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Les diagrammas suivants illustrent la mdthoda. i errata id to It la pelure, pon A n ^ 3 32X 1 2 3 4 5 6 DIGESTED INDEX TO TRt REPORTED CASES IK LOUVER CA.NA.T>A., CONTAINED IN THE UEPORTS OF PTKE, STUART, REVUE DE LEGISLATION, LAW REPORTER, LOWER CANADA REPORTS, LOWER CANADA JURIST, STVART's vice-admiralty cases and CANADA APPEALS BROUGHT DOWN TO JANUARY, ISei, TO WUICII IS ADDED AN COMPRISINfi I'errault'i Pric^dents de la Fr6vo8t6 et du Conseil Snp^rieur, WITH TABLES OF REFERKNCE. NAMES OF CASES AND A CONCORDAxVCE, — ALSO — Numerous Notes, and References inchiding several important cases fwt yet reported, BY T. K. RAMSAT, Advocate. \ 4 ■I' <(i;ebi:c: PRINTED BY GEORGE E. DESBARATS, 1865. I ; y 3Tc.K>'^ K ^\^\. I ^ < . « I ! -: A ;' ;-i V'.-! iJ .ri'Ki I I TABLE OF CONTENTS. Preface, ------ --...y Table of Cases, --------- vii Abbreviations, ---------- xlix Index, ----- 1 Note of Judgments in Appeal, 1864, - - - - - 341 Appendix, ---------- 345 Table of Reference to Index, ------ 359 Table of Reference to Appendix, ----- 365 Concordance, 367 'I '\ ''' • ' i ^1 ■ > ■ ^4 .11 PREFACE. " I hold every man a ilebior to his pruiif-sion.'' — IJacon. Reporting is perhaps the most valuable portion ol legal literature ; but its usefulness for all ordinary purjwses becomes impaired, if the reports are not carefully indexed and arranged, from time to time, as their bulk increases. Five years ago our reported coses liaving swelled in the ten preceding years from five to twenty-onr volumes, I began to prepare an index for my own use. Since then I have added the contents of the later volumes, as they ap})eared, down to the end of 1863 ; and in part liquidation of the debt claimed by the great English Chancellor, I now offer the compilation thus made, to my brethren of the legal profession, in the hope that, amid.$t the toil of practice, it may relieve them from the necessity nf many u weary and often un- successful search. la publishing this Index, I am not blind to tht; inauy defects of its classification ; but afler having re-arranged it lour times in manu- script and twice in type, I feel persuaded that it is impossible, within the limits of one volume of a r vmable size and cost, so to dispose the matter as not to give ample rocii for easy criticism in this respect. However, I have endeavoured as far as possible to obviate any incon- venience which may arise from imporfeol classihcatiim by adding three tables — one of reference, a second of the names ol |)arties, and a third of the principle words of the Index wlierever they occur. The last table, so far as I know, is a novelty in works of this class, but I tliink it will be found the most useful of the three. I have also condensed and added in an appendix the cases de- . cided in the old Courts oi' PrevosU and Conscil Sxiperiea.r , reported in the two small volumes published in 1824-, by the late Mr. Perrault, one of the Clerks and Prothonotaries of the Court of Queen's Bench. The judgments in many of these cases will be found to contain very interesting and valuable precedents, and as such, not less binding now lii P <• phi ',' VI PREFACE. than they were under the old regime. Indeed it is to be regretted that, in determining the jurisprudence of the country, recourse had not been oftener had to the records of the older courts, and even now it may not be two late to enquire how our predecessors practised and administered the law. In England the Year Books have never been despised, and in France now studious men are beginning to per- ceive that wisdom is not of any one age, and that no people can with impunity ignore its history and its traditions. Are our olim luiworthy of a thought ? I need hardly say that the Index comprises the cases in Tyke'^ Reports, Stuart's Reports, Stuart's Vice-Admiralty Cases, La Revue de Legislation et de Jurisprudence, the Law Reix>rter, the Lower Canada Reports, and the Lower Canada Jurist. I have, however, omitted the Bankrupt cases, which had only interest under the o^iera- tion of the old Act, Some cases which are not reported are mentioned- in the Index, and I have also added a few notes, the last of whiciv gives the judgments in appeal which affect the cases referred to itk the Index, and which are reported in Vol. 8 oi' the L. C. Jurist, and Vol. H of the L. C. Reports. I I' ' i'- MoNTREAL, May, 1865. != I. I.' i i^ TABLE OF CASES. in ad Abbott et al.and Meiklelmm ct al., 168. Abbott V. Montreal and Bytown Rail- road Co., 206. Adam and Duhaniel, 264. Adams v. Fleming et al., 221. Adams v. Gravel 307. Adams v. Hunter and Evans, 86. Adams v. O'Connell, 107. Adams v. Peel et al., 177. Adams and School Commissioners for Municipality of Barnston, 2B7. Adams v. Sutherland, 288. Addams and Worden, 163. Addison and Bergeron et al.,227. Adhemar, Malo v., 280, 311. Adventure, The, 11, 166, 218, 235,284, 323. ^tna. Grant v., The, 1.59, 331. Agnes, The, 87, 102,116, 195,234,264, 326. Ahem, Rice et al. and, 150, 160. Aid, The, 112, 235. Ailsa, The, Alexander, The, 69. Ambault, Macfarlane and, 33. Aitken, The Montreal and, 169. Akwirente et a!,, Nianentsiasa and, 21, 94, 151,315. Alain, Bank of Upper Canada v., 48. Alain, Paradis v., 9, 282. Alexander, The — Ailsa, The, 69. Alexander v. McLachlan, 49. Allaire, Marois and, 25. Allaire, Prevost and, 285. Allan et al. Macdougall v., 58, 194. Allan, Torrance et al. v., 57, 344. Allard et al. Lesperance and, 123, 153, 206. Allard, Jannot v., 73. Allard, Trudelle v., 229. Allen v. Allen, 50. Allen, Gale v., 54 Allen v. Scaifu et al., 133. Allure, Exp., 62. Alleyn v. The Quebec, 154. Alio V. Alio, 17. AUsopp, Aylwin v., 105. Allsopp, Gallagher v., 315. o> Assurance 241. Amiot, Desharnais v., 56. Anderson, Bruce v., 42. Anderson et al. and Dessaulles et al 160. Anderson et al. and Genereux,42. Anderson, Jones and, 277. Anderson et al. and Lapens^e, 123. Anderson et al. v. The Mayor, &c., Montreal, 162. Anderson v. Turk, 88, 248. Anderson, Phillips v., 151. Anderson, Quebec Fire Company and, 25. Andres et al., Larocque et nl. v 249. Andrews v. Birch, 14, 239. Andrews and Robertson, 309. Augers, Carrier v., 145. Anne Johanne,The, 12, 324. Antrobus, Morris et al. v., 122. Arabian, The— The Alma, 325. Arcand and Montreal and New York Railroad Co., 169. Arcand, Perrault and, 282. Arcand, Wurtele v., 320. Archambault and Archambault, 30, 75, 231. Archambault and Busby, 215. Archambault, Exp., 62. Archambault, Filiatrault v., 104. Archambault, Johnston et al. v., 295. 343. Archambault v. Roy, 301. Archambault v. iSyndics Martigny estate, 107. Armstrong V. Ciochetiere, 161'. Armstrong, Laprise v., 316. Arnold V. Campbell, 207, 209. Arsenault, Lariviore v., 174. Arthur et al., Taylor v., 1 16. Arthur and Montreal Assurance Com- pany, 22. Arthur, Williams v., 288. Ash etal. v. Willet, 1»fi. Aspinall, Milts v., tO. Asselin v. Belirsin. 120. Asselin v. iMunjeuii, 241, 7, 220, 229. Atkins et al., Campbell nnd, 40. Atkin." v.\ n\.,(iuehvc Building Suciely v., 206. Atkins, Wliite v., 106. Atkinson, FurVies et nl. v., 207. Atkinst)!! V. Nosbitt, 36. Atkinson, Wilson nnd, l^l. Atlantic, The, 186. Atwatcr el al. v. Bouthillier, 91. Atwuter, O'Ncil and, 219. Attwell. Robertson et al. v., 271. 127+. Atwell V. The Western Assurance Co., ir>^. Aubert, Mngreen v., 292. Aubertftin, Birs v., ♦!. Aubin V. Lislois, 5. Auclaire v. Low, 126. Andet v. Hamel, 262. Andy, Logan v., 290, Ange V. Le Cure de la Pointa-auX' Trembles, 139. Auger, McClarvey v., 204. Auger V. Gingras, 7."). Auld V. Laurent, 278, 341. Anniiiis, Daonst v., 63. Aurora, The. 324. Austin. Scott et al v., 289. Ayer, Bowen v., 312. Aylen, Chapman et al. v., 215, 216. Aylmer (Lord), Harvey v., 137. Aylmer Mutual Steam Mill Cu., Ken- nedy v., 115. Aylwin, Cuvillier and, 25. Aylwin et al. and Gilloran, 277. Ayhvin v. Allsopp, 105. Aylwin v. .fudah, 6, 84, .^141. Aylwin v. McNally,279, [note 279.] Babin et ux. v. Caron, 238. Baby, Castle v.. 15. Baby, Major et al. v., 209. Bacquel, t'errault et al. v., 239. }}acquet, Rouleau v., 30, 231. Badeau v. Brant et ux., 247. Badenux, Whilnoy v., 232. Bag£^ et al. v. Wurtele, 35. B'ilp V. Nel)5(.n, 273. ]iailIarah\\\ lii V. Bit, more. 135, 279. 280, Baldwin v. (fibbtjn, (i4, 299. Bullantyne ct al. v. Worden, 77. Bull, Chamberlin and, 121. 2.50. Bull V. Lambe, 336. Ballard, Carroll v., .328. Bankier v. Wil.son et al., ■>8. Bank B. N. A. v. Cuvillier ei. al., U"). 164, 330. Bank B. N. A., McPhorson v., 114. Bank B. N. A. v. Taylor, 222, 232. Bank Mid. District, llertel do Rouville et al., and, 190. Bank ol' Montreal, Coult;s v., 48. Bank of Montreal and Glen et al., 41. Bunk of Montreal, Knapp etal. and,4+. Bank of Montreal v. Langlois, 247. Bank of Montreal, Nesbitl and, 100. Bunk of Montreal v. Simpson et a I., 318. Bank of Upper Canada v. Alain, 4H. Bank of Upper Canada v. Kirk, 56. Banque du Peuple, La, Oesjardins v., 9, 97, 342. Banque du Peuple v. Donegani. 124. 209,276,311. Banque du Peuple v. Gingras, 309. Banque du Peuple v. Gugy, 101, 125, 293. Banque du Peuple v. Hoy. III. Barbeau et al., Reg. v., 61. Barbouu v. (?rant, 238, 239. Barber ct ul. v. O'Hara, 137. Barbier v. Verner, 166, 176. Bartiour et al. v. Fairchild, 33, 34. Bardy v. Huot, 239. Bareille, Beaudry et al. v., 36. Barnard, Venner v., 208. Barney v. Harris, 53, 225, Barrett, Cuthbert v. 49. Barret, Lampson v., 275. Burrctte and Workman, 32. Barthe, McCarthy et al. v., 250. Ba tien, Charlebois v., 215. Bastien et al., Elliott v., 223. Bastien, School Commissioners of St. Michel v.. 4. Bates, Dinning v., 214, (note 215.) Bates V. Foley, 219. Batten v. Desbarats, 75, 213. Battle, Meude v., 230. Baudet, Derouselle v., 30fi. Baudon, Dumontier v., 254. Bazin et al., v. Crevier et al., 23, 62. Beacon, (iibb et al., nnd The, 25, 157. Beacon, Fire and Life Ass. Co. of London v. Whyddon,225. TABLE or CA8ES. Henubieii et. al.,Fabriqno dcSt.Ignucc v., 109,217. Heaubipii et iil., Durocher et al. v., 194. Beaubicn and Ilnsaun, 246. Beaucaire. v. Le|)nKo, 292. Beaucheniin, Bcruier v., 177. Bcaiulet, Dunn and, 316. Boaudet, Hall and, 74. Beaudet and Proctor, 21. Bcaudin, Perrns v., 134, 205. Boaudoiii V. Dalmasse, 241. Beaudoin, (Jravello v., 241, Beniulry el al., v. Bareille, 36. Benudry, Cockbiirn v., 296, 314. fieundry ami The Corporation of Moutreul, 12G. Beaudry, Davis and, 14, 274. Beniulry, Gironard v., 110. Beaudry v. Lafamme, 14, 232, 245. Beaudry and Pupin, 169, 200, 300. Beaudry v. Plinguot, 214, ^noto 215.) Beaudry and Proulx, 161, 319. Beaudry, Roy v., 78. Beaudry v. Smart et al., 201. Beaudry v. Thibodeau, 167. Beaudry v. Viiiet, 75. Beaufield et al., v. Wheeler, 230,274. Beaugie, Ducasse v., 78. de Beaiijeu, Bizaillon v., 164. de Beaujeu, Exp., 62. de Be^ujou, Filion et al. v., 3, 107, 108, 294, 308. de Beaujeu and Groulx, 301. de Beaujeu v. Masse, 153,21.^). de Beaujeu v. Rodrique, 37, 215. Beaulieu, Attorney General v., 40. Beaulieu v. Lee, 228. Beaupre v. Martel, 122. Beauregard, Senecal and, 127. Beattie, Campbell v., 258. Bechard, Cartier v., 73. Bichette, Petit v., 194. Beckett, Donald v., 288. Bedard, Bourassa and, 245, 335. Bedard and The Corporation of St. Charles Borrom6e, 21, 23. Bedard v. Dorion, 175. Bedard, Duchesnay et al. v., 140, 144. Bedard v. Dugal, 146. Bedard, Exp., 193. Bedard, Kennedy v., 291. Begin et al., v. Bell et al., 39. Begin, Couture v., 105. Belair v. Gaudreau et ux., 139. Belanger et al. v. Cyr, 185. Belanger v. Durocher, 98. Belanger, Exn., 62. Be anger, Fatard v., 245. Belanc^er, liauzon et al. v., 142. Belanger v. Levestjun, 177. Belanger v. The Mayor, &c., of Mont- real, 83. Belani;er and Mog6, 30,231. Belanger v. Munn, 290. Belanger and Ptntineau, 300. Belanger, Taillefer v., 185. Belinge, Cardinal and, 286. Beliveau, Beaiichemin v., 177. Belivenu, Berniev v., 177. Beliveau, Mleuii, v., 139. Rcliveau and .Tuneau, 254. lUdiveaii, Macfarlane v., 52, 57, 338. HeliWau v. The Mayor, Sec, of Mont- real, 93. Beliveau, Viger and, 13, 24, 172, 176. Bell el al., v. Begin et al., 39. Bell,BressIer v., 220. Bell v. Conlin, 277. Bell ct al. Dinning v., 104. Bell, Filmer et al. and, 304. Bell et al.v. Knowlton et al.,224,e88. Bell v. Leonard, 27. Bell V. Rigney et al., 236, 313. Bell, Sarony v., 17. Bell V. Wilson, 178. . Belle, Dawson and, 24, 127. Belleau, Asselin v., 120. Belleau v. Degourdelle, 161, 204. Belleau, Poliqiiin v., 141. Belleau and The Queen, 95, 171, 229- de Bellefeuille v. de Bellefeuillo, 109. Bellemare, Mullins and, 82. Bellemare, Thompson and, 82. Bellinghiim et al. and Freer, 306. B(Mlingham, McCord v., 110. Bender, Cherrier and, 13. Bender v. Jacobs, 291. Benjamin v. Brewster, 132. Benjamin, Charbonneau v., 191, 280. Benjamin et al. v. Clarke et al., 190. Benjamin et al. v. Duchesnay and vir., '241. Benjamin v. Gore, 111, 161. Benjamin, McCann v., 300. Benjamin, Morgan v., 294. Beniamin et al. v. Wilson, r)0, 54, 264. Benn, Astor v., 43. Benning, Monaglian v., 78. Benning v. Montreal Rubber Co., 209. Benninger et al. v. Gates, 128. Benoit et al., v. Marcile, 336. Benoit v. Peloquin, 215. !^ i ^ TABLE OF CASES. 1 1 il ■' ! :i Benoit v. Tanguny and Taiiguay and Bouthillier, 108. Benson et ah, Cochrane and, 252. Benson, Easton v., 223. Benson v. Ryan, 220. Bentley, Hilliei v., 14.6. Bergeron ct al. Addison v., 227. Bergeron et ti)., Chisholmc v., 234. Berlinguet and Drolet, 33. Bernard, Trustees Montreal Turnpike Roads and, 1.96. Bcrnesse dit Blondin v. Madoii, 134-. Bernier v. Beauchomin, 177. Bernier v. Beliveau, 177. Bernier and Langlois, 326. Bernier, Mailhot v., .')4'. Bernier, Marois v., 87. Bernier v. Vaolum el ul., 33. Berriau and McCorkill, 24. Berry, Chapnt and, 107. Berry v. Cowan, 136. Berry v. Dixon, ;>1. Berry and May, 22, 49, .'iO, f)."). Berthelet v. Gaiarneau, 104, 293. Berthelet and Guy et al., 32, 34, 123. Berthelet v. Mnir et al., 31. Berthelet and Turcotte, 73. Berthelot, Ross and, 170. Bertrand v. Dickinson, 69. Bertrand v. Gugy, 163. Bertrand, Lambert v., 46. Bertrand v. ISaindoux et al., 189. B6rube, Keg. v., 120. Bethune, Wardle and, 20, 344, Bezeau, Power v., 109. Bigelow, Keith v., 73. Bigge etal., Hill and, 137. Bignell v. Henderson, 107. Bilodeau, Harper v., 173. Bilodeau v. Le(ran<;()is, 6, 222, 312. Bilodeau v. iSylvain, 191. Binmoro et al.. Bahlwin v.. 135, 279, 280. Binmore et al., (iould et al. v., 16. Binet, Kxp., 185. Binet, (Jiroux v., 198. Binctte, Fillion vl al. v., 114. Birch, Andrews v., 14,23.9. Birks, Head v., 78. Biroleau v. Derouiii, 43, 247. Biroleau dit Lalleur v. Lebel, 271. Birs V. Aubertain, 41. Bishop of Quebec, Wurtele and, 22. i Bisset, Stevenson et al. v., 162, 248. ! Bisson et al. v. Michaud et al., 242. j Bissonnette and Bixton v., 89, 337. Boston, Stevenson ot al., v., 298. Boston and 'I'aylor, 37. Boston et ul. v. Tlionipson, 280. Boswell antl Denis, 267. Boswell ctal., .lamicson et al.and, 128. Boswell and Kilborn et al., 2.5, 92, 281, 289. Boswoli V. Lloyd, 30, 37. 178,227,231, 29r), 34.3. Boswell, VV'urtolo ot al. v., 3.'>. Botineau, Exp., 62. Botteroll, Les Dunies Religiouses Ursn- lines and, 214. Bi ttondey et al. v. Lunilcy, +8. Bouchard and Filais, 14r«>que v., 1+2. Boucher and Latour ot a I., 96. Boucher v. Lenioine, 20r>, 226. Boucher\ ille v. Th(^ (Jrand Trunk Railway Co., 9r>. 238. Boudreau et ai. v. D''Aniour, 36. Boudreau, Delesderniers and, 237, 338. Boudreau v. (7asetin, 230. Boudreau et al., Gauthier v., 318. Boudreau v. Lavendi-r, 221. Boudr«'au el al.,Iioran,i!:er and, 191', 313. Boudreau et al. v. Poulri, 206. Boutlrean v. Hieher, S;i,2Jl. Buudreiiii, Sonpras v., 206. Boudria el vir. v. Me Lean, 1S9. Boudrol V. Loek<^ et al„ 272. Boulanr-t v. Doiiire, 171, 278. Boulanget v. Mayor, &c., of Montreal, 32. Bourassa and Bedard, 24.'>, 33.'). Bournssa and Gariepy, 287. Bourassa v. ilaws, 272. Bourbeau, Exp., 72. Bourdacfes, Dupuis v., 123. Bourdajres, Exp., 304, 309. Bourdages, Paeaud v., 32. Bourdeau v. Oupiiis, 202. Bourji;eois, Duoondu v., 1). Bounfue, Diekiiison v., 133. Bour<]ue, linbaiilt and, 19. Bourrett et al., St. Arnaud v. Bouthillier, Atwater et al, v, 189. 91. Bouthillier, Lyman et al. v., 91. Bouthillier, Mutliitt et al. v., 91. ]{outliillier, Torrnnee and, 91. Bouthillier v. Tiireolte, 27, 71. 213. Houlillet, C»)rporati(>n ot" Verclu^rcs v., 197. Bouvierand Reeves, 24. Bowen v. Ayer, 312. Bowker v. Ch»n«l|er, 13. 116, 127,212. Bowker et al.. Rice v., 247. Bowker, Feiin v., 128, 129. Bowker and MeCorkill, 112,269, .3.38. Bowman, Styart et al. v., 8, 108, 110, 243,312. Boyd, Turner v., 215. Boyer dit Laderoute, Exp., 61. Buyer, Lefebvre et ux. v., 174. lioyer, liiua et al. v., 242. Boyer et al. v. Prienr et al., 281. Boyer v. Slown et al., 123. Bradbury et al., Hall v., 221. Bradbury el al., McLaughlin ct al. v., 143. Bradbury, Tolloek and, 71, 319. Bradford, I'Vaser v., 115. Bradford v. Henderson, 230. Bradley, Maijnir*; v., 279. Bradshaw, (^.llii„s v., 88, 245. Brant et iix., Iladeaii v., 247. Braidt. Metrisse et al. and, 22, 98, 174, 190, 191, 195. Brawders, McGinn and, 20, 105. FUeak«>y, KiM39,241. ,292. 37, 151, 276.) .,213. 269, 301, 147. i\ Trunk jsd'Ecole Camillus, The, |11, 27, 64, 138, 167, 234. Campagna v. Hebert, 180. Campbell and Aitkins et al., 40. Campbell, Arnold v., 207, 209. Campbell et al. v. Beattie, 258. Campbell et al. v. Ilitchison, 302. Campbell et al. v. Jones et al., 59. Campbell et al., Lovell v., 168, 169. Campbell and O'Donaghue, 135. Campbell v. Shepherd, ICO. Campbell, Vanghan v., 133. Camjieuu, Drapeau et al. v., 181. Canada Ass. Co. v. Freeman, 259. Canada Baptist Missionary So., Forsylh v., 311. Canada Lead Mine Co. v. Walker et al., 76,212. Canadian Inland Steam Navigation Co. V. RefFenslein, 253. Cannon v. Larue et al., 180. Cannon v. O'^eil, 7, 219. Canton, Exp., 257. Captain Ross. The, 186, 327. Garden et al., v. Finley etal., 102, 114, 125, 342. Cardinal and Belinge, 286. Cardinal, Meunier v., 114, 153. Carrignan and Montreal Harbour Com- missioners, 61, 81. Carmichael, Moss v., 115. Caron, Babin et ux., v., 238. Caron, Judge, 259. Caron, Leclere v., 122. Caron v. Michaud, 114. Caron, Gauvin v., 89. Carpentier, Exp., 273. Carpentier, Pag6 v., 224. Carrier v. Angers, 145. Carroll v. Ballard, 328. Carroll, Reg. v., 88. Carsant v. Perry, 2.52. Carson V. The Mavor Ace, of Montreal, 94. Carter, Bunker v., 283. Cartier v. Bechard, 73. Cartier et al., Holmes v., 146. Gary, Charlton v., 153. Cary V. Ryland, 190. Casavant and Leniieux, 143, 331. Casey, Earl et al. v., 175, 329. Casey and Goldsmid et al., 22, 157. Casey v. Villeneuve, 226. Casgrain, Garon and, 265. Casson v. Thompson, 150, Castle V. Baby, 15. Castle V. Wrigley, 339. Castonguay, Joseph v., 3, 343. Castongu^ v. Masson et al., 288. Cavenagh, Morkill v., 139. Caverhill et al., Henderson v., 59. Cay, .Toseph v., 204, 209. Cazelais and Ramsay, 143. Chabot, Dillon v., 203. Chabot. Exp., 43. 147, 256, 258. Chabot, Noel v., 227. Chubot et al. v. Scwell, 131. Chagnon, Exp., GI. Cluignon, Lafond ct al. v., 263. Chaill6 and Brunelle, 122. Clialifoiix, Filzback et al. v., 273. Chalifoux v. Thoin dit n.ich, 194. Chalmers v. The MiUual, 155. Chamard, Lyman et al. v., 225, 250. Chamberlain et al.. Foster et al. v., 111. Chamberlain, Lani^Iey v., 52. Chamberlin v. Hall, 121, 250. Champagne v. Boston, 298. Clmniplain and St. Lawrence Railroad, Richard v., 223. Chaniplain and St. Lawrence Railroad Co., Roy v., 28. Champlain and St. Lawrence Railroad Co. V. Russell, 293. Champlain and St. Lawrence Railroad Co., Tremblay v., 28. Chandler and The Attorney General, 162. Chandler, Bowker and, 13, 116, 127, 212. De Chantal et al. and De Chantal, 160. De Chantel v. Pominville, 160. Chapais v. Lebel, 144. Chapdelaine v. Morrison, 74. Chapdelaine, Poulre and, 20. Chapleau, Maill6 and, 19. Chapman et al. v. Aylen, 215, 216. Chapman v. Blennerhasset, 48, 53. Chapman v. Clark, 200, 209, 293; 310, 314. Chapman, Gamsby et al. and, 252. Chapman, Gosselin v., 21. I Chapman v. Masson, 13. 1 16, 127, 213. I Chapman v. Nimmo, 166. i Chapman, Torrance v., 84, 184, 230. Chaput V. Berry, 107. I Charbonneau v. Benjamin, 191, 280. Charbonneau, Exp., 72. Charest and Rompr^, 21. Charlebois v. Bastien, 215. Charlebois, Bnineau and, 310. i^ , I ' ^i^ H , t 111 ( i|ti; XIV TABLE OF CASES. ih i Hi, ' -P. ■ Charlebois v. Coulombe, 103. Charlebois, Genier v., 230. Charlebois and Headley, 18. Charlton v. Gary, 153. Charpentier, Piatt and, 305. Charron, Blanchet et itx. v., 299. Charron, Dub6 v., 334. Chasseur v. Hamel, 301. Chateauvert et al., Noad v., 88, 245. Chaumont, Grenier v., 145, 261. Chaurette, Dutnont et al. v., 125. Chaurette v. Rapin et al., 307. Chauvin, Lacoste v., 241. Chef V. Leonard et al., 96, 122. Chenevert, Senecal and, 105, 165,212. Cherrier v. Contlee et al., 18. Cherrier v. Bender, 13. Cherrier and Titus, 131. Cheval dit St. Jacques v. Morrin, 71. Chevalier, Lamothe and, 31, 131, 220. Chevaler et al., Ranger v., 220. Childs et al.,Edmonstoneet al. v., 119, 226. Childs, Howard et al. v., 4. Chinic, Bogle et al. and, 172,208. Chisholme, Bergeron et al.,234. Choall, Masson et al. v., 209, 310. Cholet V. Duplessis et al., 189, 246. Choquet, Jette and, 202 [note 203]. Choquet, McGinnis v., 3 18. Choquette v. Brodeur, 172, 208. Choquette et al., Donegani v., 331. Chouinard v. Demers, 260, 318. Chouinard, Gugy and, 181, 205. Chretien v. Roy, 32. Christin, Pepin v., 5. Cinq-Mars, Marchand v., 274. City Bank, Brook v., 118. City Bank v. Brown et al., 307. City Bank V. Coles, 118. City Bank, The, v. The Harbour Com- missioners of Montreal, 15. City Bank v. Hunter, 272, 274. City Bank v. Pemberton et al., 294. City Bank v. Saurin, 223. City of London, The, 77. Clairmont et al. v. Dickson, 129, 176. Clapham, Lloyd v., 9, 97, 204, 282. Clapham, Pozer v., 121. Clapin V. Nagle, 47, 103, 270. Clark V. Lomer, 178. Clark et al. v. Murphy et al., 321. Clarke et al., Benjamin et al. v., 190. Clarke, Brown v., 142, 243. Clarke, Chapman v., 200, 209, 293, 3 10, 314.. , . Clarke et al. v. Clarke et al., 77, lU, 151, 163,225,335. Clarke, Converse and, 103. Clarke, Idler v., 278. Clarke, Johnson v., 6, 252. Clarke and Johnston, 227. Clarke et al., Knowlton et al. v., 24. Clarke, Larocque v., 52. Clarke v. McGrath, 3, 168, 228. Clarke et al., Rainsford et al. v., 174. Clarke, Whitney v., 1 18. Clarke et al. v. Wilson, 131. Clarkson, Guy v., 132. Classon, Boston v., 140. Clegg, Brooks et al. v., 150, 251. Clement v. Geer, 102. Clement, Naud v., 8. Clement v. Page et al., 320. Cleroux et al. v. Lavoie et al., 110. Close v. Close, 176. Clouthierv. Clouthier, 132, 190. Cloutier, Talon v., 219. Clugston, Exp., 260. Coates and Bank of Montreal, 48. Cochran and Benson et al., 252. Cochrane, Leeming v., 50. Cochrane, Parker v., 134. Cockbiirn v. Keaudry, 296, 314. Cockburn v. Starnes, 296. Cockburn v. Tuttle, 296. Codere, Roy v., 122, 153. Coldstream, The, 27, 30, 95, 170, 192, 195, 325. Coles, City Bank v., 118. Colina, The, Mercier v., 12. Collins V. Bradshaw, 88, 245. Collette, Dansereau v., 265. Colman et al. v. Fairbairn, 129. Colville et al., Nye and, 117, 145, 264. Commissaires d'6cole d'Acton v. G. T. Railway Co., 32. Commissaires d'ecole de Ste. Philo- m6ne, Pelletier v., 288. Commissaires d'6cole de St. Patrice, 104. Commissioner of Indian Lands v. Payant, 151. Commissioner of Public Works, Young et al. v., 29. Compain et al.. Shearer v., 189, 247. Comstock v. Lesieur, 288. Comte v. La Fabrique de St. Edouard, 127. Comte et al., The Queen and, 144, 145, 146. ■ . . :; Conlin, Bell v., 277. '». TABLE OF CASES. XV Connoissant et al., Lauzon v., 18. Constable et al. v. Gilbert et al., 276, 311. Converse and Clarke, 103. Coo, Rice v., 27. Cook et al., Varin v., 79. Cook, Weymess et al. and, 45. Cooper V. Downes, 139. Cooper v.McDougall, 194. Cooper, Shaw et al. v., 258. Copartt et al. v. McMaster, 90. Copps and Copps, 227. Corbeille, Masson et al. v., 320, Corbet, Frechette v., 99. Cornell v. Merrill, 50. Cormack, Buchanan et al. v., 239, 241. Corporation de Chambly v. Loupret, ^ 6 Corporation du comte d'Yamaska and Rheaiime, 197. Corporation of Levis, Grand Trunk and, 197. Corporation du Petit Seminaire de Ste. Th6r6se, Laurie v., 84. Corporation of Point Claire, Leclerc v., 197.. Corporation of Point Claire and Valois et al., 203. Corporation of Portuguese Jews v. David et al., 292. Corporation of ShefFord, Reg. v., 198. Corporation of Col. of Ste. Anne v. Taschereau, 239. Corporation of St. Charles Borrom6e, Bedard and The, 21,23. Corporation of St. Ephrem d' Upton, McDougall and, 31, 219. Corporation of St. Jerusalem v. Quinn, 83. Corporation of St. Philippe, Exp., 276. Corporation of St. Philippe and Lussier, 24. Corporation of Ste. Rose v. Leprohon, 48. Corporation of St. Roch, Langlois v., 197, 266. Corporation of Terrebonne, Valin v., ^63, 293. Corporation of Verch^res v. Boutillet, 197. Corriveau, Exp., 137. Corriveau v. Pouliot, 172. Corse et al. v. Corse, 17, Corse v. Taylor, 208. C6t6, Danais and, 194. Cdt6, Gault et al. v,, 229. ' C6t6, Hamel et al. v., 51, 55, Cdte, Lemieux v,, and Cdte, 41, 246, 252. Cdt6, Martin v., 314. C6t6 et al. and Morrison, 133,240, 335, Coterell v. Gormley et al., 75. Couillard v. Lemieux, 304, 337. Coulombe, Charlebois v., 103. Coulon et al., Exp., 12. Counter and McPherson etal., 76, Courcelle v. Longpr6, 31. Courville v. Levar, 216 Courtney et al., Uandyside et al. v., 249. Courtney, Seed v., 248. Cousine, Exp., 82. Cousineau, Mitchell and, 330. Coutlee et al., Cherrier v., 18. Coutlee, Rose v., 24, 32, 121, 208. Couture v. Begin, 105. Couture, Falardeau v., 94. Couvrette, Delisle v., 206. Cowan, Berry v., 136. Cowan, Brodie et al. v., 126, 134. Cowan, Darling v., 49, 223. Cowan, Meriz/i and, 268. Cowan v. Turgeon, 2 5. Cox, Mackie v., 54. Coxworthy et al., Jackson et al. v,, 165. Craig, Whitney v., 244, 307. Crapser, Leclaire v., 154, 156. Crathern et al. v. Les Scuurs de St. Joseph de l'H6tel-Dieu, 176, Crawford, Denis v., 125, 178, 269. Crawford v. Fy.son, 55. Crawford, Larue v., 72, Creamer, R. v., 13, 88. Crebassa, Massue v., 121, 122,208,250. Crebassa etal. v. Peloquin, 339. Creole, The, 64, 218. Crescent, The, 66, 302. Crevier et al., Bazin et al. v., 23, 62. Crevier et al., Gagnier v., 220, 225. Crevier et al., Leroux et al. v., 106, Crevier, Lavoie v., 35, 240. Crevier et al., Normand and, 145. Crevier v. Sauriole, 241. Crocheti^re, Armstrong v., 164. Croteau, Attorney General v., 40. Croteau v. Quintal, 295. Crump V. Middlemiss, 194. Cullin, McBean v., 216. CuUen, Osgood and, 24. Cumberland, The, 32, 64, 65, 210, 218, 235, 270, 325. a I V •^ I ' 1*1 f? I I XVI TABLE OF CASES. Gumming v. Dickey and The School Commissioners, 128. Gumming, Exp., 60. Gumming et al. v. Mann, 281, 313. Gummings et al. v. Smith et al., 10, 33,. 34. Gumming v. Taylor, 4, 5. Gumming and Quintal, 283. Gunninghum, Daly et al. v., 29. Cunningham et al. v. Ferrie et al., 223. Cunningham, Leverson et al. v., 135, 204, 209, 272, 288, 296, 298. Cure de La Poinle aux Trembles, Aug6 v., 139. Gur6 et Fabrique de St. Ignace v. Beaubien, 109. Cusack, Fitzpatrick v., and The G. T. R., 59. Cusack V. The Mutual, 158, 186. Cusack et al. v. Palon, 122. Cushing V. Davies, 162, 342. Cuthbert v. Barrett, 49. Cuthbert v. Culhbert, 109, 211. Cuthbert v. McKinstry, 181. Cuthbert V. Tellier, 312. Cutler, Gillin and, 247. Cuvillier and Ayiwin, 25. Guvillier et al., Buteau, 36. Cuvillier et al.. Bank of B. North America v., 115, 164, 330. Guvillier, .loseph v., 39. Cuvillier et al. v. Munro, 193. Cuvillier et al., Bull v., 251. Cuvillier et al. v. Buteau, 36. Cyr, Belanger et al. v., 185. Dtedalus, White v., 160, 301, 319, Dagenais, Exp., 62. Dagenais, Gauthier v., 107, 160. Dahlia, The, 65, 66, 116, 180, 315. Daigle, Exp., 40. Dallimore, Exp., 332. Dalmasse, Beaudoin v., 241. Dalpe V. Brodeur et ux., 106, 121. Dalp6 V. Pelletier, 245. Dalph6 V. Rochon, 93. Dalrymple, Rassette v., 207. Dal ton, Exp., 80. Dalton V. Sanders, 265. Daly et al. v. Cunningham, 29. Daly, Morin v., 144, 205. Daly, Morrin v., 86, 146. Daly, Ross v., 142. Daly, White v., 2.55, D' Amour, Boudjreau et al. v., 36. Damour et al. v. Guingue, 127. Dames Religieusos de Quebec v. Perry, 227. Dames Religieuses Ursulines and Bot- terell, 214. Danais and C6t6, 194. Danis, Robert v., 102, 180. Dansereau v. Gollette, 265. Dansereau and Maxham, 165. Dansereau et al. v. Priv6, 45. Dansereau, Whitney v., 79, 93. Daoust V. Aumais, 63. Daoust V. Descham{)s, 85. Daoust, Lantier and, 128. Darah, Rowell v., 63. Daiche et al. v. Dubuc, 84. Darche, Gaulhier et al. v., 4. Darling v. Cowan, 49, 223. Darling, McElwee v., 3, Darling, The Sol. Genl. v. Two Gaskj of Planes and, 220. Darling, Stirling et al. v., 208, 297. Darvault v. Fournier, 3. Dastous V. Hutton, (note 136.) Date, Ilearle and, 114,129. David et al., Gor})oration of Portuguese Jews v., 292. David v. Girard et al., 9. David and Hart, 42. David, Harris v., 6. David v. Hays, 144, 238, 247. David, Morson v., 319. David, Ramsay v., 38. David V. McDonald et al., 116, 342, 343. David and Thomas, 277. Davidson, Paterson v., 59. Davies, Cushing v., 162, 342. Davies, Exp., 61. Davis and Beaudry, 14, 274. Davis v. Maguire, 202. Dawson and Belle, 24, 127. Dawson, Exp., 21)3. Dawson, Quebec and Richmond Rail- road Co. v., 228. Day, Glackemeyer v., 218. Day and Sculthorpe, 251. Dean and Jackson, 234. Dease, Mackintosh et al. v., 309. Dease and Taylor, 22. Debartzch, McBean v., 73, 124. * Decelle, Muir and, 287. Dech6ne v. Faucher et al., 293. Decourtnay, Vannevar et al. v., 40.^ Defoy v. Hart, 218. Defoy, Swanson v., 175. Degourdelle, Belleau v., 161, 204. Delagorgendidre, Taschereau v., 40* 7. Perry, ind Bot- \. wo Cask--) 3, 297. ortuguese ,342,343. lOud Rail- 309. 24.. ' 93. v., 40. ,204. u v., 40* TABLE OF CA«ES. XVII Helard v. Pure ct ux., 139,243. Delerv and Ltmieux, 219. Delc-r'y v. Qiiig, 131. Delcsdoniiers and Buiidreau, 237, 338. Deli'sdcrnit'rs, Halcro and, 219, 228. Dclesdorniers v. Kingslcy, 14f>. Delesdorniers, Mjicfurlane v., 33>>. Dplesdcrniers, Pnvost v., 103,270. Dolislf V. Convrettc, 20(). l)«Misle V. DeliUe, 204. Peliisle et a!., Joseph v., 249. Dclisic et al., Kershaw v«^ 125. DolisU^ et al., Lalouette dit Lehenu and, 213. Delisle v. McDonald, 2f)l. Delisle, Maefurlane v., S.*), 309. Oclisle V. MfGinnis, 240. Delislo V. Uicliard, 107. Delisle, Simpson ot al. v., 318. Duiisle, St. John v., 35, 230. Ueloge, Lane et al. v., 150. Delta, 'J'he, 37. Delvcchio v. Joseph, 4. Delvecchio, Leblanc and, 129. Demtrs, Chouinard v., 260, 318. Demcrs, l"]xp., 62. Deniers, Foisy v., 7. Deniors, Homier v., 70. Deniers, Lcfebvre v., 3. Demers, McKay v., 310. Demers and Parant et al., 112, 332. Demers, Pemberton et al. v., 117. Demers, Picault v., 10, 242. Dendurand et ux. v. Pinsonnaidt, 94. Deneau v. Frotliiughani, 334. Denis, JJoswell and, 267. J)enis V. Crawford, 125, 178, 269. Denis v. St. Ililaire, 86. Denison, Piichard and, 77. Derome v. Lafond, 86. Derouin, Biroleau v., 43, 247. Derou«sclle v. Baudot, 306. Dt lousselle. Pare and, 314. besallicr and (ligueres, 175. Desautels v. Perrault, 205. Desbarats, Batten v., 75, 213. Desbarats and La Fabrique de Qii6ltpc, 181. Desbarats v, Lagrange and Fisher, 233. Desbarats v. La Terriere, 105. Desbarats, .Mallett and, 209. Desbarats v. IMurray, 70. I>eschamp8, Daoust v., 85. Des6ve, Perrault v., .50. Deseve, Thurber v., 248. Destbrges and Diifaux et al., 171, 202. Desharuais v. Amiol, 56. Desjardins v. La Bnnqne da Peuple, 9, ■ 97, 342. Desjardins, Briniet v., 104, 239. Desjardins v. Dubois, 279. Desjardins, Tarr et al. v., 325. Deslongchamp et a I. v. Payette, 175. Desniarleauct al., Massonot al. v., 332. Dosparf)is, Exji., 72. Desriviiires, Rasco v., 292. Desrivieros v Richardson, 8-\ 182. Desnvic^-es, The lloyal Institution v., 7, 82, 100, 182. 225, 237, 333. Dessaidk'setal., Anderson et al. v., 160. DcssauUcs, Duvernay and, 124. Dessein v. Ross, 1 17. Devlin, !']x|i., 43. Devlin v. 'J'lunlxdty, 14. Devoyau and Watson etal.,45,242,335. Dt war V. Orr and Fisher, 3. Dcwilt and linrrouglis, 256. Dickerson v. Fletcher, 315. Dickey, Cumniing v., 128. Dickey and Terriault, 330. Dickinson, Berlrand v., 69. Dickinson v. Bounjue, 133. Dickson, Bryson and, 42. Dickson, Chairmont et al. v., 129, 176. Diiianard, Little and, 190, 3 IS. Dill V. The Quebec, 155,200. Dillon V. Chabot, 203. Dinning v. Bates, 214, (note 215.) Dinning v. Bell et al., 104. Dinning, Douglas and, 257. Dinning and Jcliery, 136. Dinning et al., Whitney v., 27. Dion V. Morris, 197. Dionne v. Methot, 181. Dionne v. Soucy, 141. Dixon, Berry v., 51. Doherty, Reg. v., 182. Doherty, de Repentigny v., 164. Dolmasse, Beaudoin v., 241. Donaghue, Exp., 79. Donaghue, Giigy and 78, 221,337. Donais, Huot and, 1 10. Donald v. Beckett, 288. Donally v. Nagle and McDonald, 136. Donegani, Banque du Peuple v., 124, 209, 276. Donegani v. Choquette et al., 331. Donegani v. Donegani, 17, 24^ Donegani et al., Lalleur v., 261. Donegani, Lemoine v., 208. Donegani, Quesnel v., 111. Donegani and Quesnel, 23. ; ;N ^' til ■i t 1. \ Ay XVIII TABLE OF CASES. \\l ii f;^! Donnelly, Joseph v., 206. Donnelly, Leli^vre v., 51. j Donnelly, Talbot v., 49. i Donovan, Murphy v., 146. | Dooley v. Wiijrdley et al., 3. < Doriou, Bi^dard v., I7fi. Dorion et al., Fostel et nl. v., .^2. Dorion niiJ Laurent, 149. Doricu, Morlaiid v., 318. Doriuu et al.. Rivet et al. 148, 295. Dorion et al., Robert et nl. v., 100, (note 100.) Dorval V. L'Esiu'raiice, 'J96. Dor will V. I'lvaiis et al., 249. Dorwin, Hunter v., 89. Dorwiii !iu(l lliitcliius, 98. Dorwin v. NN'aidDrf, 1:)8. DougMJl, Roiilli v., 84. Douglass and Dinning, 257. Dougliis V. Dnpre, '2i^6. Douglas, Hall v., 133. Douglas V. Tlu' Mayor, iVc., of Mon- treal, UiO. Douglas et al.. Moss and, 1"29. Douiilas el 111., Mclveiizie et al. v.. 233, '27(i. Doughiss V. Parent, 279. Douglas. Warren v., 136. Doiilie. Boulaiigot v., 171, 278. Doutre aud Klvidge, 11. Doutre v. (iosscliii. 103. Doutre v. Careen, 40, 70. ' Doutre v. Montreal and iiytown Rail- way Co., 2v!4. Doutre v. Mcdinnis, 51. Doutney v. Mullin. 103. Dow V. Browne, 229, 250. Dow et al., sterling v., 288. Dowues, Cooper v., 139. Doyle, Exp., 62. Doyle et al. and MeLeau, 209. Doyle et al., Trust and Loan Co. v., 133, 222. Drapean et al. v. Canipeau, 181. Drapeau et al. v. Go.sselin, 181. Draper, Macfarlane et al. v., 124. Drayeott, Fisher v , and Scott, 35, 39. Dresser et al., Sternberg et al. v., 311. Drolet, Berlinguet and, 33. Drolet v. The Mayor, &c., of Montreal, 94. Drolet, Pentland et al., 21. Drummond et al., Hempstead and, 251. Dube et iix. v. Charron dit Duchanne, 334. Dub6, Pacaud v., 233, 282. Dub^, PinsonnauU and, 282. Dub^v. Proulx,224. Dubeau and Dubeau, 277. Dubois, Desjardins v., 279. Dubois V. Dubois, 233. Dubois V. Gauthier, 200. Dubois and Hall, 98. Dubois v. Hebert, 214. Dubois, .Todoin v., 47. Dubois and Lamothe et al., 171. Dubois and Ryan, 164. Dubord v. Getniain, 224. Dubord, Larue et al. v., 290. Dubord, McDougall v., 164. Dubuc, Darche et al, v., 84. Dubuc, Moil jean v., .307, .344. Diibue, Owens v., 30, 231, 338. Duca.sse et al v. Reaugil et al.,78. Dueh«>ne et MX.,Roehon et ux. v., 106. Duchesnay et al. v. Bedard, 140, 144. Duchesnay et vir., Benjamin et al. v., 241. Duchesnay v. (Jiard, 125. Duchesnay, Gugy v., 74. Duclos V. Dupont, 100. Dncondu v. Bourgeois, 5. DuCtiurtenay, V'aiinevar et al. v., 40. Duliiux et al'., Desforges and, 171, 202. Duiresne v. Guevremont, 43. Duliesne et al., Jodoin v., 189. Dufresne, Montreal Mutuil Assurance Co. v., 156,245. Dugal, B6dard v., 146. Dugal, Roniain v., 232. Duhamel, Adam and, 264. Duniaine v. Guillemot, 49. Dumas, Mountain v., 228. Dumas v. Viau, 31. Dumfriesshire, The, 38, 134, 2.53. Dunioii, Nadeau and, 142. Duuiont et al. v. Chaurette, 125, Dumont v. Dumont, 4. Dumont v. Gourt, 53. ^ Dumontier v. Baudon, 254. Dumoueliel, Exp., 80. Dumouchel, Larocque v., 59. Dumouchelle, Exp., 150. Duncan, Rivers v., 99, 169. Duncan and Wilson, 140, 141. Dunkerley v. McCarthy, 333. Dunlop, .Toutras v., 49, .54. Dunn and Beaudet, 316. Dunn, Ellison v., 268. Dunn, Katham and, 244. Dunn, McDonald v., 293. Dunn, Mount and, 248. TABLE OF CASES. an issurance Chtplessis et al., Cholet v., C46. Dtipont, Diiclos v., 100. Dupr6, Duglas v., 256. Dupr6, Mog6 v., 143. Dupr6 et al., Thibeault v., H?. Diipuis V. Bourdages, 123. Dupuis, Boiirtlenux v., 202. Dupuis V. Dupuis, 4-, 226, 294. Dupuis, Lamirande et al. v., 3. Dupuis, Trepauier v., 7, 8. Dupuy V. Surprenant et al., 3. Duraml v. Ourand, 107. Durnfbnl, Reynolds and, 82. Durochor ct al. v. Boaubien et al., 194. D.iroclier, Belunger v., 98. Durocher v. Meunier, 93, 139, 168. Duval, Gaiisli v., 46, 177. Duvernay and Dessaules, 124. Dyde, llenshaw v., 204. Dyde ot al., ( Jilmour et ol. v., 1.59. Dyke et al., More et al. v., 99, 279. Earl et al. v. Casey, 175, 329. Karly v. Moon, 79. Eastern Townsliips Bunkv.Tlie Grand Trunk, 207. Easton v. Benson, 223. Kastou V. Easton, 106. Eaton, (iilchen and, 259. Eaton, Stuart v., 138, loO. Edmonstonc et al. v. Childs ct al., 119, 00 « Edmonston, et al., Harris v., 57. Edmonstun, H. M. Principal Secretary of State fur War Department v., 169. Edmonstone et al., Samuel v., 44. Edson,Wyman and, 185. Egan, Smith v., 25. Egert et al. v. Laidlaw, .53. Eisenhart, Exp., 268. Eisinhartv. McGuillan, 202. Electric, The, 235, 243, 252. 284, 285. Elizabeth, The— Niagara, The, 67, 68, 69. Ellersley, The, 329. Ellice,Sarault and, 227. Elliot V. Macdonald and Ryan, 156. Elliot et al. and Ryan et al., 157. ' Elliott V. Bastien et al., 223. Elliott, Foley and, 92. Elliott and Howard, 126. Ellis, Withall v., 149. Ellison V. Dunn, 268. Elvidge, Doutre v., 11. Elwes V. Francisco, 54, 166. Elwin V. Royston, 236. Emerick, Hislop v., 289, 318. Emerick v. Paterson, 159. Enness, Henderson v., 44, 53,269. Ensor and Orkney, 148. Equitable, The, and Quinn, 159, Equitable, The, Racine v., 154. Ermatinger v. Giigy, 6. Esty, Judd and, 106, 124, 207. : Evans and Boomer, 87. 1 Evans et al., Dorwin v., 249. I Evans and Nicholls et al,, 133. I Evans, The People's Bdg. So. v., 211. Evans, Sinis et al. v., 142. Evans v. Smith, 211. 1 r brique de St. Ignace v. Beaubien et I al., 109. Fiil)ri(]ue de Chaleauguay, Reid and, i 217. . Fabrique de La Pointe aux Trembles, Queen and, 184-. I Fabrique de (Ju6bec, Desbarats v., 181. ' Fabrique de Quebec, Richard and, 217. Fabrique de St. Athanase, V'incelette v., 184. Fabri(|ue do St; Kdouard, Comte v., 127. Fabrique de St. Ignare v. Beaubien etal., 217. Fabrique do St. .Tean, llebert v., 84. Fabrique de St. Pascal, Larue et al. v., 109, 217. Fabri(|ue de A'audreuil v. Pagnuelo, 338 Factor, The, 326. Fafard v. Belanger, 245. Fahey et al. and Jackson etal., Ill, 113, 161. Failcs and The Mayor, kc, of Quebec, 332. Fairbaivn, Colman et al. v., 129. Fairchild, Barbour et al. v., 33, 34. Fairchilils et al., Tetu et al. v. 280. Falardeau v. Couture, 94. Falardeau, Tessier v., 148. Falkner et al., Molson's Bank v., 30, 231. Falkner, Vanier v., 1 15. Fallon, Syndics de Lachine v., 268. Faneuf, Regina v., 31. Faribault and St. Louis et aL, 263. Farnan V. Joyal, 215. (Note 215.) Farquhar, Plamondon v., 218. Farrell, Herbert and, 240. Faucher et al., D^chfine v., 293. '.1 n i I .y^ ' ■) -.1. ■'! /o IX TABLE OF CASE8. Fauteux aiul Buston, 150. Fawcett, Tlie Greut Western Railway Co. v., 94. Faweett et al. und Thuin|i.son et ul., 168, l{H)/236, 282. Fobruyer v. I'oiricr, 276. Fenn v. Bowkor, 129. Fenncll, Ihihcrt iiiul, 190. Ferguson v. (iilniour, 85, 1 19,2+2,800, 321. Fergiisson, (;n|>v luid, 22, S+, 227,214. Ferguson, Mills unil ul. v., 276, 280. Ferguson v. rulton, 168. Ferguson ct al. v. .Scott, 182. Ferguson, Sinclnii v., 96, 276, 280. Fergusson, lloljcrtson et al. v.. 279. Ferns, Wulkir vt ul and, 103, 233. Ferrie and Tlie Wajchfus of the Hctusi' ofliidustiy, S3, 245. Ferrie otul., Ciimiiiigliiini el al. v., 223. Ferrie and Thouii)son, 221. Ferrier, IVuter v., 224. Field, Russell el al. v., 180, 228. Filiatrault v. Aic-luimbault, 104. Filiatrault v. The (Jmnd Trunk Kail- way Coniimiiv, 96, 239. Filiau, Kxii., 6KS>). Filion et al. v. de Beaujeu, 3, 107, 108, 294, 308. Fillion et al. v. Binettc, 114. Filmcr etal. and Bell, 304. Filteau, Jackson v.. 344. Finley et al., and Cardcn el al., 102, 114, 125, 3^2. Fisher v. Draycolt and Scott, 35, 39. Fisher, Exp., 135, Fisher et al. v. Fisher et al,, 334. Fisher v. .lameson, 108. Fisher, Orr and, 262. Fisher v. Provencher et al., 19. Fisher, Russell and, 13, 180, 212. Fisher, Smith v., 262. Fisher v. Vachon, 176. Fitzback et al., Brochu v., 312. Fitzback et al. Brother v., 6. Fitzback et al., v. Chalifoux, 273. Fitzgerald, Meath et al. v., 133. Fitzpatrick v. Cusack and The C4rand Trunk Railway, 59. Fitzsiramons, Byrne et al. v., 269, 301, 337. Fitzaimmons, Hayden v., 95. Fleck V. Starnes et al., 121. Fleming et al., Adams v., 221. Fleming v. Fleming, 276. Fleming v. Seminaiy of M. Forsyth v. Morin et al., 103, 270. Forsylh et al. v. Williams et ul., 173. Fortier, Leduc v., 292. Fortier v. Mercier, 216. Fortier, Rhoaume and, 23. Fortin, St. Aubin v., 203. Fortin, Garneau v., 86, 142. Fosbroko, Bruneau v., 122. Foster et al. v. Dorion et al., 52. Foster et al, v. Chamberlain etal., 111. Founiier, Darvault v., 3. Fournier et al., Mercille v., 189. Fournier v. Oliva, 295. Fournier, Ouellet v., 281. Fournier v. Quebec Fire Ass. Co., 86, 216. Fournier, Patton vs. 290. Fournier and Russell, 124, 133, 189, 205, 206, 209. Fourquin et al., Grenier et al. v., 165. Fowler and Meikleham, 135. Fowler v. Stirling, 44. Fradet v. Labrecque, 46. Francisco, Elwes v., 54, 166. Franklin Co. Bank, Larocque et al. and, 83,251. Fraser v. Bradford, 115. Eraser et al., v. Bntean,264>, (note 264.) Fraser et al., Hamilton et al. v., 12,293. i| TABLE OF CASE6. m Fraser, Jackson v., 113, 2S1. Fraser, Kelly v., 119,232. Fraser v. Loiselle, ^S, 122. Fruser, McDoimll v., 98,281. Fraser et al. v. Puiilin, 144. Fraser et al., Roche v., 330. Fraser, Kochou v., 336. Frechette v. Corlu't, 99. Frechette v. Frechette, 306. Frechette v. Ciosselin, 179. Frechette v. St. Laurent, 137. Freer, BcUinghani et al. and, 306. Freer, Pelletier et al. v., 54. Freligh v. Seymour, 124, 173, 334. Freeman, Canada Ass. Co. v., 259. Friends, Th.>, 11,30, 37, 95, 98, 138, ]()6, 214,234,323. Frothingham et al. v. The Brockville and Ottawa Railway Co., 1, 293, Frothingham, Deneau v., 334. Frothingham v. (Gilbert, 222. Frothingham et al., St. Lawrence and Ottawa Railroad Co. v., 220, 225. Fry and The Richelieu Co., 117, 331. Fuchs V. Talhot, 189. Fuller and .Tones, 312. Futvoyc et al., Venner v., 249. Fyson, Crawford v., 55. Fyson, Warner v., 55. Fyson, Merrift v., 55. G V. L , 13. (iadbois V. Bonnier, 14. Uagne v. Bonneau,238. Gagnier v. Crevier et al., 220, 225. Gagnon and lludon, 9, 43. Gagnon, .Foly v., 194, 267. (Gagnon, Lavoie v., 300, .301. Gagnon, Roy and, 173. Gagnon v. Rousseau, 273, 276. Gtignon, Supervisor of Cullers v., 88. Gagnon v. Woolley, 289. Gaherty v. Torrance et al., 57, 92. Galarneau, Berthclet v., 104, 293. Galarneau et al. v. Robitaille, 231. Gale V. Allen, 54. Gale et al. v. Brown, 49, Gale, Browning v., 195. Gale V. (iriffin, 140. Gallagher v. Allsopp, 315. Gamble, Exp., 260. (Gamble, McDonald v., 223. Gamsby and Chapman, 2.52. Garceau, Lamothe and, 41, 207, 268, 294. Gardner v. McDonald, 125. Gareau, Mc Martin v., 173. ; Gariepy, Bourassa and, 287. Giirish V. Duval, 46, 177. Garut'au v. Fortin, 86, 142. ! Garneau v. Garneau, 16. (Jaron and Casgraiii,265. ' Giiron, Langevin ami, 133. Garrett, Legett and, 134. Garth, \Vooigu(^ros, De.s)illi(;r and, 175. Gilbert ct al., Constable et al. v., 276, 311. I Gilbert, Frutbingiitiin Gilcben and Eaton, 259 Gildersleevc, Kerr v., 261. (Jillespio ct al. v. (iray, 233. (jjllcspie ct al., Iluohinson v., 96, 126. i (rillespio V. Porcoval, 90. Gillespie ot al. v. Sprngg et al,, 38, 19.'), 2()3. Gilliu and Cutler, 247. Gilloran, Aylwin et al. and, 277. Giluior, Giigy v., 309. Gilmour ct al. v. Dyde et nl., l.'>9. Gilmour, Ferguson v., 85, 119, 242, 244, 321. Gilmour, Minor v., 267. Gilmour ct al., Torrance ct al. v., ?>^). Gilmour, Wbisbaw v., 168, 241. Giltncr et vir. v. (Jouin, 191. Gingras, Auger v., 7.'). Gingras, Banquc dti Peiiple v., 309. Gingras, Bex. v., 60. Gingras, Boulier and, 38, 39, 268. Gingras, Byland v., 178. Girnrd v. Blais, 143. Girard et al., David v., 9. Girard, Lafieur v., 106, Hi. Girard, Quintiii v., (note 100,) 174, 335. j Girouard v. Beawdry, 110. Girouard v. Laclmpelle et vir., 246. Giroux V. Binet, 198. Giroux V. Gautliier, 149. Glackomeyer v. Day, 218. Glackemeyer v. 'Die Mayor, iVc, of Quebec, 173, tl'Hl Glackemeyer ctaland Perraii!t,241. Glackemeyer, Tetu et al. and, 148. Glass V. .Tosoph et al., 71. Glen et al., Bank of Montreal and, 41. Glencairn, The— RosHu Castle, The, 32, 67, 324. Globenski, Leclair v., 163. Globensky and Laviolette, 109. Globensky, Leprohon v., 131. Globensky et ux. and Lukin, 131. Globensky, Paquet and, 219. Glodiie, Gauthier v., 4, 7. Glouteney v. Lussicr ct al., 238. (Jodin V. McConnell, 273. Ctoldsmid ot al., Cosey and, 22, 157, (ioodman, Exp., 61. Gordon V. Henry, 99. Gordon, Ilogan v., 2. 53, 275. Gordon et al. v. Pttlloek, 44. , IftP, 331. (iruiit, Hnrbeau v., 238, ^30. (iruiit av<\ Hrown, 174. (inint V. I'jnnte, 'J0I,333. ti'miituiul l*niiCi|>i»lOUi«-oraic>rArtill('rv, 181. (ir»vei, Adaili* v., 307. Cruv*.! ' . Uriuit'HK, lOi. liruvel, f.,i\ ')i(> v., 1%, (Jruvt'Ue V, Hi ii niUiiii, '^'U. (iravcly, lliisselJ et iil. and, CO. ( .'rny, (iilh'spic! ft ul. v.. *J33. (ireat Western lluilway Co. v. t'awcett iiiiil Hmid, 94<. (rreuves v. Mui'liirlane, M8. (Jreen, Doiitro v., 40. (ireen v. lint Hold, f>0. (ireen, Pozer v., 2Hi. iireeiishifl(l.>s et ui. v. (ianthici, '^JO. (rrcunshiolds v. IMuuiondun, 'Mi, 3VJ. (irtguire v. LaCerriere, HI. (irfgoirc, Lavoie v., 202, 23S. (rrt'}.;ory and Ilonshuw, 127. (Jrenior v. Cliaiimont, 14-fV, 261. (xrenior ol al., v. Kourquin et a!., 16.*>. (irenior v. Leprohon, 93. (Jrenier, McDonald v., 206. (Jr6nier, McDonnell v., 205, 206. Grenier et vir. v. The Monarch Life Association Co. 120, 158. Grenier, Parent v., 299. Grenier et al. St. Denis v., 336. j Grenier, Vandal v. 113. i Grey v. Todd et al., 9, 97, 282. 1 Griffin, Gale v., 140. ' Griffin, McGoey v., 229. Grinton v. The Montreal Ocean Steam- 1 ship Company, 22f>. Xircom and Boucher, 60. i Groulx, DeBeaiijen and, 301. Groulx, Verdon v., 6, 106, 312. Guay et al. and IJIanchet et al., 199. Guay, Exp., 60. Guay, Guenard v., 312. Guay V. Hunters, 74. Guay V. Lefebvre, 218. Guenard v. Guay, 312. Guenette, Beaudiy v. and The Cor- poration of Montreal, 126. Gucnette v. Blancliette, 1.32. i Guevremout. Dufresno v., 43. Guevremont v. Lunieie, lil,s,et al.,22r). (Tiievremont, Morasse, v., 211. GuiHbyle v. Tate etal., 123. G'uillciuot, Diimainn v., 49. (iuillt't dit Toinangoau and llonnnd, 24r., .336. Guiluu'llic, Kanixay v., 1S2. (•ningiic, |)*anitiiir et at. and, 127. Giigy, Mani)ii(! de IV'iiplu v., lUI, 12^. 293. Giicy, Hertrand v., 163. (iiigv, Hrown, v., 83, III, 267,337, '341. Gugy tiiid (.Muniinard, IH|,20.'i. (iugy V. Doiiairhuo, 78, 221, 337. Gugy and Diicht'snay. 74, (tugy, I'innatiiigi'r v., 6. (Jugy, Kxp., 87. Gugy and Fergnsson, 22, S4, 227. (iugy V. (iilnior, 309. (Jugy", I't'iry and, 102. ( iugy, (hut, ft al. V. 216. (uigy and (itigy (iiote 20,) 26. (Jugy, Kerr v., Ht, 3ir). liugy and Larkin, 248. (iugy and Mitgiiire, 244, 301. (lUgy, lU-naiid and, 112, itii, 2r)9. (iugy, Stevenson v., (note l.*)0.) (iuy'et al. Bcrtlifht and, 32,34, 123. (Juy V. CMarkson and MrLfan, 132. (iuyon, Shutfr v., 231. Guyon dit Lfnutfne v. Lionuis, 129, 231. Gwilt* Sweetapple v., 72, 291, llagan and \\'jiglit, S.'). IlaiducThf, 12, 13, 170, 179,323,328. Ilainaull. Lynfh and, 108, 24.'), 283. llalcro and Delesderniers, 219, 228. Hall and Dubois, 9H. JIallerty, Minu) v., 277. Hall and Roaudft, 74. Hall V. liradbiiiv ft al., 221. Hall V. Douglas," 133. Hall,Tlif Harbour Commissioners v., 7. Hall etui. McBliiin v., M. Hall et al. lN)slon ft al. v., 16.*). Hall anJ Thompson, I7S. Halpiu, Ryan and, 2, ir)2, 204. Hamel, Aiul.-t v.. 262. HauH'l, Chassfur v., 301. Hamel et al. v. C6te, 51, 55. Hamel, .lobin v., 1.32. Hamel V. Jo.seph, 110. Hamel, Stewart v., 2^8. Hamelin et al. Lenoir v., 334. Hamilton et al. v. l-'ruscr el al., 12, 253. \ 1 1 ; 9, 246. Hart, Mullory and, 117, 236,312. Hart et al., v. iVlolson et al., 18. Hart, McCarthy and, 37, 305. Hart v. iMcNeif, 313, 338. Hart, Paterson v., i)3, 232. Hart et al., and Phillipps, 152, 229. Hart, Saiicisse et al. v., 95. Hart V. Vallidres, 78, 216. Hart, VandtMivelden and, 141. Hartiguii, Brown et nl. v.,3r>, 118. Hartshonie et nl., v. Scott et al., 223. Harvey v. Aylnu'r, 137. Harvey, Exp., 31, 172. Harvey, Maguire v., 273. Ibiru'ood v. Shaw, 313 llarwood et ux , and Whitlock et al., 26 f>, Huskill, .Spalding v . 10. Hass.4 V. iMuicabcy, 51, 52. Jlasfie V. Morland, 191.222.280. Hartticid, (Trecu v., 50. Harffielil, McCulloch i-t al. and, 85. Haws, lloiirassii v.. 272. Hayden v. Fitzimmons, 95. Hays, David v., 144, 238, 247. Hayes v. David, 6. Hayes v. Kelly, 273. Hf>adley, Charlebois and, 18. Healey v. Labelle, 17.5. Heath, Footiu^r v., 9, 325. Ilearle and Date, 114, 129. llearn and Lampson, 21. 23. Ilearii, ^^'ood and, 199. llebcrt, Compagna v., 180. Hubert. Did>ois v., 214. Hebert and Fabriquo de St. .lean, 84. Hubert, Orr v., 314. ileiliwell v. Mnllin,221. Hempsteail and Dnimraond et al., 251. Henderson, Bignell v., U>7. Henderson, Bradford v., 230. Henderson v. Ca verb ill, 59. Henderstin v. linness, 44, 53. 269. Henderson, Pinsonnenult v., 31. Henderson, Warren v., 59. Heney and Holland, 24. Henry, (iordon v., 99. lleury v. Mitchell, 226. Henry, Kiiel v., 99. Henry, VVurtele et al. v., 33. Henshaw v. Dyde, 204. Henshaw, Ciregory and, 127. Herald v. Skinner, .56 Herbert and Farrell, 240. . Herb(!rt anti Kennell, 196. Herbert, (iorri»> v., 124. Ilercyua, 'I'he, 179. Hertel de Kouville and Bank Midland District, 190. Hervieux, Caiss6 v., 221. Uescrofi; Scott v., 99. Heugh et al., v. Ross et al., 56, 343. Heward, Syme et al. v., 46, 222. Hibbard, Perrigo and, 70. Hickey, The Scliool Commissioners of Chambly v., 4. Hickey et al., Unity Ins. Co. v., 128. Higgins, Pnrington v., 237, Higgins et al., v. Robillurd, 136. lligginson V. Lyman et al.. 200, 201, 212, 321. Hilaire and Li/.otte, 19. Hill and Bigge el al., 137. liillier v. B« ntley, 146. llimes, McNamee v., 203. Hislop V. Emerick, 289, 318. Hitchcock V. Meigs, 54. Hitchcock and Monnette, 19. llitchins, Ramsay v., 103,270. TABLE OF CASKS. XK? llobbs ot al., V. Hart et al., '250. Ilohbs et al., v. Jackson et al., 172. Ilobbs V. Senecal et al., 58. Ilobbs V. Seymour et al., 41, 151. Iloilge, McGinnis and, 172. Hollhung and Tortm-, 22, 161. Hogan, Brown v., 139. llogan V. Gordon, 2, 53, 276. Hogan V. Huskins, -tS. Hogan et al. v. Scott, 238. Hogan and Wilson, 180. Hogiie, Kxp., 80. Ilogiie and iMiirray. 8fi. Hogue, Tiirgeon v., 127. Holdi'ii, Kxp., 80. Holland, Honey and, 24. Holland v.Thibaiideau, 100, (note 100,) 2+3.- Holland and Wilson et al., 227. Holmes v. Carticr et al., 14(). Holmes v. AJcNivin, 94. Holt et al., Laroche v., 37. Holt et al.. Keg. v., 131. Homier v. Demers, 70. Hoi)d et al. v. Shaw, 252. Hook, Exp., 80. Hooker et al., Brewster et al. v., 59. ILx)ker et al., Robson v., 58. Horan, Kelly v., 54. Horner et al., Seymour and, 151, 152, 153. Hoskins, Hogan v., 48. Hotte, Gignon v., 226. Hoiulf, Laterricre and, 299. Howard vs. The Camillus, 64. Huwiird et al. v. Cliilds, 4. Howard, Elliott and, 126. Howard v. Sabonrin, 249. Howard v. Stnarf, 75, 212, 2J3. Hoyle et al., Maiidigo et al. v., 78. Hoyle and Torranct> ct al., 240. Hutchinson v. Gillcspit', 96. lludon, Gfignon and, 9, 43. Hudon V. Hndon et at., 171. Hughes V. Reed, 182, 237, 282. Hughes, Rtuisscau and, 165. Hughson, Reg. v., 151. HuUet V. Wright, 174. Hunt V. Bruce, 113, 168. Hunt V. .Idseph et al., 171. Hunt et al., Ryan et al. v., 74. Hunt, Theberge v., 176. Hunter, Adams v., 86. Hunter, The City Bank v., 272, 274. Hunter v. Darwin, 89. Hunter, Traux v., 289. Hunters, Guay v., 73. ♦ Huot, Bardy v., 240. Huot and Donais, 110. Huot and I\lcGill,38. Huot dit St. Laurent, Norniand v., 226. Knot V. Page, 163. Huot V. Parent et al.. 14, 239. Hussey, Wade v., 122, 307. Husson, Beaubien and, 246. Huston V. (irand Trunk Railway, .57. Hutcheson, McLaren et al. v., 275. Hutchinson, Campbell et al. v., 302. Hutchinson and (Tillespie et al., 126. Hutchins, Dor.."i et al. and, 98. Hulchins, Lamothe v., 144. Huston, Dastous v., 136. Hutlon, .Joseph et al., 250. Hynes and McFarlane, 92. Idler V.Clarke, 278. Idler, Ryan and, 164, 320. Imbault and Bourque, 19. Industry Village and Rawdon Railroad Co., White v., 255. Inga, The, 67, 193, 271, 303, 316. Ingham and Kirkjwitrick, 35. Ireland v. Stephens, 103. Irvin and Maloney, 337. Irvine, Smith v., 168. Irwin and Boston, et al.,233, 296, 297. Jrwin, McPherson v., 79. Irwin, Tuft v., 238. Isaacson, Nye v., 306. Isabella, The, 37, 327. Ives, Stuart and, 236, 312. .1. V. R., 333. .Tackson et al. v. Coxworthy et al., 165. Jackson, Dean and, 234. •lackson et al., Fahey et al. and, 111, 113, 161. .lackson v. Filtcau, 344. Jackson v. Eraser, 113,281. Jackson et al., Ilobbs et al., v. 172. .lackson, Lanouctte ct al. v., 45. .lackson et al., Lcger v., 69. .Tjickson v. l\vigc ct al., 21 1, 280. .lackson et al. aiul Paquet, 256. .lacobs. Bender v., 291. .Iac([iii's V. Roy et nx., 224. .lames McKcn/ic, The, 303. .lameson, Fisher v., 108. .lamicson v. Larosi', 250. Jameson, McFarlane v., 269, 292. Jamieson et al. v. Boswell et al., 128. Jane, The, 186, 258, 326, 327. A.: .1 W l * :■< /? XXVI TABLE OF CASES. ) ,. Janes, Brcxik^n v., 175. Janes et al., Syme at al. v., 58, 193. Janes et al., Tate et al. v., 28, lU*. Jannot v. AUard, 73. Janvrin v. Lemesurier, lO^. Jany and The Trust and Loan Co., 19, 132, 3*3. Jasmin v. LafunUiisie, 330. Jeffery, Dinning and, 136. Jeffery, Mullen v., 327. Jettery, Shaw and, 134-, 162. Jenkins, Russell v., 262. Jenkins, Simard v., 167. Jersey v. Rowcll, 288. Jervis v. Ki.lly, 85. Jett6 and Choquet, 202 (note 203.) Jobin V. Hamel and Hamel, 132. Johin, Lanaudicre ct al v. 182. Jobin V. Moriset, 175. Jodoin V. Dubois, 4-7. Jodoin V. Dufresue et al., 189. Jodoin, Morissette v., 300. John Counter, The, 68, 30+. John and Mary, The, 130, 210, 2U, 307, 308. John Munn, The, 32, 205, 271, 302. Johnson v. Clarke, 6, 252. Johnson et al. v. Geoffrion, 249. Johnson et al. and Lomer, 178. Johnston et al. v. Archambault, 295. 313. Johnston and Bonner, 278. Johnston, Bristow v., 201. Johnston, Chnke and, 227. Johnston ct al. v. Geoifrion, 118. Johnston, Lumarche v., 126. Johnston, Langlois et al. v., 180. Johnston v. Whitney, 72, 169. Jolin, McKen/ie v., 76, 88. Joly v.Qjignon, 194,267. .Toly, Ritchie and, 177. Joly, Rodier v., 278. Jones and Anderson, 277. Jones, Brush v., 201. Jones et al., Campbell et al. v., 59. .Tones, Fuller and, 312. ..Tones, Hart v., 5:), 246. Jones V. Laing, 132, 140. Jones V. Lenie.Mirier et al., 203, 277. .rones V. McNfilly, 225. .Tones, Quebec Building Society v., 11, 87. Jones, Robertson v., 262. Jones, Roe v., 118. Jones V. Saumur, 1, 275. Jones V. Whitty, 251. Jones et al. v. Young, 90. Jordan and Ladri6re, 132, 190. Jordeson v. McAdams, 74, 93, 96. Jorgensen, Moisan and, 266. Joseph V. Brewster, 97. Joseph, The British American and, 159, Joseph V. Castonguay, 3, 343. Joseph V. Cay and Cay, 204, 209. Joseph and Cuvillier, 39. Joseph V. Delisle et al., 249. Joseph, Delvecchio v., 4, Joseph V. Donnelly, 206. Joseph, Exp., 190. Joseph, Footner v., 29. Joseph et al., Glass v., 71. Joseph, Hamel v., 110. Joseph, Hunt v., 171. Joseph et al. v. Hutton, 250. Joseph, McKenzie v., 39 Joseph V. MolFatt and Castongue (note 174.) Joseph V. Morrow et al., 283, 320, 337. Joseph V. Ostell, 28, 29. (note 38.) Josepha, The, 235, Jourdain v. Miville, 46. Joutras V. Dunlop, 49, .54. Joyal, Farran v., 215, (note 215.) Judah, Aylwin v., 6, 84, 341. Judah, Exp. 257. Judah and Rolland and Judah, 3, 257. Judah V. Lavoie, 31. Judah, McCarthy and, 321. Judah et al., Ramsay v., 72. Judah and Esty, 106, 124, 207. Julien, Trust and Loan Co. v., 206. Juneau, Beliveau v., 2.54. Karrigan, Martineau v., 152, 153. Katham and Dunn, 244. Kaunty et al., McKillip et al. v., Ill, 263. Kay and Simard, 104. Kay, Warren v., 165. Kearney v. Kinch et al., 246. Kearney v. McHale, 2, 27.5. Keeler, Wheland v., 264. Keith V. Bigelow, 73. Kellani, Osgood and, 219. Kelly V. Frascr, 119,232. Kelly, Hayes v., 273. Kelly V. Iloran, 54. Kelly, Jervis v., 85. Kelly et al., McClure v., 279. Kelly, Parsons et al. v., 201. Kelly V. Sharpnell, 176. Kelton V. Manson, 104. V hill TABLE OF CASES. XXVH Kemp V. Kemp, 56, 258. Kennedy v. Aylmer Steam Mill Co., 115. Kennedy v. Bedard, 291. Kennedy, Supple and, 119, 337. Kennedy et al. and Smith, 128. Kerfut et al., Montreal and City and District Bdg. So. v., 262. Ki:!rr V. Gildersleeve, 261. Kerns et al., Shellon v., 136. Kerr v. (lUgy, 84, 315. Kerr and Livingston, 281. Kerr, Wilson v., 162. Kerrigan, Latham v., 141. Kerry v. Pelly, 85. Kerry et al., Piatt v., 172. Kershaw v. Delisle et al., 125. Keys V. Quebec Fire Assurance Com- pany, 4-7. Kierzkowski and Grand Trunk Rail- way Co., 182, 183. Kierzkowski v. Lesperance, 123. Kierzkowski, Morison v., 229. Kilborn et al.. Be swell and, 25, 92, 281, 289. Kinch et al., Kearney v., 246. King and Broakey, 36. Kingan v. The Mayor &c., of Mont- real, 83. Kingsbury, McAdam v., 4, 7. Kiugsloy, Delesderniers v., 145. Kinnear et al., Starnes et al. v., 201. Kinnay and Perkins, 269, 292. Kirk, The Bunk of Upper Canada v., 56. Kirkputrick, Ingham v., 35. Klein, Putez et al. v., 328. Knapp et al. and Bank of Montreal, 44. Knapp et al., Murphy v., 1, 5. Knowlton et a).. Bell et al. v., 224, 288. Knowlton et al. v. Clarke et al., 24. L G vs., 31. Labadie and Truteau, 140. Labbe v. Mackenzie, 44. Labelle, lloalcy v., 175. Labellp, Laurent et al. Labelle, M-alo v., .H. Lubelle, Le >S6uiinaire de Quebec, 181. Labelle, Seuecal and, 124, 291. Laberge v. De Lorimier, 96. Labreque v. Boucher, 142. Labrecque, Fradet v., 46. Lachapelle, Girouard v., 246. Lacasse v. Lacasse et al., 295. v., 308. Lacombe and Fletcher, 98, 316. Lacoste v. Chauvin, 241. Lacroix and Lambert, 10. Lacroix v. Perrault, l'^'*'. Lacroix, Poirier v., 10b, J60, 203'. Lacroix v. Prieur, 175. Ladri^re, Jordan and, 132. Lady Aylmer, The, 167. Lady Seaton, The, 187, 214, 328. Lafantaisie, Jasmin v., 330. Laferridrc, Gr^goire v., 144. Lallamme, Beaudry v., 14, 232, 245, Latlamme, Les Syndics de Lachine v.. 268. Lafleur v. Douegani et al.,261. Lafleur v. Girard, 106, 144. Lafond etal. y. Chagnon, 263. Lafond, Derome v., 86. Lafontaine v. Suzor, 319. Laframboise et al., Mercure and, .56. Lafrenayo, La Societe do Construct iovi Canadienne v., 102. Lagrange, Desbarats v., 233. Lahaye et al., Exp., 47. Lahayes, Exp., 61. Laidlaw, Egert ct al. v., 53. Laing et al. v. Bn^sler, 272, 27a. Laing, .Tones v., 132, 140. Lajoio Pelletier v., 41. Lalonde v. Lalondo, 4, 85. Lalonde and Martin, 2, 106. Lalonde v. Rowley, 85. Lalouette dit Lebcan et al. and Delisle ctal.,213. Lamarche v. Johnston, 126. Lamarcho v. Lcbvocq, 50. Lambe, Bell v., 336. Lambe, ^lann ct al. v.. 38, lll.lGI, 168, 2-22, 289. Lambert v. He'itnuid, 46. Lambert ami Gauvreau et al., 335. Lambert, Lacroix and, 10. Lambert v. LefiMU^ois, 171. Lam6re,fils et al.,Guevremunl v.,22;'>. Lamere, I'unulis v.. \9^. Lamirande et al. v. Dnpnis, .X Lamiraude, IMaichand ami, 291. Lamontiiiriio, La Suciele do Construc- tion Canadienne v., 102, 280. Lamontagne, Ta vernier v., 199. Lamothe and Chevalier, 31, 131, 220. Lamothe et al., Dubois and, 171. Lamothe et al. and Fontaine, 181,314. Lamothe and Garceau, 41, 207, 26S, 294. Lamothe v. Hutchins, 144. I', i' ' I ff xxrni TABLE OF CASES. ill! Lamotlie et al., Lenoir and, 87. Lamothe and Ross, 144>. Lamothe et al. v. Talon, 105, 181,208. Lampson v. Barret, 275. Lampson, Blais v., 222, 294<. Lampson, Hearn and, 21, 23. Lampson, Lee v., 122. Lampson v. Nesbitt, 305. Lampson, Noad and, 203, 279. Lampson v. Smith, 49, 51, 191. Lampson, Symes and, 299. Lampson v. Taylor et al., 240, 242. Lampson and VVurtelle, 21, 24. Lanaiuliere et al. v. Jol)in, 182. . Lemesurier, .htn\ rin v., 104. Lemesurier ot al,, .loiies v., 203, 277. Lemesurier ct al. v. Loi-aii et ;d., i>8, 281. Lemesurier v. AlcCaw, 40. Lemesurier and Municipal Council of Chester West, 197. Leniieux, Casavant and, 331. Lemieux, Cote and Cote, 41. 246, 252. Lemieux, Couillard v., 304, 337. Lemieux, Delery and, 219. Lemieux, Gauthier v., 85. Lemieux, Gcndron v., .54. Lemieux, Young v., 184. Lemoine et al., Boucher v., 205, 226. Lemoine v. Donegani, 208. Lenfesty and Metivier, 45. Lenf'esty v. Renaud, 146. Leman v. St. Lawrence and Atlantic R'road Co., 138. Lenoir, Exp., 256. Lenoir v. llamelin et al., 334. Lenoir and Lamothe et al., 87. Leonard, Bell v., 27. Leonard et al., Chef v., 96, 122. Leonard, Exp., 62, 80. Leonard, Moreau v., 128, 152. Leonard et al.. Mountain v., 171. Leonidas, The, 32, 65, 66, 236, 270. Lepage, Beaucaire v., 292. Lepailleur v. Scott, 41. Leprohon, Corporation of Ste. Rose v., 48. Leprohon v. Globensky, 131. Leprohon, Grenier v., 93. Lepron v. The Mayor, &c., of Mont- real 1 12. Lerig6, Boston v., 75, 112, 227, 291. Lerig6, Paltenaude and, 147. Leroux et al. v. Crevier et al., 106. !i • 'I ' A ■■•.1 I '. ' /T* XXX TABLE OF CASES. IM Leroux, G6n6reux v., 165. Lcroux, Prevost v., 74. Lesage, Marsolais v., 222. Lesieur, Comstock et al. v., 288. Leslie et al. and Molson's Bank, 271, 343. Leslie et al. v. Shaw et al., 83. Lcsp^rance and Allard et al., 123, 153, 206. L'Esp^rance, Dorval v., 296. Lc'speruuce, Kierzkowski v., 123. Lesjtenuice v. Langi'viu, 122, 207. Letounieau, Mire v., 243. Letounioaii, Woodiiuin v., 103,270. Levar, Coiirville v., 216. Levers; in et iil. and JJoston, 13, 86, 1 19, 136, 205, 233. Leversou et al. v. Ciiiiningharn, (note 13:'),) 204, 209, 272, 288, 296, 298. Levesquo, Belanger v., 177. Levey and Lowndes, 99. Levey, Iviisscli and, 92. Levey and Sponza, 86, 127. Levey v. TunibuU ct al., 98. Ljwis V. O'Neill, 3; 8. L'Hoist V. Butts, 49. Limoges v. Marsant, 149,207. Limoges vi vir., ra([iiette v., 189. Lina et al. v. Boyer, 242. Lindsay, '"^cutt v., 2r>3. Lionais, Giiyoii v., 129, 231. Lislois, Aubiii v., 5. Lisotte V. Buhner, 230. Little and Diganard, 190, 318. Liverpool and Loudon Fire and Life Ins. Co., Maguire v., 316. Livingston, Kerr and, 281. Lizotte, Ililaire ana, 19. Lloyd, Bosvvell v., 30, 37, 178, 227, 231 29") 343. Lloyd v! Clapluun, 9, 97, 204, 282. Lloyd, Mc(;ratli v., 113, 207. Locke etal., Boudrot and, 272. Lockwoods, The, 187, 192. Logan V. Andy, 290. Logan et al., Lemesurier etal. v., 98. 281. lioiselle, Fraser v., 45, 122. Lomas, Turner v., 216. Lorner, Clark, v., 178. Lomer, Johnson et al. and, 178. London, The, 130, 210, 301, 307, 322. Longmuir and Ross et al., 122. Longpre, Courcelle v., 31. Longpre, Sanche and, 75. Loranger and Boudreau, 194, 313. i Luranger v. Perrault, 171. Loranger, Rolland et al. v., 332. Lord John Russell, The, 64, 65, 136, I 210, 218, 235, 262. Lord V. Moir and Piatt, 136. Lorin et al., Panet et al. v., 139. de Lorinier, Laberge v., 96. Lotus, The, Clark, 64, 69. I Lonpret, La Coriwration de Charably Lovell V. Campbell et al., 168, 169. Lovell v. Fontaine, 208, 311. Lovell V. Meikle, 250. Low , Auclaire v., 126. Lowndes, Levey and, 99. Lucas, Petit v., 77. Lukin, (ilobensky et ux. and, 131. Lurnley, Bottomley et al. v., 48. Luneau, Talbot v., 163, 306. Lussier,"Corporation of St. Philippe and, 24. Lussier et al., (ilouteney v., 238. i Lussier v. McVeigh, 9. Lydia, The, 193. ■ Lyman et al. v. Bouthillier, 91. Lyman et al. v. Chamard, 225. Lviuan et al., Uigginson v., 200, 201, 212,321. Lyman et al. an<1 Peck, 200. Lyman et al. v. Perkins, 228. Lynch and Blanchet, 19. : Lynch and Ilainault, 108, 245,283. Lynch v. Leduc, 148. Lvnch V. McLennan et al., 310, 3n. i Lynch, Merritt v., 39, 201, 249. Lynch V. Papin, 63, 85, 127, 263. ; Lynch v. Poole, 73, 190. McAdajii v. Kingsbury, 4, 7. McAdams, Jordeson v., 74, 93, 96. Macalistcr, Nye v., 48. McAuley, Molson et al. v., 297. i McBean v. Debartzch, 73, 124. McBean V. CuUin, 216. ■ McBlain v. Hall et al., 11. McBlain and Olivev, 210. I McCallum, Ouimet v., 135. i McCallu'.: r*. al., Pater.« jn et al. v., 140, ' McCali.-..!i V. Pozer, 294. ; McCann v. Benjamin, 300. I McCarthy et al. v. Barthe, 250. I McCarthy, Georgen v.. 43. I McCarthy and Hart, 37, 305. McCarthy v. Judah, 321. I McCarthy v. Laurier, 300. ; McCarthy v. Senecal, 139. i . TABLfi OF CASES. XXXI McCarty, Duiikerley v., 333. McCaul, Harrington v., 234. McCaw, Lemesnrier v., 40. McCleverty, Exp., O'Mara and, 3. McCloskey v. McGinnis, 35. McClure v. Kelly et al., 279. McClure v. Shepherd, 296. McConnell, Godin v., 273. McConnell, Shaw v., 3, 272. McCord V. Bellingliam, 110. McCorkill, Bo\vkor v., 112, 269, 338. McCorkill, Bcrriuii and,2+. McCormick, I\lcLeuu v., 226. McCoriiiiek, Robinson v., 2G!», 292. McCracken, .Miiollirlant' v., 2(iS. McCuaig el iil., British Fire anti Life Ass. (.'o. and, 224. Mcrullocli. Exp., 137. McCiiUc.ch et al. and llattield, 85,266. McCulloc-h V. McNevin, 28. McDoni.ia ct al.. David v., 116, 342, 343 . McDonald, Delisle v., 251. McDonald v. Dunn et al., 293. Mo Donald, J'llliot v., 156. McDonald et al. v. Gamble, 223. McDonald v. (irenier, 205, 206. McDonald. Gardner v.. 125. McDonald v. McLean, 78, 190. McDonald et al. v. Miller et al., 6,231. McDonald and Montreal and New- York H'way, 184. McDonald et al., Morrill v., 289. McDonald, Nye v., 117. McDonald and t^iiinn, 198. McDonald et al. v. Roy, 214, (note 21.5). McDonald v. Seymour, 104, 248, 293. McDonald, Synies v., 149. McDonald, Tator et al. v., 213. McDonnell et al.,Erigliam v., 289. McDonnell et al. v. Collins, McDonnell v. (Jrenier, 205. McDonnell, New City (xas Co. v.,215. Macdouall, Butler v., 180. McDouall v. Fraser, 98, 281. Macdougall v. Allan et al., 58, 194. McDougall, Cooper v., 194. McDougall and Corporation of St. Ep'hremd'Upton, 31,219. McDougall V. Dubord, 164. McDougall V. McDougall, 111. McDougal V. Morgan, 227. McDougall, Redpath et al. v., 306. Macdougall v. Torrance, 48, 52, 58, 59. McEdward, Stewart v., 1 14. McElwee v. Darling, 3. Macfarlane v. Airabault, 33. Macfarlane v. Beliveuii, .52, 57, 338. Macfarlane v. Bresler, 111. Macfarlane v. Delosderniers, .338. Macfarlane v. Delisle, 35, 309. Macfarlane v. Drapor 124. Macfarlane, G' reaves v?, 9S. McFarlane, Ilynes and, 92. McFarlane v. .Tanieson, 2()!t, 295. McFarlane ot al. and Lcclaire et a!., (note 20.) 26, 33. Maclarlane v. McCra>'ken, 268. Mactiirlane et al.autl .MaektMizie el al,, 34. Macfarlane v. Pattou, 203. Macliuiane v. Uo;lden et al., 75, 319. Macliirlane and Koy el al., 310. Maclarlane v. Ruthertbrd, 240. Macfarlane v. Thaver, 45, 46. Macfarlane and VVhiteR.rd, 310, 311. .Macfarlane v. VVorrall, 223. Mcdarvey v. Auger, 201. McCiarvey, Mettayer v., 1,275. McCiibbun v. St. Louis dit Lalampe, 2!)2. McGill, lliiot v., 38. McCili, Min-pliy v., 218. .^leliill v. Wells, 224. McCJillis et al. v. Pearce et al., 23. Mcd'illivray v. Gerrard, 334. .Mc( lillivray, Montreal Ass. Co. and, 26, 1 17, 1.55, 156, 160, 168,227,254. McUillivray, Plenderleath v., 5.264. McGinn and Rrawders, 20, 105. \ McGinn, Morris et al. v., 74. ! McGinnis v. Choquet, 318. ■ McGinnis, Delisle v., 240. McGinnis, Doutre v., 51, I McGinnis and Ilodge, 172. ! McGinnis v. McCloskey, 35. ! McGinnis, The Queen and, 195. ! xMcGoey v. Griffin, 229. , McGrath, Clarke v., 3, 168, 228. McGrath v. Lloyd, 113, 207. McGreevy, Bosquet v., 213. McGuillan, Esiuhart v., 202. McHale, Kearney v., 2, 275. McHugh et al., Pirrie v., 171, 226. Mclnenly, Brown v., 261. McKay v. Demers, 310. Mackay et al. v. Gerrard et al., 215. McKay v. Rutherford, 112, 113. McKay v. Simpson, 21. Mackay, Trust and Loan Co. and, 153, 294. < li: ^^ sxxn TABLE OF (?ASE8. \\4 I' a f McKennu v. Tabb, 28. McKenzie ct ul., Bailey v., 129. McKenzie ct al. v. Douglas et al.,233, 276. McKenzie,Exp., 184-. McKcnzie et al. v, Forsyth et al., 309. Mi^Keiizie v. .lobiii, 76, 88. Mclvenzic v. .Joseph, 39. McKenzie, Labbe v., 44.. McKcnzie et al.,Macrarlaneet al.and, 33. McKcnzie V. Taylor, 244. McKcnzie V. Tetu et al., 199. McKerchcr and Simpson, 27. MackiC and Cox, 54. McKillip et al. v. Kaunty et a!.. Ill, 263. McKinsiry, Cnthbert v., 181. Mackintosh et al. v. Dease, 309. McLachlan, Alexander v., 49. McLaren ct al. v. llntoheson, 275. McLaughlin et al. v. Bradbury ct al., 143. McLean, Uuudria et vir. v., 189. McLean v. AlcCurniick, 226. McLean, McDonald v., 78, 190. McLean v. Ross, 137. McLennan, Lynch v., 310, 311. McLennan et al., Thorn v., 19, 102. 3IcLennan, Wood v., 89. McLeod V. Meek, 247. McLeod, Thompson v., 241. McMahon, Zeigler v., 278. McMartin v. Gareaii, 173. McMaster. Copontt et al. v., 90. McMaster and \A'alker et al., 99. McNally, Aylwin y., 279, (note 279.) McNally, .loncs v., 22ri, Macnanuira v. ^leagher, 49, 1 12. i\IeNanii'e v. lliiues, 203. McNeil, Hart v., 313, 338. -AIpNevin y. The Board of Arts, Arc, 71. McNevin, Holmes v., 94. McNevin, McCulloch v., 28. McNeviii, Tate et al. y., 21 r>. McPherson el al.. Attorney General y., 45. Macphersonv. Bank ol B. N. A., 114. Macpherson ct al.~. Counter and, 76. McPherson y. Irwin, 79. McPherson v. Mayor, etc., of Quebec, 254. McPherson, Murray and, 333. McPherson, Routh et al., 266,278. McPherson et al. v. St. La>vrence In- land Marine Insurance Co., 293. McCJueen, Brisson v., 4-9, 97, 166. McQuiggan, Rcgina and, 43. McTavish and Pyke et al., 189. McVeigh, Lussier v., 9. Madon, Bernesse v., 134. Magrcen v. Aubert, 292. Maguire v. Bradley, 279. Maguire, J'Jxp., 40, 137. Maguire, Davis v., 202. Maguire, CJugy and, 244, 301. Maguire v. Harvey, 27^ Maguire v. Liverpool and London I'ire and Lifie Insurance Co., 316. 3Iaguire, Routh v., 291. Maguire and Scott, 13, 127, 212. Maguire, Seminary uf CJuehec v., 281. Mahoney et al. v. Tonikins, 289. Mailhot y. liernier, 54. Maille and Chapleau, 19. Mailloux et al. Brown v., 115, 203. Mailloux, Exp., 145. Mailloux, Pinsonneault v., 276. Maitlanil v. Molson, 69. Maitland, Vankoughnet v., 311. Major et al. v. Baby, 209. iNlallet and Dcsbarats, 209. Alallory and Hart, 117, 236, 312. ': Malo v. Adhcmar, 280, 311. ' INlalo V. Labelle, 54. Malo v. Nye, 115, 128, 161, 319. '■ Malo v. O'Heir, 243. : Malo, Perrault v., 226, 243. ' Malo, Rvan et al. and, 249, 251. ■ Malo v. "Wurtele, 161,319. M alone and Tate, 119,337. ' Malony, Irvin and, 337. Maloneyand Quinn, 129. Mandigo et al. v. Hoyle et al., 78. Mangan, Thibautleiui v., 1S4. Mangeau v. Turenne et al., 231. Mann, Cunuuing et al. v., 281, 313. Mann et al. v. Lambe, 38, 111, 161, 168,222,289. ! Mann v. Wilson, 195. Manson, Kelton v., 104. Marathon, The, 329. \ Marchand v. Cinq Mars, 274. ; Marchand, (Jauthier v., 232. ' Marchand and Laniiraude, 291. I Marchand v. Renaud, 77, 101. Marchildon v. Mooney, 86. Mercill, Benoit et al. v., 336. Marcotte et al., Gaudry v., 286. Marcoux v. Bitner, 218. Margaret, The, 324. Marion and Perrin, 105. TABLE OF CASES. XXXUI Mnrois and AIIair«, 25. Marois v. Bernier, 87. Marsajit, Limoges v., IIO, 207. Marshall v. The Grand Trunk R'way Co., 95. 238. Marsolais v. Lesage, 222. Marteau v. T^reau, 332. Martel, Beanpr^ v., 122. Martel, Langlois v., 291. Martel, Thomjwon and, 208. Martha Sophia, The, 324. Martin at al., Blanchet v., lOt, 239. Martin v. Cot6, 314i. Martin, Lalonde and, 2, 106. Martin, Laviolette and, 190, 283. Martin and Lee, 173, 334. Martin v. Martin, 10, 105, 229. Martin v. Xoreau, 263. Martin, Reg. v., 151. Martin, Tetu v., 41, 146. Martineau v. Cadoret, 210. Martineau v. Karrigan, 152, 153. Mary Bannatyne, The, 67, 68, 182,271. Mary Campbell, The, 65, 66, 69, 102, 116, 180,301,315. Mary and Dorothy, The, 12, 192, 211, 237 323. Mary Janer The, 12, 134, 167, 179, 193, 235, 323. Masse, De Beaujeu v., 153. Masson et al., Castongue v., 288. Masson, Chapman v., 13, 116, 127,213. Masson et al. v. Choall, 209, 310. ]\Iasson et al. v. Corbeille, 320. Masson et al. v. Desmarteau et al., 332. Masson, Latour et al. v., 224. Masson vs. Mullins, 298. Masson et al.. The Sun Mutual v., 186. IMasson et al. v. Tass6 et al., 233, 269. Massu V. Crebassa, 121, 122,208,250. Massue et al., Swinburne v., 59. IMathews, Moreau v., 18, 73. Mathews v. Senecal, 236, 282. Mathewson v. The Western, 156. Matte and Brown, 80. ^laxham, Dansereau and, 165. Maxham et al., Quebec Bank v., 251, 321. Maxham et al. v. Staflbrd, 38. Maxwell, Reg. v., 151. May, Berry and, 22, 49, 50, 55. Mayer v. Thompson et al., 153. Mayer et al. v. Scott, 289. Mayor, dec, of Montreal, Anderson et al. and, 162. c Mayor, ^c, of Montreal, Beaudry and, 126. Mayor, &c., of Montreal, Belanger v., Mayor, ration of Montreal, 37. O'Connor, Von v., 208. O'Donahue, Campbell and, 135. O'Donovan, Muri»hy v., 110, 208. O'Farrell, .Smith et al. v., 136, 232. O'llara, Barber et al. v., 137. O'lleir, Malo v., 243. Oliva, Boissonnault and, 267, 295. Oliva, Fournier v., 295. Oliver, McBlain and, 210. Oliver, Valleau v., 89. Olsen V. Forstersen, 234. O'Meara v. McCleverty 3. O'Neil and Atwater, 219. O'Neil et al.. Cannon v., 7, 219. O'Neill, Lewis v., 338. Ontario Bank, The, Perrault et al. and, 2, 344, Orkney, Ensor and, 148. Orkney et al., Ritchie v., 64. Orr, Dewar v., 3. Orr and Fisher, 262. Orr V. H6bert, 314. Orvis V. Voligny, 92. Osgood and Cullen, 24. * Osgood and Kellam, 219. Osprey, The, 77. Ostell, Bridgman and, 78. Ostell, Joseph v., 28, 29, (note 38.) Ostell V. O'Brien, 230. Ostell, Ryland v., 296. O'Sullivan v. Murphy, 228, 257. Ouellet V. Fournier, 281. Ouellet, Fariseau v., 39. Ouimet v. McCallum and Clarke, 135. Onimet et al. v. Papin, 84. TABLE OF CASES. SIXVII Ouiinet et al. and Senecal et al., 115, 164. Oweus V. Diibue, 30, 231, 338. 10, racniul V. Bourdnges, 32. raenud v. Dub6, 233, 282. Pacaud v. The Monarch, 155. rncaiul et nl., Senecal v., 165. Pacaud, Syndics of Parish of St. Nor- bert v., 63. Pncaud, Talbot v., 254. Page V. Carpeutier, 224>. Page et nl., Cll-ment v., 320. Pag6, Hnot v., 163. Pngnuelo, Fabriijue de Vaudreuil v., 338. Pagnuelo, Prowse v., 221. Paige et al., Jackson v., 211, 280. Paige, Murphy v., 211. Paige V. Savnrd, 123. Pain, Paterson et al. and, 39, Paliscr v. Roy, 124-. Palliser, Reg. v., 88. Palmer v. Lapens6e, 123. Palsgrave, Ross and, 152, 163. Palsgrave v. Senecal et al., 136. Panet et al., Blake et al. and, 298. Panet et al. v. Lorin et al., 139. Panet v. Lnrue, 142. Pangman v. Bricault, 290. Papans, Turcotte v., 204, 243, 262, 344. Pdpin, Beaudry and, 169, 200, 300. Papin, Lynch v., 63, 85, 127, 263. Pupin, Ouimet et al. v., 84. Papin eau. The, 192, 259. Papineau, B61anger and, 300. Paquet v. Gaspard, 17, 329. Paquet and Globenski, 219. Paquet, Jackson et al. and, 256. Paquet et al. v. Miclette, 134. Paquet 4i al. and Robitaille et al., 198. Paquet et al., Scott and, 188. Paquette v. Limoges et vir., 189. Paradis v. Alain, 9, 282. Paradis, Exp., 287. Paradis v. Lam6re, 195. Parant et al., Demers and, 1 12, 332. Parant, Welling v., 1 14, 152. Par6, Delard v., lo9, 243. Par6 and Derousselle, 314. Parent, Douglass v., 279. Parent v. Grenier, 299. Parent et al. Huot v., 14, 239. Pariseau v. Ouellet, 39. Pariseau, Wilson v., 135,208,291,305. Park, Anderson v., 88, 248. Park, Grainger et al. and, 125. Parke, Russell v., 217. Parker v. Cochrane, 134. Parsons et al. v. Kelly, 201. Paterson v. Davidson, 59. Pntoraon, Emerick v., 159. Paterson et al. v. McCullum et al., 140. Paterson et al. v. Pain, 39. Patersons et al. v. Pcrci'vul, 91. Patfz et al. v. Klein, 328. Patun, Cusack et al. v., 122, Pattenaude and Lerige, 14*^. Patenaude, Th6borgc v., 153, 222. Paterson v. Hart, .53,232. Patterson, The Seminary ol (.Quebec v., 242. Patton, Blac'kiston v., 136. Patton and Buchanan, 141. Patton, Ferguson v., IGS. Patton v. Fouriiier, 290. Patton, Macfarlane v., 203. Patton, Reg. v., 267. Paxton et al., Shuter et. al. v., 45. Payant,Comr. of Indian liands v., 151. Payette, DeslDngchamp et a), v., 175. Pearce v. The Mayor, iVc, of Montreal, 175. Pearce et al., McGillis etui, v., 23. Peck and Harris, 1 99. Peck, Lyman et al. v., 200. Peck et al. v. Murphy, 215. Peddie v. The Quebec Fire Ins. Co., 159. Peel et al., Adams v., 177. Pelerin, Leblanc and, 62. Pelletier v. Commissnires d'Ecole d« Ste. Philom6ne,28S. Pelletier, DaliHj v., 245. Pelletier v. Freer, 54. Pelletier v, Lajoie, 41. Pelletier v. Michaud, 143. Pelletier, Reg. v., 120. Pelletier, Tessier v., 53. Pelletier, Tetu v., 51. Pelly, Kerry v., 85. Peloquin, Benoit v., 215. Peloquin, Crebassa et al. v., 339. Peltier v. Laricheliere, 174. Pemberton etal. The City Bank v., 294. Pemberton et al. v. Deniors, 117. Pemberton, Principal Officers of Art. and, 261. Pentland et al. and Drolet, 21. People's Bdg. So. v. Evans, 211. People's Bdg. So., Sol. Genl. v., 146. 1 ^' ^1 1 H'« m I \'^^ n XIXVIII TABLE OF CASES, l! S^i I i III Pepin V. Christin, 5. Pepin V. Milne, 77. Pepin, Thomas v., 77. Perceval, Gillespie v., 90. Perceval v. The Harrower, 259. Perceval, Pattersons et al. v., 91, 315 Perceval, Rice v., 129, 202. Perkins, Kinney and, 269. 292. Perkins v. Leelaire, 96. Perkins, Lyman et al. v., 228. Perkins, 8ymes v., 75. Perras v. Beandin, 134, 205. Perrault v, Arcand, 282. Pcrranlt et al. v. Bacquet 239. Perranlt et al., Borne v., 58. Perranlt v. Brochn, 199. Perranlt Desantels v., 205. Perrault v. Ueseve, 50. Perrault, Glackemeyer et al. and, 241 Perrault, Lacroix v., 127. Perrault, Lorangor v., 171. Perrault v. INIalo, 226, 243. Perrault et al. and The Ontario Bank, 2, 344. Perrault and Siniard et al., 151, 196. Perrigo and Hibbard, 70. Perrin, Marion and, 105. Perrin, Robertson et al. v., 108, Perry, Carsant v., 2&2, Perry, Les Dames Religieuses de Que- bec, v., 227. Perry and (rugy, 102, Perry v. Milne, 77, 151, 153, 251, 310. Perry, Muir v,, 177. Perry v. St. Lawrence Grain Eleva- ting and Floating Storage Com- pany, 2S8. Perry, Wilson, v., 114. Petit V. Bechettp, 194. Petit V, Lucas, 77, Petitclerc, Reg. v., 143. Philbin, Millsv.,247. Philbin, Miissen v., 150. Philbin, Torrance v„ 160, 241. Phillips V. Anderson, 151. Phillipps V. Hart et al,, 152, 229. Phillips V. Sanborn, 248,299. Phoebe, The, 11, 163, 166, 194, 210, 217,265,315,323, Plupnix Assurance Company, Scott v,, 29, 154. Picault V. Demers, 10, 242. rich6 and Piche, Larochelle v., 216. Pichette et al., Gaulin et ux. v., 245, 282. Pierce, Willis et al. v., 72. Pigeon V. The Mayor, &:c., of Montreal 95, 238. Pilon, Thurber v., 35. Pilot, The, 328. Pilot, Boissean v., 298. Pinet et al,, Cadietix, and 43, 147. Pinsonnanlt, Dendurand et ux. v., 94. Pinsonnault and Dub6,282, Pinsonneaul*; v, Henderson, 31. Pinsonneault v. Maillonx, 276. Pinsonneault v, Ramsay, 31. Pirrie v, McHugh et al., 171,226. Pitt V. Lucas, 77, Plamondon v, Fanjuhar, 218. Plamondon, Greenshiolds v., 36, 342. Plamondon et al, v. Sauvagean, 253. Plante, Exp,, 137. Plante, Grant v,, 201, .333. Plaiito, Lavoie v., 133. Pliift and Charpentier, 305. Piatt v. Kerry, et al., 172. Piatt etal. v." Piatt et al., 221. Plenderleath, Hamilton v., 339. Plendorleath v. McGillivray, 5, 264. Plingue-t, Beaudry v., 214, (note 215.) Poliquin v. Belloan, 141. Pollock and Bradbury, 71,319. Pollock, (rordon et al. v., 44, Pollock et al., Lanriii v., 116. Poole, Lynch v,, 73, 19J. Poirier, Februyer v., 276. Poirier v. Lacroix, 106, 160, 203. Poirier v. Tass6 et al., 9. Poisson, Rivet v., 221. Pominville, DcChantal v., 160. Porter v, Ferrier, (note 224.) Porter, Hoffnung and, 22, 161. Porter et al., Sonauer et al. v., 177. Poston et al, v. Hall et al., 165. Poston et al. v. Thompson, 276. Pothier, Viger v., 138, 334. Potter, Nye v., 133. Poulin, Frasor et ux, v., 144. Poulin v, Langlois, 200. Pouliot, Corrivoau v., 172. Pouliot V, Lavorgne, 145. Poutr6, Boudreau et al. v,, 206. Poiitr6 and Chapdelaine,20. Poutre v, Laviolette, 136, Poutre V. Poulr6, 179. Power V. Bezeau, 109, Power, Mondelet v,, 278. Powers V. Whitney, 288. Pozer V. Clapham, 121. Pozer V. Green, 246. Pozer, McCallum v., 294. TABLE OF CASES. XLI 177. 1 S— i H Robert v. Danis, 102, 180. Robert et al., v. Dorion et al., 100, (note 100.) Robert et nl., Exp., and Viger et al., 60. Robertaon, Andrews and, 309. Robertson et al. v. Attwell, 271, 27*. Robertson, Exp., Poliock et al., 216. Robertson et al. v. Ferguson, S79. Robertson v. .Tones, 262. Robertson, Leeming v., 226, Robertson et al. v. Perrin and Perrin, 108. Robertson, yauvageau v., 37, 263. Robertson v. Stuart, 7. Robertson, Tunstall v., 131. Robillard, Iliggins et al. v., 136. Robinson, Exp., 257. Robinson v. McCormick, 269, 292. Robinson, Reg. v., 88. Robinson v. Robitaille, 184<. Robinson, Ryan et al. v., 311. Robitaille, Galarneau et al., 231. Robitaille et al., Paquet et al. and, 198. Robitaille, Robinson v., 184. Robitaille, Rentier v., ll-l", 152. Robson V. Hooker et al., .58. Roche V. Fraser et al., 330. Rocheleau, Exp., 268. RochoJeau v. The St. Lawrence and Atlantic Railway Co., 254. Rochon, Dalpe v., 93. Rochon et ux. v. Duch. Roy et al. v. Turcotte, 36. Royal Institutioi) , The, v. Des Rividres, 7, 82, 100, 182, 225, 237, 333. Royal Middy, Davidson, 284. Royal William, The, 166, 179, 284, 323. Royston, Elwin v., 236. Rudolph V. Harbour Commissioners of Montreal, 4-7. Ruel V. Henry et al., 99. Ruiter, Monty v., 227, 339. Russell, Chiimplain and St. Lawrence Railroad Company v., 293. Russell et al. v. Field, 180, 228. Russell and Fisher, 13, 180, 212. Russell, Fournier and, 124, 133, 189, 205, 206, 209. Russell et al. and Gravely, 20. Russell V. Jenkins, 262. Russell and Levey, 92. Russell v. Parke, 217. Russell, Union Building Society v., 88, 196. Ruston and Blanchard, 257. Ruston, Exp., 76. Ruston, Withall v., 248. Rutherford, Macfarlane v., 240. Rutherford, McKay v., 112, 113. Ryan et al.. Attorney General v., 201. Ryan, Benson v., 226. Ryan, Dubois and, 164. Ryan et al., Elliott et al. and, 157. Ryan and Halpin, 2, 152, 204. Ryan et al. v. Hunt et al., 74. Ryan and Idler, 164, 320. Ryan et al. and Malo, 249, 251. Ryan v. Minoque, 195. Ryan et al. and Montreal and Cham- plain Railroad Company, 44. Ryan et al. v. Robin.son, 311. Ryan, Veillcux v., 337. Ryan and Ward et al., (note 38,) 85, 102. Ryan et al. v. Woods et al., 297. Ryland, Gary v., 190. Ryland v. Gingras, 178. Ryland v. Ostell, 296. Sabourin, Howard v., 249. Saindoux, Bertrand v. and Lavoie, 189. Saint Lawrence and Ottawa Railroad Co. v. Frothingham et al.,220, 225. Saltry, Exp., 61. Samuel v. Edmonstone et al.,44. Samson v. Bolduc, 261. Sanborn, Phillips and, 248, 299, Sanche et al. v. Longpr6, 75. Sanders, Dalton v., 265. Sanderson v. Roy, 124. Sanguinet et al. v. Lecuyer, 84. Sansum, Tremain v., 53. Sarah, The, 37, 94, 102, 234, 304. Sarah Anne, The, 65, 68, 91, 116, 324, 325. Sarault and Ellice, 227. Sarony v. Bell, 17. Saucier, Verbois v., 139. Saucisse et al. v. Hart, 95. Saumur, Jones v., 1, 275. Saurin, The City Bank v., 223. Sauriole, Crevier v., 241. Sauvageau v. La Compagnie de Pi.iclie- iieu, 69. Sauvageau, Plamondon et al. v., 253. Sauvageau v. Robertson et al., 37, 263. Sauvette v. Scott, 90. Suuvard, Paige v., 123. Savard v. Vallee, 118. Scaife et al., Allen v., 133. Scholefield et al. v. Roddcn et al ; 124, 137, 205, 258. School Commissioners for Municipality of Barnslon, Adams v., 287. School Commissioners of Chambly, The,v. Hickey, 4. School Com. Laprairie, Browne v., 286. School Commissioners of St. Michel v. Bastien, 286. School Commissioners of St. Pierre de Sorel v. School Commissioners of William Henry, 287, 293. School Commissioners of S'audreuil., The, v. Bastien, 4. School Commissioners of William Henry, School Commissioners of St. Pierre dc Sorel v., 287, 293. Scotia, The, 77, 106, 169, 187,210,214, 284, 323. Scott et al. V. Austin, 289. Scott, Ferguson et al. v., 182. Scott et al., ILirtsliorne et al. v., 223. Scott V. Hescrofl', 99. Scott, Hogan et al. v., 238. Scott, Lepailleur v., 41. Scott V. Lindsay, 253. Scott, Maguire and, 13, 127, 212. Scott, Mayer et al. v., 289. Scott and Paquet et al., 188. TABLE OF CASES. XXXIX Pozer V. Meiklejohn, 70, 113. Trefontaine, Exp., 61. Prefontaine and Prevost et al., 274. Premier, The, 179,217. Prevost and Allaire, 285. Prevost et al. v. Breux, 191. Prevost et al., Bruneau and, 24. Prevost v. Delesderniers, 103, 270. Prevost v. Leroux, 74. Prevost et al., Prefontaine and, 274. Provost, Reid and, 173. Price, The Attorney General v., 96. Price V. Nelson, 141, 149. Price V. Perceval, 129, 202. Price v. Wilkinson et al., 296. Price, Wnrtele v., 273. Prieiir et al., Boyer et al. v., 281. Prieur, Lacroix v., 115. Primean and ScEursde Charity, 182. Prince Edward, The, 329. Prince, Scott et al. v., 78. Principal Officers of Artillery, Grant and, 181. Principal Officers of Artillery and Pem- berton, 261. Principal Officers of H. M. Ordnance, Laporte and The, 242. Principal Officers of H. M. Ordnance and Taylor et al., 10, 287. H. M. Principal Secretary of State for War Department v. Edmonatone, 169. rriv6, Dansereau et al. v., 45. Proctor, Beaudet and, 21. Pronlx, Beaudry and, 161, 319. Proulx, Dub6 v., 224. Proulx V. Proulx, 152. Provencher et al., Fisher v., 19. Prowse V. Pagnuelo, 221. Purington v. Higgins, 237. Pyke et al., McTavish and, 189. Qnatrepattes, The Queen v., 263. Quebec Bank v. Maxham et al., 251, 321. Quebec Bank, The, v. Molson, 74. Quebec Board of Trade, Reg. v., 88. Quebec Building So. v. Atknis et al., 206. Quebec Building So. v. Jones, 11, 87. Quebec Exchange, The Quebec Semi- nary T. The, 290. Quebec, The, Alleyn v., 154. Quebec Fire Assurance Company and Anderson et al.,25. Quebec Fire Ass. Co., Fournier v., 86, 216. Quebec Fire Ins. Co. v. Molson et al., 115, 158. Quebec, The, Dill v., 155, 200. Quebec Fire Assurance Company, Keys v., 47. Quebec Fire Ins. Co., Peddie v., 159.- Quebec Fire Ins. Co., Scott v., 154. Quebec and llichinond Railroad Co. v. Dawson, 228. Quebec and Richmond Railroad Co. v. Quinn,29. Quebec Seminary v. The Quebec Exchange, 290. Quentin dit Dubois and Boston, 297. Quesnel v. Donegani, 111. Quesnel, Donegani and, 23. Quig, De Lery v., 131. Quinn v. Atcheson, 50, 51, 314. Quinn, The Corporation of St. Jerusa- lem v., 83. Quinn, The Equitable and, 159. Quinn, McDonald and, 198. Quinn, Malonoy and, 129. Quinn, The Quebec and Richmond Railway Co. v., 29. Quinn, Ross v., 239. Quintal, Croteau v., 295. Quintal, Cnniniings and, 283. Quintal v. Novion, 175, 182. Quintin et al. v. (iirard et ux., (note 100.) 174, 33.5. Racine v. The Equitable Insurance Company, 1.54. Rainsford et al. v. Clarke et al., 174. Ramsay, Cazclais and, 143. Ramsay v. David, 38. Ramsay v. (Juilmetlre, 182. Ramsay v. Hitchins, 103, 270. Ramsay v. Judah et al., 72. Ramsay, Pinsoniieault v., 31. Ranger v. Chevalier et al., 220. Rapin et al., Chaurette v., 307. Rasc'o V. Desriviere.s, 292. Rassette v. Dalrymple, 207. Ratelle et al., Mireuu v., 128. Ravary et al. v. The Grand Trunk Railway Company, 95, 255. Raymond v. Walker, 55. Ray, Wilson v., 51. Read v. Birks, 78. Ptead and Lefebvre, 92. Recovery, Tlie, 186, 326. Redpat-h v. Blackinun el ul., 76. Redpulh et al. v. xMcDuiigull, 306. ^, ] '^: I :{ ■■I Zo XL TABLE OF CASES. 'i ^! nil m h :! i AM i !! Reed, Hughes v., 182, 237, 282. Reeves, Bouvier and, 24. Refienstein, Canadian Inland Steam Navigation Company v,, 253. Refour V. Senecal, lO*. Regina v. Baird, 266. Regina v. Barbeau et al., 61. Regina v. Beaiilieu, 40. Regina, Belleau and, 95, 171, 229. Regina v. BeruW, 120. Regina and Black, 160. Regina and Bois, ~61. Regina and Bruce, 201, 204. Regina v. Carroll, 88. Regina, Chandler et al. and, 162. Regina v. Comt6 et al., 144, 145, 146. Regina v. Corporation of Sheflford, 198. Regina v. Creamer, 13, 88. Regina v. Croteau, 40. Regina v. Darling, 220. Regina v. Doherty, 182. Regina v. La Fabrique de la Pointe aux Trembles, 184. Regina v. Funeuf, 31. Regina v. Holt et al., 131. Regina v. Hughson et al., 151. Regina, Lavoie and, 148. Rpgina v. Laviolette et al., 38. Regina v. Mc(iinnis, 195. Regina v. McPherson et al., 45. Regina v. McQuiggan, 43. Regina v. Martin, 151. Regina V. Maxwell, 151. Regina v. Municipality of Sheffbrd, 198. Regina v. Municipality of Two Mouur tains, 198. Regina v. Palliser, 88. Regina v. Patton, 267. Regina v. People's Building So., 146. Regina v. Peltier, 120. Regina v. Petitclerc, 143. Regina v. Price and McGill, 96. Regina v. Qnatrepattes, 263. Regina v. Quebec Board of Trade, 88. Regina v. Robinson, 88. Regina v. Ryan et a!., 201. Regina, Exp., Spiers and, 159. Regina v. St. Louis et al., 129. Reginn v. Two casks of planes and Darling, 220. Regina v. Webster, 88. Regina v. White et al., 42. Regina v. Yule et al., 8^^. Reid and La Fubrique de Chateauguay, 217. Reid and Prevost, 173. Reid, Rodgerson et al. and, 179. Reid, Wilson v., 51. Reipert, Mead v., 195. Renaud and Gugy, 112, 164, 259. Renaud, Guillet dit Tourangeau and, 245, 336. Renaud, Lenfesty v., 146, Renaud, Marchand v., 77, 101. Renaud et al., Molson and, 32. Reni^re and Milette, 63. Renkin and Foley, 71. Renouf, Exp., 185. Reuger, Rolland v., 41. Renter et al., Molson et al. v., 230. de Repentigny v. Doherty, 164. Reynolds and Durnford, 82. Rex v. Black, 237. Rex, Caldwell and, 333. Rex v. Gingras, 60. Rex, MeJklejohn v., and Caldwell, 334. Rex, Spratt v., 260. Reynolds and Durnford, 82. Rheaume, Corporation Comte d'Ya- maska and, 197. Rheaume and Fortier, 23. Ricard v. Leduc, 105. Rice et al. and Ahcrn, 1.50, 160. Rice V. Bowker et al., 247. Rice V. Coo, 27. Richard v. The Champlain and St. Lawrence Ptailroad, 223. Richard, Delisle v., 107. Richard and Denison, 77. Richard V. La Fabrique de Quebec, 217. Richards v. Ritchie et al., 84. Richardson, Desrivi^res v., 82, 182. Richardson v. Molson, 272, 286. Richelieu Co., Fry and The, 117, 331. Richelieu, Cie. de, Sauvageau v., 69. Richer, Boudreau v., 85. Richer v. Mongeau, 165. Riches, Moreau v., 117. Rickaby v. Sutliffe, 43. Ricker et al., Waggoner and, 24. Rigney et al.. Bell v., 236, 313. Rimraer v. Bouchard et al., 300. Rioux, Exp., 184. Ritchie and Joly, 177. Ritchie v. Orkney et al., 64. Ritchie et al., Richards v., 84. Rivers v. Duncan, 99, 169. Rivet et al., Dorion et al. v., 148, 295. Rivet V. Poisson, 221. Robert and Anne, The, 187, 285. Robert, Bruneau v., 134. TABLE OF CASES. XLIII •I Scott V. PhoDiiix Assurance Company, 22, 29, 154. Scott et al. V. Prince, 78. Scott V. Quebec Fire Ins. Co., 154. Scott, Roy v., 309. Scott, Sauvette v., 90. Scott et al. V. Scott et al., 20, 111. Scott et al., Stuart and, 19,239. Scott, Row bottom v., 44, 60. Scott, Ross and 20, 269. Sculthorpe, Day and, 251. Seaver et al. v. Nye, 75. Secretan v. Foote et al., 169. Seed, Bonacina and, 312. Seed r. Courtney, 248. Seers et al., Montreal and Lachine Railroad Company and, 148. S^minaire de Montreal, Fleming v., 261. S6rainaire de Qu6bec v. Maguire, 281. Serainaire de Qu6bec v. Labelle, 181. Sfeminaire deQu6bec v. Patterson, 242. S6minaire de Quebec v. Vinet, 161. Senauer et al. v. Porter et al., 177. Senecal and Beauregard, 127. Senecal and Chenevert, 105, 165, 212. Senecal et al., Hobbs v., 58. Senecal and Labelle, 124, 291. Senecal, Mathews v., 282. Senecal v. Mills et al., 279. Senecal, McCarthy, v. 139. Senecal et al., Ouimet et al. v., 10, 115, 164. Senecal v. Pacaud et al., 165. Senecal, Palsgrave v., 136. Senecal, Refour v,, 104. Senecal, Taylor v., 338. Sewell, Chabot et al. v., 131. Sexton V. Boston, 89, 337. Seymour, Freligh and, 124, 173, 334. Seymour et al., Hobbs v., 41, 151. Seymour v. Horner et al., 151, 152, 153. Seymour, McDonald v., 104, 248, 293. Seymour v. St. Julien, 232. Seymour v. Woodbury, 14. Seymour et al. v. Wright et al., 13, 248, 249. Sharing and Meunier, 10, 33. Sharpley, Blanckensee v., 22, 53, 55. Shaw et al., Bullitt et al. v., 252. Shaw et a', v. Cooper, 258. Shaw, Harwood v., 313. Shaw, Hood et al. v., 252, 313. Shaw and Jeffry, 134, 162. Shaw et al., Leduc and, 284. Shaw V. Lefurgy, 141. Shaw et al., Leslie et al. v., 83. Shaw et al. and Meiklehnm, 321, Shaw V. McConnell, 3, 272. Shaw et al. v. Sykes, 260. Shaw, Wood et al. v., 246. Shearer v. Compain et al., 189,247. Shelton v. Kerns et al., 136. Shepherd, Campbell v., 100. Shepherd, McClure v., 296. Sheppard, Gibb and, 143. Shepstone et al., Burry et al. v., 213. Short, Slack and, 45. Shrapnell, Kelly v., 176. Shuter v. Guyon dit Lemoine,231. Shuter et al. v. Paxton et al.,45. Sillery, The, 285, 338. Simard v. .Tenkins, 167. Simard, Kay and, 104. Simard et al., Perrault and, 152, 196. Simard and Townsend, 20, 26, 167. Simard v. Tuttle, 167, 202. Simoneau et al., Blais and, 295. Simpson et al., Bank of Montreal v., 318. Simpson, Burroughs and, 21. Simpson et al. v. Delisle, 318. Simpson, McKay v., 21. Simpson, McKercher and, 27. Sims et al. v. Evans, 142. Sinclair v. Ferguson, 96, 276, 280. Sinclair v. Leeming, 39. Sinjohn v. Ross, 240. Sirois v. Michaud, 105. Skinner, Herald v., 56. Slack, Exp., 81. Slack and Short, 45. Sleeth, Stuart and, 191. Slown et al., Boyer v., 123. Smart et al., Beaudry v., 201. Smith et al., Brown et al. v., 28, 140, 149. Smith et al., Cummings et al. v., 10, 33, 34. Smith v. Egan et al., 25. Smith, Evans v., 211. Smith V. Fisher et al., 262. Smith V. Irvine, 168. Smith, Kennedy et al. and, 128. Smith, Lainpson v., A-9, 51, 191. Smith V. Merrill, 223. Smith, Murrin et al. v., 261. Smith, Miller v., 6. Smith et al. v. O'Farrell and Coleman, 136, 232. Smith, Sullivan and, 202. Smith V. Terrill, 147. J 1 ■ :'l '" 2^ XLIV TABLE OF CASES. P *i ! ii ill! ! ,ii 1 1 1 Smith V. Wright, 329. Snell, Miller v., 13. Soci6t6 de Construction Canadienne v. Lafrenaye, 102. Soci6t6 de Construction Canadienne v. Lamontague, 102, 280. Sceurs de Charity de I'Hdpital G^n^ral and Primeau, 182. ScEurs de St. Joseph de l'H6tel-Dieu, Crathern et al. v., 176. Somers v. Athenseum Insurance Co., 117, 157,220,229. Sophia, The, 40, 116, 187, 192, 217, 258, 259. Soucy, Dionne v., 141. Souligny v. Vezina, 196. Soupras v. Boudreau, 206. Soupras v. The Mutual Fire Assurance Company, 155. Spalding v. Haskill, 10. Spiers and the Attorney General, 159. Sponza, Levey and, 86. Spragg et al., Gillespie v., 38, 195, 263. Spratt, Exp., 259. Spratt V. Rex, 260. Stafford, Maxhani et al. v., o8. St. Amand et al. v. Bourrett et al., 189. Stansfield, Langlands v., 260. Stanstead, Shefford and Chambly Rail- way Company, The Montreal Fire Insurance Company v., 246. Starnes, Cockburn v., 296. Starnes et al., Fleck v., 121. Starnes v. Kinnear et al., 201. State, The, Ins. Co., Wilson v., 157, 159, 169. St. Aubin v. Fortin, 203. St. Denis v. Grenier et al., 336. Stephens, Ireland v., 103. Stephens et al., Tidmarsh v., 38, 60, 222, 228, 230, 232, 234. Stephens et al. v. Watson et al., 227. Sternberg et al. v. Dresser et al., 311. Stevenson et al. v. Bissett, 162, 248. Stevenson et al. v. Boston et al., 298. Stevenson v. Gugy, (note 150.) Stevenson, Laurent v., 240. Stevenson v. Wilson, 94. Stewart v. Hamel, 258. Stewart v. McEdward, 114. St. Hilaire, Denis v., 86. Stiguy V. Stiguy et al., 84, 102. Stimpson, British Am. Land Co. v., 279. Stirling et al. v. Darling, 208, 297. Stirling v. Dow et al., 288. Stirling, Fowler v., 44. St. John V. Delisle, 35, 230. St. Julien, Seymour v., 232. St. Laurent, Frechette v., 137. St. Lawrence' and Atlantic Railway Company, Lennan and, 138. St. Lawrence and Atlantic Railway Company, Rocheleau v., 254. St. Lawrence and Ottawa Railway Company v. Frothingham, 220, 225. St. Lawrence Inland Marine Ins. Co., McPherson v., 293. St. Lawrence Storage Company, Perry v., 288. St. Louis, Exp., 184, 198. St. Louis et al., Faribault and, 263. St. Louis dit Lalampe, McGibbon v., 292. St. Louis et al., The Queen and, 129. St. Louis and St. Louis, 26, 267. Stoddart v. Lefebvre, 118, 242, 344. Strother v. Torrance, 125, 241. Stuart and Blair, 242. Stuart V. Bowman, 8, 108, 110, 243, 312. Stuart V. Eaton, 138, 150. Stuart, Howard v., 75, 212, 213. Stuart and Ives, 236, 312. Stuart v. Langley et al., 236. Stuart, Lauzon v., 101, 112. Stuart, Lawrence and, 150. Stuart, Robertson v., 7. Stuart and Scott et al. v., 19, 239. Stuart and Sleeth, 191. Stuart and Tr6pannier, 253. Sullivan and Smith, 202. Sun Mutual, The, and Masson et al., 186. Supervisor of Cullers v. Gagnon, 88. Supple and Kennedy, 119, 337. Surprenant et al., Dupuy v., 3. Surprenant v. Surprenant et al., 10. Sutherland, Adams v., 288. Sutherland, Symes v., 211. Sutliffe, Rickaby v., 43. Suzor, Lafontaine v., 319. Swanson v. Defoy, 175. Sweet, Exp., 166, 335. Sweet, Gould and, 22, 23. Sweetapple v. Gwilt, 72, 291. Swinburne v. Massue et al., 59. Sykes, Shaw et al . v., 260. Sylvain, Bilodeau v., 191. Sylvain, Methot et al. v., 141. Syme et al. v. Heward, 46, 222. TABLE OF CASES. XLV 1. Railway 138. Railway 254. Railway am, 220, I Ins. Co., my, Perry d, 263. ribbon v., md, 129. 267. t2, 344. l. no, 243, 13. 239. son et al., ion, 88. 7. 3. il., 10. )9. 12. Syme et al. v. Janes et al., 58, 193. Symes and Lampson, 299. Symes v. McDonald, 149. Symes v. Perkins, 75. Symes v. Sutherland, 211. Syndics Martigny Estate, Archambault and, 107. Syndics de Lachine v. Fallon, 268. Syndics de Lachine v. Laflamme, 263. Syndics of Parish of St. Norbert v. Pacand,63. Tabb, McKenna v., 28. Talbot V. Donnelly, 49. Talbot, Exp., 61. Talbot, Fuchs v., 189, Talbot V. Lunean, 163, 306. Talbot, Montizambert and, 260. Talbot V. Pacaud, 254. Talon V. Cloiitier, 219. Talon, Lamothe et al. v., 105, 181, 208. Taillefer v. Belanger, 185. Taillefer et al. v. Taillefer et al., 114, 152. Tanguay, Benoit and, 108. Tarr et al. v. Desjardins, 325. Tascherean, Corp. of Col. of Ste. Anne v., 239. Tascherean v. Delagorgendi6re, 40. Tass6 et al., Masson et al. v., 233. Tasse et al., Poirier v., 9. Tate et al., Guilfoyle v., 123. Tate et al. v. Janes et al., 28, 164. Tate, Malone and, 119,337. Tate et al. v. McNevin, 215. Tate et al. v. Torrance, 232. Tator et al. v. McDonald, 213. Tavernier v. Bonneville, 177. Tavernier v. Lamontagne, 199. Taylor v. Arthur et al., 116. Taylor, Bank of B. N. America v., 222, 232. Taylor, Boston and, 37. Taylor, Corse v., 208. Taylor, Cumming v., 4, 5. Taylor, Dease and, 22. Taylor et al., Lampson v., 240, 242. Taylor, Lee v., 274. Taylor, Mackenzie v., 244. Taylor et al., The Principal Office .« of H. M. Ordnance and, 10, 287. Taylor v. Senecal, 338. Taylor, Woodington r., 78. Tellier, Cuthbert v., 312. Terriault, Dickey and, 330. Terrien, Exp., 62. Terrill, Smith v., 147. Tessier v. Falardeau, 148. Tessier v. Pelletier, 53. Tessier v. Tessier, 89. T^^tu et al. V. Fairchilds, 280. 'J'6tu et al. and Glackemeyer, 148. T6tu V. Martin, 41, 146. T6tu et al., McKcnzie v., 199. T6tu V. Pelletier, 51. T6treau, Marteau v., 331. Thayer, Maclarlane v., 45, 46. Th6berge, Brock et al. v., 223. Theberge v. Hunt, 176. Th6berge v. Pattenaude, 153, 222. Theberge v. Vilbon, 104, 239. Thetis, The, 186, 235, 244, 258. Thibaudeau, Holland v., 100 (note 100,) 243. Thibaudeau and Lee, 287. Thibaudeau v. Mangan, 1.%. Thibeault v. Dupr6 et al., 147. Thibodeau, Beaudry v., 167. Thomas v. Pepin and Pepin, 77. Thomas, David and, 277. Thomas et al. v. The Times and Beacon, 158. Thomas, Torrance et al. v., 280. Thompson and Bellemare, 82. Thompson, Boston et al. v., 280. Thompson, Casson v., 150. Thompson, Exp., 81. Thompson et al., Fawcett et al. and, 168, 196.236,282. Thompson, f errie and, 221. Thompson Hall and, 178. Thompsci and Martel, 208. Thompson et al., Mayer v., 153. Thompson v. McLeod, 241. Thompson, Poston et al. v., 276. Thoin, Chalifoux v., 194. Thorn v. McLennan et al., 19, 102. Thouin and Leblanc et al., 210, 260. Thurber v. Pilon, 35. Thurber v. Des6ve, 248. Tidmarsh v. Stephens et al., 37, 60, 222, 228, 230, 232, 234. Tiers et al. v. Trigg et al., 288. Tilstone et al. and Gibb et al., 200, 201. Times and Beacon, Thomas et al. v., 158. Titus, Cherrier and, 131. Tobin V. Miurison, 320. Todd et al.. Grey v., 9, 97, 282. Tomkins, Mahoney et al. v., 289. ;t, I ^:ii^:'t , f 2^ XLTI TABLE OF CASES. ^'^W 1B| :!i:li 11 !' i Toronto, The, 11, 30, 95, 116, 166, 214, 323. Torrance et al. v, Allan, 57, 34<4. Torrance and Bouthillier, 91. Torrance v. Chapman ei al., 34, 184, 230. Torrance et al., Gkiherty v., 57, 92. Torrance et al. v. Gilmoiir et al., 55. Torrance, Hoyle and, 240. Torrance, Macdougall v., 48, 52, 58, 59. Torrance v. Philbin, 160, 241. Torrance, Strother v., 125, 241, Torrance, Tate et al. v., 232. Torrance et al. v. Thomas, 280. Torrance et al., v. Torrance et al., 161. Tonrigny, Leduc v., 276, 280. Toussaiiit et al. v., Leblanc, 18, 107. Towsend, Simard and, 20, 26, 167. Tracy, Exp., 174. Tremain, Ninteau v,. 252. Tremain v. Sansum, 53. Tremblay v. Bouchard, 261. Tremblay and Champlain and St. Lawrence Railroad Company, 28. Tremblay and Noad et al., 275. Tremblay v. Tremblay, 27, 231. Tr6paniiier v. Diipuis, 7, 8. Tr6panier, Stuart and, 253. Trigg et al. v. Geoffroy, 312. Trigge et al. v. Lavall6e, 112, 313, Trobridge et al. v. Morange, 48, 53, 269. Trothier et al.. Hardy et al. v., 63. Truax v. Hunter, 289. Trndeau, Exp., 62. Trudeau v. de Laiiautlidre, 162, 202. Trudeau et al. v. Menard, 120, 162. Trudel, Langlois v., 290. Trudelle v. A Hard, 229. Trudelle v. Uoy, 4. Trust and Loan Company v. Doyle, 133, 222. Trust and Loan Company, Jarry and, The, 19, 132, 3+3. Trust and Loan Company v. Julien and May, 206. Trust and Loan Company and McKay, 153, 294. Trust and Loan Company v. Vade- boncoeur, 305. Trustees of The Dissentient School of St. Henri v. Young, 286. Trustees Montreal Turnpike Roads and Bernard, 196. ., ., Truteau, Labadie and, 140. Try and Roman Catholic Bishop of Montreal, 141. Tucker, Wrigley v.. Ill, 161. Tuft V. Irwin, 238. TuUock, Lefebvre v., 52. Tumbelty, Devlin v., 14. Tunstall v. Robertson, 131. Turcot, Exp., 184. Turcot, Leduc v., 213. Turcotte, Berthelot and, 73. Turcolte v. rap])ans et ux., 204, 243, 262, 344. Turcotte, Bouthillier v., 27, 71, 213. Turcotte, Roy et al. v., 36. Turenne, Mongeon et ux. v., 216. Turenne et al., Mongeau v., 231. Turgeon, Cowan v., 245. Turgeon v. Hogue, 127. Turgeon et al., Nesbitt etel, v., 221. TuriibuU et al., Levey v., 98. 'lurner v. Boyd, 215. Turner v. Lomas, 216. Turner et al. v. Whitfitdd, 150. Tuttle, Cockburn v., 296. Tuttle, Simard v., 167, 202. Tweed, The, 186. Tyre and Boisseau, 175. Union Building Society v. Russell, 83, 196. Union etal., Morris et al. v., 118. Unity Ins. Company v. Hickey etal., 128. Unwin, Morrill v., 236, 282. Vachon et al., Bernier v., 33. Vachon, Fisher et al. v., 176. Vadeboncoeur, Trust and Loan Co. v., 305. Valin V. La Corporation de Terre- bonne, 263. Valleau v. Oliver, 89. Vall6e V. Latouche, 84. Valine, Lefebvre v., 40. Vall6e, Savard v., 118, 216. Valli^res de St. Real., Exp., 60. Vallidres, Hart v., 78. Vallidres v. Valli^res, 17. Valois et al., Corporation of Point Claire and, «03. Vandal v. Grenier, 113. Vanier v. Falkner, 115. Vankoughnet v. Maitland, 311. Vannevar et al. v. Decourtenay, 40, Vannier et ux. v. Larche, 92. Verner. '6^ Viger v. TABLE OF CASES. xLvn Varin v. Cook et al., 79. Variina, The, 170, 187, 193,323, 325, 329. Vauglian v. Campbell, 133.. Veilleux v. Ryan, 337. Venner v. Barnard et al., 208. Veiiner v. Futvoye et al., 249. Venus, The, 170, 326. Verbois v. Saucier, 139. Verdon v. Groulx, 6, 106,312. Verner, Biirbier v., 166, 176. Veroneau, Ex\)., 62, Veronneau, Waters v., 126. Verrault, Wiirtele v., 216. Verret, Langlois et iil. v., 62. Vezina, Germain and, 19. Ve/ina, t^ouligny v., 196. Vian, Dumas v., 31. Vigor V. Reliveau, 13,24., 172, 176. Vigcr, Monk et al. v., li. Vigerv. Pothier, 138, 334-. Vigor ft al., Roljert et al. and, 60. Vilbon, Thebcrgc v., 104, 239. Villeiieuvc, Casey v., 226. Vincelette v. Fabrirjue de St, Atha- nnse, 184-. Vincent, Exp., 332. Vincent et al.. Moody v., 213. Vinet, Beaudry v., To. Vinet V. Gauvin, 24.0. Vinet, Seniinaire dc Qu6bec v., 161. Voligny, Orvis v., 92. Vondenvelden and Hart, 14.1. Von Exeter, Noad et al. v., 223. Voyer v. The Mayor, &c., of Montreal, 83. Wade V. Hussey and Hussey, 122, 307. Waggoner and Ricker et al., 24. Waldorf, Dorwin v., 138. Walker, Blackburn v., 216. Walker v. Burroughs, 205. Walker, Canada Lead Mine Co. v., 76, 212. Walker et al. and Ferns, 103, 233, Walker et al., McMaster and, 99. Walker et al., Raymond v., 55. Walker, Rostron et al. v., 77. Wall, Murphy et al. v., 262. Wallace v. Brown, 125, 126. Walmsley, Molson et al. and, 242. Walsh V. The Mayor, &c., of Montreal, 93, 160. Walton, Langlois v., 252. Ward et al. Ryan and, (note 38,) 85, 102. Wardens of the House of Industry, Ferrie and The, 83, 245. Wardle and Bethune, .'0, 344. Wardley et al., Dooley v., 3. Warner v. Blanchard, 310. Warner, Exp., 321, 330. Warner v. Fyson, 55. Warner v. Gerrard, 89. Warner v. Mernagh, 42. Warren v. Douglas, 136. Warren v. Henderson, 59. Warren v. Kay, 165, Warren et al. and Morgan, .52. Warren v. Noad, 93. Washington Irving, The, 326. Waters v. Veronneau, 126. Watson et al., Devoyau and, 45, 242, 335. Watson and The Mayor, dalus, 160, 301, 319. White V. Daly, 255. White V. Industry Village andRawdon Railroad Company, 255. Whitefield et al. v. Hamilton et al., 184. Whiteford, Blanchard and, 42. Whiteford, Macfarlane and, 310, 311. Whitfield, Turner et al. v., 150. Whitlock et al., Harwood et iix. and, 265. Whitby V. Rourke, 54. Whitney v. Badeaux, 232. Whitney v. Brewster, 1, 89. Whitney, Brooks and, 135, 307. Whitney v. Burke, 251. Whitney v. Clarke, 118. Whitney v. Craig, 244, 307. Whitney v. Dansereau, 79, 93. ^ ■'r i ' ■i 1 '. ' -LH- XJLVIII TABLE OF CASES. I Whitney v. Dinning et al., 27. "Whitney, Johnston v., 72, 169. Whitney, Powers v., 288. Whitty, Jonea v., 251. Whyddon, Beacon Fire and Life Assu- rance Company, 225. Whyte and Nye, 169. Wilcox et ux. V. Wilcox, 108. Wilkinson et al., Price v., 296. Willett, Ash cc al. v., 196. Willeys et al.. Mine et al. v., 70. Williams v. Arthur et al., 288. Williams et al., Forsyth et al. v., 173. Willis et al. v. Pierce, 72. Wilson and Atkinson, 141. Wilson, Bunkier v., 58. Wilson, Bell v., 178. Wilson, Benjamin et al. v., 50, 54-, 264. Wilson, Borne v., 216. Wilson V. Brown, 298. Wilson, Brush v., 24, 119, 124, 264. Wilson, Clarke et al. v., 131. Wilson, Duncan and, 140, 141. Wilson, Hogan and, 180. Wilson et a)., Holland and, 227. Wilson V. Kerr, 162. Wilson, Maun v., 195. Wilson V. Norris, 12. Wilson V. Morris and Ravaria, 84, 93. Wilson V. Pariseau, 135, 208, 291, 305. Wilson V. Perry and Porry, 114. Wilson V. Kay, 51. Wilson V. Keid, 51. Wilson V. The State Ins. Co., 157, 159, 169. Wilson, Stevenson v., 94. Wilson and Wilson, 73. Wing V. Wing, 240. Winscales, The, 329. Withall V. Ellis, 149. Withall V. Ruston et al., 248. Withall V. Young et al., 34, 313. Wood, Exp., 288. Wood and Gates et al., 274. Wood and Hearn, 199. Wood, Mayor, &c., of the City of Montreal and, 47. Wood V. McLennan, 89. Wood et al. v. Shaw, 246. Woodbury et al.. Garth v., 1 13, 1 15,003. Woodbury, JSeymour v., 14. Woodhouse and Exp. Hogue, 80. Woodington v. Taylor, 78. Woodman v. Letourneau, 103, 270. Woods et al., Ryan et al. v., 297. Woolley, Gagnon v., 289. Worden, Addams and, 163. Worden, Ballantyne et al. v., 77. Workman, Barrette and, 32. Worrall, Macfarlime v., 223. Wright, Ilagan and, 35. Wright, IluUet v., 174. Wright et al., Seymour et al. v., 13, 248, 249. Wright, Smith v., 329. Wrigley, Castle v., 339. Wrigley V. Tucker, 111, 161, 339. Wurtele v. Arcand, 320. Wurtele, Bagg et al. v., 35. Wurtele and Bishop of Quebec, 22. Wurtele, Exp., 63. Wurtele et at. v. Boswell, 35, Wurtele et al. v. Henry, 33. Wurtele, Lampson and, 21, 24. Wurtele, Malo v., 319. Wurtele et al. v. Montminy, 145. Wurtele v. Verrault, 216. Wurtele v. Price, 273. Wyman and Eadon, 185, Yon V. O'Connor, 208. Young et al.. Baker v., 97, 132. Young et al, v. Commissioners of Public Works, 29. Young, Jones et al. v., 90. Young V. Lemieux et al., 184. Young et al., Meiklejohn v., 27. Young et al., Withall v., 34, 313. Young, Trustees of the Dissentient School of St. Henri v., 286. Yule et al., Attorney General v., 83. Yule,* Browning v., 195. Zeigler v. McMahon, 278. * Note.— In one report written Gale, • It,; • s\ ABBREVIATIONS. de la Prevost^. C. 8. C. stands for Consolidated Statutes of Canada. C. S. L. C. « '« " " for Lower Canada. P. Pre. du Con. Sup. stands* lor Perrault's Pr^c^dents du Couseil Superieur. P. Pre. de la Prevost6 " " " ' P. R. stands for Pyke's Re|K>rts. Stuart's Reports. Revue de Legislation. Law Reporter. Lower Canada Reports. " " Jurist. Circuit Court. Superior " Queen's Bench. Vice-Admiralty Court. Court of Criminal Appeiils. Court of Common Pleas. Privy Council. Upper Canada. S. R. i< « Rev. de Leg., (< « L. R. a «< L. C. R. it « L. C. J. n ti C. C. (I n s. c. «< a Q. B. .( n V. A. C. <« n C. Cr. Ap. «i n C. C. P. t( n P. C. l '; ^^ I il .» I 'Si 7T IISTDEX TO LOWER CANADA LAW REPORTS. Absence : — Vide AnsENTKE. •< : — " PuKsnuPTioN. Absentee : — 1. The only' niudool'impl iulini^anal).sc'iitoe is by calling him ill l)y aclvortiseni(Mit uiitlcr the provisions oi' tlio !>ltli st'cliun »j1 (ho .liidieatiire Act, 12 Vic. c. 3H. [Con. St. li. C. cap. 83, sect. 61.] Whitney vs. Divicstcf, S. C, 3 L. C. U., p. 431. 2. Absent ilefenclaats, who liavti hail no domicile in Lower Canada, must possess real or jtcrscnial properly within the district where tiio suit is institiiteil to j^ive jurisdiction to the Court; [Con. St. L. C, iMp. 83, sect. (il,J and property of the defendants situated" in the district of (.hiebi'C, and held by A, resident within the district ol Montreal, is not j)roperty of the delendauts within the district of Montreal. Frolhiiigham et al. vs. The lJi(k:kviUe n/id OUawa Railway Comjnitnj, a-n / Dinhitiaon cL L. C. J. p. 128. AcTE d'hCritier: 1. Persons who have made actc dVienticru of their father, cannot afterwards renounce the succession and claim the part of the customary dower created by their father. Filioti tf- cd. vs. DcBeauj'cu, S. C, 5 L. C. J. p. 128. 2. If the heir take a sum of money belonging to the estate laying claim to it in payment of a debt, it is not an acte d'heritier. Dewar v&. Orr and Fisher, S, C, L. K., ]>. 87. 3. When option is equivalent to renunciation. vs. Demers. S. C, L. 11., p. 56. Vide Bissonnette and Bissonfictte, Q. IJ., L. R., p. Acte en brevet: — Vide HvpoTHfiauE. Acte sous seing PRivt : — An agre aent in writing sous sn?ii: privc is not null because it is hot made in duplicate. Shaic vs. McCotmeU, S. C, 1 L. C. 11. p. 176. Action: — Cause of action — where arose. " : — Vide Jurisdiction. " : — En declaration de 2)atcrnite : — 1. Action e?i di'chiratiotK dc paternitc though coupled with a demand for damages is not susceptible of trial by jury. Clarice vs. McGmtli, y. C, 1 L. C. J. p. 5. [Con. St. L. C. cap. S3, sect. 26.] Vide McElwce vs. Darliuix, S. C, L. K., p. 8. 2. Where the plaintifl''s wife was delivered of a child five months after marriage, the husband has no action en dirla- ratio?i dc pafcrnite against a defendant to have him declared to be the father of the child. Luinirafidc i^ u:c. vs. Diqnus, S. C„ L. R., p. 58. " : — Endestitutimi dc iutcllc: — A tutor must be sujiorscdcd in the manner directed in the Statute tl Geo. J If, c. 7 sect. IS, [Con. St. L. C. cap. 86, sect. 4] ; and an ajipoal is thcj jiroper remedy if the appointment of the tutor lias not been regularly made. The action en destitution lies for subsecpient misconduct in the tutor. Ihrvaulf vs. Foiir?iicr, 3 Rev. do L6g. p. 365. But the action en dcstitutioti dc tutelle cannot be instituted by one who is no way of kin to the minor. Ex parte O'Mcara vs. McCleverty, S. C, 1 L. C. J. p. 195. Unless the minor has no kin or relative in Canada. Dooley vs. Wardley tj- a/., S. C, 3 L. C. J. p. 72. " : — En garaniie : — 1. When an action en garantic is the result of an application for ratification of title, and the Writ has been sued out under the same number as the original pro ceeding, and as it were in that cause, it is not necessary to produce in the action en garantic, cither a copy of the titlo deed or copies of any portion of the record in such original procedure. Ex parte Judah tj- Judih, plaintifl'cn garantic^ and 2£^/and!, defendant en garantic, S. C, 1 L. C. J. p. 194. ' M '•'i I i' I a ii !:i> < { ■ i i '''; InHii 1: f, I : 1 llfiii: ' « « 4 ACT Action : — 2. In the Superior Court it was held, that the action en garantie does not lie by vendor against vendee, to compel the latter to pay certain debts which he had undertaken, but neglected to pay, and in consequence whereof the vendor has been sued for the recovery of such debts. Gauthier et al., 1. Darche, S. C. 1 L. C. J. p. 42. But this case was reversed in Q. B. ib. p. 291, where it was held that such action doe?^ lie. 3. But Corporators sued in respect of their Corporation debts, as if they were co-partners, cannot call in their co- corporators in an action en garantie, to indemnify them against their proportionate share of loss. Howard et al., vs. Childs et al., and Cliilds ct al., plaiutifTs en garantie vs. Chajmian ct al., defendants en garantie, S. C, 1 L. C. J., p. 160, confirmed in Q. B., (Court equally divided). 4. An Action cu garantie simple will Ho by a proprietor for damages caused to his tenant, by a third party by reason of the demolition of umitoi/eu wall. Delvcchio vs. Joseph, S. C. 3 L. C. J. p. 226. : — Vide Ratification of Title. : — En partage : — 1. In an action by the heirs of the wife cammune en hicns against their fathei, praying to be declared proprietors of one half of a farm belonging to the cotn- viunaute, it is necessary to specify which half, if a partition has taken place, and if not to pray for such partition by the declaration. Lalonde vs. Lalondc, S. C, 5 L. C. R., p. 97. 2. An action by tiie heirs of a deceased wife against the husband for a specific sum as proceeds of comrminaute will be dismissed on demurrer. The action should be en j^f^rtage. Dupuis vs. Dujniis, S. C, 6 L. C. 11., p. 475. 3. And a petitory action will not lie at the suit of one proprietor for a portion of the property, the proper proceeding being by^^a/ta^'c. McAdavt vs. Kingsbury, S. C, 1 L. C. J., p. 287. Also, Gauthier v. Glodne, Q. B., 7 L. C. J., p. 99. 4. The transmission of property bequeathed to two children, subject to a gradual substitution, in favor of their descendants, is divided by line and not by head. Dumont V. Dumont, S. C, 7 L. C. J., j). 12. 5. And when the substitution is open in favor of one of those called, before it is o])en for the others, he may imme- diately claim his share. Ib. : — En rcddition dc compte : — 1. An ac^^ion to account will not lie against a Secretary-Treasurer who has rendered an account and received a discharge. If there be error in such account, the remedy is an action en reformation de compte. The School Commissioners of Cltambly vs. Hickey, S. C, 1. L. C. J., p. 189. Also in another case of The School Commis- sioners of the Parish of St. Michel de Vaudreuil vs. Basticn, S. C, 4 L. C. J., p. 123. And so also where any agent has rendered an account to his principal, which account has been received. Gumming vs. Taylor, S. C, 4 L. C. J., p. 304. 2. It ij otherwise if there be fraud, ( T7ie School CommiS' sioners vs. Bastien,) for then the account is null. Motz vs. Moreau, S. C, 5 L. C. R., p. 433. And this last mentioned « ACT Action : — case having gone to the Q. B., although the judgment was reversed, this portion does not apjieur to have been dis- puted. 7 L. C. R., p. 14'7. The account is also null, ipso jure, if it he rendered by a tutor to a minor, on his coming of age, without vouchers, notwithstanding that the account so rendered has been accepted. Ducondu vs. Bourgeois S. C, 2 L. C. J., p. lOi. But an incorrect account will not be declared null, if it has become the basis of subsequent transactions between the parties, when the minors were of age, and when they were aware of the errors in the inven- tory or account. Molz vs, Mgrcau, P. C, 10 L. C. II., p. SI. 3. A tutor sued in an action to account, may plead that he has rendered an account before the bringing of tlie action, renew this account in Court, and conclude thiit the said account may be declared good and valid, and that plaintiff may be condemned to costs. Truddle vs. Roy, S. C, 4< L. C. 11., p. 222. And in an action to account where defendant j)leads that he had ])reviously accounted, and filed with his ])leas copies of his accounts alleged to have been previously rendered, and the issues were so joined, the plaiiitiU'cannot file deb its de coinptc until the said issues shall have been previously deciiled, and that the debuts de compte filed by the plaintiff^ may be rejected by motion o:i the p;irt, of the defen- dant to that efll'ct. Cummins, vs. Taylor, S. C, 4 L. C. J., p. .304. 4. It is not competent for a defeiithint, in an action to account, to plead that he acknowledges himself bound to render an account, by which he acknowledges to owe a certiiin balance! fur which he confess(>s judi^-inent ; but the Court pending the action will not order the defendant to pay to the plaintifl" the balance acknowledged to be due to him. Aubin vs. Lislois, 8. C, 4 L. C. K., p. 22.5. 5. An interlocutory judgment adopting without opposi- tion the account of a succession, prepared by its order, pa.sses in remjudicatam, and it is not competent to the re] resenta- tives of a minor, who was legally a party to the suit, to revise the proceedings, and contest any particular item of the account. The Court may moreover rectify any error of calculation. Plendcrleath et al., vs. Gi/lirroy, .S, K., p. 470. 6. An action to account lies against a curator to an absen- tee at the instance of any of the creditors, he being the mandataire of all the creditors. lu such a case it is not necessary to call in the absentee by advertisement ; service on the curator is sufficient. Murphy vs. Ktiapp rt vl., S. C, ■ 4 L. C. R., p. 94. 7. One CO partner cannot, after \\w, dissolution of the firm, sue another co-partner to render an account without himself offering and tendering an account. Ppin is. Christin dit St. Amour, S. C, 3 L. C. .),, ji. 1 19. Hui when in a decla- ration in an action 2)ro socio, it is alleiii-d that the plaintiffs have rendered an annual account of the portio.i of the part- nership business under their control to the defendants, it is not necessary to offer and file with such declaration, an account of such portion of the partnership business ; but it will be necessary to the maintenance of the action, to prove I ( IHlM 6 ACT fi i >_ I I Action : — the allegation that an account has been rendered hy the plaintiffs to the defendants. MoDoncUd et al., vs. Miller et al., S. C, 8 L. C. R. p. 214. 8. An action to account cannot be maintained by a person claiming a right to a share in a partnership business, in virtue of an agreement whereby he was to receive a certain portion of the profits of the concern as a salary for his ser- vices, where he has virtually broken the contract by with- drawing himself from the partnership before the expiration of the time stipulated in the agreement, and before the business of the same has been closed. Miller va. Smith, Q. B., 10 L. C. R. p. 304. 9. A party bound to render an account may be forced to do so provisionally or by contrainte par corps. Hayes vs. David, 3 Rev. dc L6g. p. 245. 10 The secretary-treasurer of a municipality, upon his refusal to render an account, should be condemned to pay the amount established by plaintiff with interest nt 12 ^jg;- cefitum, [Con. St. L. C. cap. 24, sect. 20, ss. 13,] and this moreover par corps, ("Con. St. L. C.cap. 24, sect. 20, s. s. 14.] The rule for such condemnation may be served at the Pro- Ihonotary's office, if it appear that defendant have left the province.* La corporation du covite de Chambly vs. Ijoupret., S. C, 4L. C.J. p. 125. 11. An action to account will not lie by the representa- tives of the Sheriff against the heirs of his clerk and ma- nager, through whose hands moneys had passed in that capncity. Ermatinger vs. Gugy, P. C. 15 Moore's Rep., p. 1. Vide. Johnson vs. Clarke. S. C, L. 11., p. 88. - « Ship. - « Tutor. : — En revendication : — Vide .Tury Trial. : — Hypothecaire : —In order to support an action hypothrcaire, the debt set up by the plaintiff must be due and exigible. Aylvnn vs. JudaJt, S. C, 7 L. C. R., p. 128. -Negatoire: — Vide Pleading and Practice. <' " Servitude. -Petitoire: — 1. The purchaser of an immoveable property, who has had neither seizin nor possession, cannot maintain the petitory action. Brother vs. Fitzback et al., S. C, 1 L. C. R., p. 7. Ihit in a more recent case this question was decided in the opposite sense. Verdon vs. Proulx, S. C, 1 L. C. J., p. 184. — And in Biiodeau vs. Lefran^ois, it was held that to enable a purchaser to institute a petitory action it is not necessary that he should have had the possession or actual tradition of the immoveable property claimed, pro- vided the vendor was in possession of such immoveable at the time of sale. Q. 13., 12 L. C. R., p. 25. 2. A plaintiff in a petitory action cannot recover under a conveyance, without its being established that the person grunting the conveyance had a right in the property con- veyed. Gihsim IS. Wear, 6 L. C. J., p. 78, and 12 L. C. R., p. 98. — And the title of the claimant must be older than the ■* Con. St. L. C. cap. 83, ifbeibre action brought, sect, 62, if after vect. 64. <( « « « ACT Action : — under person y con- C. R., an the -1 I ; 'I 'i possession of the occupant. Foisy vs. Demers, S. C, 12 L. C. R., p. 210. 3. A petitory action does not lie at the suit of one pro- prietor against his co-proprietor par indivis, for the recovery of his portion of the real estate owned by them, — the proper remedy being by an action en partage. McAdam vs. Kings- bury, S. C, 1 L. C. J,, p. 287 ; also Guuthier dit St. Germain vs. Glodue, Q. B., 7 L. C. J., p. 99. — But the heir may proceed by petitory action against a party in possession claiming an un- divided portion of the estate d litre de douuire. Cannon vs. O'NeU if aZ., S. C, 1 L. C. R. p. 160. 4. The St. 16 Vic. c. 24, does not vest in the harbour commissioners the proprietorship of the bed of the river, nor entitle them to bring petitory actions against the riverain proprietors who may have encroached upon the bed of the river. And generally, neighbouring proprietors, between whom no boundary bus been established, are not entitled to bring a petitory action the one against the olher. The Har- bour Commissioners vs. Ha'l t|- al., S. C, 5 L. C. J. p. 155. 5. The petitory action cannot be joined to an action for trespass ; nor can it be used instead of an action en barnagc. Robertson vs. Stuart, 13 L. C. R. p. 462. — And the petitory and the possessory actions cannot be cumulated, and the vice is not cured by consent of the parties. Trcj^anier vs. Dupuis, P. R. p. 24. 6. The declaration in a petitory action which contains a designation of the land by its name, that of the village, borough or hamlet, and of the parish where it is situated, is sufficient, even although the boundaries be incorrectly stated. But if the declaration be so far imperfect, that defendant cannot identify the land, he may plead this fact by an exception A la forme. The Royal Institution vs. Des- rividres, S. R., p. 224. 7. Questions relative to the introduction of English law into Canada since the conquest, and more particularly in relation to the provisions contained : — 1. In the Royal Declaration of 1763, which confers upon the Governor of Canada the authority to establish Courts of Justice, with power to adjudicate according to law and equity, in confor- mity as much as possible with English law ; — 2. In an Ordinance of the Governor of 176*, establishing Courts of Justice, with direction to adjudicate according to equity, in conformity as much as possible with the Laws of England ;— 3. la the Imperial Statute of 1774, 14 Geo. III., c. 83, sec. 4, which repeals and abrogates the Proclamation of 1763, and the Ordinances made under the authority of the same, acknowledges the existence of the laws of England since the Proclamation of 1763, and the Ordinances made under the authority of the same, acknowledges the existence of the laws of England since the Proclamation of 1763, re- establishing the existence of the laws of France, save and except as to lands held in free and common soccage ; — 4. In the Imperial Act of 1791, 31 Geo. III., c. 31, sec. 43, which permits the grant of lands in free and common soccage subject to such restrictions as may be imposed by the .Xd .'i i .1 M'l, if »'■ !. ' 8 ACT Hi H V t'l li i: Action : — Colonial Legislature ; — 5. In the Imperial Act of 1826, 6 Geo. IV., c. ^9, sec. 8, which declares that lands held in free and common soccnge, are subject to the law? of England ; —and 6. In the Provincial Act of 1829, 9 and 10 Geo. IV., c. 77, which confirms the rights of proprietors of lands held in free and common soccage, notwithstanding such rights should not have been acquired and exercised in strict conformity with the laws of England, and which modifies the luws of England, in relation to land held in free and common soccage. As to the legality of the last mentioned Act, the stime having been reserved for His JMajesty's ]>len.sure, and the lioyal assent given after the delay |)rescribed by the 31 Geo. III., c. 31, sec. 32, but imder the ))rovisions of the Imperial Act 1 Wm. IV., c. 20, it was held lliat the title invoked by the appellants, is a good and valid title, whether its validity be tested, by the laws of England or by th se of France. That the laws of France are ajiplicable to the present case ; that actual tradi- tion, according to the old luws of France, is not absolutely necessary to convey to the purchaser the right of property, and that the feigned or symbolical tradition, such as the delivery of titles, letters patent, plans, &c., may be sufficient. That J. 11., and his representatives, have in fact had the lands in contestation. That the sale made in 1833, by the widow and chiUlren of the said J. R. to B. B., nearly thirty years posterior to the sale made by the said J. R. himself, is null and void, by reason of the absence of property in the vendors, and by reason of the fraud and collusion between the parlies to the sale. That tVie non-registration of the Deed of Sale by J. R., in 1804<, and the registration of the Deed of Sale by his widow and children in 1833, (the said deed being declaren null and void,) according to the provi- sions of the 10 and 11 Geo. IV., c. 8, could not be prejudicial to the right of property of the lawful proprietors (the appel- lants) in favor of a purchaser in bud faith (the respondents) ; or in other words the registration of a title which is void, will not render it valid as against the rights of the lawful proprietor who has nut registered his title. Stuart tj* Boi07nan, Q. B., 3 L. C. R., p. 309. — Vide Cumulation of actio.'IS. — " Pleading & practice. Possession, tuadition. « « — Possessoirc — 1. The possessory and petitory actions cannot be joined, and the vice is not cured by the consent of parties. Trepanier is. Dupuis, P. R. i>. 