323 Lepage V. Gerard 224 " V. Hamel 131 " V. Piton 783 -' V.Roy 388 Lepailleur V. Graham 313 Lepine v. Fiset 14, 60^ " V. Permanent Build. So. 409, 417 Leroux v. Merchants Ins. Co 393. " v. Leroux 254 Les Comrs. d'Ecole de Portneuf v. Fournier 10' Les Comrs. d'Ecole d'Hochelaga v. Valois 56 Les Cures &c., v. Beaudry 227 " de Beauharn. V. Robillard 11 " HeSt. Ann V. Choquet... 12? Les Ecclesiastiques du Seminaire v. La Societe de Construction Jacques Cartier 604 La Societe de Construction Jacques Cartier v. Reford 249 Les clercs de St. Viateur v. Labelle 215 Les Religieuses &c., v. McCord.... 601 Les Soeurs de la Congregation N.- Dame v. La Corp. de St. Cune- gonde 173 Les Scaurs de Charite, &c., v. Yuile 216 Les Syndics, etc. v. Allard 525 Les Ursulines de Quebec v. North Shore Ry. Co 6(1 Leslie v. Consolidat. Bank, 343, 358, 520 " V. Rogers 343, 520 Lesperance V. Lesperance 579 Lessardv. Bernier 721 " V. Cor. of Three Rivers 221, 594 " V. Genest....: 176 Letourneux v. Beauohamp 13 " V. Dansereau,.... 363 " V. Soulard 311, 657 Levasseur v. Scott 574 LeveiUe v. Daigle 75, 548 Levi V. Reed 707 Leville v. O'Brien 407.,. 61L 823 TABLE OP CASES 824 Levy V. Barbeau 356 ■" V.Leonard 216, 321 'Lewis V. Jeffry 83 " V. Osborne 573 " V. Windsor Hotel Co 390, 694 L'Hero v. Leoni 332, 682, 784 L'Heureux v. Lamarche 12 " V.May 503, 541 Libby V. Wyman 90,460, 743 Liggetv. Tracey 711 Lighthall V. Caflfrey Ill " V.Craig 255 Lionais V. Cuvillier 537 " V. Gilbert 130 ■' V. Lemoine 178 V. Molson's Bank 628, 739 Little V.Bell 434 Livesy v. AUen 514 Loohead v. Danglais 216, 418 Logan V. Kilgour 50, 131, 509, 634 Logue V. McCracken 569 Loiselle v. Paradis 91, 176 London Lancashire Life Ins. Co. v. Lapierre 377 Longpr6 v. Valade 600 Longtin v. La Sooiete Per. de Con. 7, 678 Loranger v. Larue 30 Lord V. Dunkerly 703 " V.Elliott 702 " V. Exchange Bank 268, 397 " V. La Cie. du chemin de fer du IS^ord 232,710, 593 Lord V. Morgan 686 " V. Stabb 443 Law V. Montreal Telegraph Co. 168, 737 L'Union St. Joseph V. Lapierre.... 168 Lupien v. Beaudry 4'.], 618 " V. Les Com. d'Ecoles d'Ho- ohelaga 56, 555 Lussier V. Corp'nofHochelaga 62 Lynch v. Henshaw ....360, 362, 527 " V. Lalonde 249, 324 " V. Regina 191 Lynn v. Cochrane 441, 442, 672 " V. Niven 441, 672 3yn Macdonald V. Burland 176 " V. Joly 54,137 V. Mann 225 " V. Robert 706 " V. Whitfield 75 Macdougall v. Demers 73 '■ v. Grendron 155 " V. Macdougall 686 " V. Prentice 514 " V. Union Nav. Co. 166, 390 Macintyre v. Murphy 357 Maicfarlane v. Caldwell 353 " v. Corp'nofSt.Cesaire 240 Mack v. Welsh 706 Mackedie v. Mongeon 364 Mackinnon v. Thompson 664 Macmaster V. Mofiatt , 153 Macnider v. Tessier 655 Magistrates Court for Brome v. Blinn 430 Magog Textile & Print Co. v. Dobell 393 Maher v. Aylmer 436,670 Mahoney v. Beaudet 663 Malboeuf v. Larendeau 293 Mailley v. Thibodeau 607 Major V. Corp'n of Three Rivers... 158 " V. Chadwiek 33,341 " V. Lalonde 209,432 Malhiot V. Corp'n of Three Rivers. 158 Mallette v. Lenoir 662 « V. Robitaille 631 " v. Tremblay 561 Malo V. Melangon 148 Maloney v. Hearn 462 Mann v. Hogan 91 " v. Holden 207 " v. McDonald 36,225 " V. Munro 216 " V. Nield 216 Marceau v. Hudon 321 " V. Ross 559 Marchand v, Gelinas 10^ " V. McGreevy 151, 525 " V.Wilkes....'. 81,133,346 Marchildon v. Hamel 154,314 Marcoux V. Leroux ™° Marett v. Robitaille 261 • Marks v. Freach.... 206 825 TABLE OF CASES 826 Marmeau v. Hart 287 Marouin v. Bolduc 430 Marsouiu v. Vilbon 377 Martel v. Prince 454 « V. Richard 249,729 " V. Shortis 284 JMarquis v. Marquis 781 "Martin V Bayard ]74 " V. Corp'n of Ascot 213,481 " V. Dominion Oil Cloth Co... 276 " V. Gravel 285, 303 " V.Kent 464 " V. La S. de C. P. de Quebec 302 " V. Poulin 82, 133 " V. Quebec P. Building Soc. 302 " V. Regina 197 " V.Rosenheim 267 " V. Roy 211 " v^ St. Pierre 19, 178 Martineau v. Pierreville Steam Mill Co 225,621 Mason v. Delaware & Lackawana Railway 1A3 " v.Gebhardt 404 jMassicotte v. Archambault 643 Massie V. Rheaume 684 Masson v. Rosaire 635 Ma-sue V. Bruneau 42, 92 Mathieu v. Berard 698 " V. Francoeur 129 Mathison v. Whiilock. 297 Matte v. Latoche 614 fctthewson v. Fletcher 287 Mattinson V. Cadieux 739 May V. L'Heureux 284 Mayor of Iberville v. Jones 160 Mayor of Montreal V. Bagg 294 " V. Bourgouin .... 213 '' V. Brown 54 ^ V. Drummond... 163 *' V. Frothingham. 50 " v.Orenier...l63, 213 V. Hubert 44,57 " v.Molson ...159, 406 " V.Morrison 231 Mayor of Quebec v. Gray 220, 494 " v.O'Neil 163 " V. Riopel 162 Mayor of Sorel v. Armstrong 783 Mayrand V. McGreevy 313 McArthur v. Dorion 771 " V.Gibson - 36 V. Mulholland...347,528, 529 '■' « V. Riddell 687 " V. Whyte 348,529 McBarron v. McGreeyy 152 MeBean V. Carlisle 203 McCafirey ex parte 318 " V. Bruneau 395 " V. Claxton 155, 313 McCarthy ex parte 31, 187,319 « V. Leduc 126,711 " V.Morris 35 McClanaghan v. St. Ann's Mut. B'g Soc 98 McConkey v. Canadian Union Co.. . 120 McCord v. Les Religieuses, etc 601 McCorldll V. Knight 659 McCraken v. Logue 569 McCuaig V. Mor'ison 754 McCuUoch V. Griffin 23 McDonald v. Dawson 248 " V. Grand Trunk Ry 710 " V.Mann 36 " V. McLean 403 McDonnell v. Buntin 127 " V. Fulton 640 " V. Gaudry 641 " V. Normandeau 292 McDougall V. Gendron 155 '■ V. McDougall 68f> McEwenv. Riel 82,267 McGauvran v.Stewart 345 McGee V. French 292 McGibbon v. Bedard 268 McGinnis v. Careau 286, 716 McGrath ex parte 188, 320 McGreevy v. Beemer 144, 269 " V. Corp'n of Three Ri- vers. 222 '•' V. Cote 13 " V. Douoet 298 '' V.Johnson 596 '• V. Gagne 174,298 V. Leduc 652 '' V. Mai'chand 525 V. Michaud 525 " V. Mayrand 313 " V. Paille 437 '' V. Merchants' Bank 558 " V. McBarron 152 '' V. Normand 246 " V. Russell 749 " V. Senecal 60, 87 Mclnnes v. Brown 349 " V. Vezina 284 McKeand v. Frostby !....... 363 " Frizzell 77, 584 MoKenziev. Shaw 110, 210 " V. Turgeon 258 " V. White.... 42,258 McKinnon & Campbell 463 McLagan V. Allan 211 McLaren & Corp. of BucTcingharn 48, 62 827 TABLE OP CASES 828 McLaren v. Ostell 586 McLea v. Evans 439 " V. McDonald 403 McLean v. Kane 43, 681 McLellanv.McLellan 634 McLennan v. Grange 244 " V. Hubert 584 V. Trenholme 277 McLeod V. Ea stern Townships Bank 85 " V. Monham 649 McMartin V, Bayard 174 McMillan V. Hedge 693 " V.Robertson 456 McNamee v. Fulton 276 " V. St. Lawrence Steam " Nav. Co 28 McNaughton v. Jette 19, 663 McNider V. Lavigne 658 McShanev. Hall 793 " V.Henderson 703 « V. Milburn 703 McWiUiam v. Mindlay 517 Mechanic's Bank v. Bramley 83 " V.Brown 341, 597 Meigs V. Foster 141 Melangon v. Male 148 " v. Prevost 340 Merchants' Bank v. Consol. Bank.. 312 ■' V. Denholm 68 " V.Lamb 414 V.Leslie 343 " V. MoGreevy 558 " V. Millar 646 V.Whitfield... 80, 312, 389 Marine Ins. Co. v. Ross 373 Mercier v. Guay 215 " V.Laurent 584 V. Price 263 Methotv. Dufort 7,758 " V.Burke 206 " v. Guimont 217 Metras V. Nicholson 37 Metropolitan Bank v Serre 543 « V. St. Jean 34, 80,. 434 Building Soc. v. R. C. School Comr. 353 Meunier V. Compte 427 Michaud v. British Medical Asso.... 377 " V. Holland 126,398 " v.Vezina 9, 516 Michon t. Gauvreau 275 " v. MuUin 643 Middlemis v. Les Religieuses, etc... 683 Miliken V. Beard 5 Millen V.Shaw 435 Miller v. Can. Extract Co 521 " V.Coleman - 756 Miller v. Merchants Bank 646 Millet V. Hus 541 Mille'tte V. Tremblay 561 Mills V. Fish 377 " V. Thibodeau 549 Milot V. Perreault 393 Minister etc. of St. Andrew's church V. Board of TemporaUtiei 561 " V.Johnson 538 Mitcheson v. Montreal Loan and Mortgage Co 654 Moat V. Consolidated Bank 520 " V. Moisan 656 " V. Renny 714 Moffatt V. Burland 651 " V City of Montreal 692 " V. MacMaster 153 Moisan v. Jolicoeur 216 " V. Moat 656 V. Roche 313 Moisic Iron Co. v. Olsen 109, 112. Moloney v. Robertson 357 Molson V. Carter 17, 335 " V. Cohen 408 " V. Mayor, &c. of Montreal. 159, 407 Molson's Bank v. Bank of Comm... 544 " " V. Dunspaugh 86 " V. Griffin 172 " V. Lanaud 363 " " V. Larue 637 " " V. Lionais 628,739 " " V. Ry & Newspaper , Ad. Co 71,391 " « V.Ross 70 " " V. St. Lawrence & Chicago For- warding Co 70 "■ " V.Walter 80 Mondelet V. Regina „ 179 « V.Roy 692 Mondou V. Quintal 226 Monette v. Evans „ 457 Mongenais v. Rochon 238, 683 McHigeon V. Mackedie 364 Monk V. Ouimet 65 Montizambert v. Dumontier 533 Montrait t. Williams 17^ Montreal City Passenger By v At- torney General 713 Montreal City Passenger By v Par- ker :. 214 Montreal Cotton Co. v. Corp. of Sa- laberry. 49, 510 « " V.Jones 165 "■ Gas Co. V. Corp. of Ho- chelaga ]59» 829 TABLE OF CASKS 830 Montreal Loan & Mortgage Co. v. Boyer 603 " Loan & Mortgage Co. v. Fauteux 500 " Loan & Mortgage Co. v. Mitcheson 654 '' Manufacturing Co. v. Hart 168 O. & 0. Ry. Ca v. Bour- goin 61 " O. & W. Ry Co. V. Bury.. 589 " " " V. Corp. of Ottawa.... 224 " P. B. Ry Co. V. Hatton... 169 " & Sorel Ry Co. v. Desro- siers 146 " & Sorel Ry Co. v. Vinc- eent 38,172 " Telegraph Co. V. Low 168 " Tow Boat Co. v. Beaupre. 220, 494 " Turnpike Road Co. v. Daoust ...221, 626 Moore v. Harris 218 " V. Paquet 222,586 Moquin v. Betournay 2.56 '' V. Brossard 576 Morasse v. Baby 718 " V. Ladouceur 72 Moreau V. Barthe 364 '■ V. CoUin 450 Morehouse v. Burland 76, 281 , Morency v. Moreney 252 Morgan v. Cote 466 « Lord 685 Morin V. Attorney GeneraL 419 " V. Fournier 280 " V. Grenier 85 Morison v. Rafter 385 Morneau v. Atkinson 217 Morrill V. Eastern Townships Bank. 561 Morris v. Court 354 " v.MoCarthy 35 Morris v. Auggerty 14,33 " V. Passumpsic and Com. Rivers Ry 502, 648 Morrison v. Mayor, &c. of Montreal 231 " V. McCuaig 754 Morton v. Niagara District Ins. Co. 438 Moses V. Rafter 385 Mohs V. Silverman 664 Motz V. Carrier 72,493 Mount Royal Per. Building Society V. Longtin , 7, 678 Muldoon V. Lacroix 331 Moynaugh v. Smith 764 Mulholland V. McArthur 347, 52S Mullin V. Gray, Creek Dairy Co... 23 " V. Lajoie 116 " V. Michon 643 Municipality of Cleveland v. Muni- cipality of Melbourne 93 Municipality of Halifax v. Proteau. 42 Municipality of Levis v. Roberge... 480 Munn v. Berger ". 277 Munro v. Mann 216 Murphy v. Connolly 339 « V. Donihee 769 '' V. MacEntyre 357 V. Thomas 660 Murray v. Arnton 247 " V. Bickerdike 308 " V. Head 308 Mutual Fire Ins. Co. Stanstead & Sherbrooke v. Holmes 369 '' Fire Ins. Co. of Stanstead & Sherbrooke v. Fletcher 395 Myrand v. Legare 547 2sr Nadeau V. Baby , 46, 684 ' « V. Bouffard 90, 176 " V. Pacaud 246 Narbonne Exp 122, 187 National Bank v. Canada Building Society 100 National Ins. Co. v. Aitken 368 « V. Black 376 « V.Elliott 376 National Ins. Co. v. Hatton 391 " V.Paige 21 " V. Trudel 366 Naultv. St. Cyr 259, 532 Nelson v. Harrison 246 New- York Central Sleeping Car Co. V.Donovan 21, 169 Niagara District Ins. Co. v. Morton. 438 Nichols V. Haas 712 831 TABLE OF CASES Nicholson V. Metras, 37 Nield V. Ferland 679 " V.Mann 216 Nightingale v. La Societe de Cons. Canadienne 599 Niven v. Lynn 672 Nolan V. Crane 439 " V. Dastous 251 Nordheimer v. Gurney 142 " V. Leclaire 666 " V. Eeid 223 Normand v. Beausoleil 347, 530 •' V. La Cie de Navigation. 419 " V. Langlois 208 V. McGireevy 60, 246 " V. Eegina 263, 420 Lawrence Naviga- Normand v. St tion Co 419 Normandeau v. McDonnell 292 Normandiri V. Les Religieuses &c... 670 " V. Ouimet 675 North British Fire and Life Ins. Co. V. Lambe 413 North Shore By V. Cantin 591 " V. Chateauneuf..... ,"^91 " V. Faucher 593 " V.Jackson 211 " V. Les Ursulmes de Quebec 60 Northern Ass. Co. v. Hart 46, 580 " V. Prpvost 369 Nuns of Hotel-Dieu V. Middlemis... 683 Nutbrown v. Union Bant 497 O'Brien v. Canada Union Building Society 101 " V. Thoma« 26 Ockslayer ^a;p 183 O'Farrell v. Brassard 55, 554 " V. The Council of the Bar 41 Ogden V. Dawson 137, 753 O'Kane Bxp 188 O'Keefe V. Desjardins 148, 459 Olsen V. Moisic Iron Co 109, 111 O'Malley v. Scottish Com'l In. Co.. 22 O'Meara v. Auger 464 O'Naskeverat Exp 464 O'Neil V. Peacky 464 Ontario Bank v. Cotton 361 " " V. Toupin 689 " " V. Union Bank 149 " Car Co. V. Foote 149 " Navigation Co. v. St. Jean... 220 O'Shaugnessy v. Corp. of Ste Clo- tilde 490 Oetell V. McLaren 686 Ottawa Agricultural Ins. Co. v. Bou- thillier 367 Ottawa Agricultural Ins. Co. v. She- ridan 375 Ouimet v. Bergevin 29 " V. Cadot 743 " V. Ibbott«on. 160, 668 " V. Lafood 13 " V. Monk 65 " V. Union Bank 65 " V. Verville 676 , Owens V. UnionBank 455 Pacaud v. Aikman 599 " V. Hemming. 430 " V. Huston 638 " V. Poissant 47 " V. Queen Ins. Co 367 " v..Rickaby 53, 323 Paige V.Evans 350 " v. National Ins. Co 21, 560 « V. Ponton 85,705 PaiUe V. Mc&reevy... *3' 833 TABLE OF CASES 834 Painohaud V. Hudon 71, 628 Panel v. Boisseau 105, 684 " v.Hamel 57,301,556 Panneton v.Rheaume 410 Paper Co. of Canada v. Carey 540 Papineau v. Taber 237 Paquet V. Moore 222 " V. Watts 651 Paquette v. Can. Pacific Ky 236, 594 " V. Central Vermont Ey... 218 « V. Cote 438, 671 « V. Guertin 321 " v.Regina 192 « V.Scott 286 Paradis V. Cote 402 " V. Loiselle 91, 176 Parent v. Canadian Fire Ins. Co 368 " V. Heneault 577 " V. Vachon 496 " V. Falardeau 637 " V. Frigon 127 Parenteau v. Cotnoir 26 Parham v. Montreal Cotton Co 686 Parker V. Fuller 75, 281 " V. Montreal City Pass Ey.... 214 Passumpsic & Con. E. Ey Co. v. Morris 502 Paterson V. Knight 701 Patoine v. Corp'n of Arthabaska.... 489 Patrick v. Cie des Moulins de Pier- reville 382 " V. Corp. of I'Avenir 213 " V. Tourville 341 Patten V. Cox 273 Pauze V. Lamarche 16 Payette V. Scott 384 Peaoky v. O'Neil 464 Pearson V. Western Ins. Co 373 " V. Wurtele 701 Pellerin V. Leblanc 47 Pelletier v. Bernier 224, 709 " V. Danjou 651 " V. Pouliot 356 " V.Thompson 270 Peloquin v. Sinoennes & McNaug- ton 219 Pepin V. CourchSne 720 Perionv. Dompiei-re 221 Perkins v. Bank of Toronto 384 " V.Brown 90 " V.Dixon 661 " V.Evans 354 " v.Hutchins 352 « V.Nye 699 " V. Eoss 540,638 " V.Watson 618 Perrault v. Bertrand 204 " V. Daigneault 46, 579 " V. Milot 393 Perron v. Doyon 42 Perry v. DeBeaujeu 204, 740 Peters V. Senecal 396 Petitclere v. Benoit 106 Phelan v. Power 426 Phillips v. Choquette 46 " V.Joseph 382 " V. Sutherland 35 Piche V. Corp. of Quebec 208 Pierce V. Butlers 6 Pierreville Steam Mill Co. v. Marti- neau 226, 621 Pillow V. City of Montreal 709 " V. Mousseau '415 Pilon V. Brunet 130 Pineau v. Eimouski 675 " V. Eoy 780 Pinkerton v. Cote 522 Pinsonnault v. Brown 446 " V. Desjardins 280 " V. Doucet 496,660 " V. Geriken 302, 408 " V. Hart 422 Pion V. La Cie du Chemin de Far du Nord 619 Piton V. Lepage 783 Poirier v. Lareau 4 Poissantv. Barrette 16, 427, 570 " V. Lanctot 549 Poisson V. Pacaud 47 Poitras v. Berger 410 " v. Chaloner 174 " V. Lemelin 227 Pollock ^a:p 187, 318 Ponton V. Paige 85, 705 Pope V. Einfret 414 Porteous v. Eeynar 446 Pothier V. Grenier 77 Poulin V. Arpin 81, 345 " V. Corp .of Quebec 93 " V. Hudon 506 " V. Martin 82, 346 " V. Prevost 173 " V. Turcotte 691 " V.Williams 437,671 Pouliot V. Corriveau 721 " V. Fraser 241 " V. PeUetier 355 Poupart V. Verronneau 769 Powell V. Walker 211, 708 Power V. Phelan 426 Pound V. Kingsborough 17 Prentice V. Aubry 577 " V. Austin 627 " V. Macdougall 514 27 835 TABLE OF CASES 836 Prevost V. Gauthier 687 V. Lachaine 598 V. Lalonde 507 V. Latreille 301 V. Northern Ass. Co 369 V. Poulin 173 V. Eodgers 508, 628 Price V. Chartre 643 " V. La Corp. de Ste.Genevieve 622 " V.Hall 423, 565 " V. Mercier 265 Prieur V. Filiatrault 261 Primeau v. La Banque Ville-Marie. 84 " V. The Sovereign Ins. Co. 370 " v.Trudeau 627 Prince V. Martel 454 Proulx V. Larochelle 782 Pronty V. Eutherford 285 Proteau v. Municipality of Halifax 42 Provincial Ins. Co v. O'Connelly 283, 773 " " " v. Roy 370 " " V. Tough 366 Q, Quebec and Gulf Ports SS. Co. v. Amazon Ins. Co 83 Quebec Bank v. Lemieux 340 " « V.Scott 74 '' Permanent Building's So- ciety v. Martin 302 QuebecWarehouse Co. v. Corpn of Levis 162, 491 Queen Ins. Co. v. Att'y Gen.66, 95, 762 " V. Pacaud 367 Quesnel v. Beland 447 " V. Corp'n of Princeton 122 Quinn v. Leduc 462 :ei. Racine v. Kane 155 Rae V. La Cie de Chemin Macada- mise 145 Rafter v. Morrison 385 " V.Moses 385 " V. Wilson 563 Railway ^ the execution of the will shall last, whether by directly naming and designating those who shall replace them himself, or by giving them power to appoint substitutes, or by indicating some other mode to be followed, not contrary to law." But it was not in this manner the testator designed that the purpose of his will should be permanently carried into evecution. It is true that he directs that three persons to be named by his trustees should com- pose with them the first board of governors of the institute, which he desired should always be composed of five persons, and of which Mr. Abbott was to be president for life, with power to them to supply any vacancy caused by death or resignation ; but this is the scheme he provides for the governing body of the intended corporation, as is shewn by the direction which immediately follows it, viz, " that so soon as thp requisite charter shall have been obtained containing all the powers necessary to carry out my designs herein contained," the pro- perty should he conveyed to the corporation. Their Lordships having regard to the scheme of the will, cannot think it was the intention of the testator to create, or attempt to create, a board of governors in per- petuity without the authority of a charter or statute, and so endanger his devise, at least as regards the immoveables, as being an unau- thorized gift in mortmain. The third and remaining objection is that the gift failed, being a gift to a society not in existence at the testator's death. If the devise had been to a society or a corporation to be afterwards called into existence or created without the interposition of fiduciary legatees or trustees, this objection might have given occasion to difficul- ties of great weight. It was said by the Court of first instance in Des Rivieres v. Richard- son (1) : — " It may be admitted that, if by a will an immediate devise is made *o a corporation not in existence, it will be void, as there is no such cor- porate body to receive, and it would be equally void even if the cor- poration were afterwards created without some special and express law to take the case out of the general principle. But it was also said in the same ease in the Court of Appeal : — (1) Stuart's Keii. 218. 866 PRIVY COUNCIL Abbott " "^^^ second ground of objection is also untenable, for althougli it Frfher '^ admitted that a legacy is lapsed (i. e., 'caduque') when left to an indi" dual, or to a body politic and corporate, not in esse ; yet the principle does not apply to tliis case, inasmuch as the trustpes were all alive when the testator made his will, and they received the bequest for the benefit of the Royal Institution, as soon as it should please the Provincial Government to give to airy nothing, " a local habitation and a name." That ca=e no doubt differed in some of its facts from the present as the Royal Institution had been, in some sense, incorpo^'ated before the date of the will ; but the principle is asserted in it that the inter- vention of trustees will, in some cases at l^ast, prevent a lapse. Their Lordships on this point, having regard to Art. 869, which permits the appointment of fiduciary legatees for charitable and other lawful purposes, and to Art. 838, which, in the case of legacies sus- pended after the testator's death in consequence of a condition or sub- stitution, declares that the capacity to receive is to be considered rela. tively to the time when the 'right comes into effect, are of opinion that there has been no lapse in this case, and that the trustees may carry the l^urpose of the tet- tator into effect if and when the corporation of the Fraser Institute is duly incorporated. The transfer of the property to the corporation is directed to be made by conveyance from the trustees who, in then making it, will execute the lawful purpose for which the property was entrusted to them. It is evident that the charitable and lawful purpo.-es mentioned in Art. 869 were not meant to be confined to such trusts only as may be created for the benefit of same definite persons. The use of the word " purposes " indicates that bequests may be made to uses for general and indefinite recipients so long as the purpose be charitable or lawful, and the bequests be within the limits permitted by law. Their Lordships, for the reasons given, think that the devise in question complies with these conditions and ought to be sustained ; and they will humbly advise Her Majesty to reverse the judgment of the Court of Queen's Bench, and direct that the suit be dismissed. But, considering that the law of Canada on the questions arising upon this . will was in an unsettled state, their Lordships think that the heirs of the testator might rea-onably dispute its validity, and that the parties, therefore, should pay their own costs of the litigation below and of this appeal. Wilde, Berger, Moore & Wilde, solicitors for the appellants. Bishop, Bompas, & Bischoff, solicitors for the respondents. PRIVY COUNCIL 867 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, 1878. Angers 5th July, 1878. Insumnce Co DQpany. Coram Sie Jambs Colvile, Sik Barnes Peacock, Sir Montague E. Smith, Sir Eobbet P. Collike, The Master op the Rolls. ANGERS c THE QUEEN INSUK.ANCE COMPANY. In this case their Lordships do not intend to call upon the counsel for the respondents. This is an appeal from a judgment of the Court of Queen's Bench in Canada, affirming a judgment of the Superior Court of the District of Montreal. The judgment appealed against was unanimous on one of the two points to which the appeal relates, and was decided by four Judges against one on the other. The real decision was that the clauses of a statute of the Province of Quebec, 39th of the Queen, Chap. 7, which imposed a tax upon ceitain policies of assurance^ and oprtain receipts or renewals, were not authorized by the Union Act of Canada, Nova Scotiai and New Brunswick; which entrusted the Province, or the Legislature of that Province, with certain powers conferred by the 92nd section of the Act in question are sufficient to authorise the statute which is under consideration? It is not absolutely necessary to decide in this case how far, if at all the express enactments of the 92nd section of the Act are controlled by the provisions of the 91st section, because it may well be that, so far as regards the two provisions which their Lordships have to consider, namely, the subsections 2 and 9 of the 92nd section, those powers may co-exist with the powers conferred on the Legislature of the Dominion by the 91st section. Assuming that to be so, the question is : whether what has been done is authorised by those powers ? The first power to be considered, though not the first in order in the Act of Parliament, is the 9th subsection. The Legislature of the Pro- vince may exclusively make laws in reJation to " shop, saloon, tavern, auctioneer, and other " hceiises, in order to the raising of a revenue for " provincial, local, or municipal purposes." The statute in question purports to be, on the face of it, an exercise of that power. It enacts that every assurer, except people carrying on marine insurance, shall be bound to take out a license, before the 1st day of May in each year, from the revenue officer of the district, and to remain continually under license. It then, by the second section, enacts what the price of the license is to be. And reading it shortly, it amounts to this : that the price of the license shall consist of a stamp affixed to the policy or receipt or renewal as the case may be. The adhesive stamp is to be, in the case of fire, 3 per cent., and 1 per cent, for other assurances on the premiums paid. Then the fourth section enacts that anybody who, on behalf of an assurer, shall deliver any policy or renewal or receipt 868 PRIVY COUNCIL Augers without the stamp shall be liable for each contravention to a penalty of Queen ^^'^^ dollars. The fifth section says that every assurer bound to take Insurance out a license shall be liable in each case to a penalty not exceeding fifty ■ dollars if it has been delivered without an adhesive stamp. The sixth section says that every person who affixes the stamp shall be bound to cancel it so as to obliterate it, and prevent its being used again. And the seventh makes all policies, premium receipts or renewals, not stamped as required by the Act, invalid. It says they " shall not be " invoked, and 'shall have no effect in law or in equity before the Courts " of this Province.' Then there are certain sections of the Quebec License Act which are incorporated, and the Act is not to apply to assu- rances not within the Province. The only provision of the Quebec License Act which it is necessary to refer to is the 124th: "For every license issued '' by a revenue officer, there shall be paid to sucli revenue officer, " over and above the duty payable therefor, a fee of one dollar by the " person to whom it is issued." Kow, the first point which strikes their Lordships, and will strike every one, as regards this Licensing Act, is that it is a complete novelty. No such Licensing Act has ever been seen before. It purports to be a Licensing Act, but the licensee is not compelled to pay anything for the license, and, what is more singular, is not not compelled to take out the license, because there is no penalty at all upon the licensee for not taking it up ; and, further than that, if the policies are issued with the stamp, they appear to be valid, although no license has been taken out at all. The result, therefore, is, that a license is granted which there are no means of compelling the licensee to take, and which he pays nothing for if he does take ; which is certainly a singular thing to be stated of a license. They say on the face of the statute, " The price of each license shall consist," and so on. But it is not a price to be paid by the licensee. , It is a price to be paid by anybody who wants a policy, because, without that, no policy can be obtained. It may be that the company buys the adhesive stamps, and affixes them, or pays an officer of the company the money necessary to purchase them and affix them ; but whoever does it complies with the Act. Another observation which may be made u|..on the Act is this: that if you leave out the clauses about the license' the eftect of the Act remains the same. It is really nothing more nor less than a Stamp Act if you leave out those clauses. If you leave out every direction for taking out a license, and everything said about the price of a license, and mere- ly leave the rest of the Act in,the Government of the Pjovince of Quebec obtains exactly the same amount by virtue of the statute as it does with thelicense clauses remaining in the statute. The penalty is on the issuing of the policy, receipt or renewal ; it is not a penalty for not taking out the license. The result, therefore, is this, that it is not in substance a license Act at all. It is nothing more or less than a simple Staup Act PRIVY COUNCIL 869 on policies, with provisions referring to a license, because, it naust be j^^neers presumed, the framers of the statute thought it was necessary, in order * to cover the kind of tax in question witli legal sanction, that it should rnsuranoe be ma'le in the shape of the price paid for a license. ompany. If that is so, it is of no use oonsideringhowfar, independently of these considerations, the 9th sub-section of the 9:2nd section would authorize a sum of money to be taken from an assurance company in respect of a license. With regard to the precedents cited, it was alleged, on behalf of the appellants, that though at first sight it might appear that this was not a license, and that this was not the price paid for a license, yet it could be shown by the existing legislation in England and America that licenses were constantly granted on similar terms ; and that therefore in construing the Dominion Act we ought to construe it with reference to the other subsisting legislation. Their Lordships think that a very fair argument. But the question is, is it true in fact ? When the instances which were produced were examined, it was found that they were of a totally diflferent character. They might be described as licenses granted to traders on payment of a sum of money ; but the price to be paid by the trader was estimated either according to the amount of business done by the trader in the year previous to the granting of the license, or with reference to the value of the house in which the trader carried on business, or with reference to the nature of the goods, as regards quantity especially, sold by the trader in the previous year. They were all cases in which the price actually paid by the trader for the license at the time of granting it, was ascertained by these considerations. It was a license paid for by the trader, and the actual price of the license was ascertained by the amount of trade he did. This is not a payment de- pending in that sense on the amount of trade previously done by the trader. It is a payment on the very transaction occurring in the year for which the license is taken out and is not really a price paid for a license, but as has been said before, a mere stamp on the policy, re- newal or receipt. As this is the result to which their Lordships come, it becomes neces- sary to consider the effect of the 2nd sub-section of the 92nd section. That authorizes " direct taxation within the Province in order to the raising of a revenue for provincial purposes." The single point to be decided upon is whether a Stamp Act — an Act imposing a stamp on policies, renewals and receipts, with provision for avoiding the policy, renewal or receipt, in a court of law, if the stamp is not affixed — is or is not direct taxation ? Now, here again we find words used which have either a technical meaning, or a general, or, as it is sometimes called, a popular meaning. One or other meaning the words must have ; and, in trying to find out their meaning, we must have recourse to the usual sources of information whether regarded as technical words, words of art, or words used in popular language. And that has been the course 870 PRIVY COUNCIL Angers pursued by the Court below. First of all, what is thp meaning of the * words as words of art ? We may consider their meaning either as words Insurance used in the sense of political economy, or as words u*ed in jurispru- P ny- ^gj^gg jjj ^jjp courts of law. Taken in either way there is a multitude of authorities to show that such a stamp imposed by the Legislature is not direct taxation. The political economists are all agreed. There is not a single instance produced on the other side. The number of instances cited by Mr. Justice Taschereau. in his elaborate judgment, it is not necessary here to more than refer to. But surely if one could have been found in favor of the appellants, it was the duty of the appellants to call their Lordship i' attention to it. No such case has been found. Their Lordships, therefore, think that they are warranted in assuming that no such case exists. As regards judicial interpretation' there are some English decisions, and several American decisions, on the subject, many of which are referred to in the judgment of Mr. Justice Taschereau. There, again, they are all one way. They all treat stamps either as indi- rect taxation or as not being direct taxation. Again, no authority on the other side has been cited on the part of the appellant. Lastly, as rr-gardsthe popular use of the words, two cyclopaedias at least have been produced, showing that the popular use of the word is entirely the same in this respect as the technical use of the word. And, here again, there is an utter deficiency on the part of the appellants in producing a single instance to the contrary. That being so, it is not necessary, it appears to their Lordships, for them to consider the scien- tific definition of direct or indirect taxation. All that it is necessary for them to say is, that fin ling these words in an Act of Parliament, and finding that all the then known definitions, whether technical or general, would exclude this kind of taxation from the category of direct taxation, they must consider it was not the intention of the legislature of England to include it in the term of direct taxation, and therefore that the im- position of the stamp duty is not warianted by the terms of the 2nd sub-section of section 92 of the Dominion Act. That being so, it appears to their Lordships that the appeal fails, and they will, therefore, humbly advise Her Majesty to affirm the decision of the Court below, and dismiss the appeal. Appeal dismissed. PRIVY COUNCIL 871 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Attorney- General London, Nov. 26, 1884. -^^^^^ Before The Lord Chanoelloe, Lord Fitzgerald, Sir Moxtague E. Smith, Sir Robert P. Collier. THE ATTOUNEY-GENERAL FOR QUEBEC, v. IIEKD. The Lord Chancellor delivered judgment as follows : — Their Lordships have considered the argument which they have heard, and they have come to the conclusion that the judgment appealed from must be affirmed. The points to be considered are three : first of all, can this charge upon exhibits used in the courts of justice of the province be justified under the 2nd sub-section of clause 92 of the British North America Act? Is it a case of direct taxation within the province " in order to the " raising of a revenue for provincial purposes?'' What is the meaning of the words " direct taxation." Now it seams to their Lordships that those words must be understood ^ith tome reference to the common understanding of them which pre- vailed among those who had treated more or less scientifically such subjects before the Act was passed. Among those writers we find some divergence of view. The view of Mill, and those who agree with him, is less unfavourable to the appellant's argument than the other view, that of Mr. McCuUoch and M. Littre. It is, that you are to look to the ultim- ate incidence of the taxation as. compared with the moment of time at which it i< to be paid ; that a direct tax is — in the words which are printed here from Jlr. Mill's book on political economy — " one which is " demanded from the very persons who it is intended or desired should " pay it." Ank then the converse definition of indirect faxes is, '■ those " which are demanded from one person in the expectation and inten- " tion that he shall indemnify himself at the expense of another." Well now, taking the first part of that definition, can it be said that a tax of this nature, a stamp duty in the nature of a fee payable upon a step of a proceeding in the administration of justice, is one which is demanded from the very persons who it is intended or desired should pay it? It must be paid in the course of the legal proceeding, whether that is of a friendly or of a litigious nature. It must, unless in the case of the last and final proceeding after judgment, be paid when the ultim- ate termination of those proceedings is uncertain ; and from the very nature of such proceedings, until they terminate, as a rule, and speak- ing generally, the ultimate incidence of such a payment cannot be as- certained. In many proceedings of a friendly character the per.-on who pays it may be a trustee, an administrator, a person who will have to be indemnified by somebody else afterwards. In most proceedings of a • eontentious character the person vrho pays it is a litigant, expecting or 8Y2 PRIVY COUNCIL Attorney- doping for success iu the suit ; and whether he or liis adversary will o-Mieral have to pay it in the end, must depend upon the ultimate termination Reed. of the controversy between them. The Legislature, in imposing the tax, cannot have in contemplation, one way or the other, the ultimate determination of the suit, or the final incidence of the burden, whether upon the person who had to pay it at the moment it was exigible, or upon anyone else. Therefore it cannot be a tax demanded " from the " very persons who it is intended or desired should pay it ; " for in truth that is a matter of absolute indifference to the intention of the Legis- lature. And on the other hand, so far as relates to the knowledge which it is possible to have in a general way of the position of things at such a moment of time, it may be assumed that the person who pays it is in the expectation and intention that he may be indemnified; and the law which exacts it cannot assume that expectation and intention may not be realized. As in all other cases of indirect taxation, in particular instances, by particular bargains and arrangements of individual*, that which is the generally presumable incidence may be altered. An im- porter may be himself a consumer. Where a stamp duty upon tran- sactions of purchase and sale U payable, there may be special arrange- ments between the parties determining who shall bear it. The question whether it is a direct or an indirect tax cannot depend upon those special events which may vary in particular cases ; but the best general rule is to look to the time of payment ; and if at the time the ultimate incidence is uncertain, then, as it appears to their Lordships, it cannot, in this view, be called direct taxation within the meaning of the 2nd sub-section of the 92nd clause of the Act in question. Still less can it be called so, if the other view, that of Mr. McCuUoch, is correct. That point, which is the main point, and was ft'lt to be so by Mr. Davey in his very able and clear argument, being disposed of, the next question, upon the terms of the same section of the same Act, is that which arises under sub-section 14. One of the things which are to be within the powers of the Provincial Legislatures — within their exclusive powers — is the administration of justice in the province, including the constitution, maintenance, and organization of Provincial Courts, and including the procedure in civil matters in the Courts. Now it is not necessary for their Lordships to determine, whether, if a special fund had been created by a Provincial Act for the maintenance of the admi- nistration of justice in the provincial courts, raised for that purpose, appropriated to that purpose, and not available as general revenue for general provincial purposes, in that case the limitation to direct taxation would still have been applicable. That may be an important question which will be considered in any case in which it may arise ; but it does not arise in this case. This Act does not relate to the administration of justice in the Province ; it does not provide in any way, directly or indi- rectly, for the maintenance of the Provincial Courts ; it does not pur- PRivy COUNCIL 873 port to be made under that power, or for the performance of that duty. Attorney- The subject of taxation indeed is a matter of procedure in the Provin- General cial Courts, but that is all. The fund to be raised by that taxation is Reed, carried to the purposes mentioned in the second subsection ; it is made part of the general consolidated revenue of the province. It therefore is precisely within the words " taxation in order to the raising of a revenue for provincial purposes." If it should greatly exceed the cost of the administiation of justice, still it is to be raised and applied to general provincial purposes, and it is not more specially applicable for the administration of justice that any other part of the general provin- cial revenue. Their Lordships, therefore, think that it cannot be justified under the 14th sub-section. ' With regard to the third argument, which was founded on the 65th section of the Act, it was one not easy to follow, but their Lordships are clearly of opinion that it cannot prevail. The 6oth section preserves the preexisting powers of the Governors or Lieutenant-Governors in Council to do certain things, not there specified. That, however, was subject to a power of abolition or alteration by the respective Legisla. tures of Ontario and Quebec, with the exception, of course, of what de- pended on Imperial Legislation. Whatever powers of that kind existed the Act with which their Lordships have to deal neither abolishes nor alters them. It does not refer to them in any manner whatever. It is said that, among those powers, there was a power, not taken away, to lay taxes of this very kind upon legal proceedings in the Courts, not for the general revenue purposes of the province, but for the purpose of forming a special fund called " the Building and Jury Fund, " which was appropriated for purposes connected with the administration of jus- tice. What has been done here is quite a different thing. It is not by the authority of the Lieutenant-Governor in Council. It is not in aid of the Building and Jury Fund. It is a Legislative Act without any refer- ence whatever to those powers, if they still exist, quite collateral to them ; and, if they still exist, and if it exists itself, capable of being exercised concurrently with them ; to tax, for the general purposes of the province, and in aid of the general revenue, these legal proceedings. It appears to their Lordships that, unless it can be justified under the 92nd section of the British North America Act, it cannot be justified under the 65th. Their Lordships must, therefore humbly advise Her Majesty to dis- miss this appeal. 