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' .-« BY ^^-^^, ANDREW ROBERTSON, ESQ., Q. C. PRINTED AND PUBLISHED BY JOHN LOVELL. 1864. ill ■I LIST OF WORKS INCLUDED IN THIS DIGEST. Kxtiiil.-i oil Pr»5c«5denta tir<5a dcs Registrcs de hi Provosts dt^ (^leboc. 1821, — JoDPjih IVdHfOjs Pi-rniult 1 vol, Extniits ou Prec(5dent3 des Arrests tiros des llegistres du Conseil Superieur de Quebec, from 1727 to 1759. 1824. — Joseph Fran^ou Perrault. . .. 1 vol. Cases Argued and Determined in the Court of King's Bench for the District of Quebec, in Hilary Term, 1810.— Quebec, — Ge.nrne Pyke 1 vol. Ucjiorts of Cases in the King's Hench and Provincial Court of Appeals of Lower Canada, with a few of the more important cases in the Court . of Vice-Admiralty ; and on Appeals from Lower Canada before the Lords of the Privy Council. Quebec, 1834. — George Okill Stuart... 1 vol. Revue de Legislation et de Jurisprudence, et Collection de Decisions du Divers Tribunaux du Bas-Canada. Montreal, 1846-7-8.. — MM. Louis O. Letoumeux, S. Leliivre et F. R. .Angers, A vocals 3 vols. The Law Reporter — Condensed Reports, Montreal. Montreal, 1854. — T. K. Ramsay and L. S. Morin, Es(irs., Advocates 3 vols. Lower Canada Reports, from 1851 to 1862 inclusive. Quebec. — Lelievre and Angers arid others 12 vols. Lower Canada Jurist, from 1857 to 18G2 inclusive. Montreal, — By a Com- mittee of the Mmitreal Bar (• vols. Seigniorial Questions. Quebec, 1856. (Seigniorial Judgment.)— MM. Lelievre et Angers 1 vol. Cases in the Vice-Admiralty Couit for Lower Canada. London, 1858. — George Okill Stunrt, Esq., Q.C 1 vol. Till' cll3u^ ([uoled K. I>. Q. iirt- tiiicen from an Inde.x given in tin- IJi'vuc de .('■i;j>l:ill"li Mi'(>v.- icli'i 1( (i Hi, c t a a 11 fi t] a; tc ci in ac an he th] cos ' -/ PREFACE. 1 Tins volume is published in the hope tliat it will be of use, by bringing together, in small compass, the decisions of the Courts in Lower Canada, as reported to the date when this work was completed, thereby aflbrding the means of comparing these decisions, and aiding, in some degree, in establishing a settled and uniform Jurisprudence. The Student of Law is here furnished with the application to decided cases of the general principles laid down in the text books, and the Practising Advocate with easier reference to the Reports themselves, and the authorities there cited. The points adjudged have been adopted as given in the Reports when they appeared to be stated accurately ; in other cases they have been re-written. The headings or titles might have been increased, and many cases usefully put under more than one heading, and in French as well as in English, but this would have added to the size as well as to the cost of the volume. It is hoped, however, that the ^ ^^ VIU IMIKFACK. I'ctciriiccs as j^iviMi u ill he loiiiul sulliciuiil l(» imlicalt' till! iiioi'i! impoi'Uuit rtiibjwts. The cases from the Pkkvostk iiiid ('unseil Sui'iauKni sue given, because M. Perrault's volumes arc now rarely to hv. met with, and as shewing the admirable sim- plicity and e(iuity of the administration of justice in these Courts, when Attorneys and Advocates were un- known in the Province. Many of these cases will be recognised as authority at this day ; some of them are of curious interest to the profession. The List of Cases at the end of the volume, allh()up;h not usually given in a mere Digest or Index, will contribute to the main end and value of such a work — that of finding soon what one is looking for. 3I0NXUSAI., 18C4. knowle DIGEST. LOWER CANADA REPOETS. ACTION. ASSUMPSIT AND DEBTS. Held, That an action on an obligation payable on demand cannot be main- tained if the obligation produced in evidence is payable a terme. Leroux vs. Winter ;K.li.,Q. 1813. Held, That an action on an implied promise for board, lodginsi, and washing, can be maintained in assumpsit. Spatz vs. Meyers; K. B., Q. 1816. Held, That when various sums have been received by an agent, the principal may sue in account, or for money had and received. Leclerc vs. Ross ; K. B., Q. 1809. Held, That if there be a special agreement between the parties, a general indebitatus assumpsit cannot be maintained. Hitchcock vs. Grant ; K. B., Q. 1817. Therefore in an action of general indebitatus assumpsit for work and labor, in which, at the trial, it was proved that the work had been performed under a written contract, the action was dismissed. Fielders vs. BlacJcstone ; K, B., Q. 1818. Held, That if one receives advances in money upon his contract for work, and does not execute it, his conduct as to the person with whom he contracts \&fraudu- lent, and such person may cither affirm the contract, and sue in damages for non-performance, or may disaffirm it, and sue for money had and received in assumpsit. Ihimas vs. Patouelle; K. B., Q. 1818. Held, That an action of asstimpsit or of debt will lie for a liquidated or ac- knowledged balance of account settled between co-partners, but until their account «^-~r\ ACTION — ASSUMPSIT. is settled, the action must be founded on thacontraf dc sociiti, and be in account. Delagrave VB. Hanna; K. B., Q. 1818. Held, That the amount of an undertaking to pay salvage in the Court of Admiralty of another British Province may be recovered in Canada. Moore vs. Muir; K. B.,Q. 1818. Held, That a contractor for a public building can maintain an action for money had and received against the commissioners with whom he contracted for the execution of such building, if they have received from Government the mriey which is due to him. Larue vs. Craioford; K. B., Q. 1819. Held, That when a balance has been struck between co-partners, an action of assumpsit can be supported. If no balance has been struck, the action must be in account. Bohinson vs. Reffenstcin; K. B., Q. 1821. Held, That the 194th Article of the Custom enables a proprietor to compel his neighbor to build a nmr mitoyen between them ; therefore, where the plaintiff brought his action in assumpsit for money laid out and expended in erecting a mur mitoyen, with his neighbour's implied consent, it was held that he was entitled to recover. Latouclie vs. Latouche; K. B., Q. 1821. Held, That an action in assumpsit for rent cannot be maintained if there be a lease. Burns vs. Burrell ; K. B., Q. 1816. Held, That in an action for the use and occupation of a farm, the quantum valebat per annum may be proved by witnesses, also the possession of the defendant. Langlois vs. Darryson ; K. B., Q. 1820. In an action for £90 for goods sold ; plea, that on the day of the alleged indebt- edness, defendant executed a notarial obligation for the goods with a mortgage, and that the d«mand was novated. Answer, that the obligation was only as collateral security. The plaintiff proved the sale and delivery of the goods ; the defendant merely fyled a copy of the obligation. Held, That without express mention of novation, the presumption was in favor of the creditor, and his right to sue upon the original cause of action remained. 1 L. C. Rep., p. 250, McFarlane vs. Patton; S. C, Montreal; Day, Vanfelaoa, Mondelet, J. ♦ Held, In an action of assumpsit, that where it is proved that the work was performed under a written contract, the plaintiff cannot recover. 1 Jurist, p. 193, McGinnis vs. McGlosky ; S. C, Montreal; Day, Smith, Chabot, J. Held, That money paid to a contractor in advance, on account of the consider- ation money cf a contract for building, cannot be recovered back by the ordinary action of assumpsit. 3 Jurist, p. 282, Ingham vs. Kirhpatrich; S. C, Sher- brooke ; Day, Meredith, Short, J. "eld, That for goods sold to a married man and his mother by a trader, both will be condemned jointly, but not solidairement, under the proof made in this case, Laherge vs. Delorimier ; S. C, Montreal ; 1854 ; Day, Smith, Mondelet, J. ; Cond. Rep., p. 87. Held, That an action lies to recover back monies paid as a tax, under a by- law of a municipal corporation, when the by-law has been declared void, the payment being made by erreur de droit. 2 L. C. Rep., p. 180, Leprohon rs. Corporation of ^Montreal. In Appeal : Rolland, Panet, Aylwin, J, ACTION — PETITORY. Quantum Meruit. 3 Held, Th-^ ia an action on a special contract for work and labor, if the contract be not proved, evidence of a quantum meruit cannot be received unless there be a count for a quantum meruit in the declaration. Barry vs. Deacon ; K. B., Q. 1820. Held, That if, in an action on a quantum meruit for .rork and labor, with the common counts only in the declaration, it appears that the work was done under a written contract, the action will be dismissed. Huot vs. Crimazie ; K. B,, Q. 1819. Held, 1. That assessors, appointed under a statute authorizing the Corporation df Montreal to appoint such assessors, and to grant them such remuneration for their services as the Council may deem fitting, cannot recover in an action on r quantum meruit against such Corporation. 2. That it is the right of a witness to be taxed in the court in which he is examined as a witness, and he cannot bring an action on a quantum meruit for attendance and loss of time as such witness. 8 L. C. Rep., p. 236, Gorrie vs. the Mayor, (fee, of Montreal; S. C, Montreal; Smith, J. Held, That a witness cannot sue for the amount of his taxation, but must proceed by execution against the party who summoned him, wader the 12 Vict., c. 5, sect. 9. 9 L. C. Rep., p. 6, Veilleux vs. Ryan; Circuit C, Quebec; Chabot, J. Held, 1. That a carpenter cannot maintain an action of assumpsit for work and materials for extra work, if such work was to be valued according to the con- tract price in a written contract. 2. That the plaintiff ought to have alleged the contract in pursuance of which the extra work was to be valued. 1 Rev. de Jur., p. 297, Stuart, App., Tripannier, Resp. In Appeal : RoUand, Mondelet, Day, Gairdner, J. See Puffer, App., Gauvreau, Resp. 3 Rev. de Jur., p. 108. 1847 Assumpsit for Notaries' Services — See Notary. ARCHITECT. Held, That an architect named in a contract for the building of houses, has a right to recover from the proprietor as compensation for services, a certain commis- sion charged and shown to be a quantum meruit for such services. 11 L. C. Rep., p. 94, Footner, Api^., Joseph, Resp. In Appeal: Lafontaine, C. J., Aylwin, Duval, Meredith, Bruneau, J. See this case in the S. C, 3 Jurist, p. 253. In Appeal : 5 Jurist, p, 225. ACTION PETITORY. Held, That a petitory action can be brought by the heir against a party iu possession of an immoveable, and claiming to hold an undivided portion thereof « litre dc douaire. 1 L. C. Rep., p. 160, Cannon es qualiteya. O'Neilet ux. ; S. C. Quebec ; Bowen, C. J., Duval, .T. I ■ > a ^-w-A 4 • ACTION — PETITORY. Held, in S. Court, St. Francis (Gairdner, Meredith, J.), that as the plaintiff, in a petitory action, had not had possession or delivery of. the lot, and had not fyled any title anterior to defendant's possession, his action must be dismissed. In Appeal, Ex parte, that there was no proof of any possession, by defendant, previous to plaintiff's title; and that the production of such title was suflBcient to sustain a petitory action, as against all persons who could claim no better title, or any right under an actual possession animo domini anterior to such title, the more so, as in the present c.ise, defendant claimed title derived through his vendor, from the same auteur as the plaintiff. 1 L. C. Rep., p. 211, Stuart jvs, loes. In Appeal : RoUand, Panet, Aylwin, J. Tradition. Held, That as the plaintiff had not obtained tradition of the cm2)lacement mei for, from his vendors, proprietors of the seigniory whose property and possession were proved, " that the simple convention contained in the contract of con- " cession, not followed by tradition, could not transfer the domaine de proprieti^ '' and that by reason thereof the plaintiff was not proprietor, and action dismissed." 2 L. C. Rep., p. 7, Brochn vs. Fltzhack ft ah ; S. C, Quebec ; Bowen, C. J., Duval, J. Held, 1. That in sales of wild lands, tradition is necessary to convey the right of property. 2. That where the purchaser, by private sale of such lands, does not take possession of the same, they may be legally seized and sold as belonging to the vendor. .3. That in such case, the adjudkataire becomes seized of such lands, to the exclusion of the purchaser who has neglected to take possession. 4. That a partition among co-heirs, duly homologated, is evidence as against third parties, of the quality assumed by such heirs, and it is not necessary that certificates of marriage and of baptism should be produced. 2 L. C. Rep., p. .345, Mallory vs. Hart. In Appeal : Stuart, C. J., Rolland, Panet, J. Held, In the S. C, Montreal, that a purchaser who has not had, either by him- self or his auteur, possession of real estate, cannot revendicate the same upon a third party, in possession at the time of such purchase. Held, In Appeal, 1. That a judicial sale operates a real tradition, and that the purchaser is duly seized, and may transmit possession. 2. That such purchaser of an undivided part may obtain a licitation. 3. That a minor of the age of twenty cannot dispose of his immoveables by will. 4. That^ in the case submitted, the defendants had not, and could not oppose, any legal title to the land in dispute. 9 L. C. Rep., p. 385, Loranger, App., Boudrcau et vx,, Resp. ; Lafontaine, C. J., Aylwin, Duval, Meredith, J. Held, 1. That to maintain a petitory action it is not necessary that the purchaser should have had the possession or actual tradition of the immoveable claimed, if the title of his vendor is alleged in the declaration, and the possession of the vendor anterior to defendant's possession is proved. 2. That in such case the court will correct a clerical error in the description of the immoveable property as given in the judgment of the court below. 1 2 I > ACTION — I'ETITOllV . ■if L. C Rep., Bihdcau, App., Lpfran(/)is, Rcsp. In Appeal: Lafontainc, C. J., Aylwiii, Duval, Meredith, Mondelet, J. Held, 1. That the plaintiflF in a petitory action cannot obtain a judgment iu his favor upon a deed of sale to him, dated mbscquentJy to the defendant's occu- pation of the land in dispute, the plaintiff's autmr not having been in possession of the land at or previous to the date of such deed. 2. That the plaintiff could derive no advantage from a sheriff's deed of the land to his autmr dated 17 years previous to the plaintiff's title, inasmuch a.s such sheriff 's deed was only fylcd at aiqmtc, and was not set up or pleaded, so as to afford the defendant an opportunity of answering it. Semblc, That a copy of a sheriff's deed certified by the registrar is not evidence of the deed, but simply of its registration. 12 L. C. Rep., p. 98, Gibson, App., Wi'drc, Respondent. In Appeal : Lafontainc, C. J., Aylwin, Duval, Meredith, Mondelet, J. Same case, 6 Jurist, p. 78. Held, That the plaintiff in a petitory action cannot obtain a judgment in his favour upon a deed of sale to him, dated subsequently to the defendant's occupa- tion and peaceable possession of the land in dispute, the plaintiff's auteur not having been in possession of the land at, or previous to, the date of such deed. 12 L. C. Rep., p. 200, Folsi/ vs. Doners; S. C, Arthabaska, Stuart, J. The plaintiff brought a petitory action for a lot of land, alleged to have been acquired by him by deed of 21st of January, 1856, setting up no other title in his declaration. The defendant pleaded, that before the date of the plaintiff's title, he had been in possession of the lot, as proprietor, for more than ten years, setting up no title. The plaintiff was permitted to fylc a special answer, in which he set up anterior titles. Held, 1. That the action of the plaintiff must be dismissed, and both parties put out of court, each party paying his own costs, on the following grounds : 1. Because the plaintiff failed to establish, in evidence, his title to the lot in manner and form ?3 set up in his declaration ; and because his rights depended on a possession and claim of title, anterior to that asserted by him. 2. Because the plea was irregular, and insuflBcient in law, failing to allege, with sufficient certainty, an adverse title in defendant. 3. Because the issue between the parties was irregular, and they ought not to have been permitted to proceed to evidence ; and because the evidence taken was not warranted by the pleadings. 10 L. C. Rep., p. 22, Osgood, App., Kellani, Resp. In Appeal : Lafontainc, C. J., Aylwin, Meredith, Mondelet, J. Held, That in an action by the heirs of a wife commune en Mens against their ather, praying to be declared proprietors of one-half of a farm belonging to the communaitti, it is necessary to specify which half, if a partition has taken place ; and if not, to pray for such partition by their declaration. 5 L. C. Rep., p. 97, Lalondc ct cd, vs. Lahndc ; S. C, Montreal ; Day, A''anfelson, Mondelet, J. Held, That the law qmties was not received in 'customary France;' and the actual taking of possession was not necessary to insure to the purchaser the property he had acquired by deed of sale, as against another purchaser of the II . t 6 ACTION— PARTAQE. same property; and that this is law in Lower Canada. 2 Rev. dc Jur., p. 102^ Bowen, App., Ayer, Resp. In Appeal : Sewell, C. J., et dl. 1836. Held, 1. That the civil laws of England Jwere not introduced into Lower Canada by the Proclamation of 1763, nor by the Imperial Act of 1774. 2. That by the Imperial Act, 6 Geo. IV., c. 59, the English laws were intro- duced into Lower Canada, in respect of lands held in free and common soccage, in the particulars of conveyance, descent or inheritance, and dower. 3. That in order to acquire a valid title to real estate, there must be an actual delivery (tradition). 4. That to acquire a title by prescription under the^French law, there must be a possession natitrelle, 2 L. C. Rep., p. 369, Sitiort vs. Bouman ; S. C, Montreal ; Smith, Vanfelson, Mondelet, J. In Appeal : Rolland, Panet, Aylwin, and D. Mondelet, J. — Held, 1. That in this case the appellant's title was good and valid, by the law of England and by the law of France. 2. That the rules of the law of France arc applicable to the present case. 3. That actual tradition, according to the old law of France, is not absolutely necessary to convey to the purchaser the right of property ; that the feigned or symbolical tradition, such as the delivery of titles, lettersjpatent, and plans, may be suflScient, as in the deed set up in this case, from John Robertson to Patrick Robertson, in 1804. 4. That the said John Robertson and representatives, and particularly the appellants, had in fact possession of the lands in dispute in the cause. 5. That the deed from the widow and children of John Robertson, in 1833, to the respondent, was null by reason of the absence of title in the vendors, and ' by reason of fraud and collusion between the parties to the sale. 6. That the registration of a title which is void^will not render it valid, against the rights of a lawful proprietor, even when the latter has not registered his title. 3 L. C. Rep., p. 310, Stuart, App., vs. Bowman, Resp. ACTION— PARTAGE. Held, That in an action ofpartage (TMrediti, all the co-heirs must be parties to the suit, and if any are omitted, and no steps are taken by either party to bring them into the suit, the Court, upon final hearing on the merits, will dismiss the action quant Ci present. Laverdiere vs. Laverdiere ; K. B,, Q. 1816. Held, That if a right of way is granted without any designation of its precise situation, over a lot held by two joint proprietors in common, and if by a par- tage dcfait the passage is located and used by both for a period of time, each party must abide by it, and an action of portage will not be maintained to effect a new location. Duhamel vs. BeUanger ; K. B., Q. 1817. Held, That in an action of partage, the Court can enforce the payment of a soulte. — Bedigari. vs. Hamel ; K. B., Q. 1820. Held, That the action of /xtrto^rc betweenj co-heirs can be maintained, while any property of the ancestor remains to be divided. Trfmhhy vs. Girard; B., Q. 1820. ii J* '■ V i to Lower 4. ere intro- 1 n soccage, f an actual 1 here must 1 1. That in id and by ' case. absolutely feigned or plans, may to Patrick ' ACTION — LICITATION — REVENDICATION. 7 Held, That a petitory action cannot be maintained when the defendant is a co-proprietor of the land, but the plaintiff's remedy is by action en portage. 1 Jurist, p. 2S7,McAdam ts. Klngshury ; S. C, Montreal ; Day, Smith, Mon- delet, J. Held, That although a usu/ruitier be in possession, ar action en portage will lie for the assignment of the portion which belongs to each heir in the property which is 90 possessed. Poulin vs. Falardeau ; K, B., Q. 1821. As to whether an action ai portage is necessary to recover immoveables claimed to be possessed by defendant d, titre de douaire. See Action Petitory. Held, 1. That the widow, being seized of all the property of the community, may proceed, and is bound to proceed and make inventory ; and that an action to have such inventory made, is unnecessary and uncalled for. 2. In an action by the widow for a partage of the community, the minors, issue of the marriage, must be represented by a Tutor ad hoc, specially appointed to answer such demand en partage. 3, As to the matrimonial rights of parties where the husband residing at a post in the Hudson Bay Company's Territories comes to Lower Canada, and marries a person resident therein, and returns with her into the Company's Ter- ritories. 3 L. C. Kep., p. 101. McTavish vs. PtJce et al. ; In Appeal : Stuart, C. J., Panet, Aylwin, .J.; Holland, J., dissenting. ACTION—LICITATION. Held, 1. That an action en Ucitution always contains a demand en partage, 2. That in actions en licitation the parties, plaintiff and defendant, are in the same relative positions, each party at the same time being plaintiff and defendant. 3. That in such action, the cause of action is the joint ownership jsar indivis, and not the alleged indivisibility of the property itself. 4. That in the case submitted, litispendancc existed and was properly pleaded, although the preeent action simply contended for a sale by licitation, whilst the previous action contended for & partage or licitation. 5. That litispendancc must be reckoned from the service of the writ, and not from the day of the return. 12 L. C. Rep., p. 447, Boswell vs. Lht/d et al. ; S. C, Quebec, Stuart, J. ACTION— REVENDICATION. Where the King claims possession in right of the Crown, in an action of reien- dication or information of intrusion, the defendant must prove title in himself specially, and if he does not, judgment will be entered against him. Rex vs. Lclievre ;K.B.,Q. 1812. Held, That revendication for property attached, and tortiously abstracted, can be maintained. Merkley vs. CnviUier ; K. B., Q. 1812. Held, That goods sold for cash, and not paid for when tflken away, may be followed and recovered from the purchaser in an action of revendication, if it be i ] i i; ! ( 1ll-^\ 8 ACTION — REVENDICATION. instituted in eight days, and the goods are in the identical state and condition in which they were taken away. Aylwin vs. McNally ; K. B., Q. 1812. Held, That httres de rescision are not required to set aside a sale made by a tutor on behalf of his ward, without the authority of an assonblie de parens. Normandeav. vs. Amhlefnient ; K. B., Q. 1813. Held, That in revendkatmif}.i defendant is in possession as a lessee of the property demanded, he must plead his lease by exception dilatoire. CUmcnt vs. Hamel; K. B., Q. 1817. Held, That an action of revendlcation may be maintained for the recovery of title deeds. PcrrauU vs. Hausseman ; K. B., Q. 1817. Held, That in an action of revendlcation for an ox, it is no justification to plead that he was seized dommage faimnt on the defendant's soil, and no more. Reilly vb. Chandler; K. B., Q. 1817. Held, That in revendicatiwi, if the defendant pleads by exception tonporaire that he holds the property demanded as gardieti, appointed by a justice of the peace, »nd prays that the plaintiff's action may be dismissed, it is irregular. He can only stay proceedings until the person from whom he derives his authority to ©ccupy the property claimed is made a party to the suit. His exception, there- fore, ihonld be an excqition dilatoire. Paeaud vs. Bigin ; K. B., Q. 1818, Held, That revindication will lie against a bailiff who, under the authority of a justice of the peace, holds in his custody the goods of the plaintiff, if the cause of the detention be a matter over which the justice has no jurisdiction. Facaudva. B6gin ; K. B., Q. 1818. Held, That in reuendication, the title on which the plaintiff rests his demand must be specifically set forth in the declaration. Ponliot vs. Scott; K. B.,Q. 1820. Held, Tha*. a legatee can mantain an action of rcvcndiaition against a tiers ditmiteur o^ his legacy before he has obtained deliverance de legs. Morrin vs. Pdti&r; K. B., Q. 1820. Held, That a person charged with felony cannot maintain an action for bank notes supposed to be stolen, or taken from him when he was arrested, until the charge preferred against him has been disposed of. Carlisle vs. Sutherland ; K. B., Q. 1821. Held, That an affreighter cannot proceed by way of revendlcation, as in the case of an unlawful detention, against tho master of a ship, when such affreighter and master cannot agree as to the quantity of goods shipped, and as to the bill of lading to be signed. Query, As to the responsiblity of ships in relation to goods put on board lighters, to enable such ships to pass the shallows between Montreal and Quebec. 1 L. C. Rep., p. 313, Gordon ct al. vs. Pollock ; Q. B., Quebec; Stuart, C. J., Bowen, J. Held, In an action en revendlcation for timber taken from wild lands without authority, the plaintiffs sufficiently establish their proprietorship, by proving acts of possession of the land at different times, without producing title deeds. 3 L. C. Rep., p. 90, B. A. Land Co. vs. Stim2)son ; S. C, Montreal; Day, Smith, J. Held, In an action in factum quasi trover, the material inquiries are, touching conversion and poisession by defendant ; and as to his possession, whether he got ACTION — UEVENDICATIOK. 9 it by findng or otherwise matters not, was he io posscssiou being the gist of tlic inquiry. Fongere vs. Boucher ; K. B., Q. 1821. H':Jd, 111 an action en reveiuUcation for saw logs alleged to be cut within tlic limits of plaintiff's license, 1. That a license under the signature of an officer styling himself " Surveyor of Crown Timber Licenses," dated 10th July, 1851, is inoperative, inasmuch as up to the 8th August, 1851, the " Collector of Crown Timber Duties" was the only officer authorized by law to issue such licenses. 2. That in such licenses, by "lots occupied b/j squatters for three year.f excepted" arc intended township lots, as stated in the returns of surveys, and not merely those portions of lots improved by such squatters. 3 L. C. Rep., p. 466, Hall vs. Thompson ; S. C, Ottawa ; Bowcn, C. J., Day, J. Held, in an action en revendicatlon of moveables, 1. That the son of the plaintiff is not a competent witness for the plaintifi'. 2. That where a party is asked on faits ct articles whether he has not received the originals of certain letters, addressed to him by the adverse party in the suit, it is irregular to produce, with his answers, other letters not inquired of. 3. That where goods arc seized by revendicatlon, on the premises formerly occupied by the plaintiff and defendant as co-partners, and no proof is made of a demand, or of a refusal to deliver them up, and the goods arc delivered up under an interlocutory order of the Court, the defendant alleging by his plea that he never claimed the goods, and praying acte of his readiness to deliver them : the plaintiff's action will be dismissed with costs, it pppearing that the seizure was made without necessity. 11 L. C. Rep., p. 290, Hearle, App., Date, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, and Meredith, J. ; Mondc'et, J.> dissenting. Held, That main levee may bo granted in a soisie rcucndication by a judge in chambers, on the return made by the sheriff before the return day, and on affidavits. 3 Jurist, p. 185, Canadian Building Society vs. Laniontagnc, In Chambers : Smith, J. Held, That the plaintiff, whose horse had been stolen in the Eastern Town- ships, may revcndicate his property, although sold to the defendant at " Tatter- sail's" in the city of Montreal, and bought in good faith. Morrill vs. Umvin, Inf. T. M., Rolland, J. ; Cond. Rep., p. 60. Held, 1. Where A. B. & Co., of the State of New York, agreed to tan a quantity of hides, the property of C. D. & Co., of New York, and to deliver the leather when tanned to the latter, who were to have the exclusive right of selling it, and a commission for such sale, A. B. & Co. being entitled to a share of tho profits : and where one of the firm of A. B. & Co., instead of delivering the leather as agreed, conveyed it into Canada without the knowledge of his partner, under a fictitious name, and sold it for his o? n benefit : such facts do not constitute the goods " stolen goods," as alleged in the declaration. 2. That the goods not being stolen goods, C. D. & Co. have no right to revcn- dicate them from a party in Canada who purchased the same for value, unless such purchaser acted in bad faith. 3. That proof that the leather came in loose, and without inspection weights, murks, or stamps, instead of in rolls with the inspector's weights, stamps, and Hi \\. 10 ACTION — REVENDICATION. marks, as is the case ^here leather is bought in a market where there are Inspec- tors of leather, as in the city of New York ; and that by some of the witnesses the price paid was stated to be low, whilst others stated it to be the market price, is not evidence of bad faith sufficient to justify the plaintiff 's action, which was dismissed. 4 Jurist, p. 234, Fawcctt et al. vs. Thompson et ah; S. C, Mon- treal; Smith, J. Confirmed in Appeal. Lafontaine, C. J., Aylwin, Duval, Meredith, J. ; Mondelet, dissenting ; 6 Jurist, p. 1.39. By Vendor — Lien. A. sells a quantity of timber to B,, a part of the price only to be paid on the delivery of the timber. A. makes a delivery, and B. omits to pay any part of the price ; thereupon A. brings an action to rescind the contract of sale, and by process of revendication attaches the timber. Held, That this action could be maintained, and that the timber, so far as it could be identified, should be delivered over to A. Stuart's Rep., p. 538, Moor et ah, App., Di/ke et «?., Resp. In Appeal, 30th April, 1833. See also Aylwin vs. McNally, note p. 541. ib. Held, 1. That the vendor of goods sold on credit, avec terme, may revendicate the goods in the possession of the vendee, who has become insolvent. 2. That the privilege exists, although the goods have ceased to be unbroken en totalite, in the hands of the vendee. 3. That an affidavit is not necessary to obtain a writ of revendication in such case. 4. That service of the declaration may be made at the sheriff's office, under the 7th Geo. IV., c. 8. 8 L. C. Rep., p. 239, Robertson et al. vs. Ferguson; S. C, Montreal ; Mondelet, J. Sec the cases cited in note at p. 245 ; see also 2 Jurist, p. 101. Held, That a merchant cannot claim to be collocated by privilege upon the proceeds of goods sold by him, if such goods at the tim«f of the seizure had been taken out of the bales, distributed on the shelves of the purchaser, and mixed up with other goods. 6 L. C. Rep., p. 269, Tetn vs. Faircliild et ah, and Divers, 0pp. ; S. C, Quebec ; Bowen, C. J., Badgley, J. Held, 1. That a plaintiff, in an action of revendication of moveables, will not be permitted to take supplementary conclusions praying a condemnation for £25, value of the moveables, and £10 for damages. 2. That the only remedy was by motion for leave to amend. 10 L. C. Rep., p. 322, Poidin vs. Langlois ; Circuit C, Quebec; Taschereau, J. Held, That a vendor has a privilege on goods sold a terme, and delivered to the vendee, and which are still in his possession, he being insolvent, and that such goods may be seized by conservatory process to prevent their disappearing. 2 Jurist, p. 99, Torrance et al. vs. Thomas ; S. C, Montreal ; Mondelet, J. Held, 1. That the vendor selling without credit, and not paid, may revendi- cate his merchandize in the hands of a third party purchaser. 2. That such third party must prove that the sale was made on credit, and in default of so doing, the Court will presume the sale to have been for cash. ACTION — REVENDICATION. 11 8. That ^'.e fact that the grain revcndicated had been mixed in a barge 'with other grain vill not prevent revendication. 4 Jurist, p. 307, S4n6cal vs. Milh M al, and Taylor et al, Interg.; S. C, Montreal; Berthelot, J. Held, That a vendor d tcrme may, under the 177th Article of the Custom of Paris, issue a saisie conservatoire, and this without affidavit. 5 Jurist, p. 123, Ltduc vs. Tourigny ; S. C, Montreal ; Badgley, J. Held, That the vendor i\ terme of goods seized in his debtor's possession may prevent the sale, and is to be preferred upon the price, in preference to other creditors. 2 Rev. de Jur., p. 126, McClure, App., KcUey, Resp. In Appeal, 1826. Held, That a carriage maker, who has had the care of a vehicle during the winter, has a right of retention, lien, for his /rats de garde. 3 Rev. ^e Jur., p. rJOO, Rijland vs. Gingras; Q. B., Quebec, April, 1848. Held, That coals seized by revendication will not be delivered up, unless the amount of defendant's lien for wharfage be deposited in court. 5 L. C. Rep., p. 491, Bell vs. Wilson; S. C, Quebec; Stuart, Taschereau, Parkin, J. Held, That a hotel keeper has no lien on a piano brought into the hotel by a permanent boarder, for his board, as against the owner of the piano, by whom it had been leased. 2 Jurist, p. 281, Nbrdheimer et al. vs. Hogan et ul. ; S. C, Montreal : Smith, J. See same case, Cond. Rep., p. 86. Held, Nor has a lessor of a concert room such a lien on a piano hired tempo- rarily to the person giving the concert. 3 Jurist, p. 122, Pearce vs. the Mayor, dr., of Montreal; S. C, Montreal ; Smith, J. Held, 1. That a hotel keeper or boarding-house keeper cannot detain the effects of his boarder for his board, if such board is by the week or month. 2. That such privilege is given to the hotel keeper upon the baggage and effects of a traveller, passer, or ])ilerin. 4 Jurist, p. 356, Bleau vs. Belliveau ; S. C, Montreal ; Monk, J. Held, In an action en revendication, to attach in the hands of a tiers saisi the goods of the defendant, that a merchant's clerk has no privilege or lien upon goods of his employer for salary accrued after the institution of his action. 6 L. C. Rep., p. 463, Poutri vs. Poutri, and Laviolette, T. S. ; S. C, Montreal ; Day, Smith, Mondelet, J. Held, 1. That a proprietor of goods cannot recover them by revendication, without payment or tender of the advances made upon them to a third party. 2. That the party making such advances is not in bad faith, although aware that the goods did not belong to the pledgor, and that the advances were for his own private purposes. 3. That the lien exists, notwithstanding the pledgor gave for the advances his promissory notes, which were negotiated by the defendant, but came back into his hands unpaid. 4 Jurist, p. 30, Clark vs. Lomer et al. ; S. C, Montreal ; Badgley, J. Held, Where an affidavit in an action of revendication is manifestly bad, it will be quashed on motion ; but where it invites an issue upon the allegations, the proper proceeding is by exception h la forme. 9 L. C. Rep., p. 413, ! I 12 ACTION — POSSESSORY. Jiouth ct uL vs. McPhcraou ; S. C, Montreal ; Budi;loy, J. Same case, 4 Jurist, p. 45. Held, That the vendor of u horac with term of payment, has u privilege upon the proceeds of the horse when Hold (in the hands of the purchaser) at a judicial sale : and that there was no novation of the debt, by the vendor having taken a mortgage for the price. 12 L. C. Hep., p. 142, Doughs \s. Parent viti^ Lurne, 0pp. ; C. C, Quebec, Taschereau, J. Held, That the saisie rcvcniUcution by the vendor, a Icrmc under the 177 article of the Coutamc dc Paris, cannot validly issue without an affidavit. 12 L. C. Rep., p. 252, Punton et id. vs. Thompson ; C. C, Quebec ; Stuart, J. Held, That the saisie conservaluirc by the vendor of goods sold A tcrme may validly isfluo without affidavit. 6 Jurist, p. 24, Lcditc vs. Tourigny dit Beaudin ; S. C, Montreal, Badgley, J. Held, That according to the Jurisprudence of Lower Canada, the vendor h tcrme has a right to seize goods sold in the hands of a vendee, oi dioonjitiire, G Jurist, p. 324, Lcdac vs. Tourigny dit Bcmidin ; S. C, Montreal, Monk, J. ACTION— POSSESSORY. 11£int£urande. Held, That to niiiliitain an action en riintigrandcihc plaintift" must have had a possession of a year and a day, more especially if this possession was the result of a voie de fait : 3 Rev. de Jur, p. 361, Sumsou vs. Boldiic ; Q. B., Quebec. 1848. Held, That a judgment of riiiitigrande and of damages may be asked and awarded in one and the same action. Cote vs. Riome ; K. B., Q. 1818. Held, On demurrer to a count in a declaration en riintigrande, that an alleg- ation of possession by plaintiff of the land claimed, for a long space of time next before the tresspasses complained of, is sufficient without alleging a possession '.mnale. 1 L. C. Rep., p. 328, Stuart \b. Longleg; S. C, Montreal; Day, Vanfelson, Mondclet, J. Held, That a possessory action cannot, after return into court, be by consent changed into an action au, pititoire. 4 Jurist p. 42, Richard vs. Denison. In Appeal : Lafontaine, C. J., Aylwin, Duval, J. Held, That possession of a parcel of land acquired for a mill site, and once Ibrmally delivered, is not lost, nor is an adverse possession acquired, by such parcel not being separated from the rest of the farm, and that a trouble will be considered to date from the time the defendant took possession of it for the purpose of making a dam, thereby preventing plaintiff from using it for the purpose for which it was acquired. 4 Jurist, p. 53, Elwin vs. Royston ; S. C, Sherbrooke ; Day, Short, Caron, J. COMPLAINTE. Held, That possession for a year and a day antecedent to the day ou which the action is instituted must, en complainte, be alleged in the declaration and proved. Jourdain vs. Vigoureux ; K. B., Q. 1809. ACTION— I'OSSESSOKY. i:! Ik'liI, That romjihiuifi' will not lie ngalnst a *o»M-i'o^^/' for an act dono by him purpuant to tho provisions of an hom()lo;j;utcJ proris-vcrbal. iJogeur vs. Aurtil; K. B., Q. 1820. Held, That an action of annplainte cannot Ho against tho Fahriqtn by a parishioner for a troublo to tho plaintiff's possession of his pow in the parisli church ; for the possession of the pew is in the Fabriquc, and he holdf it for them ; Wertrr vs. Fohrtque lU Quibcc ; K. B., Q. 1820. Held, That complainte cannot bo maintained by one j^arishioncr aj^'ainst ano- ther for disturbance by entering his pew ; Anger vs. Gingras; K. B., Q. 1819. Held, That complainte will not lie against a sous-voyer for an act done in obedience to a procit-vcrbat of tho Grand Voyer in a matter within the limit? of his authority. Molsun vs. Gauvin ; K. B., Q. 1821. Nor against a defendant who carries his drain into that of his neighbor, both being within the limits of a public street ; RnhitmlU vs. Campbvll ; K. B.. Q. 1821. Held, That no individual can maintain an action of complainte for a vole tie fait committed for the opening of a drain in a public street. RobltaUle vs. Campbell ; K. B., Q. 1821. RiaiiT OP Fishing. Held, That a cemitaire, who has been in possession of the right of fishing in the St. Lawrence, in front of his property for thirty years and upwards, and whose titles declare he is the proprietor of such rights, may bring a possessory action when disturbed in his possession, without being obliged to produce a title from the Crown, such title, so far as the parties are concerned, being presumed. 6 L. C. Rep., p. 242, Gagnon, App., Iluilon, Resp. In Appeal : Lafontaine, C. J., Aylwin, Meredith, J. Held, That to maintain an action en complainte for a trespass of a fishery on the beach of the River St. Lawrence, it is necessary to prove possession under title from the Crown. 1 Rev. de Jur., p. 354, Morin vs. Le/evre dit Bihnger : K. B., Quebec. 1816. Title— Description. Held, That title deeds of property which do not describe its extent cannot give or determine limits to acts of possession, but the alleged possessor will be in the'same position as if he had no title whatever. 8 L. C. Rep., p. 140, Namldit Labrie vs. CUment dit Labonti ; S. C, Quebec ; Meredith, J. ACTION— COMMENCEMENT OF. Held, That actions are decided according to the state of facts at the time they were commenced. i?o5icfta«d vs. iVaser ; K. B., Q. 1817. 11 AOTlOy— BORNAGB. ACTION—BORNAOK. Hold, That the actioo en hornngv cannot be maintained, if tho lands of the plaintiff and defendant are separated by a public highway. Blnnchel va. Jobin ; K. B., Q. 1817. Held, That a mur iniioycn erected by agreement by two proprietors of adjoining lots of land, in a bar to an aotion of boraage inatitutod by either of them. Forlkr vs. RhinnH ; K. B., Q. 1817. Held, That the defendant iu an action of bornage, if he holda in right of another, muat set forth tho fact by exception, and tho name and reaidenco of the poraon from whom he holds. Fortier vs. Rhinart; K. B., Q. 1818. Held, If the declaration rn bornnge shows that the estates of the plaintiff and duiendant are not contiguous, the action must be disimsaod. Thiriault va. Lc- c7€/-c;K. B., Q.1818. Held, That in bornage. tho defendant may claim and prove title by prescrip- tion and possesaion outre son litre, but he cannot claim contre son litre. Thi- riault vs. Leclerc; K, B., Q. 1820. Hold, That evidence of an existing borne, without any further testimony, affords no proof of title of anjr description. Thibault vs. Rancourt ; K. B.. Q. 1820. Held, That in an action en bornage tho defendant cannot be compelled to take proceedings to compel his neighbors to bonier with him, and a declaration with conclusions to that effect will be held bad on demurrer. 8 L. C. Rep., p. 218, Fradet vs. Labrerquc ; S. C, Quebec ; Chabot, J. Held, That in the case submitted, an aotion en bornage might be brought, inasmuch as no traces of a previous bornage remained, the lands being only separated by a cloture d'cmbarras. 7 L. G.Bep., p. ZQ2, Lanouette ct al, App., Jackson, Resp. In Appeal : Lafontaino, C. J., Aylwin, Duval, Caron, J. Held, 1. That the prescription of ten years with title, does not run during tho minority of the party to whom it is opposed. 2. That the existence for twenty years of a fence between two properties can not defeat an action ai bornage. 3. That the want of publication and insinuation of a will, cannot be opposed to the possessor aninvo domini suing en bornage, nor by a party deriving title under the will. 1 Jurist, p. 137, Devoyau, App., Watson, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, In an action en bornage where the defendant pleads that he has always been ready to bound, and prays acte of his willingness to do so, but also prays that plaintiff's action be dismissed with costs, that the defendant must pay the costs of suit ; cost of bornage to be divided. 1 Jurist, p. 283, Danserau vs. Privi ; S. C, Montreal ; Day, Smith, Mondelet, J. Held, In an action of botiiage without previous notice, when the defendant declares himself ready to bound, the plaintiff will be condemned to pay the costs of tfce action. 2 Jurist, p. 81, >S/act vs. JS^/^o^•^ In Appeal: Lafontaine, C. J. ^ Duval, J., for maintaining judgment ; Aylwin, J., Caron, J,, for reversal. Con- firmed by operation of law. ACTION — UYl'OTUKOARY. 16 Hold I Tliat in an action eti harntigr, the existence, for upwards of ton years, of a inur mltot/i'n along a portion of a division lino between two city propertioa, and of a fence alons the remaining portion nf such division line, is no bar to the action. 'J. That whore it is established by a surveyor's report, that the wall and fence encroach on the plaintiff's property, the defendant must piy the aosta of the action ; the costs of survey to be boriir equally by both parties. 2 Jurist, p. 204, AfrF'U-lane. vs. Thui/n- ; S. C, Montreal. Held, That under the circumstances of this ca-sc, an expertise will bo ordered to run a line so as to give defendant his full quantity of land according tc liin title. 3 Jurist, p. UB, Lambert vs. Bertrand ; S. C, Montreal; Badglcy. J. Held, In Circuit Court, Quebec, Power, J., whore a defendant in an actioa fu hornnge. pleaded : 1. A general issue ; 2. An exception that ho was always ready to have the lines run, but was not requested to do so, and where a consent motion was fyled, naming a surveyor to draw the lino of division, that the costs of survey would be divided, and plaintiff condemned to costs of suit. Judgment confirmed on appeal to tho Superior Court, (Bowen, C. J., dissenting) Bacquot, Duval, J. In appeal to Q. B., Stuart, C. J., RoUand, Panet, Aylwin, J. Held, That the defendant should have been condemned to costs, his defence having denied plaintiff's right of action. 2 L. C. Rep., p. 486, Weymcas ct ah, App., vs. Cook, Rcsp. ACTION-HYPOTHECARY. Held, That a tiers .Ufcntcur is never presumed to bind himself personally. 2 L. C. Rep., p. 243, Bimquedii Pcitple vs. Glngras ; S. C, Three Rivers; D. Mondclet, Vanfclson, Meredith, J. Held, That under the Imperial Act, 9 Geo. 4, c. 77, in force in this Province, no general mortgage can be created against lands in the Townships held in free and common soccage. 2 L. C. Rep., p. 449, Boston vs. Classon ; S. C, Montreal ; Day, Smith, Vanfelson, J. Held, That conclusions praying that certain lands be declared hypothecated for the amount demanded, without praying that tho land be sold in the ordinary course, are technically defective. 1 Jurist, p. 183, Piatt et at. vs. Piatt et al. ; S. C, Montreal; Smith, Chabot, J. Held, That an hypothecary action against several defendants jointly, as ditcn- teurs of a lot of land, cannot be maintained if the defendants do not possess par indivis but separately, as to parts of the lot. 1 Rev. de Jur., p. 232, Panet ct al vs. Lorin et al. ; Q. B., Montreal, 11 Feb., 1832. Held, That in an hypothecary action the plaintiff must prove a mortgage debt, and that the land mortgaged is in possession of the defendant. Beauhicn vs. Sire,/ ; K. B., Q. 1817. Discussion. Hold, In an hypothecary action, that a special mortgage is no bar to an ex- ception of discussion, and that a tiers ditenteur sued by the original vendor, may validly plead that exception. -'1 I 1'' i< ■ 1 1 ItJ ACTION — HYPOTHECARY. 2. That the i ; S. C, Quebec; Bowen, C. J., Duval, J. In an action to account, on an agreement to advance moneys (for the building tif a ship) to be reimbursed out of the proceeds of the sale of the ship (which the lender was authorised to send to his friends in Liverpool or London, and for that purpose, to appoint and substitute attorneys or agents,) together with all expenses and charges attending such sale, and also a commission of 5 per cent. Held, 1. That such account need not be in the form of a comjitc de tntelle, and may be in the usual commercial form. 2. That in addition to the 5 per cent, commission, the lender may charge the commission of the agent in England, on the sale of the ship at four per cent., the usual charge there when such sale is made on credit, although part was paid within a few days after the sale, and also a bank commission of J per cent, charged by the sub-agent, and which is usual in England on similar transactions. 3. That the lender is not liable by reason of the bankruptcy of his substitutes for moneys due by them ; and the principal must bear such loss, inasmuch aa under the circumstances, the substitutes were his own attorneys or agents, there being no evidence that the agent was not justifiable in appointing the said sub- agents. 5 L. C. Rep., p. 17, S^mcs, App., vs. Lampson, Resp., and vice versa. In Appeal: Lafontaine, C. J., Panet, Aylwin, Mondelet, J. Held, In an action pro socio, that where the plaintiffs allege that they have rendered an account annually, to the defendants, of the portion of the partner- ship business under their control, it is"not necessary to offer and fyle, with their declaration, such account ; but, in order to maintain the action, the rendering of such account must be proved. 8 L. C. Rep., p. 214, McDonald et al. vs. Miller et al. ; S. C, Quebec ; Meredith, J. Action to account against a curator. See Curator Desherance — Crown. Held, 1 , That a mandataire who does not execute the mandat committed to him, must notify the mandant of the inexecution of the mandate. 2. That in an action to account by a creditor, party to a deed of assignment from insolvent debtors to the defendants, the defendants who pleaded that they had (jold the trust estate to one of the insolvents who had undertaken to pay the creditors, were not thereby absolved from liability to account. iji<. I I 20 ACTION — ACCOUNT. 3. That the Court will order an account, reserving, until a later stage in the case, the question of the liability of defendants for the whole or a part of the demand of the plaintiff. G Jurist, p. 32, Torrance vs. Chapman ct al. ; S. C, Montreal ; Berthelct, J. Absence under coutume. — Sec Prescription. Absentees. — Sec Ocirator. ACCROISSEMENT. — Scc UsUFRUCT — WiLL. Account.— /S'cc Action Account— Tutelle. Action aoainst Tutor. — See Tutor. Action, Cause op. — See Pleadings Exception D(5clinatoire. Action, Cause of. — See Pleadings Exception Ddclinatoire. Action en D£cii£ance. — Not necessary in commercial cases. Action en R^int^orande, judgment reversed for vagueness. — See ENQUiiES, Notice of. Action, Notice of. — ^ee Officer Public— Jury Coroner's. Action Rescisoire, duration of, Sec Inventory when null. Action Qui Tam. — See Penal Statute. Action, Return of before Return day. — See Capias. Action R^vocatoire. — See Fraud Revocation — Registration, Bailleur de Fonds, — Landlord and Tenant, Resiliation. Action, Service of. — See Domicile. Adjudicataire's Rights. — See Decret defaut de Contenancc — Opposi- tion. Adultery. — See Husband and Wife, Adultery. Affidavit, for capias. — Sec Capias — Action Revendication. Affidavit, for attachment. — See Motion to Quash. Ajournement. — >S^ee Pleadings — Exception £i la Forme. Alimentary Allowance by Executor.— /See Will — Executor. Ameliorations. — See Impenses et Ameliorations — Action Petitory — Action Hypothecary. Ameublissement. — See Marriage — Douaire. Architect. — See Assumpsit Architect — Pleadings — Joinder, — Services. Assignment.— >S'ee Cession. Attachment, against body. — See Contrainte — Capias. Attorney, Power op. — See Action Petitory — Evidence Power of Attorney, — Costs. Auctioneer. — See Principal and Agent — Sale of Goods, Auction. AvEU JuDiciAiRE. — See Evidence Admission ; also Bills and Notes In- dorsation. II' : ALIEN. 21 AINESSE, DROIT DE. Hclci, That the droit (Vaincssc being a proprietary right, cannot be claimed under a will, by tlie eldest son of the testator as usufructuary legatee, but only as Mriticrab intcstat. G Jurist, p. 128, Cuthhcrt vs. Cuthhcrt ; S. C, Montreal; Badgley, J. TITORY — ALIEN. Held, That aliens cannot sue in forund pavj)cm, Barrij vs. Harris; K. B., Q. 1810. Held, That an alien being guardian to children, who arc minors resident in a foreign country, can support an action of account on their behalf Allen vs. Coltman; K. B., Q. 1811. Held, That aliens cannot take lands by descent and inheritance. Rex vs. BcrtMot; K. B., Q. 1811. Held, That if a .submission to arhitres be of all matters in dififcrence, they must decide upon all the points in dispute between the parties ; but the Court will not presume that any point has been left undecided ; and if Buch be the fact, it must be shown. Fairfield vs. Butclmrt ; K. B., Q. 1821. Held, That an alien domiciled in Canada, but not naturalized, is incapable of taking real property by devise. Stuart's Rep., p. 143. Pacqnetys. Gasjnird; K.B., Quebec, 1811. Held, That an alien can inher icpcrsonalestateof a British subject. Stuart's Rep., p. 345. Surony vs. BcK ; K. B., Quebec, 20th April, 1828. Held, 1. That an alien cannot devise by last will and testament. 2. That the succession of an alien will devolve to his grandchildren, natural born subjects, to the exclusion of his own children who are aliens. Stuart's Rep., p. 460. Donegani ct ah vs. Doncgani; K. B., Quebec, 1831. Held, 1. That the question of who is an alien, is to be decided by the law of England ; but when alienage is established, the consequences which result from it are to be determined by the law of Canada. 2. If an alien dies without issue, his lands belong to the crown, but if he leaves children, some born in Canada, and others not, the former exclude the crown, and then all the children inherit as if they were natural born subjects. 3. Where an alien has a son who is also an alien, the children of the latter inherit from the grandfather, to the exclusion of their father. 4. Although an act of the legislature, passed after judgment rendered in an original jurisdiction, may affect the rights of a party as they existed at the insti- tution of a suit, this circumstance cannot be taken advantage of in an appeal from the judgment. Stuart's Rep., p. 605. Donegani, App., vs. Doncgani ct alj Resp. In the Privy Council : 2nd Feb., 1835. Held, That the plaintiff is an alien enemy, must be pleaded by an exception peremptoire tcmporaire. BclVrnghurst vs. Lee ; K. B., Q. 1813. Held, 1. That under the 12th Vict., c. 197, which enacts that every alien shall have the same capacity to take, recover, and transmit " real estate " in all parts :| ■:i! 901 AMENDMENT. of the province as natural born or naturalized subjects, the alien is placed in the samo position as the natural born subject, and can claim conjointly with a natu- ralized heir, both real and personal property. 2. That although moveable property be not mentioned in the 12th section of the act, it must be taken to bo included in the larger term " real estate." 4 L. C. Rep., p. 310. Corse et a/, vs. Corse; S. C., Montreal; Day, Smith, Mondelet, J. ALIMENT. Held, 1. That a debtor arrested on en pins by several plaintiffs, is entitled to an alimentary allowance from the plaintiffs in each action. 2. That tender of payment made in gold, silver, or copper coin, defaced or stamped (by bending or stamping) is illegal. 3, That the provisions of the Imperial Statute 16 and 17 Vict., c. 102, respect- ing such current coin, apply to this country. 2 Jurist, p. 105. Warner vs. Tyson; Crawford \s. Tyson; Jlcrrittxs. Tyson; S. C, 3Iontrcal ; Day, J. Held, That tender of an American gold dollar is not a legal tender. 2 Jurist, p. 189. Bruncau vs. Miller ; S. C, Montreal; Smith, J. Held, That children who are iu law bound to furnish aliment to their parents will be condemned jointly and severally, and that the action may be directed against such of the children as the parents may select. 5 Jurist, p. 99. Lau::on vs. Connoissant et vir. ; C. C, Montreal ; Monk, J. Held, In an action by a father against a son for aliment, that the action will be dismissed on proof of an offer by the defendant to receive and lodge the plain- tiff in his own family. 3 Rev. de Jur., p. 83, Valliercs vs. VaUieres. Inf. Term, Quebec, 1847. See Rente Viagcre. AMENDMENT. Held, 1. That amendments to a declaration which change the nature of the action will not be allowed. 2. That the amendments allowed in the present case, by the court below, did not change the nature of the action. 6 Jurist, p. 287, Lanibe, App., il/(tn7i,Resp. In Appeal : Lafontaine, C. J., Duval, Mondelet, Bcrthelot, J. Held, That on allowing a material amendment to plaintiff's declaration, after issue joined and during cnquete, full costs will be allowed as in a cause settled at the stage it then was at. 6 Jurist, p. 311, Symc et (il. vs. Ueward; S. C, Mon- treal; Day, Smith, Mondelet, J., 1856. Held, That a plaintiff cannot amend his declaration to such ..n extent as to substitute one action for another, Casgrain vs. Fay ; K. B., Q. 1817. Held, That process ml respondendum may be amended. Put(crson\s. Berime; K. B., Q. 1809. APPEAL. 28 Held That a bill of particulars is in the nature of an (irticulation de/aits, but it is also a confession. Therefore, although it may be amended as to mere error, it cannot be amended in an essential matter of substance. Rc'tffenstchi V8\ HoUnmn; K. B., Q. 1821. Held, That an amendment of a declaration based upon a fact posterior to the action will not be allowed. 1 Jurist, p. 42, Mdrsahis vs. Lcmgc ; S. C, Mon- treal ; Day, Smith, Mondelet, J. Held, Where it results from the proof that the facts proved do not correspond precisely with the allegations, that the declaration may be amended on payment of costs without prejudice to the evidence, and with right to defendant to re-plead within eight dayj*. 2 Jurist, p. 194, Bmulrcini vs. Lavender ; S. C, ^Montreal ; Day, J. Held, That an amouduient of a declaration will be permitted by changing the tlatc of a lease set up as of the 22nd, instead of the 23rd February, 1856, on payment of costs. :J Jurist, p. 136, Frotliingh'tm vs. Gilbert ; S. C, IVlontrcal ; Smith, J. Held, That a writ of summons, as well as a declaration, may be amended. 1 L. C. Eep., p. 390, Bntik «f B. X. A. vs. Tj ; Q. B. In Appeal : Stuart, C. J., Rolland, Panet, Aylwin, J. Held, That a motion made by a defendant, opposant below, for leave to appeal to the Privy Council, from a judgment rendered in appeal, dismissing an oppo- sition a fin d'annuUer to the seizure and sale of immoveables, will be rejected as not falling within the provisions of the Statute 34 Geo. 3, c. G, and containing no demand of money. 1 L. C. Rep., p. 274, Lcsperancc, App., vs. Allard, Resp. In note. In Appeal : Stuart, C. J., Rolland, Panet, Aylwin, J. Held, 1. That a respondent, who has fyled his reasons of appeal and consented to an inscription for hearing, has thereby waived all objections as to the return of the writ. 2. That the return to a writ of appeal may be signed by one judge although ddressed to two or more judges under the 25 Geo. 3, c. 2, see. 44. 1 L. C. Rep., p. 401, Henry vs. Holland. In Appeal : Rolland, Panet, Aylwin, J. Held, In Appeal : That there is no appeal from an interlocutory judgment of the Superior Court dismissing an exception of Vitispcndance, which merely suspends proceedings. 1 L. C. Rep., p. 411, Donegani vs. Qucsncl. Rolland, Panet, Aylwin, J. 2Ci AI'PEAL. .H II Held, That nn appeal Joes not lie to Her Majesty in Her I'rivy Council, from u judf^niontof the Court of Appeals, reversing tlic judgment of the court below, by which the appellant's action was dismissed on n tlt'/riisc ni dmit to the declara- tion. C L.C. llep., p. 1-17. In Appeal: ic««r /<(/, Rcsp. ; Lafon- tainc, C. J., Aylwin, Duval, Caron, J. The plaintiff produced a copy of a decree of Her Majesty in her Privy Coun- cil, reversing a judgment of the Court of Queen's Bench, appeal side, whicli confirmed a judgment of the Superior Court, 3Iontrcal, dismissing the plaintiff's action. This decree ordered the Superior Court to cause judgment to bo entered up for the original plaintiff, which was prayed for by petition. Held, 1. That the Superior Court must comply with such order and enter up judgment for the sum demanded by the plaintiff's declaration. 2. That the Court will grant the dei'endants m-tv of their declaration of the decease of one of the defendants, but not that part of their motion which prayed that all proceedings be suspended until a rcprigc d'insfdiicc be made. 11 L. C. Rep., p. 495, lioiik <>/ B. N. A. vs. CnvlUia' ct nl; S. C, Montreal ; Smith, J. Appealed. Held, That in determining the fjuestion of the value of the object in dispute, upon which the right to appeal to Her Majesty in her Privy Council depends, the rule to adopt is, to look at tlie judgment as it affects the interests of the party who is prejudiced by it, and who seeks relief in appeal.. 12 L. C. Rep., p. 154, McFi(rlaneit tiL, App., Ln, Kosp. In Appeal : Aylwin, Duval, Meredith, Mondelet, J. Held. That an appeal will be dismissed if the writ of appeal is returned after the fifteon day?". '•> llev. do Jur,, p. 107, Cifi/ Jiuii/c vs. tSnitriii. In Appeal: 1847. Jud. tl. ATTORNEYS. Associated — Substitution. Held, That proceedings signed by one of two associated attorneys, in his own name, after his associate has ceased to practice, will not be rejected in any case, unless the adverse party move without delay for their rejection. 6 L. C. Rep., p. 194, Tidmiirsh vs. Stejplicns et al. S. C. Montreal; Day, Smith, Badgley, J, ; See 1 Jurist, p. 16. Held, That notice of motion received by one of two attorneys after the eleva- tion of his previous partner to the bench is sufficient. 5 L. C. Rep., Dubois vs. Ihibois. S. C. Montreal , Smith, Vanfelson, Mondelet, J. Held, That where two attorneys are associated in partnership, and one is ele- vated to the bench, service on the remaining partner is sufficient, although no substitution has been made. 9 L. C. Rep., p. 395, McCarthy vs. Hart. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Meredith, J. ; Mondolec dissenting. Held, That under the circumstances of -this case, the substitution of an attor- ney for the appellant, in lieu of the one who previously represented him, is an acquiescence in all the proceedings of the first attorney, there being no disaveu, and this, notwithstanding any irregularities in the said proceedings. 8 L. C. Rep., p. 494, Burroughs, App., Molson etal, Resp. In Appeal; Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, That where a suggestion of the death of one of the defendants is fyled .of record, a motion to compel the remaining defendants to substitute an attorney ATTORNEYS. 85 in the place of the attorneys of record, one of whom has been promoted to the bench, will not be granted until such suggestion is disposed of. 9 L. C. Hep. p. 224, Sunigrdu vs. Robertson et al. S. C. Quebec ; Chabot, J. Held, That a substitution of new attorneys in a cause, will not be permitted unless there lie a full revocation of the authority of the attorney of record. 5 Jurist, p. 98, Mann et al. vs. Lamhe. S. C. Montreal; Berthelot, J. Appearance— Vacation. Held, 1. That a plaintiff has no right to question the authority of an attorney to appear for a defendant not served with the writ and declaration, the return of service being, that service was made at the defendant's last domicile, and that he had left the province and had no domicile therein. 2. That such appearance being of record, no steps can be taken to call in the defendant through the newspapers, nor to proceed ex parte. 6 L. C. Rep., p. 311, McKercher, App., Simpson, Resp. In Appeal ; Lafoutaine, 0. J.. Aylwin, Duval, Caron, J. Held, That no appearance need be fyled by an attorney on behalf of a defen- dant between the 10th July and 31st August, both inclusive. 1 Jurist, p. 17, BcU vs. Leonard, S. C. Montreal; Day, Smith, 3Iondelct, J. Held, Nor any plea fyled in vacation, even in cases of ejectment, where it is alleged that the lease has expired, and defendant refuses to quit. 3 Jurist, p. 255, Clairmont et al. vs. Dickson. In Chambers, Montreal ; Smith, J, Held, That a preliminary plea need not be fyled in vacation, within the four days referred to in the 16th Vict., c. 194. 4 Jurist, p. 296, Booth vs. The Montreal and Bijtown Railway, Montreal ; Mondelet, J. Held, That where an attorney has acted for a party in a cause after judg- ment, proceedings had in the cause by another attorney, will be rejected from the record, on motion of the first attorney. 6 Jurist, p. 28, Gilhspie et al. vs. Spragg and divers intervening parties. S. C. Montreal ; Badgley, J. Held, That where a defendant, not served with a writ of summons, appears by attorney, such appearance will be considered valid, and will not be rejected on plaintiff's motion 6 Jurist, p. 30, Whitney vs. Dunning, & T. S. S. C. Montreal ; Smith, J. Prescription against. Held, 1. That by the 12th Vict. c. 44, sect. 2, the prescription against the fees and disbursements of an attorney ad litem is not an absolute prescription, y?/i de non recevoir. 2 That a plea invoking such prescription will be dismissed upon demurrer, if by such plea, the defendant does not allege payment, and tender his oath. 11 L. C Rep., p. 175, Rosa vs. Quir.n. S. C. Quebec; Taschereau, J. Held, That the prescriptions under the 12th Vict., c. 44, are absolute prescrip- tions. 1 Jurist, p. 275. Lepailleur vs. Scott et al., S. C. Montreal ; Day, Smith, Mondelet, J. '|i| I 'm til f 36 ATTORNEYS. Held, That whore an attorney, party to a cause, appears in person, he is en- titled to his fees against liis adversary. 11 L. (). liep , p. 483, Brown vs. Gugy and Giigij, 0pp. S. C. Quebec; Tascliereau, J. Hold, That the attorney's costs arc not suljoctto the prescription of two years. 1 llov. de Jur., Andrews vs. Birch. Comr's. Ct. Quebec; W. K. McCord, J, 1845. So held in Huot va. Parent et al. Q. B. Quebec ; Bowen, Panct, Bedard, J. 1840. Held, That an opposition will be maintained against an execution by an attor- ney for costs, founded upon a note given by the attorney to i third party, and endorsed to the opposant ; but the opposant will get no costs awarded but will be condouined to pay the costs of •execution, not liaving notified the attorney that ho was the holder of the note. 1 .Rev. do Jur., p. 334, CvitirUl vs. Gormhy et al. K. B. Montreal ; Oct., 1838. Co8Ts— Privilege. Held, That the costs in a case cannot be attached by a creditor during the pendency of a cause as belonging to the party, to the prejudice of his attorney. 2 L. C. Ilcp., i> 273, Gauthier vs. Lemunx. S. C Quebec; Bowen, C. J. Duval, Meredith, J. Held, That a plaintiff has a privilege upon the defendant's mo\ ables for the whole of the costs, and this in preference to the landlord eluiniing his rent by opposition. 4 L. C. Hop. p. 75, Jcvcs vs. Kclli/ and Marquis, Oppost. S.C. Quebec; Bowen, C J- Duval J. Held, That an advocate may rccnvcr a (imftiim miTitit for fees an 3 profes- sional services, which are of a nature sufficiently defined to come under a genera! rule of charge, but not for services of an indefinite kind, such as consultations, for which the rate of charge is arbitrary. 2 Jurist, p. 182,DevUiiva. Tumbleti/. S. C. Montreal ; Day, J. Bail. Held, That a practising ban-ister or attorney cannot become bail or surety in any proceedings in the Superior Court 3 L. C. Hep., p. 57, Rontier vs. Gin- gra». S. C. Quebec ; Bowen, C. J., Meredith, J. See also 10 L. C Hop., p. 190, Landin vs. Larue. In Appeal j Lafontaine, C. J., Aylwin, Duval, Mondelet, J. Witness Fees. Held, That an attorney is not liable for expen.ses, taxed in favor of a witness summoned by him at request of his client. 3 L. C. Bop., p. 109, Laroche vs. Holt et al. C. C. Quebec; Power, J. Sheriff's Fees. Held, That the attorney ad litem is responsible to the sheriff for his fees and disbursements on writs of execution issued on the fiat of such attorney. 7 L. C. Rep , p. 329, Boston ct. al., App., Taylor, Resp. In Appeal ; Lafootaine, C. J., Aylwin, Duval, Caron, J. Same case, 1 Jurist, p. 60. • BANKRUPTCY. 87 Tax. Held, That under tlic act 13 and 14 Vict., c. 37, sect. 15, advocates not prac- tising are not liable to the tax thereby imposed for paying reporters. 1 L. C. Rep, p. 13, Monk et ul. vs. Vigcr. S. C. Montreal j Smith, Vanfelson, Mon- delet, J. Withdrawal of Action. Held, That the "withdrawal" of an action by plaintiff's attorneys, signed by the defendant personally, who also signed a motion to the eifect that he consented to the dismissal of his incidental demand, and authoriiied and directed his attorneys of record to countersign such consent, and requiring them to desist from all fur- ther proceedings therein, and who also appeared before two of the justices of the Superior Court when his attorneys prayed for a writ of appeal and objected to the allowance of the writ, declaring himself s vtisfied witli the judgment, is valid. That a party can desist from his demand without the consent or concurrence of his attorneys. 6 L. C. Rep., p. 201, ^y/i, App., Ward et al.^ Resp In Appeal; Lafontaine, C. J., Aylwin, Caron, Badgley, J. Counsel Fee. No action can be maintained for a fee paid to counsel, Bcrgemn vs. Panet. K. B. Q. 1809, No. 53. Attorneys condemned personally to costs of an opposition to a judgment. Cons. Sup., No. 73. Attorney's power to certify copy of judgment served. See "Judgment." Attorney's co.sts. See Costs, Privilege, Attorney, Action for slander against. See Damages, Slander. Attorney,, dominus litis. See Enquete, Reopening. Attorney, Competency of, as witness See Evidence, Competency. AxToa; BY. See Officer of Court, Desaveu. BANKRUPTCY. Assignees. In an action by a vendor of timber against the assignees of insolvent vendees, in which the timber was seized by righ t of stoppage i» tnmsitu, as if there had been no delivery. Held, That the rule applicable to cases of constructive delivery and possession was not applicable, there having been an actual delivery to, and possession by the vendees, although the timber had not been culled or counted. 1 L. C. Rep , p. 21, Leoeif vs. Tumbulf et id. S. C. Quebec ; Bowen, C. J., Duval, Meredith, J. The plaintiffs, as assignees of a bnn/crajjt, brought an action to obtain an account of goods consigned to defendants' firm, and the defendants pleaded that tne con- signment was made by one of the plaintiffs, as assignee, formerly defendants' part- ner, with whom a settlement was made by note, which was paid Held, S. C. Montreal. That no valid discharge was given by one assignee, and judgment rendered for plaintiffs. 88 BANKRUrrCY. Held, In Appeal ; Rolland, Panet, Aylwin, J. That the consifjnincnt was niade by one of the assirim«/«cte void ; and that in an action, by the assignees, to recover such property, the burden of proof lies with the defendant to show his good faith, and that the transaction was in the usual course of dealing. 1 Rev. de Jur., p. 40, Webster vs. Footner. Q. B. Montreal; Gale, J., and a Jury. 40 BANK. II M *' i fjli'i i i Execution op Judgment. Hold, That tlio nssiptnccw of ii biinkrupt cannot stop the execution of a jiidpf- mcnt in tho (/ourt of Queen's Bench by alle<;in;^ the issuinfi; of a conlnli^il. vs. Star. K. B. Q. 1817. Held, That a note " promising to pay A £20 on account of B " is a good note, and enables A to recover on it Niwtoii\B. Allen. K. B. Q, 1817. Held, 1. That a letter acknowledging tho receipt of money from plaintiff and promising to repay it on demand with inlorest, is not a promissory note within the meaning of tho 12th Vict., c. 22, sect. 31. 2. That in an action for tho recovery of tho money so loaned, and in which the letter is referred to as a paper writing sows sclgn priu6, given as an acknowledg- ment of such loan, tho prescription of five years, applicable to promissory notes, cannot bo invoked. 3. Nor can tho limitation of six years, under tho 10th and 11th Vict., c. 11, Beet. 1, be invoked, tho loan being made by a non-trader. G Jurist, p. 319, WhUhnw vs. Gilmour et al. S. C. Montreal ; Monk, J. Not Negotiable. Where defendant indorsed a note not negotiable made in his favor, to plaintiff, and plaintiff indorsed it to S who sued the defendant, and the action was dis- missed, and afterwards sued the defendant as his immediate indorser. Held, That the action of S. was rightly dismissed, inasmuch as the second indorser of a note not negotiable cannot, by his indorsement, give his indorsee an action against the first indorser, but that tho plaintiff, as second indorser could sue the defendant as first indorser on tho indorsement made by the latter to the former. 9 L. C. Rep., p. 191, Jones vs. Wldtly. S. C. Quebec ; Meredith, J. Held, That a paper writing, undertaking to pay A B or hearer, a certain sum of money, one half in cash, and one half in grain, is not a promissory note and therefore is not negotiable. 1 Jurist, p. 277. Gillin, vs. Cutler. S. 0. Montreal; Smith, Mondelet, Chabot, J. Held, That in a declaration on note the words " for value received " need not be used, the fact of such value being given, being matter of proof. 4 Jurist, p. 308. Whitney vs. Burke. S. C. Montreal ; Mondelet, J. With a cross. Held, That a promissory note payable to order, cannot be assigned by an indorsement with a mark although made in the presence of two witnesses. Lagewx vs. Cusault. K. B. Q. 1813. Held, That a note executed by the maker's mark, if indorsed, gives no action to the indorsee against the maker, but the indorser is answerable for money had and received. Jonet vs. Hart. K. B. Q. 1819. nil.LS AND NOTES. 48 Ilt'ltl. Tliiitft notowith the mark only nf tlio niiikiTf^ivo.x no action (if indorsed) to tilt! indor^oi! ai^iiinst tliu niakor, hut tlut in(h)rsi>r is iiahio upon his indornc- niciit to tlio indorsee. 2 Uev. do Jur., p. 5H, Joius vs. JIurt. K. U. Quehoc ; ISl!). Held, That an indorsement fiijjned with a cross, in the presence of two wit- nosHos, gives u right of action to the hearer against the maker and indorser. 1 Rev. de Jur., p 220, iVoud vh. Ch'itcuKnrt. Q. IJ. Quehec; 2!»th Jan, 1840. Held, That u promissory note, sigiu'd with a cro.ss, in presence of one witness, is a valid note. 10 L. C. Hop., p. 31)0, Vullins vs. bnuUhnw, Circuit Ut. Quohec; Stuart, Aast. J. Hold, That an action lies against the indorser of a note payable to order and indorsed with his cro.ss. Thnrhir vs. Deaivc. Circuit Ct. Ht. llyacintho. McCord, J. 1854. (>Vmd. Uep., p. 103. Held, Th!it un action can bo maintained against the widow of the maker of a note signed with a cro.ss payable to M. & Co., or order, and by them indorsed in blank to the plaintiff, the maker, indorser, and plaintiff being described us traders. 6 L. C. Rep., p. 479, Anderson vs. Park. S. C. Montreal ; 3Ionk, Pelletier, Rcrthelot, Asst. J. I. 0. u. Held, That whore a tiers saisi made a declaration that he had paid the defendant a certain sum for horses sold by him to the tiers saisi and ha ' given a , " I. 0. U. " for the balance, the tiers snisi will be condemned to pay ordy after getting security for the delivery oi the acknowledgment or being held harmless from it. Jurist, p. 307, Beaudry vs. Lajiamme, Uavis, T. S. S. C. Mon- treal ; Badgley, J. En Buevet. Held, That a note passed en brevet before notaries, is prescribed by the lapse of live years. 6 Jurist, p. 257, Crevier vs. Sauriolc dit Samsouci. Circuit Ot. Moritreal ; Smith, J. Held, That a promissory note en brevet, made before notaries, payable to a person or his order, is negotiable by indorsement in the ordinary way. 3 Jurist, p. 55, Motrin vs. Legault dit Deslanriers. Circuit Ct. Montreal ; Smith, J. Note en brevet when prescribed. See " Prescription." Aval. Held, That in contracts of a commercial nature, an aval may be legally made by signature sous croix. 1 L. C. Rep., p. 219, Paterson et al. vs. Pain, S. C. Quebec; Bowen, C. J., Meredith, J. Held, 1. In an action against L, whose signature was on the back of a note signed by B, and payable to plaintiff or bearer, that L was not entitled to notice of protest. 2. That the donneur d'aval is not entitled to notice of protest, but is liable solidairement with the principal debtor. I, . i 44 BILLS AND NOTES. 3. That a motion for a new trial cannot be received after the first four days of the term next foUowinj^ the verdict of a jury. 4. SenMc. That it is tlie province of a jury to determine whether the defen- dant's sijj;aaturc indorsed on a note, was intended as an ordinary indorsation, or whether it was pour aval 9 L. C. Rep., p. 353, Merritt V8. Lynch. S. C. 3Ion- treal ; Berthelot, J. Same case, 3 Jurist, p. 27G. Held, Tliat an indorser pniir aval is liable without presentation of the note. Parimiu vs. Ouellit ; McCord, J., Cond. Ktp., p. 57, Accommodation. Held, 1. That the order of indorsements on a note is merely a presumption of the undertakings of the indorsors towards each other, which may be destroyed by proof of a contrary undcrstandiuij; or iij:;reement. 2. That in the case submitted, the indorsement of the appellant was made on the express condition it sliould be preceded by that of the respondent, who was notified of such condition by the maker, who was to be considered as the agent of the indorser, and that, tiicrcforc, no action lay iigainst the appellant by the respondent, whose indorsement was put below that of the appellant, in violation of tlie condition. 11 L C. Rep., p 2(j9, An/, App., Sculfhorpe, liesp. In Appeal; Lafontaine, C. J., Aylwin, Duval, Meredith, Mondolet, J. Acceptance. Held, That a verbal acceptance of an inland bill of exchange is valid, and binds the acceptor. Lagurnx vs. Everett. K. B. Q. 1817. Held, That an acceptance on sight, of a bill of exchange, admits the signature of the drawer. Jones vs. Gomh'e. K. B. Q. 1820. Held, That in an action upon an acceptance of an order to pay money, made in writing, the acceptance must be produced in evidence. Esson vs. Everett. K. B. Q. 1820. Held, That a verbal acceptance, by a secretary of a corporation, of a draft of the defendant, and a like acceptance by the accountant of another such draft, is Bufficient to prevent the attachnient, hyxainie arret after judgment, of the money covered by such drafts. 2 Jurist, p. 203, lii/ in vs. Robinsun and Cluimplain R. R. Co., T S. S. C. Montreal; Mondelet,J. Held, In Appeal. That such acceptances were unauthorized and void, and that the moneys covered by such drafts were legally attached. Ri/an, App., The Montreal ami Chmnplaui R. R. Co., Resp., 4 Jurist, p. 38. Lafontaine, U. J., Duval, Mer. dith, Guy, J. By Aoent. Held, That where a note is indorsed by an agent, his agency must be proved ; aa such case docs not come within the provisions of the 20th Vict., c. 44, sect, 87. 9 L. C. Rep., p. 299, Joseph et al. \a. Ilutton. Circuit Ct , Quebec; Chabot, J. Held, 1. That a promissory note payable to the order of an Insurance Co., and given in payment of a premium of insurance is negotiable, and a memoran- BILLS AND NOTES. 45 dum at the foot of the note indicuting the consideration, does not limit its nego- tiability. . 2. That the indorsement of such a note by tlic secretary of the company, in that capacity, is sufficient to pass tl^e note to tiie phiintiifs, an implied authority in liim to do so having been proved by the ordinary ccmrse of tlie company's business, and that tlie directors had effected the arrantcnce of the notes until notified of their being protested. He also pleaded a de/eusc en /ait. At the bottom of the exception there was an affidavit of the defendant that all the facts articulated therein were well founded. After evidence adduced, it was argued on behalf of the plaintiff's,that under the 87th sect, of the 20th Viet., c. 44, the plaintiff was entitled to judgment, the affidavit not being in the form required by the statute ; upon this, a motion wa made by the defendant, to discharge the cause from dilib(ri, and to have it truck from the roll , an i to be fe.-mitted to file an affidavit which was pro- duced with the motion in support of his pleas. ' #■ 50 DILL? AND NOTKP. -I ITfltl, That tliu motiiiii wiis inn(]inissal)lo; that the rit'ht of tho plaintiff to Ikivc the Hif^'nnturoH takfii as ^oniiino and to ju(l-,'inont, was a dm!f nrqiiig, and ought not to bo intcrferoil with by tho court, tho goniiinono.«s of tho siirnaturo,* not having boon logally j)ut in isMio. 10 L. C. Kup., p. 442, Don- vh. Brnmne. >S. C, Montreal ; Smith, J. Hold, in Appeal, 1, That tho affidavit was suffioient. '2. That tho indorsoinont of tho appollant'.s signature was forged. It L. C. Kop., p. 27.'], Ihnwnr, App., Mwr, Ui-sp. I.afontaino, C. J., Duval, Meredith. Mundelot, J. ; Aylwin, J., dissenting. Retirkment heforr dt'e. Hold, That the rotirenient of note by u prior indorsor before it became due. does not disehargo a subso(iaont indorsor as against a holder for value, if there was no real payment, but amen! exchange of soourities,with the express rotontion of the liability of the parties to tiie note. 5 Jurist, p. 127, Bull vs. CurUHer tt al. 8. C. Montreal; Smith, J. Indorsement for less than Note. Held, That in an action, by the indorsee against the indorsor, upon a note in- dorsed for a sum less than that made payable by the note, the plaintiff cannot recover. Stuart's Rep., p. 450, MrLeod vs. Meek. K. B. Q. 1831. Renewal. In an action on note, the defendant pleaded that he had sent a renewal note to the plaintiffs, who had not returned it. The plaintiffs answered, tliat they had refused to accept it as a renewal : Held, That the defendant was bound, on such refusal, to send and get back the note, and that tho fact of the plaintiffs not returning it, could not be construed into an agreement to renew. 1 Jurist, p. 285, Li/muu et oL vs. Chiimard. S. C. Montreal; Day, Smith, Mondelet, J. Oi' Married Women. Held, That a note by a married woman is void. Guai/va. Peltier. K. B. Q. 1812. Held, That a married woman's note is an absolute nullity as regards her, but the indorser may be liable to the indorsee. Lellanc vs. liollin et vx. McCord, (J. S.) J. Cond. Rep., p. 50. Held, That a promissory note, signed by a wife, siparee des hiens from her hus- band is null, if she has not been authorized by him, although the goods for which the note was given, were purchased by her. 1 .Jurist, p. 171, Badeau vs. Brault, Leonard etux. S. G. Montreal; Day, Smith, Chabot, J. Held, Tliat a promissory note, signed by a woman, siparie des liiens is a valid note altliough not authorized by her husband. 1 Jurist, p. 172, Rivet tt ah vs. et Hx. S. C. Montreal ; Rolland, Day, Smith, J. BILLS AND NOTES. r.7 IIoM, Tlint n noto of n woiunii H^/mrei !, nx mnflc jointly und xvciiilly witli hiT liusbuiid, hut in rt'iility iis lii.s suroty, is null as ivhiu'cIm Iut, uiulor •he nil Vict., c, .'{0. ') .Furist, |). 47, S/utircr vh. Guiijkii'u it «.r. 8. C MiintronI ; Bml^^loy, J. Hold, That a note of a mairu'il woman, sipartvilpH hlrun, without tho autliority of lior hnsltaiid is valid, nhe bein<;' at the time a moirliKiidi /nilifi'ifin . fFudi^nictit ponlirnit! 1. 1- L. C). \U'[> , Ml, /iKHiliun, A\)\)., JIusnoii, Won]). InAjilieal, Lafontaino C. J., Aylwin, Duval, Mcroilith, Minidolct, .1. Field, That a promissory note of a n)arriod woni' n, soparated as to property from her husband, for provisions and noc(WHarios used in the family, in I'avor df licr husband and by him indorsed, is valid witlnmt proof of exjtrt'ss authority to litr to sign the same. 12 L. (!. Kep., p. IW^, ClutUt vs. /)ii/>/<:isis. S. C. Mon- treal : IJadgley, J. See this case, (> Jurist, p. vSt. RXEOl'TION CASA. Hold, That a ca-.si/ may be liad on a foreign bill protested, linwir vr , Skii urr. K. B. Q. 1809. So on an inland bill of e.xchunge. (temi/m vs. Mci'arthi/, K. B. Q. 1811. Held, That a CT/-.sa. does not He on a note to order, given by an officer in tin urniy, for value received. Ilintld vs. SIciniirr, K. B. Q, ISIO. WlFEN 1)i:e. Held, That where a note is assigned after the time appointed for payinent.an- •here is fraud in the transaction, the law, on slight grounds, will presume thi. , •lie indorsee had had knowledge of the fraud, if it appears that he omitted to satisfy himself as to the validity of the note. Hunt vs. Lti. K. B. Q. 181.3. Held, That an action lies on a note payable by instalments, as soon as the lirst day of payment is past ; but it lies only for the amount of the first instal- ment, each of them being considered as a separate debt. Clcarlhitc vs. ^forl■is, K. B. Q. 1820. Held, That a promissory note at four years' date, and having yet about two years to run, becomes immediately exigible by the insolvency of the defendant. 2 Jurist, p. G9. LnveU vs. Meihh, S. C. Montreal ; Day, Smith, Vanfelson, J. To Absentees. Held, That a note to one who is absent, and who (as it happens) is dead, is not void, and his executors may maintain an action upon it Grant ct ah vs. Wlhon, K. B. Q. 1814. Good Faith. The defendant gave a promissory note for £1 000, payable twelve months afler date to C. L. or order "as treasurer of the House of Industry, established in Montreal," for money lent, which note was indorsed over by C. L., whilst warden and treasurer, after it became due, to P., for a sum of money lost to him at billiards. P's agent delivered the note, indorsed in blank, to the defendant, who 1 I ^8 LILLS AN1> NOTES. gave him two notes of X500 ciich,whieh were transferred and sued upon by third parties. An aetion being brought against the defendant, the maker, to recover the £1000, and alleging that the defendant had fradulently obtained possession of tlic note : Held, That the defendant having acted in good faith without notice or know- ledge of want of arthority from the wardens of the House of Industry to C. L. to make the indorsement, or of any breach of trust or duty on his part, the note was discharged, and the action nmst be dismissed. 1 llov. de Jur., p. 27, Ferrie, App., The Wiinhns of the House of Jiulaslri/, Kcsp. In Appeal ; Sir James Stuart, C. J.. Bowcn, Panct, Bedard, Gairdner, and Mondelct, J. Bills and Notes, Interest. ii- tiun. " " Power of Agent to make. Sec Principal and Agent, Agent's Power. " " Transfer of nv a IJehtor en decunjltuir. See ExE- i^UTiON, Saisie-Arret. For Goods sold. Sec Action, Assumpsit " On Demand when due. Sec Bills and Notes. Judgment, Oct. 11, on a note payable '• in the month of October." Precoste, No. 72. Judgment dismissing action on note made to order, transferred after a know- ledge of a saisir arret. J'reruat^, No. lOG. Drawer of Icltrc r^en< until proof of diligence, by holder. Cons. Sup., No. 16. Cmitraintc for payment of bill of exchange. I'rcvosle, No. 20. Cons Sup. No. 20. Conditioiml note ordered to be paid in money. Cons. Sup., No. 41. BANK OASIIIER, PLAINTIFF. Can an action by a cashier of bank in his own nanae " as cashier of the Bank of G." be maintained? 2 llev. de Jur., p. 303. Ferric, App., Thompson, Rosp. In Appeal; July, 1838. BviLLEUR DE FoNDS. See Reoistbation, Baillcur de Fonds. BanalitI:. Sec Seigniorial Right.s, Banalite. Banc d'IIonneub. See do. Banc d'Honneur. Bill of Lading. See Ships and Shipping, Bill of Lading, see also • CARRIERS." Books of Account not Saisissahles. Sec Execution. Bridge Tolls. See Crown Mail. Brokbrh. See Principal and Agent, Broker. BuuBLE Act. Sec Ships and Shipping, Bottomry. CAPIAS. 59 CAPIAS. Akfidavit. Held, That a capi.iH ad rcsp. may be had pcndottc Jitr, upon the usual affidavit thiit the def'cudaut is about to leave the country. Cullis vs. Hunter. K. B. Q. 18K{. Held, That a capia.s n''il<- et itl. vs. Bmvn. S. C. Q. ; Bowen, C. J., Duval, Meredith, .). Held, That in an affidavit for cuitltm the grounds of belief that the defendant was about to leave the province, with intent to defraud ; namely that the defend- CAPIAS. 61 ant's vessel is Iniidod and ready for sea, and that the defendant intends sailing in her. and has told the defendant that he would not return to Canada, arc sutH- cicnt. 4 li. C. Rep., p. 157. Wlhnn vs. lititl. S.. C. Q.; Duval. Caron. J. Hold. That in an affidavit for rnjtlas it is necessary to state that the defen- dant is immediately about to leave the province n'ith an inhnl to dr/raud his ^ndifors in (jeiieral, or flu; phiintii/ ■ nrtiruhn: 4 L. C Hep., p. 1,')9, Wihon T-. A'///. S. C. Q. ; Wowon, C. J., buval, Meredith, J. Held. That an affidavit for nijiins, statinjx as the jrrounds of the fraudulent jnti-nt. that the defendant is a sea-farin;^ man about to leave the province with hi^ vessel, and may never return ; and that he has made no provision for the payment of the debt, is sufficient. 4 L. 0. Rep., p. 218. S. C. Q.; DuvaJ, Meredith, (Jaron, J. Held, 1. That a creditor for a sum under CIO may obtain a cc,s.sion of other debts and sue out a writ of rn/iiis ai^ainst the di^fendant, if the am(mnt in all oxoecds 'J 10 ey. 2. That signification of such cession before suit, is not necessary. :;. That an affidavit, stating as the grounds of fraudulent intent, that the ves.^. C. Q.; Bowen, C. J., Morin, Badgley, J. As to what allegations will be sufficient in an affidavit for cupiaSj see 5 L, C. Rep., ]). 422, '/ti'.siV/' vs. rdlcticr. S. C. Q. ; Stuart, J., Parkin, Asst. J. 1. Held that an affidavit for aipia.s is sufficient if it alleges (as the ground of deponent's l)elief that the defendant is about to leave the province) that defend- ant is a mariner, having no domicile in the province, and is about to sail with his ship. 2. That it is not necsssary to state that defendant has been asked to pay the debt and has refu.sed to do so. 3. An allegation " that without the benefit of a writ o{ cajnas the creditor will " lo.se his debt or sustain damage " is sufficient without the words ''will lose hia ♦ ■ G2 CAPIAS. •' remedy." G L. C. Rep., p. 15, Jlnmt vh. Mnlcnhci/. S. C. Q.; Stuart, J., Parkin, Asst. J. Held, That a capias ad respnndendnm may issue as well after as before judg- ment, against a debtor about to leave the province with intent to defraud his creditor.^. 3 L. C. Hep., p. 456, Gale\s. Alhn. S. €. Quebec; Bowen, C. J., Meredith, J. Held, That it was not necessary to make oath that the plaintiff, without the benefit of a writ of capias ad respundendum against the body of the defendant may bo deprived of his remedy. G L. C. Rep., p. 32, Tctti it ah vs. Peltier. S. C. Q.; Stuiirt, J., Parkin, Asst. J. So heiil also in Lelievre vs. Donelh/. 4 L. C. Rep., p. 247. S. 0. Quebec ; Bowen, C. J., Meredith, Morin, J. Held, That under the 12th Vict., c. 38, a writ of capias signed '' F. Mar- chand, Clerk of the Circuit Court," attested with the Seal of the Circuit Court, St. Johns, headed in the margin, "In the Superior Court," and returned into Superior Court, Montreal, is irregular. That sueh writ is not a writ in the Superior Court, as required by the Judicature Act. G L. C. Rep., p. 175, Hitch- cock vs. Meigs. S. C. 3Iontreal ; Day, Smith, Mondelet, J. Held, 1. That an affidavit for ctpins shows no legal indebtednes.s in alleging that the defendant is personally indebted to the plaintiff " in the sum of £150 cy. " for the amount of the penal sum or penalty stipulated and specified, in and by " his bond, made and executed at Stanbridge on the 29th April, 1843, contin- '• gent and conditioned the said penalty, upon him the said defendant, giving '" to the said deponent, one S. J. Allen, a good and sufficient warranted deed of '' two lots (described) to b'^ divided between them," notwithstanding the allegation of a division of tlio lots as agreed on, and a granting a deed of one of the lots to said Allen by the defendant, and the^refusal of the defendant, when called upon, to give the plaintiff a deed of the other lot. 2. That plaintiff's right is to sue to obtain a deed, and, in default thereof, the sum stipulated as damages. 6 L. 0. Rep., p. 478. Allen vs. Allen. S. C. Mon- treal ; Day, VantMson, Mondelet, J. Held, 1. That an affidavit for capias in which the creditor's name is " Joutras '' is good, although styled " Justras" in the writ and declaration. 2. That' an allegation in such affidavit, that the defendant is personally indebted to the plaintiff for work done by the plaintiff for the defendant, and for wages and salary earned by plaintiff in the service of the defendant, is good, although it is not stated that the work was done '' at the instance and request of the defendant." 7 L. C. Rep., p. 420, Joulias vs. DuhI.jk S. C. Q. ; Meredith, Morin, Badgley, J. Held, 1. That in an affidavit for capias, which .shows a personal cause of action, the allegation that the defendant is "personally indebted," is unnecessary. 2. That in sueh affidavit the allegation that the plaintiff " may lose his said debt, or sustain damage is sufficient,"' and is eciuivalent to the allegation •' that qe may be deprived of his remedy." 7 L. C. Rep., p. 425, Lumpsoa vs. Smith. S. C. Q. ; Meredith, Morin, Badgley, J. CAl'IAS. 68 Held, That the petition for cupi/is in this case could not bo dismissed on demurrer. 8 L. C Rep., p. 152, Foster rt a/, vs. Diirion rt al. S. C. Q.; Bowen, C J. Held, That the affidavit for"r(i/»i«r.ley, J. Held, That an affidavit for capias ml rcspouileiuluni which alleges " that the " defendant is about to leave the province, and that the belief of deponent that '• he is about to leave the province, with intent to defraud the plaintiff is founded, • itc.," isj insufficient under the 12th Vict., c. 42, .sect. 2, and that the affidavit must specifically allege that the defendant is about to leave the province, iritk intfut to drfraud, dx. 10 L. C. Kep., p. 204, L' Hoist vs. Bntti^. S. C. Q. ; Stuart, Asst. J. The plaintiff in an affidavit for mpioa ad rrsfionili'mhim gave as the grounds of his belief" that he was this day informed, by A. and B., that the defendant " has all his goods packed for a start from Canada, and that he will leave tliis " province to-morrow, and will not return again, and that he intends leaving with • the fraudulent intent aforesaid." On a petition by the defendant to be released from custody, the two parties A. and IJ. examined on his behalf, deposed in effect, that tiiey only said, that the defendant was going to leave for New York. In cross examination of the petitioners witnesses, the plaintiff went into proof (if other facts, tending to show the fraudulent intent. TTeld, 1. -That such proof may legally be made, and that the plaintiff is not re.'^tricted to the precise matters set up in his affidavit. 2. That, in the ca-^c submitted, although the affidavit was directly contradicted liy the two parties from whom the plaintiff declared he had received his informa- tion, yet there was sufficient of record to show that the defendant was about to leave tiie province witli fraudulent intent. 1 L. C. Kep., p. 240, lUnnkvnsve, k\)\i.. Shiirplrji,'R,c^\). In Appeal; Aylwiii, Duval, and Bruneau, J. ; Lafon- laiiic, C. J., Mondelet, J., dissenting. Same ca.se, G Jurist, p. 2St<. Held, That an affidavit for ccipian, which sets forth tlie essential allegations a» ie([uiied by the 12th Vict., c. 42, but in the di.'i CAl'IA,-. Held. Tliat a ntfuas will not bo quaslioil rlnit /"m-ir, and tho plaintifT is not bound to adduce other proof on a gen- eral denial, contaii.ed in the petition for release. 1, A defiMidant arrested is not entitled to his liberation, by reason that the real estate of which ho became (tdJHdinHdhr at a sum less than the hypothe(jues upon it was afterwards sold for a sum greater than the amount of such hypotheS. C. Montreal; Monk, J. Held That in the case of a cn/tlttK for deteriorations to real estate under the ■itatato, it is not sufficient that all the terms and expressions of the statute be found in the petition or motion for a rule, but they must be found also in the rule Itself. ') Jurist, p. 100, Vitriii vs. Cdd/c, a ml Mcdidniics ni vs. JfnsLlns. S. C. Montreal ; Badgley, J. Held, That an affidavit for a ciiplds may contain several different averments of debt inconsistent with one another, and is not void because one of them is insuffi- cient. 12 L. C. Hep., p. 115, Green vs. JJuffuId. S. C. Q. ; Taschereau, J, Held, That a C(i/nr, against the owners of a sea-going vessel, trading between (Jlasgow and Montreal, for the value of jewellery in a trunk placed in the hold of tho vessel, and not delivered at Montreal, the defendants pleaded, tliat the loss happened without any fault or privity on their part, but by reason of robltery, end)e/.zlenient, or .secreting thereof; th.at the plaintiff did not insert in the bill of lading, or in anyway declare in writing, to tho master of the vessel, the true nature and value of the articles. Held, On demurrer to the pica by the plaintiff, on the ground that she was a passenger, and entitled to carry such articles : That, as owncr.s of sea-going vessels and common carriers, the defendants were liable, and also on tho ground that the 50th clause of The MrrcliKnts Shipping Act o/1854 was not applicable to tiie luggage of passengers, that the plea could not bo rejected as bad in law. 12 L. C. lJep.,p. 321, McDoiic/uU vs. AUini ct nl. S. C. Montreal ; Badgley, J. Same case, (! Jurist, p. 233. NEflUGKNCE. Held, That a carrier by water is answerable for negligence. Bruneau vs Cormier. K. B. Q. ISIG. Held, That a carrier by water is answerable for negligence; if therefore he carelessly quits his ship, and she is lost during bis absence, he must bo answer- able for the cargo. Borne vs. Perrault et al, K. B. Q. 1821. Several packages of goods were shipped in London to a merchant at Quebec, where, upon the arrival of tho vessel, and after delivery of the packages, it was ascertained that some of the goods were missing from one of the packages, but notice of this was not given for .several months : Held, That the master was not responsible for the doQciency. Stuart's Hep., p. 509, Sivinhiirnc, App., Mcssuc etal, Resp.' In Appeal; April, 1834. CARRIER. 69 Hi'lJ, 1. That if nieicliuniliso, in .!,'n(i(l nnlor, is iiifnistoil to a carrior. nml arrive!* at its (K'stinutidii in a dania^til stati", where he holds it for the freight, he J8 liable for its value. 2. That if he pretends that fraud or eoneeahnent has been practised, the (iiiun i)f proof lies upon him. Stuart'n I'.ep., p. oHK, /furt, App., Jovrit vt ah, I'.osp. Til Appeal; Nov., iSiJl. Held, That the owners of river craft are responsible for losses occasioned by their own want of e ire, attention or experience, or that of their fw-rvants. Stuart's Kep. p. 5(»1, Note, Jionie vh. I'lmiulf cf BMVEHY. Held, That where three chains attached togetlicr were shipped at Liverpool for delivery at Quebec, they compose one whole, and delivery will not be held perfect until all three are delivered ; and an action was maintained against the master, part of the chain having been lost in delivering it into the plaintiff's batteau , 8 L. C. Kep., p. Ill, Mc Master, App., \Viiiii.''scJ. Jponsible " for damaj^cs occasioned by delays '• from storms, uecidcnts, or unavoidable causes, or from damat,'es from tire, beat," &c., and that a similar notilication, and printed conditions were printed on tho back of the company's advice notes, to consij^ncos, of the arrival of floods, and that the plaintiff" had been seen on a previous occasion reading such conditions and notilieatiuns, does not constitute an agreement between plaintitf and defend- ant that the goods in ijuestion were to be carried on these terms, particularly in the face of a simple unconditional receipt, as given in this instance, for tlic goods. 4. That a common carrier cannot be exempted from liability, even wlierc suolr an agreement is proved, if he be guilty of negligence. 3 Jurist, p. 2»)!>, Huston vs, Grand Trunk linilwai/ Co. S. C. Montreal ; Smith, J. Hold, That a clause in a bill of lading, tliat tho carrier shall not bo " liable " for leakage, breakage, and rust," does not relievo such carrier from liability arising from negligence. 4 Jurist, p. 40, .'[arris et at. vs. Edmonstonc et al. C. C. 3Iontroal ; Berthelot, J. Hold, 1. That in case of damage to cargo, the carrier is bound to prove that tho cause of damage fulls within the exceptions of the bills of lading. 2. That salt ought not to bo carried on deck between Quebec and Montreal, unless such mode of carriage is expressly provided for by tho bill of lading. 4 Jurist, p. 371, Guhertj vs. Torrance elal. and contra, S. C. Montreal; Badg- ley, J. Held, in Appeal, That a carrier is liable in damages to a shipper for delay in conveying the cargo (grain and potatoes) by reason whereof the cargo was injured. Damage allowed, £275. Orvis vs. VoUgnif. S. C. Montreal ; Cond. Rep., p. 35. Held, That where goods placed in a station of a railway company to be for- warded, wore destroyed by fire, together with the station, before, from the state of the snow, they could be so forwarded, the company is liable for the loss, notwith- OAlllUKR. 71 (jtnmliiiK p»'>li<' nntiws tbnt tlicy would not ho rc!y delays from Htoriiis, ucfidiMifs, or uiiiiV(>idal)lo causoH, oi fiom dain- " nm's from fire, limit," ito., mid tliat t\w firo liavinj; orii;iiiati'd from " wastt! " kopt in tho station, which wan huiU of wood, there waH noj;li;:otico and careless- nt'SH on the part of the company, and not a (ire from niii/nrfuit ov j)>r>i< mnjenre. C Jurist, p. 17m, (Irtiml Trmih ('itm/xim/, App.. vs. Mumitn'in rl i> service of a writ of ntnxie arrH, mude a dei'luration elaimiiiL' a priviliu:c tni the proceeds of goods l)eloiij^ing to the defendant, for a bahuice of freitjht due, aeconliiifJT to a printed condition on ecrtain receipt notes used by the company. The j^'oods liavini? been soKl by consent of the defendant, after his insolvency, for the benetit of whom it mij^ht concern : Held. 1 . That proof of the defendant havini» received, from the company, many such receipt notes, containinii: the condition refiirnMl to. and flint '^nch notes had been u.xed by the company, fi>r years, and had not been objected to by the defend- ant, did not constitute an a^^reement that the company should have such general lien. 2. T h,il the proccei'< of the sale of such jj;oods were properly attached in the couipany's hands, jind were available to the creditors of tiie defendant. ',>/'• vs. Casink, and (he (iiiiml TiKitL- liiuliiutii V>>iu/iii>i_i/, r. S. S. 0. Montreal; iSmitli. J. Notice. Held, 1. That a common carrier can limit his liability by conditions inserted in a bill of lading. 2. That where goods arc rccei*. <;d on board^the carrier's lighter at ^lontreal, to be conveyed to England, by his steamer from Quebec, and only a jiart of the goods were put on board the .-iteamer, the carrier is not liable lor the delay where the bill of lading contained a clause, that if, from any cause, the goods did not go forward by the first steamer, they sliould be forwarded by the next steamer of the same line. 5 Jurist, p. 11)0, Torrauce el al. vs. AUan el ah S. C. Montreal; Bcrthelot, J. Transiiii'.ment hy. Held, That a carrier w'.io undertakes to convey goods from Quebec to Chicago, with power to tranship at Kingston, complies with the usage of the port by tran- shipping at Kingston into a sailing vessel from a steamer, and is therefore not responsible for the loss of such goods, occasioned by tempestuous weather in which such .sailing craft was wrecked, 8 L. C. Hep., p. lUS. n(f//t/i vs, I/eiitlcrxon ital. S, C, Q. ; Mereduh,.!. Cahrikus. ,SVc Ships and Siili'PiNa. CI'HITIORAIII. .ll'RKSDICTION. Held, That the Superior Court, Montreal, lias iio jurisdiction to grant a writ of ccrtliifiifl to liriiig up a conviction had before a justice of the peace in the dis- trict of Three liivers. 3 L. C. Hep., p. 100, A'.r />ai-(c Ciimmiiij. S. C. Mon- treal ; Day, Mondelet, J. CERTIORAUI. 78 Held, That the powers i-xcrcisod by coiiiiuissutncrs under the 2iul ^'ict., c. 29, sect. 4, as to election of parishes, are not judicial powers, subject to revision by cirtiorari. Si'mhlr, Tliat the majority of interested parties mentioned in the said ordi- nance nuj^lit to be understood of tlie inhabitants of the new parish or division. 3 L. C. Uep., p. 123, K.I' pit, -tc Lramn. S. C. Q. ; Duval, Meredith, .1. Held, That mere irregularities in the proceedings of the Superior Court arc not sufficient to justify the granting of a writ of certiorari; there must be the proof that actual injustice has been done. 3 L. ('. Hep., p. 41)8, L'x jmrle d'ltuthiir if al. S. C. Montr'^al ; Day, Vanfelson, Mondelet, J. Held, That a justice of the peace has no authority to issue a writ uf snisie «/T(V after judgment. Ex /nirfc Corponitinno/ Sf. -I'liiUijij)''. »S. C. Montreal; Day, Smith, liadgley, J. Held, That the llceorderoi' Montreal, being exempted by statute from making .iny reoord of his proceedings, the Superior Court has no means of testing a ques- tion of jurisdiction which dejwnds for its .solution upon the precise evidence addue<'d. 1 Juri.-*, p. 102, Kc parte Gould. S. C. 3Iontreal ; Day, Mondelet, Chabot, J. Held. That where a ca.se is heard before two justices of the peace and taken f?( tli'lilu'r^, it is incompetent for one justice to render judgment alone. 2 Jurist, p. 1*7, K.r piirfi JJradi'ur. .S.C.Montreal; Smith, J. Held, That a conviction will be ((uashed if it ai)pears that the otVenec was for a fi'lony, and that the defendant was not put on his defeniu' or allowed to cross examine the witnesses. Ko. 8784, Ex parte Limhrnj. S. C. Montreal; Cond. Kep., p. 84. Held, That under the 14th and lath Vict., c. 97, a conviction by a magis- trate awarding imprisonment for the penalty and also for damages and costs, will be sustained. No. 83, Ex jnuic Jloyuin. S. C. Montreal; Cond. Hep., p. 84. Inspectoiu. Held, That insiwctors of fences and ditches will not be relieved fnnn the cost* of setting aside by ecrtiorari a judgment of the justices of the peace, homologa- ting, on the petition of such inspectors, a proeh verbal, relating ton water course, notwithstanding the insp. etors' tender and offer that the applicant shall not be troubled in future bj' reason of such ^>/<(.('.«i rrrdal. ('» L. C. Rep., p. 112, Ex parte Daijmais, S. C. Montreal; Day, Smith, Mondelet, J. Writ — IlETniN. Held, That on certiorari, a return of affidavit and warrant only is insufficient. Hex vs. Dcsgagni. K. B. Q. 1819. Held, That delegates named by several Inunicipalities to determine upon the opening of a road in which several corporations are interested under the 8tli Viet., e. 40, sect. 44-45, may make a return to a writ of certiorari by their principal officer, either mayor or president, and that it is not necessaiy, a p>iiie iJe nnlliti that the return should be under the seal of sucli officer. 2 Rev. de Jur., p. 46. The Queen ex relotiou: Talhut. S. C.Q. I f 74 CEIITIORARI. IIclil, That a writ of rcrtiornri nllowcil before the expiration of six iiionthn from the day of tlie conviction, but not sued out till after the expiry of the six months, will ho nuished. llx vs. Cltlllas. K. B. Q. 1819. Held, That the writof cer/i/^nm'iHsuinfi; under the i)rovisionsof the 12th Vict., c. 41, must be addre.'^sed to the convicting,' maf;i.strate,undnot to the bailiff sending the writ ; and if addressed to a bailiff it will be set aside. 1 L. C. Hop., p. 320, Tfic Qiiioi vs. Jiiirhcnu. S. 0. Q. ; Duval, Meredith, J. Held, That a magistrate has no right to refuse to make a return to a writ of Ctrl ion in', because the fees due in such cas(! have not been paid ; but a rule nixi for attachment will not be issued de /ihnn without previous notice to the magis- trate. :} L. ('. Hep., p. «iO, Kr parte Durkn. S. C. Q. ; Bowon, C. J., Duval, Meredith, J. Held. That a writ oi' itrtiiinin' will be quashed, a ' opy only of the writ having been strvid on the magistrate and his nturn nnide thereon. G L. C. Rep., p. 480, h'.i- fill lie Ln/iiii/iti. y. C. Montreal; Day, Smith, Momlelet, .J. Held, That a motion to compel a magistrate to return the original papers under a writ of ri rtiontr! will be granteil, but withinit costs against the magis- trato. 7 Ji. ('. l!ep,, p. •^2^, Kx jmrtr Jkiiurs. S. C. Q.; iJowen, 0. J., JJadgley. Caron, J. Such a motion granted with (if)>[< a: liii^t a magistrate. 7 L. C. Rep,, p. 420, KrjHirfr Fnrirr. S. V. Q. ; Meredith, Morin, Hadgley, J. Licenses. Hold. That a conviction under the 1 Uh and l."ith Vict., c. 100, for retailing spirituous licjuors, and not alleging such sale to have been made '' without licen.se," discloses no offence and cannot be sustained. '.\ L. C. Rep., p. 93, h'.i- jHirti Wniidliiiiist : K.i- jnolc JIi'ijuc. S. ('. Montreal ; Day, Smith, Monde- let, J. Hehl, That an information charging several offences against a penal statute in the disjunctive is bad, and the defect will not be cured by the confesiiioa of defendant. 2. That the conviction must bo of the offence charged in the infinmation and not of a different offence, ur of njovcral offences in the conjunctive, charged in the disjiinrtin: 3. A conviction adjudging the defewdant guilty of the several offences therein enumerated, and condemning him " i'or his said otfences " to but one penalty, in bad. 3 jj. C Rep., p. 9-1, Kx jmiii J/wjitc ; Ex paiti' Mointtcdit Ikllrhumcur. S. C. Montreal. Held. Thai a revenue inspector, suing in the Queen's nime under the 1-tth and lath Vict,, c. 100, for penalties, is not liable for costs. 3 L. C. Rep., p. 287, Ex paid; ll'iijucand Murnij. S. (J. 31ontroal; Day, Smith, Mondelel, J. Parisiieh, Erection of. Hold, That an ecclesiastical decree of the Archbishop of Quebec for the oroo- tion of a parish, is not a civil proceeding, subject to revision by nrtuirari, so CEUTIOKAUI, 75 loii"^ a.'- no proceodiiii^'s liavc been taken for obtainini:: a ratilication of such decree by tli(' civil authorities. 2 L. C. Hep., p. 2'J2., A'.e purte (riini/. S. C. Q.; Bowiii, C. J., Duval, J. PUOCKDENDO. Ili'jil. That the defendant cannot, by motion, compel a petitioner for ccrtinrnri to pnx'ced upon sucii writ, but in such case must proceed by means of a prucc- dnulo. '1 \i. C. Hop.. i>. :J02, AV iHirh- Morimt. S. C. Q. ; Bowen, C. J., Ouviil. .Mrredith. J. Ht'M. That where a petitioner allows more than six months to clap.se before adopting; some proccedint? to set aside the condemnation , he may bo declared di'clii' (if his rii^ht to do so, on a motion to that et!'ect t)y the plaintitf in the court iji'low. '1 Jurist, p. li^S, Ij.i- itiirti'. Ijitilionilc. S. C. 3Iontreal; Day, Smith, Mdndeiit, .1. 8o in Krjnirte /'n/ontuinf, - Jurist, p. 2((-. S. C Montreal; ."^iiiitli, ■). Held, That such motion mii^ht bo made by tiu; commis.sioners of the court ijolow. 2. Jurist, p. IS'J, AV /mrff Luredii. S. C Montreal; Smith, J. IL'ld, That conviction will lie ijuashed if it appears that the oIltMice was for a li'lony. and that the defendant wa,s not put on his defence, or oth(;rwise to cros.s- o.K;iniine the witncsHos. No. 87K4, AV jmite Laitilrj. S. C iMontreal ; Cond. Kip., p. :i. Held, That under the l-lth and 15th Vict., c. 95. a conviction by a magistrate awaidinu' impri.'^onment, and also for damaiivs and co.sts, will be sustained. No. S;j. /-■'■ inirtv M((Jiiiii. S. C. Montreal ; Cond. Rep., p. Hi. C(».M.Mis,sio\ERs' Court. Held, Thai wlierc a juilginent of a Commissioners' Court is bad in form, the Superior Court will not j^rant a writ of ccftinniri, unless it appears there has been csecs.s of jurisdiction. .'J L. C. Rep., p. Ill, Ex parte (iilxi alt. S. C. Mon- treal; Day, Mondelet, J. Hold, That clerks of Cou)mi.ssioners' Courts have no authority, under the 14th and 15th Vict,, c. 18, to receive the necessary affidavit, and issue writs of attach- ment before jud,!j;ment. 4 L. C. Rep., p. 31l», Ks parte Carpenter. S. C. Mon- treal; Day, Smith, i^Iondelet, J. Same Case, Cond. Rep., p. liG. Held, That there is no exception of jurisdiction in a Commissioners' Court, for grantinir a delny of cijj;ht days to plead, althouj^h the service of the writ was not personal. 6 L. C. Rep., p. 476, Ex parte Guodimu 8. C. Montreal ; Smith, Mondelet, J. Held, That (•(77)"(//(f;i' will lie from a judirment of a Commissioners' Court, on the ground that the action wivs brougiit by i party styling himself president of a committee to collect the salary of the llev. J. Desnoyers, curate, &c., and to receive a tax for the support of such mi-ssionury. t) L. C. Rep., p. 476, Ex parte Sallri/. S. C. Montreal; Smith, Mondelet, J. Held, That a judgment in a Commi,s.sioners' Court will be qua.shcd, tiie action praying fjr a oondcmuutioa fur £6 5s., or for au sie-'ount of the defeudant'a 76 CERTIORARI. pestion aH tutor. L. C. Rep., p. 484, Ex parte Dcmontignij. S. C. Montreal, Day, Smith, B!icl<,'Icy, J. Huld, That Coiniiiissioncrs' Courts havo no jurisdiction in cases of dainaires • and a judf^nicnt awarding damages was quashed on certiorari. Jjt(/1(1, Tluit iiiulor the 12th Vict., c. 55, .sect. :{, to imnisli .Horvnnts for dcscr- n 1 !i iu.>*tico of the peace lius no jurisiliction except in cnses where thorc is a tTi't'ract. 5 L. C. Rep., p. i;)5, Kx i>'U-l<- R >sr. S. C. Montreal; Day, Van- fcl.MMi, Moiidelet, J. Malicious iN.nuv. Held 1. That a summons for malicious injury lo property, under the 4th and 5th Vict., c. 2(5, must be upon complaint under oath. •> Tliat a conviction statinu; tliat the (>ffenee complained of was committed •■' ,l./,ins environ huit jours," is void lor want of certainty. ;{ L. C. Rep., p. 49»i, /;.t i»uie llooh. S. C. Montreal ; Day, Vanfelson, Mondelet, J. ;\ss.\rLT. Hold That a conviction fp., r. lO", Ex, parte Kovhclcan ; E.r p'ut, Elx.iilnir/. S. C. Montreal ; Day, Smith, Mondolct, J. llelil That a procix verlm/ for the rcp:iir of a front road or a miifr is not ,. ,,niro(l by the 3Gth Geo. 3, c. 9, and a jud-ment of the Quarter Sessions reject- hvj an application to homolo..,'atc a /)roct's vprlxil of this dtiscription, was hold, on tc,(!"i-nn, to be correct. Rex vs. (.'nnnf \'oi/rr. K. li. il 1819. Held, Tliat the Court of Quarter Sessions has a ri-ht to reject a prorex .,,/»// for u road if necessary to do so ; the sole question i.-, wh(!thcr it deems the t'nurt has exceeded its autiiority or not. R>x vs. Cnrou r> condemned to costs on the conviction beiiij .