24. 2. Title deeds of jiroperty which do not describe its extent, cannot give or determine limits to acts of ])ossession but place the iilleged possessor, in virtue of such title deed, in the same position as if he had no title deed whatever. JVaud dit Labrie ^ cU. vs. Clement dit Labonte, S. C, 8 L. C. R., p. 140. 3. A censitaire who has been in possession of the right of fishing in the River St. Lawrence in front of his property for thirty years and upwards^ and whose titles declare that ACT 9 Action : — he is proprietor of such right, niny bring a possessory action, when ho is disturbed in his possession, without being ol)liged to produce a title from the Crown, such title, so fur as third parties arc concerned, being iiresumed. Gagnon and JIudon, g. ]J., () L. C. 11., p. 24-2. " : — Quanta Mhwris : — 1. The sale of an immov^eable property by the sherilf, which does not contain the extent of ground described, gives the purchaser the right of demanding a reduction of the price proportionate to "the extent of the ground deficient. Puradis vs. Afnhi, S. C, 2 L. C. R. p. 194-; Lussier vs. McVeigh, S. C, (i L. C. J. p. 188. But in appeal this case was reversed, and it was held that the reductiitn should be uccording to the value of the lot not delivered, il B., 13 L. C. 11., p. 265, and 7 L. C. J., p. 132. 2. The Want of extent {defaut dc cnntcnancc) does not authorize the ])urchaser toseekthe nullity oflhesale. Grey vs. Todd 4* «^-> 2 Rev. de Leg. p. 57. But it would be otherwise if the lands were describeii as having buildings on them, when, in effect, there were none. Lloyd vs. Chip/iam, 2 Rev. de Leg. p. 179.* 3. But an action quanta mhioris, cannot be brought de piano by an adjvdicataire of real property against a party plaintiff, jmursuivant le decret, to recover the value of a deficiency in the extent of land sold, until such deficiency shall have been established in an action to reform the sheriff's title granted to the adjudicataire, and to correct the description of the quantity of land, to which action the pursuivant and the saisie must be parties. And luitil such deficiency be so established, the title granted by the sheriff is conclusive evidence of the quantity of land sold. Dcsjardins vs. La Banque du Feuple, S. C, 3 L. C. J., p. 75, also 9 L. C. R., p. 108. Reversed in appeal, where it was held that the saisie need not be put into the case, and that the creditor who has received the money is obliged to refund the excess. Q. B., 10 L. C. R., p. 325. " : — liedhibitoire : — Where the vice in an article sold is not of such a nature as to be perceived at once, the vendor gua- rantees that it is fit for the purpose for which it is sold. Plaintiff having paid defendant neither increases nor dimi- nishes the rights of parties. Footncr vs. Heath, 1 Rev. de Leg., p. 92. " : — Rerolutoire : — 1. The resolutory action in default of payment of the price of sale may be exerciseil at any time in the hands of a third party to whom the property sold had passed. Foirier vs. Tasse tf- al., S. C, 7 L. C. J., p. 226 ; 13 L.C. R , p. 459. 2. And a vendor who had made his opposition to a rati i- cation of title demanding paymc^ut of the ]n-/x de vente, does not relinquish his action en rcsilialion, faute de paiement du prix. David vs. Girard 4* ol-t S. C, 6 L. C. J., p. 122, and 12 L. C. R., p. 79. * The reporter criticises this (ledsion saying thnt It is contrary to the jurisprudence of this country. It is in conforiniu with the Koman Law at all events. V. iSavigny, Droit Aomain, cxxxvii, iii, T. 3, p. 297. •^ i. ' 10 ACT It \ i :1 IJ Action :— 3. But an action to resiliate a deed of sale will not be maintained against a third party, purchaser of the land in question, if there is no offer by the plaintiff to reimburse to the second purchaser certain sums paid by him on account of a debt indicated in both deeds as due to the seignior, and also a certain sum paid, on account of a Joint and several obligation of the vendee and of the plaintif!, for the payment of which the land in question was hypothecated by the first purchaser. Surprenant vs. Surprenant 4* ol., 12 L. C. R., p. 397. 4<. In an action to resiliate a verbal sale admitted by plaintiff but with conditions different from those alleged by plaintiff, the latter may obtain judgment according to the admissions of defendant. Lncroix and Latnbert, Q. B., 12 L. C. R., p. 229. Vide infra Admission No. 4'. .*>. A creditor not a party to a deed, alleged to be made by a debtor en deconfdure and in fraud, will not be entitled to have such deed set aside, unless he prove that he has thereby sufitjred prejudice. Sharing and Meunier dit Lapierre (J- al., Q. B., 1 L. C, J., p. 142. 6. The action revocatoire will lie to have a sale of move- ables set aside for fraud, and this though the sale be a judi- cial one. Ouiniet Sf al. and Senecal (|- al., Q. B., 3 L. C. J., p. 35. And in such a case, the extreme lowness of the price of the goods sold, though not in itself a sufficient motive to annul the sale, may be an element in appreciating facts and circumstances from which to arrive at the conclusion that the sale was fraudulent, lb., Q. B., 4 L. C. J., p. 133. 7. An assignment by an insolvent debtor to some of his creditors may be set aside on an opposition. Cummings 4* al. vs. Smith ^al., Q. B., 10 L. C. R., p. 122, also 5 L. C. J., p. 1. 8. Rescission may be demanded by pleas as well as by an action. Tfee Principal Officers ofH. M. 0/d. atid Taylor ^ al., Q. B., 1 L. C. R., p. 481. 9. All the parties to a deed of donation mast be before the court before it will be set aside. Martin vs. Martin, S. C, 3 L. C. J., p. 307. And the rescission of deeds alleged in an opposition afin d''annuller, cannot be prayed for, unless the parties to such deeds are joined in the proceedings ; and in such case recourse must; be had to the actio pauliana, or revocatory action. Mignier vs. Mignier, S. C, 2 L. C. R., p. 251. 10. When in an action en rescision, defendant pleads prescription of 10 years, an answer that the dol which has given rise to the action was only discovered within the ten years is good in law. Picault vs. Demers, S. C, 2 L. C. J., p. 207. : — Vide Execution. Hypotheque. Pleading and Practici!. Scire Facias. : — To condemn Trustees to execute deed of assignment. Vide Spalding vs. Haskill, 1 Rev. de Leg., p. 398. : — Vide Costs. it it « 4t i( I Ad^ u ACT to ADM 11 Action: — FtV/e Notice of Action. « : — " Security for Costs. Actions : — Firfg Action petitoirb. M . — <» Cumulation of Actions. Adjudicataire : — 1. The adjudicataire claiming a reduction of the price of his adjudication, by reason of a def(vut de contenance iiiuct proceed by petition, and not by opposition. Quebec Building Society vs. Jones, S. C, 11 L. C. 11., n. 430. 2. An adj'udicataire of the undivided half of a ; .opcrty by its naiiire indivisible, will not be given a writ of possession against the proprietor of the other half who is in possession of the whole. Licitation is the proper proceeding. McBlain vs. Hall ^ al.y and Boswcll Sf cU., S. C, 12 L. C. R., p. 102. 3. The shorili'only gives a valid title to an adjudicataire if the sale be super do tnino, and if it be not, the property may be seized again and sold even at the suit of the person at whose suit it was formerly sold super non domino. Doutre vs. Elvidge, Q. B., 7 L. C. J. p. 257. — Vide Action. — " Decret. — " FOLLE ENCHfcRE. — " Sheriff. Admiralty: — 1. The Court of Admiralty, except in prizes, exercises an original jurisdiction only on the ground of established usage and authority TheFrie7ids,\}. \\2. S. V. A. R. 2. It has no jurisdiction of any contract upon land, and the general rule is, that if a contract be made on land to be executed at sea, or be made at sea to be executed on land, the common law has the preference, and excludes the Admiralty, lb. 3. The cause must arise wholly on the sea, and not within the precincts of any county, to give the Admiralty jurisdiction. lb. ' 4. The cases where the Admiralty has jurisdiction by reason of the subject matter, and where the proceedings are in rem, are a class by themselves, lb. 5. The Admiralty jurisdiction as to torts depends upon the locality, and is limited to torts committed on the high seas. lb. 6. Personal torts committed in the harbour of Quebec are not within the jurisdiction of the Admiralty, lb. 7. The Admiralty entertains jurisdiction of personal torts committed by the master of a vessel on a passenger, if arising on the high seas. The Toronto, p. 181, S. V. A. P.. 8. The jurisdiction of the Court in cases of pilotage is undoubted. The Phcebe, p. 60, S. V. A. R. 9. It has no jurisdiction in cases where there has been a previous judgment of a Court of concurrent jurisdiction upon the same cause of demand. 75. 10. It has jurisdiction in relation to claims for extra- pilotage in the nature of salvage for extraordinary services rendered by pilots. The Adventure, p. 101, S. V. A. R. 11. In suits for damage to a ship by collision, notwith- standing the cause of action may have arisen out of the local limits of the Court. Vide Collision. i i 11 iv I ■'. ' 1 i1 i'.i ' IN ij in ! .Ji 4 1 i 1 t 1 i 1 i 1 \ i'i ; U'^l h i 12 ADM Admiralty : — 12. In mntters of possession nt the suit of tli(» (»\vnors or nwiKT of a ninj(jrity ol'intcri'sts in u ^lli^) lu obtain possession tlitrcof. The' Mary and Dorot/ii/, p. 187, 8. V. A. R. Ui. Uy 3 iV 4. Vic. c, G'), s. (l/ilu- High Court of Ailniiralty 1ms jurisdiction to docidn all cliiitns of sulvnpo, uiid diimage to ,iuy sou-going ship or vessel, niul to eufdrci! puyinent thereof, whether sueh ship or vessel may have been within the body of u eouuty, or on tho high sens, at \\iv time when the cause of action siecrucd, T/tc Mart/ Jane, p. 2G7, S. V. A. It. li. Ancient jurisdiction restorrd, by the same slidute, with respect to claims of material men for necessaries I'urMished to fori'igu ships. Ih. 15. ]t has no authority to eufitree ilemands for work done or materials furnished in I'luijlaud to shijts owned there, lb, 16. Nor has the Vice-Admiralty of Lower Canada juris- diction with respect to claims of material men lor materials luruished to ships owned there. Ih. 17. The Court of Vice-Admiraltv e.xcrcises jurisdiction in the case of a vessel injured by collision in the river St. Lawrence, neur the city of (Quebec. Tke Camillus, p. 383, rf. Y. A. 11. 18. A prohibition may issue from the Court of King's Bench to stay proceedings in the Court of Vice-Admiralty. So in a suit lor salvage of a ship stranded on a sand bank in the St. Lawrence, the locus in quo being infra corpus cnmitatus, it was held, that it was not a case of Admiralty jurisdiction, and a prohibition was granted to stay further proceedings. IlumUton et al., vs. Frascr et al., S. l\., ]). 21. 19. Under the words" Courts of Sessions" having juris- diction in the port or place at which a ship shall arrive, contained in the 57 Geo. III. c. 10, sec. 8, the Court of Vice-Admiralty claims jurisdiction in proceedings for penal- ties and iorfeitures imder that Act. IVi/son vs. Norris, S. R.,p, 163. 20. The Court of Vice-Admiralty has no jurisdiction in an action by a j)ilot for the moving of a vessel from one jioint or place in the harbour of Ciuebec to another. Mcrcicr vs. The Collna, V. A. C, 7 L. C. R., p. -127. 21. The Admiralty has jurisdiction in cases of possession to reinstate owners of ships who have been wrongfully displaced from their possession, and where it has coguixance of the principal matter, it has also cognizance of the inci- dents, 'llie Ilaidee, V. A. C, 10 L. C. R., p. 101. The Court of Admiralty has jurisdiction in cases of collision occurring on the high seas, where both vessels are the pro- perty of foreign owners. 22. Questit'us of collision are questions communis Juris ; and in cases where both parties are foreigners, the important distinction is whether the case be communis Juris or not. The Anne Johannc, V. A. C, 10 L. C. R , p. ^ll. 23. The Court of Vice-Admiralty has jurisdiction through- out Lower Canada to attach a sea-going vessel to answer a suit instituted in that Court. Ex parte Coition et al., S. C, 7 L. C. J., p. 295. ADM to A D U 18 Admiraltt : — 24. Wliore a limitod laithority is given to Justices of thr» Pence, they cannot extoiid their Jurisdiction to objects not within it, Ity linding us a fact that which is not a fact ; and their warrant in such a case will he no protection to the The llaidee, V. A. C, 10 L. C. ofHcer who acts under it R., p. 101. -Vide CouE Mahine. - " JtmsnicTioN. - " Lien. - '• \V'A(iES. Admission: — 1. 'J'hi> uvru of a party in a Lrfchirc vs. (h Manf ■<:?/}/, 8. C, 2 a n n airu oil fdifs it articles may he connnencrmnit dc frnire 2)ar icrif. L. C. .1., |). r.i2. And plaint ilfs suit cannot bo L. r. J., p. 279. diridcd so as to 1 Ford IS. Butler, S. C, 6 are entitled to iiave tlic ijui un /_ . , I / iirnish a n CuAX. CU^ divided Jiut un answers on /'.'its rt nrticlrs divided, and that i)art in M'hich Li 1 h C Z5'Q. defenihuits seeks to explain tlu^ character in ' ' '7' one of which the ote rejected, the facts not havinj^ been / ■:t at. vs. Wright rt al., S. C, 3 L. C. U, '^ !ie sif!;iied a n pleaded. Scijinour ct p. 4!)4.. 2. The admission of a partner on faits el articles binds tlie firm. Maguire and Scott, Q. B., 7 L. C. 11., p. 4-51. And even atler the dissolution o( the partnership as to events during the partnership, or relative to pnrtnership aifairs. Fisher vs. Russell, et a/.,S. C.,2 L. C. J., p. 191. Conlirnied in ii. B., 1st December, 1858. But the existence of a j)art- nership cannot be established l)y the admission on faits el articles of one of the alleged co-partners. Boivker and Ch'iudlcr, y. C, L. R., p. 12. And later in the case of Chajnnan vs. Masson, S. C, 2 L. C. J., p. 21G. Conlirmcd in Q. B., 3 L. C. J., p. 285. 3. An admission in a plea, even where defendant has pleaded the general issue, will be taken as evidence. Viger and Beliicau, Q. B., 7 L. C. J., p. 199. 4. An admission by a defendant of a balance due plaintiff, will warrant the Court in giving pluintifrjudgment, although there may ])e some doubt as to the proper action to be brought. Miller vs. Snell, 8. C, 7 L. C. J., 228. 5. Proof of the value of goods ordered to be restored by a garrlien, under a rule for contrainte imr corps, the goods having illegally passed from the hands of the gardicn, may be established by the verbal admission of the plaintiff, made at the time of the seizure of the goods, and to a person not then interested in the value of the goods. Leverson ct al., and Boston, Q. B., 3 L. C. .1., p. 223. 6. Upon the trial of an indictment for bigamy, the admis- sion of the first marriage by the prisoner, unsupported by other testimony, is sufficient to support a conviction. R. vs. Creamer, Q. B., in Appeal, Crown Side, 10 L. C. J., p. 404, " : — Vide Pleading and Practice. Adultery : — 1. In an action of separation de corps et de hiens the court may declare that the wife has forfeited her matrimonial rights owing to her adultery. Cherrier and Bender, Q. B., 3 L. C. R., p. 418. Also L. .#.vs. L. .. .8, C, L. B,., p. 71. yj t. J.' I i ,■;» I'' ■\ : ^lf>l _ ; 1 , ' t .i 1 1 1 14 A D U to AGE I i 1! ) ■: i ■! I' I Adultery : — 2. Tho Qildultery of the wife during marriago is no ground in tho mouth of tho hoir to rofuau her tlio matrirtionial righta. This yi« de non-reccvoir can only bo nioadud by the husband. And tho absonco uf tho wife from the matrimonial domicile, owing to her husband keeping a cuncubino there, is lawful, and such absence is not a ground for depriving her of her matrimonial rights, and under such circumstances tho wife is justifiablo if she abandon her husband on his death-bed. Uadiois vs. Bonnier dit Plujite, S. C, 5 L. C. J., p. 2ft7. Advocates: — 1. The rcmuncratiou of Advocates and Attoruies it not prescribed by tho lapse of two years.* Andrcivs vs. Birch, 1 Rev. de L, that an agent in possession of goods gives a good title to a purchaser in good faith as against his principal, under tho Consolidated Statutes of Canada, cap. 59. Davis and Bcaudnj, Q. B., (> L. C. J., p. 163, and 12 L. C. R., p. 18. A clerk cannot accept a composition of 5s. in the JG. from his employer's debtor, without special autho- rity so to do. Seymour vs. Woodbury, S. C, 11 L. C. R., p. 71. 2. An agent has no authority to bind his principal by signing and discounting a promissory note as agent, although authorized by written Power of Attorney to manage, administer, sell, exchange and concede the real and personal estate of the principal, and to collect, compound and arbitrate all claims and debts, with a general clause empowering him " to do all acts, matters and things whatsoever, in and about the property, estate and affairs of the principal as amply and effectually, to all intents and purposes, as the principal could have done in her own person if the said power of attorney had not been made." An agent with such powers is an administrator omnium bonorum, with no power to borrow, except for the purposes within the limits of his administration ; and the declarations of the agent to an accommodation endorser, to obtain his endorsation, are not * Nor by the laps* of seven years, it would seem. AGE 1$ Aotnr :— evidence in a suit against the principnl by the {inrty who afterwards discounted the note. CasUe vs. Jiy an instrument in writing, is of such a nature as to ro(jiiire its execution by a deputy, by tho law in force in Lower Ciinada, the party originally authorized as the agent may apiioint a deputy. By an Act of the Canadian Legislature, 13 a'ul U Vic, c. 116, a company was incorporated fur the purpose of niakinc a railway, with power to purchase and take land required for the railway, either by agreeiii^ with the owners of tho land lor the price -ind comnensaV tn, to be given, or if the matter could nol be settled, by referring to arbitration. A contract was afterwards entoied into between tho company and certain contractors for c iunletion of the railroad ; by this contract it was agreed ♦hat the c/mtra*. ' irs were to com- plete the railroad at their own ex .iose and charges, and pay any claims which might be »tim i,. against the company, including the purchase of lands r quired, nnd the company were to exercise, or perm", the contractor 'o exercise, as the case might be, any o' the powers vesteii in them by the Act of Incorporation, as ft lly, amnly and effectually is 'f the company itself had exercised such powers and [tiiciijed the works ; and, in tho exercise of .such powers, the eon- tractors were to use the naiue of the company, if deemed necessary. The contractors who resided in England, after- wards, by a power of at >uey, which recited the aliove contract, deputed 11. as their agent, with full power on their behalf, to construct the railway, enter into contracts for the purchase of land, and to settle any claim for land or other damages, and generally to execute and j)erform all such acts and things in reference to the purchase of land as fully and eHectually as the contractors might do. The company requ. . .! part of Q's. land, and before the contract for the complc : u of the railroad had been in treaty with him for taking such land, bui could not agree upon terms. Q. had, in consideration of the company's compulsory power of purchr'.-;i under the act, let them into possession. An agreeir it or bond of arbitration, was afterwards entered into by R. and Q., to refer the matter to arbitrators, amiahles compositeurs , to ascertain the amount the com- pany should pay to Q. for his land. In this agreement R. was described as the agent and attorney of the contractors for the works upon the railroad, " acting in this behalf in the name of the company under authority to that effect contained in the contract between the company and the contractors." The arbitrators awarded a certain sum for land and for damages sustained by Q., to be paid by U • ; contractors. Q. applied to the company for payment, wh '«.« n 1 i I > i i1:i -\ "1 ; ! I '. ' \u f\ il' 16 A>GE to A IN Agent : — referred him to the contractors, who refused to pay the aroount. Q. then brought an action against the company in the Superior Court in Lower Canada, to recover such amount. The company pleaded in defence, that the con- tractors, by the contract, were alone liable, and that R. had no authority, either from them or the contractors, to refer the matter to the arbitration oi amiables compositeurs. Upuii a}»poul held (alRruiing the judgments of the Courts below). First, that the contractors, both by the express lan- guage and the noL-essary eflect of the contract with the com- pany, were to lie 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 Iniy laiuls, and to make the company liable to third parties with whom they had contracted in the name of the comininy, to the performance (/f any engagement entered into on their behalf, although, as between the contractors and the company, the former were bound to supply the necessary funds. Second, that the contractors, under the contract, had power to delegate to an agent, powers similar to those vested in theiu by the company, and that under the power of attorney executed by the contractors, R, possessed the same powers of acting and rendering the company lial)Ie, as the contractors themselves had under the contract. Third, that the company had no power to transfer their rights created by the Canadian Act, 13 and li Vic, c. 116, to the contractors, so as to relieve themselves from the responsibility wftich the Legislature had attached to the exercise of their powers. Fourth, that tlie action was properly brought against the company, ujion the award, as the contract with the contrac- tors in no degree altered the position of the company with third parties, and that the agreement with R. was made on the company's behalf, for although the company had a right, as between themselves and the contractors, to require the contractors to make payment, yet, as the contractor's agent, R. had entered into no personal engagement with Q., the contract with the company was res inter alios acta, with which the company had nothing to do. Fifth, that the submission to arbitration of amiables compositeurs was the proper course to pursue. The Quebec and Richmond Rnihoay Company and Quinn, P, C, 12 Moore's Rep., p. 232. : — Vide Carriers. — " Contract. — " Election Agent. — " Promissory Note. Agreement : — Vide Consideration. « - — « Office. Agricultural Act : — Penalties under this Act are recoverable in the Circuit Court. Garneau vs. Garneau, C. C, 13 L. C. K.; p. 4.37. Amiables Compositeurs : — Vide Principal and Agent. AiNfissE : — Vide Droit d'Ainesse. « u ALI 17 the with in the I Alien: — 1. Previous to the 12 Vic. c. 197, an alien domiciled ia Canada, but not naturalized, was incapable of taking real pro- perty by devise. Paquct vs. Guspard, S. 11., p. 143. lie could not inherit the i)ersonal estate of a British subject. Sarojiy vs. Dell, S. R., p. 34-5; nor could he devise by last will and testament. Donefiani vs. Donrgani, S. R., p. 4G0 ; also 3 Knapp's Rep., p. 63. The succession of an alien devolved tohisgrand-fhildren, natural born subjects, to the exclusion of his own children who were aliens. Ih., S, R. Butil an alien died without issue, his lands belonged to the Crown ; iiiid if he left some children born in Canada, and others born abroad, the former excluded the Crown, and all took alike as lliough they were natural burn subjects. Hut if an alien had a son, who was also an alien, the children of the latter inherit from the grandfather to the exclusion of their father. 21k, 605. The question as to who is an alien is to be decided by the laws of England; but when the condition of the party is once established, the consequences which result therefrom are to be determined by the laws of Canada. IL, 605. 2. In the case o[ C'/rse t^- al. vs. Corse, S. C, 4- L. C. R., p. 310, it was held: That under the Act of 12 Vic. c. 197, sect. 12, [Con. St. C. cap. 8, sect. 9,] which enacts that every alien shall have the same capacity to take, recover and transmit " real estate " in all parts of this Province, as natural born or naturalized subjects, the alien is piaci'd in the same positi<)n as the natural born subjc'ct,vand can claim conjointly with a naturalized heir, both real and personal property. And Ih it moveable property although not men- tioned in the 12th section of the Act, must be taken to be included in the larger term real estate. Alienation: — Vide Dower. Alimentary allowance: — 1. By will a father left certain property to his son greve dc substitution, in which will was the follow- ing clause : " Je defends exprcssement que ces biens soicnt en aucune nuinivre engages, cUienes, hi/jwlheques, non plus que la jouissance, interit ou usufruit d''iceux qu'ils (Jes greves) retire- rant jiour Icur pension et subsistence et pour la subsistence et Veducntion de leur f((millc, sous jjcine dc nullite dc tons actes quhls feront contraires d mon intention, 2)our que ces biens retournent d leurs enfants, etc.''^ The son was separated dc corps from his wife, and she obtained judgment against him for an allowance of jGSO a year as sustenance. In execution of this judgment she seized the property in question ; and it was held, that the property was only protected to the extent necessary to provide aliments for the defendant and his children. Dame M, L. E. F. dite M. vs. L. E. C. dit C, 1 Rev. de L6g. p. 81. 2. The offer of a son to take his father to live with him will not defeat an action for an alimentary pension. Alio vs. Alio t|- a/., S. C, 1 L. R., p. 11. Unless the son is in indigent circumstances. Vallieres vs. ValliHres, 3 Rev. de L6g. p. 83.* * There was also a case of GobeilU vs. GoheiUe ir al., S. C. M. 27tli September, I8fi3, decided in the same sense ; and in giving judgment Mr. Justice Vunielsou rcrairkw that the admission or rejection of this condition was discretionary witli the Court. • 2 ' < ' I :\ I ''I f " .< I. I 11 18 A L I to A M K i. * ^i n 'i i i iM Alimentauy allowance: — 3. Where n petition for nn nlimentnry nllowance is pre- sented during the pendency ofan iiction lo acfoniit, ap;iinst an exccntor, tiie Conrt will ijriiiit a certain nii-dcrate sum lor the relief of the immediate wants of the lene?it within the meaning of the law. Sm-h an (niicid)lisse.mcnt has no effect except as regards the commiuiily and between the conjoints themselves, 'fhe immoveable properly so given jireserves its tpiality ol' proprc np to the time iA' jnirtage. So the other conjoint being dead, and the children burn of the marriage afterwards ilying without issue and before partage, the amcuhlissenient lias no k)nger any effect, and the collateral lieirs of the conjoint, in whose favor it was stipulated, can claim no rights in such immoveable propertv. Charlelms and lleadlcy, (\. IJ., 2 L. C. 11., p. 213. 2. A covenant in a marriage contract that " the parties take one another with the property ami rights to each of them respectively belonging, and such as may therealler accrue, of what nature soever, which said property, move- able or immoveable, shall enter into the community '' is a covenant of ameuliiisxement of all the property belonging to the parties, notwitlistanding a subsetjuejit clause of 7'ecdisa- tion ; and consetiuently tlie customary dower cannot be claimed out of the husband's ;;/v?/;/-cs. Moreau vs. Mathetrs, S. C, 5 L. C. R., p. S-.'). And in Toussaint etcd.,vs. LcJdanc, S. C, 1 L. C. 11.,}). 2,'), it was also held, that the stipulation of ameublissement, in a contract of marriage, excludes the cus- tomary dower on the immeubles anteublis. 3. In the case of a marriage contract with a covenant of ameublissement, and a clause of realisation in the event of renunciation of the community by the wife, the wife sij)aree de biens, by judgment, cannot claim by way of reprise the eajoymeat of the proceeds of the sale of un immoveable pro- perty given by the mother to her adopted daughter and her husband during the community, unaer the condition that such property shall not be subject to seizure, but should be i 1'^ A M E to A P r 19 Ambubussement : — reserved to supply alimoiits. And the property so given does nol become a proprc of the wife. And the report of a praticicn awarding the same to the wife, and the judgment homologating the sjime, are not l)inding against tliose not parties to the jiroceedings. Jarry nnd The Trust and Loan, ComjMny, (.^ 13., 11 L. C. 11., p. 7. « : — Vide DouAiRE. Appeal: — To Suv nor Court. Bond. — 1. Tender the 12 Vic., e. 38, sec. r)4«, ' Llv p. 20 Vic. c. ++, sect. r")f».] the real estate of the surety, mi an ii|)|)pal from 'lie ('ircnit Court, uuist be described. Ilitchaxk nnd I\I. 6;"). , 2. An appeal will lie from an interlocutf)ry judgment of the judge of the Superior Court, rejecting the summary petition of a defendant, nrrestod by capias, to be discharged in the terms of the 12 Vic. c. 42, s. 2, [Con. St. L. C. c. 83, s. 53.] lUankensee and Sharplcy, Q. iJ., 3 L. C. J., p. 292. 3. And an appeal will be allowed from an interlocutor rejecting the njolion of the defendant to quash a cajnas under which he has been arrested and is out on bail. lloffnung and Porter, Q. 13., 7 L. C. .1. p. 301. And so also from u judgment t)rdering the discharge of the prisoner. (Jugy and Fargusaon, Q. 13., 12 L. C. 11. ]). 2M.. 4. A judgment (juashing a writ oi'cnpias is an interlocutory judgment Avhich cannot be appealed from ^^fJJ^a^io. Berry and May, Q. J3., 10 L. C. U. p. li'5. 5. The transcript is conclusive evidence of the nature of the proceedings and the Court will not go beyond to consider the effects of a subsequent judgment not conqirised or referred to therein. Ih. 6. An appeal lies from an order of the Superior Court discharging an inscription for hearing in vacation, on the , merits of an exception a fa forme, without the consent in writing of the parties for such hearing out of term. Dease and Taylor, (i. 13., 2. L. C. R. p. 227. 7. A judgment of the Superior Court determining and de- fining the facts to be inquired into by the jury, is a judgment from which an appeal will lie to the Court of Queen's Bench. Arthur and The Montreal Assurance Comjyany, Q. B., 6 L. C. K. p. 99. 8. A writ of appeal, and not a writ of error, will lie in the case of a jury trial when the grievance is not merely an error in a matter of law, and if there is no plea deter- mined by the verdict of the jury, but a final adjudication upon law and fact. [Con. St. L. C. c. 77, s. 2^.] Casey and Coldsmith vt al, (}. 13., 2 L. C. R. p. 212. 9. The Court of Appeals may hear an objection not argued in the Court of original jurisdiction. Hcrtt and rhcenix Assurance Company, S. R. p. 354. 10. An action in the Circuit Court for less than £25 becomes appealable if defendant sets up title to real estate in his pleas. 11. An api>eal lies to the Queen's Bench from judgments in Circuit Court rendered in vacation under the Lessor and Lessees Act of 1855. [Con. St. L. C. c. 40, s. 15.] Gould and Sweet, Q. B., 4 L. C. J. p. 18. ATP 23 Appeal: — 1*2. No appoiil lies to the Queen's Bonch under the 12 Vic. 0. 38, S.S. .').'! [Uo|.. 20 \'ic. c. 4-t, s. 5!)] and 9"), ; 18 Vic. c. 108, s. 1") ; and tlie 20 Vic. c. 44, s. (iO, in an action of ojoclnii'iit iiistitiilcd in tlic Circuit Court, whereof the annual rent is under £'2:k [Con. J?t. L. C. c. 40, s. If), and c. 77, s. 3l>,] Ucttr/i and Lampson, (). 13., 10 L. C, 11., p. •too.' 13. Thi-re is no apjieal from a jud^nuMit on an exception, tendnifT to obtiiiu the suspension ol' proceedings until a decision is rendered in another cause between the same jiiirlii's ou similar matters. Ihncmiui ond <^iuaii(i, <.^>. 13., 1 L. C. II. p. HI. 14. A party is not < ntitled to an appeal from an interlo- cutory judj,nnent reji'clniij; an c tvvption d /n fur me, upon the ground of its having been filed too late, if the grounds of such cxap/io/i a /' forme might have been made the grounds of a denuurer, tiled in the same cause, and if copy of the demurrer be not produced; anil this because the Court ol Appeals cannot determine if the grievance com[)lained of be irremediable or iiot, the denuu'rer not being before the Court. [Con. St. L. C. c. 77, s. 2G.] Morcau and Motz, q. I}., 3 L. C. 11. p. ^3. 15. No appeal from the Superior Court lies on u demand not exceeding jL20 Stirling, or JC21' Gs. Sd. currency. [Con. tit. L. C. c. 77, s. 23.] Rhiaume and Furticr, Q. 13., 6 L. C. R., p. 184. IG. 'fhere is no appeal from a judgment rendered on a "wr'ii oi certiofuri. [Con. St. L. C. c. 8N, s. 17.] ISatin et al. vs. Crevicr ct id., 3 He v. de Leg. p. 401. And so also it was held in tliu Q. 13., in JJosfo/i et ul. and Lc/iecre et of. Seig. Commrs. and The Ally. Gcnf. 6 Sept. 18G4, that there was no appeal to the (.^. 13. from a judgment on a writ of certiorari, )x\\(\ on motion the ap|)eal was rejected. 17. An appeal does not lie to the (.iueen''s Bench from a judgment of the Superior Court exercising the jurisdiction conferred n[)on the latter by 12 Vic c. U.f Bristow and Rfdland, Q. 8., 4 L. C. J., p. 283. " : — Petition. — 1. In cases of appeal from the Circuit Court the original petition in appeal, notice, iVc, nuist be filed iii the office of the clerk of the Circuit Court within twenty-five days of the rendering of the judgnjenl appealed from, other- wise the appeal will be dismissed on motion, under the pro- visions of the 20 \'ic. c. 44, s. (itJ, [Con. St. L. C, c. 77, s. 4r>.J McCJillis Sf-al. and Pearcc *)• id., Q. 13., 9 L. C. K., p. 114. 2. In appeals Irom the (Jireuil Coiut, the service of a copy of the ])etition, notice and bond in aj>peal, at the domicile of the attorney ad litem, is sutlieient, under the 20 Vic. e. 44, s. Gi), [Con. St. L. C., c. 77, s. 44.] licdard and The Parisk of St. Charles Bmromee, q. B., 10 L. C. H., p. 429. * III t lie case ui Gmiht and Sfir/, ii wuiiM SI em tliai ilie ii|)|;i'.il wns nlloweil bei aii>e •he action relatfd lit title to real e>liiU- ; Imt Irom l)uili I'lisr^ I uiiin-ars lliut in cases luuler the Le«Kor and Lessseeii Act in the Circuit Court, under XZ.'), there is no uppctti to the QurenV Bench. f Con. St. L. C, c. 88, s. 17. But the exception, with regard to City and Municipal Corporations and their officers, (which would prohably have included this ca."!!), initst not hu lost aight uf. '■J I* ' I 24 APP i\^ ijii .;! i J t ! ( ! ! j 1 i rl i i 1 nt Appeal : — Miscellaneous. — 1. Althougli an Act of the Legislature,pnssed after the judgment rendered in a Court of original jurisdic- tion, may aifect the rights of a party as they existed at tlie histiiution of a suit, this circumstance cannot be taken advantage of in an apjjpal from the judgment. Donegani and Donegani, S. R., p. GOf). 2. The writ of appeal which does not hear the signature of the attorney suing it out will be quashed and annulled. But the omission is not an absolute nullity and may be remedied on application to the Court. Viger and Bciiteau, Q. B., 6 L. C. J., p. 177 ; also 12 L. C. K., p. 405. Vide infra, Q. B. Writ. 3. A respondent who has not proceeded in appeal is supposed to have renounced all formal objections. The return to a writ of appeal nmy be signed by one judge. Ilency and Holland, Q. B., 1 L. C II., p. 401. 4. On motion a party will be ordered to pay the costs on an appeal abandoned before proceeding further, and if not done within a certain delay the new appeal will be di<(- missed. Bouvier and Reeves, i}. B., 13 L. C. 11., p. 479. 5. The party who appeals from a judgment dismissing his opposition must give security to the plaintiff to answer the condemnation. Lampsnn and Wurtde, 3 Kev. de L6g., p. 107; Coutlee vs. Rose, Q. B., 6 L. C. J., p. 186. 6. The sufficiency of security in a])peal cannot bo ques- tioned by a preliminary exception. Knowlton ^' al. and Clarke if- al., Q. B., 13 L. C. R., p. .500. 7. On cause shewn the Court will give delay to furnish security on an appeal from Circuit Court. Berriau and MvC(rrktll, Q. B., 13 L. C. R., p. 480. 8. Where the parties to a suit have treated it as not appealable although appealable, the Court will not disturb the ju< gment. Osgood and Cidlen, Q. B., 11 L. C. R., p. 282. And so where no evidence is taken in writing in the Court below, no appeal can be instituted. The Corjioratian of St. Philippe and Lussier, Q. B., 13 L. C. R., p. 499. 9. There is no appeal from a judgment of the Circuit Court, on an appeal from the judglAient of Justices of the Peace homologating report oi experts as to a a)urs d^eau, and under the 24 Vic. c. 30, there is no appeal to the Queen's Bench. Bruneau and Pretmt ^ al., Q., B., 13 L. C. R., p. 498. 10. Execution cannot be issued upcm a judgment rendered against four defendants, if one of them has instituted an appeal, and if such ajipeal be still pending. Brush vs. Wi/son, S. C, 6 L. C. R., p. 39. 11. A factum in appeal may be tiled after the prescribed delay, when tendered at the time opposite party moves to dismiss ai)peal for want of it. Dawson and Belle, Q. B., 3 L. C. J., p. 2.%. 12. (Jne appeal may be instituted from a judgment ren- dered by (leliiult by the prothonotary and from two opposi- tions to such judgment. Waggoner and Richer (J* a/., Q. B., 13 L. C. R., p. 102. ♦' : — To the Privy Council. Bond. — 1. The respondents served a notice upon the attorney of the appellants, that they would put in security in appeal to the Privy Council, on Saturday, APT S5 Appeal : — the 18tli of August, in the Judges' Chambers, in the Court House, security was not put in ou this ilay, but notice was given later on the Saturday, that security would be given in Chambers on the Monday. Security was put in on this day, not in Chambers, but at the Judge's house ; one of the sureties signed the bond in the forenoon, tho other in the afternoon ; and it was held, on motion to set aside the bond for irregularity and want of sufficient notice, that the boiul must remain, but allowing tho parties moving to make such objections to the sufficiency of the security, as they might legally have made when such sec irity was put in. GilA) et aL, and the Beacon Fire and Life Asfi-rance Cuoi])an7/, t^. J3., 10 L. C. 11., p. 402. 2. And when notice was given on the 15th, that security in appeal would bo put in on the 17th, and another notice was given that the same security would be put in on the U)th, nevertheless security was given under the first notice, and the security j)ut in in pursuance thereof, it was found iiregulur and insufficient, the first notice having been rendered of no effect by means of the second, and it was held that an action will not lie against the sureties on a bail-bund set aside in a|)peal for the causes above-mentioned. Smith vs. Egan ,]- aL, S. C, 10 L. C. 11., p. 238. 3. An Aet of the Parliament of Great Britain declared that all laws i)assed by the Legislature of a Colony, should be valid and binding within the colony, and directed that the Colonial Court of Appeal should be subject to such appeal as it was previously to the passing of the Act, and also to such further and other provisions as might be made in that behalf, by any Act of the Colonial Legislature ; held, than an Act having been passed by the Colonial Legi&liture, limiting the right of appeal to causes in which the sum in dispute was not less than iJ500 sterling, a petition for leave to appeal, in a cause where the sum was cf less amount, could not be received by the King in Council, although there was a special clause in the Colonial Act reserving the rights and prerogatives of the Crown. Cuvillier and Aijlwin, S. II., p. 527 ; also, 2 Knapp's Rep., p. 72. But this decision was over-ruled in a case of Marois and Allaire, 1'. C, 6 L. C. J., p. 85, in which it was held that the Privy Council could, in its discrt'tii»n, allow an appeal in a case excluded by the statutes 3i (uo. 111., cap. ti, s. 30, [C. Sts. L. C, c. 77, s. 52,] and 12 Vic, cap. 37, s. 19, [C. rSts. L. C, c. 77, s. 52. Also, Bosicdl and Kilhorn if- al., 12 Moore's P. C. Cases, p. 467. And the princii)al was also admitted in Tlit Quebec Fire Assurdnce Company and Anderson et tU., P. C, 7 L. C. J., J). ir)0, and 13 Moore's llep., p. 477. But this is an indulii'^uf ■•, and it will not be granted unless there be some imp' ilaut principle involved ; and if leave to appeal be granted on all fx /;«/-^e application, the order may be afler- •wards dischafged on the application of respondents, on shewing that the indulgence of an api)eal should not be accorded, lb., 7 L. C. J., p. 151. 4. An appeal does not lie to Her Majesty in Her Privy Coiincil from a judgment of the Court of Appeals, reversing •«.. .'1. i u • ■ ■ ' , . ' 26 A P P > ,i' 1 1 u ' 1 t Jl^ il^ Api'Eal : — ajiulgnient of tho Cuiirl below, l>y ^^•lli(•h tin; appellant's action was dismissed on u (hfrn^r vn (boil, to tlu.' dcrlarutioii. aimard and Toivnscnd, (^ IJ., (i L. C K., p. Ii7. f). Tlie right of appeal to Her Majesty in Iler Privy Cuuiieil, npojj an op|)osition iiiado I»y a (Icfenilatit to the execution of a jiidnnient, is scttleil hy the nature and cpiality of the demand, and not Ity the matters mI, fiirlli in the oppo- sition. Liu^ii/ and Ci'i'ui/, ii. U., I Jj. C. 11., p. 21'A. (). I}y thea[)piul to Her Alajesly in Couiu-il I'roni the final judgnieiit o( the Court of (Juei'n's JJeiich, tin- latter tribunal is dispo.sscssed o( I he eausi'. And a decree of ller .Majesty in Council, purely aiul sin)ply reversing a judgment ot tho Ceal tt) ller Majesty in Her Privy Council, the court is not precluded Irom enlert'ining a petition to reserve leave to appeal, by the fact that leave to appeal was grunted by u colonial court, under the authority of a colonial statute. Miicfarlanc it al., and Lcdairc ct al., P. C, G L. C. J., p. 170. 8. The right uf appeal, wlien depeals from decrees of the Vice-Admiralty Courts, are to l>e asserted within fifteen days i.fter the date of the decree, which is to be done by the pro'or declaring the same in court, and a minute thertM)f is to be entered in the assig- nation-book ; and the party must also give bail within fifteen days from the assertion of the apjteal to answer the costs uf such appeal, p. ^-i, ib. '• : — Vide Certiorari. Appearance : — 1. A plaintifT has no right to question the power or authority of an attorney to appear lor a defendant not legally served with the writ and declaration, the return being of service at the last domicile of the defendant, and that At" App Arb A A r r to A R H 17 Courts, of the le same 3 assig- withiii .er the vver or legally ;ing of Id that Api'EARance: — (li'foiKlant had left thr Proviiico, and had no dotnicile tlicrciti ; and sncli apiicnraiicc luinfr of rccdrd, no st»'|is cm ]iv takiMi U) call in ilio (U'li'ndaiil Iiy advcrtiscnu lit. «>r to ywcovd r.r par/r. Mi Kr/rhfr ttntl Si/njiso/i, iy 1^, H L. C K., |). 31 I, and so also in ]\'/iit/in/ vs. Diinii)/^ it al. (Ulti I Mtihio/ZiiHiL s. C, 6 r.. C. .1., p. -M) 2. A|)|Karancp in a cause need utit bf lili d hftwfcn Iho lOlli day 1. 1 .Inly and the Hist day nf Ani-n.si. (<'.n. ^t. L. C, cap. H'.i, seel. 7!», s. s. 2.] incliisividy ; l-nt il lilt-d in any action adir the last incntitmcd day, dflindt haviu' hccu duly recorded in tlie interim, the pnrty so appearinir must pi>y liie crists iif faking oll'tlie ilefiidt. 7>V7/ rs. Li'onard, .S. C. 1 L. CI, 17. Appendix: — I. f'oniuiissiou of Vice-Admiral under the (.'reat Seal of the Ili<,di Court d' Aiimirally of finjihuid, lo .lames Murray, Captain-(ien( ral and (iovernor-in-C'iiu'f in and ovir tho Proviuco of guehee, in Anu-ricu, daletl }»lh .March. 17ti+, p. 370. .S, V. A. II. 2. Commission nndi-r flu; (iri'at ."^eal of the Ili;_di ^'ourt of Admiralty of Knplaud, appointin<:- Henry Ulack, .lndS, I' 37() ; t^;'-! 3. Commission muler the (iroat Seal of (!reat Uritaiu, for the (rial of oIUmiccs committed witiim tlu' jurisdictitiu of the Admiralty of Kn^daud, dated 30lh Octolur", 1811, p. 3S(). 4. Opinion ot .lndf;;e Kerr, in the f»)llo\vinir cases: — The CamiHus, p. 3S3. S. V. A. 11. Thr Cn/i/strnivi, p. 3SG. //,. 5. The several commissions in eoutiuualiou of the jthovo commission of vice-adnural down to the present tijne, with their respective dates, p. 3!)(). 6. The several .hid' his eujraiieiiH 111 when ofa^e, and before the expiry of the term l()r which indenture was made. Rice vs. Cofi, S. C, 1 L. C. .1., |i. 10. Arbitration: — I. On reference to three r/;/y///r.s-, nr speciiically to any two of them, an award by two is uikkI, il' the third has had due notice of the matters referred and of the several meetiups, especially that in which the award is made; and the award of two is valid, even should the third rel'usc his assent. Mcik/rjohn vs. Youn<^ el % i; 'wL' k- ^ A R D to A R 11 29 rs were taken has no Roy mpaniff rsed in nother ailroad Imwer ol ar- in of wer is tatutes S orapany. AUBITRATIOJf :-^ that they have really l)een sworn. Joieph vs. Oateii, S. C, 6 L. C. J., p. 40, and 1 1 L. C. K., p. 499. 9. A report of arhitralurs will not he set oside on motion (supported by afliilavit) to the elU'ct that their award is not acconiiHiniocI by suti8('atlt)ry evidence that the parties or their witnesses were h>gally sworn, it appearii)j» tliat the oath was administered tu the parties and thoir witnesses by one of the arbitrators. Dii/y et at. vs. Cunnitighnm, fS. C, 6 L. C. J., p. 242. to. A clause or condition in a policy of insurance that in case of any dispute between the parties, it shall be referred to arbitration, the court will not be ousted of its jurisdiction, nor will it compel the parties to submit to a reference in the progress of the suit. Sco t vs. The rhanix Assurance Com" panijf iS. H., p. 152. 11. The agent of the contractors for the construction of a railroad having agreed to a reference to arbitrators and amiubles com])ositeurs, tu settle the value of a piece of land required for the construction of the railroad, the question was raised as to whether the contractors themselves were authorized by the company to submit the matter to arbitra- tion, and if so whether they had transferred such |X)Wor to the agent. In the Superior Court it was held that they had. Meredith, J., dissenting. — And in appeal this judgment was confirmed, the Court being equally divided. The Quebec and Richmond Railroad Contpant/ end Quinn, Q. B., 6 L. C. R., pp. 129, 350, 3G6 & 395, also 12 Moore's P. C. cases, p. 232. 12. A merchant who, in compliance with instructions from the Commissioners of Public Works, purchases lands for them under the 13 »Sc 14 Vic. c. 13, is not a mere manda- tory, but is entitled to compensation for such services ; and he is entitled to have his claim therefor submitted to arbitra- tion under the 8th section of the Act, and a numdamus will issue to compel the commissioners to refer such claim to arbitration. [C«n. St. C, c. 28, ss. 49 and 51.] Young et al. vs. The Commissioner of Public Works, S. C, 9 L. C. R., p. 43. " : — Vide Agent. " : — •* Signification. Architect. — In an action by an architect for drawing plans, and specifications and superintending building, proof as to value of services cannot be made by adducing evidence as to cus- tom to pay a certain percentage on the outlay of the pro- prietor. Footner vs. Joseph, S. C, 3 L. C. J., p. 233. But in this case it was held on appeal to Queen's Bench, that although an architect has no right in the absence of an ex- press convention to recover a commission on the proprietor's outlay eo ttomine, yet the value of his services may be esta- blished by evidence that the allowance of a commission is usual, and is a fair and reasonable mode of remuneration ; in which case he will recover as for a quantum meruit. 5 L. C. J., p. 225 ; and 11 L. C. R. 94. Arrears or Imtbrsst : — Vide HTPOTHfiQui. «• : — " Imtkrbst. .11 \\ \ i I'. •i " \ n ii i ■ 1 \ 1 \ 1 i I V t I It I i li it 1 If' 1 1 1 ■ , ( i r II S h j ^ p i 1 30 A R T to ASS Artuci.ation of Facts: — 1. A gciicrii! iirliciiliitioii of facts will be roJL'Cti'd from the rcconl as contrary to the law, wlik-li re- qiiirt'ssiicli articulation to be clear aiul tlistiiict. The Mohnnn' liituk IS. FtilLncr et dl., and Falkncr ct nl., o])j>ositlier party to a suit to produce an articulatioi. of (iicls, has ni»t the elll'ct of prevcntinsr the case from being proceeded with ami heard. Belangrr (nul M<>;it\(i. B., () J., r. .1., p. (il. ■i. \\ here a jnuty in ti cause has failed to answer tlie arti- culatiim of iiicts tiled by his adversary, the facts articulated will be tal;cii as aili.iitletl. OiCt us vs. Diihw: and CamphvU, S. C, () li. C. .!., p. 1-21 ; and VI L. C. 11., p. :J!)9. And so the deiiiult of the plaiutitilo answer the articulation ol facts haviiii;; llu; ellect id' an admissitjii of the (acts allegtHl, the claim set up in compensation, tlioumh not Ibunde.d on an authentic dci'd, becauu' clairc et luiuidr,, and extiuiriiislied the ailverse claim. Arcltumliuult ^' An/idinUiult, (.^ B., 10 L. C. W., p. ie^i. Also 4. L. C, J., p. 2S4.. f). Hut a party wjII be allowed to lih^ an answer to an articulatiiiii ol tacts, even after the linal hearing of the cause, on payment ol' costs, on aliidavit that such answers had not been [iruduced lhrt)niih an oversight. Bimceil is. Lloyd, H. C, 13 L. V. 11. p. Vi\. Assault: — 1. As to the aulhorily of tlie master of a merchantman to inllict j.unishmeiit on a passenger who refuses to submit to the discipline of the ship. The Friends, p. 118, S. V. A. 11. 2. Assault and battery, and oj>prcssi\-o treatment by the mastir of a ship upon a cabin passenger,— charge sustained, The Toronto, p. 170, S. V. A. 11. 3. No words of provocation whatever will justify an as- sault. Ih. 4-. If provoking language be given, without reasonable cause, and the party oifemled be tempted to strike the other, niul an action brought, the Court will be boimd to consider the provocation in assessing the damages, lb. 5. To constitute such an assault as will justify moderate and reasonable violence in self-defence, there must be an attempt, or oiler, with ibrco and violence, to do a corporal hurt to another. Ih. 6. In an action against the captain of a ship chartered by the East India Company, for an assault and liilse imprison- ment, — a justification on the ground of mutinous, disobedient, and disorderly behaviour sustained. Tlie Coldstream, p. 386, S. V. A. R. 7. In an action of damages for assaidt and battery, words in the declaration charging the defendants with a design to do grievous boilily harm to the plaintitl', do not necessarily constitute an accusation of felony ; and even where the assault charged would amount to a felony, the plaintiff may proceed in an action for damages> without being in the first AsSA J ASSK> ASSKS i ASS 31 Assault : — place oonii)ell('(l to prosooiifp oriniiimlly, ("or (In* nssanlf of which he coinj)laiii.s. LnmnlJir •tnd Clirva/iir, t^. ]]., 4^ L. C. 11.. p. it;o. H. It is iH) nssaiili lor a coiidiu'lor of a railway train to ]int a passcii.Tcr oil' tin- train, who wriMuriilly rclu^ics to pay his line. h'tL'/nd rs. Fitiuuf. "» Ti. C. .1., p. i()7. AssEMni.Y : — Vide IjF.gisi,ativk Asskmiii.v AssEssMi'.Nrs : -- 1. A>scssnit'i)ls luay I'l- rccovcrt'il (roni a party iioliliii.H' laiiil within liic Iniiits ol'tht- city ol' .Moiilrcal. iiiidcr a lease Ironi c:o\ iMMinicnt (r, .\v., iif flf Ci'iiof Monlrrii!. S. (\, -J L. C. .1., p. 'itiO. Conlirincd in appial to (). I!.. Isf heceniher, IS'iS, A!so e\p. Harvey S. C. f) \,. ( , .1., p. ;i7S, Infra Lk.vsk. No. \'l. 'J. 'The iiiii|i'rlakin. sei-t. ,'i. eoinnionly called •• the Special 'lax,'' wh''re the parties make no distinction as to wliat asse>urcr//r ilit Clicva/ier vs. Lo?is:pre, 5 L. C. J., |i. 2'2S. \M later, Smith., J., held that snch special tax was recoverahle. VinsonncanU vs. ITrntlemyn, and in three other cases, (\ C,, .') h. C. .1., pp. 33S-9 ; anil also in a ease of Dumns vs. V/'itu, ih,, and in anotlKM" case oi Jiiil >li r<. Laraic, .S. ('., '•> [j. C. .F., p, 31'0. Also Ihnhrlcl rs. Muir, et. al., C. C, 11 L, (J. II,, p. 4SJ. 3. Local conneils cannot canso the lamls of absentee pro- prietors sitnate within their jnrisdiction to be sold for the non-performaiu e of road-work retpjired by priHis-vcrhaly where snch work had been let onl by snch coinicils to the lowest bidder, nntil afler judgment has been ob'ained against snch proprietors lor the work done by road-olliccrs, as jierniitted by the mnnicipnl aet. And the lettinfj; out of road-work, to which lands are liable, by contract to the lowest bidder, where the work was to be done by private individuals, is not legal, and an action negnfoire to have lands declared free from illegal rates and to havo the councils desist from the sale of lands Icr rates illegally imposed, is the proper mode of proceeding. McDougail and The Corjyorntwn of the Parish of St. Ephrcm d"* Upton, Q. 13., .5 L. C. .!., p. 229, ami 11 L. C. E., p. 3.53. 5. The line of the Grand Trunk Railway Co. is not liable for assessments for school purjtoses; but if improperly assessed it is 4he duty of the Company to object to the ■ i ( '1 :■) iii i; k 32 ASS I ' Assessments: — repartition during the 30 days allowed by law for its amend- ment. Commissaires d'ecolc (V Acton vs. The Grand Trunk Railway Company, C. C, L. R., p. 77. " : — Vide Lease. Assessors: — 1. Assessors appointed under a statute authorizing the corporation of Montreal to apj)oint them, and to grant them such remuneration for their services as the council may deem fitting, cannot recover a qtuintum meruit in an action against the corporation. Gorric vs. the Mayor, tj-c, of the City of Montreal y S. C, 8 L. C. R., p. 236. But in appeal it was lield otherwise in the case of Bouiangct vs. The Mayor, Src., of the City of Montreal, Q. 13., 9 L. C. R., p. 363. And so also in Gorrie^s case. 2. Captain H Miry W. Bayfield, R. N., commanding naval and surveying sc 'vice in the river and gulf of St. Lawrence — his opinion in t.ie following cases: — 1» The Cumberland, p. 79., S. V, A. R. ; 2. The Nehon Village, p. 156, ib. ; 3. The Leonidas, p. 230, ib. 3. Captain Edward Boxer, R. N., C. B., harbour-master and captain of the port at Quebec — his o])inion in the follow- ing cases : — 1 . The John Munn, j). 266, ib.; 2. liytown, p. 278, ib. 4. Lieut. Edward D. Ashe, R. N., .suj)erintendent of the Quebec Observatory— his opinion in the following cnses : — 1. 'J he Roslin Castle and the Glcncairn, p. 306, ib. ; 2. The Niagara and the Elizabeth, pp. 316-320, ib. 5. Captain .Tesse Armstrong, harbour-master of Quebec — his opinion in the case of the Niagara and the Elizabeth, l)p. 316-320, i6. 6. As to practice where nautical skill and knowledge are required. Sir James JVIarriott's Formulary, p. 159, ib. Assignees : — 1. One of two joint assignees may legally receive pay- ment and give a discharge to a debtor of the bankrupt estate, without the concurrence of the other assignee. Molson and Renaud et al., Q. B., 1 L. C. R., p. 4-95. 2. An assignee of a debt has a right to intervene in a suit instituted with his consent, by the assignors, and to cause all further proceedings to be suspended ; but he must bear all the costs of the instance up to the time he so intervenes. Bcrthelet aiul Guy et al., Q. B., 2 L. C. J., p. 209. 3. An assignee of a plaintiff cannot by motion claim to be made a party to a cause, the proper course being to aj)ply by petition, he being a stranger to the record. Rose vs. Coutlee and Coutlee, S. C, 7 L. C. J., p. 284. Assignment : — 1. Militia pensions are not assignable. Chretien vs. Roy dit Desjardins, S. C, 6 L. C. R., p. 465. Claims under the rebellion losses Act, 12 Vic, c. 58, are assignable. Pacaud vs. Bourdages, S. C, L. R., p. 101. 2. The assignor of an indemnity granted by the provincial government under the 12 V^ic, c. 58, is not bound to make good the amount transferred, his claim having been reduced by the commissioners vnder the said Act. Barrette and Workman, Q. B., 6 L, C. R., p. 284.* * The deed did not set forth any guarantee of the sum mentioned, and the court inter- preted the deed as being the sale of uncertain and litigious rights, so this ca8arfy, without specifying in the acte of ccsfsion the total anioiiiil of the sums su trans- ferred, the cessionnaire being < nly bound to pay fjs. in the £, on these sums, and without n I the creditors named in the Of^c having signed the same, ilie cessionnaire is not bound. And the cedatit cannot comp 1 tin; ccs.sionfiairc U) pay the amount of the consideration, without putting the latter in possession of the titles against the debtor. JMacfirlane vs. Aimhault etui., IS. C, 4- L. ('. II., p. 8S.' 5. Question as to what constitutes fraud in an assignment by an insolvent. Sha/inv: and Mnniier dit Lnpicrre, Q. D., 7 L. C. R., p. 1250. 6. In order to set aside an assignment on the ground of fraud, th(; insolvency of the debtor must be alleged and proved. Bcrtiur vs. 'Vachon et id., S. C, 8 I.. C. l\., j). 286. In an assignment absence of tradition and want of con- sideration, are strong indications of fraud ; delivery of possession gives only ris(^ to a presumption of honesty, but non-delivery is strong evidence of fraud. Jlirhaur rt (d., vs. Fairchild et al. and Md/gnn, fS, C., 6 L. C. 11., p. 113 ; and an assignment of the interest of an insolvent in his lease or leases of the premises containing the property sold, does not necessarily amount to an actual delivery (tradition riclle) in law as against third parties. Cununing et al., vs. Smith et nl., 5 L. C. .1., p. 1. 7. Assignments not being made by notarial deeds, are not evidence that sales were not l)0»AJidc ; and the circum- stance of sales being made without warranty, does not raise presumption that such sales were fraudulent, and that because vendor refuses to warrant, it hinst therefore be taken that purchaser knew that there was fraud or that there was no title. Macfarl'.mc et al., and Lcclaire et al., P. C, 12 L. C. R., p. 37i. 8. The assignment of an unfinished contract will not be set aside on an allegation of fraud by a creditor of the assignor, such alleged fraud consisting in the assignment of money due on that part of the contract comi)leted at the period of the assignment. Bcrlinguct and Drnlet, Q. H., 12 L. C. P.., p. 432. But if in such case the amount of money transferred exceeded the value of the work still to be done, the creditors of the assignor might have it set aside lor Iho surplus, lb. '•^ i ■'' •^ • w * This jiidgmeiit wan confirmed in a[>pfal, Mr. .liiMic-u Roilaiul reninrltiriK that iic Would have diiiiiiuih(:d t lie action lur lliu reason, that the sums were in tiguros, whicli gave no surt ot authcntieiiy to the deed. i ' i \ ",'• 34 ASS if i i\ Assignment : — 9. The condition in a voluntary assignment of the estate of an insolvent debtor, accepted by the majority of the creditors, to the effect that the debtor is fully discharged, is inoperative as against a creditor who has not signed ; and such creditor may seize the estate in the hands of the assignees, or of any one to whom the totality may have been sold. And a vendee to whom the assignees have sold the entire estate, the next day after receiving it, being him- self a party to the assignment, is accountable for the estate to a dissenting creditor, notwithstanding that the assignees acknowledged i)ayment in full of the price stipulated, and such vendee, as well as the other creditors, must specify the goods and moneys he has received ; and the declarations in such deeds make })roof against the parties to them, but not ngainst the dissenting creditor. Marfarlane et al., and Mackenzie et al., and E contra^ Q. B., 5 L. C. J., p. 106. 10. And it is no answer to a party to a deed of assignment of an insolvent's estate, on an action to account against the assignees that they had sold the estate to one of the insol- vents who had undertaken to pay the creditors. Torrance vs. Chapman et al., S. C, 6 L. C. .1., p. 32. 11. An assignment, without actual consideration, is only a donation, and the frraid of the debtor is sufficient to dis- possess the donee. The law presumes personal property in the possession of married i)ersons, to be common property, unless disproved by strict proof of individual property in the wife. A subsequent creditor may plead simulation of pre- vious deed for property which never passed from debtor. Marriage is a good consideration for bondjkle stipulations of contract of marriage in favor of the wife. Barbour cs. Fair- child and Milliij;an, S. C, 6 L. C. 11., p. 113. 12. The tissignee of a debt is entitled to intervene on the seizure of the immoveable property of the debtor, made in the name of the assignor, before notification of the assign- ment for benefit of the assignee, and al? ) to be declared dominus litis. And the assignor has no right to contest such a demand nor to claim to be first re-imbursed the costs by him incurred as well on the suit as upon the seizure. lier- ihtlet and G'ui/ ctal., Q. B., 8 L. C. II., p. 305. But assignee is liable for the costs, 2 L. C. J., p. 209. 13. In the case of Cu»/ming et (d. and Smith et al., it was held in Queen's Bench, 5 L. C. .!., p. i, that the estate and effects of an insolvent are the gage comnmn of all his cre- ditors, and that a sale miaiximhonorum, made by an insolvent trder, at common law and according to the principles of the law of commerce, and especially under the edict of King Henry IV. of France, May 1609, is absolutely null and void. Also 10 L. C. E., p. 122 ; also Withdl vs. Young et al. and Michon, Q. B., 10 L. C. R., p. 149. 14. So a creditor is not bound to submit to conditions in a deed of composition between a d»^btor and the raajoriiy of his creditors ; and thus the limitation in a deed by assign- ment requiring a creditor, who receives his proportion of the estate of an insolvent debtor, to give a discharge in full, is inoperative as regards creditors not parties to the deed. And As Asi Atej ASS to ATE 35 n tl . 44'. 16. A debtor who has assigned all his properly !> r the benelit of his creditors, and who afterwards has jiaid his debts, can have the deed of assiguniont set aside and may even seize any ])art of his property so assigned iu the hands of the third persons to whom the judgment u[' retruoessioa has not been notilied, subject probably in such cases to costs if the third i)arty persist in his possession of such projjcrty. Ilagan and WriJit, Q. H., 11 L. C. R., p. 92. 17. A bailiff's certificate cannot le taken as authentic to establish the signilicatiun of an assignment. .SV. J'jhn vs. Delisle, S. C, 2 L. C. R., p. 150. : — Vide Rankruptcy. - " liNSURANCK. - " Partnership. - " Transport. Assignation : — Vide Service. Assumpsit : — 1. It is no answer to an action of assumpsit, for goods sold and delivered, that tliey were not according to order, unless defendant have returned the goods or given plaintiff notice to take them back. Wurtcle ct al. vs. liosirr/l, 3 Rev. de Leg., i». 193. Nor that the defendant j)aid liy a note at a long date unKvss he can establish that plaintiff accepted the note. Laioie vs. Crcricr, i.i. B., f) L. C. R., p. 4 IS. 2. An action of assumj-sit for work and labor duuo and performed cainiot be maintained if it was done under a cou- trrct. McGinnis vs. McCloskiy, S. C, 1 L. C. J., p. lf>3. And money paid in advance on account of the consideration of a contract for building cannot be recovered back by action of assumpsit. Ingham vs. Ki/kpul/ick, S. C, 3 L. C. J., p. 282. 3. A partner has no action of assumpsit against his former partner after dissolution of the partnership for pretended debts paid by him, or for money taken by him from the partnership funds. IVinrber vs. IHlon, S. C, 4 L. C. J., p. 37. 4. In iin actioil of assumpsit a defendant may bo asked whether he gave a note for the amount claimed although such note were then prescribed. liag<^ ct al. vs. Wurtete, S. C, 6 L. C. J., p. 30. Atermoizment :— 1. Under a deed of composition or atcrmniement the failure to pay a second or subsequent instalment, the first being paid, gives the creditor the right to sue for the whole balance due. S. C. Brown et al. vs. Ilartigan, 5 L. C. J., r *!• 2. And where the period fixed for payment of the com- position had elapsed, without the same liaving been paid, the debtor was condemned and held liable to pay the full 3* ^ m \\ n I : 1 I 1 §6 ATE t 1H , I; 'v n Atermoiement : — amount of his debt alllioiigh he had teinlored the full amount of sucli composition prior to the institution of the action, liraudry ct at. vs. BarciUe, 1 Rev. de li^f?., j). 33. Also in a case oi' Atkinsnn vs. Neshitt, 1 Rev. do l^dg., p. 110, it was licld tlitit the torm of pnyment fixed by an act of atermoiement, is a condition resnlvttnre, wliich annnlls the act entirely withont its bfing so declared eujustur, and whioli gives the creditor the right to sue on tlie original debt (/f />/c/«o. Rut it is otlu-rwise if the delay be in any way owing to tlic limit oftlif creditor. 3, And A\ here npon a covenant in the doed of composition founded upon the delivery at n certain time nnd pliiee, of two promissory notes, endorsed by a third jtarty to whom the amount due should be nssigncd, the delay of two days incurred in the delivery of the notes will not deprive tlie debtor of the benefit of the composition, the creditor not hnvinn' presented b.imselC to receive the notes and execute the assignment, but having, on the contrary, made known his intention to present liiuiseH'to receive the notes in (jues- tion liiter, by reiison of his rt sidenee at a distance from the ))lac«' where the noti s were to be deliv(>red. K//ii> and lirciiLri/, (i. ]\., 1 L. (;. II., ]). 306 ; and so also in Bvudrcau ditor, in contempla- tion of a deed of composition, and as a ])reference to such creditor without the knowledge of the other creditors, is null and void, and will be declared so even as against the com|X)Uiiding debtor himself. Grecnshields vs. ritunondon, S. C, 3 L. C. .)., p. 21.0. iiut in the Queen's Rench this judgment wns reverseil, the note not being for the defen- dant's own debt but (or one lor which he was security Ibr a third party, and because the agreement was not prejudicial to the other creditors, who did not complain of it. (Jreen- sliields (J- cU. and Vlamondon, 10 L. C. R., p. 251. ATT 37 rutes 1 lh<' ion en .. 1'24. 0(1 l)y :on as not OS latter notes other C. 7 y con- einpla- such tors, is list the london, }h this defen- y for a ndicial (ireen- Attachment: — 1. Attachment awarded apuinst a nuisler for taking out of the jiirisdictiou of the eourt his vessel, which bt^d been regularly attached. The Friends, y. 72, S. V. A. R. 2. Application (or an attachment lor contempt lor resisting the process of the court, rejected ; the statement of the officer being contradicted by the allidavits of two other per- sons present at the arrest. The Snrah, p. 8(5, ih. 3. Application lijr an attachment (or a contempt against a magistrate, (irst seized of a seaman's suit, for having issued H warrant, and arrestnl ihi; seaman whilst altending his* pro«'tor for the j>nrpose of bringing the suit, rtjecled. The Imhclla, p. \'i^, if>. •!•. Atfachmenf ikcrced iLr contiiiip*, in obslruciing the marshal in the execution of the process of the court. The Delta, p. 207, ib. Attorney: — 1. 'J'he attorney ad litem is responsible to the sherifT for his fees and disbiirseiiifiits on writs of execution issued on his /?^/f, and two atloruies in partnersliip arc jointly and severally liable Ibr such ftes and disbursements. Jioston and Taylor, Q. B., 7 L. C. II., p. 329. and I L. C. .T., p. 60. Hut an attorney is not liabh; (or the indemnity due to witnesses, summoned by him at the re'., 3 L. C. H.. p. 109. 2. The substitution of an attorney (i>r the appellant in lieu of one who previously represented him, is an acquiescence in all proceed iiigs of the (irst attorney, there being no desareu, and this iiotwithstatiding any irregularity in the proceedings. Burroughs and ]\h>hun rt al.,^l. li.. 8 Ij. C. R., p. 49+. ;]. Where a su.iigestion ol the diatli of one of several defendants is (iled oi'p'cord, a mntioii to compel llu' ninain- ing detendants to substitute an attormy in the place o\' tho attorney of rt'cord, one of whom had been promoted to the bench, will not be grantc^d until such Mijrijesliou is n moved or dis|K).sed of. Sauiaaeau is. Rolierfson et al., S. C i» l>. C. R., p. 224.. 4-. When one of two partners, attorneys, leaves the 'list rict, the other can continue to act in the cause in his iiiilivKJiial name, without the necessity of a reirular snbstitiiiHin. Tidmur.sh vs. Sfepliens er al., i>. (\, I \j. (). ,1., p. I(>. and (• L. C II., p. 19i, And so also it wis held that ser\ ice upon one of the partners, tin. other having been raised tn tlui t»ench was sutMcient. in the ease i>(' MiCa/thi/ ami Hart, Q. n., 9 fi. C. K.. |). :j!>'>. And wh.-r • «»ne of three attor- neys of r»'corvl is deail. /irrrvi/if/nfi (I'ln^taiicr will he [T'lperly demanded in the name el IIk; two survivors. De Jivaiijeii vs. RxHlrisitir, S. C, 7 fj. ( . .1.. p. 4;{. 5. An atturney iii a eaiise is tloinnius litis, and he eamiot be iiitei ' r- d with hy any arraiiiiiinenl entered iiti* with his own e'l lit hy the oppiisite p r'y or his alloriny, witlidut his sanction O'Canndl vs. tlie Cm pmaiinn af ]\Iunirrid,i>. C, 4. L. C. .T., p. .')ti, and 10 L. C. K., p. 19. 6. An attorney has no rijjht to a lee for a re-liearing, unless the re-hearing takes place by the onler of the court, and to enable the court to be more fully iiili'rnied of the ca§_e. Bosweil vs. Lloyd, S. C, 13 L. C R., [i. IS. .•H 38 ATT to A U C Attouney : — 7. A prno.lisinp: attorney cannot become Imil or fjnroty in liny jiroiMMclinpfs cogni/;\I)lo by Siiprrior Conrt. Hnutirr and (I'ifturds, S. C, ii L. C. R., j». f)7. Nor in Appcnls from the Superior Court to the (Queen's Hnnch, without cnntrn.voninf>; tlie (jth rule of practice. Lcmelin and Lame, *.}. li., 10 L. C. R., p. 1!H). 8. A\'here an alforney has represented a party in a can.se subsequent t(i jiidgintMit, another attorney "d litnn cannot take proceed inii:s in tlie cause witlioiit a sidtslitnlion, and on nn)tion of fh(> first attorney nil proceedin<;s of the s»^cond attorney will be rejected from the record. Gillrsjne ct al., r.v. Spr'nixi:, S. ('., b L. C. .1.. p. -IH. J). And substitution ofa now' attorney will not be p[ranted nn)e>s there Ik- (nil revocation of the attorney of record ; so w iiere oU(i of thni' co-p!aiiilills nt;uh^ an iicte of substitution, the tit Ik r two not i)einN;uiiine a M'itiiess personally, nnr even as counsel lit /.v;c/«'.r if he be 11 praetisin<^ barrister. Hamsai/ vx. David ami nV//.7r, S. C, G L. C. .1., p. 293. • : — I'/iie An\ ocATKS. :~ '* ]Jaii,. :— " Ron p. : — " Ckhtii'icati: ok Skrvice. : — '' .TtDiJiMr.Nr. Attornkv (i'eneiiai,: — 1. During' the absence of the attorney-general, the powers atui duties of the oflice devolve upon the sol icitor- giMierai. T/ii Dumlrirsshirc, p. 21."), S. V. A. R. 2. 'file attorney-friiicral appearing for Her Majesty, cannot apjie:»r by attorney, and where an inlnrniation was sip;ned by procamirs dii j)roci//-('ur-iJirn-ra/ pro r'';xind, the infirmu- tioii wdl be dismissed on excej^tinn a ta forme. The Attorney lie Herat pro remind, is. Laviolette et al., IS. C, 6 L. C. J., p. 3(»9. .\ittion: — W'JKM'ea )iurchusci ri'fuses to pay in complian're with the coiulilions (il'sale, the ^nuxls. after notice to purchaser, may be uirain s.iid at auction, and he will be liable for any diiii'reuce in the jirice, if less than at the first sale, and all costs and (;har'4es. Maxlnwi ct uL, vs. Stafford, S. C, 5 L. C. .i., p. 10;.. Aictionkkr: — 1. Wiu-re an auctioneer puts up a registered vessel furs-ale, wiMioiit naminir his principal, and the same is ndjudired, witlnnit any cNpress condition as to the time and luaiiiier of e.\ecii(ui!.'; tlie written transfer of such vessel, the auctione<'r caiumt recover from the purchaser the sum for <( wi'if irvcii il;u Mime il^n' a\ eiK/iietn siHinfiH. It is almost iii'illes» li. M , .h.i! ill.- pniiiav iiid pii"li(.-ii,>,lili' nylil ot n [)iii'ty, is to appear ill Ill's owtt 1 sue. H'li liiiw IS ill s citsj' Id 111- i('ci>iii'il»"i Willi lii/iiii \, IStil, wliere llie parties settled in fraud of tlttt iiitoriieys oftlie Ucfeiidaiit i llolh dii-isioii.s may be wrong; but both cannot be right. .- « AUC to BAI 39 Auctioneer : — wliicli the vessel wnsatljiulged, unless ho i)rociire and deliver to the piirclmaer a Icj^til transllr of tluj vessel «'xeculed by the owner or by sumo person lej^ illy {uilliuri/ed llir Iho purpose, according to the rec^uirements ol' the registry act. Hums vs. I/urf., V. H., n. G3. 2. On an nction for a slatenient i]\u^ ow a. prix dr irtite, defendnnt cannot avoid piiynuMit hy setting up (hat the ancti(jneer from whom he piirehiised, di scrihrd the lot iis an cmpltiament , iVc, with }nitni/c)i right on guhle of hiiildings hi'luiiging to C, the noturial ilced snlisctjuently pMsscd making no mention of such right. McKrnzie is. JosrpU, S. C, 13 L. C. Jl., ji. KiS. 3. An iuictioncir ri leiving the goods of ;in i solveiil p:ir(y for sah', ciimiot oli-st't the proc'cds agsiiust a del)t due to himself, but is liable to account to the creditors ol" the insolvent. Fisher vs. Didyfott and Scuff, S. C L. K. p. 4'4>. 4. An auctioneer is bouutl to diliver tn his principnl the notes he may have reoeivi'd lijr the goods ho has soKI whe- ther he guaiiMitees the sales or nut, and if lie s(dls goods for his itrinci[)al on ](in'clia.s(;r.s' notes, he has no riylit to accept from the i)urchnser a note which covers the price of jroods belonging to nuother. Sificiuif vs. Lrntun^ ct u/., Q. H., 5 L. C. .1. p. '2+7. 5. The imdertaking to guarantee sales by an fiuctioneer or otluT agent, where notes an- given in paymi'UtJs reasonably int«'rpreted to create a liability to endorse such notes. J/). Aval : — 1. An aval may be nnule by a signature .w//s troj'sc, if the matter for which the note is given bo of a commercial nature, ratersnn ct al. "ndPain, .S. C, 1 L. C. U. p. 219. 2. The signature of the person, not the paye*-, nor subse- quent holder under the pay -e written in blank o\\ a promis- sory note, may be consideriMl an aval ; and the donneur d\ival, as such, is not entithul to notice of protest. Whether such signature in blank is an aval ot not is to be decided by the jury, Mcrritf, vs. Lynch, 8. C, 3 L. C. .T., p. 276. 3. The donnciir d\ival is not entitled to i>rotest. Pariseau vs. Ouellcf, 8. C, L. R., p. 57. Vide Supra, No. 2. AvEu: — Vide Admission. Bail « Bail -Vide Lease. -Etnj'hileofique. — Vide IIvPOTiifeauE. -By Attorney. — A ))ractising barrister or attorney cannot be- ct)nie bail or surety in any proceedings cognizable by the Superior Court. Ilnutitr cud Gi/ii^ras, 8. C, 3 L. C. R. p. 57. Nor in ap])eals from the Superior Court. Lemelin and Lartte, Q. B., 10 L. C. R. p. 190. -To Sherifl'. — I. Bail to a sherilffbr a defendant on cipias ad respondefidum, is only liable for the amount stati!d in the bail bond, and not for the full amount of the juilgment, ren- dered against such defendant. Josrph vs. Cuvillier, S. C, 5 L. C. R. p. 94.. 2. A motion to put in special bail after the expiration of eight days from the return day, which does not set forth special grounds in support thereof, cannot be received. Begin et al, vs. Bell et al., S. C, 8 L. C. R., p. 138. '\ I'l ill •( , I ' 'i AO B AI Bail :— 3. Sppcinl I)uil mny he put in evon nfler judgmpnt and nAer llie l)iiil to tho sherifr liave Im^cii sued, imd this on petition of tlie hail thcniselvos. Lrfrhrre vs. Valine, S. C, 3 L. C. J., p. 117. and 9. L, C. K., p. +9. And also in another case of Cam j>l)eff and Atkins U al., Q. 11., 9 L. C. II., p. 74. And ill anntliercnse, though not without diflicuUy, and only in eoinplianco with the dicision of Iho Queen's Bench, that a jn'tition fi; ]Mit in s|ioeial hail will he granted after tht; eight (hiys after 'he returrj has expired ; and even at any reasonahle time therearterdejiendingon cause shewn and diligence uiiide. Mites rs. Aapinall, S. C, 7 L. C. J., p. IS-l". Hut at Nhcrhrnoke it was held that it would not he granted after judgiucnt or at any time a/(\er the expiration of tlie eight diiys unless special cause was shewn. Vannevar et uL vs. Be Cmirtnay, }<. C., 7 L. C. J. p. 120. •l". The hail of a parly is an incompetent witness on his behalf. 7Vir So/'/"a, p. 219, S, V. A. R. Bail: — In Criminal cases.— 1. \N here a party accused of perjury has been arraigned and jiK'adcd " not guilty," and no day cer- tain has been fixed for the trial, and no forfeiture of his hail has been declared, tho mere failure of the party when called upon to answer in the term subsecjuent to that in which he was arraigned eantjot operate as a forfeiture of such bail. The Attorney (tentraLprn Remind, vs. Beauli'U, S. C, 3 L. C. J., p. 117. Also tho ease of Crotcau, 9 L. C. II., ]>. 67. 2. A prisoner confined in gaol upon a charge of a capital felony, may be admitted to bail after the finding of a true bill by the grand jury, if, upon the reading of the depositions against him, those de|>ositions are found to create but a very slight suspicion of the prisoner's guilt. Ex parte Maguire, 7 L. C. 1{., j». 57. Bail Bond: — Vide Appeal. Bailleur nE FONDS. — 1. Privilege o[ hail leur de fond s will bepost[K)ned to the hypotJirf/ue of an ordinary judgment creditor whose judgment was registered before the deed of the vendor. LeMesurier if al. vs. McCaw, and Dolan, OpjK)sant, S. C, 2 L. CI., p. 219. 2. The special privih-ge of the bailleur de fonds is preferable to the general privilege' of the |)hysician lor frais of the last illness upon the proceeds of immoveable property, evoa though tlierc should be no moveables out of the proceeds of which such physician can be paid. Tuschereau vs. Dela- sorgendiere and I'roulx, ?>. C, 9 fj. C. 11., p. 497. 3. The erpirtise made by a builder or architect at the time of inscribing his privilege, may be attacked by the bailleur de fonds, and the lattarte Lane, S. C, 11 L. C. R., p. 453. Bet : — 1. A bet touching the result of an election is null, and a note given for it is also null. Diifresne vs. Guevremont, C. C, 5 ■ L. C. J., p. 278. Even in the hands of an innocent holder. Biroleau vs. Derouin, S. C, 7 L. C. J., p. 12S. 2. Betting on horse races by the owners of the horses is not contrary to law, and such bets can be enforced by suit. RickaJty vs. Sutliffe, S. C, 13 L. C. R., p. 320. Betterments : — Vide Improvements. Bigamy : — On an indictment for bigamy committed in a foreign country, it is necessary that the indictment should contain the allegations that the accused is a British subject ; that he is or was resident in the province, and that he left the same with intent to commit the offence. Regina vt. McQuiggan, Q. B., 2 L. C. R., p. 340. Bill of Exchange: — 1. The drawer of an inland bill of exchange is quoad hoc a merchant, and a cajyias ad satisfaciendum may be had upon a judgment thereupon obtained against him, under the Ordinance 25 Geo. HI., c. 2, sect. 38.* Georgen vs. McCarthy, S. R., p. .53. 2. The drawer of a bill of exchange is liable to the damages . provided by the laws of the country in which it is drawn, and no other. Astor vs. Benn et al., S. R., p. 69. i \<'i^ '^ h r, *< '.'i |.:.IV!;t|,H * No longer in force. C., cap. 87, sect. 7, n. s. 3. Vid* infra Whitty vi. Rourkt, vo. Capias ; also Con. St, L. 44! BILL ill !l ^ ! !• I. 1 i > m i II B11.L OP Exchange : — * 3. By the usage of Canada, and in the absence of legislative enactment, all bills of exchange are allowed three days of grace after becoming due ; and to bind the indorsers, demand of payment ought to be made on the third day of grace, with protest and signification, and these formalities are to be observed even when the bill is made payable at residence of the holder himself. Knapp et al., and the Bank of Montreal, Q. B., 1 L. C. R., p. 252. 4. The acceptance of a bill of exchange, by the officer of a society, if not within the sco[)e of his regular duties as such officer, is, unless specially authorized by the society, not binding upon it. Brouning rs. The Biitish Amencan Friendly Society, S. C, 3 L. C. J., p. 306. 5. The secretary and accountant of the Montreal and Cham- plain Railroad Coni) any has no power to accept drafts on behalf of the company, and moneys covered by such drafls may be seized by process of saisie-arrSt notwithstanding such acceptance. Ryan et al., and the Montreal and Cham- plain Railroad Company, Q. B., 4 L. C. J., p. 38. 6. The holder of a Bill of Exchange through the drawer has an action against the acceptor. Rowbottom vs. Scott, S. C, L. R., p. 32. BitL OF Lading : — 1. An affreighter cannot proceed by way of reven- dication as in the case of an unlawful detainer, against the master of a ship, when such aflreighter and master cannot agree as to the quantity of goods shipped, and as to the bill of lading to be signed. Gordon et al., vs. Polloclc, Q. B., 1 L. C. R., p. 313. 2» A clause in a bill of lading to the effect that the carrier may at his option, tranship at Quebec, and forward goods to Montreal, at ship's expense and merchant's risk, does not relieve carrier from liability arising from negligence and want of care in handling and landing goods at Montreal. Samuel vs. Edmonstone et al,, S. C, 1 L. C. J., p. 89. 3. A bill of lading, as between the parties thereto, may be explained by parole testimony. Fowler rs. Stirling et al., S. C, 3 L. C. J., p. 103. 4. The vendor of merchandize, who is named the consignor in the bill of lading, is nevertheless not liable for the freight of said merchandize, which he had delivered to vendee's agent before shipment according to contract and to the knowledge of the ship's agent. A bill of lading may be transferred by mere delivery, without endorsement, lb. : — Vide Evidence. Freight. Insurance. Bill of Particulars : — A plaintifT will be compelled to give parti- culars of demand, although the action be for the balance of an account acknowledged. Lahhe is. M'xkaizie, C. C, 10 L. C. R., p. 77. But omission to file a bill of particulars, even where defendant is in gaol under capias, will not entitle defendant, under the 30th rule of practice, to dismissal of the action. Henderson vs. Enness, S. C, 2 L. C. J., p 187. And a bill of particulars may be filed at enquSte, if defendant, instead of moving to dismiss plaintififs action^ U « BILLto BOR 45 Bill op Particulars : — pleads to the merits. Westrop vs. Nichols et al., S. C, 2 L. C. J., p. IQ*. And where defendant, after demand of plea, moves to dismiss action for want of particulars of demand, and plaintiff immediately moves to defer his claim to the serment decisoire of defendant, the plaintifl''s motion must be granted and defendant compelled to answer. Le?ifesiy and Metivier, Q. B., 10 L. C, R., p. 199. Bon : — The amount of a hon payable on demand by a Lower Canada debtor to a foreign creditor, is recoverable with costs, without any proof of demand before institution, and although defend- ant tenders the amount of the hon with the plea. Shuter et al., vs. Paxlon ct al., S. C, 5 L. C. J., p. 55. • C Bond : — In an action on a bond signed by an attorney whose autho- rity to sig'n the same is impugned by the plea, such plea must be supported by affidavit, under the requirements of the 87th section of the .ludicature Act of 1857, 20 Vic, c. 44, [Con. St. L. C, en p. 83, sect. 86, s. s. 2.] The Attorney General, pro Regina, vs. McPherson et hi., C. C, 2 L. C. J., p. I'Jl. But in a more recent case against the same defend- ants, the reverse was held, C. C, 2 L. C. J., p. 182. Books op Account : — Books of account, titres de creance, and papers belonging to defendant and in his possession are insaisissahles. Fraser vs. Lois .lie, S. C, 5 L. C. R., p. 299. •* : — Vide Execution. BoRNAGE : — 1. In an action en homage, if the defendant denies the plaintiff's right of action, he will be condemned to pay costs. Weyvicss et al., and Cook, Q. B., 2 L. C. R., p. 486. But when a defendant pleads his willingness to bound and prays actc thereof, and the action has been brought without previous notice, the plaintiff will be condemned to pay costs. Slack and Sfiort, Q. B., 2 L. C. J., p. 81. And so also where the defendant prays for the dismissal of the action with costs. Datisereau et al., vs. Prive, S. C, 1 L. C. J., p. 283. 2. An action eti homage cannot be defeated by the existence, during ten years and upwards of a mur mitoyen along a portion of the division wall, and of a fence along the remaining portion thereof. Mncfarlane vs. T/iayer, S. C, 2 L. C. .1., p. 204. Nor will such action be defeated by the existence of a fence between the two properties during 20 years. Devoyau and Watson et al., Q. B., 1 L. C. J., p. 137. A cloture d''endiarras is not evidence of a previous homage. Lanouette et al., and Jaokson, Q. B., 7 L. C. R., p. 362. 3. In an action en homage where the plaintiff's title shewed that there was a deficiency in superficies of 2| arpents, while defendant's title shewed that his land was of a uniform width of 2 arpeuts, and where line fences and ditches had been run to a certain distance, the direction of such fences and ditches will be followed, but so as to give * It is to be regretted that the Jiidgti did not cite some (^ase in support of the alleged practice of the Court, whii-h would seem to be in violation of tiie equity ol the rase. A man promises to pay £b on demand, and the creditor who chooses to make this demand by the expensive process of a suit at law, shall have his costs, there being no laches on the part of ibe debtor \ b the distinction because the plaintiff lives tit Mew York— a courtesy to a foreign creditor ? ,i <-■■'• i. "r? -. ...... C W ( 1 1 1 \ ll ' ' , J!' i !' ■ i M "■1 I ," ! i 46 BOR to BUI Brevet Brevet Broker \ I \ t BORNAGE : — defendant his full width of two arpents. Lambert vs. Ber- ' trand, S. C, 3 L. C. J., p. 115. And where it is established by the surveyor's report thut a wall or fence encroaches on the plaintiff's property, the defendant must pay the costs of the action ; but the costs of Ihs survey will be equally borne between them. Macfarlane vs. Thayer, S. C, 2 L. C. J., p. 204.. 4'. In an action en homage the defendant canno^ be con- demned to compel his neighbours to bound with him. Fradet vs. Labrecque, S. C, 8 L. C. R., p. 218. " : — Vide Action Petitoire. Bottomry : — Vide Interest. Breach of Promise of Marriage : — Vide Commencement de PREUVE par fiCRIT. : — Vide I'romissory Note. d'Invention — Vide Letters Patent. : — 1. A broker assuming to be the mutual agent of buyer and seller, and accordingly signing bought and sold notes, will not be presumed in law to be such mutual agent from the mere fact of his being a broker ; and in the absence of suffi- cient evidence of his being authorized by both parties to sign such notes, they will not constitute a valid memorandum in writing within the Statute of Frauds. Syrtie et al., vs. Reward, S. C, 1 L. C. J. p. 19. 2. In an action of damages for refusing to take delivery of and pay for goods, bargained for and sold through a broker, proof of the contract cannot legally be made, without the production of the bought as well as the sold note, or without due notice to the defendants to produce the bought note. Gould et al., vs. Binmore et al., S. C, 6 L. C. J., p. 296. Brothkl : — Rent cannot be recovered by suit for premises leased as a house of ill-fame. Garish vs. Duval, C. C, 7 L. C. J., p. 127. Builder : — 1. A builder is liable for the vices du sol, owing to which certain houses constructed by him have given way, although working by plans and specifications under the directions of an architect in charge. Brown vs. Laurie, S. C, 1 L. C. R., p. 34-3. Confirmed in appeal. 5 L. C. R., p. 65. 2. A builder has a special privilege in the nature of an hypotMque upon any building erected by him and for repairs. But this privilege will not be allowed to the prejudice of the other creditors of the proprietor, unless within a year and a day, there be something enregistered to show the nature of the work done, or the amount of the debt due thereon. Jourdain vs. Miville, S. R., p. 263. And a builder is without such privilege on the proceeds of real estate, who has not complied with the formalities prescribed by the 4 Vic. c. 30, sects. 31-2, (C. St. L. C, pp. 352-3,) requiring a,proc^S' verbal to be made before the work is begun to be done, / ■ establishing the state of the premises in regard of the work about to be done ; requiring also a second procis-verbal to be made within six months after the completion of the work, establishing the increased value of the premises ; requiring also that the second j9rocfs-v^6a/ establishing the acceptance of the work be registered within 30 days from the date of M BUI to BY 47 IMENT DE Builder : — snch second procis-verhal, in order to secure such privilege. Cliipin vs. Ntigie and McGinnis, S. C, 6 L. C. J., p. 196. « : — Vide Baillgur de fonos. Building Societies : — 1. The right of convoking meetings connected with building societies created under the 12 Vic, c. 57, 14» and If) Vic, c. 23, and 18 Vic, c IIH, [Con. St. L. C, cap. 69 ] is vested in the president or secretary of such associa- tions, and the requisition should be addressed to the presi- dent and directors. This recjuisition should indicate the objects for which the meeting is convoked. The 1st section of the 18 Vic, c. 116, has not abrogated the dispositions contained in the 7th section of the 12 Vic, c 57, [Con. St. L. C, cap. 69, sect. 7.] The by-laws of these associations should be registered in accordance with the 12 Vic, c. 57, sect. 5, [Con. St. L. C.,cap. 69, sect. 5.] 2. The directors should be elected one by one, and not in block. 3. The president should preside at all these meetings, and it is while he so presides that the by-laws should be passed or altered. Jodoin vs. Dubois, S. C, 3 L. C. J., p. 325. Bt-law: — 1. A stockholder in a joint-stock company can bring an action of account against the corporation, and thereby con- test the validity of a by-law made by a board of its directors. Keys vs. The Quebec Fire Assurance Com2)any, S. R., p. 425. 2. On certiorari it was held that a by-law of the Corporation of Montreal concluding in the following words : " No person shall hereafter construct any wooden buildings of any sort or description whatsoever within the limits of the said city and any person infringing any of the provisions of this section, shall be liable to a penalty, &c." must be so interpreted as to make it applicable only to proprietors of the lots or buildings and to workmen employed in erecting the same. Ex parte Lahaye et al., S. C, 6 L. C. R., p. 482. And so also in ex parte Ledouz, S. C, 8 L. C. R., p. 255, it was held that if there is no evidence sent up to the Court above that the party accused was a proprietor, or only a workman employed by the proprietor, the conviction will be quashed. 3. The legality of a by-law may be examined on a motion to quash a conviction predicated thereon. And a by-law, imposing a penalty of i£5, and imprisonment for 60 days, in default of payment, is in excess of an authority granted by statute to impose by by-law a penalty not exceeding J65, or 60 days imprisonment, and is therefore illegal. Ex parte Rudolph vs. Tlie Harbour Commissioners of Montreal prose- cutors, S. C, 1 L. C.J., p. 47. 4. The by-law of the Corporation of Montreal affecting to impose a duty on the agents of Foreign Insurance Companies doing business there is null and void, the 14 & 15 Vic. c. 128, not having conferred that power. The Mayor, SfC. of the City of Montreal, and Wood, S. C, 3 L. C. J., p. 230, and 9 L. C. R. p. 449. 5. The sale of fresh pork in a shop in the city of Montreal, such shop not being in any public market, is not a violation *' ' • ^ ' of the by-law of the corporation of Montreal, No. 196, of the '<'m I 1 1 n ;i ! y {i i I •y ■ it- iri >l i : li !- f48 BY to CAP t ; ■ By-law : — 22d March, 1848, which imposes a penalty for the sale of such articles, " dans ou sur aucune rue,plnce, ruelle ou autre place pu^iique de cette citif que sur un des dits ntarchis publics, etc^ Exj>arte Daigle, Petioner for writ of certiorari, S. C, 5 L. C. J., p. 224>, and 11 L. C. H., p. 289. Also in a case of Ex parte Forest, No. 800, S. C, 29th June, 1861. By-road : — A by-roud leading from a public road to a toll-bridge, must be madu and maintained by the occu]uint of said toll- bridge, and in cuse of neglect on the part of such occupant, the municipal corporation, within wlioso jurisdiction the by-road lies, can recover from such occupant the amount paid by them in repairing the road. Corporation of the Paridi of Ste. Rose vs Leitroiwn, S. C, 2 L, C. J., p. 1 18. ) i Canonical decuee:—V«VZ« Certiorari. Capias : — 1. A party arrested under a capias will be discharged, if it be proved that the cause of action arose in a foreign country. Bottomley et al,, vs. Lumley, S. C, 13 L* C. R., p. 227. 2. And a debt for goods purchased in England, and paid for by bills drawn upon defendant at Toronto, but payable at a bank in England, is a cause of action arising in a foreign country, within the meaning of tho statute, lb. Confirmed in appeal. 3. A debt arising out of a contract made in Scotland to deliver jmssengers' luggage in the port of Montreal, and where delivery was not made, is not a cause of civil action which has arisen -in a foreign country. Macdougall vs. Torrance, S. C, 5 fi. C. J., p. 148. Therefore a capias may be issued U|X)n it. lb. 4. But the colony of Barbadoes is a " foreign country," . within the meaning of the 8th sect. C. Sts. L. C, c. 87, and consequently a capias will not be maintained for a debt arising there. Trobridge et al., vs. Morange^ S. C, 6 L. C. J., p. 312. : — Affidavit. — 1. The sufficiency of an affidavit for a capiat cannot be tried on petition. Chapman vs, Blennerhasset, S. C.,2L. C. J.,p. 71. 2. The words *♦ plaintiff, book-keeper, clerk or legal attor- ney," in the 25 Geo. III., c. 2, [Con. St. L. C, cap. 87, sect. 1,] are not sacramental. An affidavit made by the cashier of a branch bank, plaintiflT, is sufficient without taking any other quality. Coates and the Bank of Montreal, 2 Rev. de L^g., p. 328. And an affidavit for a writ of capias ad respon- dendum, made by the book-keeper of a branch of the Bank of Upper Canada, is sufficient. Bank of Upper Canada, vs. Alain, S. C, 5 L. C. R., p. 318. And it is sufficient that he should take the quality of book-keeper in the heading of the affidavit, without its being again mentioned in the heading of the affidavit. Hogan vs. Hoskins, S. C, 12 L. C. R., p. 84. 3. On the face of an affidavit for a capias, it is necessary ; to state all that is required tg give right to the process, leaving nothing to be inferred. Nyevs.Macaslister, S. C, > : L. R., p. 27. So it must be mentioaed in the affidavit « 1 CAP 49 Capias : — whor« the debt was contnu'tcd. Brisson vs. McQi/rr/i, S. C, 7 L. (/. J., \\ 70. JUit. it is not lu'crssury to iillcir*' llmi d(>roiui)iiit livinji out of the rroviiii-o lias |)ro|KMly williiii it. Darling vs. Comiti, S, V., L. K., \\. 105. Ami so it is ncces- siiry tiiil)»tiiiitiully to alhgr that the dcloiulaiit i.s about to U'HVO the I'roviiicc.', with ii!t» lit to di'l'iaiul. ami mt that such is iilaintiir's Micf. Ulloist vs. liutt.s, S. ('.. 10 li. C. K., p. 204'. Ami if the cssciiliiil iillcp;utioiis b»^ set lnrtli in the disjunctive instrail of tlu; i-onjuiietivo, llie aliidav it will be lu'ld to bo bad and tho capias will be qiuishi-d. Ta/bot vs. Donne//}/, S. C, 11 L. C. J{., j). ft. 4. And the uflidavit must contain the allegation of the personal indebtedness of defendant. Altxam/rr rs. MclMch- /o;i,S. C, 1 L. CI., p. f). .'). But it was decided at Quebec that where the affidavit shows a personal indebtedness, the allegation that the defendant is " personally indebted," is not essentially neces- sary. Lampwn vs. Smit/i, i>. C, 7 L. C. 11., p. 4"2r). Nor is it necessary to say that without the benelit ol sueh w rit, the plaintiti'niuy lose his remedy. Urrri/ vs, Mai/, S. ('., 13 L. C. R., p. 3. And " of the city of Kini-stoii, Canada West," is a sufticient indication ol the dnuicile of |ilaintiiK ///. 6. The allegation in such allidavit tluit the defendant is personally indebted to the plaintiir for work done by the plaintiff lor the defendant and fi)r wages and salary earned in the service of the plaintiff, is sullicient, although it is not stated that the work was done at tlu; instaiu-e and re(piest of the defendant. Jontras rs. Dindopy t*>. C, 7 L. C. 11., p. 420. And so also it was held in the case oi' Mac noma ra vs. Meagher, S. C, f) L. C. .1., p. 49. Jiul in this last case there was a further admission o( indebtedness alleged. 7. An afliiiavit which only states that the defendant is indebted to the ])Iainliir in a certain sum, for board and lodging during six mnnths and Ibr articles of clothing furnishfd, is bad. CidhhcH vs. Bun-ctt, S, C, 1 L. C. K., p. 212. And for goods daninged on board a ship, it is also necessary to slate in the allidavit that they were so damaged before delivery, and while they were in the keeping of the del'endant. iUi/c it a/., vs. Broun, S. ('., 3 L. C. W., }). 148. 8. And in an aclionby a livery-sluble keeper to recover jC30, being JGf) ibr lour days hir'' • t a horse, ami £"2^^ for the value of the horse which was ;;ci returned, by judguient on \x motion to (|uash a cctpias is.iued in the case, il was held : that the refusal of'lhe defendant, as alleged in the allidavit of plainlilf iu this cause, to return the horse Iheroiii ineii- tioiied, does not create a di;bl for the sum of X'^fi, the alleged price of the horse, but only gives to tire plaiutilf a right to recover the said horse with the damages aullrred in conse- quence of his detention, and for the value oi the said horse as damages in case of his non-delivery after judgment. Dumaine vs. Guillemot, S. C, 6 L. C. 11., p. 477. 9. An affidavit for a capias shows uo legal indebtedness in alleging that the defendant is personally indebted to the plaintiff in the sum of jGI.oO currency, for the amount of the peual sura or penalty stipulated and specified in and by 4 ,:<^ 1 1 ill ■) II ' ( 1 ' ' 1^ 60 Capias :— CAP H 1': his bond nmde and nxecutod l)y the dpfciidant, ul Stnnhridge ul'ore.suid,on tho'29th April, 184-3, coiulilituicdnnd contingent, the said ponalty u|Hin his the said defendant giving tu the said deponent, one Sylvester J. Allen, a good and snfficient warranted deed of two lots described to be divided between them, notwithstanding the allegation of the division of the lots as agreed on, and '.he granting of a deed of one of the lots to Sylvester J. Allen, by thu ilelendunt, and that the defendant had been called upon and had refused to give a deed to plaintill' of the other lot, the right of the plaintiff' being to obtain a deed, and in default thereof the sum stipulated as dumnges. Ai/en rs. Af/cn, S. C, 6 L. C. R., p. +78. 10. An affidavit for a capias which contains several difierent averments of debt, inconsistent with one another, is not void because one of them is insutlicient. Green vs. Ilatficlil, S. v., 12 L. C. R., p. 115. ri. And in the aflidavit setting' up the cause of indebted- ness as being on u jironiissory note, it is not necessary to say where the note was made. Brrnj vs. May, S. C, 13 L C, R., p. 3. 1"2. A creditor lor a sum under £\0, may obtain an assignment of other debts ih\o by the defendant, and sue out a writ of c jtias ad ir:qv»i(lc)iduyti. for flic amount due to him personally, and the amount iissigned to him, if together they cxccod jClO. Qnirni vs. Afc/fson, S. C, '1- L. C. R., p. 378. And such assignee may bring suit without having pr(j\iously notilied his deed to the debtor. 2/j. 13. It is insufficient to allege in the affidavit to obtain a copias tliiil doponcMit is informed, and bus reason to believe that defendant is altoiit to leave the Province, without say- ing by whom he is informed. Pcrmult vs. Dcshr, S. C, L. R., J). 19. And so likewise the allegation that deponent has been credibly informed that the defendant has secretly removed his goods in the night time with intent to defraud his creditors, is not sufficient, unless the name of the party, from whom the information Mas obtained, is disclosed. Contrff. rs. Menifl. S. C, 1 L. C. R , p. 3f)7. But it is sufficient if it be alleged that defendant himself had said that he was about to leave the Province. Benjamin et al., vs. Wilson, tt. C, 1 L. C. R., p. Zb\. 14. The allegations that defendant has taken away goods placed with the plaintiff as security for the payment of a note, and that he has refused to deliver a horse, that he is a stranger and has fiuled to keep his appointments, and that he has withdrawn himself from his creditors, are not suffi- cient to justify the issuing a writ of capias ad resfondendwii under the 12 Vic, c. 4-2, [C. Sts. L. C, c. 87.] Lceming vs. Cochrane, S. C, 1 L. C. R., p. 352. Bnt the allegation that defendant had sold his saw-mill and all his wood and was keeping his moveable property and himself concealed, is sufficient. Perrault vs. Desive, S. C, L. R., p. 19. l.'S. The omission in such affidavit of the words "with intent to defraud his creditors generally, and the defendant in particular," is fatal. Lamarche vs. Lebrocq, S, C, 1 L. C. ff CAP 51 Capias : — ireen vs. R., p. 215. And so also it wns held in Wihnn vs. Eay^ S. C, 4 L. C. 11., |). I.'i9. lint in snch ullidavil tin- words " may l')so Iiis said debt or sustain daniago," are equivalent to the allegation that " he may he drprived of his remedy.'' Ldinpsonvs. Smith, S. C.,7 L. C. K., p. 425. And so also in the case of Ilusset rs, Mulcahey, it was held that the substitution of fho words "that without the benefit of a writ of capiiui, the creditor will lose his debt or suffer damage," lor tlie words " will lose his remedy," is not fiital. 6 L. C. It., p. 15. And in case of Tctu rs rc/lelhr, S. C, 6 L. C. U., p. 32, it was held that it was not necessary in such nflidavit to swear that the piaintiU", without the benefit of a capias ad rrspmdcudum nsainst the boily of the defen- dant, may be deprived of his remedy. And so also in Leliivrc rs. DonncUij, ih., j). 247. Or that he will suffer damages and lose his debt. Ihutre vs. McGinnis, S. C, 5 L. C. J., )). 1.58. 16. And where the cause of the taking out a capias is for deterioration to real estate hypothecated, under cap. 47, C. Sts. L. C, it is not necessary to allege that the damage was wilfully done, if it appear that it was not done by accident or in the ordinary course of events. Ih. And in the affidavit it is not necessary to ask for a co]>ia^, i\\o fat suffices. Ih. 17. An allldavit for a capias on the ground that defendant has secreted his efll'cts, is not sulficient, if the reasons for the belief be that he is insolvent, and that he went to Rimouski and was currying on business there, and tint he did not make an assigiiniejit of his estates to his creditors. Hamel ctal., vs. Cote, IS. C, 11 L. C. 11., p. 4t6. 18. An affidavit stating that the deponent's grounds for belief tliat the defendant is about to leave the Province with intent to defraud his creditors, are, that the defendant's vessel is lotuled and ready for sea, that he, the defendant, intends sailing in her, and has tokl deponent that he would not return to Canada, is sufficient. Wilson vs. Rcid, S. C, 4 L. C. K., p. 157. Also an affidavit is sufficient in which it is stated that deponent's grounds for believing that the defendant is about to leave the Province, with a fraudulent intent, are, that the defendant has no domicile in the Pro- vince, that he is a seafaring man about to leave the Province with his vessel, and may never return, and that he has made no provision for the payment of the debt. Berry vs. Dixon, S. C, 4 L. C. R., p. 218. And an afiidavit wherein it is stated that the reasons for believing that the defendant is about to leave the Province with a fraudulent intent, are, that the defendant is the master of a vessel, which vessel is loaded and ready to go to sea with the defendant as master, and that the defendant himself has stated that ho was imme- diately about to sail to parts beyond the sea, is suflicient. Quinn vs Atchesan, S. C, 4 L. C. 11., p. 378. Also an affidavit was held to contain sufficient grounds for the belief of the defendant's departure, with a fraudulent intent, which stated that the defendant refuses to pay the sum sworn to be due ; that the vessel of which he is master is immediately about to sail for Europe, and 4» that the (I ' ,.■!'*' ill ! U^ i*ili;-ii 52 Capiam : — CAP I f ' ': i '1 I! defcndniit is to snil ihoroin. Lf/ihrre vs. Tu//ofk, S. C, !^ L. C. H., J). 42. And so nlso in tlio case ol' Ilnxsett v$. Mulcahrt/, S. C, 6 L. C. K., p. IfS. Aixl in nnothor case of Mncdimf;all vs. Tnnancc, S. C, ft L. C. J., ]). 1+8. And in other ciiHC in whicli the afhdavit set forth that the defendant was about to po to his original domicile, IScotliind, where his family had resided lor live years, without paying plaintili'tho balanoo, ond without leaving any property in Canada out of which the plaintiff could get paid, and afler repeated applications had been made to him for payment. Ross et al., vs. Burns, S. C, 7 L. C. J., p. 3.5. 19. And it is not necessary in such affidavit to state that the defendant has been requested to pay thu debt and refused so to do. But in an affidavit for a capias, tho allegation that the defendant, who resides at Rouse's Point, in tlie United States, is upon the point of immediately leaving tho Province to go to the United States, and giving the names of the deponent's informants, discloses no intention of fraud, and is insufficient. Lar J., p. 4*. C A P . to CAR 57 Capias : — not filcil in the Prothonotary's oflice, a statement under oath oi" all his credits, property and eflects, and such de- fendant will be imprisoned for .such space of time, not exceeding a year, as the Court, in its discretion, shall determine. Dei'enduut need not have notice of the petition for such process. Macfarlune vs. BeliveaUf S. C, 4 L. C. J., p. 357. «' : — Vide Bill of Exchange. Carriers : — 1. Common carriers are liable for all losses and damage except that occasioned by the act of God and by the King*s enemies and by inevitable accident and tis major. Proof, to the effect, that the goods placed by the plaintiff in the ens- tody of the defendant were destroyed by a fire which could not be accounted lor otherwise than by the presumption that it was the result of spoiituueous combustion, does not consti- tute inevitable accident or ?7> major. Proof that th« defendent had previous to and at the time of the fire posted up in all the coin])any\s stations, with other printed con- ditions, a notice that the company would not be responsible " for damages occasioniHl by delays from storms or unavoid- able cause, or from d!iinai?es from fire, heat, iV'C," that a similar notification and similar conditions were printed on the back of the comp;uiy's advice notes to consignees as to the arrival ol goods, and that the plair.tifi'had been seen on a previous < ccasion reading such condition and notification, dots not constitute an ;!i'.r(-enic'nt between the iijaintitf and defendant, that the goods in (piestion were to be carried on these tt;rms, particularly in the face of an unconditional re- ceipt given by the company for the goods as in the present ease. J* nd a common ciirrier will not be exempted from liability even where such an agreement is proved if he be guilty of negligence. Huston is. The C/raml Truvk Railway, S.C.,3 L.C. J., p.2Gf) ; confirmed in Ap])eal, (II^.C. J. p. 173. And a chaise in a bill of Jailing to the effect that the carrier is not liable for " lenkago, breakage and waste," does not re- lieve him from liability arising from negligence. Harris Sj- al. V. Edmomlstone i<- a/., S. C, 4 L. C. J. p. *0. But a com- mon carrier may limit his liability by conditions inserted in the bill of lading; aiifl if he receives goods ou board his lighter he is not linbh^ for the loss tuising firom a delay in transhipment, owii'.g ti) a .short shipment of goods, where the bill of lading contained a clause that, if from any cause the goods did not go forward on th(> shij), the same should be forwarded by the next stcMtnor of the same line. Torrance ijl- al. V. Allan, S. C, G L. C.J. )>. 1 90. 2. In ease of damage the carrier is bound to prove that the damage is within the exceptions of the bill of lading. Go.- Jurtyvs. Torrance i^al. and E. C'ontrA, S. C, 4 L. C. .1. p. 371. 3. Salt ought not to be carried on deck between Quebec and Montreal, unless there be a special permission to that effect. 11). This case went to Q. B., where it was held : 1st. That in general, a consignee wlio complains of short delivery or • damage of goods ought at once to protest, in order that the disputed facts may be investigated ; ^ i M\ H' ■ I '•■].) '■> i ill: I: I r \ I I 68 CAR i:-!'!! I I I'j ! ::! ! ! Carriers : — 2nd. That, in general, a survey ought to be had, without delay, upon goods delivered in a damui;od state, and this after notice to the parties interested, especially in cases where the consignee intends to retain the goods ; 3rd. Thiit the burden of proof was on the bailee to show that the damage was occasioned by the dangers of naviga- tion. 6 L.C.J, p. 313. 4. The owners of river craft are responsible for losses occasioned by their own want of care, attention or experi- ence, or of that of their servants. Borne v. Perrault Sf a/., S. R. p. 591. And so a steamer running as a passenger boat between Quebec and Montreal is liable for the baggage of passengers. Bankier v. Wilson al., S. C, 5 L. C. R. p. 203, And where a passenger on board such boat leaves his lug- gage on the deck, outside of the cabin door, and is told by one of the hands on board that it is safe in such a place, the owner of the steamboat, in the event of the luggage being taken away or lost, is liable for the value thereof, lb. And common carriers are responsible for money hon& fide taken for travelling expenses, if the amount be reasonable, and such as a prudent man would put in his trunk. And if the traveller be a ship master, they arc liable for a dressing-case and for night-glasses or telescopes, upon the presumption that he may reasonably have thought they would be useful to him on his voyage. But carriers are not liable for articles of jewellery. CadwjUadcr v. The Grand Trunk Railway Company, S. C, 9 L. C. R. p. 169. But in a case of Mac- dougall V. Torrance, S. C, 4 L. C. J. p. 132, the captain of a ship was held liable for jewellery which had been stolen from a lady's trunk on the voyngo. But in another case of Macdougall v. Allan 4* al., on an action f^r damages by a lady passenger for goods shipped in the hold of the vessel and not delivered at the port of destination, a plea to the eflect that the loss happened without any fault or privity on their part, hut by reason of robbery, embezzlement or secret- ing thereof, that the plnintilf did nut insert in the bill of lading, or in any way declare in writing to tlici master of the vessel, the true nature and value of the articles, was held good on demurrer, S. C, 12 h. C. R. j). 321. f). And the liability of n common carrier fcr a quantity of wheat on board a barge, eslablislied by an acknowledgment of its receipt in writing, cannot be nllected by parol evidence that the barge was not his and that he acted only as agent. Si/me 4- al v. Janes ^- al., 8. C, 2 L. C. J. p. 169. 6. And in an action against a carrier for goods lost, if he decline swearing to the value t»f them, the Court will submit the matter to the scrmrnt decisoire of the plaintiff. HM)S v. Senecal J^ al., S. C, 1 L. C. J. p. 93. But in a ease in the Circuit Court, it wus held that the owner of a trunk which has been lost by the negligence of a common carrier may, in a suit against the carrier, prove by his own oath,ca; neces- sitate reif the contents and value of the articles therein . contained. Robson v. Hooker herifrhas taken bail for double the amount of the debt sworn to in the affidavit, and the ))laintifT has afterwards obtained a judgment for a larger amount, the liability of tho bail cannot be extended beyond the amount sworn to in the afTnlavit, and endorsed on the writ ol^apias. An assignment by the joint-sherifT, under their customary signature, and in the form used in England, is a good assignment. A motion by the defendant to be j)ermiti('d to jiut in special bail for the amount sworn to, and etulorsed on the writ, which motion was rejected, is not a sufiicient compliance with the writ so as to relieve the bail to the sheriff. Torrance et al., vs. Cilmour et uL, !S. C, 2L. C. R., p. 231. 45. The plaintifl' in an affidavit for a capi'Js gave as the grounds of his belief: " that he was this day informed by A and B, that the defendant has all his goods ))aeke(I for a start from Canada, and that he will leave the said rroviucc to-morrow, and will not return aguiu, and that he so intends leaving with the fraudulent intent as a foresaid." On :i petition for release, A and U exiiuiiiied on deli'ndanfs behalf, stated that they only said he was going to New York. In cross-examining defendant's witnesses, pluiutifi" went into other matters, and such proof was held admissible, the plaintiff not being held to tht^ iireeise matters set up in his affidavit. Blankensce and S/iurplct/, i^. li., 10 Ij. C. U., p. 240. 46. That "makcth oath and snitli," imports that the de]>o- nent has been sworn, and it is not necessjiry to say " having l)een duly sworn, maketh oath and s:iiih.'' JJcrnj vs. May, o. C, 3 L. C. R., p. 3. " At Quebec." shows sufficiently where deponent has been sworn, lb. The day of the month and the year may be written in figures, lb. 1 t' ' "h ' ■' a:| i I iH 56 CAP i ■ ' 15 Capias : — 47. But where an affidavit is said lo be " sworn at the city of Montreal," without " be/ore us," it is bud. Heugh et al., vs. Ross et al., S. C, 13 L, C. R., p. 32. Confirmed in appeal. " : — Vide Appeal, " : — " Minor. Capias ad satisfaciendum: — I. No capias ad satisfaciendum* can issue on a judgment obtained by the payee against the drawer of a promissory note, although payable to order, the parties not being mr^rchanls or traders, and the note not purporting to be for value reeeived in goods, wares or met chandize. Herald vs. Skinner, P. R., p. 1. 2. In the case of Mcraireond Laframlmse et al., Q. B., 5 L. C. R., p. 168, it was hcid, that a cnntrainte jmr corps by capias ad satisfaciendum, '\n the case provided fur by the 37th section of the Ordinance of 1785, 25 (leo. Ill, c. 2, f has not been afTi-cted by the 12 Vic. c. 42, and that such co^ifl* therefore msiy issue against a debtor refusing to open his doors to the bailiflcharged with a writ ofcxecution aj^uinst him and oven where no R»rce or violence was used. Desharnais vs. Amiot, C. C, ^ L. C. R. p. 43. And the return of the bailiff is siif?lci(Mit grf)Mnd for the issuing of the writ (Mer- cure and Loframlinise), lliDUiih probably not sufficient to justify a condemnation, ns in the casi- of Krmpt vs. Kempt, S. C, 2 L. C. J., p. i.'80, it avms held that the Sheriff's return to a writ of excention to a like effi^ct was not, and an appeal lies from the judgment, allowing such contrntife par crjjs, in like manner as from any other judgment from which an appeal is granted. And in the ense of The Bank of Upper Canada vs. Kirk, S. C. 6 L. C. 11. p. 462, it was held that by the statute 12 Vic. c. 42, execution against the body by writ of cajnas ad satisfacictidum bad been abolished. % [Con. St. L. C. cap. 87, sect. 7, s. s. 3.] 3. A capias ad satisfaciendum (so called in the report) will issue on proof by plaintiff, in an action begun by process of capias ad respondendum, that defendant under bail has * AbolL>.hal by 12 Vic. c 42, s. 2, Con. .St. L. C. cap. 87, scot. 7, s. s. 3. f Con. Pi. I/. C. cnp. 83, sci-t. 14:i, — ft is liy error that lhi« coiitrninte par eoips is called n capias n I mlisfacinifl urn. And nlilmnsh imvv clns.xcd in the C'on.«oliilated ."talutesaJt an ••Nccution, It is evidt'Mtly no! .so, oih^ twi.-o it won 'd he an al)soliite contradiction to 88. 3, »ect. 7. of the op. ^7, Con. .St., wliich says, *' No writ o{' cnjias ad satisiartetiiliim, or other fxei'Ution ag.iinst the per.ii, in contra- die'liin wiih seif. 2, 12 Vic. c. 43, at lea.>'t in so liirns rejjards ellects alrendy secreted ? But ih" 1 ;ip. 87 >e(t. I, C. Sis. L (' dies net itproiliiee texttially the 12 Vic. p. 42, sect. S. .Nc\.'iihele>s it niny be inalnlaiiicfl that wliliiiii altldavit, but on due proo(, a defendant who ha.-< .■•ecreied his ctiecis may he lakeii and delaiiR'd in prison until lio satisfie.'j the judgment iijj'uinst liiiii. X Tho ref oit, which is very short and nnsaiisfactorv, evidently is that of a case where this process \vii> used in an artion Ibr df bt ; for the 12 Vic no where alludes to the case of the Ord. of IIS.'), iinpiopeily in Mcrrine mid L'lfriiviloise calleil a capias ad sntiffafiendum. In tiie l.st motive \t\' ihe jiKijiinen', as all thioiiyb hi.s remarks, the Chief Ju-tice adherex to the correi'i expulsion of a fnnrdintf par vovjut. The case of The- Bunk of U. C. vs. Kir/k, cileil above shows li 'W incoiivcii;eiit is the confounding of the term*. It results then that llie minus ad MilisfurieMdum. projicrly so ealleil, i--^ abolished by the 12 Vic , but not so the 4-imiraiiite par coips for rfMtivii it justice, a lnah species of contempt at all times reproved by oui 1 iw. And it would seem that for deli?iidaiit tostcrete his ellects is a rebellion djustict. Vile Ord. Civ. tit. xix^ art«. 16 and 17. •l Ci Ci C/ Ci CAR to CER 59 II at the HeugK nfirmed m* can Dst the der, the lote not or mer q. B.. 5 •orps by the 37th has not h capias open his insthim sharnais 1 of the it (Mer- ciput to . Kempt, Shorilf's , and an n?ite par nt from he Bank , it was iiist the llished. t )rt) will [icess of lail has is callMl lutes ax an . to so. 3, t,oT other tiinte may It one, but lerntion ot In contra- Ited 1 But I, seut. S. |dant who Ijudgaieut Ue where le case of \iendnm. Idherex to \vs. Kirk, Ihen that lot so the [reproved ijuttict. k-4 i Carriers : — of a trunk which had been broken open. Macdougall v. Torrance, S. C, 4 L. C. J. p. 132. But where notice of the deficiency of goods has not been given to the carrier till several months afterwards, he is not responsible. Sivinburne V. Massue Jj^ al., S. R., p. 569. 7. A earner who undertakes to convey goods from Quebec to Chicago, with power to tranship at Kinf^ston, complies with the usage of that port by transhipping from a steamer into a sailing vessel, and is therefore not responsible for the loss of such goods occasioned by tempestuotis weather, in which such sailing vessel was wrecked. Warren v. Hen- derson, S. C, 8 L. C. R. p. 108. 8. A carrier who delivers goods to a consignee, after being notified by the shipper of the goods, in transitu, not to deli- ver them, is liable to him for the value. Campbell if al v. Jones if al., S. C, 3 L. C, J. p. 96, and 9 L. C. R. p. 10. 9. A carrier has a right to retain possession of goods car- ried until the whole freight be paid. Paterson v. Davidson^ S. R. p. 140 (in note), and even where the freight is at a fixed rate per package, and that the goods are not all ready for delivery. Brewster 3f al v. Hooker (J- a/., S. C, 1 L. C. J . p. 90, and 7 L. C. R., p. bf>. 10. But in Ihe case of Fitzpatrick v. Cusack and The Grand T'runk Railway Company, it was held, S. C: That a receipt-note containing a printed condition to the effect that all goods are subject to a lien, not only for the freight of the particular goods but for any general biilunce due by the owners, «fcc., does not constitute an agreement to that effect between the carrier and the consijinor, even whore it was proved that the consignor had taken many such receipt-notes. 12 L.C. R., p. 30G. 11. If merchandize in good order is entrusted to a carrier and arrives at its deslinalion in a daniitged st.ite, where he holds il subject to freight, he is liable for the value. And if he pretends that fraud and concealment have been practised, the onus of proof lies with him. Hart v. Jones, S. K. p. 589. 12. A carrier can maintain an action against an owner and consignee H-r any unusual and unnecessary dilay in receiv- ing the cargo from their vessel, all hough occasioned by the fault of the carriers employed by the defendauls to receive and forward it on their account. Hvndosou y. Caicrhill 4" y of the writ having been served on the magistrate and his return being ma:le thereon. ]']x parte Lahayes., IS. C, 6 L. C.R., p. 48(5. Anil also in ex parte Filiau, S. C, 4 L.C.R., p. 129. 13. The defendant in a case of a writ of certiorari cannot compel the petitioner to proceed upon such writ by a mere motion, the proceedings to be had in such case must be by means of a procedendo. Ex parte Morriset, S,C., 2 L. C. R., p. 302. 14. A certiorari not prosecuted during six months will be dismissed on motion. Ex parte Boyer dit Laderoute, S. C, 2 L. C.J. , p. 188. Also Dotnina Regina, on application of Cluignon, S. C, 2 L. C. J., p. 189. And also ex parte Prefon- taine, S. C, 2 L. C. J., p. 202. .uU ,'<> i I' •if ^ ' ":i i: f 1. \i\ mm '. Jill ! '■ li : M I:' : f 62 C E R to C H U Certiorari : — 15. The iiispecturs of fences nnd ditches will not be relieved from the costs of settinj; aside, by certiorari, a judg- ment of Justices of the Peace, homologating, on petition of such inspectors, a procis-verbal rehiting to a water-course, notwithstanding the inspectors tender to the applicant, by notaries, the costs of the proceedings, previous to the return ol" the writ of certiorari, and promise in such tender that the applicant shall not be troubled in future by reason of the proces-vcrbaL Ex parte Dagcnais, S. C, 6 L. C.R., p. 112. 16. Costs on certiorari are in the discretion of the Cuurt. Ex parte Leonard, S. C, I L. C. J., p. 253. So also in Ex parte Demcrs, S. C, 7 L. C. Ll., j). 4'28, a motion to compel a magistrate to return the original papers of a cause under a writ of twi!iomW, such motion will be granted, but without costs against the magistrate. But in Ex parte Terrien, 7 L. C. R., p. 429, ii like motion was granted, with costs, against the magistrate. And in the case Ex parte de Beaujeu, 8. C, 1 L. C. J., p. 15, costs were not allowed against a Justice, who was manifestly acting merely in the execution of his duty. 17. There is no appeal from a judgment rendered on a writ of certiorari, liazin et al. vs. Creder et aL, 3 Rev. de L6g., p. 401. 