8'74 PRIVY couNcir, Brargouln JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. ^"^^^ 14me Fevrier, 1880. Coram Sir James W. Colvile, Sir Barnes Peacock, Sir MoNTAonB E. Smith, Sir Egbert P. Collier. BOURGOIN ET AL., V. LA COMPAGNIE DU CHEMII^ DE FER DE MOJSITK]^AL, OTTAWA ET OCCIDENTAL, ET BOSS. The only question which has been fully argued upon the four appeals consolidated in this record is whether the judgment of the Court of Queen's Bench rendered in the first suit. No. 693, was right in annulling and setting aside the award of the 28th of July, 1876, upon either of the grounds stated in it. As to one of those grounds which proceeds upon the assumption that the lump sum of $35,013, awarded to the appellants, included the whole value of the land, and not merely the value of their interest as lessees, it is not necessary to say anything, because that objection has not been pressed. The question, therefore, is reduced to this : can the judgment be supported on the other ground taken ? Their Lordships confined the argument, in the first instance, to that question, because they thought that if the award was found to be invalid on the face of it, that finding would go far to dispose of all or most of the questions which have been litigated between the parties. They will, therefore, for the present, confine their attention to the first of the suits and the final judgment therein, nor will they go into the facts further than is required in order to elucidate the single point to be now determined. The appellants are four persons holding a quarry, as lessees, under a Mrs. Smith. They are sometimes described as working together in two partnerships of two each, as " Bourgoin et Fils " and " Bourgoin et La Montagne," but for all practical purposes they may be treated as the four joint lessees of the quarry. The respondents, who were the plaintiffs in the suit, are a Railway Company, styled on the record " The Montreal, Ottawa, and Western Railway Company." The Company was incorporated originally under another title, viz., " The Montreal Northern Colonization Railway Company," by an Act of the Legislature of the Province of Quebec )32 Vict., c. 55), and was governed by that and a subsequent statute of the same Legislature, 34 Vict., c. 23. It was, therefore, in its inception a provincial railway. In 1873, however, the Parliament of Canada, by Act 36 Vict., c. 82, declared this railway to be a Federal enterprise, and by a subsequent statute i38 Vict., c. 68) changed the name of the Com- pany to that which it bears on this record. Hence, when the proceed- ings which resulted in the award in question were commenced, the rail- way had become a Federal railway, and the respondent company was subject to and governed by the provisions of the Canadian statute known as " The Railway Act, 1868." PRTVT COUNCIL 8*75 It appears that, in one or other of the above two states of existence, _ this company had proceeded in the usual way to ascertain the compen- *"''^°"^" sation payable to the lessor, Mrs. Smith, in respect of her freehold inte- ^°*^' rest in the land to be expropriated. The appellants intervened, and sought to have the sum payable to them for compensation in respect of their interest as lessees ascertained by the same proceeding. The Com- pany declined to accede to this, and having settled the amount of com- pensation payable to Mrs. Smith, took possession of the quarry. The appellants upon that instituted certain proceedings, in order to compel the Company to ascertain the compensation due to them : those pro. eeedings were ultimately successful, and thereupon the Company gave the notice of the 22nd of February, 1875, which was the foundation ot the proceedings that resulted in the award. Their Lordships think it right here to observe that, in their opinion, there is nothing exceptional in that notice, nothing which supports the suggestion that its terms were varied by reason of the Company having previously, and perhaps wrongfully, taken possession of the quarry. It appears to them to be the usual notice contemplated by " the Railway Act of 1868." The words which have been so much relied on as authorizing the arbitrators to settle all questions between the parties have been taken verbatim ei literatim from the 10th sub-section of the 9th section of that Statute. After the service of the notice, arbitrators were appointed and the award in question was made, and the only two documents besides the notice which seem to be in any way material for the decision of the question now to be determined are, the award itself, which is at page 12, and the claim of the appellants, which is at page 20 of the record. The material passage in the award, upon which the whole question turns, is that whereby the arbitrators, after stating that they had pro- ceeded to assess the compensation to be paid by the Company to the appellants for the piece of land described, and for all the damages re- sulting from the taking possession of the same, and had visited the said piece of land, and estimated with care and established the value of it and the amount of the said damages, proceeded to award " The sum of $35,013, plus $100 per month from this date, payable on the first of each naonth, until the said Company shall have set free the watercourse serving to drain the quarries adjacent to the expro- priated land, and constructed a culvert to protect the said watercourse, as being the amount of compensation to be paid by the said Montreal Northern Colonization Railway Company, now called ' the Montreal, Ottawa, and Western Railway Company,' to the said ' Bourgoin et Fils ' and Bourgoin and La Montagne for the said piece of land, and for all the damages resulting from the possession of the same." The objection taken to the award is now confined to that portion of the passage just quoted, which includes and follows the word "plus," and relates to what the arbitrators seem to have considered as wholly 8Y6 PRIVY COUNCIL Bourgouin '"' ^" P*''* *^® compensation due to the appellants in respect of that * portion of their claim which was comprehended in the words of its 4th head, and claimed damages for the watercourse diverted by the Com- pany, and for pumping and work to be done at the rate of $600 per annum for eight years (which they treated as the probable duration of their lease), and amounting to a gross sum of |4,800. Their Lordships, after full consideration of this case, and of the learned arguments upon it, have come to the conclusion that, in respect of the passage in ques- tion, the award is bad upon the face of it. The case of the appellants was very ingeniously put, particularly by Mr. Fullarton. His argument was to this effect. He said that the arbitrators probably conceived that, if they gave that full sum claimed on the assumption that the interrup- tion of the drainage would last for the whole duration of lease, fixed at eight years, they might be doing great injustice to the Company ; that by virtue of the 6th sub-section of the 7th section of " the Railway Act, 1868," which is in these words : — " To construct, maintain, and work the railwayacross, along, or upon any stream of water, watercourse, canal, highway, or railway which it intersects or touches ; but the stream, watercourse, highway, canal, or railway so intersected or touched shall be restored by the Company to its former state, or to such a state as not to impair its usefulness.'' The Company was, to the knowledge of the arbitrators, under a . statutory obligation to restore the watercourse ; that they assumed that the Company would perform that statutory obligation as soon as pos- sible ; and accordingly assessed the damages in the manner complained of in case and for the supposed benefit of the Company ; and further, that it was competent to them so to do. The motives of the arbitrators, whatever they may have been, can- not validate their act if that were ultra vires. And the first observation which their Lordships have to make is that, as they read the statute, it was not competent to the arbitrators to impose the payment of a rent or periodical sum at all. The word " rent," no doubt, occurs in several of the sub-sections of section 9 ; but their Lordships think that the use of that word is always to be explained by reference to the provisions contained in the sub-sections 3, 4, and 8, and that in every case, except those in which the parties expropriated fall within the description of " corporations or persons who cannot in common course of law sell or alienate the lands set out and ascertained," it is the duty of the arbitrators to fix as compensation, such a gross sum or sums as would ba capable of being paid or tendered at once to the parties entitled to the same under the 27th sub-section, or into Court under the 34th sub-section, of the 9th section of the Act, in order to entitle the Company to possession under the 27th, or to a confirmation of title under the 34th and 35th sub-sections. It appears, moreover, to their lordships, that even if a rentcharge could be given by fvay of compensation in circumstances PRIVY COUNCIL SIT like these to the expropriated parties, it has not been done in this case ; Bourgouln that the monthly sum awarded is not in any sense of the term, a rent ; * that it is more in the nature of an assessment of damages payable in futuro, and does not in any point of view fall within the provisions of the Act. A further objection to this part of the award is, that it makes the monthly payment contingent on the completion and erection of certain works, and thus introduces an element of uncertainty which would of itself be a fatal objection to the award. That it is open to the objection of uncertainty is shown by the observations which have been quoted from the judgment of Mr. Justice Tessier, who decided in favour of the appellants. The learned Judge, p. 403, line 20, assumes that if the culvert is not constructed the annual sum will continue to be payable, not only to the appellants and their assigns, but to the reversioner, Mrs. Smith. The learned Counsel for the appellants repudiated that construction ; but the fact that it was put by the learned Judge upon the document goes to prove that there is some degree of uncertainty in the award. Again, the duration of the appellant's interest is uncertain, in that they held their lease with the power of renewing it so long as any stone remained to be worked, They might thus prolong the time during which the monthly sum would be payable, by omitting to work the stone, although no doubt the Company would have the power to put an end to their liability by doing the works prescribed. Lastly, there seems to their lordships to be a fatal objection to the award in the direction to the Company to restore the water course in a particular manner, and that by the construction of a culvert. They conceive that it was not within the functions of the arbitrators to pres- cribe how the company was to relieve itself from the statutory obliga^ tion imposed upon it by the 6th sub-section of the ,7th section, or to cast upon them the construction of a culvert which possibly might not not be necessary. It is right now to notice shortly certain authorities which have been invoked in the course of the arguments at the bar. The Chief Justice referred to four cases reported in the 12th Queen's Bench reports, Upper Canada, as supporting his judgment, whereas the learned counsel for the appellants has treated them as authorities in his favour. If those decisions are opposed to the decision of the Court of Queen's Bench of Quebec in this case, that would only show that there is a conflict of authority between the highest courts of the two provinces, and that it is for their lordships to decide between them. But their lordships think that in truth there is no conflict at all, and that the cases in question do go to support the judgment of the Chief Justice in this case. It is to be observed that in all four cases the award was set aside. There is, there- fore, no affirmative decision that a clause of this kind in award is good. The only pasage in the judgments in question which seems to their lord- 878 PRIVY COUNCIL Bourgouin ®^'P^ capable of being treated as in favour of the appellants is that at * page 114 of the volume, in the case of the ffrea< Western Company vs- Baby, Chief Justice Eobinson there says : — " The second and third objections seem also to have been satisfac- torily answered. It is not the devisees who are moving against the award, on the ground that some things are directed in their favour which cannot be enforced against the Company ; it is the Company who are complaining of the extravagance of the award. If they choose to object against the making and maintaining the tank spoken of, and to keeping open the Ferry street, and can successfully resist both or either of them, that would only show that, so lar as the amount of the award can have been influenced by assuming that those things were to be done, the devisees may have reason to complain that they have been deluded by promises of advantages which cannot be secured to them, and that the sum awarded as the value of their property should there- fore have been larger, as the cannot reckon upon enjoying these benefits, which the arbitrators may have taken into account as considerations in their favour, tending to diminish the sum to be awarded." He goes on to say, — " Besides, these are not things which the arbitrators have taken upon themselves to direct. They seem rather to have inserted them as being things understood between the parties, and which they had therefore taken into consideration in estimating the damages." Then, at page 121, after saying that the award must be annulled upon another ground, he says, — " But, to avoid occasion for question upon any future award, we would suggest that it should be clearly expressed, in the first place that the sum awarded is given for the value of the lands and tenements' or private privileges proposed to be purchased, or for the amount of damages which the claimant is entitled to receive in consequence of the intended railroad in and upon his lands (as the case may be), and that the award should either be silent in regard to any other matter on which the statute gives no authority to the arbitrators to give a direction, or that, if the estimate has been influenced by anything which the Com- pany has engaged to do in order to lessen the inconvenience, it should be plainly expressed that the Company have undertaken to do it, and the particular thing should be so defined as to leave no uncertainty, and no room for future litigation as to what is to be done or allowed by the Company, and at what particular part in their work and in what manner it is to be done." Therefore this judgment proceeded upon the fact that the Company had agreed and offered to do certain things, not that the arbitrators had imposed upon this Company the obligation to do them, and it points out that the award would be more correctly drawn if it had taken no notice at all of the works in question, or had stated that the Company PRIVY COUNCIL 8Y9 had voluntarily undertaken to pevform them. It gives no countenance Bonrgouia to the doctrine that it is competent to arbitrators to impose such an * obligation as of their own authority. °*^' Again, the case cited from Sirey's collection seems to be distinguish- able from the present in the manner in which Chief Justice Dorion has pointed out. There a gross sum was awarded, but that gross sum was made reducible if the Company should do something which, as in that Canadian case, they had undertaken to do. The case is certainly dis- tinguishable from the present, both because the compensation awarded was one sum payable at once, and because the Company had under- taken to do the works in question. Several other French decisions have been cited by Mr. Justice Tessier in support of his view of this award but it appears to their lordships impossible to reconcile the broed prin. ciple which he seems to deduce from them, viz., that objections of this kind can only be taken by the person expropriated, and not by the body that expropriates, with the Eailway Act of 1868 and its provisions. Their lordships think that this case ought to be decided upon Cana- dian legislation and upon Canadian jurisprudence. For that reason they do not notice the case from the Isle of Man, which was cited by Mr, Benjamin. The only remaining question to be considered is one which was suggested in the course of the argument, viz., whether the objectionable part of the award is severable from that which awards to the appellant the sum of $35,013, so that the appellant may recover that, waiving their right to the rest of the compensation awarded. The point was never taken in the Canadian Courts, no offer of waiver was made there, and it may be questionable whether that point can now, for the first time, be raised here. Assuming, however, that it is open to the appellants, their lordships are of opinion that the award is not severable in the manner suggested, the compensation improperly awarded being com- bined as it is with that which was properly awarded, and both declared to be " le montant de la compensation a etre payee, pour le dit morceau " de terre, et pour tous les dommages resultant de la possession d'ice- " lui." And if they were severed a question might arise, as Mr. Benjamin has argued, whether the award would not be defective in that it failed to deal fully with one of the questions submitted to the arbitrators, viz., the amount of compensation due to the appellants under the fourth head of their claim. This being their lordships' view, they think that the decision of the Court of Queen's Bench, which annulled and set aside the award as in- valid on the face of it, is correct. They have come to that conclusion with considerable regret, because they feel that the appellants were en- titled to a fair compensation for the expropriation of their quarry, and that now. after a vast amount of expensive litigation, they are as far as ever from receiving that compensation. Their lordships do not say that 880 PRIVY COUNCIL „ . the fault is wholly that of the Company or wholly that of the appellants ; &• but the lamentable result remains, and they can only express their hope that in some way or another means will be found to give the appellants a fair compensation for the expropriation of their quarry, and for the damages which they have sustained thereby. Their lordships, however, can but decide this question on its legal merits, and they feel that it is of great importance that arbitrators, with the large power given to them by " The Railway Act, 1868," should be kept within the limits of their authority. The conclusion to which their lordships have come seems to dispose, not only of the first appeal, but of most of the other questions raised on the record. The judgment of their Lordships, which was delivered on the 14th instant, and ruled that the award of the 28th of July, 1876, was bad on the face of it, disposed, except as to costs, of the appeals numbered 13 and 144 respectively, and of all the questions on this record between the appellants and the respondent Company. It seemed, moreover, to leave to the appellants no substantial in terest, other than costs, in the rest of the litigation. Their Counsel, however, expressed a desire to argue the remaining appeals (Nos. 117 and 141), and satisfied their Lordships that they were entitled to do so. Those appeals have accordingly been heard, and their Lordships have now to give judgment upon them. In order to see clearly what are the questions raised by them, it is necessary to refer shortly. to some of the proceedings in the two actions numbered respectively iu the Superior Court 693 and 1 ,213. In the latter of these, which was brought by the appellants against the Company in December, 1874, in order to recover the amount due on the award, the respondent, the Attorney General, intervened in the month of February, 1878. The cause was heard on the 18th of April, 1 878, by Mr. Justice Maokay in the Superior Court against both the Company, the defendants, and the Attorney General as intervener, and the Judgment of that Court dismissed the intervention, and condemned the Company to pay to the appellants the amount due on the award. From this judgment the Company and the Attorney General appealed separately. The Court of Queen's Bench reversed the judgment of the Superior Court against the Company, and the appeal of the appellants against so much of their judgment (No. 144) has already been disposed of The appeal of the Attorney General was also allowed, and the judg- ment of the Superior Court reversed as against him, but on the ground that the intervention, though legally competent, was unnecessary, with- out costs. Hence the appeal No. 117. Again, the Superior Court, by its judgment in Suit No. 693, wherein the Company sued to set aside the award, dismissed that suit with costs. The Company appealed against that judgment, and has succeeded both, PRIVY COUNCIL 881 in the Court of Queen's Bench and here in setting it reversed. The date, „ r ° ° f ' Bourgouin however, of the judgment of the Superior Court was the 30th of April, & 1877 ; the appeal against it was not lodged until the 5th of October fol- lowing, and intermediately, i. e., on the 22nd May in that year, the appellants issued a writ of execution for their costs, under which the sheriff seized certain lands, rolling stock, and other property as belong- ing to the Company. On the 17th January, 1878, the Attorney General filed " an opposition a fin de distraire," by which he claimed the whole of the property seized as the property of the Queen for the use of the Pro- vince of Quebec. The appellants filed their contestation, and on the SlstMay, 1878, Mr. Justice Johnson pronounced the judgment of the Superior Court, which upheld the opposition ; declared that all the lands seized were the property of Her Majesty for the use of the Pro- vince of Quebec ; that accordingly the seizure of the lands, immoveables and acce-sories in question was null, void, and illegal, and granted main levee thereof to the opposant, with cost against the contestants, the present appellants. That judgment was, on appeal, confirmed by the Court of Queen's Bench, and hence the appeal No. 141. The determination of both these appeals mainly depend on the effect to be given to the transaction between the Company and the Government of Quebec which is embodied in the Notarial Act or Deed of the 16th of November, 1875, and in Act 39 Vict., c. 2 of the Legisla- ture of Quebec. The parties to the Deed are stated to be Her Majesty the Queen, represented by the Secretary of the Province of Quebec, " acting as well for and on behalf of Her Majesty as for and on behalf " of the Province of Quebec, party hereto of the first part, hereinafter "called 'the Government,' and the Montreal, Ottawa, and Western '" Eailway Company, described as a body politic and corporate, duly " incorporated by statutes of the Province of Quebec and of the Domi- " nion of Canada, &c., party hereto of the second pb,rt, hereinafter called " ' the Company.' '" The deed, after reciting the nature of the enter- prise and the commencement of the work, and that the Company was then unable to proceed further with the construction of the railway by reason of certain bonds not being negotiated ; and that the Government was willing to assume and complete the construction of the said railway upon such terms and conditions, and in such manner and within such time as the Government might deem expedient, and for that purpose to acquire from the said Company all its rights and assets, and to take upon itself the legitimate liabilities of the Company, and to repay the disbursements of the Company in manner and form and to the extent thereinafter described ; and that in consideration thereof the Company had agreed to transfer and convey such rights and assets to the Govern- ment also upon the conditions thereinafter expressed — proceed to state, in different clauses, the covenants and agreements into which the par- ties had entered before the notary. The material clauses are the 1st, 2nd, 4th, 7th, 8th, and 9th. 882 PRIVY COUNCIL Bour^oniri ^^ ^^^ ■'**' ^^® Company granted, sold, and conveyed to the Goveni- & ment all its right, title, and interest in the uncompleted railway, with all lands acquired or bonded for right of way, stations, and other pur- poses, all bridges, piers, abutments, forms, and other things expressly mentioned, stating their intention to be " to divest the Company of all " the property of tlie said corporation, and of all and every pait and " parcel of the said incomplete railway, and of everything appertaining '' thereto or necessary or useful or acquired for the construction thereof, '•' now in the possession of the Company, or to which it is entitled, as " fully and completely to all intents and purposes as the same are now " held by the Company, and to vest the same in the Government." By the 2nd, the Company transferred to the Government all its right, title, and interest in and to the balance of the subscription of stock in the said Company by the Corporation of the city of Montreal, and the several subscriptions of stock in the said Company of various other corporations, together with all the rights, claims, and demands of the said Company upon the said city of Montreal for the sai'l balance of subscriptions, and upon the said other corporations for their said sub- scriptions of stock and bonus. By the 4th, the Government, in consideration of the above sales and transfers, agreed to pay to certain trustees for the Company, upon the confiimation of the df ed, the sum of $57,149.95 currency, being the amount of the then paid up capital of the Company; and also to pay immediately all such disbursements and liabilities as had been adjusted between the Government anc the Company ; and it was f irther agreed that if any further legitimate liabilities should be established to the satisfaction of the Government to be justly and legally due by the Com- pany, the same should also be assumed and paid by the Government. By the 7th, it was provided that, until it should please the Govern- ment to receive pussession of the property and premises thereby tran^' ferred, the Company should hold and administer the same for and on behalf of the Government, and in such manner as should be directed by it, and should, in all respects, carry out the instructions of the Govern- ment in respect of the said railway : and in respect of every matter and thing connected therewith, until the transfer and delivery thereof to the Government and its complete assumption and possession thereof had beed perfected : and that, so soon as such transfer and delivery should have been so perfected, the Company should dissolve itself, and should cease to act in any way, the Government thereupon indicating some person to accept transfers of the shares of the Company held by the individual shareholders therein. By the 8th, the Company undertook to assist the Government, in any manner that might be required, in procuring the passage of any Act by the Dominion or the Provincial Parliament that the Government might deem expedient to have passed in the interest of the enterprise, and to furn-sh aid and assistance in other matters. PRIVY COUNCIL 883 And, by the 9th, it was provided that the deed should have no force Bourgouln or effect after the termination of the next Session of the Legislature of * the Province of Quebec, unless confirmed by the said Legislature at the next Session thereof, nor until such confirmation ; but that it should be submitted for such confirmation to the next Session of the said Legislature, and, immediately upon such confirmation, should have full force and effect according to its terms. The confirmation required by this last clause of the deed was given by the Act 39 Vict , c. 2, which was passed by the Legislature of Quebec on the 24th December, 1875. That Statute not only, by its 8th Section, confirmed in the fullest manner the transfer and assignment of the 2nd November, 1875, it did a great deal more : it combined the enterprise of the Montreal, Ottawa, and Western Eailway Company with that of an- other Company called the North Shore Railway Company, which had made a similar transfer in favour of the Government of Quebec ; it gave to the railway to be completed the new name of " The Quebec, Mon- treal and Occidental Eailway" ; it declared that railway to be a public work belonging to the province of Quebec, held to and for the public uses of the province, and provided for the mode of its construction ; it vested the construction and management of that railway in certain Com- missioners with ample and defined powers ; by Section II it made the provisions of the Quebec Railway Act, 1869, so far as they were appli- cable to the undertaking and not inconsistent with the provisions of that Act, applicable to the said railway, and empowered the Commis- sioners, in cases where proceedings had been commenced by the Mon- treal, Ottawa and Western Railway for the expropriation and acquisition of lands for the purposes of that railway and ha 1 not been completed, to continue such proceedings under the provisions of the Quebec Rail- way Act, but with the consent of the proprietor of such lands, or to dis- continue such proceedings, and commence proceedings de novo under the said Quebec Railway Act, and by Section 24 it reunited lands which had been granted to the Montreal, Ottawa, and Western Eailway Com- pany, te the public lands of the province. Sections 43, 44, 45, and 46 have even a more direct bearing upon the questions raised by the two appeals now under consideration. Section 43, in order •' to avoid all doubts, " enacts that the Quebec, Montreal, and Occidental Railway is thereby invested with all the rights, powers, immunities, franchises, pri- vileges, or assets granted by the Legislature of the Province of Quebec to the Montreal Northern Colonization Railway Company, and, so far as that. Legislature could do, with all the rights, powers, immunities, fran- chises, privileges, and assets granted by the Parliament of the Dominion of Canada to the Montreal, Ottawa, and Western Railway Company. Section 44 takes away the power of the last mentioned Company to appoint Directors, and abolished the Directorate contemplated by the former Statutes. Section 45 transfers to the Commissioners the rights 884 PRivr COUNCIL Boureouin °^ ^^^ individual shareholders in the Montreal, Ottawa, and Western & Railway Company, providing that their paid-up stock shall be'refunded to them ; and Section 46 authorizes the Commissioners, with the consent of the Lieutenant Governor in Council to apply to the Parliament of Canada for any legislation which may be deemed necessary for the pur- pose of the Act. The combined effect, therefore, of the deed and of this Statute, if the transaction was valid, was to transfer a federal railway, with all its appurtenances, and all the property, liabilities, rights, and powers of the existing Company, to the Quebec Government, and, through it, to a Company with a new title and a different organization ; to dissolve the old federal Company, and to substitute for it one which was to be governed by, and subject to, provincial legislation. It is contended on the part of the appellants that this transaction was invalid, and altogether inoperative to affect the obligations of the Company. They insist that, by the general law and by reason of the special legislation whicli governed it, the Company was incompetent thus to dissolve itself, to abandon its undertaking, and to transfer that, and its own property, liabilities, powers, and rights to another body, without the sanction of an Act of a competent Legislature ; and, further, that the Legislature of Quebec was incompetent to give such sanction. This contention appears to their Lordships to be well founded. That such a transfer, except under the authority of an Act of Par- liament, would in this country be held to be ultra vires of a Railway Company, appears from the judgment of Lord Cairns in re Gardner v. London, Dover, and Chatham Railway Company, 2 Chancery Appeals, 201 and 212. That it is equally repugnant to the law of the Province of Quebec, so far as that is to be gathered from the Civil Code, is shown by the 369th Article of that Code. Rut the strongest ground in favour of the appellants' contention is to be found in the special legislation ' touching this Railway Company. The history of the Company and of its conversion from a provincial into a federal Railway Company has been stated in the judgment Hlready delivered. By Section 1 of the Canadian Statute 36 Vict., c. 82, which effected that conversion, the railway was declared be a work for the general advantage of Canada. By the 5tli Section of the same Statute, it was enacted that the continuations of the line thereby authorized should be deemed to be railways or a railway to be constructed under the authority of a special Act pa-sed by the Par- liament of Canada, and that the Company should be deemed to be a Company incorporated for the construction and working of such railways and railway, according to the true latent and meaning of " The Railway Act, 1868 " (the Dominion Statute). By the 6th Section, Parts 1st and 2ndof "The Railway Act, 1868 " (which comprise all the general and material provisions of that Statute), were made applicable to the whole PRIVY COUNCIL 885 line of the railway, whether within or beyond the enterprise originally _ contemplated ; and it was enacted that no part of " The Quebec Rail- * way Act, 1869," should apply to the said railway, or any part thereof, or to the said Company. And by the 7th Section it was provided that the two Acts of the Quebec Legislature (32 Vict., c. 35, and 34 Vict., o. 28|, by which the Company had been incorporated and previously governed, should be read and construed and have effect as if the changes of expression therein mentioned (thb effect of which would be to make them speak as Acts of the Canadian Parliament) had been made in them ; that so read and construed and taking effect, they should be deemed to be special Acts according to the true intent and meaning of " The Railway Act, 1868," and that no part of " The Quebec Railway Act, 1869," should be incorporated with the said special Acts, or either of them, or form part thereof, or be construed therewith as forming one Act. These provisions, taken in connection with and read by the light of those of the Imperial Statute, " the British North American Act, 1867," which are contained in Section 91, and Sub-section 10 c of Section 92, establish, to their Lordships' satisfaction, that the transaction between the Company and the Government of Quebec could not be validated to all intents and purposes by an Act of the provincial Legislature, but that an Act of the Parliament of Canada was essential in or order to give it full force and effect. This proposition was, finally, hardly dispu- ted by the learned Counsel for the respondent, but they relied upon the 8th clause of tjhe deed, and the 46th Section of the Quebec Act, as showing that recourse to the Parliament of Canada for its sanction was within the contemplation of the parties, and contended that, before that sanction was obtained, the transaction was valid for some purposes, and gave certain inchoate rights which were capable of being asserted. In support of their argument they cited The Great Western Railway Company v. The Birmingham and Oxford Junction Railway, 2 Phill. 