|uashed. E-- p'lrta Saronnejiu. S. 0. Montreal, Cond. Ren., p. 79. I'l.ACE OK OkfeNCE. Hold, That a conviction will bei|uashed if the summons states noplace where the otT'mce was committed, alth<-uuh the i)laee appcr.r on the face of th.' convic- tion, t) L. C. Rep., p. 4>il>, Er p'irti: Li'o,iiu-s the term of the assignment provide otherwise. 12 L. C. Rep., p. 4H5', Giruux vs. (lanthi r m UlUUT.s OK CkBSIONNAIRK. IIclil, I. Tliiit tlu! iissii,'ii('(> ot'a , /iirfhdot, App., (iiii/ it ((/., llesp. In Appeal ; l^afontaino, C. J., Aylwin, Duval, Caron, .1. Same case, 2 Jurist, p. liOl). Qiicn/. Will ther the delay f;ivcu by a ctilmif to a debtor by an artt' subsc- .(Uent to the date of the tUre originuiri' but belbre the transport, can bo pleaded liy the debtor to an action by the ixMiuiinairc .' 2 Ilev. de Jur., p. 177, Jjoiiylois vs. \'nnt. (I V>. Q. 1^^17. llESTniCTION OK. Ifeld, 1. That when an assij^nment to trustees for the benefit of the assif;nor's creditors, is .subseijuently resiliated by the payment of his debts, the as.-t of the two nrtis. 1 Jurist, p. i.")l, MdihhjIuui vs. Ben- ninij, S. C.Montreal; Smith, Mondelet, Chabot, J. Ck,«sion nv Ci'RATon. ^S"*'*' Cirator. Ceo.VNT and CKSSIONN.VIRE, Collocation of Sir JlIiOMENT. Slu.MKlCATlON. Allegation of an aifidavit for Capias. Sec Capias. Cession. See Executor, Saisie Arret. nn'ucii. CAIISK OF ACTION. Sfe Pl.KADlNd, CiiinpcnsiitioM. « " J*jxcu{iti()ii Deeliniitoire. 81 CAUTION. Srr Appeal, Bond. " St;ilKTV. " Caition .IrRAToinK. « llrSHANit AM) WlKK. *' lilAIIII.ITY ¥(\H ('(tsTS. " Costs on I'rocoi'diiij,'^ ii^'uin.«l Surety. CKIITIFICATK OF UANKIIUPTCY. Sec Bankruptcy CKUTiKirATK. CllOSK J I JUKE. See Jf IHiMKNT, lies judicata. C[iijj>ki-:n. CrsTODV OK. Sit IIismAND AND WlKE. Ciiii-u Wjtnesh.' ^Vt' CiUMiNAi- JiAW, iMurdcr. ClIUllCII. AsSKSvS.MKNT KOll BtllLDrNO. Held, That u dofcndaiit who lias bocDino ii I'roti'staut, cannot bo assessed for tliccdiixlruction ofa Konian Catholic church. Syndl<:Hdc Luvhinc vs. Ldjinmme. V. C. Moutroal; Monk, .). Held, 1. 'J'hat a person born of Uonian Catholic parents cannot escape from cinitributiiiu to the erection of a llonian Catholic chur Jurist, p. 27)8, Si/ndies of Lackinc vs. Fallon. C. C. Montreal; Monk, J. Fahiuqi:k — Action. Held, That a MargullUer en exf rcine muwiot maintain an action for the Fabri- qm soh^ly in his own nume. Chouinurd vs. Furtin. K. B. Q. 181!). Held, That die lloman Catholic Bishop of Quebec has no authority to com- pel the MftryuillUrs of a jmrish to account. He can retjuire (niinisterially)a stato- nieut of their proceediiijis for his information, as to the manner in which they have expended the money of the parish ; but it belongs to the secular jMiwer exclusively to compel judicially a ndditionde comptc in an action by the lEuvre et Fahrujue of the parish tor tliat purpose. Fabrhiuc of St. Jean vs. Chouinard. K. B. Q. ' 1 i 82 cnrnrn. Held, Tliat an iicfidii ni rnm>ihiinlv c.irinot lio fiippoHcd ji^imst {\\c Vulrui'it for tlie (liMtui'haticf ot'ii iMtri.sluoiK'r, in tlic- ]Hlsso^ri(|uc. Action disnii^Mcd U-low (VjillicrcN do St. Ural. dixHcntinir) ("oniirnud in Appeal; Stuart, C J., D. Mondflcf, riairdner, J.; Hiiwi'u. I'. nut, Ucdard, dissenting', U llev. do Jur., p- 127, C'o»»/t' vs Curf, ct MiinjiiHlurH nn pronimir lim'ntr, Mar- " gniUiir rn c/ntryi ," will ho (|ua.Hhed on c< rtioniri, the lepil name oi' the corpo- ration not having; \iwn used, hut eostn will not he given, there iH'iii}; no plaintift' in the eau.>y the (iiicieiiis Munjuilliers isille{fal, and the pro- cureur .so appointed ordered to abstain from actinji; under such procuration. I L. C- Itep., p. 522, TiiUlc/er vs. HdaiKjvr. S, C Montreal; Smith, Vanfelson, Mondelet, J. Fabriquk— Election, Held, 1. That under the Act 23rd Vict., c. 67, sect. 4, " To rcr " InsuRANCR." As tst cap' i of militia in possossiou of ivhitiir tVluniufHi'. 2 Itev. deJur.. l>. r>!l, lieijinti vs. Fiiijin' ih- In J'dIiiIc mix Tnniliftit. K. 11. Q. 1S21. Held, That riniipliilute cannot bo maintained f(»r a disturbance by enterinji a pew in tt church, by oiui parishioner 'ijiainst aiH)lhor. .Stuart'.s Hep., p. 135, Aii r \!i. fi'lnt/nm. K. H. Q., April, ISl'.t. Held. That an aetion of coiti/il'ilHlr <;annot lie ajrain^-: Fahrique by a parishione-r for a (muhk to tho plaintiff's |)ossession of iiis p«'\v in the parish church ; for the posstfMsiou of tbc pew is in the Fabriijue, and ho holds it for them. W'lrhr vs. Fuhnqitc (h QkHxc, K. B. Q. 1H2(». Held, 1. That the pur)K>sos for which a jh^w in a church has been us«m1, cannot be chaujred, without the consent, after deliberation, of the boily of tho Fnhriijue. 2. Tliat a mcctinj; of tbc parishioners to authorize the Fnhr'njue to take pro- cecdini.'s to recover a pew illej^ally ,xold or ^.jranted, can be called, and presided over by the Cure. (> L. C. Hep., p. 2!M>, Rtvd, Aj)))., Cnri li MiirguUllrrs il,: Cliatmu gu'ii/. Hesp. In Ajtpeal ; fiafontaine, (). J., Aylwin, Duval, Caron, J. Hehl, That an Jijrrcement in the lease of a pew, that in default of payment of rent to accrue at the period fi.xed by the lea.se, the lea.so should immediat*'ly be- come null and void, and the le.sjsors mij^httake and relet the .same without notice, is not couuuinatory, but will be enlitrced. 5 L, 0. Kep., p. i{, Jiiilntrd vs. The Cure et Muri/iiillieni dc Quebec. I» Appeal ; Lafontaiue, C. J., I'juiet, Aylwiu, €. Mondelet, J. Church Reoisteus, Held, That a di.sscnting minister of a Protestmit conpre bor of a congregation cannot bring an action to compel the trustees of church pro- See Sale op OooDs. '* See Sale op Immoveables. with Public Officer. See Oppicer, Public. " Corporation. See Corporation — Railway Company. " Partnership. See Partnership. " Bankrupt. See BANKRUPTCY. " Minor. See Tutelle. « « « n ii (( u ti It <( u ti tt ti CONTRAINTE I'AH CORPft, aa Contract, Bitilder'h. See Evidencr, Kxtm Work. DuiiiiigcH for breach of. See Damaoks. Delivory of. Sae Contract, Co.nsiueration, Mahriaqe. Fraud ill. Sre Frahd. Joint and flovcral concluHions. Si-r. PiiEADlNOS, DefdUHc on droit, made on Sunday. »SVe Uu.i.s and Notes datod on iSunduy. Notes. See I*rincii»al anu Aoent, Brokor. Payment. *SVe Pi.eai)IN(», I'nyment. Contractors, Uailway. Sec Kailwav Co., Damages. II :erisou I't ill. vs. Cunniinjkam ; and BoHton, tiiUc en came. 8. C. Montreal ; Hniith, Mon- delet, Chubot, J. Same case, 1 Jurist, p. 8G. In proceediiifrs for contniintc par cor/zs against tho Hhoriff, tlie Court of Appeals ordered proof to be made in the Court below, (before the prtmuunciiij^ of t|io contnniite) of the value of the floods seized and not roprcHontod by tho sheriff, and gave the ultornativc of payinui a person to imprisonment until he does some specific act, such as bring- ing back effects taken away after seizure. 2 Rev. de Jur., p. 121, Early vs. Moon, Quebic Inf. Term; Stuart, C. J., 1846. For Costs. Hek', That the plaintiff has no right to an attachment for contempt against a defendant, for non-payment of costs upon an incidental proceeding, but may obtain an execution for such costs during the pendency of the case. 5 L. C. Rep., p. 421, Ferguson vs. Gilmour. S. C. Q. ; Bowen, C. J., Meredith, J. Held, Tha't the contrainte pur corp^ for damages and costs, under the Ordon- nance of 1667, tit. 34, art. 2, has been abolished by the 12th Vict., c. 42. 4 Jurist, p. 211, Whitney vs. Dansereau. S. C. Montreal ; Berthelot, J. I CORPORATION. For Libel. 97 Held, by Bowen, C. J., and Chabot, J., That the Court has discretionary power to grant or refuse a contrainte against a defendant for non-payment of judgment in an action of damages for libel. Held, by Chabot, J., That where the formality prescribed by tne judgment, of serving a copy of the judgment for contrainte, on the defendant, has not been complied with, the defendant will be discharged from custody on motion. 9 L. C. Rep., p. 274, Gugy vs. Donaghue. S. C. Q. Notice in. Held, That under the 12th Vict., o. 42, the defendant could not be imprisoned, without personal service of the motion, for failing to produce statement of his effects. 1 Jurist, p. 4, Benjamin vs. Wihon, S. C. Montreal ; Day, Smith| Mondelet, J. Opposition Unfounded. Held, That to fyle an unfounded opposition a Jin d'annuller is a false plea, to iirpode the due course of justice, and is therefore a contempt, and an attachment may be granted. Quirouet vs. Wilson. K. B. Q. 1818. Hunt vs. Perrault^ K. B. Q. 1820. Held, That a rule for contempt of court will be issued against a party who fyles several oppositions of the same nature, with a view to retard the sale of the goods under execution. 5 Jurist, p. 70, Thomas vs. Pepin, and Pepin, fits, 0pp. C. C. Montreal ; Badgley, J. Contrainte against Curator. See Curator. Contrainte for Costs. See Costs, Contrainte. Contrainte granted for payment of bill of exchange j Prdvost^, No. 20 ; Cons. Sup., No. 20. Contrainte granted for payment of billet amending the judgment below ; Cons. Sup., No. 22. Contrainte on a debt due by merchant ; lb., No. 31. Contrainte refused against the widow of a merchant ; lb.. No. 23. CORPORATION. Members of. Held, That individual members of a corporation cannot be impleaded in respect of the aflfairs of such corporation. 1 Jurist, p. 289 ; Atty. Genl. Pro Reg. vs. Yule. S. C. Montreal Day, Smith, Meredith, J. Formation op. Held, 1. That a declaration tyled in pursuance of the 12th Vict., c. 57, sec. 1, which the parties signed, but to which they omitted to affix their seals, is never- O M*! '? 1 1 i 1 '■ ! ! ,1, 1 t * ■ Jr .98 CORPORATION. ; > i I!' theless sufficient, and answers the object of the statute, that of making known the names of the persons originally composing the society. 2. That the legal existence of a society cannot be questioned by an incidental proceeding, such as a plea, but must be attacked by proceedings under the 12th Vict., 0, 41. 8 L. C. Rep., p. 276, The Union Building Society vs. Russell and Moran, 0pp. S. C. Q. ; Chabot, J. Held, That an association, which during the progress of a suit has become incorporated, is entitled to take up the instance as a corporation. 3 Jurist, p. 51. Faribault vs. Richelieu Company. S. C. Montreal ; Day, J. Foreign, Service upon. Held, That in an action upon insurance policies issued in Upper Canada, service in Montreal, at the defendant's office there, is not sufficient, the Company being incorporated in Upper Canada, and having its chief place of business there, the Montreal office not being for the transaction of the Company's business gen- erally and without limitation. 5. L. C. Rep., p. 403, McPherson et aJ. vs. The Inland Marine Insurance Co. S. C. Montreal ; Day, Vanfelson, Mondelet, J. Held, 1. That service upon a Foreign Insurance Co., at their agency or office, within the jurisdiction of the Court, is a valid service on the Company. 2. Such Company may, on such service, be condemned to pay the amount of a policy efifected at another agency, in Upper Canada. 3. A judgment maintaining a saisie arrit and ordering the T. S. to pay the plaintiff, when served upon the T. S., operates as a transport ford, and vests the debt in the plaintiff, to the exclusion of the creditors of the defendant, even although he be insolvent. 3 Jurist, p. 159, Chapman vs. Clarke, Cur., and The Unity Life Insurance. S. C. Montreal ; Badgley, J. Held, 1. That a Corporation duly constituted in a Foreign country, may sue for the recovery of its debts in Lower Canada. 2. That in an action on a promissory note, the holder need not prove that value was given. 8 L. C. Rep., p. 328, LaRocqve et al., App., The Franklin County Bank, Resp. In Appeal ; Jjafontaine, C. J., Aylwin, Duval, Caron, J. Held, Thai, the 14th and 15th Vict., c. 128, does not give the corporation of the City of Montreal power to impose a duty or tax on the agents of a Foreign Insurance Co. doing business in the city, and that any by-law imposing such duty is null and void. 9. L. C. Rep., p. 449, The Mayor, &c., of Montreal vs. Woodi S. C. Montreal ; Mondelet, J. Same case, 3 Jurist, p. 230. Service upon. Held, 1. That service of process may be made upon a Municipal Corporation by leaving copy of the summons with the Secretary-Treasurer. 2. That on a contract for work, the contractor may bring his action of dan- ages, upon default of payment of the advances agreed on. 9 L. C. Rep., p. 436. In Appeal ; Corporation of Terrbonne, App., Valin, Resp. Lafontaine, C. J., Aylwin, Duval, Meredith, J. Held, That service of process upon the Secretary-Treasurer of a School Muni- .. . ' I t CORPORATION. 9» tipality is null. 3 Jurist, p. 189, School Commissioners of St. Pierre de Soret TB. School Commissioners of Wm. Henry. S. C. Montreal ; Mondelet, J. Held, Thut a service of process on the " last President," on the " late Secre- tory, " and on the " last Secretary " of a Railway Co., in the absence of any known or. discoverable office of such Company, is insufficient. 3 Jurist, p. 196^ Booth vs. The Montreal and By town R. Co. S. C. Montreal j Smith, J. I ' I • Actions by. Held, That the Supirieure of the Hotel Hieu, cannot sue alone for the Con. tent. La Swpirieure de V Hotel Dieu y%. Dinichaud. K. B. Q., 1816. Held, That the Quebec Benevolent Society can sue in an action by their president, and vice president. Neilson vs. Munroe, K. B. Q,, 1817. Held, That an action in damages brought against a secretary-treasurer of a local council " acting for and in the name of the corporation," for illegally planting posts on a vacant ground, is badly brought, and will be dismissed. Bourassa, App., Garicpy, Kesp. C. C. Montreal ; Guy, J., Cond. Rep., p. 55. Held, That a sous voyer has no right of action in his own name, to recover ihe cost of maintaining a part of a road which defendant had neglected to maintain. Muir, App., Decelle, {sous voyer), Resp. C. C. St. Hyacinthe ; McCord, J.,. 1854. Cond. Rep., p. 75. Held, That an action cannot be brought in the name of " The Corporation of " the Parish of St. Jerusalem, represented by the Municipal Council of the "Parish of St. Jerusalem," but will be dismissed, inasmuch as the suit must be in the name of the Corporation. In such case there is nothing to amend by. 3 Jurist, p. 234, Corporation of St. Jernsalem, t&c, vs. Quinn. C. C. Lachute j Smith, J. Held, 1. That the secretary-treasurer of a municipality, on his refusal to render an account, will be condemned to pay the amount established by the plaintiffs' proof, with interest at twelve per cent., with contrainte par corps. 2. That a rule to obtain such condemnation may be served at the Oreffe, if the defendant has left the Province. 4 Jurist, p. 125, Corporation of County of Chambly vs. Lonypret. S. C. Montreal ; Badgley, J. Held, 1. That an action brought by order of a municipal council, must be brought, not in the name of the Council, but in the name of the Corporation it represents. 2. That in the case submitted, the action being brought by a body having no \ega] existence, and the members of that body not being named in the proceedings, 10 costs can be awarded by the appellant on the reversal of the judgment appealed from. 12 L. C. Rep., p. 314, Lesm^urier, App., TJie Municipal Council of the Township of Chester West, Resp. Id Appeal ; Lafontaine, C. J., Meredith, Mondelet, Batlglcy, J. Arret ordering the execution of the actes de fondation of the Seminaj;y of Quebec. Cons. Sup., Ko. 83. 'IliiH ■Mrn.r^ / f^ /e />i/ !< f 100 CORPORATION. rifc m w Actions, Limitation of. In an action against the Corporation of the City of Montreal for damages reiulting from the destruction of fences and the absence of fences on the lands acquired for the Montreal Water Works under the 16th Vict., o. 127, and 7t]i Vict., c. 44 : Held, That the limitation of six months referred to in the Statute 7th Vict., c. 44, sect. 26, applied to the action in question and was fatal to it, although such limitation was not pleaded nor insisted on, either at the argument in the Court below, or in Appeal. 9 L. C. Rep., p. 334, Figem, App., The Mayor, tfcc, of Montreal, Kesp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Meredith, J. Same case, 3 Jurist, p. 294. Assessments. Held, That the Corporation of the City of Quebec has no privilege on real property for assessments thereon, such privilege not beiug granted by their act •f incorporation, and having no existence at common law. 3 L. C. Bep., p. 289, Entor vs. Orkney and 0pp. S; C. Q. ; Bowen, C. J., Duval, J. Held, That the lessees of canal lots on the Lachine Canal within the City of Montreal, under leases for 21 years, renewable on certain conditions, are owners of the land, and liable to assessment in respect of such lots. 2 Jurist, p. 260, Gould vs. The Mayor, &c., of Montreal; Badgley, J. See Cond. Rep., p. 73, Ex parte Gfould. Held, That a stipulation in a lease that the tenant shall pay the assessments for the current year, binds the tenant to pay the amount of five cents on the dollar levied under the provisions of the 22ad Vict., c. 15, Pinsonnault vs. Ramsay. C. 0. Montreal; Monk, J. Held, That the Circuit Court has no right to take cognizance of nullities in an assessment roll (for the construction of a church), resulting from the omission of the names of some of the contrihuahUs, and of fraud on the part of the syndics, but must render judgment agsunst the contribuabks according to the roll, duly homologated. 6 Jurist, p. 290, Syndics of the Parish of St. Nbrbert vs. Pacaud. C. C. Arthabaska; Stuart, J. Assessors. The Statute 14th and 15th Vict., c. 128, consolidating the acts incorporating the city of Montreal, enacts, section 34, " That at any quarterly or special meeting u* He * the said council shall appoint as many assessors for the said city « as may be necessary, not exceeding nine in number, and the said council may " grant the said assessors such remuneration for their services as the said council « may deem fitting." The council voted a remuneration to certain assessors at the rate of £225 per annum each. Held, In an action for a larger sum, 1. That the decision of the council waa not final as to such remuneration, and that the assessors, under the section above referred to, had a right of action for a reasonable remuneration to be established by witnesses, and based upon the value of the services rendered. v CORPORATION. 101 ■•^! 2. That a plea tendering an amount as due to the plaintiflP, and praying acte of its deposit into Oourt, entitled the plaintiff to a judgment for the sum tendered. Judgment below reversed and the value of service awarded m Appeal. 9 L. C. Rep., p. 303, Boulmget vs. The Mayor, dec, of Montreal, ''a Appeal; Lafontaine, C. J., Aylwin, Duval, J. ; Meredith, J., dissenting. AssKssoRS, action by. See Assumpsit quantum meruit. By-law. Held, 1. That under the 16th Vict., c. 138, a by-law of a municipal corpora- tion, authorizing a subscription for shares of stock in a railway to pass through the county, and the issuing of debentures to pay for such shares, is void, if no provision is made in the by-law for imposing an annual rate or assessment for the payment of interest, and the establishmcntof a sinking fund. 2. That in passing a by-law without making such provision, the corpo" ration exceeds its powers, and exercises franchises and privileges not conferred on it by law. 3. That under the 12th Vict., c. 41, the Superior Court, on petition in the name of the Attorney General, has jurisdiction over corporations, and to set aside such by-law. 5 L. (J. Rep., p. 155, Tke Attorney-General i>ro Regina vs. The Municipality of the County of Two Mountains, and the Montreal and Bytown R R. Co., Interv'g. S. (I Montreal ; Day, Smith, J. So held, also, in Atty. Gen./jro Reg. in Municipality of the County of Shefford, S. C. Montreal ; Day, Smith, Vanfelson, J. 5 L. C. Rep., p. 200. And in two cases against the Township of Shefford and the Township of Farnham. Ib.> p. 202 note. Held, That a by-law imposing an annual tax will only take effect for the future and not during the financial year then begun. 3 Rev. do Jur., p. 424, The Mayor, &c., of Quebec vs. Colford. Weekly Sessions, W. K. McCord, and Ander- son, J. In the Recorder's Court, Montreal, the applicant was condemned to pay a fine and to imprisonment, for having sold fresh pork in his sho^- within the city, contrary to the by-law of the Corporation, No. 196. Held, That the by-law was not applicable to the case in question, but only prohibited the exhibition and sale of provisions, &c., " in the streets, squares, lanes, and other public places, other than the public markets of the city." 11 L. C. Rep., p. 289, Ex parte Daigle. 8. 0. Montreal ; Bcrthclot, J. Same case, 5 Jurist, p. 224 ; and Cond. Rep., p. 66. Held, That the Corporation of the City of Quebec, cannot legally make a by- law imposing a water tax, on any of the wards within the city, until it is ready to furnish to the inhabitants of such ward a continuous and abundant supply of pure and wholesome water. 11 L. C. Rep., p. 436, Ex parte Dalli- more. S. C. Q. ; Taschereau, J. Held, That a stockholder in a joint stock company can bring an action of account against the Corporation, and thereby contest the validity of a by-law 1 \ 1 ■' ■I K hP w*: ■' H Mm' • H W^ liffi^ W^f^--\i ■1, : f • Ll 102 CORPORATION. (■'■; .!,:!, S it! TM I- r <)k made by a board of directors. Stuart's Rep,, p. 425, Keys vs. The Quebec Fire A$$. Co. K. B. Q. 1830. By-law, Setting aside. See Corporation — Roads. BuitpiNa Societies. Held, That the right of calling general meetings to make or alter rules and regulations, resides, in the case of building societies organized under the 12th Vict., 0. 57, 14th and 15th Vict., o. 23, and 18th Vict., c. 116, in thepresident or secretary of the society. 2. That the requisition for such meeting should be addressed to the presi- ■dent and directors, and should indicate the special objects of such meeting. 3. That the 7th sect, of the 18th Vict., c. 37, is not abrogated by the seventh sect, of the 18th Vict., c. 116. 4. That the rules and regulations should be enregistered as provided by the 6th section of the 12th Vict., c. 57. 5. That directors should be elected one by one, and not all by one vote. ^. That the president of the society should preside at all meetings for the passing of rules and regulations. 3 Jurist, p. 325, Jodoin vs. Dubois. S. C. Montreal ; Smith, J. Capitation Tax. Held, 1. That students in public schools are exempt from the capitation tax, and that the Corporation of the City of Quebec have simply the power to extend this exemption to other classes of citizens, but not to deprive such students of its benefit. 2. That the Corporation has power to increase such capitation tax from 28. and 6d. to 7s. 3. That the Laval University is a public school, and its students are exempted from such tax. 4. That a law student studying at the University, and under indentures as an advocate, is not deprived of his immunity as a student in a public school. 11 L. C. Rep., p. 457, Exparte Bourdages. S. C. Q. ; Taschereau, J. Damages Against. Held, That the Corporation of the City of Montreal is not liable in damage *o a person falling into the cellar of a house burned down, and not rebuilt, the lot being uninclosed, contrary to the by-law of the Corporation ; the cause of such damage being too remote. 8 L. C. Rep., p. 228, Bellangeret ux. vs. The Mar/or, d'c, of the Vity of Montreal. S. C. Montreal ; Day, J. Held, That the Corporation of the City of Montreal is liable for damages caused by water to goods in a cellar, the water having entered by a service pipe being left open during repairs made by defendants to the street. 6 L. C. Rep., p. 89, BelUveau vs. Corporation of Montreal. S. C. Montreal ; Day, Smith, Mondelet, J. CORPORATION. 108 Held That the Corporation of the City of Montreal is liable for damages occasioned by a mob riotously entering into the plaintiff's house, in the city, and breaking windows and furniture and spilling liquors. 9 L. C. Rep., p. 463, Carson et al. vs. The Mayor, doc., of Montreal. S. C. Montreal; Smith, J. Held, That the Corporation of the City of Montreal is liable for loss occa- sioned by the burning of property within the city by persons riotously assembled therein. 10 L. C Rep., p. 426, Watmn, App., vs. The Mayor, tfcc, of Mon- treal Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Mondelet, J, Held, That an action in damages for bodily injuries and loss of clothing dur- in*^ a riot, will not lie against the Corporation of the City of Montreal, although the City Police is raised by, and is under the control of the Corporation. 1 L. C. Rep., p. 408, Drolet vs. The Mayor, Aldermen and Citizens of Montreal. S. C. Montreal ; Smith, Vanfelson, Mondelet, J. Held, That the Corporation of Montreal is liable to fill up an old cours d'eau which does injury to property within their jurisdiction ; and in default of doing so, to pay damages. 1 Jurist, p. 166, Voyer vs. Corjwration of Montreal, S. C. Montreal ; Day, Mondelet, Chabot, J. Held, That the Corporation of the City of Montreal is liable for damages caused by the overflowing of their drains, when these drains are obstructed ; that where packages of bottled porter and ale are rendered unmerchantable, damages may be claimed, although the contents of the bottles are not injured. 2 Jurist, p. 78, Kingan vs. The Mayor, Ax., of Montreal. S. C. Montreal; Mondelet, J. So also in Walsh, vs The Mayor, iScc., of Montreal. 5 Jurist, p. 335 ; Smith, J. Also Mercier et al. Same case. Cond. Rep., p. 54. Held, That municipal corporations are liable by a statute of the state of Massachusetts to pay damages for injury received by reason of any defect or want of repair in any highway, &c. 3 Rev. de Jur., p. 257, Hall vs. City of Boston. Com. Pleas, U. S., 1847. Election. Held, That although two elections of City Councillors took place the same day, the one to fill an ordinary vacancy, and the other a vacancy caused by the retirement of a member of the Council, yet the candidate having the less number of votes must fill the ordinary vacancy, and remain in office for the longer period, if he was nominated to fill that vacancy ; because the nomination by the electors stamps the character of the election ; and all votes given at such election must be held to have been given in accordance with the requisition of the elec- tors. 12 L. C. Rep., p. 425, Lee vs. Burns. S. C. Q. ; Taschereau, J. Held, On proceedings by requite lihelUe for usurping the office of coun- cillor for the City of Montreal, before two justices in vacation, that under the 12th Vict., c. 41, sect. 1, and the 14th and 15th Vict., c. 128, sect. 27, the justices, in vacation, had no jurisdiction. 10 L. C. Rep., p. 14, Adams vs. Duha- mel S. C. Montreal ; Smith, Badgley, J. Held, That where the person, named by the warden of the county, to pre- side at a meeting of electors assembled for the election of councillors for a rt'- i ' l<^^ 104 CORPORATION. ^ •i} 1' municipality, absents himself, afler the commencement of the meeting, the elec- tors present have no right to name another president in his stead, and that the election made under the presidency of the person so named by the electors, is null and void. 10 L. 0. Rep., p. Ill, Perrault vs. Brochu. S. C. Arthabaska; Stuart, J. Held, 1. That under the 12th Vict., 0. 126, sect. 8 and 41, a person is not qual- ified as a councillor of the City of Montreal, who is not posfiessed to his own use and benefit of real and personal estate within the city, after the payment of his just debts, of the value of £500 currency. 2. That a councillor who becomes insolvent during the period for which he is elected, is thereby disqualified to act as such councillor. 4 Jurist, p. 281, Hol- land vs. Bristow, S. 0. Montreal; Smith, J. Held, 1. That a municipal election is void, because the votes were taken upon loose sheets, and without a poll book stating the purpose of the election, giving the names of the candidates, and those of the electors, with their additions, and places of residence, and because the votes were given without naming the candidates for whom they were given, but merely by indicating the party for whom such votes were given. 2. That petitioners, in like cases, who pray that they be declared duly elected, are bound to allege and prove that they are duly qualified and eligible for municipal councillors. 8 L. 0. Rep., p. 181, Guay et ah, Petrs., Blanchet et al., Resp. S. C. Q.; Chabot, J. Held, 1. That the law of Lower Canada being silent upon the subject, " bri- bery" in municipal elections does not annul the votes of the persons bribed, nor disqualify the party by whom they were bribed. 2. That the respondent cannot by a special answer, be called upon to answer charges not specified in the petition, requite libelUe,\inihr the 12th Vict., c. 41, sect. 3. 3. That the petitioner having prayed for a judgment upon the right of T. M. to the contested office of t^ity Councillor, the defendant had a right to raise an issue to try the right of T. M. to hold such office, and to show that his claims were unfounded. 8 L. C. Rep., p. 332, Wood, Petr., Ream, Resp. ; C. C. Quebec ; Meredith, J, Held, That a person elected a City Councillor for the (!ity of Montreal, will be ousted from his office, on requite lihelUe, if it appears that he was not a. resident householder in thecily for 12 months next previous to the election, but a boarder and lodger in a boarding house. Lynch vs. Papin, S. C. Montreal ; Smith, Vanfelson, Mondelet, J. Con. Rep., p. 109. Held, That the Corporation of the City of Quebec has a right to delegate to a committee tbe power of investigating the facts in case of a contested election, and that the resolution of the council on the report of such committee, annulling the election of a councillor, and declaring his opjwnent elected, is legal and within the authority of the council. 4 L. C. Rep., p. 177, Binet vb. Giroux. In Appeal ; Rolland, Panet, Aylwin, Mondelet, J. j CORPORATION. 105 Held, That in inquiring": iuto ihe legality of tho votes given at a munioipal election for the City of Quebec, the Judges are b. Montreal ; Berthelot, J. Hold 1. That when a proprietor who has been notified to do certain road work, is not in delay to do the work the $ous voijer is not justified in doing it on his account. 2. That neither the tout vnyer nor the inspector of roads is authorized under the municipal law to do such road work themselves. 6 Jurist, p. 166, De Beaujeu, App., Groux, Resp. In Appeal ; Lafontaine, 0. J., Aylwin, Duval, Meredith, Mondelet, J. Judgment revercod. Hold, That an inspector of roads has no right to sue in his own name for the recovery of a penalty under the * 'ons. Stat, of L. C, chap. 24, sect. 48, par. 6, against a defendant for neglecting to maintain his front road, but such action should be brought by the inspector in the name of tbp municipality. Actiou dismissed with costs. 6 Jurist, p. 200. 0. i\ Ste. Scholostique ; Berthelot, J. See Corporation, Actions by. See Certiorari— Roads. Streets, Obstruction op. Held, That the proprietor of a lot of land adjoining a street cannot complain of obstructions to it, if he has no title establishing his right of way, and the street has never been legally established as a public street. 12 L. C. Rep., p. 138, Johnson et al. vs. Archambault. Sk C. Montreal ; Smith, J. Responsibility for Votes. Held, That a municipal councillor cannot be condemned to the penalty re- ferred to in the 45th and 62nd sections of the Municipal Act of 1860, for having proposed and voted for a motion to set aside plaintiff's petition for the nomina- tion of a special superintendent to report on the said petition. 6 Jurist, p. 41, Souligny vs. Vezina. C. Ct. L'Assomption ; Bruneau, J. "Wooden Buildings. Held, That a by-law of the City of Montreal " that no person shall hereafter " construct any wooden building of any sort or description whatsoever, withm the 1 1 ' 110 COSTS. 2il^ n^ " limits of the city, and any person infringing any of the said provisions shall be " liable to a penalty," &c., must be so interpreted as to make it applicable only to the proprietors of lots or buildings, and not to the workmen employed in erectinu' such buildings. 6 L. C. Rep., p. 482, Ex parte Lahaye et al. S. C. Montreal ; Day, Smith, Mondclet, J. Held, In a case under the by-law above mentioned, That a conviction will be quashed, no notes of evidence having been transmitted to the Court above, to show whether the applicant fell within the provisions of the by-law, as being a pro- prietor, or whether, as sworn to in the affidavit, he was merely as workman employed by the proprietor. 8 L. C. Kep., p. 255, Ex parte Ledoux. S. C. Mon- treal; Smith, J. Held, 1. The Court, will examine into the legality of a by-law on motion to quash a conviction under it. 2. Power given to a corporation to impose by by-law penalties " not' exceed- ing £5 or sixty days' imprisonment, is exceeded by passing a by-'aw imposing a penalty of £5, and imprisonment for sixty days in default of payment, and such by-law is illegal. 1 Jurist, p. 47, Ex jyirte Rudolph and Harbour Commissioners. S. C. Montreal ; Day, Smith, Mondelet, J. COSTS. Taxation of. Held, That the Court will revise the taxation of a prothonotary who refused to allow bailiff's fees for service of subpoenas, in consequence of more than four names being inserted in the original subpcena. Such insertion of more than four names cannot prejudice the rights of a party in any way. 9 L. C. Rep., p. 393, Couillird vs. Lemintx. S. C. Q. ; Chabot, J. Held, That taxation by the prothonotary, refusmg full costs to plaintiff's attorney on the ground that the only pleafyled (a demurrer,) was not a plea to the merits, will be revised, such plea being a plea to the merits. 9 L. C. Rep., p. 405, Noimand vs. Huot dit St. Laurent. S. C. Q. ; Chabot, J. Held, That in an action over £50, where £50 and interest are awarded by the judgment, the plaintiff is only entitled to costs of a first class case in the Circuit Court. 1 L. C. Rep., p. 433, ValUe vs. Latouche. S. C. Q. ; Stuart, J. . Held, That the prothonotary has no right to the entrance fee of £1 3s. 9d, OD the fyling of a petition by the curator to a vacant estate, under the 23rd Vict., c. 57, sect. 52, Ex parte Langlois, S. C. Q. ; Taschereau, J. Held, That where a judgment for £10 was obtained in an action for personal KTongs, costs will be taxed as on a judgment for that amount in the (/ircuit Court. 1 Jurist, p. 266, Wilson vs. Morris. S. C. Montreal; Day, Smith, Mondelet, J. Held 1, That the Court will look at the judgment of the Court of Appeals to ascertain the class of costs thereby awarded. 2. That where in an action for £5000 damages for libel, the Court of Appeals awarded the plaintiff £2 10s. and costs, the plaintiff is only entitled to costs &s in an action in the Circuit Court for £2 10s. COSTS. Ill ions shall be jable only to \ in erectinff /. Montreal ; ction will be lOve, to show being a pro- is workman S. C. Mon. m motion to not' exceed- imposing a it, and such imissioners. refused to i than four i than four ;p.,p.393, plaintifif 's plea to the , C. Rep,, ded by the he Circuit •t, J. :i 3s. 9d, Jrd Vict., personal e (/ircuit , Smith, Appeals Appeals costs as 3. That under the 12th Vict., c. 38, sect. 82, the costs will be regulated by the amount of the judgment, unless from the judgment itself it appears that it was the intention of the Court to award costs of a higher class. 4. That a party who moves to revise certain items only in a bill of costs, waives his right to object to others ; and a second motion to revise will be rejected, although the party moving offers to pay the costs of his second motion. 10 L. C. Rep., p. 478, Kerr vs. Gu^y. S. C. Q. ; Taschereau, J. Held, That where an action was brought for £16 83. OJd., of which £2 2s. was AvlQ personally, which the defendant oflFered with costs of the inferior term, and the balance hypothecarily, against which prescription was pleaded, judg- ment will be given for £2 2s. with costs of inferior term, and the rest of the action will be dismissed with costs of the superior term. 1 Rev. de Jur., p. 250, SanguinH et al. vs. Lecuyer. Q. B. Montreal, 1832. Held, 1 . That copies of old plans produced by a party in support of his preten- sion will be considered as exhibits and taxed as such. 2. That when the costs of bringing a witness from Upper Canada is not greater than the expense of a conii.ussion rogatoire, the party requiring his evidence may examiie the witness in Quebec, and his travelling expenses will be allowed in taxation. 12 L. C. Rep., p. 413, Brown vs. Gugy. S. C. Q. ; Taschereau, J- Security for. Held, That a plaintiff, resident out of the Province, cannot sue in formd pau- peris, in consequence of the 41st Geo. 3, c. 7, sect. 2, which compels all plain- tiffs resident without the Province (without distinction) to give security for costs. Barry vs. Harris. K. B. Q. 1809. Held, That a seaman, not resident in the Province, must give security for costs. Heardsman vs. Harrowsmith. K. B. Q. 1809. Held, That an oflScer, stationed with his regiment in the Province, cannot be held to give security for costs. Sutherland vs. Ileathcote. K. B. Q. 1808. Held, That an affidavit of belief that the plaintiff resides without the Province is not sufficient to obtain security for costs. Willey et al. vs. 3fure et al. K. B. Q. 1809. Held, That householders, resident in the Province, are good security for costs, and one is sufficient if he justifies. Colver et al. vs. Darreau et al. K. B. Q . 1810. Held, That an incidental plaintiff, resident without the Province, must give security for costs. McCallum vs. Delana. K. B. Q. 1812. Held, That where a defendant fyles an exception d. la forme after a rule for security for costs made absolute, staying proceedings until security shall have been put in, the plaintiff is not entitled to a hearing on the merits of such excep- tion, until he shall have put in such security. 5 L. C. Rep., p. 342, Easton vs* Benson. S. C. Quebec ; Stuart, Gauthier, Taschereau, J. Held, That where the plaintiff has left the Province after judgment obtained, he must give security for costs to an opposant on contesting his opposition. 9 L. C. Rep., p. 72, Mahoney etal. vs. Tonikins, and Geddes et al, 0pp. S. C. Montreal ; Badgley, J. '1 ' :i( «:;;■ / MilSt. i| I I mi 112 COSTS. Held, That a plaintiff residing out of the Province, and suing in /orrndpau' perit, is bound to give security for costs under the 41st Geo. 3, c. 7, sect. 2. 10 L. C. Kep., p. 234, Gagnon vs. Woolley. C. 0. Q.; Stuart, J. Held, That the sheriff cannot demand security for costs, before obeying the order of the Oourt. IJurist, p. 3, Leverson vs. Cunningham, aad Boston, mite en cause. 8. C. Montreal ; Day, Smith, Mondelet, J. Held, That a plaintiff residing without the Province, who contests an opposi- tion, is not bound, under the 41st Geo. 3, c. 7, sect. 2, to give security for costs, inasmuch as he occupies the position of defendant. 10 L. 0. Rep., p. 452, Brigham vs. McDonnell et al., and Devlin, 0pp. S. C. Q. ; Stuart, J. Held, That the plaintiff, having failed to give security for costs within the delay fixed by the Court, the action will be dismissed with costs on defendant's motion. 2 Jurist., p. 109, Adams vs. Sutherland. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That an oppoaant h Jin de conseroer, resident out of the Province, is bound to give security for costs, on contesting the opposition of another opposant. 2 Jurist, p. 287, Benning vs. The Montreal Rubber Co., and Young, 0pp. S. C. Montreal ; Mondelet, J. Held, That a defendant who is summoned to appear in vacation, and who has appeared, has a right to demand security for costs, on the first juridical day of the following term, although he did not give notice of such motion within the four days next after his appearance 2 Jurist, p. 306, Comstocle et al. vs. Ledeur. S. 0. Montreal; Smith, Mondelet, Chabot, J. Held, That to comply with an interlocutory judgment ordering security for costs to be given by a non-resident plaintiff, tu)o sureties must be furnished. 4 Jurist, p. 127, Donald vs. Becket Monk, J. Held, That a non-resident plaintiff who contests the declaration of a garnishee, will be ordered, on motion of the garnishee, to give security for costs: 4 Jurist, p. 146, Mayer et al. vs. Scott, and Benning et al., T. S. ; C. 0. Montreal; Smith, J. Held, That it is competent for an opposant be/ore fyling a contestation of the opposition of another non-resident opposant, but not after contestation, to call upon the latter to put in security for costs. 4 Jurist, p. 148, Bonacina vs. Bonacina, and Mcintosh et al., 0pp. S. 0. Montreal ; Badgley, J. Held, That a motion for security for costs is too late, when notice is given thereof after the fourth day from the date of the appearance 5 Jurist, p. 25, Tiers et al. vs. Trigg et al. CO. Montreal; Monk, J. Held, That a non-resident intervening party, is bound to give security for costs. 5 Jurist, p. 73, Scott et al. vs. Ami in, and Young et al , lutervenhig party. 0. C. Montreal ; Monk, J. Held, That a motion for security for costs is in time, although notice thereof has been given after tlie four days from the appearance, if the motion be made on the first day of the ensuing term. 5 Jurist, p. 252, Perry vs. St. L. Elevat' ing Co. S. C. Montreal ; Smith, J, Held, That where a plaintiff does not give security for costs within a delay fixed by the Oourt, the action will be dismissed. 1 Jurist, p. 196, Adam vs. Sutherland. S. C. Montreal; Smith, Mondelet, Chabot, J. COSTS. 113 Held, That a non-resident plaintiff will be permitted to give security for costs by deposit of a sum of money. 4 Jurist, p. 300, Mann et al. vs. Lamhe. S. C. Montreal ; Berthelot, J. Held, That a motion for security for costs, of which notice was given on the 18th May, the appearance being fyled on the 12th May, is too late, notwith- .'tanding the return was made in vacation. Motion rejected. Williams vs. Arthur ct al. S. C. Montreal; Cond. Rep., p. 82. Held, That where a plaintiff neglects to put in security for costs within the delay fixed by the Court, his action will, on motion of the defendant, be dismissed with costs. 12 L. C. Rep., p. 404, Castongui vs. Mason et al. S. C. Montreal ; Monk, J. Same case, 6 Jurist, p. 121. Held, That the offer of one person as security for costs is insuflficient. 6 Jurist, ji. 40, Powers vs. Whitney. S. C. Montreal ; Monk, J. Held, That a non-resident plaintiff contesting an opposition, is not bound to ;'ive security for costs. 6 Jurist, p. 40, Morrill vs. McDonald, and Boss et al., 0pp. S. C. Montreal; Smith, J. Tariff of Fees. In an action by attorneys against a sheriff. Held, 1. That the 100th sect, of the Judicature Act, (12th Vict., c. 38,) which impowers the judges of the Superior Court to make a tariff for the officers of justice, speaks only of uniformity in the practice and proceedings, and not in the i'ees. 2. That the uniformity spoken of in the preamble to the section in question, directs a general, and not such an absolute uniformity as that the slightest vari- ance would produce a nullity in the whole. o. That the tariff of fees of the several officers of justice cm be promulgated }.t different times, and that the order affecting the fees of the prothonotary being complete and distinct by itself, cannot affect the tariff of fees of the sheriffs, bailiffs, and other officers. Action dismissed. 1 L. C. Rep., p. 436, Chabot et uL vs. Scwell. S. C. Quebec ; Bowen, C. J., 3Ioredith, J. In Appeal of the above case, Held, That an action to recover 3s. 4d., a fee received by the sheriff of the district of Quebec under a tariff promulgated by six Judges of the Superior Court under the said 100th sect, of the Act, cannot be maintained. 1 L. C. Rep., p. GG4 ; Holland, Panet, Aylwin, J. Distraction of. Held, That [{distraction dc/rais is not demanded when judgment is rendered, it cannot afterwards be awarded without the presence of the parties. 2 Rev. de Jur., p. 62, Ireland vs. Stevens. K. B. Q. 1819. Held, That where an attorney has demanded distraction defrais, the parties cannot arrange or settle between themselves as to such costs. Stigny vs. Stigny etal K. B. Q. 1842. ■-f: :^^' '' 114 COSTS. Distraction or. Held, That the attorney's right to distraction de/rais is personal, and is vested in him. Esaon vs. £lacJe. K. B. Q. 1821. Held, That a motion made in the Court of Appeals for distraction of the costs incurred in the Court below, will be granted. 12 L. C. Rep., p. 402, Gonvem App., Clarke, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Meredith Mondelet, J. Distraction of costs and disbursements granted. Pr^vost rendered, but before the repdering of the judgment. 8 L. C. Rep., p. 122, Mar- childon vs. Mooney, and Divers, 0pp. S. C. Quebec ; Bowen, C. J. Held, That a report of collocation and distribution which collocates the plain- tiff for his full costs of action, to the prejudice of the landlord's claim for rent, will be set aside. 6 Jurist, p. 293, Kerry et al. vs. Petty et al. C. C. Montreal; Smith, J. CONTRAINTE FOR. Held, That the code civile, tit. 34, art. 2, provides a contrainte par corps for costs exceeding 200 livres, but the redaction provides that this contrainte shall, in such cases, be in the discretion of the court, and a special case must therefore be '4 ill i •■ ! COSTS. 115 shewn to the court, whenever this extraordinary remedy is asked. Woodrlngton y,. Taylor. K. B. Q. 1821. Costs — Discrbtionary. Held, That costs in matters of certiorari are discretionary on setting aside a conviction. 1 Jurist, p. 255, Ex parte Leonard. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That the costs of expertise are in the discretion of the court, and will, at least, he divided between the parties where the report has the effect of mate- rially reducing the plaintiff's demand. 2 Jurist, p. 208, Gardner vs. McDonald. S. C. Montreal ; Smith, J. Previous Costs. Held, That non-payment of costs in a former action, cannot be the subject of an exception dilatoire or peremptoire. Eobichaud vs. Fraser. K. B. Q. 1817. Held, " That the costs due on a former action are unpaid," cannot be pleaded by exception, but a motion to stay proceedings will be allowed, if it appears that the former action was for the same cause, and was heard upon the merits. Chartier vs. McLeish. K. B. Q. 1821. Held, That to entitle a defendant to a suspension of proceedings, on the ground of costs being due on a previous action, it must appear that the causes of both actions are identical, and between the same pai '. 1 Jurist, p. 290, Lalonde vs. Lalonde. S. C. Montreal ; Day, Smith, Mondelet, J. On Amendment. Held, That a plaintiff on being allowed to amend his declaration after excep- tion ('t la forme fyled, must pay the full costs of the action. 6 L. C. Rep., p. 474, Boudreau vs. Richer. S. C. Montreal ; Day, Vanfelson, Mondelet, J. Held, That a defendant will be allowed to appear and plead in an action of damages ai"ter a lapse of five months, and after service of interrogatories, (although his failing to appear was owing to his own fault,) but on payment of full costs of tlie action. 1 Jurist, p. 9, Hayden vs. Fitzsimmons. S. C. Montreal ; Day, Smith, Badgley, J. Held, That a judgment rendered in appeal, setting aside the verdict of a jury and condemning the respondent to pay " the costs in the court below," includes all the costs of the trial by jury, and not merely the costs upon the motion for setting aside the verdict. 9 L. C. Rep., p. 268, Ouimette et a2., App., vs. Papin, Hasp, In Appeal ; Lafontaine, C. J., Aylwin, Duval, Meredith, J. See Beaudry vs. Papin, and Papin, 0pp. S. C. Montreal ; 3 Jurist, p. 46. In an action of damages a judgment was given on the verdict of a jury for 46s. with " costs of the action." Held, That in interpreting this judgment, only 46s. costs should be allowed ander the 7tb ijreo. 4, c. 6, and the Judicatore Act of 1849, sect. 91. 1 Jurirt » ' \ I m m 116 COSTS. p. 191, Leduc vs. Busieau. In Appeal; Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, That where judgment is rendered for 10s. more than the amount tendered, but the defence is sustained in the main, the plaintiff must pay the costs of coo testation. 2 Jurist, p. 286, Houth vs. Dougall. S. C. Montreal ; Day, J. See " Bills and Notes," Error in date. '' Corporation, Actions by. Of Prooeedinqs against Surety. Held, In the Superior Court, Montreal ; Bertholot, J., in an action against the maker of a note and two indorsers, to recover the costs incurred on an appeal by the creditor, whose action, on the note against the three defendants, was dis- missed on an exception h la forme fyled by the maker alone, which judgment Wiu reversed in appeal ; That the indorsers were not liable for the costs in appeal, there being no proof of collusion between them and the maker, in respect of such ex- ception, and inasmuch as the writ of appeal was not held to be signified to the indorsers, who appeared and pleaded separately, in the original action, by the same attorney, who appeared for the maker of the note, and upon whom the writ of appeal was served. Confirmed in Appeal. 6 Jurist, p. 269, Boucher, App,, Latour et al, B,esp. Duval, Meredith, and Mondelet, J. ; Lafontaine, C. J., dissenting. Held, That a surety for rent is not bound to pay the costs of a suit against the principal debtor, which was not notified to him. 6 Jurist, p. 117, Nye vs. Isaacson. C. C. Montreal ; Berthelot, J. Op Opposition. Held, That a party collocated ultra petita must pay the costs of the contesta- tion of such collocation, although on notice of such contestation he immediately acquiesced in it, and consented that judgment should be given as demanded in the contestation, but without costs against him. 11 L. C. Rep., p. 172, Adam vs. Hunter, and Evans, 0pp. S. C. Quebec; Stuart, J. Held, That where plaintiffs declare they do not contest an opposition, main levee will be granted with costs against defendant. 3 Jurist, p. 167, Corse vs. Taylor, and Taylor, 0pp. S. C. Montreal ; Badgley, J. Held, 1. That on fyling an opposition to a judgment rendered in vacation, the opposant is bound to deposit at the Greffe, under the 14th sect, of the 22nd Vict., e. 5, and the 46th sect, of the 23rd Vict., c. 57, only the- plaintiff's disburse- ments since the return of the action, exclusive of the costs of return, up to judg- ment inclusive, but no advocate's fee. 2. That, in such case, the opposant is not bound to furnish to the plaintiff i copy of the affidavit. 5 Jurist, p. 101, Gauthier vs. Marchana. C. C. Montreal Badgley, J. Held, That costs will not be awarded against an opposant, claiming under a general mortgage, who restricts the conclusions of his opposition 60 soon as he dis- '4 U ..I covers th wcoage. Divers C Held, bursemen there bein 402, Chrn Held, into court that cause p. 82, Boi Held, collocated unless he s Rep.,p. 1' Held, with a ne\ nissed wit Ritchie et < Held, T T8. Minan Held, T Anderson. Held, T mencement ing. Bowi Held, T Term, althc 1816. Held, Tl if one is ace ing his co-d Q. 1819. Held, Tl cause, cann; bursements Held, Tl the sum so U. f COSTS. Op Opposition. UT I ' eovers that part of the property upon which he olaims, is held in firee and oommon MCoaee. 12 L. C Rep., p. 170, The Quebec Building Society vs. Jones, and DiTcrs 0pp. S. C. Quebec ; Stuart, J. Held In Appeal, That an attorney, ad lites, may recover his fees and dis- bursements from his own client without the production of a taxed bill of costs, there being a tari£f made by rule of practice, under a statute. 1 L. C. Rep., p. 402 Cherrier vs. Titus. RoUand, Panet, Aylwin, J. Held That the plaintiff may recover the costs of a former action not returned into court, notwithstanding a prayer for distraction by the attorney ad litem in that cause, the defendant having on settlement agreed to pay them. 1 Jurist, p, 82, Rolland vs. Lariviire. S. C. Montreal ; Smith, Mondelet, Chabot, J. Reqistrar's Certificate. Held, That on a contestation of the registrar's certificate, the party over KoUocated by the prothonotary, will be condemned to pay the costs of contestation, unless he shall have fyled a remittitur for the amount over collocated. 12 L. C. Rep., p. 174, Marois vs. Beamier, and Lariviire, 0pp. S. C. Quebec ; Stuart, J. Fraud. Held, That when the plaintiff and defendant have settled a case between them, with a view to defraud the plaintiff's attorney of his costs, the action will be dis- uissed with costs against the defendant. 6 L. C. Rep., p. 98, Richard vs. Ritchie et al. S. C. Quebec ; Stuart, Gauthier, Taschereau, J. Generally. Held, That a plaintiff who sxiea in formd pauperis may recover costs. Giruux w. Menard. K. B. Q. 1819. Held, That costs must be asked, or they cannot be obtained. Stilsou vs. Andmon. K. B. Q. 1812. Held, That no costs can be obtained for an attorney's letter before the com- mencement of the action ; it is a voluntary courtesy, and not a necessary proceed- ing. Bowen vs. Lee. K. B. Q. 1812. Held, That a plaintiff may, in some instances, recover the costs of the Superior Term, although judgment is rendered for £5 only. Godhout vs. Giroux, K. B. Q. 1816. Held, That where two defendants join in their defence, in an action of trespass, if one is acquitted, he is eiUitled to his costs against the plaintiff, notwithstand- ing his co-defendant is found guilty. Henderson vs. Thompson et ah K. B . Q. 1819. Held, That an attorney prosecuting his own action for costs due in a former cause, canriOt have judgment for costs ; he is entitled to the amount of his dis- bursements and no more. Vallilres vs. Duhamel et al. K. B. Q. 1819. Held, That where a plaintiff recovers no more than is paid into Court, and the sum so paid was tendered before institution of the action, the action must 1 i' - 1 1 vi 1 ii ¥r' i '■'" ^ 118 COSTS. f^. Woodrlngton vs. Taylor. be diamiased, with coats against the plaintiff. K.B. Q.1820. Hold, That whore the defendant, before the return of tho writ of summonH. paid tho plaintiff his debt, but no costs, tho court will condemn tho defendant to pay costs up to the day on which he paid the debt. Oagnon vs. McLeaah, K. B. Q. 1820. Costs in appeal divided, although the judgment below was reversed, the pleas of the defendant, as well as his reasons of appeal, being held to bo defective 1 L. C. Rep., p. 84, Desbarats vs. Fabrique de Quebec. RoUand, Aylwiu, Panet, Ross, J. Held, That all fees of the clerk of the Circuit Court, in cases instituted pre- fiously to the promulgation of the new tariff, (17th Dec., 1850), must be taxed according to the provisions of the previous tariff. 1 L. C. Rep., p. 105, MonI; et al, Petrs. C. C. Montreal; McCord, J. So held in the Superior Court, Montreal. 1 L. C. Rep., p. 476, Tunstall v>, Robertson. Smith, Vanfelson. Mondelet, J. So held as to opposition. 1 L. C. Rep., p. 483, Delery vs. Quig. Held, That an action settled aa to the principal debt only, before return into <30urt, on condition that the defendant should pay the costs, may be returned and proceeded with for costs only, no delay having been given for the payment of tho costs. 1 L. C. Rep., p. 238, Darche et al. vs. Dubuc. S. C. Quebec; Bowcu, C. J., Meredith, J. Costs, as to prescription against. See Peescription. Costs of voyage et s6jour allowed. Cona. Sup., No. 2. Cost of affixing aeals, inventory, and personal expenses, and deuil de la veuve. declared privileged. Cons. Sup., No. 27. Costs not granted against a body having no legal existence. See Corpora- tion, Name of. Costs against Crown. See Crown. " against Public Officer. See Officer, Public, Costs. '' assessed by arbitrators. See Arbitration. See Railway Co., award oath. <' Attachment of. ^ee Attorney, Costs. " Attachment for non-payment of. See Contempt, Costs. " in Bornage. See Action Bornaqe. " in suits by Revenue Inspector. Sec Certiorari, Licenses. ^' open. See Costs, discretionary. " on amendment. See Amendment. « of Attorney. See Attorney, Costs. ♦' against Surety. See Bills and Notes, proof of. " granted when right of action is denied. «S^ee Dower. I- I;! vs. Tayht. Df summoDH. defendant to leaah, K. B led, the pleas bo defective, ind, Aylwiu, istituted pre- lust be taxed [). 105, Mohh Tunstall v>, e return iuto returned auii lyment of tin sbeo; Bowou, Idela veuve. sc Corpora LWAY Co., iCS. ■I . 1 : 1 ■% CONSIQNMBNT— CROWN. CONSIGNMENT. 119 Oonslgnce of goods could not before the 10th and 11th Vict., c. 10, pledge them tiir their own debt, and the consignor might rovcndicato the goods in the hands of a third party. 1 L. C. Rep., p. 318, Rochon et al. vs. Walker; Q. B. (Quebec ; Stuart, C. J., Bowen, Panet, Aylwin, J. See Carriers. — Sale of Goods, Commission. COMMISSION ROGATOIRE. Sec Enqu£te. CROWN. Prerogative op. Held, That when the King claims possession of a lot of land, in right of the Crown, the defendant must plead title and prove it ; and if he does not do so, judg- ment will be entered against him. Rex vs. Leliiore. K. B. Q. 1821. Held, 1. That the Crown can recover interest where a private individual would be entitled to it, as in an action for money paid under a written contract on ac- count of a third person, in which it may be recovered from the dat« of service of process of the court. 2. Where the greater rights and prerogatives of the Crown arc in question, locourse must be had to the public law of the empire, by which alone they can be determined ; but, where the minor prerogatives and interests are in question, they must be regulated by the established law of the place where the demand is made. Stuart's Rep., p. 324, Atti/. Gen. pro Rege, App., Black, Resp. In Appeal ; 30th July, 1828. Held, That on an indictment for murder instituted by the Crown, the law officers of the Crown, and those who represent them, are in strictness entitled to the reply, although no evidence is produced on the part of the prisoner. 1 L. C Rep., p. 317, The Quern vs. Quatre Pattes; Panet, J. Held, That the Crown does not receive nor pay costs. 3 Rev. de Jur., p. 371, Chandler, App., Attt/. Gen. j^ro Rege, Resp. In the Privy Council ; 1835. As to effect of Bankruptcy certificate against the Crown. See Bankruptcy Certificate. Letters Patent : See Registration by Crown. Crown's Rights of en Dishirance : See Curator, DESHfiRANCE. Privilege as to Debentures. Held, That such persons only as had themselves suflfered loss by fire at Que bee iu 1845, and were owners of lots on which they intended to rebuild, were entitled to a loan under the statutes in aid of the city of Quebec, 9 Vict., c. 62, 10 and 11 Vict., c. 35; and that the Crown has no privilege, or mortgage Avithout euregistration, over a subsequent mortgagee whose obligation has been I ill 120 CROWN — CnRATOR. In 1 L. C. Rep., p. 310, Tetu et al. vh. Ohichntyer, and Opptii 8. C. Quebec ; Bowen, C. J., Duval, J. St€ Fire. Beach lots. Held, That riparian proprietors are not entitled, as a matter of right, to a grant of beach lots on the River St. Lawrence fronting their property, in prufercnci> to any other ; and that, in particular coses, the Crown will grant beach lots to per- sons not riparian proprietors. 4 L. C. Rep., p. 325, The Queen vh. Bainl S. C. Quebec ; Bowen, 0. J., Meredith, J, Clsrqy Lot ; Purging Crown Rights by Sheriff '.s sale. Certificate of Crown Land Commissioner. See OpPOstTioM h Jin d'nnntiler ; Crown Lands Certificate. Information. Held, 1. In an information by the solicitor general />ro liegina, that the ullei;- ation that the goods sought to be forfeited had been seized as having been imported into the province without the duties being paid, is insufficient, and that there must be a substantive allegation that they were imported, and brought in, in vio- lation of law. 2. That the omission of the words " against the form of the statute " is fatal. 1 L. C. Rep., p. 20, Tlie Sol. Gen. vs. Carter. S. C. Montreal ; Day, Smith, Vanfelson, J. Mails. Held, That mail carriers, conveying passengers and effects across u toll bridge erected under the 6th Geo, 4, c. 29, are not exempted by that statute from payment of tolls. 4 L. C. Rep., p. 427, Fuller vs. Jones. S. C. Mon\-;^al Day, Smith, Mondelet, J. Crown, Pension, Half pay. See Cession. " Privilege for Fire Debentures. See FiRE. " Ddsh^rance. See Curator. " Presumed grant. See Action Possessory, Fishery. " Efiects of Bankrupt's Certificate. See Bankruptcy, Certificate. CURATOR. To Vacant Succession. Held, That a curator to a vacant estate cannot be sued by a party to whom he has assigned his claim against such vacant estate, inasmuch as the curator cannot «ue himself, or be sued by his own cessionnaire. 1 L. C. Rep., p. 63, Tessler vs. Testier; S. C. Quebec; Bowen, C. J., Duval, J. Held, That an action against a party sued personally by a creditor who had obtained a judgment against him as curator to a vacant estate, and praying that the defendant be condemned to render account, and that plaintiff be paid from the CURATOR. 121 nd Oppti right, to -A I preference lots to per- vrt. BainJ. a of Crowi) VN Lanps (t the ullei;- m iniporti'J that there t in, in vio- s" is fatal, lay, Smith, OSS ii toll tatutr froiH Vloni'-.al. rtificate. I whom he tor cannot resster vs. who had that the I from the 1 I '■"t noneys of the suooession, is well brought. Sir James Stuart dissenting on the OTOund that ho should, as curator, have been made a party to the cause. 2 L. C. Rep., p. 462. Valleau vs. Oliver. In Appeal ; Stuart, C. J., (dtHtenting) ; Holland, Panet, Aylwin, J. Held, 1. That a curator to the vacant estate of an abaentee cannot bo impleaded to his quality of curator, for debts due by the absentee. 2. That the absentee must be called in by advertisement under the 94th sec- tion of the judicature not, 12th Vict., o. 38. 3 L. C. Rep., p. 431, Whitney T8. Brewtttr. S. C. Montreal, Day, Smith, Vanfelson, J. Held, 1. That in an action to account by the plaintiff as curator to a vacant vuccossion, against the defendant as being in possession of the estate, a pica is un- founded in law, which set forth that the deceased died in one of the United States, that the plaintiff was named curator without notice, and on petition of u party not a relation or creditor of the deceased, nor interested in her estate, and on the advice of parties not related, or creditors, or interested in the estate, and without any necessity being shewn for such appointment. 2. That the defendant had no right to contest the quality of the curator, having no interest, inasmuch as the plaintiff could give him a valid discharge. 6 L. C. Rep., p. 180. Sexton vs. Boston ; S. C. Montreal ; Smith, Mondelet, Ohabot, J. Held, That a curator to a vacant estate who has been ordered to deposit with the prothonotary the balance shown on the face of his account to be in his hands, before contestation of the account, or final judgment thereon, is not contraignable par corps for non-compliance with such order. 5 Jurist, p. 253, Wood vs. McLennan; S. C. Montreal; Smith, J. See Costs, Taxation of. To Absentee. Held, That the court will refuse to name a curator to an absentee to effect (as it was alleged) due service of a writ of summons, in an action to be instituted against an absentee, it appearing that a curator to the property of the absentee had been already appointed. Bowen vs. Mohon. K. B. Q. 1820. Held, In an action against a curator to an absentee : 1. That an action to ac- count lies at the instance of any of the creditors, the curator being the manda- laire of all the creditors. 2. That in such case, it is not necessary to call in the absentee by advertise- ment, but that service on the curator is sufficient. 4 L. C. Rep., p. 94, Murphi/ T8. Knapp et al. S, C. Montreal ; Day, Smith, Vanfelson, J. Held, That a curator to an absentee, who contests and defends, is personally liable to the costs of the action. 4 Jurist, p. 298, Whitney vs. Bretostei: S. C. Montreal ; Driscoll, Pelletier, J. Held, That the practice of the Superior Court in the District of Montreal has always been to call in a defendant, living out of the jurisdiction of the court, on proof that he has property within the jurisdiction of the court. Darling vs. Cowan. S. C. Montreal, 1854 ; Smith, Vanfelson, Mondelet, J. Cond. Rep., p. 105. I ' V 1 ' 122 CURATOR — CURRENCY — CUSTOMS. DiHiitRANOK — Crown. Hold, Whoro an Ofltato is olaimod d litre de (Ushiranee, or A litre de b&lardiHr by tho Crown, that tho croditorfl of tho ostato havo a right to niako good their olaims, by proooodingR for an account ugainRt tho curator of the estate, before it can be placed beyond thoir roach by a transfer to tho Crown. 9 L. C. Rep., p. 12. The Atty. Oen., pro Reg., vs. Price, Curator, and McGill 4t a/., Inter, parties, S. C. Quebec ; Meredith, J. To Substitution. Hold, That a plaintiff who has obtained a judgment against a curator to ti flubstitution, will not bo allowed to take supplomontary conelusious by petition fretting up a return of nulla bona against the defendant, e» qualili, and prayini; for judgment against defendant personally. 6 L. C. Rep., p. 485, Warner vn. Gcrrard. S. C. Montreal ; Day, Smith, Mondelot, J. To Deaf and Dumb. Hold, That a person (deaf and dumb) to whom a curator has boon appointed, cannot bind himself in a contract (on notes) while tho curatorship is in existence. 7 L. C. Rep., p. 239, Emerick vs. Paterton et al. S. C. Quebec ; Bowcii, C. J., Meredith, Badgley, J. Curator to Interdicted person. See Interdiction. CURRENCY. Held, That no silver coin of tho United States of America is legal current money in tho Province of Canada. 5 L. C. Rep., p. 337, Sauvette vs. Scott; S. C, Quebec ; Stuart, J. Currency, Legal tender. See Aliment. See Customs, Tender — Coins. I CUSTOMS. Held, That West India rum necessarily transhipped in New Brunswick on its arrival there from Jamaiea, and from thence brought to Lower Canada without being landed, is liable, under the 14th Geo. 3, o. 88, to the duty of six pence per gallon only. Scott vs. Blackwood. K. B. Q. 1809. Held, That by the words " first or sterling cost " in the Provincial statute, 53d Geo. 3, c. 11, imposing duties on the importation of certain goods, is to be under- stood the price paid for them at the place whence they were exported. Held, That upon importation of goods from a foreign country into Canada, duty may be charged, under the Customs Acts of 1847, 1849, and 1853 ; either on their value at the time of the purchase of the same, or upon the value at the time of export, on the contingency of a rise in the interval. 5 L. C. Rep., p. 235, Mofatt et al, App., Bouthillier, Resp. In Appeal; Lafontaine, C. J., Aylwiu, Duval, Caron, J. I ' ■ I CUSTOMS — CRIMINAL LAW. 123 i See thin cane, S. C. Montreal ; Cond. llcp., p. 48. That an action on the ouho niuy bu niuintainod a^ainHt a oollootor of custom!) whi> refuHUH to admit tho gooda to an oiitry, until dutioH us calculated upon the jirieu of the goodn without a doductiun of discount, have boon paid. Stuai't's Rep., (.. 215, Pattersm ft al. vs. Percioal. K. B. Q. 1820. Held, 1. In Appeal, That an action of truHpuH8 on tho cumo for a misfeasance, r.iii bo niiiihtuined against a collector of cuHtoms fur exacting u l.trger sum of iiiiiiioy for duties than the law uuthori/AS unless some reusonuble ground of excuse lor his conduct be shown, or such faet,^ be laid before the court, us will exclude every imputation of malice or wilful intent. 2. If the declaration in such action contain a statement of all the material t;ut> it will be sufficient. 3. Whore special damage is the gist of tho action, atid if it be not alleged, or it iiileged, not proved, the action nmst be dismissed. But where the law gives u 1 i-lit of action for an injury, it presumes that damages arc the conse(|uence, and ;i fdiielusioii for general damages will be sufficient. Stuart's Rep., p. 270, Pcrct- nil, App., Patterson ct ah, Resp. In Appeal, 1828. Forfeiture. ' Held, That forfeiture for not enteringor reporting goods imported from abroad, .;iii be incurred, even without such goods being landed. 3 Rev. deJur., p. 252, Ltijgttt, qui tarn, vs. Four Gold Watches ami Garrett, Clainmnt. Q. B. Montreal ; Jii'nuiiry, 1848. Tender — Coins. By the 14th Goo. 3, c. 88, duties upon goods imported into Lower Canada are ill (Sterling money of Great Britain, and the uniform standard of value at which t'nivign coins are to be received in payment, is their contents in pure silver at 5s. (id. sterling per ounce. Held, 1. A tender of the Spanish dollar at 4s. Gd. sterling, the value fixed by the Provincial Statute, 48th Geo. 3, c. 8, for the payment of all debts and demands, is not a legal tender in payment of duties. 2. The value of the Spanish dollar in sterling is 4s. 4d. Stuart's Rep., p. 305, . MuEDER, Bail on charge of. See " Habeas Corpus." Nuisance. Held, 1. That in the case submitted, (where the defendant was convicted for A nuisance for setting up a manufactory for animal manures) evidence to prove the advantage accruing, and likely to accrue, from the sale and use of the manure, could not be admitted, inasmuch as it is settled that the circumstance that the thing complained of furnishes, upon the whole, a greater convenience to the public than it takes away, is no answer to an indictment for nuisance. 2. That the rule sic utere t'M, ut alienum non lasdas, is a familiar maxim of the common law of England, as well as a maxim of the civil law. 10 L. C. Rep,, p. 117, Regina vs. Bruce. Q. B. Crown side ; Aylwin, J. Perjury. Hold, That where a true bill for perjury is found against a defendant, this is no reason for suspending the civil suit. 3 Rev. de Jur., p. 364, Fortier vs. Mercicr, 1847. Held, That on an indictment for perjury, the defendant must submit to the jurisdiction of the court before he can be allowed to plead. 10 L. C. Rep., [). 45, Q. B. Crown side; Regina vs. Maxwell ; Duval, J, Rape. Held, That a prisoner on a charge of felony (rape) being tried and convicted only of an attempt to commit such felony, cannot be tried for any other offence founded upon the facts upon which the verdict is given ; and a motion for setting aside the verdict of guilty, and for empannelling a new jury will not be granted. !l L. C. Rep., p. 196, The Queen vs. Webster. Q. B. Crown side ; Lafontaine, C. J., dissenting; Aylwin, Duval, Caron, J. Registry Ordinance, Violation op. Held, That the punishment prescribed by the 4th Vict., c. 30, sect. 1, is eumulative, and that sentence of imprisonment and fine will be pronounced on conviction had against defendant. 4 Jurist, p. 276, Regina vs. Palliser. Q. B. Crown Side ; Lafontaine, C. J., Aylwin, Duval, J. ; Mondelet, J., dissenting. DAMAGES. Against Agent. Held, That defendant was liable in an action of damages personally, for hav- ing, as agent or attorney of another party, caused an illegal seizure to be made of plaintiff's property, by a saisie arrU before judgment issued on the ajSSdavit of now defendant. 8 L. C. Rep., p. 177, Warren vs. Noad. S. C. Q.; Meredith, J. If- m^\ 3« ' 1 I j . M' ;( . i nHMl 128 DAMAGES. Animals. Hold, That where a defendant designedly took down his own fence, and hia neighbor's cattle strayed into his field, and he seized and detained them, that the seizure being fraudulent, malicious and illegal, an action of damages will be maintained. Turcotte vs. Basin. K. B. Q. 1813. Held, That an action of damages lies, for exciting a dog to bite the plaintiff's horse, whereby the horse was injured, and plaintiff's cart broken. Davidson vs. Cole. K. B. Q. 1821. Held, That where a defendant hired a horse to go to a certain place, and went farther, and the horse died on his hands, that the onus of proving that the horse was not in a condition to make the trip lay on the defendant. Judgment for value of tbj horse. Desautels vs. Perrault. 1849, Gond. Rep., p. 60. Held, That a person who keeps a dangerous dog, is liable in damages, in case a passer-by be bitten, even although walking off the road and near the plaintiff's fcarn. Damages £50. Dandurand vs. Pinsoniuxult. Cond. Rep., p. 80. See post Damages, Exemplary. Arrest — Attachment. Held, That where a minor offering goods for sale was arrested by the defendan under the mistaken belief that the goods were his stolen property, the defendant is liable in damages in an action by the father, although not actuated by malice, and is not entitled to notice under the 14th and 15th Vict., c. 54. 1, Jurist, p. 237, Wilson vs. Morris. S. C. Montreal ; Day, Smith, Chabot, J. Held, In an action of damages, for illegally issuing a writ of saisie arrtt before judgment, that the court will give only nominal damages where there were sus- picious circumstances, not amounting to a complete justification of the process. 2 Jurist, p. 120, Deloge dit Pariseaii vs. Rochon. S. C. Montreal; Day, J. Held, That in an action for false imprisonment, the admission by defendant, in one of his pleas, that he caused the arrest, is sufficient, although a general issue is fyled ; and that plaintiff is thereby relieved from proving the arrest. 5 Jurist, p. 50, Monty vs. Ruiter. S. C. Montreal ; Berthelot, J. Held, That words used by a defendant, sued for false arrest, in giving tlie party in charge, cannot also be made a ground of damages for slander. McCann vs. Benjamin. S. C. Montreal; Cond. Rep., p. 13. See post Malicious Arrest. Assault. Held, That a plaintiff may, for an assault, proceed against the defendant, by action, and by an indictment. Dngcnay vs. Hunter, K. B. Q. 1812. Held, 1. In an action of damages for assault and battery, that words in the declaration charging the defendant \?ith a design to do grievous bodily harm to plaintiff, do not necessarily constitute an accusation of felony. 2. That even if the charge amounted to a felony, the plaintiff may sue in dam- ages without first prosecuting criminally. 4 L. C. Rep., p. 160, Lamothe vs. Chevalier et al. In Appeal ; Rolland, Panet, Aylwin, J. ■! I 1 ^68, m case a DAMAGES. Assault and Slander. 129 Held, That a party may, by the same action, claim damages for slander and for assault. In this case the plaintiff alleged that the defendant calumniated him, ' et joignant les coups aux paroles a assailli, battu," &c. 6 L. C. Rep., p. 185, Paquette, App., GlohensJei, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval. Caron, J. Contract, Breach of. Held, That where a third person promises to one of the parties to a contract, that he will assume it, that promise can only be binding on him as to the person to whom it was made, and a contract to deliver to certain persons, during a fixed period, all the malt they may require for their brewery, can only be binding io long as malt mSiy be required for the brewery, and therefore the insolvency of such persons, and their ceasing to employ the brewery, terminates the contract, and no damages can be claimed on the ground of subsequent non-performance. Oaklei/ vs. Morrogh et al. Fyke's Rep., p. 74, Sewell, C. J. 1810. Held, That if a man contracts to do a thing, and receives money in advance, and docs not do it, he who has paid the money may either affirm the contract, and institute an action of damages for non-performance, or he may disaffirm it, aud sue for money had and received. Brunei vs. Lee. K. B. Quebec, 1812. Held, That an action on a personal contract (for building a wharf) will be dismissed, it appearing that the contract was made with a third party, and that the defendants were merely a committee to superintend the work. Mandigo vs. Iloyle et al. S. C. Montreal; Cond. Rep., p. 4. Exemplary. Held, In an action of damages in consequence of plaintiff's child being severely bitten by a dog, which was kept as a fighting dog, and suffered to run unmuzzled, that exemplary damages will be given. 2 Jurist, p. 96, Falardeau vs. Couture. S. C. Montreal ; Mondelet, J. From falling Beam. Held, 1. That a contractor is liable to a person passing through a public street, for injuries sustained by the falling upon him of a beam from a building in pro- cess of erection by such contractor. 2. That the onus is upon the contractor, to prove that such injuries were not caused by negligence. .3. That a builder is liable for the negligence of his workmen and other persons under his control, in and about the erection of a building. Holmes vs. McNevin. S. C. Montreal ; Badgley, J. Father, Against. 5 Jurist, p. 271, Held, That where a father bound his son as apprentice to plaintiff for five years, representing him to be sixteen years of age, he being really over sixteen, he I \ I 1. (, 180 DAMAGES. H is liable in damages, the son having left plaintiff's service on attaining his majority. 1 Jurist, p. 10, Rke vs. Coo. S, C. Montreal ; Day, Smith, Badg- ley, J. See TuTELLE, Tutor. Joint am> Several. Held, That if two persons arrest a third, both are answerable soUdairemcnt'm damages, Pouliot vs. Stanley. K. B. Q. 1813. Held, In an action iV injure for torts committed by several persons, each and every of the perpetrators may be sued jointly and severally. A remise by reconciliation maybe proved by witnesses. Peltier va. Minville. K. B. Q. 1818. Held, That in an action against several persons for an alleged voie defait in driving the plaintiff from his house, it is not necessary, in order to obtain a condemnation in damages against the defendants, jointly and severally, to prove specifically the part taken by each, but that their participation might be inferred from the circumstances proved in the case. 10 L. C. Rep., p. 399, Nianentsiasa, App. Akwirente, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Mondelct, Bruneau, J. Same case, 4 Jurist, p. 367. ^ee Pleading, Joinder. Judge Against. Held, That an action of damages will not lie against a judge for any act done by him within the extent of his jurisdiction. Stuart's Rep., p. 292, Gugy vs, Kerr. K. B. Q. 1828. Held, That the court has no jurisdiction, in an action against a judge of tlie Vice- Admiralty, to recover back money paid to him as fees in a suit determiued in that court, but the remedy is by appeal to the High Court of Admiralty in England, or to the king in his privy council. Semlle, That the right of the judge of Vice- Admiralty to exact fees is of immemorial usage, introduced into this country after the conquest. Stuart's Rep., p. 341, WUson vs. Kerr. K. B. Q. 1828. In an action of trespass for assault and imprisonment against the provin- cial judge of the inferior district of St. Francis, for issuing process of attach- ment for contempt, against the editor and printer of a public newspaper for pub- lishing certain papers : Held, That as the acts complained of were performed by the judge in his judicial capacity, the court could not take cognizance of them, and therefore had no jurisdiction. Stuart's Rep., p. 276, Diclcerson vs. Fletcher. K. B. Three Rivers j 1828. Justification. Held, That in an action against the captain of a ship jhartered by the East. [ndia Company, for an assault and false imprisonment, a justification, on account of mutinous, disobedient, and disorderly behavior, will be sustained. Stuart's Rep., p. 518, Coldstream vs. ITall. Vice-Admiralty Court ; Kerr, J., 1832. DAMAGES. 131 Leqal Riqht, Exercise of. Held, 1. That no responsibility in damages is incurred by the exercise of an absolute right ; that such is the right of a lessor to proceed by saisie gagerie iifainst his tenant; and '' - ' such proceedings cannot give rise to damages, what- ever may have been the landlord's motive, and however rigorously such right may have been exercised. 2. In the court below, a verdict was given against the landlord in damages, and a judgment entered thereon, and the defendant's motion for a new trial, and. also a motion :for judgment non obstante veredicto dismissed. In Appeal ; Judgment reversed, and action below dismissed with costs. 1 Jurist, p. G9, David, App., Thomas, llesp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Caron, J. Libel." Held, That newspaper proprietors arc liable in damages to an unmarried woman, for inserting in their paper a notice sent to them, of the birth of children of plaintiff, describing her as a married woman, although there is no evidence of malice or knowledge on the part of the defendant, that the notice was untrue, and although an apology, not communicated to the plaintiff, was made, and a reward offered for the discovery of the party sending such notice. 6 L. C. Rep.^ p. 410, Stames vs. Kinnear et al. S. C. Montreal ; Day, Smith, Mondelet, J. Same case; S. C. Montreal; Cond. Rep., p. 45. Held, That an ao co-partners guilty of tho inaliciouH act;^ complained of, and could not bo brought against a co-partnorHhip for words spoken by one or more of tho co-partners, and, further, because tho causes of action were insufficiently libelled, inasmuch as it was alleged that tho defendants falsely and maliciously did composo and write in a certain book, kept in tho office of tho defendants, &o., a certain false, scandalous, and malicious libel, " to tho effect, " that tho said plaintiff was not reliable, or that the plaintiff was insolvent, or *' words to that effect, but as tho defendants have refused to lot the plaintiff sci " tho book, he is unable to state tho exact words therein written." Held, That the exceptions ware well founded, and that tho action must be dismissed, with costs, as to tho two defendants' pleading. 12 L. C. Hop., p. 345, McDonald vs. Dun et al, S. C. Montreal ; Smith, J. Held, That tho allegation of fraud in a plea is not libellous, and such allegation will not support an action for libel, unless it be also alleged that tho plea com- plained of was merely used to cover tho libellous matter which was irrelevant to tho issue. 12 L. C. Rep., p. 390, Fitzsimmons vs. Bi/rne et nx. S. C. Quebec ; Stuart, J. Damaoes, Action by father as natural tutor. See Tutelle. Damages by Le.see. See Landlord and Tenant. — Voio do Fait. Damaoes Liquidated. Sec Penalty, Penal Statute. Damages, for Non-dolivery of goods destroyed by Vis Major. See Sale, Delivery, Risk. Damages against Captain of Vessel. See Ships and Shipping. Damages for words spoken by witness. See Evidence, Witness. Damages for words spoken by attorney. ^ See Damages, Slander. Damages against Railway Company. Sec Railway Co., Damages. Damages for Slander. See Damages, Slander. Damages against Corporation. ^S'ee Corporation, Damages. Damages by Bill being Protested. See Bills and Notes, Damages. Damages set off in Compensation. ing tho suit. Salbert vs. Chcuinard. K, B. Q. 1812. Death op Ancestor. See Pleading, Declaration. See also Appeal. Dyinq Declaration. See Criminal Law, Evidence. Death of Partner. See Partnership, Death. " See Husband and Wife. " of Party to Suit. See Peremption. " Railway vs. Damages. See Cession, Signification. DECLARAilON. See Pleadings. " Op T. S. See Executor, Tiers Saisi. I I I I PORATION, DECONFITURE. Its Effects on Contracts. See Bills and Notes when due. " Fraud. " Doctor op Medicine. " Prescription. " Dower. DOCKET. Adjudicataire, Title of. Held, That where a sale of property is stopped by the sheriff, the last and the highest bidder does not become the adjudicataire, or acquire any right to the pro- perty put up for sale, although the sheriff may have acted illegally in discontinu- ing the sale. Nor can there be any sale, unless the bidding has been accepted by the knocking down of the hammer, or some act equivalent to it. Nor can a defendant by opposition stop the sale of his property, upon the ground that the sum bid was not near the value of the property, unless the plaintiff and the I \ \ • ii 1 p' '. i 1 W^ * i ' 1 1 ,1 188 DECRET. I ^ several opposants a Jin de conservcr consent thereto. Baker vs. Young, and Blackwood, Intervening, and divers, Opps. Pykc's Rep., p. 26. Sewell, C. J., 1810. Held, That if a sheriff's sale is interrupted, and no adjudication is made, the contract of sale is imperfect, and the last bidder is not an adjudicataire. Baker vs. Young. K. B. Q. 1810. Held, That an adjudicataire may, under some circumstances, be permitted to retain the capital of a dower not yet open. Roberts vs. Lavaux. K. B. Q. 1815. Held, That a tenant who has paid rent to his landlord in advance, will be condemned to pay to the adjudicataire if the property is adjudicated during the lease and the engagement of the tenant. Ilart vs. Bourgette. Bowen, J. ; K. B. Q. Inferior Term, 184G. Held, 1. That the title to an at^'utZtcatotVc at sheriff's sale, granted subsequent to the adjudication, has a retroactive effect, and confers the right of property and all the advantages resulting therefrom, from the day of adjudication. 2. That there was sufficient proof of the use and occupation of the property by the respondent, to warrant a judgment in favor of the adjudicataire founded on such use and occupation. 11 L. C. Rep., p. 449, Laterriere, App., Houdc et ah, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. Held, That the adjudication par dicrU transfers the property ijiso Jure, and that the adjudicataire is entitled to the rents from the date of the adjudication. 4 Jurist, p. 1, Harwood vs. Shaw. S. C. Montreal ; Badgley, J. Adjudication — Writ op Possession. Held, That to obtain an order for a writ of possession by an adjudicataire, there must be a return of the sheriff that he has not, and cannot put him in posses- sion. Reinhart vs. Haussenian. K. B. Q. 1821. Held, That a writ of possession will be granted to an adjudicataire against a defendant who refuses to give up possession. 1 Jurist, p. 1 5, Lewis vs. O'Neil, and Jlolhrook, Adjud. S. C. Montreal ; Day, Smith, Badgley, J. Held, That the adjudicataire, when a year has elapsed, is entitled to be put in possession by a petitory action against defendant, and not by writ of posses- sion. 4 Jurist, p. 8, Hart vs. McNeil. S. C. Sherbrooke ; Day, Short, Caron, J. Decret, Effect of. t Held, That a sale by decret does not affect the property of a third person who has been publicly in possession, and remained in possession of such property from the seizure to the adjudication. Wilson vs. Coldwell. K. B. Q. 1813. DflFAUT DE CONTENANCB. Held, That the d6/aut de contenance, in a real property sold by the sheriff, entitles the adjudicataire to demand a proportionate reduction of the price, but not the nullity of the adjudication. 2 Rev. de Jur., p. 57, Grey vs. Todd et al K. B. Q. 180^. j ; DECRET. 139 Held, 1. That an action by an aJjudicataire of real property against a party plaintiff jwursuivant h lUcret to recover tlic value of a deficiency in the land, cannot be brought de piano, until such deficiency shall have been established in au action to reform the sheriff's title granted to the adjudicatairc, and to correct the description of the quantity of land, to which action the pursuioant and the msi must be parties. 2. That until such deficiency is so ascertained, the sheriff 's title is a bar to any action against the imrsuivant le d&cret as having received the proceeds of the sale, and is conclusive evidence, as between the plaintiff and defendant, until it is legally set aside and reformed. 9 L. C. Hep., p. 108, Dcsjardins vs. La Banque (h Peuplc. S. C. Montreal ; Smith, J. Same case 3 Jurist, p. 75. In November, 1853, the plaintiff became aS^ee Contract, Discharge. " do. Novation. " do. Payment. " Pleading, Payment. " do. Compensation. A I It o I • DIXMES. See Tithes. DOMICILE. Held, in the case of a Scotchman, who abandoned his original domicile in Scot- land, and established a new domicile in Jamaica, and finally gave it up, and left Jamaica with the intention of returning to Scotland, but died before reaching it, that his domicile at the time of his death was in Scotland. 3 Jurist, p. 127, Ferguson vs. Paw et al. Court of Sessions, Edinburgh j Lord Ardmillan. Domicile. See Retrait Lionaoer. Domicile op Husband. See Action Partaqb. See Sheriff, Bailiff. " Dower. Op Partners. Held, That plainti^, being merchants and partners, may describe themselves as being of the place where they carry on their business. 6 L. C. Rep., p. 177, • { i ■ ^, , :, , WIB ri ll^'P^f 4 t' ■ ■ 1 1 r 144 DONATION. Janvrin et ul. vs. Lemesurier et al. S. C. Quebec; Bowen, C. J.; Morin, Badgley, J.. Held, The plaintiff, a merchant, described himself as of the city of Quebec, where he had his office, but resided at La Canardiire within a mile and a half of Quebec ; exception h la forme maintained, and action dismissed. 6 L. C. Rep., p. 178, Dinning vs. Bell et ul. . S. C. Quebec ; Bowen, C. J., Meredith, Badgley, J. Held. That the true domicile of a debtor is at his place where he reside? and -does his business, although his family resides elsewhere. 1 Jurist, p. 167, Kay. App., vs. Simard, Resp. S. C. Montreal; Day, Mondelet, Chabot, J. Election of. See Opposition a fin d'annulleb. See Attorney, Domicile. Service at. Held, That service at an elected domicile is valid, if by the contract which oonstitutes the ground of action, it is stipulated that such service shall be suf- ficient. Baldwin vs. Fitzgihbon. K. B. Q. Held, That in an action brought at Montreal, one defendant residing there, and one in Quebec, service at their respective domiciles is sufficient under the 12th Vict,, c. 38, sect. 14. 6 L. C. Rep., p. 413, The City Bank vs. jPmter ton et al. S. C. Montreal ; Day, Vanfelson, Mondelet, J. Held, That a writ and declaration are not legally served by leaving copies •thereof with a servant girl, at the boarding house where defendant lived. 6 L.C. Rep., p. 477. The Chatnplain and St. L. R. R. vs. Russell. S. C. Montreal : Day, Vanfelson, Mondelet, J. Held, That an action en separation de Mens, between parties married and liaving their domicile in the district of Three Rivers, cannot be brought in the -district of Montreal, but must be brought in the district of Three Rivers. 9 L, •C. Rep., p. 344, Kennedy vs. Bedard. S. C. Montreal ; Berthelot, J. Same case, 3 Jurist, p. 284. Held, That an action of damages by landlord against the defendants, co-part- ners, for breach of covenants in lease, was well served at the place of business of the firm, and was a partnership liability. Berthelet vs. Galarneau et a\. S. C. Montreal ; Cond. Rep., p. 109. Domicile. See Bills and Notes. " See Husband and Wife, Authorization, Domicile. " of Minors, conflict as to. ^ee Tutelle, conflict as to Tutors. DONATION. Acceptance of. Held, When a donation of real estate was made to a minor accepting by a stranger, and the donee and his wife (still minors) retroceded the property of the 4onor, for a sum of money payable by instalments, such retrocession was equiva- lent to a valid acceptance of the donation, and the donor is bound to pay the instal- ii DONATION. 145 mcnta due. 6 L. C. Rep., p. 12, Judd, App., vs. Eshj et nx., Rcsp. In Appeal ; Lafontaino, C. J. Aylwin, Duval, Caron, J. Held, That on a donation by the father and mother of the plaintiff, to the defendant, plaintiff's brother, charged with a payment of a sum of money to plaintiff, an action lies in favor of the tiers gratifii, although not a party to the donation. Durand vs. Durand. Holland, C. J . ; Day, Smith, J. ; 1849, Cond. Rep., p. 59. Debt of Donob. Held, That a donee bound to pay the debts of the donor, may be condemned to pay the amount of a judgment rendered against the vacant estate of the donor, posterior in date to the donation, on the mere production of such judgment, tf-l without its being necessary to prove that the debt existed prior to the pasi W .^ of the donation, otherwise than by what is stated in the judgment. Meredith, J., held, that the debt for which the judgment was rendered, having no date certain, and there being «o proof of its existence prior to the donation, the donee was not liable, and the action ought to be dismissed. 5 L. C. Ref)., p. 367, Aylwin et al vs. Alsopp et al. S. C. Quebec ; Bowcn, C. J., Morin, Meredith, J. Delivery. Held, That a donation of movables without tradition is a nullity. Gauvin TS. Caron. K. B. Q, 1821. HeW, That a donation of movables made by a husband to his wife, by con- tract of marriage, does not require actual delivery. 5 L. C. Rep., p. 420, \yiute vs. Atkins, and Smit?i et al., 0pp. S. C. Quebec. ; Bowen, C. J., Meredith, Morin, J. Discharge op Rente. The plaintiff made a donation of real and personal estate to his tjon, subject to a rente viagere, and afterwards made another donation to the same donee, for life of other real property, subject also to a 'rente viagere, with a clause that the donation should avail to the donee's wife, so long as she remained a widow, but no longer ; and in the latter donation, the donor gave a discharge for all rents due and to become due, under the first ( onation. The donee having died, and his widow remarried : Held, 1. That the donations must be read together, and that the second having b me void, the discharge contained in it did not take away the plain- tiff's rccouioo for the rente stipulated by the first donation.. 2. That an evocation will be allowed in a suit for a rente viagere brought in a Comimissioners' Court. 9 L. C. Rep., p. 56, DaJphi dit Pariseau vs. Brodeur etvx. S. C. Montreal ; Mondelet, J. Droit d'Habitation. Held, That a stipulation in a donation of a right of habitation on a property to he acquired by the donee, is only valid when granted by an acte subsequent to ■ \^ iiti ! I. I ' \ 1 i '• 146 DONATION. such acquisition. 1 Jurist, p. 84, Verdon vs. Groulx. S. C. Montreal ; Day, Smith, Chabot, J. Insinuation op. Held, That a donation in which the charges exceed the value of the property, is not null for want of insinuation. 3 Jurist, p. 183, Rochon et al. vs. Duchent ct ux. S. C. Montreal ; Badglcy, J. Held, That a hypothequo resulting from a donation entre vifa of a rente ct peruion viaglre specially secured on an immovable, will be declared posterior to the hi/potheque resulting from an obligation subsequently made by the donor affecting the same immovable; it not appearing that the donation had been insinuated before the passing of the obligation. 2 Bev. de Jur., p. 299, Ex- parte The Respective Officers of Ordinance, Opps. Q. B. Quebec, 1847. . See Donation, Resiliation of Ant. LEGITIME. Donee condemned to give ligitime. Pr^vost^, No. 33 ; Confirmed ; Cons. Sup., No. 26. Held, That a donation inter vivos is not subject to reduction by reason of the Ugitime, if the donor haa subsequently disposed of his estate by will. 8 L. C. Rep., p. 317, Quentin dit Dubois, App., Gerard et al., Resp. In Appeal; L^ontaine, C. J., Aylwin, Duval, Caron, J. Same case, 2 Jurist, p. 141. Prohibition from Selling. Held, That a deed of donation, from father and mother to a son, containing a clause " that this donation is made upon the express condition that the lands " given shall remain propres to the donee, and to his immediate heirs, de son " c6t6 et htoc without the power of either selling or mortgaging the same," is obli- gatory, and that, therefore, hypotheques created by the donee are null. 4 L. C, Rep., p. 215, Fa/ard\a. Bellanger. S. C. Quebec; Duval, Meredith, Caron, J. Resiliation, Revocation. Held,. That .i donation onereusc, containing charges equal to the value of the immovable given, cannot be rescinded by reason of the subsequent birth of a child, such donation being in the nature of a sale. 2 L. C. Rep., p. 177i Sirois vs. Michaud. S. C. Quebec ; Duval, Meredith, J. Held, That a donation can legally and rightfully be revoked and annulled before acceptance. 6 L. C Rep., p. 51, Lalonde, App., vs. Martin, Resp. S. C. Mont- real ; Day, Smith, Mondelet, J. Held, 1. That the revocation of a donation onireme does not extinguish Tiypotheques created upon the land, by the donee. 2. That such donations do not require to be insinuated, and that the absence of registration cannot be invoked by the donor or his ay ant cause, as against a creditor of the donee. 2 Jurist, p. 90, Lafleur vs. Girard. S. C. Montreal ; Smith, Vanfelson, Mondelet, J. mM DOWER. 147 Held, 1. That the resiliation of a donation foringratUtidec&nuoi be demanded against a third person cessionnaire of the donee, although he may have assumed the payment of the charges in the donation. 2. That non-payment of arrears of a rente viagire, although not a cause of resiliation under the French code, is so under the law of Lower Canada, but cannot be demanded unless all the parties to the donation are put into the cause. 3 Jurist, p. 307, Martin vs. Martin. S. C. Montreal ; Berthelot, J. Held, That constant and habitual intoxication is a good cause for the resilia- tion of a donation by a father to his son. 2 Rev. de Jur., p. 60, Couture vs. Begin. K. B. Q. 1819. Held, That a donation may be resiliated for non-payment of an annuity for which the donor and donee have stipulated. Migni vs. Migni. K. B. Q. 1811. For dimence. Prdvostd, No. 22 ; Confirmed in Appeal Cons. Sup., No. 17. For non compliance with charges in. lb., No. 104, Confirmed in Appeal ; Cons. Sup., No. 52. Donation set aside for non-compliance with charges. Pr^vostd, No. 104. Con- firmed in Appeal ; Cons. Sup., No. 52. To A Priest. Held, That a donation to a priest by his pinitente, h la charge, that he will say 2600 masses for the repose of her soul, is null and void ah initio. Foumier vs. Poulin. K. B. Q. 1817. Donation in Fraud of Donors' Creditors. See Fraud, Donation. Donation, Fraud in, See Fraud, Donation. Donation, Where it gives rise to lods et ventes, See Seigniorial Riqhts, Lods et Ventes. Donation. See Marriage Donation. miin mi DOWER. . Adultery. Held, That a widow, guilty of adultery during the first year of her widowhood will be deprived of her dower, but a judgment to that eflfect as to the rents, issues and profits will be prospective only. 7 L. C. Rep., p. 391, J. vs. R. S. C. Quebec; Bowen, C. J., Meredith, Morin, J. See Husband & Wife, Adultery. Generally. Held, That an action en dilivrance de douaire coutumier is an action ofpartage, and all the co-heirs must, therefore, be parties to the suit. Turcot vs. Drouin, K. B. Q. 1817. Held, That a widow, condemned as commune en biens, to pay a debt of the community, may claim her dower in preference to the creditors of the community, and without renouncing such community, on the principle that she is only bound for debts to the extent she benefits from such community. 6 L. C. Rep., p. 37, Delisk vs. Richard, and Richard, 0pp. S. C. Quebec; Bowen, Meredith, Badgley, J. hf|,. ■(, 1 . ' ■■' 1 ^^H^H[,) is my\^^ - ! 1 . ' ^ 1 \ 1 I ■ 1 1 W i H 148 DOWER. Held, That under the 4th Vict., c. 30, sect. 27, the dower to which children arc entitled uttaclit's: 1. To landH, tcnoiucnta, &o., in the possession of their father at the time of his decease. 2. To those which have been in the possession of the father, and in relation to which the mother has not barred or released her dower, under the 35th section oi' the act above cited. 11 L. C. Rep., p. 344, Adams vs. O'Cunnell, and 0' Cou- ncil cs qttal., 0pp. S. 0. Quebec; Stuart, J. Held, 1. That dower in a marriage contract stipulated to be" such as is established by the Laws of Lower Canada," is legal and customary duwer; not douaircj^r^ji.e. 2. That registration of such contract is not necessary, to preserve the rights of the widow and children on real estate subject to such dower. Queri/, Is registration of " hypothecary rights " which are not evidenced by writing, post-iblc under the Registry Ordinance? 4 Jurist, p. 311, Simtet al. VB. Evans and divers, 0pp. S. C. Montreal ; Monk, J. Held, 1. That signification of an original instead of a coj)>/ of a writ of sum mons is sufficient. 2. That tlirec of the plaintiffs having done acts of heirship, their renunciation of their father's succession will be set aside, and they will not be allowed to claim their share in the customary dower created by their father. 3. That the husband's insolvency, at the date of his marriage, does not prevent real estate then held by him from being subject to dower. 4. That the dower of children of a second marriage consists only in tho/ourth part of the immovables acquired during a former communauti; although by u portage of such communauti, made after the second marriage, the husband became proprietor of the whole of the immovables charged with the dower ; and that the^«<;'^/^e has no retroactive effect so as to change the amount of the dower. 5. That the 279th Article of the Custom of Paris is not applicable to the custom- ary dower of the second wife, or of the children of the second marriage. G. That reunion to the domain, or a voluntary. retrocession made by reason o the clauses of the original deed of concession not having been complied with, docs not purge the immovable, so reunited to the domain, from the customary dower, with which it was charged. 7. That municipal and other annual taxes, arc charges or burdens on tlic enjoyment and possession of the immovable, and the tiers detenteur cannot demand to be reimbursed for these charges during his occupation. 8. That the defendant having denied the plaintiff's right of action, is liable to costs. 5 Jurist, p. 128, Filion \a. BeBeaujeu. S.C.Montreal; Berthclot, J. Held, That an acquet, the price of which was paid out of the community, is never- theless subject to the douairc of the wife who is not held liable for ameliorations done on the immovable, by the community. 2 Rev. dc Jur., p. 210, In re Mar- tigny, a bankrupt, and Archambault, 0pp. In Bankruptcy, Montreal, 1846, Valli^res de St. R^al presiding in appeal. Held, That a douaSriire of a seigniory en tisu/ruit, cannot maintain an action for the recommendation nominak auxpri^rcs, Hamseman vs. Panet, K. B. Q' 1816. filial DOWER. 149 Held, Tlmt the children who nrc proprietors oF nn cwtate on which the dower oC their mother is charged, cannot maintain an action to recover the possession of that estate, from a tiers lUtrnteitr who holds under title derived from her, so loug as she survives. Lemieux \s, Dlonnc. K. B. Q. 1817. OiN SoccAciE Lands. Held, 1. That before the Imperial Act, G Geo. 4, c. 59, commonly called the Canada Tenures Act, became law in Lower Canada, the customary dower of the Custom of Paris was claimable on lands granted and held in free and commou. soccime tenure. 2. That by the Imperial Act, the law of England, as to dower, descent, and alienation was introduced into Lower Canada, as an incident of the tenure of lands held in free and common soccago, .3. That the defendant, Sophia Blodget, being married to .Joseph Wilcox on the .^Ist .January, 182.5, before the above act became law, while the said Joseph Wilcox was proprietor of lands in Lower Canada, held by the tenure of free and common soccago, was entitled to claim, on the lands in (question, lier customary do-ver under t.'ie Custom of Paris. 8 Tj. C. Rep., p. iM, Wikox ct al. vs. Wilco.r. In Appeal ; Lafoiitaine, C. J., Duval, and Caron, J. ; Aylwin, J., dissenting. See same case 2 Jurist, p. 1 . See Appendix to the second volume of the Jurist for opinions of Chief .Justice Hay, Sir William Grant, and the opinions of the various Judges in relation to the matters involved in this case. Prefix. Held, That a widow, upon her marriage, may maintain an action against the heirs of her deceased husband for her doiKiire profit, although she has ro-niarried, but she is bound to give security as provided by the 2G4th Article of the Custom. EIci dit ./nUeii vs. Touchctfe. K. B. Q. 1821. Held, That in an hypothecary action for domilrc jyrefx, a plea which sets up that the plaintiff' is bound to urge his recourso against the last purchaser, and so on up to the first, is bad, and that this exception can only be invoked as to customary dower. 1 Jurist, p. 1()8, Beiioit vs. Tanguai/, S. C. Montreal ; Day, Mondelct, Chabot, J. ' Held, Tliat an ajndicatalrc of real property may be allowed to retain in his hands the capital of a douaire prifix which is charged thereon, but which is not open, unless the plaintiff, or some of the opposants, are mortgagee creditors for debts contracted by the husband prior to his marriage, in wliich case, as the ddcret purges the dower, he cannot retain it. Roberts vs. Lavaux. K. B. Q. 1810. Held, That an action by a ccssionnaire of a douaire prefix, where the doiuuriere had renounced the succession, after the cession, but before action brought, will be maintained. Lcfehorexs. Demcrs. S. C. Montreal, 1850; Cond. Hep., p. 56. When Open. Held, That the wife's dower becomes open by the husband's death only, unless there be a formal stipulation to the contrary, and an express renunciation to the Ml • i:f I ' I HP? ;• ,''; liU 160 ENQUETE. dispositions of the Custom of Paris. 1 Rev. do Jur., p. 122, Murder vs. Jilanchd Bigndl vs. Ilmderaon. Q. B. Quobco, 1844 ; Stuart, C. J., Rolland, Bowon J. Fanot, Bddard, J., dissenting. Douairc coulumier is excluded by a clauso of amoublissomcnt in a niarrin''o contract. 1 L. C. Rep., \,. 25, TouUsant el ul. vs. Lchlanc. S. 0. Quebec. Dower, Registration of. See Registration, rights of married women. Dower, Registration of. See Reoistration. EASEMENT. See Servitude. ELECTION. Bribery in. See Bills and Notes, Fraud. Of 3Iunicipal Officers. See Corporation, Election. ENQUETE. Held, Tliat the Court will not compel a party to proceed to enquile durinp the weekly sessions of the Court. 1 L. C. Rep., p. 475, Qucsnel vs. Donegani S. C. Montreal ; Day, Smith, Vanfelson, J. Held, That in the absence of any rule of practice or order confining enquetc days in term to ex ^mrte cases, the Court has no power, under the judicature act, (12 Vict., c. 38) to prevent a party from proceeding with a contested case during enquitc days in term. 2 L. C. Rep., p. 239, La Banque du Paiple vs. Roy ct ah S. C. Montreal ; Day, Smith, Mondelet, J. Held, That where an objection had been taken at enquite and maintained, and the opposing counsel has proceeded with the examination of the witness, and the deposition has been closed without reserve, a motion to revise the ruling at enqnite will not be entertained by the Court. 3 L. C. Rep., p. 89, Wrigley ys. Tucker. S. C. Montreal ; Day, Mondelet, J. Held, That the Court will not, in a particular case, order that a defendant proceed with his cnquetc from day to day until it bo completed, enquite being governed by rules applicable to all cases. 4 L. C. Rep., p. 46, Brown vs. Gugy, S. C. Quebec; Bowcn, C. J., Duval, Meredith, J. In this case plaintiff declared upon a donation of a certain date, and at the tnquete proved another of a different date ; before the cause was heard he had moved to amend his declaration by inserting the true date by consent, and set down his cause for hearing, and contended that the law would allow him to use the eiiquete taken in a prior suit upon the same cause of action. Held, That when a cause has been out of court by a. peremption d' instance if an enquete has been taken, it is allowed to subsist, and may bo used in a second action, founded upon the same grounds of action, and that this appeared to be reasoiiablc, but that the Court was not aware of any authorities which would justify the reception of an enquete in a subsequent cause under other circumstan- ces. Leclere vs. i%. K. B. Q. 1818. I' I !i ENQUETE. 161 Hold, That after cnqnite. closed, no witncsH can bo examined except as to now factM. Liiterriire vs. Simon. K. IJ. Q. 1821. IIi'lJ, That no papers can bo produced in cvidonco after enqnfte closed. li" a party means, therefore, to interroj^ate his opponent on receipts or other papers, ho must fylo them before ho moves for loavo to examine on falls ct articles. Ryan vs. Chiffers. K. B. Q. 1821. Held, That a judge in chambers has no power to restrict the evidence to proof oi' choncjugie, set up in a special answer to a ploa, when thcjnscription for enqutle is general, and there arc several issues. 4 L. C. Hep., p. 4^'\. Brush et al. vs. Wilson et al. Held, 1. That a witness about to leave the Province, can, under the 25tli Geo. ;{, c. 2, sect. 12, bo examined before the return of the action. '2. That irregularities, in themselves fatal, are waived, if uncomplained of for u year. Query? As to revising judgments in vacation, not complained of in the Court below. 10 L. C. Rep., p. 458, Snpjjlc, App, Kcnnrdi/, Ilcsp. In Appeal; Lufontaine, C. J., Aylwin, Duval, Meredith, J. ; luondelet, J., dissenting. Held, That a defendant is not obli-^cd to proceed with liis enquHe in the nbseneo of certain exhibits of plaiutifts attached to a commi.'^sion Jiogatoire, issued but not returned ; and is entitled, under any circumstances, to adduce evidence after the return of the commission. 2 Jurist, p, 285, Foster et al. vs. Chamberlain et al, S. C. Montreal ; Smith, J. EiiquCte days in term fixed for the 24th, 25111 and 2Gth days of each month ; and tlie (Uli, 7th and 8th of each month for the adduction of evidence and hearing on the merits at the same time. 2 Jurist, p. 287. Ilelil, That the proper course for a party closing his enqucte is to call on the opposite party to fix a day for his cnqtiete, and in case of no one appearing or fixiiiL' ii dtiy, to have the enquete of the party in default, clo.sed on application to the I'uurt. Jiowker \s. McCorkill. S. C. Montreal, 1853; Cond. Rep., p. 1. Day, Smith, Mondclet, J. Held, That a party who has contested an opposition on the ground of insol- vency and fraud, may fyle, at enquete, copies of documents in support of such allcifations. Bruneau vs. Moquin. S. C. Montreal; Cond. Rep., p. 29. Held, That defendant's motion to discharge plaintiff's inscription for cnqup'". for want of replication to general answers, will be dismissed. Tate et al. vs. Tc,'- rancc. S. C. Montreal, 1851 ; Cond. Rep., p. 57. Day, Smith, Mondelet, J. Contra, Torrance vs. Stephens et al. S. C. Montreal; Cond. Rep., p. 65. Same judges. Held, That a motion to set aside plaintiff's enquete on the grour 1 ihat the case was inscribed on the merits at the time of plaintiff's enquite, will be dismissed. Same case, Cond. Rep., p. 107. Held, That enquUe may be had preliminarily, on an answer setting up inter- ruption of prescription. Mire vs. Letoumeau. S. C. Montreal ; Smith, Vanfelson, Mondelet, J., 1853. Cond. Rep., p. 28. it u 152 ENQUETE. . Commission Roqatoire. Held, That a commission in the nature of a commission rogatoirc may be issued to the judges of another district for the purposes of a comjmlsoire. Hart vs. Buquet. K. B. Q. 1820. Held, That if no step has been taken by the adverse party, a commiition rogatoire may be had after "the four days from issue joined. Paterson vs. ifoitme ; K. B. Q. 1810. Held, That a commission rogatoire may issue on motion therefor, without affidavit of any kind. 2 Jurist, p. 77, Willis ct at. vs. Pierce. S. C. Montreal; Day, J. Held, That a commission rogatoire asked for on the day the case was fixed for evidence and final hearing, without affidavit of any kind cannot be granted'. 4 Jurist, p. 295, Lane et al. vs. Ross ct al., and Ross et al., 0pp. S. C. Mont- real ; Smith, J. Held, That a defendant cannot be held to proceed with his enquete in the ab- sence of the return oi' n commission rogatoire issued at the instance of plaintiff. 2 L. C. Hep., p. 238, McFarlane vs. Bresler. S. C. Montreal ; Day, Smith. Mondelet, J. Held, That a motion by a defendant, for a commission rogatoire to New York will be granted without an affidavit, with the condition added that it be returned within a delay fixed. G Jurist, p. 29, Johnston vs. Whitney. S. C. Montreal; Berthelot, J. Commission ordered to issue to receive plaintiff's oath in France, and to k returned, at his diligence, within a delay fixed. Prevoste No. 37. Commission Rooatoire. See Bills, and Notes, proof of. Inscription for. Held, That an inscription for proof and hearing on the merits of an exception of prescription and sale of litigious rights, is irregular, it being a partial inscrip- tion made without leave of court. 11 L. C. Rep., p. 73, i/io/iftai.s, App., Guyon, (lit Lemoine, Rcsp. In Appeal ; Lafi^ntaine, C. J., Aylwin, Duval, 3Icreditii, Mondelet, J. Notice of. Held, 1. That a party foreclosed from pleading, is entitled to one juridical day's notice of the inscription for enquitc under the 12th Vict., c. 38, sect. 25. 2. That a judgment in an action in riintegrande whicli does not describe the property affected by the judgment, will be reversed in appeal, on the ground of vagueness. 8 L. C. Rep., p. 470, Renaud, App., Gugy, Resp. In Appeal: Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, The notice for in.scription for cnqiiUte and hearing to bo given to a party foreclosed under the 12th Vict., c. 38, sect. 25, must specify the day on which the enquete and hearing will take place. 9 L. C. Rep., p 392, Smith et al. vs. O'Farrell. S. C. Quebec; Chabot, J. Held, That the notice of an inscription for enquete and hearing on the merits at the same time must be, in all cases, of at least eight days. 5 Jurist, p. 43, 1 . ■ I 11.: ENQUETE. 163 Shuter ys. Giii/on (lit Lemoine. S. C. Montreal; Badglcy, J. Contrary held by Berthelot, J. Held, 1. That an inscription for enquSle on plea of a defendant to a saisie arrU after judgment for the 5th March, made on the 1st March, does not allow sufficient delay. 2. That notice of such inscription is necessary. 3. That, under the circumstances, such inscription, and all proceedings thero- under, will be set aside with costs. 