18. The return of the notice of motion for a writ oi certio- rari is well made by a bailiff, and such return need not be proved upon oath. — Vide By-law. — " Conviction. — " Kecordkk. - ** Certiorari : J:x partf Roij, S. C, 7 L. C. J., p. 109. Cession •Ex pftrte All ere, S. C, L. R., p. 8. ArchanHmult, lb., p. 68. lielmiser, 2b., p. 3 1. Botiticau, lb., p. 3. Doyle, lb,, p. 66. Gould, lb,, p. 73. Landry, lb,, p. 3. Moquin, lb,, p. 84. Tnideaii, lb., p. 66. Ycroncau, lb,, p. 79. -In default of a vendor making cession of letters patent to a purchaser in the term.s of an agreement between them, to the efl'ect that the purchaser should obtain such letters patent in the name of the vendor, the court will givw a judgment to have the effect of such cession as if a sufficient deed had been passed to that effect, and the judgment will have the force and effect which such a deed would have had, and will invest the purchaser with all the rights, title, interest and property which he could have acquired by such deed. Leblanc et Pelerin, Q. B., 7 L. C. J., p. 113. : — Vide Langlois et al v, Verret, 2 Rev. de L6g., p. 177. Church: — Vide Conviction Churches : — 1. The commissioners appointed under the Ordinance 2 Vic. c. 29, and the subsequent statutes on the same sub- ject, in what respects the building of churches, parsonage houses, &:c., forui a special tribunal exercising judicial authority within certain limits. And an acte de repartition duly homologated by such commissioners, is primd fade evidence of its contents, at least until the contrary is proved. The right of appeal in suits for the recovery of amounts levied for defraying the expenses of building, has been u ■■< 'i ^J C II IT to CIV 63 Chvrchrs :— allowed ami exprciscd. Reni^re and Mi/lette, Q. B., 5 L. C. 11., p. 87. Jiiil ill the case Ex parte Lrcours, the S. C. held that the jKJwers of such commissioners were not judicial powers subject to its revision on certiorari. 3 L. C. K.,p. 123. 2. The Circuit Court cannot take cognizance of the nullities of a cotisation rule lor the buildinj? of u church owing to the omission of rate-payers and fraud on the part of the syndics. The Circuit Court must f^ive judgment against the rate-payers according to the rdle. The Syndics of the Parish of St. Norhert, vs. Pacaud, C. C, 6 L. C. J., p. 290. And in ex parte Boucher and Dessaullcs et al., Corns,, and Langcllier et al., Syndics, it was held that tlicre was no appeal, and that the only way to f)rocced was by certiorari. But the refusal to admit the evidence offered by the opjx)- snnls, and the lact that illegal evidence had been admitted by the syndics, is not an excess of jurisdiction, and a writ of certiorari granted for such reasons will be set aside. S. C, 6 L. C. .r., 1). 333. " : — Vide Agriculturai. Act. " : — " Certiorari. Church of England : — A clergyman of the Church of England, in a parish where there is a consecrated burial-ground cannot be compelled to perform the service in a ])lacf that has not been consecrated or sc^t a|)art (or ])urinls by the authorities of that church. Ex[). Wnrtcle, S. C, L. C. K., p. 414.. CiRCLiT Court : — 1. The Circuit Court, sitting in any given circuit, lias jurisdiction in actions, the cause of which has arisen within the limits of such circuit, although the defendant* reside in a district other than that in which such circuit is situate, and have been served with process in such other circuit. Ilardy et al.,i'. Trolhicr ct al., S. C, 1 L. C. R., p. 286. 2. The Circuit Court will declare a by-lavr to be invalid while judging on the merits of the judginei^ of an inferior tribunal. Duaiisi vs, Anvinis, S. C, 7 L. C. J., p. 110. " : — Vide AvvEAh. City Couxcir.Lon : — Being a householder for twelve months before election, is a necessary qualification for the office of City Councillor, and the candidate who has received the greatest number of votes, not being so qualified, may be unseated of liis office, and the candidate having the ntext greatest num- ber of votes may be seated in his stead. Lynch is. Papin, S. C, L. R., p. 109. Civn. Death : — 1. A party condemned to death by the court martial wliich sat in Lower Canada in 1839, and subsequently pardoned, cannot ester en Jugement, or revendicatc his pro- perty forfeited by reason of his attainder. Rochon vs. Leduc, S. C, 1 L. C. J., p. 252. 2. A person confined in the Provincial Penitentiary, under a conviction for fiirgery, is not m^rtuus civiliter, and a signi- fication of a transfer during that period on his wife is valid. Roicell vs. DaraJi, S. C, 2. L. C. J., p. 208. " : — Vide Communaute. i (! M . ' : 1 ■i % W h 11 I iiRi I i . / / I .u I' . I :!iV 1 5 04 CODE to COL Code Marine : — Tho codr marine, ovoii if it ever wfis in force, wa« no pa;t of thr> coiniuon liivr of Csuitida, but a piirt of the public luH', and ci)iise(|iK'ntiy supcrst'iltd by the clfect of the conquest; and if it was law in tht> admiralty jtirisdiction alone, whether pul)lic or common hiw, it was abolished by the introdiu'tion of Knglifsh Admiralty law. lia/divin vs. Gifidon, S. R., p. 72. Coins •.—Vide Cukhencv. Collector op Customs : — Vide Notice of Actions. Collision: — 1. The Court of Vi(!o-Adiniralty exercises jurisdiction in the case of a vessel injured by collision in the llivor St. Lawrence near the city of Quebec. Ilnwnrd vs. The Camilltts, 8. R., p. 158, and Ritchie vs. Orkney ct al., 8. R., p. 613, and S. V. A. R., p. 383. 2. There arc four probabilities under wliich a collision may occur : a. It may occur from the fault or misconduct of the vessel fluffering from the collision ; b. Or the accident may have happened from unavoidable circumstances, without fault on the part of either vessel ; c. Or both parties may be to blame, as whore there hai been a want of skill or due diligence on both sides ; d. Or the loss and danuige nuiy be owing to the fault or misconduct of the vessel charged as the wrong-doer. In the first two cases, no action lies for the damage arising from the collision. In the third case, the law apportions the loss between the parties, as having been occusiouod by the fault of both of them. In the fourth case, the injured party is entitled to full compensation fr(>ni tlie jiurty inflict inc: the injury. Thr. (pvnd^edand, p. 7;"). S. V. A. R.' 2Vic Nr/ann VtZ/age, p. l.'JC. Ih. 3. Owners of v«'sscls are not exempt iVcim their legal responsibility, notwitlistaiulin;.': Ihiil tlicir v< ssel was under the care and nianagonient ot a pilot. T/ie Oximhcrhind, p. 7ii, S.V.A.R. 4. .Ship hold liable for collision, notwithstanding there being a pilot ou board. I'hc Lord .luhn Ru&sel/., p. 11)0, S. V.A. R. 5. The circumstance of having a pilot on board, and acting in ct)nforniity with his directions, does not operate as a dischui'iie of the res[)o!isil)ility of the owner. The Creole. p. 199, si v. A. II. 6. But when a collision is ocoa.sioned by the jnismannge- ment of a pilot, jilaccd on lionvcl or in charge; according to law, enforced by a penalty, the vessel is not liable, and the mode, time and jtlnco of brinying a vessel to anchor is M'ithin the peculiar province of sucli pilot in charge. Tlie Lotus — Clark, 11 L. C. R., p. S^i. And where the pilot is in limit, it is the practice of the Admiralty Court to give no damages on either side. lb. 7. A pilot act which obliges vessels going out or coming into port to receive a pilot, luider a penalty or forfeiture of half pilotage, is not compulsory but is optional. The ship need not take a pilot if it prefer to pay the penalty or forfeit- ure. The Creole, p. 199, S. V. A. R. COL 65 Collision : — 8. Ill cnses of collisiun arising from nogligpiice or unskil- fiiliirss ill innniigcMneiit if siiiji during the injury, tlio pilot hiiving iho ouiitrol itf the ship is not a conipctent witness for such ship, without a rt'lcusc, althuiigh tho master is. The Ijtnl J(Jin Russell, p. 190, S. V. A. II. 9. In u cause of collision, wliero the loss was charged to be owing to negligence or want of skill, the Court, with the iissistiinue of a captain in (ho Iloyal Navy, being of opinion that the damage was occasioned by accident, chielly imput- able to the iinpnidence of the injured vessel and not to the iniscoiidiict of the other vessel, disniissed the owners of the latter vessel, with costs. The Lnmid s, p. 226, S. V. A. II. IQ. Where it appeared that the citllisiion was the cflect of mere accident, or that over-ritling necessity which the law designates by thc^ term via major, action dismissed, with costs. The Sar. In acase of<;olli8ion against a ship for running foul of a floating-lii «i]. I 1 f I I " A^ ^ MW I I ' ,'il 66 COL iii. 1 t I 11 V 1 1 i i; 1 ■ ' ); [fi Collision : — 20. By-laws of Trinity House rosppctinjr lififhts, not nbro* gatod by desuetude or non-user. TVif Mary Comj>f)fll, p. 222, H.V.A.R. 21. F>ery night in the nhsonce of the moon is n dnrk night in the purvii w of the Trinity House rcguliitinns of the 28th June, ISC'). The Dahlia, \\ 242, S. V. A. 11. More credit is to be attuehcd to the crew thnt nre on the alert than to the crew of the vessel that is placed ot rest. Ih. 22. In a cnsc of collision between twoslii|)S ascending the River St. Lawrence, the Court, assisted by a cuptiiin of the lloynl Navy, pronoiu ced (or diimages, ho/ding, that when two vessels nre rrcssing cnch other in opposite directions, and tlu-ic; is doubt of their going clear, the vt^sel upon the ])ort or litrboard tuck is to bear up and heave about for the vessel u|>on the starboard luck. T^e Nelson Vtllage, p. 156, S. V. A. R. 23. Two steamers were coming from Montreal to (Quebec, and when opjKJsite the city of Quebec the one took the course usual on such occasions and passed down below the lowermost wharf, at the mouth of the River St. Chiirles, where she turned, to stem the tide and come to the wharf at which she was to land her passengers ; and the other did not descend so low, but made a short and unusual turn, with the intention of passing acn ss the course of the former and ahead of her, after she had turned and was coming up against the tide: Held,—Thut the collision complained of resulted from a rash and hazardous attempt on the part of those on board of the steamer which made such short and unusual turn to cross the course of the other, contrary to the usual practice and custom of the river and the rules of good seamanship, for the purpose of being earlier at her wharf. The Crescent, The Rowland Hill, p. 289, S. V. A. R. ManGBuvres of this dangerous kind, which might, in a crowded port like that of Quebec, result in the most serious loss of property and of life, ought to be discountenanced, lb. 24. In a cause of collision between two steam-vessels, the Court, assisted by a captain in the Royal Navy, pro- nounced for damages and costs, holding that the one which crossed the course of the other was to blame. The Byfown, p. 278, S. V. A. II. '''■ 25, The general rule of navigation is, when a ship is in stays, or in the act of going about, as she becomes for the time unmanageable, it is the duty of any ship that is near her to give her sufficient room. The Leonidas, p. 226, S. V. A. R. But, when a ship goes about very near to another, and without any preparatory indication from which that other can, under the circumstances, be warned in time to make the necessary preparaftons for giving room, the damage con- sequent upon want of sufficient room may arise from the . fault of those in charge of the ship going about at an improper time and place. 2b. Or, in the case of darkness, fog, or other circumstances rendering it impossible for the ships to see each other so c'oL 67 Collision :— distinctly an tu watch each other's cvuhitiuns, the fuiilt mny bo with cithtT. Jh. t2G. IJy tho Mcri'hiint Shipping Act, (17 and 18 Vict., c. 1()4<, SM. '2%, 'J97,) 1111*1 thr ^tciun Nuvi^Miiun Act, (Uand 1') \'ict., c. 79.) ii.H well ii.s hy th«' rule of tho Trinity lloiiso oCl^uebrc, when ti NlranuT int'cts ii suilinj? vessel poinp free, aiitl tlicru is (lunger uf collision, it is tho duty ofench vi-ssei '») put li'T helm tt) |)(»rt and j)ass to the rirlit. u U' m tho c/fiuimstuiK'is •►re such as to render the follow u<.\ « I tie rule ini[iriicncal»le or daufrerons. The Inga, p. UJf), 8. V. A. 11. No suffirieiit cause being found for not following this rule, a sailing vessel eoiidenined in damages and costs for |iulting her iiclm to starboard, mid passing to the left of a steam tow-lK)at, thereby causing collision with the vessel in low, the steamer and jier tow et)ming down the channel, nearly or exactly upon a line with the eoiirsi! ofthe sailing vessel, lb. Conflict of Knglish and American law, how to steer. Ih. 27. Where two ships, close hauled, on opposite tucks meet, and there would be danger of collision if each continued her course, the one on the port tack shall give way, und the other shall hold her course. The Mary lianmUyne, p. 350, S. V. A. 11. She is not to do this, if by so doing she would cause unnecessary risk to tl.; other. Ih. Neither is the other bound to obey the ride, if by so doing she would run into unavoidable imminent danger ; but if there be no such danger, tho one on the starboard tack is entitled to the benefit ofthe rule. Ih. The circumstances of the case examined, and no suffieient cause being found for not following the rule, the vessel inflicting the injury, condemned in damages and costs, lb. 28. The settled nautical rule is, that if two sailing vessels, both upon a wind, are so approaching each other, the one on the starboard anil the other on the port tack, us that there will be u danger of collision if each continue her course, it is the duty of the vessel on the port tack immediately to give way, and the vessel on the port tack is to bear away so early and effectnully as to prevent all chance of a collision occurring. The Roslin Castle— The Glencairn, p. 303, S. V. A. II. Also 4. L. C. 11., p. 38. 29. The general rule is, that where two vessels are ap- proaching each other, both having the wind large, and are approaching each other so that if each continued in her course there would be danger of collision, each shall port helm, so as to leave the other on the larboard hand in j)as- sing. The JSiagura— The Elizabeth, p. 308, S. V. A. R. But it is not necessary that because two vessels are jiro- eeeding in opposite directions, there being plenty of room, the one vessel should cross the course of the other, in order to pass her on the larboard, lb. Although there may be a rule ofthe sea, yet a man who has the management of one ship is not allowed to follow that rule to the injury of the vessel of another, when he could avoid the injury by pursuing a different course, lb. 5* \ 1 i 'ii'"" f i\ 1 . 1( \ ' i:!!i i .'I ill il ! i [ill I i C8 'OI.MHION f OL riio I'unrI prtiiitxinct'd lor (liiin»j><'Sii«>iiinst ii vosncI sailiiij^ tlowii llu» KiviT St. I.iiwmift on licr iioiiit'ward voyiigo to liiV(*r|K>ol, niiniiii^ loiil ol anodicr coiiiiii^r up in tow ol Ntemiu^r, tin? iiij^lil at Mio tiiuc Ix'iii^ rfasoiinhly fliar, imd .««. M. ceil Vi'NSi'ls, Niillii'U'iitly .s«) lor li^hls to !»«• situ at a modt'ratc distiiii 30. Jiiaiiility of a Nl««aiulHiat lor (*olliNa>n Ix'tw ouo ol'wlMfh is lowed by tlio Ntcainlmiil. The JiJtu (^ounter, I».:hi., S. V. a. K. ('iisi's may oii'.iir in which an aci'idt-nt njay arisi' tioni thi> I'anll ••!' tht' low, wjlluait any t-rror or inisnianaurnu'Mt on th<> pari of llu> lug. aiul in niicIi caho llii> tow alone inn^l W unswt'rahlf liir Iho i't)ns(<(|iu'nrfs. Jh. (aist's may als») «»*'iMir in whudi Ixtlh aro in limit, and in KUt'li ras.CN liolli vo.ssi'I.s wiadtl Ih' lialiU' t»> llu' Mi|nrrtl vcssol. whali'Vtr n»if«lit he iln'ir ris|ion.>il»ilily inter .sr. Ih. \\\. Jl' the collision iiroHo solely Ironi the nnseondiict oi tlu».S(^ on hoanl the .steani tnjf, hulh tlu' »tlher vessels are «l he disniissed, leaving llieni to their reeonise aoainst tin* steamer. 7V/r Ninpumi' The Klizuhrth, p. liDS, S.V. ,.\. \\. 'The law in sneh ease is, that the ttiw is not responsd)h> Utr an accident arising- from the mistake or nusemulnct ol tlio tnfj;. //). Sft'ainers arc to he c«>nsidcri'd in the liij;ht of vessels navi- jj;atin;? with a fair winil: tht^ steiuner and the Nitinunt were considered in this respect as on an ctpialily. Ih. And .so a vcs.scl in tow, witii a head wind and no sails, ami liist lt> the steamer, so that sh«i conhl only sln'cr to a certain distance on «'ithcr side of the coarse in which she was towed hy the steamer, is powerless to a very jjjreat extent. Ih. ir it he practicable |i)r u vessel which is ll>llttwin^' close upon the track of another to pnrsne u ctairse whieli is sale and she luhtpts one whicli is pt>rilons, then, if mischier eil- sne.she is ans\v«'ruble lor all conse(imMiceN. The Mary lian- nahfne, p. ar>0, S. V. A. II. 'A'i. V\w V.owtl will not enter n»to the discn.ssion as to l!»e preeisi^ point, whelh«>r on the slurhoanl side or olherwi.s«% in wliieh inn- vessel lies to tim otljcr at the time of beinj^ dis- covered. 'IVif Jo/in Couiifir, p. 311., S. V. A. U. 33. In order to support an actitai lor dama«>:es in a easci ol collision, il is necessary distinctly to prove tliat the collision arose from the litnlt ol' the pi^rsons on hoard of the vessel charged as the wrong-doers, limit of the persons on board of that vesstd and of thos(> on board of the injnrcKl ve.sstd. 7%*! Sarah Anne, p. 291-, S. V. A. U. 2i\>. If u vessel make every precantion against approaching danger, it is not sntiieient to subject her to damage for injury to another by collision, that in the moment of danger tlu)so oil hoard such vessel did not nuike use 4»f every uumius that might appear proper to a cool spectator; there must be gross negligence. The Kia^ara — The Elizalteth, p. 308, 8. V. A. R. 3f^. In acuso ofcollision by one steamer against another, where the loss was charged to bo owing to the negligtmce of the defenduutii, thu Court, being of opinion that tlio dunuige i ■V I COL 01) Collision : — WHS iicciisiontnl |iy siicli iio^li^ciicii, p;aviMliiinn.i^«>N iiiul oonI.s. Mait/(i»d vs. Affj/.ww, S. It., p. 411. Ami it vosst^l which in phii'cd hy lht).s(t in «'hiir^t« in niioh ii posilutii that tlaii^i-r will ariN«>, irsoiiH' evt>nt not iiuprohahh^ aris«>,will he aiiNwrrahh) lor «laiiia>».',s. Thr lA^ua—iUark, 1 1 Ii. ('. U., y. Ml .'i '. W tht'i'c was no propter aial Niitliciriit hMtk-iail, iiiul it tho proper means were not adoptetl lor avoiilin^r eolli.sion, aOer the tini«> when the other vessel's lights were seen, her having taken tli<« most seatnanlike and proper etairse when the eolli.sion was all lait iiievital)le,(|ot>s not exempt a vessel (h»ni haltility. Thr Siiiiiira — Tlie Elizahelh, p. .UIS, S. V. A. U. Also 4 L. ('. U.,p. '.»t;+. 37. In tlio ease o( a e«>llisioit h«g- liff«'nee" (Ml the part ot' the er<'W tif the latter. Lr^tr vs. JiMiiiOM ,^" (if., S. (\, :i L. C. .1.. p, U'J.'i. MS. And u'lur«> no propi r nwasiin s li.iv.« been taken to prtweni all reasonahle prtinahilily of a eolll^i..n on hoard of the plaintifr\s vessel, and said vessel not having the lights re. M9. Nor even wher«' there is dtaiht. as to the eause of the <'»»llision. Itf'rtntud is. DirAiH.Kon, S.C, \'* L.C. |{., p. JIO*. And in n ease of collision, whero the « statiiai nil siiips or ves- sels which c«Mne to the liarhonr of t^nehec or hanl into any wharf within the sam«', and ti) regidate tlu^ nntoring and fastening and shilling and removal of such ships ux vtvsstds. Where h««rths hud heen assigned or conlirmed hy the hur- Iionr mast<>r to several vessels in a dock in the h:irluair of Cjiiehec, and the harhonr master expressly dinclcd tho vessel proceeded against t«) renniin in the position she tlu^n occupied for the night, warning the master at tli<' s.niie tiint> id' the damage which wiaild he incurred if he alti-iiipted to liani fnrlhor in, hecanue there was not room eiuaigli in the dock; and the master hauled his vessel ftawnitl, ainl as tho water fell m the dock and the spaci< hetwceii the wharves nt the water lever centum on all advances made by ihem, when the customers had no funds in their hands, and the interest from the time the different items of their account became due, under a ])revions agreement to that effect ; and it was held that this contract was not usurious, but a customary allowance for the trouble and inconvenience of transacting the business. Pollock and Bradbury, S. C, 3 L. C. R., p. 171. Also P. C. Moore's, p. '^27. 3. The agreement that a certain rate of commission shall be del credere may be inferred from the fact, that, according to the usage of trade, the rate charged is such as is usually charged as a guarantee or del credere commission. Renkin and Foley, Q. B., 6 L. C. J., p. 156. " '.— Vide Ship. Commissioner: — A contractor for a public building cnn maintain an action against the Commissioners with whom he contracted for the erection of such building, if they have received from government the money which is due to them. Larue vs. .'S -'"i:. \4i" ' 111 Hi '{ i, V 'i )■ t n .1 1 :' ''M 72 COM Commissioner : — Crawford, S. R., p. 14-1. But the Seigniorial Commissioners cannot be sued by a seignior to pay him the interest on his lods et ventes income, out of moneys placed to their credit in a Bank by the Receiver General of the Province for the purpose of paying the seigniors their interest. Ramsay vs. Judah 4* a/., S. C, 2 L. C. J., p. 251. " : — Public Officer. Commissioners' Court: — 1. Commissioners* Courts have jurisdiction in actions for $25. Ex parte Bourbcau, S. C, 13 L. C. R.» p. 65. Commissioners* Courts have not jurisdiction in eases for sums over $25, which have been divided in order to bring their suits within that amount. It would [>e otherwise if there was remission of the rest of the debt. Ex jmrte Desparois, S. C, 7 L. C. J., p. 35. 2. Commissioners* Courts have jurisdiction in an action in which a party is sued as heir. Ex parte Charbonneau, S. W i «< C 7 L. C. J., p. 122. -Certiorari. I'' ;| ■ i :, ^1 Commission rogatoire :— A coirtmission rogatoire may issue on motion theri'for, without affidavit of any kind. Willis Sf al., vs. Pierce, S. C, 2 L». C. .T., p. 77. Also Johnston vs. Whitney, S. C, 6> L. C. J., )>. 29. But a commission rogatoire asked for on the day the case is fixed for evidence and final hear- ing, will not be granted without affidavit. Lane J^ al., vs. Ross 4r al., and Ross 4* «/•, ^. C., + L. C. .!., p. 2ftn. Commissions: — 1. Commission of Viee-Adrniral in and over the Pro- vince of Quebec, under the Great Seal of the High Court of Admiralty of England, dated 19th xMarch, 1764. p. 370, 8. V. A. R. 2. Commission of Judge of the Vice-Admiralty Court in the Province of Lower Canada, i»nder the Great Seal of the High Court of Admiralty of England, dated 27th October, 1838. p. 376, ib. 3. Commis ion under the Great Seal of the United King- dom of Great Britain and Ireland, fur the trial of offences . committed within the Admiralty jurisdiction, dated 30th October, I84.I. p. 380, z*. Common Soccace: — Vide Improvements. CoMMUNAUTfi : — 1. There is no communaute de biens between persons married in England, who have settled and died in Canada. Rogers et "l., vs. Rogers, 3 Rev. de L6g., p. 255 ; also, 3 L. C. J., p. 64. Anil where Lower Canadians got married in the United States without an ante-nuptial contract, it was held that the rights of parties will be governed by the matrimonial duiiiicil. Languedoc et ux, vs. Laviolette, S. C, 1 L. C. J., p. 2+0, and 8 L. C. R., p. 2.57. (Confirmed in Appeal, March, 1858.) 2. But although there is no community of property, accord- ing to the custom of Paris, between parlies married in Upper Canada, their then domicil, without any ante-nuptial con- tract, yet an action en separation de biens will be maintained in favor of the wife by reason of the insolvency of the hus- band, since their removal to Lower Canada, Sweetapple t's. Guilt, S. C, 7 L. C. J., p. 106. i COM 73 CoMMUNAUTfi : — 3. A clause in a marriage contract, stipulatins that the marriage rights of the parties should be governed by the laws and customs of England, will nut exclude communaute. Wilson and Wilson, 2 Rev. de L6g., p. 43 1. 4. A communaute dk hiens which was always treated by the parties interested as existing, notwithsturj''ing its legal dissolution by civil death, subsequently removed by pardon, will also be treated by the courts of law as having existed uninterruptedly since the marriage. Cartier rs. Bechard, S. C, I L. C.J., p.44. .*). A covenant in a marriage contract, that " the parties take one another, with the property and rights to each of them belonging and such as may hereafter accrue, of what nature soever, which said property, moveable or immove- able, shall enter into the community," is a covenant o{ ameu- blissement of all the property belonging to the parties, nut- withstanding a subsequent clause o{ realization ; consequently the customary dower cannot be claimed out uf the husband's propres. Mareau vs. Mathews and Fisher, S. C, 4 L. C.E.., p. 436. 6. A party contracting a second marriage cannot disjx)se by marriage contract, in favor of his second wife, of any portion of the conquests of the first community, or of a greater jKirtion of the acquits *han that accruing to the child taking the smallest share. Kck (hvs. Bigeloto, S. C, 2 L. C. R., p. 175. 7. A judgment obtained against a married woman, rowi- munc en hiens, assisted in the suit by her husband, cannot be the ground of a demand to have the sai^i judgment declared executory against the husband ; but such judgment may be invoked as an authentic acknowledgment of the debt, the action containing conclusions to the efit'Ct that the husband, as master of the conununity, be condemned per- sonally to the payment of such debt. Benhelet and Turcottc^ Q.B.,6 L.C. R., p. li>2. 8. A married womaji, marchande puhlique, but commune en btens, cannot sue without her husband. Lynch vs. Poole, L. R., p.60. 9. in an action en separation de corps et de hiens, a bill for ' medical attendance on the plaintiff was pro|>er!y charged among the debts due by the communaute. Jannot vs. Allard, S.C, 6 L. C. R., p 474. 10. The stipulation of separation of debts between husband and wife in community, by contract, has no effl c*; against creditors of the wife, if such clause be not followed by an inventory of the goods the wife possessed at the time of her marriage McBean vs. Debartzch, S. C, 5 L. C. J., p. 150. " : — Vide Married Women. " : — " Simulation. Compensation: — 1. Damages for the non-performance of a special agreement for the tranS|»ortation ofg ;ods, where a part has been transported, delivered and accepted, cannot In pleaded by w;iy of compensation against an action on the quantum meruit for freight carried upon such part so delivered and ' i .,' ■ i i< ., ., 1 fh 74 COM ' ;r I i <'S ' liii'' i 1 |i i i; 1, 1 ' \l i ll i \l i 1 : i i 1 1 ' j li' ! ii i ' '■ t i ■ n ■ '■' 1 ■ ; I '^ 1 I Compensation : — accepted. The party must institute a cross demande or a separate action for such damages. Guay vs. Hunters, P. R., p. 36. 2. Damages resulting from fraud may be set off against the price of sale. Prevost vs. Lerouz, S. C, 3 L. C. J., p. 321. And it was held in Jordeson vs. McAdams Sf Co., that on a demand for damages for an illegal arrest, the defendant can- not set up in compensation money due him for rent. S. C, 13L. C. R., p.229. 3. Comj)ensation must be specially invoked, and the con- clusions to a plea to that effect must be special, and ask that the compensation be declared to have taken place. Gugy vs. Duchesnny, S. C, 1 L. C. R., p. 478. 4. Tht! value of goods of defendant's in the hands of plaintiffcannot be set off in compensation against a promis- sory note. RyanetcU vs. Huntetal.,^.C,\Olj.CK.,\>.^l^. 5. In an action by The Montreal Provident and Savings'" Bank on a Notarial obligation for moneys lent, defendant cannot set up in conipensalion a sum of money deposited in such bank and transferred to him by such depositor. Morris €t III VS. McGinn, S. C, 1 L. C. R., p. 1 10. iSo in the report, but this summary conveys an utterly erroneous impression as to the real holding of the Court. It was decided that a debtor, subsequent to the insolvency of the bank, could not purchase up the depreciated claim of a depositor and offer it in compensation of his own debt to the bank. 6. In an action of damages for an illegal arrest, defendant cannot set up in ctmipensation a sum due him for rent. Jordeson vs. McAddams, S. C, 13 L. C.ll., p. 2*29. 7. A debt need not be claire et liquide to be set up in compensation against a debt certain, provided it be easily proved. So an account for goods sold and delivered may be opposed to a debt due under a notarial instrument. ILdl and Be(md€t,Q,.'R.,Q\j.CR..,\>.lTi. But in an action on a notarial obligation, the defendant will not be allowed to set up unliquidated damages by way of compensation. Chapdelaine vs. Morrison, S. C, 6 L. C. R., p. 49 1. 8. The endorser of an accommodation prt)missory note has a right to set up in compensation, against the holder of such note, all sums of money which the holder has paid or for which he has become indebted to the maker since the pro- teriing of the note ; and the salary of a bank officer, paid by qiiarterly instalments, may be set up in this way against the bank by an accommodation endorser. The Quebec Bank vs» Moison, ^. C, 1 L. C. R., p. 1 16. 9. In an action brought by the heir of an insolvent, deceased, for a debt contracted with the executors, a debt due by the deceased may be set up in compensation. Moss et al. VS. Brown et at., and Hardy, S. C, 12 L. C. R., p. 202. 10. The defendant having become the surety of Perkins, S,mith &■ Co., under a notarial obligation, for advances to the extent of £3,000, to be made by the plaintiff for the purpose of getting out timber, it was hvl L. C. 11., p. 320, that it could not grant a cn/zarde defdut. ; that such a proceeding was only jttriiiitt(Ml in the Inferior Courts. Consent: — r^itigant parties cannot by consent altt r llie njiliire of;i writ after it is returned into Court. Riclutrd and Deuisov^ Q. R., ^ L. C. J., p. 4-2. And the parties cannot, by consent, desist from a judgment which had been n-ndered by mistake dismissing a plea, in order to have the decision of the Court on the merits. Clarke rnis, to the right to rosiliate nndi'r one of sneli deeds. withont specifying which, and without any reference being naide to a penalty, such third parly is relieved (roni an) liability for such penalty. Monaghati vs. JJtntdnf!, S. C. 1 L. C. J., p. InO. U. A contract made by certain parties as vtatidotnircs of certain others cannot bo sued on by the former. Mu/idiiit' ^ nl. vs. Hoyle 4- al., iS. C, L. R., p I. 3. A contract made by an agent in his own name may be sued on by the princi])al. Read vs. Jiirks, C. C, ii L. C .T.. p. 161. 4. When goods are purchased ly a party with a view to furnish them to persons about to ii,ter into ])arlnershi|) to trade therewith, and where the firm have obtained tlieni under agreement with the pnrchiser, there is no liability in the firm to pay the vendor the price of the said goods, there being no privity of contract between them. Ducasse ^- uL, vs. Bcaiigie ^ al., S. C, 13 L. C. R., )>. 13. Contract of Marriage: — Viile Assignment. f* " " : — " CoMMUNAUTfi. Contractors : — A party who VMitracts for work to be done for him will not be held respoi'sible for materials furnished by tliin.1 persons for such work, unless it appear that the sale of such materials has been made to him. Bridgman and Ostcll, Q. B., 9 L. C. R., p. 4.45. " : — Vide Railway Cases. Contrainte par Corps:— 1. A rule for contrainte par corps against a woman sous puissance de mart, though siparee de Liens iroxix her husband, will be rejected, unless notice of the rub' be given to tlui linsband. McDonald vs. McLean and Wilson and Doyle, S. C, 11 L. C. R., p. 6. 2. A contrainte par corps against a married woman upon a judgment for principal, interests and costs cannot be obtained. Scott Sfol., is. Prince, S. R., p. 467. And in any case the allowance i»f the contrainte par cmps apris Ics qrmfre mois is discretionary with the Court. Wooo declured to be void, and tho prisoner consequently cannot be liberated on a habeas cor]) us. Ih> Where application for a writ oi habeas cnrpiif is inaih; to a Judge in Cluimbers, and refused, judicial comity will prevent another judge from entertaining it. lb. 4. An interlocutory judgment requiring JJostonand Coffin, joint-sherifT, to deliver up certain machinery, seized under process of revendication cannot be made execut(iry against Hoston alone, he having, since the judgment, become sole sherifT, and the judgment not having been signified to or made executory against him. McPherson vs. Invin, 2 L. C. 11., p. 313. 5. The court cannot condemn a person to be inqirisoned until he does a specific act, as for instance, to bring back goods that he lias carried off, unless there is a special law authorizing it. Early vs. Moon, 2 Rev. do L6g., j>. 121. 6. The contrninte par corps for damages and costs, which might be exercised in virtue of the art. 2, tit. 34" of the Ordinance of 1667, was abolished by the 12 Vic. c. ^i, [C. Sts. L. C, caps. 83 and 87.] Whitney rs. Dansereau, S. C, 4L. C. J., p. 211. 7. In the motion for contrainte par corps for deterioration of an immoveable property under seizure, under cap. 85, C. Sts. L. C, sects. 29 and 30, it is not necessary that all the terms and expressions of the statute should be included ; but the rule must contain them. Varin vs. Cook et al., and McGinnis ct al., S. C, 5 L. C. J., p. 160. Action en redditicn de compte. Capias ad satisfaciendum. Contempt. Curator. FoLLE ENCHtRE. Gardien. Sheriff. Conviction: — 1. On certiorari it was held, that a conviction against a bailiff for exacting more than his legal fees, will be quashed on the ground that the magistrate permitted the information to be amended, and because no precise date of the offence was given. Ex parte JN'm«, S. C., 6 L. C. R., p. 488. 2. And a conviction will be quashed if the summons states no place where the offence was committed, although — 1 ^td ^^ ;.— _ .^M . ,_, — • _ !v 1 J ■:< 1. A u ■ ^ f M ♦' ... I :, !>i i; i) : h 11 M It Ex pnrte §0 CON Conviction : — tho pluco npprar on the Puco of tho conviction Leonard, S. C, 6 L. C. II., p. 4H0. 3. An infurniutiun suttiiif; out that thn thrcndaiit hud coii(hicto(l hiinsuir in a climirth'rly nmniier at a ehurdi door by k(>c>pii)g his hat on his head (hiring tlic proccMsiun of tiie Holy i^acranuMil, dl^(^losl.'s no logal t)(li'nct', and the I'onvic- tion for such prutciult'd ollcnce will thcrcforu hu (|iiasli(>d. Kx |H»rte Filiau, 4- L, C. U., n. 1'29. And on a lertionri a coiivi(;tioii to constitnto an ollonco nndt'r llio Urd sect, oftiu' 7lh (ioo. IV., <•. 3, [Con. M. L. C, cup. '22, soot. 3.] pro- vidiii^ for tli(! niainteininco oi ^ood order in clnirclics, the act complained of mnst liavo been committed during' divine 8crvic(5. Kx parte Dutmmckil, S. C, .3 L. C. li., p. 4!)3. uiid Ex parte DuUon,th. And a conviction for assmdt will be qnaslied, tliere 1)ein^ nothing alleged to show it was maiie nnlawfnily. Ex parte Iloldcn, IS. C, 6 L. C. II., p. -iSl. And so a conviction nnder the H and l.*) Vic. c. 100, [Con. iSt. L. C, cap. (>,] fir retailing spiritiions licpiors, and not nllcging it to be cIoik; •< withont license," discloses noolfoncf and cannot bo sustained. Woodhoune and Ex parte Ilngnc, h!. C, 3 L. C. U., p. 93. 4. Certainty and precision are reqnired in the statement and description of an ollence nnder a penal statnte, antl nn information charj^ing several otfences in tho disjunctive is bad. And acontession of tlic defendant to an information in the above particulars, will not aid or cure this defect, and no conviction can bo pronounced. And a conviction must be of the offence charged in tlie information, and not of a diflc'rent offence, or of several offences in tho conjunctive charged in the disjunctive. And a conviction adjudging the defendant to be guilty of the several oflences therein enumerated, and condemning him " for his said offence " to pay but one penalty, is bad. Ho'gue and Ex parte Moncttc dit liel/mmeur, S. C, 3 L. C. R., p. 94-. .*>. A conviction by a Justice of the Peace under " The Lower Canada Municipal and Road Act of IH.'iS," must shew — 1st. That the .Tustice had jurisdiction. 2nd. Whether tho road was a front or a by-road, and whether there was !i procis-verbai . And the condition will be quashed if the complaint be in relation to a road and the conviction relate to a bridge. And a public bridge is any bridge over ten feet in length. And under the said act justices have no jurisdiction for moneys laid out in repairs, but only for the recovery of fines and penalties. Matte and Brottm, H. C, 1 1 L. C. R., p. 44.3. 6. A summons issued under the 4th and 5th Vic. c. 26, for malicious injuries to property, must be upon complaint under oath ; and a conviction in which it is stated that the offence complained of was committed " depuis environ hiiit jours'^ is bad for want of certainty. Ex \i&tiG Hook, S. C, 3 L. C. R., p. 496. 7. A conviction by the Recorder of the city of Montreal, for a penalty for constructing a wooden building within the city limits, contrary to a by-law of the corporation, will be quashed, no notes of evidence having been transmitted to i CON 81 Conviction : — thi; cunrt a)K>vc tu hliew whether tlu; opplicant fell within tlif provisioiiM of tlio liy-luw iin boiiig a proprii'tor, or whetlii-r, us .Nuorii lo in his uliiiluvil, he wiin merely a workiiiiiii eiii|iloyr(l liy liut proiirietur. Kx inirtu J^a/nux, S. C. H U C. U., p. 2:)r). 8. '1 hi! .service ol'ti eopy of u .siinimun.s issued hy n niii^is- tnitu, certified hy tht^ clerk of thu peueu, iulli)Wey the iippeuranee of the deteixliiiit, \h siiMicient. (■arifi/iitn and MonlrctU Ilarfttmr Cotnmissionvn, S. (J., ft L, il. K., p. 179. 9. A coinpliiiiit limy he iiiiule, unci Niiiniiiuiis i.s.siie(i fur two otienci'.s, pruvitieil tin? uhject he not litiirrest the tlel'eiid- uiit ill thu lirMt iiiNtuiice. Ami ii cimvictiuii l«ir one nt'such offences, specifying it, is pood. Ih. 10. It is not necessury in ii conipliiiiit fur hreuch of hy-hiw to iiiNerl the l»y-liiw itself, or lo innk«! u distinct ullej^iition thut it i8 in force. //;. 11. A cuse iiiny lu^ n-lnrned hcfore one niupistrule, nnd adjourned from day to day hi'fi>re one or more, it heiiip sufli- cieiit if the trial and eonvietioii lake place hefore »»iie and the same; hut a CMiiviction for two oflifiiccs inflictiiif? only one penalty is had. ll>. !2. A conviction for one month instead of two months may he had, inasmuch as u judgment for too little is as faulty as a judgment for too much, and siadi convict inn will he quashed for want of iirisdiclioii. JCx parte S/ar/c, 7 L. C.J., p. I). All order may he amended hy the S. C. hut not a convic- tion. Jh. No costs are given against a collector of Inland Revenue, j)rosecuting in discharge of a puhlic duty. Ih. The .Tuilgc of the t^^essions heing vestt'd witli all the powers of two Justices of the Peace, hy sec. Gl, c. lO'J, and hy sec. 82, c. 103, C. .S. of C, and hy sec. 3, c. 10'2, of tho C. S.L.C., no appeal lies from a ciuviction rendered hy him under c. 6, C. S. Ii. C. Ih 13. But in another case it was held that an appeal lies to the (Jeneral (Quarter Sessions of the Peace from a cunviction rendered hy the .Fudge of the Sessions of the Peace in and for the city of Ahjiitreal, under sec. r)0, c. G, Con. St. L. C. Ex jHirte Tliom]).son, 7 L. C. .!., p. 10.* 14-. In a prosecution for selling liquors without license, it is not necessary to negative tho averment that the defendant is not a distiller within the provisions of tho 1st sec.ofehap. 6 of the C^onsoliduled Statutes of Lower Canada. Ex parte Mnley, S. C, 7 L. C. J., p. I. The allegation that defendant sold by retail, at one time, fermented liquors, in a less quantity than 3 gallons, to wit: 3 glasses of heer, is suflicient and legal, and such an allega- * This ca^e i« iiiiporlunt, as it appoais Smiili, J held lhi.<», ns the French version «( the ConisoliilBtt'cl Chilli uit\> ilid not reprixluif the oriKinnl StHtntf. In other worils, th \1 wlun the original iSintiitc wnx hi vnrinin't' with iIr- CVmsoliilnied StHlnies thnt the ibrriuT siiniild pre- vail. Thist opininn in ttiipporti-d l>y the lerin.s of the .Statute, ordering a eui'Holid.ition ; hot whether it be >n or nut there i.x the ('(insttiiutiunal wenkiiei>8 in every euiiMolid. And at (^^narler Sessions, it was held, in lliis ciise, that the transferee of a license mnsl comply with all ihe liiriiiali- ties required by sec. 16 and sub-section '2, cap. 6, Con St. L. C, before he can exercise the rights granted by such license. Thmwpson and Bellcmare, 7 L. C. J., p. 74-. 16. A prosecution fur selling liquors without license need not be under oath. FaX "parte Cousirie, S. C, 7 L. C. J ., p. 1 1 2. 17. A Dejiuty Revenue Inspector may validly sign a plaint or in(()rmalion for selling liiiuor without a license. Quarter Sessions, /icyMoA/s tnid Durnjord,! L.C. J., \).22S. 18. A conviction will lie against a partner alone for sel- ling liquor without a license. Quarter Sessions, Mullins and Bellenuire, 7 L.C.J., p. 228. " : — Vide Tavkkn-kekpkus. Co-i»ARTNERsniP : - Vide Pautnekship. Corporation:—!. The bequest of a sum of money to trustees for the benefit of a corporation not in esse, but in apparent expect- ancy, is not to be considered a lapsed legacy. And a similar bequest, to bo appHed towards defraying the expenses to be iiicurred in tlie erection and establishment of a University or College, upon condition that the same bo erected and established within ten years from the testator's death, such condition is accomplished if a corporate and political exist- ence bo given to such University or College by letters patent, emanating from the Crown, although a building applied to the purpose of such University or College may not liave been erected witliin that period of time. Dcsrivieres is. Richardson, S. II., J). 2 IS. And so in a devise of real estate to a corpo- ration, upon the condition that it should, within the period often years, erect and establish, or cause to be erected and established upon the said estate a Univer.«ity or College ; it was held, — that the words erect and establish, &'c., extend only to the erection and establishment of the corporation or body politic forming the University or College, and not to the erection of a building in which the University or College is to be established. The Royal Institution vs. Desriviircsj S. R., p. 224. 2. If a corporation composed of certain trustees, to be sub- sequently named by the Crown, be established by Statute, the existence of the corporation will commence at the time when the statute was passed, and not at the time when the trustees were named, lb. 3. The head of a corporation may bind the body corporate by any contract from which it may derive a benefit, lb. n I COR to COS 83 Corporation : — 4. And corporations nro lM>unil by the nets of their agents, in the same way and to the siime extent as persons are. Ferric and Wardens of the House of Industry. 1 Rev. do L^g., p. 27. ft. The in(livi(hi!il members of a corpDration cannot be im- pleaded in respect t>f tiie atfiiirs of siieli corjioration. The Attorney General, pro liegind, vs. Yule Jf tU., 8. C, 1 L. C. J., p. iJS9.' (). A eiir|)()raliou (Uily constiiiitcd in a foreifrn country may proceed fur tlM> recovery df its debts in Ijower Canada. Lur(H'(iue^-nL and The FninlJin County JJan/i, Q. h., 8 L. (;. K., p. .St2S. 7. (Jemnilly, a curpnratioii must sue in its own name ; and an action in wliieh it purports to be represented by its executivi' will be tlisinissed, and plaintiff will not be per- mitted to amend. The Corjxualion nf the Parish Ht. J^rusa- /em, vs. Quinn, S. C., 3 L. V. .1., p. ^liV, H. 'J'be (.'orpor.itioii of Mo!itreal is liable for damages ean.;ed by the t»vertlo\viiii' of street drains, whieli have become ob- slructeil, and wlieri' such overllowmji- li;is had the elleet of reiuleriiif]; the packa;^es eontaiiiinii the gottds immerehanta- blo ; anil altlioufili the eontenJs ihemselves be uninjured, damafji's will be recoverable. Kiiifian vs. The Mayor, ^'.of the City of Montreal, !S. C, 'i. L. C. .1., p. 7S, And the Cor- poration of Ab)nireal is also Ikh'oiI to iill up an old water course which do(>sdaniag»' tolbe properly *^»f a citizen, within tlie limits ol it.s jurisdiction. \'oyer,rs. The JMayor, ^-c.of the City if Montrvtil fc^. C, 1 L. C. J., p. I(i6. But the Corpo- ration of the City of Montreal is not liable in damages to a person falling into the cellar of a h«iuse burned down, and not r^ built, the lot being uninclosed contrary to the by-luw of the Corporation, the cause of such ilamage being too re- mttte. Belanifer tj- ux. vs. The Mayor ^•. of the City of Montrenl, i>. C., H L. C. 11., p. 2'28. 9. The Ordinance 2 Vic. c. 2ti, [Con. St. L. C. cap. 19,] was intended to vest property in religious bodies, and their j)owers must extend to the perfbmauce of acts necessary to the preservation of their rights. Leslie n judgment in his favor with costs. Brown vs. Gugy, S. C, 11 L. C. R., \\. -IBJ. 6« '. 7. And where the action is brought for a larger sum than jE50, and judgment is rendered for JE')0 and interest, the plaintiff is only entitled to costs as of the first class in Circuit Court, and a motion to revise the taxation of the Prothono- tary, awarding costs as of the second class of the Superior Court, will be granted. Vallee vs. Latouche, S. C. 10 L. C. R., p. 433. 8. And reversing a judgment of the S. C, 3 L. C. J., p. 46, it was held that a condemnation to pay the costs in the Court below, in a judgment setting aside a verdict and ordering a new trial, means all the costs of the trial by jury, and not simply the costs of the motion setting aside the verdict. Ouimet Sf alvs. Papin, Q. B., 9 L. C. R., p. 268. 9. And in an action of damages for personal wrongs in the Superior Court, where judgment awards only JElO cur- rency and costs, the costs will be taxed as in a case in the Circuit Court of that amount. Wilson vs. Morris and Rararia, plaintiff, par reprise d''instance, S. C, 1 L. C. J., p. 266., also Kerr vs. Gugy, S. C, 10 L. C. R., p. 478. 10. If an action be settled as to the principal only, upon condition that the defendant shall pay the costs, such action may be returned into Court and proceeded with for the costs only, if such costs are not paid. Darche ^ al vs. Dubuc, 1 L. C. R., p. 238. 11. If it appears that plaintiff and defendant have settled a case betwen them with a view to defraud the plaintiff's attorney of his C"sts, the action will be dismissed with costs against defendant. Richards is. Ritrhie ^ al., S. C. 6. L.C. R , p. 98. And so when distraction de frais is prayed plain- tiffand defendant cannot settle as to costs without the inter- vention of the attorney. Stiguy vs. Stigvy Sf af..^ 2 Rev. de L6g. p. 120. But in Hebert and La Fabrtque de St. Jean, it was held that where the plaintiff compromises with the de- .■ I I i !i cos 8d Costs : — L, p. +01. 1., that he 'rior term ice of the ts of the . de L6g. a larger Inhere the II be con- . Dougall, n against ! delay of t formel. the costs but only er vs. La. C.,L. R., Slim than crest, the in Circuit Proth one- Superior 10 L. C. J., p. 46, in the diet and by jury, side the p. 268. gs in the *10 cur- cuse in rris and C. J., ly, upon |h action the costs hue, 1 L. settled luintift's Ith costs 6. L.C. plain- keinter- tlev. de Ijipan, it Ithe de- fendant, the defendant agreeing to pay the costs of the action, the plaintiflf cannot enter his action for the costs. Q. B., 13 L. C. R., pp. 66 & 451. And the demand for distraction of costs does not take away the piaintiflf's right to compromise, lb. No distraction takes place until ordered by the Court, lb. 12. But were a shipper ha8 taken out an action to reven- dicate his goods in the hands of the master, who refused to sign the bills of lading, the action of revendication may be returned for the costs although the bills of lading were signed subsequently to the issue of the writ but before its execution. McCulloch Sf al. attd Hatfield^ Q. B., 13 L. C. R., p. 321. 13. But in a more recent ease it was held, and confirmed in appeal, the Court being equally divided, that a plaintiff may personally withdraw an action, in the absence of and without the intervention of an attorney ad litem, although the attorney should have prayed for distraction de frais, Ryan and Ward 4* a^-» Q- B., 6 L. C- R., p. 201. 14. The amount of costs payable on the amendment of a declaration is in the discretion of tiie Court. Daousl vs. Des- <^mps, S. C, 4 L. C. R., p. 425. But on amendment after filing of an exception d la forme full costs of action will be allowed. Boudreau vs. Richer, S. C, 6 L. C. R., p. 474, 15. A plaintiff has no right to demand an attachment for contempt against a defendant, who has been condemned to pay costs, ujwn an incidental proceeding, and who has failed so to do, but such plaintiff is entitled to demand an execution during the pendency of the case. Ferguson vs. Gilnioiir, S. C.,5L. C. R., p. 4-21. 16. Costs in a cause cannot be attached by a creditor, during the pendency of a cause, as belonging to the party, to the prejudice of the attorney. Gauthier vs. LemieuXf S. C, 2L. C R., p. 273. 17. Costs due in a former action will not entitle defend- ant to a suspension of proceedings, unless it appear that the causes of action are identical, and that the parties also are identical. Ixilonde vs. Lalonde, S. C, 1 L. C. J., p. 290. And the non-payment of costs in a former action cannot form the subject i)f an exception dilataire. Lynch vs. PapiUf S. C, L. R., p. 27. 18. Costs are not privileged unless the original demand is of a privileged character. Lalonde vs. Rmoley and Im Banque du Peuple opposant, and Lafrenaye and Papin, contesting the report of distribution, S. C, I L. C. J., p. 274. 6 L. C. R., p. 192. So in an action for rent a plaintiff has a privilege upon the proceeds of defendant's moveable effects for the whole of his costs, and this privilege entitles him to be collocated, in preference to the claim of the lessor of the house, in which the goods are seized, for rent. Jernsvs. Kelly. S. C, 4 L. C. R., p. 75. Also, in a case of Kerry ^ al. vs. Pelly L. C. U., n. 64. 3. Th(! paymei of money in a non-commercial case may be proved by witnesses who witnessed a receipt si(>ned by the party receiving the money, with a cross, in their pre- sence ; and in the eNamination of such witnesses it is irregu- lar to begin by asking whether the amount had not been paid. Neveu, jyere, et al. vs. DeBleury, S. C, 3 L. C. J., p. 87. And in the same case it was subsequently held, that the payment of a sum of money irajj be proved by the attesting witness to a receipt, signed with a mark made by the party receiving the money. Q. B., 6L. C. J., p. 151; also 12 L. C. W., p. 1 17. 4. A cross or mark may be a commen-jement de preuve par icrit. lb. Crown : — Vide Damages. Crown Lands : — Vide Lands Cullers: 'I he appointment of a Board of Examiners, imder the 6 Vice. 7, is dependent upon the appointment of a Supervisor of Cullers under the same act. The Queen vs. The Quebec Board of Trade, 3 Rev. de L6g., p. 89. A labourer counting and sorting deals for his employer is not liable to the fines impos'^d upon persons culling without being duly authorized to do so. The Supervisor of Cullers vs. Gagnon, 3 Rev. de L6g., p. 241. * V. lb. p. 460, lor recti6ca(iun of an error iatlie report of Mr. Justice Aylwin's remarki in this case. CUM to CUR 89 Cumulation of Actions : — The ciimulution of actions cannot be ])U'ikIccI liy a preliminnry pleii or exception d la forme. Hunter vs. Dorwin, IS. C, 1 L. C. J., p. 287. " : — Vide Action Petitoire. " : — " Action Possessoire. Curator: — 1. 'No nctiou en rerendication can be maintained by the ])rc.siim|)tive heir to the estate and succession of an absentee if he be nut cnrator to the e^tate of such absentee, or entitled to the possession by an envoi en possession or final deliverance of the estate and succession. Gauvin vs. Caron, S. U., p. 136. 2. The curator to the vacant estate of an absentee eannot be im[)leaded. in his quality of curator, flir debts due by the absentee. Whitney vs. Brewster, S. C, 3 L. C. R., p. 431. 3. A creditor who has obtained a judgment against the curator to a vacant estate can lawfully direct a personal action against the curator to compel him to render an account of his administration. Valleau rs. Olircr, H. C, 2 L. C. R., p. 4H2. But a curator to a vacant estate cannot be sued by u third party to whom he has assigned his claim airainst such vacant estate, inasmuch as the curator eannot sue himself or be sued by his own assignee. Tessier vs. Tessier, 8. C , 2 or r)e sued l)y hi L. C. R., p. 63. • P 4. In an action to account, brought by plaintifT as curator to a vacant succession, against the defendant as being in possession of the estate, a plea is unfounded in law which sets forth that the deceased died in the United States and that the estate devolved upon her heirs, there being no vacant succession in this country, and that the plaintiff was named curator without notice, upon a ])etitiou of a party not a relative or a creditor of the deceased, nor on the advice of the relatives or creditors of the deceased or of those interested in the estate, and without necessity being shown for such appointment. The defendant in such a case has no right or interest in contesting the quality of the curator on the ground of the objections above mentioned. Sexton vs. Boston, S.C, 6 L. C. R., p. 180. 5. A plaintiff who has obtained a judgment against a defendant as curator to a substitution will not be allowed to take su|)pleinentary cnnclusions by petitioi , setting up a nulla bond, against the defendant is qualiten and praying for judgment against the defendant personal'/. Wainervs. Ger- rard, S. C, 6 L. C. R., p. 4S.'), 6. A curator to the estate of an absentee, who contests and defends, is personally li'ible for the costs of the plaintiff's action. Whitney vs. Brewster, S. C, 4 L. C. .T., p. 298. 7. There is no contruinte j^ar corps against a curator to a vacant estate who has been ordered, by an interlocutory judgment, to pay into Court what the curator admits to be due, for failing so to do. The Ordinance of 1667 only grants the remedy par corps after final judgment. Wood vs. Mc- Lennan, y. C, 5 L. l;. J., p. 253. : — Vide UECHeANCE. : — *' Interdict. * The reporter Meeiii.s to Ih- nt a Iosmi to uiiilHrstHiid the motive of this judgment. It is not oljM-ure. If" a curator were allowed to sue hiiiisell, as such, there would be no legitime tmuradicteur. ::u :i i'i! m il'i 90 CUR to C U S Curatorsiiip: — Vulc Evidence. CuRfi: — 1. A cwre who celebrates the mnrriuge of a girl during her minority, without publication of banns and without the con- sent of her parents, in virtue of a dispensation from his Bishop, is liable for damages for so doing. Laroaque et vir and Michon, S. C, 1 L. C. J., p. 1^7. Q. B., 2 L. C. J., p. 267. 2. A cw^^ who refuses to baptize the child of one of his parisliioners without any just cause will be ordered to do so by the Court ; and further, will be condemned to pay dam- ages. Ilarnuis ^- B.f customs who refuses to admit the goods until duties, as calculated u|K)n the price of the goods, with- out a deductiou of the discount, had been paid. Pateisom et al. vs. Perceval, !S. R., p. '215. 2. The ad valorem duties chargeable on goods imported into this Provin e shall he charged according to tho actual market value thereof in the country where |vurchased. Moffatt et al. rs. Bouthillier, S. C, L. R., p. 48. Confirmed in appeal, .') L. C. li., pp. 235 and 30.^. 3. Pure grain spirits, imported from Holland into this country, where it can be proved that they were so imported with the necessary ingredients to manuntcture Holland gin,. and for that i)urpose, are subject to tlie same duty as gin, and the importation of the sime as whisky (T grain spirits is. in such a case, a fraud upon the Revenue. Torrance and Bouthillier, Q. B., 7 L. C. R., p. 106.* 4-. An entry at customs, by invoice, in which goods are undervalued is presumed to be a fraudulent entry. Lyman et al. vs. liouthillicr, Q. B., 7 L. C. J., p. 169. And where the owners benefit in any way by the entry^ as by taking possession of part of the goods, they cannot ({iiestion the validity of the entry, lb. And when the invoice mentions in effeet that the goods are consigned to the party making the entry, he will be held to be the consignee of such goods within the meaning of the Customs Acts, even although the bills of lading of such goods affirm that the goods are to be delivered to othe/ parties (the owners) or their assigns, lb. And when goods have been undervalued in the invoice and entry, for the jairpose of avoiding payment of jwrt of the duties payable thereon, they are so completely forfeited that the owners arc debarred from disputing the legality or proof of the seizure and sale of the pO(jds. J6. .*>. But in estimating for duty at the market value of the place of importation, such value will be taken to be the value of such gooils by a gold slnndard. Atwater et al. vs.. Bouthillier, S. C, 7 L. C. J., p. 285. Dam : — Vide Water Power. Damages: — 1. Where both parties are mutually blameable in not taking measures to prevent accidents, the rule is to apportioa equally the damages between the parties, according to the maritime law, as administered in the Admiralty Court. J%e Sarah Ann, p. 294", S. V. A. R. 2. V\ here a wharf is damaged by the fault of the master of a ship who has brought his vessel in collision with a wharf,^ the ride of two-thirds new for old may be taken as a guide .^•1 i, -iv !■««('" ■i !■' iiii ♦ The W(iul8 of I be report — " Day, J., dissenting in favor ol tUe rc^po^dent,," is evidvnlly an vvTOTy r^ypundcnt l)uing used fur appellant. J. ^ ! M 1 ■;i 1 1 ! 1 ' i ii^' I ' 1 i 1 !•, 1 1 |i^ Id.. A DAM Damages : — to the Court in estimating tlio dunmges, if the wharf be not in good rei>air. The Harbour Comtnisstonera and Grange, g.B., 10 L.C. R., p. 'J 59. H. In an action of damages for breach of a contract to supply hops, payable on delivery, the defendant having refused to accept the hops tendered, the proper measure of damages is the ditference of the (Hrice stipulated and the market price »t the time fixed for delivery ; and in such a ease the Court cannot order the contract to be executed. BosweU and Kilhorn Sf al., P. C, 6 L. C. J., p. 108, and 12 L.C. J., p. 161. 4-. Uaumges cannot be recovered for the non-execution oi a coulrnet (or tlie delivery of certain specific goods which have l)i'» u destroyed by vis nuijor, and which cannot be re- placed. Russe'l and Levey, Q. B., 2 L. C. R., p. 457. 5. At the dissolution of a co-|»artnership A. gave B. two promissciry notes, on condition that if B. returned said notes within three weeks he might have his selection of goods to the value of the notes. It was held that B. was not restricted to any description of goods, nor obligi d to allege or prove, in an action of damages for the non-delivery thereof, what kind of goods he would have selected. Fdey and Elliott, {.I. B., 9 L. C. R.. p. 349. 6. In the case of the non-execution of a contract of lease, the lessee can only recover such damages as are the imme- diate result of such non-execution, and not the conse(}uential damages which the parties could not have foreseen ; and the plaintiff cannot recover as damages, what he might have gained in consequeiKie of an unforeseen event, by sub-letting the building for a purpose foreign to its legitimate use. So the plaintiff having leased a theatre cannot claim in the shajte of damages what he might have reeeived from (Jov- er n me nt fur giving up his lease, the Legislative buildings having since such lease been destroyed by fire, and the theatre being the only building fit for the sitting of the Legislature. Lee vs. Tlie Music Hail Association, S. C, 5 L. C. R.,p. 134.. 7. The master of a vessel is responsible for damages to •effects carried as a deck load. Gahertyand Torrance ^- al., Q. B., 13 L.C. R.,.p. 401. And there is no need that the con- signee who sold the damaged goods should give notice of the sale, unless the master alleges and shews that he has suffered by the want of notice, lb. 8. For delay in transmitting cargo to its place of destination. ■Orris vs, Voligny, S. C, L. R., p. 35. : — Vide Read and Lefcbvre, S. C, L. R., p. 80. 9. Damages cannot be recovered against the proprietor of a farm by reason of explosion in quarrying carried on by his tenant. Vannier ^- ux. vs. Larchedit Larcheveque, S. C, 2 L. C. J., p. 220. 10. A party setting fire to his land at an improper and un- fitting time, is liable for damages for the destruction of a thrashing machine, which had been brought on to his land to thrash his grain. Hynes and McFarlane, Q. B., 10 L. C, R. p. 502. 4* DAM 03 Damages :— 11. Defi'ndnnts nro linMe to plaiiitifTfor dnninpps il«>nf^ hy wiitor to giMJcls in |)lHintiiI''s cellnr, the wiitcr hiiviD^mtcrcd by nicuiis <>1 a liole lor ii stTvicf pipe li'll opt'ii diiriiiff repairs made by dplcndaiits to tlie stieet. Beliiemi in. The Mayor J^'. of the City of Montreal, S. (\, 6 L. C. J., p. 487. Aixl s»» where the Hooding and ihiina!>e r' suit froni a stoppa^*? in the city dra in. Walsh m. TVtc Mttyr/r tjt-. of (he City of il7o«^ rfo/, «. C, 5 L.C. J., p. 33.5. 12. Daniaj^es may be recovered from the jiroprietor of a toll-bridge for not keeping the road which leads to it in rej)air. Grenier vs. Lept(jinn, i-i. U., 3 L. C. .1.. p. 'J9;). 13. Damages cannot be recovered by a sliareholdcr in llur Grand Trunk llailway Company against the ed al- thought no malice be proved. Wilson is. Morris and Ruvaria, S. C, 1 L. C. J., p. 237. 16. In an action of damages, for the improvident issue of a saisie-airH before judgment, where justification or sufficient probable cause is not made out, but where the conduct was such as to create serious distrust, only nominal damages will be awarded. Dalpe. dit Pariseau is. Rochon, !S. C, 2 L. C. J., p. 120. 17. In an action of damages, for an illegal arrest, plaintiff has no right to adduce evidence of the pecuniary circum- stances of the defendants. Jordeson vs. McAdarns, S. C, IB L. C. R., p. 229. 18. An agent who, in that capacity for a third party, caused the illegal seizure of defendant's property may be ptrsonally liable in an action of damages therefor. Warroi vs. Noad, S. C, 8 L. C. R., p. 177. 19. A contractor for the erection ofa building is liabletoa person for damages, for injuries sustained by such person by a beam faillingonhim from such building, while he was passing in the public street. And such contractor is liable for the negligence of his workmen employed there ; and the •<.. "f 94 DAM ' i 1 \ , s ' 1 1 f fl IF Damages : — oHHi prohandi ihnt there wns no no/^ligpnco will lie on the cuntriicti r. Ifolmei vs. McNiven, S. C, 5 L. C. J., p. 271. 20. And so also n ruilwiiy (*(im|)any will l>n lu>llo fur i\\o vice in the construction of theroud l»y whirh a passenger is kilU'd or njiired, iind the giving way of tlw roadway will !)♦' pnmA facie proof of iuipro|K>r ronslrtic-ti^u ; hut the dc- fonilant. may plead und put in issue that the road was con* structi'd hy competent en hite of defendant's do^, that plaintiii', ai the time In- was bitten, was on defendant's property, there heiiijj uu evidence that plaintifl' was a trespasser. Patulurand tjj" t/x. vs. Pin,ionnault,S. C, L. It., p. yO, and 7 L. C. .f., p. 131. 22. In an action for (hunages in consetjuence of [tlaiutilf's child hein{j severely hitten hy defendant's dofr, which was trained and kept as a lii^htinp; doff, and siiflered to jjo un- muzzled, exemplary damages will he awarded. Fatardeau vs. Couture, S. C, 2 L. C. .F., p }»IJ. 23. The Mayor and Corporation of Montreal are not liable in an action brough by a person who has l)een bt aten during a riot, to recover damages for bodily injuries received and for loss (tf wearing apparel ou his person at the time. Drolet vs. The Mayor ^"C. of the City of Montreal, S. C, 1 L. C. 11., J). 4-OS. Hut in the case Carsnn tj- «/. is. 'I he Mayor SfC. of the City of Moatrcal, S. C, 9 L. C. It., p. 463, it was held that the defendant is liable lor damages occasioned by a mob riotously entering into the house of the plaintiff in the city, and breaking furniture and windows, and spilling liiiNsfn. V. A. 11. 'if). Suit lor, liy a iiiMrincr iifrjiinst the muster, dismissed. The Cofdstrvani, p. MS(), S. V. A. K. 30. Diiiiinges (or liodily injury ctiiinol li<' n'Oovrrttl in y///«rr>, williont 11 >p<'cilic' prnot'or the extent to which tlio person of tlie piirly to rniikeu livelihood hus Ixtm thercdiy impaired. Marshnll is. Tlic (iiinid Tnmk luiilinty Com- pufnj, S. (.'., 1 L. C. J., |). (). Hilt in nnolli( r luMioii of damujies against a railway eonipany lor ncifliirenec by wliifii a man was kdU'd, the jury may aeeord the widow and the next of kill damages as a solniiuni for tii<' lurtavtinent ulthiaight there lie no cvideneo of the value of the li!.'ol'ilie person killed. liavnry tj- al. la. The Graiid Trunk Ruiluoy Company of Canada, C). JJ., (i L. C. .f., p. -H). 31. In an aelioii of damages, di fondant may ajipear and pk'ad even after a delay ol live months and alter scrvii'C of interrogatories sur fails it, articles and allhoiight his fuilnreto appear was attrihutaltle to liis own fault. Ifaydrn vs. Fitz- sim)nons,'S. C, 1 L. C. .1., ]\ 9. 32. In an action for rent brought by the Crown, the de- fendant may set up in eonipensaliou daniagcs for non-f.ilfil- meiit of the contract inasmuch as he did not gi-t possession of the premises at the time promised, lie icau and The Queen, il B., 12 L. C. R., p. 40. 33. In an action of damages by A., for delivering stores to U., the latter cannot ofler in compensation damages alleged to have been incurred, on the buildings oflJ.'s house by A. as a sub-contractor under C Siucissc ^' al. rs. Hart, S. C, 1 L. C. J., p. 190, and confirmed in ai>pcal, 1st March, 18.'J8. S*. The limitation of six months referred to in the statute 7 Vic. c. ^i, sec. 2(5, is aj)plica])le to an action of damages brought against the Corporation of Montreal owing to the not having fenced in a strip of land taken from the plaintiff to construct a canal for the purposes of the water works. Pigeon vs. The Mayor, ^-c. of Montreal, i^. B., 9 L. C. K., p. 334-, and 3 L. C.J., p. 294-. 35. Damages claimed from the Grand Trunk Railway Company, by reason of the alleged negligence of their ser- vants in destroying the rubbish collected on the line of road, being the final act of the construction of a portion of the line of railway, are subject to the prescription of six months under the 8 Vic. c. 25, s. 49, and such prescription is avail- able to the company under the general issue. Boucherville vs. The Grand Trunk Railv:iy Company, S. C., I L. C. J.» p. 179. 36. And in an action for damages by a tutrix to minors in consequence of the death of their father through the negli- gence of the defendant, the demand is subject to the pres- 1:V I I I ' 1 1 II 1 ■ \ 96 DAM to D fi C I I ! li, itr ■ i ''1 Hi 1 1 ' 19 iAA I — J ^id — • 1 ; << 11 l( . <. l it It Dkbentuues:- Damages : — cription of one year. Filiatrault vs. The Grand Trunk Rail- way Company, S. C, 2 L. C. J., p. 97. 37. Diiiiiiij^cs for jiersuiml wrongs are not lialjle (o st-i/iire Chef rs Leonard ^- (d.atid Decary ij- al., S. C, 6 \i. V,. J., p. 305, also 13 J.I. C. K., p. 74. Nor can tlje tlfloncianf. set np in cunipciisation in an action of damages for an illpgal arrest moneys clue liini by plaintitrtor rent. Jordeson vs. McAdams, .S. C.,' 13 r.. C. 11., p. i!2f». Vide Action en gakantie. Apprentice. Bill of Kxchance. Caiuuers. Compensation. Corporation. CuRft. I'rescription. Trivileged Communication. .Saisie-Ciagerik. Slander. Trespass. \'rNI)EE. ■HYPOTllftQUE. Debiteurs soLiDAiRF.s : — 1. .Toint ai tl several debtors, sued under the same writ, are not liable for the litigious costs created by one of them, against their common creditor, and the others although represented by the same attorney are not sui)posed to be aware of the incidents and proceedings of one of them, unless they are signified to them, and the signification of an np|ie!il to their common attorney is not sufficient, lioiicher and Ldfour ^ al., Q. B., b L. C. J., p. 269. 2. Joint debtors, suid under one writ, may be condemned jointly and severally in costs. Perkins rs. Ledaire, S. C, 7 L. C. .r., p. 78. *' : — Vide Laheri;e vs. de Ijoritnier, S. C, L. R., p. 87. Debt not DtE : — Vide SAisiE-ARRfeT. DECHfiANCE: — Where an estate is claimed A litre dc decMancc or « litre de butardise by the Crown, the creditors of the estate have a right to make good tlieir claims, by proceedings for an account against the curator of the estate, before it can be placed beyond their reach i)y a transfer to the Crown. The Attorney General, ^wo ReginA, vs. Price and McGtll if* al., IS. C, 9 L. C. 11., p. 12. Declaration: — In case of an attachment under the 177th article of the custom, the declaration may be served at the Sju'riff's office. Sinclair vs. Ferguson, SS. C, 2 L. C. J., p. 101. " : — Vide Pleading & Practice. " :— " TlERS-t>AISL ' Declarations in arpiculo mortis : — Vide Evidence. Declinatorv Exception : — Vide Pleading &; I'ractice. D£confiture : — 'J he transfer of notes delivered by a party eti diconji- ture is valid. Huchimon vs. Gillespie, 3 Kev. de L6g., i>. 427, 4" Moore's II. p. 378. : — Vide lIvpoTHftQ. e. " Lease. " Promissory Note. « « D £ C to D E F 97 D£cret: — 1. A petition en nulliU de decrrt filed by a plaintifT on a sale of immovfables, will \w dismissed on exception d la forme, by an adjudicatuire,co\\Hi*\vx'\\\ffi\\Vii the adjudicataire is not a parly in tlu' instance, and timl he eonld not legally be bronpbt into the canse by a notice. Joseph rs. B rev iter and Ihddane, S. C, 6 L. C. H., p. +S6. 2. 'IMio deficiency in extent oC land so!d by dccrct jjives a right to the adjudicataire to reqnire a diminution in the pur- chase money but not to seek the nuiliiy of the sale. This diminution will be in [a'oportion to lh<^ price. Grey vs. Todd t^«/.,2 Hev.de f^'g., p. -'^7. Hut it woidil be otherwise; if the lands were deseribeil as havinj; biiildincjs on them, when in reality there were none. L/nyd is. C/apfuim, 2 Rev.de L6«r. p. 179. 3. When, at a sale of property taken in execution, the sale is stopped by the Sherifi", the Inst :ind highest bidder at tlie period does not become the adjiniicataire of, or iicquire any ri{>;ht to, the properly put np, althon,!>h the Sheriff" may have acted illegiilly in ilisc. 4«. An actiiin by an adjudicat ire of real proju-rty against a puny as plaintdf, pnnrsuivatit le decret, to recover the value of a deficiency in the extent of liind sold, cannot be brought de p/ufw, until such deficiency shall have been established in an action to refitrni the ^In J's title granted to the «<•/- judicataire u\u] correct the descr.,)tion of the quantity of land, to wliich action \he j) tuisuivant nnd the saisi must l)e parties. And until stich deficit'iicy be so nscertained, the title granted by tilt! >herin" operates n.s a bnr to any iiction merely personal against the plaintill'. p 'ursuirat/t Ic decret, as having received the proceeds of the sale, und is conclusive evidence of the quantity of land sold and c<»iiveyed, as between the plaintifT and the defendant, until it be legiilly set aside or reformed. Desjardins vs. La Biinque du Penpli', S. C, 3 L. C. .T., p. 75, also 9 lj. C. R., p. lOK. Reversed in sippeal, where it was held thiit the sais't need not be put in the ciise, and that the creditor who has received the money is obliged to refund the excess. Q. B,, 10 L. C. R., p. 32.i. Deed: — Vide Interpretati 'N of Heeds. Default: — 1. When thi; d(>fendant in an action begun hy capias ad resjmtidrndum bus fuiled to nppiMr, and default has beea entered against him, owing to an accident whereby instruc- tions for the defence of Sitir (piality. Levey and Lowndes, cS. C, 2 L. C. li., p. Jf)?. 3. i\Ierohandi;5e innM)rted from abr<»ad is delivered to the consignee when placed oi\ the wharl, and is from tln'ucc at his own risk, provided notice of the arrival of his gotids has been given him. Rivers vs. Duncan, i<. II., p. i'i^K And where goods deliverabU; to "order or assigns" arc landed finm a vi'ssel after the expiration .f ihi' dehiy allowed by law to the importer to la d the same, the captain is not liable for any damages that may accrue thereto, al'ti r they have been placed on the wharf. Sadt t'S. Hescrnff, S. C. 2 L. C. K., p. 4.77 ; Q. B., 5 L. C. II., p. 274. 4-. Where it is agreed that a raft is (o be deliveretl to the advancers at a boom and by the laches of the coiitr.icttir an actual ihdivery takes place briore its arrival there, a suffi- cient possession is established to destroy the lien of ihe nf smell l«>r their wages, liuel vs. Henry and Aiidrrsfni Sf al., C. C, 12 L. C. R.,'p. 149. f). \\"here three chains are attached together for the pur- pose of tielivery, they compose one whole, and di livery of any one will not be held made until all three shall have been delivered. McMaster and Walker ^ al., Q. B., 8 L. C. U., J). 171. (). 1 he placing goods on board of a schooner addressed to ^^' his creditor without a previous sale or agreement U> that effec', does not transfer the pro|»erly nor the possession to the ctjiisignee, and such gttods may be legally seized as the pro- perty of the consignor, notwithstanding the bill ol lading signed by the; master of" such schoitner, if such seiziiri- take place belt)re the goocLs reach the hands of the consignee. FiechHte IS. Car/jcf., >. C, 5 L. C. II., p. 211. A. sells a (piantity of timber to li., a part of the price only to be paiil on delivery ol the tinibi>r, A. makes a tbiivery and li. omits to pay any part of the price. 'J'hcretipon A. brings an actimi to rescind the ccnitracl of sale and by \y:o- cvss itf s'itsie reverulicatifm aihwhea^lu' timber. This action was maintaineil, and the timber so far as it could be iden- tified was ordered to be restored. Moor^al, vs. Dyke ij- «/., JS. K., p. 538. 7. It is not competent for the vendor of goods, bargained and sold lor cash and not delivered in consequence ol the noil payment of the purchase money, to sue for Ihe price. Gordon is. Henry, t>. C, 3 L. C. J., p. 166. 7- '<.. iV -^ 111 \ ' I i \V '1 1 n !•( f 5 ;, ; I I; ^ . ! . 100 D E fi « « Delivery : — i / S. Merchandizn, weighed, measured and paid for, mny be l^ seized iis the property of the vendor. Ncsbttt and the Hank of Montreal, Q. H., 9 L. C. 11., p. 193. — Vide Donation. — '* Freight. — " Sale. — " Timber. DfiLiVRANCE i)E LEGS : — 1. A conimon legacy vests in the lieir nt law, on tlie jirinciple that " /f the testator, sued by sueh universal legiitee, to plead that there Ims been no delivrance de leijs. Ihicfos vs. Diqiont, S. R., [). 230 in note. Ami the nnn. delirrance de legs is only a plea in the mouth of the heir. lb. 3. Ill the case of Robert ft al vs. Dorian rt al., it was held by the majority of the C.-urt. that the effect of a universal legacy is to render delivrance de legs unnecessary. S. C, 3 L.C.J.,p. 12.t * It is suup'sti'd by ihc n-porter, iliat iho exciption of iion-delivraiice de less is only n good pk'ii ill ilif iiiiiiilh of ihf heir, lint ihiM .-iig^fsuoii doeti not rtcoiioilo (lie cliflt-rt-iit l^^r('^«,' indeeil, ill reiKit'riiijr jiiduint'iil in (lie oa-e of llotlu'id and Thihaiidean, Mr. Jusi'i-e Day expressly cundcDuu'd ilie diclnni ol' Mr. usiice Hykf in this ra.-e The .tnliH-iiiii.-iil jiidftinent in Roljeil et al. vs. Duiimi e.>>tal)lish<-.s unollii-r dislinclion, whicli differs ns inui h from the •ugge>tioii of ilie n-poriir i>rihi.s case as il does from llie admitted rule of' I lie old liiw. It, however, i' pees wilh the hoidiiij; of I his case, ns reporietl ; the w.int of necessity of the dilivraiici' de legs iiiriimg eoinpieiely on the will esnbhshiiig a universal lut:ncy. f Mr. Justice ('. Mondelet, while n{.'reeiiip: with the result of the iMd^mciit a.i to the necessity \.t\' tlilivriD'.ce. s:iid thai lie ih<'ii;;lu it was imniaterial whether the leps was iiuit^er- tel or jxirliviilier. ll .-tumid lie reiimrkcd tliiU, liy '• iiiiiviTsal letracy," llie Coiirl evidently intended to expre.-s a lefiacy of nil the properly i>f the testator, so that there should Iw no room for the Ics^ilime, and not any technical distinction lietwecn \\wlilre particulier and the titre iiiiivi istl. ()( coursr, iheargiiincnt wh;eli Mr Justice Badyley ilraws fiMiii llic nli«eiR'e of le"ilnne. would not apply where there is only a legs jtarlicidier, lor, in siicli a case, the ttgitinie would .still sulv>i»i /or the remainder, unless it lie admitted tliat liie case of Qtiintin Dvlif/isital and Girard rt al. (a-i reported in the vol. 8, L.C. II., for the holding ol the report in the .liirisi i^ evidently inexaclj deeide.s, that where there is a will at all llie legitime is exeliided. Ihisvnryitig jiirispriidenee it is impossilile to reconcile. It indicates merely an extreme hostility to I he 111 w oUAV/fn/z/re^ind thix hostility lakes its rise in the occasional iiieoii- venience caii.sed liy the frivolous exception that there has been no priivicnf-demiDidr en dilivraiiee de legs. This centiment is natural enough; but if felt so strong'y when this exception is set ii|', hnw much more stron(,'ly should it maniftwl itt>eif in the endless objec- tions to procedure which are uiged in the piaetiee court? Is it not notorious that nine- tenths of the olijectioiis there raised are so solely lor the purpo^es of delay { .Siill,noono would pi'op(.)se to make the rules of practice merely arbiliary, or I reverse the rule " la forme empoite If /Mid." That this is the real explanation of the diversity of opinion.^ expre.s.-etl on the Bench l)ecomes clear when we look at the unsul»tai)tial reasons urued to deliat the ex«'eplion. In ihei mentioned, for instance, one of the Judges fays : thit the unli- mited rijilit to lic(pieatlt by will leaves us in the same position as in the pnys de droit eerit f and, therefore, he ( oiicludes thut ditivratice is no longer neeewary. Now, without sloppioff iv.iL. , rriiiy be the Bank ir at law, is not (li- ol)t lined, Wiis held . Jiut in \V!1S lu'ld, )• I'-^^iitee, ircd; the ,c.4,s. 1, OStfllM:'!!- Iv.is l)een pitted the he wholo tiprship is ator, sued lieen nu II note, he mouth wns hekl universal S. C.,3 ■i'.f K only n •rt'iil arrfls ; LhiM'Tf Day pit j(i(l;;iiient h /riim the [Id law. It, •ssity ol' thy lit as to the as iniiver- III fviiliMilly loiilil lie iu> //'(•/■ and the lllic ai)«fni.'e H l'H>C. tlio JoC Quintiii lliii^ ol the |ie Ugitimt an extreme bnal II I eon • l(vni)ide e>i when this Ik'fs objec- ihrtl nine- (lill, no end 1 "/(J forme |.|)re!*.-eil on Jdelial the It the iinli- ^roit ecrit ! lit stopping D fi L to D E P 101 DfiLIVRANCE DE LEGS : — 4. Ihit in the cnse of Blanchet and Bfanrhet. it wns held, in the Q. H., that since th<' piissinpr of th(! Act +1 f!eo. III., oh. +, diUvrance dc legs litis ceased to b« necessary. 11 L.C, U., p.204.. DEMURRAor : — Without an express agreement, demurrage Ciinnot be charged by the master of a v«'ssel for delay in unloading by consignee. The proper remedy is an action of cl.i mages, but Mich diininges must be specially proved* MircJuind vs. Jienaud, S. C, 6 L. C. J., p. J 19. Deplackmknt : — Vide Lease. *' : — " MoVKABLCS. Deposition: — 1. 'J'he deposit ion of a witness, not certified by the Pro- thonotary, cannot be retid. La Banquc du Pcuple vs. Gugy, S.C.,9 L. C. R., p. iS*. 2. Mil rginal notes, not certified, do not annul the deposi- tion ; but the omission that the witness is notiillicd to either of the |)i»rties. within the prohdiited degrees, does. Lauzon vs. Stuart. S. C, 4 L. C. .)., p. 126. to tiKiiiiiV" whi ihfi- the St«tiit<: -ll (>eo III. and the QneU'c A<-1 liiiv*- put (is exactly in the same ))iir»itu>n, as regards wills, at. lho»e wlm livetl eti jmi/.i de divil eiril, it doeN ii'it seem to me hi U* II I ei'«s.»Hry coii.'eqiienee ol that lef;i>lHiiott,ihat all our jaw.flepeiidiiifr I'li our pre- vi()ii> po>itioii, lint not mentioned in the Aets ol the l^ui>laHir«' liy which it wiis c)ianf;ed, shciild lie ahi'ouiitecl. That only enn l<« deemed Hlirojjated, liy iniplieatii'n, which is iiieom* pHiilile will) llie more recent legislative Act A^aiii, llie rest of'ihe liidp-* in thi> ciise seemed to ihiiik" iliai ihe dfinatide was liniieces aiy, ihere U-inf^ no Ivi^ilimr where ilie tesliitor had beijiieiitneil all his pro|)erty, and the rule, lessntile cans" reisut ejlfctiis, was iiivuked. The rule is a >oiirid one ; '>ut it must hv borne in mind ihat (Jill/- simiil mm in aliiji'd viliaUi esl,])rrdit offirinm, siiiim. Nnw the ijiiestioii is, xiinply, has 'he c:uise ceased, tliHi is, llie whole I'ause, or all thecaiises I ll may at once lie admilt. d. that where there was a/ci'iViw ilieie was ne<•e^8aril)l^»^lld i-videmlv an additional leason (lic oidei plead most elocpieiitly, it* not ineumpntiluc wnli ihe uidimiied ri;;ht to lic(|iieaih ; it id iioi. iliereliiie, ulKilished or in any way nnxllied by the statute aliove mentioned. It would ni'l U; diiliiiilt to Mi^ifest laneilul cit.«es, lesiihiiisf in lir«'ache> ot the eeace, win li iiii;;hl arise friiiii Ihe disu«e ol ihn demandu en delivranif df hgs,h\\\. I shall only hIIiiiK.' to one. It is where ili>- iimis ol the will raise a doiibi as to whom ihe te«taior iiidi" ales. The li)!lowing rase, will' ll I liamd in maiuiscripi in an old tiilio, lurni.^hes an example ol'a ease ol'lhis kind. It has no dale, but I copy the whole ; " Koi.i.E Dii LuNni." " l.a He. Dnbreuil avail 'iait un U-gs unx panvres de la paroisse St. Siilpice. " Le t'lire lorma Ih demande en deliviance di lefjs ; niais I'li6iiital-f;eneral le liii disputa. " Lcs moveiis des administralciirs e aient ipie jiar I'Kdil de la liindatio de IMiopital- ^e'eral t<>us le;rs tails aux i>auvres liii appaiteiiaiani ; lis invoquerenl phi.sieurs arrets ciinfir- inaiil's de anies font eireuler feur» !iii«;ralite» dans le sein de Iciirs IVt-res mdisenls. Coin- bieii de tami les lu chaute intienieiise ne soulient-<'lle pas |iar ee nioyen,qui n'liscraient, .sans eelle viiyc, ni demnnder ni reievoir: tanr im- .source, si preeieiise, «e serait, porlei- le coup le pins till e>te a In .soi-iete, un eri vreie nil s'eleveiait de tons les euMirs, et la ]iatiie e|)loree gem rait siir le> desoiilres qn'iin sysieme rtiis>i biziirie ti-rai' eelorre .... '> Anti (III 2 ' Mai qui ordoniie In ile ivranee de leffs aux panvres de St. Siilpice." ]t is a ways advtiiitaueous to tianiiiiel ihe liiii;oiis sniior, but evt n th^it may Ih> aceom- pli'«he(l at lo.i arreal ii co.^t. In nixkinf: lh''.s»' remaiks, it must, oC com e. be iiii(lcr~iot)iI ihat the ob|ecl is not to eritieise ihe jlidumeiit in the ■ ase oC liohert and Dwoii, ns ,t whole, which ai'pears lioiii oiher eonsidernlioiis t(» lie correct, but the motive of tli<' particular holilinu: as repotted. In a rase ii( Hlinirhft ■f' .?/. mid lHaiirhrt, lieinar an action by a lesniee ol the wlioli; sue- ce.ssioii ol a le>.iaior, »w ■lilirraiice de /ej^^.i, ajrainsi the heirs at' law, ihe de eiiduiits pleaded tlmt h>' acliiiii was idle, no rfc//'<7yi/«fff b iiijf necfssiiry ; but the Sn|)eriiir C/niirl. siiiin!r at Qlielitc, was nyiiinsi ihem. The respondenls, I'Kls. en del. de Icjrs in llicir /./c/"/..'. have, with lull' h aptiie-s, ijiiis placed the question : •'.... tf >ie sVif ( pis miilrni'iit dc l^eiivoi tn iHisxrfsioii . mills de III pretive de. In vididiir dit litre du legnl.nire, de In ri'inininii'S.nire dv testiimriii , roiiirndiitoiremeiit ave.r l^lierititr." But in appeal this judtiiiieiil was rever.'setl. Vide Vbo. Dku vranck de Legs, No. 4, ,<.. (I .V ; 1 1 ' ■^ * /■ I I '1 li .1 i' 102 D E P to D I S l.^- Deposition : — 3. The omission of the wonls " y pei'iist.f" at tho oiid of fi (Ifposition is not latiil. Citrden el (U. vs. Fin'ey rt al., IS.C, 3 L.C.J., ,). 23'2. Deputv-Siieiufp : — The children of tho Dcpnty-shorifr iire not liaMe to lh»' sherifTin un !ictit>n to account lor moneys received hy their liilher, in his capacity of depufy-fsheritF. Perry ^' Uw^y, l'.C.,2 Ilev de Lej;.. p. 3-27. Desaveu: — 1. One of two co-executors cannot hrinj? nn action for the estate. (Mther in his own name or in th(! names of hoth, without concurrence of the other Clement, vs. G'eer, L. R., p. 23, and 4 L. C. K„ p. 103. 2.. A parly who excepts in tlie form of u desaveu, must express that l\w desm eu \ii made by himself personnally, with the aid of his attorney, or by his fonde de procuration. Hart rs. Ilirf, S. C, I \\. C. R., p. 307. 3. The action fn desaveu may not he returned before the rep;(dar day of return, uuh'ss notice be jriven to the defend- !uit en desarru ; and the action eft tli'smru will not 1)6 r( ceived if the principal cause to which it refers lie rn dilihpre. La Soc.iete de Construction Canodienne vs. Lamon- t gne, and the said plaintiff en desaveu vs. Lafrenuye, i5. C..3 L. C. J., p. •ii.'i. " :— Vide SUBSTITUTION of Attorney. Descknt :— Vide Douaire. Descente suR LEs LiEUx : — fVrfe Robert vs. Danis, 11 L. C. R., p. 74. Destitijtidn de tutelle: — Vide Action. Desuetlhe: — 'I'he mode of al)Miratm. V. A. R. Detention : — Vide W'agls. Devise '. — Vide Alien " : — " Corporation. Discretion : — What is nndirstood by the term " discretion" which Courts are said l(» exercise. The Ajnes, p. .')3, S. V. A. R. Discussion — In an action airainst sureties on a bail Iwind in appeal the absence of any ullejj^ution to the eflect that the poods of the principal debtor have been discussed, cunnut Ih* raised by a defense en droit.. Thorn vs. McLennan tj* ''^- ^ ^- ^• R.. p. +03. Disrating: — I. Tln^ pt>wer of the mast(>r to displace any of the oflicers of the ship is undoubted, but he must be prepared to shew that he had lawful cause lor so doing. 'The Sarah, p. H7, 8. V. A. l\. 2. The piirty discharged from his office is not bound to reniitin with the shij> atler her » rrival at the first port of discharge. Jh. Distraction de frais: — I. When distraction de fr is is prayed by the action, the plaintiff and «lcfendant cannot s-ttle as to costs without th«' consent of the altorney. S'l^uy vs. Stisuy tj- al., 2 Ilev. de L6g., p 120. \\\\\ \n Bya.n and Ward Sr / , Q- B„ (i L. C. H.. p. 201, it was h.ld (the Curt being equally divided) that plaintiff may personally with- draw an action without the intervention of 'he attorney, although he may have prayed distnicliuii of costs. And DIS 103 Distraction de frais : — demand fur distraction de frais in an action not returned, can produce no legal effect in favor of the attorney. Rol- land IS. Ldrivtire, iS. C, I L. C. J., p. 82. But it is other- wise if the action have been returned. Charlcbois vs. Coulombe, S. C, 7 L. C. J., p. 300. 2. if <^2«//-aci!{ow be not demanded when the judgment is pronounced, it cannot be so afterwards, without the presence oftlie piirlits. Ireland vs. Stephens, 2 Rev. de l^eg., p- ^2. 3. A motion made in the Court of Appeal f»»r distraction of ihi' costs incurred in the S. C, will be grunted. Co?iiersf and Ciarke, Q. B., 12 L. C. R., p. 402. ** : — Vide Costs. Distribution: — 1. In pre|)4iriug u report of distribution, the prothono- tary in Ixmnd to assume that the allegations of an uncontested opposition are true, and frame the report su;cordingly. If there is error, the report may then be contested ; but if the fe|M)rt be wrung, owing to unfounded allegations of fact in the opposition, then the opposition must be contested. Doutiieij vs. MuUin, t^. B., 13 Ij. C. R., p. 24-f). 2. In ciTlain ciises the Court may overlook the mistake as to form in contesting the report instead of the opitosition. lb. 3. The report of distribution cannot bo contested aflerthe delay fixed by rules of practice, even where a sf»ecial case is shewn, supported by affidavits. Forsyth vs. Morin. <^- cd. and " ers oppts., S. C, 2 L. C. .T., p. :)9. But in the case of Wtxtdman is. Letournrau and Letourncau, i>. C, 3 L. C. J., p. 27, it was held that with the pt^rmission of the Court, on cause shewn, an opposition ajin de couservcr iniglit be filed at any time before the h'lnologutiun of the report of ilislribiition. And in the case of Prevnst vs. Delrsdrr /iters and Frolhifii^ham,^. C, 3 L. C. .1., p. lUfi. it washeUl, that thi' contestation of a judgment of distributio i will be per- mitted at any time before its liomologation, on cause lieing shewn and payment of costs. And so also in Ciopin vs. Nagle and Nuglc. S. C, 4- L. C. .1., p 286. But in Ranisay vs. Ili'chins -11, d Ramsay, 8. C., 4 L. C. J., p. 28f>, it was held that where the omission was not dm* to the oversight of the attorney, tlie Ccmrt will not allow tlie opposition to be filed so as to disturb the partita collocated, but will admit it so as to give the new oppo^ant the moneys not distributed. 4". It is not necessary fnr iin opposant who contests a col- location to the prejudiije of another opposant, to set up in his nutyens of contestation, his own title or interest to or in the proceeds of the sale «if the lands, collocation of whicli pro- ceeds has been made in lavor of the other opposant. Walker Sf id, "iid Fertis, and the Montreal Permanent Bdg. So. eta/., a L. C. .1., p. 299. .*>. When in any coiitestntion of an item of collocation or distribution, the title on which the opposant Iims been collo- cated, is contested, costs are given as if the opposition had been contested. And the class of costs is governed not by the amount collocated, but by the amount claimed l)y the opposant, w ho is considered as plaiiitifi', the coniesting party being looked upon as defendaiiL Doutre vs. Gosselin and Gabouriault, S, C, 7 L. C. J., p. 290. ''y 1:v ■i. 104 D I X to DOM I DiXMEs: — 1. Ill Cunnda dixmes are not subject to the prescription of a year. Blanchet is. Mortin et a/., 3 Rev. ae L6g., p. 73. And so it vviiH in Brunei is. Dey'afdins,B L. C. K., p. 81. Bnt in Theherge is. Vilhnn, !>. C, 3 L. C. R., p. 196, it was held, that tithes di» not run in nrrear — that the action chiiming is prescribed by a year, and Ihnt the defendant cannot be helil to tender the oath that he has paid them. 2. Township lands are not subject to dixmes. Refour vs. Senecal,C. C, L. R., p. lO*. 3. A simple letter missive addressed to the cure of a parish by a former paroissien, informing the former that the latter h.m the payment of tithes thereafler. Grarel is. Bruneau, o L. C. .T., p. 27. 4. Dixmes are to l>e divided between two cures in propor- tion to the time in any year of the incumbency of each. The succession o{ trures is subject to the same tli vision. The ecclesiastical year, as regards dixmes, counts from St. Michel, and the <^i!a;mfs are payable at Easter. FUiatrault vs. Archamliautt, S. C, ^ L. C. J., p. 10. Divisibility: — Vi«itf >ervitude. Doi. : — Vide Action Resolutoire. DoMAiNE 8EIGNEURIAL :— The cultivated domain may be taxed for the purposes of elementary- schools. Caldxcell and Let Commissaires d''Ecole de St. Patrice de la Hinh'e du Loup, 3 Rev. de Lfeg., p. 3(1+. Domicile: — I. Service at the house where Defendant, who had gone to California, lived u month before, is bad. Kelton vs. Manson, S. C, L. R., p. 79. 2. Service at an hotel where a party, who has no other domicile, : eiierally resides, is not sufficient. McDonald vs. Seymour, S. C, L. II., p. 79. 3. Service at tl>e place of business of a co-partnership of an action for lease of business premises is sufficient. Ber- thelet IS. GaJarneau et a/,., is. C , L. R., p. 109. 4. The domicile of a husband is where he usually resides and carries on his business, notwithstanding his family resides elsewhere. In Lower Canada, the law only recog- nizes one domicile. Kay and Simard, S. C, 1 L. C. J., p. 167. 5. Plaintiff must allege the domicile where he resides and not that of his place of business. Dinning vs. Be/l et al., S. C, 6 L. C. R., p. 178. Bnt plaintiffs whoare merchants and co-partners, may allege their domicile as being where they carry on their business, and they are not obliged to allege their domicile as being at their place of residence. Janvrin et ul , vs. Lemesu'i'r, S. C, 6 L C. R., p. 177. 6. An opposition made through the ministry of an attorney, will not be dismissed on nution, on the ground that it does not contain an election of domicile. The proper way to attach an opposition on the ground that it does not contain an election of domicile, if objectionable, is by excrption d la forme, and not by motion. Murphy vs. Moffat and Levey et al., S. C, 8 L. C. R.. p. 477. 7. Where a deleudant is sued in a district other than that of his domicile, on the pretext that the cause of action arose DOM to DON 105 Domicile : — in such district, the tf/to/ff cansR of action mnst hnvo nriseu in the district in which the action is hruiiphl. Srnrcal find Chenevert, Q. B.. 6 L. C. J., p. 46. Also Rirard vs. Lrduc, 6 L. C. J., p. 116. 8o whcr.T •joi»ds are sold in one district and delivered in another, the purchaser ciinnot he sued in the district where hro'.jgJit, if it be not the district in which he is domiciled. Pt. *' : — Vide Ceutificate. ** : — " Inscription de faux. Donation:--!. Constant and habitnal drnidcenness is a pitod cause for the resiliation of a donation. CoWurc is. Begin, 2 Pev. de Leg., p. 60. A donation cannot ho revoked lor ingrati- tude against a third \)aTtY, cession n aire of the donee, although the third party have assumed \\w payment of the charges of the donation. Martin vs. Martin, H. C, 3 L. C. .1., |». .'i07. 2. Neglect to pay the arrears of a rente iin<:rre is not a cause for the resiliation of a donation suhject to sueh rent. 2b. 3. Ail the parties to a deed of donation must be before the Court before sueh deed will \ie set aside. Jh. 4. A (iomxt'wn d litre onereux cotitain'mg chiiTgrs eqtial to the value of immoveable properly thereby given, cannot be rescinded by reason of the stibse(|uent birth of a child, such donation being in the nature of a sale. Sirois vs. Micfuiud, S. C, 2 L. C. R., p. 177. 5. A donation onereuse gives rise to the pnyment of lods et ventes. La?)iothe et at. vs. Talon dit Lespcrancc, Q. B., 1 L. C.J., p. 101. 6. A donation inter vires of real estate, by a father to his minor children tainted with fraud towards the creditors of the donor, is inoperative. Marrinn and Perrin, t^. IJ,. 6 L. C. R., p. 404. And a donation from a father ami mother to their son, of all their property will be set aside as in fraud of creditors, notwithstanding that the donation is subject to the maintenance of the ilonors during their lifetime. Lavaile vs. lyi])lante and Lujdante, S. C., 10 L. C. R., p. 224. 7. Donation en fravde V. De^tarats vs. de Sales Laterriirey 1 Rev. de L6g., p. 4 1 7. 8. A donee Ijound to pay the del»ts of the donor, may be condemned to pay the amount of a judgnu^nt rendered against the vacant esbite of the donor, posterior to the date of the passing of the donation, upon the mere prodiietion of such judgment, and wilh'Ut it being necessary lo prove that the debt existed jirior to the passing of lh<' donation, other- wise than by what is stated in such judgment. Aifhcin vs. Alhopp. S. C, f) L. C. U., p. 367. 9. A riglit reserved by donation entre vifs, to b«> furnished " arec des vetements suffisants et convenaJdes pour chaque siiison de I'annee^'' H' left in abeyance, cannot afterwiiril> be con- verted into a demand for money. McGinn and lirawderSy S. C, 1 L. C. J., p. 176. * Cointi I\Urtl!ti li-iiiiMiii I' ! il I >■ i' I J , ' ' tl ' ' f 106 DON Donation : — 10. A plainlin'inntlc u ilced of ilunutiun of ri>nl and per- sonal |tro|it'riy in fuvor of liiNsoii, sultjfc.t, to u rrnte liag^re, n\u\ uiWrwiinis nnult^ nnotlicr doniition ul other rinil property to the lionet! for lil'e, snliject to a rtnte i'in his behalf by a stranger, is a sufficient raiilication of a donation, and tin- covenants contained in the donation in favor of the donee must be fulfilled. Judd atid Est]/, q. l\., d L. C. II., p. V2. 14. A deed of diMiation of moveables by a marriage con- tract, does not require an actual ilelivery. White is. Atkins, b. C, 5 L. C. U., p. +20. 15. 'I'be heirs of a donor can invoke tlie nullity arising out of the want of insinuation of the deed of donation. Leroux ct id., is. Crerier ct at , S. C, 7 L. C. J., p. 336. 16. A donation onereuse need not be insinuated nor registered. Lnjlcur vs. Girard, S. C, 2 L. C. .T.. p. 90. Lernux ft ai., is. Crener it ul., t?. C , 7 L. C J., p. 336. 17. A donation onacuse of which the cliarges exceed the value of the thing given, is not null Irom want (d" insinuation. Rfkhon tt ux. IS. Duchine et ux, S. C, 3 L. C. .J., p. 183. Poirier is. l.acroix, 6 l^. C. J., [i. 302. 18. The rcsiliation of a donation of immoveables, of which the iloiH'e remains in possession, cannot be opjHised as a reason for not paying certain sums of money to the creditors ol tlie donor. Poiriir vs. Lacroix, .'^. C, 6 L.C. J., p. 302. 19. A draft of a deed of r.ititication of a donation, filed by plaintifT as an exhibit, and vvhicli (or one to the like effect) it is demanded th,tt the defiMidiint do execute, may be taken cognizjince of, and adjudged upon by the Coint without the said draft being detaili d at length in the declaration or other pleadings, and a deed of donatitni being valid, a promise therein contained to ratify ihe same at a certain time is obligatory and cannot be avoided on the ground of there being no consideration for sueli promise. Easton vs. Enston, & C, 7 L.C. J., p. 138. ! \ DON to DOU 107 Donation : — *20. A thinl pnrty wlio is onrii-hrd by a tIp«Ml <»f (lonnlion niiiy sue nn tlic euiitnict although not u |Nirty tu it. Duratid IS. Durand. [j. K., p. f>9. '1\. 'V\\v (hmiitioii ofiiiovcnhleH m\\i\v hy n hiishiiiid to his wife, still II niiiK)r, liy contnict o[ iimrriiigi* cstalilisliing st'jKinUinn de bntiH is a I'laiul with n'S|K-ct to a pcrsoii having ucliiiu) against hiiti ut the time of his marriage litr .seduction, anil the wife cannot have mdin-lt'it'e of siii'h niov('al)U;s made upon i\w hushaiid, in satisluction ol such olaim. Cha/iuf. IS. Btrrif and Suns Cartwr, S. C, 12 L. C. K., p. 172. :— Vi!. Doitaire: — I. The decease of the husband before his wife, gives opening to the wife's dower, unless there be a forinal stipu- lation, renoiineing expressly to the dispositions of the eiistoin. Mcrcicr is. Blanchet, liigne'l vs. Henderson, 1 Rev. de Lfeg., p. 122. 2. 'I'he performing an acte dVieritier l)y the sons prevents them afterwards renouncing the succession of their fiilher and taking their share of Ihe dower created by their father. Fi/ion Sfid. vs. Delieaujev, S. C, 5 L. C. .!., \u PiS. y. The stipniation of ameuhlissement in a coiitrnct of marriage excludes tlie legal or customary dower on the imnienh/es anieub/is. Toussaivt ^' al. vs. Lrhlanc, S. C, 1 L. C. R., J). 2.'>. +. A Widow who has been condemned as commune en biens. to pay a debt of the community, may claim her dower in [iref rence to the creditors of the cominuniiy. although .she has not renounced thereto, on tlie principle that she is only bound to pay the debts out of what she receives from the community. Deliste vs. Richard, !S. C, 6 L. C. It., p. 37. f). An acquet, the price of wliidi has been i)ai//'/es. And suppnsing tlu; tftoit d\ti»ciise ('oiiltl Ik» clniined ill llic Niihilivi.sioa bclWfi'M llic tippr/is, il I'oiiltl uily Itc liy ilw cldcNt tarn tiikiii^ llic ((uitlity ol'licir ol'tlit* piirty clmr^t'd Willi sill) liliitioii, his liillicr or mollirr. l)elir//rf'rut/ie vs. Dclic/trj'nnlle Ji,- uL, i>. C, A L. C. 11., p. IC I . 1. Ill inattors (irtt'sfiMiiciitary siurcuNsioii, the droit (Vitinrsse, ill tli(> piirtitioii ()( hirns tnJt/cs car. only siiltsi.st in virliic of a Kjx'cial pro isioii ; and llif prtivi>ion of a tcsliiti'i lo th*> elU'ct that lluj overplus ol' his /liius tiolihs sliull lie dividi'd hclwccii his two oliildri'ii in siicli a wiiy as to fjivc tin- cider two-thirds and tuie-third to llie oilier einldreii aeiMrdiiijj; to tim law of I'iefs, eliarffin^ them nevertlu'less Willi d.hts in proportion to tlieir le^ of the House of Assembly to take evidence, has no right . i tction if by the dissolution of Par- liament the committee is precluded "rom making its re|)ort, the statute enacting that " the Conunissioner shall, imme- diately after the .'eioct committee shall have made their final report to tin i House on the merits of the petition, be entitled to d uiand and receive from the parties ujHin whose application to the Select Committee smdi Commis- sioner shall have been appointed, fifty shillings lor every day which such Commissioner shall have been engaged on such commission, and his travelling expenses. Poicer vs. Bezcau, S. C, 5 L. C. R., p. 253. But under the recent Ebction Petition's Act, 14 & 15 Vic. c. 1, [Con. St C, cap. 7, sect, 131,] a Commissioner employed under it, has a right of action against the party or parties on whose upplica- 'flTP"^^ .Mi! ^ ^ ' ^1 ^ ^ • i H li :' . II III i 1 \ h '}■■ ^ . iLii 110 E L I<: to E N G Election : — tion he was appointed, for the fees due him ns such Com- mlNsionor. McCotd vs. Be/lift^hnm (f- al., S. C, 1 L. C. J., p. 174. And the fees allowtul to such Commissioner are assignable and may \te recovered ns well from piirfy con- tf.stiiig t\s from sitting member, who may be sii(' <'!ei'tors (pialiperty upon the priee of the sale of such property. Murphy vs. O'Doftotan, JS. C ,2 [j. C. W., p. 333. 3. Immoveable property, helil by the lessee after the expi- ration of an emphiteotic lease, may be hgiilly sei/.ed as beloiifring to the lessor to whom it niusl revert. Iluot and J)anais, (.1 li., 8 L. C. K., p 235. " : — V/dc Loos et V'entes. Endohsatio.n : - \ iile Pkomissorv Notes. Endorsi.h: Vidf Compensation. English Civil Laws: — The I'.nglish civil laws were not introtlnced into Lower Canada by the proclamation of I7ti'i, nor by the liii|»erial Act ((.^nelue Act) ol HT-t; and by tin- Imperial Act, () (leo. IV., c. 59, the English laws have oii!y been in- Irodiiced into Lower Ciinada in respect of lands held in free ami '.Hinmon .soccage, in the p;irliculars of convt Viuice, descent or inlu-rit.ince, and dower. Sluurt vs. Buwnuirif S. C, 2 L. V,. IL, p. 3()9. English Language : — i he writ cd' ^b^ndanlns shouUl be in the lan- gn.iiif of the defendant. Hurnel is. Joseph, 3 Uev. de Leg., p. 400. • In so fhr US rt'^jimlN laii^iiiig.', ilii.s Siaiiro wn» nmt-nded by 7 Vic, (-iip. 16, ^^■^^ 31. £NQ 111 Knquete : — I. The Court of Appruls can drdor an emjuSteon a reprise (Vinstance or on othrr iinahigoiis proceed ings. McKillip Sfcd, vs. Kaufitz if al., 1 Kev. tie Ltj;,, p. 152. 2. In the ahsenee of the retnrn to a commissinn rnsiutoire, issued at the instance of the plnintifl', a deiendnnt j-imnot be compelled to proceed with his enquite. Mac far I nr is. Bf-esier, S. C, 2 f^. C. II., p. 23H. And it is not com |h tent for the i)laintifls to compel the defendiints to goon with their enquite in the absence of cerluin of plaintiU's exhibits, attached to a fowwm/o» ?o^'rt/o/yp. issued at the instance of the plaintiff, and not returned ; iind defeiidiints are, undtT any oircumslances, entitled to adduce evidence after the return of the commission. Foster ^al. vs Chdinhcrhtin ^al., 8. C, 2 L. C. J., p. 2S5. 3 That where a plaintiff, during his cfiqi/iHc, Inis been allowed to amend his declaration, he will nt)t be allowetl to proceed further with his enqvHe until he has iiniendrd his declaratiirii and defendant has been allowed to plead dc tioio. Mu?ift t$- nl t'v. Lambe, .S. C, (i \j. C. J., p. 301. -l*. The Court will not compel a j)arty to proceed to cnqit'te during the weekly sittings. Qucsttcl is. Duncgani, iS. C., 1 L. c. 11., p. n.^. 5. In the absence of any restraining power in the rules of practice, or of any order confuiing enquete days in term to cases ca; 7? '/•<<■, the Court has no power to prevcMit a party from proceeding with a contested case during the iiiquite days in term. La Danque du Peupl-i' is Rat/, .S. C, 2 L. C. R., p. 239. 6. The Court cannot order that in any purticidar e;ise the defendant shall be all wed to proceed with his cnqu tr from day to day until the same shall be completed, the law re- quiring that the matter of cnqu fes shall be regulated by rules of practice applicable to all cas.es. Brown vs. (Jwjy, \ L. C. R., p. 46. 7. When an objection has been taken at enquete and main- tained, and the oj)posing attorney has proceeded with the examination of the witnesses, and the deposition has been closed without any reserve, the Court will not afterwards entertain a motion to revise the ruling of the .ludiic at enquete. Wrigley vs. Tucker, !S. C, 3 L. C. II., p 89. Also Benjamin vs. Gore, L. il., p. 31. Rut in the case of Fahey et cil.y and Jiwkson et al., Q. 15., 7 L. C. R., p. 27, the Court revised the ruling of the Judge at enquite, although it had not been objected to in the !S. C. 8. It was held at enqu te that a party who had given notice of appeal from an interlocutory judgment, will not be forced to continue his cnqute. >cotl ^ id. vs. IScott i^ nl., S. C, 3 L. C. J., p 132. Rut motion having been made to revise this ruling it was reversed by the Court in term. S. C, 3 L. C. J., p. 134.. 9. A deposition closed ufler the rising of tlie Court, and in the al>sence of the plaintiff's utit.rney will be rejected as itregularly closed. McDougall vs. Mr.Dougtdl, 8. C, 6 L. C. R., p. i78. And there must be a Judge on the bench when a |Nirty is foreclosed. Vide Vbo. Foreclosure. • The weekly silting^, introiluccd l)y the Judicature Aul ol 186!1, are now aljolisliod. .M t 4 ll' 'i!fin!|! 112 E N Q to E V T ir::r Mi i 1 'f H i ■ i'l lij " ' ' li! J ; II 1 1 [ H 1 1 rifli ~ 1 ' ^ ^' i;!. i: 1 ■ i If I 1 y. Emquete : — 10. A foreclosed party is entitled to one juridical day's notice of the inscription at enquite, under the 12 Vic. c. 38, sect. 2.'), [Con. tSt. L. C, cap. h'i, sect. 13, s. s. 2.] Renaud and Gufny, Q. U., 8 L. C. 11., p. 24'6. 1 1. By the 4'3ril Rule of Practice the inscription for atquite is general, so when plaintilfhas finished taking his evidence, if defendant be not present the enqiiHe will he closed if piaintifl' requires it. Doivker vs. McCorkill and Clruluim, S. C, L. 11., p. 1 12. At cnquete sittings a Judge cannot set aside a foreclo- sure and inscription at emfuele in order to allow the dcleiidanl to plead. Mac'namura vs. Mvaghcr, H. C, 5 L. C. J., p. 48. Envoi en Possession : — Vide Curator. Erasuues : — Words struck out and marginal notes in a return or cer- lifi(!ate of seizure, not noticed therein, do not always make such return void, and the Court, according to circumstances, may maintain its validity. Demcrsand Parant & uL, Ij. B.. .') Ji. C. R., J). 3t). And marginal notes not cerlitied do not annul a de[iusiti()n. Lauzon vs. Stuarty iS. C, 4' L. C J., p. 126. Erreur ue droit : — 1. The crrenrde droif which entitles a ])aity to he relieved of his act is such an error as makes him do some- thing hecause he believes he is comjx'lled so to do, when in reality he is not. Boston is. Lcn^e, !S. C, L. R., p. 91. 2. Erreur dc droit may give rise to an action lor the re- covery back of money paid. 8o a party who has voluntarily paid a tax imposed by the by-law of a municipal corporation, which by-law is declared by the Court to be void, luis a right (o recover back what he h'ls so paid. Li'prohoii and The Mynr iff. of the City of Montreal, Q. B., 2 L. C. R., p. 180. Hut a traitsaction will not be set aside for erreur de droit. Tr/gge tf ctl. vs. Laval/ee, S. C, L. R., p. 87. 3, Errt-ur de droit must be pleaded by exception and not by defence en droit. S. C, 4 L. C. R., p. 4'04'. Error : — Amendment in the warrant of attachment not allowed, for an alleged error not apparent in the acts and proceedings in the suit. The Aid, p. 210, S. V. A. R. Evidence : — 1. By the old law of France evidence could not bo taken of any matter of a value greater than a hundred francs," without a commencement dc preuve 2^nr ecrit ; but by the Act 2.'> (.'eo. Ill, c. 2, sect. 10, C. ^^t. L. C, cap. 82, sect. 17, it is enacted, that in proof ol all facts concerning commercial matters, recourse should be had in the Civil Courts, to the ndes of evidence laid down by the laws of England. McKay vs. Rutherford, P. C, Moore's Rep., p. 414'. 2. The 17th section of the Statute of Frauds, (29, Car. 2, c. 3,) is in force in Canada in commercial cases, as being purl of the laws of England, to which in such cases recourse • Ry ttif 23 Vic c, 57, feet. 39, [C. St. L. C, «•. 82, se<'t. 21,] tliia isextenclod lo $2;'), limit ol jiin ' riion «l Comn(iiH«ioneM' Coiirta, 7 Vic. r. 19, sect. 3, and (or wliuli parol t'vj(len»-f foiiUI Of r»)i-eivLtl, .ftM. G. Tlie 23 Vir. c. 57, Im8 therefore olearwl away Itie niioiiialy of having (liflen^nl ainoiinis ahove whicti parol eviiliMicn coiikl not lie receiveil, defH-inlen' ■" the court in whi< li tlie aiiil wh.s liroiisrht. lltUrN $25 were chunked into ;£I0 n\g., aliiios t on >st all til,; VMMjii Hi miiif II iiic eiuii wn.-, iiliillKllI* II lllit* ap|iear. : 1 £ VI 113 KVIDENCE : — must be had, under the Ordinance 15 Geo. Ill, c. 2, sect. 10, [Con. !St. L. C, Clip. S2, sec. 17,] and therefore a sale of goods, for more thsin £\0 sterling, is not good, if no pjirt of the goods contracted (or has been delivered, no earnest given, nor any niemorandnm thereof in writing made. Hunt vs. Bruce tf u/., I'. R., p. 8. .3. An agremiout entered into by a contractor to share in the profits of the undertaking, although the contract was not capable of being completed witlnn a year, is not such an agreement, as by th- tSlatiit*' of Frauds, 29, (-'ar. II., c. 3, s. 4, is required to be in writiiiir, but may be proved by parol evidence. McKay vs. Ruthcrfunl, P. C, 6 Moore's Hep., p. 414. 4-. In the ca.se of *!\e pnrclnise of a cargo of salt on board a vessel lyingin th ' riVrr without a niemoranduni in writing, the resale t>f such i;. C, 12 L. C. K.. p. lOS. f>. The transactions of tradesmen and citizens in the way of their trade, are to Ix- considered as commercial matters ; and in all actions brought u|u>n such transactions, recourse mu.st be had to the i nglisli rules of evidence under the Ordinance 2.*) (ieo. III., c. 2, sec. 10, [('. St. L. ^., cap. 82, sect. 17 ] and geiieiaily in all cases which, by the law of France, were cognizable by the consular juriNdiction. Pozer vs. Mciktfjdm, S. K., p. 122, and P. H., p. 11. 6. The I'.n^lish rules of evidence are applicable in a con- tract entered into by persons in r"ana(la with the govern- ment, to sup|)ly stone for making a canal. McKay and Rulherfmd, W C, « M«iore's Kep.,p, 414. 7. And the lOnglish rules of evidence are applicable in an action on a contract for building a house and lurnishing iiiaterials. Mc' Irath vs L/oyd, S. (.'., I L. C. .1., p. 17. And the sale of a waggon aud a harness by a hotel-keeper (plaintiff's c«/««/) to the delendanl, described as cutliiatrur and commer^ant , is a cuuimerciiil fact, and may be proved by parol evidence. Vandil vs. Grnver, S. C, ti L. C. R., p. 47.'). 8. And in a commercial case verbal testimony may be adduced in explanation eal, 1st March, IH.'iS. And in a case oi Fahey et al.^ and Jackson et id., Q. R., 7 L. C. 11., p. 27, iakey and another, bricklayers and masons, having undertaken to make certain masonry, under a written agreement, for Jackson & Co., on the Quebec and Richmond Railroad ; and having, during the progress of the work been employed with their men at some extra work, by the day, they brought an action against Jackson ic Co., and produced their brother as a wit- ness to prove .such extra work. His evidence was held to be inadmissible by the Judge at enquite. The ruling wac not submitted for revision to the Sup. rmr Court ; but other parol evidence was adnii'ted by the Judge at enquite de fene esse. The action was dismis.sed in the ^ulterior Court, 8 ■h 1 i u WW 114 EVI Hi: I'^il iii' li Ii ii III i Evidence : — und on appeal to Ihe Q. B. it was held, that the case was a commercial one, and that the evidence was to be governed hy thf English rnles o( evidence., and the ruling of the Judge at enguite, althought it had not been objected to in tlic Superior Court, was revised. But in the case of Cardcn et al., IS. Finley et al., 8. C, M L. C. J., p. 232, it was held that the payment of a promissory note payable to order, us between parties not traders, cannot be proved by witncNses. P. The proof of a contract made in a foreign country, ought to be made before our Courts, according to the law of the country where the contract was made. Wihon vs. retry and Perry, T. S., S. C, 4 L. C. J., p. 17. 10. Although a diflerent rule obtained furmcrly, {Rnuthicr vs Rofntaille, S. R., p. 44-0,) it is now well eslabii.shed, that a notary, or the notaries, who have received, or the tenwins instrumentnircs, who have witnessed the execution of a will or other authentic instrument, are competent wit- nesses upon an itiscriptinn dc fniz, impugning the validity of such will or other authentic instrument. Weilin'i vs. Parant, S. C, 4 L. C. R., p. 228. And so also in Tuil/rfrr et id., vs. Tadlefcr et nl., S. C, L. R., p. 32. And Lara/ire et al., vs. Deniontigny, S. C, 4 L. C. .T., p. 47. Antns necess'ires and admissible to prove seduction in an action tn declaration de patemite, Stewart rs. McEdward, S. ( !., 4 ]j. C. R., p. 422. But the cousin gernian may b»' examined to prove acte'i dVieritier. Fillion et al., rs. Binette, S. C, 4 L. C. .T., p. 36. 13. In an action of revendication of moveables, the s<»n of the plaintifT is not a competent witness for the father. Hearle and Date, Q. B., II L. C. R., p. 290. 1+ In a non-commercial case, the father of a party's d;( light er-in-law is a competent witness. Macpherson is. The Bank of British North America^ y. C, 1 L. (;. R., p. 306. Ii). A party has the right to re open his enquite m order to examine his relations as witnesses, the advt-rse party ♦ The 'in y relations or ronnei-tions of pnriies who cannot now give evidence atv the liuoband and wile lor onu another. C. 8(. L. C, tap . 83, sec, 14. i- ♦ Sii E VI 115 Ividence arv I lie KVIDENCE : — haviii);; liiul that utl vantage under the Act '23 Vic. c. f)?, s. 51, winch hud become l;iw during the enqu^te. Vanier vs. Falkncr, .S. C, 6 L. C. .1., p. 251. 16. A simihirity of interest only ullcet.s 'he credibility of a witness, not his competency. !So members of a corporation of !i parish, oti\ fahrique, [C. St. L. C, f-ap 82, sec. 1+, ss. 2,J are competent witnesses in suits in wliich the fiijynqup. is a jtiirfy or is intt;rested. The Quebec Fire Insurance Co., rs. MdonetiiL, .S. C, 1 L. C. R., p. 2;iG. Also tlie cas Ins principal, the delendant, after the loss had uccru<'d, cannot be used in evidence against the company. But the eonteuiporaneoiis representations made by the insured to other inanrers of the same subject, may ])e legjilly proved by the defendants. Grant is. The JlUna Insurance Co., 11 Ij. C. H., p. 128. Def ndant may be a witness lor his co-defendaiits, if lie be not interested, or if his interest be renutved by his discharge. The Bank of British North America rs. Cunllier et al., S. C, 2 L. C. J., \i. IH. but in the case of Ouimct et al. vs. SetieccU et al., S. C, 3 L. C. J., p. 179, it was held, that a party to the record cannot be a witness, although >iot interested in the issue sought to be proved. IJut in the same case, (ib. p. 182,) the contrary was held.* And in the case of Brown vs. Mailloux et al., i<. C, 9 L. C. II., p. 252, it was held, in the Superi* r (-onrt, on an action on a promissory note, that the evidence of one of the several defendants, although insolvent, is inadmissible to prove tliat he subsequently gave the plaintiff a note in jiayment of the one sued upon, on the ground that he is a party to the issue, lint in the case of Woodbury and (ia/fh, decided in the Q. B,, 9 L. C. U., p. 438, the signer of a promissory note sued with the endorser, may be a witness in favor ol the endorser. And in an action on a promissory nolo, wluire defendant pleads usury, u |»arty also liable to piaintilf on the same note, is a competent witness to prove such usury. Malo vs. Nye, S. C, 1 L. C. J., p. II. lint a person who receives money from tlie maker of a note be lore its niatiirity, and undertakes to pay it, is not a compi tent Witness for the defendant in an action against the maker, to prove that he did so ; for in the event of a judgment for the plaintiff, he would be liable over to the defendant for the costs «)f such action, as damages for the non-fulfilment ol his undertaking. Fraser vs. Bnulford, S. C, 2 L. C. J., p. 1 lO. 18. A defendant may now be a witness lor his co-dt'.'en- dant, 23 Vie. cap. 57, sect. f>l, [Con. Sts. L. C, cap. 82, sict. 14, s. s. 2.] ♦ Sm< e ihe passing of the 23 Vic. c 67, this owe suOera no diOtcult/. ,;'^.» 116 E VI • u n u U-l ■A If ■ i ■' P i 1 i !'i'|^ ■i ;■ ,1 V 1 ' liiMi Evidence : — 19. The oxistence of a co partnership cannot l»e proved by the admission on faits et artirles of one of the nlle^ed partners iis against I lie jither. Bfncker et ul. vs. Chandler, ^. C, L. R., p. 12. Also Chapman vs. Masstm, S. C, 2 L. C. J., p. 216 ; and 8 L. C. II , p. 22ft. Contirmed in Q. H., 9 L. C. R., p. 4.22. 20. A pih)t of a rufl may be a witness for his employer in an actiiin against the hitler for ilaniiiges to a Mh:irf liy the raft coming in coiitiict with it. Lmtrin vs. Pollmk ^- al., S. C, L. R., p. -tS. Rut persons who have the cuntrol and direction of vessels, or who are interested in clearing them- selves of fault, and throwing it iifKjn the otiier party, nre incompetent to give evidence. The Mary Campftrll, p. 222, 8. V. A. R. And so in an action against the master of a ship for damages done to a whiirf by collision of the vessel with the wharf, the branch pilot in charge is not a com- petent witness. The Harbour Commissioners of Montreal is. Grange, Q. B., 10 L. C. R., p. •J.i9. 21. As to the evidence of the master in snits with seamen. or in a case of jiilotiige. The S(/])hia, p. 9H, S. V. A. R. 22. In the Vice-Admiralty Court tlie testimony of the bail of the defendant will be rejected, he being an incom- petent witness. The Sophia, p. 219, IS. V. A. R. 23. An agreement varying the contract of wages in the ship's articles eaniiot he proved by pawd evidence. Thi Sophia, p. 219, S. V. A. R. 24-. In a suit for wages, service and good conduct are to be presumed till disproved The Agnes, p. ^3, S. V. A. R. 2.^. In a suit for personal damage brought by a pnssenger against the master of a vessel, the Court will look to the education and condition in life of the persons who give the evidence, not only as entitling them to full credit for veracity, but also to greater accuracy of ohservation, and a greater sense of the proprieties of life. The Toronto, p. 170, S. V. A. R. 26. In cases of collision it is necessary to prove fault on the part of the persons on board of the vessel charged as the wrong-doer, or fault of the persons on board of that vessel and of those on board of the injured vessel. The SaruJi ilnn.p. 294, S. V. A. R. 27. More credit is to be attached to the crew that arc on the alert than to the erew of the vessel that is placed a\ rest. The Dahlia, p. 24.2, S. V. A. R. 28. In an action by the endorser of a Bill of Exchange against the acceptors, the plaintiff cannot at the hearing on the merits move to reject the evidence of the drawer who proves the Bill to have been accepted for his own accommodation ; the interrogations proposed by the defend- ants, and annexed to a commission rogatoire for the examina- tion of Die drawer having been allowed by consent, and the witness swearing he has no interest in the event of the cause. Taylor vs Arthur et a^., S. C. , 4 L. C. R., p. 4> 1 5. But now mere interest is no longer a bar to the examniation of a witness. David vs. McDonald et al., S. C, 5 L, C. J., p. 164. Also 11 L. C. R.,p. 116. E VI 117 3 proved Vumdler, C, 2 L. in il B.. ploycr in •I" by the 'mk iV «/•• iitrol mid Il«r lIU'Ul- •nrtv, iiro //, i"). 2t:>2. ister ol" w he vessel ol i\ coni- oittreul IS. h seamen. \. 11. iiy ol' the LIU ineoni- ges in the nee. Till I net are to V. A. K. piisseugei jok to the give the red it for [on, and a Uo, p. 170, fault on red as the mt vessel pie Sarah liat are on Iplaced at ilxchange hearing drawer his own le defend- lexamina- ^, and J he (It of the kl5. But Illation oi .,p. 164. Evidence : — 29. A power of attorney executed, sous seinp prive, in Upper Canada and duly attested by a notary pulilie of Upper Canada under his seal of office, with a certifieate of the administriitor of the (iover luuMit of this Province annexed, does not |)rove itself. Nt/- is. McDonald, S. C, 2 L. C. J., p. 109. 30. The copy, certified by a Registrar, of an nuthentie deed, registered at length, is not evidence. Dessein vs. Ross, 2 Rev. de L6ir., p. r)H. Also Aye and Colvillc ct id, t^. B., 3 L. C. R., p. 97. 31. In an action brought by a curator to the vacant estate and succession of a party deceased, the iiling of an acte of curatorshif) will be sufficient evidence of the death of the piirty, more particularly if the defendant has not expressly iienied the rpiulity assumed by the plaintiff, or the fact of the ileath of the party deceased. PemJberton et al. vs. Detners, ti. C, I U C. R., p. 308. 32. And a partition among co-heirs, duly homologated, is evidence, as against third parties, of tite quality assumed by such heirs, a'nd it is not neces,sary that certificates of liaptism iind of marriage should be produced. Mai/ury and Hart, g. R., 2 L. C. R., p. 34.r>. 33. It is not iiece.ssary to prove, liy parol evidence, the identity oT real estate if such identity is established by the similarity of the descriptions in the deeds. Moreuu vs. Ruites, .S. C, I L. C. R., p. 1G<>. 34. A im>rlgagor who undertook to effect an insurance for a mortgagee, in order to secure the mortgage, is admissible as a witness, to prove that the insurance was effected when no (Kilicy had issued ; and evidence of the admission of the manager, about the time that an insurance had been effected :iiid of his promise to grant a policy, is admissible. The Montreal Assurance Company and McGillivray, Q. B., 2 L. C. .1., p. 221. 3f). The parol testimony of an agent of an insuru^ice com- {Kiiiy IS sufficient evidence tliat a misdescription in a {wlicy of insiirancf is Awe to his, the agent's, fiuilt. Snmers vs. The Athemeum Insurance Society, S. C, 3 L. C. J., p. 67. 36. The payment of money in a non-commercial case may be proved by witnesses who witnessed a receipt signed by the party receiving the money, with a cross, in thi-ir presence; and in the examination of such witnesses it is irregular to iM'jrin by asking whether the amount had not fieen paid. Neveu, pere et al. vs. DeBlcury, H. C, 3 L. C. .1., p 87. And ill the same case it was substupienlly held, that the payment of a sum of money may be prov«'d by the attesting witness to a receipt siirned with a mark, made l)y the parly receiving the money. (^ ft., 6 L. C. J., p. 151 ; also 12 L. C. R., p. 117. tSee Infra, No. ^1. 37. Parol testimony cannot be admitted to prove a verbal warranty, where there is a memorandum of sale which appears to set up the tiuusaclion ; as such evidence would tend to control the written contract. Fry and the Ric/ielieu Co. q. B., 9 L. C. R., p. +06. 1 ,M I' , I ^< ;':i I! 1 ! i 118 K VI f'l!' i!l !i^ ill i| riii ^ I.I i ■ II! ^ Evidence : — 38. Parol evidence is admissible to establish flint ni'. endorser agreed to waive protest. Johnston et ol, ts. Geoff'rion. S. C, 13 L. C. R., p. 161. 39. The books of a Riiiik are not evidence in its favor ti< prove payments made by such Bank. Brmke vs. The City /iunk,i>.C.,\ L. C. II., J). 112. But a written .slalcnient I'urnixhed by a bunk to a depositor will be taken as fvideiict- iifainst the bank, when" there is no evidence to show error Morris et al. rs. Ihiwin et itl., S. C, 4 L. C. K., p. '23.'». 'I'O. A clerk is incompetent to prove that a receipt piveu by him, for his employer, to a customer for a sum of money, was given by error, and that he did n(»t ncfiially reerive flu money acknowledged by the receipt. Whitney vs. Clarkr, S. C, 3 L. C..T., p. H9. Jhit this case was reversed in iippeal, Q. B.. 9 L C. R., p. 339; and 3 L. C. J., p. 3 IS, where it WHS held, that a clerk is competent to j»r<>\e that a receipt ^i\«'n by him, for his employer, to a customer (or a sum ol money, was given by error, and that he did not actniilly receive the money acknowledged by the receipt. •H. The return of tlie vouchers and evidence of del)t 1j) the creditor on signing a deed of aternunement ^ does not in-cessarily imply that he has made novation of (he oriiiinul debt, so as only to bt- able to recover on the composition in c;ise of the (h-btor failing to pay the instalments stipulated by I he com[)osilion. On an action for the whole original debt, tlie deed of com- position and the parol evidence of the debtor's bonk- kti'per, that the balance mentioned in the composition was reiilly that due, will be siifficiont to maintain the action. Brown ct al. rs. Uartifiau, tS. C, ft L. C. .T., p. +1. 4-'. The former depositit»n of a witness may be used or read to him upon a subserpient examination, though in a difl'rent proceeding, to refresh his memory. The City Bank vs. Coles, S. C , i> \i. C. U., p. 16. 