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Les diagrammes suivants illustrent la rn6thode. rrata to peiure. D 32X 1 2 3 1 2 3 4 5 e THE JURISPRUDENCE OF THE PKIYY COUNCIL THK .miUSIMllIDKNCK PmVY COUNCIL (■(INTMMNIi A UKJESTOF ALL THE DKCIBIONS OK TIIK PKIVY (OrNCML; A SKRTCir OP ITS HIHTOUY ; NOTK8 ON THE CONSTITUTION OK THE Of DICIAL COMMITTEE ; A SUMMARY OK ITS PROCBDUKE Om^EE .A-I^FEHSriDICES BY J. J. BEAUCHAMP. B. C, L.. Q. C. HifiniHii Unrristrr. MONTREAL WIIITKFOKI) ik TIIEUKET, LAW PUBLISHERS, BUeCUSSOKH TO A. I'KKIAKII. 18»1 y^nj Entkred acookdino to act or parliamknt ok Canada, in thk ykar 1801. by A. PKRIAKU^ thk OFMCB OK THE MINI8TKB OK AOBICl, XTUBE. AT OTTAWA. A i«<^5 MEMBERS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. VISCOUNT CILVNHJIOOK, Lord Presiuent. LORD HALSHIIUY, * Lord llioii Chancellor LORD WATSON, * LORD MACNAU(aiTI<:N, * LORD MORJIIS, * LORD IIANNKN, * ' Lords of appeal in ordinary. SIR N. LINDLKY, SIR C. II. BOWEN, SIR EDWARD FRY, SIR H. LOPKS. SIR E. EBENNEZER KAY. . Lords Justices op appeal. THE EARL OF SELBORNE. * LORD ESIIFR, Master ok the Rolls. LORD COLERIDGE, Lord Chief Justice ok England. SIR CIIS. PARKER BUTT. * President ok the Probate, Divorce AND Admiralty. LORD HERSCIIELL. * LORD ASBOURNE, Lord Chancellor. Ireland. LORD PENZANCE. * LORD BRAMWELL. * LORD FIELD. * LORD SHAND. * LORD IIOBIIOUSE. * SIR RICHARD COUOII. * SIR MONTAGUE E. SMITH. * SIR JAMES BACON. George Denison Faber, Esq., Registrar. George P. Wheeler, Esq., Chiek Clerk. Thomas Preston, Fsq., Clerk op Records. H. A. Bathuhst, Esq., Registrar of Ecclesiastical and Admi- ralty Appeals. • The »tars indieale the members uttutUu attending the sittingt of the Judicial Commillee. 1 PREFACE The highest court of appeal for the British colonies is the •' Judicial Committee of Her Majesty's Privy Council, " commonly called the " Privy Council ". This supreme tri- bunal is composed of the Queen and of a certain number of judges, whose duty is to hear cases submittud to them, and to advise Her Majesty as to the decision which she should give according to law and equity. Although the Queen is never present at the hearing, or at the rendering of judg- ments, she is considered, by a fiction of the law, as present and presiding over the court, and the Lords, sitting as judges, are only Her advisers. Therefore, when their Lordships deliver judgments, they merely state their reasons, conclud- ing that the Queen should allow or refuse the appeal. The text of the judgment is published afterwards by a srtecial ordinance of Her Majesty. The appeal to the Privy Council is either de piano or by special leave. The first is regulated by colonial statutes or by special charters to courts of Justice. The application is made to the court appealed from, which is called upon to decide whether the cause is within the appealable value or is an appealable grievance. In such case, the application is granted as a matter of course. Special leave to appeal is entirely in the discretion of the Judicial Committee. The Queen as endices. The first contains the names of all the British colonies with the in- dication of the nature and origin of their civil laws. This table is useful as showing the value to be attached to a decision in any particular case ; as the principles laid down in an appeal from oue colony may be applicable in another appeal from another colony according to the parity of their laws. The second contains notes of all the decisions of the court of Queen's Bench (appeal side), for the Province of Quebec, rendered under the articles of the Code of Civil Procedure on appeals to the Privy Council. They are of great importance, and we may add final, as the Judicial Com- mittee has declared the court appealed from to be the sole authority to decide questions of procedure, such as the giving of security in appeal, preliminary to the introduction of the appeal into the Registrar's office, in England. The I'UKKACK IX third is a double alphaboti«al tabl»^ of the cases reported in this volume. This work, therefore, is submitted in the hope that it will prove iiseful ^o the legal profession, in the arduous task of searching for precedents and authorities. If it serves this purpose, it will have attained the desired end, and the author will have accomplished hio object. Montreal, 1st May, 1H!»1. J. J. Beauchamp. TABLE OF CONTENTS Explanation of the abbreviations xir Introduction : Sketch of the history of the Privy Council 1 Notes on the constitution of the Judicial Committee H Summary of the procedure before the Judicial Committee 31 Digest of all the decisions of the Privy Council 41 Appendix A : British colonies and nature of their civil law 883 Appendix B : Decisions of the court of Queen's Bench (appeal side) rendered under the Code of Civil Procedure, on appeals to Her Majesty ^^^ Api>endix C : Double alphabetical table of cases 899 HXPLANATION OF THH ABBRKVIATIONS Ahiiheviations. llKi'uiiri:iis AM) ItKfoins. (Joi ins. A. & K Adulohiis & Ellis Queen's Bench, App. Cas Appeal Cnses Atk Atkyn's Reports Chancery. B. orHar. k Aid. or A...Barnewall A Alderson King's Bench. Bur. & Ad Kariiewall & Adolphus " " B. & Bum. & Cor Cr...Barniwall & Cresswell " '' Ben. or Ueiiv Beaven, Rolls. Bell's Cr Bell's Criminal Cases Criminal Appeals. Bing Bingham Common Pleas. Bing. N. C Bingham, new cases " " B. orBos. & PmI. or l'...Bosan(jmt & Puller " " B. or Br. & L Browning A Liishington Admirulty. Bro. P. C Brown's Parliament Cases House of "Lords. Brod. )c Bing Itroderip Sc Bingham Common Pleas. B. AS Best* Smith Queen's Bench. Camp Campbell C. B Common Bench Reports, old scries.... C B. N. S " " •' new" C. C Consular Court C.C. P. Q Code Civil C. C P. P. Q Code of Civil Procedure Ch. App Chancery Appeals Ch. D Chancery Division C. or Car. & K Carrington & Kirmen C. or CI. & F. or Fin. ..Clark & Finnelly C. A P. Carrington A Payne C. S. U. C Consolidated Statutes, Upper Canada Cox C. C Cox's Criminal Cases Cr. A P. or Ph Craig A Philip Curt. Rcc. Rep Curtis Ecclesiastical Reports A'isi /iriuf. Common Pli-f Province of Quebec, it ii Chancery. A'Ui priui. House of Lords. Nisi print. Criminal Appeals. Chancery. Ecclesiastical. D.orDears. AB.C.C.Dearsley A Bell's Crown Cases Criminal Appeals. Deac Deacon Bankruptcy. Dears, or Dearsl. C.C. ..Dearsley's Crown Cases Criminal Appeals. De Q. J. A S De Cex, Jones A Smith " '' Den. C. C Dcnison Exchequer A Criminal. D. A M Davison A Merivnie Queen's Bench. D.or De G. F. A J De Gex, Fisher A Jones Lord Clinnc. A Appeal. Dod Dodson, Admiralty Cases Adniirnlty. Drew Drewry Kindersley V. C. D. or Dr. A War Drury A Warren Chancery, Ireland. East East King's Bench. E. or El. B.or Bl Kills A Blackburn Queen's Bench. Edw. A. R Edward's Admiralty Reports Admiralty. E. or El. A E.or El Ellis A Ellis Queen's Bench. E. or Eng. A Ir. App... English and Irish Appeals Flouse of Lords. Kx. Rep Excluquer Reports Exchequer. Exch. (W., H. A ( Exchequer Reports by Welsley, 1 ,. Gurd.) t llurlstone A Gordon I EXPLANATION OK THE ABBKEVIATIONS. XIII Hsgg. Adm Huggard's Admiralty KepoiU Admiralty. Hagg. Kcc. Kcp Haggard'a Ecclesiasticnl Reports Kcclediaaticnl. Hare... Hare Vice-Cliancellor. il. k Hiirlatoue k Coltman Exchequer. H. L House of Lordd H. L. C House of Lords Coses (Clark) House of Lords. H. or Hem. & M.orMil... Hemming & Miller Cliancery. H. k N Hurlstonu k \urman Exrhequer. How. R. U. S Howard's Reports, United States Supreme Court. (ns Institutes Ir L. Rep. (Eq.) Ireland Law k Equity Reports Common Picas. J. orJac.4 W. or Wal... Jacob k Walker Chancery. Jurist Jurist General. J. or Jcbb k S Jebb k Syme's Reports King's Uencli, Ireland, K. or Kay k J Kay k Johnson's I'eports Chancery. Knapp Knapp's Privy Council Reports Privy Council, L. C. J Lower Canada Jurist General. L. C. L. J Lower Canada Law Journal " L C. R Lower Canada Reports " Leon Leonard's Reports King's Hench. L. J. Ex Law Journal Exchenuer. L. J. P. C Law Journal Privy Council Judicial Committee. L. N Legal News (Canada) General. L. R. App. Cas Law Reports, Appeal Cages Hou.se of Lords Privy Council. " House of Lords. " Privy Council. Superior Court. Queen's Bench. L. R. ILL ' L. R. P. C ' '.. R. S. C ' L. R.Q. H L. T. N. S Law Times, now series General. M. or Man. k S. orSeI...Maule & Selwyn King's Bench. ^'orni^G^' ''^ * ^' 1 Montague, Deacon k De Gcx's Rep....Bankruptcy. Macq. Sc. Ap. Cas Macqueen's Scotch Appeal.* Cases House of Lords. Mer. or Meriv iMerivale's Reports Chancery. M. L. R Montreal Law Report General. Moore Moore's Privy Council Repotts Judicial Committee. Moore Ind. App Moore's Indian Appeal Cases " " M.orMee.& W.orWels..Meeson k Welaley Exchequer. Myl. k C Mylne k Craig Chancery. My, k K Mylne & Keen " Noy Noy's Reports King's Bench. N. S New Series 0. C Order in Council , ninal. [ipeal. d. ■ P. D Perry & Davison. Ph. or Phil Philip P. Wm Peere Williams ... .Queen's Bench. ,. Chancery. Q. B AdoIphus& Ellis Reports, new series. ..Queen's Bench. Q. L. R Quebec Law Reports .General. Ri'g Regina II. L Revue Legale (Quebec) " Rob Robinson House of Lords. Robert. App Robertson's Appeals " Russ RuBiell Chancery. Rusa. k M. or Mvl Russell k Mylne's Reports " RorRy, &M.orMood..Ryan ft Hoody A'iiipriui. Salk. .Salkeld's Reports „ King's Bench. XIV EXPLANATION OP THE ABBREVIATIONS (j. c. R Supreme Court Report (Canada) Supreme Court. S". C Supreme Court Sim Simon Vice-Cbancellor. Sup. C Superior Court Sw k Tr Swabey & Tristram's Reports Probate k Divorce. Swa Swanston Chancery. Swab Swabey ReporU Admiralty. Taunt Taunton Common Pleas. T. or Term. R. or Rep...Term8 Reports (Durnsford k East). ...King s Bench, (]. c. R Upper Canada Reports General. V Versus V A Vice- Admiralty Ves Vesey Chancery. Ves! jr Vesey, junior ... " W. B. L. or W. Bl Sir William Blackstone Common Pleas & Q.B. Wheaton Wheaton's American Reports Wm. Rob William Robinson's New Admiralty Reports. INTRODUCTION SKIBTOH OF THE HISTORY OF THE PRIVY COUNCIL ORIGIN OF THE PRIVY COUNCIL The Privy Council, like all institutions which have a political origin, has a history full of troubles and conflicts. A few of its pages are stained with deeds of injustice and violence, but these belong to a time when England, demor- alized and weakened by party struggles, had to submit to the despotism of men who could not curb their passions. But it has generally been composed of the most noble and distinguished lords of the realm. A great number of them have acquired celebrity by their virtues and have been renowned as much for their science and their love of justice, as for their descent and wealth. From its origin, the Privy Council has been so bound up with the constitutional laws of Great Britain, that it is impossible to relate the history of the one, without narrating that of the other. England has always retained the same form of govern- ment. She has been ruled with more or less despotism, with more or less liberty, according to time and sovereign, but there have always been the king and the upper and lower houses forming a Parliament. During the later centuries, as far back as the revolution of 1688, great changes have ^ 2 INTRODUCTION beeu introduced by the coustitutioual doiitriue. Neverthe- less tht' bases of authority aud sovereignty have remained the samt'. Those modifications, however important they may be, were not radical ; on the contrary, they were only the logical developments of the political institutions intro- duced by the old laws of Great Britain. The abuses of the monarchs, the intellectual emancipation of the people, the modifications in manners and customs, the new aspirations of the day, have all necessarily brought about a division of the legislative, administrative and judiciary powers, which had for a long time been entirely vested in the sovereign. The constitutional doctrine has been in the political genius of the English nation since the time of their earliest ances- tors ; the revolution of 1688 having been the last blow to the hydra of English despotism aud arbitrary government, just as that of 1215, with its Magmi Charla, was the first. Before the conquest, the Anglo-Saxons were governed by the king with the assistance of a great national Assembly called " Wittena Gemote ". ' That assembly had greater powers than parliament at present possesses, for it had the right to dethrone the king and appoint a substitute in exceptional circumstances. It also had the right to decide on peace and war, which now belongs exclusively to the king or queen in council. On the other hand, it appears to have beeu less blustering and more submissive, because the king might, and often did iguore its advice, set aside its vote, and proceed according to his own will, without fear of a revolution. After the conquest, the Normans introduced into Great Britain the principles of their government with all its pre- rogacives and despotism. The history of England shows that they laid upon the people a yoke of iron. The Anglo-Saxons, on their side, fought with great energy to preserve their de- mocratic principles and their spirit of liberty. The history 1 Anglo-Saxon word which mean " Aasembly of wise men " ; it was also called " Michel Sjrmoth " or " Great Oouncil "; or " Michel Qemote " or " Great Meeting ' ' . Ulackstone * 47. INTRODUCTIOX of their parliaments is, in consequence, a continual alterna- tion of weak and vigorous actions which appear all the stranger to us, as in our own times the rights and obliga- tions of each element of power are well and simply defined. The government, under the Normans, was composed of the king and two great councils : the Magnum Concilium, to- day the House of Lords, and the Commune Concilium, now the House of Commons. This last council was very si'ldom consulted, except in the beginning, in matters of finance, and later on, in matters of commerce, industry and agricul- ture. Its foundation was due to the continuous conflicts between Henry III and the aristocracy. The ma,jority of the noblemen, who formed part of the Magnum Concilium, in 1258, called upon all the commons and towns of the realm, to send representatives to parliament, to support them in ex- tending and confirming the Provisions of Oxford. The sta- tute was obtained, and, when once peace had been restored, the Grreat Council ordered the dismissal of the people's re- presentatives. The Litter resisted, and after numerous etForts, difiicnlti;^s aad conferences they were allowed to form the Conii.' iif Concilium to serve as an intermediary between the Mi- C'ow/jVtMm and the people, just as this last council wt .: Ct ii'k between the king and the people. The iuUuence ol:' lb jouucil, however, was at that time nearly null ; it had only the right to submit its views, and was a consulting body only. The most important of these councils, the only one which had any authority, was the G-reat Council. This was com- posed of the members of the nobility who were summon- ed by the king at irregular and undetermined intervals ac- cording to necessity. The number was also undetermined, and there was no official nomination. The king called in. for each meeting, whomsoever he pleased ; generally the more wealthy and powerful among the nobles. And when a lord had once been summoned to the G-reat Council, it was understood that he should be summoned again during life. This Assembly was entrusted with the administration of the kingdom, and decided upon war, peace and treaties INTRODUCTION with other nations ; but its character was not absolutely legislative, because the king could reject its laws, and even substitute therefor his own ordinances. It is true that the exercise of such a power was surrounded with dangers which varied in degree according to time, to the mind of the people and to the popularity of the king, but the deli- mitation of powers was so little understood, that there was practically no limit to that of the king. The characteristic element of the Magnum Concilium was its judiciary functions. It was its principal attribution, and what gave it an independent existence. Its jurisdiction covered civil and criminal matters, and extended over all inferior tribunals, over the people, the nobility, and over the king himself. It was a sovereign court to which the subjects could bring their complaints, even in first instance, to be finally adjudged. It is true that in judiciary matters, as in political, the will of the king was generally law, but there were great examples of independence, honour and dignity. Thus, Macqueen speaks of king Edward I who appeared before the G-reat Council in a civil suit, lost his case and was condemned. Among the members of this House were the great officers of the king, the general officers of the army, the first judges of the court, and certain ecclesiastical dignitaries, pr>ideces- fiors of the spiritual Lords of our days. It naturally hap- pened that the king did not call them together each time he wanted advice. Thesoveroiga then would in an informal manner consult some of them according to their special learning. If he desired advice on matters regarding the army, he would call those who had experience in war ; if it was with regard to a lawsuit, he would consult the judges. This became more and more necessary as the num- ber of the G-reat Council was all along increasing in order to keep pace with the extension of the realm, both in England and in the colonies. From this custom sprang the right of the crown to consult privately certain members of the G-reat Council, who, in consequence, took a larger part in the administration of the realm. They came to form [NTRODUCTION 5 what was called the Curin Regis, ' and became the frreat officers of the crown, the special advisers of the king. They have grc^My contributed to enlarge his influence, to increase his revenues and to guard his prerogatives. This was the origin of the Privy Council. THE PRIVY COUNCIL UP TO THE CO.NSTITUTION OF THE " JUDICIAL COMMITTEE." It is impossible to give the exact date of the formation of this council. As we have seen above, it arose from political circumstances, and was in existence de facto, long before it was recognized as an English institution. The executive power being concentrated in the hands of the king, it was necessary that officers should be appointed to relieve the king from his numerous duties. Even before the existence of the Curia Regis the king had his great officers, but they then acted individually without any deliberation among themselves. This state of things, the irresponsibility of these officers, and moreover, the independence of the king towards parliament, rendered more necessary the existence of a Privy Council. In the history of nations, there never existed a sovereign who could govern entirely alone. Even the great tyrants, the most absolute despots, have been forced to abandon part of their authority to favorites. In England, the sovereign has never been entirely absolute. Under the Tudors, the most autocratic of its princes, the independence of the people, the love of liberty were so strong, that the king was always forced to take the advice of his ministers for each important decision. And as a logical consequence of this principle, every arbitrary or unjust act of the king was thrown on the responsibility of his ministers. The sovereign being in- violable, another person had to put himself in his stead so as to be within the reach of the people. This responsibility 1 These words have beea retained in our legal practice. When cases are taken under advisement by our courts, the letters C. A. V., that is : Curia advisere vult, are written on the record; and the judgments are generally rendered: Per curiam. 6 int:{ODUc;tiox fi has oil cu been a nullity; but sometimes it has asserted itseir strongly enough to force the king to disgrace his liivoritcs, to banish them, and even to condemn them to death. "We find such examples in the history of Kngland. Under Edward I, the law suits or judicial work brought bi'l'ore the Great Council became so numerous.and at the same time, the number of the lords was so great, that it became necessary to provide for a bet ter mode of administering j ustice. To reach that eiia, the House of Lords (this name was given to the (jrreat Council) named some Receveurs and some Trieurs des Pelicions. These high functionaries were specially chosen to receive and decide all petitions of a judiciary character ih?.t might be presented to the House, de maimre que le roi et les loTils puissent avoir des loisirs pour s'occuper des affaires p/us importuntes de VEtut. ' Thore was an appeal from the judgments of the court of lieceveiirs and Trieurs, but this appeal was very seldom resorted to ; because when the case was of great importance, it was referred to the House of Lords ; or if the case belonged to another tribunal, it was sent to its proper court. These judges were commissioned by Parliament, but were named by the crown. They were always members of the Privy Council. Thus, by naming, as a rule, members of his council, the king concentrated nearly all the legal jurisdic- tion of the parliament in the hands of his private council- lors, thereby greatly increasing their influence. There were Receveurs and Trieurs des Peticiuns d'Engleterre Gales et Escoce ; there were others for Gascoigne, Aquitaiue Guernsei/ et des autr(}s Terres et Pays de par deld la Mer et les Isles. It was the first time that a distinct jurisdiction was made for the kingdom and the colonies or plantations. This institution was named the " High Court of Parliament, " and was long in existence. On the 20th of November 1837, Queen Victoria, according to this custom named twenty-six Trieurs for Great Britain and Ireland, and twenty-four for the colonies, besides three Receveuis for each court, with the 1 33 Edward I. INTI{()I)lT(TIOX t Ibllowiuj? order in council : Et ceux qui veulent delivre leur jietilioiis les baUlent. dedans six Jours prorlteinemenl ensuivanl. Touts eux ensemble ou quatredes Seigneurs avatit ditz appelant aux eux les Sergeants de la Reine quant sera besoigne tiendront leur Place en la Cliambre de Tresofier. ' Till' i'rivy Ccuncil thus appears to have acquired a wide jurisdiction, but its powers were only delegated, the autho- rity remaining dejure in the House of Lords. Aud the Rece- veurs aud Trieurs, although private councillors, not only were, as a court ofjustice, distinct from the Privy Council, but the latter body itself was, with the king, part of the Parliament. How did the Privy Council acquire a separate existence, and how did it obtain a distinct legal jurisdiction ? The principle which had first created the necessity for its formation, brought about its independence. This event is explained by the political circumstances of the time. It is well known that, under the Tudors, the kings at- tempted, as a general rule, to goven; the nation without the cooperation of Parliament. To that end, they increased as much as they could the powers of their Privy Council, vvhi(^h served them with submission and was the instru- ment of their will. English authors have defined the privy council as " the confidential servant of the crown. " If it has ever justified the literal sense of this definition, it is during that period of English history. It was under Henry VII that the " Star Chamber," which was only a committee of the Privy Council, was created. Its powers were unlimited, its procedure arbitrary, and its judg- ments coloured by the political passions which then divid- ed the country. The judges of the Star Chamber dealt with all civil and criminal cases submitted to them by the king, by parliainent or by private persons, but especially with po- litical offences. The accused party could not be defended, he could rarely call his own witnesses, and the judgment 1 Macquecn's House of Lords, p. 11. I\Ti{UJ)r(Tl()X II! was without appeal. This court was a terrible instiumeut in the hands of Henry VIII and Queen Elizabeth. During these two last mentioned reigns, Parliament sat ou very few occasions, and was finally banished, the sovereign then governing with his privy council. These circumstan- ces brought about a complete separation between Parlia- ment and the Privy Council. "What had previously been done by this body as auxiliary to Parliament, was then done by its own authority with the sanction of the Crown. This change took place without commotion, as the judges r<'mained the same, the Receveurs and Trieurs, as above stat- ed, having always been nominated from amongst the privy councillors. Moreover, the Privy Council, being intimately bound to the Crown in its struggles with Parliament, had become the enemy of this last body, and all endeavours Were directed towards its complete and absolute separation from Parliament. However, this court of justice, in consequence of its cons- tant connection with political quarrels and its subservien- cy to the wishes f^^ llic Crown, soon fell into disrepute among the People, who looked upon the '' Star Chamber " as one of their most formidable tyrants. Queen Elizabeth, pressed by the popular voice which had become threatening, frightened by the renewed agitation of Parliament, established, in Parliament, a Court of Exche- quer, to hear appeals from the law courts of "Westminster. ^ The preamble of this statute, to justify the creation of this new tribunal, declares that these appeals were within the ji^risdiction of the High Court of Parliament. Thus the House of Lords was vindicating its rights and privileges, with the consent of the Queen and Commons. But the appeals from the colonies were retained by the Privy Council, with other jurisdiction connected with the prero- gatives of the Crown. The division of jurisdiction between England and her colonies had first been introduced by the House of Lord^ by 1 27 Elizabeth, di. 8. INTUOIHTCTIOX !» the noiniimtioa of distinct lleceveur.t and Trieun, as \v»» hiivo seen above, and was thus Hnally settlod by the ostablish- ment of the (30urt of Exchequer which took all the appeals of Great Britain, leaving to the Privy Council those from the plantations. The inhabitants of the colonies, says Mac queen, having no representatives in Parliamcat, it was imma- terial to th'un whether their appeals should depend on the decision of one or the other of these tribunals. In 1640, under Charles II, to complete the people's victory against the royal prerogatives, the statute 16 Chs. I, ch. 10, which abolished the " Star Chamber," was passed. The same statute authorized the use of the Writ of Habena Cor- /lus to put an end to arbitrary imprisonment, and to give to those unjustly deprived of their liberty a means of recover- ing it summarily. At last ctime the revolution of 1688, and with the Prince of Orange commenced the real constitutional period. The delimitation of powers, the jurisdiction of each branch of Parliament, became more apparent and consolidated itself. Parliament, firmly reorganized, put into full operation the institution of trial by jury which had been obtained by the Magna Cliarta in 1215, but had been practically set aside by the high functionaries. Since that time, the Privy Council has had full executive powers. The administration of the United Kingdom has remained in the hands of the king acting through respon- sible ministers, members of the Privy Council, who are called the " Cabinet " or " Ministry. " A tolerably wide legal jurisdiction has also remained with the Privy Council, both original and appellate. This will be explained further on in our notes of its constitution. The Privy Council, according to Sir Edward Coke's description, has remained ever since " a noble, honourable and reverend assembly of " the king, and such as he wills to be of his privy council, " in the King's court or palace." The number of the private councillors was originally twelve, but being left to the pleasure of the king, it increased rapidly. Charles II, in 1619, limited the number to thirty ; 10 INTEOBUCTION half of whom were to be the fifteen principal officers of the kingdom, and were councillors ex virlute officii ; the remaining fifteen were chosen by the Crown, ten in the House of Lords, and five from the commoners. Since then, the number has been considerably increased, and is now undetermined. But this is no cause of inconvenience, because the Queen calls only upon certain of them to advise Her. that is her Cabinet ministers. The nomination belongs to the sovereign, and confers the title of "Right Honourable" during life. The duties of a private councillor are described as follows by Blackslone, and appear also from the oath of office : — " 1. To advise the king (or queen) according to the best of his cunning and discretion. 2. To advise for the king's (or queen's) honour and good of the public, without partiality through affection, love, meed, doubt or dread. 3. To keep the king's (or queen's) counsel secret. 4. To avoid corrup- tion. 5. To help and strengthen the execution of wh 16 CONSTITUTION Judges of the said Committee, all those Judges who are now holding or have held any of the offices which the Appellate Juridiclion Act of 1876 and this act describe as " high judicial offices." These high Judicial offices are, besides those herein- before named, the Judges of Superior Courts of G-reat Britain and Ireland which means the High Court of Justice, the Court of Appeal, the Superior Courts at Dublin, the Court of Session in Scotland. The Lords of Appeal in Ordinary and the paid members of the Judicial Committee are also " high judicial officers." Section II ; — Appeals from Admiralty Courts. This section gives jurisdiction to the Judicial Committee over all appeals from the Courts of Admiralty or Vice- Admiralty in the colonies. AVe have in the Province of Quebec a court of Vice- Admiralty, sitting at Quebec, with powers very nearly the same as those of the High Court of Admiralty of England. This Court was established in 1764, by a commission of Vice-Admiral given by G-eorge the Third, to G-overnor Murray. The appeals from this Court, as from all the courts in the colonies were formerly vested in the king in Council, but donbts having arisen that this jurisdiction belonged to the Hi'.^'' (^' ■ ■ r of Admiralty, the question was argued in the • ; .b.^ •; 't'i.-i Fabius", in 1813, * and was decided in fa\ nihis^.' ilhunal. After that judgment no appeal has beeii le. "i"^ ■: u '.3 Privy Council. But this section trans- fers this jurioaiciion to the Judicial Committee, and it was confirmed by the statute 26 Vict., ch. 24 (1863) whose 22nd section is as follows : " The appeal from a decree or order of a Vice-Admiralty Court lies to Her Majesty in Council." Another statute, the " Supreme Court of Judicature Act 1873"^ has given the hearing of appeals in admiralty cases to the new Court of Appeal created by this Act. The eighteenth section reads thus : I 1 2 Rob. 249. 2 36 and 37 Vict. ch. 66, sect. 18, (5). OP thp: judicial committef: 1.7 " The Court of Appeal established by this Act shall be a " Superior Court of Record, and there shall be transferred " to aud vested iu such Court all jurisdiction aud powers of " Court following : " (5) All jurisdictiou vested in or capable of being exer- " cisedby Her Majesty in Council, or the Judicial Committee " of Her Majesty's Privy Council, upon appeal from any " judgment or order of the High Court of Admiralty, or " from any order in lunacy made by the Lord Chancellor, or '■ any other person having jurisdiction iu lunacy." But this legislation affected only the Court of Admiralty in England, and not the Vice-Admiralty Courts in the colonies. A more recent statute passed iu 1890, (53 and 54 Vict.) has substituted another organization for the disposal of admiralty cases. The 17th section of this Act enacts that : " On the commencement of this Act in any British possession, " but subject to the provisions of this Act, every Vice-Ad- " miralty Court in that possession shall be abolished." The second section of the same act says that : " Every Court of " law iu a British possession, which is for the time being " declared in pursuance to this Act to be a Court of Ad- " miralty, or which, if no such declaration is in force in the " possession, has therein original unlimited civil jurisdic- " tion, shall be a Court of Admiralty, with the jurisdiction ■' in this Act mentioned, and may for the purpose of that " jurisdiction exercise all the powers which it possesses for " the purpose of its other civil jurisdiction, and such Court '• in reference to the jurisdiction conferred by this Act is in " this Act referred to as a Colonial Court of Admiralty. *' Wh re in a British possession the Governor is the sole " judicial authority, the expression " Court of law " for the " purposes of this section includes such Governor." This Act is to take effect from the first day of July 1891. Thus, after that date, our Vice- Admiralty Court, at Quebec, will be abolished, and all its jurisdiction will be trans- ferred to the Superior Court. 18 CONSTITUTION ! ; $ i regulates the appeal of The 6th sectiou of this statute admiralty cases as follows : " (1) The appeal from a judgment of any court in a British " possession in the exercise of the jurisdiction conferred by " this Act, either where there is as of right no local appeal " or after a decision on local appeal, lies to Her Majesty the " Queen in Council. " (2) Save as may be otherwise specially allowed in a " particular case by Her Majesty the Queen in Council, an " appeal under this section shall not be allowed — " (a) from any judgment not having the effect of a defi- " nitive judgment unless the court appealed from has given " leave for such appeal nor " (b) from any judgment unless the petition of appeal " has been lodged within the time prescribed by rules, or " if no time is prescribed within six months from the date " of the judgment appealed against, or if leave to appeal has " been given then from the date of such leave. " (3) For the purpose of appeals under this Act, Her " Majesty the Queen in Council and the Judicial Committee " of the Privy Council shall, subject to rules under this " section, have all such powers for making and enforcing '' judgments, whether interlocutory or final, for punishing " contempts, for requiring the payment of money into " court, or for any other purpose, as may be necessary, or " as were possessed by the High Court of Delegates before " the passing of the Act transferring the powers of such " court to Her Majesty in Council, or as are for the time " being possessed by the High Court in England or by the " court appealed from in relation to the like matters as those " forming the subject of appeals under this Act. " (4) All orders of the Queen in Council or of the Judicial '• Committee of the Privy Council for the purposes aforesaid " or otherwise in relation to appeals under this Act shall " have full effect throughout Her Majesty's dominions and " in all places where Her Majesty has jurisdiction. " (5) This section shall be in addition to and not in dero- " gation of the authority of Her Majesty in Council or the OF THE JUDICIAL COMMITTEE 19 Judicial Committee of the Privy Council arising otherwise than under this Act, and all enactments relating to appeals to Her Majesty in Council or to the powers of Her Majesty in Council or the Judicial Committee of the Privy Council in relation to those appeals, whether for making rules and orders or otherwise shall extend, save as otherwise directed by Her Majesty in Council, to appeals to Her Majesty in Council under this Act." Section III : — General Jurisdiction. This third section transfers to the Judicial Committee, the entire jurisdiction heretofore exercised by the Privy Council. Since then, several statutes have amended this section. We will examine what is at present the jurisdic- tion of the Committee. "We may divide it into three classes ; the Jirst is the juris- diction to hear appeals in certain matters or judgments from Courts either outside or inside of the realm ; the second, in- side ; and the third, outside ; with a certain original jurisdic- tion in the two latter cases. 1. — There is an appeal to the Judicial Committee in all ecclesiastical cases whether from the Courts of the kingdom, or from the colonies or plantations. Before the Reformation, the lost appeal in this matter was to the Pope, at Rome, but after the Church of England had separated from that of Rome, the English Parliament gave this jurisdiction to Henry VIII, as the head of the Reformed Church. In early times the Crown exercised this right by means of a special tribunal appointed for each case, under the name of the " High Court of Delegates." Afterwards, by 2 and 3 "William IV ch. 92, this jurisdiction was delegated to the Privy Council, and finally by the above section, it was transferred to the Judi- cial Committee. 2. — The Jurisdiction of the Judicial Committee within the kingdom is very limited. The " Supreme Court of Ju- dicature Act, 1S1B " ^ has taken away in favor of the 1 36 and 3V Vict., ch. 66 Sect. 18. 20 ('OXSTITITTION 'H ■:l Court of Appeal its oriirinal jurisdiction in matters of lunacy or idiociy. The only appeals that may now be received are those from the decisions of the Court of the Warden of the Stannaries in Cornwall, if there should happen to be no Prince of "Wales, to whom in his Council as Duke of Cornwall the appeal properly lies. The Judicial Committee has also an original jurisdiction to grant an extension of Patents. ' 3. — The principal jurisdiction of the Judicial Committee is outside of the kingdom. It exercises original jurisdiction whenever a question arises between two provinces in the colonies or plantations, as concerning the extent of their charters and the like. This is according to the principles of feudal sovereignty. And so likewise when any j)erson claims an island or a province,inthe nature of a feudal principality, by grant from the king or his ancestors, the decision belongs on the same principle to the Judicial Committee. But most important is the jurisdiction over all the Courts of law and equity in the colonies. This is an appeal of right, based upon the principle that the king cannot refuse to hear his sub- jects who have been injured by the judgments of His Courts in the colonies when they appeal to himself for redress. The Euiilish Parliament sanctioned this doctrine by enacting : - " That it shall be competent to Her Majesty by an Order " or Orders to be from time to time for that purpose made " with the advice of Her Privy Council, to provide for the " admission of any appeal or appeals to Her Majesty in " Council from any judgments, sentences, decrees, or orders " of any Court of justice within any British colony or pos- " session abroad, although such court shall not be a Court " of Error or a Court of Appeal within such Colony or *' Possession." Therefore, an appeal from the judgments of all colonial courts lies to the Judicial Comnnttee de piano when the causes are within statutes allowing such appeals, if there exist such statutes. A great liberty is left to the Provinces 1 5 and C William IV cli. 83 ; 7 and 8 Vict., cb. 69, sect. II. 2 7 and 8 Vict., ch. G9. OF Till-: JUDU'lAi. COMMITTKH f lunacy ved are u of the Prince ps'all the also an ents. ^ mmittee isdiction 3 in the oi' their ciples of n claims jcipality, belongs But most law and sed upon his sub- is Courts ress. The !ting : - ,n Order ose made for the ajesty in or orders ly or pos- e a Court :!olony or colonial A' hen the if there Proyinces to limit the appeals, provided the royal prerogative is not interfered with. The colonial Legislatures are only limited in those powers of legislation by their own constitution, or by the instructions to the Governors. In the Dominion of Canada an unlimited liberty is left to the Legislatures on this subject. They cannot however take away the royal prerogative to grant appeals in all cases, without the express assent of the crown. And the Queen may always grant au appeal as an act of grace in any case. The last part of this section lays down a well known principle of justice, that the judgment or report to His Majesty and the grounds of the decision must be stated in open court. It is a guarantee to the litigants, but it is more for the public good, for it tends to fix general principles, and to establish uniformity of jurisprudence. This has been the practice of the Privy Council. Section IV : — Right to refer any matter. The powers given to His Majesty by this section are very important and appear to be unlimited. That is, that His Majesty may refer to the Judicial Committee, for considera- tion, any matter whatsoever H>0 CONSTITUTIOX grievance, their Lorships may still under this section take it into consideration and admit or dismiss the appeal. ' Section V •.—Ilf"-rinther8, who make sut;h alter- " ations as they think fit ; and when all are agreed it is " delivered as the judirment of the court, or ii" they difler, as " that of the majority, hut this has very rarely happened. " Occasionally, but most rarely, there has been a second " hearing. In point of form it is the decision of the Sover- " eign, to whom it is nported for approval." At the end of the section, there is a proviso allowing Ilis Majesty to summon any member of the Privy Council to attend the meetings of the Judicial Committee. The true interpretation of this proviso, it is said, is, that the Sover- eign may call certain Privy Councillors to sit in any spe- cial case, when by his experience, or science, he may be of great help to the ordinary judges, more particularly when technical difficulties are met with. But this does not confer upon the Crown the right to increase the number of Ordinary Judges of the Committee. Section VI : — Attendance of Judge x. This section as well as the 25th, 26th and 27th make rules to secure the attendance at the Judicial Committee of any members who shall happen to be Judges of the Superior Courts of law at Westminster, or Chief Baron of the Court of Exchequer, or Chief Judge of the Court in Bankruptcy, by providing for the nomination of other nidges during their absence to perform their duty as such justices. These are details which cannot be of any interest, and moreover have became inoperative siuce the " Supreme Court of Ju- dicature Ad" which entirely changed the constitution of the Courts in England. Section' VII : — Taking of new evidence. Before this Act, witnesses w'ere frequently examined upon oath before the Privy Council. But their deposition had 24 COXSTJTUTIOX never been taken in writing, and moreover, it had always been in cases respecting the conduct of public ofiicers!, or of expediency in enforcing Orders in Council, 8 "id not in ap- peals from Courts of Justice. This section provides for the nomination of persons to receive such depositions in writing. It is generally done by a Commission referred to the Registrar who is empowered by another section of this Act, to admi- nister the oath. Section VIII : — Admission of new evidence- Court beloio. -Re-hearing in A special power to admit new evidence is hero given to the Judicial Committee. The former practice was, not to admit on appeals any evidence, which had not been pro- duced before the Court below. This legislation may be of great service in cases of equity, especially if exercised with moderation and discretion. It has in fact been made use of in many instances. When fresh evidence is w^anted before the Judicial Committee, it i- better to allude to it in the petition of appeals, although il hao been granted on special petition. . Another power given in this section, tosend back the record to the court below for re-hearing, under certain instructions or modifications, is an extraordinary one. It can only be understood in considering the position of the Privy Coun- cil with regard to the colonies. This high tribunal having to judge appeals according to the laws of each colony, is re- quired to know the laws of each of them. And when we consider that these colonies represent many different pro- vinces, most of them differing in language, customs, origin and government, we must admit that the Privy Coun- cil is entitled to all the help possible, from the Courts below. The end of the section provides that His Majesty in Coitn- cil may direct that fe'gned issues may be tried in any Court of His Majesty's dominions abroad. The feigned issue is a very wMse provision of English OF THE JUDICIAL COMMITTEK 26 rtn/jfi- in law, as it tends to establish general rules for the guidance of decisions in future cases. Section IX : — Sioearing of ivitnesses. This section provides for the swearing of witnesses and the affirmation in lieu of oath in case of the witness being a Quaker or a Moravian. By an Order in Council of the 9th December 1838, besides the members of the Judicial Com- mittee and the Registrar, the Surrogates of the Committee have the right to administer the oath or affirmation. Sections X, XI, XII, XIII : — Feigned issues. Section X extends the power of directing and trying feigned issues over all courts of Justice in the kingdom ; the above section VIII had already provided for feigned issues abroad, at the discretion of the Committee. The other sections regulate the admission of evidence, and the right to direct new trials in those feigned issues, thus: By section XI, the deposition already given in the lirst trial by a witness who shall have died or be incapable to give testimony, may be read, or any documents filed, at the discretion of the Committee. By section XII, the Committee is empowered to direct the examination of the parties as well as other witnesses. By section XIII, authority is given to the Committee to order new trials generally or upon certain points only, and to admit oral evidence to prove the testimony of a wit- ness who is dead or incapable of repeating his deposition. Section XIV : — Commissions rogatoires. Section XIV gives to the Judicial Committee the right to issue commissions for the examination of witnesses upon interrogatories or otherwise. Section XV :— Costs. This section provides for the costs on the prosecution of any appeals or other matter, leaving them at the discretion 26 CONSTITUTION of the Committee. No mention was therein made as to the costs of the respondent, the general rule, heretofore, having been with regard to the allowance of costs, that where the decree or judgment below was reversed, they were not given to an appellant. But, exceptions have been made to this rule in a case of equity; where the appellant had been the victim of the bad faith of his adversary, or where disputes arose in the division of a large estate, and the case had not been instituted before a regular tribunal, the costs were ordered to be paid out of the estate. There was no invariable rule on the subject ; and not only were both par- ties usually condemned to pay their own costs, where the judgment was reversed, but cases have been seen where a successful appellant was ordered to pay the respondent's costs. ' On the contrary, if the decree was aflfi^rmed, costs were generally allowed at the discretion of the Committee. See vo. Costs. This system appeared contrary to justice and was amended by the Act of 1843. ^ This amendment establishes the discretionary system, which is generally recognized in all well constituted tri- bunals, that is, to make the losing party pay all costs, leaving them, however, to the discretion of the court. This system is adopted as the bt'st means of prohibiting incessant litigation of the most needless and vexatious sort, for the party who is in the wrong bears alone all the expenses of the trial. It may also be said that it is a check upon wrong-doing and an encouragement to amicable arrangements of disputed claims. An order in council of the 13th June 1853 confirmed this principle by enacting : " That any former visage or prac- " tice of Her Majesty's Privy Council notwithstanding, an " appellant w.vo shall succeed in obtaining a reversal or " material alteration of any judgment, decree or order ap- " pealed from, shall be entitled to recover the costs of the " appeal from the respondent, except in cases in which the 1 Ikrtrumvs. Godfreii, 1 Knapp, p. 381. 2 Gth & 'all Vict. chap. 38, seiM. XII. OF THE JUDICIAL COMMITTEE in " Lords of the Judicial Committee may think fit otherwise " to direct." The ancient practice was to give a certain sura (i;20 or <£100 according to the nature of the suit) ; the modern system under the statutes, and Orders in council, refers the taxation of costs, by interlocutory order, to the Registrar to be made according to a tariff. On the return of the allocation the amount of taxation is inserted in the report to Her Majosty, without any mention of the order of reference. Section XVI : — Judgments to be enrolled. It appears that the reports of the general Committee of the Privy Council, and the Orders in Council in judiciary matters were previously enrolled in the books of the Privy Council, in which all matters of political affairs, appointments, and, as a rule, all business transacted in coun- cil were entered. Those registers were of course private, and could not be inspected. It was a great evil, especially in case of ve-hearing. This section established archives to enroll orders and judgments of the Judicial Committee. Section XVII : — Reference to the Registrar. This section says that the Committee may refer matters to the Registrar in the same manner as they are referred to a master in the Court of Chancery. It is necessary to know what matters can be referred to a master in Chancery, in order to understand this section . By referring to Chitty's General Practice vol. 2. p. 442, we find that the statute authorizes and requires Masters in Chancery to " hear and determine all applications for time to plead, " answer, or demur, and for leave to amend bills, and for " enlarging publications and all such other matters relating " to the conduct of suits in the said court, as the Lord •' Chancellor, with the advice and assistance of the master '• of the Rolls and the Vice-Chaucel]or,or one of them, shall " by any general order or orders direct." 28 COXSTITUTIOX But this section goes further and gives power to the Judicial Committee to refer cases to experts, commissaires- enquMeurs and accountants. Even references to arbitrators have been granted, by consent of the parties, for the adjust- ment of disputed accounts, after the principal points in dis- pute had been determined by the Committee ; and, in those cases, the award of the arbitrators has been adopted by th& Committee in their report. Section XVIII : —Registrar. By section "^VIII the king is authorized to appoint a Registrar to tue Privy Council and define his duty. Section XIX -.—Subpana This section gives to the President of the Privy Council for the time being, the power to require and enforce the attendance of witnesses before the Committee and the pro- duction of papers under writ of subpcena. In case of diso- bedience, the person in fault is to be dealt with as being in contempt of court. Section XX -.—Time for appealing. I I The time in which an appeal can be obtained from the judgments of a colonial court, as well as the appeal itself, is entirely left to be regulated by provincial statutes, instruc- tions to Governors, orders of the Privy Council or Charters of the Court of Justice. When there is no special law, the established usage at the Privy Council is to take in con- sideration the application when it has been made within reasonable time. In case an appeal h;is already been granted in the court below, it must be proceeded with within a year and a day, or it may be dismissed wnth costs against appellant, on respondent's application. If no petition to dismiss is lodged, no notice is taken at the Committee's OF THE JUDICIAL COMMITTEE 29 Office of the expiration of the year and a day. But all these matters are discretionary with the Committee. See Juris- prudence Vo. Appeal and Summary of the Procedure. Section XXI : — Execution of Decree. This section directs that orders, judgments or decrees of the Committee for the Courts abroad shall be carried into effect as the king in Council shall direct. In the Province of Quebec, article 1182 of the Code of Civil Procedure provides for the registration of the decree of the Privy Council. Sections XXII, XXIII, XXIV. These three sections regulate the appeals of the East India Company from the Sudder Demanny Courts. Sections XXV, XXVI, XXVII : See our remarks under section VI. These sections determine how the Judges of other courts shall be replaced when they are called upon to sit in the Judicial Committee. Section XXVIII : — Contempts. This section has for its object the enforcing of Orders and Decrees, compelling appearances and punishing for con- tempts. It has been amended by the " Act to make further Re- gulations for facilitating the hearing of Appeals and other Mat- ters by the Judicial Committee of the Privy Council,'' ' which repeals so much of the above section as relates to the powers given to the Judicial Committee to punish for con- tempt, the same as were given to any Ecclesiastical Court by " An Act for enforcing the Process upon Contempt in the Courts 1 6 and 7 Vict. ch. 38, sect VI, VII, VIII, IX, X. 30 CONSTITUTION Ecclesiastical of England and Ireland. ^ The above statute (6 and 7 Vict.) provides for belie- ' • "^hing contempt, com- pelling appearances, and enio-o •'...'"raents, by giving to the Judicial Committee in ul". -coO jf Appeal from Ec- clesiastical Courts and from Admiralty and Vice-Admiralty Courts the same powers which are ossef*' .^ by the High Court of Admiralty of England. Of ooursv\ this 1^ >v became inoperative with regard to maritime cases, in England, since this jurisdiction was transferred to the Court of Appeal. The 8th section of the last recited act enacts that orders of the Judicial Committee may be enforced against persons residing out of Her Majesty's dominions, or having the privilege of peerage, or being a Lord of Parliament, or a member of the House of Commons by way of sequestration of their real and personal estate. Sections XXIX, XXX, XXXI. The last three sections settle some points of interior ad- ministration. The 29th section enacts,that the Registrar of the High Court of Admiralty may attend at the hearing of Admiralty and Prize causes before the Judicial Committee. The transfer of those cases to the Court of Appeal renders this section inop- erative. The 30th section enacts, that two members of the Privy Council who shall have held the ofl5.ce of judges in the East Indies or any other dominions, who being appointed, shall attend the sitting of the Judicial Committee shall be entitled severally to an allowance of i;400 yearly. And by 50-51 Vict. ch. 70 sec. 4 (1887), if both are sitting, they are entitled to .£800 yearly, if only one is sitting he shall be nevertheless entitled to the same amount. The 31st and last section enacts that this Act shall not prevent the King from acceding to treaties with any foreign prince appointing certain persons to hear prize Appeals. 1 2 and 3 Will IV, ch. 93. i Irf* ;atute (6 pt, com- :iving to rom Ec- imiralty he High r became nd, since peal, it orders t persons ving the Lent, or a .estration erior ad- igh Court alty and ransfer of ion inop- le Privy the East ted, shall entitled ■e sitting, itting he shall not .y foreign SUMMARY OF THU PROCEDURE BEFORE THE JUDICIAL COMMIITEE. The procedure ^f the Judicial Committee of the Privy Council is derived from Orders in Council and precedents. It may be practically summed up in the few rules which are given below, and which, of course, only show how an appeal is introduced and brought to a hearing. Incidents, constructions of the law ol procedure. Orders in Council and precedents will be found in our " Notes on the Constitution of the Judicial Committee " in the preceding pages, and below, in the " Jurisprudence of the Privy Council" under such words as : Appeals, Costs, Evidence, Practice, etc. 1° SECURITY. After leave to appeal has been granted, the appellant must give security, as decreed by the Order in Council of the 23rd January 1683. This is generally regulated by the law and practice of each colony. When the appeal is allowed under a special petition, the leave is generally granted subject to the ordinary conditions of appeals de piano ; if otherwise, the Order in Council giving leave to appeal will contain the conditions to be fulfilled. 2° TRANSCRIPT. Security having been given, the appellant must cause the transcript to be made and printed either in England or in the colony. This document must contain the demand, the issue as 32 PROCKDUllK * I' joined, the evidence, the proceedings below, the judgments appealed I'rom ; but all merely formal documents are to be omitted, provided they are referred to in the index which must be printed with the transcript. By a rule issued by the Judicial Committee, on 12th February 1845, it was ordered that the reasons given by the judges of the court below in rendering their judment shall be communicated to the Registrar or included, in the trans- cript. See vo. Practice : reasons of the Judges. Fifty copies, two of them certified, must be filed with the Registrar, if the transcript is printed abroad ; if printed in England, one hundred copies, must be printed, thirty for each agent, and forty for the Registrar. When the transcript is printed in England this must be done within six months, in appeals from the Cape of Good Hope or from those of the East India Company, and within three months, in all others appeals.from the arrival of the written transcript in England, or the appeal is dismissed without further order, at the discretion of the Committee. By an Order in Council of the 13th June 1853, when the appeal is on a question of law, the parties may agree, with the sanction ofihe Registrar, to submit the appeal on a " special case," and on certain printed documents. The transcript is the only authentic source of informa- tion for the Lords of the Committee. Some modifications may be made in it, during the pendency of the appeal, with the leave of the judges, in cases of error or omission. An Order in Council of the 24 March 1871 has established the following rules for the printing of the transcript ; Form : — Demy quarto. Size : — 11 inches in height, 8J in- ches in width. T//pes : — For the text, Pica ; for printing ac- counts, tabular matter and notes. Long Primer. Lines : — 47 lines in each page of Pica ; each line being 5J inches or 146 millimetres in length. 3" PETITION OF APPEAL. The next proceeding after the filing of the transcript is to lodge the petition of appeal. ' i OF TJLK JUDICIAL C03D1ITTEE 33 adgments ; are to be lex which on 12th :en by the ment shall the trans- filed with ; if printed , thirty for 3 transcript six months, those of the ,n all others in England, rder, at the 5, when the agree, with ippeal on a ts. of iuforma- lodifications appeal, with ision. s established script ; leight, 8i in- printing ac- Line>t ■.—47 5 J inches or anscript is to This petition is a short narrative of the facts, without ar- gument, but with a conclusion demanding the object of the appeal. It is adressed to the Queen in Council. It must be presented within a year and a day from the date of the leave to appeal, but this delay may be extended if cause is shewn. The general rule, except for the Province of Quebec, is to admit no petition of appeal, before the transcript is regis- tered. The reason for the exception made in behalf of our Province to present the petition, without transcript, on a certificate of the lower Court containing the date of judg- ment, the leave to appeal, and the declaration thnt security had been given, is that by article 1181 of our Code of Civil Procedure, the execution of the judgment ai)pt'aled from cannot be stayed after six months from the allowance of the appeal, " unless the appellant files in the office of the clerk of appeals, a certificate signed by the clerk of Her Majesty's Privy Council, or any other competent officer, and stating that the appeal has been lodged. " 4° APPEARANCE. The respondent must find ou' when the Petition to Ap- peal is of record and immediately file his appearance. If no appearance is produced on behalf of the respondent, the appellant may obtain from the Committee a summons ordering the respondent to appear within two months.which is posted in two public places. On the expiration of this delay, the Lords issue a Peremptory Order giving the res- pondent six weeks more to appear. If default is again re- corded, another Peremptory Order is made ordering the res- pondent to put in his case within fifteen days, under pain of Lis case being heard ex parte. Similar orders may be obtained by co-respondents, if the app^illant neglects or refuses to apply for them. It is at this stage of the proceedings that objection to the right of appeal or all other preliminary objections must be made. 84 im{()ci<:duj{k I r ,• li I! Both |)arties being before the Court, or Peremptory Orders having being obtained, the parties must prepare and enter their case. The case consist of a statement of the facts alleged and proved, of the claims of each of the parties, their argunienls and authorities, the pretended errors of the judgments of the court belovv^, and the grounds of the appeal. If the appeal is on a question of law, it may be submitted on a special case as aforesaid. They must be printed in the same form, size, types and lines as the transcript, and indexed. An Order of 10th April 18;J8, ordered that all cases shall have a joint appendix of the documents referred to in the cases. After each party has lodged his case, copies are exchanged between them or their agents. The first agent who brings his case for registration, is en- titled to an Order calling upon his opponent to file his case within a month. Should he fail to do so, a Peremptory Order is served on him requiring him to file his case with- in two weeks itnder pain of the appeal being heard ex parte. According to Macpherson, ^ the case is generally pre- pared by the junior counsel, and revised by the "junior and senior counsel in consultation," and must be signed by them. (Order, 10th May 1730). The Order in Council of the 26th June 1873, provided that cases must be filed within twelve months from the re- gistration of the transcript, or the appeal maybe dismissed. O'^ HEARING. Cases on both sides being filed, or the delay under a Peremptory Order to put in the case having expired, either of the parties may make applicf.'iou to have the appeal ins- cribed upon the roll for hearing. This is obtained as of course. 1 Privy Council Practice, p. 84. OK TIIK .IliniCIAT. COM.MITTHH 86 ition, is eu- le his case Peremptory [case with- rd ex parte. rally pre- uuior and signed by i, provided fom the re- dismissed. under a d, either of appeal ins- ained as of Orders in Council regulating the hearing of cases can be found as far back as 20th February 1(527 : He tion. 11, of this order enacts that at the hearing, the Lords, by questions or otherwise, " are to inform thera- " selves of the truth of the matter of fact, but not to dis- *' cover any opinion till all be fully heard." Hediun V, regarding the inscriptions of cases for hearing, says : " Upon the petitions of suitors, the clerk of the couu- " cil, who then waits, shall set a note, when the petitions " were exhibited, that the Lords may thereby see how the '• suitors stand in seniority, and according to that and other *' necessity of occasion, they may be despatched, wherein res- " pect is to bi had to the poorest petitioners, that they be not " wearied out with over long attendance." To prevent the putting off of cases for want of prepara- tion oil the counsel's part, there are three orders of Council. The firsty'lSth. January 1727 ordered that when a day shall be appointed to hear any appeals or complaints, such plea shall not be allowed as a reason to defer the hearing there- of; the second, 21st April 1746, makes the order " that when " appeals or other causes are pi\t upon the list of business " for hearing, the party or parties (at whose request such " .appeals or causes are set down), shall be in readiness to be "heard, whenever the committee shall appoint a day"; the third, 9th July 1751, says : " That when the said appeals •■ or causes shall have been so put upon the list of business " for hearing, the same be heard in the course they are so " set down, without any further notice, order or direction " of the committee for that purpose." On the 23rd February 1828, their Lorships ordered that, in future, cases would take precedence according to the date of their inscription for hearing. Heretofore, they had ranked according to registration of cases. The appeal must be inscribed during the twelve months from the lodging of the cases, or, on the report of the Re- gistrar, it may be dismissed (Order in Council of the 26th June 1873). 3(i I'UOCIODUKK 1" COSTS. As this laiittor of costs is explained elsowhero ', only a few remarks are necessary here. Objectioii.s to the tiixatiou of a bill ofrosts must bi' miido iu writing, and the matter broui^ht beibre the Committee. The taxing which was formerly mude by the Master in Chancery, is now, by the Order iu Council of llih of August 1842, ordered to be made by the Registrar of the Privy CouiK^il, according to the foUowinii' tarilf: Schedule, of fees allowed tu Solicitors condurtiHg- ap/ietils of other hitsiness before the Jvdiriul Coniviittee of the Privif Council under ller Ma/esli/'s Orders in, Council of the 1 1th August 1842, and the KM June 1853. t .s. d. Retaiuingfee . 13 4 Perusing official copy of proceedings allowed at the rate ofOs. 8d. for the perusal of 3 brief sheets, or 2.") folios Attendances at the council office, or elsewere, on or- dinary business, such as to enter an appeal or appearance, to make a search, to lodge a peti- tion or affidavit, or to retain counsel 10 Attending at privy council office to examine print- ed copy of transcript with the original, /^errfi'ew. 2 2 Instructions for petition of appeal 10 Drawing petition or case, per folio 2 Copying, per folio 6 Drawing small petitions for Orders etc 10 Instructions lor case 10 Attending consultation 10 Correcting proof sheets, per printed sheet 10 Correcting foreign or Indian proof sheets, per print- ed sheet 1 1 Attending at council chamber on a petition 16 8 1 See uiuler : " Notes on the Constitution of the Judicial Committee " and "Jurisprudence". Vo. costs. OF TIIH .lUDKJFAT. C().MMITTI«;K 87 be mado mmiUiie. liist'^r m lUh of 1 ivr ol" tht' Is or other Vji Council th August C s. (1 .. 13 4 t iie or )!•- or ti- ... 10 it- m. 2 2 ... 10 ... 2 ..0 6 .. 10 ... 1 ... 1 .... 10 6 ut- .... 1 1 ... 1 6 8 )ramittce " and C H. (I. Attending council chamb«r all (lay on iiii uppoal not called on 2 (> H Attending a hearing 3 6 8 Attending a, judgment 16 8 tJessions i'ee, (ibr the lesal year) equal to lour term fees r. 3 8 Attending 'on 2 2 Attending ai - ^ancil office on the drawing up of minutes for committee report. 1 1 Cuunril o(/ii:efees on iippeuh and Petit ions to the Queen in Council. 1 1 1 Lodging petition of appeal • Entering Lodging case ...- Entering appearance 10 Setting down case 10 Summons 10 Committee report 1 Order of Her Maj»sty, in Council 3 Committee Order 1 Lodging affidavit I petition 1 Notice to attend Searching books for inlbrmution for parties 10 Certificate delivered to parties 10 Copies of papers (each side) o Committee references 2 2 Lodging caveat 1 1 Subpoena to witnesses 10 Fee for taxation (appeals) 3 3 Do do do (petition.s) 1 1 10 o 12 1 1 10 d. 6 6 KEE.S ON HEARING APPEALS IN PRIZE CAUSE.S Hearing a cause. £, s. d. To the successful party y 15 (J To the unsuccessful party 2 2 38 IM^UCKDURK Where both parties may succeed, although the sen- tence may have been iu part reversed 3 18 9 Desertion of appeal 2 17 9 U 1 I I I Sentence Uikeii bij consent or in /lanaiii. £ s. d. To the successful party to whom the fees of interlo- cutory are charged by Registrar 4 15 6 Where counsel are heard, cause not determined, each party 2 2 Motion by counsel, gaining party 1 1 Hearing on admission of allegations or act on petition, gaining party 2 2 If part admitted and part rejected, each party 110 8° COUNSEL AND SOLICITORS. It is the practice of the Judicial Committee to hear two counsel for each party having different interests. Rules have been established by an Order in Council dated y 1st March 1871 regulating the right of practisingas solicitors before the Judicial Committee. This right is given : First, to every proctor, solicitor, or attorney practising in London, and duly admitted in any of the courts of West- minster, without the payment of any fee. Second, to every person duly admitted to practice as soli- citor by the High Court of Judicature in India or in the colonies respectively. But provided they apply, by petition, to the Lords for leave to be admitted to practice before the Committee ; and then they shall have to pay annually, on the loth November, a fee of five guineas to the council office. Any solicitor practising before the Judicial Committee who wilfully acts in violation of the rules and practice of the Privy Council, or who wilfully misconducts himself in prosecuting proceedings, or who refuses or omits to pay council office fees or charges, is liable to an absolute or tem- porary prohibition to practice before the Privy Council, by OF THE JUDICIAL COiLMITTEK 39 € s. d. 3 18 9 2 17 9 £ s. (1. 0- ... 4 15 6 ch ..220 .... 1 1 on , ., 2 2 .... 1 1 hear two juncil dated as solicitors iveu : •ractising in ts of West- ctice as soli- ia or in the by petition, e before the lunually, on the council Committee i practice of himself in jmits to pay olute or tern- Council, by the authority of the lord of the Judicial Committee, upon cause shown at their Lordships' bar. This order in Council applies only to solicitors practising in England. The parties themselves or any barrister from the colonies may be heard by their Lordships, in their own cases, without any formality. ' Every solicitor practising before the Judicial Committee is bound previously to subscribe the following declaration : Form of declaration. " We, the undersigned, do hereby declare, that we desire '■ and intend to practise as solicitors or agents in appeals '■ and other matters pending before Her Majesty in Coun- " cil ; and we severally and respectively do hereby engage " to observe, submit to, perform, and abide by all and every '■ the orders, rules, regulations, and practice of Her Majes- " ty's most Honourable Privy Council and the committees '• thereof now in force, or hereafter from time to time to be '■ made ; and also to pay and discharge, from time to time, " when the same shall be demanded, all fees, charges, and " sums of money due and payable in letipect of any appeal, '■ petition, or other matter in and upon which we shall ' severally and respectively appear as such solicitors or '• agents." Beside the definite rules of procedure enacted by statutes or Orders in Council, the Judicial Committee has general powers ordinarily belonging to Courts of justice. Sec- 1 The following extract of a letter written to the lute Mr .Jiisf'-e U. Mackay was published, in 1862, in the Lower Canada Jurish, vol. VI, p. 87: Council okfick, WuiTEiiALt,. November, 25th 1881. •■ In answer toyour qnestiop. I beg to inform you tliat the Bar of the •' Privy Council is an open bar for all advocates duly qualified in the colonies and • dependencies from whicli appeals lie to the Queen in Council, and consequently, •' any Canadian advocate would be heard by their Lordships in Canadian appeals." (Signed) IIknuy Hkkvb, Registrar P. C. 40 PJ{OCEI)UEH I' i I i: tion 5 of 6 and 7 Vict. ch. 38, gives to the Privy Council, in conducting appeals, the same powers possessed by the Queen in Chancery, the High Court of Admiralty of England, or the Lords Commissioners of appeals in Prize causes respectively ; which powers now are all consolidated in the Court of Appeals and the High Court of Justice, but the same have remained into the Judicial Committee. For reference to those powers, see : Intervention, Reprise dHnstance, Execution, Expertise, etc. Some old rules are remarkable, such as will be found, for instance, in the Orders in Council of the 2nd February 1627 : " III. "When any cause is fully heard, the parties are then to retire, and the Lords to debate alone, and if any variety of opinions continue, which cannot be reconciled, then the Lords are to vote it severally, if it be demanded ; and the Lord President, or one of the principal secretarys, if the Lord President be absent, is to take the votes." " IV. In voting of anj'^ cause, the lowest councillor in place is to begin and speak first, and so it is to be carried by most voices ; because every councillor hath equal vote there : and when the business is carried according to the most voices, no publication is afterwards to be made, by any man, how the particular voices and opinions went." And with reference to the Registrar : " VII. When any order is agreed upon, the clerk of the council attending shall take notice thereof, in writing, and punctually read, openly, how he hath conceived the sense of the Board, that if anything be mistaken, it may then be reformed ; and, afterwards, when the said clerk shall have drawn the said order at large, in any cause of importance, before he enter the same into the council book, or deliver it to any person, whom it may concern, he is to show the draught to the Lord President, or. in his absence, to one of the secretarys of state, to be allowed and signed under one of their hands, before the entry and delivery thereof." Council, id by the (liralty of s in Prize isolidated »f Justice, ommittee. m, Reprise DIGEST OF ALL THE JURISPRUDENCE OF THE PRIVY COUNCIL found, for .ary 1627 : sare then y variety , then the ; and the •ys, if the SUMMARY r ncillor in carried by "ote there : the most e, by any it." irk of the riting, and the sense ly then be ihall have nportance, • deliver it show ihe ;, to one of under one •eof." PAGES ' ABANDONMENT j See Insurance : eodem verba. I ABANDONMENT OF PROPERTY Penalty Kou hefusal 43 ACCOUNT Accounts settled Books of account Default of the accountix(! pahtv DuTV OF A(iENT TO. See Principal AND AfiEXT : iisdtm verbis. Ennons in accounts Joint accounts PllESCUIPTION Who is liahle to tender ACQUIESCENCE By silence In judgment In PLKADixds. &e Practice: dein verbis. Operates as a release Power to acquii;sce Sale of ship hy master Undivided possession Cause of. verbis. ACTION See Practice : iisdem 47 47 48 48 4!( 49 49 Cross-action. A(iE3 Insolvency of appellant pending THE 113 OnjECTlON TO THE RIUHT OK. .See Practice : lisdevi verhis. Restoration of 113 Security in 115 Special applications 118 Time for appealino 124 APPEARANCE See Practice : eotkm verbo. APPROPRIATION See I.mputation. ARBITRATOR Powers ok 127 As Amiahlk compositeur 131 ARCHITECT AND CONTRACTOR 67 APPEAL Appealahle VALUK 08 Con.solidation of 78 Cross-appkals 78 Dismissal for .non-prosecution... 78 False and incompetent to From interlocutory .iu^ximents.... 83 From courts OF first instance 85 From the Supreme Court of Ca- nada. &cAppeal: .yiecialajijili- calioii. From the Superior Court to Court OF Queen's Bench 86 In criminal cases 80 In divorce cases 92 In election cases n2 In forma jiaii/ierin 101 In Jersey Island. tSf« Practice : iiK'l' m rerliix. In matters of discretion 102 In matters of in.solyency io3 In matters OF c(;;.i(j.s 105 In matters of penalty 107 In matters of e.\ecution 107 In questions of fact tried iiy a JL-iiv 107 In yUKSTIONS OF FAIT 108 In yCKSTIONS OF COSTS HI In IJCESTIONS OF FORM AND PRACTICE 1 12 In gCK.STIONS OF JUIIISDICTION 112 In guKSTioNs of qvantuiii for sal- vage SKivVICES 112 In Writs of eriior U.i Rksponsibility of 131 ASSESSMENT Exemption 138 Mode of municipal 138 On railways 139 ASSOCIATIONS Jurisdiction of Courts over pri- vate 142 ASSURANCE See Insurance. ASSIGNEE See Insolvency. ATTACHMENT See Garnishee, Recmstration. ATTORNEY FlNINC, SUSPENDINO OR STRIKING ATTORNEYS OFF THE ROLL FOR CONTEMPT OB MISCONDUCT 143 Powers OF attorney nJ /iVcj^ Hi) Value OF services 151 Number of counsel to be heard See Practice : iisdem verhh. Solicitors before thkPrivy Coun- cil. See Practice : iisJem rcrbis AUCTION See Sale, Gamino and Waoerino. \'- I'AdES 'ENDING 113 V. See 113 115 118 124 E ABANDONMENT. See Insurance : eudem verba. ON I 127 131 fTRACTOR 131 r 138 138 139 KU Pltl- 142 T ox. ■IIIKI.VO LL FOU 143 ftm U!) 151 llKAl(t) his. i-Cl)lN- n I'trhis ABANDONMENT OF rKOPERTY. I'ENALTV FOR REFVSAI.. ("AKTEH v. Mol.Sll.N ' 1. Article 2274 of the Civil Code enai ts that " auy debtor imprisoued or held to bail in a cause wherein judg-ment lor a sum of $80 or upwards i.s rendered, is obliged to make a statement under oath and a declaration of abandonment of all his property for the beneht of his creditors according- to the rules, and subject to the penalty of imprisonment in certain cases provided in ch. 87 of the C .S. L. C, and in the manner and form speciHed in the Code of Civil Procedure." The Code of Civil Procedure lame in force eleven months later, and contains no spei-iiic penalty for neglect to comply to the provisions above cited, although it has provisions relative to abandoniuent of property. The Judicial Committee decided that according to art. 1300 of the Code of Civil Procedure, the above article 2274 of the Civil Code was repealed, and that a debtor could not be punished if he refuses to make abandonment of his pro- pertv, by imprisonment for one year as mentioned in the C. S." L. C. ch. 87, s. 12, sub. s. 1. 2. Lord Blackburn, p. 585 ;—" The question. Avhioh their Lordships liavo tbiiinl to 1)0 one of consideralile (lifficulty, depends on the true construction of the two codes of Lower (^anada. the Civil Code, more imrtioidarly art. 22U and arts. 2()13 and 2(>14. and the Code of Civil Procedure, more jiarticularly art. T()(i and those f'ollowinf!: it. and art. 18G0. There were careful and elaliorate ])rovisions <''>r framing- the two codes in question : but, notwithstanding all the precautions taken, there may he, and in fact -n the jirosent case there arc, (loul)ls at to what is the meaning of the language eni]>loved. And the Civil Code of Lower Canada, art. 12, is "that when a law is " doubtful or ambiguous it is to be interpreted .so as to fulfil the " intention of the Legislature, and to attain the ol)jeet for which i( was j)assed." It is therefore material to inquire how and why the codes w. re Quebec, 1883 April 18, L. R. VIII Appe il Cases 530. 44 ABAXDOXMKXT OF PJIOPKRTV intention of the LegiMlii- :i. PKKAI.TT FOR REri7N4I<. enactod, iso as to a.scertain wliat was tlio tiiro, and what tho oljjoct for whicii tlioy woro enacted. First, liy Statute 20 Vict., c. 4'ii, wiiicii afterwards became tho second ciia])ter of the C'onsolicUited Statutes of Lower Canachi, Com- missioners were apjtointeil, wiio were directed (sees. 4, 5 and (i), to re(hice into one (!o(le, to he called the Civil Code of Lower Can;'..ia, those provisions of tlie hiws of Lower Canavv\i appiiruiitly lost siirlu of in several places, uiul. amonirst others, in ilio art. 2274 of llie (Jivil (y'odc, whieh is in the folldwiny; words : ' This cannot he understood, without reailing and consti'uinro]iertyin his statement mentioned to his credilors, and by sect. 12 ;^2} does imjiose penalties on a defendant ni'glecting to tile such statement, yet there are no penalties co-extensive with art. 2274, and there certainly are many jienalties which, by chap. 87, s. 18, arc imj)osed ui)on debtors who have not been arrested, against whom a judgment has gone in a commercial cav.se, which cannot on any construction be Ucjit alive by art. 2274. Those diffi- I . • _ I 1 ._ . 1 • (' ... .l.lm I • 1 • i . .. I • ._ culties are all removed if art. 2274 is read as meaning '' according " to the rules and subject to the penalty provided in certain cases " in cha[). 87, until tht Code of Civil Procedure l)ound to [jcrform. The question how he is to be comiiellcd to do so does not arise on this a|>peal. It is enough to say that he is not liable to im]»risonmeni for a vcar. 1 Fur tlie luticle see Uie bending of this case. A(Jt,'(jUNT 47 liici's, and. is in tho (truinff the |)i'ii!iltios of L'torniiiiing hmijfh tliis u-t 1)1' chap, ihroifiite a1 \y that tho 1 i'ruc'iHliirc al)ri),i:;ate(l .spefiticd in |''(»r though t. •J.21i, lint A'lioni jiidg- a stati'inont wiliingncHs lis croditorn, ni'gliH'ting toiisivc with •h, liy ('ha]». nn arrested, •av.se, whidi Those diffi- " according jrtaiu caHCh to force, and )f Civil Pro- to lie I'onnd r Lordsiiips 1 on its lace witii liy tlie tion cannot lactnient is e (lonl)t and Legislutnre I lie ('ode of not impose refusing to of aft. 7l>li not arise on iprisonincut ACCOUNT ACCOUNT SETTLED. MckKM-AU V. WAM,AC'K ' 2. Tho parties had settled their aecoiiuts by striking a general balaiiee, reserving ont; item i'or iiiture investigation which afterwards was also settled by a promissory note. This promissory note not having been paid at maturity, one of the parties brought an action to re-open the accounts. It was held that the settlement amounted to an ajustment of the griieral account between them, and that the accounts so I'losed could not, in the absence of false rein'es(Mitations and fraud, be re-opened because the note had been dis- honoured. The [{Kiirr Hon. T. Pk.mhkrtox bKidii, p. 401 : — The law inca.so.s of tliis kind I appreliend to be ])erfectly clear. Parties having accoimls hetween them, may meet and agree to settle those accounts l)y the ascertainment of the exact htdani'e ; and, il' they mean to ascertain the exact balance, it maybe necessary for that purpose, and i)robably is necessary in most cases, that vouchers sliouM bo proiluced, and that all the infornmtion which is possessed on one side and tlie other should be funusjied in the settlement of those accounts; and, if it afterwards turn out that there arc errors in tlie accoinit, it is a sufficient ground for o})einng the accoinit and for Betting it right in a court of eiiuity. If, on the other hand, persons meet and agree, not to ascertain the exact balance !iut agree to take a gross sum as the balance; a sum which one is willing to ])uy, and tho other is content to receive as the result of ^hose accounts; it is obvious, that the |)roduction of vouchers is entirely out of the <[uestion, and errors in the account are so also, lor tlie very oi)ject of the jiarties is to avoid the necessity for producing those vouciiers, upon the assumption that three are or may be errors in the account so iiettled ; therefore, it is either an account stated and settled, in the formal sense of tliat ex])ressioii, or, it is tjie case of a settlement by compromise. In either case it may be vitiated i>y fraud ; in either case it is good for nothing, if, either from the collusion of the parties, u[)on the circumstances umler which the settlement takes place, it is jiroved, in a (Jourt of Kcpiity, that the transaction was not so liiirly and so fully understood between the]iarties, either from the confusion in which it was involved, or from inisre])resentations made on the one side or the other, as it ought to have been, and tliatr injustice has been done tt) either side. BOOKS OF ACCOUNT. SeETUL BaHOO v. IIITRKISIIEN DoSS ' 3. In a case of rendering of account, a court should not deliver its judgment before the original books of account 1 Calcutta, 1853 June 20, VIII Mooie 378. 2 Bengal, 1834 Feb. 8, III Knapp 255. 48 ACCOUNT i i ! iiif^ BOOKM OF A('V:VT. havt' \n'{^n inspected ami vt-rilit'd, unless by some means it can l)e satislicd, that there is no i^round whatever in the objections niadt; by the opjio.sing party. T?he record was sent to the court below for the inspec- tion of the orii)inal books of the iirm in litigation. DKt'AVl.T OF THE AVCOVXTIKO PARTY. UkTE.MKVER v. OUKK.MUIvLEK ' 4. The accounting' party having niade default to rend(ir his ai'counts in the ionu ordered by the court, after the rejection of his lirst account which were only intromissions in his qualities, was condemned and his property seized and placed in custody to al)ide the sentence of the court. On an appeal and cross-appeal, the Privy Council, setting' aside all objections, reviewed th'^ items of the account fyled. The Api)ellant and the iit^spondent succeeding in part, uo cost ■weri' aAvarded. DUTY OF AOEXT TO. See PRINCIPAL AND AuENT : Hsdem verbis. ERRORS IS ACCOUNTS. Daniel v. Sainclair " a. A settled account may be re-opened to correct mistakes wln'u both parties misunderstood the facts and the law, and compound interest was charged instead of simple interest. G. In the absence of special understanding simple interest only can bi- charged. 7. There are (;ases in the courts of common law in which it has been held that money paid under a mistake of law cannot bt^ recovered, and it has been further held that, under certain circumstances, the giving credit in an account may be treated as so far equivalent to payment as to prevent sums wrongly credited being made the subject of set-otf. Shyrin^- V. Greenwodd 4 B. & C. 2H1. But in equity the line between mistakes in law and mistakes in fact has not been so clearly and sharply drawn ; and in a great many cases relief has been and can be given to a party who has dealt with his property under the inlUience of a mistake. Earl Beauchamp v. Winn, Law Rep. (J H. L. 234 ; Cooper v. P/iibbs, Law Rep. 2 11. L. 170 ; McCarthy v. Demin, 2 Rm$x & Mm/ 614 ; Livesey v. Liveaey, 3 Russ 287. 1 Beibice, 1838 Feb. 8, II Moore 93. New Zealand, 1881 Feb. 22, L. R. VI Appeal Cases 181. ACCOUNT 49 lie means rer iu the le iuspeo- MLLLKR to reud«r lifter the nissious iu seized and art. On an g aside all yled. The :"t, no cost Isdem verbis. :t mistakes e law, and interest. iU; interest in which te of law lat, vmder luit may be ut Slims Sk/jrin-i- i between so clearly f has been is property V. Winn, . 2 II. L. V. Livesei/, le JOINT A«'<'Ol'5fTS. Lindsay v. I»i kk ' 8. According to the principles of English law, parties subject to a joint account are liable jointly and severally. iV. And where a case has been decided by the Privy Coun- cil under the English law and rules of procedure, the court below is wrong in applying the Roman-Dutch law to the proceedings in execution of the judgment. PUK!>)('iUPTION. Smith v. () (tuadv ' 10. Lapse of time will not alone be a bar to the right of an executor to have an account of the testator's estate taken with a view to ascertain his liabilities. WHO IS MABLE TO HKNDEIt ACCOUNT. Ek.MATIX((KU v. (tI (IV ' 11. A clerk and manager of a sheriff, who received and paid, in that capacity, various sums of money in the course of the business of the olBce, is not liable to an action or bill for account. Loud Campbell, p. 14: — There i.s no doubt that whore a ])ersoii is employud by another to transact business for his eniploj^er, and is ailoweil to liave money in his hand.s, in the character of agent or clerk, he is liable to account for such money. But there is u great ditt'erence between a party so circumsttmced, and one who, being immediatlj' under the eye of his employer, and subject to his daily control, keeping, in fact, not his own, but his employer's accounts, entering them in his master's books, and giving over the vouchers and receipts to his custody. Whether such a dealing can constitute the relation of agent and principal, so as to make the former liable to an action, or bill for account, must depend on the especial facts of the case; prima facie, such liability would not exist. ACQUIESCENCE BY HII.ENCE. The East India Company v. Eobertson et al. * 12. In Madras, the government of the East India Company created a civil service annuity which was to be provided half by subscriptions from the civil employees and half by the company. The subscriptions came in excess of what was 1 Cejioa, 1862 June 20, XV Moore 452. 2 Jamaica, 1870 July 7, VII Moore N. 3. 106. 3 Lower Canada, 1844 Nor. 30, V Moore 1. 4 Madras, 1859 March 17, XII Moore 400. 60 AC(iUIK.Sht oi' tlii' suh- KiiihiTs to till' ri'i'uiid, althoimh no law or nilt's nuthori/i'd Kiich ri'l'iiiid. * i;i LonniNAN V. IIa.II .ludSl l; hlllM.AhlNA. TIlO "HvHUiKis" ' 1:5. A spocial application lor costs inadc by a losiiiu' i)arty iu a suit, alter the ri'iidi'riiig of the Jiidiiiiu'Ut, is an acquits- i'l'iici' ill tho jiidiiiiu'iit, and is a bai to a demand lor leave ol' appeal. MimwN V. Davkni'iikt ' 14. The taxation and receipt of the hill of costs is on acquiescence in the jiidn'inent, whii'h prevents an ap})eal. 15 A Judgment of the Prerogative Court of York, granted the jirobate of a will with costs to be paid out of thi^ Testa- tor's I'stati' to both parties. These costs were taxed and i)aid, both proctors attending. About ten months after, application ■was made by the party originally opposing the will for leave to appeal. Such application refustnl, on the sround that according to the iiniversal practice of the Judicial Committee, the taxation and receipt of the costs was an aL'(|uiesceuce iu the seutence, aud perempted the appeal. Ekai r>Kv V. TiiK Mavuk i^ al, ok .Munthk.ai, ^ It). A mere respectful sul)mission to the ruling of a court or of a judge is not an acquiescence in the legal .sense. LuHi) CHIEF JUuoN i'di.i.ocK. p, ■\2i') : — It seems to us that wlieii the justii'cs (leciiled tliiit tiioy hud no power to adininislor an oatii, and, therofore (as wo consider), doclincd to .swoar the witnt'sses and receive their te^liniony, tiio claimant could do nothing- more than he did, it was not his liusinoss to protest a court, but respect- fully to suliinit to a Icual decision. In order to prove that he acquiesced, and waived his ri^-ht to com])lain of an illegal di^cislon, it ouLE.iDi.\«M. Hee ruAOTicii; : mdem verbis. lloNTUKAI. ^ viling of a legal sense. us that when ster an oath, ho wit Mosses lothinj;- more hut rospoct- ovo that he loiiul decision, lo give the OI>t:il VTRN AN A KBLKANF.. MoTz V. .MoitKAr • IH. A settk'ment by ii minor with his tutor, Imsed on an iuv(!ntory ineorreetly mad(% aceounis illegally rendered, althouu'h voidable, cannot be st^t aside if evidence shows that sul)se(iu(mt transactions had taken place l)et ween the minor and tutor, after the former was of ag(i. These trans- actions amounting to a release of all claims on the part of the minor. Claims although not barred l)y prescription may be extinguish A lea(»e or destroyed by conduct operating a« a I lon^ T' lact that fn boundaries of some description within the terms of article 52 of the same Code. 2G. The plaintiff must also prove a possession of a year aud a day, based on a title capable of being the foundation 1 Qu6bec, 1888 Doc 5, III L. R. IV Appeal Cnscs 135. 54 ACTION PONHEMNORY, of prescription, <.outiniTOUs, uninterrupted, peaceable, i^ublic, unequivocal, and a Hire de //roprietaire. Sill James W. Colvillk. p. 145 : — Moi-covor, it j^ooms retijioniiiile that the party Avho relics upon mere proof of aolual jjossossion and (Iocs not show a possession comnK'neing with title, sliould prove a possession from whieli title may Ik* presumed, and tlierelore. a ]ios- Hcssion which, if continued during the period of prescription, would ripen into a title by ])rcscription. riuht to n1je. Agacio v. Forbes ' 27. "When several persons are benefited by a contract made by one of them, the latter is competent to sue iipon the contract in his own name, although the other parties for whose benefit the contract was made may be entitled also to sue upon it ; except where it is impossible to split the consideration into parts, e. g. in a case where an advance of money is lo be made not by a partner, but by his firm, there it is a joint consideration in no manner separable, so as to apply any part of it to the separate partners. PuRTEors V. Keynar- 28. Agents are prohibited from bringing suit in their names by article 19th Code of Civil Procedure of the Pro- vince of Quebec. But this arti(>le is not applicable to trustees in whom the subject of the trust has been vested in pro- perty and in possession for the benefit of third parties, and who have duties to perform in the protection or realization of the trust estate. 20. Where trustees sold property over which they had possession and title acquired from an assignee, under the Insolvent Act of 1875, it was held that they were entitled to sue the purchaser to whom they had delivered posses- sion, upon his covenant to pay the balance of the purchase money. The cases of Bron-ne v. Pinsoneault ' ; and Bur/and V. Motf(dt\ were overruled. 80. Their Lordships first commented upon the judgment of the [Supreme Court of Canada in the case of Browne v. Pinsoiienu/f in which it was held that a voluntarily assign- ment by an insolvent debtor of his estate and property, for the benefit of his creditors, did not confer ujwn the assiunee the riaht to sue or deleud, in his own name, the actions 1 IIoii},' KontJ, 18G1 Feb. 4, IV Law Times X. S. 155. •> Qiiibec, 1887 Xov. 15, L. R. XIII Appeal Cases 120. 3 3 S. t". R. 102. 4 11 S. C. R. TO. ACTION 56 )le, public, s reasonable ises!«i<>n and uld jirove a .'lure, a jios- )tiou, would Forbes ' a coutrai't siie upon lier parties be entitled ble to split an advauce jy his tirm, ?parable, so Kevnar- lit in their )i" the Tro- ! to trustees ted in pro- parties, aud realization h they had under the 're entitled red posses- piirehase nd Borland judgment Broiriie v. rily assign- roperty, for he assia'uee the actions RUaiT TO Nue. accriaiug with reg-ard to the estates and property assigned. Then, upon the judgment of the same Court in the case of Barland v. Moffalt which couhrmed the same principle. Li>RiJ Fitzgerald, p. 131 ; — Their Lonl.>ship have now to consider these two deeisions, ot whieh the earliest was Broun v. Pinsonnault. reported in 8 Supreme Court of Canada Re])orts. ]>. 102, on apjjeal from the Court of Queen's Beneh. There were two (questions. The first was whether a particular contract was terminated hy force majeure. The court so held, an of the Cotle of Civil Procedure, is that '■ no oue can sue " par procureur." Of course in certain cases, wlien '■ sjiecially aulhorizeil by law to do so, certain trustees ma\' sui' and " a])pear before the courts as such ; so can assignees under the ■' Insolvency Acts; but here the jilaintitls have no such standing — " thty are, merely the attorneys of Steele's creditors. It is true that '■ Pinsonnault passed the deed of April. IS"!*, with them, acting in •■ their (piality of such trustees, but this does not give them any '• right to aiipear as such before a court of justice." Moffatt V. Burland, which was the other case. a])pears to have been decided on the 27th of May. 1884. It came betbre the Court of (Queen's Bench at Montreal, and the head note is this: " (1) A '• sale of ii chattel may lie considered as a mere pledge instead of an '■ actual sale, ami invalid as a pledge tor want of delivery and pos- •■ session. (2) The assignee under a voluntary deed of assignment " by a debtor for the benetit of his creditors, "can as such assignee •■ sue and lie sued in reference to the estate and ])roperly assigned • to him." With the decision of that court on the main (piestiou their lordshij)s have now no concern, but the judgment of Chief .)u>tice Dorion on the .second question is remarkable, aud deserves the closest consideration. The very learned Chief Justice points out that the question was whether the'aj)pellant as cessionnaire from the debtor for the benetit of creditors, was entitled to resist the aeticm in his own name. He was not plaintitt'in the suit, but was sued as ill tendaiit in respect of the trust propel ty in his possession. The Chiof Justice observes : — " But it is contended that the defendant, as " the assignee of Gebhart ..t Co., being a mere agent or attnrney, •• has no (juality and no interest as such to appear in a court of •• justice and urge any objection against the title of tlie respondent. " Xow, is this a 'a-ansaction in which the old rule ' Personne no I'laiile par jirocureur,' emboiiied in Article 10. does ajiply ? We •■ have no hesitation in saying it is not." Ilis Lor.lshi]i, in a most able, elaborate, aud learned judgment, considers the aullioritios, ( 1 ;} i i ■I L4 ■ 1 56 ACTION RIGHT TO HVK. Ijoth French and French-Canadian, that bear on the question, and observes: "As far as we can refer back for i^rccedents in the courts " of Lower Canada wo tind that assignees or trustees vested by " voluntarj' agreements with the estate of insolvent debtors for the " benetit of their creditors have invariably, with one or two oxcep- " tional cases, been admitted to urge before courts of justice the " claims and rights of the estates which they represented as such " assignees or trustees." Dealing with the Canadian authorities, which he describes as an unbroken chain of precedents going as far back as 1811, he adds: — " That the jurisjirudcnco of u country on " any given case, when certain, is not only the best, but the solo " authentic guide of wluit the law is now on the subject." We gather also from his Lordship's judgment that the rule of procedure in ar- ticle 19 is applicable only to a mere agent. Burlofifi V. Moffatt is reported on appeal from the Court of QiuHMi's Bench to the Supreme Court of Canada in the 11th Supreme Court Eeports, p. VC. The judgment of the Supremo Court is the judgment of Mr. Justice Taschereau. lie says that " Nul ne pent plaider par procureur" is, and always has been, the law of Lower Canada. The ease on the merits is so mixed up with the question of jiro- cedure that it is difticult to disentangle them ; l)ut undoubtedly the decision of the court on the technical question of jiroccdure rests on the sup])Oseiicaljle to mere agents or mandataries who are authorized to act for another or others, and who have no e.-^tate or interest in the sidiject of the trusts, Ijut is not applicable to trustees in whom the subject of the trust has been vested in pro])erty and in possession for the benefit of third parties, and who have duties to 2)erform in the protection or realization of the trust estate. The case before ACTIOX 67 lestion, and n the courts !» vested by jtors for the r tAVO cxeep- f juHtice the nted as such I authorities, ji-oino; as far I country on l^ut the sole " We gather cedure in ar- he Court of in the 11th he .Supreme lie says that lias Ijeen, the jstion of pro- loubtedly the [lure rests on for creditors )cureur," and jignecs of an ith either of on them for ion in saying 'ourt in relu- >)de of Civil y they adopt Mojfatt, as •isions of the Bench, pro- mt the deci- ind that the in law, and come to the nilar to and Moffat t V. ielo l!t is ap- rized to act iterest in the ill whom the n possession o perform in ease before ■I KIUIIT TO SVE. their Lordships is so different that oven if the two preceding deci- sions were untouched they would not necessarily affect the decision of their Lordships on the present appeal. This is not a case of a mere voluntary cession to a trustee for the benefit of creditors, i)ut of an as>ignment under the Insolvent Acts to the oflBcial assignee for the purj)ose of realization. That officer could sue and must sue in his own name, though he has no beneficial interest. The present plaintiffs derive their title from him with the assent of all the credi- tors, and they are the assignees of all his rights, so far as he could transfer those rights. In addition, by the composition arrangement entered into under the provisions of the 49th section of tlie Insol- vent Act, and the subsequent acts springing from tluit composition, the estates moveable and immoveable have been vested in the plain- tiffs in possession and in property under a mandate, to preserve, to manage, to realise, to pay off charges, and distribute the surplus. The Irustees, too, are empoAvered to act independently of the credi- tors in performance of their obligations and duties, and are es])e- cialiy authorized to enter into contracts and to enforce them. The act of sale in the present case was regular and lawful. The jilaintifts as trustees, sold property to the defendant, of which they were law- fully possessed and to which they had title. He received that title and th.'it possession from them. They were to receive the purchase money, and he covenanted to pay the balance of that purchase money to them. The action is brought by the trustees on that covenant, and if they cannot enforce it in the present action there is some tlifficulty in defining what the remedy, if any, may be. Their Lordships are oi' opinion that to hold that the present suit could not be maintained, and in the present form, would do con- siderable mischief, and practically defeat those compromises which constantl}- take place in carrying into operation the provisions of the Insolvent Act, and which can rarely be made effective without the introduction of trustees. They do not forget that in ordinaiy trust cases the estate is vested in the person of the trustee to accom- plish the ends and purposes of the trust. In ortler to create an effectual trust the subject is usually vested in the trustee to preserve it, and deal with it for the objects contemplated, and whatever is essential to the purposes of the trust, if not expressed, is -.isually implied: thus, for instance, if trustees are to recover and distrilnitc funds, they may institute and carry on actions, recover payment, and discharge the delitors. Ujion the whole their Lordships are clearly- of opinion that the judgment of the Court of Queen's Bench should be reversed, the judgment of the Superior Court re-instated, and the appeal to the Coiirt of Queen's Bench dismissed with costs, and their lordships humbly advise Her Majesty. The costs of this appeal will be wi HaWKSFORD ET AL, v. GrlFl'ORD paid by the respondent. 31. A jixdgmeut obtaiued iu England is, in a colony, only evidence of a debt. In an action upon such judgment, I Jersey. 1887 Dec. 18, LVI Law Times N. S. 32. i 58 ACTION RIOIIT TO SI'E. other persons cannot be sued jointly, with the debtor to obtain payment of a debt, merely on the allegation that they hold, as trustees, property of which the debtor is the beneficial owner. TlIE •' (tLAMORGANSHIRE " ' 32. In an action for damages brought by the owners of goods shippi.^d, against the owners of the ship, it was held that although the plaintitts had indorsed their bill of lading to a bank to set;ure a loan of money, they retained a sulh- eient interest in the cargo to enable them to maintain the suit. See vo Fabrique. RiftifT or A PAKT^iRR TO SUE ALONE. See PARTNERSHIP ! Usdem verbis. ADMINISTRATOR See Testamentary Executor. ADMISSIONS Spe Principal AND AGENT : A/»imi«ws 0/ ag-ew/. ADVANCES See Bank and Banking, Principal and agent, Testa- mentary Executors. ADVOCATE See Attorney. AFFREIGHTMENT co.xstkl't'tion of chakter-party. The Owners of the "Norway" v, Asiibirner- 33. There was a guarantee, in a charter-party, that the vessel shoiild carry 3U00 tons dead weight upon a draught of 2(! feet of water. The ship could carry the specified qnan- tity in salt water, but could not in Iresh water. The question was : does the guarantee then apply to salt water only, or to fresh Avater as well as salt ^ The Judicial Committee held that it applies to fresh water as well as salt. See Con- tract : CoHStriicUou. 1>AMA«EN F4»R l>EE.\Y IX 8IIIPPIXO. Anmerson v. Owners ok the •• Sa-a Roman" ■' 34. An apprehension of capture sulhcient in ordinary cir- cumstances to aftect the mind of a prudent and courageous master will justify delay in the prosectitiou of a voyage. 1 S. C. China nnd Japan, 1888 March 22, L. R. Xlll Appeal Cases 454. 2 Admiralty, 1865 June 28, III Moore N. S. 245. 3 Admiralty, 18T3 Feb. 4, L. R. V. P. C. 301. t^^ I AFFEEIGHTMENT 59 debtor to ition that tor is the rsiiiRE" ' owners of was held L of hiding led a snlti- intain the IIP : iisdem IT, Testa- lUUKNKU - . that the draught ol led quan- he qui'Stion er only, or niittee held See CoN- Itoman" ' rdinary cir- i'ouraii'eous voyage. 454. damaof.s for delay in siiippixo. Elliott et al. v. Lhrd et al. the " Gresuam " ' 35. The action was to recover damages in the nature of demurrage for the detention of appellants' ship. The charter party contained the condition that the ship was to go to Si/Unet/ " and there load from the factors of the said mer- " chant a full and complete cargo rf coals, taking her turn *' Avith other steamers, but taking precedence of sailing " vessels, and receive prompt despatch in loading and dis- " charging, and to load and discharge always afloat." It was proved that the ship was iinduly detained on account of the deficiency of coals, at the mine. The defendants were held responsible and condemned to pay =11850 damages. Sni RiciiAUD Couch, p. 2(3: — Tlio arrival of the "txrosliatn" havino- been notified to fiie defendants' agents on tiic 19th of July, the plaintiff's were, by the terms of the charter-party, entitled to a full ;'.nd eom])lete cargo of coals on that dtiy. The resjtondent.s' counsel did not disj)ute that when the ship is ready to load the charterers must have a cargo ready, but he contended tiiat they were not bound to do anything till the siiip was in her turn, and it was not shown that she did not begin to load before the 5th of August because the cargo was not ready. The facts, however, are, that the defendants employed the same person, the agent of the coal companies, to load the " (Iresham " as was employed to load the " llibernia."' In consetiuence of the delay in getting the coals down from the mines, there was not a sufiieient suj)])ly at the port, by whieh the loading ot the '' Hibernia" was ilelayed. The detieiency of e(xds, and not the waiting for her turn, was the cause of the '' Gresham " not sooner obtaining her cargo. The defendants undertook that the shiji should receive prompt Wensleyd.vle, [i. 34. — The (juesition lies in tlio narrowoist posKililc C'ompaHfs, and wo have no (l()ul)t hh to the hiw upon tho sulijoot, which in, that for freight, properly so called, that is, for tho carriage, conveyance, and delivery of goods, a .ship-owner is entitled to a lien npon the cargo, unless ho has entered into a contract at variance with that lien; as, for example, in some of the cases which have l)een cited in tho argument, whore tho contract is to pay after tl.o delivery of the cargo, and not at tho time of the delivery of the cargo. KiRcuNER v. Venus ' 38. The bill of lading in this case declared that the goods would be at the .shipper's order or assigns, "he or they paying freight for the goods here as per margin." In the margin it was entered that : — " Freight payable in Liver/tool one mouth after sailing, vessel lost or not lost." The bill of lading passed into the hands of indorsees for value. When the ship came into port, the master was advised by the ship- owner that the sum agreed to be paid as freight had not been paid, and delivery of the goods was refused to the assignees of the bill of lading unless freight was paid, claiming a lien on the goods for the unpaid freight. The Judicial Committee, reversing the judgment of the court below, held that the amount agreed to be paid by the shippers at the port of shipment, one month after sailing of a ship, did not acquire the legal incident of freight, though described under that name in the bill of lading, it being merely money to be paid for taking goods on board and undertaking to carry, and not for carrying the goods ; and that there is, in such case, no right of lien on the goods by the ship-owner in respect of such sum of money being unpaid. 39. That -where a bill of lading provides that the freight is payable to a third party, and not to the ship-owner, payment for freight to the master or ship-owner, would be no answer to an action in England in the name of the ship-owner for non payment of freight. I New South Wales, 1859 Feb. 5, XllMoore 361. AFFJJKKHITMENT 61 )wuer had 'd was not y the cou- iu lien of reference /. Venus ' d that the ' he or they L," In the in Lii'er/)0()l The bill of ue. When by the ship- it had not Lsed to the was paid, •ht. aent of the be paid by fter sailing' of freight, f lading, it on board the goods ; n the goods oney being \e freight is er, payment e no ansAver -owner for LIK>' ON CARGO FOIl FRKIOHT. Lord Kinosdown, p. 3!>0. — Tho right of lien may arise eitlier by iiui)lication of law, o>- Jjy express eoiitract between tlic piirtie-. Freight is the reward payable to the carrier for tlie siife carriage and delivery of goods. It is payable only on safe carriage and delivery ; if the goods are lost un the voyage, nothing is payable ; On the other hand, if the goods are aafely carried, the ma.-UT of the ship has a lien on the goods for the amount of the freiglil due for such carriage, and cannot be comiielled to part with the gootls till such freight be ])aid. These incidents to freight exist by rule of law, without reference to uny bill of lading, or other written contract between the parties. But a sum of money payable before tlie arrival of the ship at her port of discharge, and payable by the shippers of the goods at tlm t)ort of Hhi])mcnt, does not acquire the legal character of freight, )ecause it is described under that name in a bill of lading, nor does it acfpiire the legal incidents of freight. It is, in ert'ect, money to be paid for taking the goods on boaid and undertaking to carry, and for carrying them. This was, in substance, tlecided by the cases of Blakey \». Dixon, 2 Bos. & Pul. 321 ; and Andrew v. Moorhouse, 5 Taunt. 435. In the former case the declaration alleged that in consideration of the plaintitf having taken on board his siiip certain goods to be carried to Surinam, the defendant undertook to pay him the money due to him for freight and carriage of the same on the delivery of the bill of lading. It was held by the court that the declaration was bad on demurrer, on the ground that it claimed money due tor freight, whereas nothing could be due for Ireight except tor actual carriage of the goods. In the case of Andrew vs. Moorhouse. where the shipper of goods had the option either of 2)aying freight on the delivery of the goods at the part of discharge, or of paying it at a less rate at the port of shipment on the sailing of the ship, and ho elected to pay sr^ the port of shipment, he was held not be relieved from his obligation to make the iiayment, because the gooils were lost on the voyage, and, theretbre, no freight, in the proper sense of the cxpi'ession, ever became duo. No doubt parties who have superseded by a special contract the rights and obligations which the law attaches to freight in its legal sense may, if the}^ think tit, create a lien on the goods for the per- formance of the agreement into which they have entered, and they may do this either by express comlitions contained in the contract itself, or by agreeing that in case of failure of performance of that agreement, the right of lien for what is due sliall subsist as if there had been an agreement for freight. Eat in such case the right of lien depends entirely on the agreement, and if the parties have not, in fact, made such a contract it is very ditfieult to understand upon what grounds it can be implied, or why, upon failure of perfor- mance of the agreement which they have made, the law is to subs- titute for it another and very different contract which they have not made. To use the language of Lord ELlenborough in Stj Vinson xti. Blackelock (l Man & lisiiiny such a lien arc very serious. If tlie sliipowner lias a lien on the gooils, unless the money agreed to lie i»ai(i at the jiort of shipment has actually been paid, what, on arriving at the port of discharge, is the nuister to do ? In many cases, jirolialily in most cases, he can luive no moans of knowing whether the payment has or has not been made; the fact itsell luay be a matter of uncertainty, dejiending on the state of dis])uted accounts between the shipowner and the mercl;ant; or the money, though not ])aid at the day, nuiy have been subsequent!}' paid; or securities may have been taken, or other arrangements matle for giving time. Js the master to withhold the goods I'rom the consi- gnee till by communication with the port of shipment all these matters have been cleared u])? This communication nuiy occup}- weeks, or even months, and the ])rotit or loss on the adventure, and even the well-ljeing or ruin ot the consignee, may ilepend, from the state of the markets, on the delivery- of the goods a day or two sooner or later. Take, again, the case of an indoi'semcnt of a bill of lading. We know how largely these instruments are used for the jjurposc of raising money on the credit of the goods consignetl by them. If an indorsee on looking at the bill sees that the goods are subject to the payment of freight, he calculates the value of the goods, and mea- sures his own advances accordingly. So, if he knows that the gooils are not subject to freight, and that the bill of lading is what is termed "a clean bill,'' he is ecjually relieved from embarrassment; but how can he make advances with any safety, if it be left in doubt on the bill of lading whether the goods are to be liable to charge for carriage or not ; if the lial.iility of the goods to the i3a3-ment of freight depends, not on the agreement appearing on the bill of lad- ing, but on the question whether that agreement has or not been actually performed, and if the title to receive tho goods is liable to be suspended till these facts have been ascertained ? P. 307. — Having again considered tho law laid down in ^ow vs. Kirchner, with the most earnest desire to correct our view of it, if we could discover it to be erroneous, we must say that, upon prin- ciple, it appears to us to be right, and that wo are bound to abide by it. neoot'iability of bill, of lading. Pease v. Gloahec ' 40. A bill of lading for the delivery of goods to order aud assigu.s, is a uegotiable iustrumeut, which by iudorsemeut aud delivery passes the property iu the goods to the indor- see, subject only to the right of the uupaid vendor to stop them in iransitu. 41. The vendor, however, may be deprived of this right, 1 Admiralty, 1866 June 23, III Moore N. S. 556. ■ AFFJJHIGIITMKNT 68 •owrt out of I'ly si-rioiis. noy iigreetl kl,\vhut, on ' 111 many Df knowiiiy; it itsoh limy ol' dis])iitod the nioiiey, tly paid; or ts jnado for 11 the oonsi- ut all tlu'so may occupy vciitui'o, and ud, from the day or two lading. Wo ; purpose of them. If an ;ulijeet to the ids, and mea- liat the goods !• is what is Ijarrassment ; left in doubt charge for payment of bill of lad- or not been is liable to :n in Hmo vs. view of it, if , upon prin- md to abide (il.OAHEC ' ) order aud idorsemeut I the iudor- dor to stop this rift-ht, NEClOI-I.tniMTY OF ItlM. OF l,AniW«. by the endorsement of the bill by th(! endorsee lor A'akiable consideration, although the ffoods are not paid for ; even if bills have l)een given which are certain to lie dishonoured. provided the indorsee for value has acted bond fide aud without noiice. Thk '• Fkkkiio.m " ' 42. The ("onsignee of goods being at the same time endor- see of a liill of lading, is vested -with all the rights of suit, and he is subject to the same lial>ilities in respect of such goods, as if the contract in the bill of lading had ))een made with himself The right of suing upon a breach of contract, under a l)ill of lading, follows the property in the goods therein specili<'d, that is, the legal title to the goods as utt'ainst the indorsee. IIeNDEHSO.V v. TlIK CiiMI'TiiIH d'Kscomi'TE de P.\his ^ 48. A Bill of lading in which the words " or order or assigns" are omitted, is not a negotiable instrument. The ciiAUTEiiEi) JJank ok India. Aistuai.i.v and Chixa V. JIeniieusox iV Al.. ' 44. A bill of lading was endorsed and transferred in settle- ment of anterior claims to the appellants, under threats of immediate legal proceedings. The respondent was the original vendor of the goods, and it had been agreed that the buyer sluuld remit him the proceeds of the sale of the goods described iu the bill ; but his claim was only in equity. The Privy Council upheld the right of the appellants against the equity of the respondent, the consideration given for the endorsation of the bill Avas established, aud the threats of legal proceding were not illegal. SCBNTITVTION OF PARTIES) ISf CHARTER-PARTY. Hee CONTRACT : iisdem verbis. wiiex freight in dde. Cleary v. McAnprew. The caroo ex " Ctalacs " * 45. The freight is due to the master of a vessel, when delay is occasioned iu carrying the cargo to its destination, by reason of the arrest of the vessel by'order of the Court of Admiralty, at the instance of a bond-holder ; the master then 1 Aamiinlty, 1871 Feb. 10, VIII Moore N. S., 20. 2 Hong Kong, 1873 July 16, L. R V P. C. 253. 3 Hong Kong, 1874 May o, XXX Law Times 578. 4 Admiialty. 18ii3 July 27, II Moore N. S. 229. «4 AKFl{i:i(iHT.MKM' rocDVcr liis iVoi^lit iflui lias oilhor carrii'd liis car^o tion, or lias Wi't'ii provonU'd from socarn-iiif;' it liy tlie act ordi'liiult oitlio owiKT ; anil if by thi' oet'iinviiee ul an accident on the voyago Wlir.lV FKKIOIIT IN DVi:. stiiuds ill tho Hiune situation us if ho had been prevt'utt'd by the dol'ault of the owner of the i-artyo from conipU'tiny the voyage. L(iiu> KiNdHDoWN, n. Ii2!l: — Tlio rule of law is very dear, and wan not uees' boats, consignees laster's pre- 3 cargo, the lien on the the cargo le qxiantity ivery of the EWSUNS. ■ le arrival of rule, is only (ling; and it ivery, if the 1)0 delivered judguient of .1., in Dakin to freight is the freight tbrnu'ii ; and arned by the wirriago and arrival of the goods, ready to he deliver».«l to the mer- chant." Arrival, of course, means '' at tlio dowliued j)ort," as tha next passage of the Judgment explains. AGENCY See PUINCIPAL AND AOENT. AGREEMENT See Contract. ALLOWANCE See Alimentary allowance, Separation : allowance to wife. ALIEN I.EGAI. NTATITN OF ALIENS I.\ FKAWf'E. DiiNKOAM V. DoNKdAM ' 48. The civil status of aliens in France Avith regard to the right of succession avus stated as follows : Sir Lancelot Shauwell, p. 82. — If a foreigner died, havinjf lands in France, his land would lielong f) the king, unless he had a cliild or other descendants horn in Frunco ; if lie left several i'hildren, some horn in France, others not, ^hose wiio were hoi-n in France would exclude the king from taldng ; and flic conseiiucneo Avas, that as he was exchuled, all tiie childi'cn would take in the same manner as if all hud been horn in France; and if the foreigner left a son i)()rn out of France, who had children horn in Franco, in that case the grand children woukl inherit to the grandfather to the exchision of their father. To support the above remarks, the following authorities wore cited: Dtnisart, vol. II, tit. Aubains, p. 57l>, 572, 5fSU ; Dictionnaire des Bomaines, p. 141; Traite du Domaine, Lefebvre, p. 127, note 6; Poullain du Fare, Principes du Droit frangnis., liv. I, cap. 15, No 9. See also Prerogative op the crown. Droit d'Aubaine. ALIMENTARY ALLOWANCE CANNOT ItE (:O.WPE!VNATED. ilUIIl V. .UlTIIl ^ 49. An alimentary allowance given in a will cannot be the subject of compensation, and this rule applies even where the donee of the allowance is an executor and trustee of the estate and is indebted to the estate. 50. Aliments given by laAV or by deed in-a insaisissables ; therefore a clause of a will declaring alimenlx insaisissables is legal. 1 Lower Canada, 1835 Feb. 2, III. Knapp. U3. 2 Quebec, 18TJ Dec. 9, L. R. V. P. C. M. ...i,e out of the jiarti- cular rule. Sir IJichard Baggallay relied, first, (jn the direction in the will that the trustees should reduce the resitlue into possession without delay. lie did not go so far as to say that this clause made the realization of the whole residue a condition precetlent to tlie distribution of the annual income of the resiilue. But he insisted that it exjjressly im]jose<.l upon the plaintiff, as trustee, the duty of brin.'jing the delil which he owed into the common fund, and that his lailure to do this suspemied his right to receive share of the fund. Another argument was founded on the English doctrine, that a debt due from an executor is assets in his hands. This doctrine, however, if it obtains in Lower Canada, where the functions and po\vers of an executor are by no means the same as those of an English cxecuto]', seems to their Lordships to have little application to tlie present case, in which, ex concessis, the debt continues to be outstanding, the larger portion of it being the subject of a special contract between the debtor and his co-trustees. In truth the argu- mc.it for tlie appellants on this part of the case seems to resolve itself into this: that the jilaintitf being a trustee and executor, his. claim has lost the immunity from compensation which by the general law it would pos.sess, by reason of the rule (assumed to exist in Lower Canada as in England) that a trustee or executor cannot take anything out (jf the estate whilst he continues to bo imlebted to it. But for this exception to the general rule of the law of Lower Canada, no autliorit}- has been adduced. That law does not recog- nize thedistinction between law and equity which obtains here, it has now been reduced to a code. The articles of the code expressly state: lirst. that when two persons are mutually debtor and cre- ditor of each other, both debts are as a general rule exlinguisheil by coni])cnsation ; and, secondly, that com])ensation does not take ])lace in the case of a debt which has for object an alimentary provision not lialile to seizure. The detendants by their plea invoke the first article, which is wide enough to embrace every ca,se of set-off. whether legal or equitable. Aiul their Lordships cannot see that, by any other article of this code, or otherwise, the Courts in CuTiada have power u))on some supposed ground of equity to engraft an ex- ce])ti()n ujinii the exception established by the sec(;nd article. It is sugii'csted in the apj)ellants' factum tiled in the Court of Queoii's Bench, that the respondent, being a trustee, might, if his ALIilENTAEY ALLOWANCE 6? first plea is. iiikIm, bo the venue of the iitary allow- \n bl(j of Ijeing That such a the trustees lot a trustee, It is how- iititf, and the of tlie i)arti- (lireetion in o possession i clause made edent to the it he insisted L', the duty of ind, and that ■0 of the fund, ctrine, that a rhis docirine, ;'unctions and s those of an tie application ptinues to be t of a special •uth the argu- nis to resolve executor, his by the general to exist in )r cannot take idebted to it. i\v of Lower not recog- lus here. It )de expressly tor and ere- linguishcd by lol take ])lace iry provision voke the first ■e of set-otf, t see that, by in Canada ngraft an ex- rticle. the Court of might, if his CAXXOT BE COMPEXSATEO. argument lie well founded, continue to receive his alimentary allow- ance, although he had misappropriated to a large extent the trust fund. It is not necessar\- to consider what would happen in such ii case. It is sufficient to say that the debt by which it is now sought to compensate the alimentary provision, does not arise out of the misapproj)riation of trust moneys; but out of transactions with the testator in his lifetime Again, it is stated in the first plea that the presumable intention, of the testator was only to exempt the alimentary provision made to his children, from transfer and assignmen" to strangers, ami not to free it from any charge or lien which the executors might have on it for indebtedness to the estate. And arguments founded on this presumed intention have lieen used both iji the Court of Queen'.'* JJciich and here at the bar. Their Lordships, however, concur with the learned judges of the Court of Queen's Bench in thinking that no grounds I'or imjMiting to the testator an intention to vary the general law as to alimentary provisions are to be found in his will. The sciieme of his will is this: ly tlie exercise of the testamentary- power he suspended the vesting of the shares of his heirs in the corpus of his estate, or matlo thiMU incapal)le of being divested ; and so far deprived his children of that which the law would have given them if he had died intestate. As a compensation for this ho gave tliem, until the period of final divisiun should arrive, this alimen- tary provision, with the benefit of that protection which the law of Canada throws over such provisions. There are no words from which it can bo inferred that he intended to diminish that pro- tection. Tlie fact that the respondent and others of his sons were indebted to him, or generally embarrassed when he made his will, or afterwards became so, tends, in their Lordships' opinion, rather to raise than to rebut the presumption that he meant this alimentary provision to bo free from all claim to compensation; and to insure to them the means of support whilst they were kept out of their inheritance. AMIABLES COMPOSITEURS See Arbitrator. ANNUITY voxfvsiox by habriaoe. Fitzgerald v. Fitzgerald ' 51. A man agreed to pay a womau an aniiuity for her life, payable half yearly, for her separate use, aud free from auticipatiou. Afterwards that man married the annuit- ant, and died leaving her surviving. It ^vas held that the annuity was not exliuguished, buf only suspended by the marriage, aud that the widow had the right to recover 1 Xaw South Wales, 1S(5S June 16, V Moore N. S. 180. ANNUITY C4»XFI;NI0V by MARni.lf.lK. arrears accrued subsequent to the death of her husband from the latter' s representatives oiit of the estate. APPEAL. APPKAI.Ani.K VALUE. f'l'VlLLIER V. AyLWIN ' 52. An act having been passed by the colonial Legislature of Lower Canada, limiting the right of appeal to causes where the sum in dispute was not less than £iiOO sterling, a petition for leave to appeal, in a cause where the sum was ■of less amount, could not be received by the king, in coun- cil, although there was a special saving in the colonial act of the rights and prerogatives of the Crown. tSiR .Idii.v Leach, p. 78; — It is not necessary to hear counsel on the otlier side. The k\n;j; has no power to tlojjrive tlie subject of any of his rights ; but the king, acting with the other branches of the Legislatures, or one of the branches of the Legislatures, lias the power ofdejiriving any of liis sul)jects, in any of the countries under his doniiniou, of any of his rights. This petition must therefore be dismissed. NaTIIOOBHOY J?AMI)AS.S v. MOOLJEE Madowdass. - 53. In Bombay, the law allows an appeal from interlocu- tory judgments, but does not permit one from the finding of a jury in the court of equity. In re Samiel Cambriikje. ' 54. When there is an intermediate court of appeal, and the appealable value is under the amount fixed l)y the law of the colony, leave of appeal to the Privy Couni'il was refused, but as the case was one of considerable hardship, the committee advised the allowance of the appeal by the intermediate court of appeal. CVmilleri v. Fleri. * 55. In the Island of Malta appeals are allowed by law to the Privy Council, only from judgment for or in respert of any sum or matter at issue above the amount or value of iJLOOO sterling, or where the judgment involves, directly or indirectly, any question respcrtiug property, or any civil rights amounting to, or of the value of ilLOOO sterling. On special application leave to appeal was granted from a decree of the court below directing the children to be re- ^■: ii 1 Lower Canada, 1832 Xov. 20, II Knapp 72. 2 Bombay, 1840 Feb. 7, III Moore 87. :! I'.iiico Edward Island, 18-11 Feb. 11, III Moore 175. 4 Malta, 1845 June 20, V Moore, 161. APPEAL 6» husband Aylwin ' L-egislature to causes sterling, le sum was r, in coun- ionial act of hear connscl ;he subjtH't of brandies of ures, has the mtrios untlcr thcrt'f'iro be ni)wnAS!<. * m interlocu- tht' liuding VMlilUUIiK. ' appeal, and ixed by the L'ouucii was hardship, leal by the K1.KKI. * •d by law to 11 respect of or value of directly or or any civil terling. iuted from a •en to be re- APPKALABI.K VAME. moved from the giiordiaiisliip of their mother, civil rights being involved. UbUOOLAU v. MOOTICIIC.NI). ' 56. Two suits were brought for sums due on the same account, each of which was under jt;.")Ui) ; it wa.-^ held that such suits could not b" consolidated for the purpose of appeal, though the < rigiurJ severam-e of them was contrary to the plaiutilfs iucl-'w , ons, and the amount of I >oth to- gether exceeding the appealable value. Tlie court below had no right to consolidate su<'h cases for the purpose of an appeal, even if they constituted one and the same cause. Pat.velli v. IIkudi.k. ^ 57. Leave to appeal was granted from an order of the Grovernor at Sierra Leone, refusing a new trial. althou v. Barrett. ' 58. Although ihe subject in dispute was under the ap- pealable value prescribed by the lloyal Instructions regulat- ing appeals from Jamaira, yet the Judicial Committee, in vicAV of the public importance of the question at i^sue, allowed an apueal. C'ASTRtdlE V. JiUTTKUEO. * 59. Their Lordships, ixnder the circumstances of the case, granted leavi' to appeal. th(nTens of St. Gehroe v. May.* 60. Leave of appeal was allowed by the Judicial Commit- tee, the question being of importance" and the sum involved uncertain in value. 1 I -Moore Irniian appual cases 3<;,3. 2 Siena Leone, 18.")L' July 7, VIII Moore 41. 3 Jamaica. 1850 Feb. 7, IX Moore i'yti. 4 .Malta, 1855 .Nov. 27, X .Moore lu.i. t) .laniaii'a, 18.")8 Dec. 1, XII M.)ore 282. TO APPEAL APPEASABLE VALVE. BOSWEI-L V. KiLIiOllN. ' 01. The appealable value fixed by statute iu Lower Canada is above £oi)() sterliug. In an action for uou-pertbrmaiuto of a coutract a verdict was given for ilOOO currency, that is less thau .£500 sterling, and the court of appeal refused leave to appeal to England ou the groitud that the sum was under the appealable value. Upou special petition to Her Majesty iu Council, leave to appeal was granted, because interest ran with the judgment and that fact, by the law of Canada, would bring the subject- matter within the appealable value ; and also because im- portant questions of mercantile law were raised, and an action of a similar nature was still pending, the transaction being a continuing contract. Mlsslmat Amekxa Kuatoor v. Rauhabenod Misser. " 62. In ascertaining the appealable value, the whole matter in dispute should be considered, and not only a fractional part of it. EoGEHs v. IJajendro. '^ 63. This was an action of damages, the amount granted by the court, at Calcutta, was under the appealable value prescribed by the charter of the t'ourt. But as an important point of law was involved, and special leave to appeal was, upon petition, granted. (toohoimehsai) Khoond v. Juooutcuunuer. * 64. The proper mode of estimating appealable value in appeal from the Sudder court, in Calcutta, is to add to the principal the interest given by the decree, as the question to be tried upon the appeal must be whether the decree is or is not right, that is to say whether the decree has or has not properly ordered the payment of the capital and interest. The Quebec Assurance Co. v. Axberso.--. '" 65. Leave of appeal was granted on the ground that the interests and costs granted by the court below exceeded the sum required by the statute for an appeal in Englai'd. But, upon petition by the respondent, showing that the cal- culation as to value was erroneous the appeal was dismissed. 1 Lower Oanad.'i, 1S59 Feb. 1, XH Moore 467. 2 Calcutta, 1S59 Feb. 1, X'll Moore 470, 3 Calcutta, ISOO June 28, XIII Moo'c 200. 4 Calcutta, IRGO June 15, XIII Moore 472. Tlie .huliciiil Comuiittie cave a similar judgment In another Indian cnBO, the same day. ^ee XIII Muore 469. 5 Lower Canada, )8Gl June 14, XIIl Moore 477. t 5 JLBOllN. ' rer Canada )rmaiu:e of that is loss .ised leave was under LI, leave to 1 judgment he subject- teeause im- id, aiul an transaction MiSSER. ^ liole matter a, fractional \JKN))Rn. ■' lut granted lable vahie I important ippeal was, JHL'NDER. * e value in add to the le question le decree is roe has or ;apital and N])ERS()>'. ' nd that the exceeded Englai'd. mat the cal- dismissed. APPEAL (1 niiiittce rive a uore 469. APPEA TABLE VALVE. GO. A party applying e.r parte and ol)taiuini>- an order su<'h as has been obtained in this case, takes it subject to the other side making application for its discharge. Macfarlane v. Leclaihe. ' 67. The amount claimed by the action in this caiise was less than jGoOO. In determining the question of the value of the subject matter in dispute, upon which the right of appeal depended, the proper course is to look at the judgment as to the extent that it affected the interest of the party prejudiced by it, and seeking to relieve himself from it by appeal. In this case, the appellant was a tiers-snisi whose declaration was contested, and upon the contestation he was found debtor to the ex- tent of 411,642 ; now he -wants to be relieved of this condem- nation ; the amount in dispute exceeds the appealable value, and he has a right to be heard. Her Majesty in Council IS not precluded from entertaining a petition to rescind leave to appeal on the ground of Avant of jurisdiction, by the fact that leave to appeal was granted by a colonial court, iiuder the authority of a colonial statute, as the construction put by the colonial court upon that act can be reviewed by the Judicial Committee. MARfiis v. Allaire. ' 68. The amount mentioned in the declaration was under c£oOO sterling, but several other actions had been brought against the same party, founded on the same transaction, which would be practically decided by the judgment in this ca.s(>. Upon special application for leave to appeal, although the cause of action did not fall within the meaning of the saving clause of the statute : " other matters or thinifb^ Avhere " the rights in future may be bound," 'still, under the cir- cumstances, leave was granted, subject to a petition being presented by the respondent, upoii the competency of the appeal, upon which it might be dismissed. Lniu) CiiELMSEORi), p. 1!)2 : — This petition fur leave to appeal (lopfuds u])(Mi tlie same Act of the rrovince of Lower Canada a.s the Ci\M^ oi Macfarlane y. Ledaire from the court oi' (Queen's Bench at Montreal, which tlicir Lordships have just disposed of (;{4 (tco. IIL cap. (i), hut the (pu'stions raised in the two cases are entirely dif- terent. Upon the present petition it is not denied that the niatter 1 Lower Caiiadn, 18G2 Feb. R, XV Moore 181. 2 Lower Ciniuln, 1902 Feb. in, X\' Moore 189. m APPEAL APPEALABLK VAMTE. ill (lisputo is not of the valiu' of £500 sterlin,!;, but tlio petitioner prays that lie may have louve to appeal i^ranted to liiiu upon the »])eeial circiinistanoes of his case. Tiie sum aetiially recovered in the artion against tiie petitioner is oiily£l()5 3s. 7il. with interest at 4j ]ier cent.. Init lie states thai in conseijuence of his iiaviiiy lieen heiil to he liahle to the phiiiiliff in that actii>n as a meniher of an incorjiorated society, carryinii' on a ljanltitioii must be in once dismissed ; but u]ion turning to the rejiort ol tiie case, tlieir Lordships are not satistied that the subject received that full and de- liberate consideration which the great importance of it demanded. The report of the judgment of the Master of the JioUsis eontaiiied in a few lines, and he does not a|)j)ear to have directly adverted to the etfei't of the ]iroviso c(jntained in tiie 40tli secticjii of the Act on the jii-ei'ogative of the ('rown. Their Lordslii]is must not he considered as intiniating any ojiinion whether this decision can lie sustained or not, but they desire not to be ]irecliided by it from a further consideration of the sei'ious and iinportant (juestion wliich it involves. The petitioner iiiust under- stand that tlie |)rayer of his jietition will be granted, init at the risk of a petition being hereafter presented from the opposite jiarty. ujion whicli his appeal may lie dismissed as incomjietent. Their Lordships will, therefore, humbly report to Jler Majesty that leave ouglit to be granted to the petitioner to enter and ]irose- APPEAL 78 Hi petitioner iiii upon tlio reeoveretl in li interest iit iiiivini;' lieen ien)ber ot'iin tor a loan or )!;• conipiiny, tions ii le serious and nust under- lut at the risk i])osite party, nt. jler Mujenty er and prose- APPEAI-AIJI.K VAMJE. cute his api>eal upon lodi^in;;- a deposit of £300 in the j'eiiiistry of of the I'rivy (Jouneil as seeurity for the eosts of the respondent. Mi;tijs.\wny PAdAVERA Yettap V Naiker v. Ventatasmara. ' 69. Special leave to appeal granted, although the aitiount decreed ^vns much uuder the appealable value, the subject matter at issue beiug in excess of it, and the original demand having been necessarily limited by the jurisdiction of the court -where the suit originated. DooROA Doss Chowdrv v. Ramanautii ('iiownRv. '' YO. Costs cannot be added to the jirincipal sum recovered in estimating the appealable value. Ko KnixE V. Snaih)e\. •' 71. Special leaA'e to appeal AVas granted, although the amount involved in the action was under the appealable value. Ther(! Avas an important question of la^v raised, and eleven other actions brought involvec^ the same ques- tion of laAV, and had been directed by an order of *:he cotirt lieloAV to be heard upon the same CA'idence and con- cluded by the same judgment ; and the aggregate' amount involved in the actions was more thati the appealable value. Brown v. McLAroiiAX. * 72. S]-)t^(^ial leaA^e to appeal granted, although the amount involved Avas under the appealable value, on the ground that the question involved the construction of a colonial Act AA'-hicii iitt'ecit'd the interest of a laro-e (-lass in the colony for Avhiih the Act Avas passed. In granting the special leave, the JudicitJ Committee limited the appe.-J to the construc- tion of the colonial Act. SAi;\-At;KAi A'. (iAi rmm. ^ 7;3. The appealable value in Quelx-,- is .foOO sterling, or Avheii t lie issue is concerniiiff "titles to land or tenements, anutial rents, or other maters in Avhich the rights in future of parties may be affected." 74. An annual r<'nt of |11.2H Avas sold for |4o() pavable in ten equal yearly instalments, and the land Avas hvpothecated to secure the amount. 1 Mailfiis, IRi!.") .V(iv. 21, L. R. I 1'. C 1. 2 Moore's IpulUn nppcal cnse-i 2ii2. ■■! li-"iiiirhec. 1S74 May ,'•>, L, R. V. l\ C, 4I14. T4 APPKAL AI>I>KAI.Ani.K VAMIE. In II suit to enforce payment of certain instalments, leave to appeal ^vns granted ])y the court ol appeal in the colony to the I'rivy Council, hut their Lordships dismissed the appeal as not falling within the aljoA'e description. Sir James W. Cc.villk, j). VM : — Jt is di'sinilile to state hliortly Iiow tliis (piostion arises, ll ajipcars tiiat .Martel was indebtetl to tlie insolvent Scnecal in a certain sum of m(/ney, tor wliieli a rent charge iiad been eoninuUeil, Tliat sum of money was payable by instalments, ami it was also secured b}- hypothecation upon the land upon which the rent had originally lieen charged. The insolvent, a considerable time before his insolvency, assigned this, with other choses in action, to Louis Gauthier, the respontlent, for value; but notice of the assignment was not given to JMartel until Senecal was in insolvent circumstances. Louis Gauthier sued Martel, the ori- ginal debtoi', for certain instalments of that sum ; the whole value of the particular debt so assigned being considerably below the ap- pealable amount of £5t>0. In that state of things the appellant, wiio was the general assignee of the insolvent estate of Senecal, inter- vened, and there remained no (piestion as t;> the liability of the ori- ginal debtor; but the simi)le (piestion tried in the suit, and which is uow l)rought before their Lordships on appeal, was whether the particular assignee coukl claim the sum sued for, or whether it iiad passed by the general assignment of the insolvent's ett'eets to his general assignee. The solution of that question, of course, depemled upon the further (piestion, whether "signification" or notice was necessary to complete the title of the particular assignee, and whether that notice hail been given in proper time. A preliminary objection is now taken to the hearing of this appeal on the ground tliat it was not c.(jmpetent to the judges of the Court of Queen's Eench in Canada to allow such an appeal ; and insujjport of that contention we are referred to article 1178 of the Canadian Code of Procedure, which limits the cases in which an appeal lies as of right to Her Majesty in Council from tinal judgments rendered in appeal or error by the Court (jf (Queen's Bench. That article pro- vides that such an appeal will lie, tirst, "where the matter in dis- '' pute relates to any fee of ottice, duty, rents, revenue, or any sum '■ of money })ayable to Her Majesty; secondly, 'in cases concerning ■ titles to lands or tenements, annual rents, or other matters in '• which the rights in future of parties may be ait'ecteil ; ' thiriUy, ' in ■■ all other cases wherein the matter in (.lispute exceeils the sum or " value of £500 sterling.' " it is clear that the case falls neither within the tirst nor the third of these clauses. The only clause within which it is sought to bring it is the second. Jiut their Lord- ships arc of ojjinion that it does not really fall even within that clause. It has been argued, that, inasmuch as the particular debt which was in (piestion in this suit was ])ayable by instalments, tiie title to it was a matter in which the rights in future of the ])arties might be attected. ]3ut their Lordships do not thinlv that that is the true construction of the clause. The matter in (piestion was the whole d(;bt; and their Lordships tliink that the mere circumstuncc APPEAL T6 APPEALABLE VAI.l'E. neuts, leave 11 the oolouy d the appeal i statu I'liortly 118 indobti'il to wliic'li a rent an payablo by ion upon the Tlic insolvent, is, Avitii otlier or value ; but il Seneeal was irtel, the ori- le whole value Ijelow the n\>- ippellant, who SencJeal, inter- lity of the ori- , and whieh is ; whether the vhether it had s etlects to his irse. depended or notiee was assignee, and of this appeal s of the Court ml in support the Canatlian appeal lies as ts rendered in at artiele pro- matter in dis- e, or any sum es eoneerning er matters in thirdly, ' in ds the sum or e falls neither he only clause ut their Lord- .■n within that rtieular debt italments, the )f the i)arties lat that is the stion was the circumstanee of the debt being payable by instalments would not make the ease appealable to Her Majesty in Council if it were not otherwise appeal- able. It was turther suggested the same question might arise iu respect of the other assets eomj)rised in the assignment to (xauthier, and the decision in this case would govern the rights of the parties as to all those assets. But their Lordships have not the means of knowing whether the title to those otlier choses in action would stand upon jirecisely the same ground as the title to that in question in this suit. Some of them may have been realised, and as to some ot them notice nuiy have been given long before the insolvency. Their Lordships cannot assume that the facts touching the^e other debts were betore the judges in Canada ; and, even if they were, their Lordships, considering the mode in which this litigation arose, in a suit brought by the particular assignc to realise a small sum as against one of those debtors, and not in a suit brought by the general assignee to impeach the whole transaction, are not satistied that it was a case in whi y /^ Photographic Sciences Corporation 23 WEST MAIN STREIT WEBSTER, N.Y. MS80 (716)872-4503 78 APPKAI. i !l <'0.\-NOI.IDATIO!tf OF APPRALM. lIlDDINOII V. DeNVSSE.V ' 77. Their Lordships will cousolidat*' appeals at any stage, it' it appears t'onveiiieiit that they should he heard together. All appeal was struck out of the hoard and ordered to be eonsolidated Avith two other ai>p«'als arising out ol' the same will, hut in a suit whii-h had not l)een instituted till a year after the first appeal had b(>en admitted. CROMN .%PPKAI.«. XoiKA XvilAIX.S JJao V. llCSSKK IM.NT IJllAW ' 78. A cross ajjpeal Avas allowed from part of a decree of the Sut/der Court in the North Wesiern Provinces, although the Respondents had not applied in hidin for leave to appeal within the proper time : the Kespondents being mistaken in the practice of the Judicial Committee upon ai-ross appeal. This cross apjM'al Avas ordered to be prosecuted and heard at the same time as th»' principal appeal upon one printed case. In the event of the i)rincipal appeal b»>ing dismissed for Avaut of prosecution, liberty Avas reserved to the respon- dents to prosecute the cross appeal as a separate appeal. DIN.1IIMHAL rOR X0X-PK0NE«'rT10W. Li.NDo v. TiiK Kino ' 79. After a delay of six years the Judit-ial Committee refused to grant leave to prosecute an appeal, and dismissed it for non prosecution, although the delay arose from cir- tninistauces over Avhich the appellant sAA'ore that he had no control. Their Lordships held the delay Avas uureasouable ; it Avas quite impossible to grant the motion. McKellar v. Wallace & ai,. • 80. Leave to appeal on an ex /itirlr application Avas, under special circumstances, granted iipon terms of the appellant prosecuting the appeal and giving security for .£500. No se- curity having been given and nothing hiiviug been done Avith- iu tAvelve mouths to prosecute the appeal, the Ilespoudeuts, on being served Avith the order admitting the appeal, fyled a counter petition to revoke the leave granted. The Judicial Committee, under the circumstances, there having been great delay, made a peremptory order putting the appellant upon terms of lodging his petition of appeal 1 Ouod Hope, 1886 Xov. 20, L. R. XII Appeal Cnscs 107. 2 North Wesiern Provinces, 1886 Nov. 29, XI Moore 30. 3 Sierra Leone, 1836 May 30, I Moore 3. 4 Calcutta. 1853 June 20, VIII Moore 378. APPKAL 79 DINMIMNAl. FOR X09r' six weeks, or the appeal to stand dismissed, and eiilaraft'd the amouut of the ret'oirui/aiu'e to £1,000, to cover the expeiises oi'casioiied by the proceedings in the Master's office, reserving the costs of the application to revoke the leave to appeal, to the hearing. Smith v. Crksswkli, ' 81. The appellant had obtained leave from the court below to appeal to the Privy Council, but took no steps to protxire a transcript of the record to be sent and lodged at the Privy Council office for three years, or any other step. On respondent's petition the appeal was dismissed with costs. FALNE OK IXf'OMPKTKKT. f";A.sT India ("n. v. Ai.hy ^ 82. Where the i-ourt below has granted leave to appeal, in a case in which they Avere not authorized by their charter to do so, it is not sufHcient for the appellant to present the common petition of appeal to the King in Council. A special application for leave to appeal must lie made to the King in Council under such c-ircumstant es. Ex parte Amks ' 88. Leave was granted on an ex parte application to appeal from a criminal proceeding, in Jersey, rescinded on special application of the Attorney G-eneral of the Island, the court being of opinion that the original leave ought not to have been given. SlIIRE V. SlIIIlE * 84. If an appeal is incompetent, the Respondent should move on petition to dismiss the same on such ground, and not wait till the hearing to object to its competency. TuoNsoN V. Dent * 85. Same decision where there are fatal objections to the right of appeal. Wilson v. Cai-lf.nder. ' 86. In appeals from Barbadoes to the Queen in Council, the right of appeal is limited to cases in which the subject matter involves amounts to i;300. 1 Island of St-Vinccnt, 1804 June 27, X Law Times N. S. 672, 2 Madras, 1820 May 22, 1 Knapp. 331 note. 3 Jersey, 1841 May U, III Moore 413. 4 Mauritius, 1645 June 13, V Moore 81. 5 Hong Konff, 1853 June 22, VIII Moore t!20. 6 Island of Barbiidoes, 1855 July 20, IX Moore, 100. RO AI'l'KAL :; I >;' -J FAJ.Nt: OR IXCOMPKTEWT APPKALN. The roiirt at Ifothing ean he nioi-e important than tliat it shoulil be umlerstood that those wiio eome luifore this com- mittee upon an e.r;)ar/e application for leave to ap]teal, should con- Nider it their altsolutc duty to slate, in the lullest and fraidvcst way, every circumstance connected witii the history of the case, whicli possildy can have any i.earing on the leave for which liuy ask. Now, their Lordships do not moan to attribute, either to the appel- lant or to his advisers, any intention.'il disregard of this duty, or any wish in the petition which they presented in the year LStiS, to «uj)press any fact which they might have tht.-, il'it appears that tho ])olition upt)n \\!;i^ii tho order was granted contains any misstatement, or any concealment of facts" which ought to bo disclosed. Canada Ckxtk.lI, IiAii.wav Co. v. >ri hkav ^ 1»2. Kuli»s to be followed in special applications for leave to api)eal were laid doAvn as follows by : Loan Watson, p 575 : — Their Lordships are also desirous in this case to la\- down tho rule, that they will in future oxj)oct Jtartio^ who are petitioning for leave to bring an appeal before this Board, to slate suicinclly, but fully, in thefr petition, the grounds upon which they make that demand. They certainly expect that parties 1 lionet Kong, 1870 July 8, Vll .Moore X. S. 110. 2 Allahabad, 18a2 .Miircli 21, L. U. VII Appoiil Cnses 321. ;i S. C. Caaadii, 1883 June 30, L. K. VIII Appeal Cases 575. K2 AI'l'KAL M rAi.Ni: OK ix('omi>»:tkxt appkaln. will coiiliiir lluiiiM'l\H's ill tiituii- ti> tlio pi'tition. and will not wandor inl<» ixiraiiciMiN iiiallcr. Midi as llu- ri'conl iinil jH'occtMliiiijs over wliicli tills Miiar Kiiiilaiid liy the proper aiitiiorities. Iiave no eontrol, and wliieli tluv V '1111101 aeeept on an ex parte statement, wliieh an ajv pliealiiiii n|' ihi-. k'ind is. Mai DAl.NS V. I.KillOAToUS oK JkHSKY nANKlMl Co. * !)y. Where an order grantiug si)ecial leave to appeal had be«'ii made upon a petition whifh improperly eoueea led from their J^urdships the ground upon "whieh the appeal had been reluKed hy the coiirt lielow, a subsecjueut petition that further evidence be taken must be refused, an nothing' will be done to assist an api)eal so instituted. iSee iiihnarrain G'hose V. IJulli'dliur Dosh, v APPEAL : speciul iijj/ilication for leave lo u/t/teal. Coiti'oRATioN OF St. John v. ('exthal Vermont IJy Co. ' 04. "When a party obtains leave of appeal on a v Order-in-Coiimil dated the 17th Kecemlpei" 1S87, to allow the present appellants to enter and prosecute an ajipeai against +he jud^nieiit of the Su- preme Court. In the ]tetition for sjiec. 'cave, which is reciteellants set forth correctly the grounds upon ■which the learned ('liief .Justice, and the judges who concurred with liini, decided in tavour of the 2>resent resjiondent, and then siilunittt'd, 'that if thejudgnient of the Sujtreme Court, conti'ary '' to the view of liotli Courts in the jirovince ami to that ol the " two Trench judges in the Supreme Court, is correct, the power " of taxation ot the municipalitieh in the province of (^ueoee is " greatly limiled. and that whether it is l>y law so limited is a que.s- '• ti-n ol great and gt'iicral iiiiportance." Tlu'ir Loi'Uliips would not have made any reference to tiiese initial piocei'dings, liatooil that partio?* who j;ot sucli leave upon tlio distinct iv- prcsentations that tlio}- dosiiv to raise a partiouhir (jueslion of law ot' great ami i^eneral iniportame, eannot l)o permitted, at the lieariii^' of tiie appeal, to ehanire front and saytliat no sueh»iuestion arises, and to argue that tlie ease turns upon a question ot" fact whieh liie Supreme Court lias wrDiigly assumed or decided. If the ap])ell:inl corporation, in pelilinninn' lor the exercise of Jler Majesty's prerogative, had slated the same case which they attcm|»t- etl to present in argument, it is almost matter of certainty that leave ti> appeal would have l»een refused. Upon the construction of the Municipal Acts, their J^ordshijts en- tirely concur in the view taken liy theChiel .lusiice JJilcide. .Section .'{^o of the <.' 'leral Act imjioso upon the valuators appointed liy the Council llic Uity cf making a valuation ot' the " taxaMc properly of the municipidiiy " ; and hy the lerm.s of Section ;{2(i no pari of a railway is nia Ic taxahle property, except the land, as land, occupied by the foad. In their Lordships' opinion the enactment of Section :j^7. to the etl'ecl that, when the company make no return, the valua- tion of all their imniovahle property shall he nuule in the same man- ner as that of any other ratepayer, refers to their immovahle pro- perty alreaily declared to he taxahle, and wimply amounts to a direction that the value of such taxahle estate shall he OHtimaled hj' the town's valuators instead of the compaii}- it.-iclf. FRO.H I.\TEKI.01'VT0RY JVOOMEXTS. Xaiion v. Pakiexte ' ito. Wheu the leave of appeal is limited to judgments ola delinitive character, an appeal upon interlocAitory matter will not be received. 90. The charter of Justice «iranted to thi^ town of Gihraltar gives a right of appeal to the king in council against any Rual judgment, decree, or sentence of the court l)elo^^' ; or against any rule or order having the effect of a final or de- finitive sentence. In a subsequent part of the charter, there was a reservation to the king in council, to allow an appeal upon the petition of any person aggrieved by any judgment or determination of the court below. Their Ix)rdships, however, were of opinion, that the latter clause in the charter did not reserve to the king in <"ouncil, the power of admitting appeals from Jvidgment.s of a ditterent uat'.ne from those mentioned in the first clause. "sLsoN V. Belson • 97. Appeal allowed from a provisioual order of the Royal court of Jersey, directing the iufaut children of the parties, 1 Gitirultnr, 183'2 N'ov. 24, 2 Knapp 66. 2 Jeisi-y, 18.J0 Feb. '22, VII Moore 30. «4 APPKAL I'KO.n IWTKRMHTTOKV jrDClMKKTN. to 1)0 left provisiouually iu the custody of the mother pending it suit lor a separation. LiiHi) HuordUAM, p. ;{4 : — The holi- rpu'slion is, whotlior wo sIkhiIiI iidiiiit an iipiioal I'rom an liitorloeiitory Order, is not tliiM u deliiiitivi' srntomr r/uortf/ till' oii.stody ol' tho oliildren ? Wo lliink it is, Us iho idtiniato (loeisiou in tliu Huit oannot afl'ect that oustody. JoNKS V. (rOlllII & AL. ' 98. An appellant is not bound to appeal from an inter- locutory judgment, although by doing so he might have raised the Avhole question. He has the right to reserve the question upon his ai>peal from the linal judgment. Cameron v. Fraser, 4 Moore 1 ; The Queen v. Belcher, 6 IMooff 471 ; Williamii v. The Bishoj/ of Salisburi/, 2 Moore N, »S. 377, 85*1. LaMIIKI.N v. ThK SmLTII KasTEKN JJa1I.wav CilMl'ANY " W. The I'rivy Council will grant an appeal from a judg- ment setting aside the verdict of a special jury and ordering a new trial ; such judgment does not belong to that class of interlocutory judgments from which no appeal is allowed from the court of appeal to the Judicial Committee. A deposit of jESOO as security for costs was ordered. GoLDKlNd V. La lU.NQUE d'Hocuei-aoa ^ 100. The i'ourt of Queen's Bench cannot grant leave to appeal to the Judicial Committee of Her Majesty from an interlocutory order. 101. A judgment of the i-ourt of Queen's Bench confirming a judgment of the Superior court, which rejected a petition to quash a writ of Cnfuns ad respondendum is not a final judg- ment within article 1178 Code of Civil Procedure. .Sir James W. Colville, p. ^72 : — Tiio urtiole 1178 of tho Code of Prooodiire is profiso that an ajjpcal lies to Iler Majesty in her Privy Council from final judgments rendered in appeal or error liy tho Court of Queen's Bencii. Then it gives tiie cases in Avliich tlie appeal is allowed. There is no express provision for the allowance oi' such an appeal from an interlocutory order. The argument in suj»port of tho order of the court lias proceeded chiefly upon sect. 822 of tho same code, which is one of tliose which relate to ])roce- tlure in respect of writs of capias. That article appears to their Lonlships clearl}- to imply that the decisions to which it relates are no more than interlocutory orders. If the decision of the Supei'ior 1 Canterbury, 18G5 Feb. 2, III Moore \. S. 1 2 Quebec, 1877 Dec. 12, L. R. 5 Appeal Cases 332. a Quebec, 1880 Feb. 7, L. R. V. Appeal Cases 371. u APPEAL 8ft FROM ISrTRRrOC'VTORT Jt'lMilMKWTN. Court on the matter therein referred to hny this artiele Hpeeial leave to appeal, because it would have been appealable under article 1115, as jMiinted out by Mr. ]>ij,dty. The real ol jeet of the article is to make s]>eeial provision for an appeal to tlie Court of (Jueen's Bench from an interlociilorv order of a parlicular kind. The (.'ode j^ives by article 11 It! an appeal aj,'ainst < ertain other interlocutory judiiments, but in these casi-s article 111!! provides that there must be a j)reliminary motion before the Appellate Court, in oriler that the Court may decide whether tlie particular judi^ment falls projierly within the terms of article 111(1. nut an appeal from an interlocutory Jufljjjmenf Tinder article 822 was not to be >ul)ject to that provision, and hence the necessity for that article. The Judf^ment of the Court of (Queen's Hench upon a judfj;ment of tlie Superior Court in this matter cannot be regarded as a final judgment within the nieaning of article 1178, unless it can be shewn that proceeilings under the j)rovisions of article I'Mi, and the siibse- (pient articles of the ccwle which relate to the particular subject <»f capias, are so severed from the general suit that they are to be treated as .something sejiarate in their nature, and not as incident to the suit. Their Lordships are of opinion that the Coile has not eypresse1' tlu' oxi'iMition ol'llic rtcntoiicc, till lliiil anplicu- tioii \V!is lu-anl ami ilis|)(»xoi| of, Mui il' t\w ('n)\vii has really, \>y tliis (!|iarl*'r. resi-rvi'd to itsi-lf ilu- rjcfht "f yraiitiiii; an apjical in Hucli caMit'^*, what aro tlie ini'vitalili'coiisi'inu'nco-* '/ Tocaiiso fxiciition to ho (lono, wonhl hi', in ctlt'ct. to ])rivcnt tho ri^ht of ^'rantin^ an appi'al vcNti'il ill tho Crown, anoni'r vonviclnl, tho ri^ht of layini; his raso iwfori- liis .xovoroit^n, and of ohtainini^ a re-consideration of it. Por it must he rememhered, that if a re-eonsideration, hy way of appeal, ho reservee, aeconlinjLj to the riufht reserved to the C'rown, and the ]irisoner. Many very evil e()nse(|uenees mtist neeossariiy follow from this tate of ihingH. A lonu; period must elapse hefore an applieation to the Crown eoukl lie maile, and its decision eoulil he known. And eventually, whero the leave to apjical was refused (and it must ho presumed, that this would fxenerally ho the case), execution would follow the sentence, after so lonij an interval, that all henetit to ho expected from a ]iuhlic exam])lo would be lost; and to this it may lie addeil, that in ii ;.a"eat majority of oases, tho convicts themselves would he kept in a state of miserable suspense, to suffer in tho end tho HUino igno- minious death to which they were sentenced. TllK (JtKBN V. JoYKt.SSE.N MoOKKK.IKE ' 107. On an applicatiou I'or leave to appeal from i he sen- tence of the Heuder Niznmut Adavilul ^ the Judicial Com- mittee, although of opinion that justice had not been done in the court below, declined to admit an appeal, on the ground that .such course might be detrimental to the ireueral administration of criminal Justice i)' Her Majesty's Colonial and Foreign possessions ; but sugg ted an application by the petitioner to the execxitive authoiities for relief, -with an intimation of their Lordship's opinion of the hardship and injustice of the particular case. Dr. Lusm.\()To.\, p. 2!tj) : — Xow, with reference to the existence of the ]>rerogative of the Crown, their Lordships are de^irous that no expression should tall from them which in the slightest degree wouM throw doubt on the existence of that prerogative, not only under the existing circumstances, but in others wliich might arise with reference to tho others dominions of tho (^ueon, wjiich may have boon aciiuirod by conquest. They do not think it necessary that they shoidd, on the present occasion, enter minutely into the eon- siilerati()n.s upon which tho prerogative of tho Crown is founded. m 1 Bengal, 1862 July 16, I .Moore N. S. 272. 2 Tlie chief native crimiual court of appeal in Bengal. '^ :M f III! / ■ I ^1 1 " ■ 1 ; ;| i If! H8 l.\ 4'HIMIMAI. <'.%NI:N. AIM'KAL 'riiry lliiiik it will MifHco for tlic jnirposc of this ciisi', to aNsiiiut' lliiit it (1mi> ^•xi^l, iiinl. fiiiist'niiciitlv, lliut it is in the pnwor of the .Imliciiil ('oiiiinittei' of tlio rrivy Coimci', t'x«'iTif*iii>; tliiit prcro- uaiivf lijrlit miiii r the <'ro\vn, ho to mlviso lltT Miiji-fly. if tlioy slmulil lliitik nil a|)|i('al oii^lit to li«> iillowtMJ on i||{< niuwt'nt occasion. Willi iciini'il 111 ilic nu'rits of tlii' fusi- itsi'lf, tlioir Iior(islii|>s ci-r- laiiilv ai'o iiiiiincij to nmu' to the roncliihioii lliat Jll^tit■t• has not liitu wvy wi'll adiiiiniNli'ii'il in tin' iircsont cane; tuul, siiiijiuwini^ it til liavc liiM'ii a civil, ami not a criinnial cano, tlioy woiilil liavo had no hoitalion whatever in reconiincniling to Hor Majesty to allow an a|i|pi'al lor tlie |tiir|ioist' of considering tliese ))roceedinj:;s, and of diiiii;,' justice til tlu> party cimiplaininjj. Hilt this is a criminal case, and suliject to very difl'eront con- • iderations, ad'iiittinn, therefore, two thint;s — admitting.' the exis- leiice of the pero^rative of tlio Crown, and admitting tltat tliis,^r/Hi«J fitcle and ]ire>iiinptively, is a case of tcreat liricvaiice. — their Lord- ships have now to determine whether, lookinu; to all the circiim- slances atlendin/; the j^rantinj,' of appeals in criminal 'ases, it would lie tliei" iliity to advise Jler Majoly to ;,'rant tlieir appeal or to withhold it. We must recollect, in the first place that hy ;,'ranting an appeal is meant an examination of the wlmle of the jiroeeeilini^s which have taken ]ilacc. It is not simiily for tiie investigation of any legal i|Uestion which might have ai'isen ; it is for the purjiose of examining the whole of the evidence, and the whole course of the liroceedings upon the trial, to eiiahle us to come to aieondusion upon tlie merits. Now. it is of no small importance to hear in mind that, notwitli- standing t!ie numlierless instances in whicii an application of tliis kind miglit have lieen made to the (^ueen in Council from all the \arious dominions sulijects to Her Majesty, fronj all tiioso parts of Her dominions tliat were acquired hy coiujuest, and where Her Majesty lias tlie entire sovereign power of legislating, according as she may think tit, either hj- orders in Council, or, as was determined nil a former occasion, hy virtue of Letters from the Secretary of State, it is, I .say, to he horne in mind that, in no instance whatever, of any grievance however great, at any time, has any attemjit over hcen made to ajiply to Her Majesty tor leave to appeal in a criminal case. AVe can easily call to memory very many instaiu-es which have occurred in the Colonies in which it lias heen alleged that gross in- justice has heen done, and even lives sacrificed where they ought not to hav<> heen exposed to any danger ; but no ]irecedont of an appeal of this nature has existwl ; and Ave think it is obvious, iijjon the least consideration of the consequences, how it is that no such precedent has existed, and liow it is that no such precedent would have boon created, even if an attempt hail been made to call into force the power of the Crown. It may be true that on some occa- sions it is not very desirable to argue simjily from eonse(|uences alone; but the con.scquences of granting an appeal in cases of this description are so exceedingly strong, they are so entirely destruc- u AI'PKAL 89 ISr «'HIMIWAI. 4'ANEN. (ivf of till' iidiiiinistratiiiM <>|' nil i riniimil jii; ' ]iniili'n('(\ tliiit \v»» (•luiMctl for u sin;rli' inonH'iil iloiilil timl they ar« ot' iIk' ij;r('ati'^>l iiii- portaiu'o in f^iiiiliii;,' us to form a Juilirmi'iil. Xow, if \vi! wore to ailvixi Hit Maji'sly to yiani an a|i|ii'al on this petit ion, liow would liio casi' si am I ? It issii 'ily tlii' case of a a inili\i- (iual liavin^x lieon convirtcd of causing i./iutncnfs to Ijc fort^i'il. Would not tlu' saint' rij^ht ajiply to capital cases? \\ h'M would IhmIomo II a oajjital case? Is there any distinction wliiiii rni lie diawn ? If the i»rero^a'ive of ller Majesty i^ives this Imlividual tlu' rigiit of a|>peal. could any riili's or re^^ulaimns he imjiosed wherehy the li^^ht of apjieal could he j;;overned, or could he ivstricted ? So you would j;o ihrouf^h the whole cataloifiie of cases, ai\d there is no douh* vliat- over that whenevi'r ]tunishincnt was likely to ensue, there would follow an ai)peal to Her Majesty in Council, and coiisc(|Ufntly not oidy would the course of Justice he waived, hut in very man}- instances it would he entirely prostrated. Thes(> are the reasons which operate upon our minds in rejeetinu; this a|)plication ; not at all tl)ri;ettihj^ that injustice may have heen do?ie in this imlividual case, and not at all foi-^etlinij; that the jmwer of the Crown may he invoUed in another shape, and that injustice may bo roniodied. TiiK Falkland Islands Comi>any v. Tiik (Jikkn ' 108. Their LoidNhips ontirdy ussoiiti'd to the pviucipU^s of al)ov»> cause of 'I'he Queen v. Joi/kissen Mooherjee, to wit, tliat the Crown has authority, by virtue of its i)roro<>'utivt'. to review th** decisions of all colonial courts, whether the pro- cecdinu's he of a civil, or criminal character, unless it has parted with such authority ; but the inconvenience and inexpediency of entertaininu- appeals in criminal cases is so Sfreat. and the consequences so entirely destructive of th(f iiiiuinistration of criminal justice in t!ie cdlonies, that ibe •^iidicial Committee are very rehictaut to admit an applica- tion for such an appeal. l(>!\ Where, however, the proceediuii's were in substance rather of a civil character, under a form of criminal law, b(>inn' an order in the natiire of a summary conviction for penalties for killinir animals fenc ntittinr ; and involved ti question of la^y and property, namely, the ri<»'ht of the Fulfdnnd hiatids Cniiifnini/ to hunt and take wild cattle upon certain i^razini^* stations and the lands attached thereto, and the Ordinance under Avhich the conviction was mad»* tiave no appeal ; th(( Judicial Committee, in the special t'ircumstances of the case, and by analooy to the proceedinii' by Certiornri in En'jcland, advised Her Majesty to admit an appejil from sxich order, or conviction, on the understandiny- that the question of title 1 I-'iilklaiid Islands, 18G3 June n, I Moure \. S. 209. a- i)0 AI'I'KAh IS CHIMIXAI. <'ANKN. ami riifht sliould aiipcar upon the fiue of the record, Avhu-h AVas orclcn'd and Ijrouiiht up. Keh. v. Hkktkano ' 110. The Juditial (.'oiamittee, although approviug the priiiciple.s ol'the above eases, granted leave, of appeal iu this cau.se. the grounds of Avhieh are explained as follows : Sill .loii.N T. C(ii,Kiiii)OK, p. 47i{: — Uj»i)n piiiieiple. and refereiico to tlu' ili'cisiuiis of this coinmittoe, it sot'iiis uiidfiiiaMi' tliat in all casi's, friiiiiiial as well at* eivil, arisiiiir in plaei's i'min wliifli an ajipcal would lio, and wlit-ro, eitlior liy tlie It-rnis of a charter or slaliite, the autiiority lias not been parted witii. it is tlio inhen-nt prcrorfativc right, and, on all propiT oecasions, the duty ot' the (^ueen in ("ouneil to cxcrcisi' an ap)»ellat*' jurisdiction, with a view not only to iMismo. so far as may he, tlu- due administration of jiislico in the individual case, hut also to juvstTvi' lh(> dui' coiirso of |iroc't'iiuri' ifiMHTally. The int"fest of Iho I'rown, duly consicU-red, i« al least as Ltrcat in this rospocts in criminal as in civil cases; i)Ut the exercise of this pi-eroLcative is to he rcirulated liy a eonsider-ition of circumstances and consc(iuences; and interferi'nce hy iler Majesty in<"ouneil in criminal casi-s is liUi'ly, in so many instances, to lead to mischief and inconvenicni't', llial in them the Crown will he veiy slow to entertain iin appeal iiy its otHcers on hehalf of ilselldr hy individuals. The instances of such a])])eals hcing entertained are, tlierelore, very raie. The opinions staled by this committee in tlu' followiiii; cases : Ames e.i al.. Ill Moore's V. C'. cases 4tl4; The Queen v. Joykissen Mookerjef. I Moore's P. 0. cases. N. S., 272; The Falldaiid Islands Co. v. The Queen. 1 Moore's V.V. cases, N. S. 2!I1M;, estal)lish this position. The result is that any application to he allow»'d to ajipesd in a criminal case comes to this committee lahorinu: inider a yreal j)re- liminarv dilficulty — a ditticulty not always overcome hy the mere suggestion of hardsliij) in the circumstances (tf the (■••ise ; yet the d'tHcully is not invincible. It is not lu'cessary. and jicfhaps it woulil not he wise, to attempt to point out all the gnmnds which may he available for the purpose; out it may sately l)c said, that when the suggestions, if true, raise questions of great andgi'iieral imporlanee, anil likely to occur often, and also whi-rc, if true, they show the due anil orderly administration of tin' law inlerru])ted, or diverted into a new course, which might create a jirecedent for the future, and also where there is no other means of preventing these cnn.-vcipuMU'cs, then it will be proper for this committee to entertiiin an apjieal, if referred to it for its decision. Levikn v. The (irKEN ' 111. The appellant had obtained leave to appeal from a conviction of a colonial court for a misdemoauour, subject to the question of the jurisdictiou of Her Majesty to admit such 1 NVw South Wales, ISO" July 10, IV Moore N. S. •)«:). 2 Jnniaicn, 1807 July 8, IV Moore N. S. 4^3. AIM'KAI- 91 il( 1.0 ho CO, liio a <() 'OS, if IX laiued by the C'roAvn was set aside, and a new trial granted. This order was set aside by judicial committee the :22nd June 180't. See VI Moore, iN. S. 177. KiKi. V. The (^iken '' ll.'J. Leave to api)eal was refused in this case, where the appellant liad been convicted of felony. During the argu- ment the following remarks were made by their Lordships : T\w ZiordO/uiHCfUor said lio liad o.xjtoototl to liavo lioard sonio- lliiiifj; upon llio (pioslion as to wliollior tlioro was any aii])oal in a criminal case. Was tiiore any antliorit^- for tliat '( Mr. liiijham cited tlio case of Attorney General for New South Wales v. Jiertrand (1 Privy Council Appealx, p .")2(t). 'Y\w JjOrd Chancellor \w\\\\i't.\ out that tiiat ca>o luriiod upon Iho provisions of a particuhir statute icivin.tc in I'xpross tonus an appeal. Lord Monksioetl Huid that their I>ordships had stated on one. or two occasions tha< tiiov had jurisdiotion to entertain a criminal ap- peal; but, ii.s a rule, thoy never did, e.xoopi under very special cir- ♦ umstancos, and ihon thoy never wont into the merits anil lovorsod the Judgment below tij>on the uu'rits. Lord Hothouse said that whonovor an aj.poal hail boon alloweil it had boon upon the f^round that justice hail not boon done owing to some error in procedure. Lord Monkswetl said that it the ]iotitionor had been tried without ajiiryat all that would have boon a ground for appeal, but if the I'rivy Council sat as a oourt of oi-iminal appeal from the colonies it would have to bo multiplioil tenfold. I'lvory man convicted of any <'iMmo or senlonood to death in any colony would appeal iis a matter of course, and bo respite'' til' the a]ipeal wa.i hoard. The Attorney-! i em, rai pointed out that an appeal had been enter- tained from Canada in the case of The Queen v. Coote (L. It. I I'rivy Oounod, p. M\)), but the case e prt'jiareil to hold, as olti'ii lias Ix-eu lield liolbro, tiiat in aiiv east- whore Iho jtrorogativo of tiie (Jrown has existed, precise words must he shewn to take away that prerogative. But, in the oniaion of their Lordships, a somewhat ditt'erent question arises in the jircsent ease. These two acts ot Parliament, the aets of 1872 und 1875, are aets ]>eeuliar in their character. They are not uctis constituting or providing for decision of mere ordinary civil rights; they are acts creating an entirely new, and up to that time unknown jurisdiction in a j)articular court of the colon}- for the purpose of taking out, with its own consent, of the Legislative Assemhly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the liCgislative Assemhly, of deciding elec- tion petitions, and determining the status of those who claimed to be members of the licgislative Assembly. A jurisdiction of that kind, is extremely s])ecial, and one of the obvious incidents or con- sequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the consti- tution of the Legislative Assembly to be distinctlj' and speedily known P. 107. The whole scheme, iherelure, of the Actof Parliament is that, once the action of the .Superior Court takes ])lace, and the decision of the Superior Court arrived at, the machinery is to go on just as it had formerly gone on inside the Legislative Assembly; writs are to be issued, seats are to be taken, other proceedings are to be had, as would have been the case before the court was called into operation, and when the Legislative Assembly ilecided these mutters by its own authority. Stopping there, it would be very ditficidt to do otherwise than conclude, from the character of these enactments, that the olyect which the Legislature had in view was to have a decision of the Superior Court, which, once arrived at, should Ix Ibr all purposes conclusive. But there is a further consideration vrhich arises upon this act. If the judgment of the Superior Court should not be ci^nchisive, of course the argument is that the power which is to bo br(jught to bear to review the judgment is the pcwer of the Crown in (Jouncil. Xow, the subject matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and the i)rivileges of the electors antl of the Legislative Assembly to which they elect members. Those rights and privileges have alwaj's in every colony, following the example of the mother country, been jealously maintain- ed and guarded by the Legislative Assembly. Above all, they liavo been looked upon as I'ights and privileges which i)ertain to the Legislative Assenibly in complete independence of the Crown, so far as they proj)erly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to the rights ami privileges of this kind, it was to be found that in the last resort the determination of them no longer belonged to the Superior Court, which the Legisla- tive Assembly had put in its place, but belonged to the Crown in 94 APPJOAL IX t:i.»:('TI4».N' CANKM. Coiincil. witli the ailvicc of tlio advisers of tlic Crown at home, to lie (U'leriniiieil witliout rei'ereiiee eitlier to tlie jmlgnieiit of tho Lcgi>lative Asseinlily, or of that Court whitli the Legishitive Assemlily Itad suhstitiiteil in its place. Tiiese are consideratioiiH wiiieii lead tlioir Lordships not in aii}- way to infringe, -tthifii tliey would lie far from doing, ujion tiio general priiKi]jle that the prerogative of the Crown, once established, cannot he taken away, exce])t hy exjiress words : hut to consider witli anxiety whether in tho seiieme of this legislation it ever was intended to create a tribunal whioii should liave, as one ofitsin- cident>, tlie liability to be reviewed by the Crown under its prero- gative. Ii\ other words, their Lordships have to consider, not whether there are express words here taking away prerogative, bnt whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown. Jn the opinion of tlieir Lordsliips. adverting to ihese considerations, the 9 Selborne, p. 117: — Their Lordships ha%'c carefully consi- dered the able argument which they have heard from Mr. Benjamin, and they feel glad thut so full an argument has been ottered to them, because there can be no doubt that the matter is one of great impor- tance. The petition is to obtain leave to appeal from two concurrent judgments of the Court of tirst instance and of the Court of Appeal, affirming the competency and validity of an Act of the Dominion Legislature of Canada. Nothing can be of more imj)ortance certainly than a question of that nature, and the subject matter also, being the mode of determining election jjctitions in cases of contro- verted elections to seats in the Parliament of Canada, is beyond all doubt of the greatest general importance. It, therefore, would have been very unsalisfactoiy to their Lordships to be obliged to dispose of such an application without at least having the grounds of it very 1 yuebcc, 1S79 Dec. 13, L. R. V. Appeal Cases 115. APPKAL 95 ISr EI-WTIOSf t'ASKN. fully proHonted to thorn. That Ikih lioon (lunc, and I think f may veuliiro to say for thi-ir Lordshi|is frciuTally that thvy wry inutli doulil whether, if there had been an appeal and counsel present on both .sides, the i^rounds on which an appeal would have been supi)orted, or mi^ht have boon sui)|)orted, eonM have l>een better presented to their Lordships than they have boon on the present occasion by Mr. Eonjamin. In that state of the ease their Lordshi])s must remember on what princi])les an application of this sort should l)e jfranted or refused. It lias boon rendered nocossary, by the lesijslalion which has taken place in the colony, to make a special apj)iicati(;n ti the Crown in such a case for leave to appeal ; and their Lordslii]ts have decided on a former occasion that a special ap]tlication of that kind should not be lijrhtly or very easily a;rantod; that it is nocossary to show both that the nuitter is one of imi)ortanco. and also that there is reallv a substantial ijuestion to be dotermineil. It has been alreaily said that their L (piestion, but the consideration of its importance and the nature nt the (juostion tell both ways. On the one hand those con- siderations would undoubtedly make it right to j)ermit an appeal, if it were shewn to their LordshijjS, prima fucir. at all events, that there was a serious and a substantial (piestion rei(uiring to bo doternuned. On the other hand, the same considerations make it untit and inexia'diout to throw do\ibt upon a ii'roat (piestion of t'onstitutiomd Law in Canada, and n])on a decision in the Court of Appeal there, unless their Lordshi[)s are satisfied that there is, prima fade, a serious and a substantial (juostion requiring to be determined. Their Lordsbijjs are not satistied in this ease that there is any such (jueslion. iiuismuch or they entertain no doubt that the decisions of the lower Courts wore correct. It is not to be ])resumed that the Legislature of the Dominion has oxceedeil its power.s, unless upon grounds really of a serious character. In the present case their I jrdships find that the subject nuitter of this controversy — that is, the determination of the way in which questions of this nature are to bo decided as to the validity of the return of members to the Canadian Parliament — is beyond all doubt placed within the legisla- tive jiowor of the Dominion Parliament by the 41st section of the Act of 1H()7, to which rotbrenco has been made. Upon that ])oint no controversy is raised. The controversy is solely whether the power which tliat Parliament possesses of making provision for the mode of determining such questions has been comj)otently or incom- 1)etently exercised. The onlj- ground on which it is alleged to have )een incompetently exorcised is that by the Olst and !l2nd clauses of the Act of 18fi7, which distribute legi.slativo powers between the Provincial and the Dominion Legislatures, the Dominion Parliament is excluded from the power of legislating on any matters coming within those classes of subjects which are assigned exclusively to the Legislatures of the Provinces. One of those classes of subjocts is defined in these words, by the 14th sub-section of the 92nd clause : — "The administration of justice in the Province, including the constitution, maintenance and organization of Provincial Courts, 9(i AriM:.\L IN i:i.K<'TIOX CANKN. both of civil iind of criminal jurixiiction, and iiicludini.' proccdnro in civil matters in those Courts. " The arf^tinient, ami the solo ar^^iiment, which has jiccn ottered to their Lordslii])s to induce them to come to the coiiclusion that thei'e is here a serious (juestioii to be determined is that the Act of 1S74. the validity of which is chal- lenji;ed. contravenes that particular provision of the !t2nd section wliich exclusively assigns to llie Provincial Legislatures the jiower of legislating for the administration of justice in the Provinces, including the constitution, maintenance arid organization of Provin- cial Courts ot civil anti criminal jurisdiction, ami includi) gpnjcedure in civil, not in criminal, matters in those Courts. ow, if their Lonlsiiijis had for the first time, and without any as.-istance from anylliiiig which had taUen place in the colony, to ajiply their minds to that matter, and even if the 41st section were not in the Ad, it woidd not be (|uite plain to them that thetransler of the jurisdiction to determine \i]>on the right to seats in the Canadian J^'gislature — a thing which had been always done, not by Courts of Justice, but otherwise — would come within tlie luitural imjxirt of those general words: "The administration of justice in the J'njvince, and tho constitution, mainteniince and organization of Provincial Courts, and procedure in civil matters in those Courts." But one thing i.s deal', that those words do not point expressly, or by any necessary implication, to the ])ariicular subject ot election petitions; and when we timl in the same Act another clause wh-ch deals expressly with those petitions, there is not the smallest dilHculty in taking the two clauses together, and in placing upon thorn both a consistent con- struction. That other clause, the 4lst, expressly says that the ohl mode of ,=.;. appear to their Lordships very ditlicult to suggest any grou'v ■• which the competency of t'le Parliament of Canada so t!) Ic^i .> could be called in i|uestion. \U\\ the ground Avhich is suggosu'd is this: that it has seemed tit to the J'arliament of Canada to confer the jurisdiction necessary for the trial ot' election ])ctitions upon Courts of ordinary jurisdiction in the Provinces; and it is said that although the Parliament of Canada might have provided in any other manner for these trials, and might have created any new Court for this pur))ose. it could not commit the exercise of such a new jurisdiction to any existing Proviiu'ial Court. Alter all their Lordships have heard from -Mr. Benjamin, they arc at a loss to fol- low that argument, even supposing that this were not in truth and in substance the creation of a new Court. If the subject matter is within the jurisdiction of the Dominion Parliament, it is not within the jurisdiction of the Provincial Parliament, and that which is excluded by the 'Jlst section from the jurisdiction of the Dominion Parliament i.s not an3-thing else than matters coming within the class of subjects assigned exclusively to the Legislatures of the Provinces. The only material class of subjects relates to the adnii- M ! h4 ld»W. >W I , '* .; .J- APPEAL 97 iiisti-iitioii of jiislioo in llio Provinces, which, rend witli the 41st Ht e judges of the Courts of first inslancc iiav»' liiouyiit there was more of suiistunee in th^- distinction tiian tiiere apjiears to tlieir Lordships to he, and Inive deciineil to exercise tins jurisdiction. Jt has heen said that five judii'cs have heen of that opinion. On the otiier liand, two judi^es of the tirsl instance, I thinU hoth in the Province of Quehec, the Chief .Iiistice in tiii' pi'i'sent case, and in another case Mr. Justice Caron, a judae whose ''.xperience on the Canailian Hencii lias heen lony;, and whose I'l'putation is hi,nh, have heen of opinion that this law was ]terfcctly within the cimipetency of the J)(jminion Lemislalure, and they could see nolhinu; n> the distinction taUen helween the jtrest-nt law as to its princijtie and the former; and now the (juestion has iioiic to theCourt ofApjieals. The Supreme C')urt of Canada, which, con^titutdl as a full Court of four judiijes, has unanimously heen of that o]»inion, and nothing has heen stated to their Lordships, even from those sources of infornuition witli which Mr. IJonjamin has heen supplied, and which he has very properly communicated to their L<)rdships ; nothmg has heen stated to lead their Lordshii)s at all to apprehen(' that there is any real prohahility that any judai' of the iid'erior Courts will hereafter dispute their ohligation to follow the ruling of the Supreme Court, unless, and until, it slwdl ho reversed hy Her Majesty in Council. Nothing has heen said from which their Lordsliips can infer that any Provincial Legislature is likely to offer any opposition to such a ruling on this ((Uestion as has taken place hy the Court of Apjjeals, unless, as has ijei'U said, it should at any future time ho roverseil hy Jler Majesty in Council. Under these circum.stancos their Lordships are not i)ersuaded that there is any reason to appreheml difficulty or distur- liance from leaving iintoiiehed the decision of the ("ourt of Appeals. Their Loi'd>hi])s are not convinced tiiat there is any reason to expect that any of the Judges of the Court helow will act otherwise than in due suhordination to the ai)])ellato jurisdiction, or refuse to follow the law as laid down hy it. If, indeed, the ahlo arguments which have heen offered had ]iroduced in the miml of any of theii Lordships any douht of the soundness of the decision of the Court of Appeals, their Lorilships would have felt it their duty to advise Ilor Majesty to grant the leave which is now asked for, hut on tho contrary the re>ult of tiie mIioIc argument has heen to leave their Lordships under the nuprossion that there is hero no substantial question at all to bo • lotermined. and that it woidd Ijo much more likely to unsettle flic minds of Jler Majesty's subjects in tho ]-)oininion, and to disturb in an inconvenient manner the legislative and other proceedings there, iftheyM'cre to grant the prayer of this jietition, and so throw a doul)l on the validity of the decision of tho Court of Appeals below, than if they were to advise Her Majesty to refuse it. Under these (••rcunistances their I/)rdships fool it their duty humlily to adviso -' ler Jrajesfy that tills leave to appeal should not bo granted, and liiat tho petition should be dismissed. u ArPKA I 99 Kk.nnkky v. I'rm ki.i. ' 118. The Judicial (.'omuiittft' will not gTaut leave ol'appeal, as ail act of grace, on special application, in the matter oli-on- tested elections. The Canadian statute having appointed lor these contestations a special tribunal with a special proiedure and declared that the judgment ol" (he Supreme Court of Canada shall be Hnal, it is clearly the intention of the parlia- ment to conline the decisions locally Avithinthe colony it.self. Lniii) IIoBiKiLSE, p. 280: — It iis iKtw atiicd liy tlio petitiinu-r tliat inasmach as the qiiestioiis doeided are ini]i(irtant qiR'stions of law art'i'C'ting tlie CKHstruotion of election slatutcs, ami tlicrc is <;ood ground for doubts a.s to the souiuhiess of tlic decision, Her Majesty in Council should entertain the appeal. On the other side, the importance of the question was not denied, nor is it denied that the decision is not tiiirly open to afirument. Hut it is contended, first, that the suhject luaticr is not one with resjiect to which the ])rero^ative of the Crown exists; and secondly, that if the prerogative exists, it is not proMcr to exercise it. To support the lirst ])roposition, the case of Theberge v. Landry is relied on. That case arose under the (Quebec Elections Act of 18"."i, by which the jurisdiction to try the election ])etitions was given to the Superior Court, whose decisions were declared not susceptible ofapjjeal. The petitioner sought to appeal on the merits of the election. The decision of the Judicial Committee was not that the prerogative of the Crown was taken away by the general prohibi- tion of appeal, but that the whole scheme hiinding over to the < 'ourts of Law disputes, which the Legislative Assembly had previously deciiied for itself, showed no intention of creating tribunals with the ordinary incident of an appeal to the Crown. In the case of Valin v. Langlois, the petitioner asked leave to appeal to the Supremo Court of Canada under the Controverted Elections Act of 1874, which was one of the Statutes consolidated b^- the Act now in (piestion. The ground of appeal was that the Act, being a Dominion Act. was ultra vires of the l)(miinion, in assuming to give to Acts in (Quebec jurisdiction over elections in (Quebec to the Cana- dian Jlouse of Commons. The Judicial Committee held that there was no ground for any such contention, and dismissed the petition ; but it was said that, if they had iloubted the soundness of the decision below, they would have advised Her Majestj- to grant leave of appeal. That opinion is now relied upon as limiting or contravening the otfect of the decision in Thiberge v. Landry. Their Lordships did not think that for the present purpose any useful or substantial distinctitm could be taken between tlie Statute that was the subject of decision in Thiberge v. Landry, and that which was the subject of decision in Falin v. f.anglois. and those which were now in questiim. In all three eases there was tlie broad consideration of the inconvenience of the Crown interferiiig in elec- 1 S. C. Ontario, 1888 July 7, 59 Law Times N. S. 279. t I KM) AI'l'KAL Ijr ELM'TIOX I'ANKN. tion iiiiittiTs. and the unlikolih I flint the Colonial Logislaturo hIkhiIiI iiiivc inftMnliil any >u(li result. In all three then' was the eivatinn ot H sjK'cial tiilmiial tin' tlie trial of pelitionH, in the hoiiho that the litiiration was not left t<> tblluw the eon rse of an ordinary suit, hut was Kulijeeti'd to a special jiroeedurc with limitations of its own. And in all thive thefe was the same expression of tho inten- tion to make the i'olonial decision linal. Hut >ueh variance as there was JK-twcen the two cited ^■a^cs was only to this extent — that the Committee in the latter case must have thought that the existence of the |»rcroixative was still >UM'ej)iilp|e of nrniiment when the dispute went to the very root and validity of a law passed hy Parliament to trke ettect in a Province. Their opiiuon on an fx partt hearing.?, and on the solo question whether or no there should be any further arf.MimeMt on the matter, could not he put hii^her than that. Their Lortlshijis do not lind it necessary' to give any decision on tlie ahstra<'t question of the existence of the prerogative in this ease, because they are satistied that, if it exists, it ought not to bo exercised in the case before them. It IS true that the questions are very difficult, and that they affect the administration of the whole law on this subject ; but the range of cases atlectetl by them mu^t he very narrow. It was not suggesteil that in the present i'arliament there was a, single case, except the one under ajtpeal. There could bo no other ease until fresh elections took place, and, if the ilecisifms given had really misinterpreted the mind of the liCgislature. ami were calculated to establish rights of procedure less convenient than those intended, the Legislature would at once set the matter right. This peculiarity of the subject-matter greatly diminished the force of the consideration — usually a strong one — that the decision com- plained of atlected general quttslions of law. The next observatiim their Lordships have to make is that tlie Statutes show throughout a de.-ire to have these matters decided quickly. There are most obvious reasons lor such a desire. The legal duration of a Parliament, their Lordships understand, is tive years, and its usual duration four years. It is most important that no long time should elapse before the constitution of the body is known ; and ^-et, if the Crown is to entertain appeals in such cases, the necessary delays attending such appeals would greatly extend the time of uncertainty which the Legislature has striven to limit. Again, the intention to conline the decision locally within the Colony itself is just as clear as the intention to get it declared speedily, because it is exi)ressed that the decision of the Supreme Court shall bo final. It seems to their Lordships that there are strong reasons why such a matter should be decided within the Colony, and why the ' jjrerogative of the Crown should not (even if it legally can) be extended to matters over which it has no power and with which it has no concern, until the Legislative bodies choose to hand over to udicial functionaries that which was formerly settled by themselves. Before advis'ng such an exercise of the prerogative, their Lord- APl'liAL 101 kW EI.K«'TION CANEN. shipH would requiro to Hiid an indicntion of an intention tluit llie new ))ro('«'i>on ajiplying for leave to ai)])eai in forma pauperis. We will consider tliis applicaticjn, and sec it we can make some general order. Judgment was delivered on the following day by : The Rkiht Hon. Dr. Lusiunoton, p. 437 :— Their Lordships con- sider that a certiticate signed by counsel, that the cause is a jiroper one for appealing, ought to be proiluceil, when their Lordships, if thej' think tit. will order the Surrogate to admit the apj)eal in the usual way. This rule is to be general, and apjjly to all pauper appeals. Watts x. Hk.vsian ' 121. An appellant who had not sued as pauper in the court below, admitted to appeal in fornui pauperis, upou the 1 Jersey, 1848 Dec. 11, VI Moore 412. 2 Canterbury, 1851 June 26, VII Moore 436. 3 Canterbury, 1854 April 6, IX Moore 81. 3r H i m 1112 Al'l'KAL !|i IN rOKMA PAI'PKHIN. iiNual icrtilitati', without uiviiia' Kt'cxirity lor the toNts alrciuly iiifurrcd, and in whith slu' hud bi't-n coiidi'iuni'd l»y ihf Uecret' of the court below. UlSllfll- V. WlLDIMUK ' 122. All aiiplicatioii to proceed in foriini j)(in/ieris, by a married woman who wan entitled to an annuity lelt to her separate and charged upon property which wan in course of administration in the coiirt of C'luincery, but without any immediate j)rosp<'ct ol' obtaininij the arrears of such annuity, was yranted. Her hus})und was an uncertilicated l)ank- rupt with protection, and, although in temporary empUty- ment as an attorney's clerk, was with his wife in destitute circumstances. In re riKMi'itifciiK ' 123. Upon an aihdavit and the usual certilicate, leave to appeal in formd pau/ierix was granted. KkM-Y v. f".\SI,KTT ' 124. Leave to appeal in formd pauperis m' as granted sixbject to a certificate of lounsel being obtained that there are nu'rits and without the usual securities. Gaidin v. .Messkrvy* 125 There may be t-in-umstances in which a guardiau may 1)e i>ermitted to proseciite an appeal in formd jmit/ieris, on the ground of the poverty of his ward ; but the court requires an alHdavit that the infant cannot get a solvent uext friend to prosecute the appeal, and explanation must be given how security had being giveu in the court l)eloAV. IX jEKNEY iNi.Ax». See Practice : iisdem verbis. IN MATTERM OF niMRRTION. 7/1 re McDermott ' 126. Leave to appeal given from au Order of the Supreme Court of British Guiana, condemning the publisher ol' a local jourual to six months' imprisonment for contempt of Court, in piiblishing in a journal comments on the administration of justice by that court. The right to the judges of the Supreme court to object to the competency of such appeal at the hearing was reserved. Lord Westbury, p. 119 : — Their Lordships regard this case as one of great importance, and one that n\ay lead to important con- 1 Canterbury, 185,5 Feb. 7, Moore 408. 2 Jersey, 1858 Feb. 2, XI Moore 308. 3 Isle of Man, 1860 July 9, XIV Moore 89. 4 Jersey, 18G4 Nov. 28, II .Moore N. S. 372. 5 British Guiana, 1866 Nov. r,, iV Moore N. S. 110. wumtm API'KAI. lIKt IS MATTF.HI or DIM'KKTIOIV. sciliicnii'M. Oil llif out' liiiiul it is cssi'iitial to prrscrvi' a < 'mirt trum !ill (ilistriictiiiii to till' coiirsf of .liislici' ; on the oiIht IijiihI. it !■< viTy lU'siralik' timt tliori- nlioiild lie ii clioclv upon imy iiiliiliiiry I'XcniHc of till' iiowcfH ot'tlu- Court. Hut at ]iri'M'iit, Imviii.ir rcifard to till' ilisliiictioM Ik'Iwocii tilings doiu' hy |traclitioiii'i's of ( 'olonial Courts, ami tliiiij,'s doiu' in cur i a ; tliiii;;s doiic directly leading' to ihtorfiTi'iu'i' willi tin- adniiiiisti'atiiui oi' .lusiico. and lliin/is wliii-ii do not CHIP'' witliiii citliiT of tlu'si- rato^oi'ii's, (iii'ir Lordsiii|is are disposed to give leave to appeal. McDk.K.MoTT v. .TimiKS ok I^UITISM (iriANA ' 127. A court ol" record lias the power to comiuil lor con- tempt, Imt the exercLse olsuch u power Lsdiscieiioiiarv with the court and is not tho subject ol' appeal in ordinary cases, TuK Bank- ok Hindistan Ciii.na a.nd Japan v. Tiik IIastkhn I-'inan- riAl, AsSOCIATlo.N '' 128. The api)eal was Ironi a judgment ol' the lliiih court at l}onil)ay sanctioniim' jtroceedino's made by liluctant to interfere with the discretion of the court bcloAV, reversed the jxidg'ment and allowed the amendment, the costs being divided. I\ MATTERN OF I.>'NOI,VK>'CY. Ill rV A III! A II AM ' 130. The case was und(>r the appealable value and Avas not an ai)pealable o-rievance under the law of Jamaica. The pide'ment Avas from the Supreme court refusiiii^" to quash a ci'itilicate or Hat of insolvency. Special leave of appeal was refused as an appeal would not be consistent Avith the, rights of the creditors and the practice of the Privy Council. 1 British Giiinnn, 18C8 Fcv. 1, \ Moore 4Gij. 2 Bombay, IHGO Marcli !.■>, VI .Moore X. S. 114. 'A Sierra Leona, 1872 11 Jiiin, I.K Moore X. S. 35. 4 Jamaica, ISW June 14. II Moore N. S. 211. 104 AI'IMCAL ISr NATTKRM OF IX«OI-VEMy wa.s refused. Their Lordships iu refusing the demand made the following remarks : "First. The policy of the Dominion Legislature is to discounti- nanc'c ajipeals in matters of Jnsolvencj', so much so that not even an ajipeal to the Supreme Court of Canada is idlowed, and tiie final decision is made to rest with the hig'hest eoiirt in eaeh province. "(Second. The Dominion Ijcu'islatui'e cannot att'ect the Preroga- tive of the Crown to grant s])ecial leave to aijpeal, but in advising Her Majesty Avhether the jirerogative shoidd he exercised, the Privy C'ouncil pays attention to tlie expressed wishes of the colony, and Avill not recommciwl its exercise except in cases of general interest and im])ortance, and then only when it manifestly appears that the Court l)e!c)W has erri-d in a nnitter ot law. "Third. But even if it should he shown that the Court below has 80 erred, leave will be refused if it a])pcars that the Court below has decided the case inde])Ciulently of any jioint of law u])on a particidar view of the facts, for the Privy Council ado])ts the facts as found by the Court Iielow, and will not review such findings in an appeal entertained as an act of grace. '• Fourth. Their Lordships without ex]U'essing any decided o])inion as to whether the Court below was right or wrong on the ])oint of law {i.e., the construction of the Bill of Sale Act and the Insolvency Act of 18Tr>). thouglu that the (]uestion was arguable, and if the decision had turned upon this alone wouhl have l)een prepare apjjcal upon a question of this kind, unless they saw clearly that there had Ijcen some miscarriage in point of law, or very gross miscari'iage in the two ( "on rts, whoso concurriMit judgments are under ai)i)eal, on the matters of fact. Now. without going into complicated i)roceedings that have been commented upon in this case, it is sutticient to state that the judg- iiionts of Ihe Cour*^ Ijelow may be taken to liave proceeded almost exclusively u])(jn tlie act of the petitioner, in altering the deposit account oia certain sum of money in the ^ilechanics Bank, and the facts which !'>d to that were simply these: The defendant borrowed from the plaintitf a sum winch may bi- stated in rouiul luunbers at S32,()()(), ostensibly upon the security of certain property. He j)uid the sum of money into this Jiank in his own name witli a sort of special mark. As found, in July IHT-i, he altered the heading of that deitosit ac^coiuit so as to make it appear that the money was his wife s. The Bank become insolvent a month or two later, but just when it was on the eve of insolvency he drew out the ^32,000 upon a recei]il signed by him for and as tlie agent of his wife; and it is upon that transaction that the Courts below have principally proceeded. Now it is 1o be remarked that one ofthe learned Judges, Mr. Jus- tice Monk', whose tinal judgment was in favor of the detendant. says this: " Jf Molson had altereil the heading ofthe account on the eve, or imiui'diately before the insolvency of the Bank, for the purfxtse of making it falsely apjiear that the §32,000 deposited in the Bank belonged to his wife and ciiildren when they really lielonged to himselt, and if this had been done with a view of making the with- drawal of the sum from tlie Jiank ])ossible, or at all events more easy of a- "omplishment, and with the further view, after such with- drawal, of making away with the ame Her Majesty to grant speeial leave to aj)j)eal, and tlial tliis ])etition must he dismissed with eosls. CaUTKR v. 3foLS' N ' 134. There is uo appeal, uucler article 1178 of the Code of Civil Procedure, from a judgment of the coiirt of Queen's Bench in a matter of imprisonment. On special applica- tion, leave to appeal Avas granted. See Abandonment of PROPERTY. IJf MATTKKS OF EXEflTIO.V. XlEXWERKKKIC V. REYNOLDS ^ 135. An execution having been taken in virtue of ajtxdg- ment rendered by a court of justice in Berbice Island, a petition was presented to stop the proceedings, but was dis- missed as the grounds of the petition should haAC been opposed at the hearing of the case before jitdu'ineut. In an appeal to the Privy Council, the judgment was coniirnied. Loud Wv.\F((Kn, |>. KIT: — It \voiild lie a most inconvenient doc- trine, and inconsistent witli the principles of justice to allow a man to ap])eal against a writ of execution, and upon that ap2)eal to go into the merits of the original judgment. IX qVEHTIOKS OF FACT TRIED BY A JURY. ("oWl.\ V. MooKE ■■' 136. On an issue involving a question of fact, tried ])y a jury, the Judicial Committee will not reverse the linding of the jury unless anything material has been adiriitted as evidence which was not legal ; or any thing material has been tend red as evidence and rejected, which ought to have been received ; or in case of misconduct on the part of the jury or any member of it. Daomto v. Hei.i.otti ' 137. "Where a di'fendant objected to a verdict on the ground that it was not warranted by the evidence, but ne- glected to move the court below for a new trial, in the manner directed by the rules and practice of the court, the appeal was refused. Commissioner for Paii,ways v. Brown * 138. Where the evidence on both sides has been properly put before the jury, the verdict of the jiuy once found ought not to be disturbed. 1 Quebec, 1883 April 18, h. R. VII I Appeal Cnses 530. 2 Berbice, 1829 1 Ktinpp 151. 3 Isle of Man, 18G1 June 13, XIV Moure 354. 4 Gibraltnr, 1880 July IG, L. U. II Appeal Ciises 604. 5 South Wnles, 1887 Dec. 10, L. R. XHI Appeal Cases 133. 108 APPEAL IX Qt'ENTIOXN OF FACT TBIF.D BY A JVRT. The order of the court below, which had set aside a verdict as ajiuinst the weight of evidence, though it was neither unreasonable nor unfair, nor dissented from by the judge who tried the case, was reversed. IN 4|VRN'riO!V!» OF FACT. Moore v. Lucas ' 13!). The Judicial Committee never reverse a judgment on a question of fact, unless they are satisfied that the judg- ment is clearly wrong. Gravel v. Martin et al. ^ 140. The Privy Council will reverse a judgment on questions of fact only when there art* very strong reasons which establish clearly that the court beloAV was wrong. Per curiam: — Tlnir Lordships are ahvaj-H reluctant to reverse a tiiiding upon a mere question of fact, even by a single Court of Justice, but they are still more reluctant so to do when the decision of the Court -which tries the case in the tirst instance has l)cen affirmed by a Superior Court of Justice, and when there are two concurrent judgments upon a question of fact. Asa general rule their Lordships do not interfere with such a finding, and there must he some very good reason to induce them to reverse ii decision of a Court upon a question of fact, when that decision affirms the decision of a lower Court. Now, dealing with the evidence which was given upon the trial, we ai'e met by the statenient which the defendant himself gave three days after the alleged robbeiy was committed. lie says the robbery was committed on the lt*th June. On the 21st June he made a state- ment before the magistrates as to the circumstances under whicii the alleged roljbery was committed. Now the circumstances which lie then related, when the facts must luive bcenfresli in his memorj-, are wholly at variance with the evidence which he gave at the trial, both as to the time at which the I'obbeiy took jilace and as to the ])lace at which it took ])lace. On tlie trial he stated that when he t'ound the steamer moving he went to the steward to ask him to assist him in removing his valise. He says that about ten minutes ela]ised iietween the time Avhen he left his cabin and all was right and the time when he t'ound the steward. But upon his tirst examin- ation before the magistrates he stated that the robbery had taken place before the steamer left the icli a case no appeal will lie in respect of costs alone JilCIIARDS V. BlULEY ' 145. The above principles were upheld, Dr. LuMnglon remarking that " where there has been bima fide care and discretion exercised on the part of the judge "who decided the case, their Lordshijis had no hesitation in stating their opinion to be that, in such a case, no appeal will lie in res- pect of costs alone." Yk.v V. Tatem. The ' Orient" ♦ 14G. A party may be relieved in questions of costs merely, when a principle of Uiav has been violated by the court below in the adjudication upon costs. Sir JosEPh Napier, p. ;^2 : — Their Lordsliips do not mean to question or recede from the tleeisions that have been pronounced regarding not allowing an appeal for costs, but where there has been a mistake upon some matter of law that governs or atfects costs — some matter that involves the due application of principles of law 1 Bengal, 18.34 Feb. U, II Knapp 265. 2 Canterbury, 1801 June 15, XIV Moore 351. ;! Prerogative Court of York, 1864 Feb. 18, H Moori> X. S. 90. 4 Admiralty, 1871 Jan. 10, VIII Moore N. S. 74. 112 APPEAL IW 'e of the Admiralty court. IN WIIITN or EKKOK. In re I>a.ms.\v 152. There is no appeal de piano from a judgment of the court of Queen's Bench, in appeal, in LoAVer Canada, quasli- ing a Writ of Error on the ground that thi're was no appeal from the judgment of the court of first instanct; condemning a practising attorney to pay a line for contempt of court. lo3. Where a line is imposed, the remedy is to petition the Crowu for a reference to the Judicial Committee, under the statute 3rd and 4th Will IV. c. 41, s. 4. lXSOfcVEXC;Y OF APPKM.AXT PKXDI.\« TllK (i(i()i{n(irni:i{\ Skin v. IiAdaxaitii SKr.\ '' l.J4. When this appeal was called for heaiing, the respon- dent put before th<; court the iiut that since tlie appeal, the appellant had been adjudged in banlcruptcy uiuler the In- solvent law of Calcuita. The Judicial Committee then po'^t- poned the hearing for .six months, to enable the oihcial assignee in Insolvency in Calcn/td, to revive the appeal and prosecute the same ; and in default, the appeal to be dis- missed ; and directed the respondent to serve a notice to that effect on the official assignee in India. No step having been taken by the official assignee within the time limited for prosecution, their Lordships refused a further extension of time, and dismissed the appeal. OBJECTION TO THE KiGHT OF See Practick : iisdem verbis. RESTORATIOX OF CllnWDHY v. .Mir.LICIC ^ 155. This appeal had been dismissed for ^vant of proseou- tiou. The Judicial Committee granted leave to restore the 1 Lower Canada, 1870 Nov. 26, VII Mooic h. S. 263. 2 Calcuita, 1857 June 15, XI Moore 76. 3 Bengal, 1837 Feb. 10, 1 Mooju -104. in AIM'KAL 11 Hill ,;:J IIKNTORITIOX OF ai)i>i'al bofuust' the court below had consolidated it with another ajjpeal in the .same cause, which was still pending'. /n re -Ml TTV v. Hajam \{n\ ' 150. Leave oiyeu to restore an appeal dismissed ibr want ol' proseciition, the transcript having been received in Enu'land only alter the expiration of a year and day I'rom the time of the allowance of the appeal, and the respondent havin<»'. in consequence thereof, obtained an order of dismis- sal. Diligence on the jiart of appellant Avas shewn. (iri)AIilll U I'lHSIIAD TeWASSKK V. .MooSl'MAT .SoONDEUKun.MASKI'; '' 1")7. Appeal restored after being- dismissed for want of eli'ectiial prosecution Avithin the time limited by the iifth rub' of the Order in Count.'il of the 13th of June 18;>;3 ; the neAV rules havina" been only receuth'^ adopted by the Sudder court of Culrutta, and the appellant in ignorance of tludr existence, being engaged in taking- steps to proseciite the appeal within the time and according to the practice previously exi.sting. 8eti) Luchmeechuxd v. Seto Zorawuk .Mi;ll ' 158. Appeal from the Sudder court, in India, which stood dismissed under Rule 5 of the Order in Council of the 13th June 1H53. for want of effectual prosecution, restored, as the appellant Avas in ignorance of the existence of the neAV Rules. 159. Where goA'ernmeut securities for the due prosecuting of the appeal and costs Avere deposited in the registry of the Sudder court, the Judicial Committee in restoring- the appeal dispensed Avith the usual recognizance in lilngland. I{a\ee Hi kuuksimixdree Debiaii v. R.\.iah Pran Kishex Simj * IGD. lu circumstances showing conflicting and opposite decisions by the Sudder court upon the same question at issue, betAveeu the same parties, an appeal treated under the Statute 8th and 9th Vict., eh. 30, sec. 2, as abandoned for non-prosecution, was restored upon terms of paying costs and undertaking to lodge cases forthAvith, and to lodge security or a bond in Eufrland, to the amount of j£500. 161. Where an appeal has beeu treated as abandoned by 1 Bengal, 1839 Feb. 12, III Moore II. 2 Calcutta, 1854 June 29, IX Moore 8G. 3 Agra. 1854 Nov. 30. IX Moore 351. 4 Bengal, 1857 May 9, XI Moore 152. APPEAL 115 RENTOK.%TIOX OV statuti! above cited, their Lordships have no power to grant h'ave to institutes a neAV appeal ; they only have a disv'retiou to allow the original appeal to he restored. KaNKK III UUiiSiKiNDllKE 1)IHIAII V. I{.\,IAII I'llAN KlHsllKN SiNd ' 162. llestoration ol" an appeal allowed, upon eondition of the api)ellant lodging' in Kii'ilainl security for costs of the appeal. Six months alter, the ri'spondt'ut applied to dismiss the appeal by reason of the non-performance of the condition. As it appeared that the appellant's agent was in daily ex- pet'ttition of funds from India, the case was, upon the ap- pellant paying costs of the day, ordered to stand over for three months, for the appellant to perform that condition ; on failure thereof, the appeal to stand dismissed. HaNEK Ullt.lomTrEE v. PKUTAlIt SlN(i - 163. This appeal had been dismissed for want of prosecu- tion and was restored under circumstances showing that the intert-st of infants was materially allet ted, bu< upon con- dition that the appeal shouhl be jnosecuted within a given time, the appellant paying the costs of the application and giving fresh security. However, Iheir Lordships said that they did not mean to go the length of saying that where infants art> concerned, any degree^ of delay may be considered justihable or excusable, or such as may ]>e passed over ; as there may be circumstances so strong as to prevent iufauty from being an apology or an excuse. See Appe.a.l : time for appealing'. SECl'RITY IS Cambernon v. Egroionard. " 164. The court below is th(» sole judge of the sufficiency of the security to be given for the due prosecution of an appeal. Where that court has refused to allow an appeal on account of the insufficiency of the security tendered, the Privy Council will not alloAV one to be instituted. See re- marks of Lord Brougham, III Moore 26. ("raio v. Siiam) * 165. An appeal was noted on the 2nd day of May and the petition was presented on the loth. On the 14th day of the same month, the mode of giving security was changed by 1 Bengfil, 1857 Dec, 7, XI Moore 304. 2 Calcutta, 1860 June 15, XIII Moore 405. 3 Mauritiua, ISIfO Feb. 20, I Knixi)p251. 4 Demerara, 1830 Feb. 20, I Kiiapp 2")3. m ii lit; AlTl-AJi I'il NM'I'KITY I.'V the proper iiuthorilit's. the proclamiitiou to take eftoot I'rora th«' iMih. It was ht'lil l)y the Jmlieial Cominitteo that this ai)pt'al should bt- proseiuted according to the previous prac- tic. I'oWELi, V. Wasiiuiun ' Kit!. The appt'lhuit, as stM'urity in api)i'al, tendered his own bond which was, npon a rule lo show cause duly allowed. I'endiiiy the appeal, the appellant died, and the api)eal Avas duly revived against the executors. Apjdication that re(luded the respondenls Irom objecting no-w to the ibrin of the bond, and that their api)earance to the order of revivor prevented the court imposing terms on the appellant. Mil. IS.vim.v L'.vuKE, ]). l'U4 : — IW tlie Iltiii '' projier security," usi'd ill tlie Canadii Act. 154 (Jco. Ill, c. -, s. ;i5, and wiiicii jirovides for aj)|K'iii.s to tills ("oiirt, we slioidd certainly uiider.staud .•M'ciirily witli proper sureties. Now tliero is iieitiu'r surety nor principal to the lioiidin tlu- event tiiatlias iia|ipenetl, viz., the deatii of theoiiligor, U8 he alone was liable to the ])enalties. Tlie court below and the ajipellant. however, were satisfied with the instrument in tliat form; for it apj)ears that a rule nisi U; show cause wliy the security so tendered should not be allowed, was uranteil, served on the res- pondent, and subsequently made ab.solute. It is tO(j late now there- fore to question tiie proj)riety of the terms of the bond. The i)roper course to have taken, woukl have been to have moved to dismiss tlie a])peal uj)on the death of the appellant, when we could have im- posed terms; but the ap])earance to the order of revivor ijrcoludos that courrio now, and wo must dismiss tiiis petition. I.NOI.IS V. DE HaRNAHI) '' 167. Appeal allowed though the security for prosecuting the same had not been perfei;ted in due time, such omission being occasioned by the susi)ension and removal of the judges in the colony, and the imperfect constitution of the court in consequence thereof. HULM V. IIULM ' 108. The security to be given in appeal to Her Majesty cannot be arbitrary fixed by the cotirt beloAV. 109. Where in an ap]H'al from a sentence in a suit for divorce a vinculo, the Supreme Court, at Mauritius, had fixed 1 Upper Canada, 1838 Dec. 14, II Moore 199. 2 St. Lucia, 1841 June 20, III Moore 425. 3 Mauritius, 1843 June 16, IV Moore 2G2. AIM'KAL lit NM'l'UITV IW Iht' siMurity at €2.100, the .Tudifiiil C'oimuiltfO rcductMl it to X;JOO lor t'OMts bt'lovv ami in appeal. In re V,v.o\u,v. n.\HNKTT ' 170. licavc to ai)pt'al \vas uranti'd althouu'h tlicrt' wiis iiii iiitt'i-iiu'diatiMourt oI'l'hTor in the colony. whtTf the judunn'iit niii^'ht have be brouii'lit on appcnl. Their LordshipH allowed the appeal on special grounds and on the upplieant giving security. TlIK AtTuUNKY riKNKH.Vr, l>r TIIK fsi.K (IK A[.\N V. Cn\VI,KY ' 171. The Attorney General oi' the Isle of Man, as the ehiel" law oiUrer of the Crown in the Ishind. is not required, in an iijipeal to the Queen in Council, to give security lor costs of appeal. IUNEK BlU.IiiIUTTKK V. {'KIlTAlll SlN'tl " 172. Where an apjieal is dismissed lor want ol" i)rose(U- tion the security entered into in the court below is vaciited, and upon the restoration ol' the ai)peal, IVesh security will be required to be given in Eiii-laiifi. Hos.VKM. v. KlIJtnU.N * 1 73. Upon petition ol' the respondent, the sum ordered to be de[>osited I'or setairitj' I'or respoudent'.s costs, was incrc-ased, on account ol'the length of the transcnipt ol" the proceedings in the court below. JidllKKTSOX V. DiM.MIKSQ" 174. Leave to appeal Avas granted to the Ciroverument of the colony on a matter of Petitiou of Right without giving security for costs. In re Tnt; Attorney riKNEiiAi, for VicToia.v " 17'). Leave to apjunil in several actions in the nature of Petitiou of Right against the Crown was granted to the Attorney Greneral of Vi<'toria, without the necessity of giving security, provided all the appeals be consolidated into oue. Wehster v. Power ' 170. By an order of the Supreme court leave to ai>peal was allowed on condition of giving security with'.n three 1 Jamaica, 1844 \ov. 29, IV Moore 453. 2 Isle of Man, 18!)9 June 30, XII Moore 27. 3 Calcutta, 18G0 June 15, XIII Moore 465. 4 Lower Canada, 18G0 June 15, XIII .Moore 4"ti. 5 New South Wales, 1804 Feli. (>, II Moore N. S. 80. Victoria. 18G0 June 10, III .Moore N. S. 527. 7 Victoria, 1860 June 18, HI Moore N. S. 531. 118 APPEAL SECIRITY IX mouths. The appellants at first oifered to deposit money to the amount recjiiired, but afterwards a serurity Bond was approved by the Master oi" the (;ourt, and, withoiit olijec- tiou by the dei< ndants, i'yled as of record; but in conse- queni-e of obj a + 'ous afterwards taken by the defendants' solicitors to the *'ompetency of the proposed sureties, the Bond was not fyled within three months. Upon a motion by the defendants to set aside the leave to appeal iipon that ground, the Sixpreme court made an order revoking the leave given. In such circumstances their Lordships upon petition, gave special leave to appeal on security being given. NPEt'IAl, APPl.ICATIOXN TO l*L\ST India Co. v. Am.v ' 177. "Where a party has lost his right of appealing accord- ing to the charter of a court below, through the errroneous construction of it by that co\irt, the Privy Council will, upon special petition, grant leave to ap]H^al. SiKMEXs v. The JIeirs of Dlfe '' 178. An appeal was allowed from a sentence of the Lieu- tenant Grovernor of the Island of Heligoland, the sentence having been passed without hearing the appellant's case. 170. Execution of sentence ordering a distribution of the l)roperty in dispute ordered to be stayed, pending the appeal, and security ordered to be given. Ex parte KENsix(iToN ' 180. No leave of appeal Avill be granted when the pe- tition shoAVs merely grounds of a technical character, and not attecting the merits. Sl'EAKMAN V. The IvVST JnUIA J?AII,\VAY Co.MI'AXV * 181. The sum claimed was under the appealable valiie. The questions for decision depended upon the special con- tract for the sale of the coals and the facts of the case. Under those circumstances leave so appeal was refused. Lyall v. Jardine '" 182. "Where, on the evidence submitted to the court below, the order was properly made, no appeal will lie on 1 Madras, 1820 May 22, 1 Knapp 331 Note. 2 Heligoland, 18515 July 26. XI .Mooie (52. 