5 Jurist, p. 128, Whitney vs. Badeaux and Dutusac et al. T, S. S. C. Montreal; Smith, J. Re-openinq of. The plaintiflF's attorney moved to be allowed to re-open his en gu^^e, on f he ground that he had an understanding with the mayor as representing the defendants, that the proceedings in the cause should be suspended for a time, and ihereforc that he did not attend the enqiicte, which was closed in his absence : Held, That such arrangement or understanding was not binding on the defend- ant's attorney, whose management, as dominus litis, could not be interfered with. 10 L. C. Rep., p. 19, O'Connell vs. The Mayor, &c., of Montreal. S. C. Montreal ; Smith, J. Same case, 4 Jurist, p. 56. Held, In the S. C. That a plaintiff will not be permitted to fyle now answers to interrogatories surf aits et articles on an affidavit made by him, that from the arguments of counsel, and the disturbance and conversation going on in the Court at enquete where hie examination was taken viva voce, he became perplexed and confused ; and that the action will be dismissed on the answers as made, no wit- nesses having been examined. In Appeal ; That the record will be remitted to tlie Court below, for further proceedings at enquete, each party paying his own costs in appeal. 10 L. C. Rep., p. 248, Mos!>, App., Douglas et a^.,Resp. In Appeal; Lafontaine, C. J., Aylwin, Duval, Mondelet, Badglcy, J. Held, 1. That a party who examines his adverse party as a witness, is bound at the close of the enquete, to declare his intention to avail himself or not of such evidence, otherwise he can derive no advantage from the evidence. 2. That where the articulation of facts of an opposant concerning the facts of the case, is not answered by the pluutiff contesting, the opposition will be main- tained. 12 L. C. Piep., p. 399, Owens vs. Duhuc, and Campbell, 0pp. S. C. Montreal; Badgley, J. Same case, G Jurist, p. 121. Held, That a plaintiff in an action en homage will be allowed to re-open his enquete to examine relations, inasnmch as the defendant, by the coming in force, during his enquete, of the statute 22nd Vict., c. 27, sect. 51, had an opportunity of examining his relatives on the issues raised. G Jurist, p. 251, Vannicr vs. Falkner. S. C. Montreal ; Badgley, J. Held, 1. That the contestant, an attorney, having appeared by his attorney ad litem, will not be allowed personally to conduct th(5 examination ol' the oppo- sant as his witness. 2. Nor can he do so, although as a practising barrister, lie fyles an appearance \ I IP 154 EVIDENCB. as counsel at enquSte. 6 Jurist, p. 295, Ramsay vs. David, and Walker, 0pp. S. C. Montreal ; Badgley, J. Held, That where a plaintiff, pending his enquite, has obtained leave to amend his declaration, he will not be allowed to proceed further with his enquite until the amendment has been made, and the defendant has had an opportunity of pleading de novo. 6 Jurist, p. 301, Mannet al. vs. Lambe. S. C. Montreal; Badgley, J. Enquete ordered to be taken before the lieut.-gen. of the PrivosU. Cons. Sup., No. 70. • Revision. Held, 1. That a judge sitting in term, may revise a ruling of another judge made at enquite. 2. That a ruling at enquite is illegal, which allows a defendant time to apply to the Court of Appeals from a judgment dismissing his defense en droit to the declaration, by granting a suspension of cnjite^c for that purpose after notice given of such application. 2 Jurist, p. 134, Scott ct al. vs. Scott et al. S. C. Montreal ; Smith, J. D. See Evidence Commercial Facts. Enquete, on exceptions wrongly dismissed below. See 3 L. C. Rep., p. 65. " Suspension of to allow time for appeal. See Appeal Interlocutory. " In Appeal. See Appeal, Enquete in. " Inscription for hearing without enquite. See Bills AND Notes, payment of. Enquete, Limitation of See Judgment, Res Judicata., ENVOI EN POSSESSION. Held, That the period at which the heirs of an absentee are entitled to an envoi en j^osscssion must be determined by the legal direction of the court, according to circumstances. Ejo parte Bellet. K. B. Q. 1817. Held, That an action en rcvendication cannot be maintained by the presump- tive heir to the estate and succession of an absentee, if he be not curator to the estate of such absentee, or entitled to the possession thereof by virtue of an envoi en possession or the death of the absentee, Gauvin vs. Caron. K. B. Q. 1819. ERREUR DE DROIT. See Action, Error. ERROll. See Bills and Notes, error in date. EVIDENCE. Account at Bank. Held, That the private account of a party in a cause sued as curator, at a banker's, may be proved and shown, where it is established that the money in )i an envoi EVIDENCE. 155 dispute has been lodged at the banker's to the credit of his private account. 6 Jurist, p. 83, McKenzie vs. Taylor. S. C. Montreal ; Monk, J. Acts op Enjoybient. Held, That acts of enjoyment can only be '.I'^od to explain the terms of a frant, supposing such terms to be ambiguous. 3 Rev. do Jur,, p. 371, Chandler, App., Attorney General pro Rege., Resp. In the Privy Council, 1845. Admission. Held, That the aveu judicaire is indivisible, and that in the case submitted, the sjiccial answers of plaintiff contained a denegation of defendant's exceptions, Holland vs. Wilson et al. 1 L. C. Rep., p. GO. In Appeal; Stuart, C. J., Pallet, Aylwin, J. Held, That an aveu made in a pleading cannot bo divided. 2 Jurist, p. 79, Lc/ebvre vs. Dc Montigny. S. C. Montreal; Day, J. See also Evidence, Parol. Held, That a written statement furnished by a savings bunk to a depositor, of liL-i account in the bank, will be taken as evidence against the bank, where there is no evidence to show error. 4 L. C. Rep,, p. 235, Morris et al. vs. Unwin et al S. C. Montreal; Day, Smith, Mondelet, J. Ilelil, That no admission of facts can bo inferred from the contents of an ex- ception to serve as evidence. Such admission must be express. Brochu vs. Bourgo. K. B. Q. 1811. Admission of Agent. Sec Principal and Acient. Admission of former partner. ASt'e'PARTNEUSiiiP. " See Interrogatory, sur faits et articles. As to Particular Words. Held, That witnesses may be called to shew that a particular expression, in a emiiniercial contract, i.s understood, in the mercantile world, in a sense which differs from its ordinary import. Scholejield vs. Lehlond. K. B. Q. 1821, Before Lord Mayor of London. Held, That evidence taken before the Lord Mayor of London, is admissible in proof of goods sold in London, under the Imperial statute 5th Geo. 2, c. 7. Sairyerxs. Newton. K. B. Q. 1820. Held, That an affidavit before the chief magistrate of a town in Scotland is lawful evidence under the statute 5th Geo. 2, c. 7, if it be in other respects according to that statute. Denniaton vs. Wilson. K. B. Q. 1821. Beyond Particulars. Held, That a plaintiff cannot give evidence beyond his bill of particulars, but the (Icfendant must object to such evidence when it is offered at enqiiete. Clarke vs. Fomjth. K. B. Q. 1813. » t ri 156 EVIDENCB. Held, That a bill of particulars which is applicable to any count in the decla- ration is sufficient, but the plaintiff in his evidence must be strictly confined to that count only (if there is but one) to which his bill of particulars can apply, Craig vs. James. K. B. Q. 1817. Commencement de Preuve. Held, 1. That answers to /(tils et articles, or a refusal to answer, will bo con- sidered, as in commercial cases, an equivalent to the memorandum in writin" required by the statute of frauds. 2. That a clerical error in a judgment of the Superior Court, by which a defendant was condennied to pay £54 4s., instead of £50 4s. will be corrected in appeal, and the judgment affirmed with costs against the appellant, if, on the other reasons of appeal, the Court is against the pretensions of the appellant, (i Jurist, p. 183. In Appeal ; Levi/, App., Sjionza, Resp. Lafontaine, C. J,,^ Aylwin, Caron, Duval, J. Judgment below (Morin, J.) confirmed. Held, In an action of assumpsit for money lent, that the plaintiff may examino a party defendant as to his signature to a note in his (Plaintiff's) favor, although prescribed. G Jurist, p. 30. ii«fore witnoHticH in England, and affirmed before the Lord Mayor of London, produced in the case, but not proved. 7 L. C. Rep., p. 481, Purington vs. Iliggint. S. C. Montreal ; Day, Smith, Mondelet, J. As to what will constitute a power of attorney bcfficient for sale of land. Sec this case, in which it was held inter alia that a sale of soccage land by B in the name of a firm, under a power of attorney to his partner, was valid although not signed by the purchasers, and although not executed in presence of witnei<»ca nor under seal. 7 L. C. Rep., p. 139, Cummings, App. vs. Quintal, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, In a petitory action where the plaintiff's title depends on the validity of a power of attorney sous seign privi executed in Upper Canada, and attested by a notary public of Upper Canada under his seal of office, with a certificate of the administrator of the government of this province annexed, that the production of such power and certificates is not sufficient proof of its execution. 2 Jurist, p. 109, Nt/e vs. McDonald. S. C. Montreal; Day, Smith, Mondelet, J. Power op Attorney, Ratification of. See Corporation, Mortmain, Bequest. Quality. Held, That in ex parte cases, the quality and capacity in which the plaintiff sues, and in which the defendant is sued, are admitted by the default of the latter, and evidence of the debt only is required. Berthelot vs. Eobitaille. K. B. Q. 1813. Held, That a defendant who does not appear, admits, by his default, the character in which he is sued. Auld vs. Milne. K. B. Q. 1819. Held, That a woman sued as the widow of A B, admits her marriage and the death of her husband if she docs not plead, by exception, to the quality and capacity in which she is sued. Gesseron vs. Canac. K. B. Q. 1820. Receipts. Held, That in a commercial matter, witnesses may be examined to explain a receipt which is ambiguous in its terms. 1 Jurist, p. 43, Garth vs. Woodbury et ah S. C. Montreal ; Day, Smith, Mondelet, J. Sec also 3 Jurist, p. 89 ; 9 L. C. Rep., p. 339, Whitney vs. Clark. Held, That a receipt in full, given by a clerk only empowered to give receipts for money which he receives, is not conclusive evidincc. Munroe et al. vs. Big- gins. K. B. Q. 1810. Held, That in an action for moneys paid, receipts dated after the service of the summons ad respondendum are not evidence of the demande. Hobichaud vs. Fraser. K. B. Q. 1817. Held, That it is the business of the creditor, when his debtor pays in coin, to examine and establish the value of what he receives , ood he cannot, after bis WW BYIDINCB. 16S receipt, (lisputo tho quantum received; tho receipt is ovidonco againet him. Kivers vs. Whitney. K. B. Q. 1816. Of Receipt with a Cross. Held, That a receipt, signed with a cros8,^in presence of witnesses, for a sum exceeding one hundred livres, is valid. 12 L. C. Rep., p. 117, Neven et uat., App., DcBleury, Rcsp. In Appeal; Lafontaine, C. J., Aylwin, Duval. Mere- ditli, Bruneau, J. Same case 6 Jurist, p. 161. Record. Held, That tho records of tho court are higher evidence than a deed of sale by its oflBcer, tho sheriff. Hotel Dieu vs. Roxburgh. K. B. Q. 1811. Held, That if tho record says that tho parties were heard, it proves that they were present. FilUeau vs. Gurlet. K. B. Q. 1817. Hold, That a copy of an original paper deposited of record in the archivefl of the King's Bench, certified by the prottionotary, is legal evidence of its con- tents. Trembly vs. Cole et al. K. B. Q. 1820. Reqistbar's Copt. Held, That a copy taken from the enrcgistercd copy of a donation is not evi- dence. Beaudet vs. Bcaudet. K. B. Q. 1810. SuBscRiBiNO Witness. Held, That evidence of the handwriting of a subscribing witness, who is proved to be without the jurisdiction of the court, is sufficient if there be also evidence of the handwriting of the parties. Cuvillier vs. Fraaer et al. K. B. Q. 1810. Held, That two witnesses, where the qucstioji relates to two independent facts, arc required to each fact, but when the question relates to one general conse- quence, which is to be derived from several facts, one witness to each separate fact is sufficient. Eobichqud vs. Nadeau. K. B. Q. 1817. Tax of Witness, Held, That it is the right of a witness to be taxed in the court in which he is examined as a witness; and he cannot bring an action on a quantum meruit for attendance and loss of time as such witness. 8 L. C. Rep., p, 236, Gorrie vs. The Mayor, dx., of Montreal. S. C. Montreal; Smith, J. Held, That a witness cannot sue for the amount of his taxation, but must proceed by execution against tho party who suumioned him, under the 12th Vict., c. 5, sect. 9. 9 L. C. Rep., p. 6, Veilleux vs. Ryan. C C. Quebec ; Chabot, J, Held, That the taxation of a witness, whose taxation appears on his deposition, cannot subsequently be revised by the Court. 1 Jurist, p. 251, The Grand Trunk vs. Webst&r. S. 0. Montreal; Day, Smith, Mondelet, J. Temoin Necessaire. Held, That a coosin-gcrman may be examined as a witness to prove acts of heirship, which ordiaarily takes place iu the interior of families, and in presenot r: I \ i !i r 164 EVIDINOB. of rdatioM, who, to a certain oxtont, aro nooossary witnesMSs. 4 Jurist, p. 36, Pilion et al. vs. Binettt. S. C. Montreal ; Monk, J, Varianoi. Hold, That an action on an obligation payable A demande (if the defendant makes default) is not supported by evidence of an obligation payable d terrm. Laroux vs. Winttr. K. B. Q, 1813. ViaiFIOATION D'EoRITtTRES. Held, That a vtrijication d'ecriture$ by witnesses cannot be allowed, until all other modes of proof have boon tried, and have failed. Fournd vs. Duvert. K B. Q. 1810. Witness. Held, That if a witness eats and drinks at the expense of the party by whom he iM summoned, it is not an objection to his oompotoncy, but to his credit. Bctam f^Caron. K. B. Q. 1817. So with the objection that witness is a servant. Ca»§raxn vs. Peltier. K. B. Q. 1821. Held, That if the deposition of a witness dooH not state that he is, or is not, of kin to cither of the parties, it may be set aside. Slack vs. King. K. B. Q. 1821. Held, 1. That the defendant cannot be compelled to appear before the return of a writ of summons, to show cause why certain witnesses, about to leave the Province, should not be examined. 2. That depositions taken in such case, before the appearance of the defendant, are illegal, and the Court below should have determined on the validity of the fvidencc, so as to afford the party an opportunity of substituting legal evidence in lieu thereof. 3. That, under such circumstances, the party whose evidence has been rejected should be allowed to re-open his enquite, and, inasmuch as the adverse party did not move in limine to reject such evidence, each party shall pay his own costs. 2 L. C. Rep., p. 99, Malone vs. Tate. 8. JC. Quebec. In Appeal; Rolland, Panet, Aylwin, J. Held, That if o witness is beyond the jurisdiction of the Court, his deposition, taken in a former suit between the same parties, the matters in issue being the same, may be produced. 8 L. G. Rep., p. 68, Boe vs. Jones. S. C Quebec ; Duval, Meredith, J. Held, That a witness cannot be sued in damages for words used in the course of his evidence in court. 3 L. C. Rep., p. 87, iiocAon vs. iVa«er. S.O.Montreal; Pay, Smith, Mondelct, J. Held, That motions for leave to examine witnesses about to leave the Province, we exempted from the operation of the 11th rule of practice (that no frtictions of a day, nor any Sunday or holiday shall be reckoned) and that notice of such motion, served on a Saturday, is sufficient for tbe presentation of motion on the Monday. 10 L. 0. Rep., p. 383, JJtyme et al vs. FUmmmofUfVa^ Fither, 0pp. 8. C. Qat^i TaMhertam, J. EVOCATION — BXCHAKOE. 165 & K.B. IIolJ. That there is nothinp; illegal in oiomininf; the same witness twice oa b-halfuf the aamo party, and that, in this ease, the Hcoond deposition would not bo rcjootod. 2 JurUt, p. 93, St. Denit vs. Orenier et vir. S. C. Montreal, tluld, That a witness cannot be examined a second time, in the same case, by the party producing him, unlcHS with loaye of the court, on Hpecial application. 4 Jurist, p. 238, Joieph vs. Morrow et al. S. C. Montreal ; Badglcy, J. Held, That a party to a suit, who has answered interrogatories tur faitt ei Oi'ticlei, may be examined as an ordinary witneu. & Jurist, p. 223, SaiU^ f x. kcKenzie et al. S. 0. Montreal ; Monk, J. WiTNiM, Gontrainte against. See CoNTaAiMTB against Witness. « about to leave. See ENQUtTi. « number of. See Pinaltv, Penal Statute. EviDiNOK of Portage. See Action Pbtitokt, Tradition. " Bankruptcy. See Bankrupt, Evidence. Bills and Notes, See Bills and Notib, Proof of. Slander. See Damaqcb, Slandkr. value of lost goods. SeeOAVB ; also Carribbs, proof of falue. in Qui Tarn, actions. See Pbnal Statute. of Publication of Newspaper. See Newspaper. of Notes and Protest of Bills. See Bills and Notes. to vary written contract. See Bills and Notes, Protest, Affidavit, of payment of note. See Bills and Notes, to get book note, as to value of missing goods. See Carrier — Oath. of Remise. See Damages, joint and several; against third party. See Fraud, Insolvency. Corroborative. See Damages, Slander, how governed. See Lex Loci. of relations. See Enquete, reopening. See Criminal Law, Evidence. Admission in Pleading. See Damaqbs, Arrest, Attachment. 41 M 4t (I • (( U u u It 11 l( N H U U U |l. EVOCATION. Fee of Office. Held, That the words " fee of office," do not apply to cases of costs of action alleged to have been taken too high, so as to give ground for evocation. 6 L. C. Rep., p. 474, Derome vs. La/onds S. C. Montreal ; Day, Vanfelson, Monde- let, J. Rente ViAoiRE. Evocation from Commissioners' Court allowed in an action for rente viagire, Su Donation. EXCEPTION A LA FORME. Set Plbading. ' \ I 166 BZECUTION. EXCHANGE. Fraud in. Sec Fraud, Exchange. ni iK 1 1 EXECUTION. Exemption from Seizure. Held, That books of account, litres de creance, and papers of the defendant, in his possession, are not h'able to attachment, aont non saisissahles. 5 L. C. Rep., p. 299, Fraser vs. Loisclt. S. C. Montreal ; Day, Vanfelson, Mondelet, J. Held, That moneys payable by the revenue inspector, for services rendered by an informer, under the 14th and 15th Vict., c. 100, are not liable to seizure in the inspector's hands. 8 L. C. Rep., p. 287, Leclere vs. Caron and Lei,u)ine, T. S. C. C. Quebec; Chabot, J. Held, That the sword of a military officer is exempt from seizure as being part of his necessary military equipments. 8 L. C. Rep., p. 511, Wade vs. Hus- sey and Hmsey, 0pp. C. C. Quebec ; Chabot, J. Formalities op. Held, That the old formalities of the saxsie execution against immovables arc no longer required. Volante vs. Dnqieau. K. B. Q. 1818. Held, That the formalities of the commandement required by the code civil upon a saisie of movableg, are not now required upon the execution ofafifa de bonis. Robinson vs. Williams ct ah K. B. Q. 1818. Held, That an opposition d Jin d'annuller, founded on the want of a proces verbal of seizure of immovables cannot be maintained. Pozer vs. UEspcrance. K. B. Q. 1812. Held, That if an opposant is ruled to fyle his moycns in three days, and docs not fyle them, his opposition will he dismissed on motion. Henderson vs. Galar- neau. K. B. Q. 1813. Dallow vs. Blachstone. K. B. Q. 1819. Held, on opposition. That the absence of a date in a proces verbal of seizure of real estate is fatal. Russette vs. Dalrymple and Dalrymplc, 0pp. S. C. Montreal; Cond. Rep., p. 54. The adjudication of a floating dock was held illegal and voidable, the party upon whom it was seized not having been previously requested to pay, and a copy of the saisie not being lett with the party saisi, and the bailiflf who gave the notice of sale not being authorized to do so by the sheriff, the purchaser being the agent of the saisi, and the place of sale not being indicated. The action was en revetulication by the assignees of a bankrupt. The defendant, the adju- dicataire, set up title under a shcriflf 's sale ; the pU'intilTs, by their special answer, alleged fraud and the want of the formalities referred to. The sheriff" 's sale was illegal and voidable, and was set aside in the court below. Stuart, Bowen, Panet, J. In Appeal; Holland, Chabot and Angers, J. held the title absolutely null and void, by reason of the informalities in the seizure, the insufficient notice, the mode and manner of the sale, and the unjustiflable conduct of the adjudicataire, •defendant. 1 L. C. Rep., p. 71, Longman vs. Ross ctal. EXECUTION. 167 Held, That shares ia the stock of an unincorporated company cannot be taken in execution in the manner provided by the 12th Vict., c. 34, for the seizure and gale of shares in incorporated companies. 1 L. C. Rep., p. 92, Bruneau vs. Fosbrooke. S. C. Montreal ; Day, Vanfelson, Mondelet, J. Held, That in the execution of a writ of saisie revendication it is not neccf*- sary that a bailiflF should be accompanied by a recors. 1 Jurist, p. 81, Dc«jar- dins vs. Dubois. 8. C Montreal ; Day, Mondelet, Chabot, J. Held, As above, in case of a saisie execution. 1 Jurist, p. 188, Guil/oye vs. Tate et al. and Tate, 0pp. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That an execution issued on a judgment against several defendants jointly, directed against one of them for the whole debt is illegal, and will be set aside on opposition, without even a tender of the amount justly due by such defoudaut. 3 Jurist, p. 118, McBean vs. DeBartch et al. and Drummond, 0pp. S. C. Montreal ; Badgley, J. Held, That where two executions issue at the suit of diflFercnt plaintiffs against the same defendant, it is irregular to unite bntli seizures in one proces verbal. 3 Jurist, p. 119, Sanderson va. Roy dit Lejjcmee and 0pp. S. C. Montreal; Smith, J. So held in Appeal, Palliser, 0pp., vs. lioi/ dit Lepcnsee, Resp. 4 Jurist, p. 208. Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. Held, That on a venditioni exponas as to movables, a proccs verbal de recolle- ment is not necessary, and is useless under the ordinance of 1785, .sect. 32. Opposition dismissed. 1 L. C. Hop., p. 279, Lesperance vs. Langcvin. S. C, Montreal; Smith, Vanfelson, Mondelet, J. ; Mondelet, J., dissenting. Levy. — Poundagjs. Held, that moneys received by the sheriff from the defendant, after seizure of effects, but without sale thereof, are not liable to distribution an»ongst defendant's creditors, who, by their oppositions alleged defendant's deconfiturc. 1 Jurist, p. 85, Rifan el al. vs. Woods et al, S. C. Montreal ; SmiLh, Mondelet, Chabot, J. On motion against the sheriff, Semble, That under the Consolidated Statutes of Lower Canada, c. 95, the sheriff is entitled to poundage of 2^ per cent, on the judicial sale of property in all cases, whether he receives the money, or whether a bond is given as provided by law. Held, That the court could make no order against the sheriff on a ruL, and that if he takes more than the law allows him, an action to recover the sum overpaid is the proper remedy. Motion dismissed. 12 L. C. Rep., p. 189, Ukike et al. vs. Fanet et al. S. C. Quebec ; Stuart, J. Saibie Arret. The firm of S. & W. H., in Lower Canada, being indebted to J. W., transferred 75 promissory notes to a factor on his account. At the time of the transfer, S. & W. H. were en deconjiture ; a saisie arret, having subsequently issued by other of areditfjrs of S. & W. H., the 75 notes in the hands of the debtor were attached. Held, 1. In the Privy Counc'i. That the transfer having taken place before the 'jxeoution of the saisie arret was /alid by the French law in force in Lower Canada. I , t m; 168 EXECUTION. . ! 2. A commiasioD for the ezamination of witnesses in Canada to proye such decomjiture refused. Semble, By the old French law prevailing in Lower Canada, all ordonnanct* not registered arc void. 3 Rev. dc Jur., p. 427, Hutchinson, App., Gilletpie h al., Resp. Held. That a seizure under a writ of fieri facias of movables, deposited with and in possession of plaintiff is bad, that the proceeding should have been by saisie arret. 1 L. C. Kep., p. 114, Morris vs. Antrobus &ad Antrohxu, 0pp. S. C. Montreal ; Day, Smith, Vanfelson, J , Held, That a tiers saisi may be permitted, on cause shown, to make his decla- ration, after execution issued against him by default. 1 L. C. Rep., p. 140, Andrews vs. Robertson. S. C. Quebec; Bowen, C. J., Meredith, J. See 3 L. C. Rep., p. 80, Roy vs. Scott and Lesmesurier A al, T. S. S. C, Montreal ; Day, Smith, Vanfelson, J. Held, That the signification of u saisie arret on defendant by a creditor of plaintiff will not stay proceedings on execution against defendant, but the defend- ant, to stay proceedings, must tender or deposit the amount of the judgment against him in debt, interest and costs. 4 L. C. Rep., p. 142. Duvernay t.«, Dessaules. In Appeal ; Rolland, Panet, Aylwin, J. Held, That where a defendant has left the Province after judgment, and ha-- no domicile therein, it is nece8.sary that the writofaajsie arret ai'ter judgment bu served on him. 10 L. C. Rep., p. 21, Jlogan vs. Geron and The Bank of Mon- real, T. S. S. C. Montreal; Berthelot, J. Held, On demurrer to an exception a la forme which set up the irregularity of the affidavit, and denied the allegations contained in it, as to the concealing or doing away with the property to defraud, and affirmed that defendants had always acted in a legal and open manner in their business. Held, 1. That the defendants might l^ally attack the validity of the exploit. ie saisie arrit, by an exception to the form. 2. That the court below should have ordered proof before deciding on the answer in law. 3. That not having done so, the judgment below maintaining the answer in law. will be reversed, and the parties ordered to an enquite. 12 L. C. Rep., p. 2t>5, Leslie et al., App., Molsons Bank, Resp. In Appeal ; Lafontaine, C. J., Ayl win, Duval, Meredith, Mondelet, J, Held, As in No. 1 above, and exception to the form maintained, and «ame arrii ■et aside. Judgment for plaintiff for debt. Biroleau dit Lajleur vs. Le,Bel C. C. St. Scholastique ; Badgley, J. Held, That a saisie arrSt before judgment for the recovery of a debt, part of which, at the institution of the action wae not due, but T^hich became due duriim the pending of the action, will be maintained under the circumstances of tki« ease, and the judgment of the court below, condemning the defendant to pay the whole debt maintained. 1 Jurist, p. 104, Prefontaine, App., Frevcst et al , Kcsp In Appeal ; Lafontaine, C. J., Ay'win, Duvil, Caron, J. The ruling as given in the Jurist was deolared inaccurate by Mr. Justice Aylwin at the hearing of a subsequent cause. SXBOUTIOir. 16&^ Held, That a iaine arrit, ofler judgment, wiH not be dismissed on motion, for being returned into court a day too late. 3 Jurist, p. 97, Mohon vs. Burrought »nd The Bank of Montreal, T. S. S. C. Montreal ; Mondelet, J. Held, That a writ of taine arrit after judgment, or^nnot be issued and served upon a tiert saisi resident in Upper Canada. 5 Jurist, p. 329, McKemie et aL vs. Douglas, and Bonn et al., T. S. S. C. Montreal; Smith, J. Held, That a writ of Baisie arret after judgment, must be served upon the defendant within the same delay as an ordinary writ of summons. 6 Jurist, p. 45, McLaren et al.y^. Hutcheton and Prater, T. S. C. C. Montreal; Berthelot, J. Made without title or ordonnance de justice set aside. Pr4vo8t6, No. 95. Not to be made on billets ou promesses sous seign privi. Cons. Sup., No. 25. Saisic arrit declared valid, for the revenues present and future, of a seigniory. Cons. Sup., No. 30. Tiers Saisi. Held, That a tiers saisi, condemned by default, may be relieved from the con- demnation at the next following term. Craig vs. Cannon and Hudson, T. S> Bedard, J. K. B. Q. 1846. Held, That the declaration of a tiers saisi is conclusive until it is contested »Dd disproved. Smith vs. Bourne. K. B. Q. 1809. So in Robertson vs. Ref- fmtdn. K. B. Q. 1821. Held, That an answer by a tiers saisi, which would be no answer to a demande by his creditor, is no answer to the saitsissant. Brehaut vs. Loupret et al, K. B. Q. 1818. Held, That a tiers saisi who refuses to deliver up articles seized in his pos- session is guilty of contempt. Ferguson vs. Millar and Hooker, T. S. K. B. Q. 1813. Hold, That the amount of a note payable to order cannot be attached in the Linds of the maker as tiers saisi. Shore vs. Hoi/t et al. K. B. Q. 1813. Held, That unless a tiers saisi be liable as to his creditors to a.contrainte par corps, no application on the part of the saississant for such contrainte could be made in France ; a motion for a ca. «a. on a notarial obligation was therefore rejected. Perrault vs. Leblond and Quinn, T. S. K. B. Q. 1821. Held, That in every ease of saisie arret, the defendant must be summoned, otherwise no proceedings can be had even against a tiers saisi by default. Prior Ti. Dotamar and Heath, T. S. K. B. Q. 1816. Held, That proceedings against a tiers saisi will not be ^upended by an appeal by defendant, if the appeal was not allowed for want of sfwurity. Perrault re. Ihrgia. K. B. Q. 1816. Held, That the declaration of a tiers saisi must be positive, "I do not owe," or " I shall owe at a time certain," not " I may owe ; " therefore when it was svorn that the debt depended upon a contingency, the tiers saisi was discharged. Arnold ys. Uppington. K. B. Q. 1821. Held, That if the sheriff seizes property in the hands of A, under a wi'it which kuthorizes him to seize property in the hands of B only, the efntor.'£ of certain municipalities, will be ordered to deposit the same with tht })''Othocet.: of tho court. 6 Jurist, p. 301, Ferz-y vs. Milne and Ontori* Bank, '£. ii S. C. Montreal ; Badgley, J. Tiers saisi dinoharged for want of signification to the defendant of the mm 1 arrit. Cons. Sup,, No. 28. Tiers taisi relieved from a condemnation given by default. Cons. Sup., No. 57 Tiers saisi cokdemned for roi'using to take the oath. Prdvost^, No. 26, No 129. Tiers saisi ordered to keep the amount of a note to bearer, in his haii'ii Cons. Sup., No. 57. To ANornER District. Held, That under tht^ 40th section of the Consolidated Statutes of LoW'ir Canada, c. 83, a defe? .(ant, opposant, is bound to allege and prove that hchw property in the distr?'.^t wlierein the judgment was rendered, in order to suspeci the execution of th', writ in another dif'riit. 12 L. C. Rep., p. 403. ifcsf vi Coutlee. S. C. Montreal ; Badgley, J. Writ of Possession Held, That a writ of possession will not be granted to an adjudicataire of tt- uxidivideu half of an immovable property, it appearing that the property i> | indivisible, and the whole in the possession of the proprietor of the other udJ; vided half the remedy in such case being by licitation. 12 L. C. Rep., p. 102, Ji- Bain vs. Hallet al and Boswell et al., adjudicataires. S. C. Quebec ; Stuart J lant of the saua iT, in his hand) EXPERT. 173 I JxiccTioN agiunst body. See Contrainte par oorps ; also Certiorari. (I <' several defendants stayed by an appeal by one of them. Set Appeal, Stay of execntion. (. « goods and lands. See Opposition. EXECUTORS OF WILL. See Will. EXEMPTION FROM SEIZURE. 5.V Execution, Exemption from Seizure. EXHIBITS. Costs of, allowed in the taxable costs. See CosTB, Taxation of. Se< Pleading, Exhibits. EXPERT. Accountant. In the report of an accountant, the Superior Court condemned the defendant 10 puy £46 2h. the amount demanded by the action with costs, including the costs of the accouatant ; the judgment was reformed in appeal and reduced to £3G 10s. 5d., but maintained as to the costs awarded by the judgment below, but without costs of appeal, and Held, 1. That the reference to an accountant was not sanctioned under tho 20th Vict. c. 44, sect. 92, the case being brought on a bill of particulars for board furnished and cash advanced, and not iavolving the settlement of accounts. 2. That the report was irr^ular, and should have been rejected, and that undiT the section referred to, reports of accountants must be acted upon, and homologated in the same way as reports of ar.perts. 10 L. C. Rep., p. 317, FAintt, es qualiti, App., Howard, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Puval. Mondelet, J. Action dy. Held, That an expert, appointed on the suggestion of one of the parties to a juit, has a right of action for his services against both, jointly and severally. 10 L. C. Rep., p. 189, Wallace vs. Brown et al. S. C. Quebec; Stuart, J, Held, In Appeal, That an expert appointed by the court, at the suggestion of one of the parties, can only look to such party for payment of his services as npert. 11 L. C. Rep., p. 182, Brown, App., Walkice, Resp. Aylwin, Duval, Mondelet, J. ; Lafontaine, C. J., and Meicdith, J., dissenting. Same case, 5 Jurist, p. 60. Builder's Claim. Held, 1. That on a distribution of moneys the expertise made by the arohi- teet and builder may be attacked by the bailleur de /onds, who may obtaia • contradictory expertm, if the two privileges come into oonfliot. ' ) I 174 EXPERT. 2. That tho valuation ought to bo made with regard to the value of the builj. ings and lot at the date of tho decrcl, and not at the date of the enrcgistratioD bt tho bttiMer ; and that tho b V 7 ^ Photographic Sdences Corporation ^---U% 4^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 i j ■■ ) If i i I :':t.:|. i .1: 178 rRAUB. See case in the court below. 2 Jurist, jt- 19&< In Appeal, 5 Jurist, p. 1. 10 L, C.Rep.,p. 122. Held, 1. That an insolvent debtor cannot transfer or assign over his stock in trade to two of his creditors, in trust for the benefit of the whole, without the sanction of all the creditors. 2. That where such an assignment is made without the consent of the whole of the creditors, and the assignees, having obtained the key from the assignor, look up the shop and take an inventory, and advertise the goods for sale for the benefit of the creditors generally ; any of the non-consenting creditors may, not withstanding, seize the goods as being still in the possession of the debtor, there being no sufficient transfer or delivery in law, to transfer the property to the assignees. 10 L. C. Rep., p. 149, Withall, App., vs. JUichon, Resp. In Appeal i Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. The respondents brought & suit against one Delesderniers, in which the appel- lants were tiers saisis; the respondents contested the declaration made by the appellants, it appearing that the appellants claimed certain effects by assignment from one Prevost to the appellant McFarlaLC, under an assignment from the latter to his co-appellant. Held, -In the Superior Court, Montreal, That the contestation must be dis- missed,, inasmuch as Pr<^vost had not been made a party to the proceedings to set aside the assignment to the appellant, McFarlane. In Appeal ; Judgment of the Superior Court set aside, and the assignment held to be fraudulent, and the appellants ordered to make a declaration of all the «ffect8 sold by Prevost to McFarlane, and by McFarlane to his co-appellant. In the Privy Council, Held, That in the case submitted, the assignments were not fraudulent ; that the fact of the assignments being made by notarial deed was not evidence that the sales were not bond fide ; that the circumstance of the sales being made without warranty did not raise a presumption that the sales were fraudulent; and that because a vendor refuses to warrant, it must not therefore be taken for granted that the purchaser knew that there was fraud, or that there was no title. Semhle, That by the law of Lower Canada, in the case of a sale without a warranty, the vendor would still be liable to the purchaser, if he sold with know- ledge that he had no title. Their lordships declared that they gave no opinion as to whether Prevost should have been put en cause. 12 L. C. Rep., p. 374, McFarlane. et al., App., Leclaire et ah, Resp. In the Privy Council; Lord Kingsdown, et al. Held, 1. That the assignment of an unfinished contract will not be set aside on allegations of fraud by a creditor of the assignor, such fraud consisting in the assignment of money due on that part of the contract completed at the date of the assignment, it appearing that the assignment was made in good faith, to pro- cure means of completing the Works. 2. That in such case, if the amount transferred exceeds the value of the work still to be done, the creditors of the assignor may compel the assignee to reim- burse the surplus. 12 L. C. Rep., p. 432, jBerKnyMc«, App., 2)rofe«, Resp. In Appeal i Lafontaine, C. J., Duval, Mondelet, J. ; Meredith, J., dissenting. FRAUD. In Donation. 179 Held, That a donation made by an aged and weak person, in consideration of a small annuity for life much inferior to the amount of the annual issues and profits of the estate given, may be set aside in an action of rescision if the infer- ence of fraud is not rebutted by evidence, Bernier\8. Boisseau. K, B. Q. 1813. Held, That if a donee wilfully frustrates the objects intended to be effected by the donation, bis misconduct is a, cause of resiliation. Lagad vs. Courberon. K. B. Q. 1817. ' Held, That a donation which (as in this case) is tainted with fraud towards the creditors of the donor, is inoperative. 6 L. C. Rep., p. 404, Marion, App. Perrin, Resp. In Appeal; Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, 1. That a bankrupt, purchaser of real property belonging to his estate, sold in bankruptcy, cannot revive an hypothecary claim which had existed upon the property, and which had been extinguished by the judicial sale. 2. That a subsequent purchaser, sued hypothecarily by reason of such claim may urge, by way of exception, any fraud with which such claim may be tainted in consequence of its revival. . 3. That, in the case submitted, a donation of the pretended arrears of a life, rent to the minor children of the bankrupt, such rent being payable by the bankrupt, who accepted for his children after the granting of his certificate of discharge, and after the sale of the property, is inoperative as against the pur- chaser, and the donation declared fraudulent, although the minors had not personally been participators in the fraud. 3 L. C. Rep., p. 446, Cadieux App., Pinet et ah, Resp. In Appeal; Lafontaine, 0. J., Aylwin, Duval, Caron, J. Held, That a donation from father and mother to their son, of all their pro- perty, will be set aside as in fraud of creditors, notwithstanding that it is made subject to the maintenance of the donors during their lifetime. 10 L. C. Rep., p. 224, LavalU vs. Laplante dit Champagne, and Laplante dit Champagne, 0pp. S- C. Montreal; Berthelot, J. Query, As to whether a (donation by the husband was made in fraud of the wife's rights or not. 1 Rev de Jur., p. 417, Desbarats, App., DeSales Laterrilre Resp. In Appeal ; Valli^res de St. Real, C. J., RoUand, Gale, Mondelet, Day, Gairdner, J. 1846. Held, That, in the case submitted, the donation of movables contained in a marriage contract,^ by the husband ih favor of his wife, still a minor, with stipu- lation of separation de biens, is a fraud with respect to a person having a claim against the husband, by reason of seduction, and that the wife cannot claim main levk of the seizure of such movables made upon the husband in satisfaction of such claim. 12 L. C. Rep., p. 172, Ghaput en qualites vs. Birrt/ and Sanscar- iiir dit Boisseau, Ovv. S. C. Montreal; Badgley, J. In Exchange. Held, That an action en restitution and rescision may be maintained in case of an exchange of real estate. Laperriire vs. Thibodeau, K. B. Q. 1821. I : fii l^t»; ■, ii i.i -X- ;lhi i!! .1 I «, '■• mm yv--- ''If' ' 180 FRAUD. mm \\^: «^^ n In Judicial Salb. Held, That a direct action will lie to have a sale of movables set aside tor fraud, and this, although a judicial sale has been resorted to. 3 Jurist, p. 35^ Ouimet et al, App., Senical et al, Resp. In Appeal ; Lafontaine, C. J., Ayl- win, Duval, Caron, J. In Appeal ; Lafontaine, C. J., Aylwin, Duval, J. ; Mondelet, J., dissenting. 4 Jurist, p. 133, same ruling on another appeal between same parties. Insolvency. Held, 1. That open and declared insolvency and bankruptcy vests in the cre- ditors the exclusive property of the insolvent's estate ; that a confession of judg- ment by such insolvent, is no evidence of a debt as against other creditors, and on contestation of such a claim on the plea of fraud and collusion, the creditor must prove his debt and the consideration of it, at enqulte. 2. That payment by a third person of debts due by such insolvent or banlcmpt debtor without transfer or SMfcro^ra/iow, thereby creating a debt to such third party subsequent to the insolvency, confers no right on such person to rank on the estate of the insolvent debtor as held at the date of his insolvency or bankruptcy. 3. That evidence of such claim not having been made when the cause was at enquite cannot be adduced subsequently, when proof was ordered by the Court of Appeals, on exceptions which had been wrongly overruled by the court below. 3 L. C. Rep., p. 65, Bryson et al., A^^., Dickson, Resp. In Appeal; Stuart, C. J., RoUand, Panet, Aylwin, J. Held, That the rescision of deeds set forth in an opposition to the' sale of immovables cannot be prayed for, unless all the parties to the deeds are joined in the proceedings. 2 L. C. Rep., p. 251, Mignier vs. Mignier and Opps. S. C. Quebec ; Bowen, C. J., Meredith, J. As to tradition and nullity of sale in respect of posterior creditors. See Sale op Goods, Fraud. Held, That in order to set aside a deed of assignment on the ground of fraud, the insolvency of the assignor must be alleged and proved. 8 L. C. Rep., p. 286, Bemier vs. VacJion et al. and Boucher, T. S. C. C. Quebec ; Chabot, J. Assignment by insolvent. See Fraud, In Assignment supra. Held, That the disposal of real estate by an insolvent person with a view to defraud his creditors is a sufficient reason for obtaining a writ of capias ad res- pondendum. 6 Jurist, p. 49, Langley vs. Chamberlain. S. C. Montreal; Badgley, J. Op the Law. ^ Held, In an action on two notarial obligations by a wife separie de biens in which she acknowledged herself personally indebted to the plaintiff, it is competent for her to plead, and prove by verbal testimony, that the indebtedness was really that of her husband, and that she was his security, on the ground that such contracts are in fraud of the law. 4 Jurist, p. 51, Mercille, App., vs. Foumier et vir. Resp. In Appeal ; Lafontaine, 0. J., Aylwin, Meredith, J. ; Duval, J., dissenting. FRAUD. ^Of Revenue. 181 Held, That pure grain spirits imported from Holland into this country, where it oan be proved that they were so imported with the necessary ingredients to make Holland gin, and for that purpose, are subject to the same duty as gin ; and that the importation of the same, as whiskey or grain spirits, is, in such case, a fraud upon the revenue. 7 L. C. Rep., p. 106, Torrance, App., Bouthillier, Keep. In Appeal ; Aylwin, Duval, Caron, Badgley, J See Officer Public, Customs. ' Revocation. Held, That a vessel f;-audulently sold by an insolvent debtor ftfter action brought against him, could not legally be seized oa execution de piano in the hands of a third party a purchaser ; and that it was necessary that the contract should, in the first place, be set aside as fraudulent, by means of a revocatory action. 6 L. C. Rep., p. 489, ChailU, Ap^., vs. Brunells, Resp. In Appeal ; Lafontaine, 0. J., Aylwin, Duval, Oaronf J. See Fraud, Assignment. Held, That an action en rescision of a deed of sale, on account of dol, where the defendant pleads prescription of ten years-, that an answer to the effect that the dol waa only discovered within the ten years, is good in law. 2 Jurist, p. 207, Picault vs. Detners. S. C. Montreal] Mondelet, J. Tradition. Held, That if there be no delivery upon a sale of movables, and they are seized in the possession of the defendant, fraud will be presumed, and the seizure will be maintained. MiviUe vs. Fay. K. B. Q. 1813. Held, That if a sale of movables is made by a defendant after an action is com- menced against him, and no delivery is made by the purchaser, fraud (^pHmA /ode) is presumed. Lageux vs. Eoerett. K. B, Q. 1818. Tradition — Consideration. Held, 1. That the sale of movables, by the defendant to the opposant, whom he subsequently married, was, under the circumstances in this cause, a fraudulent 2. That the want of possession and of consideration are strong indications of fVaud ; that delivery of the goods is only presumptive evidence of good faith, but non-delivery is strong evidence of fraud. 3. That an assignment without consideration is only a donation ; and fraud on the part of the debtor, the assignor, is sufficient to dispossess the donee. 4. That the law presumes personal property in the possession of married per- sons to be common property, unless disproved by strict proof <^f individual pro- perty in the wife. 5. That a subsequent creditor may plead simulation of a previous deed of property which never passed from the debtor. '1 • 182 QARANTIE. iilil 6. That marriage is a good consideration for bona fide stipulations in a mar- riage contract in favor of the wife. 6 L. C. Rep., p. 114, Barbour vs. Fairchild and Milligan, 0pp. S. C. Quebec ; Bowen, C. J., Badgley, J. As to what constitutes fraud. See 7 L. C. Rep., p. 250, Sharing ye. Afeunier €t al. Same Case, 1 Jurist, p. 142. Fraud in making inventory. See Inventory when null. •' Bankrupt. See Bankruptcy, Fraud, Sale. " Joint and several liability for. See Tiers Saisi. " Against a Statute. See EvidencEj Parol. " Damages set oflF against ^ria; devente. See Plbadino, Compensation. " Statute of. ^ee Statute op Frauds. " •In transaction. See Contract, Transaction. " in Insurance. See Insurance, Fraud. " in Bills and Notes. See Bills and Notes, Fraud. " " " " Composition. " « " When DUE. " " " Good Faith. Fraudulent Composition. See Fraud, In Assignment. u GAMBLING DEBT. See Bills and Notes, Good Faith. " Contract, Illicit, Void. ■'ill mm ! ; GARANTIE. Corporators. Held, on demurrer. That where parties are sued as if they were common co- partners, for debts of a corporation, they cannot call in their co-corporators to indemnify them against their proportionate share of the loss ; and that if there was any thing defective in the organization of the corporation, it should have been alleged, and made the basis of the action en garantie. 1 Jurist, p. 160, Howard tt al. vs. Childs et al. S. C. Montreal ; Day, Mondelet, Chabot, J. Held, That it is competent fordefendants en garantie who are impleaded as being " contractors, manufacturers, and co-partners " with the plaintiff en garan- tie, to deny that quality by a preliminary exception, as well as the names land designations assumed by the plaintiffs en garantie, and on proof to' obtain the dismissal of the action en garantie. 1 Jurist, p. 249, Edmonstone et al. vs. Chapman et al. and Childs et al., Pltfs. en gartie vs. Chapman et al., Defts. en garantie. S. C. Montreal ; Day, Smith, Mondelet, J. t Divisibility of. The defendant in an hypothecary action brought an action e)\ garantie against four only out of six of his vendors, liable to the garantie, and the action was dis- continued as to one of them. OARANTIE. 18S Held, 1. That under the deed of sale, each co-vendor sold only his own share, or portion hereditaire and was only liable en garantie to that extent, the obliga* tion of garantie being divisible quoad d'mnationem, and the three defendants were oondemned to indemnify the plaintiff en garantie, to the extent of one-half of the hypothecary debt, being one sixth for each defendant, with costs of the prinoipal demand, and with costs on the demand en garantie only up to the fyling of the plea, inasmuch as the defendants offered by their plea to allow judg- ment to go against them for one half of the hypothecary debt. 2. That the hypotheque is indivisible in so far as respects the immovable hypothecated. 11 L. C. Rep., p. 41, McCarthy vs. Sinical, and Sinical, Pltf» en garantie, vs. Bonneau et al., Defts., en garantie. S. 0. Montreal ; Berthelot, J. Held, That the garantie of co-vendors who sell undivided but . determinate shares in their real estate without stipulation of solidarity, is divisible. 1 Jurist^ p. 245, Marteau es-qual, vs. Tetreau. 8. C. Montreal ; Day, Smith, Ghabot, J. Held, 1. That a purchaser who has agreed to pay a sum of money in discharge of his vendor, cannot be called en garantie by the vendor, when sued for this sum by the creditor. 2. That it is the duty of the vendor to pay, before having recourse against the purchaser. 1 Jurist^ p. 42, Oauthier et al. vs. Darchi. S. C. Montreal ; Day^ Smith, Mondelet, J. Same case in Appeal. Held, That the action en garantie simple may be brought against a garant who was not a party to the contract which gave rise to the original action. 1 Jurist, p. 291. Lafontaine, C. J., Aylwin, Duval, J. ; Garon, J., dissenting. Held, 1. That an action en garantie simple will lie by a proprietor, for damages caused to his tenant by a third person, by reason of the demolition of a mitoyen wall, and this although the plaintiff en garantie may himself be liable for a part of the damages. 2. That such action will be maintained to facilitate procedure, and avoid a circuity of actions. 3 Jurist, p. 226, Delvecchio vs. Joseph. 8. C. Montreal ; Berthelot, J. Held, That a garant formel or simple must be called into the case by writ. Oauthier vs. Tremblay. K. B. Q. ISai. Held, That a simple garantie de fait in a transport, is a warranty of the debtor's solvency at the time of the assignment, and that he will continue solvent, and also that the debt is the property of the assignon Belanger vs. Binit. K. B.Q. 1820. Held, That in an action for rent, where the tenant calls in the lessor as his garant, who pleads property under a deed of donation, that the plaintiff cannot set up nullities in the donation, in answer to the plea of the defendant en garan^ tie. Special answer dismissed. Brossard vs. Murphy, and St. Hilaire, Deft. en Gar. S. C. Montreal, 1863; Smith, Vanfelson, Mondelet, J. Cond. Hep., p. 29. 1 \ ^^wd!' Wm WK -:l 184 oarantib. In Exohakoi. Held, That the garantie in an exchange of real property confers no hypotht- jPtM if no sum of money is stipulated by which the amonnt of the hypoiKequt van be ascertained. 2 Jurist, p. 139, Ex partie Caaavcmt and Lemieux, Opp> 6. 0. Montreal ; Smith, J. - „: -■ •!, ' ■■ I' ' FORMELLI. Held, That one who binds himself with a vendor solidairement to defend the purchaser against all claimants, is necessarily, a garant/ormel. Peltier vs. Puizit. K. B. Q. 1818. Held, That a purchaser condemned, in an action en declaration d'hypo- iheque, to deliver up an immovable, has his action of indemnity from the period of his abandonment of the property, against those who are bound to hold him harmless, although the property has not yet been seized, lior the garant put into the original demand. 12 L. 0. Rep., p. 68, Dorwin et ah, App., ffutchint, Reap. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Meredith, Mondolet, J, 'I Of Debt Prescribed. Query, Whether a garantie de /aits et promesses, implies a garantie of the existence of a debt prescribed before the date of the transport. 2 Rev. de Jar., p. 301, Done^ani, App., CAoj'ueMe, Resp. tn Appeal; 1841. Ratification of Title — Opposition to. Held, That on petition for ratification of title, an action lies to cause an opposi- tion to bie removed, unless an express stipulation to the contrary is inserted in the deed of sale. 8 L. 0. Rep., p. 501, Doiiglas, App., Dinning, Resp. Id Appeal; Lafontaine, C. J., Aylwin, Duval, Garon, J. -■ ^ -^r '■■- Same case, 3 Jurist, p. 32.* Held, 1. That an opposition to an application for ratification of title, is a trouble, and entitles the opposant to sue his vendor en garantie to cause such opposition to be removed, and hold him harmless therefrom, although no such stipulations are contained in the deed. 2. That in such action en garantie, where the writ has been sued out under the same number as the original procedure, and as if it were in that cause, it is not necessary for the plaintiflf en garantie to produce either a copy of the deed,.or any portion of the record en ratification. 1 Jurist, p. 194, Ex parte Judah, and Judah vs. Ralldnd. S. C. Montreal; Day, Smith, Ghabot, J. Garantie of debt not assignable. iSee Cession, Half-Pay. , " Letter of. See Surety. .1 i i|.. I i ' 11 -v' i ■jj j 11 ^ ^ iii Jj ffl ! 1 1 II ■ •' OARDIBN. 185 GARDIEN. Action aoainst. Id an aotion against a gardien, by a plaintiff who had seized effects by writ of latite arrit, which were sold on an execution by another party, prttying that the Mrdien produce the effects or pay the value thereof. ' ' Held, On demurrer, l^hat the plaintiff's remedy, if any be had under the oir- oumstances, was not by an aotion, but by a rule. 11 L. C. Rep., p. 476, Berry n. Cowan et al. 8. 0. Quebec ; Stuart, J. Delivery to. Held, That a gardien of movables will not obtain an order that the defendant deliver them up to him, unless on dear proof of their being deteriorated by impro- per use. 3 Jurist, p. 116, Paltgraveya. Sinical, and Frieur, gardien. S. C. Montreal ; Mondelet, J. Frais de Garde. Held, That a gardien of goods seized, under a writ of revendioation addressed to the sheriff, has a right of action as well against the plaintiff as against the theriff, for moneys expended as such gardien. 2 L. C. Rep., p. 360, Dinning n. Jeffrty. In Appeal ; Stuart, 0. J., Holland, Panet, Aylwin, J. Held. In an action by a gardien volontaire against the plaintiff en revendica- tion for moneys expended as gardien of a vessel seized, that the action must be dismissed, inasmuch as the vessel had remained de facto in the possession of the defendants, en revendication, and there was no sufficient evidence that the gardien had expended any money in and about the safe keeping of the vessel and effects seized. 5 L. C. Rep., p. lS2,»J)inning vs. Jeffrey. S. C. Quebec ; Bowen, C. J., Meredith, Badgley, J. Held, That a defendant in an action of revendication has no lien, {droit de retention) until he be paid his fees and expenses /rats de garde, a,B gardien judi mire in an action of revendication agaiinst the plaintiff as defendant, the acti.ii having been dismissed and the judgment notified to the gardien. 9 L. C. Rep., p. 360, Poutri vs. Laviolette. S. C. Montreal ; Mondelet, J. Held, That the sheriff has a right to retain such property as he may have lawfully seized until the frais de garde are advanced by the plaintiff. He has also the right to demand, in advance, all necessary expenses for the safe keeping ofwhat he has seized. Reed ya. Dcsnoyers. K. B. Q. 1819. A gardien who has delivered to the defendant the things he had in charge, cannot maintain an action against the sheriff for his salaire. Tardiff vs. Shep- herd. K. B. Q. 1813. Opposition by. Held, In revendication, if the defendant pleads by exception temporaire that he holds the property demanded, as gardien, appointed by a justice of the peace, imd prays that the plaintiff's action may be dismissed, it is irregular. He caa 11 <\ r It ; : .)- m\ i: ' 186 HABEAS CORPUS. •nly stay proooedings until tho person from whom he deriyos his authority to hold the property olaimod, is made a party to tho suit. His ezooption, there- fore, should be an exception dilatoire. Pacaud vs. Bigin. K. B. Q. 1818. Held, That a gardien to movables can oppose a second seizure of the game •ffeots, so long as the first seizure has not been disposed of. 12 L. C. Rep., p. 158, Langhii vs. Oamreau et al, and Oauvreau, 0pp. S. C. Quebec; Tasohe- reau, J. Held, On demurrer, that a gardien has a right to fyle an opposition to a ■eoond seizure of movables in his charge as gardien. 9 L. C. Rep., p. 495^ Smith et al. vs. O'Farrell and Coleman, 0pp. S. 0. Quebec ; Ohabot, J. Contrary held, 3 Jurist, p. 135, Donally vs. NaigU, and McDonald, Opp, S. C. Montreal ; Badgley, J. Gardien, Contrainte against. See Contrainte. I ,! HABEAS CORPUS. Bail. Held, That on application to admit to bail a person charged with murder, the judge will look to the gravity of the offence, the weight of evidence, and the mt- rity of the punishment, and may refuse bail. 6 L. C. Rep., p. 249, Ex parte J. B. Corriveau. Power, Cir. J. ; In Chambers, Quebec. Held, That a prisoner confined upon a charge of capital felony (arson) maybe admitted to bail after bill found by a grand jury, if the depositions against him we found to create but a very slight suspicion of the prisoner's guilt. 7 L. C. Rep., p. 57, Ex parte McGuire. Power, Cir. J., Quebec. Civil Suit, Effect on. Held, by Duval and Meredith, J., That a writ of ffabeag Corpus cannot be granted to liberate a prisoner charged with process in a civil suit {contrainte par corps for libel) even although the writ of execution under which he is anested is irregular. By Duval, J,, That the writ of Habeas Corpus is not granted for the purpose of reviewing the judgment of a civil court, or of questioning the regularity of the proceedings, either before or after judgment, but merely to keep courts within their jurisdiction, and not to correct their errors. By Meredith, J., That even if the writ of arrest is irregular, yet if it does not appear to be out of the scope of the jurisdiction of the court from which it issued, it cannot be declared void, and the prisoner, consequently, cannot be libe- rated on Habeas Corpus. By Stuart, Asst. J., That where an application for a writ of Habeas Corpui has been made to a judge in chambers and refused, judicial comity will prevent another judge from entertaining it. 9 L. C. Rep., p. 285, Ex parte Donaghe In Chambers, Quebec. HUISSIER. CoHRT Martial. 18T The petitioner was tried, by court niartiul, tor firing without orders on a crowd of people in tho streets of the city of Montreal, such conduct being insubordinate, uDSoldierliice, and to tho pr^udioe of good order and military discipline, and a writ of Habeas Corpus being moved to discharge him from tho custody of tho military authorities : Held, That it appearing that tho written charge .against the prisoner is one of felony, ho must first bo held to answer to tho constituted tribunals ia the colony, proceeding under tho common law of EnglAid, before a military court, under the mutiny act, and tho articles of war, can legally take cognizance of tho charge. 4 L. C. Rep., p. 467, Ex parte McCultock for JIabeat Corpus Ay 1 win, J. Held, That a writ of Ilabtas Corpus will not be granted in the case of a per- soD confined in jail on civil process {capias ad respondendum). 8 L. C. Rep., p. 216, Barber et al. vs. O'llara. S. 0. Montreal; Smith, J. Held, That a judge has no jurisdiction to liborato a person found guilty of simple larceny, and sentenced to bo imprisoned in the penitentiary for life, although it might appear that the sentence was illegal ; and that the judge ought therefore to abstain from giving an opinion upon the l^ality or illegality of such sentence. 6 L. C. Rep., p. 106, Ex parte Plante. In Chambers, Quebec; Bowen, C. J. Member of Parliament. Held, 1. On amotion for a writ of Habeas Corpus to produce the body of a person in custody (under a warrant of three members of the Executive Council for treasonable practices) founded upon " his privileges " as a member of the Provin- cial Parliament, two papers purporting to be two indentures of election, produced in support of the motion, are not sufficient evidence of his being such member, to entitle him to the benefit of tho writ. 2. A member of the Provincial Parliament held at Quebec, the place where he is resident, arrested eighteen days after its dissolution for *' treasonable practices " and during his confinement elected a member of a new parliament, is not entitled to privilege from such arrest by reason of his election to either parliament. Stuart's Rep., p. 1, Case of P. Bedard. K. B. Q., 1810. Deputy Returning Officer. See Parliament. HOLIDAY. See Bills and Notes dated on Sunday. HUISSIER. action bt. Held, That a Bailiff has no action for the price of goods sold en justice against » purchaser to whom they were delivered without payment. 5 L. C. Rep., p*. 394. Pelletier vs. Lajoie. 0. C-, Kamouraska ; Tasohereau, J. ■ii I'l f i ; f 188 UUIS8IER. Contempt. Held, That a bailiff who retains money he has levied, is liable to an attid). meat for contempt. Rex vs. Bead]/. K. B. Q., 1813. - -^ ^ DAMAGES AQAINST. Held, In an action of damages against a bailiff: 1, That under the 12tli Viot., 0. 38, sect. 79, a writ of «at«ie arrit, after judgment,in an appealable oaw may be made returnable in vacation. ■ * " * " '" 2. That it is the^uty of a bailiff executing such writ, to deliver it to the attor- ney or party from whom he received it, or to fyle it in court on or before the return day, without being specially requested to do so. '" ' 3. That having received the writ as bailiff to serve the same, he will not ti« permitted to urge the want of proof, in an action against him, of his being i bailiff 4. That proof of the amount due to defendant by a tiers aaiti, also proof of tbe service of the writ of attachment, and the payment of this amount to others thao the plaintiff, (the plaintiff's debt remaining unsatisfied), is sufficient proof of (fam- age to the extent of the amount due by such tiers saisi, without direct evideoce of defendant's insolvency. 1 L. C. Rep., p. 77. Lampson vs. Barrett C. C. Quebec ; Duval, J. DOMICILE. Held 1, That in a seizure of movables, the election of domicile by a bailiff ii a purtioular parish, without specifying in what part of it, is insufficient, and the seizure is consequently null. 2. That a notice of sale at the foot of the procis verbal of seizure, for a speci- fied day of the month, without mention of the year is null, although the pmii verbal is correctly dated : 2 Jurist, p. 276. Beaupri vs. Martel^ and Martt[ opp. S. C. Montreal ; Mondelet, J. Held, On certiorari, that a conviction against a bailiff for exacting more thai his legal fees, 'will be quashed, on the ground that the magistrate permitted an amendment in the information, and because no precise date of the offence was given. 6 L. C. Bep., p. 489. Ex parte Nutt, S. 0. Montreal ; Smith, Mon- delet, Chabot, J. j: * c . ^ V r i . PRESCRIPTION. Held, That the limitation of actions for bailiff's fees, under the l2th Vide. 44, is absolute ; and the oath of the defendant as to payment is not necessary. € L. C. Rep., p. 59. Lepaillfur vs. Scott et al. S. C. Montreal, Smith, Mondelet, J. RELATIVE OF. Held, That a bailiff may execute a writ {o{ fi-fa de bonis) against his brother- in-law, or other relative, notwithstanding the provisions of the 12th Vict., o. 38. 10 L. C. Rep., p. 184. Lemieux vs. Goti, and Goti, Opp. C. C. Quebec ; Stuart, J. Mil iniSBAND AND WTFB. 18» Held, That a writ of summons cannot legally bo served by the son of th* Plaintiff. Exception A la forme maintainod. 6 Jurist, p. 88. Bir$ vs. Aubertin, C, C. Montreal; Monk, J. i, . .•■ « Rktdrn. Held That where a writ of summons was returned into Court without anj return of sorvioo, an application by bailiiF to be allowed to mako a return will not be allowed, there being nothing before the court. Tidmarah vs. Stephen et al. Cond. Rep., p. 16. Held 1. That in his return of service of a motion (for a folle enchire) the Bailiff must certify that ho personally served such motion and a return " Je buisiicr jurd de, &c., certifio par le present sous moo serment d'offioe, avoi* lignifi^, &o.," is insufficient. 2. That the return must be upon the motion itself, and not upon a paper tnnozed to the motion. 12 L. C. Bep., p. 176. Jobin vs. Hamd, and Hatml, idjud. S. C. Quebec ; Stuart, J. Revendication against. Held, That revendication will lie against a bailiff who, under the authority of ,. I Justice of the Peace, holds in his custody the goods of the plaintiff, if the cauBO ,, of the detention bo a matter over which the justice has no jurisdiction. Pacaud n. Begin, K. B. Q., 1818. Sheriff's. Held, That an opposition iijtn d'annuller will not be maintained, on the ground that the bailiff making the seizure was not a sheriff's bailiff, the writ of execu- tion having been delivered to him by the sheriff. 8 L. C. Rep., p. 256. Freligh Ts. Stymour. S. C. Montreal ; Smith, J. Offers made to bailiff declared valid. Cons. Sup., No. 19. Z)e/enfe to bailiffs and judges against saisie arrit being made on billet ou pro- mate, sous seing privi. Cons Sup., No. 25. Bailiff condemned to costs for omitting the date of seizure. Prdvost^, No. 17. Bailiff, service of writ in a sealed envelope. See " Inscription de Faux." Bailiff's return, recourse against. See " Inscription de Faux." HUSBAND AND WIFE. Adultery. rj, ^ ■ •-■ , : ■ i >^. ,,. ■■ ■ ■ . -■■■ - -- " Held, 1. That adultery of a wife during her marriage cannot be set up by the heir to cause her to lose her rights in the community. 2. It can only be set up by the husband, and if he has taken no steps to have her declared deprived of , her rights, the heir cannot do so. 3. That absence of the wife from the conjugal domicile for legitimate cause will not deprive her of her rights, after the death of her husband. 4. That the fact of the husbapd keeping a concubine in his house, is suoH cause, and the wife may live separate from him, and her absence, even at hi» 190 HUSBAND AND WIFB. I ;i5ii i * li» i] death-bed, is justified thereby. 5 Jurist, p. 257, Gadhoit vs. Bonnier Ht Laplante. Held, In an action en separation de corps et de bieng where the husband seta tip adultery, that the separation will be granted on proof of sevices, but the wife will be deprived of her matrimonial rights. G. ys. L. S. C. Montreal ; Cond. Kep., p. 71, . See Separation, Infra. Aut; orization. A married woman cannot sue as a marchande pubKque without her husband. RoUand, C. J., Day, Smith, J. Cond. Rep., p. 60. So also in Young vs. Feehan. K. B. Q. 1813. Held, That a wife can bind her husband for that which relates to her house- hold ; where, therefore, they live together, and keep a boarding house, evidence of payment to the wife, of a sum due for board and lodging, is evidence of payment to the husband. Fortier vs. La force. K. B. Q. 1821. Held, That the express authorization of the husband to his wife, separk de biens, to become bound as his surety, is sufficiently proved by a notarial deed signed by them, in the beginning of which the wife appear?, with other creditors of her husband, and is declared to be " autorisie en justice and othenrise " hereby specially authorized by her husband, testified by his signature thereto '' as party of the first part, and also appears, with another as surety for her bus. band, and as party of the fourth part, although no words of authorization are contained in that part of the deed where they appear, or where she binds herself as such surety. 5 L. C. Rep., p. 320, Joseph, Petr., vs. Leslie. 0pp., and Auldjo, Int«r. S. C. Montreal; Smith, Vanfelson, Mondelet, J. Held, That a married woman, although separated as to property, and having the administration of her property, cannot, without the express authority of her husband, validly do anything tending to. affect and hypothecate her real property. 1 Rev. de Jur.,p. 406, Hertel de Rouville'A.Y^., vs. The Commercial Bank of the M. D. Resp. ner, J. 10*6. In Appeal ; Stuart, C. J., Bowen, Bedard, Mondelet, Gaird- Authorization — Lesion. Held, 1. That a married woman (commune en biens) and a minor, who after- wards renounced the community, may, under the authority of her husband, ratify a deed of exchange, made by the husband only, of a property liable to her douaire prifix and reprises, such rights being of a movable nature only. 2. That the authority of the husband for the purpose of this deed of ratifica- tion, is sufficiently apparent by the declaration of the wife that she is *' duement assisU et d'abondant autorisie " without stating by whom, the husband being a party to the deed and declaring, after the reading thereof, that he cannot sign. 3. That upon a deed of exchange .in like cases, there cannot be lesion with respect to the wife, the mortgage for her matrimonial rights being transferred from one property to another. 5. That in the case submitted, there was no fraud with respect tC' the wifei HUSBAND AND WIFE. 191 it her husband. 5 is '' duement 10 L. C. Bep., P' 157, Mitrissi et al. App., Brault, Resp. In Appeal ; Aylwin, PuT»l, Meredith, Bruneau, J.; Guy, J., dissenting. Same caae, 4 Jurist, p. 60. • ' Authorization — Domicile. * Held, 1. That the rights of husband and wife domiciliated, and married itt Lower Canada, are regulated by the law of Lower Canada, although they fix their residence afterwards in a foreign country. 2. That a sate by a woman so married, made in the state of New York, jointly with her husband, but without statement of authorization on his part, of im- movables situated in Lower Canada, is absolutely null and void, as well under the statut personnel in respect to the wife's rights', as under the statut reel as to immovables, although by the law of the State of New York no such authorization is necessary there. 11 L. C. Rep., p. 254, Laviolette, App., Martin^ Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Bruneau, J. Same case in the S. C. See 2 Jurist, p. 61. In Appeal ; See 5 Jurist, p. 211. Held, That a married woman may also set forth in her declaration specially that she is authorized to sue alone (if she does so sue) and must state particularly the means by which her incapacity to sue without her husband has been removed. Perrmlt vs. Cuvillier, K. B. Q. 1817. AuTHOBizATioN as to notcs. See Bills and Notes of married women. COMMUNAUTfi. Held, 1. That there is no community of property between parties domiciled, and married in England, who have removed to Lower Canada and died there. 3 Rev. de Jur., p. 255, Rogers et al. vs. Rogers. Q. B. Montreal ; 1848. Held, That a widow for a debt due to her by the communauti, cannot support an hypothecary action against the detent eur of her husband's propres without proving that the communauti cannot satisfy her demand. Hausserman vs. Cas- gmin. K. B. Q. 1817. Held, That a widow, as chef de la communauti continuee, may, in a default action, have judgment for the amount of an obligation to her and her husband jointly. Hausseman vs. Lcvesque. K. B. Q. 1813. . Held, That a widow, commune en Mens and executrix of her husband's will, may maintain an action, after his decease, for a debt mobiliaire due to their communauti. Drouin vs. BeauUeu. K. B. Q. 1820. Held, That a widower may, in like case, maintain a similar action. Blouin vs. Lehrun. K. B. Q. 1821. Held, That the communauti de manage enjoys the benefit of the rents, issues and profits, of the propres on either side, and is therefore bound to pay the rentes constituies with which they are charged during its continuance, and an action for their amount will therefore lie. Girard vs. Lemievx. K. B. Q. 1820. Held, On a defense en droit to an action for a specific sum as the proceeds of a communduti between the plaintiff and his late wife, that the action should have been an action of partage, and action dismissed. 6 L, C. Bep., p. 475, %«w vs. Dupuis. S. 0. Montreal ; Day, Smith, J. |; ll p ; 1 i u 1 . ■ ! 1 ■ * . I I, ! V. ' ll 192 HUSBAND AND WIN. The r«al estate of a communavU formerly existing between defendant and h» late wife, was sold by the sheriff, in an action by plaintiff representing the baUkitr de fonds, and defandant was condemned personally and as tutor, jointly and geverally, to pay one half of the capital with interest and costs. The children ai representing their mother, intervened by a tutor ad hoc, and contested plaintiff'i oollocation, on the ground that one half of the moneys belonged to them and that they were only liable for one half of the capital and interest, and not for anj costs. Held, That the contestation was unfounded. 11 L. C. Rep., p. 79, D Smith, Mondelet, J. Held, That a marriage contract may, in Canada, be valid under certain cir- cumstances, although it is not regularly executed as a notarial acte, and is in fact no more than an acte sous seign privi signed by the contracting parties in pre- sence of a notary, and left in his custody and keeping. Hausseman vs. Perrault. K. B. Q. 1814. Held, That a clause in a marriage contract that " the parties take one another " with the property and rights to each of them respectively belonging, and such " as may hereafter accrue, of what nature soever, which said property, movable " or immovable, shall enter into the community," is a covenant of ameubliste- ment of all the property belonging to the parties, notwithstanding a subsequent clause of realization, and that consequently the customary dower cannot be claimed oi^t of the husband's jjroprcs. 4 L. C. Rep., p. 436, Moreau vs. Matthews and Fisher. S. C. Montreal ; Day, Mondelet, J. ; Vanfelson, J., dissenting. See report of this case. 5 L. G. Rep., p. 325. Held, That an action against husband and wife for a debt due by the wife previous to her marriage, will be dismissed on demurrer, after plea by the wife that she is sued as commtine, when, in fact, she was siparie de bicns by marriage contract produced. 6 L. C. Rep., p. 485, Oagnier vs. Crevier et al. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That in the case of a marriage contract, with a covenant of ameublistt- ment and a clause of realization in the event of renunciation of the community HUSBAND AND WIFE. 195 by the wife, the wife separated as to property cannot claim, by way of repriteu, the enjoyment of the proceeds of the sale of an immovable given by the mother to her adopted daughter and her husband, during the community, with condition that such property could not be seized, but wouid serve to procure aliment. 2. That the property given by such donation does not become a jyropre of tb& wife. 3. That the report of the notary awarding the same to the wife, and the judgment homologating such report, is not binding upon third parties contesting the claim of the wife. 4. That in the case submitted, the respondents had a right to be collocated in preference to the appellant. 11 L. C. Rep., p. 7, Jarry, App., vs. The Tru$t and Loan Company, Resp. In Appeal; Lafontaine, C. J., Aylwin, Daval, Meredith, Mondelet, J. Held, That to establish a siparation de hiens the wife must stipulate, in the marriage contract, for the gestion and administration of her property. 1 Jurist, p. 164, Wilson vs. Pamcau,, and Simard, 0pp. S. C. Montreal; Day, Mon- delet, Chabot, J. Held, In an hypothecary action for a douaire prijtx constituted in favor of plaintiff's mother, that a tiers detenteur who acquired the property previous to the 1st Nov., 1844, cannot set up the non-r^istration of the contract of marriage previous to the (1st Nov. 1844) date of registration fixed by the 4th Vict., c. 30, sect. 4. 1 Rev. de Jur., p. 146, Lauzon et al. vs. Belanger. C. C. Terrebonne ; Mondelet, J. 1845. As to the validity of a clause in a contract of marriage stipulating that the marriage rights of the parties should be governed by the laws and customs of Great Britain, and whether such stipulation be not too vague and indefinite. See 2 Rev. de Jur., p. 431, Wilson, App., vs. Wilson, Resp. In Appeal; 1840. Marriage, Contract, Fraud in. See Fraud. Renunciation. Held, 1. That a woman, sous puissance de mari, cannot validly renounce to a hypoth&que in her favor on real estate belonging to her husband, for a rente viagire given by her contract of marriage in lieu of dower. 2. That such renunciation is in contravention of the 4th Vict., c. 30, sect. 36, itf being an indirect cautlonnement. 3 Jurist, p. 324, Russell vs. Fournier, and Rivet, 0pp. S. C. Montreal ; Smith, J. Separation. Held, That a wife siparie de hiens, by her marriage contract, may sue for the preservation of her personal estate, without th3 assistance or authority of her husband. 3 L. C Rep., p. 132, Gary vs. Ryland, and Gore, 0pp. S. C. Quebec, Bacquet, Duval, J. Held, That in general, nothing less than future danger to life and limb will snp^ft an action en siparation de corps, yet under peculiar circumstances, such as disparity of age, if the general conduct of the husband exhibits violent brest- .j :*^ •'■ft :aranV>ra de corps etde Mens, a doctor's bill for attend- ance on the plaintiff, was properly charged as a debt due by the communauti. 6 L. C. Rep., p. 474, Jannot\a. Allard. S. C Montreal; Day, Smith, Monde- lot, J. Held. On demurrer, 1. That a contestation of an opposition hfin d'annvller, founded on a judgment en siparation de Mens which attacks the validity of the grounds on which such judgment en separation was rendered, is bad. 2. That one count in a plei may bj demurred to, although the remaining counts are good. 10 L. C. Rep., p. 206, Jtouth vs. McGuire, and McGuireet al Oppa. S. C. Quebec; Bowen, J. Hel ], Th:it a creditor of the husband is not entitled to contest a demand en siparation de Mens by the wife, and can intervene in such action only for the preservation of his rights. 10 L. C. Rep , p. 375, Marchand, A^pp , Lamirande^ Resp. In Appeal; Ijufontaine, G. J., Aylwin, Duval, Meredith, J. Held, That in an action against a married woman as niparie des Mens, the production of notarial deeds, in which she takes the quality of /emme sipnrie de Mens from her husband, is not sufficient evidence of such separation, if the separation is denied by the plea. 11 L. C. Rep., p. 118, Wheeler et al. vs. Burkitt et al. S. C. Montreal ; Monk, J. Held, That the renunciation to the communauti duly insinuated is a valid execution of a judgment en siparation de Mens. 1 Jurist, p. 273, Sinical, App., Labelle el al., Resp. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That an action against husband and wife to recover the price of goods sold and delivered to a woman separated as t > property from her husband, will not be maintained without proof that the husband expressly authorized the purchase by the wife. 3 Jurist, p. 121, Benjamin et al. vs. Clarke et vir. S. C. Montreal ; Smith, J. Held, 1. That service of a writ of summons on a woman separated as to pro- perty, at her hu-band's domicile, during his temporary absence, is valid. 2. That service must be made by delivering the writ to defendant personally, •t her domicile to some person for her, and the return must state in terms of HUSBAND AMD WIFB. 197 the ordinance of 1667, title 2, art. 3, to Mrhoni it was so delivered. 2 Jurist, p, 154, The Trust and Loan Company of U. 0. vs. McKay et vir. S. C. Mon- treal; Bad};ley, J. Held, That a motion for a /tile enchire against a woman separated as to pro- perty from her husband, and the duly authorized adjudlcataire of the lands sold, will be dismissed with costs, if notice of such motion is not given to the hubband. 12 L. C. Rep., p. 33, Jordan, App., vs. Ladriere dit Flamand, Resp. In Appeal ; Lafontaine, C J., Aylwin, Duval, Meredith, Mondelet, J. See also in Jurry, App., The Trust and Loan Company of U. C. In Appeal ; 12L. C. Rep., p. 421. Held, That where an action en siparation de corps et de liens is brought by a wife, but not sustained by proof, her action will be dismissed with costs ; and, on proof of open and continuous adultery and prostitution on her part, the inci- dental demand of the husband for siparation de corps will be maintained and the children placed under the care of the father. 12 L. G. Rep., p. 81, Beaucaire Y8. Lepage. S. C. Montreal ; Badgley, J. Held, That in the case submitted, the husband, the attorney under a general power of his wife siptr6e de biens, and signin;; as agent, is supposed to act in the name of his wife, it being established that by reason of his position and his insol- vency, he could not contract in his own name, and that the work undertaken was made in the tailoring shop kept in the name of his wife. 12 L. C. Rep., p. 454, Oiltner et vir. App., Gorrie, Resp. In Appeal ; Lafontaine, C. J., Duval, Mere- dith, J. ; Mondelet, J., dissenting. Held, Where a defendant who was sued as siparie de blens from her husband, pleaded she was not so separated, such allegation, in the plea, will not be struck out on motion of the plaintiff, because the allegation is a matter of exception tk la forme. 4 Jurist, p. 309, Wheeler et al. vs. Burkitt et al. S. C. Montreal; Badgley, J. Held, In same case. That the plaintiff was bound to prove a separation, either by marriage contract, or by judicial sentence. lb., p. 309. Monk, J. In this case a wife had obtained a siparation de biens, and a transaction was entered into, suspending the execution of the judgment on certain conditions, and amongst others, on the payment by the husband of an alimentary allowance to the wife, which payment was made for a time, but discontinued. Held, That the transaction only suspended the execution of the judgment, but did not destroy or annul it; and that the right of executing the judgment could only be barred by the lapse of 30 years. 1 Rev. de Jur., p. 321, Bender, App., Jacobs, Resp. In Appeal; Bowen, Panet, Bedard, Gairdncr, J. ; Stuart, C.J. , dissenting. Judgment en siparation de biens, and declaring valid a seizure made by the wife. Pr^vostd, No. 87. i SsPARATioN — Seizure. Held, That a wife, in case of her husband's insolvency, cannot sue by her tutor for what she has brought in marriage. Her remedy is by an action en siparation de biens in her own name. Meloin vs. Ireland. K. B. Q. 1820. .' t 1- i M ii ^'t liJ .l.;.r||I!lf., ' 1 1 li-i'<. ^7? i ' \ , i Ii m 4 198 HUSBAND AND WIFE. Held, That in an action for separation de corps et de biens, a writ of saisie ga^erie will be ordered against the estate of the husband, on an affidavit that ho is making away with, and secreting his estate and effects, with intent to frustrate plaintiff's action and rights. 11 L. C. Rep., p. 490, Idler vs. Clarke. 8. C. Montreal ; Smith, J. Judgment allowing a voluntary separation de corps et de biens reversed. Pr^- Tostd, No. 126. Wifb-Penalty. Held, That the husband, although absent, is liable for the penalty under the Lower Canada Game Act, 22nd Vict., c. 103, on the ground that his wife, act- ing as his agent in the ordinary course of his business, must bo presumed to have had his authority for the illegal act complained of. 5 Jurist, p. 104, Regina ex relatione Campbell vs. 0' Donaghue. Quebec ; Stuart, J. Husband's bequest of Wife's share in the Community. See Will and Tkstament. Husband's sale to an Opposant whom he aflerwards marries, when fraudulent. See Fraud. Wife, Interrogatories upon. See Interrogatories sur/aits et articles, motion for. Husband and Wife, Service upon. See Inscription de Faux. Wife Adjudicataire. See Decret, Folle Enchere. " Contrainte against. See Contrainte par Corps, Wife. Husband and Wife, Bills and Notes. See Bills and Notes of married women. Husband, Interrogatories. See Interrogatories. " Adultery. See Dower. 1 *■ :lf Ml HARBOUR MASTER QUEBEC. Powers of. See Ships and Shipping. HYPOTHEQUE. SocoAQE Lands. Held, That a general hypothique does not affect lands held in free and com- mon Boccage. Paterson et al., App., McCallum et al.. Reap. In Appeal, 17th Nov., 1830. See Action Hypothecary. • " MoRTQAGE, Registration. Divisibility of. St,e Garantib, Divisibility of. \ IHPENSBS BT AMELIORATIONS. 199 IMPENSES ET AMELIORATIONS. Held, That on the distribution of moneys from the sale of an immoTable, a ventilation will bo ordered, and the value of the immovable /oncfg will be divided between the creditors of the vendor, and the value of the impensea et amiliorationa between the creditors of the purchaser. 1 L. C. Rep., p. 173. Bedard vs. Dougal and 0pp. S. C. Quebec ; Bowen, G. J. ; Baoquet, Meredith, J. Held, That a defendant, in an hypothecary action, cannot demand to be paid for his ameliorations before he be obliged to abandon the property, but he may demand security that the property will be sold for an amount sufficient to pay suoh ameliorations. 4 L. C. Rep., p. 358, Withall vs. Ellis. S. C. Quebec ] Bowen, C. J., Duval, Meredith, J. Held, That a lessee of land cannot set up as against his lessor, plaintiff in a petitory action, ameliorations made by the lessee on the land sought to be recovered. 5 L. C. Rop., p. 96, Peltier vs. Laricheliire. S. C. Montreal ; Day, Smith, Vanfelson, J. In Petitory Action. Held, 1. That a defendant who has made permanent improvements on a lot, has a right to be indemnified to the extent of the increased value thereby given to the lot, before being compelled to abandon it. 2. That a defendant in possession of the rights of the original lessee of the crown, under a lease for 21 years from the 12th Feb., 1818, is entitled to hold possession until the expiry of the lease (12th Feb., 1839) and the plaintiff is only entitled to the rents, issues, and profits of the lot, from the last mentioned date, notwithstanding he holds the lot by a transfer made in 1835, of the rights of a patentee of the crown under letters patent of 1827. 3. That from the proof in this cose, the court below should have ordered an esq>ertise to ascertain the value of the ameliorations and the amount of the rents, issues, and profits ; such ameliorations to be valued from the date of the lease, and the rents, issues, and profits from the expiry thereof, the experts also to ascertain the value of the lot apart from the increased value given to it, by the ameliorations. 6. L. G. Rep., p. 294, Lavyrence, App., Stuart, Resp. In Appeal ; Lafontaine, C. J., Duval, Garon, J. ; Aylwin, J., dissenting. Held, 1. That a squatter who has made substantial improvements (itnpenses tt amdiorations utiles) on a lot occupied by him, without the consent of the pro- prietor, b entitled to judgment against the proprietor for the excess of the value of such improvements beyond the rents, issues, and profits, and to retain posses- non until paid for such excess. 2. That the only legal mode of ascertaining the value of such improvements in a contested petitory action is by an expertise. 3. That the eldest son, as heir at law of his father who died intestate, is seized, u proprietor, of soccage lands by virtue of the right of primogeniture as one of the incidents of that tenure, and can maintain a petitory action for such lands. $ L. C. Rep., p. 113, Sttiart vs. Eaton. G. G. Stanstead; Short, J. :*ri( :! 1! i \ ii> " I ■ . . 1 ■ ■ . < I /y////v<_/^//v 7/y/^. 200 INJUNCTION. Held, That in % petitory action, the posseMor in bad faith hai no lien, irwi dt rttention, upon the land for his improvements. 1 Jurist, p. 3, Lane tttU,n. Deloge. 8. C. Montreal ; Day, Smith, Badgley, J. Impinsbs. 0, Seymour vs. Horntr (till, S. 0. Montreal; Monk, J. Held, That a party will not bo allowed, unless on oavso shown, to inscribe en faux against a bailiff's return later than four days after tho return. 6 Jurist, p. 243, Pirrif vs. Milne, and T. S. S. C. Montreal ; Monk, J. Held, That the return of a bailiff of service made by him of a true copy of a jud;,'ment, when such copy was certified by attorneys, and not by tho protho- notary, is not a /atix so known and recognized by law, and moi/ins de faux as to 8uoh certificate and return are inadmissible and irrelevant. Perri/ vs. Milne, tnd T. S, S. C. Montreal ; Badgley, J. Note ordered to bo deposited in Court. Prevostd, No. 36. When Maintainable. Held, That an inscription de faux oannot bo maintained against a notarial copy of an instrument containing a slight alteration, us in the case submitted, in the word parties being altered so as to make it parti/. 5 L. C. Rep., p. 430, Ualpin, App., Ryan, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, 1. That in an action to set aside a will for suggestion, difaut de liberty, &c., the plaintiff, who has discovered, since the institution of the action, grounds otfaussete, may, by motion, pray to bo allowed to inscribe en faux against the acte he has himself produced. 2. That the inscription de/mix may also be brought by a direct aotion. 6 I «L, C. Rep., p. 17, Perrault, App., Simurdet al., Resp. In Appeal ; Lafontaine, C, J,, Aylwin, Duval, Caron, J. Held, In same ease in Appeal, 3. That in the case of an inscription defaux and after dosing of the enquite, tho plaintiff en faux is entitled to amend his •myens de/avx by adding new moyens brought out by the evidence. 6 L. C. Rep., p. 24. Held, That a sheriff's return can only be contested by inscription de faux, 1 L. C. Rep., p. 154, Lesperance vs. Allard et vir. In Appeal ; Stuart, C. J., Rolland, Panet, Aylwin, J. So in Belanger vs. Holmes. K. B. Q., 1820. Held, That where a defendant, opposant, fyled a petition en inscription d^/aux and did not move to set aside the inscription for hearing on the merits of the opposition, he thereby virtually renounced all pretensions to proceed on his petition en faux. 1 L. C. Rep., p. 305, Phillips vs. Hart. S. C. Three Rivers ; Bowen, C. J., Mondelet, Vanfelson, J. Held, 1. That a bailiff's return is an authentic acte, the validity of which can only be impugned by an inscription de faux. i ' 'I 204 INSURANCE. 2. No proof against such return will be permitted without an inscription it faux. 3. That service of one copy of a writ and declaration is suflScient to briii» husband and wif ? siparie de hie.ns before the Court. 9 L. 0. Rep., p. 455 Trust and Loin Co., App., McKii/, Resp. In Appeal ; Lafontaine, C. J Aylwin, Duval, Meredith, Mondelet, J. Aa to inscription de/aux in case of variance between original and copy of writ. See Pleadings, Exception & la forme. INSINUATION. See Donation, Insinuation. " Damages, Slander. INSOLVENCY. 1 ■ « Ml See Fraud, Insolvency. INSURANCE. Against Fire. In an action brought by an insurance ccmpany against the owner and master of a steamer on the St. Lawrence, the plaintiff alleged in eflFect that the corapanj had effected an insurance on the parish church and sacristy of Bouchervilie for £3300, that by the negligence of the defendant fire had been communicated, bj sparks from the chimney of the steamer, to the adjacent houses, and thence to tie church, causing damage to an extent beyond the sura insured ; that this insn ranee was paid to the extent of £3045 15s. by the company to the cur6 and the marguillitr en charge, who acknowledged the receipt of the money, and in tie same acte assigned to plaintiffs " all right, title, interest, property, claim, and " demand whatsoever," which they or the parish could be supposed to have in the sum so paid. Plea general issue. After evidence adduced, it was helil (Rolland, C. J., Gale, Day, J.) in the Queen's Bench, Montreal : That the company was subrogated in the rights of the parish, and had ai action against the owners of the boat and their agents, and that negligence and default were proved. Judgment for the sum paid to the Fabrique. Held, In the Provincial Court of Appeal, Stuart, C. J., Bowen, Panet, Bedard, Mondelet, Gairdner, J., That the action, as brought, imported only » I demand by the company in their own right as insurers, and not as assignees of the parish, that the assignment was not made by parties competent in law t« make it, and was made only of a part of the damage claimed by the Fabriqw, and that no subrogation was alleged or proved. Held, In the Privy Council, 1. That the declaration was substantially gw INSURANCE. 205 wd disclosed a derivative title, under the Fabrique, of a definite part of the damage, and that such damage was caused by the neglect of the defendant. 2. That if the title set up were to be considered merely as an assignment fMji'^n transport from the cur4 and marguillier, it would clearly be bad, the con- jent of the bureau being necessary to its validity. 3. That the title set up was one of subrogation, and was validly made by the party entitled to receive the money, and give a discharge. 4. That insurers against fire have a legal right, on paying the loss, to be sub- rogated in the actions of the insured against the originators of the fire and loss. 6. That the plaintiffs, who, on payment of the loss, were subrogated to a part of the claim for damages, can sue without joining the Fabrique as co-plaintiffs, sotnithstanding the reasonableness of the rule that the defendants should not be liable to a double action, inasmuch as this ground of defence is not available under the plea of not guilty, or general denial. Judgment in Appeal reversed. Held, in the Queen's Bench in same case, Holland, C. J., Gale, Day, J., 1. That interest is an objection to the credibility, and not to the competency of a witness. 2. That the curd ad marguillier, although members of the fabrique or corpo- ration of the parish, were competent witnesses in the cause. 1 L. C. Rep., p. 223, The Quebec Fire Assurance Company vs. Molson et al. An action Was brought on a policy of insurance against fire, for loss on goods in a building and premises described as " bounded in rear by a stone building " covered with tin, occupied by the assured as a store, stable, and coach-house, " and by a yard, in which yard there was being erected a first class store, which " would communicate with the building insured (carpenters allowed to be at " work for one month)." The plea set forth, 1. That the building in rear was fraudulently described as covered with tin, whereas it was covered with wood ; that the fire originated in this rear store, and communicated by the door, which was falsely and fraudulently omitted to be mentioned at the effecting of the insurance ; and that by means of such false and fraudulent representations and suppression the plaintiff had no right of action. 2, That the carpenters were at work more than a month. The policy was dated the 2l8t June the fire occurring on the 27th July, 1850. Under the Jury Law, 14th and 15th Vict., o. 89, questions were submitted to the jury, under which the jury found : 1. The value of the goods insured. 2. Amount of loss. 3. Quest. " Was the description given by the insured of the aforesaid building " containing the said goods, wares, and merchandise, correct ? If not, in what " particular was it incorrect ? " Ans. Yes. 4. Quest. " Was there, at the time of the aforesaid fire, a door or aperture " cotninnnicating between the stone store given as a boundary in the said policy, " and another store in the yard in the rear of the said building ? Ans. " Yes, there was a door as mentioned in this interrogatory." 5. Found that the fire originated in a brick building in the rear adjoining the «tone hangar, and communicated from one of the said hangars to the other bj the door mentioned. *r! X<-'<\^ K 1: I ' jnij 5 « iM: i^ 206 INSURANCE. 6. Qacst. " Did this door or aperture alter or increase the risk in the said policy contained ? " Ans. " The door increased the risk, as stipulated in the said policy of insu- ranee." Judgment. The Court " having heard the parties upon the plaintiff's motion that judgment be rendered pursuant to said verdict," considering that it was established by the verdict that there was a door not disclosed, that this door increased the risk, and that there was a brick building covered with wood betweeo the building in which the goods were, and the stone hangar covered with tin of the existence of which no mention is made in the policy, doth dismiss said action with costs. 2 L. C. Rep., p. 200, Casei/ vs. Goldsmid et al. S. G. Que- bec ; Bowen, C. J., Duval, Meredith, J. Held, In Appeal ; 1. That no inference prejudicial to the insured could be drawn from the answers as given. 2. That there was nothing in the verdict to show that the existence of the door was not declared, and that it was the duty of the insurers to prove the fraud and deceit alleged. 3. That it was the duty of the insurers, if there was ambiguity or error in the questions or answers, to move for a new trial. 4. That not having so moved they must abide by the verdict, and no other question can arise than " whether the Respondents have made out their plea in " evidence, and this Court is of opinion that they have not." Judgment for £429 10s. 7d., and costs. 4 L. C. Rep., p. 107. RoUand, Panet, Aylwin, Mondelet, J. ; Aylwin, dissenting, would have sent the case back to be tried by another jury, the fraud and concealment being omitted in the questions. Average. Held, That in the case of an insurance against fire effected by the inspector of ashes, Montreal, as required by law, on ashes (in the inspection stores) belonging to various persons, which were damaged by water and were subsequently consumed by fire, the inspectors are justified in so apportioning the insurance, as that each of the parties interested is bound to bear his proportion of the reduction made on the amount insured by reason of the loss caused by water, inasmuch at there were no means of ascertaining to whom the ashes belonged which were so damaged by water. 12 L. C. Rep., p. 337, Gilmour et al. vs. Dyde et al. S. C. Montreal ; Smith, J. Construction of Policy. Held, That policies of insurance are to be constructed by the same rules as other instruments. Scott vs. Quebec Fire Insurance Company. K. B. Q. 1821. s Certificate — Condition Precedent. Held, That the furnishing of a certificate (as required by a condition of the policy against fire) of three respectable persons, that they believed that the lost had not occurred by fraud, is a condition precedent, without compliance ynSn INSURANCE. 20T wWeh the insured cannot recover. 6 Jurist, p. 89, Racine vs. The Equitable (jgmpany. S. C. Montreal ; Bcrthelot, J. Certificate of Loss. Held, 1. That the Court of Appeals may hear an objection not argued in the court of original jurisdiction. 2. That if a condition in a fire policy requires, in the event of loss, and before payment thereof, a certificate, to bb procured under the hand of a magistrate or gvorn notary of the city or district, importing that they are acquainted with the character and circumstances of the persons insured, and do know, or verily believe, that they have really and by misfortune, without fraud, sustained by the fire loss or damage to the amount therein mentioned, such certificate is a condition pre- cedent to a recovery of any loss against the insurers on the policy, and if a cer> tificate be procured in which a knowledge or belief of the amount of the loss is omitted, it will be insufficient. Stuart's Rep., p. 354, Scott et at, App., The Phmix Assurance Company, Resp. In Appeal ; May, 1829. Description of Property. Held, 1. That the error of an insurance company's agent, in making and trans- aiitting to the head office a diagram of the buildings insured, by means of which the premises are described in the policy as " detached " instead of as " connected with other buildings" cannot deprive the insured of his remedy on the policy. 2. That to a plea setting up that the policy was obtained through false and frandolent misrepresentations as to the buildings being " detached " and as to the number of occupants, and that thereby the conditions of the policy were broken, and the plaintiff deprived of all remedy under it, the plaintiff is entitled to answer, denying such misrepresentations, and alleging the visits of the com- pany's agent to the insured premises, and his doings as to the making and transmitting of an erroneous diagram. 9 L. C. Rep., p. 61, Somers vs. The Athenoeum Insurance Company. S. C. Montreal ; Smith, J. Same case, 3 Jurist, p. 67. Held, 1. That the insurance effected in this case on a certain quantity of coals in a yard, covered not only the coals deposited at the date of the insurance, bat those deposited since. 2. That it covers risk arising from spontaneous combustion. 9 L. C. Rep., p. 448, B. A. Insurance Company, App., Joseph, Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Caron, J. Double Insurance. Held, That where by the by-laws of an insurance company indorsed on the policy, notice of a second insurance must be given and endorsed upon such policy aptine de nulliti, that a notice of second insurance given after the fire, and as a consequence not endorsed on the policy, is sufficient. 1 Jurist, p. 197. Sovr prat vs. Mutual Insurance Company, Chambly. S. C Montreal ; Day, Mon- delet, Chabot, J. fi :• ' 1 « ■] 11 .1-!.: M -1 208 INSURANCB. m Hjld, That the condition of notice usually indorsed on policies of fire ingg. ranee, as to double insurance, will not be held to be waived by the company if itheir agent, on being notified of such double insurance, after the fire, made no specific objection to the claim of the assured on that ground. 1 Jurist, p. 278 Ativdl vs. The Western Assurance Company. S. C. Montreal ; Day, Smith Mondelet, J. ; Day, J., dissenting. Confirmed in Appeal. See 2 Jurist, p. 181, Held, That the mere substitution of one office for another in a case of fire insurance, docs not necessitate the giving of notice, as in a case of new or double insurance. 1 Jurist, p. 284, Pacaud vs. The Monarch Insurance Company S. C. Montreal ; Day, Smith, Mondelet, J. Held, 1. That the 23rd section of the Act 4 Wm. 4, c. 33, respecting double insurances on houses and buildngs does not apply to insurances on goods. 2. That an endorsement on the policy under the said act, consenting to the removal of the goods insured from the building described in the policy to another building, and signed by the secretary, is binding on the company. 3 Jurist, p. 2, Chalmers vs. The Mutual Insurance of Stanstead and Sherbrooke Countia. In Appeal ; Lafontaine, C. J., Duval, Caron, J. ; Aylwin, J., dissenting. Fraud in. Hold, That the condition of a policy imposing the penalty of a forfeiture of all remedy upon it, in case of a fraudulent overcharge, is not comminatory, bul -will be enforced if the fraudulent overcharge be proved. 3 Jurist, p. 162, Thomat *t al. vs. The Times and Beacon Insurance Company. S. C. Montreal ; Smith, J. Insurable Interest — Consignee. Held, I. That an indorsement, upon an open policy, of a cargo for insurance, is inc3mplete if the name of the vessel by which such cargo is shipped is in blank, but it is perfected by a notice to the insurers of the name of the vessel, whether they fill up the blank or not. 2. The provision in a policy that a vessel must not be below "class B 1" without reference to any particular classification, will not render it necessary that such vessel should not be below class B 1.. in a classification of vesscls.made •on behalf of lake underwriters and for their information, but it will be construed as meaning that the vessel must not be below the class of vessels recognized bj mariners as B 1 , if there be any such class. 3. A person who insures as agent for another cannot sue for indemnity for t loss in his own name, as principal. 4. And if a consignee sue for indemnity, under a policy in his own name, upon goods belonging to another and consigned to him, he must show an insurable interest in such goods to entitle him to recover, and he can only recover the amount of his interest. 5. The possession of the bill of lading is prima fade evidence of proprietor- ship, but it is insufficient to show an insurable interest in the consignee, if it bt «hown aliunde that he is not the proprietor of the goods. 6. To entitle a consignee to recover under a policy of insurance in his own name for goods lost or damaged in transitUy he must show a peouniary and ap- "^1, : i INSURANCE. 209 preciable interest in such goods, arising from a Hen upon them, which lien may bo for advances in respect of them, or for a general balance ; but, however created it must attach specifically upon the goods covered by the policy. 6 Jurist, p. 98 Ouiack vs. Mutual Insurance Company of Buffalo. S. C. Montreal ; Smith, J. Insurance, Marine. Held, 1. l?hat in an action on a marine policy of insurance, the plaintiff must prove that the loss accrued from some peril of the sea insured against. 2. That the mere fact that the goods were damaged by sea water to a trifling extent, does not constitute such proof. 3. That a survey of goods alleged to be damaged, made without notice to the underwriters, and followed by a sale at 9 o'clock a. m., on the second day after the survey, at which the claimant bought in the goods, is irregular, and such sale affords no criterion as to the extent of damage suffered. 4 Jurist, p. 23, The Sun Mutual Insurance Company vs. Damasse Masson et al., and E. contra. S. G. Montreal ; Monk, J. Loss — Value. Held, That in insurance against fire, the insurers must pay the whole of any loss which does not exceed the amount insured, although the goods insured be of greater value. Stuart's Rep., p. 174, Peddle vs. Quebec Fire Insurance Comr fany. K. B. Q. 1824. Held, That an insurance company is liable to a person whose stock in trade is insured, for the actual market value of such stock at the time of the fire, and not for the cost price thereof mei , or the sum which it may have cost the insurer to manufacture the stock, and this although the profits were not specifi> oally insured. 11 L. C. Rep., p. 190, The Equitable Company, App., vs. Quinn, Res. In Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. Notice op Loss. Held, 1. That in order to obtain a new trial on the ground of evidence, it must appear that the verdict is clearly against the evidence. 2. That the delay fixed by the regulations of an insurance company for giving notice of the fire and the circumstances connected with it, is not in all cases so fatal as to deprive a party who has not complied literally with the regulations, from all recourse. 1 Rev. de Jur. p. 113, Dill vs. The Quebec Assurance Com- pany. Q. B. Quebec ; Stuart, C. J., Panet, J. 1844. Of Debt — Loss. M. sells to L. a lot of land on a constituted rent of £60 per annum on a cifipf- tal of £1000, the purchaser, by the deed, binding himself to erect buildings on the lot, and to insure them to the extent of £400 as collateral security. The plaintiff, to whom the debt is transferred, insures the buildings to the extent of £600 to cover the constitut ; and whilst the policy is in force, thebiiild- ings are destroyed by fire, but are rebuilt and restored to their original Tftlua b^ tVg poroh'aser L. before aotion brought. ■■'l, s i, : » si' f f '■■i 1, i , -i ^ <, ■ . ' t M tMpUP 1 ' - 'm i: ■ '<■■ 1 ,,i:.: !. A: ..,'.■; J ) . 210 IN8URANCB. f n Held, 1. In an action by the insured, to recover tbe amount of the policy, that the insured could not recover, inasmuch as he had the same seouritT for the payment of the constUut as before the fire, and that no loss has beea occasioned by reason of which an action could be maintained. 2. That the principle that the contract of insurance is a contract of indemnity applies to this case, and is a bar to any recovery, there being no loss sastuined. 10 L. C. Rep., p. 8, Maihewion vs. Wettem Assurance Company. S. C. Mon- treal ; Smith, J. Same case, 4 Jurist, p. 57. On Life. Held, That the amount of a policy of insurance upon the husband's life, the premiums on which have been paid by him, and which has been received by the curator to his vacant estate, by reason of his insolvency, may nevertheless he claimed on behalf of the wife, by two trustees who accepted the donation of the amount of such policy made by the contract of marriage, for the purpose of pay- ing over the interest to the wife, and the principal to the children, notwithstand- ing that the donation and assignment were not noted in the books of the com> pany, notification having been given at a place other than the place where the insurance was effected. 9 L. C. Rep., p. 450, Ex parte Spiers and Attorney Oeiieral and pthers, claimants. S. C. Montreal; Monk, J. Policy — Insurable Interest. Held, 1. That a contract of insurance on real estate, against fire, may he made and proved without writing. 2. Thut a notarial transfer of a mortgage the subject of insurance, does not destroy the insurable interest then existing, a contre lettre sous setgnpnvi show- ing that the transfer ^as merely nominal. 3. That a clause in the acts constituting the charter of an incorporated insu- rance company, enacting, " that all policies of assurance whatever, made under *' the authority of this act (6th Vict., c. 22) which shall be subscribed by any " three directors of the said corporation, and countersigned by the secretary nnd '* manager, and shall be under th^ seal of the corporation, shall be binding upon " the corporation though not subscribed in the presence of a board of trustees, •' provided such policies be made and subscribed in conformity to a by-law of " the corporation," does not exclude other means of proving a contract of assu- rance made by them. 4. That interest on the amount assured may be awarded from the day of the loss. 8 L. C. Rep., p. 401, The Montreal Assurance Company, App., vs. Mo Oillioray, Resp. In Appeal : Lafontaioe, C. J., Duval, Caron, J. ; Aylwio, J., dissenting. Same case, 2 Jurist, p. 221. Held. In the Privy Council, That the appellantg, under the provision*? of iheir acts of incorporation, cannot make any contracts for fire insurance except by policy. 9 L. C. Rep., p. 483, Montreal Assurance Company, App., McGillir vray, Uesp. INSURANCE. 211 Held, That in the^ case submitted, inasmuch aa the appellants could only become liable to a party insured by a regular policy of insurance in writing and the judgment rendered against the company, founded on the verdict of a jury having been reversed in the Privy Council simply, the court will alter the judgment of reversal, and order the case to be remitted to the Superior Court with direc- tions to issue a venire de novo. 11 L. C. Rep., p. 325, The Montreal Atsurance Company, App., McGillivray, Resp. In the Privy Council ; Knight, Bruce, Turner, Coleridge, J. Representation — Warran ty. Held, 1. That letters written by the agent of the defendant, a fire assurance company, to his principals after the loss, cannot be used in evidence against the company. 2. That contemporaneous representations made by the insured to other insurers of the same subject, may be legally proved by the defendants. 3. That the loss under a policy which stipulated " That the loss or damages " shall be estimated according to the true and actual cost value of the property *< at. the time the loss shall happen " must be ascertained from proof of the money value of the subject in the existing market. 4. That the following words upon the face of the policy, stating the insurance to be " of the steamer Maliknff^ now lying in Tate's dock, Montreal, and intended " to navigate the St. Lawrence and lakes from Hamilton to Quebec, principally " as a freight boat, and to be laid up for the winter at a place to be approved of " by the company, who will not be liable for explosions, either by steam or gun- " powder," is a warranty and not a representation. 5. That such warranty not having been complied with by the insured, the policy is void, and an action for loss will be dismissed upon motion for judgment non obstante veredicto. 11 L. C. Rep., p. 128, Grant 'va. The uEtna Insurance Vumpnny. S. C. Montreal ; Badgley, J. Held, In Appeal, That whether the clause above cited be considered as a warranty or not, an action could not be maintained against the company, the vessel having never left the dock. 11 L. C. Rep., p 330, Grant, App., vs. The Etna Jtisurance Company, Resp. Aylwin, Duval, Meredith, Mondelet, J. ; Lafontaine, C. J., dissenting. Same case 5 Jurist, p. 285. Held in the Privy Council, 1. That the declaration in a policy of insurance to the effect that the vessel insured was " lying in Tate's dock, Montreal, and " intended to navigate the St. Lawrence and lakesfrom Haiijilton to Quebec, and " to be laid up for the winter in a place approved by the company," does not amount to a warranty that she shall so navigate. 2. That the words above recited meant that the assured intended to remove his vessel for the purpose of navigation, in the manner described, and that if he did, the policy should still be in force. Semble, That by the rule in England, a party, defendant to a suit, cannot make a motion for judgment non obstante veredicto, but that the practice in jury trials in Lower Canada, differing in many and important respects from th« I ' • 1 . ' :^^ ' ■O-Mj- ■ ■ iH I ■ ■ t i^:j'. .■■ lALL \-^''Mi^'d ^Jl_ 212 INTERDICTION. praotioe in England, their Lordships are always indisposed to interfere with the judgment of a colonial court on a question of its forms and practice. 12 L. C. Rep., p. 386, Grant, App., The jEtna Insurance Company, Resp. In the Privy Council ; Lord Kingsdown et al. Save case, 6 Jurist, p. 224. Subrogation op Vendee. Held, 1. That the vendor's interest in a fire policy, effected on real estate previous to a sale, passed by operation of law to the purchaser, the sale being notified to the insurance company. 2. That payment by the company to the vendor, on a loss accruing after such sale and notice, of a sum greater than the balance due on the prix de vente, enures to the benefit of the vendee as a discharge from such balance. 5 L. G. Rep., p. 487, Leclaire vs. Crapaer. S. C. Montreal; Day, Smith, Vanfelson,J. Same case, Gond. Rep., p. 18. Warranty in. Held, That policies of insurance are to be construed by the same rules as other instruments ; therefore where there is an express warranty, there is no room for implication of any kind. Stuart's Rep., p. 146, Scott vs. Quebec Fire Astu- ranee Company. K. B. Q., 1821. Insurance Company, as to trial by jury against. See Jury. IncIurance on consigned goods. See Execution, Tiers Saisi. " expertise in condition of policy. See Experts. 