597, and what was said by Lord Cottenham in that case. It is to be observed, however, that Lord Cottenham, when ruling that the contract, which could not be fully carried out without Parliamentary sanction, was not, in the absence of such sanction, to be treated as a nullity, and that some of its provisions might neverteless be binding, was dealing with the rights of the parties to the contract inter se. Here the public, and the creditors of the Company, in which category the appellants fell since the questions raised by these two appeals must be considered as if the award were valid, were no parties to the transaction, and could not be affected by it until it was fully validated by an Act of the Parlia- ment of Canada, to obtain which no attempt seems ever to have been made. In their Lordships' opinion, therefore, the tracsaotion, consider- ed as a whole, was of no force or validity as against the rights of the appellants when the decisions of the Canadian Courts upon the inter- vention and the opposition were passed. Ross, 886 PBtVY COUNCIL _ j This being their Lordsliips' conclusion they proceed to consider how & it affects the two appeals, and first that which relates to the Attorney General's intervention. Now, if it be admitted, for the sake of argu- ment, though their 1 ordships must not be taken to affirm the proposi- tion, that the Attorney General had such an inchoate right under the transaction as would have justified his intervention had there been reason to suppose that the expiring Company would fail to make a sub- stantial defence to the action No. 1,213, it is to be observed that that was not the actual state of things. The action itself was not commenced until December, 1876, and the defences of the Company were filed on the 30th of that month. The transaction between the Company and the Quebec Government was completed, so far as it was completed, in December, 1875. It is, therefore, obvious, that, in the first instance, the Quebec Government intended to defend the action, in the name of the Company; under the provisions of the deed. All objections which the Company could take to the award, and in particular the one which has proved fatal to it, were taken in their defences. The interuention of the Attorney General was not until 1878, and the reasons filed by him on the 17th of September in that year are sufficient to show that object of the intervention was to raise objections to the validity of the award, founded upon the attempted transfer of 1875, which could not have been taken in the name of the Company. Those reasons, the con- festation of them, and the other pleadings show that the new issues raised between the parties were the validity of the transfers as against the appellants, the right of the Commissioners under the Quebec Act to continue or discontinue the proceedings in the expropriation, the aban- donment of the Railway, and its transformation into a new railway, to de constructed under different conditions. This intervention was only necessary for the trial of these fresh and additional issues ; and was, as the Court of Queen's Bench itself has found, wholly unnecessary for the trial of the original issues. Upon the trial of the action in the Superior Court, Mr. Justice Mackay expressly found " que les faits allegues dans " la dite intervention, savoir le transport des droits et actions de la dite " defenderesse au Gouvernement de la dite province de Quebec, n'a pas " ete prouve avoir lieu legalement," a finding in accordance with the conclusion to which their Lordships have come touching the transaction of 1875, and one which would justify the dismissal of the interventioii, even if the learned Judge have taken a view different from that which he did take of the validity of the award. The Attorney General had failed to show any grounds for inflicting upon the appellants the costs of unnecessary and expensive proceedings. In these circumstances, their Lordships are of opinion that the Court of Queen's Bench ought to have dismissed the appeal of the Attorney General, and to have afiirmed the judgment of the Superior Court, in so far as it related to the inter- vention, with costs. PRIYV COUNCIL 887 Their Lordships have now to consider Appeal No. 144, which arises Bnurgouiu out of the " opposition a fin de distraire." That opposition to the ex- * eoution could not succeed as to such of the lands seized as had belonged to the Company, unless it were established that the property in those lands had been changed by the attempted transfer of 1875. Their Lord- ships are of opinion that there was no such change of property. The transaction, viewed as a whole, and as one single contract, could not, for the reasons above stated, operate as a valid transfer of the lands of the Company to the Government of Quebec. Their Lordships feel bound to dissent from two propositions, on one of which the judgment of Mr- Justice Johnson, and on the other of which the judgment of Chief Justice Dorion, in part proceeds. Mr. Justice Johnson ruled that the contest- ants ought, if they questioned the validity of the transaction of 1875, to have concluded that it should be set aside or declared null, and that, by reason of their failure to do so, they must be taken to be bound by it. Chief Justice Dorion expressed an opinion that it was only at the instance of the Government of Canada (the Dominion), or of an indi- vidual who could show that he had a special interest distinct from that of the public, that the transfer could be set aside. These reasons are some what contradictory, and their Lordships cannot think that either affords a good ground for the judgment impeached. If the transaction, not having the sanction of the Parliament of Canada, were ultra vires of the Company and the Government and Legislature of Quebec, it was of no legal force or validity against the appellants, and might be so treated by them whether it were formally set aside or not. The other ground on which the judgment proceeds, and which has been chiefly insisted upon here, is more plausible. It is that the Company had power, under the second Sub-section of the 7th Section of " The Railway Act, 1868," to " alienate, sell, and dispose of its lands ; " that the trans- action of 1875, even if invalid as a whole, is severable, and that the Com pany must be taken to have sold by it their land to the Government of Quebec in the exercise of that power. Their Lordships cannot accede to this argument. It appears to them that the contract is not severable in the manner suggested. It is contract whereby, for the same consider- ation, everything which it purported to pass was intended to pass. Suppose what was suggested by Chief Justice Dorion were really to happen, that the Dominion Government were to take steps to set aside the transaction, could the Government of Quebec be heard to say, '' True, the transaction will not stand as a '' transfer of the railway, or of " the rights, powers, liabilities, and duties of the Company, but it may " enure as a sale of the lands acquired in order to the construction of " the railway, or part of them, in the exercise of the power in question." Would not the answer be, " There is no trace of such a contract, or of an " intention to make it ? " By the evidence taken on this proceeding, it appeared that a con- ooa PRIVY COUNCIL Bourgouin siderable part of the lands, rolling stock, and other property seized, had * never belonged to the Company, but had been purchased by the Com- missioners since 1875. In respect of that property, the Attorney General was entitled to succeed in his opposition. He should, however, have been held to have failed as to the lands, " ^^&n the said Cades, or either of them, are Motson. " °°™Pleted, with such amendments as last mentioned, printed copies " thereof, and of the reports of the commissioners, and of the judges if " any, shall be laid before the Legislature, in order that such Code or •'' Codes may be made law by enactment ; and if it be found advisable " that either of the said Codes be completed and submitted to the " Legislature before the other, the Civil Code of Lower Canada shall be " the first so completed and submitted. " 2. Either House may propose any amendments to either Code " but such amendments shall be proposed by resolutions, which may be " passed by the one House and sent to the other for its occurence and " shall be subject to amendment by the other, and be dealt with as a " Bill might be until finally agreed to by both Houses, and shall then be " communicated to the commissioners, who shall with all possible des- " patch incorporate the substance of the amendments so agreed to with " the proper Code, which may then be passed as a Bill at the same or " any other session.'' The Civil Code was the first completed and submitted to the Legis- lature, and it was amended by resolutions agreed to by botli houses, but the Legislature did not quite pursue the course indicated by the latter part of sect. 14, sub-sect. 2. By 29 Vict., c. 41, sect. 2, the commissioners were directed to incorporate the amendments with the Civil Code, adapting their form and language (when necessary) to those of the said Code, but without changing their effect, inserting them in their proper places, and striking out of the said Code any part thereof inconsistent with the said amendments. Power was also given to the Grovernor to select any Acts and parts < of Acts passed during the last and present sessions, and cause them to be incorporated. And power was given to the commissioners to make verbal and formal amendments, and so soon as the said work of incor- poration was completed the amended Code was to be submitted to the Governor, who may cause a correct printed copy thereof, attested by his signature and that of the Provincial Secretary, to be deposited in the oflice of the clerk of the Legislative Council. Then by sect. 6. " The Governor in Council may after such deposit " of the roll last mentioned, declare by proclamartion the day on and " after which the said Code, as contained in the said roll, shall come " into force and have effect as law, by the designation of ' the Civil Code " of Lower Canada,' and upon, from, and after such day the said code " shall be in force accordingly.'' The Governor in Council, by proclama- tion, named the 1st August, 1866, as that day. A precisely similar course was taken as to the Code of Civil Proce- dure of Lower Canada, the Statute 29 & 30 Vict., c. 25, being in the same words as those of 29 Vict., c. 41, except that (Code of Civil Peooe- dure of Lower Canada) is throughout substituted for (Civil Code of PRIVY COUNCIL 891 Lower Canada.) The day fixed by the proclamation for this Code coming carter into force is the 28th day of June, 1867. & . So that there was a period of nearly ten months, during which the Civil Code was in force, before the Civil Code of Procedure came into force. It seems implied in that part of the judgment which states " that there are express provisions " in the Code of Procedure as to those matters," and that " the provisions of Sects. 12 and 18 of the Consoli- dated Statutes and " Art. 2274 of the Civil Code have thereby been '■repealed under Sect. 1360 of the Code of Civil Procedure,'' that the majority of the Court of Queen's Bench put the construction on Art. 1360 of the Code of Civil Procedure, that it repealed not only all laws in force before the passing of either code, but also all parts of the Civil Code which touched procedure. The literal meaning of the words " laws in force at the time of the " coming into force of this code" includes the Civil Code, for, as already pointed out, the Civil Code came into force some months before the Code of Civil Procedure did ; but their Lordships are scarcely prepared to hold that the intention and object of the Legislature was that when a matter is included in the Civil Code which might without impropriety have been included in the Code of Procedure, and an express provision is made in the Code of Procedure upon that particular matter, the pro- visions of the Civil Code are abrogated as being laws concerning proce- dure in force at the time when the Code of Procedure came into force. The two subjects from their nature overlap, and in the Code Civil of France, as well as in the Canadian Codes, much which might well be put into the one code is placed in the other. There seems nothing to pre- vent laws in both cod es relating to the same subject from standing to- gether, unless they are from their nature so inconsistent that the later enactment must be taken to repeal the earlier. The 20th title of the Canadian Civil Code, relating to imprisonment in civil cases, is one which might have been placed under the head of procedure ; and so might the 16th title of the French Code Civil, en. titled, " De la Contrainte par Corps en Matiere Civile," have been placed in the " Code de Procedure Civile." But neither in the Canadian Codes nor in the Frence Code has this been done. The general intention and object of the Legislature seems to have been that the two codes should stand together, and be construed toge- ther, and it may well be doubted whether the majority of the Queen's Bench have not given too much effect to the accident that the codes did not come into force on the same day. It is not, however, necessary to decide this, as, by a different chain of reasoning the same result may be come to. The preamble to the Statute 20 Vict., c. 43, which afterward became the Consolidated Statutes, chap. 2, is this :— 892 PRIVY corNciL Carter " Whereas the laws of Lower Canada in civil matters are mainly & those which at the time of the cession of the country to the British Crown were in force in that part of France then governed by the custom of Paris, modified by provincial statutes, or by the introduction of por- tions of the law of England in peculiar oases ; and it therefore happens that the great body of the laws in that division of the province exist only in a language which is not the mother tongue of the inhabitants thereof of British origin, while other portions are not to be found in the mother tongue of those of French origin. And whereas the laws and customs in force in France at the period above mentioned have there been altered and reduced to one general code, so that the old laws still in force in Lower Canada are no longer reprinted or commented on in France, and it is becoming more and more difficult to obtain copies of them, or of the commentaries upon them. And wheas the reasons afore- said and the great advantages which have resulted from codification, as well in France as in the State of Louisiana, and other places, render it manifestly expedient to provide for the codification of the civil laws of Lower Canada." From this preamble and the whole scheme of the legislation, their Lordships think that it was one main object of the Legislature to make the codes as one may say self-contained. This object, however, has been apparently lost sight of in several places, and, amongst others, in the Art. 2274 of the Civil Code, which is in the following words : — " Any debtor imprisoned or held to bail in a cause wherein judg- ment for a sum of 80 dollars or upwards IS rendered, is obliged to make a statement under oath, and a declaration of abandonment of all his property for the benefit of his creditors, according to the rules and sub- ject to the penalty of imprisonment in certain cases, provided in chap. 87 of of the Consolidated Statutes for Lower Canada, and in the manner and form specified in the Code of Civil Procedure." This cannot be understood, without reading and construing the statute referred to in order to see what rules and what penalties of im- prisonment were provided by the statute, and then determining which of them were kept alive by this Article ; for, though this Article does contain an express provision on at least part of chap. 87, and so by Art 2613 and 2614 of the Civil Code does abrogate at least so much of chap. 87, yet it seems impossible to deny that the Legislature did intend, at all events until the Code of Civil Procedure should come into force, to re-enact by reference to the abrogated statute some penalties, and apply them to the things specified in Art. 2274. And there is great difficulty m doing this. For though chap. 87, s. 12 (1) does, in certain cases in- cluded in Art. 2274, but not quite coextensive with it, require a debtor against whom judgment for 80 dollars or upwards has been rendered to file a statement of his property and creditors, and a declaration of his willingness to abandon the property in his statement mentioned to his PRIVY COUNCIL 893 .creditors, and by sect. 12 (2) does impose penalties on a defendant ne carter glecting to file such statement, yet there are no penalties coextensive * with Art. 2274, and there certainly are many penalties which, by chap. 87, s. 18, are imposed upon debtors who have not been arrested, against whom a judgment has gone in a commercial cause, which cannot on any construction be kept alive by Art. 2274. Those difficulties are all remo- ved if Art. 2274 is read as meaning " according to the rules and subject " to the penalty provided in certain cases in chap. 87, until the Code of " Civil Procedure comes into force, and then in the manner and form " specified in the Code of Civil Procedure." It is not to be denied that this is introducing words not to be found in the enactment, and so far is objectionable. But their Lordships think that Art. 2274 of the Civil Code shows an intention on its face to hand over the whole of its |ubject matter to be dealt with by the provisions of the Civil Code of Procedure, or if that intention cannot be found on its face, then that the law contained in that enactment is ' doubtful and ambiguous,' and though not without some doubt and difficulty, they think that the object and intention of the Legislature is such as to jus- tify this construction. If it is adopted all difficulty vanishes. The articles of the Code of Civil Procedure do impose many penalties, but they do not impose the penalty of imprisonment for a year on the person refusing to perform that duty which he is by the express terms of Art. 766 bound to per- form. The question how he is to be compelled to do so does not arise on this appeal. It is enough to say that he is not liable to imprisonment for a year. Their Lordships think that the appeal must be dismissed. They will so humbly advise Her Majesty. The appellant must pay the costs of this appeal. Appeal dismissed, (s. B.) 894 PRIVY COUNCIL Carter PRIVY COUNCIL. Molson. London, July 4, 1885. Coram : Lord Watson, Sir Barnes Peacock, Sik Richard Couch, Sir Arthur Hobhouse. CARTER V. MOLSON.— HOLMES u. CARTER. Per Curiam. On the 9th of February 1875, John Thorold Carter advanced $30,000 upon a mortgage, by which the borrower, Alexander Molson, became bound to repay that sum in six years, and also to pay intrest, half yearly, at the rate of 7^ per cent per annum ; and, in secu- rity for the due payment of principal and interest, mortgaged and hypo- thecated a lot of ground and a tenement erected thereon, situated in St. James Street, Montreal. Thereafter, on the 17th of April 1877, in con- sequence of default in payment of interest, Carter recovered judgment in the Court of Queen's Bench against Molson, founded on his personal convenant in the deed of mortgage, for $31,125 being the amount .of principal and interest due at 1st January 1877. In virtue of that judg- ment. Carter proceeded to attach, by writ of Saisie-arret, the rents of the mortgaged property in St. James Street, which had been let to one Allan Freeman, and also the divividends which had accrued or might accrue upon 148 shares of the stock of Molsons bank, which stood in the books of the bank, in the name of "Alexander Molson, "intrust for Eliza A. Molson et al." The right of his creditor to attach these rents and dividends was contested by Alexander Molson, upon the allegation that the St. James Street property, as well as the bank stock, formed part of his one-fifth share of the residue of the estate ot his late father, John Molson ; that, by the will of the deceased, his right to both was grevi de substitutions, in favour of his wife and family, and his usufruct was expressly declared to be legs d'aliment, and not arrestable for his debts. In the course of the litigation which followed, two separate petitions were presented for leave to intervene, the one by Eliza Ann Holmes, wife of the debtor, in her own right, and the other by the same lady as tutrix ad hoc to their minor children, along with their daughter Elizabeth, who had attained majority In the Superior Court, Mr. Justice Papineau, upon the 30th June 1881, rejected the contestation of the judgment debtor, with costs, and sustained the right of the arresting creditor, both as to rents and divi- dends . and, at the same time, in both applications for intervention, the learned Judge decided, with costs, against the petitioners. The Court of Queen's Bench, upon the appeal of Alexander Molson, by their judg- ment rendered on the 24th March 1883, in substance affirmed the deci- sion of Mr. Justice Papineau, so far as concerned the dividends, which they to have been validly arrested in the hands of the bank ; but PKIVY COUNCIL 895 reversed his decision, in so far as it related to the rents of the St. James carter Street property, and quashed the attachment made in the hands of * Allan Freeman. The debtor was condemned to pay to the arresting creditor the costs of the contestation with regard to the bank dividends in the Court below ; whilst the creditor was condemned to pay to his debtor the costs of the contestation in the Court below with regard to renijs, as well as the costs of the Appeal. By a separate judgment of the 24th March 1883, the Court of Queen's Bench, in the appeals taken by the intervening petitioners, rejected their contestation, and con- firmed the decision of Mr. Justice Papineau, with costs. Against these judgments four separate appeals have been presented to Her Majesty in Council. Mr. Carter complains of the decision of the Queen's Bench, in so far as it reverses the judgment of the Superior Court and quashes his arrestment of the rests of the St. James Street property ; Alexander Molson complains of decisions of the Court below sustaining the writ of Saisie-arret as regards dividends arising upon the 148 bank shares ; and the intervening petitioners complain of the decision by which their respective contestations have been rejected. These appeals have been consolidated, and heard as one cause, but must now be separately disposed of, inasmuch as they do not depend upon the same considerations either of fact or law. To begin with the rents of the St. James Street property. It was argued for the appellant Carter that theie has been no deed or docu- ment registered which constitute a legal act of substitution, or, in other works, discloses the fact that the title of his debtor to that property is herived by testamentary gift from his father, the late John Molson, and is therefore aifected by the conditions and limitations aj^pearing in the will of the deceased. It was said that, ex /acie of the register, the pro- perty is vested in Alexander Molson, not as a legatee, but as a pur- chaser for value from the administrators of his father's will ; and, con- sequently, that the appellant, an onerous creditor who advanced his money on the faith of the register, is not affected by the latent con. ditions of the will. It was also maintained for this appellant that, inas- much as, by the deed of mortgage of February 1875, Alexander Molsoa declared tnat the property well and truly belonged to him, he is now estopped from alleging, in this suit, that it is in really held by him as an integral part of his share of his father's succession. In the argument addressed to their Lordships from both sides of the bar, it was conceded that the substitution impo.=ed by the 13th article of John Molson's will upon the share of Alexander Molson, in favour of his widow and issue, cannot receive effect against a creditor in the position of the appellant unless the substitution be duly registered (C. C, Sects. 938), so as to give him due notice of the interests of the substitutes. Mr. Justice Papineau decided this branch of the case against the judgment debtor, upon the assumption that the will of 896 PRIVY COUNCIL Carter John Molson had not been registered. That assumption seems to have * been based upon a somewhat strict and technical interpretation of an answer made for Alexander Molson to the 13th interrogatory contained in the articulation of facts filed for the appellant on the 16th March 1879. There is ample evidence to show that the will was, in point of fact, duly registered in November 1860 ; and having regard to the very inartificial and ambiguous character of the interrogatory in question their Lordships do not hesitate to agree with the Court of Queen's Bench in holding that the registration of the will has been sufficiently established. In February 1875, when the appellant lent his money to Alexander Molson, there were already two deeds on the register, evidencing the title by which the borrower held the St. James Street property. The one of these was the will of John Molson already referred to, and the other was a deed, dated the 15th June 1871, and registered the 11th June 1872, by which William Molson, and the judgment debtor Alex- ander Molson, as acting executors and trustees under the will, sold, assigned, and transferred that property to the said Alexander Molson. It does not appear to their Lordships to admit of dispute that all persons who transacted with Alexander Moison on the faith of his being the owner of the St. James Street property were bound to infonn themselves of, and must be held to have known, the tenor of these two deeds, because the deed of 15th June 1871 constituted Alexander Molson's immediate and only title to the property, and it sets forth, in gremio, that his authors held the property under the trusts of John ' Molson's will, and had transferred it to Alexander Molson by virtue of a power of sale said to be contained in the will. Accordingly, if it be the case (as the Court of Queen's Bench have held), that the deed of June 1871, though professing to give effect to a transaction of sale, was in reality a conveyance to Alexander Molson of that which had been allot' ted to him as part of his fifth share of the residue of his father's estate, and that the terms of the registered deeds were sufficient to notify that fact to the appellant, or to put him upon his inquiry in regard to it, it seems to follow that he cannot prevail in this appeal. In that case, the property would be identified, on the face of Alexander Molson's title, with his share of residue under his father's will ; and every person deal- ing with him on the faith of that title would either have the knowledge, or the means of informing himself, that the property, as part of that ^ share of residue, was grevi de substitutions, in favour of Alexander Mol- son's wife and children, and that his usufructuary interest was not arrestable. The evidence adduced in the Superior Court establishes, beyond all doubt, that there never was any contract, between Alexander Molson and the administrator of his father's will (of whom he was one), for the purchase and sale of the St. James Street property. The property PRIVY COUNCIL 89*7 was, no doubt, exposed to public auction, along with other heritable (barter subjects forming part of the residue, and the whole subjects so exposed & were knocked down to two gentlemen, other than Alexander Molson, who each represented beneficiaries entitled to one-fifth of residue. But these gentlemen were merely nominal purchasers. The auction sale was not resorted to for the purpose of selling and dividing the pro- ceeds, — the only purpose for which a sale was authorized by the will, — but for the purpose of ascertaining the value of the subjects exposed, in order to their partition among three of the five resi'iuary legatees. Accordingly these legatees, after the auction sale, at which Alexander Molson was not a buyer, agreed to devide the subjects which had been exposed, not according to the prices at which they had been knocked down, but according to an estimate based on an average of those prices. Upon that footing, the St. James Street property was allotted to Alex- ander Molson, as part of his share ; and there appears to be no ground whataver for supposing that the trustees of the will thereafter sold to him his allotted portion for the amount of the estimation, even if such a sale had been within their power, which it clearly was not. The deed of 15th June 1871 purports to be a conveyance of the pro- perty in question to Alexander Molson, in pursuance of a contract by which the trustees of his father's will had sold it to him for the amount at which its value was estimated for the purpose of partition, as already explained. In point of fact, the deed appears to have been framed by the grantors in flagrant disregard of their duty as trustees, and to have been a colourable and not very creditable device for giving Alexander Molson a larger interest in the property than he was entitled to, and for defeating the intentions of the testator with respect to substitutions and the iusaisissahiUM of his son's usufruct. Although that is proved, In the estimation of their Lordships, to have been the true nature of the deed of 15th June 1871, it does not follow that the conditions of John Molson's will could be held to affect the property in a question with any onerous creditor of Alexander Molson, to whom the deed itself gave no ; notice, and who had no knowledge otherwise of its real character. But the deed of June 1871 refers to, and by reference, incorporates certain deeds of transfer and agreement executed by the executors and trustees of the will of John Molson, for the purpose of vesting his share of residue in Alexander Molson, and one of these deeds, dated 15th June 1871^ appears to their Lordships to indicate very plainly that the St. James Street property had not been sold for the purpose of dividing the price, but had been allotted to Alexander Molson as part of the corpus of his share of residue. At all events, the terms of that deed, and its rela- tive schedules, appear to their Lordships to be quite sufficient to notify to any person dealing with Alexander Molson, on the faith of the deed dated 15th June 1871, and registered 11th June 1872, that the transac- tion which it professes to embody was, in reality, either a legal partition or an illegal sale. 898 PRIVY COUNCIL Carter -'■*' ^^) however, hardly necessary, for the purposes of this appeal, to Mofso determine what would have been the effect of these indications of the true character of the so-called deed of sale, derivable from its own terms, upon the rights of a creditor of Alexander Molson, who had no information, except that which he had obtained, or might have obtained, through the register. The appellant, Mr. Carter, does not occupy that position. His agent in negotiating and carrying through the loan trans- action of 9th February 1875, was the Hon. J. J. C. Abbott, who is proved to have been cognizant of the whole proceedings in the distribution of the residue of John Molson's estate, and to have taken an active part in advising and completing the arrangements by which his fifth share, including the St. James Street property, was transferred to Alexander Molson. The appellant is affected by the knowledge of the agent to- whom he contided the duty of attending to his interests, and that knowledge was amply sufficient to inform its possessor that the deed conveying the St James Street property to Alexander Molson, though professedly a deed of sale, was in substance and reality the transfer of an estate which had been specifically allotted to him as part of his share of residue. In these circumstances, their Lordships are of opinion that the appellant Carter must be treated as having full knowledge that the property was vested in his debtor, subject to all the conditions and limitations imposed by the will of John Molson. Next, as to the appeal of Alexander Molson with regard to bank dividends. The writ of Saisie-Arret has only been sustained, as an attachment of the dividends which may become payable to Alexander Molson in respect of the 148 shares in question. The sole ground upon which these dividends are said to be placoJ beyond the diligence of his creditors is, that the 148 shares either are, or represent, part of 6iO shares of the stock of Molson's Bank which werfe transferred to Alex- ander Molson, as integral portion of the fifth share of residue, settled upon him and his wife and family by his father's will. Their Lordships see no reason to differ from the law laid down by C. J. Dorion, to the effect that these dividends would be protected from arrestment by the 18th article of John Mo'son's will, if it were proved to be the fact that the 148 shares from part of the 640 originally transferred to Alexander Molson by the executors of the will, or, were purchased with the pro- ceeds of the^e original shares. Accordingly the only question requiring to be decided, in this appeal, is one of fact. Their Lordships are willing to assume (although it is unnecessary to decide) that the onus of proving ■ that these 148 shares neither are nor represent any part of the residue of John Molson's estate lies upon the arresting creditor. He has proved, by clear and satisfactory evidence, that, at and prior to the 12th May 1873, Alexander Molson had divested himself of the whole of the 640 shares which had been transfeired to him, in 1871, by his father's exe- cutors ; and that 11-5 of the 148 shares in question never belonged to his PRIVY COUNCIL 899 father's estate, having been vested in Alexander Molson before the „ residue was divided. That evidence, in the opinion of their Lordships, ' & not only establishes the right of Mr. Carter to attach the dividends aris- " ^°"' ingupon these 115 shares, but throws upon the appellant, Alexander Molson, the onus of showing that the remaining 33 shares were either part of or purchased with the proceeds of the 640 shares, neither of which facts has he made any attempt to prove. Then as to the appeals presented by the intervening petitioners. Both of these depend upon precisely the considerations, and may be disposed of as if they were one appeal. The petitioners have not, and do not assert that they have any direct or legal interest, either in the rents of the St. James Street property, or in the dividends on the 148 banli shares, which accrue and become payable to Alexander Molson during his lifetime. On the other hand, it is not disputed that they have material interests, entitling them to resist any attachment of the corpus of the property or of the shares, at the instance of a creditor of Alexander Molson, which might have the effect of defeating their right as substitutes, in the event of Alexander Molson's death. They do not, however, allege that the writ of saisie-arret will attach either the corpus of the 148 bank shares, or the dividends accruing upon them, after the death of Alexander Molson. All that they do allege is, that these shares as part of the residue of his Estate are subject to the sub- stitution in their favour contained in John Molson's will, and that the dividends payable to the institute are, in terms of that will, not arrestable. The only interest in respect of which their right to intervene in the present litigation is maintained, is the apprehension that some points may be incidentally decided, between the arresting creditor and Alexander Molson, which may prejudice their rights at some future time. It is not said that any judgment in this suit can possibly enable the creditor to attach the estates which they may eventually take, assuming the substitutions in their favour to be valid ; nor is it suggested that anything decided in this suit between the judg- ment debtor and creditor, with regard to the validity of these substi- tutions would be binding upon them as res judicata. What they do plead is that such a decision might afford an objectionable precedent, if and when they require to assert their rights judicially, and conse- quently, that they have the right to inteivene. That plea appears to their Lordships to be untenable. Section 154 of the Procedure Code, which regulates this matter, gives the right of intervention to the parties who are " interested in the event of a pending " suit." The event of the suit can only refer to the operative decree which may ultimately be given in favor of one or other of the parties to it, and not to the views of fact or law which may influence the Court in giving decree. To admit the appellant's plea would involve the admission of a right to intervene on the part of every person who had an interest in preventing a deci- 900 PRIVY COUNCIL Carter ^'"'^ being given inter alias, which might be cited as an authority against * him in some other suit. Section 154 appears to have been framed for the very purpose of limiting the right of intervention to those persons vpho can show that a final judgment may possibly be obtained in the suit, which will enable the party who obtains it to possess himself of their estate, or otherwise to impair their legal rights. Their Lordships are accordingly of opinion that the judgments appea.ed from ought to be affirmed, and they will humbly advise Her Majesty to that effect. There will be no order as to the costs of any of these appeals. Appeal dismissed. JUDICIAL COMMITTTEE OF THE PRIVY COUNCIL. delaOhe- London, Nov. 16, 1886. vrotifere * Before Loed Fitzgerald, Lord Hobhouse, Sir Barnes Peacock, Sie Montreal. Richard CocrcH. CHEVIGNY DE LA CHEVROTIEEE v. LA CITfi DE MONTKEAL. The action from which this appeal arises was commenced in the Superior Court of the province of Quebec, Lower Canada. The deman- dant, who is also the appellant, claimed to be proprietor of about seven-eighths of that part of the city of Montreal which from 1803 to January 1847 had been a public market, and from January 1847 to the present time has been an open public place in the city, known as the Place Jacques Cartier. The demandant claimed against the respondents, the city of Montreal, a right to resume possession of that j.iece of land as in the original ownership of the grantors. His money claim against the city amounted to 130,866 dollars. Further, he claimed that the original deed of grant of 29th December 180J should be brought in and declared null and void. The claim is said to have arisen under that deed so often referred to in the course of the case. It was said to have been a purely voluntary gift, but their Lord- ships think, if it were necessary to express an opinion on it, it might be doubtful whether it was voluntary, and whether its true character was not a grant to the magistrates of the city of Montreal for valuable con- sideration. The place in question was originally the property of the Semmary Monti eal, and the Seminary, being about to dispose of it, entered into a treaty withe Perinault and Durooher. The property appears to have been made over to Perinault and Durocher to make the most they could of it, but under a condition that they were to pay to the Seminary a sum of about 3,000 guineas. They piooeeded