3 Leeward Islands, 181)3 June 18, XV Moore 209. 4 Pengal, 18U9 Feb. 22, XX Law Times N. S. 501. 5 Hong Kong, 1870 July 7, VII Mooie .V. S. lUi. APl'KAL 119 NPEC'IAI. APPUCATIOXH TO the groixud that facts existed which would, if known to that court, have led to a different order beiug made, those facts not having been submitted to the court. In re Skinner ' 183. Special leave to appeal allowed from an Order of the High coixrt of judicature by which a minor was taken from the custody of her mother, a Mahomedan, on the ground, that the minor's deceased father had been a pro- fessed Christian, and her mother, who was, as the court held, living in adultery, was inducing her daughter to adopt the faith and habits of a Mahomedan. The right of the mother to see her daughter at suitable times was re- served to be regulated by the court below. The Speaker of the Leuislative Assembly ok Victoria V. Glass ' 184. Special leave to appeal granted on the ground, that the question raised was one of public interest, involving the constitutional rights of a colonial assembly. Ou re- versing the order of the court below no costs were given, as the appeal "was only allowed to decide the abstract ques- tion. Credit I''oncier ok Ivvoland v. Amy ; and IJaily v. Amy ' 185. The liquidation of an insolvent bank was referred to a Juge coinmissaire by the Royal i-ourt to ascertain the claims under the colonial Act of 1867. The claim of appel- lant Baily was fixed at je56,G06, and, subsequently on the re])ort of the commissaire an act of composition between the bank and its creditors was (confirmed. Leave to appeal was granted to the bank and Baily ; the appeal to be limited to certain points determined by their Lordships. Johnson v. The ArtM.sTER and Trustees ov St. Anddew's Church, Montreal * 186. The amount at issue was under the appealable value, the object of the appeal was the construction and effect of private contract for the occupation of a pew in a church. Leave to a])peal refused. 1 Intlia, 1870 Dec. 5, Vli Moore N. S 200. 2 Victoria, 1871 Jun. 3, Vtl .Moore. N. H. 450. :! Jorgey, 1874 Dec. 8, L. 1{. VI I'. C. 14ii. 4 S. C. Quebec, 1877 Feb. 10, L. K. Ill Appeal Cases 159. 120 APPEAL NPKC-IAE. AI'I'MtATIOXN TO MoLSON V. Cauter ' IS*!. Their Lordships will not, aocordiug to their usual Ijractice, grant special leave to appeal unless they see clearly that there had been some miscarriage in point ol" law, or very gross miscarriage in the two courts, whose concirrrent Judgments are under ai)peal, on the matters oi' I'act. PlUXOE V. (taunon " 188. No appeal to the Privy Council will be admitted from the Supreme court ol' Canada except in causes " ol" " gravity, involving matter of public interest or some im- " port ant question ol' law, or aiiecting ])roperty of cou- '• siderable amoimt, or Avhere the case is otherwise of some " public imi)ortance or of a very substantial character." -Appeal refused, although it was a case of disputed facts whether a deed of ,£1000 was a sale or a gift. See Appeal : in eltction cases. i" . The ifoNTREAi. CiTV Passenger Eailw.vy v. PARKi.R ' 189. The appellant was condemned by the 8ttperior court to i)ay a sum of money to the respondent for damages done to him l)y the rails of the company being in bad order. The court of A]>iieal reversed the judgment and dismssed the action, and the Supreme cottrt found for the plaiutitl' and reversed the judgment of the court of Qiteen's Bench. The Judicial Committee refused spei'ial leave to appeal on the ground that the case depended on a question oi' fact. The whole report is given here as it illustrates the judg- ment of their Lordships : ifr. Jititic said the acliuii was lircitiu'lit fur jiei'soiial injurios ai;'ainst tlio iluiitrcal City Passdiiii'i' J'aiiway coinjiauy. 'flic cause ot'action was that the ropoiulciil was ti'avciliii!^- in a wai^oii ihroii^li tlie streets of ^loiitreal, and acro^.s the track of llu' railway, and the wagfi'on in wliieli ho was, oaiigiit tlu' rail in some manner and lie was throwii out of it. Lord FiT/.iiEKAi.D. — Is tlieiv any (piestion of anioimt? ill', ■k'idii . — No. my loi'd. The cpiestion is one of law, and of eon- siderahle impoftanve to the railways in Canada. Tiiat is tlie pfiijxi- hition which i shall have to conti'iidfor, and what J wii^h to sliow is this, that the learned jud<;e of the court helow in tlie first instance never decided the ease on the facts at all, Imt decided it on what I siihniit is clearly an I'rroiieous |iriiici[ile of law of veiy eonsideraljU- 1 ■ 1 1 Quebec, 1880 Xov. 27. 2 S. C. Uiinadii, 1SS2 Nov. 2.5, L. I!. VIII Appeal Cases 103. 3 S. C. tjiiebee, UHr, Xov. V.\. appj:al 121 tiPKt'IAI. APPLU'ATIOXN TO imjiortiinoo indood. Wliat lio hold was that this coinpaiiy, bein<^ ifoverned l)y a liy-hiw and hy a jn'ovision of an act ofParlianK'nt the by-hiw must ])ivvail. Tho liy-law jirovidcd that tlic i'aihva\- shall bo liable tor aooidonts oausod by the obsti-iicti(jn inado by jilaoing tho rails ill tho streets, and the aet oljjarlianient ])rovidod tliat llio i-ails should bo laid down in a partieular Avay. The view ol' tho J'ailway eoniijany (and on whieh they liave acted) is this: That if they make their railway through the streets according to tho provision of an act of Parliament they are not liable for accidonts caused by their rails being so constructed, and tliat the provisiim in the by- law which malces them liable in all cases ])ractically is subjected to the express provision of tho act of Parliament, which says that they must lay down their rails in a particular way. If they do lay down their rails in that way they are not liable for tlio rails being so laid down. That is why 1 say the court of Hrst instance ilocided wrongly in liolding tliat the c()m])any was liable for tho accident causeil apart from negligence. The learned judge did not decide on the real tacts at all, that is to say, on the ([uestion of negligence on the jiai't of the dotondants, but ho decidotl it on an err(jneous jii'inciplo of law. Then the case wont to the court of .Vpi)oal, and there they decided the facts by four t o one lii favor of the I'aihvay com])any that there was no negligence. It then went to tho Supremo court, which decided the question of fact tho other wav J t was a case of considerable hardship on the I'ailway company, tor the jutlgo in the court of tii'st instance heard tho evidence and ])ron<)unced no ojtinion u])on the facts, but wont wi'ong in his law, and the court of Ap])eal on that E MoNTUfiAL V. LeS HcCLiSlASTIQlES DC Sfi.MI.XAIRE DE St. iS^LI'ICE I)E MoXTRfiAI, ' 193. Petition for special leave to appeal from a judgment of the Supreme court of Canada exempting the respondents from payment of a tax specially assessed by the appellant corporation, refused ; the exemption being under statute which the judgment did not appear to have construed erroneously. Lord Watson, p. G(J2 : — It is the duty of their Lordships to advise Her Majesty in the exercise of her prerogative, and in the discharge of that duty tliey are bound to apply their Judicial dis- cretion to tlic particular facts and circumstances of each case as presented to them. In forming an opinion as to the propriety of 1 Quebec, 1887 June 18, LVII Law Times X. S. 317. 2 Quebec, 1888 July 26, L. R. XIII Appeal Cases 782. 3 S. C. Canada 1889, July 27, L. R. XIV Appeal Cases 180. 124 Al'PHAIi 'WM HP»:<'IAI. Al'PMi'ATIOXM TO allowinn- till iip|H'iil, tlu'v must iiocoMsarily ivly In a viTv ifreat cxti'iit upon tln' stati'inonts coiitainrd in tlio lu'tilion willi rojj;anl to the inijiDTt and ctlc'Ct of judiiinent cMinijdaimMl of, and the roa.son.s tlv'in allo,i,'i.'il tor tivatinif it as an oxcoptional one. and perniitting .'1 brought under review. J'lxjierienee lias sliewn that great r;r. .'iwi ' required in aeeepting tliese reasons when they are not ■'.I ;_, .-!.!; lantiated, or do not ajipear to he prmut /nci'e estalilisheil by roferenee to tlie ]ietitioner's statement of the main tiiets of the '.asc, and tiir (questions oflaw tf) wliieii tiiese give rise. Cases vary so wi ' "'y in *' I • eireumstanees that lhe])ri]ieiples upon wliieh an appeal ought to he nlinved do not aihnit of anytliing approaeliing to exiiaustive dcHuition. Xo rule can lie laid down whieli would not nei'essarily he suhjeet to future (]Uaiitieation, and an attempt to formulate uiiy sueli rule might tliei'efore ])rove misleading. Jn some cases, as in I'rinci; v. Gngnon '. their Loi-dships have had occasion to indicate certain jiarticulars, tlie ahsence of which will iiave a strong influence in inducing them to advise tlnit leave sliould not he given, hut it hy no means follows that leave will he recommended in all cases in which these features occur. A case may be of a substantial charactei', may involve matter of great jjublic interest, and may raise an important (piestion oflaw, and yet the juilgment from which leave to appeal is sougiit may appear to be j)lainly right, or at least to be unattended witli sufficient doui)t to justity their Loi'peal Avill be dismissed if not prosecuted Avithin a reasonable time. Lord Wynkord, p. 0:5: — There is an established rule, that if an ap])eal be granted the Jiarty must bring that a])peal to a liearing within one year, unless he obtains further time for the prosecution of it from this Board, and the respondent may call up(m us to dismiss the appeal on accoimt of tlie delay in presenting it. This rule lias never j-et been extended to a case wliere the appeal has been refused by tlie colonial court. It is to be hoped that aj)peals will rarelj-, if ever, be refused to jiarties who have any jiretcnce of interest. The King is anxious tliat complete justice should be done to all the inhabitants of the provinces belonging to his empire, and has directed the Governors of tl.ose provinces to alloM- appeals to himself in council. Should, however, a case occur in which an appeal has been refused, and the parly has neglected to follow up the ap|)eal allowed on petition to the' King fiir an unreasonable time, we shall feel it oiirduly to recommend his Majesty to dismiss it. 1 See iil)ovc. 2 CiipL' of Good Hope, ISliO July 17. I Knupp S3. APPEAL 125 time fok appkamxg. Muter v. Ciiu'ciiask ' 195. By the colonial statute of the Island of St. Lucia, the delay Ibv a])i)ealiug Irom any decree or seiiteiue Ironi the court of Admiralty is limited to twelve mouths. The qiiestion was Avhether the Judicial Committee had the power to extend the time I'or ai)peal, the case was a proper case to exercice their Lordships' discretion. Mu. Bauon Paukk, p. 215 : — All tlii-ir Lordhliips arc of opinion that thoy arc conciiKloil I13' the soclion of the act roforrod tu, unlewH the conditions there specified have been complied with. St. Lolls V. St. Ijoiis '' 196. By the " .Tiidicattxre Act " in Lower Canada, it was enacted that in all cases where an appeal is alloAved hy law to the Privy Council, it must be lodged Avithin one year from the date of the judgment of the court beloAV, and further that Avithin fifteen months immediately after the alloAA^ance of the appeal, the ai)i)ellant shall fyle in the court of Appeal of the province, a certilicate signed by the clerk of the Privy Council that such appeal has been lodged and proceedings had thereon. The appellants having ne- glected to ])ring their appeal and fyled their certilicate Avithin the delay prescribed, the respondent petitioned for the dismissal of the appeal. Their Lordships held that the rule limiting the period of ap])eal in the Privy Council to a year and a day, though usually adhered to is not imjierative. 197. The party complaining of delay should not himself lie by and be guilty of delay ; if he does so, he has no ilaim to be heard. The a})peal may be alloAA^ed to proceed on sutii- cieut cavises shewn. La[.\(i \. L\(aiA.M ' 198. Leave to appeal against a decision pronounced in 1819, and iu which no step had been taken for tAVo years, preAnous to the ajiplication, refused. LuiiD Broi-gham, ]). 27 : — Their Lordships arc all of opinion tiiiil this application is too late. It is not a question of the sufficioncv of the security ottered in the court below; of that, that court would be the .sole judge: Camberton v. E(jroi guard, (1 Ki\u2)p, P. C. Cases, 2.")!), but whether, two years having- elajised without any proceeding- being taken, the Crown sliail now be let in to dispute a decision proiKjunced in 1819. There is no greater right in the Crown, in a 1 St. Lucia. 1836 May 30, I Moore 1. 2 Lower Canada, 183G Xov. 2D, I Moore 143. 3 Mauritius, 1839 Dec. 5, ill Moore 2G. 12G APl^EAL TIMK F4»R APPKAM\». ijfoiioriil ciiHc involviii^f its interoMts, to come in after such a delay, than tliore would lie in any ordinary sul>ject. The qucHtion involved is certainly one of great importance, but it may be raised in another case ; it is too late to re-open this. IIenperson v. Henderson ' 109. lu Newt'ouiidlaiid, au ai>peal to the Privy Council miisit be taken withiu I'ourteeu clays from the liual judg- meut. 200. lu a oase ^vhere the party appealing was resident in England, had no representative in the colony, and was inlormed of the decree after the expiration of the delay, leave of appeal was granted. The (Jueen v. Joze Alves Dus. The '• AQi;ir..\ " ' 201. Appeal from a judgment of the Vit^e-Admiralty Court of St. Helena must be taken within fifteen days from the judgment. On a petition from the proctor of seizor under the Slave Trade Act for leave of appeal the appeal not having l)een taken Avithiu the proper delay on account of the prottor's ignorance of the rule, leave was given, subject to a counter-petition in contestation. Upon the presentation of sitih counter-petition leave of appeal was cancelled the grotmd not appearing sufficient. In re Mishadee M.vhomed Cazu.w Siieii.\zee ^ 202. Although the judgment of the court below had been partially carried into execvition, and the time for appealing had exjnred, leave of appeal was granted, but on condition of not disturbing the possession or title of the purchasers of the real estate sold under the authority of the judgment, ot giving security for costs, and of al)idiug by any further order of the Committee. In re Harciiet ' 203. After a delay of six years from the date of the judg- ments of the court below, the Judicial Committee refused to grant leave to apjieal, no suflicient explanation being given to account for the petitioner's laches. Graham v. Berry ^ 204. The question was one of construction of statute and of public interest, and leave to appeal Avas granted, although the time for appealing had expired. 1 Ncwfouiidhnd, 184:^ .Tunc IC, IV Moore 259. 2 V. A. St. Helena, 1849 June 22, VI Moore 102. 3 Bomljay, 1852 April 24, VII Moore H91. 4 Guernsey, 1857 July 21, X Mooro 5.33. 5 N. S. Wales, 1805 March 14, III .Moore N. S. 208, APPEAL 12^ TIMK rOR APPRAIJNO. TlIK " M(EANI)EU'" ' 205. Although admittiug" the ncicssity ol' adhering to the dehiy fixed by the rules lor ai)i)ealiiig to the .ludicial Com- mittee, this latter is not hound l)y them and Avill grant leave to ai)peal Avhenever the administration ol' justice may require it. Lr»RD CnEL.MsKoRi). ]). 4.') : — It is dosirabk' to adhere witli some strictiK'ss to tlu' rules which iiave lioi'ii ostalilishcd for liiniting the time of ajipealinii; u{>oii the various matters hroiiiilil hetorL' this Court ; liut tlioir Lonisliij)> an- always ready to grant an indulgent reia.xation of tiiom wiii-rc justice a])])cars to thcni to demand it, and they arc not restrained cither by statutoiy authority- or Ity pc rem j)t o ry pract ice. Cas.v.nov.v v. The (^ieex. The • liicvitiiii Schmidt" ' 206. The reason why the appellant did not lodge his appeal Avithin the delay AVas that he AA'as Avaiting until a similar ease, the "Laura," Avhirh Avas then before the Judi- cial Committee, had beiMi decided. Leave to ajjjieal granted ou giving security and paying the present api)lication. 'i'liE •■ ]}iuxH[Li).\ ■' ■' 20*7. According to the 25th Rule of the Admiralty court, under order in Council of 27th June 1832. the time for appealing from any dei-ree of Vice-admiralty coxxrts. is limited to " lifteeu days after the date of the decree." Held, that these Avords do not mean after the date Avhen the decree is draAvn up in Avriting, l)ut after the date on Avhich the decree or sentence is pronounced by the Vice- admiraltA' court. * ArrEARANCE eodem Vfibo. APRROrRIATIUN imjiutatioii. ARBITRATOR Set Pr.\ctice See Payment La tllE Dl CHE.MIX DE KER DE MONTREAL. OtTAWA POWKRKOF BoiJRGOm A", ET Occidental ° 208. Under the '' Raihvtrij Act, 1868, an aAvard by arbitra- tors giving to an expropriated party, as compensation for 1 Admiralty. 1802 .July IG. 1 .Moore N. S. 45. 38r>. 2 Admiralty, ISGii Fel). 12, 12 .Tur. N. S. 127. 3 V. Admiralty, 1881 March 15, XLV Law Times N. S. 4 See The Vke-Admiralti/ Courts Act 1863,. 26 Vict. cli. 24 and its nmendiiiciits by 30 & 31 Vict. cli. 45, and Williams and Bruce, Adm. Prnctico, p. M?.. See also TJie Colonial Courts of Admiral ti/ Act 1800, 53 & 54 Vict. ch. 27. 5 Quebec, 1880 Feb. 26, L. I{. V Appeal Cases 381. I«if il 12ft AJ{Hrn?AT01{ powi:km of linul and all other damages, the sum oi" ^B'tfilS, plus $100 ]H!r month from date payabUi on the lirst of eaeh month, until the Company expropriating shall havi' set I'ree a certain ■svaterconrse serving to drain a c^uarry adjacent to the expro- l)riated land, and shall have constructed a culvert to protect the said watercourse, is invalid upon the face of it : lo. " Because it was not i-ompetent to the arbitrators to iraijose the payment of a rent or ix'riodical sum at all..,." " It is the duty of the arbitrators to iixas compensation such *' a gross sum or sums as Avould be cai)al)le of biMug i)aid or " tendered at once to the parties entitled to the same " ; intact their award Avas in the nature of an asses.sment of damages payable in Juluro. 2o. Bei-axise the aAvard makes the monthly payment con- tingent on the completion and erection of certain works, and then introduces an element of \incertainty which would of itself be a fatal objiMtion to the award. 3o. Because it gives direction to the Company to restore the watercourse in a particular manner, by the construc- tion of a culvert. V. 893 : — ■■ It is notAvithin the functions of the arbitrators " to prescribe how the company Avas to relieve it.self from " its obligation, or to cast upon them the con.struction ol' a " ('ulvert which possibly might not be necessary. 209. It AA'as also held that the objectionable part of the aAvard Avas not severable from the part allowing to the appelants the siam of §35, 013. Sir Ja.mks W. Coi.vri-r.K, p. SliO: — Tin' inalorial jtassig-e in the u\vanl,ap()ii wiiieh llie wiiolc question turns, is that wlioroby the arbi- trators, after stating that tlioy iiad proceeded to assess \he compen- sation to be paid by tlie Company to tiie a])])cllants for tlio piece of land descrilied. and for all tlic damages resulting from tiie taking possession of the same, and bail visited the said piece of land, and estimated witii care and establislicd the value of it, and the amount of the said damages, proeeoiled to award: — " The sum of ^;{r),()i;{, pi(/s8100 per montli from this ihite, payable on the tirst of en"b month, until the said Coni])any shall have .set free the watercourse serving to drain the quarries adjacent to the ex2)ropriated land, and constructed a culvert to protect the said watercourse, as being the amount of compensation to be paid by tlic said Montreal Northern Colonization Railway (Company, now called •■ tlie Montreal, Ottawa, and Western Railway ('omjiiiny," to the said " Bourgoin et Fils" and " Jiourgoin and Lamontagne" for the saic. piece oi' land, and for all the damages resulting from the possession o*' the same." The objection taken to the award is now confined to that portion of the passage just quoted, which includes and folloAvs the Avord I id id AJ{HITl{ATOli 121) POWKItN OF " plus, ' iiiid rolati's to wliiit tlu" arhitnitorH nocm to have considcml iiH wholly or in iiurt the roiniiciisiitioii diK" to tiio !ii»]i('lliiiitH in rospwt lit' that portion of tlii'ir fliiiin whirh was compri'lu-ndod in tho words of its 4th hoad. and claimed daniagfs for tho watorcourhe |iavalili' in fut uro, mid (lnc> not lit miy imiiii nf vimv fall williiii llu' |provi>ioii,s ol ilic Ad. A fiiillii'i' iilijrciion to tliis |)arl of lIic award is, thaf it inalcL's tlio iiioMiiilv jiaviiu'iil colli iii;,'(iil oil till' coiniili'lioii ami ercctiou of (•(■riaiii worivs, and thus introduces an cicnicnt of uncertainty which would iif itself lie a liital olijection to the award. That it is oiicn to the iiliji'iiion o| iiiKcrlainiN- is shown l>v 111 le ohsi'i'vations w hich h ia\e lieell i| Uolei trolll til IK lyineiil ot Mr. .lustici! Tcssier, who decided in tavmir i.f ihc a|iiicllaMt>. Tlu' li'arned .Indite, p. Kt.'i, lino 20. assumes tliat if the culvert i> not eonstrucled the annual suii' will continue to he payaMe, not only to the appellants and thei assion>. Imt to the reveiMoner, Mrs. Smith. Tlie learned L'oiin^t.. ir the aiipcllaiils repiulialecl that construction; Imt tlie fact that it w;is pii! Ii_\- till' Icariii'd .Indue ujion the document goestojirovc that thert' is >onic de:,M'c(' of iincerlaini y in the award. Attain, thedura- ird. Af^aiii, t he dura- tion of the appcllanl's interest is uncertain, in that they helil their lease with the power ot' rciu'wing it so lonj^ as any stono remained to lie worked. Tlu'V miiihl tlius proloni;' the time during which tho monthly Mini would he payahle, li}' omitting to work tlio stone, although no doiiht the Comjiany would have the i)ower to j it an end to their lialiilily liy doing the work's [ire^ci'iiicd. Lastly, there seems to their Lordships to he a fatal ohjection to the award in the direction to the Company to restore the watercourse ill a particular manner, and that l)y the construction of u culver Tb ey conce ivc that it was not witiiin the functions of the ariiitrator; to presenile liow the company was to relievo itself from the statu- tory oMigation imposed U]ion it hy the (ith suli-s<'ction of tho 7th section, or to cast upon them the construction cf a culvert whicli ])ossiMy might not he necessary. Thtur Lortlsliips eomnuMitod iii)oii the t'oUowiiiy aiithoii- tios : (iretit Western Coiii/xini/ v. Hub// et al., \2 (^. B. Ep. Can. lOG, 114. r21, Vdl: Chemin defer UranU Central v. Rebuis, Sire//, lleiueil General 1858, p. 831. The only remaining ([uestiou to he considered is one which was suggested in the collide of the argument, viz., whether the ohjec- tionalilc part of the award is scverahle from that which awards to the ap|)cllant tin -.im of g:J5,l)i;{, so that the apiiellaiit may recover that, waiving their right to tho rest of the eomi)oiiHUtion awarded. The point was never taken in tho Canadian Courts, no otter of waiver was made there, and it maybe (piesstioniihlo whether that point can now, for tho tirst time, he raised here. AHsuming, how- ever, that it is open to the appellants, their Lordships are of ojunioii that the award is not J tlie appe severuulo in the manner siiicgestctl, the com- pensation improjicrly awarded Ijoing comhiiied as it is with that which wa- iimperly awarded, and Loth declared to he '• lo montunt " do la compensation -X Otre payde, pour lo dit morcoau do terro, ct '• ])oiir tons les do., inages resultant de la |)ossossion d'icelui." And if they were severed, a (piobtiou might ari.'jo, as Mr. Bonjaniin luu M =«Wi|mMtaMM- AHMrnjATOll 131 i><»wi:hn nv iU'niii'il, wlictlior tluMiward woiilil not lie dcH'ctivc^ in that it failcil todi'al fully wilii "iii" dCiIu' (iiiostioiH Milnuittcil to tlio iirlntralors, viz,, tiic aiiioiuit of conipcnsalion 0.*iirKVKM. l{oi,r,ANi) V, Lassiov ' 211). Arbitrators who art; also ^\\^\>o\'[U'd nnnahles com/iosi- (eiifx may, uiidt'r art. i:54tj C. C. P., di.s|)('nsi^ with the strirt obsmvaiictf ol' thoso rules of law, tht) iiou-ohsorvaufe of whirh as ai)|)lit'd to awards results iu no more than irregu- larity ; hut they eaiinot Ix! arbitrary iu their dodliugs with the parties or disres^ard all law Ilinvever, wheu such arbitrators in good faith obtained from oiu! of the parties in the a])seu( c, l)uttothe knoAvledge of the other, correct information as to the law bearing upon the case before them, it Avas uot au irregularity capable of vitiating the award. TiiK K.\Ri, oi'.Ski.iiounk, ]). "72 : — Tlioir Lonlsiiips would, nodoultt, ht'sitati' much ln't'orc thc-y imld that to entitli- arhitrators named as amiables I'oin/iosileurs to F superintcnilonco of an ardiitect selected bv the employer, the buildei- is exoinj)tt'd i'roin tlio liability Avliicli would otherwise attach to Vn\. It is therefore luiiiecessary to examine the French authoriticH on winch the learned counsel for the ai)pellant relied in order to establish this pro})osition, whether they are cases decided on the old law of France, or on article 1792 of the Code Napoleon, which (it may be observed) is not identical in its terms with article 1088 of the Civil Code of Canada. It has, however, been argued on behalf of the appellant that, ad- mittinjf the authority of i^rojt'n v. iawne to its fullest extent, the case under apj)eal is not to be governed bj' it, inasmuch as the faulty construction in this case was in the foimdation laid by Brown and AVatson, and that the appellant cannot be held liable for the detects in their work. This is, in fact, the ground on which Mr, .Justice Caron dissented from the judgment of the other Judges of the Court of Queen's Bench. Their Lordships have not been altf)getlier free from doulit on this ])(jint ; but, after a full coiisiileration of the learnetl and able argu- ments and of the authorities which have been adduced, they have come to the conclusion that the judgment untler ajipeal is correct, and ought to be affirmed. The broad general rule of law established by the case of Brown V. Laurie — "' the rule certain for architects and liuilders in the execution of the work entrusted to tlion, " is that there is annexed to the contract, by force of law, a warranty ot the solidity »t' the building that it shall stand for ten years at least. It was not ex- pressly decided whether this was to be taken as an absolute war- ranty, or with on implied exception o<' eases in which the laiilding gives wa}', within the time, wholly or in i)art, from causes that could not have been iliscovered oi' removetl by due vigilance ami com- petent skill. But this at least was exjiressly decided that tbe ap- ])roval and direction of a supervising architect, or his omission to ascertain the nature of tJie soil of the foundation, by known and available tests, does not exonerate the builder from the conseiiuences of following such direction, or of building on the foundation without making himself sure of its sufficiency. When there has been a breach of warranty of the stability of the building, the onus is on the builder to show that he is exempted from liability, by s(une exception in his favour. It is of primary im- portance that he shtjidd make sureof the suJficiency of the foundation on which he proceeds to build, for, without a sutticient foundation, the warranty coukl not be kept. It is an inseparable incident, an essential part of the warranty ; the warranty of stability of the edifice includes, by necessary imjylication, the warranty of sufficiency of foundation ; and such is the law as explaineil in Brown v. Laurie. The architect and buiUler are therefore bound to provide whatever is essential to the stabilitj' warranted. The exemption from res])onsibdity, on the part of the builder, for the breach of warranty, must be nuule out (if at all) by legal im- ])lieation. There is not in the Code any express exception in favour of the builder; and there is innie in his contract. "'luMiiiM ARCJI1T1<:CT AXJ) C'OXTJ^VCTOR IM.") RESPONSIBILITY OF The exemption for wliic-h the appolhint eoutomls is, in fiu-t, ihat whothor tlic foundation was altogothor insiiffifiont ; ■wiictlior it was C'onstructetl Avithout the use of known and available tests for aseer- taininiy the nature of tlie soil ; wliatever may have heen the amount of ney another who was under no obligation to do more than to reali/,e what the architect had designed, or even what the entployer alone may have directed. The French authorities relied on by the ap|)ellant, exclusive of such iis are inconsistent witii what has licen tlecided in Brown vs. Laurie, or such as are under the Code Xa])oleon, may l)e reduced to those which Mr. Justice Caron has selected in support of his Judg- menl. It is im])ortant, moreover, to keep in mind that the authorities which exonerate the builder from responsibility for a breach of the warranty, when he acts under the guidance of an architect, are scl aside in Brown vs. Laurie, on accouni of the importance of ]trotecting property and life, which makes it strictly reusonal)le to maintain the res|)onsil)ility of architect and builder alike. Accordingly, if the builder thinks tit to trust to the vigilance or skill of tlie" architect, without the indeiiendent exercise of his own judgment, he acts at his own risk. lie cannot escape from liability when he has omitted to use such known and proper precaution as* he ought to have used if he had had the sole and undivided responsibility. If, then, for the i)urposo of public safety, the builder cannot act upon the design and under the direction of the architect, except u])on his own responsibility for the consequences, how can it he consisteni- ly maintained that he can, without incurring any such respon>iiiility adopt and act upon the le. Whatever may be said as to '" vices de construction " in buildings where separate constructors have been employed, and the responsi- bility of each f)f the constructors have been contined to his own separate part of the work, no authority has been referred to which shows that the contractor, who is the builder of the editice, has been exempted from full responsibility, when it was practicable tor him to have ascertained beforehand, liy the use of known and available tests, a defect that atfects the stability of the building which he has contracted to erect. The case on which most reliance has been placed on behalf of the appellant is Lambert's case, reported in Denisart's collection of new decisions (Vol. iii page 313, ed. l7>^-i.) In that case an architect pre- pared a plan of a house, which Lambert (a baker at Marseilles) ai)])r<)ved. A mason contracted to build according to this plan. The building had lieen raised to the tirst stoiy, luider the supervision of the architect, who perceived the incapacity of the mason, and caused the contract to lie rescinded, and a new agreement was made with another mason to finish the work. This mason, under the guidance of the architect, tinished the work. The house soon after fell down. The public prosecutor instituted proceedings before the Judges of Police, who condemned the tirst mascm to pay a tine of 1,000 livres, and suspended him for three years. They acquitted the architect. The experts who tirst inspected the premises during these pro- ceeilings, reported that the walls of the foundation were iwiiifloml ; that too soft stones had been used, and that the mortar was thin. A second set of exjierts added that the fall of the house was due exclu- sively to the fault of the first mason. The second mason then sued the employer in the Civic C^ourt of Marseilles for compensation tor his work and labour, and also for damages for the loss of his tools, iVc, which had been lo.st in the ruins. The employer cited the architect and the first mason in cjarantk. AECHITECT AND CONTEAC'TOE 137 RESPONSIBIMTY OF The Court condemned the employer to pay the second mason the amount due tor his work, and also damage lor the loss of his tools, and it also condemned the architect and the tirst mason to guarantee the owner from this condemnation, as well as from the damages Hutt'ered by him from the fall of the house. Tlie architect appealed against the sentence, which was confirmed by the Parliament Of Aix (24th of May 1740), except as to the damages suttered from the fall of the house. There is not a report of the arguments used, or of the reasons on which the judgment proceeded. The second muson, who wat not employed to rebuild, but merely to finish the erection of the house, may not have been taken to be a builder of the edifice, subject to full' res])onsibilit,y within the meaning of the law of warranty. It was not shown that the default of the first mason was such as the second mason ought to have detected before he began to do his own work The second report of the experts is rather to the contrary. TI;^ ..ppoul was on behalf of the architect only; as all who were interested had been made parties to the proceedings, their equities, inter se, were adjusted according to the merits. The principal defiiuUer — the original contractor for building the house — was held responsible as well to the public as to the parties who 8ufi:ered by his defiiult. No rule or principle of law can be safely collected from this Eeport, that could or ought to have been considered as authoritative in set- tling the law of Lower Canada otherwise than as it has been settled in the i)rescnt case, in which theliability of the architect, or of Brown and Watson, has not been put in issue. It is not necessary for their Lordshijis to consider what ought to have been the ruling of the Courts hi Lower Canada, if the sinking of the tower, and the consequent damage, had been .shown to have l)een caused by a latent defect in the work done before the date of the contract of the appellant and which he could not by the exercise of care and skill have discovered. It plainly appears that, when he contracted to build the Cathedral, and accepted the foundation at Ins own estimate of its value as the basis of his work, he had the means of knowing the nature of the soil ; he had the dimensions of the foun- dation ; he had the plans of the architect before him, and he must be taken to have known the nature and special character of the structure he was about to erect. Applying his scientific knowledge to the subject, he ought to have known that this foundation Avas insufficient. Their Lordships, therefore, are of opinion that under the law of Canada he is liable, just as he must have been if he had in terms contracted tu build from the ground on the bare site. The parties concerned have proceeded on what proved to be a common error, but this cannot alter the rule of law. To use the language of Lord Mansfield as to a rule .somewhat analogous, "At first the rule appears to be hard, but it is settled on principles of policy, and when once established, every man contracts with refer- ence to it, and there is no hardship at all. " (3 Dougl. E. 390.) The contract here has been drawn up so as not to contain any express provision with a view to exclude or modify the full responsibility I I 4;?'' i:w A l{( ' 1 1 1 T KCT A X I ) ( 'ONT H ACTO U ftJIil k "■ KKSPOXNIBIMTY OF impiiHcd !)}• the law on tlu' iii)|)(.'llinit. It ^U|KT!uklfi spefial clauses, protective of the employer, liy wliieh he is exonerato.l I'rom coiitiii- ^eiil liabilities. The appellant must he assumed to have known the law wiien he entered into the contract. AVhatever the hardshij) of the case may he, it is not within the province of their Lordship.s to ri'lieve. Their duty is to decide what the law in by w'hich the case must lie si'overned. The ]>rincipal jioint iieing thus decided ajrainst the appelliiiit.they do not think it necessary to say more on tlie subordinate questions, and es])ecia!lyon iliat relating to theCaen st(me, than that they agree with the Canadian Courts in their conclusion on these l)oiiits, and in the reasons by whicji it is snjiported. Their Lordships will, therefore, humbly advise Jler Majesty that the judgment ap]iealed from ought to be atHrmed, and the appeal be dismissed with . ASSESSMENT EXKHPTIOX. il-WOR A\n CORI'ORATLON OF KsSEXnE.V V. BlACIvWOOU ' 212. In Victoria, lands the property of Her Majesty, "vvhiih is unoci'upied or used for public purposes, and lands in the occupation of the CroAvn or the Grovernment of Victoria, are exempted from taxation. 213. A race lourse demised by the Crown to the res])on- dent and successors in the office of chairman of the Victoria liacing club, for ninety-nine years, for the purpose of establishing there such a race course, does not fall under the aljove exemption, and is a rateable property. »I«»Df: OF MV.\I('IFAI.. I'\vwcETT V. The Jlstices of J^omhay ' 214. By the statute 33 Geo. Ill, c. 52, s. 158, the toAvn of Bombtty has the right to make an assessment on the OAvners or occupiers of houses, buildings and grounds aciord- ing to the true and real anniial values thereof, for the making and repairing of streets of the town. Under this law, the Quarter Sessions at Bombni/ made a roll in which was assessed the annual value of a cotton factory. having fixed machinery ; the principle of this assessment was to impose the tax iipon the gross receipts, after making an allowance for the disbursements and for the profits. The Judicial Committee, quashing the roll, held that the assessment was made on an erroneous principle, the projier measure of rateable valtie of the building being not the gross receipt of the occupiers, but the rent that the bixilding might reasonably be expected to be let for, to a yearly tenant. 1 Victoria, 1877 Miiy 14, L. R. II Appeal Cases 571. 2 liombay, 1845 June 20, V .Moor' 143. 3-; I: ASSKSSMlvNT 139 modk of .wxk'ipai.. Lawless v. Sullivan ' 215. The tax imposed by 31 Vict. ch. 36, iu New Bmiiswitk, upon " income " must be levied on the balaut'e of gain over loss made iu the fiscal year, aud -where uo such balance of gaiu has beeu made there is uo income or fuud -which is ca])able of being assessed. 8ui MoNTAoi E K. .S.MiTii, p. 378 : — It iiiUHt always bo lionio in mind tiiut tiio tax is imposed on the income received (hiriiia; tlie liscalyear, and what therefore has to bo ascertained tor tlie purpose of assessment is the income for an entire year. There can be no reme Court, " contrary to the view of both Courts in the Province and to that of " the two French Judges in the Supreme Court, is correct, the jiower " of taxation of the municipalities in the Province of Quebec is greatly " limited, and that whether it is by law so limited is a question of " great and general importance." Their Lordships would not have made any reference to these initial proceedings, had it not been that, at the hearing of the appeal, their time was chiefly occupied by an endeavour on the part of the 142 ASSK.SSMKNT n\ KAII.WAYN. ii|i|)clliint Corporation to armio that, a.s matiur of I'act, thoy had not, in iiiiv of tlio yt-arly roils u])on wliich tliose asscHsnients Avcro niailo, viiiiii'il aii^ilit lli-yoiid tiic land oi'cu|iiod liy ti>e railway, and that tlioy did not dosiro to inc'liido, and had not included, the hridj^o or other supcrstriK'tures in the owtiniati'. Tlieir Lordships ]iur])OH('ly ahslain I'roni layini!; down any rule as to ihc jioinls which an appellant ma}- coniipctentiy raise under an api)eal liy leave from the Suj)renie Court of CiUKKhi." That must depend U|ion the special circumstances of each ease. Jhit it must he under>tood that j)arties who ii:et sudi leave, upon the distinct representation that they desire to raise a iiarticular question of law of f^reat ami ij;eneral importance, cannot he permitted, at the hearing ot the a]i]>eal, to change front and say tliat no such question arises, and to argue that the ease turns unon a (pu'stion of tad which the Su])reme Court has wrongly assumed or decided. If the apjiellant Corjioration, in ]ietitioi\ing for the exercise of ller Majesty's ja'crogative, had stated the .same ease which they attempted to j)resent in argument, it is almo.st matter of certainly that leave to appeal Avcjuld have heen refused. I'])on the construetion of the Mimicipal Acts, their Lordshijis entirely concur "n the view taken l)y Chief .Fustice llitchie. Section 'S2'i> of tlie General Act imj)oses ujion tl e valuators a]>pointcd hy tlie Council the duty of making a valuation of the " taxable propert}- of the municipality; " and hy the terms (^f Section 82(j no part of a rail- way is made taxable property, except the land, as land, occupied by the road. In their Lordships' opinion the enactment of Section ;^27, to the etfeet that, when the Company make no return, the valuation of all their immovable projierty shall be made in the same manner as that of any other ratepaj'er, refers to their immovable property already declared to be taxable, and sim|)ly amounts to a direction that the value of such taxable estate shall be estimated by the town's vahuitors instead of the company itself. The judgment of the Supreme Court ought, therefore, to be affirm- ed ; and their Lordships will humbly advise Iler Majesty to that effect. The appellants must pay the c(jsts of this appeal. ASSOCIATIONS JURISDICTION OF I'Ol'HTN OVERPKIVA'IK ANNOt'IATIOXS. Beown v. Les Clr^s et M.vRatii.r.ERs be i/tEuvaE et Fabriqie. DE XoTKE Dame de MoNxafiAi- ' 217. The civil courts of justice have jurisclictiou over private voluntary religious or other lawful associations, to- hear and determine complaints made by their members who may have been injured as to their rights, and to inquire into the law and rules of the tribunal or authority whit.-h has inflicted an alleged injury to one of his members. Sir Rouert Piiii.imoke, |). 2(I7 :— It seems, however, to theii' Lord- ships to be unnecessary to pursue this question, because even if this 1 Quebec, 1374 Nov. 21, L. R. VI P. C. 157. AS.SK.SS.MKNT MB Jl'HINnil'TIOX OF COCItTN OVKK IMIIVATK ANMH'IATIOX. rliiircli wt'iv ti» la' rcgiirdod iiicrt'ly as a privati' and vi'liintary rt'linii)iis society rcstiiiij; only ii)mih a consenHUal liasis, Courts ot' .liisticf arc still hound, when diic complaint is made, that a member of the society has lieen injiirt'd as to his rii^hts. in any matter of a mixed s|)irit\ial and temjioral character, to in(inire into the laws or rules of the tribunal or autiiority which has intlicicd tiie allege(l injmy. In the case of Lowj v. Bislioj) of Cope Town, their Iion|shi|is said: "The Church of Knjrlanil, in places where tliere is no church estahiished by law, is in the same situation with any other reli!j,iou^ body — in no better, but in no worse jHisilion ; anil the memlicr> may adopt, as tiie members of any other commission may ado])t. rides for I'nforcing discijjline within their body which will be binding on those who, expressly or b}- implication, Jiave assented to them. It may be further laid d(nvu that wlierc any religiouH or other lawful association has not only agreed on the terms of its union, but has also constituted a trilmnal to determine whether the rules of the association have been violated by any of its members or not ; and what shall be the C()nse(iuencc of such violation ; tlic decision of sucl» tribunal will be binding when it has acted within the scope of its au- thority, has observed such forms as the rules re(juire, if any forms be ])rcscribed, and, if not, has proceeded in a maimer consonant with the princi])les of justice ' Lord- if this See Insurance. See Insolvency. ASSUliANCE ASSIGNEE ATTACHMENT See Garnishee, Registration : effect of Writ of Fieri Faciaa. ATTORNEY riNI.N'O, NVNPKXniXn, or NrillKIXtil ATTORXKYS off the ROM. for coxte.npt or .mim'0!« dv'i' oh niMONOicv. ilii'i't'. Now, ii(l\'i('aU's i!IkI iilluriu'vs have alwnyn liccii adiiiilli'd in llic Coliiiiial ('i)iirl- \>y llu^ .liul^fs, and llic .Iiidgi's nnly. Tlic powiT ol'siisjicnding from jirai'lici' iniiht, we lliink, he incicU'nial to llial of adniilling to |)rarlicr, an in the cuhi' in Kiigiand witli regard to attor- ncVH. In Antigua tlu' c'haracfi'i'H of advocates and altomevs are given to one per-on : the Coiii't thi'refore tiiat confers holii ciinraetei may for just caiiHc taiit- iiolh away. Altlioiigii iniU'cd oiir own Coin Is do not dis-ljar for tlii' ri'ason I liave mentioned, 1 hiive no douhl th«'y might ]ire\ent a harrister.wlio had acted disliont'stiy I'rom jiractising iiefore tliem, In a cane which came iiefore its a sliorl time ago from Momijiiy, none of tlie memhers ol'tiiis Hoard doiiiit tiiat the .Supreme (Joiirt there had authority to jiri'vcnt I'lngli-li liarristcrs to practise iiel'ore them. The (jiiestion was wlictlier their authority had h(^en properly exercised. Whilst advocates in liie Colonics have an a))peal to His Majesty, the |)owor to remove them i'roin ])raclice can never he ahu.'iud. In re .Mo.nckton ' 219. An attorney in rriiue Ed"\varcl Island having Ween arrested i'or debt claimed his jmvilege as jiracti sing attorney and Avas discharged, >)iit at the same time by an ex parte judgment he was suspended by the «hiet' justice, This judgment was set aside, as, il' he Avas not entitled to his i)Ti- vilege as a bona Jide practising attorney, he ought not to have been ]n'otected, if on the contrary, he had right to be set at liberty, he ought not to have been suspended. ivMEiisoN v. The .Iuuoes of Newkoumola- . ' I id' the • • nisi lor iisconduct. w striking 220. The Judicial Committee reversed the jr court of Newfoundland, declaring absolute striking an attorney otf the roll of that court !< The rule AVas iirst granted by the court l)t the name of ai)pellant from the l{oll, unless cause 1 the contrary be shown in four days, and at the expiration of the four days, an ap})lication to extend the delay was j>ray«'d for, but AVas refused and the rule declared absolute. This application on the i)art of the appellant should have been granted as the api)ellant had estal)lislied that it AVas neces- sary to enable him to i)repare his defen<'e. Bunny v. Tiik Jidoks of Nkw Zeai..vm) ■' 221. The Supreme court at New Zealand suspended the appellant as a practising attorney, on the petition of another barrister, because the appellant had been sued in England, 1 Piiiice Edward's Island, 1837 June 22, 1 .Moore •).'),'). 2 Newfoundland, 1854 Feb. IG, VIII Moore if)". 3 New Zealand, 1802 Feb. U, XV Moore 104. ATTOU.NKV iir» IK HOI.I. iiulti'd ill lie pnwiT (I that of to iitlor- iirc^ivoii •111 may 'dill Is (1)1 iil>t tlu'y iractihing ago from Siiprcmf I ]iractiso liail liwK all a]i{K:al ■an iK'ViT CKTON ' ing been Hltoniey L ex parte •e. This o his pri- hi not to >ht to })e I (ll'tllO nisi lor •uiulnft. sti'king t the i-alion of prayt'd . This ^ivc been i!S nei-es- \1.AN1> ided the another n gland, ri.\i:«4J, Ni'Mi>i:\i»i\T oit mi.h« oiviii « t. ■wht'i'o he Avas fonnerly prat'tisiiio' lis solicitor, and av chiuni'd willi I'laiid and niisrondtift in his jji-olcshioiial rhaiactcr. The Judge gave him a year to (!stiil)lish hi-l'ore tlit^ court that the charges against him were unfoumh'd. The appellant not having nuule any i)ronf of his innocence Avitliin Ihc yeiiv, the court struck him oil tlic roll. The .Judicial Committee held thai the l)arrister, petilioiier, had an interest to sustain his i)etition and coiilirmcd the judgment. In re \V.\i,i,.\ck ' 222. A Judgment suspending an attorney of the Supreme court of Nova Srotiit, from practising in Uiat court, hecause, having been unsuccessfuU in a cause in Avhich In^ was \H>r- sonally intt'resled, he had Avritlen a letter to the Chier Justice, commenting on the judges and llu' administration of justice generally in lh(! court, reversed l)y the Judicial Committee, as it substituted a penalty and inodi^ of punish- ment Avhich was not the appropriate iind litting punishment for the oU'ence. liOlil) Wksthiuy, |i. 1.5(1 — This idler was a conleinpt of court, wiiicii il WHS hardly |iossiMe t ir IhtM'oiirl to omit tal\iii;.i;('i)M;tii/j|ii('e of. It was an otleiice, lioviver, commilted hy an individual in his (;a](aeily of a suitor in rosjicct of liis sU|ipo.sed rijihts as a suitor, and of an iintif;iiiary injury doiu to liini as a suitor ; and il hiai no con- iieelion whatever with his ]ir )fessional character, or anything' done liy him professionally, either as an advoeati' or an attoriay. It was a conleinpt of Court eommitled hy an individual in his personal ehar- aeliT only. To otlenees of tlial kind there has heen attached hy law and hy l'>iig practice a detinite kind of punishment, viz., tine and imprison- ment. It must not, however. 1)0 supposed that a Court of .Justice has not the jiower to remove Iho oflicers of the Court, if untit to he intrusted with a professional s/rt^Mi and eharaeter. If an advocate, for e\-ami)le, were fouml ,ii;uilly of crime, there is no douht that Iho coiirl would suspend him. If an attorney he found guilty of moral deliiKiueney in his private character, there is no douht that he may ho struck otf tlie Roll. But in this particular case there is no tliiirtum hroughl forwanl or assigned, exce|)t that which results from the fad of addressing an improjier and contem|>luous h-Ker to ihe Chief .Iiistice of the (!oiirt, in ri'S|iect of som(>thing supposed to have heen done unjuslly to tlic writer in his private capaciiy as a suitor. We think, therefore, there was no necessity for the judges to go further than to award to that offence the customary punisliment for contempt of court. \Vc do not find anything which rend((rs it expedient for the public interest, or right tor the (Jourt to interfere with the status of the indiv-idual as a practitioner in that court. In 1 Nova Scotia, 1860 Nov. 2, IV Mooie N. a. 140. 10 I in A'lTolLNKV w FI.\I.\<^ NINPKNni.N'G. OK STItllil.Mii ATTOIIXEYS OFF TlIK IM»M^ FOIt <'OXTt:.MI''r OK MI.S4 O.M>l'<"r. tlial rc'spuct. tlK'i'i'foi'c. wr tliiiilv iliat tlic .Imluos (l(']iarto(l tVoiii the (•()lU•^ie whic-li ought tn liiivo \uvd. \>y iulii|)tiii 1< it was il ])imish- hich act. linlU'l' ol' I.AKD ' le fdui't withoxil it, liued I'mitts ol ■e whih' I by tli«' tixte, 3rd , and the that the /ere not istituted been so, s stated. being -liil»s ilo fiiiont, no ■riniinal listiiK'tly [ART ' attorney ted in a eration 'y the witness that no lass. On FIXIXU, NU.HPKXniXti, OR NTKIKIXG ATTORXEYH OFF THE KOM. FOR COSTKMPT OR MIS<<»XDl« T. api)eal, this jvidgment was reversed, the Judicial Committee being of oi)iniou, that ahiiongh the j)re|)aratiou oi' sneh deed, and the knoAvledge of such facts, "would be circums- tau'H's of great Aveight against an attorney cognizant of them in the event of such a deed, upon or soon after its execution, being used as an instrument of fraud, yet, as the circumstances of its prejtaration were capal)le of being ex})!aiiied, and no fraudulent use of the instrument had been made or attempted, no fraudulent notice alleged, and no injury directly or indirectly occasioned by it, the mis- statement upon the i'aee of such a deed could not be t'onsi- dered sulli(;ient in itself to warrant the striking an attorney ott' the IvoU of the court. In re IJamsvy ' 2f..j. A judye of the court of Queen's Bench, in Lower CaiKuhi. Avhilst sittinu' alone in the exercise of the criminal jurisdiction, has, under the authority conferred on him )>y section 72 of ch. 77 of the Consolidated Statutes of Canada, no power to prououiu'e a conn.sel in coutemj)t, for publishing- two letters reflecting ujion the conduct of such j\idge in his ollicial capacity or to imjiose a line ; the matter being one cognizable by the full court only. 220. It Avas irregular on the ])art of this judge to issue himself the rule for contemi>t, without any evidence that the appellant had committed the contempt. From their Lordships' rei-dut: — TIio Lords of the Committee, in oboclienee to your AlaJL'sty's said order of reference, have taken this ])e1ition into consideration, and. liaving lieard counsel on liehalf of Thomas Kennedy Ramsay (the Ilonoralile Mr. .liistiee Drummond not havinii- a|)]ieaivd or lodn-ed a case) their Lordsliijis do ay-ive Iniinlily to report to your ^[ajoty that in their judgment tlie Ifonoralile Mr. .lustiee l)runiinond Aliilst sitting alone in the exercise of the criminal jurisdiction confenvd upontln- .Iudi;-es of the Court of Queen's JJench by the 77th of the Consolidated .Statutes of Canada, had no authority to issue the Kule of the 2:!rd October. ]8()(), or to adjiidue thai Thomas Jvennedy Jlamsay had been senility of a conlem])t of Court in |iublishin,i!,' the two letters of the 27th day of Auy-usi. and the IJUth day of Au,ii;usi, lS(j(J, or to impose a line of forty dollars ujion the said Thomas Kennet:\i>ixn, ok mtkiui^'o attor\eyn off thk kom, FOR <'OX'rK.MI*T OK MiNt'oxn(:«"r. 1)0 taken lu'luro the i'liU Court (jf (Queen's JkMich : Their Lord- shi|)s are also of opinion that the proeoeclings against the said Tlioinas Kennedy lianisay were in othei resjjocts most irregularly eondneted. The Kule of the 25th of S< pieml'tir, 18(i(j. was issiu'd without any evidenee that the said Tlionias Kennedy Eiinisay was the ])erson who had written and published the letters, and the only evidenee whieh was ever oi^tainod of the said Thomas Kennedy Eamsay having written the letters, consisted of an admission, in writing, made hy the said Thomas Kennedy Eamsay at the instance of the Haiti Honorable Mr. Justice Drumniond, for the purpose of settling the disj)Ute between them, and which, if not accepted as a sutlicicnt apology, ought toliave lieen treated as written without prejudice. On the whole their Lordships humbly report to Your Majesty that although there are ex])ressions in the letters of the Maid Thomas J\ennedy Jiamsay of which tlieir Lordships canncf a|)prove and of which the Honorable Mr. Justice DrumnKmd had a right to complain, yet that, for the reasons above stated, in the 0]miion of their Lordshijis the tine of $-H) im})Osed upon the said Thomas Kenneily J?amsay ought to l)e remitted." Her Majesty having taken the said report into consideration was pleased, by and with the advice of Her I'rivy Council, to approve thereof and to order, as it is hereby- ordered, that the said tine of $40 be remitted. Whereof the Governor-General, Lieutenant-Gover- nor, or Comniander-in-Chief of the Dominion of Canada for the time being and all other persons whom it may concern are to take notice and govern themselves accorilingly. Newton v. The Judges of the Hioh Court, North Western Provinces. ' 22V. Au order of the High court suspending an advocate from practising tor professional misconduct, reversed. Although the attorney had been guilty of serious miscon- ceptions of law, error of judgment and grave irregularity, there was nothing amounting to mala praxis on which the court could fairly found any proceeding of a penal character. 228. Their Lordships regretted that the judges of the High (>ourt should have thought fit to frame themselves new charg<>s against the accused advocate, and thus assume the functions of accuser and judge. A very strong and clear case may arise in which such a course would be jus- tified. But the inconvenience of it is great, and the more manifest in the present cause, inasmuch as the learned judges found thtnnselves obliged, in all but one instance, to abandon the charges which they themselves had on the first impression suggested and framed. 1 North Wcatern Provinces, 1871 Nov. 22, VIII Moore N. S. 202. 4- t ATTOENEY 149 POWKKM OF attor:»*i:y An mtem. The ship "Cmkton ' 229. "What is stated by the advocate of a party in the presence of, aud nncoutradicted by, the agent of that party, must be considered as if it had been stated by the party himself and is binding on both. Kino v. Pinsoneault '' 230. An attorney nd litem has the right to bind his clit ^t, until disavowed, by any proceeding in the cause, though taken without his client's authority, or even in defiance of his prohibition. 231. But " iransac lions'' are not acts of procedure Avithin the poAvers of attonn^ys, and are not binding iipon the client unless specially authorized l)y him. 232. Accordingly, a defendant having signed a deed of transactiou entered upon with the plaintiff's attorney, may revoke the agreement before the deed is ratified by the plaintiff himself. Nor can an attorney on his own authority settle a cause, abandon or compromise the rights of his client. Sir IlonERT i*. (.'olliek, ]). 25!> : — Their Lordships do not consider it ueoi'ssary or desirable lor the dctei'mination of the first of tliese questions, to inquire into the extent of the authority to settle causes of counsel, attorneys, or ])roetors in this country, founded, a.s it is, upon laws and customs in a j^reat dej^ree peculiar to oursolves. The law on this subject must be looked for in the Canadian Code, inter- ])rotfd, if its provisions are oI)scure, by the aid of what light can be thrown u]ion them by the French law. Mr. Justice Hadgley, in his learned judij;mont, intimates an opinion, (as their Lordsliips understand him) that the " transacticm " was invalid because it was not <;iven eft'ect to by a '^jiKjentent d'expidient,'' and in supjiort of the view he quotes the following passage from Pigeau, rroeedure Civile Vol. I. |)]). '.). liSO. The "transaction" by •' Jmjcuwnt d'cxpMicnt," with its formalities, which was only one form of '" transaction " according to the i^'rench law, has not been adopted or recognized in the Canadian Code, which (Iocs not require that a " transaction " shall be in any particular form, even if it consists in assenting to a Judgment. The passage from PI(jeau, however, is not unim])nrtant as bearing on tlie general authority of procureurs, for if they have not authority to consent to a judgment, it may be argue(l that they cannot have the power to 'icttle a cause, and to abaiuUm or comjiromise the riglit of their clients without one. Mr. Liiflawmr was both " acocat" and " nroiii." It does not appear, liowever, tluit tlie law gives any greater 1 Adniiinlty, 18:« .Inly 2, II Knapp 37."). ■i Queliec, 187.5 March 2, L. R. VI P. C. 245. 150 ATTOliXKY m 1 ;i "i H r. 1 n K l-ft ^ W. r 1 POWERN OF ATTORXKY AD MTKH. authurity in liis foi-inor lliiin Iio had in liis liittor Ciipacity. Iflio liad any ]>()\ver aiialoi^'ous to tliat of a counsel in England, to .settle a cause " in court," it is onough to say that it was not this jiowei" which he exei'cised ; his |)o\vor \va> nuM'ely that of an " at'oiid." No l'"renchaulhoi'ity has been cited which goes the longth ol'assert- ing that an " aroue " has a goiiei'al powei' to hind his client liy a '•transaction" such as the ])resent, an(l some French authorities have been cited which it is contciulcd establish the negative of this pro- position : 7J(f//(C, Jiepi'rfoire i/i'Jiirisjinii/cni'c, v TranmcHon, art. 4, s. 57; <-'iiili- <'iril. art. IH)'.>: Coi/c Xdjinleiin. art. IHs:!. It has been argued that if the inability decl.-ired by the i-'rench codi' to alienate and hy]>othecate without express ]>owers carried with ii the inability to "transact,'" the same words in the Canadian ("ode must have the same effect. The plaintiff seeks to ex])lain this jiassage as refci'ring only to the ])o\vers of ordinary mandataries, and having no reference to " aroue.'i " who are mandataries with extraordinaiy and exci'ptional powers. If, h(jwever, therein a class of mandatai'ies so well known to possess this exceptiontd power, the omissicm of all notice of it in the ]ilace where notice of it would have been a])i)i'0|)riate, or. indeed, inuny])art of the exhaustiv(> treatise of i)rf//oc concerning " Transar- ti'j.iti " is not a little remai'kable. The same doctrine is laid down in other boolcs of authority, ^n (iiii/ot. Ri'pertoirt! de Juri!acl." It is also t]-eatetl more succinctly in Dalhc \\ is there said that in general every act of a mandatary is void which I'xct'eds the bounds of his mandate, but that it is otherwise with mandataries ail Utiiit, who are in some sc^nse otHccrs of justice rejii'e.-enting citizens before the tribimals in the exercise of their ])rofession. lie thus sum np the law : " £n ej^i'.t,jmqiiaH iKmveAi toat artcdn luinis- " ierc de Varotie. mi(H to lie I'cmunerated for his services upon the same terms on ■which liieso services wei'eiX'ndei'ed to clients in (^uehec. The resj)ondent was engaged and uiRlertook to go lu Halifax as a (^uehec counsel, suhjeet to the same rule of his Bar hy which his conduct as a lawyer was regulated in (iuehec, and it would be a strange result if. retaining his fitatii.'i and jiei'fornung his woi'k as a niemlier of the t^ueliec Jiar, he was nevertheless to he strip|ied of the privileges attaching to that fituttis as soon as he entered the Province f)f Xova Scotia. Their Lordships do not consider it necessaiy lo notice t lie great variety of reasons assigned hy the learned judges of tlie Su[U'eme C'imrl in support of the views -which were severally adopted by them, with the exception of one ])oint raisi'd in the judgment of Mi'. Justice (iwyiine. That point is deserving of notice for this reas(jn — that if the opinion of the K'arned judge, which is based on the pro- vision.^ ol the I'etition of liiglit Act of Canada, lie well founded, the respondent, though he might have suit tor recovery of his fees from any sidijcct, could not recover them, In" petition, from the Crown. By a pardonable error. Mr. Justice (xwynne refers to the Act of 1S75, instead of the Petition ofliighl Canada Act, 1870 (;5i» Yict., c. '2.1). which rejiealed the statute of the ])revious year. Section 10, which is iilentical, in ex))ri'ssion, with the similar circumstances of the re])ealed act, ju'ovides '■ that lujthiug contained in this act shall give to the subject any remedy against the crown in unj' case in which he would not have lieeu entitled to such remedy in England, under similar cireiimstanees. by the laws in force there prior to the passing of the imjierial statute 'I'.i and 24 Vict., c. ','A." The learned judge seems to hold that these provisions jilace a (Quebec lawyer on perfectly the same footing as an Kngiish liarrister, so far as regiirds his right to jiroceed against the Crown for recovery of his fees. But it a])]iears to their Lordshijis that the jirocess of reasoning by which 1 lie learned judge arrives at that conclusion confounds two thing., which are essentially ditl'erenl — "right" and '■remedy." Tiie statute does not say that aQueiiec lawyer shall, in all ca.ses, have only the same right against the Crown as a member of the English bar. "What it does enact is that no subject in Canada shall be entitled to the •• remedy" jjrovided. unless lie has a legal claim, such as cimld have been eiitorced by ]ietition of right in Kngland ]n'ior to the .Im- jierial Act of the l!:]rd and 24lli Vicoria. It' is imjiossible to liold that a member of the (|Jueiiec Bar who. hy law and ju'actice, is permitted to sue ibr his fees, when he seeks his remedy against the Crown, under the Canadian Act of 1870, has no such legal claim, III =^ ATTOH.NKV l.w VAM'K OF NERVICKN. iiiul lliat lie >iu's undci' cii'ciiinNlaiici's similar to tiioso in wlucli Jiii Hiiu'lisli liin'i'istcr is ^ilacod wim, noiilu'i' ]>y the iisago of liis pro- ll'.s.sioii iiDT tlio law ot'iiis doniifik', can maintain any action tor his foos. NUMBEU OF I'OUNSICIi T(J UK lIKAltD. See PllACTICE : iisdeiii verbis. SoLiciTDWs ni:i-'(juE Till': Piavv C'ouxcil. ^ee VuxmcE: ihdein verbis. AUCTK )N. See Sale. CrAMixtr and AVauekixg. B SUMMARY c only 1 bar. led to could 10 Im- o liold CO, is a tlio claim, PAGES BAILMENT I See Bank and liAXKixn, Dkposit, Sale : irlmt coiixlilulcs a BANK AND BANICING AdVANCKS ox MKRCIIANDISE 157 i Baxkkhs' i-iEX 157 Branches - 158 licty op a iiank advancino money 158 ixtkrest payable iiy hankers 15s poweiis ok diuectous 15!t i'ov.eiis of maxageks 159 poiveus ok liqlidatohs ok iiaxks. S'-i; Acquiescence : jiouvr to ac- ReSPOXSIIIILITY op ranks as [lAlLKES IGl ReSI'OXSItiILITYOP a dank FOU ILLE- GAL AIlilKST IG'2 ResPOXSIHILITYOP A IIAXK MANAGER lO'J Retchxs 101! SECCHITY for OVEIIDUAWX ACCOUNTS 1G3 Transfer OP shares 164 BANKRUPTCY See Insolvexcy. BAR See Attorxey. PAGES BASTAP.I) See Legacy. Mahiiiage, Will. BKACIIKS .•fee Riparian rnniMUETous, River. BENEVOLENT SCXnKTV See Associations, Legislatup.k : lei/isliitive powers: iisdem verbis. BKTS See Gaming and Wager-ng. Bir,s See Sale, Gaming .nd Wagering. BILLS OF EXCHANGE Acceptance of 106 Cancellation op signaturi: 11)8 Collateral SKcuurrY 168 Discharge of indorsers or ac- ceptors 168 Drawn on agent 171 Nature of 171 Notice op dishonor 172 Payment with 172 Property in 172 1{e-exchange 173 Ifi6 SUMMAIiV PAIIEH RuillT OF IIOLDEII IT.'I KlOIITS AND OHMOATIONS ok INDDU- HBHH 171 SDSI'ICIUUS 180 WllKN NKdOTIAIlLK IHI HILLS OP LADING See AKFiiEUiirrMK.VT. HLOCKAnK See Intkiinatkinai, law : capture for breach of BOTTOMRY AND RESPONDKNTIA DUTIK8 OF PKR80N8 ADVANCINO MONEY u;; 183 Law (iovEitNiMi ikittomiiy con- TIIACT MAUK iN A KOIlKHiN POUT. See I.NTKIINATI0..\L LAW: Hadem verbis. LiKN KOIl UESPONDBSTIA OONI). See Salvaoe : lien on car;/ofor sal- vage service. Conditional hond Hir.nr ok masteu to kfkkot loans liOrNDAUV CoNsrnccTioN ok titles as to BRP;ACH of CONTRACT See Contract, Damaoe. liUILDKR Responsihilitv. See AnciiiTKCT AND Co.NTHACTOii ; iisdem verbis. BURIALS Ruiiri' TO ecclesiastical BY LAWS See CoiiPOiiATioN (municipal) ; POWEllSOK. BROKER Set Principal and auknt. 1H3 185 190 191 .^sUm BAILMENT See Bank and Bankincj. Dkposit, Sale: what consH/iiles a BANK AND BANKINO ADVAXfF.J* OSr MKUCHAXniNt: Ayeks v. Tiik Sui. rii Ai stuai.i.w Ij.vxKiNd Company ' 1. A banking tonipany incorporated by charter, -which contained a clause declaring- that it should not be huvlul for the company to advance money on the security of mer- chandise, may maintain an action for money advanced ou the faith of receiving as security a preferential lien on the wool of a certain quantity of sheep ou board a ship, but which was not in the actual possession of the party receiving the advances, though a part owner of the sheep and the agent of the other owners for whose benefit the advances had been made. The banking company were entitled to recover for the value of the wool on such preferential lien. Lord Mellish, p. -I-Kj : — Another objeetioii was taken by Mr. Mainsty on the terms of tlie charter, the chiuso in the charter which says, it shall not bo lawful for the bank to make advances on mer- chandise. Now, unquestionably, a great many que stions might be raised on the eti'ect of tliat elnnse in the charter \v'hi('li may be of very great importance, but which also being of greai uifficulty, their Lordships do not think it necessary to give any opinion upon. There may bo a question as to what are the transactions which come really within the clause, and whether this particular case does con\e within it. There may bo also a question whether under any circumstances, the etfect of violating such a provision is more tlian this, that the crown may take advantage of it as a forfeiture of the charter, but the only poi'.it it appears to their Lordships is necessary to be deter- mined in the present case is t lis, that whatever ett'ect such a clause may have, it does not prevent property passing, cither in goods or in lands, under a conveyance or instrument which, under the ordinary circumetances of law, would pass it. bankers' i^iex. London chartered Bank of Australia v. White ^ 2. Bankers have under common law a general lien on all secuiities deposited with them as bankers by a customer, 1 Soutli Austr.ilia, 1871 Feb. 2, VII Moore 432, 2 Victoria, 1879 May 23, L,. R. IV Appeal Cases 413. ir.R liAXK AM) HANKING "'I IIA.Mir.llV MKW. luilt'ss there he nil express eoiitniet or eireiUUstanees (hat show iiii implied eoiitriut ineonsisteiit Avith the lien. Brandao v. nanicti ^ nl. :i (". 15. .■).•;! ; 12 CI. \' 1'. 7ST, IIHA!VAYARI.K IIY IIAXUKRN. TyUNDOX CllAUTEIiEi) I)AN'K OP Al'STRAMA V. ^VlIITE * 6. Bankers improperly or Avithout title retaining money overpaid to them as mortgagees or bailees are chargeable AVith interest thereon. 1 New South AVales, 1878 Jnn. 24, L. R. Ill Appeal Cases 325. 2 Ciipe of Good Hope, 18.^8 Feb. 7, L. R. XIII Appeal Cases 215. 3 Upiier Canada, 18G5 July 27, XIII Law Times N. S. 105. 4 A'ictoria, 1879 May 27, L. R. IV Appeal Cases 413. •:i>Ali I'.AXK AND liANlvlNti l')!) 1M»WKKN OF IIIKM TOIIM. TiiK Hank i>v Ai stiiai.asia v. IliiEii.r.AT. ' 7. Amon^'st the yt'iitTiil powers wliich the (lircclovs td' a biiiik possess lor it> u'ood iKliiiiiiislriilioii. ure those of hor- rowinu,' money I'oi' hniiUiiiic purposes iukI ol' l»iiuiiiiy tin? Iniuk l)y si'jfniiiu' hills or notes h)r nionoy so borrowed, unless such power is ext'luded by the terms of their iii)i)ointm('nt. The WiiiiiT llnx, i', I'emiiehtox liEiun, \>. 1!I4 : - 'I'lien, is (lie natiire of a Ipiinkers liii-iiu'>s .-.iicii as tu exeliiile tlii^ power, Irom want of occasion for it> cxcrcix- ? (^iiite tlic contrary. 'I'lic njilurc ol a lianUcr s liu>nu'^ am I sUe exposes li.ni to siidiicn anil ininuMJialt tlemamls, wliicli nniy lie to tjic extent of a lari^'e ]ir"|iorlioii uf his (Iclits, while his jii'olils are to lie niiide in eiMployinj;' his own nioia'ys anil those entrusti'il to hnu in iliscoiintiny liiils, in loiuis, and othei" modi's of investment. It is imiios-ilije that hi^ shonid 'dwius h; ive h assets 111 Micl 1 .1 slate as to )iayment of al demands whiidi mav he made ip]ilic!ilile imnii'iiiaiely to ilie npon mm ami if a jiartner has no jiower niider sueh cireiimsta'iees, to Imrrow inoia-y for thu partnershi]), either the assent of each individual m iidier must he olitidned, which may often he imjiraetieahle, or tlu' concern must he ruined. AVi liavo no doilht al nil, thcretiife that, ni ordniary liainlaiiees, for his frauds, in the managvnient of such business: Muiliiiij V. Coiiiiiicrridl Bank of Nrw Brunswick, 5 J^aw JJi'p. V. 0. 3!)4. IJut the arrest, and still les,^ tlu' prosecution of offenders, is not within the ordinary routine of banking business, and when the question of a nia.nager's authority in such a case arine.s, it is essential to in(juire carefully into bis ])osition and duties. These niaj', and in ])racticc do, vary considei'ably. in a case of a chief or general manage)', investetl with general su])ervision ami ])ower to control, such an authority in cei'lain cases alfecting ihe property of the bank might be presumed from his jiosition to belopg to him, at least in the absence of the directors. The same pi'esunijition migh'. arise in the instance of a manager conducting the business of a branch bank at a distance from the lu'ad otUce and the board of directors... P. 200 : — An authority to be exercised oidy in cases of emer- gency, and derived from the exigency of the occi.sion, is evidently a limited one, and before it can arise a state of facts must exist which, shows that such exigency is present, or froni which it might reasonably be sup])oseil to bo jjresent. if a general authority is proved, it is enough to show, commonly, that the agent was acting in what he did on behalf of his princijjal. But in the cast^ of such ;i limited authority, as that referred to, the question whether the emergency existed, or might reasonably have been su|)posed to exist, arises for decision; and that questi-jn raises issues luyond the mere facts that the agi'ut acted on bidiaif of and in the su])posed interest of the ])riucipal ; were it otherwise, the sxjeeial authority would bo equivalent to a general ; Gof v. Great Northern Railwaij Co., ?> E. & K. i'u'l ; Edward,^ v. London & North Wa^tern Bailwaij Co., 5 L. J{. C. P. -l-ir) ; Moore v. Metrojiolitan Railweuj Co., 8 L. li. (l B. ;Ui; Poulton v. London & South We.'itern Eiiilwai/ Co., 2 L. H. (^ B. 535 ; .4/^.;/* d^ South Western liailway Co., G L. 1\. q. B. (iS. See also Principal and Agent : powers of agents. powr.R OF LKimnATORs OF BAMiK. ^'ee Acquiescence : jmver to acquiesce. r.AXK A XI) l!ANKIX(i 161 suoli a T tho exist, le more it crest )uld bo to the V their Roe ortlwrn Vciftcrn aij Co., ail Co., ii. (If). inncer HKSPOXNllilMTY or IIA.MiS AN IIAILKKS. (rlliMN V. Mc.Ml I.I.IN ' il. The tirtioii was in daiiiiiii'cs against a bank, lor the lo«s lliruuu'h its nuglin'cni-c of certain railway del)entures placed in their care by a customer, in the ordinary way ol' their busint!s.s. The debentures had been stolen by ihe cashier who made aAVay ^vith them. It was held l)y the i'rivy Council that the bank, as <>ia- ttiitous l)ailee8,Avere not botmd to exorcise more than ordinary care of •^lie deposits entrusted to them, and the neu'ligcnce lor wli'ch alone they would be made liable would have been th(^ want of that ordinary diligence Avhich a reasonably prudent man takes oT his own property ol' the like des- cription. J.ii>iui ( 'iiKi.MsroiU). |). 4il(i: — I'^'mn iIk' lime of iMrd J/olf'.s ceio- braled iiulii'ineiil in ('iii/ii.< v. Bernard', in which hi' cla^silicl and distiiiii'iii^hed tlie (Utlereiit degrees of noirlii;'cnce for wliich the dif- ferent Ivinds of haiiees are uns\veral)h>. tlie ne,ii;h<^'enet^ wliieh must he estalijished aicainst a gratuitous haik-e lias lieen caileil •• i;ro^s neglige nee." This term iiad lieen usi'd tVom lliat peiMoii, without t)l)jeetion as a sliort and convenient mode of deseriliin^' the dey'ree of iX'spou-ihihty whiidi atlaelies upon a haihe of lliis class. M hist, Lord Cranworfh (tlien Baron Rolfr). in tlie casi' ot IT/Aso/ivs Brrtt^, ohjeeted to it. sayini( that he " could see no dilfi-renee lielweeii iiegli- gcnee and ^toss iiegli<;-eiiee ; that it was tiie same thing, wilii the addition of a vitu|)erati\e epithet." And this critical oli>efv;itiou has heeii since a]iproveil ol' ti\- othef eminent judii'es. Of course, if inli'iidi'd as a en so lont;- in familiar us(> and has been sanctioned by ."-ueii liiiih autliorityas Lord Holt and tiir William Jnitvs in his •■ M-^say on tin' [jaw ol liailmcit.'' In the ease nY drill v. Tin' (Tcncral Iron Srrcir Collier Coinpani/'. .Mr. ii3, !10:). 3 .M. & W, 11,^, 4 Law I'vi'i). 1 (). 1'. (,i.i. 5 H .V: C. :i;iT. II tm BANK AND BAXKINfr t ■" RENPO^S'NAKII.ITY <»F IIAMiH AM BAILKEM. Justice ('roiiijiton, in dcliviTiiiy the ()])ijii()ii ol .siiid tliat tlii'i'c may lie ilillicult^' in ijcrininii ■[] K' OOU tinmi' '.vli liiit r(, said: '• 1 iitft'i «;rut> IWil I 1 IS, Imt ] IlliTfO II I tlif rcMuai'ic (if tln' Lord Cliiol' JJaron m tlii' I'ourt lielow, wlifi't.' hf says, " 'J'lii tl- is a lorlain dogrco of iiogiigi-noi' to ,'liicli every one attaches great hianie. It is a niislaUe to su|)jk)so llial liiii iii's ai'e no( dill'erent iieeause a sti'ict line o f del uarcatum 4'anno lurji t Ije drawn lietween tlieiii," and lie added '' for all praetieal tl Us I'l lo may lie stated to be, that tiie failure to exi'ivis reasonable care, skill, and diligence is " gross negligenee. Mr. Iiis- tice M&ntagiic Smith, in the ease in whieh the abo\-e-mentioned ob- servations of Mr. .lustiee Wilier wt'ix' made, said : "The use of t lie term " gross negligenee " is only one way of staling that less eare i^ re(|uired in s(jnie eases than in otliers, as in the ease of gi'aluiloiis liailei': aiu I it is more eorreet and si'ientilie to deline the eare tliaii the degrees ot n liii'enee. Tl le e|ii Ihet irros ret^'s oi is I'er- taiiily not without its signitieanee. The negligenee for which, ac- cording to Lord Holt, a gratuitous bailee incurs liability is such as to involve a lireach of eonfideiice or tru^l, not arising merely from some want ol' Joresiglil or mistake ot' Judgment, but fi'om sciiiu' cul- jialile default, Xo advantage would be gained by substituting a jio- sitivo Ibr a negative jihrase, because the ilegree of care and diligence Avhich a bailee must exercise corresponds with the degree ot negli- gence for which he is resjKinsible, and there would be the same tlittlculty in detining the extent of the iio>ilive duly in each case as the degree of neglect ot'it which incurs re>|)on>ibility. Jn truth, this dillicultv is inherent in the luiture of th lllKl tliuugh degrees of care are not delinable, thej' are witl e subject. I some aiiproach to certainty distinguishable; and in every case of tliis des- cription in which the evidence is lett lo the Jury, they must be \i^'i\ by acautious and discriminating direction of ibejudge lo distinguish, as well as they can, degrees of things which run nujie or Ic-^s into each other. RKSPOXNIIIIMTY OF A IIAXK FOK II,>,K(;AI, AHRCNT. AND B.\nkin(t ; /loivers of manuger. REMPOXNIBII.ITY OF A RAMi MAXAiiFR. i^tt li.\M< The Eank ok Ui-pkh ('.waha v. Bkahsii.vw ' 10. The appoDants were suing- their kite iiianager to re- cover money lost on bilLs of exchange and promissory notes which Avere discounted by hiin, while managing the bank, in favoring certain companies and linns in which he Avns interested. The evidence estal)lished that such transactions were all in the ordinary courst^ of the l)usiness of tlie bank ; that he had not exceeded the i)ower ;ind authority with which he was entrusted; and that he had not acted in bad faith in any case brought up in tlu' trial. 1 Lower Canuila, 1807 ,Iuiic 2G, IV .Mdoio X. S- -100. M BANK AND HANKING 1(53 suliji'cl, ih sDIlir lliis dt's- 1,0 lo.l |iiiguisli, et;s into 1)ANK ll.WV to re- [c notes bunk, ic was lutioiiis hiiuk ; with 1111 biul RF,Nl>OXN.\IIIMTY OF A IIAXK MAXA4JEII. Tho .Tudi(-'ial Committee, alHrmiug the judgments oi' both courts beloAV, held, under the eireumstanecs, that no such action could l)e sustaiiuid, aud that the bank should bear the losses. The appeal Avas dismissed with costs. IIF.TIIIXS. I!an'k 01' Africa v. Thk t'oMiM.'.r, (Joverxment ' 11. A bank note in circulation ordinarily means a note "which is x>'issing IVoni hand to hand as a uegociable ins- trumeiit representing a certain value. Wheu it is returned to the bank Iroiii Avhich it A\'as issued it i-eases to circiilate as there is no longer any person entitled to require i^aymeut from the bank which can canci'l it or re-issue it. 12. The word '•outstanding"" is still more significant than " in circulation," and points to an engagement or liability of the ))ank. 13. Accordins' io these principles, where a laiv obliges the banks to make a monthly return of bank-notes " in cir- citlation "" as " outstiiiidiug,"' they are not ol^liged to include the bank-notes in tli»-ir possession or in the possession of their branches. »i;sri^:it 4>r miiakicn. H-SNK iiK M().\rl!KAI. v. SWKK.NKV ' IG. The I'cspoiulciit Avas proprietor of sharos in a com- mercial corporation which shares Avere into the possession of a trustee. This hitter transler"d the shares in iiaynient of his own private debts to the apjieUaut bank which had notice of th"se facts and knew that the respondent hehl them in trust only. The Judicial (.'omniittee held that by such knowiedu'e tlie duty Avas i-ast upon the l)ank to refuse to take the property until they had ascertained that the trustee AA'as authorized to transfer the shares ; and luiA'ing neglected to do so. the bank was now obliged to account for the si'uie to the oAA'iier. liiiiti) IlAi.siiiuv, ]>. SI: — Tlioir Lord-iliijjs cKiisidcr il to lie prnsi'd 111 tliis case tliat .IJo.-o lield llie dis|iuled .-^liares ii|)(>m a Irast not discloscil liy tlie eiili'v in the ( 'uinpany s liooks ; thai lie trans- ferred them to tin' liank in liroaeii of las liaist ; tliat at tlie lime of tlu' transfer the J)!iuU kni'W of IJoso's position ; and that the plaint itt' tnriis oiil to 1)0 the ]iersoii in wiiosc finor the I nisi e.\ist(Ml. Il was ariiiiod for the apjielianis liial these ihinysare nol proved, becau-e they ro(piirc ;i wriittn cojiunciirrDii-nf e i^'eiillenu'ii may he Ljuilly of nothing- more than a misiake of law. NiH' do ihey lliiiik it necessary to exiiinine how tar the re- lations hetweeii iio>e and the jilainlitf may have resembled or (lillered from llio^e of an finglish trustee and Ins heneticiary. or lo on into the bnii'lish doctrines of coi;strucli\'e fraud, or con-truclive notice. The P>ank had exiiress notice that a- regards the property trans- ferred to ihcin b'ose >tood to some person in the relation ex|)ressed )iy Ihe words • in trust. " and the only (piestion is what , (', 7;). HAXK AND liAXKIXG 105 TKAXNFKK OF NIIAKKN. ill Bank it tlio In not Hiinlv, islako tlu' ro- iVci-cd n into iioiico. I rans- a-ciisl wi'onii; \- (il'dc- liosc's el tlu'V clianan linilinu; r IVoni lain tlic Tlicir Tionlslii^is aro led to tliis concl llSKlll liy llio onliriiiry nilo: )f' just ICC ib l)ctwccn man and man, and tlic ordinary cx])ectations of mankind in (ransacliiii; tlicir atl'aii'.'s. If in(k'ciicln'c law wliicli alisolutcly forhadc tiiat |)i'()|icJ'ty >liould l)c |iiacc(l in tlic name of a ]ici'son, witli a simallancous notice ]irovidin_i^ his power over it slnmld not lie aksoiule but restricted, that wonkl control tlicir (k'cision. That view lias boon pressed upon them from the bar with g-reat ability and force, but, as they hoM, without authority to support it. Tlu^ authorities cited relate to mnii- ildtairoi jiritc-iKiiiis and ai'e to eti'ect that, when once property has iieen iilaci'i I under the di uninion o fsuch an aiieiit, third jpai'l ics nuu- safely deal with liim alone, even thoii,i;h notice is !;iven to them that his j)rinci))al is not assentint;; to his acts. Their Lortlships think it unnecessary to e.Kumine this statement of the ])Owers of a iiidnihi- fdlrc preft-nuiii. i'ov tlu'V find no detinition or (k'sei'iption of such an ayent which does not rcfpiire that he sh(juld have a ///yv (ippdniif. which they understand to nu'an that he must lie ostensible owner, made to a])})eai' to the world as absolute owner. They asked whcthei' there was any text ase to show that an aaiiy"s books. Their Lordshijis think that tliey do iin])ort an interest insomeotlu'i' |ierson. though not in any speciticd ]iei'son. Hut whatever thex' mean, they clearly show the infirmity oi- iiisulKciency fif iJosc's title ; and those who choose to rely on such a title cannot comjilain when the true owner conies forward to claim his own. It is worthy of remark that, in their plea, the a])pellant> claiiii to be the true owners ol the shares ujion the very same jirineijile ii)ion which the jilaintilf's claim is founded. Rose did not transfer them to the Hank iiy name, but to Hiichanaii " in trust." The ajipellants aver that this transfer was nnide as security for a debt rdships jigree in all material points with the Sujireme court of ramula. They will humbly advise Her .Majesty to atlirm the decree of that lourt. and dismiss the a|ii>eal. The appellant.- must jiay the costs. 160 lULLS OF KXCHAXGK A««'i;pr.\x<'K OF lUNKKUrTC'Y See Insolvency. r.Aii Sen Attorney. BASTAlfD See LE(fACY, Mauri.V(m:. Will. BEACHES See RiPAHLVX PKOIMUETOUS, IvIVEK. BENEVOLENT SOCIETY Sec AssociLVTiONs. Leoislatuiie : leiiislatlve powers : iisdem verbis. BETS See 'Iaminc; AND AV AdEUiXd. BIDS See Sale, Ctamixc} and \Va(ieriN(i. BILLS OF EXCHANGE Ari'EPT.lXCE OF liA.MClUKN Ml'LI.ICK- V. firClIMKKriUXI) It.VDAKI.'^.SK.V. ' 17. A t'orei'^n l)ill of exchange, payabL^ after sight, must be preseuted for aceeptauce ; and althongh there i« no limited time delined by .statute for presentment, and no usaa-e oi" trade to lix the time, yet such hill must be present. -d within a reasonable time. 18. What constitute a reasonable time is a mixed cjuestion of law and ttu't iV)r the determination of the court and the .jury. I'J. In this case a bill of exchan<>'(> was drawn at Calciiltn on the l(!th of F(»l)ruary l(-i4S. payal)le sixty days after siitht, the bearer kejit the bill for live months and nine days, and then .sold it to a third party who did not present it for ac.--pt- ance until rhe 24th of Ot^tober in that year. The dra-wee then refused to accept it. It was held that the presentation of the bill for acceptance was not made within a reasonable time, and that the draAver Avas discharged, and that it Avas not an excuse for the non presentation of the bill that the draw<'rs continued solvent from the date of the bill to the presentation, or that uo actual damage Avas caused to them by the delay. Mk. nAKu.v f'AKKK, ]). (!5 : — TluTo is as little doiitit, that it wan nincli too late to eontoiiil, that the law doi's not iv.Mpiii'e a jirescnt- nicnl lor acceptance of a t'orei^'n or otluT hill of exchange, |)ayahle 1 Calcutta, 1834 Feb. 15, IX .Mooie AC. I I BILLS OF HXCirAXGK HIT fsiuht , |,s. and icr^'pt- •ilWt't' laciou liable was it the lo the thi'iii In was k'sciit- livabk' at, or a certain time af'tor siifht. IIow otherwise ean the lime the Bill has to run he fixed, where it is payable after sin-hl ? Indeed, the statute of ;{rd & 4th Anne, eh. 9, see. 7, makes an inland hill of exehann'e, received in satisfaction of a deht, a full and complete payment if the holder does not take his dui' course toohtain |)ayment tiiereof, hy endeavouring to u'l.f the same acce])ted and ]iaid, and. therefore, in some eases, nndouhtedly, it requirtvs the presentment for acceptance ; and as the law has been lonn' scUleil that the holder of a hill, payalilc after tlate, is not oblin'cil t m the argument, that a tureign Bill of Kxchunye ought to be |iresented wiflna a reasonable time, and what is ;i wisonable time is to be regulated aeconling to tlio cireumstancc'- ut each individual case. Thecircumstaiuo which \ Axn CniNA V. DicwsiiN. '' 2L The hiAV with regard to time for the presentation of a pronus^ory note payable on demand, requires that the 1 Isliiiiil of Jersey, 18r>D I\'l). 9. XIII Moore II. 2 Islaiiil of Ceylon, 1S71 Jun. 28. VIII Moore X. S. I. KIS lULl-S (»F KXCJIAXdK A«'eeilic date. Tlie presentation was made tlie 14th iJeeemher in the same year. The J'rivy Council held tluit it ai)peared i'rom the evidence, that the note was meant to he, to a greater or less extent, a continuing seciirity. and that tlu^ delay in presentation w;!<. under the circumstances ol the case, mit unreasonahle, aiul the holders of the note "Were entitled to recover thereon. OAXt i:i.L.iTio.\ or ni<4\ati iti:. PlU.NCK V. ()lilF,.\TAI- H.V.N'K ColU'nUATIn.N ' 2;>. The mere fact oi' canceli.'.ng the signature oi the makers, and writing " paid ' on the note, corrected subse- (juently ]>y this memorandum on the note : "I'aucelled in error hy ,1. 0. Atchinson " is not a presumption oi" payment and cannot be eil'ectual to charge the holder Avith a receipt ol' the money. Wartdck v. /luiicrs. o M. ^ G. ;]4U. ('OM.ATi:UAI. NWIUITY. TUK OltlKNT-Mi H.VNK' ( '< PlU'dll.VTIn.N V. LkMUKK ■' 24. A hill ol' exchange was drawn by the vendor ol' goods shi])ped. ui)on the consignee and ])uyer, Avhich bill Avas atterAvards discounted by the appellant, the vendor depositing at the sanu' time with the br.nk, as collateral security, the bill ot lading ol'the goods shipped, i lie bank had the hill ol' excl.ange acce])ted by the l»uyer and at the same time delivered to them the bill ol' lading. The buyer tailed bel'mv the bill became due and it Avas dishonoured. 25. The Judicial Committee not witstaiuiing that the l)ank had parted Avith the bill of lading, held the respondent, the said vendor, liable for the i)ayment of the bill of exchange, on the ground that a cordiimto llic vuulerstandiug belweeu them, the bank had the oi)tion to retain the collateral secu- rity or to i)art Avith it. i>iM ii.%u(ji: Ol' i.\noKKi:its un acceptoks. 'fnHHA.NCK A'. 1'aNK ')!•' i'HITISlI X a!TII A.MKKICA ' 2t). An acceptor or indorser of a bill of exchange is not discharged from liability bi'cause an agreement is entered 1 .Vl'W Soiitli Walfs, lH7H.Jiin. U., I,. II. lit Appeiil Cases 3J5. 2 Iluiig Kimg, IHT!) ,Jiily 2i. XLl Tiiiw Tim.'s. .\'. S. :!85. ■) Quebec, 18?;! Miircli ILL. I!. V. P. (' 2A\\. i I!IIJ-S OP F.XCIIAXCK im lunge. not Icred lUNCIIAIUar, OF IMIOHNKKN OH A<'< r.I*T4»ltM. into ])('t-\V(H'n the inakcr iuid the hokUu' to posti>om' the jxiynxiMit olthe bill ov note, Avithout iilti'rini>- or iill'i'iting in any manner the jjosition of the surety, and to this hitter's knowledge, esi)ei'ialiy Avhen l)y liis dci'ds the acceptor or indor.ser made it appear that he agreed to the delay. '21. Al'ter the matnrity oi' a hill oi" cxchiinu'c discounted by u Itank, the maker tind the bank agreed, on the iaith that the indor,ser Avould not o}>ject. to renew it. and a cheque was drawn by the maker. accei)te(l by the bank, and .sent to the indorser with a letter, in which it was stated : '• 1 have drawn on yoii to day at three months I'or !ii;l<*,000, " and enclo.se che(|ue on V>. N. A. I'or same amount to retire '■ bill due on ISth instant." The acceptor presented the cheque and received the money, and afterwards refused to accept the new bill of exchange. It aiqx'ared in evidence that the accejjtor knew the agreement between tin' bank and the maker. 28. Under those circumstances, it AVas held that the cashing of the che([ue Avas an acceptance of the contract to reueAV the bill and the acceptor Avas bound. Ldud .IrsTii'K .Mki.i.ism. |(. 2.')((: — Then, that lieiiig so, it a])|)cars to tlieir Loi'dships iiio.-^t cleai'ly that Messi's. Tori'anee were hound citlier to rdiise or to aecopt llio otter tliat was maih' to them, 't'lien^ Avas an otier made to tl lem on lieiialt ol hoth ]iarlies. on lielialf of tlie Hanlv of Mritisli Xorth Amei'iea and on liehaH' of h lliat thi'V would assent to renew llio hill of e.\ch;uiye, \ ir\voo< and tiie (dR'(^uo was ^iven to them for liie ])Ui'])o.-e of enalilini; (hem til cann- (Hit tiie I'eiu'WJil, if they assenteil to it. 'I'lK'i'efui-e, it ;i]i])i'ai's tiiiit tliey were entitled to do one of twcj tilings, either to aceept the otibr that was made to them, and then they were hound to aecejit the hill of exchange, or else tliey were entitled to reject the otter that Avas )nade to them, and then if I'ley did tlijit thev were liound to feturn the ehe(|Ue. Hut. withotU liiving aii\' mniee to the haidv that they ae(H'|iled or refused the oiler imule to them, they took upon themselves to ]iresent the ehecjiie and got it cashed. Xow. it appears to their Lordships quite clearly that they Avere not hips that it is really necessary to say precisely what, if these facts had arisen in Hiui' ami, and it 170 niM.S (W KXrifANTIH DIH('II,\K»K Of I\I>OKHKIIN OK A('<'»:i>TOKN. Iiad liocoiui' iu'i'('ssiir\' to I iriiiu' nil ii( tiiiM 111' li> lilc a liill ill l-]im'liiriil. woiilil liavi' lii'cii lilt' prccisf rciiii'ily wliicli wniilil liavc ln'i'ii Dpcji tluT it Would liavt' lioi-ii an ai'tioii for ■V liail ami win or an action tor n to a |pcr>oii ill i'liiii'lainl. not ai'('('|)tiii^' tilt' liill ot'i'xciiani^i rc'ci'iveil. or wliotlu'r it would liavo in-i-n a Kill in ('(|iiit\- to iccoxim" liacU tlio nionoys as liaviiiy; In'on ohtaincil in liad liiitli, tlioiii!,'li it' it wi'i'i' lu'cossary to nivi' an ojiiiiion upon tlial |)oinl, jiroliaMv an action tor inonc\- liad and received would lie the real reniedv wliicli won Id 1 le oiie n in the Courts here; that, however, is a ti'chiiical (|iiestion. Tlio siilistantial and real question is that it was a matter fliad faith. I do not niei.n to make am* remark aitainst >ressrs.Tor ranee s ( haracter at all, Init. still, under the circumstances, it Avas a nia terot'had faith, tha' wlien thcv .H'ot the cheiiue with full not ice that the clie((iic was only y'iNen to them on the assiim|ition that fhey would come into the arrangement of renewiiiii; the hill of exchanji'c, it was a matter, as it ajipcars to their Lordships, of hail faith for thorn to ^o and cash the cheque, heinij; determined at tho very same time, and Imvinii' already made U[) their minds, that they would refuse to accept the hill of exclian;j;e. Then, it was contended hy .Mr. Uciijamin, in his very ahle arii;u- meiit, that ^lessrs. Torrance's position was altered li\' the arraiiiic- jiosition was altereil ny tiie arraii cut, and that lie, heiiiif a surety, was therehv (liscliar,i;;eil. Tl leir Lordships are not able to see i.. vviiat n-spect Ids jiosition was altered. Certainh* no time was liiiven, because tho first hill of oxchaiin'o was not due until the 18tli of July, and hetore the first hill was duo the second hill must either have been accepted or rejcctt'd ; and Yarwoml was not discharji'ed from any oliliifatioii which he had, because his only obligation was to |)rovide the funds on the 18th July. Tho ari>;umont seems to bo that having made this arraniioment with tho liank. he. as a matter of fact, would not maki^ iiiv other etforts to obtain tlu' fundj' He was not ilischai'i'-od tnun olitaining them. Jlis liabilities remained exactly what they wi're before, and if the I ill had not been renewed, that is to say, if .Messrs. Torrance did not accojit tho bill of exchaiigo, no tiTiio would have been given, because lie would have lieen instantly liable on both bills. Tlieroloro their Lordships do not hco that there is any ground for saying that Messrs. Torrance were discliargeil, hocauso tlieii' position as surety was altori'd or atfected by what was done. It is very ditticult to say how a surety's jiosition can be altered, liecause the two jKirtios say. " We oti'er to you to postjiono your '• payment for three months if you like to accept it, you may either •' accept or reject it; but we otter to you, if you please, to ]i().stpono '• your liability to ])ay us for three montlis." It ap])ears to their Lordships that that did no harm to tho surety and could not liavo tlio ettect of discharging him. Some authorities wore cited ; there was tho case of the Ban/; "t Irdaitif v. Archer, tlie facts of whicli do, to a certain extent, resemble the facts in tho prosent case; but, really, the only question that was decided in that case, the only question which was reserved by the Judge at tho trial was, whether a promise to accejjt a foreign bill of exchange before the bill of exchange was drawn amounted to liir-Ls or Kxcii.wiiH 171 niNciiAiKii: or i\itoi(Ni'.iiN on a('('i:i>toi(n. troni wrro iiy, if voiild oil any H'aus(>, lolU'. kTi'd, voiir ■itlioi- ])rdslii|is ai'o of (>|iiiiiiiii ilial tlicy iiuisl liinnlily advisi- IVvv Maji-sty tliat the .liid^jnu'iit nl' tlic CdiiiM of QueiMi's Honc'Ii for \\w I'roviiicc of (^iioliof slioidd he allii'MU'd, and thai litis A|(|K'al should lie dismissed, willi costs. DK.iw\ ny .v»i:\T. Ilooli Sr.u.i.viiiiAss \ A I. "i'.t. In this (ii.so thi' piinripal drew u hill of cxihaiiuc on hi.s ayciit as follows: "Four mouths ul'tor date pay to my order " the sum of £i)W) vahic received in roals aud iid- vauee per " Eskdalc. " The priueipal having' failed, the liquidators shut the estahlishmeut of the au'ent. and the hill Avas dishonoured. The respoiulent. indorser upon the l)ill. roeoven d jiid i'lncnt auains t th( aeet ptor and seized the coals in his possession. The Judieial Committee held that tho i^oHsessioii of the coals received hy the liskdale S. S. was not a proof that the acceptor was the i)roprietor of it, and that in the presence of i)ositive evidence that he Avas only tho agent of the maker, the coals conld not ])e seized by the respondent to satisfy the jiidninent. NATVHi: OF l)K,l,I.I.\(illA.M V- I'liKKK 30. A hill of )f 1" lull oi exchange ojierates, l)y the law ot f ranee. a,s a real contract hetween the drawer and the drawee, and this contract is of the nature of muiidale mandalum solveiida: peciinur which takes plact>. and is contracted, by the ac- ceptance of the hill hy the dr;iwe(\ Fo/hiei; Cunlrat de Chau^e, part. 1, chap. 4. art. 3, Xo 01, 92, 97. Wll.l.lAMS V. AVKHS ' ■il. Althouii'h bills of exchange, drawn and accepted by the same parties, may l)e in strictness promissory notes rather than hills, yet where tlu' intention to give and receive su(!h dot'uments as instruments capable of })eing negotiated in the market as l)ills of exchange is clear, both the holders and the parties may treat them accordingly. Sill Jamks W. CoLVii.r.E, \). 142: — Tliere is nodoubt some autho- rity for the ])i'oposition tliat sucli instrunienls arc in slrictuess ratlicr promissory notes tlian l)ilfs. Jiut Hio ])assage cited from 1 U. C. Constantinople. ISlH June 27, X.XXVIII L-.wv Times. N. .S. 827. ■1 Lower Caimda, isn? May 10, I Mooie ;i33. 3 Australia, 1877 Dec 10. L. R. Ill .\i.peal leases 133. s^, IMAGE EVALUATION TEST TARGET (MT-S) z 1.0 I.I l^|2B |2.J 12.2 !!: 112 mil 2.0 11.25 i 1.4 — 6" i^ 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WFBSTER.N.Y. 14580 (716) 872-4S03 z 172 miAjS OK iLXcjiAX!;!': I f i 11 NATl'Ki: OF Panli'xxus. Cuurs liii»i! win-ii tin- ilnciiiiu'iif jdirports lo Iw a l>ill drawn liy a lioiisr of liu>iiifss in oik' <'iiiiiilrv ii|k)ii a lioiiso of lm.silK•^s in ani>lli<'r (Mnintrv, anil wmild troat it as a lull ol' cx- ini'ss in tlic two (•stalp|i>linu'iils. and in this country tluTc are aiilliiirilies In >|i(iw lliat althoiiirh tlu' holder ol' such an instrument may at lii^ election ti-eat it as a liillot'exclian.iie or as a [ironiissory nnie. the ilrawer niitrlit lie e-eeni to lie essential that the holder slioidd he a Nuli>e(iuent indor>ee for value. Thi' same rule may well a|i|ily to the uriirinal parlies, it' it he clear on tho evidence, a- it is here, that it was the intention ofthe one to i;ive. and the other to receivt'. a document capahle of l»eing negotiated as a hill of exchai: .•■' in the marUet. XOTK'K «»F I>INIIO.\OH. lii.A< K V. TiiK Ottoman \\\sk ' 32. The principle of the contract entered into between the parties to a hill ol' exchanire is that the endorsees shall have a notice ol" the dishonor ol' the hill, and that the dolault by the holder to givt' such notiie is eqnivaleut to ji dis- charge. TiiK liKiiir Hon. T/uu' Kimishow.n. ]i. I>honor, within a certain time, to the drawer or indorser who stands in the siliuition of >urcty for the acceptor. I'AY»K.\T WITH M vxwt:i.i. V. Mkakk " .■{;{. An aiifeenient hy which a l»ill of exchangt? is snhsti- tnted I'or cash payment is only to he considered as ]iaynnMit 1»y the hill heiiiti- honored at maturity, even when the ac- ceptor, according to the agreement between the parties, has given in his l)ooks credit to the i)ayee and has debited the drawer. PROPKKTV I.\ Nl TTVI.nM, SKAI, V. I>KNT ' ;54. When bills ol' exchange are deposited with an agent I'or sale with special directions how toajiply the i)roceeds of the sale thereol", the properly in the bills, and in the j)ro- if 1 I., iti'p. I .^pp'^al CiKfs -I'l;. 2 Coiistanliiioplf, l.'t:HTV IS t:eed.s ol' the hills, rt'iuiiins in the oiiu'iual hearer until the purpost' ior whirh thej- wcic reuiilti'd issatislicd. And il'thc ag'iMit iipplit's /V'//«s eount, I'rom the purchaser of them, who had notiee of the ]>urpose lor whieli they wen; remitted to the agent and the misapplieation of the proceed.s by him. HK-t:\vn.%.>ui:. Williams v. Avkus ' 8"). A 'iistom as to allowiuy a lixed ]>ereentau:e hy way of liquidated damau'es in lieu of exehanu-e. re-ex other nieiiiis to put himself in funds in the country where the hill was payahle. Ilciice the right to ''re-exehangc" which is the measure of those damages. KKJiiT Ol- iioi.i>i:k. CtlAI'MAN V. TllK liltirisll (IllANA IUnK ' ;^tl. .V joint action on hehalfof the holder of a promissory note lies against the nniker, together with the indorser pro- vided due notice of the dishonor is uiven to the indorser. 1 Aiislnilia, 18S7 Dvc. Id, L. li. Ill Aiipfal Ciiric-! 13.1. 2 Uiitisli Guiuiiii, I84ii t)cc. HI. VI Mooiv 2;t. 174 HILF-S or KXClfANOK RiniiTN \yn oni.i«ATio.\N of rxnoKHKUN. .Ml uuow V. SrrAiiT ' :n. If thi? nidorser menus to makti a rostrictivf i'lulorso- int'iit, hi' must state so in plain and int('llig'il)l(' lanj^uagt'. A hill ol" exehauge payable six months after si<^ht was in- dorsed by a lirst indorsee Avith the lolktAving' words : " value in at count with the Oriental IJank.' The bill having been dishonored, a subsequent indorsee brought an action against the lirst indorsee. Demurrer was iykd alleg;ing that the iirst indorsement was restrictive. The Supreme court oi' Honff Konii- held that there was nothing upon th«' indorsement to prevent an assignment ol' the bill, so as to give the subsequent indorsi'e a right oi' action. This decision was affirmed by the Judicial Committee, the words, "value in account with the Oriental Hank" not constituting such a restrictive indorsement as i>recluded the plaintiti' i'rom suing upon this bill. • ii i w * * ( (".VSTRKilK V. IJrTTltUEU ' 38. The respondent ai-ted as agent in Malta for the aj)- pellant, for the purpose of biiying and remitting to tla; appellant, in Englan'l, bills of exchange, on accoitnt of money received by the respondent in Malta. In the <-ourse of his agency the respondent purchased bills in J7«//«and indorsed them to the api>ellant, without any reservation in the indor- sement as to his lial)ility. The Judicial Committee held that in the absence of special circumstances, showing that any liability Avas intended, by the general mercantile Unv, Avhich must l)e taken to be in force in Malta, the respondent was not liable to the a])- pellant, upon the bills being dishonored. The doctrine of the liability of an agent indorsing a bill of exchange for his principal examined and explained as follows : TliK {{iiiiiT JIii.N. Sill WiM,i.\>l II. Mui.K, p. 1(1": — Tlie c|iiesti(.ii, fl'.cM. tliat remuiiis to lie CDiisitU'ri'd is. wlit'llier (lie I'espoiuleiil is lialiie III the ajipellaiit as iiidorsor. In (Ictfrniininj; this (niestioii, it (Icies not aiipear to lie necessary to eimsider any peculiaritv, it'lliere Ije any on tiiis siiiijeet. of the law lA' Jfalta. The ease was argued and appears to de]iend on the iri'iieral merehant law jirevailinj^ in all civilised eoiintries; if there he in Malta any special form of writinu; which Ibrins a necessary iniriedient in an indorse men t, tho 1 IlouK Kong, 18r>:! Feb. .i, Vlll Muore 207. 2 .Maltii, 1H55 .Nov. 27, X Moorf 'J4. lUI.LS or KXCIIAXdK 175 RIUIITN A5{0 OnM»ATIO.\'N OF K.>'»ORMKKM. •writiiiji^ in tlic prosoiit case must l»o taken to bo in that form, or. in otiiiT wolds, (Ik- inilorscmcnl was rcjxniar ; tiio wiioU' ar^umi'nt jn'oci'cdini: on tliat ^toiukI. and noliiin^' apiioarinj; lo tlio i-ontrurv, as to tlio (iiii'stion ot'tlii' sniistantial lialiiliiy of tiu- respoiiclonl. tliu fort'iijn colli- ost'.liiisliini!: the iialiility of an indorser as a ^enefal l)ro])rietor as vill as liie Kn^iisli text writers to the same etUet, arc merely deilaratorv ot the i^'enend mereantilc law on the siilijeel. and it is on this same law that tiie jiiditial deeisions, both Kn;u;li'*li and foreii^n, which were cited on both sides, ])roceedoil. It is there- fore to be eonsideied whetlief, according to such general law. the i'acts appearing in the present case are sutlieient to show that iho res])ondent is liable as indorser, to the appellant his iinmedialo indorsee of the bills in (piestion. The liabilitv ot an indorser to his immediate indorseo arises out of a contract lietween Ihem, and (his contract in no case consists exclusively in the writing jiojiularly called an indorsomont, and which is indeed necessary to the existence of the contract in ipie— tion, but that contract arises out of the written indorsement itself, the delivery of the bill to the indorsee, and the intention with which that delivery was made and accepted, as evinced l»y the words, either spdcen or written, of the parties, and the circumstances, <^such as the usage at the place, the course of dealing between the jiarties and their relative situations) under which the delivery takes ])lace, thus a bill, with an un raise money for his own use on the credit of the signature of the indorser, or with an express stipulation that the indorsee, though for value, is to claim against the drawer and acce|)tor only, and not against the indorser, who agrees to sell bis claim against the prior jiarties, but stipulates not to warrant their solvency. In all these cases the indorser is not liable to the indor- see, and theyare all in conformity with the general law of contracts, which enables jiarties to them to limit ami modify their liabilities as they think lit, jirovided they do not infringe anypro!;i'>itory law I*. Ill: — With regard to indorsing the bills with the words " without recourse," by so doing the indorser voul I indeed have avoided all liability to an^- subsequent holder, tis woll as to his immediate indorsee, but such a course would have cast suspicion on the bills; would have rendereIITN .%>'» OilM« tTlOXN OF KXIMIKHKRN. tli(»Ui;li lit- was iimI Itiiiihil liy •iicli (Hi tlic liill It it lie siiid tlial till' ffsp(iiiclf lial>li' a> iiidor-cr in any Mili>c(|iiciit liulijcr of the lulls, ami imt (^\|•l•t■^^iy I'c^l ricicil lll^ lialiilily l<> iiis imiiu'iliatc imlorscc, (iiiifjil Ic) lie coiisiilereil as aii-wei'alile to liiin ; tile answi-r is tlial tliis is the usual case with an aeeunmioiliition hill. lheac<'()ninioilatinir |>arty relyinixon the iinleninily of tlu- j'"rly acconiniodaled, and in llie present ea>e, thouiih the ay'ent iuiu'ht. if lie would, indorse (he hills he I'eniitleil yel not lieini;' houml to do so liu woidd not adopt this (•oMi'>e, hut would prefer isonie of the others ahove indicated, if his opinion of the solvency of his principal, or tlu' state of accounts hctween them, reiideri'il >uch caution necosary. If, thert'fore. the (|iicstion on this appeal were to he deterniined u|)on principh', inilependeiit of authority, thi^ Conunittcc would he of ojiinion that the re>pondei\t ouicht to he considered as an a^ent, who, in the duo execution ot his duty to his principal, houn'ht the hills for him, and causeil theiii to he nnulc payahle to himself, and indorsed them for the purpoM" only .tf performinif his duty in a iiianncr honeticial ami coiiv»'nicnt to the jirincipal. and that the principal had notice of these circumstances at the time of the (U'livery. This state of thinj^s, it ap](ears to the ("oniiiiitlee, would, in the ahsence of any other eii'cumstances, sui'li as express words or local usage, or a coiuve ol'dealimc hctween the jiartios. and in the ahsence oi'any authority to the contrary, show that no liahility of the resiionilent as indor.ser to the appellant as indorsee arose out of the tnin>aelion in question. .Macdonam) v. \V 'iKi.n ' 3!t. AVht're the directors of a loiupany niutiially agn'ed Avith each other to Ix'coiue suivtics to a l)aiik lor tho same (Ichts of {\w coiiiiiaiiy. and in pursuuiux' of that agrwiueiit sxifccssivtdy indorsed three promissory notes of theconipany, they are not liai;'" lo indemnify each other snrcessively aeeording to the priority of their indorsements, hut are liable to equal eoutrihution inter se. Lord Watson, p. 744: — In the pri'>t'nt case the appellant, al- though his en(h)rsement was first written, was a stranger to the notes in the same sense as the respondent, ami it is not matter of dispute that the enilorsemeiits of hoth were given for one and tjie same ]>iir])0se. viz., in order to iniluce the hank to discount two of the notes, ami pay the jiroceeds to the pi'omissor, the St. John's Stone China Wari' Comiiany, anil also to give the Comjuiny credit in account current to the amount of (he third note. It was argued, however, for the re>pondent, that, in the ahsenee of some special contract or agreement hetweeii Ihem, the notes themselves, strangers giving (heir eiidorsemeii(s successively must be held to have uiider(al\en the same liahilides inttr sc whi<'Ii are incumbent on successive holders and endorsers of a note for value. The appei- 1 Qucbi'C, 1883 July II, L. R. VIII Appeal Cases 733. lULLS OF KXCIIAXUK 1 4 ( HIOHTN AXD ORMOATIO.VW OF EMD<»BMKRN. iant and resnoiuloiil must therefore, it was said, beassiiincxl to stand towards eaeli otlier in tlie relation of prior and subsonucnt endorsers lor value, inasniucli as it had not heen proved, /if (pnditying, altering, or even inverting the relative liabilities which the law-merchant would ofhei'wise assign to them. It is in accordance with that rule that the drawer of a hill is made liable in relief to the acceptor, when the tacts and eircumstanees connected with the making antl issue of the hill sustain the inference that it was accepted solely for the accommol (itClu't-ciiian. I'liilorx'il, aiid llie liill \va> (lu-n t'iiiaii n-ct-iviiii,' llu' |»r(tci'i'tcd llic claim ifec(l to undertake the liahility evidenced hy the cndnrscmt-nl. and cnnsi'(|uently he was not liahU' in relief or contrihiition to om- who, liUe Ifeynolds. ha. Tl le mac hiner' lopted here was tiie drawiii"; of a " note hy Cheeseman upon Heynolds, and tiie i'lidorscinent of it hy Wheeler." And Williams. .1,, statinj^ the law to the same etVect, haid, " if the rt-lation of surety sullsi^ts he (iJeynolds) is entitled to " conlrihution. and we are entitU'd to di>re<;ard the form ot tin- " instrument."' Jii the ]ire.sent case the directors of the St. .lolin's Stuno China AVare Comptmy one and all aijreed with eacii to liecoine suri'lies to (lie hank for the same dehts ot the Company. That was tlu' suhs- lance (if the aifreement to which they caiiu' on the .'(th .\u!.:;u>l. IST,'). and the fact that the machinery which they ailopted lor carrying out Ihcir aj;recmeiit was the makini; of thit'c promissoi-y notes hy the Company, payahle to tifie a|i|iellant. ami ^ucce^^ively endorsed by him and his co-directors, lannot have, in law. llie ellect of aller- \\t that the appellant, iviward Macdonald. did anything more than urge the respondent to carr> out the agreement which had already heen come to hy all tlio direc- tors present in order to aid the tinances of the t!ompany. Tiie authority of Keynolds v. Wheeler, and similar cases, is in no lui-i.s oi" i;.\<'iiA.\<;i': 17!> RlilllTM A%'D OIII.IUATI<>\N or K\ltOHNt:UM. Ilii'U'tl liy llif i|<'ci>iyi\< ill 'lie Scotch I' Steele r. Mackiiilcy, wliicli is rctcrfcil to in liic jiiili,'iiiciit of III lliiit cji.-c A. iictiii^- iMi licliiiilot' iiis suns I! ami wisc a cast- o llic Cciiii't licliiu'. (', ari'.iimcd with l> ilial the latter •-hoiiltl make an ailvaiice In liieiii ut' l,(»(t(l/. ii|inM llieir jierMiiial seciiiiiv. I* aceonlini^'ly ilrew a hill for that aiiioiiiit iiml < ', ami (Idivereil it to A, in order liiat he iniirlil proeiire their iieee|itaiiee. A ili'l ohiaiii their aeee|ilaiicc uiiil hclore reliiriiinji tlie aeeeiilcil iiill to |), he wrote his own name upon llie ImcU ofit. The aeci'ptors tailed to retire the hill, and l>, the drawer, lirniii;lil an action ai,'aiMsi the representative of A (wlio jiiid ilieil in the nieanliiiie) for recovery of its eonteiil-. ii|ion the allegation that A had si,i;-iied as a co-accepior, or al all eveiiK with the intention and I'tVcci of ln'<'omiii^ a surely to him for the accep- tors. I'arole evidence was made, not only in njiiird to tjie iiiaUini;- and i^siie of (he hill, hut also in rei;ard to statements nia was neiili cr • iipliofled erclice ( Ih |iriiici] )f the law-nierchaiil, nor hv anv in- lerivahle from theve fa<'ls and circiini'^tances. Miit the lloiisi- reji'cled the parole eviilcncc adiliiecd hy |) in order to eslahlish an inlli'peiideiit contract of niiaranlee, iijion the jfi'oiiiid that such a eontiact could only lie proved hy a writiiii;' properly siiniu-d iiniler the tlih section of the " Ali-reanlile Law Amendment (Scotland) A<'t. isrili." which extends to Seotlaml the pro\isions ot' thi- I'liiiilish Statute of l''raiids with resju'ct to lucreantile i;iiarantees. riie ri'spondeiit's coiiiisi'l, in tin' course of the ai'n'uiiieiil. referrcil to tl le case o I ".li iiseii V. a.xlon iliSC. P.. U. ('.. Cill). (Ieei(le( Ih lilt' Court of Krror and A|i|ieal in Upper Canada, and to three other iVilli the same view, thev cited decided in IS.'tK hv tli ' decisioi IS of the Canadian Courb • U the ca-e ot ■■ .Mac(lonalil r. .Maiiruder. Ui-cided in l^.JIt \ n'latiiii^ In MIIn nt'cxcliaiijii' in>t providcil liir in tlu' Coilc, '• ri'ciiiiisf niii-i !»■ Iiail lo tlii" la\v> ni' Knirlaml in furcc <>n tin- .'llMli " ilav n| May. IMJ!*." I{y artiilt- 2;{KI of liu- CcmU-, iIu' sanu> law is nia proniis-ory notes as tn Mils (»t 'fxclianmt', in mi far a.s vi';iar jimvision re;4ardinii the (juestion raised hetween the a|)pellaMt and respondent, that (|Uestion must, in tlie opinion of their Lordships, he decided aecordini,' to the law of Knjriand, us laid down liv iheCoiirl of Common I'leas in " J{eyn(dds v. Wheeler." Their Lordsliips will, aceordinf^ly. ailvise Her Majesty that the jiid^rment appealeecurities for the said Company, and are, in that capacity, entitled and liahle loeiiual eontriluition inter Si'. Hl'NI>ICIOi;.H. McC.VUTIlY V. .Ill>.\ll ' 40. An ai'tiou was brought against a testamentary exeentrix upon the I'oUowing document alleged to be a i)roniissory note : — " Uu demand, I will pay at any time to Miss M. J., " if she will marry my adopted son, A. P. H.., Jt 1,500 eur- " ren.y. Three Jiivers, 14th August 1840, Mr. H." The de- fence to the action was that this instrument was a forgery. Upon the evidence it appeared that to make his claim, the plaintitf had waited until the death of Mr. H., and neither the princi xil nor the interest was claimed during the lifetime of Air. H. although the condition was accomplished, nor was it shown how the instrument came into the plaintiifs pos- session, nor did the plaintitf in any way account for not enfon.-ing the demand during the lifetime of Mr. H. It was further proved that Mr. H. during his life provided for his sou and his wife and family by a donation inter vivos sulficieut to enable them to live according to their condition. The Privy Council, without deciding that the instrument was a forgery, found that from the facts they were led to the .onclusion that Mr. H. had provided for the plaintitf by deed of donation in satisfaction of the promise made to her. which inference coupled with the fact of the plaintiff not claiming, or bringing the action in Mr. H.'s lifetime, or ac- counting for the custody of the instrument, afforded strong 1 Lowur Canada, 1858 June 21, XII Moore 47. IMM.S or KXClIANdK IHl NI^NHICIOl'N. prool' t»r satisfmtiou by the deed of donation for any pro- mise niudt' by Mr. II Under all thi'so snspit-ions oircumstanceH, it was infum- bent on the plaintitf to prove how this note tame into her possession, althousfh, in ordinary eases, the possession ol' the docnnient, assuinini? it to be <»'enuine, might In* sntti- cient jtrool" that it was given to her by tht^ person who made the promise, and that it came by lawful means into her hands. WIIF.X NEOOTIABI.E. lioAKIlMAX V. <^IAYI,K ' 41. A promissory note made in the following terms : " \V»* promise to pay to the bearer on domand, one pound ' IJritish in JJank notes or bills on London" is a ne<>(itiabie instrument affording to the law of the Island of Man and to the t ommerfial praftiee there, whatever may be the law of England or the general laAV of men-hants. TTlrllKIt V. VdVKH. ' 42. A bank certiiifate in the following form: " A. a de- jiosv itans cette bnnque a iiitefrt a 4 o/o par an, la soiinne de $2,000, /)(i//iible a I'ordre de B., tors de In remise ilu /m-sent rerti- Jical. Cette somme pour /lorttr interet devra renter au vioins trois iiiois dans r.itle. batiqiie, el le iiorlenr de re certt/icat ne pourra In retirer quujirvs quiiize jouta d'ains, rintvret ressant du jour de cet avis " is a promissory note and u lu'gotiable instrument. Sia .MoNTAtii E K, S.\MTii, |). -JTr> : — On tlio tirst point, his t-asc is, tliat lIu- ccTliliciili' is a lU'notiaMc iiislruinent. ciipalilc ni' liciiig flic MiltJocM of "(Ion nianut'l." and tliat his possession of i* -ndorscd l>y .Mndanu' Voyer, satisHos tlie iV(iuironient of ihi' law as to delivery. ^[ueli diseiission tooU place at the Mar on the trae nature of this document. On tiie one side, it was said that it iiiid all tlie altrilmtes of a pi'oniissory note; on the other, that it was an aclMts, mill willnnii !im\' lomlitioM, it iniiHt cuutaiii llio si;;iiiitiirc iir iimimc of llu^ m;ili II ilii- wiiiii III' iimiu'v uiily. ll iiiiiy lie in any liirm ufwcinU cun- sistcnl wiili till' t'()iv;;nin;i niU's." Tlio wiinl " piiyalilc" in llii«i'i'rlilicaUMiH|iii'slii)n iiiu|iu'sii(inal»ly iiii|iiiris a |irnini>»' to ])ay llu' Hiiin ili'imsilfil, and inliTcsl al 1 per (•(■III and " a I'onli'i' " arc llic apl words lo coiisiiiiilc a ni';rolialili' iiislninifiit, triinsrcralilc liy indoi'M'incnl (sec arl. liliMil). So tar tlic csscnlial alirilnilcs ot'a lu-^olialilc pl•ollU^^o^y noU- arc olilaiiicd ; lull it was >ai(| lliat llic provisions tlial llic money >lioiild not carry interest unless it remained at lea^t three months in the hank, and ilial llie holder of the eertilicate should not withdraw the money iiiitil aflcr tiflecn (lay>' notice, the interc-l cca>in,n' from the day of the notice, iinpoi'led conditions and contin;^rcneics incoinpatihic with ll this oliiccli( le c«'rlainlv re( iiii'cd 111 SIK 'h ai I in>lriimen t. Tl le aiiswci* fiivcn to >n was. that the pr(>vi>ion as to interest only prescrilied the tinu' when it was to commence and cease; and thai the stipu- lation lor litlccn days' notice introduced no more uncertainty into the iiromi-c than occurs in a hill pa_\'alile so many days afU'r si^ht. Willi I'ci^ard to authority, the rc>])ondcnt's counsel relied on a decision in I'cnnsylvania, in which the court held that certiticates ot this nature arc not iicnoliahle (i'atlcrson v. I'oindcxter, (i Watts and Sarneiit, 2:i7). On the oilier h:ind, the apj)ellant'M counsel re- ferred to an American text writer of hiy;li authority. Mr. i'arson>, who in his •'Treatise on Promissory .Votes and Hills of M.Nchaii;;!'." after statinn' that certiticates of this nature were in common use. and hiid j.!,iveii occasion to much discussion, and after referring lonunu'r- oiis eases containing conflicting decisions, and among them Patter- son V. I'oindextcr. says: — • AVe think this instrument (of which he gives the form) jiossesses all the (jualities of a negotiahle promissory note and that seems to he the prevailing opinion.!' (\o|. I. p. 2(i). It is to he ohserved, howcvi'r, that the form given hy Mr. J'arson.s omits the provisions as to iiiterot and notice which appear in the present eertiHcate. From the evidence given by hankers and others -who were called 11 this case to prove a custom, it certainly appears that those cer- titicates have been commonly ti'catcd as transferahle hy indorse- ment, hut whether with recourst' to the indorser does not ajipear. If it were essential to the decision of this appeal to determine the vexed question of the nature of this eertilicate. it would, of course, ho their Lordship.s' duty to do so. hut in the view they take of the second Itranch of this case they are relieved from this necessity. It is enough, thei^efo re, for them to say oi a iloeument not in use in I'jiglanil, and which has been the >ubject of conflicting decisions in America, that there is high authority in favour of the appellant's construction of it, and they will as>umc, in dealing with the rest of the case, that this contention on this point is well founded. BILLS OF LADING See Akfueiuktment. m.OCKADK 18;) IJ LOCK A UK See Intkunatkjnai, Law: rn/it>ire/or hmirh of llOTTOMKY AM) IJKSI'ONDKNTIA DI'TII'.N or rKHNOXN AI»V,iX<'lK« MONRV 05I IfKATIKHl.N V. DaRI.INiI ' 4-?. Hcl'orc liikinj? uhottomry hoiul I'rom a master ol' a Hhip recjiiirinj? tht* luM-cssary supplioN to contiiuio his voyag'*, it in tlu' duty ol'tln.' ptTNoii mlvaufing (h«^ siipplicH to \in\' due diligi'iuT to astertain it' the inaKter could not procure them ■without re.sortiii<>' to a bond, as they may he i'ound, iu some cases upon persoiud credit only. II" this latter case is estab- lished in evidence, the bond may be set aside. Sdahks v. Kaiin. TirK " I'ur.NrK m.- Saxk CnHoiiRd" ' 44. The purchaser of a bottomry l)ond is ))ound to know that the master's authority to bind the ship and carij:o by a bond is I'ounded on necessity alone, and that it is his duty, belore he takes a security so onerously affecting the property of others, to satisfy himself by a reasonaf)le inquiry, that the circunjstances of the casi' justify the master in issuing a bond. The fact that siich a bond is sold at public auction is not Butlicient to render all inquiry on the part of the purchaser unnecessary, as the principal object of public sale is only to obtain the lowest rate of interest. LAW ftOVKRXINft nOTTO.nHV ('0:VTK.4<'T M.IDK IN A FOREION l>OHT. Hie iNTERNATloNATi LAW : iisdem verbis. i,iEM FOR HEHPONDEXTiA Boxn. See Salvaoe : lien on cargo for salvage service. Ex cargo " 8alaus.' CO^iDITIO.VAI. BOXD. StKI'IIKNS v. liltKMKIEl.n. TUK ''CillEAT PACIFIC." ' 45. A bottomry bond \vas given by the master of a shij^ to raise a loan of money for necessary repairs, ; the ship and freight being hypotiiecated under it. The bond contained a clause to the effect that the obligation should be void if the obligors should pay, in »'onsequence of the loss of the ship, such an average as by custom would have become due on the 1 Ailmiialty, WM July 2, I Moore 5. 2 Admiralty, 18.38 Dec. 18, III Moore 1. 3 Aamiralty, 1809 June 15, VI Moore N. S. 151. C" I r lfi4 BOTTOMin- AXI» RKSPONDKNTIA <'0:VI>ITIO.\AI. II4»XI>. siilvagt', or il" the (ship should 1)0 utterly lost, oast away, or destroyi'd, iu oonscqucnce of the perils of the sea. The ship, on her home ward voyag'e, met with such bad weather as to be obligt'd to put into au intermediate port iu a damaged state, and after being surveyed was found unseaworthy, and sold Avhile existing in speeii^ for a sum less than the amount of the Itond. The Judicial Committee held : lird, that the doctrine of constructive total lost does not apply to bottomry })onds as in the case of insurance betAveen insurers and insured, and the })ondholder's claim to the entire proceeds of the same was upheld ; xeamd, that the above clause in the bond did not ap]ily when the ship remained in s])ecie, though so much damaged that it woiild have cost more to repair her than she was worth. Sill J.VAiKS W. Coi.viM.E, |). !')!• :— Tlio ifciioral law i.s succinctly statfil in Kont's Coninu-ntatorioK, vol. Ill S '^jj", P- -154 (lltli I'M.) speaking ot a loan on Bottomry, lie says: '• There is not, in respoct to llio contract, any constructive total loss. Xothinir hut an utter annihilation of the sulijcct hvpotiiocatod will . 157. S.MiTU v. TiiK Hank ok Xkw South W.vi.ks. The " ST.vFtdKiJSiiiiiK '' ' 46. "VN'here a bottomry bond was given by a master of a ship for nci'essary supplies and rejiairs of the ship, Avith the condition that if a bill of exchange draAvn upon a i^erson wh) already held a mortgage upon the ship, was duly honoured the bond Avould become void, and the mortgagor having died leaving" no kr.oAvn representatives, his will not having been admitted to probate, it AVas held that the presentation of the bill for acceptance at the olhce of the mortgagor Avas a sufhcient compliance with the agreement and that the bondholder had the right to proceed against the shi]i. 47. A bottomry bond may be made upon the ship, the cargo and the freight to be earned on the A'oyage Avhich is to be accomplished before th*' bond becomes payable, but subsequent freight I'annot be hypothecated, 1)ecause ]>y the very nature of a bottomry bond the person who takes it is 1 .Vdmiialty, 1S72 Feb. l.-f, L. H. IV P. U. 104. H(yrT(J.MJ!V AXI) [{KSl'OXDKNTIA 185 <'0>-DITI05rAI. no.\D. tobecomo liable lor the maritiine risk, and, therefore, nothiug <'an be hypotheeated, except something- u'hich is in daiiy'er of perishing by maritime risk duriuff the time that the bond kiuiit of nantek to effect i.oaxh. Sdares v. Hahx. ' 48. A master can only elFeet a loan upon a bottomry bond when he cannot otherwise raise the necessary funds to en- able him to reht the ship and to make the repairs required to continue his A'oyage. TiiK Kkuit Hon. Dr. LusniNMiTox, p. 8: — in ooiisiiloriiig tlie law iipplit';il)lo to this state of facts, it may l)e cxpcilicnt to advert tollic prineiplos on which tlio valiility of hottoinry hoiids lias alway- lioen luado to rest in the court (jf admiralty. In the lari^o majority of cases the master is neither owner nor part owner of the -hip or cargo ; when he takes up money on hottomry, he pledges the prope'My of others, and that. too. U])on maritime interest, which freqiicntiy is extremely liigh, and very onerous to the owners. To justity Inm in such an act, and to warrant the foreign merchant advancing iiis money on valiii security, it is requisite, by the naaritinic law. that the advances shall he merely to enable the ship to retit. or to pay for the repairs and dispatch of the vessel, for tlie compk-tidii of her voyage, and that the master shall be unable to obtain the same on jiersonal creilit. This rule has always been rigidly maintained, and with ii>i nthcr fpnilitication than that which justice and the interests of commerce necessarily call for. It the foreign merchant, after ilue uin'iiry, shall have reas(jnable ground for concliuling that the repairs are necessaiy, and that the n^.oney ciuinot be raised on personal creilit; then his secui'ity on the ship and cargo shall not be impeached or invalidated, because it might happen, that notwithstantling his reasonable and /;'Wirt/7ary or the money might have been had on personal creilit. (JiiHK v. Gahiunkii. ■' 49. Threat of arrest alone is not a ji;.stificatiou on the part of the master of a vessel to raise a loan on bottomry bond, when the vessel itself cannot be arrested. Mr. HAiKtN ParivK, p. 82: — From the accounts it is cb/ar that the supplies were furnished on the pers(;..al creilit of the master. There is too great a proneiiess on the part of masters of vessels to report to bottomry bonds ; it is onU' I'or necessary supplies or repairs that resort to a bottomry bond can be upheld, but oven then it must be such a necessity as re([uires the hypothecation, viz., no personal credit being to be obtained, Jlere the supplies, in the first place, 1 Admiralty, WAS Dsc. 18, III Moore 1. 2 Adminilty, 1841) Feb. 0, III .Moure 79. i\ f^' /••• 1 y ::• i' 18(1 IJOTTO.MRV AM) j^^;Sl•()^•J)K^'TJA KKaiT «;V MANTKK TO Kt't'KCT I.OAXN. !iri' iioi iH'cossiirv supjilics; \\w\\\ arc scvoral items in the accounts which arc dearly iiol tor iicci'-sai'y supplies or repaii's. Then at the time the iXODils art' sup]ilieil, no a^jtreomoiit is maile that their amount shall he secured iiy hj'pothecalion, that is essential; hut tlio (lay alti'i' the accounts arc ilclivered, the master, as lie alleiijes. upon a threat ot'arrest and without any previous agreement or existing iicces.xity executes a bottomry hond. Now, althougli ho might ha\e lieen arrested yet the ship couM not have heen detained ; thoro is no pretence that tliere was any attempt or threat to arrest the vessel. Smith v. (fori.i) et at.. Tiik "Prince Geokoe' rjO. A bottomry bond !^ivt>ii by the master of a ship for advances to obtain his discharge from arrest, at the instance of the consignees, on account of damage done on the voyage to i)art of the cargo, and also for payment of the port duties and other disbursements necessary to enabk' the ship to l)roseciite her voyage, was hekl good to the extent of the sums advaiict>d for the necessary supplies and the iiayment of the port duties, but was rejected for the money given to discharge the master from arrest. 51. The judgment of the court below rejecting the bond m toU) was reversed, as a bond may be good in part and void in another part. Wai,l.\ce v. FiEi.DEN. The '' Orie.ntai, ^ 52. The aitthority of the master of a ship to raise money on bond upon the ship ort he cargo for the absolute neces- saries of the ship, only arises when he cannot obtain the necessary advances ujion the personal credit of the OAVJier ; and sttch power to raise ntoney by bottomry belongs to the master, although the owner resides in the same country, but provided that there is no means of coKi.,iuuicatiou with the owner, and that the delay might cause the loss of the ship \Vii,Ki\soN v. Wilson. The " Bonaparte " ' 53. The master of a small Swedish vessel gave a bottomry bond upon the ship, freight and cargo. The ship was then in Sweden with cargo consigned in England. He gav(^ communii-ation of the bond to the owners of the vessel, but none to the consignees. The Privy Council held that, con- 8id(M'iiig the distance between Sweden and lilngland, and th(> means of commtmication, it was necessary for the validity of the bond, so far as the cargo was concerned, that the master shotild hiive » ommuuicated with the owners of 1 Adiniinlty, 1842 Fi-b. 19, IV Moore 21. 2 Admiralty, 1851 June 19, VII Moore 398. :i Admiralty, 1853 Jtme 29, VIII Moore 459. ■r TlW BSI jy i"M ^ .,. UOTTOJriIV AND IJKSPONDENTIA 187 KIGIIT OF M4NTI:K TO KFFKCT I.OAXN. the eargo bolbre £?iving the bond hypothecating the cargo, as the answer of the consignee Avould liave reached him within a time not inconvenient with reference to the cir- cumstances of the case. TirK Lord IvNKiirr Hrite, p. 474: — That it is an univiTsai rule lliat I ho master, if in a state of distress or ])rossure, hefore hypo- Ihccatinu; the Ciiriro, must eommunieate, or even endeavour to eom- munieate, with tlie owner of tlic carffo. has Tiot hoen alk'ged, and is a position that eoidd not he maintained ; i>ut it may safely, hotli on authority- and on principle, ho said, that in general it is his duty to do so, or it is his duty in general to attom]»t to do so. If, according to tlio circumstances in which he is placed, it is roasonahlo that he sliould, it was rational to c.\])oct tliat lie might ohtain an answer within a time not inconvenient with reference to the circumstances of the case; it must bo taken, therefore, upon authority and ])riii- ciplo, that it is the duty of the master to do so, or at least to make tiie attemjtt. DniA.N'TY V. IIakt. Tiik cahoo ex '• Hamhoiro " ' 54. The master of a vessel, without funds or t-redit, must communicate Avith the owners of the cargo before hypothecating the ship, i'reight and cargo, in order to enable him to pay the expense of the necessary repairs of the vcf-sel. The principle is well known, but there may be exceptional circiimstances, and the master is not bound to tranship his cargo even in a case where the ship and freight are of small value ; his first dixty is to carry the cargo to its destination in the same bottom, unless under the greatest difficulty. Lord KiNcisDowN, p. 820: — It is not, however, ditlicult to collect what really was said by the learned judge ', and with a slight correc- ti(m of the text it woidd stand thus: — " Jf according to the circuni- " stances in which he i.s placed, it be reasonable tliut he should — if " it bo rational to expect that he may— obtain an answer within a " time not inconvenient with reference to the circumstances of the " case, then it must be taken ujion authoritj- and principle that it is " the duty of the master to do so, or at least to make the attempt." That this is the intention, and, therefore, the true wording of the passage, wo have ascertained by communicating with the Lord Justice Knight Bruce who delivered the judgment Li the rule thus enunciated their Lordships are unable to discern any novelty, either in the principle on which it rests, or in its application to the case of the hypothecation of the cargo of a ship by the master, 'i'he character of agent for the owners of the cargo is imposed 1 Adminilly, 18G.1 Dec. t), IX Moore N. S. 289. 2 In the above cage of tiie " lionaparte." 18S HOTTOMIJY AXn IJKSl'OXDKNTIA '3, VI Moore X. .S- 136. FJ()TT().MI?Y AXI) l?K.Sl'()XI)KXT[A 189 RIftlfT OF MANTKK TO KrFtH'T l.4»AXN. amount, into oourt. The court Im'Iow disallowed this abate- ment, and ordered the -whole Ireiirht to Ix' paid into eourt. The Judicial Committee held that under the cireumNtauees, the master was warranted in resortini? to a bottomry bond, and that the necessity of the case warranted the hypothe- cation of the cargo as well as the ship and freight ; that as the latter was, by the ao-roement between the charterer and the master, in part paid in advance, the retention of the amount of such prepayment by the consignees of the cargo should be upheld, as the master by hypothecating the (char- tered freight could give no right to more fnught than the owner had a right to demand from the charterer. Bahkon v. Stkwakt. Tiie '' Panama " ' oY. Before resorting to bottomry lor raising necessary supplies, it is absolutely necessary, except in circumstances where it is not practicable, that notice should be given by the master to the owner of the vessel, and an allegation that the latter was insolvent is no excuse for not communicating with him, unless he has been judicially declared insolvent and the ownership of the vessel has bet'ome vested in his assignees, to whom such notice must then be given. Lord RoMti.i.Y. ]>. 4'M} -. — It rcsolvcw itself, therelbro, ^iololy into ii question of insolvency, and whether insolvency oxcusew the g'iving of notice, there having- heeii no jiulieial insolvency. Their Lordships are of opinion, tiiat if they were to lay down this as a principle, it would produce a serious evil. In the first place, it is very ditiicult to tell whether a pers(jn is insolvent. Is it to depend on the ulti- mate resuli of whether he was actually insolvent at the time, and that the opinion of the charterer was eorrect? The fact of whether a man is insolvent or not may plaintilf's land, to wit, the eastern portion. Was described in the deeds as containing " W acres, more or 1 -ss." The defendant's, to wit, the Avestern portion, " alxmt lifty acres ' ; but the descriptions in the deeds did not af>ree as to Avhere the line of boundary AVas to run. A land surveyor Avas appointed in court ; he made a report Avhich Avas homologated by the Superior court. The eifect of the Surveyor's report, Avas to make a boundary line, by Avhich the defendant got sixty-one acres, and the plaintilfs hind Avas reduced to eighty-tAvo acres. The .ludiciaU'ommittee, reversing the jiidgments of both courts beloAV, held that the i)roper constriiclion to ascertain the l)()undaiy line Avas to make the qirantity cou\'eyed agree Avuth the (piantity mentioned in the deed. The case was dilferent from that of a conveyance of a certain ascertained piece of land accurately described by its boundaries on all sides, Avith a statement that it contained so many acres, " or thereabout," when, if the quantity Avas iuaccuratidy stated, it did not atf'ect the transaction. if ■Silt Uicii.viu) T. KiNDKitsi.Kv. \). :>7(> : — It is a clear principle tlial iiMc iKU'l of a (Il'l'iI is so amiiiiruoiish" woi'di'cl that it V' 'l' I nee ea])ulile of two (iift'orent constructions, one of which is in acconli wiili, and tiic other ccnfhets witli, another part of the (k'od, ai)ont tiio ineaniii'!; ofwliicli liiero is no doulit, tlie iornier construction mist he adoptc'il as liio rii^lit or 10, am I (as an instance of the ap- plication of that general princijile) if, in a deed eonvevini;- land, the description of the land inteiuled to he conveyed is couched in such ainhij;u<)iis tenus that it is very douhtful what were intendod to he the hoiiiidarics of the land, and the language of the description e(|ually iidniiis of two dilllTcnt constructions, iheone ef wliich would make the quantity of the land conveyed a,t;rec Avitli tlie ipiaiitity inenlioiicd in the deed, and the other woul(i make the (piantity aitogTther ditferent, the former coiiHtriiction must prevail. BREACH OF CONTIUCT See CoNTiiACT, D.v.aiacu:. BUILDER RKKIMtXSIDIi.ITY. See AlK'HITECT .\i\l) CuNTUACTOR verbis. del tisaeni I Luwei- Ciiiiaila, 1807 Feb. 4, IV Moore N. Ci. 349. i^f l!i:j{lAI.S IIU m IJUllIA LS KIOHTTO KfCI.KSlANTKMI- JJuuwN V. liKs Ci itf; KT .M.uKirii.i.KHs UK i.CErvuK kt Fauriquk UK NoTUK-DaMK UK .MiiMHli.U, ' 60 To justify the refusal by the Catholic church of eii;le- siastical burial to the remains of one of its members, in the consecrated part of the cemetery where the deceased had bouijht a place to be buried in, it is necessary under the Quebec Uitual,which contains the la\v appli«'able tosufh case, that there should have been i)rior to the death of said membi'r a sentence of excommunication by name, nontimdini, published a^-ainst him, or that he should have been ad- judged to ])e uii /wchvur jinblic 61 A Fabrique may in their capacity be (Compelled by mandamus to uive to a (;atholic deceased, burial in that part of the cemetery consecrated by the church, on payment of the accixstomed dues. Sir Hohkkt I'iiimmokk. ]>. liO'.': — Xow, wlwit is llie question t ^ lie here decided? It is tiio v'\if\\X Dl'liiiiltord to iiitornieiit in tiicoi'dinai'v way in the cenictory of Ids parisii, a rigid onforeoaiile I)}' Ids rcjjre- ^;entativc. It may be olisiTved that the (Jure and Marguiilicrs aw only proprii'tors of liio parochial cenu'tery in the sense in which a Partion in l<-nnlanurial, involving these consetpiences, may be legally incurred, is not denied by the a|tpcl- lants. Their contention is, tliat it was not so incurred bytiuibord; ihat, according to the law of the religious community to which he belonged, he retainctl at the time of his death his right to be buried in the larger portion of the cemetery in the usual manner. Their Loi'dships are disposed to concur, with one qualification, in the opinion expressed by Jlr. .histice IJerthelot as to the mi.xed character of these questions. lie says; " Lc baptcme, le mariago, et la sepulture sout do matiere niixtc, et les eeclosiastiques ne peuvent se refuser de les administrer a coux de leurs paroissions qui y ont droit, comme residanls dans reneluve 1 Quebec, 1874 Xov. 21, L. R. VL P. C. 1J7. I!t2 BUIMALS / / . liliiiii RKJIIT T4> KCCLF.NIANTICAI.. (If ^!i parnisst', !i mollis copcnilaiil i(u'il n'y ait dos pciiies o('cl- ti(|U(s iiroiioiici'i's fdiitri' fiix j)ar I'evOijui' on aiiti't- autorltd ccrli'- siastiijut' coinputt'iitt'." It'llii- |iassaLC(' is t<> ''l' takon to iinjiiy tiiat il i.- ci)in|iot(.'nt to thi- lii-lio|i to (li'privc a IJoiiiaM Catiiolie siiiiji'd of his riniils. Iiy in'o- noiiiiciiii:; against him tx mero motu ecclosiastical jK'nallio>, tlioir IjoiiUiiips arc of opinion iluil tl\i' ]»ro]»osition is too wiilu. Tlioycon- ccivi' tiiat, if llic act hi' (pn'-tioiieil in a Coiift of jiistit-f. tlial couiM lias a riifjil to inipiirf, aiid is homnl to imjiiire. wlR-tiior tiiat a.' was in aiconianco witli the law and rules of (lisi-i|iliia' of tiu' Jionian Catholic Ciiurcli which oMain in Lower C'anatla, and wlicthcr the sentence, if any, hy which il is >oi|i,fht to ije Jiistilied, was reguhirly pronoiincc'l l>y an anthority conij>etont to pronounce it. It is worthy of oliservalion, as hearinj; hoth ujion the question of the atdtus of the IJonian Ciitholic Churcli in I^owcr C'anatla, and the manner of ascertaininentir avant lour mort. ti" A ceux qui. sans excuse legitime, n"auront pas satisfait ii lour devoir pascal, a moins qu'ils n'aient donne dos marques de contrition. 7" A ceux qui sont morts notoiro- meiit coiijiable.s de queUpie poche mortel, comme si un tidelo avail refuse de so confessor, ol do rocevoir los aulres sacremonts avant m HUUIALS i!t:j RIOIIT TO KCCLKNiANTICAI.. (liie do moiirir, sil t'-tait inort suns voulnir jKinloiinor Ti st>s («niit>iuiN, s'il avail I'-tt- assoz impie pour ljlas|ilit'iiu'r x'iciiiim'iit vt volontairt-- iiii'iit sans avoir (loiiiie auciin si^iu' do poniloiK'o. II no t'audrail pas user do la moino riirnour onvors ooliii <(ui aurait Masphonio par Iblio uu par la violonoo dii niai, oar en oo caw ios liiasplii^inos no soraiont jtas volonlairos, ni par oonsequonl dos ja'olios. H" Aiix poolioiirs puldicw qui soraiont morts dans rinii)onitonoo; lols sunt Ios odnou- binairos, Ios tillos ou t'onimos ]irostitudos, Ios soroiors ot Ios iiircours, usuriors, otc. A lY-i^ard dc coux dont Ios crinios soraiont soorots. conuno on no lour roiuso nas Ios saoromonts, en no doit ]»as aussi l.'ur rot'usor la supulluro ooolosiastiquo. Pour ooqui est dos oriiuinolH ([ui auront 6t6 oondanines t\ mort ot ox<$outos par ordro do la Justice, s ils sont mort pdnitonts, on pout lour acoordor la sepulture oool»5- siastiquo, niais sans ct-rdmonio. Lo curd ou vicairo y assisto sans surpliB, ot (lit les pritiros a voix basse. Quand il y aura(iuol([Uo douto sur cos sortes do choses, Ios curds nous consultcront ou nos grands vioairi's." The refusal of ecclesiastical burial of fJuibord is no jusliliod, and could not have been justiriod by cither the 1st, 2nd, 4lli, or "th of the above rules. To bring bin. within tlio ;{ril rule, it would be necessary I o show that ho was excommunicated by name. That such a sontonoo of excommunication might bo passed against a Roman Catholic in Canada and that it might bo the duty of the Civil Courts to respect and give ert'oot toil, their Lordships do not deny. It is no doul>t true, as has already been oliservod, that there are now in Canada no regular ecclwiastical courts, such as existed and wore rocognizotl by the state when the province formed part ot the dominions of Franco. It must, however, be remembered that a Hishop is always a judex ord'iiarius. according to the canon hiw ; and according lo the general canon law, may hold a Court and deliver judgment il ho has not aj)- pointed an official to act for him. And it must further be roniem- bered that, unless such sentence were rocognizoil, there would exist no means of determining amongst the Jionnin Catholics of ('anada the many questions touching faith and discipline which, upon the admitted canons of their Church, may arise amongst them. There is, however, no proof that, any sentence of excommunication was over passed against Guibord nominatim by the Bishop or any other ecclesiastical authority. Indeed, it was admitted at the Bar that there was none; their Lordships are, therefore, relieved from the necessity of considering how far such a sentence, if passed, might have boon examinable by the Temporal Court, when a question touching its legal ert'ect and validity- was brought before that Court. it should be borne in mind that an issue was distinctly raised by the pleadings upon the fact of such a sentence; and the necessity of such a sentence to justity the refusal scorns to be, to some extent, admitted by the allegation in the defendant's pleading thai {le ddcret), as it is there called, of the Administrator-CTonoral was ^^n, dicret nominal. In the course of the argument it was suggested, i athcr than argued, that the refusal ot ecclesiastical burial in Guibord's case 13 ,1- t " ■n I' 194 IIUIIIALS RUaiT T4» i:4'4'I.KNIANTI<'AL. iiii/jclit \)v Idoii^'lii within till' Oth of the above rult-s, and juhtiHcU on the /ground tliat, without h'^'itiniate reanon. he Inid i'ailud to euni- niuiiicate at Kaster. Mat ii])()n this tlieir Lordi^hips liave to observe tliat tlii> liiihiri' was not tia- ground on whieh ecelcsiastic al burial was diiiitticed : — " »^i ESTioN, — Pour quelle raison fen Joseph Guii)ord, eomme mcnibre de lliistitut Canadien, no pouvait-il jjas etre admis aux sacremcnts de I'lvj^lise? " JJfci'ON.sK. — I'areo que, eomme tel, il est considert? eomme pe- cheur ]iublic. On entend jjar pecheur public celui qui, pour une raison connue pul>liqiiement, ne pent participer aux sacrements de IKglise. M. Joseph Guibord, en appartenant a I'lnstitut Canadien, ap]iartenait k un Jnstitnt qui se trouvait, eomme il se trouve encore, sous les censures de rKglise, par la raison qu'ii posstide une biblio- theque contenant des livres defendus i)ar I'Kglise sous peine d'ex- communication, Intce sententiae encoiirue ipso facto, et rt^serveo au Pape. par le fait de la possession des ilits livres. Cettc esjiece d'ex- con\muiiicalion s'eneourt par le fait meme, ddn que Ton eonnait la loi de I'Kglise qui en defeml la lecture et la retenue, des que eela parvient a la connaissancc de ceux qui les possident. Cette excom- munication a atteint M. Guibord par le fait mCmequ'il dtait membre de rinstitut. Lorsqu'on est sons I'efl'et de la dite excommunication, quoique I'on puisse continuer tl etre membre de I'Eglise Cafholique, et que, de fait, Ton continue il en etre membre, Ton est privU'. vn ma lrati'iir. j'ai fait |)iililicr lo »|iiat(ii'/,i' aofit. mil huit coiit hoixaiitc-cl-iu'iil'. kKiUflk' amioiit'i' CHt jn'oiiiiili' iiimmc jiieco D. do la di'mainltTi'ssc. Voioi daiin (jutdH tiTiiio ci'ci est di'dai'i': " Aiii.si, nos irt-s chcrs I'roros, doiix clioHes soul ii'i >iit''riak'm(.'iil (.'t strictcmi'iit di''tL'iidiU's, savDJi': 1, de l.iiiu* ]iaiMic(k' rinstitiil (.'aiiadich taut iiuil I'liscji^mTa di'sdoi'triiics por- iiit'ii'iiscs ; ct 2, ik- |iid)lii'r, rcti'iiir. icarck'r, lire l'.l/i/i«(((>c du dil Instiliit |»oui" 18(i8. Ccs! deux commaiideinoiits de I'l^iflise MJiit en matii'Te u'rave, et il y a jtar eoiisLM|Ueiit uii ^'raiid \)w\i6 4 les violer Heiemmeiit. Kii eonsefiueiice, eelui ijiii ]>ersiste a vouloir demeurer dan^ le dit liifstitiit. on il lire im >eulement i^anler le sii^dit Annuain;, sans y elfe autoriM? par I'lOglise, se prive kii-meme des saerements, income a I'artielede la moft, ])ai'ee (iiie, ])Our etre di;;iie d'en appro- cher, il taut detester le ju'ela-, (lui donne la luurt a I'iime, et etre disjidsi'- iY lie plus lu eummettre." '• (^L'EsruiN. — fit re prive des saei'ements et (>tre exeommunie, eil-ee la mr-me ciiose? " Iilci'dNsK. — Dans le eas jiresent e'est la memo elinse? " (^UKSTiiiN. — L'exeoinmuiiieation ]ieiit-elle etre jirononeee sans qu'il soit iiu'ine fait usa^e du nn>l ? " JJfil'iiNSE. — .le ne suis pas |(ret a rejiondre a eette (juestion." — (Record. 14(). 7.) Jt is impossible wholU' to avoid a sus])iei(jn that it had originally been intended to rely (ni an i/jso facto exeomnmnieation. and that the sulist'(|uent defense of ■'pecheur jmblie " was resorted to when it beeame manifest that a sentence (tf exeommunication was neees- sary and that none had been pronouneed. What is this eatei^ory of " pifeheur public" to include? Is tho category capable ol' indetinito extension by means of the use of an et Cd'tera in the Public Jiitual ? Or, if the Ibrce of an et ra'tera is to be allowed to bring a man within the category of person liable to what in ecclesiastical law is a criminal penalty, must it not be con- lined to ort'ences ejusdem generis, as those specified? Guibord's ca.se did not come within any of the eiiumeralecl classes. Some argument was raised as to the effect of the words, *' (^uand il y aura quelque doute sur ces sortes de choses les Cures nous con- Bulteront ou notrc grand Vicaire ; " but their Lordships are of opi- nion that these words can at most imply a duty on the iiart of the Cur(i to consult the Ordinary' as to the application of the law in doubtful cases, not a jiower on the part of the Ordinary to enlarge the law in giving these directions, or to create a new categoiy of offenders. To allow u discretionarj' addition to, or an enlargement of the categories specified in the Uitual, would be fraught with the most startling consequences. For instance, the et cwtera might be, accord- ing to the supposeil exigency of the particular case, expanded so as to incluile within its bann any person lieing in habits of intimacy or conversing with a member of a literary society containing a pro- "1 ii 196 Ml'IMALS uwuT TO t:<'('i.i:Ni%NTir%i,. Iiiliiti'd I k ; any |icr>nii scndiiiif lii> son to a scIkhpI in tlic liliniiy (i| wliii'li llit'if was Midi a Imnk; ;;<>inu: lo a slio|( wlii'i'c siicli liuiiks well' hhIiI ; ami many fillicr iuslani'fs mi^'lil lie ailcli'(|. .Mdrcdvcr, tlic indi'X. wliifli already t'urliids (irotius, J'aM'al. I'niliicr. Tliuaniis, and .Si>ninndi, nii^ilit In' inaut' tlic studies of liis profc^ion. Tlicii' l.ordsliips arcsati>ticil tliat siicli adiscrotionary cnlari,fcmi'iit of lliccatci^orics in the liitiial would not iia\i' heeii deemed to he wilhiii the authority of (he l!i.sho|i hy the law of the fiailii'an Chufch as it existed in Canada hcfore llu- cession ; and, in th(>ii' oiiinion. it is not cslahlished that tiiefe has liecn such an altefation in tlie .sfnttis or law oflliat ( 'hiireli foiiiide(|on theeonsent ofils memhers.as would warrant KiK'h an iiitei'|ii'clation of tlic liiliial, and thai the ti-ue and Just conclusion of law on this point is, that the liu't of heinj; u luemher of this iiixtitule does not hrinif a man witiiin tlu' <'alef;oiy of a |iniilie Kilmer, to whom Christian luii'ial can he lej;'ally refused. It would further aiipear that, accordiiij^ to tiie ecclesiastical law of France, a |)ersonal sentence was in most cases required in order lo constitute a man a puhlic siniici'. Jean s do di.K ans, iiiort endiirci dans le crime, sjnis avoir voulii sc eonlesser, I'onta.s (hicide (|ue " le cure doit cnterriT cet homme en observant toutes les fornialites jiratiquees ])ar I'Kf^lise, sans poiivoir ni s'aiisenter, ni fciiidre de refuser la >-('piilluie eiv lesiasticpie, .sous pretexte d"intimi- (ler les autres pecheiirs semiilahles, ni entin ordoniier ii un autre pieti'c de I'entcrrer sans observer les ceremonies ordinaires." Diirond le Maillani' (Droit Canonique. t. 5, p. 442) says: — " On ne reconnait pour vdritables excommunies a fuir, quo les Payens ct les Juifs, ou les hereti(|ues eondamiuis et stSpares ainsi totalenient du eorjis des tidi'les. Jjos autres coiipablos do ditl'erents crimes (pi'lls n't'xpient point avant leiir morl ne soiit ])rives de la sepulture (pie lors(pi'ils nont dijuonces excomnuiniijs, ou (juo leur im- pc'nitenee tinale est tellenient noloire qti'on ne ])eut absolument s'eii dcguiser la connaissance. Lo moindre douto fire lo dtifunt liors dii eas de privation, ])arco que chacun est presume? penscr il son salut. " iSuivaiit les maxitnes du royaiimo, on ne jirivo do la sepulture ecck'siastiquc que les buret i(jues .stjpares do la communion do I'Eglise, ct low excommunies d^JnoiKX's. La notorii1t(j sur cette matioro n'cst jias absolument requise, j)arce qu'il y a des cas ou il est tri^is ndees- Baire de liiire res]iectcr ^ cot ei;;ard les saint es lois de I'l^gliso ; mais ello n'est pas aisijmcnt regno, u cause dos inconviSnionts gard(j parmi nous commo une telle injure, ou men-., comme un tel crime, ([uo chaque fidCde, jiour riionnour de la ivii'^ion, et la mcSmoire ou memo nriMAi.s w nil'IIT TO M'CliKNIANTK'AI,, [110 lew s ainsi rents .lo la r iin- l .s'oil ors du hit. illuiv gliso, ii'cst ndces- mais poiir- )arnu mumo U' hii'ii lie Mill tVrrt' CM .li'^ii-Clirist, csf rocevalilo iV .>.'cii plaimlro, (V'ttc plaiiilf sf |(nrlf (levant ile-^ juixex ^eeuliers, paree nu'elle intil- resHe en (|iit'lc|iie hi* nieine ile m'> nienilire.-*, rle le I rdre l d'exaniinor s'il ii'y aurait pas (pielnne niDven de defense lej^itinu- i\ prnp(»^er." No" personal senleiiee, siieli as is eonleniplated hy theso aulliori- lies, was, as alrt-aiiy pointed out, evef passed against (liiilMird. It is also to lie liorne in mind tliat no senteiiee, whatever iniLflit, have lu'en its value, was passed oven after (luihord's death. 'I'here is indeed a letter ealled n i/icnt ni' thv Adniinisi rator-deni'ral to the ("lire, which, alter relerriiiic to a letter of the Hisliop. written hefore (iiiiliord's death, refuses eeelesiastieal sepulture to him as a memher of th«> Institiiti'. The representatives of (iiiilioril were neither sum moiied to Nova tScotia, this new i)roclamation containing no piovision as to interior administration. The Judicial Committee held that the Island was not entitled to a separate constitution. CAPIAS isNiTisro or See Appeal : in mailers of penalty. 1 Cape Breton, 184G April 7, V .Moore 259. CAPIAS ISitriM.) OF R\XK OK BlUTISII NdHTH A.MERICA V. StRONO ' '1 %\\ 2. The law in reqiiiriug au affidavit I'rom the creditor for the issuiug of a writ oi' ai/nas, that he fears the debt will be lost iinless the debtor is immediately arrested, has reference to a loss of the debt, so far as the debtor himself is cou- cerued as well as with regard to any security which he may have given for the debt. 3. The holder of a promissory note, althovigh secured by endorsers, may take a cn/iins against the debtor and give the ordinary affidavit including the required words to the effect that he believes that without the benefit of the attachment the plaintiff will lose his debt or sustain damage ; and this writ cannot be contested on the sole ground that the creditor could not swear that he feared his debt might be lost, be- cause he might be paid by the endorsers. CARGO See Affreiohmext. Bottomry and Respondentia, Colli- sion, Merchant shippin(t. CARRIER DELIVERY. See Afreight:ment : damage for delay in ship/nng, Merchant shippinCt : duties and liubilities of oionerx masters an I pilots. KE«i.»riEM'E. See Collision : parties in fault. RKSI>0>NIItIMTY OF The Peninsular and Oriental Steam Xavioa- TIDN CoMI'ANV V. SlIAXl) ^ 4. A(H?ording to the English laAv, carriers have the right to limit their responsibility by special agreement; and a limitation of responsibility imposed by the stipulations writ- ten on the ticket delivered to the forwarding party, which ticket must be considered as the contract bet*veen the parties, with regard to any loss, exempts the company from responsibility for the loss of baggage, when no fault is proved against the company. Ohrloff v. Briscall. The " IIelene " ' "). A bill of lading delivered to the owner of 47 casks of oil to be shipped from L' " nn to Liverpool, contained in 1 Halifax, 187(5 Feb. 10, L. R. I Appeal Ciisej307. 2 Miuiritiu3, 1865 June 23, I[[ Moore N. S. 273. 3 Admiralty, 18G0 August 4, XIV Liuv Times N. S. 873. ill CAEHIHI? 203 KEHPOXNiniMTV OF the margiu the words : " not aoi-ouutable lor leakage." The oil was stowed alongside of rags and avooI, which formed part of the cargo and belonged to same person as the oil. During the voyage nearly half of the oil leaked, owing to the heat caused by the wool. Neither shippers nor shipowners knew of the ri^l' of stowing oil with wool. The charterers were frequently on board during the load- ing, and there was no fault found or complaint made as to the mode of stowage. The Judicial Committee held that the ignorance on the part of the shipoAvners of the risk of stoAving the two materials together did not amount to negligence on their part, and even if they had known such risk, the mere fact of the shipoAvner not putting up bixlkheads A\as noeA'idence of necligence. 0. The Avord " leakage " in the bill of lading Avas not confined to " ordinary leakage.' but included leakage Avith- out limit. And, moreover, the memorandum on the 1)111 of lading protected the shipoAvner as to all leakage, except that caused by negligence, and, therefore, if there Avas no negligence shoAA'u, there Avas no cause of action. MOFKATT A'. B.VTEMAN ' 7. Action for negligence by the defendant in couA'eying the plaintiff. AA'ho Avas a ""ecorator and gardener in his ser- A'ice, to perform for him certain Avork. The defendant drove, and Avhile on the road the kingbolt of the carriage broke, the horses bolted, the carriage was OA'erturned, and the plaintiff injured. There AA'as no evidence of gross neglect on the part of the defendant. In the absence of any evidence of gross negligence on the part of the defendant, the plaintiff Avas held not entitled to recover damages ; and the evidence did not disclose such negligence as to render the defendant, performing a gra- tuitous service for the plaintiff, responsible. The " Ida " ' 8. A bill of lading containing the Avords " ship/ied in good order and tondilion hi/...," but on the face of Avhich the master of the vessel had Avriten the AVords " ignoro qualita e qwinfita,'' cannot be taken as a /irima facie admission of the state of the cargo at the time of the shipping. 9. "Whtni the plaiutitf in an action of damages against a carrier does not proA'e that the goods Avere deliA'ered in 1 Vietoiiii, 1869 Dec. 14, VI Moore X. .S. 3G9. 2 Admiralty, 1875 March 23, XXFI Law Times N. .S. 511. W • .--rw 204 CAIllUKl} hi * " Hi RKNl>O^NIIII^IT¥ OF fioocl order, he cauuot siici't'cd unless ho proves that the dumagos have been caused by the fault of the carrier. .MooKK V. jrARHIS ' 10. A master of an linglish ship made, in England, a con- tract to carry certain packages of t(ia to Toronto ; the goods to be delivered at Montreal at a railway station. The bill of lading had the following clause : •' No damage that can be in- sured against will be paid far, nor will aui/ claivi whatever be admitted unless made before the goods are removed. It was held that under the la^v of England, which is a]>plicable in these cases, this condition, although in its first clause limiied to insixrable damage, applied as regards its second clause to all damages, whether apparent or latent. n. As a matter of fact, their Lordships «'onsidered that the damage in this cause might have been discovered before the removal of the goods by an examination of the packages conducted Avith reasonable care and skill. Sill Mii.NTAuuE H. 8.MITII, p. IJ^It : ^ — X isliipowiier may dioose to bay, I will not be liablo for any damage to an arlicle of this kind, unless a claim is made so tiiat it may lie iooi^ed into and checked by my agents before the goods are removed from their control, and when a condition to this etl'o -t is found in a bill of lading, expressed ill language which in its ordinary and natural sense includes all damages, whether latent or not, can the courts undertak-e to say it is so unreasonaiile thai the parties could not have meant what they liave said ? No doubt this condition may bear hardl}' on consignees, but so also may the very large exceptions to the responsibility of the shipowner inserted in the body of this bill of lading. (X-rtaini^) no reason for narrowing the scope of the condition can be gathereil from the general tenor of the instrument, which is manifes'.ly framed throughout with a view to exempt the shi])0wner (a> far as could be <'';reseen) from liability for damage. It may be that thi.-i has been lone to an unreasonable extent, but the plaiiititt's are merchants and Mien of business, and cannot be relieved from an impi'ovident con- I ract, it it really be improvident. Possibly in shipi)ing underbills jf lading thus framed, the merchant gets a corresponding advantage ia a lower rate of freight. CAUTIONNEMENT See Suretyship. CEllTIORAlil APPEAI< IN Boston v. Lkmevke - 12. No appeal lies from the f^uperior Court to the Court of Queen's Bench in the Province of Quebec in matters of cer- tiorari. 1 Quebec, 187C April 7, L. U. I Appeal Cases 318. 2 Quebec, 1870 Jan. 15, VI Mooro X. .S. 427. ('KKTlOHAin 205 POWER TO INNIIE The CoLONrAi. Bank of Ai;s'j1{ai,asia v. Wi'.l.w ' 18. When the power to issue certiorari is taken away by statute or when it is not given, a Superior court is not absolutely deprived of the power to issue the writ ; but its aiitiou as to the Avrit is controlled and limited, and it cannot quash an order or a judgment coniplaiuvid of by certiorari, ext;ept upon the ground either of a manifest defect of juris- diction in the tribunal that made the order, or of manifest fraud in the party proimring it. CEMETERY See Burials : riirht to eccksinslimi . cLOMiivG or. See Corporation (Municipal) : powers of. CHAMPERTY AND MAINTENANCE WHAT IN FisciiKK V. Xaicker '•' 14. Champerty and maintenance is an immoral contract, contrary to public policy ; it i)romotes unnecessary litiga- tion, and is null in law. Loud Kinosdown, p. 'Jli : — The court scorn very properly to have considered tliat the champerty, or more properly, the maintonance into which ihcy wore incpiiring, was something whicii must iiavo the ([ualitics attributed to ciiami)crty or iiiaintciianco by the English law: it must ho something against good policy and justice, some- thing tending to promote unnecessary litigation, something tliat in a legal sense is immoral, and to tlio constitution of which a bad motive in the same sonso is necessary. JIam (,'oomar Coondoo v. Chunder Canto Mockkr.jee ' 15. Their Lordshiiis, after the examination of a great num- ber of cases decided in India, held that the English law of maintenance and champerty is not in force as specific law in India. Iti. Nevertheless, a contract oi' this nature, even in India, ought to be held null and void as bcung against public policy. But, a fair agreement to su])ply funds to carry on a suit in consideration of having a share of the property, ii' recovered, ought not to be regarded as being per se, opposed to public policy. Sir MoNTAiiUE E. S.MiTrr, p. 210 :— Indeed, cases may bo easily- supposed in which it would be in furtherance of right and justice. 1 Victoria, 1874 March 23, L. R. V. P. C. 417. 2 Madura, 1800 March 7, II Law Tiroes .\. S. 94. 3 Bengal, 1870 Nov. 23, L. R. If Appeal Cases 180. 206 ClIA.Ml'KRTY AND MAINTKNAXCIO > !!:: I r; :/, I <• .1' j5 If! WHAT IN and iiL'fi'Hsary to resist oppivssion. that a suitor who had a just title to projH'rly. and no means except the jiroijorty itsell", sliould bo assisted in tins manner. But aifreements oi" tins kind ought to be carefully watched, ami wlien found to be extortionate and unconscionaldo, so as to lie incfiuitable against the party ; or to he made, not with the bond fide object of assisting a claim believed to be Just, and of obtaining a reasonable rocom])ense therefor, imt for improper objects, as for the purposes of gamhling in litigation, or of injuring or oppressing others liy al)etling and encouraging unrighteous suits, so as to be contrary to public policy. —ctlect ought not to he given to them. CESSION DE BIENS See Abandon.mknt of property, Insolvency. CHATTEL MORTGAGE coxntrvction «»f Weh.steu v. Powkr ' 17. A mortgage was jrivon on a certaiu number of branded sheep and herds of cattlo on a Rnn in the colony, with the issue, increase, and produce thereof. Held that the mortgage was limited to the issue and in- crease of such specific sheep, and did not include any sheep afterwards brought upon the Run, thoiigh in substitution of those specified in the original mortgage. PONNENNION IS T.VTHOK.M V. AnDIIEE ■* 18. In Ceylon, where the Roman-Dutch laws prevail, possession is not required for the validity of a chattel mort- gage, duly made in writing before a notary or created by the effect of law, not only against the debtor himself, but against his general »;reditors, even in the hands of a bona fide \n\T- chaser, without notice. But the rule has been modified by legislation to this extent : that if goods left in the possession of a mortgagee are sold, or mortgaged by him to another person, they cannot be folloAved into the hands of such transferee for vahie ; but the contract is binding on the debtor, and the goods themselves may be taken if they remain in his hands. CHARTER PARTY See Affreightment. CHILDREN 19. Does the word children, enfaats, used in a will apply to the grand-children, petits-enfants ? See Will : construction of will, Crown lands, Fillvtiox, Legacy. 1 New South Wales, 1808 Mai'ch 13, V .Moore \. S. 02. 2 Island of Ceylon, 18G3 July 15, I Moore X. S. 386. V H U K C H 207 STATION OF <-ATHOLI<' 4'IIVIU'II I\ CA.XAOA. Brown v. Lks Ciitf; kt .Mahhuii.i.khs dk i,'. The following are the public documents which shew liow the lioman Catholic church in Lower Canada was dealt with on the conquest and cession of the province From these documents ' it would follow that, although the lioman Catholic church in Canada may on the conquest have ceased to be an established church in the full sense of the term, it nevertiieless, continued to be a church recognized by the State ; retaining its en- dowments, and continuing to have certain rights (e. g. the jjerception of " dimes " from its members) enforceable at law. It has been contended on behalf of the appellants that the eflPect of the Act of Cession, tiie Treaty, and subsequent legislation, has been to leave the law of the lioman Catholic church as it existed 1 Quebec, 1874 Nov. 21, L. R. VI P. C. 157. 2 Deed of Cession, 27th article ; Trcatv of 1793 ; 14 Geo. 3, ch. 83, 177t. 208 CJlUIJCll T r < r - 1: 1; ,f < STATIN OF C.iTIIOI.H' CIII'HCH I.\ <'ANADA. and WiiH in forco liet'oiv tlio ees.sion, to Hccuro to the Roman ('atholie iiiliiil)iliuits ol'TjiiwiT Canada all the |)riviU'i:;o.s wiiicli (lioir t'athors, as Ki'cMch hiiltjwts, then I'lijoycd iindor (he head of llu^ lil)ortit's of the CralliniM ciiuiTh ; anil furllior, thai the Court of (^lu.'n's Honch, fivalc'd in 17'.'4, |)0,ssosHed, and that the existinji; Superior Court now possesses, as tiie Superior Council lu^-etoforc possessed, the power of enibreinir those privilej^es hy proceedings in the nature of appe.l fommc i/'abtts. C'onsidering the altered cireunistanees of the Roman Catholic ehureh in Canada, the non-existence of any recognized ecclesiastical courts in that province, such as those in France whi(di it was the office of an apjx'l. coinmc d'abus to control and keep within their jurisdiction ; and the absence of any mention in the recent Code of Procedure tor Lower Canada of such a [troceeding, their Lordships would feel considerable dilficulty in attirining the latter of the above propositicms. Mr. Justice Mondelet, indeed, refers in hiw judgment to various cases of a mixed character ' in which I lie civil courts appear at first right to have recently exorcised u jurisdictioa somewiuit analogous to that exorcised in the appel comme d'abus. liut on examinati(m, these cases prove to bo suits of a dittbrcnt character, actions for damages against spiritual persons! for wrongs done l)y tlieni in their .spiritual capacities. Their Lordships do not, however, thiidc it necessary to express any ojtinion as to the competence of the civil courts to entertain a suit in the nature of the " ap2)cl ruinine d'abus,'' as they agree with, .Mr. Justice Mackay and other judges of the (Jourt of Revision, that in such a suit tlio procedure must be ditl'eri'nt from the i)resent, iind that at least it would be necessary to bring tiie proper ecclesiastical authorities before the court as defendants. It is another and a ilitl'erent question, to bo considered hereafter, whether the jurisprudence and precedents relating to the " rt/jyjei comme d'abus " may not be considered by their Lordships as evidencing the law of the church in Canada, by the maladministra- tion of which the Appellant complains that he has boon wronged. Nor tlo tiu'ir Lordshi|)s thiidv it necessary to ])ronounce any opinion upon the ditticult (pu'slions which were raised in the argu- ment before them touching the jireciso status, at the pro.sent time, of the J{onuin Catholic ('liurch in Canada. It has, on the one hand, undoubtedly, since the cession, wanted some of the characteristics of an established church ; whilst, on the other hand, it ditl'ers material- ly in several importiint particuhirs from such voluntary religious societies as the Anglican ('hurch in the colonies, or, the liomau Catholic Church in Kngland. The payment of "dimes" to tho clergy of tho lloman Catholic Church bj' its lay members; and the ratoability of the latter to the maintenance of j)arochial cemeteries, are secured by the law and statutes. These rights of the church musl beget corresponding obligations, and it is obvious that this 1 WurlHe \-. Dhhnp o/ Qiirbec, Dicinon dcs Trilntnaur, vol. II, p. 68 ; Jarretv. Seiii'cal, 4 L. C. J. 213 ; l.irocque v. Micliou, 1 L. 0. J. 181. CIIUHCII 200 HTATI'N »F <-ATIIOI.IC' <l IMII.MItYI'I'.lll.i^ « Ill'iU II I\ <'AX.il»A. lo till- clU'ct (liiit, ill uU niiilti'r.s wliith its Synod was coiii- pcli'iil to (It'ul with iiiul (Ictt'i-iiiiiio, tho will ol' the inajorily as fxprt'ssi'd hy tlicir vote was Itiiidiiii;' upon every lueniber of tlic Synod. CIVIL STATUS See AiiiKN, CiiuiK'ii. Intkij.wtkjnai- Law, Minouity. CODES OF LAW «0.\!»»TllirTIO\ Of TAXAIIIAX . ill TClllNSON V, CrlM.KSI'IK 27. The old iMeiich law doAvn to the cession of Canada to I'iMulaiKl, ill 17t!:i, is the law prevailing- in Lower Cainula ; but the ()rd(ni7i(tiiies not ren'istered iH'ver l»etiiiiie hiAV in this provinee, as it is a prineiple olthe French hiAV that all Ordonnmim not reffistered, are void. lis. The .Indicial Coniiniliee Ijave in the lollowiiiir ea,ses applied li'eiieral ruloy ol' coiistrnction to the Canadian Code Civil and Code of Civil I'rocdnro, or constrned some special Avonls contained in them in a general manner. HkKSK v. Di KAl X '' SiH .Ia.mks Coi.vii.i.K, p. iild: — ^Tiioir LonUliips arc ut ojiiiiioii that for tlic law which ohiains in Jjoinr Cnnaila tlicy ou,t,'lil to look, in tlic lirst iiistajicc, to the Civil Coile of that province, whicli, tliipii^li cnacti'd after tlic coninicnccinciit of tiii^ action, is admitted to lie, wlicn llic c()ntrar_v In not cx|pi'cs-. 117: — -The Civil Code (which was pro- niulg'atcd licl'ore the datt' oi Mr. Frascr's will) is the jirimary source from which the law of Lower Canada is now to be drawn. When tills Code contains rules on any given subject comjdote in themselves, they alone are binding, and cannot be controlled by tho pre-existing laws on the subject, which can then be pro])erly referred to ordy to elucidate, in cases of doubtful construction, the languiigo of the Code. On tlie otlu'r hand, when the Code refers to existing laws, not formulated in its articles, or in so far as on any subject it is silent, inquiry is iiermissible into the old law, and it will in many cases become a ([uestion of construction what and how much of that law /einains in force, or is abrogated as being contrary to or inconsistent witli the provisions of the Code. (See article 2G13.) 1 Lower Canada, 1844 May 9, IV Moore 378. 2 Lower Canada, 1872 Xov. 9, \X Moore N. S. 281. 3 Quebec, 1374 Nov. 2G, L. R. VI P. C. 90. Et._ A CODKS OF LAW 111 4'ONNTHl't TION «»' s|i('('iiil ii.-o in tlio iiislnuiii'iil now ln'ini,' cun-'tnu'il, ilicii' Jinrilsliijis Inivt- rDund nianv i»asMi;;;i'> in ihc Civil Cuilf wiiiTc tlic wnriN '• cKiniidililf " mid '• nimpti'" iiri' iiM'il >ti'icii\' tif tlioM' wlin life liimiul l \vil'i'"s j; Is, art. ll'J.'); (if an atjont. art. 171.">; of partners, art. isl'^, Tln'V liavc imt ln'on I'ffi'rrod to and tlicv have not found any pa^aiic in liic Civil ('ode wIh'IH- tlu'sc words arc used to dcnolf generally a ddiior or |icrsoii iiiidcr liaMlity. |''or creditors and di'litor'^ tlu' woi'iU u-i'ij arc " <'n'iiticii'r.'<" and " ilt'hifi'iii:^." >vv tit. Ill lliroiiM-lioMl, and partiuiilarly faii. 7. To I'Xpri'vs ifi-ncral lial'iiily tin' ('ode ii>i's ^u(•ll vi'i'lis as "liitir," '' rqii'iti/rc," ^^ rhan/cr," and tlu'ir inflexions or derivatives. If there lie any dilferi'iiec lictweeii ilie l''reiicli and I'liinlidi ver- sions, liieir LonUlnji- lliinU llial in a matter wlueli i> e\ideiill\- "lie of i''reneli law. the l'"reiieli \eisioM usini;' a I"'ri'iieh technical leriii should lie the leadiii,:;' one. There inin'hl he eases in whii'h -uch a (question would arir-e. J'. Hill: — Tiie ajiju'llants at the har have pressed somewhat too ali.-olutely the ar.i;ument that a I'roei'dure Code is not iiiteiideil to enact siili'-laiilial law, and that this par of the Procedure Cmle in only intended to i;i\i' directions to the eoiiiMs how lo cai'ry the rules of the Civil t!ode into ellect. Some of the articles ol the Procedure Code (e. g. art. (il(l) do create estahlished ri^dits not touched hy the Civil Code. The two codes sliouhl ho construed toj^ether in this part just as if the articles of the Procedure Code followed the cor- responding articles of the Civil Codi;. Sec -\.uam)o.n.mknt ok pro- V¥.nT\ : pciuiltijfor rcfxsal, Sliistitutiox. COLLISION MK.\ rOK UAMAUr.N ItV IIah.mkk v. Hki.l. Tiik •" Hold Hi cclki n. l)iiiuai;isi()X Ur.Ti FOR DAMA«KN BY hands mIio may go, and can l)e enforced at any lime, i.ro- vidcd there haw l)eeu no improper delay, or laches, in enforcing' such lien. 8::5. In this case a delay of three years to arrest the ship was held not an unreasonable d<-lay, the owners oj" the damaged vessel having used reasonable diligence to dis- cover her Avhtireabonts. 84. Reasonable diligence means not doing everything possil)le, l)nt doing that, which, under ordinary circum- stances, and having regard to expense and dilhculty, could be reasonably required. oxi«* PKOH.ixDi. See EVIDENCE : iisdein verbis. VXmiKH I.\ FAII.T. 1'kTI.KV v. C.VTTO. IhK " ClimsTIANA " ' 35. In towing a vessel, a steam-tug came across a brig and was haibid by the pilot on l)oard the vessel to go totlni westAvard of the l)rig ; it was some time after the order was given before it AVas obeyed, and there AVas a collision betAveen the brig and the vessel. 8(3. Imperfect obedience is disobedience and it Avas un- jvistiliable under the circumstances, and the claims of the steam-tug fir towage Avas dismissed. V.vi;.\ V. SiiKKKEu. TiiK " brM.vo.vxDA Sara ('lasina '' ■' 87. The Tiile of the Admiralty Court when; in collision (jases both ^'ities are mutiially blameiible and l)oth guilty of negligence, is to apportion equally the damages betAveeu the resi)ective owners of the A'es.sels. 88. The OAViiers ol' an English A-essel brought an action for damages against a foreign vessel ; tlie OAvners of this latter ship brought a (;ross action against the English A^essel. Both actions Averts heard as one caiise by consent. The Admiralty C-ourt held, that the Illnglish A''essel Avas the cause of the damage, and dismissed the foreign vessel from the action. The Judicial Committee being of opinion that both A'essels Avere in fault, decided that the danu.ge Avould be equally divided betAveen them, and remitt(^d the cause to the court beloAV, to asi-ertain the amount of damage, and to divide the same equally betAveen the OAvners of the respective vessels. Vai.kn'tin'k y. Clki'oii ' 89. The regulations respecting the exhibiting of lights by vessels, and other provisions guarding against accidents 1 AJminilty, 1R48 .Inly r>, VI Moore .'i21. 2 AdiuirnllV, Ifi.li Feb. l!t, VIII Mooro ir,. 3 Admiralty, 1854 July 18, VIII .Moore 107. COIXLSIOX 213 PAKTIKN I3f FAULT. irom lollisiou, made by tht^ Lords of the Admiralty pur- suant to the powers yt^sted in them by statute have the force of the Act of Parliameut, and are to be strictly and literally complied "with. 40. When a barque anchored with a light hoisted ou the larboard mizzeu riij^giug is nrn into liy a steamer, the owner of the barque cannot recover against the steamtr, the regula- tions not being literally complied with, as the light ought to have been exhibited at the mast-head. MaCKAY v. IkOHKRTS. TlIK •' I'nKTL'NK ' ' 41. A barqne was solely to blame for causing a collision olf the Lizard, for not giving way upon a dark night to a small schooner close hauled to the Aviud on the starboard tack under close reefed sails. The 1)arque was condemned under section 28 of the 14th and 15th Vict., ch. 7!>. TiiK Xktiikim.ands Stkajf J?oat Company v. Stvi.k.s. TiiK " Batavfkr ■' ' 42. A large stcnimer in the charge of a licensed pilot, in ])roceeding up the i)ool at nearly high tide, and at a sjxM'd dangerous to small craft, caused snch a swell that a barge laden Avith coals was sunk. The steamer was to blame, as the swell Avhich sunk the barge was attribiitable to the speed at which she was doing. Lawson V. Cahk. TlIK •• James" ' 43. A shi]) was going slowly, her head towards the north, and came across another one also going sloAvlyAvith the tide to the south, Avhen a collision took ]ilace between them, the first having neglected to put \ip her helm in time, and the other not throAving back her headyards to avoid the col- lision. The Admiralty court decreed the damages to be equally divided bet^ jen them. 44. This decree Av%as reversed by the Jixdicial Committee, ou the ground that the rule of the Admiralty court, that in in case of mutual blame the damage Avas to be divided, Avas superseded by Statute 17th aud 18th Vict., AKTIf:S IX FAILT. the owiiLT of the ono vessel reooveriug damages I'lom the other vessel, although also in fault. 4i"). Held also, that the above sections 296 and 2!)8 were not eouliued to vessels strictly proceeding on their several voj'ages, but Avere equally applicable to vessels lying to. TiioMi'sox V. Frow. The " DrMKRiE>" ' 46. A schooner Aviththe wind free, sailing from the south- west, and steering Avith a barc^ue on the starboard tack, closehauled, is bound by the general rule of the sea or navi- gation to give way, that is to go astern. 47. A schooner not complying with this rule came into collision Avith a barc^ue Avhich kept her course. In such circumstances, the barque Avas held to ha-\ e acted rightly as it Avas to l)e presumed that the schooner Avould give Avay to her, and the schooner not having seen the l)arcjne till too late, and then ported her helm, vA^hich led to the collision, Avas alone to 1)lame. (.'iii.RcnwAun \. Pal.mkr. Tiik • Viaih ' - 48. A A'essel at anchor in Dover Roaih, in a fair Avay about a mile from the shore, ojiposite the harbour, AA'aiting for the ebb tide, on a dark night, AA'here vessels Avere accustomed to anchor, having a l)right light ])urning, Avhich Avas placed on a spar irnderthe boom of the foresail, about four feet on the starboard side of the mast, and about tAA'enty feet above the bidmarks, Avas run doAA'n l)y a steamer. It A\'as proved that tliere Avas a light exhibited on board the ves.sel, wiiich could ])e seen as if it had been hoisted at the mast-head and that it Avould have l)een seen by the steamer if a projier look out had lieen kept. The Jixdicial Committee held that the statute 17th and 18th Vict., ch. 104, sect. 298 did not a])ply. and the oAvners of the vessel had the right to recover from the steamtir the loss they sustained. .Mui{(i.vN v. Sr.M. The " London " ■' 49. The fact of its beluga clear bright moonlight night, does not relieA'e a sailing vessel hove-to, from conii)liance Avith the Admiraltv regulations, made in i>ursuance of the Statute 14th and loth Vict., ch. 79, sect. 295, for exhibiting a light. 50. The omission toshoAV a light being the cause of the collision, as it Avas jirobable that if a light had ])eeu shoAVU 1 Adinimlty, 18J'l July 1 1, X Moore 401. 2 Admiralty, 1856 May 4, .\ Moore 472. 3 Admiralty, 18"i7 Oec. 1"), Xl Moore .''.07. COLLISION 215 ol" tho PARTIRS IX FAULT. the collision would not have ocimrred, and there being no default of AVatehfulness by the steamer, the owners of the sailing vessel Avere held coneluded by section 298 of Sta- tute ITth and 18th Viet., eh. 104, from recovering damage against the steamer. ZUCASTI V. L.VMEK, TlIE "NllIlTH AmEHICAN " ' 51. A vessel on her port tack is bound to give way to a vessel on her starboard tack, and, if there is any danger of collision, to port her lielm and go to leeward of the other vessel, which is to keep her course. Stevens v. (tourley. The '• Cleaddn" - 52. A vessel in tow of a tug, and the tug towing, is to be considered as one vessel, for the conduct of Avhich the vessel towed is responsil)le. 53. The diity of a steam tug Avith a vessel in toAV at night, is to avoid other A'essels. A foreign A^essel meeting another vessel is not governed by the Admiralty regulations but by the nile of the sea. 54. But a British ship in toAV of a steam tug, meeting a foreign ship at night, is gOA^erned by the Admiralty regu- lations. 55. When a foreign vessel, close haixled on the starboard tack, ajiproaches another A'essel at night, she is bound to keep her course. LoRn Chelmsford, p. 07 :— Tlie ".l. J{. Sfevfiis," iK'ing a fi>roi<;n vessel, was not bound by our rej;' illations, but Avas govoriKHl by tlio rule of tho sea, Avhich required her, being close-hauled on tho lar- liotird tuck, if she was meeting another a-cssoI, to Ivcep her course. The '• Cleadon " being in tow of the tug, it is admitted that sho and the tug must be considered to be one ship, the motive power being in tho tug and the governing power in the " Cle(t(lo7i," the shi[) that was being towed. Under these circumstances, her rule f)f conduct would bo our regulations, because she Avould not be aware whether tho vessel sho Avas meeting Avas a foreign or a British ship; at all events, as she Avas a Britisli ship, of course she must be governed by the rules tluit ap])ly to British ships. As she Avas a steamer it Avas her duty to get out of the Avay of another shi]) that sho Avas meeting, and this more especially became incumbent upon her from the situa- tion in which she was placed, because it appears that (here is nothing which can indicate to any other vessel that a vessel is being towed, and, of course, under such circumstances, tho combined vessels being a liuig body, and a vessel mooting them taking for granted, by seeing 1 Admlrultj-, ISr.S Dec. 4, XI[ Moore 331. 2 Admiralty, ISi'.O Dec. 2, XIV Moore 92. r 2u; COLLISION hi t H^: h * /( ' >*■ ' ■» ' A 1- ' " -. '* * ' * v r- * ' .- !. i * / t tf 1^' 4 • « ' ,'- , ill' i'" 2i i£ P.IRTIKN I?>' FAL'I.T. the lif^htH, that tlicy are iiidependenl vessels, -would lie more careful, under such eireiinistanecs, to yive a witie Ijertli to any vessel that they are meeting, ]ioLi) V. Henry et al. Tiik "Despatch ' 5t). Where a vossel at anchor is not iu the safest berth, so for as her oavu safety is coucerned, but is safe so far as other vessels are i-oucerned, tliis fact alone "vvill not be viewed as oontril)utory negligence, in case of another vessel running against her. 3Lviii>ox V. FisiiEK. •• TUK InDKI'KXDKNCE " * oT. The 296th section of the Merchant Shipping Act, 17th and 18th Vict., c. 104, provides that whenever any ship, Avhether a steamer or a .sailing ship, ])roceeding iu one dir.'ction, meets another ship, whether a steamer or sailing ship, proceeding in another direction, so that if both ships were to continue their respective coui'ses they could pass so near as to involve any risk of a collision, the helms of both ships shall be ])ut to port, so as to jniss on the port side of each other. The Judicial Committee held that this section ajipiies only to a case Avhen ves.sels meet in opposite direc- tions, end on, or nearly so ; w^hen the observance of the rule to port Avould make the vessels diverge in ditierent direc- tions, so as to pass port side to i>ort side. But, that a steam tag with a vessel in tow is not a free steamer, and bound, under all circumstances, to give Avay to a sailing vessel close-hauled. Lord KiNrinli measures iiiinent, ^/oll■'■ Ifulated to avoid it. Sue at. n ■ ' J mruucj AMKiufAx Stkam Xavigation Co. v. The North OF he . i> WKiNuCn, The "Kelijise" and the "Saxonia." ISfJl Dee. 10, X\ ,Voore -HVl. JirniiY V. EoissEVAFN. The '• IviVi'TiAN " ' CI. The proxi: "te < ■ - of a collision Avas the breaking of a steamer's port tali) ) >\-hil'> mooriug. The steamer was blamed. //>.leaded, but were to be inferred from the pleadings and the evidence. Thussi'kk v. BiiKWKU. The "Citv of Oaulfsle" ' m. The Admiralty regulations of 185S provide : " that all " sea-going siiiliug vessels when under AVay or being towed, " shall, betAveen .sunset and sunrise, exhibit a green light " on the starboard side, and a red light on tlu^ port side of •• the vessel " ; and " that the coloured lights shall be iixed, '■ wherever it is practicable so to exhibit them."" In a case where the lights were placed on l)oard, thouu'h only six feet cjjove deck, it Avas held that having regard to the size of the vessel, the lights Avere fairly visible, and sufficiently complied Avith the regulations Avhich did not require the lights to be placed on any particular part of the ship so long- as they are fairly visible. The Imi'eui.vi, Eov.vi. I'Kivii.E(iKii Damiuan Steam Xaa'ic.atiox Co.MI'ANV V. The (iUKEK AND UllIENTAI. .StEAM XaVIUATIOX CoMi'Axv. The ".'^.MViixA '■ - 67. The rule of naA'igation. prudence and usage prescribe that an ascending A'essel in a current ought to place herself out of the strength of the current, in order to alloAA' full swing to the descending A'essel. as the latter is necessarily hurried along by its force. De.'.x v. Makk. The '■ ('oxstitition '' ^ 68. According to the laAV and rules of England made in pursuance of "The Merchant Shipping Act, 1862 (25th and 26th Vii't., ch. 68, sec. 2o), the A'essel on the port side AVas bound to get out of the Avay of the vessel on the starboard side, unless she had the AAind free. The (iREAT Shii' Co.mi'axv v. Shavles. The " Great Eastern " ' 69. According to the rules of navigation, it is the duty of a steamer meeting a sailing vessel to reverse her engines and slacken her speed in sufficient time, according to the state of the Aveather, so as to avoid a collision. 1 Adminilty, 1804 June 28, U Moore N. S. .366. 2 Consular Court at Constantinople, 1804 June 24, II Moore N. S. 448. 3 Admiralty, 1861 July 15, II Moore 453. 4 Admiralty, 1804 July 13, III .Moore N. S. 31. CoM.ISION «- Hi It w I PAKTIKM IN FAI'l.T. Anhkhsiin v. IfiiKN. TiiK •• FiiViN(} Ftsii " ' 70. A collision had taken plaro, and the injured vessel accordingly ran ashore. Thouii'h assistance Avas repeatedly offered, and tht^ master was informed that she could be got off, ho made no effort to save the vessid, refusing all assis- tance, and the vessel stranded and broke uj) : held, that as the vessel was not in such a state that all attemi)ts to save her were hopeless, the master displayed such a want of nautical skill and neglect of duty that she could only recover for the damage directly occasioned by the collision, and not for that which subsequently occurred after the refusal of the assistance offered. TiiK •Araxks" and the " Hlack Pkinck " ' 71. The 20Gth section of the Merchant Shipping Act enacts, that Avhen on(> ship meets another proceeding in another direction, so that if both were to continue their respective courses they Avould involve the risk of collision, the helms of both ship shall be j>ut to port. A vessel obey- ing the above rule of the statute has a right to trust that the vessel she meets, if a British vessel, Avill obey it too. Hence, Avhen a steamer, a mile and a half off, star})oarded her helm instead of porting, she was prima facie in the Avroug, though at that time if both had starboarded, the risk of collision Avould haA'e been equally aA-^oided. The •• rxiTEi> States" ■' 72. A tug steamer, Avhile being humched in the river, ran stern foremost into the starboard side of another steamer, then passing doAvn the river, and negligently being at that place. NotAvithstanding the negligence of this latter steamer, the tug might, by ordinary i^are, such as giAnug a signal before launchina', have aA'oided the conse- quences of such negligence, and therefore, both being to blame, the tug AA'as condemned to only half of the damage. The •• Ulster' ♦ 73. When two vessels, one goiug doAvn the riA'er, the other crossing it, sighted each other half a mile otF. and the latter one having intended to turn her head doAvn the river, AVas balHed by the llood-tide, but neglected thereupon to run iip her outer jib so as to aid the operation ; it AA'"as held that the 1 Admiraltj', 180.-) Feb. S, III Moore W S. 77. 2 Adminilty, 18(!1 August 3, V Law Times N*. S. 39. 3 Admiiftlty, 18(i5 Feb. 9, XIII Law Times \. S. 33. 4 Admiralty, 1862 July 16, VI Law Times .V. S. 736. COLLISION ;i got I'ARTIKN IN FAM.T. former acted rightly in not altering the course she had pro- perly taken, having a right to assume that the other shi]) Avould have taken all proper means to turn in the right direction. TiiK -JLalvina" ' '74. A steamer going doAvn a river, having disobeyed without ( tmse the direction of the Merchant Shipping Act, by keeping to starboard side of the channel, and the pilot as "Well as those on board being remiss in keeping a look- out, Avas held liable for damage to a barge sunk iu a col- lision. TlIK "A(iIlA" AND •' Kl.IZAltKTII .Ik.NKIN.S " ^ 75. The Jixdicial Committee reversed the judgment of the Admiralty Court in this case on the ground that both vessels Avere to blame, the damages were directed to be equally divided ; each party to bear his own co.sts, both on appeal and in the court below. TlIK •• VkI,AI{(41KZ " ■' 76. A steamer was sighted by a sailing vessel at a suffi.- cient distance to have avoided a collision, the steamer taking no steps until the vessels were very near each other, Avhen she starboarded her helm, and the sailing vessel ported her helm to avoid a collision, which, nevertheless, took jilace. It Avas held that the steamer -was alone to blame, as it was the duty of a steamer to keej) out of the way of the ■sailing vessel, provided she could do it, either by starboard- ing or sorting her helm, and that, on the other hand, it was the duty of the sailing vessel to keep her course, and that she could only be excused I'rom deviating from it by show- ing that it was necessary to do so in order to avoid imme- diate danger. 1 N.UAN V. Ekck. The ''City ok A.vtweup " and the "'Fiueduicii " ' 77. The Court of Admiralty in this case held both ves- sels ^ to blame, and decreed the damages sustained to be equally divided between them. Such decree was reversed on appeal, as the case of the sailing vessel setting forth the alleged negligence on the part of the steamer had not been proved ; and as, moreover, the sailing vessel not having 1 Admiralty, )8G3 April 13, VIII Law Times N. S. 403. 2 Admiralty, 1867 July 17, [V Moore N. S. 4,35. ."? Admiralty, 18G7 July 4, IV Moore N. S. 426. 4 Admiralty, 1868 Feb. 7. V Moore N. S. 33. 5 A sailing vessel and a steamer. 222 COLLISION ! y. :!;t5' n2 It' , tl PAHTIKN l.\ FAl'l/r. appealed i'rom the decree Avhich declared she was in the \\'ro]ig, sui'li decree operated as rex judicata that the allega- tions inude ill her suit Avere not substantiated. Lnui) Wksthi iiv, p. Kl : — ll is umloubtoilly tnio, in cases of collision ln'lwi'oii a sailiiii^ sliip iiml a steaini'i-. lliat, altli(iui:;h tlic >ailiiiy ship may bo loiiiid to liavo lict'ii gailty ofinisconihict, or not to have observed tlio sailing IJogulations, yet the steamer will be held ('ul])able, if it appears that it was in her power to have avoided the colli>ioM. it cannot be too mueb insisted on that it is the duly of a sti'ainer. where tiiere is risk of collision, whatever maj be the eonduct of the sailing vessel, to do everything in her jiower that can be done, consistently with her own safety, in order to avoid eoUision. lint, according to the settled rales for the administraticm of justice, the party against whom jadgment is given iw entitled to know from the com]ilaint t)f bis adversary what is the defanlt or misconduct imputed \o him, that he may iiave an opp(jrtunity of meeting the ease by his defeni'e, and also by his evidi'iiee. And it iw ditlieult to su])posea greater easi' of hardship than that a defendant, after having met and disproved the case made by tiie plaintitf, shoidd yet have Judgment pronounced against him upon some ground of complaint which was neither pleaded by his advi'rsary, nor related in argument during tlu^ discussion of the cause and not even tliselosed in the judgment of the (,'ourt. P. io. — Wiien a steamer is condemned for having omitted t<.» do something which she ought to have done, it seems just to recpiiro clear jiroof of three things: Fir»t, that the thing omitted to be done was clearly within the j)ower of tlie steamer to do; necondlij, that if 'en(>- ra.ll\ ke(^p on the north side. Therel'ore, a vessel ^'oini^* up, lUider a port helm, seidnij the red light ol' another vess(d on her way down, over her starboard si(h\ is not justilied in KUpposiny tliat the vesstd cominif down will pass her on h«r port side, and aetin'j;- on this heliid', ii'u collision occurs, she will he held aloiu; to hlume. 'i'liK ■■ Wahi'ksia " ■' 87. To sustain a i)h'a oi" inevitables accident it must be estal)lished that th(! party charj^tid with tin; damai^is could not possibly prevtmt the collision l>y the exercise oi' ordinary care, caution, and maritime skill. Sill .Iamks C'oLVil.i.K, 1). ITS: — In the case of tlie Bolina ^, Tiv. Ijushiiintdii says : " AVitli regard to inevilaliie awideni, the onus Iw^ (in tlioso who liring a ('oini)laiiit atjjaiiist u vossol, and who seek to III- iiidoiniiKit'd, on tliom is tho niuiti of provin/^ that the hlaine docs attach ii[i()n tins vossol jiroeeediMl af^iaiiist ; the onus of provini;; iiuivilalilf acci(k!iit docs not noct'ssarily attach to that vos.sci ; it is only lu'ccssaiy when you siiow a jtriiiM facie case of neglii^en(;e and want of due scanianshi|i." Again, in tlie case of the tlie Virgil \ the same hiarned judge gives this dehnition of inevitahle accident: " In my appreliousion, an inevitable accident in point of law is this, viz., that which the party charged with the offence ce '•[ not possilily prevent hy the exercise of ordinary care, caution, and maritime skill. If a vessel charged with having occasioned a collision should Ik- .sailing at the rate of eight or nine miles an hour, when she ought to have proceeded only at the speed of three or four, it will lie no valid c.xcuho lor tho master to aver that lie could not prevent the accident at tho moment it occured ; if ho could have used measures of precaution, thut, would have rendered tho accident less probable." 1 Admiialty, 1872 Dec. 5, L. U. IV I'. C. 510. 2 Ailmiiiilly, 1872 Pah. LI, VIK Uoure \. S. 408. 3 3 Nolca of Cases, 2!n. 4 2 \V. IJob, 205. (•uM,l>l()N go 110- Dr. ion, an 1h! piirty oxorcisf chiirgi'il rate of |do(l only for till- moment lou, thut PtltriKN tS I'Al'l.T. lliirvM' li;i\r I" >alir*iy oiir^clx I'M lliiil MHiu.'lliiii;;' \\.i> ilmii', or oiiiiliiil lo lie ilipru", wliifli a |iiisi>ii oxorci.sin;^ ordinary i'a>c, raii- tion, anil niarilinio sUill, in tlic ciiciinistanci's, uilluT wnuld not liavc clono or would nut luivi- Icll iindonr, as llic caur may lir. Smith V. St. I, awkknci; 'rnw-hnAT ( 'dmi'anv ' Hm. Wht'i'o a vt'ssol in tow (lurinti- u tliick log. knowing that i I was (laiiytTous to proiccd, did nol ordor iiit'lui''to hlop and tlio vi'S!-('l ill o cioar that when no dinctioiis arc givon liy tlio vosscl in low, llic rul' in liic faso nf tii'fj; sloamers is, tliat tlio Ui'^ shall direct iho coiii'so. 'I'liu tiij;- is tin- niovinii' [lowcr, IjuI it is lUKlor the control of the master or pilot on I loan I the slii[i in low The rule was clearly laid down hy Ijord Kingsdowu in tho caso of t\n^Ji(h((. Speakiiii;' 1)1' the duties (>r a liii^f sieiimcr, he suys : "u tui;' is to Use pmiier sUill and diligi'iiee, and is jiaiili! lor any dainage hy her wrnni^'l'iil acl, Wlien the conlract lo Idw was made, tiu! Ia\\ iinjilied an eiigagiinenl that each ve,-.sel would |iert'nrin its duty in completing it; that pi'(jper skill and diligeiuH' would he useij on ijoard each ; that neither vessel, by neglect or misconduct, would create unnecessary risk to llie other or incroaHo any risk which migiit he incidental to the service undertaken. IC, in the <'ourstM)r IIr) |)erl(irmanee of the, contract, any iiuivilalih! accident hapj)eni'd to tlie OIK! wilhoul default un the jiarl of tin' other, no cause of action would arise, if, on the other hand, the Vv'i'ongful act of either occasioned damage to the other, such wrongful acl would create a reHpoiisihilily in the party cominiuing it, if the .sutl'erei' had not hy any miscondiicL or unsUilfulness on his part contrihut(^d to the uccidont. TlIK " i'llANKLAMl " AM) 'L'llK " liKSTKIM, " ' 8!». Every .stoaiushii), when approaching auothor ship so as to iiivolvt! risk of collision, shall slackmi hor si)ood, or, if uocossary, stop and rovorso ; and overy stoainshii) shall, in a log, go at a modorato spoo^'. TlIK '■ Al.MO " AND TllK ■' A.MKtJA " •' 90. A vessel meeting another which is bound to keep out of her way, hut which cannot do it on account of her disabled condition, and ignoring the position of this latter, continues her course. She is not liable lor the collision which ensues, as it is a case of inevitable aceideut. 1 Quebec, 1873 Maicli ^4, L. li. V. l\ C. 309. ■2 .Ulmiialty, 1873 Dec. 0, XXVII Lnw TiiiK a X. 8. 033. 3 A(huiially. 1873 May 20, I, aw Times \. S. 11.'^. (!OLLISION i' llif if The " C. M. Palmer " and The " Larnax " ' 91. A vessel is bound to keep a light constantly visible ; the taking down oi' the lamp just for the time necessary to trim it is no excuse, if a collision takes place at that moment and on account of the absence of light. The " lioNA " and The " Ava " ' 92. A ship is to blame if sh'^ maintains a speed of nine and a half to ten knots an hour, when she is aware that her own lights and those of any approaching vessel are obscured by the smoke from her own funnel. The " N«.u " » 93. A vessel is not to be blamed to the extent of being iield liable, when at the last moment before the collision she has executed a wrong manoeuvre. 94. Rule 14th of the admiralty provides that " if tv,ro " vessels under steam are crossing so as to involve risk of " collision, the ship which has the other on her own star- " board side shall keep out of the way of the other." The Judicial Committee held that according to the true construc- tion of this rule, the vessel in order to keep out of the way is not necessai'ily obliged to port in all cases ; it may be properly done, according to circumstances, by stopping, by going ahead, by starboarding, by porting or by going astern. The " Kjobenhaow " * 95. In an action of damages for collision, the plea of the defendant that she could not comply with the sailing regulations and ordinary rules of the sea, because she was disabled in an anterior collision, is bad if she was in fault in the prior collision. Union Ste.\mshii> Co. v. Owners of the " Aracon" " American " and " Syria " * 96. A steamship found at a foreign port a screw steamer totally disabled in her machinery, and belonging to the same owner. The taptain of the steamship in order to protect his employers' interest and to earn at the same time salvage from the owners of the screw steamer, took this latter in 1 Admiralty, 1873 May 20, XXIX Law Times N. S. 120. 2 v. A. Hong Kong, 1873 Dec. 6, XXIX Law Times N. S. 781. 3 V. A. Gibniltftr, 1874 March 20, XXX Law Times N. S. .'577. 4 Admiralty, 1874 Feb. 17, XXX Law Times .V. S. 13G. 5 Admiralty, 1874 July 24, L. R. VI, P. C. 127. COLLISIUN PAKTIEN I.V FiVI^T. tow, but whilst doing so came into collision Avith a sailing ship close hauled on the starboard tack, and sank her. The steamship, under the circumstances proved, Avas found to l)lame for the collision, but as the governing as Avell as the motive power were with the steamship, the screw steamer was not held liable for any damage, both being considered as one vessel. SiK JtoBEUT 1'. Collier, jt. 182: — Tlic question remains whethtT the Syria, tlKJUgh free from liiamo in fact, must ne\ertlieless lie held to bitinie by intendment of law. The decision of the learned judge upon this point appears to ho based upon the ])rineiple shortly slated liy Lonl Kingsdoini, in the passage which has been before cited as that on which the Chiadon ', was decided, viz., that the motive i)inver was in the tug, the governing ]iower in the shij) towed. The Judge of the Admiralty court aji])lying this jjrinciple to the present case, held that the American and the Syria constituted one vessel in intendment of law. This is no doubt an accurate repres- entation of the relations usually subsisting in this country between the tug and the tow. The tug is in the service of the tow, the tow is answcralile for the negligence of her servant, and is for some pur- ]ioses identified Avith her. Some American cases have been cited which, though ditt'erently decided, illustrate this principle. It appears that, in the large American rivers and lakes it is usual for a tug, which is spoken of as a public vessel, to take a number of small vessels in tow ; some alongside of her, some astern. She assigns to each of these vessels its place, and they are under her direction. Under these circumstances, the American courts have lield that a vessel towed is noi liable for the negligence of the tug, because the " governing power," is in the tug, not in her. The master of the American appears to have undertaken to tow the Syria under cir- cumstances quite exceptional. Their Lordships collect that he deter- mined to take home the Syria, partly because he thought it his and reprehensible. The " XiiUMA " ■' 90. It is against the rule for a sailing A'essel meeting a steamer to port her helm on approaching the steamer : she is 1)ound to keep her course. The " IJELf.ERdPnnx " ' 100. Where there is in a ship or elscAvhere, a constant instrument of danger, those Avho have the control and the possession of it are bound to take all reasonable precautions that it shall not caxise damage vo others. 101. This obligation to giA'e a notice as a Avarning of danifer miist arise from the existence of some reasonable probability of danger to the ])arty to AA'hom that notice is to be g•i^'en, and an oi)portunity of gi\'ing ii. so as to enable such party to avoid the danger. 102. This rule does not apply Avhere there is no reasonable ground for antici]iatin£i' any dauffer. Vanghan \. The Tnff Vale Raihim/ Co. 29 L. .f. 24t, Ex. ^ ' The " Fannv M. Cara'iij, " * 103. Where in a ship the screAV projected considerably more than one foot from the position of the light in a direc- tion parallel to the keel, and her licrht Avas not visible tAVo points over her port boAV, it Avas held that, although this Avas an infringement of the regulations A\athin the meaning of the Merchant Shipping Act (article 3 sailing rules), and although under the 17th section of said Act, (30 and 37 Vict., 1 AdniirnUy, 1875 June IT, XXXIII Law Times N. S. 235. ■1 Admiralty, 18T6 March 30, XXXV Law Times \. S. 419. i Admiralty, 187") June 19, XXXIII Law Times N. S. 413. 4 Admiralty, 1875 June 9, XXXII Law Times N. S. 647. ■HP COLLISION 229 •riven, PARTIKN IK FAVfiT. vh. 85, 1873) it is uo more iueumbeut on a plaintilt to prove that an infringement of a regulation by the ship in lact con- tributed to the collision, yet to make the ship liable, in a case of collision, it miist be established that the infringement charged is one having some possible connection Avith the collision. Sir James W. Coi-ville. p. 04S : — Thosie being the facts of the (.•iiso, it follows that tlie Faniii/ M. CarviU, which tailed to Iceep out of the way of the Peru, must be jjroiiouncecl solely to bhime for the collision, "unless by force of the ] 7th section of the Merchant Ship- ping Act 1873 (30 & 37 Vict. c. 85), as construed in the recent case of the ILbernid, the Peru is to be deemed to be also in fault ; although the particular infringement of the sailing rules imputed to herneiti er did, nor could by any jiossibility have contributed to the accident. The words of the statute are: '• If, in any case of collision, it is proved to the court before which the case is tried, that any of the regulations for preventing collisions contained in, or made under the Merchant Shipping Acts 1854 t by which such regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the court that the circumstances of the case matle a departure from the regulations necessary.'' The alleged infringcmeiU is of that part of Article 3 of the sailing liulcs which prescribes that '• iuo green and red side lights shall be titted with inboard screens, projecting at least three feet forward from the light, so as to prevent these lights from being seen across the liow." The screw of the Peru is shown to have been nearly a foot (about 11 inches) short of the prescribed length. It nust be assumed that those under whose advice the rule was framed considered that a length of 3ft. was necessary in order to ])revent the light from being seen, under any circumstances whatever, across ihe bow. And there is evidence in the cause, independent of that of the diseredited witnesses, to show that, under some circumstances, the green light might be perceptible across the bow. Their Lordshijjs, theref ire, notwithstanding their conviction that the green light could not have lieen seen more than a very few degrees (if at all) across the bow of the Peru, will assume that there was an infringement of the regulation within the meaning of the statute. Audit has cer- tainly not been shown that the circumstances of the ease made a dejiarture from the regulation necessary. In construing the chaise in question, it is to be oliserved that the Act of 1873 did' not repeal, nor was it a substitute for. the ^terchant Shipjiing Acts of 185-i and 1862. On the contraiy, its 2nd section dciares that it is to be con- strued as one with them. Now. the 2!t8th seciion of the Act of 1854, and the 2:tth section of the Act of 18(12, provides each that in cer- laincasos of infringement (jf the sailing regulati(ms those guilty of the infringement shall incur certain consequences. But each con- tains the (pialitication that the collision shall appear .;; ihe court to have been occasioned by the non-observance of the regulation infringed. When, therefore, in the I7th section of the Act of 187;{, the legislature omitted this rpialitication, it must be presumed to f-' M '.. iii 2;jo COJ.LISIUX PARTIKN I.\ FAIII-T. liiive done so designedly, and, at all events to have intended that t shotdd no longer i)c incunilient on the opposite party to prove that the non-observanee of the regulations in fact contributed to the col- lision. Nor does it appear to their Lordships that the 17th section of the Act of lH1'.i can be taken merely to shift the burthen of proof by raising a ])resumption of culpability, to be rebutted by proof that the non-observance of the rule did not in fact contribute to the col- lision, because the preceding (the l(Jth) section clearly shows that where the Tvcgislature intended only to raise a presumption ca])able of being I'cljut led by such proof it used aj)t words to express that intention. Their Lordships therefore conceive that, whatever be the true construction of the enactment in (juestion that which would take the case out of its operation by mere ) I'oof that the infringement of the regulation did not, in ]ioint of fact, contribute to the collision, is inadnussible. They conceive that the Legislature intendeil at least to obviate the necessity for the detei'mination of tliis ([uestionof fact (often a very nice one) u|K)n c(mflicting evidence. There remain, iiowevei', two other ])ossilile constructions. The first is that, on proof of an infringement (jf any of the regulations for preventing collisions, there arises, subject only to the (|ualitication contained in the final clause of the section, an absolute presumption of culpability against the vessel guilty of such infringement, to which the court is bound to give effect, whatever the nature of llie infringement ma}- be. The other is that the infringement must be one having some jxjssible coniH'Ction with the collision ; or, in other words, that the presumption of cul])abilily may be met by proof that the infringement could not by any jxissibilily Iiave contributed to the collision. The former of these constructions, though possibly the more consistent with the literal meaning of the words of the section, seems to their Lord- ships to lie the less reasonable of the two. it not only leads to the extravagant conseijuences pointed out by the learned judge of the Admiralty Court ; it implies an intention which, without the plainest language, can hardly be imputed to the Legislature. For it is one thing to say that when the circumstances show that the infringe- ment of the regulations might have contributed to the collision, the court shall conclusively infer that it did so. It is another, and very different thing to say, that the court shall draAV the same inference, when the circumstances show that the infringement, from its nature, could not possibly have contributed to the collision. In the latter case the Legislature would entirely alter the nature of the shipowner's liability. As the law stood, he was civilly liable in (himages for the consequences of his act or omission. The new law, so far as it enacts that the conse(iuence8 which might have flowed from that act or omission, shall bo presumed to have flowed from it, does not affect the nature of that civil liability. Hut on the supposed construction it would virtually substitute for a civil liability which the shipowner could not have incurred, a penaltj- for the infringement of the regu- lations irresi)ective of the nature or possible consequences of that iufiingement — a penalty, moreover, of imcertain ai)plication, since it is de])endent on a collision, and varying in severity with the in- jury done by the collision. It would, in effect, make the vessel guilty COLLISION 231 PARTI EN I.V 1MVI.T. of tho infringement, a sort of outlaw of the seas, by depriving her of the right to recover, under any circumstances, more tiian half the damages to which, by the general law maritime, she might become entitled. Again, it can hardly be denied, though the words perhajjs admit of such a contention, that the infringement proved must bo one existing at the time of the collision. And if this bo so, it seems L' t reasonable to infer that it must also be one tiiat has some pos- sible connection with the accident. Their Lordships are of opinion that the second construction, which is not absolutely inconsistent with the phraseology of tlie enactment, and is by far tlio more reasonable of the tw.», ought to be adopted. It gives effect to tho statute by excluding proof that an infringement, which might have contributed to a collision, did not in fact do so; and by throwing on the party guilty of the infringement the burden of showing that il could not possibly ha', e done so. TlIK " IIlBEKNIA " ' 104. The iuiriugemeut of any of the admiralty regiilatious, whether it has beeu the cause of the colli.sioii or not, is suffi- cient to have the guilty vessel deemed iu fault, iiuless it is proved that the circumstances made a departure from the regulation necessary. TriE " Henky Morton " ' 105. The proper course for an outward bound steamer leaving the Tyne dock is to straighten her course as soon as possible, so as to proceed down on the southern side of midchanuel. The " Lake St-Clair " v. The '•Underwriter" ' 106. According to the general rule of navigation, it is the duty of the i)ort tacked ship to get out of the Avay of the starboard tacked ship, but, however, when the former shij) is helpless and in an unmanageable condition, it is the duty of the latter to execute the necessary manoeuvres to avoid the collision. Wilson v. Canada Suipi'ing Co. * 107. When a port tacked vessel has throAVU herself into stays and become helpless, she ought nevertheless to execute any practicable mauieuvre in order to get out of the way of a starboard tacked vessel. 108. A starboard tacked vessel Avhen apprised of the helpless condition of a vessel which by the ordinary rule of 1 Ailminilty, 1875 Dec. 5, XXXI Law Times N. S. 805. 2 Admiralty, 1875 Dec. 12, XXXI Law Times N. S. 859. 3 Admiralty, 1877 Feb. 13, XXXVI Law Times N. S. 155. 4 Admiralty, 1877 Feb. 14, L. R. II Appeal Cases 389. ?T I 2 '{2 COLLISION K-i ill .liii I I I IMKTIKN IX FAl'LT. navigation oxight to got out of her way, is bonud to execute any practicable manoeuvre which would tend to avoid a collision. Loth vessels were held to blame for the collision. TllK •• W'iM.IA.M FUEDEUICK ' V. TllE " ByKOOED ClIRISTENSEN " ' 109. Each vessel seems, np to the time when the collision became inevitable, to have kept its course, and to have acted as if it Avme the duty of the other vessel to keep out of the way. The question as to which rf the vessels was right was de*'ided by the real direction of the Avind. Sir James W. Colville, p. ()72 ; — -They conceive that to leave to niiisters of vessels a discreliou as to obeying or departing from the sailing rules is dangerous to tlie public ; and that to require them to exercise such discretion, exeejit in a very clear ease of necessity, is hard upon the masters themselves, inasmuch as the slightest de- jmrture from these rules is almost invariably relied ujion as consti- tuting a case i>{ at least contributory negligence. China .Merchants Steam Xavication Co. v. Hionoi.d ' 110. Where a vessel did not steer her course to avoid col- lision, and the other exhibited no proper lights, both Avere found in fault, and the damage Avas diA'ided. Emerv V. Ciciiero. Tue •' Arki.aw '■ ' 111. Where the lights of the complaining A^esselwere not properly burning, and AA^ere not A'isible on board the other A'essel, in the absence of proof that this latter Avas also to blame, the suit must be dismissed. Sir Ja.mes ILvnnen, p. i:!!) : — Jiut the learned judge below says that this question of the lights is immaterial Avhen it apjjear.'i that this absence did not '^ause the collision. On this part of the case their Lordship.s are unable to concur with the judgment of the learnetl judge below. The principle in cases of this kind, Avhere there has been a departure from an imjiortant rule of navigation, is this, that if the absenc; of due observance of the rule can liy any possibility have contributed to the accident, then the party in defiiult cannot be excused. Scicluma v. Stea'Enson. The "Rhondda'" * 112. "When the captain or pilot discovers that there is a danger of collision, his duty is to stop and rcA'crse the engine. And if the ship does not obey her helm, oAviug to the action of a current, he is not to blame. 1 V. A. Gilbrnlt.ir, 1870 June 19, L. R. IV Appeal Cases 1669. 2 Admiralty, 1882 May 10, L. R. VII Appeal Cases 512. 3 Admiralty, 1883 Nov. 21, L. R. IX Appeal Cases 136. 4 V. A. M.aUa, 1883 June 5, L. R. A'lII Appeal Cases 549 .?*■ Jf^^^RBp, . ^ (•OLLISIOX 233 PARTIES IX FAULT. llissi.vx 8S. •' YiiuvHi " V. EiUTisii SS. •• Si-kaioian" ' 113. All vessels goin^- dowu the Daiuil)e must ki'«'p to the right l)ank, and in coining up, to the left bank: it is a neglect ot' duty and negligence to (.'ome across to the other side. Danube coninmsioH rules, ch. II, rule S4. The ••Gl-AMolUiANSIIlKK " '^ 114. There is no presunijitiou of culpability, in a case of collision, on the part of ships whose light Av^as lixed in the rigging, as it is the common practice in American ships, even if the foresail or some portion oi' it could interiere so as to prevent the lamp shelving a uniform and unbroken light over an arc of the horizon of ten points of the I'ompass, it being in evidence that tlie lamp gave a bright light which would be visible at a distance of three miles. The " City ok PEicixd " v. Tiiio i.'oMi'Aii.viE des.Uessacieries MAUITI.MES ■' 115. AVhere a vessel under steam runs do^vn a ship at her moorings in broad daylight, that fact is by itself /iriina facie evidence of fault, although siich steamer is well equipped, and both officers and men are shewn to have been at their posts on the outlook. 110. This collision under such circumstances was attri- biitable to the effect of an exceptional current, known to be a possible though improbable contingency, but it was sheAvn that the port anchor of the steamer was not in readiness, and that the delay arose in dropping the starboard anchor ; it was held that the steamer had neglected ordinary pre- i-autions and could not be absolved from blame. OCKAN .'^TKAMSIin* Cd.MPANV V. APCAIl v*C Co. * 117. Where in a collision case it appeared that one vessel had been navigated Avith reckless negligence, and the other had committed a comparatively small error in not slai-kening speed in good time, bixt in not doing so had infrinaed a regulati'^n for preventing collisions at sea, the latter vessel could not be absoh'ed from th(> consequences prescribed by statiite and was held liable. See Evidence : appreciation «/, and : inevitable accident, Mer- chant SHIPPING : cnnstfuction. 1 New South Wales, 1885 Feb. 12. L. R. X Appeal Cases 2V9. 2 China and Japan, 1888 Maich 22. L. R. XIII Appeal Cases 454. 3 Admiralty, 1888 Dec. 1, L. R. XIV Appeal Cases 40. 4 Admiralty, 1889 -Sov. 30, h. R. XV Appeal Cases 37. m ->M COMMISSIOX •♦ 'if I. , 'H '. (f) I"' f^ Ml COMMISSION ON AnVAWCEN. I'dM.orK KT .M,. V, HllADBURY ' 118. The respoudout was a morrhaut Avho was iu the habit of advaiu'ing supplies of goods, mouey, promissory notes or other comiuercial iustrumeuts to coiiutry customers. Accounts, returns and settlements "were made from time to time at their convenience Avith produce from the upper country, transfered by vessels and barges. For the advances of cash and negotiable st^curities, the respondent charged a commission of Hve per cent and interest from the time the different items of their accounts became due, under special agreement to that effect. The Privy Council held that a commission of five percent on all advances besides interests, under the circumstances, was not an usurious one or a cover for an usurious transaction, but a customary alloAvauce for the trouble and incon- venience of transai'ting the business. ■ COMMUNITY See DoMK^L, MAUUIAdK. IXTEKXATIUNAL LAW. COLLOCATION See Insoi.A'KNcy. COMPANY, (Joint stock) See Corporation. COMPENSATION See Alimentary allowance : cannot be compensated, Insol- vency : eodem verho, SURETYSHIP : eodem verbo. WHf:.\ IT TAKKN PI,A<'t:. EyLAxit V. I)elis[,e ' 119. Compensation between two debts takes jilai-e by the sole operation of law between debts only which are at the same time equally due and exigible, and having each for object a sum of money or a certain quantity of indeter- minate things of the same kind and quality. If one of the two claims cannot be collected by the creditor Avithoiit a certain formality, so long as it has not being fulfilled, the debtor cannot oppose the claim in compensation to a third party exercising by law the right of the creditor who is his own debtor. 1 Lower Cauaila, 18r)4 Feb 4, VIII Moore 227. 2 The general laws of usury were abolished by 22 Vict. ch. 85, sect. 1859. 3 Lower Canada, 18i;o July G, VI Moore N. S. 225. COMPKXSATIOX m Wllt:\' IT TAKKM I'l.VrK. 120. This was an aotiou taken by a creditor of an insolvent Raihvay (;ompany against one of its shareholders. The Canadian law on llailways, to wit, chapter (!0 of the Con- solidated Statutes provides that " each shareholder shall be individually liable to the creditors of the company to an amount equal to the amount impaid on the stock held by him, for the debts and liabilities thereof, and until the whole amount of his stock shall have been paid up, but shall not be liabl(! to an action therefor before an execution ag-aiust the lompany shall have been returned unsatisfied in whole or in part, and the amount due on such execution shall be the amount recoverable with costs against such share- holder." The ac;tion claimed the balance due by the de- ftMidant on his shares. The defendant pleaded compensa- tion under articles 1187 and 1188 of Civil Code, the com- pany being indebted to him for salary as President to an amount exceeding the sum due on the unpaid stock. The Court of Queen's Bench maintained the plea of com- pensation, but this decision was reversed by the Judicial Committee on the ground that, compensation did not takt^ place (/e piano b(>tweeu the debt due by the shareholder and the claim of this latter as no calls in respect of the unpaid stock held by defendant had been madt; as provided by the Railway Act, and so compensation had not taken place betAveen the said parties, and the company had no claim against the defendant. TiiK Lord Justice Giffarr, p. 23-t: — Now, the action in whicli that judgment was given was an action brought b^-a creditor of the oompaii}- against a sharehokler as a (k>t'endant, and in that action it was proved that there had been a return by the sheritt'ot'/ulii|(s arc nlOjiininn liic ci'cditor is in a iiosition dilTiTcnt from tlmt of the <'i)ni|ian\-, and that tiio ('roI\0 AXn NTKIKI.XG ATTOUXEY OFf THK KOM. Foil coNTE.ni'T. See Attorney : iislem verbis. PARTIES IX c'oxTEMPT. Scs PRACTICE : Hsdevi verbis. POWER OF EEiaSEATIJREN TO PFMSII FOR. See LEGISLATURE : iisdevi verbis. CONTRACT RREACH OF See Damages : iisdem verbis. t'oxFisiox BY MARRiAOE. Sce ANNUITY : Usdem verbis. COHMERt'IAI. CONTRACT. ilcIVAY V. RirnEKFORD ^ 12-2. A contract between a contractor and a government coinmissioner, to supplj- stone for making a canal, is a com- 1 Jiimaica, 1830 June 17, I Moore 59. 