1 1 1 Lii INTERDICTION. Held, That an interdiction pour cause de prodigaliti may be suspended by the court. Ex parte Duchenau. K. B. Q. 1814. Held, That a curator to an interdicted person maybe removed by his consent and the consent of the relations ; or upon petition by the next of kin on sufficient cause, and on avis de parens without his consent. Ex relcftione Coti vs. Pagcot. K. B. Q. 1812. Held, That an attorney guilty of contempt in the face of the court, may be immediately interdicted. Ex parte Binet. K. B. Q. 1818. Held, That a judgment obtained by a person interdicted, by reason of insanity, (his curator not being a party to the suit) is null de plein droit. Sproat vs. Jhmiire. K. B. Q. 1819. Held, That the interdiction, and the appointment of a counsel thereupon, obtained at the instance of the party interdicted, are void with respect to a cre> ditor with whom the interdicted party contracted without his counsel, if the interdiction was not made known to the creditor, and was not inscribed upon the register of interdictions. 2 L. C. Rep., p. 489, Dechantal et ail. yB> Dechan- taL In Appeal: Stoart, 0. J., Rolland, Panet, Aylwio, J. INTEREST. INTEREST. 213 Held, That a promise to pay on dotnand £200 with interest, is a promise to pay interest from the date of the note. Baxter vs. Robimon. K. B. Q. 1816. Held, That upon a note where it is said " twelve months after date I promise " to pay £200 with six months' interest," no more than six months' interest before service of process can be allowed, but the plaintiff is entitled to interest from the date of the service. Beaviside vs. Mann. K. B. Q. 1817. Held, That no interest can be allowed upon a judgment for the arrears of one or more years rente constituie. Ouenet vs. Gendron. K. B. Q. 1818. Held, That service of process ad respondendum for a partnership debt is a demand as to all. If, therefore, process is served at different times on two or more, interest is due from the first service. Kogerson et al. vs. Thomas et al. K. B. Q. 1818. Held, That in an action for arrears of interest, interest upon the sum demanded may be awarded by the judgment. 2 L. G. Rep., p. 481, Anderson et al. vs. Dessaulea et al, S. C. Quebec, Bowen, C. J., dissenting ; Duval, Meredith, J. Held, 1. That in an obligation payable by instalments in one, two, three, four, and five years, sans intMtjusqu'd, Vichiance interest will be due on each instal- ment after it became due, without the necessity of any mise en demeure. 2. That partial payments will be imputed first on the interest, and secondly on the capital. 12 L. G. Rep., p. 280, i?ice e< a^., App., ^Aem, Resp. In Appeal: Lafontaine, G. J., Duval, Meredith, Mondelet, J. Same case 6 Jurist, p. 201 . Held, That interest runs on a note payable on demand from the day of its date. 6 Jurist, p. 88, Dechantal vs. Pominville. G. G. Montreal ; Monk, J. Held, That a purchaser, enjoying the real estate purchased, and the rents, issues, and profits thereof, and withholding the purchase money until his vendor shall have complied with a judgment condemning him to remove certain opposi- tions fyled to a ratification of title, is bound to pay his vendor the interest as it falls due, although such judgment has not been complied with. 9 L. G. Rep., p. 310, Dinning^ App., vs. Douglas, Resp. In Appeal ; Lafontaine, 0. J.> Aylwin, Duval, Meredith, J. Held, That an applicant for ratification of title is not bound to deposit interest on the price of the land in order to obtain a judgment of ratification of title. 3 Jurist, p. 40, Ex parte Hart. . S. G. Montreal ; Day, Smith, Monde- let, J. As to payment of interest by executors. See Torrance vs. Torrance. S. C. Montreal ; Gond. Rep., p. U5. Interest on Dotal Sctms of Monet. See Registration, Donation. Interest, failure to pay. See Gontraot, comminatory. " at 12 per cent, against secretary-treasurer, ^ee Gorforation , action by. Interest. See Usury. Crown's Right to Interest. See Grown. Interest, Insurable. See Insurance, Marine. m :.' ! I I , 1 i Ilii-'il 314 !|iili INTBRROOATORIBS SDR PAITS BT ARTICLES. INTERLOCUTORY. See JoDOMBNT, Interlocutory. " APPI4L8, lalerlooutorj. INTERROGATORIES SUR FAITS ET ARTICLES. Admissions upon. Held, That where a party admits a fact and states a distinct fact in avoidance of the fact he confesses, the former is evidence against, and the latter is not evi- dence for him. Hooper vs. Konig, K. B. Q. 1813. Stanfield vs. Masai. K. B. Q. 1813. Held, That a party interrogated as to his signature only, cannot add that he has paid the sum mentioned in the writing, that fact being distinct from the fact inquired of. Hodgson vs. Hanna. K. B. Q. 1818. Held, That an admission of indebtedness in a sum not for " money lent" as demanded, but for balance due on land sold by notarial acte, was held to be a commencement depreuvepar ecrit to admit proof that the acte had been settled for and receipted, and the balance lent to defendant. £lais vs. Moreau. K. L Q. 1818. Held, That an answer that the sip^nature to a note was in the handwriting of the party proved the signature, but the addition " that the note was in part an " usurious contract for compound interest" could not be received, the questioB being only as to the signature. Hart vs. Barlow. K. B. Q. 1817. Interrogatories may be put as to extra works not ordered in writing. See Evidence, Extra Work. Answers. Held, In an action by the plaintiff, who was a shareholder and director of the Montreal and Bytown Railroad Company, that the plaintiff was bound to answer categorically as to facts relating to transactions with the company during the time he was a director. 3 Jurist, p. 136, La^roix vs. Petrault de Liniire. S. C. Montreal ; Badgley, J. Held, That a copy of the defendant's answers to interrogatories sur/aits et articles and of the writ and declaration in another suit, certified by the prothono- tary, will be held sufficient if they support the all^ations in the declaration, without interrogating the defendant anew, either as to his identity, or as to the answers in the former suit. Glairmont et vir vs. Dickson. 4 Jurist, p. 6., S. C. Montreal ; Smith, J. Held, That a party ordered to answer viva voce to interrogatories sur/aits et articles under the 20th Vict., c. 44, sect. 86, will not be allowed to read his an- swers from a written paper. 4 Jurist, p. 127, Coleman et al, vs. Fairhaim. S. C. Montreal ; Badgley, J. Held, That a default to answer interrogatories will be taken off, and the rule and interrogatories set aside, when the rule was issued afler a former and like INTBRR0QAT0RIB8 8UR FAITS BT AHTIOLBS. 91» role in the aame oaae. 4 Jurist, p. 131, Cumming$ va. Dickey, A School CommU fionert of Ihmham, 0pp. 8. C. Montreal ; Monk, J. Held, That the answers of a party make proof only as against himself, and that therefore, the answers of a defendant to interrogatories put by an interven- iDg party, can be of no avail on a contestation raised between the plaintiff and the intervening party. 3 Re?, de Jur., p. 98, Gregory, App., Hmthaw tt al,, Heap. In Appeal, 1818. Divisibility of Answers. See Bills and Notes. See Quo Warranto. Or Novo. Held, That a party eannot be examined de novo on /aid et article* whiok relate to the same facts on which he has before been interrogated. Heavi»ideit» Uann. K. B. Q. 1817. Motion for. Held, That a motion for a rule for /ait8 et articlet to be served on plaintiff's wife, is not a motion of course, but special grounds must be assigned. 6 L. C. Rep., p. 430. S. 0. Quebec, Bowen, C. J., Meredith, Morin, J. Held, That a party cannot be examined on /at^« c< ar«ic^< before issue joined except in cases of necessity, as where he is about to leave the province. Quebec Bank vs. Baby. K. B. Q. 1821. Intimated, That, in commercial oases, a party can, under the 25th Geo. 3, c. 2, sect. 10, examine his adversary on interrogatories «ur/at7s et articles. Oakley vi. Morrogh et al. Pyke's Rep,, p. 19. Sewell, C. J., 1810. Held, That a party interrogated sur/aitt et articles is not entitled to be paid his expenses before he is sworn and answers. 1 L. C. Rep., p. 277, Mireau va. Ratelle et al. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That where a plaintiff has gone out of the jurisdiction of the court, and is domiciled in an island in Lake Huron, the court will not allow service of interrogatories aur fails et articles to be made at the prothonotary's office. 4 L. 0. Rep., p. 140, Bro dit Pominville vs. Bureau. S. C. Montreal ; Smith, Van- felson, Mondelet, J. Held, In an action en separation de biens, that interrogatories served upon the husband, who made default to answer, cannot be taken as confessed, his aveu or consent being inadmissible in such a case. 10 L. G. Rep., p. 454, Maloney, App., Qvinn, Resp. In Appeal ; Lofontaine, C. J., Aylwin, Duval, Badgley, J. Held, That, in the case submitted, the answers on faits et articles were suffi- eiently categorical. 12 L. C. Rep., p. 467, Leblanc, App., Delvecchio, Resp. In Appeal ; Lafontaine, C. J., Duval, Meredith, Mondelet, J. Held, That, in an action for money lent, admissions made by a defendant on faits ei articles, that ho received the amount for a debt due him, without hoW' «ver having specially pleaded such debt, are sufficient commencement de preuve par krit to justify the adduction of parol evidence. 6 Jurist, p. 132, Fordyw, Butler. S. C. Montreal ; Smith, J. 1 ^ ^■i.'''' 21« i M 'iiMfli INVENTORY. Note Anncxed. Held. That when a note declared upon is of one date, and a note of anothn date IB annexed to /ait$ ft arlirlf$, a refusal to answer cannot bo received as ac implied admission of the note declared on, nor can plaintiff's motion pro con- /euo be allowed. Manuel vs. Frohinhcr. K. B. Q. 1818. Pro Confessis. Held, 1. That a party interrogated mr/aitt et articles, and required to state in detail the oonsidcration of an obligation made by defendant in his favor, and to produce a detailed account of the goods, wares, and merchandizes, if suoh was the consideration, is bound to do so, else the interrogatories will b« taken pro con/estia. 2. That suoh party having refused to answer when called upon to do so, can- not, at the hearing of the merits, obtuiu permission to answer. 10 L. C. Rep., p. 497, LantUr, App., D'Aoust et ux., Reap. In Appeal : Lafont&ine, C. J. Aylwin, Duval, J. ; Mondelet, J., dissenting. See Usury, Bills and Notes. Interrouatories, answer of partner. See Partnership, Sals to oni Partner. Signification of. Held, That service of interrogatories »urfait» et articles at defendants domi- cile is sufficient, the writ of summons having been served personally. 1 Jurist. p. 270, Turgeon vs. Hogue et al. S. C. Montreal ; Day, Smith, Vanfelson, J. Held, That interrogatories «ur faita et articlea may be served and returned before the inscription of the cause for evidence. 3 Jurist, p. 168, Moreau et vir vs. Leonard. S. C. Montreal ; Badgley, J. Held, That a return of service must show that the rule and interrogatories tur faita et articlea were both served. Pozer vs. Meikle. K. B. Q. 1819. Held, That the rule and interrogatories must be served at the real actual domicile, and at the same time and place, otherwise a motion to take them as confessed cannot be allowed. Buteau vs. Dtichene. K. B. Q. 1821. INVENTORY. Held, That the widow, being seized of all the property o£ the community, ma| proceed, and is bound to proceed and make an inventory ; and that an action to have suoh inventory made is unnecessary and uncalled for. 3 L. 0. Rep., p- 101, McTaviah vs. Pike et al. In Appeal : Stuart, C. J., Panet, Aylwin, J.; Holland, J., dissenting. Held. 1. That so long as a first tuteUe exists, a second cannot l^ally be made, and that the acts of such second tutor are null. ' ■ •? • . ■rv > • •' t'v- 2. That an inventory made without calling the first tutor is nvUl. 3. That an inventory at which a minor acts as auhrogi tutor is null. mum INVENTORY. 217 Sals to oni 4. That a party (a bailiff) who valuen the goods luentionod in tho inventory, QQit bo sworn, othorwiso the inventory iH null. 5. That iniioouracicH, ialso valitution, or outisnionH in an inventory, render it Toid and the party who makes Hueh inventory is guilty of fraud. 6. that all transactionf), uoqiuttunoes and ditichurgcH, which have taken place between a tutor and minors who have become of ago, founded on such fraudulent inventory, are null de phin droit 7. So also if made without a faithful inventory, without accounts being ren- dered, and without production . f vouchers. 8. That the action rrHrtwire in Huch a case, is not prescribed by ten years, when there is deceit and fraud. 9. When there is an absence of registres de marriage, tho civil Htutus of a person can be proved by the declarations of his parents, and by witnesses. 6 L. C. Rep., p. 433, Molz vs. Moreau is quat. S. C. Quebec, Bowen, C. J., Morin, Badgley, J. In Appeal; Held, 1. That, in tho foregoing cose, there was no authentic instrumont proving the date of respondent's birth ; that tho respondent having (on the 21st Aug., 1830) declared himself of full age, it was incumbent upon him to establish his minority by precise and undoubt«d proof, which he had failed to do, as also with respect to the birth of W. A. Motz. 2. That J. C, having the usufruct of the property devised to W. A. Motz, of whom he was the tutor, and never having been the tutor of the respondent, ffas not held to account to the three children Motz ; and that therefore the want of a reddition de compte could not be legally invoked by the respondent, to set aside transaotions which the respondent and his brother had entered into with .J. C. That they being then reputed of full age, such transactions oould be made legally, aa well for themselves as for their deceased sister, a minor. 3. That the aotion en nuUiti, brought by the respondent, was prescribed by ihe expiry of ten years since the passing of the instruments complained of. 4. That it h^A not been proved that the inventory of the Blst Aug., 1830, was fraudulent, aud that the errors and omissions aUeged against it could only give rise to a demand for its alteration and rectification, and that therefore the respondent had no right to briqg a suit praying that it should he declared soid, ud concluding en petition d^hirediti and for an inventory, and for the rendering of an account, and that the judgment awarding these conclusions, in the court below, was erroneous. 9 L. C. Rep., p. 148, Moreau, App., Motz, Reip. In Appeal : Lafontaine, C. J., Caron, Mondelet, Short, J. Mr. Justice Mondelet concurred as to the dismisaal of the action on the pirer scription of ten years, but not on the other grounds of the judgment in appeal.. Held, In the Privy Council : That a tranaaotion between a tutor and his ward, based upon an incorrect inventory, whilst the age of the children is still uncertain, will not be set aside, if the transaction has been confirmed by subse- quent acts between the parties, at a period when the minors were of fuU age, had ceased to be under the control of their tutor, and had a knowledge that the inventory was incorrect. 10 L. C. Rep., p. 84, Motz, App., Moreau, Resp. Held, That a defendant who has omitted to put into the inventory two debts 218 JUDGMENT. dae by him to the deoeased, will be condemned to add the same thereto, but not to a forfeiture of his interest therein, without proof of fraud. 6 Jurbt, p. 38, Shaw et vir. vs. Cooper. S. C. Montreal; Monk, J. Formula of closing. Prevost^, No. 9. New inventory ordered, when. Prevostd, No. 43. Form of enterinement de httrea d'hiritier sous hinijux d^inventaire. Pi(. vost^, No. 75. Judgment as to effets ricelis. Prevoste, No. 100. I' ( 1 1 K JUDGES. See Rbcusation. " Public Officers. JUDGMENT. Absentees. Held, That the year given to absentees by the ordinance for the revision of judgments against them, commences with the execution, for the defendant " hu " no notice before." McKutcheon vs. Price and Price, 0pp. K. £. Q. 1820. Action upon. Held, That a new action upon a judgment formerly obtained in the same court is «n action hypothecaire cannot be maintained. Gagnon vs. Blagdon. K. B. Q. 1818. Held, That if an action can be brought at all upon a judgment rendered ia the same court, which seems very doubtful, yet that such action, being com- menced by a capias ad respondendum, can only be maintained upon proof of the allegation that the defendant is about to leave the province with intent (o defraud his creditors, and such proof not having been made, action dismissed. 12 L. C. Rep., p. 199, Pelletier vs. Freer. S. C. Quebec ; Stuart, J. Amendment to. Held, That a draft of judgment may be legally amended even after the jadg- ment has been pronounced, provided it has not been registered. 2 Jurist, p. 95, Palsgrave vs. Ross, and Boss, 0pp., and Pet. en/aux. S. C. Montreal ; Smith, J. Bt Confession. Held, That a confession of judgment, to which the defendant has set his maih, untersigned bj' his attorney ad lites, is invalid and insufficient ; that the defen- dant must sign bis name to the confession, and if unable to sign, must make the confession by a notarial instrument. 5 L. C. Rep., p. 64, McKenzie vs. JoIm, 8. C. Quebec ; Bowen, C. J., dissenting ; Morin, Badgley, J. JUDGMENT. 219 Held, 1 . That a judgmeat by confession, after the entry thereof in the plain- tiff tMBDOt be attacked by motion, on the ground of alleged irregularities in the procedure, appar«ot on the face of the record. 2. That the fact of the eame attorney appearing both for plaintiff and defen- dant is not such an irregularity as to Dause the judgment, after such entry, to be held an absolute nullity. 3, That the signing of a judgment by confession, by one or two attorneys, partners, vho had appeared for the plaintiffs, is j)nmd/uae sufficient to constitnte the judgment a judgment of the court. mght. S. G. Montreal ; Smith, J. 2 Jurist, p. 107, MoUon et al. vs. Bur- Br Prothonotary. Held, That under the 22nd Vict., c. .5, sect. 11, the prothonotary cannot enter up a judgntent in vacation, in a case between trader and trader, upon an action «a aa account stated in detail, if the demand be not for " goods sold and delivered ''or for any article sold or delivered, or for money lent." Judgment set aside. 12 L. C. R3p., p. 7-t, Cochran, App., Benson et al., Resp. In Appeal : Lafon- tiine, C. J., Aylwin, Mondelet, J. ; Meredith, Duval, J., dissenting. Held, That a defendant may fyle an opposition to a judgment rendered by the prothonotary in vacation, even after the return of the first writ of execution, if it do not appear by the return of the bailiff that a day was fixed for the sale I of the goods seized. 12 L. G. Hep., p. 423, Murtineau vs. Cadorit. G. G. I Quebec, Stuart, J. GOMMON. Held, That a judgment obtained against a married woman commune en bient I assisted by her husband, cannot be the ground of a demand to have it declared executory against her husband, but such judgment may be invoked as an authen- tic acknowledgment of the debt, when the action contains conclusions to the effect that the husband, as master of the community, be condemned personally I to the payment of such debt. 6 L. C. Rop., p. 152, Berthelet vs. Turcotte. In [Appeal; Lafontaine, G. J., Duval, Caron, J. Held, That where a plaintiff's wife before marriage had obtained judgment I against the defendant and another as tutor and tutor ad hoc, and brought the laotion to hare the judgment declared common and executory against defendant, Ithe action will be dismissed, this not being a case where such judgment could be Irendered. Bisaillon vs. DeBeaujeu. S. G. Montreal ; Cond. Rep. p. 17. Held, That an action to declare executory against the defendant, a judgment lobtaiaed by plaintiff against defendant's wife alone, during her marriage with the [defendant, will be dismissed on demurrer. Berthelet vs. Turcotte et vx. S. G. [ontreal ; Cond. Rep., p. 90. GaiMiNAL Judgment. Held, 1. That the existence of a court of criminal jurisdiction, in a foreign |«tate, by which the exercise of the civil rights of men may be suspended or M m^ 1 ■ " } 1 220 JUDGMENT. lii abridged, is limited in its operation to the state in which the sentence ig va dered, and docs not deprive a person of his natural rights beyond that state, 2. That the enforcement of such sentence by a foreign court would be a vifr lation of public law and of the law of nations. 3. That a statute of limitations of a foreign court cannot be judicially noticed but must be proved as a fact, before courts here can decide upon its nature and effect. 4. That a plea to the eSeot that the judgment of a foreign court is void inas- much as no service of process was made upon the defendant, and that the defend ant had no domicile within such state, and was not amenable to the foreisn court, is a good plea and cannot be sot aside upon demurrer. 6 L. C. Rep., p. 23" Adams, App., Worden, Resp. In Appeal: Lafontaine, C. J., Duval, Caron, J Finality of. Held, That where final judgment is rendered in a cause, the court has nc right to modify or change it in any way, either upon motion or otherwise. 9L C. Rep., p. 226, Huot vs. Pag6. S. C. Quebec; Chabot, J. Held, That a judgment cannot be withdrawn, modified, or changed in anv way after the court has once adjourned. 9 L. C. Rep., p. 260, Bertrand vs. Gugy. C. C. Quebec ; Stuart, J. Held, That it is not competent for parties to a suit to desist from a judgment dismissing a pleading, and obtain a readjudication of the court thereon. 2 Jurist p. 209, Clarke et al. vs. Clarke et ux. S. 0. Montreal ; Mondelet, J. Held, On appeal from the Circuit Court, That where a party wishes to chal lenge an interlocutory judgment, he must object to it at the time it is rendered Benjamin, App., Gfore, Resp. S. C. Montreal; Cond. Rep., p. 12. In Pefvy Council. Held, 1. That by an appeal to Her Majesty in council from a final judgment in the Court of Queen's Bench, the latter tribunal is dispossessed of the case. 2. That a decree of Her Majesty in council, purely and simply reversing t judgment of the Queen's Bench confirming the judgment in the Superior Court. without indicating what judgment should have been rendered, does not invest the Queen's Bench with jurisdiction, which tribunal being unacquainted with tbe motives which determined the opinion of the judicial committee of the Privj Council, is unable to render any judgment. 10 L. C. Rep., p. 385, Monind Assurance Company, App. vs. McGiXlivray, Resp. In Appeal : Lafontaine, C J., Aylwin, Buval, Mondelet, J. Opposition bt Third Partt. Held, 1. That a person whose interests are affected by a judgment in ac« | in wVich he was not a party, may intervene by tierce opposition to such jud or may bring a direct action to be maintained in his rights. 2. That a purchaser who has been put in possession of an immovable, and vho has since Ci^used his title to be registered, may invoke the prescription and pot- ir changed in any 260, Bertrand ts, JUDGMENT. 221 jegsion of ten years, as against the claim of a pure' iser who previously registered his title, but who was never put in possession. 10 L. C. Rep., p. 370, Thouin, App., Leblanc et al., Resp. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Mondelet, Badglcy, J. Projet de Collocation. Held, That if the plaintiff does not use due diligence in prosecuting a judg* meot of distribution, an opposant, on motion, may be substituted in his place, and nay proceed to the distribution. Langlois vs. Daigle, and Legendre, opp. K. B. Q. 1818. Held, That without evident laches on the part of the plaintiff, such substitu- tion of an opposant will not be allowed. Bowen vs. Molson. K. B. Q. 1821. Held, That a judgment of distribution cannot be homologated until the money w be distributed is in the hands of the sheriff. Boucher vs. Beaudoin. K. B. Q, 1821. Held, That if a project of distribution be negligently drawn up by the pro- ;honotaries, the court will set it aside, and order a new projet at the expense of the prothonotaries. Levcsgue vs. Robinson. K. B. Q. 1820. Held, That a contestation of distinct items in a report of distribution interest- ing different parties, cannot be raised in one and the same paper, and that copies of contestation must be served on the parties whose claims are contested. 2. That the eight days within which, according to the rule of practice, a con. testation must be fyled, are not juridical days. 2 L. C. Rep., p. 9, Ex parte Burrovghs, and Opp. S. C. Montreal ; Day, Mondelet, J. Held, That the assignee of part of a claim of the bailleur de/onds is entitled to rank on the proceeds of the real property concurrently with the assignor, although the assignment was made without warranty, and at the costs, risk, and peril of the assignee. 2 L. C. Rep., p. 317, Wurtele vs. Henry. S. C. Quebec, Daval, Meredith, J. Held, That the contestation of the opposition of a creditor, collocated in a report of distribution, may be accompanied in the same contestation, by conclu- sions to have the report of collocation reformed. 4 L. C. Rep., p. 305, Maillet App., Desbarats et al., Resp., and two other appeals. In Appeal : Lafontaine, C. J., Panet, Aylwin, J. Held, That the prothonotary is bound to make a report of collocation of moneys, even where there is but one opposant, if the parties interested do not agree as to the form of the motion for the distribution of the moneys. 1 Jurist, p. 177, Mtad vs. Reipert et ah, and Bouthillier, Opp. S. C. Montreal ; Day, Mondelet, Chabot, J. Held, 1. That the 6th Vict., c. 11, sect. 2, which exempts seigniorial rights from. registration, does not apply to interest due in virtue of a subsequent special igreement. 2. That on the reformation of a judgment of collocation, the moneys takea from the party coUocated will be awarded to the contestant to the prejudice of every other non-contesting opposant, whatever may be his right. 1 Jurist, p. 255, Mogi vs. Lapri and divers Opp. S. C. Montreal ; Day, Smith, Mondelet J • 4 222 JUDGMBNT. Held, That a party who, by error and inadvertence, omitted to fyle a contej. tation to a report of collocation within the delays allowed by the rules of practice will not be allowed to fyle such contestation, although he makes a special applj. cation founded on affidavit. 2 Jurist, p. 59, Forsyth vs. Morrin et al, and Opp, S. C. Montreal ; Smith, Mondelet, Chabot, J. Contrary held, 3 Jurist, p. 165, Prevost vs. Deslerderniers, and Frothingham Opp. S. C. Terrebonne, Badgley, J. Held, Tliat an opposant will ba allowed to contest a report of collocation after the delays, on cause shown by affidavit, to the effijct that he is interested, and that the opposint collocated appears not to bo entitled to the amount of his colloca- tion. 4 Jurist, p. 286, Clmpin vs. Naigle, and Nai'gle et al, Opp. S. C. Mon- treal ; Berthelot, J. Held, That the contestation of an opposition, and subsidiarly of a projetdt collocation cannot be made together by the same moi/ens. Beshitrats vs. Lugrmy^ and Fisher, Opp. S. C. Montreal; D.iy, Smith, Mondelet, J. Cond. Rep, p, 31, Held, That a contestation by one opposant, of the opposition of another oppo- sant, who is collocated in the pwjit of distribution, will not be dismissed on demurrer, although the contestation does not set forth any claim or privilege on the part of the contestant to the moneys, the proceeds of certain real estate Fold in the cause. 12 L. C. Rep., p. 406, Wulktr vt al. vs. Ferns, and divers Opps,, S. C. Montreal; Monk, J. Same case, 6 Jurist, p. 299. ^ee Cession, Payment, Signification. See Costs, Privilege for. Rejection of Items. Held, That a motion to reject a contestation of three distinct itenfs in arcport of distribution interesting three distinct parties, as being made in one paper,and on the ground that the contestation hud not been served upon the party moving, or any of the three parties interested, will be grar.ted. 2 L. C. Rep. p. 9. Et parte Burroughs, and divers Opp. S. C. Montreal j Day, Mondelet, J. Res Judicata. Held, That an interlocutory judgment adopting, without opposition, the account of a succession prepared by its order, passes m rem judicatam, and it is not competent to the representatives of a minor who was legally a party to the suit, to revise the proceedings, and contest any particular item in the accouni, The court, however, may rectify any error of calculation. Stuart's Rep., p. 470, Prenderleath et ux., App., McGilUoray et al, Resp. In Appeal: 1831. Held, That a judgment rendered ug linst a prtncipd debtor, upon an issne raised by him, is res jadicati. against a surety who was not party to the original cause. 2 L. C. Rep., p. 249, Brush et al vs. Wilson. S. C. Quebec ; Duval, Meredith, J. Held, That if there are several issues, such as a plea to the action, and aspe- cial answer to such plea, and a general inscription for eaquSte, altbon^h tbd JUDGMENT. 223 proof of the matters set up in the special una^fer of chose Jugie as to the facts set np in the plea, if made out, would be a bar to any further proceedings on such plea, a judge in chambers has no power to restrict and limit the proof in the first instance to the special answer, and that suoh limitation can only bo ordered by the Court. 4 L. C. Rep., p, 454, Bnuh et al. vs. Wilson et al. S. 0* Quebec; Bowen, C. J., Duval, Meredith, J. Held, That a judgment dismissing an hypothecary action, for want of proof of defendant's possession, cannot be set up as res judicata to a subsequent actioa founded on actual possession, possession being a fact renewed day by day. 5 L. C. Rep., p. 408, Nye vs. Coloille et al. In Appeal : Lafontaine, 0. J., Aylwin, Duval, Caron, J. Held, In an hypothecary action at the suit of D. a hnilleur de/onds against the defendant as detenteur of a lot sold by the plaintiff to C. in 1845, and by C. to the defendant in 1851. 1. That the defendant cannot invoke a judgmant rendered in 1849 at the Buitof the bailleur de/onds against C, as settling the amount due by C. as hia auttur, such judgment being res inter alios acta. 2, That the defendant was only entitled to deduct a sum of money levied from the goods and chattels of C, his auteur, at the suit of the plaintiff in September, 1819, bat only received from the sheriff in Septerabar, 1858, when the plaintiff moved for the moneys as having baen paid in 1849, when the moneys cinie into the hinds of the sheriff. 12 L. C. Rep., p. 85, Kathan, App., Dunn, Resp. In Appeal: Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J, Held, That a plea setting up th;it a suit had been brought, in a competent foreign court, by the same plaintiff against the same defendant, is a good plea, more especiully if it sets up payment of the judgment by defendant. 5 L. C. Rop., p. 431, Vaughxa et al. vs. Campbell. S. C Montreal; Day, Vanfelson, Mondelet, J. Revision op. Held, That where a motion in a caase was dismissed upon argument, as also amolion in revision of the judgment, the party moving will not be allowed to make a third motion aiming at the same object as the first, but such third motioa till be dismissed, 6 Jurist, p. 246, Benjamin vs. Wilson. S. C. Montreal Berthelot, J. Signification of. Held, That signification of the judgment is not required where it is givea mtrddictoirement. Eogerson vs. Begin. K. B. Q. 1819. To EXECDTE Deed. Held, That a person will ba condemned to execute a deed of conveyance, and incM3of refusal to execute the same within a certain delay, the judgment of the court will be declared to have the form and effect of such deed. 1 Rev. de Jar., p. 398, Spalding, App., Haskill, Resp. In Appeal. lit If i I if:! \ I I w !■ ^ 1 :.\ < ■ •*, <■■ . ^.. 1 • f r < > tl 224 JURISDICTION — JURY TRIAL. JUDOMENT — VaoUENESS IN. Held, A good cause for reversal in appeal. See EnqdAte, notice of. Judgment pronounced on an account rendered. Pr^vostd, No. 64. Judgment condemning a defendant to furnish plaintiff with a copy of his deed of sale. Prdvost(5, No. 65. Judgment declared executory against heirs. Prdvostd, No. 89. Judgment by default, opposition maintained. Cons. Sup., No. 37. Judgment in appeal shortening the delay of payment given below. Cong. Sup., No. 58. Judgment of Ratification, Eifect of. See T^ill, Children. " ON Verdict. Sec Jury. " Interlocutory. Sec Appeal interlocutory. JURISDICTION. Judgment. Held, That a judgment rendered by a circuit judge, in vacation, by consent of parties, is bad, and that no appeal can lie therefrom. 4 L. C. Rep., p. 139, Leclair vs. Glohenski, and Opps. S. C. Montreal ; Day, Smith, Mondelet, J, On Capias. Held, 1. That the quashing of a capias in an action for less than £15, does not deprive the Superior Court of jurisdiction over future proceedings in Buch action. 2. That a question of jurisdiction cannot be tried on motion. 1 Jurist, p, 178, Elwes vs. Francis. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That a petition for liberation from arrest, under a capias ad respon- dendum, concluding that the capias be quashed, cannot be entertained by a judge in vacation, for want of jurisdiction. 2 Jurist, p. 167, Hogan et al. vs. Gordon, S. C. Montreal ; Day, J. See PiEADiNOS, Exception declinatoire. See Certiorari, Jurisdiction. JURY TRIAL. Action vs. Jurors. Held, 1. That in an action of damages against one juror out of a coroner's jorj of nineteen, empannelled to enquire into the death of several persons, where no verdict ..as rendered, the jury being divided ten against nine, it is suflficlent for the plaintiff to allege in his declaration that the defendant with eight others, in breach of their oath of jurors, and in violat'jn of their duty, from mere malice, hatred, and ill will to the plaintiff, and witn the intent to injure him, did oonspiro to charge h'm falsely with wilful and corrupt perjury, and that the defendantt aforesaid did, in pursuance of such design, draw up a libelloua statemidnt, aod 4id maliciously and wickedly procure the Bame to be pdbliBhed; JURY TRIAL. 225. 2.. That it is not oompeteDt for any one or more jurors individually, to prefer t charge of wilful and corrupt prevarication against any of the witnesses ex- MDJned before the jury. 3, If such charge is so preferred, the character of juror will not protect him iguost an actj-^-" -^f damages for injury suffered. 6 L. C. Rep., p. 316, SimarrJf App., Toumsend, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, 1. That where a statute Requires notice of action to be given before suing out a writ, it is not necessary to allege in the declaration that such notice hae been given. 3. That a coroner's jury, acting as such within their legitimate line of duty, is entitled to protection without reference to malice. 3, That an expression of opinion upon the evidence falls within the legitimate fuMtious of jurors, and for which they are entitled to protection. 4. That the same protection which applies to twelve jurors applies equally to nine or to one. 4 L. C. Rep., p. 193, Simard vs. Tattle, S. C. Montreal ; Day, Smith, J:; Mondelet, J., dissenting. See similar case before same judges. S. C. Montreal : Simard vs. Jenkiiu,^ Cond. Rep., p. 38. Appkals. When writ of error will not lie. See Appeals. Faots for. Held, That a judgment of the Superior Court determining and defining the facts to be inquired of by a jury, is a judgment from which an appeal will lie to the Queen's Bench. 6 L. 0. Rep., p. 99, Arthur, App., Montreal Agsurance Com- jMMiy^.Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, That ihe issues in this cause were covered by the facts ordered to be s Babmitted to the jury. . 7 L. C. Rep., p. 88, Montreal Assurance Company, App., ArQwa; Resp. In Appeal : Lafontaine, C. J., Duval, Caron, J. ; Aylwin, J.y In an action of damages brought against the defendants for refa»ng to fulfil an alleged agreement to receive the plaintiff as a partner into their firm, the defendants pleaded acts of immorality on the part of the plaintiff, in constantJy cohabitmg with a woman of profligate character, and introducing prostitutes into- apartments fitted up in the defendants' premises, &o. Held, That m defining the faots to be submitted to the juiy, questions should bafe been put in respect to such immoral acts, as essential to the defence, also as in respect to the alleged immoral character of the plaintiff. 10 L. C. Rep., p. 392^ Xyman eial., App., IHggin»onjB,eB]p. In Appeal ; Lafontaine, C. J., Aylwin, DUval, Mondelet, J. In what Cases. Held, That, a jury trial may be had for entering the plaintiff's house and selling and carrying away property* Sutherland vb. Heathcote. Ki B. Q. 1818. Held, That a motion for a jury cannot be made until issue haa been joined. Wilion\B.Tnnda: K. B. Q. 1818. P I ■i: » I I » 226 JURY TRIAL. Held, That wherefver goods arc oommittod to one for a qualified purpose, the disposal of them for other purposes is a tortious conversion, and a trial by jan may be had, and a challenge to the panel must be decided by three trier$ as ia England. Adanu vs. Hendenon. K. B. Q. 1819. Held, That if, in an action of account, any issues arc raised by the debatt which are cognizable by a jury, a jury may be empannelled to decide them. On bills of account in chancery, issues of fact are often sent to be decided by juries in the Court of King's Bench. Hays vs. WooUey. K. B. Q. 1821. Held, That in all issues which relate to the sale of merchandise between mer- chant and merchant, a jury may be had, even in actions of rovendicution. Wood et at. vs. Catgrain. K. B. Q. 1821. Held, That in an action on an agreement for the sale of a cargo of coal by a merchant to an ironmonger and blacksmith, a trial by jury may be had under the 25th Goo. 3, c. 2, sect. 34. Hart vs. Bruce et al. Pykcs Rep., p. 3. Sewell, 0. J., 1810. Held, In an action d'injure for malicioualy killing plaintiff's dog, a jury may be had at the option of either party. Perrault vs. Tolfry. K. B. Q. 1816. Held, That on a promissory note to order made by one merchant in favor of another, a jury may be had. Hunt \a. Lee. K. B. Q. 1812. Hold, That an action by a merchant against the master of a ship to recover the value of goods lost on a voyage from England to Quebec is a case of implied contract between a merchant and a trader, and either of the parties may have a trial by jury. If the defendant moves for a jury, it is an acknowledgment ^^ See Bills and Notes Aval. Held, that misdirection of the judge respecting the imputation of payments ii a good ground for a new trial. 10 L. C. Rep., p. 284, TUstone et.al., App., Oibb et al, Resp. In Appeal : Lafontaine, C. J., Aylwin, Mondelet, Badgley, J. ; Duval, J., dissenting. Held, 1. In an action of slander, that where the findings and verdict of a jury favorable to defendant are against the proof, a new trial will be ordered. 2. That in such action, it is not necessary that the ipiissima verba be proved. 1 Jurist,:p. 114, Beaudry, App., Papin, Resp. In Appeal ; Lafontaine, 0. J.,. Aylwin, Caron, J. ; Duval, J., dissenting. As to motion for new trial or setting aside verdict, and dismissing action. Also as to power of court to decide on evidence. See Partnebsbip, New Partner. ri JUET TRIAL. 229 Held, Thaton appeal from ajudgtnontoftho Superior Court dismissing defend- ant's motion for a new trial, and entering up judgment for t e plaintiffs, on tho Tcrdiotof a jury, the court will set aside tho verdict and dismiss plaintiff 'fl[ action non obstante veredicto, whore it considers that, according to law and tho evidence adduced at tho trial, the verdict ought to have been for the defendants. 4 Jurist, p. 361, Tilstone et al., App., Gibb et al., Resp. In Appeal: Lafontaine, C. J., Aylwin, Mondelot, Badgley, J.; Duval, J., dissenting. Province of court and of jury, now trial. See 2 Rov. do Jur., p. 200, Jobin, App., vs. Mariaon, Reap. In the Privy Council, 1845. Held, That in an action for malicious prosecution, if the verdict bo for the defendant, the court will not grant a new trial, even although tho verdiet be against .the evidence and against tho direction of the judge. McCallum vs. Wood, K. B. Q. 1821. Held, That where a verdict of a jury is contradictory and inconsistent, it will be set aside, and a new trial ordered. Bruth vs. Jones et al, S. C. Montreal ; Cond. Rep., p. 16, Option for. The issues were completed on the 30th October ; on the ^Srd November fol- lowing notice was given that a motion for a jury would be made on the 25th, and that a day be fixed for the trial. Held, That under the 64th Rule of Practice which states " the party desiring such trial " shall declare his option, either by his declaration or plea, or by motion to be " made within four days after the issue is perfected," the motion is too late^ 12 L. C. Rep., p. 96, Wihon vs. The Stite Fiie Insurance Company. S. C. Montreal ; Berthelot, J. Held, In the S. C. Montreal ; Berthelot, J. That under the 64th Rule of Practice, above quoted, when issue is perfected in vacation, a notice given by the plaintiff the next day of a motion for the first day of the ensuing term, praying a«te of the plaintiff's option for tgury trial, is given too late. Held, In Appeal 'fhat an appeal from such interloculory Judgment will ue granted. 12 L. C. Rep., p. 97, Lovell, App., Campbell et al., Resp. Lafontaine, C. J., Aylwin Duval, Meredith, Mondelet, J. Same case, 6 Jurist, p. 115. Held, That where issue was completed on the 24th January, a notice given on on the 28th, of a motion for the 17th February following, declaring option of a trial by jury is sufficient. 6 Jurist, p. 38, Arcand vs. Montreal and New Fork Railroad Company. 8. C. Montreal ; Day, Smith, Mondelet, J., 1 854. Contrary .held in Johnston vs. Whitney. S.C. Montreal j Berthelot, J. 6 Jurist, p. 39. See Damages, Slander. Verdict. « Held, That a verdict of a jury cannot be set aside in appeal, when no motion has been made in the court below for a new trial, or in arrest of judgment, or for judgment non obstante veredicto. 3 Jurist p. 5, Shaw et al, App., Meikkham, Besp. In Appeal ; Lafontaine, C. J., Duval, Caron, J. ; Aylwin, J., dissenting. i$ 280 LANDLORD AND TENANT. ' i Held, That the verdiot of • jury will be set aside if the trial was had befon issTie was joined. 3 Rev. de Jur., p. 242, Wurtele, App., Areand, Reap. Ib Appeal i Nov., 1847. Vbrdiot, Intbrprbtation or. Held, 1 . That a verdict, ainbii^uous in its terms, may be interpreted by the conrt, in such manner as to give it effect; and the court, for that purpose, may look to the evidence and ascertain the interpretation given by one of the partial to the ambiguous expressions. 2. That a creditor in possession of the moneys of a third person, cannot apply them to the payment of a note on which such person is indorser, if such note has been retired by the maker, by means of a cheque without value. That the remedy in such case must bo by special action. 11 L. C. Rep., p. 97, Qudec Bank vs. Maxham et al. S. G. Quebec, Tasohereau, J. See Damages, Slander. • " Damaqes, Lc^al Right. '« " Insurance, Representation, Warranty. " Jury. See Appeal, Writ of. " Juav IN Expropriation. See Corporation, Expropriation. " Jury Trial, when granted. See Patent, Invention. " " Time of notice of. 232 LANDLORD AND TENANT. lease, described as such, is bound to pay the stipulated rent, without a condition or tale to that effect, and without opposition d /in de charge. 2. That consequently the creditor of the rent cannot claim any indemnit; Upon the price of the sale. 2 L. C. Rep., p. 331, MetKot et al. vs. O'Gallaghan and Lampson, 0pp. S. C. Quebec ; Duval, Meredith, J. Held, 1. That a lessor par bail emphiteotique may rank by opposition iijin de conserver for indemnity for the loss of an immovable sold upon the defendant, lessee. 2. It is not necessary, in such a case, that either the title of the lessor, or the bail emphiteotique should be registered. 2 L. C. Rep., p. 333, Murphy vs. O'Donovan, and Lampson, TDpp. Held, That immovable property held by the lessee, after the expiration of an emphiteotio lease, may be legally seized as belonging to the lessor, to whom it must revert. 8 L. C. Rep., p. 235,' i^uot vs. Z)anai«. In Appeal: Lafontaine G.J., Aylwin, Duval, Caron, J Held, 1. That the lessee of a lot and water power near the Lachine canal, and within the limits of the City of Montreal, from the Commissioners of Public Works, under a lease for twenty-one years, renewable forever on the terms nien- tioned in the lease, has ajus in re, and is liable for city taxes and assessments as proprietor of the leased property. 2. That such lease is an alienation of the domaine utile, the Crown having only the domaine directe, and if made previous to the 14th and 15th Vict., c, 128, is not affected by the powers conferred upon the corporation by the 92nd section of that act. 5 L. C. Rep., p. 378, Ex parte Ilaroey. S. C. Montreal; Day, Vanfelson, Mondelet, J. Held. That the capital of the indemnity paid into court on the expropriation, b; a railway company, of land included in a bail emphiteotique will be awarded t^ the lessee on giving security, in preference to the lessor. 2. The lessee under such lease is proprietor of the land leased, and is not obliged to be content with the interest of the monies deposited in court, as indemnity for the land so expropriated. 6 L. C. Rep., p. 54, Ex ptrte The Grand Trimk Railway Company. S. C. Montreal ; Day, Smith, Mondelet. J,. Held, That a person holding land in the City of Montreal, under a lease from the Commissioners of Public Works for 21 years, renewable on certain conditions, is the owner of such land, within the meaning of the by-law of the corporation imposing assessments on real property. 3 Jurist, p. 197, Gould, App., vs. Tht Mayor, &c., of Montreal, Resp. In Appeal : Lafontaine, C. J., Duval, Caron, J. ; Aylwin, J., dissenting. Held, That an action of resiliation for the non-performance of the conditions ' of an emphiteotique lease cannot be maintained, if the dvjfendant has not been put en demeure. Balston vs. Pozer et al. K.^fi. Q. 1818. Held, That if the rent reserved in an emphiteotic lease is in arrear and unpaid •during three years, it is a cause for the resiliation of the lease. Jamson vs. Wool- .*ey. K. B. Q. 1846. So held also in Sanson vs. Woolsey. K. B. Q. 1816. Held, That the forfeiture of an emphiteotic lease will not be decreed for non- LANDLORD AND TENANT. 283 jreed for noa- pavment of rent, if it be proved that before the action was instituted, the rent* # due was tendered and refused. Bums vs. Richard. K. B. Q. 1821. Beoistration of. See Beqistration, Bail Emphiteotique. See Corporation, Assessments. Form of Writ. Held, 1. That a writ under the lessors and lessees' act, 18th Vict., o. 108, sammoning a defendant to appear " before one or more of the justices of our " Superior Court for Lower Canada in the district of Montreal, in the hall of " the court house, wherein are usually held the sittings of our said court" is DuU ; and that such writ should be returned before the Superior Court* 2. That proceedings had at the grefe or in chambers in such case, are coram nonjudice, and must be vacated and annulled, and the parties put out of court 6 L. C' Rep., p. 187, Grant, App., Brown, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, That under the 4th Will. 4, c. 12, and 2nd Vict., c. 47, a writ should be addressed to the sherifif and not to a bailiff; that it may be in the English language only, and may be returnable in three days. 1 Rev. de Jur., p. 381. Giguieres vs. Dessalliers ; Defoy vs. Hart. Q. B. Quebec, 1846. Jurisdiction. Held, That a declinatory exception under the lessor and lessees' act, 18th Vict., c. 108, is valid, the action being merely for damages for non-delivery of the leased premises. 3 Jurist, p. 140, Close vs. Close. S, C. Montreal ; Mondelet, J. So in same case, Smith, J. lb. Held, That under the 18th Vict., c. 108, j. itssor has an action to recover damages from breach of a covenant in his lease, although such lease has expired. The annual rent determines the jurisdiction in such cases. 3 Jurist, p. 253, Bedard vs. Dorion. C. C. Montreal ; Monk, J. Held, That where the term of the lease is for less than a year, and the rent for that term does not exceed £50, the Circuit Court has jurisdiction, notwith- sliuidiug the 18th Viet., c. 108, sect. 5, and that the annual rent is over £50. 4 Jurist, p. 4, Claimiont vs. Dickson. C. C. Montreal ; Smith, J. Landlord's Liability. Held, That a tenant cannot maintain an action against his landlord for dam* iges done to the premises leased by a third party. Hamilton vs. Wilson. K.B. Q. 1817. Held, That in an action for rent " that the defendant had not been kept suf- ficiently chs et convert " cannot be pleaded by way of exception to the demande. It ii a breach of contract for which the tenant is entitled to damages, and this remedy he must ask in a cross demande. Weipert vs. Inland. K. B. Q. 1820. Held, That a landlord receiving horses at livery, is responsible for damt^efl occasioned by the tail and mane of a horse having been shorn in his stables, and that without proof to the contrary, such damages will be presumed to have be6a occasioned by his servants, or by his or their negligence. 9 L. C. Rep., p. 8. Jhrocher vs. Meunier. S. C. Montreal ; Day, J. It iii: M % f .li. Pi^nM/ : \ ! V Mr 1 284 LANDLORD AND TENANT. Lease. Held, That an action on rent, due under a notarial lease, will be maintaioed on a defense en droit although the declaration does not allege enjoyment or oeea pation by the lessee of the premises leased, or fulfilment by the lessor of his oblin. tions as lessor. 1 L. C. Rep., p. 271, Pierre vs. McHugh et al. 8. C. Quebec. Bowen, C. J., Duval, Meredith, J. Held, That in an action for rent against a lessee, the lessee cannot set np damages caused by the insufficient state of the premises, or obtun the resciaios of the lease, but is bound to make a demande judiciaire, or bring an aotios against' the lessor to obtain an order that he make the necessary repairs. 1 L. C. Rep., p. 393, Boulanget^a. Doutre. 8. C. Montreal; Day, Smith, Hon- delet, J. Held, That the purchaser of an immovable property, subject to a r^Jit of redemption in favor of the vendor, cannot eject thd lessee whose lease hu not expired. 3 L. C. Rep., p. 417, RutstU vs. Jenkins. S. 0. Quebec ; Boweo, C. J., Duval, Caron, J. Lessors' Title. Held, That in an action for rent, the lessee cannot put the plaintiff's title in issue. 2 Rev. de Jur., p. 59, Hullet vs. Wright. K. B. Q. 1817. See also Garantie. Notice to Quit. Held unnecessary where the lease, a verbal one, was for a fixed period. 1 Ber de Jur., p. 383, Jolnn vs. Morisaet. S. C. Quebec ; Panet, Bedard, J. Held, That a delay uf three days between the service and return, instead o' six days as required by the 7th Vict., c. 16, is sufficient. 1 Rev. de Jur., p. 384, S. G. Quebec; Bowen, Bedard, J., 1846. Held, That an action for rent under £10 sterling, must be before a sin^ judge, and that the writ should be signed by the oldest puisni judge. 1 Bev. de Jur., p. 385, Murphy vs. Mc.GilL' Quebec ; Bowen, Bedard, J., 1846, Held, That an action in ejectment before a single judge, the rent being under £10 sterling, will be maintained. 1 Rev. de Jur., p. 385, Marconx vs. Rittut. Quebec, 1846. Contrary held in Glackmeyer vs. Day. 1 Rev. de Jur., p. 386, Quebec, 1843. Held, That the writ in an action of ejectment must be served by the sheriff, Bowen and Bedard below. In same action renewed, Stuart, C. J., held. That the judge in term bid no jurisdiction. Bedard, contra. Action withdrawn without costs. 1 Rev. de Jur., p. 386-387, Plamondon vs. Farquhar. Quebec, 1846. The jurisdiction of the court in term held in DffoyvB. Hart. 1 Rev. deJur. p. 387. Bowen, Bedard, J. Quebec, 1846. See p. 388, Desallier, App., vs. Giyuires, contra. , In Appeal ; Holland, Gile, Mondelet, Day, J. uebeo: Bowes, LANDLORD AND TENANT. Of Mill — Beduction of Bent. 28& Held In an action for several years' arrears of rent of a seigniorial mill, that neh lease cannot be assimilated to a lease of biens rurattx, in respect to which ]itter property the old law authorized a reduction of the rent in case of fail- ore of the harvest by extraordinary and unforeseen accidents. 1 Bev. de Jur., p. 184, Corriveau, App., Fouliot. Resp. In Appeal : Bolland, Mondelet, Dayi Qiirdner, J., 1845. Of Movables. Held, That where a lease of movables is continued by tadte reconduction, the leoor can terminate the lease, and can, at any time, bring an action en revendica- {MA to obtain possession of the movables. 5 Jurist, p. 333, Laurent et al, va. LaMle. S. C. Montreal ; Berthelot, J. Of Tenant— Mur Mitoyen. In an action by a tenant against his landlord for damages alleged to have been nffered by reason of the demolition of a wall dividing the leased premises from the adjoining property, such demolition being allied in the declaration to have been done and consented to by the landlord ; Held, 1. That a tenant has a right to a diminution of rent in proportion to the encroachment .r^ ~- his enjoyment of the leased premises, but that no such difflinution could it" -y 'id in this cause, it not having been demanded. 2. That the adjoit g r^' prietors having exercised their right of demolishing tmttoyen wall (which was unfit to support new warehouses about to be built) in 1 1^ manner, neither of the parties in the cause had any right of damages igUDst them. 3. That the inconvenience and loss occasioned to the tenant, in so far as the* same were not the necessary consequence of taking down and rebuilding the wall were, b this case, attributable to the improper conduct of the tenant himself (respondent), and to his unjustifiable demands and threats, and that therefore no dunages ought to have been awarded to him in the court below. Judgment rereraed and action dismissed. 12 L. C. Bep., p. 355, Peck, App., Harris, Resp. ' Lifontame, G. J., Aylwin, Duval, Meredith, Mondelet, J. Same case, 6 Jurist, p. 206. Possession Of. Held, That in an action for rent, the tenant may plead that he did not obtain poneasion of the premises at the date stipulated in the lease, and he will be allowed to deduct any damages thereby su£fered, from the rent due 12 L. C Bep. p., 40, BeUeau, App., vs. Regina, Besp. In Appeal : Lafoniaine, C. J., Ajlwin, Duval, Meredith, Mondelet, J. Prescription. Held, That arrears of house rent are subject to a prescription of five years. 8 L. C. Rep., p. 509, Sinjohn vs. Rou, and Chrittopherton, 0pp. C. C. Quebec ^ Meredith, J. 'I' J' 'LI; 41 m 236 LANDLORD AND TENANT. Held, 1. As above mentioned. 2. That defendant, having said within the five years immediately preceding the action, upon being asked for payment, that he believed he had a lam account against plaintiff, was sufficient to interrupt prescription. 4 Jurist p, 145. Delisle vs. McGinnis. Badgley, J. Held, That the prescription of five years as to rents, is an absolute prescrip- tion. 1 Rov. de Jur., p. 190, Laurent dit Lortie vs. Stevenson, C.C, Quebec ; W. K. McCord, J., 1845. Held, 1. That the prescription of 'five years against rent is in force in Canada, 2. That defendant is entitled to offer his oath as to payment, and on such oath being taken, the action will be dismissed. 1 Rev. de Jur., p. 237, Virut n. Gauvin. Commissioners Court. Mondelet, J., 1845. Privileok. Held, That goods and merchandise put on a wharf may be seized by the owner of the wharf for rent due. 2 Rev. de Jur., p. 31, Jones, App., LeMtt^ tier et al., Reap. In Appeal : 1840. Held, That the landlord's privilege for rent does not extend to horses seized on the premises, in the case of a dwelling house leased in town. Valliha vs. J5ay% et al K. B. Q. 1820. Held, That a landlord may oppose the seizure of his tenant's furniture by execution, until security be given for the rent due and to become due. Bnn vs. McHichan. K. B. Q. 1818. Held, That a landlord who has omitted to fyle his opposition to the sale of ^is debtor's furniture, may fyle an opposition hjin de conserver aad be collocated according to his privilege. Ross vs. Mason. K. 6. Q. 1812. Held, That where a landlord, who has seized the movables of his tenant bj taisie gagerie and obtained judgment in May, and sold them in Nov. 1853, an opposition by the opposant lessors of the plaintiff, claimiiig a preference on the ground that more than two months and fifteen days had elapsed, and that tiie plaintiff's privil^c had lapsed by negligence, will be dismissed. Tavemia Tt. Bonneoilk, and Dechantal et ux., Opps. C. C. Montreal ; Bruneau, J. Cond, Rep., p. 30. A lessee had the use and occupation of opposant's premises since May withoat any lease, and an opposition was fyled claiming rent by privilege for the three quarters to become due on the 1st May following. Hefd, That opposant had a privilege for the whole year, that is to say; the «[aarter due the first of August, and the three quarters due the first of May ibl- lowing ; in other words that in Quebec the privilege of the landlord extends to the expiration of the tiurrent year. 4 L. C. Rep., p. 30, Earl vs. Casey, ud JBoisseau, 0pp. S. C. Quebec; Bowen, 0. J., Duval, Caron, J. This judgment was confirmed in appeal. Lafontaine, C. J., Rolland, Aylwin,J. 4 L. C. Rep., p. 466, Tgre, App., Boisseau, Reap. Held, That proceedings by saisie gagerie and in ejectment under the 18th viot.^ c. 108, sect. 16, cannot be maintained unless founded on a lease, or on LANDLORD AND TENANT. 237 tevenson. C, C, of the defendant's occupation, by and with the consent and leave of the apparent proprietor. 8 L. C. Rep., p. 217, Dubeau, App., Dubeau, Reap. In Appeal ; Lifontaine, C. J., Aylwin, Duval, Oaron, J. Held, That by a judgment, a writ of «at«te gagerie is converted into a «at«te atciition, and that where the landlord had not issued a taisie par droit de suite OD the removal of the goods to other premises, he will lose his privilege as against the new landlord; and that under the 172nd article of the Coutume a landlord is bound to bring the goods to sale within two months after the opposition is decided upon or ended. 7 L. C. Rep., p. 80, Johnston^ App., Bonner, Reiq>. Id Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Same case, 1 Jurist, p. 116. Held, That a lessor, who has seized by asaUie gagerie the goods of his tenant, will be preferred on the proceeds over a second lessor into whose house thegooda . bad been removed, and where they were sold by the sheriff. 6 L. C. Rep., p. 42, Bonner vs. Hamilton, and Johnston, 0pp. S. C. Quebec ; Bowen, C. J., Badg- ley, J. So in Gagnon vs. McLeish. K. B. Q. 1811. Held, That the lessor has a right to recover by opposition it fin de conaerver uiears of rent for six months, and the whole of the current year, under a written ieue, either notarial or under private seal. Jurist, p. 337, Bell vs. Conlan, ud &'ncenne«., 0pp. S.C.Montreal; Smith, J i Registration of Lease. Held, That under the registry ordinance, 4th Vict., o. 30, sect. 17, mq^tgages resulting from deeds of lease under nine years need not be registered. 3 L. C. Rep., p. 291, Brown vs. Mclnenly' S. C. Quebec j Bowen, C. J., Duval J.; Meredith, J., dissenting. Rent Acoruinq. Held, In an action for rent, by default, where there is a reserve in the con- elunons for rent to accrue, that such new conclusions may be taken with«at service thereof on the defendant. 2 Jurist, p. 94, Dubois vs. Gauthier. 9. C. Montreal; Day, Smith, Mondelet, J. Repairs. Held, That where there is a covenant, by the lessee, to make all repairs proMec tt mtnues, and the house leased is burnt, the tenant is not entitled to any dimi- DQtion of his rent. Rex vs. Smith. K. B. Q. 1817. Held, That if a tenant quits the premises for lawful cause, e. g., because for want of repairs they are no longer habitable, he is answerable only for ,the rent accrued- during his occupation. Wwrtele vs. Brazier. K. B. Q. 1818. Held, That if a landlord, by necessary repairs of his leased premises, disturbs his tenant in the use of them, no action of damages can, on that accounti.be maintained by the tenant ; but the landlord cannot recover rent for the timie occupied in making repairs. Graves vs. Scott. K. B. Q, 1801. Held, That a lessee cannot quietly enjoy the leased premises until rent is demanded of him, and then set off damages occasioned by the premises hot ;rl 4: 288 LANDLORD AND TENANT. being water-tight, or from snow melting and flowing into the cellars. Loraiuet App., Perraw/^, Reap. S. C. Montreal; Good. Rep., p. 50. See MUR MlTOYEN. Resiliation of Lease. Held, That w?«te is a sufficient cause for the resiliation of a lease, especiaUj where the parties- have covenanted that the tenant shall not commit waste. Dent vs. Burray. K. B. Q. 1810. Held, That where a tenant contracts not to sub-lease, it is a good gronnd of resiliation if ho does sub-lease. Gagnon vs. Paradis, K. B. Q. 1819. So in General Uospi*al vs. Duniire. K. B. Q. 1813. Held, That sub-leasing part of a farm leased, is not sufficient cause for the resiliation of the original lease. Oerat vs. Stephens. K. B. Q. 1813. Held, That cutting wood where there is an agreement not to cut any, is a good cause for the resiliation of a lease. Hamilton vs. Constantineau. K. B. Q, 1812. Held, That a casual inundation of the premises, is not a cause for the resiiii- tion of a lease. Motz vs. Houston. K. B. Q. 1819. Held, That an action of resiliation for the non-performanciB of the conditiou of an emphiteotic lease cannot be maintained, if the defendant has not been placed en demeure. Balston vs. Pozcr et al. K. B. Q. 1818. Held, That a clause in a lease by which the tenant could not sub-let without the permission of the lessor, is not comminatory, and if violated gives rise to the resiliation of the lease. 2 Rev. de Jur., p. 52, Hunt vs. Joseph et al. Q. B. Quebeo. Held, T hat a lease may be rescinded if the premises are not provided by the lessor with a privy, when from the want of it such premises become, unwholesome. 10 L. C. Rep., p. 16, Lambert vs. Le/rangois. C. C. Quebeo; Tasohereaa, J. Held, That under the 18th Vict., c. 108, sect. 2, par. 4, a tenant may be ejected, who owes only one term of rent, in this case a quarter's rent. 3 Jurist, p. 41, McDonnell et al. vs. Collins. In Vacation. S. C. Montreal; Mondelet,J, So for a month's rent if the terms are monthly. 5 Jurist, p. 28, C. G. Mog. treal ; Smith, J. Held, That a tenant will, under the 18th Vict., o. 108, be ejected if the pn- mises are not garnished sufficiently with effects. 3 Jurist, p. 45, Heaiey vs. LaheUe. In Vacation. S.G.Montreal; Badgley, J. • Held, That a tenant who owes a quarter's rent will be ejected under the 18th Vict., c. 108, sect. 2, par. 4 ; and that in order to invoke the lessors and lessees' act in the S. G., it is not necessary to set up the act inihe declaration. 4 Jaiist, p. 35, Browne vs. Janes. S. G. Montreal ; Smith, J. Held. That in an action against two joint lessees, to set aside the lease fornoD* payment of rent, an incidental demand by way of petition on behalf of the lessor, for damages resulting from the resiliation of the lease, cannot be maintained if it has not been duly served upon both lessees, one of whom had made defanit, 12 L. G. Rep., p. 480, Dubois, App., Lamothe et al, Resp. In Appeal: L»- fontaine, G. J., Duval, Meredith, Mondelet, J. Held, That under the lessor and lessees' act, Consolidated Statntes of Lower LANDLORD AMD TENANT. 239 Cinada, o. 40, the court has no authority to rosoind a lease made by the defend- lotB to the plaintiff, on account of a change in the destination of the neighboring property of the defendants, previous to the time the plaintiff's lease came into efTeot; and that the action which was founded upon an alleged injury arising from a leasing of the adjoining premises for military barracks, was premature as having been brought in February, whereas the lease only commenced in May, 1862. Action dismissed. 12 L. 0. Rep., p. 497, Crathern et al. vs. Let Semrs de St. Joseph de VHdtel Dieu. 8. C. Montreal ; Monk, J. Sale of Premises. Held, That a lessee who quitted the leased premises on a written notice by the lessor, who had sold the house, but without notice to quit from the new pro- prietor, cannot maintain an action of damages against the lessor, w)*-' had no latbority to eject him. 2 L. C. Rep., p. 447, JUcGinnis vs. Hodg^. .^^ C. Mon- treal ; Day, Smith, Mondelet, J. Held, That a purchaser d litre singulier cannot eject the tenant without notice first given. 1 Jurist, p. 269, Boucher vs. Forneret. Q. B. Montreal; Roliand, Day, Smith, J. So also in Mountain vs. Leonard et al. 1 Jurist, p. 272. S. C, Montreal ; Day, Smith, Mondelet, J. Held, 1. That a purchaser of a house and premises «t sheriff 's sale, is en- titled to sue the occupant for rent accrued since the decrit. 2. That where an occupant has stripped the premises of effects, and carried diem off, he will be condemned to pay the rent of the entire year. 3 Jurist, p. 42, Lacroix vs. Prieur. S. C. Montreal ; Mondelet, J. Seizure of Lease. Held, That creditors cannot seize nor sell the unexpired term of a lease of a boose and premises held by their debtor ; such right existing only in favor of (lie landlord, under the 16th Vict., c. 200, sect. 11, which is an exception to the common law. 10 L. C. Rep., p. 197, Hobhi et al. vs. Jackson et al, and Jackton, 0pp. S. C. Quebec ; Bowen, C, J. Sub — Tenant. Held, That a sub-tenanl may sub-lease, if there be no agreement between him lod his landlord to the contrary. Cerat vs. Stephens. K. B. Q. 1816. Held, 1. That a sub-tenant is not entitled to the benefit of the prioilege referred to in the 162nd article of the Coutunae de Paris, unless paymentsare made J his immediate lessor in good faith, before the seizure, by the original lessor under a writ of saisie gagerie. 2. Nor in case of a complete cession to him of all the rights of the original lessee; the privilege being confined to payments made in good faith, under a KMhcatUmpartielle. 6 L. C. Rep., p. 196, Wilson vs. Fariseau, and Bav' rttte, Inter. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That where a tenant who has leased to a sub-tenant without the oonseni of the lessor, contrary to the terms of his lease, ia sued by such sub-tenant ia * . m 240 LANDLORD AND TBNANT. damages by reason of the premises not being wind and water-tight, an action m garantU lies against the original lessor, who has accepted and received the extra premium of insurance from the sub-tenant, being a tavern keeper. 11 L, C, Rep., 179, Theherge vs. Hunt et al. C. C. Quebec; Tasohereau, J. See R18ILIATION, tupra. Tenant — Voik db Fait. That an action for a vote de/ait was rightly brought by a tenant against a neigh- boring proprietor for permitting rubbish to accumulate for a number of yean against a partition wall, thereby causing the partition wall between the property of the respondent and that occupied by the tenant to fall over on the premiaea of latter. 8 L. 0. Rep., p. 156, Gallagher, App., Alltopp, Resp. In Appeal : Laf I 4'm'i\ If liMi H i' 1', 1^1 #11 f 244 MANDAMUS. LODS ET VENTES. See SEiaNiORiAL RioiiTH, Lods ot Voi^tos. MACHINE. See Criminal Law, Machino. MAILS. See Crown, Mailn. MALICE, See Damages, Malicious Arrest. " " Slander. *• « Libel. MANDAMUS. Held, That a clergyman of the Church of England, in a parish in which then is a burying ground set apart and consecrated by the authorities of his own church, cannot be compelled to bury the dead in a place that has not been use- tioned or approved of as a burial ground by the authorities of that ohiiKb. 1 L. C. Rep., p. 414, Ex parte Wurlcle. 8. C. Quebec; Duval, Meredith, J, Held, That an Appeal lies from a judgment refusing mandamus. «SVe Appral;, Held, That no writ of mandamus will lie to control the discretionary povcr as to confirming, or refusing to confirm, certificates for tavern licences, conterred on a corporation. 2 L. C. Rep., p. 274, Ex parte Lawlor. 8. C. Quebec; Duval, Meredith, J. Held, That under the 12th Vict., c. 41, municipal councils have ezclusiTS jurisdiction in controverted elections of councillors, and that no mandamui lies in such a case. 2 L. C. Rep., p. 500, Ex parte St. Louis, S. C. Montrd; Day, Vanfclson, Mondelet, J. Held, That the appointment of a board of examiners under the 6th Vict., c.7, IB dependent upon the appointment of a supervisor of cullers, under the same act. 3 Rev. de Jur. p. 89. K. B. Quebec. ; Stuart, J. Against Fabrique. Held, That a writ of mandamus will not lie against a/abrique to compel itto repair the fence of a grave-yard. 6 L. C. Rep., p. 484, Vinceltette vs. FabrifU of St. Athanase. S.C.Montreal; Day, Smith, Mondelet, J. Held, That a mandamus may be issued against a fabrique for the restontioi of an officer of the. civil government, to the use and occupation of a banc dhe* newr. Hex vs. Fabrique of Pointe avx Tremhlea. K. B. Q. 1821. A0AIN8T Secbetaby-Tbeasubeb. See Railway Company, Mandamiu. ,11 ii MANDAMUS. Against Sheriff. 245 Held, 1. That the court m\\ not grant a mand&rnus to tho sheriff to oauoe the lindi and tcncmontaas directed by tho ordinanco 25th Qco. 3, o. 33, to ho advcr- liwd in a newspaper entitled " The Quebec Gazette," where it ia not shown that there is no other epccinc legal remedy. 2. Nor will the court grant up injunction to the king's printer, enjoining him not (0 advertise in " The Quebec Oazette " the sale of lundHund tenements under the tame ordinance. Stuart's Hop., p. 1G8, Ex parte JVciUon. K. B. Q., 1824. Election — Maruuilmer. Held, That a peremptory writ of mandamus will not be is.sued until the return, IS made, be declared illegal and be rejected. 1 Rev. de Jur., p. 310, J-Jx parte Renouf. K. B. Q. 1814. Held, That it i.s not neee.s.sary tlat the cur6 specially invite the old an' new marguilliers, and the notables to an eiuctiun : but a notice in general terms (fun ueembly for the election of marguilliers is aufficiont. 1 Kcv. de Jur., p 321. El parte Binet fur mandamus. K. B. Q. 1845. Held, Thttttt return to a writ of mandamus (ordering an election of ii marguillicr) stating that a person had been duly elected according to usage and law, is a iuicieot return. Query, Should the curd give eight days' notice of such election ? Should the 1 election take place on the day fixed? 1 Rev. do Jur., p. 83, Ex parte Turcottc. I Q. |{. Q., 1846. Held, That a petition complaining of irregularity in an election of mar- I jiiilliers on the ground that the election had not taken place on the usual day, ud that the cur6 had not given eight days' previou.4 notice, will be maintained, and a peremptory mandamus ordered notwithstanding a return by the cur6 that I aoother person had been duly elected. 3 Rev. de Jur., p. 480, Ex parte Rioux. Q.B.Q., 1848. Held, 1. That the air6 has no right to preside at meetings of the fahrique, I but that such right belongs to the marguillier en charge, or, in his absence, to the second maryuUlicr. 2, That if the curi does preside notwithstanding the protost of certain notables, I the assembly is null, and also the election made thereat. 3. That the register of deliberations ought to be kept- by the marguillier en IcAar^e, and if he cannot write, then that & prods verbal be made by notary as formerly practised in France. 1 Jurist, p. 94, D' amour et al. vs (Juingue. S. I C. Montreal ; Smith, Mondfelet, Chabot, J. Held, 1. That the notables have a right to participate in the election of mar- I guilliers, and are all paroissiens contribuables. 2. That the curi et marguilliers may be compelled by mandamus to call them [ to the election of marguilliers. 3. A return that they offered to admit certain notables by their estate and f»nk, to the exclusion of the generality of the parishioners, is insufficient and ' ■ 1 ■1l '.! ifl i i, j ( 1 »■ .. i »• 246 MANDAMUS. 4. One writ otinandamtu may issue to deprive two marguilliers of their offiw and for the election of two others in their stead, and it is sufficient to serve the writ on ihe corporation. 5. That the corporation having made a return to the writ, could not lnya||r proceed to a new election whilst the former return had not been decided upon- 1 Rev. de Jur., p. 810. S. C. Quebec; Ex parte Rcnovf. Municipal Corporation. Held, That a mandamus will not be granted against the corporation of Quebec to cause Sessions of the Peace to be held, in order to investigate a claim for com- pensation for has sustained by the applicant from the demolition of his houflc (o arrest a fire. 1 Rev. de Jur., p. 394, Ex parte McKenzie. Q. B. Q. ; 1845. Held, 1. That a petition alleging that a municipal councillor has been allowed to take his seat as such, and has subsequently been expelled upon a contestation illegally decided, and concluding that he be reinstated in the place and stead of another councillor unduly admitted in his place, is sufficient in law. 2. That under the 10th and 11th Vict, c. 7, sect. 38, the municipal council ' cannot delegate to a committee, the power of hearing witnesses in the case of a ' contested election, and that the decision given in such case is null. 3 L. C. Rep p. 206, Giroux Vb Binet. S. C. Quebec; Bowen, C. J., Duval, J. Held, In appeal, Rolland, Panet, Aylwin, J. ; That under the 12th Viet., o. 41, an appeal lay to the Superior Court, and that the judges of that court mu^i allow the writ. lb. Held, That in a proceeding, by requite HbelUe, to oust the defendant fromtlie office of councillor for the City of Montreal, and to declare the petitioner entitled to the office, the mode of impleading the defendant is by writ of summons under the 12th Vict., c. 41, and not by a judge's order under the 14th and 15th Vici, a. 128. 4 L. C. Rep., p. 81, Lynch vs. Papin. S. C. Montreal ; Day, Smitli. Mondelet, J. Same case, Coud. Rep., p. 9. Held, That a writ ' f mandamus may be properly directed to the mayor ftf Quebec alone, to rectify .he minutes of the council, if the grievance to be remedied was caused by the mayor, e. g., by deciding as to a right of voting. In L. C. Hep., p. 3, Robertson vs. liobitailk, mayor. S. C. Qiubec ; Bowen, C. J., Morin, J. ; Meredith, J., dissenting. Held, That the appointment of a municipal councillor, by the governor, may be considered of no eflfect, if the municipal council had filled up the vacancy iiccording to the municipal act of 1854. 2 Jurist, p. 94, Brosseau, Petr., and Bissonnette, Deft. S. C. Montreal; Mondelet, Badgley, J. Public Works. Held, 1. That a merchant who, in compliance with instructions from the Com- missioners of Public Works, purchases lands for them under the 13th and Hth Vict., c. 13, is not a mere mandataire, but is entitled to compensation for such services. MARRIAGE. 247 2. That he has a right to have his claim for such services referred to arbitra- ■tioD under the 8th sect, of the said act. 3. That he is entitled to a mandamus to compel the commissioners to refer (uch claim to arbitration under the general rule of law, that f. mandamus will lie at'ainst any public officer charged hy statute with the performance of a daty. 9 L, C Rep., p. 43, Young vs. Lemieux et al, Commssioners of Pablio Works. g.C. Quebec ; Meredith, J, lo this case arbitrators were appointed, and the claim allowed by them and afterwards paid in full with interest and costs. MANURE. Held, That the right of property in manure lying on a lot of land, at the dat« of the sale, passes by the sale of the land. 2. That manure made subsequently will be held to have passed also to the vendee, the vendor setting up no title, but pleading by denegation to the action of the vendee to recover damages for illegally removing the manure without his permission. 10 L. C. Rep., p. 17, Wyman, App., & Edson, Resp. In Appeal, LafoDwine, C. J., Aylwin, Duval, Meredith, Mondelet, J. MARCHANDE PUBLIQUB. Ikt Bills and Notes, Married Woman. " Husband and Wife. MARKETS. Hu Corporation, Markets. ■iii MARRIAGE. Evidence op Promise to Marry. Held, That a commencement depreuvepar icrit is necessary in an action for breach of promise of marriage. 1 Rev. de Jur., p. 46, Asselin vs. Belleau, Q. B. Q. 1844. In Extremis. Held, 1 . That a person attacked with delirium tremens may have a lucid interval, and may validly contract marriage during such interval. 2. It will not be reputed in extremis although death ensues within two days after its celebration, if the person was not, at the time, sensible that he wa« attacked with his last illness, and in imminent danger of death. 3. The testimony of the attending physician as to the incapacity, corroborated ty the consulting physician, called in the day after the marriage, and the day before the decease, may be rebutted by that of the notary, the priest, and a 1 i i T • ■t; II 248 MILLS — MINORITY — MORTQAQE. intneas present at the execution of the marriage contract, and the oelebratioa of the marriage. 4. Where the status of the wife is recognized, collateral relations have not tli*> qualiti to dispute the marriage. 5. Acknowledgments of the status of the children preclude a party from &fle^ irards disputing the marriage. 6. The status of a family being indivisible, it cannot be recognized by cert&ic members and disputed by other members of the same family. 7. The ordinance of 1639 depriving marriages in extremi-> of civil effecu should be strictly interpreted. 4 Jurist, p. 149, Scott, App., Pacguet et al, Besp. In Appeal : Duval, Caron, Meredith, J. ; Aylwin, J., dissenting. Appealed to the Privy Council. Of Minor. Held, That a priest who celebrates the marriage of a minor is liable in d&m ages to her parents, whose authority has thus been disowned ; and this without a previous suit to set a^idc the marriage. 8 L. 0. Sep., p. 222, Larocquo ra. Michon. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. See same case in S. C. Montreal. 1 Jurist, p. 187, and 2 Jurist, p. 267. Marbiaqe Contract. See Husband and Wife. " Promise of. See Damages, Seduction. «' Consideration. .S'ee Fraud, Tradition. , «< Generally. See Husband and Wife. » i< ! i ': li * :.' ! - , f ' 1 i ■ i See Wages. MASTER AND SERVANT. MILITARY SERVICE. See Criminal Law, Bigamy. " Cession. " Officer. MILLS. See Seigniorial Rights, Banality. MINORITY. See TuTBLLE. " Donation, Retrocession. MORTGAGE. See Action Hypothecary. " Registration. Ii 1 , . .1 1 ^^^kl^ llM MOTION. 249* MOTION. In Forma Pauperis. Hdd, That a motion by a plaintff -^bo saed and obtained judgment in /ormd patqteris, to proceed to execution i.-: fa. m& pauperis will not be granted. 6 L. C. Bep., p. 426, Harrington vs. McCaul. £>. C. Quebec ; Bowen, C. J., Morio, Badgley, J. Notice op. Held, That notice received by one of two attorneys after the elevation of a previous partner to the bench is sufficient. 5 L. C. Rep., p. 167, Dubois v». Dubois. Held, That a motion to proceed ex parte is unnecessary where default to ^pear is duly recorded against defendant. 1 L. C. Rep., p. 494, Kershaw T8. Delisle et al. S. C. Montreal ; Smith, Vanfelson, J. Notice of to husband. See Husband and Wife, Separation. To Quash Attachment. Held, That a motion to set aside an attachment must state the ground of oollity. Barlow vs. Richardson. K. B. Q. 1810. Held, That no attachment for debt can be issued before judgment, without an affidavit, except in cases of snisie pagerie or of the dernier iquipeur. Tiffany TB. Derlong. K. B. Q. 1810. Held, That an affidavit for an arret simple must state the fact " that the defcnd- " ant is about to secrete his effects, absolutely ; or that the plaintiff is informed, '■ and hath good reason to believe, that the defendant is about to secrete his '■ effects." Lamoureux vs. Kimmerli/. K. B. Q. 1819. Held, That any irregularity in an affidavit to attach property, cannot be taken if- advantagc of by exception to the form. In case of a capias, a motion to discharge the defendant from the custody of the sheriff, for want of a sufficient affidavit to hold to bail, and not an exception to the form, is the mode of taking advantage ofsucb irregularity. Stuart's Rep., p. 52, Burney vs. Harris. K. B. Q. 1811. Held, That the court will quash an attachment by writ oi arrit simple, where- by any other person than the defendant in an action, is divested of the posses- ifion of property. Stuart's Rep., p. 536, Wood, App., Gates et al., Resp. In Appeal, 30th April, 1833. Held, 1. That the court will not quash an attachment because the jurat before the prothonotary " B. & H.," is stated to have been " before me." 2. Nnr forerasures of immaterial words, not mentioned in the jurat. 3. That to obtain a writ of attachment en main tierce it is not necessary in the affidavit to name the garnishee. 2 Rev. de Jur., p. 171, City Bank vs. Umter, and Maitland, T. S. Q. B. Q. 1847. ♦ Held, That a writ of attachment under the ordinance of 1789 may be set adde. 1. If it be not, in the language of that law, against the debts and estate of \ . ilflfll- ; 1 \ J I f #l#l 260 MOTION. the defsndant to be attached in the hands of some person in particular, and docs not contain a summons to him, as well as to the defendant, to appear. 2. If it be accompanied by an injunction by a judge to the sheriff, to retaia the effects seized to await the judgment of the court. 3. If it appears by the declaration that the debt sworn to has been cancelled. Held, That it is essential to the validity of a scelU, under the French law, that it be exercised by a judge in person, and not by a ministerial officer of the court, and that the property and papers, which are the object of the scelU, remain under the seal of the court with a gardien to protect them. Stuart's Rep., p. 376 Jiichardaon, App., vs. Mohon et al., Kesp. In Appeal, 1829. Held, That a writ of summons to appear " before our justices of our said " Superior Court" is bad, and that the summons must be to appear before the court. 4 L. C. Rep., p. 25, McFarlanc vs. Delcaderniers. S. C. Montreal; Day^ Smith, Mondclet, J. Held, 1. That an affidavit, to obtain a saisie arrk before judgment, etatiog that the sum of money due is for the price of an immovable property which plaintiff promised to sell, and defendant to purchase is sufficient. 2. That in such affidavit it is sufficient to state that deponent is credibly in- ibrmed, and verily in his conscience believes, thttt the defendant is immediately about to secrete his estate, debts, and effects with intent to defraud his orediton;, and that without the benefit of a writ of attachment he may lose his debt or sus- tain damage, &c. 4 L. C. Rep., p. 49, Shaw vs. McConnell. S. C. Quebec; Bowen, C. J., Duval, Meredith, J. Held, That an affidavit alleging " that defendant is credibly informed, hath " every reason to ))elicve, and doth verily in his conscience believe, that the " defendant hath secreted, and is about to secrete his estates, debts, and effeobi, " with intent, &c," is sufficient, and in aecordaace with the 27th 6«o. 3, c. 4, sect. 10, and the form given in 9th Geo. 4, c. 27. 5 L. C. Rep., p. 195, Laing et al. vs. Bresler. S. C. Quebec ; Bowen, C. J., Meredith, Morin, J. Held, That an affidavit for {^tachment setting forth the debt and " that this '• deponent hath reason to believe that the said James Cunningham, who is now " detained in jail under a writ of capias ad respondendum issued in the cause " wherein the said George B. Lcvcrson and this deponent arft plaintiffs, and the " said James Cunningham was defendant, was immediately about to leave and '' depart from the province of Canada, with intent to defraud this deponent and " the said George B. Leverson, and that he hath secreted, and is about to secrete " his property, debts, and effects, with a like intent, &c.," is insufficient and will be quashed. 5 L. C. Rep., p. 198, Leverson ct al. vs. Cunningham. S. C. Montreal ; Day, Vanfelson, J. Held, That an affidavit for attachment in which it is stated " that deponent " is credibly informed, hath every reason to believe, and doth verily in his con- '' science believe, that the defendant is immediately about to secrete his estate, " debts, and effects, with intent to defraud, &o.," is sufficient. 5 L. C. Rep., p. 214, Wurtele et al. vs. Price. S. C. Quebec ; Bowen, C. J., Meredith, Badgley, J. ^ Held, That an affidavit like the foregoing, omitting however the words, " that 1 1 1 JLJi t ' MOTION. 251 ' he hath been credibly informed," is insufficient. 5 L. C. Rep. p. 216. Baile vs. Ndson et al. S. C. Quebec ; Bowen, C. J., Meredith, Morin, J. Held, That an affidavit for attachment, in which it is alleged " That deponent '^^ " is credibly informed and doth verily believe, that the said defendant is imme- " diatcly about to secrete his estate, debts, and effects, with an intent to defraud, '• Ac," is insufficient and not in conformity with the 27th Geo. 3, c. 4, sect. 10, aud 9th Geo. 4, c. 20. 6 L. C. Rep., p. 251. McGuirc vs. Harvey. S. C. Quebec; Bowen, C. J., Badglcy, J. Held, That an affidavit for an attachment «at opposant's agent. 1 Jurist, p. 1, Wilton vs. Pariseau, and Sitnard, 0pp. S. C Montreal ; Day, Smith, Mondelct, J. Held, That an opposition hjin d'annuller dated after the making of the affi- davit appended thereto, will be dismissed on motion. 3 Jurist, p. 53, Walker vs. Burroughs, and Burroughs, 0pp. S. C. Montical ; Badgley, J. Held, That the court will not dismiss an opposition made and signed in tho district of Ga8])i for ^ant of an affidavit, as required by the 80th rule of practice, without proof that the rules signed on the 17th December, 1850, have been registered at Gaspe. 5 Jurist, p. 254, McFarlane vs. McCraken. S. C. Mon- treal; Berthelot, J. Held, That where payments have been made on account of a judgment, the execution will be staid until the exact sum due qn the judgment is ascertained. 3 L. C. Rep., p. 478, La Banquc du Peuple vs. Donegani, and Donegani, 0pp. S. C. Montreal ; Vaufelson, Mondelct, J. ; Smith, J., dissenting. Sec cases contra, p. 481-482. When exhibits must be fylcd. See Plbading, Exhibits. Held, 1. That an opposition to a writ of venditioni exponas, will be maintaiuesant is in itself sufficient, and she will be entitled to the costs of contestation denied in the court below. 11 L. C. Rep., p. 4«i5, Evans, App,, boomer, Resp. In Appeal: Lafontuinc, C. J., Aylwin, Duval, Meredith, Mondelet, J. Held, 1. That a hypotheque, given by an insolvent party, in favor of a creditor confers no privilege, in his favor, over the contemporaneous chirographury cre- ditors. 2. That an opposant is not bound to allege registration of his hypotheque to maintain his privilege as against chirographary creditors. 2 Jurist, p. 26J, Duncan vs. Wilson, and Wilso7i, 0pp. S. C. Montreal ; Smith, Mondelet, Chabot, J. Held, That, on cause shewn, the court will allow un opposition A /n dc comer- ver to be fyled at any time before the homologation of the report of collocation on payment of costs. 3 Jurist, p. 27, Wuodnmn vs, Letourneau, and Letour neau, 0pp. S. C. Montreal ; Badgley, J. OPPOSITION AFIN d'ANNULER. 265 Held, That an opposition d. finde canterver m\\ not be received alter th& delky, although before the homologation of the report, ho as to disturb the rights- of parties collocated, ivhere the omission to fylc it is not owing to the negligence of the attorney, but such opposition will be received so as to give the opposanl the moneys not distributed. 4 Jurist, p. 284, Ramtay vs. Hitchim, and Ranv lay, Opp- S. C. Montreal ; Budgley, J. Held, That the creditor of a rente oonttituie, which has been included, with- out his knowledge or consent, in the list of charges subject to which an immo- vable has been sold by forced licitation, cannot maintain an opposition h fin dc mnxerver for the payment of the capital out of the proceeds of the sale, inasmuch a the conditions of the sale could not now be changed without sotting aside the (ole. 12 L. C. Rep., p. 194, Murphy et al, vs. Wall, and Montizambert es quat, 0pp. S.C. Quebec; Stuart, J. Appkabance. Held, That if an opposant who has fyled his opposition does not appear regu- larly at the return of the execution, IiIh opposition will be dismissed ou motion. Organ vs. Bentley. K. B. Q. 1812. By Adjodicataibe. Held, On the sale of an immovable by the sheriff, that the adjudlcntaire has a right to demand a deduction in the price proportionate to the deficiency in the land sold. In this case the property was described as being 1 arpent 4 perches and 9 feet ou environ in front, and the deficiency was 1-17 }| of the whole. - L, C. Rep., p. 194, Paradis vs. Alain, and Zeau, Adj. S. C. Quebec; Duval, Meredith, J. See Decbkt difaut dc contenancc. Descbiption of Pboperty. Held, That a description of the land (in a sherifl"'8 advertisement) in which the routents of the land are not stated is defective, and ;^ives yround for an iippoBition a fin d' annul W. 2 Jurist, p. 1(54, Bertlieht vs. T/w Montreal and Bytoii'n R. Co. S.C 'loutreal; Kadgley, J. In Appeal, Judgment reversed, Berthelet, App., Bytown R. R. Co., Besp. 2 Jurist, j». 1G6, Lafontaiue, C. J., Aylwin, Duvul, Caron, J. Held, That a defendant may demand the nullity of a seizure with cost^ ugainst the plaintiif, by reason of an inaccurate description of tlie inuiiovable seized. 4 L, C. Rep., p. 227, Dupuin vs. Bourdaget, and 0pp. S. C. Quebec; Bowcu, C. J., Duval, Meredith, ,J. Held, That it is not necessary in a procis verbal of seizure of real estate, to mention the extent of tl>e projwrty, and that, in this case, the respondent havinj^ >old the real estate in c|Ucstion without mentiuning its extent could not urge the. absence thereof in the procis verbal. 8 L. C Rep., p. 299, Berthelet, 0pp., (/uy tt al, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Held. 1. That where real property is seized unJer two writs o^ execution of ilf": ^-•M 1? " 1 266 OPPOSITION AFIN D^ANNULER. the same date, it is not auffioient to put the heading and number of both causes, and to state in oaeprocis verbal the seizure of the lot under the two writs. 2. That where the boundaries of a lot are given with minuteness, and the extent of the boundary lines, so as to render it impossible to be in doubt as to the identity of the property seized, the seizure will not be set aside, although a building forming two houses is described as " a house." 9 L. C. Rep., p. 69. Anderson, et al. vs. Lapensie ; Palmer vs. Lapentie, and Lapensic, 0pp. S. C. Montreal ; Smith, J. Election op Domicile. U Held, That every opposition must contain an election of domicile d peine dt Hullitl VnlHirrn vs. Rohitaille. K. B. Q. 1821. Held, 1. That an opposition made through the ministry of an attorney will not be dismissed on motion, on the ground that it docs not contain an election of domicile. . 2. 'that tlio proper way to attack such opposition on the above ground, if objectionable, is by an exception a la forme, and not by moti' a. 8 L. C. Rep., p. t77, Mmphy vs. Moffatt, and Levy ct at, 0pp. S. C. Quebec ; Bowen, C. J En Sous Ordre. Held, That an opposition en sous ordre to plaintiff will bo dismissed unless tho oj i.tiition contains an allegation that the pLiatiffis en decnnjiture. 1 L. C. Rep. jj. ■i;)8, Vennor vs. Barnard et al., and Orj*. S. C. Montreal ; Day^ Mondelct, J So in Lcmoine vs. Donegani. S. C. Montreal ; Cond. Rep., p. 67. The piopcrty of minors having been taken in execution, the tutor fyled an opposition and was collocated for a certain sum. The appellants on the d/iy fixed for the homologation of the report moved for leave to fyle an opposition d fin d-- conserver, en sons ordre founded on a judgment against the father of the minors. which motion was rejected, on the ground that the judgment had ceased to be executory, and that an allegation of the insolvency of the tutor was insufficient without alleging the inpolvency of the estate of the minors. Held in appeal, T'uat tho judgment below mT.st be maintained, and that the intended opposition came too late. 10 L. C. Rep,, o. 309, Doyle et al, App., McLean es quititi, Rosp. Lafontainc, C. J., Aylwin, Duval, Badgley, J, , Mondclet, J., dissenting. Held, 1 Thut an opposition en sotis ordre, being in the nature of u «awi'' arret, mu;at be founded on jud|.,ir 3nt, wr be supported by the affidavit required iu the case of an attachment before mdgment. 2. That money paid by the d3fendant to the .sheriff without levy, was tho property of plaintiff, and was not subject to the sheriff's commission or court ht>U8c tax. 1 Jurist, p. 161, Stirling vs. Darling, and Fowler, Opp. S. C. Montreal ; Day, Mondelet, Chabot, J. In an action against Mary Charlotte Munroe, widow of William Day, and William Munroe, tutors to the minors Day, as defendants, the proceeds of real estate of Sarah Harriet Munroe, widow of R. W. Foiton, tiers said, were •M OPPOSITION AFIN d'ANMULER. 267 brought before the court for distribution. The appollant claimed, by opposition I'tjin d'. co.iserver, part of the moneys under a transfer, to him by the d<^fnndant«4 ot' a portion of the debt due by the tiers saisi to the defendants; the respond- ont claimed to be collocated en sous ordre to Thompson and his assignors for £41 12s. for bills of costs due him by the defendants, and £29 lis. 3d., due iinJcr a hypotheque granted in his favor by the said 11. W. Felton, alleging that Mary Charlotte 3Iunroe was insolvent at the time of the transfer, and that the assignment was fraudulent. To the opposition of the respondent the appol- lant pleaded .by defense en droit on the ground : 1, That the costs were a debt against the defendants, and not against the appellant. I That the opposition should have been u fin de conserver, and not en sous nn Ir.:. :\. That if the transfers were illegal, the moneys belonged to the defendants, and could not be granted to the respondent even if the appellant's opposition were >li>nii.ssed, and if legal, the proceeds belonged to the appellant. Thin defense was dismissed by the S. C. Quebec, but the judgment was set a-oido in appeal, and the defence maintained on the grounds therein mentioned. 12 L. C. llcp., p. 11, Thompson, App., Martcl, Resp. Aylwin, Duval, Mere- dith, Mondelet, J. ; Lafoutainc, C. J., dissenting. i ■ Nulla Bona. The plaintiff sued out execution in an hypothecary action, and, on being told 1 V the defendant, that he had no goods, the bailiff seized the hypothecated pro- perty, making his return of defendant's declaration that he had no goods. Held, That an opposition a Jin d'anuuller on the ground that the opposant had movables which should have been first seized, will be dismissed on demurrer, the opp.-^sant not having in limine attacked the sheriff's return alleging the oppo- Niiit's declaration that he had no goods. 9 L. C. Rep., p. 33, Arnold, App., {.''impbell, Resp. In Appeal ; Lafontainc, C. J., Aylwin, Duval, Caron, J. Held, Thatf after a return of nulbi honu, a defendant cannot oppose the sale lit his land on the ground that he has sufficient movables to .satisfy the judgment. 2 Jurist, p. 290, Soupras vs. Boudreau, and Jioudreau, 0pp. S. C Montreal ; Smith, J. On Crown Land Certificate. Held, 1. That an opposition to the seizure of real estate founded on a ccrtifi- > ale of payment to a crown land agent of an instalment of the price of a clergy Int is insuflBcient. 2. The holder of such certificate is entitled under the 4th and 5th Vict., c. loi), sect. 18, and 12th Vict., c. 31, sect. 2, to maintain actions only against wrons; doers or trespassers. 6ei)ibk, That if wild lands of the crown are sold at sheriff's sale without oppo- ■'itioD, the rights of the crown may be purged. 6 L. C. llcp., p. 420, lioss, App., Ikrthdet et cd., Resp. In Appeal ; Rolland, Panet, Aylwin, J. :i ' lii II I » V 268 OPPOSITION APIN D ANNULER. IUtrait Convbntionnkl. Held, 1. That the abolition of the retrait conventionnel by the 18th Viet., c 103, sect. 4, has no retroaotive effect, and that the retrait may be czerciittJ a.« to immoTables sold before the passing of the act. 2. That the advertisement of the sheriff stating that the immovables would bt sold subject to the cens et rentes and other seigniorial and conventional uhar^ and dues according to the original titles of concession, is sufficient to secun; such droit de retrait, and that, in such case, an opposition iH Jin de chargt wu not necessary. 8 L. G. Rup., p. 397, Caron, App., Ciugrain, Kesp. Id Ap- peal; Aylwin. Duval, Caron, J.; Lafontaine, C. J., dissenting. RULK TO CONTKST. Held, That a rule by an opposant djin de distraire calling on plaintiff to cod test his opposition, and praying that in default main Icvie be grunted, is irre^^u- lar, and will be dismissed. 2 Jurist, p. 279, McGrath vs. Lloi/d, and Keith '> at. 0pp. S. C. Montreal ; Smith, J. Seizurb or Goods and Lands. Held, That the^izurc of goods and lands on the same day, under tliR sunu' writ, will not be set aside on opposition, there being nothing in the statute (I'inh Geo. 3, c. 2, sect. 31,) prohibiting such seizure. 7 L. C. Rep., p. 359, A7tn- kowzski vs. Talon dit Letpirance, and Talon dit Lespirance, 0pp. S. C. Moii treal ; Day, Smith, Chabot, J. Same cose, 1 Jurist, p. 193. Held, 1. That the immovable property of the defendant may he seized at the same time as the movables, but the movables must be first sold. 2. That where the return of the bailiff sets forth that the defendant ka;; do movables, proceedings to set aside the return must be taken before un oppositiuir can be fyled to set aside the seizure of the immovable property, on the ground that the movables should be first seized and sold. 11 L. 0. Rep., p. 4. Fe«diDC8 under the Jieri facias, or if the conclusions demand the sottin;; uide rtt" the proceedings under the fieri facias. 6 L. C. Rep., p. 428, Abbott vs. B\i(o\tri R. Co. S. C. Montreal ; Day, Smith, Mondolet, J. Same case, 1 Jurist, p. 1 . Held, That an opposition to a venditioni exponas of movables, will bo dis- niijijied on motion, there being no grounds alleged in support of it. 9 L. G. Rep., r,, 73, McDonald vs. Grenier, and Grenier, 0pp. S. C. Montreal ; Badgley, J. Held, That an opposition to a venditioni exponas will bo rejected on motion, iffylcd without the permission of a judge. 9 L. C. Rep., p. 447, Quebec Build- \i\q Societtf vs. Atkins ct al., and Atkins et al., 0pp. S. C. Quebec ; Chabot, J. Held, That an opposition toa venditioni exponas, which had become unneces- >ary by reason of an amendment, will bo dismissed on motion, but without costs. ;i Jurist, p. 138, The Trust and Loan Company of Upper Canada vs. Doyle. •f. C. Montreal ; Badgley, J. Held, 1. That an opposition to a writ of venditioni exjmnas dc terris may be made when founded on the alleged nullity of the writ itself or the irregularity ot the proceedings thereunder. :', That, in such case, an order of the judge is not necessary, before the oppo- •itioD in received. 10 L. C. Rep., p. 333, Atkins et %ix., App.jTAc Quebec Build- ing Society, Resp. In Appeal ; Lafontuine, C. J., Duval, Mondelet, Badgley, J.: Aylwin, J., dissenting. Held, That an opposition hfin d'annuller containing frivolous or insufficient .rnundH, will be dismissed on motion. 3 Jurist, p. 72, McDonell vs. Grenier, and Grenier, 0pp. S. C. Montreal; Budgley, J. Held 1. That, an opposition may be fyled to a venditioni exponas if credit be not given on the wrif, for payments on account of the judgment. J. And will be maintained when land eii roture has been advertised for sale ill another parish than that within which it is situated. 3 Jurist, p. 73, Esty \>. .ludd ct vir, and Judd, 0pp. S. C. Montreal ; Badgley, J. Held, That an opposition to a venditioni exponas de bonis will bo dismissed on motion, when the goods seized were afterwards sold without any delivery. 5 Jurist, p. 71, Lovell vs. Fontaine, and St. Armand, 0pp. C. C. Montreal; Badgley, J. See Affidavit, Payment, supra. OiPosiTiON BY Gardien. See Gabdien, Opposition. " See Costs. " Unfounded is a contempt. Sec Contrainte, Opposition. '' to judgment by default maintained. PrdvostiJ, No. 70. " main Icvie ordered. Prdvostd, No. 8. AiPEAL converted into opposition. Cons. Sup., No. 32. II , !i ll OUSTER. ^H CORPOIATION. >S'w Railway Co. t Hi 270 TARLIAMBNT. I'AIN BKNI. S€t CuuRCiiis, Pain Bent. PARDON. Efi'ect or. Set D»ATH Civil, effect of. PARISH. D^ret Canonique for erection of. See Certiorari. Erection op. See Churches, Erection of. " See Certiorari, Parishes. Name or. Sec Pleadin(j, Exception A la forme. PARLIAMENT. Breach of Priviliob. Held, That tho^Leginlative Council has a right to commit, as for breach u\ privilege in cases of libel, and the court will not notice any defect in the warrant of commitment for such an offence after conviction. Stuart's Rep., p. 47> Case of Tracy. K. B. Q. 18.32. Elections. Held, 1. That upon an applicatiim to a judge for the taking of evidence, he has a right to hear and decide all (juestionH respecting the validity of the application AnicHgyt these arc conipri.ach sanction might be inferred from circumstances. 2. Such a promise to take a person into partnership at a specified time " upon 'terms that shall be mutually satisfactory," but containing no specifications as to conditions, share, duration, and the like, affords no basis for the assessment of damages for a breach of it. 3. That a motion to set aside a verdict and dismiss the action, or grant a new trial, is regular, and in accordance with the practice of the court. 4. The Superior Court has the power of appreciating for itself the evidence adduced before the jury, and if the verdict be not sustained by the evidence, will ^t it aside upon a motion to that eficct, and render such judgment as shall be justified by the record. Semble, That immoral conduct, by keeping a mistress, or frequenting brothels, i« a sufficient justification for a refusal to fulfil such promise. Semble, Also, that one partner, a defendant examined under the recent statute, may be a good witness for his co-partners, defendant^!, any objection going only to his credibility. 4 Jurist, p. 329, Hiffginson vs. Li/man et al. S. C. Mon- treal ; Monk, J. Proof of. A charitable institution, founded for the relief of the poor, appointed delegates to establish a savings bank. These delegates appointed a president and directors vho adopted certain regulations, and amongst others one prohibiting any profit to the officers of the institution. Deposits were received to be repaid with interest, and promissory notes were discounted upon the credit of individuals. Upon these discounts, a percentage was taken by the directors, and a portion of the fund was appropriated to their own use for their services. The bank, or business so established, was ultimately closed as insolvent, and a portion of the debts due as special deposits was bought up by the directors at a composition in the £. In an action of assumpsit against the president and several of the direc- tors, by one of the depositors, (who had been one of the above mentioned ddegatet) for the full amount of his deposit : Held, 1. That without reference to the question of fraud, delit or quasi-delit the president and directors had become traders by mixing themselves up with a A^ommercial banking business, and were jointly and severally liable to such deposi- tor for the amount of his deposit, and that, had the plaintiff approved of the proceedings of the directors, submitted annually at meetings of the depositors, < I !' Fit ']\i H . ,'' PI 1 H if ' < H \, * i ■ '' ! • 7 f •1 ^ 2T8 PARTNERSHIP. hit approval, obtained by means of false statements, could not operate to kis pre- judice. 2. That the charitable institution had no interest in the matter, and cons«' quently no action o\ account pro socio for or against it would lie. 3. That the president and directors had become a co-partnership, or an unincor- porated company, and that the action was properly brought against any one or more of them, under the provisions of the 12th Vict., o. 45. 11 L. C. Rep., p , 293, Prevost et al., App., Allaire, Resp. In Appeal : Lafontaine, C. J., Aylwic, Mondelet, J. ; Duval, Badgley, J., dissenting. Held, That it is competent to defendants who are sued as co-partners carryicg on trade under the name of " The Montreal Railway Car Company," to prore under the general issue, that the company was a joint stock company, and that the debt was a debt of the corporation. 2 Jurist, p. 192, Edmonstone et al. y». Childs et al. S. C. Montreal ; Badgley, J. Held, That where one of two co-partners purchases, in the way of his trade, it must he prima facie presumed that he buys for the co-partnership; if hess^ nothing to the contrary, he tacitly holds out the assurance of their joint responsi- bility. Rose vs. Melvine et al. K. B. Q. 1819. Held, That evidence that the firm of a co-partnership is A B & C, does not prove that the co-partnership is composed of three or more persons. Chinxc Vezina & Co. vs. Gervais. K. B. Q. 1820. . Proof op — Between Partners. Held, 1. That as between partners themselves, the partnership must be proved by writing. 2. That sales, even under the lOth-and 11th Vict., c. 10, must be made accord- ing to the usual course of business and for cash, unless the usage of their trade justifies the giving of credit. 6 Jurist, p. 134, Beuudry vs. Lajlamme, and Davis, Inter. S. C Montreal ; Smith, J. Registration op. « In an action for penalty against a shareholder in the " Navigation Company " of Three Rivers " for not registering the names of all the members of the com- pany at Montreal, where it was alleged the company did business : Held, That under the statute (12th Vict., c. 45) such registration was not necessary, and action dismissed on a declinatory exception. 4 Jurist, p. 239, Sinical vs. Chenevert. C. C. Montreal ; Monk, J. Held, In such an action, that thece is no prescription under the 52nd Geo. 3, c. 7, intituled '' an act for limiting the time during which penal actions may h " brought in the courts of the province," although the offence is alleged to have been committed five years since and over ; the offence being held to be continued from day to day. 5 Jurist, p» b^, Handsley vs. Morgan. C. C. Montreal; Smith, J. Held,- That partners who have fyled a certificate of partnership continue liable after the dissolution, if they omit to fyle a certificate of dissolution. 5 Jurist, p. 335, Murphy vs. Page et al. S. C. Montreal ; Smith, J. PARTNERSHIP. 279 Held, 1. That where partners have roistered the formation of their co-part' uerabip, but not its dissolution, although such dissolution is by notarial deed, one partner is liable for debts contracted by the other, under the same partnership name, after the dissolution. 2, That in an attachment under the 177th article of the coutume where the insolvency of the debtor is alleged, the affidavit of the plaintiff will be held suffi- cient evidence of insolvency unless it be specially denied. 6 Jurist, p. 105, Jackson vs. Paige et al. S. C. Montreal ; Monk, J. Registration of — Penalty. In an action in the Circuit Court, Montreal, for a penalty of £50 for not regis- tering at the prothonotary's office at Montreal, an act of co-partnership of « The ' Three Rivers Navigation Co.," made at Three Rivers; the defendant having liis domicile at Three Rivers, was served with process there to appear at Mon- treal. Held, In the Circuit Court, on exception decUnatoire, that the company having its principal seat of business at Three Rivers, was not bound to enregister at Montreal. In Appeal confirming the judgment. That the whole course of action must arise within the district where the suit is brought in order to give the court jurLs- Jiction. 12 L. C. Rep., p. 145. Sinical, App., Chenevert, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. Same case, 6 Jurist, p. 46. Sale to One Partner. Held, 1. That a vendor who sells to one partner in his own individual name,. and upon his credit and responsibility, has a right to recover against the firm of which such partner is a member, provided the firm has benefitted by the transaction, and although the vendor was ignorant of the existence of the partner- i ^rm. 7 L. C, Rep., p. 451, McGuire, App., Scott, Resp. In Appeal: Lafontaine, C. J., Aylwin, Duval. J. ; Caron, J., dissenting. In an action brought for the price of goods alleged, in the declaration, to hav& been sold and delivered to the defendant personally, the defendant pleaded that the goods were not sold to him, and that he had nothing to do with the purchase except as the agent of a glass company then in operation, to which company they were sold ; the plaintiffs were allowed to amend- their special answer to this plea by adding thereto an allegation to the effect that the defendant was a partner in the said glass company, and that his plea that he was simply an agent was false : Held, 1. That even if it were established that the defendant was a member of said company, as alleged in the special answer, jio judgment could be rendered against the defendant, it appearing from the allegations and admissions of the pluntiffs, that the action should have been brought against the company. ♦h 280 PATENT. 2. That the special answor was in oontradiotion with the declaration, and that the action must, on that ground, bo dismisBod, and also because the sale and delivery alleged in the declaration had not been proved. 12 L. C. Rep., p. 92, Gauh et al., vs. Cole. S. 0. Montreal ; Monk, J. PASSENGERS' LUGGAGE. See Carrier. iiiii i it 1 1 1 w Hh PATENT. For Inventions. Ue}(l, That Letters Patent, for an invention, granted under Her Majesty's Privy Seal, in England, are of no force or effect in Canada ; and the patentees have no other remedy in Canada than that given by the Provincial Statute in that behalf. 1 L. C. Rep., p. 130, Adams vs. Peel. S. 0. Montreal ; Day, Smith, Mondelet, J. Held, That Letters Patent issued for an improvement in fire engines, whereby greater results are obtained, are valid. 2 L. C. Rep., p. 305, Muir vs. Perry. S. C. Montreal ; Day, J. Held, That in an action for an infringement of Letters Patent for Lower Canada, the allegation of such infringement " in the county of Montreal" is suf- ficient. 2 L.C. Rep., p. 311, ProwsQVB. Panuelo. S. C. Montreal; Day, Van- felson, Mondelet, J. Held, That in an action for infringement of Letters Patent for an invention, it IS sufficient to set out in the declaration the granting of the Letters Pat«nt in favor of the plaintiff, with their date and tenor, without allying oomplianoewitli the formalities pointed out by the statute to entitle the plaintiff to obtain such patent. 8 L. C. Rep., p. 297, Bemier vs. BeUiveau. 8. C. Montreal ; Day, J. Same case, 2 Jurist, p. 289. Same ruling in Bernier vs. BeauchemiUf 2 Jurist, p. 193. Same case, 5 Jurist, p. 29. Held, That the certificate to he-appended to Letters Patent for an invention, conformably to the 6th Wm. 4, c. 34, sect. 2, must be given by the attorney general, or, in his absence, by the solicitor general, and such certificate given by a Queen's Counsel, renders the letters patent invalid. 1 Rev. de Jur., p. 185, Bellanger vs. Leveaque. K. B. Q. 1845. Held, That where the jury found, in an action for infringement of letters patent for an invention, that the plaintiff was not the first and true inventor, that the invention was previously discovered and made known by another, and that the plaintiff had suffered no damage, the court will not disturb the judgment dismissing plaintiff's action on the verdict of the jury. 12 L. C Rep., p. 49, Ritchie, App., Joly, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J.. PENALTY. PATENT— CROWiN LANDS. 281 Hold, !■ That the writ of tcire /aciat is not indiflpcuBublo to tho revocation f letters patent for lands, and that in tho present instance, the Grown, repro- >i'Dt«d by the officers of the ordnance, could waive tho remedy, which, by law, .he hath as her royal prerogative to repeal tho letters patent by a writ of idre I'aHai and adopt the gomraon remedy open to all Her Majesty's subjects in that behalf, as done in this case by the conclusions of the exception. 2. That a defendant may, by exception, invoke tho nullity of the title set up hy the adverse party, without proceeding directly by action or by incidental imand to obtain the rescision of such title. 1 L. G. Rep., p. 481, Officers of llfT Majesty's Ordnance vs. Taylor. In Appeal : Rolland, Panet, Aylwin, J. Registration of Letters Patent. See Registration by Grown. Held, That a writ of scire facias to annul letters patent will be refused on tho s;round that such writ can only issue at the instance of the Grown, the statute |iroviding otherwise in Ganada having been repealed. Gond. Rep., p. 65, Ex pirte Paradis. S. G. Montreal ; Day, J. PATERNITE. ,S'c5 Evidence, Gompetency. .S^ee Damages, Seduction. PAUPER, Execution. See Motion m formd pauperis. PAYMENT. Imputation of Interest. See Bills and Notes. 3y Error. See Bills and Notes, Payment by Error. To Cedant. See Gession, Payment, Signification. Receipt. See Evidence, Receipt. See Pleading, Payment. PENALTY. Penal Statutes. Held, That in an action of damages for the non-performance of a special agree- ment in which a penalty is stipulated to be paid by the party failing, the penalty \i not to be considered as stipulated damages, and therefore whatever loss is proved to have been sustained, whether above, below, or equal to the penalty, the plaintiff will have judgment for such loss Mure et al, Pltfs., Weley et al, Defls. Pykc'sRep., p. 61. Sewell, G. J., 1810. ^f| wifii II fii IIBttf^' 1 1 rH UK 1 1 B^^^^^^^^^^^HV iM^^^^^H^^^H^n ' r ^B M|r ; . 