accordingly to divide it for building purposes ; but reserved a portion, and they entered into treaty PRIVY COUNCIL 901 with the concessionaires, who stipulated that there should be not only . Chevieny the Rue de la Fabrique (which did not then exist as a street, but was Ue laChe- projet^e only), and also that the open space lying between the Rue de ^'°^ ^^ la Fabrique and the Eue St. Charles should be converted into a public Monttlal. market. Perinault and Durocher, being unable to comply with that condition without the aid of some public body, applied to the magistrates at Montreal, as they could create a public market, and it was necessary to seek their aid, and out of this sprang the grant of the 29th December, 1803. The result of that deed seems to be, that it created a public right as well as a private servitude, — that is, when that deed had been carried out by converting the open space, which is now the subject in question, into a public market place, with a right in the public to resort to it as a public market place, — it became subject to that public right, at the same time, possibly, being subject to a private servitude to the partie^ who had become concessionnaires of the building plots. Their Lordships do not find it necessary to express any opinion upon the general con- struction, or upon the effect of the condition contained in the grant of 1803. They assume, but for the purposes only of the judgment which is about to be delivered, that the demandant's contention may be right, that when there was a breach of that condition, the donors or their representatives would be entitled to re-enter and to resume possession as of their former estate. Several questions of very considerable importance and difficulty have been raised before this Committee. One was suggested by one of theu" Lordships — whether the condition was apportionable, and, if not apportionable, whether the demandants could sue, not being the owners of nor interested in the whole of the property which is the subject- matter of the condition. On that question also, their Lordships do not , find it necessary, in their present judgment, to express any opinion. There were also questions whether the condition of re-entry was void in its inception, whether it was a condition of re-entry properly, or was merely inserted in the deed of gift in terrorem, and merely com- minaioire. There was also a question of prescription and other questions in the case upon which their Lordships do not propose to express any opinion^ as the appeal may be disposed of on another and satisfactory ground. The magistrates of Montreal having got possession of the land under that deed of 1803, and converted it into a public market, we come next to the Ordinance of 4 Vict., by which the magistrates ceased to be the managing body of the city of Montreal, and were replaced by a quasi- corporate body. That leads to the 8 Vict., c. 59. The magistrates in i Montreal had accepted this deed of 1803, which, whether it was for valuable consideration, or a simple voluntary deed, was a deed of grant for ever. The words are " maintenant et d, toujours " — but subject to the 902 PEIVr COUNCIL Chevigny de la Che- vrotlSre & Cite de Montreal. condition, whatever the effect of it was. Therefore, at the time of the incorporation of the city, the magistrates were, as trustees for the public, in ownership of this land in perpetuity, subject to the condition, with this market upon it ; and over this public market place, not inhabitants of the city alone, but the public at large had acquired considerable rights. That being the position of affairs, there came the Canadian statute of 8 Vict., c. 59 ; that statute is not a general Act dealing with all cor- porations, but with Montreal alone. It is to give greater potency and effect to the incorporation of the city of Montreal and to enlarge the powers of the corporate body. It gives them very extensive powers over the city, and amongst other things it says, in the 50th section, that they shall have power of " changing the sit e of any market or market " place within the said city, or to establish any new market or market " place, or to abolish any Inarket or market place now in existence, or " hereafter to be in existence in the said city, or to appropriate the site " thereof, or any part of such site for any other public purpose what- " ever, any law, statute, or usage to the contrary notwithstanding ; " saving to any party aggrieved by any act of the said council respecting " any such market or market place any remedy such party may by law " have against the corporation of the said city for any damage by such " party, sustained by reason of such act " of the corporation. Now it was contended that, acting under that statute and convert- ing this market place to another public purpose, was no breach of the condition, and that the effect of the statute was to discharge the condi- tion and leave it open to the corporation, acting for the public interests, to appropriate the site of that market place to any other public purpose, but subject to a claim for compensation by the demandant here and the parties he represents, if they had title, and had been injured by the act of the corporation. Now upon this very important question as to the effect of this statute, their Lordships do not think that it is necessary at present to express any opinion. Proceeding under the powers that they had so obtained in De' cember, 1847, the first by-law was made. In that, the corporation indicate their intention to abolish this market and apply the site to an- other public purpose, and their Lordships can have no doubt, that in taking that step, the corporation were moved only by considerations of public good. They found it necessary, probably, to supply the growing city with a larger market place, for Montreal in 1847 was a very different place from the Montreal of 1803, growing and extending every day, and still growing and becoming one of the most beautiful cities in the world. They very likely thought that a larger market place was necessary, but that they ought to retain the space occupied by the market as an open space for the public good and the pubUc health, and hence they con- verted it into the Place Jacques Cartier. PRIVY COUNCIL 903 In January 1 847 the act of conversion was made complete, and ^jg^jg^y there was also a subsequent by-law by which they directed that the new '^^ 'Sp**®' place should be henceforward called the Place Jacques Cartier. in question likewise contained a saving of the prerogative of the Crown. Another case lately before this Committee requires consideration, Theberge and another vs. Landry (L. E. 2 Appeal Cases, 102). It was an application for special leave to appeal against a judgment of the Superior Court of Quebec upon an election petition, by which the applicant had been unseated for corrupt practices. By the Quebec Con- troverted Elections Act, 1875, the decision of controverted elections, which formely belonged to the Legislative Assembly itself, was conferred upon the Superior Court, and by Section 90 of the Act is was enacted that the judgment of that Court sitting in review should not be suscept- ible of appeal. It was held by this Committee that there was no ! prerogative right in the Crown to review the judgment of the Superior Court upon an election petition, and the application was refused. This decision turned on the peculiar nature of the jurisdiction delegated to the Superior Court, and not merely on the prohibitory words of the statute. It was distinctly and carefully rested on the ground of peculiarity of the subject matter, which concerned not mere ordinary civil rights, but rights and privileges always regarded as partaining to the Legislative Assembly, in complete independence of the Crown, so far as they pro- perly existed ; and consequently it was held that, in transferring the decision of these rights from the Assembly to the Superior Court, it could not have been intended that the determination in the last resort should belong to the Queen in Council. But, whilst coming to this 918 PRIVY COUNCIL Cuslilng decision, the Lord Chancellor, in giving the judgment of the Committee, * affirmed the general principle as to the prerogative of the Crown : — " Their Lordships wish to state distinctly that they do not desire to imply any doubt whatever as to the general principle, that the prero- gative of the Crown cannot be taken away, except by express words ; and they would be prepared to hold, as often has been held before, that in any case where the prerogative of the Crown has existed, precise words must be shown to take away that prerogative." . It was not suggested that an appeal would not have laid to the Queen in Council under the Insolvency Act of 1875 ; and it was not until two years afterwards that the Amending Act of 1877, which is said to have taken it away, was passed. The learned Counsel for the appellant drew attention to the Act of the Parliament of Canada, 31 Vict., c. 1, which enacts rules of inter- pretation to be applied to all future legislation, when not inconsistent with the intent of the Act or the context. Sub-section 33 of section 7 of that Act is as follows : — " No provision or enactment in any Act shall affect in any manner or way whatsoever the rights of Her Majesty, her heirs, or successors, unless it is expressly stated that Her Majesty shall be bound thereby." The Insolvent Acts are to be construed with reference to this pro- vision, which is substantially an affirmance of the general principle of law already adverted to. Applying that principle to the enactment in question, their Lord- ships are of opinion that, as it contains no words which purport to dero- gate from the prerogative of the Queen to allow, as an act of grace, appeals from the Court of Queen's Bench in matters of insolvency. Her authority in that respect is unaffected by it. The order for leave to appeal granted in the present case will con- sequently stand. Upon the merits of the appeal the following are the principal facts: Messrs. McLeod, McNaughton and Leveille, who carried on business as brewers in Montreal, became insolvent on the 19th July, 1877, and on the same day their estate and effects, including the plant, material and effects which are the subject of these proceedings, were seized by the respondent, as official assignee under a writ of attachment in insolvency. Thereupon the appellant, who is a notary, demanded from the assignee the delivery of the above-mentioned plant and effects, on the ground that they had been sold to him by the insolvents on the 14th March, 1877, about four months before the insolvency. He claims them as owner under a contract of sale, in the petition which gives rise to this appeal. The contract on which the appellant relies is contained in a notarial instrument, by which the insolvents purport to bargain, sell and assign to the appellant the plant, material, furniture and effects (described in PRIVY COUNCIL 919 detail in the bill of sale) lying and being in and about their brewery. Pushing Some of these effects are valued in the bill of sale, the total of these * values amounting to $4,800 ; others are not valued. The consideration is "^"^' thus stated in the deed : — « The present bargain and sale is made in manner aforesaid, for and in consideration of the sum of one dollar currency, ca before they were completed. facturiere 4. What should be done so that each party may use the water with- clnthe. out injury to the other. 5 What amount of damages, if any, should be paid by the defend- ants to the plaintiffs. These instructions are not pointed to the effect of the plaintiffs' operations, but rather indicate that the only question is whether the flow existing at the time of the defendants' operations has been impeded- In answer to the first and second questions the experts show the construction of the old and new mills to the effect hereinbefore stated but they say nothing about the extension of Dyke No. 1, nor do they show what was the former flow of the water, or the bed of the river, or in any other respect what was the state of the localities prior to the execution of the recent works of the plaintiffs. In answer to the third question they find that the defendants' new barrier bays back the water to the depth of about two feet at the boundary line. Point A. In answer to the fourth question they find the the defendants ought to lower their barrier 22 inches, so as not to bay back the water at all over Point A. And they award $100 for damage. The parties then went into evidence, and the cause came on for hearing before Mr. Justice Sicotte, Judge of the Superior Court. That learned Judge gave the plaintiffs a decree in precise accordance with the opinion of the experts. The decree is founded on recitals showing that the plaintiffs have been in possession of a real right for a year and a day, using the upper waters and letting them escape over the land of the defendants. Then it states that the barrier raised by the defend- ants has obstructed the waters in their natural course such as it was formerly. It is clear then that the Superior Court paid no attention to the alteration effected by the plaintiffs' works in 1878. The recital of pos- session for a year and a day is true of the prior state of things, but is tot true of the existing state of things. Nor is the present course of the water its natural course, nor such as it was formerly. On appeal to the Queen's Bench, there was a difference of opinion among the Judges. Mr. Justice Ramsay states very clearly the point of the defence which is now under discussion. H e says, " The defendants " answer that they have not stopped the natural flow of the water, but " that the plaintiff has, by increasing his own works above, directed the " waters of the river out of their natural course, and so created an arti- ' fioial accumulation of water which can only escape through the tail " race." He thinks this would be a good defence if it were not for the acquiescence or recognition of the defendants. But there is no evidence of such acquiescence in the plaintiffs' works of 1878. The evidence 946 PRIVY COUNCIL Frechette I'^f^rred to by Mr. Justice Ramsay consists of two acts. First, the con- * struction by the defendants of Dyke No. 3, which was long prior to the facturiere extension of Dyke No. I. Secondly, the construction of the works now *cinth& complained of. But in the first place, though it is true that by their new works the defendants sought to take advantage of the new flow of water, they did so because their former flow was partially cut off. And in the second place an act can hardly be treated as acquiescence in fa- vour of a person who have ever since been contending against it, and striving to destroy it. It is at the utmost acquiescence on condition of enjoying the thing acquiesced in, and if that condition is taken away, so is the acquiescence. Having thus disposed of the defence founded on extension of Dyke No. 1, Mr. Justice Ramsay addresses himself to the question of damage. He thinks that there is no sufficient evidence of damage, and would either dismiss the action or remit it for further report by experts. The opinion of the rest of the Court was delivered by Mr. Justice Tessier. That learned Judge states the defendants' plea that the plain- tiffs themselves have caused the mischief complained of, but he thinks it completely answered by the report of the experts in answer to the 3rd question. Now that que-tion and answer relate only to the exist- ing flow of water, and have absolutely no bearing on the prior question whether the plaintiffs are entitled to have that flow protected. Mr. Jus- tice Tessier then quotes Art. 501 of the Code, and says that the Com- pany have not added anything to the volume of the water by the hand of man, because they have not introduced any foreign water into the Yamaska. On these grounds the Court decides for the plaintiffs, and dismisses the appeal. It is true, indeed, that the plaintiffs have not increased the whole volume of the Yamaska, but they may have accumulated the waters of that river into a small space, and so have increased their depth at the point where they complain of it, and have augmented the servitude they desire to enforce. This is the very thing which the Court of Queen's Bench appear to think would be material if only it had been done by introducing fresh water into Yamaska, instead of being done by a read- justment of the waters of Yamaska itself. That it must have been done to some extent seems evident from the plan, and the respondents' coun- sel so admitted. It results also from the evidence given by Bertrand and by Delisle, showing how the water which used to flow to the right of Dyke No. 1 now flows to the left. The plaintiffs have left the point untouched by evidence. Whether the difference is much or little has not been ascertained. By Sect. 501 of the Code, the proprietor of the higher land can do nothing to aggravate the servitude of the lower land. The plaintiffs have certainly accumulated the volume of the water, and have probably increased its depth in the narrow channel up to the dividing line. To that extent they are aggravating the servitude PRIVY COUNCIL 947 of the lower land, and to that extent at least they have no right to ^ , ^ ^^ - , T , "^ ° Freonette demand, as they do demand, a free course for the water sent down by , & them. That the matter is left in this uncertainty is the fault of the facturl^re' plaintiffs who are bound to allege and prove a case entitling them to ''®cfnther relief. They come into Court insisting on their right to keep unstructed the flow of water which they say has existed as it now is for more than 60 years. The issue is distinctly raised that the existing flow is not the ancient one ; but they continue to insist that it is, and refuse to shape the case so as to try the question whether or no they are really entitled to some relief on the ground that the established flow had been interfered with, and to get that amount of relief. It is unsatisfactory to dispose of a case on such grounds, but their Lordships cannot see by what right the defendants are to be compelled to keep their dam so low that the whole volume of water, as accumulated and increased by the plaintiffs, shall run away unobstructed. It is not easy to find decisions precisely applicable to such peculiar circumstances ; but their Lordships have not been referred to and are not aware of any case in which the plaintiff has obtained relief in res. pect of any servitude except that to which he has clearly alleged and proved his right. In Saunders v. Newman, IB. & A. 258, the plaintiff had acquired a prescriptive right to an artificial flow of water. All he had done within recent times was to alter the construction of the wheel turned by the water. It was held that the defendant, a lower proprietor, had no right to obstruct the ancient flow ; but it seems clear from the observations of the Judges that the decision would have been otherwise if the plain- tiffs operations had substantially altered the flow of the water. Abbott J., says, " When a mill has been erected upon a stream for a long period " of time, it gives to the owner a right that the water shall continue to " flow to and from the mill in the manner in which it has been accus- " tomed to &ow during all that time. The owner is not bound to use the " water in the same precise manner, or to apply it to the small mill. If " he was, that would stop all improvements in machinery. If indeed the " alterations made from time to time prejudice the right of the lower '' mill, the case would be different ; but here the alteration is by no " means injurious, for the old wheel drew more water than the new " one. " Tapling v. Jones, 11 H. L. 290, was cited as an authority for the plaintiffs ; but so far as it bears upon the point under discussion it fa- vours the argument for the defendants. For the plamtiff in Tapling v. Jones succeeded in getting protection for nothing but his ancient light ; those very rays of light to which he had acquired an indefeasible right. Lord Westbury says : " In the present case an ancient window in the " plaintiffs house has been preserved, and remain unaltered during all " the alterations of the holding The appellants' wall, so far 948 PRIVY COUNCIL Frfiohette " ^ '* obstructed the access of light to the respondent's ancient unal- & " tered window, was an illegal obstruction." And Lord Chelmsford, in Cie jylanu- ' o / facturisre answering the argument that the alteration of window had changed the cfuth?^* character of the right so as to destroy it, says, " But it is not easy to " comprehend how this effect can be produced by acts wholly uncon- " nected with an ancient window which the owner has carefully retain- ed in its original state.'' It may be inferred from these judgments that, if the plaintiff in Tapling v. Jones had so mixed up his old lights with his new ones that they could not be distinguished, he would have failed. It is true that in that case the protection given to the ancient light carried with it in- cidentally protection to the new Ughts. But the only reason why it did so was that the new lights could not be obstructed without obstruction to the ancient light. New lights are no encroachment, nor did the plaintiff's deed aggravate the defendant's servitude, for he was only prevented from building so as to obstruct the ancient lights. In the case of an augmented flow of water the servitude of the lower proprietor is aggravated. The result is that the Plaintiffs have insisted on enjoyment to which they have shown no legal title, and have not proved or even alleged any case for relief in respect of that enjoyment to which they may have had a title. Their Lordships have anxiously considered whether it is possible usefully to remit the case to be tried on the true issues. They are however,' convinced that an attempt to do so will not save time or money, and that the litigation must follow the strict course. They will humbly advise Her Majesty to rever-e the decrees below and to dismiss the action with costs. The costs of this appeal will follow the result. Judgment reversed. Henry Matthews, Q.C., and Macleod Fullerton, counsel for the Appellant. Bompas, Q.C., and Kenelm E.Dighy, counsel for the Respondents. PRIVY CO€NCIL 949 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Goidring London, Feb. 1, 1830. lm&. Before Sik James W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith, Sir Robbkt P. Collier. GOLDliING V. LA BANQUE D'HOCHELAGA. Per Ccelam. Their lordships, upon the best consideration they can give to this case, are opinion that it is not one in which it was compe- tent to the Court of Queen's Bench to grant the leave to appeal, The 1178th Article of the Code of Procedure is precise, that an appeal lies to Her Majesty in Her Privy Counsil from final judgments rendered in appealer error by the Court of Queen's Bench. Then it gives the cases in which the appeal is allowed. There is no express provision for the allowance of such an appeal from an interlocutory order. The argu- ment in support of the order of the Court has proceeded chiefly upon Art. 822 of the same Code, which is one of those which relate to proce- dure in respect of writs of capias. That article appears to their lord- ships clearly to imply that the decisions to which it relates are no more than interlocutory orders. If the decision of the Superior Court on the matter therein referred to had been regarded as a final judgment, there would have been no necessity to give by this article special leave to appeal, because it would have been appealable under Art. 1115, as pointed out by Mr. Digby. The real object of the article is to make special pro- vision for an appeal to the Court of Queen's Bench from an interlocutory order of a particular kind. The Code gives by Art. 1116 an appeal againgst certain other interlocutory judgments, but in these cases Art. 1119 provides that there must be a preliminary motion before the Appellate Court, in order that that court may decide whether the parti- cular judgment falls properly within the terms of Art. 1116. But an appeal from an interlocutory judgment under Art. 822 was not to be subject to that provision, and hence the necessity for that article. The judgment of the Court of Queen's Bench upon a judgment of the Superior Court in this matter, cannot be regarded as a final judg- ment within the meaning of Art. 1178, unless it can be shown that pro- oeedmgs under the provisions of Art. 796 and the subsequent Articles of the Code which relate to the particular subject of capias ad responden- dum, are so severed from the general suit that they are to be treated as something separate in their nature, and not as incident to the suit. Their lordships are of opinion that the Code has not expressed that they are to be so treated, and that from their nature they are merely mci- dental to the suit and in the nature of process therein. They are, there- fore, of opinion that the judgment of the Queen's Bench, which is the subject of the appeal, is not a final judgment within the meaning of the Code, and consequently that the appeal has not been regularly brought before Her Majesty in Council. Goldring & Banque d'Hocbe- laga. 950 PRIVY COUNCIL It has been suggested that their lordships may now recommend Her Majesty to grant, as they have unquestionably power to do, special leave to appeal ; but they are of opinion that there are not before them sufficient grounds for making such a recommendation. They, there- fore, think that the prayer of this petition must be granted ; but, con. sidermg that the pomt is novel, and that the Court of Queen's Bench has seen fit to allow that appeal, they do not think it is a case for costs. Their lordships will, therefore, humbly advise Her Majesty accordingly. Gravel Wartin et al. JUDICIAL COMMITTEE OF THE PEIVY COUNCIL. 5th May, 1876. Coran Sir Jambs W. Colvile, Sir Barnes Pbaoook, Sir Montague E. Smith, Sir Egbert P. Collier. PEEERE GRAVEL v. PIERRE P. MARTIN bt al. On the 18th of June, 1869, the defendant, as a clerk or servant of the plaintiffs, was entrusted by them with a considerable sum of money for the purpose of carrying it to England to make purchases for themi and to pay debts which they owed in England. The money was packed by the plaintiffs in a valise, and that valise was put into a cabin, No. 101, which had been taken for the defendant in a steamer called the " Quebec," a river steamer, in which the defendant was to go from Montreal to Quebec, in order to proceed to England on board a transatlantic steamer which lay at Quebec. The defendant, having accepted the money, it was necessary for him to account for it if he did not use it in the manner in which he was employed to use it ; and the account of the money which he gave to the plaintiffs was this : that whilst he was on board the steamer " Quebec " a portion of the money was stolen, and that he had put the reet into the hands of the captain, who had handed it over to the plaintiffs. It is admitted that the onus lay upon the defendant to prove that the robbery was committed. Many witnesses were called on the part of the defendant to prove that the money was stolen, and the Court must judge of the fact whether the money was or was not stolen by the evidence given at the trial by witnesses who were subjected to cross-examination,and not by depositions which were given before the magistrates, when the plaintiffs had no opportunity of cross-examining the deponents. The learned Judge who tried the case in the first instance, Mr. Justice Beaudry, says, — " The defendant has not proved the exception " which he has pleaded, by which he alleged that he was the victim of " a robbery of the bulk of the money which had been confided to him, PRIVY COUNCIL 951 " and he has not been able to discharge himself from the obligation to gravel " account for the money." & The case was appealed to the Court of Queen's Bench, and was al. argued before four Judges, of whom the majority substantially affirmed the decision of Mr. Justice Beaudry. One of the Judges, however, Mr. Justice Taschereau, thought that the judgment of Mr. Justice Beaudry was wrong, and what we are called upon to do now is to reverse the decision of the majority of the Judges of the Court of Queen's Bench, and to say that they ought to have reversed the judgment of Mr. Justice Beaudry. Their Lordships are always reluctant to reverse a finding upon a mere question of fact, even by a single Court of Justice, but they are ftill more reluctant so to do when the decision of the Court who tries the case in the first instance has been affirmed by a Superior Court of Justice, and when there are two concurrent judgments upon a question of fact. As a general rule their Lordships do not interfere with such a finding, and there must be some very good reason to induce them to reverse a decision of a Court upon a question of fact, when that decision affirms the decision of a lower Court. Now, dealing with the evidence which was given upon the trial, we are met by the statement which the defendant himself gave three days after the alleged robbery was committed. He say? the robbery was committed on the 19th June. On the 21st of June he made a statement before the magistrates as to the circumstances under which the alleged robbery was committed. Now the circumstances which he then related, when the facts must have been fresh in his memory, are wholly at variance with the evidence which he gave at the trial, both as to the time at which the robbery took place and as to the place at which it took place. On the trial he stated that when he found the steamer moving he went to the steward to ask him to assist him in removing his valise. He says that about ten minutes elapsed between the time when he left his cabin and all was right and the time when he found the steward. But upon his first examination before the magistrates he stated that the robbery had taken place before the steamer left the quay, and that he gave information to the police upon the subject ; and one of the detective police officers also states that defendant told him that the robbery had taken place before the steamer left the quay. Then the question is, are we to say that the judges were wrong in disbelieving the evidence which the defendant gave upon the trial of the cause when he had given previously, on the 21st of June, 1869, only two days after the alleged robbery had taken place, and when the facts must have been fresh in his memory, a statement wholly inconsistent with that evidence ? There are many other discrepancies between the evidence which he gave at the trial and the statement which he made before the police magistrates ; and there are also discrepancies between his evidence and 952 PRIVY COUNCIL Gravel ^^^ evidence of Biron the steward. He says then when he looked into & the cabin he saw the vahse on the floor, opened, and then he exclaimed al. " My God 1 I have been robbed." Biron, on the other hand, stated in his affidavit, that when he entered the cabin the vaUse was on the berth and that the defendant opened the valise. So that the valise must have been lying, if Biron's evidence is correct, on the berth in the cabin, closed up ; and if it was in that state, the defendant must have been wrong in stating that when he looked into his cabin he saw the valise lying on the ground, opened, and everything in disorder. But it must be said, with reference to that statement which Biron made in his affidavit, that he did not state in his evidence anything as to where the portmanteau was found. At page 64, line 20, he said . " After that passed " by the cabin No. 101 ; the defendant followed me, and we passed " behind the cabin. The defendant entered into the cabin through the " window. As to me, I do not recollect whether I entered in the cabin " or whether I remained at the window, but I recollect well upon entering " the cabin the defendant lifted the cover of the valise and took out his " clothes, which he threw upon the ground." Now, with the inconsistent statement which the defendant made before the magistrates when the matter was fresh in his memory, we are called upon to say that the two Courts of Justice who have found that the defendant had failed to prove that the robbery was committed were in error, and that we ought to reverse their decision, and find that the defendant has proved satisfactorily by the evidence at the trial that a robbery was committed. None of the judges found, as a fact, that the defendant himself committed the lobbery, and their Lordships abstain from expressing any opinion upon that subject. All that the judges did below was to find that the defendant had not proved that the money was stolen, and that is all that their Lordships do in affirming the judgment of the Court of Queen's Bench. Under these circumstances their Lordships will humbly recommend Her Majesty to affirm the judgment of the Court of Queen's Bench. The appellant must pay the costs of this appeal. Judgment confirmed. Benjamin, Q. C, & Bonpas, for appellant. Matthews, Q. C, & Fullarton, for respondent. PKIVY COUNCIL 953 Kershaw & PEIVY COUNCIL, ]878. trSfefaU 25th January, 1878. Present : — Sir Jajies W. Colvilb, Sir Barnes Peacock, Sir Montague E. Smith, Robert P. Collier. KKKSHAW V. KIEKPATKICK et al. This was an action for money had and received, to which the gen- eral issue was pleaded. The question in the cause may be shortly stated to have been the appropriation of a payment, on which the lower Court, and the Court of Queen's Bench, have found in favour of the plaintifi". The material facts of the case are as follows : Mr. Kershaw, the defendant, a broker, bought a cargo of wheat as a broker from the plaintiffs, Kirkpatrick & Co., for and on behalf of a firm named Steven- son. The quantity of wheat bought was on the whole some 13,000 bushels. There was, however, a separate invoice with respect to 8,127 bushels, the price of which amounted to 10,000 and some dollars. Mr. Kershaw had also acted as broker in another transaction whereby Stevenson became the purchaser of the cargo of another vessel called the " Europe," of which the price was some 17,000 dollars. In this cargo Kershaw appears to have had some interest himself, but it had been pledged to the Bank of Montreal, who were the ostensible vendors. On these two accounts a sum of about 37,000 dollars was due from Steven- son to Kershaw on the 18th of July, 1874. On that day Kershaw sent his clerk, a Mr. Benac, to Stevenson s of6ce to get what money he could on account. Mr. Stevenson, the plaintifTs principal witness, gives the following account of what then took place. He says, " Mr. Benac, " Kershaw's clerk, who is in the habit of acting for him sometimes, came " into the oflBce and asked me how much I could give him, and I told ' him I did not know. I would give him as much as I could. There, ' was some mention of 20,000 or 30,000 dollars. I said I could not give, '• him much that day. He went away, and in a few minutes came back " again, when I told him I had been disappointed in getting money. I " drew a check for 8,000 dollars and handed it to Mr. Benac. That " account paper " B " being with a lot of other accounts, I handed the " account to Mr. Benac with a cheque, and he marked the words July " 18th, cash on account, P. Benac, 8,000 dollars." In page 15 of the cMe that document is set out. It is an invoice of wheat sold by Kirk- patrick & Co. to Stevenson, of the 15th of July, and runs in this way : " 8,127 3O26O bushels Amber Michigan Wheat ex barge ' Swan ' into '" Elisabeth Alice, at 1.25= - - $10,159.37 Brokerage 40.63 $10,200.00 " 34 954 PRIVY COUNCIL Kershaw ^elow the $10,200.00 is the entry " July 18, cash on account with the * bank $8,000," which is what this witness referred to as having been trick ctal. written by Mr. Benac at that time on this invoice. It may be here observed that it was not written on the back of the invoice, but on the face of it and under the figures which have been referred to. There are in this exhibit also the words " Balance, $2,200." But it does not appear distinctly when and where those words, which are in pencil, were written. Mr. Stevenson goes on to say, " The invoice, after the money " was paid and the receipt written, was in the same state as it is now, " with the exception of some figures in pencil. 