2 Lower Canada, 1848 Dec. 12, VI Moore 413. m m CoNTIfACT ^■ . :; I menial matter, undeiiu be proved ateoidinn' to I'^iiiflisli law }(y luinil evidence, [ioim ( 'a.mimiki.l. 1). 1-7 : - 1^ '>!■ if* ii'>i lliisaca>t' (■niici'i'iiiii;^ a eoiaini'n'ial nialtiT ? It sci'iiis tn us that tlic liCi^islatiiro intondod, that all mailers llii-ri-, wliieli coiu'iTiied iUv eusloiiiH nl' IIhi ('ana- (lians. Iliouicli lliey aiT iii>\v salijct'l to tho riilo of l'aiu;laii(l, should remain uiilnuclu'd ; and willi I'l'spccl lo ('onlracls In lie cMlci't'd into liv I'lhiclislinicM who wiTi' sell ii'd thcri^, or hulwecn Ihcni and nalivos, or l)C'l\V(Tii nativi'H amon;^sl llirniHclves, all su(di contracts should bo vnlorcL-d according lo tla; rules and laws id' J'JiK/laiut. Now, tliirt in u eohtnict for tlio maUin;; of a canal, whcivliy a laru,*' capital is to ho laid oiil, and a considcrahic risk is lo i'c run, and wc ihink thai il is a mailer within Ihc nu'aning of (his section c()nceriiiMi^ cdmnierct', and that heinij; si). \w Ihink, hy this enacl- menl, the conlraci is to he jirovcd h}' Iho rulcsof evidence laid down hy the Knt,'hsh law, AVo cannot for a moment listen lo the distinction whi<'h was jittemplcd at the liar, hclwcen ju'oof of a conlraci, and the jiroof of the performance of a eonli'acl. it would he vi'ry strange if such a dislinclion had hcen made hy the Jjegislalurc of Jjowcr ("anada, hut it seems lo us, it is not made, heeaust' it sjH'aks of all fads con- Oi rning commercial mat lens, and the facts hy which a contract is ct)nslituted, arc facts cont;crning <'ommercial matters, as much as the facts resjieeting the jierformance of thi' coMli'act. 25 (Jet. IJI t'h. 2, uLYf. 10 ; r. S. L. C. ch. 82. aect. 17; C. 0. Ji. (J., art. l-'dtl. <'4»iNTRir("rio\ nv Cai.n v. Tkahk ' 123. Construetiou oi'the word " heir " in a dtiod. Lord Bk(»U(iiiam, p. 258 : — It is imjiossihlc to deny that the word heir in a deed, may ho cilhcr a word of limitation, or of jiufhasc; it is a tlexihlt! word, and evvn admitting thai it is more [)r'ement,s, by which a party binds him.s('ir to do certain tu'ts, some ol" which art! legal, and some illegal at common law, the per- formance oi' those which are legal may be enforced, though the periormauce of those which are illegal cannot. TiiK Bank ok Hknoai. v. Faoan ' 125. The Avords : " sell, endorse and assign" used con- junctively in a power of attorney may be used in the dis- 1 Isle of Man, 1843 June 19, IV .Mooie 249. 2 N(!w South Wiile^. 1847 Dec. 11, VI .Muore 1.V2. 3 IJcngal, 1849 July 7, VII Moore TJ. C0NT1{A(;T i';{!> I'OKNTHVi'Tiow nv iuiiftivc ; iht'y mt'iiii ii powor to st'U, ii power to "iidorsi!, a J)OWlM' to iissijj;'!!. Tht^ lulvtTNO COllstlUctioil WOllUl It'ild to this, that thcsi' woidn, iint only tyive no jjower to cndorst', without st'Uiiii^', l)ut also, that thuy yi\'<' no jKnvt'r to sell ■without (Midonsing, and then the at^cnt would he at^tiny- undt^r a powfr whereby he would \u'. ejitirely crippled. kSeo also The Bank of Uew^al v. Mudttod, VII Moore ;];V Tl KNKU V. Mauii,av ' 126. lu the iHlaud ol' Jamaica, cattle and .stock upon a l)lantation or farm are personal t^stattv 127. A mortgage given on real estate " with all and every the lands thereunto respectively ])elonging, and their res- pective appurteiuuuH's" does not include the cattle and stock thereon. Chotavloi.i, v. Manick CnnNi) a.nd Kaiskkkciii nh ' 128. Two parties made a bet in writing as to tht* avtaage price to be obtaintid ibr opium " at the lirst /elainii or public sale of the PatiM, of the ;jOth of November." The sale on that day was prevented by a combination of opium specu- lators interested in similar contracts. The sale was agaiji advertised, and took place on the (Ith of December following. Held that the date mentioned in the contracts, the " 30th '>[' November'' was only a description of the period, when I he lirst publit; sale of opium usually took plat;e and formed no part of the risk contemplated by the wagers, the jiarties not having made a specific day essential to their coutrai^t. Dl.MKCII V. Coltl.KTT •' 129. It was stipulated in a charter party that th(^ ship should sail "with all convenient speed," l)utthe parties had not ex. t'ssly stated that unless thti ship sailed on a specified day, the charter party was to be null. The charterer resided at the place where the ship Avas lying at anchor, and made no objection at the time to the daily postponement of the departure of the ship and, moreover, no evidence of any other '')ss than that occasioned by the falling of freights, was made. The Judicial Committee held that, under the circumstances, the position of the parties was not altered by such postponement, and an action, therefore, was maintain- able against the charterer upon the charter party. 1 Jamaica, 18,').l July ''., IX Moore 264. 2 Calcutta, 185G Feb. 2, X Moore 124. 3 Malta, 1858 June 22, XII Moore 200, ill II »• ;> :>n f 240 COXTILVCT coxsTRit'Tiox or ISO. Hold, also, that it is iini)oi'tant not to give to iner- cautile instruments, such as a charter-party, an unnecessarily strict construction ; biit such a construction as, Avith re- ference to tht' context, and the object ol' the contract, Avould eft'eetuate the obvious and expressed intention of the parties. The IiKiiiT Hon Sir Juhn T. (-mleridcjk, p. 22(i: —Under nuch eir(•llInstilML■o^<, it was coiUendtMl lliat had thiw boon ai: English con- tract, it was clear that the mere lailing to sail within-Ji reasonable time, or with eo':vcinent speed, was^ no answer to an acli(jn on the contract. Clip^ham v. Virtue (52. B. Eep. 2Go) ; and Tarrabovhia V. liirhie (1 Ilurlst and Xor. 1S:J). with several other cases, Avere cited in support of this doctrine, and it was further contended, that this rule of our mercantile huv was founded so manifestly on good sense and equity, etfectuating so generally the probable intention of the parties, that, in the absence of any express authority to the contniry, it was to be presumed to be the law governing the mer- cantile contracts of J/a/^«. Limiting ourselves to the facts of this case, and to the extent to which it is necessary to go for the present Judgment, we agree to both parts of this argument; the parties have not expressly stated for themselves in the charter-party that, unless the vessel sailed by a specitied day, the charter-party shou'd be at an end ; and courts f the vessel, and of the time when it Avas ultimately in a condition to sail; ifso, andifhe had ijiti nded to insist that tlie charter-party was no longer binding, nothing would have been more easj- or just than to give notice to the ajipellant that he so regarded it. The object of the charter-party is, indeeil. frustrated, but not liy any delay in the ship's sailing, such as the charterer had a right to complain of: that which defeated his s])eculation was the fall in the rate of freight ; it was, therefore, for him to show that had the shijiowner perl'ormed his contract in time, the .ship would have arrived bctiire the fall hail occurred; this he has failed to do. P. 228 : — A contract that a thing shall be done on a day named is in itself certain and defined; it excludes all consideration of the influence of future circumstances; but a contract that it sliall be done with all convenient speed necessarily admits a consideration of them all ; and then what, under the circumstances, is ''convenient speed " may jilausibly enough ije judged ditferently by different minds. It is, therefore, not unreasonable to hold, that in the former Case the stipulation was intended to be a warranty, and yet to con- sider a failure in the latter as only entitling the p:irty to across action, or allowance from the damages, whenever the consequence of the failure has only been pariialiy injurious, and las left the main object of the contract still attainable. 131. The principles of assessment of damages or penalty for non-peribrmance of a contract were considered by the Judicial CoHi'nittee as follows : COXTiJACT 241 CO.\MTRlI€TIOX OF The Right Hon. Sir John T. Coleridoe : — The law of this country on the question of penult}-, or liquidated damages, may now be considered, after a great number of decisions, not perhaps all of them strictly ivconcilable with each other, to be. however, at length satisfactorily settled, and the hinge on which the decision in every ])articular case turns, is the intention of the parties, to lie collected from the language thej' have used. The mere use of the term " pcnalt J- " or the term " liquidated damages." does not de- termine that intention, but, like any other question of construction, it is to be tletermined by the nature of the provisions and the language of the whole instrument. One circumstance, however, is of great importance towards the arriving at a conclusion ; if the instrument contains many stipulations of varying importance, or relating to objects of small value calculable in money, there is the strongest groimd for sujiposing that a stipulation, applying generally to a breach of ait, or any of them, was intended to be a penaltj' and not in the way of liquidated damages. MOOKEMEE V. MaSSEYK ' 132. A coutract was made by a third party eugaging' himself to pay the debt of a debtor to his creditors, in ii specified time and by instalments, piovidjd the creditor granted a discount of about a third of the debt, and the agreement Avas entered in writing with the following con- dition : " If I fail to pay the whole of the 25.000 rupees, '' then the remission is not to hold good, and the remitted " money will be jtistly due by me." It was held, that this eonvention was different from that of a creditor engaging himself to remit to his debtor a portion of his demand, in consideration of punctually paying instalments, in which case the punctuality of payment is the only consideration for the indulgence ; in such a ease as the present, it is rather a certain thian a punctual payment that the creditor had in view and, therefore, the penalty was not incurred by a default iu paying an instalment. TuDiTRY V. Sanchez Dk Pina '' 183. The term " owner," is to be understood as not in- timating necessarily that the person is proprietor in fee simple of the whole, but that he is proprietor either iu fee simple or for some term, or terms of years, or as to part iu one mode, and as to the rest iu the other. The Be.\con Life and Kihk Assiuance Company v. tJiuK ' 134. The appellants insured a ship belonsring to the res- pondent, and used for the contract a form generally em- 1 Calcutta, 1860 July 18, Law Times N. S. '249. 2 Gibraltar, 1802 June 19, XV Moore 4;!4. 3 liowcr Canada, 18ti2 Dec. 3, 1 Moore N. S. 73. 16 242 CONTRACT . ( !:/ K: 111 fOXSTKlCTION <»F ployed to insure houses, Avhich contained the following rondition : " That if inore than 26 lbs. of gun-powder " should be on the premises at the time any loss happened, " such loss should not be made good." The ship having been burned an action was taken by the insured for the amount of the policy. The Judicial Committee held that the word -'• premises" beinff in the conditions of the policy, it must be understood to mean the ship, that is, the subject and thing previously expressed and referred to, and that according to the policy, the ship should not have carried more than 20 lbs. of gun- powder. 135. In construing instruments the real contract must be gathered from the contract itseif, and the words and sen- tences used must be taken in theii" natural and ordinary sense; the intention of the parties is not to be searched for in external evidence or considerations. 136. In order to construe a term in a written instrument where it is used in a i^eculiar sense, different from its ordinary meaning, evidence is admissible to jirove the peculiar sense in which the parties understood the word, })ut it is not admissible to contradict or vary what is plain. Lord Chelmsford, p. 07: — Xow the word "premises " although in popuiiir language it is not applied to buildings, in legal language means the subject or thing, previously expressed, aiid the rpiestion here is, in wliat sense this word is used, which must be gatiiered from the contract itself, and not from any external evidence as ior^Z Denman says, in the case oi' Rickmnn v. Cctrstairs (5Bar. & Ad. G63), " The (piestion in this and other cases of construction of written instruments is, not what was the intention of the parlies, but what is the meaning of tiie words they have used." Now the whole difficult}' in this case — if really there is any diffi- culty — has arisen from the company taking a form of jjolicy for insurance upon houses and bulKlings, and not striking out those conditions endorsed on the ])()!icy which were inapphcable to the subject matter insured, but leaving the question of the a])plication of the conditions to the proviso in the body of the policy to this effect — " that this policy and the insurance hereby made shall bo '' subject to the several conditions and regulations herein and hereon '' expressed, so far as the same are or shall be applicable." During the ccmtinuance of the policy, the steamer was entirely destroyed by tire, and the ]iri'sent action was brought against the company to recover the amoiuit of the insurance. The dechiration, it has been observed, negatives the tire having been brought within any of the exceptions which aro contained in jiart of the seventh conditi'^n, thereby adnutting that part, at least, of the condition enters into insurance. m CONTEACT 243 the COXNTRUC'TIOX OF Tlio company plcadeil, amongst other plca.s, that the ]ioHcy of insurance! in the declaration mentioned was made by tlie defendants under and subject to certain conditions and reguhitions therein and thereon ex^iressed ; and, among other tilings, that if more than 20 lbs. weight of gnnpowiler shoukl be on the premises at the time when any loss happened, such loss would not be made good. And the plea averred, that at the time the T(/tfo was destroyed by tiro there was on board the vessel u larger quantity of gunpowder than 20 lbs. weight. The i)artit's being at issue by the provisions of the provincial stiitiite, liie questions to be submitted to the jury were determined by the durt; and one of those questions — the only one necess;iry to be considered — is tlie third, viz., at the time the said steamer Tinto was so consumed by tire, was there any quantity of gunpowder on board the said steamer, and, if so, wliat weight ov quantity? Ulion the trial, that question, with the others was submitted to the jury, and they returned for answer, '" Yes, we tind that a ])ackage '• containing about 1000 lbs. of gunpowder was on board as freight, " and which the owners of said steamer were not precluded by their " policy fi'om canying." It is ([uite clear — it is admitted, indeed, by all the judges, and there can be no question about it — that the latter wonls of this tinding, '• and which the ov/ners of tlie steamer, were not precluded by their jiolicy from carrying," were be^'ond the province of the jury. It was taking upon them to deckle upon the construction of the contract. I sujipose that the course in the province in these cases, where the jury arerecjuired by the ])roviiicial statute to tuid a special verilict — that is, not a 8[)ecial venlict as tlie term is under- stood ill this country, Ijut to answer distinctly to the dirt'erent (pies- tions which are settled by the court to be proper to be submitted to them, is, that an application is tifterwards made to the court to apply the verdict. Accordingly, such an application was made by tlie defendants in the iiction ; and, in addition, there was a motion to strike out the words to which I have reterred in the tinding of the jury. There was, perhaps, no necessity for i his motion, as the latter part of the rinding of the jury might have been treated as mere siir])lusage; but the Superior court took it into consideration and decided that the words ought to be struck out from the ans\ver of the jury, and then gave judgment tor the defendants. From this judgment there was an appeal to the Court of Queen's Bench, and after argument the court was divided, three judges being in favor of the respondents, and two in favor ot tlie sp appellants. The judgment 'jcing also in favor of the appellants, there has been an e(piality of opinion amongst the judges who have had to decide the ([(lesiion in the courts of the province. Two of the judges, the Chief .Fustice and Judge Mondelet, who were in fav(n- of the res- poudents, were of opinion that the word " premises " was apjilicable, in the seventh condition, to the case of a steamer, but their decision ju'oceedeil on the ground that a policy of insurance was a I'oatnit aUatoire, which must be carried out in good faith, and that the com- pany could not be relieved from their responsibility to answer for \ III I,, if'* I/. :j4 CONTRACT <;«XSTIHH'TIOX OF tlu; loss without proof of'docoption and fnuid, and a fui'lhor proof tliat llic lire liail extended \>y reason of more tlian tlie limitcil ([uanlily ol'giinjiowder Ik'iuj^ on board, Tlu'rc was not the slightest ground for suggesting any deception or fraud on the ])art of the eonipany ; and as to its being necessary to give proof tliat the tire had extended by reason of a bi'eacli of the condition, this seems to introduce into the contract an entirely new tei'ni. It-is important to observe, that in this very seventh condition there ai'e intances in which tlie com])any have e.xjiressly stipulated that they shall iK)t lie liable for any loss or danuige which has been occasioned by or through certain circumstances, as explosion in one case, and the use of caniphine in another ; thereby distinguishing in terms Iietween tlioses cases where the loss must be brought home to the specified cause, or to the use of the |irohibited article, and the case in ([uestion of their not being answerable were there more than 20 lbs. Aveight of gunpowder on board ; whether it has occasioned tlie loss or not. IJailgley, ,1., in part of his judgment, seems to think that the con- dition is not applicable at all to the case of a steamer ; but at the close of it he takes a ditferent view, and says the contract may be fairly read as follows : — " We \v\\\ insure your freight steamer; we " know that guniiowder is an article of freight and ti'ans[)ortation '' in steamers; but if you keep on board for use more than 2t) lbs., " and the vessel take tire, we shiill not be I'esponsible for the loss." Here, again, the contract is construed against the company by the introduction ot words which entirely change its meaning and effect, and an absolute jirohiliition against having more than a certain (juantity of gunpowder on board is renderetl inapplicable by inserting the words "lor use" into the condition. In the argument before their Lordshii»s. it has been contended on the part of the resi)ondents that, from the use of the word '' premises, ' the parties could not have intendetl that the ])art of the 'seventh condition in (juestion should ajiply to the steamer insured; anil that there were extrinsic circumstances to show that it coidd not have been in the contempla- tion of the j)arties that the wonl '' premises " should be so understood. In order to construe a term in a written instrument where it is used in a [)eculiar sense, different from its ordinary meaning, evidence is admissible to prove the peculiar sense in which the parties under- stood the wonl, but it is not admissiiile to contradict or vary what is plain, Xow the word "premises" although in ])optUar language it is a])plied to buildings, in legal language means '' a subject or thing previously expressed " ; ami the question here is, in what sense this word is used, which must be gatherey tho lulf tho d upon luippli- (;0.\STR(JCTION OF Ciiblc. It is said lliat this insui'Jinco wiis upon a tnulinjf stoamor; that it was the usaijo of stoamcrs of this (l(.'scTi|)tlon to oarrv gun- ])owdcr on freight; that tiiis was known to tlie oom])any, and thcro- fore, it must ho taken tliat tliey did not mean to inelude this portion oftlie seventii eondition in the insurance. But assume that it was notorious to the coni])any that it was the usage of a steamer of this deserijjtion to carry gun[)owder U])on freight, why should they not, for tiiut very reason, desire to limit their risk hy preventing more than 20 lbs. of such u hazardous article being cari-ied at any one time? If the condition is not to he consideretl part of theconti-act, this strange c()nse(|Ucnco will follow; that it being clear to the parties insured that tlie com])any desire to guard themselves in the ease of houses and liuildings from the hazai'd of tliere being U])on tlie premises at any one time more than a linuted(iuantity ofgini))owder, and having excluded gunpowder altogether from those hazardous risks I'or which an additional premium is to bo paid, tho conditions stating that gunpowder under the circumstances is 'to be insured, this steamer nught, during the whole continuance of the policy, carry liackwards and forwards cargoes of gunpowder, tho com])any re- ceiving no jyremium for the additional risk incurreil ; and in case of the vessel taking tire and being burnt, though not originally by an e.\])losion, but of course the gunpowder eontril)uting materially to exti'ud the tire, tho comjiany would be answerable for tlio loss. The (piestion then is, whether assuming under these circumstances that it was more probable tliat the jirohibition with regard to tho amount of gunpowder should bo included in the contract bet., eon the parties than not, tho word " jiremises" must not receive a reasonable cons- truction, which would make it npply to this particular contract. !No\v it is quite clear that tho ]>o])ular sense of tho word is excluded, because there are no Ijuildings to be insured. Then it only remains to give it that moaning which the reasonable construction of tho contract recpiires. Mondolet, J; says, that "The form of tho policy " is one which should not have boon made use of relative to a " steamer; but inasmucli as this policy, thougli imjiropor, has been " accepted by the insured, and they must be taken to have road it, '• since they iiave signed it, it is right and Just that tho word '• pro- '■ mises " should bo intorpretetl against them, and adjudged to refer " between tho i)ariics to the steiunor, which was the object, the solo ■■ object, insured." If, then, this eondition is ap])licablo to the stibjoct insured, tho only question which arises upon it, is, whether tlie facts bring tho case within the condition u|)on which the tinding of the jury, that there was at the time of the tire more than 20 lbs. Aveight of gun- jiowder on board, is conclusive. Undo" those circumstances, it i.s (piito immaterial whether tire was or was not occasioned by more than the s|iocitiod quantity being on board. The ])arlios have agreed to this as a condition in tho policy, an. 21S: — In mercantile contracts, and indeed in all contracts where the meaning of language is to be determined ly the court, the governing principle must be to ascer- tain the intention of the parties, through the words they have used, this ])rinciple is one of universal application. It is seldom, in mercantile contracts, that any technical or arti- ficial rule of law can be brought to bear upon this construction. The question really is the meaning of language, and must be the same everpvhere. There may be rules to assist the courts in the construction of contracts in certain cases, and .some have been re- ferred to as existing in the law of Canada, but they do not interfere with the decision to which their Lordships have come. It may bo clear that by the law of Canada a vendor cannot enforce a contract imless the thing which ho has sold can be definitely ascertained. If the contract is so obscure that the subject matter of the sale cannot be identified or the terms of the .sale 'defined, the vendor could not enforce the contract. So also in eases of douljt, it may be that tho interpretation should be against the vendor, but that inust be under- stood of cases of doubt which cannot be otherwise solved. It would follow from these rules, that where a stipulaticm is ca])alile of two meanings equally cnnsistent with the language em])loyed, that shall be taken winch is most against the stipuhitui' and in favour of tho other i^arty. 1 Quebec, 1873 April 22, L. R. V. 1'. C. 2' 3. C0NT1{ACT 247 t'ONNTRIJCTIOSr OF McLean v. ilcIvAy 138. It was stipulated in a deed of sale, that au adjoiuiug piece of laud, thereiu descriljed " shall uever be hereafter '■ sold, but left for the commou beuelit of both parties aud '■ their successors." lu coustruiug this clause, their Lordships held : first, that it Avas au agreement that this space shall be left open aud unsold Avithout auy structure thereon, for the inutiial enjoy- ment of both parties, but not that both should share the profits that might be raised out of the land ; second, that this agreement did not contravene auy rule of law ; third, that the ownership remained in the original proprietor. .Mau.shall v. Maclike '^ 139. In construing a contract in this case, their Lordships decided that the respondent, a member of a firm, having transfered to the respondents " his share " in a c'ertain mortgage held by the iirm, by those Avords, must be under- stood the " share " of his iirm, and not merely his individual share as bet\A^een himself aud his partner. Government ok Newfoundland v. Newfoundland Railway Company ■' 140. The respondent entered into a contract with the gOA'ernmeut for the construction and working of a railway to be made in a specified time. The go\'ernment undertook to pay to the company au auuual svibsidy " to attach iu proportionate parts aud form part of the assets of the com- pany as and Avheu each live miles section is completed and operated ; and also to grant 5,000 acres of land for each mile of railway completed, on the completion of each section of five miles." The company made part only of the road and assigned. Their assignees claimed a proportion of the subsidy and of the grant of land. The Judicial Committee held that as each of the sections was completed, the right to 25,000 acres of land became perfect, without depending in any AVay on the completion of the Avhole line ; that also on the completion of each sec- tion a proportionate part of the Avhole subsidy became payable as a separate subsidy, subject to the condition of continuous efficient operation of the raihvay. 141 It Avas also held that the government has the right 1 Xovtt Scotift, 1873 May 9, L. R V. P. C. 329. 2 Victoria, 1885 March 17, L. R. X Appeal Cases 32,5. 3 Newfounilaiul, 1887 Feb. 7, L. R. XIII Appeal Cases 199. 248 C0XT1{ACT It. \l- }■ I .':/ t: t'OWNTRlTC'TION OF to set-otf a counter claim for damages for breach of contract, on account of the non-completion of the entire line ; and as the claim opposed in compensation and the action of the compary have their origin in the same contract, the sett-off has etlect against the assignees of the company, Watson X. Mid Wales Railumy Cuiiipan//, L. R. 2 C. P. 51)8 ; In re Milan Trumwai/ Compani/, 22 ch. 1). 122 ; Watson v. Carl, L. R. 2 C. r. 593"; 25 ch. U. 522 ; Bradford Bank v. BrigTRvi'TiTN. See iNTERxVATlONAh LAW : Hsdem verbis. PERFOK.HAXCK OF ViVERs v. Tick ' 144. Where a party has made bona fide a contract in igno- rance or error and is i)rejudiced by it, a court of equity will 1 New South Wales, 1887 April 2.3, LVI Law Times N. S. -li'j. 2 Quebec, 1889 July 27, L. R. XIV Appeal Cases G37. 3 New South Wales, 1863 Dec. 1, I Moo, N. S. 520. CONTJJACT -'4il PKRFORMANCR OF not order a performauo«^ of the contract. The remedy of the ]>laiutitt'is an action in damages for the non i^erformauce of the contract. Loud Jkstick Knioiit BiucK. ]). 52C : — It is not tlic lialiit ufa r in eight days, the money being required by the latter to pay his pressing debts. But OAviug to circumstances the money was not furnished till nineteen days, and the bor- rower had been obliged to borrow money elsew^here in the meantime. Held that the delay of nineteen days was un- reasonable and that consequently the agreement was not binding. VOIDABLE See CRIFTION See Creditors : RESPOXNIBILITY. verba. Evidence : iisdem verbis, Fraud, Pres- : iisdem verbis. COMPOSITIOX eodem verba. CUNTKACTOll See Architect and Contractor : eodem CONSTITUTIONALITY OF LAWS. See Legislature : legislative powers, Statute construction. 1 Madura, 1860 March 7. II Law Times N. S. 05. CORPOHATIOX 251 CONSTITUTION OF «"APK BBKTow. See Cape Brkton. OF TIIK <'ATHOM<' CHUBCII IX t'AMAI»A. See CllUUCH. OF rornrs or jrNTicK. See CoiMiTs ov Justice, Jihusdktion CONSTRUCTKJN iS'^^ Boi'NDAnv, Chattel M()I!T(ia(!E, Contract. Meuciiant sHippiNo, Statute, AVill. CORPOKATION <'AI>A<'ITr TO ACqi'IRE IMHOTRAIII.KN. The CiiAiTDrfcRE Gold Minino Comi-anv v. Dksbauats ' 148. A trading or uou trading corporation, foreign or Canadian, ha.s no civil status and cannot acqiTire, or hold lands in the Province of Quebec without the permis.sion of the CroAvn being first obtained under the forms prescribed by the statute. And if a corporation purchased lands -without such authority, it has no action of damages against a remote ■warrantor even Avhen its immediate vendor Avould have such action. Sir Montaotie E. S.mith, p. 204: — It was contended, on l)chalf of the Respondents, that, by tlio law of Lower Canada, corporations could not acquire land or an interest in it without the licence of the Crown, and, as a consequence, were not comjietent to maintain an action on a real Avarranty against a remote warrantor. Jt was further contended that if this Avere not so Desharats had given txi express Avarranty, Avhich excluded the implied general Avarr.iiitj- against CA-iction, and that this limited oliligation gaA'c no title to Foley, or to the appellants as his A^endees, to maintain this action. For the Appellants it Avas ansAvered that the tlisabling hnv did not apply to trading corporations, Avhetlier foreign or domestic ; and, fiirthei', that if it did embrace them, such corporations AA-ere not incapacitated from acquiring, but only from holding lands, and that in either a-Icaa' their action Avas maintainable, and it Avas denied on their part that the ordinary legal >varranty against eviction arising upon contracts of sale Avas excluded by the terms of Desbarats' deed. In the A'iew theii- Lordships take of this case, it will not be necessary for them to determine tlie status and rights of foreign corporations in LoAA'cr Caiuida. or to Avhat extent, if at all, thej- ditfer from corporations establislied in the Colony. The hiAv of the ])roA-ince deals liberally Avith foreigners. By the Civil Code, Article 25, aliens haA-e the right to acquire and transmit moveable and immoA^eable property in the same manner as British- born or naturalized subjects; and bj- the Code of Civil Procedure, 1 QucbPC, 1873 July 29, L. R. V. P. C. 277. 252 COIM'OIJATION if ii: I ': iw 4'AFA<'ITY T» A('cr or iieltcr position than a (-'olonial Cor|ioration would he; and their Lordshijts, therefore, without furliier reference to the ahove distinction, will |)roceed to consider tlu! principal ([uestion discussed hy the Judi^es in the Court helow, viz., the capacit}' of minini:; or tradinjj; corporation to acipiire lands in the Colony. My the old law of France and her Colony, ijefore the Hdicls of Louis XV issued in 17-i;J in the Colony, and in 174!) in France, cor- jiorations niif^ht acipiire lands, but could not hold thcin without license from tiie Crown, if required to ffivo them up. But those Kdicts, which ai>i)ear to he suhstantially to the same elt'oct, incapa- citated corporate hodies from ac(|uirinfj; as well as holdin^f lands. This distinction is vorv clearly stated hy Pothier, ''Traite des J'ersonnes," Tit. 7, Art. 1. lie says: "J)esavanl I'Kdit de 1749, les communautes n'etaient pas i\ hi verite incapahles d'acipierir des heritages; mais si elles ])ouvaient les ac(|Uerir elles n'etaient ])as en droit tie les retenir tou- Jours. Elles jiouvaient etre obliges de vuitlcr leurs mains de ces h<5ri- tages, soit par les seigneurs, de qui les heritages acquis par olles relovaicnt ; soit ])ar lo i'rocureur du Roi. il inoins qu'elles n'eusseirt obtenu du Itoi des lettrcs d'ainortissemont, qui les rendissent ca- pables de possdder ct retenir ces heritages, on indemnisant les seigneurs." lie then ex})lains that the right of the King to oblige Corpora- ti(ms "ii, vuider leurs mains do ces hdritages " was tbiinded on reasons of public ])olicy, and that of the seigneurs on their title to receive protits upon nnitation of the lands on death and otherwise. Pothier further saj's : "L'Edit de 174!l a rendu les communautds absolumcnt incajiables d'acquerir aucuns heritages, comme Ibnds do terre, Les choses qu'il est delenclu par cette loi d'ac- ([UtSrir, no pcuvent etre acquises -X quelque titre quo ce soit, soit -X titre gratuit, soit a titre do commerce." The prohibitory force which the learned aulh >r ascribes to the Edict seems to ho amply justitied by the terms of it. It was not denied b}- the counsel for the Appellants that Pothier had properly declared the etfect of the Edict upon the Corporations with which it dealt ; but they contended that these were religio\is and eleemosynary bodies only, and the modern trading corporations were not within its scope. There can be little d(aibt that the main object of the Edicts was to discourage the excessive endowment of religious houses, but the Edict of 174;{ has words large enough to include .secular bodies also. Article 1, after enumerating particular Corporations, has the general description, " autres corps et commu- nautes ecclesiastiques ou la'iques." Anil the prohibition to acquire lands contained in Clause 10 is directed against " autres gens de mortmain " as well as religious bodies. It was argued that trading corporations could not lie deemed '• gens do mortmain," because their lands were not withdrawn from OOIU'ORATION 2r.3 CAPACITY TO ACariRK IMMOVKAIII.KN. comincrco, imd wore alii'imltlo. IJiit tho witlulniwal of lunds t'rom coiuniorco WUH only (iiH<, iiiiil not tlio inain, reason of tlii' law ot morhnain, wliu'li was foiimk'd, as jilainly appoars from I'otliior, not only on considorations of publir policy, but on (lio loss to tlu^ Ijords of tlii'ir si'if^niorial rights. Their L()r'rs, not to the Edict, but " to the general laws of the country ros]ioeiing mortnuiin ; " and their Lordshi])s think that it declares the disabilities which attach by the general law of mort- main to all Corporations without distinction. It may be here observed that this view of the Code is affirmed by the majority of the Judges in the Court of Queen's Bench in the present case, and is not denied by the two dissenting Judges. Mr. Justice JJadgley refers to the Code in his judgment as fol- lows : — " Whatever doubts might have existed heretofore as to the pro- hibitive applicati(jn of the okl law with reference to merely trading Corporations, they have disappeared since the promulgation oftlie Codi!, which has declared those old law prohibitions to be and to have been our jtrovincial law. The terms of the Code Article are too plain for a doubtful construction, and in their generality em- brace all corporations (secular, lay, or trading), and subject them all to the same disqualifications to acquire real property, without the Uoyal or legislative permission first had and obtained." These observations on tlie declaratory force of the Code are en- titled to great weight, from the fact that Mr. Justice Badgley was one of the Judges who, in a case relied on by the Appellants (Kierzkowski v. Grand Junction Railwaj- Company, 4 Lower Canada Jurist 86), expressed an opinion that trading corporations were not ''gens de mortmain.'' In that case, however, the Eailway Hi ll iti ,li( 254 COHPORATION CAPACITY TO AC<117XRE IMMOVEABLES. Cuinpiiny liiul IcLcislativo powers to purchase lands, and the question arose ineidentally in an action for seigniorial du"s. Wliatever may- be the wortli of "the opinions oxpres.-ed in that case^ tiie liigher autliority of tlie Code must now prevail. Their "Lordships, for these reasons, think the Uourt of Queen's Bench was right in holding that the Appellants were incapable, without the license of the Crown, which it is nor, averred they ])0s- sessed, to ac([uirc any title to the lands sold to them by Foley. But Ix'fore considering the effect of this disability o;i their right to maintain the jiresent action, it will be convenient to advert to the nature and extent of the warranty upon the sale by Desbai-ats to Foley, of which the Appellants are seeking to avail themselves. By the law of France prevailing in the Colony awarranty against eviction is implied in contracts of sale, but it is permitted to dero- gate fi )m it by contract. Pothier says : — •' Le droit commun des contrats de vente qui oblige le vendeur envers facheteur a la garan- tie de la chose vendue, ue concernant qu'un interC-t particiiiier des acheteurs, il est ])ermis aux parties de deroger a ce droit jtar con- ventions particulieres." (" Traite du Contrat de Vente," Part II, chap. 1, sect. 2, Art. 7.) The author then gives instances of conventions h.iving this effect; one of them being : •'Celle par laquelie le vendeur stijjule quil ne- sera garant que de ses faits.'' The Code of Lower Canada, in effect, embodies this law. Article 150(3 dechires that the warranty to wliich the seller is obliged in favour of the buyer, is either legal or conventional. Legal warranty is detined in Article ].")()S, and includes war- ranty against eviction by reason ot any right existing at the time of sale. Articles 1507, 1509, and 151(t, declare the manner in which this warranty may be exchuled or diminished, as follows: — Art. 1507. "Legal warranty is im})lied bylaw in the contract of sale witlumt stipulation. Nevertheless. ])arlies may, by specia' agreement, add to the obligation^ of legal warranty, or diminish its effect, or exclude it altogether."' Art. 1500. "Although it be stipulated that the seller is not obliged to any warranty, he is, nevertheless, obliged to a warranty against his personal acts. Any agreement to the contrary i< null. ' Art. 1510. " In like manner when there is a stipulation excluding warranty, the seller in case of eviction isoliliged to return the price of the thing sold, unless the buyer knew at the time of tlie sale the danger of eviction, or liad bought at his own risk." By the deed of sale Desbarats expressly bound himself and his heirs to warrant and guarantee Foley against all mortgages, debts and dowers whatever. There is no other express warranty. The terms of transfer are limited to the rights and interests Desbarats had, or could ilemand in the subject-matter of the sale. It is evident that the e\nctiou by the Crown is not a breach of the express warranty given by DesbtiVats. Hifs lialiility for this eviction must, therefore, be founded, if it exists at all, on legal .varranty. It was insisted on the part of the liespondents that die legafwar- COKPORATIOX 255 CAPACITY TO ACai'IRR IMMOVEABLES. ranty was excluded by the conventional warranty, upon the ordinary rule of construction, expressmn farit cessare taritum. It in true that the conventional warranty of Uesbarats docs not contain the word " only," or other equivalent expression ; but it seems to be a reasonable, if not a necessary, implication from the insertion of a limlied conventional warranty, that it was the inten- tion of the parties to exclude the larger legal one. and this implica- tion is strengthened by the peculiar form of the convej'ance, and by the disclosure in the deed of the fact that patents had not then been granted by the Crown ; a disclosure which was not made in the con- veyance, by Foley on his sale to the Appellants, f(jr a price which wtls an enormous increase on that he had paid to Desbarats. There appears, then, to their Lordships to be strong ground for holding that the legal warranty was excluded on Deirbarat>' .-ale ; and that no action could have been maintained by Foley against Desbarats upon an eviction by the Crown ; and it ibis is so, none can be maintainable against him by the Appellants for such evic- tion, even if they had been under no disability; because, in suing Desbarats as a remote warrantor, they can have no greater remedy against him than their immediate warrantor, Foley, to whose rights they are in ettcct subrogated by the 0])eration of Article 12fi ot the Code of Civil Procedure. It is not, however, necessary to rest tiic decision on this ground, because, assuming the higal warranty not to have been excluded on the sale b}' Desbarats to Fole^', their Lordsliijis think that the kgal disability to purchase lands muler which the Appellants are jjlaced prevented them from acquiring the right to resort to it. .Sueh a right can only spring from a valid sale, and the sale from Foley to them being invalid, by reason of their incapacity to ])urchase, the consequential right to sue Desbarats on a legal warranty could never arise. Whatever may be the case, as between F been averred by them. This pleading point, it ma}- be observed, is entirely beside tho substance of the case ; for there can be no doubt that, if a 'icenso had liecn really granted, the Appellants would have applied and lieen allowed to amend theii- Decdaration and aver its existence. In the result, their Lordships will humbly advise .Her Majesty to atiinn the judgment of the Court of Queen's Bench, and to dismiss thi-^ .Vppeal with costs. i,EuiNL.ATiox <»- ^ec Le( tisL.vTUllE : legislative powers : iisdevi verbis. soTiti: or At'Tiox. Union Ste-vmsiiii' Company of Xkw Zkai.and v. Mki.houknk IlAKlioril TllLST CoJi.Missto.\Kas ' U'.i. The MelbouruL^ Harbour Trust Act requires that m all actions to be brought against " anyper.son" for anything- done under this aet, a previous notice in writing clearly- setting forth the nature of the intended action, th(^ name and place of the plaintiif and of his attorney, shall be given. 150. It was held /tVst, that the word " person" in the act includes any cori^oration ; ^ecoml that an ordinary letter Avritten by the plaintiffs attornev not intended to be such notice is not in compliance with tke act . I Victoria, 1884 Fel). 6, L. R. IX Appeal Cases Siij. COIIPOIIATIOX 257 FOKEKiX Bate.man v. SkUVK'K ' 151 The Western Australian JoitU Stock Compani/ Ordinance Act Of 1858 does not apply to foreign corporations doing WuMJi'iss in the colony oi" Western Austr.ilia. Therefore, the members of these companies are not individually respon- sible for the de1)ts of tlie company. BuV ely v. Hchntz, Law Rep. 3 P. C. 264. :M>WEK OF A RAILWAY COnPA^'Y TO TRA:V»FKR THKIK RIGHTS TO <;o:vTRA('TORM. Scu PuiNCIPAL AND AoENTS : power of delegation. P0W1:RM OF DIUEC'TORS. Iiivi.N'E V. Union B.vnk op Australia ' 152. The articles of association of ♦^he Oriental Rice Com- pany, limited. (Contained no limitation of their power of bor- rowing ; but, the authority of the directors to borrow was restricted to half of the actually [)aid-up capital at the time of the borrowing. The dirertors had also the right to mort- gage the I'ompany's property to secure its debt. The Judicial Committee, in a suit between two mortgage creditors who claimed privity of hypothecs on the company's rial estati^ held, that the limitation of the power of borrow- ing and of mortgaging was mert-jy a limitation of the au- thority of the directors conferred by the same article ; that it was not part of the constitution of the company. Conse- quently, that it was not a limitation of the general powers of the (Company, or of the whole body of shareholders ; and that the acts of the director- in excess of their authority might be ratified by the comjiauy and rendered binding. And this ratification can be legally made by a majority of the shareholders present, though not a majority of the shareholders of the company. i>0\VKRN TO nOilTUAGK. Bank uv South Austkai.i.s v. Auhaha-hs i\: ai,. ' 153. The power contained in a deed of settlement of a joint stock company authorizing the directors to hypothecate the property of the company, does not given them authority to include' in such mortgage or charge future calls, or, iu other words, unpaid »'apital of the company. Slatdei/'s Case, 4 de G. J. and i>. 407 ; S. C. 38 L. T. 53i]. REtiPM.VHIillMTY OF A RAILWAY <'OMPAyY TOW.VRIt.S THIRD PAKTiKN. See ruLNOiPAL AND AoENTrf : power of delegation. 1 WestLTU Australia, '.881 Fcli. 23. [.. U. VI Appeal Ca3eB386. 2 Riviigooii, 1877 .Ma;cli 10, f.. R. li, Appe.il Cases 36G. 3 South Austialia, 1875 .March IJ, L. R. \1 P. C. 502. 1 _ Ii '.. J ,11. r I I'" 258 COEPOKATION TRUST FU3i». DdlUK V. UdAHU von the MANAflEMEXT OF THE TEMPORALITIES FUND UK THE rUESItYTERIAN CnUttCH OF GANADA ' 154. "When a trust luud has beeu entrusted to a corpora- tion, subject to the payment of life annuities to its founders and others, each founder has an interest beyond the mere reception of his annuity, and can claim that the fund be administered in strict accordance ■with law. And he has also the right to enforce in law the performance of the agreed conditions of the foundation. VOTIXO. North-West Transportation Co. v. Beatty '' 155. If a contract of sale is made by the directors of an incorporated company with one of them, which although voidable, is made in good faith and not in excess of the directors' powers, it does not preclude such vendor from exercising his voting poAver as a shareholder in a general meeting to ratify such contract. 156. And if to obtain a majority, the director Avho has made such contract, use means authorized by the constitu- tion of the company, as e. g. voting by proxies, the votes will not be set aside. Sir Eichard EAUdALLAY, p. 59;j : — Tlio general principles ap- plicable to cases of this kind arc well established. Unless some provision to the contrary is to be found in the charter or other instrument by which the company is incorporated, the resolution of a majority of the shareholders, duly convened, upon any question with which the company is legally competent to deal, is binding upon the minority, and consequently upon the company, and every shareholder has a perfect right to vote upon any such question, although he may have a personal interest in the subject matter opposed to, or dilterent from, the general or particular interests of the company. On the other hand, a director of a company is precluded from dealing, on behalf of the company, with himself, and from entering into engagements in which he has a personal interest conflicting, or M'hich possiblj" may conflict, with the interests of those whom he is bound by fiduciary duty to protect ; and this rule is as applicable to the case of one of several directors as to a managing or sole dii'cctor. Any such dealing or engagement may, however, be .iffirmed or adopted by the company, provided such affirmance or adoption is not brought about by unfair or improper means, and is not illegal or fraudulent or oppressive towards those shareholders who op- pose it. 1 Quebec, 18SJ Jan. 21, L. R. VII Appeal Cases 13G. 2 S. C. Canadrt, 1S87 July 21, L. R. XII Appeu: Cases 589. CORPORATrON (Jrr\(rip.u,) U O R VO K A r I () N ( M u iN i c i r a l >5n CREATION <»F frKAIIAM V. HkHHV 157. The colonial Act gives po-\ver to the Crovernor in Coviuiil to establish new muuioipalities by proclamation, but before acting, a petition has to be presented to him signed by the resident householders. A petition was accord- ingly presented by certain householders proposing certain boundaries therein described, but the Groveruor in his pro- clamation described this new municipality in very diii'erent terms from those set out in the petition, including lands which the petitioners had not asked to be inclvided, and omitting lands which the petitioners had prayed to have included. That irregularity was held fatal to the validity of the proclamation, and, consequently, the municipality in (question was not duly constituted or created in point of law. I'OWKKS OF Sl-ATTERY V. XaYLOR ' 158. Power was given by Act of Parliament to a muni- cipality to make by-laAVs regulating the interment of the dead. It was held that a by-law made by that municipality pro- hibiting the interment of the dead wnthin a certain distance from any biiilding, hovise, street, road, eti'., whc'eby a cer- tain place or i)iece of land bought ]>y the appellant in a cemetery was lost, as this cemetery was within the distance prohibited, was intra vires and legal. Lord iroiiiiousE, p. -UH : — But a ^y interference with many actions and many modes of enjoying property, which, but for such regulations, would be lawful and innocent. It is difficult to sec how the council can make efficient bydaws for such objects as preventing tires^ j)re- venting and regulating places of amusement, regulating the killing of cattle and sale of butchers meat, jtreventing bathing, proviiling for the general heaUh, not to mention others, unless they have sub- stantial powers of restraining people both in their freedom of action and their enjoymeut of pro[)erty. The interment of the dead iu question is just one of those att'airs in which it would be likely to occur that no regulation would meet the 1 South Wales, 1S05 MiireU II. Ill Moore 20">. 2 New South Wales, 18R8 Marcli 21, I., li. .Kill Appeal Case? 446. 2C0 COPiPOUATlOX (.NFi-NiciPAiO lU rOWF.R!. OF case cxfopt one which wholly prevents the desired or accustomed use of the property. It may well he that a plot of ground having been originally far from liahitations and suitably used as the burying place of a family or a religiotis society has been reached by the growing town, and has ho become unsuitable for the ])ur])0se. In such a case a power to regulate woidd be nugatory unless it involved a power to stop the burials altogether. r. 4o(t : — T" regulate the place of burial is certainly' one of the most im])ortant points in regulating burials for the health of a community, jjcrhaps the most imjiortant of all. It is indeed serious to iirevent jieoplc from indulging their aft'ections in a matter which they justly consider so sacred as the disposal of their dead. Such proliiiiitions should be well considered before they are passed. But they are undoubtedly necessar\- in large and i;rowing communities. And tiieirLordslr'js cannot hold that a by-law is ultra vires because ill laying down a general regulation for the borough of Petersham it has the etl'ect of closing a particular cemetery. KCNPONSIBII.ITV OF H(iRiH-(iM OK HATIiritST V. .Mac I'llKllSO.N ' 159. A muuii'ipal corporatiou coustructed iu a street uuder its coutrol a barrel draiu. The brick- work of this drain haviug broken away, a hole was formed, and the plaintili's horse fell into it, the plaintiff receiving wounds and breaking his leg. The corporation was held responsible in damages. 160. Their Lordships, on the principle that iu this case there were grounds for an indictment, held therefore, that there must be an action at the suit of any person who sustains direct damages as there would be against a public officer abusing his office, either bv commission or omission. White V. Hindley Load Board of Health, L. R. 10 2 B, 219 ; Henley Y. Mayor and Burgesses, of Lyme Regis, 5 Bing 101 ; 8. S. in error 3 B. & A. 77, and 8 Bli. (N. S.) 690 ; McKiimon V. Petisnn, 8 Ex. 327; Atkinson v. Neuu-astlc Waterirnrks Co., 2 Ex. D. 441 ; Hartwell v. Ryde Commissumrrs, 5 B. & S. 361. KESPONSIBILI'rr OF 3IESIBKKN 4»F .lIl.^iK'IPAI. <'4»r.>('II.N. Bowe;-; v. The City of Toronto ' 161. The corporatiou of the City of Toronto, in Cauuda, were authorized to issue diM^entures to a certain amount, to help in the construction of The Toronto, Simcoe and Luke Huron Union Railway. The appellant was then the ma^'^or and a member of the Finance Committee, and took an active part in passing a by-law which authorized the issue of the 1 .V. S. Wiilcs. 1870 March I I . L. R. IV P. C. 250. 2 UppiM' Ciuiftda, 18,'>8 Feb. 15, XI Moore 403. COHPORATIOX (McNiciPAh) •HJl RENPO.N'MIBILITY OV MEMBERS OF MUNICIPAL COl'Xl'ILM. said debentures. The corporation assigned to the contractors of the railway some of the debentures which were sold by the contractors to a firm of which the appellant was a member. The firm afterwards sold the debentures bought from the contractors withoiit the knowledge of the cor- poration and made a large profit on them. The Judicial Committee, in an action to account, held that the appellant miist, under the circumstances, considering the manner in which he acted throughoixt the transaction, be treated as the trustee of the corporation ; that he was not entitled to any benefit received from the sale of tae deben- tures ; and was liable to account to the corporatio)i for the ascertained and unquestioned amount of profit made and received by him in the transaction in which he had engaged in respect of the sale of the corporation debentures. 162. And, held further, that it maae no diftcrence that the profit from the sale of the debentu 'es was made by a firm and not by the appellant alone, or that the corporation did not lose anything, and that this governing body would have acted exactly as it did if the appellant had not been a niember of it. LiiRi) Ji:.STK'K Knuiiit Bruce, p, 517 : — The decree deuLs with the appellant as an agent or a trustee who, while acting in the agency or trusteeship, acquired for himself bj- contract, without the knowledge of the persons for whom he was agent or trustee, an interest in the snlijeet of the ngoney or trusteeshi}), and is ac- cordingly incapahle of retaining from them the ljenerit,if any, of the acquisition. And, it has seareely been denied in the argument, that if the ai)pellant stood in the relation of agent or trustee towards the corporation or inhabitants of Toront". the decree (subject to the point of jfiTfj/Z's absence) has charged the appellant rightly. The rehitiim, however, was di^puted; but. as their Lordsliips thinly, un- Hucees>fidly. He may not have been agent or trustee within tlie common mciining ^r ].opular ac.vptation of either term, but he was HO substantially; be was so wiihin the reach of every principle of civil jurisprwienee, adopted for the purpose of securing, so far as possible, the tidelity ot those who are entrusted M-ilh tlie power of acting in the affairs of others, If the appellant, as to the matters sub>isting in the year 1.S51 and 1S52 respectively-, between the cor- poration ujion one hand and the conlriictors and'liailway Company on the otiier, so far as tlie appellant had anything to do'with them, was not iicijotiorum alUnorum (jestor, it seems dittivuU or imjiossible to say that any person ever was so. It is evitlent, we think, that as a member of the corporation, and as mayor, he took part in tho.se matters before and after the evil day of the 24th June 1S52, to an extent more than sufKeient to incapacitate liim I'rom dealing as lie (lid with JIhvks and the contractors, unless for his own loss, if ther«' should be loss, and for the gain of the corporation, that is to say, of 2fi2 ('( )IM'( )J{ATI()X (Mi;.\irti>Ai.) i I'" • t k l; II 1 1 •■■■% Ki:MI>0>'NiniI.ITY OF MK.nnKHN OF Mir.MCIPAI. (-4»l':S'4'ILN. the iiiliiiliiUiiits of Torniitu, il'tlu'i'o should l)0 yiiiii. Tli(* iil)k' ( niinst-l for IIk' ii|)i)i'lliiiit (lid not .-iUi>;,u;o.>t timt in the case of u private man f>f ])ro|K'i'ly haviiii;' occasion and dcsirini;' to raise money l)y issuing' delicniiires' payalile as to tlie principal at a distant day, hut with intermediate interest, and eiu|)loyini;' an ai;-eiit foi- the purpose, liu' ajfcnl could act in tlie matter, with ren'ard to the dehentures, analo- gously to the niainu'r in which the appellant acted here, as to those in question, and retain the ])rotit from his principal. The dill'erenci' lietween the two cases ajifiears to their liordships accidental merely, and immaterial. It was inciimlient on the appellant, while the atfiiir of the (lehentures was jiendini;,' and unsettled, not to ])lace iuniself voluntarily in a position in which. while i-etainini;- the ofHce of mayor, lie would have a private interest that mia;hl lie ojiposed to the unihiassed [jcrfornnincc of his official pellant Iiad not heen a memher of it, that the coi'- jioration took altogetlier a ])rudent and correct course, and has lost nothing; and that any person not connected with it might honestly, safely, and erteclually have made the hargain with Ilincks. and the contractors which the ap|)ellant did make. Assuming the alleged facts thus stated to he stated accurately, we conceive that they make no ditl'orence P. 523 : — It has heen also argued that the governing hody of the corporation was a deliheralive hody, and on that ground out of the operation of any civil rules or prii cijiles a])])licahle to agents an- jiectiug matters in which they are perstmally interested, and ilo so without censure or risk'. We are of opinion. howe\'er. tliat neither the governing character nor the deliherative character of tlie cor- jioratiou council makvs any difference, and that the council Avas in ett'ect and sultsfance a oody of trustees for the inhahitants of Jbroji^o; trustees having a considerahle extent of discretion and jiower. having also duties to jierform, and forhidden to act cori'iipth'. With regard to memliers of a Legislature, [irojierly so called, who vote in siijtport of their ])rivate interests; if that ever happens, there may possibly ho insurmountahleditiiculties in the way of the ]iraclicahle application of some acknowledged jirinciples liy courts of civil justice, which courts, however, are nevertliele.-s hound to COI?rORATION (Municipal) 2fi3 RI-.MiMINNinilJTT OF MEMBERH OF SIVXiriP.VIi <'01TN(roprietors. 104. Held also, that -whatever may he the right of the proprietors to damages, they cannot demand them by action at common laAV, but the damages must be determined by the Commissioners in expropriation under 27 & 28 Vict. ch. 6. •' Sir iLoNTAuuE E. S.mitu; p. 402; — Thoautliority under which the Corjjoration closed the street is a by-law made in pursuance of an Act of the Provincial Legislature (28rd Vict. c. 72). Section 10 of this Act authorized the Council to make by-laws for various purposes, and among others (sub-section (!), " to regulate, clean, repiiir, amend, alter, widen, contract, straighten, or disron- finuc the streets, squares, alleys, highways, bridges, side and cross- walks, driiins and sowers, and all natural water courses in the said city." A general by-law was afterwards passed, section ;} of which is as follows ; — '' The Council of the said City of Montreal may, and they are hereby authorized whenever, in their opinion, the s.'ifety and con- venience of the inhabitants of the city shall require it, to'diseontinue any street, lane or alley of the said city, or to make any alteration V'l the same, in part or in whole " And subsequentl}', on the 11 September, IStitJ, a special by-law relating to St. Felix street was made, which, after reciting thiit it 1 Quebec, 1876 .Nfay 16, L. R. I Appeal Cases 384. 2 Tliis decision was comiiiented on and criticized in the case of Morrison v The Mayor S,' <>'■ of Montreal, IV L. .V. 25, (1880) by the Coiut of Queen's Hench, (in appeal). The principles here decided were not followed ; and a claim for damages against the City of Montreal before the ordinary courts, under the same Statutes, was maintained in principle. .1^ 2t',4 (•OI.M'OIJATIOX (MiNirii'Ai,) i; f I!; " ( 'I' If' ,'•« 'I' I i Ji: RUaiT T4» CLONE NTRKKTN. was (lei'iiu'd c'X]it'tlicMit in tliu intcroHt of the j)iililic 1o open ii new Htroot (ik'scriliiii/^ it)," and to discontinue ii portion of St. Felix street," ordains and enacts, that a new street called Alliert street ho o]iened, and that a section of St. Feli.x street, descriljing by a ))lan and nieasiirenient ( heinj,' the jmrt to the south of the jilaintili's houses) " he henceforth disCDntinued." It was notdisjiuted that under those powers the Corjiorat ion might lawfully discontimie this jiortion of tlie street, liut it was contended that they were hound, as an antecedent condition to indemnity tho jilaintitf for the damage he would therehy sustain, and that erecting the hai-rier hefore iloing so was an unlawful act and a tressjiass. The whole case, indeed, of the ]ilaintitl, so iiir as this action is con- cerned, rests on the assumption that his property has heen invaded in a way to constitute " une exjtropriation, ' which, it was urged, could oidy he lawfully effectetl in conformity with Article 407 of thel'ivil Code of Lower Canada, "upon a just indemnity ])reviouHly paid." It was argued that tlie Statute giving tlie jKJwer to make by-laws to discf)ntinue streets shfiuld be lield to have been passed subject to the general law embodied in this Article. Article 407 rims thus : '• Xo one can be compelled to give up-his property excej)! for public utility, and in consideration of a Just in- demnity j)reviously paid." A similar Article is found in the Code Napoldon (Article 545). These Articles undoubtedly embody a fundamental jirinciplo of the old French law, which, whilst allowing private jiroperty to be taken for purposes of public utility, asserteil its generally inviolable nature by requiring previous payment of a just indemnity. They are found both in the French and Canadian Codes under the title " De la Propridtd," and in both follow the Articles which define pro- perty or ownership. The original Article in the Code Xapolc^on was in effect the de- claration of a principle which, in France, has been ajiplied by numerous special laws. In the Canadian Code, also, Article 407 is supplemented by Article ISStt, which is as follows : — '' In oases in which immoveable property is required lor ]iurj)Oses of general utility, the owner may be forced to sell it, or it may be ex])ro|)riated by the authority of law, in the manner and according to tlie rules prescribed by special laws." In the special laws passed both in France and Canada, the prin- ciple of previous indemnity in cases of "expropriation," ])roperly so called, appears to have heen generally maintained. But excep- tions have been made in works of urgency; and it is obvious that special laws, when passed by competent authority, may atlopt, reject, or modify Ibis principle. A distinction has long been made in France, and indeed it exists in the nature of things, between "expro](riati(ui," projierly so called, in respect of which ])revious indemnity is ])ayable, and simple ''donimage;" and a further distinction between direct damage, which gives the sufferer a right to compensation, and indirect damage, Avhich does not. Great research was displayed by the learned counsel on both sides COKI'oHATIOX (MirMciPAi,) Jt.r) RIGHT T4> ('I.ONK NTKEF.TM. in iiivi'Kti^'ating tlic history of Frcncli Irnv and ]ir(K'c>(hiro on tlioso Hubjects, the powers eoiitcrred on tlie Trilmniils. ami llu' cdnJlictH between tliom. Aecording to tlio opinion of I )alloz the first com- plete system of procedure is to lie found in the Law, 8 Mars, 1S1((. A short history of this and other laws u))on the subject will be fnund in Dalloz's " H'l'iiertoire," tit. " Kxproprialion." c. 1. It is sufficient for the present ])urpose to note that a conHiel arn>o under these laws between the ordinary Courts of law and the Ad- ministrative Tribunals, during which numerous decisions bearnigon the present controversy look jilaee. It was settled, at least after the law, 8 Mars 181(1. that the Courts of Law alone had jurisdiclioii to di'ciile on the indemnity jiayable to owners of ju-ojierty in cases of exiiropriution, and that the jirovinceof the Administrative Tribunals was confined to cases of damage, but contlicts constantly arose as to whether jiarticular cases fell within one or the f)tlier categoi'v, and the claims of owners of houses to indemnity for injury to their HcrvitutleB or (juasi servitudes in jiublic streets were a fertile source of them. Demolombc adverts to the.se conflicts in liis "Truite des Servi- tudes," and thus sums up the controversy. (Vol. 12, Art. TOO.) Assuming, as he does, tliat the owners of houses bijrdering on street.s are entitled to indemnity when " leurs droits d'accc^s ou do vues on d'egouts," are sujipressed, or injuriously affected, he asks what is tlio comjietent authority to determine their chiims ? His answer is, " Cetto question est elle-memc fort delicate. C'est le pouvoir jntli- ciaire suivant les uns puisqu'il s'agit d'une question de propriety ljriv(!e, C'est au contraire, tl'apres les autres, le pouvoir adminis- tratif, parce qu'il ne s'agit jias d'une veritable expropriation, mais seulement d'un simple tlomma(/e, quoique ee dommage soit perma- nent, et nous avons dc^ja dit (referring to vol. !), Art. 5(J7), que telle parait etre aujourdhin, apres beaucoup d'hC'sitation et de luttes, la doctrine gdiieralement suivie." Delaiicu, in his ''Traitt^ de I'Kxpro- priation,' arrives at tJie same conclusion. (See Art. 152, (jth Edit., j>p. 85 to 87.) No doubt in some of tlie French decisions and authorities the violation of rights of this kind has been treated has '"une expropria- tion rdelle." But in others it has been spoken of as being only analogous to it, as thus: "comnie s'il swbissait une expnjpriation r('elle dune partie de sol." (See Delalieu, p. 8(J; Curasson, p. 211.) Ee this as it may, the result of the decisions ap])ears to be correctly summed up by Demolombe, and it woulil seem that in France .nt the present day damage to rights such as •' droits d'acces " to streets is not deemed to con.stitutc " expropriation." Indeed, upon a reasonable construction of the language of Art. 407 of the Code, it seems to apply to property which can be actually ceded, and for which in- demnity could be fixed before it was ceded. The compensation allowed in France for "dommage," as dis- tinguished from ''expropriation," seems to be founded on an equit- able principle wJiich the s]»ecial laws have adopted subject to the regulations prescribed in them. J3ut claims for damage, otlier than that arising from the cession of property, being for tht loss caused ^, nS> ^^^ ^ '*^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I If 1^ 1^ ■U ■2.2 IS lit US 20 1.8 11-25 il.4 111.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y, USSO (716)872-4503 1^ ^ u.. ^ 266 COiiVG r?ATIOX (MiNiciPAL) 5 BI«HT TO <;i.4MB NTKRKTN. Iiy tlio I'Xi'cution oi' the works ami as a conseqiioiu-e of thoin, it would lio iiiii'i>aNonul)lp to roq»iro previous inilemiiity; iinleod, in many cam'H, the extent of damage cannot ho previously ascertained. Tlie discussion l)otweon the damage which grows from an expropriation, and (liat which arises from the execution of the works (" I ex(5cution ulk^rieurc des travaux"), is phiinly put and ilhistrated by Deialieu. Tiie hitter, ho says, is, " non hi suito do I'exprojtriation, mais hi suite do I'cxt'cution des travaux," and he shows how in tlio i.ature of things the indemnity for it cannot bo assessed ijoforehand, but should 1)0 the subject of a sul>sequent inquiry, even in the case where an adiial exproi)riation has taken phico. (See Delalieu, Art. 301 to 305.) Assuming, then, that the phiintitf had rights in St. Felix street which have sustained damage, their Lordships think he has failed to establish an expropriation, or an injury which would give him u right to preliminary indemnit}-. so as to make the Corporation wrong-dot; s, and their act on closing the street a troHi)a8s, and " line voie do fait," because such indemnity had not been paid. It seems to them than if he has any claim, it is one to bo prosecuted under the provisiims of the Act relating to expropriations by this Corporation (27 and 28 Vict., c. (JO) which will be hereafter con- sidered. (See on this ijoint Jones and Stanstead Ry. <3o., L. li. 4 P. C. !t8.) Their Lordships observe that one of the grounds on which Mr. Justice Taschereau has sustained the action, instead of sending the phiintitf to the Special Tribunal constituted by the Act referred to, IS that the parties had submitted to the jurisdiction of the Court, but they are unable to tind sufficient evidence of submission or con- sent in the record to justify th's conclusion. Whilst up(m the t'onsidcnit ions just referred to, it seems to their Lordshi]»s that the jiresent action is misconceived, tliey are reluc- tant to determine the case, without considering the other points (more nearly touching the merits of the claim) which were argued at the Hiir. These were : that the ])lainlifl' had sutt'crcd no injury which, by the French law, would give a right to indemnity; and that, if this were not so, the legislation authorising the act which causelics a ete ferm«$e il une de ses e.xtrt^niites, alors quV'lle reste, du cote oppostS, en communication avec d'autres rues." In Dalloz, " Recueil,'* 185G, jjart 3, p. 71, an important Arret of the Conseil d'Etat is set out, given in a case in which the owner of a house in a street at Toulouse, one end of which had been closed, claimed an indemnity of 40,000 fr. One of the consi(i(?rants of this Arret, which attirmed the judgment of the Conseil de Prefecture re- jecting the claim, is as follows : — " Considerant que si la Kuc de rOrmc-sec a t't«$ fermdo aux voi- tures k colle do ses e.xtrt^mites qui aboutissait it la dite place, elle est restee ouverto du cotiJ oj»pos«5, ct so trouvo encore en communication avec la nouvelle rue do 1 Orme-sec, qu'ainsi la dite maison n'ayant pas «5to privdo de son acct^s ii la voie i)ublique, la dt^preciation qu'elle aurait pu <5prouvcr no const 'tuorait |K>int un dommago direct et ma- tt^riel (pii pftt donner droit A une indemnit*;, ete. It cerfamly then appears that in Franco the depreciation caused to a house b}- stopping one end of a street, supposing it to remain open at the other, is not regarded as an interlerence with a servi- 268 COm'OHATION (Mjnicipal) RIOIIT TO CLOHE MTREETS. tude, nor (standing alone) 8uch direct and immwliate damage as will give a title to indemnity; and if thin ho so, there seems to he no reason or authority for declaring the law to be otherwise in Canada. The authorities referred to leave untouched the question whether, if a street were stopped at both its ends, indemnity would be i»ayable. It is enough to saj* that should such a case arise, it might possibly U' contended with effect that n virtual destruction of the undoubteu rights of access to the houses in the street so dctsetl had been occa- sioned which would give to their owners a title to indemnity. It was further contended for the plaintiff that V)ej'ond the mere ]»assage through the street of which tne occuniers of his houses were deprived, he had sustained special damage rjv reason of the loss of customers, who formerlj* came from the railway station into the street and were now ])revented from doing so, and that thus the value of his houses for the purpose of the particular trades carried on in them was depreciated. liut it is to ho observed that there was no authorized road from the railway station to this street, and the people who came into it from the stati(m did so in an irregular manner, and by j)assing over the lines and works of the railway, in contravention of the by-laws of the Company. This source of ])rotit was obviously of a ]trecari()U8 kind, and cannot be regardeart of the city can be reached, and which whilst only a little further, is probably more commoilious, being less liable to obstruc- tions from the operations of the railway. The gravamen of the damage, as proved, was the loss of the custom of the railway passen- CORPORATION (.Municipal) BIOHT TO CLOSE aTRCETM. ger« already adverted to. No doubt Ihe distinctions on the cases on this sultject are fine. The English decisions (which are only referred to by way of illustration) as well as the French have been conflict- ing, and the boundary lines between them are in consequence sonio- wnat indistinct, (See Metroi^litan Board of Works v. McCarthy, L. R. 7 H, L. 213; Becket v. Midland Railway Company, L. R., 3 C. P. 97.) One ground of damage complained of is due not to tho discon- tinuance of the street, but to the manner of closing it. It is said the barrier which has been erected darkens the plaintiffs houses. It may bo that the plaintiff has some grouna of complaint on this head, but he has not alleged in his declaration that the windows of his houses have been deprived of light, but only that the street has been darkened ; nor does the evidence distinctly show a deprivation of light to an actionable degree, nor is such a deprivation found as a fact by the experts or the Judges. The great contest in the cause has been as to the dammage arising fi'>m the suppression of the street, and not that due to the form of the barrier. Throughout Mr. Justice Taschereau's judgment, in which that learned judge ably supports his own view, there is no allusion to loss of light as a sub- stantive grif vance. If, however, this or other damage has boon occasioned b}- the proximity of the barrier it would be recoverable, if at all, under the Corporation statutes. The amount of damage assessed in ;he action is, in the main, given in respect of loss of custom and the consequent depreciation in the value of the houses. T' > other questions argued turned upon the special Statutes re- lating to the Corporation. It was contemled that these Acts excluded an action for indemnity, and gave no compensation in cases like the present. For the plaintiff it was denied that the action was thus excluded, but it was said that, if taken uway, compensation wjuj given. Upon the English legislation on these subjects, it is clearly established that a Statute which authorizes works makes their exe- cution lawfid, and takes away the rights of action which would have arisen if they had been executed without such authorit}- Suiiutes of this kind usually provide compensation and some jjrocedure for assessing it ; but it is a well understood rule in England that though the action is taken away, compensation is only roecverable when )ri)vided by the Statutes and in the manner jirescribtd by them, n practice it is generally provided in rcsijoct of all acts by which lands ai-o " injuriously affected " — words which have been held by judicial interpretation of the highest authority to embrace only such damage as would have been actionable, if the work causing it had boon executed without statutable authority. In the Canadian Act (23 Vict., c. 72, authorizing the by-law in question, no comi)ensation is expressly provided for the damage which may be caused by any of the acts it authorizes to be done. But in a previous Act (14 and 15 Vict., c. 128), provision for com- pensation is expressly made in two instances. Thus, the power to make by-laws tor altering the footpaths or side-walks of any street is couterred subject to the provision " that the Council shall make E 270 ('(JHI'OKATION (Mr.NiciPAi,) Mr: RIHHT TO <-M»liall In- iiiiiirioii>ly utU'rti'il I'V any such alti-ralioaof tlu- lnvol of tlic footpath ill front tlRTi'of." Ainl the powiT to mako hy-hiws for ihaiiifiiifi Ihi' siti-* of iiiarki'l^^ ami appfopriatiii;; the .silos, savi's to any |>arly iij^i^rii'voil '' any ri'iiu-ily In- may hy law liavi' a^^aiiist till' corporation for imy ilaniiiiit' hi- niif^jht thiTi'liy sustain." Till' Coiinsi'l for till' corporation ri'fcrrt'tl to two o.- iiufo other instanci'M of express provi>ioiis in foriner ai'ts relating to this cor- poration, anil iilso to sets of acts authorizing roatis, hriilges, ami other piihlic works, which proviileil compensation in express terms, uiid contentleil that it might Ik- inferred from this course of legislation that the intention was to exchulo compensation, whoiiover it was not expressly given. On the other hand, the counsel lor the pluintitt' relii-^l on the fact thai no comjiensatioii was |)rovided liy the act authorizing the Itye- law in (iiiestion, although the power it conferred would, it was saiil. Justity an interference with jiroperty, and with undoulili>d servitudes, and also upon the ditterenco hetween Knglish and French law, arising from the existence of the anicle of the ('imIc. and the dissimilar systems ot procedure in the two countries. Their contention, in sul>- stance, was that the special acts should he read as suliject to article 40" of the Code in tlu cases to which it was applicalile, and also to the general law which gave in certain cases at least, a right to in- demnity for danuige. Whatever may liave heoii the effect of the special Acts rolating to this corporation before the passing of the 27 and 28 Vict., c. GO, tliey must now be read and considered with it. The Act is indeed Statute upon expropriations. After reciting in the preamble thi.. ..inch difficulty was often experienced in carrying out the law in force relating to cxpropriiitions for purposes of jmblic utilitj', it establishes a tribunal consisting of commissioners for determining the value of property exproi;;'iated, and a system of procedure for such ciises. Then the 18tn section cruets that these provisions shall Iw extended to all cjvsos in which it becomes necessary to ascertain tho com- pensation to be paid for any damage sustained by rejwon of any alteration in the leve! of footways made by the Council or by reason of the removal of any establishment subject to Ik( removal under any bydaw of tho Council, •' or to any party by reason of any other act of tho Council, /(>/• whicli they are hound h/ miike loinfuiisation." It was contended for the corporation that this general clause re- ferred only to such coiniKiiisation as was expressly mentioned in their Statutes, though they could only point to two instances of such com- |K>nsation which could satisfy the words, and these were contained in a Koad Act. QUi tJeo. 111. c. 9), the jiowors of which were trans- forreil t.) the corporation. Whilst, for the plaintiff, it was said that if it 1)0 held that actions for indemnity are taken away, this sweeping clause ought to bo construed so as to comprehend all cases of damage for which, by tho general law, indemnity would bo due, and as being, in effect, ocpiivulcnt to the common clause in tho English Statutes containing the words " otherwise injuriously affected.' Keading tho clause in the latter sense, compensation would bo ex- C(^KI'OUATI()X (McNuii'AL) 271 «- OHT T4» CXOMK MYKEKTH. j.rcBHly givon by it to nil who may sutler — to use tlio Kiigiihli jtlirasc — uc-tionublo (liiinagi.'. A provision to tliis otloct, if it Itonuulo, would no doubt bo cquitjiolo anil reasonable ; wlieroas, if it bo not made, the schenu' of (•oniitcnsation provid*^! by thcso acts woidd sci in to be defeetive. Their Lordships, however, i>al the <|ueslion thus raised ; — since, in whatever manner it may l>e determined, and wiiatever may liave ix'cn the case before the 18th section of the 2"ill» and 28th Vict., c. (»0, was passed, thoy think that this enactment, by requiring tiuit the compensation payable to any party " by reason of any act of the (Joimcil for which thev are bound to make compensation," shall be ascertained in the manner |>rescrilK'il by the Statute, excludes, by necessary implication, actions of indemnity tor damage in respect ot such acts. It is enough, therefore, to say that, in their view, the corporation, having acted within their jtowers, the plai..;itl's claim (if sustainable at all) is of u kind which would fall to !>e determined b}' the Commissioners under the sjiecial Act. It may be observed that the question of procedure in cases oi' this kind is not merely a technical one. This waspointetlout in the judg- ment of this Committc in t/onea v. The Stdmtead Railway Comjianj/. It is there said : " The claim for damages in an action in this form assumes that the acts in respect of which they arc claimed are un- lawful, whilst the claim for compensation under the llailway Acts supposes that the acts are righfullvtione under statutable authority ; and this distinction is one of substance, for it atl'ecls not only tlie nature of the proceedings, but the tribunal to wliich recourse should bo had." On the whole case, their Lnrd.,hip^ find themselves unable to concur in the judgment pronounced by the majority of the .ludges of the Court of (Queen's Hench, and they will humbly advise Her Majesty to reverse both judgments below, and to direct that the action be dismissed with costs. ('UMTS ATT4»II.\-EV At'TIXO IK HIH OW5( CAVHE. GuoY V. Bkown ' 165. By the old Freuch law prevailing in Lower Cttfwda, an attorney acting as such in his own cause is entitled under a judgment in his favour, " avec depens '' upon taxation of costs, to the same fees as are allowed by the tariff to attorneys in all ordinary cases. Sir Kuwari) Vauouan Williams, p. 330 : — The rule for deciding thisfiuestion, as it was said by LaFmtaine, ('. J., in Broivn y. Gmjy ', must bo furnished by reference to the French and to the Ki.glish law, because the then existing French law was dominant in Lower Canatla when it was conquered in 1759, and consequently that law 1 L. C. R., 1867 Dec. 15, IV Moore N. S. 315. 2 See action en dfnoneiulion de nonvel iritvre. 27-' COSTS ATTORNEY ACnaiO IST HM OWN CAVNE. c'iMitiiitioM to Ih) (lominunt thoru, Hubjoct to any ultoriitions which have k'on introduced by legislutivo uctrt, or othor compotent tiiitliority. It i» neccHHnry, therefore, to inquire wlmt the old Froncli law wuf. witii reference to thiw sultject. On liehalf of the uppeHiint several authoritioH were cited, the jirincipai of which are, " Ze Par/a(7 Profurt'ur" &i. 1705; Piijeau, F'rriirr, and Serjiillon. Tiieso are for the mowt part utated in the u|»pellant's cane, and referred to by Mr. Justice Taschereau in 11 Lower Canada I{eport«, pj). 484-485. And their Lordsliips are of opinion, in accordance with the o])inions of Mr. Justice .Meredith and Mr. Justice Tajichcreau,tliui the passages cited from these books constitute a preponderance of autliorities in tlie Frendi law for allowing fees to an attorney wlio ap]H>ars as such in his own case. Hut it was argued for the respondent, that the old French law \m>, at all events, Iwen displaced by modern authorities. It is cer- tainly true that although in the case which is the subject of ap]ieal, wiien in the Superior court of Quebec, Judge Tasrhereau adhere^^ a H|u>ciiil procuration from the parly to \m attornoy. as the Iniinilatioii ofthu procooilin;;, tliorc would iyo an absurilily in takintc sui'li a Hpoeial power of attornoy from aniaii toliimsclf; and furiliur, that till- i)roct'cHiinff by way of" distraction e.t dipens " would not Iw 1»ractii'ablo, Itocaurto tlio occasion lor it coulf' never arise. Mut tlioir iOrdsliip;; are constraine him. On this point tl eir Lordships concur with the view taken by Mr. Justice Meredith in Guyy v. Feryuson', wlmw the learned judge says: " It is undeniable that the a]>pellant is an attorney, and that he has perforniwl certain services in this cause for which, when jterformed by an attorney-, the tariff allows certain fees ; and 1 reullj- cannot see anything in the law or in I'euson, to prevent the aj)- pellunt, an attorney, from receiving tho fees usually incident to the services which he performed." But it is intimated in the judgment of LaFontaine, C. J., in Brown V. Ouyy, and assertoil in tho judgment of Mr. Justice Aylwin in tho present case, that the practice has been to disallow fees to attorneys conducting their own cases. And if this practice had boon shown to 1 II L. C. R. 412. 2 II L.C.R. -iis. 18 I#t 274 COSTS ATrORNET AVTINCt IN HIM OWJV CAVSE. bo uniform ami Umu OHtitbliHhod, it would curtainly liuvu gone far to prove that the oliT autlioritiuH were »<»t to bo roliod on. nut tlioro appoarii to bo Homo miHtako on thiH Kubjoct ; fur it in Haid by Mr. JiiHtico Meredith, in Gugy v. Fenjuaon ' : "The |)raotico in thiN country niay, I think, bo Maid to bo in favour of tho attorney. Tho protonotaryof (hoSuporior court, an officer of groat experience, informs uh that in tho time (»f Chief JuHtico Sowoll foes in hucH chsoh were not allowed; but that in tho time of Sir JamoH Stuart the practice was to allow them ; that tho hiHt mentioned practice has continued over nince; and he hiu given un a note of tour caHOd in which attorneyH a])|)earing in their own caMOd have boon alloweii their feon. Under thoHO circumstancoM I think it doubtful whether any change in the ]>ractico uh to thiH matter ought to be made, and that it a change were determined on, it ought to bo made ho as not to atlect pending cuuhoh." Whether the Court of Queen's Bench might lawfully alt'jr tho law under the statutory power conferred by the Consolidateu Sta'tutOM, c. 11, H. 15, to make and " ostabliuh such rules of practice as are requisite for regulating the duo conduct of the causes, matters, and business before tho said court," it is unnecessary to decide for tho court has in fact made no such rule, nor has the law been altered by any legislative act, or other competent authority. We, therefore, think it was the duty of tho judges of the court to administer the old French law, and that they could not alter it, or decline to apply it, on grounds of su])posed exiKjdiency, as they appear to have done in the judgment in the present case, and tho preceding cases on which that judgment was founded. For these reasons, their Lordships, will advise Her Majesty that it should be reversed. ii JDISCKETIONART WITH THE JVDICIAE. COMMITTEE. LiNDo V. Barrett ' 166. The costs upon a successful appeal, are discretionary with the Judicial Committee, they are allowed according to circumstances. 167. In a case of reversal, the Order in Council contained no direction as to costs. Upon petition by appellant for a supplementary Order allowing costs, the Judicial Committee refused to interfere. 168. To entitle an appellant to costs, application ought to be made at the hearing. The Bight Hon. T. Pemberton Leiuh, p. 4G2 : — Their Lordships will make no order upon this petition. The rule which has been referred to is merely a regulation describing the course of practice which is to form the guidance of the Lords of the Committee, in 1 L. R.418. 2 Jamaica, 1860 Feb. 7, IX Moore 466. COSTS 275 DIM'RETIOWAHT WITH THE JVDKIAI. «-«>M.1IITTKK. j^ivin^ or Musiiij^ nrntn. The ollV'ct of that riilo i», tlmt if tho judg- ment «)f the Court h»!low is reverse*!, the appellant in to have hm coHts, but then ho must unk for those eoHts ; and if ho does not usk for them, the Onler in CN)uneil is merely to reverHo. liulc I, Order in Council, 13th June 1853. ISI «A1»K or tOfcl-IHIOSI BV AtTIDKKT. .„ .. Thk •' Maui'esia ' lt>9. It is a mil' in the Admiralty Court in cases where u collisiou is iouud to be the result of inevitable accident, to make no order as to t^osts, unless it can be shown that the suit was brought unre»s«)nably and without sulKcient ftrinui facie grounds. The " U)ndon " I 13r. & L. H2. HKrtTKiTV roH S«c l'uA(-"ri("i: ; iixtkni verbis. IW DIMPITTKII WII.I.M. and AllMSTUOSd V. lIini.ESTON ' 170. The judgment of the court below granting proliate of a will was alHrmed, but the court below having <;on- demned the contestant to costs, this part of the judgment was reformed, as the circumstances of the case warranted the proceedings against the will, and the costs were ordered to be paid out of the estate. Pki.nsei' and Tiik Kast India Company v. |)ycbSo.mkke i*c au. ' 171. Thj Judicial Committee confirmed the judgment of the court below on a question of unsoundness of a testator's mind, but reversed so much of it as related to costs which were put at the »'harge of the appellants, and directed the appellants' costs below and upon appeal to be paid out of the estate, as they were of opinion, that the appellants, as executor and legatees in trust, did right in bring.!? .r the case before this court; it being under the circumstauci ti essential to the purposes of justice that the validity of the will and codicil should be submitted to judicial dei-ision. But as they had prosecuted the case and appealed separately, they were allowed only one set of costs between themselves. With respect to the respondents, they were to take each their own costs out of their share of the property. Dimes v, Dimes * 172. Where the circumstances of the case are so doubtful as to require that a will should be established by legal 1 Admiralty, 1872 Feb, 16, VllI Moore N. S.40!). 2 Canterbury, 1837 Dec. 13, I Moore 478. 3 Canterbury, 18'>6 April 16, X .Moore 232. 4 Canterbury, 185G June 21, X Moore 422. i 1 I 27ii COSTS ■ N D1.4l>l'TKn HILMI. I)roor, th<' party ol»i»'«!ting to the It'irality uiiofht not to be Buhjt'rted to costs for iiiHtituting Hinh an inquiry ; hut alter a full in(iuiry and after the will had been uainttvined in the court below, it was held that there was no suitioient ground to justify the appeal, and focits were decreed against the ai)pcllant. *'' NI'4'4'r.NNri'l. PARTY «'0»DrM5fED TO MaRTBI'M V, GODKUKY ' 17:^. The appellant although successful, was condemned to pay the respondent's costs of appeal, on the ground that it appeared from the common under»tan«liugof both i>arties on the subject, that if objections had been made in the court below the alteration demanded might have been obtiiined I'rom the court there. The appellant. th9refore, having had an oi)portunitv to a, together with the practice of receiving sums which are both illegal and unreasonable, ami which would have been forbidden if duly noticed. Such jiractice having been followed by one officer alter another, who .suceedeUh1 iiiK)n thu notion, und on the rvliiinre, thnt tho right wiiH uHtalilii4liuy thu nnuffv whidi hiin In-un iioiiiiIohixmI m, und ]irovaili!f a It'gal aulhiirity to rutruni-li twt*, if not legal ano juHlly chargtv al)K' with any corruiitiun or moral guilt. Ste v" I'kactick. COUUTS OF JUSTICE ji'DUMKNTN. See Intkknatiunal Law : eoUem verbo. jiRiNDicTioji. See Inteknatiunal Law, Juiiisuiction. POWI'.R TO «-HEATE In re TiiK LoHD ltiHiioi> ok Xatai, ' ITi). Courts of justit'o i-auuot be i-reated by any other povvtT than parliameut. Loitit OiiKLM8>'oHU, p. 152 : — It iH a HOttluetent tribunal. Sir William Kri.k, p. 10(J : — The cawos in which a verdict upon a charfi;e of felony has been held to bo a nullity, ""d a Venire de novo awarded have not been clussitied in the I)ige«tH ; there are eases of defect of jurisdiction in respect of time, jjluce, or person, cases of verdicts so insufficiently expressed or so ambifjuous that a judgment could not be founded thereon ; but we have not discovered any valid authority for holding a verdict of conviction or acquittal in a case of felony delivered by a competent jur}' before a competent tribunal in due form of law to be a nullity fcy reason of some conduct on the part of the jurj' which the Court considers unsatisfactory. The ATTt)BNEY General for New Soltii Wales v. Murphy ' 192. A Venire de novo vacating the judgment upon the verdict is substantially an attempt to grant a new trial, and is invalid, as there is no new trial in cases of felony. The only cases where a Venire de novo has been granted upon a charge of felony, have been cases of want of jurisdiction, or of impossibility to render a Sf ntence on account of the am- biguity of the verdict. The only recourse of the prisoner is by application to the Executive for the commutation of the sentence if the case allowed such a grace. Sir W. Krle, j). 001 : — Upon this appeal it ap])ears by the pro- ceedings returned to this court that the pri.MMier Murphy was tried for murder at a session of Oyer and Terminer and gaol delivery for tho month of Septemljer, before Mr. Justice Paucett, and was convicted and sentenced ; and all the proceedings as far as apjieured, were regular in due I'orm of law. Afterwards, an application on behalf of the prisoner upon an affidavit was made to the Sujiremo Court sitting in banco, in term, for a rule to show cause why a venire de novo should not issue for the trial of the said prisoner, and upon further affidavits, the said rule was made absolute, and therein it was also ordered that a suggestion should be made on the record to the effect that after the jury had been empannellcd, and before verdict, tho jurors were allowed during certain adjournments of the court for the night, by the officers of the sheriff having charge of them, to have access to and free perusal of certain newspapers containing re- ports of tho evidence from day to day ; and that the last mentioned that, by reason of the matters so suggested, was not according to law, but was irregular and void. This suggestion was followed by an entry, purporting to be an order tliat, for the cau.se aforesaid, tho judgment on the said verdict be vacated, and that the sheriff cause a jury anew to come. It further apjiears by the same proceedings above referred to that 1 New South Wales, 1870 July 17, XXI Law Times N. S. 598. 284 CRIMINAL LAW M ^ ;:i VEKIKK DE NOVO. the only aftitlavit givuig JiuHcial knowledge Jo the Supreme Court of the alleged irregularity in keeping the jurors was that of the attorney lor the prisoner, who de])osed '' that he was informed by one of the jurors who acted on the said trial, and he verily believed that after they had been empanelled to try the said ease, and during their con- finement at the hotel (where they were kept during adjournments), and before verdict, the jurors were alUtwed the free use of the news- papers of (ho da}' which contained reports of the aforesaid trial, us far as it had gone, in one of which newspapers the heading given was the " South Greek Murder Case." These are the proceedings in the courts below to which wo think it necessary to advert as relevant to this appeal. Upon the argument in this court the (lUestion has been whether the al)ove mentiojied order for vacating the judgment upon the verdict and for renire de novo in order for another trial was valid and their Lordshijts have come to the conclusion that the answer should bo in the negative, both on the ground which their Lordships relied upon in the case of Reij. v. Bertratul, 10 L. T. Rep. jV.S..lii2; L. Rej)., G P. C. 520, and also on the further ground stated 1k.'1ow. 1st. Their Lordships consider that the present case is in substance an attempt, by the exercise of a discretitm to grant a new trial on the ground thiit the conviction was considered to be un- satisfactory b}- reason of some irregularity in the conduct of the trial. In Bertrand's case the irregularity was, that the evidence of the witnesses was read to the jury from the notes of the evidence on a former trial. Here the irregularity was in so keeping the jury during the course of the trial, as that the jurymen may have had access to some newspapers during that time; but the law is clear that the discretional power vested in certain courts and cases to grant new trials does not extend to cases of felony. The law on this subject was declared by their Lordships in that case and we consider that the law so declared governs the present case. Kach of these cases falls within the rule that no jterson ought to be put in peril twice on the same charge. The apj)lication of the ruie is shown in detail hy Blackburn J., in R. v. Winsor, L. Rep. 1 Q. B.'dlW ; 14 L. T. Rep. N. S. 1!»5, who there states : " When the jury have l)een brought together and the jirisonor has been given in charge and the trial has commenced, the right course, if practicable, is that the jury should give their verdict convicting or acquitting the prisoner. When the jury have once found a verdict of conviction or acquittal, the matter has become res Judicata, and after that there can be no further trial." He further shows that a vejiire de novo on new indictment would be erroneous, and a new indictment on the same charge would be defeated by a plea of autrefois acquit or con- eict. These remarks relate to a verdict returned upon a good in- dictment for f'lony before a competent tribunal. Their Lordshijjs cite this str.icment of the law to show the finality of a verdict upon a charge of felony when the indictment is good, and the prisoner lias been given in charge to a jurj' in due form of law empanelled, chosen and sworn, and a verdict of conviction or acquittal has been returned. In the present case, if the i)risoner should have been tried and con- victed upon the venire de novo ordered to issue b}' the rule here ii'» CRIMIXAL LAW 285 :y» VEXIRE UE NOVO. n])poulo(l against, according to tho passage just cited, u judgment thereon would bo erroneous. Tlie cases in wiiicli a verdict upon a charge of felony has Ijeen held to bo a nullity and a venire de novo awariled have not been classitied in the Digeste ; there are cases of defect of jurisdiction in respect of time, place, or person, cases of verdic'8 so insufficiently expressed or so ambiguous that a judgment could not be founded thereon; but we have not discovered any valid authoritj- for holding a verdict of conviction or acquittal in a case of felony delivered by a competent jury before a ecjmpetont tribunal in due Ibrm of law to be a nullity by reason of some conduct on tho part of the jury which the court considers unsatisfactory. As to the two supposed exceptions to this rule against new trial in cases of felony, M. v. Scaife, Q. B. 238, was noticed in B. v. Bertrand, and the other case of R. v. Fowler and Johnson, 4 Barn, d- Aid., was ex- plained to be no decision in the course of the argument on this ajipeal. Secondly, the further grounds for sustaining tho jiresent ap])cal beyond those expressed in the judgment in Bertrand's case relate both to the form of the proceeding in the Supreme Court when exercising appellate jurisdiction under whicli the rule aj)- pealed against was granted, and also to the sufficiency of the evidence on which that court acted in granting tho rule. Their Lordships are not aware of any principle either of the law of England or of this colony by virtue whereof the Supreme court, sitting in banco in term, could take cognisance as a Court of appeal, of the juflgment pronounced by Faucett, J., at the session of Oyer and Terminer, which had come to an end before the session in banco began; and although the relation of the courts to each other in res- pect of api)ellate jurisdiction has not been ascertained by us with precision, still, wliatever bo that relation, we find no form of pro- ceeding analogous to that which is required by the common law in Eroceodings when the aid of a court of error or ai)peal is invoked, ut tho form is tha form adapted to an application to the discretion of tne court for a new trial. Then as to the sufficiency of the evidence of tho facts on which tho court acted in granting the rule appealed against, their Lordships do not tind any strictly legal evidence of any fact, they timl nothing beyond an affidavit of mere hearsay inform- ation obtained from a person who had been on the jury, but was then discharged ; and this information, showed jjossible access to newspapers, without showing that they contained matter which tended to influence the jury improperly, or that the jury overdid, as a matter of fact read the newspapers. There is also the further ob- jection that the supposed informant had been one of the jurymen, and the courts have at times exprest^ed a reluctance which we con- sider salutarj' against receiving the separate statements of any of tho individuals who had in combination formed a jury, in order to impeach the verdict. The whole of the proceedings in the Supreme court are referred to the Judicial Committee, and as their Lordships consider that the rule w'si for a new trial, and the rule absolute founded thereon, were each granted on insufficient grounds, both rules fail to produce any effect, and the conviction stands unim- peached thereby. We do not examine the authorities cited for tho m^ lii r 1*1 ;i} ill 28f5 CItlMlNAL LAW VKMIRK DK MOVO. rt'spondi'iit hecausc none of them appciir to us to sanction the notion that tt vonlict, even in a civil case, could be sot aside unon an imaf^ination of some wron^ without any proof of reality. The sug- gostions upon which verdicts have been so set aside in civil cases have alleged traversable facts, material and relevant, to show that the verdict had ncluully resulted from improi>er influence, and refer to the sjK'cial verdict reported in 11 JI. 4, f. 17, as att'ording an example of such facts as would, il stated in a suggestion on tho record, have had the ettect of sotting aside the verdict. The case \, thelVar Bonk, 11 H., 4, f 17, we translate as follows : " The plaintiff in an assize had delivered an escrowment (writing to be used in case of need) to juryman on the pannell for evidence of his matter; and after the same juror, with others, had been sworn, and put into a house to agree i>a their verdict, ho showed the writing to his com- panions, and the ofticer who kept the inquest showed this matter to the court, through which the justices took the writing from the jurors, and took their verdict; and by the examining ("jjerl'appo- sail") of the jurors the time of the delivery of the writing was in- quired into, and it was found (i.e., by the jurors) as above stated ; and as the verdict was for the plaintitt", now he prayed judgment. Gasi'oitjne and Hull said that the jury, after that they were sworn, ought not to see or carry with them any evidence, except that which was delivered to them bj' the court, and by the party put in court as the evidence shown ; and inasmuch as they did the contrary, the plaintiff ought not to have judgment." This case, with the words of Gascoigne and Hull, has been frequently referred to in abridgments and treatises by Brooke, Rolle, Hale, Viner, and others; but the fenoral words of those judges, as well as ot judges in general, are to limited in some degree by reference to the facts of the case in respect of which they were spoken, and the issue of this case is not altered by transcription. Wo take one reference to this case, as an example, from Bro. Ab. '" Gen. Issue," p. 85, thus : — " After stating that an inquest must not take evidence privily, he adds: " Et par Gascoiyne et Hull ils preignent escrows extra curiam et passent pur le plaintiff, si ceo appiert sur examination par le court, ceo est cause dar- reter lejugment." (11 II. 4, 17.) So that the result of the examina- tion, viz., that the verdict was not " according to the evidence," but ujjon evidence taken out of court from one party without the assent of the other appeared by the rinding of the jury, and was upon the record, as Brooke imdcrstands the case, or the judgment could not have been arrested. The special verdict here reported, may be contrasted with the suggestion in the present case. In the case 11 II. 4, 17, the court which had jurisdiction both to try the suit and to arrest the judg- ment ascertained the fact of the misconduct of the plaintiff by examining the jurors, while acting as jurors, and by their verdict. Judicial knowledge from this source is in contrast with the affidavit above described. Also the interest of a plaintiff as a parly may be contrasted with the supposed interest of the Queen referred to in the judgment of the Chief justice in the court below in an indict- ment in which, although it runs in her name, she has no interest CRIMINAL LAW 287 ymmmi. de noto. Ijcyond that of truth and nt;ht. Neither in tlie sheritl' her agt. Cas. 795. Farnell v. Bowman ' 195. Under the statute 39 Vict., No. 38, the government of New South Wales may be sued in au action of damages, when their servants have destroyed grass, trees and fences belonging to a citizen. CROWN LANDS CERTIFICATE. Winter v. Attorney General of Victoria ' 196. Three appeals were heard together on the construc- tion of the Land Act of 1809. The point decided is that the government has the right to demand from a lessee occupy- ing public lands, before giving him a grant of his allotment, a ctutificate from the Board of Land and Works that he has fulfilled all the conditions of his lease, only when the lessee has incurred any penalty. forfeiture. Attorney General op Victoria v. Ettershank * 197. There is relief in a Court of Equity against forfei- ture, by non payment of rent, where the lessee continues in possession ; the remedy is for specific performance. 198. When a tenant has forfeited his lease of Crown lands by not paying his rent, the issuing of a subsequent lease to 1 Ceylon, 1884 April 7, L. R. IX Appeal Cases 571. 2 New South Wales, 1887 July 23rd, LVII Law Times N. S. 318 3 Victoria, 1875 J';ne 22, L. R. VI P. C. ;!78. 4 Victoria, 1875 June 22, L. R. VI P. C. 354. CROWN LANDS rOHFtlTVRK. him or his representatives operates as a waiver of the pre- vious I'orleitures. l>AVExi>oKT V. The (^ieen ' 199. Under the several statutes regulating the occupation of piiblic lands in Queensland, the occupation is allowed on payment of a rental and under certain conditions, one of them being the cultivation of one-sixth of the land during the year. The appellant -who had rented a parcel of land for eight years had not complied with this condition ; howtsvcr, the government rei-eived the rent during eight years, knowing that he had not cultivated the land as covenaiiled, and with- out any other protest than a notification which appeared in the iiitzeUe, two years before stating that, in siK^h cases, " the rent would be received conditioiuilly and withoiit prejudice to the right of the government." The lease having been de- clared forfeited in the court below, the Judicial Committee reversed the judgment and ht^ld that although the lease might have been voidable, the forfeiture was waived by the receipt of the rent ; the protest was held not suihcient. Smitu v. The Queen '' 200. "When the law concerning Crown lands requires that " all questions shall be decided by the Commissioner, who shall give his decision in open court "' as in the Croirn La/idn alienation Act of 1868 (31 Vict. No 40), the provision applies as Avell to forfeiture as to grant, and the commis- sioner is obliged to produce in open court the evidence upon which tlxe forfeiture is pronounced. Fcr Curiam, p. 2;J5 : — Their Lordships arc of opinion that the inquiry .to i)c made by the commissii^nors under sect. 51, suh sect. 5, is in the nature of a Judicial inquiry. Thuy do not dewiro to bo under- stood as laying it down that the commissioner, in conducting such an imiuiry, is bound by technical rules rclatin!; to the admission of evidence, or by an}' form of procedure, provided the inquiry is con- ducted according to (ho requiroments of sub.stantial justice. Those requirements are well known to our law, anil have been enunciated in man}' cases bearing some resemblance to, though not identical with the present. Where a statute enabled a bishop, if it should appear to his satisfaction, either of his own knowledge, or upon proof by affidavit, that (for various causes) the ecclesiastical duties of a benetice were negligently performed, to require the vicar to nominate a stipendiary curate id the bishop made a requisition to 1 Queensland, 1877 Dec. 10, L. R. Ill Appeal Cases 115. 2 Queensland, 1878 March 12, XXXVIII Law Times N. S. 233. 19 2{M) rifowx i,AXl)s m ;l • I I i rOHI'KITI'HK. thix itltti nil tlic viriir IuiiimIcmI on lii« own knowk'ilp', without li"iiriii^' llic vicar, the Coiiri ot'Cniiinioii I'lfiin licid llio ri'iiiii-ilion luni. Jionl Jjiiiilhimt, in u'iviiij; Jiulirini'iil, iIuih i'X|irt'HM'> Iiiiiini-U': • I>o(s not this (the ^tallll^•) iiuiiori imiiiiry, tiiid a Jiid^nu'iit an lh«' rl•^lllt ol'tliut iii(|iiir_v ? Ilv i^ to torin hi-* Jiulynn'iit ; it i» to a)p]>c'«r to him tVoin alliihivil laid lud'orc liim ; hut is it iioMHihh- to he said tiiat it is to a|i|i('ar to liiiii. and that lie in to i'orin his jiid^'nit'iit tioin allidavits laid hctoir him on thf one sidi-, witlioiit hrarinjr tlic othiT jpjirly iiL^ainst whom the cliafjit- ot iifulii^oiic*' is iirct'iTivd. whicli is to alU'ct him in his cliaraclcr and Ids property? that ho is to t-omi' to tliat coiicliision without ^iiviiij; the party an o]iportunily of mei'tiiif: till' nflidavits hv cont rary atlidavits, and without hcing lieard in his own dctenco '! " Jldi/lti/. ./., in the course of Ids Judjinieiit, also oh.served : " Is it not a common luincipie in every ease which has in itself the character of a judicial ]»roceeding, that tho party af,'ainst wliom the judgment is to ojieiate siiall have an opt orfunitv of lieiiii; heard? " (Capel v. ry,//,/ 2 ( "r. \ .ler. "jSHj. Tlie same view of the law was expressed hy 7v"/i/ ^V/;/(yi'iii<"il>lo« of iiutunil ju^liff. TIii' com- iiiiHuioiuT (l(nil)lU'>'S iicU'il with luTtWl j^imhI lliitli, Iml nitpart'iitly wilhiiut lu'iiiu; aware that lie wa^ |ioi'ti>i'iiiiii^ a jiulirial t'liiiction, or fvcii a t'liiK-linti ot'a Jialicial iiatuiv. He lia> not >tali'cl upon what ovidi'iii'f hf t'ornu'il hin opinion, wlii-thor written or rird rore. noitlior iliri'fl or hearnay. llo reiusii'M to t'lirniMli tho M)licilor of lht,« di'- fendaiit witli any nolo or nu-nioranthnu of that ovidt'nce, to give him any inl'ornialion •'* to who the witnesses aj^ainst his eiient woro nr even wiiat was tia- general character of tiieir evidence. The defendant ciiiild not answer or exjilain tt'stinioiiy nf wliich lie was ivept in ignorance, and tlierefore was not heard in his tU'feiice in any proper sense >>*' iluit term. Jl is time that he was suninnuu'd to answer general charges of non-evidonce anil aljandonment, Injt a summons lo answer charges, the evidence in support of which is withheld, appears to (heir Lordships illiisor^'. Their Lordships arc for these reason.-- of opinion that the Crown failed lo estahlish that liiere was such a hearing in this case as would enable the Crown to assert that it was proved to tho satisfaction of the commissioner within the meaning of the Act that tho defendant had abandoned his selection, or had failed in regard to the performance of tho con- MIWORN. O'Shanas.-v v. .IoACIILM ' 201. When a statute allow the j^'overnor to make grant of public lands to " any person," it does tiot necessarily exclude minors. Einenj v. Bardtuj, 8 S. C. liep. '6~A ; Drinkivuter v. Arthur, 10 S. C. Rep. 11»3 were overruled. I9(l»I.i:V l.4.\'D8. verbis. See LEiilSLATUllK : legislative jiowers \ iiadem i.oc-ATio.\ 'tivKET. See Injunction : /lossession of Crown lands. .m.XEK'N HIUHTN. IIoI.I.VMA.V V. NooNAX " 202. Under the Gold Fields Act of 1866, the holder of a miner's right must, diiring the continuance of such right, be deemed to be the owner of the claim occupied by him, and all gold in and upon such claim must be deemed to be the absolute property of siich owner. 203. Under the regulations of 1866, an ordinary quartz claim did not vest in the holder the right to all gold or quartz beneath the surface area of the claim. 1 Xew South Wales, 1870 Feb. 5. L. R. I Appeal Cases 82. 2 Queenslaiui, 1870 April 7, L. li. I Appeal Cases 305. mgrn 202 CROWX LANDS 4»nNTKr<'TION BY THE l'R4»WX. Attorney CrENEii^vi, ok the Straits Settlements v. Wemyss ' 204. The respoudeut was the lessee of a flat of laud acquired by grant from the Crown. The land was bounded bj' the sea. The government executed some works upon the foreshore in front of it. Hence, the action in damages against the government by Petition of right for $40,000. The judgment of the court beloAV granting |35,000 was confirmed. Lyon v. Fishmongers' Compani/, 1 App. Cas. 602 ; Farrell v. Bmoman, 12 App. Cas. 643, 647. poHSEMNiox OF See In.i UNCTION : eodem verba. pri'.cioitn .hetaln. Ballacorkisii Silver, Lead and Copper Co. v. ]Lvrris!4AK,E OF LAXD.H FORFEITED. BliACKBURN \\ Fl.*VELLE * 216. By the Crown landa alienation Act, 1861, the govern- ment of New South Wales is authorized to dispose of Crown lands by public auction only. Under this statute, the land forfeited cannot be privately re-sold to the original pur- chaser. Sir Barnes Peacock, p. ti34 : — .Mr. Justice Faucett in liis judg- ment in this case quotes the following passage from Mr. Justice Hargrave in Brinkwater v. Arthur (10 S. C. N. S. W. 193) : " If there be an\' one rule of law clearer than another as to the construction of all statutes and all written instruments (as, for example, sales under powers in deeds and wills) it is this : that when the legislature or the parties to any instrument have expressly authorized one or more particular modes of sales or other dealing with property, such ex- pressions always exclude any other mode, except as specitically authorized." That appears to their Lordship to bo a correct exposi- tion of the law, and it is substantially carrying out a principle similar to that expressed in the maxim cxpressio unius est exclusio alterius. 1 Nova Scotia, 1883 June 30, L. R. VIII Appeal Cases 568. 2 Western Australia, 1883 Nov. 24, L. R. IX Appeal Cases U2. 3 New South Wales, 1889 April 3, L. R. XIV Appeal Oases 28G. 4 New South Wales, 1881 May 20, L. R. VI Appeal Cases 628. — ~— CEOWN LANDS 295 servitude. The Divisional Council of the Cape Division v. De Villieks ' 217. The respoudeut held his laud from the Crown, by a graut of perpetual quit-reut tenure. It was decided that such a tenure is subject to servitude in favour of the Crown, giving this latter the right to take away gravel ou the land for the repair of public roads, without any com- pensation, unless the gravel is ixsed by the proprietor to improve cultivation, irrigation or otherwise. TITLE TO Barton v. Muir ^ 218. The respondent, acting as trustee for the appellant, and with the moneys of the latter, purchased Crown lands under the provisions of the Neiv Sout/i Wales Crown Lands Alenation Act, 1861, and bound himself by a written agree- ment to fulfil the statutory conditions of purchase for the appellant. Held, that such an agreement Avas not immoral or against public policy, and was not contrary to the terms of said act requiring the fulfilment of certain conditions by the pur- chaser. The respondent was the purchaser, and the res- pondent's right AVas merely that of a cestui que trust. Webb v. AVrioiit ' 219. The laws in this colony gives to those who have obtained a judgment in the land court, the right to demand and receive a title from the Governor and under the seal of the province. The Crown, where such judgment has been obtained, has no right to give a conditional title inckxding, namely, a clause reserving to the government its right to all precious stones, gold or silver found in the said laud. transfer of Colonial Secretary of Natal v. Behren.s * 220. Where a grant is made with a clause of reservation of certain land for public purposes in case of need, the government cannot demand a transfer from the owners, in execution of this clause, except Avheu the statute provides for compensation ; the duty of the owner to transfer is not imperative, but optional, and if he refuses, the govern- ment's remedy is the special procedure provided by the statute of 1872. 1 Ciipe of Good Hope, 18Y7 April 28, L. R. II Appeal Cases 567. 2 Xew South Wales, 1874 Nov. 14, L. R. VI P. 0. 134. 3 Giiqualand West, 1883 April 4, L. R. VIII Appeal CasesSlS. 4 Natiil, 1889 .May 28, L. R. XIV Appeal Cases 331. ^^ffl 29G CROWX LAXDS rWDEK MCENSE. The Queen v. Dai.limore ' 221. The respondent had been occupying pixblic lauds for pastoral purposes during many years under annual licenses. In 18G2, he obtained from the governor a license, for valuable consideration, to occupy part of these lands for one year and no longer, subject to the right of the Crown determined by colonial statutes. In construing the statute 24 Vict, and the license, the Judicial Committee held, that the Crown had an indefeasible title to the lands and might sell them, and that the licenses obtained by the respondent did not constitute a tenancy from year to year. As soon as the respondent assented to become tenant of the diminished area only, all title to the land in question ceased, both at law and equity, and he became merely tenant at suiferance of it Osborne v. Morgan '^ 222. The right to interfere with the possession of a tenant under a formal lease, independently of the lessor, and in derogation of his rights, is not one of the natural incidents of a mere license, which carries no legal or equitable interest in the soil, and the lessor only can bring a suit to set aside a lease not void, but voidable. Same decision in Williams V. Morgan, L. R. XIII Appeal Cases 238. CURATORSHIP See Minority, Substitution, Tutorship. CURfi See Fabrique. CURRENCY TAIiVE OF Macrae v. Goodman ' 223. In a deed the term " current money of Holland " com- bined with the fact that Amsterdam was the place of pay- ment, must be held to mean money of Dutch currency, and not of colonial currency. The deed was a sale made in London of a plantation in British Gruiana. See International law : eodem i-erbo. CUSTOMS forfeititbe. Graham v. Pocock * 224. According to the Customs ordinances of the Cape of Good Hope, goods passed under false entries are forfeited, 1 Victoria, 1865 Dec. 7, III Moore 347. 2 Queensland, 1888 Feb. 4, L. R. XIII Appeal Cases 227. 3 British Guiana, 1846 May 14, V Moore 315. 4 Cape of Good Hope, 1879 July 22, VII Moore N. S. 162. CUSTOMS 297 FORFEITURE. without proof of any Iraudulcut intention. But whou an entry is true with regard one (.lass of goods and lalse for another, the forfeiture applies only to the false entry. Phixce v. Gaoniix ' 225. By the Customs regulations of 1845, in New South Wales, every package that v. \ o landed must be included in the bill of entry, and, although a bill of entry may contain more than one "entry" within the moaning of the act, no entry can cover less than one entire package. An entry was made of soft goods with the required de- claration in verification, but no mention was made of porte- manteaux and hats which were packed in cases with the other goods. The whole of the soft goods, hats and porte- manteaux were seized by the custom-house officer, and for- feited. The forfeitxTre w^as maintained by the Privy Council, upon the same principles as the case of Grahavi v. Pocock in which the circumstances were the converse of those in the present case. 1 \ew South Wales, 1S73 Dec. 3, L. R. V P. C. 1. ; > : iln w t '^^ D SUMMARY PARES DAMAGES Against judges. See Judoe : res- ponsibi/iti/. AtTEnATION OF STREET 290 Breach of contract 299 By COLLISION. iVe Collision : i-ar- lies in fault. damaciearle statements 304 Dangers of the sea 304 Demurrace. See Affreightment : damage!! for delay in shippini/. Detentionof goods 305 Exercise of legal right 305 For adultery 30ij Fright nervous shock, mental INJURY 307 Illegal arrest ''iT Illegal seizure 308 Measure of 310 Negligence 313 non delivery in sales 313 Responsirility of Railway Com- pany. Sue Railway ; iisdeni verbis. See also Petitions of right. DEBENTURES See Hypothec: Construction of de- 'jentures. DELIVERY. ■S?e Damages, Gift, Sale. DEMURRAGE •' ■ Affreightment : damages for .elay in shipping. DEPOSIT Restoration of 314 PAGES DISCHARGE See Creditors, Composition, In- SOLVENCY, Suretyship. DISTRIBUTION See Partition, Insolvency. DIVORCE Grounds for 315 DOL See Contract, Evidence, Fbaud. DOMICILE Of ENGLISH OFFICER 315 Marriage in the Province of Que- REC 316 Onus probandi. See Evidence : iisdem verbis. What constitute domicile 319 DONATION See Gift. DO\S MANUELS See Evidence. DRAFT See Bill op exchange. DROIT D'AUBAINE Aliens 324 DUTY See Customs, Will: succession duty. DAMAGES 315 315 3ia 319 324 AOAixsT ji'DOEN. See Judge : responsibililij. ALTEUATIOX OF HTREET. MoRissoN V, AIayor, Aldermen and Citizens of Montreal ' 1. A muuicipal corporatiou is liable in damages to the adjoiuiug proprietors for the alteration of the level of public streets. -See the remarks of their Lordships : Expropriation : valuation, same cause. BREACH OF C'OXTRACT. BOSWELL V. KiLBORN 2. lu au action of damages for breach of contract, the proper measure of damages is the diflerence between the contract price and the market price, at the time of the refusal to perform the contract. 3. A firm contracted for the sale and delivery of five tons of hops during each of the year 1855 to 185t, cash on delivery. In 1856, the vendor offered to deliver to the purchaser a quantity exceeding the five tons, and the purchaser having examined the hoi^s refused to accept it. Hence an action of damages on the part of the vendor for breach of contract. The action was first dismissed by the Superior coiirt, but the Court of Appeal reversed the judgment and ordered a performance of the contract. The Judicial Committee reversed this last judgment, and held that as the five tons of hops had never been separated from the bulk, and as there was no complete tender and delivery, the vendor could not sue for the price, but only to recover damages on an action for breach of contract. 4. It is not competent for a court, to convert au action of damages for breach of contract on the refvisal of vendee to accept the articles tendered to him, into a suit to enforce the performance of the contract, and to order that contract to be carried out by their judgment. 5. There is no material difference between the English law and the old French law with respect to the completion of a contract of sale. 1 Quebec, 1877 Dec. 10, L. R. Ill Appeal Cases 148. 2 Lower Canada, 1862 Feb. 7, XV Moore 309. I 300 DAMAGKS BRKACII OF «-0>ITRAt-r. EiiiHT JIdN. LriRD Chelmsford, p. ;^20 : — The Icnrnccl judge of the Superior Court trcatoil the iietioii ns oih' lirouglit to onforcc the yior- forniaiu'oof'llio contract liy com]U'lhii!j,Mhoilcl'ciiihiiit to take tlic liops ami to pay the price, and as tlie I'laintitlV did not liy tlieir declaration otier to deliver to the Detendanl the quantity- of hops in ])ursiiiincc of the agreement, and as the tenders allegetl in the declaration ^v'ero not followed hy a request that they might be judicially declared to have been good and valid, he dismisseil the action with costs, reserv- ing to the Plaintiffs the right of a))i)eal. This judgment, however, was reversed by the Court of Queen's Ik'uch, the Chief Justice dissenting from the reasons on whicli it was foundeil, aiid the other judges declining to enter into them, considering them as objections which the judge had no right to raise, the parties themselves having waived them. The Court, therefore, ])roceeded to pronounce its own Judgment, that the Defendant should, within fifteen days from the service upon him of a copy of the judgment. ]iav to the Plaintiffs the sum ot 5(J0/. cur- rency (being tlie contract price of the hops), with interest, and tiiat upon payment the Plaintiffs should give to the Defendant a delivery note upon the occupier of the store whei'c the hops were deposited for the delivery to the Defendant of five tons weight, to wit, fifty bales, of the hops which had been tendered and stored, and that upon default of payment within fifteen days, and upon leaving with the Prothonotary of the i .ourt the delivery order or du])licate, one for the Defendant and the other to remain of rec(jrd, execution shoidd issue against the Defendant. Kven if this judgment were properly adapted to the form of action chosen by the Plaintiffs, it would be open to great objection. By the contract, delivery is to preceile payment. By the judgment ))ayment is to be made, not merely before but without tiny delivery. The Defendant is adjudged to pay within fifteen days after service of a cop3' of the judgment ; if he does not, the Plaintiffs by jnorel}- depositing with the officer of the Court the delivery order in dupfi- catc, would be entitled to sue out e.Kecution. And supposing the Defendant should pay the money and obtain the delivery order, the Plaintiffs would have discharged themselves of every dutj- irajjosed upon them by the judgment, and yet the Defendant might l)e unable to obtain the hops in accordance with the contract in consequence of the store-keeper having a lien upon them, or by the loss or deterioration of the hops while they were at the risk of the vendor. But the Appellant contends that looking to the form of iiction, the judgment is one which it was not coraiiotent to the Court to pronounce. He says that the action is brought, not to compel the performance of the contract, but for damages for breach of the contract by the Defendant in not accejiting the hops, and that the proi^er measure of damages in such an action is the difference between the contract price and the market price, at the time of the refusal to perform the contract. If this question were to be decided by English law, there could be no doubt as to the extent of the Defendant's liability under the circumstances of the case. Where there is a sale b^- weight or measure, and (to use Lord Ellenborough's DAMAGES ;joi nHKACII OF (ONTBACT. language in IJush v. Davis, 2 M. and S. 403) " any acts aro to bo (lone to regulate the identity and individuality of tlio thing to bo delivered, it is not in u state tit for imnaodiato delivery ; " and no action for goods bargainetl and sold can be maintained to recover the price. The only remedy open to the vendor (if the circums- tances of the case give him a right to comj)lain of u breach of con- tract) is by an action for non-acceptance. The necessitj' of sepa- rating and distinguishing the article sold from a larger quantity in order to constitute a complete delivery cannot be more strongly exemplitied than in the case of Cunlitl'e and Harrison (G J"]xch. 903), which was cited in the course of the argument for the Appellant. But the llespondents contend tiiat whatever may be the law of England on this subject, the case is to be tried by the old French law, in which the principles to bo applied are ditl'erent ; and that 1)3" that law a vendor in some cases may recovtr the full price agreed upon, whore there has been no complete delirovy of the subject according to the terms of the contract. Their Lordships have been referred in su])port of this view to the Civil Law, and also to the writings of various Jurists, and particularly to the Treatise of Pothier, " Du Contrat do Vente,'' which contains all the learning upcni the subject. A very few passages from this Treatise will sliow that there is no material ditlerence between the English law and the old French hnv, with respect to the completion of contracts. Pothier, in his Treatise, partie iv. fol. 309, states, with his usual clearness when a contract is to be I'egardod as perfect, and when it is imper- fect. He saj-s : " Ordinaireraent le contrat do vente est cense avoir ro9U sa perlbction aussitot (jue les parties sont convenues du prix pour leipiel la chose serait vendue. Cette r^glo a lieu lorsque la vente est d'un corps certain, et qu'ello est pure et simple. Si la vente est de ces choses qui consistent in quautitate et qui ee vendent au poids, au nombre, ou it la mosure, comme si Ton a vendu dix minots do ble dc celui (pii est dans un tel greniei", dix milliers pesant de sucre, un cent de carpes, &c., la vente n'est point parfaito quo le bid n'ait (5t(5 mosure, le sucre pose, les carpes compt»5es, car jusqu'a ce temps nondum cqiparet quid venierit.'" So far the law is tolerably clear, but upcm the question whether when goods are sold by num- ber, weight, or measure, the projierty is transferred to the buyer immediately or only after the goods have been counted, weighed, or measured, there is some ditiereiico of opinion. Dalloz, in his •' Eepertoire de Lt'gislation de Doctrine et do Juris- ]u-udonce," titro "Vente," chapter 3, section 1, ranges the Jurists upon the opposite sides of the question, and suggests a distinction to reconcile the diiference between them. He puts a case where the seller says to the buyer, " I agree to sell you so raauj^ gallons of wine in a cellar at so much a gallon ; " here (ho says) is not only a sale by measure, but also a sale of an indeterminate thing, there- fore such a sale does not operate an immediate transfer of the pro- perty. And he adds, "' Tout le niondo est d'accord sur ce jjoint." But whore the vendor says. " I agree to sell you all the wine in this cellar at so much a gallon," hero the doubt arises. In this latter case the thing is ascertained, and it may be said there is no reason ! ! ! I ! ■ i i^ip yo2 DAMAGK.S \li\ m 1*1 ■ If IIKKACII OF CONTRACT. why the proiiorty Bhoukl not puns immoiliatcly to the huyor. But oven in isiieli ii case Dalioz states his o()neurrenee with the opinion ot'Troplong that until tiie measurement the wine remains at the risic of the seller. It is true (he says) the tiling is aHcertaitied, liut the price is not ; but the price is like the thing itself, an essential element of the sale, and the ascertainment of the ])rice is not lesH necessary than the identification of the thing to the completion of contract. Tlic delivery of the thing, and its being at the ri.sk of the buyer, apjtear to be convertible terms, and it seems clear from all the authorities that upon a sale by weight or measure, until the thing is ascertained by weighing or measuring, it remains at the risk of the seller. Pothier in the .same section (309), which has been already referred to, says, " It is only after measuring, &c., that the thing sold is at the risk of the buyer;" "car les ris(pies ne ])euvent tomber que sur fpielque chose de determine." It is ditticult to understand how the vendor can have any claim to receive the price of the thing C(jntracted for until he has separated it fur the use of the buyer. Until it is ascertained and identitied, it may be properly said to have no existence. Anil yet there is one short jiassage in Pothier, sec. 3UP, which is opposed to all his rea- soning in the same section upon which the ilespondents rely as establishing the propriety of the judgment in their favour. The l>assage is this: " Jl est vrai que des avant la mesure, le ])oids, le compte, et des I'mstant du coutrat, les engagements qui en naissent existent. L'acheteur a d^s lors action contro le vendeur, ]tour se faire livrer hi chose vendue, comme le vendeur a action pour le paie- rnent du fruit en ott'rant de le livrer." One may lairly ask, To deliver what? The contract does not give the thing existence; it dei)ends upon the vendor himself whether it shall ever exist. When there is a condition precedent to his right to the price unperformed by him, it is difficult to iniderstand how he can recover the price upon a mere otter to perform. The Chief Justice treats the present case as one where the vendor has executed his contract, and has done all that depends upon him to entitle him to an action ex vendito against the vendee, and lie goes on to eay that from the moment the vendor has oti'ered to deliver the thing sold, and has put the vendee in a position to receive it, the thing is at the risk of the vendee. But how was the vendee in a position to receive the hops in this case ? He could not go to the store and help himself out of the bulk to the proper quantity. And as to the hops being at the risk of the vendee, the Chief Justice is here directly opposed to the authority of Pothier, in the passage which has just been mentioned. It must always be borne in mind that, by the terms of the contract, the delivery in this case was to be made by the vendors, and therefore that un actual deb very by them, or acts done by them which were equivalent to a delivery, were a necessary preliminary to their being entitled to the price. This the Court appears to have overlooked, for in their judgment they say that " it was fully in the Appellants' i^ower to have set apart, distinguished and taken away tive tons weight of good and merchantable hops from among the said bales," thereby attributing DAMAGES 303 BREACH OF C'09rTRACT. to the Appellftnts the |>orlbnnance of acts wliii-h liy tlu- contnict lic'longod to the KcHpoiulontw. The jiulgmciit therotbro proceeds upon false grouml.-i. even if it was competent to the Court to give a ditlVrent iviml of rehef to that which the Plaintitfs churned in their deehiratiun. The I'iaintitt's -ht i'or general average contrilmtion, and upon cargo for damages, no has, under the Merchant Shipping Act, 1H»J2, sects. t!7. 08, fht! riu'ht to dischari;*! the cargo in a warehouse and to put ui)on it a stop order, hut, in so doing if the stop order is for an amount in excess of tlu; sum due, and if he refust?s to deliver the cargo to the consignee upon payment of the sum rightly due, he is liable in damages for illegal detention. EXEH<'INK OF I.F.UAI. HI»IIT KiMlKUS V. |)LTT ' 10. A legal and /iriimi facie innocent aet may become illegal and damageable if it invades the right of a third party, as for instance, where u neighl)our has acquired by twenty years enjoyment an easement of light over a property, and the owner of it liuilds a construction obstruiiting the view 60 acquired, the neighbour has an aitiou in damages. 11. An action is maintainable against an olHcial for an act done in the exercise of his duty, where malice and a tortious act are alleged and proved against him. 12. An order AVas issued by the superintendent of marine, in his oliicial capacity, prohibiting the pilots at his service from allowing a partii.-ular steam tug to take any ship in toAV because the charges of the steam tug were con- sidered exorbitant, and by this order sut;h owner was deprived for a time of the proiits of being employed by the pilots in charge of ships going iip or down the river. In the al)sence of malice, alleged or to be inferred, that order was held not to be such a wrong as would sustain an action liy the owner of the tug against the superintendent of marine, the officer of the government issuing such order. The government had the same rights as a private individual in declining to employ the tug if the charges were too high. The Right Hon. Dh. Llshinoton, p. 280 : — For if thoactwliicli ho did was in itself wrongful, as against the plaintift's, and produced damage to them, thoy must have the same remedy by action against thedoer,whethor the act was his own, spontaneous and imauthorized, or whether it was done by the order of the siqjorior power. The civil irresponsibility of the Supreme power for tortious acts could not be maintained witli any show of justice, if its agents were not personally responsible for them ; in such cases the government is 1 Ireland, 1375 April 24, 1.. R. VI P. C. 2 Calcutta, 1860 July 30, III Law Times N. S. 160, XIII Moore 209. 20 306 DAMAGES i m L ,1 EXERCISE OF LEOAI. RIUHT. morully bonncl to indemnify its agents, and it is hard on such agent when this obligation is not satisfied ; but the right to compensation in the party injured is pai-amour* to this consideration. Neither in the caso of damage occasioned by a wrongful act, that is, an act which tlie law esteems an injury, is malice a necessary ingredient to the maintenance of the action: an imprisonment of the person, a battery, a trespass on land, are instances, and only instances, in which the act may be quite innocent, even laudable, as to the in- tention of the doer, and yet, if any damage, even in 4egal contem- plation, be the consequence, an action will lie. But the foundation of every action of tort, apart from the question of malice, is an act wrongful, and which may be qualified legally as an injury. This jjosition is not contravened in the very able and learned judgment of the Court below, indeed, it is assumed as the principle of decision, and the wrongful act relied on is stated to be the invasion of " the right of the plaintiffs to employ their vessels in towage ; in other words, the right of exercising their lawful trade or calling, without undue hindrance or obstruction from others." No doubt an act which, primd facie, vronld appear to be innocent and rightful, may become tortious if it invades the right of a third person. A familiar instance is, the erection on one's own land of anything which obstructs the light of a neighbour's house, prima facie, it is lawful to erect what one pleases on one's own land ; out if by twenty years' enjoyment, the neighbour has acquired the right to the ur )bstructed transmission of the light across that land, the erection of any building which substantially obstructs it, is an invasion of the right, and so not only does damage, but is unlawful and injurious. FOK ADVETERY. Norton v. Spooner ' 13. A civil actiou for the recovery of damages agaiust a cle- ieudaut for crimiual couversatiou and adulterous couuec- tion had with the plaiutiffs wife lies by the Dutch law, Avhich is the old Eomau law as altered by local ordinances ; this redress being recognized throughout every part of the continent of Europe. The judgment of the court below re- jecting a demurrer to the action, affirmed by the J udicial Committee. The Lord Justice Knight Bruce, p. 127 : — It has been saiil, that throughout every part of the continent of Europe where, more or less, the civil hwY, in a state of less or greater deflection from its original condition, has prevailed, the action for damages against an adulterer is unknown. Their Lordships are not satisfied that the case is so. They believe that a full investigation would show that in one shape or another damages have beeu successfully sought iu vario'is instances upon the continent of Europe in such cases. Not 1 British Guinea, 1854 July 4, IX Moore 103. DAMAGES 307 t f .' FOR ADITIiTERT. IcHS than two instances ' have liecn produced from France, in which dama<^es were distinctly given to the husband; and their Lordships are otopinon that more might be found. rRIOHT, WERVOVS SHOCK, MGHTAL IXJVRV. VicToiiiAN Railways Commissioners v. Coultas ' 14. Where the gate-keeper of a railway compauy had uegligeutly invited the plaintiffs to drive over a lev-^el crossing when it was dangerous to do so, and the jiiry, although an actual collision Avith a train was avoided, nevertheless assessed damages for physical and mental in- juries occasioned by the fright, it was held that the verdict could not be sustained, and that judgment must be entered for the defendants. Sir iJiciiARi) Cofcu, p. 2:i5: — The rule of English law as to the damages which are recoverable for negligence, is stated by the master of the Rolls in The Mottiivj Hill,' a case of negligent col- lision. It is that the damages must be the natural and reasonable result of the defendant's act ; such a consequence as in the oi'dinary course of things would tlow from the act According to the evidence of the female plaintitt her fright was caused by seeing the train approaching, and thinking they were going to be killed. Damages existing from mere sudden terror un- accompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would How from the negligence of the gate-keeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability' has hitherto been hekl to be. Not only in such a case as the present, but in every case where an accident caused by negUgence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The ditflculty which now often exists in cases of alleged physical injuries of de- termining whether they were caused by the negligent act, would be greatly increased, and u wide tield opened for imaginary claims. ILLEGAL AHnF.MT. Sinclair v. Bbouohto.v and the Ctovernment op India * 15. The respondent Broughtou was a military officer in command of a cantonment. Believing the appellant to be a dangerous lunatic, he had him arrested and examined by a 1 Pcrrifcre, Jurisprudence dii Code, torn. II, liv. IX, litre IX, p. 450. 2 Victoria, 1888 Feb. 4, XIII L. K. Appeal Cases, 222. 3 9 P. D. 105. 4 Oude, 1882 June 23, XLVII Law Times N S. 171. 308 DAMAGES ILI.EOAI. ARREST. medical man, aud ou the report of the latter, he was dis- charged from arrest. In an action of damages against the commanding officer and the government, it was held, that the appellant was entitled to damages, as the officer had acted without authority, although in good faith. im.egai:. seizure. IIenos v. Aldersley, The " Kvangemmos " ' 16. A collision between two vessels at sea having taken place, one of them caused the other to be seized to answer an action in damages. After the action had been dismissed, the owners of the seized vessel entered an action against the plaintiff, but no damages were allowed, there being no evidence of bad faith or crassa negJigentia, which might im- ply malice. The Eight Hon. P. Pemberton Leigh, p. 359 : — Tl.e reul question in thii> case, following the principles with regard to actions of this deecription, comes to this : is there or is there not reason to aay that the action was so unwarrantablj- brought, or brought with so little colour, or so little foundation, that it rather implies malice on the part oi" the plaintiff, or that gross negligence w^iich is equivalent to it? ScHAciiT v. Otter, The " Osthee " '' 17. In an action praying for restitution of ship aud cargo with costs and damages again ,st captors, where the seizure was made without probable cause for a pretended breach of blockade ; it appeared that the ship arrested had by her conduct given rise to suspicious aud was partly to blame for her own detention. The action was dismissed. The Eight Hon. P. Pemberton Leigh, p. 1G5 : — The natural rule is, that if a party be unjustly deprived of his property, he ought to be put as nearly as possible in the same slate as he was before the depriva- tion took place ; techuicallj' speaking, he is entitled to restitution with costs and damages. This is the general rule upon the subject, but like all other general rules, it must be subject to moditicatiou. if, for instance, any circumstances appear which show that the suf- fering party has himself furnished occasion for the capture, if he has bj- his own conduct in some degree contributed to the loss, then ho is entitled to a somewhat less degree of compensation, to what is technically called simple restitution. The Adorns 2 Dod. 51, Doss v. Doss ' 18. When a man's domicile or dependencies are violated xiivder colour of legal process, he is not obliged to submit to 1 Admiialty, 1858 July 6, XII Moore 352. 2 Admirnlty, 1855 Feb. 23, IX Moore 150. 3 Agra, 18GG Mnrs 17, XIV Law Times N. S, 646. DAMAGES 309 II.LKOAI. SEIZ1TRE. this invasion, or to prevent the intruder from doing as little harm as possible as, for example, by removing the lock of his own warehouse to prevent it from being forced open ; and in case of such an invasion, he would be entitled to recover not only special damages demanded and proved, but exemplary damages, even in cases where he failed to prove the special damages. Sir E. AVilliams, p. 648: — If it be important, in India, to check any tendency to resist the execution of legal process, it is hardly less important to maintain the principle that they who misuse legal process are responsible for the consequences of that misuse. The principle ordinarily applied to actions of tort is, that the plaintiff is never precluded from recovering ordinary damages bj' reason of his failing to prove the special damage ho has laid, unless the special damage is the gist of the action. Thus in an action of slander for words actionable per se, when the plaintitf lays special damages, and fails to prove it, he is nevertheless entitled to such damages as the jury think right to give him. It would be otherwise if the words were not actionable jser se. WiL»-)N v. The Queen ' 19. Although damages may be obtained in the Court of Admiralty in the same cause in which the principal question is disposed of, a separate action for damages also lies where there is gross negligence or bad faith. Lord Justice Cairns, p. 314 : — Undoubtedly there may be cases in which there is either mala fides or that crassa netjUijentia which implies malice, which would justify a Court of admiralty giving damages, as in an action brought at common law damages may be obtained. In the Court of admiralty the proceedings are, however, more convenient, because in the action in which the main question is disposed of damages may be awarded. The real question in th'it case, following the principles laid down Avith regard to actions of this description, comes to this — is there, or is there not, reason to say that the action was so unwarrantably brought, or brought with so little colour, or so little foundation, that it rather implies mahce on the part of the ])Iaintiff, or that gross negligence which is equi- valent to it ? The Queen v. Cas.vca ' 20. The plaintiff, who had seized a ship, was condemned in costs and damages for illegal seizure, although there were on board articles which were those generally employed in the slave trade and which misled the plaintiiF in making 1 v. Admiralty of Sierra Leone, 1866 Dec. 11, IV Moore N. S. 307. 2 Sierra Leone, 1880 May 6, L. R. V. Appeal Cages 648. ij V 310 ILLKGAI. SEIZURE. DAMAGES the seizure. But other circumstauces and the ship's papers were sufficient to establish the true character of the ship, and its seizure could not be justified. 9IEANUKE OF McTiNK V. Bent 21. The respondent obtained an interdict restraining the appellant from selling any of the produce of the lands upon which he had a mortgage until his claim shoiild be fully satisfied. The interdict having been contested Avas set aside and the respondent condemned to indemnify the appellant lor all losses he had suffered in consequence. The appellant then brought an action to have his damages assessed, but this aetioii was dismissed, the court rejecting the claim in toto. The Judicial Committee reversed this decision, and leld that the appellant had suffered damages, as the first judgment of the ("otirt had recognized that they were due. The record was remitted to the court below to assess the damages. EOBERTSON V. DcMARESQ ^ 22. The principles upon which damages are given in any action of damages for breach of contract were exposed by the Judicial Committee as follows : Loud Chelmsford, p. O-l : — The only remaining questions relate to the damages But upon what ground can it be alleged that the judge was wrong in telling the jury to find their damages upon the present value of the land ? The cases which were cited as to the measure of damages upon contracts for delivery of goods and for the re-transfer of stock have verj- little application. The distinction between these two classes of cases is said to be that in the former the damages should be only the value of the goods at the time when they ought to have been delivered, because the purchaser has his money in hand, and ma}' go into the market anil purchase similar goods ; but as to stock, that the liorrower who neglects to re-transfer at the time agreed upon holds in his hands the money of the lender, and prevents him using it. The principle upon which damages arc estimated upon the breach of an agreement for the re-transfer of stock is more ajipHcable to the respondent's claim than that which is applied to contracts for tlie sale and delivery of goods, but the right of the respondent to the highest value of the land which he has not received in performance of the promise made to liim, seems to be even stronger than that of the lender of stock, upon the borrower's omission to replace it. The owner of the stock might have the means of purchasing other 1 British Guiiiiia, 1843 Feb. 18, IV Moore 213. •2 New South Wales, 1864 Feb. G, II Moore 60. DAMAGES 311 MEASURE OF similar stock at the day, but the allotment of land promised to the respondent was a thing which he could not obtain except by the performance of the promi o. If he had received his allotment as he ought to have done, he would have had it, with the benefit of the increased value which it might have acquired while in his posses- sion. Of this the other party has deprived him by the breach of his promise; and whether he has obtained the benefit himself, or has hindered the respondent from enjoying it, it seems to be equally just and reasonable that he should pay the full value of the property to the person from whom he has wrongfully withheld it. Larios v. BoNANr Y CtURETY ' 23. In an action for breach of agreement to pay a stim of money, when a merchant obliged himself for valuable consideration to open a credit in behalf of another, substan- tial damages, and not only the principal sum of money con- tracted to be paid and interest, may be recovered. (tram) Tri'nk Ky Co OK Canada v. Jenkins '^ 24. The right conferred by the Ontario laws (C. S. eh. 135, ss. 2 and 3) to recover damages in respect of death occasioned by wrongfvil act, neglect or default, is restricted to the actual pecuniary loss sustained by the plaintiff. 25. "When the deceased nad nothing and earned nothing, there is no loss, and, therefore, no claim ; when the deceased had an income derived from his labor and exertions, his widow and children may claim damages according to the reasonable probability of life, w^ork and earnings if the deceased had lived. 2(3. "Where the plaintiff is the widow, and her husband had made provision for her by a policy on his own life in her favour, the amount of such policy is not to be deducted from the amount of damages previously assessed irrespective of such consideration, as she is benefited only by the acceler- ated receipt of the amount of the policy, and that benefit being represented by the interest of the money during the period of acceleration, may be compensated by deducting- future premiums from the estimated future earnings of the deceased. 27. In such cases, all the circumstances which can have any bearing to increase or diminish the amount of the damages should go to the jury as matters of fact. Lord Watson, p. 803 : — In Beckett's case(^), as well as in the jjrcscnt, all the courts below have justly held that the right conferred 1 Gibraltar, 1873 May 3, L. R. V. P. C. 346. 2 Ontario, 1888 Aug. 4, L. R. XI [I Appeal Cases 800. 3 13 U. C. R. C. A. 174. 312 DAMAC4ES '' , .1 MEANt'RE OF by statute to recover damngcs in respect of death occasioned by- wrongful act, neglect nr default, is restricted to the actual pecuniary loss sustained I'v m nil ■• dividual entitled to sue. In some circum- stances, that Mvinci j'its of easy application ; but in others, the extent of loss doj •'. '■ .■' that his wife or children cannot be jjecuniary losers by his ■' 'feasi "i like manner, when Iry- his death the whole estate from wljich )io dprivrl his income passes to liLs widow, or to his child (as Avas (he ^•ase in Pyne v. Great Kortheni Jiaibcay ('), no statutorj' claim will lie at their instance. A verj- difierent case arises when the means of the deceased have been ex- clusively derived from his own exertions, whether physical or intel- lectual. It then becomes necessary to consider what, but for the accident which terminated his existence, would have been his reasonable prospects of life, work and remuneration; and also how far these, if realized, would have conduced to the benefit of the in- dividual claiming com])ensation. Their Lordships are of opinion that all circumstances which, though insufficient to exclude a statutory claim, may be legitimately pleaded in diminution of it, ought to be submitted tothe jmy, whose specia function it is to [issess da mag' the jjresiding judge as may l)e with such observations from suggested by the facts in evidence. It appears to their Lordshijjs that money provisions made by a luisband, for the maintenance of his widow, in whatever form, are matters pro^jer to be considered by the jury in estimating her loss ; but the extent, if any, to which tliese ought to be imputed if im- ])uted in I'cduction of damages must depenil upon the nature of the j.irovision and the jjosition and means of the deceased. When the deceased did not earn his own living, but had an annual income from property, one half of which has been settled upon his widow, a jury might reasonably come to the conclusion that, to the extent of thac half, the widow was not a loser by his death, and might contine their estimate of her loss to the interest which she might probably have had in the other half. Very ditterent considerations occur when the widow's provision takes the sliape of a policy on his own life, etlected and kept up by a man in the position of the deceased Wm. Jennings. The pecuniary benefit which accrued to the respondent from his premature death consisted in the accelerated receipt of a sum of money, the consideration for which had already been paid by him, out of his earnings. In such a case, the extent of the benefit maj- fairly be taken to be represented by the use as interest of the money during the period of acceleration ; and it was upon that footing that Lord Campbell, in Hicks v. Kemport, etc., Ry Co. Q), suggested to the juiy that, in estimating the widow's loss, the benefic which she derived from acceleration might be compensated by deducting from their estimate of the future earnings of the deceased the amount of 1 2B. &S. 757; S. C. 4 B. S. 396. 2 4B. & S. 403 n. DAMAGES 318 BIEASVRE OF the premiums which, if ho had lived, ho would have had to pay out of his earnings for the maintenance of the policy. See also Damages : breach of contract. ne01.igence. The Queen v. Williams ' 28. Au Executive government having the control and government of a tidal harbovir is bound by law to take reasonable care that vessels using the wharves should do so in the ordinary manner and without danger to others. 29. And when their servant, the harbour-master, has had notice of a dangerous spot, and no inquiry is made, no notice is given to vessels entering into the harbour and no means are taken to protect the vessels, the government is liable in damages, Lancaster Canal Company v. Parnady. 11 A. Sc E. 230 ; Merrey Docks Trustees v. Gibbs, Law Rep. 1 H. L. 93 ; Jolliffe v. Wallasey Local Board, Laio Rep. 9 C. P. 62. WON DELIVERY IS SALES. ilACLAREN V. MuRPIIY ' 30. This was an action for damages for non-performance of a contract for the sale of certain spars and timber, " to be delivered free of charge to-morrow, or as soon as they i"an be got out of the hands of the guardian ; but the purchasers not bound to take them if not delivered in one week unless they like." No delivery was made within the time specified, by reason of the guardian in possession of the spars in- sisting on retaining them in consequence of a writ of saisie- arr4t issued in au action instituted against the ostensible owner of them, notwithstanding that the gviardian was released by subsequent proceedings and might have legally given them up. The vendor was held not liable in damages, on the ground that the reasonable construction of the words getting " out of the hands of the guardian," was the actual, and not the constructive or legal title to the i^ossession, which could alone insure the delivery. Brown v. Dibbs ' 31. The respondent sold to appellant half of the New Lambtou Colliery, a coal mine in working operation, with all the machinery therein. The vendor delayed the delivery by a transfer of the mine and luean while made large profits in working it. The action was by the buyer for specific 1 New Zealand, 1884 April 9, L. R. IX Appeal Cases 418. 2 Quebec, 1872 June 5, IX Mooic N. S. 1. 3 New South Wales, 1877 Moy 4, XXXVII Law Times N. S. 171. p 314 9rO\ DEMVERV IS SALEH. DAMAGES perlbrmauce aud for au account of profits made since the contract of sale. The court of Equity gave judgment for Plaintiff, and the Judicial Committee, confirming this judgment, held : that the claim of the Plaintiff was the market value per ton of the coal in situ nalurali, calculating that value upon what the coal woxild sell for, deducting therefrom the expense, not only of carrying it to the market, but of severing it so as to make it a chattel. Martin v. P aster y 5 31. iV W. 351 ; Jegon v. Vivian, L. Rep. 6 ch. 742. RE8POXUBIMTY OF HAiLWAiT TOMPAXY. See RAILWAY : Hsdem verbis. See also Petition of Right. DEBENTURES See Hypothec : cnnstructinn of debentures. DELIVERY See Damages, Gift, Sale. DEMURRAGE See Affreightment : damages for delay in shipping. DEPOSIT RESTOBATIOSr OF Dines v. Wolfe ' 32. An agreement was made between two parties, and a stake deposited into the hands of respondent, to abide a match between two horses at a horse-race agreed to be run under the Australian Jockey Club rules. The stake having been remitted to the party who deposited the money, the appellant brought an action against the respondent claiming the amount deposited. The plea was that although the race ■\vas run under the auspices of the Australian Jockey Club, it was not run imder the club's rules as provided by the agree- ment. The Judicial Committee decided in favour of the respondent. Treftz v. Canelli ' 33. While a settlement of litigation was going on between two merchants, they agreed, in order to secure the appel- lant's debt, that the other should make a deposit with the res- pondent of certain bills of exchange, this latter constituting himself a voluntary depositary of them and agreeing to be responsible for the bills " until the effective encashment of 1 Now South Wales, 1869 Feb. 2, L. R. II P. C. 280. 2 Coastantinople, 1872 June 14, IX Moore N. S. 22. mms^. DEPOSIT 315 RESTORATION OF them, which remains entrusted to the depositor." When the bills became due, the respondent gave them to the depositor to be cashed. lu a suit against the depositary, it was held' that the delivery of the bills was not a breach of duty, and that the respondent was not bound to see that the money should be handed over to the appellants. DISCHARGE See Creditors, Composition, Insolvency, Suretyship. DISTRIBUTION See Partition, Insolvency. OROITNDN FOR DIVORCE Wilson v. Wit.sox 34. The parties were separated in 1847 on account of cruelty on the part of the appellant towards his wife. They had since cohabited. Upon her return home the wife was subjected to treatment, which, if not amounting to personal violence, at least showed the malignity of the husband's dis- position. The language of the husband was held to consti- tute cruelty in view of what had occurred before. 35. It is unnecessary in such a case that there should be actual violence ; it is sufficient in order to revive the cruelty in the former period of cohabitation that there should be enough to justify a reasonable apprehension and well founded ground of alarm. 36. The cohabitation after the first reparation was not a condonation of the former cruelty. DOL See Contract, Evidence, Fraud. OF ENOI.ISH OFFItlER DOMICILE Hodgson v. DeBeauchesne ^ 37- The Privy Council held that it was not competent to an English officer in the service of the East India Company, in India, to acquire a domicile in a foreign state, as such domicile was incompatible with the obligations and duty of an officer in the military service of the Queen and the said Company; and that he had retained his English domicile in India, although he had chosen to reside with his family 1 Canterbury, 1849 June 25, VI Moore 84. 2 Canterbury, 1882 July 14, XII Moore 285. 31G DOMICILE OF KXOI.IHII OFFICER. in Frauoe during twenty years and had property there, re- taining, however, the great bnlk ol his property iu England. 38. The presumption of law arising from his profession and staUis was against any intention by him to abandon his original domicile and acquire a new domicile in a foreign state, as it cannot be presumed that he had an intention contrary to his di\ty as an officer in the military service. The RrHiiT Hox. Dr, LusniNQTON, p. 318: — It might be asked, whetlier the ac(iiiiHition of a foreign domicile did not entail on the person acquiring it a lialjility, jure i/entiinn, to servo in a military capacity in such foreign country, a liability clearly incompatible ■with the obligations of an officer in the service of the Queen and East India com])any. Indeed, this view of the case involves other consequences, for it is not merely a question of domicile in France, but domicile in any other country, however distant. A settled ilomicile in a country, imports an allegiance to the country, very ditlerent from a mere obedience to its laws during a temporary residence. In solving these difficulties we must always look to the Jus yentium ; this proposition, however true, requires oxplaiuition. The tribunal which tries a question of this description is necessarily bound by the law of the country in which it is situated, and by which it is consti- tuted. That law, whatever it may be, it must necessarily obey ; but it is not bound to respect the laws of any foreign country, save so far as they are in accordance with the,y«s gentium. We do not think it necessary for the decision of this case that we should lay down, as an absohite rule, that no person, being colonel of a regiment in the service of the East India company, and a general in the service of Her ilajcsty, can legallv acquire a domicile in a foreign country. It is not necessary, for the decision of this case, to go so far, but Ave do say, that there is a strong presumption of' law against a person so circumstanced, abandoning an English domicile, and becoming the domiciled subject of a foreign poAver. MARRIAOE IX THE PROVINCE OF aVEBEC. McMuLLEN v. Wadswortii ' 39. Domicile for purposes of marriage is used, in article 63 of the Code Civil, in the sense of residence ; and although this domicile may be acquired by six months residence for the above object, a man does not thereby lose his interna- tional domicile which governs his moveable property. 40. Where in an act of marriage signed by the husband and the wife, the husband described himself as " a day laborer of the city of Quebec," this did not amotint to a binding de- claration by the husband that he was domiciled in Lower Canada with the Lgal effect of governing his status and civil rights. 1 S. C. Quebec, 1889 July 27, L. R. XIV Appeal Cases 631. S r. DOMICILE 3n nAKRIAOK 1\ THi: I'BOVINCE OF QVRBK<'. Sir Barnes Peacock, p. IM: — Tlio question to bo dotorminctl in tluH ciiso is whotlior James WiulNWortii, liy hi-i iniirria^'o in Sopt ember, 1828, willi Margaret (^iiigluy, widow of .lame.s MeMiillen, subjected himself to the legal community of property as then ostablihlied in Lower Canada. The majority' of tiio learned Judges of the Supremo Court held that his international domicile was not in Lower (Janada or Quebec, and the special leave to ajipeal to Her Majesty in Council was not granteil for the purpose of reviewing that tinding, which di^pended upon a mere question of fact, but in order to determine what was the legal ett'ect of the certiticate or acte de viariuije, signeil by Wads- worti^ and his wife, in wliich he was described as a day laborer, of the city of Quebec, and by which two of the learned Judges of the Supreme Court held that ho was bound as amounting to a declaration that he was domiciled there. Mr. Justice Taschereau, one of these two Judges, in his judgment says : — " By representing to his wife, as ho must bo hold to hiive done by the act" de markuje, that his domicile was at Quebec when he married, Wadsworth guaranteed to her, contracted with her in law, that she would be commune en biens with him. Xow, could ho have been admitted in his lifetime, under any circumstances, in an action en separation de biens, for instance, to contend that this declaration as to his domicile was a false one, or, in other words, that ho had induced his wife to marry him under false pretences or represent- ations ? Would lie have been received so to invoke his own fraud in order to deprive his Avife of her share of the community? Un- doubtedly not. Well, who is the appeUant hero? Clearly, purely and simply, "the representative of Wadsworth, the warrantor of his deeds, entitled to what he himself would have been entitleil to, but to nothing more. How can she then invoke Wadsworth's fraud to deprive the rosiDondents of their share of this comnaunity? And when she does so when she avails herself of Wadsworth's fraud, is she not then herself, in the eyes of the law, committing a fraud? " He added, — '" This is a very important case, not onlv for the parties thereto on account of the large amount involved, but also for the public at large. It involves an intricate question of international law, which, as pointed out by the learned Chief Justice of the Court of Queen's Bench, maj- hereafter often arise in this country. We expect in the near future from the United Kingdom, and in fact from all Eurojie, a large immigration, and evidently cases like the prcsoi't one must eventually with us become more frequent. But further than that, u principle of not less importance for the Province of Quebec is at stake, that is, whether the rules of the French law as to evidence are to govern such cases or not. For the appellants, in the course of a most able and elaborate argument, have failed to cite a case from France in which it has been held that a difterent coutume than the one settled by the acte de mariage can be invoked to defeat a wife's claims or her heirs." It was in consequence of the latter portion of this judgment, which w ais DOMICILK i a MAHHIAUK IW THK IMtOVIKCK Of ({VKHEC. Wiis rcfcrri'il to in tlic pi'tilimi for sjn'cial loavo to apnoal to Ilor .MiiJL'sty ill ("iiuiu'il, tliiit iIk* Iciivo to appi'id was ^ranlod. In ilisciis- siiii; the rase in tin.' courts jjolow, as well as in tlio ar^unu-nts of coiiiisol lit'foiv tln-ir Lordships, tlio Civil Codi' of Lowor ("anada has l.ccii rotorri'd to as conlaiiiini;' Iho law uiionthnsiilijoct, for, although the Codo was not in oxistciu-o at the timo of the inarria^o, it is ud- initlc'd that it correctly oxprossos the liiw as it then existed, so far as this case is concerned. Article 12 have designated simply as residences the " other kinds of domicile; hut a contrary jiraclice has prevailed, and " the neglect to distinguish iietween the tlitt'"rent subjects to whidi •' the law oi domicile is api)lical>lo has been the chief source of tiie •' errors that have occa>ionally prevailed on this subject." lie refers to the disi'ours pronounced by jI. Malherbe on the introduction of the law of domicile into the Code Civil. " Chaque individu ne pent '• avoir qu'iin domicile quoiqu'il ])uisse avoir phisieurs residences;' also to Mallas v. Mallns, 1 l{obertson's I'k-clesiastiejil Cases, page 7r>, where it is said, '' Tlie gradation from residence to tlomicile consists " both of circumstances and intention." Article 70 of the Civil Code of Lower Canada s])oaks of the (hmii- cile of a person for all civil purposes, and article ll8 of a domicile for the purpose of marriage. The latter article is as follows: — "The marriage is solemnized at the place of the domicile of one or other of the parties. If solemnized elsewhere, the person officiating is obliged to verifj' and ascertain the identi:^ of the parties. For the purposes of marriage, domicile is established by a residence of six months in the same place." The words "for the purposes of marriage " refer to the previous portion of the article, and mean for the purpose of the solemnization of the marriage. The Legislature never could have intended to enact by such expressions as these that no person should be married in Quehec unless he should have his international domicile there ; still less could it liave intended to alter the interna- tional law of domicile, and to enac^ that any jjcrsoii having his inter- national domicile elsewhere should, by a temporary residence in Quebec for .six months for the pui|, )se of having his marriage solem- nized there, lose his international domicile and acquire a new inter- DO-MU'ILK ;ii!) MAIIHIAUK IN Tilt: PHOVINfK OF HrKHEC- iiiilioiiul iluinicilo liy oli'ctii)ii, so as to atl'irt liis status ami I'ivil riiflits. Article 12(!l( spi-alvH of till' ^'oiioral laws ami ciistnins of ilic <'niiii- try, 'Vht} arte lie miiri ol' iho I'roviiK'o of (^uolicf or Lowor Canada, tlio country of which the laws auil customs cHtalilishcd tho coiuinuiiity of ))ro|)ci'ly on marriage, liut inercly that he wan of the city of (^uohoc. There c^)uld have been no intention on the part of AVailsworth when ho signed the arte ile mariivje describing him us of the city of (^ucIm (', laliorcr, to mislead or induce his wife to boliuvc iliat by the marriage slio would acijuiro community of property, iir he was a more day laborer, and she was a partner in the tlriii by which he was employed, and there was no probability at that time that he would acquire the large ])roperty of which he died possosseil. The argument of Mr. Justice Tascheroau as regards contract, guarantee, fraud, or misrejjrosentation on the part of Wai-w'orth is not based upon any solid foundation. In fact, the acte de maringe was signed after tho mariage had been solemnized, in accordance with the pro- visions of articles 04 and (J5 of the Civil Code. It was not drawn up by Wadsworth, though it was signed by him, and the words "de cetto villo " wero jirobably introduced from a previous represontution made by him, in order to obtain the solemnization of his marriage, that ho had resided six months in the city. It is clear that the question of international domicile is one of general law, and that the doctrine of the lloman law still holds good, that " It is not by naked assertion but by deeds and acts that " a domicile is established." It certainly cnnot be said that the case involves un intricate question of international law (to use the words of Mr. Justice Tascheroau) if it depends upon whether Wadsworth contracted with his wife or was guilty of a fraudulent misrepresentation. Their Lordships are of opinion that the word domicile in article (J.S was used in the sense of residence, and did not refer to international ilomicile. They are of opinion that a person having resided tempo- rarily six months in Quebec would bo entitled to have his marriage solemnized in that city, although ho might be internationally domi- ciled elsowhore and might refuse to change that domicile. It would be monstrous to suppose that an Englishman, Frenchman or Ameri- can travelling in Lower Canada, and retaining his domicile in his own country, could not be married in Quebec after a temporary residence there for six montiis w Uhout abandouning his international domicile in his own country, and altering his status and civil rights. ONUS PRouANDi. Scc EVIDENCE : iisdem verbis. WHAT CONSTITUTES. Beauce v. Muter ' 41. Domicile must be de facto, uot dejure. Therefore, the fact of a party being resident in France, but represented by an attorney in the Island of Saint Lucia, will not create 1 Saint Lucia, 1845 Jan. 17, V Moore 69, 320 DOMICILE *:'\M WHAT C'OXNTITIJTEN. a constructive domicile, so as to entitle a party to set up as a discharge to a mortgage, a plea of prescription of ten years enlre presents. Anderson v. Laneuville ' 42. Domicile is established by residence showing an intention of perpetual establishment. A man born and brought up in Ireland, came to reside in England and ac- quired there an English domicile. He afterwards sold his house and furniture and went to reside in France, where he bought and furnished a house in which he resided per- manently with the exception only of occasional visits of short duration to England for purposes of business relating to his estates in Ireland, and his property in the English funds. Under such circumstances, the Judicial Committee held, that the testator's domicile was French and was not affected by his having expressed an intention to return to England, in an event which never happened, or of his having, on one occasion when in England, exeiuted a will according to the English form and law, or from the circum- stance that the bulk of his property at his death was in the English funds. The Right Hon. Dk. Lcshinoton, p. 335 : — For what is it that prevents the acquisition of a domicile by long residence in a country ? It is the fact of the individual being there for a temporary purpose. It never can be said that residing in a country until the death of an individual is a residence merely for a temporary purpose. A re- sidence in India; in the East India Company's service, has long since been established to constitute a domicile, yet, in such a case, there is always an animus revertendi at some period, though the jjeriod may be remote, and very uncertain. In order to prevent the acquisition of a domicile by residence in another country, it is laid down in all the books, that if the residence be merely for a purpose which, in its natui'e, is temporary, and not likely to last long, then the residence would not constitute in itself the acquisition of a domicile. HoDGsON V. 1)e Beauchesne '' 43. The presumption of law is against the intention to abandon the domicile of origin. 44. Length of residence in a foreign country, according to time and circumstances, raises per se a presumption of intention to abandon the domicile of origin, and to acquire a new domicile ; but such presumption may be rebiitted by facts showing that there was no such intention. 1 Ciinterbury, 1854 Nov. 30, IX Jlooie 325. 2 Canterbury, July 14, XII Moore 2S5. DOMICILE 321 WHAT CONSTITCTRS. 45. A change of domicile is not to be inferred from the fact of a lengthened residence in a foreign country. To constitute a change of domicile, it must })e atiimo el facto. The Eight Hon. Dr. Lusiiinciton, p. 313 : — The question of domicile has now, for nearly a hundred years, been much discussed in our courts, and there are numerous authorities upon the subject. Various attempts, too, and from an earlier period, have been made by Institutional writers to arrive at a detinition of domicile. The attention of foreign jurists was directed to similar inquiries long before the question arose in England, and the reason appears to have been, that a change of residence on the continent, the removal from one state to another, and from one province to anodier within the same state, where the laws were ditt'erent, especially the law of succession, was more frequent. Such was the case with regard to the Dutch Provinces, and, more or less, as to France and the other continental States. Various meanings have been affixed to the word " domicile " : domicilii, jure gentium, domicile by the municipal law of any country, and we may add, domicile during war, as it may govern the rights of belligerent States. This species of domicile, it is true, is in one sense a domicile, jur'' gentiujn, hut in many particulars it is governed by very differpiit considerations, and decisions belonging to it must be applied vith great caution to questions of domicile independent of war All the writers on this subject, and very many Judges, have de- clared that the intention of the person whose domicile is in question, is a matter of the g:'eatest imjiortance in order to arrive at a just conclusion. Intention must, in a considerable degree be inferred from circums- tances P. 328 : — We concur in the opinion that great weight is to be at- tributed to length of residence, but we think that other matters must necessarily be taken into consideration. Independent of special cir- cumstances peculiar to the individual, as, for instance, being a Peer of ParUament, we apprehend that all the authorities show that the intention to abandon the domicile of origin and acquire another is a most important and indispensable ingredient in forming a judgment upon these questions. In Munro v. Munro (7 CI. & Fin. 877), Lord Cottenham said: "To effect this abandonment of the domicile of origin, and substitute another in its place, it required le coneours de la volonti et du fait, aniino d facto : that is, the choice of a place ; actual residence in the place then chosen, and that it should be the principal and permanent residence ; the spot where he had placed larum rerumque ac fortu- narum suarum sumtnam ; in fact, there must be both residence and nitention. Kesidence alone has no effect per se, though it may bo most imjrortant as a ground from which to im'er intention. Mr. Surge (1 Comm. on Col. & For. laws, 54), in his excellent work, cites many authorities from the civiHans to establish this propo- sition. 21 ■:4 322 DOMICILE 311 ' WHAT COXSTITCTES. In Collier v. Rivaz (2 Curt. Ecc. Eep. 857), Sir Herbert Jenner Fust said : " Length of time will not alone do it, intention alone will not do; but the two taken together, do constitute a change of domicile. In Munrov. Douglass (o Madd. 405), Sir John Leach ob- served: " A domicile cannot be lost by mere abandonment. It is not to be defeated aniino merely, but animo et facto." It was clearly the opinion of that learned Judge that, to constitute domicile, intention and residence must concur. Denizart, Tome I. Tit. "" Domicile" quotes authority to the same efl'ect, tliat neither the intention without the fact, nor the fact without the intention, can create a domicile. We think that length of residence, according to its time and cir- cumstances, raises the presumption of intention to acquire domicile. The residence may be such, so long and so continuous, as to raise a presumption nearlj', if not quite, amounting to aprcesumptio juris et dejure; a presumption not to be rebutted by declarations of inten- tion or otherwise than by actual I'emoval. Such was the case of Stanley v. Bernes. The foundation of that decision, in this respect, was, that a Portuguese domicile had been acquired by previous residence and acts, and that mere declarations of intention to return could not be sufficient to prove an intention not to acquire a Por- tuguese domicile. In short, length of residence per se, raises a presumption of in- tention to abandon a former domicile, but a presumption which may, according to circumstances, be rebutted. It would be a dangerous doctrine to hold, that mere residence, apart from the consideration of circumstances, constitutes a cluxnge of domicile. A question which no one could settle would immediately arise, namely, what length of residence should produce such con- sequence. It is evident that time alone cannot be the only criterion. There are many cases in which a very short residence would cons- titute domicile, as in the case of an emigrant, who having wound up all his aftairs in the county of his origin, deyjartswith his wife and family to a foreign land and settles there. In a case like that, a re- sidence for a very brief jieriod would work a change of domicile. Take a contrary case, where a man, for business or pleasure, or mere love of change, is long resident abroad, occasionally returning to the country of his origin, and maintaining all his natural con- nections with that countr}' ; the time of residence would not to the same extent, or in the same degree, be proof of a change of domicile. AVe concur, therefore, in the doctrine held in many previous cases, that to constitute a change of domicile, there must be residence, and also an intention to change. Platt v. Attorney Gteneral ob' New South Wales ' 46. Residence is a material element in establishing the domicile of a man, especially if such residence is the principal one where the wife and children are living, but it must be a residence freely chosen, and not one imposed by duty or by circumstances. 1 New South Wales, 1878 L. R. Ill Appeal Cases 336. * DOMICILE WHAT CONSTITUTES. Sni Barnes Peacock, p. 3i2 : — Lord Westbury, in the case of Udni/ V. Udny ' says : " Domicile of choice is a conclusion or in- ference which the law draws from the fiict of a man fixing volun- tarily his sole or chief residence in u particular place with an in- tention of continuing to reside there for an unlimited time. Thia is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by an external neceH- sity, such as the duty of office, the demands of creditors, or the relief from illness, and it must be residence fixed not for a limited period or particular purpose but general and indefinite in its future con- templation " It is true that residence originally temporary or intended for a limited period may afterwards become general and unlimited, and in such a case so soon as the change of purpose or animus manendi can be inferred, the fact of domicile is established." P. 343. It is always material in determining what is a man's domicile to consider where his wife and children live and have their i)ermanent place of residence and where his establishment is kept up. Abd-i:i,-Messiii v. Fabba ^ 47. Domicile is the relation which the law creates between a particular locality aud an individual ; it must be terri- torial, and cannot be personal. LoiiD Watson, p. 439 : — The idea of a domicile, independent of locality, and arising simply from membership of a privileged society, is not reconcilable with any of the numerous delinitions of domicile to be found in the books. In most, if not all of these, from thelioraan code (10, 39, 7) to Story's Conflict (7-il), domicile is defined as a locality, or the place where a man has his principal estal)lishment and true home. Probably Lord Westbury was more precisely ac- curate, when he stated, in Bell v. Kennedy " that domicile is not mere residence, ''it is the relation which the law creates between an in- dividual and a particular locality or country." The same learned Lord, in Udny v. Udny * speaking of the acquisition of a residential resumption may be collected, not only from express declarations of the testator, but from all the circum- stances of the case ; and the degree of evidence requisite will be pro- portioned to the deficiency of internal evidence afforded by the perusal of the document itself " The presumption is against an imperfect paper, and the burden of proof against the party setting it up ; but the degree of jn'esump- tion varies according to the state of imperfection in which the paper J resents itself. In some instances it is so completely a memoran- um, that proof of intention cannot be made but by strong extrinsic iP ;fj| 1 Canterbury, 1837 Dec. 16, II Moore 133. 328 EVIDKNC'E ABA!«DONME!«T OF WILI. FROM liAPME OF TIME. circumstancos ; in other ciison it is mo nearly perfect, it has on the sufficient to outweigh the presumption face of it such strong indications of testamentary intention, that slight circumstances are against it. " (') It has already been observed, that the paper does not appear, when written, to have been intended as the codicil coutemj)lated ; but that, nevertheless, it contained the tixed expression of Lord Scarborough's wishes. As a codicil, it was imperfect, but as a paper of instructions it was complete. To ascertain whether it was abandoned or adhereil to, the tirst thing to be inquired after, is the custody or ])laco in which it was found ; whether it was carefully preserved or neglected, or found among the pajjers of no value, or which had become useless. ALIESfS. DONEOANI V. D0NE<).\NI ' 3. The question who is an alien in the Province of Quebec must be decided according to the laws of England, but, when alienage is established, the (.onsequences which result from it must follow the French law. APPRECIATION OF JJLACnFOUK V. CnUISTIAN ' 4. False statements on indifferent as well as on material thing always throws discredit on the party making them. Loud Wyxkoki), p. SI : — ■ False statements are evidence of fraud, €ven although what is falsely stated may be immaterial. The parties must have thought it material to make such false statements ; for although persons are sometimes weak enough to state falsehoods, they are not foolish enough to do so except when they think that they may thereby advance their interest. AVhenever parties are detected in such falsehoods, you have no security that anything alleged by them is true. Raja How Vencata v. Enooooonty Sooriaii * 5. When the judgment brought in appeal is upon ques- tions of fact only, the Judicial Committee will be reluctant to reverse the decision of the court below, unless some test is discovered showing safely and satisfactorily that the truth of the evidence can be estimated in a manner different from that which the court below has adopted. Chief Justice ok the Court op Bankruptcy, p. 260 : — The only question decided by the courts abroad in this case was a question of 1 Forbes v. Gordon, 3 Pliill. 628. 2 Lower Canada, 1835 Feb. 20, III Knapp 63. 3 Isle of Man, 1829 July .3, I Knapp 73. 4 Madras, 1834 Feb. 11, II Knapp 259. EVIDENCE :{29 I APPRECI4TION OF fact, depending upon the credit duo to the oral testimony of wit- neyttes directly contradicting each other as to facts witliin their per- sonal observation and knowledge. In such a case, it is obvious that the court before which the Avit- nesses are examined, and which has the opjjortiinity of observing their demeanour, is the best qualitied to judge of their veracity. "When such a question, therefore, has been fully heard, and impar- tially decided, the safest course must be to abide by the decision of the court below, unless among the circumstances of the case, some test can be discovered, by which the truth of the evidence can bo safely and satisfactorily estimated. Baboo Ulruck Sing v. Beny Persad ' 6. When the covirt below has decided a case depending upon questions of facts alone, the Jndicial Committee will not advise a reversal of their '"adgment, unless there appears some clear distinct point in ^ /hich they are wrong, although doubts may be entertained as to its correctness. Hki,i,in(jiia.m v. Frekii ' 7. The concurrence of the two courts below on a matter of fact, as on a matter of foreign law, has great weight on the opinion of their Lordships, who would require a very strong case of mischief to reverse them. Hon. Thomas Erskine, p. 842 : — When two courts have con- curred in a conclusion of fact, from the evidence before them, or sitting in a part of the King's foreign dominions, have concurred in a matter of foreign law in force there, a court of ajjpeal in this country ought to be fuUj' satisfied that their decision is erroneous before it pronounces a judgment of reversal. Eawciium Mullick v. Luciimeeciiund Radakissen ' . 8. The doctrine enuuci&ted in the above cases was main- tained and acted upon in this cause. Mr. Baron Parke, p. 67: — Indeed, we should not have reversed their judgment on a matter of fact, uidess we were quite satisfied they were wrong, their knowledge of local circumstances, and the character and appearance of the witnesses, enabling them to form a more correct opinion than a tribunal of appeal in this country j)ossi- bly could. But in our opinion, they drew a proper inference from the evidence in the case. Ctann v. Brun, The " Clarisse " * 9. A court of Appeal, in a disputed question respecting the quantum to be aAvarded by the court below for salvage ser- 1 Ik-ngal, 1H34 Feb. 11, II Kiiapp 205. 2 Lower Canada, 1837 May 16, I Moore 342. 3 Calcutta, 1854 Feb. 15, IX Moore 46. 4 Admiralty of the Cinque I'orts, 1856 July 4, XII Moore 340. 330 EVIDENCE API>RFA-IAT10.\ OF vices, is indisposed, except if it appears that the judgmeut is dearly erroneous, to interfere with the compensation which the court below, in its discretion, has awarded. The Lord Justice Knkiut Buuce, p. 344 : — Conwidering tho dis- trcHs and clangor in which tho vos.sol was j)laco(J, and tho-tnoritorious natufo, so far as tho salvors woro ooncornod, of tho sorvicos rondor- ed, their Lordships would, in all probability, had tho caso como ori- ginally boforc thoin, have boon disposed to allow a greater amount of t(jtal romuneration. It is, however, u settled rule, and one of great utility, jiarticularly with reforeneo to cases of this description, that tho ditt'erenco ought to be very ooiisidorablo to induce a Court of Appeal to interfere upon u question of mere discretion. Greene v Bailey, The "Xeptune " ' 10. The same doctrine as in Gann v. Bran, The " Clarisse,'^ mentioned above, was applied in this cause where a diminution of the amount of compensation awarded for salvage services was sought. TiiK IJKiiir Hon. T. Pemberton Lekhi, p. 350; — It is important to adhere strictiv to tho rule laid down in this Court in tho case of the " Clarisse." The same rule must apply in diminishing the amount of compensation which is applied in increasing it, and where tho court below appears to have been fully in possession of all the facts and to have understood those facts accurately at tho time tho judgment was pronounced, and where, theroforo, tho amount awarded was one of more discretion, their Lordships would not, except in a case of very extraordinary character, interfere with tho manner in which that discretion was exercised. The North trERM.\N Lloyd Steamship Company v. Elder, TnE"SEHWALBE" ' 11. Where evidence is conflicting, the appellate court, in order to advise a reversal of the judgment appealed from, must not merely doubt whether the judgmeut appealed from is correct, but must be satisfied that it is wrong. Bland v. Ros.s, The "Julia"'' 12. Where disputed facts, involving nautical questions, are raised by an appeal from the Admiralty court, as in the case of a collision, this court Avill not reverse the decree appealed from, unless it be conchxsively satisfied that the decree is wrong, even though the court may entertain doubts as to the finding of the Admiralty court. 1 Admiralty, 1858 July 9, XIF Moore SVi. 2 Admiralty, 18(10 Dec. 14, XIV Moore 241. 3 Admiralty, 1860 Dec. 13, XIV Moore 210. KVIDKNCH 881 Al*PRE«'IATI09r OF Lynn KiNiisDowN, p. 233: — They who reqiiiro tliih Board, iinder such ci^cum^^tllncos, to rover.so a decision ot'tiie Court helow, iijion u point of this description, undortaivo a task of great and almost in- superable difficult}', 'n all casus, as wc liave frequontl}' ol)scrvcd, wo must, in order to reverse, not merely entertain doubts whether tiie decisicjn below is riyht, but be convinced that it is wrong. And when a controversy arises upon facts of the nature of that now in question, there are some peculiarities in the jurisdiction which we are now exercising deserving of attention. Til a Court of Law, if the judges are dissatisfied with a verdict as against the weight of evidence, they can send the case before another jur}'. In the Court of Chancery, when the Court of Appeal reverses the judgment of the Inferior Court on the result of evidence, the judges of the Ajjpellate Court arc as capable as the judge below (and, indeed, are presumed to i)e more capable) of forming an opinion for themselves, as to the proof of facts and as t(j the infer- ences to bo drawn from them. But in these cases of appeal from the Admiralty Court, when tho question is one of seamanship, when it is necessary to determine, not only what was done or omitted, but what would be the ett'ect of what was done or omitted, and how far, under tlio circumstances, the course pursued was proper or improper, their Lordships can have but slender means of forming an opinion for themselves, and certainly cannot have better moans of formhig an opinion than the judge of the Admiralty Court. They do not speak with reference to the distinguished person who now tills, and has so long filled, that office, though it would be impossible to imagine a stronger example of tho truth of the remark ; but any judge who sits from day to day on such cases must necessarily acquire a knowledge and ex- perience to which ordinary members of this Board cannot pretend. They must in such cases act entirely upon tho advice of the nautical assessors, who form no part of the court, whose opinion they can regard only as they might regard the advice of any nautical men out of court. The Cteneral Iron Screw Company v. ^Foss, The •' Auaxes" and the "Black Puixce" ' 13. The principles laid down iu the above case, The " Julia,'' affirmed. The "Chetah" ' 14. The Judicial Committee though uuwilliug to inter- fere with the discretion exercised by the judge of the court below in questions of salvage, either by increasing or diminishing the sum awarded, will, nevertheless, when, in their judgment, there has been excess in the amount, or the sum awarded is manifestly insufficient, exercise their own 1 Admiralty, 1861 July 11, XV Moore 122. 2 Ailmiralty, 1868 Nov. 26, V Moore N. S. 273. .'{as KVIDIINCH I Ai>FHi:('iATii».\ or judjrm(Mit UK to the proiicr iTiruuH'niticin to be u^vard^Ml and iipportioiu'd among' the Kulvorti. In ihin cauKo their Loid- iships rt'dui't'd th(! hiuii a'warded by more tlian on«' huli'. TlIK, " Ami'E" and TIIK •• I'ltlNCKSH A MC K " ' 15. The prim-iple of non-interlereuce -witli the discretion of the court below in matterK of fact "vvas again main- tained. But their Lordiships -will not cousidi-r it as a general ruh', as there are cases in which the Judicial Committee may be bound to interfere. TiiK Ij(iiii) .IrsTicK I'.VdK WoiiK, p. ."J.'tti : — It' thin liourd finds lluit in iho Court below thcro was a clear and distinct ovidonco U]ion the one side, and ])()ssib!y tviilonce which tho appolhint might think to 1)0 as dear and distinct on tius other side, nevertiieless, if the judge in the Court below, in his discretion, having tho opportunity of seeing tho witnesses and observing their demeanour, has come, on the balance of testimony, to a clear and decisive conclusion, those who undertake to reverse that conclusion, on the ground that tho jadgo has erred in giving credence to tho one cT^ass of witnesses rather than to the otiier, undertake, as ex])re8sod in the case of The "Julia," an almost impossible task. This Committee lias no op])ortunity of seeing tho witnesses, of considering in what respect credence should be given to ono class rather than the other from tho mode in which tlieir evidence has been given ;. and it would luivc to perform a duty of a most painful character if it wore not merely to reverse the dctusion of the judge below with reference to tho finding that he has como to adverse to tho appellant, but had, ni such a state of circumstances, to do that which would bo a neces- sary corollary from such a step, vi/.., to give a deliberate judgment in liivour of tho respondent, without tho same means of ascertaining tho real truth as was possessed by the judge of the Court below. Now, it is of course not wise at any time to lay down rules ot such extreme accuracy of definition as would induce a Court of Appeal to liold itself bound upon any future occasion to a fixed and determined lino which cannot ue overpassed on the one side or the other. Wo have had to consider that question on a ditferent .subject matter in the course of this verj' daj', with reference to the coin-se taken by this Committee as to tho augmentation or diminution of the amount awarded in salvage cases. '' A useful line has been drawn by that case with rel'erence to our proceedings in such a case as this, viz., that it requires a case of extreme and overwhelming j)ressure to induce this Committee to vary from tho decision of the Court below as to tho amount of damage with reference to salvage. Still such a case may occur ; this Committee has only recently so decided in a similar case. ' It is just possible to suppose that other cases might occur with reference to this very question of evidence, and it 1 Admiralty, 18(i8 -Vov. 30, V Moore N. S. 333. 2 thti " Chelah." See the preceding case. 3 The " Calaba." See J'erchant Shippi.no. KVIDHNCK n:m AI>3>HKriATION Of ini^lil Ijo possihld to hIiow lliat tlu^ jiulgoholow hiul «<» jiliiiiily, inuiii- fostly and cloarly L-rroil upon I lit* i'lico ot'tho ovidonco that we oiil;IiI to rovorno Jiis jiid^niont. 'Vur. •• l-lMil.AMi " ' !♦). Thi! Judicial (.'ominittcc again nU'uHi'd to iiitcrli'vo with the diKcn'tion of the court below in iidjiidiiiiliiit!' upon u (juoHtion oi' lint. AVTIIKNIII' WRITI9i4JN. XvK V. Maciionai.ii ' 17. Ill a petitory uitioii hrouiiht in tlie Suixnior court, in the province of Quebec, to recover land, the plaintitl' lyled in the record as evidence, a deed ol'sale inad(> before a public notary in the province oi' Ontario. The courts in the province of Quebec ri fused to give etlect to the signature of the notary in the absence of proof of identity of the parties named in the deed, and dismis.sed the plaintilfH action, 18. Although by the Frem^h luvv^ the deed signed by a ]>ublic notary, in the province of Quel)ec,issulticient evidence before the courts of that ])rovince of its contents, the cer- tificate of a publit! notary in the province of Ontario, where the English law prevails, Avill not be received /ter scah proof of the due execution of an instrument or of the identity of the parties ; su(;h fact mxist be proved by evidence as re- quired in England. Louu Cauins, \). 150: — A notary pubMc in tlie province of'Uppor (Jiinada, a province" ro^ulatod by Kngliwh law, lia.s no powor, by Knylisli law, to certify to the execution of a deed in .sucli a way as to make his certiticato evidence, without more, that the deed was executed, and that it was attested in the manner in which the deed professes to bo attested. Accordinjf to the law of England, the mere production of the certificHto of a notary public stating that a deed had been executed befon im would not in any way dispense with the proi)er evidence of the '■xecution of the deed. The circumstance that by French law a French notary public has a greater ])0wer, and that his certificate hn^ a, greater valiility, does not a])])ear to their Lordships to carry a ])ower to the act of the Knglish notary upon lOnglish soil, so that that :i('l when brought into question upon French soil should have the e. roperly dis- credited witnesses is not a general rule ; there may be cases iu which their Lordships may think fit to exercise their discretion in the interest of justice. Lore Wynkord, p. 283 : — The rule laiil down in the case of " San- tacana v. Ardeval " that no ajii)eal will lie from the judgment of a court, on the ground that the court discredited the witnesses pro- duced to them by either party should be somewhat quaUtied, or it would prevent us from protecting colonists against the etfects of local prejudices, to which jurors, assessors and judges, who reside within a jurisdiction of small extent, and are in constant commu- nication with the inhal)itants, are liable. In all cases in which the Coiu't of Appeal f-ees no urgent rcast)n for saying, that the court in whose presence the evidence was given hiive taken a wrong view of it, the safest course is to adhere to its determinatioii. But a case may be so tuisatisfactory as to require further explanation ; so impro- bable as to be manifestly unworthy of credit ; oi- may exhibit cir- cumstances which should convince any impartial or judicious mind of its truth. In such cases the Court of Appeal should not be con- cluded by the judgment of tlie Court below, but exercise its power of sending a case oack for further ini^uiry, with such directions as to that inquiry, as it may think proper to give. Ci-ARK V. Carter ' 24. As a general rule, it is manifestly objectionable to reexamine a witness after a release of that which would 1 Gibialtar, 1834 Feb. 17, II Knupp 276. 2 Caulerbury, 1843 Feb. 18, IV Moore 207. I i t 5 51 336 EVIDENCE CREDIBILITY OF WITNEHSEH. have been a valid objection to his competency. But, in every case of this description, the circumstances and the nature of the objections, as to the interest of a v/itness, must be tousidered. The witness in this case was allowed to be reexamined. FOKWERY Doe den Devine v. Wilson & al. 25. There is a great difference with regard to the onus jifobundi in a case of forgery in a civil suit and in a criminal matter. In the first, the one who produces the documents is bound to establish that it is genuine ; in the second, the proof of the forgery is upon him who asserts it. The Eight Hon. Sir John Patteson, p. 531 : — Now, there it a great distinction between a civil and a criminal casse, when a question of forgery arises. In a civil case the onus of proving the genuineness of a deed is cast upon the i>arty who produces it, and asserts its validit}-. If there be conflicting evidence as to the genuineness, either bj' reason of alleged forger^', or otherwise, the party asserting the deed must satisfy the jury that it is genuine. The jury must weigh the conflicting evidence, considei all the probability of the case, not excluding the ordinary presumption of innocence, and must deter- mine the question according to the balance of those probabilities. In a criminal case the onus of proving the forgery is cast on the prosecutor who asserts it, and unless he can satisfy' the jury that the instrument is forged to the exclusion of reasonable doubt, the prisoner must be acquittctl. IX (OMHERC'IAL. I'O.N'TRAt'TN. McKay v. Rutherford ' 26. A commercial c(jntract which does not come within the Statute of Frauds, may, according to the law of England, be proved by parol evidence, and this was held to apply in the case of a contract betAveeu an individual and the govern- ment to siTpi^ly stones for the making of a canal. 27. The Canadian Act, 25th Geo. Ill, c. 2, set. 10 (Code Civil art. 1206) passed by the Legislature of Lower Canada, for regulating proceedings in the courts of justice, which enacts that for proof of all facts concerning commercial matters, recoiirse should be had to the rules of evidence laid doAvn by the laws of Enghmd, revoked so much of the old French laAV, which formerly prevailed in the province of Quebec, and the rules of English law as to the admission of parol evidence in commercial matters were substituted for those laid doAVu in the Ordonuaiice de Moulins (1566), 1 New South Wales, 1855 July 25, X Moo-e 531. 2 Lowtr Oanacia, 1848 Dec. 12, VlMoore 413. ■ , r EVIDENCE 337 ISr COMMKRCIAI. COXTKAC'TN. and subsequently altered by the Ordonnince of ]*'67, Avhere- by parol evidence "vvas excluded from the proof of all cou- Irads, or matters, exceeding the sum of 100 lures, except in certain cases. IX LIBEL CASES. Rainy v. Hhavo 28. In an action of libel the defamatory words set out in the declaration must be proved as laid, and it is a latal variance, if the words as alleged are materially qualified by evidence of words not contained in the declaration, although such words as qualified may still be libellous. The defendant, after the publication of a libel and before the action Avas brought, destroyed the letter containing the libellous Avords. It was held, that, as the defamatory writing Avas not in existence, oral evidence of the contents of the letter l)y Avitnesses Avho heard it read was admissible, but that the actual Avords used as laid in the declaration must be proved, and not the substance or impression the wdtnesses receiA'ed of the AA'"ords, as otherAvise the AA'ituesses, and not the court or jury, AA^ould be made the judges of AA'^hat was a libel. inevitable acc'idext. The '■ Despatch ' '' 29. When a collision has occurred, in order to establish a case of iucAatable accident, he \A^ho alleges it must proA^e that AA^hat occurred was entirely the result of some vis major, and that he had neither contributed to it by any previous act or omission, nor Avhen exposed to the influence of the force had been AVanting in any elFort to counteract it. laws of foreign state. Smith a'. Gould et al'., The " Prince George " ' 30. If reliance is placed upon a difference betAA'een the laAV of England and a foreign state, the party relying upon the difference is bound by Avitnesses or authorities to prove such fact. Bremer \. Freeman * 31. Foreign laAV is a matter of fact to be ascertained by the evileuce of experts skilled in such laAV ; but when the evidence of the experts is unsatisfactory and conflicting, the 1 Sierra Leone, 1872 June 11, IX Moore X. S. 35. 2 Admiralty, 1860 July 11, III Law Times N. S. 220. H Admirably, 1842 Feb. 19, IV Moore 21. 4 Canterbury, 1867 March 7, X Moore 300. 22 338 EVIDENCE I.AWS OF rOREION STATE. appellate court, not having an opportunity of personally examining the witnesses to ascertain the weight due to each of their opinions, will examine for itself the decisions of the foreign courts and the text Avriters, in order to arrive at a satisfactory conclusion upon the question of foreign law. I.O€Al. I'SAOE. KiRCHNER V. Venus 32. Local usage may be admitted in evidence to affect the construction of contracts, but it may serve one of the parties only in case it is admitted or proven that the other party had a knowledge of such usage. Ignorance in good faith is a good answer in such case. Lord Kingsdown, p. 399 : — The ground upon which it appears to U8 that this case must be decided in favour of the appellants, is this, that when evidence of the usage of a particular place is admitted, to add to or in any manner to att'ect the construction of a written con- tract, it is admitted only on the ground that the parties who made the contract are both cognizant of the usage, and must be presumed to have made their agreement with reference to it. But, no such presumption can arise when one of the parties is ignorant of it. NEW EVIDENCE. Eaja Eow Vencata v. Envogoonty Sooriaii ' 33. The Judicial Committee will not send back a case to a court below for further investigation, on the ground that further evidence might now be produced before it, Avhen the party has had oi^portuuities of bringing forward that evidence below% of which he has not availed himself Meiklejohn v. Attorney General and Caldwell ' 34. A testator had made a will bequeathing freehold pro- perty, but the will was not signed by the testator at the end of it, and it was attested by no witnesses, and there was no date affixed to it. "While the case was pending before the Privy Council, the testator's housekeeper was examined in Canada, and her deposition was sent to England. She deposed that she had seen the testator write the will a few months before his death, that he told her it was his will, and ordered her to lock it up in his escritoir, which she accordingly did. The app'^llants Avere admitted to the benefit of this deposi- tion, under an order of the Judicial Committee. 1 New South Wales, 1859 Feb. 5, XII Moore 361. 2 Madras, 1834 Feb. 11, II Knapp 259. 3 Lower Canada, 1834 June '21, II Knapp 328. ^W wmim! EVIDENCE 339 STEW UVIDENCC. GUIMARAENS V. PrESTON 35. New evideuoe ou the part of the appellant -vvas re- ceived by the Judicial Committee at the hearing of this appeal. HuaiiEs V. Pascal ^ 36. Evidence not adduced in the cotirt beloAV or forming part of the transcript was allowed to be used on motion made at the hearing of the appeal, subject to all just excep- tions. Anony.mous ' 3t. In a suit for separation by reason of the wife's adul- tery, and pending the hearing of the appeal, new facts were alleged to have been discovered. A petition by the wife asking to prove the commission of acts of adultery by the husband, which she only since had been aware of, was granted, and the appeal was suspended. XoRTiicoTE v. Douglas, The "Eranciska " * 38. In matters of international law, where a ship has been seized for breach of blockade, if doubts exist on matter which does not appear upon evidence furnished by the ship itself, namely, the papers on board, or th'' examination of the master and crew, the existence or non-existence, the sufficiency or insufficiency of a blockade, a Prize Court will allow fiirther proof, and such further proof is not limited to the claimant, but may be granted to the captor also. The Eight Hon. T. Pemberton Leigh, p. 43 : — In everything tliat regards tlie ship and cargo the case is to be considered, in the tirst inntance, exchisively upon the evidence furnished by the ship itself, namely the papers on board and the examination on the standing interrogatories of the master and some of the crew. If the ease be clear upon this evidence, restitution or condemnation is de- creed at once. If upon such evidence the case be left in doubt, further proof is usually allowed to the claimant only, but it may also be allowed to the captors, if, in the opinion of the judge who hears the case, such a course appears to be required. With respect to matters which cannot ajjpear upon evidence furnished by the ship, as the existence or non-existence, the sufficiency or insuliicien- cy, of a blockade, the Court must necessarily resort to other means of information. 1 Admiralty, 1842 July 13, IV Moore 167. 2 Gibraltor, 1842 Juno 20, IV Moore 41. 3 Canterbury, 1855 March 20, IX Moore 434. 4 Admiralty, 1855 August 1, X Moore 87. 840 KVIDKXOE f -I new evii»kxe any intrinsic evidence in oi^positioii. 40. In a case ■where no suspicion of an intention to break a blockade appeared from the ship's papers, or the primary dei)ositions, the Judicial Committee refused the admission of further j^roof }>y the captors to contradict the depositions with respect to the place of capture. Falle v. Lk Sueur and Le IIuquet ' 41. The Koyal court rf Jersey having refused to hear witnesses tendered hj a defendant in support of one of his pleas, and great delay having occurred from the course pursued, the Judicial Committee, under the poAvers of the statute, 3rd and 4th WUl. lY, ch. 41, sec. 7, appointed a special examiner to take further evidence in the Island, confining his inquiry to certain facts, and directing him to report the same within a limited time ; the appeal to stand over for the prodxTctiou of his report and to be argued with reference only to the efl'ect produced upon the entire case by such additional evidence. Hasking v. Terry ' 42. Their Lordships explained the rules established with respect to bills of review for new evidence as follows : The Eight IIox. Lord Ivingsdown. p. 508: — The party who ap- plies for permission to file a bill of review, on the ground of having discovered new evidence, must show that the matter so discovered has come to the knowledge of himself and of his agent for the tirst time since the ]ieriod at which he could have made use of it in the Buit, and that it could not, with reasonable diligence, have been dis- covered sooner ; and secondly, that it is of such a character that, if it had been brought forward in the suit, it might probably have altered the judgment. ONi's pkmba?;di ix coellsiox caj^es. Morgan v. Sim, The "London " * 43. The nuns prnhandi in an action of damages for collision lies on the plaintiff who seeks compensation, and he must 1 Admiralty, 1850 July 10, X Mooie 491, 2 Jersey, 185!) June ,33, XH Moore 501. a Now South W.ile?, 18G2 July 12, XX Moore 493. 4 Admiralty, 1857 Dec. 15, XI Moore 307. 1 i:vii)ENCJ<: 341 ONtlM PKOBAXDI tS tOI.l.IMOX CASES. establish that the loss was the oonseqiieuce of the ueglect or default of the defendant, cr else he cannot recover. There is no question or doubt about the law, the burden of proof is clearly iipon him. The " Mari-esia " " 44. Where in a case of damages for collision the defendant pleads inevitable accident, the plaintiff, nevertheless, is bound to make his case, and it is only after the plaintitf has made a prima facie case of negligence and want of due care, that the defendant is put to his evidence on his special plea. OXVS PRUBA!Vni IN CHAXOE OF DOMICILE. HODO.SON V. De ]]eaiciiesne '' 45. The onus probandi is upon the party who alleges the change of domicile, the presumption of the law being in favor of the domicile of origin and against the abandonment of it to acquire a new domicile in a foreign state. The Kkjiit Hon. Dr. Lushington, p. 325 : — Widi respect to verbal declarations made to witnesses who depose thereto, no doul)t such declarations arc admissible evidence in these questions of domicile; but the weight to be attributed to them entirely depends on cir- cumstances, especially the time which has elaj)scd since they were made ; and the circumstances umler which they were macle. To entitle such declarations to any weight, the court must be satisfied not only of the veracity of the witnesses who depose to such de- clarations, but of the accuracj- of their memory, and that the de- clarations contain a real expression of the intention of the deceased. Such evidence, tiiough admissible, has been considered by many authorities as the lowest species of evidence, especially when, as in this case, encountered by conflicting declarations. oxvs PROB.Asrni ix cki.iiixai. matters. DioMissis V. The Quee\, The " Laura " ' 46. The general rule in criminal offences is to lay the burden of proof on him who alleges the violation of the law Lord Turner, p. 186 : — To be in any way concerned in the Slave Trade is a highly criminal oft'ence and the laws for the suppression of the trade are of a very penal character, affecting both the persons and the property of those who venture to embark in so nefarious a traffic. The proof of the infringement of these laws must, therefore, rest upon those who allege that thej' have been infringed. This is the rule of law which applies universnllj' to cases of criminal offences tmd there is no exception to this rule in cases of offences against the 1 Admiralty, 1872 Feb. 15, VIII Moore X. S. 4i!8. 2 Cauteibiiry, 1858 July 24, XII Moore 285. 3 V. A. Antigua, 1805 March 15, HI Moore N. S. 181. !; ;•! Ill '■ ' i: f1 ;j42 EVIDENCE OXl'N FROBAXDI IS CKIMI.VAI. HATTKRSl. I11W8 for Iho Huppresssion of tho slave trade. Offences against these laws may no doubt bo established, as oltencos against other laws may be established, by circumstantial evidence ; but The circums- tances brought forward to establish the offence must bo such as do not end in suspicion merely. They must bo such as to satisfy a reasonable mind that the susjMcion is well founded, and that the offence has been committed. ONUS PROBAHrni IW CI.AI1II8 FOR HARBOUR Dl'KS. EoLET V. The Queen ' 47. Where goods were unshipped in the immediate pre- cincts of the harbour, the onus of proving that the vessel was not actually w^ithin the harbour, lies on the party claiming exemption from harbour dues. oxi'N PRonA^'nI in voidable contracts. 3Iei,boi:hne Bankino Corporation v. Brouoham ' 48. In a suit by an insolvent, who had obtained a cer- tificate of discharge, against the appellants alleging that his assignee had given them a release of the equity of redemp- tion of an immoveable mortgaged in their favour under misrepresentation and mutual error, and praying that the said deed of release might be set aside. Held that the respondent was prima fade bound })y his assignee and the omw.s probanH was upon him to establish the misrepresentation and error ; and that the evidence in the case did not prove those allegations. Knight v. Marjo- ribank-s, 2 Mac. & G. 10. PAROL EVIDENCE IN DONN MANIJEI.M. RrCIIER V. VoYER ' 49. Parol evidence is admissible to prove dona manuels. Sir Montaoue E. Smith, p. 478 : — It seems to their Lordships that the parol testimony of witnesses is, of necessity, admissible to prove the agreement in certain cases coming within the class of " dons manuels," since it would be incompatible with the law, which allows such gifts to be made by verbal agreement, to exclude tho only evidence by which such an agreement can be established P. 480. But, be that as it may, it is obvious that in cases where formal authentication by notarial act is dispen.sed with, it would be dangerous for the courts to support gifts except upon plain and con- (tlusive evidence of the agreement. 1 Admiralty, 1866 July 21, IV Moore N. S. 41. 2 Victoiia, 1882 March 11, L. R. VH Appeal Cases 307. 3 Quebec, 1874 May 2, L. R. V.P. C. ;iil. EVIDENCE 848 parol kt1de9;c'e to prove wili.n. Allen v. Maddock ' 50. "Where there is a reference in a duly executed testa- mentary instrument, to another testamentary instrument, imperfectly exet^uted, but by such terms as to make it capable of identification, it is necessarily a subject for the admission of parol evidence, and such parol evidence is not excluded by the 1st Vict. ch. 26, and when the parol evid(!nce sufficiently proves that, in the existing circums- tances, there is no doubt as to the instrument, it is no ob- jection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified. See Wills : form of loills, same cause. TiiK IJidiiT Hon. T. I'kmbkrton Leiuii, p. 440: — It is necossiiry also to remember the distinction bet^'cjr. liu' admis.sibility oi'ovidenco to prove a tostamentiiry paper, and of evidence to explain it.s meaning, tlint direct evidence of intention, declarations of the tes- tator by word, or in writinfr, and other testimony of a similar character, are admissible, when the will is disjuited. but that no such evidence can bo received in order to explain the expressions which he has used. Still, in construini;' his will, the court is entitled, and is bound, to place itself in the situation of the testatnr with respect to his property, the objects of his bounty, and every other circums- tance material to the construction of the will, and for the purpose to receive, if occasion require it, jiarol evidence of those circumstances, and to expound his meaning with reference to them. P. 454 : — A reference in a will may be in sucii terms as to exclude parol testimony, as where it is to papers not yet written, or where the descri|)tion is so vague as to be incapable of being applied to any instrument in particular; but the authorities seem clearly to establish that whore there is a reference to anj' written document, described as then existing, in such terms that it is capable of being ascertained, parol evidence is admissible to ascertain it, and the only ([uostion then is, whether the evidence is sufficient for the purj)ose. MlONE.VULT V. .MaLO '' 51. The law which introdu(>ed into Canada the English law as to wills must be considered as having introdu(!ed it with all its incidents, and, therefore, with the admissibility of oral evidence. parol, evidenl^e to expi.aix heeds. The Bacon Life and Fire Assurance Co. v. Gibb ' 52. In order to construe a term in a written instrument, when it is iised in a peculiar sense, differing from its 1 ('anterbiiry, 1858 Feb. 19, XI Moore 427. 2 Quebec, 1872 Feb. 3, VIII Moore N. S. .347. 3 Lower Canada, 1862 Dec. 3, I Moore N. S. 73. 344 KVIDKXCE I PAItOI. KVIDRXVE TO EXPLAIN DKEDM. ordiuary mcauinir, evidt'iice is admissible to prove the peciiliar sense in which the i)arties imdevstood the term, but evideiiee is not admissible to contradict or mry what is plain. PEIUl'KV. ('anepa v. Tjoutos ' .'i.S. The appellant had the respondent's clerk indicted and convicted for perjnry in his evidence in this case, the appel- lant hiniseli' being one of the witnesses against him in the criminal suit. A transcript of the record of this conviction "Was sent over to England before the appeal was heard, and was printed by the appellant amongst the other i)apers laid by him before the Judicial Commitlee. The Judicial Committee refused to admit this evidence and remonstrated with the appellant upon such conduct on his part. Lord Wynford, p. 285 : — Wc liiglily disapprovo of the appellant's imliclini^ one of the witiicssos m this case for perjury, supporting tlie indictment by his own testimony, and attempting to use the conviction to obtain a reversal of the judgment against himself. A criminal prosecution shoukl not be resorted to until civil pro- ceedings are at an end, and tiio party prosecuting can iiavo no private interest to promote by the ])rosecution. Theapjieal must be dismissal, and the appellant must paj' the costs found due on taxation by the proper officer ; and wo trust that the making persons pay costs who prefer indictments for perjury, and attempt to make use of those indictments on the hearing of appeals, will prevent parties from having recourse to such proceedings in future. presumptions. TUker v. Ratt '' 54. A will written or procured to be written by a party who is benefitted by it is not void, but this circumstance forms a just ground of suspi»non against the instrument, and calls upon the court to be vigilant and jealous ; and unless clear and satisfactory proof be given that it contains the real intention of the deceased, it will be pronounced against. Barry v. Bi tmn " 55. The fact of a party preparing a wall, Avith a legacy to himself, is at most only one of suspicion, of more or less weight according to the circumstances, demanding however, 1 (xibraltar, 18.H Feli. 17, II Kniipp. 