43. A witness who has been examined orally, before a .Iiidge who took notes of the evidence, and it became neces- sary to proceed, de novo, with the evidence, the witnes.<* having died in the mean time, it was held to be C(»mp' tent to he party who had produced such witness to prove what he hud statfd under oath ujMjn the occasion of his examina- tion. And what si.ch witness stated can be proved by any p rson present uptm the occasion of his examination, and the .Iiiilge who had taken notes ought not to be called upon tu testify as to wiiat the deceased witness had declared. Sinurd vs. Vallee, S. C.,4 L. C. U., p. S.'i. And if a witn« ss be beyond the juri,sdicti(jii of the ('ourt, his depositii>n taken in a former suit l)etween the same parties, the mattt-rs in issue being the same, may be produced. Roe vs. .fanes, f^. C. 3 L. C. K.,p. 5S. +4'. in a petitory action, where the defendant pleads pos- session of 30y"ars by himself and h\fi auteurs -wvUimt t.tle, it 8 'uly ne(ressary for liini to produce parol evidence ti. coiiiii'ct the |)oss '.ssiiin of def-ndtint with the parties pre- viously in po.ssossion as his luteurs and predecessors. &lod- dart. vs. Lefihvre, 5>. C, 11 L. C. R., p. liJ86. E VI 119 EvinENCE : — 45. All documentnry evidence relative to the issues raised between two opjHJSunts must be filed by such op|H)sunts, and it is not sufficient that such evidence be already filed by other parties to the record. Kelly vs. Fruser, y. C, 2 L. C. R., p. 368. 46. A defendant cannot lie compelled to appear, before the return of a writ of summons to show cause why a certain witness, about to leave the province, should not be examined ; depositions taken under such circumstances are illegally taken, and the Inferior Court, before adjudicatiufj upon the merits of the nction, ought to have determined us to the validity of such evideiice, sous to afford the party an oppor- tunity of sul>stituting legal evidence in lieu thereof, undersuch circunistance« the party whose evidence has been rejected will be allowed to re-open his enquete. MaJnne and 7'ate, 8, it was held that a witnessabout to leave the province can, under the •J.'ith (»eo. Ill, c. 2, sec. 12, rCou. St. L. C, cap. 83, sect. 101, s.s. 2,] be examined before the ri'turn of the action. 47. If there are several issues, such as a jilea to the ac- tou, and a special answer to such plea, and a general in- scription for the adduction of evidence, altliought the proof of the special answer, alleging c7to.se juf^ee as to the matters contained in the plea to the action, if made out, would be a bar to any further proceedings n|)ou such plea, a Judge in Chambers lias no power to restrict and limit the proof, in the first iirstance, to the s]H'cial answer, and such liiiiitation can only be ordered ])y the Court, lirush tj'rt/.,r.s. Wilson Sfal., i^. C, 4 L. C. U., p. 4JS4. 4S. Defendants sued as co-piivtners, carrying on trade under the name of " The M«»ntrenl Railr 'ad Car Company," may prove, under the general issue, that the company was incorjiorated, and that the debt stied on was a debt of the corporation. Edtnonstone if id is. Childs ^* (U.^ S. C, 2 L. C. .)., p. 192. 49. When a gardien in answer to a rule for contrainte par corps, pleads that the prop«*rly is only w«»rth a particular amount, the onus prof) ndi falls on him. Leverson i^- cd. and Boston, (}. B., 2 L. C. J., p. 297. .'iO. In an action for slander where the plaintiff, in answer toa plea of prescription, pleads thiit the slundernus expres- sions did not come to her kuowledI. 'I'lie onus profundi of the d< ath of a legatee, previous to that of the tesliitor tails on the party alleging it. Uonacina rs. Bonacina and Mcintosh, S. C, 10 L. C R., p. 79. Con- firmed ill appeal, II L.C. R., p. 3*27. f>'2. The de.scription given by a person of his suffl^rings, while tailoring nndt-r disease and in pain, is n<»t deemed hear- say ev;dence, and may be admitted in a criminal case. The prisonuer Cesar6e Th6riault was nrreste«l by the constable C. and while in his custody and in his house, G., a magistrate^ •<-. .':' 1H)« I ii iliil ISO E VI EVIDBNCE : — came in, and said in her presence, " She hnd better turn Queen's evidence?" to which C. answered — '♦ There arc some preliminary proceedingN tu be adopted before/' It was held that confessimi.s made snIistMincntly, on the same day or the next, by the prisonner to C, to his wife and toanother constable, were nut admissible in evidence, as such, as the prisoner was in the custmly of these |>eople, wlien (J. s|>oke to him, and inasmuch as she might be under the inlluenceof the hope held out to her by (}.; but u confession made to the physician, who had no authority over her, and out of the presence of a peace officer, was admitted. 53. To render the proof of a declaration a. A child, whatever be his age, if he can distinguish between good and evil, may be examined as a witness. Regina vs. Birvbi if ux , Q. B., 3 L. C. R., p. 212. bb. On a plea of fraud, cceuerul evidence may outweigh the jMjsitive testimony of witnesses, where the evidence of these witnesses is not consistent, and wht-rc the presump- tions adduced are against its truth. Greniei Sf rir vs. The Moniirch Life Assurance Compnny, !S. C, 3 L. C. J., p. 100. 56. In an action for breach of promise of marriage a com- mencement de preuvepm the deuis due, and had coin|'elled him to pay the debts in full. EVI to EXE 121 Evidence: — The defundniit plenilod iNtyrnent, orid sot np a clnini on riut(!s tiled, tu the extent ur$l573 f).') and that ii »• ttlenient hud been niiide uud dednetion alluwed ut' the $.'{00 uu the hth Si'pteniber, 1856, he ul>o pleaded cunipensalion and the general issue. The pluintilf pruduced with hi.»» answrr K.'s receipt lor $H50 uf the 8th SeptemlH-r, 1856, in lull of all ubiigutiuns, jndf^ments, nutott, execiitiuns uud book aecounts, und alleged that this aniunnt was more than was dn<^ on the notes reierred to, und that the whole of the notes were paid in cash. And it was held that |iurol evidence was inadinissiblu to prove conversations between the plaintiH' and dr lendant as to the setthnunt and deduction ol the $300, or that N. Itud admitted such deduction und settU-uient at the dat«' oC the receipt. Rtncell md Nevftfrn, Q. H., 10 L. C. K , p. +.17. .59. Parol evidence is inadmissible to prove that un in- dorser of u promissory note, indorsed in blank, ngrefd to take such note solely on the credit oi' the maker, without recourse against the indorser. CImmberttn vs. Bull, t^. B.^ 5 L C. J., p. 88. 60 In un action orussuni|)sit, if it be proved that the plaintiff has a partner who was a |turty to the contract, and who in not joined in the suit, the action will be dismissed, although tlie defendant has not pleaded the Uicts specially. Pmer n. Chapham, S. K., p. VZ'l. : — Vide Appeal. Broker. Insurance. Master and Servant. Notary. Prescription. Promissory Notes. Protest. Slander. Transflr. Evocation : — An evocation will ?je allowed in a suit for a rente viaf;ire brought in the Circuit Court. Dalpe dit Parizeau IS. Brotleur if ux., S. C, 9 L. C. II., p. .56. Exception a la forme:— T/rfe Pleading and Practice. Exception dCclinatoire : — Vide 1'leading and Practice. Exception dilatoire : — Vide Pleading and Practice. Exchange : — Vide Lous et Vente. Execution —1. dmler the 40th section C. S. L. C, c. 8.3 u defend- ant, op|)osant, is bound to alleire und prove that lie has property in the district where the judgment was rendered, in order to suspend the execution of the writ in another district. Rose vs. Couilee, S. C , 12 L. C. II., p. 4-03. Massue vs. (yebiiss and Cre' uss(i, S. C, 7 L. C. J., p. 'i'lb. •1. It is not cimipetent for the sheritt", in case o( saisie-arret en main fierce, to seize eor|>oreally as the properly of the di'tendant, cHcets in the hands of u third i arty, und a seizure so made is null and void, und will be (juashed and set aside, on motion made to that end by any jtarty legally interested. Fleck t'.s. iS7 -/«« tt a/., and St. Cyr and B'ownt S. C.,7 Ii. C.J., p. 256. « ■f , ,'( t ati> tli(! place ol sale, and ifllu' [Kirchascr was tlu^ apjcni ol'tlic party sci/od npon. uiul us such siil»)cct to till' itnpiitatioii olTraod. l^mfftnnir and Ritss tt (d., t^. IJ., I \t, C. U.. p. 71. A.nd wlu'H by a .v isir nvtfii/inc tli>' buillitr, by liis jm)c^a-irrli(d declares that he < lects bis doinicde in a particidur parish, without Npeeifyin^ in wliat part of it, the snisie will be declared mill, and a notice of sale, lit the foot t»f the />/"0tVa-tr/'i6. C. 7 L. C. .1., p. 225. 2. On a triidilimn r.rjHOias ayainst nioveabU'S, it is not nec<»ssiiry tt) have a proems lerhat de reroflemrnt. Lrspenmce vs. iMH^din and Lattgevm, S. C, 1 Ti. C. K., p. 27}». ."i. I he seizure of moveables under a writ ui' Ji>ri facias ill the hands of the plaiiitills, is bad,— the manner ol pro- eeedmjj is by saisir-arrH. Mortis rl, a/., vs. Anlidms and Atitralms. IS. C, 1 L. C. K., p. 1 1+, \: Books of account, litres de crmmr. and papers I)elon<;ing to defiMidant, and in his possession, are inaisissidi/es. Fraser vs. L()isr/lc, S. C, f> L, C. 11., p. 29f). And the sword of a military man is exempt from sei/.iire.as beiii^ part of his necessary military enke, S. C, 1 L. C. U , p. 91. (>. Ill order to render the seizure and sale of a registered vessel valid, tlie binnalities pointed out by the Act 8 Vic. c, f), sect. I(), [C. Sis. C, c. 'H, sect. !(),] iiiiifet be ctniiplicd with. Citsack tj- id. rs. Pafon, S. C, 3 h. C. K., p. +71. 7. A ves.sel which hai been fraudulently sold by »n insolvent d«;btor, subsequently to the instiliitioii of an action ajfaiiist him, could not nevertheless b(^ seized de piano, inas- miicb as the vessel had passed into (he hiidsof the pur- chaser, and that it was in the first place necessary that the contract should be annulled, as fraiubileiit by means of a revocatory action. Ctint/le and BruneUe, <.i. li., t> L. C. li., E X K 123 Kxkcition: — iMMovRAni.rfi — 1. Movctibl«'« nn«l inmiov<'iiM«'s niny )><• si'i/fil isiiiiiiltiiiii'iiiisly iiiitlrr one m d l|i«> sn\ui- writ ul' cXtriit mil. KirrzkitV'sl;!. rx, Lrnfii'ttuii r ' ml [.rspnuHC*, ».|.|M.siiiit, I L. f. .1.. p. liKJ.iiiul 7 I.. C. 11. p. M'.M. 'J. And ilic imiiinvcitl)l«' |>r(i|M'r*y o| ;i ili'lciidunt niiiy Im* NCi/r(i lit. the siiliif liiii)' IIS Ins ninvnililcs ; Iml IiIh iiiovi'iililt's iiiiist ))(' lirst sold. And \\ Ikii titr return ol'tlie liililliir sftsdifth tllsit hi- liiis no lll«ivi';il»lcs, |irctcfcdi!iirs to set i'sidf this n-lnrn intist lie tiikcn hrllir'' iin i>|>pi>sitiiiii can he filtil t«» «i't iiaidc the std/iirc, on the iiroimd \\v,\\ the iiiuvo- / iihU's should he first sei/.etl iiiid sold, Voi'^r nv. Sniaril, ^». ^ C, II L. C. K.. p. 3. 3. I'pon the seizure of reiil oslule, lh<' iihseiicc of a wit- ness (/•«/>/•) to the sei/iire, the want ol iiii election o/ (joinicile hy the p;irty si-i/mv' mid hy thi- liMilili'. tie' 'iiiissioii to state whetlier the sei/iire was etii ilrd lulore or al'ier tweivi' o'chick, tind that a deiniind of ().iyMiciit was made, when such execniion is directed ii;raiii^l flu- imtvcaiilcs only, lire not sufficient t^ronnds to inipiiun ilir \alidiiy of such sei/nre. The return of the sheritf thai lln- advcrlise- ineiits and pnh iciitions of tht* sal(> have liecii made is coii- clnsiv<' until such retur is e..| Lispiriim:e and A/liird ct aL,^. M., I fi. C U., p. IM it w s held — that till opposition to annul the sei/nre ol real isinie cannot he receivi'tl within the (illcen days precediiiu the day lixeil fiir the sale, even with (he ordjT of a .liid^e. +. If ii pliiintifl have, hy his own fault and nejjlcct.canseil nil inim«)veul)le property to h(> sei/ed iimlcr an inacciirato d(>s(M-iption, the party sei/ed, haviiiir nil interest that such description he correct may demand the nullity td siicli .sei/nri', with costs afrainst such plaint. If. Dujuos vs. Hour- ddfrcs, S. (.'., I. L. C. II., p. 2-J7. .''). In the ca.se of the sci/nre of real estate jt ;s not iiec« .s- sary to mention in \hi pr'ic(^s-r('rhnhi\u\ notices, tli.- contents (d" the property sei/ed ; and the res|)ondeiit haviiiu" sold the real estate in (piestion without inentioiim. <'.,M I,. C. II., p. ♦»9; also, iii another case ol Palmer vs. Lupensee. lb. \ i 124 EXE ill Execution : — Immoveables :— 7. A writ de terris issyied generally in snfisfiiction of an hy|)uthecury ji)ilU> amount of the judgment is ilh'gal. and the (h'iendant has a right to liuve the writ btayed till the cxaet iimount due on the ju«lgment be (U>ter- mined. Dtinque du P«'Hj>/e vs. thmef^ani, S. C, 3 L. C. II., p. 4'7S. And soal.su in Fournier ami Rus.sc//,, Q. li., 7 L. C. ^ il., p. 130. And likewise tin opposition msiy be tih'd to a vendifioni erjxmas, ii credit he not given on the tiiee of the writ tiir sums paid since the pidgmeiit. Efti/ vs. Jiuld et. cU., and Judd et a/., .S T., 3 L. C. .1., p. 73. And a cretUtor suing out execution inu.st give credit upon the writ Ibr any amount he may have received, and an op|M».sitioii ol" the di'Teiidant founded U|Mjn this tun s>ion must be miiintained with costs. Fournier an't liussel, 'l. IJ. 10 L. p. 11., p. 367. 9. An execution i.ssiied on a judgment against .several dcfeiidaiits jointly, directed sigainst one ol° them for the whole d(>bt, is illegal, and will Ix; set aside on «)ppositiou, without even a ti-nderof the amount really piiyable by such defend int. AlrJifuH is. Ihliarlzvh and Deliartzch et "/., mis en cause, and I runmwnd, opp«i>ant, ^S. (\, 3 I j. C. J ., p. 1 18. 10. The signiHcalion ol n saisi' -nrrit by a creditor of the plaiiitiff, to a defendant, against whom execution has issued, lias not the effect of stopping proc«-edings under the execu- tion, and to produce that effect, the deleinlaiit must deposit the amount of the judgment obtained against him, in prin- cipal inten'st and costs. Duifrnay is. Dcssau//es, fi. C, ^ L C. li., p. 14.2. 11. \ii opposition cannot lu^ maintained on the groimd that the bailiff inakimr the sei/iir*^ was not a slu-riff's bailiff, the writ of execution having been delivered to him by the sh.-rifi: F/r/i^h rs. Seynuutr, S. C. 8 I.. C. II., p. '2f>(i. V2. Execution of 11 jiidginent en sr/mra/ion de /dens, is BUttieiently afli'Cted, by the reiiiinciiition • f the wife to the community, duly insinuated. Seneca/ and LdtrUe, S. C, 1 Ii. C. .1.. p. '273. 13. KxetMition cannot be issued against any of several defendants, if one ol them have appealed, and if such appeal be still pending. Urush et. al.^ vs. Wilson et al., i<. C, (i L. C. II., p. 3!). !+. Whi're two executions issue at the suit of different parti(>s against t!ie sanu' defendant, the sheriff cannot unite both seizures in one p/yti;t>s-ier/Hi/. Sundrrson vs. Hoy dit ]j pensee. and lioi/ dit Lupensee upposun', S. {].. 3 L. ('. .!., p. I IM. And also m a ease of Paliser and Jioy dit Lapen ee, « Q. IJ., 9 L. C. II., p. ^.'^ti, and + L. C .1., p 20M. If). A satsie which is in»t acted on for two months ceases to esisl. Scho/r/ie/d et aJ. vs. Roddrn et al ,S.('.,f> L. C. .1., p. 332. : — Vide AssKJNMK.NT. : — " Gardirn : — Vulc McFarlune vs. Draper, I L. C. R., p. 94'. EXE to EXP 125 i*' posit priii- C.,4 JC, 1 'voral P|M'a] 6 L. •rent iiiiiU' V (lit ['. J., ). 9+. ExECi'TOR : — 1. An action may I«» rit?hlly broiipflit by ii party ns ox(v cntrix of a will iniide m irclanct, without alU'uiiip: in tlie (l«-(*lar;itioii tliiit by tlu> law of Irphuid an iirtioii lu'criird In hiT ns snch cxt'cnlnx. Urninprr ft ul. and Parke, (}. H., 10 L. C. K., p. HftO. 'i. An action lies by titc makers of a promissory note n^iiinst the executors of the payee, to j^et |H)sst'ssioii of the note piiid by one o|' them m part to the payee thereof, and in purt tt» the execiiturs. And in sneh an action ihe evidence is to bi- rc^idnted by the law of l'in<;land. Corrlf/i et (tl. utitf Fitt/nj rl a/., Q. W.', 10 Ii. C. U., p. t! ;'):>. '• : — Vif/r 1 1 V I'oTii t:ui' k. ' :— " Will. I-]xiiiuit: — I. 'the insnfticiency of an exliibil is not a leiriil frnnind Ibr its n'jection (rom the record. S/iaf/ifr rs. Ttirnniir. S. ('., 1 Ii. C. .1., |.. M.S. '.'. An exhdtit filed by a piirly in n Ciinse becomes common tti all the parties. Lm Jiti/it/ur ifn I'lit/j/fnud (tNL'i/, i^. H., 9 [i. C. II., p. 48+. 3. The 7t)th section ol'ihe .Fndicjilnre Act of IS')7, *20 Vic. c. +!• [Con. Slut. Ii. (\, cup. H.3. sec. HS], hits virtiiiilly repcjilcd the '21th rnie of practice of the Snpenor ('oiirl ri'(|iiiriii0; and II L. C. II., p. IH2. 4-. A person who has acted as an expert in n canso, in whieh the rj:/;p/^/.sr was s(!t aside and a new oni- ordered, niav l)e rc'-iised as exjiett at the secontl expertise. AncUiire vs. Di '.. S C, f) L. C. .1., i>. il'i.S. f>. A re|)orl of experts will ho set aside it appearin;; Ihat one ol' till" parties, th(! deCentlant, was not iioiilied of llie d;iy (iNi d (lir tln^ e.rjt' r/i.'se, uud th;it the experts heard Iho pl.iiiilifl 's witnesses and proceeded ex parte n's,\\\\s\ th<^ de- lindaiil. Wat.er.'i rs. Vernnneau, S. ('.,() L. (' K.. p. 4S"2, Also ill the ease td" L marche vs. Johnston atid J(ihnstt)n, ^. C, f) I.. C. .1.. p. 3>{6. (i. 'I'he rtference to an aceonntanl is not sanctioned under t!u' .Iiidicatnre Act ol" iS.')7, '20 Vic. e. 44., see i^J. [< 'mi. >t. Jj. ('.(Clip. HH. sec. SO.] in a case not involvinjr ilic setlie- iiieiit ol'ai-coiiiits, and under this section reports of accoiint- atils must he acted upon and hoinolojjated in the s;iiiie ^yay as reports of e.rperts, Elliott and llowrd, (.\. H., 10 F^. C, 11., p. ;n7. 7 In the cnso of Huiehit wn and (hl/espie iV «/•. decided in 1S.3«, the I'nvy (.'oniicil, j'.irsnant to the powers coiiiained ill the i{ tV 4- W'ni. l\',c. 4.1 s. 17, and notwithstinidiiii:,- the disseiil ol the res[H)ndent's counsel, onh red a reli reiice t(» t;ike accounts, iVc. 2 Moore's Uejt., p. 243. Also ,'} Kev de J.e^r. p. .]-:7. 8. ilxpcrts have no ri. ('., L. l;. p 4(i. Extradition : — Vide Fugitives, . \ •u/. FAB to F A I 127 Fabriqlk: — 1. At mec\'\ns!fi of the f(ihrt(/ue,\h(} Cure hns iu> riplil to jircsicle, tlu' nun giiillier en charge being the proper ofliecr so to do ; !Ui(l iiny Mich met tings presided over l)y Ihi' Cure are null. And when \\w mnrgnUlicr en charge vinnuA tKwdi nur write, a minute of (lie deliheratiuns of the inteting uujjht to he drawn up hy a Notary. JJanwur eta/., is. (liiin- gue, !S. C. 1 Ij. ('. .1., p. 94<. Jiut in the case ui'Stufad and Beauregard, t^ J}., 4- J-.. (;. .!., j>. '213, it was iieUI that the Cure has the riiiht fo preside at meetings of the fciliri(iue, [Vide C. St. L. C, eap. 18, sec. 4.;"!.] *2. A workman who lias contracted with the p;irish as corps el coninnininili' d'h his action against the Fal>rifjt4c. Ctnnlc is. Le Cure il Margudlius dc lit paroisse de Si. Edouard. 2 llev. de Lejr. p. 127. A falirapte has a ci>llective or corporate name in wlucii it shonlil sue and he sued. JOxp. Leiort, Ibr Ccrlioici i, S. C, I) L. C.J., p. i>0(). : — Vide Insuiiance;. :— " Mandamis. : — " iMai{<;i u.i.iER. Factum : — An appeal will not J)e dismissed for want of a factiiin, if the ractiim he prodiieetl at the Ume the motion to dismiss is made. Dawson and Ihdic, (}. B., 3 L.C. .J., p. '2r)6. Faits KT Artici.i;s : — 1. 'I'lu' ansui-rs of a party to intcrroiratiries sur f its it arf/r/fs can only make proof ajraiiist liiiuseH. <•' regit y r,v. Uendiaw and Fmvke rt al., 3 llev. de lA'g.,p. 98. Ijiii tiie admissinii tif one of several CO partui'i's on fail.y. ct artides binds 'In- linn. Maguire and S off, (^ 1}., 7 L. C. 11., p. 4r>1. And lliis«'ven after the ilissolntiun of the partner- ship, lint the existence of a partnership cannot be luoved ]»v the admission of oni- of the alleged parlin rs. , /.-i/nnafi vs. Masson, S. C, '2 f.. ' ". .1.. |). 211), and S f,. (". W., p. 225. And also Uoicker vs. Chandler, L. K., p. 12. 2. In the case ol Oiddiy is. Morrogk ct al., P. 11., p. 19, it seems to Juive hei n held, that, inacomm rcial matter, a parly may t xaiiiine his adversary on faifs ct orlir/cs. Ami III an actnai in liie nature of ijao n' ininfo.w p;,rty is obliueil to answer interrogntones «iii faifs et aifich's. l.tinc)i vs Piipin. S. ('., L U.. p.' 71. 3. .\ii(l a refusal to answer iiitcrrogatorii'S on Jai's ct articles, ur the aiisui rs th'-rilo, supply, ii commerciijl cases, the place o| the ne-nioni iidiim in writing rtijiiiri'd ! y the Statute of Frauds. Ijri y and Sponza.^) H.J) f^.C. .I.,p. 183. 4. A director of a i-tiinpaiiy is hiamd to answer intcrrojia- turtvs sur f'liifs rf nrfnles, which may be asked liim toiicliiiig the divrr transactions of the directors. Lncroi.c is. Prmiult de Liniihe, L. ('., 3 L. <". .1.. p. I3H. ;"). Interrogatories sar faifs ef articles and rue need not be served p.rsMiially in .i .lelinill ease, when the writ of suni- nu)ns and declaralitn h.ive been persoaally served. Tu' geon rs. Ilonae et a' , S. C . I I. <'. .1.. p. 270. Hut where plai'iitiir has gone (Mit of the limits of the juris lict'.on ot the Court, and IS domiciled on an island in Ij.iin' liuroii, the Court will • Thic cu«e wuj. only conliriiifd in Apjifiil— llie .lud^ei) lieMi^t tM|ii»i|y (iividvd. Iiiiif: 128 F AI m i I Faits et Articlks : — not iillow service of interropfntories , be nitide on him at Ihe Prothonutiiry's office. Dro vs. Bureau, >. C, 4 L. C. R., p. 140. And in the case of an absentee, the service of a rule for the examination of the absentee u|»on interros^tories.si/r/rt//.? et articles mmWixi the office of the I'rothonotary is insiiliicieiil, Fenn vs. Bntvker, .S. C, 7 L. C. .1., p. 297. 6. The service and the return of a ride for faits et artu:fes, iniiy be made before the inseri|)tion of tlie case on the rOh' (Vevqitite. Mnreau el al., vs. Lennard, S. C. 3 L. C. .f., p. KiS. 7. A party summoned to answer interropratories on faits et arti les has no right to demand to liave his expenses piiiil bclore he is sworn. Mireau vs. Ratelle et aL, S. C, 1 li. C i;.,p.277. And so also in the eiise of The Unity Insurance Fire Com- pany vs. Rickey et al., S. C, 7 L. C. .1., p. JO!). 8. Where a parly interrogiited on fait^ et articles answers evasively, to the ('Hi'et that he tlocs not rcmenilier. wlu-ii Ilie niiitters iiH[nired of must be presinnedly within his kiiow- le7. 9. A parly interrogated yi\K)i\ faits et articles, and reqnirrd to give in detail the consideration furnished to the defend- ants, by reason of which an obligatictn had been given by the hitter, and to pr«)diice a detailed account of the goods and merchandize, it snch was the consideration, is bound to do s(t, and UjKjn defiintt, the interrogatories will be taken pro confess! s. And snch party having refnsetl to answer, when culled upon to do so, cannot at the hearing upon the merits obtain permission so to ilo. Lantier and D''Aoust et al.,(i. li., 10 L. C. R., p.497. 10. A motimi for a rule .tur faits et articles to be served t n defendant's wife, is not a motion of course. The motion must assign sjiecial grounds. Jamieson et al. is. Boswell rt al.. S. C, 6 L. C. R., p. 430. 11. In a contract in writing tor the building of a hoi. e, and the stipulation that no charge lor extra work shall be made, unless the order for such extra work shall have been given expressly and in writing cannot exempt the proprietor from answering on faits et articles as to verba! orders given lor the said works. And such a contrnct being of a commercial nature, oral evidence will be admitted. Kennedy etfJ.,atid Smith, g. B., 6 L. C. R., p. 260. 12. The default to appear and answer interrogatories on faits et articles, on the part of the pluintifT, will be taken off and the rule and interrogatories set aside, where .such rule wais issued during the pendency of a former ride, in the same cause. Cumming '•«. Dickey ami the School Com- missioners of Durham and Winchester, S. C, 4- L. C. J., p. 13 1 FAI to FEE 129 Faits kt Articles: — 13. A cuse is not concluded on the default of tlin dcfen- diint to answer int('rn»i]!;atori(!S, stir faits ct arttr/es, if it is siiscei tildo of fiirtliur li'sfiniony. Guyon dit Livwine vs. Liotiis, S. (J., 7 L. C. J., p. 29i. Ami u party tu whom inti'rrof;;aturies,sw/- fails et articlcx, have been siil»iiiilted may answt'r tlu'in at any tinie l)i'liir«' llie cas»! is eonclndrd. lb. V,\\\ sei' I'iUlcs o( I'racticc (^C llli .laniiary, 18;vt. Ik An authentic copy of deKiulanrs answers on faits et art', conhrnied in C^. B. lo. fn an action en aepunUinn de hiens the avcii of the hnsh in d, .s«r /?*• vt artirlcs, is inadniissihlc. JMaloncy and quinn,ii. IJ., 10 I.. C. IL, p. \^^V. K). \\'liere a party iiiterrosjated ow faits et articles whether he has not receivi-d tlie originals of certain letters achlresscd 10 him hy the adverse party in the suit, it is irrejfiilar to pro- duce other letters not iinpiired of. Hemic and Dale, Q. B.. 11 L. C. 11., p. 290. 17. A parly called upon to answer faits ct articles, rird voce, under 20 \-|e. c. i+, s. SG [C. !er previously prepared. 19. A party who has been examined on fails rt articles nniy he afierw;irds examined as a witness. liailnj vs. Mc- Kenzic ct al., S. C, f) L. C. .)., p. 223. As to snlficicncy of answer,— t,). I',., 12 L. C. R., p. K)7. " :— Vide Lehlanc and Iklreohio, 12 L. C. R., p. 467. False iMraisoNMENT : — Vide Damages. False Pretences: — Two sharelioklers of a joint stock company paid a proit sted draft of the Company for j{>200, and ayreed to pretend to the st ckhulders that they had bei'U ohli;j!;ed to discount a i.v»te for $2.'i0 to pay it, by which they oblained }fi2r)0 from the Company. In ri'ality they had not iliscuunted any such note bnl had themselves turnished the money. It was held that these misstatements were not sntlicient to nniintaiu an indictment for obtaining money under false jiretences, and tliat persons conlil not commit a larceny of the tnoneys of the Company of which they were shareholders. The Queen vs. St. Louis et a/., Q. B., 10 L. C. R., p. 34. Faux :— Vide Inscription uk falx. Fees : — 1. No fee of office can be exacted by a puhlic officer unless established by legislative enactment, or by ancient usage which presupposes the sanction of the legislative authority. Price (S. Fc ccval, S. li., p. 189. * In this <;a»e il is dilTiLult, from the report, to say ilanyrlhing, and wbal, was decided Ili4ll|l'i!i I i I : li. M' ■I! lilMl 130 Fees : — FEE 2. All ft'OH of office, properly so onllcd, nro prrsiimoil to h:iv«' ii Icjjitinirttt! Ibiiiiilatioii in some net of ii iMnnprtcnt aiitliorily, «»rij?inully iissifriijufr a (i,ir (/unnfitm inrrinf (iir tlio partu'iiliir siTvicc. Thf John atid Mary, p. ()4-, .S V. A. II. \\ lurt' the lee is cslahlislu'tl hy or under llio autliorily of on Act of I'lirlianient, liie stutulo is conclnslvt! us to the qudtHum meruit, lb. Where settled by the iinlliorily of tlie Court, tlie subject is not eoiieliidcd thereliy, lint one iiiiiy try iht; re!is(>ii:il)li'ni'ss of the sum elninied as a iiiiniilinn mmiil helbre ii Court n| eoni- pctent )urisdi(!iion and olitain the verdict of a jury thereon, when, and w hen alone tlH>y heenine eslahlislied fees. M. ISinee the pas.siuf? of the Act ol llie Jnipcrial P;irli!inient, 1 Will. I', c. f)!, the estal)lishnient of le«'S in th<' \'ice- A(hniralty Court is exidusively in the Kinji; in Coinieil ; and tlie table of fees estahlislied luuler the statute haviufr been r(!V()ked without niakiuf; another, it is not coniju-tenl to the Court to award a r lenal be<.innin fi,rant fees as a tivdntuiii meruit, lb. 4-. The action fir money IukI and receivi-d will lie for cxcrbilani (e( s p.iid to custom houses oflieers, and the action may be brou;,dit in the nanu; of the owner, although the mou<'y may have been paid by the master, lb. ft. Tlu! Imperial Statuf'.», .^ (leo. IH., c. 4-5, enacts ; that when no Ii t 2!)lli Scptt'nibcr, 17()4, and it was helc[ that the Court will take notice ol the relative ^e|i|u)sition in the Slu'riff't* oHico governs the costs; ami when tlie filinjj was hefure' the c-miiiif; into li>ree of the new tarilf", thon<>;h tlie relnrn was jil"ierwar(ls, tlie eosts are taxahle tnicU'r the old tariff. Delery IS. Qu/1 and not siu-h an ahsuhne unillirinily to he main- tanied, that tin* sli;^ht«'st variance would produce a mdlily in till' whole. 'I'Ik! tariffs relatniff to tin- fees of tin; several officers (pfjnstjce may he prniiuiliiatcd in dilKrent documents, and tli*> Older oontamin<>; tin; tariffs of the IVothonularies ((diiiplrlc and (lislinct hy itsell), vjiiid or invalid, conid not all' cl the tarills of the sheriffs, liailills and other oflicers. ChtiiMd if at. IS. Seive't, S. C, I L. C. Jl., p. AMi. And this casr •!; im!,- to appeal, it was Inld in the t^'uicii's Mench, that n pracliMiiir attorney cannot recover hack Ironi a slnrilf a ft'c tif ollice r'dieiK-e to the lOOlh see'tioa ef the I .Mh Vic, e. [iH [Con. St. fi. ('., cap. SM, sec. lisj, and that the receipt of such feo in the present case was perleclly juslifiahle. (.1. li., I L.C R., p. 4()(i. H. I''(es of ollice and taxes pny.ihle to tlie (Merk of App(>als, Quee. 's IJench. helonj* lo and Hain part of tin; revenue of the Crown, and the action for the r ecovery thereof is \ ( ■sted in tht! Chrk d' Appeals, who is only the agent for their col- led ion. Jiryi„a vs. JlolL S,- a/., S. C'., 13 l^.C. R., p. .JOG. " : — Vide .TunoK. " : — " r»r.(iisrKRS. FtLoNy: — An aclinn nnder 10 iV 11 \'ic., c. li done f.rr;iiiiil(iiiNiy, if it. nlliinalely prcdiicr.s j^ain tv) tile person workin;; tli niiaiitlitin/.esiii. (!.. A L. C. .1.. p. 310 ; I'jvo [>, K., p. ,'M), Conlirnii \n-,i\, G'/t/in/is/,!/ i'^- na . J^ Liil,iii, (.i. I)., a L.C..I.,p. 14'. >. " :~ I'ttlc i'Aur.NKUsnii'. 9 iHijlf 132 FID to F O L ^ III « 4t « !>t FiDEJUSSRUR : — k fulojusseur has his action ngiiinst a co-fiiliyusseur for his proportiuii of the sum which he hiis piiiJ /ur ihiir cuuimon principal; hnt if there bo no cunvention to the contrary in the deed by which he liocanic security, his urtion is only for money paid, uri'l consequently he can have no niortgugo upon the property of his co-fidrjusseur until ho has obtamed a judgment, and then only Irom the dale of that judgment. Junes vs. Laifig, 8. R., p. 12.'). Fieri Facias : — Vide jSheriff. Figures : — Vide Assignment. nAiLirt'. Capias. Pleading Sc Practice — Declaration. Filing of Titles with Opposition: — Vide Opposition. Fire Debentures: — Vide IlYPOTHfcquE. Fire Insurance :— Vide Insurance. Fisc : — A claim of the Crown founded on a fiscal right is privileged over proceeds of sale of the moveables o( an insolvent debtor. Benjamin vs. Brcioster ami the Attorney Gefic/ai, pro Regind, S. C, 7 L. C. .1., p. 2S1. Floating Lights : — In n case of collision against a ship for running Ibul of a floating light vessel, the Court i)ronounced for damages. The Miramichi, p. 237, IS. V. A. R. Flogging : — Ry an Act of Congress, passed 28th September, 1850, (logging in the navy ot the Ihiited .'^tates of America and on board vessels of commerce was abolished from and after the passing of that act. p. 390, S. V. A. R. — (note.) Folle ENCiii:RE : — 1. Any op|X)sing creditor may move for folic en- chire against an adjudicataire who has neglected to pay his purchase money, (luenette rs. Blamhctie, S. C, 2 L. ('. R., p. G-t. But it was held in IJuebcc that an opposant should not be permitted to move for Vifolle enchere until the creditor has had time so to do. 2. The husband of a married woman sepurfc de biens adjudicataire, should have notice of motion lor folle enchire against his wife. Clouthicr rs. C/oufhier, !S. C, 10 L. (J. R., p. 4'.')7. And so also in Queen's Bench, m the case of Jordan and Ladri^re, 12 L. C. R., p. 33. And where the rule has been served on the wife alone the judgment declaring it absolute will be set aside. Jarnj ^ vir. and The Trvst and hoan Company of Upper Canada, Q. B., 12 L. C. R., p. 421. 3. And no n)oUon for an order to re-sell real estaie at the folle enchdre of the adjudicataire can be granted, unless notice thereof has been given to the adjudicataiie. Baker rs. Young ^- al., and divers oppo.sants, P. R., p. 22. And the notice of motion must be served personally on the adjudicataire. Jobin vs. Ilamel and Jlamel, SS. C, 12 L. C. R., p. 176. 4t. But a rule for a. folle enchire against an adjudicataire, described in Sheriff's return as residing in Upper Canada, may be declared absolute, on the single return of a bailiff, that the adjudicataire has no domicile in Lower Canada and that he cannot be found in the district of Mtaitreal. Guy vs. Cloikson and McLean, S. C, 1 L. C. J., p. 193. But a rule for folle enchire against atuined nd^inent. irivilt'ged insolvent ' Gc?ieral, r running LI need for ber, 1850, eu und on 1 ullcr the \ folle en- |Kiy Ills . (;. 11., nt should creditor de biens 'e ench^re C. 11., ){ Jordan rule hits iiring it \viit and p. 421. le at the unless Baker '.. And on the 12 L. C. [icataire, Canada, bailiff, tida and IGuy vs. U a rule face of la, but FOLLB E^CHtRE : — have |toid the capital of their purchase, founded on a claim ftir interest on such capital, and .served on •• the agent and attorney at law" of the adjudicataircs, will not be main- tained. Ilidt vs. Douglas and McDougall if id., S. C, 2 L. C. .1., p. 27«. 5. After the folle enchire has been ordered against a pur- chaser {ndjudicatairc) he may annul that proceeding by pay- ing his purchase money, and the costs incurred on the /o//« cnch^rt. Lanf^emn vs. (iaron, S. C, 2 L. C. R., p. 12.'). And a similar decision was given in the ease oi Nye vs. Potter and Brmvn, f) L. C. J., p. 23. (). The Court will not order the re-sale of an immoveable property at i\\c folle enchire of the adjuilicataire,Yvnding the proceedings on un intervention by a third ]mrty to have the adjiuliciition declared null and void ; nor will it allow a contrainle par lorps to issue against the adjndicataire for the non-payment of llie purchase money, pending such proceed- ings. Meath S)-al. vs. F.tzgerald, Monaghan and Charlton, S. C, 1 L. C. K., p. 24.1. 7. The adfudivataire is rice of his adjudication. Laioie vs. Plante,S. C, 12 L. C. {., p. 207. 1 1. A rule for folle enchire may be granted notwithstand- ing the death of the creditor suing out ihe decret. Russell vs. Fournier Sf id., and McBain, !S. C, 7 L. C. J., p. 299. " : — Vide Auctuin. Forcible Entry : — Vide Indictment. Foreclosube: — Vide PLEADtNG AND Practice. Foreign .Tudgment: — 1. A plea by which it is alleged that a suit has already been brought and decided in a coni[»etent foreign tribtmal, by the same plaintilT against the same defendant, for the same cause of action, is a good plea, more especially if it sets up payment of the judgment by defendant Vaughan vs. CaiiijMl, 8. C, b L. C. 11., p. 431. 2 Letters of administration from a Court of Probate in Mii'hisiun, as well fiuni the terms thereof, as from the prin- cipli! of international law, do not extend beyond the limits of the state wherein the administration was granted. C6ti if- al. and Morrison, Q. B., 9 L. C. R., p. 424. Foreign Law : — 1. The law of the country in which a contract is made and its usages govern in mercantile cases. Allen vs. Scaife Sf al., S. it., p. 105, i 1 I lit I r il /' 1 ' 134 FOR to FRA Foreign Law : — 2. If there be no cviilence of Foroipn Lnw, it will bo held to Iio tlio siiiie as ours. Parker rs. Cothranr, 8. C, L. II., p. ftS. And SI) also it \v»;; htdd in Ji/oUie jj- ux. vs. Cmvan, S. C, 7 L. C. J., p. 96. FoRiiGN Siiii's: — Ancient jurisdiction of the Admiruliy restored by 3 & 4 Vie. c. »>.'>, 3. 6, with resprct to elnini.s of njiilcriul men for necessnries furnished to foreign sliiiKS. The Mnnj Jant, p. 27I,S. V. A. R. FoRrEiTURi: : — Forfeiture for not entering or reporting goods, may be incurred, even without such goods having Ix'fn huided. Lcfiffcft, i\\\'\ turn. V. 4 gold watciies. ami Gnirrlt, 3 Uev. de Ltg., p '2^2. " : — fV(/tf Heuisteks. Forfeiture AM) Penalties:— .Turisdiction in the case of forfeiture! anil penalties incurred by a broach of any Act of the Impe- rial Parliament, relating to the trade and revenues of the IJritisli i)ossessions abroad. .lurisiiiction in the case of forfeitures and penalties incur- red by a breach of any Act of iho Provincial I'arliament, relating to the customs as to trade or navigation. Uniler the Act regulating the trade of tlic British posses- sions al)road, no suit for the recovery of any penalty or for- feiture to bo eommeneed, except in 'he U' me of some supe- rior Officer of the Customs or Navy, or by His Majesty's Advocate or Attorney (Jeneral for th ■ place where such suit shall be commenced. 'Hie Dumfriesshire, p. *i\b, S. W A. R. " : — r/. C, 4 L. C. .f., p. 3)0. 2. When the purchaser is in danger of being troubled, by reason of mortgages, in the po-s.session (d a property sold franc et quitte, he may retain tiie payment of the purchase money, until such mortgages are removed by the vendor or unlesr security be given by the latter, according to the pro- visions of Ch. 36, Con. Sts. Ij. C, sec. 31. And the vendor in such cases is conilemned in costs. Ih. And no execution shall issue until cither the mortgages are paid or until good security is given. Jh. Also Penas vs. Bcaudin, S. C, 6 L. C. J., p. 2il, and Druneau rs. li(jf>rrt, S. C, G L. C. J., p. 247, and JJernesse dit lilotidinrs. Madon, S. C, 7 L. C. J., p. 32. Fraud: — Where parties have entered into an agreement with a view to defr.in hcM ilial tlio noticff <<)r .1 rule fui conrraiiile jur eurj)s oil llie ^^llel'lll';/<«l causa must be 8ij,niilii'il lo iho Sheriir. HI IMAGE EVALUATION TEST TARGET (MT-3) ^ 1.0 I.I m |Z5 lit us 1^ L8. 1 — I'-'^ 1'-^ ^ 6" ► (tI^ ^ '/ '^' ^> Hiotograiiuc Sciences Corporation >:V' 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716)S72-4S03 ^ .€^ 1 ( I ii 136 GAR f ; Gardien : — moveables seized. Lererson et al., and Boston, Q. B., 2 L. C. .1., P-297. And also in a case oi Hitigins et al.,vs. Rof)i/lard, Q. B., 12 L. C. II., P- 3. Nevertheless the con- trary was held in the S. C, in Lordvs. Moirand Pritt,S. C, 7 L. C. J., p. 80, probably through inadvertunce. But the contrary jurisprudence is perfectly established. 2. The plaintiff cannot proceed by a direct action to compel the guardian to produce goods seized and confided to his charge. 'J'he proper course is by motion in the suit in which they were seized. Berry vs. Cowan, S. C , 11 L. C. R., p. 476. 3. A guardian of goods and chattels seized under a writ of Revendication, addressed to the Sheriff, has a right of action as well against the party at whose suit the writ issued, as against the Sheriff, for the recovery of the moneys expended by him as such guardian in and about the safe keeping and custody of such goods and chattels. Dinning and Jeffery, Q. B., 2 L. C. U., p. 360., thus reversing the judgment of the S. C, 2 L. C. R., p. 118. But the articles seized must have been de facto in the possession 'of the guardian, or he must prove thnt he expanded the sums claimed in keeping the article seized. Dinning vs. Jeffery S. C, fi L. C. R., p. 182. 4. A gardien has no droit de retention over a U^ing not actually under his charge, under process of revendication, subsequently dismissed, and the judgment notified to the gardien. Poutre vs. Laviolette, S. C, 9 L. C. R., p. 360. 5. A guardian of moveable property cannot, during the pendency of the seizure, compel the surrender to him of such moveable property by the defendant, in the absence of positive proof that the defendant is deteriorating it by improper use. Palsgrave vs. Senecal et al.^ and Prieur, gardien, S. C, 3 L. C. J., p. 116. 6. The gardien of goods under execution has no right to opj)Ose the sale of the goods under a subsequent seizure by another creditor during the contestation raised on the first seizure. Donally vs. Nagle and McDonald, S. C, 3 L. C. .T., p. 135. But in the case of! Smith et al., vs O'Far- rell and Coleman, 9 L. C. R., ]). 495, it was held that the guardian had a right to oppose such sale.* And so also it was held in Langlrris vs. Gauvreau et al., and Gauneau, S. C, 12 L. C. R.,p. 1.58. 7. But in Shellon vs. Ken/set al., and Holland, it was held that though the iiardien might oppose the second seizure he was not held liable for not doing so, 7 L. C. J., p. 139. And the right of a gardien to oppose a second seizure cannot bo tested on motion. Warren is. Douglas and Smtih, S. C, 7 L. C. J., p. 140. 8. A rule for contra itite par corps taken against a guardian to effects seized, fur their non production, will lie discharged on his shewing that they had been sold under other execu- tii)ns. Blackiston vs. Patlon tf- Patton, C. C, 5 L. C. J., p. 56. ♦ Mr. J. CliHbot ill pivinjir judgment expressed his (li«»ent from n previous judgment r«iHl«red in the S. C, ot Qurliec, uii the 20th May, 1&59, Daatoiuvs. Huiton No. 691. GAR to H A B 137 et ol., imrdian execu- . J., p. jii(]g;(nenl i>9l. Gabdien : — 9. A gardien is not contraianable par corps if he fails to produce efTects seized under an exeout ion wliich Iv.is been allowed to li^- dormant for mure than two months. Schofield et al., vs. Rodden <>« «/., S. C, 5 L. C. J., p. 832. 10. A gardien to a seizure is not hound to deliver up the efTects in his custody to any hut to the jierson hy whom he is so appointed. Frechette, pere, vs. St. Laurent, S. C, 13 L. C. R., p. 20. " : — Vide SHERtFF. Garnishee: — F/rfe Tiers-Saisi. Guarantee : — Vide Garantie. General Damages : — Vile Railway accident. General issue : — Virle Evidence. « : — " Pleading &; Practice. Government Officer : — An action does not lie upon an order, given on behalf of government by one officer to another, directing him to pay a balance due by government tothe person in whose favor it is given. McLean vs. Ross, 3 Rev. de L6g., p. iS*. Governor: — An action cannot be maintained against a governor while in the administration of the government. Harvey vs. Lord Aylmer, S. R., p. .o42. But the reverse was held in ///// atid Bigge et al., 1 Rev. de Ltreets of Montreal, such conduct being insubordinate, nnsoldierlike and to the prejudice of good order and military discipline ; and a writ of habeas corpus being moved to discharge him from the custody of the militnry authorities, it was held, that tlie written charge against the | etilioncr i volving one of felony, he must first be held to answer to the constituted trd)nnals of the colony, proceeding under the commcn law ofEijg'and, before a militury Court iihdi r the mutiny act, can legally take notice of the charge. Ex parte McCuHoch, 4 L. C. R., p. 467. : — Vide Returning Officer. : — " Member of the Legislature. il< (C « 138 HAL to HON ;!:? Half pay : — Half-pay is not assignable ; but alfhongh ibe nssignmenl is mill it may bu guaranteed. Dorwin vs. Waldorf, 3 Rev. do Leir o'> 248. ■ I t - Harbour Commissioners: — Vide Beaches. " " : — " Petitory Action. Harbour Master : — Tbe rules of the Trinity House of Quebec enipdwor the harbour-master to station ail ships or vessels which eoine to the harbour of Quebec, or haul iutoanyof the uhiirves within the limits of the same ; and to regulate the mooring and fastening, and shiHing and removal of such ship^ and vessels ; and to determine how fiir and in what instance it is the duty of masters and other persons having charge of such ships or vessels to accommodate each other in tlieir respective situations, and to determine all disputes which may arise concerning the premises. The New York Packet, p. 325, S. V. A. R. Owner of vessel contravening harbour-master's order, condemned in damages for a collision. 2b. Harbour of Quebec : — 1. Personal torts committed in the harbour tif ijiebec, are not within the jurisdiction of the Admiralty. Tfie Friends, p. 112, S. V. A. R. 2. Damages awarded in case of collision in the harbour of Qiu^bec. The Lord John Russell, p. 190, S. V. A. R. 3. A vessel which had moored alongside of another at a wharf in the harbour of Quebec, made responsible to the otht^r for injuries resulting from her proximity. The New York Packet, p. 325, S. V. A. R. 4. Declinatory exception over-ruled, in a suit for an injury dono by collision in the harbour of Quebec. The Camillus, p. 383, S. V. A. R. Heirs : — I. It is not a valid objection to an action against heirs that all of them were not originally parties to the suit, if by an interlocutory judgment, rendered during the progress of the suit, they have been made parties. Yiger vs. Pothier, S. R., p. 394.. 2. The eldest son, as heir to his father deceased intestate, is seized as projirietor of lands held in free and common soccage, by the right of primogeniture, as one of the inci- dents of that tenure. Stuart vs. Eaton, S. C, 8 L. C. R., p. H3. Vide AcTE d'h£ritier. " AiNESSE. " A MEN. Curator. Delivrance. Petitory Action. Renunciation. Will. Hire : — In a contract of hire, the words " your remuneration will be at the rate oi £'.iQlQ per annum^^ does not constitute a hiring for one year ; and such contract is determinable at the option of either party. Lennan vs. The St. Laiorence u7id Atlantic Mai/road Company, S. C, 4- L. C. R., p. 91. Honneurs dans L'licLisE: — The captain of militia has a right to the presentation of the pain heni immediately after the seignior j but he should occupy the pew set apart for his « « , s HON to HYP 139 HONNEURS DANS l'EgLISE : — office, if there Ije one, otherwise he will he offered the pain beni in his turn wiih ihe other j)arishioiicrs. Auge vs. Le Cure de la Pointe aux Trembles, 2 Rev. de L6g., p. 63. H6TELLIER : — 1. An innkeeper has no cUiim on tx piano Ijroiight into his hotel to be used at a concert there given, for the charge for the use of the room. Btown vs, llogan et aL, S. C, L. R., p. 83, and 4 L. C. R., p. 41-1'. And also in another case ol N&rdheimer ct aL, vs, Hogan ct al., S. C, 2 L. C. J., p. 281. 2. A hotel-keeper has no lien on the effects of a monthly boarder ; such privilej^e only exists over the effects ofa travel- ler. Bleau rs. Belieau, S. C, 4 L. C. J., p. 3r)6. And so also in Cooper vs. Dowries, S. C, 13 L. C. R., p. 3n8. Where it was held \\\\i\. pelerins. within the meaning of the 175 art. of the Custom, were only those who lived at hotels from day to day. And also in the case of Verbals vs. Saucier, S. C, 7 L. C. J., p. 126, where it was held that a party staying in a hotel for three weeks was not a pelcrin. and a revendication will lie at his suit to recover his clothes detained by the hOtellier. 3. An inn-keeper is responsible in damages occasfoned by the tail and mane of a horse having been shorn in his stables. In the absence of evidence to the contrary, it will be presumed that it was done by his servants or through their negligence. Durocher vs. Meunier, S. C, 9 L. C. R., p. 8. 4. A hotel-keeper has an action for drink sold to travellers who are residing in his hotel. Mercier vs. lirillon, S. C.» .5 L. C. J., p. 337. Husband and Wife. " :— Game Laws: — Vide Vlbathhg. Hypothecary Action: — 1. One and the same hypothecary action cannot be brought against three proprietors of a land hypo- thecated, unless they be proprietors par indivis. Panet et al.y vs. Lorin et al., 1 Rev. de L.eg., p. 232. 2. An hypothecary action joined to a personal one, is prescribed by the laj)se of 30 years. Delard vs. Pure et uz.f fcj. C, 1 L. C. J., p. 271. 3. In an hypothecary action it is the circuit within which the detenteur holds possession, not the circuit where the original contract stipulating the hypothtique is made, that is the place where cause of action arose. Morkill vs. Cavenagh, S. C, 4 L. C. J., p. 7. " : — Vide Declaration. " : " DoiAIRE. Hypothecary claims : — Vide Pleading and Practice. Hypothecary debts : — Vide Imputation. HypothI:que : — 1. An hypothec is indivisible in so fur as regards the immoveable properly hypothecated. McCarthy vs. Senecal^ S. C, 11 L. C. R., p. 41. 2. A notarial deed executed en brevet gives no hypotheque.. Belair vs. Gaudreau et ux-, P. R., ]>. 57. 3. A Jidfjusseur has no hypntheque upon the property of his cojidejiisseur for his share of the security which he may ^c 140 HYP HypoTiiliQUE : — have paid, until he gets judgment, and then only from the date of judgment. Jones vs. Laing, S. II., p. 12.'i. 4. A general hypothtque will not attach to lands held in free and common soccage. Puterson et al., vs. McCallum €t al., S. II., p. 429, and Boston is. Classotiy 2 L. C. li., p. 449. 5. General hypothecs created anterior to the passing of the registry ordinance, 4 Vic. c. 30, attach to property pur- chased subsequently to the passing of the said ordinance. Brown and Oukman et al., Q. B., 13 L. C. R., p. 342. 6. The claim of a legacy by privilege o^ hypothique by an ante-nujitial contract, against a fund in the hands of the sheriff, the produce of a sale under execution of real estate, belonging to the husband, who was the sole executor and residuary legsitee of his deceased wife, will be dismissed ; it not appearing that the fund was the property included in the marriage contract, or that the legatee had any right of priority to a judgment creditor. Smith and Brown, 1*. C, 2 Moore's Rep., p. 35. 7. An hypoth^que accorded during insolvency, confers no privilege as against contemporaneous chiro£;raphiiry cre- ditors. Duncan vs. Wilson, and Wil'^on and Wood, oppo- sants, S. C, 2 L. C. J., p. 253. And registration during a saisie reelle confers no right of hypothique to the prejudice of other creditors, who have not n-gistered their claims. Gale is. Griffin, and Gale and Sewdl, opposants, Q. B., 1 L. C. J., p. 266. 8. A servitude urbnne is not susceptible of hypothecation. Duchesnay et al., vs. Bedaid and Boisseau, S. C, 1 L. C. R., p. 43. 9. The hypothecation of a lot of land described by its metes and boundaries, is an hypothecation of a thing certain, although the contents be less than those contained in the said lot; and in this case the hypoth'que covers the entire lot. Lahadie and Truieau, Q. B., 3 L. C. R., p. 155. 10. The appellants acquired real property, on which was built the Baptist College at Montreal from one Gerard, by deed of sale, dated the iSth March, 1842 ; part of the price remained as a rente constitute on the property, and £2,500 also remained at interest for the lifetime of one Forsyth and M. C. Gerard, his wife, the principal to be payable after their death, to certain [lersons ap|>oiuted to receive the same. Afterwards, on the 25th July, 1845, the appellants, by deed not registered, reciting that they had purchased merely and solely in trust for the Canada Baptist Missionary S^ociety, until it should become incorporated, (as it was by the 8 Vic. c. 102,) assigned the property to the society, in consideration that they should be exonerated and discharged from all claims, troubles and demands whatsoever, by Gerard, under the said deed of sale, and further in considera- tion of lOs. ; but there was no special covenant of guarantee, nor any precise sums of money stated as remaining due to Gerard. The society afterwards specially hypothecated the property to Hoby, and Salter and to Forsyth, by deeds bear- ing date the 28ih October, 1845, and 18ih December, 1848, HYP 141 HvPOTHtQUE : — duly registered ; and the property bciiif:^ sold by decret by the sheri/r, Gerard forbore from muking any chiim upon the proceeds, under his deed of sale, and the respondent as assignee of lloby, Suiter and Forsyth, claimed to be collo- cated. The appellants resisted this cluini, unless security were given to refund, if the balance of the price wore herc- afler claimed from them. It was held, that the appellants were entitled to such security, notwithstanding the 10th and '28th sections of the Registry Ordinance, and notwith- standing that the deed of the 2.'>lli July, 1S4-5, cimtained no special hyjmfheque in their favor, ami was not rcgislered. Try et al., and the Corpor lion of the Roman C'tholic Bishop of Montreal, Q. 13,, 4 L. C. R., p. 276. 11. A special hypothique is no bar to the exce[)tion of c7i5cu,ss2o;2, and the tins detcntcur of land, who lists been sued by the original vendor, may validly plead that exception. The tiers detentcur has no right to hold the proptrty until his improvements have been paid. Price vs. A^chon, iS. C, 2. L. C. 11., p. 455. 12. The registration of an hypothdquc is not necessary as against chirogra|>hy claims. Duncan is. Wihon and Wilson and Wood, H. C., 2 L, C. J., p. 2.53. And between two hypothecary creditors, whose titles (neither of which were registered) were subsequent to the passing of the Registry Ordinance, the one ot earliest date will be preftrred. Methot et al., is. Sylvain and Gibb etal., 2 Llev. de L6g., p. 210. 13. The bailleur d'' fonds, who has neglected to register a deed of sale anti rior to the passina of the Registry Ordin- ance, 4 Vic. c. 30, on or before the 1st November, I84'4', the period limited for the registration of old df^eds (7 Vic. c. 22, s. 1-,) [Con. St. L. C. cap. 37, sec. 3,] cannot claim, to the preju lice of a subsequent hypothecary creditor, whose title has been dniy registered before his. Dionne is. Soucy, S. C, 1 L. C. R., p. 3 ; also Poliquin vs. Belleau and Fiseiie Sf al.^ S. C.,7 L. C. R., p. +6S ; also Vondcnrelden and Hart, Q. B., 2 L. C. R., p. 3r)3. And in rendering judgment in this case Sir James Stuart, C. J., intimated his opmiun that the bailleur defonds, either prior or antirior to the Ordinance of the 4 Vic. c. 30, is buund to enregister his title. Bnt this opinion was not then generally acquiesced in. Patton and Buchanati, 3 Rev. de Leg., p. 56. And it prevaili d in so far as regards the titles of bailleurs de fonds passed subse- quently to the Ordinance of the 4th Vic. Shuic vs. Lefurgy, y. C, 1 L. C R., p. 5 ; WUson and Atkinson, S. C, 2 L. C R., p. 5; Latham vs. Kerrigan and Homerick, S. C, 1 L. C. R., p. 4N9. Mor for deeds [)assed prior to the 7 Vic. c. 22, is it necessary to file a memorial for arrears of interest, lb. And also in the case Bouchard and Blais, (J. B., 4 L. C. R., p. 371, and in this case, in the Q. B., this was declared to have been the jurisprudence.* ^ . . — . . 1 — ■ ■ — — — ■ * But since the pa^singofthe 16 Vic. o. 206, [Con. St. L.C.cap. 37,8i ot.9,] ttieAaiWewr 4$ fonds, who does not enregiMer wiihin thirty days, will loee his pnviege \( any hypoihe- cary crvdityr re^iaiera belore hiin. ( I Hi ilKt isii.i &\ r:- |H B vf. : ' 1 1 i m ill H 1; f If ?| • r: 142 HYP HTPOTIliiQUE : — 14-. In the case of Broifin rs. Clirk and Montizamhcrt, S. C, 10 L. C. II., p. 379, it was held that prior to the 4- Vic. c. 30, the arrears ot interest upon the price ofiinniovcahle pro- perty sold, were only liable to a prescnjition of thirty years and not of five years. That in a distribution of moneys levied by the sale of real estate, the \'c\u\or, haillcur defonds, whose claim is founded on a deed passed before the coming into operation of the 4 Vie. c. 30, is entitled to rank fur all the arrears of interest duo with the principal, altlioniih no nioMiorial of such interest was ever registered. That the 7 Vic. c. 22, cannot be construed so as to have a retroactive eflc'ct, and that consequently, it does not apply to constituted rents, created before it came into force. l.*^. And a contract of marriage executed before the enact- ment of the 4 Vic. c. 30, must have been enrcgi&tered in the delay fixed by the Ordinance, to preserve the rank of the mt rtgage created by it. Garneau vs. Fortin, S. C, 2 L. C. R., p. 115. And also a marriage contract establishing IV life rent to a wife. Panel vs. Larue, !S. C, 2 L. C. li,, p. 83. And in the case of Forbes vs. Lcgault, S. C, 6 L. C. II., p. 100, it was held, that a purchase r in good fiiilh fur valuable consideration, under a deed of sale, prior to the registry ordinance, and registered previous to the 1st Novem- ber, iSiJ., is not liable hypothecarily for a douaire prefix, under a marriage contract passml before notaries in lHl7.and not registered till the 14th February, 1S53, notwithstanding that the death of the husband only tookjjlace in 18r)2. But it is not necessary that a marriage contract containing the stiinilation of a customary dower, should be registered to confer upon the person claiming such dower, a right of preference to posterior creditors who have registered their claims. Sims et ol., is. Eians and diiers, S. C, 10 L. C. R., p. 301, and 4 L. C. J., p. 31 1. And previous knowledge, in a sulisef|uent creditor, of the existence of u previous debt, not registered, due by his debtor is not sufficient to put him in b;id faith and to deprive him of the advantage by him acquired by registration of his claims, unless he be guilty of fraud or collusion. Ross rs. Daly, S. C, 3 L. C. R , p. 136. The words "subsequent honO. fide purchaser" employed in the 4lh section of the Registry Ordinance nfer to ihe words " from and after the lapse of the said period." Lauzon^-al., rs. Biianger, 1 Rev. de L6g., p. 146. But a married woman can claim the value of an imnn)veab1e property sold upon the representatives of her luisband, such jiroperty having been given to her during the community, jiotwithstanding the clause of ameublissement in the contract of marriage, jirovided there be a stipulation in the contract of marriage that the wife may renounce to the community, and take back whatever she brought to it, although the marriage executed previously to the 4th Vic. was ntver registered, — the wife's claim being rather in the nature of a right inimoveahle pro- fterty of n community in the estate of his niDlher, will lose lis twnVioi' liypothffiiie upon llu; real estate of his father, appointed his tutor, if he has notciiused the registration ofthe marriage contract, the act of tutorship, or the deed of parti- tion. Liirard is. Blais, 8. C, 2 L. (J. 11., p. 87. 17. ]Jut a married woman whose marriage contract is anterior to the llegislry Ordinance does not lose; the rank of hvr f/ypothdf/Hc, allhiaigh not enregistered l)e(i)re the 1st November, IHI-i. I'^x })arte Gihh uiul S/irppa/d rty upon M'hich slu- might have mortgage by reason of said clause. Brown va. Oakvifiti Sf al., Q. Ji., l.i L. C. R., p. 31-2. 19. The general hypothec acquired previous to the coming into force ofthe Registry Ordinance, 4. \'ic. c. 3), and enre- gistered before the deed of the ticni diicnl.cur is sufiicient to preserve the hypothec of the hypothecary creditor. Moge vs. Diipre, C. (J., 3 L. C. R., )). 138. And such hypothec attaches to property purchased subsecpiently to parsing of said Ordinance. Brown and Oukman ^ cd., Q. ii., 13 L. C. R., p. 3 12. 20. The party who wishes to acquire an hypothec, shonld specify in the deed the amount with which the immoveable is charged. Ex parte Cazeluis and Hums y < pjiosant, S. C, L. R., p. 34" ; also Ex ])arie Camirant. and Ltur ux, i>i)posant, S. C, 2 L. C. J., p. 139. But viile supra iS'o. i J. 21. Jkit the general registration of a deed, bearing date previous to the enacting of the ^th Vic. c. 30, without a memorial or claim for any specific sum fi r arrears of life rent, or arrears of interest which may be due u|)on such deed, is sufficient to preserve the rights of the creditor for the whole amount of such arrears, and it is iiot necessary that any memorial for such arrears should have been regis- tered. Pellelier vs. Blichavd and divers opposaiits, 8. C, 1 L. C. R., p. 165 ; also McLavghlin S^ al. vs. Bnid/nay ^ai., 3 Rev. de L^g., p. 34-0. And so also li.ir in'erest accrued BubstMjuently. Resina vs. Petifdrrc, and Derovssdle and Wcod 4- al., S. C, t L. C. R., p. 284.. 22. The registration of an ordinary conventional hypothec, bearing date subsequently to the coming into f rce of the Registry Ordinance, is only effectual for two years and the current year, as regards interest against a subsequent hypo- / ! ■ I 5 . t 1 lli |!: m^ I h V-' '!lii>lil I; 'i- It 144 HYP HYPonrftQ F. : — tliec duly rogistorod, but is uf no cfR'ct as to costs to recover tin* aiiKiiiut. Mni-in is. Duty, S. (!., G L. C. 11., p. 4-H. " 23. Hut since tiie pnssinp of the 16 Vic. c. 20G, s. 7, [C. Sis. L. (J., cup. 37, sect. 4'.'^,] tin liy|>othcc miiy subsist for a lid' rent creatccl by ii deed (dgiri inter liios, wiMmul mention of 11 specific nnioiiiit. Cfiapnis vs. Libtl, S. C., 'i L. C. II., J). +77. Hut not so for ii life-rent creuled by tesliiinent, in wliicb C!ise the inimoveiible charged must lie desisiiiitcd and specially affected by the tcstanu'nt, for a sum «if money, in conformity with clause 28 of the Ord., 4 \'ie. c. .'^0, [C Sis. L. C, c. 'M, sect. +;'>.] Gri'goire vs. Lafinurc, S. C, 3 L. C. .1., p. 18 1. 'i\. liut registration 1)y memorial of an hypotlicoary claim, f nnided upon a deed of dunation, which does not state the amount of tln^ claim, is imtperative against a siibse(pient l)onu fide purchaser who has duly registered his deed of acfpiisilion. Such a memorial should contain the allegations nee'ssary to disclose all the rights sought to bo preserved by means thereof. Fraser et ux. vs. Puulliif S. C, 8 L. C. Ii., p. 319. 2.^. The revocation of a donation onereusc does not affect \he h)/potJie(jues created by the doneo during the existence of the don ition. Lajlcur and Girard, iS. C, 2 L. C. J., J). })(). 26. Under the 4t]i Vic. c. 30, all wills made and pid)lished previously to the 31st December, 18+1, must be registered to enable legiiiees to rank according to date of hypothec. Diicitcsnay vs. Bidard, and Campbell and Dklard, H. C, 1 L. C. H., p. +3'). 27. Hypothecation is only created on the real estate of an executor from the time of his acceptance, by authentic acte of the executorship. And his acceptance must bo onregis- tered to enable a parly claiming under the will, to rank by j)rivilege on the estate of the executor over an oniiiiary mortgage creditor, whose claim has been duly registered. David vs. Hays, 5S. C, 3 L. C. 11., p. +40. And also Lamoihe xs. Hi/fcfnns, S. C, 9 L. C. R., p. 7. And in Lnmothe vs. [loss and Ross ct al., opposants, and The Trust and Luan Company of Upper Canada, fS. C, 2 L. C. .1., p. 278, it was held, that an hypothec does not attach to the property of an executor, by reason of the registration of the will imdtr which he is aj)|)oinied. 28. The hypotheque. legale is not exempt from registration under the +lh section of the Registry Orlinance, [C. Sts. L. C, c. 37, sect. 3.] The Queen vs. Comtc et al., Q. B., 2 L. C. J., p. 86. * See Vbo. Costs. Previoii-ly to lliis (lecisiun u dillerent nilingr, more in ni'oordtiiice with principlf, Inul Ix-en conn.' In. For Uir Intier (lcci>ii>ii, JMweviT, ii v»-rl)i»l (Jt-lencf liosed on IheStaailf inny liu oUl-rcil. But iht^ mif should not lie tbr»oitf n ilistt the ncceNKory Collows (he prini'ipHl, ami lliul a> the <•< .sIk <■! re< ovitv of a tli-ht, aie nil uiidoiiblftl acrcs.«"i>ry ol'llie delit, the Siniiiu- ilieif 'me is coiiiiiU-te in this rciiect. EI.sp how i-otild ieittresl have lit-en given ? lis amount could not ho a sum of inom-y '' >peciully iiientionfd." It is in vain to trgue Ihat it is in vinne ol the M ih siilion ol the Ordinance, for the o! ject oflh.it section is to restrain the rifilu ;o inlcie.-t to two yvais, not to create it. Had iheie lieen no such clause it would not Imvc kvn |>'etendorclniu'e •iic-i' liased iry ("ollowa M>ry oltlie have lifeti in viiiri to sectiim ia ml) <•lHtl^e : ijiiaittum a deulam- llrroTiiftQi'E : — 2!). Tlie Iiyi"jtluc:iry erculitor may ellectually regisster his title, ufUr the jiropcrly hyputhecateti inliis fiu'or, has passed into (he lianils ol' u snljsr^)U', Larorsc t registeml, is not eijuivalenl or sullieicnt to defeat the claim of n sul)sequent hypothecary creditor, wliose claim has hcen registered. Iklesderniersrs. K/n^sirj/, S. C, 3 T.. C 11., p. HI. And the registration of the transfer of a deed, passed prior to the carrying into force of the Registry Ordinance heCore the 1st of November. ISil, is not suflicient to preserve the rank of fn/put/irrjiu of the said deed. Wurleb: et n/,, vs. j\ln»(7ni}aj and (Jirard mul Paquet, oppo- sants, I l?ov. do Leg. i>. 231. 32. The loss of n title hy a tj's' viajor is no jui.swcr to a third ]iarty, alleging the non-registration of snch title, and registration by memorial only preserves the rights set ii'rth in such memorial. The registration of a litre nouvcl cannot prejudice a third party -who has already registered liis title. Carrier vs. Angers, iS. C, 3 L. C. R., }'. 42. 33. A copy delivered by a registrar of a deed of sale of a real estate deposited in his olHce for registration is no evidence of such sale. Sye and Colvi/lc ct (d., (.1. W., 3 L. C. R., }). 97. Nor the copy from the books of the registrar of a deed registered at length. Vbo. Evidence. 34. The G Vic. c. 15, s. 2, [C. St.L. C, cap. 37, sect. S,] which exempts Seignorial rights from registration, dues not apply to interest accrued thereon by virtue ol u special sub- sequent agreement. Ex parte Mailloux, S, C, 3 L. C. R., p. 192. Also Moge vs. Laprc and Massue and Mvrrison opposants S. C, 1 L. C. J., p. 255. 35. The hailleiir de fofids who has not registered his deed before the 1st November 184-1-, may wage his liypothecary action against the legataire universel of the acqnercnr, he not being a tiers detenteur, in the sense of the -tth Section of the Registry Ordinance, [C. S?t.L. C, c. 37, sect. 3.] Larive vs. Fontaine, 3 Rev. de L6g. p. 33. 36. Under the provisions of the 4 Vic. c. 30, he who has first enregistered his claim will be preferred to the other, both being registered subsequently to the 1st November 1844. Normand and Crevier et al., Q. B., 10 L. C. R., p. 42. 37. If two acts be enregistered at the same moment, it is not the number endorsed by the registrar that will fix the priority of the mortgage but the dates of the deeds. Grenier vs. Chaumont, S. C, 5 L. C. J., p. 78. 38. When the certificates of a registrar show two deeds to have been registered on the same day and at the same hour, and he gives precedence in number to one, the claims upon both deeds must, under the 4 Vic. c. 30, sect. 11, [C. 10 146 II Y I' 1 1 liVPOTIlCuUK : — St. L. C, cap. .'H, 8ocl. It,] l)c colloeatod concurrently in a report ol' tli.sirilmlioii. LniJ'rstt/ vs. Ilenaiid and divers oi)|)().sanls, S. C, 9 L. C. R., p. '298. 39. riulcr the 4th Stction of tlu« 4 Vic. c. 30, [C. St. L. C. cap. 37, sect. 3, siib-scct. 2,] the doCcndunt.s, (hmatnires of the land isouglit by the action to bo declared liyi)otliecatcd, are not purchasers or grimtees for or upon valuable consider- ation, so as to enable them to invoke, us against the plaintifl', the non-registration of his litre dc ircancc ; or the registra- tion of the judgment founded thereon subsequent to the insinuation of the donation. Holmes vs. Curlier ct al., S. C., f> L. C. K., p. 29G. 40. It is not necessary to register old titles to property. Murphy vs. Donavan, S. C, 2 L. C. II., p. 333. Hut original grants and letters patent, creating a general hypothec, and made and issued before the 4th Vic., are subject to registra- tion in order to preserve the general hypothec. The Sollidtor General, ^;;o. lieginti and the People's Building Society, Q. B., 1 L. C. J., p. bf>. 41. Hypothecs resulting from deeds of lease need not be registered, according to the terms of the 17th Section of the Registry Ordinance. But upon the proceeds of a Bail Emphyteotique the lessor can not claim arrears due in virtue of such lease, to the prejudice of a creditor of the lessee who has duly registered before him, Tetu vs. Martin, S. C, 7 L. C. R., p. 42. 42. An ordinary lease not registered does not produce a general mortgage, notwithstanding the 17th section of the 4lh Vic. c. 30, [C. St. L. C, cap. 37, sec. 10,] and this in virtue of the sees. 1st and 28th of the same Ordinance, [C. St. L. C. ib. 1 &; 5 & 45,] which prescribe that the mortgage must be special and must be registered, and of the 29th section [C. Sts. L. C. ib. 46] which enumerates the general mortga- ges that will continue to subsist and must be registered. Hillier vs. Bentley, S. C, 7 L. C. R., p. 241. 43. The assignor of an hypothecary claim may eiTectually discharge the same to the prejudice of the assignee, by registering a discharge thereof. Morrin vs. Daly et al., and Derousselle, S. C, 7 L. C. R., p. 119, 44. Ventilation of the proceeds of an immoveable property may be ordered, in order to distribute the proceeds of the land among the creditors of the vendor, and the proceeds of the improvements among the creditors of the purchaser, Bedard vs. Dugal and Bidard and Brunei, S. C, 1 L. C. R., p. 173. 45. An hypothique genc'rale dating as far back as 1815, and claimed in respect of land situate in the county of Sher- brooke, and duly registered in accordance with the provisions of the Registry Ordinance cannot be affected by want of registration during the period that the 10 and 11 Geo, IV,c. 8, was in force, without averment that the debtor held the land whilst the Statute was in force. The Queen and Comte et al.f Q. B., 2 L, C. J., p. 86. II Y I' 147 et al., IIvPOTnt:uUE : — 46. The noii-ro^istriitioii ul' si iloetl of ciinviiyuiice uiulor the I'roviiiciiil Stiitiitf 10 and 11 (un). IV, c. S, 1 VVm. IV c. 3, luiil 2 Will. l\', c. 7, il(H's iKtt tiporutc as uii tibsuliito nullity, iftlu* siibsrijiu'iit piirchiiscr Ito nut a fjonu fhlr piirclmscr lor valuable considi-ratiun. Smifh vs. Tmi// anil I'fii/lips Oi>pusaiit, 2 Kev. dc Lcir. p. 194-. 47. A pruuiiNi- of salt', lullowcd by jiusses.sion is ('(luivalont to tin ab-solute sale ; and an liypotliccary claim, created against the vendcjr, subsequently to such promise ol' sale, is inoperative as ajrainst the property so sold. (Inssrlin and the Grand Trunk Rn'dnuy Vompany, (.}. 13., L. C. 11., p. 315. 48. A purchaser who has registered his title deed cannot^ be bound to sufl'er a coupe debois, to which the property has been subjected, and the title whereof has not been registered, although the purchaser had a knowledge of its existence. Thibcault vs. Dupre et (d., S. C, 5 L. C. 11., p. 393. 49. A bankrupt, purchaser of real property from Iho trustees of his estate, the re(juirements of law having been, duly observed, cannot revive an hyiK)thecary claim, which had subsisted upon tlie pronerty and which had been extin- guished by the sale made under legal authority. And a subsequent purchaser sued hypothecarily, by reason of such claim, may urge, by way of exception, any fraud with which such claim may be tainted in consequence of its revival. A donation of the pretended arrears of a life rent to the minor children of the bankrupt, such rent being payable by the bankrupt, and the latter accc{)ting the dona- tion for his children, after the granting of his certificate of discharge and the sale of the property, is inoperative in relation to the purchaser, and the donation will be declared to be fraudulent, although the minors had not personally been participators in the fraud. Cadieuz and Pinet ct al.f Q. B., 6 L. C. Pv., p. 446. But sec Exp. Chabot, Rev. de L6g., p. 265. 50. A bailleur de fonds, who has previously brouglit an action against his personal debtor, and caused the sale of an immoveable property acquired by such debtor in exchange for the one subject to the privilege of the bailleur defends, is not in law to be considered as having ratified the exchange, nor as having consented to the substitution of one immoveable property for the other, nor as having renounced or abandoned his privilege upon the property by him sold. Bouchard and Blais, Q. B., 4 L. C. R., p. 371. 51. The purchaser of a property, who has undertaken to 'discharge certain hypothecary claims equal in amount to the value of such property, cannot, when sued en declaration d'hypothique by a creditor, other than those he has under- taken to pay, but whose claim is posterior to those last mentionea creditors, require that such creditor will give him security that the property when brought to sale, will realize a sufficient sum to satisfy the claims he has under- taken to pay ; as he would have a right to do, if he were himself an hypothecary creditor for the amount equal to the 10* 118 II Y r ; I. IlyroTiit-.Qi K : — valiir of tho j>ro|K'i-ty, or luul uclually \\;\n\ oliiiius (o tliat nnioMiit, luul liiul liiin.si'll' iUM[iiirt'(l tlio s;niu\ Trssirr rs. Folardcait, i<. C, - the same, under the S \'ie. e. '27, sec. (i. [Kfl'ete hut ellect saved, C. St. L. C, Schedule IJ, p. 1000.] i>o w. baillrur defomh, who has not rejrislered, can ilemand the resiliation of the deed oi' sale, in delimit of paynuMit of the purciiase money, to the ]n"ejudiec of a subse(|ucnt purchaser, who has no; undertaken to pay him, and wlio has i-aused his deed to he registered at length. PattciKtitdc a?itf Lrriixc. dit LapIanU ct (d., Q. B., 7 L. C. W., p. ()(). r)3. The compulsory sale for public uses, of a ri^al estate hypothecatetl t(.)r a ro/f.r constitiur, only entitles tlu' creditor olsuch lenlc to claim a proportion i>f the cajiital eiiuivalent to the value of the jiroportion of the estate alienateil, and not th(> whole of such eajiitid. The Montrnd and Lacltiuc llailrnad Co))q"tny (i)/d Scrrs ct nl.s and La lhi?/(/ur du Fn/p/r and. Done^ani, S. C, 1 L. C. K., ]\ Vlv>. f)i. A servitude ricUe created previous to the lvec;islry Laws, need not be registercnl. Donon et a/., vs. Riirt vt a/., S. C, 7 L. C. Iv., )). 2.'>7. Anil Dorian ct aL, and Rivet, Q. B.,\ L. C. .T.,p. .308. f);"). Tlic parlies only wlio siillered l)y the (ires of lSir>, and were then, and are now, owners of the lots upon which they intend to rebuild, are entitled to a loan by way of debentures, conformalilv to the provisions of the 0th Vic. c. 62, and ot the 10 and 11 Vic. c. 3r>, and in such cases only, the Crown has a privilege for such loan, and for a loan made to persons who have beconu:" owners of such lots subserpuMitly to the th'cs of 181.5. Ti'tn ct a/, and, CUackemeyer, and the Attorney General and Leinoine, S. C, 1 L. C. 11., p. 310. Tint in Lavnie, against the Queen, it was held in the Q. 15., that the general hy[)othec given to the Crown l)y the IStli sect, of tlu^ i) Vic. c. 62, for the advances under that act, ' attaches without, registration, although tlie loan was made after the borrower had rebuilt, and was not applied as con- templated. 11 L. C. R., p. 63. The Corporation of the city of Quebec has no privilege upon immoveable ]>roperty for the assessment imposed upon the same ; such privilege not being given by the act of incorporation and having no . ' existence at common law. Ensor and Orhici/f S. C, 3 L. C. E,,p. 289. - ' i ' ,56. A hnilleurdc fonds, who has not enregistered his deed - ; within the delay fixed by the 16 Vic, c. 206, [C. St. L. C, ' cap. 37,] is excluded by the subsequent purchaser, who has not assumed the debt due to the hailleur de fonds, and who •• • has enregistered before him. Lynch vs. Lediic and Mathicu, '-rfij- S. C, 3 L. C. .1., p. 120. II Y r to 1 M r U9 lIvPOTiifiui I". : — tk /(t a (t> a it « (4 »i r>7. A jifison who consents to tlio hypotliocatioii in I'livor ofanntliiM-, ol the real o.slulo hyiH)thociitiul in his own liivor, will hi> held lo liavo waivnl his priority ol" hypollioc in favor oT tlio oro(l''.)r oblainin<;' such snhsi'(|iiont liypotlioc. St/mr.s rs. ]\lcl)o)ial(l atul llobciisnii rt (t/., (tpposants, S. C, i) L. C. 11..)). IS'J. r>8. I'riority ol' cession of a jnul of a liypothcoiiry ohuin, •xivcs no i)r(M'crcMiC(' to tlie first irssionnaifr over the second, or any siihse(|nent cated. (i>r()iix r.s". Oiiuflticr, and iiirni/x (iiid Moiincnaix, .S. C, (5 L. C. J., p. 'J44t, and 12 L. ('. K., p. -VWW r>9. 'riie creditor who has a hypothecary rinlit prior to certain charges roservtHl in the seizure o( an ininu>veul)lc, may by <>pposition afin d^innu/cr ol)tain the radiation of these eliarji'es. Li)HO}xrx r,-;. Mursant and LaM/r, S. C, 7 L. C. .1., p. '27(i. V/(fr Stntih vs. 7hv>rfi, '2 Ilev. iK' Ta't;.. p. l~i. " lUii.nr.H. CoMIM'.NSATlON. FinKJlSSF.UR. Insukanck. Om.KiATION. rivnToKv Action. IrxECAMTv or Sr,\TK,\ci: : — Vide IIaukas Cokius. Impenses : — y.'dc rsurnucTUAHV. Impotency : — Impolency at tlie time el' marriac,-e renders siicli mar- riai;-e null ; and tlic Court will order the defendajit \o submit to the inspoelion of two surueons. and in default ol'Iiis com- pliance with tiiis order the marriacc will be deidared null and void. Ditrion and TAU/rrnl, in appeal from ^^)ntreal, ISil. Improvements.— ^1. X tiers dHoitrur has no riiiht to claim to hold the ]irt»pertv until his improvements have been jyaid Cor. Prirc ?'v. Nrhon, S. C, 2 L. C. R., p. 1^)5. lUit he may demand security that the immoveal»le will lie sold for a snflicient sum to reimburse liim. Wilhall rs. E/lis, S. C, 4> ,L. C. K.. ]). ;i.^)S. 2. A defendant who has made permanent aiul durable, improvements upon a lot of lauil souiiht to be recovered by petitory action, has a, rif^ht to be indcninilied to the extent of the increased value < same. And a defendant in possession of thi' rights of W., the original lessee of the Crown, under lease for 21 years from the 12tli Febrnury, 18 IS, is entitled lo hold possession until Iho expiry of tho lease (12th F(>bruary, 18.'if>) ; and the plaintifi' is only entitled (o the rents, issues and ]>rotits of the lot from tho lust mentioned date, notwithstandinf; he holds the lot by a transfer PMile in 1835 of the rights ofL. as ]nitentce of the Crown nnder letters patent of 1827. And in snch a case, tho Conrt below should have ordered an c.riprrii.sr to ascertain tho valno ol the ameliorations, and the amount of the routs issues and prolits, such ameliorations to bo valued from tho ; 150 I I\I P to INC m \ : Improvements : — date of the lease, jind the rents, issues and profits from the expiry thereof, the expertise further to establish the value of the lot, apart from the increased value given to it by the ameliorations. Lawrence and Stuart, CJ. B., 6 L. C. R., p. 294<. 3. A squatter who has made substantial improvements (imjJenscs utihs) upon real property occupied by him, with- out the consent of the proprietor, is entitled to judgment against the proprietor for the excess of the value of such improvements beyond the rents, issues and profits, and to retain possession of the real property till paid for hi.s improvements. The value of such improvements must bo established by an exj^crtisc. Stuart vs. Eaton, C. C, 8 L. C. R.,p. 113. Confirmed by the Superior Court, .Zi., p. 120. But a possessor of land in bad faith has no droit de retention for improvements. Latic et al,, vs. Dclo;^e, S. C, 1 L. C. J., p. 3.* 4. Upon a claim for improvements upon real estate the usufruct only of which has been seized, a proportion alone of the value of such improvements will be allowed, measured upon the increased value given to such usufruct. Fauteuz and Boston, Q. B., 9 L. C. R,, p. 263. Imputation. — 1. If the parties have not themselves imputed a pay- ment to the settlement of any special account, it will be considered as imputed to the payment of interest. Re Du- mouchclle tj- MoJJ'att and G?Vo2/f«-rf, opposants,2 Rev. deLeg., p. 258.1 And so also it was held, Lafontaine, C. J., dissenting, in a case o^ Rice Sf al., and Ahem, Q. B., 6 L. C. J., p. 201. And afterwards on a debt bearing interest. Broolcs ^ al. vs. Clegg, Q. B., 12 L. C. R., p. 461. 2. But moneys paid by an hypothecary debtor to his cre- ditor, in respect of two debts of different dates, both payable by instalments, but subject to the privilege of acquitting the more ancient one before it became due, without imputation made at the time of payment, will be imputed, Istly. In ex- tinction ol the interest accrued oa the more ancient debt ; 2ndly. On the principal of that debt whether due or not ; 3rdly. On the interest cfue on the more recent debt, and lastly, on the principal of the last mentioned debt. Casson vs. Tiiompson, S. C, 1 L. C. J., p. 156. Incidental demand : — An incidental plaintiff must shew on the face of his declaration that his demand is connected with the de- mand in chief; and the incidental defendant must avail him- self of his omission by an exception d la forme, otherwise he waives the irregularity of the proceeding and admits that he is rectus in curid. Turner tj- al., vs. Whitfield, S. R., p. 46. Incumbrances on Property : — Where a property subject by law to lods et rentes is sold, without mentioning such incumbrance, the purchaser is presumed to be aware of it. Mussen vs. Philbin, S. C, 7 L. C. .1., p. Wfi. • It would be instructive to know in wliat the defi;iilion of a squatter differs from that of a possessor in bad laith. I See the report for the reasons of dissent of Judge Vnllierns. Also for note of a con- trary decision at Quebec, in the case of Stevenson vs. Gugy. IND lo INS 151 Indemnity for demolition of house to stop fire Imdemnity: — Vule Railway cases. ■ Vi'Ic Mandamus. It E.OAD. Indians : — Indians have not by law any right or title by virtue of which they can sell and dispose of the wood growing upon their lands set apart and appropriated to and for the use of the tribe or body of Indians therein residing. Such wood is held in trust by the Commissioner of Indians Lands for Lower Canada. The Commissioner of Indiari Lanch vs. Pay- ant flit St. Onge, 3 L. C. J., p. 313. But they may qualify as security in appeal on lands held by them according to the custom of the t; ibe. Nianentsiasa and Akivircntc t^- al., Q. B., 3 L. C. .1., p. 316. Indictment: — 1, The private prosecutor on an indictnuiut for forcible entry and detainer, cannot be examined as a witness, if the Court may order restitution. But if, since such foi'cible entry and detainer, he has been restored to possession, he may be a witness. 11. vs. Ilughson ^- al., 2 Rev. de Lfeg., p. 54i. 2. Before pleading to an indictment, the defendant must submit to the jurisdiction of the Court. The Queeti vs. Maz- wcll, Q. B., 10 L. C. R., p. 45. 3. Where on a conviction for forcible entry, it appears, that defendant entered by an open door but sent some one round to push in the windows, and he himself took them off the hinges, Ihe conviction will be held good. Q. B., nppeal side, Reg. vs. Martin, 10 L. C. R., p. 435. Indication de Paiement: — Vide Compensation. Indorsement: — Vide Promissory Note. Information : — Vide Conviction. Informer: — Vide Execution. Inimitie Capitale : — Vide Recusation. Injunction: — Vide Mandamus. Innkeeper : — Vide Hotellier. Insanity: — The a.ctwi\ ab irato cannot be brought in this Province; and aversion, to be a proofF of insanity, must be an aversion without cause. Phillips vs. Anderson, S. C, L. R., p. 71, " :—Vide Clarke vs.^larke Sf al., S. C. L. R., p. 20. Inscription de faux: — 1. An inscription en faux cannot be had against an instrument which bears none of the characteristics of authenticity. Molson vs. Burroughs, S. C, 2 L. C. J., p. 72. And the certificate of the attorneys of one of the parties in a cause upon a copy of judgment, to the effect that the copy of judgment certified by them is a true copy, is not a faux, as known and recognized by law. Perry vs. Milne, S. C, 6 L, C. J., p. 243. But in a cause of Seymour and Horner i^al.. Monk, A. .T. appears to have been of a different opinion, S. C., 12 L. C. tl., p. 90. And the return of the bailiff of service made by him of such a copy of judgment, so certified as a true copy, is not a faux. And moycns de faux filed in such a case are irrelevant ^and inadmissible. Perry vs. Milne, V. suprd 2. And a bailiff's return that he had served two defen- dants, co-partners, resident in Ottawu, at their office in the city of Montreal, it being admitted that they had no office in Montreal, is not a faux. Hobbs vs. Seymour tio7i en faux. And the sheriff's return cannot be contested but by an inscrijition en faux. Lesperance and Allard tf- al., Q. B., 1 L. C. R., p. 15-t. 13. On an iiiscription en faux against pleadings and exhibits, as not having been filed on the day they purport to have been filed, they may be withdrawn and others filed, in their place, on payment of the costs of the procedure en faux and 30s. costs. Mayer vs. Tho7}ipson ^' al., S. C, 1 L. C. J., p. 280. l-l-. In proceedings on insciiption de faux it is not neces- sarv to make election of domicile. Martineau vs. Karrigan, S. C., 3 L. C. J.,p. 190. 15. The truth of tiie certificate of the prothonotary can only be attacked by insa-i2Hion en faux. De Beaujcu vs. Masse, S. C, 7 L. C. J., p. 105. 16. A party will not be allowed to inscribe enfau?: against a bailiff's return later than four days afler the filing of the return without cause shewn. Perry vs. Milne and The Ontario Bank, S. C, 6 L.C. J., p. 243. But otherwise upon cause shewn on affidavit, lb. Also in the case of Seymour vs. Horner Sj- al., S. C, 12 L. C. J., p. 90. -Vide Amendment. - " Notary. - " Registers of Baptism. Inscription: — Vide Pleading and Practice. Insinuation : — Vide Hvpotheque. Insolvency : — Vide Assignment. " : — *' DfiCONFITURE. u . — »c Privity of Contract. Inspector of Ashes : — Vide Agreement. Inspector of Roads: — Vide Notice of Action. Instance : — Vide Co-partners. Instituteurs : — The salary of a teacher cannot be seized. Ro^j vs. Codire et les Commissaires d^Ecole de St. Ours and Meilleury T. S., S. C, L. R., p. 59. Insurance : — 1. The sale of injured property extinguishes the con tract of insurance as between the insurer and the vendor ; the profit of such insurance being vested in the vendee so '•), V ;) . 154 INS Insurance : — soon as the insurer is notified of the sale and acquiesces in it. Lcclaire vs. Cra])scr, S. C, L. R., p. 18. 2. Policies of insurance are to be construed by the same rules as other instruments, therefore where there is an express warranty, there is no room for implication of any kind. Scott vs. The Quebec Fire Insurance Comj)any, S. R., p. 147. 3. By the clause or condition in policies of insurance, that in case of any dispute between the parties, it shall be referred to arbitration, the Courts are not ousted of their jurisidiction, nor can they compel the parties to submit to a reference in the progress of a suit. Scott ct al., vs. The Plutnix Assurance Comjmny, S. R., p. l.'>2. 4. The proprietor of a house destroyed by fire, and insured, can insist strictly upon the clause contained in the policy of insurance, that the works shall be seen and examined by experts, and that so long as the insurance company shall not have complied with this condition, even fur inconsiderable works, the proprietor is not bound to receive his house in that state, and can sue the insurance company to compel it to surrender the possession of the premises in the state in which they ought to be, and after compliance with the con- dition of an exiiertise. And the circumstance of the proprietor having, during reconstruction, made suggestions to the builder as to the manner of surli reconstruction, or as to the division of the house, cannot be interpreted so as to deprive him of his right to an expertise. Allcyn vs. The Quebec Fire Assura7tce Comjmny, S. C, 11 L. C. R., p. 394. 5. If a condition referred to in a policy of insurance against fire requires, in the event of loss, and before payment thereof, a certificate to be procured under the hands of a magistrate or sworn notary of the city or district, importing that he is acquainted with the character and circumstances of the persons insured, and verily believes that they have really, and by misfortune and without fraud, sustained, by fire, loss and damage, to the amount therein mentioned, such certificate is a condition precedent to a recovery of any loss against the insurers on the policy. And if a certificate be procured, in which a knowledge and belief as to the amount is omitted, it will be insufficient. Scott et al.. The Phccnix Assurance Company, P. C, S. R., j). 354. And where the furnishing of a certificate, as required by the condition of a policy of insurance, of three respectable persons, to the efl^ect that they believed that the loss had not occurred by fraud, is a condition precedent, without a compliance with which the assured cannot recover. Racine vs. The Equitable Insu- rance Cmnpany, S. C, 6 L. C. J., p. 89.* * These decisions offer an example of the evil ol" using technicalities drawn from a system of jurisprudence wholly diflerent from ours. The "condition precedent" translated into the language of the civil law, if it have a. synonyme aiall, is a " suspensive condition." But in addition to the " condition"' and the " term," oy which obligations may be affectet). the civil law also knows another limitation, the «' mo/lu-s." These three limitations to obligations are subject to different rules, therefore they cannot safely lie classed together. In the case before us, it would seem, that the judgment turned on the want of title, until this *' condition precedent" was complied with. In fact no certificate, no obligation. This is unquestionaoly the rule where there is a suspensive condition, but not where the contract INS 155 acquiesces r the same lerc is an ion of any imj, S. R., ranee, that be referred uriscUction, eference in z Assurance nJ insured, \e policy of aniined by ly shall not onsiderable lis house in ,0 compel it the state in ith the con- e proprietor ) the builder the division ieprive him Quebec Fire f insurance re payment lands of a importing Icnmstauces they have ;tained, by lioned, such of any loss frtificate be ;he amount Vte Phaniz where the ition of a lo the effect by fraud, ith which 'table Insu- Ifrom a syslem Vanslated into ve condition." «y be afltjcted. I limitations to together. In title, until this lion. This is the contrait Insurance: — 6. In tlte case of a policy of insurance granting permis- sion, in the body thereof, to insure clsewhore, on giving notice to that end to the directors of the company, in order that the second insurance might be endorsed on the policy, and requiring by the by-laws of the company, printed on the back of the policy, that such notiqe be given and such second insurance endorsed on the policy, d 2)ei?ie de nullite, a notice of such second insurance, after the fire, and as a consequence not endorsed on the policy, is sufficient. Soxipras vs. The Mutual Fire Insurance Company for the Counties of Chamhly aiul IIimti?igdon, S. C, I L. C. J., p, 197. 7. And in AttvcU is. The Western Assurance Company, S. C, 1 L. C. J., p. 278, it was held, that the condition usually endorsed on ])olicies of insurance, respecting double insu- rance, will be held to be waived on the ]iartof the Insurance company, if their agent, on being notified of such double insu- rance, make no sjiecific objection to the claim of the assured on that ground. But this case was reversed in Appeal, Q. B., 2 L. C. J., p, 181. But in the case of Chahncrs and the Mutual Fire Insurance Company of Stanstead and Sherbroohe Counties, Q. B., 3 L. C. J., p. 2, it was held, that the 23rd section of the Act 4 Wm. IV, c. 33, respecting double insu- , ranee on houses and buildings, does not apply to insurances on goods. And an endorsement on a policy issued under the provisions of the said Act, cojisenting to the removal of the goods insured, from the building described in the policy to another building, and signed by the secretary alone, is binding on the Company. 8. But the rule endorsed on policies in some insurance companies, that the insured shall notify the company of the fire, and the circumstances attending it, is not, in every cose, so fatal and de rigueur, that in default of its being fulfilled to the letter, the insured will for ever lose his recourse. Dill vs. La Compagnie d"* Assurance de Quebec, 1 Rev. de L6g. p. 113. And the mere substitution of one office for another, in case of Fire Insurance, does not necessitate the giving of notice, as in the case of a new or double insurance. Pacaud vs. The Monarch Insurance Company, S. C, 1 L. C. J., p. 284. 9. A contract of insurance may exist without the execu- tion or issue of any poKcy or of any interim receipt, even with a company whose charter and by-laws manifestly con- template the execution of a policy in all cases, and such contract may be proved by parol evidence, lite Montreal Assurance Company and McGillivray, Q. B., 2 L. C. J., p. 221. But in the Privy Council it was held that the appel- only stipulates a modus. In the latter case there is a title, but the ex *'>ution as against the party bound by the contract cannot be enforced, unless the morlies be coii olied with or have become impossible. Now, if the giving a certificate by a magistrate be a ' ' condition prece- dent," or R «• suspensive condition," and that the onice of magistrate were abolisned, it would be impossible for the insured to recover. But I take it that the obligation to grant a certificate is a modus, and that the decisions is only correct, l)ecause the insured did not shew that it had become impossible for him to perform tlie obligation in the way prescribed. Et ita aapisiimt co7idilio aecipUur pro modo, Cujat. T. 6. cot. 401 E. w \\ ifiini i 1 1 V i; ; • ■ 1 li 1!' ! ' 1 156 INS Inscuanck : — lants, under the provisions of their acts of incorporation, (4 Vie. e. 37— G Vic. c. !;:2,) cannot make any contracts for fire assumnce except by policy. 9 L. C. 11., p. 4.88 ; 11 L. C. K., p. 325; 13 Moore's Rep. p. 87. And premium taken in 1 he shape of a promissory note of a third party, though dishonoure^l, is a sufficient consideration to support a contract of irsurancc. In such a case the eviilence of the person Avho imdertook to effect the insurance for a morgtagc, is admissible to prove that he did so. And evidence of the declarations of the manager that the insurance had been eilected, and of his promises of a jjolicy, made about the date of the contract, is admissible. 10. The sale by the proprietor and mortgagor of the real esUite assured, during the pendency of the contract of insu- rance in favor of the hypothecary creditor, does not effect such insurance, though part of the consideration of such sale be a promise by the purchaser to pay the hypothecary creditor her debt, and though she be a party to it. The MoiUrcal Assurance Company and McGillivray , C^. B., 2 L. C. J., p. 221. Also, 8 L. C. 11., p. 401. 11. Interest on loss may be awarded from the time of the fire. lU. Au insurance note is not a promissory note, falling witlun the commercial code. The endorser is au ordinary caution solidaire. Montreal Mutual Assuratice Co7n2Mny vs. Dtifresnc et aL, S. C, L. R., p. 55. Vide Vbo. Promissory Note. 12. The interest of the vendor of real property, in a policy of insurance against fire, eficcted by the vendor previous to the sale, passes by operation of law to the purchaser, the sale being notified to the company. And a payment made by the insurance company to the vendor, on a loss occurring after the sale, of a sum greater than the balance of the purchase money remaining unpaid, accrues to the benefit of the pur- chaser as a discharge from such balance. Lcclairevs. CrapseTf S. C, 5 L. C. R., p. 487. 13. The insurance by an hypothecary creditor of the house or building subject to his mortgage, is not an insu- rance of the building ^;e/' se, but only of the creditor's security for the payment of his debt. To support an action on a policy, there must be a loss existing at the time of the action brought ; and if before action brought, the premises .)e re-built, whereby creditor's security is restored, he cannot recover as for a loss. Matheioson vs. Western Insurance Company, S. C, 4 L. C. J., p. 57, and 10 L. C. R., p. 8. 14. Liability of consignee who shall have failed to insure according to the usage of trade, if any such exists, cannot be taken advantage of by seizing creditor of consignor on a Ticrs-Saisi. Elliot vs. Macdonald a?id Rya?i, S. C, L.R.,p.69. But in appeal it was held that in contesting the declEiration of tiers'saisi,ihe allegations made by the contesting creditor, that the tiers-saisi received from the debtor goods for sale on commission, and for safe keeping and custody until public sale, according to the usage and custom of trade and merchants at a particular place, and that by the said usage and custom, the tiers-saisi was bound to insure the goods INS 157 ^ m Insukance: — against fire, are .siiflicient, if proved, to render such tiers-saisi liable to the contesting party in case vi' loss by lire without insurance ol" such goods, fc-o also in case an agreement is alleged between the debtor as consignor, and the ticrs-snisi that such goods were to be insured. E/iiaf. ct al., and Bi/iui f/f «/.,g. li.,6 L. C. R., p. 89. If). A Policy of Tusurnnce, describing the premises as a liouse bounded in rear l)y a stone building covered with tin, and by a yard, in wliich yard there was being erected a first class store,which would communicate M'ith the buildings insured, is not incorrect, and is not null, although it was proved that there was between the house and stone build- ing, a brick building covered with shingles, communicating with both by doors, inasmuch as the omission of mentioning such doors in the description, was not pro\ed to have been a fraudulent concealment, and inasmuch as it Avas not established that the fire had been occasioned and had extended by means of such apertures. Casey (ind Caldwud ct nL, CJ, B., 4 L. C. R., p. 107. The judgment of the Superior Court, 2 L. C. R., p. 200, was thus reversed. And in a case of Wilson vs. The Stcite lnsiira?ice Conq'any, it was held in the S. C. that the failure of the assured to disclose the existence of a fulling-mill under the some roof, as the buildings insured and destroyed by fire, is not a material concealment or misrepresentation, although it appear that the rate of insurance would have been higher had it been known, provided it be shewn by the evidence adduced by plaintiff that the risk was not thereby increased. 7 L. C. J., p. 223. Rut in a case of marine insurance, it was held, that a wilful deviation, although the loss Avas not occasioned by nor attribuable to it, exonerates the underwriters from liability. Beacon Life and Fire Assurance Company ojid Gil.b et oL, P. C, 13 L. C. R., p. 81 ; and 7 L. C. J., p. '^l. 16. In the action of Somcrs vs. The Athcnauni Jnsnraficc Co7npany, S. C, 3 L. C. J. p. 67, it was held, that in an action on a policy of insurance against fire, for the value of a house attached on both sides to other buildings, and inhabited for a portion of the time during which the policy was running by four tenants, is maintainable, though the house is described in the policy as detached from other buildings and inhabited by two tenants, provided it be proved that the error in the description of the house was made by the agent of the insurer, and that the increased number of tenants were not in the house either at the time of effecting the policy or at that of the fire. And the true description of the premises need not be alleged on the declaration, nor the error aUuded to. 17. An answer to a plea by defendant, alleging the mis- description, may be made, admitting the misdescription but charging the error upon the plaintiff's agent; and it is no departure. The parol testimony of the agent is sufficient to support the allegations of the answer and sustain the action. « ' ' And it makes no difference that the policy was for a year before the fire in plaintiff's possession, unobjected to, although '"n . I:l 168 INS ^ii! 'i; I ■ iuii ii! t< examine it and soe if it to which rofercucc was and in the policy, corrc- tlio policy. See also 9 Insurance : — there was a printed notice on it to was correct ; or that the diagram made, hoth in the interim receipt sponded with the description in L. C. ll.,p. Gl. 18. Under a clause in a jiolicy of insurance, to the eflect that if there appear fraud in the claim made for a loss, or false swearinj? or affirmation in support thereof, the claimant shall forfeit all benelit under such policy, the Court will reject the claim of the policy holder if the Company establish that the claim is unjust and fraudulent and far in excess of the actual loss, to the knowledge of the policy holder. And the general evidence in such a caso may outweigh the posi- tive testimony of witnesses, where the evidence of these witnesses is not consistent, and where the presumptions adduced are against its truth. Grenicr ct al. w. Tlie Monarch Assurance Company, S. C, 3 L. C. J., p. 100. Also Tfiomas et al. vs. The Times and Beacon Company, S. C, 3 L. C. J., p. 162. 19. In marine insurance, an endorsement upon an open policy of a cargo for insurance is incomplete, if the name of the vessel by which such cargo is shipped is in blank ; but it is perfected by a a notice to the insurers of the name of the vessel, whether they fUl up the blank or not. <' Class, B. 1," without any reference to a special classification, will be con- strued, on a policy of insurance, as meaning the class of vessels recognized by mariners as class B. 1, if there be any such class. The person who insures as agent for another cannot sue for indemnity in his own name as principal, and a consignee under a policy in his own name can only recover for his insurance agent. The possession of a bill of lading is only prifnA facie evidence of proprietorship. Cusac/c vs. The Mutual Insurance Gomjiany of Buffalo, S. C., 6 L. C. J., p. 97. 20. Assurers against fire have a legal right, on paying the loss covered by their policy, to be subrogated in the rights and actions of the assured against the originators of the fire and loss. And a marguillier en charge, having power to receive from the insurers the sum insured on the property of the Fabrigue and to grant a discharge therefor, has also the power to subrogate the assurers in the rights and actions of the Fabrigue against the originators of the fire and loss ; al- though he cannot legally make an assignment, by way of sale, of any such rights and actions without special authority. And assurers subrogated, on payment of the loss in the rights and actions of the assured, for a part of the loss only, can maintain an action against the originators of the fire and loss for such part. Under a plea of general issue to the action, for a part of the loss only, the originators of the fire and loss cannot require that the other parties injured by the same fire be united in the same action, so as to save them, the origi- nators, from thi- costs of more than one action for the whole loss. JTie Qyrhcc Fire Assurance Company and Molson et al., Q. B., IL. C. !l.,p. 222. INS tu INT 159 mnot sue Insurance : — 21. Insurance against lire, cfll'Cted upon a (juantity of coals in a certain yard, covers not oi'^, Uio coals dcj)Ositod at the time but those (U-positcd since, and covers also risk arising from the spontaneous combustion of such coals. The British American Itnurnncc Company and Joseph, (.}. J3., 9 L. C. 11., p. 418. 22. In insurance against fire the insurers pay the whole loss which does not exceed the amount insured, although the goods insured be of greater value. Peddic vs. The Quebec Fire Insurance Conqnmy., S. R., p. 17t. 23. In the case of insurance of certain undetermined quantities of ashes belonging to dilierent persons, damaged l>y water nnd subsequently destroyed by fire, each of the par- ties interested is bound to bear his proportion of the reduction made upon the amount insured, by reason of the loss caused by water, inasmuch as there were no means of ascertaining • to whom the ashes damaged by water belonged. Gilmour et al. vs. Dyde ct al., S. C, 12 L. C. R., p. 337. 2t. The loss under a clause in a policy, stipulating that the loss or damages shoil be estimated according to the true and actual cost value of the property at the time the loss shall happen, must be ascertained from proof of the money value of the subject in the existing markets. Grant vs. TJie JEtna, S. C, 11 L. C. R., p. 128. And so also it was held in The Equitable Fire Insurance Company and Quinn, Q. B., 11 L. C. R., p. 170. 25. A clause in a policy of insurance, to the effect that no action can be brought after six months, is no bar to an action instituted after that time. Wilson vs. The State Insuraitce Cmnpamjf S. C, 7 L. C. J., p. 223. 26. An assignee of a policy of insurance against loss by fire may recover without showing any loss whatever on his part. lb. 27. The amount of a policy of insurance upon the life of a husband, the premiums on which have been paid by him, and which have been received by the curator to his vacant estate, by reason of insolvency may, nevertheless, be claimed on behalf of the wife, by two trustees who accepted the donation of the amount of such policy of insurance, made by the contract of marriage, for the purpose of paying Over the interest to the wife and the principal to the children, not- withstanding that the donation and assignment were not noted on the books of the company, notification having been given in a place other than the place where the insurance was effected. Ex parte Spiers atid the Attorney General ^ pro Regina., et al. claimants. S. C.,^9 L. C. R., p. 450. True Bill. « Interdict : — A person to whom a curator has been appointed cannot bind himself in a contract while the curatorsnip is subsisting. Emerick vs. Paterson, S. C, 7 L. C. R., p. 239. But a volun- tary interdiction is void, so far as a party with whom the interdict has contracted alone is concerned, if the interdiction has not been made known to the creditor and if such inter- 1 3 ■f 160 r N T il I I lit' Interdict :— diction lu\.s not Ijcen insorihinl on tli(> rcj!,i.slt'r kipt (or tlint jiurpose. Dr Chantdl it ii/, and I)i CluviUd, Q. U., 'J L. C R., p. 4G9. Inteuest: — 1. Mfiritinio interest at the rate of 2r) per tentum on a bottomry lumd ut Qncbcc, is not cxorljitiuit, [Con. Stnt. C, cap. r)S.J T(7i/Vr 7\s. Thr Dmhi/na, S. IL, p. l.'K). ii. Tho Crown can rccovt-r interest wliere ii private person would he entith'd to it. The Alturncif General and Black, IS. U., p. :w4.. 3. In an action lor arrears of interest, interest upon tlie snn\ denuuuh^d tniiy t)o awarded. Andcrso?i et al. vs. Dcs- saulles ct al., S. C, 2 L. C. 11,, p. -tSl. 4. An obligation containing an undertaking to pay sums of money "and without interest from date till tho payments become due," implies an uiulertaking to pay interest on the sums due ih)m tho day the payments become due. Rice ct al. and Ahem, Q. ]J., 6 L. C. J., p. 201 ; also VI L. C. R., ]>.# 280. VVh(!re payments are made, l)oth the principal uiul interest being due, the sum paid should bo imi)Uted first on the interest. Ih. 5. On dotal moneys interest rims by law. Poirier vs. La- croix, S. C, G L. C. J., 302. But in a small case decided in the C. C, it was decided that interest only runs from the day of tho demand. Gautliier vs. Dagenais, C. C, 7 L. C. J., p. 51. 6. On a policy of insurance, interest on loss may be awarded from the time of the lire. 77^1? Montreal Assurance Co7npany and McUillivray, Q. IJ,, 2 L. C. J., p. 221 ; also S L. C. R'., p. 401. 7. Interest does not accrue on a legacy before a dcmandc judiciuire. Bonacimevs. Bonaci7ia and Mcintosh, S. C, 10 L. C. R.,p. 79. 8. Where there is a book account and also a promissory note, and accounts slated had been rendered including both, and charging interest, the Court will not strike oil' the interest where the defendant had not pleaded an imputation of his payments as against the note. Torrance vs. Philhin, S. C, 4 L. C. J., p. 287. 9. Interest will run on a condemnation for damages from the date of the judgment. Walsh vs. Mayor, tf-c. of the Citi/ of Montreal, S. C, 5 L. C. J., p. 335. But in a similar case. where the damage was caused by a mob, the corporation of Montreal was condemned to pay interest from the day of the demand. Douglas et al. vs. TJie Mayor, tj-c. of Montreal, S. C, 13L. C. R., p. 71. 10. Interest will run on a promissory note payable on demand from day of date. DeChantal vs. Pominvillef S. C, 6 L. C. J., p. 88. 11. The only effect of the 16 Vic. c. 80 is the repealing of 'J. , , the penalties and nullity of the contract enacted by the Ordinance 17 Geo. III., c. 3. The only legal rate of interest , ;. is 6 per centum, and any maker of a promissory note or other .... ! . ;! instrument in writing, wherein interest above this rate has been retained or paid, has the right to have the same deducted INT 161 Intbhbit :— f'ruin th(i priiUM|>!i1 inontinncd in the auid nuti^ or iiistniiiipnt ill wrilinf?. Ni/e and Mata, i.^, II., 7 L. C. II., |). iOf*. But dcfciKlaiit must ('Htiihlislk rxco.sn wXixuwiX v\\.:x i\ per ccntwn, Miiln rs. Wurtelr, S. C, 9 L. C. H., p. +3. 12. In \\\v en;,.- (»f Urtiittln/ and Prnu/.r, Q. R., 10 f,. (*. 11., p, 2.'iH. on III) <)lili<;uti(i|i, (he 'Icfriidiiiit plnidi'iMlril li> liud Siven tliu |iluiiilijr Iwu p^oiiiissury noU'n Inr X(io < icli, in eduction nt' ih(« tu/jonnt duo, ;,()d hud p;iid fhi'ni ;Mid ulso onothcr r.oli ;' ^^ £(»!), w he It was still in the pliiintill's Imnds, 'i'hc |)ltiintiirMnHW('rfd iliat t\w (iinonnt ufthr first niitcshad hcen recri /«'d, iuid lli i' Ih'' two lust nofuisi were given on an iipri'tMncnt thiit the deicnduiit should pay 1-i pur cent uiti-reft on tilt: ul)li<;atioii. 'I'hii chdinduiit, exuiiiiiu'd u\] /aits it arH' c/f?.<, admitted his undertaking to pay 1~ p<'r cent, interest, stutiiijf that in- liad been Ibrcetl to maki it liy rinsoti ut' his incapacity to pay tlin capital at tin; time it liecainc diu-. It was hehi— -that the ainoiinf of the second note luii.sl ho deducted Irom the amount of the princi|)al a'.id i:itc:iest, ut 6 per ct'iit., and lliat the liiird note did not operate as a nova- tion and must l)e given hack to delendant. Jii'/Zfuu vs. De-oio(M/e, S. (;., 1 1 J..C'. [{.. p. ICt;. Jhit sco Con. S(n. C, c. oH. " : — Vide Uypotu^cu'E. " : — " Imi'ltation. " : — Vide Tortdncc tij- < I. is. Totiancr ^- al., S. C, L. fl., p. f);'). Interlocutory. I uucment: — 1. '1 he Court will refuse leave to npppal on uu interlocutory judj^finent if the Court be iijjfainst tho moving party on the merits of tiie ap[)cal. Mann t\- rs. may sue together for the recovery of their di-bt Trudcau tf* al vs. Menard, S. C, 3 L. C. .I.,p.r)2. And so in Sterenson ^- (d. vs. lii.ssett, S. C, 8 L. C. R., p. 191, it was held that the joint endorsers and joint holders of a promissory note (not co-partners) might sue thereon together. .Toint Stock Company: — Vide Pleading k Practice. Judge :—l. The Court of King's Htiich has no jurisdiction against a Judge of tlie Court of Vice-Adiniraliy to recover back money paid to hiin as fees in a suit determined in that Court; but the remedy is by appeal to the Uii>h Court ol Admiralty in England, or to the King in his Privy Council. Wilson vs. Kerr, S. R., p. 34 1. 2. Commission of Judsje of Vice-Admiralty Court, p. 376, S. V. A.R. List of JudiH'sof the Vice-Admiralty Court from the cession. 76., p. 391. \o siirvi- J U D 163 Judge : — 3. A judge of the Superior Court for L(»wor Canada mny act »!s judge siuiultaueously for all the districts of Lower Canada. TallH)t vs. Luneau, S. C\, 7 L. C. J., p. ()6. JtncMENT: — 1. The sentence of a Court of criminal jurisdiction in a foreipfn state, hy which tlie exercise of the civil rights of men may he susperuh'd and altridged, is limited in its operation to the state itself in which the sentence was rendered, and does not deprive an individual of his natural rights beyond that state. And the enlbrcement of such a sentence by a foreign jHUver would he a violation of public law and of the law of nations. A statute of limitations of a foreign state cannot be judicially notict'd, b»jt iinist be proved as a fact before Courts here can decide tipon its nature anH eflect. And a plea to the eiiect that a judgment obtained in a foreign Court is v»)id, ii ismuch as no service of process has been made on the def.-ndant, and that the defendant had no domicile within such jurisiliction, aiul was not amen- able to the foreign Court, is a good plea in an action on such judgment. Addams and Warden, tj. B., (5 L. C. 11., p. 2M7. 2. A judgment rendered by a Circuit Judge, in viication, ])y constMit of p;irtii's, is null, and no appeal can lie Hit re- from. Lrr/air vs. G/ofw/iski and Gli>l)enski, ttpposanf, S. C., 4. L. C. K., p. I3f>. 3. The uuMits of a judgment i-an never be dverruhul in an original siiit, cither at law or in ecpiity. Till tlx' judg- ment is set aside or reviM'sed, it is conclusive, as to the sub- ject matter of it, to all intiMits and purposes. The P/uebe p. 63 in note, t?. V. A. R. 4. Where final judgment is rendered in a cause the Court will not afterwarils interfere to modify or exchange it in any way, either upon motion or otherwise. IJuot vs. Page, 5. C, 9 L. (J. H., p. 2'2(). Also Bcitia^id vs. Guiny, S. C.,' 9 L. C. 11., p. 2(J0. And a judgment dismissing a pleading, rendered by error, cannot be desisted from by the parties and re-adjudicated upon by the Court. Clarke S)- al., vs. C/rt/-/.:/;tj;'(i/.,«. C, 2 L. C. .1., p.2()9. But the draft of a judgment may be amended, even alter the judgment has I een pronounced, provided it has not been registered. Pals- g/are vs. Jioss and Ro.\s plaintiff e?i J'tinx, and Pa/sgrave defendant iralty has no .jurisdiction in a case of pilotage where there has been a previous judgment of the Trinity House upon the same demand. The Ffiaibef p. f>9, S. V. A R. 1+. The jurisdiction of the Vice-Admiralty Court, in rela- tion to claims for extra pilotiige, is not ousted by the Provin- cial Stat. 4.5 (reo. 3, c. 12, s. 12, The Adventure, yt. 101, S. V. A. R. In case of wreck in the river St. Lawrence (Rimouski) the Court has jurisdiction of salvage. The JRoi/ d Wil/ium, p. 107. lb. If). A great part of the powers given by the terms of the commission or pfitent of the Judge of the Admiralty are totally inoperative. The Fn'eftds, \x 1)2. lb. The Court of Admiralty, except in prizes, exercises an original jurisdiction only on the grounds of authorized usage anil established authority, lb. It luis no jurisdiction tufi a corpus comitatvs. lb. The Admiralty jiirisdictio; as to tort- dejK-nds U| on locality, and is limited to torts f.oniniitieii on the high seas. lb. Torts conniiiited in the liari our of (^ULbtc are not within the Admiralty jurisilietioii, lb. The Adnnr^ilty has jurisdiction of personal torts and wrongs committed on a passitiirer on the hifih .^eas l»y the master of the ship. Ih. Also The Tnrordo, p. 181, S.V. A. R. 17. .Tustices of the Peacr cannot give themselves jurisdic- tion in a partii'iilar eas(% by finding that as a fact which is nut a liict. The Scotia, p. 164', S.V. A. LI. ♦ OfcoiirM' ihis only ini-uii> wluTt' ilu- Wiiiit of jinisdiciion is persoiinl lo defendant, 1)uf where tlif ( oiiu hus a lixht lo laku cuguizaiico of the subject mailer. V. infra. The Mary Jativ, No. 20. J V R 167 JORISDICTION : — 18. Collision hofvvoon a stoainboat and a hatruu., botli exclusively ciiiployu'ii in tlm h iihoiu" of Qneboc, not cop^niz- able by tins Court. The Lressing his own individual opinion of tbe case. Sinmd vs. Jenkins, S. C, Ij. R., p. 38. Also, Simard vs. l\iU/e, S. C, 4 L. C. R., p. 193. J3nt in a similar case, arising out of the same facts, of Simard vs. Towfiscnd,Q. B., 6 L. C. K., p. 31. *!, in which a like judgment was rendered, and (ror.: which judgment plainiifFa[)pealed, it was held in (h>' Q's. B., that in an action of damages against one of ni e juror*, forming part of a coroner's juror ol ninet(>en. iini aiiellc I to inquire into tbe death of several persons, wlur' no ver- dict was rendered, the jurors being divided ten agninst nine, it issulfkient for the plaintiff, onooftli" witnesses examined at the inqii.'St, toailegoiu liis(b'cl;iraf ion, that tbe d ■feiidanl, with eighv', others, in breach of their o.ith as jurors, and i:i violation of tlieir duly, from Inire.l. ni.ilice and ill will to the plaintiff, and with the iuteni 1o iiij;ii-e him, did onspir-i to ciiarge him lalsely, with wilful and corruiil perjury, an I that the defendant af-resaid. in p',!rsii.,:iee of .sucIl di.'.'>igt'., diddraw up a a libellous .statement, and tlid wiekjJly an I maliciously procure the sumo to bo pulilislu'd. AikI il is nt>t competent for any one or ra;)ri,- jurors, indivaLiaMy to prefer a charge of wilful and corrupt pervcrtioa of trutli « « « « iti B' 168 JU R i>lli!:|l ■'t ■I 'IS i 1; ll'i I- Jurors : — against any of the witnesses exaimneil ; and the juror who docs so, will be liuljle to diimiiges fur any injury suffered. JwRY Trial: — 1. In an action upon an agroenicnt for the snle of a cargo of coal, by a mprcliant, to an ironmonger and ])lack- smilh, the tri:il and verdict of a jury may l)e obtained under the I'rovincial Ordinance 25(;co. IJI. c. 2, sect. 38. [Con. Sts. L. C, c. 87, sect. 6.] Hunt rs. Bruce et al., V. R., p. 3. And an action by a f)rinter in mutters relating to his biisincssi is susceptible of a trial by jury. Lovdt vs. Campb'll ct al., S. C, 6 L. C. J., p. 115. But the Cour^of Q. IJ., on granting an appeal in this case intimated that it would jirobably hold a different opinion, 6 L. C. J., 1 16. And insurance against fire by an insurance Company, being a conunercial transac- tion, an action on a policy of insurance may be tried by a jury. Smith vs. Irvine, 1 Rev. de L6g., p. 47. Also, McGUUvray xs. The Montreal Insurance Cumpavy, S. C, 5 L. c. R.,p. toe. 2. A trial by jury may be liad on an action for a breach of promise of marriage, as in an action for personal wrongs. Ferf^usson vs. ration, S. C, 4 L. C. K., p. 383. But an action e7i declaration de patrrnite, although coupled with a demand for d:ima}res, is not susceptible of trial by jury. Clarke vs. McGralh, S. C, 1 L. C. J., p. f). Nor will a trial by jury be granted in a case where there are two causes of action, the one commercial and the other not. Mann et al., and Lambe, Q. B., 6 L. C. J., p. 75. 3. Mutilating a person's horse is not considered.a personal wrong entitling the parties to a trial by jury. Durocher vf. Meunier, S. C, 1 L. C. J., p. 290. 4. A trial l)y jury cannot be had in an action of damages, by two professional men, against three merchants, for breach of contract to buy a railroad ; and so much of the conclusions of the defendants pleas in such action as pray for such trial by jury will be rejected on motion. Abbott etal. and Meikle- ham et «^.,!S. C, 2 L. C. J., p. 283. And an action of revendication of stolen goods, althought between merchant and merchant, is not susceptible of trial by jury. Fawcett et al., vs. T/tompson c'„ al., S. C, 3 L. C. J., p. 229. And an action of damages for malicious prosecution, arising out of mercantile transactions is not a civil suit of a mercantile nature susce|itib!e of trial by jury, under the cap. 84, C. Sts. L. C, sect. .39. Fogarly is. Morrow et al., S. C, 5 L. C. J., p. 2:2. 5. An action en reddition de compte between the represen- tatives of two euceessions, is not susceptible of trial by jury. Mann et al., vs. Lambe, S. C, 5 L. C. J., p. 330. Coufiimed in Appeal, 6 L. C. J., p. 75. (>. An action tor money lent by a non-trader (.» a com- mercial firm, is not liable to trial by jury. IVhishaw vs. GiJmnuret a'., rf. C, 6 L. C. J., p. 320, and 13 L. C. R., p. 94. , 7. But an action by a non-trading corporation against a C' m nercial firm, to recover back an over-charge of freight, is susceptible of trial by jury. Ha Mujesty''s Principal 111 .T CJ R to .1 TT S 169 .ItRV Triat, : — Secretary of State for the War Department rs. Edmonstone €t al., a. C, 6 L. C. J.,p' ^2-2. And in llie Q. B., leave to apjieul was rel'iisLMl, tlic case bein:^ dourly .siiscoptible of trial by jury. Jb., \>. 323, (in iiot(;.j Also, 13 L. C. R., p. 79. 8. If a party moves lor ii Iriiil by jury, be cannot afler- wanls reject tbe venliei, on tbe ground that Ibe jury oii. 88. 13. When the verdici and findings of a jury are contrary to evidence the Court wiii ortlcr a new trial. Jieaudry arujl Papin. Q. B., i L. C. J., p. 1 14. ** :— P'26^e New TiiiAL. « : — *' Verdict. ■IvsTiCE OP THE I'eace : — 1. Although .Tustiees of the Peace, exer- cising sannna;-y juriMiiclinu. he the sole jiidgrs (.f the weight of evid'Mice given bef ire them, and no other of the Queen's Courts will examine wluther tin y bavi; formed the right conclusion from ii i r not. yat other Courts may, and ought to examine whiMin-r tho premisrs stilted by the .Justice are such as will warrant their conclusion in point of law. The Scotia, p. Hit), S. V. A. ii. Justices of the I'eace cannot give themselves jurisdiction in a jtarticulur case by findiiig that as a fact which is not a fact. 1/). Vv'^here a Justice of the Peace, acting under the authority of the Merchant Scamcu's Act (.t & 6 Wm. IV., o. 19, s. 17), :i:|: f 1 SCl IfFji*'- I 170 .JUS to L A R Justice of the Peace: — Imd nwurded wages to a spamjin, on tho gronml that a charge ol'owners hud the vilhct of disolnirgiiig ihe S(!ainan Irom hii contriict ; tliis Court, considering tliiit proceedings had before the Jnsticc of the Peace did not picchide it from again entering into the enquiry, hc/d — that th. '2. In a suit for the reet)vcry ot wages under the sum of fifty pounds, Justices acting U!id7. S.V. A.Jl. 3. VVHiere a limited authority is given to Justices of the Peace they cannot extend their jurisdietion to objects not within it, by finding as a fact that v.hieh is not a fact ; and their warrant in such a ease will be no protection to the otlicer who acts under it. The Haidev, V. A. C, 10 L. C. R., p. 101. JusTincATioN :~In action by a s' aman against the master, a justifi- cation, on tho ground of mutinous, disobedient and disorderly bidiavioitr, sustained. The Cohht.fcam, p. 386, S.V^. A. R. " : — Vide A s s A u 1 .T. « . — a Pi.EADLNU iV PRACTICE. Kbrr, (Judge):— Apjioiuted Judge of the Vico-Adniirjlty Court at i^uebec, by letters patent, under the Great Seal of the High Court of Admiralty of England, on the 19th of August, 1797, p. I.'i2, S. V. A. K. His duty discharged by a Deputy, from the 30th of August, 1833, until his removal in October, 1834. Two of his decisions in the Vice-Admiralty Court, p. 383, S.V. A. R. Landlord and Tenant: — Vide Lessok and Lessee. " " : — '' Saisie Gaokjue. —A ceriificate from the lov^al ("ruwn Land Agent, of a pay- ment of an instuInuMit of the price of a (Clergy lot, is no< suflicient title to support an op|)ositioii fotuided on such certifi- cate. Tinder the 4 A' o Vic., e. 100, sec. IS, and the 12 Vic, e. 31, see. 2 [r(!pealed 16 Vic, c. 159, sec 1], the holder is entitled only to nuiiiitain action against wrong doers or tre.s- pa.s.Hers. Ross and Hclhclnt 4- .'/,/.,^Q. H., 6 L. C. R., p. V20. : — Vtdc I'lxECU'i ION. " Free and ('oivimon i^orcAoE. " llvi'oi nf.QUE. Landsman: — Qua'rr. W'hcth.T a mere lanired lease. Choquttte vs. Brodrur nml iVontcnvij, 1 Itev-cU; Leg., p. .'^3.*). Nor under any lease, liogtc it id. vs. Chinic and Proidx el al. Vide Vo. Op[)osition. 9. Creditors ciuinot seize or sell the unexpired term of a lease hi!d by Iheir debtors, this right only exists in lavorof the landlord luult'r the 16 Vic. c. 200, see. 11. [Kepealed 18 Vic. c. lOS.] IlJibs rt al. vs. Jtickon ^' al., arid Jackson, opposant, 8. C, 10 L. C. U., p. 197. 10. A clause in a lense to the efTct " Thiit the lessees sliall pay all extra premiums of insurance, that the company, at which the premises now leased may be insured, shall exact in conscfpience of the business or works ('one or car- ried on therein by the said lcss(^es," applies to ub extra pre- miums of insurance clmrged on account of the actual nature of the business carried on by the lessees, and does not merely contemplate hazardous contigencies wliich may afterwards arise, such as tlie erecting of steam engines, &c. Piatt vs. Kerry S)- al., S. C, 7 L. C. J., \>. 80. 11. The lease of a mill cannot be assimilate d to the lease of a farm, in such a way as that the law will allow a reduc- tion in the rent stipulated in case ofaiiy unforeseen accident. Corriieuu vs. Poutiot, 1 Rev. de Lt-^., p. 18+. 12. The lessee of a lot and water power near the Lachine Canal, and within the limits of the city of Montreal, from the Commissioner of Public Works under a lease for iwenty- one years, renewa])le for ever on the terms mentioned in the lease, has a jus in re, and is liable for city taxes and assessments, as proprietor of the leased property. Such case is an alienation of the domaine uti/p, the Crown having only i\\e domainc direct ViwA if made previous to 1+ & If) Vic. c. 12S, is not affected by the powers conli-rred upon the Cor- poration of the city of Montreal by the 9*ind section of their Act. Kx parte Ilarveij, S. C, .•> L. C. R., p. 37H. Also Gould ^ The Corporation of Montreal, Q. B., 3 L. C. J., p. 197. 13. Where a tenant admits a verbal lease, the lessor may prove the value and duration of the occupation. Viger and Bellireuu, Q. 13., 7 L. C. J., p. 199. : — Vide ;\ssESSMENT. - " llYPOTllftQUE. - " Opposition. Legacy :--l. A clause in the will of a testator, that a usufruct bequeathed by him to his wife should cease, on her marriage, is not tontrd bonos mores. When a tutor ad hoc is appointed LEG 173 f'ssor may I usufruct LcoAcr : — lo minors for the purpose of protecting their uterest in » usufruct boqucatlied to them, and he is siu'd r« iitive to tli -M usufruct, it is not nccessnry that u tutor ad h(K should I ■• appointed expressly for the purposes of the suit. Forsyth •)• al., vs. Williams ^ al., S. C, 1 L. C. R., j). 