1 fancy the cheque I '' gave was paid. It was on the Union Bank," He identifies the cheque. Cross-examined, he says, " The wheat was from the barge ' Swan.' I " employed Mr. Kershaw to buy the wheat. He was my broker. Mr. " Benac, when he came for the money, said, as near as I can recollect, " ' Is that all you can give me,' and I gave him the cheque for the 8,000 'dollars. The first time he came was the I8th July, about 12 o'clock. He asked rrie how much I could give him, and I said I could not tell. " He then said, ' How much do you expect ? ' and I said ' 20,000 or " 30,000 dollars.' That is all that transpired at that interview. He came •' back again about half-past 12. He said, 'How much can you give " me ? ' I said, ' So far I have only been able to get 8,000 or 9,000,' and " I handed him the account and a cheque.' He made some remark " about not taking it on that account." (It should be observed that Mr. Benac, when called, does not in any way corroborate this latter statement.) " His precise words when he came in were, ' How much " can you give me ? ' and I said, ' Take that in the meantime, and I will " see if I can do any more.' " He says, further on, Benac returned in about 10 minutes, " and said, that Mr. Kershaw would not receive that " upon account of the ' Swan's ' cargo, that is plaintifFs debt ; and to " change the receipt. I said to Benac, ' I am going away, we can leave ' that until Monday.' He said the 8,000 dollars was not to be on ' account of Kirkpatrick & Cookson, but on account of the ' Europe,' " which was an older debt of some days before. I said I was just going " away, and I would see and straighten it upon Monday. I was going " away early, at half-past one. I was going to the country to St. Hilaire' '' by the 2 o'clock train. That is all that transpired on the Saturday " between me and Benac." Then he goes on to speak of what sub- sequently took place. " I received a visit from Kirkpatrick that after- " noon about 10 minutes after Benac was gone. Mr. Kirkpatrick came " to my oflSce, and asked for some money on that debt of the ' Swan.' '' I said I could not give him the whole. He said, ' Give me some.' I '' said, ' I have given Mr. Kershaw all I had, and I suppose he will give " you some.' That was all that transpired at that interview. Mr. Kirk- " Patrick then went away, but came back in 5 or 10 minutes. I fancy, " from the direction which I saw him coming from, that he went to Mr. TRIVY COUNCIL 955 « Kershaw's. He said that Mr. Kershaw had said that he had no money ^ , " for him. I said I supposed he had applied it to some other account. & " He then asked me if I could not give him some, and I then gave him tr^ket a'l. » a cheque, I think, for 4,000 dollars. I did not take a receipt for that " payment, to the best of my recollection. The cheque was made pay- " able to the firm's order. I do not recollect whether it was that " Saturday or the Monday following that he told me that he would look " to me for the account- He said I was not to pay any naore money to " Mr. Kershaw, but that he looked to me for the entire amount of the " wheat purchased. I paid Mr. Kirkpatrick afterwards 5,000 dollars, " either on the Monday or the Tuesday following." Then the question is put, '' Is it not a fact that Mr. Kirkpatrick, time after time, and after " payment by you of 4,000 or 5,000 dollars, dunned you for the payment " of the balance of the cargo of the ' Swan ? ' Answer : — Yes, on several ".occasions he asked me for the balance. I saw Mr. Kershaw on the " Monday. He told me that he had sent Benac over to say that he " would not accept that payment on account of Kirkpatrick & Cookson, " and to cancel that receipt and put it to the account of the ' Europe,' " which was due long before that to which he had paid it. I said it was " no use doing anything about the matter, it could easily be explained. " He said the money was for the ' Europe's cargo, which was due before " that, and that he had sent Benac over to say so. I refused to cancel " it. I did not think it was worth while to cancel it. I said to Mr. Ker- " shaw it was much better to leave it as it was and explain the circum- " stances. I got the ' Europe's ' wheat from Mr. Kershaw, who had given " a ' Bailee ' receipt to the Bank of Montreal." Then he says, " When " Mr. Kirkpatrick came to my office I told him that the $8,000 I had " paid I expected Mr. Kershaw would give him some of it. I did say in " my deposition before the police magistrate that I said to Mr. Kirk- " Patrick that I expected the 8,000 dollars I had given to Benac was for " him (Kirkpatrick). I had previously promised Kirkpatrick to pay " him his account on that day." Then there is a little explanation on his re-cross-examination, the question being, " You have stated in answer " to Mr. Kerr, that you have sworn in your deposition at the Police " Court that you had told Mr. Kirkpatrick on the 18th of July that you " were under the impression that you had paid Mr. Benac 8,000 dollars " which you expected was for him, did you not also state, to complete " the same sentence which did not end there, the following words, ' but " as there were other accounts running between Mr. Kershaw and me " that it had been applied to something else ? ' Answer : I did." There is also the evidence of Benac, which does not throw much more light upon the main question in the cause, how and under what circumstances the invoice was given to him, and he wrote the receipt. He gives a short account of what took place at the interview, but with- out stating the circumstances under which he received the invoice or 956 PRIVY COUNCIL wrote upon it. He only refers to it incidentally by saying, " I brought 4 " back the cheque to the office and handed it to Mr. Kershaw. Mr. tricke^^l. " Kershaw asked me if it was intended for any particular account. I " said to Mr. Kershaw, ' No ; Mr. Stevenson did not tell me anything " ' about it, but I think I gave a receipt for the money on Mr. Kirk- " ' Patrick's invoice.' " Then he further says : " I was in a great hurry, " and I took the first invoice in order to acknowledge the sum which I " received from Stevenson. It was merely accidental ; if it had been " another account it would have been the same thing. There were a " lot of accounts together. Generally we do the same thing in all the " houses where we are doing business. This does not appear to their Lordships a very probable statement, considering the importance attached by the Canadian Law, somewhat greater than that attached by our law, to instruments of this description. The judgments of the two Courts are very short. The first is the judgment of Mr. Justice Mackay, who, as their Lordships understand, had the witnesses before him. It consists, as far as the decision on the point in the cause is concerned, in these words : " Considering that the " defendant on the 18th day of July last received 8,000 dollars, money " for plaintiffs, as alleged, from J. B. Stevenson & Co., purchasers of " plaintiffs' wheat, that at the time of payment of it J. B. Stevenson & " Co., meant it for plaintiff's." Their Lordships, therefore, observe that Mr. Justice Mackay finds as a fact that the money was meant, that is, meant by Stevenson, for the plaintifis. He goes on to say. " And " defendant so expressed it by the account rendered and receipt given " to the said J, B. Stevenson & Co., on the said 18th day of July last, " against which defendant cannot go, certainly not under his plea " pleaded (mere general issue)." Their Lordships do not read this judgment as ruling that the receipt per se would be conclusive, and that the plaintiff' could not go against it ; but that the receipt having been given, eff"ectuating the intention of the parties, or at all events the intention of the debtor, who had a right to appropriate the payment, he connot be impugned at all events under these pleadings. The judgment of the Court of Queen's Bench recites what seem to the Court the most material facts thus : " On the 15th of July 1874, the " said Thomas Kershaw, acting as agent of the respondents, rendered to " the said J. B. Stevenson & Co. an account for 8,127^ bushels of amber " Michigan wheat, so sold and delivered to the said J. B. Stevenson & " Co. by the respondents, together with his account for brokerag.e " making in all the sum of 10,200 dollars. On the 18th July, 1874, the " said Thomas Kershaw sent his clerk to the said J. B. Stevenson & Co. " to get some money ; the clerk received 8,000, dollars, and gave a receipt " on account of the respondent's wheat. When he returned the said " Thomas Kershaw asked him if the 8,000 dollars was on any particular PRIVY COUNCIL 951 '' account. The clerk replied that he thought he had given a receipt on Kershaw " account of the respondent's cargo of wheat, upon which the said & " Thomas Kershaw replied, " Go back and tell Stevenson."' After reciting trick et al. the judgment of the Court below, the Court of Queen's Bench proceed to Bay, " The Court here see no reason to alter the judgment of the Court " helovr. The imputation was made by the parties at the time the receipt " was given, and to this date this receipt remains in evidence that " Stevenson paid the $8,000 to appellant on occount of amount due to " respondents.'' The law of Canada with respect to the appropriation of payments appears not to differ materially from the law of this country. It is contained in the section 1,158 and the following sections of their Civil Code. Sections 1,158 is in these terms : " A debtor of several debts has '' the right of declaring, when he pays, what debt he means to dis- " charge.'' This is very much a repetition of a similar provision in the Code Napoleon, the commentators on which paraphrase the expression " when he pays " by the expression " at the instant or the moment of " payment." Section 1,160 runs thus : " When a debtor of several debts " has accepted a receipt by which the creditor has imputed what he has " received in discharge specially of one of the debts, the debtor cannot • " afterwards require the imputation to be made upon a different debt, " except upon grounds for which contracts, ma}' be avoided," which are to be found in Article 991, which declares that contracts may be avoided on the ground of fraud and error, and other grounds very similar to those on which they are avoidable in this country. Then section 1,161 says : " When the receipt makes no special imputation, the payment " must be imputed in discharge of the debt actually payable which the " debtor has at the time the greater interest in paying," and so on. The only observation their Lordships think it necessary to make upon these provisions in the Code is, that they seem to attach somewhat more importance, as indeed the Code Napoleon does, to the written evidence of an appropriation than is attached to it in this country, the object being, no doubt, as far as possible to avoid contradictions of parol evidence. Such being the facts of this case, and the law applicable to them, their Lordships have to determine, not what decision they might have come to if they had heard the case as a Court of First Instance, but stfhether it has been established that the Courts below were wrong in their findings, which their Lordships regard as in a great mesure find- ings of fact. Undoubtedly the evidence of Stevenson and of Benac was far from satisfactory, and it is open to argument upon that evidence that the choice of the particular invoice on which the receipt was written was merely a matter of chance, without the intention of appropriating the payment to any particular debt. But there having been a finding of 958 PRIVY COUNCIL Kershaw ^^°* ^" ^°^^ Courts that it was the intention of Stevenson to appropriate Klrkpa- *'^® payment to tho debt of the plaintiff, their Lordships are unable to trick etal. say that the evidence did not warrant such a finding. Assuming this intention, they agree with the Courts that upon the giving of the cheque by Stevenson, and the receipt by Benac, who was sent by Mr. Kershaw for the purpose of receiving the money, and would therefore be acting within the scope of his authority in giving the receipt, there was an appropriation of the payment to the debt of the plaintifis. That being so, Mr. Kershaw himself could not change the appro- priation, although he appears to have desired to do so. But it has been contended that there was a change of the appro' priation by the consent of Stevenson and Kirkpatrick. Their Lordships do not think it necessary to determine whether, considering that Kershaw received this payment on behalf of a third person, an agreement by Kershaw and Stevenson could have had the effect of changing the appropriation of the payment as against Kirkpatrick, because they concur in what they understand to be the finding of the Court of Queen's Bench, that Stevenson did not agree to any change of the appropriation of the payment. He appears to have given an evasive answer upon the Saturday, and to have spoken again evasively upon the Monday. But the fact remains that he refused to alter the receipt, and their Lordships do not think the Court wrong in attaching great weight to the fact that the receipt remained in the terms in which it was originally written. It has been further contended, that what took place between Kirkpatrick, Stevenson and Kershaw on the Monday amounted to an agreement of all the parties to a change in the appropriation of the payment. It is true that Mr. Kirkpatrick appears to have tried to get as much as he possibly could, and to have got somewhat too much, which possibly he will have to account for to Stevenson's estate. But be that as it may, he does not appears to be made out that there was any rescision of the appropriation of payment by the consent of all parties. Their Lordships are further disposed to think that if such a defence had been set up it ought to have been specially pleaded,as the rescission of a contract is required to be by the Code of Civil Procedure, the appropriation of a payment being put upon the footing of a contract by the Canadian law. Their Lordships think it right to say that no imputation can properly be made against Mr. Kershaw for his conduct. Considering that Mr. Kirkpatrick received the sums which he did from Mr. Stevenson, and having regard to all the circumstances, Mr. Kershaw may very well have thought that this was a case in which he was justified in taking the opinion of the Courts. For these reasons their Lordships will humbly advise Her Majesty PIUVY COU.NCIL 959 that the decision of the Queen's Bench in Canada be affirmed, and this „ , ,,,..,., ' Kershaw appeal be dismissed, with costs. & Abbott, Tait, Woiherspoon ct Abbott, for appellant. trick et^l. Kerr & Carter, for respondents. PRIVY COUNCIL, 1875. Montreal, 2nd March, 1875. Kin" &° Present : Sik Jajibs W. Colville, Sik Barnes Peacock, Sik Montague Pinson- E. Smith, Sir Robert P. Collier. KINGv. PINSONNEAULT. The judgment of their Lordships was delivered by Sir Robert P» Collier : — In order to make this case intelligible a short narrative is riecessary. General Napier Christie Burton, who possessed property in England and in Lower Canada, made his will on the 20th December, 1841 the provi- sions of which material to the cause are as follows : — He gave and be- queathed the lease of the house in England, in which he then resided, and all his household furniture, plate, etc., and all his other effects, to- gether with all cash in the house at the time of his decease, together with all moneys due to him, in his own right, as well as representative and heir-at law of his late father, General Gabriel Christie Burton, to three trustees (George Burton Hamilton and William Henry King, gentlemen residing in England, and Edme Henry, described as of La- prairie near Montreal, Lower Canada) in trust for investing the moneys collected and the proceeds of the sale of the furniture, etc., in Govern- ment stocks, and accumulating such stocks and dividends, " until " in in the words of the will, " Chiistian Harmer, the only child of my na- tural daughter, Mary Harmer, shall attain the age of 21 years, or day of marriage, whichever shall first happen, and then I do direct my said trustees, or the survivors or the survivor of them, or the executors of the survivor, to assign and transfer the whole of such accumulated prin- cipal fund or stock, and all dividends thereon, unto the said Christian Harmer for her absolute use and benefit . . . but in case the said ^Christian Harmer should die before attaining the age of 21 years, or being married, or the transfer of the accumulated stock being made to her, then I do give and bequeath the same unto Henry John Styrling King, the eldest son of the said William Henry King, his executors, administrators, and assigns absolutely for his or their use and benefit," and he directed his trustees to assign the same accordingly. In a subsequent part of the will he bequeathed the residue of his (estate and eflfeots to Christian Harmer absolutely on her attaining the 960 PRIVY COUNCIL ^ age of 21 years, but in the event of her dying under age to Henry John & ° Styrling King, ^nault." By a codicil dated the 23rd of December, 1834, he directed Edme Henry to sell his dwelling house and land adjoining in Lower Canada, to deduct out of the purchase money all that may be due to Henry for the expenses of the sale, and his trouble in collecting the rents of the house and of the real estates and seigniories of the testitor in Canada, and then to pay over to the other trustees " the balance of such pur- chase money, and of all other moneys and rents due to me which have or may come into the hands of the said Edme Henry or his heirs in manner aforesaid, in order that the balance may be invented in Grovern- ment stock in England, upon and for the same trusts and persons to whom I have in the said will bequeathed the rest and residue of my estate and effects." The testator died in January, 1835. Christian Harmer died in April, 1847, at the age of 22 years, un- married. On the 31st December, 1839, Edme Henry, the Canadian executor, with the consent of his English co-executors, sold, by deed of that date, to Pinsoneault, the defendant, a relative of his, the uncollected rents of of the seigniories of the testator in Canada for a sum of £ 1 ,999. On the 18th of December, 1839, nearly 30 years after the above- mentioned transaction, Henry John Styrling King filed a declaration in an action against Pinsonneault and George Burton Hamilton, the last surviving executor and trustee of the testator, in which he set out the will without the codicil, averred that Christiana Harmer had died under ■ age and unmarried, and before any transfer to her ; that Edme Henry had fraudulently concealed from his co-executors the amount of the uncollected rents due to the testator, which amounted to .50,000?. / that by false representations of Henry and Pinsonneault the other executors were induced to agree to the sale to Pinsonneault ; he prayed that the deed of December 31, 1839, should be cancelled, that Pinsonneault should account for all the arrears with interest and profits, or in default should pay to him 480,000 dollars. On the filing of the declaration a burial certificate was filed with it, wherein it is stated that, at the time of her death. Miss Harmer was aged 22. This aoiion was brought when the defendant and his family were in Europe, intending to take a lengthened tour. The statement that Miss Harmer died under age is admitted by Mr. Laflamme, the Advocate and Attorney of the plaintiflT, to have been false to his knowledge, and inserted in the declaration by him to prevent its being demurrable. If the plaintiffs right to sue, as it is now contended for, had been stated, viz., that, notwithstanding Miss Harmer attained her majority, neverthe- less the gift over to the plaintiff took effect because no transfer had actually been made to her, the declaration might have been »met by PRIVY COUNCIL 961 a demurrer, upon the argument of which the plaintiff's right to sue j^^ could have been decided without an enquSte being necessary if the deci- & sion had been against him, and the defendant's presence in Canada navut." might not have been required. It has been suggested that the object of this false statement was to compel the plaintiff's return to Canada, to worli on his fears by the respect of an inquiry into transactions thirty years old, and to drive him to a compromise. Be this as it may, Mr. Pinsonneault when he heard of the action hastened to Canada, and arrived at Montreal on the 25th of May, 1870. Communications took place between his legal advisers and those of the plaintiff, in the course of which a proposition for settling the action of 30,000 dollars was dis- cussed. Mr. Pinsonneault, however, states that on Saturday the 4th of June he had determined to plead to the action, and had given instruc- tructions for that purpose. On that same 4th of June Mr. Laflamme obtained a foreclosure of the pleadings in the suit. The defendant, pro- bably more alarmed than he need have been at this procedure, went to Mr, Laflamme (who had been a personal friend of his) on the Saturday morning without consulting his Attorney or Counsel, and in the course of the day the following document was drawn up by Mr. Laflamme : " Henry J. S. King, Plaintiff, and Alfred Pinsoneault, Defendant. "Memorandum. " It is agreed that this case is to be settled upon the following terms, viz : — '' 1. The defendant is to pay to the plaintiff thirty thousand dollars in full settlement of the action, which is to be at once desisted from, ihe defendant paying costs to the amount of fitty dollars. " 2. Of the above sum of thirty thousand dollars, fifteen thousand dollars shall be paid immediately, and the remaining fifteen thousand dollars shall be invested in hypotheques, or other approved securities, in the joint names of H. Cotte and Thomas W. Ritchie, Esquires, in trust to pay the interest upon such investment during the period extending from this date to the thirty-first December, one thousand eight hundred and seventy-seyen, to the plaintiff, at the rate of five per cent, per annum, payable semi-annually, and to transfer the capital to him (the plaintiff) or his representatives at the expiration of that time, provided no action shall have- been brought by the representatives of the late Christiana Harmer against Mr. Pinsoneault or his representatives for or in respect of any of the rents, monies, or matters or things mentioned in the Declaration of this cause, or under and in virtue of the will of the late General Cliristie ; and provided any such action has been brought, that it shall have been finally dismissed or disposed of ; and if any such action is instituted, then Mr. Pinsonneault shall pay the interest of five per cent, to the said trustees, who shall deposit the same under the above trust to await the final decision of this action. " 3. If at the expiration of the said time (on the thirty-first Decern- 962 PRIVY COUNCIL King ^^^> °^^ thousand eight hundred and seventy-seven) such an action shall * be pending, the capital shall only be paid upon the same being finally dis- nault. missed. " 4. If such action shall be brought within the said period of seven years, and shall be finally decided againgt Mr, Pinsoneault, the invest- ment of the said sum of fifteen thousand dollars shall be transferred to Mr. Pinsonneault together with the interest added thereto. " 5. If Mr. Pinsoneault prefers it, the sum of fifteen thousand dol- lars may be deposited in any chartered bank of this city selected by him, in the names of Mr. Cotte and Mr. Ritchie, subject to the foregoing trust. " Montreal, June 4, 1870. " (Signed,) Alfred Pinsoneault. R. Laflamme, " Attorney for the said J. S. King. " The agreement, which, in the language of the Canadian law, is termed a " transaction, " though made on the 5th of June, is dated on the 4th. Mr. Laflamme, after the signing of the agreement, gave the defendant a letter addressed to Mr Cassidy, his counsel and attorney to the effect that the cause was stayed and the foreclosure removed '' jusqu'a nouvel avis." Mr. Laflamme deposes that he had authority from the plaintiff to enter into this agreement, and that he so informed tlie defendant ; and it is manifest that the defendant at the time supposed that he had such authority. On the next day the defendant's legal advisers satisfied him that the agreement he had made was an improvident one, and intimated their opinion that the plaintifi' had no cause of action. On the 10th of June the defendant executed a notarial instrument revoking the agreement, on the ground (among others) that it had not been accepted by the plaintiff, which instrument was served on that day on Mr. Laflamme. On the 11th of June plaintiff wrote and sent a letter to the defend- ant, notifying that he was prepared to carry out the agreement and to desist from the action on the payment of the 30,000 dollars as therein provided. From this time the plaintiflf attempted to enforce the compromise, and the defendant to resist its enforcement, by all means in their power. The defendant sought to put in pleas to the action, and succeeded in spite of the plaintiff's opposition on the ground of the settlement. The plaintiff prayed for judgment in the action, in the terms of the compromise, but this was refused on the ground that the defendant had been admitted to plead. In January, 1871, the plaintiff commenced a fresh action on the PRIVY COUNCIL 963 agreement or " transaction " of the 5th of June, 1870, averring his own j^^^g readiness to perform it, and offering to perform it, and praying that the & ■ defendant might be compelled to perform it. This action is the subject I'laiat.' matter of the present appeal. The main grounds of defence raised by the pleas to the action were in substance— 1. That the action was not maintainable during the pendency of the original action, because they were for substantially the same cause ; or, if that were not so, that the discontinuance of the first action was a con- dition precedent, under the " transaction," to the bringing of the second. 2. That the proceedings by which the defendant had been admit, ted to plead in the original action, and the motion of the plaintiff for judgment in terms of the compromise had been rejected, were, in effect, a judgment adverse to the plaintiff's right to enforce the " transaction." 3. That the " transaction " was not intended to be final, but to be conditional on its ratification by the Court. 4. That Mr. Laflamme had not authority to make it. 5. That the defendant was entitled to be relieved from it on the ground of mistake or surprise or fraud. The three last, with some other grounds, were taken by the same (the third) plea. These questions, after a multiplicity of pleadings and interlocutorj' proceedings which it is needless to particularize further, came before the Superior Court, when judgment was pronounced by Mr. Justice Beaudry. That judgment is to the effect that the peri'lenoy of the first suit is not a bar to thie maintenance of the second, and that the defence in the nature aires judicata raised by the second plea also failed, but that the suit should be dismissed on the ground that Mr. Laflamme had not suf. fioient general authority, as Attorney and Counsel in the case, to bind his chent by the agreement in question, and that no special authority had been proved, and that the ratification by the plaintiffof the IJth of June after the defendant's repudiation of the 10th, was too late. On the appeal to the Court of Queen's Bench that Court held — 1. That the second action was not maintainable as long as the first was pending. 2. That, although the plaintiff might have enforced the " transac- tion" in the first action, he had not done so by the proper pleading. The reasons of this Judgment are thus stated by Chief Justice Duval : — " I express no opinion on the validity of the settlement pleaded, but I hold that no separate action can be brought on it, pending the first action instituted. King ought to have discontinued his first action brought, before instituting the present, or to have pleaded this as an in'cident to the first." 964 PRIVY COUNCIL jjjjj The Court thereupon confirmed the Judgment of the Court below * but not for the reasons therein alleged, " reversing liberty to the defend- nault. ant to resort to any means he may be advised for the purpose of putting in force the transaction. " In giving this Judgment the Court was far from being unanimous. Judges Taschereau and Monk dissent from it, holding that the ac- tion was maintainable, and the Plaintiffs were entitled to succeed upon the merits. The judgment is that of Chief Justice Duval, Judges Polette and Badgley, the latter of whom, though subscribing to the judgment, and holding that the action was not maintainable pending the former action, doubtted whether "the transaction" was not properly pleaded in the first action, and, expressing a regret in which their lordships sympa- thize, that the Court having all the evidence before them for deciding the merits should feel themselves unable to do so, gives his own. opinion in favor of the defendant. Their lordships concur with the Superior Court and with Judges Taschereau and Monk that the pendency of the first action was not a bar to the institution of the second. The actions were not for the same cause. The first action was brought against Pinsoneault and Hamilton, for the purpose of setting aside a deed of 1839, and obtaining an account of the full amount of the sum received by Pinsoneault with payment thereof ; or, in default of such account and payment for damages. The second action was brought against Pinsoneault alone to enforce an agreement of 1870, and not only to obtain payment of a sum of money, but to enforce the settlement of another sum upon trusts wholly outside of and collateral to the first action. Nor was the discontinuance of the first action a condition pre- cedent under the agreement to enforcing that agreement by action. The performance by the parties of their parts of the agreement respec- tively, were, in their lordship's opinion, concurrent conditions, and this being so, it was sufficient for the plaintiff to aver in his declaration that he had been and was ready and willing and that he offered to perform his part, viz., discontinuance of the first action on the defendant per- forming his part of the agreement. Their lordships are further of opi- nion that he has no made step inconsistent_with this averment, and they find that it is proved in fact. Although the form of procedure differs in England and Canada, some observations of the vice-chancellor Turner in Askey v. Wellington (9 Harp, 65) are applicable in principle and in reason to the present suit. The vice-chancellor observed that some which he referred to " appear to establish that, at least in cases where the compromise goes beyond the ordinary range of the court in the existing suit, and the right to enforce the agreement in that suit is disputed, the proper course of proceeding for enforcing it is by bill for specific performance, and not by motion or petition in the original suit to stay the proceed" PRIVY COUNCIL 965 ings, and I think that & fortiori, this must be the case where the agree- „. ment itself is disputed." It may be collected that the putting an end to . & the original suit in that case was not deemed a condition precedent to nault. instituing the second. It becomes, therefore, unnecessary to decide whether or not the plaintiff could have enforced the "transaction" in the first action, or whether, if he could, he has taken the proper steps for doing so. For these reasons their lordships are of opinion that the Court of Queen's Bench were wrong in declining to give judgment on the validity of " the transaction ; " it becomes, therefore, their lordships' duty to determine this question, and to give the judgment which ought to have been given by the court of Queen's Bench. The objection that the " transaction " was not intended to be final, but was subject to some act of confirmation by the Court, is not noticed by Mr. Justice Beaudry, who seems to have thought his finding on the want of authority sufficient to establish the third plea and to dispose of the suit. Their Lordships have no doubt that it was intended to be final. The next important question that arises is whether or not Mr. Laflamme had authority to bind his client by it. This question again divides itself into two : — 1 . Had Mr. Laflamme sudh authority by reason of his being counsel and attorney (avocat and avoue) in the case ? 2. If not, had he express authority from the plaintifi ? Their Lordships do not consider it necessary or desirable for the de- termination of the first of these questions, to inquire into the extent of the authority to settle causes of counsel, attorneys or proctors, in this country, founded, as it is, upon laws and customs in a great degree pecu- liar to ourselves. The law on this subject must be looked for in the Canadian Code, interpreted, if its provisions are obscure, by the aid of what light can be thrown upon them by the French law. Mr. Justice Badgley, in his learned judgment, intimates an opinion (as their Lordships understand him) that the " transaction " was inva- lid, because it was not given effect toby a " jugement d'expedient, " and in support of this view he quotes the following passage from Pigeau (1) Procedure Civile, pp. 9 and 359) :— "On pent transiger en justice en passant un jugement de concert qui ordonne ce dont les parties sont convenues ; cela se fait tres frequemment au Chatelet de Paris ou Ton appelle cette voie expedient. On dresse le dispositifdu jugement sur papier ojdinaire, les procureurs le signent et le font signer a leurs clients lorsqu'ils n'ontpas depouvoir de ceux-ci, et ne veulent pas prendre sur eux de signer sans pouvoir, a cause de I'unportance de I'affaire. " The " transaction " by " judgment d'expedient " with its formalites which was only one form of " transaction " according to the French law, has not been adopted or recognized in the Canadian Code, which 966 PRIVY COUNCIL King *^°®^ ^°^ require that a " transaction " shall he in any particular form, PiDPon- ®^®" ^^ ^^ consists in assenting to a judgment. The passage from Pigeau, nauli. however, is not unimportant as bearing on the general authority of pro- cureurs — for, if they have not authority to consent to a judgment, it may be argued that they cannot have the power to settle a cause, and to abandon or compromise the rights of their clients without one. Mr. Laflamme was both " avocat " and " avoue.'' It does not appear, however, that tho law gives him any greather authority in his former than he had in his latter capacity. If he had any power analogous to that of a counsel in England, to settle a cause " in Court," it is enough to say that it was not this power which he exercised ; his power was merely that of an '' avoue ". No French authority has been cited which goes the length of as- serting that an " avoue '' has a general power to bind his client by a " transaction " such as the present, and some French authorities have been cited which it is contended establish the negative of this propo- sition. Much reliance has been placed by the Counsel for the defendant on a passage from Dalloz's " Eepertoire de Jurisprudence " (Transaction, Art. 4, s. 57), which runs thus : — " Un mamiataire a t-il le droit de transiger au nom de son mandat ? La negative resulte clairement de 1' Article 1988, Code Nap., a moins que la procuration ne confere expressement ce pouvoir au mandataire. Le mandataire charge pour une seule affaire ne peut transiger sans un pou- voir expres." Article 1988 of the " Code Napoleon ' is almost identical with Arti- cle 1703 of the Canadian Code, which is in these terms : " The mandate may be either special for a particular business, or general for all the affairs of the mandator. When general it includes only acts of administration. For the purpose of alienation or hypothec- ation, and for all acts of ownership other than acts of administration, the mandate must be express.'' It has been argued that if the inability declared by the French Code to alienate and hypothecate without express powers carried with it the inability to " transact, " the same words in the Canadian Code must have the same efiect. The plaintiff seeks to explain this passage as referring only to the powers of ordinary mandatories, and having no reference to " avoues, " who are mandatories with extraordinary and exceptional powers. If, however, a class of mandatories so well known do possess this excep- tional power, the omission of all notice of it in the place where notice of it would have been appropriate, or, indeed, in any part of the exhaustive treatise ofDalloz concerning "transaction," is not a little remarka- able. The same doctrine is laid down in other books of authority. PRIVY COUNCIL QGT InGuyot's " Eepertoire de Jurisprudence " (Vol. 17, transaction, p. 235) this is said ; — &° " Un procureur ou mandataire peut-il transiger au nom de son com- iaiilt.' mettant 1 II le peut sans difficulte, si la procuration lui eut donne ex- pressement le pouvoir; mais dans le cas contraire toute espece de trans- action lui est iuterdite. " The same doctrine is laid down by Troplong (" droit Civil Expli- que, " sec. 295), and by other writers on French law, without the sup- posed exception being ever noticed. Undoubtedly '• avoues" possess some powers beyond those of ordi nary mandatories of binding their principal unless acts are expressly disavowed. This subject is treated of at some length in Dalloz's Eepertoire de Jurisprudence ' (Desaveu, Section 3, Article 25), where many instances of such powers are given, not, however, including the power " to trans- act. " It is also treated more succinctly in Dalloz's " Dictionnaire de Jurisprudence," tit. Desaveu. It is there said that in general every act of a mandatory is void which exceeds the bounds of his mandate, but that it is otherwise with mandatories ad litem, who are in some sense ofiBcers of justice representing citizens before the tribunals in the exer- cise of their profession. He thus sums up the law : " en eftet, jusqu'a desaveu tout acte de ministere de I'avoue, mandataire ad litem, quelles que soient les consequences qu'il entraine, est repute fait en ve^'tu du pouvoir de sa partie. " It appt ars to their Lordships that full effect may be given to the meaning of these expressions by treating the " avoue " as able to bind his client (until " desaveu "] by any proceeding in the cause, though taken without his client's authority, or even in defiance of his prohibi- tion. The plaintiff is assumed to have authorized every claim made on his behalf in the declaration, the defendant every plea pleaded for him ; for example, a plea of the statute of limitations, or a plea justifying a libel — though he may have prohibited their 'being pleaded. An illus- tration of this doctrine is afforded in the present case, where the plain- tiff must be taken to have authorised his claim being based on a false statement of the age at which Miss Harmer died, although he may pos- sibly have disapproved of it. Such would appear to be the view taken of this subject by the framers of the Canadian Code of Procedure, Arti- cle 195 of which is in these terms : — " A disavowal can only be made by the party himself or his attor- ney, under a special power, and the party himself must declare that he did not authorise the act of procedure which he repudiates." Their Lordships are of opinion that to enter upon an agreement such as " the transaction " in question, which was in a great measure I collateral to the cause, and was capable of being made the subject-mat- ter of a separate suit, cannot be properly termed an act of procedure in he cause. 