2TG. 2 Canteibiiry, 1838 Miiy 10, II MoDre ;-il7. a Canterbury, 1838 Dec. H, II Mooru 480. .-..-jj HVIDKXCK .•i45 PWlKHVnvnOTiH. the vigilant care of the i-ourt in investigating the i-ase before granting probate ; and though evidcfnee of the ins- tructions given by the det'eased, and the reading over of the iustniraent are the most satisfactory proofs of the testator's knowledge of the contents, they are not the only description of proof by which the cognizance of the contents of the will may be brought home to the deceased, even iu a case of doTibtful capacity. HaTKM.VN v. I'KNMXOTnN ' 59. Alterati' ,is made iu pencil iu a will are presumed primii facie a tUliberative act, those in ink, linal. But it may be shown to be otherwise. In re Sixisteu's I'.vtknt ' 57. The fact of an invention Avheu known, not getting into general use, is a presumption against its utility. Cooper v. Hauuett ' 58. In the absence of all direct written or verbal evidence showing at what time alterations, obliteration, can(H'lling, .superscription or interlineation were made in v. will or codicil by a testator, the presumption of the law is that they were made after the execution of the Avill and probate of the will shall be granted in its original form. The (tkeat Westeun I{au.\vay ("(i.mi'anv v. I^raid & Fawcett * 59. When an injury is alleged to have arisen from the improper construction of a railway, the fact of thi bunk of the latter having given way will amount to priind jucie evidence of its insulficiency ; and this evidence may be- come conclusive from the absence of any proof on the part of the company to rebut it. The Cmlo.mal Baxmv op Australasia v. William ^ 60. When a public company has been incorj^orated by virtue of a statute which prescnoed certain rules for the constitution of such companies, and for regulating their proceedings, it Avill be presumed in judging of the trans- actions between the company and other parties, that the requirements of the statute have been complied with. 1 Canterlmry, 1840 July 10, IU Moore 227. 2 1842 Dec. 8, IV Moore 164. 3 Canterlmrj-, 1840 Fel). 7, IV .Moore 419. 4 Upper Uiinada, 18ij3 Feb. 7, I .Moore N'. S. 101. 5 Victoiia, 1874 March 23, L. R. V P. C. 417. 340 kvii)i;n(.'i ? f PHIMOXKK'N Di:iM»NITI4»^'. The Quken V, Cootk ' 01. Tho firti marshiil holdiii'^iui I'lKjiv'^to iiftor the burning" oi" a bnildinij; (^xiuuincd the [jvoprii'tor under oath, without pn't'crriiii^ any iharj^t; ayainst him, and Avithout warn- injr him that hiH ovithincc niig'ht bt; used against him. Thti Ham<> person was afterwards indicted lor arson, a felony. At the trial his deposition taken as above stated was used. Objection was takin by the prisoner to the fyling of such evidence before the jury. After conviction, on a reserved case, the court of Queen's Bench ordered a new trial. On appeal, the Privy Council held that the deposition was pro- perly admitted as evidence against the prisoner at the trial. t)2. The dei)osition8 on oath of a witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, excepting so much of them as consists of answers to questions to which he has objected as tending to criminate him, but Avhich he has been improperly com- jielled to answer. • )3. The statute requiring magistrates to caution the ac- cused with respet^t to statements he may make iu answer to the charge, is not applicable to witnesses who are asked questions tending to criminate them. Sni RoBEaT P. Collier, p. 472: — Kdward Oooto, the respondent, way convicted of arson, subject to a question of law reserved hy Badf^ley, J., (the judge who presided at tlie trial), for the consider- ation of the appeal side of the Court of Queen's Bench, in persuanco of ch. 87, sect. 57 of the Consoli(hited .Statutes of Lower Canada. The question reserved was, wliether or not the prosecutor was entitled to read as evidence against the prisoner depositions made by liini under the following circumstances : — An Act of the Quebec Legislature appointed officers named '' Fire Marshals ' for Quebec and Montreal respectively, with power to enquire into the cause and origin of tires occurring in those cities, and conferred upon each of them " all the ])owers of any judge of session, record • or coroner, to summon before him and examine upon oath all ])orsons whom he deems capable of giving information or evidence touching or concern- ing such tire. " These officers hud also jiower, if the evidence adduced atforded reasonable ground for believing that the tire was kindled by design, to arrest any suspected person, and to proceed to an examin- ation of the case and committal (jf the accused for trial in the same manner as a justice of the peace. Upon an enquiry held in pursuance of this statute as to the origin of a tire in a warehouse of which Cooto was the occupier, he was examined on oath as a witness. No copy of his depositions accomijanies the records, but their Lordships accept the following statement of Badgley, J., as to the cii'curastances under which they were taken : '' Among the several persons examined I 1 Quebec, 1873 March 11, IX Moore N. S. 403. u EVIDKNCK 347 PHINOWKH'N DKPONITIOW. ro^i|ioc'tiiiff tlmt Hro wan Cooto liimHolf, upon two occasionH at an inU-rval ot'tlir»«(» or tour days lictwccn his two appoarancos, on oach ot'vvhk'li ho sii^nod his dopositiou (akoii in tho usual nuiimor of such piocoodings, and which was attested iiy tlio coniniissioners. Upon lioth occasionrt ho acted vohintarily and without constraint ; llioro was no charge or accusation a;,fainst him or any other person ; ho was t'reo to answer or not tin- ([uestions put to him, and frequently exercised his privilege of ret'iisini^ to answer such questions. Some da^-s after the date of the latter deposition, ami after tlio final close of tho inciuiry, Coote was arrested upon tiio charge of arson of his ])remisos and duly committed for trial." At liis trial tiio above- mentioned depositions were didy proved, and admitted in evidence after beint;; objected to by the counsel for tho prisoner. Tiio objection taken at tho trial appears to have boon that to constitute such a court as that of tho Fire Marshal was beyond tho power of tho pro- vincial legislature, and that consequently tho depositions wore illegally taken. Subsequently otiier olijoctions were taken in arrest of judgment, and the question of the admissibility of the depositions was reserved. It was held by tho whole court (in their Jjordships' opinion rightly,) that the constitution of tho court of the Fire ^larslial with the ])owors given to it, was within tho competency of the provincial legislature ; but it was further held by a maj57, JJonman, J., admitted against the defendants, on a charge of conspiracy, answers which they had made on oath in a suit in Chanceiy. In Reij. v. Sloggett, Dearsl. C. C. RIS09rER'|ii DEPOSITIOSr. enioii. Tlieir Lordbhips see no rciisoii to introduce', with veferenex' t(j thi-^ suliject. an exfoplion to tlie rulo rocdgnisod as essential to tiie administration <>t the criminal law, L/n'inintia Juris non exeusat. With re^jteet to the oliJe(tiy Eadgley. J., not to have been I'eserved, but which is treated as roerved liy the Court), it is enough to say that the caution is by the terms of the statutes apjilicablc to accused persons only, and has no api)licaiion whatever to witnesses. It'indeed, the Fire Marshal bad exercised the power which he possessed of arresting Cooteon a criminal charge (but which he did not exercise), then it would have been proper to caution him liet'ore any further stati'inent from him had been received. A c^uestion has been raised on the part of the Crown whether or nijt the Court had the jtower of ordering a new trial, inasmuch as c. 77, s. 60, of the Consolidated Statutes of Canada, giving the Court power to direct u new trial, has been repealed by the subsecpieut statute 32 and 3o Yict., c. 2U, s, 80, which docs not itself in terms confer any such power, but in the view which their Lordships take of the case it become:- unnecessary to determine this question. For the reasons above given their Lord- ships will humbly advise Her Majesty that the order made by the Court of Queen's Bench be reversed, that the conviction be affirmed, and that the .said Court of (Jueeu's Bench be directeil to cause the proper sentence to be passed thereon. PKOBATK OF WILI.»i. Douglass v. Smith & al. ' 64. A testator made a -will disposiug of his real and personal property, siibjecting' both to the payment of his debts and funeral ex])enses ; the docnment was signed, sealed and in the handAvriting- of the testator, but it" was not attested, although there was an attestation clause. Pro- bate was refused. NicoL V. Askew ^ 65. Probate of a testamentary paper in the nature of a I'odioil. having been granted by consent in common form, cannot afterwards be revoked, on the allegation that the conditions on which stu'h consent Avas given have not been complied with, there being no proof of fraud or circum- vention practised either upon the court 01 the parties. Stewart v. Stkwart " 66. A will having an attestation clause, but no witnesses, was admitted to probate. 1 St. Vinccut, 1833 Jun<.' 22. II Kiuipp 1 2 .lamnica, 1837 Dee. 4, II .Moore SS. 3 Canterbury, 1838 Feb. 10, II Moore 193. 350 EVIDKNCK I PKUII VTi: OF IVIM.N. Mr. .IrsTicE Ho^anqukt, p. 11)7: — it is cortiiinly a riilo of the Kfflcsiiistifiil c'oiirls that a jd'osiuuption arisi's against a will if an attestation elause is appended, but no witnesses; sueh i)resinn])tion, it is admitted however, may he rebutted by very slight evidenee. Bakkii v. Batt ' 67. A party who demaiuls the probate of a Avill is boitiul to prove the j«-eiiuiueness aud aiithoiitieity of the will ; aud if the .judge is not Judicially satisfied that the paper in question does ^Bleontain the last ■will and testament of the deceased, he is bound to refuse its admission to probate. Baron Parice, p. 151!) ; — For if the party u])on whom the burthen of the ])roof of any fact lies, either upon his own ease, where there is no conflicting testimony, or upon the balanee of evidence where there is, fails to satisfy the tribinial which is to ilecide of the truth of the proposition which he has to maintain, he must fail in his suit. And thus in a Court of Probate, where the onus prubandi most un- doubtedly lies upon the ])arly j)ro])<>unding the will, if tliecoiiscience of the judge, U])on a careful tind accurate ci)nsiderati(Ui ofall the evid- ence on both sides, is not judicially satisfied, that the jiaper in (jucstioii does contain the last v ill and testament of the deceased, it is bound to pronoimce its opinion that the instrument is not entitled to pro- liate. And it may frequently haj^pen tlnit this may be the res"lt of an inquiry in cases of doublfid comjietence in j)arlicular, without the imputation of wilful jierjury on either side; ov it may be, the judge may not be satisfied on which sitle the ]icrjury is conimitteil, or whether it certainly exists. HiTCiiixos V. "Wood i^ ai,. ' 68. According to the rule of practice of the Ecclesiastical court, ])robatc Avill not be granted on the sole evideiu-e of the hand-writing of a testator where the will is disputed. There must be coniirmatory [)roGf. In this cause a holograph will sent by post to a legatee, and partially torn across and burnt, was admitted, the handwritting of the testator was admitted, and there was coniirmatory eviden(;e as to the genuineness of the instrument. LoHi> Lynuiiurst, p. 443 ; — But accordiiig to the rule of ])ractice to which I have before adverted, t!ie Kcclesiustical court will not grant probiite on the sole evidence of the hand-writing ot a testator where that is di^iaited. There must be some coutiniiatory |iroof ; this eonfirinatory proof must evidently vary with each pariicuiar case, and would require to be more or less stringent according to the weakness or strength of the evidence as to the hand-writing. 1 Ciiiiterbiuy, 1S38 May IG, 11 Moore ol7. 2 Canlcrhury, 1838 June ;;o, II .Moore 3."i5. EVID KXCE SSI PROBATE 4>F WIM.S. IUrry v. El tmn ' 69. Although the onus of proving a will is on the party pro- poiaudiug it, he is in general discharged by proof of capaeity i! lie testator, and by the fact of the execution of the will, from which the knowledge of and assent to its contents by the testator will be assumed. This case affirmed in Browninii; v, Ludd by Mr. Baron Parke. H.\TEM.\N V, PeNNI-NOTON '' 70. i'robate granted of a paper written in ink, but dated and signed in pencil, with the addition " in case of ac- cident, I sign this my will," having also an attestation clause unsigned. On reversing the decision of the Prerogative court rejecting an allegation pleiding circumstances to entitle a paper to probate, the Judicial Committee retained the cause, and ultimately, after live witnesses had been examined by commission, granted probate of the instrument. 71. The legal presumption against the paper was that /trimu fade any alterations in pencil are deliberative, and those in ink final. ' DlFAtR V. CkhKT * 72. A codicil prepared by a solicitor, not the ordinary solicitor who had made the will of the testator, appointing him a joint executor, with a legacy of jGoOO, w^hich ^.vas read over to the testatcjr. w^ho w^as blind, and, at the time of execution, of lluctuating capacity, in the presence of the attesting vvitnesse,<. pronounced against. There was no direct evid(Mi. (' that it was prepar 'din conse(|uence of instructions from the testator, or satisfactory proof that at the time of the execution he wan cognizant of it.s contents, and in a con- dition to exercise, and did exercise, thought, judgment and rellection respecting the act he was doing. Harwood v. Eaker ' 73. Probate refvxsed of a will executed by a testator on his death-bed in favour of his wife, to the exclusion of the other members of his family ; it being proved that the testator was of a weakened and impaired capacity, at the time of the 1 Clint- 1 bury, 1838 Dec. 8, [I Moore 480 2 Canteibury, 1840 July 10, III Moore 223. ;i Ilawkes v. Hawkes, 1 Hagg. Ecc. Rep. 321 4 Canterbury, !840 Feb. 14, IH Moore i:i6. 5 Canterbury, 1840 Dec. 17, III Moure 282. Edwards V. Astley, 1 Pliill. Rep. ;i5. • 352 EVIDENCE IMlOIIATi: or WII.I.N. writing ol' the Avill, iroin disease iiffcctiug the braiu, which produeed torpor, uud rendered his mind incapable oi' exertion unless roused. The disposition in the Avill was a total dei)nrture from, and contrary to the previous expressed in- tentions ol' the testator. Mu. .hsTicE Hrskine, p. 2!t7 : — Tn all cases the party pn poundhig is Ixiuiid to prove, to the satis-liK'tioii (jf'the court, tliU dio paper in ([iK'stion doe^< contain the latrt will and testament of the decoa.sed, anil this ohligation is more especially cast upon him when the eviilciice in the case shows that the nund of the Testator wa.s generally ahout the time of execution, incompetent to the exertion recpiired for such a purpose. Edwards v. Finoham ' 74. A will executed by a solicitor at the reqiiest of a blind testatrix was declared established, although not proved to have been read over to the testatrix. It Avas sufficient, as proved, that she had a clear knowledge of the contents of the instrument before .signing it. lIoTT v. Geuge ^ To. The mere circumstance of calling iu wdtuesses to sign au holograph will, Avithout giving them any explanation of the instrument they are signing, does not amount to an acknowledgement of the signature by a testator, sufficient to ol)taiu probate. Jones v. Godrecii ' 76. Remarks of their Lordships on the proof required to obtain probate of a will, on the occasion of a probate de- manded by a medical man, the universal legatee of au old man residing with him : The IliGHT Hon. Dr. Ll'siiingtox, p. 20 : — The extreme age of the deceased will require stronger proof as to capacity, because at periods so advanced, the mental faculties are often found to decay and iluctuate ; so when a will is made in favour of a medical man in whose house the Testatrix is resident, the court must be upon its guard against imdue intlm nc<\ for practising which there is so much opi)ortunit}- ; and where a will under such circumstances is made by a solicitor who luid no previous knowledge of the deceased, the court must be sure that he distinctly understood her, and acted as her agent, and not as the agent of the legatee, who sent him. The law of Enijland has ]H'escribed no restrictions upon testa- mentary dispositions, as to who may be the legatees, \Yhere that pon-er is exei'cised in favour ot guardians, trustees, solicitors, medical 1 Ciiuterbury, 1842 Dec. 9, IV Moore 1'J8. 2 Caiiteil)ur\-, 1814 Feb. ^r; [V Moore 2G.i. 3 Canterbury, 1844 Dec. 11. V Moure 'jO. i^m EVIDEXCE 353 PRORATF OF WILI.N. attondiin.'s, or persons standing in u similar relation to tlie deceased, the degree of proof required will be greater or loss according to circumstances; but if the cuiirt be satisfied that there was adequate caijacity, testamentary intention, untainted by fraud, and a due execution, the instrument is solid. Fraud cannot be presumed, but the circumstances may render fraud so probable, that the court will require stronger proof, than in cases where all natural presumptions are in favour'of the disposition, and the free will of the testator P. 25 : — Jf there is an}' rule in testamentary law firmly estab- lished, it is this, that the witness shall state all the facts from which he draws his conclusion, that a testator was of sound mind ;it the time of the execution of a testamentary instrument. The court forms its judgment principally from the facts, and not from the opinion of witnesses; and many instances have occurred in which the decision of a court of Probate has been ojiposed to the conclusion drawn by the witnesses, though the founilalion of each opinion was the same facts P. in. To invalidate a will on the ground of fraud antl undue in- fluence, it must be shown that they were practised with respect to the will itself, or so contemporane(nisly with the will, or connected with it, as b}' almost necessary presumption to att'ect it. Other fraiids committed against a testator are onh' evidence to raise strong- suspicion against any act done under the superintendence or by the interference of those committing them. Mitchell v. Thomas ' 77. Proof of the actual reading over of the iiistrumeut to the testator, liefore exeentiou, is not uecessary. Waring v. Waring ' 78. Probate of a will will be refused Avheu the testator, at the time his will was made and published, was labourino- under a delusion or "was attacked by monomania or partial insanity. 79. if the mind is unsound on one subjecjt, provided that unsoundness is, at all times, existing upon that subject, it is erroneous to suppose such a mind is really sound on other subjects; it is only sound in appearance, for if the su])ject of the delusion be presented to it, the unsoundness would be majiifested by such a person believing it is the suggestion of fancy, as if it Avere a reality ; any act, therefore, done by sucli a person, however apparently rational that act may appear to be, is void, as it is the act of a morbid or unsound mind. 80. It would be evidence of a lucid interval, if the party freely, voluntarily and without any design, at the time of 1 Canlerhiiry, 1847 Dec. 10, VI Moore ITi. 2 Canterlairy, 1848 July 4, VI Moore 341. 23 354 EVIDKNX'K ?' f- i>R4>itAi'i: or wiM.s. alleij^'ed sanity ;uid Ireodoiu from delusion, should confess his dt'lusion. 81. Whi-re delusions are proved to have existed, both before and alter the inakiuy of a will, the presumption is, that they existed at the time of the making of the will, and in s-ui'h case, proof of a hieid interval, at the time of the Ik'-tum, is liirown upon th(> party propounding the will. It is immaterial that the delusions do not appear on the face of the Avill. Jitnw ]\\invr,n\M explahicd as foUoics the doetn'ne of monomania, /Kirtial imanlfi/ aw/ delusion, p. ;i48 : — Tlie qucslion Iming, wliolher ilio will was 'iii ot'MHiiid iniiid or not, our iiupiiry, of com>i', is, w'l'thor or not ilic pai'ly ])(,-8ossod his liicultios, aiul possessed tliera in a healthy stale. His menial powers may be still >ulisistiiig ; no disease may have taken them away ; ami yet they may have been art'eeted wiili disease, and thus may not have entitled their possessor to the a]>]iellatioii ot'u jjerson who>*> mind was sound. ^\gain, the disease atlecting them may have been more or less general ; it may have extended over a greater or a less portion ol' the understanding ; or, ratiier, we ought to say that it may have atfected more, or it may have sitteeted fewer, of the mental faeuliies. For we mtist keep always in view that which the inaccuracy of ordinary language inclines ii> lo tbi-gel, that the mind is one and indivisible ; that wiicn we sjieak of it-, different jiowers, or litciilties, as memory, imagination, consciousness, we speak metaphorically, likening Ihc mind to the body, as if it had members or compartments, whereas, in all accuracy of >)i('ech, we mean to speak of the mind acting variously, that is remembering, fancying, reflecting, the same mind in all these o[)eraiion> being ihc agent. \\'e, therefore, cannot, in any correctness of langtiage, .--peak of general or partial in>anity; but we may most accurately ^])eak of the mind exerting itself in ccmsciousuess without cloud or imperfections, but being morbid where it fajicies ; and so its owni'i' may have a diseased imagination of the imaginiition may not be ^li^eased. and yet the memory may be impaired, and its owner be said lo have lost his memory. In the>e eases, we do not mean that the mind has one taciiity, as consciousness, sound ; while another, as memory or imagination, is diseased ; but that the miml is sound when reflecting on its own ojjerations, and diseased when exercising the combination termed imagining, of casting the retro>])ect, called recollt'cling. This view of the siUiject, ihough apparently sim[ile, ami almost too unquc:-iionable to require, or even to Justify, a formal statement, is of considerable importance, when we come to examine cases of whiit are called, incorrectly, ■' partial insanity " which would be better described by the plim.-e "insanity" or '•unsoundness" always existing, though only occasionally manifest, Xothing IS aiore certain than the existence of mental disease of this descri])tion. Nay, by t'ar the giviiler mnnber of morbid ca>es belong to this class. They have ae(piired a name, the disease called If KVIDKXCK 355 (•oules.s d. both tiou is, ill, ami i of the he will, on the PKOIIATK or WIL.LK. rainili.a-ly, us well as by Physicians, •' Monomania," on ilic siipitosi- tion ol'its being eontined, whicli it raivly is, to a single faculty, or exer- cise ol' the mind ; a jiersun shall be ofsomid mind, to all appearenoe, upon all subjects save one or two ; and on these he shall be subject to (lelu.-ion, mistaking lor realities, the suggestions ofliis imagination. The diseasi^ here is sttid to be in the imagination; that is, the jiatitMit's mind is morbid, or unsound, \vheii it imagines ; liealthy and sound wlien it remembers. Nay, lie niay be of unsound mind when his imagination is employed on some subjects, in making some combin- ations ; and Miund when making otliers, or making one single kind of combination. Thus, he may not believe all his fancies to ho realities, but (July some, or one ; of such a ]>erson we usiudly jiredic- ;ite that he is (jf unsound mind only ujion certain puints, I have (lualitied the proposition thus on purpose, Ijecause, if the being, or e-sence, which wo term the mind, is un--oundon one suiiject, pr(n'ided that unsountlness is at all times existing upon that subject, it is quito erroneous to suppose such a mind really sound on other subjects. It is only sound in a[)pearance ; for if the subject of the delusion bo jiresented to it. the unsoundness which is manifested, liy believing in the suggestions of fancy as if they were realities, would lireak out ; consecpiently, it is as absurd to speak of tliis as a really sound mind ; (ii mind sound when the .subject of the delusion is not jjresented ;) as it would be to any, that a person had not the gout, because hi.s attention being diverted from the pain, by some more jxiwerful si^-nsatiou by which the ])erson was atfected, he, for the moment, was unconseious ofliis visitation. It follows, from hence, that no conlidence can be placed in tho acts, or in any act, of a diseased mind, however apparent!}- rational that act may appear to be, or may in reality be. The act in question may be exactly suidi as u jjerson without mental intirmiiy might well do. Eut there is this ditference between tlie two cases ; tho person uniformly and always of sound mind, could not, at tho moment of the act done, be tho prey of morbid delusion, whatever -iulijectwas presented to his mind; wherea> ; ilie person called partially insane, — that is to Mty. sometimes appearing to be of sound, sometimes ol' un--ound mind, would inevitably show hi-, hub- jection to the di^^-ase the insuint its tojiie was suggr-.ied. Thereforo we can, with p Tfecl contideiKV, rely on the act clone by the . -rmor, because wo are sure that )\v> lurking insanity, no particular, or partial, or occasional delusion, does mingle itself with the jierson's act, and materially atleet it. I'ut wo never can rely on the act, however rational in appearance, dont^ by the latter, liecause we have no security that the lurking delusion, tho real unsoiindnes;. does not mingle itself with, or oeca>iun the act. We are wrong in H])eaking of [)artial unsoundiuss ; we are less incorrect in ^[leaking of occasional unsoundness ; wo should siiy thai the unsoundnesH always exists, but it requires a reference to tho peculiar lopii', else it lui'ks and appears not. But the malady is there, and as the mind is one and the ^ame, it is really diseased, while apparently sound, and really its acts, whatever aj))>earance tluy may [ml on, are only the acts of a morbid or unsound iiiind. i \ MSf! l*ROnATK OF WII I.N. KVIDJONCK rnlcss this n^iisoning bo well luumlcd, wo Ciiiinot acomint lor llio miiiniinity willi wliicli iiion always a<;Teeil in rogarding- as tlio acts of an insane niiml, those acts to all apjtoarance rational, which a ])erson (loos who lahours nndor delusions of a plaini}- extravagant nature, though there is nothing in the act done, and nothing in tho conduct of the party \',hile doing it, at all coiniected with theniorbitl fancies. Jf those fancies only ailect the party now and tluMi ; ifi'or some months he is free from them, labouring under them at other times, then his acts apj)arently rational would not bo regarded as those of a i)crson mentally diseased. ]}ut if wo were convinced that at the time of donig the acts tlio flolusion continued, and was only latent by reason of tlie mind not having been ])ointod to its subject, and would have instantly sliown itself, had that subject been presented, then tho jw;t i.s at onco regarded as lliat of a nuidman. Thus, there have been many cases of persons hibouring under tho delusion that tliey were othoi' than themselves ; some havi' believed themselves deceased Emperors or Conqut'rors; others, su])or-natural l)cings. Su])pose one, who believed himself the Emperor of (termany, and on all other subjects was ajjparently of sound mind, did any act reciuiring mind, memory, and understanding. 8u])])0se ho nuido his will, and either did not sign it (before signing was re([uire(l), or if he did, signed with his own name ; but suppose wo wei'o quite con- vinced that had .any one spoken of tho Gernninic iJiet, or ])roceeded to abuse tho German Emperor, the testator's delusion would at onco break forth, then we must at once pronounce the will void, bo it as oflicious and as rational in every respect, as any disposition of ])ro- ])erty could be : of course, as no one could ])ro]iound such a will with any hojies of probate, if it hippened, that, while making it, the delusion had broken out, even although the insti'umeni bore no marks of its existence at the time ot its concoction it mwst always be a question of evidence, on tho whole facts and circumstances of the case, wliether or not the morbid delusion existed at tho time of the factum ; that is, whether, had the subject of it been ])resented, the chord been struck, there would have arisen the insane discoi'd, Avhich is absent to all outward appearance, from tho chord not having been struck. GUEVIM.K V. TVLKE ' 82. "Where a will is prepared aud writteu by a iiit^dical man in attcudauce ou a testatrix, at that time daugerously ill, and withoiit proiessioual advice, by which he is made the principal object of the testatrix's bounty, to the exclu- sion of her near relations, a court of justice, regarding the relation of a medical man to his patient will view his oondixct wath the utmost jealousy. 1 Canterbury, 1851 Fib. 8, VII Moore 320. ■^31 KVIDK.NX'I-: 367 PROnATK Of W1M.S. I5nn\\ Ni.Vd V. l)riiii 83. Tht! onus //whamli is on ii piirty ,soekini>' tht^ prol>!itt' oi' a will that it is the last and five will of the testator. The change of opinion, after a testamentary act long premedi- tated and delibenitely adopted, is of little weight, l)ecaustf persons, though quite competent, are often governed by caprice in the selection of the objects of their 1)ounty ; but when sueh a chaiiye takes i)lac(^ suddenly, and ])y a wife in I'aA'our of her husband, when this latter is carefully ex- cluded from all intercoursi; with his wife, and that in the last moments, and by the family the head of which is much b(;nelitted by the change, those who are guilty of such an improper act expose themselves to the most serious suspi<'ions of fraud or indue inlluence in procuring the will, which it has evidently been their object to obtain. However, in this cause, other circumstances justilied the probate of the will. ( 'l TT.V V. (ill.llKKT '' 84. Probate of a will made in 1825 was granted by the Judii'ial Committee. Subsec[itent to the order in Council, a will dated March IBVl was discovered, and application was made to the Judicial Committee for probate. This ap- plication was refused, as the original suit being concluded, the jurisdiction of the Committee was exhausted. But the Com- mittee intimated that if a petition was presented to Her Majesty to refer the matter specially to them, they would entertain the application. Upon sueh application being presented and referred, the committee revoked the probate of the will of 182o, and granted probate of the will of 1851. JJrEMER v. I'^IIEK.M.W ' 85. A party impeaching a will must prove that it ought not to b(! admitted to proof; but Avhere the evidence shows that the testatrix had abandoned her Encjlish domicile, and took another one in a foreign country and died in the ac(|uired domicile, the aims probandi is in such circumstances iipon the party ]n'opoiTnding thi> will to prove that the law of the acquired domicile was such as to authorize a will in the for' 1 propounded. SCOIT.ES V. Pl.dWKHinT * 86. As a general rule, where there is execution and capacity of execution, the validity of a will is sulficieutly 1 Uluiterbury, 1848 Dec. 13, VT .^^oo^e 431. 2 Canterbury, 18.")4 July 7, l.X Moore vn. 3 Canterbury, IS.'iT March 7, X Moore 30i). 4 Canterbury, 1830 June 2G, X Moore 440. I' i! H5S KVIDIIXCI": PROilATi: OF WIM.N. cshihlislii'd. Wlicro, ho^\'('V('l■. th(( will is pvepurud l)y a piirty prinripully hoiu'litti'd, aud the (■ircuiasttincos are suw- pi('iou>s. :ni oxiteptiou to this ruli' prevails, and it is iiecfssary to prove to the satislactiou ol' the cuurt that the testator had full knowledge ol" the instrument aud its contents, aud exeeuted the same Iri'ely, Avitliout any undue control. 87. In this case the will was written by the party l)eue- fitted, to the exclusion of the testator's family, the evidences showed no previous declaration of the testator of an intention to make such a will, and no subsequent recognition by him of its contents; but, on the contrary, the evidence esta- blished, from the whole conduit of the testator, that he executed the will in ignorance of its contents, Avhile actinu' under the control of the partj' principally beiielitted. The ■\vill was declared null aud probate was refused. I'hixski' and The Ivvst Inufa Cdmi'anv v. Dvce .Sumdhk i\; ai.. ' 88. The presumption of law is, that the verdict of a jury, under a commission of liinacy, that the party, the su1)ject of the commission, is of rinsound mind, is well foitnded ; and, if the commission remained txnsuperseded. that the party continited a lunatic at his death. Such presumption, how- ever, may be rebutted and displaced by positive proof ot entire recovery, or possession of a lucid interval, when the testamentary instrument A\'as executed. 8!i. The onus jirohnndi lies upon a ]iarty setting np a will, made during a subsistence of a commis.sion of lunacy, to establish the affirmation of complete or partial recovery of the lunatic at the time of giving instructions I'or aud executing the will. The iJiiiHT Hon. ])r. LisniN(iTON. ji. 23!t:— Wc apprehend tiiat, though the opiuiojis oftlie phy.^icians who so earet'iilly examined the deceased, and testified to his souiKhiess of inind, are entitled to Aveiglit and cunsiilei'ution. yet that tlie eoiiiinission not iiaving been snpcrseiled, the K'n'al pi'esunqitinn is ai^ainst the soliijity of any testiimiMitary instrument ; and Odnsequently tlie oiam of jiroving the soundness ot'mind of tlie teslator is imposed ujion the ])arty setting- up the in.strument. We will observe tliat. though tlio cases are rare, yet there have been some instances where the vahilitj' of a will has been pronounced fr.r, notwithstanding tliat tlie testator was, at the period of malcing it, luider tlie pi'ott'ction of a eommissidii. as in the case i)f Cartwri'jht v. Cartv:riijht. '' Under such circumstanees, it is competent to the ]);irty selling up a testainentarv instrument to maintain: l'7;'sf, either tiiat the dc- 1 Oaiiterbuiy, 185G April 16, X Moore 2.32 2 Pliill. Ecc. Rep 00. ^^^=^ IIVIDKNCK 369 PHOn\TI' OF WII-l.S. council was iilwiiys ol' hoiiml niii'l; .ii'.coHiU//, XhiH llioii^li lif may iiivc lit'oii fornn'i'ly of uiisoiukI miiid, lie liiid ciiliroly aiul cum- |iloli'ly ivfovfivil ; or, thirdhi, tlial tlic will was iiiaiU' diiriim' a lucid iuk'i'val. Li.Hvi) V. J?iiHEUTs ' 90. If a will apptnirs upon Iho fiicc; of it to have hw.n prn- jierly oxertitod accordinji' 1o the rcquirt'monls of the Wills i\<'t.'l Virt., eh, 2(), till' presumption of hnv is, that the to- l;itor duly arkiiowlodgt'd it. ill. Thi' -will in this fa.se Avas entirely in the handwritinu' (d' Iho testator Avith an attestation danso in its propi-r place, and attested by two witnesses, The Avife and danyhter of the testator opposed the i->rol>ate of the Avill on the u'round Ihat it Avas written after the Avitncsses attested the Avill. One ot the attesting Avitnesses was dead. The otlna' deimsed that Avhen he signed the Avill, AA'ith the exception of the testator's signatnre, and the signature of the other attesting Avitness, the paper AA'^as blank. The Committee held that from the appearance of the Avill, as Avell as the ('ircuinstance that th(? testator AVas a pro- I'essional man Avell ac([uainted Avith the necessity of a proper cxeciition, and the presumption of huA^ that the aahII Avas Avritten Avhen attested, and had been duly acknoAA-ledged in the Avitnesses' presence notwithstanding the testimony of the survi\'ing attesting Avitness, Avho, in the opinion of the Judicial Committee, must haA'e been mistaken, or his memory failed him. 3Il(iNKALI,T A'. MaI.O '■' 92. According to the uninterrupted practice and usage of the courts in Lower Canada, the grant of probate is not of that binding and conclusiA'e character Avhich attaches to it in England, and does not ])revent the heirs fromimpugni'ig the validity of a AA^ill in their defence to an action brought by a legatee under th(! Avill. Sru JJniiKUT riiii.M.MouE, p.lJU'i: — There is no doubt that a probate in England granted in solemn form after due citation of parties would liave this etl'cct. And it is certainly much to be lamented if a rule of law and prsictice sr> obviously conducive to the interests of Justice and the quieting of litigation does not prevail in Canada. Their Lord-^bips, therefore, desired this part of the case to be argued separately. The result is as follows : Previously to the year 17T4, and tlie passing of the Im])erial 1 Cttutcrbiiry, 1858 Feb. IG, XII Moore 153. 2 Lower Canada, 1872 Jan. 15, VIII Moore X. S. 347. IMAGE EVALUATION TEST TARGET (MT-3) t= 1.0 |5o ■^" B^W 2.2 1.1 l*^ H^ BiS. IJ5 i U ■ 1.6 ^ y] V y >!^ Photographic Sciences Corporation 23 WfST MAIN STRKT WIBSTM.N.Y. M580 (716) •72-4503 ^ i! H I i 300 EVIDENCE PKUBATK OF WILLS. Statute, 14 Geo. 1 1 J., cap. 83, wills, according to the Common Law of Canada, could be made only in oneofthree ways : 1. Jieforo two notaries. 2. lielbrc a notary and two witnesncH. 3. JJy a holograjju writing which did not require witnesses. The Statute (or (Quebec Act, as it is usually called) 14 Geo. TTI., cap. K5, however, introduced another form of will, enacting (section 10), " That it shall and may be lawful to a: ' lor every person that is owner of any lands, goods, or cre. Ill", c. 4, s. 2, incorporated in the Consolidated Statutes, c. 34, s. 3), provided as follows: — '"Whereas doubts have arisen touching the method now followed of proving hist wills and testaments made and executed according to the forms prescribed by the laws of Kngland, before one or more of the Judges of the Courts of Civii Jurisdiction the same force and effect as if made and taken before a Court of in the province ; be it therefore enacted that such proof shall have bef Probate." At rirst sight it certainly appeared to tlieir Lordships that tliis language availed to introduce the law of Kngland withresi)ecl to the conclusiveness of a probate duly grantetl, into the law of Canada; and t hat where, as ol a pi in tl> present case, a suit as to the validity of a wil had been contested in open Court, both parties a])pearing, pleading, and one examining, the other cross-examining, witnesses, and probate had then Iwen granted, the same question could not be raised again, at all events between the same parties, before another tribunal ; but ihat the production of the probate would operate as an estoi»j)el to any such action. This, moreover, appears to their Lordships to be the true construction of the words, " such proof sliall have the same tbrce and effect as if made and taken before a Court of Probate." Their Lordships, however, think that they cannot consider this matter now as res inttgra. They cannot disregard the jjractico of the Canadian Courts witli respect to it for the last seventy years, and they have therefore made as careful an investigation into this ]»ractice as the circumstances permit. It appears, in the lirst place, that no appeal has ever been insti- tuted from a Decree or Grant of Probate made by the Court — that EVIDKNCK 361 a Law in., M'C'tion )n (liat and ill his or bi'- te.sta- iii the NllOll la, or PROBATE OF WILLM. it i8 very (loul)tfiil wliotlior any alK'f^ation or plea as to tlio merits, lor instance, a }»lea or allej^alion betting ujj insanity or nmiue in- fluonco, eoiild be propoiiivleii, or would be admitted on an application for probate. It is enacted by the 2;{rd section of the 78th chapter of the Con- Bolidated Statutes of Lower Canada, in the year 18(J0, that *' any Judge of the Sujjerior Court, at any place where the said Court or the Circuit Court is appointed to be held, shall, in any Court or out of Court, in term or out of term, or in vacation, and any ])rotho- nolary of the Superior Court at the place where his ottice is therein lield, shall, out ot' Court, but in term or out of term, have, and may exerci-e within and for the district in which such place as aforesaid lies, the same power and authority as is then vested in the Superior Court and the Judges thereof, in what respects the probate of wills, theelection and appointment of tutors and curators, as well under the general law as under the j)rovisions of chapter 8" of these Con- solidated Statutes relating to Insolvent Debtors, or any other Act, the taking of the counsel and opinion of relations and friends incases ■where the same are b}' law rei|uired to be taken, the closing of in- ventories, attestation of accounts, iiuvnitatioiuf, affixing and taking olf seals of safe custody, the emancipation of minors, the homologa- tion or refusal to homologate [)roceedings had at any avis Jc jKtrcnfs called or held by or before any notary, and other acts of the same nature requiring despatch ; and the j)rocee(lings in all such cases *ihall form part of the records of the Su|»erior Court at the place where thev are had, or of the Circuit Court at such place, if the ^Superior C'ourt be not held there." (2.) " But the apjtointments and orders made by an}' prothonotary under this section, or made under the same by any Judge out of Court, shall be liable to lie set aside by any Judge of the said Court, sitting in the same district in Court and term, in like manner and under the j)rovisions of law in and under which appointments and orders made b3'one or more Judges out of Court, in matters requiring ilespatch may be set aside by the Superior Court" (12 Vict., c. .'JH ; I'O Vict., c. 44, s.ill.) In the Civil Coile of Lower (Janada, which became law in 18G(J, therefore, before the making of the will in question, if is enactetl (section H, ^ 85(J.) " The originals and legally certified coj)ie8 of wills maile in authentic form, make proof in the same manner as other authentic writings." (J^ 857) " llolograjih wills and those made in the form derived from the laws of J'Ingland, must lie presented for probate to the I'ourt exercising superior original jurisdiction in the district in which the deceaseil hail his domicile or if ho had none, in the district in which he died, or to one of the Judges of such Court, or fo the prothonotary of the district. The Court, or Judge, or the prot'.ionotary, receives the depositions in writing, and under oath of wi'.nesses competent to give evidence, and these depositions remain affixed to the original will, together with the judgment, if it have been rendered out of Court, or a certified copy of it, if if have lieen rendered in Court; i)arties interested may then obtain certified 1 :\c,-: KVIDKXCR I l*HOII;%TK OF «'II.I.N. (•(.|ii<'- of till' will, tlic ]ir(>of. and the ju(lf,'nioiil. wliifh copies are ■•nitliciitii, imil yivo I'llV'Ct to the will until it i-* >et asido upon dui- tcHtati m. " it' the ori^'iniil ol'tlie will laMJepusitod with a iiotaiy. the Court or .Iiuliic, or tlu'prf)tlionolarv. ca'i-es >iicli original to Ik- ." ( |- sr)S,) "Tlu' lu'ir ortiic ilecoased need not be huminoned to tiie jdoliatc tliiis made of the will, excopt it is so ordered in jiaitieular cases. ■• Thf functionary who takes the i>rohale takes cognizance of all that relates to the will. '' The probate of wills docs not prevent their contestation by jKTson- interested." In tin- Kourth IJeport of the Conunissioners whicii jtreeeded the cnacinient of the Civil Code, it is said (p. 17!') : '• The third section treats of the proof of wili> and also of the pre- liniiiiiiry probate, before a .Fudge, of such as have not been made in .•luthentic form. A Mill frequently concerns several parties, by all ot'whi>ni it would be ditlicult to have it acknowledmHl, though these persons and evi-n third partie> lie interested in submitting its valiility withiiiit delay to a jireliminary test. The prcjceeding adopted for thi- ]iurj)o>e is well known in Kniiland and in this country under the name of probate; it is now particularly in use in Kngland when' wills have no form corres](onding with our authentic torm. in the old I'rench law, as well as in the ancient jiractice in this country, trace- are still fnunil ot'a similar probate as regards holograi>h wills. It is not, however, necessary to extend tlu' reseai'ches upon this point, the jtrobate of holograph wills and of wills made in the Kngli>h form having uniformly been ett'eeted in the same manner, which is that of the cijmmon form of ])robate adopted in Kngland, where a more solemn form of probate is also practiced, to which the partiex inti-resti'd are summoned, and by whicii they are bound. Tiiis latter form of probate is not in use in this eountry. unless it Fie compared to a contestet atlix to the grant of probate, even in tlie circumstanies of tFiis case, that liinding and conclu«;ive character wliicli it has in lOnglaiid, and that, according to that interpretation, it was competent to the respondent to impugn tlie validity of this will F»y way of defence to tFic aeiioii bnuight liy the appellant for llie payment of tlie annuity. Their Lordships think tliat tliey ouglit not to advise Her Majesty that a ditl'erent construction ought now to be put upon tlie law. KVIDKNCK •MH nro ei.ii- rt oi- I.].." tlu> •iiliir >l'nll Uy till- l>noOF OF NIOXATlTHi: BY <'unpaki:d iiam>writi\« I>OE DKX DeVIXE v. Wlt.SclX \' AI,. ' 93. It is for the plaintift'to provo the geimineness of tht> Iho signature of a Avitnoss to n deed in a civil suit, not for the party impeaohiug it, as in a criminal proceeding' ; and it is a misdirection on the part of a judge to tell a Jury in ii civil snit, that under such circumstances, they must try the question as to -whether the deed Avas forged or not. in the same manner as if the defendant were on his trial for forgery. Suth misdirection ■will entitle the plaintilFto a new trial. 9i. The handwriting of a deceased witness, made at the time of his examination by commissioners, but not returned ■with the depositions, is sufficiently in evidence to admit of being j)roduced in court i'or the purpose of comparison ■with his signature to a deed the genuineness of which is impeached. !»5. lint a priA'ate letter Avritten by the deceased witness, and which his daughter brought in court, is not in any Avay evidence in the cause and cannot be handed to thejur}'. PR»4»F OF I.\M»I,Vr.X('V. Jones v. McKexzie ' 06. To annul an equitable mortgage under the Insol- vency laAV of New South "Wales, on the ground of insolvency of the mortgagor, absolute proof of this hitter's insolvency at the time of the execution of the deed is required. The affidavit of the official assignee tothatefl'ect is not .sufficient. The case, was remitted to the court beloAV for further evidence. See remarks of Lord liomilly re Barron v. Stuar/. The '• Panama " ; BoTTOMUV and llEsrONDENTiA : right of master to elf'trt loan on. MKItVITl'DK. FltfiillETTE V.La CoMI'AMXIE ^fANrFACTl r.IEKE I)E St. IIvACIXTIIE ' 07. Where a person complains that the Hoav of Avater in a stream passing through his laud has been obstructed by the act of the OAVner of the loAver land, and the defendant st^ts forth in his plea that the plaintifl" by his OAVn Avorks hds altered the natural coiivse of the stream, it is for the plaintiff to prove, in order to make out a case entitling him to relief, that the servitude, as it existed previous to the changes made by himself has been interfered Avith by the lower proprietor. For their Lordships' remarks : 5 July 21, X .Moore 502. 2 .Wmv South \Viik-3, laV) July 19. Xlll >fo..ic 1. 3 yufljt'C, 1883 Xov. 24, I.. U, IX Appeal Cases 170. *rl t '1 864 i:vii)i:xcE t:!' SIIOKTIIA!«iD. TJiKL V. The Qiekn ' 98. A statute vvhioh proscribes that lull notes of the evideuce l)e taken is literally complied with when these notes are taken ii^ shorthand. LniiiJ IfAi.smiiY, p. 30: — The second jioint suf^gcstod usMiinos tlu' viili(lit> of the act, but in t'oumlcdou tlu' assumption that the act itself liad not heon complied witli. 1{\' the 7tii sul>see»ion of the 7<>th section it is lU'ovided tiiiil "the magistrate shall lake, or cause to he talvcn, in writing notes (jf the evidence and other proceeilings thereat; " and it is suggested that tins provision has not heen com- ])lied with, because, though no complaint is made of inaccuracy or mistake, it is stated that the notes were taken l)y a shorthand writer under the authorit}- of the magistrate and by a suiiseercargo, or boatswain, and the coiirt cannot condemn a ship without their evidence. IIOCQITARD & Ali. V. TlIE (ilEEN, ThE ' NkWPOKT " ' 100. In order to subject a ship to forfeiture under the Slave Trade Act, it is necessary to prove that she was employed in contravention of the object of the Act. and that she was so employed with the knowledge of the owner ; and as to the shippers, that the goods had been shipped by them wilfully and knowingly, for the purpose of being so employed. 1 Manitoba, 1885 Oct. 22, .W L. J. P. C. 2S. i v. A. St. Helena, 1856 Feb. 8, X Moore 201. 3 V. A. St. Heleua, 1857 Dec. 8, XI Moore 155. EVIDKNCK 86S MrNPK'IONN IN CRIMIKAI. Nl'ITM. SiiERWiM, V. The Kinu ' 101. Judges must be very lautious uot to coudemu on mere suspicious iu criiuiuiil cases. LoKi> AVvNKuKi). ]). 12: — TluTo cniiiiui lii> a cloultt. 1 think, that there is a groat deal of hiisjiieiun alxnit this ease. Hut I entirely agree with the ai)j)ellant'.s eouMsel that we are not in thi^ ea.se or any other criniinal ea-w to tieeide on suspieion, and that t lie more serious the otieneo is, the greater .»iiuuid he the eautioii ul' the judges bc'lbre they condemn. V*iA«K AN LAW. JjE(ilXA V. HeUTIUNI) ' 102. Louff usage becomes law, and the judges must !ip|>ly it as law, but the courts cannot make that to be law which neither usag^ xior the legislature has made to be .so, liowever Just, reasonable or expedient it may appear. Sir John T. Chi.euhmie, p. 47'.l : — what ion;; usage has no I nor usage lias made to be so, howevei- reasonable or expeilient, or st, or in analogy with the existing law it may seem to he. OIK ,»oii.> 1. ». lu.KuiiHiK, J), -tr-' ■ — wiiai long usage iias ijradually estiililished. however tirst introducecl. In-fomes law; and 10 court, nor any more this ("ummittee. has jurisdiction lo alter it ; lut, on the same ]irinciple, ncithei' the one nor the oiliei- can, in the irst instance, make that to he law which neiii.er the begislaturo .„« 1 -l„ t.. I,.,... I.,......,'.... .1.1.. ;.i: .1" EXCHANGE WIIEX THE COXTHACT IN PKRFM'T. PoHT Cannixo Land Company v. S.mitii ' 103. In an exchange, the contract is perfect when it is agreed upon and the thing exchanged is determined on one side, although it is not defined and si)ecilied on the other side, as Avhere a turther act is required to ascertain it. Sill MoN'TAoiJE K. Smith, p. V3'2: — The case is in this view extremely simple. It is an agroement to exchange, where on the one 8iiit tliiit would nut iillort llii- agivemont, Init would hv a fjiU"»tioii ol'tlio mode ol jiiiinr'naiu'e EXECUTION LAWN AFPl.K'Alll.i: T4» LixusAY V. Ihvy ' 1i*kai.. (idiiK I*; .VI.. V. IJktiiei, \ al., TiiK "<^»iee.\" ' lOo. The judgment of the court below was allowed, jiend- ing the appeal, to be carried into etiect upon the resi)ondents giving sulheient security to abide the event of the appeal. U.\ HAII.WAV. 100. A railway maybe seized lor the debt of the company like any other immoveable. .Set' Redjield v. Corjiora/iun of IVir/iluuii, Vo Railway : liabilitj/ to seizure. c1a1.k of miiipn i'mdkr The •• Kraxciska' and the " Union " ' I'l". A ship and cargo taken as prize having been con- demned by the Admiralty court, Wimc sold under a judu- ment of that court, pursuant to the Prize Act, ITth and IStli Vict., ch. 18, s. 20. The decree was reversed by the appel- late court, and simple restitution decreed. Their Lordships held that as the captors were botnt tiile in possession during the litigation, they were entitled to llie rights, allowance.s, and incidents attaching to such posses- sion, and that the claimants were only, iipon simple restitu- tion, entitled to the net proceeds of the sale after deductiuo- from the gross proceeds the Marshal's charges, consisting of expenses of sale, reasonable expenses for the care and custody of the property pending adjudication, and for pilotage, liuhts, and other dues, incurred in Ijringing the ship to Enizland. EXriiKTS C'0XHTRi;<'TI09r <>F REPORT. Swift v. Kelly ' 108. "Weight to be given to the evidence of persons inter- rogated as experts with regard the law or prineii)les of their own art exposed as follows : 1 ("i yloii, IHiJJ June JO, XV Mooie AWl. 2 v. A. Dftliumas, 18.)8 June 24, XII Moore 189. 3 Ailmiraliy, l«5i> July 1, X Moore 1836. ■I Canterbury, 18.!5 July 1, HI Knapp 289. KXi'Kirrs 367 4'0!VNTRt'('T10.\ OF RKPOIIT. Loui> IJmiCdiiAM. |t. li'^i* : -Wlun lawyers arc callod a- witrn'ssos to ^tal^' tlio law, or when tlio ovideiice of any ullior slvill'iil [icrsons is ailtlmrd i'or tlie i»ur|)o>c of exi)lainin;i; tin- |>rinci|>k's nl' ihoir own art, in which wo ari' Itoiind to givi- thcni credit, they may answer the niiestions jiut in two ways ; tiny nia\- either ^ive a mere opinion or diclir.n, on the .-tatemeni of'vhat the doctrine is, without enter- ing into an\- reasons ; in whieli case we ary hound hy what tiiey deliver, if they he unanimous; and if they dill'er, we ire lell to weiffh the testimony of one against another as hest wo ca i; or they may assign the reasons on wldeli tlieir statement is gro iniled, and then we are not ixnnRl hy the opinion they give, but may exandne thereaxms; and ln'ing, as it were, admitted to see the jiarticaiai's of the calculation, and not merely the result, we may form an opinion for ourselves ; at all events, we may reject the one they give, on linding it is not eomo at ity the reasoning, Jt will thus happen, that when ilivers witnesses have heen examined to the same point, and give ditl'erent >talements or o[)inions with their ri'usons, we limy he enabled to arrive at the truth, notwithstanding this dis- erejiancy, by attending to iho reasons adduced by each. KEFKKKXl'K TO IIl.TCUINSON V. GiLLEI'SIE ' 10!>. Order of ivtVivnot* to take arcounts madt; pnrsuant to the [lowers coutaiued in :5rd and 4th Wm. IV, eh. 41, s. 17, notwithstanding the dissent of the respondent's coiinsel, to the conrt referring the same, Avith order to report to the committee iinally, oi Irom time to time at the re([uest of the parties. The oliject of the reference was to ascertain the amount dne to the estate ot'Wni. Hntchinson. The apjieal was allowed to stand over until after the report of the referee. TlIOMI'SON V. Cahtwuiiiiit '' 110. An order referring to an expert the ([uestiou whether a sum is due or not due is irregular and ought to be reversed with costs ; but costs Avere refused as the same relief might have been obtained in this cause by a rehearing in the court below. See Practice. EXPROPRIATION EVIDENCE IX Beai-dry v. The Mayor & .\h. of Montreai, ' 111. The corporation of the city of Montreal are autliorized by 14 & 15 Vict. ch. 128 to purchase and aiquire, or to take lands for the purpose of public improvements in that city, 1 Lower Canada, 1838 Feb. IG, II Moore 243. 2 Jamaica, 1841 June 21, HI Moore 4'21. 3 Lower Canada, 1858 Feb. 5, XI Moore 1858. f^ it i i ! J if' 1 868 KXI'UOIMMATION KVII»r.\«'K i\ the value whi'ri'ol". if (lispiiltMl. is hy st'clioii (»S, to Ix' uhcoi- lailU'd ilia scs.sioii licld by thf justices of the Peace and (leterujiiied l)y n Jury specially suuiuioiied lor that purpose. 11:2. The.Iudicial C'onnnitlee held that the jury were not of themselves (jualilied to assess the value, without the evideuc** of exjM'rl.s, and that a party clainiiiii>; coin])ensatioii for land taken l>y the corporation was entitled to produce witnesses as to the value; there beiuif no express AVords in the Act, or necessary implication, to take away the rii^'ht to have Avitnesses sworn and examined, and that the Justices of the Peace were wrong' in refusinjr to takri>NTUK.\I, V. Hll<»\VN ' 114. The respoiidout was a Commissioner appointed, nndev the Ciinadiau statute for expropriation, to value the lands reiiuired for public improvements. In determining" the value ol' a property situated in one of the commercial street.s of the city of Montreal, the respondent with the other Com- nii.ssiouers took into consideration the prospeitive increase iu value of the property. The city of Montreal claiming- that to be an erroneous prini;iple amounting to a want of diligence and gross negligence, and for other reasons such ah fraud and venality, petitioned the court for the dismissal of respondent. The Judicial Committee held that none of the apindlaut's allegations were proved, and that the above principle of valuation was right. Sill IIenrv Ke.vtino, j). 184 : — But it is uiinecc.s.H iry hero to cuter u]t()u tlio iliHfussion whicli hoc'ins to liavc lakca jilace in the Ciairl liolow as to tlio exact meaniiij,' of those wonln, hceause their Lonlships are unable to concur in the view tai to the principle to he nilonted in the valuation of land to ho expropriated under this statute. The Superior Court were of opinion that in valuing such land the prospective capabilities of it arc not to be taken in consideration; that this is not a legal element in tlie calculation ; that you arc to look al the land and what is upon it at the time that the valuation takes place; and that you are not to go into what thoy are pleased to term hypothetical or speculative inquiries as to wha' purncsos the land might advantageously bo applied to. Their Lordships arc of opinion that the pros], ctive capabilities of i;ind may form and very often are a ver}* important element in the calculation of its value, and therefore they cannot in the view of tlio Superior Court, which seenis to have supposed that consiileration was to bo absolutely excluded in the valuation under the Act of Parliament. MoRHisoN v. Mayou ,\: AL. op Montreal '■' 115. The report of Commissioners iu expropriation, although not final, must be considered correct itntil it is i>roved to be erroneous. The onus of proving error on the part of the Conr- missiouers lay upon the plaintitts. The action to be taken by the expropriated party is not merely an appeal from the report of the Commissioners, but a claim for an augmentation which admits new evidence. The same doctrine as to the prospective value of laud, iu determining its value, established in the above cause of Tlie Mayor Sc al. of Montreal v. Brown was maintained. 1 Qiielx'C, 1S76 Nov. 11, II L. R. Appeal Cases 1. 2 Quebec, 1877 Dec. 10, L. R. Ill Appeal Cases 148. 24 8T0 KXI'UoPHIATIOX f VAI.l'AIIOM or PROPKHTV. Sill liAUNKs I'kaciick, |>. \7>5 . -It was crjiitfiidoil dm lu-lialfot' llio ltf^|iiiiiiU'iit> tliat, ill order to maintain an attion upon tin* ground nt'irrnr on tlic part ot the ('oininissioiu-rH in ri'>|K-(-t of llio ainoiiiil ConiiiiiH- >ioni'rN was erroneous witli roJi-ri'iiro to llio ovidenco wliitli wan iiddiicrd Id't'oro tlu'iii. It liaw, however, Ik'«'Ii held in the Court o|' Appeal in Canada, in tlio vHHi) nt' J)aeal, there- fore, is whether the evidence adduced in the action was sullieient to prove that there was error on the jiart of the Commissioners as regards the amount of the indemnil}' awanU'd by them. In de- termining that qiiestion, their Lordshijis are of opinion that the prosjicctive capabilities of the land ought to be taken into account, and that for the piirjiosc of this appeal, it may be assumed that some .v tin- ('nniiiii^MioinTs mnUo a total nl' j< l.'»a.(M(5, wliii ii al l>, a tlolh.r'U fipial to C'.H.iMMi, or ii|. ■.laloil lliat mil iimri' than unt'-liall vva>4 tit t'ni- luiililin;; |mii|m>m!n. Till' learned Jinigo lu-l'l vi-rv innpcily ilial llic only «|iU'Hlioii lielWro liifii was ono of liict, wliirli iniiHt l.o dutermineil ' > the t'vidiMU'e given in Imn pi't'i^ence. Tlie real i>.-iie, as ii apjiears to tiieir LonUliijis, i> wa.^ there error oil the part ol' the ( "oinniissioner^ in awardin;^ ii;,,y the .>iiini of iiJ^Iit.tllMl. am', iI'Mt, to what extent were the planitilfr* entitled to an aii;::inentation ot' it ? Till' report ol the Conmussiniu'r-. wliieli inider ilie former law wonid havo lieen tlnal. innsi, notwithstanding the alteration ot'lho law he eonsidi-red correct until it is proved to he i'rroneou> The onus ul" proving error on the part of the ( 'oniinissiuners lay upon I lu' plaint ills. The judginenl of the Coniini'^sioners, as expi \' llieir report, wa-^ enlilh rreal wciy:lit. It <>-et| \n IS not in this ease merely the jiidgnient of a majority. The report was unaniinoiis, ami was om- in which theConiini^^ioner ai>poinle(l hy th.' appellants themselves coneiirred. Their liordships are of opinion that it >houlil si it lie lightly overturned, and ihat llie learned .ludge diil not give itlieieni weight toil. lEo treated the (pieslion hefore him as he would have (lone if he had hail to asM'» the amount of compensation in the first instance, lie said he must doterminu il according to the idenee which he had heard, and In* which he considered himself to e\ he hound as ahsolulely as hewoidd lie hy ovidonce ]iroviiig the item:- of a tradesman's hill. Treating the suhject in that manner, the opinion of llu' Cominis- .sioners had no more weight allached to it than if they had niaih' no report al all. In another part of his judgmenl the learned .ludge ren'arUud: — ■' 1 have to judge according to the i-vidi-nce. As I view the ease, the law no more makes me judge of the value of real estate, apart from the sworn evidence hetore me, than it m.aUi's me judgi^ of the value of pork, or flour, or any other thing of which the v:i'ue is in ([lUistion heforo me. In the one ca>e, as in the other, I can only know what is proved. If tlii.> evidence is initrue, it was the liusiiiess of the deleiidants to contradict it, which they havo not done. If it is true, I have done no injustice in acting upon it." The learned .ludge sei-nis to have taken too narrow a xlvw of his functioiw. It was his duty to make use of his own judgmenl and exiierience in deciding whether the opinions of the wiliie^-cs were .suHicient to outweigh the Judgment of the ( 'ommissioners. In their Lordships' opinion the learned .ludge attached too much im|iorlanco to the opinions of witnesses, which were ehietty of a spcculativo character; and they havo to observe that tlio amount awarded hy him excc'd I l!ie valuation of some of the claimant's own witnesses. Their L ird.-hips, therefore, c .'ISO 382 FABRIQUE POWERS OF THE CI7B£ AXI> MABGCILLIRK EX ('IIAROC. The Quebec Fire Assurance Company v. St. Louis iS: al. ' 1. By the old Freuoh law, the cure and marguUlier en charge, fould iiot together sell or couvey by way of assigumeut, and withoiit the consent of the Bureau de VUiluvre de la Fabrique, any of the rights or property of the Fabriqiie, although they might receive a debt due to it, and, if necessary, subrogate the person who pays to all the rights of the Fahriqtie. Mk. Baron Parke, p. 318: — Tho next remaining objection in, that the cur4 and one marguilUer alone could not make a valid Kulnogation. That they could not ccile or assign by way of sale any of the riiiihts of the church, is beyond dispute. The cure and all the ■nuinjiiUliers must join, and have the consent of the Bureau, to effect a valid transfer of that nature, the principle of the law reijuiring their sanction for the preservation of iho property o*' 'he church. But thai tho mar(juillkr en rhanje may give a logul isc.argo for a debt due to the fabru/ue, actually paid, may be collectetl from Jousse " On the duties o( Marguillicrs " ]>. 157 ; and if the money cannot be received except under the equitable obligation of subrogating the as>urees (as we have shown that it cannot) wc think it follows, that there must be inciilentally a power in one, on the request of tho companj', to execute the proper instrument of subrogation. POWERS OF THE StAROriLLlERS. Cuitfi and MaROUILLIERS of the parish op YERCHfeRES V. The CoRPOR.\TioN op the parish op A''EUCHi;uEs. ' 2. In all qiiestions of importance affecting the parish, the parish priest, cure, and the marguiUiers, church wardens, must «'onsult, and, before acting, get the authorisation of the parishioners, convened in a public meeting called assemh/ee de /larnisse, unless there is a well established custom to the contrary. 3. The marffinllierx chosen by the parishioners are only in- vested Avith a limited power sufficient for the transaition of the ordinary business of the parish, and for the supply of the ordinary necessities of divine worship. 4. This want of authorisation is an absolute nullity, Avhich any interested person may take advantage of. 1 Lower Canada, 1851 Fub. li, VII Moore 318. 2 guebec, IStJ .Ma:cli G. L. U. VI, 1'. 0.:3i. 374 FABRKiUE ^1 ? ! POWKRN OF TIIK MAROVILMKRN. 5, To institute actions or any legal proceedings the mnr- giiillitn must be authorized by a general meeting oi' the parishioners, nnlciss there is a well established custom or usage to the contrary. SiH HoiiEiiT PniLi.iMORE, ]). .'542: — First, was tlie "authorisation" suflicioiit or, the position on whicli tiic Respondents rely, a nullity? Socomlly, if insufficient and a nullity, was it eompotent to the Ees])ondents to plead this nullity, or, in tiio language of in>' French juris])rudence, 'opposer la tin de non recevoir" to this action? Xo question or. the merits of the case has been decided in the Courts helow, or is now mooted betore tlicii' Lordshijjs. Tlie tirst rjuestion, namely, was the "authorisation' sufficient? is the really important and substantial ([uestion in the case. Their Lordships have carefully examined the various authorities wliicli have been cited to them, as well as others upon which it ap- peared 1o them that reliance miglit be placed. It seems to their Lordsliips jjroper U) r.ialarish were derived exclusively from a iif)rtion of the dimes; while the civil authority was not resorted to for the purjiose of enlbrcing rates for the maintenance f)f the services and ornaments and jtrojterty of the church; while what is now known as the office of Marguillier was unknown 1o the civil or municipal law; the argument might have lieen plausihle; hut since the corj)oration called the parish has been legally foumled, ami supported l>y civil and secular authority, every ]tarishioncr has an interest in (he management of its property, ami the argument is without foundation on j)rinciplc. Accordingly the hooks of authority, and the sentences ot French Courts, greatlj' ])rei)onderate in favour of such rights of the parishioners as are claimed in this suit. It is quite consistent with the existence of these rights that the Marguiliiers chosen hy the parishioners should he invested with a limited jiower sufficient for the transaction of the ordinary husiness of the ]>arish, and for the sup])ly of the ordinary necessities t)f divine worship. The law can scarce!}- he stated with more perspicuity than it is in the Xouveim Denisart (358-!)), under the title, " Fahriques des I'aroisses." : Some reference has already l.ieen made to the Arret in the case of St. .lean en Gr(>ve delivered in 1737, which the learned canonist Jhirande under, and which ultimately triumphed. This distinguished French Jurist arrived at the concliision that tlie objection must have been taken before the case reached the Court of Cassation, either before the Judges of the First or Second Instance. Merlin, in his " IJcpertoire de Jurisprudence," titre "Xuliite," ,^ 2, " Far qui les nullites peuvent-elK- otre alleguees? " say.s: And so M. lioUand de V^illargues, in his comparatively recent work " Dictionnaire du Droit Civil," titre " Autorisation Plaider," observes pour I;' I 378 FAliRIQUK POWKRN OF TIIK MARniJII.MKRIil. A catfgoiy whidi embnieos the jn'oscnt caso, " Le point," lliis author adds, " es^ constant," and ho rolurH to several judgments of tlie Court " Cassation " in support of his opinion. Other authorities niii^ht be cited to the same cflfoct. Upon tlie whole, their Ijordships are of opinion thai upon both • [uestions the Canadian Courts have eonie to a right decision, and that this appeal ought to be dismissed Avitli costs. And they will liumbly advise Her Majestj- to this etlect. FALSE INVOICKS >sequent marriage of the father and mother of an illegimate child, coixpled with the fact of the child being always acknowledged and living* with them, was sulhcient evidence, without any formal recognition of paternity by the father. Lord Ja.\ies, j). OS ; — -There was no authority cited to their Lord- ships, and no jjrinciple has been suggested to thorn, on which thoy can hold that there is any particular mode or form requisite to tho 1 Quebec, 1878 Julv 12, L. R. Ill Appeal Cases 1102. 2 No citation is given from tlieir Lordships' remarks as cases of this nature are not likely to occur again. 3 Jersey, 1882 June 28, IX Moore N. S. 87. -*-^SaL, FJLIATiOX 379 LECariMATIOX OF CIIII.DRKN. solidity of such a recognition. Tiio jn'incinlo in all those cases is, that where a man marries awmnanwiio has hud an illcgitimatt* child, whether that child is (henceforth to ho considered tlie legi- niate child of the man must deiiend on the only evidence which can generally- lie given of it ; that is to say, the man's recognition of his paternity, if that is sufficiently and ahundantly itroved. it does not signify in what particular manner that recognition is etfectcd. Sco Makuiaoe. FIRE MAKSHALS CONNTITl'TIOXAMTY. TlIK QlKKN V. CooTE 9. The Act of Quebec- 31 Vict. ch. 32, " An Act to provide for the appoiutmeut of a Fire Marshall for the cities of Montreal and Quebec and to define his powers and duties^ " creating a court to enquire into the causes and origin of fires, Avith all the powers of any judge of session, recorder or coroner, including the power to i-ause the arrest of any suspected person, is loustitutional and within the com- petency of the provincial legislature. FOLLE ENClIfiliE See Sale : re-sale and dvUverij, FOKFEITUKE See Crown Lands, Customs. FOKEIGN ENLISTMENT See International Law : imlem verbis. See Evidence FUKGEKY eodem verba. FRAUD EFFECT OF FR4llDCI.E>rT CONTRACT BETWEEX PARTIES. SiiAw V. Jefkeuy ' 10. A supposed or proved fraudulent intention between two parties toward a third one cannot be taken into con- sideration in construing an instrument, as to the rights of the t'ontractiug parties between themselves, as the deed may be still binding between them. The Lord Justice Knioht Bruce, p. 454 : — AVhen an instrument between two parties has l)cen entered into for a purpose which may bo considered fraudulent as against some third person, it may yot be binding, according to the true con.struction of its hmguage, as 1 Qiiel)ec, 1873 March, IX Moore N. S. 463. 2 Now article 29!)8 & seq. of the Consolidated Statute of the Provitiee of Quebec 3 Lower Cannda, 1800 June 16, XIII Moore 432, liiaiP] w 380 Fi?AUD EFrK<'T OF FRAI'ItlTLE^rT COXTRAt'T BETWEEN PARTIES. hetwi'oii tliomsolvos. It lian not lieen, and could not well lie argued hero that the insitruments wero to have no o])onition ; hut the sup- jiosed Iraudulent intention as to third persons has heen used for the j)ur|io>e of (ictormining whieh of several sui»posed construetionH tiiey were to have l>etween the parties. This is not allowahle. The instruments, therefore, must be examnied in the usual way, to eolleet from their language, as aceurately as may be, the rights wliich they conlerred on the ])laintitfs and defendants respectivel}'. P. 41)2 : — This being their Lordshijis' opinion, foinuled on the ins- truments themselves, it is scarcely necessary toob.sv.rve, that a mere suspicion of ;i frauF FRAlIDVf.RSrT 4'0:«TKAf'T. ll'milliDi'ily wi'i'o wanliMl in Hup|)(irl of a jn'Inciitlo so citininun as lliat to wliidi tla-ir Jionlsliip-^ havi' uflvi-rlcit, it may lio t'ounil in llio case wliicli is ivtiTriMl to in llio jiidf^nicnt nf tin' conrl iit'low: ('litrlic. V. Diiksun.^ In that easo .Mr. .Iiisticc Cronipton says: — •■ Wiicn onci' it is sotlk'(l that a contract indiicoil liy fraud is not void, Imt voidal)lo at tiio option of tlio party defrauded, it seems to mo to follow tiiat wlien that party oxercisos his option to rescind tiic con- tract, lie must lie in a state to rescind, that is, ho must he in such a (•(jndition as to ho ahic to ]iut the jiartios into their orif^inal state hefore the contract." f \ IMTKRFKRKNC'K OF VOVRTN. BlACIIFOIII) V, ClIUISTIAN ' 1.'). A (logroo of woakucss of iniiid, far below ■what would be lu'ci'ssary to justify a coiniuissioii of Iviuaey, if it has l)een taken aclvautage of to proi'ure the execiitiou of a deed, Avill be sulHiieiit ground for setting an important deed aside. LoiiD WvNPoiU), p. 77 ; — The law will not assist a man who is capaMe of lalcini;; care of his own interest, except in casi-s where lie has heen im|)osc(l u))un hy deceit, against whicli ordinary jiriidcnco could not jjrotoci him. If a jiorson of ordiiuxry understantling, on whom r.o fraud has beoii ]ir,'ictisod, niukos an imprudent har^ain, no Court )f .lusticc can release him from it. Jnaileipiacy of considera- tion is not a substantial ground for setting aside a conveyance of properly; indeed, from the fluctuation in jiricos, owing ]irincipally to the gambling spirit of speculation that ludiappily now prevails, it would bo dilHcult to ilctorniine what is an inadequate price foi- anything that is sold: at the time of tiic sale, the buyer probably calcidatos on a rise on the value of the article bought, of which he would have the advantage, lie must not therefore complain if liis speculations are disappointed, and ho becomes a loser instead of a gainer by his bargain. But those, who from imbecility of mind are inca])alili' of taking care of themselves, are under the special protec- tion of the law. The strongest mind cannot alwa^-s c 388 389 3'JO GRANT See Chown lands: possession. aAMINO AND WAGEIUNG coxDiTio!ublic, as by arrangement betAveen him and the vendor, his I)id is to go for nothing. HITIIDKAWAI. OF WAGEK. luiMHLE v. Hill '' 4. The plaiutitt" deposited Avith the defendant 4;200 to abide the event of a match betAveeu a horse of the plaiutitt" and another horse belonging to a third party, but before the day fixed for the ra«.'e, he ga\'e notice to the defendant that he reA'oked the authoritv to pay over the money, and de- manded the return of it. Their Lordships maintained that he AA'as entitled to recover such deposit, the contract by Avay of Avagering being null and void in laAV. GARNISHEE Wilson v. Trail ' 5. A judgment cannot be rendered against a garnishee who has parted with the property seized, unless proof is 1 Bombay, 1850 June 28, VII Moore 2:'.9. 2 S?outh Wales, 1S79 Dec. IG, L. R. A'' Appeal Caaea 342. 3 A'ictoriii, 1S69 July 8, L. R. IM P. C. 3 i. GAKNISIIKE 385 JVIMiMKWT AOAI^TNT made that thu proporty attached holoiigs to tho dof'oiidaut, aud a men; coustrmtivo ownership is not sulficieut. GIFT rOR HCHOOI. PVRPOMEM. In re IIodohon's Snuooi, ' 6. A provision iu a deed of fouiidatiou whieh permits cer- tain persc'vs of the age of manhood to continue at the sfhool, does not mal..e the endowment of this i^harity Ujss an " edu- cational endowment" within the meaning of the Endowed St;hools Act of 186!), than it would have been if no such privilege had been granted to those persons See Legacy. INTKR VIVOS. GOHNAHAN v. (iRICE ' 7. In the case of a gift of moveable property made by a deceased person, at the eve of his death, to a relative, the court will require clear evidence of the intention of the donor aud of tne delivery. 8. A person having a considerable amount of bank notes concealed in her stays and being on her deathbed took the stays and said to her cousin, who was standing by her bed- side, that " she was going to give her these ; " at the same time holding the stays in her hands. The relative then took the stays and put them at the foot of the bed ; but on the deceased saying : " Dou't leave them, take them, keep them, and take care of them ; " she asked for the; key of a box, and the deceased handled it to her ; aud theri'upon she locked them up iu the box. Immediately after the death of the deceased she took the bank notes out of the stays and replaced the stays iu the box. She also took away a watch and several little articles belonging to the deceased, of which she gave uo immediate account, nor did she mention the amount she had found in the stays. The Judicial Committee having regard to the looseness of the alleged expressions used by the deceased of which the evidence itself was unsatisfactory, together with the conduct of the relative in taking other property of the deceased, held, that the circumstances could not be considered to be such a delivery as constituted a donatio mortis causa. Lord Chelmsford, p. 223 : — Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong tempta- tions, present the:i, selves to unscrupulous persons to pretend these 1 1878 June 6, L. R. Ill Appeal Cases 857. 2 Isle of Man, 1862 July 12, XV Moore 215, 25 ^T^ 380 GIFT ^ M i 'i INTER VIVOS. (Icathln'il lionutionfi, that there is always danger of having ar en- tirely t'abrieated case set up. And, without any imputation of fraudulent eontrivance, it is so easy to mistake the meaning of ])ers()ns languisliing in a mortal illness, and, by a slight change of words, to eoiivort their expressions of intended benefit into an uetual gift of property, that no ease of this description ought to |)revail, unless it is supported ]>y evidence of the clearest and most imequivocul character. See next case Richer v. Voyer. PAKoi. EVIDENCE IN DONS MANUELN. See EVIDENCE : mdevi verbis. posnesmion in dons mantjels. Richer v. Voyer ' 9. The Civil Code, article 776, provides by way of excep- tion to the rule, that gifts called dons niannelsmaY he made of moveables l)y private writings or verbal agreement, provided they are accompanied by delivery. The Privy Council held that the anterior possession of the property so given is crjni- valent to delivery at the time of the gift, although the former possession was for anoth(>r purposi*. 10. Dons inanuds must be clearly proved, especially when there is a relation betweeii the donor and the donee such as that of principal and agent. Sir Montague E. Smith, p. 477 : — It was further contended for the Respondent that the delivery was ineffectual in point of law, on the ground that it was made some time betorc the alleged gift, and with another object. The jKiint was fully and ably discussed, at the liar with thu result that ii appears to be the law of Canada that anterior possession of property which ean be the subject of "don iiianuel " is equivalent to deliver}' at the time of the gift, although the former possession was for another purpose. (See Eicard, Traite des donations, chap. IV, sec. 2, dist. 1.) Z>t'W!ofcni6e is very clear upon this point. He says: (Traits des J)onations, vol. Ill, livre III, litre 2, char, -i, sec. 73.) As^runiing, then, there was a sufficient delivery of the certitlcate to satisfy the requirement of the law, the next question to be con- sidered is, whether the agreement of gift is proved. On this point the indorsement and delivery are equivocal facts, consistent bj' themselves with the position of the Appellant either as agent or donor. It was, indeed, contended that, as he held a power of attorney, the indorsement was not required to enable him to receive the interest, but the bank, notwithstanding this was so, may have desired to have Madame Voyer ti own signature. Mr. Justice Caron, in his reasons, has tersely stated the Appel- lant's position : — " II a d(5pos(5 comme procureur, c'est tL lui ^ (Stablir le changement dans son titre et sa possession. L'endossement seul ot d^nu^ d'expli- cation n'a pas cet eli'et," I (^tutbec, 1874 May 2, L. R. V P. (J. 461. HI GIFT 387 t ami moBt POSNESMOX ISf nOJfS MAXirE£,S. Tlio Appellant attempted to prove that the certificate was the oiil}' tlociiment of -Madame Voycr he had in his possession anil that, she kept all others in her own cii.stody. The evidence of this fact is weak; but, assuming it to be proved, it would not conclusively negative the presumption that lie held it as her agent. It is })lain the Bank recpiired the production of the certiticate whenever interest was paid, to enable an indorsement of the payment to be made upon it. Under those circumstances the maxim of the French hiw •' la possession vaut titrc " cannot be invoked with ett'eet. The evidence of the gift thus becomes reduced to testimony of witnesses who speak of conversations with Madame Voyer. Exception was taken by the llespondents in the Courts below to the admissibility of this evidence, and it seems to have been re- jected; liut whether on the ground that it was AvhoUy inadmissible, or was deemed to be, when examined, irrelevant as ati'ordiug no ])roof of a ])resent gift, does not appear. It seems to their Lordships that the parol testimony (jf witnesses is, of necessity, admissible to prove tlie agreement in certain cases coming within the class of "' dims manuels," since it would be incom- patible with the law, which allows such gifts to be made by verbal agreement, to exclude the only evidence by which such an agree- ment can be established. But assuming the testimony given in this case to be fully admis- sible, their Lord,shi|is have come to the conclusion that it is insufli- vicut to p"ove with reasonable certainty that an absolute gift of this property n-as ever made by Madame Voyer to the Appellant. The witnesses who speak to the conversations do not jirofess to prove words of present gitt. The utmost that can be contended for is, that they give evidence of statements of Madame y(jyer, which, it is said, amount to an acknowledgment that she had made it ; but these statements are in themselves so vague, and the occasions on which they were made are so indistinctly described, thai they cannot be safelj- relied on for proof of the gift, especially when they are not supported by the presumptions which arise from other facts ajijiear- ing in the case. In the lirst place, the manner of the deposit is opjiosed to the presumption that a gift of it \vas made at that time. The money was deposited in the name of Madame Voyer, and the account opened with her. It is not clear, from the Appellant's statements, at what subsequent time he asserts the gift to have been made; but he certainly means to allege it was before the first interest was re- ceived liy him ; if this be so. his offer to pay over that interest tc Madame Voyer is unaccountable, and entirely opposed to his preten- tion that an absolute gift had before that time been made and ac^ cepted. It is said by him that he never accounted to Madame Voyer for tlie subsequent interest, but the manner of his accounting with her is not shown. All that appears is, that on two occasions after the deposit, she declaretl herself satisfied witli the administration of her affairs, and gave him formal discharges before a notary. Again, it does not seem probable that the gift of a large sum of money should have been made to the Appellant in recompense, as it 388 GIFT 11 '81 5!J PONNESSION IN DOWN MA.VVEI.N. is waid, of'liis Hcrviccs so Hoon after 3Iadamc Voycrhad given him a valuable piece of land to reward him for them, or that, if it were intended, the Appellant, who knew the law, should be content to rely on the mere indorsement of the certitlcatc as the sole proof of the new gift. It coiikl not be suggested that the motive of the gift was to assist the Appellant in his buiiding operations, for the fact is beyond dis- pute that he borrowed money at 8 per cent, for this purpose, whilst this money remained on deposit at 4 jier cent only. Further, he neither drew out the money, nor changed the account to his own name, nor gave notice to the bank of tlie transfer in Ma- dame Voyer's lifetime. It is difficult to supi>ose that he was not aware of the importance of being able to point to some other act to mark a change of possession, especially having regard to his double position of agent and donee: or that he would have neglected to take some step with that object if he had obtained an absolute and perfect gift of the money. Their Lordships, whilst holding that the evidence fails to establish a valid gift, do not wish to exclude the sujiposition that something may have jmssed between Madame Voyer and the Appellant which led him to take a sanguine view of her intention to benefit him. But, be that as it may. it is obvious that in cases where formal authentication by notarial act is dispensed with, it would be danger- ous for the Courts to support gifts except upon plain and conclusive evidence of the I'.greement ; and it would be especially unsafe to do 80 where an agent sets up a gift from his principal and mainly relies for proof of it upon the possession of a document which was, or at least may have oeen, originally entrusted to him for the purposes of his agency. rkvocation bt nirth of childbkn. - Symes v. Cuvillier ' 11. Accordiug to the old French law, iu force in the Pro- vince of Quebec, before the Code Civil, the gift inter vivos is not revocable by the birth of children to the donor, par sur- venance d'enfants, when the gift is not excessive in relation to the property of the donor, and if it may be presumed that the donor would have made it if she had contemplated children. 12. The Ordinance of 1*731 Si unquam establishing in France the revocation of gifts inter vivos by survenance der^ants, is not law in the Province of Quebec, not having been therein registered. Sir Montague E. Smith, p, 149 : — To ascertain the law of Canada on this subject at the time the donation was made, it has been necessary to inquire into the law as it existed prior to the coming into force of the Civil Code of Lower Canada, which contains the following article 812, 1 Quebec, 1879 Feb. 25, L. R. V Appeal Cases 138. GIFT 389 UEVOCATION OF BIRTH OF CHILDREN. If the Code f^overued the question, this article would be decisive in favour of the respondents; but tlie Code did not como into force until the Ist of August 18GG, about two months after the date of the donation. It was, indeed, contended bv the counsel for the res- pondents that its provisions on this subject became the law of ihe Province upon the passing of the Act. 29 Vict. c. 41, which sanc- tioned them ; but their Lordships are dearly of opinion, for the reasons given by them during the argument, that th'iA is not ho, and that these provisions had not the force of law until tiie time tixed for the coming into operation of the Code. The discussion at the bar, which took a wide range, and was ably conducted on both sides, was directed, in the first place, to the con- sideration of the law of Francj. It appears that the question of the revocation of gifts by the birth of children was for several centuries a fertile subject of discussion and controversy amongst French jurists. This controversy was complicated by the varying juris- ]U"uilcnce of ditt'erent Parliaments. The law which is to be prin- cipally regarded in deciding this case is that of the Parliament of Paris; the Edit of Louis XV (1603) which created tho ^' Conseil Supirieur,'' and established courts of justice for Lower Canatla, liaving directed that the "Coutumes de Paris" should be the general law of the Province: The law of France was drawn from a rule in the Justinian Code, usually cited as the law " Si tinquam," which is in the following terms And their Lordships here established bi/ the foUowin;/ authorities and by discussion what ivas the law of France : Cujas' Opera postuma, !) vol. 31 c. ; Merlin Rep. \o Donation, sec. 7 ; Despiesses, part I, tit. 14, art. 4 sub. sect. 2, Edit. 1750; Arrets de Papon, Donations, livre XI, art. XIX; Damours, Conference de V Ordonnance, p. 324 ; 8alli, Ordonnanre de 1731 ; De Ferriere, La Coutume de Paris, vol. Ill, tit. 13; Ricard, Donations, tit. 3. c. 5, set'. 4; Furgole, Ordonnance de 1731. P. 157 : — Considering, then, that this Ordinance enacts a new law on the point in question, it would not bo of force in Canada unless it had been registered there. The appellants' counsel relied on the in- junction of the Ordinance requiring it to be obeyed "dans tout notre royaume, terres et j)ays de notre obdissanre," but a royal Ordinance, ])ublished after the establishment of " Le Conseil Supirieur " in Ca- nada by the Edict of 1(JG3, did not take effect in that ijrovinco ^^ro- prio vUjore until it was registered : Hutchinson v. Oillepsie, 4 Aloore's P. C. 378 ; Les Soeurs Ilospitalieres de St. Joseph v. Middlemiss, 3 Appeal Cases 1119. GOVERNOR RIGHT OF VETO. In re the St.vtes ov Jersey ' 13. The States of Jersey passed au Act for the erection of a public lunatic asylum which enacted that, provisionally, the 1 JtMspy, 1862 May 14, XV Moore 195. f I 300 GOVERXOR nitilllT OF VETO. iusane be placed, for three years, in a private establishment at the charge of the Island and of the parishes. The lieu- tenant-governor placed his veto on the Act and reported the Act to the Secretary of State who approved it. The Judicial Committee maintained the veto of the lieutenant- governor as constitutional, the care of the iusane being matter of special interest vested into the crown. a POWKRN AXD PRIVILEUES OF Cameron v. Kyte 14. The governor of a colony has only the authority ex- pressly given him by his commission, no delegation of sovereign authority is implied unless by the instructions of the ('rown to him, and an act done by him on his own authority, is not equivalent to such an act done by the crown itself, and is consequently not valid. 15. The non-objection on the part of the crown to a noti- fication or proclamation issued by a governor of one of its ♦•eded colonies does not imply that the governor had author- ity in the subject of the proclamation, nor will its non-inter- ference render the proclamation valid on the ground of ac- quiescence. Mr. Baron Parke, p. 343 : — If a Governor had, bj- virtue of that appointment, the whole sovereignty of the colony delegated to him an a Viceroy, and represented the King in the government of that colony, there would be good reason to contend that an act of sovereignty done l)_v him would bo valid and obligatory ujion the subject living within his government, ])rovided tlio act W(.)uld ho valid if done by the Sovereign himself, though such act might not be in conformity with the instructions which the Governor had re- ceived for the regulation of his own conduct. The breach of those instructions might well be contended on this supposition to be matter resting between the Sovereign and his Deputy, rendering the latter liable to censure or punishment, but not affecting the validity of the act done. But if the Governor be an officer, merely with a limited authority from the Crown, his assumption of an act of sovereign power, out of the limits of the authority, so given to him, would be purely void, and the Courts of the colon}-, over which he ])residcd, could not give it any legal effect. "Wc think the office of Governor is of the latter descri])tion, for no authority or dictum has been cited before us to show that a Governor can be considered as having delegation of the whole royal power, in au}- colony, as between him and the subject, when it is not expressly given by his commission. And we are not aware that any commission to colonial Governors conve^'s such an extensive authority. 1 Beibice, 1835 Dec. 21, III Knapp 332. GOV ER'SO II 391 POWERS AND PRIVILEGES OF ^ , IIlLL V. BinoE ' IG. This action was ou an obligation. The plea set up that the defendant was, at the time of the action, and still continued to be jieutenant-governor of the Island, and as such not liable to be sued. This pica was overruled, although his person is not liable to be taken in exeimtiou while on service. Lord Brougham, p. t,u ; — If it l)o said that the Governor of a colonv is quasi Sovereign, the answer is, tlmt ho iloo.s not even represent the Sovereign goneralh', having only the functions delegated to him by the terms of his commission, and being only tiie officer to execute the specific ])0\vers with which that commission clothes him : ''The '' Governor" said Lord chief Justice Be Grey in Fabri/jas v. Mostiyn. ■' is the King's servant : his commission is from him, and lie is to '' execute the powers he is invested with under that commission."... Nor must wo forget, in reference to the position of the supreme power in the state, that I)}- our laws and constitution it is not in the Sovereign, but in the Parliament, the Sovereign himself being liable to i)e sued, though in a particular manner; and if his liability be such, oven as much restricted as some have occasionally maintained, it would still be greater than the appellant's argument supposes the liability of a (rovernor to be. The consequences imagined to follow from holding the Governors liable to action like their fellow subjects are incorrectly stated, and, if true, would not tlecido tiie question. For it by no means follows that because an action may be maintiiined and judgment recovered, therefore the same process must issue against the Governor a» against another crson, pending his government. His being liable to be taken in execution is not the necessary consequence of his being liable to have a judgment against him. There were anciently more instances than happily now, of persons privileged from legal ])rocess; but there still arc some such exemptions, as privilege of Peerage and of Parliament, and (jf persons in attendance upon the Sovereign, and upon courts of justice, Xono of these privileges protect from suits, all more or less protect from personal arrest^ in execution of a judgment recovered by suit. Indeed the old, and we ma}- now say oijsolete writ of protection, which the king granted to his servants and debtors, purported to be a protection from all pleas and suits; yet the courts held that no one should thereby be ilelayed in his action, but onlj' that execution should be stayed after judgment. It may bo observed in passing, that those protections were a provision made by the old law for the security of jiersons in the foreign service of the Crown : as commanders of armies, ambas- sadors, and doubtless governors of the continental dominions also. It therefore is not at all n^;cessary that in holding a Governor liable to be sued, wo should hold his person liable to arrest while on ser- vice ; that is, while resident in his government. It is not even necessary that we should meet the suggestion of his goods in all I,/; ■ 1 Island of Trinidad, 1841 Dec. 4, III .Moore 46.5. 392 GOVERXOE jP 'it POWERS AND PRIVILEGES OF circumstancGH being liable to bo taken in execution, though that is subject to a ditfcrent consideration. MUSQRAVE V. PULIDO ' 17. The ordiuary courts of justice have the right to deter- miue whether any act of power done by a governor of a colony is within the limits of his authority and therefore an act of state. 18. The governor of a colony has only the power derived from his commission, and does not possess general sovereign power. Sib Montague E. Smith, p. Ill : — It is apparent from these authorities that the Governor of a colony (in ordinary cases) cannot be regarded as a Vice-roy : nor can it be assumed that he possesses general sovereign power. Uis authority is derived from his com- mission, and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that, for acts of power done by a Governor and within the limits of his commission, he is protected, because in doing them he is the servant of the Crown, and is exer- cising its sovereign authority ; the like protection cannot bo ex- tended to acts which are wholly beyond the authority conlided to him. Such acts, though the Governor may assume to do them as Governor, cannot be considered as done on behalf of the Crown, nor to be in any proper sense acts of state. When questions of this kind arise it must n cessarily be within the province of municipal courts to determine the true character of the acts done by a Governor though it may be that when it is established that the particular act in question is really an action of state policy done under the authority of the Crown, the defence is complete, and the courts can take no further cognizance of it. It is unnecessary, on this demurrer, to consider how far a Governor when acting within the limits of his authority, but mistakenly, is protected. GRANT See Crown Lands : possession. k 1 Jamaica, 1879 Dec. 13, L. R. V Appeal Cases 102. H SUMMARY PACKS HABEAS CORPUS ^ccWniT 0( PiiEiiooATivK : iisdem verbis. HANDWRITING See Evidence. HARBOUR BOARD Responsiuility ok 393 HUSBAND AND WIFE j See Marriage : rights and liabilities of married women. HYPOTHEC ■Construction op debentures 394 Extent op 394 Extinction op 395! For DAMAGES 395; Hypotuecary action 395 Judicial 396, PAGES Payment op account 396 Rank of 396 Redkmption op 397 Right op assignee 397 Thansper of 398 Usurious ciiAiiGE.-i 398 Prescription of See Prescrip- tion ; 0/ mortgaged estate. HIGHWAY Dedication 398 Level of street. See Expropria- tion ; valuation of property. Prescription op See eodem verba. Public street and squares 399 Right to close street : See Cor- poration (Municipal) : iisdem verbis. Trustees tor turnpike roads 403 HABEAS CORPUS See Writ of prerogative: iisdem verbis. HANDWRITING See Evidence. HARBOUR BOARD RESPONSIBILITY OF ShAAV & AL. V. TiMARU IlARBOrR BoARD ' 1. Although the respondents, being the Harbour Board for Timaru, had by statute jurisdiction over the port, and could license pilots, they had no right to make pilotage contracts 1 New Zealand, 1890 April 30, L. R. XV Appenl Casea 429. 394 IIATIBOUIJ BOAIID - II REHPOKMBIMTT. with ii private vessel, aud therefore, could not be held res- pousilile ill damages lor the default of their harbour master who had acted as pilot for a vessel with their consent. HUSBAND AND WIFE See Marriage : rights and liabilities of married women. HYrOTHEC <<0!ir!«TRr<'TIOX OF DEBENTVRR.S. WicKiiAM V. New Urinswicic and Canada Railway Co. ' 2. The <'ompau}' respondent borrowed money on deben- tures as security. These were termed " Mortgage Deben- tures," the principal and interest thereon being made a charge on and secured by all moneys arising from the sale of the lands of the company, all futu^-e calls on shareholders, and all tolls and sums of money which should become due to it, and by the plant and rolling-sto(*k, with power of entry and possession of the same, upon failure by the company to pay the principal aud interest as therein specified ; Init with a proviso that nothing therein con- tained should be held to limit the poAver of sale on appro- priation by the company of any of the lands of the company, nor constitute a charge on the same. These bonds w^ere not registered. The Judicial Committee held that such deben- tures did not constitute a charge in the nature of an equit- able mortgage on the lauds of the company, so as to give the holders of such debentures a right to restrain the sale of the lands by judgment creditors of the company, or any title to the proceeds of the lands when sold, as the sale by the sheriff under an execution is a sale by the law, and not by the company. m i EXTE^fT OF Fenton v. Blackwood et al '' 3. The respondents endorsed bills of exchange in behalf of the appellant, for a sum of .£18,700, which bills were dis- counted by a bank. This endorsatiou was secured by a mortgage on real estate ,and the deed mentioned that it was to cover this bill of exchange and any other bills or notes that the respondents might make or indorse either by way of reueAval or in substitution of the original bills, to cover also the interest or any other account whatever incidental thereto or consequent thereon. The appellant also mortgaged a stock 1 New Brunswick, 1865 Dec. 22, III Moore X. S. 41G. 2 Victoria, 1874 Jan. 29, L. R. V. P. C. 167. if; \\ in'POTHEC :vXi EXTENT OF of horses aud cattle agreeing to pay all license fees, rents, assessments, penalties and other charges on the said stations aud stock, aud in default, the mortgagees had the right to pay them aud be secured by the mortgage. The Judicial Committee held that the mortgagees, under this agreement, had the right to charge discount, interest, rents, licenses, paid by them, but they could not charge sheep-mark. EXTINCTION OF Wilkinson v. Simson ' 4. The mortgage or pledge given as security for a debt becomes extinct by the full payment of the debt to which the mortgage is attached ; and a person paying the debt of imother, as drawer on bills of exchange for which a hypothec had been given, is not siibrogated in the place of the mort- gagee, unless he pays upon an express understanding that he should, as the payment of the bills of exchange extin- guishes the mortgage. FOR DA^WAOES. Cameron v. Fraser ' 5. Where a mortgage has been given to secure the payment of bills of exchange with interest and damages accrueiug thereon, the court below maintained the mortgagee's pre- ferential right for the capital aud interest as representing the purchase price, but refused it for the damages. The Judi- cial Committee reversed that judgment and held the mort- gage good and the claim for damages preferential as for the capital aud interest. hypothecary action. Beauce v. Mlter ' 6. The registration of a judgment against the estate of the debtor constitutes a general hypothec ; and a possessor who derives his title from the original debtor, although there has: been no renewal of registration against him, is subject to an hypothecary action. T. When an Order in Council requires the renewal of re- gistration for all mortgages or incumbram^es on real estate, such renewal against the original owner is effective against subsequent purchasers. 1 British Guiana, 1838 Feb. 24, U Moore 275. 2 British Guiana, 1842 Feb. 5, IV Moore 1. 3 St. Lucia, 1845 Jan. 17, V Moore 6'i. 396 HYPOTHEC i; jvdiciai.. Lano v. TJeid ' 8. By the French law prevailiug iu Mauritius, a ^iwdgment obtained against a debtor, and duly registered, constitutes a specific charge or hypothec on the debtor's real estate, with priority according to date. payhentm <»!v account. National IJank ok Australasia v. United IIand-in-IIand AND Band ok Hope Company ' 9. A mortgagee, who is in possession of the mortgaged l)roperty, miist account to the mortgagor for his actual re- ceipts with interest, and for all he has received from third parties out of the estate. 10. If the estate is sold at an under value by the fault or negligence of the mortgagee in possession, he is liable for the full value of the property to the mortgagor. LeWIN v. WiLSdN * 11. The principle that the only person by whom a pay- ment can be made to prevent foreclosure from being barred is the mortgagor, or some person in privity of estate with him, or the agent of one of them, must be qualified so as to include those who have the right or the interest to make payments, by the deed of mortgage. Chinnery v. Evans, 1 1 //. L. C. 115 ; Harlock v. Ashberrij, ch. 19, p. 539 ; Bolduig v. Lane, 1 De G. J. Sr S. 122 ; Toft v. Stephenson, 1 De G. M. Sc G. 28. PAYMENT OF MORTGAGE HELD IN ANOTHER COUNTRY. SeC INTER- NATI0N.4L LAW : Usdem verbis. BANK OF Brown v. Anderson* 12. The appellant was a prior mortgagee with right to the consignments, for money advanced and supplies fur- nished to the owners of the estate hypothecated. The suit was brought against the purchaser of the estate for the balance of an account. The heirs of the original mortgagor intervened and claimed to be paid before the mortgagee of the price of the sale to respondent. The question to deter- mine was the respective rank of the appellant and respon- dent as mortgagees, and was one of fact only. The Privy Council reversing the decree of the court below, held that the proceeds of the estate were first applicable to sums due for supplies and next in payment of the mortgage debt. 1 Mauritius, 1858 June 16, XII Moore 72. 2 Victoria, 1879 June 14, L. R. IV Appeal Cases 391. 3 S. C. New Brunswick, 1886 June 25, L. R. XI Appeal Cases 639. 4 Trinidad, 1838 Feb. 19, II Moore 249. 1 k i J! 1 f ^i i 4 - m HYPOTHEC 3m Reid ' ladgment stitutes ji ate, with D-IN-HaNI) ortgiiged ictuiil re- om third i'ault or le for the "lLSf).\ ' tn ii pay- g barred ate with so as to to make 'jvans, ] 1 aiding V. te G.M. e Inter- ERSON * right to ies fiir- rhe suit for the )rtgagor jagee of deter- respon- J Privy 3ld that ms due bt. RANK OF Gordon v. noRSFAUi ' 13. There were two suits by hypothecary creditors, each claiming priority on questions of fact. lu determining the respective rights of each of them, the Judicial Committee held, that a subsequent creditor t-annot sustain an action claiming general administration and account against a prior creditor, without ottering redemption which is the only relief in equity. RKDKnPTION OF BiRNiE V. Caystile ' 14. In the Isle of Man, since the statute of 1835, a mort- gage may be redeemed after twenty-one years. 15. A mortgage of copyholds of the tenure of Quarter lands, cannot be foreclosed, but the mortgagee may sue out judgment and execution, and in virtue of such judgment and execution cause the mortgagor's premises to be sold for payment of the mortgage. IUnk of New South Wales v. O'Connor ' • IG. A mortgagee is entitled to his principal and interest, and to the ordinary charges and expenses connected with the security. He is also entitled as of right to the costs l>roperly incident to an action for foreclosure or redemption, though he may forfeit those costs by misconduct, and may even have to pay the costs of such an action in a case where he has acted vexatiously or unreasonably. Cotterell V. Strati on L. R. 8 Ch. 295. 17. Where a deposit of titles has created a charge to secure a loan, an action in detinue cannot be maintained before the payment of principal and interest. 18. A tender properly made for the redemption of a mort- gage and rejected is not equivalent to payment in such case. Postlethwaite v. Bli/the, 2 ISvt. 256 ; Chilton v. Carrington, 15 C. B. 95, 730 ; 16 C. B. 206. RIOHT OF ASSIGNEE. Macrae v. Goodman ♦ 19. In an action where the question in issue was as to the rank between the mortgagees, the Judicial Committee held, that the lex Anastasinna, in British Gruiaua, under which an assignee for a valuable consideration of a debt or chose in action, secured by mortgage, could not recover more than 1 Jamaica, 1846 Dec. 8, V Moore 393. 2 Isle of Man, 1854 Nov. 28, IX Moore 303. 3 Victoria, 1889 March 9, L. R. XIV Appeal Cases 273. 4 British Quiana, 1846 May 14, V Moore 315. f 111 iil 898 llYfOTirW.' HI«IIT OP AIINKJNKE. tlio amount oftlu' fousitU'ration money, actixally paid to thf ussignoc, with K'gal interest I'vom the time of payment, is not applicable to a bona fide purchaser ol' a mortgage. TKAWMFKK OF Walkeii v. .Ft inks ' 20. The assignee of a mortgagee cannot stand in any dii- I'erent ehaiafter, or hold any diJierent position, i'rom that of the mortgagee himself, although the mortgagor may not have been a party to thi- assignment ; and every mortgagor has the right to have a re-conveyance of the mortgaged jtro- pi^rty upon payment of the money due upon the mortgage, and the mortgagee is charged with the duty of making .'>uih n'-convi'vance upon smh payment l)eing made. 21. Wnere, therefore, a mortgagee having, besides tht! l)roperty mortgaged, certain i)romissory notes made by the mortgagor, as collateral security for his debt, transferred the mortgage Avithout assigning the collateral seciirities, the Judicial Committee held that he was not entitled so to sever the debt from the security, and an injunction was granted against his proceeding at law to recover the amount of oue of the notes, pending a suit instituted by the mort- gagor, to redeem and to settle the equities of the parties. VSVRIOVS CHAKGES. Savers v. Whitfiem) '' 22. All charges against a mortgaged estate which have a tendency to usury should be disallowed, but it is not usiirious for a mortgagee to demand the consignment in his favour of the produce of the mortgaged estate, nor to charge a commission on the sale oi'sui'h produce. Chambers v. Goldtoin, 9 Veseij 271 ; Langstaff v. Fenwick; 10 Vesei/ 405 ; Bunberry v. Winter, 1 Jac. & Walk, 257 to 2G1 ; Stnckland v. Brickwoud, 1 Knapp P. C, 143, note "* ; Scott v. iVesbitl, 141 Ves. Jut. 438. of mortgaged estate. PRESCRIPTION OF See Prescription HIGHWAY dedication. De Carteret v. Baudains * 23. According to Jersey law there can be no dedication without an express grant recorded in the Royal court. 1 New South Wales, 1865 March l.'i, III Mooie X. S. 397. 2 St. Vincent, 1829 Aug. 3, 1 Knapp 133. 3 Jersey, 1886 April 6, L. R. Appeal Cases 214. IIKillWAV :{•»•» i.r.vKi< OF «tbki;t. See ExPUoi'Ui.vTioN : valuation of /irfl/iert,i/_ PKKM-HiPTiow or See IMiliscKirTluN : eotlein verbu. PI7BM*' STKKKTN A.\D NqVAHKM. La CuEvactTiiiKK v. L.v ('nt he Mo.ntiieal ' 24. By Ciinadiiiu as by English and Scotch law Avheii a street or road is used by the public duriuf? more thau teu years, there is sulRcient dedicatiou on thc^ part of the owner to convert it into a public highway, and the soil ol' the road becomes vested in the crown or other i)ublic trustee in trust for that public use. 25. The use by the public of a square, for pxiblic pur- poses, during ten years, prescribed the soil in behalf of the public corporation. (23 Vict., c. 72, s. 10, subs. 6.) Ldiin FiTZdEHALD, p. 157: — Sevorulqviestion.sot' very consUlcrublo importance and (liiHculty liavo liocn raised liel'oro tiiis ('i)niinittce. One was suffjfestod liy one of their Ijcjrdsliips — wlietlier tiic ('f)ndi- tion was ai)portional)ie, and if not apportionai)le, whetiier tlie de- mandants could sue, not being the owners of nor interested in the whole of the proport/ which is the subject-matter of the condition. On that question also, their Lordshii)s do not lind it iiece>>ary, in their present Judgment, to express any opinion. There were also tpiestions whetiier the comlition of re-entry was void in its inception, whether it was a condition of re-ontr}- projiei- ly, or was merely inserted in tho deed of gift in terrorem, and merely commiiiafoire. There was also a question of prescription arid other questions in the case upon which their Lordships do not propose to exjiress any opinion, as the appeal may be disposed of on another and satisfacto- ry ground. The magistrates of Montreal having got possession of the laud under that deed of 1803, and converted it into a public market, we come next to the Ordinance of 4th Vict., by which tho magistrates ceased to be the managing body of th(! city of Montreal, and were replaced by a quasi-corporate body. That leads to the 8 Vict. c. 551. Tho magistrates in Montreal hadacce})ted this deed of 1803, which, whether it was for valuable consideration, or a simple voluntary deed, was a deed of grant for ever. The words are " maintenant et a toujours'^ — but subject to the condition, whatever tho effect of it was. Therefore, at ho time of the incorporation of the city, tlie magis- trates wore, as trustees for the public, in ownership of this land in jiorpetuity, subject to the condition, with this market upon it ; and over this public market place, not inhabitants of the city alone, but tho public at largo had acquired considerable rights. That being tho position of atfairs, there came the Canadian statute of 8 Vict. c. 59 ; that statute is not a general Act dealing with all corporations, but with Montreal alone. It is to give greater potency 1 Quebec, 188G Xov. 16, Xfl L. R. Appeal Cases 149. Fji^^^ 400 HIGHWAY PVBLIC STREETN AND M^ITABES. and ctt'ect to the incorporation of tho city of Montreal and to enlarge the powers of tho corporate body. It gives them very extensive powers over the i-lLy, and amongst other things it says, in tho 50th section, that thi y '^hall have power of " changing the site of any " market or market place within the said city, or to establish any " new market or market place, or to abolish any market or market " place now in existence, or hereafter to be in existence in the said " city, or to appropriate the site thereof, or any part of such site " for any other pubhc purpose whatever, anj- law, statute, or usage " to tho contrary notwithstanding ; saving to any party aggrieved " by any act of tho said council respecting any such marketer mar- " ket place any remedy such party may by law have against the " corporation of the said city for any damage by such party, sus- " tained by reason of such act " of the corporation. Now it was contended that, acting under that statute and convert- ing this market place to another public purpose, was no breach of the condition, and that the cftect of the statute was to discharge tho condition and leave it open to tho corporation, acting for tho public interests, to appropriate tho site of that market place to any other public purpose, but subject to a claim for compensation by the de- mandant here and tho parties he represents, if they had title, and had been injured by the act of the corporation. Now upon this very important question as to tho oifoct of this statute, their Lordships do not think that it is necessary at present to express any opinion. Proceeding under the powers that they had so obtained in Decem- ber 1847, the tirst by-law was made. In that, the corporation indi- cate their intention to abolish this market and apply tho site to an- other public purposi', and their Lordships can have no doubt, that ■li taking that step, the corporation were moved only by considera- tions of public good. They found it necessary, probably, to supply the growing city with a larger market place, for Montreal in 184T was a very different place from the Montreal of 1803, growing and extending every day, and still growing and becoming one of tho most beautiful cities in the world. They very likely thought that a larger market place was necessary, but that they ought to retain the space occupied by the market as an open space for the public food and the public health, and hence thoy converted it into the lace Jacques Cartier. In January 1847 tho act of conversion was made complete, and there was also a subsequent by-law by which they directoa that tho now place should bo henceforward called the Place Jacques-Car tier. Their Lordships assume also, for tho purjjoses of the case, that, upon the happening of those events, whatever rights if any the de- mandant or those ho represents had under the condition in the grant of 1803 came into existence in January 1847, that is, that they were then entitled, if at all entitled, to put their claims in force and to ins- titute a proceeding against the Corporation to take advantage of the condition annexed to the gift of 1803, and to resunio possession of this plot of ground or to get compensation for the act of tho corpo- ration. But they did not do so, and things wont on as before from 1847 to 1852. The effect of tho transaction of January 1847 was, to ■^I'wffl iW UIGIIWAY 401 PITIIMC STREETS ASfD SaVARES convert bv the act of tlio coi'ijoratioii, the old niarkot j)lacu inio a public sciiiaro which tho citizens of .Moiili'oal and the public liad a right to use. tit cur Hcnt Things continued in that condition down to 1852, when Perrin ins- uted his action. That action maj- lie described with sulistantial ac- •acy as similar to the present. It made tlie .same case. Tlie pre- it demandant is the assignee of Perrin's interest. Perrin's action the corporation defended. They put in exceptions similar, save in one respect, to thc^se now before their Lordships. It was allowed to •sleej) for some .six years. Tlie case was then set down for hearing be- fore the proper court in Canada, and was dismissed, either for want of prosecution, or on the merits. Porrin never instituted any other proceeding. lie appears to have lain dormant for 10 years, and in 187(J, for a nominal sum, to have assigned this large claim over to the present demandant. In all that interval, the public had been using this public place and it was not using it privately, i* was not clam, but it was openly and as of right, without any interruption liy the parties or any of them who are now represented to have had the property in the place. -Mr. PuUarton relied very much on this acti(Mi of Perrin's and a petition that came in from s(ime outside parties. Who they were we do not know ; but it was u petition which was not acted upon, and it is o])eM to the suggestion that it was the existence of that petition that suggested the action of Frangois Perrin. However, Perrin never took a step further, ami it appears to their Lordships that the absence of any contestation of the right of the public to use this jilace as a public highway is clear eviilence of accpiiescencc in the public right, or rather of abandon- ment ot the claim, if any, that Francois Perrin had. Their Lordships desire to point out that, independently of tho sta- tutes, tiierc is evidence of a long-continued user by the public and an abandonment of right by those who could have disputed the user by the public, sufficient to sustain at common law the public right. There seems to be no ditference between the law of Lower Canada and the hiw of England and of .Scotland in that respect. The public had en- jo5'ed the right from 1847 down to the commencement of tiic ])re- (sent acti(jn. They had enjoyed it openly, claimed it, not privalelv, but adversely, and as of right, and in the meantime, there had not been a single step on the jjart of the present claimant, or those from Avhom he derives title, to dispute that right, but, on thecontrarv, there was the amplest evidence of ac(|uieseence in the ])ublic enjov- ment. There 'is been made out, independently of any statutory pro- vision, an ample case of user on the one side and dedication or "aban- donment on the other which would constitute the place in question a public place over which, not the citizens of Canada or Montreal alone, but the public at large, had rights, which the law would give ett'ect to, independently of the provisions of any statute. The 18 Vict. c. 100, Lower Canada, does not apply to Montreal, but deserves attention. Montreal is excepted from the operation of that Act, but it applies to every part of Lower Canada save Mont- real and some other excepted jilaces, and it C(jntains this provision, that " every road declared a public highway by any proems verbal 2C |i f 402 HIGHWAY PUBLIC STREETS AND SQUARES. " by-law or onloi' of any grand voyer, warden, commissioner or mu- " nicipal council legally made and in force when this Act shall com- " mcnce shall be held to be a road within the meaning of this Act " until it be otherwise ordered by competent authority." That was the Act adverted to by Chief Justice Dorion. He intended to refer to the 2;J Vict. c. 72, which applies to Montreal alone. It deals with tlie property of Montreal. It deals with the powers of the corpora- tion and extends them beyond the Act of the 8 Vict. In sub-section 6 of section 10 of that Act (23 Vict. c. 72) there is this special provi- sion : — " The said council " (that is the council of Montreal) " shall " also have power to cause such of the streets, lanes, allej'^s, highways, " and public squares in the said city, or any part or parts thereof, " as shall not have been heretofore recorded or sufficiently describ- " ed, or shall have been opened for public use during 10 years but " not recorded, to bo ascertained, described, and entered of record " in a book to be kept for that purpf»se by the city surveyor of the " said city, and the same, when so entered of record, shall be pub- " lie highways or grounds ; and thr, record thereof shall in all cases " be held and taken as evidence foL* their being such public high- »* ways and grounds." Proceeding under this Act, the corporation did in 1865 register the Place Jacques Cartier as a public place of the city. Their /,ord- ships have no doubt that the registration was valid, and ha?- been amply proved. If any objection had been taken at the trial Oefore the Canadian Judge, it would have been the easiest thing pocsible to produce the original book, but a certified copy of the entry of regis- tration was admitted in its place. The Place Jacques Cartier had been from 18-17 up to 1865 (more than 10 years before registration) enjoyed by the public as a public way and it was enjoyed as a public way more than 10 years after the registration and before the present action was commenced ; and it seems to their Lordships that the case comes within the express lan- guage of that statute, and their Lordships have no doubt that, when the local Legislature passed this Act, they knew the state of things in the city, intended to provide for it, and did provide for it in strong and emphatic language, saying, that when a street or road hhould have been opened for public use during 10 years and i)laced upon the register, it should be a public highway. Their Lordships are of opinion that,even if the common law question did not arise, still, there having been antecedent to this registration, and posterior to the registration, the statutable time during which the place should be used as a public street to give operation to the statute, the statute then applies, and upon that registration, the Place " Jac- ques Cartier" became a public highway. There is a distinction between the Canadian law and the law of this country as to public highways. The Canadian law agrees rather with the law of Scotland, Avhich is founded on the civil law, namely, that when a street or road becomes a public highway, the soil of the road is vested in the Crown, if there is no other public trustee, or, if there is a corporate body that tills the position of trustee, then in that corporate body in trust for that ini- SKi J IIICrllWAY 403 PUBLIC STREETS ANO S^ITARES. blic use. It was iidmitted in the argument for the appellant that 8uch was the law of Lower Canada. Their Lordships being of tiiat opinion, wiiich is in accordance with the principles deduced from Guy v. Corporation de Montreal (3 L. N. 402), and with the principles on wiiich the Court of Queen's Bench for Lower Canada appears to have decided this case, will therefore humbly advise Her Majesty that tiiejudgment of the Court of Queen's Bench for Lower Canada, which is also the judgment of the Superior Court, should be affirmed, and that the present ai)peal should be dismissed with costs. RioiiT TO cxosK STREET. See CORPORATION (MUNICIPAL) : iisdem verbis. trustees for tvrstpike roads. ^ ^ ^ The Queen v. Belleau ' 26. Where trustees are formed iuto a corporation for the purposes of iraproviug the publics roads, aud powers are giveu them by au Act of Parliament to borrow money on the credit and security of the toll gates, and not to be paid out of the revenue of the province, no liability is as- sumed on the part of the province either for the principal or interest of debeutvives issued by the said trustees, whether the public has benefited or not by the improvement of the roads. 1 S. C. Canada, 1882 June 20th, L. R. VII Appeal Cases 473. SUMMARY ! t 11 PAOKS IGNORANCE See Criminal law. eodemverbo. ILLEGITIMATE CHILDREN Sep Filiation, Lkoacy, MAuniAOE, Will. IMPUTATION See Payment : eodem verba. INDEMNITY See Compensation, Crown lands, Expropriation. INDORSEMENT See Bill of e.xchange. IN FORMA PAUPERIS jSee Appeal : iisdein verbis. INJUNCTION By CO-PROPRIETon against TBnSTEE 405 POSSES.^ION OF CROWN LANDS 405 IXSANES Cark of See Governor : right of veto. INSAISISSABLE See Partition : what is INSOLVENCY Adjudication OF 406 Ce.SSATION of PAYMENTS 407 Compensation 407 DlFKK'l'LTY TO ESTAIiLISH IT. See Bottomry and Respondentia : riylil of master to effect loan on. DlSTniDUTION AU MAUC LA LIVRE 408 Effect of 408 Effect of discharge under the Imperial Act 40S Fraudulent preferences 40!i Imperial Act in the Island of TOIIAGO 412 Imperial Act in New Zealand 413 Legislation ON S«« Lkgislatdrb : legislative powers: iisdem verbis.. FABNERSniP estate 413 Powers OK the assignee 413 Privileged claims against joint estate 414 Transfer of shares 415 pages INSURANCE Abandonment 4ia Conditions in policy 421 Construction of contract 424 Insurable interest. See Sale : tvhat constitute the sale. Open cover 427 Powers of agent 427 Renewal 428 Stamp on policy. iSe? Legislature : legislative powers. Subrogation 428 Termination of contract 429 Total loss 429 Warranty of seaworthiness 430 INTERDICTION Grounds of 434 INTEREST See Bank and Banking, Bills of E.xchange, Hypothec, Sale. INTERNATIONAL LAW Alteration of law in bbitish co- lonies 434 Breach of blockade 439 Civil status 446 Foreign enlistment 446 Foreign law. See Evidence : law of foreign States. Foreign law in collision cases... 447 Jurisdiction of states 447 Jurisdiction of courts ok Justice 449 Law OF the domicile governs will 450 Law governing bottomry con- tract 451 Law governing moveables 451 Lex loci contractus 451 Nationality 452 Payment of mortgage due in ano- ther country 454 Prescription 455 Principles ok blockade 455 Prizes of war 458 Procedure regulated by lex fori 460 Punishment of crimes 4()1 Rules governing ship on sea 401 Ship adopting British colors 402 Slave trading 403 Value of currency 403 INTERVENTION .Sc( Practice. laNORANCE See Criminal Law : eodem cerho. ILLEGITIMATE CHILDREN See Filiation, Legacy. Marriage, Will. IMrUTATION See Payment ; eodem verba. INDEMNITY See Compensation, Crown Lands, Expropriation. INDORSEMENT See Bill of Exchange. IN FORMA PAUPERIS See Appeal : iisdem verbis. INJUNCTION bit co-proprietor aoain8t trustee. Israel v, Eodon ' A female co-proprietor having the eujoyraeut during life of half of au estate, the whole of which is under administration of triistees by a deed of settlement 1. her the executed by the original sole proprietor, the husband of the female co-proprietor, can-iot obtain au injiinction against the trustees prohibiting them from administering her half of the estate, in the hope of realizing more than the trustees used to do. POSSESSION OF CROWX LANDS. Gii.MouR V. Mairoit and Am.atre ' 2. The holder of a location ticket obtained from the i-roAvn for good consideration, and who has had for a long time the possession of public lauds, is in the position of a bona fide possessor of real estate with a promise of sale, and is entitled to au injunction to restrain another person w^ho is a lessee of crown timber limits, under a license from the Commis- sioner of croAvn lauds for the Province of Quebec, from cutting timber on lots occupied by him ; and it does not matter that the location ticket might be niill and illegal, as granted without authority by the Public Lauds Department, until the question is settled by the courts of justice. I 1 Jamaica, 1837 Xov. 30, II Moore 43. 2 Quebec, 1889 July 27, L. R. XIV Appeal Cases 645. r;^ 4()(.' INJUNCTION m I • ;■ 1 I: POMSEMNION OF CROWN E.AN1>H. 3. But this question of the validity of the location ticket cannot be decided under a writ of injunction, especially y^■' all the parties that should be in the cause have not i.. V ?ipd or been called in. ! ,1' iloBiiousE, p. 649: — The plaintiff iH in possession for valuable consideration given by him to the crown, in the course of I'.'alinsfs with the official agent of the crown, and ostensibly by the imtlio' 'fv ot ''■>' agent. Even supposing that the crown can annul the iasi. iimeui which gives him title it could not treat him as a trespasser. Nor whai -ver may be the legal powers of the Crown, as to which their Lordships say nothing, can we consid )•■ Dim* ri-TY TO KSTABMsii IT. See Remarks of Lord Eomillij, re Ban-on v. Sluait, (he " Panama,'' vo Bottomry and ]{espondentia : right of madtr to effect loan on. DINTRIBI'TIOX XV MAHC I.A MVKE. CocKEKEi.L V. Dickens ' 11. The principle that a creditor cannot take a part of the common fund i masse) available to all the creditors au marc la livre for himself alone, and at the same time share with the creditors for the remainder, does not apply when that cre- ditor has obtained by his diligence something which did not and could not form part of that fund. EFFECT OF COKLETT V. EaDCLIFKE ^ 12. The effect of insolvency is to render the insolvent in- capable of disposing of his property in any manner, and all deeds passed by the insolvent in such a state, even when he would be insolvent only by the consequences of this deed, are null and void as against his creditors. The value received mentioned in the deed is not to be taken in consideration. Avhether it is Vjeneficial to the creditors or not. KeRAKOOSE v. BuOfJlvS ^ 13. An undischarged bankrupt, having been employed as manager of an hotel, agreed to purchase the stock and good •will from the proprietor, who knew of his bankruptcy, and Avho agreed to lend him a sum of money to purchase the stock and other trade effects, but on the understanding that the effects Avere to be assigned to him as security lor the debts. Accordingly the money was lent and a bond taken for the amount, and the same day the purchase and assignment in security were perfected. The official assignee was in- formed that the Insolvent was carrying on business on his own account, bvit did not know of ihe above transaction. The Judicial Committee held that the loan, purchase and mortgage Avere one transaction, and nothing passed to the official assignee except subject to the lien of the creditor who furnished the money. EFFECT OF DINCIIAROE UXDEK THE LVPERIAL ACT. r*]l)WAKDS V. EoNALD * 14. An insolvent who has obtained a certificate of dis- charge in England may oppose it as a bar to au action taken against him for a debt previously contracted in Calcutta. 1 Bengal, 1840 Feb 24, III Moore 98. 2 Isle of .Man, 1861 Dec. 20, IV Law Times X. S. 1. 3 Madras, 18G1 Dec. 6, III Law Times N. S. 712. 4 Calcutta, 1830 March 30, 1 Knapp 259. IIiVj- Ix.soLYJ<:^x'Y too MRY AND ErrCC'T OF niNt'lIARUK VXDKR THE IMPEHIAI^ ACT. • illiL V. BAUIUtN ' 15. The insolvent conrt of the colony of Barbadoes ordi'ied that appellant's property and goods should be administered under the insoh'ent law in force in that Island, as he had left the country l)eing' insolvent and under suspicions cir- cixmstauces. The appellant afterwards settled in England and there again became a bankrupt for a debt contracted in England, but obtained a regular discharge under the bank- ruptcy Act, and returned with his certificate of discharge in the Island of Barbadoes. At the instance of some of his creditors, on his arrival in this last place, he was arrested and sentenced by the first court, where the original proceed- ings were had, to eighteen months imprisonment for fraud against the law of the Island. The question of the jiirisdiction of the court was brought before the Privy Council Avho maintained that the court of Barbadoes having acquired jurisdiction by the original pro- ceedings retained it, so as to have the right, on the return of the appellant, to adjudicate upon the petition of his cre- ditors, to punish him for his fraudulent acts, notwith.staud- ing his certificate obtained in England. The Lord Chief Baron, p. 239 : — Now, it is quite true, that an adjudication in banivruptCN", followed Ijy a certiticuto of discharge in this country under tlie bankrupt laws passed by the Imperial Legis- lature, has the ett'ect of barring any debt which the bankrupt may have contracted in any part of the world, and it would ha\ e the effect of putting an end to any claims in the Island of Barbadoes, or elsewhere, to which the appellant might have been liable at the date of the adjudication. There is, indeed, much to throw a deep shade of suspicion over these proceedings, but there they arc, recordc*! ac- cording to law in this country; tliere is the adjudication, and there is the certilicate. The adjudication has never been susjiended or annulled, the certiHcate remains in full force ; and their Lordships do not, whatever may be their opinion of the circumstances under which the adjudication was originally obtained, feel themselves at liberty to treat the proceedings as otherwise than valid, and of full force, as far as it can have any legal effect upon the debts or the proceedings in Barbadoes. FRAUUCLEXT PREFERENCES. Smith v. Carpenter '^ 16. A debtor knowing himself to be in a state of insol- vency cannot give a mortgage over all his estate to sec-ure one of his creditors. Such a mortgage would be void as 1 Barbadoes, 1868 July 1, V Moore N. S. 214. 2 Cape of Good Hope, 1858 June 17, XII Moore 101. 410 IXSOLVKNCY FRArni'LESiT PRKFERKWrKN. being an mulue prcforonce under the iusolveuey law Ordiu- a\u'v of the Cupe of Good Hope. 17. It is immati'rial whether the transaction has been voluntary or made under pressure, either small, severe or terrifying. The H.vnk ok AusxaALAStA v. llAaais ' 18. The following clause is the section 8 of the New South Wales Insolvent Act : " All alienations, transfers, gifts, sur- " renders, deliveries, mortgages, or pledges of any estates, " goods or effects, real or personal, warrants of attorneys, " cofrnovils actionem and judgments entered thereon, made " by any person being insolvent, or in contemplation of " surrendering his estate as insolvent, or knowing that pro- " ceediugs for obtaining an order for the sequestration of " his estate, as insolvent, have been commenced, or Avithin " sixty days preceding the making of any order for seques- " tration of his estate as insolvent, and having the effect of " preferring any then existing creditor to another, shall be " and are hereby declared to be absolutely void." The Judicial Committee held that this section provides only for fraudulent preference prejudicial to other creditors, but does not apply to preference given, under special cir- cumstances, in good faith and without the intention of giving an undue preference. NcMES V. Carter '' 19. The Jamaica Insolvent Act, 11 Vict. c. 28, s. 6*1, says that if any person knowing himself to be insolvent or in contemplation of insolvency shall transfer any of his pro- perty to any creditor for his benefit, such transfer shall be deemed fraudulent and void against the official as^'gnee ; provided always, that no such transfer shall be so deemed fraxidulent and void unless made within six months before a declaration of insolvency. Held that such transfer of property so made by a party in insolvent circvimstances, within a period of six mouths before a declaration of insolvency, was absolutely void, without it being necessary to establish any fraudulent preference. TlIURBlRN v. StEWAUI) '' 20. To constitute fraudulent preference it is not suflB.cient that the debtor should be, at the time of the payment, in a 1 Qucetislnnd, 18G1 June 21, XV Moore 27. 2 Jamai ;i., 1866 Xov. 14, IV Moore N. S. 222. 3 Cape of Good Hope, 1871 Jan. 26, VII Moore N. S. 333. i '' flP 1 INSOLVKXCV 411 FHArni'I.EXT PHErKHEX<-t:N. stute of insolvency, it must have been madt* in conttMnpla- tiou oi" bankruptcy. LoKi) Caikns, ]). ;{8!): — Tlie onus of proof, of con rso, lies upon tliosf wlio impeat'h the paymont an liaving boon niado In' way of undiio jtrefcronoo. It is well sottlod hy autlioritios in (his country, which would regulate the construction put uinm tiioso words hy our courts, that the more insolvency of the jiorson inaUing the payment is insufficient. The mere fact tliat at tiio time of the payment the whole of his proju'rty would not he suflicient to pay the whole of his dehts, is not sutHcient. It is a circumstance, an ingredient in the case, to 1)0 considered with all the other circumstances of the ca.se. The judgment, however, must he made in contemplation of bank- ruptcy, or, in this case, of sequestration. The words '■ contemplating .so(juestrations " are words on whicli, ]»erhaps, some criticism may well be bestowed, but they have received, by the construction put upon them, the meaning that the court, judging of the fact, must be satislied that the payment was made in the view an' upon nil his creditors, it'(s. !•) it triinst'crs nil the property of the debtor to a trustee, (s. »i) if the deed is sigiu'd Ky the majority in number and three fourths in value ; the deed must be registered within 2s days ; (s. Itjo) this seetion recjuires the registration oi' any deed by which a debtor, not ))eing an insolvent, transfers his estate to a trustee foi the beuelit of his creditors ; (s. lt)7) by this section, the debtor, creditors and trustee parties to such deed, shall have all the beuelit of the iJank- ruptcy Ordinaiun', exi.'ept sections 1*J8 and Kiit. Their Lordships held that sections liJH and UV,) are sup- l)lem(?ntary to section 1H7, and apply only to deeds coming within the i>rovisious of section Ki?]. 2;5. Held also that a public assignee, under a deed which did not comply with the conditions of s(Mtion 103, cannot, under the authority of sections 10") and 107, take an action to set aside a det^d of sah* of real estati^ as being a fraudulent l)reference. Ex parte Morgan, 1 De G. J. \ S. 288 ; 7 L. T. Rei>. N. S. 729; S//mons v. Georoe, 33 L. J. 231, Ex.; 10 L. T. Rep. N. S. 424; 13 L. T. Rep. N. S. 190; Pearson v. Pearson. L. Rep. 1 Ex. 310 ; 14 L. T. Rep. N. S. 596 ; Ex parte Alldmon, L. Rep. 9 Eq. 736. Ki,MorT v. TuityrAND •" 24. When authority had been given to a creditor by an insolvent, both having mutual accounts, and previously to the date <>f the abandonnment of property or act of bank- ruptcy of the insolvent, to receive a certain amount of money due to him, and to place it to his account, it was considered that this was a rightful payment and not a fraudulent pre- ference, as the creditor had uo knowledge of the state of insolvency of the insolvent. imi'rriai. act 1% tiik inland of tobaoo. Colonial Bank v. Warden ' 25. The Imperial Act, 3 Viet., ch. 41, which transfers to the trustee of an insolvent all his moveable estate and effects wherever situated, so far as attachable for debt, in 1 Hong KoHR, 1877 -Tune 29, XXXVII Law Times N. S. 73. 2 Jamaica, 1881 Nov. 10, L. R. VII Appt-al Casfs 79. 3 Tobago, 184G May .3, V Moore 340. IXSOliVKXCV 418 INPKHIAI. A4'T IS TIIK INI.AXII 0»' T0IIA<10. Iti'hiili' ot\T«MlitorH, is iippliial)!'' to nil tlif mo\'<'iil)l(' proptM'- tv <>l iii» iii«ol^'«'i>< I'l'i" <^l'>iHH' l)usiiit's.s ill Scotliiiid and iii llie Isliiiul <»r Tobai>(j, wliotln'v thfy aif to Ijc louiul in Si-otlaii(l or in tho colony; and thf trustct! may n-vcndifatc uiovcahlt'.s soi/i'd undt.'r execution in Tobaj^'o by the Trovost Marshal at the reciuust of a creditor. IMI'EIIIAI, At'T IX XKW «KAI,AS(D. HlNNV V. IlAUT ' 2t). The Entflish Hankr\iptcy Act of 1 ■^4!) does not apply to New Zealand. I,E«IMLAT10X ON verbis. See LEai8LATURE: legislative powers : iisdein PAHT.^tKRNIIIP EHTATK. lIo.vKE V. TnK Oriental JLvnk CoiU'0%VI'.KN OF THE AHMIOVEE. 3lEMI0t:RNK BaNKINO CORPORATION V. BRnrdllAM ' 28. It has been a recognized practice for assignees, when u foreclosure suit has been brought or threatened l)y a mort- gagee, and the equity of redemption was valueless, to dis- claim any interest. 29. This practice is clearly authorized by the Insolvenci/ Statute of Victoria, 1865, sect. 27. 30. A verbal agreement between the agent of a bank and an assignee to tue biFect that tnis latter should execute to the bank a release of the equity of redemption, and that, in consideration thereof, the bank sliould not prove any debt upon the estate, is valid and binds the bank, though not made under seal, if the bank accepts the release and acts upon it. 1 Xew Zcnland, 1857 June 16, XI Moore 189. 2 Now South Wiilea, 18"" May 9, L. R. II Appeal Oiiaes 589. 3 Victoria, 1879 .Ian. 25, L. R. IV Appeal Cnacs 156. T 4U INSOLVKNCY privii.e«i:d 4;laim auaixst joixt estate. lloLKE AND HaILEV AND THE JJaNK OK Al!.STRAI,ASIA V. Flowek KAi/riNd cS: Co. ' 31. The 30th section of the Insolvent Act of the colony of Vidorid, enacts: " That any creditor who shall have or hold any security or lien upon any part of the insolvent estate, shall, when he is the petitioning creditor, be obliged upon oath, in the affidavit accompanying the petition, and when he is not the petitioning i-.reditor, in the affidavit produced by him at the time Oi' proving his debt, to piit a value upon such security, so far as his debt maj"" be thereby covered, and to deduct such value from the debt proved by him, and to give his vote in all matters respecting the insolvent estate as creditor only for the balance, etc. And in case any cre- ditor shall hold any security or lien for payment of his debt, etc., upon any part of the said estate, the amount or value of such security or lien shall bo deducted from his debt, and he shall only be ranked for, or receive payment of, or a dividend for the balance after such deduction." In construing this enactment, the Judicial Committee held, that it does not destroy the distinction between the joint and separate estate of an insolvent, so as to compel ii creditor holding a mortgage security on the separate estate, to estimate and deduct its value before he can be allowed to prove against the joint estate. 32. The English law of bankruptcy allows a, joint creditor, though holding a security on the separate estate, to prove against the joint estate without giving up his seciirity. Loud Ciielmsi'ord. p. ;{9l:— The question to be determined in, whether Flower Salting & Co., being creditorn of an infiolvcnt partner- .ship, before the}' could be allowed to prove against the joint estate of the insolvents, were bound to value a seeuritj' which they held ui)on the separate estate of one of the partners. If the question liad arisen in this country, there would have been no difficulty in answer- ing it. It was asserted, indeed, in argun'ient, that the rule, tliat the security to be deducted must be upon the same estate as tliat ngainst which the proof is directed, was not laid down as a general rule by Lord Elilon in Ex parte Peacock (2 Gl. and Jan. 27). This, however, was not the opinion of Lord Lyndhurst, who in the case In re Flumner (1 Ph. (JO), said: "In administration under l)ankru})tcy, the joint and separate estate arc considered as distinct estates: and jiecordingly it has been held : that a joint creditor having a security ii])on the sei)arate estate is entitled to prove against the joint estate without giving up liis security ; on the ground that it is a different estate. That was the principle upon which Ex parte Peacock i^ro- 1 Victoria, 18G6 Felj. 1, III Moore N. S. 305. id INSOLVENCY 415 VniVILEOEO an ^assw with the other creditoi-s. That the colony of Victoria, in intnxlucing the new Code of Insolvent Law, which is applicable to the present question, had been careful to prevent such injustice in the distribution of an insolvent's estate. And he contendeil, that this was effectually done by the provisions of the Colonial Act, 5th Vict., No. 17, and especially by the yJth section But if this were the establishment of a new Code of Insolvent Law, and it was the object of the Colonial Legislature to prevent the operation of a rule which tliey considered unjust, it is hardly to be imagined that they would have committed their intention to the equivocal meaning of a few words in the single section of the act. It is just as reasonable to suppose that, knowing the rule established in this country, which is fbundeil not upon any statute, but upon general principles applicable to many other cases, they did not intend to disturb it. The alleged injustice of the rule has been endeavoured to be shown by viewing it on one side only. While the joint creditors are alone regarded, it may be successfully agreed to bo a hardship upon them that a creditor secured on a separate estate should resort to the joint estate, and so reduce their dividend ; out, on the other hand, it may be contended, on the part of the separate creditors, that it would bo a great injustice to them to compel the joint creditor, with a separate security, to have recourse, first to the separate estate, which he might exhaust, and thus leave the separate creditors without a fund ftjr the payment of their debts. These conflicting views seem to put the argument of His Lord- ship aside, so as to allow the operation of the well established prin- ciple, that, upon a joint bankruptcy or insolvency, the joint estate is the fund primarily' liable, and that the separate estate is only brought in in case of a surplus remaining after the separate cre- ditors have been satisfied out of it. vrannfkk of sharkn. Levi v. Ayers ' 33. By the South Avxstraliau lusolveut Ai-t of 1860, a transferee of shares of a baukiug corporation who takes the beneficial owership, is bound to indemnify the transferor against the liabilities in respect of them subsequent to the date of the transfer. 34. An assigMiee to an insolvent who holds such shares is not subjected to this provision, as the law makes a distiuc- l South Australia, 1878 .May 2S, L. R. Ill ApiH'al Cases 842. '•f^ 1 I fin I: I m 41fi INSOLVENCY Tlt.WNVER OF SHARES. tioii between persous takiug au assig'umeut of shares or the beiielicial interest therein l)y way of contract and imdei 'm ordinary deed, and the assignee of a bankrupt or insoh'eut who takes his whole estate by operation of law. Wilkin^ V. f'hj, 1 Mer. 244. Sir Haknes Peacock, p. 855 : — It Mooms to be quite contrary- to the priiii'ipk'ot'flic laws relating to bankrupts or iiKsolvents, that the as.sif;nc'e.s, taking the proiK'rty for division amongst his creditors, should be liaiile, eitlier personally or out of the assets of the estate, to indemnify the bankrupt or insolvent in respect of any claims to Avhich he may have rendered himselt liable in respect of a particular portiou of the estate, and from which claims he has not been dis- charged by his bankruptcy or insolvency. INSURANCE abaxdoxment. Provincial Insurance Company of Canada v. Leduc ' 35. Where notice of the abandonment of a ship is given by the insured to the insurers, the silence of the insurers will not amount to au acceptance of the abaudonment. 36. But if without any notice to the insured, the insurers take possession of the ship, and repair it and retain it in their possession for some time without repudiating the abandonment, there is a constructive acceptance of the abandonment by the insurers, which has the same effect as au express acceptance ; and the ii surance company must be held liable as for a total loss. 37. Held also, that the constructive acceptance of the aban- donment is an agreement which is a waiver of a plea of breach of warranty. Sir Barnes Peacock, j). 237 : — The case oi Hudson v. Harrison '' was cited as an authority to shew that the silence of an insurer has been construed to be an acceptance of an abandonment. It is not necessary to go to that length in this case. Their Lordshijis consi- der tliat Mr. Justice Story was correct in stating that an insurer is not i)ound to signify his acceptance of an abandonment. If he says notliing and does nothing, tlu' projier conclusion is Ihat he does not mean to accept. In the ease Uk- - jiiNifw-Zi^aitw** ..., INSUEANCE 419 OSS, which It was not a case of mere stranding. The vessel could not have been raised and put into a condition to continue her voyage to tl>e place of destination. Further, it appears to their Lordships that Article 2545 must be read in conjunction with Articles 2588, 2543 and 2544, and that it does not apply to the case of an abandonment which has been accepted. It puts the case of stranding very much upon the same foonng as that upon which it stands under the law of this country. Abandonments made and accepted are treated of in Ar- ticle 2547. It is there said : " Abandonment made and accepted is equivalent to transfer, and the thing abandoned, with the rights pertaining to it, becomes from the time of abandonment the properly of the insurer. The acceptance may be either express or implied. " Article 2549 of the Code was intended to prevent a notice of abandonment when accepted from being defeated by any subsequent event. The Sunorior Court held that the defendants were estopped, by the acceptance, from urging against the plaintitf objections founded upon the breaches of condition, and awarded the plaintiff half the amount, viz., S3500, of the declared value of the vessel. The Court of Queen's Bench (Mr. Justice Badgley dissenting) held that the allegations set forth by the plaintitf in his declaration, which included an allegation of acceptance, were fully proved, and that by reason thereof and of the abandonment accepted by the company, the ])laintiff was entitled to recover the full amount insured, viz., ;$5000. Mr. Justice Monk dissented on the question of amount only. He considered that the plaintitf was entitled to recover but only one-half of the amount insured. Their Lordships are of opinion that by the acceptance of the abandonment, the defendants became liable as for a total loss. In Smith V. Robertson ' it was held that the insurers could not be allow- ed to say that the loss was not total after they had acquiesced in the abandonment as for a total loss, and had thereby admitted that the loss was a loss of that description. In that case the insurer had no right to abandon, but merely a right to give notice of abandon- ment. But the moment the notice was accepted, the abandonment took etfect ; the loss immediately became tantamount to a total loss ; and the insurers were precluded from relying upon the subsequent recovery of the property because they were not allowed +o say that the loss was not total. This case, as it appears to their Lordships, gets rid of the objection of Mr. Justice Badgley to the form of the plaintiff's declaration. He says : — Ifow the only loss alleged in the declaration is that " le dit navire aurait piri corps et biens dam le Golfe Saint-Laurent, faisant un iiau- frage entier et complet" which is the absolute total loss of the Code article, where the thing insured is wholly destroyed and lost, in other words, submerged in the Gulf of St. Lawrence. As matter of fact, the alleged total loss is not true, and has been disproved, but it is the only one alleged, and the insurers cannot be made to suffer from any other description of loss or cause of action than that I 1 2 Uow. 474. I IDl' 1 i 420 mSUEANCE ABA.VDONMi:\T. charircd ; mid in strict juHtico tho appellant's action should be dis- nilHscd, iinicss, under the rule of practice, he should elect to amend his dccliinition to moot the proof of the case, which as it is admits of no ott'octivo iihandonmcnt with its alleged accei>tance as set out in thi.' dcolanition." Tlioir Lordships would deeply regret if an objection to the mere form of the declaration, which does not affect the merits of the case, should comi)f'l them to decide against the plaintiff, but they are relieved from thai difficulty by the above-mentioned case in the House of Lords, in which it was held that the insurers after accep- tance could not he allowed to say that the loss was not total. It was contended that the vessel was not insured at the time when she was lost, as the insurance did not extend to a loss in the Gulf of St. Lawrence after the 15th of November, and that an abandonment can be of no avail when there is no insurance. But the vessel was in fact insured ; the loss occured during the time and upon a voyage described in the ])olicy, but there was a breach of one of the wai'- rantios or conditions expressed. In the case of the Cincinnati Insur- ance Company v. Bakeicell \ the insurance was merely against a total loss. But it was held that the insurers could not, after accept- ance of an abandonment, rely upon the fact that the loss was not total, and consequently, that it was a loss within the terms of the policy. There is no distinction in princijjle between an express and a constructive acceptance of an abandonment. The effect produced upon the rights of the parties is the same in both cases. Suppose the defendants, upon the receipt of the notice, had written to the plaintiff, and said that, as the loss took place in the Gulf of St. Law- rence after the 15th of November, they did not consider themselves in strictness liable to make good the loss ; that they found upon inquiry that Mr. Eouth, their agent at Montreal, through whom the insurance was elt'ected, was under the impression that that part of the warranty which declared that the vessel was not to be in the Gulf of St. Lawrence after the 15th of November applied merely to the case of its going west, and that, under those circumstances, they did not consider it right to avail themselves of the breach of warranty ; that they acce])tcd the abandonment and would make the best they could for themselves of the salvage, and would settle as for a total loss. Or sui)pose they had gone further and stated that they con- curred with Mr. Eouth in his construction of the policy, and that they accepted the abandonment. Suppose that, after they had raised the vessel they had sold her for 610,000 in excess of the salvage ex]ienses, it is clear that the plaintiff could not have turned round and claimed the full amount of the proceeds of the vessel upon the ground that the loss was not caused by a risk insured against, and that he had, consequently, no right to give notice of the abandon- ment. If the plaintiff could not have treated the abandonment as a nullitj', surely the defendants cannot be allowed, after acceptance, to rely upon a breach of the warranty or condition of which they 1 4 B. Muiiroe's Reports (Kentucky), 541. INSUEANCE i21 CUNDITIOXB IN POLICIES. had full notice at the time of their iicceptixnce of the iil):iiuloiiinoiit. Estoppels are mutual. If the mouth of one parly is clo.-eii, m) also is that of the other. By the abamlonraenf and the accoplance of the abandonment, the matter wa>< dosed. The whole interest of the l)laintilf in the thing abandoned was transferred to ",he defendants, and became their property (Article 2547). There arc many cases in which it may be very douljil'til wiiether in point of law, the particular fact amounts to a broach ol Wiirranty. But if, after a constructi\e total loss and notice of abandonment, the insurer, with full knowledge of all the facts, accei)ts the notice of abandonment, he cannot, when called upon to pay the amount in- sured, resile and rely upon a breach of warranty. The effect of acceptance is, as remarked by Mi'. .Vrnould, well expressed by Boulay Paty ' — " Par lew aeccjitatlon cilontdirc il s'estfait unpacte entre les parties qui a tout termini " . ' The only remaining question is as to the amount to wliicli the planititt'is entitled. Jean Baptiste Vigneau proved that his brother, JJenjamin Vigneau, who was the captain of the vcssol and wa,-. lost in her, told him that he was in debt to the plainiilf, that he had given him a guarantee for the debt, and had authorized him to insure the vessel Babineau and Gaudry in his own name, (o the end tliai if the vessel shoidd be lost the plaintiff might receive tlie wholis of the insurance money, and pay himself the amount which Bonjamin Vigneau owed him. Their Lordships consider that this declaration of the deceased against his own interest was evidence sufficient to |)rove limi the plaintiff was authorized by Benjamin Vigneau to insure the iialf of the vessel which belonged to him, and to receive the amount in- sured. This, coupled with the interest which the plaintitf had in the other half of the vessel, entitled him to insure the whole vessel, and to recover the full amount insured. Mr. Justice Badgky appears to liave overlooked the evidence of Jean-Baptiste Vigneau, when he stated that his intere.-t in the insur- ance money did not exceed one-half share thereof. It is clear that an agent who insures for another with his authoritj' may sue in his own name. The mortgage did not afi'ect the plaintiifs right to insure for the fid 1 amount of the value of the ve.anuot afterwards take ad- vantage of the nullity of the i>olicy in consequence of the violation of the condition. This accei)tance of the abandon- ment, whether express or constructive, is a waiver of the right to raise the question of nullity. For the remarks of their Lordships, See Insurance : abandonment. White v. The We.stern Assurance Company ' 41. Where a policy of fire insurance has been transferred in trust, and one of the conditions of the policy requires 1 Lower Canada, 1862 Dec. 3, 1 Moore X. S. 73. 2 Quebec, 1874 June 2G, L. R. XI P. C. 224. 3 Quebec, 1875 March 9, 7 R. L. lOG. |;ii INSURANCK 423 t'OSniTIOXS IX POIilCIES. that the assignor shall make and fnrnish the necesKary proofs in support of the claim for loss before the same shall be recognized and payable, the furnishing of such proois by the assignor and not by the assignee is a condition pre- cedent to the right by the assignee to recover the amount of the loss. 42. In a policy containing the condition that no loss shall be paid unless the proofs of the loss l)e made within a spe- cified time, the delay is a material part of the condition, and, therefore, the assured cannot claim any indemnity if he has not sent in proper proofs within the delay. 43. The mere silence of the company with regard to proofs sent in after the delay mentioned in the condition, does not amount to a waiver of the condition in behalf of the company. Per CURIAM.' — Their Lordships arc clearly of opinion that the 30 (lay.s are a material part of the condition; tso that unless there is a waiver,the ass-ired cannot recover unless he sends in the proper proofs within 30 dr.ys. It was said, that although it was a condition pre- cedent that the proofs should be sent in, yet the periofl of 30 days was not material ; but if that were so, tlion there would bo no time appointed at all within which the proofs were to be sent in, and the assured might wait one. two, or three, or four years before he sent in his proof, and still be entitled to recover, which would appear to be entirelj' contrary to the true meaning of tiie condition. And indeed the cases which have been referred to which have been decided in England, — the case of Meeson v. Hardy, and another case in 1 Ellis and Ellis, — are decisions by the Courts here that the time mentioned is an essential part of a condition of thi.s kind, and that is affirmed by the clause which has been cited from the Code of Canada, by which, if, by some impossibility, the assured is prevented from sending in his proofs within the proper time, further time may be given to him. Therefore their Lordships think that it was es- sential that; he proofs should be sent in within 30 days, unless that was waived. That being so, their Lordships are also of opinion that the not answering a letter sending in proofs after the 30 days — the mere fact of not answering that letter — cannot possibly be a waiver of the not sending tjie proper proofs in, and not sending them in within proper time. Whether, if the proofs, or what appear to be and jjro- fesscd to be proofs, had been sent in within the 30 days, asking, as this letter does, whether those proofs were satisfactory, — whether in that case the not answering it, when if they had answered it pos- sibly the assured might have sent in proper proofs in time, would bo a waiver, it is not necessary to consider ; but it appears to their Lordships that after the 30 days are over, and when the assured had a defence to the action, their not answering a letter cannot be suffi- cient to amount to a waiver. Their Lordships do not mean to say 424 INSUJIANCK tONDITlONK IN POl.K'lKM. that there may not lio a waiver after the 30 days are over. It is pos- hiblo tliat if they did aiiyliiing wiiieh misled .he assured, or jxit him to exjiense, there lui^iit be a waiver after the time was ovci- ; hut they are clearly of o|)iiiii)M tiiat not answering this letter sent after the 30 days cannot of it-elf l»e sufficient. Then with res))ecl to the letter of the 31st August, that was in answer to a letter of ihe 24th of August, in which Mr. Whyte says not only the 30 dajs have elapsed, but " would you allow me to remind you that (50 day.-- have elapsed since ])roof was furnished." Tlierefore that was when more than 90 days liad elapsed, and wlicn the assured was alleging that he liad performed all the conditions, and was entitled to recover, and when the time had long gone by. Then in answer to thai tlie assurors say : — "We have to intbrmyou " that the Company consider that they are not liable for an^' loss " referred to in the cla'm you liavo made under said policy, and de- " cline paying it." Jl that letter also had been sent within the 30 days before the time had elapsed, or had been sent after the 30 days had been waived, and had been sent at a time when it was still pos- sible for the assured to have sent in proper proofs, then it might well be said that tlie (,'ompany, by saying they are not liable for tlie loss, are not relying on the non-compliance with the sending in the proper proofs, but arc relying on some defence on the merits res- pecting the fire itself. But wlien tlie time for the sending in the proofs has elapsed, merely writing to say they are not liable for the loss cannot in their Lordships' opinion amount to any waiver, be- cause it is perfectly consistent with that that the Company are going to saj' that they are not liable for the loss refered to because the projier time for sending in the proofs has elapsed and tlie proofs have not been sent in. Therefore their Lordships are of opinion that the direction of the judge was perfectly right on that part of the case, and that the ver- dict of the jury Avas right, and that the decision of the Court was correct ; and therefore they will humbly advise Her Majesty that the appeal be dismissed with costs. See I) AMxQ^ : (lungers of /he sea, CONSTRVC'TIOX OF COXTRACT. friiANT V. The .Etna Insubaxce Company ' 44. An assurance policy -was taken in July 1858 against lire for twelve months, on a steamship, Avhich was described \n the policy as " now lying in Tate'^s Dock, Montreal, and in- " tended to navigate the St. Lawrence and lakes from Hamil- " ton to Quebec principally as a freight boat, and to be laid " up for the winter in a place approved by the company." The ship never left the dock after the insurance was effected and was destroyed by fire in June 1859. The Judicial Committee held that as there was evidence of a reasonable If 1 Lower Canada, 1862 July 1, XV Moore 516. INSURANCE 426 CONHTHVCTIOX OF ('ONTRAtT. iiud bond fide intention ou the part of the insured to comply with the conditions of the policy, and as there was no warranty in the contract that the shiji would navigate, but only a declaration of her intention to navigate, the policy was not void by the fact that the steamer never left the dock. Lord Kihosdown, p. 527 : — It was contended before us, in a very able argument, that the words referred to contained no warranty ; but that if they did the warranty extended only to this — that an in- tention to employ the ship in the manner described was bond fide entertained by the insured when the policy was etfectcd. It was argued that this would bo the meaning of the woi'ds if Ihcy were merely representations, according to several authorities cited ; 4ind it was argued that though the eft'ect of a warranty was very •different from that of a representation, the meaning of the words -used must be the same, whetlier they wore found in or out of the policy. Their Lordships are of opinion that the question depends entire- Jy on the meaning to be attached to these words. If they import an agreement that the ship shall navigate in the manner described in the policy — then being an engagement contained in the policy — they must be considered as a warranty, and the engagement not having been performed, whether the engagement was material or not material, the insurers are discharged. But their Lordships think that this is not the true meaning of the words used. They consider the clause in question amounts only to this : The assured says, my ship is now lying in Tale's Dock ; I mean to remove her for the purpose of navigation in the manner described, and if I do the policy shall still be in force ; but in that <'ase I engage to lay her up in winter in a place to be approved by the Company. This construction, which implies no contract to navigate, seems to th"ir Lordships the natural meaning of the words used, and imputes a reasonable intention to the parties to the policy. Their Lordships, must, therefore, advise ller Majesty to reverse the judgments complained of, and to direct that the defendant's motion be dismissed, and that the appellant's costs of the motion in the Superior Court, and of the appeal to the Queen's Bench, and of the •appeal to Her Majesty in Council, be paid to him by the respondents. Anderson kt al v. The Pacific Fire and ^Lvrine Ins. Co. ' 45. The respondents were the insurers of a ship for ^4,000, and had taken a re-insurance with the appellants lor iI500. In the proposal of re-insurance it was stated that the ship was " insured only for i;4,000." Held, that these words must be construed so as to mean the original insur- ance with the respondents, and not the total assurance in all companies whatever. 1 Victoria, 1867 July 7, XXI Law Times N. S. 408. 42(1 I\.SrTPA\(;K i 1! It 4M>XNTRIT4'TIO\ OP <'05rTRA4'T. Coi.uM.M, Insuuance C'omi'any of Xkw Zealand v, Adklaidk Mauink Inhubance (^ompanv ' 40. "Whoro tho insured propose in writtiug to insure a Avht'ivl cargo " at and from" port, and the insurers answer that they accept the risk " in accordance with your written rc.Mjuest," " from " port, there is a complete contract to insure at and from port. 47. And where the contract of insurance related to a wheat cnrtfo then on board or to be shippeu, the risk commenced as woon as any portion thereof wan on hand. See Contract : eoclem verba. T/ie Beacon Life and Fire Assumnce Cumjmni/ V. Gibh. 48. The charterers of a v^essel were also the purchasers of the (!argo consisting of wheat to be shipped on board ; th»^ vendors delivered the wheat gradually from time to time. Held by the Judicial Committee that such delivery vested in them a right of property and possession, and consequently, gave them an insurable interest in such portion as had b(!en so delivered, even admitting that the purchasers had the right to return the wheat Avhich had been delivered, in the event of the sellers neglecting, without lawful excuse, to complete the supply, because they also had the right to keep the portion received by paying for it, if they so chose. Sir Baune.s Pkacock, p. 138 : — Iii many cases of contracts to sup- ]ily 11 quantity of fjoodti to bo dolivored within a lixed period, thf whole quantity cannot, from the very nature of the case, t"' doli or ed at one time, and it must be frequentl}' happen, as ii for supplies of ])rovisions for the army or navy, or :i blishments, that the quantities first delivered are ap}i aptually consumed by tho ))ersons t(; whom they . belore the expiration of tho period within which the win. is to 1)0 performed. As no time was tixod by the contract for tie payment of the purchase money the purchasers mightnot have been iiouml, if no loss had occurred, to pay for tho wheat on board from time to time until the whole cargo had been supplied ; but it does not follow that they had not an insurable interest before the price was ])aid or jjayable. It appears from wliat follows that a man may have an insurable interest in goods for which he has neither paid nor liecomc liable to pay. In the present case, if no loss had happened, and the sellers, with- out lawful excuse, had neglected to supply a complete cargo, the purohasei's must liave paid for tho wheat which had been put on board, unless they returned it. If the sellers had completed the cargo the purchasers must have paid for the whole. In either case they had, at the time of the loss, an interest in tho part which had been cts estu- led ami elivorcd contract 1 Australia, 1886 Dec. 18, L. R. XII Appeal Oases 128. ixsrr{A>x'E 427 4-«>NMTRI'4'TIOW Of t'OIV TRACT. ])Ut Oil lioiird. In til.) ono ciiw, thai tlipy might lio alilo to return it to t'xcuso thi-ni from piiymont I'or it in tho evoiit of tin'ir ok-i-tin;;- to ]ml an oiiil to tho contract in case of tho non-uomitlotion of the HUpiily ; in the other, tiiat tliey mij^ht have the ^oodw for wliicii thev "would lie oliliged to pay. Anderson v. Marcil L. R. !•> C P. 5H • O.mii/alf v. Wetherel, 1» Ji. a- <'.j>. :ixi : Ian Castcll v. JJmker. 2 E.r. til»!i ; Dunlop v. Lambert, »j CI. <(• /'. »J2t). i^'NiHAiii.i: iKTKHKNT. Stc S.MiE I wlinl coHsHlute Ihe sale. The l^outk Australian Insurance Comjinni/ v. Randell. OPEW «'OVKR. Hm'dMANDASS V. I^ETIIERt,ANDS InDIA SeA AND Fire Insitrance Cojipany ov Batavia ' 41>. The respondont oft'orod to iusurt? xiiidor open rovor the o'oods of tho ai)i)enauts l>etbri' thoy w»>r(> nhippod for a voyao'c I'rom Rann'oou to Bombay. After tho shipment of the c'oodH, application was made for tho policy, but it was refn.sed. Hold in an action for spooiiic performance of a contract of insurance that tho company was bound, the application for tho policy being a sutiiciont acceptance of the proposal. POWKRM OF AGENT. The A[ontreal Assurance Company v. Mrfrtr-i.iVRAT '' 50. The agent of an insurance company has no power to insure a house against lire and to give delay for the pay- ment of tho premium. ^Vhere a promissory note was giAou for the premium of a fire policy, and the building was destroyinl by fire after tho note had became diie and dis- honored, the insured could not recover, tho Judicial Com- mittee holding, that the powers of the agent, beinff public, mixst be taken to have btMMi known to the insured, and tliat the acts oi' the agent in the transaction wore ultra vires and void, not being within tho s(^opo of his general authority as agent, and, therefore, not binding upon the assurance company. The liioHT Hon. Sir John Coleridoe, p. 120: — And upon this they think, the true question for tho jurj' to have been, not what wa.s the real extent of authority expre.'^sly' or in fact i^iven by the a])pellants to Murray, but what the appellants held him out to the world, t(j per.sons with whom they had ilealings and who had no notice of any limitation of his powers, as authorized to do for them. For it cannot be doubted, that an agent may bind his principal by acts done within tho scope of his general and ostensible authority, although those acts may exceed his actual authority as between 1 l{;iiigoon, 1888 Dec. 1, L. R. XIV Appeal Cases 83. 2 Lowin' Ciiiinda, 1859 June "2, XIII Moore 87. P w? 428 IXSUEANCE I'- ■ J "• ill POWERS OF AGENT. hinfiHelfand his princiiial; the i^rivate instructioiiH which limit that authority, and the circumstance that his Jicts are in excess of it, being unknown to the person with whom he Is dealing. Pago 12-4 : — Now, 3Iurray was, indeed, their general agent ; and had he merely made an unwise contract for them, or had he been satisfied with answers which ought to have been deemed unsatifac- tory ; in these and many more suppoit.-ible cases (collusion on the part of the person seeking to be insured being out of the question), the company would have been clearly bound ; in all such supposed cases he would have been acting within the scojje of the authority which the company held him out as possessing. But if he was, and was known to be, an agent only for effecting insurances by policy on payment of u premium (and their Lordships see no evidence beyond this), then ho was not their agent in the act which he really did, and they are not bound by it. BENEWAI.. KiRKPATRICK V. SoUTH AUSTRALIAN INSURANCE Co. ' 51. Wheu the terms of the renewal of certdin lapsed iu- surauco policies agaiust fire had been ascertained by au insurance agent for his benefit, and this agent had remit- ted to the office of the comjiany .£100 in xcess of the premiums owed by him, it was held that, although there had been no appropriation of the money by the company to the renewal of those policies, yet that the renewal had taken place and the <£100 should be applied to the payment of the premiums for such renewal. 8TAMi> o.v POLICY. See Legisl.\TURE : les;ulalive powers. SITMROOATIOSr. The Queuec Fire Assur^vnce Co. v. St. Louis et al ' 52. An assurance company, in paying the amount or part of the amount of the loss is entitled to a subrogation at the time of the payment from the insured of all the rights of the latter with respect to the loss he has sustained. 53. In the case of a general average, the assurer, after having indemnified the assured against the losses sustained for the common benefit, ought to be subrogated in the rights of the assured to the contribution, which in such case mixst be made Pofhier, Oh Assurance />. 248. 54. Held also, that the company may sue alone for damages as subrogated to the insured fo. so mu<'h as they were bound to pa}- and had paid under the policy. 1 South Australia, 1886 Feb. 24, L. R. Xf Appeal Cases 177. 2 Lower Caoada, 1851,Feb. 3, VII Moore 316. INSUEANCE 429 TERsnarATiosr of contract. Sun Fire Office v. Hart ' 55. A policy of iusurauce agaiust fire was issued subject to the conditions : first, that it should not apply to any por- tion of the subject of insurance which should, by reason of gome act done after its date without the consent of the insurers, be exposed to increased risk of fire, or removed to a building or a place other than that described in the policy ; second, that the insurers might terminate it by notice if " by reason of such change, or for any other cause what- ever," they should desire to do so, refunding to the insured a rateable proportion of the premium for the unexpired time of the policy. The Committee held that the insurers had, by this condition, the option of terminating the policy at will, for any and every cause which could reasonably induce an insurer to desire the termination of the policy for the ad- vantage of its business. TOTAL 1.0M8. CuRRiE V. The Bombay Native Insurance Co. = 56. This was a suit brought to recover the amount of two policies of insurance upon the cargo and freigit of a ship respectively ; both policies being for a total loss. The ship having become a wreck, the captain, without taking any steps to save or discharge the cargo, deeming- this impracticable, proceeded to dismantle the ship, and gave notice to the insurers of abandonment of the cargo, and sold both ship and cargo by public auction. A large part of the cargo was afterwards saved. The court below held, that as the cargo might have been and was, in fact, partially saved, there was no such total loss of the cargo and freight as entitled the assured to re- cover on either of the policies. This ruling, as regards the cargo, was affirmed, but as the ship \y'hen she was reduced to a wreck, was incapable of earning any freight, the Judi- cial Committee were of opinion that there was such a total loss of the disbursements, to be paid out of the freight, as to entitle the assurers to recover on that policy. Carrman v. West ' 5*7. Where a ship had been deserted by her master and crew, who previously placed her in a sinking condition, and afterwards had been subsequently taken possession of 1 Windward Island, 1888 Feb. 10, L. R. XIV Appeal Cases 98. 2 Rangoon, 1865 Dec. 11, VI Moore N. S. 302. 3 S. 0. Nova Scotia, 1887 Nov. 15, L. R. XIII Appeal Oases 160. 430 INSURANCE i!i Wf A: * ; II TOTAL L<»SS. by salvors, towed into port, and there sold together with the cargo, by order of the Admiralty Court, for less than the actual cost of the salvage services, it was held, in actions upon policies on the ship and freight respectively, that, as- suming the possession by salvors of a derelict vessel to be only a constructive total loss, the subsequent sale constituted an actual loss of both ship and cargo. Sir Barnes Peacock, p. 167 ; — To constitute a total loss within the meaning of a policy of niiirine insurance, it is not necessary that a ship should be actually annihilated or destroyed ; it maj', as in the case of capture and sale upon condemnation, remain in its original state and condition ; it may be capable of being repaired if damaged ; it may be actually repaired by the purchaser, or it maj'not even require repairs. If it is lost to the owner by an adverse valid and legal transfer of his right of property or possession to a purchaser by a sale under a decree of a court of competent jurisdiction m con- sequence of a peril insured against, it is as much a total loss as if it had been totally annihilated T Mullett v. Sheddon, 18 East 304. The folloicmj cases toere also commented upon or referred to : Stringer V, Enylish and Scottish Marine Insurance Company, L. B. 42 Q. B. G76 ; Holdmorth v. Wise. B. d^ C. 794 ; Parry v. Aberdeiit, B. tt- V. 411; Eoux V. Salvador, 3 Bimj {JV. C.) 2(J7 ; Mellish and Andrews, 15 East, 13 ; Green v. Royal Exchumje Aasurance Company, (i Taunt, t!S ; Idle. v. Royal Exchanye Assurance Company, 9i Taunt, 755 ; Ro- bertscni \ . Clarke, I Biny, 4:45 ; Cainbridye v. Anderson,! R)/ A Jlood, (JO ; Farnivorth v. Hyde, 18 C. B. (N. S.) 865 ; Cary v. Buii, 8 Appeal Cases, 31>3. wakkaxty of seaworthixesm. Jenkins v. Heycock ' o8. In a A'oyage policy, there is a contract of warranty of seaworthiness, but in a time policy, there is generally no such contract. However, that warranty, if it exists in the latter case, is only at the commencement of the risk, and is not a continuing obligation cast upon the assured while the risk is running. Sir John Jervis, p. 300 : — Then comes the question, assuming she was seaworthy when she started on her voj'age, is there a further warranty that she shall be seaworthy at every intermediate port she touches at, pending the progress or coniinuance of her voyage, which is to last for a specitied time? Now, if it had been a voyage jxjlicy, there is no question, although 'there had been a warranty of seaworthiness when she started on her voyage, there would be no warranty that she should be seaworthy at an intermediate ])ort at which she touched, which she is endeavouring to mtdce intermediate ; and if it were to be held (as I took the liberty of pointing out in the course of the argument) that there was a warranty in atime policy I Calcutta, 1858 June U, VlII Moore 301, INSURANCE 431 WARRAXTT OF SEAWORTIIIWEHS. that the ship shall be seaworthy at her departure, and at every in- termediate port during the currency of the tiuje polic}-, it would be holding that there is a warranty to a greater extent in a time policy than there would be in a voyage policy. Therefore, I apprehend in this case, as in all cases, we must abide by the general rule, that a policy of indemnity, being a written instrument, the terms of that instrument must be construed subject to certain conditions, one of which is, that in a voyage policy, custom and decision have annexed to that contract a warranty of seaworthiness, and that there 's no custom and no decision which warrants the court in saying, that in a time policy any such war- ranty attaches. If it were necessary for the decision of the case, we should be inclined to go to the full extent of what Lord Campbell says in the House of Lords. It is unnecessary, however, to do so in this case ; because, if there was a warranty, it was satisfied at the time the voyage commenced, and there was no wari'anty at any in- termediate port. BiccARD V. Shepheud ' 59. A coutract f)f insuranoo was made on ("opper ore ou board a ship "at and from the anchorage of H. and N. to S. to commence upon the loading on board the ship at and from the above ports." Part of the ore was loaded at H. and part at N. The ship was seaworthy at H., but became uuseaworthy before leaving N., in consequence of being over-loaded, and was lost on her voyage from N. to S. The Judicial Committee held that the insurer was entitled to recover for the ore shipped atH., bitt not in respect of the ore loaded at N., as the policy covered two risks, and the sea A'oyage was to be considered as beginning at different times, and that the implied warranty that the ship should be there fit to carry the additional, as well as the original cargo, ap- peared by the evidence not to have been complied with. GO. There is a warranty as to the seaworthiness of the ship loaded as well in an insurance upon goods as upon the ship itself, and this warranty is of a similar nature in both cases. Lord Wensleydale, p. 493: — Some propositions in the doctrine of the imijlied warranty of seaworthiness, which form part of every contract of marine insurance on voyages (for to time-policies it does not apjjly) are perfectly settled. They are laid down in the case of Dixon V. Sadler (5 Mee. and Wels. 405), in which I gave the Judg- ment of the Court of Exchequer, with the concurrence of my brethren, founded on the principle laid down in several ])revious cases. Btick v. Royal Exchamje Ai l.SO. 3 Bengii '836 Dec. .J, 1 Moore r.5. nVTKEXATIOIs^AL LAW 435 ALTERATIOX OF K..4WS I.V BRITINH rOI^OWIES. Loud Brougham, p. 272: — It is agreeil, on all hands, that a foreign settlement ohtained in an inhabited eountry, by conquest, or By cession from another power stands in a ditferent relation to the present question, from a settlement made by colonizinjf, that is, peopling an uninhabited eountry. In the latter ease it is said, that the subjects of the crown carry with them the laws of England, there being, of course, no lex loci , in the former case it is allowed, that the law of the country' continues until the crown, or the Legis- lature changes it. This distinction, to this extent is taken in all the books; it is one of the six propositions stated in Campbell v. IIall,u.^ quite clear, and no matter of controversy in the case ; and it liad been laitl down in Cai(»'ft's case ; in Dutton v. Howell; in Blankard V. Gold Sdlk, by Lord Holt, delivering the judgment of the court ; and nowhere more distinctly and accurately than in the decision of this court. Two limitations of this proposition are added, to which it may be material that we should attend. One of those refers to conquests, or cessions, in Calvin's case an exception is made of intidel countries; for which it is said, in Button v. Howell, that Lord Coke gives no authority, yet it must be admitted as being consonant to reason. But this is treated in terms as an " absurdity" by the court in Campbell v. Hall. The other limitation refers to new plan- tations, Ml. .Justice Bhickstone says, that only so much of the English law is carried into them by the settlers as is applicable to their situation, and to the condition of an infant colon}^ And Sir W. (jrant, in Attij Gen. v, Stuart, applies the same excej)l ion even to the case of conquered or ceded territories, into which the English lawofpropertj- has been generally established. LTpon this ground, he held that the statute of ^Mortmain does not extend to the colonies governed by the English law, unless it has been exjjressly introduced there, because it had its origin in a policy peculiarly adapted to the circumstances of the mother country. The Advocate (texeral of Bexual v. itAVEE Sl'rnomoye DoHSEE ' 68. The question iu this cause was whether by express euactmeut the English law oi'/e/o de se against suicide, in- cluding the forfeiture attached to it, was extended iu the year 1 844 to Hindoos destroying themselves in East India. Their Lordships considered that this part of the English law was not introduced in that country when it became subject to the crown of England. The Eight Hon. Lord Kinosdown, p. 59: — Where Englishmen establish themselves in an uninhabitecl or barbarous country, they carry with them not only the laws, but the sovereignly of their own state; and those who live amongst them and become members of their community become also partakers oi', and subject to the same laws. But when they establish themselves, in a populous, civilized 1 Unlcutta, 18(53 June 30. 11 Moore N. S. T2. 436 I NT I-: UNA TI OX A I. L A W hi s AI.TKRATIOX OF I.AWN IX nRITIKH t'OLO^IIKH. and Clirif'tian countiy, the .settlers become sulijeclto the laws oftliat country. But this was not the nature of the tirst settlement made hy a few foreif^ners tor the ])iirpose of trade in a ver}- iiopulous and hin'hly civilized country under the ifovernment of u ])o\vcr- fnl ]\[ah()mcdan ruler, with whose sovereignty the Kniclish Crown never attempted nor pretended to interfere for some centuriea afterwards. If tlie settlement had heon made in a Christian country of Europe the settlers would have become subject to the law of the country in which they settled. It is true that in India they retained their own laws for their own fijovernment within the Territories which they were permitted, by the rulinjf powers of India, to establish, liut this was not on the ground of general international law or because the crown of England or the laws of England had anj' pro])er authority in India, but upon the principles explained by LordStowell in a very celebrated and beautiful passage of his judgment in the ca.se of the Inilian Chief vs. Soli. Adm. Hep. 237. The laAV and usages of Eastern countries where Christianity does not prevail are so at variance with all the principles, feeling and habits of European Christians, that they have usually been allowed by the indulgence or weakeness of tlie i»otentates of those countries to retain the use of their own laws, and their factories have for many purposes been treated as part of the territory of the Sovereign from whose dominions they came, But the permission to use their own laws by European settlers does not extend those laws to Natives within the same limit who remain for all intents and purposes subject of their own Sovereign and to whom European laws and usages are as little suited as theirs are to European. Theses prin- ciples are too clear to require any authority to support them but the}- are recognized in the judgment to which we have also referred. But if the English laws were not applicable to Hindoos on the tirst settlement of the country, how could the subsequent acquisition of the rights of sovereignty by the English crown make any alter- ation ? It might enable the crown by express enactment to alter the laws of the country, but, until so altered, the laws remained un- changed. The question, therefore and the sole question in this case is : whether by express enactment the English law of felo de se, in- cluding the forfeiture attached to it, had been extended in the year 1844 to Hindoos destroying themselves in Calcutta. "We were referred by Mr. Melville in his very able aigumentto the (Charter of Charles II in lti(51 as the tirst and indeed the only one which in express terms introduces English law into the East Indies. It gave authority to the Company to a])point governors of the several places Avhcre they had or should have Factories and it authorized such governors and their council to judge all persons belonging to the said Company or that should live under them in all causes whether civil or criminal according to the laws of the kingdom of England and to execute judgment accordingly. The English crown, however, at this lime clearly had no juri- diction over native subjects of the Mo-.(jue and the charter was ad- mitted by Mr. Melville as we understood him, to apply only to the IXTKlJXATIoXAL F.AW 4:57 of Europe oimtry in tlioir own liicli (hoy 1, Imt this •iiiise the iiuthonty ill !i vary M' of tlie iiiify does oling iuul II owed I)}- I'ounti'ios formally c'igii from lieir own :) Xativos j)urpo.se(s liuvs and L'tios prin- hem but refer rod. ^s on the ■quisition ny alter- alter tlie inod un- tliis case de se, in- the year }nt to the only one t Indies, of the s and it porsonH thoin in s of (he no juri- was jid- ►' to the ALTKRATiOX OF I.AWN IS BRITISH COLOXIK**. i'liiroiH'iui servants of the Company ; at all events it could iiave no apiilieatiuM to tlie ([ueslioM now under consideration. The Hiinlish law civil and criminal has lieen usually considered lo have lieen un- to Xatives within the limits of Calcutta in the year IT^ti U(l)licaiile M'l liv the Charter liUli, Geo. I. X'eitlier that, nor the suhseipicnt charters expressly declare that the Knglisli law shall bo so applied, but it seems to have been held to be the necessary consequence t)f the provision contained in them. But none of those charters con- abl • n by i\: I'foiturc wise of tlie crime of self-murder, and with respect to other olfeiiceK to which the charters did extend the application of (lie criminal laws of Kngland to Natives not Christians to Mahoinedans and Hindoos has been treated as subject to qualitications, wilhoir which the t'xecution of the law would have been attended with intolerable injustice and cruelty. To ajiply the law which punishes the marrying a second wife whilst the tirst is living to a people amongst wlmm polygamy is a recognizeil institution would have been monstrous and ac- cordingly it has not been so applied. In like n\anner the law which in I'jigland most justly punishes as a heinous otfence the criminal knowledge of a female untler ten years of age cannot with any ]ii-u- priety lie ap])lied to a country where })ul)erty eoniiiuMices at a much earlier age and where females arc not unfrequently married at the age oi' ti'ii years. Accortlingly in the case referred to in Xlw argu- ment the law was held not to apply. Is the law of forfeiture for suicide one whicli can be considered pro|)orly a])plicatile to Hindoos anil ilahomedans. The grounds on which suicide is treated in England as an olfence against the law and jiunished by forfeiture of the offender's goods ami chattels to the King are stated more full}- in the case of Halca V. Petit, Plowdin's liqmrts, p. 2()1 than in any other book which we have met M-ith. It is there stated that it is an offence against nature because against Coil and against the King. Against na- ture liecau>e against the instinct of self-preservation ; against (lod because against the commandment : Thou shall not kill, and a felo de se kills his own soul ; against the King in that thereby ho loses a subject. Can these considerations extenil to ntitive Indians not Christians, not recognizing the authority of the Decalogue and owing at the time when this law is supposed to have been introduced no allegiance to the King of Great liritain ? The nature of the punishment also is veiy little applicable to such persons. A part of it is that the body of the otfender should be dejirived of the rites of Christian burial in consecrated ground. The forfeiture extends to chattels real and personal, but not lo real estate; these distinctions at least in the .sense in which they are understood in England not being known or intelligible to Hindoos and Mahomedans. Self-destruction though treated by the law of England as murder and spoken of in the case to which we have referivd in Plowden as the worst of all murders is really as it affects society and in a moral 438 INTEIJNATIONAL LAW ATTKnA'nOK' OF I.AWN IV nRITISH (^OI.O^TIfltt. and rcliirioiis ]i(iint ofvii'w of a clmractiT vory diffbrcnl not only from all otluT inunlcrs, bin from all other foloiiii's. TlR'soiiistiiu'lioiis are jioiiiled out witli groat force and clearnoHM in tlie notes attaehed to the Indian ("ode as orifjinally prepared l)y Lord JIaeanlay and the otiiers <'oniniissi()ners. The truth is that the act is one whieli in eonntries not influenoed hy the doetrine nf ('liristianity has heen re- garded iin deriving its moral characters altogether from the eireiim- Htances in which it is committed, sometimes as hlamalile, sometimes as Justitiablo, sometimes as meritorious or oven an avt of positive (hity. In this light suicide seems to have been viewed by the founders of the Hindoo Code who condemn it in ordinary cases as forbiden by t heir religion; but in others, as in tiie well known instances of Suttee ant! self-immolation nnder the car of Juggernaut, treat it as an act of great religious merit, We think, (hei"fore. the law under consideration unapplicable to Hindoos, and if it had lieen introduced by the charters in question with resjiect to Kuropeans, wc siiould think that Hindoos would have lieen exceiiled fnun its operation. Hut that it was not so introduced appears to us to be shown liy the aucli a caso it is very reasenalilo that slie sliould iiideiiuiify the caittors against the oxjicnsos ■whicli her nli^(•endu(•t has occasioned. Or, sIr- may lie invulvod, witli little or no fault or lior part, in sacli sns|piei(m as to maUo it tlio riirlil, or oven tiie tliity ot'a iielli- gorent to seize lior. Tlioi'o may ho no limit oithor in tiio captor or the oapturod, or holli may ho in t'aalt, and in siieli cases thoro may ho (hnnnum absque injuria, and no ground for anything hut simple restitution. Or, tlioro may ho a third case, -vvliorc not only the sliip is in no fault, hut she is not liy any act of her own, voluntary or invo- liintar}', ojion to any fair iirouml of suspicion. In such a oaso a hoi lige rent may seize at her peril, and take tho chance of something appearing on investigation to justify the capture; hut, if ho fails in such a oaso. it sooms voiy lit that ho should ]jay tho costs anil damafios which ho has occasioned. Tho a]ppollants insists that the circumstances of this cuse hring it within tho last of theso rules. The general principios ii]iplicahle to this point are stated with great clearness in a document of the very highest authority, tho Jleport made to King (loo, IJI, in 175::$, ty the then Judge of the Admirult}- Court, and tho lawotlicors of tlio croM'n,one of whom was Mr. ^lurray (afterwards Lord Mansliold), and they are laid tlown in these terms (Pratt's Story, p. 4) : " T'^e law of nations allows, ac- cording to the ditlerent degrees of misbehaviour, or suspicion arising from tho fault of tho ship taken, and other circumstances of the case, costs to he paid, or not to he received l)y the claimant, in case of acquittal and restitution. On the other hand, if a seizure is made without cause, the captor is adjmlgod to pay costs and damages." This pa.ssage (with others) is cited hy Lord Stowoll (then Sir Wil!i:im Scott), and Sir John Mitchell, in their letter to tho American minister, in 1794, as containing an accurate statement of tho laws of maritime capture. Those rules have heen recoo-nised and acted upon hy all the chief maritime nowers; Pratt's Story, p. 35; T'raiti des Prises Mari- limes, vol. JL p. 54; The "Sfafiru", 2 Cranch, Ol> ; Tho "Maria Shrcedes," 3 Rob. 152; The " Triton," 4 Pob. 79 ; The " William," H m. i INTKJJXATIOXAr. LAW HI nRRAfll OF ni.O<'KADt:. <; Mob. :il(i ; Till' " A-'tn'on." 2 Do,ls, 'A; The "Etizuhtth," 1 Arton. 1(». Till' result ol'thi'.-i' imlhoriiifs is, that in order to exempt a ea|it(ir from costs and damages in easi' id' restitution, there inu->l have lieeii some eircumstanees eonneeted with the ship or eargo allor^uv\i i\>i jirimd facie to warrant condeninalion, or, at all events, that a restoration liy a Court of Prize, without further proof, is con- clusive evidence of a defect of probable caiisi'. Mr. Jiistici* Htory ex- iircsse.s his dissent from these proi)Ositions, in which we agrei' with (dm ; and he then expresses himself in these terms (p. 2C>) : If, there- fore, there be a reasonable suspicion of ilh-gal tralic, or a rciisonable doubt as to the proprietary interest, the national character, or the legality of tiio conduct, of the parties, it is proper to stdnnit tiie cause for adjudication before the ])roper Prize Tribunal ; and the captors will be justitieil, although the court should acquit without the formality of ordering further proof. Neither in the texts, nor in the decided cases to which we have thus referred, do wo tind it stated that, in order to subject captors to condemiuition in costs and damages, vexiitious conduct on their pari must be |)roved (oxco])t as some dogreo of vexation is necos- sariiy implied in the detention of a vessel without reasoiuible cause, after she has been reached), or that honest mistake, though occa- sioned by the act of the government of which Ihey are subjects, can relieve them from their liability to make gooil to a tbreigner and neutral (and with this case alone we aredeahng) the damage which, by their conduct, ho has sustained. Nor is it easy to perceive upon what grounds of reason or ju.stice such excuses could rest. If costs and damages were inflicted as a punishment on captors, honest intention would be u consideration of the greatest weight, but the principle on which they are awardetl, is that of atfon ling compensation to a party who has been injured. Vexatious conduct on the part of the captors has, in some cases, been alluded to as re- moving all reluctance on the part of the judge to award costs and damages, as in The " yemesis " (Edwards, liep. 50) ; or as forming a ground for what are termed vindictive damages; or for subjecting the captors to costs and damages, or depriving them of their ex- penses, when, but for such conduct, they might have boon entitled to their expenses against the claimants, as in the cases of 'The '" Spccula- timi" (2 Kob. 2!)3), The ''Washington'' (G Eob. 275), and several others; but no ca.se was cited to us at tho Bar, nor have we been able to fintl any in which wilful misconduct on the part of the captors has been stated to be a Jiecessary ingredient in an ordinary condemnation in costs and damages. So as to errors occasioned by the proceedings of their own govern- 1^ ■- •mm i ! 442 INTERNATIOXAL LAW ItBRACH OP BLorKAni:. nicnt. The captors act as tho agents of the State of which they are citizi'ii-^. and which must ultimately ho responsible for their acts. Prize Courts afford the remedy as between the individuals, which otherwise must be sought by the (government of the claimants against the government of the captors ; but the mode of proceeding caiinol atioct the right to redress, and, if the vState could not urge its own mistakes as a justification of its own wrong, neither, it should seem, should individual citizens be permitted to do so. The law of nations upon these points appears to us to be settled by decisions both in tho American and European Courts. The "■'rhnnniwi Betsey, 2 Cranch, 64 ; The " Actoeon" ?: Dod. 51 ; The "li'.nis;''2Dos of war, and that there are the strongest reasons for making such distinction, can admit of no doubt, liut as regard the particular rule in question, that a capture without ])robable or reasonable cause exposoi? the captors to con- demnation in costs and damages, wo iind it laid down, in the text books and the decided cases, both foreign and domestic, as applicable to captors generallv. to pidilic and private ships inditferently. In the case of -''The Lively" (1 (lallis, 327), Mr, Justice Story states distinctly: ''Public and private ships must be go%-erned by the same principle." Again as t(j the discretion to be exercised 1)^ the Court, When the application of a rule depends on the absence or existence of mis- conduct in both or either of the litigants, the greater or less degree of that misconduct, tln> existence or absence of suspicion attaching to a particular ship or cargo, the greater or less degree of it, and the causes to which it is, in whole or in pari, to lie attributed, it is obvious that there must necessarily be u very large discration left to the judge, for scarcely any two eases can in all such respects be pre- cLseiy the same. But when once, in the opinion of the judge with INTEENATIONAL LAW 4-13 BREACH OF BI.OCKAnE. wliom tho decision rest^;, a p.nrticuliir case is brought clearly within a parlicuhir rule, it should seem that his discretion is at an end. It is not a question merely of costs of suit, but of i-eparation for a wrong, Avhich, when an accidental loss has afterwards occurred, may extend to the whole value of the ship and cargo. Nor, if we were at liberty to rely on settled rules upon our own notions of justice and policy, arc wo quite prepared to say that we should do so in this instance ? The laws which we are to lay down cannot bo contined to the British navy; the rule must be applied to captors of all nations. No country can be permitted to establish an exceptional rule in its own favour, or in favour of particular classes of its own subjects. On tho law of nations, foreign decisions are en- titled to the same weight as those of the countrj- in which tho tribunal sits. America has iidoptod almost all of her principles of prize law from tho decisions of English courts, in cases to Avhich tho}- are ajiplicable, with greater resj)ect than of those of the distinguished jurists of J!aeo in such a state of uncertain blockade, or of having tlieii" ships sent to the country of the belligerent, in order to learn there, from the decision of its Court of Admiralty, whether the conduct they have pursueil is, or is not, ]irotected by an equitable interpretation of an in>trument in which they are nut ex- pressly included. Page. 57 : — It is contendetl by the appellant that in a case of ingress of a port subject to a blockade only de facto of which there has not been any official notification, guilty knowledge cannot be inferred in an individual from general notoriety, ami that a ship is always entitle(l under such circumstances to warning from the blockading scpiadron before she is exposed to seizure. To this proposition their Lordshijis are unable to accede. If a blockade de facto be good in law without notification, and a wiiful violation of a known legal blockade be punishable with confiscation, propositions which are free from doubt, the mode in which the know- ledge has been acijuired by the otf'ende!', if it be clcai'ly proved to exist, cannot be of inijioi-tance. Xor docs there >ccm for this pui'jiose to lie much ditlVrenco between ingress, in which a warning is said to be inilispensable, and egress, in which it is admitted to be unnecessary. The fact of kncnvledge is capable of nuich easier proof in the one case than in tiie other; bul whei\ onee the tact i- clearly proved, the consequences must be the >ame. The reasoning of the learned judge of the court below in this case, and the language of Lord Stowell in the " Adelaide", rej)orted in the note to the " JVeptunus" (>' Jiob. Ill) ; and The " Jlurtige Hark " (3 Eoh. ;52-l) arc conclusive ujion this point. J5ut while their Lordships arc ((uite prei)ared to hold that the existence and I'Xteni of a blockade may be ?-o well and so generally known, that knowledge of it it in an individual may be presumed witliout distinct proof of personal kmnvledge, and that knowledge so acquired may sup])ly tlu' jilace of a direct communication fron' the blockading squadron, yet the fact, with notice of which the iudivi- IXTERXATIOXAL LAW 445 than ralty, i BRKACII OF liroCKADE. dual is to ho fixed, must be one which admits of no reasonable donht. "Any communication which brings it to the kiunvlcdgc of tin- party," to use the language of Lord Sfowcll in The " JioUa" (it Euh. ;>(JT), "in a way which could leave doulit in his mind r.s to (he authenticity of the intijrmation.'' Again the notice to be inferred from general notoriety, must be of such a character that if conveyed by distinct intimation from a com- petent authoritv it would have bec7^ binding; the notice cannot be more effectual liocausi; its existence is presumed, than it would 'le if it were directly established in evidence; the notice to be inferred from the acts'of a belligerent, which is to supply the place of a public notification, or of a particular warning, must be such as, if given in 'Jie form of a public notification or of a particular warning, would have been legal and eficctual. For this purpose the notice of the blockade must not be more ox- tensive than the lilockade itself A belligerent cannot be allowed to proclaim that he has in>tituied a blockade of .several jjortsofthe enemy when in truth he has only blockaded one; such a course would introduce all the evils of what is termed a paper blockade, and would be attended with the gi'osscst injustice to the commerce of neutrals. xVccordingly a neutral is at liberty to disregard such a notice, and is not liable to the penalties attending ti breach of blockade, for afterwards attempting to enter the port which really is blockailcd. The t^iTEEx v. JIildurandt, The " Ali.ve" axd " Fanny." ' 77. In thi.s cause the jirinciple laid dowu iu the above ai)p(>al of " S'lidc/if Y. O/trr, The " Oslsee'\ that a chiimant, upon restitution of the ship is entitled to costs and damages from tlie captors, only in circumstances where the shij) was iji no lault, and ^vas not by any act of her oAvn, voluntarily or involuntarily, open to any fair sji^ouud of suspicion, was approved. J5AI.TAZ/I V.RviiKK. The " P\NA(iI,lo.\ HnOWBE " '' 7S. The general, but not uni\ersal rule, is that wliere a ship is condemned for br^'ach of blockade, the cargo follows the same fate. 7'.'. The pri'sumption is aii-aiust a vessel ca])tured while entering a blockaded port, and an imperative and over- A^'hcjniing necessity for so doing must be established by the owner to exempt him from condemiiatio)!. SO. The owners of the largu cannot save their cargo by pleading their own ignorance, as the illegal act of the master renders them liable aithotigh it was done without tlicir consent or knowledge, or even against their wishes. 1 Ailmi;:dty, ISJlj July 10, X Moiiic 491. 2 AiiminiUy, 1858 June '.'S, XII Munre 108. Ml 446 INTEEXATIOXAL LAW BKKACII OF BI.UCKADK. The JiKiiiT JIoN. T. Pkmberton Leigh, p. 186 : — But, the subse- ([uoiit oases iijj|ieai' to huvo carriwl the rule mudi further, and to ha\e established, that when the bloekade was known, or might have been known, to the owners of the eargo at the time when the ship- ment was made, and they might, therefore, by possibility be privy to an intention of violating the blockade, such privity shall be assumed as an irresistible inference of law, a"d it shall be competent to them to rebut it by evidence ; that in cases of blockade, for the purpose of affecting the cargo with the rights of the belligerent, th*^ master shall be treated as the agent for the cargo as well as for the ship We find, therefore, a series of authoi'ities establishing a general rule, which, lilvc all general rules, maj*- in its application to parti- cular cases be occasionally attended v\-ith hardship, but which, nevertheless, may be necessary to prevent fraud, and may on the whole, promote the progress of justice. It is a rule not applicable exclusively to neutrals, but which applies with equal force to all ])ersons attempting to violate a blockade, though they may be the subjects or the allies of the country which has established it. See Evidence: new evidence. Northcotex. Bomjlass. The ''Franciska." CIVIL STATUS. In re Adam ' 81. The civil status of a party resident iu the Mauritius must be detenniued by the laAVs of Euglaud, but the rights and liabilities incidental to such status must be determined by the law of the colony. FORKIOX KM.INTMENT. Eegina v. Cakmn. The "Salvador" " 82. There Avas an insurrection in the Island of Cuba and the insurgents had formed themselves into a body of i)eople acting together, undertaking and conducting hostilities. A ship was fitted out and armed, within Her Majesty's Dominions and without her permission, to be used by the insurgents. Held, by the Judicial Committee, that it was an infringement of the Foreign Enlistment Act. (59 Creo. 3, ch. 69) and the forfeiture of the ship was maintained. Dyke v. Elliott. The " Sauntlett " ' 83. An English steam-tiag was engaged by a French Avar- ship to tow a Prussian ship, captured as prize of war, from liritish waters to a port of the captors. The Judicial Com- mittee held that such engagement was despatching a ship, within the meaning of Sect. 8 of the Foreign Enlistment 1 Mauriliiis, 1837 July 4, I Moore 4G0. 2 V. A. Bahamas, 1S70 June 2H, XWU Li'.w Times N. S. 203. 3 Admiralty, 1872 F.^b. 9, Vlll Moore N. S. 428. ■-*'^~;/^ INTHENATIOXAL LAW 447 Act oi' 18V0, i'or the purpose of taking part in the naval service of a belligerent, and condemned the tug as a forfei- ture to the crown. FOREiGx i,Aw. See Evidence : law of foreign States. FOREIGN LAW IS t'OLEISIOar €ASE$i. The "Hal ley" ' 84. In an action against a British ship for damages suf- fered by collision which took place in a foreign port, the Judicial Committee held, that the claim being based on acts committed within the territory of a foreign State, the party claiming reparation before a British court was not entitled to the benefit of the foreign law against the admitted provi- sions of the statute laws of England, in respect of compulsory pilotage, by which no such liability, as provided by the Belgian law, existed, as it is contrary to principle and authority to hold that an English court will enforce a foreign law, and give a remedy in the shape of damages, in respect of an act which, according to its own print-iples, imposes no liability on the jperson from whom the damages are claimed. The Lord Justice Selwyn, p. 270 : — It is true that, in many eases the courts of England inquire into and act upon the laws ol' foreign countries, as in the case of a contract entered into in a foreign country, where, by exjjress reference, or by necessary im- plication, the foreign law is incorporated with the contract, and proof and consideration of the foreign law, therefore, become neces- sary to the construction of the contract itscu. Ami as in the case of a collisi(jn on an ordinary road in a forc'gn country, where the rule of the road in force at the place of collision may be a necessary in- gredient in the determination of the question by whose fault or ne- gligence the alleged tort was committed. Bat in these and similar cases the English court admits the proof of the foreign law as part of the circumstances attending the execution of the contract, or as one of the facts upon which the existence of the tort, or the right to damages, may depend, and it then applies and enforces its own law so far as it is applicable to the case thus established; but it is, in their Lordships' opinion, alike contrary to jirinciple and to autiiority lo hold, that an English Court ofJuslice will enforce a foreign muni- cipal law and will give a remedy in the shape nf damages in res]ject of an act which, according to its own princij)les, imposes no liability ■on the person from whom the damages are claimed. JUHISDIVTION or STATE.**. pAi'ATANNi v. The Russian Hteam Navigation andTuadinu Co. ' 85. The ordinary way of granting a cession of jurisdiction to the subjects of on^' State within the territory of another, 1 Admirulty, l.^iiK .June ", V Moore X. S. 2(i';. 2 Cousiilar Court, lt'63 July 25, II Mouro X. S. 101. JNTERXATIOXAL LAW I •I JIKISim'TIOX <»F STATES. is by treaty or engagement of similar validity, but it may also be acquired by cou.stant usage permitted and aoijaiesfed in bv the authorities of the State, l)y active assent, or even bv silent acquiescence Avhere there must be lull kuo-\vledg'c. '.stj. But, as a matter of right, no State can claim Jurisdic- tion of any kiiul Avithin the territorial limits of another iu- dc[)eiident State. DaMOHAR GiPllDHAM v. Deouam Kax.ji ' 87. A transfer of British territories from ordinary British jurisdiction "to the supervision, laws and regulations of a jxtlitical agency," aniounling to a cession of British territory to a native state in India, depriving the crown of its terri- torial rights over the transf rred district, or the persons resident therein of their rights as British subje('ts cannot be made without an Act of the Legislature. Direct Uxiteu States C.vbi^e Chmpasv V. Axiil.ll-A.MERICAX TeLEORAI'H ( 'il.Ml'.VXY '' 88. Uuder the general law of nations is to bi' found an universal agreement that harbours, estuaries and landlocked bays belong to the territory of the nation which possesses the shores rou.nd them, but no agreement as to what is the rule to determine what is a " bay" for this purpose. 89. It seems generally agreed that w'^here the coufioura- tion and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupi«'s the bay, the bay is part of its territory ; and with this idea most of the writers on the subject refer to defensibility from thi- shore as the test of occupation. As to English common law: see Fitzlnfberf. " Carone," -iW : Hale, Dtjiire Maris, p. 1, (.-. -4; Rtg. V. Cuiininghtun, Bell's Cr., c. 86. 90. The above principles were applied in the construction of statutes incorporating the above comi)anies ; and an injunc- tion Avas granted inbciialf oithe res[)oudents to prevent the appellants from infringing the company respondent's right to lay and work a c ble within Conception Bay, Avhich lies on the East of Newfoundland, between two promontories distant more than twenty miles. The cable which was laid about three miles from the shore was maintained. 1 lionibiiy, 1875 March 2S, L. H. 1 App-nl Cases 332. 2 Xewfounilliuid, 1877 Feb. II, L. It. 11 Appeal Uuses 394. IXTEKXATIOXAL LAW 449 jvnisnicTiox of coiihts of jitmtk^f.. The Secretary op State in Council ok Inuia V. Kamaciiee IJoYE Saiiaiia ' 91. The trausactious ol' indepeudeut sovereign States between each other are governed by special laws, and are not subject to the ordinary principles administered bj- ordinary courts of justice, which have neither the means of decreeing' what is right in such a peculiar matter, nor the power of enforcing any decision which thej^ may make. The "Malvina" ' 02. The court of Admiralty has jurisdiction in case of damage by collision between a barge and a sea-going foreign vessel in a river within the body of a count3^ La Blaciie v. IUnoel. The " Mina " ■' 93. In the court of Admiralty, it is the nationality of the vessel, and not t'le nationality of the individual seaman suing for his wages, that regulates the course of procedure and the jurisdic;tion of the court. BuMvEI.EY v. SciIRETZ ' 94. A raihvay company existing in a foreign country does not fall under the enactments of the English Joint Stock Companies Acts of 1856-57, so as to enable Her Ma- jesty's Consular court in Egypt, to issue a sequestration against such of the members of the company as were re- sident Avithin the jurisdiction of that court, for not com- plying with an order of that court to register the company as one of limited liability under the English act. .MkssINA v. I'HKTRncociliNO ' 05. A foreign judgment of a competent courl is conclusive, and uot >i[)eu to examination by anxiher court, unless the judgment impeached carries on the face of it . manifest error; as if It is sliown u» have l)(!en obtained by fraud or wanting in the c()nditiv>n of natural justitM?. Such judgmcni cannot be ajjplied to persons other than those who were parties to the litigation decided l)y it except in cases where the judg- ment is in rem. 1 Miuirn;, is.-.ll July », XIII Mooio 2'2, 2 Ailmiialty, ISO! April i:i, VIII L;i\v IHmes X. S 403. 3 A.lmlrnlly, 186S Dec. 17, V Mooiv N'. S. 'il. 4 C. C, Constantinople 1871 July 17, VIII Mooic N. S. 175. 6 Miilta, 1872 Feb. .3, VIII Moore X. S. 375. 39 450 TXT K l?XATI( )\ A L I. AAV ■■ 1: i) '■-I , l,\\\ or Tillv IMIMIl'Il.f: 'i.\'u iioTT<».niiY (oxtkact. DUIIANTV V. llAltT. TllK '' IIVMIUIIKI " ' 101. Tlio validity oi' a JJottoinry liond, tiiken in a, loivigii port ui>ou a IVivigii whip, iVciii'ht and rarii'o, tln^ owners of the cargo l)eing English, and the sliij) and ciirgo l)i'ing pro- ceeded against in Engliind, is to be governed by the general maritime laws, and not Ity the lex loci cuiUriK tm, or the law oi' the country the vessel l)el(>ngs to. .(.)TTo.MUY AND Hesponuentlv : n'ghf. of the master to effect loan on. i.\w ver, moveable property still remains, by article (!, goverut.'d by the law of the owner's international domicile. For the rem(ir/,'s of their Lordskips, see DoyucihE : vmrridge in the Province of Queliec, same cause. Alle.v v. Kk.mblk ^ 10;3. If a bill of exchange is drawn in one country and payable in another, and the bill is dishonoured, the drawer is liable, according to tlie lex loci contractus, and not accord- ing to the law of the country Avhere the bill was made payable. 104. liut where a bill is drawn generally, the liabilities of the drawer, acceptor and indorsers, are governed by the laws of the countries in which the drawing, acceptance -lud in- dorsement respectively take place. TiiK IiKiiiT I[').v. T. Pe.mbekton LEKiH, ]). .'{21: — Tlic ilrawcr, hy his cniitract, uinlcrtakos iliat the drawee shall aeccpi and siiiill atU'r- warils ])ay the bill, iiccordinii' to its tenor, at the place and (loniicile of the drawee if it l)e drawn and accepted generally. At the place appointed for jiayment, if it bo drawn and accepted payable at ii, ditl'erent ]ilace from the place of domicile of the drawee;. If this contract ot' ihe drawi'r be liroken by the drawee, eilhef iiy non- acceplanee, or non-payment, the drawer is lialile for payment of the bill, not where the liill was lo bc^ [)aid liy the drawee, Init whei'c he, the drawer, maile his contract, with his interest, damages and cosLs, as tJic law of the country where be contracted niay allow, in every case of a bill drawn in one country upon a drawee in another, the intention and the agreement are. that tli<' bill shall be paid in the 1 Ailminilly, ISi;:! Dec. :>. II Mooiv \. fc!. 281). 2 S. C. Qiu'Ih'c, 188'.t .July 27, L. R. .\IV Appeal Oases 631 3 BritUli Guiana, 18-ls April 13, V'l .Moore ;!U. -I'll' IXTKHNATIONAI, LAW LKX l. .Ir.sTH'E TriiNEK, ]). 2!MI : — L'artios to a conti'act, aro eitiiiT the sulijocts of the I'ower there nding, or as temporary residents owe it a leniporaiy alle loss of their income arising from the funds of such a corjioration. 1 .Mauritius. 1.SG5 .Juik; 2;!, Ill .Moore N. S. 272. 2 Kngland, 1834 Apiil 10, II Kimpi) 2:)5. ;! I'^iigland, 1825 N'ov. 2"i, II Kiin]))) 23. Case of tlio En^lUh Romaii-Cntholic Colleges in France . INTKIJXATIoNAL LAW 4153 KATIOXAMTY. LoNd V. CVl.MMISSKlNEIIS Foil CI, AIMS (tN KllANCK ' 100. A t'orpoviiliou oririshiiicu, oxistiiii"' in u I'on'iu'ii coun- try, iiiid laiuli'v th(! control of a Ibrciiiii fiovcnuiicut, niusi bo coiisitUircd an a I'oreiiju corporation, and is not thcrolbro tni- titli'd lo claim conipcnsaiion for the loss of its propcrtv nnder ii iroaty, giving the; right ol' doing so to Ihitisli subjects. Sill .loUN Lkacii, MASTKii Ol' TiiK iioM.s'. i/t'.'roperly of individuals, they had no rig-ht wiuitever to trans- mit it. Count Wam/s CASK ' 110. The .son of a British father ^yh.o had entered into the service of France, and taken the oath of knight of the Order of St. Louis, AVas hehl to be entith'd to the character of a British subject, although he himself was l)orn in France of a French mother, and had served in the French army. .IkI'IISON v. i{|KllA ■■' 111. A person residing in an Island ceded by (Ireat Britain, Avho, immediately alter the cession, comes over to England, and, linding that the climate dot's not agree Avith his health, returns to the Island, in Avhich he had left his family aiul resides Avith them there for upwards of six years, and then emigrates Avith them to another country under the govern- ment of Great Britain, retains the charact(!r of a British subjiH^t ; and his children, l)orn after the capitulation of the Island, and before its final cession by treaty, are not aliens. Hon. Teiomas Hhskixk, p. 14!l: — As to the objection to the status of the widow as an alien, their Lordships ai'c of opinion that if the a]»pellants had estahlished, at the trial, the tact u])()n which they now rely, uidess they couitl have retained liis domicile in Minoi'ca 1 Kiigliuul, 18.T2 l'\'l). '27, II KiiappSl. 2 ICiiglaud, 1834 June 20, III Knapp 1.3. 3 Gibraltar, 1835 July 3, III K'liapp 130. 1.^ ^^^^a. IMAGE EVALUATION TEST TARGET (MT-3) % v: ^ 'V ^ /A 1.0 t^^ ^^ 1^ 1^ ill 2.2 == .« u^ Ilia I.I L'- "- 1.6 1.25 11.4 — 6" Photographic Sdences Corporation 23 WiST MAIN STREET WEBSTER, N.Y. 14S80 (716) •72-4503 .'