102. y. A devise by the linshaiul of the shnrc of the vommu' nauti beUinpinp to his wife, under a condition to jiny a life rent, is valid, if slie noeepted of tlu; condition annexed to such devise. Raij ami Gagnoriy Q. B., 3 L. C. K., p. 45. 3. A legacy from a father to a daughter, conditional on her not doing certain things, is forfeited by her doing them, and it is a fatal variance in a declaration to claim such legacy as an absolute t)ne. Freligh is, Seymour, S. C, 2 L. C. J., p. 91. 4. Where A. by his will benueaths the interest of a capital sum to each of his daughters duriu ; their lifetime, and from and after tlie death of any one of them to her chiulren, law- fully begotten, until the age of majority, and on attaining that age, " the principal to be paid to him, her or them, for his, her or tlieir absolute use," subject to tlu; proviso, that if any such daughters should die unmarried or without leaving hiwful issue, the interest should be j)aid to the surviving daughters, and one of the daughters dies intestate, leaving a child who only survives her a few days,tho legacy, in C!H)ital and interest, so bccjneathed to such deceased diniifhter, hecomes the proj>erty of the surviving husband. Ii> id and Frevost, Q. B., 1 L. C. J., p. 320. ,5. The terms "children still living." may comprehend the grand-children, descendants c?i lig?ie directe, of the testatrix, if such appears to have been the intention, iihtckemcyer vs. The Mayor, ^-c. of the City of Quebec atnl Lagucux, S. C, 11 L. C. II., p. IS. But in a case of Martin and Lee, it was decided in the Q. B., — that a bcijuest " to all her children living at the time of her decease" did not include the grand- children of testatrix. 11 L. C. R., p. 81-. 6. A legacy to a confessor is valid. Harper vs. Bilodeau, S. C, 11 L. C. R.,p. 119. : — Vide Corporation. - " Delivuance de Legs. - " Substitution. - " Will. Legatee: — 1. A party sued as universal legatee, for the recovery of a debt due by the testator, by the terms of the will it appear- ing that he is only a special legatee, will not be held liable, without due proof by plaintiff that the property bequeathed formed, in fact, the universality of the testator's estate ; and the production by plaintiff of an inventory of such estate, in which defendant is styled universal legatee, and in which no property and eiTects are mentioned other than those be- queathed to defendant, will not be held to be such proof. And parol evidence will not be admitted to j)rove a promise by the legatee to pay. McMartin vs. Gareau, S. C, 1 L. C J., p. 286. (( <( 'I i > \ ■ ; 1 .: ii. i' ; . i: 8 I' ' ■i' i' '■ '4 174 LEG to L E S H li 'I 1 1 1 ^'' ^s ! ;l ■1, if (:■■ 1 ■ ' f 1^ ■ 1 > 1 ■ ' 'i; ^iii LkOA TGK : — 2. Legatees cuniiot bring un artioii against a third party, clinrgcd by the nnivorsul Ifgntoo to pny them, for wunt of privity ul contract. Buinsford tj- nl. vs. Cliirke if al., 3 Uev. dc Lisfr., p. aJiO. Lkuislativg Ahsembi.y : — A person committed by the Legislative Assembly tu the common jail, during pleasure, is discharged by a prorogiition. Ex parte Monk, S. i\., p. 120. LBiiiNi.ATivE CouNcii. : — Tho Legislative Council has a right to com- mit for bri'Hcli of privilege in eases of libel; and the Court, will ni»t nt»tiee any defect in the warrant of commitment for such an odl-nce, alter conviction. Daniel Tracy, S. R., p. 4-78. Lboitimr: — 1. i.f^'iViwie cannot be claimed where tlie deceased has leit a will. Quintin vs. (Urard if ux., S. C, 1 L.C. J., p. 163. Conlirmed in g. B., 2 L.C..T., p. 1+1 ; and 8L.C. R., p. 317. 2. In an action for legitime, account must be taken of the clmrges to which the property given lias been made subjecl. Lrfcbnc t^ ux. vs. Boycr, Q. B. 1 L. C. .T., p. 267. Lcsion: — In an action l)y a minor to set aside a deed passed ])y him during his minority, he must prove the lesion as well as allege it. Metrissi if at. and Ihault, Q. B., 4. L. C. J., p. 60. Rut the lesion may be inferred without being positively proved. Laridire vs. Arsenaulf. tj- Lariiiire, S. C, 5 L. CI., p. 220. 'I he indemnity due to the minor for Ivsian siiIUts no reduc- tion for the itmoiMit received, unless it be proved that he has protited by such aninuut. lb. And tlio fact that ho managed a cons'c'.uiu' le part of his nfliiirs is no answer to tho action; nor will it discharge the defendant from [)aying the fruits received by him and which are duo to the minor Irom the date of the transaction, lb. The minor is only obliged to reinibiu'se the necessary expenses, IL Lessor and liEssEK : — 1. A lessee in an action for rent cannot put iu issue his landlord's title. Ilullet vs. Wright, 2 Rev. de Lfeg., p. 59.' 2. As to (|iiestion of title, raised on an action for rent. Brossard vs. Mufjihj/, S. C, L. R., p. 29. 3. A lessee of land cannot set up, as against his lessor, plaintiff in a petitory action, improvements made by the lessee on the land sought to be recovered. Peltier vs. La- richelidre, S. C, 5 L. C. R., p. 96. 4. A writ under the Lessor and Lessee Act, 18 Vic, c. 108, [Con. Sts. L. C, cap. 40], summoning a defendant to appear before " one or more of the .Judges of our Superior Court for Lower Canada, in the district of Montreal, in the hall of the Court House wherein are usually held the sittings of our said Court," is null. Such writ should be returned before the Superior Court. And proceedings had at the greffe or in chambers in such case are coram nonjudice, and must be an- nulled and the parties put out of Court. Grant and Brmvii, Q. B., 6 L. C. R., p. 187. * Nor can a third party intervene in an action tor rent lietween landlord and tenant, to wage his petitory action. Joseph vs. Moffat, and Cattwtgite if al, intervening partie4. S. C. M., decided iu li«57 or '58. L K H na Lebsom and J.knkfr: — r>. 'I'll'' |irivilopc «if ilic lmi(ll«»r«l for r«'rii i-xtnitls fo thfl expiration of llu« current year, /ui/f i[ nl. vs. Ctisry, S. C., 4 I., n. 11., p. 30 ; also YV/rf and lioisimu, «^ H., i Jf.. C. R., p. 4-6(i. 6. The lossur of a oonoort room lio« no lien on » |)iiino tPmi>ornrily pliiccd llnTf liu' an i>v«Miin^ otaift-rt, as !if,'ainHt tlu' propriftor ol'flif piaan, w lio is no! tin? Icsce. Pmrce vs. the Mayor, i\c. of the (■ill/ <>!' Montreat, S.C, 3 L.C. J.,p. Vl'L 7. A tcnaat who only owis one fcrni of liis rent may b« rspnilsod, in virtue of the IS Vic. r. lOS, sec. 'J, s.s. !•. [('on. Stp. L. C, cap. 40, yvii', 1.] Qiiintat ra. Not inn, ntnl nroim rs. TdPrs.^.C.Ah. (\ .^ ., p. 35. And so also in another fasp where tlie terui unpaid was onlv of one jiioath. Quhif.'il vs. Nnvinn, C. ('., "i L. C. .1., p. t?H ; also Mc/h»,m// .V iii. v.%. Co/fins, S. C, 3 L. C. J., p. 44. 8. Thit in the ease of ITrafry vs. Lahrlle, S. ('.. 3 T.. C. J., p. 4r), it would seem to have Ixtu held, tliat under thi' sec- tion 2, a tenant caniu)t he expelled on the cround that he does not pay his rent in eouformity with tin; conditions of llie lease. 9. In an action ofejoetnient inuh-r the Lessor nrul Lessee's Act it is not neee^snry (ornially to invoke it ia tin* Superior Court. Broun vs. JattcSy S. C. 4 L. C .1., j). 3r>. 10. Tlu^ piirehasor of a house sold hy dccrct has r. riurhtof action apainst the tieeniv.int for rent, in eonse(pience ol his lise and ciijoyinent tli'Meof at the time of sale aTul siia-o. And such occupant M'ho hjis carried off the na)veuM<'s which furnished tlie house, and \\h(> has left th(> house unfurnished should hf> condemned for the rent lor the whoic year. Lacroix vs. Prirur, C. C, 3 L. C. .T., p. 42. 11. Riirhts of purchaser with respect to tenant of vendor reniainini^ in possession after expiration of lease. Dcsallirr and Gisnires, 1 Rev. de L6g., p. 3S8. 12. In conformity with the dispositions of the 16th clnnse of the Lessor and Lessee's Act 18 Vict. e. lOS. [C. S. L. C, cap. 40, sec. 16,] a jjcrson who has occupied without lease, n house or part of a house from tlie l^tof INTay is bound (or the payment ofthe rent for the year up to tlie 1st of May of the followinf^ year. Deslon gchd/uj) i^ al. vs. Payette dit St. Anwur C. C, 3 L. C. .L, p! 44. 13. The proprietor is not oblifi^ed to give a tenant notice to quit, Avhen the lease, is for a fixed period. Johiti vs. Morriset, 1 Jlev. de L6g., p. 383. 14. The allegation that the lessor conkl not give up to lessee, the places let, owing to the violent and unjust deten- tion by a tenant whose lease has expired, is no defence to the action of damages by a second tenant whose enjoyment ought to commence. Sioanson vs. Defmj, 2 Rev. de L6g., p. 167. 15. A lessee cannot sue in one action his lessor and an other lessee of the same building for damages for leakage from the part of the building above occupied by the other lessee. The nature ofthe actions against the lessor and the other lessee is different. Mercier vs. Tlie Mayor ifC. of Montreal and Rivet and Doray, C. C, L. R., p. 54>. !l i' I * ii I '.'■ I ■fl ''\ i 176 LE S Lessor and Lessee : — 16. Under the 18 Vic. c. 108, [C. S. L. C, cup. +0,] the Superior Court has no jurisdiction in an action of duniaget . for breach of contract of lease, in not delivering {Mssession of the ])reniises leased to the lessee. Close vs. Close 8. C, 3 L. C. J., p. HO. IJut otherwise on the violation of the clause of lease, even though the lease have expired, — and the amount oi' rent iiiirs the jurisiiitJlion of the Court. Bedard is. Dorian, !rt. C, 3 L. C. J , p. 2f)3. But wiiere the term t-f a lease is for less than a year, and the rent payable for that tenn\loes not oxced JE50, (he Circuit (^ourt has jurisdiction, notwilhtaiisdiug that the annual value or ren< of the properly letised would exceed jCfiO, if the term exteiidccl to a period of one year. Clainnont tf ol. vs. Dickson, S. (.'., 4. L. C. .1., p. 4. 17. Under the Lessor and Lessee's Act the iiuiountofreut sued lor iiidicates the Court liaviut:: jiuisdiotiou over the demuiid. Krlli/ vs. iShrapficll, :^.C., 12 L.C.l\.,\).2l4: And it is not the !;nieuiit ol'dainiigcs claimed whieh determine-i the jurisdiction ul" the Cdint, hut the niiuual lease of the property. Barhivr vs. Vrnirr, C. C, tt L. C. .1., p. ^\'. 18. I5ut ill an action lor lease at common law, indepen- dently of the Lessor and Lcssia's Act, the .Superior Court ha» jurisdiction wliere tli;- r(!nt doi:s not exceed $200, if the sum sued fur t»e ul'tho niiioutit ntjiiiicd to bring an action in the Superior Court. Fisher ijj- «/. r.s-. Vaclion, S. C, (i L. C. 1.. p. 189. 19. In an action upder the 18 Vie. c. 108, [C. S. L. C, cap. -iO,] the defendeiiL is not bound to j)roceed between thf> tenth day of .Inly and the 30lh of August inclusive. Clair- mont c(. a/, vs. Dickson, S. C, 3 li. C. J., p. '255. 20. A lessor is garont of his tenant, in an action by a sotis locataire for repairs to the house leased, oven where there is a clause in the lease forbidding the tenant to sub-let without the consent of the lessor, if it appears that the lessor has taken the extra-premium of insurance caused by such sub-letting to a tavern-keeper. T/i^hergc vs. Ilnnf, S. C, 11 L. C. IL. p. 179. 21. Under the Lessor and Lessees' Act, Con. St. of L. C, cap. 4<0, the Court has no authority to rescind a lease made to the plaintiffs by the defendants, on account of a change in (he destination of the neighbouring property previous to the time when the plaintifl''s lease came into effect ; and that the action which was founded on alleged injury arising from the leasing of the adjoining premises for military bar- racks was premature being brought in l''ebvuary. whereas the plaiatiil's lease only commenced on the 1st of May, 1802. Crathr.ru Sral, vs. Les Sa!urs de St. Joseph dc rildlel- Dicu, S. C, 12 L. C. R., p. 497. 22. In an action of ejectment under the Lessor and Lessee's Act, for non-payment of rent, the Court cannot take cognizance of a demand for hire for the use of furniture leased by the same deed as the premises. Kelly vs. Shrap- 7i€ll, S. C, 13 L. C. 11., p. 214.. But in Viger mul Belliveau it was held in the Q. B., that the Court would take cogniz- L !•: S lo L 1 A 177 Lessor and Lessee : — aiice (»!' tho real ol' fiiiniiiiro iiccessory. 7 L. C. .1., )). 199. ieas^od Willi ii iiuuMr ;(s uii 23. An iictioii wout lie tigain.st iloli'U'laiiK r-'sitU-iit iu Lower Canada iiiidor (lie Lessor and Lt>-: Act to set a:-iile a lease ui' |tni|K'rty in 1 |>|" r Caiiada. Sf.'KU'f i\- a/. rs, Ftirtc- iS- a/., .<. C. 1 L. C. .].. p. ii 'ik 'I'lie |): ivik'ge ot llie lir.-^l lessnr stdisists aliliKULi,; nc lias not been diligent, in })roseenliiiii the ^ale ol' the iiiov i.diles lie has seized, an'! . 2;"). Rent cannot he leeovered hysnit lor preinise.v lea>ed IS Ii House of iil-fanie. tlarifli is. Ihtnd. ('. C. 7 L. ('. J., y. 127. " : — Vide Pkivii,e(;e. : — " PLEAniNc; iV Pkactice. Lkii'ER of Attorney — Vide. I'oavek oi Atiokm;y. LKirEKs Patent: -L The certilieate rotjiiin cl hy fi W in. I\ . e. 34', must be given by the attorney general, or in liis aiisenre l.iy the soUicitor-goneral. 'I'hcM-ertifieatc of a < Jiieen'senunsel is insnllicient. Bc/nuvier vs. Lfvrstjur. 1 Rev. de Leg. p. 18."). 2. Letters Patent lia- inventions i:ranfrd luid'T Her -Majesty's privy seal in ihiglund are oC no loree and eli(,ct in Canada. 'I'lie patentees have no other remedy than that civen l)y our I'rovineial Stiilnte. Aflcms rs. Pcil i\ uL, S.V., 1 L.C. R., p. 130, 3. Letters Patent may be anniilied otherwise tluui by scire /'(icias. .See Scire facias. 4. A party who Uas eilected an iminovoment in iire, engines, by a new combination ol'old parts, whereby resul's arc ol)taiued, is entitled lo take ont and maintain Letters Patent for his exclusive riclit. Miiir rs. Porif. i^. C. 2 L. 0. R., p. 305. ^. in an action lor mfringement ol letters patent for an invention, it is snUicient to set ont in the dt>elaratioii tlie. granting of the letters patent in f.ivor of plaiiitili, settiui"- out ulso the date and tenor thereof, withont alleging coni])lianeo Avith the forniiilities pointed ont l)y the Statute toontitb- llui plaintiff" to obtain the letters patent. Bcrnirr rs. lid/neuiif .f>. C, 8 L. C. R., p. 297. Also Brrnicr vs. limiahcmiu, S. C, 2 L. C. .7., p. 193. And in an action for infringement of. patent if it be proved that the article patented was in ]>ubhi: use or on sale in the province, with the consent ol' tlio patentee, at the time of the application for the patent, th« plaintiff cannot recover ; and a verdict of a jury in his liivor, will, under such circumstances be set aside and a new trial granted. Bernicr vs. Bcauchcmiii, S. C, 2 L. C. .r., p. 289. Conlirmed in appeal, 5 L. C. J., p. 29. And a patent will be declared null and of no avail, if it be not established that the patentee is the sole and only inventor of the thing patented, or if it be not established that such patentee is the, true and first inventor. Riidiie amlJoly,(.i. R., 12 L, C. R., p. 49. LiABiLrrv : — Vide Attornev. " Builder. " Damages. 12 « '». i„ *; i 178 L [ B to L 1 P: r ■ i i-i 1 liiyk, AS LiiiEi. : — IVrZc Criminal Inkokmation. « : — Legislativi: CnLNciL,. , " : — Trespass, LiBioE (Pleading) : — All that is required in a libel lor seruuiin's wages is to state the liiring, rate of wages, perlurmance of the service, detenniiiation of the contract, and the refusal of payment. T/tc Nficham, \^. 70, 8. V. A. R. Lici:nsi::--A license for a tiniljer limit under the sii>'natiirc of an ollicer styling himself" Surveyor of Crown timber licenses." dated lO'h July isr>!, is inoperative, inasmuch as uji to the Slh August, lSfil,"Tiie Collector of Crown timber duties.'' was the only officer authorized to issue such licenses. U\ s; ch licenses by the words " luis occu[)ie(l by squatters for three years exceptrtl," are inteuded township lauds as stated in the relurns of the sMrv(>ys of townshii)s, and not merely those portions of lots improved by such --'jiuitters. Hdl and Tliomp^oii . q. E., 3 L. C. R., p. 466. LlCiTATU)N' : — !. Au a^-tion rii Ucit.atifnt always contains an action en 2)art(tgc. And in such actious the parlies arc in the same ridativo positions to one another, each being at the same time plaiutifi' and defendant. And in such cases the cause uf action is the joint ownership and not the indivisibility of the property. So fi j)leu setting up that an action en partuge between the same parties for the same jn'operlies is still pendiiiti', will ho a good [ilea of iitispcuclence. Bosiccl/ vs. IJoijd et.c/.. S. C, 12 L. C. R., )). 4.1.7. II. DoKoiic amiiimicr docs not affect a mere undivided interest or share in. real [iroperty, where .nucIi property is sold by licitalion InrcU', th'"' eliect of the licitation being to con- vert the right I'f dower on the land to a claim on the moneys resulting i'roi:i Ih>?s;ilo of tlic fu'oj'ortj'-, and this even in the case of tiers acquercn)-. Denis vs. Crawford, tS. C. 7 L. C. .1., p. '251. " : — Vide An.ii DicATAiur. Lien : — 1. Effects upon whicli a defendant lia^i a lien, will not bo, delivered uj) out of bis possession, in an action of revendica- tion, unless the amount ol'liis claim !;'■ deposited in Court, in lieu of his ( Oi.cl;'. BeH vs. TTV^ot/^ S. C, 5 L. C. R., p. 491, and this though the pledgor, who had (he goods in his possession, be not the pa-nprietor. And under the statute 10 and 11 Vic. c. 10, sect. 4, [Con. Stats. C, cap, C)9, sects. 4, ^ and 6,] even although pledgee knew that tlie pledgor was not the proprietor, and that goods were pledged as security for a transaction between pledgor and pledgee, who is not maid fide, so long as he has no notice from the owner that tlie pledgor has no authority to pledge. 2. The lien is not extinguished by the pledgee transfer- ring to a third party negotiable notes which he had fallen from pledgor, if the notes come back into pleilgee's hands being unpaid at maturity. Clark vs. Lomer and Clark etal., S. C, 4 L. C. .T., p. 30, Confirmed in Appeal. Johnson et al,, (plaintiff's par reprise d''instancc,) and Lomer, 6 L. C. J., p. 77. 3. A carriage-builder who had the safe-keeping of a car- riage, has a lien upon it until he is paid for his keeping of it. Byland vs. Giiigras, 3 Rev. de L6g., p. 300. LIE 179 Lien : — 4. A merclmnt's clerk has no lien upon the goods of his employer for any sums of money which muy iiccriio and hecoine due to him after the institution of his action. Poutre vs. Poutre, S. C, 6 L. C. R., p. 463. 5. In the ease of Frechette vs. Gosselin ct al., and divers opposants, S. C, I L. C. l\., y. 14<5, it was held, that tho master of a ship has a privilege for the jiniount of his wages against such vessel, preferable to a party claiming under an ussigiimenthy way of mortgage. And material men preserve their privilege upon a ship or vessel for their wages and for materials furnished only so long as they retain ])ossession of such shi]). 6. A maritime lien is not inviolable, but may be lost by delay to enforce it, when 'he rights of other ))ersons have intervened. T/ir Ilaidee, V. A. C, 10 L. C. R., p. 101. 7. A mercantile house ; t Newry, directs a house at Quebec to contract for the building of a ship, for which they, the Newry house, would send out the rigging. The (Quebec house enters into a contract with some ship-l)uilders accord- ingly. The jNewry house then directs their corres}»ondent ut Liverpool to send out the rigging. He does so, and it having been delivered to the Queliec house, it was held, that the property in it was vested in the Newry house, und that the (Juobec House had a right to retain it against the Liverpool correspondent, on account of their lien on it for advances made to the builders and payment of custom house expenses, although previously to the delivery they had obtained the assignment of the ship to themselves iruiii the builders, and had registered it in the name of one of the partners in their house, llodger^nn ct al, and Reid, S. R., p. 412; also, 1 Knapp's Rep., p. 362. 8. Salvors have a right to retain the goods saved until the amount of the salvage be adjusted and tendered to them. The Royal William, p. 107, S. A. V. R. 9. Tn the civil and maritime law of England, no hypothe- cary lien exists, w^ithout actual possession, lor work done or supplies furnished in England to ships owned there. The Mary June, p. 267, S.V. A. R. ; 3 Rev. de Leg., p. 436. 10. Lien for pilotage attaches even after sale of vessel. The Premier, V. A. C, 6 L. C. R., p. 493. 11. A maritime lien does not include or require possession. The Hercyna, p. 275, S.V". A. R., in notes. Lien is defined by Lord Tcntcrden to mean a claim or privilege upon a thing, to be carried into effect by legal pro- cess, lb., p. 276. Where reasonable diligence is used and the proceedings are in good faith, the lien may be enforced against any one into whose possession the thing may come. lb. There seems to be no fixed limit to the duration of a mari- time lien. lb. It is not, however, indellible, but may be lost by negli- gence or delay, where the rights of third parties may be compromised, lb. -Vide Freight. - " Deliverv. 12* ll'N r-' ■ \ >. i 1; 1 ; . * i: !■ i V '' : ■ ! It m 1 ; ■ mI['. 180 LIE to L O A lEN : — Vide HoTELLIKR. ({ : — " Salvage. >( : — " Sheriff. « :— <' Ship. LiFE-RnNT: — A real estato cimnot be sold by the Shorifl', charged with a life-rent. Campagna vs. Hebert and Hehert, S. C, J L. C. R., p. 24-. Lights : — Lights (vues ciroites) which consist only of an opening between iin uj)per story extemling over a passage and the top of the fence which separates the passage from the neigh- bour's lot, arc illegal under the article 202 of the Custom. Robert vs. Danis, S. C, 11 L. C. R., p. 74. Lights (on Ships): — 1. The hoisting of a light in a river or harbouv at night is a pn -^aution imperiously demanded by prudence, and the omission cannot be considered otherwise than as it negligence ■pe'f se. The Mary Ca^npbel/, p. 22.5, in note. S. V. A. R. 2. The omi.ssion to have a light on board in a river or har- bour at night amounts to negligence per se. The D(ddia, p. 242, S.V.A.R. 3. A vessel at anchor in the stream of a navigable river must have, at night, a light hoisted to mark her positi(>ii. The Miramichi, p. 240, S.V. A. R. 4. Damages given for a collision, the night at the time being reasonably clear, and sufficiently so for lights to be seen at a moderate distance. The Niagara, p. 308, S.\\ A. R. Limitations: — 1. The English statute of limitations is not law in Canada. Butler vs. JSIacdonaU, 2 Rev. de Leg., p. 70 ; and never was so. Russell and Fisher, Q, B., 4 L. C. R., p. 237, and Langlois ct al. vs. Johnston, S. C, 4 L. C. R., p. 357. 2. The statute 10 & 11 V'ic, c. 11 [Con. Sts. L.C.,cap.67], has not a retroactive eflect. Brown vs. Giigy, 3 Rev. de Leg.. p. 469. . Russell and Fisher, Q. B., 4 L. C. R., p. 237. Lan- glois et al. vs. Jolbuston, S. C, 4 L. C. R., p. 3.")7. 3. The statute of limitations is a good plea to a debt con- tracted in London, without any reference, direct or indirect, to the law of another country. Hosan and Wilson, S. R., p. 145. 4. An action of trespass against a road surveyor who acted under a judgment of the Court of Quarter Sessions, for enter- ing the plaintift^'s close and destroying certain buildings, must 1)c brought within three months after the right of action accrued, a.s provided by the statute 36 Geo. III., c. 9, s. 76." And such action may be maintained against persons acting imder the orders of the road surveyor, who do not plead a justification. Camion vs. Larue et al., S. R., p. 338. " : — Vide Action. ^ u . — « Prescription. Litispendence : — Litispendence in a foreign state is no bar to an action instituted in this Province. Russel et al. vs. Field, S. Pi.., p. 558. " : — Vide Licitation. « : — " Pleading & Practice. Loan of Debentures : — Vide Privilege. * Repealetl by Municipal and Road Act*, U. Sis. L. C, cap. 24. LOD 181 ot law HI LoDS ET Ventes : — 1. The datio in soliitiim gives rise to lods et ventes. Giigij and Choiiinard, 1 L. C. II., p. 50. 2. A donation onerei/se jjives rise to /ods et vefifcs. LamoOte et al. vs. Tu/on dit Lesphance, Q. B., 1 L. C. J., p. 101. 3. The gift made, by way ol' reward, to a donee resignini>- a public trust, with a view of procuring such jiublic trust to Vic conferred upon the donor, is productive of /nds rt vnitex. If any difliculty arise as to the value of the othce, /orZ,rtain debts of the father, does not give rise to the right of lods et ventes. Drn2Jeiin et al. vs. Ca7npeau, iS. C, 6 L. C. R., p 86. 8. No lods are due on the resilialion of a deed of donation which liad not its perfect execution. Lamof.Iic et al. and Fontaine ditc Bieni-enu ct al., <>. B., 7 Ti. C. K., p. 49. But a deed of sale merely annulhibie, (itteint dhine nullite relative, produces lods et ventes. Lr Seminaire de Quebec, vs. Labelle and Labelle, 8. C, 4 L. C. .1 ., p. '290. 9. Lods are not (\m' o\\ the sale of real estate required for public use. Grant and. the Prinrij'x'l O/Jicers of Artillery, Q. B., I L. C. R.,p. 91. 10. It is lawful for a purchaser oi lands, if there be two different means of effecting liis jiurchase, to adopt tliat which is free from or less productive of seigniorial dues, provided the contract be serious and be made in good fixith. But the seignior may addui'c evidence to show that in reality there was a S'W/c paid, and on that s.uhe lods et ventes are due. Rolland and Lneon, Q. B., 5 L. C. R., p. 75. 11. And simulations of deeds may be presumed from the deeds themselves, when there is an evident object to injure n I 'I < I L O D to MAI ffii ||i|,i ; ^'f' . ■! '!p?! ?iSiW -I Til !l<« I. ■■ i, 1 I;" ■' ' ' ! _ ■ .' ■ ^ ■ i lik LoDS ET Ventes : — tliird i)arties, even though no one of the deeds takci, separately discloses the fact that it be simulated. li'imsau vs. GuilvieUre, S. C, L. R., p. 24. Thus frrud will be pre- sumed, and loda accorded where a party, owning a property en censive, and auother in tree and common soccage, sells the latter to B., who, on the same day, and before the same notary, exchanges it for the property en censive. The Siste/f of Chant// of the General Hospital and Primean, Q. B., 1 L. C. J., p. 200. The Superior Court had decided adversely to the claim of the plaintiff. 1 L. C. .T., p. 13. 12. The act of union or amalgamation of the Grand Trunk llailway, in so far as regards the payment of £75,000 to the St. Lawrence and Atlantic Pwaihvay Company, is a sale, and gives rise to lods et ventes upon that portion which on appraisement ])a.sses through a seigniory. And in appraising such lands, the buildings, fences, mils a)id other improvements nuist l)e taken into account. Kicrikoioski vs. The Grand Trunk R"ilway Company, (J. B., 10 L. C. II., p. 4.7. — Vide Lanaudure ct uL, vs. Johui, 2 ilev. de Leg. [». 304. — " Mainmorte. — •' Seigniorial Rights. Look-out: — 1. As to the necessity, in all cases, of a proper aiiii sufhcient look-out. Tlie Niati(ra — The Elizahelh, p. SOs, S. V. A. R. 2. The ship is elearly responsible for the fault of her look- out. The. Mary Banatyn-", p 'oi, S. V. A. R. Lost: — A horse lost and purchased imd fide in the usual course of trade, in a hotel yard iu Montreal, where horse dealers are in the habit of sc'iling daily a number of horse does not become the })roperty of the jmrchasor iis against the owuei who lost it. Hughes vs. Reed, S. C, 6 L. C. .L, p. 294. " : — Vide Sale. Lottery: — ,\ deed of sale in execution of a tirage an, sort or lolteiy is null. Ferguson et al., vs. Scott, 2 Rev. de L6g. p. 30.'). *' : — Vide Criminal Law. LovKRS : — VV'hen the rent is payable monthly, the owner can take an action of ejectment against his tenant if one monthly term remains unjiaid. Quintal vs. Novion, 5 L. C. J., p. 28. " : — Vide Lessor and Lessee. " : — " Presciuption. " : — " Saisie-Gagerie. Machine : — An aj)paratus for manufactiu'ing potash, consisting of . ov( lis, kettles, tul s, lVc., is nut a iij:iehine or engine within the meaning of the 4tli and r)th Vic. c, 26, sec. o, [C. S. C cap. 93, sect. IS,] the cutting, breaking or damaging of which is felonious. R. v. Dohcrty, 2 L. C. II., }). 2r)5. i\L\Grsi rate : — Vide Damagks. Mainmorte : — 1. The declaration of the King of France which requires a license in mortmain in certain cases, is rejiealed by the Provincial Statute 41 Geo. Ill, c. 17, so far as regards the Royal Institution for the advancement of learning. * Desrivieres vs. Richardson. S. R., ji. 218. Also, the Royal lnstitutio7i vs. Desrivieres, S. R., p. 224 in note. M A I 183 Mai.vmorti: : — '2. Mortmnin restrictions ii|)()ii llie uc([uisii.if)ii of real estates by inortiimiii cor | 'orations, were cuiised by tin; ac(|iiire(l l)r(>perl.y Ihcrrby btHMiuint^ inulieiiiiblo, not by the existence of till! corjjoraiioiis biting ])eri)etiiiil or eoiiliinioiis. Tliesf? restrictions applied to eorj)oratioiis ajijirei'ate, the clergy in general, r<'ligions l)o(lies, irateriiities. miuiiciiial frnilds, and others of like nature, wliich forni the cuihj-. Ifsi^nated as niorfmaiii corporations, l^cus dc mainmortc. .Modern civil corponstions, established lor coniim rein] and I railing purposes, as joint-stock or ineorijornti'd ei'tnpaiiies, i\^', eaniint be included in such class, \w\- do mortmain ri'str!c!io:is apply tc» theui. '\'\\'o or more civil corporations may uuile to Ibrm f)no iiu'orj oniled company, withont such nni'iu being in its. 'If a. sale, ( r equivalent thereto, and without subjecting the com- pany tims formed from the two, to the paymeiii of seigniorial or lendal dues. And the deed of ac'reeuienl tor union of tho St. Lawrence and Atlantic Fiailroad Company and the (irnnd Triiidv Railway Company of (,'anada, was, in law, only in the nature of preparatery articles of nnion, not in its(df a sale or eqnivalent thereto, and not iram^hitif ilc pro- p/itle, and in laAv could not and did not, by itself, establish the new eom[)any as a corporation. 3. The defendant is not, in law, a ni'atmain corporation, nor subject to mortmain restrictions, and does not, in law, hold the lands in question, in mortmain, as alleged in the phiintid's declar.ition. And llie defendant, tlie existing (irand Trunk Jlnilwav Company oi' Canada, was iucorjiorated by the I.'.th Vic. c. "o.':, v/henUio y.' iguiorial Act of 1854- Avas in existence, by wiiieh all Si ignierial dues were abolished, and which relieved tlie defendant's ac(pn'sitions from all seigniorial dues. The sums of money claimed in this cause are not for arrears ol' seigniorial dues' accrued to 1., the decla- ratory provisimi of that act ap[)li s. retrosi>ectively. tt) sucli aeqiiisitioiis, and relieves the defendants, as such i'vv/n cA main7iwrt.e,hom liability to the seigniorial indoiiniti'. elaimed by the plaintilffor such acquisition, made directly from other gens de mainmortc. 5. The undertaking of tluMirand Trunkllailway Company of Canada is a work oi punl c utility, including ih lein the realty acquired and in qiiesti.)ii in llii.> I'ase, and ili' refere i< not liable to the ladu et (•t'///e.v ciaimed by the ])laintid'. h'urz- knwsld rs. the irniiid Trunk Coi)iihiin/ 'if Canada, S. »'., 8 ]j. C. Pk., p. 3 ; 4 L. C. .)., p. Si.i. (;onnrm"d in Q. R., iii so (iir as the judgment estabiishes !li,>t the u- f iid mt is not a Com- pany in niaiivnortc, and reversed as iigards lods rt rmtea. Q. 13., 10 L. C. E-., )). 47. The eouii):ihy in (piestion i^ not created for the public utility— its charier is granted to private individuals, lb. Also opinion of /)/.(:;(llirrs to l)e made, that tlie jiprson had been didy electt'd nccordinir to usafro and law, i.s a siiiliciont and h^gal answer. Ex jiarte Tiinnf, '2 Wv.v. do Ia'^., p. S.?. I?iil ill the ease I'lx parte Rinu.t:, '.] Ilev. de L6i>'., p. 4S0, it won' 1 seem that the rovrvsr was held, 2. A writ oC maiidauiiis may ]ip ]»r()pcrly directed in ilie Mayor of a City Counoil alone, to icetiCy the miiiiites el' lii.' rrtinci], if the frrievanee to I)t> rcinedii-d was eaiisetl l>y iliv Mayor. Enhinstni vs. Rohihiilh. S. C, 7 L. C. \\., j). w'. M. And a writ of n;andaiuiis may issia^ addressed i.. a /'V//'>7V//i'r, to cause a public ofil-er lu !)o inslaliid i)i a liii>:c. (I'lHiininfr. V.\ j'lrte Dominu Rr;2i,i{i and La Fahriquc dc ia l*ninte avx Tremh/o, 2 Rev. de T.e;jj., p. b',^. I. A writ of niandamns will iiol lie to compel a Fahriy the Ordinance ilf) (.I'eo. HI., c. 33, to be advertised in a iiews]iaper called the •'<^)iiebec Ga/cette,'' Mhen it. is not shown that there is no otlier le. 17. Margvu.lier : — 1. Tlie nuirguiUUr en charge has alont; a right to receive moneys due to the Fabruiue. The appointment by the ancicns mar g ail lit )s ot' a procurcur fahricien is illefia! ; and the parly so a|»i)ointed AviU be ordered to abstain iVum exercising anv such dulios. TaiUvfer cs, Bclaiiger, S. C, I L. C. K., p, 322. 2. The notabtes have a rij^lit it) parlicii)ate in tiie election ol marguil'icrs. The iiolablcs are all the parishioners who ])ay tithe. And llu,' curt ;iud nuirgHillirrs may l)e com[>elled by mandamus to convoke meelintr-' ol' the nntahles for tlie election of nurguil/icrs. The return made by Ihe rurc and /,'iargiii//iers,ih\\l they odered to admit certitin | ersons to the nu'Clings M'lio were uokih/es by their position and coiulitii>u, excluding the generality oC the purishionev.s, is insuliicienl and illegai. A single writ ofmandanuis may issue lo deprive, two liuirguilliers of tlunr oflice and elect two others. Tt is not necessary laat the lirst writ of mandamus be served on the r,iarguil'/ier wliose election is contested; its smviee on tht? corporation is sufficient. The corporation after having made return that it could not obey the first writ, cannot, extra-judicially and without the permission of the Court, proceed to redress the urie\ance complained of. AV'heu the corporation has made a return, the writ of man- damus can only issue aOer the return has been declared dlegal and insufficient when rejected. No costs will be allowed to the petitioner lor a writ of mandamus. Ex parte Rvnouf, 1 llev. de L6g., p. 310. 3. The cure is not necessarily obliged to invite from the pulpit the old and ju'esent liiarguUliers and notahla. An advertisement in general terms that a meeting will be held is a sufficient invitation to those who claim to be electors. Ex parte Bind, 1 Rev. de L6g., p. 321, and so also Ex parte Rcnoiif, ] Rev. de Leg., p. 310. i. According to the 23 ^'ic. c fi7, sect. 1,* a regular j)ro- iiominate as candidate a person to fill posal is required to the office of ehur».-li\\\,riicii 12 L. C. R., p. 4-70. — Vide Fabrkjue. — " iVIanuanus. — " Pew. Bclaiiger et al., vs. Cyr, S. C. Marine Ix.sijraiNce : — 1. ()a a demand lor indemnity under a policy of insurance against the perils of the sea, it is necessary to jirove that the damage clai;ned for was caused by one of the perils insured against. The mere fact that the goods were damaged to a trifling extent by sea -water, does not con- stitute such proof. 2, A survey of goods alleged to he damaged, without notice to the underwriter, followed by a sale at 9 A. M.. of * C. S. L. C, cap. 18, sect. 45, ss. 4. But this section iloes not sustain tho judgineat. I 186 .M A 11 « jf)| l^ .iffl i '' "/IfK ' ' 1' ' ^1 i'^i t i i|ii fl: i Mauine iNsunANCE : — tlio second dny, tlio jronds hfin-; Ih>iij:;1i1 in Ity tlio insurer. is no prouluf the lunounl of lo,s.s sulii'r'.'il. 'J'/ie Sun Mutual lumiriince Couipatnf vs. Blassnn ct til., S. C, 4- L. C. J., 'i.'J. 3. In niurino insuriinci! tin ciidnrsiMiuMil upon lui upcMi ]iolicy of a curgu li.r insuriua'c, is iiu'ujuplrti' if the- niimu ot' tiie vi's.sol hy wliich such cari^o is shipp d is in bhuik ; hui it is jierlectcd hy a nntico, to the insurers of the name oi'llii! vessel, whether fliey fill up the Ijlniil: or not. *' Class B. 1.'' without (iny refirenco to ;i si)Cfi,"i classilication will In- construed, on a poii.-y of insurant^e, :is nieaniu!:- tin- class of vcsseLs recogiiiz'jd hy UKiriuci-, as class 1). 1, iftherc be any suidi chtss. The per.Sdii whi> insures as ii^enf li.>r anotln'r, cannot sii.' for indemnity in his own name ;;s iirincipal. and a consi^ncf under a policy in his own name can only itiover (i>r lu«- instirance agent. 'I'll'' pos ol proprietdrship. Cusacl: r<, J'hr Mutua/ Li.sio'dH:'; Covipany fif Jiiijfn/o, S. ( '.. ti I,. ( '. .1 ., p. !)7. J\l.\ui\F,KS : — 1. ll'a manner he disahird in the j>eili>rni,uice nl" hi.< duty, he is 'o he cured at the e.NpiMise (if the ship; hut li the injury which he sustained he produced hy drunkenness ^m his part, he mu-t himself h-nr the ivinse(pienees (.)t'his mwu misixindnel. Thr A//un/.'r, p. I",'.'), S. A'. A. 1*.. Abandoninii' seamen, disahhu! in the service of the ■ pressure of necessity, arising out of the situation of the parti -s. //>. •i. Seamen are regarded as essentially under tutelage, and every dealing wiih Micni personally by the adverse party, in respect to their suits, is scrutinized by the Court with great distrust. The Thetis, p. 36.5, S. V. A. R. Negotiations with them, even before suit is brought, more to the satisfaction of the Court -v^-hen entrusted io theu proctors, lb. MA R 187 Mariners : — A sfariiiin is entitled to his costs as well ns his \vane^,arid u scttleiiuMil after suit jjiought, ohlip;iny tin; master as rciiuired hy the (general iMendiaiit ycaineu's Act (7 and 8 Vie. c. ll'2,s. 2,) cannot he enl'nri'ed. Tlir Ladi/ Sado//, p. 2t)0, .S. V. A. l\. 2. A iironiise made hy the master, at an intermediate port on the voyagf, to give an additional sum, over and ahove the stipuliited waii'es in the artiehs, is void for want I'l con- sideration. Tlic Lf)c/,-iroo(ls, p. 12ii, S. V. A. II. 3. Clianire. of owners, hy the sale of the ship at a Ihitish port, does not determine a sulisi.stin;>' eontraet of tie- seamen, ■ .'.d entitle them to \vaperfy oi tlie uuimniiiiity, may uiiil is hoiiiul to iniikt- mi iiivciitoiy, uuil nil actiuii to that eiii'ct in uiui«>ecs.sar\ . Aiui in ni action liy tlio widow lor !i juirta^^r ol' \.\\v rnmiiiKnaute, iIm- minors issiic of the iiiiirri:i»(c, niiisf lie rciircscntt'd l»y ;i tiifnr (id hue spcciiilly ii|)|ioiiitoL. «,). M., \\ I.. C. I{., p. 101. •J. A married woiiuim i'mh only oblige licrsolf wifli Ikt Inislmiid us cnmnninr en hivns, iind a siirrty^liip entered int(» liy w married woman jointly witli lier InisliMiul is null and void under tint provisions of flie ith \'ic. c. MO, soe, 3(). [Con. St. L. C, cap. .'H, sec. f)!).] .Ukloin is. Duf'/esuc (V 'i/.Jl H.. 'A L. C. H., !•• 1H9. 3. A wife A(7>^^/fr rA- /y/tf/z.v cannot ohlipe herself u itliout lier linsbaml and an obligation so contracted is null anil void. A married woman can only oblige iierself with her linsbmid IIS w?;/;rtJi!//er« />»'•;/,« niidertlie M\ \'ic. e. HO, sec. .36. JJ'-rtnn/i/ IS, Siiindnur \ Ldinic, 1 Ilev do Leg., [). XV,i, And so wlieic a wile se]uireeileliicns makes a note jointly with hi-r husband in order to be his security, thu note is null as regartls lier. Shear ef vs. Compain ij- u.c.,S, (l, f) L. C .!., p. 4-7. AikI an obligation entered into by u married woman separec dt (liens, lor a debt lUw. by her luisbnnd, vnll be dcelmed unii, at the instance of a third |)arty in the cause ; but u ronuncK- cement de preme par i-crit is reciuired. i'uchs vs. T(dl>ol '.nid LiuiviiUc, iS. C, 13 L. C. R., p. H)*. 1. "Where groceries were bought by a. husiiaiul, separated as to properly from his wife, a joint and several jnilgnicnt will be rendered tigainst hu.sband and wife, on proof thai tlio goods were consumed in the common domicih?, sucii goods being necessaries. St. Amand <]• (d. vs. liiniirett ^- a/.. S. C, 13 L. C. R., p. Q3^, and 7 L. C. J., p. 32. Also Paqncttc vs. Lenui^cs i\- vir, S. C, 7 L. V. .F., p. 30. And a note giv^n by her and her husband for necessaries will be valid, Clmlit vs. Diqd'ssis tj- a/., S. C, 6 L. C. R., p. 81. And this without any proof of express authority to her to sign the same, l■^! L. C. R., p. 303. 5. And where a wife sqiarec de hivns is sued on two no- tarial obligations in which she acknowledges herself per- sonally indebted to tiie plaintiff, she can j)lead and prove liy verbal testimony, that the statement of personal indebtednes.s contained in the obligations is false, and that on the eoii- trary it was tlie husband who was really indebted and that she was merely his security, on the ground that such con- tracts are in fraud of the law. Mercile vs. Fourniei- &• a/., S. C, '2 L. C. .J., p. 205. Confirmed in appeal, 9 L. C. R., pp. 300 and St?, and -t L. C. J., p. f>l. And a married woman can- not validly renounce her hypothec ou the lands of her hus- band in favor of his creditors, for the payment of a rente liagire created by her marriage contract, to stand in place of dower. Russell vs. Foumier a?id Rivet, S. C, 3 L. C, .!., p. 324. 6. But in Boudria Sf vir. vs. McLean, it was held, — that although a married woman could only oblige herself with • her husband, as commune en Mens, in virtue of the 4 Vic, c. 30, sec. 36 [Con. Sts. L. C, c. 37, sec. 55], yet she can re- I I f ill :i ',i! ' ' 1. ■ ' ' i i ^ ^ f SlLrtyi^^;. vk 190 M A R Married Women : — noimoc ti» the exercise of her hypothecary riglils for rrprtxr.^ 7nntrimoniu/cs on the estate of her liiishaiid which luul been alienated, ii. U., 6 L. C. J., j). (if) ; also 12 L. C. U., p 13"). But a wile separee de bicus from her hushaiul cannot bind her real estate tor a debt chie by her liiisband, tor the jniyiuent of which she coidd not bind herself personally. Little and Di^antud, Q. IJ., VZ L. C. R., p. I7S. 7. An action to recover the price of goods sold to a married woman, svparvcde Liens, will not l)e maintained, withont pruof that the liii,sl)and expressly atithorized the purchase by his wife, liciijamiii \arcc dc biffis by her contract of marriane may sue for the preservation of her personal estate without the assistance or authority of her husband. Cart/ vs. Ri/huul, S. C, 3 L. C. R., p. 132. But a married woman amimmtf en hicns cannot sue without tlie authority of her husband, althougli /iia/cl/a/id.rpidjli(ji(r. Lynch vs. Pwdc, S.C., li. R., p. ♦)•). 9. A married wi)man, although separated as to property and liaving- tlu^ administration of her hiens, cannot validly atlcct or hypothecate her property without the spt'cial autho- rity of her husband. Dnw. Jlerfcl de liouville i\- al. vs. Tlw Hank of the MidLmd Distn'ct, 1 lU-v. de Liig., p. 406. 10. Anil a motion Ibr a ta^lc cnchere against a woman separer dc hiens, adjudicatairc, will be rejected, unless the husband have notice of 'he motion. Clonthier is. Cloufh/ct , y. C, 10 L. C. 11., p. If)? ; and so also Jo/dain and Ladriirr, Q. B., 12 L. r. R., ]). 33. 1 1. A rul(^ for ainlraintc par corps against a married womnu siparee dc //icns, is nidi, iiidess serveil ujiou her husband. McDonald vs. McLean, S. C, 11 L. C. R., p. C. 12. 'Die e.\pre?is ;uithorily of the husband to his wife, sqniree dc hiens, to become bound as his surety, is sufliciently prov(>d by a notarial deed signed by them, in the beginning of which the wife appt^ars with other creditors of her hus- band, and is declared to be aa/orisrc en Justice and otherwise. si)eeially authorized by her hiisbiind, testified by his signature thorcto, "as parly of the (iist part,'' and also a[ip(nus with another as surety {ox her liiisbaiid and as ii party >.)[ iXw fourth jyirt. And this although no words of authorization are con- tained in that pari of the iXi^vd where they appear, or where she binds herscli' as such surely. Kx parte Joseph, S. C. T) L. C. R., p. 320. And also where the husband being present and signing the deed, the notary expri'.sses the anthorixation as though it wert> he who authorizes, the authorization will l)e considered sutlicient. Melrissi' tj- al. and Brault, CJ. B., 4 L. C. .1., p. (iO ; and 10 L. C. R., p. 1.^7. 13. A married woman, living abroad, whose husband and she are both natives of Canada, needs the authorization of lier husband to convey land in Lower Canada, although the deed be sullieient according to the laws of her then domicile. •Such a d(Vil, without the authorization of the husbatul, is of no ellect liere. Laviolette and Martin, Q. B., 5 L. C. J., p. 211 ; also 11 L. C. R., p. 2r)4..* * The Court wu.s of opinion tluit the fnci of llie IiiikIhuuI iind wi(e twiiig CanadianH di!^., p. 'JSS ; also j\lef?-isse and BratiU, ( >. H., 4 L. C J., ji. tiO, where jt wns also held, (lint the hypotiico which f^Msirsintees tiie pay- nient of ii dotiairt pn'/it is a nioveuMe riirlii thut the niiiior, env.incipiiled by iiuirriiige, may aliiMiate, with tlit> aiithon/.a- tioii ol iur liiisbaMd. 15. A married woman, separated as to property (Voiu her husband by |iidgnienl, may continue the sunn' trade as Iut hnsbiind Ibrmcrly carried on, he actin^j, as Ihm' ajjcnt, il' there be no Iraud. dillncr iS- vir. ts, (I'nrrir, S. C, 1*2 L. (". K.. p, 454.. •♦ : — Vide /\ssi(;nmkn r. *' : — '' llvpoTMKiii r,, " : — " ritoMissouv iS'i)ri;. Masons: — Vide Bvu.vf.r. MAsrKii AND Skuvant:-- 1. A S(M"vant refnsinc' to ob(»y a lawlnl order ol'liis master and iliseharjieil in t'i>nseijnence,caii only reot»ver wa^es to date oC discharge, notwitlisttindinu- [irool'ol previous g«)oil eoiidiicl. llds/ic Ls. Mor/and. S, ('., 'J L, (', .?., p. 'J77 ; also C/iiir/ionncd?/ vs. Bciijaniin, C. (',, '2 \i. C. .1., p. \\).\. And in an action liir salary on the grounds (>' wrougihl dis- missal, where (KMiMidan; |)!eads that, plainti has jjeen giiiltv of disobedience of <'rders and prevarication and d< liilcation in his accounts, thongli neither charges be proved, \ct, if llie Court liiinks that there has been a manifest in-glei-l of duty and errors and irn-gnlarities in ]ilaiiitill'"s itccounls, his dis- charge will be held lo be justiliubU' and he will not be entitled to wages beyond the date ol' dismissal. ii t/>s/rr cs, T/ic (.if'tf/d Tniiik Jir tlie recovery oi' wages bya servant against his mast(>r,the lattercannot be examined as a witness litr tiie j)urposc of proving alleged acts of inso- h'nce and neglig(>nee on the part of the Ibrmer — that the statement of the master, under oath, must be limited to a proof ot the terms of engagement ami wages paid, or advances of money or value made to the domestic. H. Inder the Act 12 \ ic, c. :■");">, sec. '.i [Con. Stats. L. C, cap. 27, sec. 2], to punisli servants, &;c., lor desertion, a .Ins- tice of the IVace has no jurisdiction excei>t in cases where there is a contract. J']x parte Rose, !S. C, 3 L. C. 11., p. 49r>. — Vide IScnooi, CIommissionkus. .— " 1'r1VII,EC;E» CoMMt'NICATION, Master of Ship: — 1. Tlie master of a ship is not liable for damages done by his ship to jilaintill's property whilst sailing out of the port of Cinebuc under the management of a branch pilot, taken on board under the provisions of the 12 Vic, c. IH, sec. 53. Lampson vs. Smith, S. C, 8 L. C. R., p. 193. Con- firmed in Q. 13., 9 L. C. R., \). 160, whore it was also held « 192 M A S to M A T Masi j;r of Ship : — tlmt the presence oltlie pilo», on board in charge, uml conse- quent release, may be invoked imtler the general issue. 2. The Provincial Statute, 12 Vic. c. ll^, rentiers it com- > pulsory to take pilots (i>r vessels navigating the St.Lawrcncf^ between Quebec anil i\h)ntreal ; eonseiiueiilly the juiister is not liable for damages dune to a wharf by a vessel in charge of a pilot. 'I'he fact ol a cijHision in siieli a cii.si' \^ jirhiui facie evidence that it was cceasitined.hy the fault of the pilu*. The Harbour Commisaioncrs of Montreal rs. (rronge, L. C K .. p. 3. But this case was reversed in appeal, when- it waN held that the uiaster, iu gcniera!, under the umritinu) law, :jn the agent (institor ct propose) of the owners is liable ; and that he is, by the 20lh sec. uf the IS Vie., c. l^.'i, logcfji,., Avith all other ship masters, e.\[)ressly declaretl to be liabl'' to the appellants for injiU'V done to the wharves umler thei charge. Q. B.. 10 L. C. li., p. 2.o9. 3. Master admitted as a witne.ss iu a case of [)ilotage. '/'//• So^Ma, p. 96, S. V. A. R. •}•. A promise made by the master, at an intermediate ))ov on the voyage, to give an additional siun over anduljove th" stipulated wages in the articles, is void for want of consider ation. The Lnckiccods, p. 1"2.3, S V'. A. K. f). Upon the death of the nntster durini>- the voyage tli' mate succeeds him as ha-rcs jwccssarii/s. Thr lininsn'icl, p 139, S.V. A. Pv. t). Possession of a ship awarded to tiie nia.'iter a])pouited by the owner, to the exclusion of the master named by thf shippers of the cargo. The Mary and Dorothy, p. 187, S. V A. R. By the 17 & 18 Vic, c. 104, s. 240, power is given to any Court having Admiralty juri.sdiction in any of ller Majesty's dominions to remove the master of any ship, being within th" jurisdiction of such Court, and to ap[toint a new master \v his stead, in certain case, lb., p. 189. 7. The master of a merchant vessel may apply personal chastisement to the crew whilst nt sea ; the master thereby assuming to himself the responsibility which belongs to the. })unishment being necessary for the due maintenance oi subordination and disciiiline, and that it was applied witli becoming moderation. Th.c Coldstream, p. 386, S.V. A. R. * : — Vide Admiralty ; EviuiiNGio ; .FLRisniCTioN ; P.\tro.ne ; Passenger; Personal Damage; Seamen; 'f orts ; Admi RALTv ; Witness. M.vTE : — 1. The mate of a vessel is chargeable for the value of articles lost by his inattention and carelessness, and the •imuunt may be deducted from his wages. The Vajiineau, p. 94. S, v. A. R. A chief mate suing for wages in the Court of Admiralty i^ bound to show that he has discharged the duties of that situ- ation with fidelity to his employers, lb., in note. Amongst the most important of the duties of a mate are a due vigilance, care and attention to preserve the cargo. Ih., m note, p. 95. 2. Where a second mate is raised to the rank of a chief mate by the master during the voyage, he may be reduced '■'■ MAT to M E R 193 Mate : — to his old rank by tli'j master for iiieonipetciicy, ;uhI thero- npon the oriciiial contract will revive. T/ic Li/dia )>. 13(J. iS.V. A.R. 3. Death of the master and the snl)stitiition o\' the mate in his ]»lace does not o])erate as a dist'liar^i; oi'lln' .^Piuiien. The JSnoiswick, p. 139, S. V. A. 11. Jjy the niarilinio law, upon the ilealh of the nir.f^tcr daring the voytige the matt; succeeds as Jiarcs iicccssarlus. J't. .Materia I- Men: — Persons furnishing supplies to ships in this i-oiuitry, technically called material men, have not a lien u|i(iii the ship lor the amount of their supplies, and the fniir! Ims no jurisdiction to enforce demands of this nature. Thr Marif Ja/ic, p. 'ilw, ^. V. A. U. Have no lien upon British shii>s without actual possession. J/,., p. 270. A vessel huilt and registered in a Hritish piissessioii is not a " fi-jreign sea-gniiig ve.-sel "' v.-iliiin tin? [ii'dvisions ol'llii. 3rd and 41 h Vic, c. if'). J/,., p. 212. '• : — Vide Privilege. Matiumomai, Pvights : — Vide Anur/rEUY, Measurkment: — A cargo of wheat, ihr au asiir mim lit oi' V\iiich is commenced in the presence d' b. ih c:trrier ami euiisiguce, or their re|ireseii1atives, may lie coatimuil in the absence of either [larty. Symc tt nL. is. Janes ct c/., c?. C, 2 L. C. J,, p. 1(59. cre of Damages : — Vide Damages. vis OF the Legislature : — 1. The privilege I'nnu arrest of members of the Legislature, upuu civil process, does not attach to memljer.s of the Canadian Legishiturc by virtue of any law or usage. It docs not aHaeh as a legal incident to the constitution of the Legislature, or liy analogy l)et\veen it and tlie Parliament of Great Britain ; it only attaches on the ground of necessity, and not beyond it. Cuvillicr et al. vs. MuHio, S. C, 4 L. C. R., p. 14(). 2. On a motion for a writ of hubcas corpus to produce the body of a person in custody under a warrant from three members of the Executive Coimcil, for treasonable practices, founded upon his privilege as a member of the I'rovincial Parliament, two papers, purporting to be two indentures of election, produced in support of tlie mo'.ion,are not suHicient evidence of his being such member to entitle him to the benefit of the writ. And a member of a Parliament held at Quebec, the place of the member's residence, arrested eighteen davs after its dissolution, for treasonable practices, and being elected a member of a new Parliament while still in confinement, is not entitled to privilege from such arrest by reason of his election to either Parliament. Ex parte JJedanl, S. R., p. 1. Medical Attendance : — Vide Prescription, Merchant's Clerk: — Vide Lien. Merchant Shipping Act, 1854: — 1. Rule as to ships meeting each other, in 296th section, cited. The Inga, p. 340, JS.V. A.R. 2. Construction of the Act, as to agreements to be made with seamen. The Varuiui, p. 357, S. V. A. R. 13 '■% < I I III If' III 194 M E R to i\i r N -fl \ it 1 '1 ' i| li rl ji v 9 H -^^k li. f 4' , iMk. Merchant Shipping Act, 1865 : — 3. In an action against tlie owners of a sea-going ship for loss of jewellery, forming part of the luggage of a passenger, a plea (based on the 503rd clause of the Merchant Shipping Act), alleging that the articles lost were gold, silver, diamonds, &c., Src, that the loss happened without the privity or fault of the owner, and by reason of robbery, embezzlement, Sec, and that the passenger not baring inserted in the bill of lading or otherwise disclosed in writing, the true nature and value of such articles, iVc, the owners were not lialjlc, will be dismissed on denuurer. McDougall vs. Allan ct al., f<. C, 6 L. C. J., p. 233. Merger : — Where there has been a recovery in the Trinity House, the original consideration is merged in the judgment o/ the Trinity House. The ritahe, p. 59, S. V. A." U. Military Equipment: — Vi':c Execution. MiLiTiAMEi«T : — Vide Assignment of Pension. Mill : — Vnlc Banality. Mill-Dam :— Under the 19 and 20 Vic, c. 104., [C. Sts. L C, c. 51.] a. proprietor h;is no light to erect across ;i walor-course a dam abutting on llie land of the oppijsite ])ro])rietor : and if so erected, it will be demolisheil at llie insUt(io(> ol' the latter. Joly va. Guixnoii, S. C, 9 L. C. H., p. Hi(J. Minor : — 1. A miimr of the full age of twenty years can bcfjueath jiorsonal jiropcrty Id a tutor. J)u7orher ct iV., is Bcdiihicn ft al.f S. 11., p. 307. Ibit a minor of twenty years cannot dis- j)Ose of bis immoveable propertv by \\ill. Lonitigcr a/iil Boudreaif ct uL, (>. B., 9 L. C. R.^ j). 385. 2. A minor cannot be sued in bis own name fiM- neces- saries for which he is liable, the actio)i nuist be broni^ht against bis liittir, Co'tpcr vs. McDuicKdl, S. C, 1. L. C. 11.. )). 224. But ill TIdlaudcau vs. Ma/igan, !^. C, 4. L. C J., p. 14<6, a dilierent rule was adojUed ; and where a writ oi summons is dated previous to, but is served after the majority of the defendant, the action must be dismissed on cxceptiou A la forme. ClmHfuux vs. Tlioin dit lloch, S. C, 9 L. C. R., p. 71. Also 2 L. C. J., p. 187. 3. A father cannot sue for bis minor child as bis natural tutor, nor maintain his own action, if coui)icd to that of bis .son, as such natural tutor'. Petit vs. B'.clicite, S. C, 2 L. C. R., p. 3G7. And in a case of Fletcher vs. Gatignan and Gatignan, S. C, 1 L. C. J., p. 100, it was lield that minors can only be rc];resented in legal jjroceedings by a tutor appointed en justice, and an o])positiou tiled by a parent .styling himself merely the natural or legitimate tutor of his children, will be dismissed. 4i. A minor may [)lcacl by an exception ■perem'pioirc en droit, that he is not assisted by a tutor. Cnttiip vs. Middleviiss, S. C, 5. L. C. .T., p. 48. 5. A minor marchaiid can be sued and condemned for debts contracted in the transaction of his business, without its being necessary that a tutor should be appointed to him, .such minor being with resj)ect to such transactions reputed of full age. Daiiais and G6ti, Q. B., 5 L. C. R., p. 193. 6. And a minor may be sued for his board in his own name, where contracted for as a trader and in the course of ■r M I N to MOO 195 Minor : — his business. Browning vs. Gale, S. C, 6 L. C. J., p. 251 ; also, 12 L. C. E., p. 292. And for such debt he may be arrested under a capias, lb. 7. And a married minor may bring an action for wages for an amount exceeding $25. Ryan vs. Minoque, S. C, 7 L. C, J., p. 127. 8. An emancipated minor may validly alienate his move- ables. Metrisse et al., and Brault, Q. B., 4. L. C. .1., p. 60. -Vide Donation. - " Marriage. - ** PtEs Judicata. Minority : — No action is maintainable against a ])erson for a promise made to pay a commercial de})t, cuiitnictcd while a minor, unless such promise be in wi iting. Mann vs. Wilson, S. C, 3 L. C. .1., p. 337. " : — Vide PRtsciuPTJON. Minute :- The Stntutc, cop. 92, see. L6, Con. .^ts. C, does not mnke it an oflence to steal an nutheiitic ciipy t)f Jui act or deed jiasscd belbre a notary. The Queen and JMrG'in/iis, Q. B., Crown side, 7 L. C. J.", p. 311. " ; — Vide Nota u v . Misconduct; — 1. in a suit by a seaman for wages, service and good conduct are iiresunied till disproved. Tlie Aanes. p. 56, S.V. A. R. Defence, proMuded on misconduct of seaman, must be spe- cially pleaded, with jToper spccilicutiun of the acts thereof. lb. 2. In an action fipiinst the niasltr for iiillicting bodily correction ujion an ollending mariner, a justiiicution, on the ground of mulinous, disobedient and disorderly behaviour, oustained. The O/dstream, p. 386, S. V. A. R, Misfeasance :—Vide Trespass. Misnomer: — 1. A plaintifl' is obliged to tell his iiaine correctly to defendant. Paradis vs. Latnere, f*. C, L. E., p. 8J. 2. "Louis" in place of "Lewis" is no misnomer; nor "Tustras" for "Jontras," vide Caiias; nor " Brackmore " for " Blackmore," vide CoNFiRiMATioN of Title. " : — Vide Exception. Mitoyen: — Vide Mur Mitoven. Monet had and Received: — Vide Fees. Moneys : — 1. Moneys levied under execution must be distributed by the ordinary report of distribution, although only one oppo- sant file a claim, unless all the ])arties concerned consent to ir'distribution by motion. Mead vs. Reipert et al. and Ron- ihillier, S. C, 1 L. C. J., p. 177. 2. An intervenijig j)arty must give notice to all the parties in the cause of his motion for moneys under a judgment in his favor. Gillespie et al. vs. S])/^^:^ et al. ; and McGill a?id Hutchinson, S. C, 6 L. C. J., p. 25. Montreal : — Vide Damages. Mooring : — A vessel wdiich moors alongside of another at a wharf or elsewhere, becomes responsible to the other for all injuries, resulting from her proximity, which human skill or preven- tion could have guarded against. The Neiv York Packet, p. 329, iu note, S. V. A. R. 13 • 196 M O T to M Tr N |ffl|. hs'l ' y-i If Ji Motion: — Two coses will not be united on motidn merely liocnn.sc the matters in contest in both cnses are identical. Simani vs. Pcrmu/f. n7id Pirran/t vs. Simard, S. C, 1 L.C. J., i).24f'. " :— Vide Attachment. Motive : — Vide Warranty. Moveables; — The mere placing a \)n\)vr machine in a mill does not make it an inunov'eal)le, so long- as it can In- rt'nioV(cl with- out injury to itselC or to the mill. The Union Iiu,ihli?i^ Society vs. Russell and Godard, S. C, 7 L. C. 11., p. 374-. 2. To complete sale of machinery, as against third parti«>. there must be a dcjylacetnenl. Ash vL al. vs. Willett ami Seymour et al., S. C, 4 L. C. J., p. 301. 3. In actions respecting moveables, each party has a right to go into the (juestion of pr(>pcrtv. Herbert and Fennell . Q. B., 7 L. C. J., p. 302 ; and 13 L.C. R., p. 385. '!•. Whore A., B. «.V Co. agreed to tan a (jiiantity of hido:^. the property of C.,D.«.V Co., and to deliver the leather, whir, tanned, to the latter, who were to have the conclusive right of sale tlu'reof, on the understanding that the former was tu be entithnl to a certain share of the profits arising from the sale of the leather by the latter, and instead \d{ so delivering the leather, wher. tanned, to C, D. k, Co., one of the mem- bers of the firm of A., B. »k Co., without the knowledge, even of his partner, conveyed the leather into a foreign state and sold the same for his own benefit, assuming at the sami* time a fictitious name, — that such an act was not a zo/, as understood by the law of Lower Canada. That, apart from any question of zo/. A., B. !k. Co. had no right to revcndicale such leather in the liands of a third party in good faith, who had purchased the same for a valuable consideration. The absence of the usual stamps of weight and inspection on such goods, coming from a foreign market, and that the leather was, in the main, unrolled instead of rolled; and thai, the price paid was low, at a time when leather was particu- larly scarce, is not sufficient evidence of bad faith to justify revendication of the goods by the party claiming them, Fawcett et al. rs, Thompson et al , (.}. B., 4 L. C. J., p, 234'. " : — FwZe Possession. Moveable Estate; — Vide Wills. Municipal Act : — 1. Under the municipal act of 1860, 23 Vic, c. 41, there is an appeal from th.e conviction of n Magistrate to the Circuit Court. The Trustees of the Montreal ^urn2nkc Roads and Bernard, C. C, 4 L. C. .T,, p. 326. 2. A Municipal Councillor cannot be compelled to pay a jtenalty under 45th and 62nd clauses of the Municipal Act of I860, in consequence of a vote given at a meeting of Council. Soidigny vs. Vezino, C. C, 6 L. C. .T., p. 41. 3. Under sec. 42, par. 3 of the municipal act, a winter road cannot be laid out through a field fenced with rough boards, against the will of the proprietor. Lavoie vs. Gravel, S. C, 6 L. C. J., p. 113. ,T 4. The inspector of a local municipality has no right to '^ I sue in his own name, to recover the penalty incurred by a habitant a proprietor of the municipality who neglects to keep his front road in order, under the C. Sts. of L. C. cap. MUN 197 ., c. 4-1, to the Roads ight to [ by a ects to C. cap. .AIuNiciPAi. Act: — 24, sect. -iS, par. 6. Such action should be brought by the Inspector in the name of the municipality. Dio?i vs. MarriSf S. C, 6L. C. J.,p. 200. f). The making ami maintaining of a street is not a "county work," within the meaning of the 2ncl sub-sect, of sect. 39 of the act of 1855, but a local-work. G'. T. Railroad Compafty and Cor2^matio7i of Levis, (J. B., 1 1 L. C. R., p. 57. 6. Local councils cannot imiiosc a s])ecial tax for the purcliase of a lire engine, under C. S. L. C, cap. 24-. Lan- glois vs. The Corjmation of the Parish of St, Rock ct al., S. C, 13 L. C. R.,p. 317. 7. All taxes must be imposed rateably on al! tlir iuliabi- . tants of a municipality, and nut on a portion of them only. ih. 8 The actiun brought by ;i Municipal Coimcil must be brought, not in its own name, bi.t in the name of the cor- poration it rcjirc'sents. Le I\Iesioirr cjid the jSlunicipnl Coimcil of the Township of Chester West, Q. R., 12 L. C. R., p. 314.. 9. In the case t>f a sale of immoveables uiubr the Muni- cipal Act of 1855, for taxes due to a .'Seliool IMunieipality by a person other than tlie proprietor in possession of such immoveable.s, such proprietor disturbed in his possession by the |.urchaser may Ijriiig an action e7i covqilaintc against such purchaser, without the jiecessity of, in the first place, procuring the resiliation of the deed of sale. La Curporcition du Comi.e d'Yavmska i\ Rhvuinnr, C^. 13., 12 L. C. R., p. 4SS. 10. A municiitality is only boiuid by the acts of a council in so far as they are legal. Lerlerc vs. The Corpniatian of Pointe Claire, ^. C, 7 L. C. .1., j). 81. A special Superintendant is a IMnnicii)al officer. 1/t. Tavern-keepers aro ineligible as such .'^upcrintendant, and also to fill any Alunicipal Office. Ih. Municipal Councillors :—-l. When a vacancy occurs in a munici- pal council, :aid the municiiialily fails to fill it up at the first meeting of Council, after the expiration of three months from the occurrence of the vacancy, and the (governor (leneral in consc(|Ucnce nominates a Councillor to the vacancy, such appointment will beset psidc if the uuinicipality has elected a Councillor in the interim. Brosseau and Bissonette, H. C, 2 L. C. .T.,p. 9i. 2. Where two vacancies occur in the City Cum.eil of (Quebec, one by resignation of a member whose period of service has not expired, and the other in the ordinary course, the candidates elected will be called to serve each lor a particular vacancy, so, that the one having fewest votes may be elected for a longer jieriod than he who has liic greater number. Lee vs. Burns, S. C, 12 L. C. R., p. 425. Municipal Councils : — Munici[)al councils cannot, under the act of 1855, close a street, and form therewith a public pouiul by by-law, but must do so by proces-vcrhal. Corporation of thi Palish of Vercheres vs. BoiUillct, S. C, 2 L. C. J., p. 1 15. Municipal Debentures : — Under the 16 Vic. c. 138, [C. .S., L. C, cap. 25,J a by-law of a County Municipality which autho- rizes a subscription for shares of Stock on a Railway passing through the County, and for the issuing of debentures to 1' 198 MUN l*i 1. ■:' ^iill tip I .1 ; i: li . MM i. \ I t Jij cases uC contested numicipal elections be rei'iiscd. Ex i)arte Ht. Louis, S. C, * Municipal Debentures : — my for such shares, is void if no provision be made in the )y-law for imposing an annual rate or assessment for the payment of interest, and the establishment of a sinking fund. In passing such a by-law without making this pro- vision the Corporation exceeds its powers under the 12 Vic. c. 4), [C. S. L, C, cap. 88,] tne Superior Court, on petition in the name of the Attorney General, has jurisdic- tion over corporations, and to set aside such a by-law. Regina vs. The Mmicipaiiti/ of Two MouMains, S. C, 5 L. C. R., p. 15:"). Also, Regina vs. The Cmj.omtion of Sheffmd, S. C, f) L. C. R., p. 'iOoV MiMiiPAL Elections : — 1. a mandiiuius will L. C. R., p. r)0(». 2. A petitii)ii allcginn; tliiit a luunicipul councillor, after taking liisseallns been expelled, upon a contestation illegally decided, and aiiolhiT person named in his stead and praying that lie may be leinstaled in lii.s oflice in place and stead ol such other pi^rson is sudicient. Uiioux vs. liinet, 8. C, 3 L. C. Jl., p. 2()(). And in the case o( liinet and Giroux,Q. B., ■J< L. C. R., p. 177, it, was luld, reversing the judgment of the S. C, (3 L. C. R , p. 20(J.) that under the 10 and 11 Vice. 7, sect. 33, a iMuiiicipal Cdimcil lias a right of delegating to a conmiiltee the puwcr of invt sligating the facts complained of in the contestation, and that the resolntion adopted by such council, ui)on the report of such committee, cancelling and annulling- the election of a councillor, and declaring his opposant duly elected, was legal and within the authority of municipal councils. On an enijuiry into the leg:'.lity of votes given at a municipal election (or the City of Quebec, the .Tiidges are bound by the list of electors prepared by the Council, Jiud they have no right to scrutinize it. McDonald and Quinn, S. C, ^ L. C. R., p. 4-57. 3. R., warden of the County of Quebec, had appointed himself to jireside at the municipal election of Charlesbourg and on the day fixed, G., the seniir Justice of the Peace, assuming that the nomination of R. was illegal, had forcibly installed himself as president, and had proceeded with the election, assisted by a party who had expelled R. from the polling place ; R.,on his part, had proceeded with an election in an ailj'iiiiing room, without the i)resence tif the Majority of electors, and alter polling four votes bad declared his election closed by reason of violence. It w; s hold that G. had no right, to install himself as president, even admitting the illegality of ll's appointment, and that therefore the election presided over by him was void. That the senior •liistice of the Peace -alone can preside in the absence of the jierson appointed by the Warden, — and that the election presided over by R. was void, inasmuch as it had taken place in the absence of the majority of the electors assembled, and had been prematurely terminated after the polling had commenced. Paquet et al., and Robitaille et al., S. C. 8 L. C. R., p. 125. 4. And where the person named by the Warden of the County to preside at a meeting of electors, assembled for the M U N to M IJ R 199 of the for the Mi'MciPAi, Elections : — purpose ol' I'lfcliiig councillors tor a municipality, absents himself afler the comincnccment of'tlie meeting, the electors present liuvo no right to name anothtv president in his stead, and tlie eU-ction uiude under the presidency of the person so named bv the electors is null and void. Perrault vs. Brochu, S. C, 10 L. C. R.,p. 111. r>. A municipal election is void, where the votes have I)(?eu taken on loose sheets, and wlure in fact there was no poll book stating the i)iir[)oses of the eleelion, giving tho luuius of the candiiliites, those ol'llie electors, their lulditions* ami piMOes of residence, — and where tho votes had been ^iveii without naming the candidates, foi whom such votes were so given, but merely by indicating the party in whosa liivor the votes were given. And petitioners who jiray to be declared duly elected in the place anil steail of others, are bound to allege and provo that lliey are duly (|iialihed and eligible us municipal councillors. Guay et uL, and Blanchet et aL, S. C, 8 L. C. II., p. 181. tt. The Statute Law of Lower Canada being silent on tlio sid)iect of bribery in municipal elections, has not the effect of annulling the votes of the persons bribed, nor of disqua- lifying the, candidate by whom they were bribed. But sec 2:i Vic. c. 72, sect. K). Thtit defendant cannot by means of a special answer he e"!nj>"!!ed lo answer eharg'-s not specified in the roiiietc lihf/lef, tiled under the 12 Vic. c. 4-l.sec. 3, [C. S. L. C, cap. S8, s.?er. 3.] And the ]>etitiouer Iniving prayed for a judgnieiil declaring a particul.jr person to be elected, the. dt'fend int. has a right to contest his (pialification to hold such ofiice. Wood and Ileani, C. C, 8 L. C. 11., p. 332. MuR Mitoven: — I. Mitoi/enneti of wall between neighbouring pro- perties is a presumption of Inw which can only be reb\itted by titles or marques. McKcnzie vs. Tttu et al.y S. C, i2 Ti. C. R., p. 257. 2. An action for money paid and advanced niiiy be main- tained by a proprietor of a viiir mi'oycn against his co-pro- prietor for his proportion of the suiu expended in the repairs of the wall, if the latter Iihs inipliedly acipiiesced iu ihtj nnikiiig ofsucli rejiairs. Latonchr is. Rnllman, S. R., p., Ifjl. 3. And the neighlxair who uses- the elevation of the mv> 7)nioi/'n made by his iieighboiu", is bonud to pay half fh(i price and value thereof. Taveniier v^. Ldiiwntague, '6. C, 4. L. C. J., p. 81. 4. No damages can be recovered on account of inconve- nience and loss siitlered by the t:.kii'g down and r^ building of a milotfon wall when sueh lucoiivenience and lo^s are th". nect\ssary conseqnenc • of the taking down and ri building the wall, and when all [iropi'r [recautious have been observed, and no unnecessary delay or neglect h: s taken place. Vcvk and Harris, Q. B., 6 L. C. J., p. 206, and 12 L. C. U., p. Snf.. And where the mitoyen wall is sufficient to support the existing buildings but is not sufficient for others, and one of the parties wishes to erect, the party so wishing to build has a It 1 ,1, It i iiii" i-i ■::! a i"- 200 M T' R to N E W .Milt Mitoyi'n: — rifijlil to (Icinolish thu wfill and reluiild the same, ob.scrviiii,' llic tliriimlilics in that behalf rocjiiired by law. Ih. Jhit thcjiigh the other party has no rij^lit to claim (lnniai;.>>. • the tenant oCtho buiUliiig, the wall of which is deniolislicil. is entitled to a diminution of the rent in iircjiortion to fli.; dnration and extent of the encroachment on Ins posses- sion, lb. Ami so also it was helil in Lt/man ct nl. atnl Peck, Q. B., li L. C. J., p. 2lt, and 12 L. C. K., p. 3GS. Natl'Uai, cmt.n: — Vide PATKUNlTf;. NAViciAun; JIivf.r: — A superior mill has no rii^ht to obstruct a rivt-r which is navigable \xx\\\ jlulUihic and nscd lor llnatiiif;- limiicr. by con^lrnctiMf:!; :i boom across such river; and purtitsowniii:: iiiills lowiT down the river, whos(! logs are detained by .■siirii bimm, have a light, after reasonable notice of demand t. lie allowed to pass with their Jogs, lo pass down, and they are not responsible for the damages caused thereby to th-- ju'rson obstructing the river, by reason of their lo'p-, bemir carried down tlie stream. C/aipman is. Clarke i)- d., 8 L. C. K., p. 147. Navkjatio.v : — Vide Collision. Neolk.knck : — Tbe presnm|)ti(jn of necliger.ce, arising from the tiu^i ol railw ay carriages getting oirtlu! track and tbereliy causmL. personal injury to a passenger train, is stronger than th ■ testimony lo the contrary of the railway company's servauK wliosediity it was to guard against such acciilents. Germain rs. The M(mtrcal and New York Railroad Company, S. (.'., I L. C. .1., p. 7. .\e:v Conclusions: — 1. Tn a deliiult case, now conclusions rps(M-veii by declaration, in respect (»f rent accruing, may be taken without seivict! thereof on the delenilant. l ubois rs. G'an- thier, 8. C, 2 F,. C. J., p. 94.. » 2. 'I'lie phiiiitiif, in an action of reveiidication of a move- able, who liiis omitted to conclude in terms sufficiently ainpi>> to meet all the emergencies of the case, cannot be ullcnveU to take new conclusions. ITis only remedy is by motion to amend. Pry toevideiice the Court will grant a new trial. Beaudn/ and I'apin, <^ !>., 1 L. C .1., p. 1 14-. Ihit a new trial will not be accorded unless it be shewn that the verdict is without proof (.r clearly agjiinst the evidence. Bill rs. La Coiirp 'li^nie (f Assurance de Quebec, 1 Kev. de Leg., j). 113. And the J^iiperior Court has the power of appreciating tor itself the tvideuee adduced before llie jury and if the verdict be not sust.iiiii'd by the (ividence, will set it aside upon motion to that elb'ct and render snch juilgment as shall be jnsiilied by the rccctrd. lUiX^itisnn rs. Lyman if id., S. C, '+ I^. C. .1., p. 329, also Tilsionc df al. and Gihb tj- al., Q. B., 4 L. C. .T., p. 3(il. 2. A motion for a new trial, on the ground of misdirection, will be maintained, if it appear that the judge has not charged the jury respecting the imputation of payments. Tilstone ij- cU. and Gihb if al., Q. B., 10 L. C. 11., p. 284». N i; W to N () T '201 Nbw Tiuaf. : — 3. And a niittifiii to sot nsido tlio verdict uiu\ dismiss tlit* actiiMi, or to gr.'iiit ii now frial, i.s xjjidiir and in uccordaiici' with llic jirai'ticc ol'tlK> Court. I/, .gius' /t is, Li/man &' o/., S, C, 4 T.. C. .[.,!). 32!>. \. A motion liir u now trial i-annot he recoivfd nllor flio first Ibiir days ol' the trriu next followina; tlio verdict ot' a jurv. Mnritt vs. I.yndi, S. C, H I.. (,'. 11., |). .')r>;{, and M T.. C'.J.,!). 27(). f). There is nci new trial on the Crown sicU^ of the t^>ticen*> Ihneh. Ji. vs. Jhiirc. 10 L. C. l{., |.. I 17. Vidr Brush f\. Ji,//rs, L. R., |i, Ki. " a/f,fj i\- (i/. rs. Tilsl,»iv i\- /'/., ft L. f. ]l.. !>. >J1I. " : — Yidr .hiiY 'J'ui.m,, " : — •' \'i:uni(r. NEWSl'APr.ii : — 1. A new n)i;iji' c siiliscri|)tii>ii can he i'ei'(i\cn'il, i»ii mere I rnul . "ilh. Jhit in I'drsiiiis i\- III. IS l\( II ij. ill., it was hold tlmt delivery witliont prool' tiiat the paper had hi en ordered was not snflieient to maintain an ai-iinn (lir die .-ad;'- jirietoi's were held liahle in mi iiction o| d,iiiiai;t '^. St ■iin"' vs. h/.'tnnir i\- (t/., L. 11 . p. i."i, iual ti L. ('. II., p. 110. NoN-tsi;ii : — I /VA I )i;si,i;ri ni:. NoTAiii.ics :— Vii/f .Mau(,i ii.i.ii:i0. A notary juthlie has noantiiority to misval an lio|i,jrraph will unless in the prt sence ol'a jiidiie. /',. !2. 'The (■nnri has i ., p. w,i- lo coii.j.el a i .dary to send up his niiiiiiii . , i//'7 ,,'.' // {',• fro! \- I'l . rs. T\//ii//iy V., L. R., .i. I he deeds o| i;(,'ar.( s (I l.i.\\ cr ( aiaula in whiidi such nolaries style tle'iiisel'/. s ootaiie^ of Canada are null. JtCdutlni vs. Siiinrt lY al., I lle\-. di' Lei;., p. 4.'. ■4. The provisioiss of the ()rdinaii,-e of. llf'S. and of Hloi.v iif I.">79.in r:o f ir as 1 hey retpiii'i' the presriiee of a second notary to the execiit ion ola mnarial act, have heen ahroirated hy disuse ; and conse(jnei:t!y a notarial dtrd is neitlu'r/f/?/r ■^ ll'llit'si' cast s lie ciiirci'ily ii'IIcii'IimI. it Is (lidlcii!! to ^iiy w Ijicli is I lie iiioro extriivnjjaiil. Il is us liilii'iilous !■) |ircteti(l on tin; mu- iiitml liiiit n lUiiii ^illlll!l| lie roiiijji'lli'il to pi'v Ibr n paper pininly dL-liwitd n^'aiiist lii« wJ', ;;s it i^ to iiiiiiut.iin ili;.! no iU'(HiiL'M.iiicc oil tlie j);ii'. of ttie clefciulnni will .-upply ilii- wiint oln rc^Miiiir oiilor. It is liowevop to lii- sitpjiused, llint ilie judgrriciits in fiuc.^tion cnrriecl otit tlie well known i>riiii iples wliicli govern sale and delivery, nml did not oslublisli any special rules tor the contract between newspaper pioprietors and newspaper readeis. ill i ■iM t L i .ii Hi r j J I ii '^■' 202 NOT Notary : — nor nul from the niinnfc having hvcn cojinfcrsicfiiod sovornl years iifler it vvi\s I'xccufi'd, tho miruito having hcMMi sigiiod by the jHirties, the wholo without friuul, uiul tlic iiiiniiii» liaving boon prcsciitcil to the second iiotnry, by tho. >wtnirr instrument.airc. Ihsfoviies. diid Dufaux rt uL., (^. U., 13 L. C. 11., p. 179. A jirtitost by a third jtiirty iissignoo olii creditor of a i)arty to thi; nUey woidd in>t necessarily provent tlini second notary from validly Cdiiiilcrsinjuing tlic minute |ir«- Mcnted to hiiu by the no/aitr instninimfttire. Ih. 3. Action of diuuagi's against notary for giving lui iii'i-r- rect copy of a minute. linitrdrait rs. Dujyins, S. (,'., 7 I,. C. .i.,p. :u. (). In an action by a notary fiir the cost of dcecls passed l.y Inm, the copies theniselves will be sidiieiriif • \ idcuee iliiV the deeds were pusst-d. Trudeau t'v. DfLini'imhrri:^ S. (j,. 7 I4. C. .1., p. lis. 7. The costs ol' ;in inventory must, be li'inic hv the ciitiitivcMit' t||. deceased ainjninf, le>r tho reniiiiiuler. /A. — Vide Kvinn.Nci:. — '* Inscription en kaux. Notice: — A notice snlisi^cpiently giv(!n of security in npiuMl is w waiver and a revucation (d'sneh security iilrcndy given I'nr 1 previous ilay. tiidliiiin and Smith, <^). 1),, "^ L. (■. ,!., p. IGO. Notice of Action: — 1. A eollectov of customs is (Mttitled ti):i niun'li"^ notice of jietion to cniiipcl him to pay hick iiHUicy exiicii'.l by him as fees .^. 3. In an action ngainst a .Tustice of the r\';ice, entitled by law to notice of Mctioii, such notice need not be cited at fiili length in the declaration. Daris rx. M(t<:uiir, ■!< L. C. 1'.. p. 3-i7. And so also in a case of Simard rs. Tult/r, V^ Vl>n. Jurors. 4. In a possessory action for tresjviss by making iiiiii opening a nr.ul on the plaintilT's firm, the defendanl cannot, claim the bi-nelit c>f one moiitlTs notice, under the provision^ of the U .\: 1.5 Vic. c. oi, [C. S. L. C, cap. 101, sec. l,j under the pretence tluit he iiilfllied a public thify in so doing, and acted'under orders received from a survevor of roads. Ednlmn vs. MtCluillan, S. C, 6 I.. T. U., p. iSg.* f). Jhil an in.>peclor of roads is an oflicer Within tlu; mean- ing of the Provincial Statute It cV. J.t \'ic. e. f)-!-, jntitled to a month's notice of action for damages in eonsecpieuce of an act performed by him in that capacity, ailliough such act may have been committed without legal authority. Jetti' • This could hardly give rise to a (juestion, for the Statule only gives ihu notice a» a protection against an action of damages and not against a possessory action. NOT to NOV 203 Noncf OF Action : — and ClKx/ucf, (^. B., i L. C. J., p. U8, uiul 7 L. C. I{., \>. 63. beo also, MvNituiee vs. Ilimrs S. C, 'i L. C. J., p. 109.* 6. Whoru II ))iiblio oltiucr i^ entitled to iiuticr ni'iirtioii, Ik^ does not lo»o this nrivilc^o ultlioii^li the action Ih> brought after ho has censed to ho siicli jmhlic oIIIimt. C'»/u)ni(i()n of Pirinte Claire and Valoix t^vt/., iS. C, 7 F^. C. .1., p. HM. " : — Vide Sheriff, No. f). NoTiCR OF Knquete: — Vide Enqlete. Notice OK Motion : — A motion ol which no nittii'c hiis been niveii will he rejected, if it ho not a motion ol comx.'. Ihlhm vs. Chalxit., 1 Kcv. do L6.4., p. 4.8. " : — Vide (Iaudikn, No. 1. Notice of Protest; — Vith' Pko.missohv Noh;. Novation: — 1. To render !i ilelesnry th:it the will ol' the creditor to nccept the jievv dehlor ill place ol' the old shmild apjieiir in seme w ■\\\ hy ;iol or ollier- vvise. And piiyments mndt' hy llie pnrty dileiiiil' d in liis own name and for his own ac<'oiuit. ;iiid s,. a'.'cep) d hy tiie creditor, constitute a .sullieieiit ;ice. |it;iiice ol' \\\i> ('- u"j;;trien, *nnd the party (hdciiated enn ajtir''; rds mly be Idiiral'-d by the creditor. Poiricr rs. Lfrmir,, s. f'., t: I,. (' .i.. p. 3()-2. 2. When there is iic s|»ecial nieuiioii o' nevi' moi hi a deed, the right of the creditor to sue ii) wn the i.i-i»riiial ehiii , remains. Muifdrlunr is. I'n.'/o//. I i ,. ( !. II., |>. •J.'XJ. .\nda j)romissory note ^'iven in paymeiii ■>{' rent operates n- M()va- tion. Jones is. Lrnicsnrief i^ "/•. - lit v. de Le. , ,i. .'J17. And .so generally notes given as payiiii ut nf any chatlid will not create a novation of the drbr iie'iv it otlicrwisi' upjtear that such \\';;s the intention nl'parti s; , :ultlie words ^^ do)it (luilt.(i)irc^'' ill a tleed a sale ;ire iml an indication of such an inleuLitin. L^nad, and Ldiiiii.son, (}. !>., I I J^. C. R., p. 29. And the giving of one |ir(iii:>seiy note will not operate the novation of anotlier previously given. IVoad iyol. vs. Uouc/iii./d i)- iiiil Irom thi' maker and another note at three iikhiIIis retaining ilie lir.st as security for the second, he does no! lose iii> nooiirse again.st the endorsers ol' the lirst note, • '•> Im, .• :_veii their assent to the transaction, allhoiigh tie rcer ol' tl-.e lirst note bi- insolvent. And a receipt cnveii iiiiiN r -^wU i ircuiusfancps may I'e ex[ilain(Hl by parol evid(Miee. 11 '""./A"/// (ntd Llurtli., Q. 13., 9 L. C. II., 1.. 4;iS. .3. The extension of d :.iy alleWfd ti.i a jrincipal debtor hy the creditor operate.. novali(ai. as re'^iuds the security {caution), and liberates him. Ht.Au^iin is. I'l.r.'in, W llev. de Leg., p. 2K^t * Thi* ease appears to Ikj in coufurmity with ilie rnlin,^- in .Inic iiihl Cliuquei : l)Ht as ilie report no wliere states in wiial capactyuelemlant preleiulcd to ;ut. lialc mloniiaiioii can be (fathered from tiie dtcision. f Can there Ije sufh thing as a relative novntion } If not, it is not l)ci'nu.«e of a novation cf the ilebt that tlie endorser is disi'lmrgod, but (j wins? to a presunu^tl lolcnje, or snch negli- gence on the part of the creditor with regard to the interests of the caulioii, that lie is held to be relieved from all liability thereby. il 'I •WWft ilj . . f ii 1 1 " ■ ' i ^ j 1 ■ ? !' 1 >!■ f. s 4 y|jy 204 NOV to O F I ' Novation : — 4-. The tnkilip: of a note made by B. for goods sold niid delivered to A. does not operate a novation so as to discliiun^- A. lor the jirioe of the goods without an express agreeniciit to make a novation. McGarvey vs. Auncr, S. C, 7 L. C. .1., J). 33S. 5. The sale hy deer et of a eonstitnted rent does not oper;ti-> any novation i)f .siu'li rent and lias not the elleet of ehangin.- ils nature. Turcot te vs. Pn])a/ts i^ a/., t?. C, 7 L. C. .1.. p. 272. NriSANcr. : — It is no solid defence to an indictment for a nuisance tn say thai Ihe advaiitaire derived hy the pnhlie is rrc^atiT Uiiin till' iiieonvi'nience arisiiii;; from the nuisance. .A', rs. li/i/" . ii. r.., 10 L. r.. 11., p. 117. Ni'i.LiTf; OF, \'kntk : — An c'/udiai/u/re who has purchased a tiiriii tiigetliiT with huildiugs at shcrilf's s;ile, caunul claim ■ reduction ol' price heeaiise such huildiugs are not upon th'' jTcuiises, heoiii'ht todeniaiul the nullity of tin- sale. /Ji>i,,l and C/dj'liam, 2 Ue\ . dr Ltg., p. 17I». " : — Vide Itr.cuKT. Nii.i.irv OK Sr.TTi.K.MKNT ov AccoiNr: — \'i(fr Ti roKsiiip. ' Nimukk: — I'-rror iu the nauiher, on the iiack of an oppt)sition "/!>■ d''a)niiillir. is a izood around W\ causiui; sucli opposition lu Ije rejei-ted, — and the Court will not grant a counter mot ion iu anieihlnieut of the eluhir>alioii of siu-h opposition it |( appears lliat the opposition is in itself frivolous and only made to ohtaiu delay. .Awy;// rs. Ctui and Cm/. (>pposaiii. S. ('., I Ti. (1. .1.. |i. 2. And also \\li( r<' there is no uiiinln'; the opposition u ill In' rejected. Lrviisun i\-u/. i\s. Ciliiniii.; ham, .">. (;., ti L. (.". U., p. 1S;J. •Oiil.K.ATmN : — 1. for the validity of an ohlinat inn and }nipiiihi i\vv\\ he aeeepled hy liiui, or any oui' in his name. liijiDi and llidpin. (^ H., (i \,. ('. 11., p. (i I . 2. I'nder the it! \'ic., c. ^0, an oldi^at ion is null lor all exc(\ss of interest ovi'r the rate of si\ prr n ntnin . Ucllt.vi vs. nri:,)nrdr//r, :<. C, 11 L. ('. 11.. p. Hili. — Vi.'r j.NTKRKST. — " T'sruv. : — 1. A transaction relative to a piiMic ollii'e will he dcclareil null. /)iie\, though under the Provincial SlMlnle IS N'ic. c. II, the p!»rty agreeing to do ,so had no legal right to net as inspector, ei Inive an inspection store. lIciisJuiic rs. Di/dr, S. C, 1 fj. <'. .T.,].. 121., and 7 L. C. II., p. 121-. Offences: — Commi.s.sion for the |)roseentit)n ami trial of oll'eucoi committed within the jurisdiction of the Admiralty, p. 3S0, S. V. A. II. u Of KICK sold niul (lisc'li!ir;r<' grci'iueiif 'L. C. ,1.. ot oporai'* chaiii!,iii.' L. C. .1.. lisaiK'c tri ^utiT llum rs. lii ii"\ (I a liu'iii ! (Maim w ii|Min till' 1'. IJ|>piisanf. lo niiinlic: C nil id II J, 'In'i/i/r. it imr lii;i' IS llJUHi". 11 li.rail ljri7> i ( >' ilcclari'ii liaiiii'H', H' in |iar- ■. and IS And an to cUi-i' ll»|t' I'Oll- nu>n<'\ , lie party (•(•tor, or 1 r.. (". oilencoi p. 3S0, O F !•' lo O V P •205 OnKEs nftr.M.Ks : — 1. iltlu' dofrndant in iui action niaUcs a tt>ndt'r ill satistiuMion ol" |»laiutill "s drniaiid, the C\«nit will nivc judgiiuMit, for tlir uinoiiul ttMidorcd, without ini|iiirin£r ulitUlicr •)r not tlio amount was roally i\uv. (i//<:// out! C/ioui/noiI, li Hl'V. do Iji'iX., p. .'<0S. '2. A tcudor to tlio attorney at/ l/tr/ii ol tlio plaintili, who rt'sidos beyond the limits oC Ijje I'rovinee, ol' the value nf eertaiii jrooiis. wh leii the heriii" as ^(ir./ir/i inul lai ti> produce, and tlie costs oC the rule, wliicdi had heeii dismissed, and an appeal sued out in consecpience, made heli-ire ser\ lee ol' appeal, is siillieient , and the respondent will beeiililled lo his costs in appeal. Lcirrson S^' (d. and lioslnn, A L. ('. V 'i'23. 3. i he lender of principal and interest alter lv•^ll(■ nl ;i writ ol'sumnions, hnl he liac return, is had, nnaei-oinp inied liytlie costs (d'an action helin*' return. Jtoitdirr rs. L-nioinr i\- (d., S.C., 4. i.. (;. .1., p. \m). 4-. Olfrcs rtc//rs slmidd specify the dilli'renl kmlaee, and he lakes it to a more distant place, aial the hi'rs<' dies in his hands, il is lor liim to prove that the in rse w;is not in a lieallhy state. J)cy<(t//r/s vs. I'vndidt, S, ('., \,. 1\., p. (iO. *.!. Where a ship at anchor is run dnwn iiy aiinther vosel s prulitindi lies Vxilii the se'^sel iiinler s;iil oceasloiud l)v ail V I'lrer niuler sail, liie anus pt to show that tic ct.illision was not or delaiill iinoii her pari. The IMinniii'lii, p, V>|0, V. A. i; The JoIdi Miiitiis in note, p : — Vide iOvii)i:\( r. 2(i(i, d>, OrrosiTioN : — 1. An opposilion will bn dismissed un nn'tion, ou the "round of the insiiHiciencv ol' the allidavit w liicli -iales the opposition as made in iiood liiilh, and with the object of obtaining justice, if the word sale in the lorm of allidavit, set forth in Die rules of practice, be omitted. Srlio/r/ir/d i\- id., ■IS. Kixidcn i^- uL, S. C., (i L. C. 11., p. 17M. And an allidavit in sup|>orl ol an opposition afind'aniudhr. \\\ which the wmd "unnecessarily" appears instead of the word •• uii|ustly,"' and in the jural of which the word " sworm " is used instead of "sworn," is bad, and not in accordance w ith Ihe allidavit rerpiired by tlu; rules of practice, and the opposition nfni d\innuUer founded thereon, will Ik* dismissed, and a rule obtained, to seek to be perm itted to file a new iillidavit correi'ting such errors will be discharged, if >iich corrected allidavit bo not tendered in support of such rule, Moiin ijj- al., vs. Didii k\- (d., S.C., G L. C. II., p. IMI. Hut an allidavit made by a patty, to dir best, of his Liiiiir/itl-^i\ is siillicient to sustain an opposition enter, ^^, C, 3 L. C. .1 ., [i. T'i. M \ • Tl *#J I i I \\m\i :jf 206 OPP *! . 1 V M 4.^b Opposition : — 3. All opposition will be dismissed on motion, if there be no grounds assigned. McDonn/d vs. Grenier and Grenier, S. C., 9 L. C. R., p. 73. 4. An opposition to annul the seizure of real estate cannot be received within the fifteen days preceding the day fixed for sale, even with the order of a judge. Lesperance and Allard ^' al,, Q. B., 1 L. C. R., p. In-l-. But in certain cases an opposition a/in d^mnul/cr or de dhtraire may be filed to a writ of ve7i(litinni exponas. Fournirr and Russell, Q. B., 7 L. C. 11.. p. 130, and 1 L. C. J., p. 118. But for this, per- mission of the Court must fir.-t be obtjiined, else the opposition so J i led will l>e dismissed on motion. Boudreau 6f- al. vx. Poiitrv, S. C, (i L. C. 11., p. 72 ; also, Quebec liuildinn Society vs. Atkins ^- al., a.vd Atkins tj- al., !S. C 9 L. (". II,, p. \^-i. Bill tills case of Allans i\-aL, and the Quebec Build - inii Scicicty, wont to appo:il, 10 L. C. K., p. 333, where it WHS lu'kl that an op)H)silion nfin d'^anmdler may bo made to a writ ui' vouli'inni exponas, where such opposition is foiiiuloti upon alleged nullity of the writ itself, or the irregularity «»• the pro('i't'diiig.s tliereoi), iiiid the fiat of a judge or the per- mission ol'tlie Court is not. recjiiired.* 0. An opjKisition afin d'onnnller to a sale of real estato under u writ of venditioni exponas, will be rejected on motion, if the defec1,s nlU^L'ed existed in the proceedings under the fieri ta'-ia.'<. or it ilie conclusions demand the selling !isi{lt> (jI the jiroeeedinirs under the Jieri facias. Abl'iitt vs. T/ic ^lontrml and Bytnivn Railroiid Vompomi, S. C. () L. C. R., p. 4.2S, ;,nd 1 L. C. .1., p. 1. fi. K\\ ojiposition afm de disUaire may be filed to a writ of venditioni exponas de bonis. Dclisle vs. Couvrette iind Clcmeyi' dit Liuiviere, S. C, 4 L. C. J., p. 84-. 7. All o]iposition afin de distraire produced too late. namely : within and not " previous to the fifteen days nex' before the day of the .sale," will be rejected upon moliou, notwithstanding that such opposition has been produced with the order of a judge to r'^eeive the .same, and upon nliidavit of one of the ojiposants. Joseph vs. ]Jo?tnclly (oid Alona'jhan, 8. C, 12 L. C, R., p. 106. Jiut in the case ol Tlie Trust atiil Loan Company vs. .Tvlien and May, it won held, tlnit an opposition ajin d'anmtllcr to the .sale of an immoveable ]uodiiced within the 15 days preceding tlie sale, cannot be di:-mi.s.scd on motion. 8. C, 7 L. C. .f., )>. 129. Confirmed in Q. 11., iiih tSept., 1864. 8. An oj)|)osition afin dxinmdlcr cannot be maintained against a seizure of lands, on the ground that the defendant was possessed of siilficient moveable property to satisfy plaintiff's judgment, when such seizure has been precedei: by a regular return of tudla Ixma. Soupras vs. Bovdreav ' It is pro|)er to remark in this cmk, ili.it tliu judameiu wns roiviered liy Duval, J., ami C. Mondelet .iiid HaJgley, Aw. J iKlges ol llie (j, 15,, llie Cluel Ju.-luc ami Aylw:ii .1 fli.«i!le and Didryniplr, S. C, L. Fv., p n4-. 10. Am opposition afm d'lunmllcr need not bt' rigisttM^ed in the otiii'e of the r'ireiiil Conrl hefi^re it is placed in thi> liiinds of the baililK l.diiii.lhv and Gurciaii, <^. 1)., V.\ L. ('. 11., p. SS, and 7 !.. ('. J., p. llf). It no hour b: lixed for the r. 'riia" it is not by eNceptiou a la furync but by motion tliat. the intrinsic jiroceedings re(]niref Cimaila^ 'S. C, 13 L, C. Tl., p. 4r)5. 12. The Court will construe ''The Grand Trunk Arrange- ment Act of 1S62," 2") Vic, c. 56, and particularly the 1,22, 23, 24', 25 and 39 sections all together, that under the Act, the debt of a creditor entitled to a shart; of the postal moneys could not be extinguished, or his right to execution taken away, without payment and tender by the company of the ])ostal moneys and preference stock referred to in the Act. lb. 13. A rule by an opposant aJin de distrairc calling on plaintiff to contest his opposition and to order that in delimit thereof main-lcvee be granted is irregular. McGrath vs. Lloyd and Keith ij- al., S. C, 2 L. C. J., p. 279. And so also it was held in Limoges is. Mar sunt and Labelled S. C, 13 L. C. R., p. 24.4.. If the parties do not make a contestation the parties should proceed ea;2^anc. lb. ^ 1 I 1 1 : t i , 208 opr h I . ■ Ori'osrrio.N : — 14. Wlion plniiitilis (lechirr (luit llioy do not contest an opposition iifio lie distnii/e, main-lvvee of tlie seizure will be j^ruutotl Without costs opaiiist tlic pliiiiitiffs, but with co.st.s atiiiiiist, tlu' (IcfeiKliiiit. Corsr vs. 'rcif/or and Tfnjlur, 8. C, 3 L. C. .1., p. It)7. 15. The aflidavit ol' clefemlant, opposaiit's husband, is p-coil, without any allej.',;ition lliat be is oppos;iiit"s aijciii Wilson IS. rariscdu and St/iund, ^. C, 1 L. C. .!., p. 1. It). An opposition nfn dc distroire will bo dismissed on motion, if it ai)]H'ars on the liiee of it to be frivolous and vexatious, as wliere nioveables are si'i/ed und(-r. a writ ui VoHlitinni /■.':r/>oH(ts,ii\\il a n_ opposition {odisf./ri'/r tiiesc qoo(l.> was niadi' settiui!,- up a sale to dp) osant of the li'oods whilf niider seizure and aUegiiip- no dip/ a cement. Lovil/, vs. Fmi- f.d/nc end Sf. Amend, ^. ('.. .") L. ('. .1., p. 71. 17. It is not '>Mfne!et!t for defendant to allep'e in his o])po- sitiou (i/i/> dr (/isdiiirc that the goods seized firm part of lii> tools or thi' imj)leni(>uts of his Irach'. And it is iiot n<'eessary for the baililf to alligi^ in iiis prwes-vrrh d , that he has lef' to defendants llie eliects exem|)t 1)V law. )'n/i rs. (/('oz/nni and O'Connor, S. C, 7 J-. (,'. .1., p." |-2(i. lender the C. iSts. of L. ('.. c. ^M, sec. 10, an opposant is l)Ound to allejie and prove that he has projierty in tin- ilistriet where the Judgment was rendered in order to suspend the execution of the writ in another district, ho-'- r?. Covl.h:i\ S. C, VI L. C. Pv.. p. 403. And Massnc. rs. Crchassa and Crchassa, S. C, 7 L. C. .1., p. 225. 18. The lessee of a iiroperty seized and a>lvertised litr sale by the .Sherifl', cainiot by opposition nfin drcharniiss''d on motion, tin' oppo--i; itui l>''inii,- licadcd •• Xo. ,'hi.'i, (i. i>. C. Leverson, plaint ill", vs. .!;■ nit s ( 'nun iii,i;luun, deUiiduii," liiere beiny no nninher on I be eiulorsation, luid the words" etal," lieinii" timittiMl bot'; in the bfiidinu- of tbe opposition and in the endorsation. J.crci'snii it, n/ . is. Cuiuii/inlKnii, >. (\,(\ L. C. 11., p. 4.s:i. A Is*) Jas'ph ...v. (V-//, S. C, 1 f.. r. .1., p. 2. 27, A debtor may oppo'-c ilu'saicof bis ro;i! estate. the creditor not bavini;' irivi'n liini eridil li>r -anns ri ecived in jiart jiayment of bis indirnicnt. i'mdnii r mid llnssr//, ^>. IJ., 7 L. ('. 11., [t. 130. Also La JJaii'iiix da fcnji/c rs. Dunei^aniy i<. C.,3 L. C. il., p. -178. 2S. An opposant nfin dUnniuJIer who has omitted to file hi.s tiile.s with liis o|)positi.)n, will not lie allowed to file, them allerwarils at the eni/iuic. Miijor rt id. r.v. Bid.y, !S. C, 4- L. C. 11., p. 126. 2f>. Where an ofiieer eliarj^ed with a \\t\y <■(" execntion made return thai he bad been told by the deiendaut that he had no moveahles and that thereupon Im bad seized tbe defendants immoveables: and where an ( ppositiuu was made to such seizure by delendant on the ^ronnd that bo had suflicient moveables, oa demurri'r such opposition will he declared iusullieient, unless it centain a deeliu-ation ol the liilsity of the return of such ofHeer. Atnold 's. Camphdl, (J. 13., 9 L. C. 11., p. 33. 30. All opposition filed contrary to law will b«' dismissed "■ on motion as irregularly liii-d. The jiul<:inenL aii:ainst a t/c/s-saisic carries with it a right of execution and conler.s rights on the sei/ing creditor which cannot be interfered with by the other creditors of defendant. Mason et al vs., C/ioa/l' a?id the Merduuit Assurance Coaipnny and BiroHy S. CO L. C. R., p. 1G9. Also, Cliapman n.yiarke and Ihr Vnity Life Insurance Cumj) my, T. .S., S. C, 3 L. C. .1., [>. li)9. 31. The Court cannot take noti e of rea.sons of oi)position A\hichhave already been invoked by a fbrmer opposition upon which the Court had already decided. Fournier and liussel, Q. B., 10 L. C. 11., p. 3G7. U ill •fji:. 'ijiii r; 210 OPP to OWN n' t!i pi t!' I I'i I ; Opposition : — 32. A person whoso interests nre affectetl by a judgment "^^ in a canso, to which sncli person was not n jiarty, may come in either liy tirrcr-npjwsitinn or by direct action, with a view to be maintained in all liis rights. Thoimi aod Lchlanc ef al., Q. B., 10 L. C. R., p. 370. .33. An opposition to a judgment rendered by Protlionotary. fded after a lirst execution but Iiefl)re any day lor sale is fixed, will not be dismissed on motion. I\hirtineaa vs. Cadoret, S. C, 12 L. C. 11.,]). 1-23. 34<. Ill cases of opposition cfia de dislniirc, tjr., if any parties to a cause have declared that they intcndetl to eon- test any siicli oj)po.sitioii, and yet fail si) to contest after having been regularly jiut en demeuic to (b) so, parties uiakiiig such oppositions will not, nevertheless, be entitled to obtain jiulgnu'iit upon their opposit oiis, dr plana, but must proceed tis in cases ex purte, for want of a )ilea, and give notice of inscription tu the party who has declared his intention to contest, in order that such ])arty may cross- examine any witness produced by such oppusaiit ; and that, in such cases, opposanls do not, come within the ojjcration of the 84th rule of practice. JShlilain and. Oliver, Q. 15., V\ L. C. II., p. +17. V- A.MKNn.MENT. Contempt, domicii.k. J]xr;(;uTU)N. llvpoTiir.QUi:. .lunOMENT. Nlmiu.u. TiA riruATioN of Titi.h. Option : — Where a jjnrty had his option to proceeii either before tlie Trinity House or before the Admiralty, and made his option of the former, ]»y that he must abide as well in respect oi the execution of the judgment as in the obtaining of it. The riiu'he, p. 5.9, S. V". A. R. -iMaintennnco of order in Churches. -Vide Conviction, OnuERS IN Couxcii. : — At the Court of St. .Tames,' 27111 .Tune, 1832. " " at Brighton, 2()lh Nov., 183.'^. Cases upon : — The Jolin and Mary, p. G'i, tS. V. A. R. — The L'mdon, p. MO, S. V. A. R. Vide 1'ees. " Rules and Regulations. " Taih.e or Fees. OvER-iJii)i)iNti : — Vide Ratification. Owners: — 1. Owners of vessels (xxq not exempt from their h^ga! responsibility, though their vessel was under the care and mauagemcnt of a' pilot. The Cumherlaud, p. 7.T, S. V. A. W. 2. Having a pilot on board, and acting in conformity with his dir(^ctions. does not discharge resi>onsibility of owner. The Lord John lii/sseH, p. IHO, S.' V. A. R. 3. Chang(! of the owner, by the sale of a ship in a British port, does not determine a subsisting contract of seamen, and entitle them to wages before the termination of the voyage. The Scotia, p. 160, S. V. A. R. . — Vi( — . Order (( (I OWN to PAR 211 Owners :- 4. The Court of Admiralty has authority to arrest a ship upon the upplioitioii of the ovvuer, in a case of jjossession. Mary and Dorothy^ p. 187, S. V. A. 11. Facte CoMMissoiRE.— l. That where n compromise has been made with a 7«w;/r cnmmimAre in a deed of sale, the consideration of which is a rents viai^re, and a new deed is made referring to the first, iiiid in which last deed it is specially stipulated that the vendors sliould retain their privilege as baillcurs de fonds imder the first deed, hut where no reservation is made of the ^>a6'?c mmmissmic, it will he held to have been aban- doned. Evans vs. Smith, S. C, 1 1 li, C. R., p. 337. 2. In eiise of a deed of siile in consideration of a rente viagere, the retrocession by the purchaser to the vendor by reason of a fxicte commisson e, will not be viewed in the light of a resale ly the or sjinal vendor, so as to admit of intermediate mortguges obtaining a proferenee to the original vendor ; |)rovidcd that the retrocession be made witliout fraud, and that the property retroceded be in the same stati' and of the same value as when originally sold ; and in such case it is not necessary that the 2n(c'te mmmissoire shouhl be enforced by moans of a jiidgmeiit. The I'rop/r\s BuiUlini; Soi/ietij vs. Erans and Sprmds, Q. B., 13 L. C 11., p. 2f?8. Pain Beni: — Vide Ho.nnkurs uans i,'Kgi.ise. Paper machine: — Vide Moveables. Parish : — Vide Certiorari. " : — " Exception a la foumk. Parliament: — A member of Pjirliameiit is not liable for the penalty imposed by the C. Sts. ofC, chap. 3, sec. 7, for sitting and voting without having the property qualification required by law. The penalty is only exigible from a person whose incapacity to become a member is decreed by the sect. 5, and whose election is radically null. Morasse vs. Gueirn- mont, S. C, 5 L. C. J., p. 113. Partace : — A jmrtage 2^^01'isionnel may be ordered at any time between usufructuary legatees. Cuthhert and Cuthlert, S. C, 6 L. C. J., p. 128. " : — Vide Action e.\ Partage. " : — " Licitation. Particulars of demand: — Vide Bill of Particulars. Partnership : — I. The dissolution of a partnership without piirticidar notice to persons with whom it has been in the habit of dealing, and general notice in the Ciazette to all with whom it has not, does not exonerate the several members from the payment of the debts due to thirtl persons not notified, and who contracted with any of them in the name ofjhe firm, cither before or after the dissolution. Symes vs. Sut/terhind, S. 11., p. 19. And co-partners who have filed a certificate of partnership continue liable alter a dissolution, if they have omitted to file under the Partnership Act, a certificate of dissolution. Murpky vs. Patgc it aL, S. C, T) L. C. .1., p. 335 ; also, Jackson vs. Paige et a/., S. C., 6 L. C. J., p. 105. 2. The declaration of the names of all the partners of a commercial firm, at tlie Prothonotary's office and the Registry oflice of the place where is the principal seat of their com- 14- ♦ Slil|l 212 TAR rARTNERSHIP r — merce, is sufficient undor the 12 Vic, c. 45, [C. Sis. L. C.,c. 65,] and it is not necessary that it shouhi he enreiiistercd wlierever such partnership docs an act of commerce. Senecof rs. Chrncvcrt, S. C, 4 L. C. J., p. 239. A partnersliip is only obliged to enregistcr acertiticate of partnership in the ottice of the Prothouotary in the district where it lins the principal scat of its atiiiirs. Henecut and Chcnciert, C^. 13., 12 L. G. R., p. 145. 3. In an action under the 12 Vic, c. 45, [C. Sts. of L. C, c. 65, Sect. 4,] for the ])eualty for the non-registration of :» ));irtnership, there is no prescription under the statute lor limiting the time during which penal actions niay be brought, .52 Geo. IIL, ch. 7, [C. Sts. L. C, c. 108.] as the ofience continued from day to day. Ifmuhlei/ vs. Morgmt, IS. C, 5 L. C. .1., p. ;)4. 4. The admission of a partner on faits ct tirtides binds the lirm. Mapiirc and Scott, (.}. B., 7 L C. 11., i». 451. And even after the dissolution of the partnership. Vishcr rs. Russell et at., S. C, 2 L. C. .1., )). 191. Confirmed in tj. B., 1st December, 185S. But the existence of a partnership cannot be established by the adniissitm on faits et orlidcs ot one of the alleged co-partners, liowkcr and Chandler, S. C, L. 11., |). 12. And later in the ease oi' Chap/nan r. Masso}i, S. C, 2 L. C. J., p. 21G. Confirmed in t,). B., 3 L. C. .J., p. 2S5. 5. And the conlcssion of jiidguient against a cojiartnership, which has ceased to exist, by one of' the late copartners is invalid. The Canada lead mine Company vs. Walker, S. C, 11 L. C. R., p. 433. (). A vendor who sells to one partner, in his own indivi- dual name, and upon his own credit and responsibility, has a right to recover against the firm of which he is a member, provided the lirm has benefited by the transaction, and this although the vendor, at the time he sold the goods, was not aware of the partnership. Moguirc and Scott, Q. B., 7 L. C. R., p. 451. But a debt contracted by the members of a partnership individually, is not due by the firm. Hotcard vs. Stuart, S. C, 6 L. C. J., p. 256. 7. A member of a composite firm, cannot retire and sub- stitute another in his [ilace without the consent of each individual partner, and a judgment rendered against the composite firm, under such circumstances, is null, qiio future. LaUmMir iht Lehedu et td. itnd Dclislc ct uL, (.>. B., 8 L. C. R., p. I7i. 10. Partnership |)ropcrty is not liable for the debts of the partners individiuilly. Mnntiiomrrt/ vs. Cirrraal, S. R., p. 437. 11. A di'bt dm; to a deli'iidant by a part nersliip of wliicli the j)liiinti(l was a member, cannot be oilered in compensa- tion of the personal (b'btof the jdaintitf. Builcr is. Drs^nn-ars, a. C, L. Pv^ p. 1 ; also, llniia>d vs. St unit, rS. C. (> L. C. J., J). 2.)fi. 12. A d Masson, (,>. 15., 9 L. C. U.. p. 4-22. 13. A creditor of a co-p!\rtiicisliip may sue any one of tin? copartners witlmni llavin^■ previonsly bronulii \\\^ action against the co-partnership. 'VaUu- d nL, rs. Mrl.io/it'/d, L. 11., p. lis. ll. 'i"he I'lli'cts of co-partners sold under ex<'entioi), arc not liiible to the creditttrs of one of liie eo-paiMuers indivi- dually, untd alter the payment of the partnei'.>hip credi!"is. JMoudij vs. Vincent (I a/., .") L. ( '. Pi., p. o^S. 1;">. Mn a jndiniieht rendereil jointly and severally auain--t two co-part iier.j, for tin- pergonal debt of one of them, the payment made liy the personal debtor libendes the other partner, and he who has pa. d cannot he sii!ir"i;ated in the rights of tiie jilaiiil ill", hiit ft>r any claim iiLiaiiist the other ))artner mnst |)roceed hy a direct, action j^''" ^''<''"- i'': vs. Turcot, and Lcgotdrc ct ol , nnd Turcot ci iil. >. ('., ."» L, C. J., p. 9(). 10. In an action by co-partners where one dies dining the [HMidency of the snit, and when the cause is '//. I'ot iPvtre Juisfr, it is not necessary that the insttmcr b(> taken up on behalf of the deceased. Burn/ ct a/, is. S//rj>s/o/)r ct fa.C.C.,2 L. C. .].. p. V22. : — Vide Action en ueudition de co^IPTE. - " EVUJE.NCE. - " fAITS ET AnTICl.ES. - " rARTNEUS. A'artners — 1. The only action partners can liring against each i ther, in respect of the aliiiirs of the co-partnersiiip after its dis-suln- tion, is the action ])ro socio. Boi/t/ii/iicr vs. Titrcottr, ^?. C, 1 L. C. J., p. 170. Vide Vlio, As.-,umpsit. 2. Where a number of persons unite in a joint adventure each of them cannot bring an action, dei>ending on such adventure alone. They are to all intents co-partners in s:o far as regards such joint adventure. Bosquet vs. McGreeveij, S. C, 9 L. C. R., p. 266. " : — Vide Action ei* reddition de compte. " : — " Admission. « : — « Evidence. !! ''■', ■ i I 214 TAR to r E R I f '^ ",' pAnTY WAM. : — Vide Mur Mitoyen. Passenger: — The relation of master and passenger produces certain duties of protection by the master analogous to the powers which the hiw vests in him as to all the persons on board his ship ; any wiifid violation of which duties, to the personal injury of the passenger, entitles the latter to a remedy in the Admiralty, if arising on the high seas. The Friends, p. 118, tS. V. A. R. Tnless in cases of necessity, the master cannot compel a ])assenger to keci) watch. l/>., p. 120. Master may restrain a passenger by force, but the cause must be urgent, and the nuinner reasonable and moderate. I/j., p. 122. 2. The authority of the master will always be fully sup- ported by the coints so long as it is exercised within its just, limits. T/ic Tmonio, p. 179, ?<. V. A. R. Damages awarded against a master oCa vessel for having, in a moment nf ill-hiiuiour, attempted to deprive a cabin passenger of his right to the use of the (jiiarter-deek and cabin, and to separate him from the society ot his fellow- jiasseiigers. Ih., p. 180. -Vide AUMIRALTY. - " Assault. - " C'AnRiEns. Passenger: — Vide Damage. " : — " .UiKISI>ICTION. Pasturage : — Vide JServiti de. PATERMTf: : — A natural child should be left with its mother during the lirst years of its infancy, but afterwards the father has the option of taking it. Dubois vs. Jle/ictt, S. C, 7 L. C. J., p. 290. " : — Vide Action en nficKA ration. Patrone :- -Import of the term in the Mediterranean States. Tiie Scotia, p. 16G, S. V. A. R. Pelerin : — Vide IIotelmer. Penalty: — Tf any act be prohibited under a penalty, a contract to do it is void. The Ltidi/ Seatoii, p. 263, S. V. A. R. " : — IVr/e Agricultural Act. " : — *' Criminal Law. Peremption d'instance : — 1. A petition claiming the peremjHion d''instancc ought to be accompanied by a certificate of the clerk, establishing the date of the last proceeding. Les Ikivics Re'A^ieuses Ursulines and Botterell, Q. B., 1 L. C. R., p. 89. 2. The peremption d" instance, will be interrupted, even alter the tiling of a nu»tiop (or a rule to declare the instance jicrimee, hy the service of a notice of motion by the plaintiff. Dinning is. Bates, .S. C, 1 L. C. R., p. 109. And the peremption d'instance may be covered by a valid proceeding before any ji'dgment has declared the instance jierimie. Beandry vs. Piinguet, 3 L. C. .T., p. 237. And a notice of motion for peremption dHnstance does not amount to a de- mand of such 2^eremption, and it is competent to the opposite party to prevent the effect of the peremption by taking pro- ceedings in the case between the giving of the notice and the actual making of the motion. McDonald ^ al. vs. Roy, PER 215 Peremption d'instance : — IS. C, 3 L. (;. J., )). 30'2. But contra to this and to the pre- cedinj? case, vide Farman vs. .loi/dl, S. C, 4- L. C. J., p. 128 ; and 10 L. C. J., p. t20 ; also Ck irlrLois vs. Bustien, S. C, 6 L. C. .1., p. 2*.y.i ; and Dclicaujcu is. Masse, S. C, 7 L. C. J., p. 105.* 3.* A motion for peremptinn (Vinstancey praying that the action may bo dismissed for want of proceedings, und not asking that case may he dechircil phimce is irregular and will he rejected. Peck iV al. vs. Murplii/ I'j- a/.,(ind The l\I(ii/o)', t^-c. of the Cifi/ of Montreal, T. !S., tS. C, '2 L. C. J., p.iin. 4-. Peremption dHnslnnce will not he allowed in the ahsence of the original record. Turner vs. lioi/d, 8. C. vJ L. C. .1., |). 96. Hut it will h(f allowed notwitliMimdiny: the ahsence of a portion of it. Cliapman ^' at. vs. Aijlen, T<. C, 1 L. C. .1. 1> 2«4-. .'). Piremptton d'inst'ince miide in the names of three at- torneys, one of whom is dead, will he rejected. DcBeauJeu vs. li'xlr f/uc, S. C, 7 L. C. .)., p. +3. The motion should he made in the names of the survivors. 6. An interlocutory judgment which suspends proceedings while in force, interrupts tlie time necei'Snry for acipiiring the peremption d''iHstance. Anhamhaidt and liusbij, l^. B., 9 L. C. R., p. 219. Also, 3 L. C. J., p. 222. 7. And when one of the defendants dies during the pend- ency of a suit, the time lor j)erem|itiou ceases to run during the 3 months and -tO days allowed the heirs to deliherate. Mc'idi/ S- a/, vs. Hrrrard ij- (d., 8. C, f) L. C. .)., p. 331. 8. 'i'he death of one of several defendants extinguishes the mnndat of his attorney ad litem. Ih. 9. Jiut civil death does not stop peremption it not having heen signified to defendant hefore the motion lor peremption. DeBeaujeu vs. Masse, S. C, 7 L. C. .J., p. 10.5. 10. The time for ac(juiring jr?tvt'»iy)^/V;/i d'instance is n"t in- terrupted by th( (If fendant ceasing to he representeil hy his attorney. The yew City (las lompanij vs. MccdimnelL 3 L. C. .1., p. 283. Jiut it is mterrupted hy the death of plaiutilC. 2\itc 4' al. vs. McNeven, S. C, 4 L. C. J., p. 148. 11. The time necessiry for acqiiiriug perempiiou is not intercepted during the vacation e;\teiKliug from the iOth .Iidy to the 21st August inclusive. Benoit vs. Pelofpiiu, H. C, L. Fw.,p. 31. ♦ These fmir rHpurt* >five rtyv fn proiil icirtTliiiiily us in ihe linn* wln'ii, or Uie singe of lh« prooeediiics al wliii-h. |iliiitiliiriiiay iiil«'nii|il t\tf /n'n hi/ukjh itUnnlditir. By Ihe lii>l, (Iccided ai IVi'eii.UT, IS.")(), iirc-t-iii IJiiy. ."^miili. miil C. MoiiiN Ifl, J J., il was lieltl that a mot Ion (br ilic riilodorv not jiieMvii piHiniiii liuin iiiii'rrii|)tiii!rilie j^'nitijiiimi. But on liie 29lli May, \'>'>\i, in the i-aoc <•! Hi'iu.ln/ rs. t'lmmul, C. Moiidelel, .l..('i'clded thnt plaiiitiir iiMulii iiiifriiipt tlie jicit>in]itii u liy any nit i pil.ineiil declarilifi ihe iiDtmnr i>eiiinie. It \vii.« iinpo>Ml''i lo ko iiiilhi r ili.in lhi> In the .•>iinii' diie' - tion, and in MrDoiiald x\- al. vs. iiiv//,dtcided :ittlh S-p'endHT, ..vV), Bail^leV, .1-, dPildt I that between the ifivinsr notice ot motion Hn. Bates. Tlie quectloii however was not siilii'reil to rest there, for on theSiNt Derendiei, 1S59, in the f'n!«e of Faman vs. .Toyal, liail^hii. J., referrln^r to ihe '■ase o( l!i vs. Plittguet, lield that plaintiH' could not inteiriipt ilie perriiijiiiiiii alter st-rvice ol iln; rnle or even after service ot' notice of motion, li isi liowever j)roj)ev to add that Fanian vs. .lo/j I is confirued by the caseb r«i)orted since. *«i 1 ' '■ i ^ > R '": M i m t 216 TEH to V K W Peremption d'instanck: — 12. Pircrtrplion d'in.^tutice Iioh ulwnys been alloweil with costs ill t]ic Sintcrior Court in IMoiitrciil. Moii^icnn i^j- \tr. v^, Turennr, S. C, I L. C. J., p. 201' ; Clniiwittti ^y ul . rs. At/hn, lb, / (J(ire tj- al. rs. (lUfstj, Ih. IJiit n dilltTont ruling liiis pre- vailed ill (^iiel»ec 'I'licri' tlie Court held, in tlu; case ni Fournicr vs. The Qucf'n: Fire Jiisurance Cotupani/, 6 L. (". R., p. 97, thiii in lurrvi])) ions iV insttincc encli parly shouhl pay his own costs. IJiit the ciise oi Clorc A- al.. (tml Llitiiii ImviiiL: been taken to appeal, it was held in tlie i}. ]J. that in a suit jn/itmr the plniiitilfniay bo coudriniied to pay costs, whirli are in flie discretion ol' the Cmirt, S L. C. 11., p, ir>l'. Ah > lU'Uleiiiy rs. (liiKtirr, S. (-'., II Ij. C. II., p. 4r)4', il was iu'ld tliat costs will not be given where cause, on allidiivit i«. shewn liir not awardinif costs, and ;') L. C..I., ji. 'VM. Ww in u case ilicidcd in the S. C. at (Quebec, it was held thai in cases where perrmplion (rinsttintc is grniiti'd no costs Will lie awarded. Tiirnir rs. Lntuas, S. C, 10 T^. C. R., p. 3S-. IM. An opposition is subject to pno/ijiJan (rinslaiii i. lihtvhliuiii. rs. }\'ii//:if t(//tf UV'/Zw, opposaiit, S. (J., 3 L. C. .1., |). I!'r». Hut in e.\p. lui/irrfson o/if/ I'ij//(Mi: i)' al., \l \\-.\> held that perein]>ti>)ii will not he granted at the iiisstance raisi'd by an (ip[K>sition to a ratilicalion ol tith-. !S, C., 5 f^. C. .1., p. ir)(),aiid II r.. C. II., o. '2S,'). A dcCeLdunt cnnno' have li;.'^ deliiiilt taken oil' in older to demand peremption ot instance. Cmifri/lr rs. Lcrar mid i.trar, .S. ('.,(» L, (,'. .!., p. 'Jfiil. 14. Hut where a deii ndant has appeared but tiled no con- trstution he may obtain ^;m'//'^j//Vy« i/ i fist. Dice. McJjurn vs. Cv/lin. S. C..7 L. C. .1.,]). 117. Viilc Halt vs. Valli res dr St. Hi-/, 2 Rev. d<> TiCg., p. :}!!». Terlsiiablk I'kkimts: — 'I'he ^■lleril^may be uiitliori/ed to sell pi'rish- nbloellects imder seix.nre in his hands. Waitrle rs. Vrrriiii/t, 3 ilev. de Leg., ]». ',i\)l. Hut in ii more r« cent case of Lc- r,//(//r vs. J'lilie urid Piihr, it was held, that the Ct,iiMt eonid not Older perishable goods under seizure to be soUl pendente lite. S. C, 1 L. C. .1., p. ir)8. Ter.iury : — A charge or])erinry does not give ii right to suspend the ai'ticni, in which tiie perjury is alleged to have Itecn coni- iiiilled, until the criminal charge is settleil. Forlier (i. Merc.ier, '^ Ilev. de Leg., p. \W.\. " : — Vide .Ilrors. i'nusoNAi. A.Nii HvHuTiircAuv Arrio.N : — Vide rRESCUtPTiON. I'kksonm. I*a mack :— IV/A' Mamac;!;. Pr.iisoNAi. W ROM.s : — Vulr I)ama(;e. I'iniTioN or Rkiiits: — Vide I'iif.sckihtion. I'l.MTORV Action : — Vide Action l'f:TiToniE. I'kw : — L The eldest son of llie concrssionnoire of a pew is entitled to have it, ui)on the nmrriage of his father's widow, at the price ut wliich it may be mljudged to the highest bidder. Home. rs. Wilson t\' id., .S. R., p. 13.'L 2. Droits lioiiifriji'/iiesy such as the use of a pew in a church, \\\iv. oniy graiitc il to seigniors in their qnality oniautsju.i- ticias, as one of the attributes of tlie power they held aud of the jiirLsdiction tliey exercised ; and by the effect of the conquest the jurisdiction which they exercised having ceased, r !•: w to r T L 217 Utifled at the •idtler. Pkw : — ttiul tlioir |ii(liiMnl |K)\vor Imving become extincf. tlicy litiv.- ci'usfil to hvi cnlilli'il to those riphls. aiul nu' |>nrticularly to pews in ehiirchcs. Litntr i^ m' . m. La l\./-i(jiie dt Sf. rascal, I \i. C. II., I). 17fS. lliif ulfhfmgh the Nti<;iiior is nut now enlillfd to the (n-e wsk of ii pew in rhnrch us hant jiisttcicr, lie may ehiini it us piitren, it he lias <:rante(l the liiiul to Ituild the cluirch, ami if he has a tith* to that elleet. and the possession. T/if iUirv and Ah'>L'iii//trrs dc la jia- roi.ise dit Cap St. l^nitrc vs. liraithitn »\- «/., V L. C. U., p. 3'il. .'J. Tho covenant in the hnse of a pew in a ehureh, hy wliieh c»)Venant if is afireed, that in ilelimlt of payment nt the riMit to aeeriie at the period Ijxed hy the law, siieh h'Sivr will inuni'ilial'dy l)i>e<>iu<' nidi and void and nj no etlicl, and that it will lu! lawlnl to the lessors, rirthwitli to take posses- sion of the pew leased, anil t<» |iio;'ced to re-let the sanw, wilhont, licini; hounil to ;;is'e any notice thcreoi to iho lessee, is not a covenant whiidi will he reuarded as a rlansc vnhi' wiiiiihiirc, hnt as a eoveiiiinl the fxepntion oT whi(di will ht.' enlorecd. liitlnird and. ha l^dniijiir dt (.^nt/.>c. ^i- \l,, i) L. C. 15 1' ■I. Tie' piir|)(.s('s for wliieli a | )('\V is hecn iisi ew illeually sold m granted, t-an he presiiiod over hy the Cart, /I'fvV/ and Li' Ptdntfjiir lie Cliatcauiiuaij, <^ H., ti L. C It., p. -IH). •' : — Vide UoMri.AiNiT.. rri,OTA(.i'. : — Vide Phivii.kue. I'li.or:— I. TI.s lion on sliii.. 7'Ar J'rcniin; ^^ A. ('., ti T,. C. W.. V ,93. 2. A pilot in cli!ir<^sfl is iiitilleii to n niniit'r.ilKni from the owner, in addilii ii to the usual pilot,. ^c, ii>r loss time, and I'or .'•ervices rendi'ml in sa\in,'z sonie of the spai> and naiiiii''' ot sneii vrsso ea rried away owam' io tiie defective; (jiiality of the luat'-rials u^ii}. And wliero owm of sueh vessel ohtains intlircctly the amount of siieh pilot's claim from the uialerwriters, the pilot will recover from the owner in an action h>r '* work and 1. hor and loss of time,'' allhoiljjh tlioro !)e no eoun! in the declaraiioii [ijr money lint and ree 3. A eived R II Ufsril r.i Par/.r. S T.. C. W V oo(). dot IS a luariucr, aia ;s si!>*li nuiy .sue for ni> j)ilota;^e in the Vice-Adniirally Court : (sei 2 AVill. 1, c. .^1.) J). 4, 8. V. A. Jl. 4<. A pilot w ho has the .steering (d a ship is liahl<> to an action for an iiijiiry done hy his jiorsonal miseoiuhu't, although a superior ollicer be on hoard. 'J'/n Sophia, p. S'b. S. V. A. R. Damages occasioned to the ship hy the nii.scondnct of the pilot may be .set oil' against liis claim lijr pilotage. ll>. 5. In cases of i)ilota. The jurisdiction of the Court is not ousted in relation U> claims of this nature by the Provisional iStat. 45 (Jeo. 3, c, 12, s. 12. 3. 7. C)\vners of vessels are not exempt from their l<'ga! responsibility, tli()U!;h their VfsscI was under thi' care and niauagoment of a pi let. T/ie Cionho/tntil, p. 7.'), S. V. A. It. vS. Kxclusivi' duly oi' pilot in charge is to direct the time and manner t)f bringing a vessel to anchor. T/ic Lord Jithv liiissc//, p. 190, S. V. A. U. JMIot having control of siiip, not a competent witness [in' such ship without a ri'lcas(\ Jl,. ^hip held liable liir collision nutuithslaniling tluTC beiiiL; a pilot on buaril. Hi. P. Ua\ iug a pilot on l)oanl, and aitiug in conlbrmity with his liircclidus, docs not diseharii*' rcsjuiusibiiity (>r owner. Til'- Crmlv, uolc, p. Iftf), S. V. \'.\\. 10. A pension grantcil tti decayed pilots, and tothe widow> and children of pilots, \'\^u\\ the (uuds established by the 4r)th Cieo. Ill, c. 12, sec. 11, cannot be sei/cd. l.clUirr k\ (d. vs. Bni/larga>/i, .i L. ('. U., p, 420. Pilot Acts ; — The Knglish cases by \\ lii<'h the oM'uers are exeniplcd from responsibility w heri- tlie fault is solely and exclusively tluil of the pilot, not shnred in by the master or crew, are based upon the speeinl provision of the Muiilisli I'ilotage Acts. T/w Ciiminhnid, \\\ note, p. ?<1. S. \', A. R. Construction o( the Lower Canada Pilot Act, (1;") d'eo. '{. e. 12.) //;. Construction of the F.iverpool I'ilot Act. Ih. Coustructit)u of tlu' Pennsylvania i'ilot Act, p. 17iK ///. The provisions of the (Jeneral Pilot Act of I'higlaud, (G (mh). r>, c. 12;'),) p. S2. 111. The whole of this Ad is repealed 1)V * The i\lerchaul tShijiping Uepeal Act, 18.')4.," (17 and IH Vic. e. 100.) Limifalion of the liability of owners where pilotage is CiUiipiilsory, re-enacted bv the *' Merchant Shippiug Act, lH.n4," (17 and IS Vie. c 1(H, s. 388.) Applies to the riiited Kinjrdtun only, p. 33S. Ih. PLEAni.NG AND I'liACTU'E : — 1. 'flu! signification given under the .'{ Wm. IN', c. 1, commonly called the Fitssor and Lessees Act, sliould be given by the ISherill'of the district and not by a liailitr. The writ may be in I'.'nglish. The .ludicatnre Act "> \'ic. c. 1(), has ill no way modilied this exceptional proc^-durc. ncfi'if vs. Jl(ul, 1 lu'V. de liCir. p. 3SI. (I'lnii/ vs. Jjrf'f/vre,il>, p. USL Murjilnj vs. MAIi/l, ih. .'^Sr>. Miutohx rs. liifun, ib. G/ackoK ;i-r vs. D\0 sterling, notwithstantling the 4 Vic. c. 20. * The Lessor and Lessees Act now in ibrio is Cap. 4S, C. S. L. C. P L E 21t> rLEADINC. AND PrACTUK : — Delerif and Lnaieux, 3 Rev. do L^^., p. 402. But District Courts estnbli.slutl by 4- and f) Vic. c. 20, (repenlcd.) liad nut jurisdiction in liypollieciuy actions. Talnu vs. Cloutier, 3 Rev. d(! Leg., p. 40;"). 3. I'ndcr tin S8 and 87 sections of the .Statute of the 12 Vic. c. 38, sec. 87, [C. S. L. C. cap. 83, sec. 78,] it is suf- licient in any ploactinii; tt) alk'i>c the liicts upon which the jnirty mcai s to rely in |>hiin and concise hmiiiiuge, to the intreprelation ol' which tlie rides of construction applicable to sui'h languajxe in the ordinary transactions of lilc may apply, and no special liirni of words is necessary to express the same. Ihilno (iinl Dr/rsifr/nicisJ}. li..*2 h. C !'»., p. 32"). " : — Action. — I. .\ negatory net ion is a propor rcMUcdy for a party to tak«' to have his lands declsiri'd free from municipal nites illeirally imposed iind to oblige councils to desist Ironi the sale of his lands seized for such illeyiil r.iles. M' l)oi'// (ukI llif Cm partition of llic I'tinsh n/ St. /!/iliinn f/'lptmi, <^'. Ji., :y L. ('. .1., p. 'J*J!t. 'J. In a petitory action elaiminir l;in(l under diu-d of llie 2lst .January, IS.")i), di'IcMdiint. pleaded lh;it he w:is in posses- sion for more llmii ten yeiirs previous thereto. ]'>\ speci;il answer llie pliiiutiil'stt upimterior titles, it Wiis lu-ld in the t^>ueeu*s rxneli, lluit the parties must be put out of Court each p;iyiu<;' his own costs. — Isl. Uecause phiintill had not j)roved the tilli- set up in his d( (lantlion. — «nd. Ueeausi* deleniliiut's |i|ea set up no adverse title.- .bd. lleciHise the issue between the parties was irrei^ular, inxl they I'Uuiit not to have been peruiitted to go to evideui'e upon il. < )si:ihmI and hrl/aniAi. \^., H) L. ('. K.. y. 'I'l. Ami where a lille lia.-^ not been pleiided it eiinuol be jaoibiced at oujiii'lr, :is a part -'if a chain of titles. Hdistiu mid. Il'r///.l^>. H.. ti I,. ('..I,, \K 78. And VI L. C. R., p. i)S. 3. The heir may proceed liy the pel ilory actjeii liir tin recovi-ry o(" iuuiu)vable jiroperl v iippiTlitmiui.' to lliee>i,ite nl liis lather and mother, eviu ih^iuuh sucli immo\ab!e pro- perty should he in the possession of a third p:irly el.iiniing an umlivided iiortiou of the >\\\\;c, n lilrv dr ilinun, ,\\\\u\ \\ is not necessary tliiil the heir .sliiHdd jiroeeed by llir ;ietion en pailaiip. Connou is. OW'd rf nl .. S. < .. I I,. ( . 11., (.. 160. •l-. A plaintilf who has brouiihl he- : etiMn in ohii^e d- hciislaAi. ii.. <> L. ^- li.. p- l^''- (). lii an action tif damages, acts ei inmitted by a person iii his private capacity eanno'. hi- joined (o others commitled in his capacity oi .Instice ol the Teace. O'iVr// tnid Aiira/erAi- 13., 9 L. C.ll., J). U2. 