968 PRIVY COUNCIL -,. ^ Their Lordships have not discovered in the Canadian codes any &° provision conferring upon " avoues " the power of entering into tran- nault. saotion if they did not before possess it. The subject of " mandate " is treated of under the 8th title in five chapters. Article 1703, which has been above referred to, applied to all man- datories, general and special. Article 1704 is in these terms : — " The mandatory can do nothing beyond the autority given or im - plied by the mandate. He may do all acts which are incidental to such authority and necessary for the execution of the mandate." And the application of this rule to professional men of various classes, including " avoues, " is provided for by Article 1705 — " Powers granted to persons of a certain profession or calling to do anything in the ordinary course of the business which they follow need not be specified, they are inferred from the nature of such profession or calling." The only mention of " avoues " in the chapter is contained in Article 1732 :— " Advocates, attorneys, and notaries are subject to the general rules contained in this title ("mandat") in so far as they can be made to apply. The profession of advocate and attorney is regulated by the provisions contained in an Act intituled ' An Act respecting the Bar of Lower Canada, ' It has been admitted that the power contended for is not to be found in this Act, There are nine articles in the Code under the head " transaction, " none of which appear to have any material bearing on the subject now under discussion. It does not appear to have been the intention of the framers of the Code to invest " avocat " or " avougs " with any new or exceptional powers, but rather to apply to them the general law with respect to mandatories as far as it was applicable. In their Lordships' opinion Mr. Laflamme had not authority, by reason of his being " avocat " and " avoue " to bind his client by this " transaction." If this be so, the next question is whether any special authority to make this " transaction " has been proved ? It has been admitted that such special authority need not have been in writing. The evidence relied upon by the plaintifi on this subject is to be found in an affidavid made by Mr. Laflamme in the original suit, which may be referred to inasmuch as it has been put in evidence by the plain- tiff in which Mr. Laflamme states : — "The defendant then and there signed the same (the transaction), together with this deponent, on be- half of plaintiff, hy whom he was fully authorized." And in his depo- sition as a witness for the defendant, "Je lui dis alors ce que mon client consentirait &, accepter, que j'etais autorise a regler sur ces bases. " PRIVY couxc'ir. 969 Nq qu>ions were put to Mr. Laflamme by the plaintiff. In their Lordships' opinion these allegations are consistent with a &^ belief which Mr. Laflamme may have bona fide, entertained, that his ^'"u?"' character of " avoiie " gave him authority to conclude the " transaction " Mr. Laflamme must have been aware of the importance to his client of proving a special authorization, and if such had been given, he might and probably would have been called by the plaintiff to prove it. Called by the defendant, he might still have proved it by putting in the written authority, if the authority were in writine, or, if it were given by a ver- bal communication, by stating the effect of that communication, and where and when it was made. But Mr. Laflamme makes no mention of any special authority, and in absence of such mention their Lordships cannot assume it. There being no evidence of special authority, it becomes unneces- sary to deal with the argument on the part of the defendant, that, although the special a'lthoiity need not have been in writing, still that the proof of it, or, at all events, the commencement of proof, must have been in writing, and that no such commencement has here been shown. It has been contended further, on the part of the plaintiff, that even assuming Mr. Laflamme not to have been authorized, still the de- fendant, having treated him as authorized, could not recede from his agreement, until a reasonable time had elapsed for the ratification of Mr. Laflamme's act by his principal ; and, in support of this proposition a passage from Toullier has been quoted. It is enough to say that, assuming this to be Canadian law, of which their Lordships are by no no means satisfied, in their opinion more than a reasonable time for ratification of the " transaction " by the plaintiff' had elapsed, before it was repudiated by the defendant. The decision which their Lordships have come to on the question of authority disposes of the cause. It therefore becomes unnecessary to determine the further question which would have arisen had their decision on this point been otherwise, whether the defendant is enti- tled to relief from the agreement on the ground of mistake, surprise, or fraud, and their Lordships are spared a somewhat painful investigation into many circumstances which it has been unnecessary to notice Their Lordships will humbly advise Her Majesty to reverse the Judgment of the Court of Queen's Bench, except so far as it affirms that of the Superior Court and condemns the appellant in the costs of the Appeal ; and to direct that that Appeal do stand dismissed and the Judgment of the Superior Court affirmed in all respects with the costs pf this Appeal. Mr. Fry, Q. C, and Mr. H. A. Giffard, Q. C, for appellant. Mr. Bompas and Mr, Kenelm Digby, for respondent. 35 9*70 PRIVY COUNCIL Lambkin PRIVY COUNCIL, 1877. Eastern 1-th December, 1877. Railway Company. Present : The Queen's Mo.st Excellent Majesty, Lord President, Lord Privy Skal, Earl of Derby, Mr. Seokbtaky- Cross, Mr. Tresigbr. . PHILO LAMBKIN v. THE SOUTH EASTERN RAILWAY COMPANY. In February, 1875, P. Lambkin instituted an action before the Su- perior Court, Montreal, against theS. E. Railway Company, for the recov- ery of MOjOOO damages suffered from the injuries .sustained by him on or about the 13th August, 1874, through the negligence of the defendants whilst travelling on their line of railway. (Jn the 13th Sept., 1875, the cause came up before a Special Jury, which unanimously awai'ded the plaintiff a verdict assessing his damages at $7,01)0. On the 23rd Sept., 1875, the plaintiff made a motion before ihe Court of Review for a judg- ment in conformity with the verdict. The Court of Review unanim- ously granted this motion, entered judgment on the verdict, and rejected the defendant's motion asking for a new trial. The defendants appealed to the Court of Queen's Bench from that judgment, and on the I6ih March, 1877, the Court of Appeal reversed the judgment of the Court of Review and ordered a new trial. On the Uth June, 1877, the plaintiff moved the Court of Queen's Bench for leave to appeal to Her Majesty in Council. This motion was rejected on the 15th June, the Court giving, as the reason of its refusal, that the judgment of the Queen's Bench was an interlocutory judgment, from which there could be no appeal to the Privy Council. The appellant then applied directly to the Privy Council for special leave to appeal. The Lords of the Committee having reported to Her Majesty as their opinion that leave ought lo be granted to appellant to enter and prosecute his appeal from the judgment rendered on the motion of the defendants for a new trial. Her Majesty was pleased, by and with the advice of Her Privy Council, to approve thereof, and to order that the said Philo Lambkin be allowed to enter and prosecute his said appeal, upon depositing in the registry of the Privy Council the sum of £300 sterling, as security for the costs of the respondents, in case the appeal should be dismis.=ed, and the registrar of the Court of Queen's Bench at Montreal is hereby directed to transmit to the registrar of the Privy Council, without delay, authenticated copies of the record, etc., etc. Appeal allowed. Pek Curiam. This is an action brought against the South-Bastern Railway Company of the Province of Quebec to recover damages which the plaint'ff sustained by reason of an accident to a train in which be was a passenger. The plaintiff obtained a verdict with damages $7,000. ^ PRIVY COUNCIL 9'7l Tlie Railway Company, applied to the Superior Court of Montreal for a ^^mbkln new trial upon a number of grounds, including misdirection, the verdict „ *jjj being against evidence, and the damages being excessive. That Court Eastern , unanimously expressed themselves satisfied with the verdict, and refused company, a new trial. Upon this the defendants appealed to the Court of Queen's Bench. The Court of Queen's Bench, as their Lordships understand, expressed their approval of the verdict, or, at all events, expressed no disapproval of it upon any ground except thit of excessive damages ; and upon that ground alone directed a new trial. From that judgment of the Court of Queen's Bench the present appeal is preferred. It has been sought to uphold the judgment upon grounds other than that on which it was pronounced — viz., that the verdict, in as far as it finds negligence on the part of the Company, is against evidence, and that the judge misdirected the jury. With respect to the verdict being against evidence, it appears to their Lordships, as indeed they have be- fore intimated, that the question of negligence, being one of fact for the jury, and the finding of the jury having been upheld or at all events not set aside by the two Courts, is not open under the ordinary practice to the defendants. However, the defendants have argued, as they had a right to argue, the question of misdirection ; and the direction of the learned JuiJge cannot be considered altogether apart from the evidence to which it applies. Witliout going at length through the evidence, it is enough to say that the plaintift was a passenger on the 13th of August, 1874, on the defendants' railway, and that the accident occurred at a point between the station of Abeicorn and the station of Sutton, the distance from one to the other being about 5^ miles ; that the line between the two sta- tions is intersected by a number of streams, which are all spanned by bridges, and at times, perhaps generally, contain but little water, but are apt to be flooded after storms. It appears that on the evening before the accident, the 1 2th August, a violent and most unusual storm had occurred, perhaps in the nature of a water-spout, which carried away five of the six bridges between the two stations. The next morning, at half past six, the train in which the plaintiff was travelling dashed into the bed of one of these streams, of which the bridge had been demolish- ed, without any warning whatever having been given to the driver of the train. The result was that some persons were killed and many in- jured — the plaintiif among them. It was the duty of four men, headed by one who is sometimes called " the boss," to look after the railway between these two stations, a part which would appear to require more than usual care and attention. It was the duty of these men, upon the occurrence of the storm, aud some of the bridges being washed away to their knowledge on the previous evening, to use all exertions in their power to stop the train whicn was coming in the morning. Of two of these men we hear nothing. A third, Doran, who lived at a house rather 972 PRIVY COUNCIL Lambkin ™°''® ^^^^ a mile from Sutton, was called ; and lie speaks of a bridge i 4 close to his house being carried away, and of his apprehension that other South , . , ,,, .", , •" , ^^ . , ,. Bastern bridges would be earned away, and says that upon startmg on the Ime Compa^. ™ *^® direction of the Abercorn station in the morning at about four o'clock he was unable to proceed. He then went to' the Sutton station, and requested the station-master to telegraph to Abercorn, but it was ascertained that the telegraphic communication was interrupted. Doran who had borrowed a horse, returned to his own house and planted a flag at the place where the bridge opposite to his house had been demohsh- ed ; but instead of riding on to ascertain the state of the bridges between his house and Abercorn, he put tfte horse up and contented himself with remaining where he was. It appears to their Lordships that the jury might have come to the conclusion fairly upon the evidence, that if he had ridden on he might have arrived at the place where the accident occurred in time to stop the coming train. White, the foreman or " Idoss," was not called. He appears to have done but little. He was aware, according to some evidence, that one of the bridges had been washed away as early as four o'clock in the morning. He appears to have made no effort to go beyond the bridge at Doran's house. The time he arrived there is not very clearly fixed. If it was, as Doran says, at a quarter before six, he would have had time to stop the coming train, which, although due before, did not arrive till half-past seven. Whether he was there at the time or not, it appears to their Lordships that upon the evidence the jury were warranted in the conclusion that he was guilty of negligence. The summing up of the learned Judge must be taken with refer- ence to the circumstances of the case and to the evidence. The follow- ing passage has been picked out and objected to : ' First of all, was " there time to give notice ? That, of course, is easily answered ; there " was time. Then, was there a possibility of doing it ? That is the ques- " tion." Their Lordships have read through the summing up of the learned Judge ; and although he may not have explained the law quite as clearly or fully as might have been desired, they are unable to see that he has misdirected the jury. He appears to have put them as a question of fact whether there was time for either of the men to have got to to the place of the accident so as to stop the train ; and further, whether, if there was time — that is, if there had been time under ordi- nary oircumsiences — there were physical obstacles, such as the unusual depth of the intervening streams, which would have prevented it ; for, undoubtedly, during a portion of the night all the streams were so deep as to be scarcely passable, whereas in the morning the mountain flood "had subsided almost as rapidly as it had arisen. The duty of the servants of the Company must be taken with reference to the emergency ; and the jury might be properly told that those persons who had charge of the line ought, and were bound, to do all they could to stop the train PEIVY COUNCIL 973 which was rushing on destruction. It appears from the summing up, ^ taken as a whole, that the learned Judge, when using the word " possi- *"a *° bility," meant to put to the jury whether all was done which was reason- Extern ably and practically possible under the circumstances of the case. Their c^^'J,^*J^ Lordships, therefore, are of opinion that there was no misdirection. "We now come to the question whether the damages were excessive- It appears that the plaintiff was found soon after the accident with his. head jammed between two pieces of timber ; that it took two or three men to release him, which was done by cutting away the timber ; that he was then conveyed to Kichford, a place at no great distance, and was attended to by two or three surgeons, among others, by a surgeon of the company. The surgeon who first saw him, or at all events who saw him very soon after the accident, is a Mr. Fassett, who thus describes his in- juries : — " The wounds upon the face were— a cut upon the right side of " the lower jaw; and above that, near the ear, there seemed to be a " bruise. Upon the forehead, near the right, was a cut ; it seemed to " be simply a cut. Over the left eye there was a severe bruise, which '• seemed to have been caused by pressure rather than a blow. That was " the idea it gave me on examining it. The wound on his thigh was a '■ lacerated and punctured wound. He lay upon the bed, apparently " not noticing things around him, restless, tumbling about, not heeding " anything apparently that was going on." He goes on to say that the man was from time to time delirious, and adds: — " I think I gave an " opinion at the time atRichford that his condition was dangero'is then, " and if he recovered at all he would probably not fully recover, and I "am still inclined to favor that opinion." He attributes the injury of the brain to pressure, his theory being that the two sides of the skull were to a certam extent pressed together. The plaintiff was attended by Mr. Hamilton, a surgeon employed by the 'company to take care of the wounded, and he gives a description of the state of the plaintiff not materially different from that of the last witness. He says the plaintiff WHS delirious for two or three weeks when he attended him ; that he was subsequently removed, and that he had seen but little of him be- ween the time of the accident and the time of the trial, which was just twelve months. He expresses no very confident opinion about his state. He thinks he may recover, but will not undertake to say that he will, or to fix any probable time for the recovery. We have further the evidence of Dr. Gibson, the medical attendant of the (ilaintift, who speaks of him as being in a very dangerous state at Richford, so dangerous that at one time his life was despaired of He does not speak to having attended him very much subsequently, for his physical health appeared to have improved, and he savs very candidly that he thought medicine would do him little good ; but he speaks to having had a conversation with him shortly before the trial, from which it would appear that his Ibrain was still affected ; not that he was idiotic or insane, but that his ^H PRIVY COUNCIL lAmbkin ''onversation was rambling, and that he was unable to fix his ideas upon „ * , any subject or to attend to business. This witness also declines to give Eastern an opinion as to whether the man would ever thoroughly recover, Cmnpany. although possibly he might recover. There is a considerable body of evidence. The plaintiff calls his brother, his cousin, and some neighbors, the effect of whose evidence may be shortly stated to be that the plaintiff was in partnership with his brother, the plaintiff being the elder and the more active partner ; that they carried on business as builders, and that the plaintiff did the work of an architect,— was capable of designing a house or public build- ing and seeing to the execution of his design ; that they carried on busi- ness as manufacturers of cabinet and other articles ; that the plaintiff also, being an ■ ctive and industrious man from time to time charg>^d -$3 or $4 a day for his own work, in addition to the profit on the work of the laborers he employed and on his materials; and that the two brothers were making some $5,000 or 56,000 a year. The evidence, though not perhaps as conclusive as might be desired on this subject, is to the effect that the business had to a certain extent suffered. The brother said that he had to refuse some orders which otherwise he would have accepted ; there is evidence on his part, and also that of the neigh- bors, of the business having fallen off; it is obviously probable that the business would fall off, moie perhaps in future years that at once. There is further evidence that the plaintiff, although befoie the accident a strong vigorous man, with much capacity for business, became incapaci- pated for business ; that he was we ik and languid in physical health, and unable to fix his attention continuously upon one subject, from the time orthe accident up to the time of the trial. One witness, a director of the company, who can scarcely be supposed to be biassed against them, says: " I have tried to talk business with him lately. I did not " find him the same man that he used to be. If he goes to talk about " business, he wanders directly and he gets astray. I cannot say but " this must affect his fortune. He has not been engaged in building " since the accident. I do not think he was able to do so." On the part of the Company Dr. Scott was called, who said he did not think that the symptoms complained of by the plaintiff could arise from compression of the skull, inasmuch as he thought that, at the age of the plaintiff, the skull would not be compressible without fracture. The further effect of his evidence appears to be that he thought, from the description which he had heard of the injuries, that the plaintiff ought to have recovered ; therefore that he had recovered, and therefore that he must be feigning illness. He says that, without having seen the plaintiff, he is as confident in his opinions as if he had seen him, a con- fidence which appears to their Loidships to contrast unfavorably with the caution with which the evidence of the other medical men is given. Assuming the jury to have believed the evidence on the part of the PRIVY COUNCIL OJS plaintiffs, their Lordships think that they would have been wrong if they lambkin had conKned the damages, which they had to assess once and for all, * solely to what the plaintiff had lost at the time of action brought or at Rastepn the time of the trial ; that it was their duty to take into consideraticwi company, that the plaintiff had been disabled for twelve months ; that he had not ihen recovered, and thatit was doubtful, according to the best evidence, whether he would recover at all, or if he did recover, when he would re- cover ; and although an estimate of future damages must necessarily be of somewhat rough and speculative character, still they were bound to give him some damages in respect of the future loss which he would sustain. The learned .Judg-s appear to have directed a new trial upon the Supposition that the jury only gave damages in respect of what the plaintiff had lost at the time either of action brought or of the trial, and that those damages are excessive. Such is the view certainly of Mr. Justice Sanborn, who says : " It is impossible that three or four weeks' " illness and more or less loss of time for some months of a man who " earned four dollars a day could occasion a loss of $7,000." Their Lord- ships may observe that Mr. Justice Sanborn seems not to have been quite correct in estimating the loss of the plaintiff as of a mere labourer who earned $i a day, inasmuch as the evidence is that the plaintilf not only earned W a day in addition to the profit upon his workmen and materials, but carried on business as a manufacturer. It appears to have been inferred that the jury itended to assess damages only up to the time of the trial, from their answer to one of the questions put to them in the articulation of facts. But their Lordships are by no means satisfied that such was the intention of the jury. They are first asked : — " Has the plaintiff ever since the said accident been disabled from " doing business, and to what extent is he disibled from attending to *' business? Answer. — He has been disabled up to the present time;" — that is to say, they did not think him cui'ed. Th»-n the question is put, which divides itself into three; — '-Is the plaintiff' the head of a "family compose'l of his wife and three children ? Are they all depen- " dent upon his labour for their maintenance ? Have they ever since " been deprived of his labour, and to what extent in the future will they " be deprived of his labour ! Answer He is the head of a family con- "*' sisting of a wife and three children ; one, a son is not dependent ; '' wife and two girls dependent." The answer to the second part of the ■question is : " They have been deprived ;" and the third, the jury answer that they could not form a judgment. Their -Lordships -searceiyundeEstand on what principle this jquestion should have been put to the jury. The question in the cause was not what damage has been sustained by the plain fifth's wife and children, but what damage had been sustained by himself. If he had been killed, and such an action as that brought under Loid Campbell's Act in this 9T6 PKivr COUNCIL Lambkin country could be maiatained in Canada, then the question would be & what damage was sustained by his wife and children. But the jury are Eastern further asked, " To what extent in the future will " the wife and Com^ny. children be deprived of his labour ?" It had been originally proposed to put the question in the form ; — " For what time, under " probable cir- cumstances, or in all probability, " would they be deprived ?" But on the defendants' objectioa the question stands in its present form, and the jury are required to fix the time when the plaintiff will recover. They declined to do what no wituess, medical or otherwise, liad attempt- ed, but their Lordships did not therefore infer that when they answer the further question, " lias the plaintiff suffered damages by the said " accident, and, if so, to what amount ?" they excluded all considera- tion of future loss. If they had thought that the plaintiff would be dis- abled for all the rest of his life, in their Lordships' view the damages would be too small ; but if they adapted the intermediate view, which seems to be, on the whole, the result of the evidence of the plaintiff's witnesses, medical or otherwise, that the plaintiff had been seriously in- jured, that he still continued to sufler, that his brain still continued somewhat affected, that he was unable to attend to business, and that it was uncertain whether he would ever reoovor, although he might recover, their Lordships feel unable to say that ,the damages given were so ex- cessive as to justify a new trial upon that ground. They observe that the law of Canada, as expressed by the article 426, section 11, is not far ditV ferent from that of this country upon this subject ; " If the amount "awarded be so small or so excessive that it is evident the jury must have " been influenced by improper motives, or led into error,'' then a new;, trial must be granted. On the whole, their Lordships are by no means satisfied that the damages are of such an excessive character as to show that the jury have been either influenced by improper motives or led into error and they are of opinion that there ought to be no new trial. Therefore, their Lordships will humbly advise Her Majesty that the judgment of the Court of Queen's Bench be reversed, that the judgment of the Superior Court of Montreal be affirmed, and that the Appellant have the costs of the Appeal in Canada and of the Appeal to Her Majes- ty in Council. PRIVV CiiGNCIL 9t7 I\ THE PRIVY COT'XCIL. Lambe r.i.1 T 1 1DO- Bank Of '.• t h July 1 88 ( . Toronto; Before Loud IIotuior.M.:, Loitu Mac.vacjhten', Sik ISarxk^ Pkacook and SlU BlCHAUD COL'CU. THE BANK OF TOEONTO et al r. LAMBE. Lord Ilobhouse delivered judgment in the above joint appeals, , dismissing the appeals with costs. His Lordship said : These appeals raise one of the many difficult questions which have come up for judicial discussion under those- provisions of the British North America Act (1867) which apportion legislative powers between the parliament of the Dominion and the legislatures of the provinces. It is undoubtedly a case of great constitu- tional importance, as the appellants' counsel earnestly impressed upon their lordships. But questions of this class have been left for the decision of the ordinary courts of law, who must treat the provisions of the act in question by the same methods of construction and exposition which they applifd to other statutes. A number of incorporated banks are resisting payment of a tax imposed by the legislature of Quebec, and four of them are the present appellants. Dealing first with the case of the Bank of Toronto, which was argued first, — in the year 1882 the Quebec legislature passed a statute intituled " An act to impose certain direct taxes on certain commercial corporations,'' by which it was enacted that every bank carrying on the business of banking in the Province, everj^ insurance ■company accepting risks and transacting the business of insurance in the province, every incorporated company carrying on any labor, trade •or business in the province, and a number of other specified companies, should annually pay the several taxes thereby imposed upon them. In the case of banks the tax imposed was a sum varying with the paid-up capital, and an additional sum for each oflfice or place of business. The appellant bank was incorporated in the year 1855 by an act of the Parliament of Canada. Its pricipal place of business is at Toronto, but it has an agency at Montreal. Its capital is said to be kept at Toronto, from whence are transmitted the funds necessary to carry on the business at Montreal. The amount of its capital at present belonging to persons resident in the province of Quebec, and the amount disposable to the Montreal agency, are respectively much less than the amount disposable elsewhere. ' The bank resisted payment of the' tax in question on the ground that the Quebec legislature had no power to pass the statute which imposed it. Mr. Justice Eainville, sitting in the Superior Court, took that view, and dismissed an action brought by the Government officer, who is the present respondent. The Court of Queen's Benc'i, by a 978 PRCVY COUNCIIi Lambe m^ijority of three judges to two, took the contrary view, and gave the * then appellant (the present respondenti a decree. The case comes Toronto, on appeal from that decree of the Court of Queen's Bench. The principal grounds on which the Superior Court rested this judgment are as follows : — That the tax was an indirect one ; that it was not imposed within the limits of the j rovjnce ; that the Parliament had exclusive power to regulate banks ; that the provincial legislature could tax only that which existed by their authority, or was introduced by their permission ; and that if the power to tax such banks as tlii.s^ existed, they would be crushed by it and so the power of the Parliament to create them would be nullified. The grounds stated in the decree of the Queen's Bench are twO; viz : That the tax was direct, and that it was also a matter of a merely local or private nature in the province, and so fell within clause 16 of provincial legislation. It was contended at the bar that the provincial legislature could tax only that which existed on their authority or permission, and when the appellants' counsel were proceeding to argue that the tax did not fall within clause 16, their lordships intimated that they would preler to hear first what could be said in favour of the opposite view. All tlie other grounds had been argued very fully and very ably at the bar. To- ascertain whether or not the tax was lawfully imposed, it will be best t „ J B IS as follows : — " Considerant que si la Rue do I'Orme-sec a ete fermee aux voitures a celle de ses extremites q li aboutissait a la dite place, elle est restee ouverte du cote oppose, et se troure encore en communication avec la nouvelle rue de I'Orme-sec, qu'ainsi la dite maison nayant pas ete prJ- vee de son acces a la voie publique, la dppreciation qu'elie aurait pu eprouver ne constituerait point un dommage direct et materiel qui put donner droit a une indemnite, &c. It certainly then appears that in France the depreciation caused te a house by stopping one end of a street, supposing it to remain open at the other, is not regarded as an interference with a servitude, nor (stand- ing alone) such direct and immediate damage as will give a title to in- demnity ; and if this be so, there stems to be no reason or authority for declaring the law to be otherwise in Canada. The authorities referred to leave untouched the question whether, if a street were stopped at both its ends, indemnity would be payable. It is enough to say that should such a case arise, it might possibly be contended with effect that a virtual destruction of the undoubted rights of access to the houses in the street so closed had been occasioned which would give to their owners a title to indemnity. It was further contended for the plaintiff that beyond the mere passage through the street of which the occupiers of his houses were deprived, he had sustained special damage by reason of the loss of customers, who formerly came from the railway station into the street and were now prevented from doing so, and that thus the value of his houses for the put pose of the particular trades carried on in them was depreciated. But it is to be observed that there was no authorized road from the railway station to this street, and the people who eame into it from the station did so in an irregular manner, and by passing over the lines and works of the railway, in contravention of the bye-laws of the Company. This source of profit was obviously of a precarious kind, and cannot be regarded as permanent. The street does not appear to have been much used, being inconvenient, if not dangerous, from the frequent lassing of •railway train^^, and, apart from the custom of the railway passengers, no special advantage seems to have been derived from its being a thorough, fare. French cases were cited to the effect that the loss of customers (unless, indeed, the right of access'as before interpreted is infringed) would not be such a direct and immediate damage us would give a claim to indemnity. (See Dufour, " Droit Administratif applique,"' 275, 277, 333.) A similar decision was given by the House of Lords in Ricket V. Metropolitan Railway Company, L. R. 2 U. L. 175. PRIVY COUNCIL 1011 Whether, if the closing of the street had cut off the plaintiff's houses flavor of rem a place the occupiers had long used in connection with them, as Montreal rom a wharf upon a public river, or had rendered the immediate Drum- approach to the houses difficult or inconvenient, he would have been ™°° ' intitled by French law to indemnity upon the principle on which two Snglish decisions, turning upon facts of the kind just supposed, were letermined, it is unnecessary to consider. But the present case differs rem the supposed ones. The immediate access to the houses is not ibstructed, and the occupiers of them had no special object beyond that if their neighbours in going to the part of the city which lies south of he barrier. Indeed, there is no evidence that any inconvenience was elt on this score, and probably none could have been given, for there appears to be another street, easily accessible to the occupiers of the Jaintiflf s ho ises, by which this part of the city can be reached, and phich whilst only a little further, is probably more commodious, being ess liable to obstructions from the operations of the railway. The grava- aen of the damage, as proved, was the loss of the custom of the railway )assengers already adverted to. No doubt the distinctions on the cases in this subject are fine. The English decisions (which are only referred by way of illustration) as well as the French have been conflicting, md the boundary lines between them are in consequence somewhat adistinct. (See Metropolitan Board of Works v. McCarthy, L. R. 7 H. i. 213. Becket v. Midland Railway Company, L. R., 3 C. P. 97.) One ground of damage complained of is due not to the disconti^ luance of the street, but to the manner of closing it. It is said the )arrier which has been erected darkens the plaintiff's houses. It mny be that the plaintiff has some ground of complaint on this lead, but he has not alleged in his declaration that the win iows of his louses have been deprived of light, but only that the street has been larkened ; nor does the evidence distinctly show a deprivation of light o an actionable degree, nor is such a deprivation found as a fact by the ixperts or the Judges. The great contest in the cause has been as to he damage arising from the suppression of the street, and not that due o the form of the barrier. Throughout Mr. Justice Taschereau's judg- aent, in which that learned .Judge ably supports his own view, there is 10 allusion to loss of light as a substantive grievance. If, however, this ir other damage has been occasioned by the proximity of the barrier t would be recoverable, if at all, under the Corporation statutes. The- mount of damage assessed in the action is, in the main, given in respect floss of custom and the consequent depreciation in the value of the LOuses. The other questions argued turned upon the special Statutes relat- ag to the Corporation. It was contended that these Acts excluded an ction for indemnity, and gave no compensation in cases like the pre- ent. For the plaintiff it was denied that the action was thus excluded, lut it was said that, if taken away, compensation was given. luond. 