«\^^ 454 INTERNATIONAL LAW it t NATIONALITY. witli llie intention of transfornn;; liis allogiiinco under the eeMsiou of tlio island from tlie Crown of (Ireat Britain totlieC'nnvn of Spain, that the mere fact of his returniuii to the island, and continuing to reside till 17!*<>, would not have deprived him of his character and ])rivileges as a Jirilish siihjeet. Count de Wam/s case ' 112. A uative-boru Irishmau, a British subject, i larried a French "womau domiciled in France. They r(»suled iu France till the breaking ont of the French revolniion, when they emigrated to Germany. The -wile died in the lifetime of her husband, without ever having come within the ter- ritory of G-reat JJritain. Held, that she did not by her marriage become a British subject, for, while she remained abroad, she was not within the allegicrce of the crown of England. C'RK.Mmi V. PowELi,. The " Ger.\simo " ' 113. The national character of a trader is to be decided* for the purposes of the trade, by tht^ national character of the place in which it is carried on. If a Avar breaks out, a foreign merchant carrying on trade in a belligerent country, lias a reasonable time allowed him for transferring himself and his proi)erty to another country. If he does not avail himsel*' of the opportunity, he is to be treated, for the pur- poses of trade, as a subject of the power under whose dominion he carries it on, and as an enemy of those with whom that i)ower is at war. 114. A temi)orary occupancy of a territory by an enemy's force, does not of itself necessarily convert the territory so occupied into hostile territory, or its inhabitants into enemies. HoRENSEN V. The (^ueen. The " Haltic.v ' ^ 11'). A neutral residing iu an enemy's country, as consul of a neutral state, and who also traded there as a nien'hant, is to be regarded as an enemy. !ent * lie. The appellant, a merchant in Scotland, had two mort- gages on plantations belonging to the respondent and 1 Oommiosionors for liquidating tlie claims of British subjects on France, 1848 Feb. 16, VI Moore 210. 2 Admiralty, 1S57 Miircii 4, XI Moore 88. 3 Admiralty, 1857 Dec. 11, XI Moore 141. 4 Dritish Guiiinn, 1838 Feb. 1.'), II Moore 232 ', '. A •^h^ IXi '^UNATIOXAL LAW 4r)5 PAYMKXT OF MnRniVWE OrR I» AXOTIIKR <'»rwTRr. Bituated in Domt»rara. An agr(M»meiil was made in Scotland bet-\ve(»n the parties ibr the disfharge of those mortgaifes by hills ol' exehange. The Judii-ial Committee held that this contraet was to V)e interpreted at-eording to the law of Scotland. TiiK J{[(inT neing ailvanced on mortgage in a foreign country does not render it recpiisite thai the contract should be "governed by the law of that country in which the mortgaged land is situated. PBENCRIPTIOX. IIek Hiohness Kijckmahoye v. Lrr,i,ooimoT MoxTrciiuNn ' 117. The law of prescription or limitation is a law relating to procedure and is governed by the lex fort. Siu.Ioii.\ .Iervis. p. ;{5 : — The arguments in su]i|)ort of the plea are founded u]K>n the legal character of a law of limitation or pres- cription, and it is insisted, that such legal character of the law oi' jtrescription has iieen so much consideref any blockade at all. Again, it is not easy to answer the objections which a neutral might make, that the condition of things which alone authorizes 4iny interference with his commerce does not exist, namely, the ne- cessity of interdicting all communication by way of commerce with the place in question; that a belligerent, if he inflicts upon neutrals the inconvenience of exclusion from commerce with such place, must ■submit to the same inconvenience hiinseil ; and tliai it Ik- is in lie jit liberty to select ])articular points in which it suits his purpose that the blockaile should be violated with impunity, each neutral, in order to be j)laced on equal terms with the belligerent, should be at liberty to make such selection for himself. 4r)8 INTKRXATIONAL LAW I- II ■; ; i PMIZKN or WAR. (.'KEMIDI V. PdWELL. THK " GeUASIMO " ' 120. It is thn duty of the captor, as soon as possible, to solid a jmze to some couvenient ])ort iu Her Majesty'B dominions for adjudifation, mid to i?roi'ure the examination in j)reparatory of the principal officers of the captured vessel, and to dei>osit in the admiralty court upon oath, all papers found on board the prize, in order that speedy justice may be done, and thai the property, if illegally seized, may be restored, Avith as little delay as possible, to the owners. Batten v. The (^ueex. The ' Makia" ' 121. The Judicial Committee held that if any doubt exists as to the character of a ship claimed to be the property ol' a neutral being still enemy's property, the rule is, that the claimant shall be put to strict proof of o-wnership and any circumstance of fraud or contrivance, or attempt at imposi- tion oil the court, in making out his title, is fatal to the claimant, and condemnation of the ship as enemy's property necessarily follows. SnllENSEN V. ThE QiEEN, ThE " AuiEt, " ' 122. The sale of a ship absolutely and 6f>«« fide l)y an enemy to a neutral, imminente bello, or even flagrante be/lo, is not illegal. 12:{. Lirns, Avhether in favour of a ueutral or an •^nemv's ship, or in favour of an enemy on a neutral ship, are ^aally to be ilisregarded in a Court of I'rize. The EuaiT I1. 120 : — It is aro/ienl on tho court to look closely iiit<» tin- history of the transactions, it Iwing oKviously tho intcniion of all parties to i>lace the shi]>. hy such sale, out of the reach of capture l>y tlie liellijrerent. It there luul heen facts leading; to a well founded condi'sion that a secriM understanding existed lielween the neller and the claimant, that the nhip shouhl he rostfired to the seller in the «>vent of no war hreaUinjr out, or in the event of a speedy ju-ace, or that the shi]i should he employed hy the clainuiut under the direction and for the henetit of the seller, the court woiilil he hound to hold the sale to lie collusive and void, ami to condemn the ship as Kussian j)ro]K'rty. ]iut no such tacts are even surmised in tlu' case. SoREN.SE\ v. TlIK (^lEKN. TlIK '' M.VI.TIC.V " 124. The question raised in this cause is the same as that in the above cau.se of the "\riel," except that the sale of the " Haltica" had taken phi e "\vhiU> she Avas en; transitu. tihe nailed iVom liibuii, an enemy's jwrt, to C'oi»ei)hi?i>en. a neutral port, where she arrived and Avas taken po.ssession oi" by the purchaser. The Judieial Committee held that the sale, though iu Iran- Ki'tu, Avas A'alid, as the transitu^ had ceased AA'hen the A'cssel had come into the possession of the purchaser, Avhioh took place before the seizure. 12"). A neutral Avhile a AA'ar is imminent, or even after it has commenced, is at lib»*rty to purchase either goods or ships (not being ships of AA'ar) from either belligerent, and the purchase is valid Avhether the subject of it be lying in a neutral or an enemy's port. The EtoiiT llox. T. Pk.mherto\ Lekmi. p. 145: — The general rule is open t lying in a neutral port or in an enemy's port. During a time of peace, without prospect of war, any transfer which is sutHcient to transter the property hetwecn the\endor and vendee, is gootl also against a ca)»lor, if Avar afterwards uiex- ])ectedly hreak out. Hut, in case of war, either actiud or imminent, this ruie is suhjcct to (|ualitication. and it is settled that in such case a mere transfer ol documents which woidd be sufficient to hind the jtarties, is not sutHcient to change the property as against cajjtors. as long as the ship or go(Mls remain /» transitu. Willi resi>ect to tliese principles, their Lordshi|ts are n(»t aware that it is possible to rai.sc any controversy; they arc the familial" rules of the Knglish I'ri/.e court, cstahli^lictl l>v all the aiillK rilic- aiid are collected and stated, principally from the decisions ot Lord Sfoiri'll, liy Mr. Justice tStury. in his " Xotes on the princijiles and 1 Adiniinltv. \S'u Doc. 11. XI Moore 141. f T T i ? i III Mil. % ?i ',: 1:1 I' I 460 INTERNATIONAL LAW PBIZEM OF WAR. nracticf of Prize courtH," a work which has l)oon soloctod by tho British fioviM-nmcnt, for tho use of its naval offlcors, as th« host «'0(k'of instruct ion in the Prize laws. The passages referred to, are to 1)0 found in ]»ages GH and (14 of that work. Tiio onl}' (juestion of law which can be raised in this case, is not whetlier a transfer of a ship or goods m transitu, is inetl'ectual to change the property, as long as the state of transitus lasts; but how long that state continues, and when, and by what means, it is terminated. In order to determine the question, it is necessary to consider upon what principle the rule rests, and why i? is that a sale which would be perfectly good if made while the ]»roperty was in a neutral port, or while it was in an enemy's port, is inetl'ectual if made while the shij) is on her voyage from one port to tho other. There scorn to be but two possible grounds of distinction. The one is, that while tho ship is on the seas, the title of the vendee cannot be completed by actual delivery of tlie vessel or go(Mls ; the other is, that the ship and goods having incurred the risk of capture by putting to sea, ^liall not be permitted to defeat the inchoate right of capture by tho belligerent powers, imtil the voyage is at an end. The former, however, appears to bo tho true ground on which the rule rests. Such transactions during war, or in contemplation of war, are so likely to be merely colourable, to be sot up for the purpose of misleading, or defrauding captors, the difficulty of detect- iig such frauds, if mere |»ai)er transfers are licld sufficient, is so great, that tho courts have laid down as a general rule, that such transfers, witho'U actual deliver^*, shall bo insufticiont, that in order to defeat the captors, the possession, as well as the property, must 1)0 cliangod before the seizure. It is true that, in one sense, tho ship and goods may be said to be in tr<(nsitu till they have reached their original i)ort of destination ; but their Lordships have found no case where tho transfer was held to be inoperative after tho actual de- livery of tho propert}' to the owni^r. That the transitus ceases, when tho ])roperty has come into the actual possession of tho transferee, is a doctrine perfectly consistent with the decisions in tho *' Dancke- baar Africaan" (1 Hob. 107), and in the " Netjotie en Zeevaart," on tho authority of which the former case was decided. See Evidence : new eiu'dence. The Qiteenv. Hildebrant. The "Alire' and The •' Fanny.'' PROVEnVRK KKOVI.ATED BY I.EX F4»HI Loi'EZ vs. BlMlSI-EM ET AT, ' 126. Procedure is regulated by the laAVS of the forum, and all persons residiug or dealing within the British empire whether subjects of Her Majesty or aliens are bound to sub- mit to the law made on this subject by Parliament. Lord C.\MPHELL, p. 308 :— The British Parliament certainly has no general i)ower to legislate for foreigners out of tho dominions and beyond tho jurisdiction of the British Crown, but it cannot be doubted 1 Sieirii Leone, 184.3 Nov. 29, IV Moore 300. INTIjIHXATIOXAL LAW 461 tho host lire not to low in FRm^EDVBK BEOITLATEn BY I.EX t'ORI. fur 11 momonl that a Ih'itiHh Mtatutu may tix u timo within whit-h ap- i>lic>ation inuMt he mado for redress to the tribunals of tho einj Ire. This is matter of procedure, and becomes the law of tho fonnn. On matters of procedure, all mankind, whotlier aliens or liege suhjocts, nlaintitt's or defendantH, a)>pellants or respondents, are hound by the law of the/orw>n. If a law were made upon this sui)ject, working oppression and injustice to the subjects of a fcn-ign State, that State might make representations and remonstrances against t!)is law to our government; but while it remains in force, judges have no , choice but to give it effect. riTXIHHMENT OF <1BI.1IEN. The Attokney-Gkneral kor the colony of IIonu Ko.vo V. KWOK-.\-SlNU ' 127. The distiiit'tiou of crimes and the punishmeut of off'onces fall under the laws of the coiautry where the aet is committed. Lord Justice JftLMsii, p. 1!I8 ■ — Moreover, although any nation may makes laws to punish its own subjects for oti'enees com mitted outside its own territory; still, in their Lordships' opinion, tho general princijile of criminal jurisprudence is tliat the quality of the act done depends on tlie law of the place where it is done. Now, the jilace as to what constitutes murder differs in different places. Suppose that a subject oi' China kills an Knglishman within Knglish territory, or on board an Knglish ship, under circumstances wliich, accoriling to Knglish law, might amount to manslaughter only, couUI it possibly be right for the Knglish government to surrender such a person to the (.^'hinese government to be tried according to Chinese law, to which the distinction between murder and man- slaughter may bo wholly unknown. BULKS OOVKBNINO HIIIPN OX NEA. Stevens v. (tourf-ey. The " Cleadon " ' 128. A foreign vessel meeting" another vessel is governed by the rule of the sea and not by the Admiralty regulations, l)ut a British ship in tow of a steam-tug, meeting a foreign ship at night, is governed by the Admiralty regula- tions. Williams v. Guth. The "Chancellor"' 129. The Merchant Shipping Act of 1854 does notapply to a case of collision between a Uritish and a foreign vessel in the Atlantic Ocean ; the rule of the sea being then the governing law. 130. By this rule when two vchhcIs arc approachiiiix each 1 Hong Kong, 18V3 June 19, L. R. V P. C. 198. 2 Admiralty, 1860 Dec. 12, XIV Moore 92. 3 Admiralty, 1861 Feb. 18, XIV Moore 202. w jf SI ;. K ■ 462 IXTHILXATloNAL LAW KVI.EN »0VI:R.\I.\U NIIIPN ON NKA. (»lh<*r, nearly on the Hume course, and both have the wind live, eii 'h vessel is )>oand to port her helm and run to sturl)oard ol' the other ; hut when one vessel is elose-hauled. the runniim; ship (the vessel that hasthi' wind Tree) is bound to make way I'or the elose-hauled ship. TlIK II.VMHUIKIH A.MKIIK'A.N StKAM NaVKIATMN ('((MI'ANV V. ThK NiiKTii OK .Scotland Hankino CoMi'ANy. The " l']cMl•^K " • AM) The *' Saxonia " ' 131. A eollision took plaee between o British vessel and a foreign steamer in the Solent, between the Isle ol" Wijijht and the Hampshire coast. Held, that the case Avas to be tried by the ordinary maritime law, as the Menihant Shipping Act, 17th and 18tn Vict. ch. 104, sect. 21t(j, 2i»7, 2!t8, had no application to the Solent, so as to allect a Ibreignship navigating thi're. ^Vhen British and foreign ships meet on the high seas, that statute is not binding on either vessel. 132. The general maritime rules affecting vessels of all countriea are that a vessel sailing free, or a steamshij), is bound to give way to a ves.sel close-hauled ; and, that the vessel close-hauled is bound to show a proper and sufficient light in time. The " Elizaketh " ' 183. The 2!»6th section of the Merchant Shipping Act, 1854, prescribing the rule as to ships meeting each other, does not apply to foreign ships meeting a British ship in the high seas; the Parliament of Great Britain having no juris- diction ovt'r foreign vessels upon the high seas, and cannot, even if .so disposed, without the consent of other nations, establish any laAV of navigation binding on them. In such a case the old rule of the sea prevails, by which a vessel that is close-hauled on the port tack must keep her course, and the vessel that has the wind free must get out of her way. What measures the vessel going free must take must dei>end on circumstances. See Collision : parties tnfautt. NHIP ADOPTING BRITISH COLORS. DioNissis V. The Queen. The " Lauea " ' 134. The registry, flag and pass of a ship carry with them the presumption that they are true and correct, and the owner of a ship who has adopted British colors and who 1 Ailniiralty, WA Doc. 10, XV Moore 26J. 2 Ailmiially, 1800 July 10, HI Law Tunes 15!>. 3 v. A. Antigua, lf)05 March 15, III .Moore .\. .S. 181. INTKWXATIONAL LAW 468 11 NIIIP AD(>I>TIWW HItlTINH COLORS. has boen seized lor ilU'ji^ul luts, cannot ♦•scaiu; the; jnvisclic- tions of the t'ourts, in Enifland, by pTovinj? that he is not an Eng^liKh subject and that his vessel is a foreign ship. hlavkh tradiw<1. Del Cami'o et ai. v. The (^iken ' 18"). A foreign vessel may be seized und»!r the Slave Abolition Act within a British port. 18*j. The trade of slaves is the joint act of the master of the ship and the owner, and they are Jointly and severally responsible. ▼ALVE OF 4'VKRKKCV. PiLKINUTON V. (J.IM.MISSIUNEI18 FOtt CLAt.MS ON Fka.NCE ' 137. A State having issued a det;ree confiscating all the diibts due to the subjects of its enemy's country ; a debtor paid to the confiscating State, the amount of his debt, in the currency of the time, which, however, was very much depreciated since the date of his declaration of his di-bt under the decree of confiscation. '' Held, that the con- fiscating State, having entered into a treaty to make com- pensation for all undue confiscations and sequestrations, was answerable for the debt in the currency at the time of the debtor's declaration, this not being a case between a debtor and creditor, but of reparation by a wrong-doer. Sir WiM.iA.M friiANT, (1. IS, rclorriiig In two ciison stated lu ■/, and that judgment is afterwards reversed, by which the pa.v is put to restore hack all he has received, the juilgment-creuitor cannot liberate himself by merely restoring 100 1. in the tlebased currency of the time, hut he must give the veiy same currency that he hail recoivotl. That proceeds upon the principle, that if the act is to be undone, it must be completely umlone, and the party is to be restored to the situation in which he was at the time the act to he undone took place. INTERVENTION /See Practice. X. i if i II- I 1 Gibraltar, 1837 July .5, II Moore 1:>. 2 En?lanBTON ' 1. Ill Madras the law provides that the representatives of a, judge wlio lias died iu India, are entitled to a sum oqu;! to six months' salary. T.u; Judicial Committee held, that although the common law will not allow the emoluments of an office to he alienated or assigned, as being against public policy, this sum of money not being emoluments of office, but being rather part of the judge's estate, could have been validly transferred by him for valuable consideration during his life time. OROVNDN rOU REMOVINO. TlIE REPRE8ENTATIVEH OK THE ISLAND OP GRENADA V. SANDERSON ' 2. A petition was presented by the Assembly of the Island of Q-renada praying for the dismissal of the respondent, the chief justice of the Island. The grounds of the petition were intemperance and arbitrary conduct, such as fining two ma- gistrates for taking depositions of witnesses in +he third in- stead of in the first person. The petition was not entertained because of the length of time which had elapsed since the date of the acts com- plained of. Montagu v. The Lieutenant-Governor op Van Dieman's Land ' 3. After a full investigation by the G-overnor and Council of the Island of Van Dieman's Land into the conduct of the appellant, one of the judges of the colony, it was established by evidence that the appellant availing himself of his judicial function obstructed his creditors from recovering debts due by him ; he was at the same time found to be involved to a large extent in hazardous transactions and pecuniary embarrassment. The Judicial Committee held that these reasons were suf- ficient to justify the Governor and Council in removing the appellant from office. 1 Mftilras, 1846 Feb. 9, V Moore 210. 2 Grenada, 1847 Feb. 11, VI Moore 38. 3 Van Dieman's Land, 1849 July 3, VI Moore 489. 30 466 JUDGES PRECEDKXt-R OF See PREROdATlVE OF THE CROWN : iisrlein verbis. RF.ANONN OF jrDGES IK RENDERING JI7DOWENT. SCB PRACTICE : iisdem verbis. REHABIUTATIOSr OF Cloete v. The Queen ' 4. The Recorder of the district of Port Natal having been suspended by the Lieutenant-Groveruor for contempt of his authority and misconduct, the Judicial Committee without giving their reasons reversed his order and advised Her Ma- jesty to pay the Recorder his salary as if no order of sus- pension had been made. RECUSATION OF Sce PRACTICE : iisdem verbis. responsibility of Calder v. Halket ' 5. The privilege of a judge of not being liable for any of his judicial acts exists only to the extent of his jurisdiction, and therefore, where there is no jurisdiction, there is no pri- vilege. However, the party claiming against a judge must prove that this latter acted in bad faith and knowing that he had no jurisdiction. Mr. Baron Parke, p. 7 : — ; for English judges, when they act wholly without juriwliction, whether they may suppose they had it or not, have no privilege ; and the justices of the peace, whether acting as such, or in their judicial character, incases of summary conviction, have no other than that of having notice of action, a limitation of time for bringing it, a restriction as to venue, the j)Ower of tendering amends, and of pleading the general issue, with certain advantages as to costs. P. 78: — It is clear, therefore, that a judge is not hable in trespass for want of jurisdiction, unless he knew, or ought to have known, of the defect ; and it lies on the plaintiff, in every such case, to prove that fact. Gahan v. Lafitte ' 6. The action was in damages for false imjmsonment, to the amount of ^£5, 000. The respondent had been condemned, for contempt of court and wicked libel, to be imprisonetl until such contempt should be purged. On his release from gaol he took his action alleging that the court which con- demned him was not constituted as a court of justice, as the judges sitting in it were illegally appointed. He succeeded in obtaining in the court below a judgment for i;3,000. 1 Port Natal, 1864 Feb. 20, VIII Moore 484. 2 Bengal, 1840 July 8, III Moore 75. 3 St. Lucia, 1842 July 6, III Moore 382. '■a JUDviES 407 RKHPO.>'NIBIMTV OF The jmlgmeut was coufirmfd, but the amoiiut was redaced to .£1,500. Bahtox v. Field. The ''Winwick;'' ' 7. In order to render a judge liable to peual couse- queuces for directing a decree of sale of a ship, after he had been served with an inhibition issiied under the authority of the Judicial Committee, it is not sufficient to show that he has committed an error of judgment ; it must be proved that, in addition to there being error, it was wilful error proceeding from corrupt or improper motives. JUDGMENT CONSTRrCTIOS OF Hawksford et al v. Gikkord ^ 8. The practice of the court below, in the colonj*, cannot prevail against the construction of a judgment given by their Lordships who consider it to be the natural one. effect of Balfour v. Watt ^ 9. An order of the Chancery court in Jamaica to the effect that a certain legacy be paid out of the estate of a testator, having being duly registered, has the force of a judgment at law and constitutes the legatee a judgment creditor. in jersey iseand, Le Breton v. Knnis * 10. In Jersey, a majority of the judges constituting the court must concur in the judgment, and if they are equally divided, the bailiff has the casting vote. 11. In this cause, which was an action in damages for defamation, the court consisted of the bailiff and six jurats. Three of the latter were of opinion to dismiss the action ; two were of opinion to give judgment for plaintiff"; and one was of opinion " that the court could not pass a judicial sentence against the defendant, and that, therefore, the parties ought to be sent out of court, each bearing his own costs." The bailiff gave no vote ; and the judgment was recorded as dismissing the action with costs. The Judicial Committee, proceeding to render the judgment that ought to have been rendered by th'^ court below, reversed the judgment and awarded .£50.00 as damages in behalf of ap- pellant, plaintiff in the court below, and costs. 1 Gibraltar, 1843 Nov. 28, IV Moore 273. 2 Jersey, 1887 Dec. 18, LVI Law Times N. S. 32. 3 Jamaica, 1833 Feb. 2, VIII Moore 190. 4 Jersey, 18J4 Feb. 6, IV Moore 323. iiiir 1 ■ 1- ii 468 JUDICIAL COMMITTEK JUDICIAL COMMITTEE IVKIHDICTIOX OF /« re Gould et al ' 12. A petition was presented to the Judicial Committee to obtain the redress of torts suffered by petitioners in conse- , errors have been introduced, these courts possess, by common law, the same power which the Courts of Record and Statute have of rectifying the mistakes which have crept in. See Practice : amendment of judgment. JURISDICTION Bernard v. IIy.ve. The "Sarace.m"' 24. In the decision of cases, properly within the jurisdic- tion of the court of Admiralty, equitable considerations 1 Jersey, 1867 Feb. 17, XI Moore 64. 2 The 16th December 1859, the Queen in Council confirmed on Act of the State of Jersey to open the Bar to duly q^iialified Britisii subjects. Compensation was given to the si.K ndvocatrs who heretolorc had alone the right to practice before the Royal Court, XI H Moore 263. 3 New South AVales, 1858 June It, .XT Moore 288. 4 Bengal, 1836 No^. 29, I Moore 126. 5 Admiralty, 1847 Keb. 10, VI Moore ,56. ADNIR4LTY COVRT. JURISDICTION ^l ADMIBALTY COVRT ought to have their weight ; but it does uot theuce I'ollow that the court of Admiralty has jurisdiction to do all that courts of Equity may do. In actions instituted by persons suing, either for themselves, or on behalf of themselves and others, for the administration of assets, or the distribution of a common fund, in which several persons are interested, or upon which they have claims, the Admiralty court has no jurisdiction. 25. In this cause, different creditors, the owners of the ship and part of the cargo, and the owners of the remaining portion of the cargo claimed the distribution of the proceeds of the sale of the ship, and it was held that the Admiralty court had no jurisdiction to decree a rateable distribution. ADMIRALTY COVRT UT BOMBAY. LoconNAM V. Haji Jdosub BiiULLADiNA. The " IIydroos " ' 26. By the Bombay Charter, the admiralty jurisdiction of the Supreme court is the same as the Admiralty court in England ; and the rules of practice of this latter court are also in force in Bombay. HOW DETERMINED. Emery v. BiNNS ' 2*7. In actions of debt or contract, it is the amount re- covered by the verdict, and sanctioned by the judgment of the court, that decides the question of jurisdiction as well as the question of costs. I9r PERSONAL ACTIONS. Li:cn.MEEC»L'Nn v. Mlll ' 28. In the case of a partnership having its place of business in a particular district, in which the books are kept and the general business is transacted, it was hold that, at the close of the partnership, the cause of action of one of the partners for the balance of account against the other partner originated in the said district, notwithstanding that the domicile of the partners was in another district. jvry trial. Connecticut Mutual Life Insurance Company of Hartford v. Moore * 29. The court of Queen's Bench for Ontario has no juris- diction to order a verdict given in favour of plaintiff to be 1 Bombay, 1851 Feb. 18, VIl Moore 373. 2 Jamaica, 1850 Dec. 10, VII Moore 109. 3 Sudder Demannee, 1861 Dec. 3, III Law Times N. S. 603. 4 S. C. Ontario, 1881 July 7, L. R. VI Appeal Caaea 644. >iW I 472 JURISDICTION JVRT TRIAL set aside, and the same to be entered for the deleudaut iu direct opposition to the finding of the jury upon a material issue. 80. The Supreme court of Canada has the power to order a new trial, whenever the court whose decision is appealed against ought to have granted one. of covbts of justice. The Attornky Gener.\l op the Isle op Man v, Cowlev ' 31. Where a court lawfully possesses a jurisdiction or useful powers for the administration of justice, mere non- user does not take tht-m away. See International Law : iisdem verbis. The St. Andrew and Quebec Eailway Co. v. Brookkield ' 32. Where upon the determination of a contract, it is ad- mitted or established that one of the parties has in his hands a balance of the price of the contract, this is sufficient to give jurisdiction, to a court of Equity and when once this ground is obtained, that court has power to direct an account and to deal with the suit. ovEK FKivATE ASSOCIATIONS. ScB ASSOCIATIONS I Usdem vetbis. OF VICe«ADMIKALT¥ COVHT8. Phillips v. The Uiohland Railway Co. The " Ferret" ' 33. Under the Merchant Shipping Act, sect. 189, it is lawful for seamen to join in an action before the Vice- Admi- ralty courts, to recover their wages ; and they may also join to obtain compensation for wrongful dismissal. special statutory tribunals. Mayor and Councillors op the Borough of Pietermarishurq v. Natal Land and Colonization Company * 84. When a special tribunal of arbitration has been created by a statute to adjudicate on liquidation in equity with re- gard to expropriations and municipal matters, the jurisdit- tion of the ordinary courts of justice is taken away, and recourse must be had to this special court. See Cor- poration (Municipal) : right to dose street. 1 [sic of Man, 1859 June MO, XII Moore 27. 2 New Brunswick, 1860 Nov. 28, XIIl Moore 510. 3 V.-A., 1883 March 7, XLVIII Law Times N. S. 915. 4 Natal, 1888 March 10, L. R. XIH Appeal Cases. I! LETTERS PATENT Nullity of 539 LIBEL Privilege 542 LICENSE See Crown lands, Leoislatuiie. LIEN See Affreightment, Bottomry and Respondentia, Collision, Mer- chant Shipping, Principal and Agent, Privilege. LIEUTENANT GOVERNOR See Governor. LIFE RENTS See Annuity : confusion by marriage LIMITATION See Prescription. LIQUORS Legislation ON. i$e« Leoiblatube : legislative powers : temperance, license. LIS PENDENS See Practice : eodem verbo. LAW OF LOWER CANADA LAW ASrn K4li:iTY. MUIR V. }ilulB. ' 1. The law of the Provim-e of Quebec does not recognize the distinction between law and equity as it is admitted in England. Sib James Colville, p. 84: — This law doon not recognize the distinction between law and equity which obtains here. It haw now been reduced to a code And their Lordships cannot nee that, by any other article of this code, or otherwise, the courts in Canada have power upon some sup- posed ground of equity to engraft an exception upon the exception established by the second article (Civil Code), See CoDE.s OF LAW : construction of Canadian LAWYER See Attorney. LAW SUITS See Champerty and Maintenance. LEGACY CAPACITY OF THE LCOATEt.. Kino v. TuNsxALr. ' 2. By the conjoint operation of the Imperial Act 14 Greo. Ill, c. 83, and of the Canadian Act 41 G-eo. Ill, c. 4, the general incapacity to receive on the part of donees or legatees, such as adulterine bastards, was removed. 3. The said Canadian Act was only a declaratory Act as applied to the Imperial Act. 4. Thus, an adulterine bastard to whom a ^ift was made by substitution before the passing of the said Act will be, as substitute, entitled to receive the substitution opened in his favour after the passing of the Act. The Loru Justice James, p. 1>1 ; — Their Lordships have listened with great attention and interest — I think I may add with great instruction — to the veiy able arguments which have been addressed to them by both the learned counsel in support of the appellant's case. Their Lordships will assume, for the purpose of disi)osing of this appeal, that the law was exactly as stated by the learned coun- sel — that is to saj', that according tu the law stated in the Contume lie Paris, v/hich was transplanted, or rather planted, in Canada by 1 Quebec, 1873 Dec. 9, L. R. V P. C. 84. 2 Quebec, 1874 July 21, L. R. VI P. C. 55. w 476 LEGACY I I i '*i ; i I I CAPACITY OF TIIK I.EfiiATKK royal authority "« the law of Canada under tlio Proneh dominion, the gift in question to Piendorloath would l)o an absolutely null anci void gift, by reason of the doctrines of the law established with respect to adulterine bastardy. They will assume that it was proveN OF CHARITABLE Mayor of Lvon v. Advocatk General of Bengal ' 5. The principles on which the cy-pris doctrine rests appear to be, that the court will treat a charitable legacy in the abstract as the substance of the gift, and the particular dis- position how to apply it as the mode, so that in the eye of the court the gift, notwithstanding the particular disposi- tion may not he capable of execiition, subsists as a legacy 1 lieiigal, 1875 Feb. 5, L. U. I Appeal Cases 91. LEGACY 481 CONKTBri'TION OF CIIAIlITABIiK which uever fails and cannot lapse. Milla v. Farmer, 10 Ves. 486 ; Moggridge v. Thackwell, 7 Ves. 36. 6. When a testator had left a sum of money to liberate poor prisoners for debt, and, subsequently, imprison- ment for debt was abolished, the court applied the money in aid of a college in the same place. paivilkue of a pakticui^ak i.eoatek. Smith v. Buown ' 7. A particular legatee has no claim by privilege or hypo- thec against the private estate of the sole testamentary executor and residuary legatee, prior to the creditors of the latter. TO A CORPORATION MOT YET IS ExiNTESTCE. See AYlliL : usdem verbis. TO ADULTERINE BAMTARD. See LEGACY : cdpaciti/ of legatee, Will : Usdem verbis. TO TUTORS AND GUARDIANS. SseTuTORSHlP : legacy from vmrd. LEGISLATURE COIiONIA". LEUISI.ATURE. PowKLL V. Apollo Candle Company ''■ 8. The 133rd section of the Customs Regulation Act of 1879 of New Soutjx Wales, which imposes a duty upon an article unknown to lUe Collector, and which in the opinion of the Collector is apparently a substitute for any known dutiable article, is not ultra vires and is constitutional. Reg. v. Burals, 3 App. Cas. 889 ; Hodge v. The Queen, 9 App. Cases 117 Sir Robert P. Collieu, p. 2U(J; — Thuso two cases have put un end to a doctrine which appears at one time to have had some cur- rency, that a colonial legislature is a delegate of the Imperial legis- lature. It is a legislature restricted in the area of its powers, out within that area unrestricted, and not acting as an agent or a dele- gate. DISCtUALIFICATION OF MEMBERM. Miles v. McIl wraith ' 9. A rule of the legislative assembly of Queensland pro- hibits any of the members, under pain of disqualification and certain penalties, from entering into any contract with the government whereby pecuniary interest may be derived, 10. The agents of one of the members of the assembly, in contravention of their principal's orders, made with the governra:nt a contract to carry emigrants in a shij) in Avliich 1 Lower Canada, 1837 July. 7, II Moore 35. 2 New South Wnlea, 1885 Feb. 1.3, L. R. X Appeal Cases 282. 3 QuecHslrtud, 1883 Feb. 27, L. R. VIII Appeal Cases 120 31 flB*^ 482 LEGISLATURE DISaVALIFICATION OF MEMBEBS. the member had a share, the agents uot disclosing their principal, and the government being ignorant of the fact that a share of the ship belonged to one of the members of the legislative assembly, and that they were contracting with his agents. Under such circumstances, the Judicial Com- mittee held that the member was uot disqualified. liEOIHLATIVE POWEB8. Beneuolenl societies. L' Union St. Jacques de Montreal v. Bf lisle ' 11. The 92nd section of the Constitutional Act of the Dominion of Canada, in the distribution of legislative powers, assigned to the exclusive power and competency of the provincial legislature : " Generally all matters of a merelji local or private nature in the province.'' Under this section, an Act of the provincial legislature of Quebec which purported to relieve by legislation a benevolent society, appearing to have been in a state of extreme financial embarrassment, is per- fectly constitutional and within the capacity of the pro- vincial legislature. 12. Such legislation must be considered as being of a private character and not falling under the category of bankruptcy and insolvency reserved to the federal parlia- ment. Lord Selborne, p. 933 : — The sole question in this appeal is this, whether the subject matter of the Provincial Act (33 Vict., e. 58), is one of those which by the 91st section of the Dominion Act arc reserved exclusively for legislation. The scheme of the 91st and fl2nd sections is this. By the 91st section some matters — and their Lordships may do well to assume, for the argument's sake, that they are all matters except these afterwards dealt with by the 92nd section — their Lordships do not decide it, but for the argument's sake they will assume it ; certain matters, being upon that assump- tion all those which are not mentioned in the 92nd section, are reserved for the exclusive legislation of the Parliament of Canada, called the Dominion Parliament ; but beyond controversy there are certain other matters, not only reserved for the Dominion Parlia- ment, but assigned to the exclusive power and competency of the Provincial Legislature in each province. Among those the last is thus expressed : "Generally all matters of a merely local or jirivate nature in the province.' If there is nothing to control that in the lUst section, it would seem manifest that the subject matter of this Act, the 33 Vict., c. 58, is a matter of a merely local or private nature in the province, because it relates to a benevolent or benclit society incorporated in the city of Montreal within the province, 1 Quebec, 1874 July 8, Weekly Reporter 933. n LEGISLATURE 483 LEGISLATIVE POWERS. which ap])ears to consist exclusively of members who would be anhpct priniA facie to the control of the Provincial Legislature. This Act tleals solely with the affairs of that particular society-, and in this manner; — taking notice of a certain state of embarrassment resulting from what it describes in substance as improvident regu- lations of the society, it imposes a forced commutation of their existing rights upon two willows, who at the time when that Act was passed were annuitants of the society under its rules, reserving to them the rights so cut down in the future possible event of the improvement up to a certain point of the alfairs of the association. Clearly this matter is private ; clearly it is in the province and in the city of Montreal ; and unless, therefore, the general effect of tliat head of sect. 92 is for this purpose quiililied by something in sect. !*1, it is a matter not only within the competency, but within the exclusive competency of the provincial legislature. Xow sect. 01 ([ualitics it undoubtedly, if it be within any one of the different classes of subjects there specially enumerated in this section shall not be deemed to come within the class of matters because the last and concluding words of sect. 91 are : " And any matter coming within any of the classes of subjects enumerated of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislature of the province." But the onus is on the respondent to show that this, being of itself of a local or private nature, does also come within one or more of the classes of subjects specially enumerated in the 91st section. Now it has not been alleged that it comes within any other class of the subjects so enumerated except the 21st, " Bankruptcy and Insolvency; " and the question therefore is, whether this is a matter coming under that class 21, of ltankru])tcy and insolvency? Their Lordshi]is observe that the scheme of enumeration in that section is, to mention various categories of general subjects which may he dealt with by legislation. There is no indication in any instance of any- thing being contemjjlated, except what may be properly described as general legislation ; such legislation as is well expressed by ilr. Justice Caron when he speaks of thegenerallaws governing i^rt(7W« bankruptcy and insolvency all which are well known legal terms expressing systems of legislation with which the subjects of this country, and probably of most other civilized countries, are per- fectly familiar The words describe in their known legal sense pro- visions made by law for the administration of the estates of persons who may become bankrupt or insolvent, according to rules and definitions prescribed by law, including of course the conditions in which that law is to be brought into operation, the manner in which it is to be brought into operatiim, and the effect of its operation. Well, no such general law covering this particular association is alleged ever to have been passed by the Dominion. The hypothesis was suggested in argument by Mr. Heujuiuin, who certainly ar'^uel this case with his usual ingenuity and force, of a law having been previously passed by the Dominion Legislature, to the effect that any association of this particular kind throughout the Dominion, on certain specified conditions assumed to be exactly those which appear •li 484 LEGISLATUEE !;!: I.EOI8I.ATITE POWERS. upon the face of the statute, should thereupon, ipfiO facto, fall under the legal administration in bankruptcy or insolvency. Their Lord- shijis are hy no means prepareil to say that if any such law as that had been ])assed it would have been bej'ond their competency; nor that, if it had been so passed, it would have been within the competencj' of the Provincial Legislature afterwards to take a particular association out of the scope of a general law of that kind, so competently passed by the authority which had power to deal with bankruptcy and insolvency. But no such law ever has been ])asscd, and to suggest the possibility of such a law as a reason why the power of the Provincial Legislature over this local and private association should be in abej-ance or altogether taken away, is to make a suggestion which, if followed up to its con- sequences, would go very far to destroj- that power in all cases.. It was suggested, perhaps not very accurately, in the course of the argument, that upon the same principle no part of the land in the ])rovince upon the sea coasts could be dealt with, because, by fwssibility, it might be required for a lighthouse, and an Act might )e passed by the Dominion Legislature to make a lighthouse there. That was not a happy illustration, because the whole of the sea coast is put within the exclusive cognizance of the Dominion Legislature by another article ; but the principle of the illustration may be transferred to Article T, which gives to the Dominion the exclusive right of legislating as to all matters coming under the head of " militia, military and naval service, and defence." Any part of the land in the Province of Quebec might be taken by the Dominion Legislature for the purpose of miUtary defence; and the argument is, if pushed to its consequences, that, because this which has not been done as to some particular land might possibly have l)een done, 1 herefore, it not having been done all power over that land, there- fore over all the bind in the province, is taken away, so far as relates to legislation concerning matters of a merely local or private nature. That their Lordships think, is neither a necessary or reasonable, nor a just and proper construction. The fact that this particular society appears upon the face of the Provincial Act to have been in a state of embarrassment, and in such a tinancial condition that, unless relieved by legislation, it might have been Ukely to come to ruin, does not prove that it was in any legal sense within the category of insolvency. And in point of fact the whole tendency of the Act is to keep it out of that categor3', and not to bring it into it. The Act does not terminate the company ; it does not propose a tinal distribution of its assets on the footing of insolvency or bankruptcy; it does not wind it up. On the contrary, it contem- plates its going on, and possibly at some future time recovering its prosperity, and then these creditors, who seem on the face of the Act to be somewhat summarily interfered with, are to be re-instated. Their Lordships are clearly of opinion that this is not an Act relating to bankruptcy and insolvency, and will, therefore, humbly advise Her Majesty that this appeal be allowed, that the judgment LEGISLATUIiK 485 LEOISI.ATIVE POWERS. of the Court of Queen's Bench ought to be reversed, and that the suit be dismissed. There will be no eosts of this iippeui. Taxation. Dow ET AL V. Bl.AOK ' 13. Au Act of the provincial legislature of New BruusAvick whi«"h empowered the majority of the inhabitants of the parish of St. Stephen to raise by local taxation a sitbsidy, designed to promote the construction of a railway extending beyond the limits of the province, but already authorized by statiite passed before the Confederation, is within the legislative capacity of that legislatiire. L' Union St. Jurqtus de Montreal v. Belislf, approved. Stamp on insurance policies. Angers, Attorney (Ieneral ok (^i'erec V. Queen Insurance Company ' 14. An Act of parliament requiring each policy issued by insurance companies to bear a stamp of a value deter- mined by the nature of the risk and the amotmt of the policy, payable by the person dealing with the company, is not a license Act, biit a stamp Act ; and does not fall within the powers granted to a provincial legislature by the Brilisk North America Act, 1867, sect. 92, sub sect. 9 to grant licenses, in order to raise revenue for provincial puri^oses. Sir G. Jessel p. lOlKJ ; — Tlie judgment appealed against was unanimous on one of the t vo points to which the appeal relates, and was decided In' four Judges against on*e on the other. The real decision was tliat the clauses of a statute of the Province of Quebec, ;{9th of the (^ueen, chap. 7, which imposed a tax upon certain policies of assurance, and certain receipts or renewals were not authorised by the Union Act of Canada, Nova Scotia and Xew Brunswick, which entrusted the Province, or the Legislature of that Province, with certain powers conferreil by the 92nd section of the Act in question, are sufficient to authorise the statute which is under consitleration. It is not absolutely necessary to decide in this case how far, if at all the express enactments of the 02nd section of the Act are con- trolled by the provisions of the 91st section, because it may well be tlijit, 80 far as regards the two provisions which their Lordships have to con.sider, namel}'', the subsections 2 and of the n2nd section, those lowers may co-exist with the powers conferred on the Legis- lature of the Dominion by the !)lst section. Assuming that to Ix; HO, the question is : whether what has been done is authorised by those powers ? The tirst power to be considered, though not the tirst in order in 1 New Brunswick, 1875 March 5, L. R. VI P. C. 272. 2 Quebec, 1878 July 5, L. R. Ill Appeal Cases 1090. ^r 486 LEGISLATURE « H i I I.EOIHLATIVE POWKRN. tho Act ofParliamoiit, is the 9th sub-section. Tho Logisliiture of the Province may oxclusivelj' make laws in relation to " siiop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for provincial, local, or municipal purposes." The statute in question purports to be, on the face of it, an exercise of that power. It enacts that every assurer, except people carrying on marine insurance, shall be bound to take out a license before the 1st day of May in each year, from the revenue officer of the district, and to remain continually under license. It then, by the second section, enacts what the price of the license is to be. And reading it shortly, it amounts to this : that the price of the license shall consist of a stamp affixed to the policy or receiptor renewal as the case may be. The adhesive stamp is to be, in the case of tire, 3 per cent., an(l 1 per cent for other assurances on the premiums paid. Then the fourth section enacts that anybody, Avho, on behalfof an assurer, sliall deliver any ])olicy or renewal or receipt without the stamp shall be liable for each contravention to a penalty of fifty dollars. The fifth section says that every assurer bound to take out a license shall be liable in each case to a penalty not exceeding tifty dollars if it has been delivered without an adhesive stamp. The sixth section says that every person who affixes the stamp shall be bound to cancel it so as to obliterate it, and prevent its being used iiixain. And the seventh makes all policies, premium receipts or renewals, not stamped as required by the Act, invalid. It says they " shall not bo " invoked, and shall have r.o effect in hnv or in equity before the " courts of this Province." Then there are certain sections of the Quebec License Act which are incorporated, and the Act is not to apply to assurances not within the Province. The onlj' provision of the Quebec License Act which it is necessary to refer to is the 12th : " For every license issued " by a revenue officer, there shall be paid " to such revenue officer, over and above the duty payable therefor. " a fee of one dollar by the })ers()n to whom it is issued." Now, the first point which strikes their Lordships, aiul will strike every one, as regards this Licensing Act, is that it is a complete ■ iovelty. No such Licensing Act has ever been seen before. It pur- ports to be a Licensing Act, but the licensee is not compelled to pay inything for the license, and, Avliat is more singular, is not compelled to take out the license, because there is no penalty at all upon the acensee for not taking it up; and, further than that, if the policies are issued with the stamp, they appear to be valid, although no license has been taken out at all. The result, therefore, is, that a license is granted which there are no means of compelling the licensee to take, and which he pays nothing for if he does take ; which is certainly a singular thing to be stated of a license. They say on the face of the statute, "The price of each license shall con- sist," and so on. But it is not a price to be paid by the licensee. It is a price to be paid bj- an^'body who wants a policy, because, without that, no policy can be obtained. It may bo that the com- pany buys the adhesive stamps, and affixes them, or pays an officer of the company the morjy necessary to purchase them and affix them ; but whoever does it comjjlies with the Act. LEGISLATURE -187 1.EGISLATIVE POWKRN. Another observation which may bo made upan the Act in this : that if you leave out the clauses about the licunst, th-j crtVct of the Act remains the same. It is renily nothing more nor lesii than a Stamp Act if you le;ive out those chiu:-es. If you leave ovit every direction for taking out a license, and everything said ubout the price of a license, and merely leave the rest of the Act in, the government of the Province of Quebec obtains exactly the same amount by virtue of the statute as it does v, ith the license clauses remaining in the statute. The penalt}' is on the issuing of the Jiolicy, receipt or renewal ; it is not a penalty for not taking out the icenso. The result, thereiore, is this, that it is not in substance a license Act at all. It is notliing more or less than a simple Stamp Act on policies, with provisions referring to a license because, it must be presumed, the framers of the statute thought it was necessary, in order to cover the kind of tax in question with legal sanction, that it should be made in the shape of the price paid for a license. If that is so, it is of no use considering how far, independently of these considerations, the 9th sub-section of the 92nd section would authorise a sum of money to be taken from an assurance company in respect of a license. With regard to the precedents cited, it was alleged, on behalf of the appellants, that though at tirst sight it might appear that this was not a license, and that this was not the price paid for a licence, yet it could be shown bj' the existing legislation in England and America that licenses were constantly granted on similar terms ; ami that therefore in construing the Dominion Act we ought to construe it with reference to the other subsisting legis- lation. Their Lordships think that a very fair argument. But the question is, is it true in fact ? When the instances which were pro- duced were examined, it was found that they were of a totally dif- ferent character. They might be described as licenses granted to traders on payment of a sum of money; but the price to be paid bj- the trader was estimated either according to the amount of business done by the trader in the year previous to the granting of the license, or with reference to the value of the house in which the trader car- ried on business, or with reference to the nature of the goods, as regaids quantity especially, sold by the trader in the previous year. They were all cases in which the price actually paid by the trader for the license at the time of granting it, was ascertained by these considerations. It was a license paid for by the trader, and the actual price of the license was ascertained by the amount of trade he did. This is not a payment depending in that sense on the amount of trade previously done by the trader. It is a payment on the verv transactions occurring in the year for which the license is taken out and is not really a price paid for a license, but as has been said before, a mere stamp on the policy, renewal or receipt. As this is the result to which their Lordships come, it becomes necessar3'- to consider the ett'eet of the 2nd sun-section of the !)2nd section. That authorizes " direct taxation within the Province in order to the raising of a revenue for provincial purposes." The single point to be decided upon is whether a Stamp Act — an Act imposing a stamp on policies, renewals and receipts, with provision J !i ■^m » ': Hi 488 LEGISLATURE IiE<.)INI.ATIVR POWERS. tor avoiding tlie policv, renewal or receipt, in a court of law, if the stum]) is not affixed — is or is not direct taxation '/ Now, here again we find words used which liavo either a technical meaning, or a general, or, as it is sometimes called, a po])ular meaning. One or other meaning the words must have; and, in trying to tind out their meaning, wo must have recourse to the usual si^urces of information whether re- garded as technical words, words of art, or wf)rds used in popular hinguage. And that has been the course pursued by the court below. First of ail, what is the meaning of the words as words of art? We raa^' consider their meaning either as words used in the sense of ])olitical economy, or as words used in jurisprudence in the courts of law. Taken in either way there is a multitude of authorities to show that such a stamp imposed by the Legislature is not direct taxation. The political economists are all agreed. There is not a single instance produced on the other side. The number of instances cited by Mr. Justice Tascbereau, in bis elaborate Judgment, it is not necessary here to more than refer to. But surely if one could have been found in favor of the ap])ellants, it was the duty ot the appel- lants, to call their Lordships' attention to it. No such case has lieen found. Their Lordships, therefore, think that they are war- ranted in assuming that no such case exists. As regards judicial in- terpretation there are some J'higlish decisions, and several American decisions, on the subject, many of which are referred to in tJie juilg- ment of Mr. Justice Taschereaii. There, again, they are all oneway. They all treat stamps either as indirect taxation or as not being direct taxation. Again, no authority on the other side has been cited on the part of the appellant. Lastly, as regards the popular use of the words, two cyclopedias at least have been produced, showing that the popular use of the word is entirely the same in this res})ect as the technical use of the word. And, here again, there is an utter deficiency on the part of the appellants in producing a single instance to the contrary-. That being so. it is not necessary, it appears to their Lordships, for them to consider tlie scientific definition of direct or indirect taxation. All that it is necessary for them to say is, that finding these words in an Act of Parliament, and finding that all the then known definitions, whether technical or general, would exclude this kind cf taxation from the category of direct taxation, they must consider it was not the intention of the legislature of England to include it in the term of direct taxation, and therefore that the imposition of the stam]) duty is not warranted by the terms of the 2nd sub section of section !>2 of the Dominion Act. That being so, it appears to their Lordships that the appeal fails, and they will, therefore, humbly advise Her Ma- jesty to affirm the decision of tlie court below and dismiss the apjjcal. BouEGOiN v. La Cie de Montre.\l, Ottawa et Occidental ' Corporations. 16. A corporation created by the federal parliameut can- 1 Quebec, 1880 Feb. 26, L. R. V Appeal Cases 381. LKGISLATUEK 489 liEOISI.ATIVE POWERS. not be dissolved and its property transferred to another cor- poration by an Act of the provincial parliament. Sir James W.Colville, p. 402 :— Tho combined ettect, therefore, of the deed and of this Mtutiite, if the transaction wiiii valid, was to transfer a federal railway, with all its appurtonances, and all tho property, liabilities, rights, and powers of the existing company, to the Quenec government, and, through it, to a company with a new title and a different organization ; to dissolve the old federal com- ])any, anil to substitute for it one which was to bo governed by, and subject to, provincial legislation. It is contended on the part of tho appellants that this transaction was invalid, and altogether inoperative to ati'ect the obligations of the company. They insist that, by the general law and by reason of the special legislation which governed it, the company was in- competent thus to dissolve itself, to abandon its undertaking, and to transfer that, and its own property, liabilities, powers, anil rights to another body, without the sanction of an Act of a competent legisla- ture; and, further, that the legislature of Quebec was incomjjetent to give such sanction. This contention appears to their Lordsliijjs to be well founded. That such a transfer, except under the authijrit}^ of an Act of Parliament, would in this country be held to bo ultra viren of a railway company, appears from the judgment of Lord Cairns in re Ganlner v. London, Boviw, and Chatham Jtailivai/ Company, 2 Chan- cery Appeals, 201 and 212. That it is equally repugnant to the law of the Province of Quebec, so far as that is to be gathered froni the civil code, is shown by the 3t)9th article of that code. But the strongest ground in favour of the appellants' contention is to be found in the special legislation touching this railway company. The history of the company and of its conversion from a provincial into a federal railway company has been stated in the judgment already delivered. By section 1 of the Canadian Statute, 30 Vict., c. 82, which efl'ected that conversion, the railway was declared to be a work for the general advantage of Canada. By the 5th section of the same statute, it was enacted that the continuation of the line thereby authorized should be deemed to be railways or a railwaj- to be constructed under the authoritj- of a special Act passed by tho Parliament of Canada, and that the company should be deemed to be a company incorporated for the construction and working of such railways and railwav, according to the true intent and meaning of " The Eailway Act, 1808 " (The JDominion Statute). By the 0th section, parts 1st and 2nd of "The Eiulway Act, 1808" (which com- prise all the general and material provisions of that statute,) were made applicable to tho whole line of the railway, whether within or beyond the enterprise originally contemplated ; and it was enacted that no part of "The Quebec Eailway Act, 180!t,"' should n[i[>\y to the said railway, or any part thereof, or to the said company. And by the tth section it was provided that the two Acts of the Quebec Legislature (32 Vict., c. 35, and 34 Vict., c. 28,) by which the com- pany had been incorporated and previously governed, should bo ■r * ■tlL 490 LEGISLATURE 11 ii ; m I i' {■ 'jit; I.E«INI,ATIVR POWKRN. read and coiistnii'd and have offbct as if tho chan<^os ofoxproHnion therein mentioned (tlieetlect of'wliicli would ho to make them npeuk us Aets of the (Janadian Parliament) hud been made in them ; that HO read and eonstnied und taiiinf^ effect, they should he doomed to ho s|K'eiul Acts according to tho true intent and moanin.;' of "Tho Railway Act, 18t!8," and thut no purt of " Tho (iueboc Ruilwuy Act. 18()i)," sliould ho incorporated with tho said special Acts, or oithor of them, or form purt thereof, or he construed therewith us forming^ one Act. ^JMieso provisions, taken in connection with, und road by tho light of those of the Imperial Statute, " tho British North American Act, 1867," which aro contained in section 01, und sub-section 10c of section !t2, establish to their Lordships' satisfaction, that tho transac- tion between tlio company and tlio government of Quebec could not be validated to all intents und purposes liy an Act of tho provincial legislature, hut that an Act of the purliument of Cunada was essential in order to give it full force und eliect. This proposition was, finally, hai'dly disputed by the leurned counsel for the respondent, but tiiey relied upon the 8th cluuse of the deed, und the 4()th section of tho (Quebec Act, us showing that recourse to the purliument of Canada for its sanction was within tiie contemplation of the parties, and contended thut, before thut sunction was obtainetl, tho transaction wus valid for some purposes, and gave certain inchoate rights which were capable of being asserted. In support of their argument they cited tlie Great Western Railway Company v. The Birmiwjham and Oxford Junction Railway, 2 Phill. 51)7, und what was said by Lord Cottenliam in that case. It is to be observed, however, that Lord Cottt iiham, when ruling that tho contract, which could not be fuUj' carried out without Parliumentury sunction, wus not, in tho absence of such sanction, to be treated us u nullity, und thut some of its pro- visions might nevertheless bo binding, was dealing with tlie rights of the parties to the contract inter se. Here the jjublic, and tho creditors of the company, in which category the appellants fell since the questions raised oy these two uppeuls must ue considered us if the uwnrd were vulid, were no purties to the transaction, und could not be uffected by it until it wus fully vuiiduted by an x\.ct of tho Parliament of Canada, to obtain which no nttempt seems ever to huve been mudc. In their Lordships' opinion, therefore, tho ti-ans- action, considered as a whole, wus of no force or validity us against the rights of the appellants when tho decisions of tho Cunudian courts upon tho intervention und tho opposition were passed. This being their Lordships' conclusion, they proceed to consider how it afi'ects the two appeals, and first that which rehites to tho Attorney General's intervention. Now, if it bo admitted, for tho sake of urgument, though their Lordships must not bo taken to affirm the proposition, thut the Attorney Generul had such an in- choate right under the transaction as would have justified his inter- vention had there been reason to suppose that tho expiring company would fail to make u substantial defence to tho action No. 1,213, it is to be observed thut thut wus not tho uctual state of things. Tho uction itself was not commenced until December 1876, and tho do- LKfllSLATURK 4'Jl LCOIMLATIVR POWKRN. IbiK'os of the company woro filed on tlic Hfllhoftliat monlli. Tin IrnnHuction between the company and the (Quebec Govornment was completed, so far as it was ever completed, in J)ecember IH7r). It is, therefore, obvious that, in the first instance, the ()uebco Government intended to defend the action, in the name of the com- ])any, inider the provisions of the 7th clause of the deed. All olijec- tions whidi the company could take to the award, and in particidar the one which has proved fatal to it, were taken in their defences. The intervention of the Attorney General was not until 1- poso what was suggested by Chief Justice Dorion were really to happen, that the J)oniinion government were to take steps to set usiile the trajisaetion, cmdil the government ot' (Quebec be heard to say, ''True, the transacticm will not stand as a transfer of the " railway, or of the rights, powers, liabilities, and duties of the " company, but it may enure aw r. sale of the lands acquired in order " to the construction of the railway, or part of them, in the exer- " cise of the power in question." Would not the answer be, " there " is no trace of such a contract, or of an intention to make it? " By the evidence taken on this proceeding, it appeared that a con- siderable part of the lands, rolling stock, and other property seizers wore l, and whether the power of the Provincial Legislature is or is not thereby over- borne. The main contention on the part of the respondent was that the Ontario Act in question had relation to matters coming within the class of subjects described in Xo. 13 of section 92, viz., '' Property and Civil Rights in the Province." The Act deals with ))olicies of insurance entered into or in force in the Province of Ontario for insuring property situate therein against tire, and prescribes certain conditions wnich are to form jjart of such contracts. These con- tracts, and the rights arising from them, it was argued, came legitimately within the class of subject. '' Property and Civil Eights." The appellants, on the other hand, contended that civil rights meant only such rights as flowed from the law, and gave as an instance the status of persons. Their Lordships cannot think that the latter construction is the correct one. They find no sulficient reason in the language itself, nor in the other parts of the Act, for giving so narrow an interpretation to the words " civil rights." The words are sutiiciently large to embrace in their fair and ordinary meaning, rights arising from contract, and such rights are not included in any of the enumerated classes of subjects in section 01. It becomes obvious, as soon as an attempt is made to construe the general terms in which the classes ■ f subjects in sections 91 and 92 are described, that both sections and the other parts of the Act must be looked at to ascertain whether language of a general nature must not by necessary implication or reasonable intendment be modified and limited. In looking at section 91 it will be found not only that there is no class including, generally, contracts and the rights arising from them, but that one class of contracts is mentioned and enumerateil, viz., " 18, bills of exchange and promissory notes," which it would have been unnecessary to specify if authority over all contracts and the rights arising from them had belonged to the Dominion Parliament. The provision found in section 94 of the British Iforth America Act, which is one of the sections relating to the distributicna of legis- lative powers, was referred to by the learned counsel on both sides as throwing light upon the sense in which the words " property and civil rights " are used. By that section the Parliament of Canada is empowered to make provision for the uniformity of any laws relative to " property and civil rights" in Ontario, Xovu Scotia and New Brunswick, and to the procedure of the courts in these three provinces, if the provincial legislatures choose to adopt the pro- vision so made. The Province of Quebec is omitted from this section for the obvious reason that the law which governs property ami civil rights in Quebec is in the main the French law, as it existed .'{■: if 500 LEGISLATUEE i| I.KOINI.ATIVE POWERS. at the time of thf^ cession of Canada, and not the English law which ]»rovails in t'l'^ -> iier provinces. The words "property and civil rights" ' TO, J' , used in the same sense in this section as in No. 13 otsc' . *;. \ there seems no reason for presuming that contracts ard .> . •'/,'. J ' arising from them were not intended to be included in this provision for uniformity. If, however, the narrow conbtruction ' / the words " civil rights," contendetl for by the ap- pellants, were to p" vail, I'l dominion Parliament could, under its general power, legiM.ae in i^iiard 'o contracts in all and each of the provinces, and, as a conseqiiLnce of this, the Province of Quebec, though now governed by its own Civil Code, foundeil on the French law, as regards contracts and their incidents, would be subject to have its law on that subject altered by the Dominion Legislature, and brought into uniformitj' with the English law prevailing in the other three provinces, notwithstanding that Queliec has been carefully left out of the uniformity section of the Act. It is to be observed that the same words, " civil rights," arc em- ployed in the Act of 14 George 111, c. 83, whicli made provision for the government of the Province of Quebec. Section 8 of that Act enacted that His Majesty's Canadian subjects within the Province of Quebec should enjoy their property, usages, anil other civil rights, as they had before done, and that in all matters of c:>ntrovci'sy rela- tive to property and civil rights, resort should be had to the laws of Canada, and be determined agreeably to the said laws. In this statute the words "property" and " civil rights" are plainly used in their largest sense ; and there is no reason for holding that in the statute under discussion they are used in a ditferent anil narrower one. The next question fur consideration is whether, assuming the On- tario Act to relate to the subject of property and civil rights, its enactments and provisions come within any of the classes of subjects enumerated in section i)l. The only one which the appellants sug- gested as expressly including the subject of the Ontario Act is No. 2, the " regulation of trade and commerce." A question was raised which led to much discussion in the courts below and at this bar, viz., whether the business of insuring buildings against tire was a trade. This business, when carried on for the sake of profit, may, no doubt, in some sense of the word, be called a trade. But contracts of indemnity made bj* insurers can scarcely i)e considered trading contracts, nor were insurers who made them held to be "traders" under the English bankruptcy laws; they have been made subject to these laws by special description. Whether the business of fire insurance properly falls within the description of " a trade " must, in their Lordships' view, depend upon the sense in Avhich that word is used in the particular statute to be construed ; but in the present case their Lordships do not find it necessary to rest their decision on the naiTow ground that the business of in- surance is not a trade. The words " regulation of trade and commerce," in their unlimited sense, are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign governments, LEGISLATURE 501 I.EGISI.ATITE POWKnS. roqniring the sanction of Parliament, down to minute rules for regulating particular trades. But u consideration of the Act shows that the words were not used in this unlimited sense. In the lirst place, the collocation ofNo. 2with classes of subjects of national and general concern aft'ords an indication that regulations referring to general trade and commerce were in the mind of the Legislature. when conferring this power on the Dominion Parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specitic mention of several of the other classes of subjects enumerated in section 01 would have been unnecessary ; as, 15, banking; IT, weights and measures; 18, bills of exchange and promissory notes; 19, interest; and even 21, bankruptcy and insolvency. " Regulation of tratle and commerce " may have been used in some such sense as the words " regulations i^i' trade" in the Act of Union between England and Scotland ((i Anne, c. 11), and as tiiese words liave been used in other Acts of State. Article V of the Act of Union enacted that all the subjects of the United Kingdom should have " full freedom and intercourse of trade and navigation " to and from all places in the United Kingdom and the colonies: and article VI enacted that all parts of the United Kingdom from and after the Union should be under the same " prohibitions, restrictions, and regulations of trade." Parliament has at various times since the Union passed laws att'ecting and regulating specific trades in one part of the United Kingdom only, without its being supposed that It thereby infringed the articles of Union. Thus the Acts for re- gulating the sale of intoxicating liquors notoriously vary in the two kingdoms. So with regard to Acts relating to bankruptcy, and various other matters. Construing therefore the words "regulation of trade and com- merce " by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade re- quiring the sanction of parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade atfecting the whole Dominion. Their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the Dominion Parliament in this direction. It is enough for the decision of the present case to sa^- that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single province, and therefore that its legislative authoritj' does not in the present case conflict or com- ])ete with the power over property and civil rights assigned to the Legislature of Ontario by No. 13 of section 92. Having taken this view of the present case, it becomes unneces- sary to consider the question how far the general powei" lo make regulations of trade and commerce, when competently exercJM'd by the Dominion Parliament, might legally modify or affect pro])erty and civil riglits in the provinces, or the legislative power of the Pro- vincial Legislatures in relation to those subjects; questions of thi.i ,*■- I N 1 r)02 LEGISLATURE LEOIMLATIVE POWERS. kind, it maj- be observed, arose and were treated of by this Board in the cases of L' Union St. Jacques de Montrial v. Belisle, L. I?. IJ P. C. 31, and Cushiny v. Bujmy, L. R. 5 Appeal cases 409. It was contended in the case of the Citizens Insurance Company of ('anada, that the company having been originally incorporated l)y the late Province of Canada, and having had its incorporation and corporate rights contirmed by the Dominion Parliament, could not be art'ected by an Act of the Ontario Legislature. But the latter Act does not assume to interfere with the constitution or status of corporations. It deals with all insurers alike, including corporations and companies, whatever may be their origin, whether incorporated iiv British authority, as in the case of the Queen Insurance com- pany, or bj' foreign or colonial authority-, and without touching their status, requires that if they choose to make contracts of insurance in Ontario, relating to property in that province, such contracts shall be subject to certain conditions. It was further urged that the Ontario Act was repugnant to the Act of the late Province of Canada, which empowered the company to make contracts for assurance against fire ■' upon such conditions as might be bargained for and agreed upon between the company and the assured." But this is, in substance, no more than an ex- panded ilescription of the business the company was empowered to transact, viz., to make contracts of assurance against fire, and can scarcely be regarded as inconsistent with the specific legislation regarding such contracts contained in the act in question. It was further argued on the part of the appellants that the On- tario Act was inconsistent with the Act of the Dominion Parliament, iiS Yict., c. 20. which requii'es fire insurance companies to obtain licenses from the Minister of Finance as a condition to their carrying on the business of insurance in the Dominion, and that itwasbeyonil the competency of the Provincial Legislature to subject companies which had obtained such licenses, as the appellant companies had done, to the conditions imposed by the Ontario Act. But the legislature does not reallj' conflict or present any inconsistency. The statute of the Dominion Parliament enacts a general law apiilicalde to the whole Dominion, requiring all insurance companies, whether incor- porated by foreign, Dominion, or Provincial authority to obtain a license from the Minister of Finance, to i)e granted only upon com- pliance Avith the conditions prescribed W the Act. Assuming this Act to be within the competency of the Dominion Parliament as a general law applicable to foreign and domestic corporations, it in no Avay interferes with the authority of the Legislature of the Pro- vince of Ontario to legislate in reUition to the contracts which cor- porations may enter into in that province. The Dominion Act con- tains the following jjrovision, which clearly recognises the right of the Provincial Legislature to incorporate insurance companies for carrying on bu.siness within the province itself: — " But nothing herein contained shall prevent any insurance com- " pany incorporated by or under anj'Act of the Legislature of the " late' Province of Canada, or of any province of the Dominion o- " Canada, from carrying on any business of insurance within tho LEGISLATURE 503 I.EOINLATIVE POWERS. " limits of the lato Province of Canada, or of sucli province only '• according to the powers granted to such insurance company within " such limits as aforesaid, without such license as hereinafter men- " tioned." This recognition is directly opposed to the construction sought to he placed by the appellants' coutisel on the words " provincial objects" in Ifo. 11 ot section 92, — ' the incorporation of companies with provincial objects," by which he sought to limit these words to " public " provincial objects, so as to exclude insurance and com- mercial companies. Chief Justice Ritchie refers to an equally explicit recognition of the power of the provinces to incorporate insurance companies con- tained in an earlier Act of the Dominion Parliament (31 Vict., c. 48) which was passed shortly after the establishment of the Dominion. The learned Chief Justice also refers to a remarkable section con- tained in the Act of the Dominion Parliament consolidating certain acts respecting insurance, 45 Yict., c. 42. Section 28 of that act is as follows ; — " This Act shall not apply to any company within the exclusive ■' legislative control of any one of the provinces of Canada, unless " such company so desires; and it shall be lawful for any such com- " pany to avail itself of the provisions of this act, and if it did sn " avail itself, such company shall then have the power of transacting " its business of insurance throughout Canada." This provision contains a distinct declaration by the Dominion Parliament that each of the provinces had exclusive legislative con- trol over the insurance companies incoriwrated by it, and therefore is an acknowledgment that such control was not deemed to be an infringement of the power of the Dominion Parliament as to " tho regulation of trade and commerce." The declarations of the Dominion Parliament are not, of course, conclusive upon the construction of the British Xorth America iVct ; l)ut when the proper construction of the language used in that Act to detine the distribution of legislative powers is doubtful, the inter- pretation put upon it bv the Dominion Parliament in its actual legislation may properly be considered. The opinions of the majoritj- of the Judges in Canada, as summed up by Chief Justice Ritchie, are in favour of the validity of the On- tario Act. In the present action, the Court of Queen's Bench and the Court of Appeal of Ontario unanimously supported its legality ; and the Supreme Court of Canada by a majority of three Judges \o two, have affirmed the judgment of the Provincial Courts. The opinions of the learned Judges of the Supremo Court of Canada are slated with great fullness and ability, and clearly indicate the opposite views which may bo taken of the act, and the difficulties which surround any construction that may be given to it. Jlr. Justice Taschereau, in the course of his vigorous juilgnient, sought to place the Plaintilt'in the action against the Citizens cuin- ])any in a dilemma. He thinks that the assertion of the right of the province to legislate with regard to the contracts of insurance com- panies amounts to a denial of the right of the Dominion Parliament ili fi04 LEGISLATUKE 4> Ti ■: !; :i~ .(.i •« I.EGIHLATITE POWERS. to do so, and that this is, in effect, to deny the right of that J'arlin- nient to incorporate the Citizens company, so that the Piaintiti'waH suing a non-existent defenilant. Their Lordships cannot think that this dilommu is established. The learned Judge assumes tiiat tlit jjower of tlie Dominion Parliament to incorporate companies to carry on business in the Dominion is derived from one of the enumerated classes of subjects, viz., " the regulation of trade and commerce,' and then argues that if the authority to incorporate companies is given by tliis clause, the exclusive ])Ower of regulating them must also be given Ijy it, so that the denial of one power in- volves the denial of the other. But, in the tirst place, it is not necessary to rest the authority of the Dominion Parliament to incorporate companies on this sj)ecific and enumerated power. The authority would belong to it by its general power over all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces, and the only subject on this head assigned to the Provincial Legislature being " the incorporation of companies with provincial objects," it follows that the incorporation of companies for objects other than provincial falls within the general powers of the Parliament of Ca- nada. But it by no means follows (unless indeed the view of the learned Judge is right as to the scope of the words " the regulation of trade and commerce") that because the Dominion Parliament had alone the right to create a corporation to carry on business throughout the Dominion that it alone has the right to regulate its contracts in each of the provinces. Suppose the Dominion Parlia- ment wei'c to incorporate a company, with power, among other things, to purchase and hold lands throughout Canada in mortmain, it could scarcely be contended if such a comjiany were to carrj' on business in a province where a law against holding land in mort- main prevailed (each province having exclusive legislative power over "property and civil rights in the province") that it could hold land in that i)rovince in contravention of the provincial legis- lation ; and, if a company were incorporated for the sole purpose of purchasing and holding land in the Dominion, it might hapj)en that it could do no business in any part of it, by reason of all the pro- vinces having passed Mortmain Acts, though the corporation would still exist and preserve its status as a corpoi-ate body. On the best consideration they have been able to give to the argu- ments addressed to them and to the judgments of the learned judges in Canada, their Lordships have come to the conclusion that the Act in question is valid. Corporations. DoBiE V. The Temporalities Board for the management op THE TEMPORALITIES FuND OP THE PrESUYTERIAN ChLRCH of Canada Corporation ' 20. The charter of a corporation created by the parliament of Canada to have its existence in Quebec and Ontario, 1 Quebec, 1882 Jan. 21, L. R. VII Appeal CaacB 13t3. ^l :ri wits ! i LKGLSLATUItK &05 XKOIBIiATIVe POWERS. •cannot be repealed or modified by the legislature of either province, or even by the «onjoint operatioii of both, but •only by Dominion parliament. LoKD Watson, p. 147: — The act of the Parliament of tlio pro- vince of Canada, 22 Vict., c. 66, wan, after tlie i)assing of the H. X. A. Act, 1867, continued into force within the provinces of Ontario and Quebec by virtue of sect. 129 of tlie latter statute, whicii inter •alia enacts that except as therein provided ail hiws in force in Canada at the time of the union thereby atl'ccted, shall continue in Ontario and Quebec as if the union hacl not been made, lint that enactment is qualitied by the provision that all such laws with the exception of tlioso enacted by the Parliament of (Ireat Britain, shall be subject " to be repealed, abolished, or altered by the Parliament of Canada or Ijy the Legislature of the respective provinces ac- cording to the authority of the parliament or that legislature under this act. The powers confierred by this section upon the ])rovincial Jegislature of Ontario and Quebec to repeal and alter the statutes of the old parliament of the province of Caiuida are made precisely co-extensive with the powers of direct legislation with which these bodies are invested by the other clauses of the act of 1807. In order, therefore, to ascertain how far the provincial legislature of (Quebec had power to alter and amend the act of 1858 incorporating t'le Board for the management of the Temporalities Fund, it becomes necessary to revert to sects. 91 and 92 of the British N. A. A., whicli enumerates and defines the various matters which are within the exclusive legislative authority of the Parliament of Canada, as veil as those in relaticm to which the legislatures of the resjiective provinces have the exclusive rights of making laws. If it could be established that, in the absence of all previous legislation on the subject the legislature of Quebec would have been authorized by sect. 92 to pass an Act in terms identical with the 22 Vict., c. 66, then it would follow that tlie act of the 22nd Vict, has been validly amended by the 38 Vict., c. 64. On the other hand, if the legislature -of Quebec has not derived such power of enactment from .^^ect. 92, the necessary inference is that the legislative autliority required, in terms of sect. 129, to sustain its right to appeal or alter an old law of the parliament of Canada is in this case wanting, and that the act •38 Vict., c. (J4, was not intra vires of the legislature by which it was j)a88ed. The general scheme of the B. JT. A. Act, 18G7, and in particuhir the general scope and effect of sect. 91 and 92 have been so fully •commented upon by this Board in the recent cases of the Citizena Insurance Company y. Parsons, that it is unnecessary to say anything further upon that subject. Tlieir Lordships see no reason to modify in any respect the principles of law upon whicli thej- proceeded in •deciding these cases ; but in determining how far tiicse principles •apply to the present case, it is necessary to consider to what extt-ul the circumstances of each case are identical or similar. The case of The Citizens Insurance Company of Canada v. Parsons Glomes nearest in its circumstances to the present, as in that case the ./ ' I 1 ! r 1 BOO LEGISLATURE I.KOINL.iTIVE POWRKH. ivppelliinl foinpany wan incorporated by, and dorivod all its statutory rights ami priviU'gos from an Act of tho Province) of Canada, when-as, The Queen Insurance Company was incorporated under the pr(l\^si(ln^ of tiie Britif>li Joint Stock Companies Act, 7 and S Vict., cap. 11(». In both cases the validity of an act of tho Legislature of Ontario was impeached on the ground that its provisions wore ultra r/re.sof a provincial Legislature, and wore not binding unless enactoil iiy the I'arliament of Canaila. It was contended on behalf of the Citizens Insurance (i>m])any that the statute complained of was invalid in respect that it virtually repealo Ontario Act, 31* Vict., cap. 31, and the Quebec Act, 3S Vict., ciuip. (i4, were of the same or substantially the same character. But upon an examination of those two statutes, it becomes at once aji- parent tlcit there is a marked difference in the character of their respective enactments. Tho Ontario Act merely proscribed that certain conditions shouM attach to every policy, ontorod into or in force, for insuring pro]ieriv situate within tho Province against tho risk of tire. It dealt with all corj)rirations, companies and individuals alike who might choose to insure property in Ontario, — it did not interfere with their constitution or status, but required that certain rcasonabk- conditions should be held as inserted in every contract made by them. The Quebec Act, 38 Vict., cap (>■[, (m tho contrary, deals with a single statutory trust, and interferes directly with tho constitution and privileges of a corporation created by an act of the Province of Canada, and having its corporate existence and corporate rights in the Province of Ontario, as well in tho Province of Quebec. The professed object of tho act and tho oftoct of its provisions is not to imjtoso conditions on tho dealings of tho corporation with its funds within the Province of Quebec, but to destroy, in the first place, the old corporation, and create a new one, and, in the second place, to alter materially the class of persons interested in the funds of tho corporation. According to tho principles established by the judgment of this Board in the cases already referred to, the first stop to be taken, with a view to test the validity of an Act of the Provincial Legis- lature, is to consider whether tho subject matter of the act falls within any of the classes of subjects enumerated in sec. 92. If it dues not, then the act is of no v .'.dity. If it does, then these further questions may arise, viz., " whether, notwithstanding that it is so, " tho subject of the act does not also fall within one of the enumerated " clas.ses of subjects in see. 91, and whether the power of the Pro- " vincial Legislature is or is not thereby overborne." Does then the Act. 38 Vict., c. G-i, fall within anj- of the classes enumerated in sec. 92, and thereby assigned to the Provincial Legis- latures? Their Lordships are of opinion that it does not; and con- sequently that its enactments are invalid, and that tlie constitution and duties of the Board for managing the Temporalities Fund must still be regulated by the Act .f 1858. r.KGlSLATl'HK 607 LKCaNI.ATIVK PUWKHN. It waw contonded l)y tlie rcspomleiits that llic (^iioboc Act of ISlTt in within nno or moro of these tlirco chis.sos of sulijocts onumoratod in HOC. Uli. - (7). The o.stabliHlinu'Ml, maintoiianoe, and nianaycnionl nl liowjii- , as\ lum^, charities, and eU'om<)>ynan I'rovinee otiier than tlic marine liospital- taln, asyhinis, charities, and eleemosynary in>titutii)ii.» in and fi lospi- tv the " (11). Tliu incorporation of companies with provincial uhjocts." " (13). Property and civil rij,'hts in \Uv I'rovinee." The most plausinio ard and exists. If these rights and interests were ca])ablo of division according to their local position in Ontario and Quebec, respective!}', the Legislature of each Province would have power to deal with them so far as situate within the limits of its authority. If, by a single Act of the Dominion Parliament, there had been constituted two separate cor- g orations, for the purpose of working, the one a mine within the rovince of Upper Cniuida, and the other a mine in tho Province of Lower Canada, tho Legislature of (Quebec would clearly have had authority to repeal the Act so far as it related to tho latter mine anil tlu' corporation uy which it was worked. The (Quebec Act 38 Vict., cap. fU, does not profess to repeal and amend the Act of 1858, oidy in so far as its provisions ma}' aj)ply to or be operative within tho Province of (Quebec, and it.s enact- ments are apparently not framed with a view to any such limitation. The reason is obvious ;ind is a reason which appears to their Lord- ships to be fatal to the validity of the act. Tho corporation and the corporate trust, tho matter to which its provisions relate, are in reality not divisible according to the limits of provincial authority. In every case where an act applicable to the two Provinces of Quebec and Ontario can now be validly repealed by one of them, the result must be to leave the act in full vigour within the other Province. But, in tho present case, tho legislation of liuebec must necessarily att'ect the rights and status of the corporation as pre- viously existing in the Province of Ontario, as well as tho rights and interests of individual corpoi.-.i^;" in that Province. In addition to that, the fund administered by tho corporate Board, under the Act of 1858, is held in perpetuity for the benotit of the ministers and members of a Church having its local situation in both Provinces, and tho proportion of the fund and its revenues falling to either Province is uncertain and fluctuating, so that it would be impossible for the Lojiislaturo ■Qi: Ipprnp corporate funds to their own Province without trenching on tho rights of the corporation in Ontario. These observations regarding Class (13) apply with equal force to tho argument of tho respondents founded on Classes (7) and (11). ■f""^ 508 LEGlSLATUIiB ^^i i?:r I^EOIH NATIVE P»WKRN. Even asisuming that the Temporalities Fund might be correctly ♦lescribed as a " charity" or as an " eleemosynary institution," it is not in any sense established, maintained, or managed " in or for " the Province of Quebec; and if the Board, incorporated by the Act of 1858, could be held to be a " company " withm the meaning of (vlass (11) its objects arc certainly not provincial. The respondents further maintained that the Legislature of (Quebec had power to pass the Act of 1875, in respect of these special circumstances, (1) that the domicile and principal office of the Temporalities Board is in the city of Montreal; and (2) (hut its tunds also are held or invested within the Province of Quebec. These tacts are admitted on record by the appellant, but thej do not atl'ect the question of legislative power. The domicile of the corporation is merely forensic, and cannot alter its statutory constitution as a Board in and for the Provinces of Upper Canada and Lower Canada. Neither can the accident of its funds being invested in Quebec give the Legislature of that Province authority to change the constitution of a corporation with which it would otherwise have no right to interfere. When funds belonging to a corporation in Ontario are so situated or invested in the Province of Quebec, the Legislature of (Quebec may impose direct taxes upon them for provincial purposes, as authorized by section 02 (2), or may im))Ose conditions upon the transfer or realization of such funds; but that the Quebec Legisla- 1 ure shall have power also to confiscate these funds, or any j^art of them, for provincial jiurposes, is a proposition for which no warrant is to be found in the Act of 1867. Last of all it was ai-gued for the respondents that, assuming the incom])etency of either Provincial Legislature, acting singly, to in- terfere with the Act of 1848, that statute might be altered or repealed by their joint and harmonious action. The argument is based upon fact, because, in the year 1874, the Legislature of On- tario ])assed an act (38 Vict., cap. 75), authorizing the union of the four Churches, and containing provisions in regard to the Temjjo- ralities Fund and its Board of Management, substantially the same with those of the Quebec Act, 38 Vict., cap. 62, already referred to. It is difficult to understand how the maxim juncta juvant is ap- plicable here, seeing that the power of the Provincial Legislature to destroy a law of the old Province of Canada is measured by its capacity to reccmstruct what it has destroyed. If the Legislature of Ontario and Quebec were allowed jointly to abolish the Board of 1858, which is one corporation in and for both Provinces, they could only create in its room two corporations, one of which would exist in and for Ontario and be a foreigner in Quebec, and the other of which would be foreign to Ontario but a domestic institution in (Quebec. Then the funds of the Ontario corporation could not be legitimately settled upon objectb in the Province of Quebec, and as little could the funds of the Quebec corporation be devoted to On- tario, whereas the Temporalities Fund falls to be applied either in the Province of Quebec or in that of Ontario and that in such amounts or proportions as the needs of the Presbyterian Church of Canada in connection with the Church of Scotland, and of its ministers and LEGISLATUEE 509 ectly it is for" Act ig of I.EOISI.ATIVE POWERS. congregations, may from time to time require. The Parliament of Canada is, therefore, the only Legislature having power to niodifj- or repeal the provisions of the Act of 1858. Corporations. CoLONrAL Building and Investment Association v. Attoknev General ok (Ji;ehec ' 21. TheDomiuiou parliament alone has the right to incor- porate a body with the powers to carry on a certain definite kind of business, and to hold lands, in the whole Dominion. 22. The fact that such corporation chose to confine the exer- cise of its powers to one province, and to local and provincial objects did not affect its status as a corporation. And a dis- tinction must be made between the rights of sui'h i-or- poration to hold lands in the provinces, and the fact that it does hold lands without the consent of the Crown in the provinces. Sir Montague E. Smith, p. 166 : — The broad objection taken by the Attorney General in the petition is, that the Association was not legally incorporated, the statute incorjjorating it being ultra vires of the Parliament of the Dominion. The judgment of the Superior court, given by Mr. Justice Caron, distintly overruled this objection. Mr. Justice Tessier is the only Judge of the Court of Queen's Bench who affirmed it. Chief Justice Dorion, in a judgment which received the concurrence of two other Judges, acknowledged that having regard to the observations of this Board in the case of The Citizens Insurance Company of Canada v. Parsons (L. E., 7 Appeal Cases, 96) it could not be held that the incorporation of the Association was beyond the powers of the Dominion Parliament, and illegal ; ami the majority of the court gave judgment upon the assumption, as their Lordships understand the reasons of the Judges, that the Association was lawfully incor- porated. The conclusion of the formal judgment of the Court is as follows : — " The said Company, Respondents, had and have no right to act " as a corporation for or in respect of any of the said operations of " buying, leasing or selling of landed property, buildings, and ap- " purtenances thereof, or the purchase of building materials to " construct villas, homesteads, cottages, or other buildings and pre- " mises, or the selling or lotting of the same, or the establishment of " a building or subscription fund for investment or building purjjoses, " or the acting as agents in connection with such operations as the '■ aforesaid, or any like att'airs, or any matter of property or civil •' rights, or any ODJccts of a purely local or provincial nature in any " manner or way within the said Province ot (Quebec, and doih pro- " hibit the said Company Respondents, from acting as a corporation 1 Quebec, 1883 Dec. 1, L. R. IX Appeal Cases 157. m mBmmmsmmam .14 II ggg ■ i 1 f : 1 H i ■ I' - 1 i ii 1 510 LEGISLATUEE LEUtHLATIVE POWERS. " within the said Province of Quebec for any of the ends or the ^jur- " poses aforesaid." Mr, Justice Monk, in a short but clear judgment, dissented from his colleagues, and agreed with Mr. Justice Caron's judgment. Their Lordships cannot doubt that the majority of the court was right in refusing to hold that the Association was not lawfully in- corporated. Although the observations of this Board in the Lmtrance Company v. Parsons, referred to by the Chief Justice, put a hypo- thetical case by way of illustration onlj', and cannot be regarded as a decision on the case there supjiosed, their Lordships adhere to the view then entertained by them as to the respective powers of the Dominion and Pz'ovincial Legislatures in regard to the incorporation of conii)anies. It is asserted in the petition, and was argued in the courts below, and at this bar, that inasmuch as the association had contined its operations to the Province of Quebec, and its business had been of a local and private nature, it followed that its objects were local and provincial, and consequently that its incorporation belonged exclu- sively to the Provincial Legislature. But surely the fact that the association has hitherto thought lit to confine the exercise of its powers to one province cannot atfect its status or capacity as a cor- poration, if the act incorporating the association was originally within the legislative jjower of the Dominion Parliament. The com- pany' was incorporateil witli powers to carry on its business, con- sisting of various kinds, throughout the Dominion. The Parliament of Canada could alone constitute a corporation with those powers; and the fact that the exercise of them has not been co-extensive with the grant, cannot operate to repeal the actof 'ncorporation, nor warrant the remedj- prayed tor, viz., that the company be declared to be illegally constituted. It is unnecessary to consider what remedy, if any could be resorted to if the incorporation had been obtained from Parliament with a fraudulent object, for the only evident given in the case discloses no ground for suggesting fraud in obtaining the act. Their Lordships therefore think that the courts in Canada were right in holding that it was not comiietent to them to declare, in ac- cordance with the prayer of the petition, that the Association was illegally incorporated, and ought to be dissolved. There remains the question, which was mainly argued at the bar, whether the judgment of the Court of Queen's Bench which shortly stated, declares that the Association has no right to act as a Cor- poration in respect of its most important operations within the Province of Quebec, and prohibiting it from so acting within the province, can be sustained. It was not disputed by the Counsel for the Attorney General that on the assumption that the Corporation was duly constituted, the prohibition was too wide, and embraced some matters which might be lawfully done in the province, but it was urged that the operations of the Company contravened the provincial law, at the least, in two respects, viz, in dealing in land, and in acting in con- travention of the Building Acts of the province. LEGISLATURE 511 I.EGISI.AT1TF. POWERS. It may be granted that, by the law of Quebec, corporations cannot acquire or hold lands without the consent of the Crown. This law was recognized by this Board, and held to apply to foreign corporations in the case of the Chaudiere Gold Mining Company v. Besbarats (L. E., 5 P. C 277). It ma}- also be assumed, for the purpose of this appeal, that the power to repeal or modify this law falls within ]S"o. 13 of Section 02 of the British North America Act, viz., " Property and Civil Rights within the Province, " and belongs exclusively to the Provincial Legislature; so that the Dominion Parliament could not confer powers on the comjjany to override it. But the powers found in the Act of Incorporation are not necessarily inconsistent with the provincial law of mortmain which does not absolutely prohibit corporations from acquiring or holding lands, but only requires, as a condition of their so doing, that they should have the consent of the Crown. If that consent be obtained, a corporation does not infringe the provincial law oi' mortmain by acquiring and holding lands. What the Act of Incor- poration has done is to create ii legal and artificial person with capacity to carry on certain kinds of business, which are defined, within a defined area viz, throughout the Dominion. Among other things, it has given to the Association power to deal in land anil buildings, but the capacity so given only enables it to acquire and hold land in any province consistently with the laws of that pro- vince relating to the acquisition and tenure of land. If the com- pany can so acquire and hold it, the Act of Incorporation gives it capacity to do so It is said, however, that the company has, in fact violated the law of the province by acquiring and holding land without having obtained the consent of the Crown. It may be so, but this is not the case made by the petition. Proceedings founded on the alleged violation by a corporation of the mortmain laws would involve an inquiry opening questions (some of which were touched upon in the arguments at the bar) regarding the scope and effect of these laws, the fact of the Crown's consent, the nature and sufficiency of the evidence of it, the consequences of a violation of the laws, and the proper parties to take advantage of it ; questions which are certainly not raised by the allegations and conclusions of this peti- tion. So with respect to the objections founded on the Acts of the Province with regard to building societies. Chief Justice Dorion appears to be of opinion that, inasmuch as the Legislature of the Province had passed Acts relating to such societies, and defined and limited their operations, the Dominion Parliament was incompet- ent to incorporate the present Association, having for one of its objects the erection of buildings throughout the Dominion. Their Lordships, at present, fail to see how the existence of those Pro- vincial Acts, if competently passed for local objects, can iniertcio with the power of the Dominion Parliament to incorporate the Association in question. If the Associaion by its operations has really infringed the Provincial Building Societies Acts, a proper remedy may doubtless '■S!" If ?? ■E I It II 512 LEGISLATURE I.EGI8I.ATIVE POTTERS. be found, adapted to such a violation of the provincial law ; but, as their Lordships have just observed, with reference to the suppoeed contravention of the mortmain Acts, that is not the case made hy the petition. It now becomes material to examine more closely than has hitherto- been done the allegations and conclusions the petition really con- tains. The first paragraph, after stating that the corporation carried on. its operations in Quebec exclusively, concludes thus : " the whole- without being legally incorporated or recognized. " The 2nd paragraph avers that the operations of the company being confined to Quebec, and being of a merely local nature, affecting property and civil rights in the province, " could not law- fully be incorporated except by the authority of the Legislature of the province. ' The 3rd paragraph alleges that, for these reasons, " the Act of" Incorporation is null and void, the said Act of Incorporation being ultra vires." The conclusion and prayer based on these allegations are, that, the Association be declared to be illegally incorporated, be declared ilissolved, and prohibited from acting in future as a corporation. It seems to their Lordships it would be a violation not only of the- ordinaiy rules of procedure, but of fair trial, to decide this appeaL upon u new case which assuming a lawful incorpoi'ation, rests on the supposed infringement of the laws of the province by the com- pany in conducting its operations. This is not the wrong struck at hy I he petition, but a wrong-doing raising issues of a wholly different character to those to which the allegations and conclusions of the- jwtition are alone directed and adapted. It is to be observed that the inquiries made of the company's Secretary were of a general nature, and mainly directed to support the allegation in the petition that the comjiany's operations had been limited to the Province of' (Quebec. No investigation of the title to any of the lands it held nor of any particular transaction, was gone into at the hearing. The 998th article of the Code of Civil Procedure requires that the^ summons to be issued "must" be preceded by a petition to the court containing " conclusions adapted to the nature of the con- travention, " to be supported by an affidavit; and provides that the summons cannot be issued upon such information without the au- thority of a Judge. It is quite plain that the conclusions of this petition are not adapted to the case now relied on by the Attornej^ General ; so that neither the general principle regulating procedure nor the special requirements of the Code allow of its being set ui>. on these proceedings. If the company is really holding property in (Quebec without having complied with the I'lw of that province, or is otherwise viol- ating the provincial law, there may be found proceedings applicable to such violation ; though it is not for their Lordships to anticipate them, or to indicate their form. It should be observed that their Lordships, in the case supposed in their judgment in the appeal of the Citizens Insurance Company, LEGISLATUEE 613 liEfilSIiATIVE POWERS. in regard to corporations created by the Dominion Parliament with power to hold land being subject to the law of mortmain existin^^ in any province in which they sought to acquire it, had not in view the speciallaw of any one province, nor the question whether the prohibition was alwolutc, or only in the absence of the Crown's consent. The object was merely to point out that a corporation could only exercise its powers subject to the law of the province, whatever it might be, in this respect. It was argued that the judgment of the Court of Queen's Bench might be sustained by the part of the prayer which asked that the company " bo prohibited from acting in future as a corporation within the Province of Quebec " for certain purposes. But the prohibition is asked as consequential upon the declarations prayed for, and when these are refused, there arc not only no declarations, but no allegations in the petition to sustain it. It has been seen that tlie prohibition contained in the judgment of the Court uf Queen's Bench is nor an injvmction limited to restraining the com- pany from doing specitied acts in violation of particular laws of the province, but is a general prohibition founded on a. declaration introduced by the court, other than those prayed for, that the company has no right to act as a corporation in dealing with lands and buildings, and certain other matters within the province. This declaration, with the prohil^ition founded on it, is obviously too extensive A prohibition in these wide and sweeping terms would prohibit the company from acquiring or dealing in lauds, though it had the Crown's consent, and could only bo warranted by affirming the invalidity of the Act of Incorporation, which would be opp(jsed to what has been stated in the previcjus part of this judgment to be their Lordships' view; or at least by affirming that the company in exercising its powers in the province, must neces- sarily violate provincial law which as already shown, is not a neces- sary consequence. In the result, their Lordships will humbl}- advise Her Majesty to reverse the judgment under appeal, and to order that the judgmeiii 3tions which have come uj) for juilicial discussion under those provisions of the Iiriti.sli North America Act (18(i7) Avhic apportion legislative powers between the parliament of the 1) >minioi and the legislatures of the provinces, it is undoubtedly a case ol great constitutional importance, a., the appellants' counsel earnestly impressed upon their Lordships. But questions of this class have been left for the decision of the ordinary courts of law, who must treat the provisions of the act in question by the same methods of construction and exposition which they applied to otlier statutes. A number of incorporated banks are resisting payment of a tax imposed by the legislature of (Quebec, and four of them are the present appellants. Dealing first with the case of tlie Bank of To- ronto, which was argued first, — in the year 1882 the Quebec legis- lature passed a statute intituled " An act to impose certain direct taxes on certain commercial corporations," by which it was enacted that every bank carrying on the business of banking in the Province, every insurance company accepting risks and transacting the business of insurance in the province, every incorporated company carrying on any lalxjr, trade or business in the province, and a I Qufbec, 1837 Jjly 9. L. R. XII Appeal Cases 575. LEfMSLATrJfK :>2l I.RCiiai.ATIVR POWKKN. irimbcr oi other si)oi'itio(l compnnioi^, nhonld annually pay Iho Hcvoral (axc'H thereby implace of buinnesn in at Toronto, but it has an agency at Montreal. Its capital is said to be kept at Toronto, from whence are transmitted the funds necessary to carrj- on the busincsH at Montreal. The amount of its cajiital at ])resent belonging to persons resident in the ])rovincc of(iuebcc, and the amount disposable for the Montreal agency, arc roHjjectivoly much less than tlie amount disposalile elsewhere. Th(^ bank resisted payment of the tax in ([uestion on the (ground that the Quebec legislature had no power to pass the statute which imposed it, Mr. Justice Kainvi lie, sitting in the Superior Court, took that view, and dismissed an action brought by the government officer, who is the present respondent. The Court of Queen's Bench, by a majority of three judges to two. took the contrary view, and gave the then appellant (the present res]iondent) a decree. The case comes on appeal from that decree of the (lourt of (Queen's Bench, The principal grounds on which the Su]>erior Court rested this juilgment are as follows : — That the lax was an indirect one ; that it was not imposed within tiie limits of the province; that the jiarlia- ment had exclusive power to regulate banks ; that the provincial legislature could tax only that which existed by their authority, or was introduced by their permission; and that if the power to tax such banks as this existed, they would be crushed by it and so the power of the parliament to create them w(juld be nullified. The grounds stated in the decree of the Queen's Bench are two, viz : That the fax was direct, and that [* was also a matter of a merely local or private nature in the province, and so fell within clause Hi of provincial legislation. It was contended at the bar that the provincial legislature could tax only that which existed on their authority or permission, and when the appellants' counsel were proceeding to argue that the tax did not fall within clause 16, their Lord.ships intimated that they would prefer to Jiciir first what could l)e said in favour of the opposite view. All the her grounds had been argued very fully and very ably at the bar. To ascertain whether or not the tax was lawfully imjjosed, it will be best to follow the method of inquiry adopted in other cases. First, does it fall within the description of taxation allowed by class 2 of section 42 of the Federation act, viz : "Direct taxation Avithin th<' province in order to the raising of a revenue for provincial pur- ])0 s?" Secondly, if it does, are we compelled by anything in sec- tion 91, or in the other parts of the act, eo to cut down the full meaning of the words of section 92 that they should not cover this tax? First, is this tax a direct tax? For the argument of this question the opinions of a great many writers on political economy were cited; and it is quite proper — or, rather, necessary— to have careful regard to such opinions. But it must not be forgotten that the question is a 522 LEGISLATURE ii^ , v^ ( ; •I I' {i i H I.EOISI.ATIVE POWERS. legal one, viz., what the words mean as used in this statute ; whereas- economists were always seeking to trace the effect of taxation, throughout the community, and were apt to use the words "direct " and " indirect " according as they found the burden of a tax abided more or less with the person who first paid it. This distinction was illustrated very clearly by quotations from a very able and clear thinker, the late Mr. Fawcett, who, after giving thV: test of direct and indirect taxation, made remarks to the effect that a tax may be made direct or indirect by the position of the taxpayerh or by private^ bargains about its payment. Doubtless, such remarks have their value in an economical discussion. Probably it is tri'e of every in- direct tax that some persons are both the first and the final payers of it; and of every direct tax that it affects persons other than the first payers ; and the excellence of an economist's definition will be- measured by the accuracy with which it contemplates and embraces every incident of the thing defined. But that very excellence impairs its value for the purposes of the lawyer. The legislature cannot possibly have meant to give a power of taxation valid or invalid ac- cording to its actual results in particular cases. It must have con- templated some tangible dividing lino referable to and ascertainabi<»- by the general tendencies of the tax and the common understandings of men as to those tendencies. After some consideration, Mr. Kerr chose the definition of Jo^k Stuart Mill as the one he would prefer to abide by. That definition is as follows : " Taxes are either direct or indirect. A direct tax is one which is demanded from the very person who it is intended or desired should pay it. Indirect taxes are those which are demanded, from one person in the expectation and intention that he shall in- demnify himself at the expense of another ; such are the excise or customs. The producer or importer of a commodity is called upon to pay a tax on it, not with the intention to levy a particular con- tribution upon him, but to tax through him the consumers of the commodity, from whom it is supposed that he will recover th& amount by means of an advance in price." It was said that Mill added a term, that to be strictly direct a tax must be general ; and this condition was much pressed at the bar.. Their Lordships have not thought it necessary to examine Mill's work for the purpose of ascertaining precisely what he does say on this point; nor would they presume to say whether for economical pur- ])0ses such a condition is sound or unsound ; but they have no hesita- tion in rejecting it for legal purposes. It would deny the character of a direct tax to the income tax of this country, which is always s])oken of as such, and is genei-ally looked upon as a direct tax of the most obvious kind ; and it would run counter to the common understanding of men on this subject, which is one main clue to the meaning of the legislature. Their Lordships would take Mill's definition above quolod as a fair basis for testing the character of the tax in question, not only be- cause it is chosen by the a])pellants' counsel, nor only because it is that of a eminent writer, nor with the intention that it should be considered a binding legal definition, !)ut because it seems to them, LEGISLATUEE 623 LEOICLATIVK POWERS. to embody with suflBcient accuracy for this purpose an understand- ing of the most obvious indicia of dii'ect and indirect taxation, wliicli was a common understanding, and was likel}' to have been present to the minds of those who passed the Federal Act. Now whether the prooabilities of the case or the frame of the (Quebec Act are considered, it appears to their Lordships that tlie (Quebec legislature must have intended and desired that the vcrj' corporations from whom the tax is o felt all over the Dominion, but whatever power falls within the legitimate meaning of (,'lasses 2 and 9 is in their Lordships' judg- ment what the Imperial Parliament intended to give; and to jjlace a limit on it because the power might be used unwisely, as all powers miglit. would be an error and would lead to insuperable difficulties in the construction of the federation act. Their Lordships were invited to take a wide range of this part of the case, and to apply to the construction of the Federation Act the l)rincipies laid down for the United States by Chief Justice Marshall. Every one would gladlj' accept the guidance of that great judge in a l)ara!!c! case, but he was dealing with the constitution of the United States. O'nder that constitution, as their Lordshijis understand, i-ach Slate could make laws for itself uncontrolled by the Federal l)ower, and subject oidy to tlu^ limits placed by law on the range of subjects within its jurisdiction. In such a constitution Chief Justice Marshall found one of those Umits at the point at which the action 77" '".I "' 526 I every superior court of law of less dignity undoubtedly than itself? " Xow, if Ave apply that principle to this legislative body, which appears to possess supreme legislative authority over the whole of the island and its dependencies, we must iu like manner say, that they have incidentally the power not only of punishing direct impe- diments to their proceedings, but indirect obstructions, such as are caused by libels reflecting on their conduct, and tending to bring their authority into contempt, and that independently of any pre- cedent for its exercise. Kiel LET v, Cabson et al ' 42. The above dootriue established iu Beaumont v. Barrett was modified iu this case, where the Judicial Committee held that a House of Assembly iu a settled colony does uot possess, as a legal iucident, the power of arrest, with a view of ad.judioatiou on a ooutem^jt 1 Newfoundlnnd, 1842 May 23, IV iVoore63. 34 ;lf^ 1 1 2" ' l 1 1 > 1 i 1 i' ,1 ■■■■ ? Hf 530 LKGLSLATURE POWF.R OF PlINMiHINO CONTEMPTS. committed out of the assembly, although the House pos- sesses such powers as are reasonably necessary for the proper exercise of its fuuctious aud duties and the protec- tion against all impediments to the due course of its pro- ceedings. 43. Their Lordships in rendering the judgment in this appeal declared that they did not consider the case of Beaumont v. Barrett as one by which they ought to be ^ound in deciding the present question. The opinion of their Lordships in this latter case was delivered imme- diately after the argument was closed. Aud although it clearly expressed that the power of punishing contempts ■\vas incidental to every legislative assembly, this "was not the only ground on wnich that judgment was rested, and therefore, was in some degree extra-judicial. Besides, it was stated to be and was founded entirely on the dictum of Lord Ellenborough in Burdett v. Abbott,^ which dictum they all think could not be taken as an authority for the abstract proposi- tion, that every legislative body has the power of commit- ting for contempt. The observation was made by the judge who delivered the judgment, with reference to the peculiar powers of parliament, but ought not to be extended any further. Mr. Earon Pahke, p. 88 : — The whole question then is reduced to this, Avhcther by law, the power of committing for a contempt, not in tlio presence of the assembly, is incident to every local legis- lature. The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent. Their Lordships see no reason to think, that in the 2)rinciple of the Common Law, any other jwwers are given them, than such as are necessary to the existence of such a body, and the proper exer- cise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the crown to per- form. This is the principle which governs all legal incidents. " Quando lex aliquid concedit, eoncedere videtur et illud ,sine quo res ipsa esse non potest." In conformity to this jjrinciple we feel no doubt that such an assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every moasu.o which it may be really necessary to adopt, to secure the free exercise of their legislative functions, they are justiticd in acting by the principle of the common law. But the power of punishing any one for past misconduct as a contempt of its authoritj^, and adjudicating upon the fact of such contempt, and the 1 14 Eaat 137. i ft 3 I LKGISLATUEE m POWER OF PIT9ri!lication, a general ])0\ver of punishinir and committinir for contempts, notwithstandi. propor oxorciso oft lu^ funct ions wliieli i( is iiitoiidod to oxocutc? It is nocesHtiry to (lislini^iiisii in'twccn a powi'i' to pimisli for a contoinpt, wliicli is a Jiulicial ])o\vi'r, and a ])o\v('r to roinove any oliKtniction otl'oroil to tiio dclilicrations or |)ro])or acdion ofa Icgislativo jjody durinjj; its sitting, wiiifli last powor in necessary lor selt'-preservation. If a nicnilier of a (Colonial House of AsHonihly is f,Miilty of disorderly eondiict in the House whilst sittinj,', he may he removed, or exeluded for a time, or even expelled ; hut there is a ;^reat ditlerenee hctween such powers and the Judicial iiowei'ofin- Hictinj; a penal sentence for the offence. The right to remove for self-security is one Ihinj,', the right to inflict punislmient is another. The I'ormer is, in their riordshi))'H judgment, all that is warranted lpy the legal maxim that has heen cited, but the latter is not its legitimate consequence. To the question, therefore, on which this case depends, their Lordships must answer in the negative, if the good sense and conduct of the memhers of colonial legislatures l)r()ve,as in the present case, insufficient to secure order and decency of dehate. the law would sanction the use of that degree of force winch might he necessary to remove the ])erson otlendiiig from the place of meeting, and lo kec)) him excluded. The same rule woidd apply, a fortiori, to oh.^t ructions caused hy any person not amemher. And whenever the violation of order amounts to a breach of the peace or other legal offence, recourse may be had to the ordinary tribunals. Jt nui}' be said that the dignity of an assembly exercising supremo legislative authority in n colony, however small, and the importance of its functions, require more efficient protection than that winch has JusI been indicated ; that it is unseemly or inconvenient to subject the proceedings of such a body to examination by the local tribunals, and that it is but reasonable to concede to it a power which belongs to every inferior Court of llecord. On the other hand, it may bo urged, with at least eciual force, that the power contended for is of a high and peculiar character; that it is in dero- gation of the liberty of the subject, and carries with it the anomaly of making those who exercise it judges in their own cause, and judges from whom there is no ajipeal ; and that if it may be safel}* entrusted to magistrates, who would all bo personally res|)onsiblo for any abuse of it to some higher authoritj , it might be very dangerous in the hands of a body which, from its very constitution, is practically irresponsible. Their Lordships, however, are not at liberty to deal with con- siderations of this kind. There may or may not be good reasons for giving by ex])ress grant to such an as.^embly as this, ])rivileges beyond those which are legalU' and essentially incident to it. In the present instance, this might havo been done by the inst riiment creating tiie assembly, since Dominica was a conquered or ceded colony, and the introduction of the law of J'higland seems to have been contemporaneous with the creation of the assembly. It may also be possible to enlarge the existing ]iriviloges of the assembly by an act of the local legislature, passeil with the consent of the crown, since such an act seems to be within the 3rd section of the recent II LKGISIiATURK M:> POWKH OF ITNINHINO «'OKTKMPTN. Mtiitutt", 2Htli ami 2!ttli Vict., cli. (>.'{. That oxtraordiiiary |)rivilo;,'i'.H of this idi\d, whoii roqiilarly ucniiirod, will ho duly ri'cu^fiii/.i'd hori', iw nhown hy tho recent case of Dill v. Murjihi/. ' Hut thiir LordKhipK, Hittinj^ iiH a court of JuHtico, have to consider not what privileges tho llouso of AssoniMy of iJoniinica ought to have, hut what hy law it has. In order to ostahlish that the particidar j)ower claimed is one of those privileges, the ajjoellants must show that it is essential to tho existence of the assembly, an incident " sine i/ui> res ipsa esse non potest." Their Lordships are of opinion that it is not wuch an incident. The Si'KAKEii OF the LEaiHLATiVE Assembly ok VtcTOKtA V. Glass ' 49. The appellant having lieing det'larod by the House of Assembly of Victoria to havt; committed a <;ontempt and breach of privilege, "Nvas arrested nnder the Si)eaker'8 war- rant, which was in general terms, without specifying any specific oilence. He was afterwards set free by the Supreme court in the colony on the ground that the consti- tution did not confer upon the legislative assembly the same powers, privileges, and immunities as are possessed by the House of Commons, although the constitution Act gave power to the assembly to commit by a general warrant for contempt and breach of privilege of that assembly. 50. Thfc Judicial Committee held that the constitution Act gave to the assembly the same powers and privileges as the Hoixse of Commons had at the time of the passing of the said Act ; and, that, incident to those powers and privileges, there was vested in the legislative assembly the right of judging for itself Avhat constituted a contempt, and of ordering the commitment to prison of persons adjudged by the House to have been guilty of a contempt and breach of privilege, by a general warrant, without setting forth the specific grounds of such commitment. Lord Cairns, p. 465 : — Beyond all doubt, one of tho ])rivilcgcs and one of tho most important privileges of tho House of Commons is the privilege of committing for contempt ; and incidental to that privilege, it has, as has already been stated been well established in this country that the House of Commons have tho right to bo the judges themselves of what is contempt, and to commit for that con- tempt by a warrant, stating that the commitment is for contempt of the liouso generall}', without specifying what tho character of tho contempt is. It would, therefore, almost of necessity follow, that the Legislature of the colony having been permitted to carry over to tho colony the privileges and powers of the llouso of Com- 1 Moore's P. C. \. S. 487. 2 Victoria, 1871 Jan. 31, VII Moore X. S. 4-19. ^an LEGISLATURE * POWER OF PVXISIIIXG COXTEMrTS. mon.s, iind having in terms ciirriod over all the privileges and powers exercised hy the lIou>e of Commons at the date ot' the statute, there was carried over to the Legishitive Ai-.cnibly of the colony the privilege or power of the House of Commons connected with con- tempt, the privilege or power, namely, of committing for contempt, of judging itself of what is contempt, and of committing for con- tempt by a warrant stating generalh' that a contempt had taken ]ilace. It has, however, been argued before us that the privilege is the privilege of committing for contempt merely ; that the judging of contempt Avilhout appearand the power of committing by a general warrant, are mere incidents or accidents ap])licab!e to this country, and not transferred to the colony. Their Lordships are entirely unable to accede to this argument. They consider that there is an essential dilf'erence between a ]U'i- vilege of committing for contempt such as would be enjoyed by an infer or court, namel}-, privilege of tirst determining for itself what is contempt, then of stating the character of the contempt upon a warrant, and then of having that warrant subjected to review by some superior tribunal, and running the chance whether that superior tribunal will agree or disagree with the determination of the inferior court, and the privilege of a body which determines for itself, without review, what is contem])t, and acting upon the determina- tion, cir James Colville, when delivering the judgment of tribunal in Doyle v. Falconer, ' and their Lordships adopt them P. 204 : — The princii)lo on ^vhich the implied power is given con- tines it within the limits of whi.t is re(|Uired liy the assumed neces- sity. That necessity appears to tlieir Lordships to extend as far as the whole duration of the particular meeting or sitting of the assem- l)ly in the course of which the otronce may liave been committed. It seems to be reasonably neces.sary that some substantial interval should be interposed between the suspensory resolution and the re- sumption of his 2)lace in the assembly by the offender, in order to 1 L. R. 1 P. C. 328 538 LEGISLATURE i POWER OF SimPRWNION. ,u;ivc opportunity for the subsidenco of licut iirul passion, and for re- flection on his own conduct bj' the jierson susjM'uded ; nor would anytliiiii!,- less l»o generally sufticient for the vindication of the autli( )rit y and d iu'iii ty of t he assem hly The ])ower, therefore, of siisjiendinii; a mtiniher guilty of olistruetioii or disorderly conduct during the continuance of any current sitting, is, in Iheii" Lordshi])s' Judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assomlijy of this kind;, and it may very well be, that the same doctrine fif reasonable neces- sity would authorize a suspension until suiimission oi- apology by the otiending member, which, if he were refractory, might cause it to be prolonged (not bj- the arbitrary discretion of the assembly, but by his own wilful defiiult) for some further time. J f these are the limits of the inherent or implied power, reasonably deducible from the princi])le of general necessity, they have the advantage of drawing a simple practical line between defensive and punitive action on the ])art of the assembly. A power of unconditioiuil sus- ]iension, for an indetinite time, or for a detinite time dei)ending only on the irresponsible discretion of the asseml)ly itself, is more than the necessity of self-defence seems to require, and is dangerously liable, in possible cases, to excess or abuse. LEGITIMATION OF t;iiiM>RE^\ Set' Filiation, Marriaoe : iis/ieni verbis. LESSOR AND LESSEE OESTnt'CTIOX OF PItEMI!«E.S. CoCNTER V. MaCI'IIRHSON ' 53. An agreement was made by Avhich a laucllord Avas- to mak(^ certain repairs to a store already occupied by his. tenant and to build for his use a warehouse ; all to be ready at a certain date, viz., the first of April 1840 ; and then the tenant was to sign a lease of them for five years. On the first of April 1840, the repairs were not finished and the warehouse was half done, but the tenant waived his right to have the agreement set aside, and consented to wait until the works should be at an end. But on the 18th of April the premises were accidentally destroyed by fire. The landlord took an action for specific performance of the agreement, and to compel the defendant to rebuild the premises and sign a lease for five years. The tenant contended that he could not be forced to take a lease under the circumstances, and that he was not responsible for the- accident. The action was maintained in the court for first instance, dismissed in appeal ; and this last judgment was confirmed ])y the Judicial Committee. 1 V\i\tvr Canada, 184,') Feb. 12. V .Moore H3. LESSOll AND LKSSEE 639 DISTRKNS F4IK »fr:%'T. Eailton v. Wood ' 54. Ill New South Wales, under the lusolveut Act, 5 Virt., No. 17, s. 41, no distress lor rent can be levied or proceeded in ai'ter any order in insolvency has been made, but the ision only applies to a distress upon goods forming part ol the insolvent assets. 55. It was held that this prohibition does not authorize the purchaser of t he voods, under a b!U of sale anterior to the distress, to take them out of the hands of the landlord's bailitf who had impounded and made an inventory of them. See Statute : comtniction, same cause. IMPROVE.IIKNTM JTaAOK BY I.i:.MSEE. Pmm.mku v. Mayor, councillors and citizens OK THE CITY OF WELLINGTON ^ 5(1. The appellant, lessee of a piece of laud from the government, with the j)crmission and encouragement of this latter, had built a wharf and jetty on it, which the government had used in common with the appellant. The land having been transferred to the respondent, it was held that the appellant was entitled to compensation. 57. The princi])le apjilied was thus laid down from a citation of Lord Kingsdown, m Ramsden v. Di/son, Laio Re/i., 3 //. L. 12!t : — " If a man, under a verbal agreement with a Umdlord for a certain interest in land, or, what amounts to the same thing, ixnder an expectation created or encouraged by the landlord that h'- shall have a certain interest, takes possession of such land with the consent of the landlord, anri upoji the I'aith of su'li promise or expectation, with the knowledge of the landlorh promise or expecta- tions.'" (h-e^orij X. Migiiell, 18 I Vs. 828; Pilling- v. Armitage, 12 Ves. IS] Duke of Beau for I v. Patrick, 17 Beav. 60 ; Dilhoyn v. Llevelijn, 4 D. F. ^-J. 517 ; Vnili/ Buuk v. King, 25 Beuv. 72 ; Winter v. Brockwe/l, 8 East 308 ; Lii^gins v. Jtige, 7 Bing 682. KKJiiT TO (ii^%RKY> See Pkoi^rietou : iisdem verbis. KidiiiT or TEXAXT i.\ s.».i,E. Scc Sale ! Usdem verbis. 3iUM.ITY or LETT1':R8 I'ATENT r.A I?AN(}1K D'llorHKI.AlSA V. MlKRAV ET .\L '' 58. Letters patent cannot be partially annulled and par- 1 New SoiiUi WiiU-g, 1890 Juno 2H, h. R. XV Appeiil Cases 363. 2 Xcw /.mlaiul, lS8t Juiit' 2."), L R IX Appciil Oases i)!)9. 3 Qiiebef, 1800 Jiiiie 25, L. 11. XV 414. .l^p*' 540 LETTEES PATENT i ill SrUM,lTY OF tially maiutaiued ; if part is uull, the whole letters patent will be set aside, notwithstanding that in the conclusion of the declaration the plaintiff prayed that they might be an- nulled and set aside at least in so far as they were concerned. 59. Where letters patent have been obtained under false pretences, and the names of persons have been inserted iu the petition without their consent, the letters patent will ])e ammlled under article 1U34 C. C. P. Sir Barnes PE.vcr)CK, p. 425 : — Their Lordships concur Avitb the niajority of the Judges of the Court of 'ihu't'ii's Bench in their find- ings of fact, as stated in their reasons. From these it appears tliat the defendants were never organized as shareliolders, and tliat no allotment of stock was ever made to them; that thej' had jtroposed the formation of a Joint Stock CVjmpanv, which, liowever, was only to be ])Ut into operation on certain conditions, unci especially that of obtaining a Government subsidy, without which it was distinctly understood that the company should not be formed ; that the condi- tions not being fultilled, they abandoned tlie project, and their names were never entered in the list of shareholders ; tliat the bank did not lend money on their names, and was. therefore, in no respect led astraj- Ijy the fact that their names were used without their jiermis- sion ; and furthermore, that the ])romoters auquiebcctl in The with- drawal of the defendants, and at a later period formally approvetl thereof, and that from the time of their severance from the project the defendants ceased to be considered or even reputetl to be sub- scribers to the undertaking; that they were never notitied of any further proceedings, nor were tliey ever required to paj* any call ; that the}' took no part in any further proceedings, ami that their names were never entered in the stock ledger, nor in any book ]»ur- porting to be kept in conformity with Section 32 of the Statute of (Quebec, 31 Vict., ca]). 25. Their Lordships are of o])inion that the names of the defendants were fraudulently inserted in the petition for the letters jiatent witliout their sanction t)r authority, and that the solemn declaration (if Gerhard Lomer verifying that petition was false. There was thercfbro no ground for nudving them liable except the statements in the letters patent. By article 1034 of the Code of Civil Procedure for the province of (Quebec, it is declared that any letters patent granted b}' the crown may be declared null and be repealed by the Superior Court: — (1) where such letters ]iatent were obtained by means of some frau- dulent suggestion, or (2j where they have been granted by mistake or in ignorance of some material fact. By article 1035. all demands for annulling letters patent may lie made by suits in the ordinary form or by scire facias upon inibrma- tion brought by Iler Majesty's Attorney General or Solicitor General, :i'>n. Hn- Majoty''^ Annnuy (Jeneral for the I'l'uviuce ot' Quebec, acting on behalf lyf Jier ^[ajcNty, has by a recital in the information declared it to be his duty to protect the defendants against the unauthorized and fraudu- lent iiieorporation of them in tlie letters patent, and against the 'i9» 542 LETTERS PATENT i#r V . . . 1 1 SULMTT OP fnuKhilent unci mistaken issue of the suid letters patent, ])urpnrting to in<'or])orute them with others as shareholders in the said Pioneer J3eetr<' I ,Siij:;ar Company; and he has, in the opinion of their Loi'd- ships, ])rayi'd on hehalf of Her Majfsty to have the letters patent declared fraudulent, null, and void. Their Lord^hijis havini:; decided that the letters patent cannot be ])artially aiumlled, are hound to advise Her Majesty to order that tliey be entirely annulled, and to iimend the judiftnent of the Court of (Queen's Bench, on the informa- tion for the wrii oi scire facias, in accordance with that view. The letters patent being- annulled, there is an end of the actions at the suit of the bank and of the interveners against the defendants jis sluircholders in the incorporated company. They are not liable to be sued as shareholders of the company in consequence of tlie return oi nulla I/ana by the Shcrilf to the writ of execution issued u])on the judgnient recovered by the bank i'gainst the company as incorporated b}' lue letters patent. Their Lordships will liumi)ly advise Her Majesty to amend the judgment of the Court of (Queen's Bench on the information for the writ of scire facias, by ordei-ing the letters patent t<> be entirely re- ])ealed, cancelled, and annulled, instead of ordering them to bo par- tially annulled and repealed as therein specified, and to order the said judgment to be affirmed in all other resj)ects. Also to affirm the judgment of the Court of Queen's Bench in the several consolidated actions, including *hose portions of the said judgment Avhich relate to the interventions, and tlie interveners. The appellants must pay the costs of this appeal. See Patents, PK1VII.KOK. LIBEL Bank ok Hurri.su Xuktu Americ.v v. Strom 60. Allegations in an allidavit lor capias are privileged, and will not support an action lor libel unless falsity and express malice are proved. Davis et al v. Shei'sthne ^ 61. The p"iuciple that the acknowledged or proved acts ol' a pnblic man may lawfully be made tlii^ subject of fair com- ment or criticism does not extend to allegations of particular acts of misconduct said to have been committed by him. Defamatory matter thus published is not the subject of any privilege. 62. Statements made to a reporter in the employment of the proprietor of a newsi)aper, for the purposes of the news- paper, are not privileged. 63. In an action to recover damages for libel, it appeared that the appellants had in tlieir newspaper falsely charged the respondent, a public oilicer. with specific acts of inis- 1 New iiruriswick, 187G Feb. 10, L. R. 1 Appeal Oases 307. 2 XiitiU, 1880 .\farcli 5, L. R. XI Appeal Cases 187. LIBKL 543 pkivim:ishop of Natal, and by him transmitted to the appellants, or t •> statements made to a reporter in the emphr, if the appellants, who, for the ]1M^,v,v.,^^s of the newspaper, sought an inter- view witl, messengcfs oi\ their way to lay ii complaint lutore ilic governoi'. Tiie language used by the learned judge in summing up the present case to the jury is op^'u to some criticism, and does not contain so clear and complete an exposition of the law as might be desired. But, in their Lordshi]is' o[)inion, so far as it erred, it erred in being loo favorable to the appellants, and it is not open to any complaint on thcli part, 'fhe only (picNtion dial i-.niain-- i-- as to the amount of damages. The a^^-cssment of those is pcciUiai'ly the province of the juiy in an action of libel. The damages in such an action are not limited to the amount of pecuniary loss which the plaintiff is able to jjrove. And their Lordshij)s sec no reason for saying \r- '■ 544 LIBEL i 1>RIV1I.E«E. , that tho daraugos awarded wore excessive, or for interfering with the finding of ihc jury in this respect. They will, therefore, humbly advise her Majesty that the judgment appealed against should be aflBrmed and the appeal dismissed with costs. See Evidence: eodem verbo. LICENSE See Crown LAND.*?, Legislature. LIEN See AfFKEioiiMENT. Bottomry and Respondentia, Collision, Meii- ciiANT SiiiPPiNU, Principal and Agent, Privileoe. LIEUTENANT GOVERNOR See Governor. LIFE RENTS See Annuity : confusion b// marriage. LIMITATION See Prescription. LIQUORS LEGISLATION OX. See Legislature : legislative poivers : tem- perance, license. LIS PENDENS See Practice : eodem verbo M SUMMARY PAGE MANAGER Powers of Manaobhs. See Bank and Banking : iisdem verbis. MASTER AND SERVANT Rebponsiiiility OF' 545 MANDAMUS FOBM OP THE WRIT 547 MANDATE See Principal and aoent. MARGUILLIERS See FAnniquB. MARRIAGE Jn extremis 549 Lex loci ■■ 550 Legitimation ok ciiilduen 551 Presumption op 551 Rights and liarilities op married women 551 Separation. See Separation. Validity op 556 Validity ok .mahhiaok hetwebn two PROTESTANTS AIUOUING TIlBIll PAITII and HKCOMINO CATHOLICS... 557 MERCHANT SHIPPING Construction of Merchant Ship- ping Act 558 Duties and liabilities op owners, masters or pilots 560 IjIEN ON SHIPS 566 Cieneral average 567 Registration op ships 567 Sale op ship nv master 563 Transfer ok British ship 570 Renewal of pilot's license 570 Ship's license 570 MINORITY Civil status and religion op minors 570 Family council 571 Sale of minors' property 571 Suits IN minors' name 577 MORTGAGE See Hypothec MORTMAIN In British Honduras 577 MUNICIPAIi COUNCIL See Corporation (Municipal). MANAGER powKKH OF MANAGERS. See Bank AND Bankino : iisdem verbis. MASTER AND SERVANT responsibility of Serend.vt v. S.\isse ' 1. Masters aiid employers are respousible, iiiider article 1384 of the Code Napoleon, for damage occasioned by the negligence of their servants or workmen (preposes), but it is necessary, in order that they should be liable, to 1 Mauritius, 1866 Feb. 15, III Moore N. S. 534. 35 nK! MA ST Kit AND SWIVANT ItlOKPO.MNIIIII.lTY OF «8t;il)li!sh that they wore aotiug '' sous les ordres, sous fa (lireiiion el la surueillnnce Uii maitre ou ilu roinmellanf." 2. " Pre/iose" in article 1384, means a person who stands in the same rehition to the " com met I nut" an " i/omesHrjiie" does to " Diattre,'' namely, a person whom the '' coinni'llant " has instructed to perform certain things on his behalf. 8. A proprietor hired (;ertaiji Indians, who were the heads of gangs of labourers, to dear a piece of land of weeds and brushwood at a job price, to be paid to their gangs. Through the negligence of the persons employed, the sparks of a Hre kindled on the land, set fire to and burnt down a housi' in the immediate neighbourhood. It was proved in evidence that the proprietor interfered with the work, and directed the Indians where to work. The proprietor was l)y the Privy Council held responsible as coiumeltuid for the negli- gence of the labourers his '' /jr eposes.'^ Siu KuwAKi) Vauoiian Wimjams, p. 551 : — Tlie only question, thorufore, which remains i», wliether the iijuieMant wu.s rcsjionisiliic for the negligence of the men so employed by him. The respondent grounded his claim on the art. 138-1 of the Code NapoUon (which is the prevailing law of Mauritius) and which is in iYmaa words : " Les mattrcs et commcttants (sont responsdhli's) du dommaye cauni par leurs domestiques et prdposds dans les fomi ions aux- quelles ils les ont employes." The respondent contended that the appellant and the men he em- ployed stood in the relation of rommettant and priposd within the meaning of this article. It is necessary, therefore, to ascertain what is the meaning of the word "prdposi." It a})pcars from Napo- Uon Landais dictionary that the meaning of the word " prdposi " is ■' qui est commis il quelquc chose, qui en a la (jarde, le soiii ; " and in the same book the meaning ascribetl to the verb "preposer" is, " commcttre. dfablir quclqu'un aver pouvoir de faire quelquc chose ou d'en pjroidre soin." And accordingly we think that, subject to the quaiitication hereafter to be mentioned, the word " prdposd " in the iirticle means substantially a person who stands in the same relation to " commettant" as " domestique" does to '^maitre" i. e., a person whom the " commettant" entrusted to perform certain things on his behalf. This construction of the word appears to be supported by a passage in Ballos' Rip. Tom. XX.YIX, p. 44(1, No. G8!J, where he saj's, "Xes domestiques sent une classe particuliere de priposis.' The French lawyers, however, in their interpretation of the article, have qualified the above construction by the doctrine that in order to make the commettant responsible for the negligence of the priposi, the latter must be acting " sous les ordres, sous la direc- tion et la surveillance du commettant." This doctrine is certainly supported by the French authorities to which we were referred by the counsel for the appellant, viz: — Dalloz Repertoire, tit. " Respon- sabilitd," ch. Ill, sect. 2, article 5, and the three cases of Teston v. MASTI':il AND SimVANT m la RENPO^TNiniMTV OF Sailer dud the Minimj Compdni/ of the Gram/, (■omhc ; and The iVorthtrn Jiailuuii/ of France v. lioisseau ; ami Adtninistrtition of Forests \. Martin ; wliii'li were lU'cifU'd by the Cour de (.'assatiun, ami are cited in Dalln: " Jiiris/irudenie i/6iUrale," cujiics ol' whiuli wcru HUppiied to uw by counsel. MANDAMUS FOnn OP THE WIIIT. Huow.v V. IjKs Ciaifi et MARdcn.MEiis dk r-'(ErvuK ET FaBRIQL'E UK NoTHE-DaME tie MoNTllfeAl, ' 4. AiTordiug to the Code of Civil Procedure, thert; is no speeiai i'orrai'ora writ oi mandamus, aud the court may make the order for the peremptory writ, after judgment has been rendered on the originul jietitiou. in the same man- ner as the court in Enghmd may make the rule for a, mandamus. 0. A phiintifF may generally obtain a judgment for less than that for which he asks, and for relief in a more distinct and specific form than that for which he has prayed, pro- vided it is within the scope of the prayer. 6. A writ of summons which in substance called upon the defendants, the Cure et Mnri^ui/iiers of a Fabrique, to show caiTse why a writ of mandamus should not be issued, directing them tc do a speiified thing is sufficient for the issue of the writ of mandamus. Sir Eobeht Philimore, p. 201 : — The questions of t'orni, whicJi are not unimportant, may be disposed of before the graver questions which arise out of the third plea are considered. Ami tirst, is the mandamus bad upon the ground of uncertainty, or u]jon any other ground? Their Lordships arc of opinion that the writ was in proper I'orni according to the Code of Procedure for Lower Canada; the pro- cedure therein pointed out, though called a mandamus, was not a writ of mandamus in the tirst instance, but, in ett'ect, a summons to answer a petition prayins? for an ordar upon the defeudanis to do certain specified acts. The tirst thing to be done b^' the De- fendants was not, as in tlie case of a writ of mandamus in England, to make a return to the writ, but to appear to the summons, an(l plead to the petition. The sections of the Code of Procedure bearing upon this point are 1023, 1024 and 1025. Article 1023 evidently contemplates a writ of summons. It says the application is made by petition, supported by alfidavits setting forth the facts of the case presented to the Court or a Judge, who may thereupon order the writ to issue, clearly meaning a writ of suinnious, lur it, goes on, " and such writ is served in the same manner as any other writ of summons." This is rendered more clear by article 1024, which 1 Quebec, 1874 Nov. 21, L. R. VI P. C. 167. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 If'ssi I.I 2.5 •^^ 140 22 2.0 1.8 L25 114 11.6 >i V Hiotographic Sciences Corporation 23 WeST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 ^ ^^ 'ii. fi48 MANDAMUS I I FORn OF TIIR WRIT. directs tlio subsequent procowlings to bo had in accordance with the provisions of the first chapter of that section. That roferBto articles from 007 to 1002, both inclusive; which, in cases similar to our quo warranto, require an information to bo presented to the Court or n .ludfje, supported by affidavits, upon which the issue of a writ of summons may be ordered. The writ of summonM commands ap- penranco u])on a d..y fixed, and is to be served in tho manner pointed out. The defendants are to appear on the day fixed (article 1011), and to plead specially to the information (article 1012). In the case of mandamus under the Code, therefore, tho parties are not to make a return to the summons; the pleadings are to commence with a ])loa to the petition, and not a plea to tho return to the writ. In our opinion, therefore, the objection to tho writ, so far as it related to its being a mere writ of summons, and not a writ of mandamus was untenable, and tho practice of tho court in tiiis ros- jiect, which has always l)cen ad()])ted, is in compliance with the directions of tho CchIc. The other technical objections to the writ have no substantial foundation. Three of tho Judges of tho Court of Queen's Bench bold that (he writ was correct in j)oint of form, although (me of them, Mr. Justice Badgley, being of o])inion that tho writ asked for too much, held that u peremptory writ could not issue commanding the defendants to do the ono thing onlj', viz., to l)urv, which, according to this view, they were legally bound to do. The procedure therefore requiring a petition and plea to the petition, it appears to follow that tho applicant for tho writ is not so strictly bound by the ])raver of his petition as he is in this country to the command contained in tho first writ of mandamus, and that the court may mould the order for tho peremptory writ in tho same manner as the court hero may mould tho rule for a mandamus There being no rule which requires a peremptory writ of mandamus to be granted in the precise terms of tho first writ, it seems to follow that the general rule rpplicablo to pleadings, either in equity or at common law, may be acted upon. According to them, a Plaintiff may generally obtain a decree for loss than for which ho asks, and for relief in more distinct and specific form that for which ho has prayed, provided it is within tho scope of tho prayer. In tho present case tho prayer of tho petition was that the de- fondants might be commanded to bury or cause to be buried tho bodj- of tho deceased Joseph Guibord, in tho Roman Catholic Cemetery, conformably to usage and law. That was, doubtless, as pointed out by tho Court of Review, extremely vague. The objection to issuing a peremptory writ in that form was clearly stated by Mr. Justice Mackay (Record, pp. 270, 271). " Under such vague conclusions," ho observes, " the point really meant to be tried is hidden. That the defendants are bound to bury Guibord in the Roman Catholic Cemetery, according to tho usage and tho law, is indisputable, and is not disputed. Peremptory mandamus to do this would nevertheless leave things Just as unsettled between plaintiff and defendants as they were the day before tho plflinlifl' presented the requ6te." But if the principle above laid do>vn bo acted upon, the court may, ;(■■ MANDAMUS f)4!» FOK.W or Tilt: WBIT. in u jwremptory writ, Hpocity distinct!}' wimt llicy considor tho (loi'undantH iiro lioiiml tii do lu-i-ordin/r to usii^o and law, and may peremptorily coniniand the defendants to do it. If they consider that tlie detendants are bound to provide ecclesiastical burial with the rites and ceronumies of the Koman Catholic Church, they may say so. II they consider that the defendants are bound to bury the hotly in that |)art of the cemetery in which bixlies of those interred with ecclesiastical burial are usually buried, the jjeremptoiy writ may bo wonled accordingly. If they think tho defendants arc bound to register the burial, tiie writ may go on to order such rci^istra- tion ; or, if they think that the defendants arc not bound to register the burial, they can order tho burial alone. MANDATK See Principal and aoent. See Faurique. MARCUILUEKS MAltUiAGE IN KXTKK.1iIH. Scott v. P.\yi;F.T ' 7. The uftiou was to annul a marriage, and to sot asido a murriagt5 i'outra«it, on the ground that, at the tinu' of its ctdebration, the huisband was delirious and of unsound mind, arising from an attack of delirium tremens, from which disorder he died two days ai'terwards. But although the evidenie of one of the husband's medical attendants was to the eliect that, at the time of the marriage, he was uncons- idouN, and, in his opinion, from the nature of the disease, incapable of contracting marriage, the Jitdicial Committee held the marriage good and, on the general review of the evideno treated as primarily his contract, and the wife as brought in by him to secure the liability which ho is going to contract. Their Lordships wish it to be distinctly understood that they express no opinion upon the question, whether that case of Jodoin V. Dufresne was well decided or not. It is not in their opinion now necessary to say a word which will detract from its authority, whatever that may be ; but they also desire to say nothing whicii can bo deemed to add to its authority. But, taking this to bo good law, still the question remains, what the effect of that doctrine is upon this particular transaction ? Now this transaction consists, as far as the appellants and the debtor are concerned, really of three parts. In tne first part it is expressed that they pledge themselves as sureties for the payment of the son's debt. The law, as inter- preted in that case, clearly and beyond controversy renders that null and ineffectual as far as the mother is concerned, but leaves it MA U HI AG K 6SS BIOHTN AND MABILITIEI* OF MAIIBIED WOMEN. porloctly ett'ectnal nnd valid aw far an the father is concorned. Next they jiuriiort, as xuch Kurotics, to liypothecate the imniovcahio property in qiioxtion which was then in the community at* nioveal)lt'. The Unv again, their LordshipH UBHume, would wtriko at that which they prrport to do as Buretios by way of hj*|w»thecation, mo far as tlie wife 18 concerned, and would leave that part of the deed as only the husband's deed ; but it would oe, aw far as his power over this property in communitj- extended a perfectly good deed, and valid and crt'ectual, subject to what might follow from the clause oi'rejirisf. in the marriage contract. There is u third part of the deed, which is not connected in like manner with the first or v.ith the obligation of suretyship so far as the wife is concerned. On the conlrar}-, it is cxpres>e(l in words which show that the framers of it were well aware that it was necessary to deal there with a distinct matter, which might or might not be otl'octual, apart from the jtreceding context. In that portion of the deed the wife expresses her consent to the hypothecation of the immoveable property in question by her husband in favour of the creditors, and renounces in their favor all claims, whether bj- way of property or of h^'pothec. whicli she might otherwise have been coin])eteiit to make to their prejudice. Does that consent and that renunciati(jn fail, because slie could not make herself a surety, and because she could not hj-pothecate in the character of surety ? Their Lordshij)s see no reason for holding that it does fail. In that ojdnion they are fortified, as appears to them, both by reason and by authority. Hy reason, because the wife could only claim to disturb the husband's hypothecation by virtue of the clause ni' reprise on which she acted two or three years afterwards, in the marriage contract. But that clause of re/)m«, if you look to its terms, does not enable her to resume or reclaim any- thing as against a creditor in whose favour she has consented to the act of her husband during the community; and their Lordships think there is no reason or authority for holding that the law, which was passed long after that contract, to prevent married women niaking themselves sureties for their husbands, could enlarge the etfect of the clause o{ reprise or make it operative in the wife's favor as against the husband's power over the community, in a case in which, according to the qualification expressed in its terms, it would not be so operative. It has been expressly so decided in Lower Canada in the case, in the 14th of the Lower Canada Reports, of David V. Gagnon; and although that appears to be the decision of a single judge, their Lordships see no reason to doubt that it was well decided, and they have no reason to suppose that it has ever since been called in question. The other autnorities also go to the effect, that, although there ma^' be in a deed an ineffectual attempt to bind a married woman by words of obligation, yet a renunciation of this kind in the same deed is perfectly good. Two decisions of the courts of Lower Canada, — no doubt by a majority of judges in each case, and 1 think one judge changed his mind, — Chief Justice Duval, — are referred to in the Record; both of which determined that the renun- ciation and the consent of the wife to her husband's act, as against such rights as she might have under a marriage contract, wliether 5Mi MAlililAGE Jii 'at HI«IITH AMD I.IABII.ITIKH OF MAHKIKD WONRX. <)t hypotlicci or <>i' reprise, may Ixi ^ood, although sho could not hind herMcIf hy a direct contract, which hIic had attcnijitcd tu do in tho Hnmo deed. Thoir LordHhips see no reason to ditlcr from thono do- cinions. It thoroforo m unnocesxary to go into the further cunHidern- tion of the qiiuhtion, whetljor a clause of reprine may or may not bo hO conceived as to destroy the huslmnd's power over mohili/^od im- moveables of the wii'o durante covimunitate. Pothier evidently thought the l)etter opinion was that no clause oi'reprisc would do so, for tfiat the effect of mobilisation and the ettect of community taken together required, that while the community subsisted the husband sli'Mild be able to deal with the immoveables as moveables ; but at the same time, recognizing some ditteren(^e of o|)inion among jurist8 on the Hubject, lie suggested that clauses should be worded so as to remove that doubt ; and thiu clause in fact has been so worded. The other authority, iionusson, relied upon by the respondent, most distinctly recognizes the gene/al power of the husband, during the community, not oidy to sell, but to hypothecate the wife's immoveables undei' such circumstances; and all that can bo said to the contrary, as far 118 he is concerned, is that ho saves and does not dotormino the question, what the effect of a clause oi' reprise might be, supposing it were expressed in terms which clearly were intended to give the wife a right paramount to any hypothecation or alienation by her husband. The authorities, as far as they go, upon this subject, appear to their Lordships to bo entirely one way, and tliat is against the respondent. On the whole case, they are of opinion that the present appeal must be allowed, and with the usual consequences as to costs. Their Lordships will therefore humbly recommend Her Majesty to reverse the judgment of the court of (Queen's licnch for the Pro- vince of Quebec, with cost4s, and to affirm, with costs, the judgment HM'OMIXU CATIIUI.KN. tivideiK't', which at'loruanU eanio mit and showvd the wliolc to Ik> an inipimitidii and a farce, or even of their dcchtring ininu'y suhsequent declaration to free tliomsolvoH from the fetters of their matrimonial contract, ('t>XNKI,I-Y V. CoNNELI-V ' 80. Both partit's were proteistaiit horn, doiuicili'd aud mar- ried in I'hihidt'lphiii, United States. In 188;'), the wile ht'cunie a convt'rt to the Uomuii Catholif faith. In 1843, they went to l{(»mi' and upon the rescript and allowaiife of th«' I'ope on their own demand, they were separated ; the hn8}>and, who had previously also become a convert, entered holy orders aud was ordained priest ; the wife entered as a niau in a community. In 184(5. they were together in England, the hushand was chaplain and the wife superioress of a religious house. In 1848. the husband renounced the catholic faith aud again became a protestant. He then required his wife to come back with him, and on her refusal, he took an action for restitution of conjugal rights. The wife pleaded an allegation of twenty-one articles con- taining the acts of the parties and rescript of the Pope. The jiretention of the wife was that the rescript of the Pope had the force aud etfect of a judicial decree of separation a mensti et Ihoro. The Judicial Committee admitted the allegation, and ordered that it should be reformed by pleading the law of Pennsylvania and also the place of the parties aud their domicile at the time of their marriage. MERCHANT SHIPPING cobtittrcction of merchant hhipping act. The Ge.neral Steam Navigation Company v. Tonkin. The " Friends " » 31. One of the rules of the Trinity House is as follows : " "When steam-vessels on diflerent courses must unavoidably or unnecessarily cross so near, that, by continuing their res- pective courses, there would be a risk of coming in collision, each vessel shall put her helm to port, so as always to pass on the larboard side of each other. A steam-vessel passing 1 Canterbury, 1861 June 28, VH Moore 438. 2 Adiriralty, 1844 Feb. 6, IV Moore 314. MERCHANT SHIPI'INCt 66a <-ONMTIIVrTION or MRBfllANT •HIPPIMO ACT. uiiother Id a narrow < ^vuiuel must ulwayn ItMivc the vohsoI she \H passing on the Uirl»oard hand." 32. This rule is not applicable whtMi either vessel in so near the shore, that by porting her helm there wonld be lirreater danger < collision. In sueh ease the \ e.-^sel in ii right course may port her h' lin to starboard. Ulkjh v. Simi'son. The '' Fusilier " ' 83. The words " persons belonging to sufh ship" in the 458th section of the Men hant Snipping Art, 1H')4, include passengers on board the shi]), a. well as the master and creAV ; who, in respect to remuneration for life salvage, stand on the same looting as the master and crew. The " Vei.ihity" '' 34. In considering the movements of vessels approaching each other from a contrary direction, the rules 13. Hand IH regulating the duty of two vessels when they lirst come in sisrht of each other, must not alone be regarded and too strictly adhered to ; regard must be had to cir<'iimstances, sui-h as the bend of the river, or the necessity of avoiding another vessel, which may occasion the apparent alteration of the course. The "Jesmond " and The " K.vai- of Kloin " ■• 35. Article 16 of the admiralty regulations for preventing collisions at sea only applies when there is a continuous approaching of two steamships. When two ships under steam " are meeting end on, or nearly end on, so as to involve risk of collision," as provided for in article 13, and one of them at a proper distance ports her helm sufficiently to put her on a course which will carry her clear of the other, and enable her to pass on the port side, she thereby determines the risk, and is not ap- proaching another ship so as " to involve risk of collision ' within the meaning of article 16, and is not bound to slacken speed or stop. Morton v. Hutchinson. The "Fkanki-.vnd " ♦ 36. Article 16 of the rules and regulations for preventing collisions at sea provides, that "every steamship, when ap- proaching another ship so as to involve risk of collision, 1 Admiralty, 9 Feb. 1865, HI Moore X. S. 51. 2 Admiralty, 27 Nov. 1869, VI Moore N. S. 3 Admiralty, 13 Nov. 187', VIM Moore N. 8. 179. 4 Admiralty, 6 Dec. 1872, IX Moore N. S. 365. 660 MERCHANT SHIPPING f^ S' COKHTRtrCTION OF MKRCHANT SHIPPIWO ACT. shall slacken her speed, or, if necessary, stop and reverse ; and every steamship shall, in a fog, go at a moderate speed." A steamship navigating in a fog, at a moderate speed, hearing a whistle sounded many times, indicating that a steamer was approaching her, and had come very near to her, so near that if the vessels had then been stopped they would have been within hailing distance, is bound under the 16th article not only to stop the motion of her engines, but to reverse them, so as to stop the motion of the vessel, and ought not to wait until the vessels sight each other» when such a manoeuvre may be too late. ScicLUNA V. Stevenson. The " Ehondda " ' 37. The strait of Messina is a narrow channel within the meaning of the admiralty regulations and the Merchant Shipping Act, sect. 21. See Collision : parties in fault. dutien and mabimties of 4»wners, masters or pik.01i«. Stuaut v. Isemonoer ' 38. When a vessel is under the charge of a licensed pilot, the owners, by 6th Geo. IV, ch. 125, s. 55, are exempted from liability in respect of damage done by this vessel, unless it is done by the carelessness of the master or crew. 39. It must be manifest, upon every view which can be taken of the principles applicable to this question, that the civil responsibility of the owners for the damage done in navigating their vessel, like that of all persons employing- servants for their own benefit, can be restricted only in so far as their own acts, or, which is the same thing, the acts of their servants, are not the cause of the damage done. Hammond v. Eooers. The "Christiana " ' 40. The English statute 6th Geo. IV, ch. 125 relieves owners of vessels from liability for damages done by their ship, when the damage is occasioned by the fault, negli- gence or misconduct of the pilot alone. 41. The onus probandi lies on the owner of a ship, claiming- exemption from liability for damages under the above Act, by reason of having a licensed pilot on board, to prove that, the damage was occasioned by the fault of the pilot. 42. When the pilot has fulfilled his duty, if he does not 1 V. A. Malta, 5 June 1883, L. R. VIII Appeal Cases 549. 3 Admiralty. U Feb. 1842, IV .Moore !1. ' 2 Admiralty, 1850 Feb. 19, VII Moore 160. MKRCHANT SUIPPING 561 nVTlRH ASn MABILITIEA OF 4»W!VER<«, MAMTKKM OR PILOTH. quit the ship, she nevertheless routiuiies to 1)l» under his charge and responsibility. Mr. Baron Parke, p. 171: — The duties of the master and the pilot are in many respects clearly derined. Althoii<^h the pilot has charge of the ship, the owners are most ciearl}- responsible to third persons for the sufficiencies of the ship and her equipments, the eompetenc}' of the master and crew, and their obedience to the ordei's of the pilot in everything (hat concerns his dutj-; and, under ordinary circumstances, we think that his commands are to be implicitly obeyed. To him belongs the wiiole conduct of the naviga- tion of the ship, to the .safety of which it is important that the chief direction should be vested in one only. The expressions attributed to the learned judge, in the report of his judgment in this case, we are perfectly satisfied, were never in- tended to suggest that under ordinary circumstances, the niastoi' was to exercise any discretion whether he would obey the pilot or not. Thei'e may be extraordina}^ occasions when the master would be justified in disobe^'ing the "ommands of the pilot. If, from sudden illness or intoxication, he becomes nicompetent to command, the supreme authority would revert to the master during the period of the pilot's temporary incapacity. It may be the same in the case of manifest incapacity of a permanent character ; but any opinion upon these questions is unnecessary for the decision of the present case, as none ofthe.se circumstances occurred. The pilot has, unquestionably, the sole direction of the vessel in those respects where his local knowledge is presumably- required ; the direction, the course, the manceuvres of the ves-i I. when sailing, belong to him. PoLLOK V. McAlpin. The " Lociilibo " ' 43. Wheu a collision is occasioned by the improper sailing and steering of a vessel, the exclusive act of the pilot, the owners of the vessel are protected by the Pilot Act 6 Greo. IV from liability for damage. Bates v. Don Pablo Sara. The "Mobile" ' -:4. The statutes 6th G-eo. IV, ch. 125, sec. 55 and 17th & 18th Vict., ch. 104, sec. 388, only exempt the owner of a vessel, having a licensed pilot on board, from liability for damage, when the damage is caused exclusively by the negligence or unskilfulness of the pilot. 45. When, therefore, a collision was caused by the joint negligence of the pilot and the crew, the statute does not exempt the owners from damages for a collision caused by their vessel. v.- 1 Adminilty, 1851 June 24, VII Moore 427. 2 Admiralty. 185G July 2, I Moore 467. 36 5G2 aif:rchant shipping I, I F 'I" ■-:' It ^,|: dittikn and mabilities ot owwerh, ma8tkrn or piloth. The North Gehman Lloyd Steamship Co. V. Klder. The " Schwalbe " ' 46. The 388th section of the Merchaut Shipping Act, 17th and 18th Vii-t., ch. 104, protects the owners from loss or damage when occasioned by the sole fault or incapacity of the pilot. The onus probandi lies upon +he owners to prove that fact, and they must prove not merely that the crew were under the pilot's orders at the time, but that the order which caused the damage was actually given by the pilot. Track V. Dowie. The " Carrier Dove" Adniralty, 1863 July 3, // Moore N. S. 260. Prowse v. The European and American Steam SiiiPPiNa Co. The " Peerless " " 47. When a vessel is not bound to take a licensed pilot on board, but takes one, the OAvners are liable for his negli- gence, as they are for that of their ordinary servants iLvi.coMsoN V. Baluock. The " Karl of Auckland " " 48. The Merchant Shipping Act, sec. 8o3, exempts masters of vessels from employing a licensed pilot lor t;ertain voyages. Whcrt^ therefore, a pilot is employed by the master lor such voyages, the owners of the vessel are re.sponsible for his conduct as well as for the rest of the crew, The " loNA " * 49. In order to entitle the owner of a ship, having, by compulsion of law, a pilot on board, to the benefit of the exemption contained in the Menhant Shipping Act, 17th and 18th Vict., ch. 104, sec. 388, from liability for damage by default of the pilot, it is not enough to prove that there was fault or negligence on the pilot's part, but the owner must show that there was no default on the part of the muster and crew, which might have in any degree been condur'ive to the damage. When, therefore, there was neglect on the ]iart of the master and crew to keej) a good look out, and such neglect conduced to a collusion, the owners were held liable for the damage The duty of the pilot is to attend to the navigation of the ship, and the master and crew to keep a good look out. The " VelaS' qitez " 1867, July J, IV Moore N. S. 426. 1 Admiralty, 1860 Dec. 14. XIV Mooio U\. 2 Admimlty, 18(i0 July 8, III Law Times N. S. 126. 3 Admiralty, 18iJ2 Dec. 10, XV Moore 304. 4 Admiralty, 1867 Feb. 18, IV Moore N. S. 336. MKliClIANT .5IIIPPING 563 Dt'TIKS ANU I.IABILITIEN OF OWNERS. MAMTEKH OH PII.OTN. Moss V. The Afiiican Steamship ('<>. The 'Calahau" ' 50. lu a t'.ase of collision otjcasioued by a vessel ixiider compulsory pilotage, where no contributory negligence on the part of the master and crew is proved, the pilot in charge is solely responsible, and the owners are exempt from the consequences of his neglect or default. It is the province of the pilot in giving directions for the navigation of a steam vessel of which he is in charge, to determine the rate of spe«jd at which she should jn'oceed. The " Ocean Ware.' VI Moore N. ^. 4!»2. The owners of the steamship " Lion '' v. The owneiis OK THE SHIP '' YoKKTOWN." ThE " LioN " ' 51. The payment of a fare is necessary to constitute a passenger within the meaning of the compulsory pilotage sections of the Merchant Shipping Act (17th and 18th Vict., c. 104). 52. Persons on board by invitation from the captain, who had neither paid, nor agreed to pay, any fare, before a colli- sion took place, were not ''passengers'' so as to exonerate the owners from the damage occasioned by the pilot's default. 53. Held also, that it is not compulsory on a, passenger shii> to take a licensed pilot on board when she is not car- rying passengers ; and the owners are responsible for the negligence of the pilot, where they were not compellable to put him ^u »'harge of their vessel. Kedpath V. Allan ET AL. The " lIiBERxrAN " '^ 54. Under the Canadian Statute 27-28 Vict., eh. 13, s. 5!), where a collision was occasioned by the improper sailing and steering of a vessel, the exclusive act of the pilot, the owners of the vessel are protected from liability for damage. 55. This statute is binding as well on the High Court of admiralty as on the Vice-admiralty court in Canada. 5(1. It does not matter whether the pilot was cho.seu, by the master himself, from amongst a certain class of jnlots, as this selection did not create between them the relation of master and servant and did not take the case out of the statute. 57. Their Lordships having found decisions in American cases contrary to the principl(>s applied in this case, declared that they wore bound to follow the precedents of the English courts. 1 Acimiriilty, 1808 .Vov. .30, V .Moore X. S. 291. 2 Aiimiriilty, 1861» June 10, VI Moore N. S. U',3. 3 V. A. Quebec, 1872 Dec. 3, L. U, IV P. C. 511. 504 MKRCHANT SHI I'PINU M ■"!! niTTIKN AND LIABILITIKH OF OWNERH, MANTKRN OR PILOTS. DCNCAN V. KOSTER. ThE " TeUTONIA " ' 58. The master has the entire direction of the ship, and he may deviate from his course when he has good reason to do it, such as a reasonable tear of pirates. LoKi) Mellish, p. 422: — It sooms obvious that, if a master receives credible intbrmutions that, il' he continues in tlie direct course of his voj'uge, his ship will be exjwsed to some imminent peril, as, for instance, that there are pirates in his course, or ice- bergs, or other dangers of navigation, he must be justified in pausing and deviating from the direct course, and taking any stop which a j)rudent man would take for the purpose of avoiding the danger, And their Lordships agree, if authority was wanting, that the case of Foil- v. Cetcocith' is an authority in point. Gaidet v. Brown. The " Aro'js " and The " Hewsons" ' 59. In a case Avhere no application for deliverj' is made, the captain may land and ■warehouse the cargo at the ex- pense of the merchant ; and where that is forbidden by the authorities of the port, he is not justified in destroying the cargo ; but in the absence of advices he may take it to such a place as in his judgment is most convenient for the mer- chant, and may charge to the merchant all expenses pro- perly inciirred. Sir Montaole E. Smith, p. 160: — The following observations on this subject occur in the judgment of Tindal, ./., in the case of Gat- liffev. liourne*. But we knowof no general rule of law which governs the delivery of goods under a bill of lading, where such delivery is not expressly in accordance with the terms of the bill of lading, except that it must be a delivery according to the practice and custom usually observed in the jiort or place of delivery P. 1G4: — The next question to be considered is, whether the plaintift" is entitled to compensation in the shape of homeward freight for bringing the petroleum back to Fjigland as pointed wxt by the judge of the Admiralty court, the same kind of question arose in Christy v. Rom. ' In that case Sir James Mansfield says : — "' Where a ship is chartered upon one voyage outwards only, with no re- ference to her return, and no contemplation of a disappointment happening, no ilecision, which I have been able to rind, determines what shall be done in case the voyage is defeated; the books throw no light on the subject. The natural justice of the matter seems obvious; that a master should do that wh.ch a wise and prudent man would think most conducive to the benerit of all concerned. 1 Admiralty, 1872 Feb. 8, VIII Moore X. S. 411. 2 0.15. (N. S.)430. 3 Admiralty, 1873 May 30, V L. R. V P. C. 34. 4 4 Hrig (X. C.) 32;). 5 1 T.iiint, .300. MKJJCIIAXT SIlU'IMNd 566 DITTIES AND LIABILITIEH OF OWXERH, MASTERS OR PILOTS. But it appearsi to be wholly voluntary ; I do not know that ho is bound to do it; and yet, if it wore a cariro of cloth or otiier valuable merchandize, it would be a great hardship that he niif,'ht be at liberty to cast it overboard. It is singular that such a question should at this day remain undecided." The precise point docs not seem to h.ive been suiisequently de- cided ; but several cases have since arisen in which the nature anest umler the circumsfmces in whicii it maj' be placed; and that, as a cor- relative right, he is entitle MKKCIIANT SI 1 1 PI'] NG nVTIKN AND MARII.ITIEN OF OWKF.KN, MANTRHA OR PIliOTfl. procautiou whii-h the event suggests that he might have resorted to. Wood v. Smith. The " Citv of CAMiiiitDOE " ' 61. Ill leaving the dock, the master wishing to i)rosec'nte his voyage by getting to sea as soon as posnible, made certain arrangements with the pilot to cross the bar on the next morning's tide. The Judicial C )mmittee held that this was proceeding to sea within the ' .w, although the A'cssel hud anchored at a short distance, us agreed with the pilot, in order to be ready to g(*t out to sea ut the next tide. It was held also that under these circumstances, the employment of a pilot was compulsory, and the owners oi" the vessel were not liable for the collision that took place. 62. The pilots who have right to extra remuneration are only those voluntarily engaged, or tho.se detained along the voyage in the river. VIKfi ON SHIPS. The " NEPTtTNE " '' 63. The creditor who has supplied a ship in England has no privilege on the proceeds of the sale of the ship judi- «aally sold at the demand of thi; seamen for their wages. The balance of the proceeds after the payment of the seamen's wages goes to the mortgagee of the shii >. . . :;■ tJ.AS8ELT V. SacK ' 64. The agents of a foreign siiij. ., iilied her from time to time with coals, and made other J' ursements, receiving the freight, and crediting the same >.^ their accounts. On a general settlement of accounts, they arrested the ship for the balance appearing to be due. The Judicial Committee declared the arrest illegal and invalid as they could not select from the accounts the items for coals, and attribute the balam-e specifically to those items, and, therefore, the specific; demand Wi'.a not proved. Jqhnson v. Black. The " Two Si,i,ens " * 65. There is no lieu on a ship for a debt contracted for repairs done and necessaries sujiplied, until the suit is insti- tuted, and all valid charges on the ship, such as mortgages, must take precedence. 1 Admiralty, 1874 March 20, L. R. V P. U. 4,51. 2 Admiralty, 1835 July 14, II Knapp 94. 3 Admiralty, 18G0 Feb. 16, Law TiiiK'3 II vol. N. S. 613. 4 Admiralty, 1872 Feb. 1, VIII .Moore 398. MKRCIIANT SIIIPPINU 56T LIEN ON HHIPH. Giovanni Dapueto v. Jas. Wylme & Co. The " I'ieve Sipkriohe " ' 60. There is no maritime lieu upon a ship for damage done to the goods, or any part thereof, by tho negligcut-e or mis- conduct of, or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship. Laws v. Smith ' 67. There is no lien on a ship for necessary supplies, such as coal. The Neptune^ 3 Knapp 94 ; The Alexander, 1 Wm. Rob. 288; 1 notes of cases, 188; The Bold Bucclet/ffh, 7 Moore P. C. 267 ; The Volant, 1 Wm. Rob. 387 ; The West Friesland, Sma. 454; The Ella A. Clark, Br. Sr L. 92 ; 32 L. J. P. M. Vol. IX. The Two Ellens, L. R. S A. Sr E. 345 ; 4 P. C. 161 ; The Paci/ic, Br. Sr L. 243 ; The Mary Ann, L. R.\A. iS" E. 8. OENERAI. AVERAGE. Strang et al v. Scott et al ' 68. Ea(!h owner of jettisoned goods becomes a creditor of the ship and cargo saved, and has a direct claim against each of the owners of ship and cargo, for a pro rata contribution towards his indemnity, which he can enforce by u direct action. Dobson v. Wilson, 3 Camp. 484. 69. It is also settled law that, in the case of a general average, the owner of goods sacrificed for the lommon benefit has a lien upon each parcel of goods salved be- longing to a separate consignee, for a due proportion of his individual claim. Crooks v. Allan, 5 Q. B. D. 38 ; Burton V. English, 12 Q. B D. 220. 70. The only exception is in behalf of deck cargo, or when a person, by his own fault, has occasioned the peril. Schlossv. Heriot, 14 C. B. (N. S.) 59. RKiaSTKATION OF HHIPS. Crawford v. Si'ooner ' 71. A ship was built in 1816 and navigated under the flag of Portugal until 1824. She then passed under the British flag and remained thereunder up to 1826. Then she returned to Portugal and from thence she went to a Danish merchant, and, finally, in 1841 was sold to an English resident at Bombay. The name of the vessel was changed a number of times. It was held that she could be registered at Bombay as an English ship. 1 Admirnlty, 18T4 March 21, L. R. V P. C. 482. 2 v. A. Gibraltar, 1884 Feb. 9, L. R. IX Appeal Cases 356. 3 Rangoon, 1889 Aug. 1, L. R. XIV Appeal Cases 601. 4 Bombay, 184G Dec. 15. VI Moore 1. rt«8 MKIK'ITANT SiniTIXG flALK OF NHIP BV MANTKK. Lai'Raik v. BrRRows. The " Afi.sTR.VMA " ' 72. When a ship is in a bad condition ai'd cannot be made seaworthy without very extensive repaiiv, and the master has no means of defraying; the expense of such repairs, and is not able to raise the requisite money ui)on bottomry of the ship, and specially if *^he ship is heavily mortgaged and is threatened with proceeuings in the Admiralty court, the miioter is justified in selling the ship. TuK RiOHT JIoN. Dr. Llsiiinoton, ]). 144 : — The law, as we con- ceive 't to bo settled, is this, that there iiuist lie a necessity for the salo ; that when the master has no authority from his owner to sell, the mast. V is not at liberty to sell merely because lie deems it to be advantageous to his owner, but tiiat there must be necessity for the sale. The n- cessity whicii tiie law contemplates is not an absolute impossibility of getting the vessel repaired; but if the ship cannot be sent upon her voyage without rejiairs, and if tlie repairs cannot be done except at so great and so certain a loss that no prudent man would venture to encounter it, this constitutes a case of neces- sity. We should be exceedingly reluctant to relax the law upon this head, because it is of great importance that masters of ships should not divest their owners of their interest in those ships without due authority, except they are strictly justified by the necessity of the case. Much has been said with regard to the owMS/)/'o6rtn(/(', and their Lordships are disposed to agree that the onus prohandi undoubtedU- lies upon the original purchaser from the master. ]3ut how far that onus probandi extends in the case of a second purchaser, and what etlect lapse of time has upon that question, is a difficult matter, which must depend on all the circumstances of the case. The Australasian Steam Navigation Company v. Mooue " 73. The general principles of law are that the authority of the master to sell the ship belonging to an absent owner is derived from the nei'essity of the situation in which he is placed. Thereiore, to justify his dealing with the goods, he must establish : First, the necessity for the sale ; secondly, his inability to communicate with the owner, and obtain his directions. Sir Montagi:e E. Smith, p. 490 : — Under these conditions and by force of them, the master becomes the agent of the owner, not only with the power, but under the obligation (with certain limits) of acting for him ; but he is not, in any case, entitled to substitute his own judgment for the will of the owner, in the strong act of selling the goods, where it is possible, as hereafter explained, to communicate with the owner, and ascertain his will. 1 V. A. Hong Kong, 1859 July 19, XIII Moore 132. •} New South Wales, 1872 March 22, VIII Moore N. S. 482. ! MKUCHANT SIlll'PIXU ftti'J mam: or whip by nahtkr. P. VXi : — A salo of carfjo li^'tlio master may oliviously ho noces- sary in the above sense oftlic word, altlioiiyh auothei" eoiirse mif^ht have licen taken in dealing with it ; for instanee, if in tliis ease the wool, which had no value hut as an article of eoinmeree, eoiilil have lieen ilried and lepaeked, and then stored or sent on, Imt at a cost to the owner elearly exeeeding any possible value of it to him when so treated, it wonid plainU' have lieen the duty of the master to sell, as a better eotirse for the interest of the owner of the jtroiierty, than to save it by inetirring on his behalf a wasteful expenditure. Fn other words, a commercial necessity for the sale would then arise, justifying the master in resorting to it. P. 495: — The possibility of communicating with the owners must, of course, depend on the circumstances of each case, involving the <'onsideration of the facts which create the urgency for an early sale, the distance of the port from the owners, the means of com- munication which may exist, and the general position of the master in the ])articular emergency. Such a communication need only be made when an answer can be obtained, or there is a reasonable expectati(m that it could be obtained, before tlic sale. When, however, there is ground tor such an expectation, every endeavour, so far as the j)osition in which he is placed will allow, should be made by the master to obtain the owner's instructions. (See the judgment of the Judicial Committee by the Lord Justice Knight Bruce, in the case of The Bonaparte ' ; the corrected passage is given in the report of The Canjo ex JIamhurg. ' ) CoLEQiin Marine I.nsir.vnce. Co. v. Bakteaux '' 74. The prinriples of the above ciiiti^e were miiiutaiued iu this appeal, us will appear in the following' remarks. Sir Henry S. Keatinu, p. 324 : — With reference to the law upon the subject, there seems now to be no doubt whatever ; and it cannot be questioned that the master, under circumstances of stringent ne- cessity, maj' elfect a sale of the vessel so as thereby to affect the insurers. That he can only do so in eases of such stringent necessity has been laid down in u great variety of cases unnecessary more particularly to be referred to, as thej' are well summarized in the work of Mr. Parsons, at p. 147, where he also takes the distinction between the rule that a sale i(j justified by stringent necessity only, and what was sometimes supjjosed to be a rule, that the sale woukl be justified if made under circumstances that a prudent owner unin- sured would have made it. He distinguishes between the two and establishes upon satisfactory authority that whilst what a prudent owner would have done under the circumstances if uninsured may illustrate the question as to how far there was a stringent necessity for selling, yet that the rule is that there must be a stringent neces- sity. (SV( AcyiiEscENCE : lisdem verbis. 1 8 Mouio P. c. r,o, 473. 2 2 Moure N. S. 3J0. 3 Novu Scotia, 1875 .'.larcli 18, I.. K. VI P. C. 319. 570 MKRCIIA^T SHIPPING TKANNFRR OF IIRITIMII NIIIPH. ClIASTKAUNKUF V. CaPEYIION ' 75. The transfer of a Uritish ship is uot governed by the rules appli(;able to movcablfs in general, bnt by the express provisions of the Merchant Shipping Aet, which make a clear distinction between the legal estate and mere bene- ficial interest in a British ship. 76. Upon the sale of a ship by the &herifF,or by order of the High court of Admivalty, the vessel becomes the property of the purchaser, but unless the purchaser get a bill of sale from the Sheril", the Marshall or the Commissioner, as the case may be, in order to entitle him to be registered as owner, the Registrar cannot consider him as owner. Rt:.\t:WAI. OF PirOT'H I.It'K!V8K. Man v. Malcomson. The " Beta " * 77. IJy the 374th section of the Merchant Shipping Act (17-18 Vict., c. 104), it is provided, that no license granted by the Trinity House shall continue " in force beyond the •Slst day of Janviary next ensuing the date of such license ; but that the same may, upon the apjjlication of the pilot holding such license, be renewed on such 31st day of Janizary in every year, or any subsequent day." A pilot having re- newed his license on the 20th day of January was held to be within the intention of that provision, so as to be in opera- tion and effect on the 6th of May following. SIIIP'N I.It'F.Ne(K. Balston v. Bird ' 78. Under 53 Geo. 3, ch. 155, masters of ships are obliged to obtain a license to trade between the different ports in the East Indies. A license allowing the master to proceed from Calcutta to Canton to take in a cargo, and to deliver it on shore at Calcutta, or at any intermediate port in the course pf the voyage, cannot justify a voyage from Calcutta to Canton and from there to the Cape of Good Hope, and the ship was held to have been legally seized. Hee International Law: rules governing ahipa on the sea. MINORITY civile HTATUH AWD REMGIOX OF .WINORN. Skinner v. Orde * 79. A child, in India, under ordinary circumstances, must 1 Miiuritius, 1882 Jan. 21, L. U. VII Appeal Cases 127. 2 Admiralt}-, 18G5 Feb. », III Mooic N. S. 2.3. 3 Cape of Good Hope, 1828 June 21, 1 Knapp 121. 4 Allahabad, 1871 Dec. 12, Vlll Muore N. S. 2G1. MlXUllITY 671 civil, HTATrn Axn rrmuiow or niivohn. be prosumcd to have his lather's religion, and his corres- ponding civil and social status, and it is the duty of a guardian to train his infant ward in such religion and prin- ciples. FAMILY t'OVWl'IL. Chapman v. The Okientai, Bank Cokporation ' 80. A family council to authorize an emancipated minor to give a hy])othec on his nml property is projierly called by an attorney authorized by the minor, his mother and the «'urator to the minor ; and the homologation of the decision of the family council by a single judge in chambers is sufficient. NALK OF MiaiORH* PROPKRTT. The Bank ok MoNTUEAii v. Simsun '' 81. A sale by an insolvent tutor of bank shares, the pro- perty of his Avard, without any of the formalities reqxxired by hiAV, was declared null and void. 82. The circumstances of the pecuniary position of the tutor were known to the authorities of the bank, who had re- ceived notici' from the sub-tutor that the tutor had not authority to sell the shares. The bank, however, allowed the transfer, at the instance of the tutor, and paid the divi- dends to the transferees. The Judicial Committ«'e held that by the Ordonmincc. d'Orletins (January 1560, art. 102) the bank shares did not fall Avithiu any class of property which a tutor had power to dispose of without the sanction first obtained of a court of justice, and that the sales by the tutor were absolately void. 83. The sale of the bank shares was not voidable only, but absolutely void from the time of the sale, and therefore, it was not necessary to make the transferees of the shares parties to the action. 84. The burden of proof falls on the tutor to show that what he sold fell within the property which a tutor is entitled do dispose of without the sanction of a court of justice. 85. The poAver of administration does not necessarily include the power to sell. As regards a tutor, administration includes management, V)ut does not include sale, unless to the limited and qualified extent allowed by law vi^ith refer- ence to the administration of the property of the minors. 1 Mauritius, 18G4 Nov. ;iO, II M' ore X. S. 462. 2 Lower Canada, 1801 July 5, XIV Moore 47. m •mm ft7l MINOIMTY ; U J'-. NAl.t: OF MIIVOHN' PHOHFHTV. Sill ,l(iii\ KoMiM.v. p. Ml : Tlie f'licts aiv not in (liHimlf, ami thf iiui'slion to 111" (K'tiTinint'd is llie cxtj-nt of tiie iiulliorily of ii tutor ov«'r llic jtro|n'ily of lii^ ward ; wlii'tiicr lliat aulliorily oxti-inlcii to Hi'liiiii^ tlu" haiili sliari's in inu-Hlion, and if it did not ?>o «'xt('nd, wliotlii'i" tlie act can lie conHidcrcil as void in itself, or only voidal)lt'. For the purpoM' of dclcrinininj^ this (picsiion, it is necossary to accrtain what the law of Franco was, in this respect, prior to the yreat French revolution, wliiidi is the law wliich now ohlains in liower Canada. This hiw is the old civil hiw as applicahle to this Hiihjecl, regulated, nevertheless, liy article l((2of the OnliiniKiiur of Orlriirti<. proniulj^iited in .lanuary \'M), during the reifi;n of Ciiarles IX, and which inoditied, to some extent in this respect, tho civil law which had previously prevailed on this suhject. The i^enerfl power of tlie tutor over the ward and his pro|)erty was thai of a parent '• iluininl loco iidhrtur ;" lie could ^cl in the ])roperty of the luiimr, and ffive a dischar^^e for payments of delits due to iiini ; in all matters relating to the tutelage the act of the tutor hound the minor. Tho i»ower of the tutor to disj)ose of the property of the minor was originally, hy the civil law, unlimited, unless accompanied hy fraud; and in some cases he was compul- sorily required to realize l>y sale all i)roperty that might hy pos- sibility Hurt'er by being kept, such as houses, lest tlioy should lie burnt. This general |)ower was limited first hy the law of Alexandir Seccrtm, wliich forbade the sale of '' jinrdla" belonging to the ward, and afterwards by the edict of CWv^ftn^'m* which prohibited the sale not merely at'" pra'dia" without judicial authority, but even the sale of any other property of the minor, unless sucii as was liable to perish by use, and also the superfluous animals. And this was the law obtaining in Franco in tiio earlier part of the sixteenth century. when it was furtlier regulated by the Ordiniiiiinrc i)i' Orli'dnts hi .ianimry 15(i0, b^- which, in article 102, it is enacted, that tutors and curators shall be bound, as soon as thoy have made an inventory of the property of their wards, to sell, '^ par autoriti de Justice," the perishable moveables, and to lay out the produce, under the advice of relations and friends, in the purcha.so of ^^ rentes ou hiritni/es," that is, in the prrchase of property producing a permanent income. It is to be observed, therefore, that tlie Ordtmnnnre of OrUans recog- nizes the law then subsisting in France in this matter to be regu- lated by the edict of Constanfine, which prohibits the sale of any property of the minor except those moveableH which perish by use and the superfluous animals; and then, in order to extend the power of sale of the tutor not merely over such moveables as are within the class specified by the edict of Constant tne, but also over those which are liable to decay or i-isk from other causes, enacts that the tutor shall have power to sell all " nieubles pirissables" but these only under the authority of tho law "par mtorlti de justice." By " meubles pirissables," as distinguished from moveables which pe*"! n by use, wo understand to bo meant all property which is i;:i'^le to deteriorate from permanent causes. It is obvious than an 'jrdonnance which declares that for the sale of perishable property MINORITY WALK or MINORN' PROPKRTT. <)t'iMn<)Vfiil)!o ('haraclor tln' Maii(tii>n of a fniirl of juiticc r*liall li«> rt'(|iiir('(l, iiituPH that inovoalilo |iri)|icrly wliicli is ofa jxTniaiit'iil cliaraclor, ami pi'Diliicin^ a |M'niiaiiont iiiiiiiiH'. catinot lit> (lisposocl nt' witliuiit sucli aulhorily. Tilt' I'tl'c'ct ami fxtt'iit of till' Onlimnamr of Orli'uns on ilu' iiowor of a tutor ovor the properly of IiIh ward lias liccn ilic sulin'ci of niiuli (liscusHioii liy the writers and jurists versed in Freiuli law, and has also hecMi tlio Muhjoct of many Judicial decisions, several of which have hoen cited and comiiu^nted upon in their worUs. After carefully exaininin/^ tho various autliorilics ami the writers on this Hulijcct jirior to the onaotment of the French codes, and tcsiinju; their opinion l»y the decided cases cited in their works, we are of opinion, thoui,di passages may he found dispcrse.w denominations of property will come into existence, to which the observations made and rules laid down in previous cases do not precisely apply, but we entertain no doubt upon a full review of this subj..ct, that the bank shares in question do not fall within any class of j)roporty which the tutor has power to dispose of without the sanction of a court of justice. It was not, in our opinion, open to the tutor to speculate upon, or to decide for himself or for his ward, whether such shares as these wore likely to rise or fall in value. We think that no distinction can be taken in this respect, and so far as the power of the tutor is concerned between the shares in the Montreal Eank and shares in the Comj)any of the Bank of England, and stock in the English or foreign funds, and that the .sale and realisation of such property requires tho inter- position and sanction of a court of justice, and tho re-investment of the proceeds in property producing a permanent income according to the terms of the Onlonnance of Orleans. MINORITY m& SA1.E OF IHI^rORN' PROPERTY. It has also been argued before us that the power of the tutor is by sill the authorities held to include administration, and that adminis- tration necessarily includes sale. But ^ve dissent from that argu- ment; we tiiink that the supposition that the administration of the affairs of a ward necessarily involves the sale of any portion of iiis property, is one derived from the ideas which in Kngland attach to the word "administration," which in its technical sense applies only to a legal personal representative; but this is, in our opinion, wholly distinct from the functions of a tutor, and which, in order to avoid confusion, it is essential to keep distinct. Administration, as ap- plicable to a tutor, includes management, but does not include sale, unless to the limited and qualified extent already pointed out. It is partly for this reason that we have not thought it necessary or desirable to comment on the a'.thorities cited from the decisions of the English tribunals, and the arguments deduced from them : they have not, in our opinion, any relevancy to the matter to bo decided in this case. Neither have we thought it ofany moment to consider the articles in the present French code, or the discussions in the conferences wliich took place when that code was framed, except so far as those conferences illustrate any ambiguous point in the earlier law which up to the time obtained in the Kingdom of France. So far as these latter have any bearing on the subject, they concur in bringing us to the conclusion already stated, that by the law of France prioi- to that period, and which is that now in force in the Province of Lower Canada, it was not in the power of the tutor to sell the bank sliares without the assistance and sanction of a court of justice. The next question to be considered is the effect of the sale which has actually taken place, and the transfer of these shares to persons who are strangers to the record. It is argued by the counsel for the appellant, even on the assump- tion that the tutor exceeded his authoritj^ still that the sale was good; and that, assuming that the transfer ought not to have been maxlc, still that being made, it is valid, and that the act can only be treated as a voidable transaction, and not as one actually void, and that, if it bo only voidable, the persons who bought the shares, and in whose names they now stand, ought to have been brought before the court to answer to a mutter in which they were so materially interested. We are of opinion, however, that the act of the tutor, exceeding the limits of his power and the scope of his authority is actually void. The authorities on this subject, amongst the authors cited to us, are conclusive on this head. It is not necessary to refer to them in detail, but it may be useful to refer to one passage, where the Erinciple which governs them and the reasons for it appear to us to e well and lucidly stated by Fothier, in his '' Traiti des Personnes," Part 1, titre VI, article III, section 2. After stating in this passage that a minor can, after his minority is over, reclaim immoveable property sold by the tutor, Pothier ob- serves that he can do so without having " besoin pour cela de lettres do i'e.sci8sion ; car on n'a besoin de ces lettres que pour rovenir f 576 MIXOaiTY i : : m nam: or mi\okn' pkopkhty. c'ontre «on propro fait. ITn miaour a besoin do lottres contro le foit do Kon tiiteur, puree que lo fait de son tutoiir est oensd son propre tait ; niais cette rt^gle n'a lieuqu'a I'dgardfleschoses renfermdesdan-i lo pouvoir d'lm tiiteur c'est-a-dire, qui concernent radministration du tuteur. Or, cette vente faite par le tuteur, dtant une chose qui e\e6de les bornes du pouvoir du tuteur, n'est pas plus sV cot 6." The right, therefore, to bring a civil action in Saint Lucia for the usurpation of a family name must be founded either upon this Ordonnance of 1555, or upon some law subsequently passed and in- troduced into the island. The Ordonnance of 1555 gives no right of civil action for an unauthorized change of name ; and, according to Merlin, in the passages just cited, such an action could hardly have been previously maintained. The Ordonnance subjects the person changing his name without authority to penal consequences only. It says : " Pour iviter la supposition des notns et des armes, defenses sont faites A toutes personnes de changer leurs noms, et leurs armes, sans avoir obtenu des lettres de dispense et permission, a peine de 1,000 livres d' amende, d'Stre punis comme faussaires et itre exautoris et privis de tout degri et priviUge de noblesse." There seems to be great doubt whether this Ordonnance of 1555 ever had any practical operation, even in France. Merlin, in his Ripertoire, tit. " Promesse de changer de nom," says, the Ordinance not having been registered, never became law in France. But Dalloz, in his Dictionnaire, tit. " Nom et Prinofn," after mentioning this opinion of Merlin, says, " Mais la jurisprudence est contraire A cette opinion." At all events, it is not shown that this unregistered Ordonnance ever formed part of the law of Saint Lucia. It is to be observed, that the chief justice of Saint Lucia founds his judgment in favour of the appellants upon adifterent Ordonnance, never referring to the Ordonnance of 15R5 as having any existence, or, at least, as having any bearing up jn his decision. He says, " In France, under the law De mutatiotii 'loininis, names were changed according to the whim or caprice of individuals without any solemnity or formality; but such an unrestrf.ined license brought forth great confusion ; names of living families were arbitrarily taken, and towards the commencement of the nineteenth century, on the llrh of April, 1803, a law was made to check that dangerous system." And he adds, " It is not amiss to observe that that law is not only still in force in this colony, but has been retained entire by the modern legislators of that country. Notwithstanding the 02)inion of the chief justice, that the Ordon- nance of 1803 is in force in Saint Lucia, it may fairly be questioned if it ever became part of the law of the island before it was taken by this country on the 23rd of June, 1803. T-n that day a proclamation was issued which assured and guaranteed to the inhabitants the full enjoyment of their property, under the laws which existed in the island at the time immediately prior to the last cession. It is not very probable that tne Ordonnance of 1803 was one of these laws. It was passed in France a little more than two months before Saint Lucia was brought under British dominion, and not being of any peculiar local imj)ortance, it was not likely in the cri- tical position of the French West Indian colonies at this juncture I NAME 581 under USE OF FA9l'ILY that any euro vrould bo taken to transmit it, in order that it might form part of the law of the ishmd. If the chief justice is right in saying that this hiw was made to prevent persons arbitrarily taking the names of living families, it would seem to show that before 1803 no civil action could be brought, or, at all events, that none was ever brought, to protect a family name from usurpation. If the law of 1803 is out of the question, it is difficult to see upon what other foundation the appellants can rest their right to maintain the action. The Ordonnance of 1555, or one of a similar description made in 1629, was the only law upon the subject of changes of name at the time of the French Revolution. That Ordonnance fell with the kingly authority. In 1794, during the revolutionary government, an Ordon- nance was passed which absolutely prohibited any change of name, but the learned counsel was unable to show that this Ordonnance, any more than that of 1803, ever had the force of law in Saint Lucia. He failed altogether in his endeavour to prove that the existing law of the island entitled the appellants to maintain their action, whether he relied upon the old French law independently of the Ordounances, or upon proof that the Ordonnances ever formed part of the law of Saint Lucia, or, even if they did, that they gave a family a right to proceed by civil action against a person calling himself by the family name without authority, and to compel him to discontinue to use it. Their Lordships are unwilling to dispose of the case without advert- ing to the question arising from the delay of the appellants in insti- tuting their suit. Supposing an action of this kind to be maintain- able, there must be some reasonable limit within which a family ought to be bound to proceed. In the present case, the family of Du Boulay, resident in Saint Lucia, could not have been ignorant that for ten years the respon- dent had been carrying on business openly under the name of Du Eoulay, that he had been recognized by that name in public acts, and that he had undoubtedly acquired the name by reputation. At what time some of the appellants were absent from Saint Lucia, and when they returned, is left in uncertainty; but the head of the family ajjpears to have been continually resident in the island, and no sufficient reason is assigned for his not taking earlier steps to protect the family name from respondent's alleged unauthorized as- sumption of it. NOTARY AVTHEXTic WRITINGS. See EVIDENCE : iisdem verbis. I'ORH. NOTAIIIAL DEED Hamel v. Pa net ' 3. Ill a notarial deed (this was a mortgage) there were sufficient gronuds for supposing that pages 7 and 8 of the 1 Quebec, 187C Xov. IR, L. U. II Appeal Cases 121. 582 NOTARIAL DEED 11- V l'»RM. deed, which appeared to be iu a different haudwritiiig from the otlier pages aud rousisted of halt'sheets of paper, had beeu written after pages 9 aud 10 ; all the pages being fastened together only with a string. It appeared also that tiie notary stated that the deed was passed aud done at the place where he signed it himself, instead of naming the place where the parties signed it. Their Lordships reversed the decision of the court of Queen's Bench, aud held that the deed was nevertheless au- thentic, as there were no irregularities sufficient to annul it. Lord Selborxe, p. 147: — That brings them to tho question of form ; and tiie rirst point of form is connected immediately with this last topic, iis to tlio condition of the deed and the two pages 7 and 8 which are supposed — and for this purpose their Lordships assume that the grounds arc sufficient for so supposing — to have been written after the writing of all or part of what is on pages 9 and 10. Is there any law which deprives tlie act of its authentic and proba- tive character because those 2)ages are not initialed ? Their Lord- shii)s are unal)le to discover any such law. The French law con- tained in the Ordonnauce of Fran5ois I, of October, 1535, to which Mr. Westlaivc referred, says that in instruments, which their Lord- ships assume to include sudi an instrument as this, there shall be no blank left ; everything shall be in writing d'lme datiile. The learned (iounsel have asked us to infi>r that that means the same thing as the exjn'ossion d'un seiil contexte which occurs in a recent French law; but their Lordships are not satisfied that the commentaries on the recent I'^rench law, or the text of that law were intended to be inter- pretative of the word "datiile" in the Ordinance of Francois I; and unfortunately neither the counsel nor any dictionaries which their Lordships have been able to refer to have supplied the required in- formation on that point. Well, at all events, it says it is to be written d'lme datiile without making any npostille in the margin or the text, or anj^ interlineation, or leaving any blank ; and if there be any such thing as that which ought not to be, that is to say, an apostille, interlineation, or blank, it must be repaired and set right at the end of the note ; in fact, it should be initialed or verified by some form of certificate on the part of the notary. Whether there is any- thing here to which it requires the notary's initials or certificate to be applied, their Lordships say they find no apostille in the marghi or in the text, and no interlineation ; for they cannot regard the ad- dition of a particular page or sheet containing words occurring in their proper order and manner in the context of tho deed, without interrupting anj- order which existed before and without changing the effect of any prior coherent and rational context, they cannot regard th".t as an interlineation either in the letter or in the spirit, or as an apostille in the margin of the text, whatever be the proper and exact meaning of that word. Then comes the Canadian law, the Edict of the Council of State of 1733, which says that the notaries shall be bound to put their signa- NOTARLVL DERD 583 an turos, amongst other things, to approve and initial all renvois (it is admitted this is not a renvoi) and erasures by the parties, and so on. The letter of that law does not strike this case, nor does the spirit, as their Lordships think. The mere fact that it is written in a ilif- i'orent handwritting, — the mere fact that this part of the only instru- ment which ever was brought into existence may have been manual- ly written after that which follows it, the two together constituting on the face of the instrument one context for the intended purpose. — seems to their Lordships not to come within the law at all The principle of these laws is the same with that which we are very familiar with in the case of wills, where that which appears to have been added, or altered, by way of erasure or interlineation, re- quires authentication, and otherwise would bo presumed to have Ijeen subsequent to the execution of the instrument; the instrument without it being sensible and adherent. Savere v. Savere, Dalloz Recueil 1851, s. 2, \). 84 P. 149 : — Then wo come to the other objection of form, with respect to tlie place stated upon the face of the deed as the place of passing the instrument. It is stated upon the face of the deed that it was passed in the parish of Saint Amhroise, in the house of the son. Upon the subject of the place, the law relied upon is the Ordinance of Blois, art. 167 : — " Notaries shall also be bound to state in their contracts the qiudity, abode, and parish of the parties, and the wit- nesses named in them ; the house where the contracts were passed," and so on. Now, if their Lordships had to determine, as a mere question of construction, the eftect of those words, " the house where the contract shall have been passed," they would be obliged to say, that the terms of that law do not expressly refer to a case where the acknowledgment or signature of some of the parties has been taken at one house, and the acknowledgment or signature of other parties at another house, and ^'^here the notary signs and passes the act, as far as his signature is the mode of passing it, after ilie last acknowledgment or signature. If their Lordships were obliged to express an opinion on those words, they are by no means prepared to say that they are not suscejitible of the construction, that the proper place to be certified as the house where the contract is passecl is that in which the notary completes the contract by affixing his own signature, which in this case was done ; and, if that were sufficient, it would remove the objection. Evanturel v. Evan- turel, L. E. 2 P. C. 462. NULLITY See Champerty and Maintenance, Contract, Evidence, Insolvency, Hypothec, Legacy, Lessor and Lessee, Marriage, Sale, Testamentary Executor, Will. NUISANCE See Public Nuisance. T If ■■1' ■I. I'iii ; SUMMARY OFFICERS Action aoaimst oovernhent offi- rer for tobt Action in auumpiit aoainst oov- EBNMENT OFFICKR COMHISSIONKR OF GROWN LANUB Domicile of Enqlisq. See Domi- cile : iiidem verbis. PAOE 584 585 686 PAOB District Scrrson in Jamaica 586 Political aoentb in Hondcrab.... B87 Suspension of court's officers... 687 OWNERSHIP ■See Proprietor. ONUS PROBANDI See Evidence. OFFICERS. ACTION AOAINBT GOVEBNMEMT OFFICEB FOR TORT. BOOERS V. DUTT * 1. The appellant was sued in damages lor an act done in his official capacity as Superintendent of Marine, under the government. The declaration did not allege malice. The action was held not maintainable, but it would have been maintainable if malice had been alleged and proved. 2. If the government, by its agent, commit an illegal and damageable act, the agent is personally responsible. The government, in such cases, is morally bound to indemnify its agent, but, at all events, the right of the party injured to compensation is not subject to this consideration. Dr. Lushington, p. 103 : — For if the act which he did was in itself wronful as against the plaintiff, and produced damage to him, he must have the same remedy by action against the doer, whether the act was his own, spontaneous and authorized, or whether it was done by the order of the superior power. The civil responsibility of the supreme power for tortious acts could not be maintained with any show of justice if its agents were not personally responsible for them. 1 Calcutta, 1860 July 30, III Law Times N. S 160. OFFICERS 688 ACTION IN ASSUMPSIT AOAINST CiOVERNMENT OmcER. Pai.mek V, Hutchinson ' 8. No action iu assumpsit lies, before the ordinary i-ourts, against a public officer of the government in his official capacity ; the proper recourse is by petition of right. 