7. Wliere a statute limits the time of bringing an actiou against a custom-house oflicer to three months, the Court will allow a pluintitr, who has onii»'.ed au essential allegation lu I 220 PLE li Pleadlvg and Practice: — his ticclnration, to amend after three months have expireil on payment of costs. Bressler rs. BcU, S. C, 4 L. C. K.. y. 101. 8. In an information at the suit of the Crown, ft)r gooiN seized at the Custom House, the allofrntion that the - tom House regulations. And the omission of the woni'- " agiiinst. the n)rm of the stntute." is llital. T/ir So/iri/o iirncnil vs. Tuv cas/cs of Planes und lkuiin assault of wiiicli hi- colapl!lill>^. L'lviotlir (!/ul Clu'ca/irr it cL, <^ P,., I L. C. Iv., p 1(10. 10. Enaction of ihiiiingis against srvcral, chiirged wit); breacli of contract to convey a rait, caiiiiot he disniisse(| i ii \\ (lifcns-' (III foiidfi nt c//y>/^, although Iiy tlie conclusions it ;< jirayi'il that the (lefendaiits may he ''oi,d(>i:inc(l jointly lui.l sevcmllv. Raimrr vs. Citiu,dicr cL a/., S. (J., f) f^. ('. 11., i. 180. " • ' 11. In an action by a llailway (Company against a stocK- holder lia' calls, it, is siifiicient l<»r such company to state ir. tlu,' caption of the (leclaiMlion that it is a hody politic an' corporate, without a specilic allegation to that elfect. Tn Sai/if Liuri-ritcr a ',1 Ottitira Ruilro d Contp.un/ rs. Fiotltiiu- h m (I. id., S. C.,r> L. C. 11., p. UO. J'2. in an action by a shareholder in thedrand 'I'nnii; Pvailway Company, against the Company for refn.sinL; '•', register a traislcr of his shares, tlu' allegations that ijc tr.,nsfcrees had (ifK'red to surrender such transfer to tli. comjiany and had demanded that the company shoul ! transfer the shares on their books, are insnflicient to mer' the rcipiirenieiits of the company's chart(M-. Wihstn- > s. Thr Urand Trunk Uaiiiray Conijiavy of Canada,'^, i! ,,'2 \u C. .1., p. ^91. Rev(M-sed" in ajipial \i L. C. .i., p. 1+8. 13. In an action on a Policy of Insurance. in which there in a misdescription made by the agent of the insurers, it is ne' lu'ces.sary in the declaration to sot up tht^ right description or the <'rror allndi'd to. Somrrs vs. T/ic AfJirnrrnm Insiodi"-, Suc/c/i/, S. C., 8 L. C. .1., p. G7. H. An action against a husband and wife merely settint: tip 11 debt due by the wife previcms to her mr rriage, and the fiu't of the sub.seqnent marriage, will be dismissed upon the wile pleading that she was sued as annmune en liens, whilst in reidity she wns separec dr Urns hy marriage contract produced. Ga'^nitrvs. GrevierctaL,ti.C., 6 L. C. II., p. 48.'). Also, Wheeler et al., vs. Burldtt et al., i<. C, 4 L. C. J., p. 309. ^ flSIOUlf' PLE 221 Pleading and Practice : — 15. In an action to compel the defendant to send back the plaintiff's wife alleged to have been enticed away and harboured by the defendant, her brother, it is no defence to set np the bad treatment, personal violence and threats to his wife after action broiiirht, or a general allegation that the wife wrs ob!ig(Ml by the scvices of the plaintilf, lu take rc'dige with her brother. C'ldsse is. Jlcrviruz, S. C, 6 L. C. li., p. 73. K). In an itetinn for infringement of Patt nt for Lower Canada, the aileiiation of an infringement " in the comity of" IVbintreal," is snllicicnt indication of the |)lace where the infringement took i)UK'e. Pn irse vs. Panuc/n, H. C, 2 L. C. \\., J). 311. 17. A note payiiblf to order, liir vahie received, may be considered us a note in writing, and it is well described in declaration as a writing obligatory or hon. Hull vs. liaid- I'Unj et (U y 1 llev. tic Leg., p. 180. IS. An action against an eiidors(n- of a promissory iiotL-, payable m three months, setting iij), by error, that the note was made on the lllh of .inly, instead of the IGtli, and that it was ])rotcsted on the 19!h October, will be dis.uissed ou demurrer, and the allegation that llu; endorser jiroiiMscd to pay after protest, will not covi r llie objection. IldliwcU vs. Mnllin, S. C. r> L. C. .1., y. 7(i. 19. A declaration which sets Ibrth that •■ the (leliMidaiits under tiie iianu' of A. iV Co., made ilu'ir certain promissoiy note," it will bi> held aood on lieninrrer, though it ap|tears that the note was made by the wife doing business as A. & Co., and that the husband was tliere only to authorize his wife. Ailams vs. [•!>nnn!.:s •■( af.^ S. C, 13 L. C. 11., p. 7S. 20. The conditions of ,>n hypothecary action must demand that tlie land be f-old in the ordinary course and not simj»ly. Plait et al., vs. Piatt et al., tS. C, 1 L. C. .L, p. 1S3. " : — Declaration. — 1. It is not necessary that the declaration annexed to the writ should contain the domicile and addition of the parlies. f'i(g'/ "nd DDiinhvc, (,>. IJ., 11 L. C. U., \k 421. 2. An agent cannot sue in his t^wn name, even where there is an exjiress agreement with the defendant tliat the action shall be so brought. Nesldlt et (d. vs. Ti'riscon ct al., 2 llev. de Leg., p. 4'3. But tlie cashier of a bank may sue in his own name to recover a sum due to the bank. Ferric and Thompson, 2 Rev. de L6g. p. 303. 3. The prayer of a declaration which claims a sum m iigures, will be held bad on cxccptioH a I ' /(/rme. Rivet vs. Poisson, i<. C, 11 L. C. R., p. 493. 4. A declaration may be amendetl at any time on payment of r>Os. costs, without jirejudice to the evidence, and with power to defendant to rejjlead within eight days, wlien it results from the proof that the allegations do not correspond with the facts proved. JJoudreau vs. Lavender, S. C, 2 L. C J., p. 194. 5. A plaintiff on being allowed to ameiid his declaration, after exception « /a /wrwtc tiled, must jniy the full costs of the action up to that point. Boudreau vs. Ilichcr, S. C, 6 \ rrrr^i I i 222 PL E ^^ w m Pi.EADiNc; AND Practice: — L. C. R., p. 47+. And whenever the amendment ismntcrinl nllcr issue joined, he must pay ilill costs. Syme et al. vs. Jloioard, 8. C, 6 L. C. .1., p. 311. 6. A clerical error in a declaration may be amended at the iinal hearing on the merits. JListie vs. Morliind, S. C, 2 L. C. .1., p. 277. 7. And so also it was held in lh(5 Q. IJ., that the Court would Cdrrect a clericiil error, liifoihdu and Lrfr(i}t<^iiis, 12 L. C. K., p. 2"). Hut a decliuatiou cannot be amendiul by reason of a fact which has occurred since the institution of'th'! action. Marsoliiis T.s.Lcsa^c, 8. C, 1 Ij. C. .1., p. 4C. Nor will amendnuMits to a dechiration be permitted so as to chauirc the nature of the action. Lam/it' and Munn rt a!., Q. li., ti L. C. .I.,p. 2S7. 8. And by the practice o{ our Courts the i)laintiir hiis always a rij^ht to plead dr iinro, loan amended declaration. iManii cl (i/. IS. /jumfjc, 8. C., (i L. C. .1., p. HOI. JJut it tlu- anienilment be the correction of a mere clerical error which could mislead nobody, and the case be p.r jxirte, the delcnd- aut will not git costs, nor will he be permitted to plead. Fiathitfislidm vs. iiilhert, .S. C, 3 L. C. .1., p. 136.' i/ 9. A writ of summons may bt; amended as well as a declaration. 'Vlic BanUof Brilisli Sorih. Amrrica vs. Tuy/or, S. C, 1 L. C. II., p. 39i). Hut a varianct^ between a wiii ttf summons and a coiiy, is a luiUity, which cannot li-- amended without the consi'ut of the defendant ; and in such ca.se it is not necessary to inscrih ■ en faux against tli" bailili's return. Tlirl)rr C, 3 L. C. .r., ]). 13S. And an error inadvertently made by the 8herill' may 1>'.! amended. Mo/snn rt c/. and BunDUiiii-^. Q. B., 9 L. C. 11., p. 217, and 3 L, C. J., p. 220. 11. A declaration and writ of summons (iled in the Pro- thonotary's otliiv, without a relurn ol'service, cannot siippor" a pUa ol Iitispe'if the actieii. Coivnn ? s. Du//ing, .L. 11., p. 10"). Ami a preliminary plea tiled on the (ifth day, the fourth ilav lieinga Sunday, will he rejected on motion, //m/- rf. a/, rs'. Th hrr'^r, S. C.,'!) li. C. 11., p. 'J.SI. And where a motion has been made to <|nash a writ, which motion had been taken rn ile/il>rri\ and dismissed as not be- in i;' the proper mode ol' iimi-eeilinji', alter the lour days, a!- loweil by Iti Vie., e. IJM, see. 21, [C. S. L. C, eap. S:i, see. 1'2.] to (ile preliminary jileas, had expired, it was held tlia'.. the delendanl was pri'eliidrd liom liliii^' an exei-plion (/ /'a forme in elli ct, setting- np the same matter sis the motittn. ' M(icfranted, ami defendant lias tiled a preliminary plea, ])laintin' will not be ;il1owed to proeei'd to a hearing on such preliminary pica, until security has been given. Eaatnn r.s. li'e/>so)f,S. C., .') L. C. 11., p. 34-. And the four days delay to file preliminary ]'leas, do not run in vacation. Uttn/li rs. The Mmitrenl o.nd Uylova luiihcn/ Coinpnnj, S. C, 7 L. C. .1., p. 291). 2. A motion to reject an excej)tion A hi f>nne (iled too late, will be granted adcr is-iiu; has been joined by mere lapse of time, in virtue of the T.^th sect., cap. S3, (\ S. L. C. McDomikl ct at. is. Gamh/e, iS. C, 7 li. C. .1., p. 77. 3. The exception of discussion is a dUatory i)lca. Ni>'>'l et «/., rs. Von E.ccter, S. C, ^ li. C. J., p. i(i2. 4. Th(! exception of discussion ought to be decided before the pleas to the n^erits. Ciinniv<^hamft al.fVs. Fcrrie et «/., 2 llev. de. Leg., p. KiO. ;'). When a sui^ is })eiidiug in the Admiralty against cer- tain goods, sei/eil a.s lorieiled, and an action of trt^spass is brought against the ■-■i'iztirs, for the illegal sei.?;ure of the goods, the delendants may, by an e.cceptlun dilatuirv, claim a .stay of proceedings in the latter case, until the former is de- cided. Ihirtshnriic el oL, vs. Scfif/ et a/., P, 11., p. ;"). And there is no appeal from a judgment on an exception tending to (jbtain the susjiensioii ot procedings until a decision is rentlered in anolht'r cause between the same parties, on similar matters. Vide !'/«. Ai'it.ai.. G. Wlien an exception t/tc/i/iiifoirehaHhoi^n filed requiring proof to .support it, and plaintill", instead of inscribing for cn- (jU'te, iiiscrdied !ur hearing,' on the nuM'its of his exception, the ("xception will be dismisseil fiir want of i»roof. EiHutt. vs. liastien ct oL. S. C. 2 L. C. .1., p. 202. 7. The inscription for hearing on th(^ merits of an exception declinatoire, is reguhr where there is no answer or replication, the issue beiugciMnplete without it. liichnd vs. Tiic Cham- plain and St. Luirrencc Railroad, S. C, 6 L.C. R., p. -tSO. ^ I ,.. ,1 224 r LE Pleading and Practice : 8. In the case of Jacques vs. Roy ct iix, 2 Rev. de L6g., p. 38, it wus held that the copy of an exception d lafurme should be certided us a " true copy." Uiit in the case o[ Dnbord vs. (le/tmnn, 2 Rev. de Leg., p. 40, it was held that such certi- ficate was not necessary. 9. According to a fair interpretation of the 25th section of the 1-2 Vic. c. HH, [Con. JSt. L. C, cap. 83, sec. 13,] all pleas as well th'-re to the form, as to the merits, should be filed at one and tlij sumo tinu', within the delay specified in that section of the sfatiilc. T/ir British Fire and Life Assurance CompatnjmHl MvCuui}; i]- a/., Q. B., I L. C. l\., j). \bl. lint iiotwithstandin-jf this case, in Dubc ts. Piouix and Poqxiin if a/., I L. C. 11., p. 3(14-,, 1 he S. C. held that, under the 25tli section of the I'J \'ic. c. 3S, [Con. fr at one and the same tiuK!.' 10. An alliifivit in support ol a motion lor deliy to ple;ul, which sets forth that dcfenihint must search for papcsrs in several re<^islry olliecs and timt such search will occupy him six months, tu the best of bis belief, ami that without such delay he will be nuabh; to prepare bis defence in a proi^M- nianner, will be sulFieieiil. licll ij- nl. vs. Knav'tnn \ (d., .S. C, 13 L. C. JI., p. n-1. 11. AAheti a jTeliminary plea has been filed and the j)lHiii- tilf luis (leniiinded a plea to the merits, imder the 7vind sec- tion of the 'i^){\\ \'ie. c. \\, [Con. Sts. J^. C , e. S3, .sec. 73.] the i)laintill'may fcreelcse tlu.Mlelendant*after the eighth djiy from such demairti, withi.'ut serving the dema^id of plea re- quired bv the -J.'itli .section of the 12 \'ie. c. 38, [Con. St. L. C., c. S3, sec. 13.] MtUill rs. Wr/ls, S. C, 2 L. C. J., p. 290 12. An e:arptioii a la forme filed on the grounds that ;ii the copy of the writ served on the deftMulaut, one of the ]ilaintifls was styled '' Jlickard " instead of " Ricard," will be dismissal on motion. -Latoiir if- cl, vs: Massp/i,* S. C, ti L. C. R., p. -1.83. • ' 13. An c.rccplion i) /a forme in wliieli it is alleged that thi" contents of a )iM])er-writing, purporting to be a C()i)y of -t ■ deeliiration, are different from the contents f)f the original declaration and are' di.seoiuieeted, absurd, and unintelligible^ is sullieient. Doi/fre vs. The Montreal and liytnvm Railivnif Company, IS. C., ;") 1... C. R., ji. 98. 14'. An exception to the efU'ct that there are other heirs must contain the names and place of resideucr" of such heirs, and state that they are alive. Page vs. Curpcntier, 3 Rev de Leg., p. 39:"). 15. On the hearing of the merits of an rjcrptii,,' Ala fornu . it was held that it was not necessary lo sue out two origin;i! writs addressed to the bailills of dillereut districts when i' was known in which of two districts the defendants were, and that a writ addressed to "any of the bailiffs of the * III iinollier rase of /-'^);7«)- «•,«. /•>()/»•/■, floi'itlixl in iliu .Sii|ieriiir Couil, on the 30lli .tunc. 1852, i-epiir'cd in llio iMniiUenl (lazctlr, on a inoiioti \>\ plmiiiil! to lejfti nn fjci-ption a In fnnnc winch \Ue (li-fumliinl lind (iloii conjoiiilly Willi jilens to llic lueril.o, il was lioiil Uiai (•leading to Uie inciils was a waiviT ul olijcitiuii to lorni. Tla- C'.inii liirtliiT nuiinaleil tlint ihis opinion had liern /iequenlly cxpreNscd and thai there wun a deoisioii lo the same ellect HI tlie L, C.K. And the niotii'ii lo reject oxc-cplion was llierelbre grnnlcd. PLE 225 Pleading and Practice : — Superior Court lor tho district of Montreal or Richelieu," is rcgiiliir. Guevremont vs. Lamire,jUs, ij- a/., S. C, 5 L. C. J., p. 253. 16. Whore (lrf«Mi(Innt, a iimrrictl wouinn, is doscrihcd as being separated from her hiislxuid as to pro|K'rly, it is not neccssnry to attiiek the dccl.'iration in r.icrpt/o/f a In ffrtnCy it may be denied as a liict on \\\v merits, and the plainlil! will be n^qnired to prove such allegation, if maferial, eitlif-r by producing an antennplial contraet or a copy of a judgment of se'paration de hieus. ' Wlicelvr ij- al. vs. liurkitt, »|- ul., S. C, 4 L. C. J., p. 309. Also, Gdgiiicr vs. Crevier t^- al., S. C, ()■ L. C. II., p. 4-sr). 17. The mode of raising an objeetion as to the snliieiciicy of the corporate capacity oC a company, is by an p.rcr]>limi a Idfon/ie, and not by a dcfttiHC an foHda ni. droit. The Sfu'/it Ldioroicc iind O/tuiva (jli\unl Jiiiictioti llai/niud Cnnijuiiiij rs, L'r()UiiH.:hifis (id rcsjifh/df/u/uni, cainiot be taken .'ulvan- tagc of by an cxtrj)tiun a la forme. Jinrnn/ rs. ILi/ris, S. 11., p. f)il. 19. .Misdescription of tho land sought !o be recovered ])y a |ietitory action, should In- laken ailvaiilage of by an e.iccplio)i d la forme. The I\oi/; '^ H i 226 PLK l!| I ! pLEAniNG AND PRACTICE: — when in fact lu' resiikJ »t St. Jean Bnptistr tie Roiiville. Gigon vs. Ilotte, S. C, 2 L. C. J., p. \m, and 8 L. C. l\., l>. 271. 24. When jwrties are ini|)lcaded ns deliindanis fn garanhe, under the designation of "contractors and niannfactiirerH and coi>artncrs" with the plaintiffs en gar untie , they uiiiy plead by preliminary exception, that they an* not such con- tractors, Xrc, and by the same exc«*ptioii uttcck the correct- ness of the names and designations assumed by tlic plaintiil> en garnufie, and on proof of the allegations < I'sncli exception they will 1)0 entitled to the dismissal ol the action en garautir. Etlinnnstune i\al. vs. CliildsKyaf., and ChUifs i\ al., plaintiffs en gara/ttir, vs. Clnipnuin ^- al., dcfendiuits en gnrdntic, S. C, 1 L. t\.l., p. 249. Confirmed in appeal, December Term ISf)?, the Court being ecpially divided. 2.'). The (piiility (A' mcnuisier is not irreconciliiible with that iA' e Hire prene III- . lioinhrr and Lenv/me 4- nl., i}. \\., 10 L. C. 11., p. 4r>(i. 26. An e.fcrplion a in furme whieh contains erasures and nuirginal nolcs, nnrcferred to at the bottom of the plea, is nevertheless liood. lUarkiston vs. Rosa, 10 L. C. II., p. 399. *' : — Pleas to the merits, Dennirrrr. — 1. A dt'fvnse on defendant, is sufiicient to support his action on demurrer. Henry ).<. Mitchell, S. C, .') L. C. Pi., p. 489. 4. A defvnsr en droit to an action for a specific sum, a^i tbi' jtroceed < of a cunimanaute between plaintifl" and his late wife was held to be gDod, -the action should have been en •j)arLage. Dujmis cs. Du])uis, .S. C, 6 L. C. fl., p. 475. " : — Exceptions au fonds and general issue. — 1. Pleas to the action must be filed at the same time with the defense en droit. And the Court will not enlarge the delay to plciul until a demurrer filed to a declaration has been disposed of. Pirrie vs. Mcllngh ij- oL, S. C, 1 L. C. R., p. 210. 2. A plea denying fraud and deconfUnre is a plea to tho merits. Lemiug vs. Robertson, S. C, i 1 L. C. Pt., p. 492. 3. The i)lea of a general issue is incompatible with a plc;i of perem{)lory exception admitting the making of a pri'- missory note, or the sale and delivery of goods, and allegiiij^ paynuMit of the same. The allegations of such anexceiition arc necessarily divisible, otherwise no issue can be raiscJ upon it. Mc Lean vs. McCormick, S. C, 1 L. C. R.,369. And in the case of Casey vs. Villeneuve, S. C, 1 L. C. J., p. 487, it was held, that the plea of general issue is waived when it is filed with a plea of payment or of compensation. But I,' PLE 227 ri.EADINC. AND PrAC'TICR: — in Ciarke and Jofinston, Q. B., 'i L. C.ll.,\u \'2\, it v,hh held that an ufiirmativc plea, such as a plea of sett-ofi', might be filed tu^uther with the general issue. And in tlio case of Saraulf vs. Elfice, S. C, 3 L. C. J., p. 137, it was held that the exception of |)ayment and the defense au fond.s en fait, may be pleaded, togethei- and they arc not uicom- patibie or contradictory. ♦. Under tlio 12 Vic. c. 38, siu^.S.o, [Con. St. L. C. cup. 83, sec. 76,J it is necessary in a defense uu funds en fait, expressly to deny every fact allej^ed in the plaintifl 's declaration otherwise such liicts will be bold to Ik; admitted. Copp^ and Copps, ^^ IJ., 2 L. C. R., p. IOr>. f). In an action for false imprisitiunont, the admission by defendant in oni* of his pK :is thai he had caused the arrest of plaintiff, is sufHcient « vidence of the Uu-t, nlthougli defendant has als«i plendcti the jjeneral issue. Monti/ n. liuiter, i<. ('., :') L. C. .1.,]). f)0. 6. The admission contained in u plea cannot be divideil. Holland (Did Wi/son. iS- id., i.},. H., 1 L. C 11., p. (JO ; als) LcJ'ebrrt dit Villeneuve vs. DcMonf.ignt/, S. C, J» L. C. K., p. 2.33. 7. .Sevtral defenilunts cannot appear together and [ilead se|«irutely. Stephens ^' nl. vs. Tf'a/.so;* t^- «A, L. II., p. *^2 ; also liosivell vs. Umja, f?..C., 13 L. C. K., p. +7(). 8. A plea by way of exception will not be rejected because it is ar''unientative,or because; facts are set forth in it which could have been given in evidence under the general issue, (jtvgij and Ferguson, Q. B., 11 L. C. R., p. 409. And n plea in the nature of a justification, in an action tor slander,^ which does not confess the words justified, is good. JIj. 9. A plea or exception, which joins luw and fact together, will he rejected on motion. Addison vs. Bergeron 4* «^-, S. C, 1 L. C. .1., p. 196. 10. A hyi)otheticnl plea will be rejected on demurrer. T/ie Montreal Assurance Com2mny and McGillivraij, Q. B., 2 L. C. .1., p. 221. 11. Pleas which answeronly partof an action and conclude for dismissal of the whole are bad. McDougal vs. Blorg-m L. R., p. 8 ; also Boston vs. IJEriger dit Laplantc, i<. C,-i L. C. R., p. 404. 12. A defendant cannot be allowed to plead specially that. which is no more then the general issue. Payment and tender must be pleaded by way of perpetual exce{)tiou ■pereniptoire en. droit. Forbes i\- al. vs. Atkinson, P. Vi., p. 40. 13. A plea to au action of damages for slander, which repeats, and at the same time offers, to retract the slanderous words complained of, is bad inlaw. ISncl vs. Chabot, S. C, 8L. C. R., p. 211. 14. A plea of payment, alleged to have been made at different times without stating when, will be held bad on demurrer. Les Dames Re/igicuses de Quebec vs. Perrv, S. C. 10 L. C. R., p. 194. 15* I ■> ■ e f I rl. It \i i 228 P L K ♦ i 1^ 'fil rLEAniNC AND PUACTICE : — ir>. Money |)tii(l l)y the (Icfi'iulniit oii .icpomil, diirinp; the pendency oftlio action slionld lie allef.cd l»y j k'li nnd not by inttTvention. Lynuin i]- a/, vs. Prrkius and Peikins, y. C, 2 L. C. 11., p. 304. 16., Tlio purl of ii picn, in nniiction en dednruiion (!•• pater nit v,:y\K\ (or diiiii;i!:(\s, wliicli concliidi's liir trial liy jury. Will !)(' Ntnick tuit on motion. (Uarkc is, UlcC'raf/i, IS. (J., 1 h. C. .T., )., .'i. 17. A plea of temporary exception prmitp/nfre rn drmt, {<• tin action lor llie recovc^ry of Mm- price cf Mile.settin*;- lortl. the existence ol' a mort-iai^e on the )ro;''rty sold, and the tiliiifr ol ill! exeeptioii to letters of ralilioition is a good plen. iy Sullivan vs. Mtiq^hy, f«. C, 7 L. C. II.. p. i'JI-. 18. A jHivty may i)lead the nnllity of a dvvi\ prodnccii a;:<;ninst him, and no direct action nor incidental denuinii i> nipiircd Ibr that pnrpo.se. Ildlcio oiul J)rles(/c//iiri\s, that dnmajres should !)<• claimed by an incidentul cro.ss-deniaiul. B'diilicii is, Lcc, i^, ('., G L." C. U.,p. :i3. 'JO. A pica of liumer recovery Hir the .same oflcnce to u penal action, which docs not set out that tlu; first action had been instituted before the second, is bad, and is no bar tolln action; and such plea will be helil bad oii demurrer. Nn mutter of defiMhsc arising after action brought can pro|)criy bo pletuled in bar of the action generally, bn* should be pleaded in b;tr of further continuance ol the siclion. One action not going on to judgment is no l)ar to another action for the .same otlence. Mountain vs. Dumas, .S. C, 7 L. C. R., p. 430. 21. A (ieclaration nnd writ of summons filed in the Pro- thonotary's ofhce, without a return of .service, cannotsupport a i)lea of litis[)emlence in a .suit and demand containing the same ground.s and causes of action. And a party cannot complain ()f a judgment, dismissing, for reason of absence, n plea by him filed, when the cause was called from the role, after the adjudication on an incident, which caused the hearing to be siuspended, when the case wa.s called a tour de rOlc, Stephens el al. and Tidmarsh, i}. B., <> L. C. 11., p. 3. 22. Litispendence in a foreign state is no l)nr to nii action instigated in this I'rovincc. RksscI ct al,vs. Field, S. R., p. .'^.')8. 23. A shareholder of a chartered joint-stock company, to an action brought by such company, may plead a non- compliance with its Act of Incorporation, and that by reason of such non-compliance the company has no legal existence. The Quebec and Richmond Railroad Company vs. Dmofon, S. C, 1 L. C, R., p. 366. PLE 229 ri.EAi)iN(; AND Practice : — 24-. It'u (iobt which urigihiitud in Knghuid he tainted with usury, Ihu hiw uf l^ii^'Uiiid in rchttiun to this nmttcr ought to be stutc'd in Iho pleu, II(ot ^y al. and Phi/i/ips, Q. U., I L. C. 1\., I). 90. 25. The ahiduvit " that ull the fiicts articuhitod iind sot. furtli in tlu! lorc^oing plcus are, und euchui'lheni is triio and well I'uiinded,^' is not suflicicnt tu support phiis to an action oit a promissory nolo by whicli deiendant dtMiies having' iMidorscd sucli note, such afKdavit not boint:; in ac* cordance with the re(juircn»ents (if the 20 Vic. c. 4'4, sec. 87, [Con. St. L. C, cap. K3, sec. S(».] And the dctendant will not be ullow( d to havi- the ih/ifjtre disehurffcd in order to file the nccMssary nllulavit. Dow is. lirmcne, S. C, IC L. C. 11., p. M2. " : — Answer nnd Ileplicatious. — 1. An objection to the leirility of an ex('(>plion or plea eaiiuol bo raised but by a rcponsem. dniit, conliiiuiiig the (Jeo. Ill, (•.2, sec. 13, [{'oil. St. li. (!., i-ap. Ki. si-e. 72.] Paijuct vs. d'ay'imf, iuxd Forbes IS. Atkinson, S. U., pp. lOfi-l Id. .S. A special iiMswcr setliiiy- out new matter, wliieli nuf^lit oriiriiially to have I ceu iilleyed in the declaration, will be rejected on nioliou iiiid so will a portion ofa special answer settiuf!; nut such new iiuitter hi' struck out on motion. M'd'on/ r.v. 0' /•//////, S. ('., I L. C. .1.. p. ;i{). Hut in an action on a policy of iusuranee. it may be set up in a special nuswer to a plea, alle'..'iu!r a misdi scription. that such misdcMTiplion was due to the an a di (il lo which lie Wiis a party imd \\ hicli deed wouM ddiat his iictioii, set nj) grounds (■(' nullity ajrainst such deed iind a>k the resei.siou thereof, dihI that he asked by the declaration. 7 I.. C. .1., p. -JiM. Also 1). 2!). Iln' uiilliiy ol such (lc'e^ ; also^ The Attorney Cicncral, pro /»c^^, vs. Jjillmu, S. C, 12 I.. C. R., J). 151. 7. A special replication cannot l)e jjleaded to a si)ecial answer where the said special matter in the rei)licutionL could have been iucluded in the plea, and the matter SQ lie (lied by a def-'udant to jMort.so/i rs. KirrzLnnski, appeal it was held that a to an answer conlaining facts not staled in llii; dci-laratioii, and this without oblaining leaV(> from the Court ^ 1 ^ I III :r" I IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 I^|2j8 |2^ ^ Ui 12.2 m |!^ P^ ill'-* HiotDgraphic Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. 145S0 (716) •72-4503 230 PLE Pleading and Practice : — irregularly pleaded in replication will be struck out on motion. Torrance vs. Chapman ^ al., S. C, 5 L. C. J.,P' 75. 8. A replication is unneccessary under the Ordinance of 1785. Boudreau vs. Gascon, L. R., p. 106. But there must be a replication to a general answer or a regular foreclosure to file such pleading. Tidmarsh vs. Stephens ^- al., S. C, L. R., p. 65. But the necessity of a replication to the plaintiff's general answer is waived by consent of defendan' to subsequent proceedings. Greenshields Sf al. vs. Gauthi , S. C, 2 L. C. .T., p. 288 ; and Genier vs. Chnrlehois, S. C, L. R., p. 1. 9. The general answer to an exception puts the defen- dant on the proof of the allegations of such pica. St. Johr rs. Ddisle 4- al., S. C, 2 L. C. R., p. 150. 10. One general answer cannot be pleaded to four separate exceptions, liradftrrd vs. Henderson, S. C, 6 L. C. R., }). 488. " : — Foreclosure. — 1. In the Circuit Court a defendant can fore- close a plaintiff who neglects or refuses to file, within the delay allowed by the Statute, answers to the dcfendant'.s jtleas, after demand thereof duly made ; that thereupon the defoiidant can inscribe the cause on the 7-dle d^ntjuete, aui when one of the pleas is a defense axi fonds en fait, he may declare he has no witnesses to examine, and he can then inscribe the case on the rule d'oiquete, and the case will be dismissed for want of proof. Meade vs. Battle, C. C, 5 L. C. R., p. 58. 2. There nuist be a judge on the bench when a party is foreclosed at mquite. Lisottc vs. Bul/ner, S. C.,L. P^., p. 107. 3. A plea iiled after foreclosure and before any other pro- ceeding had been taken by plaintiff ought not to be rejected on motion to that cllect. Ostell vs. O^Brien, S. C, 4" L. C. .T., p. 122. And pleas filed by a defendant half an hour after foreclosure from pleading entered by the prothonotary, will not be rejected on motion to that cflect made by the ])laintiflj though the latter support his motion by an affidavit that the defendant has no defence to his action, and that the ])leas are sham pleas, and though the defendant do not, resist the motion by counter affidavit to the effect that hi.^ pleas are filed /jon& fide. Molson i^al. vs. Renter ^' al., S. C, 4- L. C. J., p. 299. 4. A foreclosure stating that the defendant forecloses the defendant, &c. is null. A party cannot proceed ex parte until a valid foreclosure of the deflndant has taken place ; and that can only be upon application in Avriting for acte of foreclosure, and the granting and recording of such acte by the prothonotary. And a judgment entered up by the pro- thonotary will be set aside on motion, if the proceedings necessary to give that ofKcer jurisdiction have not been locally taken. Bcanfidd et al. vs. Wheeler, S. C, 5 L.C. J., p.'21.* 5. An application by defendants to enlarge the delay to plead, presented after acte of foreclosure granted, cannot be * It would seem that the motion was made within the 15 days; but if the Prothonotary had not jurisdiction, as the Court held without qualification, the motion might he made at any time before any actual acquiescence. PLE 231 3'leading and Practice : — entertained by a judge while the foreclosure subsists. And the notice of such application, served on the {jlaintilfs, before the expiration of the delay to plead, does not suspend the plaintifF's right to obtain such foreclosure. Miller vt al. vs. McDonald Sf al., S. C, 8 L. C. Pw., p. 303. 6. Where a party has been foreclosed and moves to be allowed to plead, and that there are crntradietory atKdavits as to the circuuistanccs attending the foreclosure, tlic motion will not be granted. Gularncau i]- al., vs. Rohiiaille, S. C, L. a. 108. *. — Articulation of Facts. — 1. A general articulation olliicts will bo rejected from the record as contrary to the law, which re(iuires such articulation to be clettr and distinct. The Molwns' Bank vs. Falhier ^- al., and Fulkncr t^j- al., oi)posants, S. C, 6 L. C. J., p. 120. 2. An articulation of facts which contains nintter n<»t to be Ibuml in the pleadings, or matters admitted by the plead- ing, is nevertheless good. Rouleau vs. Bacquet, S. C, 8 L. C. R., p. l.o4. 3. V\here a party in a cause has failed to answer the arti- culation of facts tiled by his adversary, the facts articulated will be taken as admitted. Owens vs. Dnhuc and Campbell^ S. C, 6 L. C. J., p. 121 ; and 12 L. C. R., p. 399. 4. And a plaintiff having made default to answer an arti- culation of fects filed by a defendant in support of a plea of compensation, such articulation will be taken as admitted under 20 Vic, c. i-t, sec. 74. ArchamUmlt and Archamlmulty Q. B., 4 L. C. J., p. 284. Also, 10 L. C. R., p. 422. 5. But a party will be allowed to tile an answer to an articulation of tacts, even after the final hearing of the cause, on payment of costs, on affidavit that such answers had not been ])roduced through an oversight. Bosivell vs. IJo7/tl, S. C, 13 L. C. R., p. 121. 6. The default of either parly to a suit to produce iiu articulation of tticts, has not the effect of preventing tlm case from being proceeded with and heard. Belangcr nml Moge, Q. B., fj L. C. J , p. 61. : — Inscrifitioiis. — I. Before a party can inscribe on thv ru/r df. droit for heariiig on law U[)on a denuuTer to a plea, he must join issue upon such demurrer by the usual joinder in demurrer. TrcnMay vs. Tremhlay, 6. C, 4 L. C. U., p. 17o. 2. An inscription for hearing on the merits of a plea of prescription, alone or separately from the other [)leadiiigs, is irregular. Mangeau vs. Turenne Sj' al., S, C, 6 L. C. P*.., p. 475. 3. An inscri|>tion for proof and hi^siring on the merits of an exception of prescription and sale of litigious r lihts, is irregular, it being a piirtial inscription, if made without leave of the court. Lionnais and Gui/un, Q. R., 11 L. C. Pt., p. 73. 4. The notice of inscription {ox enquetc and merits together must in all cases be of eight days. Shuter vs. Guyon dit ; Lemoine, 5 L. C. J., p. 43. 9. Notice of inscription for enquete and hearing to \ ■ given to a party foreclosed under the 12 Vic, c. 38, sec. 2.', 1 ' ' i ! i i ! 1 [ \ i i t 1 ; i J II 232 PLE « « ilili Pleading and Practice : — [C. SI. L. C, cap. 83, sect. 13, ss. 2, and sect. 180, ss. 2,] must specify the particular day on which the enipiite and hearing will respectively take place. Smith ^ al. vs. O'Fanell, S. C, 9 L. C. U., p. 392. Vide also Whitney vs. Badeauz and Dutrisac Sf al., S. C. M., 5 L. C. J., p. 128. 6. An inscription on the rdle d'^enqiiSte will be discharged if there be no joinder in issue. The Bank of B. N. Ameiica vs. Taylor, S. C, L. R., p. b8. Also Tidmarsh vs. Stephens, No. 2627, S. C, Montreal, lb. Contra. Tate Sf al. vs. Torrance, ib., p. .^7. : — Vide Patterson vs. Hart, S. R., p. 52 in note. Also Siqna Pleading and Practice, Preliminary Pleas, No. 18. : — Interventions. — 1. An intervening party is entitled to plead to the merits of the action in order to the conservation ol his rights. Beaudry vs. Laflamme and Danis, 3 L. C. J., p. 253. 2. When an intervention filed under the 92tjd section of the Judicature Act, 12 Vic. c. 38, [C. Sts. L. C, c. 83, sect. 71,] does not disclose on its ftce any interest or right in the intervening party, the Court will dismiss it from the record on motion. And a case inscribed for hearing on the merits when such an intervention as the above is filed nnd disposed of, a new inscription will not be required. Seymour vs. St. Julien and St. Julien. S. C, 2 L. C. R., p. 321. : — Oppositions. — 1. In the case of Romain vs. Dugal and Johin, S. C, 8 L. C. R., p. 2'i9. the immoveable property seized Avas claimed by the opposant nr proprietor in virtue of the will of her deceased husbund. The plaintiff" pleaded that subsequently to the will, the testutor and opjiosiint, by him duly authorized, had made donaliou of the jroperty seized on the delendant, 'llie opposant replied s])ceiuily that the deed of donation wns, subsequently, and before the death of her late husband, nsiliated by consent of all parties ihereto. And it was held th it such s|>eeial answer w;is not demurrable on the ground that it invoked a different title from that alleged in the opposition ; that the special answer did not invoke the res liation as a title, but that in consequence of it her title had revived. 2. A contest;iti(>n raiserl between two opposants forms a distinct issue quo ad snob y)arties, and nil documentary evi- dence relative to the issues, raised by the contestation, must be filed by such opposants. and it is nut sufficient that the same evidencti is already filed by other parties to the record. Kelly vs. Frasrr, S. C. 2 I.. C. R., p. 36S. 3. Under the 22 Vie. e. 5. sect. 14, [C. Sis. L. C, c. 83, sect. 117,] and v'3 Vic. c. 57, sect. 46, [C. Sts. L. C, c. 83, sect. 1 IH,] Ihe o])p()sition t«) a judgment rendered in vacation need nor be necomptinied with a deposit of the advocates fees. It is sufficient to deposit the costs incurred from the return of the aetinn exclusively, up to judgment. And the opposant is not obliged to furnish plaintiff" wilh a copy of the affidavit. Gauthier rs. Marrhnnd, S. C, 5 L. C. J., p. 101. 4. The contestation by opposant of opposition of another opposant, will not be dismissed on demurrer, although con- TLE 233 ii Pleading and Practice : — testation does not set forth any claim or privilege on the part of the contestant. Walker ^- al. rs. Ferns, S. C, 12 L. C. R., p. 406. 5. Any opposant may force an adjudicataire to deposit the price of his adjudication, although such opposant has no right to these moneys. Pacaud vs. Dubi and the Syndics, 4-c., S. C, 7 L. C. J., p. 279. : — Collocation. — 1. A contestation to two separate and distinct items of collocation in a report of distribution, interesting different parties, cannot be raised in one and the same paper, and copies must be served on the parties whose claims are contested. The eight days within which a contestation is required to be filed are not juridical days. Ex parte Burroughs, S. C, 2 L. C. Pi., p. 9. And in Desbarats vs. Lagrange and Fisher, S. C, L. U., p. 31, it was held that the contestation of an opposition and subsidiarily thereto, the contestation of the report of distribution cannot be made by one and the same pleading. But this was reversed in the Q. B., 4. L. C. R., p. 805. 2. The costs of distribution of money proceeds of the sale of immoveable property, are not distributed on each lot equally but according to the price of sale. Pacaud vs. Diibe and the Syndics, i]-c., S. C, 7 L. C. J., p. 279. : — Saisie-Arret. — 1. Thider the 95th rule of practice, a contes- tation by plaintiff of the declaration of a tiers-saisi on an attachment after judgment, will be rejected, if it be not made within the eight days limited by the rule. Masson et al., vs. Tasse ct al., S. C, 6 L. C. II., p. 71. 2. A saisie-arrct after judgment cannot be issued into Upper Canada. Mcliemie et al., vs. Douglas et al., S. C, 5 L. C. .T., p. 329. :-j-.*liscellaneous. — 1. A piuty whoso property has been attached by saisie revendication, and who luis obtained main-levee of the same, may proceed ugainst the Sheriff for the recovery of the said goods, ns well by rule of Court in the case, as by action against the Slieiill' to obtain the said property, or the value thereof, together with such damages as may have been suffered bv reason of the non-delivery of the same. Irwin and Boston ct al., Q. B., 5 L. C. R., p. 397. 2. When a i::ar,//r/i in answer to u rule for contrainte par corps pleads ilia! the property is only worth a particular amount, the Court nvaul faire droit should order proof of the fact, Leverson ct oL, and Boston, Q. B., 2 L. C. J., p. 297. 3. Notice of motion received by one of two attorneys after the elevation of one, a jirevious partner, to the Bench, is suf- ficient. Dubois IS. Dubois, Q. Ii., :") L. C. R., p. 167. 4. Petition and not a m tion is the proper ))roceeding to be adopted by parties representing themselves to be the universal legatees of an intervening party deceased whose instance they seek to take up Gillisju'c ct al., rs. Gray and Hutchinson, S. C, 6 L. C. .r., p. 29. 5. When the delay of twenty-five; days allowed by law for the service of the copy of a petition and notice of appeal from the Circuit Court, expires on a legal holiday, the ser- vice thereof may be made on the day following. And it is i I' j i i • ; 11 i Mil 234 PLE .1* I' . .1 >'': •■* Pleading and Practice : — no valid objection to the service of an appeal that a copy of the petition and notice has not been served on the Clerk ot the Circuit Court, nor is it a reason for dismissing the appeal that the copy of petition and notice served upon the respon- dent's attorney bears date previous to the rendering of the judgment appealed from. Vean aful Jackson, Q. B., 5 L. C. R., p. 164i. 6. A motion on the part of a plaintiff who sued in forma jHiupens and obtained judgment, to be allowed to execute m formd pauperis, will not be granted. Uarringtonvs. McCaul, S. C, 6 L. C. R., p. 4.2(). 7. A party who proceeds in forma pauperis, is neverthe- less bound to pay tax imposed by law on proceedings. Ohm vs. Fotstersen, S. C, 12 L. C. R., p. 226. 8. Proceedings m/brwai/7>cm. See CInshol me vs. Ber- geron et al., 2 Rev. de Leg., p. 306. 9. Trifling irregularities in procedure must be taken notice of at once. Tidmarsh vs. Stephens et al., L. R., p. 107. " : — In the Court of Vice-Admiralty. — 1. Tn a hhi\ for an injury done on the waters of the St. Lawrence, near the City of Quebec, a declinatory exception, in which 't was averred that the locus in quo ol' the pretended injury \vas within the body of the county of Quebec, and solely cognizable in tho Court of Queen's Bench for the District of Quebec, dismissed with costs; and decree j)ronounccd maintaining tlie ancient jurisdiction of the Admiralty over the river St. Lawrence. The Cami/lus, p. 383, S. V. A. R. 2. The allegations of a party must be such as to apprise his adversary of the nature of the evi. fence to be adduced in support of them. The Agnes, p. 56, .S. V. A. R. Less strictness required in pleading in this than in other courts. lb. All the essential particulars of the defence should be dis- tinctly set forlh in the pleadings. Ih. The evidence must be confined to llie matter put in issue, and the decree must follow the allegations and the proofs. Ih. The defendant not pleading a judgment rendered in an- other court, waives such ground of defence, lb. Where the misconduct of a mariner is relied on as a ground of defence in an action for wages, it should be s[)ecifically put in issue, lb. 3. Demand for watch, Sec, taken by the the master from the seaman's chest, may be joined to the demand for wages, The Sarah, p. 87, S. V. A. R. 4. In a cause of damage, in which the proceedings were by plea and proof, acts appearing on the (iice of the libel to have been committed at a place which is not within the jurisdiction of the Court, rejected as inadmissible. The Friends, p. 112, S. V. A. R. The practice to be observed in suits and proceedings in the Courts of Vice- Admiralty abroad, is governed by certain rules and regulations established by an order in council under 2 Will. 4, c. 51, pp. 1 to 52, S, V. A. R. PLE 235 P.LEADING ANU PrACTICK : — The Court will require the libel to be produced at a short day, if the late period of the season, or other cause renders it necessary. The Newham, p. 70, S. V. A. R. 6. When the judge has any doubts in regard to the man- ner of navigating ship's course, position and situation, he will call for the assistance of persons conversant in nautical nfliurs^ to explain. The Cutnberland, p. 78, S. V. A. R. 7. Upon points submitted for the professional opinion of nautical persons, their opinion should bo as delinite as pos- sible. The Xia^ara—The Elizabeth, p. 320, S. V. A. K. In certain cases the Court will direct the questions to Im- reconsidered and more definitely answered, lb. 8. Probatory terms are in general peremptory, biil may be restored for sufficient cause. The Adventurf, p. 09, ?^. V. A. R. 9. As to the praeticc of examining witnesses under a re- lease. The Jjnrd John Russell, p. 194-, S. \'. A. R. 10. Amendment in the warrant of allacliment not allowed lor an alleged error not apparent in the acts and pruet'edings in the suit. The Aid, p. 210, S. V. A. H. 11. yuppletory oath ordered in a suit fur subtraction of wages. The Jnsepha, p. 212, 8. V. A. R, 12. Where the court has clearly no jurisdiction, it will pro- hibit itself. 2V,e Mary Jane, p. 2(i7, !<. V. A. R. IS. In salvage cases the protest made Ijv the muster, con- taining a narrative of facts when they are fresh in his; memory, should be produced. The Electric, \i, 333, S. V. A. R. l*. In courts of civil law the jjarties themselves Inne strickly no authority over the cause alter their regular appearance by an attorney or ])roctor. The Thetis, p. SG.'i. 8. V. A. R. The attorney or jn'octor is so iar regarded as the dominns litis, that no ]>roceeding can be taken except by him, or by his written consent, until a final decree or revocation of his? authority, lb. Appeal. Assessors. Attachment. Capias. CoXTEMPr. CoRPORATlOX. Costs. Default. Er«EUR DE DROIT. Evidence. HYPOTIl£(ii;E. Justification. Libel. New Conclusions. Number. Promissory Note. Proxies. Saisie-arret, Witness. (C — 1 'id « « i( — <( « . _ <( « . — _ <: « _ (( « . ^^ « « . _, « « . ^.. (< <( — _. <( « . , « <( (( « « <( •^_ « « -^ i( « ;_ <( « ;-«• « « '^-M « « S^— « II M M il il 236 r o L to p o s '4 , 4 y^ ^::/i. '{i '!,f;,''lf Policy of Insurance : — Vule Insurance. Port: — Probable derivation of this nautical term. The Leo^iiffas, [>, 235, in note, S. V. A. R. Possession: — 1. The feigned or symbolical tradition may supply the actual tradition to enable a purchaser to maintain an action petitoire, more particularly as respects wild lands. A mere natural possession, such as that of a squatter, without title or color of title, raises no presumption of a right of pro- perty, and therefore it is necessary that a purchaser, claiming under a valid title, should rebut such possession by shewing a title in his vendor. Stuart and Ives,Q. B., 1 L. C. R., p 193. But in the case of sales of waste lands, tradition it necessary to convey the right of property, and when tlio purchaser, by private sale of such lands, does not tnkn possession of tho same, such lands maybe legally seized and sold as belonging to the vendor ; and the new purchaser becomes seized of such lands to the exclusion of the pur- chaser, who has neglected to take possession. 2. A partition among co-heirs, duly homologated, is evidence against third parties, of the quality assumed l)y such heirs, and it is not necessary that certificates of baptism and of marriage should bo produced. Mallory ami TItnt, Q. B., 2 L. C. R., p. 345. 3. An allegation ol' possession by a plaintiff, of the land claimed by him is sufficient, in an action of rnntesirande without alleging a possession a,iinule. Stuart vs. Langley d. ft/., S. C, 1 L. C. li.,p. 338. 4'. The possession of a parcel of land required for a mill site, and once formally delivered, is not lost, and an adverse; possession is not aecjuired by sucb parcel of land not being separated from the farm from which it is taken, and a trouhlc ill the po?se.ssioi) dates from the time it is sought tu appropriate it tu such purpose ns would ileprive the purchaser -. Umcin, S. C, L. R., p. 60. But in Mathetos vs. Seneca/.f it was held in the S. C, that * This case, I am informed, went to appeal & was condrmed ; but the Q. B., relrainetl from giving any deeiyon on the question of TaciCe reconduction. r O S to PR K 237 Possession : — the sale of a moveable by a party in possession of it as lessee, will not he maintained, mul that an action by the real proprietor will he maintained against an innocent purchaser. 7 L. C. .1 ., p. 222. And a horse lost and purchased bovdfulc in the usual course of trade, in a hotel yard in Montreal, whero horse dealers are in the liahit ol" st'llin apj)oiiit a new master in his stead. 17 and 18 Vic., c. lUt, s. 240, p. 189, in note. : — T'/VZf Action Petitoire. " AnJUDICATAiaE. Attachment. Pautage. Serment decisoire. Tiers-Saisie. Writ. Writ of Possession. Possessory Action : — Vide Action Possessoire. Posthumous child : — Vide Will. Power of Attorney: — A petitory action will be dismissed, the nota- rial deed to plaintiff of the lands in question being made under a power of attorney, execnV-d belbre witnesses lu England and affirmed before the l...,r\ Mayor of London, produced in the case but not proved, runngton vs. Iliggins, S. C, 6 L. C. K., p. 481. But proof of a letter of attorney executed sous seing prive, is not required where a deed executed by the attorney in virtue thereof is proved, if the principal by any subsequent use he has made of the deed has ratilied it. The Royal Institution vs. Desrivi^res, S. 11., p. 224. " -.—Vide Sale. " : — " Pleading and Practice. Prerogative: — Where the greater rights and prerogative of the Crown are in question, recourse must be had to the public law of the empire, by which alone they can be determined ; but when minor prerogatives and interest are in question, they will be regulated by the established law of the place ' "•' where the demand is made. Tfie King vs. Black, S.li,.,\\ •'V' 324. (( it (( ^ i I '.U fia ■ \ 1 ! (^mj; y ml ! \ ■RfliS ( ' i 't 'HI ' .': w "i f • ll \ ' ■ ;| t 1 J t t /• ) 1 i i ) ,jkMiL-L i 238 PRE K'. * -m :i Prescription: — 1. The prescription of six months under the 8 Vic. c. 25, s. 49, does not apply to actions for jiersonul injuries. Marshall vs. The Grand Trunk Railway Company^ S. C., I L. C. J., p. 6, and fi L. C. U., p. 339. 2. The prescription of six months under the 16 Vic, c. 46, sec. 29, does not apply to notions for personal injuries. Gennain vs. The Montreal and Neiv York Railnxul Cornpanu, S. C, I L. C. .1., p. 7, and 6 L. C. R., p. 172. 3. Damages claimed from Grand Trimk Railway Com- pjiuy, hy reason of the alleged negligence of their servants in destroying the rubbish collected on their line of railroad, •being the linal act of the construction of a portion of tlu- line of railway, are subject to tho prescription of six months, ijnder the 8 Vic, c. 25, s. 49, and such prescription is avail- able to the com|mny under the general issue. Bouchervil/e vs. The Grand Tntnk Railway Com]>any,S.C., 1 L. C..J., p. 179. 4. An action against a .luslice of the Peace for falsn imprisonment, must, under the provisions of the 14 and lf> Vic, c. 54, sec. 8, [C- S. L. C, cap. 95, sect. 19,] be com- menced within six months after the act committed ; and tin; uoticc of such action is no commencement of the action. Laioie vs. Grigoire^ S. C, 9 L. C. R., p. 255. 5. In an action of damages for malicious arrest in a criminal prosecution, the absence of any allegation to the eficct that the arrest was made without probable cause, is fatal to the declaration. Tuft vs. Irwin, S. C, 5 L. C. .T., p. 340. 6. An action against the Corporation of Montreal for damages, resulting from the want of fences and ditches, which the Corporation was bound to make under the act authorizing the construction of the aqueduct for the Mont- real water works, is prescribed by the lapse of six months. Tigeon and the Mayor, jj-c, of the City of Montreal, Q, B., 3 L. C. J., p. 294, and 9 L. C. R., p. 334. 7. The prescription of six months under the 126th article of the Coutume de Paris, and the prescription of a year under the 127th article, do not extend to farmers who raise what they sell. Gagne vs. Bonneau, P. R., p. 39. 8. Servants' wages are prescribed by one year. Bahin et ux, vs. Caron, 2 Rev. de Leg., p. 166. But in Glouteney vs. Lussier et al., S. C, 2 L. C. J., p. 185, and 8 L. C. K., p. . 295, it was held that the prescription of a year under the 127th afticle of the coutume^ only applies to wages or salary claimed by a servant who has ceased to be in the employ of the master during one year. But this case was reversed in appeal, where it M-as held, that the action of servants for their Avages is prescriptible by one year. Q. B., 3 L.C. J., p. 299, and 9 L. C. R., p. 433. 9. The prescription established by the article of the Coutume de Paris, does not apply to seamen's wages. Bar- beau vs. Grant, S. C, 4 L. C. J., p. 297. 10. The plea of prescription in an action for wages ought to be accompanied by a tender of defendant's oath as to payment, and by an averment that a book was kept in which the payments were duly entered. Hogan et al., vs. P II K 239 Prescription : — Scott et al., S. C, 1 L. C J., p. 83, and so also in Bnrheau vs. Gran. , S. C, 4 L. C. J., p. 297, in so far ns regnrcis teiuler of oath. 11. When prescription is pleaded under the 125th artici** of the contume, tlie oalli of tlio defendant may he demanded sur faits et articles. littchanan et al., vs. Cwmack, S. C, 1 L. C. J., p. 181.' 12. The action of teachers in public schools is prescribed by one yenr. Iai CorjMtration of the College of St e. Amie vs. Taschereau, 1 Rev. de Lei>-., p. 112. 13. The prescription of one year under the coutume does not nflect deb's due to merchants, which are not, barred by a less period than six years. .Morrogh vs. Mitnn, S. 11. p. 4+. 14. Di.rmes ure not subject to the prescription of a y<'ar. Blanchet vs. Martin etuL, 3 Rev. de li^'g., p. 73. And Hnoi't vs. Desjardins, S. C, 3 L. C. R., \). 81. But in a later case Theberge vs. Vilfmi, S. C, 3 L. C. R., p. 196, it was held, that the action for tithes is subject to the prescription of a year. But Vide Ajtpendix Vbo. Dixmes. 15. In un action for damages by a tutrix to minors, in consequence of the death of their father, through the negli- gence of the defendant, the demand is subject to the pre- scription of one year. Filiatrault vs. The Grand Trunk Railivay Cotnpani/ of Canada, S, C, 2 L. C. J., p. 97. 16. In an action (or slander. Vide Evidence No. 49. 17. Tlie remuneration of Advocates and Attorneys is not prescribed by a lapse of two years. Andreivs vs. Birch, 1 Kev. de L6g., p. 148. Also, Iluot vs. Parent etal.,i/>. p. 150. 18. The prescription of three years established by the Ordinance of 1510, declared by the 12 Vic. c. 44, [C. S. L. C, cap. 82, sect. 34,] to form part of the Civil Law of Lower Canada, is not an absolute prescription, but merely a pre- sumption of payment ; and in pleading prescription, under the said Ordinance and Statute, it is necessary to plead l)ayment and tender the oath. Scott 4* fd., vs. Stuart, S. C, 1 L. C. R., p. 167. But in a more recent case of Lepailleur vs. Scott 4" «^-> it was held, that the j)rescriptions under the 12 Vic. c. 44, are an absolute bar to any action, and do not require to be supported by the tender of the oath of the party invoking them. S. C, 1 L. C. J., p. 275; and 6 L. C. R., p. 59. And in an action where such prescription is pleaded, it must be proved in support of the prescription, that final judgment was rendered in each and every cause, for more than three years, before the institution of the action. Perrault Sf cU. vs. Bacquet, S. C, 1 L. C. R., p. 328. But in a case of Ross vs. Quinn, it was again held at Quebec, that prescription under the 12 Vic, c. 44, was not an absolute bar and that if the oath were not tendered by the plea that the plea would be dismissed on demurrer. Ross vs. Quinn, S.C, 11 L. C. R., p. 175. * The reporter properly observes that at the time of this aptioii the 12oih article of the Coutume had been repealed by the 10 and 11 Vic. c. 26, sec. 16, [C. S. L. C, cap. 71, Sect. 15.] But it is {irobabie that tne learned Judge in giving judgment, which turned upon another point, intended the reservation " even il' the 12dth article were iu force," it wotild not have altered the result. II li i ■ v il 1 J^ Lr' ■I 240 PRE ■n ■''F 1 ■b ^ ;::'! P^ Prescription : — Tlie prt'scriptiou oC throe ytins, in ciisr.s uf inoveiilili-s, cniinul 1)0 luaiiitiiiiicd without ywol' oC noutl fiiith. llrrhrtt ami Faneil, (^ H., 7 L. C. .1., y. M0',». Tlu> Kuowhclgc ul the r»iirly invoking •'jii^'li proM'riiilion lliut th(! iicistm IVom whom i(> cliiiiiis tu hiivt! UL'(|iiii(.(I u iiiovi'iihle \vu.s not tho owm-r thcrco/ is cvidc'iieo ol hiul liiitli. //(. 19. Htit it wa.s iilsn Ill-Ill lit C^iflu'o in Ihr S. ('., thiil tht? jir('.si'n|»f ion ul' f) years liir the I'ee.s ihie a rhysieiaii iiinler the 10 and 11 Vic. e. 'iH, see. HI, [C. Sts. L. C, e. 71, >iec. If).] is on uh.sohile har. Jianhj vs. Jiuot, 1 1 L. C H., p. iJOO. VJO. Arrears of house rent are h"al)Ie ton jirescriplion ol live years. Sinjnhn is. Jioss und Cliiisi jtl/r/son, S. i'., s L. C. U., |.. r^Of)"; anil also Dr/is/f vs. Mrdimiis, S. C, 4 L. C. J., |). 11;'). Ami so also I'or }>ri.i dc htni.r d fotnc. Dann' Viiivl IS. Gamin, 1 I'ev. tie LOpr., p. 2'.iT. And the pli-ii ol ])re;ierijttion isnii a1)soliite l)nr to the aetinii (iirrent. Lainrvf rs. SlCLCn.sn/i, 1 Kev. do Li"^., p. l9iK Also, Dclis/c vs. UlcUi/niis, 1<. C, 1. I.. C. .1 ., p. Uf). 21. The prescription of live years caundt he pleaded in m petitory netion as an answer to a diinand iiir rents, issne.i and profits. Liunpson rs. Tatjiur tj- al, and llii^hrs ^- al., S. C, 13 L. C. K., p. 1 :')!-. 22. l?reseription of five years is iiiterrnpled by tlie delendanrs having said within live years ininiediiiteiy jtreceding tlie action, upon beiiiu asked for p^iynient, that lie oelioved he had a larirer acconnt ajjainst plnintill". Ddislr vs. McGinnis, .S. C, 4 L. C. .1., p. l^f). 23. No prescription exists as to promissory notes dnc and payable more tlian live years before tlie coming- into force of the Act 12 Vic. e. 22, [C. Sts. L. C, cap. 6i, sect. 31.] Winj^ vs. Whig, 4 L. C. R., p. 261. And in Macfarl'.ine vs. Rutherford, L. 11., p. 11, it was held that the 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31,] is not a bar loithin five years afler its coming into force, to the recovery of notes matnred previous to that act taking ell'ect. But in an action for the recovery of the amount dne on a promissory note made in 1824, brought in December, 1853, the plea that at the time of the institution of the said action more than five years had elapsed since the said note became due, and that therefore, the said note must be taken and considered to be paid and discharged is a good plea under the 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31.] Hoyle and Torrance 4* fl^-j Q. B., 7 L. C. R., p. 312. And in the case of Lavoie vs. Crevier, Q. B., 9 L. C. R., p. 418, it was held, that the prescription of five years, established by the Act of 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31,] is applicable to non- negotiable notes previously made, and that it is not necessary to prove payment by oath. In Cdte ^al. vs. Morrison, S. C, 2 L. C. J., p. 206, it was licld that prescription of five years, under the 12 Vic. c. 22, [C. Sts. L. C, cap. 64, sect. 31,] applies to a note due before the passing of that Statute, and on which no action isbrcnight within five years after it came into force. Also, 8 L. C. R., p. 252. 24. And the prescription of five years against a promissory note acquired before the coming into force of the Statute r II K 211 Trescription : — of tlio 12 Vio., c. 2i!, limy Ik' jiliiultd )«• an notion for ilio rocovery of sucli »U)f«', Mtttwitlisluiidinfj tin- icpciil of the 3i iii'o. Ill, f. 2, iiiulcr wliii'li tin- saiti |>rr.sc'rijitiiiii lias lii-i'n ac«|lliic. :^!>7.- 2r>. A pruniissury note nuulf ni /nevr/ is |irc«('ri|itiMc l»y livo yciirs. Cicvin- is. SuunWr dtt Sdiibouci, S. f'., i; I,. (,'. .I.,I). 257. Wwi \\\. (I I I e i.t. Itnitnliihi, it was lidil lliat sucli a W'iU} was not lacsfiijililili' liy live yi-ais. ('. ('.,S L. C. .1., |). 2S!t. And sn !iIni> in IjicnxW vs, Chiutviri, S. C., 7 L. C. .I.,i). 3:i!>. 2t). An action nii a |iiomi.ssipiy in'i«',in wliicli an' inclndcd jjonoral frenee to a note of his, without specifyini;' it particularly, if no evidence to tin; contrary he nddnccd, to the efiect, that the letter had nferenee to some other note. Tliomjisoti vs. McLrod, S. f'., 1 L. C. .)., p. 1.")r). 29. Payment on account uf a promissory note within livo years, interrnpts the Statutory prescription, notwithstanding no action bronght within that period. Torrance rs. Pliilhhif S. C, t L. C. .T., p. 287. And so also it was held in Ben- jamin ct al., vs. Ihichcsnay rt. lir, tlnit nnder the Statnte of Limitations, partial payments on an open acconnt interrnpt prescription. 8. C, 5 L. C. J., p. 168. A letter acknowledging the receipt of a sum of money as a loan, and promising to repay it on demand, with interest, is not a promissory notfi within the meaning of the Statnte 12 Vic. cap. 22, sec. 31, [C. S. L. C, cap. 64., sect. 3J.] And in an action on such letter described as a writing sous scing prire, the prescription of live years under the said Statute does not apply. W/dshmv vs. Gilmour et id., S. C, 6 L. C. J., p. 319. And 13 L. C. R., p. 94.. 30. Prescription ol'six years nnder the lOth A: 1 1th Vic, c. 11, [Con. St. L. C, cap. 67,] is applicable to the action of a purser of a steamboat tor wages, and such plea is not waived by pleas of jjayment and compensation. Slrother vs. Tor- rance, S. C, 2 L. C. .1., p. 163, and 8 L. C. R., p. 302. 31. A claim for medical attendance is not liable to the proscription of six years, under the 10th & 11th Vic, c. 11, [Con. St. L. C, cap. 67.] Buchanan (J- (d. vs. Cormuck, S. C, 1 I4,,C. .T., p. 181. 32. In the case of Asselin vs. Monjeau, it was held that there is no prescription ol six years for money lent between parties who arc not traders. 5 L. C. .1., p. 26. Or by a non-trader to a commercial firm. WhisJuiiv vs. Gilmour, S. C, 6 L. C. J., p. 319. 16 ifi> i '^' 242 puii Prescription : — 33. The proscription of six years may be invoked in an action for goods sold and delivered l)otween parties traders. Mo/so7i i]- al. and Wnlmsley, .5 L. C. J., p. 2(). 34. The prescription often years does not run during the minority of the party to whom it is opposed. Dermjan vs. WotsoH ij- oL, Q. B., 2 L. C. J., p. 137. Nor until dower is open ; and so ho who acquires an iminovoiiblo property burthenod with customary dower recpiires a prescription u( ten years to purge the dower, dating from the death of the father and mother of the heirs. Bisson ij- a/, vs. MichnuJ i1(- ill., S. C, 12 L. C. 11., p. 214'. And i)aympnt to one ol'theiu under a judnment does not interrupt the proscription as lo the others, lb. 3.*). In an hypothecary action, the ])rescription often years will be available although the party against whom it is pleaded resides in the district of Quebec, and the jn'operty 1)6 situated in the district of Montreal. Siiea/t and Blair, Q. B., 2 L. C. .T., p. 123, and 6 L. C. R., p. 4-33. 36. The burthen of proof falls on the party pleading the ))rcscription of ten years. Lina ij* al. vs. Bmjer, S. C, 1 L. C. R.,p. 139.* 37. In an action en rcscision, which was met by a plea uf proscription, the answer that the dol only became known within 10 years, is good. Ficault vs. Doners, S. C, 2 L. C. J., p. 207. And so also in an action for slander, the plea that the slanderous expression only became known to plaintiffs within a year and a d:iy before the commencement of the action, is sutiicient. Ferguson and Gilmour, CJ. B., 1 L. C. J., p. 131. 38. Proof of a thirty years possession, dispenses the party proving it, from the necessity of shewing that he [wssesseJ ammo donmii or de bonne foi, until the contrary be proved ])y the plaintiff. Ike Seminary of Quebec vs. Patterson, H. R., p. 14-6. 39. If property is claimed under a prescription of 30 years possession of the claimant and hisaj^/n^^s, the names of'suoh aufeurs must be given. Lavipson and Taylor if- al., a^iJ Hughes 4- al., S. C, 13 L. C, II., p. 1.^4. 40. But it was held in the Superior Court that in opposing the prescription of 30 years, the holder might plead the prescription of those who were not his anteurs ; but the Court of Appeals hold the contrary. Stoddard S- al. and Lefebvrc, Q. B., 13 L. C. R.,p. 481. 41. The Crown may acquire property in Canada, by pre- scription of thirty years and upwards, and the real owner might have interrupted such prescription by a petition ol rights, a remedy as applicable in the colony as in the mother country. A tract of land which had been acquired and used for the defence of the country for upwards of thirty years canno* be claimed by a petitory action ; it had ceased to be in. rommercio. Laporte and The Pnncipal Ofiicers of Her Mt/jesfy\s Ordnance, Q. B., 7 L. C. R., p. 486. * That is to ^ay, tlie party plewling the ten y»-nr8 prescription mustshuw that it applies to him. In the present < a>e plaintifls pleaded 'speiialiy that one of them was alnent, and Vanfnlson, J,, ilisMniing, held ihiit plainlIff^ Khoiild hare proved this allegation. But clearly they were not sd obliged, asi they were not bound to plead any thing but the general answer. PRE to P R I 243 Prescription : — 42. An hypothecary action joined to a personal one, is prescribed by a lapse of thirty years. Delard vs. Pare A- wa;., S. C, 1 L. C. .T.,p. 271. 43. The arrears of a constituted rent for the alienation and the price of an immoveable are only prescriptiblo by thirty years. Tiircotte vs. Papans 4* ux., 7 L. C. .1., p. 272. 4+. To uc(iuiro a title by prescription there must be an actual physical possession. Stuurt &• al., vs. Bowman^ S. C, 2 L. C. R., p. 369. 45. Prior to the passing of the 4th Vic. c. 30, Sect. 16, [Con. St. L. C, c. 37, s. 37,] arrears of interest upon the price of immoveable property sold were only prescribed by thirty years and not by liv(^ years. Brown vs. Clarke cmd Montizambcrt, S. C, 10 L. C, R., p. 379. 46. Prescription is not i.iterrupted by admissions in an action which, though contested, was afterwards ^^ermec. Malo vs. O'Heir, S. C, 7 L. C. J., p. 79. 47. The prescription of the matrimonial rights of the wife, does not run during the marriage and while she is in the power of the husband. Gmithier vs. Meneclier de Mm-ochon, S. C, 7 L. C. J., p. 320. 48. Interruption of. Vide Mire vs. Litonrneau, 8. C, L. R., p. 28. 49. Prescription of penal actions. — Vide Partneuship. " : — Vide Promissory Note. " : — " Registration. Presents : — Vide Prescription. Presumption: — 1. The rights of co-vendors selling in different qua- lities will not be presumed. Holland vs. Thibaudeuu, S. C, 4 L. C. R., p. 121, 2. Where a ship at anchor is run down by another vessel under sail, the presumption is that the latter vessel is in fault, The Miramichi, p. 240, S. V. A. R. 3. If the protest be not produced, salvors are entitled to the inference that it is withheld because it would be too favorable to them. The Electric, p. 333, S. V. A. R. Preuve: — Fw/e Evidence. Preuve avant faire droit: — Vide Perrault vs Mala, S. C, 11 L. C. R., p. 81. Priest: — Ferfe Marriage. Primogeniture :- « :- Vide Droit d'ainesse. " Heirs. " Improvements. Primrose, (Hon. Francis Ward): — Was appointed Deputy Judge Surrogate and Commissary of the Vice-Admiralty Court for Lower Canada, by an instrument under the hand and seal of the Hon. James Kerr, Judge thereof, on his being about to proceed to England, dated the 30th of August, 1833. Dis- charrjed the duties of judge from that time until the removal of ivxr. Kerr, in October 1834. Continued afterwards to do so, under the authority of the Imperial Act, (56 Geo. III., c. 82,) to render valid the judicial acts of Surrogates of Vice-Ad- miralty Courts abroad, during vacancies in the office of 16* iii: '1 i) !!' i m. & 244 PRI to PRO ^*l^: Primrose, (Hon. Francis Ward): — Judges of such Court,— down to the time of the appointment of Mr. Kerr's successor, on the 21st of September, 1836. Vide cases of The John and Mary and The London. Principal and Agent : — Vide Agent. Privilege : — A conventional privilege on moveables will be restrained within the precise limits of the agreement creating it. Whit- ney vs. Craig, and Craig and Whitney, S. C, 1 L. C. J., p. 97. Privileged Communication: — 1. A privileged communication can- not be made the subject matter of an action of damages for verbal slander, and such is a communication made by an em- ployer, in his own private office, to one of his clerks, regard- ing the conduct or character of a party in connexion with her relations to another of the employer's clerks. Ferguson and Gilmour, Q. B. 1 L. C. J., p. 131. 2. The private bank account of a party in any cause may be shewn, where it is established that money at issue in the cause has been lodged by the party at the bankers to the credit of his private account. Mac'ketizie vs Taylor, S. C, 6 L. C. J., p. 83. 3. A state paper is a privileged communication which the Provincial Secretary may refuse to produce. Gitgy and Maguire, Q. B., 12 L. C. R., p. 33. Privileged Costs : — Vide HvpoTntQUE. " " :— " Costs. Privity of Contract: — 1. Where a third i)erson promises to one of the parties to a contract that he will assume it, that promise can only be binding upon him to whom the promise was made ; and a contract to deliver to certain persons all the malt they may want for their broAvery, can only be binding so long as malt may be required for the brewery, and there- fore the insolvency of such persons, and the ceasing to em- ploy the brewery terminated the conti-act, and no damages can be claimed upon the ground of subsequent non-performance . Oakley vs. Morrogh and Dunn, P, R., p. 74. 2. In a hypothecary action against the defendant as dHen- teur actuel of a lot of land sold by the plaintiff to C, defen- dant cannot set up a judgment obtained by his auteur C, against himself as settling the indebtedness of the land towards plaintiff, such judgment being res inter alios acta. Katham and Dunn, Q. B., 12 L. C. R., p. 85. And defen- dant can only impute an amount collected out of the estate of C. on a judgment rendered in 1849 in favour of plaintiff, from the time of the payment, that is to say, 1858. lb. '. — Vide Donation. : — Legatee. : — Sheriff. Privy Council : — F^V^e Appeal. Probate : — Vide Will. Probatory Term : — FzV/e Pleading and Practice. Procedure: — Vide Pleading and Practice. Proctor : — A settlement without the concurrence or knowledge of the promoter's proctor, does not bar the claim for costs ; and the Court will inquire whether the arrangement was or was not reasonable and just, and relieve the proctor if it were not. The Thetis, p. 363, S. V. A. R. « « i ..I m PRO 245 Prohibition : — A writ of prohibition ought to be granted as of right whenever a Commissioners' Court has exceeded its jurisdic- tion. Ex parte Burke, S. C, 7 L. C. R., p. 403. " : — Vide Vice-Admiralty. Prohibition to Alienate: — * In a deed of gift' the prohibition to alienate in the following terms is obligatory : — " This donation ^ made upon the express condition, that the lands given shall remain ^;/o;j;cs to the donee and to his immediate heirs, de son coti et estoc, without the power of either selling or mort- gaging the same." And in such a case the hypothecs granted by the donee are null. Fafardvs. Belanger, S. C, 4 L. C. R., p. 21;"). Also, Bourassa atid Bedard, Q. B., 13 L. C. R., p. 251, and 7 L. C. .T., p. 158. And where such a donation has been made, a bequest by the donee, deceased during the lifetime of the donor, tohis wifeof the immoveable, is null. lb. 2. And so also it is held where moveables have been sold subject to the condition that the purchaser should not sell them. Lynch and Hainaidty Q. B., 5 L. C. J., p. 306. 3. The prohibition to alienate contained in a will, whereby it is provided that the legatees, children of the testator, should in no manner charge, incumber, hypothecate, sell, barter or o:herwise alienate the real estate to them be- queathed until the expiration of twenty-years after the decease of the testator, is valid, and is neither impossible nor prohibited by law, nor is it contra honos mores. GvVlet dit Tourangeau and Renaud, Q. B., 13 L. C R., p. 278 and p. 350. Promesse de Vente : — Gaulin and ux. vs. Pichette et al., 3 Rev. de Leg., p. 261. Vide Sale. Promissory Note : — 1. Verbal notice of protest is insufficient to bind endorser. Coivan vs. Turgeon, 1 Rev. de Leg., p. 230. 2. In order to vitiate the payment by the maker of a pro- missory note endorsed in blank, had Jaith must be shewn ; payment under circumstances of suspicion is not enough. The maker is only bound to assure himself of the genuine- ness of the signatures, and is not bound to make any enquiry. Ferrie vs. Wardens of the House of Industry, 1 Rev. de Ltdg., p. 27. 3. A promissory note signed by a cross in presence of one witness is goed. Collins vs. Bradshatv, C. C, 10 L. C. R., p. 366. And an endorsement by cross before one witness is valid. ISoad vs. Chateauvert et ah, 1 Rev. de Leg., p. 229. 4. An I. O. U. is a promissory note, and is negotial)le as a note payable to bearer. Beaudry vs. Lajlamme and Davis, S. C, 6 L. C. J., p. 307. 5. A prouiissoiy note .made en brevet before notaries, payable to order, is negotiable by endorsement in the ordinary way. Morin vs. Lcgault dit Deslauricrs, 3 L. C. J., p. 55. 6. A i)romissory note mtiy be made en brevet in the actual presence of one notary ; it may be countersigned out of the presence of the parties. Dalpe dit Pariseau vs. Pellctier dit Bellcfleur, S. C, 5 L. C. .7., p. 77. 7. An insurance note is not a promissory note falling within the commercial code. The endorser is an ordinary caution solidaire. Montreal Mutual Assurance Corti'pany vs. Dufresne, S. C, L. R., p. 55. 11 ili'i ill: I I- .1;: i .5?: |< |>W , .1!? 246 PRO Promissory Note : — 8. Where agent of Railway Company had given his own notes to an Insurance Company for premiums of Insurance on iron, belonging to Railway Company, Company is never- theless liable in direct action for amount of premiums^ ; and renewal notes given by firm of which agent was partner will be declared inoperative against such firm. The Montreal Fire hisurancc Company vs. The Stanstead, Shefford and Chambly Raihuay Cmnpany, S. C, 13 L. C. R., p. 233. 9. In Wood ^ al. vs. Shaw, S. C, 3 L. C. J., p. 169, it was held, that a promissory note payable to the order of an insurance company, and given in ])ayment of a premium ol insurance is negotiable, and a memorandum at its foot, indicating its consideration, does not limit its negotiability. The indorsement of such note by the Secretary of the Com- l)any, in that cai acity, was sufficient to pass the title of the note to plaintiffs,— an implied authority in him so to do, having been shown by proof of the ordinary course of business of the Company, — that the Directors had effected the arrangement with the plaintiffs of which the transfer of the note formed part, — and that tlie Company had received the consideration for such transfer. 10. An exchange of negotiable paper is sufficient to con- stitute each party to such exchange, a holder for value of the paper he receives. It). 1 1. A wife signing a promissory note with her husband, a trader, although the note does ml purport to be made jointly and severally, becomes the cautwn solidaire of her husband to the extent of the note. Pozer vs. Green, 1 Rev. de L^g., p. 186. 12. A proniissdry note made by a married woman separee de hieus ei riiarchan'Ic puhUqne, without the authority of lier husband is good. Beauhien and Ilusson, Q. B., 12 L. C. R., p. 47. 13. And both husband and wife separee de biens are jointly and severally liable for a joint note made in the course of a business in which they were both jointly interested. Giroiiard vs. Lachajielle ct vir., C. C, 7 L. C. .T., p. 289. 14-. A promissory note made by a Avife, separated as to property from her husband, in favor of her husband, and endorsed by him, for groceries and other necessaries of flimily use juirc based by her, is valid. Chdet. vs. Duplessis Sf- al., S. C, 6 L. C. J., p. SI. And this without proof of express aulliority to her to sign the same. 12 L. C. R., p. 303. \f). A promissory note may be made on Sunday. Kearncij vs. Kuicli ij- al. '■ - - '- - - - — Lemieux, S. C missory note horse purchased on the same day, is null and void under the 45 Geo. III., c. 10, and 18 Vic. c. 117, [C. Sts. L. C, c. 23.] 16. A note of hand subscribed with the mark only of the drawer, endorsed over, gives no action to the endorser against the drawer, but the endorser on his endorsement is liable to the endorsee as for moneys had and received. Jones vs. Hart, 2 Rev. de L6g., p. 58. S. C, 7 L.C.J, p. 31. But in Cote vs. , 9 L. C. R., p. 221, it was held that a pro- made on Sunday and given in payment of a M PRO 247 Fromissorv Note : — 17. In an action of assumpsit by the endorsee against the endorser upon a note endorsed ibr usiim less than that made j^uyabh; by the note, the ]ilaintiir cannot recover. McLcmI vs. Mcclx-, JS. R., p. 4-56. 18. I he endorsee and holder of a promissory note for the purpose of collection, may recover nuainst the maker and previous endorser. JMills vs. rinlbin if- «/., 3 Rev. de Leg., p. 2r)5. 19. Endorsements in blank are only validly made by bankers, merchants and brokers. The Banl; of Montreal xs. Lduj^hns, 3 Rev. de lA'g., p. 88. 20. In a suit in the C. C, SmiUi J. held that a note given for a gambling debt Avas null in the hantls of an innocent holder. JJiroleau vs. Dcrouin, C. C, 7 L. C. J., p. 128. And a married woman's note is a nullity as regards lier ; but the endorser may be liable to the endorsee. Lchlanc vs. Rollrn i\ vx., S. (.-., L. R., p. f^&. 21. And a note made by a married woman separee de hiens is nidi, notwithstanding it be given for purchases made by herself, liadcau vs. Brant, t^- tix., S. C, 1 L, C. J., p. 171. 22. A promissory note made by a married won)an con- jointly with her husband with the view of becoming security ibr him is null and void as regards her under the 36th section of the Registry Ordinance 4. Vic. c. 30, [C. Sts. L. C, c. 37, sect. 55.] Shearer vs. Compnin J^' u.r., S. C, 5 L. C. J.» p. 47. 23. A paper-writing undertaking to pay A. B., or bearer, a certain sum of money, one half in cash and the other half in grain, is not a firomissory note and therefore not negotiable. Gi/lin uihI Cutler ^ S. C, 1 L. C. J., p. 277. 24. 'I'he maker of a promissory note may set up in com- pensation to the payee and beanr of such note, another note made by the same payee more than live years beibre, but endorsed to the maker ol"the tirst note before the expiration of the time required for prescription thereof. And in such case prescription cannot be invoked. Such compensation takes place without any notice of the endorsement and transfer of the note set up in compensation being required. The date appearing on such endorsefiient is Miilicient evidence thereof in the absence of rontradieUiry |)ri>oi", and when it is not specially denied. Ihn/x and David, <,[. J)., S L. C. R., p. 112. 25. As against the maker of a promissory note, no demand of payment is necessary, though the note is made payable at a particidar place. Evidence of )io funds at the place of payment will excuse the plain tifl^ from proving a ] ire vious. demand. A particular payment is a waiver of all obligation as to want of demand of payment. Rice vs. Bowkrr et o/.y S. C, 3 L. C. R., p. 30.3. 26. And so in a suit against the mtd^er of a promissory note to order, pjiyable at a certain place, it is not necessiry to prove that demand was made at the place of nr.tturity. And when fiinds were provided at the place indicated fov payment of the note, to meet the note which was not pre- sented for payment, the maker must urge the same speciall y t> ttl . ^!^^ r lij I I 1 j ' :■ •■^ii: 1 ^ f \\ m 248 PRO U'' i w ' ■! \f ' ■ »(| 1: m 'W-- V Promissory Note : — by exception and adduce e^'idence thereof. Mount and Dunn, Q. B.,4 L. C. R., p. 348. 27. The maker of a promissory note, payable to onler of the defendant, and by the defendant endorsed to the plaintiffs, is a competent witness for the defendant. The maker of a promissory note is not liable for costs of action against an endorser. McDonald et al. vs. Snj7yinur, S. C, 6 L. C. R., p. 102. 28. An action can be maintained against the widow ol the maker of a bill or promissory note under cross, payable to McDonald ic Co., or order, and by them endorsed in blank to the plaiutilfs, the maker, endorser and phiintili" being described as traders. Anderson vs. Park, S. C, (i L. C. R., p. 4-79. 29. Proof of fraud in the making of a promissory note, casts upon the plaintiff the burthen of showing that he is m hond fxde holder for valuable consideration. Wiihall is. Rtiston et al., S. C, 7 L. C. R., p. 399. 30. An action connot be maintained on a promissory note, if it be proved that it was given, and the proceeds thereof were applied, to bribe the electors of a county. Gugy and Larkin, Q. B., 7 L. C. R., p. 11. 3 1 . A promissory note given to a tiers-detenteur to discharge an hypothec on real estate is given wilhoiit consideration if the hypothec was created by a person who had no title. Phillips and Sanborn, Q. B., 6 L. C. J., p. 252. 32. A joint action brought against the maker of a note, by two persons to whom the same is made payable by endorsement signed by the payee, to whom, or order, the note was originally niitde payable, is good on demurrer, though it is not alleged in the declaration that the plaintiffs ure co-partners, or have the right to sue jointly. Stecensoti et, id. vs. Bissrt, S L. C. R., p 191. 33. The endorser may be liable to the endorsee although the note be a nullity. Leblartc vs. Rollin et uz, S. C, L. R. p. 56. S*. The endorsation of a promissory note by error is suffioiejit. lliurher vs. Desive, S. C, L. R., p. 103. 35. In an action agiiinst the endorser of a promissory note, the duplicate notice of frotest must be produced and riled, and the certificate of the notary that he has served due notice upon the endorser, is insufficient. Seed vs. Courtney, S. C, 3 L. C. R., p. f?03. 36. A party who endorses a promissory note is liable, althought he ijiteuded at the time to do so as the attorney of another, the error not being pleaded, and the sole proof ol the endorser being the defendant's answer to interrogatories ou faifs et articles the plaintiffs are entitled to have the answer divided, and that part, in which one of the defend- ants seeks to explain the character in which he signed, rejected, the facts not having been pleaded. Seymour et ul. vs. Wright ct al., S. C.,3 L. C. R., p. 454. 37. In an action against the endoraer of a promissory note, payable to the order of the maker, and endorsed by him to such endorser, the following notice of dishonor addressed to loioU (Ufd P 11 O 249 rnOMissoRY Note : — ^ mnker and endorser conjointly, is sufficient, in tlie absence of any proof by the defendant of the existence of another note : " Your promissory note for J.30 Cy., dated at Montreol, the 2nd September, 1836, payable three months after date, to your order, and endorsed by you, was this day, at the re(juest of Messrs. Handyside, Sinclair and Company, of thi:s city, merchants, protested for non-payment." Handijside et al. vs. Courtney et al., S. C. 1 L. C. J., p. 250. 38. \. person appointed to a temporary office in a plnee where such party went alone, leaving his family at the domicile occupied by him at the time of his appointment, is not supposed to have lost such domicile, and notice of protest of a promissory note at such domicile is valid. Rycui et (if, and Malo, Q. B., 12 L. C. R., p. 8. .39. The notary is not admissible notice of protest tiled bv plaintilf. S. C, 1 L. C. R., p. 100. 40. A verbal promise by an which has not been protested is valid, if made ailer know ledge of no protest made. Such j)romise may be proved by parol evidence ; and the promise made to an agent has the same efleet as if made to creditor. Johnson et nl. vs. Genfrion, 13 L. C. R., p. 161, and 7 L. C. J., p. I2.i. 4-1. Under the Uth clause of the Promissory Note Act, 12 Vic, c. 22, [C. Sts. L. C, c. (it, sect. 16,] the o:. ission to state in the i)rotest, that demand was made in the afternoon of the day of protest, is fatal. Josejih vs. Delisle et ul., S. C, rotest, will not invalidate the protest. Venner vs. Futvoye et al., S. C, 13 L. C. Pv., p. 307. 43. In the case of a i)rotest of a promissory note, dated at Montreal, and payable at a bank in Albany, in the State of New York, a notice of protest, mailed by a notary at Albnny, addressed to an endorser at Montreal, (protest being mad-^ and notice mailed according to the laws of the State,) is not sufficient, the postal arrangements between the twocountrio.> at the time being such, that letters could not pass through the post-ofliee without pi-e-})ayment of postage from Albany to the line. Notice sent to the endorser, at the place where the note was dated, is sufficient diligence, the place of abode being suHieitnl iiulieatiuu of the endorser's domicile, to warrant the holder in sending such notice, the endors^'- ment l)eing unrestricted. Hoicci-d vs. Sa?jourin,2 L. C. R., p. 121. Confirmed in Appeal, ;") L. C. R., p. 45. i^. Notice of jn'otest addressed to a female endor<;er beginning " Sir" is bad, nnd the action ngiiinst such endor- ser will be dismissed. Seymour ft ul. vs. IVri^jrht et el., S. C, 3 L. C. R.,p. 4-.n4.. 45. The donneur d\n:al is not entitled to notice of protest. Merritt vs. Lynch, S. C, 9 L. C. R., \\ 353. 46. A promissory note paya]>Ie on demand, is due from the day of its date, and jirescription runs against it from that lime. Larocque et al. vs. Andres et al., S. C, 2 L. C. R., p. 335. 1^ * i ':-^ 1 ,1 i k HI ! ; ! w ill! Jl 250 PRO I' \\~ :' y,MA tn-' |ROMissonv Note: — i?. Delay granted by the holder to the maker of a j)romis- sory note, cannot be opposed as asuinst the endorser, who lias paid the note subsequently to the granting of such delay. Mussue vs. Crchassa, S. C, 7 L. C. J., p. 211. And the granting of such delay does not liberate the endorser, lb. And such endorser is not bound to offer with his action the notes subsequently given to the original holder of tlu' note lor such delay. Jb. •IS. In an action on a promissory note, where delendanf pleads that he had sent in renewal to ])laintiHs, and that they never returned it, and plaint ids' reply that they had refused to accept the note as u renewal, defendant will be held to have been bound, on such refusal, to call and take- away the note he had so sent in renewal, and the mere fact of plaintifls not returning it, will not be construed into an agreement to renew. Lyman ct al. vs. Chamord, !S. C, I L. C. .T., p. 285. 49. A promissory note having two years to run, will become exigible in case of dmmfilure. Locell v.<. Meikle. 8. C, 2L. C. J., p. 69. 50. In an action on a promissory note, instituted before the coming into force of the 20th Vic, c. 44, but in which the plea was filed after the act was in force, the 87th section [Con. Sts. L. C, c. 83, Sect. 86,] as regards denial and poof of signature applies. Jamesou vs. Larose, S. C, 2 L. C. ,1., p. 73. 51. Where an endorsement on a promissory not is made by an agent, his agency must be established ; as such case does not come within the provisions of the 20th Vic, c. H^, sec. 87, [C. S. L. C, cap. 83, .sect. 86.] Joseph et el vs. Hutton, S. C. 9 L. C. R., p. 299. 52. In the case of HMs et al. vs. Hart et aL, it was iield that defendant is not obliged to file an affidavit ih support of a plea setting forth want of notice of protest, when it appears by the certificate written by the notary himself that the notice he served was utterly useless and null. JS. C, 5 L. C. .1., p. 52. 53. J3ut in the Qi B. it Avas held that a protest of a pro- missory note, allhou!:^h insulliciput on the face of it, must nevertheless be held to have been legally made, unless the plea settina- up the objection be supported by allidavit, under the 20 Vic^, c. +4., sec. 87, [C. S. L. C, cap. 83, sect. 86.] Chamberlin and Ball, 5 L. C. J., p. 88, and 1 1 L. C. R., p. 50. 54-. A plea which admits the signaiurc to a promissory note, but sets forth that it was obtained by surprise, and without sufficient value, does not require lo be accompanied l>y an affidavit. McCarthy ci al. vs. Barthe, S. C, 6 L. C. J., p. 130. And the affidavit in support of a plea setting forth that a note was a forgery, may f>e sufficient, although not in the words of the statute. Browne and Dow, Q. B., 11 L. C. R., p. 273. 55. An endorser of a promissory note who pleads that notice of protest was served at a place which was not his PRO 251 Promissory Note : — legal domicile, must support his plea by the alhclavit required under 20 Vic, c. 44, see. 87, [C. S. L. C, cap. 83, sect. 8C. j Ryan et al. vs. Mala, C^. B,, 12 L. C. R., p. 8. 56. in an action for the amount of a promissory note, for value received, the holder need not prove tiiat value was given. Larocquc et al. tend the Franldin Cininty Bank, tj. R., 8 L. C. R., p. 328. 57. In a declaration on a promissory note, it need not be alleged that value was given; but the llict of the givini^ of the value is a matter of proof. Whitney vs. Burke, S. C, l L. C. .1., p. 308. 58. The second endorser of a non-nrgolinble promissory note has no action against the first cndurs(>r, but the first endorser has against the drawer. Jones vs. W/n'/fi/, S. C, 9 L. C.R., p. 191. 59. The order of signatures by eudorsalion upon u note, i.s a mere presumption of the undertakings of tbe endorsers, which may be destroyed by proof lo the contrary. Da// avil Sculthorjie, Q. B., 11 L. C. R., p. 269. 60. An action cannot be maintained upon notes given in payment for the sale of certain shares in a joint stock company, on payment of which notes, shares were to be transferred to promissor, unless the holder otlcr by his action to make such transfer. Ifempsted i]- Drummond ^- uL,Q. B., 10 L. C. R., p. 27. 61. A promissory note made as an indemnity for assuming liability for u third party at the request of the maker is valid as such indemnity. And the party indemnified may sue a.s soon as troubled, and before paying the debt ibr wliicli he has become liable. Perry vs. Milne, S?. C, 5 L. C. J., ]). 121. 62. And the pluintifi", holder of notes, not paynble to bearer, no endorsation being alleged, will be non-suited. Ilempsted Sj' Driimnwnd i^ al., Q. R., 10 L. C. R., p. 27. 63. The retirement before due, of a note by a prior endorse) , does not discharge a subsequent endorser as against a liokl^ for value if there was no real jKiyment. but a mere exchaiii;e of securities with express retention of the liability of the parties to the note. Bull vs. Cuvillier et al., S. C., 5 L. C. J., p. 127.' 64-. A banker who has discounted a jiromi-.sory note, and then given it back to the maker for :i (heck, without value. cannot afterwards charge such note to the account oC an endorser. The Quebec Bank vs. Maxharn et al., 11 L. C. R., p. 97. 65. A holder of negotiable paper as collateral security transferred after it became due, is subject to all the equities. Deiisle vs. McDonald i^ McDonald, S. C, L. R„ \). 52, auff so the makers of a note trajisferred after it was due, may plead to the holders of the note all the exceptions which might have been pleaded to the ibrmer owners. Brooks etal. vs. Clegg, Q. B., 12 L. C. R., p. 46 1. * Does this decision amount to anything more than this, tliat a note, while m circula- tion, and before it is due, may return to the iiands ot'one ol'tlie parties to the note and l>e agniii re-issued by him ? It happens constantly with bank notes, which are alter all only promissory notes payable on demand. '^ ' !'P I \ ■ J' }l 2'>2 riio h ;■,■;?;■,; iiW:''' " PROMissonY Note : — I3ut a holder of negotiable pnnpr ns collateral security, beibro it becumo due, is not afTectecl by any equities between the original parties. Ilootl et ul. vs. Shaw, 8. C, 3 L. C. .1., p. 169. 66. A promissory note given under a condition to liiis efloet, " the value received being contingent upon no (.'hiini being made to the logs," cannot be recovered on, if the logs belong to another |)arty, and even although such other ]vjriy have revendicated the logs, and that the revendication luive been set aside on exception « Id forme, if it appears on the nu^rits that the parties revendicatiug were really the owners of the timber. Gamahy ct ul. and Chijivian, (}. B., 13 L. C. H., p. 23!). 67. In an action on a promissory note, the contract is suflieiently set out if it be alleged that the note was made, without adding that it was signed, and it is suflieient to allege that it was delivered to plaintiff, witlnait saying to the said C. ami M. Ihdlilt et (d. vs. Shatv et nl., is. (J., 7 L. C. J., p. 4-7. 68. Jt is not competent for the payee of a promissory note, signed with the name of aco-[)artnership, to bring an actiun against one of the partners alone, without alleging specially that the co-)iartnership had been dissolved. Cursant vs. Perry, S. C, 7 L. C. .T., p. 108. 69. A written undertaking to pass on a subsequenl. day, a notarial obligation, is not a promissory note, but an agreement, and must be declared on as such. COtv vs. Lcmieitx, IS. C, 9 L. C. 11., p. 221. Vide Johnson vs. Clarke, S. C, L. ft., p. 88. *' : — Vide Agent. " Aval. Bon. Capias at). respondendum. COiMPENSATION. Evidence. Interest. Prescription. ■Vide Evidence. Proof of Partnership: — Vide Evidence. Propre :— Vide Ameublissement. Proprietor: — Vide Trespass. Protest : — The production of the protest is necessary in all cases, whether of collision or salvage, but more particularly so in cases of salvage. The Electric, p. 333, .S. V. A. Pt. Prothonotarv: — 1. A Prothonotary cannot under the 22 Vic, c. 5, sec. II, [C. Sts. L. C, e. 83, sect. 113,] enter up a judgment in vacation in a case between trader and trader, although the action be brought upon account stated in detail, if the demanti be not for goods sold and delivered, or for any article sold and delivered, or for money lent. Cochran and Benson et aL, Q. B., 12 L. C. Pv.,]). 74.. 2. The Prothonotary is not entitled to the fee mentioned in the 6th item of the tariff of March, 1861, on filing the contestation of a registrar's certificate. Ninteauvs, Tremain andHuot, S. C, 12 L. C. R.,p. 209 j also, Langlois vs. it « « Proof « « r R O to IJ U E '253 rROTHONOTAnV ! — Walton, S. C., 12 L. C. R., p. 23G. And \v\h\xv it liii.s liccii l»aicl, on motion, tlie Court will onlt-r it to he piiid bui-k. //;. 3. The Trothonotary has not tlu; rif^ht to exact |«iynieni of his fees before rendering (he services for which such liees are due. Plunioiidon ef. al,, vs. Sdiiiaarnu, S. C, 12 L.C. R.,p. 333. 4'. The I'ntthonotory is not entitled to- the fee of $2 on collocations in re|)orfs of ilistrihution, if such C()IlocutioM-> have been set aside by the Court iind another report pre- pared, li^xp. Dnicsnn, S. C, 12 L. C. R., p. 4-14-. f>. The Prothonotary has no powor to receive any bonii, but a bond in appeal. The Canoilian Inland Steam Navi- ii.'ition Company vs. ReJ/cnsfcin, !S. C, 13 L. C. R., p. 370. *' : — TiV/c Pleading A Nu Practice. Vide Exp. Lnnglois, L. C. R., p. 463. Proxies : — In order to prevent proctors from proceedini? in causes, on instructions from parties not having a legal persojKK sionji to prosecute a cause, the Court may require the production of proxies. Thf. Dvmsfriesshhe, p. 2+3, S. V. A. R. Rej)ort of the law officers of the Crown in Canada on this subject. Ih., p. 247, in notes. Public Law: — Vide Code Marin. '* : — ** Prerogative. Public Policy : — Vide Agreement. Public Officer : — Where a person contracts as a public officer, he is not personally responsible, unless tliere be some peculitir cause to charge him. Scott vs. Lindsay, S. R., p. 68. -Vide Commissioner. - " Fees. : — " Notice of Action. ' — " Registers. - " Trespass. Public Pound : — Vide Municipal Councils. Purchaser : — Vide Sale. Quantum Meruit: — A tradesman cannot maintain an action of general indebitatus assumpsit as for a quantum meruit, for work and labor performed, and materials furnished by him, if such work and labor and materials were for extra work to be valued under an express authentic written agreement or specialty, according to a specified standard ; viz : the contract price. In other words the law does not permit an action of indebitatus assumpsit to be brought on a specialty or deed ; nor on any special agreement in execution of which any thing remains to be done. Stuart and Trepan- vier, 1 Rev. de L6g., p. 297. -Vide Architect. - " Assessors. ■ " Compensation. - " Water. Quebec: — 1. The river St. Lawrence, from the west end of the Island of Anticosti to the eastern line of the district of Three Rivers, is within the District of Quebec. Hamilton Sf al.vs, i: ^ Phaser 4* a^>)S. R., p. 21. « 1 i i I 254 g U E to U A I :';lli. '2. The cur|K)ration oi' the city of ( jiicbec Iio.h the riglil in virtue oflhe 8 Vic. c. (iO, sec. 7, to miike hy-Iows concern- ing the niiirkots, nnd to ordnin thiit porNons Ibund n|K)n sucli markets oiiending against such by-1 iws shall bu removed ; nnd that tlu> cor|ioriitioii hns thut right independently of any sintiito conferring ii|K)n it such right, ur.d it is within tlie powers of 11 innnicipiil cor|K>rntion to ninko such a by-law. Dumnntin- vs. fiauflim tlit I,ativihe, S.(.'., 1 L.C. U., p. iTU. 'A. In the exercise of the pt)wers conferred on a cor|>oru- tion by statute, nfiecting the property of individuals, such as the power conferred on the cor|Ktration of the city of(.Jiu>bec by the 10th Vie. c. 113, and I3th iV Uth Vic. c. 100, sec. 7, of aeipiiring I lie right of way or servitude necessary tor the const riielion of the t^uebec Water Works, the coiu'sc sanc- tioned and pointed out by the legislature must be strictly pursued and adhered to, and any departure from such cour.st> will vitiate the proceedings ; and the taking of land for such purpose must be under the conditions mentioned l)y the statute, and not under any other conditions, if such taking be compulsory. Marphrrson vs. The Mayor, «Jr. of the Citi/ of Qurfjec, S. C, + L. C. 11., p. 429. litKHEl AND ItlCHMOND KaII.ROAD CoMPANV : — Vtclc PLEADING AND PUACTICK. Cjltrn's l^ENcii :— The Court of t^. B., appeal side, after having been seized of a cause in appeal, and having rendered a judgment, thereon, (rom which an appeal was again had to the Privy Council, who overrided the judgment of the Q. B., has no longer any jMjwer to take cognizance of the said cause, the exercise of the power of the Court and its competency having terminated with its judgment on the appeal. The Montreal Assurance Comjmny and McGil/hray, Q. B., 5 L. C. .1., p. IS-A. Qui Tam : — Vide Forfeiture. Quo Warranto : — On demurrer to a defense proceeding in the nature of a quo tcarrantOf the Court was of opinion that it was sufli- cient for the defendant to allege his nwmlat as municipal councillor ; but on the merits that it was necessary for him to do more than show that he had been notified of his elec- tion, and that the report of such election had been duly made to the secretary-treasurer. Beliveau vs. Juneau, S. C, 7 L. C. J., p. 63. He must show that the election was legally made. Tcdbot v&, Pacaiul, S. C, 7 L. C. J., p. 67. " : — Vide Judge. Railway cases : — 1. Where by the charter of a railway company, it is not bound to erect barriers at those points where the line crosses the public road, the company is not liable for injury done to cattle straying on tbe line from the public road ; but the parties allowing their cattle so to stray are answer- able to the railway company for damages done to the carriages thrown off the track by collision with such cattle. Rocheleau vs. The St. Latcrence and Atlantic Railway Com- pany, S. C, 2 L. C. R., p. 337. 2. In an action of damages arising from a railway accident, which resulted in the death of a party, and the destruction R A I 255 MNG AND Railway cases : — vi' his lu)rs(> nml wnirt^on, no dninnge^i will \io allowod beyurul thu vtiliir or.sii('ii liurse und wiikruii, iiiilf.ss tlicrn be specific proof of tlic \n\\w of fho |)iitty*H life tt) his tiiinily. finvary rs. The (t'rantl Tnttik liailu'tn/ ComjHitiy nf Canadti, 8, C, 1 L. C. J., p. IW. 3. The breakiiif^ of ii holt, wlx'rchy fho ri'iu wlu-fls of ii rnihviiy ciuriiipf were Hcpiiintt'd Iroiii ihf iMiriiiigf, whic-l. was thro^vn uHlii,' fmck. is sutliiwi'iit I'vitltMice i»f m-^ligfiu'f^ niul the JnSM/iiritMicy ol the car oonv(?ying pass«'ii;,'i'rs,--lh«' traiii Intvii)^ III-' Iril the station, and profcfdiiiij; at thf rati; uf five iinil*'^^ an lioiir, and there hcin^ no ohstrnctidn on lite track, und nothing out nl tlu^ usnal course ot' tliin^;s to acconnt othcivvisi; \\a the contestations of opixnitions, have not tho eflect of dis- charging the purchaser from the payment of interest upon the purchase money, which interest becomes payable aher the lapse of the four months for giving the public notice ne- cessary for obtaining letters of ratification, and which in- terest he is only bound to pay up to the day of the payment of the money into Court, although at that period the contes- tations had not been disjwsed of. The omission of some of the formalities required by the Provincial Statute of the 9 Geo. IV., c. 20, [Con. Stat. L. C.,cap. 36,] to be admitted to over- bid upon the price of sale, Joes not entail nulity of the pro- ceedings. Ruston and B/a tchard, S. C, 5 L. C. R., p. 390. 7. The vendor who cov niants that the purchaadr shall obtain a ratification of title, before making payment, becomes thereby a party to the proceeding for ratification, and conse- quently the purchaser is not bound to call in the vendor m garantie to give an opjKtrtunity of contestiiii>- claims filed in the proceedings, lb. 8. A purchaser seeking for ratification of title nnist deposit the price if the opposing creditors re<|uire it. Exp. Cantin, 1 Rev. de Leg., p. 4«2. 9. In cases of demand of letters of ratification of title, the ticiion en garantie lies to remove opposition, unless an express stipulation to the contrary be inserted in the deed of sale. Douglas and Dinning., Q 13., 8 L. C. R., p. 501. 10. An opposition to an application for ratification of title, not containing any engagement on the part of the vendor to obtoin such ratification, or on its being asked for by the vendee to cause all opposition to be removed amounts in law to a trouble, and entitles the api)licant to sue his vendor en garantie to compel him to intervene and hold him harmless from such oi)position. Ex parte JudaJi and Jadah, ]>laintirt" en garantie, and Rolland, S. C, 1 L. C. J., p. 194. And again in the case of Douglas and Dinning, Q. B., 3 L. C. J., p. 33, it was held that a new proprietor who is troubled in his demand in ratification of title, is well founded in bringing an action en garantie against his vendor. And the purchaser is not obliged to dciK»sit the interest of the price of his acquisition in order to obtain a sentence of ratilication of title and to purge the hypotJuk/ues aflecting the property. Ex parte Ila.rl, S. C, 3 L. C. .1., p. tO; also 9 L. C. K., j). 310. And a temporary exception jx^tc^njUaire en droit to an action for tho recovery of a price of sale, setting forth tho existence of a mortgage on the property sold, and the liliiig of an opposition to letters of ratilication is a good plea. C Sullivan vs. Murphy, S. C, 7 L. C. R., p. 4.2-i. 11. When the registrar's certificate discloses hypothecs existing on the land referred to in a petition for confirma- tion of title, a motion by an intervening party, praying to be allowed to file discharges, and that the hypothecs be de- clared to be satisfied, cannot bo granted. Ex jmrte Robinson y S. C, 12L. C. R.,p. 431. 17 i il ■I I T JP^TT|fT?| 258 RAT to R E C Ratification or Title : — 12. Effect of bankruptcy Ord. on lands hypothecated. Exp. Chabot, 1 Rev. de h^g., p. 265. • > • '•■u : — Fw/e Insinuation. ' : '/ « ,)■■ ■, I I, A ': 1 jl Ratification: — Fic?c Letter of Attorney. Rebellion a .Tustice : — 1. In the cnse of a saisic execution, where a defendant is outside his dwelling house, the door of which is locked, and within which are his wife and family, who are visible from the outside, and who neglect to open the door, on being called on by the bailiff to do so, the statement by such defendant to the bailiff that he cannot open the door, amounts to a refusal to do so. Kemp vs. Kemp, S. C., 2 L. C. J., p. 279. But the neglect of a defendant to open the door of his dwelling house, under the circumstances above described, does not amount to a rebellion d justice. Kemp vs. Kemp, S. C, 2 L. C. J., p. 280. 2. No mitigating circumstances c^n prevent the issuing of a contrainte par corps in the case of a rebellion d justice. Campbell er, S. C, 6 L. C. J., p. 38. Recognizance : — The omission in a recognizance of special bail of the following condition required by the Provincial Statute 5 Geo. IV, c. 2, " it being nevertheless expressly provided, in conformity to the statute in such case made and provided, that we, the cognizors for the said defendant in this cause, shall not, by virtue of the undertaking hereinbefore stated, become liable, unless the said defendant shall leave the Province, without having paid the debt, interest and costs," makes such recognizance null and void. Stewart vs. Hamel and Dubord, 1 Rev. de Leg., p. 212. -> EEC to REG 259 Recorder : — The recorder of Montreal is not bound to make any record whatever of evidence adduced before him, and con- sequently the Superior Court has no means of testing a question of jurisdiction, the solution of which depends on the precise character of such evidence. Reg. on Pet. of Gould for Cert. vs. the Hon. .Joseph Bourret, S. C, 1 L. C. J., p. 162. But see a later case of Ex parte Ledoiix lor certiorari, S. T'., S L. C. R., [). 255., Supra Vo. Cnnvirtion, where a con- viction by the Recorder was set aside, there being no evidence set up to shew that the Recorder had jurisdiction. As to appeals from General Sessions of the Peace, ililchen and Eaton, Recorder's Court, Quebec, 13 L. C. R., p. 471. Recors : — Vide Execution. « : — " SAISIE-REVENDtCATION. Rkcoupement: — 1. The mate of a vessel is chargeable for the value of articles lost by his inattention, and the amount may be deducted from his wages. The Piquneau, p. 94, iS. V, A. R. 2. Damages occasioned lo the ship by the mismanage- ment of the pilot may be set off against his claim fur i)ilot- age. TAe Sophia, p. 96, S. V. A. K. Recusation: — 1. The judge recused is competent to decide as to the validity of his recusation. Canada Assurance Company vs. Freeman, 3 Rev. de Leg., p. Si). 2. The recusation contemplated by the ordinance of 1667, tit. 24<, art. 23, can only be made in writing. The ini7)iitie. cajntale mentioned in the 8th article of the same title, to give rise to a recusation, must be hatred on the part of the judge, and must be so alleged and proved, failing which the reasons of recusation will be held to be impertinent ; and tlie causes of such -iatred must be declared. And such hatred must be clear, manifest and known, the result of the killing of some near relative of the person urging such recusation, or the result of differences, personal encounters, or matters of large interest between such person and the judge, which could create a feeling of revenge which might lead to using the opportunity of destroying the life, the honor or the personal advantages of an enemy. Renaitd aiul Gugy, Q. B., 8 L. C. R., p. 246. 3. The relationship of a judge with a shareholder of an incorporated Company^ party to the suit, does not render the judge incompetent. Canada Assurance Company vs. Freeman, 3 Rev. de L6g., p. 85. 4. A judge appointed to act as a Commissioner under the 20 Vic. c. 43, [C. S. L. C, cap. 2.] (Codification Act,) renders him incompetent to sit as one of the Judges of the Court of Q. B., 5 L. C. J., p. 79. Registers: — 1. Change of master, not endorsed on register, and no bond given by new master, according to the 26 Geo. Ill, c. 60, sec. 18, and 27 Geo. Ill, c. 19, s. 7, operates a forfeiture. Perceval vs. TJie Harrower, S. R,, p. 80. 2. A dissenting minister of a protestant congregation, not being a public officer, nor a person in Holy Orders, recognized to be such by the law, is not entitled to and cannot keep a parish register for baptisms, burials and marriages. Ex parte Spratt, S. R., p. 90. 17 • ,Mi-;: it •- 1 11 260 REG I, fi '.i^ Vi V y f ■ ii n. ti' I:; ■^■^i\ 1 ;i:;.:ri::1'i '.* '1 ' '' J Registers: — 3. The word [' Protestant Churches or Congregations," used in the Statute 35 Geo. Ill, c. 4, [C. Sts. L. C.,c. 20,] which requires rectors of parishes, &c., from 1st January, 1796, to keep two registers, both of which are authentic, only embraces such churches and congregations as had their existence in the Province when the Statute was passed, Spratt vs. The King, S. R., n. H9. 4. A minister of a presbyterian congregation in com- munion with the Church of Scotland is entitled to keep registers fur marriages, baptisms and burials, notwithstanding that in the place, where he officiates, another church, also in communion with ihe Church of Scotland has been pre- viously established under the authority of Government. Ex parte CHugston, S. R. p. 418. .'i. The certificate of baptism, will not be set aside upon inscription de faux,, unless falsity or incorrectness is alleged and proved. That although not an extract from the registers which the American Presbyterian Church was by law allowed to kecj), it was not therefore a. ]nikc fai/sse. But the only extracts which can carry authenticity are those extracted from the registers allowed and ordained by law to be kept. Shaiv et al. vs. Si/kes, S. C, 5 L. C. J., p. 124. And it will be left for the parties to make snob proof respecting it as they may make by law. lb. Registrar : — A registrar is responsible for the loss caused by his neglect to enregister a mortgage, or by a certificate given by him wherein an omission occurs, from the oflect of which a purchaser de honnt^ foi is troubled in his possession. Mon- tizatnhert and Talbot dit Gervais, Q. B., 10 L. C. R., p. 269. And the action in such case should be an aclioti en garantie, the registrar being the garant of the party to whom he has directly caused damage, lb. Registration: — 1. A tutor cannot maintain an action at law until his tutorship has been registered. Langlands vs. Stansfield et al., S. C, 7 L. C. J., p. 45. 2. And in an action brought by the Tutor of a minor, it is essential that the declaration contain an allegation that the appointmeiit of said Tutor, or a memorial of sncli appoint- ment, has been registered. Mart-ay rs. Gorjnan, 2 L. C. R., p. 3. But in Chouinard vs. Demers, S. C, 5 L. C. R., p. 401, it was held, that an opposition to the sale of real estate by a Tutor ail Iwc, authorized to act for minors, is maintain- able without reference to such actedetittelle,t\\e24ii\i section of the registry ordinance not applying to such oppositions. A purchaser who has Ijeen put in possession of an immove- able, and who has since caused his title to be registered, may invoke the prescription and possession of ten years as against the claim of a purchaser who had previously regis- tered his title, but was never put in possession. Thouin and Leblanc, Q. B., 10 L. C. R., p. 370. 3. A judgment rendered against the autcur of a party, who is in open and public possession of immoveable property, but who has not registered his title, creates no hypotheque. on such property. Ex parte Gamble, Pet. for Conf. of Title, S. C, 6 L. C. J., p. 169. his REG to R E L 261 Registration : — 4. And in the case of Chaumont and Grenier, Q. B., 12 L. C. R., p. 125, it was held, that a deed, passed since the registry ordinance came into force, creating an hypothec is invoked as against a subsequent purchaser, and where the title creating the hypothec and that of the purchaser have been enregistered at the same time, the hypothecary creditor not having registered Ijefore the subsequent purchaser, had lost his right, and this although the purchaser was aware of the hypothec. 5. Where a debtor by fraud has incorrectly stated his christian name in a deed which is enregistered, the loss will fall on the creditor and not on the tiers ditentcur'm good faith. Lafleur vs. Donegani et al., Q. B., (18+9) 7 L. C. .1., p. 102. 6. Subsequent obligation enregistered preferred to dona- tion not insinuated prior to obligation. Principal Officers of Art. Sf- Pemberton f 2 Rity. de Leg. p. 299. 7. Hypothecs resulting from deed of lease need not be registered, according to the terms of the 4 Vic, cap. 30, sect. 17. [C. Sts. L. C, cap. 37, sect. 10.] Broionvs. Mclncfily, S. C.,3 L. C. R.,p. 291. 8. The privilege granted as to letters patent by the proviso of sec. 4, 4 Vic. cap. 30, [C. Sts. L. C, cap. 37, sect. 3, sub- sect. 3] only applies to the immoveable property granted by such letters fjatent. Motrin Seal. vs. Smith, S. C, 6 L. C. R., p. 279. 9. The crown has no privilege for fire debentures, given to any one who was not a sufferer by the fire, without regis- tration. Reg. Deguerpissement. Rent: — Vide Lessor and Lessee. Renunciation :~ I. The presumptive heiress, having collected moneys due to the deceased, and kept in her hands moneys left by him, could not renounce to the succession, and such renun- ciation would be of no eflfect. Orr and Filler, Q. B., 6 L. C. R., p. 28. 2. An art« of renunciation is necessary to discharge the heritier from liability in a suit although be has done no acte dli&ritier ; and an action against him, n he appear^ and renounces before judgment, will be disiiiissed, but with costs against him. 7%e Montreal City and District Building Society vs. Kei-fut ct al., S. C, 4 L. C. J., p. 54, When option is equivalent to renunciation. Lefebvre vs. Demers. S. C, L. R., p. 56. Vide Bissonnette 4* Bissonnette, Q. B., L. R., p. 61. • " - VM REP to REQ 263 Reply : — In public prosecutions for felony, the Law Officers of the Crown, and those who represent them, are entitled to reply, although no evidence is produced on the part of the prisoner. The Queen vs. Quattreptttes, 1 L. C. R., p. 317. Reprise d'Instance : — 1. An association which has been incorporated by a provincial act during the pendency of a suit, is entitled to take up the instance as a corporation. Faribault and St. Louis et al., and La Compagnie du Richelieu, S. C, 3. L. C. J., p. 51. 2. A petitioner praying to be allowed to appear and take up the instance of a party deceased, will be first allowed to appear and file his petition, but the Court does not thereby admit his right which may afterwerds be a subject of con- testation. McKillip et al. and Kaitntz et al., 1 Rev. do L6g., p. 152 ; Gillespie et al. vs. Sjnagg et al., and Mann et al., Pet. for reprise dHnstance. 6 L. C. J., p. 29. 3. A person cannot be held to appear in a cause and take up the instance in place of the defendant, deceased, by a rule nisi, but by an ordinary writ of summons and petition in due form. Lafond et al. vs. Chagnon and La Chainbre d* Agri- culture and Hood, S. C, 7 L. C. J., p. 1 12. 4. Where suggestion of death of one of several defendants is filed of record, a motion to force remaining defendants to substitute an attorney in place of one who had been promoted to the bench, will not be granted until such suggestion is removed or disposed of. Sauvageau vs. Robei-tson et al., S. C, 9 L. C R., p. 224. Reprises Matrimoniales : — The prescription ol' reprises ma^rimoniales does not run during the marriage, or while the wife is under the power of the husband. Gauthier vs. Menec/ier de Moro- ckond, S. C, 7 L. C. J., p. 320. And the universal usufructuary legatee of the wife sepa- rated as to property, may claim such matrimonial rejn-ises afler thirty years elapsed during the marriage and since the rendering of the judgment, lb. The clause of the husband's will, instituting his wife as his universal usufructuary legatee, subject to the charge of paying the debts of the testator, has not the effect in such case of operating any confusion in the person of his wife, as regards such matrimonial reprises by such acceptance. lb. Requete Civile : — The requite civile cannot be received against a final judgment, rendered en dernier ressort and without appeal. Valin vs. La Corporation du Comte de Terrebonne, S. C, 4 L. C. J., p. 14 ; also, Martin vs. Moreau, S. C, 4 L. C. J., p. 121. Requete LiBELLtE : — 1. In a proceeding by requete libeUee, praying ouster of the defendant from an office held by him as coun- cillor of the city of Montreal, and further that the informant be declared to be entitled to said office, the mode of implead- ing defendant is by writ of summons, under the statute 12 Vic, c. 41, [C. S. L. C, cap. 8S,J and not by a Judge's order, under the 14 and 15 Vic, c. 128. Lynch vs. Papin, S. C, 4 L. C. R., p. 81, and L. R., p. 9. But on a requite libeUie, on wliich was granted an order for a writ of sum- mons to issue against defendant, it was held on exception d la fornUf that the Judges in vaoation have no jurisdiction. !! ^V 264 R E Q to RES ^ Ml ''■ ■', '. ) ..; ■% J . ' » , Reqvete Libell£e: — over the subject matter of the petition, nnd the excejttion a la forme was maintained. Adam atid Duhamel, S. C, iii vacation, 10 L. C. R., p. 14. 2. The petition or requite libellie required by the 12 Vic, c. 41, [C. S. L. C, cap. 88,] for the issuing of a writ of quo tvarranto, which sets forth generally the ground of complaint, is sufficient, without setting forth the details. Fraser et aL vs. Buteau, Q. B., 10 L. C. R., p. 289. 3. A party elected to be councillor in the corporation ol the city of Montreal, not being possessed to his own use and benefit of real and personal estate within the city of Mont- real, after payment of his just debts, of the value of £500 Cy., is not qualified to be so elected. Rolland vs. Bristol" , S. C, 4L. C. J.,p. 281. That a party elected to be such councillor, and becoming insolvent during his occupancy of said office, is by such insolvency disqualified to hold such office. lb. And in the same case it was held that there was no appeal i from the judgment of the Superior Court acting under the statute 12 Vic, c 41, [C. S. L. C, cap 88.] Q. B., 4 L. C. J., p. 283.' Rescision : — Vide Action Resolutoire. Resiliation : — Vide Action resolutoire. « : — " Donation. " : — " Pleading and Practice. Re« judicata : — 1. An interlocutory judgment adopting without opposition the account of the succession prepared by its order, passes in rem judicatum, and it is not competent to the representatives of a minor who was legally a |)arty to the suit, to revise the proceedings, and contest any particular item of the account. The Court may however rectify any error of calculation. Plenderleath vs. McGillirray, S. R., p. 470. 2. A judgment rendered against a principal debtor upou an issue raised by him, is res judicata against a surety, who was not party to the original cause. Brush et aJ. vs. Wilsov, et al., S. C, 2 L. C. R., p. 249. 3. A judgment dismissing an hyiwthecary action for want of proof of possession by the defendant, of the property hypothecated, cannot be opposed by exception rei judicata", to a subsequent demand, founded on actual possession, — possession being a fact which is renewed day by day. Nye ami Colville et al., Q. B., h L. C. R., p. 408. 4. For a case in which a motion was refused on the f>;round that the subject matter was res judicata. Benjamin ' vs. Wilson, S. C, 6 L. C. J., p. 246. 5. Res judicata is properly j)leaded to an action founded on judgment against the defendant in favor of third parties, who have assigned these judgments to the plainlifT. Whelav. vs. Keeler, S. C, 13 L. C. R., p. 363. 6. Defence grounded on a res judicata, must be specially pleaded. The Agnes, p. 53, S. V. A. R. * But see the case of Frater et al. vs. Buteau, where it would seem the Q. B. liai Mtuall; given a judgment on thtf^erits of the petition. - RES to RET 265 Res judicata : — 7. Where there had been n previous judgment of the Trinity House upon the same cause of demand, the Court declined to exercise jurisdiction. The Phabe, p. 59, S. V'. A. R. A Court of competent jurisdiction having decided the facts which were directly in issue, the party is stopped from trying the same facts again, lb., p. 60. To allow several suits for the same cause of action m two several Courts, would lead to a worse than useless multiplication of law suits, would be highly vexatious to l)ar«ies, and would subject Courts to discredit from contrariety of co-existing decisions of equal authority in separate tribu- nals \\\)o\\ the same matters. /6., p, 61. FiVic Opposition No. 30. Res puBLici bt divini juris : — Vide Comflainte. Retrait Conventionnei, : — The abolition of the rctrait conventionnel by the 18 V^ic, c. 103, sec. 4, [C. Sts. L. C, cap. 4.1, sec. 45,1 has no retroactive effect, and the retrait may be exercised upon immoveables sold before the passing of the said Act. The advertisement of the Sheriff, stating that the immove- ables will be sold, subject to the cens et rentes and other seigniorial and conventional dues and charges, according to the original title deeds of concession, is sufficient to preserve the droit de retrait, and in such a case an opposition ajin de diarge wus not required. Garoti and Cosgrain, Q. B., 8 L. C. R., p. 397 ; also, Ifanvood et ux. ami Wliitlock et aL, Q. B., 6 L. C. J., p. 259 ; also, 12 L. C. R., p. 294. Retrait Lignager : — Abolished by 18 Vic, c. 102, [C. 8ls. L. C, c. .53.] See u reported case, 5 L. C. .T., p. 71, Danscreau vs. Collette. Retrocession: — Vw/c Donation. Return day : — The defendant must be called on the return day of the Writ of Summons ; but Ihe writ and declaration may be brought in any day on motion of either party. Dalton '.a. Saiiders, 1 Rev. de Leg., p. 400. " : — Vide Capias. Returning Officer : — By the Statutes of 12 Vic, c. 27, cap. 6,] and 14 and 15 Vic, c 1, [C. S. C, cap. 7^ ing officers and their deputies have boon ami aro subject to punishment by the House of Assembly fur malversation, — malversation on their part being n special breach of the privilege of the House, as an attempt to put in or keep out a member unjustly ; and the general jxtwer accorded in cases not provided for in the statutes, must almost always relate to the returning officer or his deputy, or to some person, not a member, in respect of whom the House is authorized to make such orders, as to the House may seem proper, neces- sarily implying a power in the House to enforce such order. The House of Assembly has the power, as being necessary to its existence, and the proper exercise of its functions, of determining judicially, all matters touching the election of its own members, including therein the performance of the ■'•''.-. t. duty of those officers, who are entrusted with the regulation !- ... . . of the election of its members. And Courts of Law caimot [C. s. c, I'TJ return- 1 ,^ ^^ ' i^ 366 R E T to R I r it: ■ M' \:i- . I , : 1 1 1 ll '■■ii ! t f f't i'.'J' .. ■f.',. t 4:1) -5,1 .(• ■•■:ri!::i: Returning Officer : — enquire into the cause of commitment by either House of Parliament, nor discharge 4ior bail a person, who is in execu- tion l)y the judgment of any other tribunal ; yet if the commitment should not profess to be for a contempt, but is evidently arbitrary, unjust and contrary to every principle of positive law or natural justice, the Court will not only be competent but bound to discharge tlie jmrty ; a commit- ment by either House of Parliament, may be exiunined upon a return to a writ of Habeas Corpus. The Justices here, as those in England, possess and have exercised the power to issue writs of Habeas Corpus in matters of commit- ment by either House of Parliament. The Provincial Statutes 12 Vic, c. 27, [C. S. C, cap. 6,] and 14 and 15 Vic, c. 1, [C. S. C, cap. 7,] invest the House of Assembly with power to punish, by imprisonment, a Deputy Returning Officer for malfeasance or breach of privilege. Ex parte Lavoie, S. C, 5 L. C. R., p. 99. Revendication: — 1. Where in cases of revendication, the affidavit, is manifestly bad, the writ and seizure may be quashed on motion ; but where the affidavit invites an issue on the alle- gations, the proper proceeding is by exception d la forme, Rofuth et al. vs. McPherson, S. C., 9 L. C. R., p. 413. 2. An action of revendication will lie ♦o recover possession of moveables illegally seized. Langlm^ vs. The Corporation of the Parish of St. Roch et al., S. C, 13 L. C. R., p. 317. 3. A shipper may reveudicate his pifoperty in the hands of the master of a vessel, who will not sign bills of lading. McCulloch et al. and Haifiehl, Q. B., 13 L. C. R., p. 321, and 7 L. C. .T., p. 229. And if the Bills of Lading are signed after the issuing of the writ, but before its execution, the shipper may return the action for costs alone. 2b. 4. In an action of revei.uication, the omission to leave a •copy of the procis-verhai of seizure, is not fatal, inasmuch as the Ord. of 1667 only requires this formality in cases of saisie execution. Moisan and Jorgensen, S. C, 13 L. C. R., p. 399. ** : — Vide Complainte. « : — « Moveables. Revenue Cases : — Vide Admiralty. Revocation: — F/«?e HvpoTHtQUE. « :_ « Will. Revocatory Action: — Vide Action revocatoire. " « :— '* Damages. Riparian Proprietor : — 1. Riparian proprietors are not entitled as a matter of right, to obtain a grant of beach lots in the River St. Lawrence, fronting their property, in preference to any other, and in particular cases the Crown can grant such beach lots to those who are not the riparian proprietors. Reg. vs. Baird, S. C, 4 L. C. R., p. 325. 2. An action by a riparian proprietor against a neighbour, also a riparian proprietor, to compel hira to demolish a wharf will not be maintained, unless it be built in the bed of the river and be calculated to injure the complainant. A ripa- rian proprietor has a right to build a wharf to recover land RIP to R n 267 RiPAniAN Propriitor : — that may have hccn encroached Uj ')n loy the ^ vrer, if hy so doing he does not injure his neighl nirs. Brv n and d'n^j/f y. B., 11 L. C. R., p. 401. " : — Vide Accession. Rivers: — 1. Rivers, wlietlier navignhio or not, nre vested ilie Crown for the benefit of the public, and no person, »c. ,nior or other, can exercise any right over them without n fraut. from the Crown. In an action of damages by the slopping of communication on a river, with a boom and chain, it appearing from an agreement between tVie parties, oflcr the commencement of the action, that the pUicing of the boom and chain tended to their mutual benefit, the action was dismissed. Baissonnaidt and Olira, S. R., p. 564<. 2. Rut in the case of liosiirll and Denis, Q. U., 10 L. C. R., p. 294', it was heUl, that rivers tioH'ttavigables et non- flottahtes, are the private property of the riparian proprietors, who have consequently the exclusive control over the same and the exclusive right of fishing therein. 3. A seignior ])y his grant fi:om the Crown acquires a right of property in the soil over which a river not navigable flows ; but on running water he has only a right of servitude while it passes through or before the land he retains in his possession, which does not authorize him to direct the stream, or use the water, to the prejudice of the other proprietors above or below him. St. Louis vs. St. Louis, S. R., p. 575. And an action by a seignior against his co-seignior for the improper use of the common estate can be maintained. Jh. Confirmed in the Privy Council, 3 Rev. de L6g., p, 329, also 3 Moore's Rep., p. 398. 