28fl PEREMPTION. « Held, That a sum fixed by way of penalty in oaso of noD-performanoe •j'' a contract, cannot be conuidored a» preliquidoted duniogOH if it is not diHtinotly stated to bo so. Patterson vs. Farmn. K. B, Q. 1811. Held, That where the plaintiff demands the amount of stipulated damatKii he affirms the contract, and con8o<{uently cannot call on the defendant to refuDii any sums of money advanced or paid by the plaintiff on execution of tlie uontruct, > on his part. Patterson et at. vs. Conant. K. B. Q. 1819. Held, That costs may be awarded in a qui tarn action, and that two witaowe-i speaking to different breaches .of the statute are sufficient. Puizi qui tarn Vi. Fay. K. B. Q. 1812. Held, That in an action grounded on the arrHoi 1711, the cose stated in thi: declaration must lie within the letter of the arrit, it being a penal statute whici may operate the forfeiture of real estate. Dubois vs. Caldwdl. K. B. Q. 1820 Held, That in a qui tarn action for a penalty for practising physio without i license, two witnesses to different acts of such practice is sufficient evidence ti, support the action. Puizi qui tarn vs. Faj/. K. B. Q. 1812. Held, That a defendant cannot be arrested for the amount of a penalty incurred for an offence against a penal statute. Graham vs. Whitby, K. B. (j 1818. Held, In an action by the proprietor of a toll bridge, in damages, for ferrying persons across the river to defendant's mill, that the action will lie, and that th- penalty given by the 10th and 11th Vict., c. 99, (the charter for the bridge) was to the inform£r. That the only thing that takes away a common law remedy would be a specific remedy given by statute. Leprohon vs. Globenski. CodJ. Rep., p. 90. Held, That a laborer counting and sorting deals for his employer is not liable to the penalty imposed upon persons culling deals without being duly authorized under the 8th Vict., c. 49 3 Rev. de Jur., p. 241. The Supervisor of Culhn. App., Gagnon. Resp. In Appeal, Nov., 1847. Penalty for non-registration of co-partnership. See Partnership, Registra- tion of. Penalty for breach, by wife, of L. C. game act. See Husband and Wipk. Pbnalty. See Arbitration. In Arbitration Bond, ^ee Arbitration. ^e Certiorari, Roads. \ s PEREMPTION. Held, That a petition for peremption d'inst'ance could not be made in the Court of Appeals without a certificate from the clerk of the court, stating tlie date of the last proceeding. 1 L. C. Rep., p. 89, Les Dames Religieustn Vrsulines vs. Botterell. In Appeal : Rolland, Aylwin, Ross, Angers, J. Held, Th&t peremption d' instance is interrupted by service on the defendant of a notice of motion for the rejection of a report of arbitrators, before the sig- PEREMPTION. 28a aiftoatioD, OD tho plaintiff, of the rulo for poromption. 1 L. C. Rop., p. lOi* JHnning VB. Bate$. S. C. Montreal ; Day, Smith, Monddet, J. Held, Tbat notioo of motion tor peremption d'instance received by one of two attorneys, after the elevation of a previouH partner to the bench, is sufficient. .\ L, C. Rep., p. 167, Duboit vs. Dubois. 8. C. Montreal; Smith, Vanfclson, Mondolet, J. Where an interlocutory judgment was rendered discharging an inscription for heiring on the merits of a, demande en garantie as premature, inasmuch an judg- ment could not be rendered until the cause, in the declaration of the plaintiff en MTantie as principal plaintiff, was decided upon : Hold, That the proceedings en garantie were suspended by this judgment, and that therefore there was error in a judgment declaring such action perinUe, OD motion by one of the defendants en garantie. 9 L. C. Rep., p. 219, Archam- iadt, App., Buiby, Resp. In Appeal; Lafontoine, C. J., Aylwin, Duvul. Meredith, J. Same case, 3 Jurist, p. 222. Held, That a proceeding in a cause, made by a plaintiff's attorney, after service on him of a rule mn, for peremption d' instance, and before the return of the rule, will not prevent the peremption being declared, and the action dismissed. 10 L. C. Rep., p. 20, Farnam vs. Joyel. S. C. Montreal ; Berthelot, J. Same case, 4 Jurist, p. 128. Held, That the peremption d'instance cannot be invoked in the case of an opposition fyled by an hypothecary creditor, in a proceeding for ratification of title, there being no instance pending. 11 L. G. Rep., p. 285, Ex parte Robert- ton, and Pollock et al. 0pp. S. C. Montreal , Smith, J. Same case, 5 Jurist, p. 150. Held, That, on sufficient cause being shewn) the court will not grant costs on peremption d'instance. 1 L. C. Rep., p. 494, DeBleurg vs. Qauthier. S. C. Montreal ; Smith, J. Same case, 5 Jurist, p. 330. Held, That in the absence of the original record, it is not competent for the court to pronounce peremptioh d'instance. 2 Jurist, p. 96, Turrit vs. Boyd. S.C.Montreal; Smith, J. Held, That a motion praying that the action be dismissed for want of pro- ceedings during three years, and not praying that it be declared pirimie, is irregular, and will be rejected. 2 Jurist, p. 221, Peck et al, vs. Murphy, and Mayor, &c., of Montreal, T. 8. S. C. Montreal ; Smith, J. Held, That peremption d'instance may be preserved by a valid proceeding;, made after service of a motion en peremption. 3 Jurist, p. 237, Beaudiy vs. Plinguet. S. C. Montreal ; Mondelet, J. Held, That a cause will be ieolated perimie notwithstanding the plaintiff ha.s^ not been represented in consequence of his attorneys having abandoned their pro- fession. 3 Jurist, p. 283, New City Gas Co. vs. Macdonnell. S. C. Montreal ; Day, Smith, Mondelet, J. Held, 1. That where the defendant dies, the inandat of bis attorney ad litem ceases. 9 1 1 i f . i : :li 1 J! II 284 PERJURY — PILOT. 2. That the time for peremption does not run during the three months and forty days allowed the heirs to deliberate as to accepting or renouncing his snc- cession. 5 Jurist, p 331, McKay et al. vs. Gerrard et al. S. C. Montreal Monk, J. Held, That the death of a plaintiff interrupts peremption. 4 Jurist, p. 148, Tate et al. vs. McNevin. S. C. Montreal ; Badgley, J. Held, That a rule for peremption will be granted notwithstanding the time of vacation has been counted to make up the three years, the stoppage of time under the 16th Vict., c. 194, sect. 10, not being applicable. Benoit vs. Peloquin. 8, thonotary. Fortier vs. Berthier. K. B. Q. 1810. Vemet vs. Consigny. K. B. Q. 1817. Held, That if a party summoned to admit or deny his signature does not appear in person, or by attorney, the signature must be taken pro con/esso, Bryton vs. Hooker. K. B. Q. 1811. Held, That in such case an appearance by attorney is sufficient. Allison vs. Dehlois. K. B. Q. 1811. Held, That the court will not allow a motion for the benefit of a default, if it appears that the defendant was not called on the return day. Ritchie vs. Fbwer. K. B. Q. 1812. Held, That the court will set aside the default and dismiss the action, if it appears on the d6libiri, or at the hearing, that the defendant has not been legally summoned. Shephard vs. Tounancour. K. B. Q. 1818. Held, That the appearance of an applicant for ratification of title dates from the presentment of the petition. Ex parte Wood. S. C. Montreal ; Cond. Rep.,. p. 107. Articulation of Facts. Held, That an articulation of facts which contains matter not to be found in the pleading, or matters admitted by the pleading, is nevertheless good. 8 L. C. Rep., p. 154, Rouleau vs. Bacquet. S. C. Quebec ; Bowen, C. J. As to effect of not answering articulation of facts. See Pleading, Compen- sation. Also 4 Jurist, p. 284. Held, That the want of an articulation of facts by one party cannot prevent the other party from proceeding in the cause. 6 Jurist, p. 61, Bilanger, App., Mogi, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, Monde- let, J. Held, That an articulation of facts denying " all the matters, allegations and " facts " contained in a pleading, will be rejected on motion. 6 Jurist, p. 120, MoUons' Bank vs. Falkner, and 0pp. S. C. Montreal ; Badgley, J. See Compensation, post. Compensation. Held, In an action by the Montreal Provident and Savings Bank, on a notarial obligation for moneys lent, that the defendant could not set up in compensation sums of money transferred to him by depositors in the bank, when the bank was insolvent. 1 L. C. Rep., p. 110, Montreal Provident and Savings Bank vs. McOinn. S. C. Montreal : Day, Yanfelson, Mondelet, J. ) I 1^ 1 !■ fill 286 PLEADING. t iM } 1 . 1 '< m 1 ■ * i J- 7 1 ; 1. j 1 1 1 ! ; '■11 ■ t' H |i ■ , ; 1: :' 1' \ . 1 !'•■■• ■■-'■ t ' ' f . ■ .' i " i 1 Held, That an accommodation indorser can set up in compensation against a bank, plaintiff in the cause, all salary paid by plaintiff to the maker, an officer of the bank, subsequent to the protest of the note. 1 L. C. Rep., p. He Quebec Bcmk vs. Molson. S. C. Montreal; Smith, J. Held, That compensation must be specially invoked, and the conclusions of a pica to that effect should be special and pray that compensation be declaKd to have taken place. The judgment of the court below confirmed in its dU- positif in appeal, and the plea further declared to set up matter which could not be pleaded in compensation, the debt not being claire et liquide and bein<' alao vague. 1 L. C. Rep., p. 478, Ghigif vs. Duchemay. Q. B. Montreal; In Appeal. Rolland, C. J., Panet, Aylwin, J. Held, That a general issue is waived, when fyled with a plea of payment or compensation. 1 L. C. Rep., p. 487, Casey vs. Villeneuve. C. C.Quebec; Power, J. Held, 1. That in an action by a pariiy, indicated in a deed of sale as the persoD to whom the prix de vente of an immovable shall be paid, the indication depait- merit not having been accepted by plaintiff, will be dismissed on proof of a plea of compensation by notes held by the defendant, which were previously made by the vendor. 2. That the registration of the deed by the plaintiff does not affect defendant's rights in such a case. 8 L. C. Rep., p. 221, Seaver et al. vs. Nye. S. C. Mon treal ; Badgley, J. Held, That in an action for work and labor done by plaintiff with his steamer, etc., the defendant can set up in compensation damages suffiered by negligent and careless towage, nor is it necessary that such damages be claimed by incidental demand. 6 L. C. Rep., p. 33, Beanlieu vs. Lee. S. C. Quebec ; Stuart, Gauthier, J. Held, That a debt need not be absolutely claire et liquide in order to be set up in compensation against a notarial obligation, provid ed it be easily proved, so that compensation for goods sold and delivered may be so pleaded. 6 L. C. Rep., p. 75, Hall, App., BeaMet, Resp. In Appeal ; Aylwin, Mondelet, Badg- ley, J. ; Lafontaine, C. J., dissenting. Held, That in an action on a notarial obligation, a claim for unliquidated damages (from non-delivery of brick) cannot be set up in compensation. 6 L. C. Rep., p. 491, Chapdelaine vs, Morrison. S. C. Montreal; Day, Smith, Badgley, J. Held, That a claim which is not founded on authentic deed cannot be setup in compensation against a claim founded upon such deed, notwithstanding the default of the party, plaintiff, to answer the articulation of faots fyled by Ae defendant. In Appeal : That the default to answer the articulation of facts, having the effect of an admission of the facts alleged, the claim set up in compensation became be set forth in the declaration, it is not sufficient that the land is so described that the defendant must necessarily know it. The description must be such as will enable the court to award judgment as to what is asked. O'Connor v.<, Couture. K. B. Q. 1821. Held, That in a declaration for the price of real property sold, it is not new^v sary to allege the delivery (tradition). If it has not been delivered the defend- ant must allege the fact, and to that the plaintiff may reply by denial, or by an offer to deliver. Larivi vs. Bruneau. K. B. Q. 1817. Held, That what is omitted in. the conclusions of a declaration cannot bo sup- plied by the court. Perrault vs. Valliires. K. B. Q. 1820. Held, That if the defendant appears, the non-service of a copy of the declara- tion will only authorize the defendant to move for a copy, and that the rule tn plead should date from the day of service. Monminny vs. Tappin. K. B. Q, 1820. Held, That a declaration on a bill of exchange drawn by plaintiff in favor of 0, and accepted by defendant, which alleges the bill was not paid to C, whc " returned it to plaintiff," is sufficient. Demurrer dismissed. Bowhottom vs. Scott. S. C. Montreal ; Cond. Rep., p. 32. Held, That pleas which only answer part of the demand and yet conclude for the dismissal of the whole action will be dismissed on demurrer. McDougal si. Morgan. S. C. Montreal; Day, Smith, Mondelet, J. Cond. Rep., p. 8. Defense en Droit. Held, That to a demand en reprise d' instance forcie in an action of reveiidica- iion de meubles, a defense en droit by an executor, is no answer. Idle vs. Shep- herd. K. B. Q. 1817. To an action for rent on a lease before notaries, setting up the lease for a year of the house and premises to the lessee, in consideration whereof the lessee promised to pay the rent (£230) in the manner and at times specified in the lease, the defendants, sureties under the lease, fyled a defense en droit to the declara- tion, on the ground that there was no allegation that the lessee had entered upon or enjoyed the premises, or that the lessor had fulfilled the obligations binding on him under the lease. Defense en droit dismissed. 1 L. C. Rep., p. 211). Pirrie vs. McHvgh et al. S. C. Quebec; Bowen, C. J., Duval, Meredith, J. Held, That an action in damages against several defendants for breach of con- tract to convey a raft, cannot be dismissed on a defense en droit, although the conclusions of the declaration are for a joint and several condemnation. 5 L. C. Rep., p. 180, Ranger et al, vs. Chevalier et al S. C. Montreal; Day, Smith, Vanfelson, J. See Bankruptcy. PLEADING. Denial on Oath, 289 Ilcld, That under the judicature act of 1857, sect. 87, in an action on a bond allc'od to have been made by the defendant's agent, the bond in a writing con- tcmpliited by the statute, and that where tlie agent's authority is denied, an affi. davit as to such authority should have been fyh'd with the plea. 2 J urist, p. 121, Atty. Gen. pro Reg. vs. McPherson et al. 0. C. Montreal; Badgley, J. See Bills and Notes, Forgery. Departure. The opposant set up title to an immovable seized, under the will of her hus- band ; contestation that subsequently to the will, the testator and opposant had made a donation of the land to defendant ; answer, resiliatipn of the donation before the husband's death by the consent of all parties thereto. Held, That such special answer could not be set aside on a lUfeiise en droit, ii8 invoking a different title from that alleged in the opposition, the object of the answer being to show, that in consequence of the resiliation, the opposant's title under the will had revived. 8 L. C. Hep., p 209, Romain vs. Duyal, and Jubin 0pp. S. C. Quebec ; Morin, J. 8i'e CoRPOKATXON, Election. Held, That allegations which form the chief support of plaintiff's action must be set out in the declaration, and cannot be pleaded by way of special answer to exceptions. 1 Jurist, p. 39, McGoey\». Griffin. S. C. Montreal; Day, Smith, Mondelet, J. Held, Thiit in an action to oblige defendant to make an inventory, where the defendant pleaded he had made one, and the pUintiff answers by a debuts d'in- ventaire, that the answer ia a departure. Bates vs. Foley. S. C. Montreal ; Cond Rep., p. 108. The plaintiff brought a petitory action for a lot of land, alleged to have been acquired by him by deed of 21st of January, 1856, setting up no other title in his declaration. The defendant pleaded that, before the date of the plaintiff's title, he had been in possession of the lot, as proprietor, for more than ten years, setting up no title. The plaintiff was permitted to fyle a special answer, in which be set up ante- rior titles. Held, That the action of the plaintiff must be dismissed, and both parties put out of court, each party paying his own costs, on the following grounds : 1. Because the plaintiff failed to establish, in evidence, his title to the lot in manner and form as set up in his declaration ; and because his rights depended on a possession and claim of title, anterior to that asserted by him. 2. Because the plea was irregular, and insufficient in law, failing to allege with sufficient certainty, an adverse title in defendant. 3. Bccatise the issue between the parties was irregular, and they ought not to have been permitted to proceed to evidence ; and because the evidence taken was not warranted by the pleadings. 10 L. C. Rep., p. 22, Osgood, App., Kellam, Resp. In Appeal : Lafontaiue, C. J., Aylwin, Meredith, Moadelet, J. T 'S 290 I PLBADINQ. Exception A la Forme. Held, That service of process cannot be made in the night. 1 Rev. de Jur.. p. 44, McGibbon vs. St. Louis dit Lalampe. K. B. Q. 1843. Held, That a breach of contract insufficiently alleged must be pleaded bv exception d hi forme. Pacaud vs. Hooker. K. B. Q. 1811. Held, That in actions on contract, the contract must be set forth in the decla- ration. Simard vs. Mathurin. K. B. Q, 1812. Held, That an exception h la forme cannot be received after a motion for particulars. Every motion is an act of submission to the jurisdiction of the court and consequently a waiver of all objections to the form of the summons and service and a motion for particulars admits the sufficiency of the declaration. Munroe et al. vs. LaliberU. K. B. Q. 1810. Held, That on an exception ct ta forme pleaded because the writ of summons is in French, and ought to be in English, or vice versa, the defendant must set forth the time and place of his birth. Jones et al. vs. Morin. K. B. Q. 1812. Held, That the want of intermediate days on the service of process may be pleaded by an exception els la forme. Hunter vs. Dagenay. K. B. Q. 1813. So held, and that the action will be dismissed quand (i present, on such excep- tion. Irvine et al. vs. Perrault. K. B. Q. 1819. Held, That if in the declaration there are material om'ssions or blanks left for the insertion of what ought to have been stated, the court will maintain an exception a la forme. Dallairc vs. Corriveavtt K. B. Q. 1819. Held, That in an action of revendication, the title on which plaintiff claims must be distinctly stated in the declaration, and if not, it is a good cause for an exception h la forme. Pouliot vs. Scott. K. B. Q. 1820. Held, That if the breach of a contract be imperfectly alleged, an exception « la forme is the proper plea, but if the breach is not at all alleged, advantage may be taken of the omission by a defense era droit. Wagner et al. vs. Farran, K. B. Q. 1811. Held, That misnomer cannot be pleaded by exception d la forme. Simoneau vs. Campbell. K. B. Q. 1818. Contra in Sharpies vs. Dumas. In Appeal, 1846. Held, That the want of a sufficient affidavit to hold to bail is not a subject for an exception A la forme. Patterson vs. Hart. K. B. Q. 1811. Held, That it is no ground for an exception d la forme that the sheriff did not certify the copy of the writ of summons served on the defendant. Wiltom, vs. Arnold. K. B. Q. 1817. Held, That a plea which in substano^ states that the defendant is not the person who is responsible to the plaintiff, is (if the matter be pleaded affirmatively) unejin de non recevoir, and not unejin de nan procider, Campbell vs. Peltier, K. B. Q. 1820. Held, That if the notice indorsed on a declaration be irregular, the irregu- larity is cured by the appearance on the return day, notwithstanding an excep- tion A la forme. Chamberland vs. Raymond. K. B. Q. 1820. Held, That advantage must be taken of an irregular incidental demand by an exception d Ui forme. Turner vs. Whitfield. K. B. Q. 1811. PLEADING. 291 rme, Simoneau d demand by an Held, That the description of a defenSant, resident in the town of Sherbrooke as being " of the Township of Orford," is sufficient, inasmuch as that town- ship comprehends within its limits the part of the town of Sherbrooke where the defendant resided. 2 Jurist, p. 39, Morse vs. Brooks et al. In Appeal : Lafon- taine, C. J., Aylwin, Duval, Caron, J. Held, That the designation of defendant's residence in a writ of summons as " St. Jean Baptiste," when in fact he resided in " St. Jean Baptiste de liouville," is suflicient. 2 Jurist, p. 193, Gigon vs. Bbtte. S. C. Montreal ; Day, J. Held, That it is necessary that an exception ct la forme be certified as a " true " copy " by the attorney pleading it. 2 Rev. de Jur., p. 38, Jacques vs. Hoy et ux. K. B. Q. 1845. Contrary held in Dubo'rd vs. Germain. 2 Rev. do Jur., p. 40. K. B. Q. 1846. Held, That on an exception d la forme pleaded because the writ of summons is in French, and ought to be in English, or vice versa, the defendant must set forth the time and place of his birth. Gagnd vs. Bernier. K. B. Q. 1819. Held, That misnomer cannot be pleaded by an exception to the form. Stuart's Rep., p. 56, Jones vs. McNally. K. B. Q. 1811. Held, That an exception h la forme on the ground that the summons should have been in the language of the defendant will be dismissed. 3 Rev. de Jur. p. 400, Samel vs. Joseph. K. B. Montreal ; Pyke, J. Held, That service of a writ and declaration after sunset is valid, if made before eight of the clock in the evening. 1 L. C. Rep., p. 27, Robinson vs. McCormack. S. C. Quebec; Bowen, Duval, Bacquet, J. Held, That an exception d, la forme on the ground that the bailiff who served the writ and declaration had styled himself a " Bailiff of the Superior " Court for the Circuit of Quebec " will be dismissed. 1 L. C. Rep., p. 40 McCallum vs. Pozer. S. C. Quebec ; Bowen, Duval, Meredith, J. Under the 12th Vict., c. 38, sect. 25, an exception a la forme was dismissed on motion, it being fyled with an exception of payment, which latter exception was held to have waived all vices of form in the process and declaration. 1 L. C. Rep., p. 364, Dubi vs. Proulx. S. C. Montreal ; Day, Smith, Mondelet, J. Held, 1. That a variance between the original writ and the copy, omitting in the former the word " ph-e" in describing the plaintiff, is a nullity which can- not be amended without the consent of the defendant. 2. That in such a case it is not necessary to inscribe en favx against the bai- liff's return. 2 L. C. Rep., p. 110, Theberge vs. Pattenaude. S. C. Montreal; Vanfelson, Mondelet, J. ; Smith, J., dissenting. Held, That an exception d, la forme, in which it is alleged that the contents of a paper writing purporting to be a copy of a declaration served upon defendant, are wholly different from the contents of the original declaration, and are discon- nected, absurd, and unintelligible, is sufficient. 5 L. C. Rep., p. 98, Doutre vs. The Montreal and Bytown Railioay Company. S. C. Montreal ; Day, Smith, Vanfelson, J. Held, 1. That in an action by a railway company against a stockholder for calls, it is sufficient that, in the heading of the declaration, the plaintiffs take the '\\ m m ^n i; 292 PLEADING. ffr Hr i: quality of a body politic and corporate, duly incorporated by act of parliament without a spi'ciGc allegation, in the body of the declaration, of such incorporation. 2. An objection in such case should be raised hy exception A In forme, and not by a (U/enae en droit. 5 L. C. Rep , p. 140, The St. Lawrence uvd Ottawa Or'tnd Junction Radway Company vs. Frothivgham. S. C. Montreal; Day Smith, Vanfelson, J. Exception Declinatoire— Cause of Action. Held, That under the judicature act of 1857 (12th Vict, c, 38^ a Circuit Court has jurisdiction in actions the cause of which have arisen in such circuit although the defendants reside, and have been served with process in another circuit. 1 L. C. Kep., p. 286, Hardy vt at. vs. Trottier et f tho fori'dnsuro will iidt 111' r('j(!ctoil oil motion, no turihfr procoodiiij^H hiivinj; hcon tai4cn by phiin- titr. \ .Jurist, p. 122, OHtdl vs. O'Brun. S. 0. Montreal, Monk, J. So lii'ltl in Mo/sun vs. lieuter et «/ S. U. MoiKniifcl; Burtiiclot, J., 4 Jurist, p. 2il9. Ili'ld, 1. That a plaintiff cnnii ' proceed rx yii-zr//' until a validlorecloHuro has been made, and that can only bo on u|(|ili'Mtion in writing lor not pleaded the facts. Stuart's Rep., p. 122, Pozc- et al. vs. CUiphnm. K B. Q. 18H. Held, That issue must be joined on a defense en droit before the case can be inscribed for hearing on such defense. 4 L. C. Rep., p. 175, Tremhkii/ \s, Trem- hlay. S. C. Quebec ; Duval, Meredith, J. Held, In an action against a person in his private capacity for damages, that acts committed by him in such capacity cannot be joined with other acts done in his capacity of justice of the peace. 9 r^. C. Rep., p. 4-42, O'Neil, App., Atimter. Resp. In Appeal : Lafontaine, C. J., Aylwiu, Duval, Caron, J. Held, That an exception setting up that the allegations of the declaration aiv unfounded in fact and in law, and then going on to set up facts, is irregulir and will be rejected. 1 Jurist, p. 196, Addison y&. Bergeron et al. S. C. Montreal; Day, Smith, Mondelet, J. Held, That cumulation d^ action cannot be pleaded by a preliminary plea or exception a In forme, but by a plea au fonds. 1 Jurist, p. 287, Hunter vs. Dm- win. S. C. Montreal ; Day, Smith, J. ; Mondelet, J., dissenting. Held, That an action en delivrance de dowiire coutumler is an action ofyia/- tage, and therefore all the heirs must be parties to the suit. Turcot vs. Dmm. K. B. Q. 1817. Held, That the fact that all the persons who ought to be joined as defendants in an action ex contractu are not parties to the suit, is rightly pleaded by an exception peremptoire tcmporaire in which those to be added must be named. Fraser et al. vs. Dunn et al. K. B. Q. 1812. Held, That all joint owners in an action in rem must be joint plaintiifs. Bellet et al. vs. Alison. K. B. Q. 1818. Held, That possessory an'^ petitory actions cannot be joined, and the vice i.s not cured by the consent of parties. Proof ordered on the possessory part ot the action only. Trepannier vs. Dupuis. Sewell C. J. ; Pyke'sRep., p. 24, 181(1, Held, That in an action en partnge dlierediti, all the co-heirs must be parties to the writ, as plaintiffs or defendants. Laverdiere vs. Lauerdiire. K. B. Q. 1816. Held, That if a debt is due to co-partners in trade, all of them must join in the action, for if it appears that there is one who is not a party to the suit, the action will be dismissed, saufa se pourvoir. McLeisk\s. Lees. K. B. Q. 1818, Held, That in an action on torts, each and every of the perpetrators may be sued jointly and severally. Peltier vs. Miville. K. B. Q. 1818. Held, That if the interest of several parties, entitled to any debt, be joint, anJ not B-jveral as well as joint, they must all be co-plaintiff's. A widow, therefore. cannot sue alone for a debt due to her and her deceased husband jointly, if there be a will a id an executor. Coupeau vs. Chamberland. K. B. Q. 1818. Held, That if a written agreement be made with one person only, and solely PLEADINa. 301 e joint plaintifffi. Sec ill his own name, that person must bring his action alone, although others may be jointly interested with him. Gariepy et ul. vs. Rochelle. K. B. Q. 1818. Damages, Joint and Several. PAaXiNErtSHiP, Accounting. •• Partage. " Fraud, Insolvency. " Evidence, Parol. , Joint Pleas. Held, Where defendants appeared and pleaded a joint plea, and also each J scp:aate plea, that, on motion, the separate pleas will be dismissed as irregularly |ile;ided. Stephens et al. vs. Watson et ah S. C. Montreal j Day, Smith, J. Cornl. Hep., p. 82. Language of. Held, 1. That under sects. 86 and 87 of the 12th Vict., c. 38, it is sufficient, ill a pleading, to set out in plain and concise language the facts relied on, to the interpretation of which the rules of construction, applicable to such language in the ordinary transactions of lite, may apply. 2. The nullity of a deed may be pleaded by exception without incidental ijemand or direct action. 8. That such nullity may be pleaded at any time by exception according to the rule of law qaoe tempordlia sunt ad agendum, pcrpetua sunt ad excipiendum, i L. 0. liep., p. 325, Ilalcro, App., Delesderniers, Kesp. In Appeal : Panet, Aylwiu, Mondelet, J. ; Holland, J., dissenting. NON NUMERATiE PECUNI^a!. Held, That to a written contract to pay money, non numeratce pecunioi may be pleaded under some circumstances. Fortier vs. Beauhien. K. B. Q. 1809. Number of Pleadings. Held, 1. That a party who has demanded special answers to his exceptions is thereby barred from moving to reject them. 2. That it is lawful for a defendant whose exception has been answered spe- cially, to reply specially to such answer, and this without obtaining permission to that effect. 12 L. C. Rep., p. 151, Atty. Gen. pro Reg. vs. Belleau. S. C. Que- bec ; Taschereau, J. Held, That an exception to matter pleaded by exception may be fyled even under the ordinance 25th Geo. 3, c. 2, sect. 3. Stuart's Hep., p. 106, Pacquet vs. Guspard. K. B. Q. 1817. Held, That a special replication cannot, under the 25th Geo. 3, c. 2, sect. 13, be fyled by a defendant to a special answer of the plaintitf. 4 L. C. Rep., p. 411). See note, p. 421, Morrison vs. Kierskowski. S. C. Montreal ; Day, Van- felson, Mondeiet, J. Held, That a special replication may be pleaded to an answer by plaintiff con- tainiug facta not stated in the declaration, and this >^ithout first obtaining the III Iti'' * 1 1 1 ■ 1 1 ;'.y 302 PLBADINQ. leave of the court. 6 L. C. Kep., p. 159, Kierskowski, App., Mprriion, Resp, In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Particulars. Held, That a hill of particulars is in the nature of an articulation de /alts. but it is also a confession. Therefore, although it may be amended as to a mere error, it cannot be amended in an essential matter of substance. Reiffenstien \f. Eohinson. K. B. Q. 1821. Held, That in an action for the recovery of " £20 10s., balance of account " acknowledged and admitted," the plaintiff will be obliged to furnish particu- lars, notwithstanding his declaration that he rdlies wholly upon the acknowledg- ment. 10 L. C. Rep., p. 77, Labbi vs. McKenzie. C. C. Quebec ; Stuart, .J. Payment. A plea of general issue was fyled with an exception of payment of the note sued for. Neither party adduced evidence, and judgment was rendered for plain- tiff, on the ground that the plea of general issue was not compatible with the exception, and that the allegations of the exceptions were divisible, and exempted plaintiff from proof of the note. 1 L. C. Rep., p. 360, McLean vs. McCormack. C. C. Quebec ; Power, J. Held, That a plea of general issue is waived, when fyled with a plea of pay- ment or compensation. 1 L. C. Rep., p. 487, Casey vs. Villeneuve. C. C. Quebec ; Power, J. Held, That payment made during pendency of the action, cannot be set up by intervention but by plea. Such an intervention flismissed on motion. 2 L. C, Rep., p. 304. Lyman et al. vs. Perkins. S. 0. Montreal ; Day, VanfelsoD. Mondelet, J. Held, That a plea of payment alleged to have been made at different periods previous to the institution of the action, but without stating the dates and amounts of such payments, will be dismissed on demurrer. 10 L. C. Rep,, p. 194, Les Dames Religieuses Ursulines de Quebec vs. Perry. S. C. Quebec: Stuart, J. Held, That a plea of payment may be pleaded with a cU/ense en fait, o Jurist, p. 137, Sarault vs. Ellice. S. C. Montreal ; Badgley, J. Held, That in an action for work and labor, proof that the defendant and other workmen employed by the defendant were paid weekly, and that the plaintiff had not been heard to complain of non-payment is sufficient presumptive proof of payment against a stale demande. Bonneau vs. Goudie. K. B. Q. 1819. Held, That where goods are sold on credit for a fixed period, the term of pay- ment must be pleaded affirmatively by an exception peremptoire temporairt Racey vs. Stephenson. K. B. Q. 1821. Payment by unpaid note. See Bills and Notes, Prescription. Payment. See Opposition, Affidavit, Payment. See Contract, Payment. *■ M ?i! Ii' PLEADING. Repleader. 303 Held, That where the issue is immaterial or informal, the court will order a repleader. Forhes vs. Atkinson. K. B. Q. 1810. Held, That a repleader may he awarded at the trial, if the issue taken is there found to be immaterial. Vocelle vs. Faucher. K. B. Q. 1818. Replication to General Answer. Held, That suoh replication is waived by the consent of defendant to subse- quent proceedings. See cases in note where court set aside all subsequent pro- ceedings for want of such replication. 2 Jurist, p. 288, Greenshields vs. Uau- thier. S. C. Montreal; Smith, J. Held, That a special replication, by a defendant, to the spemal answer of a plaintiff is irregular, and that the special matter will be rejected on motion, where it could have been regularly put into defendant's plea. 5 Jurist, p. 75, Tor- rance vs. Chapman et al. S. C. Montreal ; Monk, J. Held, That upon a rule to reply to a plea or opposition, if the replication is not fyled in time, the opposition will be dismissed on motion. Tremain vs. Tetu. K. B. Q. 1821. Held, That defendant's motion to discharge an inscription on the merits, for want of a replication to plea, plaintiff being foreclosed from fyling it, will be dis- missed. Genier vs. Charlebois. S. C. Montreal ; Cond. Rep., p. 1. Held, That a replication to a plea is necessary. Boudreau vs. Gascon, S. C. Montreal ; Smith, Mondelet, J. ; Cond, Rep., p. 106. Special Answer. ee Corporation, Elections. Striking from Fyles. Held, That the court, on account of the revision to which their proceedings are subject in appeal, will not take the pleadings from the fyles, but leaving them there, will proceed as if they were not fyled, if they are irregular, or order a re- pleader as circumstances may require. Wolff ya. Amiot. K. B. Q. 1812. Tender. Held, That a plea of tender (pffres reeles) mnst offer what it admits to be due in principal and interest with one shilling costs sauf d, parfaire. Boucher vs. Asselin. K. B. Q. 1813. Held, That in an action to compel a party to execute a deed of sale, the plain- tiff is not bound to tender by his action and deposit in court the purchase money, more particularly if the defendant pleads that he is unable to execute the deed. 4 L. C. Rep., p. 449, PerrauU vs. Arcand. S. C. Quebec ; Duval, Caron, Meredith, J. Held, That a tender of principal and interest after the issuing of the writ, butf before service of it, is insufficient without a tender of costs. 4 Jurist, p. 310, Boucher et al. vs. Lemoine et al. S. C. Montreal; Badgley, J. Held, 1. That a tender by notaries is null unless it sets forth in detail the different moneys which were so tendered. , ] ii>t ] i ; '/ .'\ ljlil 'i 1 1 1 1 "i : \ :/1 4 « 804 PLEADING. 2, That the execution of a judgment in an action for aprix de vente will be stayed until the plaintiff shall have tyled at the grcjfe security in the oidiniirv form (c/t III forme ordinaire) against mortgages affecting the property G Jurist p. 241, Perms vs. Beaudin. S. C. xMontreal ; Berthelot, J. Tender to bailiff declared valid. Prevostd, No. 31. Confirmed in Appeal Cons. Sup., No. 19. Tender into court; action for money against clerk of court, ^ee Officer OF Court. Time of Fyling. Held, That by the 25th section of the Judicature Act (12th Vict., c. 3S,) all pleas, whether as to form or merits, are reijuired to be fyled at one and the same time, within the delay specified in that section. 1 L. C. Hep., p. 157, Th British Fire and Life Insurance Company vs. McCuaig et ul. In Appeal : Stuart, Panet, Aylwin, J.; Holland, J., dissenting. Held, 'J'hat pleas to the merits must bj fyled at the same time with the di- fcnses au fonds en droit, and the court will not enlarge the delay of pleaJinir to the merits until a difiise en droit to the declaration has been disposed of. 1 L. C. liep., p. 216, Pirrie vs. McHugh et al. S. C. Quebec ; Bowen, 0. J., Duval, Meredith, J. Held, That the eight days within which contestations of reports of distribution must be made are not juridical days. 2 L. C. Rep., p. 9. Ex parte Burroughs. Held, That where a motion to quash a writ of summons has been taken en ddibire and dismissed, the defendant will not be allowed, after the expiry of the four Jays mentioned in the 16th Vict., c. 194, sect. 21, to fyle an exception ah forme, the del ly not being suspended by the dilibirL 4 L. C. Hep., p. 97, McFarlane vs. Worrall, and The Officers of Her Majesty's Ordnance, T. S. S. C. Montreal; Day, Smith, Mondelet, J. Held, That a defense en droit is not a preliminary plea within the meaning of the 21st section of the 16th Vict , c. 194, and need not, therefore, be fyled within the four days fixed" by that section. 4 L. C. Rep., p. 156, Benson vs. Ryan. S. C. Quebec ; Bowen, C. J., Duval, Caron, J. Held, That an exception a la forme fyled on the ffth day after the return of the action, the fourth being a Sunday, will be rejected on motion. 9 L. C. Hep., p. 231, Br ck et al. vs. Theherge. S. C. Quebec; Stuart, J. Held, That if a rule to plead expires in vacation and the plaintiff does not demand a plea, he must move in term for leave to proceed ex parte. Schokfield vs. Fortier. K. B. Q. 1821. Held, That if a bill of particulars, which is ordered in term, is not delivered until the vacation, the rule to plead expires in vacation. James vs. Goiidie. K. B. Q. 1819. Held, That copies of pleas fyled, miist be served on the plaintiff's attorneys ; if not, the plaintiff may move to proceed vx parte. Sindov, wa. .Vhite. K. B. Q. 1816. Held, That if a rule to plead expires in vacation, a demand of plea must be made before a foreclosure can be fyled. Lee vs. Whitfield et al. K. B. Q. 1812. t PLEADINO. 805 Union of Causes. Held That it is not competent to unite two causes between the same parties, on the ground that the matters in contest in both are identical. 1 Jurist, p. 249, Sinuird vs. Ferrault. S. C. Montreal ; Day, Smith, Mondelet, J. Writ — Service. Held, That if an application be made to compel the sheriff to return a writ aifiiri ficius before the day fixed in the body of the writ, the court will not errant the application if there be no evidence that the sheriff has actually been ffuilty of Home neglect or omission. Stuart's llep., p. 57, Dorval vs. L'Esper- \m. K.B. Q. 1811. Held, That the defendant must be called on the return day of a writ, but the writ and declaration may be brought in at any time afterwards during the day upon motion of either party. 1 Rev. de Jur., p. 400, Dulton vs. Sanders. K, B. Q. 1846. Held, That the court not having sat until half-past- eleven o'clock at night (en the 7th January, 1847) the return of a writ calling the defendant at that hour was insufficient to enable the plaintiff to proceed ex parte, and the action was dismissed. 2 Rev. de Jur., p. 48, Citi/ Bank vs. Luurin. Q. B. Quebec ; Panet, Bedard, J. ; Stuart, C. J., dissenting. Held, On demurrer, that under the 12th Vict., c. 38, a writ of summons addressed to any of the bailiffs residing in a district, will be valid if served by a bailiff only appointed for such district. 3 L. C. Rep., p. 194, TSlu vs. Martin. S. C, Quebec; Bowen, 0. J., Duval, Meredith, J. Held, That the court at Montreal has jurisdiction over a defendant served within the new district of Bedford, the writ being the commencement of the action, and having been issued before the proclamation of the new district. 3 Jurist, p. 26, Montz vs. Ruiter. S. C. Montreal , Smith, J. Held, That the declaration must be accompanied by a writ of summons, not- withstanding that the defendant has appeared by attorney. 3 Jurist, p. 53, Taylor vs. Shiical et al. S. C. Montreal ; Day, J. Held, That a writ of summons addressed to any of the bailiffs of the S. C. for the district of Montreal or Richelieu, there being defendants in both districts, is good, and that two original writs are not necessary. 5 Jurist, p. 253, Guiore- mntys. Leandrefihet al. S. C. Montreal ; Smith, J. Held, That a writ addressed " to any of the bailiffs in and for the District of " Montreal," is not null, the writ, on its face, showing that it issued from the Superior Court, Montreal. 4 L. C. Rep., p. 28, Castle vs. Wrigley. S. C. Montreal ; Smith, Yanfelson, Mondelet, J. Held, That a writ addressed " to any of the bailiffs in and for the District " of Montreal, in the Province of Canada " is bad. 4 L. C. Rep., p. 29, David- m et 806 PLEADING. Held, That service of a writ of summons upon a defendant, under a Kcaled envelope, by a bailiff who is ignorant of the contents of such envelope, is i|lei;a) 6 L. C. Rep., p. 281, Peoples Bunk vs. Ougy. S. C. Quebec; Bowen, C. J, Meredith, Badgley, J. Held, An exception a la forme on the ground that one of the plaintiffn wa« atyled " Kickard " instead of " Kicard " will bo dismissed on motion. G L. C Rep., p. 483, Latour et al. vs. Maa&on. S. C. Montreal ; Day, Smith, Monde- let, J. Held, That a summons to appear " before our justices of our said Supt'rii.' " Court " is sufficient. 3 Jurist, p. 30li. McFarlane vs. Bel/iveau. is. C. Montreal ; Badgley, J. Held, 1. That the exhibition by the bailiff, of the original pleading, or paper at the time of service of the same is not necessary. 2. That whereby the copy of the writ served, the defendant was summoned to appear on the 24th April, 1860, instead of on' the 24th April, 18G1, as in the original, the court has no power to permit the plaintiff to amend the writ. Motion to dismiss except ion a Id forme dismissed; also a motion to amend the writ "^ "fiiisaiU sijnijier uu dtfendcur une vraie copie du dit brtfde sommntioii origi- ^* nal. " 12 L. 0. Rep., p. 23, Bltis vs. Lampson. S. U. Quebec; Stuart, J, Held, That the delay for fyling an exLiption h la forme, when security for costs is demanded, will run from the day when security is given. 5 L. C. Rep., p. 199, Smith vs. Merrill. S. C. Montreal; Day, Smith, Vanfelson, J. Held, That an ^caption d, la forme setting up that the defendant, described in the writ and declaration as prdtre et curi of the parish of St. Jean iiaptiste, instead of St. Jean Baptiste de Rouoillc, the name by which the parish was erected, is suflicieiit, the description in the writ not being shown to be erro- neous and false. 8 L. C. Rep., p. 271, Gig n vs. Hotte. S. C. Montreal ; Day,.j, Held, That an exception A la furme which contains erasures and marginal notes, not referred to at the bottom u^' the plea, is, nevertheless, good. 10 L. C, Rep., p. 399, Blackistou vs. Hosa. S. C. Quebec; Taschereau, J. Held, Where an exception d lafrrme was tyledon the ground that the defend- dant, styled in the writ menuisier, was in fact a " contractor and trader." 1. That the defendant was proved to be a menuisier, and had so'stylcd him- Helf in authentic deeds. 2. That the quality of contractor (^entrepreneur) is reconcilable with that of menuisier. Judgment reversed.. 10 L. C. Rep., p. 458, Boucher vs. Lemoint et al. In Appeal : Lafontaine, C. J., Aylwin, Duval, Mondelet, J. Held, That an exception d, la forme on the ground thdt the bailiff had styled himself a " bailiff of the Superior Court" without adding " for the district of Montreal " will be dismissed on the ground that the court was bound to know the signature of its own officer. Rowbothamtva. Scott, S. C. Montreal; JDaj, Smith, Mondelet, J. Cond. Rep., p. 2. Held, That the four days for fyling an exception d, la forme run while the case is en delibire. McFarlane vs. Worrall. S. C. Montreal ; Cond. Rep., p. 6. Held, That an exception h Ui forme will be maintained on proof that the plainti had left the house where process was served, and gone to California a month befon PLBADiMG. 307 )lcuding, or paper, ihe service. Kelton VB. Manton. S. C. Montreal ; Day, Smith, Mondelet, J. Cond. Kep., p. 79. Held, Thatu plaintiff is bound to know his own name, and to tell it todcfcnd- ut. Action dismissed. ParadU va. Lumire. S. C. Montreal; Cond. J' "»., .81. Held, That an exception d la forme setting up service of process at six o'clock itho morning, will bo maintained and the action dismissed, the rule of practice rAiiiiriiif; that service be made between 8 o'clock a. m. and 7 o'clock, p. m, l(,f((r/((He vs Jam>eson. S. C. Montreal ; Cond. Hep., p. 89. Hold, Thiit a second preliminary ploa fyled after the four days, and after di»- inu«il of a first preliminary plea, will be dismissed on motion. Cowan vs. JJuT' im. S. C. Montreal ; Cond Rep.', p. 105. Held, That an exception A la forme fyled by parties not styling themselves I defendants cannot legally be pleaded. Exception rejected on motion. 1 Jurist, p. 84, Grinlon vs. Montreal Steamship Company, fcj. C. Montreal; Smith, Mondelet, Chabot, J. Held. That the merits of an exception d, hi forme cannot be tested on a motion Itoilismiss it. 1 Jurist, p. 99, Clarke et al. vs. Clarke et al. S. C. Montreal; I Smith, Moiulelet, Chabot, J. Held, 1. That a plaintiff may set up new facts to shew that defendant cannot I jvail himself of his exception d, la forme. 2. The sufficiency of these facts cannot be tried on motion to reject plaintiff's iinswer. 1 Jurist, p. 178, The Beacon Company vs. Whyddon. S. C. Mon- [treal; Day, Smith, Mondelet, J. Held, That an exception a la forme setting forth that defendant is described I B of "St. Hyacinthe" simply, whereas he lives in the parish of " St. Hyacinthe le Confes.'ieur," and that there are three distinct places in the district of Montreal*, I known respectively as the town of St. Hyacinthe, the parish of St. Hyacinthe, lindthe parish of St. Hyacinthe le Confesseur, is bad in law. 1 Jurist, p. 183, \l^ninetai. vs. Chanird. S. C. Montreal; Day, Smith, Chabot, J. Held, That irregularities and informalities in a aaiaie arrit after judgment I cannot be attacked by exception d, la forme. 3 Jurist, p. 93, Mulson vs. Bur- Iwuj/is, and B ink of Montreal, T. S. S. C. Montreal ; Badgley, J. Held, That service of process ad respondendum at the last domicile is not good. Wdicell vs. Moffalt. K. B. Q. 1809. Held, That there must be an intermediate day for every five leagues of die- llucc on service of process ad respondendum. Hamilton vs. Beauther. K. B. Iq.1810. So in Poidln vs. Plnnte. K. B. Q. 1819. Held, That the defendant in a reprise d' instance forcie must be called into |tlie cause by process ad respondendum. Taschi vs. Levasseur. K. B. Q. 1811. So with -OLgarant simple. Gauthier vs. Tremblay. K. B. Q. 1811. Held, That service of process at an elected domicile is good if it is stipulated linthe contract on which the suit is founded, that such service shall be valid. mm vs. McNabb. K. B. Q. 1811 . Held, That the omission of the county or parish (in which process ad retpon- I m 808 PLBADINO. f . I ikndiim has been served) in the sheriff's return, ia not a nuWU d'rxploii Lambert vs. R,>herge. K. B. Q. 1813. Hold, That a return of service at the domicile of defendant without nayini; that the officer spoke to any person, is no service in a default cau»o. Cluaei n Brogg. K. B. Q. 1818. Held, That service upon a " growing person " is no service ; a growin;; perttog may be a child of an hour's age. There is no certainty in the description. Ptr. rault vs. Bin. K. B. Q. 1820. Held, That a return of service of process ad resp. upon a grown person on the timber attached, is no service, and ounnot be proceeded upon. McDonuhl vs. McDonell. K. B. Q. 1811. Held, That upon process ad resp. returnable in a preceding term, no rulf upon the sheriff to make a returii will be allowed if the wiit has been ivied Fielders vs. Hoyt. K. B. Q. Held, That the rule of practice which requires the plaintiff to indorse upon a writ of capias ad resp. the sum for which bail is to he taken is only diructorv to the sheriff, and if it bo not obeyed, the omission does not operate u nulliu d'exploit. Fitzgerald vs. Ellis. K. B. Q. 1818. Pleading — Generally. Held, That a defendant may, by eOiception, invoke the nullity of his advcraai^i' title, without an action or incidental demand to rescind the same. 1 L. C Rep., p. 481, Officers of Her Majesty's Ordnance vs. T«ylor ei al. In Appeal Held, That under the 12th Vict., o. 38, sect. 85, which enacts that in ant j pleading " every allegation of fact, the truth of which the opposite party shall not ixpressJy deny or declare to be unknown to him, shall be held to be admitted " by him," it is necessary in a di/enae au j'undu en /ait expressly to deny everv fact alleged in the plaintiff's declaration, otherwise such facts will be held totK-j admitted. 2 L. C. Rep., p. 105, Copps vs. Copps. In Appeal : Fanet, Ayl win, J. ; Rolland, J., dissenting. See note, p. 109, St. John vs. Dtlisle, where the judges of the Superior Court, Montreal, declared they did not agree with the judgment, and did not consider! themselves bound by it, there being a dissenting judge, and the Chief Justicenolj being present. Also report of St. John vs. Delisle, 2 L. C Rep., p. 150, and note, p. 143,1 citing case of McGregor vs. McKenzie et al., where a similar decision was given. I Held, In Appeal : Rolland, Aylwin, J., That an affirmative plea, such assetl off, may be fyled together with the general issue. Judgment below reversed. 3| L. C. Rep., p. 421, Clarke, App., Johnston, Resp. Held, That defendant will not be allowed to plead specially that which amouDtel to no more than a general issue, and payment and tender must be pleaded bywijj of peremptory exception perpituelle en droit. See also as to principles of pleading generally. Forbes et al. vs. Atkimit\ Pyke's Rep., p. 40, Sewell, C. J. 1810. Same case, Stuart's Rep., p. 106, note. t 11; ' PRESCRIPTION. Exception a la Forme. See Oapiah, Affidavit. " " *' See Damaqgh, Slunder. 11 « << appeals from. See JuuuMENT, Iniorlooutory. Plkadinq Argumcntutivo. See 1)amauk8, Slander. " Cause uf Action. See Capias. « " '< '' Exception declinatoire. " See Amendment. " Amendment in Date. See Bills and Notes, Error in date. " D18CU88ION. See Action Hypothecary. " llules of. See Stuart's Reports, p. 106, note. '< Cuiuuliition. See Pleading. Joinder. " FoROERY. ^ee Bills and Notes, Forgery. POLICY OF INSURANCE. Stc Insurance. 68 et al vs. Atkim] POUND. See Corporation, Roads. POWER OP ATTORNEY. Ste Evidence, Power of Attorney. PRESCRIPTION. Against Wages. Held, In an action against the represen atives of a person, deceased, brought within a year of his death, for eleven years, wages (as menagire ef^ouvet naute) Kcrucd down to the time of the death, that the prescription, under the 127th article of the Custom of Paris, even if the article were in force, is not applicable. 8L. C. Rep., p. '295, Gtnuteney ye. Lussier et al. S. C. Montreal ; Smith, J. Held, In Appeal : That the prescription of the article was applicable, and that the heirs of the master had a right to tender their oath, as well in respect to the rate of wages, as in respect of payments, not only of arrears, but of the jvages of I the last year. !) Jj. C. Uep., p. 433, Lusder e' ul, App., Gluutenty, Resp. In I Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, J. Same case 2 Jurist, p 1 85. Same case, 3 Jurist, p. 299. Held, 1. In an action for 'wages as purser of a steamer, the plea of prescrip- tion of hIx years, under the 10th and 11th Vict., c. 11, is a good plea. 2. That no interruption of prescription is made out by proving that the defend- iDt told the plaintiff that if anything was found to be due him, it would be paid. ■i' 1 r '■ 'fiiii 810 PRBSORIPTION. 8 L. C. Rop., p. 302, Strother v«. Torrance. S. 0. Montreal ; Mnndelet, ,1 Stiino ciiHo, 2 Jurint, p. 1U3. Hold, Tliiit a plea of profloription to bo valid, agaiiiHt a dcniuiMl for wan^ by a domestic, niuat tender defendant's oath of payment, and aver tlmt the om. ployer kept ie;,'ular books. 1 JuriHt, p. 83, Hogan et id. vh. JScott ct ul. 8, C N(mtreal ; Smith, Mondclet, Chabot, J. Held, In an aetion for twenty-four years' wages as servant, menaghr^ tho m. Boription uHmi/*; of the coM. Lefehvre. S.C.Montreal; Berthelot, J. Appealed. Held, That to acquire a title by prescription under the French law, there must be a possession naturellc. 2.L. C. Rep., p. 369, Stuart vs. Bowman. S. C, Montreal ; Smith, Vanfelson, Mondelet, J. Physician. See Registration, Physician's Fees. Held, That the prescription of five years' for medical attendance and medicine, under the 11th Vict., c. 26, sect. 19, is an absolute prescription, a bar to the action, fin de non recevoir, and not a mere presun.ption of payment. 11 L. C. Rep., p. 200, Bardy vs. Huot. S. C. Quebec ; Stuart, J. Held, 1. That a plea of prescription under the 10th and 11th Vict., c, 11, cannot be invoked against the action of a physician for services and medicines. 2. The plaintiflF may, by fails et articles, demand the oath of defendant in support of a plea of payment and prescription under the 1 25th article of the Cus- toms of Paris, by which plea he tendered oath. 1 Jurist, p. 181, Buchana* et al. vs. Cormack. S. C. Montreal ; Day, Smith, Chabot, J. Prothonotary or Clerk's Fees. Held, That the prescription of three years established by the ordinance of 1510, declared by the 12th Vict., c. 44, to form part of the civil law of Canada, is not an absolute prescription, and that, therefore, payment must be alleged, and oath tendered. 1 L. C. Rep., p. 167, Scott vs. Stuart. C. C. Quebec ; iJuval, J. Held, That to support a plea of prescription against a demand for prothono- tary's fees, there must be evidence that final judgment was rendered in each case, for more than three years before suit. 1 L. 0. Rep., p. 328, Perrap,U vs. Bacr quet. S. C. Quebec; Bowen, C. J., Meredith, J. See Landlord and Tenant, Privilege. F«»R Costs. See Costs. Foft Assessments. See Corporation, Assessments. See Action, Revendication. " Lien. " Registration, PRINCIPAL AND AGENT. 318 See Schools, Prescription. Prescription, against Fraud. See Fraud, Kevocntion. " llulc in respect of exceptions. See 2 L. C. Rep., p. 325. " Bills and Notes. See Bills and Notes, Prescription. " Of Tithes. See Tithes. " Against Rent. See Landlord and Tenant, Prescription. " Against attorney's costs. See Attorney, Costs. " See Railway Company, Prescription, " Of Bailiff's Fees. eea rendered and leceived without objection. Smith, Moudelet, Chabot, J. Agent's Power. Held, That an agent has no authority to sign and discount a promissory note, nlthough he has a written power to manage, administer, sell, exchange, and con- cede, the real and personal estate of his principal, and to collect, compound and xrbitrate all claims and debts, with a general clause, " to do all acts, matters, and " things whatsoever, in and about the property, estate and affairs of the princi- " pal, as amply and effectually, to all intents and purposes, as the principal him- '' self could have done in his own person, if the said power of attorney had not ■• been made." 2. That such agent is an administrator omnium bonoritm with no power to bor- row except for purposes within the limits of his administration. 3. That the admissions of the agent to an accommodation indorser, are not evidence in a suit against the principal by the party who afterwards discounted the note. 5 L. C. Rep., p 411, Castle vs. Babi/. S. C. Montreal ; Day, Smith, Mondelet, J. The plaintiffs, hearing that one of their country debtors was fraudulently mak- ing away with his property, sent a clerk to the spot to make inquiries, but with- out special instructions or power. The clerk took the debtor's note for 5s. in the £, which was sent back to the debtor. Held, In an action on the original debt, that the receipt and discharge of the Hi! ; p 1 1 ' ■' 'MiliiJll 814 PRINCIPAL AND AGENT. clerk Wi-e not binding on the plaintiffs, the clerk having exceeded his powers. 11 L. C. Rep., p 71, Si'i/moiir etui. vs. Woodhiiry. S. C Montreal ; Badj^ley, J. Held. That an attorney or agent cannot bring an action in his own name for the preservation of the rights of his principal, notwithstanding an express agree- ment by the debtor that such action might be brought in the agent's name, t Rev do. Jur. p. 43, NesbU et at. vs. Targeon et al. Q. B. Quebec, 1845. Held, That upon a contract concluded by an agent or attorney, acting for his principal, the action must be brought in the name of the principal. Allsopp vh. Huot. K. B. Q. 1817. Held, That a special undertaking to pay a note (negotiable but not indorsed) to the agent of the payee in consideration of his forbearance for a time, is suffi- cient to enable the agent to support an action ex contractu in his own name for the amount of the note. Aijlwiii vs. Crittenden. K. B. Q. 1820. Agent, Note of. See Bills and Notes by Agent. Auent's right to take affidavit for Capias. See Capias, Affidavit. Auctioneer. Held, That an auctioneer who sells a ship without naming bis principal, can- not maintain an action for the sum offered by the last bidder, without tendering a valid bill of sale. Barns vs. Hart. K. B. Q. 1810. Held, That an auctioneer who sells without naming his principal is liable in damages for the non-execution of his contract. Hart vs. Burns. K. B. Q. 1812. See Sale of Goods, Auction. Broker. Held, That where a broker in bought and sold notes, assumes to be the mutual agent of the parties, the mere fact of his being a broker will raise no legal pre- sumption that he was such mutual agent, and that in the absence of sufficient evidence of his being authorized by both parties to sign the bought and sold notes, they will not constitute a valid memorandum in writing within the mean- ing of the statute of frauds. 1 Jurist, p. 19, Syme et at. vs. Heward. S. C. Montreal ; Day, Mondelet, Badgley, J. Commission. Held, That a charge of 5 percent, commission for the collection of debts, doew not necessarily imply a warranty on the part of the agent making such charge. 3 Rev. de Jur., p. 22, Glass vs. Joseph et al. Q. B. Montreal, 1847. Principal. Held, That a principal is not liable for money paid to his sgent by mistake. in excess of an amount actually due, unless it be shewn that he received, or bene- fitted by, such payment. 1 Jurist, p. 288, City Bank vs. Harbour Comnm- tioners of Montreal. S C. Montreal ; Day, Smith, Mondelet, J. Held, That the principal may sue, in his own name, upon a contract made by PRIVILEQE. 316 his aj!;cnt, in the aj<;ent's own name. 2 Jurist, p. 161, Read vs. Birks. C. C, Montreal : Mondelet, J. AoKNT as to bank, being. See Execution, T. S. Ratification by Principal. JScc Coupohation, Mortmain, Bequest. 1 i: PRIVILEGE. Op Hotel-Keeper. Held, That a hotel-keeper has no lien or privilege on a piano, for the rent of % room hired for a night, for the purpose of giving a concert, by a person who had hired or borrowed the piano and had left without paying for the room ; and the owner has a right to revendicate the piano and obtain damages for its deten- tion from such hotel-keeper. 4 L. C. Rep., p. 414, Brown vs. Hogan et al. S. C. Montreal ; Smith, Mondelet, J. i Op Vendor. Hold, 1 . That promissory notes signed by the debtor, and payable to the creditor's order, do not, if dishonored at maturity, effect a novation of the debt, if the intention to novate is not clearly expressed by the creditor at the time they are received. 2. That the words dont quittance in a deed of sale, do not amount to such expression of intention to novate. 3. That the vendor of a chattel sold, and for part of the price of which such unpaid notes were received, is privileged on the proceeds of the sale of it, under a writ of execution in his debtor's possession, on production of the notes, and to the extent represented by them. 4. That neither the exercise by the vendee of rights of property in the chattel sold, nor the making of repairs, will defeat this privilege if the identity can be established. 11 L. C. Rep., p. 29, Nfta/ etal. App., L'impxon, Resp. In Ap- peal: Lafontaine, C. J., Duval, Meredith, Mondelet, J. ; Aylwin, J., dissenting. See Action Revendication by Vendor. ^ WAGEg. Held, 1. That the master of a steamer has a privilege for the amount of his wages on the proceeds of the steamer, preferable to a party claiming under an assignment by way of mortgage. 2 The privilege of workmen for wages, and materials furnished, exists only so long as they retain possession of the vessel. 1 L. C. Rep., p, 145. S. C. Que- bec ; Bowen, C. J., Duval, Meredith, J. For Assessments. See Corporation. Of Sheriff for Poundage. S'-e Execution, Partage. Privilege of Parliament. See Parliament. '■:l!»'V f , >■ fliitl) 316 PROHIBITION. PRIVITY. See Contract, Privity. " GoRPUiiATiON, lload». PRIVY COUNCIL. See Appeals, Privy Council. PROBABLE CAUSE. See Damages, Malicious Arrest. PROBATE OF WILL. See Will, Probate. k£2 ; I pi PROCESS. Service op. See Corporation, Foreign service upon. " at Greffe. See Corporation, Actions by. " See Plkadinq Writ— Service of. " « Writ. PROCES VERBAL. See Execution, Formalities of. See Water, Proems Verbal. PROHIBITION. Vice Admiralty. Held, 1. That a prohibition may issue frcm the Court of King's Bench to stay proceedings in the Court of Vice Admiralty. 2. That a suit for salvage of a ship stranded on a sandbank in the river St. Lawrence, the locus in quo being infra corpus comitat'BLs^ the case was not one of admiralty jurisdiction, and a prohibition will be granted to stay proceedings therein. 3. The river St. Lawrence, from the west end of Anticosti to the eastern line of the district of Three Rivers, is within the district of Quebec. Stuart's Rep., p. 21, Hamilton et al. vs. Frater et al. K. B. Q. ; Feb., 1811. RAILWAT COMPANY. Commissioners Court. 817 Held, That a writ of prohibition ought to be granted as of right, when a Commissioners' Court has exceeded its jurisdiction, e. g., as when the defendant is not domiciled within its jurisdiction. 7 L. C. Kep., p. 403. In Chambers, Quebec ; Meredith, Morin, J. Quo Warranto. Held, That a petition or requite Ubellie under the 12th Vict., c. 41, for the issuing of a writ of quo warranto, which set forth the ground of complaint in general terms, is sufficient, without setting forth the details. 10 L. C Rep., p. 289, Fraser et ah, App., Buteau, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Mondelet, Badgley, J. Held, That on a requite lihelUe in the nature of a quo warranto, & defendant may be examined on faits et articles. Lynch vs. Papin. S. C. Montreal ; Cond. Rep., p. 71. PROTEST Op Bills and Notes. See Bills and Notes, Protest. Fob Short Delivery. See Carrier, Survey. ''s Bench to RAILWAY COMPANY. Award. Held, By the Superior Court, That under the circumstances of this case, the contractor'of the company has power to submit to arbitrators thi valuation of a piece of land, required for the construction of the railway, and award of arbitra- tors maintained. In Appeal, Judgment maintained under the 12th Vict., c. 37, sect. 10. Two judges, Lafontaine, C. J., and Morin, J., being in favor of the judgment, and two, Aylwin and Badgley, J., for reversal. In Appeal : 6 L. C. Rep., p. 129. Award— Oath. Held, That a notarial copy of an award of arbitrators under the 13th and 14th Vict., c. 154, and the certificate of the notary that the arbitrators were sworn, is not legal evidence of any oath having been taken, or award rendered, inasmuch as a notary has no authority to receive and certify such oath and award . 4 L. C. Rep., p. 189, Roy vs. The Champlain and St. Lawrence Railway Go. S. C; Montreal ; Day, Smith, Vanfelson, J. Held, In Appeal, 1. That in Lower Canada notaries have the power to receive the report of arbitrators, and to give certified copy of the swearing in of the arbitrators annexed thereto, and that such power is specially recognized as belong- ing to them by 2nd Will. 4, c. 58, and 13th and 14th Vict., o. 154. 318 RAILWAY COMPANT. 2. That the assessment of costs by arbitrators named under the forcfi;oing statutes, docs not vitiate their report. 5 L. C. Rep., p. 219, Tnmblai/, App., The Ch'implain and St, Lawrence Railway Co., llesp. In Appeal : Lat'outaine. C. J. Duval, Caron, Meredith, J. Cattle— Fencinq. Held, That where, by the eharter of a railway company, they are not bound to erect barriers at those points where the line crosses a public r«ad, they are not answerable for injury done to cattle straying on the line from the public road, but that parties allowing their cattle so to struy are answerable to the company for damage done to cars thrown off the tr cic by collision with such cattle. 2 L. C. llep., p. 337, liockeleau vs. St, Lawrence and Atlantic Railway (Jo. C. 0. Montreal ; Bruneau, J. Damages. Held. That an action for damages from the construction of a railway over plaintiff's property, must be directed against the railway company, and not against the contractors of the works, unless, by their misconduct or default they have rendered themselves personally liable. 4 L. 0. Ilcp., p. 4U5, Jackson et al., App., Pacquit, llesp. In Appeal: Lafontaine, C. J., Panel, Aylwin, J. Held, 1. That the prescription under the 8th Vict., c. 25, sect. 49, does not extend to actions for personal injuries. 2. That the plamtiff must show how far his power of earning his livelihood is impaired, in order to obtain damages in faturo. 1 Jurist, p. G, Mushall vs. Grand Trunk Railway Co. S. C. Montreal ; Day, Smith, Badgley, J. Damages— Death. Held, That in an action of damages from a railway accident, which resulted in the death of the huabuid and father of the plaintiffs, and the destruction of the horse and waggon by which he was drawn, that without some proof of the value of the life of the deceased, no damages could be recovered beyond the value of the horse and waggon, and a new trial ordered, because, by the ver- dict, greater damages were allowed. 1 Jurist, p. 280, Ravary vs. TUe Grand Trunk Co- 8 C. Montreal; Day, Mqndelet, J.; Smith, J., dissenting. Held, in Appeal, That without sp cific proof of the pecuniary value of the life of the deceased, damages may be assessed by a jury, and be recovered beyond the value of the horse and waggon as a solatium to the widow and next of kin. Judgment reversed. Lafontaine, C. J., Aylwin, Bruneau, J. ; Duval, Badgley, J., dissenting. Limitation of Actions. Held, That the provisions of th< 8th and 9th Vict., c. 25, sect. 49, and 14th and 15th Vict., c. 51, sect. 20, as to the institution of actions against railway companies and others, within six months, do not apply to actions of damages arising from neglect and carelessness of the company's servants in the ordinary RAILWAY COMPANT. 319 management of the railroad. 5 L. C. Rep., p. 339, Marshall vs. Grand Trunk Company. S. C. Wontreal ; Day, 8iiiith, Vunfclsou, J. Held, 1. As above under the Itilh Vict., c. 4G, sect. 19, as to a like limita- tion of actions. 2. That the breaking of a bolt, whereby the rear wheels of a railway carriage „ero separated frwn the carriage, which was thrown off the track, is sufficient proof of negligence and of the insufficiency of the carriage for conveying passen- I'crs; the train having, at the time, just left a station, and proceeding at the rate of from four to five miles an hour, there being no obstruction on the track, and nothing out of the usual course of things, notwithstanding evidence by the delend- dants' serviUits that the carriage had been recently examined, and that no indica- dou presented itself of any dei'ect either in the bolt or in the carriage. G L. C. Rep., p. 172, Germain vs. Moncrtal and N. Y. Railroad Co. S. C. Montreal; Day, i5mith, Mondelet, J. Same case, see 1 Jurist, "p. 7. Hold, That the prescription of six months under the 8th Vict., c. 25, sect. 19, aud 14th and 15th Vict., c. 51, sect. 25, applies to claims in damages cauisod by the negligence of the servants of the comp any in setting fire to the rubbish col- lected on the line of railroad, being the final act of completing the railway. 1 Jurist, p. 179, Boucher oille vs. The Grand Trunk Co. S. C. Montreal; Day, Mondelet, Chabot, J. Held, In an action by a tutrix for damages in consequence of the death of the father through the negligence of tlie defendants, that the demand is subject to the prescription of one year. 2 Jurist, p. 97, Fitiatrault vs. The Grand Trunk Co. S. C. Montreal; Mondelet, J. Mandamus — Duty op Secretary. Held, 1. That a copy of a writ of Mandamus, under the 12th Vict., c. 41, must be served upon the defendants, also a copy of the declaration or requete Ixbellie. 2. That under the 9th Vict., c. 82, it is the duty of th^ clerk or secretary of the Montreal and Lachine Railroad to make an entry of the names and placesof residence of the owners of stock in the company, and that the Superior Court has jurisdiction to enforce such duty under the 12th Vict., c. 41. 6 L. C. Rep., p. 232. James Macdonald, Applicant, vs. The Montreal and Lachine Railway Co. S. C. Montreal ; Day, Smith, Mondelet, J. Oroanization op Company. Held, That a shareholder in a railway company may, in an action to enforce payment of his subscription, plead : 1. That the number of shares of stock which were required by the act of incor- poration to be subscribed before the act should be carried into effect, had not been subscribed. 2. That certain parties ft-audulently, and in order to make up the required number of shares, subscribed for shares on condition that no liability should attach to them. < 820 RAILWAY COMPANY. It 4 1 1- 1 i ; III Mi: ' ■'! w 1 ■77 ■ lit' • ' '■ ,1 I i ? ML M. 3. That at the time of the first meeting for election of directors the required number of shares was not subscribed, and that the fraudulent subscription took place after such first meetin[» ; and that the company hud no legal existencf . Demurrer to an exception setting up the foregoing counts or chefs dismissed 1 L. C. Rep., p. 366, Quebec and Richmond Riilway Co. vs. Dawson. C. Court, Duval, J. See the opinion of Lafontaine, C. J., as to the casaas reported. 6 L. G. Rep,. p. 350. See Shareholders' Liability. Passengers. .Held, That under the provisions of the Consolidated Statutes of Canada, cr, 66, the conductor of a railway is cnipowered to put off' the train a passenger whd refuses to pay his fare. 5 Jurist, p. 167, Regin.i vs. Faneiif. Q. B. Crown side, St. Francis ; Short, J. Rente Constitute. A railway company applied for ratification of title of a piece of land mortgaged for a rente constitute, and deposited the price. The creditor of the rente fylcd an opposition claiming the whole capital, although only a portion of the land had been taken possession of by the company. Held, On contestation by the debtor of the rente, and his creditors : That the creditor could only claim a proportion of the capital equal t-^ the value of the portion of the land alienated, and not the whole of such capital. 1 L. C. Rep., p. 125, Ex parte Lachine Railroad, and Opps. S. C. Montreal. Sequestre. Held, 1. That the provincial government had, under the Provincial Statutes. the first hypothecary lien and mortgage upon the road, property and works of the Grand Trunk Railway Company, and upon all its rolling stock and plant, and that first preference bondholders, under the 19th and 20th Vict., c. 111. have priority of claim therefor over the first lien of the Province. 2. That under the issues and proof in the cause the court will not declare that railway cannot legally be sold at sheriff's sale. 3. That the court has no power to appoint a sequestre, or receiver, as prayed for, and that the law of sequestration does not apply to the property of bodies politic incorporated by act of parliament, unless with the consent of such bodies. 4. That there was no sufficient evidence of any necessity for the appointment of a sequestre or that any advantage would result to the plaintiff, or to any parties interested in the railway, from such appointment. 5 Jurist, p. 315, Morrison vs. Grand Trunk Railway Co. S. C. Montreal ; Monk, J. Service upon. Held, That service of process on the Grand Trunk Railway Company at one of its stations is insufficient, and that such service ought to be made at their principal place of business. 6 L. C. Rep., p. 105, Legendre vs. Grand Trunk Co. S. C. Arthabaska ; D. Mondelet, J. the required cription took ^al existence, disniigscd I n. C. Court. 6 L. C. Rep,, RAILWAY COMPANY. Shares Allotted. 321 of Canada, c, passenger who Q. B. Crown and mortgaged the rente t'ylcd of the land had tors: That the he value of the I 1 L. C. Rep.. incial Statutes. and works of ;ock and plant, Vict., c. 111. lOt declare that as prayed for, f bodies politic bodies, le appointment to any parties 315, Morriton ompany at one made at their \ Grand Trunk Held, That an allottee of uliuros in a railway .scheme which has proved abor- livf, may recover back in an action for money had and received, the whole imuiiiit paiil by way of dcpiKsit. 2 llcv. do Jur., p. 35, WalstaOb vs. Hjiollis- uvudi: English ca.se ; Exchc(juer, 184li. ' ' SlIARElIOLUEU's LIABILITY. Held, That the action accorded to creditors against shareholders in railway imiip:niies, under the 14th and loth Vict., c. 51, sect. 19, is not aflected by the t'liiluie (if tlie directors of the company to make calls, in accordance with the I'Jth ^ectitiii of that act. 2 Jurist, p. 114, Cochburu vs. Slarncs. 8. C Montreal; Day, -Mondelet, Budgley, J. Hl'M, Nor by irregularities in the nomination or appointment of directors, or iii tliL- time of holding its first meeting. 2 Jurist, p. 274, Itijland vs. Ostcll, <. C. .Montreal ; Mondelet, J. Held, 1. Nor by tiic transfer of shares by defendant. The fact of the defen- liuiit being owner of the shares at the time plaintitt 's debt accrued, will enable plaintiff to recover. 2. That parol evidence, by the secretary of the company, to the effect that it appeiircd by the books of the company, that defendant's shares had been trans- ferred before the institution of plaintiff's action, is not sufficient to prove such iranst'er. 2 Jurist, p. 283, Cockhurn vs. Beaudry. S. C. Montreal; Badgley, J. Held, Nor by irregularity in the first election of directors, who were alleged to have been named before the requisite amount of stock had been subscribed. i Jurist, p. 285, Cockhurn vs. Tattle. S. C. 3Iontreal ; Smith, J. Transfer of Shares by Company. Under a clause in an agreement between a railway company and a contractor, the contractor was authorized to collect, for his own benefit, arrears due by certain stockholders for the price of their shares, to a certain specified amount. Held, That the stockholders could not, in such case, be sued by the contractor in his own name, and that the company was not liable to warrant or defend such contractor, against a plea by a shareholder, alleging facts to show that he was not indebted to the company. 7 L. C. Hep., p. 369, White vs. Daly, and Daly vs. hdnstry Village Railway Co. S. C. Montreal ; Day, Mondelet, Chabot, J. Held, 1. That a shareholder in a railway company who has transferred his oihares as collateral security, cannot bring an action of damages against the com- pany for refusing to register such transfer during several months, thereby caus- ing him great pecuniary loss.- 2. That the allegations that the transferees had offered to surrender such transfers to the company, and had demanded that the company should transfer the shures (not " enter " the transfer) in their books, were insufficient. 2 Jurist, 1' 291, Webster vs. The Grand Trunk Co. S. C. Montreal ; Day, J. Held, in Appeal, 1. That a shareholder who has transferred his shares as collateral security, can maintain an action in damages against the company for refusing during several montha to register such transfer. '^ ' i I : 1 U i! i h '1 [^ ill 822 RATIFICATION OP TITLE. It ^ 2. That the allcf^ations that the transferees had offered to surrender such transfer to the company and liad demanded of the company to transfer tlic .shares in their books was sufficient to meet the requirements of the computiy'H clmrter Judgment below reversed. 3 Jurist, p. 148. In Appeal : Lafuntaino C. J Aylwin, Duval, J. ; Mondelet, J., dissenting. m'lm ,- H ■•,« I s-i:|i RATIFICATION OF TITLE. Held, That where a petitioner for ratification of title bound himself ly his deed, to pay a sum of money to a hiillcnr de/oiids who fyled an opposition, thiit the opposition would be admitted, but without costs. 10 L. C. Rep., p. 451, £,; parte Lenoir vs. Lamothe et al, 0pp. S. C. Montreal; Badgley, J. Same case, 2 Jurist, p. 303. Held, That a petitioner for ratification of title is bound to dcj^osit the price of his acquisition, if required to do so by opposants. 1 Rev. de Jur., p. 42, Ex parte CuHtin and Dion et al, 0pp. K. B. Q. 1840. Can a petitioner for ratification of title desist, in any stage, from his proceed- ings, on paying all costs incurred ? 1 Rev. de Jur., p. 224, Chabot, Petr. and divers Opps. K. B. Q. 1846. Held, That proceedings for ratification of title, under the 9th Geo. 4, c. 20, are not in every respect analogous to those followed in France under the edict of 1771. That the statute only has in view the discovering of the hypothtqimmi to preserve them on the immovable, whilst the edict was intended to pur"e hypotheques, and was in that respect equal to a decret; that under our system creditors have not the absolute right of obtaining a deposit of the price under a contraintc par corps. 2 Rev. de Jur., p. 229, Douglas, App., Dupie, Resp. In Appeal, 1844. Held, On an opposition to a ratification of title, that the party opposant was bound to have mentioned in the acte upon which his claim was based, the sum of money for which the hypotheque was created. Opposition dismissed. Sx parte Cazelais and Ramsay, 0pp. S. C. Montreal ; Cond. Rep., p. 34. In this case Grace Russell sold a piece of land to the Harbor Comissioners of Montreal in 1853, who applied for ratification of title. A creditor of Hector Russell & Co. fyled an opposition, setting up that the land had formerly belonged to Hector Russell who sold it frauduently, and by collusion to Grace Russell his sister, when notoriously insolvent and a bankrupt, that opposant's debt was unpaid and a fradulent preference given to Grace Russell. Held, On motion of Grace Russell, an intervenent in the cause, that such an opposition will be dismissed, the subject matter not being such as could be urged against a ratification of title, and that the validity of the titles, or the fraud could not be decided upon in this way. Ex parte The Harbour Commissioners of Montreal for Ratification, and Foster, 0pp., and Russell intervening. S. C. Montreal, 1854 ; Cond. Rep., p, 84. Ratification, Opposition to. ^ee Garantie Ratification. ■See Decret. Opposition to. See Garantie. REGISTRATION. REBELLION LOSSES. See Cession, Indemnity. 828 REBELLION EN JUSTICB. Sec CONTRAINTE. » 1 RECORD. See Evidence, Record. RECORDER OF MONTREAL— JURISDICTION. See Certiorari, Jurisdiction. RECORS. See Execution, Formalities of. RECUSATION. Held, 1. That in Canada, the judge recused may pronounce upon the validity of the recusation. 2. That relationship of the judge with a stockholder in an incorporated com- pany does not render him incompetent. 3 Rev. de Jur., p. 85, Assurance Com- pauij of Canada vs. Freeman. K. B. Q. 1847. Held, That if a judge declare his incompete loy by reason of kindred, &c., the parties must fyle their recusation within eight days, and are dechues de plein droit if they do not. Neilson vs. Union Company. K. B. Q. 1817. Held, 1. That the recusation contemplated by the ordinance of 1667, tit. 24, art. 23, can only be made in writing. 2. That the hatred (inimitie capitate) mentioned in the 8th article of the same title to give rise to a recusation, must be hatred on the part of the judge, and mnst be so allegec' and proved, failing which, the reasons of recusation will be held impertinent. 3. That the causes of such hatred must be specifically declared. 4. That the hatred must be a decided hatred, known, manifest, the result of the killing of some near relative of the person urging such recusation, or the result of difiFerences, personal encounters, or matters of large interest between such person and the judge, which could create a feeling of revenge tending to the use of an opportunity of destroying the life, or the honor, or the personal advantages of one's enemy. 8 L. C. Rep., p. 246, Renaud, App., Gugy^ Resp. la Appeal ; Lafontaine, C. J., Aylwin, Duval, Caron, J. I;! '*'! i ''l 1 t ) M ii , v. 1 ',;( f! i ■> 324 REOISTRATION. RE0I8T11ATI0N. AOTK I)K TuTKt.IiE. Hold, On a df/cnsr, en droit to m\ action by tlio tutor to a minor, that undor tlio 24th section of the registry orcliniinco, the dccliinition must contain an all,.. (j^iition of tho cnrogistration of tho (tcte de tutvlle. 2 L. C. Hep., p. ',], Mmrnii Vrt. Gorniiiii. S. (J. Montreal; Vanfelson, Mondehit^, J. HcM, That an heir daimin}^ his share of a community in ri<;ht of his iiintlicr, will lose his rank of mortj^age on the real estate of his father, appointed his tutur utdess the mai'riaj;e contract, acte di: tatctle, or deed of partition, wore rofjisturiid, I L. C. llcp., p. H7, Gintrd va. Bla!», and Opps. rf. C. Quebec ; Bowen, C. J,, Duval, Meredith, J. Held, That the 4th Vict., c. 30, scot. 24, as to rc<;istration of the artr ik futclle before the maintaininj;; of an action, does not apply to an opposition u fin de conserver filed by u tutor. 5 Jurist, p. 154, Morhtud vs. JJorion, imd'tSnuvi «f< «»., Opps. S.C.Montreal; Badj^ley, J. After Seizure. Held, That tho registration of a title of debt after the seizure of a land, con- fers no lii/itofheqiic as against other creditors not registered. 1 Jurist, j), 2()6, Gale vs. Griffin. Queen's Bench, Montreal ; Holland, C. J., Day, Smith, J. 1848. Arrears ov Interest, Held, That the registration of an obligation dated before tho registry ordi- nance, 4th Vifi., c. 30, without a memorial of a claim for any specitic sum tor arrears of interest is sufficient to preserve the rights of tho creditor, for the whole amount of interest due. 3 Rev. de Jur., p. 340, McLauyhlin et al., App., Bradbury et al., Rosp. In Appeal, 1848. Held, That registration at full length, of an obligation executed previous to the registry ordinance (4th Vict., c. 30) will preserve a mortgage for arrears of interest, as well subsequent to, as up to the date of registration. 1 L. C. llcp., p. 284, Regina vs. Fetitderc, and 0pp. S. C. Quebec; Duval, 3Ieredith, J. Held, That registration of a mortgage bearing a date subsequent to the com- ing into force of tho i-egistry ordinance, is oifectual for interest for two years and the current year against a subsequent hypothequo duly registered, but not as to costs. 6 L. C. Rep., p. 48, Morin vs. Daly, and Deruusselk, 0pp. S. C. Que- bec ; Bowen, C. J., Meredith, Morin, J. See Projet de Collocation. Held, 1. That the law which existed previous to the passing of the 4th Vict, c. 30, established a prescription of 30 years, and not merely a prescription of five years against arrears of interest upon the price of an immovable sold. 2. That in the distribution of moneys, levied by the sale of real estate, the vendor, bailleur d''fonds, under a deed passed before the 4th Vict., c. 30, came into operation, is entitled to rank for all arrears of interest due with the princi- pal, although no memorial of such interest was ever registered. 3. That the 7th Vict., c. 22, cannot be construed as having a retroactive effect. nEOISTRATION. 82.1 ■ind tlmt c()n.HOf(urntly it docH not, apply to constitntoil rcntH crciitcil bcforo if iimii' into force. 10 h. {). Unp,, p. :57!l, Itrmni vh, Clarhe, and MiintLnmUrt li, Opp. H. C. Quebec; Tasclicreau, J. BaIM.GI'K I)K Fonds. (t (JIKli llcld, 1. That a Itnllli^nr dv foiuh is entitled to rank for all arrears of interest due with the principal, althouj^h no memorial haw l)ecn re^ristertul. 2. That the enactments of the 7th Vict., c. 22, (h> not apply to doed.s anterior tntlu! pa.ssin;^ of that act. I li. C. Rep., p. 489, Lulhdm vs. Kcnujun, and Opps. y. C. Montreal ; Day, Smith, Vanfelscm, J. Held, That a hnillcur . S. C. Quebec; Meredith, Morin, Badgley, J. Notice — Bad Faitb. Held, That knowledge, by a subsequent creditor, of the existence of a previous debt not registered, is not sufficient to put him in bad faith or deprive him of li'hts acquired by his registration, unless he be guilty of fraud or collusion. 3 L. C. Rep., p. 136, Boss vs. Dali/, and Killaly, 0pp. S. C. Quebec ; Bowcn, t!. J., Duval, Meredith, J. Held, That the non-registration of a deed of conveyance under the provincial statutes 10th and 11th Vict., c. 8, and 1st Will. 4., c. 3., and 2nd Will. 4., c. 7, does not operate as an absolute nullity, if the subsequent purchaser be not 11 honO, fide purchaser for a valuable consideration. 2 Rev. de Jur., p. 194. Smith vs. Terrill, and Phillips, 0pp. K. B. St. Francis ; Bowen, C. J., Valliiires, Fletcher, J., 1835. Notice to Claim Proceeds op Sale. The appellants acquired real property, on which was built the Baptist college, Montreal, from Gerard, by deed of 18th March, 1842 ; part of the price remained a comtitut and £2000 also remained on interest during the lifetime of one For- syth, and M. C. Gerard, his wife, the principal payable after their death, to certain persons appointed to receive the same. Afterwards, on the 25th July, 1845, by deed not registered, the appellants, reciting that they had purchased solely in trust for " The Canada Baptist Missionary Society," until it should be incorpoaated (as it was by 8th Vict., c. 102,) assigned the property to the society in consideration of 10s., and that they should be exonerated and discharged from all claims, troubles, and demands whatsoever by Gerard, under the deed, but without a special garantie stipulated, and without stating the precise sums of money due to Gerard. The society afterwards specially hypothecated the property to Hoby & Salter, aud to Forsyth by deeds bearing date 28th Octr., 1845, and 18th Dec, 1848, duly registered, and the property being sold by the sheriflF, Gerard, although notified, forcbore to make any claim on the proceeds, under his deed of sale, and the respondent, cessionnaire, of Hoby, Salter, and Forsyth, was collocated. The appellants resisted this collocation unless security were given to refund if the balance of the price was afterwards claimed from them. Held, That the appellants were entitled to such security, notwithstanding the 10th and 28th sections of the registry ordinance, and notwithstanding that the deed of the 28th July, 1845, contained no special hi/potheque in their favor. 4 L. C. Rep., p. 277, Try et al. App., vs. The Corporation of the Bishop of Montreal, .Resp. In Appeal ; RoUand, Aylwin, Meredith, J. ; Panet, J., dis- sentmg. 1854. Registrar's Certificate. Held, That where the registrar's certificate discloses mortgages existing on the land referred to in a petition for confirmation of title, a motion by an inter- vening party praying to be allowed to fyle discharges, and that the mortgages be 382 REGISTRATION. |w ii! If held and considered satisfied, and discharged, pour toutesfns requises, cannot lie granted. 12 L. C Kep., p. 431, Ex parte Rdbison, and Poirier, Inter. S. C, Montreal ; Bcrthelot, J. See Action Petitory. Gibson vs. Wcare. 12 L. C. Rep., p. 98. Rkgistrar's Fees. See Riieriff. Non-Heqistration, Effect of. See Sale op Immovables, Resiliation. Registrar's Copy. Held, That a copy, certified by a registrar, of an authentic acte registered at full length does not make proof. 2 llev. de Jur., p. 58, Dessien dit St. Pkra vs. Ross. Q. B. Quebec, 1844. Sec Evidence, Registrar's Copy. Registrar's Liability. Held, 1 . That a registrar is responsible for damage or loss caused by his neglect to register a mortgage, or by a certificate given by hiui, wherein an ouiis- sion occurs, from the etfect of which a purchaser in good faith is troubled in his possession . 2. That the action in such ease must be one en garantie, the registrar beiiii; the garant of the party to whom he has directly caused damage. 10 L. C. Hop.. p. 2G9, Montizamhert, App., Tulliot dit Gcronis, llesp. Aylwin, Mondelot, Badglcy, J. ; Lafontaine, C. J., Duval, J., dissenting as to the point seconillj ruled. Rights of Married Women. Held, That a married woman is entitled to claim on the proceeds of an im- movable sold on the representatives of her late husband, such property having been acquired by donation to her from her father and mother, during the com- munity, notwithstanding a clause of ameublisscment in her contract of marriage, provided she has, by the contract, a right to renounce the community and take back what she brought to it, notwithstanding that the contract, executed before the coming into force of the 4th Vict., c. 80, was never registered. 1 L. C. Rep,, p. 47, Labreqtie vs. Boucher, and Fleury, 0pp. S. C. Quebec ; Bowen, C. J.. Duval, Meredith, J. Held, That a marriage contract (of 24th May, 1841,) assigning a life rent to a wife, must be registered to preserve a mortgage according to the date of such contract against a creditor prior in registration. 2 L. C. Rep., p. 83, Panet vs. Larue, and Opps. S. C. Quebec ; Duval, Meredith, J. So as to marriage contract of 11th Nov., 1836, Garneau vs. Fortin, and 0pp. S. C. Quebec ; Bowen, C. J., Meredith, J. Held, That a purchaser in good faith for valuable consideration, under a deed of sale prior to the registry ordinance, and registered previous to the 1st Nov., 1844, is not liable hypothecarily for a do iiaire prefix under a marriage contract before notaries, of l8l7, not registered until 1853, notwithstanding the death of the husband took place in Octr., 1852. 6 L. C. Rep., p. 100, Forbes vs. Leg- ault. S. C. Montreal ; Day, Smith, Mondelet, J. REQISTRATION. 383 Held, That it is not necessary that a marriage contract containing the stipu- lation of customary dower, should bo registered to confer upon the person claim- ing such dower, a preference over posterior creditors whose claims arc regis- tered. 10 L. C. Rep., p. 301, Syma et al. vs. Evans, and divers, 0pp. S. C. Montreal ; Monk, J. Held, That it is not necessary to register a contract of marriage executed pre- vious to the registry ordinance to preserve rights of ownership and not hypothe- (i;iry rights, and that children, as representing their mother, may claim, by right Dt'couimnuity, the value of one half of an immovable jfjro^>re « I n 888 SALE OF GOODS. or without notice to tlio dofondant to produce ihohniight note. 6 Jurist, p. 200. Gonld it III. VH. liinmore et al. S. C. Montreal; Smith, J. Held, 1. That in an action hy the vendor of Hour aold and delivered, for the price, accompanied by u naimie councrvatDlre for Huch goods, tlie plaintifl' Ims a right to demand by the euncluMionM of his declaration, that the defendaiitH be condemned to pay the price of sale, that the flour seized be declared suliject to and liable for the privilege in favor of the plaintiff, ns the vendor thereof, for tiio price of sale, and bo sold in due course of law and the proceeds of the sale paid to the plaintiff, in sutisfiiotiou either in whole or in part ^us the ease might be), of \\\i* claim as vendor. 2. That u bargain and sale of goods in the month of January for delivery, in all the month of May following, is not a gambling transaction. 3. That whore goods so seized have been delivered to the plaintiff durin;,' the pendency of the suit, on his giving security that they will bo forthconiiiif,' to abide the future order of the court or the value thereof accounted for by the plaintiff, such value will be held to be the value of the goods at the time of the delivery to the plaintiff, from which date the plaintiff shall be accountable there- for with interest. 6 Jurist, p. 207, Baldwin vs. Binmure ct id. S. C. Mon- treal ; Monk, J. Held, That the plaintiff has a right to obtain delivery of flour seized by Lini as vendor under a writ of sdisie conservatoire, on giving security that the flour will be forthcoming to abide the future order of the court, or the value tlieroof duly accounted for by plaintiff. G Jurist, p. 299, Baldwin et al. vs. Binmon et al. S. C. Montreal ; Berthelot, J. By Sample. Held, That where there is a sale by sample and the goods delivered do not agree with the sample, the vendee must make known the defect within a reason- able delay, and cannot rescind the sale and return the goods after a delay of six months. 4 Jurist, p. 288, Joseph \a. Morrow et al. S. C. Montreal; Smith, J, Commission. Held, That an agreement that a certain commission should be a del credere commission may be inferred from the fact that the rate charged has been shorn to be recovered by merchants examined in the case, as a del credere commission. 6 Jurist, p. 156, Rankin, App., Foley, Resp. In Appeal : Lafontaiue, C. J., Aylwin, Duval, Meredith, Mondelet, J. Delivery — Risk — Time op. If property, after a sale perfected, is burnt by accident, before delivery, the loss falls on the purchaser. Stuart's Rep., p. 101, McDongall vs. Fraser. K. B. Q. 1816. Advances in goods under a written agreement, are made by A, a merchant in Upper Canada, to enable B, a contractor for lumber, to cut and convoy to the Quebec market a quantity of timber upon the conditions that, as soon as dressed, it should be considered as belonging and delivered to A, and conveyed to market SALE OP OOODS. 889 at the risk and cx|)cnso of B. That A mIiouUI Imvo tlu; salo of tlio timber, pny (lin- Imrst'iiii'MtH i\ii(liiccouiit to H for any baliini'i' n'malninir after a ilt'diiction of his adviiiK'cs and including tuii {)cr cent, on tint lattur, with u coinuiiHKiun of '1^ \hy cent on thu mdo. 11.1(1, That after delivery to A, before it reachoH the mnrkot, without fraud or ciilliision with H, the timber could not be attached at the suitof U'm creditorH in payment of his debts; but thu balance, if any, after a Hale by A, could uloiie bf arrested in his hands under jtrocess of the court. Stuart's Hep., |». 37)7. Vdit/cniiijhiirf, App., Mnithml it ((/., U<'sp. In Appeal, 1H2U. Held, Upon the sale of piods by admensuratiou, (a rait of timber) which may hapiieii to be destroyed before measurement, the loss is cast upon the vendor ; stipulation of admeasurement and delivery at a particular time and place renders the Hale conditional and incomplete, until the occurence of these events, and in the uieantimo the risk, pi-rividiim rei vnudltiv, must be borne by the vendor 1 Rev. de Jur., p. 170. Leamesurlcr ct iiL, App., Jjui/nii et 'L, llesp. In Appi d, 1845. The defendant contracted to deliver and the plaintiff to receive 14,00'.) foct of birch timber, merchantable, and uvera{;ii)g a certain size, to bo j/i!ed o > defend- ants wharves during the winters of 184-4-5, and to be delivered a^ v ;uircd by the plaintiff during the ensuing season of navigation. A (juantity of timb> ■ piled upon defendant's wharves was burned during the winter, before it :t' beca measured as between the plaintiff and defendant. In an action of damages by the buyer against the seller for the recovery back of moneys pai u. idvancc. Held, That there had been no delivery : 1. Because there had been no measurement. 2. Because tlio timber had not been ascertained to bo of the reijuisite average size. 3. Nor of the required quality. 2 L. C. Rep., p. 257, Levy vs. Lnwmhs- S. C. Quebec ; Bowen, (J J., Meredith, J. Held, In Appeal: Stuart, 0. J., Holland, Panet, J., That the timber above mentioned having been destroyed by vis major, without fault of the vendor, and which could not be replaced, that the action for restitution of moneys paid in advance would lie, but not for danmges for non-execution of the contract, and the judgment of the S. C. Quebec, contirmed as to tho restitution, but reversed as to the damages. 2 L. C. Rep., p. 457, Russell et al '^- - ; renunt I'instance for) Lowndes App., Levy, Resp. In an action by a vendor of timber against the assignees of insolvent vendees in which the timber was seized by right of stoppage '.n transitu as if there had been no delivery : Held, That the rule applicable to cases of constructive delivery and possession was not applicable, there being an actual delivery to and possession by the ven- dees, although the timber had not oeen culled or counted. Action dismissed. 1 L. C. Rep., p. 21, i^ewy vs. Tunibull et al. S. C. Quebec; Bowen, Duval, Meredith, J. Held, 1. That although an agreement only provides for the delivery of a raft to the advancers in their booms in the River St. Charles, at Quebec, an actual delivery 340 SALE OP GOODS. to them before the arrival of the raft in consequence of the lacJics of the contrac- tor establishes possession. 2. That a seizure in the autumn of the raft by raftsmen for their wages, they being discharged in the spring, cannot be maintained after such actual dolivcrv. 12 L. C. Rep., p. 149, Ruelva. Ilcnri/, andtAnder/ion et ah, Inter. C. C. Que- bec ; Taschcreau, J. Held, That the word " summer " used in a contract to indicate the period within which timber should be delivered in Quebec, means, under the circum- stances disclosed in this case, the season of navigation, which begins in the com- nieneement of May and terminates about the end of November, and is not limited to the three summer months of the calendar. Judgment below reversed. 7 L. C. Rep., p. 230, Tkibaudiire et al., App., vs. Lee, Res;/. In Appeal : Lafon- taine, C. J., Aylwin, Duval, Caron, J. Held, That if a purchaser receives goods which are not in conformity to his order, by directing them to be sold for the benefit of the shippers, he makes them his own, and renders himself liable for their intrinsic value. Anderson vs. lioss, K. B. Q. 1820. Held, That if goods are sold without term of payment, and a bill is taken payable at a future day which is dishonoured, the purchaser may be immediately sued in his original contract without regard to the time the bill has to run. Pratmi vs. Johnston. K. B. Q. 1813. See Action Revbndication. In Transitu. iili' v# if -%■ ^1 i. Held, That where the evidence shows that a delivery of goods has been know- ingly made and perfected, there can be no stoppage in transitu. Horner vs. Johnston. K. B. Q. 1812. « Lien. Held, 1. That the vendor of a horse with term of payment has a privilejre upon the proceeds of the sale en justice of the animal, in the hands of the pur- chaser, bi a third party. 2. That no novation was created by the vendor's having at the time of the sale taken an obligation with hypothcijiic for the price of the horse. 12 L. C. Rep., p. 142, Douglas vs. Parent, and Larue, 0pp. C. C. Quebec ; Taachereuu, J, Lost Goods. Held, That the purchaser of a lost horse, bona fide in the usual course of trade, in a hotel yard in Montreal where horse dealers are in the habit of congre- gating and selling daily a large number of horses, acquires no right of property therein as against the owner who lost it; and although the purchaser is a resident of the United States, and in possession there of the horse claimed, he may never- theless be sued in Montreal, on being personally served with process there, and will be condemned to pay such value. 6 Jurist, p. 294, Hughes vs. Reid. C. C. Montreal ; Smith, J. See Action Revendication. SALE OF GOODS, &41 es of the contrac- Machine. Ilckl, 1. That in this case, the privilege of an unpaid vendor of a paper machine sokl, subsisted while it remained unchanged in form and in the purcha- ecr's possession, until payment of the price. 2. That it maintained its mobiliary character whilst it was susceptible of removal without injury to itself, or to ihe mill in which it was put up. 3. That its more placement in the mill did not make it an immeuhle par des- tination or change its original form or character. 4. That the purchaser held it precariously and only as tenant until payment of the price. 7 L. C. Rep., p. 374, Union Building Hociettj vs. Russell, and Godilird et id., 0pp. S, C. Quebec ; Bowen, C. J.,. Moriu, ]}adgley, J. Order for Goods. Held, That an action for goods sold and delivered cannot be maintained if a note, payable to order, has been taken for their amount, and is not produced. Casgraiu vs. Fai/. K. B. Q. 1814. Performance of Contract. In an action upon a contract for the sale and delivery of five tons of good incrchantablc hops, the plaintiifs averred that they were ready and willing, and had offered, to deliver five tons of hops; it appeared that the plaintiffs sent to the defendant a quantity of hops greatly exceeding the weight of five tons, and that the defenda- 1 refused to accept them upon the ground that they were not good mercliantuble hops. Nothing had been done by the plaintiffs to distinguish the quantity intended to be tendered from the rest of the hops. The court below dismissed the action, treating it as brought to enforce the performance of the contract, no offer being made in the declaration to deliver the hops. The Court of Appeals reversed this judgment, condemning the defendant to pay the contract price of the hops within fifteen days from the service of the judgment upon him. Hold, In the Privy Council, 1. That licither judgment could be sustained; that of the Inferior Court, because the action was merely in damages for breach of the contract, in refusing to accept the hops, and not an action brought for tlie performance of the contract ; and the judgment of the Court of Appeals because : 1. The judgment was not adapted to the form of action chosen by the plain- tiffs, 2. Because, by tlic contract, delivery was to precede payment; by the judg- ment, piyinent was to bo made not merely before, but without delivery. 3. That if in a sale, by weight or measure, some further acts remain to be done to regulate the identity and individuality of the thing to be delivered, it is not in a state fit for immediate delivery, and that therefore to constitute a valid offer of delivery it was necessary to separate and distinguish the hops sold from tlie larger (juantity in the possession of the plaintiffs. 12 L. C. llcp., p. IGl, w iiiiti! F t 1 I ; . i : 1 - ! ; ' i , ; 1 342 SALE OP GOODS. Boswcll, App. Kilhoni, ef ah, Resp. In the Privy Council : Lord Chelmsford cf al See same case, C Jurist, p. 108. Tender Back. Held, That no damages can be recovered by a vendee, by reason of the bad quality of the thing purchased, if he neglects to tender it back so soon as he has discovered the defect. 1 Jurist, p. 87, Clement vs. Page et al. S. C. Montreal' Smith, Mondelet, Chabot, J. Held, That a vice rcilhibttoirc must be of a character not to be at once per- ceptible, and that it was for the jury to say whether the purchaser had examined the oil sold within a rea.sonable time (seven days). Judgment that the defendant take back the oil and pay back the price. 1 Rev. dc Jur., p. 92, Footner vs. Htiith. Q. B. Montreal ; Day, J., and special jury, 1845. Held, That as soon as the purchaser ascertains that the goods delivered do not answer the order given, he must return them to the vendor, or give hiui notice to take them back, else he cannot afterwards rest his defence upon the ground that the goods were quite unfit for the purpose for which he intended to use them. 3 Rev. de Jur., p. 193, Wurtele et al. vs. Boswell Q. B. Q. 1847. Tradition. Held, That if there be no evidence of tradition upon a contract for the sale of goods, and if there be no tradition, and the articles intended to be transferred are seized in the possession of the vendor, the purchaser cannot maintain an opposition h fin de distrairc. Hunt vs. Perranlt et al. K. B. Q. 1821. Held, 1. That the sale of movables (furniture) by notarial deed which declared that tridi'tion of the whole took place by delivery of a chair and a table, docs not vest the property in the vendee, and that a creditor of the vendor, posterior to the sale, may seize and sell the same eflFects upon the vendee. 2. That such sale is null on account of fraud. 3 L. C. Rep., p. 440, Bonn- cilia, App., Seed, Resp. In Appeal : Panct, Aylwin, J. ; Holland, J., dissent- ing as to the nullity of the sale. Where A bought of B goods which were weighed, measured and paid for, and it was agreed that the goods should remain in B's store till A should send a carter for them, and B's creditors seized them on execution before A sent for them : Held, That the creditors had rightly seized them, as there had not been a de- livery to A, so a.s to pa.ss the property to him. 9 L. C. Rep., p. 193, Ni:sl>it, App., Jiiin/c of Montreal, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Mondelet, J. Held, 1. That where goods are bought at a judicial sale, no delivery is neces- sary to pass the property. 2. That f'irite reconduction as to movables arises only where the lessor is a dealer and makes a business of letting movables. 3. That parties remaining in possession after the expiry of lease, will be deemed to hold fia owners. Bell vs. liigney et uL, and Milne, 0pp. S. C. Montreal; Smith, J. Chelmsford ct al SALE OF IMMOVABLES. 843 Held, That to entitle oppoaants, who claimed as proprietors by purchase, to withdraw from sale and execution, machinery in a woollen factory, seized as belonging to defendants, an actual deplacemcnt and delivery must be proved. 4 Jurist, p. 301, Ash et al. vs. Willctt, and Seymour et ah, 0pp. S. C. Montreal ; Berthdot, J. Quality op. Held, That the bad quality of goods purchased and delivered, is not a defence to an action for the price, if the defendant, when they were purchased, had it in his power to examine them. Manjuis vs. Poulin. K. B. Q. 1813. Warranty. Where A, by a written memorandum, sold B a cargo of coals, and verbally warranted them to be of the best ([uality, and delivered and was paid for them, and four days afterwards sold another cargo by a similar written memorandum, and verbally warranted them to be of the best quality and the same as the for- mer cargo, but delivered coal of an inferior quality : Held, 1. In an action for the price of the coal, that the second memorandum, being drawn in the same terms as the first, was not an implied warranty that the coals would be of the same quality as those first delivered. 2. That parol testimony could not be admitted to prove a verbal warranty, as it would tend to control the terms of the written memorandum, and that B must pay the full contract price. 9 L. C. Rep., p. 40G, Fry, App., vs. The Jiichelieu Company. In Appeal : Aylwin, Duval, 3Ieredith, Mondclet, J. Wood by Indians. Held, 1. That Indians have not, by law, any right or title by virtue whereof they can sell wood growing upon their lands, set apart for the use of their tribe. 2. That such wood is held in trust by the Commissioner of Indian Lands for Lower Canada. 3 Jurist, p. 313, The Commisuimcr of Indian Lauds for L. C. vs. l' 4 '^ II 846 BALK OP IMMOVABLES. payment of interest, which interest becomes payable after the lapse of the tour months' notice, which interest the purchaser is bound to pay up to the day when the moneys wore paid into court, although the contestations had not then been disposed of. 3. That tht omission of some of the formalities required by the 9th Geo, 4,c. 20, to be permitted to overbid, does not entail the nullity of the proceediiiL,'!,. 5 L. C. Hep., p. 31)0, Rmton vs. Bhinchnrd. S. C. Quebec ; Morin, Badgley, J. Vendor's Kiouts — Resiliation, In an action by the vendor of a lot of land against the vendee and a third party to whom the land had aftor>vards been sold, praying for the r;,.,iliation of botli deeds of sale by reason of the non-payment of the balance of the purchase money duo under the first deed : Held, That the action could not be maintained, inasmuch as there was no offer by the plaintiff to reimburse to the second purchaser certain sums paid by liim on account of a debt indicated in both deeds as due to the seignior, and iilso a certain sum paid on account of a ji^int and several obligation of the vendeo and the plaintiff, for the payment of which the land in question was mortga;:ed by the first purchaser. 12 L. C. Rep., p. 397, Surprenant vs. Surprcnant vtal. S. C. Montreal ; Smith, J. Held, 1. That in the case submitted, no sufficient cause was shown for the resiliation of a deed of sale. 2. That the exclusion of the testimony of a witness, on the ground that he violated the order of the court, made at the commencement of the iiiqnete, ordering the witness out of court during the cuqitvte, is illegal. G Jurist, p, 285. Irvin, App., Miilouci/, Resp. In Appeal ; Lafoutaiuc, C. J., Aylwin, Duval, 3Ieredith, Mondelet, J. Held, That The action en resohttinn de rente by a vendor of real estate for non-payment of the price is not affected by the non-registration of the deed, or by the vendor having been an oppo.sant to an application for ratification of title on a sale made by his immediate vendee. 12 L. C. Rep., y. 79, David vs. Gimrdet al. S. C. Montreal; lierthelot, J. Held, That in an action to resilia^e a verbal promise of sale oi an iiiiiufAable admitted by defendant, but on terms different (as to price) from tho.se set up by plaintiff", the latter, who has adduced no evidence, has a right to judgment con- formably to the conditions and the admission in defendant's articulation of facts. Judgment below dismissing action (Bruneau, J.,) reveraed. 12 L. C. Rep., p. 229, Lacr(u.c, App., Lambert dit Finon, Resp. In Appeal : Lafontauie, C. J., Aylwin, Duval, Meredith, J. , Mondelet, J., dissenting. Held, That a vendor who fyles an opposition to a petition for ratification of title docs not thereby lose his right to obtain a resiliation of the deed of sale for non-payment of the purchase money. 6 Jurist, p, 122, David vs. Girard tt ux. S. C. Montreal ; Berthelot, J. Judgment declaring null a deed of sale for want of ratification as agreed on. Prdvostd, No. G9. See Keuisteaxion, BaiUeur ile/onds. SCHOOLS. 847 yas shown for the Held, 1. That a promise of sale followed by possession is equivalent to an absolute sole, and an hypothecary claim created against the vendor subsequently to such promise of sale, does not aflPect the property so sold. 2 That whore such purchaser sues a tliird party to whom lio has re-sold a portion of the property, as well in his capacity of proj)rietnr as in liis capacity of attorney for his vendor, judgment for the price of the portion of land so re- sokl will be rendered in his favor, and his selling as such attorney cannot affect Ills right to recover as proprietor. 9 L. G. llep., p. 315, Uosudui, App., The IJrand Trunk Gompauy, Resp. In Appeal : Lafontaine, 0. J., Aylwin, Duval, Meredith, J. Held, That it is not necessary in an action for the price of an immovable sold, to prove by parol evidence the identity of the pro))erty, to sustain a plea of payment, provided the identity sufficiently apj)ears by the dcks of sale and receipts. 1 L. C. Rep , lOG, Muraia vs. liiclier. S. C. Montreal; Day, 8niith, J. ; Mondelet, J., dissenting. As to the uece&sity of tradition or seizin. See Action Pktitorv. Held, That the concession by a seignior of a lot of land at a fixed rate per arjient, cannot be extended beyond the precise (luaiitity mentioned, (3 arpents by 20,) notwithstanding the description thereof by metes and bounds, and is not to be considered as a concession of a corps ccrtnin. 3 L. C. Jlep., p. 458, Snnchc d III., App., Longprc, Resp. In Appeal : Stuart, C. J., Panet, Aylwin, J. ; Rolland, J., dissenting Prohibition from selling land given. Si'c Donation, Prohibition. Held, In an action for a portion of the price of real estate soldy'/voic et qnitfc, the plaintiflF will obtain judgment if there will remain in the hands of the pur- chaser a sufficient .mm, after payment of the part sued for, to indemnify the pur- chaser iigainst a hi/j)othique proved to exist on the real estate, -i Jurist, p. 310, Piiqiiet vs. Miclette, S. C. Montreal ; Badgley, J. Held, 1. In an action for a prix ile ventc of real estate the purchaser in pos- session under a sale frner»-o/ Vaudreuiln, Bastien. S. C. Montreal ; Smith, J. Assessments. Held, That a seigniorial i. S. C. Montreal; Day, Smith, Mondelet, .). Held, That the lessee of a hnnnl mill may recover from a censitnire tin' tdH (nioiifiircH) upon grain ground by tlie irn»it"/• /lenci' per arpent, nor the rcscisiim in part of such ideed. '.i L. C. Hop., p. 47b, LuiKjlinii VH. Ti'udcl. S. C. (iueboc ; liowcu, C. J., Duval, Meredith, J. iN^KMNITk. None due by a joint stock company. Sir Joint Stock CnMrANY. As to rifjhtH of lessee in the indemnity for hinds expropriated by a railway company. «SVr Landi-ord and Tknant, IkiII cmphitinfujue. Ileld, 1. That the mortmain restrictions upon the acquisition of real estate by corporations in mortmain, originated in the property so ncijuired, theniby becom- iiiL' inalieniiblo, not by the existence of the corporation beinj^ perpetual or con- tinuous. 2. That these restrictions applied to corporations aggregate, tlie clergy in gcnc- nl, reli!:;inus bodies, fraternities, municipal guilds, and others of tlio same nature, ffhicli form the class of mortmain corporations, gins dc mnin-mnrfr. 3. That modern civil corporations established for commercial and trading pur- poses, iis joint st(jck or incorporated banking, manufacturing, railway companies, i•> I* 852 8BI0M0RIAL RIQIITS. 1 1 iJl tiff, fi L. 0. Rop., p. 3, Kienknwnki vs. 7'Ae Grand Tnuik Riiilmni/ Commnu. S. 0. Moiitrcul; Mondolct, Budgloy, J. ; Smith, J., disNcntiui,'. Siimc caHc, 4 .Juri.st, p. 80. Hold in Appeal, 1. Tluit the Grand Trunli Compan^ > •• r.M hold in mort- main. 2. That the act of union or o,anlj,'nination referred to, has hi.d the cfT' t of traiin- forring the right of property of the different coinpanieH united into the luw cniii- pimy, and wu.s un uksolute nutation, having the effeet of an cxcIkhujc ,ho fur m respeets the Hhares assigned to ihoshareholderH, and heing a mlc ho far as lespetts the payment of £75,000 to the Ht. Lawreneo and Atlantic Railway Comiciiiy. 3. That the seignior is entitled to claim loih et vnntes upon that jMiitinii of the £75,000 which, upoti appraisement, may be found to represent the value of the lands within the seigniory of the plaintiff, and assigned to the new coiiipuuy defendants. 4. That in appraising such lands the value of the buildings, fences, rails, ami other improvomenta of a permanent character piust be taken into account. 10 L. C. Rep., p. 47, Kicrs/cowski, App., The Grand Trunk Jiailwai/ CoinjMnt/, Reap. Aylwiu, Duval, A. Lafontaine, J. ; Lafontaine, C. J., Meredith, J.,(lis- aonting. Foi the opinion of Mr. Justice Duval sec 10 L. C. Rep., p. 481. LoDS ET Ventes. Held, That a dation en paiement gives rise to lods et ventes. 