4. The action was an assumpsit against Her Majesty's Deputy Commissary General and for general damages for breach of contract. The defence was an exception to the jurisdiction of the court, which was maintained. Sir Barnes Peacock, p. 625 : — The crown, by virtue of its ])rero- gativo has a right to sue by information in the name of the attorney general and also has a right to sue in the Admiralty court in tht^ name of the procurator general, but in the present case tl\o chief justice treats the plaintiff as attempting to sue the impiTJal re- venue by making a public officer a defendant in his official capacity. But this right of the crown affords no support for the proposition that tlie government revenue may be reached by a suit against apubiic officer in his official capacity Their Lordships are clearly of opinion that the Deputy Commis- sary general cannot be sued either personally or in his official capacity upon a contract entered into by him on behalf of the Com- missariat Department. Ho is not a corporation and he has no pro- perty or assets in his official capacity, which could be seized or attached in execution of a decree against him in that capacity, and it is clear that no portion of the government revenue, whether allocated to a special purpose or not, could be seized in execution under it. The law upon the subject has been clearly laid down in several cases. In the case of Macbeath v. Haldimund which was an action against the governor of Quebec for military stores and sup- plies provided under his order for the garrison of a fort, Lord Mansfield said : " The only question before the court is whether the defendant be liable or not in this action. If he be, the plaintiif must recover, if not, no consideration as to the plaintift''s remcdj- against any other person can induce the court to make him so. There is no colour to say that he is liable in his character of com- mander in chief; in a late case which was tried before me where one Savage brought an action against Lord North as First Lord of the Treasury in order that he might bo reimbursed the expenses which he had incurred in raising a regiment for the service of government, I held that the action did not lie. So in another case of JOuttcrloh against Halsey, which was an action brought against the defendant who was a commissary for the supply of forrage for the army and by whom the plaintiff had been employed in that ser- vice, the commissary was held not liable. In the present case, it was notorious that the defendant did not personally contract. The plaintiff knew at the time that he furnished the stores that they were for the use of government and afterwards made government debtor in his bills. If- < 1 Natal, 1881 July 15. L. R. VI Appeal Oases. .')H(! OKFlOKitS i k ■' P i^i\ t-, I' I' A< TIOX IN ANMVNPNIT AOAINNT «OVKHNKNT OFFIt'KK. Ill I lit' ca^o of (iidlci/ V. Lord Palmerston it wut* hold tlmt an notion wniiid not liu iiguiiisl tiie Kocrotary at war lor inonoyf* wliicli lu;, as a puijiic the jilaintifrs tostator on aci'ounl of hin rotirinj^ aliowanco. In that eaho, cliiet' justioo Daihis in dolivoriiiLt tiio ji dgmont ot' the court said: "It is not protended that the dctbndanl iM to i)e ihar;;ed in respect of any expreas undertaiiing or agroenient he- I Weill liini and the testator, or in respect of any other character than liis public and ofllcial diameter of secretary at war. It is in liiat ciiaracter anil in that only that his duty is alleged to arise, lieiiig therefore a duly as hetween him and the crown only and not resiiliing from any relation to or emiiloyment by the plain- tirt', or under any undertaking in an}' way to bo personally res|»onsil)le to him. The money received is granted by I'lo (^'own subject only to the disjiosition or control of the defendant as the agent or officer of the crown and rcsponsiljlo to the crown for the due execution of the trust or duty so committed. There is therefore no duty from which the law can imply a promise to pa}' to the testator during his life or to his e.vecutor after his death, nor can money be saiil to have been had and received to the use of the testator, which money belonged to the crown, being received as the money of tlio crown and the party receiving it boiig responsible only to the crown in his puljlic character. On this view of the case it appears to us that that this action cannot ix? maintained. Any funds whi' li may l»e issued by government to the commissariat dejiarlment for the service of the State stand upon the same footing as that above described with reference to the money received by the secretary at war. With reference to the remark of the chief justice that the case could be dis|>osed of by having regard to the practice of the court, the forum of the lomts ('o«f/'rt(.'fus and of the action, their Lordsiii])s think it right to say that no practice of the court can confer upon it any power or jurisdiction beyond that which is given to it by the charter or law by which it is constituted. COM.YIIMNIOXKRN OF CROWN LANDN. C0.M.MISSIONE11 OK Ckow.v Lands in New South Wales ' 5. lu New South Wales, the Commissioner of crown lands is a public officer holding his office during pleasure, and may be removed by the Governor General in council. DOMICIL.K OF EsroMNii See Domicile : iisdem verbis. DISTRICT SURGEONS IX JAMAICA. %i, 1^ Hill v. The Queen '' 6. In Jamaica, the office of Surgeon of the district prison of St. Catherine is held during pleasure, at the discretion oi the justices of the peace. 1 New South Wales, 1858 Juae 14, XI Moore 288. 2 Jamaicu, 1854 Feb. 20, VII Moore 138. OFFICKFfS m DIKTRICT NrROROKN IX JAMAICA. 7. It is u well established rule that the foixrt.s of law ^\ ill not iutt'rtero by munuamus with the exercise ul' such dis- cretion. IMIi.ITK'AI. AUKSTTH I.\ IIOWDVHiN. IIoooK V. The Attorney (ieneiiai, (it- liuiTisit IIundluam ' S. Under the constitution of Honduras, the Superinten- dent's assent or conlirmntion have been at all times neicssary to give the force of law to measures passed by the Lenislutive Assembly; and no political ag-ent with a salary could be appointed without his consent. An appointment made by the Leo-islative Assembly , asj-aiust the will of the Superin- tendent, of a political agent to repre.sent the colony in England, was declared illegal by the Judicial Commiltee, and the agent without any right to claim a salary. NlJNI't'.XNIOX OF COURT OFFK'EHM. Ill /•<• (ill.WT '•' 9. The appellant, an officer of the court, was a shareholder and director of the Union Bank at Calcutta. The board of directors made a yearly report rontaining deceptive state- ments, as to the state of the affairs of the bank. It was proved that the appellant was a party to the fraud and thul he also availed himself of his position of director, to obtain credit to a considerable amount upon his personal security only, Avhich, by the condition of the deed of co-partnershii) of the bank, amounted to a breach of trust. The Judicial Committee held that although no charge or imputation, ■with respect to his judicial functions, was brought against him, there were sufficient grounds for calling upon the court to protect the administration of justice, by suspending such officer for so misconductinu," himself. See PUOPRIETOR. See Evidence. 0WNEK8HIP ONUS TRUBANDI 1 Honduras, 1864 June 2, II Moore N. S. 325. 2 Beiigftl, 1850 Feb. 19, VII Moore 142. tl > SUMMARY PAGEB PARLIAMENT iS^et! Leoislatcre, Govgunoh. PARTITION Au mare la livre. See Insolvency : tindem verbis. What is 590 PARTNERSHIP ASBBTS AOqUIHED PENDING NIECO- CIATI0N8 TO 591 Partition ok PRoPEnTV 591 Responbiuility op 592 Rksponsibilitt of new riRM 592 Right of partnkk to sue alonk... 593 Powers of partnerh 594 Who 18 A partner 595 PATENTS Right to extension 597 Right TO 601 PAYMENT By kkror o02 Demand of 603 Fraudulent prefeukncks. See In- solvency : iiidem verbis. Imputation 604 Of mortcaoe due in another COUNTRY. See International j law : iisdem verbis. Subrogation. See Subrogation : what eonstitutes Tender 605 Value of cubrencv. See Inter- national LAW : ittdem verbis. i With BILLS of exchange. See Bills of exchange : iisdem verbis. PETITION OF RIGHT Damaoeb for breach of contract 606 PILOT Duties and liahilitieb of. See MKRCHANTBHipriNo: iisdem verbis. Renewal ok license. See Mer- chant SHIPPING : iisdem verbis. PIRACY Anterior ACTS of PIRACY 607 PiHACt ea: jure gentinm 608 ! r.VOEB PLEDGE Agent pledging goods of his PRINCIPAL. iStion that the invention is not useful. This presumption, how- ever, may be rebutted by evidence showing the utility of the patent. 25. The fact that the inveu4on was of such a nature that it could only be carried out by a company which could not be formed, is not sufficient to rebut the presumption against the practical utility of the patent. In re Hills' Patent * 26. In an application for prolongation of the term of letters patent, the Judicial Committee will not try the validity of ihe patent, and though in general they will not enter into (questions of doubtful validity, yet they wull not recommend an extension of a patent which is manifestly bad. In deter- mining whether to recommend an extension, though the A-alidity of a patent may not be directly impeached, yet with respect to the novelty and the utility of the invention, the 1 England, 185G Dec. 1, X Moore 48S. 2 England, 1860 Feb. 8, XIII Moore :n3. 3 England, 18<;2 Xor. 20, XV Moore 385. 4 England, 1863 Jnly 7, I Moore X. S. 258. ' -. n i I'ATIIXTS ')'M) RIGHT TO KXTRXNIOW. degroe of merit to be attribiitod to tht> petitioner is to bo taken into actoiiut, as well as tht> ainonnt ol" remuneration received by bim undtu* the i)atent, dedueting law expenses in maintaining his i)atent rights, as an extension is not of strict right, but rather of equitable reward. In re Noktons Patent ' 27. The grounds upon which letters patent may be ex- tended were stated as follows in this cause. TiiK RidiiT Hon. Stu John Komilly, p. ;^4;^ : — The groumls upon whieli their Lurilship.s grant oxteiisioiis of patents, all liavo referoneo to the inventor himself. They are, in the first plnee, to reward the inventor for the peculiar ability ami imlustry he has e.xereiseil in making the discovery ; in the second place, to reward him because some j:;reat benefit of an uiuisual description has by him been con- ferretl u})on the public through the invention itself; or lastly, be- cause the inventor lias not been sufficiently remuner.nti'd by the profits derived from his strenuous exertions to make the invention profitable. All these ground:- ju-oceed upon the su])position that the invention is a new and useful invention. But when the inventor in- tentionally delays for a great length of time attempting to ])Ut it into practice, the grounds for prolongation of the patent which 1 have already mentioned cannot bo relied on by him unless it be jios- sible for him to show some reasonable excuse for the delay. In some circumstances there might be a considerable ground of excuse arising from want of funds; the pecuniary difHculties in which the patentee had been involved in working out his invention might have placed him in a situation nhich had made it extremely difficult for him to obtain the means for taking the necessary steps to put the patent into operation P. 344: — it must always be borne in mind that the as- signee of a patent does not, unless under peculiar circumstances, apply on the same favourable footing that the original inventor docs. The ground that the merits of the inventor ought to be properly rewarded, in dealing with an invention which has proved useful and beneficial to the public, does not exist in the case of an assignee, unless the assignee be a person who has assisted the paten- tee with funds to enable him to perfect and bring out the invention, and has thus enabled him to bring it into use. In re Lancaster's Patent ' 28. Extension of four years granted, the patent being valuable and useful as improvemeuts in the manufacture of fire-arms. A demand from the solicitor-general that leave should be reserved to the crown to use the patent without 1 Engliuid, 18G3 March 4, 1 Moore X. S. 339. 2 England, 1864 June 10, II Moore X. S. 189. tlOl) PATHNTS mm HIOIIT T«> KXTKNMIOM. ri'miiucriitidu, as the j^ovormncnt htid nlrciuly paid to the patciitct! hux«' siuusolmoju^y hy way ol' bounty and reward, was ri'lusi'd. t'eltU Smith's l^utenl, Vll Mooio, 1*. C!. 133. /// re Tikitman's 1'atknt ' 29. To entitle a patentee to a proloiii^atiou of the term of letters patent, he must sati.sfactoriiy^ establish the amount of his profits. In v LAN's Pate.nt '' 30. Where the utility of a patent ha.^ Seen tested by actual t'uiployment, for a period of fourteei^ years, although etlbrts have been made by the patentee to bring* it into use, it raises a very strong presumption against its practical utility, which presumption can only be riibutted by the strongest evidence. In re McDot'dAL's Patent' 81. Where the specification of a patent described it as im- provements in treating, deodorizing and disinfecting sewage and other offensive matter, and also for deodorizing and disinfecting in general, and as being composed of two ordinary w^ell known chemical acids in combination, such acids being in common use for disinfecting purposes by the public before and alter the letters patent, it was held, not to be an invention of such merit and utility as to instify an extension, to the detriment of the public in tne use of known sanitary agents. In re Jounson's Patent * 32. The principles established in the above case of Hill's patent approved, Re Pitman's Patent'' 33. As the recommendation to the crown for the prolonga- tion of the term of letters patent is a matter of discretion in the Judicial Committee, it is imperatively necessary that the petition for such prolongation should state fairly and fully everything relating to the patent ; an omission to do so is fatal to the application. 34. In this application, the petition omitted to state that the patent was. in fact, a communication from a foreigner living abroad, who had previously to the English patent, patented the same invention in America, and that the 1 EiiRland, 18GG, III Moore N. S. 488. 2 England, 1867 July 15, IV Moore N. S. 443. 3 England, 1867 Dec. 5, V Moore N. S. 1. 4 England, 1871 June 17, VIII Moore N. S. 282. 5 England, 1871 Dec. 4, VIII Moore N. S. 293. I'ATKNTS (10 1 rjflllT TO KXTKNNIOSr. Amoriran piitt'iit luul fxpired, thouffh iiflt'rwards rt'iicwed ill Amorica. The .liidii-ial ('((iniuittcc, tiiidt'r the tinuni- Htuufes, ri'l'uNi'd tho upplit^atiou. Re Hlakk's I'atknt ' 35. Tho fai't of having dropped tht! i)attMit obtained in a ib^«i^■u country is a prt'Hiimption against the public utility of the thing patontc-' and is snllicicnt for the Judicial Com- mittee to refuse an extension. In re Hu.vndon's I'atknt ' 36. The statute 4(5 and 4Y Vict, does not apply to patents granted before the Act. Nor has it changed the rule* pre- viously adopted by the Judicial Committee, namely that an applicant for a nnievval is obliged to produce accounts of the prolits he has received under foreign patents for tin- stime invention. RIUIIT TO In re Caud's I'atknt •' 37. In order to be entitled to letters patent, an ai)i)licant must show that he is the inventor. Upon an application it was proved that the article was not publicly and generally known prior to the application ; but that some persons had systematically used an article identical with it, for several years i)rior to the application, and that the subject of the patent was little more than an application of a well known article in trade. Under such circumstances, their Lordships refused to recommend the confirmation of the letters patent,a8 it was not a case in which the statute was intended to apply. In re IIoNinAiiL's Patknt * 88. The authority conferred upon the crown to conlirm letters patent, is discretionary in the Judicial Committee to recommend or not a confirmation. The jurisdiction is one which is most cautiously and sparingly to be exercised, as the effect of a confirmation of letters patent is to give force and validity, by a quaai legislative authority to a grant of monopoly actually void, and to exclude from the use of the invention not only other subjects of Her Majesty in England, but even the first and original inventor, who may have actually brought it into public, though not into general use, before the patent was taken out. The consideration for 1 England, 1873 Jan. 14, IX Moore N. S. 373. 2 England, 1884 June 10, L. K. IX Appeal Cases 589. 3 England, 1848 Feb. 9, VI Moore 207. 4 England, 1855 Feb. 2, IX Moore 378. (m PAT.; NTS KimiT TO Kuch a moiioi^oly is the benefit derived by the public from the comiiiuniciition of a new and useful invention. 8!). Two conditions are reqiiired from a petitioner apply- ing for a confirmation, to be established to the satisfaction of the Judicial Committee : first, that before the date of the letters patent, (the subject of application), the invention was not publicly and generally so used ; and second, that the grantee of such letters patent believed himself the first and original inventor. 40. A first and original inventoT means a person who could claim the merit of the first invention without re- ference to the user. 41. Although a party may believe himself to be the first and original inventor, yet he lannot shelter himself under wilful ignorance, but will be fixed not only with what he knew, but with that which he might have known had he made the inquiries which it was incumbent upon him to make. PAYMENT BT EKROR. Colonial Bank v. Exchange Bank of Yarmouth. ' 42. A merchant being indebted to two banks, that is, to the respondents and to another bank in Halifax, remitted a sum of money to the appellants to be paid to the Halifax bank. By error, the appellants sent the money to a New- York bank who transmitted the same to the respondent, where credit was given to the merchant and the New- York bank Avas debited. The Judicial Committee held that this was not payment, but money remitted by appellant by mistake, and that this latter had sufficient interest to claim by an action the money from the respondent. Daniel v. Sainclair " 43. It has been held that money paid under a mistake of law cannot be recovered, and that, under certa n circum- stances, the giving credit in an account may be treated as so far equivalent to payment, as to prevent sums of money wrongly credited being made the subject of set oft". Ski/ring V. Grfenwood, 4:B. iV C. 281. But in equity the line between mistakes in law and mistakes in fact has not been so clearly and sharply drawn ; and in a great many cases relief has been and can be given to a party who has dealt with his property under the iulluence of a mistake. Earl Beaw.hamp 1 Nova Scotia, l'^8"i Dec 10, L. H. XI Appei) Ci\>c.-5 84. 2 Xow Ze.ilund, 1881 Teb. 22. L. I!. VI Appciil CiUfS 181. PAYMENT 003 nv EKnon. V. Wi/m, Lair Rep. (3 H. L. 234 ; Cooper v. Phihhs, Lav Rep. 2 H. L. 170 ; McCarlhij v. Decain, 2 Rnss tV -"Ww/y, 614; Livesey V. Livesei/, 8 Russ 287. DKn.vxD or Campbell v. The Commercial Ba\kin(! Company of Sydney ' 44. A demand of payment is not bad because it demands more than what is really due, and it does not do away with the necessity on the jiart of the debtor of tendering "what is actually due, unless there is at the same time a declaration amounting to a refusal to take less. The Norwaij. 3 Moo. P. C. N. S. 245. MoouE V. Skelley '•' 45. By an agreement written in a mortgage deed, the mortgagor was to remain in possession of the pro])erty until demand should be made by the mortgagee of the money advanced, and then in default of payment, the mortgagee would enter in possession. It was decided that, under such agreement, a reasonable time must be given to the mortgagor to make the jmyment, after the demand has been made. The mortgagee having entered in possession iminediately, an action in damages for tresspass was maintained. Sir Barnes Peacock, p. 21*8 :— The deed must receive a reason- able construction, and it couli' not have meant that the pluintift' was bound to pay the money in the very next instant of time after the demand, l)ut lie must have a reasonable time to get it from some convenient ])lace. For instance, he might require time to get it from his desk, or to go across the Ktrcet or to his bankers for it. There are other circumstances in the case. AVhcn, as here, the i)erson making the demand is not the person entitled to the monc}' but his attorney, the person on whom the demand is made must have a reasonable opportunity to inquire into the authority of the ])ers()n making the demand. The attorney may send a bailiff to make the demand and authorize him to receive the money, but the mere demand by that bailiff, does not intimate to the plaintiff that ])ay- ment to him will suffice, that fact, at least, ought to have been communicated to the plaintiff. And even if that fact had been communicated to the jilaintiff, still, if he bond fide doubted the truth of the statement, he would have been entitled to some opportunity to inquire into its truth liefore the defendants W(^ald be entitlixl to seize his goods. t'RAi-nvLKXT I'KEFKKK.NXKN. See INSOLVENCY I Usdevi verbis. 1 New South AVttU'8, 1870 FcIj. 15, XI. Lnw Times .V. S. 1,37. 2 Xew South Wales. 18S3 Fob. VX \.. \X. VIII Appeal Cases 285. ... T <;04 IMPVTATIOX. PAYMENT Cami'ell v. Dent 4(5. According to the la-\v of Scotliind, uaputation in inde- Hnite payments is made by the creditor as he thinks fit ; and it must be construed, in every case, so as to follow his own adA'^antage The Eight Honorable Dr. LtsniNnTON, p. 308 : — If this be so, the next consideralion is, the hiw of Scothmd on the subject : and the law of Scotland, though as might naturally be expected, there was formerly some variation and has been some change in opinion, yet the law of Scotland Vol. ii p. 535 states, " Before closing this sub- ject of partial payments, it may b'j proper to clear the doctrine of indetinite payments from certain doubts which attend it in the apjilication of payment made by one who stands indebted to another in more than one obligation. The rules are : First, that the creditor must receive as appropriate to one of these debts a payment made by the debtor for the purpose of extinguishing that debt. Secondly, that the receipt given by the creditor for the money will tix ap- propriation. Thirdly, that where the payment is made indefinitely and no appropriation expressed in the receipt, the creditor has the right to ascribe it to which debt he may see tit and it will be cons- trued accordingly that he has followed his own advantage. Then ho states the principle on which the practice is founded with the ex- ception (which do not apply to the present case, even supposing them exceptions.) And he states the authorities on which he relies. I do not think it necessary to state those authorities at any extent but it may be advisit'jie to refer to one which is in Morrison's Dictionary p. 873. The decision took place in 1739, in the case of Torbs v. Iimess. We have receded much from the civil law in the matter of indetinite payment. With us it has been understood to be a[)plied to the debt worst secured and to the debt not bearing annual rent to which as the dv.riorsors it was applied by the civil law. Nay we have not gone so far as instead of the rule of the civil law that electio is res debi- toris we have gone into the direct contrary that electio is creditoris, and accordingly it was in this case found that the indetinite pay- ments were to be imputed as the creditor thought tit. In Mr. Erskine's 3rd book title 9, sec. 2 there will be found the same doc- trine laid down in very nearly the same words. Attorney General op Jamaica v. ALvnuerson ' 4*7. The respondent was surety for the Collector of taxes in Jamaica, for the year 1842. The Receiver-gimeral of the Island having pressed the Collector to remit him the ar- rears of 1841, this latter sent him a sum in which was in- cluded i;5,000 collected for 1842. On receiving the snm, the Receiver-general appropriated the whole of it in liquidation of the arrears for 1841. Au action was taken by the crown 1 lirilisli Guiann, 1838 Doc. 18, II .Mooro 292. 2 Jamaica, 1»48 Feb. 18, VI Moore 239. PAYMENT 605 IMPUTATION. against the respoudeiit as surety for the taxes of 1842. The defence was that the mouey collected for 18-12 having been remitted by the Collector to the Receiver-general, the con- dition of the bond was fully complied with. The action of the crown was maintained. If a party be indebted to another, in two or more accounts, he is entitled to appropriate any payment he may make to w^hichever account he pleases. If, however, he does not make any appropriation of the payment, then the creditor may appropriate it as he pleases. Kershaw v. Kirkpatrick ' 48. The giving of a cheque by the debtor with the in- tention to appropriate this payment to a debt, and the re- ceiving of a receipt therefor by the creditor's agent, acting within the scope of his authority, constitute by the law an imputation of payment, which could only be changed by the consent of all the interested parties. Sni Robert P. Collier, p. 393 : — The only observation their Lurd- 8hip.s think it necessary to make upon these provisions in the Code (Code Civil art. 1158 and C. N. arts. 1100, 1101) is, that they seem to explain that " claims founded on contracts, and grants made on be- half of the crown are within a class legally distinct from wrong." It was argued i'or the respondent that in Thomas v. The Queen, L. R. 10 Q. B. 31, the claim of the suppliant was not for damages, but for a pecuniary consideration alleged to have been due iu terras of the contract ; and consequently that in was unnecessary for the court to decide anything as to the liability of the crown for un- liquidated damages resulting from breach of contract. But Lord Blackburn, in that case, deals with the suppliant's petition as alleging certain breaches of promises made to the suppliant on behalf of the Queen ; and hie reasoning appears to this Board to be quite as applicable to a claim of umiquidated damages for breach of contract, as to a claim for the contract price. Lord Blackburn rests the judg- ment mainly upon the " Bankers' case," (14 How. St. Tr. 1) which was a suit for annuities granted by letters patent under the great seal ; but his Lordshij) at the same time points out that, from the time of Lord Soraers, there had been repeated expressions of opinion by eminent judges in favour of the view that a petition of right lay against the crown on a contract. It is unnecessary to cite these opinions, which are all collected in Thomas v. The Queen. (L. R. 10 Q. B. 31). Their Lordships may, however, refer to the accurate ex- 1 S. C. Canada, 1886 June 25, L. R. XI Appeal Cases 607. !f1 PETITION OF KlGllT 607 DAMAGE FOR BRKAC'H OF C'O^'TBACT. position of the law given by the hite Ju.stieo Cockburn, C. J., in Feather v. The Queen (G B.& S. 2H3) :— •• AVe think it right to .state that we see no reason for dissenting from tlie conclusion arrived at by the Common Pleas in Tobin v. The Quern (16 C. B. (X. S.) 210). We concur with that court in thinking that the only cases in which the petition of right is open to the subject are, where the land, or goods, or money of a subject have found their way into the possession of the crown, and the purpose of the petition is to obtain restitution, or if restitution cannot be given, compensation in money, or when a claim arises out of a contract, or for goods sup- plied to the crown or to the public service." See Crown, Crown Lands. PILOT See Merchant shipping : iisdem DUTIES A]«D I.IABII.ITIES OF iisdem verbis. HE.VEWAIi OF EICENSE. ScB MERCHANT SHIPPINO verbis. PIRACY ANTERIOR ACTS OF PIRA4;T. Reg. v. McCleverty. The "Teleuravo" or " Restauracion " ' 51. Accordiug to the principles of maritime law, goods piratically taken cannot be assigned and transferred to a third party as against their legitimate owner. 52. However, that rule does not apply to a ship belonging formerly to a pirate, as the taint of piracy does not, in the absence of conviction or condemnation, continue, like a maritime lien, to travel with the ship through her transfers to various owners. Sir Robert Phillimore, p. 60 : — Many authorities were cited for the purpose of establishing the position that the goods of pirates cannot be transferred by the pirates to a third parly. That goods piratically taken cannot be transferred to a third party as against their legitimate owner is an undoubted proposition of public and of international law, but the further and ditferent proposition, that the ship of the pirate which has not been taken from another pei'son cannot be transferred to an innocent purchaser for value, is not sup- ported by any of the authorities cited. The goods of pirates are forfeited to the crown in its office of Admiralty, but not until after conviction, and the ship of the pirate, but not until the condemna- tion; or, as it is correctly stated in Bacon's Abr., tit. " Piracy," the goods of pirates not taken from others, belong, after attainder, to the Crown or its grantee ; and those of which others have been despoiled will be forfeited in the same manner if the owners come not within a reasonable time to vindicate their property. 1 Virgin Islands, 1871 Feb. 15, VIII Moore N. S. 43 i- fc- 't Am ;i I 1" ■# 608 PIEACY pikac't ex jure oewticm. The Attorney Gembkai> for the colony op IIONG KoNd V. KWOK-A-SINQ ' 53. Piracy is nothing but robbery and the principles of law applicable to one may be applied to the other. Lord Justice Mellisu, p. 199 : — They (their Lordi^hips) see no reason to doubt that the charge of Sir Charles Hedges, judge of th& High Court of Admiralty, to the grand jury, as reported in the case of Mea V. Dawson '' and which was made in the presence and with the approval of Chief Justice Holt, and several other common law judges, contains a correct exposition of the law as to what consti- tutes piracy _;"u/'e gentium. He then says, "Piracy is only a sea term for roubery, jjiracy being a robbery within the jurisdiction of the Admiralty K the mariners of any ship shall violently dispossess the master and afterwards carry away the ship itsolf or any of the goods with a felonious intention in any place where the Lord Admiral hath juris- diction, this is robbery and piracy." Of course there can be no dif- ference between mariners and passengers. PLEDGE A«E9iT PEiEDOINO GOODS OF HIS PRINCIPAI.. AND AGENT : Usdem verbis. See Principai* VOI^LATERAIi SECURITY. Flint v. Walker 54. Four persons having bought a general herd of cattle^ two of them obtained irora a firm their endorsements on promissory notes, and as collateral security wrote them the following letter : " In oonsequeuce of your complying with our request, to endorse our bills for the purchase of Mr. J's herd, we hereby make over the said herd to you, requesting you to give Mr. Darlot (one of the four persons above mentioned) instructions how to dispose of the herd, and remit you the proceeds, until by such remittances your endorsement is covered." The herd was delivered to Mr. Darlot. The firm gave no vistructions, and had nothing to do with the sale oi the herd which was sold by Darlot who made away with the proceeds. In a suit against the firm by the two persons who had pledged the herd as collateral security, to recover the value of the herd, the latter were held not responsible as they never had the possession of it, and the letter operated only as a pledge or collateral security. 1 Uong Kong, 1873 .Juno 19, L. R. V P. C. 179. 2 13 State Trials 454. 3 Calcutta, 1847 Dec. 9, V Moore 179. PLEDGE 609 COXNTKl'CTIVK DKMVEUY. YOUNO V. L.\Ml!Kltr ' 55. (xoocls imported from Ena'laud Avero cousigiu'd to a commercial firm iu Quebec, and stored iu the Customs warehouse there, according to the customs regulations, for freight, duties, aud storage. By a coutract iu writing they were subsequently pledged by this iirrn to another one of the same place for advances made to them, and a note of such transaction entered in the book of the chief officer of the Customs, specifying the conditions on which the loan was made, with a recpiest to sixch olh(.'er to hold the goods subject to the orders of the latter partnership, they paying the duty aud storage charges before ri'inoval. A creditor of the lirst iirm obtained a judgment aiiainsr them and seized the goods in bonds, but the execution was opi^osed by the pledgee, who asked the court to release the goods from seizure on the ground, that by the above con- tract the property of the goods in question was conveyed to them to secure repayment of the advances made liy them. The Superior court maintained the opposition. The judg- ment was reversed by the Court of Review and the last judgment was confirmed iu appeal. The Judicial Committee held, that the cnrcumstances of the case and the dealings of the parties constituted a cons- tructive delivery, and that the judgments dismissing the said opposition could not be supported. The judgment of the Court of Appeal was reversed and that of the Superior Court restored. KE$(T4>RATIOX OF Sex^cal v. Pauz£ ' 56. Where debentures are pledged as security for mon(.'y advanced, and the debtor tenders the amount of the debt, aud th ■ creditor is unable to restore it, having parted with it, and treated it as his own property, the tender cannot be regarded as insufficient, under article 1975 C. C, because the owner owes other debts which became due before the one for which the things were pledged, and the creditor must pay the value of the debentures at the time of the demand, and, unless the contrary is proved, the value to be paid is their nominal or par value. Loud Macnaghten, p. 039 : — On behalf of the appellant it was argued that the judgment under aj^peal ouglit to be reversed and the action dismissed on two t;rounds. 1 Quebec, 1870 Jniiiiary 25, V! Moore \. S. 40t). 2 Quebec, 1889 July 27, L. R. XIV Appeal Casea G37. 39 610 PLKDGE III I KENTORATIO.V OF In tlie tirnt place, it was contended that the tender was insuffi- cient, and that, consequently, the action could not be maintained. in dealing with this point Dorion, C. J., observes that this defence was not pleaded, and that the Court of Review decided a question which was not in issue. In these observations their Lordships concur. The learned counsel for the appellant relied upon Article 1075 of the (!ivil Code of Lower Canada, which provides in reference to a tinny pledged as security I'or a s))ecitic debt, that " If another debt " be contracted after the pledging of the thing, and become duo •' before that for which the pledge was given, the creditor is not " obliged to restore the thing until both debts are paid." In connec- tion witii this Article they pointed out that it was established in evidence, and not, in fact, disputed, that other debts had been con- tracted and did become due during tiie currency of the promissory notes, and they argued that it was incumbent on Pauzd to tender a sum sufficient to cover the amount of this indebtedness, as well as the principal and interest secured by the promissory notes. In this view their Lordships cannot agree. As the learned Chief Justice observes, Pauz(5 complied strictly with the terms of the contract of deposit by tendering the amount due in respect of the promissory notes. Sendcal, no doubt, might have claimed to hold the deben- tures until both debts were paid if he had been jirepared to restore the debentures. It appears, however, that he had either parted with them already or was fully resolved at the time to treat them as his own property ; he had no intention of restoring them in any event. In these circumstances, though ho alleged that other sums were due to him from Pangman's estate, he did not set up by way of defence the right which Article 1975 gives to the holder of a jiledge. Obviously he could not have done so honestly. PLEADINa POLICY See Practice. See Insurance. POSSESSION See Chattel mortgage. Prescription : eodem verbo. ORAXTM OF C'BOWX J.AXD^i. Doe DEM. Devine v. Wilson et al ' 57. A possession of thirty years of crowu lands, under a grant made by the Lientenant-Grovernor of New South Wales, in 1794 and 1799, though imperfectly described, is an unimpeaehed title. 58. Although it has been held ' that if in the King's grant, there be no description by name, abuttals, etc., the 1 New Soutli Wales, 1855 July 25, X Moore 502. 2 lliingeiford'a case, 1 Leon. 30 ; Siockdale's case, 12 Co- Reg. 86 ; Brand v. Todd, Noy. 29. f H« POSSESSION Gil I «RA>iTN OF CK<>W.\ I.AMIM. griiut is void, but whou a crown i^raut refers with cer- tainty, though in /mis only, that rerorcnce will be sullicient. 59. ir by one construction a crown grant Avould be null, and by another it might be made good, the latter (should be adopted. GO. ir grants be very ancient, and the lands have been enjoyed according to the grant ever since the making of it, and rents have been i)ai(l for, in such case, the grant may be good, notwithstanding some legal dtifect in some of these particulars, as in absence of livery, for from i)osse.s8ion, livery, will be ]>resumed. See In.i UNCTION : iiadem verbis. iNJi'Xi'Tiov FOK TiiKSPASN. See In.iunction : /lossession of crown lariils. OF I'KOW.V lijiXDN. Attorney Gknkual uf Neavfoundland v. Cuddily ' 61. A person in j)ossessiou of crown lands under a license obtaincid for valuable consideration, may opjiosi! the invasion of his right by the crown in the same manner as he could against any other person, and such a possession during more than sixty years is a bar to the claim of the croAVU. iiee ActiuiE.sCENOE : mulivided possession. rOWER OF ATTORNEY See Attornf.y, riiiNciPAi. and agent. rUACTICE AcuiiKHC'KNC'K IX juDCBiEXT. Scc ACQUIESCENCE : Hsdevi verMs. AC.1IKXT OF PIUUKKDIXON. Rainy v. Hiiavo ' tJ4. Where there is a variance between the declaration and the evidenre, the prop.r time to apply to amend the declaration is at tlie conclusion of the plaintilFs case. AMKXDMKXT OF .IIIMJMKXT. The Moxtkkai, Assi kance Company v. .\rc(iiLLivRAY ^ t).'). An Order in Council founded upon the report of the Jmhcial Committee on an appeal from the court of Queen's Bench, in Loioer Canaila, simply dir(>cted the reversal of the judgment. Upon the order being transmitted to Canada, the court of Queen's Bench recorded it, l)Ut was of o^iinion that it was unable to act further, on the ground, that as a court of appeal, it had no jurisdiction to make, of its own accord, such an order on the court below, as would give effect to the jiidgmeut of Jvidi<'ial Committee. Upon petition by the appellants, the Judicial Committee varied their judgment by adding to the reversal of the judgment of the court of Queen's Bench, a further direction, that the judgment of the Superior court, be also rev»Msed, and the verdict given vacated, and that the cause be remit- ted back to the Superior court, with directions to that court to issue a venire facias de novo. Hee Judicial Committee : pov^tr of rectify inff error in judgments. APPEARANCE. Harvey v. Owners of the Screw .Steamshii' " Kixine" * 66. According to the rules of Practice of the court of Admiralty, proctors are not required to produce a proxy until called upon to do it. Dr. Lushinoton, in the case of The Wilhelmine, 1 W, Bob. Ad. Rep. 337, citea by their Lord,ships : — Xow, looking to the ancient 1 4 East, 522. 2 Sierra Leone, 1872 June 11, IX Moore N, S. 36. W Lower Canada, 18(Jl Feb. 8, XIII Moore 125. 4 V. A. Malta, 1871 Xov. 16, L. R. IV P. C. 68. PRACTICI (IIH APPKAHAXCR. jmulice of the court, it in yiorfcftly oloar that tho nilos, witli I'cfiiird to iiiijR'anincoH in tlio ("uiiri of iulniirnlty wcro origin- iilly llie saiuo as two now adoptdl in tlic I'lH'li'siasticai courls. In llic nioro modern practii'o of this court tiicse rules, ii is true, iiave been relaxed for tho convenience of the practitioners, and lor a jieriod of ])rol)alily not less than two hundred years, proctors have been ])erniitted to apjiear on behalf of parlies suing witiioul being called upon to exhibit any proxy, as is the indis- ])ensalile custom in the ecclesiastical courts. The lir^t question, tiien, whi<'h I must considei* in the present instance is lhi>: what !.-• tliC duty and ivhat is the responsibility attached upon a ])roctor who so appcar> without exiiibing a ])roxy? Upon general principle, 1 ap- ])rchend that the court is entitled to ex))ect from such protoi' when he does a))]iear that he be duly authorized by some jierxm having an interest in the cause in issue, or that he should have a justiliable and hli'ong ground for believing that the individual for whom he a])]iears has such an interest. 1 apprehend further, tliat at any period oi'tiie cause and at any time before the case is dismissed out of the Court, the Court has a right to call upon that proctor to state not generally but specially by name tho whole of the parties for whom lie is authorized to appear. The authority of the court to make the demand upon the j>roctor I conceive inherent in the jurisdiction of thi> t'ourt in common with all other Courts and is absolutely essential to the due administration of justice for tho purpose of pre- venting unauthorized litigation. If it were otherwise what would be the coiise(pience in regard to the proceedings in this Court. The con- sequence would bo that proctors might a2)pear for individuals who either were not in existence or for persons who gave no authority or who assuming the names of others might take tho chance of a decree being made in their favour without at any time being ol>- noxious to the consequences of an unsuccessful litigation. AVni ALTERAM P.iRTKn. WiT-Lis V. Sill G. Gipi's ' 67. The governor and couucil of a colony having le- moved a .judge, without giving him notice, or affording him an opportunity of answering the charges brought against him, upon which the order of amotion was founded, such order was held illegal and reversed. CANf: KKFKUKED TO EXPERTS. MULLICK V. MULLICK ' 68. The Privy Council referred this case to the Master to inquire whether there was any religious building amongst the Hindoos less expensive than a temple. The report of the Master having been found by their Lordships not to agree with the intention of the testator, it was referred 1 Nuw South Wales, 1846 July 8. V Moore 379. 2 Calcutta, 1829 June 23, I Knapp 245. (il4 I'UACTICH Ji^ If I'ANt: Hht'i:ilHKI» TO KXI'KUTN. ha(!k t(» i\w MuKt«M' Avitli (lircctious to rt'dm-d tho allowaiicij lor this object to what in UHUul siiid proper in siu:h u caso as the preNeiil in that cotintry. IIUTflllNMON V. (rir.r.KSI'IE ' <)!>. The .Tndii'ial Committee havinty, in IH.S8, referred this eause to an tiXiKU't to Hetthi the <|ii(!stion of iart, and that »*xpert havini? reported acfordin<»' to th(^ interlocutory Order appointing him, their LordshipH reliined to issue a coriimis- sion to examine witnesses to prove I'acts detlared not pertinent by the expert Hirofc.iA V. Camii.i.kik '' 70. li was h(dd in this cause, that it is not competent I'or the parties in a suit, where tlien* have been oxjx'rts ap- pointed, who have reported, to pro])ose, at the htiiriiu'' oi' the appeal, a I'resli rei'erence to experts lor the pur])os»! of Huy'fresting another schemt' than the one proposed in a suit for th(^ division of the property in litigation. CANK KK.H1TTKD TO €(»VUT IIKI.OW. FaiXlONE V. TA(l[,rAI'KllHl) •'' 71. An action of damages for breach of to coi'nr hki.ow. reversed tho iindiiipf of thi^ Koyiil Coiirl <>[' .Ti-rney in her liivoiir, iind remitted the east^ Ixiek to that court i'or I'lirlher proof upon th(iH« pointH, with ii deehiration, that if the evideni(« estahliKhed the title of the wife of the insured then that she liad a preferential title, hut, if otherwise, her title was to bo considered as Hu})se(juent to that of tlu! creditor on the policy for tin; i)rincipat and interi'st of his debt. See KviDKNClC : new evidence, iNsohVKMV. Wai.lack v. McSwkknv ' 78. When the pleas are inconsistent, multifarious aiid<'ni- l)arrassini^, they oujyht not to ])e set aside, hut accordinn' to the nd'S of practice, the court should order these pleas to be amended, or in default, to be set aside. The case was remitted back to the court below for the puri)ose of irettiuf^' the pleas amended, and in default to be; 'et aside. DVSI)\ V. (iillU'llAV ■' 74. The appellant had oppo,sed to the respondent's action a plea of (compensation. Thly. CEHTIi'K'ATt: «»F TIIR COCRT IIKI.OW. LeI^uehnk v. Nieor.i.K ' 7'). When the Privy Council makes a reference to a court beloAV to certify as to a point of their practice, their cer- tificate cannot be disputed, unless a petition prayino- for a fresh reference be presented, and supported by alHdavits impeaching the accuracy of the certicate. t'oyvt.vsinsH. BoSWELL V. KlI.HOHN * 70. Although the Judges in Lower Canada, under the old French law, have power to reject or modify the conclusions in the pleadings, i)rovided they do not grant ultra pefi/a, yet (iven if the court is enabled to change the remedy sought by the action and administer relief entirely different from that which the action prays for, such power cannot be exercised in such a manner as to change comj)letely the 1 Nova Scotia, 18G8 July a, V Moore N. S. 2.14. 2 .JiTsiy, 1884 June Ki, L. Ji. IX Appeal Cuscs 72G. .3 JiMsvv, 1830 July 10, 1 Knapp 257. 4 LoweV Canada, 1862 Feb. 7, XV Moore 309. (HO PRACTrOE It ;i ' ; '■ I H: nature of the aetion, where a plaiutiif, having a choice l)et\veen t"\vo renieclios, has exercised his election by the form in which the action is brought, as, when a party who instead of demanding the performance of a contract, takes an action of damages for breach of contract, the judge cannot order the perfornxance of the contract. Lord Chelmsford p. 32C : — The plaintiffs demand damages for lireacli of the contract on the refusal of the DettMKlunt to acee])t the hops tendered to him. The Court has converted the proceeding into a suit to inforce the ])crformanco of the contract, which they order or intend to order bj' tlieir judgment to bo carried out. This the respondents contend they had a right to do, and they referred to a passage in 4 Guyot's Repertoire, verb. Conclusions, p. 351. which the Court was said to have acted upon in a formei- case, that " lejuge pent rejeter, accorder ou modifier les coriclusions prises pjar les pnirties." Whether the power thus described can be pushed to the extent of enabling the Court to change the nature of the action, and to ad- minister relief entirely ditferent from that which is sought by the plaiiititts may be extremely questionable. But if such a power exists, it can hardly be exercised with propriety in a case Avhere a partj' has the choice between two rer,jdies. Assuming that the plaintiffs might have instituted a suit to enforce the performance of the con- tract, it cannot be doubteil that they were at liberty to waive this form of proceeding, and to bring tlioir action to recover damages for breach of contract. And when tliey have deliberately jjreferred the latter remedy, it ought not to be in the power of the Court to force upon them the other, to which they made no claim. Their action is in form and in substance a demand for damages merely for the breach of the contract in not accepting the hops. In such an action it was not disputed that the jjlaintiffs could not recover the price of the hops, but only the difference between the contract price and the market price at the time of the breach of the agreement. Brown v. Les CvRt et Marouilmers de l'QClvre et FaBRIQUE de NoTRt>I)AME DE JroNTU^AL ' 77. A plaintiff may generally obtain a jiidgment for less than that for Avhich he asks, and for relief in a different manner and form than that for which he has prayed, pro- vided it is within the scope of the prayer. See the remarks of their Lordships, Mandamus : form of the Writ. CONFKMSIO.V OF JVD«MENT. The Colonial Bank v. Cazabon ' 78. At'cording to the practice in Trinidad as regards cognovits, a confession of judgment was signed by the 1 Quebec, 1874 Nov. 21, L. R. VI P. C. LIT. 2 Trinidad, 1851 June 21, VII 412. PUACTICI-] «. 3 Lower Caimda, 1858 June 21, XII Moore 47. 4 Ceylon, 1870 July 10, VIII iMooi-e N. S. 90. PRACTICE 619 EFFe<'T OF JCDOMENT. wise there would be ,iO end of litigation, and the humblest court in the kingdom might be called on to sot aside the decision of the highest. [rregidarity, error of fact or of law, must be shown in the suit itself, must bo certified by application to the origiiuil court or hy way of appeal from or review of the judgment. In this case the fresh suit is not by the original defendant, but by a co-executor and co-devisor. That makes no difference. It Avould cause most incal- culable mischief if it were once supposed, that un action and judg- ment against an executor, or other legal representative, as such is not as binding against the testator's estate as any action or judg- ment against any defendant is binding against him. The only ground on which it is competent for any other executor, or any person interested in the estate to question in a new suit the proceedings in a former action which has resulted in a judgment against the pro])erty of the testator, is fraud. Fraud will suffice tc, open anything. If a creditor of a person who ha|ipens to be executor, dishonestly obtains judgment and execution against the assets, when his claim was only against the executor personallj', such a transaction can be unravelled. Pitts v. La Foxtaink ' 85. When a decision of the .Tiidicial C'oinmittco has b(M?u reported to Her Majesty and has been sanctioned, it becomes the decree or order of the final court of appeal ; and it is the duty of every subordinate tribunal to Avhich the order is addressed, to carry it into execution. final judgment. Bfj-son v. Belson " 8'>. An order or judn:ment which cannot be modified or affected by the final judgment is not an interlocutory judg- ment, but a final one. Thus a judgment directing the infant childriui of the parties, to be left jirovisionally in the cus- tody of the mother, pending a suit for a s(>paration, is a de- finitive sentence quoml the custody of the children, as the ultimate decision in the suit cannot affect that custody. ENKOmENT OF JVOCSMEXTS. IlysLoi' V. Jones ' 87. According to the well established practice o'" the court of Chancery, in the island of Jamaica, ajudg.nent may l)e ])ropcrly enrolled by one of the defendants, five months after its date. 1 C. 0, Constiuitiiioiile, 1880 Xov. 20, L. R. VI Appeal Cases 482. 2 Jer-ie.v, 1850 Feb. 22, VI ( Moore 30. 3 Jain.iica, 1839 Miiy 9, III Moore 15. wifWrn 'S, f.20 PRACTICE ixtekvextion. Orphan Boarb v. Rekxan ' 88. The principle of the law of iuterveutioii is, that if auy third person considers that his interests will be alfected by a cause which is ])ending, he is not bound to leave the care of his interests to either of the litigants, biit has a right to intervene, or be made a party to the cause, and take on himself the defence of his own rights, provided he does not disturb the order of the proceedings. 80. The intervener may come in at any stage of the cause, and even after judgment, if an apjieal can be allowed. ( 'auter v. Molson et vife versa ^ 90. Where a judgment creditor seized the revenues of a substituted properly, a subsequent institixte, n-nvi;, or the substitiite, appele, has no right, under article 15-4 of the Code of civil procedure, to intervene, as the proceedings, res judicata betAveen the seizing creditor and the first insti- tute, greve, in possession could have no effect against them. Lord Watson, p. Gl-i : — Then as to the appeals presented by the intervening petitioners. Both of these dcpoml upon precisely the same considerations and may be disposed of as if they were one ai)])eal. The petitioners have not, and do not assert that they have, any direct or legal interest, either in the rents of the St. James street property, or in the dividends on the 148 bank shares, -which accrue and be- come paj-able to Alexander Molson during his lifetime. On the other liand, it is not disputed that the\- have material interests, en- titling them to resist any attachment of the corpus of the property or of the shares, at the instance of a creditor of Alexander Molson. which might have the effect of defeating their right as substitutes, in the event of Alexander Molson's death. They do not, however, allege that the writ of saisie-arret will attach either the corpus of the 1-18 bank shares, or the dividends accruing upon them, after the death of Alexander Molson. All that theydo allege is, that these shares as part of the residue of ,1s estate are subject to the sulistitu- tion in their favour contained in John Molson's will, and that the dividends payable to the institute are, in terms of that will, not ar- restable. The only interest in respect of which their right to inter- vene in the present litigation is maintained, is the aj)prehension that some points may be incidentally decided, between the arresting creditor and Alexander Molson, which may prejudice their rights at simie future time. It is not said that any judgment in this suit can possibly enable tiie creditor to attach the estates which they may eventually take, assuming the sub.-titulions in their favour to be valid ; nor is it suggestetl that anything decided in this suit between 1 he judgment debtor and creditor, with regard to the validity of these substitutions would be binding upon them as res Judicata. 1 England, 1829 .July 17, I Knappdl. 2 Qneboc, 188J July 4, L. R. X Appeal Cases G64, If PEACTICK 621 I!«TKnVKXTIOX. Whiil thoy do plead is that such a decision miglit atford auobjec tional.)k> preocdeiit, if and when they require to assert liieir rights judicially, and consequontlj', that they have the right to intervene. That |)lea appears to their Lordships to be untenable. Sect. 154 of the Procedure Code, which regulate this matter, gives the right of in- tervention to the parties who are "interested in the event of a pend- ing suit." The event of the suit can only refer to the operative decree which may ultimately be given in favor of one or other of the ])arlies to it, and not to the views of fact or law which may influence the court in giving the decree. To admit the appellant's plea would involve the admission of a right to intervene on the part of every person who had an interest in preventing a decision being given Inter alios, which might be cited as an authority against him in some other suit. Section 154 appears to have been framed for the very jnirjiose of limiting the right of intervention to those persons who can show that a linal judgment may possibly be ob- tained in the suit, which will enable the party who obtains it to possess himself of their estate, or otherwise to impair their legal rights. Their Lordships are accordingly of opinion that the judgments appealeil from ought to l)e affirmed, and they will humbly advise Iler Majesty to that efl'ect. There will be no order as to the costs of any of these appeals. Kino v. Pinsonneault ' 91. Whou a suit has been settled by a " /rnnsaction,'' although a discoutiuuauce of the action has not l)eeu fyled of record, a uew action can be instituted to enforce the transai/tion ; and a plea to the etfect that the second action was not maintainable as long as the first was pending, is not a good plea ; it is sufficient that the plaintiff offers to discontinue th(? action as soon as the other party has fulfilled the conditions of the transaction. X i 1 mw-f. .niM>DIRECTIO.V OF THE JVDOK. The Great AVestern Eailway Co. v. Braid & Fawcett ' 92. The action was to recover damages against a railway company for injuries received, by reason of w^ant of skill in ttie construction and negligence in the repairing and maintaining of the railway. The defence of the company WIS that the accident was cavised by a storm of such an ex- traordinary nature, that no experience could have anticipated its occurrence. Under such issue the facts, as atfecting the ([uestion of negligence in the construction and maintenance 1 Quebec, 1875 .March 2, L. R. VI P. C. 24.5. 2 Upper Canada, 1863 Feb. 7, I Moore N. S. 101. C22 PRACTICK ill IP It' mi I!fv if f niN-IIIKI'X'TIOK nV TIIK JlinOK. of the railway, ought to havo ])oeu left by the jiidgo dis- tiiiotly and pointedly to the Jury. But the Judicial Committing being, uotwith,standiug the oinis.siou ol' isuch direction, satisfied with the verdict which given otherwise would have been wrong, refused to grant a new trial, adopting the rule of th(^ Court of Exchequ(»r, laid down in Ford v. Lure//, 80 N. L. J. N. S. Exch. 352, that non direction is only a ground for granting a neAV trial, where the verdict is against the weight of evidence. StAC.E v. {iRIFriTII ' 93. All assistant master of the goverument school, at St. Helena, took an action of damages against the com- manding officer for a libel contained in a letter writteji by the defendant to the colonial secretary of the island, stating that the plaintilf was drunk and disorderly at a certain time and place. At the trial, the letter was neither proved nor given in eA'ideiice. The .judge told tlie jury that they had to find, whether it was a priA'ileged communication or not, and directed them to decide whether or not, the de- fendant had taken sufficient care to ascertain the truth of the statement made. The jury found for the plaintilf with damages and the judge concurred. Held, that the proceedings were altogether irregular and judgment was arrested, the judge haA'ing mistaken the functions of the jury, first, in leaving it to them to d(>t»>r- mine whether the alleged libel was contained in an official document and whether it was a privileged communication ; and, secondly, in not leaving it to them to say, whether the letter, if published, was bond fide. If so found, then it was for him to determine whether, under all the circum- stances, it was a privileged communication or not. La.mukin v. .SoiTH I'Iastkkn Rv Cii. ■' 94. In an action of damages against a railway cG.npany for injury done bj^ the negligence of their servants, there is no misdirection on the part of the judge in having left it to the jury whether all was done which was reasonably and practically possible under the circumstances of the case ; and inasmuch as the damages were not of such an excessive character as to shew that the jury hnd been either infiuenced by improiier motives or led into error, there ought not to be a new trial. xEw »:vi»i:xt'K. See Evidence : mdem verbis. 1 St. Holeim, 180n Fob. 8, VI Moore N. S. 18. 2 Quebec, 1880 Feb. 3, L. R. V A\^r.-ii\ Ua.sej, 3V2. PRACTICE 623 NOTES OF THE JVUOE IX A JTDKY TRIAL. POWNALL V. ALvsOOf-h ' 05. Where in a jury trial, a writ of error h;is been takeu, 1111(1 an alhdavit is fyled stating that one of the allegations in the exceptions to the direction of the judge is iniorrecl, and where the judge being called upon, by the court of Appeal, admitted the statements of the alhdavit, declaring that he had sealed the bill under an erroneous impression, the I'rivy Council held that the judgment of the court of Api^eal should not have simply ordered that th(^ ])ill should be taken otF the file, but that the bill ought to have been taken off for the purpose of having it amended l)y the judge's notes. NON-MiriT IX JIJKY TKIAI.. lIlTCUINS V. I'^OLLIxaSWOUTU' 96. Error will lie on a non-suit. Newell v. Pld^eon, 1 Sir. 235. 97. A bill of exceptions would not lie in a case where, upon the trial, the judge directed a non-suit, the plaintiff not appearing w^hen called. Corsur v. liced, 21 Fmiv Journtd Q. B. 18. 98. Non-suit will not lie upon a wrong venue, if the question is not raised in the pleadings. GiBLIN V. Mcilui.LEN ' 99. The Judicial Committee held that, in a trial by .jury, it is the duty of the court, when at the close of the plaintiff's case there is no evidence upon which the jury could reason- ably and properly find a verdict, to direct a non-suit, and that in every case, before evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally any evidence, but whether there is any evidence upon which a jury can properly proceed to find a verdict for tht> jiarty producing it, upon whom the onus of proof is imposed. NOTii'E OF ACTION. See Corporation : imlem verbis. N1J9IBER OF COUNSEL TO BE HK.VIID. In re Dow.me and Arrindeli, * 100. The rule is to hear two counsel on each side. 13ixt Avheii there are several parties in a suit having each dif- 1 Antigua, 18.33 Nov. 29, HI Kuiipp IGl. 2 .lamaica, 18.')2 June 16, Vll .Moore 228. 3 Victoiia, 1808 Doc. 3, V .Moore N. S. 4.35. 4 British Guiana, 1841 June 21, III Aloore 419. m^mmmmnmimim'mf'**rff^ 624 Pii ACTIO E (■I i NrnnRR of lorNNKL to dk heard. fereiit interests, the rule is to be construed so that each party is entitled to have two eoiinsid heard on his behalf. Lord liRoudiiAM, 1). 41'J : — Oljserving', tluit if thoro are several parties in one ap]ieal who say tliey are in ditt'erent interests, then if it is quite elear to tlie court that they really are in ilitt'erent in- terests, the practice is to liear them hy separate (Jounsel. Hiil that if theyare in the same interest, then the court makes tiiem arrange together so as to be heard hy one counsel. But that there being in this case two iippeals, eacli Appellant had a right to be represented by two counsel, and their Lordshi])s could not limit them to one though the facts and arguments usetl might be the same in both cases. OliJKCTIOXN XOT KAISKD I\ TIIK ('(tlTIlT liKI.<»W. KUANKLANI) V. McGuSTY ' 101. From the remarks of f^ir John Leach, Master of the Rolls, it appeared that objections cannot be made to a juda'meut, at the hearing" before the Privy Council, which haA'e not been made in the court below. SUMBOO ET AL. V. !N"aKAINI ET AL. ' 102. The Judicial Committee must take notice of the laAV of the country from which the appeal comes, and decide according to it ; although it has been overlooked by the court below. DONEGANI V. DONEGANI ' 103. The Judicial Committee will not notice any alteration of rights that may have taken place between the parties in consequence of an Act of the provincial legislature, but which does not appear on the record. Orphan Board v. Eeenax * 104. An appellant cannot object before the Privy Council to the hearing of an appeal by argueing that the judgment against which he appeals is void for want of parties to the suit ; that objection not having been made in the court below. Having appealed against the judgment and treated it as effective, he will not be permitted to raise such objec- tion, for the first time, before the Committee. 1 Oemera-a, 18S0 July 10, 1 Knapp 274. 2 Bengivl, i63J Feb. 6, III Knnpp 55. 3 Lower Oannda, 1835 Feb. 2, III Knapp 63. 4 England, 1829 July 17, 1 Knapp 83. fe I'K ACTIO K G25 OBJK(;TiO:VN NOT RAISED IN THE COURT BEI.OW. Tm; HoAuu ok Oui'iian.s v. Khaeoki.in ' 105. The Judicial Committer will not outortaiu technical ohJ(3ctions not taken in the court below, when they are merely of i'orm, and do not affect the substance of the matter in controversy. BnwEs V. The (.'ity ok Toiionto ' 100. An objection that all the parties who are interested in the action, and .should have been called in, are not in the suit ought to have been made iu the court of first instance. A court of appeal will not treat the suit as defective on that ground when the objection was not taken in the court below. Dkvine v. IIali.owav " 107. An objection not raised in the court below cannot be taken in the appellate court, unless it is patent upon the face of the proceeclings, so that the appellate court can take judicial notice of the objctiou. Mackay v. C'o.M.MEiiciAi, Hank OP New Biunswick ' 108. The Judicial Committee will not decide a case or send it lor re-trial upon points which appear to have been raised for the first time at their bar, and which possibly may have been treated as agreed upon or Loo clear for argu- ment by the court below. Garden Crir.r.Y United Quartz Mining Company v. McLister ' 109. When a new defence is raised in the argument before the Judicial Committee, although their Lordships may be satisfied that it is a good answer to the action, they will not reverse a judgment upon such grounds as it would be a great injustice to the res[)ondent. Sir Barnes Peacock, p. 57 : — Their Lordsliips uro not disposed to hold parties too strictly to their pleadings in the lower court ; but they consider that it would be an act of great injustice to allow defences to be set up in appeal which have not been suggCMted or alluded to in the pleadings, or called to the attention of the court below. They do not, therefore, wish to be understood that by hearing the learned counsel for the appellant, and by expressing an opinion ujion points which were not raised in the court below, they would have t'olt themselves ju>litied in reversing the decision of the court 1 liritish Guiana, 1855 June 16, IX Moore 438. 2 Uppei' Canada, 1858 Feb. 15, XI Moore 403. 3 New South Wales, 18G1 Feb. 7, XIV Moore 290. 4 New Brunswick, 1874 March 14, L. R. V P. C. 394. 5 Victoria, 1875 Nov. 9, L. R. 1 Appeal Cases 39. '^'miwmHmmmmm m M f. 62fi PRACTICE •fe l.< .. oaiFX'TIONS NOT RAISED IN THE <'OlTRT BKLOW. bolow, if they had conMidored that the points thu« raised constituted u defence to the plaintiff's cliiims. CoRpouATioN OP Adelaide v. White ' 110. It was argued by the appellants that the judge below should have directed the jury that the action was not maintainable, because it was not brought within three months from the trespass complained of, and because notice of action had not been given. Their Lordships refused to hear any argument on those tAvo points, the same not having been raised in the court below. The appeal was dismissed. oimectionm to the right of appeal. Aldridoe v. Cato '' 111. It is too late for the respondent at the hearing to take an objection to the competency of the appeal, on the grovind that the subject matter of the suit did not involve the prescribed appealable value ; such objection not having been taken in the respondent's case. The proper course Avould have been for the respondent to move, in the first instance, to dismiss the appeal on that ground. Sauvageau v. CtAUTHIER ' 112. Where leave to appeal has been unduly given, the proj)er course is to come before the Judicial Committee before any expense has been incurred, and to apply for the dismissal of the appeal. Such an application if delayed till the hearing will only be granted without costs. If there be special circumstances in favor of granting special leave to appeal, an application for such leave will be entertained, but, if it is granted, fresh security for costs must be given. MussoRiE Bank v. Raynor • 113. The same principles set forth in the above two cases were maintained in this appeal. Sir Arthur Hobhouse, p. 328 : — As a general rule, the proper course, in a case like the present, is for the respondent to move as early as possible to rescind the Order in Council ; and their Lord- shijjs think it right to call attention to the opinion exi)ressed in the second volume of the Law Reports, Indian Appeals, p. 82. It is said thus : " In their Lordships' opinion an objection of this kind ought 1 South Australia, 1886 March 4, LV Law Times N. S. 3. 2 Natal, 1872 June 28, IX Moore N. S. 71. 3 Quebec, 1874 May 5, L. R. V P. C. 494. 4 1882 March 21, L. R. VII Appeal CasPS 328. PRACTICE 621 OBJErTIO!VS TO THE RIOIIT OF APPEAL. to be taken by tho respondontei as early as the matter is Idought to their notice, i'or the plain reason, that if tho leave to appeal is on that grouml roHcinded, no further costs are incurred; ami it Ih wrong to leave the objection u:>tr the hearing of the appeal, when tho record has been sent from Ini i.i, and when all the costs attend- ing tlie hearing have been incurred. " See Appeal : special applications. ORDER TO HTAV PROC'EEniNOS. Naurab SiDiiEE MfzuR Ali-y Kuan v, Rajah Oajoodiiyaram Khan ' 114. The Judicial Committee Avill ouly order a .stay ol" ])roreediiigs iu the court below, iu a peudiug appeal from an iuterlocixtory order, ^vh.en, first, a serious injury ^vi\\ be the result to the party applying if the order wii.s not given ; secondli/, when the application is made promptly at the first stage of the proceeding. See Appeal : sjiecial applicMtioHS. p.irtien in contempt. Clrtis v. Curtis ' llo. The female defendant in a suit for divorce on the ground of adultery being absent and in contempt of court, her attorney tendered a defensive allegation, but the court rejected the allegation and refus-^d her the right to plead so long as she resisted the orders of the court. Lord liKoroii.VM, p. 25ti:— It is a general rule of all courts, that no jiarty shall be allowid t'^ take active proceediiii;'^, if in contempt. It appears to us, not merely the right of the ]iarly to object to the admission of this defensive allegation, but it is the right of the court. The court has a right to say that it will not allow u process issuing out of the court to be treated with contempt. PEEADIXOS. Moore V. Moore ^ 116. Held, that a husband has the right to plead, in a responsive allegation, the adultery of his Avife as a bar to an action for conjugal rights, unless the husband has con- doned or been a party to the concealment of acts of adultery. Ml'RPnV ET AL. V. (tLASS * 117. The rule that pleadings are to be constructed most strongly against the party pleading is subject, both at law 1 Bengal, 18G5 Nov. 28, L. R. I. P. C. 8. 2 Canterbury, 1845 June 14, V Moore 252, 3 Canti'rbury, 1840 Feb. 6, III Moore 84. 4 Victoria, 1869 Feb. 19, XX Law Times N. S. 461. 628 I'RACTICK Mild ill equity, to an exception us to th(^ plt;adiii<>' of iriatters whith uro pet'uliarly -within the knowledge of the opposite party. (iloVANM D.MMETO V, JaMES WU-LIE iV Co. TllE '" I'lEVE SlII'KRHiKE " ' IIH. A petition or protest filed against the jurisdietion of the Admiralty court should contain the facts which sheAV want of jurisdiction. ' National Bank of Austualasia v. United IIanii-in-IIand AND Band ok IIopk Company ' 119. The action was to set aside certain mortgages given by the directors of the respondent to the appellants, and also certain deeds of sale of the lands so mortgaged, which the hank, assuming to act in the exercise of the powers of sale in tlu'ir securities, had given to various purchasers, a.s fraudulent and void, and also because the appellant had been paid their hypothec in full. The appellants denied the fraud, and alleged that they had become OAvners of the properties mortgaged by proper and legal titles set forth in the defence. Held, that the issues raised were not merely mortgage or no mortgage, but, whether, by means of their acts, subse- qiaent to the impeached mortgage, the appellants had ceased to be mortgagees, and had become absolute owners. Held also, that the action should not have been dismissed because the bill did not contain a prayer for redemption, and that the court was bound to try all the issues. Monl- ifomeri/ v. Ca/lani/, 14 ciim. 79 ; !/7/e Incorporated Sorietif v. "Richards, 1 D \ War. 158. JUkclay v. Bank of New South Wales ' 120. The action was for breach of contract and damages. Without denying or admitting the allegations of the declara- tion, the defendant pleaded as a defence to the action an agreement alleged to have been made between the ])arties in settlement of the difficulties between them, but the plea did not specially aver that this arrangement was made in satisfaction and accord of the causes of action set forth in the declaration. The Judicial Committee held, that the plea was bad and 1 Admiralty, 1874 March 21, L. R. V. p. 0. 48a. 2 Victoria, 1879 .Jane 14, L. R. IV Appeal Oases 391. 3 New South Wa»os, 1830 Feb. 12, L. K. V Appeal Uasej 374. I'lJACTlCK 628 pi.KAniwnN. maintaiuod a domuvrer to the pica, on thi^ jfround that it did uot in terms state that the agrt't-mtMit set out iu the l»lea was accepted by the parties in airord'aiul satisliution of the causes oi' action iu the derlaration uicnlioued. POWKH TO KECTIFY KRRORH I.V jriMJMKXT. AIITTEE ; iisdem verbis. Sei: JUDIClAIi CoM- pkixtkd cane. Jackson v. Puotkho ' 121. There is no rule requirini'- the resjiondeut to print his case, beibre applying to dismiss, when ihe ai)peal is not prosecxxted by the appellant. StANKoHI) v. Hill nktte '' 122. The Judicial Committee cau only look to the record of proceedings transmitted by the court below. It will nor receive short hand-writers' notes to impeach the accuracy of th(* jixdges' notes, taken at the trial, to show that the evidence .set forth in the transcript record was luit exhibited, or that evidence had been given which had beeii omitted iu the transcript, and a petition to that ell'ect was dis- missed. PROPERTY NKQUEHTRATED. MusADEE Mauomed Gazim Sherazee v. JIeeza Ally Mauo.med JvnAN ' 123. According to the rules of a court of equity, no pro- ceedings could be taken against a sequestrator except by leave of the court. If a person has a legal title to property seized by an ordinary trespass, he can bring his action of ejei'tmeut to recover possession of such property ; but, where the property is in the custody of the court, as Avhen it is in the possession of a receiver, the course to be pursxied, if it appears there is a legal title, is to obtain leave of the court to bring an action in ejectment. Angel v. Smith, 9 Ves. 335 ; Brooks v. Greallied, 1 Jac. if Wul. 176. REASONS OF THE JUDGES OF THE COtTRT RELOW. Brown v. Gioy * 124. In rendering judgment, the judges of the inferior court should state publicly their reasons, and not reserve TiW. 1 Island of Trinidad, 1842 Mny 18, III Moore 490. 2 Cape of Good Hope, 1860 June 20, XIV Moore CO. 3 Bombav, 1854 Feb. 11, VIII Moore 90. 4 Lower 'Canada, 18G3 Dec. 8, II .Moore N. .S. 630 PRACTICE ittif ?fi' r- REASONS OF THE J1TDGES OF THE COl'RT BELOW. them to influence the decision of the court where the appeal is taken. Lord Kinosdov n, p. 365 ; — The other subject to which we thinlc it tit to advert ii? thi.-s. Two of the jul.^ge^^ have sent homo long and very elaborate arguments, supported by a citation of numerous authorities, against the decision of the majority of the court. It was asserted by the respondent, without any contradiction on the part of the appellant, that these arguments were not delivered by the dissenting judges at the hearing of the cause, but were tirst made known to the parties by being printed as part of the record before us. If the statement thus made be accurate, we must s..y with all respect for those learned persons, that the course so pur- sued by them appears to us open to great objection. We think that their reasons for dissenting from their colleagues should have been stated publicly at the hearing below, and should not have been reserved to influence the decision in the court of A])peal. We have thought it duo to the general interest of the suitors in the colony to make these remarks, in order to ])revent what has been done from growing into a practice, though it may not have produced any mischief in this particular case. ElCIIER V. VOYER ' 125. Notes of one of the judges in the court below com- municated to one of the parties, and not sent to the Regis- trar, are an undue preference, and their Lordships will not take communication of these reasons Colonial Insurance Company of Xew Zealand v. Adelaide ALvuiNE Insurance Company ' 126. Their Lordships in this cause remarked upon the absence of the reasons of the judges in rendering their judgment, as it is most desirable that the judges in the colonies should always comply with the rule. Baudains v. Liquidators of Jersey Banking Company ' 127. The rule that the notes of the judges should be put before the Judicial Committee does not apply where the law forbids the judges to take notes which will form part of the record ; as in such case the notes taken by the judge shoiild be regarded only as private memoranda. Lord IIobiiouse, p. 833: — Those notes are the notes of the judge ; and in cases Avhcre it is the judge's duty to takes notes i( may be most proper to have the judge's notes betbro the Privy Council — in 1 Quebec, 1874 .May 2, L. R. V P C. 481. 2 Australia, 188G Dec. 18, L. R. XII Appeal Ciises 118. 3 Jersey, 1888 July 7, L. R. XIII Appeal Cases 832. PRACTICE 631 REASONS OF THE JVDOKSOFTHE COURT REEOW. fact it i8 a matter of common practice in jury trials ; but by tho law and practice of Jersey, it is not the judge's duty to take notes ; on the contrary the judge appears to ))e forbidden to take notes which shall form part of the record. In that case the judge's notes are mere private memoranda for the assistance of his own memory; and he may only take down such points as he desires to direct his own attention to in the conduct of the case. Such notes might be misleading to the last degree. There might be an important point taken down for one party, and the counter point for tho other party, which would qualify it, not taken down ; and though such notes might suit the purpose of the judge very well, it would be very im- proper to have them before the Court of Appeal. RKGHT TO RRiNO AJf ACTION. See AcTlON : Undem verbis. RECUSATION OF JUDGES. Becquet v. Lempriere 128. The lelatiouship which is formed by marriage is not dissolved by the death of one of the parties without issue, so that a husband, whose wife died without children, cannot afterwards act as a judge in a cause to wliich his nephew is a party. Sir John Leach, Master op the Eolls, p. 380 ; — Their Lord- ships are of opinion ihat the decease of the aunt would not dissolve the bonds of affection which her husband might entertain towards her nephew. Suppose a case was to come on the day after the death of the aunt, would the affection which bound him the day before not exist the day after ? It would be most difficult to draw such a distinction. The connections which are formed by marriage are not dissolved by the death of one of the partii. •, and therefore the Judgment of the court below must be reversed. REPRISE D'INSTANCE. La Cloche v. La Cloche ' 129. Pending an appeal the respondent died intestate leaving children, who, by reason of litigation respecting their father's rights of succession, objected to be made res- pondents. The .Judicial Committee directed the petition to revive to stand over, with liberty to apply to the Royal court of Jersey to appoint a proper person to represent the estate. The Koyal Court appointed the Viscount of the Island as official representative of the estate, and the appeal was revived in his name. 1 Jersey, 1830 July 14, 1 Knapp 3?G. 2 Jersey, 1872 June 28, IX Moore X. S. 87. fi32 PEACTICE KE>IIRAHIKO. M iTZ V. AIii.lKAU ' 130. The Judicial Committee refused a petition lor a re- heariug of an appeal, the petition being based on the ground that the judgment of the Judicial Commit b A been formed upon certain documents which were improper- ly included by the clerk of appeals in the transcript of l)roceedings, although they had been excluded from the record by the court below^ Their Lordships refused the aiiplication as 't 'i-.r ared that the petitioner had not objected to the documexi ' s f, .ming part of the transcript, and had sought to take advantage of such documents as evidence at the hearing of the appeal. Ex parte Kisto Nautu Roy ' 131. An application for the re-hearing of an api)eal was refused. Owing to the default of the respondent's attorney, the appeal was heard ex-parle and an order in council was made. TheJi the agent sought to have the appeal re-heard. A re-hearing will not be allowed except under very special circumstances ; and the agent's negligence is not a good and sufficient reason to obtain it. Yenkata Narasima v. The Court of Wards "* 132. In this appeal, both parties had b^en fully heard upon the merits, and the judgment had Leen given and reported to Her Majesty, and confirmed by regular Order in council. A petition "was made for re-hearing based on a re- levant case of new matter, but the petitioji was refused. Lord AVatson, p. 663 : — It is quite true that there may be ex- ceptional circumstances which will warrant this ]?oard, even after their advice has been acted upon by Her Majesty in (.'ouncii, in allowing a case to be re-heard at the instance of one of the parties. (Their Lordships mentioned, as instani'cs, rases uhere informalities in the conduct of suits from their inception to their close might tjcuhown in framing the judgment, or where it did not fully and accurately express what the Board intended to decide.) The cause of Rajunder Narain Rae v. Bijai, (Jovimj Sing, 2 Moore's Ind. App. Ca. 181, was referred to witii the following cita- tion : " It i.s impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to jjrevent irremediable injustice being done by a court of last resort, where by some accident, without any blame, the jiarty has not been heard, and an order has been inadvertently made as if the party had been heard." 1 Lower Canada, 1859 July 7, Xtll Moore 376. 2 Calculla, 1860 Feb. 2, V Moore N. S. 37.3 and VI Moore N. S. 360. 3 Madras, 1880 July 17, L. R. Appeal Cabes 660. rilACTICE 633 rr-iieari:k«. Even before the report, whil^sttlic decision of the Board is not yel res Judicata, great caution has been observed in permitting the rehearing of appeals. In the last case to which we were referred, that of Jlehbcrt v. Purchas. L. E. 13 P. C. ()G-4, where a litigant alleged, liefore report and appi'oval, that he ha!«. TouiN V. MUKISSON " 142. A special verdict by the jury luusi l)e an ap]ireciatior. of the facts of the case only, from whic the judgment, and the verdict should not leave facts to the > oiirt to draw an in- ference, such as, whether or not negligeuii' has b(!eii established ; negligence being a (juestion of fact and not of law. In such case a new trial will be oranted. 1 Jumaica, 1377 Miireli 10, L. R. II Appeal Cases 387. 2 Lower Cauadii. 1845 June 1", V .Moore 110. PRAOTICK ()37 NETEH.WC'K OF I.XW AMD FA(?TN IW .IIIBT TRIAI.N. Li'lui Uroikiiiam, ]). 125:— There is no reason to hold, thiit tlie niceties of our plesidings are uj)plic'ahlo to a proceeding in tlie Xortii American eolonics, which are under (lie (''reucli, and not ll.e Knglish law. Tliose rules may neither govern the pleadings, nor the veniiel, nor the judgment ; in short, we may assume, thai no part of the re- cord is subject to them. Nevertheless, without descending to llu- particulars of our system, some things must of necessity belong to whatever ])roceeding involves the trial by jury. The matter of lav., and the matter of fact, must be kept separate; without the severance of the two neighbouring provinces of judge and jury, the trial In- jury cannot, in any iiitelligible or consistent sense, be said to exist. So the nature of a s])ecial verdict, which flows immediately from that severance, that ilistinclion of law ani fact, of the two functions of judge and jury, must bo the same wherever there is trial by jury. A special verdict niust be a finding of the facts by the jui'v, from which the court is to pronounce its judgment on the law. The jury should not leave the fact to the court, or, stating the e* idonce. leave its i-esult in point of fact to the court; yet, in the present instance, the action being for negligence, the special verdict linds facts, and leaves the court to say whether negligence has, or not, been proved. Negligence is a question of fact, not of law, and should have been disposed of by the jury. Whitk v. Thk Westekn Asstjr.'Vnce Company ' 143. The duty of the I'oiirt where the jury gives aiLswers which are more a f[ue.stioii of hi"\v than of fact vva.s explained as follows by the Judicial Committee. Per d'HiAM ; — ^Yhatever answer the jury give on questions of fact which are i)Ut to them, the court would be bound by, subject, of course, to this : that if the answer was not satis- factory the court might order a new trial. Hut it appears lo their Tiordships thai it' llic jury in answering a (piuslion really only giv an answer which is an answer lo a question ot' law, and n.it an answer to a question of tiic at all, the court in giving their judg- ment, and entering the verdict according to the tindings of the jury, are to decide the que^titm according to the correct decision in )H.inl of law, and not according to any erroneous statement or tindings of the jury in that r<'spi>«"i. mOMl'ITORS I>BA1TIN1\G liKFOKK TIIF. PKIVY ((kVXtll.. //( '-r Twidale'.s Petition ' 114. Under .sect. 2 and 3 of the rules of :nst of March,1870, only solicitors practising ;u London, or sohvUors admitted by the High courts in Indi;. or the corresponding courts in the colonies, can be admitl'd to practise before the Privy 1 Quebec, IST.i Miirch 9, 7 R, L. 106. 2 KnglaiM, taSH Doc. ti, L. R, XIV Apiioal t;asf< :iL'8 638 PEACTICE NOLiriTOKM PKA<'TI8I?rO BEFORE THE PRIVY COUNCIL. Couucil. The Judicial Committee have no power to extend at their discretion the class of those eligible. TAXATION OF BILLS OF COMTS. DUKFETT V. MCEVOY ' 145. The courts of Victoria can refer an attorney's bill of costs for taxation even after it has been paid, provided ap- plication is made within twelve months after payment. 14<3. The courts can also order from an attorney the de- livery of his bill whether it is one liable to taxation or not. ij O'ROURKE ET AL V. CoMMI.SSIONERS KOB R.ULWAYS '' 1-47. The appellants having constructed a railway for the respondents, claimed by action a sum of .£100,000 as the balance due on the contract. The dispute was referred to arbitrators, by consent, and it was agreed as follows : " Tlie costs of this action, and of the arbitration, and incidental to arbitration, and of the aivard, to follow the verdict so to be entered and to be taxed in the ordiaari/ manner.'' The arbitrators awarded to appellants ,£20,433 10s. lid., and a further sum of £2,983 15s. for costs. At the taxation of the bill by the prothonotary, the respondent submitted that the costs should be taxed in proportion to the success of each party, and claimed that he succeeded for the difference between £100,000 and the award, and that he should have costs in that proportion. The prothonotary and the court below maintained his pretentions and held the costs to be divi- sible according to the amounts for which each party had succeeded. The Jvidicial Committee reversed this judgmeni and held that the award of the arbitrators being in favour of the ap- pellants carried the costs to the extent of the sum allowed ; and that no evidence could be admitted at the taxation of the costs to explain or contradict the award. — Dufce of Bucckuch V. Metiopolituit Board of iVorks, L. R. 5 H. L. 418 ; Traherne v. Gardner, 8 E. iSf B. 161 ; Little v. Sandeman, 1 N. S. W. L. R. 263 ; Williams v Great Western Ri/ Co., 8 M. S^- W. 856 ; Wilcox v. Wilcox, 4 Ex. 500 ; Crawshum v. York and North Midland Ry Co., 21 L. J. (Q. B.) 274; Anderson v. Chapman, b M. ^ W. 483 ; Whitwortk v, Hulse, L. R. 1 Ex. 251. 1 Victoria, 1885 Feb. 5, L. R. X. Appeal Cases 300. 2 \ew South Wales, 1890 June 28, L. R. XV Appeal Cases 371. PEACTICE G39 THIRD PARTIES I?r SriT. Lindsay v. Okiental Bank ' 148. The questiou whether third parties ought to have been made parties to a suit, is au objection of form, and not of substance ; and is one, therefore, Avhieh the Judicial Com- mittee will not take into consideration. See on this question several cases in Practice : objections not raised in the court beloiv. verdict aoainnt eyidexce. Lambkin v, South Eastern Railway CNlmpany ^ 149. In an action of damages against a railway company, for injury done by the negligence of their servants, the jury i'ound for plaintiff and granted $7000. A new trial was granted on the ground that the verdict was against the evidence and that the damages were excessive. With respect to the verdict being against eA'idence, it ap- peared to their Lordships thai, the question of evidence was one of fact for the jury, and the finding of the jt\ry under the circumstances was not excessive. See same case in Railway : responsibility of. Phillip v. M.vutix ' 150. A verdict of a jury will not be disturbed as against evidence or the weight of evidence, unless it is one which a jury, viewing the whole of the evidence reasonably, could not properly find. See Metropolitan Railway Comjiany \. Wrif^ht, 11 Appeal cases 152. Bhowx v. C'omjiissioxers FfiR Railways * 151. The lands of the appellants were taken for the pur- pose of constructing a railway. The compensation to be allowed was, under the Colonial llaihvay Act, :22 Vict., No. 19, referred to arbitrators and fixed at the sum of ^£6,555. The appellants, being dissatisfied, took an action claiming not only an indemnity for the laud taken, but also for the value of two seams of coal alleged to be under- lyinsr, and for the severance of appellant's land ; the sum demanded w-as .€20,000. The jury granted ^eCGOO. A rule nisi for a new^ trial was granted 07i the ground that the verdict was against the evidence. The Judicial Committee allowed the appeal with costs as the question at issue was a matter to be determined by the 1 Ceylon, 1860 Jan. 23, III Law Times, N. S. lOy. 2 Quebec, 1880 Feb. ?, L. R. V Appeal Case,^ 352. 3 New South Wales, 1890 Jan. 28, L. R. Appeal Cases 193. 4 New South Wales, 1890 March 15. L. R. XV Appeal Cases 240 640 PRESCRIPTION iven for the property purchased, iiee reiiKirks of Lord T/imer. Sale : future succession. lIKilIIWAY. Tkrner V, Wai.sii ' 15'). In a colony, as well as in En/ V^' "-y^^ ^. 1.0 I.I ■tilM 125 |5o '""^^ iMiHi r*. ** >. 1.8 Hiotographic Sciences Corporation L25 i 1.4 1 1.6 23 WEST MAIN STREET WEBSTER, NY. US80 (716)872-4503 ^ ^'v^ '"J^^^- ^ ^ y. %" 642 PRESCIIIPTION ■*t i * I U PRRMKNTS ET ABflEBITii. Beauce v. Muter ' 159. A person residing iu France, but having a repre- sentative in Saint-Liicia, is not subject to the ten years pres- cription enlre presents mentioned in the Coutume de. Paris, article CXIV. 100. Such representation does not create a constructive domicile in the Island. 8 Surge's Com. on Col. Law, 43 ; 8 Pothier, Prescription No. 107. POMHESHIOSr. Benest v. Pipon ' 101. The possession necessary to constitute a title by prescription must be uninterrupted and peaceable, both according to the law of England, the civil law, and that of i.''rauce, Normandy and Jersey. LoRU Wynpoud, p. (J'J: — "Tho Roman law relative to proacrip- tion hiis boon adopted into the law of Normandy which prevails in Jersey. Wo protbsH to act on the same principles. We say, on tho authority of tho commentators on tho civil law, that the right which is to bo supported by proscription must have existed beyond tho memory of man. They have fixed on tho t«rm of 30 years as ex- ceedint; that period. Our law has carried the time of legal memory back to the return of Richard I, from the Holy Lund. Tho sort of possession that is required to establish a proscription, is the same in the civil law, the law of Jersey, and our common law. Whoever, indeed, will take tho trouble to read Bracton, and our other early writers on the common law, will bo surprised to find tho number of doctrines thoy have adopted, and oven whole passages, that they have transcribed from tho civil law. The possession must bo main- tained without force; it ought not to bo a secret or precarious pos- session ; it must be a " possessio longa, eontinua et pacifica, nee. sit leyitinm interruptio." Lord Coke hivs translated from Bracton the three lirst words of this passage in his description of the possession neces.sary to support a prescription, by saying it must oe " long, continued and peaceable. This is precisely what is said of pres- cription by tho commentator on the laws of Normandy, which are those of Jersey The Code Napoleon makes use of nearly the same expressions on this subject." Clark v. £li>iiin8tone • 162. The laws of Ceylon on limitation require ten years of possession undisturbed and uninterrupted to acquire title to disputed land. 163. The fact of works having been done on land is 1 St. Lucia, 1845 Jan. 17, V .Moore 69. 2 Jersey, 1829 July 9, I Knapp 60. 3 Ceylon, 1880 Nov. 25, L. R. VI Appeal Caws. iiiiiH PRKSCRIPTIOX 648 PONNKNNIOX. generally a presumption of the ])ossession ol' the land, but acts of ownership on land alford no presumption in a dis- puted boundary suit. AllENCY CilMrANV V. .SH"KT ' 1(54. Under the statute of limitations (8 and 4 Will. 4, «-h. 27). if a person enters upon the land of another and holds pos- session for a time, and then, -without havi)i'iix<'iATi4»ar to C0M.MI8SIONERS OF French IIoek v. Hugo ' 16t). When a person had obtained I'rom the crown the right to divert the water from tAVo springs, under the reserve of the rights of other interested perties, and had accjuired a title by prescription by a long and constant user, and his heir and successor applied to the crown for the same privilege which was "-ranted under the condition that it might be revoked at any time by the government : held, by the Judicial Committee, that the demand of the suc- cessor was not a renunciation to the prescription acquired by the former proprietor, and that the successor might oppose prescription against a grantee of the government. NERVITFDE. DdlUllN v. Le SfiMlN.VlRE DE St. SlLIUCE ' 107. The obligation to maintain and repair a road created by t'outract is a servitude, and the ol)ligatiou to repair can- not be separated from that of maintaining the road. So where the road has been maintained without interruption, but no repair done under the contract ibr a period ot time exceeding ten years, the obligation to repair is not prescribed under article 2251 of the Civil Code. Sir Miixt.voke E. Smith, p. il70:— Tin; next question is, whether the right to insist on this servitude li.'is l)een taken away by prei*- eription. Tlio (j.icstion arose below, and has been armiiod at the 1 New Soulli Wiilos, 1888 Aug. 1, L. R. XIII Aiipeiil Cnsi-s 793. 2 Ciipe ot(i<)Oil Hopt", 1880 Miirch 27, MV Law Times X. S. 03. 3 Quebec, 1880 Feb. 10. L. R. V Appeal Casea 302. ;ii' % i I m 1 if iiiiii «44 HCRVITI'DK. PKKSCIMPTIOX bur, whetlier the cn>*e falls within article 2251, wliich jjivos a pres- «'ripti()ii of ton years, or artiek- 5)12. which gives a iirescri])tiun of thirty years. It was ailmitted that the latter had not moved against the rig^it in ])oint of time. Then supposing that the appellant is right in considering that article 2251 is apjilicable to the case, their Lordships think that the right is not prescribed liy it. That article is as follows : 'lie who acquires a corjwral immoveable in good faith under a translatory title prescribes the ownership thereof, and liberates himself from the servitudes, charges, and hypothecs upon it by an etlective possession in virtue of such title during ten years." If this servitude were to be regardetlasa mere obligation to defray certain charges as an independent servitude, it may be that it would have been prescribed under this article, inasmuch as no repairs had been done, and no claim made in respect of them for a ](criod ol ten j-ears. But the servitude, as their Lordships untion oi" clamagos for the ])reach of a ooutrart, prescription run« from the time of the breach of the lontrait "vvhich is the rause of action, oven where there is fraud on the part of the defendant, and not from the time of the refusal to perform the contract. Battle// v. Faulkner, 3 Bar. & Aid. 288 ; Hhort v. McCarthy, ib. 62G ; Brown v. HotvanI, 2 Bnid. & Bing I'i. Iti'.i. The law of England on prescription is iu force in East India. Houan v. IIami ' 170. A tenant at will who is in possession of the hind leaaed during thirty seven years, the proprietor being absent fum the country, does not prescribe the laud, under the statute 3rd and 4th Will. IV. ch. 27. 171. When n person against whom the twenty years prescriiition rixns under tne above statute is beyond the seas, at the time when his title aci-rues, he saves his right for teu years more. J)AV V. Day ' 172. A tenant at will during more than twenty years, in 1 Hciignl, 1849 Dec. 6. VII Moore 85. 2 New Sotitli Wales, I8til Feb. 7, XIV .Moore 310. 3 New vSouth Wales, 1871 July 17. VIII Moore N. S. 152. I> $■. pHKscrni'TioN 645 TIMK TO PRKM'RIRE. posse.ssiou ot'au immoveahlt> v. ithoiit intorrnptioii. publicly, luicoutesttHl by tho oAVUor in iee who is pivsciit. pivsiTibes Ihi' liiiul aud obtains an indd'easibh' titk' nntlfr thf Statute <>r limitations 3 and 4 Vict., 4 oh. 27. in loiit' in N«'\v South WaUvs. TITLE. Macdoxalu v. Lamb ' 173. WhiTo piv,soript ion ol' thirty years is started with a good title to prescribe or no title. Junction of possession in ftehalf or a successor does not require a title in itisell" //•fl«.'i/rt/t7 roprictor. conferred an indefeasible right and title to the free ii.se of the ■Nvaters. ill! WHKX IT nKfilXH I.\ MAKITIMK I.ONNKN. Ukow.mxu v. Provi.vciai, Insihance Comi'ANV op Canada ' ITH. When a policy contains a clause that no action should be l)roi\!>ht on it unless within a year after the lo.ss was incxtrrcd, the assured is not precluded by la|).se of time from l)ringing' his action, if a year has not elapsed from the perfect certainty of the total loss. SiH .MoxTAouE K. Smith. )>. 274; — For. in this case, the insuranco was not on the sliiji iiut on goods, and the point of lime to be con- sidered is not when tho |)eril was encountered and the vessel driven jishorc. but when tho loss on the flour, for which indemnil}- is I IsIfof.Mnn, 18V1 \\h. 17, IX Moorf 71. J gufbfc. 18V;i Apiil ."), L. R. V. V. C. 2i53. PRKSCRIl'TION 647 WHEW IT BEOINH kN MARITIME LOMNEH. sought, uccrued. It must often bo uncertain whollior the (Inmiijie done to cargo by a iKjril insured against will result in a jiartial or total loss; and the assured is not bound in such cases to niitkc liis election how to treat it, as soon as some incipient ilaniage lias uc- currod. It is obvious that, in many cases, there nuif.t be M)nu' laj)>e of time, greater or less according to circumstances, before the ex- tent of the damage is dovoloped, and that the assured must in the nature o*" things wait until it can bo ascertained what the ultimate loss, for which he is entitloA«i) •' 178. A Judge of a district coiirt was removed from that court to another court of appellate jurisdiction com- posed of some of the judges of the first court, and the letters patent appointing him judge of the latter court, also granted him precedence over the judges of that court, whose com- missions were of later date than his own. Held, that such grant of precedence was valid, as being within the prerogative of the crown, and not an incident of ollice ; therefore the judge had a right to rank and take pre- cedence accordingly. See Droit d'auuaine. 1 l.owir Canada 1835 Feb. 2, HI Kiiapp 03. 2 Ldwi'I- Caimdn, 184'J July 2, VII Moore 23. > I 648 I'JMNCIPAL AX1> AGKXT ADMIWMOW OF MiKST. PKKSUMrTlUN See EviDEXCE, M.vKUiAdi:. PRlNCll'AL AND AGENT ADMINNIOBT OF AOKXT. IUnk of Hkxoai. v. Kast Imma i'n. ' 170. An acent of the East India Company had thi' dnty to fonii>an' eac-n proinisKory note Lssued by the comiiany and presented for payment, and lo examine \v\»ether it was forged or genuine. In one tase, h«» eertilied the geuuinenesss of a l)romi.ssory note, although it AVa.s a forged imitation. Held, that thi.s admission did not bind the company before the courts of justice. ACIF.NT TOWARDS PHIXl'lPAL. lUttToN V. Ml'IK -' 180. Where a man purchase.s land with the money of another, although there is no written evidence of the trust, a trust results in favour of the owner of the money l)y operation of law. He is in equity, but only inequity, the owner of the land, and has a right to compel a conveyance to himself by the agent or by such person as he may direct. He is not the purchaser, but a cestui que trust, and the whole legal light and legal rightful ownership is in the agent who purchased. DUTY OF AUEKT TO ACC'OIJXT. Wii.liam.s v. Steven."* ^ 181. An agent is bound to accotmt to his principal for all gain he has made. 182. It is no answer to this ralo that a person standing in the situation of trustee or agent must account to his priuci- ]ml for all benefit which he has obtained by virtue of that char- acter, to say that in the course of hi.'s dealings as agent, he l)ersonally incurred responsibility and possibility of losses : if the transaction has resulted in gain obtained by virtue of the trusteeship or agency, this is sufficient to give the bene- fit to the principal. FACTOR'S ADVANCES. De CoM.XS v. pRdST ' 183. Mere advances made by a factor, whether at the 1 CnlcuttH, 1834 Jan. 8, III Knapp 24.5. 2 New South Wales, 1874 Xov. 14, L. R. VI P. C. 134. 3 Island of Jersey, 1866 Xov. ft, IV Moore N. S. 233. 4 New South Wales, 18G5 March 1.1, III Moore N. S. LIS. the iinnot lit' an PIMNCU'AL AND AGKNT ti49 >'A4'TOK'N ADV.iSit-KN. time of his employment as such, or snl»si'(ju^ntly have the efleit of altt'iintf the ivvotahh' natui authority to sell unl♦'.s^<. the advances are acconipanifd by an agreemeut that the authority shall not be revoeablf. The principal has ahvays the rijj'ht to ifive directions .is to the time and manner of sale. FHAt'D OF AfiF..\T. >L\rK.\v V. CoMMKiui.vi, lUxK (IF Xkw Hiu nsv ick ' 1H4. A principal is responsible in damairt's or otherwise lor the fraud, deceit and wronii- of his afrent committed in the course of the service and for the princii)ars b"nelit, thoutjh no express command or privity of the priueijial be proved. 18'). Where an officer ol" a bankinu' corporation, whose duty it Avas to obtain the aocejitance of bills of exohaiiue in Avhich the l)n,nk Avas interested, fraudulently, but without the knowledijv of the president or directors of the bank, made a representation to a merchant Avhich, by omitting material facts, misled him and induced h'm to accept a biUin Avhich the l)ank Avas interested, and the merchant avus comjielled to pay the bill, it Avas held that he could recover from the bank the amotint paid. Sill MnxT.V'iiE K. .Smith, ji. 41tl: — Their Lunlsliips rcganl it as settled law that a jirincipMl is an'-wenil'le wlii-n lie has reeeivetl a bonetit from the frauil lit' his agent, acting within the seupi' lieon laid down liy Lord Holt in Jleni v. j\7o/('V/,s ', liy Lord Kllenliorougli in Alexander v. Gibson^. Iiy I'arko, Ji.. in Cornfof>t v. Foicke*, although, under the jx-euiiar cir- eiimslanees of that case, he lield the dofondant notlialile; aUo liy Vnv\ni K, in Moens y. Jlei/north^; by :Tlml(il C. J., delivering the judgment of the I'^xehorpier Chamhei- in Wihonw Fuller*; an AftO IMMXCri'AL AND A(;KNT FKAI'll or A4JKKT. I'ipnl. or tlmt In- yiivc lii> ii!;i'iit frcnoral ntitliority to comnut wrongs or t'rainN. Imlccil, it iiiity l>t' gi'iicr.'illy ii^r^iitiivd that, in iiuTcantilo transactions, priiiripaU do not aiitliori/.c tlicir agi-ntH to act wrong- f\illy, anc of wliicii llii> t!.\|irf'>si(»n atlniils. Hill so nariow u mmis*! would have llio crt'cct ot'enal)ling |irinci|p:ils largely to avail tlu'nisclves of tin- frainU (»f their agents, wilhont siitfering lo-N(s or ineurrini; iialiililies on aeeoiint of them, and wciidd he ojiposi-d as much to jiislieo as to aullioritv. A wider const ruction has heeii put upon ilie words. Principals liave heeti lield liahle for frauds when it has not Keen proved tliat tliey aiithori/ed the |iarti('ular fraud complained of or gave a general authority t(» commit frauds: at th<' same time, it is not easy to de- fine with precision the extent to which this lialiilily lias lieen carried. The hest definition of it. in tiicir Lordship's judgment, is to he found in tlic case of /^rwvV/, V. h'uijli.-'h ■Ininf Stnrf; //(/(A, where the judg- ment of the l"]xcliey Mr. Justice Willes. lie expressed himself as follows: — 'With respect to tho question wluither a princi|tal is answeraMe for the act of his agent in the course of his master's hiisiness, am' for hit) master's honetit, no Bonsihle distinction can he drawn hetweon liie case of fraud and tlie case of any other wrong. The general rule is, that the master is answerahlo for every sucli wrong of the servant or agent as is com- mitted in tho course of tho service and for tlie master's henefii, though no express command or jirivily of tlie master he jtrovod. The princi]ilc is acted ujion everyday in running down ca.ses. Jt has heon applied also to direct trespass to ifoods." After enumerating other instances of its ajiplicatioii, lie proceeds:— ' In all these eases it may ho said, as it was said here, that the master had not authorized tho act. It is true he has not authorized the particular act, hut he has put the agent in his jdaco to do that class of acts, and ho must ho answerahlo for the manner in which that agent has conducted himself in doing the Imsiness which it was the act of his master to ])lace him in." He further lavs down. " if a man is answerahlo for the wrong of III PRINCIPAL AXI) AGKNT 051 iiitilo FRAI'll or AOK5IT. anotlior, wlicflior it lu« fVinnI or hiIut wroiijf, if nmy Ihj ii in plt'iniin;^ !iH till' tViiiul of tin' juTson who in Houglit to l)u rnmlo iiiiswor- ahlc in the action." Tliin doctrint' wan actcil upon lalch^ hy tlio Court of (^iu'on'> noncli. in Swift v. Wintirliotham. wlu'rc tlioy lu'lii a liankinj; loni- |iany liaMf in respect of a fraudiilont j^uaranti'i' l)y tlicir inanajjiM' of tin- solvency of a jicrnon, altlioiii^li tin- hank derived no lieiielil from this representation. Tliis judi^nu'iit was, indeed, I'evi'i'sed in tiie H.\clnM|aer f'liainlier on llio ground that the sijfnaliii'e of the man- ager was not the signaturo of the company witliin the words of liie !• (lOO. 4, 0. 14, s. (I, and that the ''epresentation was nuide by the manager only in his individual ca)>acily; hut Lord Coleridge in d»' livering the judg.uent observers: "This does not a( all I'onllict with the case of yionr/V/i v. ErKjUsh Joint Stock Bdnl;, ami eases of thai description, because there can be no doubt that when an agent ofn corporation, or a Joint stock company, in conducting its business does something ot whifdi the Joint stock company take i. [vantage and by which they prolit, or by which they may i>roHi, and it turns out that the act whi<'h is so done liy their agent is a tVamlu- lent act, Justice pi>inls out, and authority su|tports justice in main- taining, that tlu'v cannot afterwards repudiate the agency, and say that the act which has been done by the agent is not an act for which they arc liable" Hut some expressions used by Lord Chelmsford and Ijord Cran- worlh to till' etl'i'Ct that an action of deceit is not maintainable against a corporation in respect of frauds of its agents, have been strongly- relieil upon on behalf of thi' respontlents. With all respect for everything falling from aiithoritj- so high, their Lordships can- not regard these tliitu, relating as they do to Kngiish forn .of action, as necessary to the decision of AihUc v. Wmttrn lianl; nf Si'otlfind. Lord Cranworth, indeed, admits that, " if by the fraud ol its (i., e., an incorporated company's) agents third persons have been ijetrauded, the corporation may be made res])onsiblc to the extent to which its funds Inive profited by these frauds. " Upon this it ma}- be observed that, if tlio .r 'jd by which the cor- poration benetited consisted of a misrei>resen(."ion not I'orming jiart of or leading to a contract with it, it is iliffleult to see how, in many eases, they could be made responsible, except in an action for deceit. If it be suggesteil thai an action for money lia<.l and received might lie, it may bo answeretl that even if that were so, the (pieslion to be tried would be in substance the same, and the evidence thi' name, and that the time has passed when much imporlance wa- attached to mere forms of action. If the benefit received by the corporation happened fo be in the shajie of a specific chattel instead of money, it is dillicult to see whiit better title they would have to retain it, but in that case the action for money had and received would not lie, and some iorm of action of tort woulil have to be re- sorted to. liOi'd Cranworth turther observes, in exjilanafion of some obsi-rvations which fell from him in Raiujer v. Great Western liaibraii ('ojujhiiii/: " the allegation of Udmjer was that by the fraud of 3L'. Brunei, the company's engineer, he had been induced to con- I ir cillt 652 I'IMNril'AL AND AJiKNT rR.%ri> or Aut:%v. tract In (|n jiihI hiul iloiic worku IWr tlicin iii n jiricL- ^ruwr«ly lulow Ihcii ifiil cu-.i, >ay |ur tlio.Odil iiotiad n| f.|0,(((Mt. Tlu- ciimimiiy ^'ot ilic lull iM'iictil <>t' wliat lie lia M'iite«l to till- ar^iinu-iit tliai tlic-ir \\<>ul ^>t ivatliin^ tlic coiii- jiaiiy, if tin- fact nttlic t'rainl lia rdict (■•niM liavo I>c-. ami inilcc|iecl of the Iratid of ilx a;,'ent i^ to he contine<| to ea>e> where the fraud i> part ofa contract, and tlie contra<'t c-an Ik- rocinded »i> a> to place tho parties in stiitu i/>t(> — a doctrine nrich narrower tiian that hiid down liy Jjord Cranworth — it ap|iear-< to tiieii- LordsJiips to follow that an action of deceit i- mainlainahle. wheiein, as laiil down hy the Kx- theciiiert 'handier the traml of iheaffcnt niav he treateil for jiurposeh of pleay their fraud, the same jirin- eiples must prevail where the jirincijial under whom the agent acts iis a corporation. S.MIKE V. Fh.vntis ' 186. An agcut. actiiiu- within the scopf of his authority, div.AV a hill ol' exchauirt* ou a commeivial linn under I'alsf preti'Uce of certain ordinary tranKattions. and fraudulently ap]>ropriated the proi ceds to his own use. His priuoijial was held responsible and contlenmed to refund the amount ol the bill. FRAin OF Mi:B>Ay the Inw (d'Caiiadu, a IraiiMt't'nM! from such lioldt-ris Imuud to iiu|iiirH wht'thtM- the traustV'r is authori/i'd by ihf iiiire of thi- 'ru.-ti, or hi' taki's it at its owu risk. I> IIai.shihv I.. (".. p. <>22 — Tlii'ir Iionl?*Iuii> m-' K'd to thi-* ot ju>ti<'t' a^U'lv i ii rnaii ami man, aixl tilt' ordinary expcctationH of mankind in tran>a('tim: tlicir atlairf. Ifimloi-d they tound any print'iiili' of (^iifl ■ r law wliifii ahsoluifly forhado that propiTl}* •.hoiild Ik- phuvd in liic naino of ii pornon, with a ^imiiltam-oiiN notiio providin;; that lii> powor over it sh(»iild not 1j<' al(.-*oluti' hut restrict od, that wouKl rontrol their dt'oi- ■M'd upon tht'm from tin- har >vith ;jfreat ahility and force, hut. an they hold, without aulhorily to ^u]t- port it. The autlioritie.H cited relate to initn'liit((irns-i'ii'tf-n'jmi^. and are to the etfeet that, when projterty ha> heen ]ila<'eueh an a;j;ent, iliinl parties may safely deal with him alone, even thoULfli notire is j^iven to them that his principal is not assenting to his acts. Their Lordships think it uneeessary to e.\- amine (his Mtatoinent of tiie powers of a imiiu/dtdin -jirit,-ii'/m. tor they tind no dotinition or description of such an ai^ent which does not recpiire that he should have a titir itj)j>tiren(, which they un- derstand to mean tiiat lie nmst he ostensihio owner, made lo appear to the world as ahsolute owner. They asked wlidhei' tlicr*- was any text (^r ease to shew tliat an agent ea" be a iiuiiKliititin-jirfte- nom when the instrument conferring the property on him carried upon its face a declaration that his proi)erty is qualitied. No such authority could be found. LIABILITIEM OF AOEXT OW INDORMEMKXTN. See BiLLS OF EX- CHANGE : '•i>/i AUKNT iiiN I.IF..\ OF CO.VNIONEK. The custom f)f' llie morcantilo world is to select iis consignee, a mer- chant residing in this countr}-, to whom the whole produce of the nlantation is consigned, and who. in return for that produce, accepts hills drawn ujioti him by the proprietor or manager in tlio West Indies i\)V Island contingencies; and who, according to the orders of the manager or proprietor, purchases the sujiplies needed fur the estate, and sends them over to the Island. There is no necessity in a cji.sc of this kind tliat there should be any contract for the i)urpose of determining tiie right of the con- signee. The right of the consignee, as it is supposed to be establish- ed by decision, giving him a lien on the plantation in respect of the lialance due to him, is an exception to the general rule which ap- ])lies to principal and agent. But lien is not the result of an express contract; it is given by im- plication of law. If therefore a mercantile relation, which might involve a lien, is created by a written contract, and security given for the result of the dealings in that relation, the express stipulation and agreement of the parties for security excludes lion, and limits their right by the extent of the express contract that they have made. Expressum faci.t cessare tacitum. If a consignee takes an express security, it exchules general lien. LIEN FOR HOXEY ADVANCEK. liOfiEUSON V. I{EU) 100. A commercial lirm in Qixcbec contracted, as ageuts for another firm iu Newry, with a builder for the construc- tion of a ship ; and this latter firm sent to the former the rigging for the ship through their correspondent at Liver- pool. The rigging was delivered to the Quebec firm who paid the customs dvities and other expenses. Held, that the Quebec firm had a lien for their advances, being agents and in actual possession of the rigging, al- though the builders had assigned the ship to them, and one of the partners registered it in his own name. 11 v i FllASER V. BlUOESS ' 191. An agent employed to manage a West Indian estate by the owners, subject to the charges upon it, is not as such entitled to a lien on the lands iu respect of his advances for cultivation, against those whose title is prior to that of the employers. LIESr OF SUB^AOENT. FrASER v. BUROESS 192. If an agent has the possession and the administra- 1 Lower Canada, 1830 July 14, 1 Knapp 362. 2 St. Vincent, 18G0 March 29, Law Times II Vol. N. S. 446. 3 St. Vincent, 1860 Miirch 29, Law TiuifS II vol. N. S. 44G. PIUNCIPAL AND AGENT I lEN OF NlJB>AOEXT. tiou of au estate, managing it ou behalf of all the iuton'sted parties, and as siieh employs a snb-agent, snch suh-agent has the same right and lii-n as the trustee who employed him, lor his expenses and advances. NEULIUEWCE Of AGENT. TiiK Bank ok Van Dikmrn's Land v. 'Pii?; IUnk or Victukia ' 193. The bank appelhuits "svere indorsers of a bill drawn by a m(n-«,'hant, at Van Diemen, on a lirm doing busini'ss in Melbourne, at lifteen days after sight. The bill was transmit- ted by him to the respondent, the appellants' agent at Mel- bourne, for presentment. The Bank of Victoria received the bill at one o'clock on Friday, and at two o'clock on the same day the bill was presented by their clerk to the draAvees, for acceptance, and li'ft with them for that purpose. On Satur- day, the following day, au acceptance was written by one of the drawa'es across the face of the bill, and the bill so accepted was handed to a *derk to be delivered in the usual I'ourse of business, and at half past eleven o'clock on that day a derk of the Bank of Victoria called upon the drawees and asked for the bill. He was told by the clerk of the drawees that the bill had been mislaid, and requested to call again on Monday, which he agreed to do, as, according to the custom in Melbourne, business closed at 12 o'clock on Saturdays. On Monday the cltM'k of the r^'spondeut called again upon the drawees, and was told that the bill Avas ready to be delivered, but that in the absence of the clerk who had charge of it, it could not then be got at, and he was requested to call on Tuesday. The clerk called on that day and obtained the bill, but the act^eptauce of the draw^ees was cancelled on the face of the bill, the drawees having obtained information in the interval that the remittance was not likely to be forwarded by the owner to meet the bill. The merchant became insolvent, and the bank appel- lants having received nothing in respect of the bill, brought au action against the Bank of Victoria as their agents, for negligence. The evidence did not show any uniform usage to i)resent the bills the same day for acceptance. The custom to close at 12 o' lock ou Saturdays was proved. The judge put it to the _]ury whether they thought that the Bank of Victori.i was guilty of negligence, or a breach of duty, in not demanding that the bill should be delivered up on Saturday, accepted or unaccepted, and the jury 1 Victoria, 1^71 Jan. '27, VII Moore N. S. 401. 656 PK I NCI PAL AND AGENT WKOMGEXC'E OF AOEXT. iiusw't'n'd that, strictly sptnikiuff, there wa.s a neglect, hut coiitsideriiiiy the respectahihty of the drawees, aud Saturday l>eiua- a short day, the Bank of Victoria was excusable iu leaviuir thi^ bill. The jury found for the plaiiititf with iioiniiial damages, aud an application to increase them to €3,000, the amount of the bill, was refused by the Supreme court. The Judicial Committee held that under the c'~cum- stances, and con.-iidering the position of the drawees, there was no such negligence by the defendants as agents as to entitle the plaintitts to substantial damages. Lord Cairns, p. 423 : — Now, the first question which their Lortl- shijjs have to consider is what is the meaning of the term " un- reasonable time " as between persons standing in this rehitiou, for the execution by the agent of the duty which is imposed upon him. But inasmuch as the object of the transmission of a bill of this kind from principal to agent is to obtain the ace ptance and the pa^-ment of the biil, or, if it is not accepted, to guard the rights of the prin- cipal against the drawer in case recourse is to be had to the drawer, their Lordships are of opinion, that the duty of the agent is to ob- tain acceptance of the bill, if possible, but not to press unduly for iujcej)tance in such a waj- as to lead to a refusal, jjrovided that the steps for obtaining acceptance or refusal are taken within that Umit of time which will preserve the right of his principal against the drawer. powebs of agent. Steele v. Murphv ' 194. An agent stipplying an estate with necessaries through a factor, cannot give to this latter a privilege for his advances against the owner of the estate. liff!^ = The >L\rchio.\ess of Bote et al. v. Mason et al ' 195. An agent was charged with the full administration of an establishment in New South Wales, for a priucipa;! living in Scotland, with the right to purchase aud sell cattle and lands ; for his first instalment the agent received from his principal a certain sum of money which he in- vested as agreed in his own name. The ageut became em- barrassed financially, aud, in consequence, drew bills on his principal, endorsed by a third party, but these bills were not paid, and the agent then assigned to the endorser of the bills the whole property he held in trust and some of 44.5. 2 Ne-.v South Wales, 1849 July 0, VII .Moore 1 I'laXClPAl. AND A(iKNT 667 there as to IMIWKKN OF .t-i/, whuro he saw Murray, who then was, and had been from its formation, tho Manager of the Com- pany ; I'.e applied t(j him in the usual way to etfect the insurance, .stating for wiiom it was to he ; and all was proceeil'ng in the usual way in which polieiye-law of the Corporation. These are the laws under which the company came intoe.Kistence, from which it receives all its powers, and by which they must be limited ; they certaiidy contain no express power to make any con- tracts for fire insurance, except by policy, and in order as ii should seem to sccnre the solvency of the company, the exercise of that power is guardeii by specific provisions, whereas none are made in respect of fire insurances by parol. To support the direction of the learned Judge, evidence was necessary that the appellants had assumed to have the power to make contracts for fi''e insurances by parol, and held out Murray as their agent for making them, without any restriction. The burthen of proof was Ciitirely on the res- pondent ; the provisions of the Ordinance and Act of incorijoration ilearly raise no presumption in her favour. Xow, Avhat are the remaining facts in the case ? Thei'e is no evide.ice of express authority: Murray yv us the manager for the company; he held an office recognized in the Ordinance and Act, importing very large ])owers and a wide discretion; but then he was the manager for a company whose powers, in respect of i)olicies at least, were subject to limitations, which were ])ublic, and must be taken to have been well-known. He was clearly its agent for granting policies. The evidence, taken in its result, shows that whether the practice to pay the premium down, and to issue the policy after such a delay only as the ordinary necessities of business made inevitable, had been absolutely uniform or not; yet that to give credit for the premium, or to take a promissory note for it, payable infuturo, and to delay the issuing of a policy indefinitely, was very rare: it shows also, that to insure without any policy eventually issuing, was entirely without precedent; that /fa/ys, whose knowledge must be taken to be the knowledge of the respondent, knew all this, and was not deceived ; that he had undertaken to her to effect a j)olicy of insurance, not a parol contract of insurance ; that his original ap- plication was for an insurance by policy, and that it was only his own default, in not being prepared to p^iy the premium, which pre- vented the policy from issuing in the usual waj-, at the usual time. It was he who prevailed on the agent to ilo the act which is now relied on as binding the appellants. Xow Murray was, imleed, their f i; 9'i\ n I (.'00 PRIXCIPAL A XI) AGENT P»Wt:ilN or AUESTT. fiieiKTiil iigent; ami had lie merely made an unwise contract for them, or had he been sitistied with anwers which ouirht to have been deemed unsatisfactory; in these, and many more sujiposablo ea.'-ts (collusion on the part of the person seeking to be insured being out of the question), the comi)any would have Ijcen clearly bound; in all such supposed cases he would have been acting within the scope ot the authority which the company held him out as pos- sessing, liut if he was, and was known to be, an agent only for ertecting insurances by policy on payment of a premium (an' their Lordships see no evidence beyond this), then ho was not thei agent in the act which he really did, and they are not bound by it^. Having come to this conclusion on this point, it is unnecessary for their Lordships to pronounce anj- opinion on some other ])arts of the summing up to which objections were made in argument. JoNMENJOY COONDOO V. WaTSON ' 197. A power of attovuoy which gave to the holders authority " for the purposes aforesaid to sigu for me aud in " my name aud on my behalf any and every eontract or " agreement, acceptance, or other document." the purposes aforesaid being " from time to time to negociate, make sale, " dispose of, assign and transfer" government promissory notes, aud " to contract for, purcha.se. and accept the trans- " fer " of the same, comprises the right to sell and purchase such notes, but not to pledge them. Price v. Xf.aii.t ' 198. When a landowner had empowered his agen.! tf> alienate, and such agent, without executing a coir-pi:' . contract of sale, allowed an intending purchaser to > ■ ' possession of a flat, and to make substautial improverriO vt; in the reasonable expectation of obtaining a transfer c. paying a proper price, and then transferred to the deten- dant. who in turn made improvements, the Privy Council held that such landowner had thereby laid himself under an obligation, such as in CiA'il Code, art. 1041, is called a quasi cuntrat, to confirm the defendant's possession and title upon payment of the price thereof, according to the rate ruling at the time of commencing the improvements with interest from that date. See Bills of exchange : properly in bills. MONTAIGNAC V. ShITTA " 199. The power to administer and manage a business establishment confers the authority to raise money, when 1 Bengal. 18S4 March 1, L. R. I.K Appeal Cases 5G1 2 yiiebec, 18813 Dec. 11, L. R. XII Appeal Cases 110. 3 Lagos, 1890 July 17, L. R. XV Ajipeal Cases 357. f'. I'iilXCIPAL AXl) AGENT G«l POWKRM or AOKXT. it is ueressary to do so Ibr the proper carrying on of the aiiairs to be administered. 200. lu circumstaui'es oi' emergent y, the aseut may even borrow on exceptional terms ontside the ordinary course of business. It is not necessary, to bind the jn-iucipal, that, under those circumstances, the lender should inquire Avhether a particular case of necessity had arisen or not. provided he advanced the mouey in good faith and without notice that the agent was exceeding his powers. FOWKK OF ATTOHXEV MAY HE PARTLY I.WAMD A^'» PARTLY VALID. DeNVSSEN v. HoTllA '• 201. An agent got a power of attorney to borrow money for his principal and to give a mortgage as security. The money was obtained by the agent and a mortgage l>y him granted. It turned out afterwards that the mortgage was invalid, and the principal repudiated the loan, but it was held by the Privy Council that the borrowing was not upon condition of the mortgage being valid, and the principal was estopped from setting this up as against the party who advanced him the mouey. 202. Held also, that ueither the invalidity of the power of attorney to give a mortgage, nor the couseqiieut in- validity of the mortgage or mortgage-bond was incon- sistent with the validity at least of the second power as a mandate to borrow money. POWKR OF A«ENT TO PLEDMK OOODN OF HIS PRINCIPAL. GilBIND CllUNKKR SeIN V. IkVAN '' 203. The Factors Act, oth aud 6th Vict., was piit in force in India by the Act of the Indian Legislature, No. XX of 1844. 204. A Banian or agent having been entrusted by his prin- cipals with a bill of lading for a particular purpose, aud without the consent of his principals, pledged the same to a native banker, for advances made to himself. Held, that in order to invalidate a pledge .so made, it is necessary that the court or jury should find that the lender had notice of the agent's mala fides or want of authority to pledge the goods. 205. To establish such notice, it is sufficient to show that the circumstances attending the transaction were such that 1 Cape of Good Hope, 18G0 March 7, Law Times II X. S. 12G. 2 Calcutta, 1861 Dec. 5, XV .Moore 230. ™™f ■ i 'W ««2 PHLN'CIPAL AND AiiKNT POWKK »r AUE9IT TO PI^RDUK «OODN OF IIIN FRIKt'IPAI.. ii reasoiia]>le miiu of ])usiness applying hisiiudcrKtanding to them, would certainly know that the agent had not authority to make the pledge, even il' the agent was not also aetiug inalajide toAvards his principals. Chi:ndeii Sein v. Hyan ' 20(5. A third person acting in good faith who advances money on goods in the possession of an agent, v/ho is also the bearer of the title to the goods, is within the protection of the Trader's Act, provided he does not know or has not received any notice that the agent making the contract had no nulhority to make the same, or that the agent was acting mala Jide against the owner. 207. The statute does not provide as to the manner of giving notice, or what will amount to notice, or what would amount to knowledge ; in such case, it must be left to the ordinary principles of evidence. The circumstances, how (n^er, must be such that a reasonable man, on applying his understanding to them, would certainly know that the agent had no authority to make the pledge or was acting in bad faith against his principal. POWER OF OEEKOATIOX. The Quehec IJiciimond Eaci.road Company v. Qkinn ' 208. When the power given by one party to another by an instrument in writing is of such a nature as to require its execution by a deputy, by the law in force in Lower Canada, the party originally authorized as the agent may appoint a deputy. 209. By an act of Parliament a company was incorpojated, with power to purchase land to construct a railway. The lands were to be acquired either by agreeing with the owners or by arbitration. The company afterwards entered into a contract with certain contractors for the completion of the road. It was agreed that the road should he made at the expense and charges of the contractors, who were t o pay any claim which might be made against the company. To that end, the powers vested in the company by its act of incorporation were to be exercised by the contractors. By a power of attorney, the contractors w^ho resided in England, appointed an agent, with full power to construct on their l)ehalf the said railroad, and to enter into contracts for the purchase of land and to settle any claim for land or other 1 Bengixl, 1862 Dec. 21, V Law Times N. S. 659. 2 Lower Caaada, 1858 June 23, XII Moore 232. PRINCIPAL AND AGENT 663 ler of ould o thi' how- his thi' POWER OF DEI.EOATION. damages, and generally to execute all such acts and fhiiigs as fully and eH'ectuuUy as the contractors might do. The contractors for the company required part of respon- dent's land, and took possession of it ; not being ahh; to agree upon the terms, the agent for the company and the respondent referred the matter to arbitrators and " nmiables compositeurs'' to ascertain the amount that the company should pay for the land. In this agreement the agent was described as the attorney of the contrat^tors for the Avorks upon the railroad " acting in this behalf, in the name of the company under the authority to that effect contained in the contract between the i-ompany and the contractors." The arbitrators awarded a certain sum for land and for damages to be paid by the contractors. The respondent applied to the company for payment, who referred him to the contractors, and the latter refused to pay the amount. He then brought an action against the companyi n the Superior Court in Lower Canada to recover such amount. The company pleaded in defence that the contractors, by the contract, were alone liable, and that the agent had no authority either from them, or the contractors, to refer the matter to arbitration of amiabtes compositeurs. The Judicial Committee held that the contractors, both by the express language and the necessary effect of the contract with the company, were to be considered as agents of the company, with authority to exercise the powers vested in the company by the act of incorporation in the name of the company and to buy lands, and to make the company liable to third parties with whom they had con- tracted in the name of the company, for the performance of any engagement entered into on their behalf, although, as between the contractors and the company, the former were bound to supply the necessary funds. 210. That the contractors under the contract had power to delegate to an agent, powers similar to those vested in them by the company, and that under the power of attorney executed by the contractors, the agent possessed the same powers of acting and rendering the company liable, as the contractors themselves had under the contract. 211. That the company had no power to transfer their rights, created by the Canadian Act incorporating them, to the contractors, so as to relieve themselves from the respon- sibility which the Legislature had attached to the exercise of their powers. 212. That the action was properly brought against the #ir ; fi(54 PJflNCIPAL AND AGKNT i^i I 'If i?5S ! HOWKR or DKI.t:UATIO.\. fompaiiy upon the award, as tho contract with the contrac- tors in no (leffrt'f altered the jmsition of the company with third parties, and that the airreemeut with their airent was made on the company's liehalf, tor ulthonirh the «'ompauy had a riafht. as between themselves and the contractors, to require the contractors to make payment, yet, as the con- tractors' atrent, had entered into no personal en«ragement with the respondent, the contract with the company WPs res inter alios acta, with which the respondent had nothiuj; to do. 213. That the snbmis.sion to arbitration of '' am tables com- jjositems'' was the proper conrse to pursue. ■•RIXCIPAL rjfDIMIXOHED MAY Nl'K AMD BE HITEI». BriiW.MNO v. PROVINf I.VL Ix,SlRANCE Co.MP.VNY nP CvN.VDA ' 214. An undisclosed principal who makes a commercial » ontract, through an agent and in the name of the latter for the issuing of a marine insurance policy, may stie and be sued, subject to any defence which may exist against the agent. 215. The Canadian and the English laws are similar on this point. Sir Montaoce E. Smith, p. 2'72 : — In England, policies arc usually iiiailc in the name of the insurance broker, and it was long ago decided that the broker need not l)c described as agent to enable the jirincipal to sue upon them. See VIgnier v. Smansou. " In a recent case, in which it was held that the plaintitf under the circumstances there existing, could not maintain an action on such a jtolicy, be- cause the insurance could not be shewn to have been made on his liehalf, the right of the person, who, in a case like the present, has been throughout the real principal, to sue on a policy made in the name of his agent was not doubted : Watson v. Sicann. ' By the law of England, speaking generally, an undisclosed prin- cipal may sue and be sued upon mercantile contracts made by his agent in his own name, subject to any defences or equities which without notice may exist against the agent: Ilujgins v. Senior * ; Colder v. Bobell. ' There seems no sufficient ground for making a distinction in the case of marine policies of insurance, especially when, having regard to the ordinary course of business, it must be known they are commonly made by agents. If, indeed, anj- parti- cular interest were described in the policy to belong to the person 1 Quebec, 1875 April 5, L. R. V P. C. 263. 2 1 Bob. & Piil. 346. 3 11 C. B. (N. S.)756. 4 8 M & W. 834. 5 L. R. 6 C. P. 486. l'J{l^X'I^AL A.'.D AGKNT G66 PHIXriPAI. I'XDIN('I.OMK» MAY M.'K •Mil UK MtKI). iiamod in it, an olyoctioii iiiigli' arist- fhunclcil on tlio rule that written ooiitrnctH cannot be ciiiitrailictcd \>y parol I'vidonct'. This olijcction, howevor, does* not occur in this case, where the inKiiranco is troiioral on the flour, and no interest is expresly descrilied. But if this were not the law in the case of a policy svhicji did not coi'tain the usual clause " as well in his own name, &c.," it is not denied that it would bo so in the ease of one which (Iocs; and their Lordships think that in this case the certificate ought to lie cons- trued with reference to the jtroved usaye of the respondents to treat such document as provisional, entitling the assured to a policy in their common form, which would contain the above Ciause. This common form of the respondents' jtolicy clearly shews that in their contemplation the person named in theeertiticate might be contract- ing as an agent for another; and therefore, ns against them, the contract ought to be interpreted as if the above clause were contain- ed in it. It may be observed that the condition against assignment contained in the policy cannot afl'ecl the right of the a])peliant, on whoso behalf the contract was originally made. The law of the Province does not appear to ditl'er from tliat of Hngland uprm the question under discussion. Thv Code of Lower Candda allows policies to be made in the names of agentr, art. 1^41)2. Thus giving the express sanction of the law to well-known mercan- tile usage. PKI.\('IPAl. TOWAKDM THIRD PARTIKN. Mii.Ksv. McIlwkaiti! ' 216. The rule as to the liability of a principal towards third parties Avas laid downby their Lordships, following /''/vewa/i V. Cooke, 2 Ex. 654, as follows : A person having clothed an agent with apparent general authority, but restricted it by si'cret instructions, is bound (if the other party chooses to hold him), to one who, in ignorance of the restrictions, con- tracts through the agent, on the faith of the agent having the authority he seems to have. The principal does not actually contract, but the person who thought he did, has the option to preclude him from denying that he contracted if the case is brought within the A'ery accurate statement of the law by Parke, B. 2, Ex. 663: "If the person means his representation to be acted upon, and it is acted upon accordingly ; and, if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the jjarty making the repre- sentation woiild be equally precluded from contesting its truth ; and conduct by negligence or omission, Avhere there 1 Queensland, 1883 Feb. 27, L. R. VIII Appeal Cases 120. mw* (KUi I'KiNcirAL AM) a(;i<;nt PRIIVI'IPAI. TOWARDN TIIIHD PAHTIKS. is 11 duty ciiNt upon a jxtsoij hy iiKiim! of trudo or othtTwiso to discloHc thf trutli, umy ol'ti'ji havo tho naiiH' I'H'mjt." 217. Hut ill this cant' tlu' aifciit had iiiHtruftioiiM not to deal with the third party, and notwithHtauding this res- triction both made an ai;reenient, the uj^init without dis- eloHiny his prin<-i]>al and the other party ignoring the (juality ol' the ai^eiit. Under thew eircuuiHtaneeH the I'rivy Ooumil held that the prineipal was not bound. i>ri^'«'ii>ai. towardn a. Although an agent exceeds thesi;ope of his authority, yet, if the print;ipal waive or ratify the excess, the act of the agent is binding on the principal. TuK Hkiht JIon. T. I'kmherton Leioii, p. I'.UJ: — In order to entitle an agent to rocover fntni liis principal, under Huch cirtMim- stances, l\e must show, first, that the Iosh aroHO from the fact of his agency; secondly, that he was acting within the scope of hiw au- thority; and thirdly, that the fault was not attrihutablo to any fault or laches on his ])art. If the appellant can establish these facts, it is ])lain that he is entitled to recover, as there is no reason to doulit that the Sardinian hiw in this respect is the same as the law of all other civili.sed countries. RATK or KX4-HANOE IN RK-PAYHRNT. BkHTRAM v. DunAMEL * 220. If an agent receives money under a general authority^ without any agret^meut express or implied as to the time or place of its repayment, the rate of exchange, if any is to be paid, must be considered at the time the judgment is re- corded. But if any specific time and place had been fixed by the contract of the parties for the repayment, then the rate of exchange at the time and place specified would be the measure of the amount to be retovered. Scott v. Beaver^ 2 Barn and Adul. 74 ; Cash v. Reunion, 11 Ves. 314. ratificatiosr kqvivai.ext to prkviovn authority. The Seoretauy of State in Council of Ini>ia v. Kamaciiee BoYE Saiiaha ' 221. An act done by an agent of the government, though. 1 Miilta, 185G Feb. 13, X Moore 17.5. 2 Jersey, 1838 Feb. 14, II Moore 212. 3 Madras, 1859 July 22, XIII Mora' 'j. li! I'HINCirAL AND AJiKNT <;67 HATirK'ATiow »:y thi' <^()Vi'rnnient, was held to he t'(niival('nt to an art done with prcviouN authorize I ion, Buron v. Dvnman ; '1 luxcli. Rep. 1(17, W. II. V. (lordoH. HKMl'Wr.H.iTKIN OF AOKMT. Prnnant v. SiMI'KoN ' 222. In .Taniaira, tht* at?»!nt of an ahst-nt proprietor is cntitlt'd for V\a remunoration to a L-onunission of (5 'V., only. Dknton v. D.vvr ' 223. The commission of 6 "/„ referred to in the above case of Pennant v. Sim/isnn is ijranted only to persons actually resident on the island, and iiapuble of perforniinj.' the duties of an agent. 224 The t'ommission of 5 ''/„ given by the same Aft, 24 Geo. 2, ch. 19, for receiving and nunitting the moneys collected can only be claimed when where the re- ceipts and payments were made in the island. See Usury: agents' coin mission. KEVOrATION or IHkWRRN. MuTUAh PROVrDENT LaND InvBST.MBNT and Hini.DINO Sdoietv v. MacMii,i,an ' 225. In New South Wales, a declaration made by an agtsiit that, btdbre making a sale as agent, he had no notice of the revocation of his power by death or otherwise, is a oondu.sive proof of non-revocation when the punshaser is in good faith. In this case, this rule did not apply because the purchaser was not a bona fide purchaser. VKKBAI. ■.\NTKIT(;TI0!VN TO PANN DEKD. LeISHMAN v. ConilUANE * 22H. A company was formed in India to carry on the business of insurance, and a resident, at Mauritius, gave special verbal instructions to the agent of the company, in India, to execute the partnership deed in his name, which was done, and his name appeared in the list of shareholders. Afterwards, on the insolvency of the company, being sued as such, he set up the defence that he was not a shareholder, for no power by deed was given to the agent to execute the l)artneTship in his name. 1 .raniaicii, 1831 Jiin. :0, 1 Knapp 399. 2 Jamnicn, IR.'iG Juno 15, I Moore I.*!. 3 N«w South Wales, 1889 .July 27, L. II. XIV Appaal Oases 506. 4 Mauritius, 18U3 July 27, IX Law Times N. S. 104. 668 PEINCIPAL AXJ) AGENT VERBAL IXNTRVC'TIONS TO PASS DKED. The Judicial Committee held that a partner might become liable iu that character withovit having executed the part- nership deed, if his name was put on the list of share- holders with his consent, so as to entitle him to share in the profits. Loud Kixosdown, p. lOG : — It is; isaid that a power to execute a deed can only be validlj' given by deed, antl that a parol authority i.s not sufficient for the purpose. But a partn'tr may become liable in that character without having executed the partnership deed, and if the court were satisfied by sufficient evidence that his name had been put upon the list of shareholders with liis consent, so as to entitle him to participate in the protits of the concern, their Lord- ships would not think it necessary to enquire whether the parol authority would warrant the execution of the deed. OF THE CROWN. PRIVILEGE Exchange Bank of Canada v. The Queen ' 227. Before the codes, the law relating to property in the province of Qvxebec was, except in special cases, the French law, which only gave the king priority in respect of debts due from " comptables,'' that is, officers who received and were accountable for the kings revenues. 228. The croAvn is now bound by the codes, and can claim no priority except under article 1994 of the Civil Code and by article Oil of the Code of Civil Procedure which give it a preference over unprivileged chirographic i'reditors as far as their " complables " are iu question, but .he crown, as ordinary creditor of a bank in liquidation, is not entitled to priority of payment over its other ordinary creditors. Lord Hobhouse, p. 1(53 ; — The sole ultimate question in this case is whether the Crown, being an ordinarj^ creditor of the bank which lias been put in liquidation, is entitled to prioritj' of payment over its other ordinary creditors. That again depemls on the question how the two Codes of Lower Canada are to be construed. Theii' Lordships think it clear, not only that the Crown is bound by the Codes, but that the subject of priorities is exhaustively dealt with by them, so tnat the Crown can claim no priority except what is allowed by them. If so, the other points which have been elaborately treated both in the colony and here are onlj' of subsidiary importance, though undoubtedly they have a bearing on the construction of the Codes. Their Lordships are also clear that the law relating to property in the province of Quebec or in Lower Canada, from 1774 to 1867, when the Codes came into force, must be taken to be the Coutumes 1 Quebec, 1885 Feb. 18, L. R. XI Appeal Cases 157. PRIVILKCrr-] CG9 OF THE J'ROWX. their Lordships that the passage cited from Polhier (see Rec. pp. 82-83,) is conclusive of the question unless it can be con- tiadicted or explained away. It is not conceivable that the advisers of Louis XIV shou' if an unlimited priority existed, address thorn, selves to the exact detinition by edict of a limited priority, or that Pothier should comment on that edict, all without anj' nsference to the more sweeping rule. But so far from being contradicted or ex- plained away, the pa-sage in question is .supported and emphasized by later authorities. There is the case reported by Sireij {Rec., y. S3), showing one limit ol' the king's priority-, viz., that his right again--! comptabks did not extend even to purveyors who might hav^ ijcen paid in advance. There are the authorities cited in liie note to that case, who all draw the distinction between the one Icind of Crown debtor and the other. There is the authority of the Nou- veau Di'iii'sart, expressly drawing the distinction between the official ilebts of the comptahk and his private debts due to the king, and the case of the Sieur Boucelais which illustrates that distinction (Eci'. p. 130). If the priority contended for existed in the French law, there could be no difficulty in producing authority to that etfet. Knglish text-books and reports abound with assertions of the King's prero- gative as we know it. But absolutely no authority- was produced in the colony in opposition to the decision of Mv. Justice .Mathieu, and now nothing is produced except the work of a Counsellor of State writing in the year 1632. Taking the French law to be as laid down by the whole of the judges below, the next question is, what is the proper construction 'of Art. 10!)4 of the Civil Code ? And the only difficulty in it, when considered alone, arises from the use of the expressions '• ses comp- tables " and " persons accountable for its moneys." Here again we have complete accord among the judges in the colony, that the ex- r 'TTSTP 670 PfilVILEGE i I % OF THE CKOWN. prossionw indicate not all the debtors of the Crown, but a limited class of such debtors, known to French lawyers under the name of romptables. The strongest expression of opinion to that ott'ect is uttered by the judges who decided in favor of the Crown. That opinion, however, is earnestly combated in this appeal. That the word comptables is a technical term of French law, denoting oflBiCers who receive and are accountable for the King's revenues, has been abundantly shown from the law treatises cited at the bar. It has not been shown that in legal documents the word is ever used in the general sense of " debtor " or " person responsible." It stands in the Code as it is likely a term of art would stand, as a noun substantive, which explains itself to lawyers by itself, and does not require the addition of any explanatory words, such as in the English version are found necessary because there is no corresponding English substantive. The draftsmen of the Code were working on the existing basis of French law. They were in the main mapping out a system of French law. it would be a marvellous thing indeed if persons so engaged were to use a technical term with a definite meaning well known to French lawyers, and precisely adapted to the position it occupies in the Code, and yet should intend to use it in some other sense, which is not its technical sense, for which it is not shown to be ever used, and for which other words are used. Even the general dictionaries, five or six of which their Lordships have consulted, do not lend any countenance to the resjiondent's ar- gument. The Acadimie first speaks of the word as a noun adjective thus: — " Qui est assujetti il rendre compte; ofiicier; agent comptable ; les " receveui's sont comptables. Jo ne veux point de place d'emploi " comi^table," which Tarver translates, " I don't want a place where " accounts are kept." As a substantive it is said to be thus used : " Les comptables sont " sujets ti etre recherchds. C'est un bon comptai)le," i. e., a good accountant. Laveaux says very much the same as the Academic. Both show that the word is used metaphorically, as " Nous sommes comptables " de nos talents." Littrd defines the adjective thus : — " Qui a des comptes il tenir et " ^ rendre, ofliicier, agent comptable ; " and he gives the metaphorical use. Of the substantive he says, " Celui qui est tenu de rendre " compte de deniers et de son omploi." Bouillet in his " Dictionary of Commerce," says of the word as a substantive, " Lo mot s'applique tk. toute personno qui est assujettie '" ik. rendre compte des affaires qu'elle a g«5r<;es." Coutanseau and Spiers render it in English, " An accountant. A responsible agent. Their Lordships have not found any trace of its being used in the general sense of a debtor or person under liability except in met- aphor. Tarver and Spiers render "debtor " simjily by the word dibiteur. Coming down to its special use in the instrument now being PIUVILEGE mi «F THE CROWN. <;onstraed, their Lordships have found many passages in tlie Civil Code wliere the words comptable and compte are iiscd strictly of those who are bound to account for particular transactions : , As of a tutor, art, 308 et seq. oi' an Mritier Unificiaire, art. 6^^. of an executor, art. 913 ef sefj*. of a husband for his wife's goods, art. 1425. of an agent, art. ni3. of partners, art. 1898. They have not been referred to, and they have not found any passage, in the Civil Code where these words arc used to denote generally a debtor or person under liability. For creditors and debtors the words used are crianciers and lUbi- ieurs, see Tit. III. throughout, and particularly chap. 7. To express general liability the Code uses such verbs as Tenir, Mijwndre, Charter, and their inflexions or derivatives. if there be any ditferenee between the French and English ver- sions, their Lordships think that in a matter which is evidently one of French law, the French version using a French technicial term should be the leading one. There might be cases in which such a question would arise. But it does not arise hero. The exjiression "persons accountable for its moneys " is not calculated to convoy to the mind of an English lawyer the notion of an ordinary debtor or of a banker. As between a banker and his customers, ho, by l^iglish law, is an ordinary debtor, and the amount which he owes them is not "their" money, nor is he "accountable" for it in any but a popular sense. Arts. 1778 and 1779 of the Civil Code seem to be Ibunded on the same view. Mr. Justice Eamsay says that to call a debtor accountable to his creditor would be a pervei-sion of language. Their Lordships, without going so far, cannot see why, if the i (rafts- men of the EngUsh version intended to speak of debtors, they should not have used the common term for the purpose. Or rather they would have used no term at all, but would simply have mentioned the claims of the Crown, as they have mentioned the claims of the vendor and the lessor. In fact, the terms used are strong evidence that in this passage the English version is really a translation from the French, and that in translating a French technical term for which there is no English equivalent, the draftsmen have used the best periphrasis they could think of. Their words are quite applicable to a comptable, i. e., an officer collecting revenue, bound to earmark the funds, to account for them, and not to use them as his own. ■Such is the position of an officer under Act 31 Vict., chaj). 3, sec. 18, as set out in the Eecord, p. G3. They may possibly include some other cases, but they are not applicable to a bank receiving money on deposit or current account. Construing the words according to the technical sense of comp- tables, we come to the last question ; which is the construction of art. GU of the Procedure Code. In this article, the word "defendant" is used with strict accuracy in reference to the subject matter of the title under which it is found, but must receive a reasonable latitude of construction in ap|)lying If. -:^7^ ■wn y wrwu fe ^jTy;^ -,■■•,. ,-.„,»ajjiai e-:- PRIVILEGE I sll M or TIIKCROWX. the iirtiolo to cases where there is no defendant. And it would seem that llie words " in the ahsenee of" would require to bo read in the meaning of " subject to "' ; for it can hardlj"- have boon meant that tlie rule was not to apply in any case where there were some special ])riviloij;es to be answered. When construed in all other respects literally, the article certainly gives to the Crown the priority claimed for it in this suit. But then it comes into conflict with art. r.t!i4 of the Civil Code. In the tirst place, by giving to the Crown a priority for all its claims, it swamps the limited priority given by the 10th head of art. l!Ml-4, and renders that head unmeaning. But beyond this there is actual inconsistency between the two articles. According to the literal construction of Gil, the Crown has priority over funeral ex- penses, and other classes of debts which by 1994 have priority over the Crown. It would seem that the majority of the Queen's Bench paid no attention to this conflict. They say thej' are asked to " set aside" 611 on the ground that it got into the Code in some wrongful way. They were asked to do so, and were quite right in their refusal. But they were also asked to construe the Codes as they stand, and as ilr. .lustice Mathieu had done. The}- do not notice the conflict of (J 11 with 1994 or the necessity of modifying the construction of one or the other. But the dutj- of the judge is, if possible, to recon- cile tiie two, and for that purpose to look at all relevant circum- stances. The appellants at the bar have pressed somewhat too absolutely the argument that a Procedure Code is not intended to enact sub- stantive hiw, and that this part of the Procedure Code is onl^- in- tended to give directions to the courts how to carry the rules of the Civil Code into ett'ect. Some of the articles of the Procedure Code (e. ij., art. (UO,) do create or establish rights not toueheil by the Civil Code. The two Codes should be construed together in this part just as if the articles of the Procedure Code followed the cor- res]K)nding articles of the Civil Code. So reading them, we tind that the main purpose of this part of the Procedure Code is to cany into detail the principles laid down in the Civil Code, which are repeated in the form of directions how money is to be distributed. And where fresh classes of priorities are estab- lished, they are subordinate classes not interfering with the larger classitication of the Civil Code. Of course it could be no part of the Procedure Code to contravene the principles of the Civil Code, and it is clear from art. (305 that the two were believed to be working in harmony. And when the Procedure Code is found to overlap the Civil Code, and so it becomes necessary to modify the one or the other, the fact that the function of the Procedure Code is in this part of it a subordinate one fiivours the conclusion that it is the one to lie modiried. That there should have been any delil)erate intention of giving large extension of privilege to the Crown by the indirect method of inserting a provision in a grouj) of clauses relating to a judicial dis- tribution of properly taken in execution, is a thing highly improb- PRIVILEGE 673 OF THE CROWW. able in itself. And the improbability is much heightened by the fact that at the same instant the legislature was engaged in cutting down throughout Upper Canada the very same privilege which it is held to have been setting up throughout Lower Canada. The foregoing are their Lordships' reasons for concluding that full effect should be given to art. 1994, and that art. 611 should con- sequently bo modified so as to be read in harmony with the other. There is difficulty about it. as there always is in these cases of in- consistency Following ine rule laid down for their guidance in such cases by section 12 of the Civil Code, their Lordships hold that the meaning of the legislature must have been to speak to the fol- lowing effect : — " Subject to the special privileges provided for in " the Codes, the Crown has such preference over chirographic cre- " ditors as is provided in art. 1994." Or adhering as closely as possible to its rather inaccurate language, " In the aosence of any " special privilege, the Crown has a preference over unprivileged " chirographic creditors for sums due to 't by the defendiint, being " a person accountable for its money." It may be objected that, thus read, the article is only a repetition of what is contained in the Civil Code. That is so, but it will be found that some of this group of articles (art. 607 may bo taken as an example), in fixing the rank of recipients of a fund actually under distribution, do contain repetitions of the corresponding articles of the Civil Code which give the same rank in the wider and more abstract form of privileged claims or crdances. The objec- tion, therefore, is not a serious one, as the repetition results from the principle on which these portions of the two Codes are framed. This reading is nearly the same as the readings proposed by Mr. Justice Mathiei and Chief Justice Dorion. It is a large modifi- cation of the words, but not larger than is required to bring the two sections into harmony There is ample authority for it in Carter v. Molson, and the other cases cited at the bar, and in that of The Windsor <& Annapolis Railway, 7 App. Ca., p. 178. The result is, that in the opinion of their Lordships the Court of Queen's Bench ought to have dismissed with costs the appeal from the Superior Court. They will now humbly advise Her Majesty to make such a decree. The respondents, by whom the Crown is re- presented, will pay the costs of the consolidated appeals. PRIZES OF WAR See International Law : iisdem verbis. PROBATE See Evidence : probate of wills. PROCEDURE See Practice. PROMISSORY NOTES See Bills of Exchange. 43 ii €74 RIGHT TO QCABRT. PROPIIIETOR PROPRIETOR Christian v. Gibson 229. In the Isle of Man every proprietor of an immove- able in which there is a quarry has the right, by allowing a compensation to his tenant, to take stone in it for his own use. The non-user for twenty-one years does not deprive a proprietor of this right. PUBLIC NUISANCE ASATEMEHT. Bhown v. Guoy " 230. A public nuisance may be abated, according to the French law, by a public officer under the municipal authority, without proof of special damages. 231. Any person who suffers by the nuisance has also an action of damages and may demand the abatement of the nuisance. These actions are distinct in their object and independent of each other. Loud Kinosdown, p. 363 : — The hiw of Lower Canada, as we foUcct it from the authorities, seems to stand thus : An officer suing on behalf of the public has a right at his own instance, or on the application of any per.son interested, to call for the demolition of any work erected without licence on the public domain, and he is no more required to prove that the erection has occasioned actual damage to the public than a private per.son, who complains of a wrongful invasion of his property, is obliged to prove that it has occasioned actual damage to him. 13ut, although such an officer may, if he think proper, take proceedings to abate the nuisance, he is not obliged, nor is it in all cases his duty, to interfere. A case of this kind is put by Proudhon. TraiU du Domaine publ'.c, Tome III, p. 192, No. 820, in a passage cited b^'^ Mr. Justice Ayhoin If the public officer refuses to interfere, an individual who sutfers injury is not prejudiced ; he has still his acfio7> privie, by which, he may recover damages for injury already sustinned, and the abate- ment of the cause of such injury for the future. The public and private actions are said to be not only independent of each other, but essentially, distinct in their object. The fact that the place where the work is erected is public property is of course very important in both cases, in regard to tlie right of the defendant to do what he has done, but it does not, according to the law, as we can collect it from the authorities, supersede the necessity of the plaintiff in a private action proving that he has sustained injury by the work special to himself, and beyond that which is common to the public at large, and this, as we have already stated, the plaintiff in this case has failed to do. PUBLIC SQUARE See Highway. 1 Isle of Man, 1841 Jan. 7, III .Moore 351. 2 Lower Ciinatla, 1863 Dec. 8, II .Moore X. S. 363. R SUMMARY RAILWAY AasBSdMENT ON See Assessment : iisdem verbis. OoNSTRUCTioN OP See Contract : iisdem verbis. Legislation ON ^ce Legislature : LEGISLATIVE POWERS : iisdem ver- bis. Powers of railway companies... REspo-NsiniLiTY OP railway go's... Liable to seizdre Taking possession of land for.... REDEMPTION See Htpothec : iisdem verbis. RECUSATIOX See Practice : iisdem verbis. RECONVENTION e no action like the present would lie at all, even against a wrong-door, upon the principle that where a new duly or prohibition is created by statute, and the same statute gives a remedy for the breach by penalty or otherwise, for the benetit of the ])arty grieved, he has no other (See Lord Campbell's judgment in Cowh v. S^eA, 3 E. & B,, 412, 4Ui). In the ])resenl case, however, the only remedy which is plainly given to the appellant, is the right to the treble toll, and it ia by no means clear that the forty shillings payable for each per- son, &c., carried, is not a penalty which, by section 14, goes to the crown and the informer. However, it is not necessary now to decide the point whether these remedies exclude the right of action ; for their Lordships are not prepared to advise that tiie action bo dis- missed on that ground ; and whether the right of action bo so ex- cluded or not, their Lordships consider that the appellant has a property by virtue of his special Act, which would entitle him to compensati(m under the provisions of the Hail wa\' Acts, if he can show that it has been injuriously att'ected within the meaning of those provisions — which leads to the consideration of the next ques- tion, whether it has been so atfected, and if so, in what nianner by the Acts of the company ? It has been decided by the House of Lords upon the construction of the English Hallway and Land Clauses Acts, that damage caused to property by the authorizeil use of a railway, after it is made, is not damage resulting from " the construction of the railway," or, " the execution of the works," so sis to entitle the sufferers to com- ])ensation, and those who have their properties rendered unfit for habitation by vibration or noise, unavoidably caused in the ])roper use and working of a railway, can neither bring an action for a nuisance, because such use and working are authorised and lawful, nor obtain compensation, because the Statutes have not in terms given it for such damsigo. (See Brand v. Hammersmith Eailvmy Company, Law Rep. 4 II L., 171; City of Glasyow Union Raihoay Company v. Hunter, Law Rep. 2, Scotch Appeals 7H.) The provisions of the Canadian General Hallway Acts appear to be substantially to the same effect as the English Statutes, so far as regards the points thus decided, and it was contended by the learned counsel for the respondents, that the present case was within the principle of these decisions, on the ground that the injury was not caused by the construction of the bridge, but b}' its use. Their Lordships would certainly think it right to recognize the high authority of the above decisions in their advice to Her Majesty in any case where the cir- cumstances wore the same. But it was contended by the appellant's counsel that the facts of this case were not the same. It was said that, although it may be true that the damage is not complete until the bridge is used for traffic, the injury done in the present case is not merely a nuisance incidentally affecting the enjoyment of pro- perty, but the very right of the appellant is directly infringed and disturbed by the competing bridge of the respondents. To support this view, the recent case of The Queen v. Cambrian H m lUILWAY POWERH OF Rtll.WAY <'OMPANIEN. Hailwa;/ l^oinjnmy, {Law Reports (i Q. B., 422) was cited, where the Court of (Queen's Jieiich held that the owner of a forrj- was entitled to coinpenHation from a JJaihvay conipan}' for htiililing a hridge wiiich disturhed hisciistoin. Jn that case the bridite not only carried the railway, hut was also a foot-bridfre. Tht; distinction between the case cited and those in the House of Lords is certainly fine, and was admitted to be no by the court; because it was not the erection of the bridge, but the use of it, when made, which really disturbed the pluintift's ferry. Mr. Justice Blackburn so allows when ho says, '• an action for the disturbance of a ferry would not have lain for merely building a bridge, but would only have lain where special damage was shown, viz., where it was shown that ])eoplc useil it to cross the river instead of u.sing the ferry." The decision of the court seems mainly to rest on the ground that the bridge built for the use of foot passengers, when so used, inevitably disturbed the terry, and tluirefore was, in law, an infringement of the right. But although such use as would be made of a foot-bridge might inevitably cause a disturbance of an adjoining ferry, it by no means follows that the use of a railway bridge Mould do so; on the contrarj', cases may be con- ceived where the railway might be so worked as to cause no loss of custom or disturbance to a ferry. If, however, it be assumed, according to the appellant'.s contention, that the case cited from the Court of Queen's Bench was properly ilistinguished from the decisions in the House of Lords, and that the present case is within the principle of that distinction, their Lord- ships consider that it is not the construction of the railwaj* britlge, Huthorised by the Statute, but the nse of it, when constructed, for the conveyance of tratlic, which injuriously attects the privilege of the a])])ellant, and gives him. if at all, the right to compensation, and that in anj' view of this case he would have no such right unless he is able to establish loss of custom in fact, by the making and use of the railway. This, then, benig the nature of the claim to comjiensation, and assuming it could be established in law and in fact, can the ajjpellant treat the liriilge as being unlawfully built because he has not been beforehand comjiensated ? This depends upon the construction of the Acts. The 4th Clause of the " Eailway Clauses Consolidation Act " of Lower Canada (I4th and 15th Vict., c. 51), gives the general right to comjiensation. It enacts that the power to take lands for the construction of the railway " is to bo exercised subject to the pro visions and restrictions of the Act," and that compensation is to be made to the owners of lands so taken, " or injuriously att'ected by the construction of the railway for the value, and for all damages sustained by reason of such exercise as regards such lands of the powers vested in the company; " the compensation to be ascertained and determined in the manner provided by the Act. B3' the inter- pretation clause (7) "lands" are to include all real estate and liereditaments. The yth dauHC, 4th subsection, gives the company power to make the railwaj- upon the lands on the line of it. ItAILWAY PnWERN OF RAILWAY <-ONPANIKS. ti71> By tlio 10th cliiUMC, Hubseetion 1, a phm is to l)o prenarod of tho landn " to bo passed over and taken for tho railway," and also a itonk of roforonce, witii names of tho owners; and liy suliseclion 4, it is provided that until sueii plan an(i book aro do]iosited in niannor |ir(>- vidod, '' tho execution of the railway sliall not bo proceeded with,!' Then tho 11th clause onacts " that the conveyance of lands, their valuation and tho conii)onsafion therefor," shall be made in tin* manner therein mentioned. This procoiluro provides for a notice to be given by tho com])any to tlie owner, wiiich, in case no agreement is come to, forms tiie basis of an arbitration. Tho 19th subsection provides that upon payment or tender of tlu^ compensation awarded or agreed upon, '" the award or agreement shall vest in the company the i)0wer forthwith to take possession of the lands, or to exercise tho right, or to do the thing for whicli such compensation shall have been awarded or agreed upon, and, if resistance is offered, a judge may issue a warrant to put the com- pany into possession, and to put down tho resistance." There is also a proviso that such possession may bo given, where it is necessary to proceed with the railway, with(jut such award ur agreemont, upon security being given. It was contended for the a|)pellant that u|)On those clauses, and especially sid:)section 19 of clause 11 the powers of the Act could not be exercised until compensation was made. Their Lordships consider that this might be so hold with regard to tho taking lands for making the railwa}', — a question which does not now arise. But it is a ditt'orent question whether this is so in the case of lands or easements which aro not taken, but only in- juriously ati'octed by the railway. It is obvious that cases must frequently occur where injuries may happen subsequently to the building of the railway, and as an unforeseen consequence of tho works, such as damage to buildings having a right of support from the adjacent land, appearing only when the excavations for the railway aro made, owing to some unknown state of the soil, or injury done to drains, or to rights of passage and communication, and t<) other non-apparent oasoments, of which tho company may have had no notice. It is not reasonable to suppose that when the Legislaiure gave powers to the company to make tho railway on the lands in- dicated on their plan, it intended that the company should, in cases like these, ho subject to action as wrongdoers, and to tho legal liability of having their works stopped, because compensation had not boon tirst made to ail persons injuriously affected by tho consequences of their operations. Coming then to the appellant's case, and assuming that ho may bo able to establish u right which has boon injuriously affected, his claim would be founded on this, that his statutable right was dis- turbed by the railway bridge, carrying passengers and traffic, which would otherwise have crossed tho Kicheliou by his bridge. It has been already pointed out that this injurious effect does not arise necessarily from the construction of tho bridge, but may do so from tho use of it ; and it is apparent that if the railway had never been completed, or if no disturbance had taken place by its carrying 0- I m fifiO KAIL WAY fSHwi POWKHN or RAILWAY <'ONI*ANIt:H. tniftic, which would have othtTwi.M' comolo liis bridge, tlio a])|i('Hant, Moiilil not have hft^n iiijurioiihly aH'ccled, or ontitli'd to coinj)CiiHalion at all. The powtTH of tlio luttT Canadian Act (22 Vict. c. (Jfi) appear to ho Kiihstantiully to the naint' ctlcct as tlic earlier Act, The practice nnder the Kn/^lish ActH hiiH been, that jKWWHsion of hiiidn he taken until the piirehaj^e-nioney has heen paid or Meciired, hut the making' compenHation for injiiriouKly ntfoeting iandn has not heon considered to he a condition precedent, ho as to leave the coni- ])any o])en to actions, if it has not het^n made. In th«' aln'\e case cited to siijiporl the claim of the appellant, the remedy wan not an action, hut procecdinj^s hy arhit ration, under the Compensation (Mausi^s (Jti-y. v. Cambrian Railway Company), If is true the I'int^lish Acts ditfer in soino respects from the Canadian Statute, and it was ]>ointed out hv the a|>|iellant's counsel that the proliihition ol the HUh section of the Knglish Lands Clauses Act, is confined in terms to the entry tij)on lands; and that there is no clause in the Canadian Act, equivalent to the (iHth Clause of tho Knglish Act, which provides a mode in which compensation when not made hy tho company, may he enforced. But it is to he ohserved, that there are no prohibitory words against entering on lanils or exercising the powers of the Act heforo jiaymcnt, in the ('anadian Act. The words of the IKthsulmection are affirmative, that upon jtayment or tender, the award or agreement shall vest the power in the company. It is notonacted that until this is done the authorised works shall not he executed. It is said that this is implied. J}ut when an implication is made, it should bo reasonable; and in construing these Acts, it may properly be made according to the subject-matter. Their Lordships are not now dealing with tho lands taken for the railway, but with an interest injuriously atfected, if at all, bv matters arising subsequent, not only to tho taking of the lands, liut to the construction of tho railway briilgo. It is not a reasonable construction of the Statute to imply, as a con- tlition precedent, tliat compensation must be paid for such con- sequential injuries before doing the work. It was contended that no machinery was provided by tho Act by which compensation can now be assessed, for it was said that unless the notice mentioned in the 7th subsection of tho 11th Clause was given, none of the machinery provided by the act could be put in motion. If this is so, it might afford an argument against the right of the api)ellant to compensation at all, imd it might be inferred from it that cases like the present, depending on tho use of the railway, were not contemplated. But it is obvious, as already pointed out, that there may be many cases of damage to property arising during or after tho construction ofth'3 railway from the works themselves, which would certainly fall within the general obligation to make compensation imposed on companies by the 4th clause. Their Lordships consider that if in such cases the company did not, on application, take stops to appoint an arbitrator and proceed to arbitration, the claimant might take proceedings by way of mandamus to compel them to give the notice RAILWAY ■•OWKKN wr HAII.WAY «'ONI>A9IIKN. jtroviilfd by the 7tli Hiilisoclioii of tlic lltli cIiiukc, or to aji]ts of the ])laintitl' as of a mere labourer who earned $-1 a day, inasniuch as the evidence is that the plaintiff not only earned S-4 a day in addition to the profit upon his workmen and materials, but carried on businoss as a manufacturer. It appears to have been inferred that the jur^- intended to assess damages only up to the time (jf the trial, from their answer to one of the questiims put to them in the articulation of facts. Jhit their Lordships are by no means satisfied that such was the intention of the jury. They are first asked : — " Has the " plaintiff, ever since the said accident, been disabled from doing " businoss, and to what extent is be disabled from attending to " business ? Answer. — lie has been disabled up to the present time ; " — that is to say, they did not think him cured. Then the (juostion is ]iul, which divides itself into three : — " Is the plaintiff the head of " .'i family composed of his wife and three children ? Are the}- all " dependent upon his labour for their maintenance ? Have they ever " since been deprived of his labour, and to what extent in the future " will they be deprircd of his labour ^ Answer. — -He is the head of a " family consisting of a wife and three children ; one, a son, is not " dependent ; wife and two girls de])endent." The answer to the second part of the question is : — " They have been dei)rived ; " and to the third *he jury answer that they cannot form a judgment. Their Lordships scared}- understand on what princij)le this ques- tion should have Ijeen put to the jury. The (question in the cause was not what damage had been sustained by the plaintiff's wife ami children, but what damage had been sustained by himself if he had been killed, and such an action as that brought under Lord Camj)- boU's Act in this country could be maintained in Canada, then the question would be what damage was sustained by his wife and chil- dren. But the jury are further asked. '' To what extent in the " future will the wife and children be deprived of bis laijour ? " It had been originally propcjsed to put the (question in the form ; — 684 EAILWAY If ' RKNPONSIBIUTY OF RAILWAY COMPANIKM. " For what time, under probable circumstances, or in all probability, " would they be deprived ? " But on the defendants' objection the question stands in its present form, and the jury ai'e required to fix the time when the plaintiff will recover. They declined to do what no witness, medical or otherwise, had attempted, but their Lord- ships do not therefore infer that when they answer the further ques- tion, " Has the plaintiff suffered damages by the said accident, and, " if so, to what amount ? " they excluded all consideration of future loss. If they had thought that the plaintiff would be disabled for all the rest of his life, in their Lordships' view the damages would be too small ; but if they adopted the intermediate view, which seems to be, on the whole, the result of the evidence of the plaintiffs wit- nesses, medical and otherwise, that the plaintiff had been seriously injured, that he still continued to suffer, that his brain still conti- nued somewhat affected, that he was unable to attend to business, and that it was uncertain whether i)e would ever recover, although he might recover, their Lordships feel r.nable to say that the damages given were so excessive as to justify a new trial upon that ground. They observe that the law of Canida, as expressed by the Article 420, section 11, is not far different ftora that of this country upon this subject : " If the amount awarded bo so small or so cxccl- " sive that it is evident the jury must have been influenced by im- " proper motives, or led into error," then a now trial must b'j granted. On the whole, their Lordships are by no means satistiod that the damages arc of such an excessive character as to show that the jury have been either influenced by improper motives or led into error, and they are of opinion that there ought to be no new trial. Therefore, their Lordships will humbly advise Her Majesty that the judgment of the Court of (Queen's Bench be reversed, that the judgment of the Superior Court of Montreal be affirmed, and that the Appellant have the costs of the Appeal in Canada and of the Appeal to Her Majesty in Council. See Principal and Agent ; power of delegation. uabi.e to seizdre. Eeufielu v. Corporation of Wickiiam ' 7. The provincial Aot, 43 and 44 Vict. ch. 4f), sect. 11, which provides for the transfer of the South Eastern railway contained a clause to the effect that nothing in the Act shall affect suits then pending. It was held that that clause applies also to proceedings after judgment. 8. Held also, that a railway may be seized and sold by the sheriff as any other immoveable for the debts of the company. Lord Watson, p. 744 : — In the course of the argument, the! appel- lants maintained that the sheriff's seizure ought to be annulled, and proceedings stayed, on the ground that the railway, assuming it to 1 Quebec, 1888 Feb. 15, L. U. XIII Appeal Cases 467. EAILWAY lilABLE TO NEIZUBE. be the property and in the possession of the company, was not liable to attachment for debts of the company. That plea does not apj)oar to have been taken, or discussed, in either of the Courts below ; but, seeinfij that it involves considerations of public interest, and is suffi- ciently raised by the proceedings submitted to them, their Lordships conceive that they are bound to dispose of it. The appellants relied upon the authorit}- of Gardner v. London Chatham lb Dover Railway Co. (2 Ch. App. 201), and In re Bishops Waltham Railway Co. (2 Ch. App. 382). These cases, which were decided by Earl Cairns (then Lord Justice) and Lord Justice Turner, establish conclusively that, in England, the undertaking of a railway company, duly sanctioned by the Legislature, is a going concern, which cannot be broken up or or annihilated by the mortgagees or other creditors of the company. The rule thus settled appears to rest upon these considerations, — that, inasmuch as Parliament has made no provision for the transfer of its statutory powers, privi- leges, duties, and obligations from a railway corporation to any other person, whether individual or corporate, it would be contrary to the policy of the Legislature, as disclosed in the general Eailway Statutes, and in the special Acts incorporating railway companies, to permit creditors of any class to issue executicm which would have the etfect of destroj'ing the undertaking or of preventing its com- pletion. A different result was arrived at by the Court of Queen's Bench for Lower Canada in The Corporation of the County of Drummond v. The South Eastern Railway Co. (24 L. C. J. 276). In that case the corporation, who were the holders of a bond issued to them by the Eichelieu, Drummond & Arthabaska Eailway Company, before the amalgamation, obtained judgment against the South Eastern Com- pany, and proceeded to take in execution, with a view to sell, a section of their railway. The Judge of the Superior Court quashed the proceedings, on the ground that the railway of a company incor- porated by statute could not bo seized in execution of a judgment, or sold at a sheriff's sale ; but his decision was reversed by a majo- rity of the Queen's Bench (Tessier, J., diss.), who allowed the sale to proceed. Apparently, the Court did not in that case require to consider whether a judicial sale could have been permitted of such part of the railway proi)erty as would necessarily have had the effect of breaking up the undertaking, or of resolving it into its original elements, Mr. Justice Cross said (2'4 L. 0. J. 289) : — " I can see no serious cause to apprehend that a change of proprie- " torship would interfere with the obligations which the road owes " to the public, and which the general law affecting railroads impose " on whomsoever holds it. Should it pass into the hands of indivi- " dual proprietors, it is nevertheless to a great extent subject to the " general laws enacted for the government, control, and inspection " of railways." These observations strongly suggest that the legislation which the Court of Lower Canada had to consider, in that case, differs in material respects from legislation upon the same matters in this country. The learned judge was speaking, in the year 1879, with saamam Nlf 680 RAILWAY LIABLE TO MEIZURE. reference to ])rovincial statutes, which it in now unnecessary to examine, because the undertaking of the South Eastern Com])any had become a Dominion railway, before the respondent's writ of Fl.-Fa. was issued. Sect. 92 (10 c.) of The British North America Act 18G7, excludes the authority of j^rovincial legislatures in regard to local works and undertakings which are, before or after their execution, declared by the Parliament of Canada to be for the general advantage of Canada. On the 25th of May an Act was passed bj' the Dominion Parliament (40 A''ict., cap. 24) further to amend " The Consolidated Eailway Act, 1879," and to declare certain lines of railway to be works for the general advantage of Canada ; and the enumeration of these lines in Sect. 6 includes the whole system of the South Eastern Company. Sect. 14 of the same Act provides that " if at any time any railway or any section of a rail- '• way be sold under the provisions of any deed or mortgage thereof, '' or at the instance of the holders of any mortgage bonds or deben- " tnres, for the payment of which any charge has been created " thereon, or under any other laicful proeeedimj, and be purchased by •' any person or corporation not having any corporate jjowers au- " thorising the holding and operating thereof," the purchaser must, within ten days from the date of his purchase, transmit to the Minister of Kailways and Canals an intimation of the fact, describing the termini and line of route of the railway, and specifying the charter under which it has been constructed and 02)erated. Section 15 pro- vides that, until such intimation has been made and all information furnished which the Minister may require, it shall not be lawful for the purchaser to operate the railway ; but that he may thereafter continue, until the end of the then next session of the Parliament of Canada to work the railway and to take tolls, upon the terms and conditions of the previous owner's charter, unless these are varied by a letter of license, which the Minister is authorized to grant. Sect. 15 makes it the duty of the purchaser to apply to Parliament, during the next session after the purchase, for an Act of incorporation or other legislative authority to hold, operate, and run the railway. If the application proves unsuccessful, it is in tlie discretion of the Minister to extend his license until the end of the next following session of Parliament, and no longer. Should the purchaser, during the extended period, fail to obtain an Act of incorporation or other legislative authority, then the railway must be closed, or otherwise dealt with by the Minister of Ewilways and Canals, as shall be determined bj' the Eailway Committee of the Privy Council. Comment upon these enactments would be superfluous. They do not suggest that, according to the policy of Canadian law, a statu- tory railway undertaking can be disintegrated by piecemeal sales at the instance of judgment creditors of incumbrances ; but they clearly show that the Dominion Parliament has recognized the rule that a railway or a section of a railway may, as an integer, be taken in execution and sold, like other imrneubles, in ordinary course of law. They justify the statement of Chief Justice Dorion, in the present case, that, " it is now well settled by the jurisprudence " prevailing in this country, and recognized by the Act 4(3 Vict., Ill RAILWAY m K,IABLE TO SEIZUKE. " cap. 49, that a railway can bo seized and sold for the debts of the " company who owns such railway." TAKINO POSSESSION OF l.A?iD. Corporation of Parkdale v. West. ' 9. An order of the railway committee under 46 Vict. ch. 24 sect. 4 of the Dominion, does not of itself, and without the fulfilment of the formalities imnosed by law, authorize a railw^ay company on whom the order is made to take any persons' land or to interfere with any person.s' right. And such formalities include all the provisions contained in the Consolidated Railway Act, 1879, iinder the heading of " plans and surveys," and " lands and their valuation " which are applicable to the case ; the taking of land and the interference with rights over land being placed on the same footing in that act. 10. "Where a railway company, acting under such an order, did not deposit a plan or book of reference relating to the alterations required by the order, it was not entitled to commence operations. 11. Under the act of 18*79, the payment of compensation by the railway company is a condition precedent to its right of interfering with the possession of land or the rights of individuals. Jones v. Stanstead Railway Company. L. R. 4 P. C. 98 distinguished. T^ToRTH Shore Eailway Co. v. Pion ^ 12. Under the Quebec Railway Consolidation Act, 1880, sect. 9, no authority is given to a railway company to exer- cise its powers in such a manner as to inflict substantial damage upon land not taken, without compensation. 13. And, as the appellants had not taken the steps neces- sary under the Act, 1880, to vest in them the power to exer- cise the right or do the thing for which compensation would have been due under the Act, an action by the respondents for damages and the removal of the obstruction, would lie ; in which, if the obstruction were not ordered to be removed, damages as for a permanent injury to the land could be re- covered. For their Lordships' remarks, see Riparian pro- prietors : rights of Tlie foHotving cases ivere commented and acted upon by their Lordships, viz : Corporation of Parkdale v. West \ Jones v. 1 S. C. Canada, 1887 July 27, L. R. XII Appeal Cases 602. 2 S. C. C.inada, 1889 August 1, L. R. XIV Appeal Cases 612. 3 12 App. Cas 603. 11 w I #^ fi^' 688 EAILWAY 11^ TAKiarO POSSESSION OF LAND. Slanstead Railway Company\ Hammersmith Railway Company V. Bran'i', Queen v. Cambrian Railway Company^, Hopkins y. Greet .'*'' ^fhern Railway Company \ REDEMPTION See rlYPOTHKC : iisdem verbis. RECUSATION See PraCi: 'E : c. :c.n verba. RLICONVENTION See Practice : cross-action. REGISTRATION EFFECT OF The Natal Land Co. v. Good * 14. The duly registered title of a mortgagee prevails over the equitable right of au anterior bona fide purchaser without auy title registered. McEllistee v. £1008 * 15. Under the law of South Australia, a unregistered title to land does not pass interest in the land, but gives au equitable right sufficient to contest a registered certificate of title obtained by fraud. White v. Neatlon ' 16. Under the registration Act of South Australia, priority is given on behalf of a registered title against an unregis- tered one ; but the act does not destroy a claim in equity of which a subsequent purchaser has had notice. EFFECT OF WRIT OF FIERI FACIAS. Beqistrak of Titles v. Paterson ' 17. Where a copy of a writ oi fieri facias against a regis- tered proprietor of land, accompanied by a statement spe- cifying the land as that sought to be aflfected by such writ, has been served on the Registrar of titles, and no transfer upon a sale under such fieri facias has been left for entry upon the registrar, within three months from the day ou 1 L. R. 4P. C.98. 2 L. R. 4 H. L. 171. 3 L. R. C Q. B. 422. 4 2 Q. B. D. 224. 6 Natal, 1868 July 21, V Moore N. S. 132. 6 South Australia, 1883 March 14, L. R. VIII Appeal nnses 314. 7 South Australia, 1886 Feb. 9, L. R. XI Appeal Oases ITI. 8 Victoria, 1876 Dec 6, L. R. II Appeal Cases 110 I-' iiEGISTliATLOX 689 EFFECT OF WRIT OF FIERI FAC'IAIii. which the copy was served, but a copy of an alias fieri fadas, accompanied by such statement as aforesaid, has been served on the Registrar before the expiration of three months from the service of the copy of the original /ter/: facias, the Registrar caunot, after the expiration of such three mouths;, register a transfer of laud from the registered proprietor to a purchaser from him, which had been lodged for regis- tration before the service of the copy of the alias fieri facias. OF MARRIAGE CONTRACT. Sr.MON V. Vernon ' 18. The registration of a marriage contract in the public register, pursuant to an order of the Royal court, confers in favour of the wife a right of hypothec, in respect of its pro- visions, which entitle her to be ranked in the codement as a secured creditor from and after the date of the order of court giving authority to register. OF SALE. TeNNANT ET AL. v. HOWATRON ^ 19. Under the Trinidad ordinance a sale of crops actually growing must be registered on pain of nullity. REPRISE D'INSTANOE See Practice : iisdem verbis. RESIDENCE iSee Domicile. RESPONSIBILITY for escape of prisoners- Le Breton v. Aubin ' 20. The prison Board in Jersey are not responsible to the detaining creditor for the escape of a prisoner from the gaol, as the appointment of the gaoler is a mere incident of the management of the gaol. for injitry to property. The Madr,vs Eailway Company v. The Zemindar OP Carvetinaoarum * 21. In India, water is stored in tanks which are kept by proprietors of lands and form part of the national system 1 Jersoy, 1883 June 12, L. R. VHI Appeal Cases .')42. 2 Trinidad, 1888 Marcli 3, L. R. XIII Appeal Cases 489. 3 Jersey, 1855 July 18, X Moore 17. 4 Madras, 1874 Aug. 8, XXX Law Times N. S. 770. 44 I !, it \l- 1-'; T ./•"VK^gmm iif 1^ 690 JIKSPONSIBILITY FOR IK JURY TO PROPERTY. of irrigation, accordiug to ancient custom. One of them having burst and the water which escaped therefrom having carried away the bridge and embankment of the appellant, the Judicial Committee held, that as the accident was caused by an extraordinary flood without negligence on the respondent's part, this latter was not liable. 22. If a person brings and accumulates on his land any- thing which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape and iause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage. Fletcher v. Rylands, L. R. 3 H. of L. 330 ; 19 L T. Rep. N. S. 220. 23. The principle that a man, in exercising a right which belongs to him may be liable, without negligence, for injury done to another person, has been held inapplicable to rights conferred by statute, and, therefore, a railway company were held not responsible for damage from fire kindled by sparks from their locomotive engine, in the absence of negligence, because they were authorized to use locomotive engines by statute. 24. Where the Legislature has sanctioned and authorized the use of a particular thing, and it is used for the pur- pose for which it was authorized, and every precaution has been observed to prevent injury, the sanction of the Legislature carries with it this consequence that if damages result from the use of such a thing independently of negli- gence, the person using it is not responsible." Vaughhan v. Tlie Taff Vale Ry Co., 5 H. tV N. 679 ; 2 L. T. Rep. N. S. 394. 25. A waterworks company laying down pipes by a statutory power, were held not liable for damages occa- sioned by water escaping in consequence of a fire-plug being forced out of its place by a frost of unusual severity. Bi//tM V. The Birmington Watertvork Company, 25 L, J. 212. 26. A railway company which had not express statutory power to use locomotive engines, was held liable for dam- age done by fire proceeding from them, though there was no negligence on the part of the company. Jones v. The Fes- lining Ry Co., L. Rep. 3 Q. B. 733 ; 18 L. T. Rep. N. S. 902. 27. Damage caused to property by the authorized use of a railway, after it is made, is not damage resulting from *' the construction ol the railway, or the execution of the works," so as to entitle the sufferers to compensativ . and those who have their properties rendered unfit for habita- tion by vibration or noise, unavoidably caused by the proper lit KKSPOXSIBILITY {i!)l ofL. FOR I.VJVRV TO I>KOI>t:HT¥. use and working* of a railway, tan neither bring an action for a nuisance, because such use and working are authorized and lawful, nor obtain compensation, because the statutes have not in terms given it for such damage; Brand v. Hammersmith liailioa// Compaiiij, L. R. 4 H. L. 1171 ; Cit// of Glasgow Union Raihray Company v. Hunter, L R. 2 iScotch A///)fals 78. See Affuekjhtment, Auchitect and Contuactor, Banks AND Banking, Cauuieh, C'oui'ohation (municipal). Damages, Judges, Master and Servant, Merchant tSiiippiNG, Oi-KicERs, Partnership, Kaiiavay, Sal- vage, Sheriff, Testamentary-Executors. RESPONDENTIA. See Bottomry and Respondentia, RIPARIAN PROPRIETORS ttlOIITS OF Miner v. Gii^mour ' 28. Where a party piuchased a piece of land with the right to use the water of a river, subject to a preference in favour of a mill thereabout to be built by the vendor, and whii'h preference was to be exercised in a particular mode, such purchaser is not bound by its exercise in a ditfereut mode, and in favour of a different mill. 2tt. The purchase of the right to the use of a portion of the water of a river cannot prevent a subsequent purchaser irom the same vendor of another portion, from diverting the water by virtue of a right which existed prior to the first purchase. Lord Ivinosdown, p. 155 : — The law upon the .suhjoct, which is the French hiw prevuiling in Lower Canada, was examined and dis- cussed by the counsel at the bar, in Ihe course of two arguments wliich their Lordsliips found it expedient to require, with great learning and ingenuity. It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law. By the general law applicable to running streams, cveiy riparian jH'oprietor has a right to what may be called the ordinary use of the water tiowing past his land ; for instance, to the reasonable use of the water for his domestic purposes and for liis cattle, and this without regard to the effect which such use may have, in case of a deticiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be Lower Cuiiadu, 1858 Dec. 2, XII Moore 131. I .■'f^^^m^m 692 mPARIAN PJJOl'IUKTORS RIOHTM or deemed the extnuinliniiry use of it, provided that lie does iiol there- by interfere with tiie rigiits of otlier ])rojirietor.s, either above or below him. Subjeel to tiiis eoinlition. he may draw up the stream for the purpose of a mill, or divert the water for the purpose of irri- gation. But he has no rijyjht to interrupt tlie regular flow of tlio Htream, if he thereby interferes with tlie lawful use of tlie water \rincipally with a view to determine the iniestion whether a parli- cidar river is or is not to be considere(l the domain of the t!rown. The definitions attempted to be given are often vague, and some- times contradictory. Their Lordsliips, after citing Dulloz Iiep., Tit. Voien'c jxir eaii, Nos. 3!), 52 and 5;{, and Daviel, Tnv'U (pu-stion. With regard to tln^ plaintitrH wiMu-ssos j^cnorally, llio coiii'ls hclow ohviou^iy (li>lr)i.sli'(i their t'viiU'ncc, and rofiiM'd ahscnt to tln'ir opinions. 'i'licso witncssc-- failed to natinfy lliem that tliis fai'ni. which lias aiipai'enlly no laiidiiijL; place, and whose owners liad never used the river as a nieanw of transport lor oonveyin;^ anything to or from it, was, liavinj^ rcf^ard to the ntato of navij^aliility of (ho river aiiove dcscrilied, rt-all^' depreciated in value hy liic fiict that masted harges would have to lower their inustH to pass under tho hridfi-e. Tlieir Lordsliips iinderstaml the learned judj^e of tho Sii)ierior court to hase Jus judgment on the ground that no appreciable damage has heen or would ho caused to the plaintitrw properly by the construction of thi! bridge, and that Judgment llie rrietor. to tho Iree use anti navigation of the river, independently of his right uh one of tin; pidilic, and that the construction of tho bridge is an in- fringement of tliat right, winch cntitloH him to maintain an action without jiroof of actual, and still loss of special and peculiar damage. A case from Lower ('anada, presenting this cpioslion, and not unlike in its circumstancoH to the present, camo before the commit- tee some year.s ago, Brown v. Gvijij. (This case is reported, 14 L. C. li., tii:i) After reciting some jjassages of tho judgment in the cuso Jirownv. Gxtgij, their Lordsliijis add : In these passages the distinction bot-wcon tho action privie, founded on a right of property which lies, if tho right bo invaded, without proof of damage, and the same action which arises only when the party is able to aovo damage "special to himself," is plainly assumed to exist in the law of Canada, and to a])ply to cases analogous to that now under appeal. In Iho cited case, no doubt, the alleged obstruction was negatived, but tho judgment is material tor tho view it presents of the law on th«! point now under dis- cussion. There appears to be a clear distinction in French law botwoon rights of immediate access from a man's property to a highway, and the power to complain of a mere obstruction in it. Reference is here luade to the case of 2??-KWinwnrf v. The Corpora- fim of Jfontreal, rc|).>rted IH L. C. Jurist, p. 225. After reciting a portion of the judgment in that case, their Lordships continue: I '0 ;;1 UIPAIilAX I'liOlMilHTOIlS fiO.') their farni. liti^ to otllu) •t (Imt lor tho HKillTN OV Tlu's(( prinoiploM ap|HMir to bo iiijplioiililo to I ho positioji of rijmriiui proprioto'.M iipoii ii imvi^iililo rivor. TImtc imiy lio '^ droit d'aci in ct (le sortie" holon^intr (o ripiiriari land, wliii'h, if intorfort'd with, would at oiK'o yivtn ho propni-lor -i ri;,'ht of action, hut this rij^ht a|)|)oai"H {o ho continod to wimt it is oxprt-sNod to l)o, '' (ti-rt's." or tho powor of f^ottin>; from tho water way to and upon tho hmd (and tlio oonvorwo) in a froo and unintorruptod inaiuior. Tiioir Fiordsldps tliini< that this riyht has not, in fact, hoon violated in tliis cuHo ; and that, HUjipoHinf^ tho bridge to cause some ohstructions to tho navigation, tho courts helow are rif,'ht in 1. Idini^ that tho plain- tiff is not entitled to maintain tho action in rospoct of it without proof of actual and special damage. Tho learned counsel for tho appellant, in support of thoir conten- tion on this point, did not at all refer U> I* roncli or Canadian authorities, hut referred only to h'n^'lish and American ilocisions. Those, thouf^h they may illustrate llic siiliject, ( innot he treated us governinf( authorities u])on tho law of tho |)rovincc. Tho principal cases citt'd wore, Jierkctt v. Midland Ilij. Co., L. Ji., 3 C. P., K2 ; Metropolitan Board of Works v. MrCarthy, L. It., 7 E. & I. Appeals, 2A',\ ; and Lynn v. Fishmongers Company, L. It.,] Appeal rases, (i()2. In tho first case in llio common jilons tho railway company hml made an emhankmont in a public road in front of tho plaintiff's house, by which tho width of tho road was considoi'ubly diminished, and the immediate access to his liouso interfered with. It was found as a fact that tho house was thereby permanently injured in value. Tho C'ourt hold that the sj)ecial , tho House of Lords decided that the more proximity of tho claimant's house to tho highway and to the obstruction did not create a particular damage which would give him a right of action. I ,»..>*;"""»"PP"P %3k t' ■1 '■ m C9G RIPARIAN PROrRIETORS RKJHTN OF There the highv.'ay, which way the road by which the plaintift''8 housic was approached, was olistructed by the railway being made to cross it on a level witliin a lew yards of his lodge and entrance gate. This level crossing, though it undoubtedly created an obstruc- tion very close to the entrance gate, which rendered the use of the road by those occupying the house constantly liable to interruption and delay, did not affect the immediate access to it. and it.was held that the claimant had not i)rovcd that he liad sustained particular damage beyond that of the rest of the public, and his claim was dismissed. The case most relied on by the appellant's counsel was Lyon v. The Fishmomjers' Company in the House oi' Lords. There the plaintiff was owner oi" a wharf on the Thames. One of its sides abutted on a tidal inlet which allowed of bai'ges being brought up to and loaded and u.. loaded from and upon that side of the wharf. Under a license from the Conservators of the Thames, the defendants made an em- bankment fronting the river which entirely tilled up the mouth of the inlet, and consequently prevented all access from it to the plain- tiff's wharf. The Act of Parliament which empowered the con- servators to grant the license contained a saving of the rights of owners of lands on the banks of the river. The question to be de- cided was, whether the right of access from tlie inlet to the wharf was a private right which fell within this saving, and the house, overruling the decision of the lords justices, held that it was. The learned counsel sought to press the authority of this case beyond the point which arose for adjudication, and treated it as an autority for the proposition that every ri])arian proprietor, as such, has, beyond liis right as one of the public, a riglit to the use of the river in a free and uninterrupted manner, so that any obstruction placed in it would be an invasion of a private right, for wliich an action would lie, without proof of special or even of actual damage, [t would obviously be very difficult to assign the limits of such a right, if it were established, especially in large rivers. Upon consideration of the opinions of the learned Lords, it does not seem to this Committee that their decision can be pressetl to this extent. The distinction between the right of access from the river to a riparian frontage and the right of navigation when upon it is more than once atlverted to, particularly by the Lord Chancellor, who referred, certainly not with disapproval, to the judgment of Loiil llatherley, when Vice (!hancellor, in the case of the vl/^orne;/ General x. The Conservators of tie Thames, 1 H. and M. 1, where that distinction is pointedly taken and acted upon. Whether an obstruction amounts to an interference with the access to the frontage woidd be a question of fact to be de- termined by the circumstances of each particular case. When this access is ni>t interrupted, and the waterway of the river is ojten to the liparian land, the question will arise for decision whether the right of action of the riparian jiroprietor for a distant obstruction in the river can be based on higher or other ground than would be that of any one of the public using the river and sustaining special damage; although his being such proprietor would obviously lie an im])ortant element in the question whether such damage had in fact been sustained. EIPA1?IAN PEOPEIETOES f)97 plain- RIGHTS OF The House of Lords iimloubtedly dociiled that the rifj;ht of access to the Avatcrway from riparian land is a private rii^ht wliich (he owner of such land enjoys qua owner. Such a ri^ht is analogous to the " droits iVaccts etde sortie" recognized by the French law. If, as it was contended, the English law attributes larger rights than these to riparian proprietors on navigable rivers, it would seem to go further in this direction than the law of Canada, according to which the case now under ajipeal has to be determined. Their Lordships, considering that the britlge in question does not in fact interfere with the access to the plaintiff s land, and therefore, tluit by the law of Canada it was necessary for the plaintitf to prove actual and special damage arising from it, ana not disagreeing with the concurrent judgments of the courts below that no such damage has been established, are of opinion that those judgments ought to be affirmed, and they will humbh- advise Her Majesty accordingly. The appellant must pay the costs of this appeal. C0M.MISS10NER op French Hoek v. Hugo. ' 33. A riparian proprietor has no right to divert the water running in two springs, if in doing so the proprietor on the other side of the spring would sttstaiii asensiVjleinjiuy. And this latter is entitled to an injunction against the former to make him cease to interfere w'ith the water. English, French and Dutch laws are similar on this matter. Miner V. (Ulvioiir, 12 Moo P. C. 131. Vana Breda v. Silber- haner, 22 L. T. Hep. N. S. 667 ; L. Rep. 3 P. C. 84. NouTH .Shore Eau.way Co. v. Pion '■' 34. The appellants made a raihvay upon the loreshore of a navigable river, by means of an embankment extending along the entire length of the respondents' frontage, cutting off" all access to theAvater from the respondents' land except through one opening left in the embankment and another opening just ovttside the respondents' boundary. The Judicial Committee held, that, by the French law, the respondents, as riparian owners, had the same rights of a(xes el sortie as they would have had if the river had not been navigable ; that the above obstructio]i to suc'h rights without parliamentary atxthority was an actionable wa-ong ; and that the substitixted openings above-mentioned were no answer to a claim lor indemnity Earl Selborne, p. 610 : — The appellants in this case are a Canadian railway company, against whom an action was brouglit Iiy the respondents, tanners at Quebec, in October, 18>^;5. The respfnidents 1 Cape of Gool Hope, 188« Murcli 27, LIX Law Times X. S. O.'i. 2 S. C. C'linada, 1889 August 1, Aiipeal Cnses Olli. mss eoBH 698 EIPARIAN PROPRIETORS BIGHTS OF carried on their business upon riparian land belonging to them, which had a frontage of considerable length to the St. Charleo, a tidal navigable river within the limits of the harbor of Quebec. The apjjellants, in 1883, made their railway upon the foreshore of that river, by means of an embankment, extending along the entire length of the respondents' frontage, not, however, taking any part of the respondents' land; and in this embankment they left one opening, 15 feet wide and 12 or 13 feet high, opposite to the tannery, through which the river was accessible at low tides and at some (but not all) high tides. With that exception, they cut off all access to the water from the respondents' land, which, before those works were executed, was always accessible for boats at high water along its whole frontage. The appellants also made another opening, just outside the boundary of the respondents' land opposite to the end of a public street, through which the respondents might, except at certain high tides, have found access by means of that street to the water. No compensation or indenmity was paid or offered by the appellants to the respondents ; whc brought their action, complain- ing that they had been iin'awfuUy shut out from their access to the river, and asking for damages, and that the company might be com- pelled to demolish and reiaove the obstruction. On the 26th of March. ISba, Mr. Justice Casault, of the Superior Court of Lower Canada, gave judgment for the plaintiffs, not order- ing the demolition or removal of the railway company's works, but giving $5,500 as damages for the permanent deterioration and dimi- nution in value of the plaintiff's' land, independently of the trade carried on upon it. On appeal, the Court of Queen's Bench for Lower Canada, by a majority of four out of live judges, reversed that judgment. The grounds of reversal, as stated on the face of the order, were : that the company had not taken any part of the ])lain- tiffs' land, nor caused it any physical damage (" dommage matdriel"), but " had only by construotir.g their railway between the plaintiffs' " property and the river, deprived them of the power, which they " had previously had, of communicating freely with the river, and " of the advantages of the navigation for the purposes of their busi- " ness ; and that this power of access to the river was not an ox- " elusive advantage, but on the contrary, might be exercised by all " the Queen's subjects, and conferred upon the plaintiffs no more " than indirect advantages, without giving them the right to an " indemnity for the loss of those advantages." The plaintiffs appealed to the Supreme Court of Canada, which, on the 20th of June, 1887 (also by a majority of four out of live judges), reversed the judgment of the Court of Queen's Bench, and restored and affirmed that of the Superior Court of Lower Canada, The present appeal to Her Majesty in council is from that judgment. It appears clear to their Lordships that the judgment of the Court of Queen's Bench, which the Supreme Court reversed, could not bo maintained upon the grounds assigned for it, unless the rights which belong by the law of Lower Canada to the owners of riparian lands, on the banks of a river which is not navigable, are denied to them when the river is (as in this case) navigable and tidal. Unless that M I EIPARIAN PROPRIETORS 699 RI4JHTN OV proposition can be establisbed, what was said by Lord Cairns in the case oi Lyon v. FishmorKjers Co. (1 App. Ca. 671) must bo as true and as applicable in Quebec as in England. Distinguishing the public right of navigation from the rights belonging to the owner of the riparian land, as such, His Lordship said : " When this right of navi- gation is connected with an exclusive access to and from a ])arti- cular wharf, it assumes a very ditferent character. It ceases to bo a right held in common with the rest of the public, for other mem- bers of the public have no access to or from the river at the particu- lar place, and it becomes a form of enjoyment of the land and of the river in connection with the land, the disturbance of which may be vindicated in damages by an action or restrained by an injunction." In the view of their Lordships, this case raises for decision two, and on!}' two, substantial questions; tirst, whether the land of the respondents (plaintitts below) has suffered, by the execution of the railway comjiany's works, any such damage or injury as to make an indemnity due to them from the company ; and, secondly, whether the res])ondents have taken the proper coui'se for obtaining that indejnnitj-, if it is their right. In their Lordships' judgment, the lirst of those questions must, upon the facts, be answered in the res- pondents' favor, unless it can be made out that by reason of some distinction, in the law of Lower Canada, between navigable or tidal and non-navigable rivers, they had not those rights as rip.-irian owncro in the locus in quo, which they would have had if the river had not been navigable, Upon this point their Lordships consider that the burden of proof was upon the appellants ; the Supreme Court has held the contrary ; and their Lordships could not atlvise Her Ma- jesty to reverse the judgment of that Court, unless satisfied that it was erroneous. In Miner v, Gilmour (12 Moore, 157), this tribunal determined, after two arguments (in 1858), that with respect to riparian rights (in that ca.se the river was not tidal or navigable), there was '' no material distinction between the law of Lower Canada and the law of Kngland." Lord Kingsdown delivering the judgment of the Committee, said : — " By the general law applicable to running streams, every ripa- '• rian j)roprietor has a right to what may be called the onlinaiy '■ use of the wa'er flowing past his land ; for instance, to the reason- " able use of the water for his domestic purposes, and for his cattle ; '■ but, further, he has a right to the use of it for any purpose, or '• what may be deemed the extraordinary use of it, provided he does " not thereby interfere with the rights of other proprietors, either " al)ove or below him." The ipiestion, whether this general law was, in England, applic- able to navigable and tidal rivers arose, and (with the qualitication only that the public right of navigation must not be oiistructed or interfered with) was decided in the affirmative by the House of Lords, in Lyon v. Fishmoni/crs Co. (1 App. Ca. 671). That decision was arrived at, not upon English authorities only, but on grounds of rejiscii anil ])rincipte, which (if sound, as thoir Loniships think them) must be applicable to every country in which the same gene- i I 700 EIPARIAN PEOPEI ETOPS 11 niOIITM ov ral law of riparian rights prevails, unless excluded by some positive rule or binding authority of the lex loci. The reasons assigned by Chief Justice Dorion in the Court of Queen's Bench, for the judg- ment of that Court, were not addressed to any distinction in prin- ciple between riparian rights on the banks of navigable or tidal, and on those of non-navigable rivers, but they treated the complaint as if it turned iijjon a claim to use, not the plaintitl's' riparian land, but the beach or foreshore belonging to the Crown, for access to the river. If this had been so, and if the plaintiffs' land had been at all times divided from the river by a dry beach or foreshore in the nature of a public highway, open to all the Queen's subjects, the same question might have arisen here, which was considered and determined in England in the case of the Metropolitan Board of Works V. McCartiiy ( 7 Eng. & Ir. App., p. 243). But that is not the state of facts with which their Lordships have to deal. The greve, or foreshore, is not mentioned in the plaintilfs' declaration, which alleges an obstruction of the plaintiffs' access to " the river St. Char- les," and the construction of a quai, about 15 feet high, completely .shutting off the plaintiffs' access to the said "river;" and that the ])laintiffs' access from their property to the " said river" had been rendered impossible. The fact being established bj-fhe evidence, that the plaintiffs' bank was always accessible with boats at high water, what was said in Lyon v. Fishmonf/ers' Co. (1 App. Ca. 683), is equally applicable here: — " It is true that the bank of a tidal river, " of wliich the foreshore is left bare at low water, is not always in '• contact with the flow of the stream; but it is in such contact, for " a great part of every day. in the ordinary and regular course of " nature, wliich is an amply sufficient foundation for a natural ripa- " rian right.'" The only ground of distinction suggested between a non-navigable river (such as that in Miner v. Gilmour) and a navigable or tidal river, forming at high water the boundaiy of riparian land, was that in the case of a non-navigable river the riparian owner is pro- prietor of the bed of the river, ad medium filum a//ua;, which, in the case of a non-navigable river such as the St. Charles, belongs to the Crown. The same distinction was contended for in Lyon v. Fish- mongers' Comjmny ; but the House of Lords, on grounds with which their Lordships concur, thought it immaterial. Lord Cairns rejec- ted the jiroposition that the right of a riparian owner to the use of the stream depends on ownership of the soil of the stream ; he ado])- ted the words of Lord AVensleydale in Chasemore v. Richard (7 i\. L. 372) ; — " The subject of right to streams of water flowing on the " surface has been of late years fully discussed, and by a series of '' carefully considered judgments placed upon a clear and satisfac- " tory footing. It has now been settled that the right to the enjoyment " of a natural stream of water on the surface, ex jure natura', be- " longs to the proprietor of the adjoining lands, as a natural inci- " dent to the right to the soil itself, and that he is entitled to the " benetit of it, as he is to all the other natural advantages belong- " ing to the land of which lie is the owner. He has the right to have " it come to him in its natural state, in flow, quantity and quality, RIPARIAX i'EOPRIETORS 701 RIGHTS OF " and to go from him without obstruction, upon the same principle " that he is entitled to the supjjort of h's neii^hbour's soil for his " own in its natural state." It Avas said in the same case of Lyon v. Fishmongers' Company, ]). 683: "It is, of course, necessary for the existence of a riparian " right that the land should be in contact with the flow of the " stream ; but lateral contact is asgood.Jwre natunv. as vertical; and " not only the word ' riparian," but the best aut(jritios, such as Miner " V, GUmour, and the passage which one of your Lordshijjs has read " from Lord Wensleydale's judgment in Chascmore v. Richards, " state the doctrine in terms which point to lateral contact ralhcr " than vertical." This is followed by the words already cited as to its being sufficient thatthiscontact should exist daily, in the ordinary and regular course of nature, though it may not continue during the whole of anj' day. Tboir Iiordships have considered the authorities referred to in support of this part of the apiDellants' argument, and they are of opinion that none of them tend to establish the non-existence of riparian rights upon navigable or tidal rivers in Lower Canada, or to show that the obstruction of such rights, without Parliamentary authorit}', would not be an actionable wrong, or that, if in a case like the present, the riparian owner would be entitled to indemnity, under a statute authorizing the works on condition of indemnity, the substituted access by openings, such as those which the appel- lants in this case have left, would be an answer to the claim for in- demnity. The French law prevailing in Lower Canada recognizes generally, in cases of this nature, the right of acces and sortie ; and under that law any substantial obstruction of it, by persons in other respects authorized, would give {prima facie) a right to indenmity. The only authorities relied upon by the appellants to which their Lordships think it necessary now to refer, are two Lower Canada cases, the Queen v Baird (4 L. C. £. p.325), and Starns v. Molson (M. L. E., 1 Q. B. pp. 425-431), and a modern French case i'n /e Joanne Rousseray, quoted from the second part of Sirey's Decisions of the Imperial Court in 1865. In the Queen v. Baird there was upon the facts, as proved, no question of rijjarian right, or of any obstruction of access to the river. The dispute related to land which the nuns of a certain reli- gious house at Quebec had reclaimed from the foreshore of the river, so that the water ceased to flow over it (4 L. C. E., p. 330), and to which the Crown had afterwards established its title. The only ques- tion was whether the Crown could grant it to other persons, without giving that relig'OMs house a right of preference or pre-em])tion, and this question was detenrJned in favour of the Crown. In the grant actually made, there was a condition, reserving free access to the inhabitants there, and to the public generally, to i)ass and repass at all times over the wharves and roads. That case throws no light upon the present controversy. In Sfarnes v. Molson (M. L. R., 1 Q. B. 425, decided in 1885) riparian land fronting on the River St. Lawrence was taken by a railway company, and a separate sum was assessed as indemnity for V:- I r: ■ i: i .; \V i V j I ..yfm jllf 702 EIPAEIAN PlfOPEIETOHS 1: RIOIITM OF Iho loss of the river frontage belonging to that land. This the Court held to be wrong, on the ground, apparently, that nothing ought to have been valued, except the land taken to which that frontage belonged. It is not clear to their Lordships that the Court, in that case, meant to determine that the land ought to have been valued as if it had no frontage to the Eiver St. Lawrence, or as if it possessed no I'iparian right. If the decision ought to be regarded as having any such consequence, their Lordships could not hold themselves bound 1)3' it upon the present appeal. See Sea coast : properly of rocks on VSR OF IIR.V<;iIEN. Ince v. Thorburx. 