4. In the case of Minor vs. Gilmour, S. C, 9 L. C. R., p. 115, it was held, that by the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land, for instance to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have in case of a deficiency, upon proprietors lower down the stream . And further he has a right to the use of it for any pur^iose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of pro- prietors either above or below him. Subject to this condi- tion he may dam up the stream for the purposes of irrigation ; but he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury. And 12 Moore's Rep., p. 131. 5. Under the provisions of the 19 & 20 Vic, c. 104, [Con. St. L. C, cap. 51.] a proprietor has no right to erect across a water-course, a dam abutting on the land of the opposite proprietor; and if so erected it will be demolished at the instance of the latter. Jb/y w. GagMWi, S. C, 9 L. C. R., p. 166. 6. A boom stretched across a floatable or navigable river is a public nuisance which may be abated by any one. Reg. vs. Patton, Q. B., Cr. side, 13 L. C. R., p. 311. *' : — Vide Servituds. 1, i 1 ; ; . ■ ■ ' ^ '{ \' ' 1 -■*<'',■ ■ M m 268 R O A to R IJ L ijiH. ]i. I' :-5;i I, Vj: Road : — !• An action will lie by tho assignee uf u road ofticor ngtiinsr an absent proprietor, to recover an nnioiiut due fur nmkiiig n road through his lands. Etliaon vs. Dunn, H. C, 1 L. C. R., p. 340. 2. Municipal Councils making by-laws for the opening ot roads, Arc, &c., arc bound in comnliunce with the provisions of the 36 Goo. Ill, c. 9, [repcnicd,] commonly called thr Road Act, to give the notices required by that Act. And il the road bo a by-road (route) it is necessary that the price of the land should be paid or tendered to tho proprietor. However long a rend may Imvo been opened and used by the public, no right is thereby acquired, and the proprietor of the soil can, at. any time, when a procin-vcrhat is madf recognizing the rond as a public road, claim to be indemni- fied for the value of the land. Ex parte Fonm A- al., C. C, 4 L. C. R., p. 52. Road Tax: — An overseer of roads has no authority lo sue for pe- nalties under a by-law of u nuuiicipal corporation, ininosiiiir a road-tax and by the Act 10 k. 1 1 Vic, c. 7, [repealecl,] the powers formerly vested in the overseers of roads have been transferred to the municipal councils. Ex parte Itocheleav, and Ex parte EisenUart, S. C, 3 L. C. R., p. 497. Roman Catholic : — A Roman Catholic who has become a Protestant? cannot be held liable for his share of the rate levied (or the building a church, although he may have done acts which a Roman Catholic could alone do, and that he had demanded the building of the church in ((uestion. Les Syndics de La- chine vs. iMjlnmme, S. C, 6 J.i. C ., p. 226. 2. A person born in the Roman Catholic faith cannot dis- charge himself of tho civil obligations attaching lo Roman Catholics, by the fact of his having ceased to practise his religion and having followed the worship of a Protestant church, and such a person may be interrogated as to his belief, and his refusal to answer will be taken as an admis- sion of his not having changed his religion. Les Syndics dr. la paroisse de Lachine vs. Fallon, S. C, 6 L. C. J., p. 258. : — Vide DixMES. « *; li Rule: — It is by rule and not by a direct action that the clerk of the Court, in whose hands a deposit has been made, should be called on to pay over moneys. Merizzi and Cowan, Q. li., 6 L. C. .T., p. 62. Rule of Practice: — 1. In default of any j)roof that the Rules of Practice of the Superior Court prepared and signed on the 17th Dec, 1850, have been registered in the district of Gasp6, the Court here will not apply any such rules to any act done within that district. Macfarlane vs. McCraclcn, S. C, 5 L. C. .L, p. 254.* Vide 2 L. C. J., p. 287. 2. The 26th rule of Practice of the Circuit Court, with respect to figures used in a return of service, is not djjeinc de nullite. Lamothe and Garccau, (J. B., 13 L. C. R., p. 88. 3. A practising attorney cannot become bail or surety in any proceedings cognizable by Su[!erior Court. Routier and * la not the Superior Court sitting in the district ofGaspe a part of the Suiterior Court siuing in the district of Montreal ? If so, is not the Court (i. e. the whole Court^ obliged (o know its own registers ? Again should it not be presumed, at all events, that the Court at Gaspi had performed its duty and enregislered these Rules of Practice 1 RU L 269 Rule op Practick :— Oingrax, S. C, 3 L. C. R., p. fS7; nor in Ap|)«nls from th«^ Superior Court to the Qneeirs Bench, without contrnveuin;; the 6lh rule of practice. Lemelin and Larut, Q. U., 10 L. C. R., p. 190. 4. The part of the 7lh Rule of Pructice which prescribes " that all writs of appeal und error shall bear the signaturn of the attorney suing out the appeal" is meroly directory and not peremptory. The rules of a Court are within its control, and it will relux them where a rigid enforcement t>f them will o|H!rate an absolute injustice. Rosa and Scott, Q. B., 9 L. C. R., p. 270. And so on motion for leave to examine witnesses, a notice of sm-h million served on Sntur- . A motion fur leave to exiimino a witness about to leave the Province, is exempted from the operation ol the 11th Rule of Pructice ; and a notice of such motion, served on Saturday, is sufficient for the presentation of such motion on the Monday, liynic et al. vs. Fitzsvnmons and Fisher, S. C, 10 L. C. R., p. 383. 6. Sufl'cient notice of a petition for discharge from a capias is given if it be starved on Saturday between l and r> P. M. for Monday morning. 7\(Mdge vs. Morange, S. C, 6 L. C. J., p. 31-2. 7. Service at six in the morning is insufficient. McFarhitir vs. Jamesrm, S. C, L. R., p. 89. And service of summons before 8 A. M., is null, tlie 18th Rule of Practice being enjoined A imne de nullilL Kinney and Perkins, Q. B., 13 L. C. R., p. 302. And 7 L. C. J., p. 207. But the service of process ad respondendum, made nfler sunset, if made before eight in the evening is valid. Robinson vs. McCormich, S. C, 1 L. C. R., p. 27. 8. The 76th section of the Judicature Act of 1857, 20 Vic. c. ^'\>, [Con. Stat. L. C, cap. S3, sect. 88,] has virtually repealed the 21tli Rule of Practice of the Superior Court, requiring the filing of exhibits, on which a declaration or other pleading is founded, at the time such pleading is filed. Denis vs. Craivfard, S. C, 4 L. C. .T., p. 147. 9. But omission to file a bill c>f particulars, even where defendant is in gaol under capias, will not entitle defendant, under the 30th rule of practice, to dismissal of the action. Henderson vs, Enness, S. C. 2 L. C. J., p. 187. • 10. By the 4'3rd Rule of Practice the \nscx\\\i\on^ox en quete is general, so when plaintifl'has finished taking his evidence, if defendant be not present, the cnquete will be closed if plaintiff requires it. Bowker vs. McCm-kill 4* Graham, S. C, L. R., p. 1. 11. Under the 95th rule of practice, a contestation by plaintiff of the declaration of a tiers-saisi on an attachment afler judgment, will be rejected, if it be not made within the eight days limited by the rule. Masson et al., vs. Tass4 f -^ et al., S. C, 6 L. C. R., p. 71. iji t 1 1 ! i 1 ! 4im i i ■< :, 270 11 UL 1 1 1 1 ''/■ 1 ^ ' ^' ,; ^'^' '^^'i p' J Rule of Tractice :— 12. The report of distribution cannot be contested after the delay fixed by rules of ])racticc, even wliere a speciul case is shewn, supported by affidavits. Forsyth vs. Blorin et oL, a»id r/iirr.v oppts., IS. C, 2 L. C. J., p. r)9. But in the cnsr of Woodman vs. Letonniean a»d Lctoiirneau, 8. C, 3 L. C. .T., p. 27, it was held, that with the permission of the Court, on cause shewn, im oj)positiun aji?i dr amscrvcr might Ix; lilcd at any time before the homologation of the report ol distribution. And in the case of Prevost vs. De/rsdcrnirrx and F/othitii:Iiam, S. C, 3 L. C. .1., p. 165, it was held, thur the contestation of a Judgment of distribution will he per- mitted at any time before its homologtition, on cause beini;, shewn and ]'ayment of costs. And so also in Claphi vs. IVagle and IXaglc, S. C, 4. L. C. J., p. 28(). Ihit in Ramsay vs. Hitchius and Ramsay, 8. C, 4 L. C. J., ]>. 285, it was held, that where the omission was not due to the oversight of the attorney, the Court will not allow the opposition to be filed so as to disturb the parties collocated, but will admit it so as to give the new opposant the moneys not distributed. " : — Vide Vo. Uistkibutu)N. Rule of the Sea : — 1. It is a generally received opinion among sea- jnen, that it is imprudent and improper to anchor directly a-head or directly astern of another vessel in the direction of the tides or prevailing winds, unless at such or so great !i distance as would allow time for either vessel to take mea- sures to avoid collision in the event of either driving from her anchors. The Cumberland, p. 79, S. V. A. R. It is moreover the usual practice not to anchor near to and directly in another vessel's hawse, that is, directly a-head and in the direction of the wind and tide ; and in the books which treat on seamanship it is mentioned as a thing to be avoided, not only to prevent accidents from driving in bad weather, but also in order that either vessel may be able to get under weigh without risk of collision with the other, lb., p. 80, 2. It is a rule universally received among seamen, and to be found in books on seamanship, that when there is doubt, the vessel on the larboard tack is to bear up or heave about for the vessel on the starboard tack. The Nelson Village, p. 156, S. V. A. R. 3. When a vessel is in stays, or in the act of going about, she becomes for the time unmanageable, and in this case it is the duty of every ship that is near her to give sufficient room. The Leonidas, p. 229, S. V. A. R. When a ship goes about very near to another, it is her duty to give a preparatory indication, from which that other can,, under the circumstances, be warned in time to make the ne- cessary preparations for giving room. lb. 4. When two vessels are approaching each other, both having the wind large, and are approaching each other so that it each continued in her course there would be danger of collision, each shall port helm so as to leave the other on the larboard hand in passing. The Nigara, p. 315, ib. But it is not necessary, that because two vessels are pro- ceeding in opposite directions, there being plenty of room, R TT L to S A I 271 Rile of the Sea : — the one vessel should cross (he course of the other, in order to pass her on the larhoard. lb. 5. It is the duty of every vessel seeing smother at anchor, whether in a proper or improper i)lnce,and whether properly or iin| roperly anchored to avoid, if jiracticable and eonsistcnf with her own safety, any collision. The Jnlni Mumi, p. iilif), S. V. A. R., in notes. 6. One who has the mannjycment of a ship is not allowed to follow that rule to the injury of the vessel of another, when he could avoid the injurv by a different course. Thr Niagara— The Elizabeth, i)."323, S. V. A. R. 7. Rule us to ships meeting each other, Merchant 8hippinjif Act IS.H, which came into operation on 1st May 18r)r), (17 k. 18 Vic. c. 104., sec. 296.) The Itiga, p. 335, .^. V. A. R. 8. Where two ships, close hauled, on opposite (iicks meet, and there would be danger of collision if each continued her course, the one cm the port tack shall give way, and llio other shall hold her course, unless by so doing she would cause unnecessary risk to the cither. The Mary Ihinnatifue, p. 353, S. V. A. R. Nor is the other bound to obey the rulr, if by so iKiingshe Avould run into unavoidable or imminent danger ; but if there be no such danger, the one on the starboard tack is entitled to the benefit of the rule. lb. Rules and Regulations: — Made in pursuance of the Imperial Sta- tute, 2 Will. IV, c. 51, touching the practice to be observed in suits and proceedings in the several Courts of Vice-Ad- miralty abroad, and estaljlished by his late Majesty's Order in Council, at the Court of 8t. James's, the 27th of June, 1832, pp. 1 to 51,S. V. A. R. Supplementary rules established by Her Majesty's Order in Council, at the Court of Buckingham Palace, the 2iul of March, 1848, p. 52, lb. Ruling of a Judge in Chambers: — Vide Appeal. I« Hi :-,.:!? !i Saisie-Aruet : — 1. An attachment will lie against two persons ap- pointed by commission from the Crown to the oflice of Sheriff for the non-payment of moneys levied by one of them, although the other may not have assumed the duties of the office or acted in any manner under the commission. Black vs. Newton S/- al., S. R., p. 298. The defendant has a right to contest the validity of an affidavit and saisie-arrSt, before judgment on an exception d la for me. Biroleaii dit Lafleur vs. Lebel, C. C, 6 L. C. J., p. 168. And this independently of the contestation which may be raised upon the summons ad responde/iduvi. Leslie believe, and doth verily l>clieve that tlie defendants iirc immediately about to secrete their estate, debts ami ( Uects with intent to defraud," iV.c, is insufficient, and not u accordance with the 127 Geo. ril, c. 4, [Con. St. L. C. ' ap. 83 sec. 46,] or the form prescribed by the 9 (Jeo. IV, e. 27, [Con. St. L. C. cap. 83, S(Vts. 53-4-5-6.] Baile vs. Nelxon, S. C, 5 L. C. R., p. 2H). Vide also Laing vs. Brcsler, Supra No. 6. 11. All affidavit for a saisie-nrref. simple in which it is said " that deponent is credibly informed, and doth verily believe that the said defendant is immediately about to secrete his estate, debts and effects with an intent to defraud," is insufficient, and not in conformity with the requirements of the Statutes 27 Ceo. Ill, c. 4 [Con. St. L. C, cap. 83, sec. 46,] and 9 Geo. IV, c. 27, [Con. St. L. C, cap. 83, sects. 53-4-5 6.] Masuire vs. Harcey, S, C, 5 L. C. R., p. 251. 12. An affidavit for a writ of saisie-arrit in which it is stated : " That deponent is credibly informed, hath every reason to believe, and doth verily in his conscience believe, &;c.," is sufficient being in accordance with the form laid down in the 9 Geo. IV, c* 27, [C. St. L. C, cap. 83, sects. 53-1.-5-6.] Hayes vs. Kelly, S. C., 5 L. C. R., p. 336. 13. An affidavit for saisie-arrit in whicli it is alleged : '• That deponent is credibly informed, hath every reason to believe, and doth verily in his soul and conscience believe, &c." is sufficient. Fitzback et al vs. Chalifou:r, S. C, 5 L. C. R., p. 385. 14. A writ of saisie-arrit issued upon an affidavit sworn before a Commissioner of the Superior Court, without an order from a Judge of the said Court to that effect, is void, and such writ of saisie-arrit will be set aside and quashed. The Deputy Prothonotary will not be permitted to substitute the words, "Deputy Pro. S. Ct.," for the words, "Comr. S. C," affixed by error at the bottom of an affidavit for a writ of saisie-arrit, because such act having a retroactive effect might prejudice the interests of the defendant. Gagnon vs. Rouseau, S. C, 6 L. C. R., p. 461. 15. Clerks of Commissioners' Courts have no authority under the 14 and 15 Vic. c. 18, to receive the necessary affidavit and to issue writs of attachment before judgment Ex-parte. Corpentier, S. C, 6 L. C. R., p. 319, also L. R., p. 66. 18 ! i 1 * '1 I? H 274 S AI 41 i «» .^■^'■wi Saisie-Arret: — 16. A misie-arrSt issued for the recovery of a debt not duo. hut which became due during the pendency of the suit, i& properly declared good and valid by the final judgment ii\ the case ; and the truth of the contents of the altidavit can- not in any way be attacked in such suit. Prifontame and Provost et aL, Q. B., 1 L. C. J., p. 104.. 17. An affidavit for saisie-airct before judgment must be certain and positive in its terms, so an affidavit which says that without the benefit of a writ, tVc, plaintiffs vui't/ lose theii debt or sustain damage, is bad. Rdtcrtson ct ah, vs. AtVivcV and McDoiigull, S, C, 7 L. C. .T., p. 48. But an affidavit fur an attachment before judgment con- cluding with the averment in the disjunctive, that the plain- tifl' without the btnefit of an attachment will loose his debt, or sustain diunagc is not bad lor uncertainly; also, that although such an affidavit conforming to the 48 section 22 Vic. c. r>, [G. y. L. C, cap. 83, s. 4.7,] contaijis si)cci[il reasons which are in themselves insufficient, yet if there be averment-i to answer the requirements of the lOth .section of the ordin- ance 25 Geo. III.,c. 2, [C. S. L. C, c. 82, sec. 17,] or equiva- lent thereto, the attacluuent Avill be supported under the latter law, notwithstanding it contains the allegation that the de- fendants continue to carry on their business. Miluc vs. Ross et al., S. C, 4 L. C. .T., p. 3. 18. And an affidavit upon which a saisic- arret before judg- ment is issued, must state the cause of indebtedness witli sufficient clearness to make it appear that the defendant is •\y indebted, and the omission of a material fact will not l»e cured by a general allegation of defendants' indebtedness. So where it was said that " goods, Avares, and merchandize," were sold and delivered by plaintiffs, without saying touhom tlie affidavit will be held to be bad. Beaufield ct al., vs. Wheeler^ S. C, 5 L. C. J., p. 44. 19. Amotion to quash the wx'ii d''assignation et saisie-arret , cannot be received, because it tends to dismiss the action and that even if applicable to the writ, it came too late, the writ being returnable on the 22nd July, and the motion be- ing made on the 22nd September. Marchand vs. Cinq Mars S. C, 6 L. C. R., p. 473. But a motion to qaash. a, saisie-airet, made on the fourth day of the term next afler its return is in time. And where two motions were made and the first was taken en delihere, the second will be received and filed so that it may be disposed of after the first is adjudicated upon. Bcaufcld et al., vs. Wheder, 5 L. C. J., p. 44. 20. To obtain a writ of attachment g« main tierce it is not necessary in the affidavit to mention the name of the garni- shee. The City Bank vs. Hunter and Maitland, 2 Rev. do Leg., p. 17 1 . But if the name of the garnishee be mentioned in the writ and the sheriff seize in the hands of another the seizure will be null. Davis and Beaudry, Q. B., 6 L. C. J., p. 163. 21. The court will quash an attachment by writ ofarret- simple whereby any other person than the defendant is divested of possession of his property. Wood and Gates et al., S. R., p. 536. And in Lee vs. Taylor, S. R.,538, it was held S AI 273 J it is not, Saisie-Arret : — that if an attachment be issued to attach goods in Iho hand.> of A., and under the writ the Sheriff attaches goods in the liands of B., the sei/,iire is null ju-opia- defectiiot auctfiritjitis. and the court will restore the property to B., without cuquiry into his title to it. 22. The appellaut leased a vessel to defendant in IIk i:onrl below, to trade from L Itrador to <,^iiebcc. On the iinivnl ot the vessel at Quebec, the defendant ilelivered to respondents, consignees of certain part uf the cargo, the nicrLlr.uidize shipped to their account. While the rcspondLiits were receiving from the wharf the cargo so delivered, the itp[)cl- lant caused it to be seized ibr tiie iiiro of the vessel, llcs- pondenls intervened claiming the goods. In tlie (.}. 13., con- firming the judgment of the 6. C, it was held, that ilic good.-? seized were in the possession of the vcspoudents, who wcie not indebted to the a)ipellant anvi the seizure Wiis set iisif!.'. Trcmhlay and Noah ci uL, Q. B., S L. C. 11., p. 310. •23, According to tlie |)rovisions of the 1*2 \'ic. e. •':i8, sec. 79. [C. S. L. C, cap. 8U, s. l."^, c;ip. S3, sees. 43, HI, IS!*,] ;. writ of sdisie-anet after judgment, may be made rcluruahle in vacation, if it issue in an appealable case, and il is tin; duty of the baiiili" executing such writ lo deliver it on or be- fore the return dny, eitlier to the attorney or to the ]i!irtv from whom he received it, or to the lile in tlie ollice of ihe C'erk of the Court, into which it is returnable, alth.)Ug]i he was not specially riMjuestcd so to do. And having received such a writ as bailiff, to execute it, he will not be permitted to urge the want of proof in the record, of his being a bailiff The proof of the amoimt of the debt due by the tic/s-fnise to the defendant, yf tlie attachment of it in the hands of such tiers-said, and of the payment of such amount to others thiin the plaintifti the })laintiff's judgment remaining unsalished, is sufficient to entitle the plaintill' to recover damages lo the extent of the amount due by such garnishees, without direct evidence of the defendants insolvency. Lahipsonvs. Bo.rret, S. C, 2 L. C. R., p. 77. 24. Where defendant has left the Province iifter action brought, it is unnecessary to serve him with a writ of saisie- arret after judgment. Mcttayer etal. vs. McGarvey, S. C, 6 L. C. R., p. 148. Also, Jones vs. Saumur dit Mars and Leroii.':, S. C, 2 L. C. J., p. 60. But see contra Ilogan vs. Gordon and the Bank of Montreal, S. C, 10 L. C. R., p. 21. And the service must be with the same delay as a writ of sum- mons. McLaren et al. vs. Hutcheson and Frascr, C. C, 6 L. C. J., p. 45. 25. AVhere the defendant has left the district of Montreal since the service of the original process, a writ oi' saisie-arret after judgment may be legally served on a Clerk in the office of the Clerk of the Circuit Court at Montreal. Kearney vs. McHale and Pariseauit, S. C, 7 L. C. J., p. 227. 26. Irregularities and informalities in a saisie -arret after judgment cannot be attacked by an exception d la forme, and such an exception will be rejected on motion. MolsoJi ". vs. Burrouglis and the Bank of Montreal, S. C, 3 L. C. J., p. 93. And in the same case it was also decided that a 18* IS'. I if 'I It \ \\ I it u 276 S AI \ \ 1 1 ( ■ 1 I E-,' '■■'■ II : 1'^ ■ k R ■ 1'' i: '-■ ■ , ' ' -■'; \p ■ '^dw fi:: V, fln /*'■ ► , : h. Saisie-Arret: — snisie-arrit cannot be dismissed on motion for irregnlarities, S. C, 3 L. C. J., p. 97. But in a note at page 95 of the same volume mention is made of a case of Pinsonneault vs. Mailloux and IJ'JIeuretix, No. 334, S. C, as being ia contradiction to the ruling in the case of Molson vs. Bur- roughs. In it tJjo reporter maintains that the defendant pleaded by exception that the fic/s-saisi was not the veritable di'biteur. That nevcrtholcss in spite of tlie objections of plaintiff's counsel, to the effect that defendant had no interest. in preventing the T. S. from paying the debt, and that :i misie-arrH could not be attacked by an cxeoj)tion, the Court held that the mhie-arri-t wax irregular and insufficient and that the exception was well founded in Inw and the saisie- arret was declared null and void. • And generally the debtor has an intertst to contest the same-artri. La Banque dn Priq^Ic vs. Dotipgani, f*. C, I L. C. R., p. 107. But a defendant hns no interest in contesting the declaration of a ticrs-saisi , o»i the grotind thiit the gooils of such tiers-sam are under seizure for the amount admitted by him in his declaration to be (tue to the det'endant, and that such a contestation will be dismissed on demurrer filed by the tiers misi hinisolt'. Const.alilc (S- at. vs. (iilhcrt. ^^ a), mid. Simjuioit i^- at., S. C, 4- L. C. .f., p. 299. 27. On certiorari it was held tliat a ju-siice of tlie peace has no right to issue a writ of saiaiearret after judgment. Ex parte The Vorporatinn nf St. Phillippe, S. C. 6 L. C. R., p. i'Hi. 28. Affidavit for ai ittaclanent under the 177 Article of the Custoni is not dc rigiieur. Sinclair vs. Ferguson, also, Blilts 4* ''^- vs. Ferguson, S. C, 2 L. C. .T., p. 101 ; also, Lednc vs. Tourigny, 6 L. C. J., p. 24'. But the reverse was held at Quebec, in the case of Poston if- al. vs. Thompson, C. C, 12 L. C. R., p. 252. 29. An affidavit lor saisie-arret sworn before a commis- sioner of the Superior Court is irregular. Fleming vs. Fleming, S. C, (5 h. C. R., p. 473, also, Gognon vs. Rousseau, lb.,x>.A wharf. Jones vs. Lemesurier i^- al., 2 llcv. de L6g., p. 317. 'i. In an action for rent of a wharf, a certain quantity o) lire-bricks and hearthstones were seized by process ofsaiak- gagrrie. To the action the delendant pleaded payment ; n third party had intervened and claimed the bricks and the hearthstones as his property, and the Superior Court helcf that the i)lea had been made out, and the action was there- upon dismissed and the intervention maintained. On appeal it was held that the plea of payment was not made out, thai, the lire-bricks and hearthstones dej)Osited upon the said wharf and seized in the possession of the said defendant, for rent oi' tlie whurf, were legally seized, under process oi sitisic-gagcrie, to secure a lawful demand for rent of said wharl in arrear ; that the said bricks and hearthstones were liable and subject l)y law to the privilege of landlord stqif/' invctih rt i/lafis, as goods and merchandize stored, kept and )»laccd, for deposit and sale, upon the said wharl', by the agent and factor of the owner, who under the .Statute 10 iV 11 Vic, c. 10, had the power to pledge the iroods t>f liis con- signor. Jones a)i(l Anderson, «i. 13., ti L. C It., p. 131. Vidt Appendix, Lessor, !Nos. 1 and 2. 3. In an action for rent the saisie-gageric may be left ai, the domicile of the defendant, although he be absent, and such defendant may be legally constituted the guardian o " the effects seized, and may be compelled by contrai/dc pto corps to produce the same, unless he can establish thai v lici* the saisie-gagerie first became known to him the goods w ere noi. in his possession. Munn vs. Ila/fat.;/, S. C, I L. C. 11 ., ]i, 1 70 . 4. Damages cannot be recovered for suing out maliciously, and with marked rigor a writ of saisie-gagcrv' where the rcii' was really due. David and Thomas, Q, B., I L. C. .1.. p. (.if*. 5. The proceeding for saisie-gagerie an'' ojectnicn! nnde.- the Act 18 Vic, c. 108, sec. Hi, [Con. 5?t i.. C., ntp. U>, sec. 16,] cannot be maintained, unless founded on a lease, or o\ proof of occupation by and with tho consent and leave of the apparent proprietor. Dubeau and Dubcau, Q. B., S L. C. Tl., p. 217. 6. A landlord has a right ofgagcric over all tlie goods ot a tenant, which furnish the premises leased, and can ])vevcnt them being carried away or sold until he is paid tla^ rcn:- due, and the other terms for the year if he have ;i notaria' lease. Bell vs. Coulin and Sinccnncs, rS. C, 5 li. C. .1., [>. 337. Vide Appendix, Lease, No. 1. 7. And a lessor has a right to cause the movea1)le c■f^cel^j and household furniture upon which he has acquired a liei' or privilege for rent, and which arc removed from the pro- mises leased, to be saisie-i.iretes by process of saisie-gagcrir or saisie-gagerie en mains tierces 2^0.^' droit dc suite, and this as well for the rent due, if their be any due, as for the rent tf> accrue thereafter, if none be due. Aylwin ct al. and GiUvrai't ! ■■' 'I 278 S AI .'■ I. li ii(.::r Saisie-Gacerie : — Q. B., 4 L. C. R., p. 360. Also Rodier vs. JoHy, S. C, 4 L. C. J., p. 15. Eut it need not be stuted in the writ to what place the goods were removed, lb. However the lessee must be a party to the preceding. Aidd vx, Laurent ct al., C. C, 7 L. C. J., p. 49. 8. But to exercise tJie right of saisie-gagcrie par droit dr suite, plaintiff' must show that not enough of furniture was left in the house to guarantee the payment of the rent. Zeigler vs. McMahon, I Rev. de Leg., p. 95.* 9. An action will lie by a landlord against a tenant wliu has abandoned a house leased to him for a term of years under a notarial contract, in consequence of the bad state o1 repairs of the same, and the tenant is liable for the rent for the whole term of the lease; and a snisie-^agerie par droit de suite will be declared good, though no rent was due at the time of the abandonment. Boulanget vs. Doiitrr, S. C, 4 L. C. R., p. 170. 10. In August, 1853, Bonner took out a saisic-gagerif against the goods and chattels of Hamilton, his tenant. Tii September, 1854, he obtained judgment but did not then execute. In May, 1855, the goods attached were moved into the possession of Johnston, and no saisie-arrft par drm't de suite was taken out by Bonner within eight days after the removal ; but sometime after the expiration of the eight days he took out a writ of venditioni exponas, in virtue of which, after several contestations, the goods and chattels in question were sold. It was held in the Q. B., reversing the judgment of the S. C, 6 L. C. R., p. 42, that Bonner had lost his privilege as lessor, and that Johnston had acquired a privilege upon the said goods and chattels to his prejudice. Johnston and Bonner, Q. B., 7 L. C. R., p. 80 ; also 1 L. C. J., p. 116. 11. But the droit dc suite maybe exercised after eight days, as between landlord and tenant, during the existence of the lease. Mondelet vs. Power, Q. B., 1 L. C. J., p. 276. Vide Idler vs. Clarke, S. C, 11 L. C. R., p. 490. Saisie MoLiLitRE: — Vide Execution. " : — " Rebellion a justice. Saisie Rkvendication: — 1. In cases of revendication where the affi- davit is manifestly bod, the writ will be quashed on motion ; but where the affidavit invites an issue on the allegations, llio proper proceeding is by exception a la forme. Routh et al. vs. Mcpherson, S. C, 9 L. C. R., p. 413. 2. An affidavit to tlie effect that the lessee of a vessel to run between Montreal and Upper Canada, had incurred liabilities on the vessel at a United States port, that he has become insolvent, en deconfiture, and that should the boat run to Tapper Canada, she would in due course call at such port of the United States, and be, in all probability, seized there for the payment of such liabilities, is sufficient to sustain an attachment or saisie revendication of the vessel by the lessor. Rontli et al. vs. McPherson, S. C, 4 L. C. J., p. 45. 3. After the dissolution of a partnership, one of the late partners cannot revendicate his portion of the goods of the ■I ■ ■ _ — — ^— — i— »^« * TliJs was an acticm of misie-gagrrie 2>a,r droit de suite for rent iiot due. !l i S AI 279 Saisie Revendication :— late partnership, which may Iiavc fallen into the hands of the late co-partner, even although the lulter be un the point of converting them to his own use. Maguire vs Bradfey, 1 Rev. de Lig., p. 367. 4. In an action en revendication against an individual who has taken timber off wild lands without authority, the plain- tiffs sufficiently establish their proprietorship by acts of ik}s- i?ession of the land at different times without producing title deeds. The Britisfi American Lund Company vs. Stimpson, L. C, 3 L. C. R., p. 90. 5. The validity of a saisie revendication cannot be affected by the absence of rccors. Deajardins vs. Dubois, S. C, 1 L. C. J., p. 81. 6. Goods sold for cash, but not paid for, may be followed and claimed, in the hands of a third party, in an action of revendication, provided that the action be commenced within eight days after the transactions, and that the goods have remained until i has a privilege in jireference to the other creditors upon the goods by him so sold and not paid for, and which have been seized in the possession of the debtor, and the vendor can stop the sale. Mediae is, Kelly et al. 2 Rev. de Leg., p. 126, and Baldicin vs. Binmorc et al., S. C, 6 L. C. .l.,p. 297. And the vendor has a privilege for the price of all moveables sold in the possession of his debtor, even although the vendee had made repairs to such moveables, provided they can be identified ; and the payment by promissory notes which have not been paid at maturity, and are produced, will not defeat the vendor's privilege. Noad and Lampsou Q. B., 11 L. C. R., p. 29; and so also it was held in Douglass vs. Parent and L'rue, S. C, 12 L. C. R., p. 142. And in Ho- bci-tson et al. vs Fergusson, 8 L. C. R., p. 239, it was held that the vendor of goods sold avec terme, may revendicate the goods in the possession of the vendee, who has become insolvent ; and the privilege exists though the goods have * There rceins to be a .slight discropaney between the ru'injr in the case of Aylwi/t vs. MfNalli/f&nd this case, as far as regards the condition of the goods revendicated ; grain mixed with otJier grain, even of a like kind, can hardly !« considered as being in the same Male in which it was delivered. Nevertheless the decision is in conformi.y with the distinc- tions of the Koman Law which gave the action in rem in this very case. Inst. II, § 28. ll 2d0 S A I to SAL (» W 'I' ,.» li . ■ , I' i *3 1-, '■: (. :'■ '.Ui ■■%i r' ■"v 1 • < 1 . t., <" 1 ' ' i 4 ^ Wit ■'1 k,L .i Saisic Hevendication : — ceased to be wholly in the {lossession of the vciideo. Auv an affidavit for i\ suisie revendiaUimi is nof necessary in such rases, (Lalui vs. Tourigny, 6 L. C. J., |>, 24,) and service of the declaration may be made at the Sherifi 's office, undot the 7 Geo. ]V, c. H, [C. S. L. C, cap. 83, sect, f)?] ; also, 2 L. C. .r., p. 101. Vide also ih. Sinclair rs. Fcrf;7(sson . also, Mii/s ef tiL vs. Frrgjtsson. But cnniro BosUm ct id. Vi. Thmnpsov, C. C, 12 L. r;. R., p. 2!i2. Also, in Tmiancc ct af . VS. Thomas, !S. C, 2 L. C. .1., p. 99, it was held, that the privi- lege of the vendor on floods sold avrc tcnne, and delivere to destroy the privilege of the vendor. THv «!(• al, rs. Fair- childs 4- al S. C, 6 L. C. .T., p. '269. 11. An attachment under the 177th article of the Custom, cannot be tried by motion. Tomnicc ct al . r-'i. Thomoii,'h. C, 2 L, C. J., p. 98. 12. A thing .seized on process of saisie rcvcndicatimt , ami given over to the charge of a gardien, may be restored tc- the plaintifTon his application, by a .fudge in Chancery. L-.' Sotieti Canadienne dc Montreal vs. L/imontaunc, S. C, 3 L. C. J., p. IS.*). 13. And in a case of lialdvin rs. Bivmorc el al., it wa> lield, that the plaintiff has a right to obtain delivery of fiom seized by him as a vendor under a wxiX. oi misic cnnscrvatoiTc . on giving security that the flour will be forthcoming, ti> abide the future order of the Court, or the value thereof duly accounted for by the plaintiff S. C, 6 L. C. .1., p. 29!'K And in the same case it was held that the vahu- to 1)0 s» accounted for, is the value at the time of its being given t(» plaintiff, from which date the plaintiff .shall be accountabl*? therefor with interest. S. C, 6 L. C. .)., p. 297. : — Vide Curator. - *' Damages. - " Registry ok Vessels. Salary : — 1. Salary not due at the time of service of writ of attach- ment, cannot be seized. M(do rs. Adhemar and La Banqxc du reiq)lc, C. C.,.] L. C. J., p. 270. 2. Salary or wages accrued sid).sequeut to dismissal, anJ prior to termination of agreement, cannot be recovered by i'. merchant's clerk dismissed for absence without leave. Char- bonneau vs. Benjamiti, S. C, 2 L. C. J., p. 103. And {>,• also where a servant refused to obey a lawful order of hi- master, and is discharged in consequence. Hastie vs. Mm- land, S. C, 2 L. C. J., p. 277 ; but where a clerk employot^ for the yeav be dismissed without a cause, he may bring hi^ SAL •281 Salary :— « ._ JSalk :■ action for the Imlnnce of \vn;^es, mid not, for the daniupcs. Oudlcl vs. Fnnrnier (lit PrvfoiUninCy S. C, G L. C. .f.,i>. 116. • Vide Assessors. -I. Tlio .sale ol <;ootls by iulinonstirntion is only cuiiditiDiial, until tlie ineiisiirement aclnally takes place ^ so dial if in the meantime such f>oods weio destroyed by liie, the loss Avould fall oil the vendor, the risk (pcrirulum re' rciitfi(cv) still being his. Lcvicsnrier ct a/, ts. IjOgdU ct ol., 1 Kev. de Leg., p. 176. And if something more were reiiuirod to be done in order to identify the goods they are not in a fit state for actual delivery, lio^inll and I\t/fx)r?i ct n/,, P. C, 12 L. C. R., p. Ifil. But jirupcrty after a sale perfoeled, though not delivered, is at tlie risk oi' the purchaser. McDnuuU vs. I'rasrr, S. V\.., p. lOI.' Actual delivery is not necessary to give full eflect to a sale of flour, so as to l)e at the risk of the purchaser. HoT/er i\- aL vs. Pricw iV n/.. C. C.,7L. CI., p. r)2. 2. A sale of salt on board a vessel lying in the river being complete, the vendor may resell it at the risk of the pur- chaser, who will be liable for the ditlerence between t.h(! price of sale and resale if the latter be less. Jachon vs. Fraser, S. C, 12 L. C. R., p. 108. 3. A sale ovDiium iHmoruin made by a trader whilst noto- riously insolvent, and after meetings ofliis creditors, which failed to result in any unanimous arrangement, to two of his creditors who, (as the sole consideration for such sale) be- came responsible lor the payment of the divideiul he was desirous of paying by giving their notes for an amduiit suffi- cient to cover the dividend, all of which notes actually paid, were so paid, out of the proceeds of the sales of a portion oC tiie goods consigned, is not eillior a simulated sale or a sale in fraudem creditoruvr . doinni d >: iS' al. vs. JShmn and Smith JIf als, S. C, 2 L. C. J., p. 19r>. IJiit this case was reversed in appeal. 10 L. C. II., [). 122, iuid 5 L. C. .1., p. 1. i. A deed purporting to be a promise of sale, but contain- ing saisine in favor of the parchaser, and transfer uf jkjs- session by the vendor, is in fact a deed of sale, notwithstand- ing the condition to give a title only after payment of the first instalment. Kevr and Livitis;sfot?, <^ 1}., I L. C. U., p. 275. And such a sale of immoveables gives rise to lods ct rentes. TTic Seminary of Quebec vs. Maiinirc, S. C, 9 L. C. W., p. 272. And a promise of sale, followed by possession, is equivalent to an absolute sale ; and an hypothecary claim created against the vendor, subsey a lirm, one of the partners in which was the person mentioned in the power of attorney, and although the terms of payment for the lands in ([nestion wero different from those mentioned in tho /rttrr m/.vs/v. Cutmniniis and Qidfital, (}. R., 7 L. C. R., p. 139. 13. Questions as to the validity of the sale of real estate will be determini'd by the law of the local domicile of th** parlies, and therefore a Siile of real restate in Lower Canada, made in the Tnited Stales, by rv married woman whos'* matrimonial domicile was Lower Canada, without th^ express authorization oi' tier husband, is valid. Liiiollcltv i.v. Martin, S. C, 2 L. C. .1., \\. (i\. H. The sale of an immoveable property subject to a rnit^ viag^rr is susceptible of the same stipulations as an oneroii,-* donation. And in such a sale the pnihibition to alienate may be validly imposed on the purchaser with a resolutory clause in case of coiitraxciition. And a voluntary resolution is valid against third ))arties, vww when it does not appear to have been caused by the occiironce provided for in Ihr resolutory clause ; aiul such a voluntary resolution eflected for good and valid consideration will hUve the same etfect as a resolution judicially pr»)nouneed. And an hypothec, created iu favor of a third party by the purchust-r, during his pos ession, is distinguished by such voluntary resolution nithough not caused by tlH> event provided for, and althougli made in the form of retr cession lor good and valid con- sideration. Lynch and Ila'uumit, (^ R., f) L. C. .T., p. 306. 15. When there is a sale of gtiods by sample, and the goods do not agree with it, the vendee must make knowii the defect williin a reasonable delay, — he could not claim to rescind the sale and return \\\q gfii)ds alter a delay of six n.onths. Josejili vs. Mwrn/r i|- al., '^. <"'.,'l L. C. .T., p. 288. 16. Held in the Superior Court:— That a purchaser who 1ms received a (plant it Y ol I'our sold by sample, is entitled, when sued lor the price, to a reduction, e(pial to the dimi- nished value of the ilour received, it being inferior to the sample. That the purchaser is bound on the receipt of the flour to have it examined without delay and to tender it back ; and that a notarial pr<'l(^sl and tender on the 2lst of July, was too late, the sale and delivery having been made on the 19th of June, although verbal notice of the bad cpia- lity of the flour had been given to llie brokers on the 27th of June. That the ])urchascr having sold part of the llonr, was not entitled to have the sale set aside for the remainder. Held in Queen's Bench : — That the ofier to deliver back the portion of flour remaining in the hands of the purchaser, was a valid olFer ; and that the confession of judgment 1 284 SAL Sale or Immoveables i^Vkh u « . (( u (( ••^— *^ tt « ; . (i It (( •__ «' 'ia :!<; ■ I , r J ^ rtii ^ '!• SAtE : — offered in one of llie pleas lor tlie balance of the price a\ as sufficient unci should have been accepted. That the pm- chaser was entitled, as part of his damages, to deduct the cost of transportation to and from his customers in the country, to whom part oithc Hour had been iurwaided without having been examined, and also the deduction from the price allowed to the customers on such sale. Leduc and Sho.v- 1\- nl., 13 L, C. R., p. 438. Action Uesolutoiue. asskssmknts. Fkanc kt (.^U itte. Lease. Power or Attorney. Sale OF Ship: — Sale of shi}» has not thceliectof discharging sta- men from their engagement. The Scotic, p. 160, J?, \'. A. R. Sale super non domino: — Vide AnjunicATAmE. Salvage: — 1. The mere quajitnm of service jicrlbrnicd i.s not the criterion for a salvage remuneration. Tlte EfnjaJ Mohhf — Davison, V. A. C, 12 L. C. R., p. 309. 2. A vessel struck on Red Island shoal in the river 6t.. Lawrence, at the end of November, 1833, and being aban- doned by the crew, was subsequently carried off liy the ebh tide. She was followed by four young men, who, with great perseverance, courage and skill, and with great peril of their lives, forced their boat through the ice, got on boiud and brought her back to the bay of Tadonsac, where slu* remained in safety during the M-intcr, and until she pro- ceeded on her voyage in the following spring. On a value of J63000 currency, the Court awarded ^£500 currency am! costs. The Court ruled that in all cases of salvage prote^N ought to be brought in. The Electric, V. A. C, ^ S. C. It,. p. 53. 3. The Palmyra sunk in tlie St. Lawrence, and \\u.> raised and saved by the machinery on board the Diriixo and the great skill and experience of her master and crew. £1,000 salvage was awarded. V. A. C, 10 L. C. R., [>. \U. 4. Persons acting as pilots are not to be remunerated r^s salvors. The Adronture, p. 101, S. V. A. R. Under extraordinary circumstances of peril or exortioji, pilots may become entitled to an extra pilotage, as for a service in the nature of a salvage service. Ih. Such extra pilotage decreed to a branch pilot for the River St. Lawrence for services by him rendered to a vessel which was stranded at Millo-Vaches, in the River St. Law- rence, on his voyage to (Quebec. Ih, .'>. In case of wreck in the River St. Lawit-iice, {Riniou»ki\ the Court has jurisdiction of salvage. The lioyal WiUivi,i, p. 107, S. V. A. R. In settling the question of salvage, the value of the pio- perty, and the nature of the salvage service, are both to be considered, lb. The circumstances of the case examined, and the service declared to be a salvage service, and not a mere loio.ti'j SAL to S A V 285 Salvage : — opens, though an ogieenient upon land was had between the parties in relation to sucli service, lb. Salvors have a right to retain the goods saved, until the amount of the salvage be adjusted and tendered. Ib.^ p. 111. 6. Seamen, while acting in the line of their strict duty, cannot entitle themselves to salvage. But extraordinary events may occur, in which their connexion with the ship may be dissolved de facto, or by operation of law, or they may excoed their proper duty, in which case they may be permitted to claim as salvors. The Rof)ert and Anne, p. 253, S. V. A. R. 7. Compensation decreed to seamen out of the proceeds of the materials saved from the wreck by their exertions. The Siflcry, p. 182, S. V. A. R. 8. Salvage allowed by Judge Kerr to the chief and second mates and carpenter, for their meritorious services, out of the proceeds arising from the sale of the articles saved from the wreck. The Flora, p. 255, S. V. A. R., in note. 9. Whether when a merchant-ship is abandoned at sea, sine ape revertendi aut recupcrandi, in consequence of damage received and the state of the elements, such abandonment taking place bond fide, and by order oi" the master, for the purpose of saving life, the contract entered into by the mariners is, by such circumstances, entirely put an end to ; or whether it is merely intern, ^'^d and capable by the occurrence, of any and what cirv imstance, of being again called into force. The Florence, p. 2.54-, S. V. A. R., in note. 10. In a case of very meritorious seryice rendered by two seamen and two young men, to a vessel in the River St. Lawrence, the Court awarded one sixth part of the property saved, and also their costs and expenses. The Electric, p. 330, S. V. A. R. Savings Bank :— That the President and Directors of a Savings Bank who illegally mix themselves up with a commercial banking business, although under color of acting for the bank, will bo held responsible for their transactions. And so in the case oi Pre vast and Allaire, a charitable institution appointed delegates to establish a savings bank. These delegates elected a president and directors, who adopted certain regulations, and, among others, one prohibiting any profit to the officers of the institution. Deposits were received, to be repaid with interest, and promissory notes were discounted upon the credit of individuals; upon these discounts a percentage was taken by the directors, and a portion of the funds was appropriated to their own use for their services. The bank or business, so established, was ultimately closed as being insolvent, and a portion of the debts due as special deposits, were bought up by the direc- tors at a composition in the jwund ; and it was held on assumpsit against the president and several of the directors, by one of the depositors who had been one of the above- mentioned delegates, for the full amount of his deposits : That without reference to the question of fraud, delit or quasi delit, the president and directors had become traders i ) 11 286 SAV to SCH «« %'^^ f m %■ '■ ' "fa. i i Savings Bank : — by mixiiig themselves up with a commercial banking busi- ness, tind were jointly and severally liable to each depositor for the amount of his deposits, and that had the plaintifi approved of the proceedings of the directors, submitted unnually at meetings ol the depositors, his approval, obtained by means of false statements, could not operate to his preju- dice ; and it further held that the charitable institution huH no interest in the matter, and that no action p)o socio, for or against it would lie. That the jjresident and directors having become a co-partnership or an unincorporated com- pany, the action was well brought against one or more of them, under the provisions of the 12 Vic, c. i^, [C. 8ts. L. C, cap. 65,] Q. 13., 11 L. C. 11., p. 293. ScEi.LE : — 1. It is essential to the validity of a sccHe that it bo exei- cised by a Judge in person, and not by a mere mini^teria! ofHcer of the Court, and that the property and papers, ^\ hich are the object of the scelle, remain under the seal oi' the Court, with a guardian to protect them. Iiichardso?i V6. Mulson, S. R., p. 376. 2. The Superior Court at weekly sittings has no jurisdic- tion under the Tith section of the Judicature Act, 12 Vic, c. 38, [Rep. 20 Vic, cap. ''-i, sec. 91,] to revise the order of a Circuit Judge orderi ^ a scclle, under the 41 Geo. HI., c, 7 sec. 18, [C. S. L. C, cap. 86, sec. 4,] the authority of the Court in such cases must be exercised in term. Where un- der the provisions of a will, the testatrix has bequeathed all her property to her husband, en pleine 2>^'op>'Ute, exemptiuj: him from the necessity of making an inventory, but on con- dition that he does not re-marry, in which case he is bound to account to 'the heirs, the order of a Judge of the Circuit Court requiring that an inventory shall be made before tak- ing off the seals which have been affixed at the instance of the heirs, is a prudent judgment consistent with the interest of all parties, and not to be disturbed. Cardinal and Belingc, S. C, 3 L. C. E., p. 435. School Acts : — Rights of dissentients non-resident. The Trustee!: of the Dissentient School of St. Henri vs. Youngy 13 L. C. R,, p. 473. School Commissioners: — 1. Power granted by a statute to remove masters for misconduct or incapacity, "after a mature deli- beration at a meeting called for that purpose," does not exempt them from the ordinary legal liability to justify their acts towards such masters, when called upon so to do. Broicnr vs. The School Commissioners of Lnprairie, S. C, 1 L. C. J., p. 40 ; and so also it was held in Gaudry vs. Marcotte, S. C, 11 L. C. R., p. 486. 2. School Commissioners are bound to respect the resolu- tions of their predecessors. The School Commissionetsfor thr Parish of St. Michel vs. Bastien, S. C, 4 L. C. J., p. 123. 3. The liability of a municipal corporation is measured by its powers, and consequently School Commissioners are not liable for the balance of an obligation given for the erection of a model school house, such balance being in excess of the amoimt authorized by law to be so expended. The Schoof % SCH to SEC 287 School Commissioners : — Commissioners for the Municipality of Bornsto)}, Q. n., 4- L. C. J., p. 363 ; also 11 L. C. R., p. 46. " : — Vide Secretary-Treasurer. School Municipality: — Under tlie 9lh Vic, o. 27, [C. S. L. C, ca^j. 15, sec. 64,] the various scliool municipalities h»d a right ti* obtain a surrender, from the royal institution of the land*; held in trust for school purposes within their respective municipalities, a school municipalitv having been dividctl under the 12 Vic. c 50, [C. S. L, Cjcap. If), sec. 30,] with- out any mention as to one of such lands held in trust, the Court held that the surrender should be made to the uuinici- pality within the limits of which the lot of land in quostii-u was situate. The S'hoo/ Commis&iovcysof St. Piprrcdr .SVr)-"/ vs. The Scliool Cotmninsionen nf Wi/Zicm Uevry, S. (:., 11 Ti. C. R., p. 68.» Scire Facias: — The writ oi scire frjcsty\ Ordnance and Taylor ct ai.^ Q. B., 1 L. C, R., p. 481, The writ of scire facias to cancel letters patent can only issue at the suit of the Crown. Exp. Paroflis, S. C, 7 L. C . J., p. 130 ; also L. R., p. 65. Seamen: — Vide Mariners. Seamen's Wages: — Vide Wages. Season of Navigation : — The word " summer " used in a contract to indicate the period within which timber should be delivered in Quebec, means the season of navigation which beginj* in the commencement of May, and terminates about the end of November, and cannot be understood as limiting the time strictly to the three months which form the season of summex as the year is divided in the calendar. Thibtmdeau atul Ij«e, Q. B., 7L. C. R.,p. 230.t Secretary-Treasurer : — 1. The Secretary-Treasurer of a municipa'i corporation cannot bring suit as attorney for the corporation in his own name. Boiirassa and Gariepy, S. C, L. R., p. r»5. 2. No one but the sovereign can sue by Attorney, lb. Vide Attorney-General, No. 2. And so a sous-voyer or inspector of roads cannot sue for the municipal connci'. Muirand Decelie, C. C, L. R., p. 75. 3. The Secretary-Treasurer cannot recover from the Schoci Commissioners, out of the School funds, any salary or pay- * Tin's case was reversed in the Q. B., June, 1864. in : i| U Jud^ Duval,that summer, in a contract, will always be held to mean summer in contrndU* tinction to winter, a period pretty well defined, at least in this region. 11 T W ^I'wffl'"' 1 ■■II r ; i m 'i I 288 SEC '* V ll' ■' f ■ •'( f!!'.! Secrktarv-Treasurer : — mcnt for extra services by him rendered to such Commis- sioners. PelUtier vs. Les Commissoires iVEcole jxmr la Municipalite de Ste. Philoniene, S. C, 4 L. C. R., p. 394. *' : — Viffe Service. Security : — Vide Appeal. Seci'ritv for costs : — 1. Security for costs cannot be given by one j)erson. Donald is. Beckett, S. C, 4. L. C. J., p. 127. Also Powers vs. Whitney, 8. C, (5 L. C. J., p. 'tO. 2. Where two defendants severally demand security for costs, separate bonds must be given ; but the same sureties in each bond will suffice. Bell et al vs. Knmvlton et ol., S. C, 13L.C.R.,p. 232. 3. Seaurity lur costs cannot be claimed by the sheriff or other officer of tlie court before obeying the order of the Court, Leversoii el al. vs. Cunningham and Boston, S. C, 1 L. C. J., p. 3. 4. The four days allowed to ask for security for costs does not mean lor days in term. Williams vs. Arthur ^- al., S. C, 6 L. R., p. 82. But in the case of Comstock 4* «^> vs. Lesienr, S. C, 2 L. C. J., p. 306, it was held, that a defendant, summoned to appear in vacation can demand security for costs on the first day of the nearest term, without giving notice within the first four days from the return of the writ. And so also, it is alleged, in a note in the Jurist, vol. 5, p. 26, it was decided by Mr. Justice Badglcy, in a case which is not reported, of Stirling vs. Dotv tf- «/., S. C. M., 17th Feb.. 1859. 5. But in the case of Tiers 4* fd. rs. Trigg il^-al., the Court returning to the ruling of Williams vs. Arthur ^-al., held that a motion for security of costs is too late when notice thereof is made after the fourth day from the date of appearance, but for the first day of the term following the return and appearance, 5 L. C. J., p. 25. But later still, Smith, J., affirmed the ruling in Comstock vs. Ledeur, in a case of Perry vs. Tlie St. Lawrence Grain Elevatitig and Floating Storage Company, S. C, 5 L. C. J., p. 252. 6. In counting the four days for asking for security for costs the appearance of appellant for ratification of title dates from the presentation of petition and from filing of deeds in Court. Ex parte Wond, S. C, L. R. p. 107. 7. The Court will order that security for costs be given within a certain delay,else the action will be dismissed with costs. Adams vs. Sutherland, S. C, 1 L. C. J.,p. 196. And security not being given, on motion the said case was so dismissed. Adcivts vs. Sutherland, 2 L. C. J., p. 109. Also Castongue vs. Masson jH)sition. Mcihoiici/ ^- id. rs. 'InwJcini and Gcddes cV (d., S. ('.,0 L. (\ K., j.. 72. 10. A foreign iiliuntiir w Iiu ouutest.s the ilccliiratifn eC h tiers-sahi will lie held to give sccnirily l'>r eosjs. .1// /// r t|[- t//. t'v. .S'w^/ <•/?n(l the limits of the i)ruvinee, i< bouinl to jiive security liir custs. Sa)tt ^' al. rs. Austin nvil Ynit/rj. i\'(d., f) L. (\ .1., p. ,')."i. 12. An epjuKsant, />'/^>/- tiling ;i contestation C'f tlu claim oriuuillier opposant living out nftlie province, may demand security k»r cests ])tii not nft(r. Bntxir'nni rs. Jionoci/t" and divers opposants, S. C. I L. C. .T., p. 1-IS. IJnt in tiie .Su- perior Court at tiuebec it ^vas held liitit where th',' pliintill'. who resides (>nt of thf pi'ovince, eoiilests an opposition, the oppesiuit is not eiitith tl, ur.der tin- il (ieo. TIT. cap. 7, s?c,2. [C. Ir^ts. L. C, c. S3, r-'eet. (iS.J to security for ct^sts. the' j)laintili' in such casii being in the position o( a (k f-Midaut rather liian of the party ju'usecuting, liriiihurii i.-,v MiDoit- nc/l i^' al. a»d Ikil/n. S. C, 10 L. ('. Jl., p. A\y2. And so also it was iield in a case of M>rr!Jf rs. Mr/fo/x'/rf J.- al. and lloss J^-(d., (5 L. C. J., p. 40. 13. A foreign p-laint ill' will he perniillod to give .sfcnrity for costs by depusit ui' a sum of money. Mfrfn tf- a/, rs. Lamle. S. C, 4 L. C. .1., ]>. 300. 14-. Although a i)lainiifriiving out of the province siu' in formtL patqicris, the defendant is mtitlcd to security tor costs. Gagnon vs. Woollci/, S. C, 10 L. C. R., p. 234-. 15. Where the security Ibr costs furnislied by u deposit in the P. C. appears to be insufKcient, owing to the great length of the transcript, the council will grant an order for the deposit of such other sum as is necessary to guarantee the respondent. Bosne/l ami Kilborn tj- al.., P. C, 7 L. C. J., p. 150 and 13 Moore's Hep., p. 4<76. : — Vide Costs. : — " Opposant. : — " Pleading and Practice. Seduction: — 1. An action cannot bo brought against the father of a minor son for seduction committed by his son. And a minor son cannot be sued e« declaration dc pater nite without the appointment of a curator, or some one by law authorized to represent him being joined in the action. IIislop rs. Eme- rick, S. C. L. R., p. 106. And the father of such minor son, cannot be sued as his tutor naturel. H'slnp vs. Enierick &• al., Q. a, 9 I.. C. R., J). il03. Also L. R., p. 106. 2. On the general issue as plea to an action for seduction, general irregularities of conduct on the part of the plaintiff may be proved, but if particular acts are to be proved they must l)c pleaded. Truax vs. Huntrr, S. C, L. R., p. 70. Seigniorial Arrears : — Vide Interest. Seigniorial Commissioners : — Vide Commissioner. Seigmorial Rights :— 1. The right of ban dite in this country carries i with it the right of preventing the erection of any jirist mill within the limits ol the seiyniury wherein such right exists, 19 • Vi \\ ;' ■■ 'Bi Ml »' ■■}* A-.\ * ■■ 290 SKI JSeiomokia I. Rights ; — iiiicl :il.s() that ol'oatising tlu> deriiolition of sitch mill, nutwith- sUmding' it l>e intended for grinding produce, not intended Ibr hoim^ I'tni, sumption, and not subject to the right of bana- hit. L'irne ,)• of. vs. Duf^ord, S. C, 1 L. C. R., p. 31. 2. And in thi- caNt- oi Monk m. Morris, S. C, 3 L. C. R,, |). 3, it wtiy lu'Id, that the right of hanoliU dc rnouUn exista thronghout seigniorinl Caij:u!:i. indi'iwndcjitly of uny cunveu- liuiiitl title. That liii' right of preventing the erection of tiili(M' mills wiihin tlic limits of a Si-ioniory, and of causing tliiiii to ho d»iii( lislicd when erected, is a component and tssenti!il |niit (ifthut riiilit. Tlial this rif^hl of /!«//«//?>« extendi* !is well t(i niill.s driven hy .>lt'ain as to other dLSoriptions of mills, iind th.-it i^raiii ground tl»r maniifiietnring ondcommor- cinl |iin |Hi,-,os tiills within tlic prohibition equally witli that groiini! Itiv the ccnsilaire. The seignior, ncglecjting to pro- t<>st ugiiiiist llie building of mills within his seigniory, does not ihfTt'by loose his right of btninlite. And the right of humUih: is ikI extiiigiiishecl by :i sheriii's sale. And iu thu ea.se oi' Lagan is. Ainh/,^, C.,4' L. C. R., p. 3Sl it was held that the lessee oC a banal mill may hiniseli bring an action ai^ainsl a ir//sif(iirc to recover from him the toll, (nwutures) npoii grain gronnd by the ccimtiiirc at a mil! without the .seigniory. And it is snfficient to prove that the ccnsitatre has liad a erop of grain, and that he ha.s carried grain to be gronnci elsew Inne, without rstnbli.shing that the grain so ground elsewhere i.s the grain he has gatliered upon hia 1h ud. And a. rr^.s/V./vVr residing in a .seigniory is presumed to be subject to the right of hatuiUte unless he estublishes the eonlrary. 3.' By tlie .statnle :20 \'ic., e. 104, a seignior has jio nghl to the exclnsive use of the water of u non-navigable river, and has no right to seek the demolition of a mill-dam in such qualitv". Paffgmcoi vs. Uiicanft dit Lamiirche, S. C, 11 L. C. R./p. 76. +. Acrnsiff/irr cannot demaiul the reduction of rents stipu- hited in a seignioral deed of concession at the rate of fuur pence ycr iir];ent, nor the rescisiDU, in part, of such deed of euncession. L(i..i^./nis rs. Tnuhl, IS. C.,3 L. C. \\., p. 47;"). 5. A seignior en iinot claim 1(hIs. ct icnles upon a deed of sale, if the purchaser, being sued hypothecarilv, has aban- doned the property purelnsed by him. The seignior cannot, in such a case, claim lads et ventcs either UjMjn the one or the other of the two .sales. Dc.'unner vs. Munn, S. C, 3 L. C. R. p. 1.50. 6. A woman separated as to proi)erty from her hu.sband, who purchases at sheriti 's sale an inimeiible acquired during her community with her husband, owes no mutation fine to the seignior. Potion vs. Frtirnicr, S. C.,3 L. C. R.,p. 4-76. 7. A joint stock company duly incorporated by statute, is not a main-nwrtc and tlie acquisions made by such company do not give rise to the right of indemnity in favour of the seignior. The Quebec Seminary vs. The Quebec Exchange, S. C, 3 L. C. R., p. 76. 8. There is nothing in the old law of France, nor in the law of Lower Canada, which prohibits seigniors from con- K E I to S E V 291 tly void or voidable, p. 36. ^iEKi^lOHIAL RuillTS :— coditi!; Iniuls in their seigniories subject to renten, and by the Ramo deed stipulating a prix de vente for the same land, and a c«nsitaire or purchaser a party to such contract, eunnot apply to thrant his uuconeedod lands. And the arrH o{ the I7lli of March, 17.'i2, merely enjoins the clearing of forest lands, forbidding the siile of sueh lands; but thes** Arrfits afford no reniearalion de biens, is suffi- ciently eflertpii by ii rcuuju'iatiou by tlu^ wilr to the cornmu- uityduly insinuated. Setteca' and Labe/le, S. C, 1 L. C .)., p. 273. 3. An action en sqiaration de hiens between parties married 1 and having tlieir domicile in the district of Three Rivers, ^, cannot be brought in the district of Montreal. Kennedy vs. BMard, S. C, 9 L. C. R., p. 3U, and 3 L. C. J., p, 284. ^ac vg /y 4. A judgment en sipiration de biens can be rendered in a ^ cause between parties married in Upper Canada, where there is no co7)imuHai(te and wboro their was no marriage settle- ment. Siccetapple vs. Guilt, 8. C. 13 L. C. R., p. 1(»7, and 7L. C. .T.,p. lOfi. r>. SeparatioH comruclncHe is not effected, by providing in a contract of marriage merely for exclusion of community ; and a wife under such circumstances, cannot ester en juge- nient, unassisted by her husband. Wilson vs. Pariscau mid Simard, S. C, 1 L. C. J., p. Ifit. 6. The ground on which a judgment en separatioti de biens was rendered cannot be attacked by op])ositiou d^n d\mnul- ler. Routh vs. Maguire and Maguire et al., S. C., 10 L. C. R., p. 206. 7. 'J he creditor of the husband is not entitled to contest the demand for a separation Jn behalf of the wife, and can intervene in such an action only for the preservation of his rights. Marchand and Lamiraitde, Q. B., 10 L. C. J., p. 375. 8. In an action against a married woman as separie de ^ biens, the production of notarial deeds in which the defendant takes the quality offemm^ iifparie de biens, is not suffioient 19« \ )l 292 SEP to S li R ;|-.. . < r- 11 . , ;rf l:|.. >i'- *i !*,,::{' 11: !:^ ?l;i:rtl Separation ue biknh : — evidence of such separation, if the scpnmtion be denied by the plea. Wheeler vs. Burkitt, S. C, II L. C. R., p. 118. " : — VirV/-« CoMMUNAUTfi. 41 ; — « Execution. <• : — " Faits kt Artici.ks. " : — " I'lkading anu 1'ractice. Separation dk corps et de biens: — 1. In an action en aejfaratwn de corps et de Incns, wlirre both parties are domiciliulcd in a township, the real estate acquired during the marriage by purchase, and lield in free and common soecagc, will, in the li(pndation of the matrimonial rites, be considered as forming part of the community. Magrcen vs Aulicrt, S. C, 2 L. C. J. 70. 3 JiBRVICE ies : aud if having charge of an offico belonging to the Company for the transaction of its business generally, und without limitation. McPherson et al. rs. St. Lawtence Inland Marine Insurance Cotnpany, S. C, 5 L. C. K , p. 403. But in the cose of C/irtpman vs. Clarke and the I 'nity Life Insurance Association^ S. C, 3 L. C. J., p. lo9, 11 was held, that s»>»vicc upon a foreign insurance company, at an agoncy or ofiice within the jurisdiction of the Court is a valid service upon such company, and sucij company on such service may be con- demned to pay a policy, though such [wlicy may have been eftected at another agency beyond the jurisdiction of the Court. 4. In an action for slander against three persons described as being all of the City of Monlrcil, but carrying on business as mercantile agents at Montreal, service at their office in tlie last named place is not sufficient unless it be personal. McDonald vs. Dunn et ai.,^.C., 12 L. C. II., p. 345. 5. Service on the agent of a tiers-saisi at his olfiee in Quebec, is not sufneieut, if it appear that the defendants had no domicile in Lower Canada, and no real or personal estate there, and that the cause of action arose in Upper Canada. Frothingham et al. vs. the lirockcille ami Ottaioa Railroad Cmnpany and DickinsoH et al., S. C, 9 L. C. R., p. ill-o, 6. Service of a writ of summons on a defendant under a sealed envelope, by a bailiff" who is ignorant of the contents is insuflicient. La Banqitc du Peuplc vs. Gugy, S. C. 6 L. C. R., p. 281. Reversed in il. B., 9 L. C. R., p. 484. 7. Service of n writ of summons and declaration can nut , legally be made by leaving copies thereof with a servant girl at a boarding h»Hise where defendant lived, inasmuch as by the law of this country, and namely by the Provincial Ordinance of 1785. 25 Cuo. Ill, *.-. 2, sec. 2, [C. Sis. L. C, caj). S3, sect. 44,] the writ of summons and declaration ought to be served on the defendant personally or left at Ins wrii t<» th»j defindant, or at licr domi- cile, to some person lor her, and the retnrn must stale lo whom speaking in tlu! terms of the Ordijianee of IH(»7. The Trust and Loan Componj oful Markay, .S. C, •'< L. C. .1,, [». 154. Reversed in appeal where it was held, that service of one writ and copy :it the di uiieile of the husband issnllicienl te bring both before tin; (Joiirt. The Trust, and IsD'Hi Cmupatiif and Makiiy, Q. H., !> J.. C. U.. p. it>5. 12. The service ot the oiiffinal of a writ of siimmon.s instead oftlut copy is ii siiliieient !(ssijjna(ion. I'Hitm rl id., vs. DeBiaujiu, S. C., f) L. C. J., p. 128. 13. The exhibition (>r tin iiifrimil pleading or pwper, at t.y»e time of service di :< c«jv. is not necessary. lihiis vs. Lampso?i, S. C, 12 L. C. 15., p'. 2:i. 14. The 26th rnle •>!' I'rnctiee ol the Clirenit Court, with respect to liiiures used in a return of service, i.s not a pcinr di vuUite. Lunuilhc and Cnrcr.au, <.^. K., IM 1.. C'. 1'.. p. S8. 15. In an action bronnbt in th(! S. V.. in Montreal, ngaimst two defcndnnf^, one residing in C^ucber-., the other in Mtmt- real, and served with prociiss at their respectivrs i ri of. , S. ('., G I,. C, R., p. 413. 16. A bailliff of the Superior Court lor Lower Canudn, .styling himself a bnillifl'of the ^>upcrior Court for thl^ Circuit of (Quebec, does not thereby vitiate hi.s return. M'-Ca/luv* vs. Pozer, 8. C, 1 L. C. R., p. 40. 17. The onrtificate of service of the writ oi" appeal, must sliow ji personal service eillior ii|)on tin- idlorney of the respondent, or upon the ve,sponupuis and Dujwis, (^ P.., 6 Ji. C. R., p. 429. 18. Where the ciai.se of action arose in Lower Canttda, n wni ad rcspaiidendum fpointed for the district of (Quebec," is correctly addressed, and it may be served in Upper Canada by any literate person. Morgan vs. Benjamin, S. C, 13 Ii. C. R., p. 235. 19. The clause of the Consolidated Statutes of L. C, cap. 83, sect. 64, to the effect that service of rules. notices, dec., may be made at the office of the Trothonotary or Clerk of the Court, does not apply to the service of absentees, called s K n t.. s i; s •29. « <« . ii U .__ It (( . (' ftERVITKfUS Servicb : — in by Iho (tm/i ttc, wlicrt- im iiiUH'.imnco is eiitiTcd for deftMidtuits. L'K-li' n\ rrs li;iv(> iilwuys been rt'ifjirilcil as pitbliu lu;j:liways an. I di pt iitlcncries of the pidtlic domain ; iuid flonU(l»!«' riv<.iN arc n'uardi'd in tlic .sunn- liulil. In IidIU illc puUlii; have w legal .srr\ ilUilo lor lliinfiMv: down loij;s> mr rufls,aud iln- prop'riclcrs ol'adjoininji' liaMk.>. camiol use ilio hcd-s of .sui'h rivers lo tlie d.trinieiit of.sncdi mi\ itndf. 2. A^ri^^lil of pasliirajie en'ahd hy a iletal ol donntii'ii is a. si'rvifudc ri'illi ; j'ud siioh servitude, t-realed li'di're flie lle^istry ' 'rdiaunee eauie inio (orce. M' cd net he r<'y;i.s- tered. And w li (pu si lor a porti(tn nC ilio hud itiicied wilh siudt .Sirfvil'ide, witliuni r>e. eiuniol In- repeated, unless the title iliscluso u spc eilje ujilii to lli.; exercise ofa perpetual servitude idlliutdiscnpiiou. i n.t'<>.ii. IS. i^umtul, S. C, I L. C. .1.. p. 14<. 4-. The action neiiatnirn will not lie, imtuiiliNiaiiuiii^i liiii- the realty in lUvor of wliieh llie st-rvie"-' ot u r(/,//v ,i, hui.' was created has been enlaraed, if it be iiol, made u> a pp. a* that such service lias, in consequence, become more onerous. Blais and Simoneau ct al.,il. B., ^ Ij. C. 11., p. 3j*i. 5. The right of using a private street even during lliirly years will not establish a riffht to enntiniie siudi ri"-hi in tin. absence of a title to that effect. Jnli)ist.tm ft oJ,. vs. Ai'-h^nn- bault, S. C., 12 L. C. R., p. I3H. ^~Yidc HVPOTHEQUE. " Recistratiov. " RiPAniAN Pmoprietor. 6k8SIONS : — A jnsitice out of iScssiiins cannot award reslifntion on an iudictmont of forcible entry or foroil'e detainer, (iuual befrin^. by the Grand Jury at the Gener il <)iiarti;r "stssi ais. Tie.; Court of General Quarter Sessions whore the iiidietiuent is found may award a writ of restitution, but it is entirely iii. ,"- the discretion of the Court to grant or rofufie such writ. Bo$well et al. xs. Lloyd^ S. C, 13 L. C. K., p. 6. « it m \\ ;.\ 206 s !•: 'J' !•• S II V. ^rtt-Okf • — Vide Compensation. f 1 a V 1 II u "I Sharkmoi.dkhs : — Shiinjholdtrs of railway coni|nnii's, iiioor|)orul«.'d iiIUt lli«^ |ii«Nsiii«f (if flic Riulway flimsrs ('onsoliiliiliuii Act, iirt- liiiMo til llu' iTi>ililt«rs lo mi iimmmt cqiiul to Ihn lunount iiii|)tii(l oil tlii'ir stock, niul in mi action to rccovor the smuo It is not necessary t«» ullc |)laiMli(J''s debt accrued and was dnt; whilst the shanks stooil in dcfondant's nariH: Coc/MoH vs. lieaitil,,/, S. ('.. *J L.C. .1.. p. OHIi. lidc Da MA (its. " liAlf.WAV CoMPA>Y. Sheiuuioi.ki: ; — V/dfi llvroTiir:(aE. SlIKKiii:— t. If an application he iiiiido to compel tie- Sir ii(i' to return a writ of fieri /(/(/as helore the day tixed for ^h^^ return of fho Avrit. the ('ourt will not gratit tlm apjtiicution il'tliere he »io evid<'iicc lo sin w that the Sherilfhas nefii: !ly lieen herifr proves that such mi/dici/ was solvent, or reputed to be so, to the extent of Mie pro]ierty seized at the time of his appoint- ment. Ii win and Jinstnn et a'., Q. B., 2 L. C. J., p. 171, and 7 \j. C 11., p. 43;i ; also, Lcerstin et at.. v.». Cunningham and Boston, Q. B., 2 Ij. C. J., p. 297. And though over 70 years of age he is liable par ccrjts. lb. And in the samo s II K 207 case, it Imviiig bfrri sent bnck to th(' S. C. (o tiikn ovi«I«M)c« on the issue raJNfd liy tlir ;iii.su'«'r of tho Shrriff, as t«) tho vnliKi (tfthf goDils which he hiul fuili ' to [• xltiro, the Court rrfiisril to !i|'|'Iy the cvich-iiff* liikiMi lis to lh«' value of iho g:i d hy 'lini e .d ordered to he (h;!ivercd , up to the saj'si. Invin nvd Hosto- et nl., '2 L. C. .f., p. 17L 6. W'liere the Slierid'hab seize t jj;oo(!s by a 'nisif rernndi- ratioH,\\\\\v\\ action isai;er\var(' eonipro, ised ii/ the parties, uni! the seizure (ptashed. tlie SJu-ritrdot not In.so his lion on the gsnds sei/ed fir fiis costs, f^i ' ,i''ft dit Ihifmis and nnsf(w,(i. 13.. jl Ti. C. H., p. 3<;7, 7. Under tin! oth clause ol':.< \c,t 1*2 Vic.,n. * r..', to make provision for llic repair of Ct)'. rt !■ ns(>s and .Tails at e» 'tiiin places in Lov.'er (.^aiimlii. und the Orihr of Couiicil of ''•'','< April, IH^O. the S'herill' h:ts n vii'ht to levy :\ tax of one ^cr crut. on all moneys passim.': throu<;h his hands, altliongh a tax ol one j^rr cmf. \v.< IterMi already paid on the .said inon(>ys, under the itii clause ofthi^ sanu' act, when paid in. Mo/kw et nl. vs. McAid> i/ nvd Jxisfiw rt ft^,S. C, 1 li. C. R., p. ^^\^. Dut in th'- case" of Stirihig H a', va. D"r/ing, S. C, 1 li. C. .T., p, 1(>I, it was held, that the Shenff receiving money from a deftMulant in .s;fisf:ic!ion of an execution, ia hound to piy tla^ s '..)i • to plaiiiiilf, niid .such money \n not liable to the Slu ritlV 'utMnnsNioii and to Court House lux. Also in lii/nti »t , ' •>•. I! < .:Js et td.. S. C, 1 L. C. J., p. 8r», it was lield that i peel ol" moneys p:ii» ;it un<'e ti jiay such moneys to tho plaintiffs and not refUM to \ho Court that he h.ld.s tho .same, sebject to the ordc.- ■} the Court, and thif^ even when fuich umncys are so paid to him after sei^nn* a: d on the day fixed for tho '•nle of tlu! property .seiz(»< thr (hMiiiuiil ol an (i|i|'OS»uf. to R'lnrn an rxcciition (fe irnis, on the ^nniini that Ins fei'«> juul disbursciiu'iits Ihi-rcon have not \ivvn paiii. Wihou vs. Ihmni r,n(l Ihn/r„, S. P.. 1 L. C. .1., p. i'Sl. 10. The Shriili' iMonot (U(hi<-f from tho proocciis of ili.> sale of iuuuovinihh ->, i1m- cost of tlu* dca] olsalo ami roj;id- tra'ion fhi-iicf; siicii i'har.o>sj- trar fur a cerlilioale giaiiUul !)y ihi- 'ntter under the ."UHh cap. (". tSts. L. C.si'ct. '2(', t'anuot he olili^t'd t(> ninnd .such excess, and the l{ti;i.'>trnr eanno' l»c eonipellcd to lih- hi.s hill hrlore the Court lor taxation. Mcssnn vs. Midlins n d //»»• Seiiiinnr// of Mo/iftrj^ .S. C. 6 I,. C. .1.. p. 107. 12. A rule i^n IJosfon, >heriir. alntie to pay over nioney.s received hy Uostoji and ("oilin as joint-sheriii", will It.' di.s- mis.sed. Lr/Hirir ra. Mif/irs, i<. (' . (> Ij. C 11., p. 1.7*2. 13. All atlaehnient will lie against two persons appointed by eoininis.sion IVoni the Crown to the ollieo efsherifl, for (Ho iioii-payment of moneys ]f'vi<'tl hy one of them, although the <>fher may not ha\e assnnied the duties of the ofliee, or aeted III any manner niuh r their eoinmis.sion. lifork and yrn'Mn, ^. Vx.'. p. yns. 14. A rule on the sheriif to prodiioe gooc's .s(i/.i>dMi*( Mn' said gi hedeelared cof/tniifinaNr jHir m/ps \i\]l'\\ ho pays their value. Ltcnaot) ef. a/, rs. Cu/ini/iiih(im and /iosfo?/. S. (*,, 7 L. C. \\., p. 'iTfi. 'J'his ease was revtrsed in .\ppeal, (In- Ci.iir' of •^Mieeir.s Beneh holding, that the simple demand in the rule, that th«* sherifi'in default of prodneing the goods, shonld he rmttraim pur corps until he did producf them, was suflieient, and was in conforniitv with tjic Ordiuanee of 1()()7. "J L. C..l..i>. '2<>7. li». The Sin rill i.s not liahh* fitr tin' eosls vt hringing tn a prisoner to jail iiinler uarrant of a lonnfy jnslit-e, who has eoiumilti'd such prisoner on a eriniinal ehiirge. Chax'pc^*^'' vs. Boston J\ C./l L. C. .I..7f). 1(1. Tlii^ Trinter *^l' the t^>nehee (Ja/.ttte has no action apaiusf the plaintitls in an action lor the price of Ihe adver- tisiineiitsof legal sales inserU'd in the ( Ia/.etle,heeanse therM is lio privity ol coi tiaol lielween the said piulies and phiin- tifls. — the sole reniedy <>f the printer is against the SheriU". Stevenson et lU. vs. Boston rt, oL, i>. C, 2 L. C. l\.,\\ 17. 17. The sale of real estate hy the Sheriff in a district other thnn that in which it is .sitnate, is iibs(dntoly null ; nnd all subsequent acts uf nuitatiou arc ulFuctcd by such nullity. S 11 K to S I (\ •2f»l* <> Shkrivf : — Phillips and i>uut:om, I). B.. H L. C. J., p. V?f>2. mikI 12 !.. ( . R., P- '^'^^' i\iHl a Mifiill's till*' ohliiiiicd l)y rniiiii will b< heUl to lie null mid void in a snil in wliich tlu" parties to lUe Iruud are not intni'slrd. Ih. 18. Tlu* ISlioriirs title lirantid Jo an adjudiintairr )i\\hs<:- qui-ntly to tlir sale, has a rotroai'tivi- t Ui'fl.aml roult is ii|kmi till! tidjifdici'tnitf the ilghl o( prtipniy mid all tlu" advaiitajio.s rosnlliiii; (r»)iii it, (Vdiii the day ol llMMuljitlii. ation. Lat''>- rinr. tind Jloudc, Q. ]\., I I h. ('. 11. , ji. U\). — I'idr AoJiinK^ATAiUK. — " ATTACIIMr.NT. — " Ai'uniNKV. — " CoNTH.MNri; I'rVK fours. — " Cos IS. — I. A vessel li>ad(ti and ready (ia Ma lUii he arn.^tiil li'i ;i iMVvl debt niieoiMicetid with the ship. I'tncnf vs. open j'o.sses.sit»n and (Malrol oi a \ essel. und nsiiig it fi)r his own heiielit and drawing the |ii<>(il>, ami not the ri'gister<'d o\\iiir,i.s linMr lir supplies I'm nislied t(> it. Morg,f,i vs. I'Wsyth ct oL, S.C.,!! L. (', .1., y. !»H,and !> I.. C. U.,p. 22f>. M. A hnilder's privilege npoii a ship of his own eoiislitK'luMi Mi htsi i( he di-livers her lo (he e\\ i.- r, and siHIi-rs ii< r know- ingly tu he sold at pn1)li(! nnetion to a third jici.son williont opposition. Jia/div/f/ vs. (iihh»i, S. |\.. p. 72. 4. In an action to aeeonnt, on :ui aj:re(^nu'n1 Uiadvanee moneys lor the bnildini; ol'a ship !<» h> reiinhnrsc d oni ot'the j)r anthori/.ed lo s(Mid lo his iVieiid.s in Liverpool or Louden, an--' for that purpose l\> appoint and sidoliln'e aUoriteys it at' nt.'s.) t«)^etlu!r with all e.spenses and I'liaiut'S, Mtteiidiaj' sihli sah. and also » conumssion ol' one pi rei-nt .it w.ks iuld : that saeU aeeonnt neetl not he kept in liie loini id a n>yf:p(r d-' tnii-llr : and tln> party inakiii}.', the advan. es.o<-t r ::iid nhev :■ Inseoju- iiiis.sion ol' fivi' per eeiil., is entitled •(< ehargi' tin ef>ninn--.sioii ot his attorneys or'aj^eiils in !;i.i^;.>i;niil, who lilic! <1 iiesiile ol" the ship nt loiu jier eenl., whic'.i is pro\< .1 lo he liii- asuul charge, and w hieli is payil'h en (he \. h. le priee of tlie sah tnado at er«'dit, allhoniiht pari \\a ppid within a Hw day- ul'ler llu' triuisaelion : ami a:.'>.' a liank eoninii."-;a)ii ol on« ronrth jirr fr///. eliar;.{ed hy the siih ai^i iit.and \\ hieh is n.snul lu Liii^laiui on similar transai'lion.s. Thai the saal party is not liahle hy reason ol the hiiiiKrii] ley ul his snhs^iliites tor nioniys due hy them; and tin' priiieipal is to hiar sneh lo.s.s. iiiasinneh as nnder the eireiiiiislanees, the Nidistilnlts were) hib own atlonieys ;ind agents, there heini> no evidence (hat tlie aiffiit was not |iisli(ialtle in a) pointiny; tlu' sah ajjients, Si/mrs ii/tl L(n7ijm>ii,^l. IL, "> L. <'. K., p. 17. " : — 1 ith: Dki.ivkhv. Hhippinc Act:— r not cerroborative of the evidence of the first. Tliat a cominnnii-ation by a merchant to his clerk, in his private o(l\c^, afleetiug the character of a third party, mado in the eoiuse of conversation occasioned by the absence from his duties of aiiotlier clerk oi^ the merchant, is a privileged eonjumnicatioti. Fetguson r.>'. (.lifmour, ^5. C, fi Tj. C. fl., p. !!•"). 4'. An action of damages wTIl lie against a person who has used language or made insinuations which have the efR-ct of injuring the churacler of the plaintifl'; and the plaintifT anay obtniri damngrs without proving that the imputations iuade ngainst him were false. Deiangcr and Papinenu, il !}., 6 L. ('. R., p. il.'). ;>. If no iiitt lit be laid in the declaration the meaning of words cannot be laoved in an action for slander. McCarthy vs. TMiiricr, S. C., L. 11., p. 36. (>. The statement of the owner of a ves.scl to the elTect Ihnl the pilot had been paid to run a vessel a.shore and des- troy her, is hiuhly slaii'lerous and injurious. Morissette vs. Jfx'luin, S. C, ^2 L. C. R., p. 333. 7. Where an attorney in the conduct of a suit, remark* uj>on the character of a witness in accordance with the .1'* htfii S I. A to S T A .H(r| Slander : — instructious of his client, his doiunce will be fuvonibly looked upon. Lavoie ami Gannon, Q. B., 10 L. C. 11., p. 185. 8. The allegution of fraud in a plea is not libellou.s, ami such allegations will not support un action for libel unles.s it is also also alleged that tlir; pleacomplainod of was merely used to cover the libellous matter, whifh was irrtlevant to the issue. Fttzsimmms vs. Byrne ^ wa., S. C, !i* I.. O It., p. 390. :— Vide Criminal Information. - " .lUROUS. - " Onus Pr(,'«a."'di. - ' I'LEAniNC AN.) PRACTlCr.. - " TriVILEGEI) t'OMMlJNlCATION. Slandkr and Assault: — Vulc L'LEAniNG and Vhav/uck. SoLICrrOR-CiKNKRAL I Vulc AtTOK.NKV (lENiKAL. '* " : — " Letters PATfcsi'. SonDARiTfi: — Viflc Dehtoks. " : — " KnASOiiES. Sots Ordre :~Vide OiwosiiioN. ♦ Sous Seinc; TniVK : — Vidj Agreemrnt. South Sea : — The 6 (ieo. l,c. IS, commonly called " The South Sea Unbb'e Acl," does not extend to the Atnorif.jin "('nlonies, Whife vs. The raufalus, S. K., p. 130. Special Replication: — Vide Pleadi.ng ani> Practice. Special Verdict : — Vide Verdict. Squater : — Vide Improvements. Starboard : — Probable derivation of this nautical term, p. 23.'>, note. SxATii Paper : — A state paper is a privileged communication which the Provincial Secretary may refuse to produce, d'ugy and Maguire, Q. B., 13 L. C. R., p. 33. Statute: — 1. An Act declared by the Legislature in general terms to be temporary has no more than a temporary eftect. Yet a temporary Act may repeal a permanent Statute, if the intention of the Legislature to effect such a repeal be manifest. Chasseur vs. Haniel, S. R., p. 310. 2. A typogra[)hical or clerical error in the English text of a Statute by the insertion of the word " these" instead of the word " third" cannot be corrected by a reference to the French text, where no such error occurs ; and the Court will not presume what meaning the Legislature intended, but will take the text as it finds it. Atchaml)a%dt vs. Roydit PicoUe and Pair tor, S. C, 2 L. C. R., p. 25. Reversed in Appeal. 3. 'I he repeal of a repealing statute has generally the effret of reviving the original statute. The London, p. 151, S. V. A. R. 4. A statute does not lo.se its force by desuetude or non- user. Tne Mary Caniphell, p. 22J, S. V. A. R. Statute Labor: — I. When a proprietor who has bi;en notified to do the work required of him by a proems -lerlnii is only delayed I- by ptrlicular circumsUmces, the .soMs-v'f/CT- is not justifiable in doing the work for him. DeBeauj'eu and Groulz fQ. B.^ ^(►j . C L. C. J., p. Ib6. 2. And an inspector cannot do such work himself. [1 " '! I lb. IMi'J. 8 T A U» S 1' E '"V ..4- r^TATvri: or Frauds : — Vide Evidbnck. " " : — *' Fa ITS KT Articles. J*!TA TLTK UP Limitations : — Vide Campbell A- "J- ««. Hutchinson, S. C, L. K., p. 81. Jf»r.vrtTES :— 37 Geo. Ill, c. 71— ftS Geo. Ill, c. 39—6 (^eo. IV, «'. 125 — '2 Will IV. c. Tl. — To rcgiiliito the practice and the fees ill the Vi Vie*c. 87.— None ot Her Majesty's subjects to hoist the 1 niu\ res iii a cruwdfd jmrt lik«' that of tjuebt'c, to be discminteiii«ncc(l. lb. Thoiigli [ir»:cct'diuj> only from a spirit ul'eaiifiT coiujielition, iind from niisoalciiliiiiou nitlier tlmii from any iitt('ui|tt tf» injinr thr coinpotiiiit' vevsrl. M. i. irrti'iniit'rs :ii'' to li< .'oiiNKlorccl in tlu- iiHvigiilitii: w itii ii tfiir wiinl. Thr yfiinant liiiiit «>r Vessels The E/izoh^tk, p. 3 U.S. V. A. U. r». F^very sic;inislii|) when iiii\ iguliiig •.my ii:irrt>w chitr ■ iit'l .slitill. v\ii.>{ itiieipinl speeil shall l)e pnrsiiiri«> the same course within the li)iiits of tlie port of Quebec, the sluwest boat if a-liead, shall draw on tlie left and alliiw the one a' the stern to [tnss on the starboard side. Vide l^v-law 'IViniu House Quebec, 12th October. lSf»r>, .S. V. A. W. 7. A steamer geiui.- up the St. Lawrence at niglit, on a voyage iioni tjiiebee Xa Abrntreal, S!iw the light of another steamer (•iiiiing down the river, distant about two miles ; and when at the disti'nce of rather more than half a mile took a diaifonal course acMss the river in order to gain the south ehannel. starboarding her h(4m. and then putting it hard to sturboard. 'rhestiam(>r coming down havinii |)orled her helm on seeing the other, a collision ensued. It was held that the vessels weri' meeting each other within the meaning of the Act regulating the navigation of the waters of Canada, (22 Vic. c. 19,) and tlie steamer going up the river wa.s solely to blame llir the collision in nothavinc ported her lielm. The James McKemie, V. A. C, 12 L. C. 11.7 p. 393. S^TEAM Navig.\tion Acr : — English Steam Navigation Act, (14 4 15 Vic. c. 79.) cited. The Inga, p. 339, S. V. A. R. Steam-Tui;s : — 1. Sailing vessel running foul of another coming 'p the St. Law ronce in tuw (if a sleam-tiig, condenined \n damages. :/'//(■ JSinmm, p. 308, S. V. A. R. A vessel in tow, with a heud wind and no sailis, and li^st to a steamer, is powerless to a very great extent ; and can only sheer to a certiiin tlistance on either side of tiie conistr m whieh she is towed, lb., p. 311. If the misconduct of those on board the tug be the sole cause of the collision, both the other vessels are exempt from responsibility, and the recourse of the injured vessel is against the tug. //>., p. 319. The tow is not responsible for an accident arising solely from the mistake or misconduct of the tug. Ih. 2. Sailing vessel condemned in damages and costs for putting her helm to starboard, and passing to the left a steam tow-boat, thereby causing collision with the vessel in tow ; the steamer and her tow coming down the channel nearly or exactly upon a line with the course of the sailing vessel. Tke Inga, p. 335, S. V. A. R. tl < I ! !^ I tl i W 304 S T E to SUB ■li ! I (i 'li I'i f» » :» : ''■ 1 1 Steam-Tugs :— 3. Liability of a stcain-tiig I -r eollisit)ii betwoon vessels, one of which was towed by tiiesk'aiuor. The John Counter, ji. 3*4., S. V. A. R. VVhcro Ihc accident urises from the liuilt of the tow, with- out any »;nur or luisniaiiageiiunt on tho \>»x\ of the tug, «.hc former alone is luiswcniblo. 7/>..ii. 348. Jf both be in luult, both vessels are liable to tlio injured ve8S(^], wliatcver may be their responsibility intir ae. Ih. SxEWARn : — Steward displaced and punished without cause, is not bound to serve as a co(d<, and nuiy recover his wages. Thf Scinili, p. 87, S. V. A.]\. St. M tc h k I. : — Vide D i x m i; s . StREKT : — l^/-^' MuMClPAf. CoUiNCII.S. Studknt : — Students in a public school are oxeujpt from t!i(^ capita- tion tax, and thi^ corpuraiion has power to extend exeniption.s to olhi r ciai>.-^i's of ilie citizens, but not to deprive .-itudeiits oi it. 'I'hat the Laval University is a public .school, antl as such entities its studt-nts to nil ine' imnuinilies and privileges granted to stiHlt;nts in pidilic schools. And a law-student at the University and also under inilentures to an Ad\ocato is a student at a public &choo!, \'l\ parte Bourdages, S. C. 11 L. C. ll.,p. 4.:)7. SuBPtUt.t soil tnmsiuisc a Vcnfant male rie en Ugitinie inaria,::c de E. //., Pic," it is siitlicient that the one of the children who is to taite the succession, be a cliild living at his deceas •, and that then the substitution should be open for the jirofit of that child, whether he had au elder brother deceased before him or not. McC'irthy ct al., and Hart, Q. B., 3 L. C. J., p. 2r, 3. A. bequeathed property to B., with substitution at B's death in favor of his eldest son, and his eldest sou died without issue, before B. himself Held that B.'s surviving son, though secwid in point of birth, was entitled to claim under the substitution as the eldest son. And a sale of the property in (luestion by B., and his deceased eldest son, was null and void i{Ho ad the claim of the surviving son ol B. under the substitution, it not being open until the death ofB. McCarthy and Hart, Q. B., 9 L. C. R., p. 23. 4. No opix)sition can be made to tlie sale of an immove- able substituted, xmtil the substitution be open. The Trust and Loan Company of Upper Canada vs. Vadehoncaur and Vadelx)nc(eur et al., S. C., 4 L. C. J., p. 358. Substitution of Attorney : — Vide Attorney. Sub-tenant : — A sub-tenant is not entitled to the benefit of the privi- lege referred to in the 162 article of the custom, unless pay- ments are made to his immediate lessor in good faith, before the execution of a writ oi' saisie-gageric at the suit of tlie ori- ginal lessor. And asub-tenant is not entitled to such jnivilege if he be a cessionnaire of the whole lease. Wilson vs. Pariseau, S. C, 6 L. C. R., p. 196. But in Ixcmpson vs. jSesbitt and Dinning et al., it was held, that according to the article 162 of the custom, the effects of sub-tenants, garnishing the premises, are liable to the proprietor for the amount of their rent, even although they should have paid the same in good faith to their immediate landlord. S. C, 13 L. C. R., p. 365. 20 ii' 1 )l )l li I, • (• \ 'J Iv ^ >l I- ,^ 306 SUB to S U R lir ,i.i 1 ■'' <■ i; Sub-tenant : — When there is a clause in a lease to the eflect that the tenant shall not sub-let without the proprietor's consent, such clause must be strictly carried out, and the sub-tenant Avill be held to be aware of such clause, and he cannot in consequence clnini that his effects, garnishing the premises leased, shall not be liable for rent. Ih. When a tenant sub-lets for less than he himself is bound to pay the tenant's eliects are liolde for tlie principal rent. Ih. SuccrssioN : — The renunciation by a male child to a future succession does not extend to partieuhxr bequets in a will. Frechette vs. Frechette, S. C, 6 L. C. J., p. 3'29. " : — Vide Action kn pautagk. « : — " W'lu. AND Succession. Sufficiency oi 'Jlestions : — Vidr .Tirt Trial. Summer : — Vide Season of Navigation. Sunday: — Vide Tuomissorv Note. Superior Court : — A .Tuilgo' ot the Superior Court has jurisdiction, and mny act sinuiltaneously for all the districts of Lower Canada. Talhot vs. Lunenu, S. C, 7 L. C. J., p. 66. Surety: — 1. The security given by a party for a debt not yet in existence, cannot be of any avail to a party subsequently making- a loan, unless it be made to appear that the loan was made ui»on the faith of such security, and that there was privity of contract between the parties. Derousselle vs. Baudct, S.C., 1 L. C. R., p. 4-1. 2. A surety is not liable fur the costs of a first judgmeul against the jirincipal debtor, if he have not been notified of the action. Nye vs. Isaacson, C. C, 6 L. C. J., p. 117. 3. The mere fact of concurrence of sureties, and the lo>..s of one of them, does not discharge the others, and the clause of subrogation, in a deed of obligation, is only enunciativi^ of the common law right. Redpath et al. vs. McDou^aU ct cd., S. C, 1 L. C. R., p. 354. 4. Where the dealing between a principal and his debtor is of such a nature, as to operate simply as a prolongation of time for the payment of the debt, if the surety is not pre- cluded by such dealing from suing the debtor for his indem- nity, he will not be diseharged ; but if such dealing between the principal and hiS debtor, amounts to a present, though hwi pro tempore, payment, as the surety cannot then sue the principal debtor, he is discharged from his guaranteesliip. BcUingJtam et al., and Freer, P. C, 1 Moore's Rep,, p. 333. Where, therelbre, a party became surety upon an agree- ment for securing certain advances, by future consignments of West India produce, and after such advances, but before any consignments, the party having contracted fo make the same, accepted bills to the amonnt of t)ie advances, it was held that inasmuch as such acceptances operated as a jyro tempore payment of the sums advanced under the agreement, the surety was discharged. Ih. 5. A bond conditional upon the due fulfilment of the duties of an officer of a Bank, is made void by the reduction of the salary stipulated in favor of such officer, in and by the deed containing such bond, and such reduction without the con- S U R to TAB 307 Surety :— sent of the sureties, has the eflect of a novation. Tlie City Bank vs. Brown et al., S. C, 2 L. C. R., p. 246. 6. A surety who, under a certain clause in a deed of com- position, has paid moneys by anticipation to one of tho creditors on account of instalments not due, cannot claim to be collocated on the proceeds of the defendant's goods, in preference to other creditors, parties to the deed of composi- tion. Whitnei/ et. al. vs. Craig, S. C, 7 L. C. R., p. 272. 7. The sureties on an appeal are not bound for the con- demnation money, when the appellant files a declaration to the efil'ct that the judgment appealed from, can be executed, although the appeal bond has been given in the usual way. Chaurette vs. Rajiin et al., atul Ra]nn rt al., and Lorunger, S. C, 4. L. C. .T., p. 293. 8. The suretitis on a bond in an ai teal from a judgment ordering contrainte 2^ar corps against I'l pellai'V, are not liable to the .successful respondent for mure than the costs of the appeal until the respondent has enforced the order for con- trainte agsiinst the defendant. Whitney vs. Brooks et a'., «. C, 5 L. C. J., p. 161. 9. On motion \ plaintitf will be allowed to substitute and file in a cause a notarial act of security with a now surety in place of the Dne proposed with the action, the first surety having desisted from his suretyship. Monjecm vs. Dnhxc, S. C, 12 L. C. R., p. 94. " : — Vide Fidejlsseur. « :_ « Half Pay. " : — " Married Women. Surrogates : — Validity given to the judicial acts of surrogates who execute the office of Judge in the Courts of Vice-Admiralty abroad, during vacancies in the offices of Judges of such Courts, whether occasioned by the death, or resignation, or other removals of the said Judges, (56 Geo. Ill, c. 82, passed 25th June, 1816.) Vide S. V. A. R. Surveyor : — A Surveyor's report, referring to a plan not of record in the cause, is bad, and will be set aside on motion. Adama vs. Gravel, S. C, 2 L. C. J., p. 203. Sword : — The sword of a military man is not liable to seizure, as being part of his necessary military equipment. Wade vs. Hussey and Hussey, S. C, 8 L. C. R., p. 511. t Table of Fees: — 1. Since the passing of the Act of the Imperial Parliament, 2 Will. IV, c. 51, the establishment of a table of fees for the Vice-Admiralty Court, is exclusively in the Privy Council. The John and Mary, p. 64, S. V. A. R. 2. From 1764 to 17S0, there are no records in the registry, or documents showing what was done in that interval of time, in relation to fees. The London, p. 148, S. V. A. R. The Governor and Lei>islative Council of the old province of Quebec, in 1780, passed a temporary ordinance (20 Geo. Ill, c. 3,) " for the regulation and establishment of fees," including the fees to be taken in the Vice-Admiralty Court, which ordinance was continued by several successive tem- porarv ordinances, the last of which expired on the 30tli of April, 1790. lb. 20* i t' 308 TAB to T A .\ r* " :■ Vm. U ■■ 7'ablr of Fees : — The records ol" the Court contain no information of llu' fees taken by the ofliccrs in the interval between the expira- tion of this continued ordinance and tlie table of fees established under the authority of the Judge in 1809. Ih. ; and which was generally acted upon by him down to the (wssing of the 2 Will. IV., c. 51, and the promulgation of the table of fees of the 27th June, 1832. Jb. From this period down to the Order in Council of the 20tli of November, 183f>, this table of fees was acted upon. lb. ITjKtn the last mentioned order for rescinding it being received, the deputy of the then Judge of the Court, who discharged the duties of the ofHce, ad interim, during the alisence of the Judge, from the 30th of August, 1833, to the 21st of iSeptembcr, 183<>, allowed certain liees to the officers of the Court us a quantum meruit, without reference to any ]tHrticnlar tarilfor table of fees. Jh. Very soon afler entering on the discharge of the duties o( Judge of the Court, to which the present incumbent was a[iiH»inted on the 21sl of September, 18i36, he held ,\\\\\\. since the passing of 2 Will. IV., c. 51, (23rd June, 1839,) it was not competent to the Court to award a quantum meruit to Us olficers, the table of fees having been revoked by the Order of Council of the 20lh of November, 1835, without any other being made, lb., p. 149. The jiower given by the 2 Will. IV., c. 51, to His Majesty in Council, from time to time, " to alter " tables of fees established under the authority of that Act, and to make new ones, contains in it the {lower of rescinding an estab- lished table without substituting another in the ])luce of it. Jb. Whatever might liave been tlie efi'ect of the Order in Council of the 20th of November, 1835, in reviving a table of fees which had been before legally established, it could not have the effect of giving validity to a table of fees like that of 1809, which at no time had legal existence, lb. 3. New table of fees for the officers and practitioners of the Court, established by an Order of Her Majesty in Council, dated at Buckingham Palace, the 2d of March, 1848, Ih. p. 155. Opinion of the Attorney and Solicitor General of England, afterwards Lord Campbell and Lord Cranworth, as to the au- thority of the Judge of the Vice-Admiralty Court at Quebec, to establish a table "f fees. Note to the case of the Jotm an-l Mary, Ih. p. 69. Tacite Reconduction : — Where a lease of moveables is continued by tannic reconduction, the lessor can terminate the lease whenever he pleases, and can at any time revendicate the moveable so leased. Laurrnt et cd. vs. Lainlle, S. C, 5 L. C. J., p. 333. Tariff : — Vide Fees. Taxes : — 1. Munici|xil and other taxes arc the charges of the enjoy- ment and possession of an immoveable property, and the holder whom it is sought to expel, cannot claim to be re- imbursed his payments thereof. Filion vs. DeBeaujeii, S. C, 5 L. C. J., p. 128. TAX to TIE .109 Taxks : — 2. Tlie Corporation of the City of l^ueboc have ii right to raise the capitation tax to os. a head. Exp, Bourdages, S. C, 11 L. C. R., p. 457. " : — r?rffi Sheriff. " : — " Student. Tax for Court House: — Vide Sheriff. Tax for Reports: — Vide Advocates. Tax for Water : — Vide Water. Tavern-Keepers: — Under the Act respecting Tavern-keepers anJ the sale of intoxicating li(|uors, C. S. L. C, cup, 6, <' keeping a house of pnblic entertainment" is no offence unless quali- fied. Ej parte Mo^r^, S. C, 7 L. C. R., p. 107. Tavern Licenses : — The Mayor and Councillors of the City of Qiu-hec, under the 14- and 15 Vic, c. 100, sees. 5 and 6, have a dis- cretionary pewer as to the confirming or refusing to contirm certificates for tav<*rn licenses, and in the exercise of this discretion, they are not to be controlled by the .Sujierior Court or the Judges of the the Court in vncatifui. Ex parte Laid into Court. McFarlane and Rmj &• at., Q. B., 7L. C.R.,p. 77. 5. The judgment against a tiers-saisi curries with it a right of execution, and conliMS rights on the seizing creditor which cannot be intrrArred with, by the other creditors of the defendant. Masann vs. Choall and TIte Merchant Assur- ance Companif and Biron, S. C, fi L. C. 11., p. 1C9. And also Chapman vs. CltiiLe and T/ie IJnilij Life Insurance As- sociation, S. C, 3 L. C. J., p. 159. , 6. The coshier, or other otlicer of u bank, receiving money as the attorney of auotlicr party, acts individually, and does not constitute the bank such nitorney. So that a saisie-arref. in the hands of the bank will nut attach moneys so paid. Lynch vs. McLennan tj* ai. and T/ie Hank of Ujyper Canada, S. C, 3 L. C. J., pp. 84 and lU, and 9 L. C. R., p. 2.'i7. But a bank, tirrs-saisi, will be ordered to deposit in the hands of the prothonotary bonds or debentures or certain munici- palities placed by defendants in such bank. Perry vs. Milne and The Ontario Bunk, T, S., and Milne, Comtg., 6 L. C. .1., p. 301. 7. And a tiers-saisi with whom defendant had deposited notes ^y will lje ordered to deliver them into the hands of the protono- tary. McKay rs. Dcmrr$ and Fautcux, S. C, 1 1 L. C. R., p. 28+. 8. The suisie-arret is a mode of citing parties to appear, and a tiers-saisi whose declaration is contested becomes a defendant in the cause, bound to answer the contestation of his declaration, and liable to bo condemned, alone or jointly, as the debt is due by him solely or jointly and severally with others. And the allegation of acts of dol and fraud conjmon to the three tiers saisis and to the defendant, com- mitted by concert ;in«l collusion between them, and carried out to the prejudice of the plaintifl', is sufHcient, if proved, to warrant a joint ami several judgment against them. McFarlane anil Whitcford, Q. B., 7 L. C. R., p. 318. 9. A declaration of a tiers-saisi cannot be contested after eight days from the making thereof. Waraer vs. Blancliard and the Mayor, tjt-. of the City of Montreal, S. C, 2 L. C. J., p. 73. But in a case oi Bnineau and Cftarlebois, Q. B., 3 L. C. J., p. 56, it was held, that by the rule of practice the con- testation of the declaration of a tiers-saisi cannot be contested after the delay of eight days from its being made, unless with special permission of the Court first obtained. But in order to obtain such permission sufficient cause must be T I K to T I M 311 Tiiks-Saisi : — shewn wliy tuntrstalinu was not filoil in the di-lay. Lytuh IS. MrLennnii j^- <{/. (lud Thr lidnk nf l^pfirr Cumuld, S. C., 3. L. C. .1.. |.. Hi. 10. Hill in tilt' Cironit Court tlu f is no limitation ol oijjlit •lays within which it is noiM'ssary to contest tht* tlt'claratioii ol' a firrs-misi, Lmrlt is. Fn,it(iinr unit Ai nton, C. C, 5 L« . ('. J., p. 'JH4.. 11. The n of scvoral liris-siiisin oCa like charac- ter may h(' attaclicd hy one cuntcstalion, whcrt; they are alh'ii;i'd to he sittidiiiicnirnl liahlc, a tiiin-saisi hciiiy iiiori- a parly than u witness in \\w cnu^e. Muftirlanentitl White- /'o,l',ti. »., I r.. ('. .1., p. 19. \'i, A ftns-Miisi reli rriiiu' in his evidence to certain docii- '•iiiaciitary evichMice, will ho held to |iri)dnce the same at his own cost, on motion to that ellect. Fnrsifl/i rs. Tlic ( '"fii'i/ii liiijif/sf Mf.ssiii/ rt/y Sncii/i/ and l,<"rtning \ a',, S. C',. •J L. C..l.,l.. IK7. l.'i. \'ir1 a] accc|ilaiice hy the sccr«'lary in one ?a.sp and the accoiuitani in aimlher, nl a dralt on a chartered railway company, i.s .Mnliicieiit to prevent the iittachtn<'nt hy snisic' itrr f. ol the lUMncy covered hy such (halt. /\i/ri/i kY a/, vs. lltiliiiisoH null 'I'lf Monltcid mid ('/'iiiii/i/i(iH JiudriMid C'lnn- jKiini, S. (;., 'i I,. ('. .1., p. -JO'}. II. Salary not due at liim; of s»'r\ ice da writ or.s7 f'//f7 cannot ho sei/i'd. Midn vs. Adiieitltir iind Ln. Jiiui'fUC lilt I*nij)/c, 5>. C , I L. C. .1., p. '270, also Ulnnljii-f: ci. 1 1, vs. D/esser tjc al., and ICmns, T. S„ i L. C. .1., p. 120. IT), (ienarally the dehtor has nn interest to contest the inisic-arrit. Iai Bant/uc du Peuple ts. Doncfinni, rS. (.'., I fj. C. II., p. 107. Vide index, Saisie-Arret, No. 2t». Mnt a delendant has no interest in contesting the decla- ration of a tiors-sinsi, on the pronnd that the poods of sucU tiets-snisi are under tiei/urc lor the amount admitted hy him in liiis declaration to be due to the defendant, uiid that sucli a contestation wi;l he ilisniissed on demurrer tiled hy tin; tiets-mm himself. I'onsUdde ^' id. is. Gilhi it \ uL (nid Simpson kyal., .S. C, 4 L. C. .1.. p. iJif*. Timber : — Advances on goods under u wriltoJi agreement are niado hy A., a merchant in Upper Canada, to rnahle M., a con- tractor for lumber, to cut and convey to th«' <^>iiehec market a (juantily ot timber ujion the following ccndiiions : that so soon as desirerl it should be considered as helongini;' to aii'i be delivered to A., that A. should have the sidling of the timhor and account to B lor any balance that might renmi:i after a deduction of his disbursements ami advances, inchu)- ing 10 |)cr cent \\\\o\i the latter with a commission of 2^ jirr ceiU. U|>oii the sale, and it was held, that alter a delivery to A., lieiore the timber reaches Quebec without trard or coUu- si(»n with B., the timber could not be attached at the suit of li.'s creditors for the payment of his debts ; hut the ha la nee, if any, after a sale hy A., can alone he arrested in his haufls under the process ot the Court. Vartkoujj^htiet is. Mait/nnif, S. R.| p. 357. : — Vide Delivery. - " License. • " Sheriff. i ■ !>l M M U J I 312 T I 'I' to T U A j rri ii TiTME :~Vi(h DiXMKs. TiTRE NouvEi. :— 1. To a soigni<.ri;il titre mnnrf, it is nut no.><\vv\ry Hint llie seii^iiioi- .slioiil,! be ;i party. Cttthhnt vs. Trilin- 3 Rev. de Leg., j.. CU. ' ' 2. A purolmser of a roircrnn^iituve cannot \w\\\^ his attion ■j)Our fa ire passer titir Jioiirel l)t'U)rt' juilling the (JellMKlaiit rtr. (Irmcure, ami in the event of his nt»t diting so, he w i!l 1. 1 condemned to pay eosts. (.itieiwrd vs. Gifat/, S. ('., t f,. ('. K., p. '27. 3. A reservation contained in a titre nouvrl or rernmnii;- sancc noinr//r, between seignior and (y/^s/^a/Vr, is null and void, if the sanu* he not inserted in tiie (irst tith' of con. •.•.<,- sion. Triiii^e i\- a/, is. (>'ni//h>//, i> C, U L. C. \l., p. :'». Toi.i.-B'iMXiE : — .Mail carriers coiiveyinii passenwers and titliM-ts ;ieriiN< a foll-briilge. erected under the (> d'eo. |\'. e. -Jf*. :ire not, exempted bv thai ^talnie from tne payment of lolls. /•';///,-»• ii, id .Tours, iS. C. + L. C. 11., \^. 1-27. ' AIm. L. 11.. p. Wl. Toi.i.-i)i;iii(iE : — Viile llv-ltoAi). '• : — /' Fkruv. Tradition : — I. Absoliile tradition is not necessary to iii^iir.' to lli» purchaser, the property in- had aciiuired as against :iii«'t|j.>r pnrchaser. li'iin-n ?•<. .4//'V.'2 Ucv.de fiCg-.p. I()'2. And tli ' leignod or syudjulicul tradition may siijiply ihc aolii.i! tradition to enable a pmvliaser to maintain an frc/, it washeM, that in the case of sales of waste lands, tradition is neces- sary to convey the right of property ; aiiil when the pnroli i ser by private sale id" such laiuls, does not take possession r ; and tjie new pnrchaser iK'comes seized of snch lands to the exidnsion of the pur- chaser, who has neplectt'«l to lake jiossession. And in Stuart vs. Boimwn, i^.C, 1 L. C. R., p. 3(i9, it was hehl, that there mnst be an actual delivery in oiiler to acijnire a valid title to real estate. And the pnrchaser of an imniovctdde ]>roperty winj has neiiln'r Jiud sei/in nor |)oss«'ssion, cannot iiiaiiitain the petitory action. Ihnchu vs. Fifzfxirk iS-af.,^. C. 2 Ii. C. K., p. 7. JJut a more recent case wtis decided in the opposite .sense. Venfon r.roiieity to which ho has n title. Lnranger vs. lioudreau ^- (il ., C^. B., !> L. C. U., p. 383. Vidr tilso Iltnmm! vs. Shaw, i>. C, 4 Tj. C. .1., ji. 1. Al>o a case ol" Jlait vs. McKvil, S. C, 4- L. C . J., p. S, lor tlio eliect of the sale hy decret. 3. No delivery is necessary to pass the property of ij^oods sold at u jiulioial sale. Tocite remnductioH in relation to moveahles only arises when the lessor is a dealer and makos a business ol letting moveables. Parlies remainini; in po.s- .session of moveables after the expiry of a lease, will ').• deemed to hold them as owners, llr/l vs. Ri^Hcy et ol. nrd Mi/zie, S. C, 3 L. C. .1.. p. V:'2. i. The sale of moveable etlects, by a notarial deed. wlinMi declares that tradition ol the wlmle to^k place !)y the dcli- V(>ry ofa chair mid a table, iloes not vest the properly iii tiic veiKh'e ; and a creditor of the vendor, jtostorior to the sale*, may cause the sei/nre and sale of the same etlects, iipnn tlu? vendee. UnmuiHanvd Seed, <>. H.. 3 L. C. R.. p. 4+6. r>. The assiirnmeiit o{' a lease by a bankrupt to a creditor, to whom he sells all his nu>veabies, is a siifli 'ieiit delivery of such goods, as !ti:;ainst i-roditors or nther thiiil parties, and precludes the m'eessity i>{' drp/o-cnfut or other species of Iralitinn rvrllv. Cummin ix \ a' . vs. Monn aiul Svnth 4" rt/., S. ("., 2 L. C. .1.. p. l}>r>. Reversed in Appeal. 10 F,. C. R., p. 1'2'2. See also \VitJ,n!! vs. V»i>)):: .^• uL owl Mhhn". iV«/., t ''O >et aside lor rrrt^ir, ilr iJr'ttly Nvhere there is no fraud or dec»'it. In a 1r;insaclion e.ieh party i^ives np his rijrlit> in jrder to avoid doubtful lit!i>a'i')ii. Ti-itiiit: \af. rs. l.aniHrc. S. ('.. I,. R., p. 87. Ami in the V. C. it was held: 1st. That lU the ease ol'a eonlraet known to the l''rench law :is ;i txni.Mvtinn, aiul called in Kniflis)i ;i compromise, to deleriiiinc nniieubly a!l disputes wliieh ri;iy have arisen between the parties, theconsiilcration which e;ieli parly receives is the Nciilenient nftlie disjiiite, not tlie siicritii-e ofa riyht, bill ilie ;i!i;iiMlriii;u'nt oi'ii elaiin. T' iS- a' .' i. L'tva'/ir, V. C, 1 ! I-. <". 1!.. p. VV:. Anil it is no objertion 'o tiie validity of ^ueh a t-oiiipi".)- niise, that the ri_:;h! was really in one ol llie partiisoiily. /'». And in the case submitted, neither fraud, i/d/, nor w aiu, of yood fiitli by misre|treseniation or otlierwise, could be iiiipided to (llhaiuller, one ol' the parties to tlu' compromise, nor had intimidation been used to the other party. 3. The (piestion id error in the niniij deli'miinnnt ol llie cor.i- proinise is to he decided exidiisively by liie I'rench law as applicable to transactions. Ih. And the rule in such matter is that if the error relie !■: Transaction : — entering into the agreement, its existence is reganlocl as a condition implied, though not expressed ; and then, if the liict fail, the foundation of the agreement fails. Ih. That when the coini>runusc is general as to all matters in difference between the parties, then the riile of law i.« different, because it is not proved that the compromise would not have taken place, although the parties had knouii that one of the points was not doubtful. Jb. And the rules of the civil law upon this subject, havL* been adopted not only in I-'rancc but. also in Eiif;land and Scotland. Ih. Also 7 L. C. J., p, 8f>. Transkek: — The transfer of shares in railway companies cannot be jtroved by verbal testimony . Cockburu vs. Dcaudry, S. C, 2 L. C. .1., p. 2S3. '* : — r/r/c Transport. Transmission of Record: — Vide Security. Transport : — 1. An assignee can -ring liis action, without notilyiiij; the deed of assignment tu the debtor, and the service oi jirocess in such case is c(]ual to signiUcation. Martin vi>. COte,S.C., 1 L. C. R., |). 23!). iAndsoalsoit was held where the suit was begun with a c(i])i<(S. Quinn vs. Auhemn S. C, ■^ L. C. R., p. 378. And an opposition ujin de lonsn- vcr, may be filed by an assignee who has not signifieil his t>anspoit. Larnotlte ^' al. vs. Fontaine, (.},. R., 7 L. C. R., 1'. 49, and 1 L. C. .)., p. 101.- Hut the Court of C^. R. macb- the distinction between a conservatory process sui-b as an opposition and an action. And in the case of Pare taal Dcrousscl'e, the S. C. in Quebec condemned a cessionnairc wb<» had brought his action without siguitication ol the transport to pay costs, the (Kfendant havinsr tendered the money into Court, S. C, 6 L. C. R., p. 4-1I. 2. \\"here defendant had been verbally notilied of an assignment of moneys due by him to plaintiff, and hail paid lo the assirnees moneys umler such transfer, an action for tb<» lialance l)rought by the original creditor was dismissoit.^lasii. ami AhcirriUc i\- uL, Q. B., 10 L. C. 11.. |i. .{77. TniMTY House: — 1. Where there has been a jwevinns judumeiit ol the Trinity Tluuse U|Mjn the same cause of ilaniaue, llic Cuiir'. has no juiisdiciion in eases of pilotnge. 'I'hi I'IkiIic. n. .")J), S. V. A. H. 2. liy tlie by-laws and regd'atimis of llie Trinity llense of the 28tli .hine, 180.T, all ships or \es>-els, in ihuk nights, at anchor in the stream opposite the tciwii of (^iielKc. were re<]uired to show a light on the bow -sprit end on the ileod tide, and at the mizzen peak or ensign stiill'on the ebl. itde. The .Van/ Carnphdl, p. 222, .^. V. A. 11. 3. By-laws of Trinity House not abrogiileil or re|ie;iled by desuetude or noii-ustr. lb., p. 22:i. 4. What is a dark night in the pniview ol' the Trinity House regnlations. Thr. Dahlia, p. 2i2, S. \'. A. R. The regnlations of the Trinity llonse re([niie u strict eon- strnction in favour of their application. ///. 5. By-law of 28th .Inne, ISO:'), repealed by by-law ol' I'Jth April, iS.'iO, and all ships or Vessels at anchor in an\ part of the river St. Lawrence, between Green Island and the western limits of the port of (Quebec, during the night, are required to have a distmct light in the fore-rigging twenty feet above the deck. Tkc Mary Cami)bell, p. 225, in note, S. V. A. R. a 316 T R I to T U T m 1 ' ll ' fv 1 ;. s i 1 i H 1 ' f Trinity House :— 6. Duty and authority of harbour master, and consequences ofcontraveniu": his directions respecting the berths of vessels. The Neiv York Packet, p. 325, S. V. A. R. 7. Trinity House by-law or regulation of the 12th April, 1850, as to a steamer meeting a sailing vessel going free, and ihere is danger uf collision. The Jnga, p. 339, S. V. A. R. 8. In appeals from the decisions of the Trinity House, the api)c]lant is not bound to give notice of the security he in- tends to oiier under the 12 Vic, c. 114'. Laprise vs. Arm- strong, S. C, 10 L. C. R., p. 434. *' . — Vide Beachks. Troibi.k : — A purchaser of real estate who has accepted a transfer of the price, cannot refuse to pay such price on the ground that he has been sued to give up such land, or until he is judicially dispossessed. Liuot>i/)€ vs. Fletcher, Q. B., 1 1 L. C. R., p. 38. -Vide Ratikication of Title. - " Franc ET (JuiTTE. - " Dki.aissement. Tun: Hii.i, : — A true bill for arson of premises insured being found, la not a cause for the suspen.sion of the action of the accused on his policy of insurance on the premises in question. Magiiire vs. The Liverjwol and London Fire and Life In- sitranc' Company, S. G., 7 L. C. 11.. p. 343. Tri stees :--Vidr Corporation. :— '• Wii.i,. TuTEi.i.K : — Vidr Action en nnsTnuTiON de Tltelle. Tjtok : — 1. 1). was appointed tutor to the minor children of tiu' sun (lecuasocl, the mother al.so beiufj dead ; subsequently the maternal giundlathor was appointed tutor by a jiuiae ui another district. Held that the appointment of the second tutor was invalid ; the first apppoiiilment being still in force, and I hat the (.'ourl sitting in Montreal cannot revise tJK' appuintnieni of a tutor in the district of Three Rivers. That the appointment of a tutor dates from the ovia de parents and not from the homologation by the jiuige. Ex parte Dunn and Beo/tdrf, S. C, L. R., p. 14. llevrrsed in appeal, where it was held, that the tutorship dotiv: is con- ferred by the Judge, and not by the advice of the relations, which is only a mode of enquiry to aid the judge "i the exercise of this attriijute, A ttde/lc is not d.c farU) null, by reason of the grandfather not having been called to attend the meetiiiii- of relations, and the said tutelle ought not to b» set aside on that account, if the interests of tlie minors be not afllvtud by such omission. That the tutelle must be conferred by the judge of the last domicile of the father, which continues to be that of the children ; and in the pre- sent instance the father had continued hij> domicile in the district of Montreal, although he had lately resided iu another, and luid died abroad. In the event of two tutelies being conferred in two distinct jurisdictions, the Court called to adjudicate upon the one conferred in its jurisdiction may and is boimd to pronounce upon the validity of the oth(-r, if it be called in question. Bratnlct and Dunn,' Q. B., 5 L. C R.,p. 344. * By error cnlleil in the report BtauHet and Dorion, TUT 'Ml Tutor : — A tutellc will not be set aside, on petition of the uiotlier, if it appear that she, from her habits and i^haructer is unlit to be tutor, and if it appear that the tutor appointee! is ;i lit person altliough a stranger. Mitchelf 4' Jfrf/i"ti 4- o/. s, (;., 3 L. C. J., p. 111. 3. So long as a first tutorship exists, a scfond cannot lake place, and acts made by a second arc null. And an invi-n- tory made without calling in the first tutor is null. And if a subroge tutor who has appeared at an inventory, is still a minor, the inventory will l)e null. ]f the bailill wlu) has estimated the chiiltils mentioned in the inventory was not sworn, the inventory will be mill. And the person who makes inneeiiriiei<'.s, litl.>.e variations and omissions in an inventory, is guilty of fnuul, and the inventory is null. And all triuisaeiions between a tutor and the minors, who have snbse([iii'iitly beeome of u<^v. founded njion such ineorreet and Inuubilent iiiveiiioiy -ue null dc pliino ; as are all such Irunsaetions where ho liiithiu! inventory lias been made, and where no vi>neber> li;tvi' been rendered. And the aclion rccisoiir in vueh a e j.s net prescribed by ten years. When there is an absence of re- gistratiftn, the civil status of a person ciin be proved hy the sayings of his parents and witnesses. ;]/*;/: vs. Blorro)/, S. C, 5 L. C. R., p. 433. But this judgment being :i;ipealetl from, it was held, in the (}. B., that in the case siibniilteil there was no authentic instrument ascertaining the period of the respondent's birth ; that on the 21st of August, IS30, the respondent declared hinself of full age. and it was in- cumbent on him to establish the fact of his alleged minority by precise and undoubted proof, which he had (iiiie.l to do ; and he had likewise failed in relation to the same tact, with respect to William Andrew Motz, and Catherine .Motz, of whom he was the tutor, and that never having been the tutor of resj)ondent, he was not, under the circumstances, held to render an account to three children of the late Motz ; and that therefore the want of a reddition dc conipte was iOt a means which the respondent coidd legally invoke 10 set aside the transactions which the respondent and his brother had entered into with one Carrier, and that the said respondent, and his said brother, being reputed of full age when the transactions had taken place, the same could be legally made as well for themselves as for their sister deceased, a minor. That the action en nuUiti brought by the respondent was prescribed by the period of ten years since the passing of the deeds complained of. That it had not been proved that the inventory of the 31st August 1830, was fraudulent, and that the errors and omissions alleged against it could only give rise to a demand for its alteration and rectification, and that therefore the respondent had no right to bring suit praying it shouUl be declared null and void and concluding c» j9c^tf the stock need not be joined. The Bank of Montreal vs. Sitnpson t^- al., Q. IJ., 10 L. C. R., y. 225, also 5 L. C. J., }). Itif). This judgment was confirmed on appeal to the P. C, 6 L. C. .)., p. 1, and 1 1 L. C. R., p. 377. fi. An opposition to the sale of real estate by a tutor o.fl hoc, authorized to act fur minors, is maintainable without registration of such actc dr liitrlle, and the 24th section of the Registry (Ordinance (4 Vic, c. 30,) docs not apply to such oppositions. Chnninard vs. Dcnirrs, S. C, 5 L. C. R., p. 4-01. And also in the case i»f Morland vs. Da/ion a»d Sauve 4- vx.y S. C, 5 L. C. .!., p. 154-. : — Vide Action en uEnmno.N ve comfte. : — " Legacy. : — ** Minors. TvTon to a substitution: — A tutor to a substitution under a will, cannot bring an action en dechdance d^nsnfruit. Gauthiei' vs. Boitdrcau S)- al., S. C, 3 L. C. J., p. 54'. Union-Jack : — None of Ilcr Majesty's subjects to hoist in their vessels the Union-lack, or any pendants, iVrc., usually worn in Her Majesty's ships, tuid prohibited to be worn by proclamation of 1st .lanuary, 1801, under a penalty not exceeding JGIOO, (8 and 9 Vict., c. S7,) S. V. A. R. Jurisdiction of the High Court of Admiralty, and of the Vice-Admiralty Courts in such cases, lb. Uniting Cases: — Vide Motion. Usufruct : — 1. There is no action to oblige a usn fruitier to keep pro- perty in repair or to pay damages. McCUnnis vs. Choqvct, S. C, L. R., p. 89 ; 5 L. C. J., p. 99. 2. The building of a house upon real estate subject to a usufruct does not change the nature of the pro)>erty so as to put an end to the usul'ruct. Little crid Diganard, C^. B., 12 L. C. R., p. 178. 3. The transfer ol' a right of usufruct of real estate for seven years, vests in the assignee only the right of exercising the usufruct, and will not support an opposition to the saleot the usufruct upon an execution against the assignor. Simp- son ^- al. vs. Dclisle and Dorian, H. C, 9 L. C. R., p. r>9. : — Vide Accroissement. : — " Tutor to a substitution. (i usu 319 joct to jso as g. B., Usufructuary: — Tito usufructuary cnnonly recover from the proprie- tor the costs of the j^rosscs re2>aratiofis and those necessary for the enjoyment of the property subject to the usufruct. And he can only claim the useful improvements in so far as the immoveable derives value from the same. But the gtm/te repuralions arc due whether they exist ut the openini? of the substitution or not, proviiled tliey have nut ceased to exist by the fault or nei^ligence ol' the iisufiiictunry. The proprietor is not liable lor ornamental repairs. LofonUnne vs. Si^zoi-, S. C, 11 L. C. Tl.,p. 388. Usury : — 1. A constituted or life-rent cannot be considered us usurious whatever lUJiy be the ralf chnriicd. AToise vs. Lntntvi'r.«\ S. C, 7 L. C..I., p. I'JS. Nor will a conunission on lutreaiitile transuetions in addition t»i interest on niant'V lent, l>i' luok'-d upon as usurious, unless it be exorbitant and only a cloak lor usury. Pdloch and Brmllmnf, \\ C, 8 Mocre'.s llep., p. 'J.? ; also 3 L. C. K., p. 171. !2. .Maratinie interest ut the rate of 25 jnr cc/ittoii on a b(»ttoniry bond at (Quebec, is not exliorbitant, [C. iSt. C. c;'|i. 5S.] White vs. The Dmhilm, .S. U. p. 130. 3. The Act IG Vic. c. 80, has cut off ul! remedies against usury e.stab!islied by 17 Ceo. Ill,, c. 3. Moaid in excess of six per cent, interest, in the discounting of various notes renewed from lime to time, and of which those sued uti form a part, can ijc recovered back by having the said excess of six })er cent, interest, in tho discounting of various notes renewed from time to time,and of which those sued on form a part^ can be recovered back by having the said excess de- ducted from the notes so sued on. Nije vs. Mala, Q. B., 2 L. C. J., p. 43. But again in the case oi Malo vs. Wurtefe, S. C, 9 L. C. B., p. 3'37, Smith, .T., said that even if the ruling of the Court of Queeiry Bench in the ]>revious '.'use were to be maintained, the defendant must establish the precise ex- cess retained over the legal interest on the note in suit, and it must be shewn that it is the defendant's and not other parties to the note, who paid the discount. But in Mo'son vs. Davfd, S. C, 4 L. C..T., j). 302, it was held that a notarial obligation for a loan executed during the period that the 16 Vic. c. 80, was in force, is subject to reduction in capital and interest, as regards any excess over and above the amount actually loaned. 5. And in the case of Bcnudry and ProiUx, Q. B., 10 L. C. 11., p. 236, on an obligation, the defendant pleaded that he had given the plaintill'two promissory notes for £60 each in deduction ol' the amount due, and had paid them, and also another note for £60, which was still in the plaintiff's hands. The plaintiff answered that the amount of the first notes had been received and that the two last notes were given on an agreement that the defendant should pay 12 per ! J :^'p!i' M m fi 320 U S IJ to V E R UsuKY : — cent, interest on the obligation. The defendunt exiiminod u\\ fails ctarticles admitted his undertaking to {my 12 per cent, interest, stating that he had been forced >j make it by reason of his incppacity to pay the capital at the time it became due, it was held, that the amount of the second note nuist be dg- dncted from tl)c amount of tlie principal and interest at f» per cent., and the third note did not operate as u uovulioii and must be iriven back to defendant. - Vide Commission. - '* EvmENCE. - ** Intkrest. - " Pleadin(; and Tractk e. - '♦ PaoMissoav Note. I'V ! ; .1 ; I ' r I i i t 1 1 , It . Vacant Estate: — T7, it was held, that the vendee of real estate who has obtained judgment against his vendor in an action quanta minori% cannot bring an action to have such judgment declared binding on the ccssionwiirc of the vendor. But in the Q. IJ., it was held, reversing the judgment of the S. C, that such action might be maintained. Ryan and Idler, Q. ii., 1 L. C. J., p. 257. 3. A vendee of real estate can oppose the exception ol quanto minoris to i\\ccessionHaire,G\en when he has accepted signification of transfer and promised to pay the purchase money. Masson ^ al. vs. Corbeille, S. C, 2 L. C. J., p. 14.0. " : — Vide Action quanto minoris. Venditioni Exponas: — Vide Opposition akin d'annuller. Vendors: — Vide Garanite. Vendor and Vendee: — Vide Ratification op Title. '* " : — " Saisib-Arr^t. Ventilation: — Vide Hypotheque. " : — " Ratification. Verbal Lease: — F/(/c Lease. Verdu T : — 1. A verdict will be null, if the issue has not been joined. Wurtele vs. Arcand, 3 Rev. de Leg., p. 242. 2. A special verdict ought to be the finding of liicts, by the jury, from which the Court is to pronounce its judgment on the law, and the verdict ought not to leave facts to the Court to draw an inference, such as whether negligence has been established or not, — negligence being a question of fact and not of law. Tolnn et al, and Murison, P. C, 5 Moore's Rep., p. 110. V K R to V T C 321 Verdict : — 3. Where iletl'iuluiit pleads to iiii action of dainaj^t's s|H!ciaI nets orimiiiomlity uii tliu pari of pliiiutiir, as justiliratiun ui' their refusal to carry out with liiiu a ctrlaiu aj^rci-nieit to admit him as a partner into their lirni, in deliniii^' the li.jts to the jury, tpustions shouM he put in re.spect to such immoral acts as material to thi' dflrnce. also as to the ;ill('!;e»l immoral and irrej^ular ehn meter of the plaintill'. Li/m ni ct iU. and J/iisginson, Q. li., Id L. C. 1'., p. 39'2. 