1012 PRIVY COUNCIL Mayor of Upon the English legislation on these subjects, it is clearly establish- Mootreal ed that a Statute which authorizes works makes their execution lawful, Drum- and takes away the rights of action which would have arisen if they had been executed without such authority. Statutes of this kind usually provide compensation and some procedure for assessing it ; but it is a well understood rule in England that though the action is taken away, compensation is only recoverable when provided by the Statutes and in the manner prescribed by them. In practice it is generally provided in respect of all acts by which lands are " injuriously afieoted " — words which have been held by judicial interpretation of the highest authority to embrace only such damage as would have been actionable, if the work causing it had been executed without statutable authority. In the Canadian Act (23 Vict., c. 72i, authorizing the by-law in ques. tion, no compensation is expressly provided for the damage which may be caused by any of the acts it authorizes to be done. But in a previous Act (14 and 15 Vict., c. 128), provision for compensation is expressly made in two instances. Thus, the power to make by-laws for altering the footpaths or side-walks of any street is conferred subject to the pro- vision " that the Council shall make compensation out of the funds of the city to any persons whose property shall be injuriously aftected by any such alteration of the level of the footpath in front thereof." And the power to make bye-laws for changing the sites of markets and appro- priating the sites, saves to any party aggrieved " any remedy he may by law have against the corporation for any damage he might thereby sustain." The Counsel for the corporation referred to two or three other in- stances of express provisions in former acts relating to this corporation, and also to sets of acts authorizing roads, bridges, and other pubUc works, which provided compensation in express terms, and contended that it might be inferred from this course of legislation that the inten- tion was to exclude compensation, whenever it was not expressly given. On the other hand, the Counsel for the plaintiff relied on the fact that no compensation was provided by the Act authorizing the bye-law in question, although the power it conferred would, it was said, justify an interference with property, and with undoubted servitudes, and also upon the difference between English and French law, arising from the existence of the Article of the Code, and the dissimilar systems of pro- cedure in the two countries. Their contention, in substance, was that the special Acts should be read with and subject to Article 407 of the ■Code in the cases to which it was applicable, and also to the general law which gave, in certain cases at least, a right to indemnity for damage. Whatever may have been the eCect of the special Acts relating to this corporation before the passing of the 27 and 28 Vict., c. 60, they must now be read and considered with it. The Act is indeed a Statute upon expropriations. After reciting in the preamble that much difficul PKIVY COUNCIL 1013 ty was often experienced in carrying out the law in force relating to „ , expropriations for purposes of public utility, it establishes a tribunal Montreal consisting of commissioners for determining the value of property ex- Drum- propriated, and a system of procedure for such cases. Then the 18th "i*""*- section enacts that these provisions shall be extended to. all cases in which it becomes necessary to ascertain the compensation to be paid for any damage sustained by reason of any alteration in the level of foot- ways made by the Council, or by reason of the removal of any establish- ment subject to be removed under any by-law of the Council, " or to any party by reason of any other act of the Council, ybr which they are bound to make compensation." It was contended fc the corporation that this general clause re- ferred only to such compensation as was expressly mentioned in their Statutes, though they could only point to two instances of such com- pensation which could satisfy the words, and these were contained in a Road Act. (36 Geo. III. c. 9), the powers of which were transferred to the corporation. Whilst, for the plaintiff, it was said that if it be held that actions for indemnity are taken away, this sweeping clause ought to be construed so as to comprehend all cases of damage for which, by the general law, indemnity would be due, and as being, in effect, equi- valent to the common clause in the English Statutes containing the words "otherwise injuriously affected." Beading the clause in the latter sense, compensation would be ex- pressly given by it to all who may suffer — to use the English phrase — actionable damage, a provision to this effect, if it be made, would no doubt be equitable and reasonable ; whereas, if it be not made, the scheme of compensation provided by these acts would seem to be defec- tive. Their Xordships, however, do not think it necessary to decide in this appeal the question thus raised ; — since, in whatever manner it may be determined, and whatever may have been the case before the 18th section of the 27th and 28th Vict., c. 60, was passed, they think that this enactment, by requiring that the compensation payable to any party " by reason of any act of the Council for which they are bound to make compensation," shall be ascertained in the manner prescribed by •the Statute, excludes, by necessary implication, actions of indemnity for damage in respect of such acts. It is enough, therefore, to say that. In their view, the corporation, having acted within their powers, the plain- tiffs claim (if sustainable at all) is of a kind which would fall to be de- termined by the Commissioners under the special Act. It may be observed that the question of procedure in cases of this kind is not merely a technical one. This was pointed out in the judg- ment of this Committee in Jones v. The Stanstead Eailway Company. It is there said : " The claim for damages in an action in this form as- sumes that the acts in respect of which they are claimed are unlawful, whilst the claim for compensation under the Eailway Acts supposes that 1014 PRIVY COUNCIL zuond. Mayor oi *^® ^cts are rightfully done under statutable authority ; and this dis- Montreal tinction is one of substance, for it affects not only the nature of the Drum- proceedings, but the tribunal to which recourse should be had." On the whole case, their Lordships find themselves unable to con. cur in the judgment pronounced by the majority of the Judges of the Court of Queen's Bench, and they will humbly advise Her Majesty to reverse both judgments below, and to direct that the action be dismis- sed with costs. The respondent must pay the costs of this appeal. Rouer Roy, Q. C, for the Appellant. E. Barnard for the Respondent. Molson & Carter. PEIVY COUNCIL, 1880. Council Chamber, Whitehall, 27th November, 1880. Present . — The Right Honorable Sir James Colville, the Eight Hon- orable Sir Barnes Peacock, the Right Honorable Sir Monta- ajjE Smith, the Eight Honorable Sir Egbert Collier. MOLSON V. CARTEfi. Sir James Colville : — This is an application for special leave to appeal against an order of the Court of Queen's Bench for the Province of Quebec, of the 22nd June, 1880, which confirmed an order of the Su- perior Court of the 16th November, granting a capias against the peti- tioner under the provisions of the 796th and subsequent sections of the Canadian Code of Procedure. It is obvious that their lordships would not, according to their usual practice, nor could they with propriety, grant special leave to appeal upon a question of this kind, unless they saw clearly that there had been some miscarriage in point of law, or very gross miscarriage in the two Courts, whose concurrent judgments are under appeal, on the matters of fact. Now, without going into the compUcated proceedings that have commented upon in this case, it is sufficient to state that the judgments of the Court below may be taken to have proceeded almost exclusively upon the act of the petitioner, in altering the deposit account of a certain sum of money in the Mechanics Bank, and the facts which led to that were simply these : The defendant borrowed from the plaintiff a sum which may be stated in round numbers at $32,000, ostensibly upon the security of certain property. He paid that sum of money into this Bank in his own name with a sort of special mark. As foimd, in July, 1874, he altered the heading of that deposit account so as to make it appear that the money was his wife's. The Bank became insolvent a PRIVY COUNCIL 1015 tnonth or two latter, but ju which at the time of the expropriation was producing but little, * if any, profit. Montreal. The $245,000 awarded by the learned Judge in addition to the $210,000 awarded by the Commissioners make a total of $455,005, which at 4s* a dollar is equal to £91,000, or upwards of £1,120 an acre for each of the 81 acres, of which some of the witnesses stated that not more than one-half was fit for building purposes. The learned Judge held very properly that the only question before him was one of fact, which must be determined by the evidence given in his presence. The real issue, at it appears to their Lordships, is was there error on the part of the Commissioners in awarding only the sum of $210,000, and, if so, to what extent were the plaintiifs entitled to an augmentation of it? The report of the Commissioners, which under the former law would have been final, must, notwithstanding the alteration of the law, be con- sidered correct until it is proved to be erroneous. The onus of proving error on the part of the Commissioners lay upon the plaintiffs. The judgment of the Commissioners, as expressed in their report, was enti- tled to great weight. It is not in this case merely the judgment of a majority. The report was unanimous, and was one in which the Com- missioner appointed by the appellants themselves concurred. Their Lordships are of opinion that it should not be lightly overturned, and that the learned Judge did not give suflScient weight to it. He treated the question before him as he would have done if he had had to assess the amount of compensation in the first instance. He said he must determine it according to the evidence which he had heard, and by which he considered himself to be bound as absolutely as he would be by evidence proving the items of a tradesman's bill. Treating the subject in that manner, the -opinion of the Commis- sioners had no more weight attached to it than if they had made no re- port at all. In another part of his judgment the learned Judge remark- ed: — " I have to judge according to the evidence. As I view the case, the law no more makes me judge of the value of real estate, apart from the sworn evidence before me, than it makes me judge of the value of pork, or flour, or any other thing of which the value is in question before me. In the one case, as in the other, I can only know what is proved. If this evidence is untrue, it was the business of the defendants to con- tradict it, which they have not done. If it is true, I have done no injustice in acting upon it.'' The learned Judge seems to have taken too narrow a view of his functions. It was his duty to make use of his own judgment and expe- rience in deciding whether the opinions of the witnesses were sufficient to outweigh the judgment of the Commissioners. In their Lordship's opinion the learned Judge attached too much importance to the opinions PRIVY COUNCIL 1039 ofwitnesses, which were chiefly of a speculative character; and they Morrison have to observe that the amount awarded by him exceeded the valua- ' * J tion of some of the claimant's own witnesses. Montreal Their Lordships, therefore, concur with the majority of the judges of the Court of Queen's Bench in the opinion that the judgment of the learned Judge of the Superior Court cannot be sustained. This being so, they are driven to the alternative of either affirming the judgments of the Court of Queen's Bench or of themselves fixing the amount of indem- nity which ought to be paid. Notwithstanding the obvious inconve- nience of the latter course, they would consider it their dutv to adopt it if they saw clear proof that there had been a miscarriage of justice. But having listened with great attention to the arguments of the learned counsel for both parties, and having weighed with great care all the evi- dence in the cause, they have come to the conclusion that they would not be justified in declaring against the opinion of the majority of the judges of the Court of Queen's Bench that there was error on the part of the Commissioners with regard to the amount of indemnity determ- ined by them. Their Lordships will, therefore, humbly advise Her Majesty to affirm the judgment of the Court of Queen's Bench and to dismiss this appeal. The appellants must pay the costs of the appeal. PRIVY COUNCIL. London, July 18, 1885. Coram Loed Watson, Lord Monkswbll, Lord IIubhodse, Sir Barnes Peacock, Sir Richard Couch. Prevost PHEVOST V. LA COMPAGNIE DE FIVE-LILLE. Flvejiue Per Curiam. The respondents. La Compagnie de Five-Lille, on the 25th May 1882, recovered judgment in the Superior Court of Lower Canada against the Union Sucriere FrancoCanadienne, for $33,293.00, with interest ; and on the lOth June 1882, a writ o^ fieri facias was duly issued to the sheriff of the district of Eichelieu, directing him to levy that sum upon the property, real and personal, of the judgment debtors. The sheriif, in execution of the writ, seized certain buildings, with the fixed machinery therein, belonging to the judgment debtors, which had been erected and used by them for the manufacture of beet-root sugar, situated in the parish of Berthier and district of Richelieu, and advertised the same for sale, as an immeuhle, upon the 28th August 1882. 1040 PRIVY COUNCIL Prevost '^^ ^^^ morning of the day of sale, John Lewis, an officer of the „. *, customs at Montreal, intimated to the sheriff, by letter, that the fixed Five-Lille machinery of the sugar factory was held by the Crown, under bond, for unpaid import duties, and could not be sold, unless subject to the con- dition that time duties were to be paid before any part of the mach- inery was removed from the premises. The claim thus asserted on behalf of the Crown became known to the appellant, Arthur Prevost, as well as to many other persons, who attended, on the 28th August 1882, for the purpose of bidding at the sale. Accordingly, the appellant Prevost, before the bidding commenced, ashed the sheriff whether the property was to be sold free of all charges, to which the sheriff ans- wered, " Yes." The bidding then went on ; and eventually the property was knocked down, and adjudicated to the appellant, at the price of $76,000. That the sale was conducted, and the purchase made by the appellant, on the distinct footing that the property was sold free of all charges, is made perfectly clear by the return of the sheriff, in which he expressly states that he disregarded the intimation given to him by Lewis, being of opinion that he had no authority to give effect to the condition which the Crown sought to impose. On the 29th August 1882, the day after the sale, the custom's au- thorities acting in virtue of a formal bref d' assistance, seized the whole machinery in the sugar factory, and placed it under the charge of one of their officers. Thenceforth, the machinery remained in the custody and possession of the Crown authorities, who refused to give delivery, or to allow delivery to be made to any one, until the whole import duties chargeable in respect of the machinery were paid, although they ex- pressed their willingness to give access to the machinery for the popeurs of cleaning and preserving it. They alleged that the factory had been duly constituted a custom or bonded warehouse, for the safe-keeping of the machinery, by an Act of the Governor in Council, in terms of the Dominion Customs Act, 40 Vict., cap. 10 ; that the sale, so far as regarded the machinery, was void, inasmuch as it was in the possession of the Crown, and not of the judgment debtors ; and, at all events, that so long as it remained in the factory which had been constituted a ware- house within the meaning of the Customs Act, no sale by the sheriff could defeat the right of the Crown to retain the custody of the mach- inery until the import duties were paid. In terms of Article 687 of the Procedure Code, the purchaser at a sale by the sheriff in execution is bound to pay the price within three days. On the lapse of that time, the sheriff, before making his return, ■ addressed a letter to the appellant, requiring him to make payment of the price ; and received a reply, through a solicitor, to the effect that the appellant was not prepared to pay, because the sheriff was unable to make delivery to him of the property which he had purchased. On the 3rd October, 1882, the appellant presented a petition to the PRIVT COUNCIL 1041 Superior Court, craving that the sheriffs d£cret of the 28th August, ad- pj-evost judging the property to him, should he annulled, and the sale declared * to be void ; or, othervrise, that he should be relieved of his obligation Five-IiUle to pay the purchase money. The respondent Company, as judgment creditor, opposed the application ; and, on the 4th October, 1882, they presented a petition iorfoUe enchire to the Superior Court, demanding the issue of a bref de venditioni exponas, under which the property should be resold at the risk of the appellant. In support of his applic- ation to annul the sale, the appellant alleged that he had bought the property free of all claims ; that the action taken by the custom's au- thorities had made it impossible for the sheriff to give delivery to him in terms of the contract of sale ; and that he could not obtain posses' sion of the machinery without paying the duties claimed by the Crown, which he was under no obligation to do. On the other hand, the res- pondent Company alleged that the Crown had, in point of fact, no right to obtain the machinery in order to enforce payment of the customs duties. They hIso denied that the appellant had demanded from the sheriff delivery of the property which he had purchased, and several that the appellant had never been willing or ready to pay the price, that nothing had occurred which made it impossible for the sheriff to give delivery, and that he had, all along, been ready and willing to do so. Mr. Justice Torrance, on the 20th December, 1882, disposed of both petitions. He held that the sheriff's sale on the 28th August had purged all privileges and hypotheques upon the property, and that the claim of the Government for customs duties could not interfere with its de- livery. Being thus of opinion that no cause had been shown why the appellant Prevost " should not have possession on paying the price of " adjudication," the learned Judge dismissed his application, with costs? and gave the respondents decree in terms of the prayer of their pe- tition. Against that judgment Mons. Prevost appealed to the Court of Queen's Bench for Lower Canada. Before the cause was heard, the Attorney General intervened in the interest of the Crown, and prayed the Court to declare that the machinery at the time of its seizure by the sheriff was in the possession of the customs authorities, and not of the judgment debtors, and to adjudge and declare that its seizure by the Crown under the href d' assistance was valid, and that the machinery was in the lawful possession of the Crown for the purpose of holding the same until the duties exigible thereon were paid. After hearing the original parties to these petitions, and also the intervenor, tor their several interests, the Court of Queen's Bench gave judgment upon the 23rd January, 1883. They held that the Crown was a preferable creditor for the amount of the customs duties payable in respect of the machinery, and, although they were of opinion that there PrevoBt 1042 PRIVY COUNCIL was no error in the judgment of Mr. Justice Torrance, they varied his ,&■ judgment by directing that the resale at the risk of the appellant Five-Iiille should be " sujette au privilege de la Couronne sur les deniers qui re- " presenteront le prix des dites machines." They likewise altered the judgment of the Superior Court, in so far as it related to costs, and re- commended, or, in other words, ordered that the whole costs incurred by the appellant Prevost and by the respondent Company in both Courts should be paid by the Crown, and should form a preferable charge upon that part of the price which was payable to the Crown in respect of customs duties. The reasons for the judgment of the Court of Queen's Bench were delivered by chief Justice Dorion, and are, in substance, the same as the considerations expressed in the judgment of Mr. Justice Torrance- The learned Judges seem to have been unanimously of opinion that the sheriff's sale had the effect of purging the machinery of all charges, in- cluding the rights of the Crown, and that, as soon as the adjudication to the a(ipellant Prevost was completed, on the 28th August 1882, the Crown could only prefer a claim to be ranked in the distribution of the price. Accordingly, they came to the conclusion which is thus stated by the learned Chief Justice : — " La vente, en ce qui regarde '' I'appellant, est done valable, et aussitot qu'il aura paye son prix d'ad- '' judication il pourra se faire raettre en possession des proprietes adju- '' gees . et en refusant de payer son prix, il s'expose a ce que la por- " priete soit vendue a sa foUe enchere, en vertu de I'Art. 600, C. P. C." The reason assigned for their somewhat remarkable order as to costs was, that the Crown had occasioned the litigation by not intervening at an earlier stage of the proceedings. Their Lordships are of opinioa that neither the judgment of the Queen's Bench, nor that of the Superior Court, which was thereby affirmed, with variations, can be sustained. Both judgments are based upon the ground that, because the seizure by the Crown upon the 29th of August, and the subsequent detention of the machinery until pay- ment should be made of the customs duties, were, in the opinion of the learned Judges, contrary to law, therefore it was in the power of the appellant Prevost, upon payment of the prix d! adjudication, to put him self in possession of the property sold to him. That is a very startling proposition. The Crown made the seizure of the machinery, and kept possession of it, in virtue of a warrant en facie regular ; and in this appeal, as well as before the Court of Queen's Bench, the Attorney Ge- neral for the Dominion has appeared and pleaded that the Crown acted within its legal right in seizing and detaining the machinery until cus- toms duties to an amount exceeding $20,000 were paid. The claim of the Crown might or might not be well founded, but nothing in the pre- sent case is more clearly apparent than the fact that the claim was de" liberately preferred, and has been seriously insisted in, and that the ap- PRIVY COUNCIL 1043 pellant Prevost if he had in September 1882 paid the price of $76,000 to the sheriff, could not have ob tained possession of the property which Prevost he had purchased, except by paying some $20,000 more which he was cif do not bound to do, or by entering into a doubtful and, it might be, pro- F''^e-Li"e tracted litigation with the Crown. The practical result of the judgments in the Courts below is to relieve the seller of any obligation to give de- livery of the subjects sold, and to impose upon the purchaser an obliga- tion to pay the price, and thereafter to attain possession, in the bert way he can, it may be, after expensive litigation, and years after he has parted with the purchase money. It appears to their Lordships that such a result is inconsistent with the essential principles of the contract of sale, and is not justified by any peculiarity -of the Canadian law. Art. 1491, C. C, declares that, whilst the rules concerning the for- malities and proceedings in judicial sales are to be found in the Civil Procedure code, such sales " are subject to the rules generally applicable " to the contract of sale, when these are not inconsistent with special " laws or any article of this Code." By Art. 1491, C. C, the principal obligations of the seller, arising out of the contract of sale, are defined to be, '• I, the delivery, and, 2, the warranty of the thing sold." By Art 1492 of the same Code, delivery is declared to be " the transfer of a^ " thing sold into the power and possession of the buyer ; " whilst th" following Article (1493) is to the effect that the obligation of the selle" to give delivery is satisfied " when he puts the buyer in actual posses " sion of the thing, or consents to such possession being taken by him " and all hindrances thereto are removed." These articles of the Civil Code merely lay down certain well known rules as to delivery, incidental to the contract of sale, which are common to most, if not to all systems of jurisprudence, and these rules are no* in the least inconsistent with any of the formalities and proceeding® prescribed by the Code of Civil Procedure in the case of judicial salesi Upon the completion of the contract, there immediately arise mutua rights and obligations on the part of the seller and the purchase^ When the subject of the sale is an immeuble, the obligation of the seller is to give the purca< er peaceable possession, and also a clear title, to enable him to defend his possession, and it is the right of the seller, upon fulfilment of that obligation, to demand and receive payment of the price. On the other hand, the obligation of the purchaser is to pay the price upon delivery of possession and of a title sufficient to protect him from eviction. Neither of the parties can exact performance from the other, except upon the condition of fulfilling his own part of the contract It was urged on behalf of the respondent Company that the sale to the appellant was perfected by the adjudication of the sheriflf upon the 28th August 1882, and that such adjudication had the legal effect of transferring the property to the appellant, and of giving him, at the 1044 PRIVT COUNCIL PrevoBt ^^°^^ time, an unencumbered title. Now, it is not matter of dispute & that the sugar factory buildings and the machinery were sold together Five-Lille as an immeuble, and, that being the case, the argument of the respondent Company does not appear to be consistent with Article 706 of the Pro- cedure Code, which declares that " no adjudication is perfect until the " price is paid, and then it conveys ownership from the time of its " date." But, assuming that the adjudication did pass the property of the thing sold to the purchaser, that would not, in the opinion of their Lordships, relieve the seller from the performance of the legal obliga- tions incumbent upon him, arising out of the completed contract of sale. The respondent's argument upon this part of the case confounded two matters which are essentially distinct, the perfection of the contract and its due performance. If the appellant had bought a mere title there would have been room for the respondent's contention, but the thing exposed to sale by the sheriff and purchased by the appellant was a sugar factory, and the obligation of the seller, under the completed contract of sale and purchase, was to give him actual possession of the factory. It was also suggested, in the argument for the respondents, that, in the case of a judicial sale, it lay with the purchaser to take judicial pro- ceedings, if these became necessary, for attaining possession of the pro- perty sold to him. The suggestion was based on the terms of Article 712 of the Procedure Code, which provides that a purchaser, who cannot obtain delivery of the property sold from the judgment debtor, must de- mand it of the sheriff, and upon the sheriffs return or certificate of the refusal to deliver, may apply to the Court for an order commanding the sheriff to dispossess the debtor, and to put the purchaser in possession. The remedy thus provided is a summary method of ejecting the judg- ment debtor, whose right and interest in the property has already been extinguished by a series of regular judicial proceedings. It has no anal- ogy to the case of a preferable claim, such as i« here asserted by the Crown, coupled with actual possession by the claimant, under a formal legal warrant. A claim of that kind, even assuming that it may ultimately prove to be invalid, can only be determined, and possession recovered, by means of a new litigation which may last for years. It would be contrary to well recognized principles of law and equity to hold, and there is no au- thority to be found, either in the Civil or Procedure Code, for holding that such a hindrance to the purchaser's obtaining possession must, in the case of an ordinary contract of sale, and in the absence of special circumstances, be removed by him, at his own expense, and not by the seller. Their Lordships do not consider it necessary, for the purposes of this case, to decide any of the questions which have been argued before them, in regard to the right of the Crown, either at common law, or un- PKIVY COUNCIL 1045 der the provisions of the Dominion Act, 40 Vict., c. 10, to seize and retain „ . possession of the machinery in question. It appears to their Lordships & to be quite sufficient for the decision of the case between the original Five-Lille parties to it, that no offer has been made to implement the sale of the 28th August, 1882, by delivering possession to the purchaser ; and that, in point of fact, neither the sheriff nor the respondents have ever been in a position enabling them to give delivery to the appellant, in terms of articles 1491, 1492, and 1493 of the Civil Code. Accordingly their Lordships will humbly advise Her Majesty to reverse the judgment of the Superior Court, dated the 29th December 1882, and also the judgment of the Court of Queen's Bench dated the 23rd January, 1883, and to grant the prayer of the appellant's petition to have it declared that he is freed from his obligation to pay the pur.- chase money, and to dismiss the petition of the respondents for folle enchire, with costs to be paid by the respondents to the appellant of all the proceedings in both Courts, the respondents must also pay to the appellant his costs of this appeal. There will be no order as to the costs ■ of the Crown. McLeod Fullarton, counsel for Prevost in England. Lacosie, Globenshy, Bisaillon & Brosseau, attorneys for Prevost. Sir Farrar Eerschell, Q. C, and Mr. Jeune, in England, and L. R. Church, Q. C, in Canada lor Attorney General. Lamly Smith, Q. C, and Percy Gye, counsel in England, and J. L. Archambault, counsel in Canada for la Compagnie de Fives- Lille. PRIVY COUNCIL. London, July 12, 1884. The Queen THE QUEEK v. DOUTRE. Doutre Pee Cukiam. On the 1st of October, 1875, the Government of Cana- da addressed and sent to the respondent, Mr. Joseph Dqutre, a letter, signed by Mr- Bernard, the Deputy Minister of Justice, in the following terms : — " Sir,— The Minister of Justice desires me to state that, the Govern- ment being desirous to retain counsel to act for them upon the proceed- ings in connection with the Fishery Commission to sit at Halifax under the Treaty of Washington, he will be glad to avail himself of your ser. vices as one of such counsel, in conjunction with Messrs. Samuel B. Thompson, Q. C , of St John, New Brunswick, and Robert L. Weatherbee, barrister, of Halifax. The Minister will be glad to know whether you 1046 PRIVY COUNCIL The Queen ^''® willing to act in that capacity, and in that case to place you in coin- 's munication with the Department of Marine and Fisheries upon the subject." Upon receipt of this letter the respondent wrote in reply that he would act as requested. The respondent is a member of the Montreal section of a body of legal practitioners incorporated by cap. 72 of the Consolidated Statutes of Lower Canada, under the title of " the Bar of Lower Canada." By the terms of the statute each member of the Bar is admitted to practise as " advocate, barrister, attorney, solicitor, and proctor at law," and no person except a member of the Bar duly admitted is entitled to conduct business in any of these capacities be. fore the Courts of Lower Canada. Every member of the Bar must be registered in the district where he intends to practise, and he becomes answerable for his conduct to the council of that district, being liable, in case of his offending against professional rule or etiquette, to censure or to suspension from office for any period not exceeding a twelve month. It is not matter of dispute that, according to the law of Quebec, a member of the Bar is entitled, in the absence of special stipulation, to sue for and recover a quantum meruit in respect of professional services rendered by him, and that he may lawfully contract for any rate of remuneration which is not contra bonos mores, or in violation of the rules of the Bar. But it is asserted for the appellant that by the law of Ontario, the Province in which Ottawa, the seat of Government, is situated, a counsel cannot sue for his fees, and that he is under the same disability according to the law of Nova Scotia, where, according to Article 23 of the treaty, the Commission was to meet. In support of that contention, counsel for the appellant referred to the opinion of Chief Justice Harrison in WDougall v. Campbell (41 U. C. Q. B., 332) as correctly expressing the law of Ontario, but they mainly relied upon the proposition that in those provinces of the Dominion where the common law of England prevails, members of the Canadian Bar can neither have action for their fees nor make a valid agreement as to their remuneration, unless that right has been conferred upon them by statute. In these circumstances it was maintained that the right of the respondent to sue for his fees must depend either upon the law of Ottawa, the locus contractus, or upon the law of Nova Scolhia, the locus solutionis, and that in neither case was any suit competent to him. Were it necessary to decide all the points thus taken by the appellant, questions of much nicety would arise. It is by no means clear either that Ottawa was the locus contractus, or that Nova Scotia was, in the strict sense, the locus solutionis. 1 1 is at least a plausible view of the case that the contract was completed in Quebec at the moment of time when the respondent posted his letter accepting the employment offered him by the Minister of Justice. On the other hand, although the Commission PRIVY COUNCIL 1047 was to sit at Halifax, it is perfectly plain that the work expected of the ^^^^ ^^^^j^ respondent and actually performed by him was by no means confined * to advocacy of the Dominion claims during the sitting of the Commission. His employment was not limited to what would in this country be ■considered the proper duties of a counsel, but embraced the work of an agent or solicitor. In point of fact, he is employed to prepare the case of the Dominion Government as well as to plead in their behalf That such was the understanding of both parties may be inferred from the known professional status of the respondent, as well as from the fact that, in pursuance of the so called retainer of the 1st of October, 1875, the respondent had papers sent him, and was engaged at Quebec during eighteen months, with occasional visits to Ottawa, in collecting and putting in shape materials for framing and supporting the claim which was to be urged before the commission. Then, as regards the other questions of law raised by the appellant, there is much difficulty. Their lordships are willing to assume that the law of England, so far as it concerns the right of the bar of England to sue or make agreement for payment of their fees, was rightly applied in the case of Kennedy v. Brown (13 C.B.N.S., 677), but they are not prepared to accept all the reasons which were assigned for that decision in the judgment of Chief Justice Erie. It appears to them that the decision may be supported by usage and the peculiar constitutipn of the English Bar, without attempting to rest it upon general considerations of public policy. Even if these considerations were admitted, their lordships entertain serious doubts whether, in an Enghsh colony where the common law of England is in force, they could have any application to the case of a lawyer who is not a mere advocate or pleader, and who combines in his own person the various functions which are exercised by legal practitioners of every class in England, all of whom, the bar alone excepted, can recover their fees by an action at law. But it is unnecessary, in the view which their lordships take of this case, to decide any of these questions which were raised by the argument for the appellant. The right of the respondent to sue for remuneration does not appear to them to depend either upon the law of the place where the employment was given, or upon the law of the locality within which it was performed. When any advocate or other skilled practitioner is by law and the custom of his profession entitled to claim and recover payment for his professional work, those who engage his services must, in the absence of any stipulation to the contrary, expressed or implied, be held to have employed him upon the usual terms according to which such services are rendered. That is the implied condition of every contract of employment which is silent as to remuneration, and it is dependent upon the status and rights of the person employed, and not upon the law of the place where his services are to be given, so long as he is employed in hs professional capacity. A member of the bar in England, in accordance with the law of that 1048 PRIVY COUNCIL The aiieen '^"""''I'y ^^^ ^^^ rules of the profession to which he belongs, renders, * and professes to render, services of a purely honorary character. If in his professional capacity as an English barrister he accepted a retainer to appear and plead before commissioners or arbitrators in a foreign country, by whose law counsel practising in the regular courts were permitted to have suits for their fees, that would not give him a right of action for his honorarium. His client would have a conclusive defence to such an action on the ground that he was employed as a member of the English Bar, and, by necessary implication, upon the same terms as to remuneration upon which members of that bar are understood to practice. The respondent is a member of the Quebec section of the bar of Lower Canada, and it was in that capacity that he was retained by the government as one of their counsel before the Fisheries Commission. The respondent has the rank of Queen's Counsel conferred upon him by patent, but that circumstance does not appear to their lordships to affect the present case. It gave him a certain precedence in a question with other members of the bar, but it made no change upon the duties and obligations incumbent on him as a practising member of the bar, or upon his privileges as such, including the right to sue for his fees. The retaining letter of the 1 st of October, 1 875, makes no mention of fees and their lordships are accordingly of opinion that it must be held to have been an implied condition of the employment thereby offered that the respondent was to be remunerated for his services upon the same terms on which these services were rendered to clients in Quebec. The respondent was engaged and undertook to go to Halifax as a Quebec counsel, subject to the same rule of his bar by which his conduct as a lawyer was regulated in Quebec, and it would be a strange result if, retaining his status and performing his work as a member of the Quebec Bar, he was nevertheless to be stripped of the privileges attaching to that status as soon as he entered the Province of Nova Scotia. A few weeks after his acceptance of the letter of the 1st of October, 1875, the respondent received a retaining fee of $1,000, and thereafter the subject of counsel's remuneration does not appear to have been oonsideied unti May, 1877, when it was discussed at Ottawa, in. the course of one or two personal interviews between Sir A. Smith, Minister of Marine and Fisheries in the government of Canada, and the respondent. The parties are widely at variance in regard to what actually passed on the occasion of these interviews. The allegation made by the res- pondent in his petition is : — That on the eve of his leaving his home for Halifax in May, 1877, your petitioner made with the Department of Marine and Fisheries a temporary and provisional arrangement, under which your petitioner should be paid $1,000 a month for current expenses while in Halifax, leaving the final settlement of fees and expenses to be arranged after the closing of the Commission." On the other hand, it is alleged in the defence filed for the appellant : " That PRIVY COUNCIL 1049 the arrangement made with the suppliant referred to in his pe*J*'i<'n,j,^g„^ggjj,, under which he was to be paid $] ,000 a month while in Halifax, was not & a temporary and provisional arrangement as alleged, but that the $1,000 a month, was, with other moneys previously paid to the suppliant, to be accepted by him in full for his services and expenses." The Commission met at Halifax on the 16th of June, and brought its labours to a close on the 23d of November, 1877, having sat, with occasional adjournments, for a period of five months and seven days. In addition to the retain- ing fee already mentioned, the respondent received a " refresher '' of $1,000, and also six monthly payments of |1,000 each during the sitting