1 L. C. Rep,, p. 50, Giiffi/ vs. Chouinard. In Appeal : Stuart, Rolland, Panot, Aylwin, J. Held, That toils et ventes are duo upon a deed in the form of a donation pure et simple (of an immovable) Tvhich was held to bo simulated and made to defendant in consideration of his resignation of his oflSce of Clerk of Appeals, with a view to the appointment of the donor in his place. 1 L. C. Rep., p. 69, Desbarats vs. Fabrique de Quebec. In Appeal : Aylwin, Panet, Rosa, J. ; Rol- land, J., dissenting. Held, That loJ' et ventes are due upon a donation d, rente viagere, and the value of the rente ordered to be ascertained by experts. 1 L. C. Rep., p. 84, Desbarats vs. Fabrique de Quebec. In Appeal : Rolland, Aylwin, J. ; Panet and Ross, J. Held, That lods et ventes are not due on a purchase by the Principal Offi- cers of Her Majesty's Ordinance, of land, it being made for public purposes, pour Vutiliti publique. 1 L. C. Rep., p. 91, Grant vs. Principal Officers of Her Majesty's Ordinance. In Appeal : Stuart, C. J., Panet, Aylwin, J. Lods et ventes from railways. See Indemnity, Lods et ventes held not to be due on a donation in a marriage contract. Baby vs. Letellier. K. B. Q. 1821. Judgment for, on a sale from father to son. Pr^vost^, N''. Od. Held, 1. That lods et vemes wee due on the sale of an immovable held under a bail eniphit4otique when, over and above the annual rent, there are deniers d'entrie. SEiaNIORlAL RIOIITS. 858 't hoM in mort- te contract. Bahy 2. That tho clause in tlio loaso in question, ^ivinj^ tlin lossno the T\<^\ii lo tike :iwny liiHbuiidinj^H at tlio expiration ol'tiio louse, did not deprive tlie wijiiiior of his ri;;lit to toils it nnfiM on the price of tiio buildinj^s, whieli were sold fur a ^|)ttnite price. I li. 0. Hep., p. 295, Diunne vs. Mithot. S. C Quebec ; Jlowcn, C. J., Duval, Meredith, J. Held, That a Hoi^tnior cannot chiini Imh it vetifrn on ft Hiile to dereiidniit who has '/t'Adm' the proj)erty on an hypntliecary action; nor can he elaini loi/n it reiifi'H at ins option on tlie price of the vohmtary sale, or iUoh donation will give rise to tmh ut ventcs in respect of a sum payubie to the donor, but not for the usual charges in a donation. Sumo case, p. 87. Held, 1. That no lods arc due on the rcsiliation of a donation which had not its perfect execution. 2. That the non-signification of an assignment (of seigniorial dues) does not iK'prive the assignee of his right to fylo an opposition u Jin de ronseruer for the ilcbt assigned. 7 L. C. llep., p. 49, Lumothe et al., App., Fontaine dit Jiien- nnue ct III., llcsp. In Appeal : Duval, Caron, Badgley, J.; Lafontaine, C. J., ilissonting. Held, That lods etvrntcs arc duo on a promise of sale accompanied by delivery, the same being equivalent to a sale. 9 L. (J. llep., p. 272, »S'emtwary of Quebec vs. Mit^uirc. S. C. Quebec ; Stuart, J. Held, That lads et oentcs are not dm; on allegations of fraud in deeds between '■'iixituirci sustained only by the juxtaposition and contents of the deeds them- u'lves. 1 Jurist, p. I'd, Sisters of General lluspital vs. Frimeau. S. C Mon- treal ; Day, Smith, Badgley, J. Held, 1. That double lods are not duo upon an onerous donation followed by ' rctrouession ; but loiU are due on tho donation only. II 854 SEIUNIORIAL Rianis. 2. That the cesxinnnnirr of the lodn may oppose the distribution of the monevv arising; from the prncccds of the iinmovablu given, and this without signification of the transport, the opposition being a conservatory act. 1 Jurist, p. Id] i„, motlic, App., Tiilouilit Lispnynicr, Kesp. In Appeal: Duval, Caron, Badgley J. ; liufontaine, C. J., dissenting. Where a proprietor of soccagc lands and of lands en cevsive, sold the soccafc lands to the defendant, and immediately exchanged the lands in free and com- mon soccagc for his lands cm criisivc ; Held, Tiiat these deeds will bo presumed to bo simulated and to cover a frauJ on the seignior. 1 Jurist, p. 200, Sinlim of Chunly (Henerol Uospilol^ App., Pfimciin, Uesp. In Appeal: Lafontainc, C. J., Aylwin, Duval, Oaron, J, Held, That / (In et ventes arc due on a deed of sale annullable, by reason of a nulUti rel'itlie. 4 Jurist, p. 290, Seminari/ n/ Quebec vs. Labelle. S. C. Mon- treal ; Monk, J. Held, That lods e' ventes may be fixed either by tbe value of the propcrtv sold, or by an estimation of the probable duration of the rentier's life, in addi- tion to the IkJs on the princip:il sum of the purchase money. 1 Rev. de Jur.. p. 184, Cnthhert vs. MrJnstn/. Q. B. Montreal, 1845. Are hih et ventes due on a hni'l emphiteotiqne h Inngues annies ? 2 Kev. dc Jur., p. 304, De LuNdudiire, App., Johin, Resp. In Appeal, 1837. Held, In an action for lods et ventes that proof of simulation of deeds niayW presumed from the deeds themselves, where there is an evident object to injure third p irlies, even althougli no one of the deeds taken separately discloses tin simulation. Rumsay vs. Guilmette. S. C. Montreal ; Cond. Rep., p. 24. Retrait Conventionnel. Abolition of by 18th Vict., c. 103, held not retroactive. See Opposition a Jin de charge. Held, That tbe retrait amventinnnel is not de droit. It is a matter of con vention, or must be stipulated in the original contract of concession, otherwise ii" actiou en retrait can be maintained. Despris vs. Fortin. K. B. Q. 1811. Retrait F£odale. Held, 1. That the reserve of the right of retrait fiod/d in a concession doc- not render such right conventionnel, but loaves it its character of retrait legal according to the Contume. 2 That an action en retrait jYodal brought before the passing of the seignior ial act of 1854, subsists, notwithstanding the abolition o{ retrait by that statute. which has not a retroactive effect. 12 L, C. Rep., p. 294. In Appeal: Lafoii taine, C. J., Duval, Mondelot, Bruneau, J. Same ca.se, l5 Jurist, p. 259. Retrait lignager dismissed for omission in offres of the words ' loi/auz couh. Cons. Sup., No. 03. Rivers. Held, 1. That a seignior, by his grant from the Crown, acquires a right d property in the soil over which a river not navigable flows, but in the ruDoini: 1^ SEIONIORIAL RIQIITS. 356 Irds ^ loijaux couU- water he has only a right of servitude while it passes through, or before, the land hu retains in his possession, which does not autliorizc him to divert the stream, or use the water, to the prejudice of other proprietors above or below him. 2. An action by a seij^nior against his co-seignior for improper use of the com- moQ estate, can be maintained. Stuart's Hep., p. 575, Ht. Louis et uL, App., St. Louis et al., Resp. In Appeal, 1834. See Water. Sale and Concession. Held, 1. Thi't an exception which only answers a portion of the declaration is bad, and will be dismissed on motion. 2. That erreur dc droit must be pleaded by exception, and not by a defense en droit. 3. That thero is nothing in the old law of France nor in the law of Lower CaiiaJii, which prohibits seigniors from conceding lands in their seigniories subject to rentes, and by tho same deed stipulating a jtrix de vente for the same laud; and a censitaiit or purchaser cannot apply to tho court to sot aside such deed for errcur de droit. 4 L. C. Hep., p. 404, Boston vs. L'Eriger dit LupUmte. S. C. Montreal; Smith, Vanfelson, 31ondelet, J. Held, 1. That the arret of the King of France, of the Oth July, 1711, applies only to cases where the seignior has refused to grant his unconcodcd lands. 2. That the iirret of 17th March, 1732, merely enjoins the clearing of forest lands, interdicting the sale of such lands, but that the two iirrvta afford no remedy to a niixltnire who complains that the rate of ccns et rcntts is too liigh, there being no law to limit such cens et rentes. 3, That a deed of concession, imj)osing one so? of cens et rentes, and seven ««/*• oinntv eonstituie is not a deed of sale, and is consecincntly not void or voidable, and that in the case submitted, the court has no power to reduce the rate of <'(7/.s (( rvnti's. 1 L. C. llcp., p. 3Ct, Lanffhis vs. Martel. S. C.Quebec; Bowcn, C. J., Duval, Meredith, J. Sec Cond. Hep., p. 93. See Seigniorial Court Judgment y)o«r Seujniobial Commissioners. Held, That moneys paid into a bank by the receiver general, to the credit of the seigniorial commissioners, upon which they ci !i draw cheques for the pur- poses of the commission, payable to the order of the lawful recipient, are not moneys in their hands. 2 Jurist, p. 251, Itamsay vs. Judah el al. S. C. Montreal ; Badgley, J. Titre Nouvel. Held, Tliat in an action en cxhilntion de titre, the defendant, if he be not a (tniitnire of the piaintiff, must plead by exception, and set forth what he is, e.y. that he is ii lessee, and what he alleges affirmatively , he must prove. BlancUet vs. 7\rm«. K. B. Q. 1817. Hck' That by the 73rd and 77th articles of tho Custom, to maintain a plea thut tilt title was exhibited before action brought, it is necessary to prove that • 356 SERVITUDR. the original title wiis left with the seignior, or that a copy thereof was delivered to him. Rvy vs. Caron. K. B. Q. 1820. Is the presence of the seignior and cenxitaire required to pass a titrc nouvd'] .'5 Rev. de Jur., p. 214, Cuthhert, App., Tellier, Rcsp. In Appeal, 1847. Held, Tiiat reservations of coup de bois dsc, contained in a t'ltrc nouvcl bctwcon .seignior and cenaituirc, are null and void if they have not been made in tlie ori- ginal title of concession. G L. C. Hep., p. 5, Trijye et hi:rd\>i. racquet. K. R. Q. 18lJ. Bail to Sheriff. As to liability of. Sec Surety, Hull to Sheriff. Held, That bail to the sheriff on a capias ad resp. are only liable for the amount stated in the bail bond, and not for the full amount of the judj^nnont rendered figaiust the party arrested. 5 L. C. Rep. p. 94, Joseph vs. C'uvilUd- et al. S. C. Montreal ; Day, Smith, Vanfelson, J. Joint Sheriff. Held, That an attachment will lie apjainst two persons appointed by commis- sion from the Crown to the oflBce of sheriff, for the non-payment of moneys levied by one ^^>i them, althouc^h the other may not have Kh-isumed the duties of the office, or acted in any manner under their commission. Stuart's Rep., p. 298, Black vs. Newton, and Buddeii, 0pp. K. B. Q. 1828. Held, That a rule on Boston sheriff alone, to pay over moneys received by Boston and Coffin as joint sheriff must be dismissed, although made after Mr Coffin ceased to be sheriff. 6 L. C. Rep., p. 472, Lefihvrc vs. Meycra, and Boston mise en cause. S. C. Montreal; Smith, Mondelet, J. IjIability of. The sheriff seized, by attachment, a large quantity of timber, and appointed a single guardian to take charge of the whole, in whose absence, during a sudden storm, a portion of the timber, not being moored or otherwise secured. went adrift and was lost : Held, 1 . That the sheriff was guilty of ordinary neglect, and responsible for the loss. 2. That the sheriff might have employed as many persons as wore necessary for the security of the timber, and havede'uandedof the plaintiff, at whoso instance llie seizure w;us made, in advance, the sums required for this purpose ; and in case of refusal, would have been exonerated from the charge and custody of the tim- ber. Stuart's Rep., p. 75, McClure vs. Shrpherd. K. B. Q. ISIIJ. Held. That an action does not lie against a sheriff for seizing property under a writ of attachment, although it be proved there was no ground for the attach- ment. McNally vs. Shepherd. K. B. Q. 1813. I ' ,11(1 responsible for SHERIFF, 369 Held, That no action en garantie lies aguinst the sheriff or against the defend- ant on a sale by decrct ford. Frees vs. Miirtinean. K. B. Q. 1809. Held, On motion for attachment against a sheriff for having returned tliat the purchaser of movables had not paid the amount of his bid, that the siierilf is responsible for the amount of all sales of personal oflects, whether he docs or does not receive it, for in such cases he ought not to part with any article he sells uatil ho has received the price. Gnnif vs. Jinlli/. K. B. Q. 1818. Held, That if a surrender by bail is not sucii that an action lies upon it ,igain.st the shcrifl' for an escape, the bail remains liable on the bail bond. JIarvii/ vs. Dcnnle ct al. K. B. Q. Held, That a party whose property has been attached by anisic rcvrndii-nfiov, of which he has obtained ni'iia Ivvie may proceed against the sheriff for the re- covery of the property, or its value, as well by rule of court in tl..'. cause, as by action against the sheriff, and also for damages by reason of the non-delivi-ry of the property. 5 L. C. Rep., p. 31)7, Trwiii, App., Boston ct al. Kesp. In Appeal : Lafontaine, C. J., Duval, Caron, J. Held, 1. That in such an action against the sheriff, tlie respondents wore not entitled to the thirty days' notice of action, under tlu; provincial act 1 ftli and 15th Vict., c. 54, for the protection of magistrates and others acting in the ner- Ibnuance of public duties. 2. That the statute has reference only to actions brought for damages, ihnnmn- (H'n et infcrels, simply, and not to actions where diimages are claimed for the non-fulfilment of a contract, or of an obligation imposed either by law or by sti- pulation. 3. That the sheriff, as seizing officer and as gardicn of effects seized, is sub- ject to the same liability ns the huissicr and yonlien under the French law, and that the responsibility did not arise from the act of 18;{G, but existed IVoni the time he was appointed to perform such duties in civil matters. 7 L. C. Rep., p. 433, Irwin, App., Buxton et at., Resp. In Appeal : Lafontaine, C. J., Ayl- win, Duval, Caron, J. Same ease, 2 Jurist, p. 171. Under a writ of sitisif, rrvrndicntion th • sheriff seized movables in the posses- sion of the defendant, wliich, on the plaintilfs pctitiim, before the return of the writ, were -old by the sheriff, and the proceeds, £208 18s. od., return'id into wiurt. ! , t of this sum was paid, by order of the court, to an Intervening party, as a privileged creditor of the defendant, and the balance, £84 2s. 7d., remained ill the sheriffs hands. The parties, plaintiff and defendant, afterwards entered into a settlement before notaries, by which the plaintiff agreed to withdraw his suit, and all matters in dispute were put an end to. Upon this, judgment was ivudered, putting the ])arties out of court, without costs. The defendant thea brought an action against the sheriff for the €84 2s. 7d., and the sheriff brought into court £\) 19h. lid., which he tendered as the bal- ance after deduction of his costs, as well on the execution of the writ, as on the sale. Held, 1. That tbe sheriff hud u right to deduct these eotits. ;i i # 360 SHERIFF. 2. That the snui could not, under tlicso circunistunccs, recover more tli.iu the Huin tondort'd. Simltic, That the abstract (jucstion of the slicriff '8 droU de rrtenfiou, or lion upon property seized en rcueitdiaifion, where the action in dlninissnl, was nut decided upon. 11 L. C. llep., p. 307, Quintin dif Diihois, App., JioHton, Rosii III Appeal : Lafontaine, C. J., Aylwin, Duviil, Meredith, J. ; Mondclet, J., di- Bentin^ SHIPS AND sniprmo. 361 ivcr more tlmii 30 ? 3 Rev. lie lli'ld, That under the 5th chiUHC of the 12lh Vict., c, 112, for tho erection of court liouHt'M and jails, and the order of the Govornor in Council of 'JOth April, 1H50, tlie sherift' is entitled to levy a tax of one per cent, for u court houBC tux in addition to the one per cent, paid under the 4th clause of the same act. 1 L. C. Hep., p, ;V.)5, Mokoii vs. McAulnj/. S. C. Montreal; Smith, Mon- delet, J. Hold, That the sheriff, and not the plaintiff, is liable to tho printer of the Qat'hce Dtticial (lazette for advertisements of sheriffs' sales therein. 1 L. C Kep., p. 17, Sleutmon et «/. vs, JJoatun et al. S. 0. Montreal; Day, Smith, Vanli'lsoM, J. lltld, That the court, on application of the sheriff, will order the plaintiff rn remiiillc'itl'in to make all advances necessary for the safe keeping of movables ■ii'lzc'd, and in i\ fault of such payment, that the sheritF and gurdicn be di.seharged I'roai lialtility. 1 Jurist, p. 92, Price vs. Wilkinson et al. S. C. Montreal ; Smith, Mondelet, Chabot, J. Held, That the court has no power to order the sheriff to sell goods seized before judgment, and which are of a perishable nature. 1 Juri.st, p. 158, La- ivfhillr VS. /^V/cJ, and J'irhe, Inter. S. C. Montreal; Day, Mondelet, Chabot, J. Held, Tiiat it is not competent for the sheriff to refuse to return a writ ih kiris (^when notified to do so by an opjxisant) unless his fees and disbur.sements art' first i)aid. 1 Jurist, p. 284, Wilson vs. /Jroirn, und Brown, Upp. S. C- Montreal ; Day, Smith, Mondelet, J. KuAis i)K (Iaiidk. iSVe Gaudien. Co.NTKAINTB AUAIN8T. tSVe CoNTRAINTE PAR CoRPS, Sheriff. LiAiJiLiTY OK Attorneys to. »S'ee Attor.vev, Sheriff's Foes. Fkks. Sei: Gardien, Frais de Gurdo. Sic KXECUTION, Formalities of. SAiiE;;. (Sec Fraud in judicial sale. Notice ok Action. iVcr Gkkicer J'unoc. .\0Tio.v AuAiNBT. See CosTS, Tariff of Fees, SHIPS AND SHIPPING. AU.MIRALTY. Hold, That a writ of prohibition to the Court of Vice- Admiralty may be issued by the Court of King's Bench. ILimitton vs. Fraser. K. B. Q. 1811. Hold, That the twiv vuiritime of France, if it ever was in force in Canada, was not a part of the common law, but of the droit pnlilic, and consc(|uently was suporsodod by the effect of the eomiuest, and if it was law in the admiralty juris- diction of that time, whether it was a part of the public law, or of the common law, it was abolished by the marine luw of England. Bnldwin vs. Gibbon, K. B. Q. 1815. Hold, That moneys in the hands of a judge or marshal of the admiralty, by virtui' of his office, cannot bo attached by process issut^d out of the King s Bench. Perrault vs. McCarthy, and Kcr and D'EstimauviUc, T.S. K. B. Q. 181G. 862 SHIPS AND SIIIPPINO. ADMIRAriTY — CoMMimioir. * 1 II 1 1 i 1 1 1 1 1 I rUl Sill! m 1 • MMfJ ■! I i CommiaHion of viccadiniral, undor tho f;rcat sciii of the Tligh Court of Admi. ralty of Knglaiid, to Jaiiu's Murray, captain-}j;oiicral and f^r)vcrn(»r-iii-cliicf in and over tho province of Quebec, in Auieriou, dated 19th March, 17(54. Stuurt'h Ad. Rep., p. :{7(). ConiiniHsion under tho ^reat seal of tho High Court of Admiralty of Kii^land nppointiiij: Henry Black judge of tho Vice- Admiralty Court for Lower Canada dated 27th Octr., 1H38. Stuart'H Ad. Uop., p. ;{70. Commis.sion under tlie great Hoal of Great Britain, for tho trial of offoncch committed within the jurisdiction of the admiralty of England, dated 3Uth Oct. 1841. Stuart's Ad. llep., p. :J80. Ad.miralty — Jurisdiction. Hold, 1. That the Admiralty Court has jurisdiction in cases of i)osscH,sion to roinstutu owners of ships wiio have been wrongfully displaced from tiieir posses- sion. 2. That where the admiralty has original cognizance of the principal mutter, it has aho cognizance uf the incidents thereto. 3. That whore a limited jurisdiction is given to justices of tho peace, they can- not extend their jurisdiction to objects not within it, by tiiiding us u fact tliut which is not a fact ; and their warrant, in such oases, will be no protcctiuu to the officer who acts under it. 4. That under the IKOth section of the Merchant's Shipping Act, no seaman engaged for a voyage or engagement to terminate in the United Kingdom, can .sue in any court abroad for wages, unless ho is discharged with such sanutiuu as is re(iuired by that act. 5. That under tho 52Gth .section of that act, a ship cannot be seized upon an order made against a person who, at the time, is neither owner nor entrusted with tho possession of her. 6. That a maritime lien is not indelible, but may bo lost through delay tc enforce it when the rights of other persons have intervened. 10 L. C. Uop,, p, 101, The IJuUlee — Knnptliorn. Vice- Admiralty Court, L. C. Black, J. Hold, 1. That tho Court of Aduiiralty, except in prizes, exercises au original jurisdiction only on the ground of established usage and authority. 2. That it has no jurisdiction of any contract upon land, and the general rule is, that if a contract be made on land to bo executed at sea, or be made at sea to bo executed ou laud, tho common law has tho profereuoo, and excludes the admiralty. 3. The cause must arise wholly on tho sea, and not within the precincts of any county to give the admiralty jurisdiction. 3. The cases whore tho admiralty has jurisdiction by reason of the .subject matter and where tho proceedings are in rem. are a cla,ss by themselves. 5. The admiralty jurisdiction as to torts, depends upon the locality, and is limited to torta committed on the high seas. 6. Personal torts committed in the harbor of Quebec arc not within the juris- SniPB AND SniPPINQ. 363 principul mutter, diction of the admiralty. 10 L. C. Hop., p. 101, The Haidee—Kvmpthorn. Vice-Admiralty Court, L. C. Black J. Held, That thu admiralty cnturtaiiig juri.sdiction of personal torts committed bv tiie master of a vessel on a passenj^er, if arising on the higliseas. The Toronto l-l'oUinxon. Stuart's Ad. Rep., p. 181. Held, 1. That the jurisdietiori of tho court in cases of pilotage is undoubted. 2. Tiiat it has no jurisdiction in cases where there has been a previous luilgiiient of a court of concurrent jurisdiction ujmn the same cause of demand. Thr I'hirhe vs. Jinltrai/. Stuart's Ad. Rep., p. GO. Held, That it has jurisdiction in relation to claims of pilots for extra pilotage in the nature of salvage for extraordinary services rendered by them. The Adiniture — Pcverly. Stuart's Ad. Rep., p. 101. Held, 1. Also in suits for damage to a ship by collision, notwithstanding the (UUHC of action may have arisen out of the local limits of the court. 2. Also in matters of (msscssion at tho suit of the owner or owners of a majority (tf interests in a ship to obtain possession thereof. The Mary and Dorothy — Teesdide, Stuart's Ad. Rep., p. 187. Held, 1. That by the 3rd and 4th Vict., c. 55, sect. G, the High Court of Ad- miralty bos jurisdiction to decide all, claims of salvage and damage to any sea- ^wiiig ship or vessel, and to enforce payment thereof, whether such «hip or ve!«!>cl may have been within the body of a county or on the high seas at the time when the cause of action accrued. 2. Ancient jurisdiction restored by the same statute with respect to claims of material men, for necessaries furnished to foreign ships. 3. It has no authority to enforce demands for work done, or materials fur- nished in England to ships owned there. 4. Nor has the Vice-Admiralty of Lower Canada jurisdiction with respect to claims of material men for materials furnished to ships owned there. The Mary .I'uic — Trescoivthick. Stuart's Ad. Rep., p. 267. Held, That the Court of Vice-Admiralty, L.C., exercises jurisdiction in a case of a vessel injured by collision in the river St. Lawrence near the city of Quebec. The Camillus—Baird. Stuart's Ad. Rep., p. 383. Held, That all admiralty suits in the British courts are summary onuses, and justice is administered levato velo. The Wervham — liobson. Stuart's Ad. Rep., p. 70. Additional rules for courts of Vice-Admiralty abroad, established by Her •Majesty's order in Council.of date 6th July, 1859. See 10 L. C. Rep., p. 209. See also COLLISION. See PRfevoSTfi No. 80. 10 precincts of any t within the juris- Appeal — Admiralty. Held, That the appellate jurisdiction of the High Court of Admiralty from courts of Vice- Admiralty is, by the 3rd and 4th Will. 4, c. 41, transferred to tlie judicial committee of the Privy Council. Stuart's Ad. Rep., p. 5. Held, That all appeals from decrees of the Vice-Admiralty Courts are to be asserted within fifteen days after the date of the decree, which is to be done by the proctor declaring the same in court, and a minute thereof is to be entered in 864 JIIIP8 AND SlITPPINO. the ajwinnation book, nnd the piirty mu<(k also giro bnil within fiflct«ti thy-. from tii>! usHcrtion of the apiieal to answer the coHts of «uoh npiKMil. //>,, p. 44 Amkndmknt— Admihai.ty. AinctKhiicnt in the warrant of attaehinont not allowed for an alleged error nm appan-nt in tiieaetn and proceedingH in the Huit. The Aid — Nutliiill. Stuart > Ad. Hep., p. liin. AiiiiEriT OP Ship. Held, That a vessel loathsd and ready for so.i can ho arrested for a civil M<\ of the owner nneontu'cted with the Hhip. Stuart's Hep., p. 45i{, J'ltnint \> Greniit. K. B. Q. 1831. Attachment. Attaelunent awarded against n nia.Ht«r for taking out of the jurisdiction of flu court his vessel, which had been regularly attached. The Friend* — Dunniu. Stuart's Ad. Hep., p. 72. Application for an attachment for cnntenipt, for resisting the process of tlii court, rejected ; the statement of the affair being contradicted by the afli(lavit> of two other jjcrsons present at the arrest. The Surah — Sincldir. .StuarlV Ad. Hop., p. 8G. Applications for an attachment for a contempt against a magistrate first a.'iz('(I of a seaman's suit, for having i.ssued a warrant and arrested the seaman \vliil,''t attending his proctor for the purpose of bringing the suit, rejected. Th' Iniibe'lh —Millir. Stuart's Ad. Hep., p. i:J4. Attachment decreed forc(»ntempt in obstructing the marshal in the executidn of the process of the court. The Delta— Murray. Stuart's Ad. Hcp.,p. 2W7. Attorney-General. ITcld, Tli;\t during the absence of the attorney-general tlie powers and dutios oi ti'o office devolve upon the solicitor-general. The Dam/rie^hirc — Gowim Stuart's Ad. Hep., p. 245. Bill op Lapino. Held, That the placing of goods on board a vessel by a debtor, addressed tn hia creditor without a previous sale or agreement to that effect, does not transfer the property or posses.sion to the consignee ; and such goods may be seized bcf'or they ruach the hands of the consignee, notwithstanding a bill of lading has bwii signed. 5 I.. C. Hip., p. 2!1, Frechette vs. Corbet, and 0pp. S. C. Quebec; Bowcn, C. J., Meredith, J. Bottomry. Held, 1. That maritime interest at the rate of 25 per cent, on a bottomry bond, given at Quebec, will not be considered exorbitant. 2. The Gth Geo. 1, c. 18, commonly called the South Sea Bubble Act, dot'> not extend to the American Colonies. Stuart's Hep., p. 130, White ct u{. vs Ship Badalus. High Court of Admiralty ; Sir W. Scott. 8III1»8 AND SniPPINO. 805 . on a bottomry Builder's Privileoe, Hi'ld, 1. That a builder'H prlvilc},'0 on a Hhip of Iuh own constrnctioii is loHt if ho (liiliviTH lii'r to thi; '.j'.viscr aii>l .■miiu^ih hor knowiii^^iy to bo »old to u third ikthiiii by public auction without opposition, 2. Tlio rode imirim; if it over was in loruo, wa« no part of the eoinnion l:iw of Cun:i(lii, but a part of tbo pul)lio law, and coiist!<|U('ntly was supcrsodcd by tho i-fftct of tho (M)n<|ueHt; and if it wa.4 biw in thu adniinilty jurisdiction alone, whether it wiiH public or coninion, tho introduction of the Kn^dish admiralty law ,ilH)lishod it. Stuart'8 llep., p. 7-, Jidldwin vs. Gihktnt, and McCti/lum, 0pp. K B. y. 181" A niercantia! house at Newry ilirects a bouHo at Quebec to contract for tho liuildin^ of a ship for which they, thv Newry liouse, would send the ri^i^^inj;. Tho (Quebec bouHO .tor into a contract witii muuo whip-buililers aee(irdinf;ly. The Newry house then direct their correspondent at LiverjMiol to wend out tho rig- i^iii^ ; he does so, and it iiaving been actually delivered to tlie Quebec house : Held, Tiiat the prc.|)erty in it was vosUmI iu the Newry liouse, and that the (Quebec house had a right to retain it against « Liverpool correspondent, on iiceount of their lien on it for adviinces made no builders, and payment of CU8- toin house expenses, although previously to the delivery, they had obtained an .•issigiiment of the ship to themselves from the builders, and bad registered it in lliu name of one of tho partners of their house. Stuart's llep., p. -llii, lioijcr»vn ft til. vs. Heed. In the I'rivy Council, 1830. C0LM8ION. Held, That there are four probabilities under which a collision may occur: 1. It may occur from the fault or misconduct of the vessel suffering from the ruUision. 2. Or the accident may have happened from unavoidable circumstances with- out fault on the part of either ves.>iel. 3. Or both parties may be to blame, us where there has been u want of skill or duo diligence on both sides. 4. Or the loss or damage may be owinj, to tho fault or misconduct of the vessel I'lmrged as the wrong-doer. In tho first two cases, no action lies for tho damage arising from the collision. In the third case, the law ap|Mirtions the loss between the parties as having lieen occasioned by tho fault of both of them. In the fourth case, the injured party is entitled to full compensation from the party inflicting the injury. The Camherlund — Tickle, Stuart's Ad. llep., p. 75. The JS'ebon Villuyc — Power. Jh., p. 150. Held, 1. That owners of vessels are not exempt from their legal responsibility, notwithstanding that their vessel wa.s under the care and management of a pilot. 2. A vessel giving a foul berth to another vessel is liable in damages fiir collision done to the vessel to which such foul berth was given by her, although the imme- diate cause of the collision was u vis major, and no unskilfulucss or misconduct WHS imputable to the offending vessel after giving such ibul berth. 2'/ie Cum- lirrlwid — Tickle. Stuart's Ad. llep., p. 75. i» ,.'^.. IMAGE EVALUATION TEST TARGET (MT-3) i^<^ 1.0 1.1 no |Z8 m 12.2 i U Hli ^ U^ 12.0 i 1.8 {{■■25 |U |i.6 < 6" ► V] ^ ^ ..*.''^' V ■^' / Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 V^^' o- ^ '^^^ 'H,^ I/. i9 '< • It ) i 1 1 1 1 » 11. 1 -i 366 SHIPS AND BHIPPING. Held, That in a case of colliBion between two ships ascending the river St. Lawrence, the court, assisted out by a captain of the royal navy, pronounced for damages, holding that when two vessels are crossing each other in opposite direc- tions, and there is doubt of their going clear, the vessel upon the port or larboard tack is to bear up, and heave about for the vessel on the starboard tack. The Nelson Villuge — Power. Stuart's Ad. Rep., p. 156. Held, That the Court of Admiralty has jurisdiction in the case of a vessel injured by collision in the river St. Lawrence near the city of Quebec. Stuart's Rep., p. 158, Howard VB. The Camillus. Vice-Admiralty Court; Kerr, J., 1823. So held in K. B. Q. ; Ritchie vs. Orkney et ux. Stuart's Rep., p. 613. Held, That under the words " court or session having jurisdiction in the port " or place at which a ship shall arrive " contained in the 57th Geo. 3, c. 10, sect. 6, the Court of Vice- Admiralty claims jurisdiction in proceedings for penalties and forfeitures under that act. Stuart's Rep., p. 163, Wilson vs. Nbrris. Vice- Admiralty Court; Kerr^ J., 1823. Held, In a case of collision by one steam vessel against another, where the loss was charged to be owing to the negligence of defendants, and so held by the court, damages and costs will be awarded. Query ? Whether, under certain circumstances, one moiety of the aggregate amount of damage should not be borne by each party. Stuart's Rep., p. 441, Maitland et ah, vs. Mohon et al., Resp. In Appeal, 1830. Held, That in a case of collision, if the damages have been occasioned by accident or by a vis major, the loss must be borne by the party who has suffered it. 1 L. C. Rep., p. 485. Case of the Sarah Ann. Vice- Admiralty Court, L. C. ; Black, J. Held, 1. That the nautical rule long established is, that if two sailing vessels, both upon a wind, are so approaching each other, the one on the starboard the other on the port tack, as that there will be danger of collision if both con- tinue their course, it is the duty of the vessel on the port tack immediately to give way. 2. That the vessel on the port tack is to bear away so early as to prevent all chance of a collision occurring. 4 L. C. Rep., p. 38, The Eoslin Castle vs. The Glencairn. Vice-Admiralty Court, L. C. ; Black, J. Held, That if it appear in evidence that there was no proper and sufficient look-out on board of a ship, and a collision occur between such ship and another towed by a steamer, because the steamer was not seen by such vessel in time to enable her to make the necessary manoeuvres to avoid a collision, that the want of such look-out is sufficient neglect to make her liable in damages, although she adopted the most seamanlike and proper course when the collision was all but inevitable. 4 L. C. Rep., p. 264, The Niagara — The Elizabeth. Vice- Admiralty Court, L. C. ; Black, J. Held, 1. That where a vessel at anchor is run dowa by another vessel, thf vessel under way is bound to show, by clear and indisputable evidence, that the accident did not arise from any fault or negligence on her part. 2. That neither by the maritime nor the common law is a veasel or a carriage SHIPS AND SHIPPING. 867 ik immediately to !8sel or a carriage justified in not taking proper precautions against a collision with another, by the fact that such other is not in its proper position or side of the road, or is in any way contravening any rule of the sea or of the road. 3. That it is no defence on the part of the vessel under weigh, to say that the vessel at anchor had not complied strictly with all the Trinity House regulations in relation to hanging out lights at night, if it appear that the collision took place in consequence of the fault or negligence of the vessel under weigh. 10 L. C. Rep., p. 5, The Martha — Sophia Berichot. Vice-Admiralty Court, L. C. ; Black, J* Held, 1. That where a collision occurs without blame being imputable to either party, the misfortune must be borne by the party on whom it happens to light. 2. The practice of the court is, not to give costs on either side where a collision has occurred from inevitable accident. 10 L. C. Bep., p. 113, The Margaret — Clarke. Vice-Admiralty Court L. C. ; Black, J. Held, That in a case of collision, where the evidence on both sides is conflict- ing and nicely balanced, the court will be guided by the probabilities of the respective cases which are set up, and owners of the vessel proceeded against dis. missed without costs. 10 L. C. Rep., p. 362, The Aisla — Alexander. Vice- Admiralty Court. L. C. ; Black, J. Held, 1. That the Court of Admiralty has jurisdiction in cases of collision occurring on the high seas, where both the vessels are the property of foreign owners. ' 2. That questions of collision are communis juris, and in cases where botli parties are foreigners, the important distinction is whether the case be communis juris or not. 3. In a case of damage by collision it was held that the damage was the result of inevitable accident arising from foggy weather, and the vessel proceeded against was dismissed accordingly. 4. Where damage is occasioned by unavoidable accident, the loss must be borne by the party on whom it has fallen. 5. The law imposes upon a vessel having the wind free, the obligation of taking proper measures to get out of the way of a vessel close hauled. 10 L. C- Rep., p. 411, The Anne Johanne — Larsen, Vice-Admiralty Court, L.C. ; Black, J. Held, I. That as between a British and a foreign ship within Canadian waters, the act regulating the Canadian waters must be the rule of the court, and that the duty and the right of both parties must be determined by it. 2. That the power of the Canadian Legislature extends to foreigners when within Canadian jurisdiction. 3. If a collision occur in the night time between two sailing vessels on the St. Lawrence, by the non-observance of the rule respecting lights, the owner of the vessel by which such rule has been infringed cannot recover for any damage sustained in the collision. 10 L. C. Rep., p. 445, Aurora — Morrison. Vice- Admiralty Court, L. C. ; Black, J. Held, That in a case of collision between two vessels on the Lachine canal, where the injured vessel in violation of the rules and regulations of the canal, was on the wrong side of the canal, the owner of the other vessel is not liable in 'H 368 SHIPS AND SHIPPING. damages in the absence of proof of any wilful act or negligence on the part of his crew. 3 Jurist, p. 225, Leger vs. Jackson. S. C. Montreal ; Smith, J. Held, In an action for collision, that the regulation of the Trinity House requiring that light should be exhibited on all rafts, is applicable to cribs or small rafts attached to vessels when loading them, 2 Rev. de Jur., p. 155, Dickey vs. McKenzie. Q. B. Q. 1847. Held, 1. In a case of collision, that the history of the ship proceeded against for some days previous to collision was admissible as being usual and convenient in a plea or responsive allegation. 2. Such only of the statements made by the mate and seamen of the ship proceeding as formed part of thu res gestae were admissible. 3. The age of the ship proceeding might be pleaded to account for her loss. 4. Inasmuch as the protest itself was to be brought in, the siatements contained in it need not be pleaded. 5. The delay appearing on the face of the proceedings, and not being accounted for in the libel, it was not necessary to set it up in the responsive allegation. 2 Rev. de Jur., p. 288, The Mellora, Before Lushington. 1 84G. Held, 1. The meaning of the act respecting the navigation of Canadian waters is, that wherever two vessels are seen from each other, even in parallel courses, provided they are close to each other, or in any course, so that there is reason- able probability of a collision, it is their duty, unless there be some impedi- ment, to obey the law. 2. Where a steamer, coming down the river in a dark night, meets a sailing vessel, and those in charge of the steamer are in doubt what course the sailing vessel is upon, it is their duty to ease her engine and slacken her speed until they ascertain the course of the sailing vessel. 3. The rule of the Admiralty Court, that in case of mutual blame the damage will be divided, is superseded by section 12 of the act respecting the navigation of Canadian waters, and the penalty imposed on a party neglecting the rules en- joined by sect. 8 of that statute, will be construed as the like clauses (296 and 298) in the British Merchant Shipping Act, as preventing the owner of one vessel recovering damages fiom the other, although also in fault. 12 L. C. Rep., p. 238, The Arabian — Simard; The Alma — Brodie. Vice- Admiralty Court, L. C. ; Black, J. Held, 1. That if in case of collision between two vessels in a canal, tlieplain- tiflF's vessel was on the wrong side of the canal, and had not the light usually car- ried, he will be allowed no damage, even if there were doubt as to the cause of the collision. 2. That, in the case submitted, there was evidence of negligence on the part of the plaintiff, and that therefore no damages could be awarded to him. 12 L. C. • Rep., p. 304, Bertrand vs. Dickinson. S. C. Montreal : Badgley, J: A steamer going up the St. Lawrence on a voyage from Quebec to Montreal saw the light of another steamer coming down the river, distant about two miles, and when at the distance of rather more than half a mile took a diagonal course across the river in order to gain the south channel, starboarding her helm, and then putting it hard to starboard. The steamer coming downwards having put her helm to port, a collision ensued : J on the part of ; Smitli, J. ! Trinity House to cribs or small 1 55, Dickey vs. rocoedcd against I and convenient men of the ship int for her loss. cments contained t being accounted iVe allegation. 2 :' Canadian waters I parallel courses, t there is reason- be some impedi- t, meets a sailing lourse the sailing r speed until they ilame the damage ig the navigation Iting the rules en- clauses (296 and lie owner of one 12 L. C. Rep., JAdniiralty Court, canal, the plain- I light usually ear- ls to the cause of Ince on the part of lo him. 12 L. C. ■ lebcc to Montreal about two miles, diagonal course ivx lier helm, and mrds having put SHIPS AND SHIPPING. 369 Held, That the vessels were meeting each other within the meaning of the set for the navigation of the waters of Canada, (22nd Vict., o. 19) and the steamer going up the river was solely to blame fur the collision, in not hr.ving put her helm to port. Damage allowed. 12 L. C. Hep., p. 393, The James Mc- Kenzie. Vice-Admiralty Court, L. C; Black, J. Held, 1. That in cases of collision ariMing from negligence or unskilfulness in the management of the ship doing the injury, the pilot having the control of the ship is not a competent witness for such ship, without a release, although the master is. 2. Ship held liable for collision notwithstanding there bi-inga pilot on board. 3. Where one ship is at anchor it augurs great want of skill and attention, in a harbor like that of Quebec, ior a ship under sail to be so brought to as to run foul of her. 4. Damages awarded in case of a collision in the harbor of Quebec. The Lord John Russell — Youtig, Stuart's Ad. Rep., p. 190. Held, 1. That a pilot act, which obliges vessels going out or coming into port to receive a pilot under a penalty or forfeiture of half pilotage is not compulsory, but is optional. The ship need not take a pilot if it prefer to pay t.io penalty or forfeiture. 2. The circumstance of having a pilot on board and acting in conformity with his directions does not operate as a discharge of the responsibility of the owner. The Criole. Stuart's Ad. Rep., p. 199. Held, 1. That vessels are required on a dark night to show their position by a fixed light while at anchor in the harbor of Quebec, and the want of such light will amount to negligence so as to leave a claim for any injury received from other vessels running foul of them. 2. Master may avail himself of the wind and tide and sail into port by night »s well as by day. 3. By-laws of Trinity House respecting lights are not abrogated by desuetude or non-user ? 4. The hoisting of a light in a river or harbor at night amid an active com- merce is a precaution imperiously demanded by prudence, and the omission oannot be considered otherwise than as negligence per se. 5. That the by-law of the Trinity House of 12th April, 1850, requires a distinct light in the fore-rigging " during the night." The Mary Campbell —Simons. Stuart's Ad. Rep., p. 222. Held, 1. That in a case of collision against a ship for running foul of a float- ing light vessel, the court will pronounce for damages. 2. In such a case the presumption is gross negligence or want of skill and the burthen is cast on the ship master to repel that presumption. The Mira- michi— Grieve. Stuart's Ad. Rep., p. 237. How ships moored are protected against the intrusion of ships under sail. Stuart's Ad. Rep., p. 241. Held, 1. That the omission to have a light on board in a river or harbor at oight, amounts to negligence j>er se. 1 •1. • f ( I . 1 'i ■ \ ;h •>r ■ ] 1 1 iiliti 370 SHIPS AND SHIPPING. i :. :^;! 1 ' '■ ■p'l* I 1 1 i: . v: n & :{ 2. Every night, in the absence of a moon, is a dark night in tho purview of the Trinity House regulations of the 28ti» June, 1805. 3. More credit is to be attached to the crew that arc on the alert, than to the crew of the vessel that is placed at rest. 4. The regulations of the Trinity House require a strict construction in favor of their application. 5. Having a light on board in such case is an indispensable precaution, Tlu Dahlia— Grossanl Stuart's Ad. Rep., p. 242. Hold, 1. That in a case of collision, where the loss was charged to be owing to negligence, malice, or want of skill, the court, with the assistance of a captain in the royal navy, being of opinion that the danger was occasioned bj accident, chiefly imputable to the imprudence of tho injured vessel, and not to, the misconduct of the other vessel, dismissed the owners of the latter vessel with costs. 2. The general rule of navigation is when a ship is in stays or in the act ot going about, as she becomes for the time unmanageable, it is the duty of any ship that is near her, to give her sufficient room. 3. But when a ship goes about very near to another and without giving any preparatory indications from which that other can, under the circumstances, be warned in time to make the necessary preparations for giving room, the damage consequent upon want of sufficient room may arise from the fault ol those in charge of the ship going about at an improper time or place. 4. Or, in the case of darkness, fog or other circumstances, rendering it impos- sible for the ships to see each other so distinctly as to ^atch each other's evolu- tions, the fault may be with neither. The Zeonidas — Arnold. Stuart's Ad. Rep., p. 226. Held, That if it be practicable for a vessel which is following close upon the track of another to pursue a course which is safe, and she adopts one which is perilous, then, if mischief ensue, she is answerable for all consequences. The John Munn — Richardson. Stuart's Ad. Rep., p. 2G5. Held, In a case of collision between two steam vessels, the court, assisted by a captain in the royal navy, pronounced for damages and costs,- holding that the one which crossed the course of the other was to blame. The Bytown— Humjphrei/. Stuart's Ad. Rep., p. 278. Held, 1. That where it appeared that the collision was the e£fect of mere accident or that overriding necessity which the law designates by the term vis major, the action will be dismissed with costs. 2. In order to support an action for damages in a case of collision, it is neces- sary distinctly to prove that the collision arose from the fault of the persons on board of the vessel charged as the wrong doers, or from the fault of the per- sons on board of that vessel, and of those on board of the injured vessel. 3. Where both parties are mutually blamable in not taking measures to pre- vent accidentSj the rule is to apportion equally the damage between the parties according to maritihae law as administered in the Admiralty Court. The Sarah Anne—Hocker. Stuart's Ad. Rep., p. 294. Two steamers were coming from Montreal to Quebec, and when opposite the SHIPS AND SIIIPPINQ. 371 I tho pun'iow of Icrt, than to tlic truction in favor irecaution. Tlu s charged to be ic assistance of a as occasioned by I vessel, and not : the latter vessel i or in the act ol s the duty of any ithout givins; any he circumstances, giving room, the from the fault ot f place. ■cndering it impos- each other's evolu- old. Stuart's Ad. lowing close upon adopts one which nsequencea. The the court, assistwi [costs,- holding that The Bytown— the effect of mere les by the term vU |olUsion, it is necea- of the persons on le fault of the per- lired vessel, jig measures to pre- ietweea the parties [court. The Sarah when opposite the city of Quebec, tho one took the course usual on such occasions, and passed down below the lowermost wharf at the mouth of the river 8t. Charles, where she turned to stem tho tide, and come to the wh.irf at whlcli slio was to land her pas- scn^ers, and the other did not descend so low but m;ido a short and unusual turn with the intention of passing acros-s the course of the former, and ahead of her after she had turned and was coniiiiir up :i.;i)inst the tide : Held, 1. That the collision coniiihiiiicil ofresultod from a rash and hazardous attempt on the part of those on board of the stuanior which made such short and unusual turn, to cross the course ■ f tho other, contniry to the usual practice and custom of tlic river, and the rules of good seamanship, for the purpose of beinjr earlier at her wharf. 2. That mananivrcs of this dangcrou." kind, which might, in a crowded port like thiit of Quebec, result in the most serious loss of property and of life, ouglit to be di.«countenanccd. 3. In this case, the objectionable manoeuvre appeared to have proceeded from a spirit of eager compctitirn and from miscalculation, and not from any attempt to iiijarc tlu competing vessel. The Crescent — Tate. The Rowland Hill — Ei/aii. Stuart's Ad. Rep., p. 28!). Held, That the settled nautical rule is, that if two sailing vessels, both upon a wind, are so approaching each other, the one on the starboard, and the other on tho port tack, as that there will be danger of a collision if each continue her course, it is the duty of the vessel on the port tack immediately to give way, and the vessel on the port tack is to bear away so early and eifectually as to prevent all chance of collision occurring. The Roslin Castle ; — Saddler, TheGlcncairn —Crawford. Stuart's Ad. Rep., p. 303. 1. The court pronounced for damages against a vessel sailing down the river St. Lawrence on her homeward voyage to Liverpool, running foul of another coming up in tow of a steamer, the night at the time being reasonably clear and suffi- , ciently so for lights to be seen at a moderate distance. 2. There is no rule of law preventing vessels from entering or leaving tho harbor of Quebec at any hour, or obliging them to keep any particular track, or part of the channel in so doing. 3. On this occasion the outgoing vessel had the wind large, and as steamers are to be considered in the light of vessels navigating with a fair wind, the steamer and the outgoing vessel were considered in this respect as on an equality. 4. A vessel in tow with a headwind and no sails, and fast to the steamer, so that she could only steer to a certain distance on eitlier side of the course in which she was towed by the steamer is powerless, to a very great extent. 5. The general rule is, that where two ves-ols are approaching each other both having the wind large and approaching each other so tliat if each continued in her course there would be danger of collision, each shall port helm so as to leave the other on the larboard hand in passing. 6. But it is not necessary that because two vessels are proceeding in opposite directions, there being plenty of room, the one vessel should cross the course of the other, in order to pass her on the larboard. 7. If a vessel take every precaution against approaching danger, it is not suffi- r i \ 'i' 4i Sitfl ,;j : I I 872 SHIPS AND SniPPINO. :• I Jfi cicnt to subject her to dama<];o for injury to another by collision, that in the moment of danger those on board such vessel did not make use of every meana that might appear proper to a cool spectator. There must bo gross negligence. 8. If the collision arose solely from the misconduct of those on board the steam tug, both the other vessels arc exempt from responsibility, and the action on the part of each must be dismissed, leaving them to their recourse against the steamer. 9. The law in such case is, that the tow is not responsible for an accident arising from the mistake or misconduct of the tug. 10. Upon points submitted for the professional opinion of assessors, their opinion should be as definite, as in a complicated case of this nature it is possible it should be. 11. In certain cases, the court will direct the questions to be reconsidered and more definitely answered. 12. If there was no proper and sufficient look-out, and if the proper means were not adopted for avoiding collision after the time when the other vessel's lights were seen, her having taken the most seamanlikc and proper course when the collision was all but inevitable does not exempt a vessel from liability. 13. Although there may be a rule of the sea, yet a man who has the manage- ment of one ship is not allowed to follow that rule to the injury of the vessel of another when he could avoid the injury by pursuing a diffijrent course. Tlie Niagara — Taylor. The Elizabeth — Nowell. Stuart's Ad. Rep., p. 308. Held, 1. That the harbor master has authority to station all ships or vessels which come to the harbor of Quebec, or haul into any wharf within the same, and to regulate the mooring and fastening and shifting and removal of such ships or vessels. 2. Where berths had been assigned or confirmed by the harbor master to several vessels in a dock in the harbor of Quebec, and the harbor master expressly directed the vessel proceeded against to remain in the position she then occupied for the night, warning the master at the same time of the damage which would be incurred if he attempted to haul further in, because there was not room enough in the dock ; and the master hauled his vessel forward, and, as the water fell in the dock, and the space between the wharves at the water level diminished, the vessels became tightly jammed together so that it was impossible to move them, and as the water continued to fall the pressure became so great that one of the other vessels was completely crushed and another was suspended between the crushed vessel and the wharf and thrown over nearly on her beam ends, thereby receiving great damag.', the owner of the vessel so contravening the har- bor master's orders will be condemned in damages and costs. The New York Packet — Marshead. Stuart's Ad. Rep , p. 325. Held, That by the Merchant Shipping Act (17th and 18th Vict., c. 104, gects. 296 and 297) and the Steam Navigation Act (14th and 15th Vict., c. 79) as well as by the rule of the Trinity House of Quebec, when a steamer meets a sailing vessel going free, and there is danger of collision it is the duty of each vessel to put her helm to port and pass to the right unless the circumstances are sueh u to render the following of the rule impracticable or dangerous. [ lion, that in tlie 3 of every means •OSS negligence. 1 board tlic steam the action on the lurso against the e for an accident (f aascssois, their iture it ia possible be reconsidered proper means were ,her vessel's lights • course when the lability. 10 has the manage- iry of the vessel of ■rent course. The Rep., p. 308. all ships or vessels [f within the same, d removal of such or master to several master expressly she then occupied mage which would as not room enough as the water fell in level diminished, impossible to move e so great that one suspended between on her beam ends, ntravening the bar- The New York 18th Vict., c. 104, .15thVict.,c.79) a steamer meets a is the duty of each le circumstances are laogerouB. snips AND SHIPPINQ. 878 2. No sufficient oxcuao being found for not following this rule, a sailing vessel was condemned in damages and coats for putting her hehu to starboard and passing to the loft of a steam tow boat, thereby causing collision with the veasel in tow, the steamer and her tow coming down the channel nearly or exactly upon a lino with the course of the sailing vessel. 3. Conflict of EngKsh and American law how to steer. The Inga — Eilertsen. Stuart's Ad. Rep., p. 335. 1. Liability of steamboat for collision between vessels one of which is towed by the steamboat. 2. Cases may occur in which an accident may arise from the fault of the tow, without any error or mismanagement on the part of the tug, and in such case the tow alone must be aniwerablc for the consequences. 3. Cases also may occur in which both are in fault, and in such cases both vessels would be liable to the injured vessel, whatever might be their responsibility inter se. The John Counter — Miller. Stuart's Ad. Rep., p, 344. Held, 1. That where two ships, close hauled on opposite tnks meet, and there would be danger of collision if each continued her course, the one on the port tack shall give way, and the other shall hold her course. 2. She is not to do this, if by so doing, she would cause unnecessary risk to the other. 3. Neither is the other bound to obey the rule, if by so doing she would run into unavoidable or imminent danger, but if there be no such danger the one on the starboard tack is entitled to the benefit of the rule. 4. The circumstances of the case examined, and no sufficient excuse being found for not following the rule, the vessel inflicting the injury condemned in damages and costs. The Mary Bannytyne.— Ferguson. Stuart's Ad. Rep., p. 350. Held, That the Court of Vice-Admiralty exercises jurisdiction in the case of a vessel injured by collision in the river St Lawrence near the city of Quebec. The Camillus — Baird. Stuart's Ad. Rep., p. 383. Doubts which had arisen on this head removed by 2nd Will. 4, a 51, sect. 6. CoNSOLATo Del Mare. The 148th and 149th capitolo of the Consolato Del Mare declare that the sale of the ship, or the change of the master, operates as a discharge of the seamen. The Scotia — Risk. Stuart's Ad. Rep., p. 166. Costs in Admiralty. Costs Held, That the Court may exercise a legal discretion as to costs, refused in this case. The Agnes — Taylor. Stuart's Ad. Rep., p. 57. Held, That if a suit be brought by a seaman for wages, a settlement without the concurrence of the promoter's proctor does not bar the claim for coats. The court will inquire whether the arrangement was or was not reasonable and just, «nd relieve the proctor if it were not so. The Thetis — Watkinson. 'Stuart's Ad. Rep., p. 363. Deuurraqe — Detention. Held, 1. That, In the absence of an express agreement, no demurrage can be I' I tV' ; II' i ;l 374 SHIPS AND SniPPINfl. claimed by the master of a vessel detained beyond ii proper time for loadin" and unloading. 2. That damages for such detention can bo claimed, and must bo proved. 3. That the consignee is not bound to discharge cargo of a sailing vessel loaded with grain, according to the Consolidated Statutes of Lower Canada, c. IGO, at a greater rate than two thousand miuols per day, G Jurist, p. 119, Marchml vs. Renaml. S. C. Montreal ; Badgley, J. Damage, Personal — Admiralty. 1. Damages awarded to a steward for assault committed upon him by the master without cause. 2. Those who have the command of ships are not, under the color of disci- pline, to inflict unnecessary, wanton, and unlawful punishment upon those uudcr their control. The fSamh— Sinclair. Stuart's Ad. Hep., p. 89. Besponsibility of master for any abuse of his authority at sea. Suit for personal damage by a passenger against the master. The Friends- Duncan. Stuart's Ad. Hep., p. 118. Suit for personal damage by a cabin passenger against the master for attempt- ing to exclude him from the cabin. The Toronto— Collinson. Stuart's Ad. Kep., p. 170. Suit for, by a mariner against the master, dismissed. The Coldstream- Hall. Stuart's Ad. Hep., p. 38G. Desuetude — Statute. Held, That the mode of abrogating or repealing statute law by desuetude or non-user, is unknown in the English law. The Mary Campbell — Simms. Stuart's Ad. Rep., p. 223. Discretion of Judges. What is understood by the term of " discretion " which courts are said to exercise. The Agnes — Taylor. Stuart's Ad. Rep., p. 57. Evidence — Admiralty Cases. Held, That in a suit for wages, service and good conduct are to be presumed until disproved. The Agnes — Taylor. Stuart's Ad. Rep., p. 56. As to the evidence of the master in suits with seamen or in a case of pilotage. The Sophia — Easton. Stunrt's Ad. Rep., p. 96. Held, That in a suit for personal damage brought by a passenger against the master of a vessel, the court will look to the education and condition in lifu of the persons who gave the evidence, not only as entitling them to full credit for veracity, but also to greater accuracy of observation, and a greater sense of the proprieties of life. The Toronto — Collinson. Stuart's Ad. Rep., p. 179. Held,*l. That an agreement varying the contract of wages in the ship's articles cannot be proved by parol evidence. 2. The testimony of the bail of the defendant was rejected, he being an •iifompetent witness. The Sophia — Weatherall. Stuart's Ad. Rep., p. 219. SHIPS AND SHIITINa. 875 upon him by the Vhe Coldstream— courts are said to stcd, he being an Held, That persons who aavo the control and direction of vessels, or who nre interested in clearing themselves ol" fault and throwin;^ it upon the other party, lire incompetent to give evidence. The Mary Cnmphdl — Sinwiis, Stuart's Ad. Rep., p. 224. Held, That more credit is to bo attached to the crew that are on the alert, than to the crow of the vessel that is placed at rest. The Dahlia — Grosaard. Stuart's Ad. Rep., p. 242. Held, That in cases of collision it is necessary to prove fault on the part of the persons on board of the vessel charj^od as the wrong doer, or fault of the |)ersons on board of that vessel and of those on board of the injured vessel. The Surah Ann — UocJcer. Stuart's Ad. Rep., p. 300. Held, That where a ship at anchor is run down by another vessel under sail tlie onus probandi lies with the vessel under sail to show that the collision was not occasioned by any error or default upon her part. The Miramichi — Grieve. Stuart's Ad. Rep., p. 240. Held, That where a vessel at anchor is run down by another, the onus lies on the latter to prove the collision arose from some cause which would excnnpt her from liability. The John Munn — Richardson. Stuart's Ad. Rep,, iu note, p. 266. Exception Declinatoibe — Admiralty. In a suit for an injury done on the waters of the St Lawrence near the city of Quebec, a declinatory exception in which it was averred that the locus iu quo of the pretended injury was within the boundary of the county of Quebec, and .solely cognizable in the Court of Queen's Bench for the district of Quebec, was dis- missed with costs, and a decree pronounced maintaining the ancient jurisdiction of the Admiralty over the river St. Lawrence. The Camillus—Baird. Stuart's Ad. Rep., p. 383. Parties sent out of Court, the fact in dispute being un fait maritime. 2'r6- vosti, No. 80. Fees. Held, 1. That all fees of office, properly so called, arc presumed to have a legitimate foundation in some act of a competent authority, originally assigning a fair quantum meruit for the particular service. 2. Where the fee is established by or under the authority of an act of Par- liament, the statute is conclusive as to the quantum meruit. 3. Where settled by the authority of the court, the subject is not concluded, thereby, but may try the reasonableness of the sum claimed as a quantum meruit, before a court of competent jurisdiction, and obtain the verdict of a jury thereon, when, and when alone, they become established fees. 4. Since the passing of the act of the Imperial Parliament, 1st Will. 4, c. 51, the establishment of fees in the Vice- Admiralty Court is exclusively in the King and Council ; and the table of fees established under the statute having been revoked without making another, it is not competent to the court to award a qmntiim meruit to its officers. The John and Mart/— Marshall. Stuart's Ad. Rep., p. 64. •il! i M •■oi 1 1! li. i „.w. , ., ■ ,i , i r 870 SHIPS AND SUIPPINO. h §M i 1 :( ID ' m^ 1 f 1 . 'i' I ! Held* 1. Thftt the order in Council of the 20th November, 1835, passed u< niptml tiio tiihio of fccH eHtablinhod uiidor the authority of the 2nd Will. 4, v. f)! — iHt, Hud tho effect of repealing the same ; 2nd. Did not give force or validity to the table of fees of 1801) ; 3rd. Nor did it authorise tho judge to grant feeii u u qutmtum meruit. 2. By tho ancient law of England, nono having any office concerning the adminiHtration of justice, ehall take any foe or reward of any subject for thf doing of his office. 3. All new offices erected with new fees, or old offices with now fees, arc within the statute 34 Edward I., for that is a tallage upon tho subject which cannot bo done without common assent by an act of parliament. 4. Officers concerned in the administration of justice, cannot take any more for doing their office than has been allowed to them by act of Parliament; Or by immemorial usage, referred to by Lord Coke in this instance ; as in so many others, considered as evidence of a statute or other legal beginning of the fee. 5. Those principles have been at all times recognised as fundamental prin- ciples of tho law and constitution of England. The London — Dodson. Stuart's Ad. Rep., p. 140. Freight. As to liability of ships for goods put on board lighters. See 1 L. C. Rep., p. 313. Held, That merchandise imported from abroad, is delivered to the consignee, when placed on the wharf, and is thereafter at his risk, provided notice of the arrival of his goods has been given to him. Stuart's Rep., p. 139. Rivers vs. Duncan. K. B. Q, 1819. Held, That where goods deliverable to " order or assigns " are landed from a vessel, after the expiration of tho delay allowed by law to the importer to land the same, tho captain is not liable for damages accruing thereto, after they have been placed upon the wharf. 2 L. C. Rep., p. 477, Scott vs. Hetcroff. S. C. Quebec ; Duval, Meredith, J. Held, That an affreighter cannot proceed by way of revendication^ as in the case of an unlawful detention against the master of a ship, when such affreighter and master cannot agree as to the quantity of goods shipped, and as to the bill of lading to be signed. Query, As to the responsibility of ships in relation to goods put on board lighters, to enable such ships to pass the shallows between Montreal and Quebec. 1 L. C. Rep., p. 313, Gordon et al. vs. Pollock. Q. B. Quebec; Stuart, C. J., Bowen, J. Held, That freight is the mother of wages ; and that if the ship becomes a total loss, the seamen cannot recover wages; and that consequently the liability of a third party to pay them their wages is at an end. 5 L. C. Rep., p. 425, Bemier vs. Langlois. S. 0. Quebec ; Bowen, C. J., Meredith, Morin, 'J. Held, That under the circumstances of this case, notwithstanding the respon- dent had not indorsed the bill of lading made out in his name, to the owner of the goods, the respondent was not liable for the freight of the goods. 7 L. G. m m t< if W*' ■ nstanoe ; as in so See 1 L. 0. Rep,, SHIPS AND SIIIPPINO. 877 Rep,, p. 367, Fowler, App., Meiklcham, Reap. In Appeal : Lafontaino, C. J., Aylwin, Duval, Caron, J. Held, Thuttho nnn-pcrforninnco of a stipulation in a charter party, which docn ' not amount to u condition precedent, cannot be pleaded U8 un answer or bar to un action tor the freight. Coltman vs. Jlamilfon, K. B. Q. 1819. Held, That u consignee who has received goods 8hip|ied to bo delivered on payment of freight, may bo sued for the amount of such freight, and can support un incidental cross demand for damages occasioned to such goods by the ma8ter'H negligence. OUlJidd vs. Uutton. K. B. Q. 1812. Held, That if on a charter party, in which a gross sum is stipulated for the freight, part of the cargo is delivered find accepted, an action will lie j)ro tanto for the freight, and damages for the non-delivery of the residue of the cargo cannot bo set off. They must be claimed by an incidental cross demand, or by s distinct action. Guays». Hunter. K. B. Q. 1810. Same case, Pyke's Rep., p. 3G. Harbor Master, Quebec. Held, That if any person having the charge or command of any ship or vessel in the harbor of Quebec, refuse or neglect to obey the directions of the harbor master, in respect to the berth to be taken by such ship or vessel, or in respect to the mooring or fastening, shifting or removing the same, and loss bo thereby incurred, then such ship or vessel shall bear the loss. 4 L. C. Rep., p. 343, New York Packet — Marshead, Vice- Admiralty Court; L. C. Black, J. Held, 1. That the rules of the Trinity House of Quebec empower the harbor master to station all ships or vessels which come to the harbor of Quebec, or haul into any of the wharves within the limits of the same ; and to regulate the mooring and fastening and shifting and removal of such ships and vessels ; and to determine how far, and in what instances, it is the duty of masters and other persons having charge of such ships or vessels, to accommodate each other in their respective situations, and to determiuti all disputes which may arise oon- cerning the premises. 2. Owner of vessel contravening harbor master's ordof condemned in dam- ages for a collision. Hew York Packet — Marshead. Stuart's Ad. Rep., p. 325. Judgment. Held, That the merits of a judgment can never be overhauled in an original suit, either at law or in equity. Till the judgment is set aside or reversed, it is conclusive, as to the subject matter of it, to all intents and purposes. The Phoebe — Raltray. Stuart's Ad. Rep., p. 63, in notes. Justices op the Peace. Held, 1. That although justices of the peace, exercising summary jurisdic- tion, be the sole judges of the weight of evidence given before them, and no other of the Queen's courts will examine whether they have formed the right conclusion from it or not ; yet other courts may and ought to examine whether the premises stated by the justice are such as will warrant their coudusioQ in point of law. -I 378 SHIPS AND SniPPINQ. m • I i( 2. Justicea of the peace cannot give themselves jurisdiction in a particular case, by finding that as a fact which is not a fact. The Scotia — Risk. Stuart's Ad. Rep., p. 160. Where a justice of the peace, acting under the authority of the Merchant Seamen's Act, (5th & 6th Will, 4, c. 19, s. 17) had awarded wages to a seaman, on the ground that a change of owners had the efiFect of discharging the seaman from his contract, this court, considering that the proceedings had before the justice of the peace did not preclude it from again entering into the inquiry, Held, 1. That the contract of the seaman was a subsisting contract with the ship, notwithstanding the sale of her. 2. In no form can this court be made auxiliary to the justice's court, still less be required to adopt, without examination as legal premises on one demand, the premises which the justice's court may have adopted as legal premises on another demand. 3. In a suit for the recovery of wages under the sum of fifty pounds, justices acting under the authority of the Merchant Shipping Act, 1854, (17th & 18th Vict., c. 104, ss. 188 & 189) may refer the case to be adjudge! by this Court. The Varuna — Davies. Stuait's Ad. Rep., p. 387. Lien. Held, That persons furnishing supplies to ships in this country, technically called material men, have no lien upon ships for such supplies ; and that the Vice-Admiralty Court of Lower Canada has no jurisdiction to enforce their claims. 3 Rev. de Jur., p, 436, The:Mary Jane — Trescowthick. Vice- Admiralty Court, L. C. ; Black, J. Held, That salvors have a right to retain the goods saved until the amount of the salvage be adjusted and tendered to them. The Royal William — Fennel. Stuart's Ad. Rep., p. 107. Held, That in the civil and maritime law of England, no hypothecary lien exists, without actual possession, for work done or supplies furnished in England for ships owned there. The Mary Jane — Trescowthick. Stuart's Ad. Rep., p. 267. Held, 1. That a maritime lien does not include or require possession. 2. It is defined by Lord Tenderden to mean a claim or privilege upon a thing to be carried into effect by legal process. 3. Where reasonable diligence is used, and the proceedings are in- good faith, the lien may be enforced into whosoever possession the thing may come. The Hercyna — O'Brien, in notes. Stuart's Ad. Rep., p. 276. Loss BY lOB. Held, That in a charter party " le$ avaries de la mer et de la saison " are excepted fVom a general covenant of responsibility for the chartered vessel, and that the charterer is not liable for her loss by ice. Fougire vs. Boucher. K. B. Q. 1821. Mariners. Held, 1. That if a mariner be disabled in the performance of his duty, he is SHIPS AND SmPPINO. 379 of his duty, lie is to be cured at the expense of the ship ; but if the injury which he sustained be produced by drunkenness on his part, he must bear liimself the consequences of his own misconduct. 2. Abandoning seamen, disabled in the service of the ship, without providing for their support and cure, is equivalent to wrongful discharge. The Atlantio— Uardenhrook. Stuart's Ad. Rep., p. 125. Held, That the seaman owes obedience to the master, which may be enforced by just and moderate correction ; but the master, on his part, owes to the sea- man, besides protection, a reasonable and direct care of his health. The Re- covery — Simkin. Stuart's Ad. Rep., p. 130. Held, 1. That where a seaman can safely proceed on his voyage, he is not entitled to his discharge by reason of a temporary illness. 2. Mere sickness does not determine the contract of hiring between him and the master. The Tweed — Robertson. Stuart's Ad. Rep., p. 132. Held, That a seaman going into hospital for a small hurt not received in the performance of his duty, is not entitled to wages after leaving the ship. Cap- tain Ross — Marton. Stuart's Ad. Rep., p. 216. Held, 1 . That mariners, in the view of the admiralty law, are inopes consiliif and are under the special protection of the court. 2. The jealousy and vigilance and parental care of the Admiralty, in respect to hard dealings, under forbidden aspects, with the wages of mariners. 3. The Court of Admiralty has power to moderate or supersede agreements made under the pressure of necessity, arising out of the situation of the parties. The Jane — Custance. Stuart's Ad. Rep., p. 258. Held, 1. That while acting in the line of their strict duty, they cannot entitle themselves to salvage. 2. For services beyond the line of their appropriate duty, or under circum- stances to which those duties do not attach, they may claim as salvors. The Robert and Annie — Richmond. Stuart's Ad. Rep., p. 253. Held, 1. That seamen are regarded as essentially under tutelage, and every dealing with them personally by the adverse party, in respect to their suits, is scrutinised by the court with great distrust. 2. Negotiations with them, even before suit is brought, is more to the satisfac- tion of the court when entrusted to their proctors. 3. A seaman is entitled to his costs as well as his wages ; and a settlement after suit brought, obliging him to pay his own costs, is in fact deducting so much from his wages. The Thetis — Watkinson. Stuart's Ad. Rep., p. 365. Held, That articles not signed by the master, as required by the General Merchant Seamen's Act, 7th and 8th Vict., c. 112, s. 2, cannot be enforced. The Lady Seaton — Spencer. Stuart's Ad. Rep., p. 260. Held, That promise made by the master, at an intermediate port on the voyage, to give an additional sum, over and above the wages stipulated in the articles, is void for want gf consideration. The Lockwoods — Lawton. Stuart's Ad. Rep., p. 723. Held, That a change of owners, by the sale of the ship at a British port, does not determine a subsisting contract of the seamen, and entitle them to wages 380 SHIPS AND SHIPPINa. I r i before the termination of the voyage. The Scotia — Risk. Stuart's Ad. Rep,. p. 160. Held, That where a voyage is broken up by consent, and the seamen continue, under new articles, on another voyage, they cannot claim wages under the first articles, subsequent to the breaking up of the voyage. The Sophia — Weather- all Stuart's Ad. Rep., p. 219. Whether, when a merchant ship is abandoned at sea sine spe revertendi in consequence of damage received and the state of the elements, such aban- donment taking place bond fide and by order of the master, for the purpose of saving life, the contract entered into by the mariners is by such circumstances entirely put an end to ; or whether it is merely interrupted, and capable, by the occurrence of any and what circumstances, of being again called into force. Florence in notes. Stuart's Ad. Rep., p. 254. Where seamen, shipped for " a voyage from the port of Liverpool to Con- " stantinople, thence (if required) to any port or places in the Mediterranean or " Black Seas, or wherever freight may offer, with liberty to call at a port for " orders, and until her return to a final port of discharge in the United Kingdom, " or for a term not to exceed twelve months," and the ship went to Constantinople in prosecution of the contemplated voyage, and then returned to Malta, whence, instead of going to a final port of destination in the United Kingdom, she came direct to Quebec in search of freight, which she had failed to obtain at the port« at which she had previously been : Held, That coming to Quebec could not be considered a prosecution of the voyage, under the 94th section of the Mercantile Marine Act of 1850, re-enacted by the 190th section of the Merchant Shipping Act, 1854. The Varuna— Davies. Stuart's Ad. Rep., p. 357. Master, Power op. As to the authority of the master of a merchantman to inflict punishment on a passenger who refuses to submit to the discipline of the ship. The Friendi — Duncan. Stuart's Ad. Rep., p. 118. 1. Assault and battery and aggressive treatment by the master of a ship upon a cabin passenger. Charge sustained. 2. No words or provocation whatever will justify an assault. 3. If provoking language be given, without reasonable cause, and the party offended be tempted to strike the other, and an action is brought, the Court will be bound to consider the provocation in assessing the damages. 4. To constitute such an assault as will justify moderate and reasonable vio- lence in self-defence, there must be an attempt or offer, with force and violence, to do a corporal hurt to another.— TAe Toronto — Collinson. Stuart's Ad. Rep., p. 170. Held, In an action against the captain of a ship chartered by the East India Company, for an assault and false imprisonment, a justification on the ground of mutinous, disobedient, and disorderly behavior was sustained. The CoU- ttream — Hall. Stuart's Ad. Rep., p. 3. Held, 1. That the power of the master to displace any of the officers of SHIPS AND SniPPINO. 381 the ship is undoubted ; but he must be prepared to show that he had lawful oause for so doing. 2. The party discharged from his office is not bound to remain with the ship after her arrival at the first port of discharge. The Sarah — Sinclair. Stuart's Ad. Rep., p. 87. Held, That the master will be admitted as a witness in a case of pilotage. The Sophia — Easton. Stuart's Ad. Rep., p. 96. Held, That upon the death of the master during the voyage, the mate sue* oeeds him as hceres necessariua. The Brunswick — Tully. Stuart's Ad. Rep., p. 139. Held, 1. That the possession of a ship will be awarded to the master ap- pointed by the owner, to the exclusion of the master named by the shippers of the cargo. 2. By the 17th and 18th Vict., c. 104, s. 240, power is given to any court having admiralty jurisdiction in any of her Majesty's dominions to remove the master of any ship, being within the jurisdiction of such court, and to appoint a new master in his stead, in certain cases. The Mary and Dorothy — Teasdale. Stuart's Ad. Rep., p. 187. Held, That the master of a merchant vessel may apply personal chastisement to the crew whilst at sea, the master thereby assuming to himself the responsi- bility which belongs to the punishment being necessary for the due maintenance of subordination and discipline, and that it was applied with becoming mode- ratio*. The Coldstream — Hall. Stuart's Ad. Rep., p. 386. Held, That a change of master, not endorsed on the ship's register, and no bond given by the new master, according to the 26th Geo. 3, c. 60, s. 18, and 27th Geo. 3, c. 19, s. 7, operates a forfeiture. Stuart's Rep., p. 80, Percival et al. vs. Schooner Harrower. K. B. Q. 1816. ct punishment on of the officers of Mate. Held, 1. That the mate of a vessel is chargeable for the value of articles lost by his inattention and carelessness, and the amount may be deducted from his wages. 2. A chief mate suing for wages in the Court of Admiralty is bou;id to show that he has discharged the duties of that situation with fidelity to his employers. 3. Amongst the most important of these duties is to preserve the cargo. The Papineau — Maxwell. Stuart's Ad. Rep., p. 94. Held, That where a second mate is raised to the rank of a chief mate by the master during the voyage, he may be reduced to his old rank by the master for incompetency ; and thereupon the original contract will revive. The Lydia —Brunton. Stuart's Ad. Rep., p. 136. Held, That the death of the master, and substitution of the mate in his place, does not operate as a discharge of the seamen. By the maritime law, upon the death of the master during the voyage, the mate Bucoeeds as hares necetsarius. — The Brunswick — Tully. Stuart's Ad. Rep., p. 139. I , : 382 SHIPS AND SHIPPING. Merchant Shipping Act, 1854. iKja Rule as to ships meeting with each other, in 296th section, cited. The L — Eilcrtscn. Stuart's Ad, Rep., p. 340. Construction of the act, as to agreements to be made with seamen. The Varuna — Davies. Stuart's Ad. Rep., p. 367. Option. Held, That where a party had his option to proceed either before the Trinity House, or before the Admiralty, and made his option of the former, by that he must abide as well in respect of the executici of the judgment as in the The Phoebe — Raltruy. Stuart's Ad. Rep., p. 69. obtaiaing of it. Passenger. Held, 1. That the relation of master and passenger produces certain duties of protection by the master analogous to the powers which the law vests in him as to all the persons on board his ship, and wilful violation of which duties to tlie personal injury of the passenger entitles the latter to a remedy in the Admiraltv if arising on the high seas. 2. Unless in cases of necessity the master cannot compel a passenger to kci p watch. . 3. Master may restrain a passenger by force, but the cause must be urgent and the manner reasonable and moderate. The Friends — Duncan. Stuart's Ad. Rep., p. 118. Held, 1. That the authority of the master will always be fully supported l>y the courts so long as it is exercised within its jurisdiction. 2. Damages awarded against a mnstcr of a vessel for having, in a moment ut ill-humour, attempted to deprive a cabin passenger of his right to the use dt the quarter deck and cabin, and to separate him I'rom the society of his f'elluw passengers. The Toronto — ColUnson. Stuart's Ad. Rep., p. 179. Penalty. Held, That if any act be prohibited under a penalty, a contract to do it is void. The Lady Seaton — Spencer. Stuart's Ad. Rep., p. 263. Pilots. Held, 1. That a pilot is a mariner, and as such may sue for his pilotage in the Vice- Admiralty Court. See 2nd Will. 4, c. 51, sect. 4. 2. A pilot who has the steering of a ship is liable to an action for an injury done by his personal misconduct, although a superior officer be on board. Th« Sophia — Easton. 3. Damage occasioned to the ship by the misconduct of the pilot may be get off against his claim for pilotage. Stuart's Ad. Rep., p. 96. Held, That in cases of pilotage where there has been a previous judgment of the Trinity House upon the same cause of demand, the court has no jurisdiction. The Phmhe — Raltray. Stuart's Ad. Rep., p. 59. SHIPS AND SHIPPING. 383 passenger to kci'i) ally supported hy ictto doit is void. lis pilotage in the TTeld, 1. That persons acting as pilots arc not to be remunerated as salvort". 2. Pilots may become entitled to extra pilotage, in the nature of salvage, for extraordinary services rendered by them. 3. The jurisdiction of the court is not ousted in relation to claims of this nature by the provisional statute 45th Geo. ,3, c. 12, sect. 12. The Advcnturev —Peverhj. Stuart's Ad. Rep., p. 101. Held, That owners of vessels are not exempt from their legal responsibility thou"h their vessel was under the care and management of a pilot. The Cum- berland — TicJde. Stuart's Ad. Hep., p. 75. Held, 1. That it is the exclusive duty of pilot in charge to direct the time and manner of bringing a vessel to anchor. 2. Pilot having control of a ship is not a competent witness for such ship without a release. 3. Ship held liable for collision notwithstanding there being a pilot on board. The Lord John Russell — Young. Stuart's Ad.llep., p. 190. Held, That having a pilot on board and acting iu conformity with his direc- tions, does not discharge the responsibility of owner. The Creole. Stuart's Ad. Hep., p. 199. PiEOT Acts. The English cases by which the owners are exempted from responsibility where the fault is solely and exclusively that of the pilot, nor shared in by the master or crew, are based upon the special provision of the English Pilotage Acts. The Cumberland — Tickle, in note. Stuart's Ad. Hep., p. 81. Construction and validity of Pilot Acts. Ih,, pp. 88, 199i Pilot — Damage. Held, 1. In an action against the master of an ocean steamer, that a branch pilot in charge of the steamer is not a competent witness for the defendant, the action being for damage caused by the steamer striking against a wharf and injur- ing it. 2. That the damage in question was caused by the negligence of the respondent and of his crew. 3. That the master in general under the maritime law is the agent, institor et propose of the owners, and is by the 20th section of the 18th Vict., c. 143, together with all other ship masters, expressly declared to be liable to the Har- bor Commissioners of Montreal, Appellants, for injury done to wharves under their charge. 4. That the wharf not being in good order, the rule for two-thirds new for old may be regarded as a guide to the discretion of the court in awarding damages. 10 L. C. Rep., p. 259, The Harbor Commissioners of Montreal, App., Grange, Resp. The Harbor Commissioners of Montreal vs. McMastcr. In Appeal ; Lafontaine, C. J., Aylwin, Duval, Mondelet, J. Held, 1. That the vessel is not liable for a collision occasioned by the mis- management of a pilot taken under the requirements of the law, enforced by a penalty. i I 1 I I ;(. if* 384 SHIPS AND SHIPPINO. 2. That the mode, time, and place of bringing a vessel to anchor is within the peculiar province of the pilot in charge. 3. That when a vessel is lying at anchor and another vessel is placed volun- tarily, by those in charge, in such a position as that danger will happen if some event, not improbable, should arise, those in charge of the latter vessel must be answerable. 4. That it is the practice of the Admiralty Court not to give costs on either side when the damage has been found to proceed from the fault of the pilot alone. 11 L. C. Rep., p. 342, The Lotus— Clark. Vice- Admiralty Court L.C. ; Black, J. Pilotage — Lien. Held, That a lien for pilotage attaches to the vessel, although she may have changed owners between the performance of the pilotage, and the institution of the action. 6 L. C. Rep., pit 493, The Premier — Heard. Vice-Admiraltj Court L. C. ; Black, J. Held, That the Court of Vice- Admiralty has no jurisdiction in an action by a pilot for moving a vessel from one part of the harbor of Quebec to another. 7 L. C. Rep., p. 427, Vice- Admiralty Court, L. C. ; Black, J. Pilot— Pension. Held, That a pension granted under the 45th Geo. 3, c. 12, sect. 11, to decayed pilots and to the widows and children of pilots, cannot be seized or attached. 3 L. C. Rep., p. 420, Lelievre vs. Baillargeon, and The Trinitjj House, T. S. C.t!. Quebec; Duval, J. Held, 1. That a pilot in charge of a vessel is entitled to remuneration from the owner (in addition to the usual pilotage) for loss of time and for services rendered in saving some of the spars and rigging of such vessel carried away, owing to the defective quality of the materials. 2. That where the owner obtains indirectly from the underwriters the amount of such claim of the pilot, the pilot may recover from such owner in an action for " work and labor and loss of time," without a count in the declaration for money had and received. 8 L. C. Rep., p. 229, Russell vs. Parker. S. C. Quebec; Chabot, J. Pilot — Continued. Held, That a master of a ship is not personally liable for damage done to plaintiflF's wharf by his ship whilst sailing out of the harbor of Quebec with a branch pilot on board having the management of the vessel, in obedience to the 12th Vict., c. 114, sect. 53. 8 L. C. Rep., p. 193, Lampson vs. Smith. 8. C. Quebec ; Meredith, J. Held, 1. That the provincial statute 12th Vict., c. 114, renders it compulsory to take pilots for vessels navigating the St. Lawrence from Quebec to Montreal. 2. That in consequence of its being compulsory, the master is not liable for damage done by the vessel to a wharf when in charge of a pilot. SHIPS AND SHIPPING. 885 1 or is within the 3. That the fact of striking the wharf under the oiroomstancesof this case was prima facie evidence that it was occasioned by the fault of the pilot. 9 L. C. Hep., p. 3, The Harbor Commissioners of Montreal vs. Grange. S, C. Mod- treal ; Smith, J. Held, Judgment and ruling supra confirmed in Appeal : Also, That the presence of the pilot on board in charge of the vessel, and the consequent release of the mas- ter from responsibility, need not be specially pleaded but may be proved under a defense en fait. 9 L. C. Rep., p. 160, Lampson, App., Smith, Resp. In Ap- peal : Lafontaine; C. J., Aylwin, Duval, Caron, J. Pleadinq in Yioe-Admibaltt, L. 0. Libel. Held, That all that is required in a libel for seamen's wages is to state the Mring, rate of wages, performance of the service, determination of the contract, and the refusal of payment. The Newham — Bohson. Stuart's Ad. Rep., p. 71. Held, 1. That the allegations of a party must be such as to apprise his adversary of the nature of the evidence to be adduced in support of them. 2. Less strictness is required in pleading in admiralty than in other courts. 3. All the essential particulars of the defence should be distinctly set forth in the pleadings. 4. The evidence must be confined to the matters put in issue, and the decree must follow the allegations and the proofs. 5. The defendant not pleading a judgment rendered in another court, waives such ground of defence. 6. Where the misconduct of a mariner is relied on as a ground of defence in an action for wages, it should be specifically put in issue. The Agnes — Taylor. Stuart's Ad. Rep., p. 56. Held, That a demand for watch, &c., taken by the master from the seaman's chest may be oined tothe demand for wages. The Sarah — Sinclair. Stuart's Ad. Rep., p. 87. Held, That in a cause of damage, in which the proceedings were by plea and proof, acts appearing on the face of the libel to have been committed at a place which is not within the jurisdiction of the court will be rejected as inadmissible. The Friends — Duncan. Stuart's Ad. Rep., p. 112. Fraotick in Vice-Admiralty, L. C. Held, That the practice to be observed in suits and proceedings in the courts of Vice- Admiralty abroad is governed by certain rules and regulations established by an order in council under the 2nd Will. 4, c. 51. Stuart's Ad. Rep., p. 1 to p. 52. Held, That the court will require the libel to be produced at a short day, if the late period of the season or other cause renders it necessary. The Newham — Robson. Stuart's Ad. Rep., p. 70. Held, That when the judge has any doubts in regard to the manner of navigating, ship's course, position, and situation, he will call for the assistance of Z 386 SHIPS AND SHIPPINO. ' 1 ' 1 1 1 1 j '' ii I ■ t t ( 1 1 ;: -1 ' '' I persons conversant in nautical affairs to explain. The Cumberland — Tickk. Stuart's Ad. Bep., p. 78. Held, That probatory terms are in general peremptory, but may be restricted for uuflSciont cause. The Adventure — Peverlei/, Stuart's Ad. Rep., p. 99. Held, An amendment in the warrant of attachment not allowed for an alleged error not apparent in the acts and proceedings in the suit. The Aid — Nuthall, Stuart's Ad. Rep., p. 210. Suppletory oath ordered in a suit for subtraction of wages. The Josepha— Mclntyre. — Stuart's Ad. Rep., p. 612. • Held, That where the court has clearly no jurisdiction, it will prohibit itself. The Mary Jane — Trescowthick. Stuart's Ad. Rep., p, 267. Held, That in salvage cases the protest made by the master containing a nar- rative of facts when they are fresh in his memory, should be produced. The Electric — Molton. Stuart's Ad. Rep., p. 333. Held, That in courts of civil law, the parties themselves have strictly no authority over the cause after their regular appearance by an attorney or proctor. The Thetu — Watkinaon. Stuart's Ad. Rep., p, 365. Held, That the attorney or proctor is so far regarded as the dominiu litis that no proceeding can be taken except by him, or by his written consent, until a final decree or revocation of his authority. — The Thetit — Watkinson. Stuart's Ad. Rep., p. 365. Proctor. Held, That the settlement without the concurrence or knowledge of the promo- ter's proctor, does not bar the claim for costs, and the court will enquire whether the arrangement was, or was not, reasonable and just, and relieve the proctor if it were not. The Thetis — Watkinson. Stuart's Ad. Rep., p. 363. Proxies. Held, That in order to prevent proctors from proceeding in causes on in- structions from parties not having a legal right to prosecute a cause, the court may require the production of proxies. The Dumfriesshire — Gowan. Stuart's Ad. Rep., p. 245. Registry. Held, That a certificate of registry with an indorsement to another person, which refers to a bill of sale of the vessel so registered, is no evidence of property in the indorsee without the bill of sale. Prevost vs. Faribault. K. B. Q. 1818. Registry — Title. Held, That an auctioneer who sells a ship without naming his principal, can- not maintain an action for the sum offered by the last bidder, without a tender of a valid bill of sale. Bums vs. Hart. K. B. Q. 1810. Same case, Pyke's Rep., p. 63. Held, That a bill of sale of a ship in which the register is inserted but not the indorsements on the register, is nevertheless a bill of sale under the 26th Geo. 3, c. 60, sect. 17. Meyrand vs. Bovdreau. K. B. Q. 1812. SHIPS AND SUIPPINQ. 387 erland — Tickh. Hold, That the register must be transcribed or inserted in a bill of sale of a ship, unless she be under circumstances which constitute an exception to tho general provision of the registry acts, and that such circumstances must be Bpccially pleaded. Peltier vs. Blagdon, K. B. Q. 1813. Held, That in an action for goods sold to two persons as joint owners of a ship, when it appeared that one had been owner and ordered the goods, and that he afterwards sold the ship to the other, the new owner was not liable for the goods, and that the plaintiff could not recover, having declared upon a joint con- tract of which there waa no evidence. Bay vs. Blagdon et al. K. B. Q. 1817. Held, That the defendants, who were tho registered owners of a steamer ply- ing on the St. Lawrence, are not liable for firewood supplied by plaintiff to the steamer ; the credit being shown to have been given to a person running the steamer on his own account. 9 L. C. Rep., p. 225, Morgan vs. Forsyth et al. S. C. Montreal ; Smith, J. Same case, 3 Jurist, p. 98. Sale of Ship. Held, That the sale of ship has not the effect of dischai^ing seamen from their engagement. The Scotia — Risk. Stuart's Ad. Bep., p. 160. Salvage. Held, That the amount of an undertaking to pay salvage in the Court of Ad- miralty of another British province may be recovered in Canada. Moore va. Muir. K. B. Q. 1818. Held, 1. A vessel struck on Bed Island shoal in the River St. Lawrence in the end of November, 1853, and being abandoned by the crew was subsequently caried off by the ebb tide. She was followed by four young men, who with great perseverance, skill and courage, and with great peril of their lives, forced their boat through the ice, got on board of the vessel and brought her back to tho bay of Tadousac where she remained in safety during the winter and pro- ceeded on her voyage the following spring. On a value of £3000 currency the court awarded £500 currency and costs. 2. Rule laid down by the court respecting the production of protests, viz., that in all oases of salvage they ought to be produced. 5 L. C. Rep., p. 53, The Electric — Molton. Vice-Admiralty Court L. C. ; Black, J. The Palmyra sunk in the river St. Lawrence, was raised and saved by tho very ingenious, novel, and excellent machinery on board the Dingo, and the great skill and experience of her master and crew, most of whom were picked men and excellent mechanics : Held, That £1,500 sterling was a reasonable salvage. Held, That a bond for salvage in a Court of Admiralty in Nova Scotia can be recovered in Canada. Moore vs. Muir. K. B. Q. 1818. Held, Upon a value of £6,700 the sum of £400 was awarded as salvage to a schooner for towing a vessel disabled in her masts and rigging in the lower part of the St. Lawrence to a place of safety, the mere quantum of service performed ' t 888 SHIPS AND SHIPPING. not being the sole criterion for a^vage remuneration. 12 L. 0. Rep., p. 309 The Royal Middy — Daviton. Vice-Admiralty Court, L. 0. ; Black, J. Held, That persons acting as pilots are not to be remunerated as salvors. Held, That under extraordinary circumstances of peril or exertion, pilots may become entitled to an extra pilotage, as for a service in the nature of a salvage service such extra pilotage decreed to a branch pilot for the river St. Lawrence for services by him rendered to a vessel which was stranded at Millo Vaches, ia the river St Lawrence, on her vo.yage to Quebec. — The Adventure — Peverley. Stuart's Ad. Rep., p. 101. Held, 1. That in a case of wreck in the river St. Lawrence (Rimouski), the court haa jurisdiction of salvage. 2. In settling the question of salvage the value of the property and the nature of the salvage service are both to be considered. 3. The circumstances of the case examined and the service declared to be a sal- vage service, and not a mere hcatio operis, though an agreement upon land was had between the parties in relation to such service. 4. Salvors have a right to retain the goods saved until the amount of the salvage be adjusted and tendered to them. — The Royal William — Fennel. — Stuart's Ad. Rep., p. 111. Held, That compensation will be decreed U) seamen out of the proceeds of the materials saved from the wreck by their exertions. The Sillery — Hunter. Stuart's Ad. Rep., p. 182. Held, That seamen while acting in the line of their strict duty, cannot entitle themselves to salvage, but extraordinary events may occur in which their con- nexion with the ship may be dissolved de facto or by operation of law, or they may exceed their proper duty, in which cases they may be permitted to claun as salvors. The Robert and Anne — Richmond. — Stuart's Ad. Rep., p. 253. Salvage allowed by Judge Kerr to the chief and second mates and carpenters, for their meritorious services, out of the proceeds arising from the sale of the articles saved from the wreck. The Flora — Wilson. — Stuart's Ad. Rep., p. 255. In a case of very meritorious service rendered by two seamen and two young men to a vessel in the river St. Lawrence, the court awarded one-sixth part of the property saved, and also their costs and expenses. The Electric — Molton. —Stuart's Ad. Rep., p. 330. Seizure of Rbqistebed Vessels. Held, 1. That in order to render valid the seizure and sale of a registered vessel, the formalities pointed out by the act 8th Vict., o. 9, must be complied with. 2. That the sale of the schooner " Faton " by the name of " John Faton " is bad, and inoperative to pass the title to the purchaser. Quid, If the title of the purchaser were duly registered at the Custom house ? 3 L. C. Rep., p. 471, Ctuack vs. Faton, and Robert, 0pp. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That an advancer under the act to encourage ship building, 19th Vict., c. 60, to whom the register of the vessel has been granted, is not, therefore, i SHIPS AND SHIPPINQ. 889 nd the nature of John Paton " is necessarily to bo doomed the owner, so as to be4|bblo for wages of seamen engaged in navigating it, or of mechanics employed in completing or repairing tho vossol. 11 L. 0. Rep., p. 150, Dickey et al., App., TerriauU, Resp. In Appeal : La< fontaino, 0. J., Duval, Meredith, Mondelet, J. ; Aylwin, J. dissenting. See Ships and Shipping, Wages. Statutb. Held, That tho repeal of a repealing statute has generally the effect of reviving the original statute. The London — Dodson. Stuart's Ad. Rep., p. 151. Held, That a statute does not lose its force by desuetude or non-user. The Mary CampheU-^Simont. Stuart's Ad. Rep., p. 223. Trinity House. See Collision, Harbor Master. By-laws of Trinity House not abrogated nor repealed by desuetude. The Mary Campbell — Simons, Stuart's Ad. Rep., p. 223. By-laws construed strictly in favor of their application. — lb., p. 242. Voyage. Where a seaman shipped for a " voyage from London to Sunderland, thence " to Rio Janeiro, and any port in South or North America, West Indies, Capo " of Good Hope, Indian or China Seas, Australia, and back to a final port of " discharge in the United Kingdom, or continent of Europe between the Elbe " and Brest, voyage not to exceed twelve months," and the ship went from Lon- don to Sunderland, thence to Rio Janeiro, thence to tho Cape of Qood Hope, thence to St. Helena, and the Island of Ascension, and thence to Quebec : Held, 1. That the articles were bad as being vague and uncertain. 2. That the voyage as actually performed was not a prosecution of the voyage described in the articles, and amounted in effect to a deviation under the Mer- chant Shipping Act of 1854, sect. 190. 8 L. C. Rep., p. 293, The Prince Ed- ward — Diaper. Vice-Admiralty Court, L. C. ; Stuart, A., J. Where a voyage is described in the shipping articles as one to North and South America : Held, That such description is too indefinite to set forth " the nature of the "voyage " as required in the Merchant Shipping Act of 1854. 10 L. C. Rep. p. 356, The Marathon — Horat. Vice-Admiralty Court, L. C. ; Black, J. Held, That a description of a voyage in the shipping articles as one to the United States is a good description, and that more general terms following are to be construed as subordinate to the principal voyage in the preceding terms, and restricted to a reasonable distance from the United States, under the words "nature of the voyage," in the Merchant Shipping Act of 1854. 10 L. 0. Rep., p. 359, The ElUrsUy — Vickerman. Vice- Admiralty Court, L. C. ; Black, J. Held, That in interpreting the act of parliament, the words " nature of the voyage" must have such a rational construction as to answer the main and leading i ' 890 snips AND SniPPINQ. I ' I ! I i I I * purposo for which they wore frmnod, namely, to give the mariner a fair intima- tion of the nature of the Horvico in which ho was about to engage himself whoD he signed the ship's articles. The Varuna — Daviet. Stuart's Ad. Rep., p. 361, Waobs. Hold, That an action upon a note for £20 to a seaman for wages for the run, payable on the arrival of the ship in England, cannot bo maintained if it appear that the ship was lost on its voyage home. Wood vs. Higginbotham. K. B. Q. 1813. Held, That a supercargo is entitled to a quantum meruit if there be no spooi- fio agreement to pay him wages, or to allow him a commission on the value of the cargoes exported and imported. Tugo vs. Jonet, K. B. Q. 1820. In an action by a seaman for wages from the port of London to Quebec, the master set up an agreement that plaintiff should prooeodonavoyage from London to Quebec and Montreal, and " back to a port of discharge in Great Britain:" Held, That the agreement was null because it had not been signed by the master as required by the Merchant Seaman's Act. Judgment for plaintiff. 3 Rev. de Jur., p. 420, The Lady Seaton — Spencer. Vice- Admiralty Court, L.C. ; Black, J. Held, That seamen brought to Quebec under articles of engagement exprcRsed in the following terms, are entitled to, and can sue for, their wages, and cannot be compelled to return in the ship to a final port of discharge in the United King- dom: " The several persons whose names are herein subscribed, hereby agree to '' serve on board the said ship in the several capacities expressed against their " respective names, on a voyage from the port of Liverpool to Constantinople, " thence (if required) to any port and place in the Mediterranean and Black seas, " or wherever freight may offer, with liberty to call at a port for orders, and until " her return to a final port in the United Kingdom, or for a term not to exceed " twelve months. The Varuna — Davies. 5 L. 0. Rep., p. 312, Vice-Admiralty Court, L. C. ; Black, J. Held, That under the provisions of the Merchant Shipping Act of 1854, a sea- man cannot institute a suit in the Superior Court for the recovery of his wages, notwithstanding the action was commenced by capias. 6 L. C. Rep., p. 460, Smith vs. Wright. 8. C. Quebec ; Bowen, C. J., Meredith, Morin, J. Held, That under the Merchant Shipping Act of 1854, a seaman who has contracted and signed articles for a voyage to British North America and back to a final port of discharge in the United Kingdom, is not entitled to recover wages here, on the ground of apprehension of danger to life in consequence of the unseaworthiness of the vessel. 8 L. C. Rep., p. 99, The Pilot — Collint, Vice- Admiralty Court, L. C. ; Black, J. Held, 1. That a title to a steamer derived from a sale of the vessel and tackle under a warrant of distress issued by justices of the peace, under the 6th Will. 4, c. 28, for the recovery of seamen's wages, is insufficient to maintain an action en revendication, the steamer not being shown to belong to, or to be registered in Lower Canada. 'it ■ If MM^ ja^ snips AND SniPPINQ. 891 2. That tho ntatutc cannot bo extended to vcssoU not belonging to, or regis- tercd in Lower Canada. 3. That whore tho Htntnte authoriaos tho sale of a verael or tho taoklo and apparol thereof, a warrant for tho sale of tho vobsoI and of the taolclo and apparel thereof, is illegal. 8 L. C. Rop., p. 26G, Kirr vs. Oildertleeve. S. C. Montreal j Badgley, J. Same ease, 3 JuriMt, p. 304. Held, That an agroomc t made subHo C. Quebec ; Duval, Meredith, Caron, J. So in Butler vs. McDougal. 2 Rev. de Jur., p. 70. In Appeal : Reid, C. J,, Smith, Delery, Stuart, Heney, Cochran, J. Held, That the statute of limitations does not apply to an action for money lent, between parties not traders. 5 Jurist, p. 26, Asselin vs. Mongeau. C. C. Montreal ; Smith, J. Held, That the statute applies to an action for goods sold and delivered between traders. 6 Jurist, p. 26, Molson et al. vs. Wahnsleg. S. C. Montreal; Smith, J. Held, That partial payments upon an open account interrupt the prescription under the statute of limitations. 5 Jurist, p. 168, Benjamin et al. vs. Duches- nay et vir. C. C. Montreal; Monk, J. Repeal of. Held, That an act of the legislature generally, if it be temporary has no more than a temporary effect, yet that a temporary act may repeal a permanent statute, if the intention of the legislature to effect such a repeal be manifest. Stuart's Rep., p. 311, Chasseur vs. Eamel. K. B. Q. 1828. See Action Revbndioation. See Evidence, Commencement de Preuve. See Presceiption. See Railway Company, Limitation. Repeal of by implication. See Water Beaches. Statute (qui tam actions). See Penal Statute, Penalty. " Retroaction of. See Seigniorial Rights, Retrait. " Repeal of. See Bills and Notes, Prescription. " Penal. See Certiorari, Licenses. " Error in. See 2 L. C. Rep., p. 25. Hi MMi ill t STREET. ^lee Corporation, Roads. " " Streets, Obstruction to. SUCCESSION. — SURETY. 397 I vs. Wilson. K. SUBROGATION. ^ee GoNTBACT, Subrogation. SUBSTITUTION. See Cn&ATOB to substitution. SUCCESSION. Benunoiation. Held, That in tbe case submitted, the presumptive heiress, who had collected moneys due to the deceased, and kept in her hands moneys left by him, could not sdPterwards legally renounce to his succession. 6 L. C. Bep., p. 28, Orr, App., Fisher es qual. Besp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. See case in S. 0. Montreal ; Cond. Bep., p. 87. Held, 1. That a mere abstaining from intermeddling with the estate of the father, does not relieve his heirs from an action for his debts, but an acte of renuU' elation is necessary. 2. That an heir who pleads a renunciation, which is made only before the hearing on the merits, will be condemned only to costs. 4 Jurist, p. 54, Montreal Building Society Ker/ut et al. S. C. Montreal ; Berthelot, J. Hbih Pebsumptivb. Held, That no action en revendication can be maintained by the presumptive heir to the estate and succession of an absentee, if he be not curator to the estate of such absentee, or entitled to the possession by virtue of an envoi en possession or a final delivrance of the estate and succession. Stuart's Bep., p. 36, Cfauvin vs. Caron. K. B. Q. 1819. See AoTiON, various titles. " Wills, Husband and Wife. SUNDAY. Contract on. See Bills and Notes dated on Sunday. SUBETY. Appeal to Privy Council. The respondentfl served a notice upon the attorney for the appellants, that they would put in security upon an appeal to the Privy Council on Saturday the 18th t r'^' r ' • 898 SURETY. August, in the judge's chambers, in the court house ; security was not put in on that day, but notice was given later on the Saturday that security would be put in in chambers on the Monday, which was done, not in chambers, but at the judge's house. One of the sureties signed the bond in the forenoon, and the other in the afternoon : Held, On motion to set aside the bond for irregularity, and want of sufficient notice, that the bond must remain, but allowing the parties moving to make such objections to the sufficiency of the security as they might legally have made when the security was put in. 10 L. 0. Rep., p. 402, Gibb et al. App., The Beacon Aamrance Company, Besp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. BAiji — Criminal. In an action against bail, founded on the non-appdaranoe of the accused in the Court of Queen's Bench, Crown side : Held, 1, That after the accused has pleaded not guilty to an indictment, no de- fault can be recorded against him without notice, unless it be on a day appointed for his appearance. 2. That it is the duty of the Court of Queen's Bench to estreat the recogni- zanoe in cases like the present, but only after notice has been duly given. 9 L. C. Bep., p. 67, The Queen vs. Croteau. S. C. Montreal ; Badgley, J. See a like judgment, Regina vs. Beaulieu. 3 Jurist, p. 117. Badgley, J. Held, That on motion, a plaintiff will be allowed to substitute and ^le in the cause a notarial acte of cautionnement with a new surety in place of one produced with the action, the first surety being alleged to have desisted from his caution- nement. 12 L. C. Bep., p. 94, Mongeau vs. Dubuc. 8. C. Montreal ; Monk, J. Surety's liability to costs of suit against principal. See Costs, Boucher y:, Latour. . Bail to Sheriff. Held, 1. That the liability of the bail to the sheriff on a writ of capiat ad respondendum, is for the amount indorsed on the writ, and no more. 2. That where the sheriff has taken bail for double the amount of the debt sworn to in the affidavit, and judgment has been obtained for an amount greater than that sworn to and indorsed on the writ, the bail are not liable for such excess. 3. An assignment under the ordinary signature, and in the form used in England, is sufficient. 4. That a motion to be allowed to put in special bail which was rejected, is not a sufficient compliance with the writ to relieve the bail to the sheriff. 2 L. C. Rep., p. 231, Torrance et al. vs. Gilmour. S. C. Montreal; Day, Vanfelson, Mondelet, J. Held, 1. That a bail bond to th> sheriff is null, if it c n^nin? a clause that the party shall put in special bail on the day of the return, o,i.'l not at any time before or after judgment. 2. That the death of the defendant liberates the bail. 3 Rev. de Jur., p. 297, Raymond vs. Walker. Q. B. Quebec, 1848. SURETY. 89» the accused in the istreat the reooomi- the form used in Construction op. Held, In the Superior Court, 1. That an acte of suretyship will not cover a class of debts not contemplated by the parties at the time it was executed, al« though the terms of the deed are so general as to extend to all debts whatsoever. 2. If the introductory or recital portion of the acte indicates the purpose for which it is executed, it will be restricted to that purpose, notwithstanding the general terms in which the sureties contract. 3. An acte reciting that M. C. proposed to carry on business in Montreal and elsewhere, and that to enable him to do so, and to meet the engagements in liqui- dation of a firm of which he had been a partner, he would require bank accommo- dation, and that the sureties were willing to become his security with a view of making the bank perfectly secure with respect to any debts then due, or which might thereafter become due by him, and containing an agreement by which the goreties bound themselves for all the present and future liabilities of the said M. C., jointly and severally, whether as 't iker oi drawer, endorser or acceptor of negotiable paper, or otherwise Iiowsoever, will not render the sureties liable for debts contracted by M. C. by indorsing or procuring the discount of paper in his own name, for the benefit )f a firm of which he became a member subsequent to the execution of the deed of warranty, although such paper was discounted and placed to his individual credit at the bank. 4. A defendant may be a witness for his co-defendants if he be not interested or if his interest be removed by a discharge. 2 Jurist, p, 154, Bank of British North America vs. Cuvillier et al. S. C. Montreal ; Smith, J. Confirmed in Appeal. Lafontaine, C. J., l/uval, Mondelet, Monk, J. ; Aylwin, J., dissentmg. 4 Jurist, p. 241. Held, In the Privy Council, That the recital in a deed of warranty, indicat- ing the motive which prompted the execution of the deed, will not control the engagement, when such engagement is general and more extensive than the limited object for which it is supposed to be given, and that therefore the deed above referred to, will make the sureties liable for debts contracted by M. C. by indorsing or procuring the discount of paper in his own name, for the benefit of a firm of which he became a member subsequently to the execution of the deed of warranty. 