35. Under the regulation made by the Superintendant of Trade in China, 1854, art. 5, the puolic has a right to use beach ground, that is the sides of the rivers, according to usage in each district, namely, to have access to the rivers, to beach boats and other thing of that nature. The owners of the land must respect these uses, and erect no building thereon. RIVERS VNE OF Caldwell v. Mclaue.v ^ 36. The right conferred upon owners of higher lauds to iloat timber and logs down streams by the Ontario Statute, 12 Vict., ch. 87, s. 5, is not limited to such streams as are in their natural state, without improvements, but extends to the user without compensation of all improvements upon such streams, even when such streams have been rendered float- able thereby. Lord Blackburn, p. 404 ; — The defendant has always been ready and willing to pay for the use of improvements ; that is obviously fair and just, but it is not pretended that the statutes provido in terms that if ho uses such improvements he shall pay for them. Had either of them done so, the intention of the Legislature to authorize liim to pass over the obstacle by means of the improvement would have been quite clear. The absence of any such provision is strongly relied on as showing that the Legislature did not so intend. The 2)laintitt' relies on his common law right, as owner of the soil, to prevent any one from using his soil in any way which ho does not choose to allow, unless, by statute, tbt'* right is abridged, as it may be. There has been a considerable diversity of ojiinion amongst the Judges in the courts below. Their Lordships have perused their opinions with much advantage and have with great care considered the reasons of those from whom they differ. In the result thoy 1 S. C. China and Japan, 188G Feb. 24, L. R. XI Appeal Cases 180. 2 S. C. Canada, 1884 April 7, L. U. IX Appeal Cases 392. EIVEES r03 VHK OF como to the conclusion that the judgment of the Court of Appeal for Ontario is right and nhould be restored. Thoy think that there can be no doubt that by the law of Kngland the owner of the soil on both sides of a running stream, whothor it be navigable or not, is prima facie at least, owner of the soil which forms the bed of the stream, and as owner of his land covered by water, has all the rights of a landowner. But this is subject to ail rights of the owners above him to have the water flow away from their land, and to all rights of the owners below him to have the flow to come down to them as it was wont. It is also subject to any rights which the public have over it. One of the practicallj'^ most important rights of the owner of a portion of the soil of the river is the right to use the water for a mill, and in order to do ho, or indeed for any other lawful purpose, to erect a dam on it. The public may have rights to navigate the stream, and whenever such a right exists the right of the mill-owner and the right of the public come into conflict. They may co-exist, but when thoy do, one or other must bo modiflcd. The rights of the public to navigate a stream may bo created either by prescription or by dedication by the owner of the land within time of legal memory. And in an old settled country like England it could seldom be material to enquire further than as to those modes of creating such a right. But when the law of England was taken out to a new, unsettled country where prescription could not exist, and dedication could rarely exist till after the country was to some extent settled, it became important to enquire whether the principles of the common law did not give such a right indepen dent of any user, wherever the stream was, in its nature, cajiable of being navigated. ]S"o question arises in the present case as to this right of navigation ; and, at all events, up to a period later than 1849, it was a question of great doubt what the law of Upper- Canada was on this subject. The right now claimed to use streams, not navigable for general purposes, to float down timber, was one, which in England, if it existed at all from the nature of the country, could not be important ; it never came into question in any case of which we are aware. It was one which, in a new wild country overgrown with timber might be very important, and it must be a question of doubt what was the right. The owner of the land covered with water, over which a stream flows, has the unquestioned right to erect a mill on it, if ho does not thereby infringe on any right of the proprietors above or below him, or on the public rights. The doubts as to what was the extent of the public right over such streams cast a doubt on the extent to \vhich it was lawful to erect mill dams. This enactment, it is to be observed, became law in 1849, and has not been altered since. In 1813, the case of Boale v. Dickson, was decided in the Court of Common pleas of Upper Canada. The ques- tion there was to a claim for the use and occupation of a slide on tho Indian Eivcr. Tho Court of Common Pleas thougiit that if the slide was on a stream within the meaning of tho enactment their Lord- ships are now considering, the plaintiff must fail ; whether, if the 704 EIVERS m^ m ^Mii IJNK OF the statute applies, thin oonHoquem-e would follow, their Lordships need not stop to cmiuiro. So thinking, the Court of Common Pleas put a construction on the Act. The Vice-Chancellor. in the present case, after the evidence was heard, said, uildressing the defendant's counsel : — " I think, Mr. Bethune, you stated that if I considered myself bound by the authority of Boale V. Dickson, there was little use in arguing the case. It seonis to me that I am bound by that case in this respect, that I ought to be bound by and respect the ruling of a Court of co-ordinat'» jurisdiction, though not in the same sense as I would be bound to follow a judgment of the Court of Appeal. If the interpretation placed upon it in Boale v. Dickson be the construction this statute is to bear in regard to improvements upon rivers and their floatability, I understond that case to deter- mine that if any improvements are necessary to render streams floatable, the statute does not apply, that it does not alter the char- acter of the private streams, and that the owner of the land over which the stream flows has the right to jn-event intrusion upon it. It therefore comes to be a question of evidence as to whether the streams mentioned here can be considered floatable without artifi- cial aids." The Judges of the Court of Appeal for Ontario, all agreed that Vice-Chancellor Proudfoot had correctly apprehended the construc- tion put upon the statute by the Court in Boale v. Dickson, and that he could not properly disregard the decision of a Court of co-ordi- nate jurisdiction, but all four thought that construction wrong ; Burton J., though dissenting from his brothers, expressly saying: — " I quite agree with them in their view of the doctrine laid down in Boale v. Dickson, and think there is nothing to warrant the qua- lified construction placed upon Sect. 15 of the 12th Vict., chap. 87, by the learned judge who delivered the judgment in that case ; but I am unable to bring myself to the conclusion that the mere permis- sion or the recognition of the right to float all streams during fresh- ets makes the entire ^tveixmH publici juris, although, in point of fact, many portions of it may be quite impassable, even in times of fresh- ets, for the smallest description of timber or other article of mer- chandize. The Judges in the Supreme Court thought that the construction put upon the statute in Boale v. Dickson was right and the Chief Justice, Sir W. Ritchie thought, that even if wrong, it ought to be maintained on the ground taken by Lord Ellenborough in Doe and Otley V. Manning, 9 East 71, that in questions of conveyancing it was important to adhere to decided cases even if convinced they were originally wrong. The doctrine has often been recognized. The maxim ^'Communis error facit jus " la peculiarly applicable to conveyancing questions. But this is not a question of conveyancing, and their Lordships do not think that there is any ground for saying that Boale v. Dickson, if wrong, should be followed. And their Lordships agree with the Judges in the Court of Appeal for Ontario in thinking that there is nothing to justify any Court in construing the words " all streams " as meaning such RIVEES 706 VHK OF «troams only as aro at all placcH floatable. They do not think that every little rill, not capal)le of floating even u luilrush, is a stream within the meaning of the Act. But when once it is shown that there is a suflioient body of water ai)ove and below the spot where the natural impediment renders the stream at that spot practi- cally unfloatable, it does not make it cease to bo a ]>art of the stream in the onlinary sense of the words. It has been argued that though this might have been the natural meaning of the words, if the enactment had been "that it should be lawful to float sawn timber rafts and craft down all streams in Upper (Janada at all seasons, " that the legislature here confined the enact- ment to making it lawful "during the spring, summer and autumn freshets." And that, it is argued, shows an intention to cut down the large words " all streams." Their Lordships do not assent to this ai'gument. Probably the Legislature contined the enactment to the seasons during which lumberers ordinarily ply their trade, think- ing it better to leave the rights of all parties at all other seasons untouched. Whatever was their motive, it seems clear, on the construction of the enactment, that if a lumberer claims a right at any other period than during the freshets to float timber along a ])ortioii of a stream, he must rest his claim on something else than this enactment. It is not, however, an objection to his right under this enactment to float during freshets, that he may on the same part of the stream be entitled, on other grounds, to float at all times. Their Lordships do not think that the limitation of the right in the stream to one period of the year prevents that from being a part of the stream which would otherwise, in the ordinary sense of language, be a part of the stream, even if the existence of an impediment there makes it not practically available for the purposes of the lum- berer even in freshets. The respondent's construction of the enact- ment seems to them to require the introduction by implication of some such words as these : " except on such parts of the streams as are, owing to presence of an impediment such as a waterfall, not practically available for the jjurpose of floating timber, until some improvements are made." There does not seem to their Lordships to be any sufficient reason for implying this or any similar qualification. It is quite true that it is not to be presumed that the Legislature interferes with any man's private property without compensation. But if the whole stream is floatable during the freshets it cannot be doubted that the Legislature did mean, with the object of aftbrding facility to lumberers, to carry their timber to market, to say that they should have the right te float down the stream at these seasons without obstruction by the owners of the bed of the river — without paying them anything. If, as seems to be the opinion of Burton, J., the principles of the common law could be worked out so as to give this right, at any rate the Legislature in 1849 did not know this, or mean to declare it. Without declaring what the law then was, they enacted that " from this time, 1849, forward the law shall be as wo now enact. " It is, however, quite true that no power is given by the statute 45 I Mr 70C IIIVKKS tl m VHK OF to miiko practically floatable s])()(h wliich are not so in their natural Htale, and that tlio Lef^ihlatiin', wlio must he taken to know tliat such slrearnH an this Upper Mississipjii were likely to exist in the unimproved parts of tlie country, must have contemplated that, liefore the right they yavo became ])ractically useful, something must be done which would he a tresspass if done without the autho- rity of the owner of the soil. There does not seem to be any great difficulty in holding that, if all that was done was to remove some existing obstruction, as by blowing up by a rock which impeded the passage, and thus putting the bed of the stream into the state in which it would have ueen il' the rock had never existed, a right to float timber down that spot might be exercised, even though the blowing up of the rock could not be justifled against the owner of it. There is more difticulty in dealing with the case of a dam maintained by or with the assent of the owner of the soil for the purpose of making the part of the stream practicallj' floatable, which was not so in its natural state. Tliere is certainly no obligation on the jxirson who makes and maintains such a ilam to continue to maintain it ; if he ceases to Uo so, it becomes useless, and can only, if at all, be made useful by forming a joint stock company for the purpose of doing so ; and if the Court of Commons Pleas in Boale v. Dickson were right in thinking that, if the statute applies, a promise to pay slidage for the use and occupation of such works, in consideration that the plaintiff would allow the defendant to use them, should not be enforced, the Legislature have improvidently reduced the inducement to make the .stream at such a part practically' floatable. But, though this may by so, the question remains whether the words of the Legisla- ture do not express an intention that, when the part of the stream oouUl be used, it should be lawful for all persons to use it. It does not seem to their Lordships that the private riglit, which the owner of this spot claims, to monopolize all passage there, is one which the Legislature were likely to regard with favour, and in the earlier legislation they had, without scruple, cast on the owners of " dams logallj' erected " the obligation, at their own expense, to make suc-li dams j)assable for lumber ; if the law was, (contrary to what is laid down in Boale v. Dickson,) that reasonable compensation should be payable for ihevseand occupation of works maintained for the purpose of rendering the portion of the stream practically useful for floating purposes, there would be no hardship at all ; if the Legislature had inserted a provision that such should be the law, there could have been no doubt of their intention. They have not inserted such a provision ; but, though that makes the case somewhat difficult, their Lordships do not think it enough to justify what seems to them a somewhat violent departure from the plain meaning of the words. Their Lordships will therefore humbly advise Her Majesty that the judgment of the Supreme Court should be reversed and that of the Court of Appeal restored. They do not think there is any reason for departing from the general rule that, the costs of the appeal should be borne by the unsuccessful party the respondent. I' I RIVKKS 707 VNK OF RoOTn V. T?ATTl5 ' 37. A riparian owner is ul lil)i»rty to coiistrui't and attach to his bank a float in<^ wharl and boalliousi', tho sarao not bi'iug an obstruttion to th(^ navigation, and is entitled to maintain an action lor damages in respect thereof oaiised by any unauthorized interlerencc with the How and purity of the stream. itiuiiTNOFNKiGMioRNovRRVNNATieABLE See HvAHNlOK : Usdem verbis. s SUMMARY and .SALE AncTioM Bond ok indkmmtv By iirokkiis By tkstamkntary bxkcutokb Delivkky DKacniPTioN OK iinuNDARiES. See Bol'NUAiuES ; construction of titles as 10 lioundary line. Fraudulent futuri; .succesbio.m Intki'est on price of Judiciary Law op Lower Canada and ot KN(iI,AND SIMILAR Nullity ok Ok .minors' phoherty. See Minor- ity : iisdem verbis. Of SmiSTITUTBD PROPBBTY. See SousTiTUTioN ; iisdem verbis. Purchase »y attorneys RidiiT OF re-sale RiOIlT OF UNPAID VENDOR RldllT OK TENANT RuillT TO RESCIND Stoppaob in transitu Title To trdstke Warranty against eviction What is When the contract is perfect... PAIIBH 709 700 710 710 710 714 715 717 718 718 718 I 719 719 720 722 722 722 720 727 727 727 727 SALVAGE Duties of the salvor Lien on cargo >ur salvage ser- vices Parties liahle to pay salvage services ouantum of salvage services when completkd When due SCHOOL Endowed School Aot SCIRE FACIAS See Writs of Preroiiative ■.iisdem verbis. SEIGXIOR Corporations Rights over unnavigablk rivers.. See Feddal tenure, Prescription. SEA COAST Property of rocks on SEPARATION Allowance to wife.. From bed and board. Op property 731 732 734 734 739 739 74ti 746 747 747 747 748 748 1 Ontario, 1889 Feb. 1, L. R. XV Appeal Cases 188. ! ii m SU.>1.MAIJV HKKVITIJDK INI>IVIHIIII,«. S(e I'llKfll.'RIPTION eihlfin vfrln), IlKi'AlltH (IK ItOAII TllANHh'KIt (IK WaTKII-('(iI'11»K »(• OlioWN i.AMiH , iindi'm rerliin. SllKIMKI' (IllANdK OK I'l.ACK UK CONKINiMKNT Rkhi'onhiiiilitv ok USB OK VIOLKNlK Hllll' AM) SIIIIMMNC; See Akkukkhitmknt, ('oi.msion, DoTTOMKY ANO UkSI'oNDKNTIA, MkJICMANT HIIII-I'INd. SKiNATI'KK See KviKKNCK. sLAN-nrcii DAMAdlNO .STATKMKNTS. Sec DaM- AdKH ; iimlrm rerlits, Drkamatukv woiiiih SliAVK TIIADINO (hiui prohaiuti ItKSI'ONSIIllI.r'Y UldllTS OK CAI'TOIiS See KviOKNCK : tlave trade Act. Intkiinationai, law : iia.lem ver- l/h. SOLICITOR See Attohnkv. STAMP Taxation iiy stamp di-ty. See r,Kci- Irtr.ATUIIK : I,K(118I() 7.'! 7 7r)7 KH 759 7.-)9 I'AimK 1 .STATI'TK OoSHTIllIOTION OK "fi:! UON.STIIIII.'TION OK CUNHULIDATKU HTATUTK 77'i .STATt'TK OK FRAUDS CaHKH NOT WITHIN 772 NOTK. oil MKMUIIANIIUU IN WHITINO... 77J STKKKT See lllllllWAV, I'llKHCIlll'TION. SUllltOUATION SUIISTITUTKII I'llOl'KllTY 774 What coNHTiTUTKH 774 See Inhukanck: eoilem verbo. SlJHSTITfITIO\ Capacity oip tiik niniHTiTUTB 7 75 CoNSTitucrioN OK 77ii Kkkkot ok 777 RldllT OK TIIK HIJIIHTITUTK, 1m SALK ok Si;ilSTITUTKI) IMIUl'KIITV 7H4 SUCCK«SION ACCgPTANCK OK 788 IIkihs ok natuiiai, ciiimiiikn 788 I'UIICIIAHK OC KUTUHK .SVl! I'llH aoiiil'TiON : litdem verhii, Sai.h; iiidem verbif. See Lkoacv. SintETVSHIP liV PUIII.IC OKKIOKIIH 789 1!y a MAIlltlKI) WOMAN 790 coupknsation 790 Conhthiiction ok 790 DiaCMAKdK OK TIIK. SURKTY 792 Imputation. .Sec Ihputation ; I't- dem verbit. IMPI.IKII j& I'AdKR 77i 774 774 77n 770 777 78:i 784 788 788 789 790 790 790 79'' M SALE AV<'TION I'AflE V. COWAS.IBK IIdI L.IKK ' 1. Tht^ plaiiitill'iilh'f^t'd in his action thiii ho had hoiight, at a jmblii; ain-tion, the hull of a straiuK'd vt'sscl, .■•oM hy the maHtcr and piirchast'd hy him upon ccrUiin conditionK ap- IXMidcd to th(! «'atalogut' oi" sah', and read out at the auction. and that the vendor had ai)pond('d to i\w nu'morandinu ol" purchuHo Avhich was Kifrncd by his agent aitcr the isale. other conditions dill'ering materially from those upon whicli he had bought. Tht^ action was to recover tlie dillerencc between the original price bid at the auction and the sum realized at a re-sale. The .Tuditial t'cmimittee held, that there was no othei agreement b«^tween the parties than the out* founded on the conditions read out in the aixction room at the sale ; and that the plaintilF having sued upon a dill'erent lontraot which did not give a right of re-sale, was not entitled to recov(>r and ought to have ])een non-suited. See CrAMlNO AND \Va(h:kiN(1 : wages in India. BUND OF INDEMNITY. OsuoHNK V. Kales' 2. An immoveable pro,)erty mortgaged to the extent of ,£3,110 to a third party was sold by the ap[)ellant to the res- pondent for .£2000. A bond of indemnity was given by the vendor for ,£4000 to secure the purchaser against the mort- gage and all other claims that might allect tht> purtthiuser's right to the real estate sold. The condition of the bond was that it would be void, if within a year, the vendor gave the jiurchaser possession and good title free from all hypo- thecs, or returned him je2000 the purchase mouthy. The tim»' elapsed and the vendor neither re-paid the i;2000 nor the mortgage, and thi' bond became absolute. In a suit by the vendor praying for the tuincellation of the bond and offering to repay the ^£2000, the Judicial Com- mittee h(dd, that the bond became absolute by uon fulfil- ment of the condition within the time agi-t>ed. 3. Peiuliug this app(?al, the respondent brought an a(;tiou against the appellant for the full amount of the bond, al- 1 Ceylon, 180() Kcl). 3, III .Moore N. S. ■199. 2 New South Wak-s, ISG'J Jane .'10, II Moore N. S. 100. II 710 UOXn OF IWDEMHriTT. SALE though it exceeded the amount of the purchase money. Judgment ^vas given in his favour for the i;4000; and this judgment was conKrmed by the Judicial Committee, on the ground that it was a question of law and contract, and not of equity. IT Moore, P. C. N. S. 125. BY BROKERS. CowiE V. Eemfrt ' 4. In sales made through the medium of brokers, the con- tract is based upon the bought and sold notes only ; and where they differ materially, the contract is not binding. The Eight Hon. Dr LusiiiN(iTf)N, p. 248 : — Wcare of opinion, that it would bo exceedingly dangerous to the safety of all mercantile transactions, which so mainly depend upon usage, and the observance of it, if we wore to infer from a circumstance of this description, that the jjurchasors were bound by this sold note alone, contrary to the custom, contrary (o the course of the transaction itself, thereby establishing a contract by an act not in itself purporting so to do, and of the consequenees of whidi Mr. Cowie was not apprized, and which no mercantile man could be expected to surmise. by tentahentary exec'ittors. Carter v. Molson " 5. "Where power is given by a will to two of the executors to sell the immoveable property of the estate, a sale by one of them to the other is null and void. 6. And the registration of the deed of sale in -which refer- ence was made to the wall, is a sufficient notice to an onerous creditor of the title under which the debtor held the pro- perty h)'])othecated to him. Beninofielu v. Baxter ' 7. When an executor cannot sue, because his own ads and conduct with reference to the testator's estate arc im- peached, actions which could be brovight by the executor alone, may be taken by an interested party. Travis v. 3Iitnt\ 9 Hare, 150. 8. The purchase of a testator's estate by one of his execn tors was set aside as fraudulent in a suit by the AvidoA\- on grounds of equity. DELIVERY. tJuSHING V. Dui'UV * 9. Under articles 1472, 1025, 1027 -f the Code Civil, de- 1 Calcutta. 1841) Feb. 11, V Mooic 2.32. 2 Quebec, 1885 .July 4, 1,. R. X Appeal Cases GG4. 3 Natal, 1886 Dec. 7, L. R. XII Appi-al Oases 107. 4 Quebec, 1880 April 15, I-. R. V A|ipeal Casei 109. krJ-J SALE 711 DEMVKRY. livery is not necessary in a contract of sale, and the property in the thing sold passes without it. 10. But a sale without delivery and for a nominal price, especially in a case where the vendor is insolvent, is to be presumed simulated and fraudulent. Sir Montague K. Smith. J). 422 ; — The general question was raised, and miu'h discuHsed in the Courts below, whether delivery or diplarc- mmt of the thing sold was neeessury to pass the pr(;perty in it. It was contended that the Canadian law which required diplaccvienf had been altered in this respect by the Canadian Civil Code, as the French law had been by the Code Napoleon. Art. 1472 of the Canadian Code is as follows: — " Sale is a contract by which one party gives a thing to another for a price in inone}' which the latter obliges himself to pay for it. It is pertected by the consent alone of the parties, although the thing sold i)e not tiien delivered, subject nevertheless to the provisions contained in Article 1027." Art. 1025 and 1027, were also referred to. The question was debated in the Courts below whether, under the law established by tliese articles, deplacement or a change of posses- sion was not still necessary to give tiie petitioner i\ title against the assignee in insolvency. Their Lordships, however, do not feel it necessary to determine this (piestion, because, allowing tiie Appel- lant's construction of these Articles to the fullest extent, and assum- ing for the purpose of the present decision that, upon a genuine con- tract of sale, the property sold would pass to the vendee, as regards not only tlie vendor, but third ])crsons, without delivery or diplace- ment, tliey agree with the opinion of Chief Justice Dorion (in which Justices Cross and Tessier concurred) that the transaction in question was not a genuine but a simulated sale, and, if at all real, was a contrivance intended to obtain, under colour of a sale, a security upon the plant and effects, and thus to avoid the delivery of posses- sion which is essential to the validity of a pledge. {Sec, as to pledge. Arts. 11)60-1970, Cana.lian Civil Code.) Prevo,st v. La Compaonie de Five.-s-Lille. ' 11. A sherifl"s sale of a sugar factory with the fixed ma- chinery therein, as of an immoveable, was made free of all charges. The (uistoms authorities, on the next day, before the purchaser could take possession oi' what he had bought, acting under a bref W assistance, seized the whole machinery and refused to give or allow delivery until the whole ex- port duties chargeable in respei;t of the machinery were l^aid. Under the circumstances, the claim of the crown, whether well founded or not, having been made under a warrant 1 Qii(;l)ec, 1885 July IS, I.. II. .\ .\piieiil Cuses 643. II- 712 nKMVERT. SALE ex facie regular, and the seller being", therefore, effectually prevented from giving possession to the purchaser, the latter was relieved from his obligation to pay the price. 12. Article *712 of the Code of Civil Procedure relates only to dispossessing the judgment debtor, but does not cast upon the purchaser the obligation to pay the price and thereafter get possession from a third party as best he may. Lord Watson, p. C-iO: — Their LordshipH are of opinion that neitlier the judgment of the Qucon'.s Bench, nor that of the Superior Court, which was thereby affirmed, with variations, can be Hustained. Both jiulgments are based upon the ground tliat, because the seizure by the Crown upon the 29th of August, and the subsequent detention of the machinery until '^'lyment sliould be made of the customs duties, were, in the opinion of the learned Judges, contrary to law, therefore it was in the power of the ajjpcUant Pi'(5vost, upon ])ay- mentofthe j^rix d' adjudication, io put himself in possession of the pi'operty sold to him. That is a very startling proposition. The Crown made the seizure of the machinery, and kei)t possession of it, in virtue of a warrant m /ar/e regular; and in this appeal, as well as before the Court of Queen's Bench, the Attorney General for the Dominion has appeared and pleaded that the Crown acted within its legal right in seizing and detaining the machinery until customs duties to an amount exceeding $20,(100 were paid. The claim of the Crown might or might not be well I'ounded, but nothing in the pres- ent case is more clearly apparent than the fact that the claim was deliberately preferred, and has been seriously insisted on, and that the appellant Pr<5vost if he had in September 1882 paid the price of $76,000 to the shcritt', could not have obtained possession of the pro- perty which he had purchased, except by paying some 820,000 more which he was not bound to do, or bj"^ entering into a douijtful and, it might be, jjrotracted litigation with the Crown. The practical result of the judgments in the Court.s below is to relieve the seller of any obligation to give delivery of the subjects sold, and to impose upon the purchaser an obligation to pay the price, and thereafter to at- tain possession, in the best waj' he can, it may be, after expensive litigation , and years after he has parted with the jmrchase money. It ajJiDears to their Lordships that such a result is inconsistent with the essential principles of the contract of sale, and is not justified by any peculiarity of the Canadian law. Art. 1491, C. C, declares that, whilst the rules concerning the for- malities and proceedings in judicial sales are to be found in the Civj! Procedure code, sucli sales " are subject to the rules generally ajjpli- " caijle to the contract of sale, when these are not inconsistent with " special laws or any article of this Code." By Art. 1491, C. C, the principal obligations of the seller, arising out of the contract of sale, are detined to be, " 1, the deliver}-, and, 2, the warranty of (he tiling sold." By Art. 1492 of the same Code, delivery is declared to be *' the transfer of a thing sold into the power and posse jsion of the buyer;" whilst the following Article (1493) is to the etieet that SALE 713 nELIVEBT. the obligation of the seller to give delivery is satit^fied ''when ho " jjuts the buyer in actual possession ofth. thing, or consents to " such possession being taken by him, and all hindrances thereto " are removed." These articles of the Civil Code merely lay down certain well known rules as to delivery, incidental to the contract of sale, which are common to most, if not to all systems of jurisprudence, and these rules are not in the least inconsistent with any of the formalities and proceedings prescribed by the Code of Civil Procedure in the case of judicial sales. Upon the completion of the contract, there imme- iliately arise mutual rights and obligations on the part of the seller and the purchaser. When the subject of the sale is an immeublc, the obligation of the seller is to give the purchaser peaceable possession, and also a clear title, to enable him to defend his possession, and it is the right of the seller, upon fultilment of that obligation, to de- mand and receive payment of the price. On the other hand, the obligation of the purchaser is to pay the price ujion delivery of pos- session and of a title sufficient to protect him from eviction. ^Neither of the parties can exact performance from the other, except upon the condition of fulfilling his own part of the contract. It was urged on behalf of the respondent Company that the sale to the appellant was perfected by the adjudication of the slieritl' upon the 28th August 1882, and that such adjudicatio , had the legal effect of transferring the property to the appellant, and of giving liim, at the same time, an unencumbered title. Now, it is not matter of dis- l^ute that the sugar factory buiklings and the machinery were sold together as an ivimeuble, and, that being the argument of the respon- dent Company does not appear to be consistent with Article "OG of the Procedure Code, which declares that " no adjudication is perfect " until the price is paid, and then it conveys ownership from the " time of its date." But, assuming that the adjudication did pass the property of the thing sold to the purchaser, that would not, in the opinion of their Lordships, relieve the seller from the performance of the legal obligations incumbent upon him, arising out of the com- pleted contract of sale. The respondent's argument upon this part of the case confounded two matters which are essentially distinct, the perfection of the contract and its due performance. If the appel- lant had bought a mere title there would have been room for the respondent's contention, but the thing exposed to sale by the slierifi' and purchased by the appellant was a sugar factory, and the obliga- tion of the seller, under the completed contract of sale and purchase, was to give him actual possession of the factory. It was also suggested, in the argument for the respondents, that, in the case of a judicial sale, it lay with the purchaser to take Judi- cial proceedings, if these became necessarj', for attaining possession of the proj)erty sold to him. The suggestion was based on the terms of Article 71U of the Procedure Code, which provides that a pur- chaser, who cannot obtain delivery of the property sold from the judgment debtor, must demand it of the sheriff, and upon the sheriff's return or certiticate of the refusal to deliver, may apply to the ('ourt for an order commanding the sheriff to dispossess the debtor, and to Ar lit 1U DELIVERY. SALE put the purchaser in possesBion. The remedy thus provided is a num- mary method of ejecting the judgment debtor, whose right and in- terest in the property has already been extinguished by a series of regular judicial proceedings. It has no analogy to the case of a pre- ferable claim, such as is here asserted by the Crown, coupled with actual possession by the claimant, imder a formal legal wanant. A claim of that kind, even assuming that it may ultimately prove to be invalid, can only be determined, and possession recovered, liy means of a new litigation which may last for years. It would be contrary to well recognized ])rinciplcs of law and equity to hold, and there is no authority to be found, either in the Civil or Proce- dure Code, for holding that such a hindrance to the purchaser's ob- taining possession must, in the case of an ordinary contract of sale, and in the absence of special circumstances, be removed by him, at his own expense, and not by the seller. Their Lordsliips do not consider it necessary, for the purposes of this case, to decide any of the questions which have been argued before tliem, in regard to tlie right of the Crown, either at common law, or under the provisions of the Dominion Act, 40 Vict., c. 10, to seize and retain possession of the machineiy in question. It appears to their Lordships to be quite sufficient for the decision of the case between tlie original i)artie8 to it, that no otter has been made to implement the sale of the 28th August, 1882, by delivering ])osscs- sion to the jinrchaser ; and that, in point of fact, neither the sheriff nor the respondents have ever been in a position enabling them to give delivery to the ai^pellant, in terms of articles 1491. 1-192, and 1493 of the Civil Code. Accordingly their Lordshi])s will humbly advise Iler Majesty to reverse the juiigment of the Superior Court, dated the 29th Decem- ber 1882, and also the judgment of the Court of Queen's Bench da- ted the 23rd January," 1883, and to grant the prayer of the ap])el- lant's petition to have it declared that he is freed from his obligation to pay the purchase money, and to dismiss the petition of the res- pondents fo''/>Z/e cnchere, with costs to be i)aid by the respondents to the appellant of all the proceedings in both Courts, the I'cspon- dents must also pay to the appellant his costs of this appeal. There will be no order as to the costs of the Crown. See DAMAGE : non delii^eri/ in sales. DKBCKIPTIOX OF IIOIJKDAKIEN. li/les us to boundarij line. See BoUNDAKY : construction of Godfrey v. Poole ' 18. Au assignment in trust by a debtor to a third party with the object of realizing' i:he real estate to pay oil' all debts, and with instructions to hold the surplus in trust for the separate use of the debtor's wife and children, is not revo- 1 Niw So'ith Wal<'S, 1888 March 17, L. R. Ill Appeiil Cases 497. SALK 715 red, by FRAIiniJL,El«T. cable ; and such deed is not frauduleut or void as against the creditors' interests. Thompson v. Webster, 4 Drem. 632 ; Clarke V. Wriffht, 6 H. iV N. 875 ; Doe d'O/f/ej/ v. Mannin<>; !> East, 59 ; Dalphin v. Aymard, L. R. 4 H. L. 500. See Fraud. Sir Barnes Peacock, p. 502 : — There is no priiici])le, nor is tiiero, so far as their Lordships know, any decision, which supjiorts the position that a deed which contemplates the full payment of all creditors a.s its primary object, can be held void as intended to defeat or delay creditors. FUTURE SUCCESSIOW. (todfray v. Godfray 14. A sale by an expectaut heir of his right iu a future successiou is by the Normau law voidable, and may be set aside by the courts upon demand made by an interested party. But such sale is not absolutely void. Lord Justice Turner, p. 387 : — No authority, then, has been cited, and probably none can be cited, sutHeient in our opinion to show that a sale by an expectant heir of his expected succession, made without the concurrence of the jjerson from whom it is to descend, is absolutely unimpeachable. All the writers and com- mentators on the Norman law treat it as either voidable or void, but in which of those two lights it ought to be viewed there is a great difference of opinion. Writers of great and equal eminence range themselves on ditfereut sides. The controversy extends to transactions of other kinds, whereby future rights are interfereil with or modified. Many of the writers upon the subject make a distinction between contracts forbidden because they affect the rights of indiviiluals, and contracts forbidden as contra boms morts. They consider the former to be only voidal^le, that they are good until set aside by Judicial process, and may be confirmed or rendered indis- putaljly good by the lapse of a short period of prescrijition without reclamation. Thcj'' consider the latter to be absolutely null, as if they had never been made, not ailmitting of confirmation and not requir- ing a judicial sentence to set them aside, and that possession under them is sim])ly adverse and wrongful ])Ossession, Other writers draw no such distinction, but include all sucli contracts in the former class of voidable contracts. The prohibition against an expectant heir dealing for his future inheritance is derived from the civil law. which, amongst other objections to if, treated if as contra honos mores, because inducit twtum captandoR mortis alienw : Vor. Jtir. Civ.; Code, lib.. Y 111, fit. I, (Jl; and the prohibition, as well as the reason for if, were thence imported into the Norman law. It is not perhaps clear, having regard to the relationship of the parties and the rights of 1 Jersey, 1805 July 27, III Moore N. S. aiG. il6 FtlTVKE Mt'l'CESNION. SALE succession coriKoquent upon it, that a case like the present would fall within that principle. But even assuming the contract to be contra bonos mores, the question still remains which of the opinions of the writers on the subject should be adopted, that the contract was void, or that it was only voidable. If we were to rely exclusively or chiefly on the c(m- tinental writers upon the Coutume, it might bo dirticult to arrive at a conclusion on this point ; but we have, upon this subject, the authority of jCe Geyt, as high an authority as can be produced on the local law oi' Jersey In his treatise " Be la Nulliti des Contrats et des Sentences," vol. i. \). Wd, et seq., he discusses the question of the degree of invalidity attributable to contracts of a nature cognate to that in the present case, and like it, prohibited by ihc Coutumier ; deeds by a ])roprietor in possession in favour of some members of his family in derogation of the rights of succession of other members. After reviewing the conflicting opinions of the continental writers on the Coutumier, ho comes to the conclusion that the strictness of the civil law had been much mitigated, and that all such contracts are merely voidable, re- quiring a judicial sentence to supersede them, lie next deals with contracts by expectant heirs, and with respect to these lie comes to the same conclusion, vol. i. p. 122 : " Un autre exemple d'un rontrat contre loy, mats qui n'emporie pas une pleine et absolute nulliti de droit, c'est qitand on contracts de la succession d'un homme vivant, pactum de hereditate viventis." He is treating throughout of the local law of Jersey, upon which his ()])inion ought to be allowed greater weight than that of any of the old French commentators, however eminent, upon the Coutume, and, a fortiori, than that of more modern French writers, who sjieak of the existing law of their own country. The current of modern decisions of the courts of the Island is altogether in accordance with the opinion of Ije Geyt. By the local customary law, parties wronged by unconscionable bargains are allowed a period of thirty years, reckoning from the date of the sale, to set them aside. But the ratio of inadequacy of consideration is strictly defined. " Grand Coutumier." by RouilU, ad finem (Stille de procider), Ixxx. [I"M. Rouen, 15;J9.] Terrien, 329 [Ed. Rouen, 1551:]. According to the Coutumier, in order to justify the interference of the court to set aside a sale, jiroof must be given by the plaintiff that less than half the value has been given for the 1 property purchased. A case of the year 1598, Lempriere v. Trachy, las been cited, from which it woukl appear that the ratio had been altered in Jersey to two-thirds ; but this alteration ajipcars to stand ujjon the questionable authority of the ordinances of the commis- sioners, Messrs, Pyne and Napper\ But whichever of the two be the present legal limit, the residt, in this case, is the same : the cases of sales of property of uncertain value do not fall within the rules. The commentators who are of authority upon the subject lay it down that the process for rescinding a bargain for inade(iuacy of consideration cannot be applied to sales of things of doubtful value. 1 See Report of Commissioners on tlie Laws o( .line;/, 1801, pp. vii. \v. SALE 717 ThiiK, Berault: -" Faber resoult que ladite loy n'n point de lieu en oente de rhoses douteuses. Ce qui fait a la question tant dibattue si clle a lieu en vente declwses univemdles, comme d'une succession, ores que la consistence en soit inconnueau vendeur ; car la ralcur en est incertaine. a cause de V ignorance des debets et rharijes passives: Et consdquement le vendeur nc peut alUguer de deception qui a rei;u un pri.r certain pour une chose incertaine." 1 Berault, 77 [Kd. Rouen, 117<51. J: ''jcr is of thin opinion. " (Euvres de Pothier," To?/i. ix. p. 32(J : [Ed. Jraris, 1827]. The local law oi' Jersey thus providing for tho caso, it is, of course, out of the question to apply the principles of the English law, if, indeed, it could in any case be done. In the view which we have taken of this case it may not, jierhaps, be necessary for us to enter into the question of the validity of the deed of the 17th of July, 1835; but as it was argued that tho whole transaction between these parties was in ert'ect a transaction of settlement of the respondent's successions, and not a jiurchase, it may be right for us to state our opinion as to the effect of this deed. The respondent raises two objections to it : first, that it was not passed on oath, in the usual way; and, secondly, that the perform- ance of the trusts cannot be entbrcod. Until recently trusts were xmknown in Jersey (Eeport of Com- missioners of 1859, p. XXV.). Within the last half-century several instances have occurred of conveyances of land upon trusts for public objects ; two instances are given in the appendix. ' In each case the deed, passed on oath in the usual way, served both as a con- veyance of the land and for the declaration of the trusts. In the present case the property was first conveyed by the deed of the 24th of March, 1885, and the legal ownership has since remained unchanged ; but a subsequent declaration of trust was made by an independent instrument, that of the 17th of July, 1835. Did this require the same formalities as a legal conveyance ? Probably the question has never yet arisen in Jersey, and will now have to be de- termined on principle. There seems to be no ground for holding that such formalities are necessary. A writing signed by the com- petent parties ought surely to be sufficient evidence of the trusts, if the law allows such to be created ; and the law of Jersey does not, it would seem, forbid the creation of trusts by acts i7iter vivos. Eeport of Commissioners of 1859, p. xxv. Provided, then, that the purchase of March, 1835, was free from fraud or inadequacy of consideration, the just conclusion appears to us to be that, originally the transaction was merely voidable. INTEREST ON PRICE OF Stratton v. Symon 15. It was stipulated iu au agreement of sale that the price was to be paid iu iustalmeuts, the four last to be retaiued 1 Auhiu to Th« vSt. Hellier's General Uemetery Company, dated 25th March, 1854. KdRC to The Gas Company, dated the 30th September, 1850. 2 St. Vincent, 1838 Feb. v, II Moore 125. 718 SALE INTKRENT OTi PRICE OF in the hands of the purchaser, by way of security, for the due execution of the conveyance ; and then, the purchaser was to give bills of exchange payable in ninety days for the capital and interest. Under this deed, the purchaser is not held to pay com- pound interest upon any of the pvirchase-money. JUDICIARY WiCKHAM V. New Brunswick and Canada Railway Company ' 16. The purchaser at a judicial sale obtains no more rights in the projicrty sold than those which could be grant- ed by the proprietor before the sale. Lord Chelmsford, ]). 431 : — There in no doubt upon principle, as well as on the authority of the cuhcs cited in the argument at the Bar, that the right of a judgment creditor under an execution is to take the precise interest, and no more, which the del)tor possesHcs in the property seized, and consequently that such property must be sold by the Sheriff, with all the charges and encumbrances, legal and equitable, to which it was subject in the hands of the debtor. In other words, what the debtor has jjower to give is the exact measure of that which the execution creditor has the right to take. £.AW OF Ih la"vv with respect to the completion of a sale. nvlmty of Mauett v. Jeunes * 19. By the law of Jersey, a sale made within the forty days before the death of the vendor, is null, and the heir of the person conveying it may recover back the estate from the purchaser, by refunding the money if he has it ; but when the money has been distributed amongst several per- sons, the buyer must get back the money from them as he can. OF MINORS' PROPERTT. See MINORITY ! usdem verbis. or suBiSTiTCTED PROPERTT. See SUBSTITUTION : Usdem verbis. 1 New Brunswick, 1865 Dec. 22, III Moore 417. 2 Lower Canada, 1847 Dec. 7, VI Moore 131. 3 Lower Canada, 1862 Feb. 7, XV Moore 309. 4 Jersey, 1829 June 26, I Knapp 103. SALE 71!l PDRCIIANG BT ATTORXEYN. PisANi V. Attorney (tenehal for Gibraltor. ' 20. A sale by a client to his attorney was maintained in this cause. lusnchtrausaitious, the burden is upon the attor- ney to show that the bargain is the best that can be made lor his client, as the court will watch them with jealousy. Preci- l>itation will be looked upon with very little favour, and the attorney will better consult his position by procuring the intervention of another professional man. Gibson v, ./e//es (5 Ves. 271 ; Saver// v. Khig, 5 H. L. C. Gn5 ; HiUmttn v. Loi/nes, 4 ilf. tV G- 278 ; Edwards v. William, 32 L. J. (Ch.) 763. nl«HT OF RE>HAl.E. PA(1E v. CoWASJEE El)rL,JEE * 21. If before actual delivery the vendor re-sells the pro- perty on account of the default of the piirchaser, the re-sale does not annul the sale, and the purchaser cannot recover any back deposit of the price, or resist paying any balance which may be still due. The same rule ai>plies where there has been a delivery, and the vendor afterAvards takes the property out of the possession of the purchaiser, and re- sells it. 22. But there may be (^ases where, if goods sold are left in the possession of the vendor, and the purchaser will not remove them and pay the price, after receiving express notice from the vendor that, ii" he fails to do so, the goods will be re-sold, the vendor might re-si'll withou*^ rendering himself liable to an action of trover. L()Ri> CuELMSKORi), \). 52.S : — In I his case the vessel Imd boon (IcHvorcd to the delendant and ho was in eonipleto possc'ssion. Tlic act of tlie plaintift' in retaking and selling her wa.s wrongtul, and entitled the defendant to bring an action of trover, but did not amount to a resciHsion of the contract, li', when the defendant declined to jiay the balance of the ])urehase money, and alto- gether repudiated the agreement, the piaintitl' had taken him at ills word and resumed possession without anything more being saiti, the case might have been different ; but, instead of the plaintiff agreeing to take the vessel b.ick, and resciml the contract, he gave express notice to the defendant tliat the vesHel would be re-sold at his risk, in terms of the conditions of sale. "There is no case to be found in the books where, after a sale and complete delivery of a chattel, and the price not paid, the vendor's taking the property out of the jmrchaser's possession has been held to amount to a rescission of the contract. Martindale v. Smith (1 (i. B. JJef 3s't), and other cases have determined that, where there is an agreement to purchase pro- P • SMBm 1 Gibraltor, 1874 June 23, L. R. V P. C. 51G. 2 Ceylon, 186G Feb. 3, III Moore N. S. 499. m% 720 SALK KIUIIT or Rt>NAI.K. pcrty, to l)c ))iii(l for at futuro time, and tho money in not j)aid at tlio day, tlio jiroperty remaining in the possoHsion of tlio vendor, he haa no riijht to .sell it, and if he does tho piiroiiasor may maintain trover against him. There may he cases where tho vendor might sell without rendering himself iiahlo to an action, as where goods sold are left in the possession of the vendor, and tlio purchaser will not remove them and ])ay tiie price, after receiving express notice from the vendor that, if ho fail to do so, tho goods, will be re-sold. But tho authorities are uniform or this ])oint, that if before actual delivery the vendor re-sells the property while the purchaser is in default, tho re-salo will not iuithorize the purchaser to consider tho contract rescinded, so as to entitle him to recover back any deposit of tho price, or to resist paying any balance i^f it which may be still duo. If this is the case whore the possession of property sold remains with the vendor, d fortiori must it be so where there has boon a delivery, and the vendor takes it out of the possession of the purchaser and re-soUsit." RIGHT OF UNPAID VENDOK. RornECOusTE v. Dupont 23. By the law prevailiug in the Island of Mauritius, the sale of moveables made ou credit, may be resiliated aud the property transferred to the vendor, when default has been made in payment by the purchaser according to the terms of the contract, notwithstanding that their value may have been increased while in the possession of the purchaser. 24. This rule of law is applicable to plant, consisting of sheds, machinery, cattle, implements, and other articles, on a sugar estate. Grick v. Eicuardson '' 25. Unless actual possession of the goods has been deliver- ed to the purchaser, the vendor is not deprived of his right of lien as against the assignees of the purchaser, in the event of his insolvency ; and the same principle applies where the vendors were also warehousemen of the goods sold, under an arrangement with the purchasers to pay warehouse rent. Sir Barnes Peacock, p. 322 : — In the cases of Bloxam v. Sanders, and Bloxam v. Morley, which aro reported in 4 Barnwell and GressweU's Reports, p. 949, Mr. Justice Bayley lay down tho rule very clearly. He says: " Tho seller's right in respect of the price is not a mere lion which he will forfeit if he parts with tho posses- sion, but grows out of his original ownership and dominion ; and Eayment or a tender of the price is a condition precedent on tho uyer's part, but until he makes such payment or tender, he has no right to the possession. If goods are sold upon credit, and nothing 1 Maiiritiug, 18G4 Dec. 2, II Moore X. S. 195. 2 Victoria, 1817 Dec. G, L. R. Ill Appeal Cases 319. SALE 721 iiid at iho )r, lie has lin trover II without iro left in lOvc thorn lio vomlop utlioritirs lie vond(jr s-salo will idoil, HO as r to resist the case vendor, ■, and the o-soUsit." )UPONT ' itius, the L aud the has been he terms nay have [laser, sisting of ■tides, on \R1)S0N * 11 deliver- 18 right of the eveut ?vrhere the Id, under varehouse V. Sanders, mwell and n the rule )f the price the posnes- inion ; and dent on the •, ho has no ind nothing '. HIOIIT OF tJSrPAID VEWnOK, is agri'cd upon as to the time of (loliverii\!f the j^oods, the vendee is immediately entitled to the possession ; j'.nd the rimlil ot' possession and the rii^lit of property rest at onee in him. Hut his ri/^hl of pos- session is not absolute; it is liable to bo defeated if he becomes insolvent before ho obtains possession. "Whether default in payment when the creilit expires will destroy his right of posse;*- i< 'i if ho has not before that time obtained actual possession, and jti, ^ iiini in the same situation as if there had been no bargain for credit, it in not now necessary to infpiire, because this is a case of insc^lvency ; and in cases of insolvency the point seems to be perfectly clear." It seems, therefore, to bo dearly settled, that unless actual po.s- sossion has been delivered to the j)urehaser the vendor is not do- jirived of his right of lien as against the assignees of the purchaser in the event of his insolvency. But the (piestion in this cause arises from the circumstance that the appellants tilled the double character of vendors and warehouse- men. Hy the delivery order it was stated that rent was to com- mence from the 12th of January, 187(5; and it appears that at the time when Webster & Co. obtained a transfer of the goods to them- selves, their clerk had the rent calculated up to the month of July. The question then comes, was the arrangement that warehouse rent was to be paid equivalent to an actual delivery, so as to prevent the vendors from having their right of lien. That point seems to have been determined in the case oi Miles v. Garton et al, which has been cited from the 2nd Crompton and Meeson's Reports, p. 504. The fol- lowii'g is the marginal note in that case: "Goods were sold under an invoice which expressed that they remained at rent. The vendee subsequently accepted a bill drawn by the vendor for tlie jirice which was negotiated by the vendor. Whilst the bill was running, the vendee sold a part, which, by his direction, was delivered by the vemlor to the sub-vendee, whom the vendor charged with warehouse rent for the part, which he paid. Subsequentl}^ 'he vendee became bankru]>t, and the bill was dishonoured. Held that the assignee of the bankrupt vendee could not without paying the price maintain trover against the vendor for the residue of the goods which had re- mained in his hands." In the argument in that case it was contended that the vendor held in two capacities, one as warehouseman and the other as vendor. Sir Wm. Follett, in arguing the case, said: " It can surely make no ditference whether the receipt of rent, and the other acts shewing a dr'ivery, are done by a third person, for whethei- the vendor unites in himself the character of vendor and warehouseman ; the acts done by him as a warehouseman must have the same effect on his rights as vendor as if those acts wore done bj' a third person being a warehouseman, and not the vendor." In answer to that remark Mr. Justice Bayley says, : " The goods re- mained in the possession and control of the vendor. When the goods are in the hands of a third person, such third person becomes by the delivery order the agent of the vendee, instead of the vendor, and it may then well be said that the warehouse is the warehouse of the vendee, as between him and the vendor. I do not think that tho payment of warehouse rent has the effect of a constructive delivery 46 722 SALE Ik W RI»IIT OF rWPAin VEWDOH. of the whole in a ciiho where the gooclH rcmiiined in the ])OHHOHHion of the vendor." In thin ciiho the goodn, whilut in the wiirehouHO, tliough rent wan jiuyaljU) for them, remained in the posHeHtsion of the appelhiiitH ; and tiieir Lordnhips are of opinion that aH the goods remained in the poNHesnion of the vendorH, and no actual delivery had been made to the v»urchaMcrH, the vendors' lien revived upon the inHolvency of the vendeeH. » RIGHT OF TKarAXT. Barniiakt v. Greensiiielus. ' 2(J. Where a t(»naut is in posse.iisioii oi" laud, a piirchawer is bound by all the equities whii-h the tenant could enforce against the vendor, and the equity of the tenant extends not only to intert»sts connected with his tenancy, but also to interest under collateral agretnuents. 27. And the possession of the tenant is a sufficient notice that he has some interest in the land. 2H. A purchaser having notice of that fact, i.s bound, according to the ordinary nile, either to inquire what that interest is, or to give etl'eit to it, whatever it may be. Taylor V. S/ihberl 2 Ves. Jim. 437 ; Daniels v. Davison, 16 Vex. 249 ; Alien V. Anthony, 1 Wer. 232; Taylor \. SI ibbert 2 Ves Jun. 437 ; Crafton v. Ormsby 2 Hch. tV Lef. 583 ; Jones v. Smith, Hare, GO ; Sailey v. Richardson, 9 Hare, 734. RICIIIT TO RESCIND. WOOLCOTT V. PeOOIE ' 29. In an action by purchasers for specific performance of a contract for the sale of some real property, which contained a proviso to the etfect that the vendor might annul the sale on his being unAvilliug or unable to remove any objection to title, it appeared that the purchasers conditionally otfered to give time for the removal of thoir objection and that the vendor in good faith objected 1 the conditions, and was threatened with litigation in consetjuence. Under th<'se cir- curastances,it was held that the vendor was entitled to rescind. STOFPAftE IN TKANNITV. CowAsjEE v. Thompson ' 80. Goods were contracted to be sold and delivered " free on board." They were duly delivered on board, and re- ceipts taken from the master. The purchaser paid for the goods by a bill drawn on him by the seller and duly 1. Upper Canada, 1853 Dec. 5, X Moore 18. 2 Victoria, 1889 Nov. 14, L. R. XV Appeal Cases 43- 3 Bombay, 1845 June 21, V Moore 165. SALE 723 iHHDHHlOn 'cnt waH iitH ; and I in tlui mado t^) ly of tho BI.DS. irohaser I'll force I'xtends t alKoto it notice bound, hat that TnyloT 'es. 249; Ves Jun. . Smith, 'EddlE ' tnance of ontained I the sale ;)bje('tiou y ottered that the and was thtse cir- rescind. >MPSON ' red " free i, and re- d for the and duly MTOPPAMK l>r TK.IKNITI'. accepted by the purchaser. This latter having bt'(U)me insolvent before the bill became duo, the seller Htopi)ed them in transitu. The Judicial Committee held, that trover would not lie for the goods, for that ou their delivery on board the vessel, they were no longer in transitu, so as to be stopped by the seller ; and that the fact that the seller had retained the receipts of the master was immaterial, as after his election' to be paid by a bill, the receipt of the master was not essen- tial to the transaction between the seller and purchaser. HlTCllINdS V. Xl .MKS ' 31. A merchant residing at Jamaica ordered goods from Baltimore on 2Hth March. Ou the next day, 2!)th March, finding his insolvency imminent, he wrote to his vendor inforniinu' him of the state of his att'airs and otl'ering him to rescind the contract. On 81st March, he was declared insolvent. On Itith April the vendor received the letter and sent a power of attorney to his agent at Jamaica to stop the goods. On the cargo arriving on 21st April, tln' agent who had been informed of the facts by the insolvent took i)os- sessiou of the cargo. The otficial assignee of the insolvent then demanded it on behalf of the estate. On (Jth May the agent received his power of attorney. In the action by the olhcial assignee against the agent for the cargo, the Judicial Committee held, that the unpaid vendor, could on 21st April have stopped tht^ cargo in tnui- .s7/w,and his agent had effectually done so in his name ; and that the letter from him to his agent sent on Kith April, though not received till 6th May, was a sufficient authority to establish the agency. RoDuEu v. The Comptoie u'Escompte de Paris ' 32. A iirm sold goods to a merchant at Hon<»- Kong, on ten months' credit to be shii)ped to that place. Before the goods reached their destination, the purchaser being insolvent, assigned to a bank, in consider:! tiou of a debt anterior to the contract with the vendors, all their estate, goods, bills of lading, etc. Held, that the pre-existing debt was not a valuable cousi- d(;ration for the assignment, so as to defeat the right of the iinpaid vendors to stop the goods in transitu ; and, that the transitus had lot ended before the arrival of the goods at 1 Jamaica, 18G3 Oct. 10, IX Law Times N. S. 12S. 2 Hong Kong, 1869 Feb. 5, V Moore, N. S. 538. 724 SALE NTOPPAOE I\' TKANSITl'. Hong Kong, as the t ransit us contmned while the goods were iu charge of a third party, i^ontracted with as carrier for the purpose of forwarding them. Sir .losEPH Xapieh, p. 554 ; — The jjenoral rule is, that where goods are sold to lie scut tf) a ]iartieuliir destination named liy the vendee, the right of the unpaid vendor to stop them continues until thej' arrive and are deliveri-d there according to the bills of lading. I'F.ASK v. (rLOAIIKC ' 33. The vendor of goods sent with them to his agent, a hill of lading made to order and assigns. The agent indorsed the same, and took the acceptance of the purchaser to hold as security till the vessel arrived. The purchaser then got hack by fraud the bill of lading from the agent and indorsed the same to the appellant I'or value. The vendor being in- I'ormed of that fact stopped the goods in transitu. The Judicial Committee held that as the purchaser had trans- i'errcd the bill of lading for value to an innocent purchaser, the right of the vendor to stop the goods was gone ; that it made no dilierence that the purchaser had got back the bill of lading from the agent by fraud. Lord CiiELMSFORn, j). T : — A bill of lading for the deliver}' of goods to order and assigns is a negotiable instrument, which by indorsement and delivery passes the ]ir(ipertyin the goods to the indorsee subject only to the right of an unjjaid vendo;- to stop them in transitu. The indorsee may deprive the vendor of this right by indorsing the l)ill of lading for valuable consideration, although the goods are not ])aiil for, or bills have been given for the price of them which arc certain to be dishonoured, provided the indorsee for value has acted bona fide, and without notice. Although a bill of lading is a negotiable instru- ment, it is so only as a symljol of the goods named in it, and as was said by Lonl Cam])bell in Gm-rci/ v. liehrcnd, 3 Q. B. ()3-i : '" Althougli tiie shipjK'r may have indorsed in blank a bill ot lading deliverable to his assignees, iiis right is not aifected ]>y an apjiropriation of it without his authority and if it he .tolen from him or transferi'ed without his authority a subsequent bona fide transferee for value cainict make title under it as against the shipper of goods." This dictum is very carefully conlincd in its terms to the original transfer of a bill of lading deliverable to the assigns of the shi]iper. In the cases which it supposes there could be no lawful assigns of the shijjper, and consequently the liill of lading could have no existence as a negotiaiile instrument. But in the )ireseiit case. theslii])pers of the goy the respon- dent, but his case is that S. having, after the indorsement and delivery of the bill of lading, returned it to Sterieker to retain as a security for the payment of tlie bill of e.Kchango aecepted for the l)rici- of the goods, and having afterwards obtained it from him by u misrepresentation, they had no power to ])ass a title in it to Pease & Co., at least without being subject to the lien created by the deposit with Sterieker, and consequently that the right to sto]) in transitu against P., through bona fide indorsees for valuable consideration, still subsisted. There can be no doubt that although the vendors had ])arted with the projiert}' in the bill of lading by the indorsement to S., they acquired a title to hokl it by the terms of the agreement under which it was deposited with Sterieker. These terms do not include any stipidation that the vendors should not so deal with the bill of hilling as woidd in the event ot their insolvency defeat the right to slop in transitu. It is not even stipulated that the vendors should hold the hill of lading till the sub-vendees should give tiieni a bill of exchange or other security for payment. The bill t)f lading was not made subject to an}^ new condition (U- limitation, but was merely deposited with the vendors till the arrival of the sliip or the sale of the goods. S. had ])ower to sell, not by reason of any authority arising out of the agreement, but Ijy virtue of their ownership in the goods. The power to sell of course includetl a ])owcr to j)ledge. The vendors by keeping the bill of lading in their hands might have prevented S. from dealing with it. The}^ chose to deliver it back to them, induced to do so indeed by the fraudident representation of S., but still consenting to their possession of it. The indorsees acquired no new title from the vendors l)ythe fraud of S., but merely obtained their own property and iho means of cttectually disposing of it. The vendors had not, strictly speaking, a lien, which means a right to retain property against the wdl of the owner of it, and which is lost when the possession is parted with. Tliey had, by the agre ■iient of the indorsees and owners, a riglit to hold the bill of luding as a security. As in the ease of lien so in this case, as long as the bill ol' lading remained with the parties who had fraudulently obtained it, the vendors who had b"en cheated out of the jxissession migh' have re' 'aimed and recovered it. Hut the moment it passed into the hands of Pease & Co., to w'lom it was pledged and indorsed ibr valuable' consideration withou*, notice, the right of the vendors to follow it was taken away. Viue Dyer v. Peart-on 3 B. li.- Cr. 42 ; Kingsford v. Merry. 11 H.x. oT7. Lyons v. IIoff.mno ' 34. ^Vht!re the goods, at the timo of tho sale, are intended by the piireha.ser to pass direct i'roni the possession of the vendors into that of a carrier, to be earned to a destination 1 New Suiilli W.ile.-, 1800 July 1"), L. R. -XV Xy\ko.\ CnsesaOl. ii Wi SALE STOVFAOK Wr TRANNITir. iudicated by the buyer, iu case of the insolvency of the latter, the goods, whether delivered or not to the carrier, are hi tra/isifu and may be stopped by the vendor. Lord Herschet.l, p. SOli : — The test laid down by Lord Klleii- boroiiffli in the case of Dixon ef al v. Baldwin et aP ap])cars clearly to covci- such a case as this. Alludino- to the oa.se oi Hunter v. Beal^' in which it was said that " the goods must come to the corporal touch of the vendees, \i\ order to oust the right of stopping in transitu," Lord EUenborough says that this was "a fijuratice expression, rarely, if ever strictly true. If it be ])redicated of the vendoi^'s own actual touch, or of the touch of any other person, it comes in each ir stance to a question whether the party to whose touch it actuall}- comes to be an agent so far representing the principal as to raaUe a delivery to him a full, effectual and final delivery to the princi]ial, as contradistinguished from a delivery to a person virtually acting as a carrier or means of conveyance to as on the account of the prin- cipal in a mere course of transit towards him The law appears to their Lordships to lie very clearly and accur- ately laid down by the Master of the roll in the case of Bethel \. Olark." He says : " When the goods have not been delivered io the purchaser or to any agent of his to hold for him otherwise than as a carrier, but are still in the han Supreme court either for a title to the land purchased, or to be re- funded his money, which were dismissed leaving him with his only recourse to the sovereign, restitutio integra with committimus. The Judicial Committee rendering substantial justice, annulled the execution sale and directed that the money paid into court should return to appellant, compensating the rents and ])rolitK received by the apjiellaut while in possession, by loss of interest on money deposited in court. 1. 5 East, 175. 2. Citeil ill £llis V. Iliiiil, 3 r. P. 4117. 3 20 Q. H. D. 015, 4 lirilisli Guiana, 18,')4 .Vov. 28, IX iMoo;e3;i6, SALE 727 of the ■rior, are cl Ellen- 's cloiirly V. £fcVj/> val toiK'h transitu," :preMil\all immediatly paww the ])roporty, it is necesisiny lliat the thiiiu; Hold tshoald be certain, should be atscertained in the first instance, and that there should be a price, eitlier ascertained or ascertainable. But the parties may buy or sell a given thing, nothing remaiiii?ig to bo done tor ascertaining the specific thing itself, but the price to be afterwards ascertained in the manner fixed by the contract of sale, or upon a quantum valeat ; or, they may agree tiuit the sale shall be complete, and the property pass in the specific tiling, chattels or other goods, although the delivery of possession is postjioned, and although something shall remain to be done by the seller before the delivery; or they may agree, that nothing remains to be done for ascertaining the thing sold ; yet, that tlie sale shall not lie com- plete, and the property shall not pass, before something is done to ascertain the amount of the price. The question must always be, what was the intention of the parties in this respect ; and that is, of course, to be collected from the terms of the contract. If those terms do not show an intention of immediately passing the pi'oporty until something is done bj^ the seller, before delivery of possession, then the sale cannot be deemed perfected, !ii a contract for an equivalent in money or some other vahiable commodity, and not for the return of Ids identical subject muttei- in its original or an aliered form, this is a transfei- of pro])erty for value, it is a sale, and not a bailment. (Kent'a Commentaries Vol. II J^ 58, i». "SI (lltii Kd.) eited.) 1 rpper (.'auiui.i. 18")8 \'v\i. 26, XI Moore 551. 2 Australia, 1809 Dec. U, VI .Muoio X. S. 341. PPLE ' sale of y vests uless it parties. I oil his hair of >roperty ight to uglaiid pect, or Cauada. !DEr,L '' i with a exit con- was by purpose, time, au lit refer- takeii, or iitity, on general m.saotion kvas not a m in res- re as for . was not he coudi- (^ommis- id bv the iplies that ^eiy of tlie act for au md 11(1 1 for nn allered le. and not (llth Hd.) SALE 731 WHEN THE ('OIVTHACT IS PERFECT. " Moreover, it appears to their Lordsliips, that there is no sound distinction, in principle, between tliiHand the case of money deposit- ed with a banker on a deposit receipt. It may have been deposited in negotiable paper, in bank-notes, or in sovereigns, but it is paid in upon the known course and conditions of the banker's dealings. A man is supposed to intend the natural consequence of his acts. He knows the course of dealing ; he hands in the monej' ; he gets a deposit receipt ; he knows that the monej^ is taken by the banker to be dealt with as part of his current capital, to be used as his own for his own purposes. Ey the deposit, it is placed in the disposing power of the banker ; and surely he who has acquired the disposing power over property for his own benefit, without the control of another, has the beneficial ownership. Folei/ v. IL'll, 2 II. L. C. 28 cited, also Parker v. Marchant, 2 Phillip, 360. CrsiiiNii V. DuiMV ' 47. The price must be fixed and determined in a sale : this is cue of its essential incidents. IIUTTON V. LiPPERT '■' 48. A contrat;t was made whereby the respondent gua- ranteed to one Ekstein to effect the sale of au estate for the sum of i;9,000, within a certain date, the respondent to have the sole control and management of the property, with an irrevocable power of attorney, granting him the fullest power over the said property, so as to enable him to deal with it as he thought lit, and the respondent guaranteed the payment of the said i;9,000 with interest from a certain date It was also agreed that if the property were sold over je9,000, the respondent -would keep the difference, and if it were not sold within the specified time to respondent the latter should be bound to take over the property at £'3 000. The Judicial Committee const rued this deed as being a sale ; the effect of it being to give Eksteni every right which \ vendor could legally claim, and to . oufer upon the res{>oniliuu every right which a pur("haser could le<>'ally demand. It wakes no difference that tiie parties have called the transaction a "guarantee." SALVAGE Dt'TIEM OF THE NAI.VOK. vSUERSUY V. lIlBBERT. ThE " DuKE OF MaNCHESTEU ^ 49. A sailinii' vessel was rt scned by a steam tug, which, after rendering her salvage services, towed the vessel to a 1 guelioc, 1«80 April l■^, L. R. V. Appoal Cases 409. 2 Cape of Good Hope. 1883 Mnrcli 14, I- R. VIII Appeal Cises :!09. 3 Adminilty, 1847 July 1, VI Mooie 9o, * 1 732 SALVAGK niITIK« or THK NAI.VOR. port, but ill consequeuce of the miscouduct and the nogli- geuce of the master of the steam-tug and her crew, the vessel was run ashore. It was held that the steam-tug had no claim for salvage, as the master of the steam-tug was not released from all responsibility respecting the direction of the vessel towed, by reason of a licensed pilot being on board, and that it was the joint duty of the pilot and the master of the tug to do their utmost i'or the safety of the ship. 50. And the master of the steam-tug could not separate the towing of the A^essel, from his claim for salvage services for getting her off the sands, as it was one transaction of salvage:. LoRii Camphell p. 0!) : — Thorcf'oro, liowcvcr inucli the liconscd pilot may misconduct himsolf, if the master (jf the tug, through grosM negligence, omitN to do what was in his power to keep the ship in a proper tlirection, that she may reach a jiiace of safety, and thereby the ship is lost, or is led into peril as great as that from which she has been rescued, all claim to salvage is forfeited. This is not a claim for ordinary work and lal)our, but for salvage. The very notion of saving a ship, supposes that the sailor instead of merely executing onlers, shall perfbrm some extraordiniiry service, and exert himself to the utmost for the safety of life and properly. UEN OS i;argo for naltaoe nervickn. (Jleary v. McAndkew. The caroo ex " Galam " ' 51. The master of a vessel, who carries to its destination the cargo abandoned by a former ship, and who is still in possession of the ca.-go, has a lien on the cargo, either for freight or for salvage services preferable to a holder of a respondentia bond taken up by the first ship to render the ship seaworthy, the subsequent carrying on of the cargo having been essential to make it available for the holder of the bond, or for anybody else. Lord Kinosdown, p. 234 :— Tlie subsequent carrying on of the cargo was essential to making it available either for the holder of the Respondentia JJond, or for anybody else. It was in the nature of salvage service, and in a comjietition of lien the ship owner who has rendered a service of this description is entitled to priority over the holder of a Iles2)ondentia Bond who has done nothing, and whose money has contributed nothing towards forwarding the cargo to its destination. It is upon this sound principle of justice and common sense that, by the practice of the Admiralty Court, a prior Bottomry Bond is poscponed to a subsecpient one, and both are to claim for salvage after- i 1 Admiralty, ISbii July 27, II Mooic N. S. 21G. iiogli- ew, the ialvago, Tom all towed, that it B tug to separate so rv ices ictiou of licensed til rough keep the ifety, and that from ed. This igo. The instead of y service, properly. LI, AM ■' ■ stiuatiou is still ill either for Ider of a ;uder the the eargo holder of on of the ) holder of the nature Dwner who iority over and whose 'ariro to its sense that, ry Bond is Ivage after- SALVAGE i:m Vir.fi 4»W (1AROO FOR NAI,VA.>' <'AROO FOB NALVA«E HKRVICEN. to 1)0 all that they have decided — not that when a poHsossory right of lien arisen incitlentally liefore tiic t.'ourt of Admiralty, nuch right will he treated an a nullity ; but that when the court is called upon to enforce Hueh a lion not depending upon posHOSsion, or to adjust the rights which grow out of it, the c mrt will refuse to interfere. The authorities cited by their Lonlships are " La Constancia," 2 IF. Jiob., 487 ; The " Mrth Star," Liish. Adm. Rep. 35(i. 1*. 240. it was said, however, that the respondentia bondholder was entitled to preference, because the holder of such security is not liable to contribute to general average. That is so as between the owner of the cargo and the bolder of the bond, but not as between the holdci' of the bond and those whose lien arises in respect of services by which the cargo itself has been made available. PAKTIEftt MABLE TO PAY SAI.VAUE SEBVK^KS. Bligii v. SiMi'soN. The " Fusilier " ' 52. The owners of cargo aio liable to contribute to that portion of the claim of the salvors which arises from saving the lives of passengers, although the salvors may have rendered no direct benefit to the cargo, as the benefit to property is not the only element of remiineration for salvage. Loud Chelmsford, p. 73 : — The general rule as to the parties liable to pay salvage is, that the j)roperty actually benefitted is alone chargeable with the salvage recovered. But this rule is inap- plicable in the case of life salvage, because it is difficult to imagine a case where the saving of the lives, cither of the crew or of the pas- sengers of aves.sel in distress, would be of any benefit, either to the vessel or to the cargo. The Legislature, therefore, could not havi' intended that the benefit to property should be the criterion of the liability to the payment of life salvage. All that seems to have been contemplated is, that there should be included in the entire sum pa\'able for salvage of shij) and cargo, a distinct reward for the preservation of human life. aiTANTUn OF SAI.VAOE. The "Thetis" ' 53. In a case of salvage of a treasure, by great exertions, from a wreck derelict and sunk under water, one third of the amount saved was awarded to the salvors, 54. An admiral who had taken upon himself personal exertion and responsibility in recovering such treasure by means of the ships under his command, was given an eighth of the sum awarded for salvage. 55. The Admiralty was held to be entitled to repayment 1 Admiialty, 186J Feb. 9, III .Mooie N. S 1. 2 England, 1834 June 20, II Knapp 390. SALVAGE 786 uch services. It was not quite correctly said in argument at the Ear, that what is the tirst tiling to be regarded, and the next the services whicii are rendered. It would have licen more accurate to have reversed the order of these considerations, and to have said that the tirst tiling to be regarded is the vahie of the services with reference to the amount of property rescued from peril ; and the next, iiow far the merit of these services is enhanced bj- the risk to litis or property which has been involved in them. Taking the grounds of 1 V. A. Baliamiis, 18.18 June 24, Xtl .Moore 189. 2 Admiraliy, 18G3 -luly 30, II Moore X. S. 243. 3 Admiralty, 1865 Feb. 9, 111 Moore N. S. 51. ! %. & ^>. .o.^. \V IMAGE EVALUATION TEST TARGET (MT-3) ,V ^.< ^ |$> 1.0 I.I 11.25 If i^ IIM •^ 1^ 1 2.2 It I^ 12.0 1.8 14 IIIIII.6 V] ^^^^ / ^ vV^ 7 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ .6> h 736 SALVAGE <|IJAWTaJM or NA1.VAGG. claim to i^nlvngo in this order, it is obvious that it never can be an argument against the amount awartled to the salvors, that it exceeds the value oftheir property put in peril by the service. KiRBY v. The owners of the "Scinuia " ' 01. lu a case where the vessel beiug derelict, and her value, with the cargo c . board, exceeding i;30,000, was salved by two vessels, one of which, with her cargo on board, was worth jEISO.OOO, and the other above ^£3,000, and a tender of i;2,000 for salvage services had been refused, which sum was awarded by the Vice-Admiralty court : the Judicial Committee, looking at the respective values, and taking into consideration the additional risk to the salvors from having to make a deviation in their course, held that sum insuiticient, and increased the amount of salvage by jEI.OOO. 62. The question how far a deviation in a vessel's course iu the performance of salvage services to life or property, may cause the avoidance of a policy of insurance is not satis- factorily settled, though the risk of such may operate on the judge's mind iu determining the amount to be awarded for salvage services. Papayanni v. ITocQUARD. The "True Blue" • 63. A derelict vessel and cargo of the value of i!l,452 was salved by a steamer, which, with her cargo was of the value of i;30,000, and the court below awarded <£300 for salvage. The Judicial Committee held that, under the cir- cumstances, that sum was not sufficient, and it was increased to i;450. Dr. Lushinoton, p. 101: — It is perfectly true, as it has been argued on behalf of the respondents in these two cases', that this court is always very reluctant to review civses of salvage, either comini; from the Court of Admiralty or from the Vice-Admiralty Courts, on the sole ground of tlie pecuniary reward which has been bestowed in those courts being deemeer to estimate a salvage reward upon a more enlarged and liberal scale. The ingredients of a salvage service are, first, enterprise in the r^alvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellow-creatures, and to rescue the property of their fellow subjects; secondly, the degree of danger and distress from which the property is rescued, whether 't were in imminent peril or almost certainly lost, nothing out of it rescued and preserved; thirdly, the degree of labour and skill which 1 v. A. Sniiit Helena, 1807 Fel). '27, IV Mooie N. S. 374. i Adminilty, 1871 Feb. 8, VlII Moore N. S. 2'2. 47 .' * 738 SALVAGE 4ll7AN'rVM or SALVAOE. t lie mil vorH incur and diMplay, and the time oucupied. LuHtly, the value. Where all thuHO eireuniHtancen concur, u large and liberal reward ought to bo given." But he goes on, but whore none or hardly any, then the thing ought to bo yro opere et labore. " The Amekiquk" ' 66. Although the quuntiim of rerauneratiou to salvors is to some exteut to be aiiected by the value of the property halved, it must not be raised to au amount altogether out of proportion to the services actually rendered. When the court below had awarded an exceptional and excessive amount of remuneration solely from regard to the value of the property salved, the Privy Council, notwithstanding its general rule of non-interference upon a question of mere discretion reduced the said amount by two-fifths. Bird v. Gibb. The " Dk Bay " ' 67. Where the property saved is ample, losses voluntarily ini'urred by the salvor should be transferred to the owner of the property saved, and in addition the salvor should re- ceive a compensation for his exertions and for the risk he runs of not receiving any compensation in the event of his (services proving iiietioi'tual. 68. Tht' losses should bf ascertained with precision Avhero l)racticable, but in that case the salvage remuneration added tliereto should be fixed on a more moderate scale than where the losses cannot be Hxed with precision : property saved, i;67,<»00 ; salvage awarded, i;6,000. Owners of the " Thomas Ai.len v. Gow ' 69. In this cause the salvage remuneration was redu«;ed from $12,000 to $7,500; their Lordships being of opinion that the ditfereiite between the sum awarded and that which would be liberal was so large as to require correction. Ihe Glendiiror, L. R. 3 P. C. 589 ; Tfie Carrier Done, 2 Moo. P. C. N. S. 254 ; The Ctarisse, Swatiei/ 184 ; The Scindia, L. R. 1 P. a 241, (in which it was held that : •' Unless the dif- ference amounted at least at one third, the Committee would not interfere") were approv»'d and followed. See Evidence: appreciation of : Samx. Brown, Oreeney.Baitei/, The " Neptune;' The " Clarisse," Tlie " Chetah." 1 Admiralty, 1H74 Dec. 19, L. R. VI P. C. 4fi8. 2 V. A. Malta, 1833 June 30, L. R. VIII Appeal Cnses 6M. 3 Admiralty, 1886 Dec. 11, L. R. XII Appeal Cases 118. SALVAGE 739 ttstly, the ltd liberal ) none or iquk' ' ors is to property er out of heu the ixcessive value of idiug its of mere Bay • ' luutarily le owner liould re- e risk he lit of his )U Avherc on added jale than property V. Gow ' i redu«;ed nion that lat Avhich tion. te, 2 Moo. idia, L. R. 8 the dii- ,ee would ! V. BaUei/, WHBN ('OMPI.F.TED. (N)i.HV V. Watson. The " Kndeavim h " ' 70. lu an action for salvag,. services iu gettinj^ a vessel off the Newcombe Sand, it appeared, that in order to get the vessel off the sand, both her bower anchors and chains were slipped, and that the salvors, after getting her off, called iu the aid of another boat to recovt^r the anchors. The master of the ship which brought assistance claimed part of the salvage service. Held, that the general salvage was com- pleted, when the vessel was ofi" the sand, and that the getting up of the anchors formed no ingredient in the salvage services so as to entitle those who recovered tht» anchors to share iu the general salvage of the ship and cargo. WIIKN nvK. IIaLSEY v. Al.BERTlZEN. THE " JoNOE AnHRIES " " 71. A foreign vessel being in danger, in consequence of the boisterous state of the weather, and being leaky, hir-d an English fishing smack, by a written agreement, "1o pilot and to sail ahead for iJoO." After four days of hard v> oikina: and many dilHculties the captain of the smack got the vessel into port. The owners of the smack refused the tender of £110, and brought an action for salvage services rendered to the vessel. The t-ourt of Admiralty was of opinion that the agret'meut being to perform a stM-vicefor a specific sum was not to be set aside, because the weather became tiinpes- torous, and held, that salvage was barred by the agreement, as nothing was done to convt'rt pilotage into a salvage service, and that the sum specified iu the agreement Avas n sufficient compensation. This judgment Avas confirmed on appeal by the Judicial Committee. 72. The court Avill not favour a claim for salvage by a party originally engaged as a pilot ; but at the same time pilots are not to be compensated by mere pilotage remunera- tion when salvage S'-'rvlces have been rendered. Ward v. McCorkill. '• The Mi.nnehaha ' 73. The " Minne/inlia'' loaded Avith a A'-aluable cargo ol cotton, on entering the mouth of a river brought up at anchor, being unable to continue her A'oyagt- to Liverpool by reason oi the tide, which was ebbing, and the wind which was very strong. She then made an agreement Avitli the '' United Kingdom'' to toAV her to Liverpool, for thirty 1 AdminUty, 1848 l''eb. iS, VI .Mo.ire 334 2 Admiialty, IH57 Dec. 15, XI .Moore 3)3. 3 Admiralty, 1861 July II, XV Moore 133. J.i If \m T40 SALVAGE WIIRN nvE. •ruiiii'us. The hawser was made last, aud the " Minnehnhd " w '8 towed up to her anchor, which was hove up, but soou afterwards the hawser broke aud the ship drifted. The " S/oriii King" and the *' Enterprise" joined the other and the three boats towed the ship to Liverpool. Chiimi' for salvage were made by the three boats, and allowt'dby the Judicial Committee,whieh reversing th-'Judg- ment below, held : that a contract by a steam tug for towage may, from the danger in which the towed vessel is after- wards placed, and rescued by the tug, be superseded and converted into salvage service. But, in such circumstances, the claim to salvage is to be watched by the court with the closest attention and jealousy. 74. That a steam tug rendering salvage services must obey the orders of the pilot on board the vessel. 75. That the claimants to salvage must prove their own case, aud show that, the vessel being iu danger from no fault of theirs, they performed services which Wt-ri' not covi>r('d by the towage contract, aud did all they could to prevent the danger. 76. That negligence, though not specifically plead<>d iu the answer, may be proved to negative a claim to salvage upon a simple traverse c ^ "'•Ivage services ; but if the defen- dants mean to charge the claimants with purposely having brought the ship iu danger, such defence must be speci- fically pleaded in answer. LtiRD KiNOSUowN, p. 152: — When a .steamboat engages to tow a vessel for a certain remuneration from one point to another, she (loe.>* not warrant that .^he will lie able to do so and will rlo so under all cirt'umstances ami at all hazards; but she does engagi- that sho will Use her best emleavours for that purpose, and will bring to the task eompetent skill, and such a crew, tackle, and equipments as are reasonably to be expected in a vessel of her class. She may bo prevented from fultilliiig her ct)ntract by vis major, by accidents which were not contemplated and which may render the fulfilment of her contract impossiole; and in such case, by the general rule of law, she is relieved from her obligations. liut she does not become relieved from her obligations because unforeseen difficulties occur m the completion of her task ; because the performance of tlie task is interrupted, or cannot be completeil in the mode in which it was originally intended, as by the breaking of the ship's hauscr. But if in the discharge of this task, by sudden violence of wind or waves, or other accidents, the ship in fowls j)laced in danger and the towing vessel incurs risks and perlurms duties which were not within the scope of her original engagement, she is entitled to additional remuneration for additional services if the ship be saved, and may claim as a salvor, instead of being res- '[^m nehnha " )XXt HOOU d. The htT aud »ats, aud th'-judg- towagt^ is at'ter- idod and istanoos, with the !es must leir owu from no viTi> not could to leaded iu o salvage he di^t'eu- y haviug bo speci- 3S to tow U iiothor, she lo so iimloi" o tliiil nIio rini;- lo the ipnioiits as ' CLS major. may render ase, l)y the )ns beciiuso ^k ; l)eeiiiis;e 3 completed >e l)reiikiiig , by Huddeii ) in tow is id perl'orms iigai!;eiiioiit, serviee< if :' being res- SALVAGE T41 WIIKM DI7E. tricted to the sum stipulated to be paid for mere towage. Wheflior tliis larger remuneration is to be considered in addition to, or in fubstiliition for the price of towage, is of little consecjueneo prac- tically. The measure of the sum to be allowed as salvage would, of course, be increased or diminished according as the jirice of towage was or was not included in it. In the cases on this subject, the towage contract is generally sj)oken of as super.seded by tlie right to salvage. It is not disputed that these are the rules which are acted upon in the Court of Admiralty, and they appear to their Lordships to bo t'ountled on reason and on public policy, au< I to be not incon.sistent with legal principles. The lug is relieved from the performance of lie r contract by the impossibility of performing it, but if the performance of it be pos- u'ble, bill ui the course of it the ship in her charge is exposetl, by >;.uivoi lable accident, to dangers which require from the tug ser- vices of a dirt'eront class and bearing a higher rate of payment, it is htid to be implied iu the contract that she shall be paid at such liigher rate. To bold, on the one hand, that a tug, having contracted to tow, is bound, whatever happens after the contract, though not in the con- templaiion of the parties, and at ah hazards to herself, to take the ship to her destination ; or, on the other, that the moment the per- formance of the contract is interrupted, or its completion in the mode nriginally intended becomes impossible, the tug is relieved from all further duty, and at liberty to abandon the ship in her charge to her fate, would be alike inconsistent with the public interests. The rule as it is established guards against both inconveniences, and ])rovides at the same time lor the safety of the ship and the just remuniTation of the tug. The rule has been long settled, parties enter into towage contracts on the faith of it ; and we should be ex- tremely sorry that anj' doubt should be supposed to exist upon it. It is said that it has never been brought before us for decision. It so, considering howotten the rule has been acted upon, the almost necessary inference is that it has never been made the subject of appeal, becaase it has been universally acquiesced in. Whciher the circumstances in each particular case are sufficient to turn towage into salvage must often be a subject of great doubt, as it is in the present case; but there is one point upon which their Lordships can entertain no doubt, and upon whicli they are sur- prised I hat any doubt should have been thrown at the Bar. If the danger from which the ship has been rescued is attributable to the fault of the tug; if the lug, whetbor by wilful misconduct, or by negligence, or by the want of that reasonable skill or equipments whicii are implied in the towage contract, has occasioned or material- ly com rilmted to the danger, we can have no hesitation instating our opinion that she can have no claim to salvage. She never can be permitted to profit by her own wrong or default. When it is remembered how much in all cas'js — how entirely in many cases — a ship in tow is at the mercy of the tug ; how easily. 742 SALVAGK WHEN Drr.. with tlie knowledge which the crews of euch boats UHually have of the waters on which they ply, thej- may place a ship in their charge in great real or apparent peril ; how diiBcult of detection such a ellantr< ujipeared to admit tiiat it'a man rinked his lite, that Iteing a tiling lie was not huuiid by his <-ontruct to do, he would ho entitled to reeeive salvage remunera- tion ; hut their Lordsiii]iH do not see on what principle a dislinetion can ho drawn Imtween a case where a seaman risks his lite and a case where he j)erf'orms other extraordinary services which would in their nature Iw salvage services. That would he raising a new distinction, lor which there appears no sufficient ground or authority. The true rule appears to their Lordships to he, to consider whether the services are in themselves of the nature of salvage services ; and next, whether they are services which are within the contract which the seaman orginally enters into, so that he receives renmnerat ion for them by his ordmary wages? Iftheyarenot within his contract, and he , any ])rii(lunt man would h:i.vo uccuptud it. TiUNiiirMi V. The 0\vner8 ok tub hiiip " Tiik Stratiinavek" ' 84. In a suit in which .salvage services were claimed, it was proved that the delendaut's vessel, at the time such services were rendered, was neither in actual nor imminent probable danger. The Judicial Committee held that salvaffe services could not be demanded, but as she was safely towed into port, those services must be regarded as towage. SCHOOL KMDOWRD N<-HI.N ACT. In re Ai-lkyn's (^om.eoe Dri.wion ' 85. The master of a college holding an olHco created and defined by statute has a vested interest in his olHce, and any scheme on the part of the charity Commissioners for his dismissal must save and t;ompensate sxich interests and emoluments. Tn re Shaftoe'h Charity at Haydon Uridoe " 86. Under the Endowed Schools AH , sects. 13 and 39, persons sending their children free of payment to a public school, have no right to appeal against a scheme o])liging them to pay a reasonable charge. SCIRE FACIAS See WuiT OK Prero(UTIve : iisdem verbis. SEIGNIOR COBPORATIOjrS. Thornton v. Robin * 87. The owners of fiefs and lordships in Jersey are en- titled to fines on the death of tenants holding lands under them, and to forfeitures on tenants being convicted of crimes. If any of the lauds are convoyed to any corporation, the lords lose their rights, but compensation must be made to the lords for the loss of the fines and forfeitures, which they would have received on the death or conviction of their former tenants. 1 Vici'-Admiralty, 1875 Dec. 8, L. K. I Appeal Cases CS. 2 England, 1875 June 27, L. R. I AppealOases 68. 3 England, 1878 June 6, XXXVIII Law Times N. S. 793. 4 Jersey, 1837 June 19, I Moore 439. SKHJXIOIJ 747 mWIITM OVKR l'5tSIAVIU«lll.t: IIIVKNN. St. Lolls V, St. Loimh ' 8H. The seigneur in I..ow('r f'unula hivH tht» ripht to the UH*' oluii unimvigahli' riv»«r llowinj? through his liiiul ; luul tho w-seigueur caiuiot divci t for his xihc th<> wiit»»rH, wliii-h have lor I'levcn yciiTN kh^ jjlicd the mills of unothcr ol' hin See Fkud.vl tknuuk, IMikhckiption. SEA COAST PR<»HKHTV or HOCKN OW T' NKST V. I'll'iiN ' 85>. A persoi raunot claim the extilusivc right ou vooks situate below low waiter mark on the sea coast ex«'ept by a grant from the king, or by sxn-h long and undisturbed enjoyment of it as to give him a title by prescription. Ldiii) WvNKORit, p. 67; — Tho rocUn wliuro tlio »cn-\vot)(l jj;ro\v8, wliic'li was till) Huhject of tlio action in tlio court of .Icrsoy, aro covercil witlj tlio orclinnry tides. The sea is the ])ro|)crty of tlio Uinj^, and so is the land lioneath it, except such pari of that land as is capaiile of beiiif^ usofidly occujnwl without prejiidico to navij^ation, and of which a subject has either had a f^rant from the Uiii<;. or has exclufively used for so long a time as to confer on inni a title by prescription. In tho latter case a jiresuinption is raised that tho Kin<^ has either granted hin» an exclusive right to it. or has per- mitted him to have jujssession of it, and to employ his money and labour upon it, .so as to confer ujmn him a title by occupiition, tho foundation of most of tho rights to property in land. This is tho law of Kngland, and the cases referred to prove that it is the law of Jersey This rule of law is derived from a uinvorsal principle of con- vonionco and justice. What never has had an ii.dividual ownur belongs to tho sovereign within whose territory it is situated. Wluitever any sovereign has allowed an individual to j)0Hsess or im- ])rove he cannot take from that individual, hocauso by thus doing ho would take from the occupant tho value of tho lal)our which I.e iiad been ])ermitted to expend on tho pro])erty, and which must fur ex- ceed the original value of the soil. SEPARATION ALLOWANCe TO WIFE. WESTMEATlt v. We.STME.\TII ' 90. In au action for si'paration from bed and board, when the court grants an allowance to the wife, thi? husband is not entitled to have deducted from the amount allowed 1 Lower Canada, 1H41 Feb. 18, III Moore 398. 2 Jersey, 1829 July 9, 1 Kiiapp CO. 3 Canterbury, 1834 Nov. 13, II Knapp. 42. P ,,, V- t ':,'^ >%* 748 ALLOWANCE TO WIFE. SEPARATION whatever she has received by will since the marriage, nor whatever she receives as salary as a Lady-iu-waitiug to the Queen ; but a pension from the crown granted to the wile may be taken into consideration. from hed and board. Sant v. Sant ' 91. The grounds for an action in separation from bed and board under the words in/urue ffravi are left to the discretion of the court. The i'ollowing remarks of their Lordships give a construction of these words. Sir James IIannen, p. 54(i; — Their Lordships consider that, under tlie words " injurke gravi " it was intended to leave a largo discretion to the tribunal having to judge the facts; that not only acts but words designed to wound the feelings of the wife — where, as in this case, she is the comi>laining party — may amount to " injuria; gravi "; that in considering this t^uestion, the positioii of the parlies, the habits and usages of the society in which they live, must be regarded ; that insults offered to the wife, which manifest contempt of her in that character, are of special gravity, and that that gravity is increased if the insult be offered in the presence of others ; that wrongs of this description are not to be estimated separately, but in combination one with another. of pkoperty. Le.mpriere v. Vibert ' 92. By the custom in Jersey, derived from that of Normandy, a widower, who has had a child born alive by his wife, is, whether the child survive its mother or not, entitled after the death of his wife to a life interest in her real property. 93. A separation as to property between husband and wife, volontarily obtained, does not affect the husband's " droit de viduite.'" SERVITUDE iNDiTisiRLE See Prescription : iisdem verbis. REPAIRS OF ROAD. DoRION V. Le SfcMINAIRE I)E St. SlLPICE DE MONTREAL •' 94. By a seigniorial deed executed in 1804, certain laud was granted to Smith, subject to the obligation that part of it was to be used for a road, which the grantee was to make and keep in repair, the grantors being primarily 1 MhIih, 1874 May 10, L. R. V 1'. C. 542. 2 Jprsey, 18G2 .Iiiiie 18, XV Moore 427. 3 Quebec, 1880 Feb. 10, L. R, V App-al Cases 362. SERVITUDE 749 BEPAIRS or HOAD. liable to the muuicipaliuithorities in respect of such repairs. The land was fifty years later sold by the sheriff to the appellant who rei'used to repair the road. The Privy Council decided that such ol)ligatiou created a real servitude within the meaning of art. -tU!* of the Civil Code, and that the sheriffs sale did not discharge this ser- vitude, and that the grant of laud for the purpose of opening a front road, included on the part of the grantee the obliga- tion to make and repair the road. Sir Montaoue E. Smith, p. 302 : — [n considering this question, the provisions of the Civil Code of Canada which define and enume- rate servitudes, are to bo regarded. Article VJ'J of that Code dotines jjenerallj- a servitude: The obligation to repair a road imposed on one estate for the benetit of the owners of another would, primd facie, seem to bo a charge within the terms of this article. No doubt by the old French law founded on the Roman law, and by the law of Canada before the Code, a servitude was understood to be that the owner of the servient tenement was only to suiter, and not to do any act. It is unneees- sary to cite any authorities on that subject, because the old law is clear, and may be taken *r> be correctly stated by Toullier (3d Vol.) in Nos. 377 and 378, which are cited by Mr. Justice Bdlanger in his judgment. Toullier's observations on the maxim : "Sercitutmn non eanaturn est ut Illiquid patiatur aut non fariat." It is admitted by writers on the French Code, which contains a definition and enume- ration of servitudes similar to those found in the Canada Code, that the principle of the old law ha^? been invaded, and that under the code some active servitudes may be imposed upon land. But they qualify of the admission by affirming that only such active servi- tudes as are auxiliary to servitudes in their strict meaning are con- templated by the Code. (C. C, Articles 553-554; Demolombe, Vol. XII, Nos. 871-873). 36!) : — So that one of the servitudes which may be imposed by law is the construction and the repair of roads. Can a servitude of a like nature be created by contract? Their Lordships think it is unnecessary to determine the question in this naked form, because they are of opinion, for the reason above given, that the obligation to make and repair the road formed part of an entire servitude, to allow the use of land for the purpose of a front road (a use in which the owner on the opposite side was interested) and to make and repair the road. TBAMSFbK OF Steele v. Thompson ' !>5. The agreement to sell part of an immoveable, providing that a caual running across the laud should be for the use of both the seller and the buyer, creates a servitude of the 1 lirilish Guiana, 18G0 Feb. 2, XIII Moore 280. 750 SERVITUDE TRANttrER OF character of an immoveable, and which can only be trans- ferred, according to the Roman-Dutch law, before a judge. WATKR-COVRSE. Frechette v. La Cie. MANrPACTiuiEKE de St. Hyacinthe ' 96. The proprietor of a higher land who has constructed works accumulating the waters of the river into a small ]ilace, increasing thereby the depth of the river, and diverting the waters from their natural course, aggra- vates the servitudes upon the lower laud, against the provision of article 501 of the Civil Code. 97. Under these circumstances, the proprietor of the higher land cannot prevent the proprietor of the lower land from constructing a dam for his protection, to the extent of the artificial accumulation of the waters, and cannot demand a free course for thr water sent down by his works. Saunders v. Neivman, 1 B. t^ A. 258 ; Taiiling v. Jones, 11 H. L. a 290. Sni Arthur IIobiiouse, p. 179 : — The appollant's counsel contended strongly at the bar that the working of tlie ]>laintitt's' mill has not been impeded or only impeded to a slight extent, and that the defen- dants have been materially injured by the abstraction of water. But their Lordships did not think it necossary to hear the respondent's counsel on those points. For the rigiit to resist interference with a natui'al flow of water, or a flow legally estaiilished, is independent of the actual user of the water. Xeither would the plaintitt's' right to have the established flow protectotl be barred by the mere fact that the defendants may have been injured by deprivation of water owing to the extension of Dyke No. 1. That might give the defen- dants a right to sue for damages, or to remove the dyke ; but it does not follow that they can interfere with the established flow from the plaintitt's' land. The appellant's counsel also insisted strongly thai the action is wrong in form, but their Lordships see no reason to ditt'er from the two Quebec Courts on this point. The question whether Chapter 51 of the Consolidated Statutes does not conttne the plaintiff's to a single remedy, viz., that of pecu- niary damages, is a more substantial one. There is certainly great difficulty in so construing the Code and the statute as to produce a clear and harmonious result for the whole. There is nothing on the face of the statute itself to limit the generality of the powers ii appears to confer on riparian owners. It was stated at the bar that there had been a course of decision in Canada which had the ett'ect of placing a limit on the general terms of the statute. But the only case cited, that which is stated in the respondent's factum filed 11th May, 1881, appears only to refer to the m(xle of ascertaining dam- 1 Quebec, 1883 Nov. 34, L. R. IX Appeal Cases 170. aggra- SEEVITUDE 751 WATER-COCHSE. ageM. And the JudgcH in the Lower Courts do not refer to iiny course of decision, while they entertain a great diversity of view as to the limits within which the statute is to lie construed. The Supe- rior Court appears to think that the statute is no answer to actions founded on common right and on actual injury'. Mr. Justice Ramsay, while impugning both the motives and the capacity of the framers, thinks it means nothing more than that if anil when damages are sued for they shall be ascertained by referees. The rest of the Court in one passage express an opinion that the statute was not intended to ojjerate against those who had turned running waters to use, and in another, that it was intended to operate only against land owners and not against millowners. It is difficult to find the foundation for any of these limitations. At the same time, their Lordships lind it difficult to suppose that by the saving of the statute contained in Sect. 503, the Code intended to give no remedy whatever beyond pecuniary compensation for any violation of its rules. The question was very ably argued at the bar, but in the result their Lordships do not find it necessary to pronounce any opinion on it. The substantial difficulty in the way of the plaintiffs is this : that they are seeking to establish a new and different servitude / the act of man without either grant or recognition; that they have not alleged or proved what was the precise servitude which existed prior to 1878 ; and that the decree which they have obtained proceeds on the assumption that the existing state of things is the natural state, or at least that there is identity between the state of things lie^ore and after the plaintiffs' operations of 1878. This is the difficulty to which the attention of their counsel was specially called, and to see how it stands it is necessary to examine the proceedings with some particularity. In the declaration filed by the plaintiffs, they set forth their docu- ments of title, and allege that they have had for upwards of ()2 years the rights, privileges and water powers actually used by them. They pray for a declaration of those rights, for a declaration that the defendants have illegally disturbed the enjoyment of them, and for demolition of defendants' barrier. It is clear then that, so far, the plaintiffs make no distinction between the existing flow of water and the established flow. The defendants on their part rely on the alterations of 1878. They say in substance that the mischief is caused by the plaintiffs' own works executed below Mill No. 1 in the preceding spring and sum- mer; that the extension of Dyke No. 1 has caught all the water and carried it down to Mill No. 1 ; thai by collecting so large a quantity of water into the narrow space on the left bank, the plain- tiffs have themselves to blame if at that point the water is more abundant than they like ; and that they have no grant {titre) giving them a right so to use the river. In replying to these defences the plaintiffs do not fall back on their right to the natural or the established flow of the water. As regards their works below Mill No. 1, they say that the defendants' allegations are false in fact. And as to all their recent operations, they say that their only object has been to preserve the water and I M ■(■■ ■I- 1 f^OOi lit' ' i ^1 752 wateim;oijrne. SERVITUDE conduct it from one of their mills to another, a^ they have always done. At the wish of both parties experts were appointed bj* the Court to report upon instructions given to them by the Court. They were to state : — 1. The conditions of the localities and of the erections described in the writings of the parties, both before and after the said erections. 2. The works of the defendants. 8. The nature of those works, and whether they are calculateil to injure the working of the water power used by the plaintitfs before they were completed. 4. What should be done so that each party may use the water without injur\- to the other. 5. What amount of damages, if any, should be paid by the defen- dants to the plaintiffs. These instructions are not pointed to the effect of the plaintiffs' operations, but rather indicate that the only question is whether the flow existing at the time of the defendant's operations has been impeded. In answer to the first and second questions the experts show the construction of the old and new mills to the effect hereinbefore stated, but they say nothing about the extension of Dyke No. 1, nor do they show what was the former flow of the water, or the bed of the river, or in any other respect what was the state of the localities prior to the execution of the recent works of the plaintiffs. In answer to the third question they find that the defendants' new barrier bays back the water to the depth of about two feet at the boundary line, Point A. In answer to the fourth question they find that the defendants ought to lower their barrier 22 inches, so as not to bay back the water at all over Point A. And they award SlOO for damage. The parties then went into evidence, and the cause came on for hearing before Mr. Justice Sicotte, Judge of the Superior Court. That learned Judge gave the plaintifts a decree in precise accordance with the opinion of the exj)erts. The decree is founded on recitals showing that the plaintiffs have been in possession of a real right for a year and a day, using the upper waters and letting them escape over the land of the defendants. Then it states that the Itarrier raised by the defendants has obstructed the waters in their natural course such as it was formerly. It is clear then that the Superior Court paid no attention to the alteration effected by the plaintiffs' works in 1878. The recital of possession for a year and a day is true of the prior state of things, but is not true of the existing state of things. Nor is the present course of the water its natural course, nor such as it was formerly. On appeal to the Queen's Bench, there was a difference of opinion amctng the Judges. Mr. Justice Ramsay states very clearly the point of the defence which is now under discussion. He says, "The " defendants an.swer that they have not stopped the natural flow of " the water, but that plaintift" has, by increasing his own works SERVITUDE ,ve always the Court 'hey were scribed in the said culated to ) phiintitfs the water the defen- plaintitfs' 8 whether I has been show the reinbefore No. 1, nor the bed of e localities ntitfs. In [lants' new feet at the II they find s, so as not iward $100 me on for •ior Court, accordance on recitals al right for lem escape the barrier leir natural tion to the B recital of 3 of things, the present a formerly. e of opinion cleartj- the says, "The ural flow of own works WATF.n-l'OrHNK. " above, directed the waters of the river of their natural course, and " so created an artificial accumulation of water which can only " escape through the tail race." lie thinks this would bo a gocxl defence if it were not for the acquiescence or recognition of the defendants. But there is no evidence of such acquiescence in tiie ])laintitts' works of 1878. The evidence referred to by Mr. Justice Ramsay consists of two acts. First, the construction by the defen- dants of Dyke No. 3, which was long prior to the extension of Dyke No. 1. Secondly, the construction of the works now complained of. But in the first place, though it is true that by their new works the defendants sought to take advantage of the now flow of water, they did so because their former flow was partially cut ofl". And in the second place an act can hardly be treated as acquiescence in favour of a person who has ever since been contending against it. It is at the utmost acquiescence on condition of enjoying the thing acquiesced in, and if that condition is taken away, so is the acquiescence. Having thus disposed of the defence founded on the extension of Dyke No. 1, Mr. Justice Ramsay addresses himself to the question of damage. He thinks that there is no sufficient evidence of damage, and would either dismiss the action or remit it for further report by experts. The ojunion of the rest of the Court was delivered by Mr. Justice Tessier. That learned Judge states the defendants' plea that the plaintiffs themselves have caused the mischief complained of, but ho thinks it completely answered by the report of the experts in answer to the 3rd question. Now that question and answer relate only to the existing flow of water, and have absolutely no bearing on the prior question whether the plaintiffs are entitled to have that flow protected. Mr. Justice Tessier then quotes Art. 501 of the Code, and says that the Company have not added anything to the volume of the water by the hand of man, because they have not introduced any foreign water into the Yamaska. On these grounds the Court decides for the plaintiffs, and dismisses the appeal. It is true, indeed, that the plaintiffs have not increased the whole volume of the Yamaska, but they may have accumulated the waters of that river into a small space, and so have increased their depth at the point where they complain of it, and have augmented the servi- tude they desire to enforce. This is the very thing which the Court of Queen's Bench appear to think would be material if only it had been done by introducing fresh water into the Yamaska, instead of being done by a readjustment of the waters of the Yamaska itself. That it must have been done to some extent seems evident from the plan, and the respondents' counsel so admitted. It results also from the evidence given by Bertrand and by Delisle, showing how the water which used to flow to the right of Dyke No. 1 now flows to the left. The plaintiffs have left the point untouched by evidence. Whether the difference is much or little has not been ascertained. By Sect. 501 of the Code, the proprietor of the higher land can do nothing to aggravate the servitude of the lower land. The plaintiffs have certainly accumulated the volume of the water, and have prob- ably increased its depth in the narrow channel up to the dividing lino. in 1^ 11 im- m 754 WATER*COCIME. SERVITUDE To that extent they are aggravating the servitude of the lower land, and lo that extent at least they have no right to demand, as they do deinand, a free course for the water isent down by them. That the matter is left in this uncertainty is the fault of the plaintiffs who are bound to allege and prove a case entitling them to relief. They come into Court insisting on their right to keep unobstructed the flow of water which they say has existed as it now is for more than CO years. The issue is distinctly raised that the existing flow is not the ancient one ; but they continue to insist hat it is, and refuse to shape their case so as to try the question whether or not they are really entitled to some relief on the ground that the establishecl flow had been interfered with, and to get that amount of relief. It is unsatisfactory to dispose of a case on such grounds, but their Lord- ships cannot see by what right the defendants are to be compelled to keep their dam so low that the whole volume of water, aa accu- mulated and increased by the plaintiffs, shall run away unobstructed. It is not easy to find decisions precisely applicable to such pecu- liar circumstances ; but their Lordships have not been referred to and arc not aware of any case in which the plaintiff has obtained relief in respect of any servitude except that to which he has clearly alleged and proved his right. In Saunders v. Newman, 1 li. & A. 258, the plaintiff had acquired a prescriptive right to an artificial flow of water. All he had done within recent times was to alter the construction of the wheel turned b}' the water. It was held that the defendant, a lower proprietor, hiid no right to obstruct the ancient flow ; but it seems clear from the ob- servations of the Judges that the decision would have been otherwise if the plaintiffs operations had substantially slteroj *he flow of the water. Abbott, J., says, "When a mill ha.s ' : " stream for a long period of time, it gives i<> " the water shall continue to flow to and fion, ;■, '■ in which it has been accustomed to flow ditii i/r " owner is not bound to use the water in the saiTi. " or to apply it to the same mill. If he was, that would stop all " improvements in machinery. If indeed the alterations made from " time to time prejudice the right of the lower mill, the case would '• be different ; but here the alteration is by no means injurious, " for the old wheel drew more water than the new one'" Tapling v. Jones, 11 H. L., 290, was cited as an authority for the plaintiffs ; but so far as it bears upon the point under discussion it favours the argument for the defendants. For the plaintiff in Tapling V. Jones succeeded in getting protection for nothing but his ancient light ; those very rays of light to which he had acquired an indefea- sible right. Lord Wesibury says ; — " In the present case an ancient " window in the jilaintiff's house has been preserved, and remained " unaltered during all the alterations of the holding The " appellants' wall, so far as it obstructed the access of light to the " respondent's ancient unalteredwindow, was an illegal obstruction." And Lord Chelmsford, in answering the argument that the alteration of windows had changed the character of the right so as to destroy it, says, " But it is not easy to comprehend how this effect can be t,!entcd upoii a i.ur a right that vlii'in the manner that time. The precise manner, SEP.VITUDE «55 wcr land, s they do rhiit the i who are il'. They icted the lore than ow is not refuse to they are shed flow ef. It is leir Lord- iompelled , as accu- bstnicted, ch pecu- orred to ^ obtained as clearly jfori acquired had done leel turned rietor, hiUJ oni the ob- otherwise flow of the cd upon a right that the manner time. The se manner, Id stop all made from case would ; injurious, rity for the iscussion it fin Tapling his ancient 1 an indefea- 3 an ancient d remained . . The ight to the bstr notion." le alteration i to destroy tfcct can be WATRR-l'OIJRNE. " produced by acts wholly unconnected with an ancient window " which the owner has carefully retained in its original state." It may be inferred from these judgments that, if the plaintiff in Tap^i"n(/ V. Jones had so mixed up his old lights with his new ones that they could not be distinguished, he would have failed. It m true that in that case the protection given to the ancient light carried with it incidentally protection to the new lights. But the only reason why it did so was that the new lights could not be obstructed without obstruction to the ancient light. New lights are no encroachment, nor did the plaintiff's decree aggravate the defen- dant's servitude, for he was only prevented from building so as U) obstruct the ancient lights. In the case of an augmented flow of water the servitude of the lower proprietor is aggravated. The result is that the plaintiffs have insisted on an enjoyment to which they have shown no legal title, and have not proved or even alleged any case for relief in respect of that enjoyment to which they may have luid a title. Their Lordships have an.xiously consi- dered whether it is possible usefully to remit the case to be tried on the true issues. They are, however, convinced that an attempt to do 80 will not save time or money, and that the litigation must follow the strict course. They will humbly advise Her Majesty to reverse the decrees below and to dismiss the action with costs. The costs of this ajjpeal will foUoAV the result. See Crown lands : eodem verbo. SHERIFF change of place of confinf.nent. Haines v. Kast India Company ' 98. Wheu a creditor who had his debtor imprisoned lor debt, allowed him to go out of prison for a temporary pur- pose, the custody coutiuues, as the sheritf may refuse to let the prisoner go out, unless ordered by a rule of court : thus if, Avithout any rule of court, all parties including the slierilf agree to the debtor leaving the prison, and from a laxity of surveillance of the sherilf 's officers, the debtor escapes, it is a question of fact for the jury, if the judgmtMit creditor brings an action against the sheritf, whether the judgment creditor did not himself contribute to escape. 13ut if the sheriff alone, on the ground of the debtor's ill-health, take upon himself any relaxation of the imprisonment, by letting the debtor go or reside out of prison, it would be. an escape 99. If a creditor of an imprisoned debtor discharged him, even if it be only for a temporary time, and even if the debtor, had agreed that if he did not pay the debt within a certain time, he would again be reconstituted a prisoner, he cannot afterwards retake him. 1 Bombay, 1856 Dec. '2, XI Moore 39 im^^^^ mi 756 SIIRRIFF ■J i t'HAXCIK OF PI.ACK OF CONFINEMKSTT. 100. But a creditor may couseutto the changing of the place of confinement of his imprisoned debtor, and to relax the rigour of imprisoumeut, without discharging < he debtor from his debt. The Right Hon. Sir John Patterson, p, 5.3 : — A question was urgucil l)i't'(»ro the Court of Bombiiy, icd hus been urged here, as to what will l)e the consequence to the isiieritt' upon the question of escape ; but really that is not the question in the case. There can- not be the slightest doubt that if these circumstances had taken place by the authority of the sheriff alone ; if ho, upon the representation that the defendant was suttering very severely in health, had taken upon himself to make this relaxation of imprisonment, and had permitted the defendant, accompanied byever so many of his officers, to go and reside in a house of his own, it would have been an escape. There can be no (piestion at all about it ; and why ? Because the sheritf having taken a party in execution under a capias ad satis- faciendum, is bound to keep him in his own gaol, he cannot of his own authority allow the prisoner to make a gaol for himself; he is bountl to keep him in arctd et salvd custodid, in order to enforce payment of the debt, and if he relax that arctam custodian at all, so far the pressure to compel the payment of the debt is relaxed also, which the sheriff has no right to do. Upon that principle it is, that where the sheriff had sutfered a man to go out of gaol, even in the custody of one of his officers, or as in the case of Benson vs. Sutton (1 Bos. & Pull. 24), he had suffered hira, before he was taken to gaol, to go away from the lock-up house in the custody of one of his officers, it was held to be an escape. Whether it was going at large again, or not, may be quite another question, with respect to the mere w^ords " going at large " ; but it constituted an escape so far as the sheriff was concerned, and entitled the plaintiff, if he thought fit, to bring an action against the sheriff lor that escape. Formerly he would have recovered the whole amount ; latterly the law has been altered, and he would recover damages only : but that is immaterial. There is no doubt, therefore, that the sheriff, of his own authority, could not have done this act. But then look to the peculiar cir- cumstances of the case. The plaintiff in any case, in order to be barred from continuing his execution, and from having the benefit of his judgment, must voluntarily discharge the defendant out of custody. If he does (lischarge him out of custody, I agree that if it be only for a week, he cannot, by any agreement which he may have made with the defendant, afterwards retake him, although the defendant may possibly have agreed that, if he does not pay the money within a week, he shall be retaken. That is decided law. Page 60 : — The creditor may, under certain circumstances, or if he feel it to be really material and important to the debtor, change the place of imprisonment, and relax somewhat the rigour of imprisonment, without discharging the debtor from his debt, it dearly not being the meaning of either party that any such discharge should take place. SJIKltlFF 757 C'lIAXUE or PLACK OF <'0!«FINKNK!«T. I yhoiild observe, that tliiH o])iiiion muHt nnl be taken to go the length of. supiKwing that it would be possible, for instanee, for a plaiiititr to siij to a defendant. " Oh, voii may go about just where " you jjiease, but it shall bo considered^iiat you are in custody; " because that would bo a fallacy and an absurdity: but liere was an actual removal from the gaol to a private house, and an acluai cuBtody of some sort continiung, which was intended to c linue us a botidfide custody, as far as we eanjudge from all the circunLstances of the case. kenponhibility of Brahyek v. Maci-ean ' 101. A sheriff' is liable, without proof of malice or want ol' probable cause, in an action for a false return of ri'scuc made by him upon a writ of capias, for the damage which resulted to the plaintiff" therefrom. Such return was con- clusive at that stage of the proceedings as to the truth of the alleged rescue by the plaintiff", whom it rendered liable to attachment for a cor.tempt of cotirt Avithout his being al- lowed to shew that the facts returned were untrue ; and con- stituted a misfeasance by a public ministerial officer in the discharge of his duties. VHK OF VIOLKNVK. A(iA KiiRBOoME Mahomed v. The (^nEEN ' 102. A sheriff's officer with a writ of rapias peaceably obtained entrance by the outer door, but before he coulcl make an actual arrest, was forcibly expelled from the house, and the outer door fastened against him. Thereupon the officer obtained assistance, broke open the outer door, and made the arrest. The Judicial Committee held, that the officer was justified in so doing, and that demand of re-entry, under such circixm.s- tances, was not requisite to justify his breaking open the outer door. Lord CAMPBEiiL, p. 246 : — There is no doubt that, a man's house being his castle, the ordinary rule is, that the outer door cannot be broken open to execute civil process ; but it is admitted here, that if the prosecutor had been arrested, and had then expelled the defen- dants from his house, they might have broken open the outer door to enter and re-take him ; and their Lordships think that as they had once been lawfully in the house, and he know that they were lawfully about to arrest him, and he unlawfully caused them to be expelled for the purpose of preventing them from so doing, he cannot be ]jermitted to take advantage of his own wrong, by thus defeating the process of the law ; and that they had a right to place 1 N. S. \Viilc8, 1875 June 10, L. R. VI P. C. 393. 2 Calcutta, 1843 June 17, IV .Voore 239. ^:. m^ 758 nut: or violence. SIIKRIFF themselves in the position which they occiinieroaniliio in not to lioict't to control tiif worde and to con- tint' tlivir operation, ii' thoy plaiidy and witlioiit any implication, hy direct meaning and intendment, f^ivo to theHection a larger hcopo. ThiH Ih the rule with reMpectto all actn of I'arliainent, Tliere are vtirioUK inhtancoH i)erl'ec(ly well known, where the legiHlatiir*' han enacted provinionH to which no rel'erence \h made in tlie preiiinhle. There are alwo casen where peiial enactmentn have been intended to npply to one chwH of the community, but by the mcxlo in which tliey have been enacted, they have been applied to another. But htill though that in Hoen when thet^o ena(!tment8 come under tlio view of courtH of .luMtico, tliey muHt, neverthelosM, give them the legal in- tendment, and aHHUmo the lugiulature to have meant what they have actually Haid. ClUWKOUn v. Sl'OONKK ' 100. Htutiites should be coustnted according to ,'heir turins and under the ordinary rules of construction whuteA'er may be the consequence. 110. If the Legislature makes laws which are tontrary to what it intends to do, the court cannot supply a meaning which is not expressed in the words or in the coutex. Loan Brououam, p. 9 : — The comstruction of the act muHt be taken from the fair words of the act. Wo cannot put out what poHnibly may have been the intention of the LegiHiature, we cannot aid the LegiKlaturo's defective phrawing of tho act; wc cannot add and mend and by construction make up deficiencien which are left there. If tho LegiHiature did intend that which it Iuih not ex])reHsed clearly, much more if the Legiiilaturo intended Kometliing ])rotty nearly the opposite of what is Haid, it is notfbrjudgcH to invent nome- thing which tlioy do not meet with in tho word (aiding their con- struction of the text alwayn of courno by tho context) it is not lor them HO to supply a meaning for in reality it would be nupplying it : tho true way m thoHC cuhoh is to take the wordn an the Legislature have given them and to take the meaning which the words given naturally Hupply unless where tho construction of those words is either by the preamble or by the context of the words in question controlled or altered ; and therefore if any other meaning was in- tended than that which the words purj)ort jilainly to import then lot another act supply that meaning and supply the defect in tho previous act. DOOLUHDASS PETTAMBEUnASS ET AL. V. JLVMLOI.L TlIACKOOKSEYDASa ET AI,. '■' 111. Statutes are, prima fade, deemed to be prospective 1 BowJ.ixv, 1846 Dec. 15, VI Moore 1. 2 Bccbay, 1850 June 28, VII Moore 240. STATUTES 7»il on of that h, lull tor k'llii'll tlio till' t'lia 't Mill to roil- i|ili(utioii, l^iT scope. riuTc iiro at lire liitH ]ir(Miiiililo. il(!iHii-il to rliicli tlitsy iiiit htill lio view ol' i li'^iil in- tlii'y have 'OONKU ' leir tiirms ever may iiitrary to nu>uning ex. -J niUHt be t out what we cannot 3anii(it add ch are left t expreHBed ling ])rotty ivent Home- ; their con- t is not for i.plying it : Legiislalure rords given wordrt 18 in (jiie8tion ing waH in- ort then let feet in the ILOM. i ET AI,. '•' respective 4'05IIITRr«,-TION Of «)uly, niivn ronslitntio fiilurin formam im/ionere licht'l, non pra- teritis. (2 Just. 8U2). IIkk IIkiiinkhs lir('K.MAiioYK V. fiin.i.ooHiKiv Motticiunii ' 112. Where AVords have been lou^■ UHi'd in a lerliuii-al Hensi^ and have been judicially coiiHtrued to have a certain meaning, and have been adopted by the Legislature an having a certain meaning prior to a particular Htatiilc, in which they are used, the rules ol' con«truction (f KtatiitcH require, that the words used in such statute should be construed according to the sense in which they lavc been so previously used, although that sense niiiy vary Iroiii the strict literal meaning ol' the words. So the words : " beyond the seas," employed in an English statute are not to be lonstrued literally, but mean and are synonymouH in legal imi)ort with the words " out of the realm," or " out of the land," or "out of the territories." The (^ieen v. 1'hick ' 113. The word "forthwith" Avhen used in an A^«/s- 254. DlTClIEK V. DkNISoN ' 114. In criminal cases where there is a doubt the benefit must be given in behalf of the person charged with au offeui'e. Lord Justice IvNioiiT KiurcE:— The rule, or maxim, " »SVm;)er (luhiis beniijniora pra'/erenda" iw, we helieve, as true in the law of Kngland as it was in the i{oniaii law, and the statute before us Ih at once a law of criminal jirocedure as to the otfcnees to which it relates, ami a Statute of Limitations as to penal pnweeut ions. With reference to that character, the jiresumption or inclination where presumption or inclination can tind place, ought to be, as their Lordships conceive, not against, but in favour of the person charged with an ott'ence, and sued penally under it. Jn re IlANinAM/s Patent * 115. The Judicial Committee put the following con- struction on the words "publicly and generally used" employed in the English patent statute. 1 Homhay, 18,52 Xov. 27, VIII Moore 4. 2 Ceylon, 1854 Fi'b. 17, VIII Moore 213. 3 Cnnterbiiry, 1857 Dec. 2, XI Moore 343. 4 England, 1858 Feb. 2, IX Moore 378. ■^^W.-rT^^ Tfl2 STATUTES ''OBTNTRrCTION OF The Kkiiit Hon. T. Pemberton Leigh, p. 389 : — It is not very easy to define what is the exact meaning of the expression " publicly and generally used," contained in the section. Xo patent is likely to bo taken out for a process or machine already in public and general use in the ordinary sense of those words ; but certainly wc cannot consider the use of the invention on board a single ship, iiowever public or for whatever length of time, as a general user, and, though negative evidence in its nature can hardly be very conclusive, and that produced by the petition applies only to a particular firm, we should be inclined to hold, if it were necessary to decide the point, that we wore satisfied that the invention had not been generally, though it has been publicly used, at the date of the original Letters Patent. GiBAUT V. The States op Jersey ' 116. By the Order in Council of the 28th of March 1111, it was enacted that "the act shall be lodged au Greffe, for fourteen days, at least, before it shall be determined...." The Judicial Committee held, that this Order in Council applies to the preamble as well as to the rest of the Act, and that the non fulfilment of this formality rendered the statute null and void, and they recommended Her Majesty not to confirm this Act. Lord v. The CoMMrssioNERS for the City of Sydney ' lit. In construing grants, the words vised must be taken in the sense which the common usage of mankind has ap- plied to them, as well in reference to the context in which they are found, as the circumstances in which they are used. 118. This rule of construction equally applies, whether the subject-matter be a grant from the Crown or a subject. of the word Dill v define Murphy ' in an Act of 119. Construction Parliament. Lord Cramworth, p. 514 : — The question solely turns upon the true construction and interpretation of the word "'define" used in the 35th section of the Colonial Act. There can bo little doubt on this ground. The attempt of the appellant to interprete and give it the meaning of "enumerate" is absurd, and plainly untenable. The word "define " in the opinion of their Lordships is equivalent to the word " declare." 1 Jersey, IS58 Feb. 1, XI Moore 320. 2 N. S. Wales, 1859 Feb. 7, XII .Moore 474. 3 Victoria, 18G4 Feb. 2, 1 Moore N. S. 514. STATUTES 763 CONHTRl'f^TION OF lot very publicly likely to general cannot however , though sive, and tirm, we he point, enerally, 1 Lcttei'8 SRSEY ' ch nil, u Greffe, lined... ." Council the Act, ered tho Majesty rONEY ' be taken d has ap- in which they are whether subject. [URPHY ' n Act of upon tho e " used in e doubt on ! and give untenable. equivalent (th.viiam v. TJkuuy 120. The colonial act gives power to the governor in council to establish now mixnicipalities by proclamation, but bol'oro acting, a petition was to be presented to him signed by the householders resident. A petition was accord- ingly presented by certain householders proposing certain boundaries therein described, but the governor in his pro- clamation described this new municii)ality in very different terms from those set out in the petition, including lands, which the petitioners had not asked to be included, and omitting lands which the petitioners had prayed to have included. That irregularity was held fatal to the valadity of the proclamation, and consequently the municipality in question was not duly constituted or created in point of law. 121. Meaning of word " Passen"rers." Thk 'Lion" ' LoKiJ RoMiLi,Y, p. 171 : — The meaning of particular words in an Act of Parliament, to use the words oi Abbott, C. J., in Ilea v. Hall, 1 B. A- C, 136, is to be found not so much in a strict etymological propriety of language, nor even in ])opular use, as in the subject or oc ion on which they are used. " It is in this sense that tho meaning of the word 'Passengers' is to be here considered." See Meuciiant Snipi'iNo Act. Dyke v. P^M.IOTT. TiIE ''(rAUNTLET" ' 122. Construction of penal statute. The Lokd Justice Ja.mes, p. 438 : — It was much pressed in the court below, and again before ihcir Lordships, that tho statute being a penal one, it was to be construed strictly. It appears to their Lordships necessary to say a few words as to this topic, which is so often pressed in argument. No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offense is within the plain meaning of the words used, and must not strain the words on any motion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, tho person charged has a right to say that the thing charged althougli within the words is not within the sjiirit of tho enactment. But where the thing is brought within the words and within tho spirit, there a penal enactment is to be construed like any other instrument according to the fair common sense meaning of the language used, and tho court is not to tind or make any doubt or ambiguity in tho language of a penal statute, where such doubt or ambiguity would 1 S. S. Wales, 18ti5 March U, IH Moore 205. 2 Admiralty, 18G!I ,Ji-.iu' 10, XI Moore N. S. 171. 3 Admiralty, 1872 Keb. 9, VIIF Moore N. S, 428. •764 STATUTES Is ■ 4 ■ C'ONSTRrCTION OF clearly not be found or made in the same language in any other instrument. Brown v. McLachlan ' 123. If a statute professes merely to repeal a former statute o'.' limited operation and to re-enat't its provisions in an amended form, an intention to extend the operation of its provisions to classes of persons not previously subject to them is not to be presumed as a necessary inference, unless the intention to the contrary is clearly shown. Eedpatii v. Allan. The " Hibernian" ' 124. The Canadian statute 27th & 28th Vict. ch. 13, sect. 13 declares that no owner or master of ship should be res- ponsible for any loss occasioned by the fault or incapacity of a pilot whore the employment of a pilot is compulsory law. Another statute, 27th and 28th Vict. ch. 58, sect. 9 renders employment of a branch pilot obligatory in Cana- dian waters for each vessal exceeding 125 tons, under a certain penalty which shall go to the Decayed Pilots Fund. In a cause of collision, held, by the Judicial Committee, that these statutes are to be read and construed together as being iuy>«/i inu/erid, constituting a compulsory pilotage, and exonerating the owner of a vessel having such pilot on board from lia1)ility for damage inflicted on another vessel. Sir Eobert Piiillimore, p. 34!> : — AVhen a statute inflicts a penalty for not doing an act, the penalty implies that there is a legal compulsion to do the act in question ; ana that tiiis princi])le is not art'ected by the fact that a jienalty has a particular destination. Mallwo March & Co. v. The Court op Wahus '' 125. When the law creates a rule of liability and dis- tinction both equally arbitrary, the distinction which i)ro- tects from liability is entitled to as much weight as the rule which imposes it. (taudet v. Brown. "The Arcjus" " The Hewson " • 126. The only rule for the construction of Acts of parlia- ment is that they shoudbe construed according lo the intent of the parliament which passed the act. If the words of the sta- tute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their 1 South Austnilia. 1872 Uoc. 11, IX .Muorc \. S. aS4. :; v. A. Lower Caiiiula, 1872. DfC. H, IX Moore N. S. 340. 3 Bengal, G, 1872 July G, IX .Moore .V. H. TiJ. 4 Adminilty, 1873 May 12, I,. U. v. P. C. i:>3. II STATUTES 766 any other CHIiAN ' former isious in ration of ubject to !e, unless ,NIAN " ' 3, sect. 13 be res- iK'apacity mpulsory )8, sect. 9 r in Cana- , under a ots Fund, ommittee, I together f pilotage, •h pilot on ler vessel. (J inflictB u . there is a principle is lestination. ' Wards ' y and dis- vhich i)ro- as the rule EWSON * s of parlia- the intent s of the sta- ,K, then no rds in their CONSTKVCTION <>F natural and ordinary sense. The words themselves do in such case best declare the intention of the law. Hlackwooi) v. London ciiauteiied JUnsc »f Austrama ' 127. When a statute leaves it to a delegated authority to supplement matters substantial as well as formal, these regulations are valid iu law and not ultra vires, if they fulfil the conditions which are mentioned in the following re- marks of their Lordships. Lord Selborne, p. 108 : — If these regulations, properly cons- trued, arc found to be reasonable and convenient regulations for carrying the act into full eft'ect, though they may govern not only the form but the etlect of instruments of transfer of those rights which precede the grant of leases ; if they are found to relate to matters arising under the provisions of the act, which they un- questionably do ; if they are found to be consistent with the pro- visions of the act, which they unquestionally are ; and if they are not in the act expressly provided for, then their Lordships cannot do otherwise than come to the conclusion that they are valid in law, and that there is no ground for the objection that they are ultra vires. The Mayor, Aldermen and Citizens op the City of Montreal v. Drum.mond * 128 Statutes relating to expropriation, or authorizing a municipal corporation to do certain works, usually give compensation to those injured by the exercise of such rights, but in the absence of such compensation, damages cannot be claimed, according to the doctrine damnum sine injuria. Sir Montague E, S.mith, p. 410 : — Upon the English legislation on these subjects, it is clearly established that a statute, which authorizes works makes their execution lawful, and takes away the rights of action which would have arisen if they had been executed without such authority. Statutes of this kind usually provide compensation and some procedure for assessing it ; but it is a well understood rule in England that though the action is taken away, compensation is only recoverable when provided by the statutes and in the manner prescribed by them. The Queen v. Burah ' 129. A statute conferring upon a governor the right to de- clare whether the act, or part of it, shall be in force iu a certain district, is not a delegation of legislative power, but is conditional legislation. Lord Selborne, p. 90G : — Where plenary powers of legislation 1 N. S. Wales, 1874 Jan. 25, L. R. V P. C. 92. 2 Quebec, 1876 May 16, L. R. I Appeal Cases 384. 3 Bengal, 1878 June 5, L. R. IU Appeal Cases 889. il 766 <'05ihtbv'c;tion ©f STATUTES exist as to particular subjects, whether in an imperial or in a pro- vincial Legislature, (hcymaj- be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legis- lature to persons in whom it places confidence, is no uncommon thing ; and, in many circumstances, it may be highly convenient. EOBERTSON V. DaY ' 130. This case depends npon the construction of the fol- lowing proviso of the CroAVu Lands Alienation Act, 1861 : " Provided also, that no such application to purchase as aforesaid shall be made for more than one square mile within each block of tive miles square out of each lease or a proportionate quantity out of any holding of less area." It was maintained that the meaning of this proviso was that a purchaser might buy a square mile, if it formed part of a block which though not a precise square, contained an area of 25 squarera iles ; and that it was not necessary that it should form part of a block which was a geometrical square containing an area of 25 square miles. Trimkle v. Hill '' 131. Where a colonial legislature has passed an act in the same terms as an imperial statute, and the latter has been authoritatively construed by a court of appeal in England, such construction should be adopted by the courts of the colony. Oriental Bank Corporation v. Wright • 132. An act was jsassed by the legislature of the Cape of Good Hope to impose a duty upon bank notes, and a re- turn of notes issued, namely, notes purporting to be issued at the places of business of the banks in the colony to be payable in the colony, was to be made to the government with the object of estimating the duty to be imposed under the act. This ai't was held not to apply to notes issued by the bank appellant, in the colony, payable in the colony, but put into circulation in the province of Grriqualand West where the bank had a branch. The rule of construction applied by their Lordships being that the intention to impose a charge on the subject of the tax must be shewn by clear and unambiguous language. 1 N'. S. Wales, 1879 Nov. IM, L. R. V Appeal Cases G3. 2 N. S. Wales, 1879 Dec. 16, L. R. V Appeal Cases 342. 3 Cape of Guod Hope, 1880 July 14, L. R. V Appeal Cases 842. STATUTES 7«7 111 a pro- lutely or ■ powers, 10 Lcgit*- common enient. Day' the fol- t, 1861 : ihase as ire mile ease or a ea." was that 3art ol" a au area y that it imetriral Hill ' tot in the has been ilnglaud, rts of the ruiGHT • e Cape of and a re- be issued >ny to be rernmeut ed under the bank but put st where I applied impose a by olear CONSTRUCTION OF Canada Southern Railway Company v. iNTEaNATioNAL Bridge Company ' 133. " Reasonable charge " must be understood to mean not what profit it may be reasonable for a company to make, but what it is reasonable to charge to the person who has to pay, whatever may be the benefit of the person im- posir^ -he charge. Attorney General of Queensland v. (hiinoN ' 134. The constitution act of Queensland provides that " if " any legislative councillor shall for two successive sessions *' fail to give his attendance, without permission, his seat " shall thereby become vacant." The respondent obtained leave of absence for twelve months from 23rd December 1882 to 23rd December 1883. He was absent, first, during the session, in June and July 1883 ; secondly, during the session that begdu in November 1883 and ended in March 1884 ; thirdly, during the session which began in July and ended in December 1884. It was held that his seat was vacant, as the respondent who had been absent during three sessions had not obtained permission to be absent for two successive sessions 135. The word " fail " is not applicable only to cases of wilful or negligent failure, but applies also to the case of fiilure wholly blameless, and even to illness. It means '■ absent from." JIakdino v. Board of Land and Wuuks " 136. According to the Victorian lands compensation Statute, 1869, No. 344, sect. 35, an oAvner is entitled to compensation for damage to his lands, by reason of severance from them of the land taken or of the lands being otherwise injuriously affected, and if there is an enhance- ment in value of his adjoining land arising out of the use or of the construction of the railway, the one should bo set off against the other. Bank of New South Wales v. Campbell * 137. The act incorporating the appellants lontained the provision that it shold be lawful for the said bank to pur- chase, take, hold and enjoy any houses, offices, buildings, lands or other real estate, merchandise, shi]is, mort- gages, etc., for the purpose of reimbursement only and not 1 Ontario, 18S3 July 4, L. R. VIII Appeal Cases 723. 2 Queensland, 188G Feb. 19, L. R. XII Appeal Cases 442. 3 Victoria, 1886 April 3, L. R. XI Appeal Cases 208. 4 N. S. Wales, 1886 Feb. 5, L. R. XI Appeal Cases 192. ; I 1 22 Ch. D., U. 2 9 App , cases 453. 3 22 Ch. D, 23. 49 •770 STATUTES CONBTRIICnOSI OF ru])tcy and those not ho coiicernocl, it shall bo a Hiirrcndered lease, and shall be altogether out of the ease. But, on the other hand, is that the only interpretation? . . . Now, tiie purpose of this section, and indeed the purpose of the whole statute, is in the first place to declare and discharge the bankrupt in cases where it is proper that lie should be discharged from liability ; in the next place, to facilitate as early as possible the distribution of the property which is to bo divideil among the creditors, and the winding up of the bank- ruptcy ; and, in the third place, to protect the trustee from any lia- bility to which ho might bo subject, and to which he ought not to be subject beyond what is necessary for the purpose of accomplishing the two prior objects. If, therefore, the statute can admit of any construction limited to these particular objects, wo must consider whether that is not a construction preferable to the tirst to which I have referred." And a little further on, Loi-d Cairns says : " AVhore there are two constructions, the one of which will do, as it seems to me, great and unuocessarj' injustice, and the other of which will avoid that injustice, and will keep exactly within the purpose for which the statute was passed, it is the bounden duty of the Court to adoj)t the second and not to adopt the first of those constructions." Now, applying these principles to the present case,what do their Lordships find'? The language of the statute in describing what it is which it is intended to prohibit, " distress for rent," is so general as to require (as indeed was admitted on both sides at the bar) some limitation in order not to lead to consequences apparently absurd or unjust. What and whose rent? From and to whom due? AVhat and whose goods? All goods on the premises shall be liable to be distrained by the insolvent's landlord, no matter whose property they are, or only those goods which form part of the estate to do administered. Both of the latter constructions are within the language of the section, and in order to ascertain which is to be preferred, their Lordships must loolc at the provisions of the statute and its purview and policy. Now it is a statute, as described in the preamble, for " giving relief to insolvent debtors, and pi'oviding for the due collection, administration, and distribution of insolvent estates," and it contains all the usual series of provisions apt to carry those objects into eti'ect, amongst them the 41st section finds in that view its appropriate place, and no section was pointed out to their Lordships dealing with the rights and liabiUtios of third parties, except when they come into competition with and affect the rights of creditors. The special policy of the statute is also in harmony with the established policy of legislation in bankruptcy or insolvency, which aims at placing a limitation ujwn the exceptional remedy of the landlord when it comes into competition with the interests of the general body of creditors, and the special language of the section points to that policy in the present instance. It places a limit upon the undoubted legal right of the appellant to a preferential hold upon specific property which was amply suflScient to meet her claim, and it substitutes for it a jjaymeut of the rent in full for six months, leaving her to her right of proof for the rest ; but in- ored lease, er Imnd, is lis section, st pliieo to )roper that o facilitate h is to bo the bank- in any lia- t not to be omi)lislung mit of any st consider to which I •e there are ,0 me, great avoid that which the adopt the ns." Now, r Lordships B which it is ,s to require imitation in unjust. it and whoso Istrained by are, or only itered. ;uage of the iferred, their 1 its purview •ream bio, for for the due estates," and those objects hat view its ;ir Lordships except when f creditors. >ny with the ► ency, which medy of the tcrests of the »f the section a Hmit upon ferential hold eet her claim, full for six rest ; but in- STVTUTKS 771 CONNTRITCTION OF asmuch as the payment in full is to come out of the assets of the estate, the reasonable inference is that the remedy taken away was one which was in force as against the estate, and not against the goods of a third party, who, if the respondent's contention is correct, would take all the benetits of tiie limitation of the remedy, and contribute nothing to the substitute. Again, the respondent's construction would tend to throw ujjon the insolvent estate a liability to pay six months' rent in full out of assets Avhich would not in any way arise from the abandonment to the estate of any equivalent. It a))pears to their Lordships, tlieret'ore, that to read tln^ prohibi- tion as ali'ecting a distress of goods the ])ropert3- of a third part}- would be extending it beyond the sct)])e of the general object and policy of the Act, and injurious to the landlord's rights. For what is the legislature supposeil to do in that case '? It ih sujtposed to have interfered with the appellant's legal right of distress, to have rendered useless to her all the expenses incurred before the order for sequestration, and, whilst shewing an intention to give her a substitute, which might not unreasonably be supposed to be adequate having regard to general policy, viz., payment in full of six months, it has limited that right, to payment " out nf a.ssets," which in such a case as the jircsent;, where a bill of sale holder has swcjit all tangible property into his security (and thev are frequent), would rendcv the substitute absolutely futile. Of the two possible constructions, their Lordshii)s prefer that which does not extend the operation of the statute to collateral effects and consequences beyond its general objects and jiolicy, and injurious to the landlord, with whose interests in competition with tho.se of a bill of sale holder the statute has not and does not j)ropose directly to deal. The view which their Lordships thus take is strongly sup])orted by the decision of the court of Queen's Bench in this country in the case of Jirorklehurst v. Lawe. It is true, as pointed out by the court below in the present case, that in the statute which was in Brocklehurst v. Lawe the subject of construction the distress was expressly stated to be one levied "upon goods or etfects of any bankrupt," and that one of the learned judges who decided that case adverted to that circumstance in the course of the argument. But the expression of these words does not form the ground of the decision, which rested upon the broad principle of construction to which their Lordships have already adverted. ' The judgment of the court in the present case does not appear to their Lordships to have rested upon anj' construction ])ut by the court itself upon the statute. Their judgment appears to rest almost entirely upon the authority of a prior case of Cohen v. Slade, and decided in the Supreme court. Now South Wales, in 1871. But that case cannot, in their Lordships' view of the true principle of construction to be applied, be regarded as an authority to be tbl- 1. 1E.& a. 176. 772 STATUTES (!ONMTRITi'TinW OF lowofl ; and their LnniNhips arc also unablo to agree in the view taken hv llie court below tliat that decision liad become «o incor- porated witli the general law and practice of the colony "s to lead to the reasonable belief that it had i)een acted iqion so as to render it desirable to u])hold it. -See LEOisiiATURE : legislative powers, Crown Lands : re-sate of hind pro/jerlies. <'0xntrr<'ti09r of consomdatko mtati7ten Boston v. J.kmkviik ' 143. Their Lordshii^s laid down th*A r\\\e as to tho manner in which (.'oiisolidatcd Statutes should be eonstrned in the following remarks. LoKD Westblky, p. 434 : — Tho question is governed entirely by tho language of the colonial statutes. The court of appeal in Lower Canada is the creation of statute, and tho subjects upon which appeal lies to that court arcdetined with reasonable clearness. The jurisdiction of the court existed before the consolidated statutes, but tho consolidated statutes annulled all the antecedent statutes upon the subject. The consolidated statutes may bo treated as one great act, and their Lordships think it would not bo wrong to take tho soNoral chapters as being enactments which are to be construed collectively , and with reference to one another, just as if they had been sections of ono statute, instead of being separate acts. STATUTE OF FRAUDS vaneh xot witiiix McKay v. .Iutherford ^ 144. A contract was made by a contractor with the government to supply stones lor the construction of a canal. Held, that an agreement entered into by another contractor to share in the profits of the undertaking, although the contract was not capable of being completed within a year, is not such an agreement, as by the Statute of Frauds, 29th Car. IL, ch. 3, s. 4, is required to be in writing, but may be proved by parol evidence according to the law of England by which this cause must be determined. NOTE OR MEMOKANDVM IN WRITIXO. WiLMAMS V. Byrnes ' 145. Upon a contract of guarantee for the purchase of a steam-engine, made in the following form : " I will furnish " H. with funds for the purchase of a steam-engine, and 1 Quebec, 1870 Jan. 25, VI Moore N. S. 427. 2 Lower Canada, 1848 Dec. 12, 6 Moore 413. 3 New South Wales, 1863 Feb. 21. I Moore N. S. 154. STATUTK ()!• I intemlcd to prevent, their Lordships think the question must he answered in the negative. The words require a written note of a liargain or contract; the statute clearly making no distinction between tliese two words. This language cannot be satisfied unless tiie existence of a bargain or contract appear evidenced in writing, and a bargain or contract cannot so appear unless the parties to it are s])ecificd, either nominally or by description, or reference, It is true that the statute does not require the whole bargain in all its terms to be stated ; it stipulates only for a note or memorandum of it, signed by the party to be charged, but it does in effect require that the essen- tials, i. e. all those things without which it can be no bargain at all, shall be stated. Upon this principle it was that the courts determined, under the 4th section, that the consideration of an agreement must appear on the face of the memorandum of a guarantee, or bo matter of necessary implication from its language. It was obviously the intent of the statute to prevent, as far as it could conveniently, the mischief of being obliged to have recourse to oral evidence in regard to the transactions within it. Hut it would fail to accomplish its object in a most material particular, and in one in whicii its require- ments might always be most easily satisHetl, if it did not impose the necessity of stating the name of the seller as well as of the buyer, of the party by whom goods were to be supplied, as well as of him to whom they were to be supplied, under the 17th section, or of the party to be guaranted as well as of him who is to guarantee, under the 4th section. Unless this be done, oral evidence must be had re- course to, and the risk incurred that a party may be sued by one with whom he had never intended to have any transaction ; a matter of the greatest importance under many supposable circumstances. Much of the difficulty which has been felt in this and similar cases, arises from not carefully bearing in mind the distinction between the necessary elements of a simple contract at common law, especially where it becomes complete, not at once, but by successive steps, and the requisites to make it a ground of action, which the statute imposes. P. 198 : — Their Lordships do not doubt that a promise in writing signed to pay any one unnamed, who shall furnish goods to the Ill STATl'TK OF I'lfAT'DH III ! MOTK OR MKMORANDII.n IN WHITING. writor, (ir to u 'hinl iicrson imikiiif,' (Jcfuull, will U'conio a liiiidiii^^ contnu't Willi any one, wluiNoovt-r lio inuy \n\, wiio shall acccitf tlio proiniMo ill writiii;; ami t'lirnish tlu; /foDilw. ijiit in siich vn^v llu' w- (juisilion of'thu Htatutc will liavo hoon cuiniiliod wilii. STUKET Sic Hkuiway. SliniiOdATlON CONVKNTIO.VAI, Uk.SNY KT AI-. V, ^fdAT ' 14(1. When the debtor hoiroAVs a Kum lor (he purpose of paying hiw debt, and of Nulndyatinu: the lender in the rights of the creditor, it is not net cssary that the debtor should sul)ro!»atu ihe lender simultaneously with the payment. 147. In this ease, two sureties paid a privileged (h'bt of the debtor with moneys borrowed from tin; res|)ondent. Fifteen months after, this latt(!r obtained from the sureties a deed of transfer and subrogation before a notary subrogat- ing him in all their elaims against the debtor. The appel- lants who were th(^ inspectors of the d(^btor who had became insolvent contested the claim of the respoiidcdit. The J idi- cial Committee admitted the subrogation as legal and the resi)ondent was 'ollocated for the full amount of his claim. HrnNTJTITTKn PKOPKHTV. TiKri.KKK V. "RKAnnitv ' 14K. If a •i'rfVii fie suhs/Mnli'ht to ibstituted .lishod by Lordships, came. ET ATi. •' ir ln'MW ill cd by the iig at thf upon the tn charge, ! payment WHAT <'«.>fN'riTi"rt:N \>Y iht' coinpany of part of the amount of the dainau'e kus- tallied by such lire, did assifrn, transfer and niakf over lo Ihem all riLfht, Hlle, inleivst, propi'rty, elaim and demand \vhatsot'%'er whirh the H:\id fithn'i//ie minht have against the respondiMitH for the loss oi' tlie said church and other propt'rty. The Judicial Conimil tec held, ihat this «;onslitutcda valitl Hubrogation of the debt due lo the insurers in the rights of \\w fnbiiijue, according to the French law. And thai on ihe authority of Toul/ier, til. ;{, arts. 1 17 and \'2X, if the transac- tion l)e a subrogation, it is immaterial whelher the creditor uses the term subrogation or cession in tin? instrument itself. See In.sur.vn(!K: eotlem verho. SUP.STITUTION CAPACITY or TIIR NCIIHTITirTK. Kino v, TriiNSTAi,!, ' li'O. Wherever there is a limitation l)y way of substitu- tion, the time when the substitution opens is tln' time with referemu! to which the capatiity of the sul)stitut(! to take is to be determined. TiiK LoRi) .Ikstice .Iamks, p. 04 : — Moreover, it ap|iO!irs lo tiitiir Lonlsliips, tliat tiic (liin(Milly (if any) is entirely ruiiioveil in tlii.-t ease \>y tlio poealiar provision of tlio old law ilerivcd troni tlu! Itomaii law, which has boon iiicorporati^d into and now forms |)arl of tlio Canadian codo (art. .S;{8), lo the etfocl that whereever there is a limitation by way of sid)stitution, thai when the suhstitution open.>i is the time with roforence to which the ('ai)acity of the siihstitale to take is to be determined. Il is difficalt to say to wiiat class of cases that would apply if not to this. It is suggested ii\deed that this provision was inserted in the (Jodo with regard to the possibility that the intended substitute might not bo in existence, or might not have aeriuired a particular character or qualification at tiio ilate of the will or at the death of the testator, and that it api)licd in such cases oidy. There is no su(di limitation expressed in the Code, and it was conceded, and projjerl^' conceded, that if tho incapacity were clearly a personal incapacity of a general character (as distinguished from an incapacity to take from a particular person), for instance, as that of a felon, a person civiUter mortuus, an alien, or a person under any peculiar inca|ja(!ity of that kind, then in that case, if the incapacity were removed be- fore tho substitution opened, tho entitled to a share of the donation as well as those who died after the donation. Sir Montague E. Smith, p. 393 :— A question arose on Beiuidry's title, viz., whether the children of Benjamin, one of the brothers of tlie donee, were, in the events Avliich happened, entitled to a .share under the deed of gift. Benjamin was dead at tlie time of the gift, but four of his brothers and sisters were then living. These all died before the donee, but two of the four left children ; and the question is, whether the childien of Benjamin are entitled to one tliircl, as the grand children of tlie donor, or are excluded by the terms of the donation. The conclusion to which their Lordships have come on the prin- cipal matter in the Appeal makes a decision on this question unneces- sary', but since it has been argued, they desire to say they agree with the judgment of the majority of the Court of Queen's Bench in favour of the Respondent on this point. They think in the events which have happened, viz., the death of P. X. Castonguay without children, having survived all his bro- thers and sisters, that all the grandchildren of the donor became entitled to share ("par souches"). The literal terms of the ultimate limitation would inchule the children of Benjamin, although be died before the donor ; and their Lordships do not find in the context such evidence of an intention to exclude them, as would justity a construction different from that which the ordinaiy and natural meaning of the language imports. In the result tlieir Lordships will humbly advise Her Majeetj- that both the judgments of the Courts below ought to be reversed, and that the opposition filed by the Kcsijondent to annul the seizure ought to be dismissed, and that he ought to pay the costs occasioned by such o])position in both the Courts below. For their Lordships' full remarks, see Substitution : sale of substituted property, same cause. McGiBHON v. Abhott '' 152. An English will by a testator domiciled in Lower Canada must be interpreted with regard to the law of Lower Canada, and not that of England. Where a testator domiciled in Lower Canada bequeathed a portion of his residuary estate to his executors upon trust 1 Quebec, 1873 March 1, L. R. V P. U. 362. 2 Quebec, 1883 July 18, L. R. X Appeal Cases 653. •I marks of a use, VUDllY ' o one of ?s before etiiru to deceased re of the ion. Bciiudry's irotlici-H of to a share of the gift, sse all died 10 question lird, as the •m.s of the n the prin- n unneceB- hey agree s JJeiK'h in , the death ill his bro- lor became he ultimate jgh be died he context id justify a md natural [er Majesty le reversed, the seizure occasioned Lordships' same cause, Abuott ' iu Lower 7 of Lower equeathed upon trust SUBSTITUTIOX 777 t^OKSTRi;("ri4»W OF to " pay upon the death of his son, the capital thereof to " such sou's children in such pioportion as my said son " shall decide by his last will and testament, but iu default " of such decision then share and share alike as their ab- " solute property for ever ;"' the Privy Council held, that the son had not only the right to apportion the capital between all his children, as well those of his then existing marriage as those of any future marriage, but also the right to dis- pose of the property iu favour of one or more of his children to the exclusion of the others. Sir Barnes Peacock, p. G(38 : — • Mr. Justice Eamsay also, in his reasons, states that '• Under the Eoman law and under the old regime of Trance there was a great question as to the effect of the substi- tution of the children or of a class, as for instance the relations, and at last it seems to have been determined that when the children of the (jrevi were called nominatim they held of the original testator, and that the father could not affect the dispositions; but that when the children were called collectively, there was a difference of opinion as to whether the father could select among the children so as to give to some and exclude others," He adds, "although the affirmative of the proposition cannot be supported on a strictly legal argument, it seems to have prevailed." He then cites some authorities in support of his argument. Their Lordships are not prepared to say that that exposition of the law is not correct. If then, a man to whom an estate is given for life, charged with a substitution in favour of his children after liis death, can substitute one or more of his children to the exclusion of others, the addition of the words in the present case, ■' in such pro- portion as he shall decide," does not affect the nature or suijstance of the substitution. It only gives power to the father to do that which he could have done under the general words of the substitu- tiulated, either in favor of the donor or of third persons.'' Article 782 says, " It may be stipulated that a gift inter vivos shall be suspended, revoked or reduced, under conditions which do not depencl solely upon the will of the donee." And Article 78;^ says, "AH gifts inter vivos stipulated to be revocable at the mere will of the donor are voiil." It is obvious that the law thus declared, how- ever closely it may cori'espond with the ancient law of France, as contained in the Coutume de Paris, ditlers materially from the law as it exists under the Code Napoldon. The latter prohibits substitu- tions altogether, and avoids the instrument which attempts to create one, but retains the principle of the irrevocability of a gift by an act inter vivos, subject to a "droit do retour ", which it thus limits and defines : — ■ Le donateur pourra stipuler le droit de retour des objets donnas, soit pour le cas du preddces du donataire seul, soit pour le cas du prc^deces du donataire et de ses descendants. Oe droit ne pourra etre stipuk' qu'au profit du donateur seul." (See Code Civil, Articles 894, 89C, 951. ) Nothing is said in these Articles of any resolutive condition other than this limited " droit de retour." A resolutive condition (a term which comprehends the •' droit de retour," however limiteil) is thus defined by Dalloz (Eepertoire de Jurisprudence, Article 1740) : '"11 y a condition r^solutoire, en ma- tiAre de donation, lorsque la donation se r<'alise imm(Sdiatement, avec tons les etfets qu'elle doit produire, au profit du donataire, mais sous la clause que, si tel evC'uement incertain arrive, la donation prendra fin, et que les choses seront remises au meme dtat que s'il n'y avait pas eu donation. Le donateur, qui t-tait maitre de ne point donner du tout, pent evidemment ne donner que sous cette modalite. Mais quel sera I'etfet de I'accomplissement de la condition resolu- toire? On vient de dire qu'elle ne suspend point la realisation de la donation: ainsi le donataire acquiert, d6s i present, la propriety meme des biens. Mais lors de I'accomplissement de la condition, la •lonation sera rdsolue, c'est ^ dire que le donataire cessera d'etre propridtaire des biens qui lui ont dte donniJs et livr^s." It is obvious from this passage that when a resolutive condition SUHSTITUTIOX 781 lie Napc>- nbigiiouB its plain iUiactby wnerwhip isito, and evucable, ondition". r liy law ; ilcfis it be ion of all une ettect A donor re tour ") donee and nay, in all persons.'' }lvos shall ch do not 78H saya, ere will of ired, how- Prance, as m the law s substitu- s to create ^ift by an ;hus limit ■*< retoiir des e seal, Moit s. Ce droit (See Code icles of any our." ! •' droit de )ertoire de ire, en ma- idiateraent, fctai) e, mais a donation .at que s'il Je ne point e modality, ion rt'solu- jation de la I propridt^ ondition, la sera d'etre '6 condition EFFECT OF takes ctfect it operates as a revocation of the gift, and divests the donee of the property in the suliject of the gift which the act of donation had conferred upon him. If, then, it was competent to Pierre Hoy by the law of Canada to stipulate by way of resolutive condition that, in the event of his dying without lawful issue, the ])r()perty should pass as he might direct by will, there can bo no difficulty's to theHW(/MSo;je/'a«(/H)f the condition when it took etfect. The proprietary right in this land thereupon ceased to be in Joseph Koy or his heirs ; it fell again within the dominion of Pierre, and became capable of passing with the rest of his estate under his will. Let us now try the legality of the supposed condition by the Articles of the Canadian Code. It does sin against the princii)le of irrevocability, because its accomplishment does not depend solely on the donor, but on the happening of an event under whidi he had no control, viz., the death of Joseph without issue. If it bo objected that it is not .strictly a " droit de retour " within the meaning of the lirst clause of Article 77!>, because the event on which it depends is not that of the donee ami his descendants dying before the donor ; the an.swer is that it may nevertheless be " a valid resolutive condition," within the meaning of the latter clau.so of that section, which says that a resolutive condition maj- be sti- pulated either in favor of the donor alone, or of third persons. On the letter of the Code the supposed condition seems to bo a valid one. It has, however, been strenuously argued on Ijohalf of the appel- lants that the illegality of such a condition is established by the authority of writers like Deniolombe and Troplong who, though they are professedly only commenting on the Code iS'ajjoleon, inci- dentally state what was the ancient law of France on this subject. Their Loruships desire to say nothing that may seem to derogate from the authority of these eminent jurists. It is, however, obvious that the works cited do not profess to be a complete or authoritative exposition of the old law ; and that if the}- were, it would not follow that the law of Lower Canada, during the long period that has elapsed since the separation of this province from France, has not more or less departed from the stricter rules which, even before the Code Napol(5on, may have obtained in France. However, their Lord- ships are not satistied that these writers are so adverse to the con- tention of the respondents as they have been repr(>sonted to be. Both sides have apjjoaled to M. Troplong's commentary on the 951st Article of the Civil Code, vol. ii,paragraph 1201 to 12(J9."The Article is that which restricts the " droit de retour " within the limits above- mentioned. And the general object of the learned commentator is to show that particular provisions may fairly be construed to be reservations of a " droit de retour" rather than substitutions ; the consequence being that in the former case the reservation, if within the limits prescribed by the Code, will be operative ; and, if beyond those limits, will be simply inoperative : whereas such provisions, if construed as substitutions, would vitiate the whole disposition. Ho applies this reasoning to a stipulation for a "droit de retour " to the donor or his heirs, arguing that it was not because tho latter was roally a substitution, but because its consequences were similar to : " ^' ii wiwiinwiMfpijaBW J pw^^ '•? SI 1 ifll 1 ■ 1 782 KFFK<^T 4»F SUBSTITUTION those of a substitution, that the Code Napolt^on limited the benoHt of a " droit de retour " to the person of the donor, excluding his heirs. And he fully admits that by tlie ancient law such a reservation would have been valid, and that, if the donor happeneti to die before it took offect, his heirs might have claimed the benefit of it. He saj-s: "Tliere will always be this essential ditt'erenco between the "droit <]<■ : "tour " and a substitution, that in the former case the heir comes ibj ward as the representative of the donor and as exercising a right wliit'ii w luld have come to him by reversion if an exceptional law had not deprived him of it; whereas the substitute is only a third person who is so far from exercising an}' rights of the donor that the latter in making an institution and substitution, has shown that he does not wish to retain any of his rights, but that he abandons them all." He adds, '• Kn un mot, dans le droit do retour, stipule' mcme au profit des heritiers, la chose donnde remonte vers sa source ; dans la substitution, elle s'en dloigne ; dans I'un ellc est censde ren- trer dans la succession du donateur defunt, comme si olio r" i fdt jamais sortie; dans Tautre, elle passe dans un patrimoine etranger." Troplong, therefore, must be admitted as an authority in favor of the proposition that a stipulation for a " droit de retour" to the donor or his heirs was permitted by the ancient French law. lie no doubt afterwards comes to the conclusion that where the stipulation is for a "droit dc retour" for the benetit of a tliird person, whether heir or not, and without mention of the donor, the stipulation is either altogether invalid, or can take effect only as a substitution ; " le donateur n'etant pas du tout dans la stipulation de retour." But on this it is to be observed that if the stipulation really imports the reservation of a power to the donor on the happening of a certain contingency to dispose of the property by hiswill, it is in substance a "droit de retour " to him and his testamentarj' heirs, although he is not expressly named in the condition ; its effect being to l)ring back the property into liis succession as if it liad never gone out of it. And the objection founded on the mere letter of the stipulation, viz., taht it does not in terms mention the donor, can hardly prevail ugainst the words of the 77!Hh Article of the Canadian Code which says, " A resolutive condition may in all cases be stipulated either in favor of the donor alone or of a third person ". Their Lordships having to deal with an instrument, as to the con- struction and effect of which there has been so much difference of opinion amongst those conversant with such dispositions, and with the liiw to be applied to them, have naturally felt considerable doubt in this case. But the conclusion to which they have come is that the construction put upon the disputed clause by the majority of the Court of Queen's Bench is correct ; and that there is nothing in the law of Lower Canada which is repugnant to that construction, or to the effect given to it. They may further observe that even if the appellants had suc- ceeded in showing that the reservation implied in the construction put upon the clause by the judgment of the Court of Queen's Bench was unlawful, they would not thereby have established their right to vecover in this case. To establish their title they must show that l-M^ 11 SITHSTITUTIOX 78:5 jenctit of lis licirs. on would e it took lo sii}-s : "droit eir comes r a rijrht ional law u third oiior that own that abandons stipule «i Hourco ; onstic ren- r" 1 fat trauifor." fa\or of r " to the w. lie no tipulation , whether )ulation is )stit\ition ; our." But iports the fa certain substance thouiih he g to brinii' one out of itipulation, lly prevail !o(le which d either in to the eon- rterence of *, and with •able doubt mc is that irity of the liing in the 3tion, or to H hail suc- jnstruction en's Bench eir right to t show that EFFECT OF the clause constituted a valid and irrevocable substitution in their favor. That consequence does not necessarily follow because tlie clause was not a valid resolutive condition at all. The arirunieiit for the appellants assumed that the words mii^ht import the reservation of a power to the donor to " ii;rever " the substitutes with further substitutions. Hence, if he did not intend to create, and did not cre- ate an irrevocable substitution in favor of the other heirs, the clause may well be taken to reserve a power, which has not been duly exercised, to " grever " the institute Joseph Roy with further substi- tutions. But what would be the etfect of hoklinjj; either that thi' con- dition was altogether void, or that it reserved a power to creati' new substitutions in succession to the tirst, which had not been exer- cised. The effect v mid obviously be that there was not valid substi- tution after that in favor of Joseph's children; and that, on the failure of that, the property became absolutely his, and capable of passing under his will On this view of the case it woukl be only necessary to qualify the grounds of the judgment, which would have to remain a judgment for the dismissal of the a])pellants' suit. Their Lordships, however, have already intimated their opinion that the judgment, as it now stair! ;, ought to be atiirmed. This being so, it is unnecessary for them to decide the question of ratiHcation, and they abstain the more willingly from the considera- tion of that question, because they have not the benefit of the judg- ment of the Court of Queen's Bench upon it. They may, however, observe that whatever might have been their opinion as to the effect of the Act of the 10th of October 184:8, they would have felt consider- able difficulty in holding that there had not been ''acceptation tacite" by reason of the receipt of the rents of the property bequeathed by Joseph lioy to Madame GrothC', and in distinguishing this case from that of Eoy v. Gagnon (3 Lower Canada Eeports). Nor, as at present advised, are they satisfied that Mr. Justice .Smith was warranted in treating the amendment in the pleadings which had been made under a judge's order, pronounced after hearing both jjarties, as " utterly irregular and insufficient to jiut the plaint irt's to answer." Their Lordshijis will humbly advise Her Majesty to affirm the Decree under apijeal, and to dismiss this appeal with costs. ki«ht of the svbstititte. De Montpout v. Bboehs. ' 154. The testator by his will instituted trustees whom lie charged with the mauagemeut of his estate aud to coutiuue his affairs as in his life-time, the revenues of his estate to be divided two-fifths to the trustees and three-fifths to his daughter, to be paid to her when she has attained twenty- five years of age until her death ; and at her death the resi- due of the estate, interest aud capital to be divided amongst her children. 1 Cape of Good Hope, 1887 Dec. 22, L. R. XIII Appeal Cases 149. gim«»iJ*a»wfggffiiVi_g^ Sll'fi 784 SUBSTITUTION BIOIIT OF THE NrnSTITVTE. At the ago of twenty-five years, the daughter and the trustees made a deed of compromise in settlement of all the revenues of the estate up to that time. This compromise was contested by her children who were the substitutes, but it was held, that they were bound by the deed of compro- mise efi'ected by their mother. sale of substituted property. Lecleke v. Be.vupry ' 155. Where the donor who has given a property and charg- ed it with a substitution in favor of the donee's children, gives at the same time to the grev6 de substitution the power to sell the land for a rent charge, if it should be thought by experts to be more advantageous to him, it is not necessary for the donee to have experts appointed by the court to value the property or to have the sanction of any jiidicial authority to sell the property. 150. And if such authorization were obtained, and if the judge should impose any condition not required by the donor, that part of the decree should be considered as directory only, and not as imposing a condition which rendered the sale void if it were not complied with. 157. The power given to the donee to sell the property may be by him assigned and made over to another person. Sta MoNTAouE E. Smith, p. 388. — The principal objections urged at their Lordships' Bar on this part of the case were based on the deed of subrogation, by which Lecl6i-e was subrogated in all the rights of the donee. It was contended that the power of sale was a trust for the benetit of the substitutes, which could not be delegated, but their Lordships think this is not its true nature. The settles gave this power to her son the donee, who was the principal object ()f her bounty, for his own benefit, as well as that of his successors. She guarded the substitution by two conditions, viz., by requiring the sale to be for a rent charge, and a previous report of exports. In so far as the power of sale att'ectcd the usufruct, Lecliire had, after the transfer to him, a beneficial interest in the exercise of it, and to that extent the subrogation was protective of his own rights. The execution of the power, no doubt, remained with F. X. Castonguay, ami he, in fact, did exercise it by authorizing and joining in the sale, and executing the deeds of conveyance. No authority in Canadian law was cited to show that the aliena- tion of the usufruct ijy Castonguay, and the subrogation of his rights in Lcdere, rendered the execution of the power by the former in- valid. Upon principle, there is no rea; ' it should be so. It might be very much to the pi-ejudicc of the substitution to hold that powers of this kind were extinguished upon a sale of the usufruct, which the 1 Quebec, 1873 March 1, L. R. V P. C. 362. SUHSTITUTIOX 785 and the of all the [ipromise utes, but compro- JAUDRY ' id charg- reu, gives power to ought by necessary court to y judicial lud if the d by the idered as m which ;h. property 3r person. tions urgeil lased on the d in all the f sale was a e delegated, The settler icipal object I successorH. ly requiring ■ experts. In •e had. after of it, and to •ights. The Dastonguay, ; in the sale, it the aliena- af his rights e former in- I. It might that powers 3t, which the HALE <>t' MITBMTITIJTED PROPERTY. grevi is competent to make, or that its subsequent execution should be considered necessarily to indicate fraud. In an analogous cues arising in England it was hold that the power was not o.vtinguishcii, and tluit its subsequent exercise was not evidence of ma/ayiJfs. (See Alexau'ler v. Mille, L. R.. 5 Ch. App. 124). No doubt Leclere tooiv the most active part in tlie niunagcmont of the sale, but F. X. Castonguay concui'rcd in all that was done, and had scj)arate legal advisei's to whom llic conditions of sale were sul^- mittcd. Nothing unusual or oiijectioiiaMc has been pointed out in these conditions, ami it appears the usual and full publicity was given to the sale. Evidence was given of negociations i)etwcen Leclere and Mr. Simpson, with a view to establish that Simjison was prevented from bidding by a promise from Locliiro to sell to him after the auction, but the proof on this point is quite inconclusive; and, on the other hand, there is much evidence to show that Lecliire exerlci)oars to tliem th;il, at tJio most, the tutor was otdy necessary for the purpose of having the experts duly a|)]jointed. Article 951 of the Coilo of Lower Canada, which was assumed to be dechiratory of the former hiw, was relied on ; i.m that article does not relate to sales niiide in virtue of a power contained in the settlement. Such cases appear to fall within article !»52, which is in these terms : — "The grantor may indefinitely allow the alienation of the proper- ty of the substitution, which takes place in such case, only when the alienation is not made." The French law applicable to the ])rovince does not ap])ear to re- quire the ap2iointmenl of a tutor where the alienation is allowed by the grantor. M. Th(5venot D'Essaide in " Trait 6 des Saljutitutions" (1266) spe'iks of the tutor to the substitution as a novel introduction. After referring (1272) to two cases Avhich do not comprehend the ])resent, he says (1273) : — ■' Ilors cos deux cas fixes ])ar I'ordonnance, nos tuleurs i la substitution no sont guere nommes que jiour mottre le grevu on etat do fairo juger ses ))ri5tontions contre los substitues doiit le droit n'est pas ouvert. Cost un per.sonnage qui a ete imagine pour donncr au grevd un adversairo," &c. It is evident that the appointment here spoken of being for the ])urposo of providing an adversary, where a judicial decision on some claim of the yrevi in oj)position to the substitutes is sought to be obtained, the rule is not ap])licable to the case of a sale m exercise of a power, where, as already shown, no action and no judicial sanc- tion were required. It has already boon pointed out that the appointment of the tutor was originally applied for in tliis case to name an expert on tht' part of the substitutes. It, no doubt, appears that when the tutor declined to nominate one, he was treated as an adversary against whom, as representing the succession, the suit was continued to obtain a declaration of the right of the (jrev4 to sell. But if neither 788 SUHSTITITTION NATK or KVIINTITl TKD l>H»l>i;HTr. 11 siiil MDP jinliciiil .•Hilliority I'm' llu> siilc wciv nt-ct'^siiry, tlicir Ijnrd- Mliip lliiiik till' Carl (if till' lulur hciiii^ inmlc :iii iulvcrHiiry in a ikumI- loHH Huil canriDt reiulor hip> iKirlifipatioii in tliis actuiil huIo I'HHi-iitial to itH validity. Tlicir lidfilhhips iiavt' tlicrt'tiirc conii! to tho concluMion tiial nont- of till! oliji'ilions made to tlic Halt! can In- maiiilaiiu'd. In doiriLC so, Umy arc j^lad to lie sparcil tho necessity of set tini; aside a sale wliicli the family itself Im-- not oljeeled to, at tlu> instance of a si lani^ei' wlio iiurcliascd an interest at a low price, on tho s]>o( 'ution tiial he mi^ht HUcceed in annulling.:; it. SUCCESSION At'<-t-,l>TAX(-K or liKFELVRE V. liEFErvllK ' l/iK. Where a person to ■whom a «U((;es(sion has devolved haN reiiouiiit'd it, and has assisted to the inventory and to the report of the Kherill" recorded in court, withont any pro- ceeding on his part, it is too hite a month after, to demand, by remonstrance to the court, to accent and share in the 8Ucce88iou. HMHN or MATI'RAI. (HILDRKN. Her Majesty's I'lioci iikijh-Geneuai, v. Buineai- ' 159. According to the hiw of France, the heirs of a natural child are his father and mother who recognized him, and in their default, his natural brothers and sisters or his " i/exrendants " except with regard the property tne de- ceased has received from the father or mothtr, which goes to his legitimate brothers and sisters according to article 70i! of Code (Jivil. 1<)0. In that article the word " descendants " is not limited to legitimate descendants, so as to preclude the natural chil- dren of a natixral brother sixcceeding to their natural un(;le's property. There is no restriction with respect to the word " descendants " in art. 760 ; natural childrt»n are " descendants " within the meaiung of arts. 7*35 and 7, a sale wliicli )t'a hI fiui^tT ition that lu' kFkI VHK ' IS dt^volvt'd tnry and to ut any ]>ro- to dt'Uiand, ihare in the JUUNKAr ' heirs ol' a recogniztul iid sist'^rs or icrty '"tiii dv- hich goes to » article TOD i not limited natural ehil- tiiral untde's pect to the children are 65 and 700, the sucees- terity ; and are conver- nate child is rin/i; upon tlii> on whicli this ined to us. im- SUC'CKSSION "Hi) iiKiiiH or !WATiiRAi. < iiii.i>ni:w. ooriimi In niiisidcr tin- i;ciu'ial |iriii(i|ili's liy wliicli the ciiiiiMs arc to 1)0 ;,'n\(irnfil ill iho const riicl ion uf ilio <'oili'. Tiicsi- jirinciidcs, an laid down liy I lie Court of Ciiamition, und llic Icatlini,' li'Xt writers of l''raiii'c, art) convciiioiitly cidlcctcii in tlic .'{rd sect ion uf Sircy's note ii|..Mi arliclo 1 (.f the Cod,., (Nos. Ill, 112, W^his, iia, 114, lilt). it icKiiltH, we tl.inU from tlicst' |iriiii'i|)li'N, liiat in dctci'miniiii,' this (jucsiinn wc iiro to lie iriiidi'd hy thi' plain sense cpI' ihr law wliich applies to the quostion ; that we are to iiiaiic no dislineiion, which can alter that Hcnue ; that, assnuiini; tlie sense of the law lo ho po- sitive, we are not to niodity or restrict the law ; that we ;ne not to weiudi the reasoiiH of the law ai^ainsl the words of it; and (which, perhaps, is more pertinent in its hearing iipi.n the present ea>e), thai, if the law appliealiU) to the ease he special, we are to understand it ace(;rdiit;f to its ])iirtii iilai" scheme ( " propre systeine'j, without addini^ to it tho rules uf what is called (ho common law. KSCAMEII V. KsrAI.IKR ' 102. In Trinidad, under the Spanish law and before the tJrdinance of 1845, children born before marriage have the stains of legitimate children for every juirpose, except that of succeeding as heirs to real estate in Kngland. This hist Ordinance assimilated the law of this Island to the law of England. FUHi'iiANi: OF ri'TrRK See S.viiK : iisdem verbis. Wk.NTWOUTII v. Jlu.MI'llIlEY ' lENSATio?i. Allen v. Kemble ' 167. A drawer and an endorser of a bill of exchange are deemed sureties for the acceptor, and therefore entitled to oppose in compensation against their eiidorsarion a liquid debt of the same amount due from the creditor to his principal. conntrvction of The Bank of British North America v. Cuvillier ' 168. A recital in a deed of warranty indicating the motive which prompted the execution of the deed, does not control the engagement, when such engagement is general and more extensive than the limited object for which it is supposed to be given. Loud Cranworth, p. 200 : — In this cauMC the Judges of the court in Ctuiiula a]>j)car to liavo given very greiit attention to tlie Hubjeet, and had it not been that we have had an t)pportunity of considering the matter in course of the evening, and also had the great atlvan- tage of having before us in ])rint a full report of all the I'easons of the Judges, we might luive thought it due to them antl to ourselves to have taken a little time to consider what the course was that we should pursue, but liaving had all these advantiigcs and having come to a clear opinion upon the subject, we inn e thought it right not to delay tlie parties in the announcing of our Judgment. The first thing which I notice is this ; 1 believe we have cume clearl}' to the conclusion that the whole question turns iq)on the construction ot this instrument, and if it turns upon that, the facts in truth, can hardly lie said to be in any respect, in dis])Ute. The question is, what is the meaning of this deed of Guarantee ? In the last judg- ment the Chief Justice La Fontaine, (giving his reasons in French,) says, " La question de rctt'et du cautionnement est une question qui " doit Stre decid^e \)i\v le droit Fran9ais exclusivement." We, oarh' 1 Natal, 1884 .June 25, L. II. IX Appeal casc3 715. 2 British Guinea, 1848 April 13, G Mooie 314. 3 Lower Canada, 1861 Feb. 6, XIV Moore 187. SURETYSHIP VJil cauuot be cutes the uuces the also the itiou and attorney ; ;h express \.EMBLE ^ hauge are entitled to II a liquid ;or to his VILLIER •' he motivt' lot control iiieral and t'hich it is of the court the Hubjec't, ' coiiskloring front inlvan- i reasons of to ourHolves waH that \ve liaviiisi; eoine right not to . The first learly to the i.struction ot n truth, can question is, le last judg- in French,) question qui ' We, oarlv CO^MTKVC'TIOSi OF in the argument, asked whether it was contended that there was any dilterenco between the French law on this subject and the English law, but it was answered that there was not, and indeed it was pretty certain that tliere could not be ; therefore the question, what was the meaning of tiiis deed, would be the same whether it was to be decided by French law, or by English law. Now the majority of the Judges have considered that the eti'ect of this guarantee, though general in its terms, is to be limited by tlie recital, which controls in their opinion, that generality; and the first and main question is whether that is the right view of the case or not, and with all due deference to the learned Judges, and having given the fullest attention to their reasons, which arc very ably and briefly put forth, we have come to the cunolusion that that is an erroneous view of this deed. We think that whatever limited motive there might be, the way that limited motive was to bo accomplished was by a general engagement, and if so it often happens that the engagement which is given is more extensive than is absolutely necessary for the Hniited object ibr which it was supposed to bo given, but it does not follow therefrom that the general engagement is necessarily to bo cut down. Jn this case wo think, attending to all the language of the deed, and that what is stated in the recital is merely stated as the motive, not as anything which is to control what is afterwards done, but merely as the motive for what is done, it is impossible to cut down the effect of the guarantee itself. I must confess that going much beyond that, supposing it had been said in tlio deed to have been a guarantee for the objects " hereinbefore recited ", I should have felt very reluctant to say that the motive was not equally a motive which included the object for which this money was advanced. It was advanced to enable Maurice Cuvillier to carry on trade and commerce at Montreal and elsewhere if lie should think tit. Well now, for what purpose was it advanced ? It was iidvancod for the ]nirpose of enabling him to continue the trade, which, as I collect from the evidence, he was then carrying on in partnership with his firm. I suppose he did not quite understand what his relations exactly were ; the father had died, and the brother was absent, with whom alone until his death, or soon afterwards ho carried on business, but he afterwards took in other partners. Then what was there in the deed which was to confine that trading to the object of carrying cm trade as a joint trader ; nothing in the world that I can discover. The cases in which there is a guarantee with a firm and that guarantee has been aftected or annihilated by afterwards the firm becoming a dift'crent firm, really have no bearing upon this case. The question here is not whether he carried on trade alone, or with others, but whether he carried on any trade and comm>jrco, and if he did carry on trade and commerce, the advance for that purpose, even if that were necessary or material to the action sufficiently answer the object of the guarantee, whether he carried on trade abrne or not. On this short ground — that the whole question turns on the R 792 SUEKTYSIIIP CONSTRl'CTIOM OF const ructi(jn ol'tho inHtnimcnt, and that in truth there is nothing in the recital which controls the ctfect of the engat:;ement, we think the judgment ought to have been lor the Ajipellants, the Plaintitl's Itelow, unci consequently that the Judgment of the court in Canada must be reversed. Lindsay v. Oriental Bank ' 169. Where a bond and mortgage are contained in one instrument, the power to create the one security cannot have any influence in determining the validity or invalidity of the proceedings under the other, as although comprised in the same instrument, they are different securities, leading to different results, and capable of being enforced by different modes of proceeding. DISCHARGE OF THE SURETY. Bellinqiiam v. Freer '' 170. According to the old law of France, when the dealing between the creditor and his debtor, amounts to actual, though but pro tempore payment, as when the creditor draws bills of exchange on the principal debtor which are accepted or receives promissory notes, the surety being deprived of the right of suing the principal debtor, is dis- charged, but if such dealing operates simply as a prolong- ation of time for the payment of the debt, as the surety is not precluded by such dealing, from suing the principal for his indemnity, he is not discharged. Hon. Thomas Erskine. p. 344 : — The remaining and most mate- rial question, is whether Bedinyham Wallis, by taking the ac- ceptances, c'ischarged JVoah Freer, the surety, from his liability to ])ay the balance? Tliis question must be decided by the principles of the French law, which differs, in some respects, from the law of England. There is one rule, however, which is equally recognized by both, namely, that the surety ought not to suffer by the arrangement which has taken place between the creditor and the principal debtor : Nemo ex alter ius facto pragr atari debet. But the condition of the surety may be differently affected by the same circumstances under the one law and under the other. Pothier, Obligations, part. 2, cJiap. G, sec. 7, art. 2, JVo. 442. In these cases, a surety under the English law, would have no such power to protect himself. It has, therefore, been very fairly argued, that a surety, under the French law, is not entitled to the same indulgent consideration as a surety under the English law. He cannot, indeed, in all cases, proceed against the principal debtor for his own indemnity, before he has paid the debt ; but he may do so if 1 Ooylon, 18G0 June 23, III Lnw Times .V. S. U8. 2 Lower Canncia, 1837 .May IG, I Moore .333. SURETYSHIP 793 nolhing in think the irt'8 below, laila must Bank ' d in one y cannot nvalidity omprised s, leading breed by Freer '' le dealing to actual, creditor vhich are ty being tor, is dis- prolong- surety is inoipal for most mate- ing the ac- i liability to the French j;land. ed by both, rrangcment ipaldebtor : ctetl by the ler. Pothier, lid have no very I'airly titled to the ish law. He il debtor for may do ho if niNCIIARUE OF THE NVRETY, he perceives that the debtor in falling into embarrassment, though he has not ptiid, or been called upon to ])ay. Macdonald v. Bell ' 171. By the Civil Law sureties are not discharged I'rom their liability to satisfy the creditor, although the })enefit of a hypothec given by the debtor is lost by the negligence of the creditor to enforce his demands. No authorities in the Roman, Duch or Civil Law were found by their Lordships to satisfy them that the sureties were exonerated. This case was decided on the authority of Pothier,, lib. 46, tit. 1, s, i), article 2, s. 47, and same author. Obligations, p. 3, c. 1, art. 6, s. 2. The Bank of Bengal v. Radakissen Mitter ' 172. A firm having dealing with the bank of Bengal, gave it as collateral security, for the discounting of different bills of exchange amongst them, five bills drawn by respondent, on accommodation paper for the firm, various quantities of copper with the condition that in default of payment within the time specified, the bank might dispose of the copper by sale to reimburse themselves the principal and interest due thereon. The firm having become insolvent, the bills were dishonoured, but before the disposing of the securities by the bank, the assigne of the firm redeemed the copper by paying the bank in full, except, however, the five bills drawn by the respondent. In an action by the bank against the respondent, it was held, that the redemption of the securities was a sale within the meaning of the above con- dition, and that this sale did not operate as a release to respon- dent, as surety for the five bills, the copper having been given to apply to all debts for the reimbursement of the bank generally. l^LACK V. The Ottoman Ba.nk ' 173. A surety sued upon a bond given to a bank as gua- rantee, for the due discharge of certain specified services by their manager and cashier, cannot set forth as a plea the negligence and want of due care on the part of the bank, in not properly checking and examining the accounts ; this duty on the part of the bank not being expressed as obliga- tory on the principals in the bond, and not being implied in laAV. The Rkjut Hon. Loku Kinosdown, ]». 483 : — The ])i-inciples 1 Cupe of Good Hope, 1840 Dec. 15, III .Moore 315. 2 Calcutta, 1842 June 28, IV Moore 140. 3 C. C. Constautinople, 18G2 July 3, XV Moore 472. ,t=w;; ii 79-4 SURETYSHIP niM HAKGE OF THE SVBETY. ap])liciiblo to the oaHCHcein to bo quite established l)y the authorities referred to in the arirumcnt : The Trent Navigation Company v. JIarley (10 East, 34) ; Mactaggart v. Watson (3 Ci. & Fin. 525) ; Bawsonv. Lawes (1 Kay, 280) ; to which may be added the authority of Lord Eldon in the cases oi Samuel v. Howarth (3 Mer. 278), and Eyre wEcerett (2 Iluss. 381) ; and of Lord Cottenham in Creighton v. liankin (7 CI. & Fin. 3-16). From these cases it is clear that, upon the point now in dispute, the rule at law and in equity is the same, that the mere passive inactivity of the person to .whom the i^uarantce is j^iven, his neglect to call the principal debtor to account in reasonable time, and to enforce payment against him, does not discharge the surety ; that there must be some positive act done by him to the prejudice of the surety, or such degree of negligence as, in the language of Vice- Chancellor Wood in Dawson v. Lawes, "' to imply connivance and amount to fraud." The surety guarantees the honesty of the person employed, and is not entitled to be relieved from his obligation because the cmjjloycr fails to use all the means in his power to guard against the conse- quences of dishonesty. The cases referred to upon bills of exchange turn upon a different principle, viz., that, by mercantile usage, a contract is implied by the holder to give notice of dishimor, within a certain time, to the drawer or mdorser who stands in the situation of surety for the accei)tor. DeBrettes v. Goodman ' 174. At a juditial sale of real estate iu St. Lucia, a man actiug as attorney for another man and for his wife, both absent from the island, purchased an estate on their behalf. The sale was made by three trustees, two of them being resident iu England, the third, at St. Lucia, acting under a power of attorney, and the respondent became party to this sale as surety for the buyers. By the deed of arrangement for the purchase and by the notarial deed, it was stipulated that the sale should be co ifirmed and ratified by the two trustees resident in England Avithin six months, whii-h was duly done. Default, having been made in the payment of one of the instalments, the trustees brought an action against the appellant as surety for the amount of this instalment. Bvit it appeared in the evidence that the power of attorney, to the purchaser was not from the man and his wife, but from the man alone, and contained no authority from his wife. The Judicial Committee held, that the surety was not liable, as the sale professed to be to a man and his wife by the three tritstees, while in fact the sale was to the hus])and 1 Saint liUcia, 1855 June 19, IX .Moore 460. SUEETYSillP 795 uthorilies mpany v. in. 525) ; authority 278), and ■eighton v. n dispute, paHHivo 118 neglect ne, and to ety ; that lice of the of Vice- vance and ycd, and Ik cmi)loyer the eonse- a different implied by me, to the ity for the OODMAN ' )ia, a man wife, both eir bohalf. lem beiug g under a rty to this •augemeut stipulated y the two A-^hii-h was ivment of lou against nstalment. ;' attorney, B wife, but srity from y was not lis wife by le hus}>aud DISCHARGE OF THE NVRETY. only, and as such was an ineffectual and void sale and the surety was discharged. Ward v. Nation at. IUnk of New Zealand ' 175. A surety is discharged by the creditor dealing with the principal or with a co-surety in a manner at variance with the contract, the performance of which the surety had guaranteed. For instance, a surety is discharged by the creditor giving time to the principal, even though the surety may not be injured, and may even l>e Ijenelited therebj'^ Samuel v. Hoioartk 3 Mer. 272 ; Holme v. Brunsldll ZQ. B. D. 494 ; PuUilz v. Everett, 1 Q. B. D. GO!). 176. On the same principle, when the creditor releases one of two or more sureties who have contracted jointly and severally, the others are discharged, the joint suretyship of the others being part of the consideration of the contract of each. Boxer v. Cox, 4 Beuv. 370. 177. But where it is no part of the contract of the surety, that other persons shall join in it, in other words, where he contracts only severally, the creditor does not break that contract by releasing another several surety, and the surety cannot therefore claim to be released on the ground of breach of contract, although he is entitled to contribution against other several sureties. Deriag v. Lord Winclielsea, 1 Cox, 318 ; Crai/lhornev. Svinburne, 14 T'ie.s. 160 ; Sliiiiiin- v. Forrester, 3 Bti. 590 ; Pearl v. Deacon, 24 Bea. 186 ; 1 de G. A* J- 461. Taylor et al. v. Bank ok New Soitii Wales '' 178. The appellants were sureties jointly and severally to the respondents to the amoiint of £3500, for money ad- vanced to the priiicipal debtor, who as a collateral security mortgaged in favour of respondents a stock of about 6500 sheep. The bank having sold 2500 sheep, without the know- ledge of the appellants, and the purchaser not having paid the price ofthe sale, the appellants claimed to be discharged from all their liabilities or at least to the extent of i;810 the price of the sale of the 2500 sheep, as they had been illegally deprived of the beneiit of the collateral security given by the princii)al debtor upon which they were entitled to rely for their protection. The Judicial Committee held, that the sale of these sheep from time to time must have been contemplated by the 1 Xew /paland, 1883 July 11, \.. R. VIII Appeal cases 7')5. 2 New South Wales, 18SG Juae 25, L. li., XI Appeal Cases 396. ffv 79G SURETYSHIP DIHt'lIAKOE OF THE NCRETY. deed of mortgage aud that the t^nTeties were uot discharged by the sale. IMPUTATION, iiee Imputation : iisdem verbis. IMPLIED. Cherry et al. v. The Colonial Bank op Australasia ' 1*70. Whore two directors of a joiut stock compauy, without any authority from the rest of the directors or the majority of them, write a letter to the company's bankers certifying that their manager had the authority to draw cheques for the company, and upon the faith of this letter, the bank honoured the manager's cheques, although the ac- count of the company was overdrawn, the two directors were held personally liable, this letter being an implied warranty on their part. SUMMARY TAXATION See A8SESS.MENT, Leoislati-be : legislative powers : iisdem verbis- TEMPERAXCE Leoislation on See LefiisLATURE : legislative powers : endem verba, licence. TENDER See Pay.ment : eodem verbo. TESTAMENTARY EXECUTOR Advances MADE TO Compromise by DBBTOU AS Liability of Powers ok Removal of Rbmuneration ok Sale of immoveakle on Sals by See Sale : iisdem verbis. Substitution op See Testamen- tary execdtors : powers 0/ PAGES TOWAGE Performance of contract 803 Whicn due 804 TRADE MARK Infrinobment of 804 TRANSACTION Execution of 806 Grounds for annulling.. 807 See Attorney : powers of atlorneg ad litem. 707 TRUSTEE 797 See TtSTAMENTARY EXECUTOR 7ftR TURNPIKE ROADS 800 803 HO?. SOH Trustee for See Highway ; iisdem verbis. TUTORSHIP TiFr.APv i."RnM WAUI) 814 Religion and status of minor CIIILUnEN 1 See Minority. 814 1 Victoria, 1869 July 7, VI .Moore N. S. 235. .barged LASIA ' without ajority of ertiiying cheques tter, the the ac- di rectors L implied PACES 803 804 K 804 )N 806 SOT attorney OH ADS ' ; iisdem IF MINOR 814 814 TAXATION See Assessment, Legislature : legislative potvers ; iisdem verbis. TEMPERANCE I.EOISI.ATION ON Ses Lecsislature : legislative jmi'ers : eodem verbo, licence. TENDER See Payment : eodem verbo. TESTAMENTARY EXECUTOR advances made to Gavin' v. Hadden ' 1. Moneys 6owaA'rfe advanced to an executor as adminis- trator for the purposes of the estate, may be rei^overed by a suit against him in his representative character, and the judgment obtained may be executed against the testator's estate. 2. If a creditor of a person who happens to be executor, by colluding with such executor, dishonestly obtains .judg- ment and execution against the assets, when his claim was only against the executor personally, such a transaction can be set aside. 3. In Ceylon, the rights of an executor are the same as in England, except that they are extended to immoveable as well as moveable property. €OnPRO.niSE BY De Cordova v. De Cordova ' 4. Where a cc-execator owed the estate large sums of money and was, at the same time, a legatee for a less amount, and an agreement was entered into between all the executors that the amount of the legacy with a certain sum paid in cash should be set off" against a like amount of his debt, a subsequent compromise with all his creditors, including the co-executors, by which a composition was effected at five shillings in the pound, reviving the full amount of the debt and of the legacy, was held to be null an void ; the first agreement was held to be binding and the composition, a breach of the trust on the part of the co-executors. 1 Oeyloii, 1871 July 10, VIII Moore X. S. 90. 2 Jamaica, 1879 July 26, L. R. IV Appeal Cases 692. II 798 TKSTAMKXTARY EXECUTOR COMPROMIMi: nY 5. An executor oanuot compromise a debt due from him- self to the estate. Cooke v. Collingridge, 1 Jac. 607 ; ex parte haven 6, Tcs. 625. LuKi) Edo.v, ]). 70;]; — One of'tlio mont firmly cstal)liislu'(l riilos is, that porHoiis (loalinro. ])erty, or if the estate has been injured, by their not havinj; sooner administerod it, those who take tluit account will take cure that the resjiondents make ;;ood the loss. That is all that Justice requires from them. There is no colour for sayin;^ that they oiij^lit to be obliuied to pay all the debts, whatever may be their amount, and however unequal tho estate of the deceased may be to tlie discharge of them. By the Scotch law. if a man acts as a vicious intromitter, that is, if without any ])retence for actini; as executor, he takes upon him- Helf tlie general dis])08ition of the deceased property, he must pay all his debts. Lord Stair, in Ids Institutes, says : "This is ])eculiar to this, and no other nation." I believe that learned writer is correct without assertion. We know it is not tho law of England, for an executor de son tort (althougli lie without any pretence of authority interferes with the assets of the deceased j)erson),is called ujion, and is only answerable to creditors to the extent of property that has come to his hands. But the res))ondents were not vicious intromit- milters; they were authorized to act iiy the will ofValz, and in such a case, even in Scotland, where the law is more severe against such person than in any other C(;>intiy, they would only have been liable to the amount of deceased's jtroperty. Lahouciiere v. Ti;ppER ' 10. An executor of a trader caryiug on the trade after the latter's death, is personally liable lor all the debts contracted in the trade after the testator's death. 11. The executor of a deceased shareholder in a Joint stock- company, was held not liable to make good out of his testator's assets, debts contracted by the company subsequently to the testator's death, though the shares were registered in the executor's name, and he received the dividends in his cha- racter of executor, the debts due at his death having been subsequently dis*;harged by the company. POWERS OF Stuart v. Norto.n ' 12. According to Roman-Dutch law, testamentary execu- tors may name substitutes to represent them. 13. So where an executor resident in England, appointed with other executors and devisees in trust resident in Bri- 1 lle3 of Man, 1857 June 17, XI Moore 198. 2 Britiali Guinea, 1860 Nov. 29, XIV Moore 17 TESTAMKNTAEY EXKCUTOR 801 minifltriition to the liiibi- ordcrod an •t of the pro- iivin^ Hooner arc that the ico rcquircH ' ouf^ht to be amount, and he discharge itter, that in, es upon him- murtt pay all H ])eculiar to ter in correct ifi;land, for an ol' authority led u])on, and Bi-ty that has ous intrnmit- Valz, and in livore against i\ly have been . Tli'PER ' ide after the ts contracted 1 joint stock- his testator's ixeutly to the tered in the in his cha- laviug been -. Norton ' jntary execu- id, appointed iident in Bri- POWI'.IIN OF tish (Itiiana, to administer propi-rty sitiiute in the colony, which appointment was made with the lollowing chiuse in the will " without the powers of assumption, substitution andsurrogation," may, notwithstanding, appoint an attorney to act in the colony on his behalf in matters of discretion, as well as others mutters connected with trusts. TiiK Loud JirsTicK Knioiit liUL'CE, p. IW : — [t is said tiiat according to the English hiw, a Irustoo cannot delegate discretioM. cannot act by another in a matter of discretion ; but even in the i'lnglish law (hat general rule may be open to exception, and their Lordslii))s are not at the present moment ]»re|>ared to say, that a trustee in Hngland under an English will, may not effectually appoint an attorney to act in matters of discretion connected with the trust in a Colony or any Foreign country, Daniel v. Thotman ' 14. A testator named an executor with the power to manage the property and to apply the proiits in payment of the expenses of execnting the trtists ; the executors were given the right to raise in aid of the personal estate, not specilically bequeathed, so mui'h money as should be re- quired to satisfy fixueral expenses and debts, and the lions and charges on the real estate. A merchant, tinder a verbal agreement made advances to the executor to clear the estate from the charges and to satisfy legacies and annuities given by the will. The executor having misappropriated a ])ortiou of the advances made to him, a suit was instituted for the administration of the estate, and the court disallowed all advances which the creditor could not prove to have been applied for the benefit of the Testator's estate. The Judicial Committee reviewing this judgment held, that the executor having the power under the will to bind the future profits of the estate, for advances made for the management of the estate, and having sufficiently exercised that power, the creditor consignee was not bound to see to the application of the advances made by him. The Lord Justice Turner, p. 151 : — Their Lordships collcot from the order under ap])eal, that in the opinion of the Court in Earl ladoes, the appellant was bound to see to the application of the moneys advanced by liim under the agreement ; but, however this may have been in the view which the Court in Barbadoos took of the case, their Lordships are of opinion, that as the case really stands no such obligation rested on the appellant. The moneys advanced were not meant nor intented to be applied to any defined or special purpose. They were of necessity to bo applied at the discretion of the Trustee to whom they were advanced. To hold that the appel- 1 Biirbadoes, 1863 Feb. 17, 1 Mooie X. S. US. 51 ^jf ^^ -r -lUUMMUhiMWI '0 808 TKSTAM ENTA J{ Y K X KC UTOll powKKN or IiuiI'h firm woro l)Oijn(l to hoc to tlio ap]ili(:iitioii of thoHo lulvuncoB woiihl in cflVit rondor it iinpoHHiliUt that any ikIvuiicoh could lie miwle. Tho |»rin(!i|>io wliich govtirnH tlio casoH an to tho oliligation olHooing to tlio a])|)ii(!ation ol' money aimlicablo to tlic payment oi'dobtH HOomH to thoir Lurdbhiiju to Huttlo tfiiH uuuHtion. Underwooii v. I'enninoton ' 15. All Act oiTarliameut was pasHcd giving to certain trus- tees under a will the power to sell the immoveables of the estate, and enacting that " the legal estate in the lands and " hereditaments devised by the Avill df the sti'l James " Underwood shall for the purposes of this Act vest in " certain persons appointed trustees l)y the will. Another statute was passed permitting the appointment of two other trustees and giving them the same right. Held, (hat the trustees had (he right, under these statutes, not only to sell the lauds, but to maintain an action in ejectment. HaKDINU v. lIoWKI.I. ' ]»!. Under the Act of 1872, in Vialv ' 21. The commission referred to in the above case of Grant v. Campbell is paid only out of the proceeds of the sale of an estate, that is only on receipts and payments of the money ; and it must be a sale made in the island of .Tanuiica. NAI.K OF I.nMOVIMni.E ON Hi LI.KN v. JiECKETT * 22. The immoveables of a deceased man do not pass to his executor and are not in his hands legal assets, so that they may be seized upon him and sold for a debt ol' the testator, according to the law in force in Victoria, although in this colony real estate is liable for simple contract debt, as lands are liable in Jllngland for bond and especially delits sAi,K KY See 8ale : iisdem verbis. MUBNTiTiJTioN OF Sec TESTAMENTARY ExECUTOR : pimen of TOWAGE PERFORMANCB OF CONTRACT. Ward v. MacCoukill ' 23. A steamboat engaged to tow a vessel for a fixed sum, does not warrant the vessel against all risks, but, inlaAV, she 1 Cape of Good Hope, 1884 Marcli 22, U. R. IX Appeal Cases H71. 