of the Commission, making a sum total of $8,000. According to the respondent, these sums were paid to him to account of his remunera- tion, the precise amount of his fees and expenses being left for adjust- ment subsequently. According to the appellant, they where paid to and received by the respondent as in full of his whole claim for fees and expenses. Both parties are agreed that in May, 1877, it was arranged that those sums ito the extent of $7,000) should be paid to the respond- ent, but they differ as to the footing upon which they were to be paid. Being of opinion that by the terms of his employment in 1875, the respondent was entitled to a quantum meruit in respect of the services which might be required of him, their lordships think that it lies with the appellant to make out that the respondent's original right to remu- neration was varied by subsequent agreement, and they have also come to the conclusion that the appellant has failed to establish the existence of such an agreement. The evidence upon this poiut, which need not be referred to in detail, is very unsatisfactory. It is abundantly plain that the impression honestly derived by Sir A. Smith from his inter- views with the respondent in May, 1877, was that the respondent had agreed to accept a refresher of $1,000, and a payment of the same amount monthly during the sittings of the Commission, as in full of al claims for remuneration. But in order to alter the then existing rights of the respondent, it is not enough for the appellant to show that such was the impression created in the mind of Sir A. Smith ; he must also prove that the terms of the arrangement, as understood by Sir A. Smith were understood in the same sense and were assented to by the respond- ent. But the respondent swears distinctly that he understood and believed the arrangement to be provisional merely ; that its object was to fix the sums which were to be paid him to account, leaving,the balanec payable to him for after-ajustment, and there are circumstance proved in the case which seem to establish beyond question that the respond- ent at the time sincerely entertained that belief. Then the evidence of Mr. Whitcher, the Commissioner of Fisheries for Canada, and the only third party present at these interviews, is not only very inconclusive, but what he does state, as to the language actually used by the principal parties to the arrangement then made, tends to support the respond- 39 1050 PRIVY COUNCIL TheQueen ^^^'^ understanding of its terms. In that state of the evidence, their & lordships are unable to hold that the appellant has satisfied the onus Dontre . , , . „ . , , „ , • t_- incumbent on him of provmg the new arrangement alleged in nis defence. In the courts below, while the learned judges were equally divided as to the result of the case, there was a remarkable diversity of judicial opinion in regard to the law applicable to its decision. The cause was tried before Mr. Justice Fournier, who, on the 12th of January, 1881, gave judgment in favour of the respondent, and fixed the amount of fees and expenses still remaining due to him in remuneration of his services at $8,000, and it is not maintained that the amount awarded by the learned judge is excessive, if the respondent has a right of action and that right is not barred by the alleged arrangement of May, 1877. The cause was then taken by appeal before the Supreme Court of Canada, who gave their judgment on the 13th of May, 1882. Chief Justice Ritchie and Justices Strong and Gwynne were in favour of allow- ing the appeal, but Mr. Justice Fournier, who was a member of the Full Court, adhered to the view which he had taken as judge of first instance, and Justices Henry and Taschereau, in substance, agreed with him. In consequence of this equal division of opinion in the Supreme Court, the order appealed from was confirmed, and the appeal dismissed, with costs. Their lordships do not consider it necessary to notice the great variety of reasons assigned by the learned judges of the Supreme Court in support of the views which were severally adopted by them, with the exception of one point raised in the judgment of Mr. Justice Gwynne. That point is deserving of notice for this reason — that if the opinion of the learned judge, which is based on the provisions of the Petition of Right Act of Canada, be well founded, the respondent, though he might have suit for recovery of his fees from any subject, could not recover them, by petition, from the Crown. By a pardonable error, Mr. Justice Gwynne refers to the Act of 1875, instead of the Petition of Right Canada Act, 1876 (39 Vict., o. 27), which repealed the statute of the previous year. Section 19, which is identical, in expression, with the similar circumstances of the repealed act, provides " that nothing contained in this act shall give to the subject any remedy against the crown in any case in which he would not have been entitled to such remedy in England, under similar circumstances, by the laws in force there prior to the passing of the imperial statute 23 and 24 Vict., c. 34." The learned judge seems to hold that these provisions place a Quebec lawyer on perfectly the same footing as an English barrister, so far as regards his right to proceed against the Crown for recovery of his fees. But it appears to their lordships that the process of reasoning by which the learned judge arrives at that conclusion confounds two things which are essentially different — "right" and "remedy." The statute does not say that a Quebec lawyer shall, in all cases, have only the same right against the Crown as a member of the English bar. What it does PaiVY COUNCIL 1051 enact is that no subject in Canada shall be entitled to the " remedy " provided, unless he has a legal claim, such as could have been enforced by petition of right in England prior to the Imperial Act of the 23rd and 24th Victoria. It is impossible to hold that a member of the Quebec bar who, by law and practice, is permitted to sue for his fees, when he seeks his remedy against the Crown, under the Canadian Act of 1876, has not such legal claim, and that he sues under circumstances similar to those in which an English barrister is placed who, neither by the usage of his profession nor the law of his domicile, can maintain any action for his fees. Their lordships will, therefore, humbly advise Her Majesty to affirm the judgment of the courts below, and to dismiss the appeal, with costs. Judgment affirmed. The Solicitor General and Mr. Jeune for the Crown. Mr. McLeod Fullarton for the respondent. The Queen A Doutre PRIVY COUNCIL. December 29, 1885. Present : — The Queen's most Excellent Majesty, Lord President, Duke of Richmond and Gordon, Sir Francis Sandford. SWEENEY v. BANK OF MONTREAL Whereas there was this day read at the Board a Report from the Judicial Committee of the Privy Council, dated 12th December, 1885, in the words following, viz. ; " Your Majesty having been pleased by your general order-in-coun- cil of the 18th November, 1885, to refer unto this Committee the matter of a humble Petition of the Bank of Montreal in the matter of an Ap peal from the Supreme Court of Canada between the Bank of Montrea (Defendants), Appellants, and Dame Emily Sweeney (Plaintiff), Respon dent, setting forth that this is a petition for a special leave to appeal from a decision of the Supreme Court of Canada, reversing a decision of the Court of Queen's Bench for Lower Canada (Appeal Side), which con- firmed a decision of the Superior Court for Lower Canada sitting at Montreal. The action was brought on the 23rd of May, 1881, by Dame Emily Sweeney (hereinafter called the respondent), against the Bank of Montreal (hereinafter called the Appellants), for the purpose of having it declared that she was the owner of 30 shares in the Montreal Rolling Mills Company, of the par value of $100 a share, and of having such shares transferred or the value paid to her. The material facts of the Sweeny & Bank of , Montreal. 1 1052 PRIVY COUNCIL Sweeny °^^> ^ appearing in the evidence, are as follows : — A letter dated the BaJkof ^^^^ of March, 1871, from Messrs. Crawford & Lockhard, of Belfast, in Montreal. Ireland, to James Eose, was tendered in evidence, which showed that Messrs. Crawford & Lockhard remitted through the appellants' bank by the direction of the family of the respondent to James Eose, the sum of $9,930.71. An entry in the books of Morland, Watson & Co., of which Kose was a partner, was tendered in evidence, which showed that Eose transferred the above sum to his credit to Morland, Watson & Co., and that he drew out part of such sum or of a further sum added thereto by Messrs. Crawford & Lockhard (as to which the evidence was similar), on the 4th of April, 1871. An account entered as the account of "James Eose in trust " in the books of the Montreal EoUing Mills Co. was ten- dered in evidence, which showed that on the 4th of April, 1871, Eose invested $4,000 in the purchase of four shares in the Montreal EoUing Mills Co. of $1,000 each. On the 11th of April, 1871, Eose obtained from the Montreal Eolling Mills Co. a certificate numbered 0,058, certifying that Eose " in trust " was the holder of three shares of $1,000 each : the certificate stated on its face that the shares were transferable only on the books of the Company : subsequently the value of the shares of the Montreal Eolling Mills Co., was changed from $1,000 to $100 each: on the 3rd of June, 1879, Eose transferred to Buchanan, as the manager of the appellants' bank, 250 shares of $100 each in the Montreal Eolling Mills Co., and on the 13th of March, 1879, afurthur amount of 60 similar shares : the two instruments of tranfer state the transfers to be from James Eose " in trust" to W. J. Buchanan, " in trust." but do not state ■ anything as to the nature of the trust in either case, or who were the cestuis que trustent : Buchanan had no knowledge that Eose held the shares in trust for the respondent or any particular person, or otherwise than as appeared on the face of the certificate and the books of the Montreal Eolling Mills Co., that the holding of the shares was affected by any trust ; the above transfer was given as collateral security for advances by the appellants to Eose personally : Eose was at all times thereafter largely indebted to the appellants : the respondent was un- aware of the transfer to Buchanan until she was informed of the same by a letter from Eose to her, dated the 6th of January, 1880 : it was stated in evidence by Eose that he gave the certificate No. 0,008 to the Eespondent, but it was not proved when the certificate was given to her ; it was also so stated by Eose that he paid respondent the dividends declared on the said shares before the 1st January, 1880, but no evidence was given to show that the respondent knew what the nature and source of the sums so paid to her were : on the 21th of January, 1881, protests were served on behalf of the respondent on the appellants and the Montreal Eolling Mills Co. . the pleadings in the case are not herein stated, as the points at issue fully appear from the judgments herein" after referred to : on the 24th of December, 1881, Mr. Justice EainviUej PRIVY COUNCIL 1053 as judge of the Superior Court for Lower Canada, sitting at Montreal, greeny gavejudgment in favor of the appellants: the case was heard on appeal * before the Court of Queen's Bench for Lower Canada (Appeal side), Montreal, constituted by Sir A. A. Dorion, C. J., Monk, Baby, Doherty and Caron, JJ. : judgment was given on the 25th September, 1884, for the ap pellants : the learned judges of the Court of Queen's Bench were unani- mous in favor of the appellants, and the judgment was delivered by the Chief Justice, by which the judgment dismissing the action af the appel lants was confirmed : on the lOth and 11th of March, 1885, the case was heard on appeal before the Supreme Court of Canada, constituted by Ritchie, C. J., Strong, Fournier, Henry and Taschereau, JJ., and on the22ndof June, 1885, judgment was given by Ritchie, C.J., Fournier and Taschereau, JJ., for the respondent ; Strong, J., dissenting ; Mr. Justice Henry does not appear to have delivered any reasons : it is sub- mitted that the judgment in favor of the respondent in the Supreme Court, proceeded chiefly, if not entirely, upon the principles and authorities of English and American law relating to trusts, and not on the law in force in the Province of Quebec, and that it is of the utmost importance that questions of law should be decided according to the system of law of the province in which they arise, and especially that the doctrines of English law relating to trusts and notice should not Ije applied in cases in the Province of Quebec, where they are not legally applicable : it is submitted further that questions of great and general importance on the subject of the law of Quebec in regard to trusts are raised in this case, and that it is important the present decision of the Supreme Court should not be allowed to stand as a precedent : it is sub- mitted further that in the present case important questions of the ad- missibility of evidence in the court of the Province of Quebec, according to the law in force there, were raised and were erroneously decided ; the above questions are of great importance to the appellants and other bankers in the Province of Quebec in the conduct of their business : deposits of shares, of which the certificate states them as in the present case to be held " in trust," are frequent and it appeared in evidence that the appellants have never regarded these words as putting them on inquiry or limiting the rights of the holders of the shares so to deal, with them ; and humbly praying that your Majesty in council will be pleased to order that the petitioners shall have special leave to appeal from the said judgment of the Supreme Court of Canada of the 22nd June, 1885, and that the Supreme Court of Canada may be ordered to transmit forthwith their transcript of their proceedings and evidence on which such judgment was given to the Privy Council office or for other relief in the premises. The Lords of the Committee, in obedience to your Majesty's said general order of reference, have taken the said humble petition, for leave to appeal, into consideration, and having heard counsel on behalf 1054 PRIVY COUNCIL Sweeuev °^ petitioners, their Lordships do this day agree humbly to report as & their opinion to your Majesty, that leave ought to be granted to the Montreal Bank of Montreal to enter and prosecute their appeal from the said judgment of the Supreme Court of Canada of the 22nd June, 1855, upon depositing in the Eegistry of the Privy Council the sum of £300 sterling as security for the costs of the respondent in case the said appeal should be dismissed, and their Lordships do further report to your Majesty that the Registrar of the Supreme Court of Canada ought to be directed to transmit to the Registrar of the Priry Council, v?ithout delay, authenti- cated copies under the seal of the said court of the record, pleadings, proceedings and evidence proper to be laid before your Majesty on the hearing of this appeal, upon payment by the appellants of the usual fees for the same." Her Majesty having taken the said report into consideration, was pleased, by and with the advice of Her Privy Council, to approve thereof and to order, as it is hereby ordered, that the said Bank of Montreal be and the same is hereby allowed to enter and prosecute their said appeal from the judgment of the Supreme Court of Canada of the 22nd June, 1885, uppn depositing in the registry of the Privy Council the sum of £300 sterling, as security for the costs of the respondent in case the said appeal should be dismissed, and the registrar of the Privy Council without delay, authenticated copies under the seal of the said court of the record, pleadings, proceedings and evidence proper to be laid before Her Majesty on the hearing of this appeal, upon payment by the appel- lants of the usual fees for the same. Whereof the Governor-General, Lieutenant-Governor or Commander- in-Chief of the Dominion of Canada for the time being, and all other persons whom it may concern, are to take notice and govern themselves accordingly. PRIVY couNCir- 1055 JUDICIAL COMMITTEE OF THE PKIVY COUNCIL. MoStoell London, June 25, 1887. Sweeney Coram The Lord Chanceller, Lord Hodiiousk, Loru McXA(iiiTEN, Sir Barnes Peacock, Sir Richard Couch. THE BANK OF MONTKliAL v. SWEENY. Their Lordships consider it to be proved in this case that Rose held the disputed shares upon a trust not disclosed by the entry in the Com- pany's books ; that he transferred them to the Bank in breach of his trust ; that at the time of the transfer the Bank knew of Kose's posi- tion ; and that the plaintifi' turns out to be the person in whose favor the trust existed. It has been argued for the appellants that these things are not proved, because they require a written commencement de preuve. and have not got it. But on this point their Lordships stopped the respond- ent's counsel. They are quite clear that if a written commencement is needed, it is to be found in the letters of Crawford and Lockhart coupled with the books of the Rolling Mills Company, and in the trans- fer executed by Rose to Buchanan on the 3rd June 1876. Under these circumstances the question arises whether the Bank must not be in the same position as if they had known that the plaintiflP was interested in the shares, and that the transfer by Rose was in viola- tion of his duty to the plaintiff. Their Lordships do not impute moral blame to Mr. Buchanan or to any agent of the Bank, for those gentle- men may be guilty of nothing more than a mistake of law. Nor do they think it necessary to examine how far the relations between Rose and the plaintiff may have ressembled or differed from those of an English trustee and his beneficiary, or to go into the English doctrines of cons- tructive fraud, or constructive notice. The Bank had express notice that as regards the property transferred to them Rose stood to some person in the relation expressed by the words " in trust, " and the only question is what duty was cast upon the Bank by that knowledge. Their Lordships think it wrong to say that any less duty was cast upon them than the duty of declining to take the property until they had ascertained that Rose's transfer was authorized by the nature of his trust. In fact they made no inquiry at all about the matter following- as Mr. Buchanan says, the usual practice. So acting, they took the chance of finding that there was nobody with a prior title to demand a transfer from Rose, and as the plaintiff is such a person they cannot retain the shares against her claim. Their Lordships are led to this conclusion by the ordinary rules of justice as between man and man, and the ordinary expectations of mankind in transacting their affairs. If indeed they found any princi- 1056 PRIVY COUNCIL Bank of P^® °^ Quebec law which absolutely forbad that property should be Montreal placed in the name of a person, with a simultaneous notice providing Sweeney his power over it should not be absolute but restricted, that would con- trol their decision. That view has been pressed upon them from the bar with great ability and force, but, as they hold, without authority to support it. The authorities cited relate to mandataires prHe-noms, and are to eftect that, when once Property has been placed under the domi- nion of such an agent, third parties may safely deal with him alone, even though notice is given to them that his principal is not assenting to his acts. Their Lordships think it unnecessary to examine this state" ment of the powers of a mandataire prSle-nom, for they find no defini- tion or description of such an agent which does not require that he should have a Hire apparent, which they understand to mean that he must be ostensible owner, made to appear to the world as absolute owner. They asked whether there was any text or case to show that an agent can be a mandataire prSte nom when the instrument conferring the property on him carried upon its face a declaration that his property is qualified. No such authority could be found. In this case Rose was never for an instant held out to the world as absolute owner, and there- fore he never could have given a good title to a third party by his own sole authority. Then it was argued that the words " in trust " do not show a title in any other person, and that they might be merely a mode of distin- guishing one account from another in the Company's books. Their Lordships think that they do import an interest in some other person, though not in any specified person. But whatever they mean, they clearly show the infirmity or insuflBciency of Rose's title ; and those who choose to rely on such a title cannot complain when the true owner comes forward to claim his own. It is worthy of remark that, in their plea, the appellants claim to be the true owners of the shares upon the very same principle upon which the plaintifTs claim is founded. Rose did not transfer them to the Bank by name, but to Buchanan 'in trust." The appellants aver that this transfer was made as security for a debt due from Rose to them, and that the shares "are now legally held for the said Bank." If that is the essential truth of the transaction as between Bucha- nan and the Bank, why should it be otherwise as between Rose and the plaintiflf? The result is that their Lordships agree in all material points with the Supreme Court of Canada. They will humbly advise Her Majesty to afiSrm the decree of that Court, and dismiss the appeal. The appellants must pay the costs. Judgment confirmed. W. W. Robertson, Q. C, counsel for appellant. W. H. Kerr, Q. C , counsel for respondent. PRIYY COUNCIL '. 057 JUDICIAL COMMITTEE OF THE PHIVY COUNCIL. Vaiin December 13, 1879. Present— Lord Selborxe, Sir James W. Colvile, Sir Barnes Peacock Sir Momtague E. Smith, and Sir R. P. Collier. VALIN V. LANGLOIS. Their Lordships have carefully considered the able argument which they have heard from Mr. Benjamin, and they feel glad that so full an argument has been offered to them, because there can be no doubt that the maiter is one of great importance. The petition is to obtain leave to appeal from two concurrent judgments of the Court of first instance and of the Court of Appeal, affirming the competency and validity of an Act of the Dominion Legislature of Canada. Nothing can be of more importance certainly than a question of that nature, and the subject matter also, being the mode of determining election petitions in cases of controverted elections to seats in the Parliament of Canada, is beyond all doubt of the greatest general importance. It, therefore, would have been very unsatisfactory to their Lordships to be obliged to dispose of such an application without at least having the grounds of it very fully presented to them. That has been done, and I think I may venture to say for their Lordships generally that they very much doubt whether, if ' there had been an appeal and counsel present on both sides, the grounds on which an appeal would have been supported, or might have been supported, could have been better presented to their Lordships than they have been on the present occasion by Mr. Benjamin. In that state of the case their Lordships must remember on what principles an application of this sort should be granted or refused. It has been rendered necessary by the legislation which has taken place in the colony, to make a special application to the Crown in such a case for leave to appeal, and their Lordships have decided on a former occa- sion that a .special application of that kind should not be lightly or very easily granted ; that it is necessary to show both that the matter is one of importance, and also that there is really a substantial question to be determined. It has been already said that their Lordships have no doubt about the importance of this question, but the copsideration of its im portance and the nature of the question tell both ways. On the one hand, those considerations would undoubtedly make it right to permit- an appeal if it were shown to their Lordships ^rima_/acie, at all event, that there was a serious and a substantial question requiring to be de- termined. On the other hand, the same considerations malie it unfit and inexpedient to throw doubt upon a great question of constitution, allaw and upon a decision of the Court of Appeal there, unless their Lordships are satisfied that there in prima facie a serious and substantial question requiring to be determined. Their lordships are not satisfied in this case Langlois 1058 PRIVY COUNCIL Valin ^^^^ thfre is any such question, inasmuch as they entertain no doubt * . that the decisions of the lower CJourts were correct. It is not to be pie- sumed that the Legislature of the Dominion has exceeded its powers, unless upon grounds really of a serious character. In the present case their Lordships find that the subject matter of this controversy— that is, the determination of the way in which questions of this nature are to be decided as to the validity of the return of members to the Canadian Par- liament — is beyond all doubt placed within the legislative power of the Dominion Parliament by the 41st section of the Act of 1867, to which reference has been made. Upon that point no controversy is raised. The controversy is solely whether the power which that Parliament pos- sesses of making provision for the mode of determining such questions has been competently or incompetently exercised. The only ground on which it is alleged to have been incompetently exercised is that by the 91st and 92nd clauses of the Act of 1867, which distribute legislative powers between the Provincial and the Dominion Legislatures, the Dominion Parliament is excluded from the power of legislating on any matters coming within those classes of subjects which are assigned ex- clusively to the Legislatures of the Province. One of those classes of subjects is defined in these words, by the 14th sub-section of the 92nd clause : '' The administration of justice in the Province, including the constitution, maintenance and organizatien of Provincial Courts, both of civil and of criminal jurisdiction, and including procedure in civil mat- ters in those Courts." The argument, and the sole argument, which has been offered to their Lordships to induce them to come to the conclu- sion that there is heie a serious question to be determined is that the Act of 1874, the validity of which is challenged, contravenes that parti- cular provision of the 92nd section which exclusively assigns to the Pro- vincial Legislatures the power of legislating for the administration of justice in the Provinces, including the constitution, maintenance and or- ganization of Provincial Courts of civil and criminal jurisdiction, and in- cluding procedure in civil; not in criminal, matters in those Courts. Now, if their Lordships had for the first time, and without any assistance from anything which had taken place in the colony, to apply their minds to that matter, and even if the 41st section were not in the Act, it would not be quite plain to them that the transfer of the jurisdiction to deter- mine upon the right to seats in the Canadian Legislature — a thing which had been always done, not by Courts of Justice, but otherwise — would come within the natural import of those general words : " The admistra- tion of justice in the Province, and the constitution, maintenance and organization of Provincial Courts, and procedure in civil matters in those Courts." But one thing is clear, that those words do not point expressly, or by any necessary implication, to the particular subject of election pe- tition ; and when we find in the same Act another clause which deals expressly with those petitions, there is not the smallest difBculty in PRIVY COUNCIL 1059 taking the two clauses together, and in placing upon them y^iin both a consistent construction. That other clause, the 41st, j^j^^fi^;^ expressly says that the old mode of determining this class of '^ ° quesfions was to continue until the Parliament of Canada should otherwise provide. It was, therefore, the Parliament of Canada which was otherwise to provide. It did otherwise provide by the Act of 1873, which Act it afterwards altered, and then passed the Act now in question. So far, it would appear to their Lordships very difficult to suggest any ground upon which the competency of the Parliament of Canada so to legislate could be called in question. But the ground which is suggested is this : that it has seemed fit to the Parliament of Canada to confer the jurisdiction necessary for the trial of election peti- tions upon Courts of ordinary jurisdiction in the Provinces; and it is said that although the Parliament of Canada might have provided in any other manner for these trials, and might have created an^ new Court for this purpose, it could not commit the exercise of such a new jurisdic- tion to any existing Provincial Court. After all their Lordships have heard from Mr. Benjamin, they are at a loss to follow that argument, even supposing that this were not in truth and in substance the creation of a new Court. If the subject matter is within the jurisdiction of the Dominion Parliament, it is not within the jurisdiction of the Provincial Parliament, and that which is excluded by the 91st section from the jurisdiction of the Dominion Parliament is not anything else than matters coming within the class of subjects assigned exclusively to the Legisla- tures of the Provinces. The only material class of subjects relates to the administration of justice in the Provinces, which, read with the 41st seCj tion cannot be reasonably taken to have anything to do with election petitions. There is, therefore, nothing here to raise a doubt about the power of the Dominion Parliament to impose new duties upon the exist- ing Provincial Courts, or to give them new powers as to matters which do not come within the classes of subjects assigned exclusively to the legislatures of the Provinces. But. in addition to that, it appears that by the Act of 1873, which, even by those judges who are said to have disputed the competency of the Act 1874, is admitted to have been competent to the Dominion Parliament, what appears to their Lordships to be exactly the same thing in substance, and not so very different even in form, was done. It was intended that when a Court of Appeal should be constituted for the Dominion, a judge of that Court of Appeal should be the judge in the first instance of election petitions, and three judges of the same Court should have power to sit in appeal from any judgment of a single judge. But it was necessary also to provide for the interval between the passing of the Act and the constitution of such a Court of Appeal, and that Act of 1873 provided that in the meantime the judges of existing Provincial Courts should exercise under regulations contained in it the same jurisdiction. It did not, indeed, say the Courts — it said 1060 PRIVY COUNCIL the judges of the Courts, and that is really in their Lordships' view the V^in sole difference for this purpose between the Act of 1873 and the Act of Langlols 1874. The Act of 1874 in substance does the same thing, except that in the definition clauses it uses this language :— " The expression ' the Court,' as respects elections in the several Provinces hereinafter men- tioned respectively shall mean the Courts, or any of the judges thereof ; and then it mentions by their known names the existing Courts of the different Provinces. When their Lordships go on to look at the provisions which follow in the Act, it is clear not only that a new jurisdiction is provided for, but even the power to take evidence. It is said that a single judge in rotation, and not the entire Court, is to exercise this jurisdiction, and in the forty, eighth section:—" 'J'hat on the trial of an election petition, and in other proceedings under this Act, the judge shall, subject to the provisions of this Act, have the same powers of jurisdiction and authority as a judge of one of the Superior Courts of Law and Equity for the Province in which such election is held, sitting in term or proceeding at the trial of an ordinary civil suit, and the Court held by him in such trial shall be a Court of Eecord " Words could not be more plain than those to create this as a new Court of Eecord, and not the old Court, with some super- added jurisdiction to be exercised, as if it had been part of its old juris- diction ; and all that is said as to the employment of the same officers, or any other machinery of the Court for certain purposes defined by refer- ence to the existing procedure of the Courts, shows that the Dominion Legislature was throughout dealing with this as a new jurisdiction created by itself, although in many respects adopting, as it was convenient that it should adopt, existing machinery. Therefore, their Lordships see nothing but a nominal, a verbal, and an unsubstantial distinction between this latter Act as to its principle and those provisions of the former Act, which all the judges of all the Courts in Canada, apparently without difficulty, held to be lawful and constitutional. Their Lordships are told that some of the judges of the Courts of first instance have thought there was more of substance, in the distinction than there appears to their Lordships to be, and have declined to exercise this jurisdiction. It has been said that five judges have been of that opinion. On the other hand, two judges of the first instance, I think both in the Province of Quebec, the Chief Justice in the present case, and in another case Mr. Justice Caron, a judge whose experience on the Cahadian Bench has been long, and whose reputation is high, have been of opinion that this law was perfectly within the competency of the Dominion Legislature, and they could see nothing in the distinction taken between tha present law as to its principle and the former; and now the question has gone to the Court of Appeal the Supreme Court of Canada, who constituted as a full Court of four judges, have unanimous ly been of that opinion, and nothing has been stated to their Lordships, Langlols PRIVY COUNCIL 1061 even from those sources of information with which Mr. Benjamin has y^^^^ been supplied, and which he has very properly communicated to their ^ ^^& ^ Lordships— nothing has been stated to lead their Lordships at all to ap- """ ' prehend that there is any real probability that any judge of the inferior Courts will hereafter dispute their obligation to follow the ruling of the Supreme Court, unless, and until, it shall be reversed by Her Majesty in Council. Nothing has been said from which their Lordships can infer that any Provincial Legislature is likely to offer any opposition to such a ruling on this question as has taken place by the Court of Appeal, unless, as has been said, it should at any future time be reversed by Her Majesty in Council. Under these circumstances their Lordships are not persuaded that there is any reason to apprehend difficulty or disturb- ance from leaving untouched the decision of the Court of Appeal. Their Lordships are not convinced that there is any reason to expect that any of the Judges of the Court below will act otherwise than in due subordi- nation that the appellate jurisdiction, or refuse to follow the law as laid down by it. If indeed, the able arguments which have been offered had produced in the mind of any of their Lordfhips any doubt of the sound- ness of the decision of the Court of Appeals, their Lordships would have felt it their duty to advise Her Majesty to grant the leave which is now asked for, but on the contrary the result of the whole argument has been to leave their Lordships under the impression that there is here no substantial question at all to be determined, and that it would be much more likely to unsettle the minds of Her Majesty's subjects in the Dominion, and to disturb in an inconvenient manner the legislative and other proceedings there, if they were to grant the prayer of this peti- tion, and so throw a doubt on the validity of the decision of the Court of Appeal below, than if they were to advise Her Majesty to refuse it. Under these circumstances their Lordships feel it their duty humbly to advise Her Majesty that this leave to appeal should not be granted, and that the petition should be dismissed. TABLE OF CASES IN THE PRIVY COUNCIL. Abbott & Fraser . . 857 « &McGibbon . . 1027 Angers & Queen Insurance Company .... . 867 Att'y General & Colonial Building Society . . 906 " '• & Reed 871 Banque d'Hochelaga & Goldring . .... 949 Bank of Montreal & Sweeney 105 1-1055 " Toronto & Lambe . . ... 977 Belisle & L'Union St-Jacques 993 Board of Management & Dobie .... 922 Bourgouin & La Cie du Chemin de Fer, &c. . . . 874 Carter & Molson . 889 '' & Molson, Holmes & Carter . . . .894 " & Molson ... . . . 1014 Chevigny & City of Montreal 900 City of Montreal &Chevigny .... . . 900 " " & Morrison . . . . 1034 Colonial Building Soc. & Attorney General .... 906 Compagnie de Chemin de Fer & Bourgouin .... 874 " Five Lille & Prevost 1039 " Manufacturiere de St-Hyacinthe & Frechette . 941 Gushing & Dupuy 913 Dobie & The Board of Management, &o. . ... 922 Doutre & Regina 1045 Drummond & Mayor of Montreal 1004 Ducondu & Dupuy . . 934 Dupuy & Gushing . 913 " & Ducondu .... .... 934 Elliot & Lord . . ... . . 937 Fraser & Abbott . . 857 Frechette & La Cie Manufacturiere, &c 941 TABLE OF CASES 1063 Ooldring & La Banque d'Hoohelaga . 949 Gravel & Martin ... . . . 950 Holmes & Carter & Molson . . . 894 Kershaw & Kirkpatrick . . 953 King & Pinsonneault ... 959 Kirkpatrick & Kershaw . . .... 953 Lambe & The Bank of Toronto . . 977 Lambkin & South Eastern Eailway Co 970 Langlois & Valin .... 1057 Les Soeurs & Middlemiss ... . . 984 Lord & Elliott . . . 937 L'Union St. Jacques & Belisle . . . . 993 MacDonald & Whitfield 1016 MaoDougall & Prentice 996 Martin & Gravel ... 950 Mayor of Montreal & Drummond 1004 " '■ & Morrisson . 1034 McGibbon & Abbott 1027 Middlemiss & Les Sceurs Hospitalieres, &c .... 984 Molson & Carter . 889 "... ... . 1014 Morrison & City of Montreal .... . 1034 Pinsonneault & King ... 959 Prentice & MaoDougall . . .... 996 Prevost & Cie de Five-Lille .... . . 1039 Queen Insurance Co. & Angers ... . . 867 Reed & Attorney General . . ... 871 Regina & Doutre . 1045 South Eastern Ey Co. & Lambkin . . . 970 Sweeney & Bank of Montreal . . . 1051,1055 Valin & Langlois .... 1057 Whitfield & MacDonald . . . ... 1016 LtX 5 ^Ta . ,' ecu, " i , -i. M<5f«L^C' <:i;ic^ 1