5 Jurist, p. 57, Bank of British North America, App., Cuvillier it al, Resp. Contribution. Held, That a fdejmseur has his action against his co-Jidejusseur for his pro- portion of the sum which he has paid for their common principal, but if there be no convention to the contrary in the deed by which he became security, his action is only for money paid, and consequently he can have no mortgage upon the pro- perty of his co-fidejuiseur until he has obtained a judgment, and then only from the date of the judgment. Stuart's Kep., p. 125, Jones vs. Laing, and Herbert, 0pp. K. B. Q. 1818. Held, That one of several co-debtors who has paid the debt for which they were all bound, without taking a subrogation from the creditor, can maintain an action negotiorum g^torum for money paid and advanced against each of his co- lit '«j V / / T 400 8URETT. SbH ■I ■■,n ' , ,1 I I I ■» ' debtors, and recover from each Vv^ portion virile. Aady vs. Ritchie. K. B. Q. 1820. See Appeals. DiSOHARQE OF. Held, That a simple neglect on the part of the creditor to receive his debt from his principal debtor, does not discharge the sureties. Bertheht vs. Aylwin. K. B. Q. 1819. Fob Officer. Held, That the sureties for a paymaster, " if default shall be made in all or << any of the conditions of his bond " are liable, upon proof of the breach of any one of the conditions. Rex vs. Burnt. K. B., 1819. Held, That a bond conditioned upon the due fulfilment of the duties of an officer (paying teller) of a bank, is void as against sureties by the reduction of his salary below that stipulated in the bond, without consent of sureties. 2 L. C. Bep., p. 246, City Bank vs. Brown et al. Held, That the security given for a debt not in existence cannot be of any avail to a party making a loan, unless it be shown that the loan was made upon the faith of such security, and that there was privity between the parties. 1 L. C. Bep., p. 41, Derousselle vs. Beaitdet. 8. C. Quebec ; Bowen, Duval, Bac- quet, J. In an action against a surety to recover £3010 advanced under notarial obli- gation to a firm for the purpose of getting out timber : Held, That the defendant can set up in compensation and payment the pro- ceeds realized by the plaintiff of timber delivered by the principal debtors, and have the amount imputed on the original advances, unless an agreement to the contrary was made at the time of payment. 1 L. C. Bep., p. 136, Symet vs. Perhins. S. C. Montreal ; Smith, J. In Appeal. In Appeal from the Circuit Court, under the 12th Vict., c. 38, sect. 53, Held, That the Appeal bond is insufficient if the surety has not sworn that the property declared to be mortgaged belongs to him. 1 L. C. Bep., p. 218, Stuart vs. Scott. S. C. Quebec ; Bowen, C. J., Meredith, J. In an action brought against the principal debtor and his sureties under a notarial obligation, the sureties pleaded that a lot of land, mortgaged in plaintiflfs favor, had been sold to the principal debtors and a judgment of ratification ob- tained subsequently, without opposition by plaintiffs to preserve their mortgage; that the obligation was not even enregistered, and that under a clause in the ob- ligation it was stipulated that the sureties " shall be substituted and subrogated " in all and every the claims, privileges, and mortgages hereby created in favor '* of the bank (plaintiffs) for the amount which the said sureties may pay." Held, That this clause enunciated only the common law right of subrogation, and that the loss of the security by the inaction of plaintiff did not affect their right against the sureties. 1 L. C. Bep., p. 354, Redpath et al. vs. McDougoU et al. S. C. Montreal ; Day, Smith, Mondelet, J. SURETY. 401 Held, On appeal from the Circuit Court, that the omiBsion to annex a certified copy of the security bond to the petition presented in appeal, i.s fatal under the 12th Viot., c. 38, sect. 85, and the court will not permit a copy to bo afterwards fyled. 2 L. C. Hep., p. 299, Germain vs. Vezina. S. C. Quebec ; Bowen, C. J., Duval, J. Sureties in appeal, proof of bond. See Appeal, Bond. Held, On an appeal ex parte, 1. That whore a notice of security in appeal was given for the " 28th Feb.," and the date erased (^rature) and " 3rd March " next " put in the margin and paraphed but without the marginal note being mentioned at the bottom of the notice, or in the bailiff's certificate, that the return is uot necessarily void, aiid the court, according to circumstances, may maintain the validity of the notice, and service. 2. That in an action en garantie d' eviction against joint and several sureties, the condemnation will be joint and several. 5 L. C. Hep., p. 3G, Demers, App., Parent et al., Hesp. In Appeal : Lafontaine, C. J., Panet, Caron, J. ; Aylwin, J,, dissenting. Held, In an action against sureties in a bail bond on appeal, that the question as to the necessity of discussing the property of the principal debtor, ought not to be raised by a difense en droit, but by an exception of discussion. Semble, That in such case discussion is not necessary. 9 L. C. liep.,p. 403, Thorn vs. McLennan et al. S. C. Montreal ; Badgley, J. Held, That an appeal bond given before the issuing of the writ of appeal is null and void. 11 L. C. Hep., p. 72, Burroughs, App., Sinij)son, llosp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. Same case, 5 Jurist, p. 20. Notice of security in appeal was given on the 15th, to be put in on the 17th; another notice was given that security would be put in on the 18th May, 1858, nevertheless security was put in under the first notice, which security was set aside in the Court of Appeal as irregular and insufficient, the first notice having been rendered of no effect by the second : Held, That an action will not lie against the sureties on the bail bond so set aside in appeal. 10 L. C. Hep., p. 238, Smith vs. Egan et al. S. C. Montreal ; Smith, J. Held, That the notice in the above case for the 18th is a waiver of the pre- vious notice for the 17th. 2 Jurist, p. 160, Sullivan vs. Smith. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Held, That a security bond in appeal, given by Indians, is valid in the present case, inasmuch as the sureties, as appeared by affidavits, were in possession as proprietors, according to the Indian customary law, of certain real estate lying within the tract of land appropriated to the use of the tribe to which they be- longed. 3 Jurist, p. 316, Nianentsiasa, App., Akwerente, Hesp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Meredith, Mondelet, J. Held, That sureties in appeal are not liable for the condemnation money where the appellant has fyled a declaration that the judgment appealed from might be executed, although, by the appeal bond, they were liable for debt and costs. 4 Jurist, p. 293, Chaurette \a. Ea^in. S. C. Montreal; Monk, J. AA l^i i| I . (1 . 1 1 1 1 l- I > I ' 1 ' Hil = ■ . : '' i^ M. ■■ i'.' ;. ; ' mm m:.]i 402 SURETY. Hold, 1. That where a judgment orders a writ of contrainte par corpn against a defcndiint and iinpriaonincnt until he shall have paid debt, interest, and cohIn in the cause, and on appeal, the sureties give the usual bond that the appellant (defendiint) shall effectually prosecute the appeal, and pay such condcnination n)oncy, costs, and damages, as shall be adjudged in case the judgment of the H. C. be affirmed ; the sureties are not, on the confirmation of the judgment, iinrae. diatcly liable to the plaintiff for more than the costs of the appeal, and not for the condemnation money, until the plaintiff has first enforced the order for con- trninte iilFainst the defendant. 2. That the plaintiff will bo liable for tjie costs of the contestation, although the defendant pleaded only the general issue. 5 Jurist, p. 161, Whitney vs. Jiroo/:s et III S.C.Montreal; Badgloy, J. Held, That a defendant whoso opposition has been dismissed, is bound, on an appeal, to give security for the debt, and that security for costs only will be declared insufficient, Lampsnn vs. Wurtele. In Appeal, 1847. Payment Anticipated. Held, That a surety who, under a clause in a deed of composition, paid moneys by anticipation to one of the creditors on an instalment not due, cannot claim to be collocated on the proceeds of the debtor's goods in preference to other credi- tors, parties to the deed of composition. 7 L. C. Rep., p. 272, Whitney t( al. vs Craig, and Craig. 0pp. S. C. Montreal ; Smith, Mondelet, Chabot, J. Same case, 1 Jurist, p. 97. Payments. Held, That a letter of ^«ran'' sheriff has been assigned by the sheriff to the plaintiff, and by tho latter to it third party who brought an action on the same. Tho judges in appeal being equally divided, tho judgment below stood con- firmed. 9 L. C. Rep., p. 74, Campbell, App., Atkina et al, Reap. In Appeal : Lafontaino, C. J., Aylwin, Duval, Caron, J. Bv ATTORNEy. See Attorney, Bail. Liberation of. Sec Contract, Novation. Surety not liable for costs of an action against principal debtor. See Costs. In Appeal ON Bills and Notes. Sec Bills and Notes, as security for Shares. Surety discharged by delay given to principal. See Contract, Novation. Surety under 264th Article of Coutumc. See Dower. TAX. See Corporation, Assessments. « " Capitation Tax. ^ee Schools, Assessment. " Landlord and Tenant, Assessment Fees. For Court House. ^Sfee Officer of Justice. See Dower. a time to be det«r- it of a sum equal to ition, if the caution S. C. Montreal; In have the effect of ». 191, Lehlancn. lembers of a firm; issing the principal jntreal;Badgley,J. arrested on capias) does not set forth 3egin et al. vs, Bell ^t, and after the bail kemselves. 3 Jurist. TENANS ET ABOUTISSANS. See Pleadings, Declaration. " Action Bornage. " " Hypothecary. TENANT. «S'ee Landlord and Tenant. TENDER. See Pleading, Tender. Of American Gold, ^ee Aliment. See Currency. Effect of. See Corporation, Assessors. To Bailiff. See Huissier. TENURES. See Dower. Prihoqeniture. ^ee Impenses in Petitory Action. ' 1 i i 1 '1 ■ Plr Wm t « 404 TITHES. TIERS SAISI. See EXEOUTION, Soisie Arrfit, Tiers Saisi. TITHES. Held, That the action for tithca in Lower Canada is not subjcot to the pro- scription of a year. 3 L. C. Rep., p. 81, Brunei vs. Deajardins. C. C. Terre- bonne ; 0. Mondelet, J. Held, 1. That in Lower Canada tithes do not run in arrears ne t'arreragent pat. 2. That the action for tithes is subject to the prescription of a year, and that u tender of the oath of payment is not required. 3 L. C. Rep., p. 196, Thiberge vs. Vilbon. S. C. Montreal ; Day, Smith, Vanfelson, J. See 3 Rev. de Jur., p. 73, Blunchet vs. Martin dit St. Jean. Q. B. Mon- treal, 1833. Hold, That a Roman Catholic is not bound to pay tithes of the produce of lands held in free and common soccago in the townships. 4 L. C. Rep., p. 411, Re/our vs. Sinical. C. C. St. Hyacinthe ; J. S. MeCord, J. Same case, Cond. Rep., p. 104. Held, 1. That the dixme must be divided pro rata amongst the ourds during the time they officiated in the parish. 2. That the ecclesiastical year as respects dixme, runs from the St, Michel of one year to the same time of the following year, and that payment of dixme becomes due at Easter. 4 Jurist., p. 16, Filiatrault vs. Archambault. G. C. Sorel ; Bruneau, J. Held, 1. That notification to a cur6 of withdrawal from the Church of Rome, will discharge the person giving such notification from tithes thereafter. 2. Such notification need not be by notarial aete but may be otherwise proved. 5 Jurist, p. 27, Gravel vs. Bruneau, C. C. Montreal ; Badgley, J. See Crown, Mails. See Penal Statute. TOLLS. ^M^m^^^^K^ TRADITION. In Petitory Action. See Action PetiToirb. Of movables in donation by husband to wife. See Donation, Delivery. " Sale op Goods. " Fraud, Tradition. TRANSACTION. See Contract. With Tutor. See Invbntobt. TUTOR. 405 3ar8 ne t'arreragcnt Jean. Q. B. Mon- agst tbo curds during ATION, Delivery. TRANSPORT. See Cession. Carrier — Railwoy Co. TRINITY HOUSE. ReQULATIONB. See SlIIPB AND SlIIPPINO. TROUBLE. See Sale of Immovables. See Garantie. TURNPIKE ROADS. See Corporation, Roads. TUTOR. Bank Stock. Held, In the Superior Court and in Appeal, 1. That by law, the power of a tutor over the property of a minor does not extend beyond that of simple admin- istration. 2. That he has no right, without sufficient authority first obtained, to sell " les immcuhles rieh oufietifs, ou reputis tels, ou choses precieuses. 3. That shares in a bank must bo held to be immeubles fictifs, ou choses pre- cieuses, and that the sale and transfer thereof by a tutor en deconjiture, without any formality or authorization, whereby the proceeds were wholly lost, is an ab- solute nullity, in so far as the minor is concerned. 4. That in an action by the minor against the bank, such minor is entitled to recover all the dividends accrued from the date of the transfer, although such dividends have been paid previously by the bank to the transferrees. 5. That in such action the transferrees of the stock need not be joined. 10 L. C. Rep., p. 225, Tlie Bank of Montreal, App., Simpson et at., Resp. In Appeal : Lafontaine, 0. J., Duval, Mondelet, Badgley, J. ; Aylwin, J., dissenting. Same case, 5 Jurist, p. 169. Held, In the Privy Council, 1. That the power of a tutor does not extend, without the sanction of the court, to selling any portion of the immovable pro- perty of his ward, or any property of a mixed character, and further that his power is also restricted from selling, without such sanction, any of the movable property except such portion as is unproductive of revenue, or such portion also, as being of 8 perishable character, will necessarily cease to exist, or will, from permanent causes, become deteriorated in value at the majority of his ward ; and even this qualified power of disposing of unproductive property is still further limited by a restric- ;, Hjlff H'f' W ''' B ^ Hi ' ■ 406 TUTOR. ! t ! 1 tion from disposing of articles in the nature of heirlooms, as to which an hered- itary pretium affectionia is attached ; and that shares in a bank, or bank stocks fall within the description of movable property which the tutor cannot dispose of without such authority. 2, That the sale of shares in a bank by a tutor, must bo treated, not as a void- able transaction, but as actually void; and that therefore the persons who boucht the shares need not be included in any action brought in relation to such shares 11 L. C. Rep., p. 377, The Bank of Montreal, App., Simpson et vir, Resp. In the Privy Council : Lord Kingsdown, Sir Edward Ryan, and the Master of the Rolls. Bequest by Minor. Held, That a minor of the age of twenty can bequeath personal property to his tutor. Stuart's Rep., p. 307, Durocher et al., App., Beauhieii et uL, Resp, In Appeal to the Privy Council, 1828. Minor, marriage of. See Marriage. 1 : 1 , 1 ^'Vi' ! '' 1 ( M ,. itii '." '■■ ' 1 ■ 1 i^,. ;^;li m 4i Change ^p. Held, 1, That a tutor must be superseded in the manner directed in the 41st Geo. 3,.c. 7, sect. 18, but an appeal is the proper remedy if the appointment of tutor has not been regularly made. 2. The action en destitution lies for subsequent misconduct of the tutor. 3 Rev. de Jur., p. 365, Darvault vs. Foumier. K. B. Q. 1819. Conflict as to. Held, 1. That in Lower Canada a tutelle is dative, and is conferred by the judge, and not by the advice of the relations, such advice being only a mode of inquiry to aid the judge in the exercise of his attributes. 2. That a iutcllc is not null de plcin droit by reason of one of the grand- fathers not having been called to the meeting of relations, and that such tuidle ought not to be set aside, if the interests of the minors be not affected by such omission. 3. That the tutelle must be conferred by the judge of the last domicile of the deceased father, which continues to be the domicile of the minors. 4. That, in the present case, the father had continued his domicile in the dis- trict of Montreal, although he had of late resided in another district, and died in Bermuda. 5. That in the event of two tutelles being conferred in two distinct jurisdic- tions, the court called upon to adjudicate upon the one conferred in its jurisdic- tion, may, and is bound, to adjudicate upon the validity of the other if the same is brought into question. 5 L. C. Rep., p. 344, Beaudet, App., Dunn, Resp. In Appeal : Lafontaine,C. J., Aylwin, Duval, Caron, J. Same case, S. C. Montreal ; Cond. Rep., p. 14. See Inventor)/ as to legality of a second tutelle while the first is in existence. TUTOR. 407 a which an hcred- ik, or bank stocks cannot dispose of, it is Id existence. Held, That a stranger in no way related to the minors has no right to bring an action en destitution de tutelle. 1 Jurist, p. 195, Ex parte O'Meara, S. C- Montreal ; Day, Smith, Chabot, J. Held, That a person not of kin, or a relative of'tho minor has a right to pre- sent a petition en destitution de tutelle, when the minor has no kin or relative in Canada. 3 Jurist, p. 72, Dooley vs. WardUy et al. S. C. Montreal ; Smith, J. Lesion. Held, 1. That in an action of indemnity for lesion, a minor will not be obliged to deduct what he has received, unless it be pleaded and proved that he profited by it. 2. That positive proof of lesion in such case is not required, but may be in- ferred. 3. That the action of recision for lesion will bo maintained, notwithstanding proof that the minor managed his own afif.iirs to a considerable extent. 4. In such action the minor is only bound for im2)enses necessaires, but will obtain the fruits and revenues from the date of the deed attacked, if no other proof of defendant's good fiiith is adduced than that the minor managed his own affairs to a considerable extent. 5 Jurist, p. 320, LariviHre vs. Arstnault, and Lariviire. S. C. Montreal ; Monk, J. Minority. Held, That a minor may be sued for necessaries without his tutor. 4 Jurist, p. 14G, Thibodeau vs. Magnan. C. C. Montreal ; Monk, J. Held, That a minor may plead the want of assistance by a tutor or curator. 5 Jurist, p. 48, Crump vs, Middlemiss. S. C. Montreal ; Berthelot, J. Held, That an action for money paid and advanced for a minor must be insti- tuted against his tutor. Martimiccio vs. Jaconelli. K B. Q. 1819. Held, That a minor, who is a merchant, may sue alone and without his tutor upon a contract made in the course of his trade. Black vs. Esson. K. B. Q. 1820. Held, That a minor cannot be a caution, and if he does become bail for another, and is sued, and pleads his minority, the action must be dismissed. Dirousselws. Binet. K. B. Q. 1820. Held, That a contract of a minor is not null de pilein droit. Casgrain vs. Chapais. K. B. Q. 1820. Held, That a minor cannot be impleaded in his own name for necessaries for which he is liable, but the action must be brought against his tutor. 4 L. C- Rep., p. 224, Cooper vs. McDougall. S. C. Quebec ; Duval, Meredith, J. Held, That a minor, marchnnd, can be sued and condemned for debts con- tracted in the transaction of his business, without the appointment of a tutor, such minor being, with respect to such business, by law held as if of full age. 5 L. C. Rep., p. 193, Danais vs. Coti. S. C. Quebec ; Bowen, C. J., Morin, Badgley, J. Held, That where a writ of summons is issued previous to, but is served after, the majority of the defendant, the action will be dismissed on an exapti'in a let forme. 9 L. C. llep., p. 71, Chali/oux vs. Thouin dit Roche. S. C. Montreal; Mondelet, J. Itl'f \i 4 408 TUTOR. ( 1 1 :'!-!! Same case, 2 Jurist, p, 187. In an action for haberdashers' wares ($14.85) against a party who was only eighteen years old at the time of the contracting of the debt, the defendant pleaded minority at the time, the plaintiff replied setting up a promise to pay since his majority : Held, That such promise to pay even a commercial debt must be in writinf. Action dismissed. 3 Jurist, p. 337, Mann vs. Wilson. C. C. Montreal; Ber- thclot, J. Held, That a minor who is proved to have lodged at an hotel, and to have offered to sell goods (gold pens) will be liable by capias for his board and lodg- ing at such hotel, as for goods bought for the purposes of his trade. 12 L. C. Rep., p. 292, Browning vs. Tale, and Wales Tutor, Inter. S. C. Montreal; Smith, J. Same case, 6 Jurist, p. 251. Natural Tutor. Held, That a father cannot sue for his minor child as his natural tutor, nor maintain his own action if he has joined it to that brought for his son as such natural tutor. 2 L. C. Rep., p. 367. Petit vs. Bichette. C. C. Quebec: Duval, J. Held, In an action brought against a minor en declaration de paterniU and against his father, as well in his own name and as tuteur naturel, the minor child is not legally represented, nor can he be impleaded or called upon to answer to such action. 9 L. C. Rep., p. 203, Hislop, App., Emerich et a?., Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. See case in the S. C. Montreal ; Cond. Rep., p. 106. Held, That an opposition cannot be fyled by a father as tuteur Ugitime of his children. 1 Jurist, p. 100, Fletcher vs. Gatignan, and Gatignan, 0pp. S. C. Montreal ; Smith, Mondelet, Chabot, J. Ste Damages, Arrest, as to action for arresting minor. Tutor ad hoc necessary enpartage when. See Action Partage. Powers of. Held, That a tutor or guardian to children resident in a foreign country, if duly appointed according to the laws of that country, can support an action on their behalf. Allen vs. Cottman. K. B. Q. 1811. Held, That no action lies against a tutor personally, upon a contract entered into by him solely on behalf of his pupil. Turcotte vs. Gameau. K. B. Q. 1821. Held, That an action of damages for breach of contract cannot be maintained against a tutor personally, who stipulates for his pupil that she will marry the plaintiff. Chabot vs. Aforisset. K. B, Q. 1812. Held, That a contract of sale executed by a tutor on the behalf of his pupil is null dej'lein droit, without an avis de parens. Normandeau \8. Amblement. K. B. Q. 1813. Held, That a tutor may, in an hypothecary action, fyle a plea of diguerpisse- ment for his pupil, but it must be founded on an avis de parens. Tasche vs. Levasseur. K. B. Q. 1812. riri!. TUTOR. 409 ist be in writing. Montreal; Ber- Tax of Witness. Held, That a witness summoned to give evidence in a case wherein the defend- ant was tutor to a substitution, could not recover the amount of his taxation in an action against the tutor personally. 11 L. C. Rep., p. 281, Dagenais vs. Gau- thier. O.C.Montreal; Smith, J. Tutor ad hoc. Held, That when a tutor ad hoc, appointed to protect the interest of minors, in a usufruct bequeathed to them, is sued in an action relating to such usufruct, it is not necessary that a tutor ad hoc be appointed expressly for that suit. For- sj/'h ct al, vs. Williams et al. S. C. Montreal ; Day, Smith, Vanfclson, J. Held, That an opposition to the sale of real estate by a tutor ad hoc autho- rized to act for minors, is maintainable without registration of the acte de tutelle, and that the 4th Vict., c. 30, sect. 24, is not applicable to such opposition. 5 L. C. Rep., p. 401, Chouinard \s.Demers, and Gareau, 0pp. S. C. Montreal; Day, Smith, Mondelet, J. Held, That a minor wife, assisted by her husband, can maintain an action for movable rights arising out of the succession of her mother, without being assisted by a tutor ad hoc. 1 Rev. de Jur., p. 288, Prevost et ux vs. Breux. Q. B. Montreal, 1832. Held, In an action by a widow for a partage of the community, the minors. issue of the marriage, must be represented by a tutor ad hoc, specially appointed to answer such demand en partage. 3 L. C. Rep., p. 301, McTavish vs. Pike ct al. In Appeal : Stuart, C. J., Panet, Aylwin, J. ; Rolland, J., dissenting. As to registration of acte de tutelle. See Registration, Acte de Tutelle. Tutor's Account. Held, In an action against a tutor to render an account, he may plead that he rendered an account before action brought, renew his account in court, and conclude that it be declared good and valid and the plaintiff condemned to costs. 4 L. C. Rep., p. 222, Trudel et al. vs. Boy dit Audy. S. C. Quebec; Duval, Meredith, Caron, J. Held, That an account rendered by a tutor to his ward en bloc after majority, is null ipso jure, and constitutes no bar when pleaded against an action to account. 2 Jurist, p. 104, Ducondu vs. Bourgeois. S. C. Montreal ; Smith, J. Held, That a judgment may be rendered against a tutor to satisfy a prelimi- nary condeumation, or to render an account ; or he may be condemned to render an account by a contrainte par corps. 3 Rev- de Jur., p. 245, Hayes, App., David, Resp. In Appeal, 1847. See Action to Account. Tutrix ordered* rfe^renf^re qualiti within fifteen days. Pr^vostd, No. 86; Tutor condemned to remain tutor. Prc'vost^, No. 105. Confirmed in appeal ; Cons. Sup., No. 51. Tutor discharged from tutelle. Cons. Sup., No. 5. Discharged having five children. Cons. Sup., No. 42. '1 I 410 USUFRUCT. Injunction to inferior jurisdictions not to name tutors without presence of Procureur General or his substitute. Cons. Sup., No. 24. Tutello declared null on account of the tutor not having been called to an aasembUe. Cons. Sup., No. 55. Tutor's account, form of presenting and affirming it. Pr<5vost(S, No. 10. Tutor, opposition by. See Opposition e;i sous ordre. 'l>'lM:l ii USUFRUCT. ACCROISSEMENT. Held, That accroissement takes place in the donation of a usufruct, even by acte entre vi/s, if by its disposition and clear terms, it creates a suhstUution red. jiroque, and that the substitutions created by donation and by will are regulated by the same rules of law. 3 Jurist, p. 14:1, Josi'iih vs. Castonguay ct al. S. C- Montreal j Smith, J. Ameliorations. Held, 1. Where a usufruct only of real estate was seized, a proportion of the ameliorations and improvements made on the real estate will be allowed, accord lug to the increased value given to such usufruct. 2. That in cases of contestation or distribution of moneys, the opposant whose claim is reduced, must pay the costs of contestation. .9 L. C. Rep., p. 263, Fau- teux, App., Boston, llesp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Mere- dith, J. Held, 1. That the usufructuary can only recover, in the case submitted, from the proprietor the grosses reparations and the repairs necessary for the preserva- tion and enjoyment of the immovables subject to the usufruct. 2. And can only claim the value of the useful improvements, amilinrntiom utiles, so far as the immovables derive value from them at the time of the open- ing of the substitution. 3. That the impenses grosses et nicessaires were payable in the entire, even although they should have ceased to exist at the opening of the substitution, provided they have not so ceased to exist by the fault of the usufructuary, by reason of his want of care. 4. That impenses voluptuaires are not payable by the proprietor. 11 L. C. Hep., p. 388, Lafontaine vs. Suzor et al. S. C. Quebec ; Taschereau, J. Dech£ance. Held, That an action does not lie en dichiance d'usufruit, in favor of a tutor appointed en justice to a substitution under a will. 3 Jurist, p. 54, Gauthier vs. Boudreau et al. S. C. Montreal ; Day, Smith, Mondelet| J. REPARATION. Held, That the proprietor of land has no action against the usufructuary to compel him to make specific reparations, or in default thereof to pay damages. 5 USURY. 411 Jurist, p. 99, McGinnis vs. Choquet. S. C. Montreal ; Day, Smith, Mondclct, J. Same case, Cond. Rep., p. 89. Sale of. Held, That a sale of the usufnict of a ftirm for a sura certain, but to be held for a period depending on an uncertain event, is a contrat aleatotre upon which an action will lie. Lagassi vs. Dion. K. 13. Q. 1820. Seizure and Sale of. Held, That a transfer of a right of usufruct of real estate for seven years vests in the assignee only the right of exercising the usufruct, and will not support an opposition to the sale of the usufruct upon an execution against the assignor. 9 L. C. Rep., p. 59, Simpson et al. vs. Delisle, and Dorion, 0pp. S. C. Montreal; Badgley, J. Held, That where a judgment was rendered against a husband, condemning him to pay an annual rent and pension to his wife, separated as to coips et habi- tation, and a usv/ruit viagcr was seized, that an opposition will not be main- tained to such seizure, founded on a bequest to the defendant, opposant, by his father, by the following clause in the will, " Je defends exprcssement que ces " biens soient en aucune maniere engagers, alienos, hypothequds, non plus que " III jouissance, intMt, ou usu/ruit d'iceux, qu'ils (les grdves) retircront pour " leur pension et leur subsistance, et pour la subsistance et dducutiou de leurs " families, sous peine de nullity de tons actes qu'ils feront contraircs a mon intcn- " tion, pour que ces biens retournent a leurs enfants, etc." 1 Rev. de Jur., p. 81, Dame M. L. E. F., ditc M. vs. L. E. C, dit C. In Appeal : Stuart, C. J,, Bowen, Panet, Bedard, Mondelet, J. Held, 1. That the building of a house upon real estate subject to a usufruct Joes not cause such a change in the property as to put an end to the usufruct. 2. That a wife sejmree dcs biens from her husband cannot bind her real estate for a debt due by her husband, for the payment of which she could not bind her- self personally. Scmble, That on proper pleadings, an expertise might have been had to ascer- tain to what extent the usufruct of the wife was increased in value by the moneys derived from the obligation given to the husband, and that, to this extent, the ■obligation would have been binding on her. 12 L. C. Rep., p. 178, Little, App., Dignard, Resp. In Appeal: Lafontaine, C. J., Aylwin, Meredith, Mondelet, J. Usufruct. See Partaqe. ■i? 5 USURY. Held, That if a debt contracted in England be tainted with usury, the law of England ought to be alleged in the plea. 1 L. C. Rep., p. 90, Hart et al. vs. Phillips. In Appeal : Stuart, Rolland, Panet, Aylwin, J. The plaintiflFs were in the habit of advancing supplies of goods, cash and negotiable securities, as required from time to time by customers, to support them :i r I I w I ^ i ■ ■ ! M 412 USURY. in their dealings, returns being made by such customers, at their convenience in the freight of produce from the upper country, and in the transfer of vessels and barges, and in the payment of cash and negotiable securities, and charged a codi« mission oi five per cent, on all advances made by them, when the customers had no funds in their hands, and interest from the time the different items of their account became due, under a previous agreement to that eflFect : Held, That the commission in this case was not usurious, or a cover for a usurious transaction, but a customary allowance for the trouble and inconvenience of transacting the business. 3 L, C. Rep., p. 171, Pollock et al. App., Brad- burt/, Resp. In the Privy Council : Lord Justice Knight Bruce, and oilers. In an action on an obligation, the defendant pleaded that he gave the plaiutift two promissory notes for £G0 each, on account of the amount due and had paid them, and had given another note for £G0 which was still in plaintiff's hands. The plaintiff answered that the first note had been received and paid, and that the other notes were given on an agreement to pay 12 per cent, interest on the obligation. The defendant, examined on /aits et articles, admitted his promise to pay the 12 per cent., stating that he had been forced to do so, being unable to pay the capital when it became due : Held, That the amount of the second note must be deducted from the princi- pal and interest at 6 per cent, and that the third note did not operate as a nova- tion, and must be given back to defendant. 10 L. C. Rep., p. 236, Beaudry vs. Proulx. S. C. Montreal ; Berthclot, J. Held, That in an action on an obligation for $400, the plaintiff, in the case submitted, can only recover the amount of money actually received by the defend- ant ($252), the difference being shown to be a bonus for the loan. 11 L. C. Rep., p. 166, Belleau vs. Degourdclle. S. 0. Quebec ; Stuart, J. Held, That under the 16th Vict., c. 86, a notarial obligation will be reduced to the capital actually loaned, and legal interest thereon. 4 Jurist, p. 302, Mor- son vs. David. S. C. Montreal ; Monk, J. In Bills and Notes. Held, That an exception of usury to an action on note, will be dismissed on demurrer, the remedies under the 17th Geo. 3, c. 3, having been done away with by the 16th Vict., c. 80. McFarlane vs. Rodden et al. S. C. Montreal ; Cond. Rep., p. 3. Held, 1. That the only effect of the statute of 1855, c. 80, is the repealing of the penalties and nullity of the contract, enacted by the ordinance 17th Geo. 3, c. 3, sect. 3. 2. That the legal rate of interest is six per cent., and that a maker of a note or other instrument in writing, whenever a greater rate has been retained or paid, has the right to have sn '. excess deducted from the principal debt. 7 L. C. Rep., p. 405, Nye, App., Malo, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. In an action on note against the defendant as one of a firm who were the payees and indorsers of the note, it appeared that the plaintiff had discounted for the firm - Tl . U a ■ VACANT ESTATE.— VENDITIONI EXPONAS. 418 the note in question, with two other notes made in their favor, and retained as discount an amount equal to sixty per cent, per annum on the three notes ; the (lefendimt pleaded usury and that the excess of interest over six per cent, should bo deducted from the note sued on, the two others having been paid in full : Held, That the plea could not be maintained ; first, inasmuch as the defendant had not established the precise excess retained over the legal interest on the note ill suit ; and second, because the defendant's firm were indorsers of the notes, and the two notes might have been paid by the makers, and not by the indorsers. 9 L. C. Hep., p. 327, Malo vs. Wurtele. S. C. Montreal ; Smith, J. Held, 1, That any excess of interest over six per cent, is usurious and illegal, and can be claimed by the debtor by exception. 2. That where a party interrogated on fait et articles on a matter which he ahould know, answers that ne does not remember, as in this case where the plain- tiff when asked what amount he had advanced and what sums he had received, answered that he did not keep a journal, memorandum, or account book, and that he had forgotten the amounts advanced or received, the interrogatories will be taken pro con/essis. 2 Jurist, p. 43, Nj/e, App., Malo, Resp. In Appeal : Latbntaine, C. J., Aylwin, Caron, J. j Duval, J., dissenting. Interrogatories. Held, That a plaintiff cannot be compelled to answer on /aits et articles, or on the decisory oath, to any question which tends to charge him with usury. Hodg- son vs. Hanna. K. B. Q. 1818. Usury, Proof of. See Bills and Notes, proof of. " as to Plea of See Lex Looi. " See Interrogatories surf aits et articles. VACANT ESTATE. , fU f '\ I M' See Curator to. VACATION. Appearance in. See Attorney, Appearance. Plea IN. " " " VARIANCE. In Proof. See Evidence, Variance. VENDITIONI EXPONAS. Sec Execution. iili ^DS^Ik' ^^^^B '' \ i : 1 : ! 414 VENTILATION. — VERDICT. — VOTES. VENDOR'S RIGHTS, See Sale of Immovables. " Sale op Goods. " Action, Revendication. " Lien. " PmviLEaE. VENTILATION. * Held, 1. That the parties interested in the contestation or issue joined, are alone to be made parties to an appeal. 2. That in a demand for ratification of a deed of sale of several lots of land (aflFccted with distinct charges and mortgages) for one price, the hypothecary creditors cannot be foreclosed from overbidding until the price of each lot has been ascertained by ventilation, and that the petitioner cannot obtain the ratifi- cation of his title until such ventilation has been made. 3. That the ventilation must be homologated by the court before the moneys deposited can be distributed. 5 L. C. Rep., p. 70, Dewitt, App., Burroughs. Reap. In Appeal : Rolland, Panet, Aylwin, J. See Impenses et Ameliorations. VERDICT. See Jury, Verdict. VERIFICATION D'EORITURE. See Evidence, Verification d'dcriture. " Houiilard vs. Lavasseur. Cons. Sup., No. 35. ;!}> J VERITAS CONVICII. . See Damages, Slander. VICE DU SOL, Builders liability for. See Contract, Builder. VOTES. See Corporation, Election. WAGES. 415 VOYER GRAND. U }sue joined, are See Certiorari, Roads. " Officer Public, Sous Voyer. " Corporation, Actions by. " «* Roads. WAGES. Held, That a servant, who leaves the employ of his master before the expira- tion of his term of hire, does not thereby forfeit wages previously earned. 4 L. C. Rep., p. 26, Beltiveau vs. Sylvuin. C. C. Quebec ; Meredith, J. Held, That in a contract of hiring, the words, " your remuneration shall be " at the rate of £300 per annum," do not constitute a hiring for a year, and that such contract is determinable at the option of either party. 4 L. C. Rep., p. 91, Lennan vs. The St. Lawrence axd Atlantic liailway Company. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That the privilege of a clerk for wages, is confined to wages due at the time of the sale of the goods by the sheriflF. 4 L. C. Rep., p. 174, Earl vs. Caicy, and Opps. S. C. Quebec ; Duval, Meredith, Caron, J. Held, That a servant engaged by verbal or written contract, and dismissed without cause, is entitled to wages for the residue of the term for which he was engaged, and to the value of his board and lodging for the same period. For- tier vs. Allison. K. B. Q. 1811. Held, In an action for salary on account of wrongful dismissal, when there have been irregularities and errors proved in the plaiutifif 's accounts, his discharge will be held justifiable and the plaintiff will not recover wages beyond the date of his dismissal, although the disobedience of orders, prevarication, and defal- cation pleaded, be not proved. 1 Jurist, p. 223, Webster vs. Grand Trunk Com- pany. S. C. Montreal ; Smith, Mondelet, Badgley, J. Held, That a clerk's wages not due, cannot be seized on a writ of saisie arrit. 1 Jurist, p. 270, Mah vs. Adhemar. C. C. Montreal j Bruneau, J. So held in Sternberg vs. Dresser & Evans, T. S. Berthelot, J. 4 Jurist, p. 120. Held, That a merchant is justified in dismissing his clerk before the termina- tion of his engagement for a breach of duty or discipline, such as absence with- out leave, and that the clerk cannot, in such case, recover any subsequent salary, 2 Jurist, p. 103, Charbonneau vs. Benjamin. S. 0. Montreal ; Mondelet, J. Held, 1. That a servant refusing to obey a lawful order of his master, and who is in consequence discharged, can only recover wages to the date of his discharge, notwithstanding proof of uniform good conduct previously. 2. That a clerical error of date in a pleading can be amended at the hearing on the merits, 2 Jurist, p. 277, Hastie vs. Norland. S. C, Montreal; Mon- delet, J. Held, That a merchant's clerk, engaged by the year, if dismissed without cause, may sue for his wages during the time he was out of employment, instead V *i [ 1 * 416 WATER AND WATER COURSES. of suing in damages. Jurist, p. 118, Ouellet vs. Foxirnitr lUt Pre/ontalne. Q. C. Montreal ; Berthelot, J. DfiDOMMAQEMENT givou for cxtra mason work. Cons. Sup., No. 07. Master's Oath. See Evidence, Competency of. Prescription of. See Prescription, Witness, Wages. Wages of Seamen. See Ships and Siiippino, Wages. Privilege of master of steamer for wages, and of material men. Sec Privilege. ' l! 1 1 WAIVER. Of objection as to form. See Appeal, Inscription. Of mortgage. See Reqistration, Builleur de Fonds. See Pleading. See Surety, In Appeal. WAREHOUSEMAN. ^ee Lien, Carrier. See Depot. 1 1 It y ' 1 ^ ... i^^^. 1 WARRANTY. In Insurance. See Insurance, Warranty. See Garantie. WATER AND WATER COURSES. Accession. Held, That an accession to a lot of land situate on the borders of the river St. Lawrence, by alluvial deposits, belongs to the riparian proprietor. 3 L. C. Jur., p. 93, Newton et al, App., ifoi, Reap. In Appeal, 1834. Beaches. Held, That the beach of the river St. Lavnrenoe is in the king's possession. Morin vs. Le/ebvre. K. B. Q. 1816. Held, That the beaches of the north shore of the river St. Lawrence are now vested in the Quebec Harbor Gommissionert, and that they alone have the con- trol and management of the same, as also the right of punishing any person who may encroach upon or encumber them, and that the Trinity Home Act in so far as it conferred any control or management over these beaches, is repealed by im- plication. 11 L. C. Rep., p. 453, Ex parte Lane. S. C. Quebec; Stuart, J. Held, 1. That the 16th Vict., c. 24, does not give the Harbor Commissioners of Montreal the right of bringing an action in the nature of a pet^ory action against the emphyteotic lessees of canal lota at the Lachine canal, complaining WATER AND WATER COURSES. 417 Pnifontaine, C. , No. 67. See Privilege. orders of the river fprietor. 3 L. C. 4. king's possession. Lawrence are now ilone have the con- ng any person who House ^c« in so far is repealed by im- iiebeo ; Stuart, J. bor Commissioners »f a petj^ry action oanal, complaining of uncroachiucnt made by them upon thu bed of tlio rivor St. Liiwrcnco within the Iiarbor, the bod of tho river, oven witliia the harbor, being vestod in tho Crown. 2. That even if they had such ri,u;ht tliey could not maintain a petitory aetion against such lessees inusnmch as they wcro^j/-u^>/tt7«//r» tunitrnjilics, and therefore only an action of bonmga could be maintained. 5 Jurist, p. 155, Ilntlwr Cuvi- vmsioners vs. Hall et ul. Same vs. Lyman ct ul, S. C. Montreal ; Smitli, J. Impkdinq Water Course. Held, That an action in factum can bo maintained against u neigliboring proprietor for impeding a water course, or an aqueduct, by acts done on liis own property. JIarrower vs. Bahin. K. B. Q. 1817. Mills. Held, That the owner of a mill site is entitled to a judgment affirming his riglit to tho enjoyment of the use of tlio water of a stream in its natural course, which has been diverted by a neighbor for a mill on his land, although, at tho date of the action, tho plaintiff had no mill, and did not rcijuiro the use of tho water. 7 L. C. Hep., p. 245, Biissura vs. Blais. S. C. Quebec ; Uowcn, C. J., Meredith, Badgley, J. Held, Tliat whore two proprietors of lots upon the same stream possess water powers, one of which cannot be improved witliout the destruction of the other, the lirst occupant is entitled to have tho dam of the other talcen down. 8 L. C. Rep., p. 132, Dunkerlei/ \a. McCui'ttj. S. C. Sherbrooke ; Day, Short, Driscoll, J, II id, That a superior mill owner has no right to obstruct a river whieli is naviguble et Jlottabla and used for floating lumber, by ooustructing a boom across such river ; and that an inferior mill owner, whoso logs are detained by sach boom, has a right, after reasonable notice, to demand to be allowed to pass his logs, and to open the boom for that purpose, and is not responsible for dam- ages caused by the logs of the other party being carried down the river. 8 L. C. Rep., p. 147, Chapman et al. vs. Cla;: et ul. S. C. Sherbrooke; Sliort, J. Held, In the Privy Council, 1. That by tlie general law applicable to ruiming streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land, for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the cfiect which such use may have, in case of a deficiency, upon proprietors lower down the stream. 2. That he has a right further to the use of it for any purpose, or what may be called tho extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purposes of a mill, or direct the water for the purposes of irrigation. But he has no right to interrupt tho regu- lar flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a serious injury. Semble, That for the purposes of this case, it does not appoar that any material distinction exists between the French and tho English law. 9 L. C. Kop., p. 115, Minor, App., Gilmour, Resp. BB 418 WATER AND WATER COURSES. » I : TIio judgment on the particular factH of tliis case in not horo f^ivon. Hold, That under tlio provisions of tlio 20tii Vict., c. 104, ii proprietor hit. no rif^ht to i-rect a dam, acroHH a rivor, abuttinj^ on the land of the opiiositc pni- priutor, and if u dam so erected, it will bo domoliHlied at the iuHtanee of tlw latter. U L. C. Hop., p. lUG, Joli/ V8, Gagnoti. H. C. Quobec; Chabot, J. pRocfcs Verbal. Hell, On cnt!i)riiri, that the orif^inul proria verbid of a coiirs iTeau inimt bi h()Mioloi,Mtcd and not a copy thereof. G L. 0. Rep., p. 487, Ex parte Viiwnt. 8. C. Montreal; Smith, Vanfelson, J. Rivers — Navigable. Hold, That the banks of navif,'able rivers belong to the riparian proprietors, subject to a servitude in favor of the public for all purposes of public utility. Stuart's Hep., p. 427, Foamier, App., Oliva, llesp. In Appeal, 1830. Held, That navigable rivers have always been regarded as public hif^liwajs and dependencies of the public domain, and flottable rivers ore regarded in tbi' same light. In both the public have a legal servitude for floating down loi,'8 or rafts, and the proprietors of the adjoining banks cannot use the beds of f«uch rivers to the detriment of such servitude. Stuart's Hep., p. 524, Oliva v.s. ^ij. sonnanlt. K. B. Q. 1832. Held, In Appeal, 1. That rivers whether navigable or not, are vested in. the Crown for the public benefit ; and no person, seigneur or other, can excrcisu any right ov>;r them without a grant from the Crown. 2. In an action of damages for stopping of commanication on a navigable river with a boom and chain, it appearing from an agreement between the par- ties, after the commencement of the suit, that the placing of the boom and chain tended to their mutual benefit, the action was dismissed. Stuart's Hep., p. 5G4, Boisaonnault, App., Oliva, llesp. In Appeal, 1833. Rivers — Not Navigable. Held, That the rights of the seigneur in Lower Canada to the water of an un- navigable river flowing through his fief, does not entitle one of several co-seigneurs to divert for his exclusive use the waters which had for eleven years been used to supply the mills of another of his co-seigneurs. 3 Rev. de Jur., p. 329, 8t. Louis, App., St. Louis et al., Resp. In the Privy Council, 1841. Held, 1. That rivers non navigables et nonfiottahles are the private property of the riparian proprietors, who have consequently exclusive control over them. 2. That the Jacques Cartier is such a river, and the riparian proprietors have consequently the exclusive right of fishing therein. 10 L. C. Rep,, p. 294, Boswell, App., Denis, Resp. In Appeal : Lafontaine, C. J., Duval, Meredith, Mondelet, J. ; Aylwin, J., dissenting. Servitude. As to right of property in water courses. See 1 L. C. Rep., p. 31, Lane et al. vs. Duhord. S. C. Quebec ; Duval, Meredith, J. WILL. 411» B mvcn. , 11 proprietor lias [' tho opiKwito pro- \\o instnnco of iho Chttbot, J. teo 5i(rs iVcau must bo iJx j)ar(c Vincent. riparian proprietors. ,09 of public utility. ppcal, 1830. I us public liif;liw:\ys i arc regarded in tk' bating down logs or ISC tbo beds of such I. 524, OUoa vs. Bis- not, are vested iu. the itber, can exercise iiny cation on a navigable iicnt between tlic par- f the boom and chain mart's Rep., p. 5W, to tbo water of an un- of several co-seigneurs leven years been use«.l de Jur., p. 320, St d\, 1841. re the private property ve control over tbem. >ariaa proprietors have I L. C. Bcp., p. 2W, I. J., Duval, Meredith, .Bep.,p.31,i>a"'«'' An bypotlit'oary action was brout;ht by tho executors of ^Inie. Tascliorcau, after tlio year and a day, under a notarial obligation by tho Hel;;iii(>r D., liyiiu- thecating (in 18;}(]) all hiH property, including an ininiovablo alleged to iiavc been ac(|uired by defendant from the seignior in 1831), for a constituted rent of £50. The deed thus given t(» defemlant conveyed only u right t<» make use of the water of the river lleaiiport to turn certain mills on a lot acijuired by the def ndant from third parties named in the deed. The defendant made a tltUiii.sst: mcnt of tho right of servitude mentioned, on tho contestation of an intervening party, ecssionnairc of the rente comtitnt'r, who had also sued tho defeiulant per- sonally for the rout, and had been mot with an exception en tjuntntic Held, That the rights (icquircd by tho defendant were not susceptible of being hypothecated and the action dismissed. ScinUr, That an hypothecary action cannot bo brought by executors. 1 L. C. Rep., p. 43, Duchcmitif et al, vs. livdard, and liuisseau, Inter. S. C. Quebec ; Bowen, C. J., Bucquct, Meredith, J. Water Pipes. Damage by. Sec Corporation, Damages. WiiARF — Damages. In an action, by one riparian proprietor against .nother, in damages for building a wharf on the river Beauport, and praying for tho demolition of tho wharf: Held, 1. 'That if tho erection of the wharf caused damage to the plaintiff, ho had suffered none at the commencement of the action, which was brought in the same month in which the wharf was erected. 2. That the demolition of tho wharf could only be ordered on proof that the wharf was built in whole or in part on the bed of tho river. 3. That a riparian proprietor has a right to protect his property, and to reclaim land, by tho construction of whirves or otherwise, which may have been encroached upon by the water, provided no change is caused in tho course of the river which may be prejudicial to his neighbor. 4. No attorney's or other fees to be allowed to the respondent in either court ho being a practising attorney conducting his own case. 11 L. C. Rep., p. 401, Brown, App., Giigi/, Rosp. In Appeal : Lufontaine, C. J., Aylwin, Duval, Mere- dith, Mondelet, J. Aylwin and Duval dissenting as to the merits; 3Ieredith and Mondelet, as to the costs. ' !■ WILL. AOCBOISSEMENT. Held, That a legacy of a universality of effects to husband and wife, such effects to be considered as belonging to the community and as conqiiefs thereof, will pass to the survivor by right of accroissemcnt, the deceased Jiaving died before the testator. 4 Jurist, p. 128, Dupuy vs. Surprenant et al. S. C. Mon- treal ; Monk, J. I r 420 I :r Ni! i '. .; i • ■ t WILL. Children. Held, That a legacy by a testatrix to all her children living at the time of her decease, by equal portions, of all her property, includes her grand-children, issue ot one of the children of the testatrix, such child having died before the opening of the legacy. 7 L. C. Rep., p. 351, Lee es qual. vs. Martin et al. S. C. Que- bec ; Bowen, C. J., Morin, Badgley, J. Confirmed in Appeal : Lafontainc, C. J., Aylwin, Duval, Caron, J. 9 L. C. Rep., p. 37G. In the Privy Council, Held, 1. That the paramount duty of courts in con- struing wills is to ascertain and give effect to the intention of the testator, to be collected from the whole will, and not from any particular word or expression in it. 2. That in the case submitted, a legacy " to all her children livinr/ at thet'imc of her decease " does not include the grand children of testatrix, issue of one of her children who died before the making of the will. Semhle, That a more extensive signification is often given by the old French law to the word " en/ants " than is generally given in the English law to the word " children." 11 L. C. Rep., p. 84, Martin et al., App., Lee, Resp. Hold, That in the case submitted, the terms children still living, comprehend the grand-children, direct descendants of the testatrix, who hold directly under their grandmother by representation, and not from their mother, the right to the legacy of the immovable property by them claimed. 2. That the only effect of a judgment of confirmation is to do away with mort- gages, without in any way fortifying the title deed, which remains notwithstand- ing such ratification, with all its imperfections, 11 L. C. Rep., p. 18, Glack- mcjjcr vs. Mayor, d'c., of Quebec, and Lemieux, Inter. S. C. Quebec ; Tasche- reau, J. Delivrance— Legacy. Held, That " Le mort saisit le vif." A legacy therefore vests in the heir at law and must be divested by the action en delivrance de legs, or by his own voluntary deliverance. Camphell vs. Shepherd, K. B. Q. 1819. Held, That a widow cannot maintain an action, under her husband's will, for a debt left to her, payable to him solely, until she has obtained a delivrance dc legs. Coupeau vs. Chamberland. K. B. Q. 1818. Held, Thr.t when the testator, by his will, disposes of the whole of his cstatfi and succession, and leaves legacies to his heirs, it is not necessary for them to renounce his succession, and their action en delivrance must be brought against the executor of the will, whose duty it is, if there bo other heirs, to call them into the suit. Gesserou vs. Canac. K. B. Q. 1816. Held, That a K-gatee can maintain an action of revendication against a tiers detcnteur of his legacy, before he has obtained delivrance de legs. Morin vs. Peltier. K. B. Q. 1820. Held, That a legataire universel who is also executor, can maintain an action as legataire for a debt due to the testator against a third person witl out proving a delivrance de legs. Duclos vs. Dupont. K. B. Q. 1820. t .., WILL. 421 ' I Held, That an executor, after the expiration of his executorship and after account rendered, cannot be sued en Jelivrance de legs. Golron vs. Corrivaux. K. B. Q. 1820. Held, That in an action en exhibition de litres, conclusions upon the titles exhibited must be fylcd and an issue raised thorcon. Rtx vs. Saul, K. 13. Q. : Held, That in exhibition de titrcs the defendant, if he be not a censitaire of the plaintiff must plead the fact by exception and sliow what he is, ex, grd. that he is tenant, &c. Blanchct vs, Thericn, K. B. Q. 1S17. As to delivmncc dc legs and interest beiuL; payable by executors and heirs. See Torrance vs. Torrance. Cond. Hop., p. 1>5. Held, That since the passing of the 41st Goo. 3., c. 4, the delivrance dc legs, required by the French law under the operation of the Custom of Paris, lias ceased to be necessary. 11 L. C. Eep.,p. 204, Blauchet et al, App., Blanchct, Resp. Aylwin, Mondelet, Badglcy, J. ; Lafontaine, C. J., Duval, J., di.'«scnting. Held, That the effect of a universal legacy is such as that no demand oi deJiv- rancc de legs is necessary. 3 Jurist, p. 12, Hubert et al, vs. Dorion et al. S. C. Montreal ; Smith, Mondelet, Badgley, J. Held, That Ic mort saisit le vif, and therefore a common legacy vests in the heir at law and he is not divested of the same until a delivrance dc legs has been obtained. Stuart's Rep., p. 138, Campbell vs. Shepherd, and Chartier, 0pp. K. B. Q. 1818. See case of Roijal Institution vs. Desricicres, See Corporation, Mortmain. Held, 1. That delivrance de legs by the executor is essential to vest the legacy in the legatee, and that in an action by the cc^sionnairc of such legacy, such delivrance must be proved. 2. That the rights of co-vendors, selling in different qualities, will not be pre- sumed to be equal. Action dismissed. 4 L. C. Kep., p. 121, Holland vs. 27a'- hodcau, S. C. St. Francis; Day, Short, Caron, J. Held, In an action by plaintiff, claiming £GGG 13s. 4d. under the clause in the will, quoted, against thi.' defendant as curator to the substitution created by the will, that plaintiff was not entitled to the sum of money thought to be recovered, the bequest giving her only ^7/e interest of the sum and the power of disposing of it by will, but not vesting in plaintiff the sum of nioiioy absolutely as proprietor, Bequest, " I also bequeath to Margaret XelJillivray, my natural daughter, " now at Quebec, the yearly interest of £ll>GG 13s. 4d. currency, to be paid to " her yearly, and every year, in quarterly payments, during her natural life, " which said sum of £1G66 13s. 4d. I will and direct, that my said executors " shall place out on securities at legal interest at tliiir discretion, ibr the benoQt " of the said Magdalen McGillivray, as aforv said, and after the death of the said " 3Iagdalen McGillivray, if she shall leave alive any children or child lawfully " begotten in marriage, I then give and becjueath the said .£IGGG 1 3s. 4d. to " such child or to such children, to each their just and equal proportion thereof, "share and share alike; but in case the said Ma>;dalcn McGillivray shall die, " leaving alive no children or child lawfully begotten in marriage, I then and on " that contingency will and direct that the sum of £1000 part and parcel of the m *• t i ii ' i 1 ^ 1 1 422 WILL. " aforesaid sum of £16G6 13s. 4d, shall belong to and form part of my residuary " estate, and shall be as such, the property of ray residuary le 143, Duchcsnwj et al. vs. Bedard tO Boisscuu Inter. i i, I. That hypothecation is only created on the property of an executor fii,ui ihe time of his acceptance by authentic acte of the executorship. Will dated 1815, registered 1849. 2. That the acceptance must be registered to enable a party clav.ung under the will to rank by privilege on the estate of the executor over a mortgage credi- tor whose claim was registered in 1848. 3 L. C. Rep., p. 440, David vs. Hays, and IIoijs ct al., 0pp. S. C. Montreal ; Day, Smith, Mondelet, J. Held, That a mortgage on the lands of an executor does not date from the registration of the ..'ill, but from the registration of an authentic acte showing that he has accepted the executorship. 9 L. C. Hop., p. 7, Lamothe vs. Hutch- ins, and 0pp. S. C. Montreal ; Day, J. Held, 1. That it is not competent for one of two joint executors to bring an action without the consent of his co-executor. 2. That in case such executor could proceed without the concurrence of his co-executor, he must do so in his own name alone. 4L. C. Rep., p. 103, Clvmvnt (tal.xa. Gecr, and Pettis, plaintiff oi dcsavcu, and Drummond ct al., defendants aidesuvcu. S. C. Montreal; Day, Smith, Mondelet, J. Same case, Cond. Rep., p. 23. HelJ, That during the pendency of an action to account against an executor, the court will order an alimentary allowance to be paid to plaintiifs, the heirs of the testator, notwithstanding the declaration of the executor that he has no funds in his hands, in consideration of the length of time (sixteen years) elapsed since the death of the testator, and that the legacies were for aliment. 4 L. C. Hep., p ( flit- 1 ■: ' It i'r '■ [ ii:r ! ; .If ' '■ Mj ■' ■ 424 WILL. i > ■ • i I p 1 ■ 1 1 ' p. 127, Hart et ah vs. Mohon et al. S. C. 3Iontreal ; Smith, Vanfelson, Mon- delet, J. Held, Tliat, in the case submitted, the action was rightly brought, althougli one of the plaintiffs, who sued as executrix, under a will made in Ireland, did not allege in her declaration that by the law of Ireland an action accrued to her as such executrix. 10 L. C. llip., p. 350, Grubigcr ct ah, App., Parkr., Rpsp. In Appeal : Aylwin, Mondelet, Badgley, J. ; Lafontaine, C. J., and Duval, J., dissenting. Held, That the administration of a testamentary executor is a mandate of a private character which can only be delegated by a testator, and is not a trust of a public nature which can be imposed by a judge. 1 Rev. do Jur., p. 109, Oiigij, App., Gihnov, Resp. In Appeal: Rolland, Mondelet, Day, Gairdner,J. 1845. Held, A claim of a legacy by privilege of hi/j^otJiequa by an ante-nuptial con- tract, against a fund in the hands of the sheriff, the proceeds of a sale under exe- cution of real estate belonging to the husband who was the sole executor and residuary legatee of his wife, was dismissed, it not appearing that the fund was the produce of any portion of the property included in the marriage contract, or that the legatee had any right of priority to a judgment creditor. 2 Rev. dc Jur., p. 47'1:, Smith, App., Brown, Resp. In the Privy Council, 1837. Executor's Account. Sec Action to account. See Executor. Held, That executors of a will who have not, by its terms, control over immo- vables, cannot intervene to take up the instance in a petitory action, the plaintiff being dead. Intervention dismissed. Ball vs. Lamhe, and Scrivcr ct ah, Inter. S. C. Montreal ; Cond. Rep., p. 36. Holograph. A testator possessed, at the time of his decease, of property belonging to the succession of his wife, deceased, by a holographic will, bequeathes all the property of which he might die seized to his heirs and legatees, who were also his wife's heirs, under the penalty, if any of them contested his will, that their share in his succession should be forfeited. In the making of such partition he directs his executors to act for some of the legatees who were minors, and for another who was married, without the authority of her husband for that purpose being requisite, and whose share they should administer during the husband's life, paying her the rents, &c. Held, 1. That the will was valid, but that its dispositions could only be carried into effect so^far as they affect the succession of the testator, and that they could not in any manner apply to the succession of the testator's wife, of which his legatees were the heirs, and of which they were in law seized from the day of her death, and that one of the executors having renounced the execution of the will, the other had saisine of the testator's succession, to carry his will into effect.. 2. In an action against several heirs, it is not a valid objection that all of them were not originally made defendants, if, in the progress of the suit, they have been ! I • WILL. Vanfelson, Mon- ffht, althoudi ono ip., Parke, Rcsp. r., and Duval, J., 425 Stuart's Eep., p. 394, made parties by an interlocutory judgment of the court. VIger et ux., App., Pothieri Resp. In Appeal, 1830. Holograph — Notary. Held, 1. That if a paper writing, contained in a sealed envelope, purporting to contain a holograph will, be opened by a notary public and retained by him after the decease of the testator, such notary cannot keep it of record in his office but must produce the same before a judge that probate may be made, and the will is then to remain deposited with the records of the Court of King's Bench. 2. A notary public has no authority to unseal a holograph will unless in the presence, and by the order, of a judge. 3. A holograph will of personal and movable property is valid by the law of England, and probate may be made thereof according to the Provincial statute, 41st Geo. 3, c. 4. Stuart's Eep., p. GO, Ex parte Grant et ul. vs. PlaaU, Notary. K. B. Q. 1813. Held, That it is essential to the validity of a devise of real estate that the holograph will, in which it is contained, should be entirely written by the testa- tor, and closed by his signature. Stuart's Rep., p. 327, Caldwell^ App., vs. Attn- Gen. pro Rcge. In Appeal, 1828. In FA voR OP Wife. Held, That a will by a husband to his wife, after the passing of the 14th Geo. 3, c. 83, is valid. Des Islet vs. Dupuis. K. B. Q. 1821. Inventory. Held, That where a testatrix bequeathed all her property to her husband en phine proprieti, exempting him from making an inventory, but on condition that he does not remarry, in which case he is bound to account to the heirs ; the order of a circuit judge that an inventory shall be made before taking off the seals, which have been affixed at the instance of the heirs, is a prudent judgment con- sistent with the interests of all parties and not to be disturbed. 3 L. C. Rep., p. 435, Ex parte Cardinal and Belinge, tutor. S. C. Montreal (Weekly Ses- sions) ; Day, Smith, Vanfelson, J. Legacy. Held, 1. That a bequest of a farm with all the stock, implements and cattle, is a special legacy, and that to charge such legatee with the payment of debts of the testator, the plaintiff must prove that the testator had no other estate or effects. 2. In the absence of such proof, parol evidence of a promise by the legatee to pay the debt sued for, is inadmissible. 1 Jurist, p. 286^ McMartin vs. Gareuu. S. C. Montreal ; Day, Smith, Mondelet, J. Held, 1. That a legacy by a father to his daughter conditioned upon her not doing certain things is forfeited by her doing such things. 2. That it is a fatal variance to allege in a declaration an absolute legacy when III m lui. 1! 'ir-nw^ 1 in; i' ir!,, ! 4: . ' .i£;£li ili. p. Ml!' «!!!;; i.: ! 426 WILL. it was only conditional as above mentioned. 2 Juriat, p. 91, FrcUgh vs. Sey- mour. S. C. Montreal ; Day, Mondelet, Chabot, J. LeQAOY — FiDEI-COMMIS. On a bequest by a testator of real estate to his wife during her natural life and after her decease to the testator's son, George, during his natural life, and after his decease, or if he and testator's wife should both have died before the testator, then to the eldest son of the body of said George, lawfully begotten, and the heirs of the body of such eldest son, and in default of such issue, to the second, third, fourth, and all and every other son or sons of the said George, one after another, by priority of birth, and to the children of such sons ; the elder of such sons and his heirs always preferred to a younger son, and in default of such male issue, a similar bequest to the daughters : Held, That the eldest son of George having survived him and the testator's wife, took the said bequest in full property without being charged with any fidci- co)nmis or trust in favor either of his children or of his brothers and sisters, who could have claimed the said bequest only conditionally, and in default of the eld- est son taking the bequest. 8 L. C. Rep., p. 481, Piatt, App., Charpenticr, llesp. In Appeal : Lafontaine, C. J., Duval, Caron, J. ; Aylwin, J., dissenting. LEaACY — Interest. A testator bequeathed to his son William and his heirs male for ever, so far as the laws of the Province would permit, one-half of a specified farm described, and the other half to Duncan, another son, and his lawful male heirs for ever, naming the two his universal legatees, giving the share of the one dying without lawful issue to the survivor, and, after enumerating the moneys belonging to him, bequeathes " to Jane Mcintosh, Church street, Inverness, the sum of £50 '• sterling out of the above moneys, annually, during her natural life, which my " executors will regularly transmit to her." The will was not registered. William died without issue before Duncan, and the real estate of Duncan, also deceased, being brought to sale, Jane Mcintosh fyled an opposition ii fin de conseroer, claiming the proceeds as having a mort- gage under the will for payment of the arrears of the £50 bequeathed to her. On contestation by the defendant, widow of Duncan, and tutrix to a minor child, issue of her marriage with Duncan, and by two chirographary creditors : Held, 1. That acy from his penitent. 2. That any disabilities which may have existed with regard to the confessor in such case, under the old French law, have been removed by the 41st Geo. 3, 0.4. 11 L. C. Rep., p, 119, Harper vs. Billodeau. S. C. Quebec; Tasche- reau, J. Legacy — Usufruct. A vife, separated as to property from her husband, makes a legacy to her hus- band of all her property, " pour cependent n'en pouvoir disposer en plein pro- '• priete, qu'en favour do leurs doux enfans, lui laissant neanmoins le pouvoir de '■ Ics avantager tr6s int^galement, et de la manicure qu'il croira ct jugera conven- •' able," and constituting the husband her universal legatee : After the death of his wife, the husband makes to his son, the defendant, a donation entre vi/s of three immovables, two of which were conqiiefs, and also of certain movables, and by his last will confirms this donation, and bequeathes to him all the other property " which may belong to him at the 'day of his death." Qiien/, 1. Whether this will and donation include the property of the wife, although no mention is made of such property ? 2. Whether the legacy of the wife was of the jyroprieti or only of the usufruct ? 1 Rev. de Jur., p. 140, Marqmt ctux. vs. Marcile. Q. B. Montreal, 1845. 'ill' • " ■ ' 1 ! ': 1 ( II 428 WILL. Legacy — Universal. Hckl, 1. That a universal legatee cannot refuse to pay a particular legacy upon pretext of the insuflScioncy of the movable property, if ho has not rendered an account of the estate and offered to give up the same. 2. That lie may in such case be condemned to such payment individually and in his own name. 3 L. C. Hop., p. 133, Lenoir vs. Uameliii et al. S. C. Montreal ; Smith, Vanfelson, J . Held, That legatees cannot bring an action against a third party, purchasor from the universal legatee of real estate included in the will, although the pur- chaser be charged by his deed to pay them, there being no privity of contract. Qucrif .' Whether several legatees can join in the same action as plaintiff?;. ,'] Rev. de Jur,, p. 250, Rauiford et ah vs. Clarke et al. Q. 13. Montreal, 1848. Held, That an action against a Ugatairc universel is good without an aver- ment that he is sole Ugataire. It is the business of the defendant, if Jiere be another, to plead the fact. Gagnon vs. PugL K. B. Q. 1818. LEGITIME. Held, That where a will exists, a demandc en Ugitimc is thereby excluded. 1 Jurist, p. 1G3, Qucntin vs. Girard et ux. S. C. Montreal j Day, Mondelet, Chabot, J. Probate. Held, 1. That a judge of the Superior Court at Montreal has no jurisdiction either to receive the affidavits of the subscribing witnesses to a will, or to grant probate thereof, it appearing that the testator died in another district. 2. That application must be made to a judge or to the prothonotary of the court within the limits of its jurisdiction. 10 L. C. Rep., p. 451, Ex parte Sweet. S. C. Montreal ; Smith, J. Publication of. Held, That the want of publication and insinuation of a will, cannot be op- posed to the possessor aninio domini suing en homage, nor by a party deriving title under the will. 1 Jurist, p. 137, Devoi/au, App., Watson, Resp. In Ap- peal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Registration op. Held, That under the registry ordinance 4th Vict., c. 30, all wills " made and "published " previous to the 31st December, 1841, must be registered to enable the legatees to rank according to the date of mortgage as against other registered mortgages. 1 L. C. Rep., p. 435, Dtichesnay vs. Bedard, and Opps. S. C. Quebec ; Bowen, C. J., Duval, Meredith, J. Held, That no hypotheque attaches to the property of an executor by reason of the registration of the will. 2 Jurist, p. 278, Lamothe vs. Boss, and divers 0pp. S. C. Montreal ; Day, J. WILL. 429 Revocation of. Hold, That the birth of a posthumous child revokes the will of its father par- tially. Stuart's Rep., p. 103, Hanna vs. Hnnna. K. B. Q. 181G. Hold, That a testator may revoke a will by any writing signed by him ; 8uch writing need not bo written by him nor possess the formulities of a will. 1 Jurist, p. 88, Fisher vs. Fisher. S. C. Montreal ; Smith, Mondolot, Chabot, J. Right of Tiiihd Party. Held, That a debtor sued by the heir of his creditor cannot set up against such demand the bequest of the debt by the creditor to a third party, notwith- standing notice to the defendant by the executor that ho would demand such bequest. 3 L. C. Rep., p. 145, Dcneau vs. Frothingham. 8. C. Montreal j Day, Smith, Mondelet, J. Substitution. Where A bequeathed property to B with substitution at B's death in favor of his eldest son, who died without issue before B : Held, 1. That B's surviving son, though second in point of birth, was entitled to claim under the substitution as the eldest son. 2. That a sale of the property in question by B and his deceased eldest son was null and void quoad the claim of the surviving son of B under the substitu- tion, the substitution not being open until the death of B. 9 L. C. llcp., p. 23, McCarthy, App., Hart, Resp. In Appeal : Lafontaine, C. J., Aylwin, Duval, Caron, J. Same case, 3 Jurist, p. 28. Held, That the sale of real estate substituted, cannot be opposed so long as the substitution is not open. 4 Jurist, p. 358, Trust and Loan Company of Upper Canada vs. Vadehoncoeur, and Vadehoncceur, 0pp. S. C. Montreal ; Berthelot, J. SuaoESTioN — Incapacity. Held, In an action to set aside a will for suggestion and incapacity by reason of unsoundness of mind, that clear proof is necessary of the facts alleged, and that where the evidence is contradictory, the presumption is always in favor of the tes- tator. Action dismissed, p. 20. Clarlee vs. Clarke et al. S. C. Montreal ; Cond. Rep., To Bastard. Held, 1. That a devise to a bastard, adulter in, not competent by the French law, when the will was made or when the divisor died, to accept such bequest, is good and valid if it be a conditional one,, as a substitution, and if at the period when the entail took place {il I'ouverture de la substitution) the disqualification of the devisor has been removed. (42nd Geo. 3, c. 6.) 2. That executors have no quality to make a reprise d'instance if such will relates to real property. 2 Rev. de Jur., p. 1, Hamilton et al., App., Prender- leath, Resp. In Appeal, 1845. I ^i| I m 480 , 1 l!H:i 1 ■! 1 I . : !■ ■ WILL. Will — Form of. Held, That a will executed by a notary in prcflcnco of two witnesses, (tne oj' them under the ago of twenty, is not valid ua a notarial will, but is valid accord- ing ti) the English law, followed in that respect in Lower Canada, the notary and witnesses being considered as sufficient witnesses for the attestation of tliu will- 7 L. C. Rep., p. 277, Lambert, App., Gauvreau et ux., Resp. In Appeal ; La- fontnine, C, J., Duval, Caron, J. .Same case, 1 Jurist, p. 206. Held, 1. That a notary who receives a testament solennel is not bound to mention that ho wrote the will. 2. That a person prohibited from alienation during his life, may alienate by will. 3 Jurist, p. 48, Bourassa vs. Bedard. S. C. Montreal ; Smith, J. Held, That the absence of express mention that the witnesses were present at the reading of a testament solennel does not render the testament null, if it ap- pcfirs by terms equivalent to have been so read. 5 Jurist, p. 255, Duhi ct ux. vs. Cluirron dit DucJiurrni'. S. C. Montreal ; Smith, Vanfelson, Mondclet, J. The Quebec Act having provided that every owner of lands, goods, or credits, who has a right to alienate the said lands, goods, or chattels, in his or her life- time, may devise or bequeath the same at his or her death, according to the laws of Canada, or according to the forms prescribed by the laws of England ; Held, That a will invalid according to the French law, and not executed accord- ing to the statute of frauds, so as to pass freehold lands in England, \vill not pass lands in Canada, although it would pass copyhold or leasehold property in England. Stuart's Rep., p. 581, MeiJdejohn, App. The Atti/.-Gen. and Sir John Caldwell, Resp. In the Privy Council, 1834. Generally. Held, That a clause in a will that the usufruct of certain property left to the testator's wife, should become null and void on her re-marriage, is not contra bo7ios mores, and will be enforced. 1 L. C. Rep., p. 102, Forsyth et al. vs. Wil- liams. S. C. Montreal ; Day, Smith, Vanfelson, J. Held, 1. That the clause in a will, that the testatrix was sained' entcndement, is matter of style merely, and may be contradicted by evidence. 2. That the notary is not bound to write the original will with his own hand. 1 L. C. Rep., p. 11, Clarke vs. Clarke et al. S. C. Montreal ; Smith, Vanfelson, Mondelet, J. Held, That a devise by a husband of his wife's share in the communauti, on charge of paying her a life rent is valid, if she accept the condition annexed to such devise. 3 L. C. Rep., p. 45, Boy vs. Gagnon, In Appeal : Stuart, C. J., Panet, Aylwin, J. ; Rolland, J., dissenting. Testament Faux. See Inscription pe Faux. Of immovables by minor, invalid. See Action Petitoire, Tradition* 9 L. C. Rep., p. 385. Foreign Letters of Administration, Effect of. See Bills and Notes, Prescription. WRIT. 431 el is not bound to Unmmitei> power in. Sec Donation. Legitime. Executors, Action against. See Bills and Notes to abncntoo. WRIT. Retdrn op, before return day. Sea Capias, Affiilnvit. Irregularity in. &cCerti()Uari, Writ, Return. Service of original, valid. Sec Writ of possession. Writ of Possession. To call in Garant. Sec Garantie, Divisibility of. Form of. See Landlord and Tjsnant, Form of Writ. Languaqe op. See ** " " " See Decket, Hi' 'J J > N (1 r 1 ■^ f :• ■' . :; ii ''■ .a,. Ij- W , ■'M' ^i. SUMMARY OF JUDGMENT .iNDKniD UNDIR THE SEIGNIORIAL ACT OF 1854 Quebec, Uth of March, 1866. Present :— The Honble. Sir Louis Hipvv lyte Lafontaink, Bt. Chief JuHtice of the Court of Queen' » Bench. The Honblo. Edward Bowen, Chi(f Justice of the Superio Court. Tko Honblo. Mr. Justice Aylwin, Mr. Justice Duval, Mr. Justice Cj Mr. Justice Day, Mr. Justice Smith, Mr. Justice C. Mondelet, Mr. Justice Meredith, Mr. Justice Short, Mr. Justice Morin, Mr. Justice Badqlet, ; \ylwin, ■) PiusiU Judges of thr )uvAL, > sdiil Court of Queen's LvRON, ) Bench. Puisni Judge* of the said Su- perior Court. Gins bt Rentes. ▲MSWUl Dominium directum to Seigbior } Dominium utile to censitairo ) ' ' Dominium directum ) ? 3 4 Dominium utile defined > ' Obligation to alienate lands en fief. 5^7 Effect of edict of 1 Til as to concessionB 8 OoDcessioa d titft de renderances obligatory !•> the laws previous to the cession of Canada 9 Origin and extent of obligation to concede 10 The law provided means for compelling concession through the Governor, Lieut. Governor and Intendanl 11, 12 Hates of concession, how governed? 13 Rates and their variations 14, 15 Arrets of 6th July, 1711, and 15th March, 1732, and declaration of 17th July, 1743 were in force at the cession 16 CC i i 1 • i 1 1 s I ■ il 484 SUMMARY OF JUDGMENT. &HBW8S. Domininm of Seigniors, obligation to concede at rent charge, interdiction from Belling wild lands ^7 Laws regulating the essence of the feudal contract were iTordre publique, and con- tracts in violation thereof null plena jure is, 19 20 These laws were in force at the passing of" the Seigniorial Act of 1854" 21 Jurisdiction in the Governor and Intendant to enforce arrSt of 1711 between the cession and the said act of 1854 22 All the powers of the Intendant in civil matters have devolved upon the civil tri- bunals of the Province 2 J Power in these tribunals to declare the nullity of contracts in contravention to laws d'orilre publique 24 By the law in force before the act of 1854, a censitaire could not be relieved from excess over the customary rates 25 PowKits. Powers of Seigniors over navigable rivers 26 Rights of fishing — lods on mutation of beaches between high and low water mark. . 2T Rights of Seigniors over unnavigable rivers and streams 28, 29 Rights of property in rivers not from droil de justice but from grant 30, 31 Property in unnavigable waters divisible into direct and useful domaine 32 RiORT or Banalit^. All S«. ^ Effect of arrit of 1732 ^'^^ Bights lo be invoked by Seigniors before the Gommissioners '* AH8WBB. ction from 17 !, and coa- 18, 19, 20 11 21 between the 22 le civil tri- 2;! avention to 24 elieved from 2^) 26 rater mark.. 2T 28, 29 [ 30, 31 ie 32 olishing sucU 33, 34 [ 35 W 36- vaters passing 37, 38 39, 40 41 42 %tivt for lands 43 44 ion of oblign- 45 4& 1,6 9,10 ... IS SUMMARY OF JUDGMENT. 485 Counter Questions fob Sir Educnd Filueb. ASSWUt. BmoT or Enolisu Criminal Law on the arrets of 1711 and 1732 4 These arrdts have not fallen into desuetude 6 Are not rcpealpil by Imperial Acts 3 Geo. 4tb, c. 19, C Geo. 4tb, c. 59 7 Counter Questions for Mrs. Habwood. Effect of the above Imperial Acta on Seigniors commuted under them. I Effect of clauses in contract as to alienation of lands contrary to law, although not immoral 2 Power of Commissioner over such contracts, and over Seigniors electing to main- tain the provision of the Imperial Acts referred to 3,4 Counter Questions for John Malcolm Fraser. Effect of grants en fief from the cession to the act of 1854 I For Hon. Jean Roch Holland. As to rights of Seignior to flood lands I SUMMARY OF THE JUDGMENT ON THE QUESTIONS SUBMITTED BY THE ATTORNEY GENERAL. Oens et Rentes. 1 & 2. (1) — Under the Custom of Paris, the eflFect of the feudal contract, whether by subinfeudation, or accensement, was to divide the estate between the seignior of the /ief or his subfeudatory or tenant, censitaire, in such manner as to retain, in the former, the immediate demesne, dominium directum, and to con- vey the useful demense, dominium utile, to the latter. " The subfeudatory could ' dispose of his useful demesne, djninium utile, and convert it into an immedi- ' ate demesne, dominium directum." (*) (2) (V. 3 & 4, § 3.) ii & 4. — § 1. The immediate demesne consisted of the duties or dues, obli- gations or redevances, to which the subfeudatory or tenant, censitaire, was sub- jected ; the useful demesne consisted of the produce of the land or thing subin- fcvdated or accensie. Previous to the subinfeudation or accensement, both the useful and immediate demesnes were united in full demesne in the seignior. (*) § 2. Woods and waters not navigable might form part of the useful demesne. (For the aflBrmative, 11 for the negative, 1.) f § 3. The subfeudatory, in like manner, before his infcudation or accensement had the full demesne, saving the rights of the dominant seignior, and also re- tained an immediate demesne over what ho had himself infeudated or accensi. (F. 11, A. 1.) 5. — Under the Custom of Paris, the seignior was not obliged to alienate his lands held en fief, but when he »i 436 SUMMARY OP JUDGMENT. •were of the essence of the feudal system, aceording to the 51st article of the Cus- tom of Paris. (''■) 6. — The 6th question, " was it necessary to render subinfeudation or aecente- '• ment binding in Canada," presenting no legal point for decision, this Court abstains from an answer to it. (*) 7. — The intention of the French Kings was to promote the settlement and cul- tivation of the lands of the country ; but the concession of lands for that purpose ■was not made obligatory by any law anterior to the arret of the 6th of July, 1711, (F. 8, A. 4.) 8. — The concession of lands to settlers for cultivation, was rendered obligatory by the arret of the 6th of July, 1711. (■'=) 9. — Before the cession of the country, the laws obliged the seigniors to grant {concedcr) their lands, on demand, at a rent charge, (d titrc de rcdevances), and this obligation limited the exercise of the rights of the seigniors in the disposal of their lands. (*) 10. — ^ 1. This obligation did result from special laws affecting Canada, par- ticularly the arret of the 6th of July, 1711. (*) § 2. The obligation to concede was not contained generally in the grants of .seigniories ; but it was stipulated in a few of them. (F. 8, A. 4.) 4j 4. It extended to every seigniory, without regard to the motives of the grant, but might be controlled by a special derogation in the royal grant to the seignior. (*) § 5. The arret of 1711 applied to royal grants already made at the time of its promulgation, as well as to those made subsequently. (*) 11 & 12. — The laws did provide means for compelling seigniors to concede their lands ; the governors and intendants were invested with the necessary pow- cTB for compelling them, in ciiscs where they refused, and upon complaints to that effect, according to the dispositions of the arrit of the 6th of July, 1711, of that of the 15th of March, 1732, and of the declaration of the 17th of July, 1743. (*) 13.— § 1. The rates of the concession of lands in the seigniories were not regu- lated by special laws nor by custom ; (F. 10, A. 2.) § 2. Nevertheless, whenever the governor and intendant were called upon to (;oncedeu[ n the seignior's refusal, the arret of 1711 decided that the concession nhould be made " upon the same rights as imposed upon the other conceded lands in the same seigniories." (^i^ § 3. The grants to the seigniors did not regulate the act of concession, ♦^xcept in four of those which have come to the knowledge of the court. (F. 10, A. 2.) ^5 4. Upon the question " were the concessions to be made at an annual rent " charge (d titrc dc rcdevances annucUcs) only?" the court is equally divided. (F. 6, A. 0.) It will be seen further on, that the majority of the court agreed ^'"*iiiii!ft SUiMMARY OP JUDGMENT. 437 ;iolc of tho Cu«- dcrcd obligatory idc at the time of ries were not regu- to this proposition, so far as the reservations are concerned, with one exception ; (No. 39, § 1. F. 7, A. 5.) This explains the reason why the court did not adopt it here in the strongest terms, " for an annual rent charge only." § 5. Tho rate of dues was not established by custom, except in the case of a concession made by the governor and the intendant. (C. 10, A. 2.) 14. — The uii'^i; varied in amount at the promulgation of the arrit of the tJth of July, 1711 ; this arret docs not establish any fixed rate ; the dues have varied since the promulgation of that arrlt, but have gradually increased. (F 10, A. 2.) 15. — The arret of the 6th of July, 1711, does not establish any fixed rate, except in case of tho refusal of the seignioi to concede. (F. 10, A. 2.) 16.— § 1. The arret of the 0th of July, 1711, the arret of the 15th of March, 1732, and the declaration of the 17th of July, 1743, were in force at the time of the cession of the country ; (*) § 2. And these laws were generally observed up to that time. (F. 11, A. 1.) 17. — § 1. According to the laws of tho country, the proprietors of ftefs had the full and entire property in their lands, before they had conceded them, (F. 11, A. 1.) § 2. That is to say, that the useful and full demesne were united in them. (P. 11, A. ].) § 3. The arret of 1711 required seigniors to concede without exacting u money price for the concession (deniers d'entrie). The arret of 1732 prohibited the sale of wild lands (terres en bois dehout), under the penalty of nullity. (*) § 4. The seigniors were required to concede at a rent charge. (F. 11, A. 1.) § 5. The prohibition to exact a money price applied only to uncleared lands {terres non di/richies.) (*) 18, 19 & 20. — § 1. In so far as those laws ha^e relation to the tenure, and regulated the essence of the contract, they were laws of public policy, (d'ordre public.) (F. 7,A. 5.) § 2. Taking them in that sense, individuals could not contravene them. (F. 8, A. 4.) § 3. Contracts in contravention of those laws, in so fur as they were thus of public policy, were not binding, but were null, {plenojure.) (F. 8, A. 4.) 21. — Those laws were in force at the passing of the Seigniorial Act of 1854. (P. 9, A. 3.) 22. — Upon the question, " since the cession, did there exist a tribunal compe- " tent to exercise the power conferred on the governor and intendant by the airet " of the 6th of July, 1711, relating to the concession of seigniorial lands," the I'oart is equally divided. (F. 6, A. 6.) 231 — All the JUDICIARY powers, exercised by the intendant in civil matters, before the cession of tho country, have devolved upon the civil tribunals of the province. (*) I: I •n • < J. ( 1 ' 1 I ' t 1 1 ■I ■ i 488 SUMMARY OP JUDGMENT. 24. — These same tribunals were competent to declare the nullity of contracts made between private individuals in contravention to the laws above mentioned. (F. 11, A. 1.) 25. — The tenants (censitaires) to whom concessions have been made, since the cession, at higher rates than those which were customary before that time, have no right to bo relieved from the excess of those dues. (F. 11, A. 1.) Navigable Rivers, 26. — Seigniors had no other rights over navigable rivers than those specially conveyed to them by their grants, provided these rights were not inconsistent with the public use of the water of those rivers, which is inalienable and imprescript- ible. (F. 11, A. 1.) 27. — § 1. In seigniories bounded by a navigable river, seigniors could law- fully reserve to themselves the right of fishing therein, or impose dues on their tenants (^censitaires) for the exercise of that right, when the right of fishing in the same had been granted to them ; but they could not make the reservation, or impose the dues, without grant and as seigniors only. (F. 11, A. 1.) § 2. Where the right of fishing in navigable rivers was granted to seigniors, the tenants (^censitaires) could not have that right without special concession. (F. 11, A. 1.) § 3. The rights of seigniors in tidal navigable rivers over the space of ground covered and uncovered by the tide, are derived from special grant, and without thp>, extend to high water mark only ; in navigable rivers not subject to the tidal flow, the rights of seigniors extended to the water line, saving all legal servitudes, und without prejudice to the special grants in navigable rivers above mentioned . (F. 11, A. 1.) § 4. The mutation of beaches, between high and low water mark, on the river St. Lawrence, or in other navigable rivers, held by seigniors by virtue of grants, as aforesaid, and conceded by them, entitles seigniors to the mutation fine (lodn et ventes) in the same cases in which it would have accrued in other sales. (F. 11, A. 1.) Non-Navigable Rivers. 28. — § 1. By the grant of the Jief to the seignior, he became proprietor of the non-navigable rivers, rivulets and other running waters, which passed through or were wlolly or in part within the fief; the same principle applied to the pro- perty in such rivers and rivulets to the middle of the stream. It is also in virtue of the same grant, that he became proprietor of non-navigable lakes as well as of ponds. (F. 10, A. 2.) § 2. He was thus proprietor of these waters in manner aforesaid, as belonging to and forming a portion of the Jief; unless they were excluded by the grant ; subject nevertheless to legal servitudes. (F. 10, A. 2.) 29. — § 1. At the cession of the country, the seigniors of Canada were lawful proprietors of these non-navigable and uon-flottablc waters, in whole, or to the SUMMARY OF JUDGMENT. 439 ve mentioned . middle of the stream aa the case might be, on the whole of their unconccdcd lands, and might make use of them for industrial or other purposes, to the exclusion of all other persons. (F. 11, A. 1.) § 2. The subfeudatory or tenant, (censitaire), by the subinfeudation or accemt- ment became in the same manner proprietor in whole, or to the middle of the stream, according to the several cases mentioned of these non-navigable and non- flottablc waters, which passed through or which bordered on the conceded land, unless they were excluded by the title ; the grantee (concessionnaire) becoming proprietor of them, was also subjected to legal servitudes, (F. 9, A. 3.) " Never- " theless the general reservations of the waters which the seigniors might have " made, are declared to be null ; (V. No. 39, § 3, art. 4,) from which we must " understand by these words, ' unless they were excluded by the title,' that they '• meant the exclusion of the soil or land as well as the exclusion of the waters." 30. — The right of property in rivers was not a right of justiticu {droit dc jus- tice,) it resulted from the conveyance of and followed the estate granted ; when the estate was conveyed in seigniory, the right resulted I'rom the general laws of property in force in the country, and not from the text of the Custom of Paris, nor from any law specially promulgated for Canada. (F. 10, A. 2) .31. — It was not a right of justitice {droit de justice.) (F. 11, A. 1.) 32. — § 1. The property of seigniors in non-navigable and non-flottable waters was susceptible of division into the immediate demesne and the useful demesne like the property in the soil. (F. 11, A. 1.) § 2. The concession operating this division, conveyed to the tenant {censitaire) the possession and enjoyment of these waters which were within the limits of the concession. (F. 11, A. 1.) 37 & 38. — There has been no established jurisprudence in Lower Canada, since the cession of the country, in relation to the rights in the waters which pass through or border upon their lands. {^^) Right op Banality. 33, — § 1. At the passing of the Seigniorial Act of 1854, the seigniors in Ca- nada who had erected grist mills {moulins a /urine,) had the right of preventing all others from building such mills within the extent of their hanaliii. (F, 11, A. 1.) § 2. They had also the right of demanding the demolition of all milln of that kind built within the extent of their censivc by other persons. (F. 11, A. 1.) At this part of the subject, the court has not been asked if the suppression of the rights mentioned in the two preceding sections should be a reason for indem- nifying the seignior, but in relation to prohibitions the court has stated elsewhere • (41, § 1 and 2. " The disappearance of prohibitions made for the protection of other legitimate seigniorial rights, although legal, docs not give rise to any indemnity, because those prohibitions were only accessory to a principal right for which the seignior has indemnity." 34. — § 1. These rights extended to all seigniories. (F. 10, A. 2.) a ill 440 SUMMARY OP JUDGMENT. I 1 I § 2. The seigniors could not demand the demolition of grist mills built upon lands whoso tenure had been commuted into that of /ranc-aleu roturier, or that of free and common soccago, within the limits of their respective /ie/a. (F. 11 A . 1. 35. — These rights did not extend to other than grist mills, nor to any works (usines) of any kind ; they are comprehended in and form part of the law ot banalUi, and have their origin in the civil laws of France on the subject. (F. 11 A.I.) 36. — § 1. The right of banaliti, as established in the coun' /, obliged .sei- gniors to build banal mills, and tenants censitaires) to bring thei:i' grain to the mill to be ground, which was necessary for the sustenance of their familicii, whether the grain was raised or brought within the extent of the hanaliti, and ground for that purpose. (F. 11, A. 1.) § 2. This right, which was conventional in the origin, was afterwards ren- dered general and obligatory upon all seigniors and tenants (censxVatres.) (F. 11, A. 1.) § 3. The arrtt of the 4th of June, 1 686, was the first law which rendered banaUt6 general and obligatory upon seigniors and tenants. (F. 11, A. 1.) § 4. In this country banaliti was feudal as being attached to Vifief. (F. 11 • A. 1.) i^ 5. Banaliti was only conventional under the Custom of Paris, (*) ^ 6. Seigniors who had no mills built at the passing of the Seigniorial Act ol 1854, have no right, under the provisions of the said act, to any indemnity for banaliU. (*) Nos. 37 and 38 are given on previous page. Reservations. 39. — § 1. The obligation to concede at a rent charge, (d titre de redevancei) imposed upon seigniors, must be understood as being exclusive of all reserves which cannot be comprehended wi*hin the term dues (rcrfewartces), and which were not otherwise rendered legal. (F. 7, A. 5.) § 2. All reserves must be held to be legal, the object of which was the obliga- tion upon the tenant {censitaire) to allow the accomplishment by the seignior, on his part, of the obligations of that nature stipulated by the king in the grant of ihofief- ^- 11' '^- 1> § 3. The following reservations or other analogous to them, were illegal, and do not give to the seignior a right to any indemnity by reason of their suppression : Art. 1. A reservation of firewood for the use of the seignior : Art. 2. A reservation of all marketable timber : Art. 3. A reservation of all mines, quarries, sand, stone and other mate- rials of the same kind : Art. 4. A reservation of all rivers, rivulets, and streams for all kinds of miUa, works and manufactures : SUMMARY OF JUDGMENT. 441 'e de redevaneei) Art. 5. A reservation ol' the rifiht of ilivertinf; and directing tlie course ol' (ttreama and of intcraoctin<:; lands by channels lor that purpose : Art. 6. A reservation of the right of takiii}'- the land requisite lor the build- ingof any kind of mills or niunulactures, with or without indemnity. (K. 7. A. 5.) ^5 4. A reservation of iudeumity for the Viilue of the lands of the rrnsitaire required for the construction of railroads, in also illegal and gives no right to iademnity. (F. 9, A. 3.) § 6. llescrvation of the right of changing the place and time of payment of the cena et rentes and other seigniorial dues, the seigniors might make the reservation, provided the place newly indicated was within the limits of the seigniory. (*) § 6. The reservation of timber for the construction of churches without indemnity, and the reservation of the right of fishing and hunting on the lamls conceded, are illegal, and give no right to indemnity. (F. 8, A. 4.) § 7. The question being put : " i^ the reservation of timber for the building '- of the manor house and mills withiut indemnity, legal, and docs it give to the " seignior a right to an indemnity Tor its suppression ? " the court is equally divided. (F. 6, A. 6.) — But it is t^iatod at S^ 1 : " All reservations which can- not be comprehended within the tcria duo.s (^redevanccs) arc illegal." 40. — The 40th question is too ,^eneral, the court does not answer it. I'RoirniiTioNs. 41. — § 1. When prohibitions were made for the protection of iither legal sei- gniorial rights they might be legal. (F. 11, A. 1.) § 2. But their disappearance, by virtue of the seigniorial Act oi' 18.54. doe;* not give rise to any indemnity, because they were only accessory to a principal right for which the seignior has indemnity. (*) — Can this rule of law apoly to the legal prohibition to build flour mills, which is one of the accessories of the right of h'xnaliU f § 3. The following were nevertheless illegal and do not give rise to any indem- nity : Art. 1. The prohibition to build any kind of mills, manufactures or other works, (usines) moved by water, wind, or steam. (F. 9, A. 3.) : Art. 2. The prohibition to sell marketable timber, to make deals, to grind groin not subject to hanaUti, grown beyond the censive and intended for market. F. 9, A. 3.) : Art. 3. The 'prohibition to use streams passing over or bordering upon the lands of tho censitaires to propel mills, manufactures or other works (.usinen.) (F.9,A.3.) Personal Labor (Corv£es.) 42. — Thd covenants contained in some deeds of concession, imposing personal days* labor (joumies de corviea) upon the tenants (censUaires), for the advantage of the seigniors, are legal and give rise to indemnity. (F. 11, A. 1.) LoDS ET Ventes. 43. — At the time of the passing of the Seigniorial Act, the seigniors subject ll Il » t '■A 442 SUMMARY OP JUDGMENT. to its operation could not lawfully demand tho mutation fino (droit de lod$ tt ventes) upon tho exchange, without soutte of lands within their seigniory for otherfl held in franc-alleu roturier, or in free and common Pocoago, beyond their sei- gniory. (*) Rights op tub Crown. 44. — Tho rights of the crown, the value of which is to be deducted in tho sche- dule to be made under the Seigniorial Act of 1854, from the price to be paid by the tenants (ccnsitaires) to the seigniors for tho redemption of the seigniorial dues, are those of quint and relief in the cases under which they were duo under the Custom of Paris, unless tho lucrative rights of the crown, to be deducted, should have been otherwise regulated by the particular grant of each seigniory, to which reference must bo had ; but it is tho duty of this court to observe that it has not come to the knowledge of this court that the crown has ever exercised the right of relief, except that due under the Custom of Vexin-le-Franfais, included within that of Paris, by which some grants en fief ate governed. (F. 8, A. 4.) 45. — Whenever, by the abolition, under the Seigniorial Act, of the obligation to subinfeudato the lands, an additional value may be given by it to the uncon- ocded lands, that value must be ascertained and inserted in the schedules in <]eduction of the price of redemption. (F. 11, A. 1.) RiGUTs TO BE Valued. 46. — The rights, dues, duties and reservations, the legality whereof is acknow- ledged, and which are appreciable in money, should be valued i'a making up Uiu whole price of redemption of the seigniorial rights. (*) SUMMARY OF THE JUDGMENT UPON THE COUNTER-QUES TIONS SUBMITTED BY THE HONORABLE JOHN PANGMAN. 1. (f) § 1. At tho period cf the introduction of the Custom of Paris into Canada, the legal eflFect of the contract whereby a person, holding lands enfrant- aleu noble, granted therefrom a part en fief or ca censive, was to divde the pro- perty into a domains directe and into a domainc utile. (*) § 2. Under the law of that custom, the noble alleutier was under no obliga- tion to alienate the said lands, i'^) 2 3 4 5 6. The concession en fief, before or after the enregistration of the two arrits of 1711 and 1732, did not operate a division of the estate between .seignior and vassal or tenant (cmsitaire), of what might be afterwards subgranted : but the division was effected by the subsequent deed of subinfeudation or accensement. (t) This figure corresponds with the numbers of the qnestionsand answers; the num- bers followed by .... are those to which there is no answer, the point nnder considera- tion being comprised in the preceding decisions, &c., &c. SUMMARY OF JUDGMENT. 44S under no obliga- answers ; the num- it under considera- 7 8 9. — § 1 and 2. Tho arrH of 1732 did not make any distinction between the nalo of wild lands (tares en hois dcbout), by a proprietor holding enjir/, ni ccniive or en franc-aleu. (*) 10. — According to the arrtt of 1732, the penalty of nullity was attached to the sale of wild lands (terres en hois de bout), held either enfivf or en censive or en t'ranc-ulcu, even if the prohibition had not been specially imposed by tho crown on the original grant. (*) 11 12 13. — § 1. Seigniors will have the right to invoke, for all legal purposes, before the commissioners acting in virtue of the Seigniorial Act, whether in the first resort, or in the revision of the schedules, as well as before the experts, and before courts of law, having jurisdiction over and cognizance of the matter (snisies de mjet), the terms of the original grant by which they hold their seigniories, whether the grante have proceeded from the crown of France, or from the British crown. (*) J5 2. With reference to the tenor of the avcux tl dinomhrements, and of the itcts of fealty and homage and of the crown acquittances for quint and other dues granted to them or their predecessors (auteurs), the same legal effect must be given to them in relation to the obligation of the seigniors to tho crown, .iccording to the circumstances of each case ; but they cannot affect tho relative position of seigniors and tenants {censitaires), because the avcux et dinomhre- ments, acts of fealty and homage, and acquittances (if dues, only have legal effect between tho dominant seignior and the vassal, Jis executed between them, and do not affect others not parties to them. (*) ^ 3. The character and terms of the possession and enjoyment of any righta, cither between the seigniors and the crown, or tlie seigniors and any tenants (censituirrs), in so far as that possession may have a known legal effect, with a view to the seigniorial law and the present decisions of this court in particular, may also be taken into consideration. (*) ^ 4. The commissioners may order the adduction of any evidence which they may require to enable them to judge correctly in all oases. This court cannot be called upon to lay down in its decision all the rules applicable to the admis- sibility and appreciation of evidence ; the application of the rules enunciated in this answer are subject nevertheless, in all cases, to the observance of the deoi- .-lions of this court. (*) SUMMARY OF ThJ JUDGMENT UPON THE COUNTER-QUES- TIONS OF SIR EDMUND FILMER ET AL. 1 2 3 4. — Tho introduction of the criminal laws of England into Canada, since the cession of the country, has not had tho effect of abrogating the penal enactments of 1711 and 1732 j those questions were merely of a civil nature. (*) 5 444 81IMMARY OP JUDQMBNT. G. — These arrili have not lalloii into deHuotude. (V. 9, A. 3.) 7. — Those arr^tn have not been ri>pculod by the Impuriiil Act, .'IQeo. 4, c. la, (comitionly culled the Cimiida Trade Act,) nor by the Imperial Act, Goo. 4, tf. 59, (oonunonly culled the Tenures Act.) (F. 10, A. 2.) ^1 I 1 i 1 ',■* SUMMARY OF THE JUDGMENT UPON THE COUNTEll-QUES TIONS OF DAME MARIE LOUISE CIIARTIER DE LOT BINIERE, MRS. IIARWOOD 1. — ^ 1. The acta of the Imperial Parliament, commonly called the Trade Act and the Tenures Act of Canada, have effected changes iu seigniories for which a commutation of tenure has been obtained under their provisions, with reference to the portions of these seigniories not conceded at the time of the com- mutation, (F. 11, A. 1.) § 2. — These portions were by tlie commutation aubjected to the tenure of free and common aoccage, and relieved from rights and dues to the crown, and gene- rally withdrawn from seigniorial laws and obligations. (F. 10, A. 2.). ^ 3. — At tho time of tho commutation, tenants (cenaitaircs) and the seigniors, on their part continued to be subject to their obligations towards their tcuaDtx {censitaires,) although tho seigniors had obtained a regrant of the entire seigniory onder the tenure of free and common soccugo. (*) § 4. — The laws which regulate tho relations between the seigniors and the tenants (censitaircs,) apply equally to the case where a commutation has been demanded by the seignior, in virtue of the Imperial acb^, but not obtained at the passing of the Seigniorial Act of 1854. (P. 11, A. 1.) § 5. — They apply also to the case when a commutation has not been demanded by the seignior, under the provisions of the Imperial acts. F. 11, A. 1 ) 2. A contract or a clause of a contract, touching the terms of any alienation of lands, which might be contrary to the laws of Canada, although not in itself immoral, or prohibited by British public law, can bo held to be null or annul- lable. (F. 11, A. 1.) 3. The commissioners may not lawfully assume to treat any contract touching the terms of alienation of any lands, unless such nullity has been pronounced by the judgment of a court of competent jurisdiction, or such contract, or such clause of a contract has been declared illegal by the special court. (*) 4. In any Jief or seigniory, for which it was possible to demand a commutatioD in virtue of tho Imperial acts above mentioned, the commissioners have a right to enforce the Seigniorial act of 1854, even if the seignior or tho tenant (censitaire) should elect to maintain the application of tho provision of the Imperial acts. (F. 8, A. 3.) ' Judge Day abstains from pronouncing on this question. The judgment upon the counter questions of Dame Marie Obarlotte Chartier De Lotbiniire, (Mrs. P'ngham,) is contained in the preceding answers. SUMMARY OF JUDOMENT. 445 SUMMARY OF THK .JlJlXiMKNT UPON THE COUNTEU-QUEa TIONS OF THK HONOIL\BLE MALCOLM FRASEK. 1. — Grants in fief \n tluH country, made by the Britinh crown, from thooewion to tho passinj; of the Seigniorial Act of 1851, nro Hubjoct to the sanio iawH as the other grants made under the same tenure, unless the grant contains certain !*peoial dispositions by which a derogation in certain respects shall bo established. (F. 9, A. ;i.) SUMMARY OF THE JUDGMENT UPON THE COUNTKR-QUES TIONS OF THE HONORABLE JEAN ROCH ROLLAND. Seigniors cannot flood the lands granted to their tenants (cenaitaircH), in virtue of their right oT hanalitd ; if they possess the right, it commonly proceeds from valid titles, the effect of which cannot be changed by the Seigniorial Act of 1854. (F. 11. A. 1.) The results determined by this judgment arc : 1, That since the arrit of 1711, the seigniors were obliged to concede their lands. 2, That they wore bound to concede them at u rent charge, (d titrc dc rede- vanees). 3, That neither tho law nor custom had fixed the rates of ecus et rentes, except in the case of a concession by the governor and tho intcndant upon tho scignior'n refusal. 4, That the cens ct rentes should be maintained in conformity with the stipu lations contained in tho deeds of concession. 5, That the seigniors had no right in the navigable rivers, unless they hold such right by virtue of a special title. 6, That when they had such a title, they might subiafeudatc or accenier those rights at a rent charge (a titrc de redcvances). 7, That the non-navigabic rivers form part of the private demesne and follow the property, no matter into whose hands it may pass. 8, That the non-navigable rivers, upon conceded lands, belong to tho tenants (censitaires), and in such a case, any reservation which might be made of them would be illegal. 9, That since the arret of 1686, hanaliti was legal and universal in Canada, and consisted, on the part of the seigniors, of the obligation to build mills, and on that of the tenants {censitaires) to bring the grain, for the use of their families, to be ground in them. 1 0, That the right to prevent the building flour mills, was an accessory to tbo right of hanaliti which it was intended to protect. 11, That such prohibition does not give a right of indemnity, if tho principal due {droit principal) be paid. ^.1^'), fit r • > s 1 s 44e SUMMARY OF .MIDOMKNT. 12, That all tliu uharKun, rcHorviitiotis luul |)rolubitii)n.t, wliicli oiinimt bu com- prised within tlio inn»niiig ol' tho word " ducH " {rrdecuvi-,- and wliich would bavo tho effect of rutuinin;; a pDrtion of tho UHeful dcii>-.,„t. , nro null utid ilK ;^'al. 13, That tho iiiipuHitlon of personal days' lahiir, (Jnin> ' • t ui>k>») ia le^al. 14, That it in roquiMito to aHccrtain the inereu.su in \i. TonurcM Act. do not impose any limit upon the working of the Seigniorial Act of 1854. 16, That tho.so HoignioricH which were conceded both before uni) sinco the •onqucst, arc equally Hubjcct to the enactment of thii) law, except in tho oude whoro unconcodcd lands have been duly converted into frco and common Boccagu. 17, That tho parties interested will bo allowed to produce every kind of legal •tidoncc, in support of their pretensions, before the oommissloncr.s. • ¥■< ". \ CASES FROM PREVOSTi DE QUilBEC. The following casca aro conilonscd from a small volume published at Quebec in 1824, by Joseph Fran^-ois Porrault, one of the prothonotaries of the Court of Queen's Bench at Quebec, intituled " Kxtraitsou I'rdcddcnts tire's dcs Rcgistres " de la Prdvostd do Quebec." The decisions were given by Messrs. Delcigne and Dain, two of the most eminent of the Lieutenants civils et eriminels of the priuoiti under the French government, from 1726 to 1759, M. Deleigno having been installed in 1717, and M. Dain in 1744. It appears from the dedication " Auz honorablea jugcs, ct it. messieurs les gens du roi, avoeats, proeurcurs, et " protioiens du Bas Canada," and from the preliminary observations by Mr. Per- rault, that the Court of Frivosti sat every Tuesday and Friday ; that, in addi- tion [it hold special sittings (dct audiences particuliircs) on other days of the week when required ; that there was only one judge for all matters civil and cri- minal and for those of police; that this jndgo was appointed by the king; that an appeal lay to this court from judgments given in the seigniorial jurisdictions, and from its decisions to the Conseil Souverain. That it was of the essence of the Court of Privosti to bo assisted by the Pro- eureur de roi, also named by the king, who was constantly in court, " lequel " portant la parolo dans toutcs les causes," watohod over the interests of the king and of the widow and orphan, and demanded the punishment of persons wanting in respect for justice. That there was but one Grcffier of the court also named by the crown. That in coses where these officers were recused or were recusables for relation, ship or interest, or were sick or absent, the intendant named others ad hoc, and that sometimes the lieutenant general named a procureur du roi or a greffier in these cases. That the Custom of Paris, the general laws of France, the Ordinance de Com- merce, the Code Civile with the redactions of the Conseil, and certain edicts and declarations of the kings of France relative to Canada, were the fundamental basis of the procedure, and judgments of the court. That as there were not in the country at that time avoeats or procureurs reconnus d'office, proceedings were conducted by notaries, or by huissiers who acted by special powers of attorney. That the entries in the registers were signed by the judge ; that insinuations were read and made in court ; that inventories were closed in the presence of the subrogii tuteurs, and accounts in presence des oyants ; that acle was given of a default, and after the eight days, judgment followed without any preuve teiti- moniale, simply sur la contumace. ■iVL 448 CASES FllOM PREVOSTB DE QUEBEC. " 'i That, in commercial matters, contested accounts were referred to mcrchant» the judge deciding definitively on their report ; that for debts liquidcs, proccedin'^s were had by execution and saisie arrit. That on judgments on promissory notes and bills of exchange contrainte par rorps was always granted ; that damages from whatever cause were always fixed by experts, as also accounts of tradesmen, and contestations as to the erection and repairs of buildings ; and that the liquidation of rights of succession and divisionM of property were invariably Ksferred to praticicns. Appeal, No. 49. Aliment, No. 134. Admiralty, No. 80. Action to account, No. 42, 60. Arbitrators, No. 45, 67, 88, 96. Aubergiste, No. 113, 114. Bailiff, No. 17, 31, 81. Bastard, No. 110. Kornage, No. 52, 56, 120, 121, 142. Bail Judicairc, No. 63. Bills and Notes, No. 4, 5, 20, 21, 39, 106, 72, 84. Books of Merchant, No. 97. Contrainte par Corps, No. 20, 40, 42, 107, 122. Curator, No. 41, 06, 81. ('hurches. No. 13, 14. Commission "iogatoire, No. 37. Oommissaire, No. 24, 48. Costs, No. 119. Donation, No. 22, 104. Default, acte of, No. 12, 15, 19, 47. Debats de Comptc, No. CO. Dower, No. 35. Domicile, No. 91. Damages, No. 101, 110. Deconliture, No. 128. Descentc sur les lieux, No. 118. Dixmes, No. 128. Decouvert, No. 142. Ddmence, No. 22. Evidence, No. 79, 97. Execution, No. 17,24, 141, Experts, No. 50, 52, 54,66, 63, 93, 116. Fraud, No. 163. Folle Encherc, No. 15. Fences, No. 127. Father, rights of, No. 16, IT, 24, 82, 101. Fine, No. 103, 122. (roods, sale of, No. 25. Garantie, No. 61. Gardion, No. 29, 107. Husband and Wife, No. 4, 40, 55, 87, 126, 136. Interdiction, No. 44. Inscription de Faux, No. 3C. Inventory, No. 9, 43, 75, 100. Intervention, No. 83. Judgment decouvert. No. 142. " on confession. No. 40. " by instalments. No. 58. " d'ordre. No. 38, 132. '•' par provision. No. 64. " generally. No. 65, 66, 68, 69, 74 Landlord and Tenant, No. 8, 11, 23, 4? 