2 Jamaica, 1816 Sept. 23, 1 Moore 43. 3 Jamaica, 1828 May 17, 1 Moore 51. 4 Victoria, 1863 Juno 29, 1 .Moore N. S. 223. 5 Admiralty, 1801 August 1, IV Law Times N. S. 810. 804 TOWAGE PKRFORMANCE 4»F CONTRACT. is only obliged to use her best endeavours, rorapeteut skill, and a reasonably siiilicient crev/, tackle, and ecivxipments to t'uilill her engagement. If iiul'oreseen difficiilties occur, such as the breaking of the ship's hawser, she is not relieved from doing her best. 24. If a sudden violence of wind or waves puts the ship iu tow in danger, and the tug incurs risks and performs duties not within the scope of the original engagement, then the tug is entitled to additional remuneration for additional services, if the vessel be saved, and may claim as a salvor instead of being restricted to the sum stipulated for towage. The towage contract is then sui)erseded by the right to salvage, except when the danger is attributa!)le to the fault of the tug. ^fe Salvaoe. wiiew dvb. The General Steam Navioation Company v. .Tisusey. The " Edward Hawkins " ' 25. Where a steamer made a" agreement for a fixed sum, to tow a disabled steam vecjel to her destination, and she accordingly towed the vessel for some hours, but in lionsequeuce of a gale causing the breaking of the hawser, left the vessel in a position of considerable danger. It was held, that as the steam vessel was only saved by her own exertions, the steamer was not entitled to rei;over against the steam vessel under the unperiormcd contract. INFRIXOE.HKNT OF TRADE MARK Somkkvili.e v. Schemhki ' 26. Even where there is no legislation on trade marks, if a person choose one and employ it in the market to indicate goods manufactured by himseli, he becomes proprietor of il, and has an exclusive right to use it alone, and no one else can make use of the same mark for the same class of goods. Lord Watson, ]>. 454 : — In ^Malta there is no law or slatuto, OHtabliHhini^ tlie rogistration of trudo markH, and no authority cxistH from whom an oxcluwive right to a particular trade mark can lio oljtained. The rights of tlie parties to this cause are theretbi'e dopeiident upor *he general principles of the commercial law, some ol'wliich are referred tc in the judgment of the Court of Commerce. These principles have been very fully illustrated and exjilained by the House of Lords in the following cases : Leather Cloth Company Limited v. American Leatlier Cloth Gjmpany Limited, 12 L. T. Jtep. I Admiralty. ISryi July 10. XV Moore 486. ■i Miilla, 1877 .March 5, LVl Law Tiiues N. S. 454. TllADE MAEK 806 tent skill, ipments to ios occvir, ot relieved s the ship L performs gagemeut, iration for ly claim as stipulated ded by the ibutable to mSEY. AWKINS " ' fixed sum, lation, and urs, but in the hawser, Ter. It was by her own 3ver against •t. ScHEMHltl ' de marks, it' t to indicate aprietor of it, . no one else ass of goods. vw or slatuto, ithority exists mark can bo arc thorofoi'o cial law, some of Commerce. I exj)lained by Cloth Company 12 L. T. Bep. ISrFKISrUEMESIT OF N. S. 742; 11 H. L. Car. 538 ; Wotherspoon v. Carrie 27 L. T. Rep. N. a. 398 , L. E.5 11. of L. 508 ; Johnston & Co. v. Orr-Emng (t- Co., 46 L. T. Rep. K i>. 21(5 ; 7 Appeal Cases 211). all of whicli were ea.ses which aroHC bel'ore the panHing of the tirnt J3ritish Trade Mark EegJHtration Act in the year 1875. Jn tlie lirHt ofthcHe eascH, the interest wl)ieh a merchant or manufacturer has in the trade mark which he uses was thus defined by Lord Cramcorth, 11 11. L. Cas. pp. 533-34. "The ritjht, which a manufacturer has in his trade mark is the exclusive right to use it for the purpose of iiulieating where, ()!• by whom, or at what manufactory, the article to which it is affixed was manufactured." As soon, therefore, as a trade marie has been so employed in the market as to indicate to ])urchasers that the goods to Avhich it is attached are the manufacture of a particular firm, it becomes to tliat extent the exclusive j)roj)erty of the tirm ; and no one else has a right to cojty it, or even to ap|jropriate any part of it, if by such ai)propriation unwary ]iurchasers maybe induced to believe that they are getting goods winch were made by the tirm to whom the trade mark belongs. Had it not been for tlie views expressed by the Court of Apjieal in giving judgment it would liardly have been necessary for their Lordships to observe that tJie acquisition of an exclusive right to a mark or name in connection with a ])ai'ticular article of commerce cannot entitlethe ownercjf that right to j)rohibit the use by others of such ir arkor name in C(.)nnoctioji with go(jds of a totally ditferent character ; ami that such use by others can as little intertere with his acquisition of the right, in the present case it is beyond dispute that the cigarettes made by the aj)])ellant's tirm were favoui'aljly known in tlie markets where they were sold, under the appellation of" Kaisar-l-IIind." The use of the term by others as a name for ships, or as a trade mark for liats soap, or pickles, couKl not im])ede their acquisition of an exclusive right to use it as trade mark for their cigarettes. The evidence given i)y Kinaldo Perini, regarding tiie use of the term as a trade mark tor cigai'cttes, does not appear to their Lordships to be sufficient to cut down the appellant's right ; it is vague and indetinite both as to time, place, and persons ; and it is hardly creditable that during the whole ])eriod of his I'esideiicc^ in London the name" Kaisar-1-IIind,"' which had its origin in the Proclamation of 1877, following upon the Act 3'J Vict. c. 10, should have been in use. Besides, his evidence is at variance with the testimony of Nicholas Coo]ier Morris, who dealt in cigarettes in London, and must jiresumably liave known what was sold in the Lonibjii market. The real question, therefore, comes to be whether the respondents have infringed the api)ellant's exclusive right ; and that question, as Lord Kingsdown said in the Leather Cloth Company's case 1 1 ll.L.,(yas. 53!t, de])ends upon " how far tlu' detendant's trade mai'k bears such a resemblance to that of tlie plaintirt'sas U) be calculated to deceive in- cautious purchasers. U]>on this part of the case their Lordships entertain no doubt. Schembri and Xavarro ])Ut up their cigarettes for sale in boxes of tlie same size and shape with those used in their trade, by the apjiellant's tirm, and the device on the lid of each box is an exact copy of thai lirm's label, with one or twj colourable; 806 TRADE MARK INFBINGEIHENT OF variations. Wiiiist retaining all the essential features of the label the respondents have introduced certain differentiae which may very fairly bo described in the language used by Lord Blackburn ill Johnston & Company v. Orr-Ewimj d- Company : " These are (litlcrenees which might prevent ])urchaseis being deceived. I do not think they are such as to prevent its being likely that they would bo deceived. In that state of the facts, it is not necessary to the a|)])ellant'8 success that the respcmdent should have intended to mislead ; but their Lordships agree with the judge of the Court of Commerce in thinking that it is impossible to acquit them of that intention. It appears to their Lordships that the decree of the Court of Commerce is couched in terms somewhat too wide, and that it ought to have been confined to an injunction such as the English courts were in use to grant in similar cases. Their Lordships will accordingly advise Her Majesty to reverse the judgment of the Court of Appeal, and also to reverse the judgment of the Court of Commerce, except in so far as it reserves the decision of the appel- lant's second claim ; and to restrain the respondents or either of them from using the label or device upon the lid of (Sc/iem6n and Navarro's boxes produced in process, and referred to in the judg- ment of the Court of Commerce, or any similar label or device ; and also from using the name or trade mark " Kaisar-I-lIind " in connection with any cigarettes other than those manufactured by the aj)pellant's firm, so as to represent or induce the belief that any such cigarettes were manufactured by the said firm. Their Lordshi])S will also ailvise Her Majesty that the respondent Paolo Schembri, who. .IS representing his firm to Sehcmbri and Navarro, ajipears to have taken the leading jjart in this litigation, ought to pay the costs of the appellant in both courts below. TRANSACTION eXECDTION OF King v. Pinsoneault ' 27. When a transaction has been agreed upon between two parties to a suit, one of them may sue in execution of the transaction before he has discontinued the first action ; it is suflicient for him to otl'er to discontinue it as soon as the other w^ill have execxited the transaction. Sir EoBERT P. Collier, p. 258: — The actions were not for the same cause. The first action w;is brought against Pinscmeault and Hamilton, for the purpose of setting aside a deed of 1839, and ob- taining an account of the full amount (*f the sum received bj' Pin- soneault with payment thereof ; or, in default of such account and Iayment for danuiges. The seconot they would bo essary to the ; intended to f the Court of them of that of the Court .e, and that it aw the EngUsh LordKhip« will gment of the [if the Court of n of the appel- ts or either of f Schembri and to in the judg- ibcl or device ; .8ar-l-Hind " in anufactured by belief that any rheir Lord8hi])s Paolo Schembri, ^arro, appears to to pay the cost* PiNSONEAULT ' upou between xei'utiou of the ■st actiou ; it is as soon as the vere not for the : Pins(jneault and . of 1839, and ob- rcceivcd by Pin- buch account and brou.v^lit agiiW'-'t 0, and not only t()_ the settlement of lateral to the first EXECUTION OF action. Nor was the disconti'iuanco of the first action a condition j>recedent under the agreement to enforcing that agreement by action. The performance by the i)arties of their parts of 1 lie agree- ment respectively, were, in their Lordship's opinion, concurrent con- ditions, and this being so, it was sufScient for the plaintiff to aver in his declaration that he had been and was reaily and willing and that he offered to perform his part, viz., discontinuance of the first action on the defendant performing his part of the agreement. Tlieir Lord- ships are further of o])inion that he has not made a step inconsistent with this averment, and they find that it is proved in fact. Although the form of procedure differs in England and Canada, some observations of the vice-chancellor Turner in Askey v. Welling- ton (9 Hare, 65) are applicable in principle and in reason to the present suit. The vice-chancellor observed that some cases which ho referred to " appear to establish that, at least in cases where the com- promise goes beyond the ordinary range of the court in the existing suit, and the right to enforce the agreement in that suit is disputed, the prnper course of proceeding for enforcing it is by liiil for specific performance, and not by motion or petition in the origiiuil suit to stay the proceedings, and I think that a fortiori, this must Ijc the case where the agreement itself is disputed," It may be collected that the putting an end to the original suit in that case was not deemed a condition precedent to instituting the second. It becomes, therefore, unnecessary to decide whether or not the plaintiff could have enforced the "' transaction " in the first action, or whether, if he could, he has taken the ])roper steps for doing so. Foi" these reasons their Lordships are of opinion that tiie court of Queen's Bench were wrong in declining to give judgment on this validity of the '' transaction" ; it becomes, therefore, their Lordships' duty to determine this question, and to give the judgment which ought to have been given Ijy the court of Queen's Bench. Tlie obje'.'tion that the '' transaction " was not intended to be final, but was sub|'3Ct to some act of confirmation by the court, is not noticed by ilr. Justice Beaudry, who seems to have thouglit his . ading on the want of authority sufficient to establish the third plea and to dispose of the suit. Their Lordships have no doubt that it was intended to be final. See the remarks of their Lordships on the validity of the transaction : Attorneys : powers of attorneys ad litem. OKOiU3rn,s for a>'xi;l,mx« Trioqe v. L.vv.vll^k ' 28. The term " trausactiou " of the old French law, Avhich is equivalent to a compromise in English law, is an agree- ment to put an end to disputes, and to terminate and avoid litigation ; and, in such cases, the consideration which each party receives is the settlement of the disputes, the real consideration being, not the sacrifice of the right, but the abandonment of the claim ; and it is no objection to the 1 Lower Uuuaiftt, 1802 Dec. 5, XV Mo )ie 270. 808 TRANSACTION UROC.N'DS FOR ANKULLINO Kolidity of such a contract, that the right was really iu one of the parties only. 29. Such contract, like any other, may be set aside for dol, fraiid and error according to the principles of the civil law. 3i'. Oil this subject, the French law, the English kiAV and the Scotch law are similar and based on the civil law. 31. A deed of transaction was passed between the appel- lant and the respondent, for the purpose of compromising certain disputes which had arisen between them relative to a certain mill-dam erected by the respondent in and across a branch of the river Nicolet. The appellant took proceed- ing to enforce this agreement, but Lavallee resisted and disputed the validity of the deed on the groixnds that he was induced to enter into this transaction by fraud on the part of appellant, and in ignorance of material facts of his rights, and without any consideration for it. The Judicial Committee held, that a transaction cannot be vitiated for error of law, but it may be set aside for error of fact, if the error is of such a character that it must be considered as the determining motive of the parties in entering into the agreement. The transaction in this case was maintained. Lord Kingsuown, p. 292: —But this is not the nature of (he agreement ; it is quite of a difl'erent character. It falls umler the head of what in French law is ternaed a " transaction," and in Englisli a compromise. It is an agreement to put an end to dis])uleH, and to terminate and avoid litigation, and in such cases the considera- tion which each party receives is the settlement of the dispute ; the real consideration is not the sacrifice of a right, but the abandonment of a claim. The French law, to which we must look for the decision of this case ado))ts the definition of the civil law and it is expressed by Domat, " Des Transactions." vol. 1, p. 341, in these words : — " La transaction est mie convention entre deux ou plusicurs iioJ'sonnes. qui, ])0ur ])r(5venir ou terminer un proces, i-^glenl leur dili'erence de grtSa'grede la maniere tlont ils C(mviennent, et que chacun d'tux pr<5fc're h, I'esjidrance de gagncr jointe au peril de perdrc." It is no objection to the validity of such a compromise that the right was really in one of the parties only. If two pers(H's claim ailversely to each othei" the inheritance of a deco'ised ])erson, and in order to avoid litigation agree to divide the inheritimce between them, it is no ground for setting aside the agree- ment that one only was the heir, and that the other, therefore, gave up no light, which he really ])ossessed. The consideration which Lavallee agreed to take for this grant was (he abandonment by Chandler of all attemjits (o disturb him in (he enjoyment of his mill and diim, and (he agreemen( not to erect within certain limits new mills; and this consideration he ac(ually received. There is, there- lure, clearly no reason for annulling this agreement on the ground lly lu one de for dol, civil law. 1 la^\' aud law. the appel- promisiug relative to aud across Iv proceed- isted and ds that he lud on the acts oi' his on cannot it aside for lat it must parties iu n this case aturc of (he Is under the ion," and in I to di.sjmtCH, he coiifsidcra- dis])ute ; the ibandonment the decision is expressed 'ords ; — " La 'rt jjersonnes, diHereiiee do :;haeun d'cux •e." It is no he right waa eritanee of a to divide the de the a^reo- jretbre, ji;ave iition which idonnient by it of his mill in limils new ere is, tiiore- II the ground TEANSACTION 809 OKOVKOS FOR ANXri.LlXO that Lavalldo i-eceived no considenition for it. But it is said that nn agreement of compromise, liUe any other agreement, may he set aside for what the J'rench law terins "dol," or want of gf)od faith in either of the contracting parties; and it is alleged that ('handier, bj' his agent, was guilty of ''dol," b^- misrepresentition of his title, and by using intimidati(m towards Lavallde. The misreprosentatinn im- puted to him is that he claimed by his protest rights as seignior of Nicolet which did not belong to liim, and treated as within his seigniory a part of the river which was actually within the boun- daries of La Bale; and it is contended, that as he had been lor many years the owner of some portions of the seignior}- of Nicolet, includ- ing La Fourche, and had resided within it, he couLl not have been ignorant either of the boundaries of his seigniory or of the rights which belonged to it; and that, therefore, if his claim were un- founded, he must have known them to be so at the time when he nuide them. ]Jut the proceedings under the act for abolishing feudal tenures in Canada show that upon both these points he might be honestly mis- taken. With respect to the boundaries of seigniories, it appears that when this part of Canada was settled by the French govern- ment about the year 1680, the country was waste and uncultivated, and for the most jiart covered with woods, and that any vtuy pre- cise description of boundaries was scarcely possible ; that the plan of settlement adopted was to grant a large jilot of land to some person as seignior, in order that be might grant it out to tenants or " censitaircs " for the purpose of cultivation. The grant of the seignior}'^ of La Bale describes the boundary on one side as two leagues in a forest, to be measured from the Lake St. Pierre, with the isles, islets and meadows, which nught be met with in that space, and it is by mcani of this measurement that it is made out that this seigniory at the place in question includes the whole channel of the river, though the shore bounding it on the side of Nicolet is within that lordship. It might well, therefore, when the notice was given, be a matter of doubt whether the wliolc or ])art of the stream was not also within that lordship, though at the trial of the cause the fact had been ascertained, and was admitted to be otherwise The fact itself was not, jierhajjs, of an}' great importance, for the diver- sion of a stream running througii several seigniories, couki not be jusiitied simply by the circumstance that the particular place at which the diversion was made belonged to onl^'one seignior. On re- lerring to the maps of Canada, it a])]iears that the Nicolet is a very large river divided by the Isle La Fourche into two branches, of which the south-west branch must run through many seigniories be- sides that of La Bale, and certainly runs along, and jjrobably in ])art of its course entirely within the seigniory of Nicolet. But the fact (whether material or not) wa.s made out by the title deeds of the respondent; he had, therefore, at least equal means of knowing it M'ith Chandler, and there is no inore reason f )r imputing actual knowledge to Chandler than to him. As to the general feudal rights of the seigniors ; when the}- were abolished l>y an act ot the legislature in 1854, a commission, con.sisting of all the judges, 810 TRANSACTION GROUNDS FOR ANNrLLINO was appointed for the purpose ofdetermining questions which might arise with respect to them. A very hu'ge proportion of those ques- tions appears ny the proceedings to have related to the rights of the seigniors in non-navigable streams and waters within their seigniories. They insisted that, notwithstanding the grant of the lands by them to their tenants or " ccnsitaires," they still retained the property in all these waters, and a right to the exclusive use oftherafortho (jurposes of mills and manufactories. This claim was not allowed )y the commissioners, though it seems to have been in some instances recognized by judicial decision. With respect to mills, it appears that each seignior was bound by law to build a j.'rist mill within his seigniory for the use of his tenants ; that the tenants were bound to resort to such mill ; anil that no person, except the lord, was at liberty to build a mill of the same description within the seigniory. These mills were called "mouUns banaux" ; and if a mill of the same kind were erected within his seigniory by any other person, the lord had the right to demand its demolition, lie also claimed the right of taking back from any " censitaire" a portion of the land included in his grant for the purpose of erecting such mill, making a reasonable compensation. Whether this last claim was well founded or not does not appear to have been decided by the judges under the commission; but it is submitted as a proposition of law by the attorney general. Now, Chandler's protest is quite hi conformity with these claims. He insists that, in his character of seignior of Nicolet, and La Fourche, he is entitled to all non-navig- able streams within the seigniory, and to the exclusive right of buildings mills and manufactories of all kinds within the same ; and he alleges that the proceedings of Lavallde in erecting the dam and quay within his seigniory were an infringement of his rights. It may admit of doubt whether Chandler's claim to interfere with the works of Lavalide's mill within his (Chandler's) seigniory was without foundation. If the lord had a right to prevent the erection of any grist mill within the lordship, on the ground that it might interfere with the custom duo to his own mill, there seems room for argument that he might prevent the erection within his seigniory of a uii'I of that descri])tion, which might be >-^ually injurious to him, thoiigli the main building was situate within the limits of an adjoining seigniv,ry. The question, however, is not whci her Chandler could have sustained his claim, but whether it was so unreasonable that it could not have been advanced bond fide ; and we certainly cannot come lo that con- clusion. It is mentioned in his jirotest thot he had served a notice of claims to the same effect in the j^ear 1825, on the Dospins, the then owners of the mill. We feel bound to say that we can discover nothing in this case to support the charge of wilful misrepresenta- tion by Chandler, nor can we tiiid any sufficient evidence of surprise or intimidation of the respondent. Many months intervened between the service of the protest and the agreement, and there is nothing to show that the respondent was in any manner under the control or influence of Chandler, or in such circumstances or condition of life as to be subject to intimidation by him. TRANSACTION 811 hich might those qiics- ghts of the weigniorioa. Is by them property in lom for the not allowed 3n in some to mills, it a ^'rist mill enants wore pt the lord, within the and if a mill )y any other n. Ho also a portion of ig such mill, t claim was icided by the roposition of t is quite hi character of ,11 non-navig- sive right of e same ; ami the dam and is rights. It fere witli the iigniory was ny grist mill ere with the ment that ho II niil ■ of that I, though the ng seigniv,ry. x\'G sustained )uld not have B 10 that con- rvcd a notice Dospins, the can discover isrcprcsoiita- ;e of surprise jned between is nothing to le control or adition of life OROVNDS FOR AN1KVI.MNO The retrocession obtained from Eichard, and the threat by Chandler to build a mill in the seigniory of Nicolet, are in a great measure explained by the state of the law, to which we have ad- verted, at the date of the agreement ; and we think that the engage- ment by Chandler not to build any mill within certain limits was a substantial concession by him. If, therefore, the transaction were recent and had not been the subject of former discussion, we must hold upon his evidence th-il the charge of " dol " brought against Chandler had not l)een substan- tiated ; but it mu.st be remembered that, lor some time aflor the agreement was made, it was acted upon l)y both parties; that its validity was first disputed in 1852, when Chandler was dead, 1 hough Cress(i seems to have been living; that the grounds on which its validity was then disputed were the same with those laid in the present suit; that the case was decided against the respondent ; and that he acquiesced in the decision. When the present suit was brought, Cressd as well as Chandler was dead. Unde" such cir- cumstances, every presumption is to ho made in favor of parties whose conduct is impeached after the death of both, and when all the explanations which might be desirable can no longer be att'ordeii. It remains to consider the objection of error in the "motif t/etermi- nan^ " of the agreement. Error on the part of the respondent is alleged generally both as to matter of fact and of law. In what cir- cumstances error will be a ground for setting aside or refusing to act upon an agreement generally, and an agreement of compromise in particular, and what the nature and eft'ect of the error must be, seems to have perplexed alike judges in England and foreign jurists. The question here is to be determined exclusively by the French law, as it is applicable to compromises or transactions. The rule, as we collect it from the numerous authorities cited in the argu- ment, appears to be this: — If the error relied on, bo in a matter of fact, ami the fact be one not included in the compromise, and of such a character that it must be considered the determining motive of either of the parties in entering into tlie agreement, its existence is regarded as a condition implied, though not expressed ; and then if the fact fail, the foundation of the agreement fails. This seems to be the meaning of the language used by Touilier, b. 3, tit. 3, s. 42, and following articles. Tiie instances which lie puts arc : if a com- promise be founded on tlie genuineness of instruments which turn out to be tbrged ; or if a suit, which it is the object of a compromise to determine, turns out to have been already decided in favor of one of the parties ; or if a compromise be founded upon a will which turns out to have been revoked by another will of which the ])arties are ignorant. But he says, when the compromise is general of all matters in ditt'erence between the parties, then the rule of law is ditl'erent, because it is not proved that the compromise would not have taken place although tlie parties had known that one of the points was not doubtful. In such a case it is neither proved nor presumed that the com- promise would not have taken place; and in case of doubt, '• erreur ne nuit qu'il celui qui ctait dans I'ignorance." The general rule m MH 812 TRANSACTIOX OROlJ.\DN FOR ASiNCLLIXG then applies, "Error noeot orranti." Wc cannot say (hat in Ihi.s ca.sc any mitstalve of fact liaB l)een ]>roveil on tiio part of t lie resjion- dcnt, which, if it had lieen icnown, would have ])rev;!nted the ai^ree- raont. It is neither proved that Lavalleo lielieved the part in (jues- tion of the river Nicolet to be within (ho seignio'.y of (/'handier, nor that if he had known it to ho within the seigniory of La iiaie, he would not have entered into the compromise. It a|)pears to us lo have been the intention of the parties to come to a general settle- ment of ail the matters in dispute between them, without resorting to litigation in order to determine tlie various jioints of fact or (d" law upon which their rights might depend. Ah to tln^ etlcct of error in law upon agreements of this descrij)tion, art. 2052 of the Code Civil provides, " Los transactions ont ent re les parties I'autorild de la chose jugde en dernier ressort. I-jIIos ne peuvont etre attaqut'cs pour cause d'erreur do droit ni pour cause de lesion." This article in itself, ofcour.se, has no force in Canada, but it is merely an em bodimcnt of the ancient law of France, as is clear from the chajitcr in Pomat's Civil Law, tit " Des Traiisactions" and as is ex])ressly stated by i[erlin in the passage relied on by the i-espondent in the R»5i)ertoiro, tit. ^'Transaction," sect. 5, art. 2, vol. 8-i, p. ;{71, lie says : — "L'erreur de droit ne pent jamais servir de prdtexte de fairo rescinder unc transaction. Les ancicnnes lois I'avaient decidd, et I'article 2052 du Code Civil dit expressemont que ' les transactions ne peuvent etre attaquees pour cause d'erreur de droit.'" As a general rule, this is not denied b}' (he resj)ondent. But he contends that there is an exception where a mistake has prevailed generally with respect to the law atfecting whole classes of the community, and a compromise has been made founded upon such mistalce. And it is .said, that at the lime when this agreement was matle, the rights of the seigniors, with respect to non-navigable rivers and other waters within their seigniories were universally considered lo be much larger than they were afterwards found to be by the ])rocee(l- ings under the commission to which we have already referred, and that this mistake was the foundation of the agreement. In support of the proposition of law, a passage is referred to in Merlin's K(5pei' toire, immediatcl}' following that which we have just read, and which is in these words: — ■' Si ccpendant l'erreur de droit avait dte tellement geiidrale que le k'gislateur se fut cru oblige non-seulement de la fairo cesser par unc declaration do sa volontd, mais encore do rclevor ceux qui I'auraient commiso do tons les acquiescement s aux- quels olio aurait ])U les entrainer, la transaction qui aurait etc la suite d'une pareillo erreur scrait incontestablement luiUe. ("estco qii'a juge iin Arret du 24 Mars, 1807, rap])ort<5 au mot Communiuix, s. 4." It is obvious, that if an act of legislation, correcting a mis- take generally prevailing as to the law on a particular subject, at the same time oxprossij^ re'ieves parties who have acted on (ho mis- take from the consequences of their acts, there is no question for a judge to decide; and this is the case stated by Merlin. It is true that the arret to which ho refers states merely that the party was not bound by acquiescence in a decree arbitral, " puis([ue I'opinion gendrale dtait alors que les decisions d'arbitres forcds n'dtaient point TIJANSACTION 813 t h hat in this tlic respon- tlic iini'ce- ir( in (|Uos- uidlor, nor vii Hiiio, lie •s 1() US to lornl hcltlo- rcjsortiiiif f the I or of \v ctlcct of ^052 of I ho I'auloritd iUtiiqui'tos Thiw articlo iH'ly an em thu chapter is ox])rt'.ssly dent in tiie p. ;{71, lio jxte de fairo t decide, et transactions it.'" As a he contends hi generally coinin unity, stake. And 0, the riirhts i and otlier lidered to ho the proceed- eferred, and In support rlin's R(5pei'- st read, and roit avait dto )n-seulement lis encore do icments aux- aurait etc la lie. C'est ce Jommunaux, 3Cting a mis- ir suliject, at I on the rais- iiestion for a 1. It is true 10 party was que I'ojjinion etaient point attaquahles ])ar cette voie," that is, hy way of cas^aliorl, Xcilher tlie i;;eneral rule nor the particular case (of whicii the circrini^lances were very jjecuiiar, and foinided on the laws enacleij liy ihe revolu- tionary government of France in the years 17!»2 and \~\Ki, in favor of the ])easanls aganirft their lords) goes the length of eslahlisliing the ])rinciple contended tor liy the res])()ndent, that a mistake of law as to rights of ditferent classes prevailing generally at the time of a '^transaction" is sutUcient to annul a contract tounded upon such mistidce. Whether under any circumstances it would he sutHcient to do HO it is unnecessary for us to consider, because on refenung to the ])roceodings, wo are satisticd that the facts of this case afford no ground for any such question. On tlio contrary, a careful examina- tion of these proceedings as they are stated in tiie Lower Canada reports, with which we have heen furnished, conviuci's us that at the date of this compromise vl'Vv gi'cat doulit prevaik'd us to the rights of the lords and their teniints respectively to the ownership and the use of non-navigahle rivers, and as to tiie right to erect mills, and hy means of dams to divert the water to such mills ; and that there was no umeral recognition of the rights claimed hy tho lords The thirty seventh question put to the commissioners was in these words: — What was the jurisprudence followed in Lower Canada since tlio cession of the country in relation to the various rights claimed hy seigniors in the waters which pass througli, or border u])on, tlie lands comprised in their respective " censives f " The legal proposition sulmutted on the ])art of the Crown was, " that althougli several judgments favorable to the I'retensions of the seigniors on the matter have been pronounced, they are not such as the law requires to establish a jurisprudence ; " and tlio opinion of the court is, "that there has been no established jurispru- dence in Lower Canada since the cession in relation to the right in the waters wiiicb pass through or border uixin Ihe lands." There is no grounil, therefore, in this case for any exception to the general rule, than an agreement of comjiromise is not vitiated by a mi.'-tak'o of either ])arty in matters of law. U})on the whole, we lia\e come to the conclusion that the judgment of the court below cannot be supported ; that this agreement is to be dealt with upon the prin- ci])les applied by French law to ''Transactions;" that tiie with- drawal of the claim of Chandler to interfere with the dam, and the engagement to limit his right of building mills, constituted a sutli- cient consideration to su])port the agreement, and that no such proof has heen given, either ot "dol" or '-erreur," as would autiiorize a court of justice to annul it. We must liumbly advise her Majesty to reverse tho judgment complained of, and to restore the juilgment of tho Circuit court ; and wo think that the appeUants must have the costs in the Queen's Bench, ami of this ai)i)eal. As this case is to be decided exclusively by the French law we have forborne to advert to the English authorities upon the subject. But wo may observe that in tho caso(jf Stewart v. Stewart {(i CI. and Fin. 911), in the House of Lords, which w^as a case from Scotland, a very careful examination took place of the principles to be applied to this sub- ject ; and Lord Coltenham came to the conclusion that tho rules of 814 TRANSACTION OROII!VDM FOR ANNVLMNG the civil Iftw had been, in effect, adopted into the hiw both of Knyliind and Scotland ; and this appears to have been the cawe with the law of France. TRUSTEE See Testamentary Executou. TRVSTER FOR TURNPIKE ROADS See Highway : iisdem verbis. TUTORSHIP LCOAVT FROM WARD. Moss ET AL V. LeATIIAM ET AL 32. A Judgment -vvas obtaiued by consent, fixing the share of three heirs in the estate of their father. One of the heirs, a minor, made a will in iavonr of her guardians. In a suit by the two other heiris to set aside the will, on the grounds that the will was obtained by undue influence, that the testator was a minor, and that the guardians could not benefit by the will of their ward, the Privy Council held, that the right of the guardians was unquest- ionable, and the will was maintained. See Minority. remuion and ntatds of minor children. Skinneu v. Orde ' 33. A child, born in India, whose father was a European British subject and a Christian, must be presumed to have the father's religion, and his corresponding civil and social status ; and is it the duty of a guardian to bring up his wards in his father's religion. 1 Duminica, 1837 Xov. 29, II Moore 73. 2 Allahabad, 1871 Dec. 12, VIII Moore N. S. 2G1. of i-'nglund the law iih \M ET AL ' fixing the Oue of the rdians. lu will, ou the e intlueuce, guardiaus the Privy as unquest- iR V. Orde ' a European ned to have il and social up his wards u SUMMARY USAGE MDHT be ADHEnSD TO PACIK USURY l-AOK 815 I AnSNT'S COMMISSION 81B USAGE 1IIVI9T BE ADHERED TO CowiE V. Remfry ' 1. Their Lordships remarked in this case on the advisa- bility of adhering to the acknowledged customs and usages, especially in commercial contracts. The KioiiT Hon. Dr. Li;.sin.\(jTnN. p. 24" : — It may lie true, tluit merc'hanlH dealing, inter se, are not liound liy any cuBloniary mode of contracting, and tiiat they may adopt another and dillerent mode of contracting, if they think fit ; but we are of o])inion, tliat tlio presumption i« strongly in favour of the custom, and that any alleged deviation therefrom must be strictly proved P. 249: — We think that the established usage of dealing in the mercantile world, should be held in high respect, the ver}- existence of such usage shows that in practice it has been found useful and beneficial; the presumption is in its favour, and no departure from it is to bo inferred from doubtful circumstances, and especially not from circumstances, which, in the opinion of mercantile men gener- ally, would not be conceived to jjroduce any such consequences. USURY A«ENT*8 COMMISSION. KlERZKOWSKI V. DORION ' 2. Under the French law, there is an action to recover back from the lender any money received by him on an usu- rious contract in excess of the jirincipal and legal interest. 3. In an action brought to recover a sum of money alleged to have been paid in excess, upon a contract for a loan of ^£4,876, made in the year 1845, of which ^£3,325 1 Calcutta, 1846 Feb. 11, V Moore 247. 2 Lower Canada, 1868 Dec. 4, V Moore N. S. 397. j- ' ' iiit.MO'"""" »-— ^-i-- 810 USURY only wcro paid to the borrowors, tho balanco, jel,r)00, beiiij? retained by tho af;fent ol" tho lender nn a, hunus or premium, the Jnditial Committee held, that no sulHcient proof havini? been made ol' the lender's knoAvledjjcf of the retention of Huch commisHion, and no exfCHH of i)avnient on account of intercNt, before the year IKo.S, wh 830 85,3 8130 Sin I'i:ksi;.mi'Tion acainst Ar Evi- DE.NCB : iistlem verbis. I'lioliATK of See. KviDKNCE: iisde.m verbix ; Intrrnational law : m- (lem verhi». I'liolIlniTION KliOM CONTK.STI.Nli A.... Pll'llllllITIOS TO AMKN^TF OR TO .SEIZE IUtikicatio.v OK liKl'UllLICATION OF Ukvocat'on ok iSUCCESSIO.N DUTY WRIT OF ERROR See Appeal: iisdem verbis. WRITS OF PREROGATIVE /filbe(i.\ corpus Mandamus. .Sec Mandamus. Scire Facias 1 The law of 1777 niuinst usury was repealed by '12 Vict., ch. 82 (1853). 864 870 871 872 874 880 880 881 500, beiiijTf or /)ieminni, root' having rt'ttMition of 1 aiic'ount ol' usury WHS tho action Ity tlio old upon UM UHU- o l)eon fully oncl (ho legal rr, Traiti de bro, is voHtod Ijy tlio law of loan, tho Act atla, was that PAHEB See Evi- NCK : iisdum LL LAW : iis- KSTINO A.... 864 *TK on To 870 871 872 874 880 RIIUR ;OGATIVE 880 iimui. 881 i'i (1853). WARDEN See Fahrique. WAKRANTY See Inssuuance, Suuetysiiip. WILL ABAiwDONMEXT OF WILL. See EVIDENCE : iisdem verbis. AI.TERATIONH, OBMTKHATIOWN, IXTKHMNEATIOWN. fhlEVIM.E V. Tvr.EE ' 1. The fact that the amount bequeathed or the name of a legatee, or the description of the property, etc., is written in different ink, and in a different hand-writing, does not alone constitute an obliteration, interlineation, or other alteration, within the meaning of the statute, nor does any presumption arise against a will being duly executed as it appears. 2. The case is different where there is an erasure apparent on the face of the will, and that erasure has been superin- duced by other writing. In such circumstances, by the statute of wills, 1 Vict., ch. 26, sect. 21, the onus probandi lie.s upon the party who alleges such alteration to have been done prior to execution, to prove by extrinsic evidence that the words were inserted before execution, and that they had the sanction of the testator. See Evidence : /jresumplion. Cooper V. Bockett. CAPACITY OF MI5iD TUFNELL ET AT, V. CoNSTABl/E ET AL '' 3. Weakness of mind and forgetfulness are not sufTi'D. aud rendered bis mind incapable of exertion unless ronsed. The will was executed by the testator on his deathbed in favour of his wife to the exclusion of the other members of his family, which was a total departixre from, and contrary to the previous expressed intentions of the testator. Jill. JrsTicE Hkskine, )). 2!H): — ^Bu( their Lordships arc of opi- nion, that in order lo constitute a sound disposing; mind, a testator must not on!}' be able to understand that he is by his will giving the whole of his property to one oijjoct of his regard ; but that lie must also have capacity to comprehend the extent of liis property, and the nature of llie chiims of others, whom, by liis will, he is exclud- ing from ail jiariicipation in that ])roperty ; and that the protection of tiie law is in no cases more needed than it is in those where the mind has be( n too much enfeebled to comjirehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration. Austen v. Graham ' o. It is not sufficient in order to prove insanity and incapacity to make a will to e,sta])lish by evidence that a testator was laboixring tinder a sickness that caused him jrreat suH'erings, that his appearance, manners, and lana'trage were strange and Avild, and that l;is -will was extraordinary. 6. The testator was an Englishman who had adopted the habits and the faith of the Hindoos. By his will after bequeathing sereral h'gacies, he gave the residue of his property to the Turkish Ambassador or representative, in part for the poor, and in part to erect a cenotaph with a light burning, and a description of the testator. T. What might appear absurd and irrational in a native Christian, might not necessarily bear the same character when proceeding from a native Mahometan, or from one who, from an early period, had adopted its manners aud modes of life, and who entertained or professed a belief in Mahomedanism. Dimes v. Dimes '' 8. In a case where from illness tht testator's mind fliic- tuated, and at times exhibited an excitement Avhich amounted to unsoundness of mind, a will and codicil made in aci'ordance with the intentions of the deceased expressed in a former testamentary instrximent and of his declarations and the state of his affections, was admitted to probate, the 1 Caiiterbiny, 18,')4 Foli. 22, VIH Moore 493. 2 Cauterbury, 18,^)0 Jirie 21, X .Moore 422. AVILL 81!) ess roused, jathbed in members from, and le testator. irc of opi- (1, a testator 11 giving tho hat he must ropertj-, and he is t>"xclu(l- le protection •e where the objects than ( forced upon that might Graham ' sanity and enre that a oaixsed him id lano-iiagH traordinary. adopted the s will alter ^idne ol' his sentative, in taph with a I in a native ne character or from one nanners and d a belief in Es V. Dimes ' 's mind lini- ment which codicil made sed expressed s declarations probate, the ^ *A1'AC"ITY OF MIXn. fact of a lucid interval at the time of execution being established. 9. The dilierence, in a question of lluctuating cajiacity and partial recovery, between unsoundness of mind par- taking of the nature of mental derangement, manifesting itself in insane delusion, and unsoundness of mind caused by fever, which produces delirium, observed upon. TuK liKHiT Hon. F. Lushinoton, p. 428 ; — Unsoundness of mind i)\ay lie [jroduced liy various causes. A man may he of unsound mind when he lahours under delusions, or from excess of fever wiiicli produces delirium, or when in a comatose state. When an iiulividna! entertains delusions, he is more i»roperly said to he insane than wiicn he is temporarily atfected by delirium or excess (.)f fever, but unsound- ness of mind arising from insane delirium is vvi'v ditfercnt from tiuit occasioned by fever t)r excess. Delusions are of a more permanent character, and when once proved to have been entertained, stronger and more conclusive evidence is required to siiow that the mind has been relieved from them. Xot so when the moving cause is delirium or excess of fever. Such causes are in the nature of a more temjto- rary character, moi'e liivcly to yield to metlical treatment, and there is more probability of cure. Princess and thk J-Lvst India Comi'anv v. l)vrt;SiiMiuiE et al. ' 10. Soundness and unsoundness of iniiul must be con- sidered at the periods of giving instructions for and of the execution of the will and codicil, and the (juestion may be determined by the coiiduct of the testator at tliose jiarticular times ; but where the testator was under the protection of a commission of lunacy at the time ol his death, it is }'eces- sary to mak<' an iiuiuiry : lirsl^ as to the ti'siator's birth and origin ; secoudlij, into the testatqr's early history and educa- tion : fliirdl//, as to th'3 testator's society and habits up to his death; fourtlUi/, an to the testator's character and per.sonal conduct. 11. Insane delusions are of two kinds : the belief in things impossible; and the Ijeliefin things possible. l)Ut so impro- bable under the surrounding circumstances, that no person of sou)kI mind would give them credit. The carrying to an insane extent impressions not in their nature irrational, may ilso be added. The huHir Hon. P. Lushinoton, p 27'i: — In tcsiamjiuary cases the giving instrticlions lor any testamentary inst: uuuiU is olU'n, we Tuight say generally, the most important jiart ol llic transaction, for frequently the execution is little more than a matter of Ibrm. It is necessary, llieretiire, to scrutinize closely the evidence applicable to 1 Uaiitorbury, ISM Apiil 10, X Moore 232. 820 WILL f c I. ^ CAPACITY «F MI.\D. the iiLstructioii: — we mean the evidence applying to the state of nind of tlie deceased wlien he gave such instructions; not to iho contents of which hereafter. It is necessary to hear in mind what is well known to those > <>ri versant with disjiiited wills, namely, the clear distinctin" f-^twceii the examination into the cajiacilyof a testator, and his soundness of mind. They are verj' ditl'erent cases, and though capacity in oi'di- nary language miglit include everything necessary to prove a power of testation. yet in the more restricted sense used in thePTLr.,,;r;i!.ive Court they liavc Itcen held distinct. For instance, in cases where no insanity has cither ex- j ■ i. or been supposed to exist, the inquiry into the capacity of a testator in extreme old age or enfeehled by long illness, or when death is fast approaching, simply is, whether the mental faculties retain sutHcient strengtii fully to compi'ehend the act about to he done ; but when lunacy or unsoundness of mind has previously existed, the investi- gation is of a totally ditl'erent character. In such a case, though there may be latent disease, the mental faculties may be ajiparently in full vigour, the ])ower of apprehension and of memory may be wlioUy unartected, and then the object is to investigate and ascertain whether the delusions which had once existed in the mind are wholly removetl. See Evidence : //rabale of idlla. COMPE.\8ATIOX C.VnKK SI.AVKS AnOLITIOX ACT. Ru'ii.viins V. Attorney (rENKU.VL of jAM.vrc.v ' 12. At the timo of tho abolition of slavery in all the British colonies (1834), by 3 and 4 Will IV, the law provided for a compeiisatiou. Held, that this compensatiou must be considered as personal estate of a testator and not as a real estate, and might be as such devised by a will attested to pass personalty only. CONMTItUCTION 4>F The Mayor op Hamilton v. IIodsdon ' 13. The word " estate " when used in a will, is genua, generalissimiim, and will, of its own proper forre, without any proof aliunde, of an intention to aid the constrtiction, carry realty, as well as personalty, and is not to be confined and restrained to ])ersonaity only ; unless there is a clear intent expressed, in other parts of the will, to be gathered either from the whole will, or from the way in which the word is ttsed in the particttlar part of the Avill where the contested tise of it arises ; or in some other way it is shown 1 Jnmaii'a, 1848 July 8, VI Moore ;i8I. 2 Bfimudu, 18-17 Feb. 10, VI Moore 76. late of nind ho conloiii'* those <"ii i)Ti !>'>t\vceii ;ou;idiiess of •ity in ortli- >vo 11 power p. :, :„:-ve ex'., J"'-, or ii testator in loath is fast lin sufficient • ; Ijiit when the investi- case, though le apparently nory may be iiid ascertain lid arc wholly F Jamaica ' in all tho aw provided lusidered as estate, aud ted to pass ■. HODSDON " \'ill, is genus 3ri'.e, without coustruftioii, 3 be coufmed ite is a clear I be gatheretl ill wliit'h the ill where the ,y it is shown WILL 821 ('oxstku(;tiox of to be restricted to mere personal estate, contrary to tht; strict usual, and now established ibrce, effect, and Value of the word. Towns v. We.ntwhutii ' 14. A testator in his will bequeathed all his property to his children, " in such manner that the same shall be enjoyed by them respectively only for and durinjj the period ol' their natural lives ; in order, therelcre. to limit the same strictly in entail on them ray said children, and to their see ' 19. The paramount daty of courts of justice in construing wills is to ascertain and give etlect to the intention of the testator or testatrix, to be collected from the whole will, and not from any particular word or expression which may be contained in it. •20. This rule should prevails against well established rales of construt-'tion, such as that that the word eufants in a will includes pet its-eti funis especially where the will is writ- ent iu English, seing tliat in English law, this significa- tion of the word "children'' is not given such an extension. 21. By the will to be construed, the testatrix, devised and bequeathed her real and personal estate to her husband for his life, and after his decease to her children, living at the time of her decease. Five children were living at the time of the testatrix's death, three of whom were minors, and one grand-child, the issue of a daughter of the testatrix who had pre-deceased her. In an action of account and i>arlilion brought in Lower Canada, l)y a grand-child as a legatee under the will, the courts there declared that the 1 Isle of Man, 18S8 Not. ,30. XII Mooie 208. 2 Lower Canada, 18C0 N'ovemlier 30, XIV Moore 142. 824 WILL €0NNTRIT€T10Iir OF word " childreu " in the will, w^as equivalent to the French word " enfanls" which term by the old French law compre- hended grandchildren, and held the grandchild entitled to take under the will. The Judicial Committee reversed this judgment because upon the true construction of the will, the intention of the testatrix was manifestly to restrict the gift to her cnildren, which intention countervailed the general force given to the word " enfanls,'" by the old French law. 22. This will being written iu the English language, it was the du.y of the courts in Lower Canada to a,scertaiu what, according to the English law, was the meaning of the word ■• children," following in their decisioi) of the case, the ] iw of domicile, but resorting to the Foreign, ;. e. the English 1 i"vv-, or language, for the purpose of deciding the meaning oi the ^larticular word used iu the will. LoRii TiiRNEK, p. 15;-{: — Tlieir TiOnlshipH, after having' fully con- .sidered thits cut-o. tind thcnl^^elvos unable t(j agree with the conclusion iitwhieli the courts in Ciinjuhi have arrived upon the con.struction of llie will. That a more extensive signitication is frequently given by the old Freneli law which prevails in Canada to the word '"enfants" than is generally given by the English law to the word ''children," their Lordships do not doubt; but they are salistitd lliat iiy the old French hiw, no less than by the English hiw. the jiai'amount duty of the courts in construin/ wills is to ascertain and give ett'ect to the intention oi'the testator or testatrix, to be coliectetl from the whole will, and not from anj' particular word or expression which may be contained in it ; and extensive as has been the signiiieat ion which the old French law lias in many case- -riven to embrace only the tirst generation of issue, it has been so confined in construction, ol'whicli the following case is an exemjile : Invitatis ad tide i eommissum libe- rie qui t'x Titio et Srmpronia nasrerentur, soli pi'i'M. gradus liberi nan etiam nupotes invitatt cidenitir. quia licet liberorum appellat/one ronti- neniur adeoque filiorum cum de faron, et commodo ijinonan agitur, illiid tamen nun minus verum quam tritumesf, articulo ex non nisi proxima/n et immediatam causam siqnificari: ut perindc sit ac si fidei eommissum lis duntaxat relictum esset, qui e.r Titii et Sempronia' corporibiis nas- cerentur, quo casu aperthis est >■ ■••atos tos videri mm ponse qui non ex Titio et Semproma sed < ;■ eona)t 'ib?ris susceptiessent. This ca.-^e is to be found in 4 Burge'sC .)mments..i)(J7. but their Lordshi])s refer to it only by way of example. There are many other cases to the like ett'ecl to be found in the biM>ks. The true question, therei'ore. in this case is, not whether the Avord '' enfant s " may inciude grand-children, and even more rem >te descendants, but whether, upon the true construe, tion ol'this will, it was intended to incliule them, and their Lordslii])N are perfectly BUlifstted that it was not so intended by the testatrix. he French w compre- d entitled ut because itiou of the • cnildreu, given to anguage, it afscertaui mug oi" the he case, the the English iiiif fully con- be coiu'lusion )n.strnction of y given by the ■enfaiits" than liidron," their he old Frencli it duty of the ctl'eet to the rom the whole which may be .ficiilioii which oril " enfants," iii8 i^utticiently only tlie tii'st ■tion, of whicli j)iiniissum libe- ■adu'< lihtri non eUaiiune ronti- 17)1 aed, fully argued. It is su'Ucient to sjiy that, taking the ca>-e in the view most favouJ'able to ;ho respondent, the judgments of tin , imiii.-, in Canada camiot, in their TiOrd^hijis' opinion, ue sU})ported. Tiey will, therefore, humbly recommend toiler >rajesly lo rever.se the decree of the court of Queen's Bench, and to substitute for it a decree disndssing the suit without costs, and lo give no cost^ of the appeal. Mauokr v. Le Gali.ais ' 2:1. The law of Jersey requires that to he valid a will containing a ieoaoy of immoveables must be signed before 1 Jeisey, 1807 Jun'j 22, IV Moore N. f<. 39,'). ■•■' * ' iMH i Mawnii i W ' .nim i i iiiii 82(; WILL t'ONKTiii'<'Tiox or two wituosses who must also sign, and uo attestation on the part oi" tho witnesses is valid unless it is dated. 24. To a will disposing of real estate, an attestation clause was appended as follows : " Le jiresent testament o/ugra/ihe a ele .sjij^e par le testuleur en noire presence, et nous 1/ nvons a/tpose noire sii>-n(iture, romme temoim, en presence du dit testnteur, et en presence I'un tie I' autre, le dit Jour y The Judicial Committee held, that as there was only one date in the will which was the date of the will itself, the words '' le dit jovr'' in the attestation clause, referred suffi cieutly to the date contained in the will to comply with the requirements of the law. ISarmiw v. Ohde ' 25. In English law, under a testamentary gift to children, illegitimate children, although recognized by the testator in his life-time, cannot be permitted to share with legitim- ate children. This rule does not apply in India to a person domiciled there. The word "children" in a will made by a resident in the North-Western provinces of India includes illegitimate as well as legitimate children, w^hen- ever such illegitimate children are acknowledged or treated as his children l)y their putative father. Lagesse v. Laoes.se ' 26. A testator made in his will the following disposition : " J'ai reconnu pour mes enfanls nulure/s, etc ; el je donne et je li'f^ue a ces enfanls la moitie de tous les hiens generalement quel- conque que Je laisserai au Jcur de mon deces." The children were legitimated by the subsequent marriage of the testator with their mother. By the law of Mauritius, the testator could only dispo.se by will of one-third of his property. The Judicial Committee, in construing this clause, held, that the legacy given to the children referred to half of the whole estate and not to half of the quotile disponible only ; and that the children had to elect between their quotile dis- ponible, two-thirds, or the legacy, one-half YeAI- ChEAH Xeo v. OUG ChENO JfE') ' 27. A will contained the following disposition " as regards " the remainder of my real and personal property of what " kind soever, not already disposed of, I direct that my exe- 1 Lahore, 1870 Juu. 29, Vf Moore N. S. 437. 2 Mauritius, 1877 Dec. 20, IX Moore N. S. 399. 3 Pcnang, 187.5 July 28, L. R. VI P. 0. 381. estatiou ou ;ed. attestation nt lestament ice, el nous >/ i-t;sence du dit 'as only oue 11 itself, the ol'erred sulfi •omply Avith \'. OllDE ' to childieu. le testator in ^•ith legitini- ludia to a ." iu a will uces o! India Idren, Avhen- '•ed or treated y. Lagesse ' J disposition : je doHiie et Je raleinent quel- Tho children 3f the testator s, the testator property. ; clause, held, to half of the spunib/e only ; eir qiiolite dis- CiiEjJo Ne'; ^ )n " as regards )erty of what that my exe- ! WILL 827 coxsTiircTiox or " ci;tors shall receive and collect the same from all persons •■ whatever, and in such manner as to them may seem '• proper, and I direct that tliey, their heirs, successors, re- ■• presentatives, or descendants, may apjily and distribute •• the same, all circiunstanies duly considered, in snch " manner and to such parties as to them may appear just."' The .Tudii'ial Committee held, that this will, under the Enii'lish law regarding wills iu forc(> in I'enaiig, gave no [)er^onal right to the executors and was not an absolute gift to them individually. 2S. The following legacies made by the same will were set aside by the court : 1 A gift of the upper story of four shojjs. in trust, for a family residence of certain named persons, wa.s declared null for iincertainty and as infringin<>' the rules against perpetuities. - A devise of two plantations, in trust, to be reserved as a family burying place, and not to l)e mortgaged or sold, de- clared void as infringing the rules of perix'tuities 3- Another devise directing that a house shoiild be built to perform therein religious ceremonies for the testatrix and her decea.sed husband, was declared void for the same reason and because said trust did not refer to a char- itable object. EUh v. .Se//;//, 1 x1///. ,\ Cr. 2ltS ; Morke v. Bishop ot' Durham, 10 Ves. 536 ; Gibbs v. Rumse//, 2 V. \ B. 2!)4 : Buckle v. Briston, 10 Ji/r. (K S.) 1095 ; Grenada v. i^feirnrl, 2 Mer. 143 ; Mai/or of Li/ons v. Easf India Co.. 1 Moore P. C. 175 : Tlionifison v. ^Imkespear. 1 F. D. i\- J. 303 ; Came v. Ling, 2 D. F. \ J. 75 ; West v. Sliulfleioortli, 2 M. \ /r.tiS4: Richard V. Rnl}son, 31 L. J. (Cli.) 89ii ; .S. C. 31 Beuv. 244; Hoare v. Osborne, Lair Rep. 1 Eq, 585. AuMYT.MiE v. Wll.KINSnX ' 20. The word " vest "' may, if the context of the Avill is in favour of that constriu'tion, be read as importing only that the interest previously vested dtiring a specified time is to become absolute and indefeasible. Taijlor v. Frobisher, 5 tie G. \ Sin, 101 ; Berli-eleij v. Swinburne. IG Sim. 275 ; Ponle V. Bolt, 11 Hare 33. \'i.\s V, DeLiveu.v '' 30. Under the Roman-dutch law, the personal ])roi)erty of the Avife is ordinarily, in the absence of special ante-nu])tial contract, held by the spouses as partners, eaeh on the death 1 Victoria, 1878 Feb. 23, L. R. ill Appeal Cases 35.5. 2 Ceyloii, 1879 Dec. 19, L. R. V Appeal Casca 123. 828 WILL ('0.\hTKr( TI(».\ OF of the other hciiiir eiitithul to his or her .share, while in the Eiif^lish hiw the whole personal property ol' the wile, in- (•hicling rliosrs in action becomeH the ay)solixte jirojierty ol' the husband. 31. A joint will is considered in English law as one will. Aceordingto lioman-diitth law it is two Avillseach disi)()sing of the shari^ oi' the testator respectively. Therefore, wht^rt; a will of a wife in India, directing that the estate shonld be divided between her husband, their daughter aiul her then existing child, it must be construed as giving one third to each of them. 82. The words " children which may hereafter be pro- created " applies to children to be born between the date of the will and the death of the testator. GlHHONS v. fllHHONS ' 33. The proviso construed in this ca.se reads as fol- lows: " Provided always, that if any person Avhom I have made tenant in tail male of my said estate shall be born in my lifetime, then and in siich case, I revoke the devise so made to him. In lieu thereof I give and devise the heredita- ments comprised in such devise and appointment to the use of the same person resi)ectively for the term of his or her natural li*V-, and after his as her decease, to the use of his or her first and every other ,son successively, according to their respective seniority in tail male." The words of this proviso must be construed according to their grammatical sense, and be taken to mean a " tenant in tail male born " after the date of my will and not before. Loriiig V. Tlioinns. 1 Dr. tV Sin. 523 ; hi, re Sheppard's Trust 1 K. iV /. 276 ; Slurgesa v. Pearson, 4 Madd. 411 ; Trapper v. Meredilh, Lair Rep. 7 Cli. 248 ; Giles v. 31elson, Law Rep. H. L. 31. Stkickland v. Marchese Fkmcissimo Ai>ai> ' 34. The general rule governing the succession to a primo- geniture was in this cause laid down as follows : " To suc- ceed iu primogenitures, in the absence of any jiarticular rule, one must consider, in the first place, the line, in the second place the degrees, in the third plai'e the sex, and in the fourth place the age." 35. But in constrtiing a will, the Judicial Committee, in this appeal, preferrc^d the sex to line and degree. The rule was, therefore, modified in its appli(;ation as far as 1 New South Wales, 1881 Jlny 14, U- R. VI Appeal Cases 471. 2 Malta, 1882 Feb. 10, L. R. VIII Appeal cases 107. ilti ill th« e will!, iii- rty ol' the IS one will. 1 disposing ', Avhere a should be d her then le third to ter be \no- \n the date . frimioNS ' ads as fol- loni I have })e born in le devise so he heredita- ment to the irm of his or o the use ol y, according according to n a " tenant ;l not before. mrd's Trust 1 ; Trapper v. n, Law Rep. ISIMO Al'AI' ' 11 to a primo- ^s: "To buc- y particular e line, iu the e sex, and in [ Committee, degree. The ou as far as WILT. 820 VO^'NTKITCTIOX OF the terras of the will render»'d it nece.ssary. but no farther : tht! principle still obtains, when it is not at variance Avith the terms of the instrument, that line is to be preferred tu degree and age. Rohan v. Dritlo Munidpt.le di Mal/a. li. iv . c. 11, s. 10 ; Farre, vol. 1, set. o, y>. ol. lillnDKS V. IiIluKKS ' 36. A will may be rejected iu tola or iu part if it is proved that although it was executed by the testator in a formal manner, yet either by error or by fraud, it does iio't contain his intentions. Lord liLACicmii.v, j), lt)8 : — WIioii :iii instruineiil piirporliiig (o bo tlicwill (it'llic (lecuiisicd por.son liii.s liocii oxociited by tlio deceased in tho ])roi)cr manner, but it is sutfieiently proved that tiiough ho oxecutod tlie instrument, yol tluit from fraud ho e.Kocuted (hat wliioh was not liisi will there is no ditticulty in itronouncin^' that the instrument is not his will. And it has been held that when it is suttieiently proved that tho instrument c()in])rised his will, but that from fraud, or porliaps from inadvertance sucli as that — In the O^ k 4i. L<9 fr \f , 830 COnrBTRtK^TIOJf OF WILL t'state situated in the proviu«'e, must ho interpreted accord- ing to the law of the province, and not according to English \a^v, though the will be in the English language and be couched in English legal phraseology. See Will : exclusion of children. Same case. De Jaoer v. 1)e Jauku ' 38. A testator devised his property to his two son.s and provided that •' the eldest son among our grand children " shall always have the same right thereto, and after the " decease of their parents remain in possession thereof, Avith " this understanding, however, that the other heirs who " may still be born shall enjoy equal share and right " thereto." Held, that the words " the other heirs " did not applv to the grand-children, but to the children, and that the eldest son of the children, there being but two, were entitled each to a moiety of the estate. Lewin v. Killey ■' 39. The testator gave a house to trustees upon trust to permit his wife to receive half of the rents and profits for her life, and his daughter therein named, the other half. Upon the decease of the wife, the trustees were directed to transfer the house to the daughter, her heirs and assigns for twer, and then follows this direction : " And it is my will '• and desire, that if any of my said children shall die ■' -without leaving lawful issue them surviving, that the " property hereby devised and bequeathed to each of my " said children shall be equally divided amongst my sur- " viviug children." The daughter having survived her mother, died without lawful issue. The Judicial Committee held, that the words " shall die without having lawful issue " must be confined to the time during which the absolute interest has not been conferred, but when thai is once conferred the trust and the period of suspense is closed, and the possession is not to be disturbed. I EXCLVSIOIf or CHILDREN. J McGiBBON V. Abbott ' 40. When a testator devised all his property, real and personal, to trustees with instructions to pay the revenues thereof to his son during his life, and to divide the capital 1 Ciipc of Good Hope, 188G Feb. 25, L. R. XI Appeal cases 411. 2 Isle of Man, 1888 July 27, L. R., XIII Appeal Cases 783. 3 Quebec, 1885 July 18, L. R. Appeal cases 655. WILL 831 EXCLVMOW OF CHII.DRE!V. among his children at his death, in suoh proportion as he, his said son, should decide by his will, a division among lour of the children to the entire exclusion of the fifth, was a valid exercise of power under the will. Sir Barnes Peacock, p. 657 : — The case was heard in the first instance in tlie Superior Court, when Mr. Justice Torrance decided in accordance with that view of the case. On appeal to the court of Queen's Bench, that court, consi^iting of Chief Justice Dorion and four other judtjes, reversed the decision of the Superior court, and unanimously held, that John Octavius Macrae had not only the right to apportion the capital between all his children, as well those of his then existin;^ marriage as those of any future marriage, but also the right to dispose of the property in favor of one or more of his children to the exclusion of the others, as he had done by will. From that judgment the plaintilf has appealed to Her Majesty in Council, for the following amongst other reasons: — 1. By the law of Lower Canada the Court is bound to give effect to the intention of the testator as evidenced by the whole will. Martin v. Lee. 14 Moore, P. C. C, 142 2. That in the case of a will in the English language and couched in English legal phraseology, it was proper for the Courts of Lower Canada, in accordance with the caae of Martin v. Lee, to have regani to the meaning and effect of that phraseology in the i'jnglish bm- guage and law at the date of the will, in order to arrive at the inten- tion of the testator. 3. That at the date of the execution of the will and down to and at the date of the death of the testator, the language of the said will would by the law of England, as it then stood, have given no right to John Octavius Macrae to exclude any of his children, but only to direct the proportions in which they would share. 4. That it appears from the will to have i)een the intention of the testator to benefit all his said grandchildren, and to give their fathei- a power only to apportion but not to exclude. 5. That there is nothing in the law of Lower Canada opposed to this construction or to this intention. The reasons of Mr. Justice Ramsay for his judgment in the court of Appeal are set out in the supplemental record, an be put upon it. Ho was not Ijound al that time to make liy iconeral wonls provision for a child who might la- afterwards born, ilc was not bound to make his ilocision u no fiat u {t^ca Canningham w Am- truthcr, 2 Lnw Reports, Scotch and IMvorce Appeals, j). 223). He might have revoked the will ami made a now will, or he mii;lit have amended it by a codicil; and all doiilit as to the validit}- of the will which was made before the birth of the plaintif.' wcnild have boon removed if John had executed a codicil amending his will bv giving one cent to tho plaintitf, and the remainder to the four cliildren nameil in tho will. William, if he had pleased, might have ]irovided by express words that each child of John should have a share, and that no share should be less than a certain amount, but he was not preiwred to rix the amount of the shares. To hold that when he left to his s.)n to tix tho proportion he intcndotl to render it compulsory upon him to give each child a share, though it should only be in the proportion of one to ten millions, would be to impute to him a most unreasonable intention. To do so would violate the rule of interpretation. Qui hteret in litera hosret in rortice." In England, Lord Alvanley in the case of Kemp v. Kemp (5 Ves. Jun., 8()i), in holding a power to be non-exclusive upon finding a current of authorities against the words being construed as giving an exclusive power, observed : " My inclination is strong to support " the execution of the power if I could consistently with the rules I "*Hnd established ; " and on referring to the case ni' Burrell v. Burrell, in which a testator gave all his real and personal estate to his wife, to the oml that she might ijice /t(.s children suck fortune as she should think proper, '^ remarked: "Lord Camden, as 1 conceive, was of '• opinion that these words were so ample that if she thought tit to " give nothing to one she might so execute the ])0wer. 1 am willing " to subscribe to that o])inion of Lord Camden upon such a douhtful " question, being perfectly satistied that in setting aside these ajipoint- '• ments, by criticising the words ' to and amongst, ' hn could not It conKitlering pWuntitt" was is not so. Ho i thought that nato teharo, or )r by a codicil, it is said, and th a fiduciary iivour of Bomo OHC, has given hich were sub- n the place of ugh the liberty h of the person jr the interests lot destroy the onee had been been revoked ; 1 of him who, d not done so. . been made at current of deci- 1874, and Lord lemselves to bo r non-exclusive. li inconvenience lon the subject, 7. la. The courts orities to which irced to yield, says with some "It is only by s has come down ;r sUirts. It was ct similar to the liat, " Under the jere was a great I children or of a t it seems to have grevi were called I that the father EX€M NIO.>r 4»F l'HII.nKK5). " could not ett'ect the disposition ; but that when the children were " called collectively, there was a diHerenco of opinion as to whether " the father could select among the children so as to give to some and " exclude others." lie adds : " Although the atlirniative of the " ju'oposition cannot be supported on a strictly legal argument, it '• seems to have prevailed.' He then cites some authorities in support of his argument. Their Lordships are not prepared to say that that exposition of the law is not correct. If then, a man to whom an estate is given for life, charged with a substitution in favour of his ehiUlren alter his death, can substitute one or more of his children to the exclusion of others, the addition of the words in the j)resent case, "in liuch ]>roportion as he shall decide," does not alfect the nature or siiljstance of the substitution. It only gives j>ower to the father to do that whic'' he could have ilone under the general words of the substitu- tion 'n favour of his children. It would be lamentable if their Lor(lshij)s, in a case arising in Lower Canadii and to be determined by the law of that country, should feel themselves bound Ity a course of English decisions which have been Hwejjt away by the Legislature as fraught with inconvenience and mischief, and thus be driven to such a construction of the will of William as would form a precetlent i.i future cases of a similar nature, and thereby introduce in Lower (Canada all those difficulties and inconveniences which it required the force of an Act of Parlia- ment in England to remove. In their Lordships' opinion the decision of the Court of Queen's Bench is correct. They will therefore humbly- advise Her Majesty to affirm the judgment of that Court. DEBTKtJCTlON OF AVEh(;ii v. Phillips 41. When it is known that a mau has made a will, and that after his death this will caunot be i'ouud after reason- able search, the law presumes that the 1 estator has des- troyed it. Mb. Baro.n Parke, p. 302 : — Xow the rule of the law of evidence on this subject, us established by a course of decisions in the Eccle- siastical court, is this : that if a will, traceil to the pos.session of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have ett'ect, unless there is sufficient evidence to repeal it. It is a presumption founded on good sense ; for it is highly reason- able to suppose that an instrument of so much importance would be carefully preserved, by a i>erson of ordinary caution, in some place of safety, and would not be either lost or stolen ; and if, on the death of the maker, it is not found in his usui 1 repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of 1 Canterbury, 1836 Dec. 13, I Moore 299. ■i fi ff' WILL DFHTNI't'TlOJr «r fact, may !'♦' reloittod li}' others which rni.-i' a higher (loi,'roo of proli- ttbilit}- to the tionirary. The '>n».s ot' proof <»1' siK'h circdiinHtancos, is iin V. (tII.HEKT ' 42. Where a isubsequeut will, the couteuts of which heiiisj unknown, and having remained in the custody of the deceased is not forthcoming', the presumption of law is that it was destroyed oy him nnimu revocandi, and does not revoke a prior will uin;anoelled. FOR.V OF .Meikle.»oiin v. Attounev Genek.vi. and Cai.dwki.i. '' 43. A testator made an holograph will written by him- self, l»ut not bearing his signature. There was no attestation clause by witnesses, and there was no date affixed to it. l{ut proof of the date was sufficiently made, by special leave of their Lordships, before the Privy Council. This will having been set aside by all the coiirts in Canada as null and void, an appeal was taken to the Privy Council. The pretention of the appellant was that the will was valid according to the law of England, as it has long been established in the courts in England, that the signatixre by a testator of his name at the beginning of a will, as in the jiresent case, Avas, for the purposes of the statute of frauds, as good as his sub.scriptiou of it at the end, in the ordinary method. The Privy Council confirmed thejvidgmeut of the courts below and held the will null. Sill LANtEMir SiiADWELL, VicE-CnANCELr.oR, p. 334: — Their Lordsliips are of (jpinicjii, that upon tho true construction ot" tlic Act 1-i lioo. ;}, c. .S3, s. 10, a will disposing of lands or goods in ('anada will be good if executed according to tho law of ( 'anuda, whicl» requires the same form fur a will of lands as for u will of L'oods; and that a will disposing of goods in Canada will be good, if liy tiie law of Kngland it were sutlicient todispo.se of personal estate; but that a will disposing of lands in Canada, if it oe not e.Kccuted acconling to the law of Canada, will not be good unless it is made according to the law of Kuglaud. The words of the section are, " executed eitlier according to tiie laws of Canada or acconling to the forms prescribed by tlie laws of England." By the English law no form is required for making a will of personal estate, but the laws of England have prescribed certain forms for making valid wills ilihi)osing of freehold lands ; and their Lordships are of opinion, that those forms are reterred to by the statute when it speaks of a 1 (JaiiitMbury, 1854 July 7, FX .Moore 131. •i Lower Cnanda, 1834 June 21, II Kntipp 328. ivo of prob- loiily on tho (iii.iiEur ' 'hioh hi'inir >dy of tht' law is that not rt'vokf AIjnVKI.I. on by him- a attostation (fixed to it. spiH-ial It'avf This will lada as null niii'il. Thi' was valid long been signature by ilt, as in the lite oi' Irauds, end, in the of the courts 334: —Their I ruction ol" llu; lis or gooils in law ofCanuda, as for a will of will be good, if personal estate; be not executed nless it is made the section are, or according to the Knglish law estate, but the jr making valid s are of opinion. 3n it speaks of a WILL 837 FORM or will of lands e.xofuted according to llie fi-ims prescribed by l\w laws of Kngland, and tiiat the term " executed " comprehends the making, subscribing and attesting, in the tnanner directed by the Statute of P'rauds," Their Lordships are also of opinion, that the Provincial Act of 41 (ioo. 3, did not intom' to alter, and has not altered, the law with regard to the form of making wills in Canada, but does, by the use o»'the words "devise or befpieath," and "what soever be the tenure of .such lands," and ijy referring to a devihc liy will in mortmain, show that the Canadian legislature considered he Act ol 14 (ieo. 3 to refer to devises of laml, technically so ealled in the law of Kngland. It is plain, upon the cases and authorities which have l>een referred to, that the will in question, though holorrraph. and admitted to Us final, was not signed according to the old law of Fram-e, which is the law of Canada, and requires that the signature shall follow the ound, to place itself in the situation of the testator with respect to his property, the objects of his bounty, and every other circumstance material to the cons- truction of the will, and for this purpose to receive, if occasion require it, parol c. idence of those circumstances, and to expound his meaning with reference to them. P. 44il : — Supposing the paper pro|)ounded as a will in this case had been exet-uted a few hours l)efore the codicil, and that there was positive proof th.'it the tcsUitrix signed no other paper till she signed the codicil, the objection which is now made ivoula,in law, be prc'isoly of the same force. It lius not been disputed that, if the codicil, had identified the paper, by describing it as containing certain bequests, such reference would have been sutHcient to let in the proof, yet in such case the f)roof would equally depend on the assumption that there was no ater will which contained sim'li r bequests, No doubt the rule of law is > , stated by Lord Eldon in Smart v. Prujean, (6 Ves. 565), that"ai. instrument, properly attested, in order to incorporate another instrument not attested, must describe it BO as to Ixs a manifestation of what the paper is which is meant to be incorporated." For this purpose it is neces.sary that it should be SO described as to leave no doubt in the mind of the judge, in the circumstances as they actually existed and are proved before him, that the paper referred to is the paper propounded In the case of Smart v. Prujean, the Testator by his will directed the proceeds of his real estate to be applied to such purjjoses as ho should, by a private letter, which he stated in his will that he intended to leave with the Abbess of a Convent named, or her 8UCCos! (luted ort'd i)Vor to of tin- will, lit', ihort'- provt'il. lu)W not on that t 1)0 n'Oi'ivod, L'lidy I'xiHting oi'viitions are Honic ilouht id untk'hiuhly nson V. Adam r thrown out, the rule that, to by a will jforonce in itM others ; if so, like a general f rcpulilication , in etfect, i» t, it has never the particular 111! other wills, nissioner Eyre lis former will, if not directly nature of the 1 a former will, xsstcd by three int seem also to that the repub- ition of the will, speak as from ng to a general himself obliged iien he had to ^iffott V. Waller the principle of roRM or that decision ; but thai a oodjcil lo a will, ilioiigli not referring In it, recognizes a preceding will, and iiiiiniints tu a reinibliiaiion he does not intimate any doubi. His words iirt! --''A direei re|iiililieaiion, or re-execution, is an iineqiiiviu al act, naking the will (>|perat»' ]»recisely as if it was executed on the day ()f the reiiulpliration. Mul a reference to the will proves onh iliat the devisor '•■engni/cs the existence of the will ; which the :i of making a (■■ licil necessarily implies; not that he means to give it any new i|ierafion, or do more bv speaking of it than he had alrcjuls lone by executing it." rio afterwards observes, ]i. 120 — Tlie " jjonU ("oniniissidnf.s, in Barnes v. Crowe appear to havedeterniimil " that i-vwy codicii, duly attested, ought t(» no hekl a repulilication Their opinion st-enis to be, that the codicil was incorjM)rated with the will. The general proposition referred to by Lord Commissioner Ei/i\, is, lliat the execution of a codicil should in all cases be an impliecl republieatioii." In the case of Doc d. Williams v. Erans (1 Cron-ji. A: Mee^. 42), a testator prepared a will which he did not sign, and about a fortnight afterwards duly executed a codicil on the same sheet of paper, com- mencing with these words : "codicil. — I, David Erans, make a codicil to the foregoing will;" and it was held thai the < odicil operated to incorporate and establish the will. Mr. Huron Hdj/ley in giving judgment, observes, "The will was written on part of a sheet of foolscap jtaper, and the codicil was written on the same sheet. Now, if the codicil had not referred to the will, 1 sbouhl have thought that it did not set up that instrument; but if the codicil do refer to the will, then I am of oiunion that it does set it up. The langimge is, 'codicil — \, David Erans, make a codicil,' which word implies an adre the Court eery in 1834, estator made and attested, his daughter, )nal estate to 1 of his will, , the testator his daughter, le afterwards gust, 1825, to properly exe- operation of ! codicils was >rds : " I, John ch bears date all real estates id execution of •s and assigns, ressed and de- }S." \ between the ;ust, 1825, and , to whom the on the part of erring to any tion of all the i the house in 1 of Gordon v. e whether such C(xlicils not re- ered to have in- what ho terms terton's Counsel the codicils in the last codicil question to the rORM OF trustees under tho will. The learned Judges liad no doubt that any testamentary paper unattested, suHiciontly referred to a duly exe- cuted and attested codicil, would bo established by such codicil, though tho two instruments were not only not on the same paper, but were not even in the same country. This is tho result which we collect from tho observations which fell from the judges in the course of the argument, though they contented themselves with sending a certificate of their opinion to tho Court of Chancery as to tho effect of the devise, without assign- ing any reasons. In the tunc of Mddburnv. Jen- is (3 Eoav. 450), decided by Lord Langdale ; tho cases of Guest v. Wfllasey, Gordon v. Lord Rcay, and Utterton v. Robins, were all cited; and his Lordship was of opinion, that a codicil duly executed and attested, tiioiigh referring onij' to the will, operated to establish and rei)ublish all previous codicils, whctlier duly executed or not. The testator there made a will giving various legacies, and charging his real estates witii all legacies thereby given. Ho made many codicils, some duly executed and attested, and some not; and by one of tlie latter class he gave a legacy to ilr. Bruiulrett. His eleventh codicil was duly executed and attested, and began in these words : " This is a further codicil to the last will and testament of me, Sir Thomas Clarges, Ban., made this 10th day April, 1828." Tho codicil was confined to revoking the appointment of two gentlemen named in the will as trustees, and tho legacies given to them, and to appointing Brundrett an executor and trustee in their stead. Lord Langdale hold, that the legacy to Brundrett was not charged on the real estates, because the codicil did not so charge it, and the will charged only tho legacies thereby given ; but he was clearly of opinion, that tho last codicil operated as a republication of all the preceding codicils, as well as of the will, though none of the codicils wore referred to. His language is — '"The object of the last cotl' '1. which was duly executed and attested, was to revoke the appointment of trustees and executors named in the will, and tho bequests given to these trustees, and to appoint 3Ir. Brundrett to be executor and trustee ; and though, in effect, it operated as a republica- tion of the will and former codicils, and might have extended any prior general devise to lands subsequently acquireil before the date of the last codicil, and have subjected such subsequently acquired lands to a general charge contained in the will ; yet, considering it as a republication of the will and all the preceding codicils, I do not think the effect is to charge on tho land, legacies which by tho.se codicils were not so charged. " Aaron v. A m ^3 Do Gex & Sm. 475), before Lord Justice Knight Bruce, recognizes tho rule of law as established in Gordon v. Lord Beat/, and treats it as not inconsistent with the decision in Utterton V. Robins ; and his Lordship observes '• that it can make no dift'er- euce whether the codicil bo written on the same paper with tho will, or written at a subsequent period, or not. " The cases to which wo have referred all turned upon instruments anterior to tho iato Wills Act ; but they show that before that Act, il 844 FORM OF T7ILL ill order to give validity against real estate to a testamentarv instru- ment ])revi(jusly inett'ectual for the purpose, such a general reference was sufficient as, when compared with the evidence produced, would enable the Court to identity the document ; that a codicil would operate as a reiiublication of the will, and that a repui)lication of a will would amount to a republicatio attested and subscribed in his presence by three or four credible witnesses, or else they shall be void. The Wills Act, 7th Will. IV., and 1 Vict., sec. 9, provides, that no will shall be valid unless it be in writing, and signed at the foot or end thereof by the testator, or by some other person in his ])resence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more wit^ nesses present at the same time, and such witnesses shall attest and shall subscribe the will in the jiresence of the testator, but no form of attestation shall bo necessary. The ceremonies necessary to authenticate the instrument are altered, but no alteration is here made in the effect to be given to words used in it. It should seem that a paper which would have lieen incorjiorated in a will executed according to the Statute of Frauds must now be incorporated in a will executed according to the new Act. In those instances in wh'ch the Legislature was of opinion that the construction put by decideil cases upon the Statute of Frauds, as to the execution of wills, or the rules applied to devises contained in them, required alteration, provisions for that purpose were intro- duced into the Act, WILL 845 sntary instru- !riil reference diiceil. would codicil would )licuti()ii of a cdent paperti je ascertainctl rs answering )i Hitchiwjs V. in 2 Moore's ing upon this lie case arose mal estate, it troversy. law in the in- icli distinction, other instru- cient, that the ■n the evidence ise woukl have )f 1837, altered ords in the Act •ed tlie mode in jxecuted, but it ifhat papers are The Statute of in writing, and is presence, and ubscribesitions, and that lament is null. by Mr. .lustice la; and, accord- onounced against ;e an appeal was L- Canada. That tament was duly ; of these, three, Justice Meredith i)f the testament; CO Mondelet, dis- L-om this sentence )rdshii)S, ancl we instruction of the pplication to the i will bo well to ' this " Coutume" WILL 847 FOBM OF 'does not require in express term.s that the will should be written by a notary at the tirao of dictation ; though it does require that the will should be read over in the presence of the notaries and of the testator; and secondly, that there is no declaration like that which is to be found in the Code Napoldon, that the formalities enjoined shall be observed on pain of nullity. In respect to these particular words " dicti et nommi," it appears to their Lordships that they must bo considered as conveying one idea, the latter word being only used to strengthen the former -^ and in this opinion their Lordships are justitied by the opinion of the learned editor of " Ferriire," and of the decision to which he refers : " La premit^re chose il observer est qu'il faut que le testament soit dictd et nomm<5 par lo testateur, sur quoy on a demands autrefois, si des mots dquivafants suffisoiont, commo profere: de sa propre bouche, il a 6t6 ddcid^ qu'ils no suffisoiont pas, la '' Coutume " disant dictt5 ot nommd ; mais quo si un notairo ne mettoit que I'un des deux, ou dictd ou nommd, comme ils sont synonimes, qu'il n'y auroit point de nullity."— (Vol. iv., page 133.) It Avas admitted by the counsel for the appellants that it was not necessary that the notary should write " mot a mot " the dispositions of the testament as dictated by the testatrix, that he might put them in proper language and in ^Jropor order, and with whatever amjili- flcations were necessary to give them due legal force and effect, and that the testatrix might dictate from a written and previously pre- pared instrument. And their Lordships are clear that this view is correct, having regard both to the reason of the thing, and to the decisions which have been given upon the particular Coutume, as well as those which have been delivered upon the far more rigorous language of the Article in the Code Napol>, quo la disposition faito ad interrogationem alterius a 6{6 \\'>\)ni do celui qui la faite, elie doit Otro eoiirinnuo ; uu^ssi eela depend de la prudence dew juges." — (pp. 105, 10*).) This niischict of a fraudulent, or false, or extorted or even sug- gested disposition, instead of the genuine expression of the testator's wishes, is certainly not incurred where, as in this instance, the testa- U>r is asked what his wishes are, whore he deliberately expresses thero, and where the instrument which contains thorn, though pre- viously written, is read over to and approved by him. Their Lord- ships agree with the opinion of Mr. Juf ice Taschereau oji this point : " 11 y u peu de doute que dans L cas prtJsont, le testament argutj do faux en cette cause prdsenterait iH raon esprit une idee tres forte de I'expression vraie et complete tics volont(5s de Madame Evanturel." The execution of this testament not having sinned against the mischief which tho law was intended to prevent, the consideration next in order appears to Ix), what interpretation did this law receive from contemporaneous exposition ? This exposition is derived from the " arrits," or judicial decisions on the question, and is evidenced by the usage and practice of Notaries Public. In considering the various arrets cited both in the courts below and at the Bar before us, we must distinguish those in which the testament was merely acknowledged in the presence of two notaries, though twice read in their presence and approved by the testator, from the present case, in which there was an actual dictation by the testatrix of the whole of her testamentary dispositions, though the writing did not follow that dictation. Even with reaped to arrets of the former description, there are three report?'.' '.y Forri6re: that •i that ot Claude by the Appellate i)o' and in the last ■ ivo notaries, but be borno in mind of Macheco, in 1597 ; that of Pisany, in i 6> PoUaet, 1616, which latter airet was also co" . Court ; in which the testaments acknowledgi c ,'. case also signed by the testator in the prcson.o not dictated, were pronounced to be valid, it •>.' that the date of the declaration of the Coutume is 1580 ; these arrets, therefore, so far as their authority extends, have the force of a con- temporaneous exposition. There are, it is true, on the other hand, various arrits lo be found in the books, in which testaments acknowledged and apjjrovod by the testator in the presence of two notaries, and twice read over, have been pronounced null, on the ground of their not having been " dictis et nommis," according to the Coutume ; but there does not appear to be one in which a testament " dicti " as this testament was, has been set asid'3 on the ground, either that the dictation was insufficient, or that tho writing ought to have tollowed the dictation. And lastly, upon this point it is to be observed, that in the cases of Bobitaille v. Bonneville, and Routier v. Robitaille, decided by the court of Queen's Bench for the district of Quebec by Chief Justice Sewell un I Mr. Justice Kerr in the year 1820, in which cases the testament was " inscrit en faux " on the ground that it was not legally execut<;d as a "testament solennel," that is, not "dicti et WILL 849 mem alterius u tSe ; auHsi cela J or even sug- f the testator's mice, the testa- tely expresses though pre- Their Lord- lereau on this lit, le testament it une idee tres 6s de Madame ned against the le consideration this law receive udicial decisions and practice of he courts below ose in which the of two notaries, by the testator, dictation by the ions, though tlie 'ipec'i. to arrets of ;' Ferri^re: that ! that ot Claude ijy the Appellate i!C»"and in the last ,ivo notaries, but be borne in mind )80 ; these arrits, he force of a mm- arrits lo be found and approved by twice read over, r not having been )ut there does not us this testament the dictation was iwed the dictation, at in the cases of e, decided by the c by Chief Justice a which cases the I that it was not , is, not ''dict6 et FORM OF nommi " according to the law and as certified by tne notarv, Mr. Justice Meredith says; and no doubt with perfect accuracy : ' " The evidence adducoti in that case has been placed before us.anorfcct testamentary papers, of every dosoription, vary much according to the stage of maturity at which those papers have arrived. The presumption of law, indeed, is against overv testamentary pai)er not actually e.Ke- culed by the testator, and so execuled as it is to be inferred on the face of the pajter, that the testator meant to execute it. Hut if the paper be complete in all other respects, that presuruptioa is slight and feeble, and one comparatively easily repelled. For intentions, sub modo at least, need not be ])rovetlin the case; that is, the court will presume the testator's intentions to be as expressed in such a pajjcr, on its being satisfactorily shown that its not being executed may be justly ascribed to some other cause and not to any abandon- ment of those intentions so expressed, on his, the testator's part. But where a pa[)er is unfinished, as well as unexecutetl (especially where it is just begun, and contains only a few clauses or bequests), not only must its being untinished and unexecuted be accounleil for as abov'j; but it must also lie provetl (for the court will not presumi! it) to express the testator's inteitions, in order to rei)el the legal pi'esumption against its validity. It must be clearly made to appear, upon a just view of all the facts and circumstances of the case, that the deceiised had come to a final resolution in respect to it, as far as it goes ; so that by establishing it, even in such its im])erfect state, the court will give effect to, and not thwart or defeat, the testator's real wishes and intentions in respect to the propertj' which it pur- ports to bequeath, in order to entitle such a paper to probate, in any case, in my judgment. " " If the instrument'' is (as it clearly is), in legal construction, one in progress merely and unfinished as to the body of the instrument, the legal presumption surely is that, had the deceased not been pre- vented from finishing it, he would have gone on to pr(jvide for his children in a subsequent part of the instrument. I cannot assent to the proposition contended for by one of the counsel, that if a testator dies while the instrument is in progress, that instrument, ' so far as it goes,' be its contents and effect what they may, must be valid. I know of no, principle to that broad extent ever laid down; nor was any authority cited in support of it. The rule which I take to operate in the case of every unfinished paper is this : can the court infer that, by pronouncing for it, it will carry into effect what it collects, from all the circumstances of the case, to have been the deceased's wish ? In that event it will be its duty to pronounce for it, but surely not if it sees reason to believe that, by so doing, it will defeat, or counteract, instead of giving effect to that wish." In another case the same learnewed where the Unman law respecting cmlieils j)revails. Tiie learned counsel for the respondeni relied upon jmssages which be (pioted from writers ujton the law in the provinces of Franco where tho lioman law prcvaileil. It did not in the duchy of Normandy, from which tho laws of Jersey were derived In tho absence of aiiihority, their Lordships have to determino whether it is reasonable that as an absolute rule of law, a codicil is dependant on the will, aiul if the will is void the codicil must fall with it. If a testator, by a codicil iluly e.Kecuted gives a spocitic legacy, having, in a previous will not duly executed given other legacies, it docs not seem reasonable that iiis intention exi)ressed in the codicil should not bo given ett'ect to because etl'oct cannot ho given to the intention expressed in the will. Domat, part. 2, book 4, tit. 1, sect 21, Stracham's translation, in his remarks on article 4, speaking of the rule of the lloman law, says. " We shoidd bo afraid "to tresspass against equity if we should lay it down as a general " rule either that all codicils are valid when there is no instrument, " or that thej' are null when there is a testament which is found to " be null." Their Lordships consider it is a sound rule that when effect can be given to tho intention of a testator it should be given ; and in tho absence of any authority that the rule in the lloman law had become part of the customary law of Jersey, they would rather ailopt a rule of law which gives effect to the intention of tho testator than one which defeats it, leoact to a corporatiost not tet ibt existestce. Abbott v. Fraser ' 54. A testator bequeathed his residuary estate to trustees iu trust to establish a public institute to be composed of a museum, a library and gallery ; and gave directions that as soon as the future institute to be created should have been constituted into a corporation with all the powers neces- sary, the said trustees should transfer to it the estate and effects intrusted to them. The Judicial Committee held, that such legacy was legal. There is no restriction against the right to bequeath estates ■1.. II, V, |4 1 Quebec, 1874 Nov. '26, L. R. VI P. C. 96. K54 WILL I.KCl.tCY TO \ 4'ORFOKATIOW NOT VKT IW EXINTK5«K. to a i-nvporiitioii to be formed in the fiitun>, provided thpre are iiitermediute fiduciary legiitecM. Sill Mkntaouk H. Smith, p. 11 : — The /^c'lioral powiT of tesfnmon- tnrv sitit' ion, III- liiiiilii- SOS of nullity (ions loiitrary rponitiiiiis is i-i'cc'ivo l>y will V disposition i> iii.a.l : " Of tlio soft. 1) ,fr tor its ohjccl •oi\taiMfil ill tli^ iliito 41 *«i'o. H, vinroperty so reputed, without the permission of the Crown." This I 1 Uw Hop. 5 P. C. 277. IBf! *Swf t* 856 WILL LEGACY TO A CORPORATION KOT YKT IN KXINTRNCK. general law may have been oritfinally founded on the lenth article of the ediot, but the law is now virtually contained in the Code itself, into which the article of the edict has been transferred. In the case of the ChaudUrc Gold Mining Co. v.Bcsbarats ', inferred to and line articles of .tions, retained )rms and regu- l, secondly, for or their object may fairly be of the Kriglish on, to establish ■(taiice has been rticles has been but think that le, as being con- •t. 831 is given, of nullity vien- iirected against Code, unless the ty in mortmain them There is h respect to im- no other restric- •pose of founding lended to be im- m of the edict in le, and it was in- tdoes fully, with E,E«A('V TO A CORPORATION 5fOT YKT IW EXISTKXt'E. testamentary dispositions, and in a series of articles under a distinct liead with '' the cajiacity to receive and give by will " (see title 2, eh. ;{, s. 1), should liave omitted all mention of it. Their Lordships, therefore, think they cannot treat the second article of tlic edict as a part of the existing law of the province relating to wills, and if this be 80, there is nothing in that law, so far as the objection now under consideration is concerned, to atfect the validity of the bequest of the moveal)le projicrty. But it is contended, secondly, that as regards the immoveable i)ro- pert3' the devise falls within the direct prohibition containetl in Arts, 366 and 836 of the Code. Art. 366 is limited by its terms to the acquisition of immoveable property only; and Art. 836 must be limited by construction to such property. It is to be observed that Art. 836 appears to be founded on ch. 34, sect. 3, of the Consolidated Statutes of Lower Canada, which section embodieil the provision of 41 Geo. 3, ch. 4, s. 1. Both articles relate to gins to corporations already formed. And the question is, whether a devise like the present, by which the pro- l)erty is given to tiduciaries, and is to pass from them to a corpora- tion only in the event of its being lawfully created with permission to possess it, is within their scope. The devise in this csiso is to trustees for the primary purpose of establishing an institute, and for ett'ecting that purpose they arc to obtain a charter or act of in- corporuiion. It is said that this is, in etfect, devising indirectly lands to a cor- yioration, having no licence from the Crown or other legal power to hold them. But is this really the case ? The devise is, in the tirst instance, to the trustees, and under it they are empowered, at least for a time, to hold and administer the property for the purpose of the trust, and until, in further execution of the trust, a corporation is created with authoritj- to administer it. If a corporation with power to hold the ]iroperty should be granted, the acquisition of it by such corporation would, before it vested, bo sanctioned by law: whilst if it were not createtl, there could be no infraction of the law against holding in mortmain. Apart, therefore, from tiie second article of the edict, there would seem to be nothing in principle or in positive law to render such a gift as the present illegal as a gift in mortmain. The direction to the trustees to jirocure a charter or act to incorporate a body em- powered to hold the property and carry into etfect the objects of the gift, necessarily implies a condition to be fulfilled previously to the vesting of the property ; and the permission of the Crown to hold the lands would of necessit}^ precede their acquisition by the Cor- l)oration, and render it lawful. Commentators of high authority on French law have treated such dispositions, apart trom the Edict, as clearly good, and numerous passages from their treatises to this etfect are collected in the judg- ment of Mr. Justice Badgley. It is sufficient to cite one: Eicard, '■ TnutC' des Donations," No 113, says :— "Lorsque les donations et legs .sont fait s pour retablissement d'un nionastOre, on ne pourrait pas upposer le detiiutdes lettres patentes; 858 WILL I.EUACY TO A CORPORATION NOT YKT IV EXISTENCE. CO qui est juHtc, puree que ces sortcs de dispositions sont prdsum^es faites sous condition, et pour avoir lieu, au cas qu'il i)lai80 au Eoi d'agr<5er r»$tablissement." The same doctrine was sanctioned, and the grounds on which it I'osts were fi lly exj)ouiided by Lord Eldon in tlie case of Downing College, which in its circumstances bore some analogy to the present : Attorney-General v. Bowyer. ' What the ])osition of the trustees would be in case they failed to obtain a charter or act of incorporation, was the subject of some dis- cussion at the Bar. If consistently with the intention of the testator they could carry into etlect tlie purpose of tlio devise, and establish and perpetuate the institute by means of a perpetual succession of trustees, which their Lordships are not satisfied could bo done by the law of Canada, it might be a question whether in such case the trustees would not be ^^ gens de inain-nwrte" and the devise, there- fore, of the immoveable proi)orty ab initio void by virtue of Art. 830 of the Code. In that case Art. 869 might not avail to protect the devise. It is true that by this article a testator is empowered to appoint fiduciary legatees for charitable or other lawful purposes, but only " within the limits permitted by law." Now the Code un- doubtedly prohibits the devise of immoveables in mortmain, and if the will had created trustees with power of perpetual succession, it might, as already observed, have been questionable whether the devise of the lands to such trustees would not have infringed this prohibition, anil be, therefore, bej^ond the limits permitted by law. But their Lordships think that this is not the character of tho devise. It appears to tliem that tho tlevise to the trustees was meant to be limited and transitory, the property remaining in them only until they could execute the ultimate purpose of the devise. It is true the primarj' trust is to establish the institute, but it is a cardinal part of the trust that, " for that purpose," tho trustees are to procure a charter or act of incorporation, and as soon as it shall have boon obtained, they are directed to convey the property to the corjwration. There is no direction to convey to new trustees. The trustees are, indeed, empowered to sell such of the property as they deem expedient, to acquire property and to construct buildings, and to proceed to carry out the testator's designs, but only "up to such time as the property hereby devised to them shall bo conveyed over to the Fraser Institute." Art. 9()4 of the Code provides for the case of a " Legatee who is cliargcd as a more trustee to administer the property and to em- ploy it or give it over in accordance with tlie will, in the event of the impossibility of applying such projjorty to the purpose intend- ed;" and directs that, in" such a case the property, unless the testator has manifested an intention that shall it be retained by the trustee, shall pass to the heir. Their Lordshij)s consider that an impossibility to apply tho property in accordance with tho will would in this case arise, if the trustees failed, after the lapse of a reasonable 1 3 Ves. 724. WILL 859 it pr^sum^es ^)lai80 au Eoi i on which it 5 of Downing ilogy to the they failed to it of some dis- if the testator and establish succession of Id be done by such case the devise, there- ueof Art.83(i to protect the empowered to vvful pur])O80s, sr the Code un- )rtmain, and if succession, it whether the infringed this nitted by law. haractcr of the „ trustees was laining in them B of the devise, tute, but it is a the trustees are soon as it shall property to the o new trustees, the property as struct buildings, but only " up to hail be conveyed ' Legatee who is jerty and to em- 1, in the event of 3 purpose intend- perty, unless the . retained by the consider that an rith the will would ise of a reasonable LEGACY TO A VORPORATIOX XOT YKT IX EXISTENCE. time, to obtain a charter or acl of incorporation, and that in tiiat event the jn-operty would pass to tiie heirs under the above articlo. It was suggested that new trustees might be appointed in succes- sion so long as the execution of the will should last ui. i.er art. !.I28 of the Code, which is as follows , — " The testator may provide for the replacing of tcstanientarj'- executors and adminisirators even successively and for as long a time as the execution of the will shall last, whether by directly naming and designating tliose who shall replace them himself, or by giving them power to apj)oint substitutes, or by indicating some other mode to be followed, r-.ot contrary to law." But it was not in this manner the testator designed that the ]nir- pose of his will should be permanently carried into execution. It is true that he directs that three persons to be named by his trustees should compose with them the tirst board of governors of the insti- tute, which he desired should always be composed of rive persons, and of which Mr. Abbott was to be president for lite, with power to them to sui)ply any vacancy- caused by death or resignation ; but this is the scheme he provides for the governing liody of the intended corporation, as is shewn by the direction which immediately follows it, viz, " that so soon as the requisite charter shall have been ob- tained containing all the i)Owers necessary to carry out mj- tlesigns herein contained," the property should l)e convej'ed to the corjjora- tion. Their Lordshi])s having I'egard to the scheme of the will, cannot think it was the intention of the testator to create, or attempt to create, a board of governors in peri)etuity without the authority of u charter or statute, and so endanger his devise, at least as regards the immoveables, as being an unauthorized gift in mortmain. The third and remaining objection is that the gift failed, being a gift to a society not in existence at the testator's death. If the devise had been to a society or a corporation to bo after- wards called into existence or created without the interposition of fiduciary legatees or trustees, this objection might have given occa- sion to difficulties of great weight. It was said by the Court of rirst instance in DesRivitires v. Ri- chardson ' : — " It may be admitted that, if by a will an immediate devise is made to a corporation not in existence, it will be void, as there is no such corporate body to receive, and it would be equally void even if the corporation were afterwards created without some special and express law to take the case out of the general principle. But it was also said in the same case in the Court of Appeal : — " The second ground of objection is also untenable, for although it is admitted that a legacy is "lapsed (/. p., caduque,) when left to an individual, or to a body politic and corporate, not in esse ; yet tho l)rinciple does not apply to this case inasmuch as the trustees were all alive when the testator made his will, and they received the bequest for the benerit of tho Royal Institution, as soon as it should 1 Stuart's Rep. 218. 860 WILL LEGACT TO A CORPORATION DTOT TET IN EXISTENCE. ])loa>e the Provincial ifovcrnment to give to airy nothing a local lialjitation and a name." Tliat caHC no doubt tlitfcred in siome of its facts from the ]ir'>scnt, as the Royal Institution had been, in some sense, incorj)orated lieforo the date of the will ; but the principle is asserted in it that the inter- vention of trustees will, in some cases at least, prevent a la])se. Their Lordships on this point, having regard to art. 8()l», whicli jtermits the appointment of fiduciary legatees for charitable and other lawful purposes, and to art. H38, whicli, in the case of legacies suspended after the testator's death in consequence of a condition ov 8ul)stitution, declares that the capacity to receive is to be considered relatively to the time when the right comes into elfect, are of Dpinion tliat there has been no lapse in this case, and that the trustees may carry the purpose of the testator into etfect if and when the ccjrpo- ration of the Fraser Institute is duly incorporated. The transfer of the propertj' to the corporation is directed to be made by con- veyance from the trustees who, in then making it, will execute the lawful purjiose lor which the jjroperty was entrusted to them. It is evident that the charitable and lawful purposes mentioned in art. 809 were not meant to be confined to such trusts only as may be created for the lienefit of some definite persons. The use of the word '■ i)urposes " indicates that bequests may be made to uses for general and indefinite recipients so long as the purpose bo charitable or lawful, and tlie bequests be within the limits permitted by law. Their Lordships, for the reasons given, think that the tlovise in question complies with these conditions and ought to be sustained ; and the}' will humbly advise Her Majesty to reverse the judgment of the Court of Queen's Bench, and direct that the suit be ilismissed. But, considering that the law of Canada on the questions arising upon this will was in an unsettled state, their Lordshijis think that the heirs of the testator might reasonably dispute its validity, and that the parties, therefore, should pay their own costs of the litigation below and of this appeal. I^EOACY TO ADULTERINE BASTARD. Kino v. Tunstall ' 55. The conjoiut operation of the Imperial Act 14 Geo. Ill 1'. 83, and of the Canadian Act 41 Greo. Ill c. 4, is to abrogate the old law which prohibited gifts by will to adulterine bastard-s. 56. The said Canadian Act was only a declaratory Act as applied to the Imperial Act. 57. An adulterine bastard to Avhom a gift was made by substitution before the passing of the said Act, will be, as substitute, entitled to reoeiA'e the substitution opened in his favour after the passing of the Act. For their Lordships' reviarks Se.e Leoacy : cnpucity of' the le'^alee. 1 Quebec, 1874 July 21, L. U. VI P. C. 55. WILL 861 ailJTITAL WILLS. iinsi ii local Dknyssen v. Mostert ' the jiV'iscnt, rated before ,at the inter - I lai)se. . 8(;y. which aritahle and e of leiiacics condition oi' )e considered re of ojiinion rustees may en the corpo- ic transfer of nade by con- execute the them, mentioned in aly as may be e of the word les for general charitable or by law. the devise in be sustained; 1 the judgment , be (.lismisBcd. istions arising lips think that rt validity, and if the litigation . TL-Ni=TAI,L ' ct 14 Geo. Ill is to abrogate to adulterine iratory Act as was made by ct, will be, as opened in his rdslups' remarks 58. According to the Roman-dutih law, the wile has alone the right to dispose by -will of her share in th»? community between her and her husband. 59. The principles of the Roman-dutch law in respc.-t to mutual wills made by hu.sband and wile were thus ex- plained bv the Judicial Committee : Sib Ef)BERT Collier, p. 52(j : — By tho Koman law the property of husband and wife was separate, and each was entitled to dispose of it at pleasure, either during life or by will. Tho customs of the Dutch introduced community of goods between husband and wife, the husband beinf the administrator of tho pro- perty, and holding the relation of curator or guardian to thj wife; and this community of goods was enforceil and preserved by a strict prohibition of all contracts relating to j^roperty between husband and wife. On the death of either the survivor took half of the property ; the other half, in the absence of testamentary disposition, going to the heirs of the deceased. Both husband and wife retained the jjower of disposing of their reepectives shares by will, and any agreement renouncing this power was void: Voet ad FandectasIAb, XXVIII, tit. 3. s, 10. By custom the form of mutual wills was introduced, which, some- times adopted by persons not related to each other, became the common form of testamentary disposition between husi and and wife. Much authority (as was to be expected) is to be found bear- ing upon wills of this descrijition, and the following general rules of law ''lay be treated as clearly established ; FiiStj that such wills, notwithstanding their form, are to be read as separate wills, the dispositions of each spouse being treated as applicable to his or her half of the joint property. Second, that each is at liberty to revoke his or her part of the will during the co-testator's lifetime, with or without communication with ■ the co-testator, and after the co-testator's death. In support of these general rules of law may be cited : Grotius' Introduction to Dutch Jurisprudence, B. 1, c. v., sec. 25 ; B. 2, c. XVII s. 24 & notes. Huber's Ileden daaghe Iteghtsgeleeirheid B. II, c. XII ; Scharex nota: ad Grotium, B. II, c. XV, s. 9. Vander Keessel, Thes. 298 B. II, c. XVII, s. 24; Vender Linden, institutes of the Laws of Holland, B. 1, ch. IX, s. 3, pi. 5, p. 129 ; and other authorities referred to in the judgment of Mr. Justice Denyssen. The general rule being established, it next becomes necessary to ascertain the exceptions to it. They are stated by Grotius, B. II, c. XV, s. 9 (translated by Herbert). The substance of this doctrine, though expressed in varying terms, is to be found in the leading authorities from tho time of Grotius to the present day. 1 Cape of Good Hope, 1872 April 23, VIII Moore 502. 8(J2 WILL ' j ■■■V' ••*>'', .-J'; •*-^.: m MVTITAL, WIM^S. Frtn Leenwen, in his Ocnsura Forensis, B. Iff, c. XI, s. 7. A passage to tho same effect is to be found in Van Leenwen' s com- mentaries on the lloman-Duteh Law 13. II, c. Ill, s. 8. Their Lordships understand tho expression, " postquam her'^dita- temprimi morientis adierit " — '" after he has adiated the inheritance of tho predecessor" as equivalent to the " acceptance of benefits" spoiion of by Grotius. " Adiation is u terra well known to tho lloman-Dutch Law, and although Mr. Justice Connor in tho case of Oosthuysen vs Oosthuysen may bo correct in saying that its technical sense as applicable to the institution of an heir may have become obsolete, it appears to be used by Van Leenwen and other writers, when applied to tho survivor of two co-tostators under a mutiuU will, ia a sense equivalent to tho adoption and confirmation of the will by tho acceptance of benefits under it. Many extracts from the HoUandische Consultation, translations of which certified by tho Registrar of the Su])remo Court of the Colony, have been sent to their Lordships, are in accordance with these doctrines, (among them may bo cited vol. I, consultation 50; vol. II, consultation 53 ; vol. Ill, consultation 3 ; vol. IV, consultation 43). To the same effect are extracts translated and certified in tho like manner from Van der Ber. 8), may be shortly stated as follows : — 1. That in the circumstances of the case such a clause is contrary to public order (" I'ordre public,") inasmuch as the law requires the observance of certain formalities in the execution of wills, the test- able capacity of the testator, and the absence of fraud and undue influence; and the strict application of such a clause would favour the non-observance of what the law forbids by deterring persons from disputing wills which on one or other of the above grounds ought to be declared void. 2. That such a clause, unless under exceptional circumstances, and in the absence of probable or reasonable cause for disputing the disposition, ought to be considered as inserted only in terrorem and deemed to be comminatory. 3. That the Resijondents in contesting the will had not acted in the spirit of chicanery, but had a just and probable cause for sus- pecting the validity of the will and requiring it to be proved by legal proceeilings : and that the application or non-application of such a clause is, in the dii'ection of a Court of Justice, to be exor- cised upon its view of the whole of the matters in dispute " I'en- semble du litige." 4. That in the opinion of the Court it was not the intention of the testatrix to deprive her daughters of their small legacies if they disputed the very valuable gift to their brother, on all or any of the grounds upon which the ^'alidity of the testament was in fact dis- puted, but only in the event of their disputing the justice of tho distribution which she made of her property, and in particular tlie clause by which she discharged her from the liabiHty of rendering any account as her agent. The formal judgment of the Court of Queen's Bench (Record, pp. 274, 275), in support of the conclusion that " the clause, under the circumstances of the case, and considering the nature of the contes- tations of the testament by the Respondents, ought to be deemed ' non ^crite,' " adopts and specifies the second and specifies the second and third of the above reasons. It is to be observed, how- ever, that this document, which is the judgment under appeal, does not expressly declare the clause to be contrary to " I'ordre public," though many of the reasons given by Mr. Justice Badgley in the judgment delivered by him seem to favour such a conclusion ; and further, that the words " vu la nature de la contestation du dit testa- 55 866 WILL PROHiniTION FROM CO^iTENTINO A mont," taken in connection witlj the judgment delivered, make it uncertain how far the tinal judgment of the Court of Queen's Bench proceeded on itH erroneous view of tlio Hupposed abandonment of tiie gi'ounds of fraud and unique influence which haw already been adverted to. The 760th article of the Code Civil (by which it is agreed on uU hands that this cawo is governed), is in these words ; '' Gifts, inter vivos or by will, may be conditional. An impossible condition, or one contrary to good morals, to law, or to j)UDlic order upon which a gift inter vivos depends, is void, and renders void the disposition itself, as in other contracts. In a will such a condition is considered as not written, and does not iiiimil the disposition." This clause must be read in connection with the 831st, which declares that " every person of full age, of sound intellect, and capable of alienating his property, may dispose of it freely l)y will without reserve, restriction, or limitation, saving the prohibitions, restric- tions, and causes of nullity mentioned in this Code, and all disposi- tions and conditions contrary to public order or good morals.'' It apjiears to their Lordships that these articles sulHce to dispose of several of the conclusions on whicii the judgments under appeal have been shown to be foundetl, of much of the reasoning of the learned judges in support of those conclusions, of many of the authorities cited at the Bar from ancient French writers, and of the arguments founded on those authorities. For example, these articles of the Code, of which the tei'ms are, in substance, hardly distinguishaljle from those of the texts of Justinian, leave no ground, if ground there ever were, for the pro- position, repudiated, as Merlin (titro " Peine Testamentaire,") shows, by the best authorities, that the Theodosian Code, and, there- fore, the Law of the Anthonies on this point, ought to prevail over that of Justinian, in countries governed by the Code of Paris. They also sweep away all the tine distinctions between ^ anal, and purely conditional dispositions which civilians have founded on the motives, real or supposed, of testators. But they do more. By declaring that a testator may imi)Ose upon his gift any condition not prohibited by the Code, and not contrsuy to law, public order, or good morals, they seem to cast upon Courts of Justice the duty of giving etfoct to all conditions, which do not fall within the above exceptions, accord- ing to the plain meaning and intention of the testator to be collects ed from his language. This consideration would dispose not only of the fourth, but of the second and third of the above-mentioned grounds for Mr. J. Taschereau's original judgment. Of the fourth, it may be remarked that it proceeds on one of those forced cons- tructions of a testament which ax'e tantamount to the making of a new will for the testator ; and that it would in effect make the whole clause nugatory, since it would be idle to dispute particular clauses in a will duly executed by a testator of undisputed capacity, having a testamentary power over the subject matter disposed of, on the mere ground of the alleged injustice or unfairness of the disposition. The second and third of the above mentioned reasons, being those adopted by the Court of Queen's Bench, are closely connected. It is WILL 8G7 vcred, mftkc it Quoi'ii's Bench ibiuKloiHiicnt of (4 alrciuly been is ngrei'il on all ; ; " GiftH, inter le condition, or der upon which the disposition on U considered n." This clause jh declares that and capable of by will without libit ions, restric- !, and all dispoai- )d morals." eufflce to dispose Its under appeal reasoning of the of many of the •riters, and of t he •h the terras are, of the texts of were, for the pro- Testamentaire,' ) 1 Code, and. tliere- ht to prevail over le of Paris. They ^ enal, and purely ed on the motives, By declaring that ion not prohibited n% or good morals, of giving ert'cct to exceptions, accord- stator to be coUect- l dispose not only le above-mentioned nt. Of the fourth, those forced cons- to the making of a feet make the whole e particular clauses :ed capacity, having disposed of, on the S8 of the disposition, reasons, being those lely connected. It w PROIIIiliriOX rilOM t'O^TKNTINO A stated liy Merlin ('' Ri'])ert<)iro do Droit," vol, ix, \). 227, titro "Peine Testaiiientairo "j tliat little etfeel is given in practice to clauses of this kind ; that '' Paul de Cast res and a number of other authors regard them as purely comminalorj" ; so that the penalties which they proscribe are not incurred as of absolute right by ii breach of the condition, hut are inflicted only in very rare ea-es in which the suits brought by those whom the testator has forbidden to bring them, are found t(j have no other foundation than a spirit of calumny and vexation." This implies not that the condition is in itself unlawful, or against public policy, but that either by an arbitrary rule of construction it is to be taken to import, however general may be its language, that the testator intended only to forbid the contestation of his will upon frivolous and vexatious grounds, or that there resides in the courts of Justice a discretionary p(jwer of giving or refusing to give ell'ect to it, according to their view of the motives and conduct of those who shall be found to have infringed its letter. There is nothing in the ('ode to warrant either of these pro|)o>i- tions. The latter seems to re>t ujiuii the practice of the old French Parliaments; liut the sort of ilispensing or nualiiying jiower so claimed and exercised by them has been condemned by the best Jurists, and repudiated in the (•()urts of Lower Canada, as is >liown by the authorities cited by Chief Justice Meredith, aiul in the notes of Mr. Justice Caron's judgment. And as the decisious of courts claiming to exercise this anomalous power are the foundation (jf the rule of construction assumed in the former of the two proj)ositioiis, and the rule itself is oj)j)0.>ed to the ordinary princij)les of construc- tion, their Lordships think that that idso, if it ever existed, must be treated as obsolete; and that, in order to support the judgment under apjieal, the condition in question must be shown to fall within the excejitions e.xj)resseil by the Code as being impossible, or con- trary to good morals, to law. or to public order. Impossible, or contrary to good mm'als, it clearlj- is not ; it is not prohibited by any positive law ; the disposition which it is designed to protect is neither contrary to hiw nor jtiiblic order, since the testatrix had an absolute power of disposition over her whole estate; and the question is, therefore, reduced to this, viz : Js this clause contrary to public order, because it is designed to prevent the doing of that which it is against public order to discourage, in con- sidering this question their Lordships will treat " public order " as identical with what in this country is termed " jiublic policy," though the latter is perhaps the larger of the two terms. And they must deal with the proposition laid down by Mr. Bowring, and indeed involved in the judgment of Mr. Justice Taschereau, viz., that every condition which implies the prohibition to dispute a will as a whole, as distinguished from a particular clause in it, upon any grounds which atfect the legal validity of the instrument as a testa- mentary disposition sirs against public order, and must be treated as " non ^crite." They must do this because as they have already shown there is no ground for treating, as the majority of the judges of the Court of Queen's Bench have treated, the Kespondents as M 8(38 WILL I rHOIIIIIITION rROM «'ONTRMTINeon obtained by fraud, or tlie exercise of undue intluonco from a jtorson of imperfect caiuKuty. The question may bo considered on principle, and on authority. Upon principle, it is to Im observed that tho prohibition (iannot be absolute and can be invoked only where tho valiility of a will has been unsuccessfidly contested If there be a clear and jmtent defect in the formalities attending the execution of tho instrument; or if the incapacity of tho alleged testaior bo clear and notorious, heirs or other parties interested will, of course, contest the will, and contesting it successfully, will sot it aside with tho dauso of forfei- ture. On the other hand, it is not easy to moo why a testator may not protect his estate and representatives against unsuccossfnl attom|)t8 to litigate his will, by saying to a legate: — ' I, being masterof my own bounty, and free to give or to withhold, give you this legacy subject to the condition that you do not dispute tho general disposition of my CHtato. You may contest the validity of my will if you please ; but you will do so at tho peril of losing, If it bo established, what it gives you." Then, is thia view of tho questicm opposed to tho authorities? Tho French authorities are reviewed at great length by Chief Justice Moreditli on tlio one side, and Mr. Justice Baclgloy on tlio other Tho result of them seems to bo — First. That such u ciauso would unquestioiuibly bo a conditio rei non licitoi, and therefore of no ett'oct, if it wore designed to protect a disj)osition contrary to public order, which is not hero tho case. Secondly. That in tho ancient jurisprudence there may bo found texts which favour either .side of the questicm, whether ettect ought to be given to such a ciauso, when it goes to prohibit tho contesta- tion of the will as a whole; and some authorities which seem to recognize a distinction between contestations founded on the non observance of tho formalities for tho execution of wills ; and con- testatioiiH upon other and more gonoral grounds. But, Thirdly. That it is clearly established in France, by the concur- rence of the best modern text-writers, and tho decided cases, that such a c(mdition is not contrary to law ; and will bo applied if on any ground, the will be disputed unsuccessfully ; or, inotner words, that the party disputing it does so at his own risk and peril. Upon the second point it is, however, to bo observed that one, at least, of tho most important authorities cited by Mr. Justice Badgloy is capable of an explanation which would bring tho case supposed within the iirst category. IIo cites from Furgole tho fol- lowing passage : — " Si dans un testament qui est nul par quelquo d^faut de forraalitd, le testateur dit : " Jo veux quo raon testament soit ex^cut^, et si quelqu'un de mos suocesseurs legitimes I'uttaquo WILL mi) llio j^ritiiiulH loro (li>o« not- ion tiiUcn by Hocuring thu loon ()lwcrvoii luitliDritv. on (!ium<)l iH! ol" a will hiiH jmtont detect i-iiment ; or it' lorioiiH, heirh the will, and aiiwe ol't'orlei- i to8tati»r niuy I unHUccesrtfiil Lo.— •' I, l>oi"g hold, give you ol dispute the the validity of I of lowing, 'f it uthoritio8? ongth by Chief Jadgloy on the be u conditio ni nod to protect a ire the case, ■o may bo found hor effect ought )it the contosta- which Hcein to ided on the non f willw i and con- \\xi, 0, by the concur- jcidod caHes, that bo applioti if on r, in other words, and peril, jrvod that one, at by Mr. Justice Id bring tho case Furgole the fol- , nul par qnolquo ,0 mon tostamont <5gitime8 I'attaquo FKOIIIHITIOW FHOM 4'ONTRNTI!«» A pour le faire cnHHcr, j'inHtiluo h(^rilicr un tol liopilal," uno telle dis- |)OHition Hcra iiullo et inutile r|uand n\(^\\w par quehjue privlMgt^ dc I'lu^ritior inntituiS, on can do contravonti(»n, lo festainont no niuni|iU'- rait d'aiicuno formalild, pour lo fairo valoir it, Hon (^ganl." It ih obviouH that thin in a cumo in which the toHtutor, having no original intention of bounty towardu tho hoHoital. mal<(^H the honpital, wliiili under a upecial law waw raj)ablo ot taking uniler an informal will, liiH heir, in tlio event oidy of hiw legal heirs dJNputing the (li.s|io.sitii>ni> ofhJHwill, on tho ground of its informal o.xooution. Tho object, therefore, of tho condition iw to enable the real objooln of his bounlv to tal{«! under an instrument wliich tlio law declares to bo invalid, and HO to proto( t a disposition contrary to public order. Tho J{os])ondents moot tho modern authorities by saying that, as thoy coiiHist of tho to.xts taken from the works of commentators on tho Code Nap(»loon and tho decisions of tho French courts since Uic promulgation of that Code, thoy have little or no a|)plic.ation to '.lu- present case. Thoy are certainly not authorities which bind the courts of ('anada. Hut \\wy seem to their Lordships to be, novor- tholosH, o.xtromely valinible aids towards the right dotermituition of the question whether th(! clause* under consideration is contrary t(» )ublic order. Tho (juostion is certainly not conclusively determined ly tho ancient authorities. t)n this j)oint it is sufHciont to observe that Jlicard himself, who is one of tho.se most in tiivour of the Iles- j)ondonts, admits that a jtonally is allowable when designed to defend a lawful dis])osition, although he goes on, in article 1548, to show that the ])enalty is often, though not always, treated as commina- tory. And the very liict that, under tho old system, courts of .lustico exercised a (liscrotionary jjowor in the application of such clauses, shows that they wore not absolutely void, or (in French phrase) to bo doomed " non (Jcritos," as being contrary to law or public order. We find, then, tho modern French jurists, whether writing as commentators or actually administering justice in tho courts of law, f [ferent import was )nd does not now 3n, for, upon that 5 to the revocation pere cited, and yet J insertion of the IS of such a revoca- ;e, referred to in 1 irought forward in )f a subsequent one. 1 Burt V. Burt, the the appointment of el by reference to nting an executor ; t the revocation is stances were indis- im the mere execu- te need not further it was decided upon it will were wholly pported by the pro- so very complicated be drawn from that and it is not quite RETOVATION OF correct, as stated in the marginal note, that the two wills were nearly of similar import. In the one case the property was given to the two sons; and by the second will, to one son only. Jiut there is a case appended in a note to Moore v. Moore, namely, the case of Passey v. Hemming (1 Phill. 431»j, in which we have the high autliority of Sir William Wynne, to tlie tbllowing effect : — •' Now, I think, that in all the cases in which it has been held that tho Ibrmer will was revoked by the cancellation of the latter, it appears that the intention of the deceased was varied ; consequently, it was proof that he departed from the intention of the Hrst paper." We will next advert to the case of Henfrey v. Henfrey. This was simply a case of construction, whether two papers should be taken together, or whether the latter was a i-evocatiou of the former. We see no reason to doubt the correctness of that jmlgmcnt, nor can we see how that case applies to the present. There the second pa])er disposed of the whole property of the testator, and was necessarily a revocation of the former. One more case decided in the Eccle- eiastical courts remains to be noticed, upon which the learned Judge in the court below seems mainly to have founded his Judgment, the case oi Plenty v. West (1 Ilobert. 2(34). Upon this case we will lirst observe, that the two wills were essentially different ; that no executors were appointed by the lirst ; that executors were ap- pointed by the second; and theonly ground of argument for uniting the papers was, that the whole of the personal estate was not dis- posed of by the second will. It is true, that Sir Herbert Jenner Fust, in his judgment, relies upon the fact, that the testator called the will of 1838 his last will, out that is only one circumstance in con- junction with others, on which he founded his decision. Now, let us consider how these authorities boar upon the present case. There is not one authority which lays down the proposition that the execution of a subsequent will destroyed animo reoorandi by the testator, the contents of which are not known, revokes a prior will. On tho contrary, in all the cases where revocation has been held to be effected, there has been proof of a difference of disposi- tion. These considerations alone would induce us to doubt the cor- rectness of the iudgment in the court below, in the case now under consideration ; out the very foundation of that judgment appears to us to bo unsound ; that judgment is mainly based upon the evidence that the latter paper contained the words, " This is jny last will and testament." We are of opinion, that these words do not import that the paper contiiined a different disposition of the property, nor that the mere fact of so calling it could possibly render it a revocatory instrument. We think that the interpretation put upon these words by Lord Truro, in his judgment in the case of StocUlart v. Grant (1 Macq. Sc. Ap. Gas., 171), is the true meaning to be attributed to them. With regard to any auxiliary circumstances in this case, we think that the evidence wholly fails to render any assistance to the case of the Eespondent. Considering, therefore, that the Respondent, upon whom the onm probandi lies, has failed to prove what the law requires, the execu- tion of a subsequent will expressly revoldng the former, or of 880 REVo<;ATioir or WILL dilforent contents, wo must reverse the judgment of the court below, and pronounco for the will propounded by Mr. Cutto. Each party to pay their own costs in this court. MVCX'ENMO.V DUTY. liELii V. The Master of Kquity ov the Superior Court OP Victoria ' 70. In Englaud, the probate duty is a stamp duty payable according to the value of the estate referred to in the will proved. In Victoria, it is more in the nature of succession duty, and is payable by the estate, whether the will is proved or not. Armytaoe v. Wilkinson '' 71. Where a testator bequeathes all his property, real and personal, to his widow and children, with limitation in favour of his grand-children, and in trust in the hands of executors, duty is chargeable only at the lower rate contained in the Statute, that is five per cent. Blackwood v. The Queen ' 72. The probate duty is a tax on the property to which probate gives title, and is levied at a time prior to adminis- tration The legacy duty is imposed on the property which actually falls to the legatees and is levied at the time when the enjoyment accrues. The Act of 1870 : " Duties on the estates of deceased persons", does not make any such distinction ; it imposes a single duty on the property of deceased persons. See Appeal : WRIT OF ERROR iisdem verbis. WRITS OF PREROGATIVE HABEAS CORPOB. In re Belson * 73. The Lord Chancellor in England may issue under his fiat a writ of habeas corpus pursuant to an order of the court of Chancery in vacation, and this writ of habeas corpus sealed in the office of the Clerk of Records and Writs, is a common law prerogative writ which the Royal court in Jersey is bound to register and to execute. HANDAMvs. See Mandamus. 1 Victoria, 1877, April 24, L. R. II Appeal Cases 560. 2 Victoria, 1878 Feb. 22, L. R. Ill Appeal Cases 355. 3 Victoria, 1882 Nov. 22, L. R. VIII Appeal Cases 82. 4 Jersey, 1850 Jan. 24, VII Moore U4. WILL 881 ho court below, Each party 0. Court OF Victoria ' 1 duty payable to in the will ! of succession jr the will is ^ Wilkinson ■* iperty, real and . limitation in 1 the hands of ■ rate contained 1. The Queen ' perty to which rior to admiuis- sroperty which the time when scire faci4s. The Queen v. IIuohes ' 74. The proper remedy against charters or grants of the crown which are contrary to law, or uncertain, or injurious to the rights and interests of third persons is by writ of si-ire facias. And, if the grant or charter is to the prejudice of any person, he is entitled as of right to the protection of this l)rerogative remedy- The Eastern Archipelago Com/mni/ v. The Queen, 2 E. (^ ^. 94 ; The Queen v. Clarke, 7 Moore P. C. Cases 77. 75. The writ of scire facias to repeal i>i' revoke grants or charters of the crown being a prerogative judicial writ must be founded on a record. 76. In South Australia, leases of waste lauds sealed, but not recorded in any court, are not record, and cannot be annulled by scire facias. Lord Chelmsford, p. 448; — For, as was isaid by Chief Justice Jervis, in the case of The Eastern Archipelago Company v. The Queen 2 JE. & B. 9-1, " To every crown grant there is annexed by the common law an implied condition that it may bo repealed by Scire Facias by the crown, or by a subject gricvcl using the pi^rogativo of the crown upon the fiat of the Attorney-General." 1 South Australia, 1865 Dec. 22, III Moore N. S. 439. es of deceased m ; it imposes a ma. In re Bel son * r issue under his rder of the court beas corpus sealed fits, is a common >urt in Jersey is .■)« 1 ll 1 ^m- !1h t ; 1 ■ -K; APPENDIX "A" BRITISH COLONIES ASD NATURE OF THEIR CIVIL LAW. OENERAL RKMAUKS a. The authority of the Hritiwh Crown over the uumorou« colonioa which form part of the empire is derived from vurioiiw HoiircoH. Some of them are coiintricB conquered over the native inliabitaiitH or over independent States ; otliers were uninhabited countries dirtcov- crod and peopled by English subjecth — these are generally called "settlements' ; others again are lands peopled by infidels and acquir- ed either by treaty or by progressive settlement which introduced into them, first, European civilization, and afterwards, as a consc- (|uence, English authority. In conquered countries, as a general rule, the existing laws of the inhabitants remain in force. In settlements, the English law is alone applicable. In colonies created by settlement, conquered, or obtained by treaty with the infidels, the law of Kngland is applied to Brit- ish subjects, and the native law to the infidels. However, where no native law is found for special cases, recourse is had to English law. Of course, these principles may be, but seldom are, modified by treaty or by the authority of Parliaments. In all the colonies, the criminal law is that of England. Hut, to a greater or less extent, both the civil and criminal law have been, in every colony, altered by Parliaments, Charters of justice. Crown's and r -varnors' ordinances. b. Maltese Law. — The laws of the Island of Malta were codified, in 1784, by the Great Master of the Order of Malta, Emmanuel de Eohan. They consist of the Sardinian law, amended by the local ordinances. In cases not provided for, the dispositions of the Sardinian civil code or of the fioman law as found in the Corpus Juris civilit are applied. c. French Xaw.— France, before the Code NapoUon, which came in force in 1803, was divided in pays de droit icrit and pays de droit coutumier. The first comprised all the provinces which admitted .,^»,,:L^dLmSi s J *«! I ' 884 APPENDIX "A" the Eoman law ; the others were governed by their own CuHtoms. There were three hundred and nixty CuHtoms ; sixty of which were feneral, and three hundred, local ; the principal ones were those of *aris, Orlians and Normandie. Most of them were reduced to writing. Notwithstanding this distinction, the Eoman law was everywhere, throughout France, considered as the common law. The only difference was that in the pays de droit coutumier, the Roman law was ajiplied only in the absence of any provisions in the Custom (Loyseau liv. 2. ch., 6, 5.)- The Code NapoUon has abolished all previous laws. d. Roman-Dutch law. — The Roman-Dutch law is the old Roman law as altered by the ordinances of the kingdom of Holland. Hollanders or Dutchmen where in the last centuries great navigators. They discovered and extablished numerous colonies in Asia and Austra- lia, a great number of which are now under the authority of the English Crown. In these countries, they introduced their laws, and the inhabitants have preserved them until our time. A Dutch code was made in 1838. e. Spanish Law. — The kingdom of Spain established its laws in the colonies created by it in America. They were the old Spanish laws having its sources in ancient usages, Canonical law, Roman law, decisions, decrees and Government ordinances. Spanish laws have been since codified. COUNTIUES. COLONIES. Europe. Channel Islands. Malta Gibraltar. Heligoland . Jersey .. Guernsey- Isle of Man.. REMAKKS. Sardinian. English. Danish. Ceded by Franco : treaty of 1874. See h. Conquered over the Spanish inl704. Ceded bythe trea- ty of Utrecht in 1713. Eng- lish law was introduced by charters of justice : 7th Geo. I; 13th and 2llth Geo. II; 67th Geo. m. Ceded by nenmark in 1814 ; treaty of Kiel. The Da- nish law is very nearly similar to the Bonian- nutch law. This island is governed by a civil code in 14 articles. Ceded to Germany in 1800. Seed- Vfench(Customof Normandy) Ceded by Franco In 1360: treaty of Brotigny. See c. do do English. Brought tc the English crown with the duchy of Normandy by Henry I, in llOU. See c. BoughtfromEarl Derbyand Duke of Athol, in 1766 . See a. )ir own Customs, ty of which were les were those of ivere reduced to Eoman law was ^he common hiw. )it coutumier, the iny provisions in 'ode NapoUon has the old Eoman law Hand. Hollanders navigators. They Asia and Austra- e authority of the )duced their laws, ar time. A Dutch shed its laws in the le old Spanish laws I law, Eoman law, Spanish laws have REMAKKS. ■Ceded by France : treaty of 1874. See b- Conquered overtho Spanish in 1704. Ceded by the tre:i- ty of Utrecht in 1713. Eng- liah law was introduced by charters of justice : 7th Geo. I ; 13th and 2«lh Geo. 11; 67thQeo. in. Ceded by Denmark in 1814 : treaty of Kiel. Tlie Da- nish law is very nearly similar to tlio Roman- Dutch law. This island is governed by a civU code in 14 articles. Ceded toOermanyln 1890. See d- Coded by Franco in 1360: treaty of Bretigny. See c. Brought tc the English crown with the duchy of Normandy by Henry 1, in llOU. See c, BoughtfromEarl Derby and DSkoof Athol, in 1765. See a. APPENDIX " A " 885 COUNTRIES. COLONIES. LAW. REMARKS. Asia. British India. Bengal ( l>ort Wil- liams^) North West I^ro vinces {Oudli, Allahabad^ and Agra^j Roman-Dutch and I native Conquered over the Mogola in 176,'). Capital : Cal- cutta 1. See a. English and na- tive Punjaul) Central Provinces British Uurmah IRangoon^) Assam Madras (it/aduca') Bomijav. British PosseS' sions in the East do do do do do do Conquered in 18(i3. See a. Conquered in l»4fl. See a. Ciipital: Lahore. 1. Constituted in I8fil with differents territories con- quered over the natives. See a. {Ceded by the Burmcses in I 182G. See a. do do Ceylon Aden ..'Ceded by the Burmcscs in I 1826; incorporated in 1833. I See a. Roman-Dutch and native ceded by the Rndjah of I liidj.'inafrnr in lUSii. Set i a, (J. do do ... KrouKlit to the Ennlish I crown by Catherine, a I I'ortugucse princess, wife I nf Charles II, in 1661. I See u . Homan-Dutch .. . Conouered in 183U, over the I ' Dutch. Seea,il. STIIAITS SKTTLH- MENTS COMPRISING. (Jo Jo Conquered over the Dutch ■", in 1736. Ceded l)y the I treaty of Amiens in 18U2. ! See a, d. Separated from India in 1868. Except in Wellesley , and Malacca, (lie I'^nglisli I Common and Statute law, previous to 1826. was introduced in the Straits { Settlements. It was modi- I fled by the Indian Act in 1867, and since by I iocal ordinances, Singapore | English and na-j tive Settlement of 1819. .See a. Penang or Prince of Wales Island Wellesley.. do do ... Ceded by the Ma"ose, in 1766. See a. Roman-Dutch and ^ native Conquered over the IHitch I in 1797. Seeu, d. 1 In the mports of legal cases, this town is given some times as being the colony from which the appeal came. 886 APPENDIX " A " COUNTKIES. COLONIES. LAW. 1 REMAHK8. Asia. British Posses- sthaits skttlk- mkntscompiiising: r Dinding English and na- tive Conquered in 1S27. See a. sions in the East Roman-Dutch and native Cocos or Reel- ings Islands.. Hong Kong Cyprus. British Norlli Bor- neo ' Labuan Conquered over the Dutch in 1826. .See a, d. Settlement of 1823. See a. Coodcd by China in 1842 : treaty of Nankin. See a. lly a convention between Kngland and Turkey, in 187B, this colony wras put under British government for as lonK as Hatoun and Kam may be kept by Kussia. Conquered over tlie Maltese and Javanese pirates in 1840. Crdcd by tlie Sultan of Brenei in 1877. See o. Ceded by llie Sultan of Borneo, in 1346. See a. Ceded by the Sultan of Borneo, in 1842. Consiilur Court establislied in 18(ia. Consular Court. Ensrlish English and nii- tive 1 do do do do do do do do English do Sftramak ' China and Ja- pan Shanghai Turkey Constunlinoplt'.... Quebec (Lower Canada before lilt confedera- tion of \m~)... America. Canada French {Custom of l'aris\ Conquered in 176(1, ceded by Franco in 1763 : treaty of Paris. A Civil coilii came in force the 1st August 1866. The previous laws are not abolished. The Code is very nearly si- milar in principle to tlie Code NapoI6on. See c 1 Since the let January 1890, the administration of Gritigb Borneo, Labuan and Saramak has been transferred to the British North Borneo Company. EMAHKS. red in 1827. See a. red over the Dutch !6. See a, d. lent of 1823. See a. ; by China in 1842 : y of Naiikin. See a. convention between land and Turkey, in , this colony was put ir Uritiab government IS lonK as Batoun and s may bo kept by sia. icred over tlie Maltese Javanese pirates in ). Ceded by tlio Sultan Irenei in 1877. See a. a by tlic Sultan of rueo, in 1346. See a. d by the Sultan rneo, in 1842. of iilur Court established 18U5. lular Court. quercd in 1750, ceded by ranco in 1763 : treaty of aris. A Civil coile camo I force the Ist August )60. The previous laws re not abolished. Tho ode is very nearly si- illar in principle to the ode Napolfion. See r. Borneo, Labuan and ipany. America. Canada. APPENDIX " A " 887 Ontario {Upper Canada before the confedera- tion of 1867)... NewBrunswick Nova Scotia., English. Prince Edward Island British Colum- l)ia Manito])a.. North West Te.-- ritories Newfoundland. Britisli Guiana- British sions in India .. Posses West ' Demerara.. Essequibo. Berbice do do do do do do do Roman-Dutch . Hermuda English. do do British Honduras. Bahamas or Key's Islands! Lucaj/et) do do Peopled by English. Ceded with Quebec See a. Fart of Acadia. Conquered over the French in 1666, Ceded in 1713. The Aca- dians were dispersed and replaced by English set- tlers. See a. Part of Acadia. Conquered over the French in 1668. Ci'ded in 1713. Capital. Halifax (1.) See Iftw Briinnvkk. Ceded by the French, in 1763 with Quebec and Ontario. Cape Bretou forms part of it. See a. Settlement of 1856. See a. Detached from the North Wco^ Territories in 187U. See a. Settlement ceded by En- gland to the Hudson Baf Co., in 1766. and bought by Canada in 1871. See a. Ceded by France in 1713 : •reaty of Utrecht English law introduced by 6 Oeo. IV, ch. 67. Conquered over tho Dutch in 18(13. Ceded oy treaty in 1814. See a, d- do do do do Settlement of 1609. See a. Conquered over the Spanish in 1798, English law introduced by Proclama- tiou. Settlement of 1029. Con- quered by Spanish in 1781. Bought from them in 1783. See a. 1 In the reports of legal cases, this town is someUmes given as being the colony from which tne appeal came. 888 APPENDIX " A ' COUNTRIES. America. BrUish Posses- sions in West India Leeward Islands COLONIES. Jamaica. Antigua.. Barbuda . Montserrat St. Christopher..., Nevis. Anguilla.. Dominica. LAW. Windward Is- lands The Virgen IS' lands Grenada English., do St. Lucia. St. Vincent. Barbados . Tobago., do do do do do do REMARKS. Conquered over the Spanish in 1665. English law introduced by I Geo. II, eta. 1,817, B. 22. Settlement of 1C32. See a- do Settlement of I60g. See Settlement of 1628. See a. Owned in common by En- gland and Frnnci' since 1627. Ceded by France, in 1713: treaty of Utrecht. Settlement of 1628. See a. Settlement of 1666. See ii do Ceded by France, in 176n. See a. French {Custom of Paris) English. do do Settlement of 1666. See a. Capturt'd by French, in 1779. Keetored to Kngiand, in 1783. Grenada Act, No i6, iu 1874, decluri'd the Fug- liali law previous to 1729 to be the commou law. Conquered over the French, in 1803. Ceded by treaty of 1814. See c. Ceded by France, in 1763. Proclamation of 7th Octo- ber 1763 introduced the English law. Settlement of 1606. See a. Ceded to France, In 1802, by the treaty of Amiens, retaining the law of Eng- land previous to 1BU2. Bv- Btored to England in 1603. APPENDIX " A ' 889 red over the SpaniBh 055. Englisli law luccd by 1 Geo. II, S 17, 8. 22. lent of 1032. See a. lent of 1609. See a ncnt of 1628. See a. I In common by En- d and France since Ceded by France, in '; treaty of Utrecht. mcnt of 1628. See a. ment of 1666. See r 1763 introduced the ngliah law. tlement of 1605. See a. led to France, in 1802, y the treaty of Amiens, Staining the law of tng- and previous to 1802. Bt- tored to England in 1803. Windivard Is- lands Trinidad Africa. South Africa. Gape of Good Hope Griqualand West Conquered in 1707 over the Spanish who retained their law. See a e. Roman-Dutch Basutoland . Bechuanaiand., Natal Zululand West Africa.. Gold Co-ist. Sierra Leone. Lagos. Mauritius. Conquered, in 170,1, over the Dutcli. Ceded by treaty of 1815. The law of Hol- land remained in force. See a, d. do do Annexed to the Empire, in 1871 British See a. Roman-Dutcliand' native do do do do Gambia Annexed to the Cape co- lony, in 1871, after a war with llie natives. liecame a separate colony, in 1880. Conquered over the iiutives, in 1684. Ki'cume u separ- ate colony, ill 1885. Conquered over the Dutch, in 1844. See a, d- English and Na- tive English. Part of tliis kingdiim i» under Dritisli Protector- ate since the war of 1879. Settlement of 1C31. See o English and Na- tive 'Settlement of 1872. .See o. do do .... Settlement of 1787. Kuled under a Charter of Jus- tice of 1826. do do .... Ceded by the negroes in 1801. Annexed to the Hold Coast in 187U. See a. l''rench [Code Na- i mleuH] Conquered over the French, ! ' in 1810. Ceded by the : treaty of 1814. Seeu,c. '5tgf«?"1 890 APPENDIX "A" COUNTHIES. Africa. British Posses- sions in South' em Atlantic. Ascension. Tristan d'Acunha (Island of) Falkland Islands, St. Helena. Australasia . COLONIES. New South Wule? Victoria Queensland .... British New Gui- ana LAW. KEMAHKS. English. do do Koinan-Dutcli English do .. do . Annexed to the British Em- pire in 1816. Occupied u naval post. ,Sce a. Settlement of 1816. See a. Settlement of 1833. Hu a. Conquered over the Dutch in 1651. See a, d. Settlement of 1787. See a ■ Separated from Kew South Wales, in 1851. See a. Separated from New South Walea, in 1859. See a. VVt'stern Pacific. . South Australia... English and lio- nian>Outch ... lilnglish and Na. tive do Western Austra- lia do New Zealand Fiji Islands Van Diemen's Land or Tas- mania Island... do do do Annexed to the British En^pire, in 1884. See a. Group of islands in the Pa- cific Ocean, under thigurii- diction of a liigli Commis- sioner since 1872, See a. Settlement of 1836. See a. Settlement of 1829. See a. Purchased from the Natives in 1845. See a. Ceded by the Natives in 1874. See a. Settlement of 1804. See a. nent of 1616. See a. mont of 1833. See a. APPENDIX "B" DECISIONS RENDERED BY THE COURT OF QuEEN's BENCH (APPEAL SIDE), UNDER THE CODE OF CIVIL PROCE- DURE OF THE PROVINCE OF QUEBEC, ON APPEALS TO HER MA.IESTY. immit of 1787. Seea- lemeut of 1830. See a. Ileruent of 1829. See a. itlement of 1804. See a. Art. 1178. An appeal lies to Her Majesty iu her Privy Council from final judgments rendered in appeal or error by the court of Queen's Bench : 1. In all cases where the matter in dispute relates to any fee of office, duty, rents, revenue, or any sum of money payable to Her Majesty ; 2. In cases concerning titles to lands or tenements, annual rents and other matters, by which the rights in future of parties may be affected ; 3. In all other cases wherein the matter iu dispute exceeds the sum or value of five hundred pounds sterling. There is no appeal to the Privy Council. 1. From a judgment rovereing that of the court below which dis- minsed the action on demurrer. Simard v. Townsend, 6 L. C It. 147 (1856) ; Brook v. Bloomfield, Ra7nsay's Appeal Cases, vo. Appeal, p. 55. (1874). 2. From an interlocutory judgment. Lacroix v. Moreau, 15 L. C. R 485 and 16 L. C. R. 180 (1865) ; Lambin v. The South Eastern E. E. Co., 1 L.N. 55 and 22 L. C. J. 21 (1877). In thin last caae special leave of appeal was granted by the Privy Council. 3. From a judgment for $40.00, with contrainte par corps. Pacaud Eoy, 16 L. C. E. 598 (1866). 4. From a judgment granting a new trial, as being a matter of ditoretion. Boak v. The Merchant's Marine Insurance Company, 1 S. G. Eeporfs, 110; South Eastern Counties EyCo. v. Lambkin, Ramsay' a Appeal Cases, vo. Appeal, p. 55 (1877). 5. In matter of Quo Warranto. Pacaud v. Gagni, 17 L. C. R. 357 (1867). ,..-.l»5-;.fj.A.S.'.ni,l,'^',i, ,-^„; , ' ■;;■:, ViiH 892 APPENDIX " B ■ ^ 6. When the amount claimed is under £500 stg., although the action is for overdue inbtalments of money. Sauvageau v. Gauthier, 5 R. L. 102 (1874). 7. In an inscription en faux. Darling v. Templeton, 19 L. C. J. 105 8. In a matter of Mandamus. (1875). Belleville v. Doucet, IQ.Z.B. 250 9. Prom a judgment refusing to discharge a person arrested under the warrant of the Speaker of the House of Assembly of Quebec. Ex-parte Dansereau. Ramsay's Appeal Cases, co. Appeal, p. 55 (1875). 10. In election cases under the Controverted Election Act of Quebec. Landry v. Thiberge, 3 Q. L. R. 202 (1876). 11. In the case of a Prohibition where there is no matter in dispute exceeding the sum or value of £500 stg., and where future rights are not bound. The appellant was a practising attorney suspended by the Bar. O'Farrell v. Brassard, 1 L. N. 25 and 115 ; 4 Q. i. R. 214 (1878). 12. From judgments rendered under the Insolvent Act of 1875. Renny v. Moat, 2, L. K 226 and 23 L. C. J. 262 (1879). 13. From a judgment maintaining an action to recover an amount of assessment illegaly exacted, the matter in dispute not exceeding £500 stg. The fact that the roll under which the assessment were collected would be in existence for three years more does not bring the case under art. 1178 C. P. C. Lussier v. Corporation of Hoche- laga, 'i L. N. 309 (1880). 14. From a judgment rejecting an appeal to the Queen's Bench for want of jurisdiction. Angers, Attorney General \. Murray, 3 L. N. 308 (1880). 15. On the ground that there was a part of the sum payable to Her Majesty. The case was about the auctioneers tax ; and the court held that there was no issue as to its exigibility. McLeod v. Masham, 4 L. JV. 99 (1881). There is an appeal to the Privy Council. 16. When the amount involved in the controversy exceeds £500 stg., though the amount actually demanded in the declaration be less than £500 stg. Bunting v. Hibbard, 1 L. C. L. J. 60 (1865). 17. From a judgment dismissing an attachment before judgment. JDallimore v. Brooke, Ramsay's Appeal Cases, vo. Appeal p. 54 (1874). 18. From a judgment on an action to set aside a Crown Patent, establishing respondent's title to lands. Pacaud v. Rickaby, Ramr say's Aj^peal Cases vo Appeal \x 54 (IS'Jb). APl'KNDIX " B 898 19 i. a. 7. 105 1 Q. L. R. 250 llection Act of 19. Whore there i8 a croMH-deraand, if it in so connected with the original demand ho m to form part with it, and that both to;,a'- thor exceeds £500 stg. Bartlcy v. Bart ley, Eamsau's Appeal Cases, Vo. Appeal p. 50 (1877). 20. From a judgment on an injunction to restrain tlie frovernraont from interfering with tlie possession of a railroad. Joly v. Manh- nald, 2 L. N. 104, (1879). 21. From a judgment rejecting a petition to quash a capias. Gold- ring V. Hochelaga Bank, 2 L. N. 2.32, (1879). Leave to appeal was granted by the coui-t of Queen's Bench with groat doubts and at the risk of the appellant. The Judicial Committee, in England, after- wards dismisseil the a2)2)eal on the ground that there was no appeal in such case. 22. From a judgment dissolving an injunction where the matter in dispute exceeds £500 stg. Dobie v. Board of Temporalities, etc., 3 L. N. 308 (1880). 23. Interest cannot be added to the capital demanded in the decla- ration to make up the appealable value. The Quebec Fire Insurance Co. V. Anderson, 1 L C. J. 150 (1860). On special application, leave of appeal was granted by the Privy Council, but errors of calcula- tion having subsequently shown that the amount was still under the appealable value, the leave granted was discharged. 24. A similar application was refused by the court of Queen's Bench, but was allowed by the Privy Council on special jjotition. Richer v. Voyer et al, 2 R. L. 244, (1870). 25. Same decision of the court of Queen's Bench. Pacaud v. Queen's Insurance Co., II Stephen's Digest, vo. Appeal, p. 70 (1876). 26. Same decision of the court of Queen's Bench. Stanton \. Home Insurance Co., II L. N, p. 314 (1879). See remarks of the judges in this cause. See also notes on this question in II L. N., p. 313. 27. The right of appeal upon the opposition made by a defendant to the execution of a judgment, is settled by the nature of the original demand, and not by the matters set forth in the opposition. Ghigy v Brown, L. C. R. 273 (1851). 28. An application was made on the last day of the term for leave of appeal to the Privy Council, from a judgment rendered five days previously, but leave was refused, the motion came too late. Mullin V. ArcUmbault 3 L. C. L.J. 117 (1867). 29. A party, joint appellant with others, has a right to disavow and refuse to participate in a proceeding to appeal to Her Majesty. Muir et al. v. Muir, 15 L. C. J. 79 (1871). 30. Where leave to appeal had been granted, the court of Queen's >tf-*#*f*f'l w 894 APPKNDIX " B " Bench has no power to grant an application asking that a portion of the record waid to be immatorial he omitted from the transcript, Lemoine v Lionais, 16 L. C. J. 99 (1872). 31. On motion, and by consent of both parties, an acte argui tho judgment of tho Queen's Bench revi int( ' st and uonis, on , to tho court of vvill pay tho *• lem- lued, is binding, lUgh 'd the idgment of the court IjoIow, if tho original judgment of tho Superi . court has been restored by tho Privy Council, and tho effect is tl same as if the judgment of tho Superior court had been affirmed by the court of Queen's Bench. Lowrey et al v. Bouth, L. R. Ill Q. B. 364 (1887). Art. 1180. The appellant may also consent to the judg- ment being executed, and in such case may give security only for tht^ costs in appeal, under the same conditions as under article 1124. 1. When security is given for costs only, tho court will not allow tho record to be remitted to the court below in order to enforce execution of tho judgment. Painchaud & al v. Hudon & al, 15 L. C. J., 112 (1870). 2. Security for costs only having been given, under this article for an appeal to tho Privy Council, by depositing a City of Montreal U'H in clmmborrt is doluy iH not u|i|iciilc(l from. r /. 85(1877). n ai)poal to the conHrmod, but thcloHM avail to [)t, tiicroforo, be 22 L. C. J. 23 w to the Privy lave no jurindio Supori'"' court. )• to appeal to the ng abnont when Bocurity during remitted to the on. Brewster v. Appeal, inHaisiH- pplication I'or as was refused an granted. Molson st and lomis, on to the court of pay the c dem- 1 binding, lUgh i'ldgmenl of the I court has been same as if the I l)y the court (»f l B. 364 (1887). at to the judg- y give security le conditions as irt will not allow order to enforce on & al, 15 L. C. er this article for City of Montreal AiM'KNDIX " U 897 debenture, the roHitondcnt in uxocuilion of his Juilgment seized il in till' bunds oClJKt rlork of llu' court. Held, timl' notwillistiuuling Iho scizuro, the socurily as given was valid and siittk'iont. Jetty An I \- McXawjhtuH 21 L. r. ./."l!)2, Q. li. (isTiij. Art. IIHI. Th(< fxecutiou of any judgmeiit of tht; court of Queen's lUsiich taiiuot he prevented or wtayt'd al'tt.'r six monthK from the day on which the appeal was allowed, uulcHH the appellant Hies in the olli(!e of the clerk of appeals, a <'ertiricate signed by the clerk of ller Maje.'sty's I'rivy Couuril, or any otht^r competent ollicer. andstatin<>' that the appeal has been lodged Avithin su.h delay and that pro- ceeding have been had therein. 1. Wliin a record had been remitted to the court below in conso- (pionce of the cortiticate not bidng lodged, the court could not order the ])rothonnlary of the court below to return the reconl. Brewster ,f! al V. Chapman & al, 20 L. C.J. 205 (IHotl). 2. The delay of six months mentioned in article llJil ('. I', (J. is not absolute but directory only, leaving a certain discretion to the court of (Queen's Hench. Jones v. Giiyun 2 L. C. L. J. lOl (LSOii). 3. Where leave of appeal was granteil, and copy of the record was transmitted within the delay, but the cortiticate re([uired by article 1181 (J. P. (J. was not lodged within the delay, the court of (Queen's JJench would not order the provisional (execution of the judgment appealed from. Jones v. Guyon 17 //. C. Jl. 377, (lHii7). 4. Where appeal had been granted to the Privy C| Banque d'Epargne, Banque Jac- ipii'S-Cartier V 51 Banipie d'Hochelaga, Gojdring v.... 84 V. Murray el al. 5,'iij Barclay, Turner v .\ 239 " V. Bank of New South Wales 028 Barlow, Miller v 411 V. Orde «20 Barnett George, lure 117 Barron, Gill V 40» V. Stewart 189 Barteaux, Goloquid Marine Insu- rance Company v 509 Barrett, BeaumontV 237, 528 " , Goojior V 345 " , Lindo V 09,274 Barry V. Butlin 344 Burlrum V. Godlroy 20, 270 Barton v. Bank of New Soutii Wales 727 Barton V. Field 407 " V. Muir 295, 048 " V.Taylor 530 " \ al. V. The Queen 75!) Barnharl v. (ireenshields 722 Dateman V. Service 257 .Mollktt V 203 " \'. Pennington 345, 351 Bates V. Don Pablo Sara 501 Batten v. The Queen 458 Butt, Baker v 344, 350 Bcauduins, l)e, Carteret v 398 " V. Li(|uidators of Jersey Banking Co 82, 030 Baxter, Benninglield v 71J Beaumont v. Barrett 237, 528 Beacon Life ai.d Fire Insurance Company v. Gibb 241, 343, 422 Beal V. Marchais 223 Bear v. Slevmison 035, 052 Beaman, Watt, V 101 Beatty, North- West Transjjortation (iomiiany v 258 Beaudry v.Tlie Mayor \ al. of Mont- real 50, 307 Beaudry, Leclere v 774, 770, 784 Beauco v. Muter 319,395,042 Bec(|uet V. Lemjiriere 031 Beck, Inman V 221 Beckett, Bullen V 803 Bedard, Justice EUear, /« re 047 Beete iV al. Forte v 720 Behrens, Colonial Secretary of Na- tal V 295 Bell V. Corporation of Quebec 092 ' V. (Jraham 557 " , Harmer V 211 " , Macdonald v 793 Bell , The Heceiver of Land Re- venue of Southland 293 Bell V. The Master of Ecpiity of the Suiireme Court of Victoria Belleau, The Queen \ Belisle, Union St-,Iacques de Mont- real V Belloiti, Dagnito v Bellingham v. Freer 171,329, Belson, In re 83, " V. Belson Beck i al. V. Whittall iV- al Benesl V. Pipon Oil, 642, Beninglield v. Baxtiir Bent, McTink v Bony Pessad, Baboo Ulruck Sing v I II, Bernard v. Hyne Berry, Graham v 120, 259, Bertrand, Heginav 80, 279, 282, Bertnim v. iJulmniel, •' v. Godfrey Bethune, W^ardle v Bethel i\: al., Gore A- ul. v 300, Bessener, de Gaspe v Bibby v. Boissevain Biccanl v. Shepperd Biggs, McEllisler v Bigge, Hill V BIgnold, China Merchant Steam Navigation Company v BIJai Gooind Sing, Hajunderna- rain v Binney v. Mutrioi^- al Binns, Emery v BinI, Balston v " v.Gibb Birley, Richards v Birnie v. Caystili' Bishop V. Wildb(jre Blackwood v. The Queen 450, V. London chartered Bank of Australia Blackwood iV- al., Teuton v " Mayor and Corporation of Essender v Blackburn v. Flavelle Blackmore v. North Australian C(j. Blake's ])atent. In re Black V. Ottoman P.ank 172, " , Johnson v " , Dow et al. v " V. Rose Blachford v. Christian 382, Bland v. Ross 217, Blethrn, Exchange Bank of Yar- mouth V Bligh V. Simpson 734, 735, 743, Boadman v. Quayle Board for the iiianagemeut of the TeniiHJralilii'S fund of the Prev hvLeriaii church of (;anada, Uobie V 209,258, 880 403 482 107 792 880 019 412 7i7 710 310 329 470 703 305 COO 20 131 735 53 218 431 01)8 391 232 570 592 471 .•"0 738 111 397 102 880 705 394 138 294 293 000 793 506 485 04 528 330 278 759 181 504 902 TABLE OF CASES t (> Huiiril of Lanil Works, llnnling v.. 707 " Oi'|iliiin V, Knu'L'c'lin (Vl't Uowmaii, Furiuill v 2S« Hollm, Deiiyssoii V (ilil Homlitiy Nulivo Iiisiinuice Co., CuiTi(' V i"2!J Uocketl. Coopor v Huisscvain, Bibbv v 2IH Hond, Mack'-'llar v 7!»0 Hoiilaiij-'cr, Martin V •27H Hold V. Hoiiry 4 al '2l(i Bonaiitv y Guretv, Larios v... 311, M.i Hosweli V. Kilborh. 70, II 7, 299, (i 1 i, 7 1 S Howi.'s V. f;ity of Toronto 2G0, t'rl') Boston V. Lulievro 86, ll'2, 204, 772 Bonrgouin v La Compagnin du c\w- niin do fer de Montreal, Ottawa lit Occidental 127, 488 Booth V. HattR 707 Borouf,'!) of Bathurst v.Mae|)lit,'rson 2(iO Brailliury, Pollock A al. v 21)4 Brandon's patent. In re 'iOI Briivo, Bainy v 103, 337, 012 Braliani, Hoyal Mail Sti.'ani Packet Oiiniiany V G3(i Bradsliaw, Bank of LI])|)er Ca- nada V 102 Braid and Fawcett, Great Western Hiiilway of Canada v. 34 J, 021,081 Brasycr V. MacLean 7.57 Broiilat, Bank ol' Australa- sia V 159, 238, .i34 Brcnicr v. Freeman 337, 357, 4 JO ,Trossterv 219 British Gniana Bank, Chapman v. 173 SS. " Spearman ", Russian SS, " Youri" V 233 Briscoll, Ohrlolfv 202 Brodie, (iarmichael v 7.37 Broers, do Montlbrt v 783 Bromlield, Stephen V 183 Brooklield.Sl. Andrewsanil Quebec Hallway Company v ,j72 Brooks, Kerakoose V 408 Brouard v. Dumaresi| IOI Broughton and the Govi'rnment of India, Sinclair V 307 Browi'rs, Letterstedt v 8.')3 Brougham, Melbourne Banking (iorporation v 342, 413 Brown v. Amlerson 390 " , Comiuissioners for Hail- ways V 107, 039 Bri.wn V. Davenport itO " V. Uibbs 313 " ,Gaudetv 04, ."lO'i, 704 " V. Gugy .")2, 271,029, 074 " V. Los Cure et Marguillers d(( rORuvre et Fabrique de N.-l). de Montreal 142, 191, 207, .547, 010 Brown, Mayor A- al. of Montreal v. 80, 309 " V. McLaughan 73,704 " , Smith V 481 Browning V. Budd 3r)7 " V. Provincial Insurance. Company oftianada O.Vi, 004 Brnnetti', Stanford v 029 Brugmandass v. Netherlands India Sea and Fire Insurance Ojui- pany of Batavia 427 Bruii, Gunn v 329 Bruneau, Ilei' M.iji.^iy's Procuri.'ur geni'ral v 788 Bryer, Smee, v 837 Budd, Browning V 3.')7 Bugeja V. (Jaiiiilleri 014 Bidkelev V. Sidu-etz 449 Bullen V. Beckett 803 Buiinv V. Hart 413 •' v.The.luilgesofNew-Zealand 144 Burgess, FrasiM- v O.Vi Burrow, Lapraik v >")2, .")08 Biu'sjem iV al., Lopez \- 400 Burah, The Queen v 7fi.") Butlin, Barrv V 344 Buttigig, Caslrigu(^ v 09, 174 Butts, hire 408 Bvrnes, Williams v 772 o Cail V. Papayanni 218 Cain V. Cain .■).')2 " V. Toare 238 Calder V. Halket 400 Caldwell V. McLaren 702 Callender, Wilson v 79 Cambernon v. Kgroignard 1 !•") Cambridge Sanuiel, lure 08 Cameron v. Kyle 390 V. Fraser 39.") Camilleri, Bugeja, v 014 v. Fieri 08 Campbell, Bank of New Soiitl Wales V. 707 Campbell V. Dent 4.J4, 004 , Grant v 803 " V. The Commercial Bank- ing Comjiany of Sydney 003 Canada Central liailwav Coni|ianv V. Murray '. 81", 109 Canada Sliipping Co., Wilson v.... 231 " Southern Hallway Co. v. International Bridge iionijiany 707 Canadian Bank of (lomuierci^ \. Lamb .V20 Canelli, Treftz v 314 (^uiejia v. Larios 33."), .!.')4 Capeyron, Cliasteaiineuf v .■)70 TABLE OF CASIS 9oa 101 oviTiminiil 1)1" ;)07 V «:>:! rno Uniikinn Vii, 'ii;i :)'J0 rs I'oi' Kail- 107, IV.V.) oO lillf (li.M'i, 7G4 . ,V2, ■2 71,0-2'.), 074 MorguillBrsdc )rifjno do N.-l). B, 191, 207, 1)47,010 Monlmilv. SO.IIO'J [1 73, 704 481 :i:)7 iciiil Insurant:!' niulfi 0.')0, 004 V 02!) lliiTlaiiils liiilia nsiii'Uiico (;oni- i 4-27 :i'2y >;>"s Procunnir ..; 788 8,17 ,).)7 i 014 44!) 803 413 •solNi'W-Zi-aland 144 O.Vi ,• 5'2, MW KiZ V 400 V 70.') 344 ,. V ()!), 174 408 V 772 4.^4,004 • 803 ;oninii>rcial Banlc- ot' Sydney 003 lailwav Coniiiany : 81, 10!) Co., Wilson v.... -2:11 Itailway Co, v. Brid),'!' (lonijiaiiy 707 of (lonnni'i'ci^ v. .V20 314 33."), 3.yi aunoul'v ■')70 Car, Lawson v Card's patent, hire CardwfUs patent, In re Carlin, Itegina, v Carmichael v. Brodio Carpenter, Suiilli v Carson el nl., Kielly v Carter, Clark v v.Molson43, 107,590,020, " , " V 10.5, " , Numes V Carnnan v. West Cart\vrije v.." 210, Dufour V. Croft Dull. Linilsav V 49, Dullctt v. MiKvoy Duhamel, Bertram v Dumaresi], Brouanl v , Robertson v 1 17, Dunnnett iV al. MacLiiun v Dumoulin. Laiietry v Dunn v. Lan'au Duncan v. Koster Dunctjuibe, Salmon v Duponl, Hochecouste v Dujiuy, Cushiu}.' V... 104, 493, 710, . Ducondu V Duranty v. Hart 187, Dull, l{o^:ers V 305, Dyce Sombre A- ill., I'rinsep and The Kast India (lomjianv v. 275, 358, D\ke V.Elliott 440, D'. son V. Godfrav 047 .".61 700 73 748 815 92 308 552 319 151 485 505 023 532 188 452 765 218 578 727 777 351 360 638 006 101 310 406 123 045 504 7(i8 720 731 727 451 ">84 819 703 014 E Eales, Osborne v 709 East India Co. v. Albv 79 V. Ally 118 •• V. Bank of Bengal... 648 , Haines v 755 " . Mayor of Lyons v.. 434 " . S|M;arman v 118 " v. Oditchurn, Paul.. 644 East India Co. v. Hobortson iV- al.... 49 Eastern Financial Association, Bank of Hindoustan China and Jajian v 103 Ecclesiasliiiues ilu seminaire de St- Sul]iice, Cite di' Montreal v.... 123 Edulji'e Byramjee. The Queen v.... 86 Edwards v. Fingham 352 90G TABLK OF CASES t Edwards v. Ronald 408 Egruit'iiiiril, Cainl)ornon v 115 Elder, Nortli Gi-rinan Floyd Steam Coinpuny v 217, 330, 562 Elliott iV ul., Dyke V 4iG, 763 V. Lord A- al 59 " V. Turi|uand 412 Eljihinstono, Clark v 642 Emerson v. Judges of Nowl'ound- land 144 Emery v. Binns 471 " V. Cichero 232 Ennis, LoBreton v 467 EnooKOonty Sooriali, Raja Row Vencata v '..... 328, 338 Ermatinger v. Gugy 49 Kscalior V. Escaliiu- 789 Esnoiil' V. Attorney Gi'MithI for Jersey 85 Ettnrshank, Attorney General of Victoria v 288 European and American Steam Na- vigutiuii Company, Prowse v.. 502 Evanturel v. Evanturi'l 845, 804 Exchange Bank of Canaiia v. The Queen 211, 668 Exchange Bank of Yarnionth v. Blelliern 276 Exchange Bank of Yarmoutli,Col(j- nial Bank v 002 F I'abra, Abb-ul-Mossih v 323 Pagan v. Bank of Bengal 2.38 Falconer, Dovle v 151, 532 Falle, Godfray v 852 " , Hamon v 304 " V. Le Sueur and Lc Huquet 340 Falkland Islands Company v. Tlie Queen 89 Farnuin and Willems v. Adminis- trator General of British Gui- ana 802 Farnell v. Bowman 288 Fawcett v. Justices of Bombay 1 38 Fenlon v. Blackwood A al 394 " V. Hampton 531 Fielden, Wallace v 180 Fiehl, Barton v 407 Fingliam, Edwards v 352 Fisher, Maddox v 210, 217 Fisher v. Naiker 205, 250 Fitzorald V. Fitzerald 07 Fitzimon, Miedbrodt v 305 Flavelle, Blackburn v Fiery, Camilleri v Flint V. Walker Flower Salting Company, Rolfe and Bailey and Bank of Australa- sia V 41 1, Forbes, Agacio v 154, Forrester, Simpson v Forte V. Boete ^ al Francis, Smire v Frankland v McGusty Frasor, Abbott, V 210, " V. Burgess " .Cameron v Frechette v. Compagnio manufac- turiere de Ste-Hyacinthe.. 303, Freeman, Brewer V 3.57, 357, Freer, Bellingham V 171, 329, Freyhaus v. Cramer iV al Frixiono v. Tagliaferro 014, Frow, Thompson v Fulton, Casoman v ... C3- Gaden Gully United Qnarlz Mining Com])any v. iMcLister 025 Gagnon, Prince v 125, 297 Gahan v. Lalltlo 40(1 Gann V. Brun 329 Gardner, Gore v 185 Gaudet V. Brown 04,504, 704 Gaudin V. Messervy 102 Gauthier, Sauvageau v 73, 020 Gavin v. Hadden ... 018, 797 General Iron Screw Comi)anv v. Moss ;■ 331 General Steam Navigation Com- l)anv V. Jersey 804 General Steam Navigation Compa- ny, Malconson V 224 General Steam Navigation Comi)a- ny V. Tonkin 558 Gi.'orgo, V. The Queen Geuge, llott v Gibaud, Slates of Jersey v Gibb, Beacon Life and Fire Insu- rance Companv v 241, 343, Gibb, Bird v ." Gibbons, Attorney General of Queensland v Gibbons v. Gibbons Giblin v. McMullen 101, Gibson, Christian v Giddy, Weeb v Gilford, Hawksford et al. v 57, Gilbert, Cutto v 357, 836, Gill v. Barron Gillespie, Hutchinson v... 210, 367, Gilmour, Miner v " V. Mauroit 294 08 608 592 593 551 720 0.52 624 8.53 0.54 395 7.50 4.50 792 798 066 214 838 635 352 762 422 738 707 828 023 074 292 407 870 409 014 091 405 TABLE OF CASES 007 49 789 Gi'iiithI Tor «j Gt'neral ol' 288 :U1 StlJUlll N(l- (•, I'rowso v.. JC2 845, 8G4 liimdii V. Till) '211, 668 lYiinnoiilh v. 270 rniouth.Colij- 602 294 68 608 my. Hollo iiml of Austraia- Hi, 592 I5i, 593 551 720 052 y 024 210, 853 054 395 gnio iiianurac- yacintho.. 303, 750 337, 357, 450 171, 329, 792 A- al 798 TO Oli, 666 214 838 n 635 352 "seyv 762 .nd Firo Insu- V 241, 343, 422 738 General of 707 828 101, 623 074 292 !tal. V 57, 407 357, 836, 870 409 n V... 210, 307,014 091 , 405 Gilinourv. Alliiin' 405 " V. Sii]i|pk' 730 Giovanni Duimclo v. .lanios Willii' and Go 567, 62« Gipips, SIrG., Willis V (;|3 Glass, iVIurpliy iV al. V 627 " S|M'akt'iol'Li'^'islali\i! Asseiu- lily of Victoria v 119, 535 GlouhtM-, Peas V 62, 301, 380, 72'i Goitinil Oliunilcr Sin V. llyan 601 GodlVay v. Coulnian 107 " , Dyson V 014 " , Falli- V 852 " , GodlVay V (MO. 04I„7I5 Godfrey v. HiTtnun 20, 270 " V. Poolo 711 Godricli, Jones v 352 Goldio, Christian V 759 Goldrinj,' v.LaBaiKiui' d'tlocliola;.'a 84 Good, The Natal Land Co. v OXS Goodman, di! BrotI"'- v 79i " Maurai' v 2!Mi, 3!;7 Gooroouliurn 8(;in v. Itadanautli S.'in 113 (iooroo|iiM'sad Kliooml \. .Iu;.'^;u- rhuiidcr 70 Gordani v. Scott 591 Gordon v. Horslall 397 Gore A al. v, I{i4lii'l A al 366, 735 " V. Gai'diniT Is5 Gosnahain v. (iriii' 385 Gondii ct al.,.Ioni's\ 84 Gould \ h\., Ill ri\ 4ti8 , Smith V IKO, 337 Gourley, Sti'vi'ns V 215, 4(il Governor General ol' New South Wales V. IJolii'rtson 470 Government of Newronnland v. Newfoundland Uailwav Co.... 247 Gow. Owni'rs ol' llic " Tliou)as Allen •• V tirahani, Austen v ■• , H.'ll V " V. Hcrry 120, 259, '• V. I'oiock Grand Trunk H.iilwa\ Company of (Jmaila v. ilenkins Grani, In /•(■ " \. Campliell " V. 'fill' A'Aiiix Insuraiici' (Company 1 12, Gravel V. Martin A- al Great Wi'slcrn llailway (;ompan.\ of Canada, CuniniiTrial Bank of Canada v \M, Great Ship (.uinpany v. Shayh's Gref-'ory, Attorney General of Nova Scotia V Greek and (Jrii'iital Slcaiii NavJL'a- tiiin (^impany, Imperial Iloyal I'riviliMlfTcd IJamihiaii SliNim Navi^ration Company v (Jrecii \. Bailey Greeiisliii'Ids, Bariihail v (Jrevilli' \. Tylee 350, Grice,Cosnaiiam v \. Hichardsori Griimii, Stat-'.'v Grindli-y v. Stevens Gudadhnr I'urshad 'fewassee v. .Mo{jsuinat Soodcrkoowasee Gufy, Brown v 52,271, 029, " Eriiiatiiij.'cr V Guimaruens v. I'leston Gunilahnr Seal v. Sreeniutty Itad- ilamoiii'V Dorsee Gutli, Williams \ Guthridae, McEwaii \ 73H 818 557 703 290 311 587 803 424 675 219 122 219 330 385 720 022 218 114 074 49 339 469 401 'i2l H Ha Iden, Gavin V 018, 797 Haim.'s v. liast India Coinjiany 755 Haji Joosul) Bhulladina. Louj;li- now V 50, 471 llalket, Caliler V 400 Ilalloway, Bevini' v 025 llalsey v. Alberluzen 739 IlamljiU'f,' American Steam Navi. f-'ation (Company v. The North of Scotland l)aiikingCom|)aiiy. 402 llami'l V. I'anet 553, 581 Hammond v. Holers 500 llamon v. Falle..'. .'!04 Hampton, Fi'nton v 531 Hand, Hogan v 044 Hanil)airs Patent, hire 001, 701 Hardern v. Connnercial Union As- surance Company 248 Harding v. Board of Land and Works 707 Harding v. Howell 802 Harmaun, Sillerv v 018 Ilarmcr v. Bell 211 Harris, Bank of Australia v 4J0 " v. Davii's 758 " , Moore V 204 Harrison, Ballacorkish Silver Lead and Copper Com|)aiiy v 292 Harrison v. Scott 85 etal.. Smith v .380 v. The Quern 364 Hart, Bunnv v 413 •• , Durantv v 187, 451 " , Sun Fire(jnice V 429 IIarv(!y v. Owners of tlu! screw steamer "Euxine" 612 Harwood V. Baker 351, 817 Basking V. TiMTV 340 ■' , Hughes V 872 Hawksford et al. v. Gilford 57, 407 w '^y''*'*^rtBffW^M^g*JfgJf|ry*g^^ <'';**^t^i*HitiiS i no8 TABLE OF CASES ■? Hcnth's iiatcnt, Inre J!)7 Ilpalliom V. Dnrlintr Is.) Jlcddln, Patnclli v (I!) Ili'irs ol'Hiilc, Sioinona v lis Honckfll V. Duly SO;! Henderson, Clmtterud Bunk ol' In- dia Australia and Cliina v.... 03 Henderson v. Coni])toir d'Escompte de Paris 03 JInnderson v. Henderson I '20 V. Hoen i'lO Honfroy v. Henfrey «7i Henos v. Aldcrsloy 3(m Hcnrick v. Sixby.." I'lO Henry, Bold v 210 Her Majesty's Procureur G(!neral V. Bruneau IHH Hersu V. DnCn.ix -iio, 777 Hcttihemage Sinian Appu v. Tlio Queen's advocate 288 Hewotson, Courteaux v Ml) Hewelt V. Aylan 7'i2 Heyeock, Jenkins v 43(1 Hiibert, Shershy v 731 Hidding V, Denyssen 78 Hildebrandt, The Queen v 3'i0, 'li'i Highland Hallway Co., Philips v... i7"2 Highness Huckmaboye v. Lul- loobliov Mottichund ii.'), 701 Hill V. Bigge 3!ll " V. Jenning 7r)ll Hill's patent. In re 5!)8 Hill V. The Queen r)80 " , Trimble V 38.'i, 700 Hilchings v. Wood et al 3:)0 Hitchins v. Hollingswortli 023 Hoaro v. The Oriental Bank Cor- poration il3 Hoc(|uard et al. v. The Queen 301 , Papayanni v 730 Imman V. Beck 221 Imperial Hoyal Privileged Danu- bian Steam Navigation Com- pany V. Greek and Oriental Steam Navigation Company... 219 Incc V. Tliorburn 702 Ingram, Laing v 12.') Jackson V. Protero 029 Jardine, Lyall V 81, 118 Janvrin V. Dy la Mare 334 Jeirrey, Shaw v 379 Ji'nkins V. Heyeock 430 " , Grand Trunk Railway of Canada v 31 1 Hodgi' V. Tlie Attorney General of British Condunis r)H.'> Ilddge V. The Queen 711 Hodgson V. I)e Beauchesne... 31."), 34.') •• 's Sehdll //) ir 38.") llodsilon, Mayor of Hunillon V 820 Hoen, Andei'son v 220 IloH'iiung, Lyons V 725 Hollingsworth. Hili'hiiis v 023 HoUyman v. Nooniii; 291 H(jgan v. Hand M\ Hood V. Stallybrass et al 171 Horsfall, Gordon V .'197 Hiitt V. Gauge 3.')2 How et al. v. Kirchner et al.... '>'.), 469 Hdwati'on, Tenuiini et al. v 089 Howell, Harding v 802 Hudleston, Armstrong v 275 Hughes V. Basking 872 V. Pascal 3:)9 " , The gueen v 881 Hugo. Commissioners of French Hoek V 043, 697 HiilUiilhin Doss, Siliuarain Ghose v. 80 Hulm v. Hulm 116 Humphrey v. Nowlaml .V2 Humphrey, Wenlworth v 789 Hurd, Liriilsay Petrole\mi (;o. v. ... .180 Hurkirhen Doss, Seetul Bakoo v.... 'i7 Hu.ssee PuntBhaw, Noura Marains Rao V 78 Hutching v. Numes 723 Hutchinson V. Gillesjiie.. 21(1, 307, 014 " , Morton , .').J9 " , Palmer V ."i85 Button V. Li)>|)ert 731 Hyland, Commissioners for Rail- ways V 708 Hyne, Bernard v 470 Hyslop v. Jones 019 Inglis v. de Barnard 116 International Bridge Co., Canada Southern Hallway Co, v 706 Irvine v. Union Bank of Australia 2.')7 Isemonger, Stuart v .'jOO Island of Cape Breton, [n re 201 Israel V Hodon 105 Jenning V. Hill 7,')9 Jephson V. Riei'a 434, 453 Jersey, General Steam Navigation Company v 804 Jeunes. Maretl T 718 Jex V. McKinney 577 Joachim v. O'Shanassv v 291 TABLE OK CA«E8 JtU'l V (li^nni'ftl of .'is:. 711 lesnc... 315, it'i.'i ■ ;iK;. liiiiillon V «'20 TIO .. 7W lis V il'23 Wl CW t ill 171 ;)!)7 ryi r I't al.... 59, 46!) t nl. V (;«!» Hin ig V '275 «72 ;»3!l V 881 I's of French {)■'»;!, 607 laniiiiGhosc V. 80 IIB 11(1 5'2 jrth V 78!) :)l('iini (;o. V. ... .'ISO lul iiiikoo v.... i7 Nourn Marains 78 7-23 spie.. '210, 307, 014 5.-.9 • V ."185 731 jiiors for Hail- 708 'i7() OI!i iJ 116 ro ()o., Canada 'ay Co, V 706 nk of Australia '257 ,' .560 on, [n re "201 (05 7.59 434, 453 ■am Navigation 804 718 ,577 issv V '291 Johnson's pati'ut. In re 000 " V. Hlac;k 5(i() " V. Till' Minister^ TnisliD ol'St. Anilnnv's church, Mont- real II!) ilones V. (Joilriiii 352 " V. (luugh A al 84 " , Ilyslop V Oil) V. McKuiisio 303 " V. Till) Stansti'ail, Slii'lluril anil Cliaiiibly Kailroad Com- pany 570 Jones, Walker V 397 Jounienjoy Cooniloo v. Watson 000 Joykissen .Mooki-rjci.', The Queiju v. 87 Joze Alves Dias, the gueGu v r20 Juilali, M(;(;arthy V isil, ois .luililiiw, Spijiiiirr V i73 Juilgi's of Uiiti>li (iuiana, Mr|)rr- inott V 103 Juilgi's ol' tin- High Court, Norlh Western l'iii\ iiiees, Ni'Wtiiii \, I4S of .Nrwl'iiuiiillanil, Kiiier- son V. 144 Judgi's of .'•'i' ' Zi'alanil, Hiiniiy v.. I4i Jugguteliuii ,.., (iooroojersail Khoouil \ ', 70 Justici's of Honiliay, Fawii'tt v. ... 138 " of till- Ciiurl of Ciiiniiion I'lea at Antigu.i, In re 143 Justici;s of Sii'rra Li'imi', llainy v. 409 " •• " , Siiiitii V. 408 HZ Kanachee Hove Sahaba, Secretary of Stales of India v 449, 000 Kay's |)atenl. In re 597 Kelly V. Coslett 10'2 " , Smith V 300, 550, 550, 557 Kemble, Allen v 451, 790 Kennedy \. Purcell 91) Kensington, hire 118 Kent, Attenborough V Ill Korakoose V. Urooks 408 " V. Serle 577 Kershaw v. Kiikjiatrick 005 Kielley v. Carson 5'29 Kierzkowski v. Dorion 815 Kilborn, Boswell v.. ..70, 117, '299, Ol'i, 718 Kilgoiir V. Aii'xaiider O.ii Killey, Lewiu v 830 King, Liiiilu V 78 " V, I'iiiMineault 141), 0-21, 800 " , Sherwill V '280,305 La Blache, Hangel v 449 Labouehen.' v. Tupi)er 800 La Clie\roliere v. La Cite de Montreal 399 La Cloche v. La Cloche 378, 031 Ijalitte, Galian 400 Lafonlaine, Pitts v 019 Lagesse v. Lagesse 820 Laing v. Ingrain 1'25 Lait V. Bailey 101 Lamb, Bank' of Toronto v 5'20 " , Canadian Bank of Com- merce v 520 V. Macdonald 640, 045 " , Merchant Bank of Canada v. 520 " , North British Mercantile Insurance Company v 520 Lambert, Young v 609 King V. Tunslall.. 475, 775, 800 Kirby v. The owners of the '■ Scindia " 730 Kirchner el al., How el al. \.... 59, 409 V. Venus 00, 3;)8 Kirk|)atrick, Kershaw v 005 V. South Australian Insurance Company 428 Kisto Naulii Hoy, /// re. 032 Kleiiiwiirl V. Cassa Maritana of tlenoa 189 Knight, Singleton v 597 Knok-a-Sing, Attorney General of Hong Kong V 401, 008 Ko Kliiiie V. Siiadden 73 Koung ISi'hari I'attuk, llaiieshur I'ersliail Naniiii Lingli v 092 Kosler, Duncan v .")0i Kraegelin, Board of Orphan v 025 Kyle, Cameioii v 3U0 Lambkin v. South Eastern Railway Company 84, 022, 039, 682 Lamer, Zucasti V 215 033 La Molhe v. La Mothe 552 Lancarter's |K'ilent, In re.... 539 Landry, Theberge v 92 Laneuville, Anderson V 320 Lang i Co. v. Held i- Co 390, 035 Langlois, Valin v 94 Langtry, Dumoulin v |23 Lapraik V. Burrows 52, 568 Lareau, Dunn v. 045 Larios v. Bonany y Gurety 311, 473 " ,Canepav..' 335, 344 Lavallee, T/'nge v 807 Lawless v. Su'livan 139 Laws V. Smith 567 Lawson v. Carr 213 Leathan et al.. Moss et al. v 8I4 ■■"»-.-^it,i |^ ,, )m ,i „, pp ■jjjjjjggMgprr fllO TABLE OK GAMES Li.' liri'liJii V. Aiiliiii " •' , DAIIuiii V " " V. Kiiriis LiM.'lairi', Miirriii'liiiiK v Li'uli'i'i' V, Hc'iiiiilry 774, 77(>, Li'ilui', I'riivini'iiil liisuninci' Ooiii- jiuny of (^itiiiilii V 'il'i, Lo<', Mui'liii V Lo Fiiuvrc; v. Li; l"'i'ii\ n " " V. Sullivan Lu Unllais, Miiu^'it v Lt'lsiiiiiuti V. Oorhruii*; Lt'llevrc, Uosloii v.... Mi, l|-2, •li)\, Loiubki!, Orionliil Hank (^urpora- tlun V Luinn.surii'r et al,, L()),'ati v.... 718, LempriLTi.', In re " , Beciiufl V " , LunilonChaltorodBank orAiislralia v V. Vlli.Tt Li! (^Ufsiiu V. Nii'(i|l(> Li! Sueur iV Li' llii(|Ut't, Kiillu v Lt.'llci'sloill V. Uriiors Li!vi V. Ayi'is Lu\ it'll V. The QuL'on Lc'vinger v. Hegiiiu Lewiri V. Killey V. Wilson Licuteiuinl Governor of Van Die- muui. Land, Montagu v Linilu V. Harrell O'J, " V. King (IS!) 47(1 407 71 7N4 4ii nn 7«N (114 (i(i7 l()K Tin l()'2 (ill I 718 (JI4 :i'40 8();i 415 'JO •28! 8;t(i ■.m •4(i.i /8 LimlMiv, l>iiiial0, Lucas, Moore v Liichnieechund v. Mull " , Haddkisseu, Kuui- churn Mulliek v KiO, Lulloohhoy Mottichiind, llt-r liigli- ne.ss liuckmohoye v 455, Lyall, V. Jurdinu 81, Lyons v. Ilollnung 5(i.-. :i(iU 7!I2 ;I8U 7,11 (l.'ll) ,15!) •m 718 7()5 552 1.58 453 40(1 •277 702 5!) ■471 IU8 471 329 701 118 Is/L MacCorkill, Ward v 739, 803 Macdonald v. Boll 7!)3 " V. Lamb 040, 045 " , Nye V 333 V. Whitt'lleld 170 Macdougall v. Prentice 591 Macfarlano V. Leclairc 71 , Whittle V 594 Mackav v. Commerciu. Bank of New Brunswick 025, 049 Mackav v. Roberts 213 Muckullur V. Bond 790 Maclaren v. Murphy 313 MauLean, Brusyer v 757 MacLeaii v. Duinniett iV ul 400 Muclure, Marshall v 247 Macuiillen, Mi.tual Provident Lund Investmi'ul Building Society v. 607 Mucpherson, Atlornev General of New South Wales v 279 Macpherson, Borough of Bathurst v. 20U " , Counter V 538 .Urijuhartv 384 Macrae v. Goodman 290, 397 Maddook, Allen V 343, 838 Maddock v. Fisher 210, 217 Maddox, Trask v 1 12, 735 Madras Haihvuy Company v. The Ze'mindar of Curvetinagarum 089 Malconison v. Baldock 502 " V. Clayton 033 " , Man V 570 " v. The General Steam Navigation Company 224 Mulo, Migneault v 343, 359, 850 Man V. Malconison 570 Maiiderson, Attorney Gi'iieral of Jamaica v 604 Manick Cliuiid and Kaisreechund, Chotaylullv 239 Malhvo March iV Co. v. The Court of Wards 595. 764 Marchais, Beal v 223 Marchese Felicissimo A])ap, Strick- land V 828 Marchioness of Bute iV al. v. Mason \ al 650 Mark, Dean v 219 Markwick's patent, /n re 598 Marois v. Allaire 71 Marquis of Hertford, Croker v 450 TAUI.K (IK ('AHKH Dll .Vi.") ilt, ,1()(1 iailk (i:i!t, l\n ;o. V. iiiird ... :m 731 V iiankiii).' Co., N-^ (i:iO ;i.v.) 'I'A I'ldl.... l-ix, 7 IN link ol' Aii»)li'u- V 7(i.') (ink urAiislnt* i j.V2 link of Auslra- i:)7, \:,H irrs for claims i.'ia I al m) al. In re 'm Ts fur till' (Mty m-1, 7(i'2 I. al. V ,■)!) Idcisub Uliulla- M, .'i7l IU8 Mull 471 V al. V. Leathan iV al Moss V. The African Steamship Company Mostert, Uenyssen v Mott V. Lockliart Motz V. Mor(!au 51, Mount, The yu(!(m v Muir, In re " , Barton V 295, " V. Muir 65,475, 590, Mull, Luchmeechund v Mullick, Chowdry v " V. Mullick Murisson, Tobiii v Murphy, Altorm-'y General for New South Wales v Murphy, Dill v " & al. V. Glass " , Maclaren v " , McConnell v " , Reginav 91, 758 353 774 203 764 711 120 144 000 405 057 120 241 08 568 107 108 471 204 603 114 69 032 296 340 309 559 599 331 814 563 801 294 632 282 468 048 871 471 113 013 ()36 283 762 627 313 246 282 912 TABLE OF CASES Murpliy, StPole v G30 Murray, La BaiKjUo d'Houlu'lii- fe'a V o31) " , Canu'Jd Goiilval Huilway Company V 81, lO'J Musadei' Maliuniud Cazum Sliera- zeo V. Mutiza AUv >ialioino(l Klian '. 0-29 Musgravo v. Pulidu 'i'J'l Musliaduu Mahomed Cazum Slie- razeo. In re lifl Murrow V. Sluai'l l"i Mussourie Bunk V. Rayiior 81, &Ui Musumul Anionna Kliatoor v. Had- liabonod Miss(;r Mutur V. Cliipchase " , Bwuict' V 319. 395, Mulrie iV al., Blnney v Multy V. Ua.jnli Roy Mutual Provident Land Invest- nient and Uuildinf? Society v. Macniillen Mutusawniy Pagavera Y(?ttai)a Naikerv. Ventatasniara Myc!;veest, Attorney General lor the Isle of Man \ 70 041 592 114 3^C McAlpin, Pollock v AIcAndrcw, Cleary v.. 63, 61 1, 732, McCarthoy V. Judah 180, McCleverty, Rej-'ina v McConnell, Murphy v McDermott, In re " V.Judges of British Guiana McDougall's patent, [n re " v.McGrevy McEUister v. Biggs McEvoy, Dull'ett v McEwan v. Guthridge McGillivrav, Montreal As.surance Compa'ny v 427, 612, McGihbon v. Abbott 776, 829, McGreevy, McDougall v McGusty, Frankland V .561 743 618 607 246 102 103 600 303 6HH 638 421 657 830 303 624 481, Mcllwrait, Miles v McKav, McLean v •• "v. Rutherford 737, 336, McKellar v. Wallace iV- al 47 McKenzie, Jones v MeKinney, Jex v MeLuughan, Brown v 73, McLaren, Caldwell v McLean v. McKay McLeod, Bank of New-Brunswick v. McLister, Gardem Gully, United Quartz Mining Company v McMullen, Giblin v 161, " V. Wadsworth 316. McSweenev, Wallace v McTink v. Bent 6(i7 73 293 665 247 772 , 78 363 577 764 702 247 104 625 623 451 615 310 3sr Nahon v. Pariente 83 Naiker, Fischer V 205, 250 Naurad Sidhee Muzur Ally Klmn V. Rajah Oajoodhyaram Khan 627 Namaqua Mining Gomi)any, Com- mercial Marine Com[)any v 432 Narainia \ al., Sumboo iV al. v 624 Natal Land Company v. Good 688 " Land and Colonization Com- pany, Mayor A: al. o*" Pi(;turma- risburg v 472, 768 Nathoobhoy Hamdass v. M 'oljee Madowdass 68 National Bank of Australia v. Cherry 163 National Rank of Australasia \. United Hand -in -Hand and Band of Hope Company... 39(), 628 National Bunk of New-Zealand, Ward v 795 Naylor, Slattery v 259 Neaull, Price v 334, 660 Neaylon, While v 688 Netherlands India Sea and Fire Insiu'ancoLom|)any of Bttaviu, Brugmandas v 427 Nelhnrlands Sti'amboats Company V. Styles .". 21S New-Brunswick and Canada Rail- way Company, Wickham V. 394, 718 Newfoundland Railway Company, Government of Newfoundland V 247 Newton v. The Judgt!s of the Higli Court, Northern Provinces 148 Nicol V. Askew 349 NicoUe Charles, //) re 434 " V. L(! Qui'sne 614 Nionwerkerk v. Reynolds 107 Noonan, Ilollynian v 291 North Australian Comijany, Black- more V 293 North British Mercantile Insurance Comjiany v. Lamb 520 North German Lloyd Steam Com- Ijany v. Elder 217, 330, 562 North of Scotland Banking (loni- pany, Hamburg American Steam Navigation Company... 462 North Shore Railwav Conipanv v. Pion 687, 697 Imtoor V. Had- 70 |-2» ... 319. 395, 041 592 114 I^iiiid Invi;st. inft Sociutv v. "..... G(17 Til Yetlapa iMsniaiM 73 Gonoral I'or 293 481, 665 247 737, 336, 772 \al 47, 78 363 .577 V 73, 764 V 702 247 w-Brunswick V. 104 Gully, United lomjianyv 625 161, 623 worth 316. 451 ci' V 615 310 iboats Compaiiv .". 213 li (Canada Uail- Wickhamv. 31(4,718 Iway Company, 'Ncwloiindlaiid 247 gos of the High n i'rovincDS 148 340 re 434 ne 614 vnolds 107 \' 291 loiupany, IJlauk- 293 intiluliisuranou uiil) 520 j(l Stoam Ccjni- 217, 330, 562 Banking Coni- iii>' Anioriran ion Company... 462 I'av Comijanv v. ...: 687, 697 TABLE OF CASES yi3 Norlii Witit Trans] lortation Com- pany V. Beatly 258 Norlli(;ui(! V. Douglass 339, 443, 455 NorLiiii, .Vi'liiitlinut V 465 's jiali'iit. In ic 5!)l) V. Sp(j(jni'r 3(1(1 V. Stiiai'L S(JU Noui'a Narains 'lao v. I'unl Hliaw llussei) IK Nowlaiid. Uuiiipliii'V V A'} Nunu's, lliilclilnir v. 7.;:i V. Cai'd'c .'ill) NutlvlollSi'Ml V. Di'ul 172 V. O'Ouwda 72'.) Nye V. Macdunald 333 o OliiTuinllcr, HiHcmi'vi'i' V 4iS Oi'i'an 8U'aiiishi|i Cunipanv \. An- i:/ir A Co '. .'., 233 O'Conni.r v. Bank nl' Ni'w S(jiitli Wales ;i!)7 Oditehurn I'aul, I'lasI India Co. v.. t'l'i'i O'Dijwila. N.illyloll v 727 O'Civadv, S nilJi v 'i'.) Olirlollv. Bn.^eall 2(12 Onli'. Maiiow V S2(i " , Skinner \ 57(1. S14 Oi'ieiiljil Bank, lanilsay v 639, 792 Orii'nlal Bank (^(ii'poi'., (Chapman v. 571 " " " , lluare v 41.3 " " " V. l.einbke.. KIS " " ■' ,lVineev. I5S, KIS •' •• ■' V. liielier... 'i(l(l V. Wright... 76(i Ornislown, Baidv ol' New Sdntli Wales V. 76, 159 O'Houi'ke et al. \. Comuiissioners I'ur liiiilways 6.38 Orpliaml Be.ird'v. lieemrn (i-.l(), 621 I'arllic l''ii'i' and .MaJiU'' liisiii'ance Co., .\ndeisiiii I'l al. V 425 Page V. Ciiwasjee Ivlnljee 709, 719 Palmer, ClMU'i'hwai'd v 214 \ . lliili-liiiisiiii 585 Panel, llainel V 553, 5K| Papayanni, Call v 218 " \'. lIoe(piard 736 " V. Ilnssian Steam Navi- gation and Trading Co... 43S, Pa<|liel. Seiitt V Parienti', Naliim v Parkei', fa'emidi v , Montreal City Passunger UaiKvay Co. v Parson, Cilizoii Insnranci; Coni- |uu\y ol'tlanada v Parson. (,)ni'en Insnr.anee Co. v I'as al, lliiL'hes v PalLnt, Bl.a'ke v Palerson, HeLrisli'.ar of titles v Palni'lli V. lleddli' J'alii'van el ;il.. Credit l''(inei,r el' ,Ma((jili(it> V 447 549 X3 «(l 12(1 497 497 339 5!)7 68,S (19 Osliiiriie V. i'^ales " V. M(agan O'Shanassy v. Juaehin Oiler, Si-lia'elit V :i(is, Olloman Bank, Bl.iek v 172, (JngCheiiH-Neo, Vi'apChi'ali Neo v. Owners oI'IIk^ " Araeim," •■ Ameri- '/an " and •• Syria", Union Steainsln|) (vimp.ii.'y v Owners of the " Lion '' v. Owners of the ■■ Yonktown " Owni'rs of the " Norway " v. Ash- burner 58, Owners of tiic " San Roman," Anderson v Owners of the " Seindia," Llrhy \ . " " Sti'athna\er ",Tiuu'- liull V Owners of the screw steamship "Euxiue ", Harvey v Owners of the "Thomas Allen ", V. Cow Oxford V. Pruvand I'an/e, Si'neeal \ 2l^. Pearson v. Spmiv Peas V. Cloaliee 62, 304, 389, Peggie, Wooleott V Peninsular and Oriental Sti'am Navigation Co. \. Sliand. 2112, Pennant v. SiMi|isun Pennington, Bateman \ 345, " , Lii'lerwiiod v Poro/oboye, AsdasiM'r Curseljee v.. Pertaub Sing, Ranei; Birjobnt- tee V ' I 15, Pelley V. Catto Petroeochino, Me'sslna v Philip|is, \. Marlin V. The Highland Railway (;(]nipanv Philipps, We'-::, V Pilkington V. (;ominissionei's Ibr claims on I'ranee PInsoneaidt, King v 119, 62(1. Pion, Norlli Shore liailway Com- liany v i I'p'vosl V. I^a Cum|ia;.'iii do Fives Lille Priiv V. Xi'anll :t:t.'^, ■' , 'I'll'' (,)uern \ 270, Prince V, (lawmen 120, \. Oriental Bank (iurpora- lidU lo8, I'rinsep and 'I'lie East India Com- pany V. I)yi:i' and Soinln'O el a'l .' 27."), :!.")«, Pros!. I)e Cdnias v ... Pi'(jli'i'i). .laidison v Prov.ind, Oxlbrd v Provineial Insurnnei' Ccinipany , ! (lanada, Browning' v (iiO, Pi'ii\ ini'ial Insnrance Cunijinny ol' Canada, v. Lediic; IKi, I'rowse V. The European and Aineriean Sleani Navigation Company I'ulido, Musi.'rave v Pullay, Alleii v Pnreell, Ivenneily v :;3'J :ii 000 701 2... lOS SI!) 06/1 .")02 :i!)2 ■'i7;i !)!) Q, Qu.irii' v. (^)uani' Quayle, Beodinan v " V. Davids(jn Quebec Eire Assurance C(impany\. Andi'rson Quebec Eire Assurance Coinpiinv V. St. Louis A- a! :!7;!, 'i2.K, (;17, Quebec, Marine Insnr'ancc ( lompany V. Commercial liank nl'Canaila Ouel)er and Uichniond li.iilway Company v. Qniiui Quebec Warehouse Co'y, Allen v... Queen V. A^,'a Herlioolie Maliomcd " Antrers, Attorney (Icn.'ral of Quebec v Quci'n, li.ilien, V , Biirtou iV al. v V. Belleau , Blai'kwood ■; 'i.'iO. V. Bur.ili " V. Casaca " , Clasanova \ •• , Cloele V V. (!o(ile 2 iO. '■ V. Dalliinore , na\enporl v , Del C.impo iV al. \ i03. , Dionisis \ ii'il , V. Doulrc V. Eduljcc Hyramjee " , ExchauL'c ll.ink iil'Canada .■,rii IS I ,s2:! 70 i.iV 002 IO!l 7.'i7 'iS.-. .'l.'iS 7.V,) iO.! .s.so 7i;."i :ii)!) 127 'lOi; :i7!i 2!i(; 2S0 7.'i!) ')02 SO COS Queen, I''alkland Island Company V .'. .•!!) (^Jueen, CrOOPf-'e v Ol!.') , Ilarrisson v .')04 V. Ilildebrandt liiO, .'ii5 •• , Hill V .")80 " , Hocipiard V .ilii ,JIodi-'ev ."ilo " , llUi-'heS XHl Insurance Company v. Par- son '. i!l7 Queen v. Jovkisscn Mookcrjee ,S7 v. .lozeAlves Dia.s....' 120 •• , Levien v 00 " , Mount V 2S2 •• . Price V 27!), 7(il •■ , l{iel V 01, ;i«'i, .")!!) " , lioli'l V :?.i2 " , linssell V r,\\ ■' 's Ailvocalc, lleHiheniaL'e Siman .\ppu v Queen. Sorensen V .'|.">i, 'i.")S, , SI. Catherine Millinj: and Lumber (;oni|iany v (,)ui'cn, Smith v A al., Windsoi' Annapolis liaihvay Company \' V.Williams , Wilson \ Quiiui,Qnebei-aiid liidimond Hail- way Company v G02 2SS '!.")!) 2S!I 000 :!i:t HO!) ;| S.39 11.' lie Five? Ml ;!:!'■, 0(10 r,<.i, 701 |-2(), 2'.t, Ilk Cui'iioi'ii- \:>H, 108 iiili.'i Cdiii- iiiil Soniliro ....'i7."), .'iJH, «I9 0.'iH 0\',i ., -i.wt (iiiiii|)iiiiv . ! i V O'lO, 064 Ciiuiiiiinv of 'ilO, i'22 ur()|ii.'iiii and 111 Niivigiitioii .")0-2 :!!)■: 'i7:i ill) ^l.'iiid (!uiii|iany ^'1 OTi '\M lit 3i0, 'lir) ")H0 ■to 'i :,l,-. KSI niiipiiiiy V. Piii'- 'ili7 Monki'l'Jci' Djjis.... .s7 1 -'0 'ID ''7!). 701 1)1, liO'i, .■)II) ")l'i ', IIiMlihi'miif-T •'SK io'i, i.")S. no Milling:' anil any v i.VJ .V27 "S") Isor Annaiiolis any v Itichmond Ilail- 000 ;ii:t :)(ii) 00-2 TATU-E OP CASKS 12. 01.-) Hadnkisscn MiUcr, Bank ol' Ron- pal V 7li:i Hadaiiaiitli Soin. (iooroooliuni Soiii V li;i Railclillo, Corlolt v 'lOS liadliahi'Mod Missor, Mussuinat Awi'cna KliatiKirv 70 Malin, Soaros \- l,s.!,l,Sj Uaillon V. Wood ."j.iD, 70H Ilainy V. Bravo 3:)7, Ol,' " V. Jiislico ol'SloiTa J-i'oni'... 'ilill RnjaliOaJiKidliydrain Khan, Naiirali ^idlii'o Miizur Ally Klian v.... 027 Rajah Praii Kiskon Sin^r, Ranro [Iiirrosonniln'o Dijjiiali v.. 1 1 i, I I'l Rajah l{oy, Mutly v Hi Raja Row Vononla v. Ii'noogoontv Sooriah .'. ."i^S, li.lS Rnji'ndi'o, Ropors v 70 Rajiuidi'inarain Rao v. Rijai Gooiml SinL' i70 Ran; Cooinnr Oiondoo v. Chunili-r Canto Mooki'i-ji'o '^O.') Ramanauth (Jliowdry, Doorga Doss (lliowilry V 73 Rani''' Hnrroosooili'i'i' Doliiah v. Raj,i!i I'ran Kislion Sinj.'. Il'i, II.") R.inii'huii! Mullirk v. Lucliniro- rhnml li.'iilaklssnn 100, 32!) Raiii'shiir I'i'ivliad Naniini Sinj.di V. KoonL' I5i'liari I'atlnk 0!)'2 Raniloll Tli,i''koosi'ydaPS v. Soo- jiininull I)lioiidmnll 3S3 Raniloll Thackiiorsoydasf;, Doohili- dass Pi'tliiiihi'rdass V 3Si. 700 Ramsay, //? ;y 113, 117 Randoll, Tin; Sonth Australian In- suranii' (;oni|)aiiy v 730 Rani'o nirjohiittoi' v. I'ortanh' SinL'....' II."), 117 Ranoo Siirnoniaxi' Dorsoo, Advi)- (•;ilo Cfnorai of lirniral v '1.3.') Ranpol, LaHlarh,. \ ' .'I'li) Rapsi'o I?irjol)utli'o v. PortaiiO Sin;.' Ratti'. IJoo'th V 7(17 Raxiior, Mnssorio Rank v X\, 020 RM;ri\iT(il'l^anil licvi-nniMil'Soutli- land, Ri'll v '2!I3 RoilpaUi V. Allan i\ al .")l.i, 70i Rodtiold V. Corporation ol' V.'iok- liam OS'i Rocd,Atlonii'\(;onoral or(,)ni'lii'i' \-. ,")17 Roonan, Orplian Ro;iril v 020, O'2'i Roiil A Co., l.iiii'.' .V O). V 3110, 03.") " , Roi.'1'rsoti V 0.')'i Roirinav. Rrrtraiid... 110, '271), '2S-2, 3(i.') " V. Carlin .'I'lli " ,Lo\iiii;orv ^Sj V. Mc.Clf'viTt\- 007 V. Mm rpliy. Ill, '2.S'2 Ri'L'istrar ofTilli's V. P.-itcrson r;,SS Ri'llllVrV. CilWii' V 7111. Sj.'i Ri'iiaiid V. 'I"iiiH'aM;.'i'aii X'{) Ri'inix- iV al. \. Moat t;; Ri'lH'OSrMtatixOS ol' the Islilllll 111' C.roiiada V. Sandorson 'iO,"i Rosiirn, Pr.siili'iil, and iMinnhiT.-; nf Or|ili,in Roard v |-,''i Ri'ti-mi'yiT \-. (Jlioruinlji'r i.S Rflynar. Portoons v .")'i lO'vnolds, Nii'iiwi'rkork.. \ Iii7 Rhodis \-. lihodi'S S;'!) Rirliai'd V. Rjrloy | j | Hirhai-ds V. Attornoy (Iiiii'imI of .FaniajiM '. S20 Richards, Dran v -.Ml Richardson, (Jriro \- 7-.!(( Rirhi'i'. Oi-iriital lik Corporation \. iOO liirhor V. Voyi'r LSI. 3'i'2, 3)S0. O.iO Piiol V. Till' (,)ii('rn Ill, 301. .")11) Riora. Ji'phsoii V 'i:ii 'i.")3 Hoiii'rts, l.lovil V :(,-)i) Roiicrts, Mack.iy V '13 Rol)i'rlson V. I)a"y 7f)(i V. Dniiiaros'i I 17. 310 V. (lovi'riior (Irnor.-il of Ni'W Smith Wall's i70 liohorlson >V ,il., 'j'li.' Iv'ist India Company V ii) Roliin. 'I'hiirnton V 7iO Uorhi'rniisti' V. Dnpoiit 720 Hoilf.'1'i' V. Till' Com]iloir .i'l-;.— coiiipto di' I'.iris 723 Riiilaii. Israel V 'ill.") RoL'i'rs V. Dull 3(1,'), ."i.S'i , Ilaiiiiiiiiinl \- .'iiiD \. li.'ij.'iidrt) 71) RoL'i'l'snli \. lii.jil CVl iinli't v. Tlir(,)llri.u .rr.! Roll'.- and Bailey and Rank of Aii.s- tralasia v. j'lo'.vor S;illiiip and Coiiipain 'il'i. .'il)'2 Rollainl V. Cassidy I:il lloii.'ild. Ivhv.irds \- .'illS Hose, Rlaek \ C'l Unss. Bland v '217, 330 Royal Mail Steam I'aekei Cumpany V. Bi'.iham .", 030 liiiikm.'ilioye. Her Bii-dnioss \ . I.iil- looMiov MnlUi'liiiind 1").'), 701 Russell V. the gneen ."il'i Russian SS. "Youri" v. Rriljsh SS. •'Spearman" '233 Russian Steam XavJLration and tr.idiiiL' Co., I'a)i.i\;iniii V. 'i3X, Vi7 Rnlherl'nril.Mek.iy v..'.... ■2.'17, 330, 77'2 Ryan, Ciohind Clnindor Si'in v 001 " , (3iiinder Seiu v 00'2 H\i|er,B;ill,i//'i \- i'l") ii\land v. Di'lisle '23'i ■■,*'-«^ UK) TAULli Ol' OAStlH c t Snck, Van Ilasscll \' 500 Siiiiicliiii', Diiiiii'l V W Siiissi', Si'i'i'iidiU V 'ji.') Siiliiicii V. Duiicomiii.' 70S Siuiclit'z do I'iiiii. Tiulury V 241 Siiiiili'i'soii, Ili'|iri'si'iiUili\i's of tlic Island of (Inniada v 'lO.') Sant V. Sant 74K Sanlacana v. Ardeval liii'i Sarclii't. In re. I'JO Sastrv Velaider Aroni'j-'ai'v v.Scin- liecutly Val|.'alii' .' '>^>\ SanvaL'i'aii v.Gaulliii'r 17.!, 0'20 SaviTsv. Whillifld 'Mm Sciiari V. OUer 3(l.s, .13!) S(;litniilirv, Sonicrvillc v SOi Scliivlz. Bulki'lcy V ■'I'li) Si'iluma V. Sd'viMison TMl, .")0n Sfdtl iV al., Gordon v .M)l " , Ilarrissnn V S.j " V. l'ai|UPt bV.) " A al.. Strouf.' iV al. V .")07 Scmdi's \-. I'lowriirlit .'i.')7 Sccri'tarv ol' Stab' ol'India v. Kana- idiiM' lioye Sahaha .'I'lO, 000 Snetui Halioo v. Ilurkishen IJuss... 47 SiMnlji'cntly Vaigalie, Saslry V(!lai- diT Ai'oni'f/ary v o.")l HiMninaii'i' do St-Snlpifi', Ilo- rion V 0't3, 7'iS Srnri'al v.l'anzi' 'MS, rm SiTi'Mdal, \'. Saissc .'i-'i.") Si'i'li", J'Ci'rakuosi' V .")77 Si'rvi('i', IJali'inan v '1'>1 Si'lo Liicliini'iM'Imnd V. Si'to Zoi'a- wnr Mull ll'i Selo Zorawnr Mull, Si-lo Lnolinici'- clnind V 1 1.') Sliaftoo'sCliarilyalllaydcnnridL'i', In 7r, 7'iO Sliand.I'i'iiiusular iV Orii'ulal Slciin Navi!iali(jn Oouiiiauy v... M'l, 4.")'2 Soliand, Craiir v Il.'j Shaw V. .Ii'll'rcy ;i7IJ " iV al v.Tiuiai'u Ilarlimir Hoard Hill! Sliavli's, (Iri'at Slii|i (;i]ui|i,iiiv v '2I',I Shi'lVcr, Vanx V .' 21'.' Slicllv, Moorr V Ol)!! Shi'iilH'rd. Hi(:<'ard v VM Shi'iisloui', I)a\isiV al v .'j'ri Shi'sli'v V. Illld.i'rl 7:il Shcrwlll V. The Ivinv 'im. 'Mi'} Slii'rwood, Thomas v '21)4 Shiri' V. Shii'p 79 Shilla, Monlaipnac v 000 Short, Atri'iicy (;oui|iaiiy \' 04,1 Suliu.'ir.'iin (ihoosi' v. Ifollodhin Doss ,S0 Sii'nii'ns\. Heirs ol' Bul'i' IIS Sillerv v. Ilarmanis OIS Sim, Mor}.'an V -M'l, H40 Siuion V. \'i'rnon (iSl) Siunnons V. Miteln'll 7.j8 Simjison, Blifjli v .")."i'.i, 7;i2, 7.!.'), 74;i " , I'l'iniaiil V 007 " , Smith V O'll " V. For(;i'slr" ,')5| Simson, Bauk of Montn'al v .")7I " , Wilkinson \- lill.") Sinclair, Brou^rhton and tho f.'o- voriuni'nt of Inili.a .'107 Siiijili'lon V, Kniirlit .')l)7 Sinislor's |iat(Mit, In re 'i4.') Sixhy, Iloi'rick v IIIO Skinner, In re Ill) V. Ordi' .'>7il, .SI4 Slallory v. iNaylor '^M) SuKM) V. Bryor s;!7 Smirc V. Fraui.-is Oo2 Suiilli, Australasian Sleaui Naviea- tiou Oompany V (ill, 017 Smith V. Brown 4si " V. (;ar|M'nti'r ioi) " V. Cr.'swoll 711 " , l)(in^das> \ J'lII " V. Gould iV al SO, :i:i7 " V. Harrison iV al .ISO " V. .InsUccsuf Sierra Li'oni' 40S " V. haws .')07 " V. OGready 411 " , Port Canning land (^oui- pany v .'lO.j " V. Simpson (i'll " V. SI, Lawronce Tow Boat Gom[)any '.'^.i Smilh V. She Bank ol New Suulli Wales is'i Smith V. The (,)ueeu 2.^11 " V. Ure .V.M " , Wood V .'lOO Snadden, Ko Khine v 7! Soaresv. Halm ISII, IS.^ Sienrs de I'llolel-Dieu v. .Midille- miss ;)7S Somervillo v. Schi'mbri SO'i Soojnnnuill Dhoiuhuull, Itauiloll Thai;k(jorseydai's, \ .iS:i Sorenseii V, Tin' (^ineiMi 4.")'i, 4.')S, 4.J1I South Austr.'ilian Insurance (loui- ]iany, Kirkpali'ick v 42S Soufli Austialian Insurance Com- pany, V. J{aud(!ll 7;iil Soulli Austr.Uian Banking Coui- jiany, Ayers v \hl South ]';,'islerii Ifailwav Comjianv, Lambkin v 84,022, 0:(1), 0S2 S])i'aki'r of till' Legislative Assemb- ly of Victoria V. Gl.iss 1111, .''j.'^r) filS vll'i, ■(.'(() i'M) IhH )."l'J , 7:!'^ ::!:), 7'i;! (i()7 D'll ;.r)l ail' I'U. ll V o7l 1 llll' ^.'0- '11)7 :.!i7 r,. H.'i.'i 1 'JO ll'l fiTO cHl/| ■•r,i) Ml d;.',' Sir, nil Nm\ JL'M- (il 1 (117 (XI ■,(l'.l T'.l SC, .li'.l :i:i7 III ;is(i Sicn .1 l.cdiie.... . 'lli.S .')()7 ■'(1) nn 1111(1 (^niii . :i(;r) (; '( 1 Jiice 'I'ow Boiil 'i:.-) < (il NrW SiJlll 1 IN'I . 'iMI ,V.)I (' \" . i,s:(. is:, UllMl V. -Ml. Mil . :i7s ii)l)i'i .SO'i iliiiiill, iiiuiihill ■irs;, \ .is:! ili'i'll ''l.")'], 'loS, /i.V.I liisuranui; (juiii- cick V V2S liisiii'iiiicc (]om- li'll 7'1() Baiikiiif,' Coiii- 1.^7 lilwiiv Comp.'inv, «.'(, ivn. ivM) (IX'i 'isimivi' A-s('iiih- V. Crl.l'^S II!) r,3;) TABLE OP OASES 9i*ir Spoarinnii v. Tlii^ East Iivlia Haii- wiiy (;oiii|ii(iiy lis S|i(MiiM,', I'l'iii'siiii V ''!).'! SpouiiiT, (^rawrnnl v ."id", 7(i() V. .(udilow 'i7.l , Noclon V :i()(l Sreo Mullv liaildaiiioiK^v Dossrc, GiUKlaliurScal v.....'. .'iG9 Stap'v. (iilllitli 022 St. Aiiili'i'w ami Qin'biv; Hallway (l(Miipanv V. Hnioklii'lil '172 Slallyhcass vt al, lluml v 171 Staiiibnl V. nmncttB G2'J Slaiiti'iiil Sliellori! CliaiiiMy Hail- way Cdiiipaii.y, Junes \ fl7(i Statics of. [iM'scv. Criliriui \ 7(i2 " ' /// ir 'M'J SI. (l.'illii'i'iiii' MilliiiL,' ami laiiniirr (jiiiipaiiy V. Till! (^iiri'ji ."i27 Sti'i'li' \. Murpliy (i.")(i V. 'riiDiiipsiiii 7'ii) SIrplii'iis V. Hr-iillirlil 18:1 , 'I'lir M.iviir I'l, al, (irMi)iil- ivai V ". ;i(;s Sli'vciis \ . (Jimiii'V 2l."i, -ilil , Criii.ll.'v' V 2I.S , Williaiiisv (J'lH SicM'iisDii. HiMi' \ (i:!.") , Srichnim V 2:i--'. .")(J(l SIrw.irt. Harnai v I,S!) V. Str\v;irl :i'i:i Tairliol'iTPO, I'rixinm' \' 'll'i, (IfKl Ta'ti'in, Yoa v 1 1 1 'I'allKinii \-. Amii'i'o 2(1(1 Tavldc I'l al. v. Bank of New Smiili ■ Wales T'.l.'i Tayloc i^t al., Bartim v ."i.'id 'I'easi', Cain v 2:i,S 'I'l'iinaiil I'l al. v. Ildwiili'uii (is'.t 'I'l'i'i'v, llaskirif; V. :!'((! Till' •• Airi-a '■ 221, :i:i'( " " .Mimi 22."i " "Alii.v" :;:;■,', (i:i'i " " Alim' ami I'',iiiii\ " :iiO, Vi.'i " " Aiiialia ■• ; 218 " " .Viiii'lia " 22."i " " Aiiii'i'iipii'" 7:i8 " " AiiL'ln Imlian " 227 •• "Ann" (i:i:i " '■ Anii.'ipolis " 7'i,'i " "Aipiila" 12(1 " " Araron." • .Vnn'riraii " ami " Svria " -2ii " •■ .\ra\es" 22(1, :!:il '■ " Anjiisiunl lli'\vsnn"..(l'i, ,')()i, 70'( " "Ariel" ^:.S " " Ai-klaw" 2:!2 " " Alias" 7'i2 Sl.'wai't, Tliui'lnirii v 'iKl SI. Lawi'enee Tow Boat Cimiiianx , Sniitli V ■.. 22."i S(. Lmiis el al', Quebec Fire Assur- anci' Ciiiiipaiiv V. :17:1, i28, (117, 77', St. I.unis et af, v.'Sl. Lmiis 12.') Slowell, Toliin V 0'i() Straehan v. DmiL'al! .'),'>2 Straii'.'iV al" v. Srull iV al .'ilu Straltoii V. Syinoii 717 StrieklamI v. .Slarcln'se Feliei>>iiiiii A|iap 828 Stronj.', Banker Brilisli Nurth Ame- rica V -,'02, ."i'i2 Stnart, In rr I'lf) " , CiHiiier \ 2!)'i , DriieiL'e V I8S " V. Isi'niiiiii;er .">()() " , .Mnrniw v I T'l '' V. N'lirlon ,s(ii) Styles, N'l'llierlaiiils Sleiuiilie.ii (:om|i,iny V 2i:i Sullivan, Le Fenvri' v (ll-'i , Lawless V 1:1!) Sniiilioi) \ al' V. Narainia A al' (i2i Siiii FiivOltiee V. Hart '(2!) Supple. Ciiliminr v , 7:10 Swei'iiey, Bank of Munlreal \...l(I'i. (i.');! Swift V.' Kelly :i(l(;, ."i.'jO, .")."i(1, .')07 Syines \-. Cinillier :!N8 Svnion, Siralton v 717 The " AuL'usta " 75!) " Australia " .....")2 .")fi7 ■• •• Ava" -.:•>(; " "l]altira " " " lialavier" ...i.'ii, 'i.VJ 21;! " " Belleraplion " •' ■•I5eta" 228 .■)70 " "Blaek Prill, e" " "BnlilBne,.|ene|i " .. 22(1, ;!:ii -1] 1 '■ Bonaparte " 18(1 •• Bonruaiir le " 22;t " "Brinliililii . .. ."ll 127 " "livfOL'eil (:liris|el|>en " .. "C'llahar" 2:12 :,(!:( " "(larrierDone" ...112, 7:i.") .'idi ■ • "Chelah" :i:;i " Clirisliana " ...212, :>m •• "Cilv of Antwert .aipl •• rii^k '' JMie.l- ^'21 " " Cilv of Camliriilei! " .. •• " '•• Carlisle" ."iCid -Jll) Pckin" " " Cl.'irisse" 2:;.! ;,'ii ...M.V idl •■ "Clillnll" 1 VI " "C M. I'alnier • 22d I t * - r 918 Tlic taBlk op cases ■il ' (^onstilulinn " ■21!) T.'iS :i.i7 731 2 1 'i .Ml' 'I'lii' " tlnlia " 217. 330 ' (Jolo^iic ' " " Karii.ick " 188 " I)c I5,iv" "m; " Di'spal cli " '2tU, *' " Ijaiiiiuina " ■'i38 " Dukt^ Muni^f'stiM' "' " " Ijakc St (Hail' " "31 " l)iiin|ilii'ii's " .).),; *' \v,\\'\ ol' Au(;kliUnl " " Jjaiira " 3'il, ."i(i3, MV Klfrin" •■ ■■Lion" •• •■ I.-jrhlido" 7(13 ** ** SjH'Mcor '" '22S {■>Vi 'iG-,' XOi 218 ;i:i4 7:!U ;ui:) .5(il " Jv'sl Lolliian '' ■' " London ' 21. 'I, 3'i(l " I'ii-li'isi' arid S.ixonia " .. ■■ ■■ MaL'na Cliaria " ■>.).( "Kihv rds Hawkins"' " lj"\ pUan '" !••• ■■ ■' Malvina " " *' Mai'ia 221, 'I'lD /i:)8 "Eli/aliPlli" '■ Marpi'sia " .27."., 3'il '• ■' .li'iikiiis " •in, •■ ■• Min.i" •'I'i'l " I^^ast Lotliiaii '■ " M ini'haha * 7311 " lui'lfN'nour '" ■ • ■■Moliili'"' Ml 1 ■' I'jn'r^'ii' " ■'18 " I'liiL'land" h'7 " Krk" •2'2:i ■211 (il'2 :!(i,s '218 ■2 '2 8 n» ■2i:i .'i.V. r.r.9 ■' '■ Na\'i'S'itor " "18 " Kiirnpa " '• ■'Ni'pliuie" ■' '■NcwpDrl " ■' '■ Nioril " .331). ,".(1(1 " Kuxiiii'" " E\'an'^plino^ " 3(11 O.Vj " Falkland " " ■' Nor" ...,,; " F;\'" •' M. Cai'vill" " " Niord "' ','":', *' I'^fiiliani '' '■ ■■ Norma " ""H " l''i'rn't " " "Niii'lli Aninriraii " .21:., ...■)8, (133 (i().") " I'^orliino '" '■ " Oriciil " . .. . IP " Kranriska "' WM :i(i(; 'i.i!), " " Orii'nial " 1811 •■ ■■f)sti " .308, Vl'l ■• " l'ana;.diiiii liliowln' " .. ■' ' I'ana ina " Frct'i li)in ' * 180 " b'rit'niN '" , ... " ■• I'ci'rli'--; " . . .5(12 " I'^iisdliiM' " ... .r)."i!i Tll'i, 7:i'2, 7'i:) 7'i;i (i:) 7(11) 'i:.8 2:i:! 7:i7 7 1 .") 210 I8:i V(7 ■>.).i " (ialan" (il 1 ■' *■ Pi*'', ri' i^iipt'rioi'i' * .. . . .•■|ti7, .18(i. (1"8 " (Jalaus " '■ Prince (liMirirc " ol' Saxi' (lohom-L •' •■ FVini-i'ss Aliri' " " "' iiaii""t'r* " .... 337 " Gaunllclt " 183 " (Tt'?'.'mimo 332 " ( I i(niiin'i''nii'^liirt' ■)H •)■) ', *' (ili'irluror " " -' Itt'staui 1' inn " (107 " Gulden Lii/Jil •• ■■ U-sti'i'l ■ ■)•)*. " Gn^at Eastern * " '■ lUiondda " 232, ,5(1(1 '* " Pacilir. "' ■' ■• lih ,i|-do Sclailidl ' 127 " Grosham ' " ■■ Itona "111 - Hallev" " ■' Hovjia ' (111 " II.iuiImu'"' ' . IST, 4r,i 2(12 2:;i .,(;'. 7(i'i 7(i'( 'i7l 2(i:; 212 7:i."i 217 502 '2i:i 223 .'>.'i!) '■ " Salv.adiir " 'I'lll " llcl.'-Iif" '■ '■Saplio" 7'i 'i ■' •' Sm'.ici'iii " 'i70 '' IIi'WSllIls" ■' " Saiiiili :i " 'I'ld " Ilihi'r'.lia " .'::!i, r)n:i 501 " ■' Srhw.llilM'" 217, 330 5(12 *' Ilihoi Tiiari '■ ■' Scindi. ' 7 1(1 *' Hviii'ii.is ■' '■ "Sir Halpli .Vhorcrowliic; '' " Smyrna " 737 "Ma" "111 " Iniafxanda Sara Clasini *' Inca *" " '■ Spearman '" " "Stallordshiri'" 233 18/| *' rndoiionricnpf* " .•iin " " Strathnavi'i' " 7 'id " Idiia " " " 'I'dcLTilii" (107 ".laiui's* " ■■ 'rcntoiii 1 " 5(1 'i " .TuMi'^s (j Stovi''n'^on * .. •' ■Tlii'ti> 73') *' .Tf^mond " .. " ■''l'!ioma< Allen" 738 " .Jdiiko Andrii^ " 73!) " "'rriie IpIcik!" 730 '217, ;):io iss lie, 'lliS •::ii •2-'(i :!'il, .'i(i',> :i(;:!, 7(;:; ^(ii '-'I'l, ::'iii !"• ■•■i:i -iU. 'iV.I 'iJ.S ■>::}. ;!'ii w.t 7:ii) :.(ii 'ils 1^7 "iis :):ii). ')()(; liin -iZi tic, 'i-y.; 'VIH .111 ■• ■,'!:), (i:i:i ."iX, tm II! 1X0 :i()x, 'nil) llidwiir " i'r") INK all.; i" ■2;'--' ^ridi'i' " .'1(17, (i■^S iv<''' ixn. :(:(7 ilXf! Coboill':.' " ... ISii ioc" ; :i.r: tri III ■' 007 ti:, r.l-l, ."lOII iiiimI! " I;'7 -^'O (i:ri 'lie. 7'ri 170 'liO ' -217, :f:io, ."i0'2 7 10 horci'DwIiii- " 7:17 -2111 •2:!:i <■■• IX.'i •" 710 007 .")01 7:ii I'll " 7:!X • 7:!ii TAULK (IK C.VSE.S ill!) Till' " 'I'wo I'^lluiis" ."lOO 'I'mi^Mii' \. 'rmij-'iii' ,"),")7 UliUcr" '2-20 " " UmlrrwriliT" •2:)l " '• L'liidii ■' :iOli " " L'liili'ii Stall's" ■2-20 '• •' Velitsi|ii('z" ■2-2 1 " " Vi'lui'iiv" :>:,'.> " " Viviil''" -211 " " Wai'iir.-iii " ■2'21 " " Williiiiii Fi.'di.'rick ■■ ■2:t-2 " "Wiiiwii'li" 'il " " •' Liiiilsay ■ ."lOl " " Vurklown " ."iO:i " "Yoiifi" •2:i:i Tliclii'rt;!! V. Liiinlry x-2 Thoiiius, Milrlii'll v'. :i.".:i " v.Slii'rwucjil "201 'riiijiiilisoii V. Carlwrij.'^ht :I07 " , tloiiiiisjcL' \' 72'2 , Dili' Di'iii iJi'ijillicU v.... X->-2 v. Fiiiw -211 , Sln'lc V 711) Thnrliui'ii, liici' v 70'2 Thoi'iituri V. Mdhiii 710 " V. Slcwai-t 110 Tiinai'ulIarJxmrlJdanl, Shaw I'tal. 'M'.i Toiiiii V. .Miuissoii O.'iO " V. Stuwi'll 010 Tonkin, The fiinn'ral Strain Navi- L'alion CIdiiiiiaiiv y .'iriX Tiirraiii!!' \. Hank of I3ritisli Nurlli Auii'iica los Torn-, Oi still V :l-27, x:;7 Toiiraiij-'i'aii, Iti'naml v X70 Tdwiis V. Wi'iilWdrlli X-21 Tr.iil, Wil.-dii V .ixi Ti-ask v. .Maihldx 112, 7;i.") Ti'd't/ V. Caiii'lli .'ill Ti-i^r^'i' V. I,aval|i'i' «()7 i; Ti'hiilili' V. Hill :isl, 700 'iVdiiMiii V. Di'iil Tr issli'i' V. IJi'i'wur Trulniaii, Danii'i v " 's pali'iil, In re Tuck, Vivcrs v 'i'liiliiry V. Saiii.'lii'Z dd I'iiia Tul'iiul'li't al. v.(:unslalikn'tal..XI7, Tunstall, Killer v 17., 77."i, Tu|)iii'r, LahdUrhi'i'i,' V Turiiliiill V. Till.' (iwiii'i's dl' Ihd " Stralliiiaver'' Turner v. Barclay " V. (IdX Turiiey v. Walsh Tuniuanil, Elliutl \ Twidale's I'elilidii, III rr T\'leu, (Ireville \ .i.'ili, TJ Uliiludlali V. Mdoliehiinil fiO Unilerwddil V. Heiiiiiii;.'tdn xo'2 Union Hank dl' Australia. Irvine v. ■2.j7 " Stcaiiislii|iCd'y v. Owners of the " Aracdii " " American '' anil ;■ Syria " '2'20 Union Slraiuslii|i (;din|iany uf New Zi'alaiiil \ . Mi'llioiiriie llarlinur Trust (Idii'.iuissidiii'rs 2.'iO UnidU SI. ,Iaci|iies \'. i!.•li^|e L'niteil llaiiil-in-Ilaiiil ai:il Hank uf Hd|ie (;diii|i,iiiy, National Hank uf .Viislralasia v ,'i'.)0, Lire, Smith v Uniuharl v. Macjilier.sun I) '2I!J XOI Olio '2 IX ■21 1 X7I xoo XOI) 710 '2:i:) 71X 01 1 11-2 o:i7 X17 'iX'2 0'2X :,'.n ,'iXI ■V" Vali-ntine v Cleu^'h 212 Va!i«\. I.an}:ldis 01 Viiwi^r Heit Van lioyen \ 2X7 Van Hasselt v, Sack -"lOO " Itoaven \. Vaiider licit '2«7 Vaux v.'Shclfer '2I'2 Veiikalii Nai'asima \. Tin' timiits df Wards 0:i'2 Ventatasiiiara. Muliisawin 1'aj.M- \era Veliiipa Naiker \ 7.1 m. \ cinis. Kii'kner v \''M'nori, Simon \ \ la,^. I' Livera V Xiliort. Iieiii|ii'ii'ri' V \ iclunaii Muilway (Idiniiiissinners V. Coiiltas Vivers V. Tuck Voyer, Richer v ISl, :M-2, 3X0, Wailddx \. I'"ishrr Wadwdi'ih, .McMiillcn v :no, l.M Walker, Fhnt v OOX V, ,lones DOS Walia. , In re V. Kieldcn , McKellarv 17 V. McSweeni'^ :i.'?S 0X0 X-2 7 7.ix :!i)7 ■2 IX GIJO 1.15 1X0 78 p m, I* 9^0 TAULK OF CASES Wiilsli, 'runuM' V Oil Ward V. Mi'Coi'kill 7:!'.), S03 NV'iinl V. Natioii.il liiiuk ul' New Zoaliiii.l 71)0 AVanli'ii, Cdlciiiial liuiik v 'i\l Wanlli'V. It.'lhmi.' Ilil \Vaiilii.' \'. Wai'illL: .'iaii Washliuni, I'uuv'll v 11(1 "Wall, liallour v 1(17 \. Hraiiiaii 1(11 WalSDii, CoUiy v 71!'.) " .liiiiiii'iijov (!iiuii(l(j(j \ ()()() Wi'IiIj v. Ciililv.'..." -I'M Wc'lili v. Wri^ihl •:'.):> AVi'l)sli'i- V. I'owiT 1 17, 'im Wi'l.'li V. I'liiiiips s:!r) ^Vrlls, In re (i.):! Willis v. Clis (;. Cipp W'cuiys. Alldi'iii'v ('ii'ii''i'al III 111!' S'li'ails Si'tlleiiii'iils v 'I'.n W'lWllAVdl'lll, 'I'ciwiis \- IS'^I \. Iliunpliicy 7.Si) W'l'sl, (ianiiiaii V 'r2!) '• , (lorpiiratinii of Pai-kdak v. (1.S7 Wi'Sli'i'ii AsMii'aiico Cuiuiiaiiy, While V Vh, (137 Wu.sliTii (luiiiitii'S Railway (lom- ])any v. Windsor and Aiiiia- ]i()lis l{ail\va\' Cuiniiaiiy .'il.'i WcsUuealli V. Wcslim'alli 7i7 While V. Till' Wi'sli'iii Assurance Company 'I'l'i, ().'i7 Wliili', (lurporalion ol' Adelaide v.. G'2G . l^iondiin CluUtered Hank ol' Australia v I.'i7, l.")8 V. N'i'a\lou (18S Whillall A al., 'lieu.vke iV al -ll',' Wlllllield, //( /•(• id.S , Maeilonald v 17(1 , Savi'i'sv .'i'.I.S Whillle \. MaciaiiMiie aDi Wiikliani \. .Ni'W Hi'nnswiek anil (lanaila liail\va\ (;i)nipanv..;i'J.'i, 7IS Wildbure, Bishop V '. 1(J'2 Wilder V. Altornoy General ol' 'I'ri- iiiihid 7MI) Wilkinson v. Arniylane. \ ,S'i7, SNO V. Sinison I)!).-) " v. Wilson IS(1 Williams V. Ayers 171, 17.! " V. lUrnes Hi '• V, (Inlrh 'illl V. Sii'vens Ills , The (,)neen V ;il:i " , The Colonial Hunk of Australasia v '20.'), 3i.') Willie iV Co., (Jiovanni Dapuelo V .'1(17, ll-W Willems V. Ailminislralor (innial of British Cuiuea M)i (li;! Wilson V. Calleiiiler" 71) " V. (Umada Shipping: (lump's I'.U " >Val., Doe Dem.; . ^ , Devnie \ / ' " , Lewin V li'.lll " V. The (,)ueen ;iO!) V. Trail :!H1 , Wilkinson \ IS(i " V. Wilson Ill,") Windsor and Annapolis Hallway Company v. The guemi iV al.... (10(1 Windsor, Western tiounties Kail- way (lonipany v .")l,'i Winter v. Attorney Ceneral of Vie- toria '. '2SS Wolfe, Dines V :il-i Wood iV al, llillehiil^; \ .'!•')() , Kaitton V ."i:i'.), 7(iS V. Smith ."iIKi WooleoltV. Pej.'i-'ie ITi Woolloy V. Attorney Ceiier.il of Victoria 'i'.fl Wrif-'hl, Oriental Hank Corpuration V 7(1(1 Writ'lil, Wehii V -,".):) Xenos V. Aldersly. :iOS I Veap Cheali Neo v. Owj Clien^,' Xeo Kir, Yi^a V. Tatem I I I Vouiitr \'. IJaidi of Hen -.il '107 V. Lanihi.'rt 00',) Zeininilai' 111 CarviiinaL'arum.The I Zueasli v. Lanier, Madras ll;iilwav Co v (l.S!) Ilii:) 7.s'.» S'H, s.so irnoy General nl' 'I'l Siiiisiiii :i!l.") WilMiii \i