76, 115, 130, 138. Legitime, No. 33. Legacy, delivery of. No. 135. Marriage, No. 32, 35. Notary, No. 2, 112, 117. Opposition, No. 8, 70. Oath, No. 78, 79, 84, 92, 102, 105, 117, 120 Pleading, No. 18, 59, 63, 71, 73, 7T. Privilege, No. 102. Prescription, No. 21, 133. Pain Beni, No. 13. Resiliation, No. 76; 00, 104. Reparation d'honueur, No. 140. Reprise d'instance. No. 85. Rente, No. 27, 28, 109. Renunciation, No. 10, 62. Rhumb do Vent, No. 1. Subrogation, No. 99. Succession, No. 89, 108. Schools, No. 7. Saisie Arret, No. 95, 102. Seigniorial Rights, No. 3, 30, 31, 38, 34, 93, 115, 123, 124, 139. Slander, No. 94, 140. Syndic, No. 108. Transaction, No. 90. Tiers Saisi, No. 26, 57, 129. Tutelle, No. 10, 86, 105. Trespass, No. 6, 51. Will, No. 131, 135. Wages, No. 137 Water, No. 98. PR^VOSTP] DE QUEBEC, (From 172G to 1759.) No. 1. 1726, Oct. 22. Judgment confirming Ic ruuib dc vent of the 2nd con- cession of the seigniory of Ncuville although it was not in conformity with PREVOSTB DE QUEBEC. 449 , :{0, 31,38, 34,93, that of the first concession. Peltier vs. Fdtier, and Magui, Inter., p. 7. See judgment, Cons. Sup. In Appeal. No. 2. October 22. Judgment ordering a notary to produce in court the minutes of two contracts between the parties in the cause. Leclerc vs. La- brie. Prh'osti, p. 7. No. 3. 1727, February 4. Judgment reducing certain seigniorial rents to thirty instead of forty sols per arpent, in conformity with the declaration of The King, of 5t!i July, 1716. Amix)t, seignior of Vinccllotte vs. Fortin et al. lb., p. 8. No. 4. July 11. Judgment discharging a husband from paying a billet mado by his wife, without his authority. Jeranie vs. Bellorget. lb,, p. 8. No. 5. December 23. Judgment for the amount of a lost note, and declaring the uote null in case of its being found. Trepagny vs. Duuteuil. lb., p. 9. No. G. 1728, February 24. Judgmei-.t adjudging to a plaintiff, wood cut by defendant upon plaintiflTs ground, and forbidding defendant to take it away under the penalty mentioned in the ordinance of the iuteudaut. Aina vs. Deguise. lb., p. 9. No. 7. March 11. Judgment condemning the Seminary of Quebec to keep the pluintifi's son in the seminary to finish his studies, or to pay for his board annually elsewhere, 450 livre*sHif(/H< V acte dc foundution. llausseur et al, vs. Superior of the Seminurg of Quebec, lb., p. 9. No. 8. March 11. Judgment giving mnin levee of certain goods seized, and ordering them to be delivered to the plaintiff as her property, and the rest of the goods to be sold and the proceeds paid to plaintiff for rent. Voi/er vs. Picket, gardien of effects seized upon Tripagny. lb,, p. 10. No. 9. March 15. Formule of closing an inventory, the j^'ocureur du roi and the subrogi tutor present, lb,, p. 10. No. 10. April 14. Formule of the presentation aad affirmation of the account of a tutor, lb,, p. 11. Of renunciation at ^re^c. 76., p. 39. No. 11. April 15. Judgment ordering a tenant to furnish (gnrnir) the apart- ments leased, and to quit the premises in case of complaint of the noiso made by him in the exercise of his^)w/es»(V>;i (/uiscmj* degalochcs), Liger {/aisetir de galoches) vs. Moujils, lb., p. 11. No. 12. April 16. Acte given with costs of a first default to appear. Lenor- mandys. Gamier, lb., p. 11. No. 13. July 6. Judgment condemning the defendant to furnish, in his turn, a, pain Unit, also dcierge et unc queteusc to the church on pain of tcs DD 'U 'W^n 450 PREVOSTE DE QUEBEC. livrcs amende. Boutin, Marguillier en charge Ancienne Lorette vs. lieo- 2}cl, habitant. Ih,, p. 12. • No. 14. July 6. Judgment condemning defendant to bring the actions (poursuites) necessary to recover what was due to tlie Fahrique. Boutin (niarguillier) vs. Bonhomvie et al., habitants. lb., p. 12. No. 15. July 27. Judgment entering a second default, and ordering an ailjudicataire to pay the price of his acquisition, in default whereof the property to be sold at her /olle enchire. Lcmoyen et al, vs. Lemoine. lb., p. 13. No. 16. 1729, March 15. Judgment condemning a fiither to give up his daughter to her grandfather who had offorod to bring up and educate her. J^onnand vs. Marcou. lb., p. 13. No. 17. March 15. Judgment declaring a seizure invalid for want of a date iu the (xr,j>hit de saisic, and the huissicr condemned to pay back (^rendre ct reslitucr) the costs occasioned by the seizure. Canac vs. Gaticn. lb., p. 13. No. 18. 1729, October 19. Judgment in an action against a defendant resi- dent at Montreal, and only temporarily at Quebec, ordering the parties a se pouruoir pardcvant le Licut.-Ginh'al de la jurisdiction de Nontriul ; costs divided. Itmjcots vf?. Lc, Frire Gervuis uu nom et commc procureur dcs Freres Charon dc Montrad. lb., p. 14. No. 19. December G. Judgment to relieve a defendant from the execution of a sentence 2^1" de/aul on payment of costs. Marandeau vs. Boillard. 11., p. 14. No. 20. 1730, July 18. Judguiont condemning the drawer of a bill of ex- change to pay it par corps. Vaitlant vs. llicliL Jb., p. 14. No. 21. Jul) 12. Judgment admitting the prescription of thirty years against a billet. Valleya. liiverin. lb., p. 15. No. 22. 1731, Marcli 2. Judgment declaring a donation null pour cause denicnce of dimor, and ordering a jmrtngc of the projHJrty. Ilichi au nom et comme Jonde dc procuration de S. llainiurd vs. Guillot, and Gossdin, Inter, lb., p. 15. No. 23. 1731, June 12. Judgment ordering two stoves leased by plaintiff to defendant to be given up to plaintiff. Mnillou, pltf , vs. Lcger et nx, and le Frere Turc dtl Chritien d'ahire jKirt, deft, lb., p. 10. No. 24. July 1. Judgment condemning a commissaire to a saisie riele to accept the charge. Levasscur vs. Bouin dit Dnfrhic. lb., p. 17. No. 25. 1732, Fe!)ruary 5. Judgment for tlie price of goods sold at auction, Forticr, tutcur, vs. Lcclair. lb., p. 17. No. 2G. March 11. Judgment rendered against a tiers saisi who refused to make his declaration on oath. Amiot vs. Couillard. lb., p. 17. PREVOSTE DE QUEBEC. 451 rette vs. Reo^ SIC ride to accept sold at auction. No. 27. March 26. Judgment for twenty-nine years arrears of a rente fonder against a ditenteur of a lot. Peuvret vs. Roussel. 11., p. 18. Xo. 28. April 22. Judgment condemning the defendant to pay the capital and five years arrears of a lonstitut for iion payment of the rente. Iliche vs. Lajoue. lb., p. 18. Xo. 29. May 6. Judgment discharging a gardien to movables by reason of the plaintiff not causing them to be sold within the two months mentioned in the 172nd article of the Coutume de Paris, Duhuron vs. Chmimereau^ Ih., p. 19. No. 30. November 25. Judgment condemning a concessionnaire to pay the cens ct rentes on u land conceded to hiui in 1711 and sold by him to another in 1718 sauf recoitrs. Uuchcmai/ vs. Tunjeon, Ih., p. 19. No. 31. 1 733, January 20. Judgment condemning a habitant to pay the rentes of his lands at 30 sols per arpcnt, and declaring valid the -ake, at his own diligence, in the course of the then current year, to come out by the vessels of the year 1737, in default whereof judg- ment would be rendered definitively on the condemnation demanded. Jean de Graves vs. Lafonlainc de Belcourt. lb., p. 24. No. 38. July 19. Form of sentence d'ordre showing the preference given for j'rais de poursuite, les honoraires des ujfickrs, rt le droit de depot de deux et demi pour cent. Tachd vs. Lao-uix and divers opp. lb., p. 24. No. 39. October 16. Judgment discharging an indorser of a /e^z-c (/e c/tffyyc for want of a demand within the delay prescribed by the onlonnancc dn commerce, four years having elapsed siuco tho iudorsement to plaintiff. llavi/ vs. Perrault. lb., p. 20. No. 40. October 17. Judgment agaiu!«t a marchande publique to pay 3494 livres meme par corps, Corbierr, negociant, vs. M-igdeloine Laverdien; J'cmme de Charles Demers, faisaul profession de marchande publirjue, dc- fendrcssc. lb., p. 2G. No. 41. 1737, July 16. Order to create a curator to presumptive heirs absent. i6., p. 27. No. 42. Judgment ordering an account with pikes Justificatives to be returned sous peine d'y etre contraint par corps. Maufait vs. Chapeau, veaoe Mati- fait, lb., p. 27. No. 43. A new inventory ordered to bo made for want of notice to the tutor of the minor children of tho first marriage, with injunction to proceed in his presence and in that of the subrogis tutors of the minors of both marriages. Lanoix vs. Girard. lb., p. 27. No. 44. Form of reh.ibiliting an intordiotcd person, lb., p. 28i PRfiVOSTK DE QUEBEC. 453 i!i)tivo heirs absent. No, 45. July 23. Judgment interlocutory ordering accounts between merchants to be submitted to arbitrcs. Fourndvs. Bniguiire. lb., p. 28. No. 46. July 23. Judgment on confession with delay of payment. Maranda vs. Glaon. lb., p. 28. No. 47. July 24. Judgment on a second default without proof of debt. Lemire vs. Romain. lb., p. 29. No. 48. July 27. Judgment condemning tenants to pay their rents to a com- missaire established over the Icaeed property under seizure. Coutdmu, Commismire, vs. Clement et ah lb., p. 29. No. 49. August 2. Judgment on appeal from decision by the judge BniUiff de Beaiipurt, Guyon vs. Gravdle. lb., p. 30. No. 50. August G. Judgment ordering, avant /aire droit, that the repairs necessary to a house be established by an a rchitcct. Himou \». Lurvi. lb, p. 30. No. 51. August G. Judgment forbidding defendant from passing o or a land, on pain of fine. ljuin6vH. Cluimber/mid et ul, lb., p. 30. No. 52. August G. Judgment ordering a verification by experts of the lines of the lands in question, with a jilan establishing on which land the trees had been cut, with their value. Rouleau vs. Labrcque. lb., p. 3^ . No. 53. August G. Form of bail jndicaire. No, 54. August {I. Interlocutory to establish whether a barn was built accord- ing to agreement. Moiijlc vs. IJtIormr. lb., p. 33. No. 55. August 9. Interlocutory ordeiiiin the wife of tlie plaintiff to appear to be cxamimid. tVyx/tVrvs. I'ctitdalrr. /i., p. 33. No. 56. August 9. Interlocutory ordering a surveyor to replace boriies taken up by him. Roucr vs. Puijt lb. p. 33. No, 57. August 13. A tiers S'tisi onlorod to keep in his hands the amount ui' a note pi'yable to order until ordered to pay to the bearer of the note. Lefevre vs. Castillon, and Lafontaine, T. H. lb., p. 34. No, 68. August 20. J udgmeut ordering p;iyment by instalments. Lanoixvs, Bdleroie. lb., p. 34. No. 59. August 20. Interlocutory ordering defendant to servo copy of pleas on the plaintiff, and granting «c7e of election of domicile by defendant. Chaplain vs. Provost, lb., p. 35. No. 60, August 23. Form of judgment on a rf«!/«ffs rf- compfe. IlaimardvH. Guillot. lb., p. 37. No. Gl. August. 27. Interlocutory to put a garant formel into the caupe. Gognon et ujc. vs. Bdvihp • lb., p. 37. .1- ( ! 451 PR^VOST^ DE QUEBEC. Judgment ordering merchandize nous halle to bo returned until paid for d dire d' experts et nigodanta. Cordicr vs. Guljuiere. Jb., p. 37. No. C2. August 27. Interlocutory ordering a renunciation to be made in the f/reffc in the ordinary manner. Prevoat vs. Sedillot. lb., p. 38, Form of p. 38. No. 63. September 17. Interlocutory ordering phiintiff (a merchant) to prove \i\s cXaxmh^ piccea authentiiiuca ct aujfiaantca. Tardlfxs. Guiguih'c. Jb., p. 39. No. G4. September 17. Judgment ordering 250 livres to bo paid to plaintiff par provision on an account rendered by defendant. JIuimard vs. Guillof. lb., p. 39. No. G5. September 2-t. Judgment condemning a defendant to' furnish plaintiff with a copy, en forme exicutoire, of hi.s deed of sale, and to pay the rente due. Dcsmeloises vs. Armaiid dit Maison de Hois, lb., p. 40. No. GG. September 24. Judgment ordering a curator to a vacant succession to pay a sum of money on plaintiff's obti.uiing order of the creditors saisis- S'lnts and opposants. Facaud vs. Gniguierc. lb . p. 40, No. 67. October 1. Judgment setting aside an award of arbitrators for eatiuf; and drinking with plaintiff, and not making their report aur lea lieux. Dc- lorme vs. Moujie. lb., y. 41. No, 68. October 1. Jud,'.'aicnt condemning the defendant to pay a sum to bo fixed by an expert. Dcsmeloises vs. Deguisc. lb., p. 41. No. 69. October 1. Judgment declaring null a deed of sale for wJint of ratifi- cation thereof by deiondant according to its stipulations, Chavigny vs. Vcsprcs. lb„ p. 42. No. 70. October 5. Opposition maintained to the execution of a judgment by default, llicld vs. Denis, lb., p. 42. No. 72. October 9. Action dismissed for want of a signature to the requite, by the plaintiff or his ^^rocw cur fundi. Nouchclvs. Grei/sdc. lb., p. 43. !»o. 72. October 14. Judgment condemning the defendant in the amount of a note as payable " in the month of October," and not in all the month of " October." Guigniere vs. Foucher. lb., p. 43. No. 73. OctoSei 15. Order to strike out {rai/cr et biffcr) from the requite the term extorq^d applied to a C^-o.d of transaction sought to bo rescindod, and ordering a new election of domicile in the city of Quebec. Charcst vs. Charly. lb., p. 44. No. 74. October 17. Judgment dismissing an action for payment of un envoi de marchandises for want of \iro<){ par icrit, and ordering the goods to be delivered to plaintiff on domaud. Costs compensated. Dazancelte vs. Charly. lb., p. 44. I'REVOSTE DE QUKBEC. 455 trators for eatiu'' if a j udgment by No. 75. October 26, Form of cntirinetnent de kUres dliiriticr sous hinifice d'inventaire. Il»., p. 45. No. 76. October 29. Judgment declaring good and valid a salsic made on a ferraicr j)OMr droits de fernuige, and rcsiliating the lease ^xutc de paicment, Ilazeur vs. Philihot. Jb., p. 46. No. 77. November 19. Delay granted on the demando of defendant's wife until the return of her husband (a navigatcur) to enable a plea to be made. Dccouangc vs. Bcaulicu. lb., p. 47. No. 78. November 19. Judgment discharging a defendant on his oath that he had paid for wine sued for. Sombrun vs. Chalou. Jb., p. 47. No. 79. November 19. Interlocutory ordering pluintiflF to bo examined as to lost receipts. Nunnand vs. Bcsanron. lb., p. 47. No. 80. December 4. Parties sent out of court, the fact in dispute bo'.ng unfait maritime. Doumcrc, urmateur, vs. Olivier, capitaine de nar'.,e. Jb., p. 48. No. 81. December 13. A huissier audicncicr named and sworn in court as curator to a vacant succession. Gastonguaj vs. Lajus. Jb., p. 48. No. 82. December 31. Judgment in favor of a father for wages of his sou Fortin vs. Amiot de Vincelottc. Jb., p. 48. No. 83. 1738. January 14. A creditor allowed to intervene in a suit against a curator to a vacant succession. Lajus vs. J'ilottc. Jb., p. 49. No. 84. February 7. A defendant discharged from paying a Icttrc d'echingc, on himself and his wife making, within a month, oath that it hud been paid. Tiichi vs. Debergires. Jb., p. 49. 4 No. 85. 1738. February 11. A reprise d'instance allowed. Foumicr vs. Mal- boeuf. Jb., p. 50. No. 86. February 11. Order to a tutrix de jtrendrc qualite within fifteen days. J*revost vs. ScdiUot. Jb., p. 50. No. 87. February 25. Judgment en sipnrntion des biens and declaring valid a seizure made by the wife. Renaud vs. Doyon. Jb., p. 51. No. 88. February 28. Homologation of a judgment of arbitrators made under a compromis sous seign privi. Jjemoyne vs. Lcmoi/nc, Jb., p. 61. No. 89. February 28. An obligation of a deceased person declared executory against liis heirs solidaircment, Lefebvre vs. Blouin. Jb., p. 52. No. 90. March 4. Form of cntirinemcnt de lettres de rescison et restitution en entier, Churest vs. Cluirly. Jb., p. 52. No. 91. March 4. Judgment by default on an assignntionau derrdcr domicile with dechiration d' hypothcque. J^oisset vs. Larchevesqnc, JHn. Jb., p, 63. M ^.:i€iu ' I » m mi: ^ 1 1 s I i 456 PR^VOSTfi DE QUEBEC. No. 92. March 11. Judgment on oath of plaintiff against an heir sous hini- Jice tV inventaire. J'errauU vs. Jiiielte. Jb., p. 54. No. 93. March 11. .Judgment for loJs et ventes on a sale from father to son. Gaillard vs. Fontaine. lb., p. 64. No. 94. April 15, 22. In an action d' injure for stating that the plaintiff " itaient de races de j)endus" defendants condemned to retract and make riparation d'honneur before three persons to be chosen by plaintiffs and to pay a fine of three livres to the poor of the Hotel Dieu. L. Liard, tailleur d' habit, et Francois Dupont vs. Legrisj/orgeron, and Lagarenne, menuisier. lb., p. 56. No. 95. April 25. A aaiaie arret en main tierce declared null as having been made sans titrc niordonnance de justice, Boutin vs. Lcbreton et al. lb., p.«6. No. 9G. October 6. Ordered that the parties in a commercial suit name each a person au fait de commerce to report as arbitrators. Ilavy et al. vs. Bes- aunicrs, Jb., p. 56. No. 97. November 25. Judgment on an account taken from the books of plaintiff, a merchant, in presence of Le Juge Bailif do Louisbourg et du Procureur Gt'iidral du Hoi au Conseil de Louisburg, 4th November, 1737. Dacarette vs. Courtin, curatcur. Jb., p. 57. No. 98. December 2. Interlocutory thrit experts should examine the natural course of a coitrs d'cau, and the dumago caused by plaintiff's dam, and to give their opinion as to what would be for the common benefit of the parties. Drolet vs. Uamois et al. Jb., p. 57. No. 99. 1739, September 9. Subrogation of plaintiff in place of a seizing ere- ditor who neglect to proceed with (poursuivre) the seizure. J'crrault, cre- ancier de Jjepalme, vs. Chaicsts et al., crianciers saisissants. Jb., p. 58. No. 100. 1740, February 19. Judgment as to effects ricclis at the making of an inventory and depriving th*? widow of her half in these effects, and of her usufruct therein under a donation. Crenet et al. vs. Vergeat. Jb., p. 58. No. 101. July 19. Judgment in damages against a defendant ibr having by imprudence injured plaintiff's child with a harness. Courlant vs. Serf, charrctier. Jb,, p. 59. No. 102. 1741, October 20. Judgment declaring valid a seizure of pelleteries in the hands of the debtor's brother, and that the plaintiff be paid by privi- lege and preference, the debtor having agreed by obligation to pay a sum fixed, " en castor au prixdc bureau, ou bonnes pelletries au prix de Quobcc." JXAillebout Sieur dc Cuulanges vs. JLnry Campeau fonde de pouvoir de Louis Camjuau sonfrhe, Ib.,^. 59. No. 103. November 14. Fine of 20 livres against a defendant for offering, contrary to good faith, to make oath tiiat he owed nothing to plaintiff: — PREVOSXfi DE QUEBEC. 457 heir sous lini- n father to son. Half of thb fine to tho Hotel Dicu, and half to the General Hospital. Arguin vs. Tourangeau. lb., p. CO Ko. 104. November 24. Donation revoked for non-compliance with the charges contained in it. Lehlond vs. Drouin. lb., p. GO. No. 105. 1742, March 13. A tutor condemned to remain tutor, and to appear and take oath in is said quality before the court. Voyer vs. Dolbec. lb., p. 61. No. 106. 1743, January 4. Judgment dismissing an action on a promissory note payable to order and transferred after knowledge of a taiaic arrit. Liqnart vs. Nouetie. lb., p. 61. No. 107. December 3. Judgment of contrainte against a gardien to roprescnt the eflFects, or to pay the pluintifif's debt with interest and costs. Gourdeaux vs. Deamoliert. lb., p. 62. No. 108. 1745, October 5. Judgment condemning the heir of a syndic of the creditors of an insolvent debtor to bring in a sum of money received by his father for division rateably among the creditors, with costs, llacy et al, vs. Lamorille, lb., p. 62. No. 109. 1747, October 10, Judgment founded upon the 121st article of the Custom of Paris, declaring rentes /onciercs in the city and faubourgs of Quebec rachetables ii toujours and ordering defendant to receive the capital, lioisclerc vs. Les Dames litligieusca dc V Hotel Dieu. lb., p. 63. No. 110. December 12. See curious case against the father of a bastard child not born, where the plaintiff's daughter was examined on oath : Judgment condemning the defendant " iu avoir soin de I'cnfant qui naitra de la dito " Marie Joseph lloi ; qu'il sera tonu d'avertir lo dit procureur du roi dc la " naissance, aussitot qu'il sera veuu au monde, et dc I'eudroit ou il aurait " 6te mis en nouricc ct ensuito en avoir soin suivaut son dtat, ct I'elever " dans la rclegion Catholique, Apostolicjue et liomaiue : ct sera tenu d'ea " rapporter un ccrtificat tous les trois mois au dit procureur du roi ; condam. " nous le dit Sicur Louis et par corps en cent vingt livres pour tenir lieu " ik la dite Roi tant de dommages, int(5rets que fruis de gusinc, et faisaut " droit sur les conclusions du procureur du roi, condamuons Ic dit Sieur " Louis, defcndeur, en douze livres d'aumOne, applicables aux religicuscs " de rHopital-Oendral de cettc ville, dont il sera tenu de rapporter un rc§u " de la ddpositaire du dit Hopital-Gi^ntSral au procureur du roi dans hui- " taiiie, et le condamnons en outre aux depeus, liquides ik trois livres dix " sols, ces pr»5scnte8 non comprises." Louis Itoi, stipulant pour Marie Joseph Roi, sa fille mineure, vs. Le nommi Sr. Louis, habitant de L'Islet. lb., p. 63. No. 111. 1748, January 24. Tutelle inventaire and partage declared null. Lalagui/e vs. Terrien et Blai/i, tuteur et subrogd tuteur. lb., p. 65. No. 112. April 2. Judgment forbidding, sous les peines de droit, a person not I M. 1 1 ; 1 1 ^ J^ 468 pr6vost6 de Quebec. a notary from receiving any instrument or aormg as notary, it appoarinj» that he was in the habit of going about receiving marriage contracts nrnl even inventories and causing them to be signed by bis brother, a notary who was unable to act from illness. Procureur itu lioi vs. Btllevue. Ih., p. 06. No. 113. 3Iay 14. Action of an aubcrgiste for ten livrcs ten sols dcttc de cabaret, dismissed. IiouiUard\H. Dichamp. lb., p. G6. No. 114. 17'1'J, December 30. Cabarcticr condemned to pay a fine to the General IlospiUvl pour avoir donni A boire pcndual Ic. tcrvice diviii contrary to the reglcmcnt of police. Procureur da Roi vs. Pcrche et ux, Jb., p. (57. No. 116. 1750, March 11. Contract of concession ordered to bo taken before notaries by a ccnsitairc porteur d'un billet de concession. Roi, seigneur dc Vincennc, vs. Girard. Jb., p. G7. No. 115b. April 1-1. Congd to leave leased premises doolared valid. De Che- miux vs. Lecler. Ih., p. 68. No. 110. April 14. Expertise ordered to establish the divisibility or indivisi- bility of an immovable. Gluipcau vs. Chapeau. lb., p. ()8. No. 117. April 28. A notary authorized to receive the oath to an account. Vignaud vs. Lnmalette. Jb., p. 09. No. 118. June 16. Descente de justice sur les lieux with the procureur du roi and a mason to establish whether the chimney of a /our was sufficiently high, or might be prejudicial to the public or to plaintifif. Chulou vs. Mon- tigny. lb., p. 09. 119. July 21. Distraction granted of costs and disbursements. Barhd Pirot. lb. vs. p. 70. 120. July 28. Arpentage and homage ordered, with power to a euro to administer the oath to the surveyor. Anetil vs. Leclerc. lb., p. 70. 121. July 28. Bornage and arpentage declared null for not mentioning the titles (litres) of the parties. Anetil vs. Grondin. Jb., p. 71. No. No. No. 2no. 122. August 11. A fine, payable to the General Hospital, imposed on a plaintifi' for want of respect to justice in saying " qu'il arriverait malheur " si Ic dit Breton restait dans la dite maison. Abel vs. Breton, Jb., p. 71. No. 123. 1751, January 12. A seignior ordered to provide a practicable road to his mill. Roi vs. Turgeon. Jh., p. 71. No. 124. February 2. A purchaser condemned to pay lods et ventes on his own purchase and that of his auteur. ValU vs. Mouisset. Jb., p. 72. No. 125. 1754, November 5. Moneys ordered to be paid over to the party first seizing, the defendant not being en diconfiture. Lajus vs. Bartheletng and T. S.. Jb., p. 72. No. 126. 1755, January 28. A judgment of" la jurisdiction dc Notre Dame " des Anges " awarding a voluntary separation de corps et des biens for in- compatibility of temper was appealed from, and in appeal it was urged that the separation had been sought for by the appellant, and a division of the community made after judgment : Judgment in Appeal. " Parties ouies et le procureur du roi, nous, sans ^* nous arreter aux exceptions propos^es par I'intimde, disons, qu'il i dte PRKV08TK DK Ql'KUEC. 459 I valid. De Che- scments. Barbel <' mal juf^il otbicn appollrf, en confl(5t|uonce ordonnons qui riutim.,p. 75. No. 131. 1756, February 13. Judgment that a will bo executed according to its form and tenor, and that the executor be put in possession in conformity to the Custom of Paris. lb., p. 75. No. 132. March 30. Order that creditors fyle at the ffreffe the documents in support of their respective claims, for the purpose of proceeding to a distri- bution or sentence d'ordrc. Langcvin vs. Girurd. Jb., p. 76. No. 133. Juno 30. Prescription pour fournitures faitcs par un ouvrier " at- " tendu quole demandeur n'afait aucun arrets dccompte avcc lofeu Sieur " Do Lory, depuis Ic 2 avril, 1654, jus(|u'au 20 sept., 1755, co qui est con- " trairo \i la coutume." Fournicr vs. De L6rij. Jb., p. 76. No. 134. 1758, April 11. Alin entary pension ordered, on giving up certain effects by the plaintiff to the defendant. Sedillot vs. Couture. Jb., p. 77. No. 135. May 9. Delivrancc de logs ordered, and executor to deliver one half of the effects to the plaintiff. Jioucl vs. Laurent. Jb., p. 77. No. 136. A widow, commune en biens, condemned to pay only one half of arrears of roite de titrcs cUricaux. Brasiard et al. vs. JJupi. Jb., p. 78" No. 137. August 22. Wages not allowed by reason of deserting service before the expiration of time agreed on. Clesse vs. Gatel. Jb., p. 78. No. 138. August 21. Judgment ordering tenant to leave a house within eight days, on receiving a didomnuxgement at the rate of one quarter's rent per year, on the unexpired term. Tourangeau vs. Toussaint, 76., p. 79. No. 139. September 12. Judgment for cms ct rentes el lods et rentes with a fine (.amende) of three livres, fifteen sols, Jacreau vs. Datilva. lb., p. 79. IMAGE EVALUATION TEST TARGET (MT-3) e ^> 4. ^ 1.0 I.I 1.25 12.8 |25 1^ fi^ 12.2 ^ U^ 12.0 i 6" V] 71 y^ '■^ '/ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 *^ \ ^ iV \\ [v ^t:\ '^f^ \ 460 PR^VOST^ DB QUEBEC. 1 ii 1 1 r: ■ 1 1 No. 140. October 6. Defendant condemned to make a public reparation d'hon- neur, and to declare that ho acknowledges the plaintiflF " pour honnSte '/ homme incapable d'avoir void, &c.," with payment of fine and damages, and liberty to plaintiff to affix the judgment to the door of the Bonsecours church. Dupont vs. Bilanger. lb., p. 79. No. 141. October 24. The sale of an immovable ordered, by consent of parties, without proceeding to the sale of movables. Leglisse vs. Trudel. lb., p. 80. No. 142. 1759, February 6. Sentence pour decouvert, cloture mitoyenne, et fosses de ligne. Demers vs. Corbin. lb., p. 80. I f : 1 1: ■■ : •' ii> ;li re mitoyenne, et CASES IN THE CONSEIL SUPERIEUR, QUEBEC. The following decisions are condensed from another volume, published also in 1824, by M. Perrault, one of the prothonotaries of the Court of Queen's Bench, Quebec, as extracted by him from the registers of the " Conseil Sup^rieur de Quibec," from 1727 to 1759. It appears from the preliminary observations of M. Perrault, that the Conseil held sittings once every week, and was composed of gais de hi, presided over by the Intendant. That an appeal lay from any cause, however small might be the amount ia dispute. That no security was required, and that the fine of an icu was the penalty of a fol appel, with the costs. That leave to appeal was granted on a simple requite to the president of the Conseil, who put at the bottom of the requete, " Permis d'appeler en deposant " I'amende, et soit signifi^ pour en venir au Conseil Sup^rieur, au premier jour " competent." If the respondent apprehended that the appellant would not press forward the appeal with sufficient diligence, he the respondent presented a requete pour itre regu anticipant; and on depositing the amende of an icu, might then press on the proceedings, which consisted of a simple statement in writing of the griefs complained of, followed by answers. In this vay, a cause miglit be got ready for hearing in a day or two, when it was hauued to one of the members of the Conseil, and judgment speedily followed. Appearance without summons, No. 6. Arbitrators, No. 6, 71. Appeal, No. 8, 9, 10, 15, 32, 4T, 50, 54, 58. Adjudicataire, No. 61. Attorney, No. 73. Books of Merchant, No. 75. Bills and Notes, No. 16, 25, 41. Bastard, No. 68. Contrainte par Corps, No. 20, 23, 31. Coats, No. 2, 27, 50, 73. Consignment, No. 60. Consignation, No. 61. Damages, No. 15, 45, 6?. Desiatement, No. 47. Default, No. 14. Donation, No. 17, 26, 52. Dower, No. 76. Ditches, No. 64. Experts, No. 69, 11. Evidence, No. 35, 75, 80. Erocation, No. 36. Erecution, No. 72. Enqufete, No. 70. Father, No. 7, 45, 68. Folle Enchere, No. 61. Goods, gale of. No. 40, 43, 60, 74. Gardien, No. 13. Hypotheques, No. 33. Inventory, No. 81. Landlord and Tenant, No. 4, 21, 29, 57, 59, 62, 66. Legitime, No. 26. Marriage, No. 18, 48, 78. Mur, No. 39. Office, No. 19, 74. Opposition, No. 32, 37. Oath, No. 54, 66, 80. Pleading, No. 6. Rente, No. 49. Rhumb de Vente, No. 1. R^siliation, No. 21, 52, 65. Rebellion en Justice, No. 38. Reparation d'honneur. No. 56, 79. Seigniorial Rights, No. 30, 44, 63. Surgeon, 34. Sale of Lands, No. 3, 12. Slander, No. 56, 79. Surety, No. 81. Scholars, No. 83. Tutelle, No. 5, 24, 42, 48, 51, 55. Tiers Saisi, No. 28, 57. Tallies, No. 43. Wall, No. 39. Water, No. 69. Work, No. 77. I. ; ! I '■ ) I : 11]' f.;' 1 hi li ■ , 462 I > I i CONSEIL SUPERIEUR. CONSEIL SUPERIEUR. JUDGMENTS RENDERED IN CONSEIL SUPERIEUR, QUEBEC, FROM 28th APRIL, 1727, to 1st MAY, 1759. No. 1. 1727, April 28. Rhumb de Vent of the second concession of Neuville, different from that in the first concession, confirmed in appeal. Peltier^ App., Peltier, Resp. Cons. Sup., p. 7. See case below Prdvost6, ante No. 1. No. 2. August 26. Costa of voyage and sijour allowed as well as interest omitted below. Mercereau, App., Vicbl^ Resp. Cons. Sup., p. 8. No. 3. 1728, July 12. Permission granted to sell a land in St. Frangois de Sales, by three affiches published at the door of the parish church at the close of high mass, and also at the principal manor house nearest the land, on three consecutive Sundays, the land being of too little value to bear the costs of a decret. Bazil, App., Barbel, Resp. Cons. Sup., p. 9. No. 4. August 9. Order to furnish with movables appartments leased con- firmed, reserving to the conseil d faire droit in case of complaint as to noise made by the tenant. Leger et ux, App., Maufils, Resp., p. 10. See case below. Privosti, No. 11. No. 5. August 9. Petitioner dischai^ed from being tutor to the children of a second marriage, he being subrogi tuteur to the children of a first marriage. Gratis, Petr. Cons. Sup., p. 10. No. 6. 1729, February 25. Voluntary appearance of parties without assig- nation recognised, and acte granted of the naming of arbitrators. Amariton et al. vs. Leduc. Cons. Sup., p. 11. No. 7. April 25. Daughter ordered to be given back to her father, who was charged with her board and education, without charge or diminution of her property. JUarcou, App., Nbrmand, Resp. Cons. Sup., p. 11. See case below. Privosti, No. 16. No. 8. June 27. Appeal dismissed for want of diligence on the part of the appellants. Mainville et al., App., Parent et al., Resp. Cons. Sup., p. 12. No. 9. August 22. Foreclosure against a respondent. Landron et nx., App., Gaillard et ux., Resp. Cons. Sup., p. 12. No. 10. August 22. Form of proceedings in appeal. The appeal of defend- ants dismissed, on oath of the plaintiff, the appellant being master of a vessel about to sail before the vacation of the Conseil Supirieur. Appellant condemned to three sols amende pour fol appel, and to costs. Barolet, marchand, App., Galocheau, captaine de navire, Resp. Cons. Sup., p. 13. CONSEIL SUPKRIEUR. 463- I et ■MX., App., No. 11. 1730, August 28. Order that a surveyor who had refused to operate •without consignation of twenty livres, do act at the request of the parties or in default thereof that another surveyor he employed. Labcrge et al. vs. Lamorille, arpenteur. Cons. Sup., p. 14. No. 12. 1731, January 8. Reghment prohibiting the lieutenant-general of the Privoste and all other inferior judges, from taking cognisance in future of demands to be allowed to sell real estate on simples affiches et puhli' cations, on pretence of the small value of the lands to be sold. Cons. Sup.. p. 14. No. 13. March 19. Condemnation par corps against a gardien who failed to produce goods under seizure. Gilbert, App., Joignet, Resp. Cons. Sup., p. 15. No. 14. 1732, July 28, Injunction from entering a first default, and order tO' give new afsignation. Gazon, App., Religicuses de V Hotel Dieu, Resp. Cons. Sup., p. 15. No. 15. September 9. Appeal dismissed. Judgment amended, and on a goat being given up, abandoned, for damage done by it, parties put out of court, the respondent paying costs of both courts. Normand, App., Lajou, Resp. Cons. Sup., p. 16. No. 16. October 13. The drawer of a lettre de change discharged quant it present until proof of diligence by holder. Le/cvre, App., vs. Sorbes. Cons. Sup., p. 16. No. 17. December 11. Nullity of a donation pour cause de demencc. Con- firmed in appeal. Guillot et at,., App., Ilaimard, Resp. Cons. Sup.^ p. 17. See case below. Pr&voste, No. 22. No. 18. 1733, Feb. 9. Confirmation of a judgment dismissing an opposition to a marriage. Louet, App., Willitt, Resp. Cons. Sup., p. 18. See case below, Prevosti, No. 32. No. 19. February 9. Ofifers made to a bailiflF declared valid. Amiot, App., vs. Duperi. Cons. Sup., p. 19. See case below, Privosti, No. 31. No. 20. May 11. Judgment amending a judgment of the court below granting delay for payment of a lettre de change, and contrainte par corps ordered. Corbiere, App., Guilmin, Resp. Cons. Sup., p. 20. No. 21. July 6. Lease resiliated. Condemnation of respondent to "pay the current quarter's rent, and also to pay four months' rent as dommagement. Judgment below amended. Davienne, App., David, Resp. Cons. Sup., p. 20. No. 22. July 13. Judgment amfinding a sentence giving delay of payment for a billet, and omitting to grant contrainte par corps. Jayat, App., Marsal, Resp. Cons. Sup., p. 21. I ■ •J^ iii; , \ « ii' I ■ ; 1 1 1: h: 1 f» i '.:? \<- • ! 1 - i .'<■■■ ( ; i' f« ,1 '1 1 : 1' : ',1 Nj ',': v'i ^* MmM^ iii! ' 464 CONSEIL SUPERIEUR. No. 23. July 20. Judgment not admitting contrainte par corps against the widow of a merchant. Gouze, App., Lambert Veuve, Resp. Cons. Sup., p. 21. No. 24. 1734, January 11. Injunction to the lieutenant-general of Mon- treal, and all other jurisdictions, not to proceed to the nomination of tutors to minors, or to any other acts aflFecting them, without the presence of the procurour-gdndral or his substitute, or in their default by sickness, &c., in that of the oldest praticien. Daillehout, App., Charly, Resp. Cons. Sup., p. 22. No. 25. March 15. Defense to all bailiffs and judges from paying attention to saisie arrtt made on billets ou promesses sous scign priv6, Palin, App., Guillemin, Resp. No. 26. Deo. 6. Judgment condemning a donee to give a Ugitime. Metot, App., Maufait, Resp. Cons. Sup., p. 23. See case below, Pr6vosti, No. 31. No. 27. 1735, July 4. Judgment ordering that on the proceeds of an insol- vent estate, and after payment by privilege of the costs of afl&xing seals, inventory, funeral expenses, and le deuil de la veuve, (fixed at 150 livrcs), the dower and preciput should rank pro rata with a creditor of the deceased. Lapointe, App., Depleine, Resp. Cons. Sup., p. 24. No. 28. December 5. A tiers saisi discharged for want of signification, to the defendant, of the seizure made in the hands of such tiers saisi. Coriveaux, App., Levasseur, Resp. Cons. Sup., p. 25. No. 29. 1736, January 16. Congi given to a tenant declared good and valid, on condition that the proprietor himself was to occupy the leased premises. Rouillard, App., Dassilva, Resp. Cons. Sup., p. 26. No. 30. March 5. A saisie arrtt declared valid for the revenues present and future, of a seigniory. Coriveaux, App., Levasseur, Resp. Cons. Sup,, p. 26. No. 31. March 26. Judgment amending the judgment below for not giving contrainte par corps for a note against a merchant. Veyssi&re, App., Bateau, Resp. Cons. Sup., p. 27. No. 32. 1737, March 25. An appeal converted into an opposition, and the parties sent back to the Court of PrivostL Maisonbasse et ux., App., DupM, Resp. Cons. Sup., p. 28. No. 33. April 8. Judgment condemning the respondent to purge from hypo- thecs a land sold by him to the appellant. Duprac, App., Girard, Resp. Cons. Sup., p. 28. No. 34. April 18. Judgment in favor of a soi-disant chirurgien, and order- ing him to take out lettres de chirurgien from Sr. Lajus. Phlem, App., Turgeon, Resp. Cons. Sup., p. 29. CONSEIL SLTKIIIKUR. 466 No. 35. June 17. Judgment confirminn; the proceedings of the Court below, ■which ordered proof of signature by comparison of liundwriting. lioiiil- lanl, et al., App., Levasseur, Kesp. Cons. Sup., p. 30. No. 36. Juno 25. Judgment evoking the principal of a cause appealed, and deciding on tho merits. Coti, App., PhUlhcrt, Rcsp. Cons. Sup. p. 31. No. 37. October 14. Confirming an opposition to a judgment by default. Denis, App., IJich^, Hesp., procurcur du roi. Cons. Sup., p. 31. See case below, Frhostd, No. 70. No. 38. November 25. Judgment condemning appellant for rehcUion en justice, in threatening bailiffs to eject tlieui by coups de baton, and to pay fifteen livres to the General Hospital, and thirty livres in damages to tlie bailifl's, with all costs. Normand, App., (Jlvsse et id., llesp. Cons. Sup., p. 32. No. 39. 1738, July 7. Judgment condemning respondent to furnish nine inches of ground for building a wall three feet two inches in thickness, and to contribute to build it in thg proportion of nine inches to the height of ten feet only. Boisseuu, App., Iluhevt et al., llesp. Cons. Sup., p. 33. No. 40. October G. Interlocutory as to proof of a consignment of merchan- dise and rejection of the demand that they be delivered to the consignors. De Cussy et id., App., Giiigniere, llesp. Cons. Sup., p. 34. No. 41. October 13. Judgment condemning respondent to pay a conditional note in money. Cosse, App., Philibert, llesp. Cons. Sup., p. 35. No. 42. 1740, February 2. Judgment discliarging the appellant from being tutor, because he had five children living. Forncl appealing from actc naming him tutor ad hoc, and Laiioidlier de Boisder, llesp. Cous. Sup., p. 36. No. 43. April 11. Judgment confirming judgment below, condemning appel- lant to pay to the respondent for pains siir des tailles, on the oath of the respondent. Descurreau, App., Voyer, Resp. Cons. Sup., p. 37. No. 44. April 11. Confirming the judgment below ordering payment of the price of a land, deducting arrears of cens et rentes, Arnoidd dit ViUeneuve, App., Michaud et al., Resp. Cons. Sup., p. 37. No. 45. August 1. Judgment reducing the damages given in the Court below for injuring respondent's child with a harness, from fifty livres to six livres with all costs. Serte, App., Courtant, llesp. Cons. Sup., p. 38. See case below, Prdvost6, No. 101. No. 46. Nov. 14. Judgment relating to two curds as to the possession of the cure of Chateau Richer, and dismissing the demand of the respondent. Costs compensated de grace sans amende. Soupiran, App., Lecluisseur, Resp. Cons. Sup., p. 38. EB m. i.n L;i li 1 m 466 CONSETL SUPl^RIEUR. No. 47. November 28. DcJsistonicnt from an appeal. Afurrhmd, veuvr Crcnlt, App., Vcrgcat, Ilcsp. Cons. Sup., p. 39. No. 100. !l * w See case below, Prcuosti, No. 48. 1741, Juno 12. CELKnnATioN op Marriaor. — " Lc conscil a regu " ot reyoit lo procureur-jieni'nil »lu lloi appelunt coinnie d'abus do la dU- " penso dcs trois bans accordc'c par lo dit vicuire-genoral du diocil-se de " cettoville, audit Siourde Ilouvillc, mineur, pourepouser la Dmlle. Andri^, " liUc majeure, ticiit lo dit appel pour bien roleve, et f'aisant droit tant sur " icelui (lueoclui de la Dame veuve de llouville, mere et turrico du dit Siour " de llouville mineur, do la cdlebration du dit mariage, dit qu'il a ott5 mal, " nulloment, et abuxivement procedc' et c(jlobre ; declare lo dit mariage non " valablcment contracted, fait defense au dit Sieur de llouville et i\ la dite " Dmlle. Andre de prendre la qualito de mari et do femme, ot de se "banter et frequenter, sous les peines de droit; debouto Ics dits Sieur " et Dmlle. Andr'ti de leur demando en ri^paration portde tant par lour " rcquete du deux de ce mois, quo par lour acte du sept de ce dit *' mois do restriction do la dito requete, et les condamnc solidairement " en tons les depens dc la plainte et appel comme d'abus cnvcrs la dito " Dmlle. de llouville -.faisant droit sur le rcquisitoire du dit procureur- " general du Roi, fait defense i\ tons notaires do passer dos coutrots de " mariage de mineurs, que les dits mineurs ne soient dueraent assist($s et " autorisds de lours peres, m^res, tuteurset curateurs, qui signeront aux dits " contrats, ou qu'en vertu de procuration en bonne et due forme des dits " piires, meres, tuteurs ou curateurs, dont la minute ou expedition demcu- " rcva annexee au dit contrat, sans pouvoir par les dits notaires recevoir " seulement ni la ddclaration dcs dits mineurs de se porter fort de leurs " dits peres, metres, tuteurs, ou curateurs, ni leur promcsse de leur faire " agreer, approuver ct ratifier le dit contrat de mariage ; enjoint au vicaire- " g(jneral du diocise de cette ville, et t\ tous autrcs vicaires-gendraux d'ob- " server les ordonnances et constitutions canoniques, concernant la publi- *' cation et dispense des bans, laquelle dispense ne pourra etre accordee pour " marier des mineurs, sans le consentement des pores et mires, tuteurs ou " curateurs, ou qu'il n'y ait un jugement rendu en connaisance de cause, sur " les oppositions, ou ddfaut de consentement des dits pires et meres, tuteurs " ou curateurs; enjoint pareillement ^ tous curds et pre tres tant sdculiers " que rdguliers de marquer dans les actes de cdldbration de mariage, si les " contractants sont enfants de famille, en tutelle, ou curatelle, ou en la " puissance d'autrui, d'y dnoncer pareillement les consentements de leur " pores et mires, tuteurs, ou curateurs, ou jugements rendus sur les dites " oppositions, ou ddfivut de consentement, et d'y faire appeler et assister, " non pas seulement deux tdmoins, mais quatre tdmoins, suivant les ordon- " nances, ddits, ddclarations, et rdglements. Ordonne qu'en conformitd des " articles viii et ix de la ddclaration du Roi du 9 Avril 1736, les actes de " cdldbration de mariage «eront inserits sur les rdgistres de I'dglise parois- " siale du lieu oii le mariage sera edldbrd, et en cas que pour des causes C0N8EIL SUPERIEUR. 467 vcuvr CrenH, )W, I'rivosti^ conHcil a reyu bus de la dis- lu didCL'SO dc Dmllo. Andrt?, droit tunt sur c du dit Sicur u'il a c't(5 nial, t niaviago non lie ct !\ la ditc amo, ot do sc los dits Sieur tant par Icur ipt do CO dit soliduircinent cnvcrs la ditc dit procureur- cs controtg de lent ussist(5s et neront aux dita forme des dits edition demeu- )taires recevoir r fort de lours de leur faire oint au vicaire- gendraux d'ob- rnant la publi- 3 accordee pour res, tutcurs ou 30 de cause, sur meres, tuteurs s tant s^culiers mariage, si les itelle, ou en la ements de lour us sur les dites eler et assister, ivant les ordon- conformit^ des 36, les actes de IVglisc parois- )Our des causes " justcs et l(5gitiniCH, il ait 6t6 pcrinis de le C(5ljicl in this cause. Dumour tt (iL, App., Jchtnne, llesp. Cons. Sup., p. 57. No. 70. 1749, March 17. Judgment ordering an enqueto to be taken before the Ucut.-giniral dc la Fvecosti, who should decide until a definitive judg- ment; "sans I'appel au conseil si le cas y echet; et cependant le conseil '• fait defense aux parties de sc mddire, ni luefaire." lluU, A-pp., liuis^oji, et ux., llesp. Cons. Sup., p. 58. ' 7if' • i','1:.! :1' (■:'■ 470 C0N8EIL SUI'KUIUUU. No. 71. Soptonibcr 15. JuilLrinont sottin^^ iwido the portion of tlic judgment in n coiumorcial muttur, wliicli ordered tlio partiuM to go bcloro ufb'Uixi J'orten, App,, Devi(;nne$, llosp. Cons. Sup., p. 5D. No. 72, OrtobiT !). Judi;iiiinit sottin;,' umIiIo an ordnnnancc of tli(< lituitcnant- f^uneral of the privonti, (;ivinj; mniit to an oxocutiun issued. Jlmi/, App., Lucraix ct ux., Jlesp. Cons. Sup., p. GO. No. 7.3. 17.'')<>, February 15. A procurcur condoninod personally to costs of an opposition to a judj^nient. Sec conclusions taken by the parties, TlioiiKiH Cnti, on rcfiuC'te, dcniandeur, Etlmnc Simnrd, sur la dito rcquOto defendcur. Cons. Sup., p. (51. No. 74. September 14. Jndjj;nicnt confirniintj offers accepted by the parties in an action en rvveuiUnttion de. ynarchiintflKcx, and orderin*,' the fjfoods to be returned by the appellant for the amount due, at an advance of twenty per cent, on the price of purchase. Chaumont, App., Goguet, llesp. Cous. Sup., p. G2. No. 75. 1752. Confirming the judgment below for the payment of a debt on proof by the merchant's books (lirres dc coinpte) and on his oath, that they were sinca-ca et vMtubles. liriard, cabareticr, App., Payiis, negociant, llesp. Cons. Sup., p. 64. No. 70. 1753, November 26. Setting aside the judgment below, which or- dered payment of a d'.uairc et remploi on a house and property described. LanuU, tutor, App., Ilermier et ux., llesp. Cons. Sup., p. 65. No. 77. 1754, September 2. The judgment of the court below dismissing an action to cause les enduits of a house to bo made, on the ground tliat in the contract between the appellant and the late husband of the respondent, it was only stated that " la magonnc sera faite et parfaite," set aside, and ks enduits ordered to be made. BerUngiiet, App., Lambert, veuve de J. M., entrepreneur de inayonnerie, Resp. Cons. Sup., p. G5. No. 78. 1755, February 24. Judgment ordering to take the advice of neigh- bors or friends ivoisins on amis), for want of relations (of a mincure), on a projected marriage, and that such advice be mentioned in the contract of marriage, and in the parish register. The judgment of the court below dismissed the opposition of the appellant to the marriage of the respondent with the minor, and permitted the publication of the banns, and the cele- bration of the marriage. Jean Hiiffio App., Joseph Ruffio, Resp. Cons. Sup., p. 66. No. 79. 175(i, January 12. Confirming the judgment below for reparation d'honncur, and ordering further " lY tons huissiers sous peine de six livres " d'amonde, que lorsque les parties a qui ils feront des significations enten- " dront fairc dans I'instant, quelques responses, de trauscrirc en cnticr les " dites responses, tant dans Toriginal des dites significations, que dans la ii' hi . COXHEIL S(;i>h:niEUR. 471 "cnpio qu'ilH liii*'><('rniit tics diU's Nijriiificatiims iiux ditcs piirtii-H, ih iii.iiruVo " (|uc liu'(i|pii'M(iit ttitiilonuiit ciiiiloriiR'a rnriuinul ; IcMiiicllf.s rc^iHiiiMcsMi'nint "siniuc'M taut dans lu t'(p|iio, (juo (laii« I'luijiinal ; hi la iiartii- salt siiiiicr, ou " (|u'i] Kcru (locluiv <|u'i!llc ne lo suit, on no pent »ijrncr, tic co inti'i]ptlit';" ami tirdorin^^ tin; piihlicatitju and ie^i«ii'alii»ri ol" this aint in tlie pivvi sti- of t^ui^hcc and jiirUdirtliniH roi/ulm iif Mtintifal and Tlmi^ Hiviis, and tliat the substitutes of iho pri)cureur-j;i'ni'ral in tliosi; jurisdiftinMs >t'o to its execution, and certify to the C'on«eil sueh puhlicatiim and registration within tho usual delays. Amlri Liwruix, habitant, App., M. J''iii/ Autnint Ldiioiiilll'V, juf^o du PrcvoHtd do Notro Dume des AngeH, llesp. Cons. Sup., p. G7. No. 80. April 10. .Tud^'uient below (Otli A])ril, 17r)(!,) orderinff ttniuf /nirc droit, that tho appellant apjiear in court " jtour fairc .«u dt'claration s il n'a " pas prt)mis au Sr. Charly d'avortir lo dit Sr. Jinol six vioIh avunt la " doniando dont il csttjuestion " set usido, nnil jud ' ( !f ll 1. 1 ■'^wl i 474 INDEX. PAOB Arnold and Campbell 2G7 Arnold vs. Farriin IGO Arnold vs. Uppington 1C9 Arnould dit Villeneuve vs. Michaud 4G5 Arthur, Taylor vs 50 Arthur, et al., William vs 113 Arthur vs. Montreal Assurance Company 225 Ash et al. vs. Willet et Seymour etal... . 343 Asselin vs. Belleau 247 Assolin vs. Monjeau . . • 396 Astor vs. Benn et al 49 Atcheson, Quinn vs 61 Athenteum Fire Assurance Company, Somers vs 207 Atkins, Campbell and 403 Atkins, Quebec Building Society vs 269 Atkins, White vs 145 Atkinson, Wilson and 326 Atkinson vs. Nesbitt 88 Atkinson, Forbes vs 308 Atlantic — Hardenbrook 379 Attorney General pro Jleg. vs. Beaulieu. . . 398 vs. Black 119 vs. Chandler 119, 155 vs. Laviolette et al 31 vs. McPherson et al . . . . 289 vs. Ryan et al.* 254 vs. White 38 vs. Yule 97 See Regina vs. divers post. Atwater, O'Neil vs 119 Atwell vs The Western Assurance Co... 208 Aubin dit Mignault, vs. Lislois 19 Auclair vs. Low 175 Audet dit Lapointe vs. Hamel 334 Audy, Lognon vs 350 Audy vs. Ritchie 400 Auger vs. Gingras 13, 83 Auld vs. Milne 162 Aurora — Morrison 367 Aylmer Mutual Steam Mill Co., Kennedy vs. 157 Aylmer Matthew Lord, Harvey vs 259 Aylwin vs. Crittenden 53, 31 4 Aylwin, Cuvillier vs 25 Aylwin and Gilloran 231 Aylwin et al. vs. Alsopp et al 145 Aylwin vs. Judah 17 Avlwin vs. McNally 8 )i II 11 11 II )) Babia vs. Caron 310 Baby, Major vs 295 Baby, Castle vs - 313 Baby vs. Bernard 201 j Barbier vs. Verner PAGE Baby vs. Latellier 332 Bacon vs. Caron 1C4 Bacquet, Perrault vs 312 Bacquet, Rouleau vs 283 Badeau vs. Brault et ux 56 Bagg et vir vs. Wurtele 136 Baile vs. Nelson et al 251 Bailey vs. McKenzie et al 1G3 Baillargeon, Lell(5vre vs 384 Baillargeon and Rondeau 460 Bainbridge vs. Demers 18 Baird, Regina vs 120 Baker vs. Young and another, and Black- wood, intervening party, and divers, opposants 22, 138 Baker vs. Young 138, 1 39, 141 Baldwin vs. Fitzgibbon 144 Baldwin vs. Gibbon 305, 306 Baldwin et aL vs. Binmore etal 338 Ball, Chamberlin and 43 Ball vs. Lamb and Scriver, int. party .... 421 Ballantine vs. Worden 141 Ballard, Caroll vs.. 392 Balston vs. Pozer et al 232, 238 Bank British North America, McPherson vs 137 Bank British North America vs. Taylor... 23 Bank British North America vs. Cuvil- lier etal 26, 399 Bank of Montreal, Knapp and 47 Bank of Upper Canada vs. Alain etal 61 Bank of Upper Canada vs. Kirk 0" Bank of Montreal, Nesbitt and 342 Bank of Upper Canada, T.S. Lynch vs. Mc- Lellan 171 Bank of Montreal and Simpson 405, 406 Bank of Montreal and Glen 40 Bank of Montreal vs. Langlois 49 Batten vs. Desbarats 287 Bankier et ux. vs. Wilson G7 Banque du Peuple vs. Roy et al 150 Banque du Peuple vs. Gingras 15 Banque du Peuple vs. Donegani and Mar- tin, T. S 41,139, 262 Banque du Peuple vs. Gugy 306 Banque du Peuple and Gugy 202 Banque du Peuple, Desjardins and 139 Banque de Montreal vs. Langlois 49 Banque de la Citd vs. Saurln 27 Barbean, Regina vs 119 Barbeau vs. Grant 391 Barbel vs. Perot & Gilbert, T.S 458 Barber vs. O'Hara 187 294 INDEX. 475 PAGE 352 104 312 ,.. 2S5 5G 156 251 A 1G5 384 U 460 18 120 lother, and Black- party, and divers, 22, 138 138, i:i9, 141 144 365, 300 ore etal 338 48 ver, int. party .... 424 141 '. . . 392 232, 238 erica, McPhersou vs 157 Lerica vs. Taylor... 23 America vs. Cuvil- 26, 399 pp and 47 73 Alainetal 61 V3. Kirlc 67 )ittand 342 T.S. Lynch vs. Mc- , 171 iSimpson 405, 406 Glen 40 anglois 49 287 ion <>' Roy etal 150 aingraa 15 Doaegani and Mar- 41,139, 262 ugy 306 Gngy 202 jardins and 139 Langlois 49 aurin 27 119 ' 7. ' 391 ibert, T.S 458 187 294 PAGE Barbour vs. Fairchild 182 Bardy vs. Huot 312 Barlow vs. Richardson 249 Barnard, Vennor V8 2G6 Barney vs. JIarris 249 Bnrglet and Galocheau 4G2 Barrett, Cuthbert vs 59 Barrette, Lampson vs 188 Barrettc and Workman 79 Darry vs. Deacon 3 Barry vs. Harris 21, 111 Bates vs. Foley 289 Bates, Dinning vs 283 Bates, bankrupt, Beaudry, and Taaffe, syndic 39 Bates, in the matter of 93 Batten vs. Desbarats 287 Battle, Mead vs 29G Baudouin and Rouville 4U7 Baxter vs. Robinson 213 Eazil and Barbel 4(32 Bazin, Crevier and Heney 28 Beacon Life and Fire Assurance Company of London vs. Whyddon 307 Beacon Life and Fire Assurance Company and Gibb et al., 398 Beaubien, Durocher vs 406 Beaubien, The Cur^ and Marguillers of Cap St. Ignace vs 350 Beaubien and Husson 57 Beaubien et al., Durocher vs 40G Beaubien vs. Sirey 15 Beaucaire vs. Lepage 197 Beaudet vs. Beaudet 163 Beaudct, Deroussel vs 400 Beaudet and Dunn 406 Beaudet, Hall and 286 Beaudon, Dumontier vs. 106 Beaudoia vs. Dalmase 61 Beaudry vs. Guenette and Corporation of Montreal, opposant 106 Beaudry and Papin 228 Beaudry and Corporation of Montreal .... 106 lulry and The Mayor, Aldermen and Ci- tizens of Montreal 105 Beaudry vs. Proulx 412 Beaudry, Davis and 43, 278, 279 I Beaudry vs. Laflamme, and Davis, inter- vening party 43 I Beaudry, petr., vs. Dorion & McGee 271 Beaudry vs. Plinquet 283 Beaudry vs. Adams 231 Beaudry vs. Laflamme and Davis, T. S. 278, 299 PAOB Beaudry vs. Smart et al 254 Beaufield et al. vs. Wheeler 252, 297 Heaulieu vs. Lee 286 Beaupr^ vs. Burn 62 Beaupre vs. Martel et Martel, opposants.. . 188 Bdcliette, Petit vs 408 Bedard, Duchesnay vs 419, 428 B^dard, the case of 187 Bednrd vs. Dugal 187, 199 B6dard, Kennedy vs 144 Bedard and Corporation of St. Charles Borommi^e 130 BtSdard vs. Dorion ...«..,. 233 Bedigar6 vs. Hamel 0, 242 Begin vs. Bell 402 Belair vs. Gendreau and wife 17 Belair vs. Godreau 254 Belanger vs. Binct 183 Belanger vs. Holmes 360 Belanger vs. Taillefer 82 Belanger Ex parte 76 Belanger vs. Munn. 353 Belanger, Fafard vs 146 Bdlanger and Papineau 134 Belanger vs. The Mayor, Aldermen and Citizens of Montreal 102 Belanger and Durocher 16 Bdlanger et a!, vs. Cyr 82 Belanger and Mog6 285 Bdlanger vs. Les voque 280 Belinge, Cardinal vs 394 Bdliveau vs. Corporation of Montreal 102 Bdliveau, Bernier vs 280 Bdliveau, Macfarlane vs 67, 306 Bdliveau, Vigerand 27 Beliveau vs Sylvain 415 Bell, Saroni vs 21 Bell, Filmer and 92 Bell, Bresler vs 258 Bell vs. Wilson 11 Bell et al., Dinning vs 144 Bell, ;legin vs 402 Bell vs. Leonard 35 Bell vs. Rigney et al. and Milne, opposant. 342 BelWs. Conlin, and Sincennes, opposant 237 Bellanger vs. Desjardins 294, 299 Bellcau, Poliquinvs 327 Belleau vs. Ddgourdelle 412 Belleau, Regina vs 235, 301 Bellet vs. Allison et al 299, 300 Bellet Ex parte 154 BcUinghurst vs. Lee 21 Bender, Cherrier and 196 ■i li ' ' { "■ 1 1 i' '!r § 476 INDEX. 1 jlljr . ■' 1 , t..: ■ < 1 'l ' ( i^.'^i^ i ., PAGE Bender and Jacobs 197 Benjamin etal. vs. Clarke et vir 19C Benjamin et al. vs. Duchesnay and vir. . . . 39G Benjamin vs. Gore 220 Benjamin et al. vs. Wilson 60, 97, 223 Bcnn, Astor vs 49 Benning vs. The Montreal Rubber Com- pany, and Young, opposant, and Corn- ing etal., opposants 112 Benoit vs. Peloquin 284 Benoit vs. Tanguay, and Tanguay, plain- tiff en gar. vs. Bouthillier, defendant en gar 149 Benoit dit Marquet vs. Marcille 427 Benson vs. Ryan 304 Benson, Easton vs Ill Benson, Cochran and 218 Bentin vs. Stiles 50 Bentley, Hilliers vs 331 Bergeron vs. Panet 37 Berlinguet and Drolet 178 Berlinguet and Lambert, dor, 470 Bernier vs. Boisseau 179, 422 Bernier, Malhiot vs CO Bernier and Langlois 376 Bernier vs. Beliveau 280 Bernier vs. Vaclion 180 Bernier, Marois vs 117 Bernier vs. Beauchemin 280 Berry vs. Dixon 61 Berry and May 27 Berry vs. Cowan 185 Berry, Chaput vs 179 Bertlielet vs. Turcotte et ux.. 219 Berthelet vs. The Montreal and Bytown Railway Company & Guy et al., oppo- sants 265 Berthelet, and Guy et al 80, 265 Berthelet vs. Galarneau et al 144 Berthelet vs. Muir et al 230 Berthelot vs. Aylwin 400 Berthelot, Ross and 207 Berthelot vs. Sabourin ■ . 459 Bertrand vs. Gugy 220 Bertrand vs. Dickenson 368 Bertrand vs. Saindoux 193 B6rub^, Regina vs 127 Bezeau, Power vs 272 Biglelow, Keith vs 194 Bignel vs. Henderson 130 Bilodeau and Lcfran9oi3 4 Bilodeau vs. Syl vain 415 Bilodeau, Harper vs 42? PAfll Binet Ex parte .... ^ 212I Binet vs. Giroux ;f|^| Biroleau dit Lafleur vs. Lebel 1031 Birs dit Desmarteau vs. Aubertin \i^rA Bishop of Quebec, Wurtele and..;' osl Bisset, Stei)henson vs 53I Bisson et al. vs. Michaud et al suf Bissonette and Oliva 413J Bizalllon vs. De Beaujeu iigl Black vs. Ksson 4ij7| Black vs. Newton '. Black vs. Stewart 3io| Black, The King V8 119 Blackburn vs. Walker & Walker, opposant 284 Blackiston vs. Patton & Patton, mis en cause 94 Blackiston et al. vs. Rosa 30tJ Blackmon et al., Redpath vs n Blackwood vs. Chinic 5j Blake et al. vs. Panet et al 107, 25T Blair, Stuart and 3i l| BlaiSjGirard vs 32 Blais and Bouchard 325 Blais, Bussiere vs , 417 Blais and Siraonneau 351{ Blais vs. Lampson 3(|ij| Blais vs. Moreau 211 Bhmchard and Whiteford 39 Blanchard, Ruston vs 349 Blanchet vs. Jobia. II Blanchette vs. Berriau 3531 Blanchette, Guenette vs Ui^ Blanchette, Lynch and Blanchette et al., Guay and 10| Blanchette and Blanchette 42 Blanchette et ux. vs. Charron 3J Blanchette vs. Martin 40^ Blanchette vs. Th^rien 42 Blankensee and Sbarpley 28, 63 Bleau vs. Beliveau 11 Blouin adj. Lavoie vs. Plante 14(1 Blouin vs. Lebrun 19| Board of Arts and Manufactures for Lower Canada, McNevin vs Bogle and others againiiit Chinic, and Proulx and Bonnenfant, opposants .. 26l Bonneau, Gagn^ vs 31l| Bois, Regina and 321 Boisclerc vs. Religieuses de I'Hotel Dieu.. 451 Boisseau and Hubert et al 461 Boisseau vs. Pilot 36i Boisseau, Tyre and -^I Boissel and Dufrene ^'1 INDEX. PAnBl 2121 , 10 J 3, Lebcl IGsl 3. Aubertin 1891 irtele and..> jqI 53 lud et al 3ll| 413J ijeu il9J 4()tI . ..-. 358J , 3101 , 119 r & Walker, opposant 284 on & Palton, mig en 91 Rosa 30tJ path V3 17 5i t et al 107, 251 3i.ll 324J 325 417 a 3571 30i| 21lj eford 33 rs 34«i 1^ LU ^'A tV8 IWI id lay and ^^ cbette 4-J Charron 31 n H 421 en *'1 rpley 28, 61 11 s. Plante ^^ 191 anufactures for Lower in V! againiH Chinic, and nenfant, opposants.. 261 31lj ][[[[[, 32J sesdel'Hotel Dieu.. 451 etal ^^ m [\\\ m ' 41 477 PAOE Boissonnault vs. Oliva 418 Bonncina and Seed 342 Bonacitia vs. Bonacina 420 Bonncina and Mcintosh 160 Bonacina vs. Bonacina, and Gundlack, tu- tor, opposant 427 Bonacina vs. Bonacina and divers, oppo- sants 112 Bonncau vs. Qoudio 302 Bonneau vs. Moquin and Bonneau, fils, op- posants 151 Bonncau, Senecal vs 183 Bonner vs. Hamilton 237 Bonner, Johnston and 237 Eonncville, Dame Tavernier vs. and De Cliantal et u.Yor, opposants 236 I Boomer, Evans and 264 Booth vs. The Montreal and Bytown Rail- way Company 35, 99 I Bordier vs. Barnett et al 46 Borne vs. Perrault et al 68, 69 Borne vs. Wilson et al 83 ISoiquet vs. McGreevy 276 istun vs. Classen 15 I Boston et al., Stevenson et al. vs 361 iston vs. Leriger dit Laplante 355 , )3ton, Irwin and 359 i3ton. Sexton vs. .96, 121 [Boston, Fauteu.x and 410 ; iostoii, Leverson et al. and 95 Soston, Quintin dit Dubois and 360 Jostoii et al., and Taylor 36 lOjwel!, Jamicson vs. 215 ; iBoswell and Denis 418 ioswell and Kilborn 342 |Bo:(relladj. in McBlain vs. Hall 172; Bosffell vs. Lloyd et al 7, 295 Boswell and Kilborn et al 341 iBotineau (Ex parte) 76 I Botterel, Ursulino Nuns and 282 iBoucbard and Blais 325 Boucbard et al., Noad et al. vs 90 Bouclier vs. Asselin 303 iBoucher vs. Beaudoin 221 I Boucher, Labreque vs 194, 332 iBoucherand Lemoine 306 IBoucher vs. Casgrain 133 iBoucher vs. Forneret 239 IBoucher vs. Lemoine etal 303, 306 Boucher and Latour et al 49, 116, 398 Bouchcrville vs. The Grand Trunk R. R. Co 319 iBouchette vs. Tasch6 299 JBoudrean and Poutr^ 268 PAGE Boudreau vs. Richer 115 Boudreau et nl. vs. Damour 88 Boudreau, Delesderniers and 431 Boudreau, Loranger and 4 Boudreau vs. Lavender 23 Boudreau vs. Gascon 303 Boudria and Maclean 193 Boulanger vs. Wheat 196 Boulanget vs. Doutrc 230, 234 Boulanget and The Mayor, &c., of Montreal 101 Bourassa vs. Gariepy 99 Bourassa vs. Haws 251 Bourassa vs. Bcdnrd 430 Bourdage, Dupuis vs 205 Bourdngo Ex parte 102 Bouthiliier, Moffiitt and 122 Bouthillier, Torrance and 181 Bouthiliier vs. Turcot 34 Bouthillier vs. Turcot 275 Boutin vs. Bonhomme et al 450 Boutin vs. Le Breton 456 Boutin vs. Reopel 450 Bowen and Ayer 6 Bowen vs. Lee 117 Bowen vs. Molson 121, 221 Bowie vs. Skinner 57 Bowker et al., vs. Chandler 275 Bowker et al., Rice vs 45 Bowker vs. McCorkill 151 Bowman, Stuart vs 312 Bowman, Stuart and 6, 329 Boycr, Lina vs 310 Boyer vs. Sloane 263 Boyle vs. Arnold 132 Bradley vs. Blake 298 Bradbury, Pollock and 412 Bradford vs. Henderson 297 Bradshaw, Collins vs 43 Brassau vs. Hup6 499 Brautt, Maitriss^ and 16 Breaky, King and , 88 Brdhaut vs. Loupret et al 169 Brehaut et al. vs. Meran 156 Brent vs. Lees 46 Bresler, Macfarlane vs 162 Bressler vs. Bell 258 Bressler, Laing vs 250 Brewster, Whitney vs 121 Brewster, Joseph vs 141 Brewster et al. vs. Hooker et al.. . . . . . 71, 243 Briard and Payez 470 Bricaut, dit Lamarche, Pangman vs 350 Bridgeman and Ostell. 91 'ni :i ^! "» y lii '< V 1 i: 1 i 1 |- ! j li ; 1. ' 1 i * 1 1 ! t 478 INDEX. 1 ! 1 ■ 1 ii! M i MiM ..'4i PAOB Brighnm vs. McDonnell et al 112 Bristow and Rowland 24 Bristow V3. Johnston 253 British Fire and Life Assurance Company nnd McCimig .... 304 British American Land Company vs. Stim- son 8 BrltLh Tar— Oharleson 391 Brit sh American Insurance Company and Joseph 207 Bro dlt Pumlnville vs. Bureau 215 Brochu vs. Fitzback et al 4 Brocliu vs Bourgo 155 Brochii, Perrault vs 103 Brock et al. vs. Th6berge 304 Brockville and Ottawa Railroad Company, Frothlngham vs 293 Brodeur et ux., Dalp6 dit Pariseau vs. . . . 145 Brooks and Whitney 96 Brooks et al. and Clegg 63 Brossard vs. Murphy, and Murphy en gar. et St. Hllaire, def. en gar 183 Brosseau, petitioner, and Bissonette, deft.. . . 246 Brown vs. Ilogan etal 315 Brown et al., City Bank vs 400 Brown, Gale vs 60 Brown vs. Mclnenley 237, 330 Brown and Laurie 86 Brown, Grant and 233 Brown vs. Mallloux et al 90 Brown vs. Clarke 325 Brown et al., Wallace vs. . . . 173 Brown, Dow vs 56 Brown vs. Giigy 419 Brown, Matte and 108 Brown and Wallace 1 73 Brown, Moss et al. vs 287 Brown et al. vs. Hartigan 88 Brown vs. McHichon 236 Brown et al. vs. Smith et al 33 Browne vs. James 238 Browne vs. The School Oommissioners of Laprairie 348 Browning vs. Yule (sic) Yale 408 Browning vs. The British American Friend- ly Society 45 Browning vs. Gale (Yale) 408 Bruce, Regina vs 127 Bruce vs. Anderson 39 Bruce et al.. Hunt vs 395 Bruneau vs. Fosbrooke 167 Bruneau vs. Miller 22 Bruneau and Charlebois 171 PiOl Bruneau vs. Cormier (39 Bruneau vs. Moquin 151 Bruneau vs. Robert 347 Brunelle, Challld and id] Brunet vs. Desjardins 404 Brunet vs. Lee 287 Brunswick — Tully 331 Brush vs. Jones et al., et e contra 229 Brush vs. Wilson 27 Brush et al. vs. Wilson et al 151, 222 Bryson et al. and Dickson 130 Bryson vs. Hooker 233 Buchanan et al. vs. Cormack 312 Bull vs. Cuvillier et al 55 Bunker vs. Carter 344 Bureau, Bro dit Pominville vs 215 Burke Ex parte 317 Burkitt et al., Wheeler et al. vs 19G, 197 Burns vs. Burrell 2, 240 Burns vs. Goudie 134 Burns vs. Gueux 25C Burns, Lee vs 103 Burns vs. Hart 138, 314, 337, 386 Burns vs. Richard 232 Burroughs, Ex parte . . 221, 304 Burroughs, Dewitt and 414 Burroughs, Molson et al. and.... 23, 109, 202, 219, 307 341 Burroughs and Simpson 401 Burry et al. vs. Shepstone et al 276 Busby, Archambault and 283 Busslere vs. Blais 417 Buteau vs. Duchesne 2I9 Buteau, Eraser et al. and 317 Butler and McDouall 396 Butts, L'Hoist vs 63 Byrne et al. vs. Fitzsimmons 136, 164 By town — Humphrey 370 Cadieux and Pinet 179 Cadoret, Martineau vs 219 Cadwallader vs. The Grand Trunk Rail- road Company 67, 255 Caiss^ vs. Hervieux 193 Caldwell vs. The School Commissioners of Riviere du Loup 343 j Caldwell vs. Mofifatt 307 j Caldwell vs. Patterson...' 63 Caldwell vs. The King 425 j Caldwell and The King, Meiklejohn vs. . ■ 430 Camillus — Howard 366 [ Camillus— Baird 363, 373, 375 | Campbell, Arnold and 267, 375 j INDEX. 479 PADS 08 151 347 181 404 287 381 t e contra 229 27 et al 151, 222 ion 180 285 rmack 312 5G 344 rillevs 215 317 et al. V3 190, 197 2, 240 134 250 , 103 138, 314, 337, 386 ^ , 232 ...221, 304 I 414 al. and....23, 109, 202, 219, 307 341 n 401 lone et al 276 ,nd 283 417 219 ,nd 317 396 "." 63 mons 136, 164 370 179 \ W, 219 Grand Trunk Rail- 67,255 "".*/. 193 lol Commissioners of 343 j ']//,.. 307 ]>*"*'[ 53 g, Meiklejohnvs... 430 366 : ".'.'".! '..'363, 373,375 1 267,375] PAC!E I Campbell and Atkins 403 Ciimpbcll et al. vs. Beattie or. Campbell et al. vs. Jones et al CU Campbell, Lovell and 172, 229 Compbell, Mary — Simons 3(j9 Campbell in Owens vs. Dubuc l.'J3 Campbell vs. Peltier 290 Campbell vs. Sheppard 420, 421 Campbell, Vaughan et al. vs 223 Campeau, Drapeau vs 353 Canac vs. Uatien 450 Canada Lead Mine Company vs. Walker.. 275 Canadian Building Society vs. LatVenaye. 143 Canadian Building Society vs. Laraon- tagne 9 Cannon vs. Larue 2G1 Cannon vs. O'Niel 3 Cantin, Ex parte, Dion et al., opposants. . 322 Cantin vs. Marcroix 310 Capellier vs. Petitclaire 453 Captain Ross — Marton 379 Curden and Finlay 161 Carden et al. and Finlay et al 55 Cardinal vs. Belinge 394, 425 Carignan and the Harbor Commissioners of Montreal 76 Carlisle vs. Sutherland 8 Caron vs. Casgraia 268 Caron vs. Michaud 157 Caron, Langevin vs 140 Caron, Leclerc vs 166 Caron Judge, competency case 24 Caron, Gauvin vs 397 Carpcnticr Ex parte 75 Carrier and Morriset ex relatione Regina. 75 Carrier vs. Angers 327 Carroll vs. Ballard 392 Carson and The Mayor, &c., of Montreal. . 103 Carter, Bunker vs 344 Cartier et al., Holmes vs 329 Cartier vs. B<5chard 192 Cartier, Att-Gen. pro Reg., informant, vs. Yule et al 97 „ vs. Laviolette et al 31 See Regina vs. divers. Att.-Gen. vs. divers. Cary vs. Ryland 195 Gary, Charlton vs 201 Casey vs. Villeneuve 286, 302 Casey vs. Goldsmid et al 26, 206, 228 Casey vs. Hervienx 193 Casey, Earl vs 415 ;rain vs. Boucher . , 133 PA Gil Cnsgrain vs. Chapais 407 Uasgrain vs. Fay 22, 341 Cnsgrain vs. Peltier 164 Casgrain, Caron and 268 Casson vs. Thompson 91 Castle vs. Wigley 305 Castle vs. Baby 313 Castongu6 vs. Masson et al I13 Cazelais and Ramsay, opposant 322 Cerat vs. Hepburn 238 C6rat vs. Stephens 238 Cbaill6 and Brunelle I8I Chabot, Ex parte, petr. and divers, oppo- sants 322 Chabot et al., and Furois 40 Chabot vs. Morissette '. . . . 408 Chabot, Noel vs 134 Chabot et al. and Sewell 113 I I Chalifoux, Fitzback vs 151 Chalifoux vs. Thouin dit Roch 408 Chalifoux vs. Thouin 407 Chalmers and The Mutual Fire Insurance Company of Stanstead and Sherbrooke Counties 208 Chalou V3. Montigny 458 Chamberland vs. Raymond 290 Chamberlln and Ball 48 Champagne, Laplante, dit Lavall^e vs. . . . 179 Champlain and St. Lawrence Railway Company, Roy vs 32, 317 Champlain and St. Lawrence Railway Company and Tremblay 318 Champlain and St. Lawrence Railroad Company vs. Richard 294 Champlain and St. Lawrence Railroad Company vs. Russell 144 Chandler and The Attorney-General 119, 153 Chantal vs. Gendreau 268 Chapeau vs. Chapeau 458 Chapais vs. Lebel 329 Chapedelaine vs. Morrison 285 G hapdelaine, Poutr^ and 29 Chapeleau, Mailld and 29 Chaplain vs. Provost 453 Chapman, Gosselin vs 24 Chapman vs. Clarke 98, 417 Chapman vs. Masson 153, 157, 158 Chapman vs. Nimmo 293 Chapman et al. vs. Aylen 284 Chapman vs. Blenerhasset 63 Chapman vs. Clarke, cur., and The Unity Life Insurance Association 98 Chaput vs. Berry 179 li.. !, %• 1 1 ^' i' 'ii .1 e'3 480 INDEX. PAOI Oharbonneau vs. Benjamia 415 Cbarest vs. Oliarly 454, 455 Gbarest and Roniprd 30 Cliarland vs. Jobin 334 Cbarlcbois vs. Ileadly 194 Cbarlcbois vs. Bastien 284 Charleson— The British Tar 391 Gbarlton vs. Gary 201 Gbarlotto vs. Chouteau et al. (Harvey) .. 355 Obarpentier, Piatt and 420 Gharron vs. Lizotte 18 Gharticr vs. McLeisb 115 Chasseur vs. liamcl 30G Ghaumont and Goguet 470 Ghaumont and Grenier 320 Gbaurettevs. Rapinet al., and Rapin etal., plaintiffen gar., vs. Loranger, defend- ant en gar 40 1 Ghavigny do la Tesserie vs. Despr^s 454 Ghef vs. Leonard et virand D6oary et al., Tiers Saisis 135 Ohennevert, Sen^cal and 278 Gherrierand Titus 117 Gherrier and Bender 196 Cheval dit St. Jacques vs. Morrin 87 Chevalier, Lamothe and 128 Glievalier, Ranger vs 288 Chinic et al. vs. Gervais 278 Glioale, Massoa vs 2i M; 1 482 INDEX. n ',-. I PAUI Cnmming ctal. vs. Mann, and amltli ot al,, <>|)|)().sitntH 177 CiiniiiM);liiiin, Lcvrrson vs Oft, 112, 2fiO Cur6 et Murgiiillturs of Chntcaiiftiiay, Uoid ftnd 201 Onsnck vs. The Mutual Insurance Com- puiiy of liufl'alo 209 Cusiitik V3. 1'rtton 38(1 Cusack, Ii'itx]mtrick vs 72, 243 Cud.-35'k- , , , ; , ■ Tii ^ ?.;:•;■ Vi: i^ lit Ir^'-!*^^ n I'll mil iP WB' ^ 11,;' PAOI Donogant And QuoHnel 26, 21)5 Duiu'Xiini vs. Clio(|iiuttu 1H4 Duiii'((aiii et al. va. Doiu'KaDi ct nl 21 Duiu-ll/ vs. NiikIC) ■^■■*1 McL)unuld,up]iuiinnt 180 Dotu'lly, Lfliuvre vd (J2 Doiii-liy, Talbot vi 03 Doiifliy, Jusejih vs 2tJN Dodli-y, peliiioiu'r, vs. Wurdley et al 4()7 Dorion nnd Hivot 3&7 Doiioii rt al., Foster ct nl , vs 03 Doriun, in Simpson vg. Delislo 411 Doi'vul vs. Lesp^ranue 303 Doi'win vs. Evans et al 4(1 Dorwin and lliitciiina 184 Dorwin vs. WaMoif 79 Douglass and Dinning 184, 213 Douglass, Moss and 153 Douglass vs. Parent 12, 340 Douglass nnd Dupr^ 28, 322 Doumoro vs. Olivier 4.5Q Doulre, lioulanget vs 234 Douire vs. Tliu .Montreal and By town Rail- way Company 291 Dontre vs. Green 174 Doulre vs. Green, and Elvidge, opposant. 192 Doutru vs. MeGinnis C4 Dow, Browne and 50 Doyle, (Daigle) Ex parte, certiorari 101 Doyle et al. and .Maclean 2G0 Duvle in McDonald, vs. Maclean 90 Drupeau va. Canipcau 353 ' Driipean va. Gosselin 353 Draper, Jlacfarlane va 2, 300 j Drolet vs. The .Mayor, &c., of Montreal. . . 103 Drolet, Pentland et al. and 29 Drolet, Herlinguet and 178 Drolet vs. Harnois et al . • 450 Droraohair, Pyne. . (Dumfries — Hugh) 380 Drouin vs. Beaulien 191, 422 Droiiin and Leblond et ux 4G7 Drummond et al., Hempstead and 54 Dub6 vs. Proulx 291 Dub6 et nxor vs. Charron dit Dncha.-me.. 430 Dube and Dube 170 Duberron va. Chaumerean 451 Dubeau vs. Dubeau 237 Dubois vs. Caldwell 282 Dubois vs. Dubois 34, 249, 283 Dubois, Hall and 334 Dubois, Quintin dit and Girard 428 Dubois and Lamotho et al 238 Dubois vs. Gauthier 237 Dubord, Larue et al. VB 349, 418 PiOl Dubiic, Darolie et al. ti \\% Duliue, .Mouji'au vs a!»S Dubue, Owens vg jij;) Duciirrelte vs. Ciiurlin 4',q Duchesnay vs. lt«5dard 419, 428 DuthcHnay vs. Evart 41 Duchesuay, Gugy and 280 Diiehesniiy vs. Turgeon 451 Duchesneau, Ex parte "12 Duchesnois vs. Giard 175 Diiclos vs. Dupont 420 Dueondu vs. Ilourgeois 409 DuVesne, Judoin vs., 3 L. C. Kep 189 Dufi'csne vs. Guevreuiont 89 Duff vs. Hunter 34 Dugal, llcVlard vs 187, 199 Dugiil, Uoniain vs 289 Duliamel, Adams hu • lo3 Duhamel vs. I!ellaiiger c Diinniiuc vs. Guillcinct 131 Duniii.", Mountain vs 297 Dumas vs. Patouelle. l Dumas vs. Viau dit Lespdrance 230 Dumfrieshire ; — Go wan 304, 386 Dumon, Xadeau vs.. .333 Dumont et al. vs. Chaurette 350 Dumontier vs. llaudon loo Dumontier vs. Couture 174 Dumouehel, Ex parte 70 Dumouchelle, Mod'utf, nnd Oirouard, opp. 91 Dun et al., McDonald et nl., vs 130 Duncan, Ilivirs vs 376 Duncan va Wilson, nnd Wilson, opi)08ant, and Wood, opposant ., 204 Dunn, Ellison va 78 Dunn, Ex parte, petitioner, vs. Beaudet, defendant 406 Dunn, Mount and 45 Duun, Beaudet and 406 Dunn, Kathan and 223 Dunkerley va. McCarthy 417 Dunlop, Joutras vs 62 Duplessis, Cholet va 57 Du|)unt va. Belanger 460 Dupont vs. St. Pierre 134 Duprac and Girard 464 Dupr6 vs. Hamilton 200 Duprd, Thibault va 32S Dupuia T3. Bourdages 26S Dupuis vs. Dupuis 27, 191 Dupuis, Tr^panier vs 300 Dupuis va. Surprenant et al 419 Durand va. Geneste 50 INDEX. 485 un 118 ;i!)fl Li:! 4r.c 410, 4.18 41 280 4:)i " 1 2 175 421) 409 3. Uep IH'J 89 34 187, 100 280 . ..• 103 G 131 207 1 ance 230 364, 38G 333 le 350 lOtl 174 70 Giroimrd, opi). 91 ,vs 136 376 ilson, ojiposant, 204 78 r, vs. Beaudet, 406 45 406 223 417 62 57 460 134 464 200 328 265 27, 191 300 "l*. 419 50 PAOR Hiirnnt vs. Diirnnd 1 4.1 r)iiri)('lic'r vs. Iloiuililuu et nl |oi; Duroclior v«. Moiiiifer 32(1, 2.13 nill'iifliiT, ll(Miltlj?cr iitirt 1<1 I)ii.4jiuit iiiid .Mdi'ou 4i)7 DiiviTiuiy Vi. Di'Siftiilles 168 Dydf, (iilmiMir vg 20i! Dyilc, IIi'tHlmw V-* H7 Dyke, .Muoro vs ,. ,, ,. 342 Enrle va. Ciisey 230, Kiirly vs. Moon Rii^toii v.4. Itpiison Kiiton, Vtiiiii't vs IMtiioiitlslone et al. v«. CliUds ot iil., mid Cliilils ct.iil. idiiiiitilFs en (laraulk", V8. Clmiiiiiiiii et 111. defendants en gwT- Rutio 182, Ed son, Wynmn nnd r"jj;nn, Smith vs Electric ;— Molten 380, 387, Klizrtlietli, The Eliziihplli ;— Nowell Ellcpsloy The, — Vickermiin Elliott ct al. and Uyan et al Elliott V9. The Wiuscales Elliott and Foley Elliott V3. McDonald, and Ryan, T. S Elliott and Howard Elliott v.s. Qastien et al Ellis, Withal V3 Ellison vs. Dunn Eloi dit St. Julien vs. Tonchette Ehves vs. Francisco CO, Ehvin vs. Royston Emmcrick va. Patterson et al Emmerick, Ilislop and Ensor vs. Orkney Equitable Fire Insurance Company and Quinn Esinhart, Ex parte Esinlmrtand McQnillen Esson vs. Black Esson vs. Everett Esty and ux vs. Judd and vir, and Judd et vir, opposant 145, Etna Fire Insurance Company, Grant and 211, Evans et al., Dorwin V3 Evans vs. Nichols Evans et al., Sims vs Evans and Boomer Evans in Hunter vs. Adams 41. -5 oi; 111 199 278 247 401 388 3H7 372 3S9 170 391 132 170 173 292 109 78 149 224 12 122 408 100 209 77 259 114 44 269 212 40 139 333 204 Evans V4. Smith K.xrlianjje, Siininary of Qnelioc vs Ex [iiirii- lli'llan((iiiard and City Bank 333 Gibbon, Haldwin vs SCi Giboan el al., E.'c parte 38, 75 Gib:!()n and Weare 5 Giiron vs. llottc 291, 306 Gnigiiicres vs. Dessaliers 233 Gibson vs. Lee 287 Gilbert nnd Joignet 4G3 Gildersleeve, Kerr vs •. 391 Gillespie vs. Percival 123 Gillespie et al. vs. Spragg etal., and McGill et al., gar., and Hutchinson etal., int. parties 35 Gillespie vs. Sjiragg, et al., and divers, int. parties, and William Munn et al., l)etitioner3 par reprise d'instance 299 Gilley vs. Miller 32 Giliin V3. Cutler 42 Gilbiran, AyUvin and 231 Gilmour, Torrance et al., vs 398 Gilraour Ferguson vs 134 Gilmour and Ferguson 227 Gilmour, Minor and 417 Gilmour vs. Dyde 206 Giltener and Gorrie 197 Gingrns, Banque du Peuple vs 15 Gingras, Rentier and 36 Gingras, The King ex relatione, Coffin vs. 84 Gingras, Augers V3 83 Girard vs. Blais 324 Girard vs. Lemieux 191 Giran'i & Quintin dit Dubois 146, 428 Girard etal., David vs 346 Giiouard vs. Beaudry, 3 Jurist 1 Gironiird and Moffat In re Dumouchelle. . 274 Girous vs. Binet 246 PAGE Giroux, Binet and 104 Giroux vs. Gautliier 78 Giroux vs. Gautliier, and Giroux and Mon- genais, opposants 78 Giroux vs. Mdnard 117 Glackmeyer, Tetu vs 120 Glnckmeyer and Perrault 51 Glackmeyer vs. The Mayor, &c., of Quebec. 420 Glackmeyer vs. Day 234 Glass vs. Joseph et al 34, 314 Glen in the Bank of Montreal, Ex parte... 40 Glencairn — Crawford 37i Globensky et al. vs. Laviolette et al 422 Globensky, Leelair vs 224 Globensky, Paquette and 129 Globensky and Leprohon 1 76, 282 Glouteney vs. Lussier et al 309 Godbout vs. Giroux 117 Goldsraid, Casey vs - 26 Goldsmid, Casey and 228 Goodenough vs. D'Estiraauville 258 Goodman, Ex parte 75 Gordon et al., vs. Pollock 8, 376 Gordon, a Bankrupt 40 Gordon, Hogan vs 63, 66, 224 Gordon vs. Henry 337 Gore etal., and Gugy 284 Gorrie vs. The Mayor, Aldermen, and Citi- zens of the City of Montreal 3, 163 Gorrie, Giltner and 197 Gorrie vs. Herbert and Herbert, opposant. 17 German, Murray vs 324 Gosselin, Frechette vs 145 Gosselin vs. Chapman 24 Gosselin, Drapcnu vs 353 Gosselin, and Grand Trunk Railroad Co. . 347 Gotron vs. Corriveaux 421 Goudie vs. Langlois 256, 258 Goudio vs. Legendre 134 Gould, Ex parte 73 Gould vs. The Mayor, Aldermen, and Citi- zens of the City of Montreal .... 100, 232 Gould and Sweet 30 Gould etal. vs. Binmoro et al 338 Gourdeaux vs. Desmolier 457 Gouze and Lambert 464 Graham vs. Whitby 282 Grainger and Parke 424 Grand Trunk Railway Company of Canada, Marshall vs 318, 319 Grand Trunk Railroad Co., Ex parte 232 Grand Trunk Rariload Co., Legendre vs. . 320 Grand Trunk R. R. Co., Kierkowsky vs... 352 H 1 ■ I J' INDEX. 489 PAOK I Grand Trunk R. R. Co., Cndwnllnder vs.G7, 255 i Grand Trunk R. R. Co., Go.ssclin and 347 \ Grand Trunk Railroad Company and Cor- j poration of Ldvis 108 ' Grand Trunk Railroad Company, T. S., in Fitzpatrick vs. Cusack 72, 2J.3 ^ Grand Trunk Railroad Company of Ca- i nada and Mountain and Huston ... 70 t Grand Trunk Railway Comjiany of Canada, and Webster 415 ! Grand Trunk Railway Co. vs. AVebstcr.. . lo;! ' Grange, Harbor Commissioners of Jlon- I treal and 383, 385 Grant and Princii)al OfReers of the Ord- | nance 352 ' I Grant and Brown 233 ' Grant vs. The Etna Fire Insurance Co. 211, 212 Grant vs. Plants 425 | Grant et al. vs. Percival 258 | Grant et al. vs. Wilson 57 ^ Gratis, E.x parte 4G2 Gravel vs. Bruneau 404 Gravel vs. Girard lOG Graveley, Hussell and 28 Graves vs. De Belcourt 452 ; Graves vs. Scott 237 Greaves and Macfarlane 10 i Green, Doutre vs. Elvidge 192 Green vs. Hatfield 05 1 Grcensiiiclds et al. vs. Gauthier 303: Greenshields et al. and Plamondon 55 : Gr^goire, Lavoie vs 200 ! Gregoire vs. Laferricre 335 i Gregory and Henshaw 215 Grenet vs. Marin & Fortin, T. S 459 Grenier, Vandal vs 156 Grcnier, McDonald vs 209 Grenier, Chaumont and 333 Grenier, Parant vs. 304 Grenier and Leprohon 170 Grenier et vir vs. The Monarch Fire and Life Assurance Company, 3 Jur 100 Grcnier vs. Chaumont 326 Greves vs. Fisette 311 Grey vs. Todd et al 138 Griffin vs. Phillips 46 Grinton vs. The Montreal Ocean Steam- ship Company 307 Groom and Boucher 30 Grouard vs. Beaudry 274 Guay and Blanchette et al 104 Guay vs. Boily 359 Guay, Ex parte 75 rAGB Guay, Gu(5nard vs 334 Guay vs. Hunter.. 377 Guay vs. Labclle 133 Guay vs. Lefebvre 1 Rev. de Jur. (384). . . 234 Guay vs. Peltier . . , 56 Giiunard vs. Guay 334 Guenet vs. Gcndron 213 fiuenette vs. Blanchette 140 Gucvromont vs. Laniere fils et al 305 Gugy, Banquc du Peuple vs 306 (!ugy, liertrand vs 220 (Jiigy, Brown vs 150,396, 419 Gugy and Chouinard 231, 352 Gugy vs. Donagliue ■ . . ., 97 (Jugy and Duchesnay 286 Gugy, Ex parte 126 Gugy and Ferguson 28, 135 Gugy and Gilmore 424 Gugy, Gore et al. and 284 Gugy vs. Gugy 25 Gugy vs. Kerr Ill, 130 Gugy and Larkin 52 Gugy, Renaud and 152, 323 Guilfoile vs. Tate et al., and Tate et al., oi)posants 167 Giiiguiere vs. Fouchcr 454 GtiilU'mot, Dumainc vs 131 Guillot and Haimard 463 Guy, Berthelet and 80, 205 Guy vs. Chirkson, and Maclean, adj 140 Guyon dit Lemoine, Lionais and 152 Guyon vs. Gravelle 453 Hagan and Wright 80 Haidee (The), Kempthorn 362 Haimard vs. Guillot 453, 454 Halcro and Delesderniers 301 Hale and Buisson et u.x 469 llalferty, Mann vs 94 Hall and Thompson 9 Hall and Beandet 286 Hall, Dubois vs 334 Hall and Dubois 334 Hall, Mclllain vs 172 Hall vs. Douglass, and McDougall ct al., adjudicataires 140 Hall vs. City of Boston 103 Halpin, Ryan and 86, 203 Hamel et al. vs. Cot6 et al 66 Ilamel, Jobin vs 189 Hamel vs. Joseph 291 Hamel, Chasseur vs 396 Hamelin, Lenoir vS 428 I I 490 INDEX. i I ; I :.i hi ' A'; • 11 ' ,• t; . ; ; , ; ■ ; ■F' ' ' i ■ ■ ' *■ ' a A A:l Isabella— Miller 3(!l Ives, Sliiurt and •! Jnckson pt iil. ivml Piiqucl. Jackson, Dean and Jackson, I'^aliey and Jackson, I^anonelti! and. . Jackson, Ilobhs vs 318 ■ill ir.o 14 23!) Jackson vs. ('oxwortliy ct al Jackson vs. Frasor Jackson vs. I'aijjo ct al Jac(|iies vs. I{oy et al Jaci'eau v.q. Dasilva James McKenzic, Tlio Janiieson vs. l?os\vcll Jameson vs Larosc Jamson vs. Woolsey Jane— Custanco 370, Jane, Case of I ho 3!)2, Janot vs. Allan! Janvi'in vs. Leniesnrler Jany and Trust and Loan Company Jayatt and Marsal Jeanne vs Caldwell 25('>, Jell'eiy, Dinning vs JelVery, Shaw and Jelianne and Duoafoy ct al Jenkins, Iliisscll vs Jcreiiiie vs. l^ollorgct Jcrvis'vs. Kelly Jetti' and ChociMCtte Jews, IVirtugueso vs. David et al Jobin vs. ILuuol Jobin vs. Morrisset 229, Jodoin and Dnfresne, 3 L. C. Rep Jodoin vs. Dubois John and XIary John Counter— Miller John Munu — Ricliardson 370, Johnson vs. Clarke Johnson vs. Arehambaull Johnson ct nl. and Lomer Johnson vs. Whitney 152, Johnston, Clarke and Johnston, Langlois vs. Johnston and Honner Jolin, .McKenzie vs Joly vs. Gagnon Joly, Ritchie and Jones and Anderson Jones et al., Campbell et al. ts :>; 3.'! 7 27r> 21tl 7 185 177 Ai\H 23-t 4-10 3(; 250 304 ISO 234 ISO 102 375 373 3 75 45 100 11 229 308 300 237 21S 418 280 240 C9 PACE Jones, Fnller nnd 120 Joni^s vs. (iondie 44 Jones vs. Hart 42, 43 Jones vs. F^ang 399 Jones and licmcsnricr et al 90, 236 Jones vs. McNally ... 291 Jones et al. vs. .Moran 290 Jones vs. i'elleson 4G Jones, Qnchec Itiiilding Society vs 117 Jones, Robertson vs 89 ^ Jones, Roe v.s 1G4 j Jones vs. M'hitty 42 ; Jones vs. Wilson 4G Jones el at. vs. V'oung 70 Jones vs. yauninr dit Mars et Lcdonx, I T. S 117 Jordan et nl. vs. Spragg et al. nnd McGill ct al., garnishees, and Hutchinson et al., intervening parties 299 Jordan nnd nadriore 197 Joseph vs. Delisle 4G Joseph vs. Cuvillicr ct al 358 Joseph and Leslie 190 Josei)h vs. Brewster and Haldnnc 141 Joseph, Hrilish American Ins. Go. and... 207 Joseph vs. Hutton 44 Josc]di, Footner and 342 Joseph vs. Ostell 32 I Joseph vs. Donnelly 268 j Joseph vs. Laing 399 Joseph vs. Cay, and Cay, opposant 23 Joseph vs. Castonguay et al 410 j Joseph vs. Morrow et al 165 Josepha — ircTntyre 386 Jourdain and Mivillo 87 ; Jourdain vs. Vigoreux 12 Joutras vs. Dnnlop 62 Joyal, Farnnm vs 283 I Judah vs. Lavoio 231 I Judah. McCarthy and 90 Judah vs. Rolland 17, 184 Judah, Aylwiu vs 17 ' Judd and Esty 145 J.... vs. R 147 Katham nnd Dunn 223 Kay and Simnrd 144 I Kay et al., 'W.\. 10.. vs 292 Keith vs. RigtioiV 194 \ Kellnm, Osgood and 289 Kelly vs. Horan 59 Kelly, Hayes vs 251 , Kelly vs. Fraser 264 INDEX. 493 PAOB 120 44 42, 43 399 00, 236 291 290 40 cty V8 117 ,.". 89 104 42 40 70 3 el Ledoux, 117 il. nnd McGiU lliilchinson ct 299 197 46 358 190 danc 141 g. Co. and... 207 44 342 [ 32 268 399 hposant 23 1 410 165 , 386 87 , 12 62 283 231 90 17, 184 17 145 147 , 223 144 292 194 289 59 261 ..." 264 PAOB I PAOB Kelly, Jcrvis vs 30 Lnfrumboise, M?rcui'c nnd 90 Keltoii vs. Miuison 307 i Lngiicc vs. Coiirberon 179 Keui[) vs. Kemp 03 ' liiigiisscS vs. Dion 411 Kenricdy vs. AyliiRT .Mutual Steam Mill 157 Iiiij,'uu.\ vs. Cnsuult 42 Kennedy luid Smith 150 | liU;,'eux vs. Everett 44, 181 Kennedy, Supple iiud 144 Lagncux in Glacltmeyer vs. The Mayor of \ . Konuudy vs. Hodard 151 Kerr vs. Gugy m, 130 Korr vs. Gildcrsleevo 391 j Luliaies, Kx i)iirte Kerr and Livingston 345 Korr vs. .Munro 23 Kerr, Wilson vs 130 Kerrigan, Latham vs 325 Kerry et al. vs. I'elly et al. and Dame A. Watson, contesting 114 Kershaw vs. Delisle. 240 Keys vs. The (Quebec Fire Assurance Co. . Kil Kierko wsky ami .Morrison 302 Kierkowsky and Tlie G. T. R. R. Co 352 Kierkowsky vs. Lcsperance and Lesp«5- Quebec 420 Lagroix and Lamouillior 470 74 Luhaie et al., Ek ])arte 109 Lainc vs. Ciuimberland ct al 453 Laing vs. Hresler 250 Laing, Jones vs 399 Lajoie, Peltiiir vs x 187 Lajiis vs. Ilarfhelemy and Charesl, T. S... 458 Lajus vs. Pilotte 455 Lulande, Snowdon and 221 Lalande de Gazon I^es Rcligieuses de I'llo- tel Dieu. No, l.J 463 Lalande vs. Rowley nnd La Uanque du Peu- ple, o|)i)osant, et Lufrenaye et Papin, contesting, nnd 114 Lalaguye vs. Terrien 457 Lalonde vs. Lalonde 5, 115 Lalonde and Martin 14G Lalouptte dit Lebeau and Delisle et al. . . . 79 Lamarche vs. Lebroc GO Lamarche vs. Johnson, and Johnson en garantie vs. Masson 174 Lanibe and Mann et nl 22 Lambert and Gauvreau 430 Lambert vs. Lefranqois 238 Lambert, Lacroix nnd 346 Lambert vs. Bertrand 15 Kilborne, Ross well nnd 341 King and Rreakey 88 King, (Tlie) ex relatione Coffin vs. Gingras 81 King, Caldwell vs 430 King, Siwatt vs 83 King vs. Rlack 119 Kiugan vs. The Mayor, Aldermen and Citizens of the City of Montreal 103 Kingsley, Delesderniers vs 32 7 Kinnear, Starns vs 131 Kirk, Rank of L'pper Canada vs 67 Knapp and Dank of .Montreal 47 Knapp ct al. Murphy vs 121 i Lambert vs. Roberge 308 Labadie vs. Truteau 264 Lamirande, Marchand and 196 Labd vs. McKenzie 302 | Lamirande et uxor vs. Dupiiis 133 L'Abl<5e vs. Ritchie 174 i Lamothe and Chevalier dit Bienvenuc.. . . 128 Laberge vs. DeLorimier 2 i Lamothe et al. and Fontaine 353 Labroque vs. Boucher 194, 332 j Lamothe vs. Hutchins 423 Labrcquc, Fradet vs 4 Lamothe in Ex parte Lenoir 322 Lacombe and Fletcher It) Lamothe, Dubois and 238 La Corporation de I'Eveque de Montreal, ! Lamothe elal.etTalon dit Lesp6ranco. ... 354 Try and 331 ; Lamothe vs. Ross and Ross et al., oppos- Lacroix and Lambert 340 1 ants, and The Trust and Loan Com- Lacroix vs. Prieur 239 pany, opposant 428 Lacroix vs. Perrault de Liniere 214 1 Lamoureux vs. Camerlin 249 188 262 Ladriere, Jordan and 197 ; Lampson vs. Barrett. Lady, Seaton (The) Spencer. ..'..... 379, 382 ' Lampson, Lee vs La Fabrique de Vaudreuil vs. Pagnuelo.. . 159 Lafleur vs. Girard 146 Lafonde et al., Deromme vs 205 Lafontaine vs. Suzor et al 410 Lampson, Syraes and 19 Lampson vs. Smith 62, 384 Lampson, Hearn and 29 Lampson, Noad el al., and 316 I i '1 ' 1 -:tlUlEilMjn *',' 1 [ 1 1 r \ i •t ■ i : i i^:. 1 i ' 1 i-: ;■ ii'.'i ■ i I,' 494 INDEX. PAGE Lampson, Blals t8 300 Lnm[ison anil Wiirtele 402 •Lanctot, bankrupt, and McFarlane, credtr. 8a Landron et iix., Gaillard 462 Landry, Ex parte 75 Lane, Kx parte 41 G Lane et al. vs. Delage 200 Lane et al. va. Ross et al., et Ross et al., opposants 152 Langevin vs. Girard 459 Langevin vs. Caron 140 Langevin, Lesp^rance vs 167 Langley vs. Chamberlain. 180 Langley, Stuart vs 12 Langlois, Bernier and 376 Langlois vs. Daigle 221 Langlois vs. Darryson 2, 240 Langlois, Ex parte 110 Langlois vs. Gauvreau et al. 180 Langlois, Goudie vs 258 Langlois vs. Johnston 390 Langlois vs. Martel 355 Langlois, Poiilain vs 242 Langlois vs. Tach^ 134 Langlois vs. Trudel 351 Langlois vs. Verret 80 Langlois vs. Walton 257 Languedoc and Laviolette 192 Langucdoc et at. vs. Laviolette 201 Languedoc vs. White 141 Lanoix vs. Bellcrose 453 Lanoix, Ex parte 54, 453 Lanoix vs. Girard ; 452 Lanoix and Hermin et ux 470 Lanonette and Jackson 14 Lantier et Daoust 210 Lapcnsde, Anderson vs 2G0 Lapensde, Roy dit Palliserand 167 Lapierre vs. Thibodeau 179 Laplante dit Champagne, Lavall^e vs.... 179 Lapoint and Depleine 464 Laporte and Principal Officers of H. M. Ordnance 311 Laprise and Armstrong 31 Lareau and Rolland 353 Laricheliere, Pelletiervs 199 Larivd vs. Bruneau 159,288 Larivee vs. Fontaine dit Bienvenu 325 Lariviere in Marois vs. Rernier 117 Lariviere vs. Arsenault et al 407 Larkin, Gugy and 62 Larochelle vs. Pich^ and Pichd, interven- ing party 361 PAOI Laroche ts. Holt 33 Larocque et al. vs. Andres et al 60 Larocque vs. Clarke 61, 65 Larocque and Michon 248 Larocque and The Franklin County Bank. 98 Larocque et vir vs. Michon 248 Laroux vs. Winter 164 Larue vs. Crawford 2 Larue et al. vs. Diibord 349, 418 Larue vs. La Fabrique de St. Paschal .... 350 Larue, Panet vs 332 Larue, Lemelin and 36 Larue in Douglass vs. Parent 12, 340 Larue vs. Crawford 268 Larue, Cannon vs 143 La Sup^rieure de L'Hotel Dieu va. D4n^- cbaud 99 Laterriere and Houde 138 Laterriere vs. Simon 151 Latham vs. Kerrigan 325 Latouche vs. Latouche 2, 252 Latouche, RoUman vs 252 Latour vs. Masson 306 Laurent et al. vs. Labelle 235 Laurent dit Lottie vs. Stevenson 236 Laurie, Brown and 86 Laurier vs. Corporation du petit S6mi- naire de Ste. Therdse, Con. Rep 5 Laurin vs. Pollock et al 157 Lauzon vs. Stuart 159 Lauzon vs. Connaissant et vir 22 Lauzon et al. vs. Bellanger 195 Lavall^e vs. Laplante dit Champagne.... 179 Lavall^e et al. vs. DeMontigny 201 Laverdiere vs. Laverdiere 6, 300 Lavergne, Pouliot vs 326 Laviolette et al., Globensky and 422 Laviolette, Languedoc and 102 Laviolette, Poutr^ vs 185 Laviolette and Martin 191 Lavoie, Ex parte 273 Lavoie and Cre vier 52 Lavoie vs. Gr6goire 260 Lavoie and Gagnon 135 Lavoie and Regina 328 Lavoie vs. Plante and Blouin 140 Lavoie vs. Gravel 109 Lavoie, Cl^roux vs 24 Lawlor, Ex parte 106, 244 Lawrence vs. Hinckley 59 Lawrence and Stuart 199 Lebel, Chapaisvs 329 Laberge and Lamorille 463 INDEX. 495 PAOG Leblanc, Toiissaint et a1. vs 150, 193 Lcblnnc V8. Rollin and uxor 50 Leblanc, Thoiiin and 150, 193 Leblanc and Dclvechio 215 Leblanc vs. RoiisscUe 402 Leblond vs. Droiiin 457 Lebrocq, Lamaruhe ts 60 Leclairc vs. Globensky 224 Leclaire vs. Crapser 212 Leclairc, MacTarlane and 2G, 178 Leclerc vs. Caron and Lemoine 166 Leclerc vs. Labrio 440 Lcclcrc vs. Roy 18, 150 Leclerc vs. Ross 1 Lecours, Ex parte 73 Le Curd et Marguilliers du Cap St. Ignace vs. Bcaubien 350 Ledoux, Ex parte 110 Leduc and Btisseau 116 Leduc vs. Turcot et al., and Legcndre et vir, opposants, and Turcot et vir, in- tervening parties 27S Leduc vs. Tourigny 12, 243 Lee vs. Lampson 262 Lee, cs qunl, Martin et al. and 420 Lee vs. The Quebec Music Hall 132 j Lee, Beanlieu vs 286 | Lee, Tliibaudeau and 340 | Lee vs. Burns 103 | Lee vs. Taylor 169 Lee vs. Whitfield et al 304 ; Leeming vs. Cochrane 60 Leeming et al. vs. Robertson o 296 Lefebvre vs. Demers 149 • Lefebvre dit Vermette vs. Tulloch 61 ■ Lefebvre vs. Meyers 358 j Lefebvre vs. Th6tarddeMontigny.... 155, 161 Lefebvre vs. Vallee 66 402 Lefebvre, Stoddart et al. vs 312 Lefebvre and ux vs. Boyer 241 Lefevre vs. Blouin 455 Lefevre vs. Castlllon and T. S 453 Lefevre and Sorbes 463 Lcfort, Ex parte 82 Lefran(;ois, Lambert vs 238 Lefran^ois, Bilodeau and 5 Lefurgy, Shaw vs 326 Legault, Forbes vs. ■ 332 Legendre vs. Grand Trunk Rail Road Company 320 Legendre vs. Lemay 76 Ldger vs. Jacksou et al 368 Leger Maufils 462 PAOI Leggettqui tarn vs. Four gold watches and Garrett 123 Leglisse vs. Trudel 460 Lelievre vs " Mallory and Hart 4 Malo, Nye and 413 Malo vs. Wurtele 413 Malo, Ryan et al, and 48 Malo vs. Nye 50 Malo vs. Adhemar and La Banque du Peu- pie, T.S 415 Malo vs. Labelle 64 Mandigo ct al. vs. Iloyle et al 129 Mangeau vs. Turrene 310 Mann vs. Wilson 408 Mann et al. and Lambo 35,113,227, 154 Manuel vs. Frobisber 210 Marandeau vs. Boillard 450 Maratbon The, Horst 389 Marchand vs. Cinq-Mars 251 Marchand and Lamirande 196 Marchand vs. Renaud 374 Marchand and Vergeat 466 Marchildon vs. Mooney 114 Marcille et Fournier 161, 180 Marcotte et al., Gaudri vs 348 Marcoux vs. Ritner 234 Marcoux and Normand 462 Marfc . — Clorlte.. Marion nrnl I'crrln; . ■ .Marois vs. heniier. .. Marois and Alluiro.. Mar(|ui8 vi. I'oulln.. . Munpict and .Maruillo PAOO ... 307 ... 171' ... ir.i . 26, .-a . .. 3*»» »5, 4a!T Maraiiull vs. (irund Trunk Railway t'om- punyuf Canada 0,318, 319 Marsliall vs. Lambo 285 Marsoiais vs. Lcsago 23 Marti-au, Tutor, rs. Tdtreau 183 Martel dit Bilicvillc and I'etrimoulx 407 .Martel vs. Constantin 170 .Marti-I, Langiois vs 355 Martel, Tho.Mison and 207 Manila Sopliia Tiie,— Hericliot 307 .Martigny, Arcliambault and Lyonais 148 Martin vs. Cot^ 78 Martin, TcSlu vs 305, 327, 420 Martin, Lalondc and 140 Martin et al., Lee, cs qual 420 Martin, Re(^iiia vs 125 Martin, Laviolette and ■ 191 Martin vs. Martin 147 Martin vs. Morcau 335 Martinoau vs. Cadoret 219 Martineau vs. Corrigan 202 Martinuccio vs. Jaconclli 407 .Miiry June, The — Trescowthiclc 303, 380 Mary i5annatyne — Ferguson 373 Mary Campbell— Simons . . 309, 374, 375, 389 Mary & Dorotliy— Teasdale 303, 381 Mary Jane — Trescowlhick 378 Masson et al. vs. Choate 204 Masson, Latour vs 30G Masson vs. Tassd 170 Masson, Chapman vs 15 Slasson, Chai)man and 157 Masson et al. Castonguii vs 113 Masson ct al. vs. Corbcil 344 Masson et al. vs. Dcsmarteau ct al 402 Masson vs. Mullins, and the Seminary of Montreal, opposant 369 Massue, Swinburne vs 68 Matthews, Moreau vs 194 Mathewson vs. Western Assurance Com- pany 210 Mathieu vs. Letourneau 133 Matte vs. Brown 108 Maufait vs. Cbapau 452 Maufet vs. Metot 452 Maxham in Martha Sophia 367 Maxham et al. The Quebec Bank vs 230 •i'i oa i i 1 ( \' 498 INDEX. PA(IK Maximm ot nl. vi. Stiiflforcl 337 Maxwell, Heglna va 12? Miiy, Kerry and 27 ^faycr va, Tliomp«on ot al 202 Mayor ct al. vi. Scott, and Itonning et al., KiiriiiDliecs 112 Mayor, Ac, of Montreal, Drolot va 103 Mayor, &c., of Montreal, Leprohon and.. 2 Mayor, Aldermen and Citizens of .Montreal, Oorrie' va 3, 163 Mayor, Alilermenand Citizens of Montreal, Deaiidry and 100, lOG Mayor, Aldermen and Citizens of .Montreal, Houlangct and 101 Mayor, Aldermen and Citizens of Montreal, Ciiraon and 103 Mayor, Ac, of Montreal, Pigeon and Mayor, Ac, of Montreal, Wood and 98 Mayor, Aldermen and Citizens of .Montreal, O'Connell va 163 Mayor, Aldermen and Citizens of Montreal Watson and 103 Mayor and Councillors of Quebec, McPlier- son vs 105 Mayor, Ac, of Montreal, Bellnnger va .... 102 Mayor of Quebec, The, Glackmeyer vs. . . . 420 Mayor, Ac, of Quebec, vs. Colford 101 May rand vs. Beaudreau... 386 McAdam and Kingsbury 7 McAuley, .Molson vs 361 McBcan vs. Ucbartzch and Debartzch mia en cause, and Drummond, opp... 107, 194 McBlain vs. Hall 172 McCallum et al. vs. Delana Ill McCallura vs. Pozer 291 McCallum et al., Patterson et al. va 198 McCallum vs. AVood 229 McCann as. Benjamin 128 McCarthy and Judah 90 McCarthy, Dunkerley vs 417 McCarthy and Hart 34, 429 McCarthy vs. Sen^cal 183 McCarthy vs. Laurie 135 McCarthy etal. vs. Barthe 49 McCarthy, Georgen vs 52 McCaul, Harrington vs 249 McConnell, Shaw vs 250 McCord vs. Bellingham etal 263 McCormick, Robinson vs 291 McCarraic, McLean vs. . . 302 McCuaig, British Fire and Life Assurance Company and 304 McCulIoch, Ex parte 187 rAOB McCulIoch va. McNircn 33 McOlure vs. Hheppard 358 McClure and Kelly 4, 243 McDonald va. Seymour 40, 355 McDonald vs. Quinn 105 McDonald el nl. vs. Seymour 50 McDonald et al. vs, Miller et al 19 McDonald et al.. Miller va 206 McDonald va. Grenier 209 McDonald, Hymes vg 327 McDonald, Petr,Montrealand LachineUR. 319 McDonald vs. McLean 96 McDonald et al., David va 158 McDonald va. Dun ot al 136 McDonald et al., llrlgham vs 112 McDonell vs. Fraaer , 338 McDonell et al. vs. Collins 41, 238 McDonell vs. McDonnell 308 McDonell vs. Holgato. 41 McDonnell vs. Grenier alias Grinicr et Grenier, opposant 269 McDonal vs. Fraser 338 McDougall et al., Redpath et al. vs 400 McDougall, Cooper vs 407 McDougall va. McDougall 159 McDougall vs. Morgan 288 McDougall vs. Allan et al 08 McDougall vs. Torrance 64 McDougall, and the Corporation of the Parish of St. Ephrera d'Upton 108 McDougall vs. Allan et al 68 McDougall, Peter Dawson 274 McEdward, Stewart vs 157 McEl wee vs. Darling 133 McGarvey Mdtayer et al. vs 170 McGibbon vs. St. Louis dit Lalampe 290 McGill in Regina vs. Price 122 McGill and Pearce 29 McGill vs. Wells 297 McGillivray vs. Gerrard 422 McGillivray and The Montreal Assurance Company 25, 210, 211, 226 McGillivray, Plenderloath 222 McGinn, Morris vs 285 McGinn, and Browders 30 McGinnis and Hodge 239 McGinnis va. McOlosky 2 McGinnis vs. Ghoquet 411 McGoey vs. Griffin 289 McGrath vs. Lloyd 156, 268 McGreevy, Bosquet vs 276 McHugh, Pirrie vs 234, 304 Mclnenly, Brown vs 237, 330 INDEX. 409 rAou 33 358 , 4, 243 40, 355 106 60 A 10 290 209 ,, 327 LnchinollU. 319 90 " 158 ' 130 112 ' 338 41, 238 308 .'.'.' 41 18 Grinicr et 209 [[[ 338 t'ai. V3 400 407 * 159 //.'. 288 08 04 (ration of the 'Upton • 108 08 274 [[ 157 , 133 .'. 170 Lalampo 290 122 [,],,. 29 *".'" 297 "'"/. 422 real Assurance .. 25,210,211, 226 222 '//. 285 _\\V.". 30 yy/^, 239 '"/' 2 ........... 411 '''\ 289 ".' 150, 268 * 276 '/ 234, 304 ""..... 237, 330 PAOB Mcintosh vs. Dense 423 Mcintosh, Iloniiciiwi and 112, 100 McKiiy vs. Demers 170 MrKcnna vs. TahJ 31 McKcnzlo vs. ToUn 218 McKenzie, Labhd vs 302 McKcn/.ie in Adams vs. Hunter 110 McKi-nzle, Tiie .lumes 300 McKenzie vs. Tdtu et al 263 McKenzie ct al. vs. Douglass, and Brown et ftl 1(50 McKonzie vs. Toylor, curator LIS McKcn/.io et al. vs. Forsyth otal 172 McKenzie, Murdocli, Ex parte 240 McKerciier and SImp.son 3.1 McKlllip et nl. vs. Kauntz et al 2U McKutcheon vs. Price 218 McLaren ot al. vs. llutcheson, and Fra- ser 109 McLauglilin and Dradbury 324 McLean, Doyle, and 200 McLean vs. McCord 18, 423 McLean, .McDonald vs 90 McLean, Houdria and 103 McLean vs. Ross 258 McLean vs. McCormick 302 McLean vs. McCormick 302 McLean, Doyle and 200 McLean, McDonald vs 90 McLean, Roudria and 193 McLean vs. Ross 258 McLeish vs. Lees 300 McLennan, Lynch vs I7l McLennan, Thorn vs 401 McLeod vs. Meek 60 McMartin vs. Gareau 425 McGregor vs. McKenzie et al 308 McMaster and Walker et al 09 McNally, Jones vs 2^1 McNally, Aylwin vs 8 McXally vs. Shephard 358 McXamara vs. Meagher 252, 297 McNomee vs. Hines 109 McNevin vs. The Board of Arts and Man- ufactures for Lower Canada 87 McNider vs. Whitney 53 McQuiggan, Reginavs 124 McQuillan, Esinhart and 259 McRoberts vs. Scott 40 McTavish and Pyke et al 7, 210, 400 Mead vs. Battle 290 Mead vs. Reipert et al., and Bouthillier, opposant 221 I-AIIB Mcath vs. Fitzgerald 140 Mcalh v.s. .Mduaghan 140 Meek, McLeod va 60 .MeigH, lliti'licock vs 02 .Meikli'liaiu, Fowler and 377 Mcikli'jolin, I'ozer vs 395 Meikli'jiihn vs. I'onng et nl 32 Mciklcjolin vs. The King and Caldwell.... 430 .Mcikli'jolin, I'ozer vs 395 Mellona The— 2 Rev. do Jur 288 Melvil vs. Ireland 107 Mercereaii and Vidal 4(J2 .MercitT vs. Tiie Colina 384 .Mercier vs. Drilion 89 Mei'cier vs. ISlancliet 150 Mercier and Desaulnier 409 .Mercier vs. The Mayor, kc, of Jloutreal, and Rivet and Doray 103 Mere vs. Letoiirneaux 93, 161 Murcille, and Fournier ct vir 101, 189 .Mercure and Laframboise et al 90 Merkley vs. Cuvillier 7 Mernagli, Warner vs 39 .Merrill, Cornell vs CO Merrill, Smith vs 300 Merritt vs. Lynch 43, 44 Merritt vs. Tyson 22 Merizzy, and Cnwan 2.07 Messan vs. Gavreau 423 M(5tayer et ul. vs. McGarvey 170 Methot, Dionne vs 353 MtUhot vs. O'Callaglian 232 Methot vs. Sylvain, and Gibb, oppos 328 Metot and Maufait 404 .M^tivicr, Lenfesly and 250 M6tri3S(5 and ]5rault lu Metris3<5 dit SansfaQon et al. et Brault. .. 101 Meunicr, Sharing and 182 Meunicr, Durocher vs 233 Meunier vs. Cardinal 201 Meyers, Lefebvre vs 358 Meyer vs. Davidson 230 Meyer vs. Dougall 230 Midland, Pelletier vs 329 Michaud, Caron vs 157 Michaud, Sirois vs 140 Michaud et al., Bisson vs 311 Michon vs. Sleigh 114 Michon, Lnrocquc vs 248 Michon in Wilhall vs. Young 178 Mign»5 vs. Mignd 147 Mignier vs. Mignier 180 Milctte, Renicre and, 4 L. C. Rep S7 I , •' li -; ,1 I I ! V/Vr-/.'/ 500 / <'/ • INDEX. PAOB I Miller et al., McDonald et al. vs 19, 29G j Miller and Smith 275 Mills vs. Philbin et al .' . . 54 j Mills et al., and Robertson vs. Ferguson. . . 10 j Milne vs. Ross et al 251 { Minet and Eker 471 j Minor and Gilmour 417 Miramichi— Grieve 369, 375 Miranda vs. Gigon 453 Mire vs. Ld*tourqeau 29 Mireau vs. Ratelle 215 Mitchell, pet., and Brown et al., 3 L. C. Rep Ill Mitchel, Henry vs 49 Miville vs. Fay 181, 287 Miville, Jourdain vs 87 Miville vs. Miville 59 Miville vs. Roy 160, 253 Moflfatt and Bouthillier 122 MoflFdtt, Murphy vs 2G6 Mog6 vs. Lapre and Massue, opposant,and Morrison, opposant 221 Mog^ vs. Dupr6 330 Moir vs. Allan 41 Molson, Quebec Bank vs 49, 286 Molion vs. McAuley 361 Molson, Quebec Fire Assurance Company and 205 Molson and Renaud et al 37 Molson et al., Ilart et al. vs 217, 424 Molsons Bank, Leslie and 168 Molson etal. vs. Burroughs. . ..23, 34, 169, 202, 219, 307 Molson vs. Gauvin 13 Molson et al. vs. Renter et al 297, 220 Molson et al. vs. Walmsley 390 Molsons Bank vs. Faulkner et al., and Faulkner et al., opposants 285 Molsou et al., Richardson vs 250, 394 Molson et al., Maitland et al. vs 366 Monaghan, in Joseph vs. Donnelly 268 Monaglian vs. Benning 80 Mondelet vs. Power 231 Monette, Hogue and 74 Mouette, Hitchcock and 29 Mongenais, in Giroux vs. Gauthier 78 Monrainny vs. Tappin 288 Montferrand, Dame, vs. Chevalier, 1 Rev.. 81 Montgomery vs. Gerard et al 276 ; Mc'-jeau vs. Dubuc 398 I Monjeon et ux. vs. Turrene dit Blanchard. 284, 310 j Monk et al. vs. Viger 37 | PAOB Monk vs. Morris 350 Monk, Ex parte 118, 272 Monroe et al. vs. Higgins 162 Montizambert, in Brown vs. Clarke 325 Montizambert and Talbot dit Gervais. . . . 332 Montizambert, in Murphy vs. Watt 265 Montreal and Lachine Railroad Company, Ex parte, and Seers 320 Montreal and Bytown Railway Company, (The), Doutre vs 291 Montreal Assurance Company, Arthur vs. 225 Montreal and Bytown Railroad Company, Abbott vs 269 Montreal and New York Railroad Com- pany, Germain vs 319 Montreal Assurance Co. and Aitkin 225 Montreal Assurance Company and Mc- Gillivray 25, 210, 211, 220 Montreal Provident and Savings Bank vs. McGinn 285 Montreal City and District Building Society vs. Kerfut et al 397 Montreal Mutual Insurance Company vs. Dufresne et al 41 Monty (Montz) vs. Ruy ter 128, 305 Moodie vs. Vincent and Hutchins 275 Mooney, Marchildon vs 114 Moor vs. Dyke 242 Moquin, Raphael, Ex parte 73 Moore vs. Muir 2, 387 Morasse vs. Guevremont 271 Moreau vs. Richer 160, 347 Moreau and Motz 27, 217 Moreau vs. Matthews 194 Morrough vs. Munn 310 Moreau et vir vs. Leonard 202, 215, 216 Moreau and Parent 469 Morgan vs. Forsyth et al 387 Ilforgan et al., Warren and 66 Morin vs. Lefebvre 13 Morin vs. Lefebvre 416 Morin vs. Peltier 420 Morrin vs. Arcan 345 Morrin vs. Peltier 8 Morkill and Cavanagh 293 Morland vs. Dorion, and Sauv^ et ux., opposants 324 Morough vs. Iluot 299 Morrill vs. McDonald et al., and Ross et al., opposants 113 Morrill vs. Unwin 9 Morin vs. Daly 79, 324 Morin vs. Smith 328 INDEX. 501 PAGE Morria V8. Legault dit Desloriera 43 Morris, Monk vs 350 Morria vs. Antrobus 168 Morris vs. McGinn ,. . . 285 Morris et al. vs. Unwin et ux 155 Morrisset, Regina, ex relatione vs. Car- rier In Morrissette vs. Jodin 135 Morrison, Kierkowsky and 301, 302 Morrison, Chapdelaine vs 28G Morrison, Cot^ and 51 Morrison vs. The Grand Trunk Railway Company of Canada 320 Morrogh vs.Munn 310 Morrogh et al., Oakely vs 129, 215 Morse and Brooke et al , 291 Morson vs. David 412 Moses vs. Henderson IGO Moss and Douglass 153 Moss et al. vs. Brown 28Y Moss vs. Carmichael and the Railroad Car Company, opposant 158 Motz vs. Houston 238 Motz, Moreau and 27, 217 Moufle vs. Delorme 453 Mount and Dunn 45 Mountain vs. Dumas 297 Mountain vs. Leonard et al 239 Moy^an vs. Gauvin , 260 Muir vs. Perry 280 Muir and Decelles Sous voyer 99 Muir, Berthelet vs 230 Mulcahey, Hassett vs 52 Mullen vs. Jeffrey 392 Mullins vs. Millar et al., and McDonald et al., opposants 277 Municipal Council of the Township of Ches- ter, west, Lemesurier and 98 Municipality of the County of Two Moun- tains Regina vs 101 Mutiicipality of Shefford Regina vs 101 Munn vs. Halferty 94 Munn, B^langer vs *. . . . 353 Munn, the John — Richardson 370, 375 Munro, Cuvillier et al. vs 272 Mure and Jolieff, inc. plf., against Wileys and Hungetford, inc. dcfts 281 Murphy and O'Donovan 232, 264 Murphy vs. Knapp et al 121 Murphy, O'SuUivan vs 345 Murphy vs. Moffiitt 2C6 Murphy et al., Clarke vs 227 Murphy vs. Watt 265 PAGB Murphy vs. Page et al 278 Murphy, bankrupt. Murphy, claimant, Mat- hewson, assignee 158 Murphy vs. McGill 234 Murray vs. Gorman 324 Murray, Hogue and 74 Murray and McPherson 358 Murray vs. McCready 39 Nadeau vs. Dumont 333 Nand dit Labrie vs. Clement dit Labont^. 13 Xeilson, Ex parte 245 Neilson vs. Munroe 99 Neilson vs. Union Co 323 Nelson, Baile vs 251 Nelson Village — Power 366 Nelson, Price vs 16, 295 Nesbitt et al. vs. Turgeon et al 314 Nesbitt and Bank of Montreal 342 Neveu et ux. vs. De Bleury 91, 103 New City Gas Company of Montreal vs. McDonnell 283 Newham — Robson 385 Newton vs. Allan 42 Newton et Roi 416 Newton, Blbck vs 358 Newton, Rowell and 161 New York Packet — Marshead 372, 377 Niagara— Taylor 372 Niagara, (The) 366 Nianentsiasa and Akwirente 130, 401 Nichols, Evans vs 139 Nimmo, Chapman vs 293 Ninteau and Tremain 257 Noad et al. and Lampson 315 Noad et al., Tremblay and 170 Noad et al. vs. Bouchard et al 90 Noad, Warren vs 127 Noad vs. Chateauvert et al 43 Noad et al. vs. Von Exter 295 Noel vs. Chabot 134 Noel dit Tilly et al. vs. O'Farrell 273 Nordheiraer et al. V3 Hogan et al 10 Normand vs. Besan<;on 455 Normand vs. Huot dit St. Laurent 110 Normand vs. Clesse et al. and T. S 465 Normand and Crevier et al 326 Normand and Lajou 463 Normand vs. Marcou 450 Normandeau vs. Amblement 8, 408 Norris, Wilson vs 363 Nouchel vs. Greysac 454 Nutt, Ex parte 188 502 INDEX. ,,MI ! I » I- if 11 t 1 |#f::ir 1,: 1 !| Mi lll# PAGE Nyc, Golvilleet al. and 160, 223 Nye, Soi> vor vs 280 Nyo and Malo 412, 413 Nyc, Wliytc and.. . 135 Nye vs. Isaacson 116 Nyo vs. McDonald 102 Nye vs. Potter and Brown, adjiidicataire, and Anderson, opposant 140 Nye vs. McAlis'-ir 05 Oakley vs. Morrogli et al 129 215 O'Callaplian, Metliot vs 232 O'Connell, in Sjiiers and Regina 210 O'Connoll vs. Mayor, Aldermen, &c., of .Montreal 153 O'Connell, Adams vs 148 O'Connor vs. Couture 288 O'Donovan, Murphy vs 232, 264 O'Farrell et al., Smith vs 152, 180 Officers of Ordinance, The Respective, for liatification 140 O'llara, Barber vs 189 Oldlield vs. Tuttle 377 Oliva, Boissonnault vs 418 Oliva and Fournier 418 Oliver, Valleau and 121 Olson vs. Forstersen 257 O'Meara, E.x parte 407 O'Xeil, Cannon vs 201 O'Neil and Alwater 300 Organ vs. Bentley 265 Orkney, Ensor vs 100 Orkney, Ritchie vs 366 Orr and Fisher et al 397 Orr vs. IK'bert 78 Orvis vs. Yoligny 70 Osgood and Kellam 5, 289 Osgood and Cullcn 30 Osgood vs. Lelievre 296 Osttll, Bridgmau and 91 Ostoll and Joseph 32 Ostcll vs. O'Brien 297 O'Sullivan vs. Murphy 345 Oueletvs. Fournier dit Pr^fontaine 416 Ouimet and Papin 115 Ouimet vs. McCallum, and Clark, mis en cause 94 Ouimet et al. vs. Sdnecal et al 158, 180 Oviatt vs. McNab 307 Owens vs. Dubuc, and Campbell, oppo- sant 153 Facaud vs. Begin 8, 186 PAGE Pacand vs. Bourdagea 79 Pacaud et al. vs. Guignicroa dit 454 Pacaud vs. Hooker 290 Pacaud et al , Sunecal vs 293 Pacaud vs. The Monarch Insurance Com- pany 20C Pacquet vs. Gaspard 21, 301 Page, Iluot vs 220 Pag(S vs. Carpentier 299 Paigd vs. Savard 268 Pain, Patterson et al. and 43 Palin and Guillemin , 464 Palliser and Roy dit Lapensde 167 Palmer, in Anderson vs. Lapens^e 260 Palmyra, The — Levitt. . 387 Palsgrave vs. Ross, and Ross, opposant and plaintiff en faux, et Palsgrave, defendant en faux 218 Palsgrave vs. S6n6cal et al., and Prieur Gardien, petitioner 185 Panuelo, Prowse vs 280 Panet vs. Larue 332 Panet et al., Blake et al. vs 107, 257 Panet et al. vs. Laurin et al 15 Pangman vs. Bricault dit Lamarche 350 Papin, Lynch vs. 104, 109, 246 Papin, Ouimet and 115 Papincau, Belanger and 134 Papineau — Maxwell 381 Paquet vs. Demers , 201 Paquet et ux. vs. Micbette 347 Paquet, Jackson et al., and 318 Paquet and Globensky 129 Paquet et al. and Robitaille et al 105 Paradis vs. Alain 205 Paradis, Ex parte 281 Paradis vs. Lamere t 307 Parant, 'Welling vs 201, 254 Parant, Douglass vs 12, 340 Parent, Demers and 401 Parent vs. Lcduc 334 Parent vs. Grenier 364 Par6 and Deroussel . . 78 Pariseau, Wilson vs 94, 195, 2C2 Pariseau vs. Brodeur 145 Pariseau vs. Ouellet 44 Park, Anderson vs 43 Park, Grainger and 424 Parker, Russell vs 384 Parker vs. Cochrane 1 59 Parsons et al, vs. Kelly 253 Paton vs. Buchanan 325 Patris V3. B^guin 91 INDEX. 503 PAGE Patris vs. Bcllangt 23 Patteimudo, Thobtige and 291 Pattenaudo and Lerig6 dit Laplante et al. 327 Patterson vs. Uerune 22 Patterson vs. Hoiirne 152 Patterson et al. vs. liowcn 59 Patterson vs. Coment 282 Patterson vs. Davidson 71, 243 Patterson vs. Farran 59, 282 Patterson et al. and Pain 43 Patterson et al., Emerick vs 122 Patterson vs. Hart 290 Patterson, Tlie Seminary of Quebec 311 Patterson et al. vs. Percival 123 Patterson et al. and JlcCallum et al 198 Patterson vs. Star 42 Patterson vs. Walsh 49 Paton vs. Cussack 388 Patton vs. Fournier 353 Patton, McFarlane vs 2, 90 Patton, Ferguson vs 22G Pearce, McGillis and 29 Pearce vs. The Mayor, Aldermen, &c., of City of Montreal i 11 Peck and Harris 235 Peck et al. vs. Murphy et al., and The Mayor, Aldermen, and Citizens of Montreal 283 Peck, Lyman and 253 Perras vs. Beaudin 304 Peddie vs. Tlie Quebec Fire Assurance Company 209 Peel, Adams vs 280 Pelletier vs. Micliaud 329 Pelletier vs. School Commissioners of Ste. Fhilomene 349 Pelletier vs. Lajoie 187 Pelletier vs. Miville 130,133,298, 300 Pelletier, Tessier vs 61 Pelletier vs. Freer 218 Pelletier vs. Peltier and Magn6 449 Peltier vs. Blagdon 387 Peltier vs. Puizie 184 Peltier, Regina rs 124 Peltier vs. Laricheliere 199 Peltier, T6tu et al. vs 32 Peloquin et al., Cr^bassa vs 82 Pemberton et al. vj. Demers, I L. 0. Rep. 308 Pemberton et al., City Bank vs 144 Pentland et al. vs. Drolet 29 Pepin vs. Christin dit St. Amour 275 Percival — The Harrower 381 Percival, Patterson et al. vs 123, 259 PAGB Percival, Price vs 259 Percival, Gillespie vs 123 Perkins, Synies vs 27G Perkins, Lyman vs 302 Perras vs. ileaudin 304 Pcrrault vs. Dcseve 04 Perraull vs. Bacquct 312 Perrault vs. Arcand 303 Perrault vs. Bin 308 Perrault vs. Borgia 23, 109 Perrault, Glackmeycr and 51 Ferrault and Siniard et al 203, 305 Perrault vs. Brocliu 103 Pcrrault vs. Miilo, 11 L. C. Rep 81 Perrault et al.. Borne vs 68, 69 Perrault vs. Baillargd 258 Pcrrault vs. Charests 456 Pornuilt vs. Cuvillier 191 Perrault vs. Hausscman 8 Perrault vs. Leblond 1G9 Perrault vs. Levesque 18, 310 Perrault vs. McCartliy 361 Perrault vs. Plamondon 256 Perrault vs. Ruette 456 Perrault vs. Tolfry 226 Perrault vs. Vallieres 256, 288 Perrigo and Ilibbard 34, 157 Perrin, Marion and 179 Perry, Muir vs 280 Perry, Ursulines de Quebec vs 302 Perry and Gugy 360 Perry vs. Jlilne 54 Perry vs. The St. Lawrence Grain Eleva- ting and Floating Storage Co 112 Perry vs. Milne and Tlio Ontario Bank, T.S., and Milne, contesting 172, 203 Petitbois and Cartier 409 Petit vs. Becliette 408 Petitclerc, Regina vs 324 Peuvret vs. Rousscl 451 Philipps, Hart et al. and 203, 241 Philips and Sanl)orn 141 Philipps vs. Anderson 422 Pliilipps vs. B. A. Friendly Society 45 Phlem and Turgeon. . , 464 Phoebe— Rattray 363, 377, 382 Phoenix Assurance Company, in Chapman vs. Nimmo 293 Phoenix Assurance Company, Scott vs. .S3, 207 Picault vs. Demers 18 1 Pigeon and The .Mayor, Aldermen, and Citizens of the City of Montreal 100 Pilot, Boisseau vs 360 / 504 INDEX. PAGE Pilot (The)— Collins 300 Pinct, Cadicux and 170 Pinsonnault vs. Ramsay 100, 230 Pinsonnault and Dub6 345 Pinsonnault vs. Henderson 230 Pirrie vs. McFIugh 234, 304 Plamondon vs. Farquhar 234 Plamondon vs. Sauvageau 257 Plamondon, Greenshiclds and 55 Plamondon vs. Shepherd 298 Plante Lavoie vs., and Blo'iin 140 Plante, Ex parte 187 Plante, Grant vs 425 Piatt and Charpentier 426 Piatt et al. vs. Piatt et al., 1 Jur 183 Plenderleath vs. McGillivray 222 Poirier vs. Lacroix 329 Plamondon et al. vs. Alleyn et al 274 Poirier, in Robertson, Ex parte 332 Poisson, Rivet vs 29G Poliquin vs. Belleau 327 Pollico, in Doutre vs. Green 192 Pollock, Gordon et al. vs 8, 376 Pollock et al. and Bradbury 412 Pollock, in Robertson, Ex parte' 283 Portes v.-i. Deviennes 470 Poston et al. vs. Thompson 12 Pot-de-vin vs. Mcville 294 Pothier and Viger 425 Poulin vs. Falardeau 7 Poulin, Eraser vs 329 Poulin vs. Langlois 10, 242 Poulin vs. Plante 133, 30V Pouliot vs. Levergue 326 Pouliot vs. Scott 8, 290 Pouliot vs. Stanley 130 Pouliot vs. Vocel 459 Poutr6, Boudreau vs 268 Poutr6 and Chapdelaine 29 Poutr6 vs. Poutr6, and Laviolette, T.S. ... 11 Poutre vs. Laviolette 185 Power vs. Bezeau 272 Powers vs. Whitney IIS Poysset vs. Larchesvesque 455 Pozer vs. L'Esp^rance.-. 166 Pozer et al., McCallura vs 300 Pozer vs. Meiklejohn 156, 395 Pozer et al. vs. Chapman 300 Pozer vs. Green 193, 300 Pozer vs. Meikle 216 Prat and Petrimoulx 468 Pr^fontaine and Pr<5vost et al 168 Premier (The) Heard 384 PAGI Preston vs. Johnston 340 Prevost et al. and Allaire 278 Prevost vs. Delesderniers, and Frothing- ham, opposant 222 Prevost vs. D^rousseau 256 Prevost vs. Faribault 286 Prevost vs. Leroux 287 Prevost et ux. vs. Breux 409 Prevost et al. vs. S6dillot 454, 455 Prico vs. Nelson 16, 295 Price, Wurtele vs 250 Price, Regina vs 122 Price vs. Wilkinson et al 361 Price vs. Percival 259 Prince, Scott vs 96 Prince Edward (Tlie) — Diaper 389 Prieur Gardien, petitioner, and Palsgrave vs. S^n^cal et al 185 Principal Officers of Ordinance, Grant and . 352 Principal Officers of Ordinance and Tay- lor 281, 308 Principal Officers of Her Majesty's Ordi- nance, Laporte and 311 Prior vs. Dolamar 169 Procureur du Roi vs. Bellevue 458 Procureur du Roi vs. Perche et ux 458 Proulx, Dubd vs 291 Proulx, Beaudry vs 412 Proux vs. Proux 201 Prowso vs. Panuelo 280 Pudor vs. Boston and Maine Railroad Company 68, 256 Pufi'er and Gauvreau 3 Puiz6 vs. Fay 282 Puiz^ vs. Miviile 298 Purington vs. Higgins 162 Pyko et al., McTavish and 7, 216, 409 Quatre-Pattes, Regina ts 119 Quebec Bank vs. Molsun 49, 286 Quebec Fire Assurance Company and Mol- son 206 Quebec and Richmond Railroad Company vs. Dawson 320 Quebec Music Hall, Lee vs 132 Quebec Fire Assurance Company, Four- nier vs 284 Quebec and Richmond Railroad Company and Quinn 317 Quebec Building Society, Atkins and. . . . 269 Quebec Bank vs. Baby 215 Quebec Bank vs. Maxham et al 230 f[