4. The verdict ol' a special jury is had, and will l^- set aside, if in an action of slander the (piestion to bi- deter- mined l)y the jury was—" Wore the words spoken hy the defendant"? And if the verdict was — "These wortis or words to the same cllect were made use of hy the thlcndant condemning the i)laiutiir"' : hecause such verdict is va<;uc and uncertain. Fergusuti is. Gilnumr, S. C, "t L. C. 11., p. f)7. But a verdict rcuidered i)y a jury in a civil case, in terms which in grammatical sense are amhij^uous, n);iy ho interpreted hy the Court so as to give it elfect, and tlu^ Court may look into the record to as^'ertnin what inlerprciatiou to put on such terms. The Qice/>cc lidtik vs. Ma.i/nun, S. C, 11 L. C. R., |). 97. In appeal it was held that the verdict of a jury against law and evidence, is [irnpi'rly set aside hy a judgment non obstante vcrcdic'n. Fciguson and (.Ulinonr, Q. B., 1 L. C. .l.,p. 131. 5. A verdict of a jury cannot he set aside in appeal, Avhen no motion has been made in the Court helow either (or a new trial, in arrest of judgment or for judgnxMit nnn nhstante veredicto. Shaw et al. and McilJeham, Q. B., 3 L. C. J., p. 5. 6. A verdict will he set aside on examination ol' the written evidence filed, if it appear that the jury has presumed a release of one of the parties on such written evidence and that there be, in tlie opinion fjthe Court, nothing to justify such verdict. Clark et al. vs. Murphy et al., S. C, 11 L. C. R., p. 105. 7. A verdict for less than forty shillings sterling, will only carry costs to a similar amount, and the basis of calculation must be at the rate of 24'S. and 4d. currency per pound sterling. Leduc and Bitsseaic, Q. B., 1 L. C. J., p. 191. Verification of Writing : — Writings admitted to bo genuine will be examined by the Court in order to verify the genuiness of a signature on a plea of forgery. McCarlhii and Jicd(Jt, r. C, 12 Moore's Rep., p. 47. Also S L. C. R., p. 369. Vide Appendix. Vessel: — Unde/ the 6 Wm. TV, cap. '28, the owner of a vessel at the time of the complaint, altiiough not its owner at the time the service was rendered, is responsible for the payment of such service. Exp. Warner, Fct. (or Writ of Cert., H. C, 5 L. C. J., p. 120. Vice-Admiral : — By letters, dated the UHh oi Mareh, 17()4, General .lames Murray, then Captain General auJ (ioveiiior in Chief in and over the province of (.Quebec, u ms upptiiiled Vice- Admiral, Commissary and Deputy ui the ollice of Vice- Admiralty in the said province of 'Quebec and territories therein depending, and in the mariiime parts of the same 21 ii ' 322 VIC I ■5' ' I n. I Vice-Admiral:— uiul Iherolo adjoining, with jiowor to tnke cogni/aiico oCtintl procPfid ill any mutter, cause <»r thing, ncconlinp^ ti) the rights, stutntos, laws, orclinuiiees, niul cirloins oltserved in tiie Ilii;h Conn of Adniiriilty in Kngland. ]>. 370, S. V. A. R. Hy this C(iiiiniissii)M His Majesty intro(hu'f(l into this iiro- vince all the laws dCtiu' Kniilisli ('onrt of Ailniinilty in lien «>ftht' l-'rcnch laws ami CMstonis hy wliii'li maritime oanst^s were (lecitlcd in the time of I lie I'reneh i,MVernnn'nf. (Sec llcport prepared hy Fr;nu'is iVTaseres, l'!si|iiire, His AhijestyN Alturney (leneral ol' the provinee <((' •inehee, liy order i«( (iny Carlcton, lvs(|iiiie, th<' (iovernor of the Provinef, delivered in to the said (iov(>iiiir on the '27fli td l''td)niary, 17(5!). .Mr. Mascres was nll'-iMTi'ds (,'iirsitt»r 15aroii ol the Court of ICx(diei|ner in Miiuland.) Fiist of the several Commissions in eonliiiiiation i>l the nhove dtiwn to the present time. The powers in all iden- tieal. jt. ;iJH), Ih. Vice-Admikai.tv C'ouut: — 1. Tlie lirst estahlishment of the Vice- Admiralty Court in Canada took place immediately after the cession oftlu! country to the Crown of (ireat Britain, and. as early as l?!)-!-, a commission, ])earing date the 2-llii of Aiigiisl of tlial year, was issued by Ceneral Murray, appoint iny; .Tames Potts Judge of the Court, which commission was superseded hy another issued under the (Jrcat Seal of the High Court of Admiralty of England of the 28th of April, 17fi8 ; and the oHice has been continued hy a succession of commissions iltiwn to this time. The Lomlon, p. 14-7, S. V. A. II. 2. By 2 Will. IV., c. 51, s. G, doubts are removed as to the jurisdiction of the Vice-Admiralty Courts in the |)ossessions abroad, with resjiect to seamen's wages, pilotage, bottomry, damage to a sliip by collision, contempt or breach of regula- tions, and instructions relating to His Majesty's service at sea, salvage, and droits of Admiralty, p. 4, lb. In all cases where a ship or ves.'^ei, or the master thereof, shall come within the local limits of any Vice-Admiralty Court, it shall he lawful for any person to commence proeeeil- ings in any of the suits hereinbefore mentioned in such \'ioe Admiralty Court. Ih. Notwithstanding the cause of action may have arisen out of the local limits of such Court, and to carry on the same in the same manner as if the cause of action had been within the said limits. //;. The Court of Vice-Admiralty in the colonies has a concur- rent jurisdiction with the Courts of Record there in the case of forfeitures and penalties incurred by the l)reach of any Act of the Imperial Varliament relating to the trade and revenues of the British possessions abroad. Vide 'J'he Cus- toms Consolidation Act, IS.'iS, 17 laint to a Justice of the Peace, under the 5 and 6 Will. IV., c. 19, s. 15. TJie Agnes p. 58, S. V. A. 11. 4. No suit or proceeding for the recovery of wages, under the sum of fifty pounds, shall be instituted by or on behalf of any seaman or apiirentice in any Court of Admiralty or Vice-Admiralty, or in the Court of Session in Scotland, or in any Superior Court of Record in Her Majesty's dominions, unless the owner of the ship is adjudged bankrupt or declared insolvent, or unless the ship is under arrest or is sold by the authority of such Court as aforesaid, or unless any Justices acting under the authority of this Act refer the case to be adjudged by such Court, or unless neither the owner nor master is or resides within twenty miles of the place where the seaman or apprentice is discharged or put ashore, (17 and 18 Vict., c. 104, s. 189,) p. 358, S. V. A. R. Summary tribunal for the trial of seamen's suits for the recovery of their wages, for any amount not exceeding fifty pounds, before any two Justices of the Peace acting in or near to the place at which the service has terminated. (i6.,s. 188.) 5. It is a good defence to a suit for wages by a seaman, that he could neither steer, furl nor reef. The Venus, p. 92, S. V. A. R. 6. Discharge and wages demanded on the ground that the vessel was not properly supplied with provisions on the voyage to Quebec, whereby seamen's health had been impaired, and they were unable to return. The circum- stances of the case examined, and the master dismissed from the suit, the seamen returning to their duty. The Recovery, p. 128, S. V. A. R. 7. Imprisonment of a seaman by a stranger for assault, does not entitle him to recover wages during the voyage, and before its determination. The General Hewitt,)^. 186, S. V. A. R. 8. The detention of a vessel during the winter by strand- ing in the River St. Lawrence, on her voyage to Quebec, where she arrived in the succeeding spring, does not defeat the claim of the seamen to wages during the winter. The Factor, p. 183, S. V. A. R. Also, Rev. de L6g. p. 358. % 1 \\ W A G 327 Wages p. 92, 9. Seamen going into liospital for a siniill hurt not. received in the perfonnanoe i>l' his duty, not I'litith'd to wages after leaving the ship. The Captain Ross, p. 216, S. V. A. R. 10. In cases arising out of tlic abrupt torniination of tho navigation of the f?t. Lawrence by ice, and a succession of storms in tlie end of November, seamen shijijied in England on a voyage to Qiuboc and back, to a port of disehariie in the United Kingdom, entitleil to have provision made for their subsistence during the winter, or tlu'ir Iransportation to an o])en sea-port on tlu' Atlantic, with tlie payment of wages ui) to tlieir arrival at sucii port. The Jane, p. 'Jf)t), S, V. A. R. The master is not at liljerty to discharge the crc-w in a foreign port witlioul their cons^'Ut; and if he do, the mari- time law gives the seamen entire wages for the voyage, with the expenses of return. Ih. Circumstances as a scnu-iiuufi-dgium, will vest in him ail authority to do so, upon proper conditions, ashy pii'viding and paying for iht.ir relnrn passage, and tlndr wages uj) to the time of their arrival al home. Ih. It is lor the Court to considor m iiat would be most just and reasonable, as, whether the wages an' to be continued till the arrival of the seamen in England, or to the nearest open commercial port, say Ikiston, or until the oi'oniug of the navigation ol' the St. Lawrence. 2b. Under the peculiar circumstances of this case, wages decreed, including the expense of board and lodging, until the open ng of the navigition of the St. Lawrence. Jh. 11. Three of the promoters shijjped on a voyaie from ]\Jilfcrd to Quebec and back to London, the ei_ht. remaining promoters shipped at Queb, c for the return voyage, and all had sigi.ed articles accordingly. The ship came in ballast to Quebec, and after taking in a cargo sailed liom 'Quebec on her return voyage ; and was wrecked in tin River St. Lawrence, and aba. doned by the m ;ster as a total loss. Held — 1. That the seamen who shipped at !\lilford were entitled to wages for services ou the outwarii voyage from Milforl to Quebec, and one half the period that the vessel remained at Quebec, notwithstanding that the outward voyage was made in ballast ; 2. That the seamen who shipped at Quebec having abandoned, were not entitled to claim wages; 3. In cases of wreck, the claim of llie seamen upon the parts saved, is a claim for salvage, an»l the tpt intuni regulated by the amount which would have been i\uQ for wages. Tke Isahelkiy p. 281, S. V. A. W 12. " The Mercliant Ship|.ing Act, 18.H." (17 and IS Vic, c. 104, s. 1 S3,) which came into operation on the 1st May, 18.5.5, and by which wages are no longer to be dopendentou the earning of freight, lb., in note, p. 288. 13. A promise to pay wages to a mariner in advance, ou condition that he proceed to sea in a ship, is an ;,greemjnt to pay so much absolutely upon the performance of the con- dition, whether the ship and cargo he afterwards lost on the voyage or not. Mullen vs. JrJ'cnj, 1 Rev. de Leg., p. 3G2. i' i! m 328 Wages : — WAG 'i.,:SJ3 u I' it'i'r ■?! . t-: ■ ;r ift «■:-: ^ mn '-h W'lvf Ij i .f >.^ 1 itijL^ 14-. The Court here will entertain suits for wages for foreign seamen against the master of their vessel lying here, and will notice the lex loci to ascertain whether there is a legal and subsisting contract to prevent the mariner from enforcing payment of what is earned. Carroll vs. Ballard^ S. C, 12 L. C. R., p. 247. 15. In actions for wages by foreign seamen against the master of vessel, a foreign ship, evidence of the master, as to validity of the ship's articles, will be admitted. Patez et al. vs. Klein, C. C, 13 L. C. R., p. 433. 16. In a voyage such as mentioned in ship's articles, Russian seamen are bound to remain by the vessel until discharged at port of final destination. Ih. 17. Where there are no ship's articles signed by a sea- man, the seaman may recover the amount of his wages for the time ho has served on board the ship; but the Court will not compel him to jtroceed to sea again with the ship to finish the voyage. The Lady Scaton, 3 Rev. de Leg., p. 420. 18. Under the provisions of the Merchant Shipping Act of 1854, a seaman who has contracted and signed articles for a voyage to British North America and back to a final ])ort of discharge in the United Kingdom, is not entitled to recover for wages here, unless he be discharged with such sanction as is required by the Act. The Haidee, V. A. C, 10 L. C. R., p. 101. Not even on the ground of apprehen- sion of danger to life in consequence of the unseaworthiness of the vessel. The Pilot— Collins, V. A. C, 8 L. C. R., J). 99. 19. When a seaman shipped for a voyage " from Shields to Barcelona, thence to any other port or ports in the Mediter- ranean, Black Sea, Sea of Azof, or any port or ports on the coast of Africa, West Indies, United States or British North America, from thence to a port of final discharge in the United Kingdom or continent of Europe, the voyage to terminate in the United Kingdom, and not to exceed ;" and the ship went from Shields to Barcelona, and thence to Quebec to load for a final port of discharge in England, it was held, — that no right of action accrued to such seaman for wages in Quebec, and that the Court had no jurisdic- tion in such action under the provisions of the 17 and 18 Vic, c. 104, sec. 190,— the voyage according to the contract not terminating at Quebec ; and it is not necessary to insert the probable duration of the voyage in the mariner's con- tract. The British Tar — Charlcson, V. A.C.,8L.C. R., p. 272. 20. When a seaman shipped for " a voyage from London to Sunderland, thence to Rio Janeiro and any ports in North or South America, West Indies, Cape of Good Hope, Indian or China Seas, Australasia and back to a final port of discharge in the United Kingdom or continent of Europe, ])otween the Elbe and Brest, the voyage not to exceed twelve months ;" and the ship went from London to Sunder- land, thence to Rio Janeiro, thence to the Cape of Good Hope, thence to St. Helena and the Island of Ascension, and WAG 329 Wages : — thence to Quebec, it was lield, — that the articles were bad, as being vague and uncertain ; that the voyage actually performed by the vessel in proceeding from the Cape of Good Hope across the Atlantic to the Island of Ascension ; whence, instead of returning to a final port of discharge in the United Kingdom or continent of Europe, between the Elbe and Brest, she recrossed the Atlantic and returned to the continent of America, was not a prosecution of the voyage described in the articles, and amounted, in fr^ct, to a deviation imder the Merchant Shipping Act of 1854, sec. 190. The Prince Edivard— Diaper, V. A. C, 8 L. C. R., p. 293. 21. The description in the shipping articles as being one to North and South America, is too indefinite to answer the leading purposes for which the words were framed, under the words " nature of the voyage" in the Merchant Shipping Act of 1854. The Marathon— Horst, V. A. C, 10 L. C. E., p. 356. The description of the voyage in the shipping articles as being one to the United States, is suflicient, and the more general terms following, are to be construed as subordinate to the principal voyage in the preceding terms, and restricted to a reasonable distance from the United States, under the terms, *' nature of the voyage," in the Merchant Shipping Act of 1854. The EUcrs(ey — Vickermnn, V. A. C, 10 L. C. 11., p. 359. 22. An agreement entered into by the master of a vessel with his crew, subsequent to the execution of the mariner's contract, to discharge and pay them their wages at a port other than and previous to the ships arrival at her final port of discharge, is not binding upon him. The Winscales — Innrs. The Police Court, Quebec, 8 L. C. R., p. 3.50. But when the articles of agreement are expressed thus. — *'The .several persons whose names are hereto subscribed, hereby agree to serve on board the said ship, in the several capaci- ties expressed against their respective names on a voyage from the port of Liverpool to Constantinople, thence if re- quired, to any ports or places in the Mediterranean and Black Seas, or wherever freight may offer, with liberty to call at a port for orders, and until her return to a final port of discharge in the United Kingdom, or for a term not to ex- ceed twelve months," are entitled to and can sue for their wages in (Quebec, and can:.ot be compelled to return in the ship to ii final port of discharge in the United Kingdom. The Varuna, V. A. C, 5 L. C. R., p. 312. 23. Under the Merchant Shipping Act, of 18.54, a seaman cannot institute proceedings for the recovery of his wages in the Superior Court, though process begin by capias. Smith rs. Wright, 6 L. C. R., p. 460. 24. The privilege of a clerk in a mercantile house for wages, is confined to the wages due. Earl et al vs. Casey, S. C. 4 L. R. 174. 25. In an action for wages as a sailor on board a barge, the Inspectf r and Superintendent of Police for the city of Montreal, has the same power as two Justices of the Peace. And as seamen have a lien and a right in rem, for their wages, I «l \\\ 330 W A G to \V A R i' '■■ I '^f"! « Wages ; — the reg:istercd owner is liable for wages accrued up to the date of his purchase. The delect in the summons to set forth that the barge was duly registered in the Province of Canada, is cured by the conviction which statctl the barge to be duly registered in LoAVcr Canada. Ex jairte Ww- soever, will not make the sureties liable for debts c()ntracte<1 by the said M. C. by endorsing or procuring the discount ol" negotiable paper in his own name for the benefit of ii firm of which he became a member sul)seijuent to the execution of the deed of warranty, although such pa))er luid been dis- counted at his request, and placed to his individutil credit at, the bank. A defendant may be u witness for his co-defend- ants, if he be not interested, or il'liis interest be removed by a discharge. But this case having gone up to the V. C. on appeal, it was held, that the motive in a deed ol warranty, which uives rise to a general eniiagement, will not limit the responsibility of the surety, or cut down the eliect of the guarantee itself. 5 L. C. .]., r)7. 2. The Ibllowing words on the face of a policy of insur- ance imply an ex))ress warranty: "The steamer Malukoti now lying in Tate's dock, Montreal, and intended to navi- gate the river .St. Lawrence and liUkes from Hamilton to Quebec, principally as a freight boat, and to be laid up for the winter at a place approved by the company, who will not be liable for exj)losions by steam or gunpowder." And if the steamer do not navigate but is burned in dock in the summer, it will be considered that the terms of the warranty have not been complied with, and if a verdict condemning the company for the loss be rendered, the Court will on motion order the judgment to be entered up for the defendant ?ion obstante veredicto. Gnmt vs. The xEtna Insurance Coni- jninij, Q. R., 5 L C. .1., p. 285, iind 11 L. C. R., p. 330, and for case, S. C, Ih., p. 128. But this case having been taken to the r. C. it was there held, that where words in a policy of insurance import an agreement that a vessel shall navigate, they must be considered as a warmnty and the engagement not having been performed the insurers arc discharged, whether material or not. But whore, as in this case, an in- tention only is expressed it does not amount to a Avarranty. P. C, 6 L.'C. J., p. 224-, and 12 L. C. 11., p. 3*' , 3. A memorandum for the sale of coals, dia\' u in the same terms as a previous nionioruadum also for tiie sale of coals, gives rise to no implied warranty that the coals shall be of the same quality as those delivered under the former memorandum. Fnj vs. Tlie Richelieu Company, (J. B., 9 L. C, R., p. 406. 4. The garantie de faits et 2^>'omesses stipulated in a deed of transport, carries with it the garantie that the debt existed at and before the date of the deed of tratisjtort. Donegani vs. Choquelte ij- al., 2 Rev. de Leg., p. 301. 5. A clause oi garantie, in a deed of exchange, confers no hypothique, unless a specific sum of money be stipulated as the amount of such garantie. Ex parte Casavant and Le- mieux, opposant, S. C., 2 L. C. J., p. 139. 6. In case of the sale of an immoveable property by seve- ral vendors, who in one and the same deed merely sell their 1' i[ , 1 i 1 t 1 4 .i r: I 11 • ■ ji . I 1 !■ ■ i y f s ; ■ I 332 WAR to WAT I'- (,V .1 Warranty : — respective shares therein, which are defined, without any stipulation of solidarite, altliough fur one price for the whole Sroperty, ^'rt^rtn/ic is divisible among the several co-vendors. lartcau vs. Tetreau, S. C, i L. C. J., p. 245. 7. In an action en garantie (Veviction against joint sureties, the judgment must express that the defendants are jointly and severally condemned to guarantee the plaintiff. Dcmers and Piirant ^ al., Q. B., 5 L. C. R., p. 36. 8. A security resulting from a lettre de garantie, for a limited amount, and for a time to be determined by its sub- sequent revocation, is not extinguished by the payment of an amount equivalent to the amount secured, paid by the debtor without imputation, if the security be snlidairr. Masson tj* al. vs. Desmarteau ^ ai., S. C, 3 L. C. J., p. 186. But otherwise if the amount be limited, and if it do not appear that the caution meant to continue giving his secu- rity for a length of time, or beyond the occasion. Leblanc vs. Rousselle, C. C, 3 L. C. J., p. 191. 9. A letter of guarantee given to one of the members of a commercial firm, gives a right of action to the firm, if it appears that it was the intention of the parties, that the firm should give the credit, the member named not then carrying on a separate business to which such letter could apply. Rolland Sf al. vs. lytranger, S. C, 3 L. C. J., p. 249. 10. The security is not bound to pay the costs of dis- cussion, lb. « m i vi 1 1 1 Mm ¥'fU k ■ I ,i : — Vide Auctioneer. " : — " Insurance. Water : — The corporation of the city of Qael)ec cannot make any by-law imposing a water-tax upon any of the wards in the city, until it shall be ready to furnish to the inhabitants of such ward, a continuous and abundant supply of pure and wholesome water. Ex parte Dalliniore, S. C., 11 L. C. R., p. 436. But in Failes and The Mayor, tf-c, of Quebec, it was held, that the corporation of the city of Quebec is entitled to recover from the citizens a quantum meruit, on the value of the water delivered, in case the supply of water is not suffi- ciently continued or abundant to subject them to the pay- me^t of the full rate. Q. B., 13 L. C. R., p. 335. Water course : — 1. The original proch-verbal of a cours d^eau must be homologated and not a copy. Ex parte Vincent, S. C, 6 L. C. R., p. 487. 2. The owner of a mill-site is entitled to a judgment affirming his right to the enjoyment of the use of the water of a stream in its natural course, which has been diverted by a neighbour for the purpose of turning a mill upon his own land, although, at the time of the action, the party com- plaining had no mill, and did not require the use of the water. Bussitre vs. Blais, S. C, 7 L. C. R., p. 245. : — Vide Banality. : — " Corporation of Montreal. Water power : — When two proprietors upon the same stream pos- sess water powers of which one cannot be improved witnout the destruction of the other, the first occupant must have « « 1 f '\\ 12- 1 WAT to W I L 333 Water powEn : — the preference, and is entitled to cnnse the dnm of the other to be demolished. DunkerUy vs. McCnrt/n/, S. (-'., 8 L. C. U., j). 132. Wav : — The iinderttiking of n pnrty in n deed of partition, to siillcr n rond-way upon his portion of land, and l<» make and niaca- dnmize the same to the extcMit of tliirty liM^t in width, is a servitude et charge rerlle, lor the preservutiun of whii'h the party in whose favor it is stipulated, has a right to make an opposition ajin tie charge upon a judicial sale of the property, Murray and Macpherson, t^. B., 5 L. C. 11., p. \if>\). Widow : — A widow guilty of unchastity, iluring the first year of her widowhood, is liaMe to ho deprived of her dower, hut a judgment to that effect, as to the rents issues and profits, will be prospective only. J vs. R , S. C, 7 L. C. R., p. 391. Wife : — Vide Married Women. Wild Lands : — Vide Possession. Will: — 1. An holograph will of personal and immoveable ))roperty is valid by the law of England, and ])rol)ate may he made thereof according to the Provincial Statute tl Geo. flT, c. -t, [Con. St. L. C, cap. 34<, sects. 2 and 3.] Grant vs. Planter S. R., p. 60. 2. The birth of a posthumous child revokes the will of its father partially. Hasina vs. Hanna, S. R., p. 103. 3. The condition of a devise to the lloyal Institution for the advancement of learning, that it should within ten years cause to be erected and established a University or College bearing the testator's name, is accomplished if a University of Royal and not of private foundation be esta- blished within that period. The Royal Institution vs. Des- riviires, S. R., p. 224, in notes. 4. It is essential to the validity of a devise of real estate that the holograph will, in which it is contained, should be entirely written by the testator, and closed by his signature. Caldwell and The King, S. R., p. 327. 5. A testator at the time of his decease possessed of pro- perty belonging to the succession of his wife deceased, by an holograph will, bequeaths all the property of which he might die seized to his heirs and legatees, who were also his wife's heirs, under the penalty that if any of them contested this will their share in his succession should be forfeited. He names two executors or trustees, and the survivor of them for the administration of all his property until a parti- tion. In the making of such partition he directs his execu- tors to act for some of the legatees, who were minors, and for another who was married, without the authorization of her husband for that purpose being requisite, and whose share they should administer during her husband's lifetime, paying her the rents, &c., and it was held that the will was valid ; but that its dispositions can be carried into effect only so far as they nfiect the succession of the testator, and that they could not in any manner apply to the succession of the testator's wife, of which the legatees were the heirs, and of which they were, in law, seized from the day of her ddffth, and that one of the executors having renounced to ,ll ' it . I I U 1 ' il 334 Will :— WI L ,'!' V ^ 1 ■( 1 ♦ i i' , ! J ■■■■ 1 '; . 1" l^,;- !■ -i ^"■1 'pi it- ^ m^- i y M L tlio execution of the will, the other had snisine ol' the testa* tor's succession to carry tlie will into cllect. Viger tj- a/, rs. Polhier, S. R., p. 3M. (j. Under the Qiiebr^c Act u will invalid nccordinj^ to the French hiw, und not execnted according to the provisions of the iStatuto ol' Frniuls, so as to pass freehold lands in Eng- land, will not pass lands in Canada, a though it would pass Copyhold or leasehold property in lingland. Meiktrjohn vs. The King and Cuhhvcll, !S. II., p. 581 ; 2 Knapp's Hep., p. 32S. 7. The debtor sued by the heirs of his creditor, cannot oppose, in his own name, to such demand, a will of the cre- ditor beipicalhing this ilebt to a third party, notwithstanding the notice given to the said debtor by the executor Ihat he would demand such bequest. And in such u case and in the al)sence oi tUlivrancc dclegs, the heir may receive the amount of the debt ami give therefor a good and valid dis- charge. Dcneau vs. Frofhhighani, is. C, 3 L. C. 11., p. HS. 8. A universal legatee cannot refuse to pay particular legacies, under the pretext of the insufKciency of the im- moveable property if he has not rendered an account of the estate or offered to give up the some ; and he may in such case be condemned to such ]»aymeiit individually and in Im own name. Lenoir vs. Humelin ij- aL, S. C, 3 L. C. R., p. 133. 9. A bequest on a contingency mentioned, not giving the plaintiff the power of disposing of n sum by will, does not vest the sum absolutely in her. McGillivray vs. Gerranf, S. C, 5 L. C. R., p. 301. 10. A bequest in trust is valid in Lower Canada, ft is not necessary that the words iu et relu be expressed, if it be apparent by the context that this formality was observed as required by law. That the respondent having taken pos- session of the estate of the testator under the will appointing him executor, the appellant, heiress at law of the testator, could not claim the whole estate by reason of the respondent having so taken possession, without a previous demande en delivnmcc dc legs, and that such denmnde by the executor afler his taking j)ossession, more than a year and a day after testator's death, was properly made. Freligh and Seymour, Q. B., 5 L. C. R., p. 492. Vide D£i,ivrance de legs. 11. A legacy by which a testatrix gives and bequeaths to all her children living at the time of her decease, by equal portions among them all her property, includes her grand children issue of one of her children, such child having died before the opening of the legacy. Lee vs. Martin &• al., S. C, 7 L. C. R., p. 351. Reversed in appeal, 1 1 L. C. R., p. 84. 12. A will executed before a notary and two witnesses, may be revoked by a subsequent one executed before one witness only. Fisher ^ al. vs. Fisher ^- al., S. C, 1 L. C. J., p. 88. 13. The omission to mention in express terms in a will that- the witnesses were present when it was read to the testator, does not render the will null if it appears by equi- valent terms that they were present. Dube 4* uz. vs. Charron dit DucJiarme, S. Q., 5 L. C. J., p. 255. 14. Want of insinuation and publication of a will cannot be op{K>sed to a possessor aniino domini suingHor bornage. \V I L 3:15 Will :— niul caiuiut 1)1' |iU'ailctl liy a |Kirty deriving title uikKt tliti will. I)eroi/(iu ut/if Wofiinn i\' n/'., ^^ R, 1 L. C. J., n. 137. 1."^. A iiotiuy l)C'li)ie w liom a will is passotl, is not nhligivl to mention thut he wrote tin* will. JiDvnissa vs. lin/tinl, S. C, 3 L. C. .1., |». 48 ; nor is lie biMiml to write it. C^nde. vs. C'adr \tiL, S. C, 2 F.. ('. H., p. 11. Ami it wii , ills.. lii'ld tlitit a t'iiuiMf ill n (U'l'tl ol (loiintion to tlu* elii-ct thut the tloni'c oniild not in uiiy way alicnnti' a cMrlain |in'|ti'rty tlnriiij; his iili', or ihiring Iliiil of iii> liithcr or of liis witl*, (Iocs not prtnM'ht tlu' testator I'roni ii'Mvinu' such iiropfrty to his wife. Itouidssti in. livtUir^l, S. C, 3 L. C. .1., p. IH. If). The e\ist«'ii('c ol'a will precludes all clain) liir /i nitihif. Qidiifi/t i\-(i/. rs. (I'/'tntl ly /^^., S. ('., 1 |j. C. .1., p. 1().'{. du- lirnicd ill appeal. 2 h. ('..I., p. 141 ; also, 8 [4. C. II.. p. 317. 17. A will made in the lorni o( a frsf'imc/it sa'ciiinr/, luil defectively no, and thcrt-lorc valueless as such, may he jiroved nnd avad as a will in tin; l-Jiiflish Ibrm. Liim/jr,t (ukI Uau- rmm ,)• uL, Q. |}., I I.. C. .T., p. iiOO ; also, 7 L. C. 11., p. 277. 18. Letters ol" ndininistration granted hy a Court of I'ro- hute in the .State of Michigan, do not extend hevoml the limits of that .State. The statute 22 Vic, e. ti, [C. .St. L. C, c. 91.] is inapplicable to this case, having l)een jjusscd .subsequently to the rendering of the Judgment in this ca.se. CdU ct ul. and Mormon, tj. JJ., 9 L. C. R., p. 4-24'. 19. A will must be proved in the district where the tes- tator died. E.x parte Sivcet, S. C, 10 L. C. R., p. 4.')1. 20. A will declaring that n hirm of the testator should be held by the male heirs of the testator's family in the manner thereinafter limited, and tlien givingoue half to William and his lawful male heir after him, and one half to Duncan and his lawful male heir after him, and in the event of William or Duncan dying without lawful heir or issue, giving the farm to Sophia Mackintosh, and unto her eldest son on tak- ing the name of Mackintosh. And to prevent all miscon- struction declaring that the eldest son of William and the eldest .son of Duncan, and no other, could inherit the farm, does not mean a bequest of the l^^rm to the eldest son of Sophia Mackintosh, — William dying and leaving no issue, and Duncan dying and leaving only a daughter. Bonadna vs. Bonadna a?id Gundlack, S. C, 3 L. C. J., p. 80. 21. A devise to a bCitard adulteriny not competent by the French law, when the will was made or when the devisor died, to take such bequest, is good and valid, if it l)e a con- ditional one as a substitution, and provided that at the period when the substitution became open, the disqualification of the devi.see had been removed by the 41 Geo. III., c. 4, [C. S. L. C, cap. 34, sects. 2 and 3.] Hamilton vs. P/cnderldt/i, 2 Rev. de Leg., p. 1.* *Tliis lioliling is calculated to lead one into en or. It is to he observeil that the Court held that the devisor had power to bequeath under the 14 Geo. III., but that the devisee had not power to take. But from the holding it niiyhl be siipposetl that the Court meant to affirm that a will absolutely null might become valid by subsequent legislation, not ol a retro- active nature, simply because there was a condition attached to it. One has however some difficulty in realizing the possibiliiyr of a man I'aving an unlimited right to dispose, without such right including the unlimited ri^ht to accept. The limitation of the right to accept looks wonderfully like a limitation of the right to dispose. " Quod legihusomis$um est, non omit- tetttr jndicantia." «' Cidjuristlictio data rst, ea qnoqiie cmicessa cssf videtitiir, sine qui&ut jurisaictio erpHcari non pot nit. ^* !H :,1 ill r- nU i H' ^ K'l ';>J f !if| ^: 336 Will :— U ■^;-i w T.\ w I L to w I 'r The oxooutors of ii tcstutor Imvo no quality to nmkc ii reprise iVmsUtncc, if such i/tsf.(t>ur leliitf to real property. //;. Nor to intervene ; and their intervention in an action ^«7^"- /oire will be dismissed on demurrer. Jiitfl vs. Lamhc, S. C, L. 11., p. :itj. '22. A wife coynmiinr en hii'in be(|neaths all her property to her liushaiid " poinccpeiKUmt /i\'n jxiitniirdisjxiarrc/i plci)n' propriete (/u''rn/avrur ilr /I'nrs rnfants, liii laissaiil ned/niimns /r jxniroir tfr /rs avd/itagrr frcs ini'gdlevirnt^ct tie fa, ))i inierr f/irH aoira vl Jugcra amir^tah/c,"' and institutes hini iier uni- versal lejfatee. Ader the death of the wife, the husband made to his son, the defendant, a d(»nation ifitcr vivos »)f three immoveable properties, two of which iiad been covqwts, and also of some moveabh^ eliects, and by his will he contirmed this donation, and also bequeathed to the same son, all the other properly of which he might die i)ossessed. The Court held, that the be(|uesttothe husband by the wife wasabc(inest of a usvfniit. lienoit et. al. n. Marcile, 1 Rev. de Le^;:., p. 140. 2'J. A bequest *' to all her (testatrix') children, livinj^at the time of her decease," includes her grandchildren, issue of one o( her ehihlren who died before the making of her will. Martin et al. and Lee,Q. Ii., 9 L. C. 11., p. 37t). 24. The condition imposed by a testator to his liberality, with the view of preventing the creditors of the legatee seizing them, is neither impossible nor is it prohibited by law, nor contrary to good morals. And the condition attached to a l(>gacy to the elf et that the legatee cannot in anywise engage, aflect, hyiwthecate, sell, exchange, or otherwise alienate the immoveables bequeathed within twenty years from the death of the testator, subject to the nullity of all the deeds which the legatee might make contrary to the said in- tention, is only a wise and prudent precaution, and the pro- hibition to alienate should be considered as equivalent to a clause of temiH)rary freedom from seizure, Guillet dit Ton- rangeau and Jienaud, Q. B., 7 L. C. J., pp. 238, 350. — Vide A MEN. — " Action Petitoire. Corporation, d^mvrance de legs. Evidence. HvPOTHfeQUE. Inscription en faux. Lkgacy. Legitime. Notary. Pleading and Practice. isudstitution. ss : — 1. A witness is not liable to be sued in damoges lor words sjioken by him under examination as such witness, liochon vs. Fnuser, S. C, 3 L. C. R., p. 87. 2. A witness may be examined twice by the same party Sl Denis vs. Grcnier et al., S. C, 2 L. C..T., i». 93.' « « « « << « * Aim! olteiier. I linve cxntninetl \\w same witness tliroe limes in the Mmo cnso li»r ilic i^laintill' on cxaniinntion in cliief, l>y |. R., 11 L. C. R., p. 4.21. fi. The right of a witness is to he taxi-d in the eoiirt in which he is examined, ami not to bring an aetion in anodior l\>urt, on a f/iiantum turriiit for attendances and loss of time as such witness, (iorrie is. Mayor, i^t-., of Monlrrat, 5. C, 8 L. C. II., J'. 236. Am! the witness eaniiot sue for the amount of his tax, but must jtroceed by writ of exeen- tion to levy the same from the elliets of the parly wlio summoned him, under the 22 Vict., e. .'>, see. 9, [C.S. L. C, caj). 83, see. l.'iS.] Veillrux vs. lii/,in. S. C. J) L. C. R., p. 6. Ami a witness examineil in a easi' where the th>fl'iidant was only a party vs (/iialite as tutor of a substitution, liiis no recourse against such defendant. J)(ig«'/i(iis vs. Gdidhier, 1 1 L. C.R., p. 281. 6. 'i'lie taxation of a witness cannot be suNscciuently revised by the Court The (/nnid Trunk IlaHuni/ Co jniny vs. Webster, 8. C, 1 L. C. .1., p. 2.'>1. 7. When the cost of bringing a witness from Upper Canada is not greater than a cununis.sion rov^atuire, the i)arty requiring his evidence will be allowed his travelling expenses. brown vs. Uugy, ^. ('., 12 L. C. R., p. 4-13. 8. There is no rule wliicli jin^vents a party from putting- more than the names of four witnesses into a subpcena. Couillardvs. Lcmietir, S. C, 9 L. C. R., \\ 393. 9. A witness about to leave the Province imder the 2f> Geo. III., cap. 2, sec. 12, [C. S. L. C, cap. 83, see. 101,1 may bo examined before the return of the action. And irregularities in a deposition are waived if uncomplaiued of for a year. Suppfr and Kmnedif, Q. B., 10 L. C. R., p. V^H. But see contrtl Midonc and Tate, Q. B., 2 L. C. R., ji. 99. 10. A motion lor Jeavo to a examine a witness about to leave the Province, is exempted from the operation of the llth Rule of Practice ; and a notice of such motion, served on Saturday, is sulticient for the presentation of such motion on the Monday. Bi/rne et al. vs. Fitzsiinmons and Fisher, S. C. 10 L. C. R., p. .383.* A rule lor contempt will not be granted against a witness who has failed to ajtpear on the signilieation ot' a stihjuena, ad restijiamdum,\u\\csi- there be proof by affidavit of personal service, tender of reasonable expense.*; and wilful disobe- dience. Se.Uon I". Boston and E^an,S. C., ft L. C. .1 ., p. 33'!'. * ICinstcnd ol' dismissing the motion, tiio Knsli>li prndioi' uiRivinj; liie p.niy i.l.jrciinf{ to loo Jr arbitrary oxcoiitions to this rule. it! 'I! ;i] 338 WIT to WRI SM -. fl . i'lilii- :»)J cc It it « Witness : — '' 11, The evidence of a party in a cause, examined as a witness in such cause, cannot be made use of by his adver- sary, unless the latter at the close of enquUe, or at some other time, declared his intention to avail himself of it. Owens vs. Duhuc mid Com-pbell, S. C.,6 L. C. J., p. 121, and 12 L. C. R., p. 399. x~Yide Bowler vs. McCorkill, S. C, L. R., p. 63. Even prior to the Statute abolishing all disqualifications of witnesses by reason of interest, parishioners could be examined as witnesses on behalf of the Fa^v^'^we in an action of damages. La FaJiriqiie dc Vaudreuil vs. Pagnnelo, S. C, C. R., p.33. - " Assessors. - *' Corporation. - " Evidence. ^ - " Faits et articles. Woman sEPARfiv. de biens : — Vide Promissory Note. " " : — " Married Women. Wooden Buildings : — Vide By-law. Wreck : — 1. Tn the case of the barque Flora — T^?75ow, (27th October, 1832j) Judge Kerr allowed salvage to the chief and second mates and carpenter, lor their meritorious services, equal to one third of the gross proceeds arising from the sale of the articles saved from the \vreck. p. 255, S. V. A. R. In notes. 2. Compensation decreed to seamen out of the proceeds of the materials saved from the wreck by their exertions. The Siller?/, p. 182, S. V. A. R. Writ : — Vide Consent. Writ de terris : — Vide Execution. Writ of Appeal: — Vide Appeal. Writ of Possession : — 1. A writ of possession will be allowed against the widow of a defendant who has died since the adjudication of the land by the Sheriff. Items vs. O^Neill and Holbrook, S. C, 1 L. C. J., p. 15. 2. But a writ of possession will not be granted against a person not a party to the suit, and any one so expelled may proceed by possessory action, and claim damages. Deles' derniers and Boudreau, Q. B., 9 L. C. R., p. 201. 3. If a defendant have held property more than a year and a day after the adjudication, plaintiff should proceed by a petitory action, and not by a writ of possession. Hart vs. McNeil, S. C, 4 L. C. J., p. 8. Writ of Summons : — 1. A writ of summons must necessarily accom- pany the declaration, and the appearance of the defendant will not cover the want of it. Taylor vs. Senecal et al., S. C, 3 L. C. J., p, 53. 2. A writ of summons requiring a defendant to appear before " Our Justices of our said Superior Court," is bad. The summons should be to appear before a Court, and not bofore the Justices of the Court. Macfarlanevs.DelesdernierSfS.Cf 4> L. C. R., p. 25. But in a case of Mac/arlane vs. Beliveau, the reverse was held, and this seems to have been the view taken of the objection in the Queen's Bench. 3 L. C. J., p. 306. ■ led as a is adver- at some elf of it. 121, and ifications could be an action elo, S. C, h October, nd second s, equal to lale of the , In notes, le proceeds exertions. WRI 339 Writ of Summons : — 3. A writ directed to " any of the bailiffs in and for the district of Montreal," without mentioning the name of the Court for which such bailiffs are appointed, is not null ; the writ on its face bearing evidence of having been issued from the Superior Court. Castle vs. Wrigley, S. C, 4 L. C. R., p. 28. 4. The writ is the beginning of the action, and therefore the jurisdiction of the Court is settled by the date of its issue, so that although signified to a person who has ceased to be within the jurisdiction of the Court, owing to the eslablish- ^ment of the new Districts, the action is well brought. Monty vs. Rtiiter, S. C, 3 L. C. J., p. 26. Writs of Prerogative : — By the 12 Vic, c. 41, ("C. S. L. C, cap. 88, sec. 1, cap. 89, sec, 1,] the form; lities required by the English law, in matters relating U- Writs of Prerogative, have been done away with. Parlies styling themselves ** citoyens notables^'' without taking the quality of ^^Fabriciens'*^ or " Paroissiens^^ cannot maintain an application to oust a person who has usurped the office of Marguillier de VCEuvre et Fahique. Crebassa et al. vs. Peloquiii, S. C, 1 L. C. R., p. 247. Written Promise : — T'«rf(? Evidence. ;,i e allowed since the vs. O'Neill against a jelled may ;s. Deles- lan a year [proceed by Hart vs. J-ily accom- defendant \al et al., S. It to appear ibad. The not bofore iie;'s, S.C., 5. Beliveau, In the view 3 Li. ^» J •> ; ; i 1 :r 22 w W iii' Mi ■ '■ 1 '■'.-' 1 1'. ■■ "i 1 ■ ' f 'i ,,' :»■ ' i i. i i I: ill f.' f> I !i 11^ NOTE OF JUDGMENTS IN APPEAL '11 Keported since the Ist of January, 1864, period up to which the above Index is brought, reversing, con- firming or modifying judgments reported prior to that date and mentioned in the Index. ,l;i Auld and Laurent et al. Held, reversing the judgment of the S. C. : — That a pianoforte, belonging to a third party, but removed by him from the premises where it had been as partial security for the landlord's rent, can be reven- dicated by the landlord within eight days from its removal, and the proprietor of the piano, if it cannot be found, will be ordered to restore it to the house from which it liad been taken, or pay the value thereof to the proprietor ; and this without bringing the lessee into the cause. 8 L. C. J., p. 146. Ayhvin and Judah. Held, modifying the judgment of the S. C, as to costs : — 1. That in an hypothecary action brought by a plaintiff, cessionnaire of a debt, the significatio i of the action on the defendant, tiers detenteur, cannot be 1 eld as a signiiication of the transfer to the principal debtor. 2. That where a plaintiff brings his action as upon a debt due and payable, and it appears from the titres de creance produced by himself that the debt is not due, {exigible) the action cannot be maintained. 3. That by the jurisprudence of Lower Canada, the cession- naire of a debt may maintain an action against the debtor without a previous signification to him of the acte of transfer. 14L. C.R., p. 421. Boston and Lelievre. Held, dismissing the appeal: — That a judgment of the Superior Court rendered on a writ of Certiorari is a final judgment ; and that, in the case sub- mitted, no appeal from such judgment lies to the Court of Queen's Bench, as constituted in Lower Canada. 14 L. C. R., p. 457. Broivn and Gugy. Held, confirming the judgment of the Q. B. : — 1. That obstructions to navigable rivers are public nuisances, and that no action by an individual lies for such nuisance, unless such individual suffers special and particular damage. 2. That, in the case submitted, the action en denonciation de nouvel OBUvre did not lie, inasmuch as such action can only be brought by a party claiming protection against a work commenced, and still in progress, by which, if com- pleted, he alleges he will be injured. 14 L. C. R., p. 213. ji'B! 1. iil \\ \ I ii 11 342 NOTE. m •il' 1 r ■il i:' >-: ;-i f J « : ■' J t"- '■•■ . ,\ . ii'lii'. - -; If' ■ ■■ Ml.. c |i :.(.*:. N;^ l h:i4':.: lllr'*. ir 'l"^ m'^*if\ ^' Bf f fc f'?,:•^: N;M Canlen and Finlay et al. Held, reversing the judgment of the S. C. : — That to prove the payment of a promissory note, recourse must be had to the laws of England ; and the payment of such note may be proved by parol testimony. 8 L. C. J., p. 139. David and McDonald, Held, confirming the judgment of the S. C. : — That where the floors of a building have sunk, in consequence of the insufficiency of the timber used to su[»- port the bridging joists and floors, the Architects and Sup- perintendents and the carpenters and joiners employed in erecting the building are jointly and severally responsible for the damages incurred, and maybe sued in one and the same action ; and in estimating the damage allowance will be made, in favour of the Architects and Contractors, for what the work would originally have cost had timber been origin- ally used of a size and quality sufficient to support the bridg- ing joists and fioors; and no allowance will be made to the proprietor for moneys paid by him to his tenants, for actual expenditure by them in removing out of the building during the time that the necessary repairs are being made. 8 L. C. J., p. 44. Davis and Cashing. Held, conlirming judgment of the S. C. : — 1. That where in a deed of sale certain lots of lands in consideration of a certain sum paid down, and «* of the further ''payment to be made forever thereafter, to the vendor, of " the one-tenth part of all net profits to result after deduc- " tion of losses and charges of all mining operations, as the " purchaser shall carry on in and upon the said lots, the same " to be ascertained to the 31st day of December, yearly; and " to be duly accounted for and paid over within the six '< months next following." Such per callage is payable, not only on mining operations by the purchaser individually and alone, but also on all mining operations carried on by him in conjunction with others, or in which he was, or was to be interested. 2. That an account rendered allowing only to the plaintiff, as representing the vendor, one tenth of the profits realised by the defendant personally from the mines, without regard to the amount realised or retained by a lessee or person actu- ally working or carrying on the mines, is contrary to the meaning of the clause referred to, and that a new account will be ordered. 14 L. C. E.., p. 288. Desjarditis and La Banquedu People. Held, reversing the judgment of the S. C. : — That an adjudicataire of a land described as containing 400arpents, whereas in reality it only contained 188 arpents, has an action against the plaintiff, to whom the proceeds of sale have been awarded and paid as mortgage creditor, to recover the excess of price, and in such case neither the sherifl^ nor the defendant need be summoned, and no prescription short of ten years exists against such action. 8 L. C. J., p. 106. Greenshields and Plamondon. Held, reversing the judg- ment of the S. C. : — That a note given in excess of the com- position accepted by the creditors generally, where it is not proved to be prejudicial to such creditors and is not com- NOTE 343 plained of by them, is binding on the maker of such note. 8 L. C. J., p. 194.. Hcugk ct a^ and Ross et al. Held, conlirniing the judg- ment of the S. C. : — That in the case of an aihdiivit to obtain a smie-arrH bcjfore judgment, the jiruthonotary nuist state in tlie jurat that the affidavit was sworn to before him. 14 L. C. 11., p, 4'29. And the ouiission of tlie words " before us" in the jurat of aflidavit sworn to before the prothonotary of the S. C, is a liital irregularity and a writ issued on sucJi an affidavit will be (quashed on motion. 8 L. C. J., \). 96. Jarry et vir and the Trust and L)j((h Companij. lli'Id, re- versing the judgment of the IS. C. : — 'f hat a rule fiu- folle cncMrc against a marrictl woman, sqiarec de hietis must be served on her husband, d 2mne de mdlitv. 8 L. C. .1., p. 29. Johnston and Archambault. Held, reversing the judgme)it of the S. C. :— That a strip of ground used for upwards of 30 years as a public lane or street will be hold to be such, autl a neighboring proprietor whose access thereto has been pre- vented Ity a fence or olher obstruction erected by another neighbouring proprietor has a right of action to compel the removal of such fence or obstruction. S L. C. R., p. 317, also 14 L. C. R., p. i?-22. Joseph, and Castonguay, Ilelil, reversing the judgment of the S. C. : — That the words "Joinssa?icc^^ and " tisvfruit''^ ia a donation do r.ot necessarily imply a nure nsvfruU., where the whole context of the deed evidently points at a sid^stitn- tion, and where the enjoyment |)asses to several persons col- lectively, "/ewr vie durant^ it accrues to the survivors. 8 L. C. J., p. 62. Leslie et (U. and Molsons"* Bank. Held, reversing the judgment of the S. C. : — That the truth of the facts sworn to in the affidavit may be attacked by an erception a fa forme. 8 L. C. J., p. 1. Lloyd and Bosioell. Held, reversing the judgment . 274. McDonald et al. and Dadd. The respondejit employed architects to plan and superintend alterations to certala stores in the city of Montreal ; the appellants contracted to do the carpenters' work ; the floors sank from one to two inches afler the completion of tlie works, and after tlie i; j '! \l \ nin ■■1 ! i .'|if 1 :■ 1 \ 1 IN \ . ».--* m ■ » I Sjl-'- I'l! a* iV; ■>:• M:i' rf .;■ ■!' i^^;^' f i-'Hi 344 NOTE. appellants had been paid. By the plans of the architects the joists provided were insufficient to support the floorings. And it was held, confirming the judgment of the S. C. : — That the architects and carpen»«?rs were liable, in solido, and could be sued in the same action for damages claimed by the respondent, by reason of the sinking of the floors. 14 L, C. K., p. 31. Monjeau and Dnhuc. Held, confirming the judgment of the S. C. : — That the purchaser of an immoveable, one half of which was possessed by the vendor simply d litre d'nsu- fruit, may refuse payment of the price of sale, if ho be threatened with eviction, and this without being obliged to accept the sureties offered by the vendor. 14 L. C. J., p. 344. Pappons and Turcntte. Held, modifying the judgment of the S. C. : — That the owner jwrindivis of a property charged with the payment of a rente, are not liable solidairement for the arrears thereot. 8 L. C. .T., p. ir>2. Terroult et vir and The Ontario Bank. Held, modifying the judgment of the S. C.: — That the assignment of a debt accepted by the notary, in the name of the assignee, is suffi- ciently ratified and j)erlected by the signification which is ninde in the name of such assignee, and takes efiect from the day of such notification. 14 L. C. R., p. 3. Stoddart et al. and Lefebvre. Held, confirming the judg- ment of the S. C. : — That when it is proved, in a petitory action, that the possession of the defendant's predecessors in the occupation of the land claimed, is antecedent to the date of the plaintiff's title, although the defendant may not be able toavail himself of possession in support of a plea of pre- scription of thirty years, for want of a title thereto, the action of the plaintiff" will, nevertheless, be dismissed. 8 L. C. J., p. 31. T ,■■■ 'I. ll-.-!a Appeal: — 4-. An ajipeal may be converted into an opposition and the parties be sent back to seek tlioir lennnly in the Prernste. L(U(indc de Gazon, Vc. Aitbert, and Lcs Dunnes Religicuses de rilutd-Dicu, P. Pre. dn Con. Snp., p. 1ft; also Maisonhassc (jr ux. and. Dupere, Jh., p. 28. 5. Appeal from an interlocntory, Cussy ^ others and (JuignUrCf is (jualites, P. Pre. chi Con. Sup., p. .'H. 6. Dcsistcment d''appd. Marchand and rg/-^'ca<, P. Pre. du Con. Sup., p. 39. Appearance : — Appenrancc of parties witliont assignation. Aimiritun S)' aL, P. Pre. du Con. ?^iii>., j*. 11. Vide Index, Wrip of tSUMMONS. Aruitres : — 1. Commercial cases sent to arbitration. Foumel and Bru'^uiirc, P. Pre. de la Prev., p. 28 ; also Havy i\- aJ. and Dcsaunier, P. Pre. de la Prcv., p. .^6. Bnt sometimes evoked to Con. Sup. to be judgeil mi fonds. Portis and Dcvicmics, P. Pre. du Con. Snp., )i. .oH. 2. Tht-ir award declared null, plaintili' having treated them. Delorme and Monflc, P. Pre. de la Prev., p. 41. Assemblies de Parents: — 1. Injunction to the judges with respect to assenibUes de parents. Daillebout ami Charly, pire, P. Pre. du Con. Sup., p. 22. 2. In default of parents the advice of neighbours and iriends is taken as to an intended marriage, Ritffio and Ruffio, P. Pre. du Con. Sup., p. 66. " : — Vide Tutor. Bail: — Vide Lease. Bail judiciaire: — Vide Tutor. Banalit£: — Cff««^aj>e condemned to take his flour to be ground at the banal mill and the seignior ordered to furnish a practi- cable road. Roi and Turgeon, P. Pre. de la Prev., p. 71. Benefice d'inventaire : — Vide Inventory. Bill of Exchange: — 1. Drawer of a bill of exchange discharged until the holder has used diligence against payee. Lcfevre and Sorhes, P. Pre. du Con. Sup., p. 16. 2. Drawer of bill of exchange condemned to pay it, and par corps. Delaise and Hiche, P. Pre. de la Prev., )). 14>. 3. Endorser of bill of exchange discharged, the holder having made no demand until after the delays oftheOrd.de Commerce. Havy and Pcrraidt, P. Pre. de la Prev., p. 26. Bornage : — 1. Where an incorrect line qI' concession has been given to a number of habitants according to which however they have all worked for nearly 30 years such line will be main- j tained. Peltier and Peltier, P. Pre. de la Prev., p. 7. Con- firmed in appeal. P. Pre. du Con. Sup., p. 7. Vide Index ■ Vbo. Bornage, No. 2. 2. An interlocutor will be pronounced to decide on what ( lands abatis has been made and its value, and this by experts. Roitleau and Labrtqiie, P. Pre. de la Prev., p. 31. 3. Bornage et arpentag& with authority to Curi to swear the arpenteur. Anctil and Leclcrc, P. Pre. de la Prev , p. 70. 4. Bornage et arpentage declared informal, the titles of the parties not being mentioned. Anctil and Grondin, Ih.f p. 71. A r P li N D I X . 347 Cabarktiers : — 1. Action for a tavern debt dismissed, liouilfard and Dcchamj), P. Pre. de la Prev., \\ 66. Vide Index, Vbu. ilOTEI.LIER, No. 4-. 2. Cabareticrs lined for selling drink during- divino service?. Le Ptocureur du Roi and Ferdte A- al., P. I're. ile lu Prev., p. 67. Collocation : — Privilege given to costs of suit, fees ofoflicc and per centage on deposit. Tache and Lncroix, P. Pre. do la Prev., p. 04..' Vide Index, Vbo. Costs, No. IS. Commission rogatoire: — Addressed to LitMit. (Joneral of the Haillage of Bordeaux. Degraves and Delie'amrt, P. Pre. de la Prev., p. 2+. Communaute: — Vciivr commune cannot be held liable for more than one-half of the arrears of rei.t de titrea dericaux, JSrnssard (J- ni. and Brassard, P. Pre. de la Prev., p. 78. Concession line : — Vide Bornage. Contempt: — Fine [or tnuuju*: de respect a justice. Abel and Girard dit Brvton, P. I're. de la Prev., p. 71. Contract: — 1. The stipulation in a contract that one i)arty shall alone keep up the fences and ditches will be set aside. Mercicr and Demunier, P. Pre. du Con. Sup., p. 52. 2. The enduits are included in a contract bearing " que la nuii^omic Sf'ra faite et parfaite.^^ Berlinguet and Lambert, P. Pre. dn Con. Sup. p. 65. 3. Interlocutor to determine if a barn lias been built according to contract. Moufle and Dclorme, P. Pre. de la Prev , p. 32. Contrainte PAR CORPS : — 1. Always accorded in commercial cases. Jay It and Marsal, P. Pre du Con. Sup., p. 21. Also Veys- siere and Buttcau, lb. 27. Even against iiconseillerjai/at and Marsal ; or a woman mirchande publique Corbine and Laverdiire, femme de Chs. Deniars, P. Pre de la Prev., p. 26. lb, Obse7- cations preliminaires, p. V. 2. Not granted against the widow of n merchant, con- demned to pay the commercial debt of deceased husband. Gouze and Lambert, P. Pre. du Con. Sup., p. 21 3. For the return of lepers communicated. Maufiut. and Ve. Man/ait, P. Pre. de hi Prev., p. 27. Contrat de CONCESSION : — Ccnsitairc (nrndomned to take a contract if he has only a bil/ct de conce^non, uuvl a litre twuvd in case of his having already a contrat de concession. Roi and Girard, P. Pre. de la Prev., p. 67. Contrat executoire : — Defendant obliged to furnish grossc in execu- tory form of his contract. Dariene Desmeloiscs and Armanil dit Maisons de Bois,V. Pre. de la Prev., p. 4-0. — Vide AcTE sous Seing Prive. Vide Collocation. " Default. " Distraction, , " Surveyor. CuRATEUR : — 1. Appointed to presumptive heirs absent. Les Reli- gieuses de VHdtel-Dieu Petrs., P. Pre, de la Prev., p. 27. 2. Condemned is qualitis to pay to plaintifTs seizing cre- ditors and opposants. Pascaud Sf al. and Chiiguiire, P. Pre. de la Prev., p. 40. Costs « « « m W i 348 APPENDIX. I! HI i,V f , li t, V I ii, « .,.' ': I i;- ■ i:: !' n, Cure: — A curt^ can maintain a nossessory action to prevent another „-:„-.. r- — .. : — L:_ o — :..^^ ^^^ Lecluisseur, friest from occupying nis cure. Soupir '. Pre. du Con. Sup., p. 38. « « Damages : — 1. Abandon of a goat for the damages done by it. Nor- wand and IjOjou, P. Pre. du Con. Sup., p. 16. 2. Condemned to return a stove and pines let to defendant or to pay the price. Minetand Eker, P. Pre. du Con. Sup., p. 69. : — Vide Courtant and Sert, P. Pre. de la Prev., p. 59. In appeal, P. Pre. du Con. Sup., p. 38. : — Vide Reparation d'honneur. Debats de compte : — Hainiard and Ve. lla/inard, P. Pre. de la Prev. p. 35. Also judgment giving 250 livres provisionally. Haimard and Ve Ilaimard, P. Pre. de la Prev., p. 39. Vide Index, Alimentary Allowance, No. 3. Decouvert : — A neighl)our is obliged to give decouvert to his neigh- bour and make fences and ditches. Demers and Ve Laberge, P. Pre de la Prev., p. 80. Vide Contract, No. 1. " :— Ditches. Decret: — Permission to sell, on three advertisements, real estate of so small value that it would not suffice to pay the costs of a decret. Bazil,Vb\.x.,and Barbel, P. Pre. (iu Con. Sup. p. 9. See also general Reglement forbidding any inferior tribunals to permit such sales. lb. p. 14. Default ■' — 1. Order to re-summon on first default. Lilande de Gazon and Les Dames Religienses de VHOtel-Dieu, P. Pre. du Con. Sup., p. 15. 2. Discharged on payment of costs of contumace. Maran- dmu 4- al., Pets, and Boillard, P. Pre. de la Prev., p. U. *• -.— Vide Marcereau and Vidal, P. Pre. du Con. Sup., p. 8. :— " Hiche and Denis, P. Pre. de la Prev., p. 4.2. Confirmed in appeal, Denis and Hiche, P. Pre du Con. Sup., p. 31. : — Lenormaml and Gamier, P. Pre. de la Prev., p. 12. : — Lemire and Romaiu, P. Pre. de la Prev., p. 29. Delay: — 1. Repit, limited on appeal. Cm'biere and Gidhnnin, P. Pre. du Con. Sup., p. 20 ; also Rouillard and Roberge, lb., p. 47. 2. Rejyit dissallowed in appeal. Jayat and Marsal, P. Pre. P. Pre. (!<• lo Prev., p. If). Contirmed in appeal, Guitlot and H'limurd, P. I're. du Con. Sup., 17. 2. Declared null the dori'ps having faik'd to carry out their promises. Lehlond ^' nx. and Drouin, P. Pre. de la Prev., p. 60. Confirmed in appeal, P. Pre. du Con. Sup., p. 43. " : — Tide Legitime. DouAiRE : — 1. Douaire et j^riciput established by marriage contract, are subject to contribution au sol la Hire in case of rfecow- Jiture of the husband deceased. Lapointe and Ve, Dondy, P. Pre. du Con. Sup., p. 24'. 2. Judgment forbidding the payment o{ douaire et remploi of the moneys. Lanoiz i\- Hermier et a/., P. Pre. du Con. Sup., p. 65, ENUUtTE: — Vide Diiquet and Buisson and Duquet, P. Pre. du Con. Sup., p. 58. EviDEMCE : — 1. Judgment dismissing an action for the price of goods, in the absence of proof in writing. Dazancctte and Charlijf P. Pre. de la Prev., p. 44. 2. Judgment condemning the payment of an account on the evidence of the books of account of plain tiil'. Briard and Payis, P. Pre. du Con. Sup., p. 64 ; also, Dacarette and Courtin, P. Pre. de la Prev., p. 57. 3. Plaintiff's wife examined in a suit. Capellier and Ve. Poitra, P. Pre. de la Prev., p. 33. " : — Vide Tailles. Evocation : — Vide Portes et Dcmennes. P. Pre. du Con. Sup., p. 59. Execution : — By consent of parties the immoveable property may be sold before the moveable. Leglisse and Trudel, P. Pre. de la Prev., p. 80. Vide Index, Vbo. Execution — Immove- ables, No. 1. Exhibits : — Order to opposants to file exhibits. P. Pre. de la Prev., p. 76. Expertise:-—!. Daviene Desmeloises and Dcguise, P. Pre. de la Prev., p. 41. 2. Expertise to determine the divisibility or indivisibility of immoveable property. Chapeau and Chapeau, P. Pre. de la Prev., p. 68. " : — Faicfe Bornage, No. 2. " : — " Contract, No. 3. " : — " Surveyor. Extra work : — Indemnity allowed for extra work in building the parish church of Quebec. Moreau and Parent, marguillier en cAarg^e, P. Pre. du Con. Sup., p. 55. • . I ' ■ I 1 ' . 350 APPENDIX. Fink Factuhes: — Viinltl. dit o\ 11 laihl, (Ii'«liu*tiiiy iirroars of crHs y n — "^ Yillvmiivc and Midland, V. Pre. dii Con. iSiip., p. 37. ! ■' ; y I V »-.d (I'AnniEN: — 1. iuirdirii con»lon\ned par fwryw to produce i'tlcets euin- niittcd to his chiirg*', or to pay (if) livirs as principal, interest \.\n*\ costs, and costs oi snit. Continued in Appeal, with a month's delay par iWukc. Gilbert a?id Jogi/iet, P. Pre. du Con. Sup., |i. ir», l7f/(" Index, Vho. (Iaruien, No. 1. And to pay the heht. iiourtlraitx and Desmo/icr, P. Pro. de la Prev., p. t)2. 2. Party appointed ctunnnssaire d iine saisie rn/Ze to nci. Levassfur ami Dii/'renr, P. I're. ile la Prev., p. 17. .S. Gardien discharged the moveables seized, not having been sold within two months. Duburon and ChaKmcreau, P. Pre. lUf la Prev., p. 19. But see my notes on the 17'2nd article of the Custom of Paris, p. *27, 2nd edition. 4. Tenants enjoined to pay rent to mw»j/.v.sYj/r^ established to a property. Contdam, Ctnn., and Clement ct al., P. Pre. de la Prev., p. 29. IIkir : — I. The obligation of a debtor deceased, declared executory agi\inst his heirs, jointly and severally. Left'vre et Ve. Cum2)ag7ia ct al., P. Pre. de la Prev., p. 52. See my note on the 168th article of the Custom of Paris, p. 2G,2ud edition. 2, The heir of a syndic condemned to produce a sum of money collected by him to bo divided an mnrc la Hire. JIavif et al. and Lamo7ille, P. Pre. de lu Prev., p. 62. lIi;i8siER : — A seizure being declared invalid, the seizing bailiff con- demned to restore the costs. Ve. Jindiereau and Gatien, P. Pre. de la Prev., p. 13. Injure : — An unnecessary and imperious expression in a pleading may be struck out l)y order of the Court, at the instance ol the party aggrieved. Charest et al. and Charly, P. Pre. de la Prev., \>. ii. Vide Simard and Cotton, P. I'ro. du Con. Suj)., p. 4-5. Lagroix and Lanouiller, ib., p. 67. Liard et al. and Legns et al., P. Pre. ilo la Prev., p. 55 ; also, Dupont and Jidanger, ib., p. 79. Inscription en kaux : — .ludgment ordering deposit of note inscribed e7i faux and consignment of moneys for costs of proceeiling. Vtn/er and Midielon, P. Pre. de hi I'rov., p. 23. Interdict: — Form of restoring an Interdict to his rights. Deiin, Ftr., P. Pre. de la Prev., p. 28. Intervention : — Ve. Vaillant and Pilotte, P. Pre. de la Prev., p. 4-9. Inventory: — 1. Form of closing an inventory in presence of King's attorney and the subrogate tutor. P. Pre. do la Prev., p. 10. A r r E N n I x 351 Inventory : — 2. Now inv(Milor\ ordoro'- tlie tiiturol i'hiltln>n of a lonnor miuritigr not liavini;- liocn Miiumoni'il, luul onK'r to prDOocil in his pri'scm'f and in that of the .sulinigati' tutors of both mar- riages, hdnoi.i- K^ liinud IV. Mofi/i, \\ Vw. do la Prov., p. *^7. 3. Efif^rincnirnf dr /etfrrs iVInrilirr sons henvlirc irinven- taire. V. Pro. ch> la Trcx ., |i. 4r>. 1. .Iiidjiiiu'iit airainst //«V7V/V/- ,>.(i//s hinefici' (Viiurnlain', in siii'h t|nality, siiltjoL't to 7ii/>pon in caso of contribution. rnmiilt (ind h'niifr, \\ Tri". do hi rrov.. p. f)-!-. ."). Ixtxr/ in niakini;; invonlory, C/cnet a'/.' Dcni/rn/s mxl Vn-iifat, \\ Tro. do hi Prov., [i."r>S. JutJRMENT lOxKl'lTOlUK : — Viilr lIlMK. Juuisnii'i'ioN : — Dofoiuhiiit (hiinicih-d in iNU'iitroal oonhl not bo siiin- jiionod at (.^'noboo whoro ho was niily loiuporanly on >pooial busiiu'ss. lia^cots il Ic Frt'rc (irntiis, V. Pro. ile In Prov., p. l-t. Lease: — The tenant is oblijioil to iianiir the iiroinises for tht^ security of the rent. Lcp^cr and Man/i/s, P. Pre ih> la Prov., J). 11. And defendant was also eondenined to vacate the [ireniises h>aseil, in case oi any coniphiiiits owing to the noise made by liim in earryin dc ^nl(K)irs.) 11). In A|ipeul, this sentence was eonlirmod, .saving the Coimcirs right to decide as to any eomphiini for noise P. Pre. dn Con. fot, P. Pre. ile la Prev., j). 46. 3. Notice to qnit, given to a tenant, is declared good and valid, on condition that the pro[>rietor shall himself occnpy the premises, liouilhud and Ihm/va,r. Pre, dn Con. Sup [). 2G ; and pay damages. Jchannc and Dusauloi/ ct. a/,, P. Pro. dn Con. Sup., p. 51 ; and without damages, retithois and Carticr, ili., p. 54- ; ami the tlamages fixed at two quarter's rent, Pnuliot et nx and Voce/, P. Vrc, do la Prev., p. 7.") ; or at «»ne (jiiarter's rent. Vc. limtii and Toussainl, ill., p. 79. Vide index, \l)o. Least., No. 7.' L^uilTiMB : — The donee was obligoil to make up the /ciiitimc to the heir of the donor. Man/ft and JMt'loi, P. Pre. de la Prev., p. '21, and Pre. dii Cod. Sup., [>. 23. (See my not«(s on artich> 2J)S of the Custom «»f Paris.) Lessor: — 1. I'rivilege of the lessor, and probably 77iaiti /rvir o( moveables not belonging to defendant seized with thoso ot defendant, without costs. Voi/i-t- and Vichft, gardien, P. Pre. de la Prev., p. 10. 2. J\T(iin /free granteil of two stoves leased to tenants and seized in their hands. iMai/ion and IV. Viand and Lrger ct vx, and Le Frtrc Tior dit Clirt'ticn, P. Pre. de la Prev., p. It). 17/^ Index, Vbo. SAisrE-tJA(iERiE, Nos. 1 and 2. 3. Notice to tenant to quit on the Mth May, good. Dfc/nnauu- and Lrcfcr, P. Pri>. de la Prev., p. liS. Vide Index, \'bo. Lessor, No. 13. ♦ This right ol'tho tuiullonl was abolishcJ in Cftnailii l)y lt> V^. cap. i>2. I. 804, V. S. L. C, 1= ti h ill tl h ^ * II 1 1 ;:;«■! T 352 APPENDIX. LODS ET Ventes : — 1. Are due on sale from one co-heir to another before partage. Gaillard and Roberge, P. Pre. de la Prev., p. 22. 2. Judgment for lods et ventes on sale from father to son. Gaillard and Fontaine, P. Pre. de la Prev., p. 54. 3. Seignior not obliged to ensaisiner contract while arrears oHods et ventes are due. Valle a?id Procureur du Seminaire de Quebec, P. Pre. de la Prev., p. 72. : — Vide Seigniorial Dues. « i ';r ■■; :j: ' [it' i, •* I- 11-^ . :l^ if) . i: ir ■;» t rn li ■ I. Marguilliers : — The former niarguilliers obliged to recover the debts due in their time to the Fabrique, on the demand of the marguillier en cluirge and conclusions of M. le Procureur du Roi. Boutin, marguillier en c}uirge,and Bonhomme et a/., P. Pre. de la Prev., p. 12. Maritime : — La prevoste did not take cognizance of maritime con- tracts. Doumere and Olivier, P. Pre. de la Prev., p. 48. Marriage : — 1. Opposition to marriage by father of the future husband. Willitt and Louet, P. Pre. de la Prev., p. 21. Confirmed in Appeal, Pre. du Con. Sup., p. 18. 2. Proceedings for abus in the celebration of a marriage. Baudouin Ve. Rouville et le Sr. de Rouville, minor and othei's, P. Pre. du Con. Sup., p. 40. Vide Index, Vbo. Marriage ; also, Vbo. CuRfi. Marriage Contract : — Declared executory against tutor ad hoc. Rouer de Villeray and Perrault, P. Pre. de la Prev., p. 23. Master and Servant : — A servant deserting his master's service before the termination of his engagement, cannot recover his wages. Clesse and Gatel, P. Pre. de la Prev., p. 78. Minor: — The grandfather of a minor will be given the charge and custody of the minor in preference to the father, if he under- takes to rear the child at his own costs and charges. Normand and Margou, P. Pre. de la Prev., p. 13. But this case was reversed in Appeal, the father offering terms equally advantageous to the minor. P. Pre. du Con. Sup., p. 11. MuR MiTOTEN (pu de separation) : — 1. Neighbours condemned to furnish nine inches of ground for the building of a separation wall of three feet two inches in thickness, and to contribute for the construction in proportion of nine inches in thickness and to the height of ten feet, without costs. Boisseau and " Hubert, P. Pre. du Con. Sup., p. 33. Vide articles 205 and 209, Coutume de Paris. 2. And even when there is already a fence of pickets, good and sufficient, defendant ordered to contribute accord- ing to the Custom of Paris. BertMot and Sabowin, P. Pre. de la Prev., p. 73. Notary: — 1. Judgment ordering a Notary to produce two minutes in Court. Leclerc and Lahrie, P. Pre. de la Prev., p. 7. But see Index, Vbo. Notary, No. 2. 2. Sr. Vancour Bellevue forbidden to act as a notary, not having the quality. Le Procureur du Roi and Bellevue, P. Pre. de la Prev,, p. 66. 3. Notary authorized to take the affirmation of an account. Vignaud and Lamaletie, P. Pre. de la Prev., p. 69. m APPENDIX 353 Offers : — The offer to settle, declared valid. Chaumont and Goguet, P. Pre. du Con. Sup. p. 62. Offres RfiELLES : — Tender to a bailiff declared valid. Amiot and Dujiire, P. Pre. de la Prev., p. 20. Confirmed in Appeal. Pre. de Con. Sup., p. 19. V. Index, Vbo. Offres Reelles, No. 2. And it must be observed that there being at that time no Avocats or Procureurs, the huissiers often conducted the procedure on special powers of attorney. Introduction to P. Pre. de la Prev., p. v. ' i !| I Pain Beni : — Defendant condemned to give the ^;am fjeuif a ciergc and a queteuse. Boutin and, Rioj)cl^ P. Pre. do la Prev., p. 12. PxTERNiTfi : — Action en dedaratiofi de, Fabas dit St. Louis and Roi, P. Pre. du Con. Sup., p. 56 ; also, Roi and St. Louis, P. Pre. de la Prev., p. 63. Vide Procedure. Penalty : — Defendant condemned in a penalty of 20 Hires for having offered to affirm, contrary to good faith, that he owed plain- tift' nothing. Arguin and Jean dit Toura?ijeau, P. Pre. do la Prev., p. 60. In appeal the judgment was confirmed. P. Pre. du Con. Sup., p. 42. " : — Vide Seigniorial Dues. Prescription: — 1. Of promissory note by 30 years. Vaile and Riveriii. P. Pre. de la Prev., p. 15. 2. Of supplies furnished by an onvricr l)y six months, under article 126 of the Custom, Foumicr and Clumsscgros de Lery, P. Pre. de la Prev., p. 76. See also my note on same article of the Custom, p. 21, 2nd Ed. " : — Vide Dixmes. Procedure: — J. Chnjjlin and Ve. Giroux, P. Pre. do la Prev., p. 35. 2. Actiun dismissed, the petition not ])C'ing sigiietl either by plaintiff or attorney. Nouchel and Greysac, V. i'rc. de la Prev,, p. 43. 3. Judgment by default on assignation at last domicile of defendant in declaration dliypotheque. Poissei and Lurdic- vesque, P. Pre. de la Prev., p. 53. 4. En 2)citernite. Roi ayid St. Louis, P. Pre. de la Prev., p. 63. « '.—Vide Saisie, No. 3. Procureur : — Condemned in his own private name in the costs of an opposition. P. Pre du Con. Sup., p. 61. Promissory Note : — 1. Judgment condemning debtor to pay a con- ditional note in money. Cosse and Pldlibcrt, P. Pre. du Con. Sup., p. 35. 2. Husband discharged from paying the promissory note made by his wife, without his authorization. Jiremic and Bdlorgct, P. Pre. de la Prev., p. 8. Vide Index, Vbo. Promissory Note, Nos, 11, 12, 13 and ll. 3. Lost. Judgment condemning drawer to pay it. Tre- jmgny j)our Bouchard and Dauteuil, P. Pre. de la Prev., p. 9. In Castle vs. Bahy, suit was brought on a promissory note lost. S. C, 5L. C. R., p. 411. 4. Prescribed by 30 years. ValU and Riierin, P. Pre. de la Prev., p. 15. 23 Is 354 APPENDIX. \l: . Promissory Note : — 5. A note payable " during the month of October," and not " during the zihole month of October," is payable and may be demanded any time during October, Cfuignihe and Foucher, P. Pre. de la Prev., p. 43. 6. An action on a promissory transferred after signification of a saisic-arrit on holder, known to plaintiff, will be dis- missed. Liquart and Nouette, P. Pre. de la Prev., p. 61. w. I i;t^ ■«ir i •111' i ill V j.», • ?1 Katification : — Sale declared null for want of ratification. Chavigmj de la Tesserie and Ve. Frs. de Chavigmj, P. Pre. de la Prev., p. 42. Kbbellio.v a Justice : — Judgment condemning party accused of rebellion d justice. Nonnand and Clesse and Courtin, P. Pre. du Con. Sup., p. 32. Vide Index,' Vbo. Rebellion a Justice. Recision: — Enterinement de lettres de redsion. Vide Baillargeon, fils, and Rondeau, P. Pre. du Con. Sup., p. 53. 2. Enterinement de lettres de recisimi et restitution en entier. Charests i]- al. and Charly. P. Pre. de la Prev., p. 52. Renonciation: — 1. By heirs to a succession. Prevost (J* al., Ve. Prcvost, P. Pre. de la Prev., p. 38. 2. Form of renonciotion at the greffe. Ve. Leger dit Lajeuncsse, P. Pre. de la Prev., p. 39. Rente CoNSxiTUfiE :— The debtor who fails to pay a rente constituee, will be compelled to pay the capital. Louet and Louct, P. Pre. du Con. Sup., p. 41 ; also, Hiche Sf Ve. Morville, P. Pre. de la Prev., p. 18. Rente fonciere:—!. Dete7iteur condemned to pay 29 years arrears of a re?ite foncicre. Ve. Duchcsnay and Ve. Chambalon, P. Pre. de la Prev., p. 18. 2. Rentes foncieres are always redeemable in the town and its suburbs. De Boisderc et Lcs Dames Ueligieuses de rildtel-Dieu, P. Pre. de la Prev., p. 63. (The words in the Custom article 121, are " en la ville etfauxbourgs de Pans,^^ they were therefore extended to any town or its suburbs. There are other cases in which difhculty has arisen with us as to the extension or restriction of similar words ; for instance, in article 112, where they are restricted, and articles IIG and 209, where they are extended by mter- pretation, See my notes, pp. 15, 18 and 40.) Rentes Seigneuriales :— 1. Reduced. Amiot and Bossez Sf al., P. Pre. de la Prev., p. 8. 2. Co7icessionnaire condemned to pay cens et rentes of land sold to another, the sale not having been denounced to plaintiff. Ve. Duchesnay and Turgeon, P. Pre. de la Prev., ). 19. « : — Vide Seigniorial dues. Reparations :— To be made to a house. Interlocutory to estimate. Simon and Larue, P. Pre. de la Prev., p. 30. Repit :—Vide Delay. , ,, „ , « « j i -o Reprise d'Instance -.^Fournier and Malbauf, P. Pre. de la Prev., Retrait iiiGNAGER x—Fagot and Turpin, P. Pre. du Con. Sup., p. 52. tt APPENDIX 356 Saisik: — 1. For rent of a farm declared valid and lease resiliated for non-payment of rent. Ve. Sarrazin and Fhilibot, P. Pre. de la Pre v., p. 46. 2. Saisie without title or judgment declared invalid. Boutin and Lebreton Sf al.y P. Pre. de la Prev., p. 56. 3. Where seizing creditors neglect to prosecute the seizure another creditor may be subrogated in his stead. Perraultf creancier de Chs. Lapalme and Charest c of an immoveable of minors on demand of tutor. Lanoix, tutor, Petr., P. Pre. de la Prev., p. 31. .;• ^ ■ 5. Order to a tutrix to take the quality for her minor • children. Prevost ^ al.fand Sisdillot, P. Pre. de la Prev., "^'^ p. 50. '-vi: , .^.^I/i vu; i.^ao ■ -'■. ' ■• -.'til '-a " : — Fiffe Marriage Contrcat. ■ •" " ; . >f i ; W it u APPENDIX 357 Tutorship: — 1. Form of presentation and acceptance of an account of a tutorship. P. Pr«. de la Prev., p. 11. 2. Tutorship, inventory and partage declared null. Lala- guye and Teirien (J- al., P. Pre. de la Prev., p. 65. Verification op WRiTmc :— Judgment confirming the precedure as to the verification of writing by comparison of writings. Rouillard and others and Levasseur, P. Pre. du Con. Sup., p. 30. Vide Index, Verification of Writing. Wages :— A father may sue for the wages due to his son (probably a minor.) Fortin and Amiot, P. Pre. de la Prev., p. 48. Widow :— -The widow donataire mutuelle is not required to give secu- rity for the thing contained in the inventory and of which she has the usufruct. Boissel, Ve. Laroche, and Dufrine, P. Pre. du Con. Sup., p. 68. I i iill it f !:l :ii!: :<'li m ^■1: ^ ■- -^i 1 ^ \ 0' ■ :f i|;:i ■ '■':i--, ¥ 'V ' m If }^ TABLE OF REFERENCE TO INDEX. i 1} FAOE. Absentee ] Acceptance 2 Accession accroissement Acte o'h£ritier. . . '. 3 ACTC sous SEING PRIVfi Action En declaration de paterniU. .. En destitutimi de tutelle En garantie En partage 'l* En reddition de compte Hypothecaire 6 Petitoire Possessoire 8 Quanta Minoris 9 Redhibitoire Resolutoire To condemn Trustees to exe- cute deed of Assignment. . 10 Adjudicataire 11 Admiralty Admission 13 Adultery Advocates 14 Agent Agricultural Act 16 Alien 17 Alimentary ALLOWANCE Ameublissement 18 Appeal 19 To the Superior Court — Bond.. Petition Evidence 20 Interlocutory judgment Jurisdiction To the Queen's Bench — Writ. . Bond Jurisdiction 22 Petition 23 Miscellaneous 24 To the Privy Council — Bond From Courts of Vice-Admiralty. 26 Appearance Appendix Apprentice Arbitration Architect Articulation of facts. Assault Assessments Assessors Assignees Assignment Assumpsit Atermoiement Attachment Attorney Attorney General Auction Auctioneer Aval PAGE. 26 29 30 31 32 35 Bail— By Attorney To Shcriir Bail — In Criminal cases. j BaILLEUR DE FONDS : Bailiff i Bank of Montreal 1 Bankruptcy ! Bar I Beaches Bet Bigamy 'Bill of Exchange 1 Bill of Lading Bill of Particulars... Bon Bond Books ok Account Bornage Broker Brothel. ...» Builder Building Societies By-law By-road 36 37 38 39 39 • • 40 • • 41 43 44 • • 45 • •*•••• 46 47 • • 48 ( I I i?i ii 360 TABLE OF REFERENCE TO INDEX. I) /:N n ;.^ I,; ■':,;■• 1 Capias ••..... 'AOK. 48 • • 56 57 1 59 • • 60 62 • • 63 • • • • Aflulavit Capias ad satisfaciendum Carriers •......•••• Certificate • Of no riea Of Service •• Certiorari Cession Churches ••••••<••• Church op England Circuit Court City Councillor Civil Death. .« .•>.«... Code Marine. ................ 64 Collision.. .....•>«...■«*•*■•■. 70 • • ■ • 71 Collocation • Commercial matters. ......... COMMINATORY CLAUSE Commission ..■«.«.■• Commissioner (Commissioner's Court. ..•«•■•■ 72 Commission rogatoirb Commissions ......>...*..■■<«• Communaut£. ...... ..........a * . 73 75 • • 76 • • • • 77 • • Compensation. ...■.■««.•••■■•• COMPLAINTE •*.••• • Concession .••....>■.■■••■■•«• Condition Precedent «.«• Confession of Judgment Confirmation of Title Conflicting Decisions. •.••.•• ■ Cong£ de defaut Consent Consideration Consignee Consulato del Mare.. ........ • • •• Crimes and Misdemeanors Contempt Contract. 78 Contractors Contrainte par corps • • 79 82 83 87 • • 88 • • 89 • • 90 • • • • 91 Conviction Corporation Costs Criminal Information Criminal Law Cross Cullers Cumulation of Actions Curator CuRfi Currency Custom of Trade Customs Duties rA'ii-. Damages i)l Debiteurs sompaires 96 Dech6ance Declaration . . d6c0nf1ture DfiCRET 91 Default • D£gubrpissement 98 Delaissement Delivery DfiLIVRANCE DE LEGS 100 Demurrage 101 Deposition Deputy Sheriff 102 DfiSAVEU Desuetude Discretion Discussion Disrating Distraction de frais Distribution 103 Dixmes \04t Domaine Seigneurial Domicile Donation 105 Dot 107 Douaire Droit d'ainesse 108 Droits honorifiques 109 Election 109 Election Agent 110 Emphyt£ose English Civil Laws English language ENQUf.TE Ill Erasures 112 Erreur de droit Error ••• Evidence Evocation 121 Execution • •• Moveables 122 Immoveables 123 Executor 125 Exhibit Exhibition de titres... Ex PARTE Experts Expropriation 126 Fabrique 127 Factum Faits et articles False pretences..... 129 TABLE OF REFERENCE TO INDEX. 361 TAdl'. Fees 129 Felunv 131 Ferry FiDEJUSSEUR 132 Fisc Floating lights Flogging • FoLLE-ENCHtRB Foreign Judgment 133 Foreign Law Foreign Ships 134 Forfeiture Forfeiture and Penalties Franc et (^uitte Fraud Freight 135 Fugitives » Gambling 135 Game Laws Gardien Government Officer 137 Governor Habeas Corpus 137 Half PAY 138 Harbourmaster Harbour of Quebec * Heirs Hire HONNEURS DANS l'EgLISE hotellier 139 Hypothecary Action HvPOTHiiQUE Impotencv 149 Improvements Imputation 150 Incidental Demand Incumbrances on Property Indians 151 Indictment Insanity Inscription de faux Instituteurs 1 53 Insurance Interdict 159 Interest 160 Interlocutory Judgment. 161 Interpretation OF Deeds 162 Inventory Joint-Creditors 162 Judge Judgment 163 Judicial Sale ••• J()4- Jurisdiction ,,,,. .,i . . . Jurors 167 Jury Trial 168 Justice of the Peace 1(5!.» Justification 170 Kerr (Judge) 170 Lands 170 Landsman Larboard • Law 171 Law Officers Lease Legacy 172 Legatee 173 Lesislative Assembly 174 Legislative Council Legitime Lesion Lessor and Lessee Letters Patent 177 Libel 1 78 License ' LiCITATION Lien Life-Rent ISO Lights (yues droites) Lights (on Ships) Limitations Litispendence lods et ventes 181 Look-out 182 Lost Lottery Loyers Machine 182 Mainmorts Malicious arrest 184 Mandamus Mandataire Manure 185 Marguillier Marine Insurance Mariners 186 Mariner's Contract 187 Marriage 188 Married Women 189 Master and Servant 191 Master of Ship Mate 192 Material Men 193 Measurement. . • • « • . • . . • • ! ■Pi- ' 362 TABLE OF REFERENCE TO INDEX. I' I , ' i : 1 i : ■ id ■ 1 1 * TAQ*. mlmbbrs op the legislature.. 193 Merchant Shipping Act op 1854. . . Merger 19i Mill-dam Minor Minority 195 Minute Misconduct Misnomer Moneys Mooring Motion 196 Moveables .. Municipal Act Municipal Councillors 197 Municipal Councils Municipal Debentures Municipal Elections 198 MuR Mitoyen 199 Navigable River 200 Negligence New Conclusions New Trial.... Newspaper * 201 Notary Notice 202 Notice of Action Notice OF Motion 203 Novation Nuisance 204< NuLLITt DE VeNTE Number Obligation 204 Office Offences OfFRES RfcELLES 205 Onus probandi Opposition Option 210 Order Okders in Council Owners Perishable Effects Perjury Few Pilot Pilot Acts Pleading and Practice Action.... Declaration Appearance Preliminary Picas Picas to the Merits : Demnrrer Exceptions and General Issue : Answers and Replications Foreclosure Articulation of Facts Inscriptions Interventions Oppositions Collocation Siiisie-Arr6t Miscellaneous In Court of V^ice-Admiralty. . . . Port Possession Power of Attorney Prerogative Prescription Presumption ». . Preuve avant faire Droit Primrose Privilege Privileged Communication Privity of Contract Proctor Prohibition Prohibition to alienate ....... Promesse db Vente Promissory Note Protest Prothonotary Proxies Public Officer rAac, 216 217 218 2ii 221 222 223 226 22!) 230 231 232 233 234. 236 237 238 243 244 245 252 253 Facte Commissoirg 211 Parliament Partage Partnership Partners 213 Passenger 214 Railway Cases Quantum meruit 253 Quebec Queen's Bench 254 Quo Warranto 254 PaTERNIT£ , Fk^ATIFICATION OF TiTLE 256 Patrone Rebellion a Justice 25S Penalty Receipt in full Peremption d'instance ; Recel TABLE OF REFERENCE TO INDEX. 363 TtcroaNiZAivci!. «••*•••«>•• 258 SbPAKATIOM PB BIBIfl. • • • t PAOK. 291 Recordir* ••«•*•••••*••*• 259 Separation db oorpi bt db bibnb. Sequestrb SbRMBNT DflCISOIRB Sbrvicb ••••••t**««»*«*«**«<** 292 Recoupement ••*• ■•••••• 259 Recusation <••<•••• Reoihters.. ..• •••«•' --' Tlcnf^TRAR -.-- «..««••««• Qfift Sbrvitbdb •••••■•••••••••••••« 295 Registration •••*••••.•••---'' SBBSlOIVi RmtflTRT nv Vl*fl4ET ...... 9fi1 Shareholdirs >••«*••.••« 296 RtlNT^GRANDE TtELATtONSHIP Shrrivf •• •••>•••••••••••••»•« Ship 299 Release.. • 262 • • • • • • • Signification Religious Congregation . TV^MliRfi Simulation ■■••••••••••••••••• 300 Slander • •••.•• Remise South Sea* ••••..••.•• 301 Rente ConstituAe. .•..••• 262 Starboard. •••••• •••.. Renunciation ............ • t • • • • • Qfio State Paper •...••••. Replt .«.••••••••••.•••.• Statute ••« RrPRmE Ti'lN^TANTP- --.- Statute labor. ••••.. >• Reprises Matrimoniales. . REQUfcTE Civile • • • • • • • Statute of limitations Statutes ..••...•• 302 ReQUCtE LIBELLfiE Res judicata. .*!.*.*.* 264 Steamer .••••• Steam Navigation Act Steam Tugs .••••••.. 303 ReTRAIT CONVENTIONNEL. . 265 Retrait Lignager. Steward 304< Return— DAY Student « Returning Officer •. SuBPffiNA Revendication Ofifi Subrogation ••... Riparian Proprietor «••.. Substitution Rivers ..• 267 Sub-tenant • ••.••.. 30f> Road.... QfiS Succession *••... 30fi Road— TAX .• Superior Court. Roman Catholic... Surety •«•• < Rl'LE .•«•.< Surrogates. .••....•*•••• 307 Rule of Practice Rule of the Sea 270 Surveyor Sword .....•• • • Rules and Regulations.. 271 271 Table of Fees 307 Saisie— Arret ...........< Tacite Reconduction. •••...... 303 Saisie-Gagerie 277 Taxes Saisie— Revendication. ... 278 Ta vern-Keepers ....«••■«..... 309 Salary 280 Tavern Licences Sale 281 Testamentary Executors Tiers detenteur Tiers-Saisi Sale of Ship 9R4. Salvage .....•-- Savings Bank 285 Timber ..••■■•..< 311 ScELLfi ..1 98fi TiTRE-NoUVEL . .....••. ......I 312 School Acts r Toll— Bridge School Commissioners. . . . • • • • • • • 967 Tradition • School Municipality.... ^ Transaction 313 Scire Facias r Transfer ....• 314> Season of Navigation... • • • • • • • • '.*.'.'!.' 288 Transport Secretary-Treasurer .. . Security for Costs Trespass Trinity House. .......i.. • • 315 Seduction 289 Trouble ..* 31& Seigkiorial Rights ><•••• • • True Bill »... • « 364 TABLE OF REFERENCE TO INDEX. \yv s : : rAiiE. Tutor 316 Wages Tutor to a Substitution 318 Union-Jack 318 Usufruct Usufructuary 319 Usury Vendee 320 Verdict Verification op Writing 321 Vessel Vice-Admiral. Vice-Admiraltt Court 322 Vice Redhibitoire 325 Vis Major Voyage 32(j Warehouseman 330 Warranty Water 33'^ Water-course Water-power Way 333 Widow Will Witness 336 Wreck 338 Writ of Possession Writ of Summons Writs of Prerogative 339 Note of Judgments in Appeal re- ported since 1st January, 1864., 34^1 1^1^^ W ;' TABLE OF REFEUENCE TO APPENDIX. Absentee 345 ACTE sous SEING PRIvfi Adjudicataire Alimentary Pension Anticipation Appeal Appearance 346 Arbitres AssEMBLfiEs DE Parents BanalitI: 346 Bill of Exchange Bornage Cabaretiers Collocation Commission rogatoire CoMMUNAUTfi... Contempt Contract contrainte par corps......... contrat de concession CONTRAT EXfiCUTOIRE curateur Cure Damages DfiDATS DE COMPTE D gCOUVERT D£cret Default Delay D£LIVRANCE DE LEGS D^SAVEU DeSCENTE SUR LES LIEUX....... Distraction de frais Ditches DiXMES Donation DOUAIRE 347 1 i 348 348 349 PAGE. ENQufiTE ; 34J> Evidence Evocation Execution Exhibits Expertise Extra WORK Factures 350 Franc et quitte Gardien 350 Heir 350 IIuissier Injure 350 Inscription en faux Interdict. Intervention Inventory Jurisdiction 351 Lease 351 Lf.GITIME Lessor LoDS et Ventes 352 Marguilliers 352 Maritime Marriage Marriage Contract. Master and Servant Minor Mur Mitoten i I Notary 352 I Offres. *.*... 353 f ^PIPT "»? '^Pi i f « 1 366 TABLE OF REFERENCE TO APPENDIX. PAGE. Offres r£elles . . • • 353 Pain BfiNi 353 Paternit£ Penalty Prescription Procedure Procureur Promissory Note Ratification 354 Rebellion a Justice Recision. Renonciation Rente constitute Rente fonci^re Rentes Seigneuriales Reparations Reprise d'Instance Retrait Lignager PAOE. Saisie t 355 Security Seigniorial dues S£minaire de Qu£bec Separation de biens . , Separation de corps et de biens. . . SeRMENT DfiCISOIRE Surgeon.... Surveyor 356 Tailles 356 Testamentary Execution Tiers-Saisi Trespass Tutor Tutorship 357 Verification of Writing 357 Wages 357 Widow It i> >. j'j ■ -' -l-'.Jti I I CONCORDANCE !:< Abatis, 346. Absentee, 1, 5, 89, 128, 164, 209, 345. Absentee heir, 347. Absentee proprietors, 31. Abus, 352. Acceptance, 2, 44, 105, 144, 306. Acceptor, 44, 116. Accession, 2. Accident, 65, 68, 236. Account, 264, 299, 349, 352. Accountant, 126. Accroissement, 2. Acquereur, 145. Acquets, 73, 107. Act of Parliament, 130. Acte d'heriticr, 3, 107, 114. Acte de tutelle, 260, 318. Acte entre vifs, 2. Acte sous scing pri ,e, 3, 345. Action, 3, 10,241. Action en garantie, 3, 4, 84, 257, 260. Action ^ro socio f 213, 286. Actio pauliana, 10. Addition, 221. Adjuilicataire, 9, 11, 97, 132, 133, 190, 204, 233, 282, 299, 342, 345. Administrator o?nnium bonorufn, 14. Admiralty, 11, 134, 138, 186,204,210, 211,214,223,237,258,322. Admiralty Court, 11, 12,65,72, 91,318. Admission, 10, 13,30, 75, 116, 120, 127, 212, 227, 243. Adultery, 13, 14, 292. Admixture, 279. Advertisement, 1, 5, 27. Advocates, 14, 131, 232, 239, 353. Affidavit, 21, 29, 30, 37, 48, 72, 81, 97, 137, 153, 165, 166,208, 216,229,231, 250, 266, 270, 271, 272, 273, 274, 276, 278, 280, 309, 321, 343. Afternoon, 249. Agency, 293. Agent, 4, 14, 15, 43,78, 83, 115, 117, 131, 155, 191,220. Agreement, 3,6,76, 113, 134, 145, 157, 162, 168, 186, 193, 204, 221, 244, 255, 280,299,306,314. Ainesse v. Droit d''ainesse. Alien, 17. Aliments, 19. Alimentary allowance, 17, 18, 55, 345, 355. Alluvion, 2. Ambiguity in deeds, 162. Ameliorations v. Improvements. Amende, 355. Amendment, 85, 111, 112, 220, 221, 222, 235. American colonies, 301. American gold, 55. American Presbyterian Church, 260. Ameuhlissement, 18, 73, 107, 142. Amiables coiiqwsiteurs, 16, 28, 29. Answer, 223, 229. Anticipation, 345. Appeal, 3, 19, 62, 85, 86, 103, 110, 216, 264, 302, 321, 341, 345, 348. Appearance, 26, 222, 346. Appeles, 4, 109. Appendix, 27. Apprentice, 27. Arbitration, 15, 27, 154, 162, 346. Arbitrators, 27, 29, 125, 164, 345, 346. Architect, 29, 40, 46, 342, 343. Argumentative, 227. Arpentage, 346. Arpenteur, 346. Arrears, 18, 344. Arrears of alimentary pension, 18. Arrears of interest, 142, 160. Arrest, 79. Arson, 316. Articles, 187. Articulation of facts, 30, 23 1 . i .1 m I if m\ ^ Page 346 and lubsequent pages refer to the Appendix, which contains the cases reported ia P«rrault*$ Prtcidtntt de la Privosti et du ConitU Supiritur. W\ 368 CONCORD ANCE. it-?. il«" If '• Artisan, 70. Assault, 30,31, 80,94-, 131, 220,315, 325. Asscmhlee dc jyarcnts, 346. Assembly v. Legislative Assembly. Assessments, 31. Assessment roll, 63. Assessors, 32, 70. Assignation, 3-1-6, 353. Assignees, 2, 32,34., + !, 42,50, 98, 146, 159, 213,311., 34.4.. Assignment, 10, 32, 55, 98, 138, 34.4.. Assignor, 32, 33, 146. Assumpsit, 35, 121, 247, 253, 285. Atcrnwiemerit v. Comj)osition. Attachment, 37, 85, 9t), 112, 276, 280. Attachment of ships, 12, 235, 299. Attorney, 14, 20, 23, 24, 26, 37, 39, 83, 84, 85,86, 103, 104, 131, 151, 161, 205, 215,233, 235, 239, 268, 275, 287, 294, 297, 300, 353. Attorney General, 38, 177. Auction, 38. Auctioneer, 35, 38. Autcurs, 118,242,260. Aval, 39, Aveii, 13, 129. Avis dc 2^aycntSy 3 1 G . Avocat V. Advocate. Award, 27, 28, 1G4, 345, 346. Bail, 38, 39, IIG, 137,268. JBail bond, 39, 77, 102. Bai', 181. Boil dfermr, 240, 355. Bail emjylnjtcotique, 146, 181, 255. Bailjudiciaire, 356. Bailee, 56. BaUleitr de fo?ids, 33, 40, 141, 142, 145, 147, 148,2 11, 283, Bailifl; 35, 41, 59, 62, 79, 122, 123, 124, 132, 151,153,218,258,275,293,294, 317,339,350,353. Banalite, 289, 290, 346. Banal mill., 346. Ba)ic d^Eglise v, Pew. Bajic d''homicur, JSi-. Bank, 221. Bank of Montreal, 41, 318. Bankrupt, 147, 313. Bankruptcy, 41, 42. Bankruptcy Ord., 258. Bank Stock, 318. v Bankers, 247. Banns, 90. Baptisms, Certificate of, 1 17. I Baptisms, Registers of, 259, 260. ; Bar, 43. Bar, (Jin de non rccevoir,) 159,228,240. Barbadoes, 48. Barrister v. Advocate. Baf.urd adulterin, 335. Batanlisc, 96. Beaches, 42, 43, 266. Bed of River, 7. Benefice dH?ivcntaire, 351. Berth, 65, 69, 316. Bet, 43. Betterments v. Improvements. Biens meubles v. Moveables. Bicns noble -f 109. Bigamy, 13, 43. Bill f Exchange, 43, 116, 306,346. Bill of Lading, 44, 57, 85, 91, 99, 135, 158, 186,266,344. Bill of Tarticulurs, 44, 269. Billet de concession, 347. Boarding-house, 293. J5we,45, 221. Bond, 19, 20, 21, 45, 55, 253, 310. Bond in appeal, 253. Books of account, 45, 118, 122. Boom, 200, 267. Bomtigc, 7, 45, 334, 346. 13ottomry bond, 160. Boundaries, 7. Boundary posts, 356. Breach of ju-omise of marriage, 120. British subject, 17. i??etT^, 139, 241,245. Brevet d''inventio7i v. Letters Patent. Bribery, 199, 248. Broker, 46, 247. Brothel, 46, 177. Brother, 113. Builder, 40, 46, 344. Building Societies, 47, 83. Burials, Registers of, 259, 260. Burial service, 63. Burning land, 92. By-law, 31,47, 63, 65, 80, 81, 155, 198, 254,268,315,316. By-Roud, 48. Cabaretiers, 347. Cabin, 214. Canada Tenures Act, 108. Capias, 22, 39, 44, 48, 166, 195, 225, 314, 329. Capias ad satisfaciendum, 43, 56. Capitation tax, 304, 309. Cargo, 192. in' )i i\ ''i CONCORDANCE. 369 260. ■ Carriage-builder, 178. Carriers, 4.4, 57, 165,193. •9,228,240. 1 Cashier, 221. Catholic, Roman, 104, 268. Cause of action, 165. Caution, 203. Caution solidaire, 245, 246. Cedant, 33. Cens ct rentes, 265, 291 350, 355. Censitaire, 8, 43, 290, 291, 312, 346, 347. Certificate, 59, 153, 170, 211. H Certificate of bailiff, 35, 60. s. ^ Certificate of baptism, 236. Certificate of marriage, 236. Certificate of registrar, 87, 145, 177, 306,346. ■ 252, 257. , 91, 99, 135, ■ Certiorari, 23, 47, 60, 79, 80, 276, 341. Cession, 62. H^l Cessionnaire, 33, 42, 149, 305, 314, 320, 341. Check, 251. Children, 173. ' )3, 310. 1 Chirography creditor, 256. Choses 2>recieuses, 318. 122. ■ Church, 216. Churches, 60, 62, 80, 210. Church of England, 63. Church of Rome, 104. Church of Scotland, 260. Churchwarden v. Marguilliers. lage, 120. I Cicrgc, 353. Circuit Court, 16, 19, 20, 21, 23, 63, 121. [is Tatent. City Councillor, 63. 1 Civil death, 63, 215. 1 Civil law, 314. 1 Claire et liquide, 30, 74, 75. 1 Clergy lot, 170. 1 Clerical error, 222, 301. 1 Clerk, 118, 244. E60. Clerk of Appeals, 131. 1 Cloture d'embarras, 45. 1 Code Marine, 64. Kl, 155, 198, Codification Act, 259. 1 . Co-heir, 352. 1 Coins, 90. 1 Collateral security, 251, 252. 1 Collision, 11, 12, 64, 116, 167,180, 192, 1 205, 218, 252, 271, 302, 303, 304, 316, 1 324, 325. ■s, 195, 225, Collocation, 70, 233,253, 347. 1 Collusion, 8. ■s, 56. Colours, 323. 1 Commencement de preuve par ierit, 13, 1 88, 112, 120. H 24 Commercial cases, 346, 347. Commercial matt«'rs, 70. 112, 113, 168. Cominntory clause, 27, 70, 171, 217. Commissaire d la. saisic rcelle, 350. Commission 71. Commission rogaloirc, 72, 111, 116, 337, 347. Commissioner, 71. Commissioner's Court, 60, 72, 273. Commissioners of Public Works, 29, 172. Commissioners for building churches, 60. Coniiiiissions, 72. Comiaitment, 174. Common socage, 87, 107, 108, 110, 140. Communaute, 4, 18, 72, 107, 124, 143, 173, 189,291,347. Comparison of writing, 357. Compensation, 20, 30 73, 231, 241. Competency, 115. Complaifite, 75. Composite firm v. Partnership. Composition, 14, 34, 35, 118,307, 342. Compromis, 70, 71. Compromise, 313. Compte de tutelle, 299. Concession, 75. Concubine, 14. Condition, 57, 59, 154, 162. Condition precedent, 76. , Condition resolutnire, 36. Confession of judgment, 76, 88, 283. Confessions, 80, 128, 163, 348. Confirmation of title, 76. Conflicting decisions, 77. Conge dc defaut, 77. Conqucts, 336. Consent, 77, 78, 230, 277. Consideration, 33, 34, 77, 241,248,300. Consignee, 77, 156, 165, 193. Consignment, 306. Consignor, 44, 157. Consolato del mare, 77. Consolidated Statutes, 81. Consular jurisdiction, 113. Contempt, 37, 40, 60, 77, 85, 266, 315, 347. Contenance, 342. Contestation of declaration of TierS' Said, 309. Contestation of oppositions, 257. Contract, 35, 78, 133, 179, 187,225, 262, 347. Contract of sale, 279. IMS 370 CONCOn DANCE. I Contract olmarriiigo, v. Marriage con- tract. Contral dc concession, 34'7. Conlrat cxvcHtoire, IH7. Contractors, If), Hi, 78, 91, 113, 312. 258,307, 347. Contrainte jHxr corps, (», 13, ;")(!, 7S, 89, 93, 119, 13.'), 190, 256, 277, Uii, 350. Contumace, 348. Conviction, 13, (iO, 79. Co-partners v. Partners. Co-partnersliij), v. rurlnershi}). Copy ol'an e.'vrptian a /a forme, 224'. Copy, Registrar's, 145. Corporation, 4, 82, 225, 254, 263, 264. Corporation, Foreign, 83. Corporation of (iiiel)ec, 309. • Corporators, 4, 115. Co-proprietor, 7. Costs, 5, 19, 20, 24, 30, 34, 45, 46, 62, 65, 79, 81, 83, 89, 103, 115, 125, 133, 134, 144, 153. 185, 187, 205, 210, 219,220,222.231,232, 244,248, 262, 266, 270, 297, 307, 312,321, 326, 347, 353. Costs of contestation, 309. Costs of distribution, 282. Costs of sale, 282. Coupe dc hois, 147, 295. Coutume de Paris, 238, 239. '^'ourt houses, v. Tax for. Court-martial, 63, 137. Court of Appeal, 110. Courts of Sessions, 12,180. Cousin-german, 114. Creditor, 70. Crew, 66, 69, 116,2.58. Crimes and misdemeanors, 77. Criminal information, 87. Criminal law, 87. Crown, 9, 17, 42, 43, 75, 82, 132, 160, 220, 237, 242, 26 1, 266, 267, 287. Cross, Signature by, 39, 76, 88, 1 17, 120, 245, 246. Cullers, 88. Cumulation of actions, 89. Curator, 1, 5, 89, 117, 159, 289, 347. Cure, 90, 104, 127, 152, 185, 217, 348. Currency, 90. Customary dower, 3, 73. Custom of trade, 90. Custom of tribe, 151. Customs duties, 91. Cutting wood, 356. \m\\ Dam, 267, 333. Daninocs, 30, 43, 65, 66, 68,69, 70, 71, 73,74,79,83,84, 90, 91, 101, 115, 116, 122, 132, 138, 160,168, 175,180, 185, 188, 192, 199,200,201,202,213, 214, 217, 219, 220, 226,227, 228,238, 239, 244, 'r?A, 256, 259, 267, 277, 281, 284, 300, 302, 320, 32 1, 336, 338, 342, 348,351. Damages, stipulated, 170. Date, 150, 241. Dati) in solutnm, 181. Day, 69. Days of grace, 44. Death, 193,215. Debentures, 310. Debentures, Fire, 261. Dchitcnrs solidairts, 96. Dihats dc compte, 5, 848. Dcchiance, ^^. Declicance d\isiifndt, 318. Declaration, 96", 111, 221, 228. Declaration dc paterniUy 114, 168, 228, 289, 353, 354. Declaration of Tiers-Saisi, 289. Declinatory exception, 234. Dcamjiture, 10, 42, 96, 226, 250, 278, 297,318,349. Deconvert, 348. Decrct, 97, 133, 175, 204, 256, 262, 282, 312, 348. Deeds, 145, 162, 202. Default, 27, 97, 164, 223, 231, 309,348. Defaut dc conlenance, 9, 11, 163. Defense an fonds en droit v. Demurrer. Defense aufon^ls en fait, 227. Degiiapissement, 98. DUaisscment, 19, 98. Delay, 203, 250, 257, 311, 345, 348. Delay, v. Rcpit. Delihere, 229. Delirium tremens, 188. Delit, 285. Delivery, 59, 98, 106, 236, 279, 280, 281, 312. Delivrancc de legs, 100,334. Dcmanda^ 74. Demand of plea, 288. Dementia, 349. Demurrage, 101. Demurrer, 4, 19,20, 23,26,112,209, 221, 226, 231, 232,239, 248,254,311, 336. Deniers d'entree, 181. Denonciation de nouvel oeuvre, 341. CONCORDANCE. 371 ,69, 70,71, , 101, n^, iS, 175,180, 01,202,213, 27,228,238, 67,277,281, 36,338,342, 028 'ri4.,'l68, 228, d, 289. 34, ; 226,250,278, ,256,262,282, 1,231,309,348. 11,163. ^t V. Demurrer. 227. tl, 345, 348. 236, 279, 280, 1334. 23,26,112,209, {9,248,254,311, \(BUvre, 341. Dephicrmrnt, 19(i, 3l;i. Depusitiuii. 10', 111, 112,119, 1()1,337. Dcjiositor, 118, 28(j. Deputy, If). Dcpufv Slieriir, 102. Drsdvcu,^!, 102,348. Dcscc.te sin- I .v licKX, 34S. Descrtiuii, .')2f). Desistciucnt iViippcl^ 316. Ilrs,iilxiii(.n de tiifcllr, 3. ncsuefiulo, 102,315. Dctcntnir, 24 !•. Director, 127. Di.sbiir.semciils by Sheriff", 37. Discretion, 102. Discu.ssion, 1!t, 102, 141,223,332. Dissentients non-resident, 286. Dissentinir Ministi^r, 259. Disrutinii-, 102. Distract inn dc f'rais, 84, 85, 102, 348. Distribution, '103, llil., 195,209,233, 253,270. Disuse, V. Non-user. Ditch, 349. Dixnics,H,\Oi, 185,319. Dividends, 3 IS. Divine iService, 347. Divisibility, 349. Dol, 10, 242,310, 313. Doinai7ie direct, \1 2. DoriHiine ^ei'^ncurial^ 104. Dotnaine utile, 172. Domicile, 1,2, 20, 27. 86, 104, 132, 163, 189, 190,221,249,251,277,291,293, 294, 316. Domicile, last, 353. Domicile matrinionzal, 14, 72, 283. Dominus litis, 34, 37, 235. Donataire v. Donee. Donataire mutuel/e, 357. Donation, 2, 10, 18, 34, 71, 105, 144, 147, 159, 181, 232,245,261, 262,283, 343, 349. Donee, 146, 351. Doyineiir d^tval, 39, 249. Dormant partner, 213. Dot,, 107. ' Douaire, 3, 18, 107, 110, 178, 189, 191, 242, 333, 349. Douaire, a titre de, 1,219. Double Insurance, 155. Drawer, 44, 346. Dressing-case, 58. Drink, 139. Droit dhiinesse, 108. Droit d'Jiabitation, 105. 24* I Droits honnrifKiue^, 109, 216. Droit dc jhcIic, 43. I Droit dc rctcn'iun, v. Lien. Drnnkrnncss, 105, 186. Duplicate, 3. Easter, 104. JOocU'sinstictil decree, (iO. Eight days, 27S, 310, 311, 341. Election, 43, 109. Election agent, 110. Election of domicile, 123, 153. Emplnjteose, 1 10. En demcure, 210. Endorsation, 44, 245. Endorsulion in blank, 247. Endorser, 44, 74, 115, 116, 118, 121, 1.56,221,246,250,346. Eiiduits, 347. ! England, 48,314. English admiralty law, 64, i English civil laws, 7, 102, 110. I English hinguiige, 1 10, 218. I English rules of evidence, 70, 1 13. \Eiiauctc,U, HI, 115, 161, 209, 219 i 231,33S, 349. En'rrprcnci/r, 226. l']nvelope, 293. Envoi en. jwssession, 89. Erasures, 112, 152,226,272. Errcur de droit, 112,291, 313. Erreiir sur Ic fait, 313. Error, 4, 5, m, 103, 1 12, 118, 163, 204, 220,221,235,264. Evidence, 13,20,22, 28, 44, 72, 112, 134, 145, 161, 169,173,181,200,234, 242,259,263,321, 337, 338, 342,349. Evocation, 86, 121, 346, 349. Exception, 112. Exception d la forme, 7, 22, 23, 38, 53, 8.5,89,97, 150, 152, 221, 223, 224, 225, 2^2, 263, 266, 271, 275, 278, 343. Exception declinatoire, 223. Exception dilatoirc, 85, 223. Exception peremjHoire, 194, 2.57. Exclusion of community, 291. Execution, 79, 85, 86, 121, 122, 195. 213, 258, 309, 337, 349. Executive Council, 193. Executor, 18, 74, 102, 125, 144,292 309, 336. Exhibit, 125, 269, 349. Exhibition dc titres, 125. Ex parte, 27, 125, 210, 230. Expenses, 128. •. ! .' : \ 372 CONCORDANCK. ' i' 1 ' Wl' ' u f- ■ 4|., . ,. ■:-l ■ : f 1^^ Labo Expertise, 40, 125, 150, 34.3, 349. Experts, 20, I'if), 15}., 34.3. Expropriation, 126. Extra pilotiiiro, 218, 284-, 323. Extra work, 349. Fnhricien.1, 339. Fid>riqice, 115, 127, 158, 184, 217, 338. Fact, 227. Factum, 24, 127. Foctures, 350. Fiiitset articles, \2, 9^, llG, 120, 127, 128, 161,212,239,248,320. False imprisonment, 30, 93, 227, 238, 300,315,325. Fnlse pretences, 129. Farmer, 238. Father, 1 14, 289. Faux, 114. Fees, 37, 61,79, 83, 84, 85, 110, 129, 162, 202, 232, 298, 302, 347. Felony, 30, 40, 220, 262. Fence, 45, 184. Fences and ditches, 238, 347, 348. Fence of [)ickcts, 352. Ferry, 213. Fiat, 37, 51. Fi leicnm mis , 305. Firlr/iisscur, 132, 139. Firri facias, 122,296. Fi^iiu-es, 33, .5.5, 221, 268, 294. Final jiKlgnumt, .53, 263, 341. Fin dc no/i-reccvoir, 14. Fire debentures v. Debentures. Fire engine, 197. Firm v. Partnership. Fisc, 132. Fishery, 75. Fishing, 43. Floating lights, 65, 132. Flogging, 132. Flottable, 200. Folle enchire, 132, 190, 343, 345. Forcible entry and detainer, 151. Foreclosure, 111, 112, 230, 288, 345. Foreign country, 48, 83, 114. Foreign insurance company, 47, 293. Foreign judgment, 133. Foreign law, 133. Foreign plaintiff, 289, Foreign seamen, 328. Foreign snips, 12, 134. Foreign state, 135, 180. Forfeiture, 12, 134. Forfeiture of bail, 40. Forfeiture and penalties, 167, 322. F(»rgery, 63, 250, 321. Forma 2)au2>eris, 234, 289. Forty shillings sterling, 321. Pour days, 288. Fournir rt fairr vnloir, 98. Franc ct quilte, 134, 350. France, 314. Fraud, 4, 8, 10, .33, 34, 42, 74, 91, 134, 147, 1.5H, 161. 182, 191, 202, 226, 248, 258, 261, 28.5, 299, 310, 313, 317. Fraudulent sale, 10. Free and common socage, 7, 8, 292. Freight, 44, 59, 73, 135, 325, 326. Fugitives, 135. Funeral service, 22. Furniture, 177. Gage, 34. Gages V. Wages. (Gambling, 135, 247. Game laws, 135. Garant, 98, 176. Garant formel, 84, 348. Garant'ie, 3, 4, 84, 257, 260, 331. Garantie (Veviction, 332. Gardie?/. 13, 119, 135, 205, 2:?3, 272, 277, 280, 296, 3.50. Garnishee v. Tiers-saisi, General counts, 241. Genenil issue, 13, 226, 227, 289. Goat, 348. Goods sold avec terme, 279, 280. Goods sold sans terme, 279. Government otticer, 137. Governor, 137, 197. Grain, 77. Grand jury, 40. Grave-yard, 184. Grosse, 347. Grosses reparations, 319. Habeas corpus, 7&, 137, 193, 266. Hid)itants, 346. Ilccres necessarius, 192, 193. Half-pay, 138. Harbour Commissioners, 7, 43. Harbour of Quebec, 11, 12, 138. Harbour Master, 69, 138, 316. Hd''it Justicier, 109, 216. He s, 4, 6, 7, 14, 72, 74, 89, 106, 109, 117, 138, 143,236,286, 305,333,334-, 347, 350. High seas, 11,214,215. Hire, 131, 138, 275. Holder, 44. Holograph will, 333. CONCORDANCE. 373 74, 91, 134, 2, 226, 248, 113,317. 1, 8, 292. f), 326. .), 331. Of), 233, 272, ', 289. I, 280. I, 266. r,43. >, 138. 116. 89, 106,109, 305,333,334-, Homologation, 103, 270, 316, 345. Honneurs dans Vculise, 138. Horse, 205. Horse racinjf, 43. Hdtdlicr, 113, 139. House of Assembly v. Legislative As- sembly. House-holder, 63. Huissier v. Bailiff. Husband and wife, 78, 129, 132, 135, 220,246,263,291. Hypothecary action, 6, 22. 98, 139,218, 219,221,242,243,244,264,341,353. Hypothecary claim, 124,28!. Hypothique, 2, 40, 42, 46, 134, 139, 228, 256,257,260,261,331. Hypothetical plea, 227. Illegal arrest, 74, 93. Immenhles fictifs, 318. Immoveable property, 6, 79, 98, 143, 146, 181, 194,209,219,233, 260,281, 282, 283, 305, 312, 331, 349. Impotency, 149. Imi)rovcments, 149. Impntiition, 75, 150, 200. Incidental demand, 150. Incumbrances on projjerty, 150. Indian customary law, 21. Indians, 21, 151. Indictment, 13,43,131,151,204. Indication de jtaiement, 75. Indivisy 7, 262, 344, 349. Information, 80. Informer, 122. Ingratitude, 105. Initnitie caj)itale, 259. Injure, 350. Innkeeper v. HiUellier. Inopes lonsilii, 186. hisaisissahf.cs, 45, 96, 122, 307. Insanity, 151. Inscription, 128,231. Inscription de faux, 114, 151,222, 350. Insinuation, 106, 261,334. Insolveiicv, 33, 42, 72, 140, 244, 280, 310. Insolvent, 33, 34,35,39,74,115, 132, 203, 264,279, 280,281,285, Inspector of revenue, 82. Inspector of roads, 287, 301. iwsiawc^, 213, 233,293. Instituteurs, 153. Insurance, 153, 168. 123, 242, 333, 260, 264, 122, 309. Insurance company, 115, 117, Insurer, 220. Intent, 300. Interdict, 159, 350. Interest, 6, 116, 143, 145, 150,156,160, 204,241,257,280,245. Interlocutory judgment, 2, 5, 20, 22, 79, 89, 138, 161, 163, 264, 346, 347, 349, 355. Interpretation of deeds, 162. Interruption of prescription, 241, 243. Intervention, 32, 177, 228, 232, 336, 350. Intervening party, 289. Inventory, 5, 162, 189, 202, 219, 258, 286,317,350,351,357. I. O. U., 245. Jewellery, 58, 19*1.. Joinder in issue, 232. .loint adventure, 213. Joint creditors, 162. Joint stock company, 228, 250. Jouissance, 343. Judjre, 162, 230, 235, 259, 272, 286, 306, 307, 309, 315, 345. Judge of sessions, 81. Judgment, 77, 79, 163, 191, 213. Judgment ?iofi obstofite veredicto, 321, 331. Judicial sale, 10, 77, 86, 164, 236, 298. Jugcment comninn, 164. Jurat, 271, 343. .Jurisdiction, 1, 11, 12,20,22, 61, 154, 164, 176, 259, 306, 315, 323, 351. Jurors, 167. Jury, 3, 39, 130, 168, 177, 320, 321. Jury trial, 22, 168. Justice of the peace, 13, 80, 169, 191, 202, 219, 238, 26I,32;-{. Justilicalion, 170, 227. Kerr, .ludge, 27. King's Attorney, 350. King's IJi.uch, 12. King in Council, 130, 162. Lands, 123, 170. Landsman, 170. Larboard, 170. Laval University, 304. Law, 171,227. Law Ofiieers, 253, 263. Law-Student, 304. Laws of Canada, 17. ii 371 CONCORDANCE. !,' t I ■h.r ,(: LawsorEiiglaiicl, 7, 8, 17, 125, 130, '229, 31.2. Laws urJ''niiicc, 7, S, 112, 113. Louse, 171. 2US, 30'), 3()(>, 313, 3f>l. Lugucy, 3, 82, 100, W), 172,331, 336. Legatee, 3, IH, 100, 1 lf>, U-l, 1 If), 173, 211,233, 2+5, 2():', 333, 33G. Legatee, Universiil, 334-. Legislative Assembly, 17-1-. Legislative Council, 174-. Legithnc, 1 74-, 3.^)1. Lesion, 171. Lessor and Lessee, 165, 262, 305, 308, 3-11, 351. Lessor and Lessee's Act, 22, 23, 174, 218. Letters of Administration, 335. Letters of llatifieatiun, 228. Letters Patent, 8, 146, 177, 261, 287. Lcttrc Missive, 283. Lex loci contractus, 328. Libel, 174., 178. License, 81,82, 178. Licitatiou, 1 1, 178, 312, 343. Lien, 59, 136, 1.50, 175, 178, 193, 207, 217,285, 296, .329, 330. Life-Rent, 14.7, 180, 181, 189,211. Lights (on ships) 65, 69, 180, 324-. Lights {vucs droites) 180. Limitations v. Prescriptions. Litispendence, 180, 222, 228. Z.ivre terrier, 42. Lods et voltes, 72, 105, 150, 181, 183, 281,352,355. Log-book, 326. Look out, 69, 182, 324. Lord Mayor of London, 237. Lost, 182. Lottery, 182. Lottery tickets, 88. L'tijeri; 1S2. Luggage, 5S. IMachine, 1S2. IMiiSistrate, .37, 81, 82, 94, 154. Mail ciirriers, 312. Mainmorte, 182. JMalice, 93, 167. iMiilicictiis arrest, 165, 184. Will versatioii, 265. Mandamus, 22, 29, 110, 184, 198. jMandat, 215, 254. l\hmdutaire, 1, 5, 78, 184, 297. INIanure, lf;5. Narcluinde 2ntbliqiie, 73, 190, 246. Marche ouvert, iH2. ■ IVIiirginn] uotos, 101,' 1 12, 226. \Mar<:Hifllrr, 127, ir»S. 1S|., 185,352. Marine iiisniMncc, 157, 185. : Miiriners, 186, 217. Mariner's coiidMOt, 187. Maritime interest, ItiO. I Miiritinie li(>n, 179. 193. Maritime law, 192. 352. Mark v. Cross. Marques, 199. Marriage, 149, 187, 263, 352. Marringe, Ci-rtilicate of, 117. Marriii.Te contract, 18, 34. 72, 73, 105, ! 107,140, 142, 143, 159, 291, .349, 352. ; Marriages, Re^/istcrs of. 259, 260. Mnrried woman, 73, 7.S. 189, 247, 283, 291, 343. Marshal of Adminilty Ciiirt. 37. Master ami scrvunt, 191, 352. Master of ship, II, 30,44,65, 69, 77, 8.5, 91, 92, 94, 95, 100, IK), 179, 18C, 191, 193, 214, 2.34, 237,259, 266. 322, 323, 325, 327. Mate, 192,259, 285. Material men, 12, 193. Matrimonial rights, 13, 14. Mayor and Councillors of the City ol Quebec, 309. Measurement, 193,281. Measure of damages, 82. Members of the Legislature, 193. Memorandum in writing, 113, 127. Memorial, 142, 145. Menuisier, 226. Medical attemlance, 241. Mediterranean States, 214. Merchant. 247. Merchant's Clerk, 179. Merchant Shipping Act 1854, 67, 169, 187, 193, 218, "271, 302, 303,323, 327, 329. Merchant Shipjiing Act Amendment Act, 302. Merchant Shipping Repeal Act, 218, 302. Merger, 194. Merits, 2:6, 231. Military equipment, 307. Militia pensions, 32. Mill, 172, 200,289, 290. Mill-dam, 194. Minor, 3, 5, 95, 105, 107, 147,173, 174, 187, 191, i94, 239, 260, 264, 289, 316,317,318,352,356. Minority 90, 195, 242. CONCORDANCE. 375 if), 3;V2. !, -/3, I0f>, 291, :h9, ,260. f>, 24.7, 283, :. 37. .2. ijf), 69, 77, C, 179, 186, f,2:VJ, 266. the City ol 193. lis, 127. U, 67, 169, I, 303,323, imendnient Act, 218, r, 173, 174, 264., 289, Mimito, 28, 11}., 127, 18 i, 195,201, 202, 352. Miscomluct, 195. • MisdenuMUoiiis, 77. MisclcsiTiptiuii, 220, 225, 229. Misiliri'L-tion. 200. Misleasimco, 256. MisiionuT, 195, 225, Missionary, 61, 9'>. Mitoifcn, 4, 199. Modus, 154. Money, 199, 228. Moneys, 195, 233, 268,276. Mooring, 195. Mortgage v. Iliipotheque. Mortgage of i>\u\u 330. Mortuus cirUiter, 63. Motion, 5,53, 136, 166, 190, 196,200, 201, 203, 210, 215, 223, 225, 227, 228,230, 231, 265, 2o9, 271, 272. 274, 276, 278, 280, 288, 307.321, 331, 337. Mouture, 290. Moveables, 122, 123, 164, 177, 195, 196, 209, 236. 237, 240, 244,245, 308, 349. Moveable estate, 17. Municipal Act, 31, 196. Municipal corporation, 286, 287, 294. Municipal Councillors, 197, 2.54. Municipal Councils, 31, 197, 268, 287. Municipal debentures, 197. Municipal elections, 198. Municipal rates, 219, 308. Mui- mitoyen, 4, 45, 199, 352. Name, christian, 261. - Navigable river, 200, 295, 341. Navigable rivers, non- 267. Navigation, dangers of, 58. Necessaries, 12, 189, 194,246. Negatoire, action, 31, 219, 295. Negligence, 44, 57, 65, 68, 69, 93, 94, 95, 139, 190, 191, 200, 228, 238, 255, 320. Negligence, gross, 65, 68. Negotiable, 246. Neighbour, 199. New conclusions, 200. New trial, 84, 169, 177, 200, 321. Newspaper, 20 1 . Night, 69, 292, 303. Night, dark, 66,315. Non-user, 66, 102, 171, 301, 315. JSotables, 185, 339. Notarial deed, 190, 313. Nuhiry, 2, 2!s, 12, 114, 127, 152, 190, 195, 201, 2 IS, 297, 335, MM, 352. Notary and two witnesses. 'MH. Notice, 53, 155,202. Notice of action, 202, 297. Notice of appeal. 111, 23;{. Notice ol" inscription, 112. \otice of motion, 7S, 20;j, 214, 233. Notice of protest, 39, 41-, 215, 248, 249, 2.50. Notice of security in a|»p(>al, 24, 25. Novation, 36, 1 18. 20.'}, 202, 307. Nuisance, 204, 267, 341. Nullite de dtcrrt, 97. T^nflitv dr vcntc, 9, 204, 282. Nullite idative, 181. Nullity, 248, 268, 299, 343. Nullity of deed, 228. Number, 145, 204, 209. Obligation, 2, 161,204, Occupant, 7. Olfences, 77, 79, 80, 81, 82, 204. Office, 204. j Off'res, 3.53. OJf'res rvelles, 205, 353. Omis 2*robundi, 53, 58, 94, 119, 205. Opposant, 119, .349. Opposition, 9, 10, 11, 24, 77, 87, 124, 204, 205, 232, 233,257, 289, 305, 346, 353. Opposition afin d\innuf.ler, 10, 149,164, 205,206,207,209,291. Opposition afin de charge, 333. Opposition afiti de conservcr, 103, 256, 262, 314. Opposition afin de distndrc, 206, 210. Opposition, ifrivoloiis, 205. Opjwsition to marriage, 352. Option, 3, 210,262. Order, 81,210. Orders in comicil, 210, 308. Oidonnance de commerce, 346. Ou trier, 353. Over-bidding, 76, 257. ^ Owner, 64, 70, 210, 218, 236, 237, 242, 313,321, 330. Facte commisaoi'-e, 211. Pa/rtitiwi, 138, 139, 353. Paper machine, 196. Parents, 346. Parishoner, 75, 104, 185, 338, 339. Parliament, 211. Partage, 4, 7, 18, 178, 189, 211, 219, 343, 357. 376 CONCORDANCE. i I f' ; ■ ■■:< r i.. iUtki ll. ;' . rurtncraliii., 6, 13, 35, 37, 75, 76,78, 92,104., 116, 165,211,212,252,278, 286 293. Partners, i, 5, 13, 82, 104, 119, 162, 211,213,278,283,321. Passenger, 11,30,31,95, 116, 194,214, 255, 323. Pasturagp, 295. j Patent, 221. Paternite, 3, 168, 214-, 353. Patron, 217. | Putro/mc, 214'. Payee, 34'6. Pavment, 224, 227, 239, 24 1, 242, 215. Peicrins, 139. Penalty, 12, 16, 27, 64. 78, 80, 86, 88, 134,135,214,268,323,353. ^ Penitentiary, 63. ■ Peremption (Vinstnnce, 37, 86, 214. Pcriciilum rci vrudiUe, 98. I Perishable elleds, 216. I Perjury, 40, 216. ' | Personal action, 243. j Personal wronfjs, 219. Petition. 11,19, 23, 48, 53, 233. I Petition of rights, 242. | Petitory action, 4, 6,7,8, 118, 174,219, 225,236, 237, 240,242,312,338, 344. ' Pew, 75, 138, 216. Physician, 40, 240. Pianoforte, 341. Pilot, 12, 64, 65, 116, 210, 217, 259, 284. Pilot Acts, 64, 218, 300. Pilotage, 11, 116, 166, 179, 192, 31.5, 323. Plea, 74, 77, 224, 226, 227, 228, 230, 241,250,257. Pleading and Practice, 10, 13, 218, 350. Policy of insurance, 29, 117, 154, 155, 157, 160, 168, 186, 220, 292, 316. Port, 236. Possession, 6, 12, 43,75, 98,217,236, 260,261,281, 312. Possessory action, 7, 8, 9, 43, 338, 348. Posthumous child, 3"J3. PonndiiTC, 29S. Power of attorney, 14, 117, 237, 283. Preciimt, 349. Preliminary exce})tion, 24, 223, 224, '>26 Premier saisissant, 355. Premium, 156. Prerogative, 237. Prerogative writ, 262. Prescription, 10, 14, 41, 95, 104, 119, 139, 163, 180, 231, 238, 260, 353. President and Directors of a Savings' liank, 285. Presumption, 120, 239. Preuvc V. KvidtMice. Prcuvp avant faire drmt^ 243. Prevosfe, 352.' Priest, 75. Principal and agent, 4, 14, 15, 78, 115, 186. Prisoner, 263, 298. Privilege, 175, 177,244,261,265,299. I'rivilegt'd communication, 244, 300. Privity of contract, 78, 174, 244. Privy council, 24,25, 26, 162, 254, 302, 307. Privy seal, 177. iV/> f/f rente, 9, 39, 75, 98, 148, 163, 233,257,282,291. Prizes, 16(i. Prohiite, 133. I(i6, 335. Proccdviithh 61 . Procedure, 353. Pimh-ifrhal, 80, 122, 124,207,301. Proclamation of 1763, 110. Proctor, 235, 244, 258. Procurcur v. Attorney. Pforiirenr J'abricien ,185. Prohibition, 12, 24.5. Prohibition to alienate, 245. Promcsse (Ic vente, 147,245,281. Promissory note, 14, 39, 43, 50, .56, 74, 77, 92, 114, 115, 121, 125, 156, 161, 162, 189, 203, 204, 22 1 , 229, 240, 241, 245, 285, 319, 342, 345, 350, 353. Proof V. Evidence. Propre, 18, 19, 73, 292. Prorogation, 174. Protest, 44, 57, 1 18, 250, 2.52, 283. Protestant, 268. Protestant Churches or Congregations, 260. Prothonotary, 21, 21., 153, 166, 210, 212,230, 252,272,288,310. Protli(molary\soiiice, 2, 6, 98, 128, 211, 222, 228. Provincial Secretary, 301. Provocation, 30. Proxies, 253. Publication, 334. Public bridge, 80. Public olficer, 253, 259. Puhlici et divini' juris, 75. Purchaser, 98, 281. Purser, 241. CONCORDANCE. 377 104, 119, 0, 353. i Savings' 15,78,115, 1,265,299. 2 1.+, 300. 04.4.. 12' 254., 302, 8, 148, 163, ,207,301. .,281. 13, 50, 56, 74, 25, 156, 161, ►29,240,241, |350, 353. 52,283. Lngregations, [, 166, 210, 10. 198,128,211, Qualification, 211. Quantum mtruit, 14, 29, 32, 73, 130, 253, 284, 308, 332, 337. Quanto mi»(n-is, 9, 320. Quartcr-tleck,214. Quarter sessions, 60, 81, 82, 180. Quebec, 12, 64, 253. Quebec act, 110,334. Quebec (Jazetlc, 298. Queen's counsel, 177. Queen's Bench, 20, 23* 38, 244. Quctciisc, 353. Qito tvarrantOf 127, 254, 264. K'liliatiou, 149. Kailwoy cases, 254. Railway comnany, 314. Railway concluctor, 31. Ratification of donation, 105. RatiliciUion of title, 3, 9, 87, 216, 256, 257, 288. Realisation, IS, 73. Rebellion d justice, 56, 258. Receipt, 203. Receipt in full, 258. Receiver (tcneral, 72. iJar/, 258, 351. Recision, 10, 290, 317. Recdlcment, 122,207. Recomiaissancc, 312. Recoupement, 259. Recognizance, 258. Record, 215. Recorder, 80, 259. Uccors, 123, 279. Recusation, 259. Reddiiion de com])te, 4, 163, 317. Redhihitoire, 9. Reformation de roniptc, 4. Registers, 259,260. Registrar, 87, 117, 252, 257, 260. Registration, 8, 75, 145, 260. Registry oflieo, 211. Registry ordinnncc, 140. Registry of vessels, 261. Re-heanng, 37. Rii)it(\i;7andf, 261. Relations, 114-. Relational! i[i. 261. Release, 65, 1 15, 235, 262, 321. Religious congregation, 262. Remvre, 262. Remise, 262. Remploi, 349. Rent, 46, 74, 85, 95, 171, 174, 175, 177, 182, 203, 240, 277, 306, 341, 344, 351. Rent of farm, 355. Rente constituee, 140, 148, 243, 262, 312. Rente viagire, 105, 106, 121, 144,283. Renunciation, 3, 262, 291, 306. Rejrit, 348. Repleader, 222. Replication, 223, 229, 230. Reply, 263. Rrponse. en droit, 229. Reporters' tax, 14. Report ol'disiiibiition v. Distribution. Re]mse d'instance. 111, 2()3, 292. 336- Rejrrises nwtrimonialc^, 18, 190, 263, oqo Rpf/ui'tc rivilr, 263. Re(jnete lihclUe, 184, 263. Resiliation, 9,78,351. Res judiaita, 5, 119, 264. Resolutory clause, 9, 2S3. Respect A la Justice v. Contempt. Retrait cnnvcntionncl, 265. Retrait liiinagrr, 265. Retrocession , 211. Return, 40, 128, 132, 222, 228. Return-day, 265. Returning officer, 265. Revendication, 44, 89, 114, 168, 261, 266,297,341. Revenue, 42. Revenue collector, 81. Revocatory action, 10, 148, 164. Riparian proprietor, 2, 7, 266, 295. Risk, 281. * Rivers, 267. River St. Lawrence, 43, 266. 284, 303, 315, 323. Road, 196,268,346. Road ollicers, 1 96, 202, 268. Road tax, 268. Role d'cnqiutc, I2S, 230, 232. R()lr dc droit, 2^1 1 . lloiuaii Ciitliolic, 104, 268. Rule, 12s. l.!2, 205. 223, 268, ;U3. Rule msi, 78, 133, 263. Rule ol pructice, 20,38,44, 103,111, 125, 12!t. liin, 210, 233, 268, 292, 294, 337. Rule of the sen, 67.270. Rules and ri'giiliitious, 69, 271. Saisi, 98. Saisic, 9, 355. Saisie-Arrrt, 1, 2, 20, 44, 93, 121, 122, 124, 166, 233, 271, 345. Saisic- Ga^crie, 277, 305, 378 CONCORDANCE. ifi ^: Mi! ^!^VI i ' * Saisir-Gui^eric jnif droit dc suite , 277, 278. Saisie-Rcvcndicntion, 99, '233, 278. Saisi?ir,2Hl. Salary, 6, 74., 122, loli, 2S0, 311. Sale, 6, 8, 7.^, 117, 1()2, KU, 171, 281. Sale of inimoveiible.s, 9. Sale of sliips, 38, 77, 179, 28+. Sale, memoraiidiim of, 1 17. Sale omnium ho)iorum, 34-, 281. Sale super non domuo, 11. Salt, ,57. Salvage, 11, 12, 166, 187,218,235,252, 284. 323. Salvors, 179, 218, 243, 284, 285. Sample, 283. Savings Bank, 285. Scelle, 286. School acts, 286. Schools, elementary, 104. School commissioners, 286, Schoolmasters, 286. School municipality, 287. Scire facias, 177, 287. Scotland, 48, 314.. Seal, 61,83, 117,286. Seamen, 186, 258, 284, 285, 338. Seamen's wages v. Wages. Season of navigation, 287. Second marriage, 356. Secretary-Treasurer, 2, 4, 6, 287. Security, 77, 306, 355, 357. Security for costs, 209, 223, 288. Seduction, 289, 318. Seignior, 10, 75, 138,217,267,290,312, 346, 3.52. Seigniorial Act 1854, 125. Seigniorial commissioners, 72. Seigniorial dues, 181,355. Seigniorial rights, 145,289. Sei/in. 6, 312. Self-doloiu-e, 30. Semi-?>aiifraqiH/n.^'2T. S&minaife de Quebec, 355. Sentence arhltnile, 299. Separation dc biens, 12, 107, 129, 188, ' 291, 355. Sqtaration dc corps et dc bicm, 13, 17, 73, 292, 355. Sequestrc, 2i>2. Senncnt d'ojjice, 345. Sermcnt di-cisoire, 45, 58, 292, 355. Servant's \v'ages, 238, Service 5, 104, 128,255, 269, 275, 292. Servitude, 140, 148, 295, 333. Servitude reellc, 295, 333. Sessions, (reiieral, of tlu^ Peace, 259. Set-ofi; 39, 217, 227, 22S, 259. Sevices, 221. Shareholders, 228, 259, 296. Shares, 115, 122,3)4,318. Sheriff; 6, 9, 11, 37, 39, 55, 97, 102, 121, 122, 123, 124, 136, 140, 153, 172, 180, 205, 216,218,222, 233,237,265, 271, 272, 275, 282, 288, 296, 298. Sherifi's office, 280. Sheriff's title, 9, 11,299. Sherilf's sale, 290. Ship, 122, 182, 210, 259, 299, 321, 322. Ship at anchor, 243, 324. Ship's articles, 328, 329. Shipper, 237, 266. Signature, 24, 250, 32 1 , 333. ' Signification, 2, 35, 50,299,314,341, 344. Simulation, 34, 300. Slander, 119, 219, 227, 239, 242,244, 293, 300. Solatium, 95. Solicitor General, 38, 177. Solidarity, 332, 342, 344. Sod, 114. Soulte, 181. Sous ordre, 208. Sous-voijer, 301. Sous seing prive, 117. South Sea, 301. Sovereign, 287. Spanish dollar, 90. Special answer, 229. Special bail, 39, 55, 258. Special damage, 315. Special jury, 321. Special tax, 31. Special verdict, 320. Spring, 326. Squatter, 150, 178,236,312, State paper, 244, 301. Status, 18S, 317. Statute, .301. Statut(> labour, 301. Statute of frauds, 112, 113, 127, 334. Statute of limitations, 241, 302. Statutes, 302. Stays, in, 66, 270. Steamer, 66, 67, 68, 133, 241, 261, 302, 315, 330. , Steam navigation act, 67, 303. Steam-tugs, 67, 303. Steward, 304. Stockholder, 47, 255. Stoppage ifi transittc, 59. CONCORDANCE. 379 :e, 259. :, 97, 102, , 153,172, 1,237,265, 6, 298. 1,321,322. 9,3U,3il, 9, 242, 2U, 127, 334. 1302. [1,261,302, 03. Slolon gooils, 1()8. Stmloiit, 30|.. St. Lawrence, 12, Gl, St. Michel, 10-1.. Snhjvnia, 301', 337. fSubrogfitimi, 301', 30G. Subrogate tutor, 317, 350, 351. Substitution, 2, 4, 17, 304, 343. Substitution of attorney, 37, 263. Sub-tenant, 171,305. Succession, 3, 17, 258, 262, 305, 306. Suggestion of death, 37. Summer, 287. Summons, SI. Sunday, 246. Sunset, 269, 292. Superior Court, 4, 19,20, 2i, 38, 216, 306. Suppletory oath, 234, 355. Surety, 19, 39, 75, 102, 190, 264, 268, 306, 330, 332. Surgeon, 355. Surrogates, 307. Surveyor, .']07, 356. Sword, 122, 307. Syndics, 127, 350. Table of Fees, 307, 308. Tiicite reconduction, 236, 308, 313, Taillrs, 356. Tarifl; 252, 308. Taxes, 197,308. Tax for court house, 234, 297. Tax of witness, 337. Tax, special, 31. Tavern debt, 347. Tavern-keepers, 197, 309. Tavern licenses, 309. Teacher, 239. Telescope, 5S. Temoins iiistrumentaires. Ill, 152. Temoins nicessiii/rs, 114. Tenant, 172,277,278,306, 315, 350, 351. Teniiids ct a//outissn?/ts, 75. Tender, 76, 84, 90, 227. 283. Tender of oath, 238. Tenure's Act, 108. Term, 22, 154. Testament v. Will. Testament solcnncl, 335. Tcstameutarv executor, 390, 356. Testator, 3, 18, 173, 232, 245, 203, 305, | 309, 333, 335, 336. Theft, 236. Tiercc-o2iposition, 210, Tiers-acquireiir, 178. Ticrs-detrntrur, 141, 143,145, 149,248, 261,289, 293, 30!), 356. Tirrs-saisi, 157, 209, 233, 269, 274,275, 276. 'rimber,98, 178,200,279,296,311, 342. Tiragc au sort, 182. Tithe V. Di.cmcs. Titles, 122, 145, 174,217,219. Titre nonvcl, 145,312. Toll-bridge, 48, 312. Township lands, 104. Trader, 46, 70, 113, 241, 242, 246, 252, 285,300. Tradition, 33,282, 312. Tradition, act,ual, 6. TfAdition, symbolical, 8, 236, 312. Transaction, 112, 204, 313, 317. Transcript, 22. Transfer, 2, 63, 145, 208, 314, 341. Transfer of shares, 220. Tfims])ort, !)0, 3\4>, 331. Treating, 346. Trespass, 7, 75, 94, 202, 261, 314, 315, 356. Trial by jury, 3, 84, 228. Trinity-House, 43, 65,66, .38,210,217, 265, 31.5, .323, 324. Trouble, 75, 77, 134, 236, 257, 316. True Bill, 316. Trust, 305. Trustees, 10, 82, 147, 262. Tutelage, 186. Tutel/e, 316, 317. Tutor, 3, 5, 9.5, 143, 173, 188, 189, 191, 194,239,260,316,351,356. Tutor naturel, 289, 318. Tutorship, 260, 316, 3.56, 357. Tutor to a substitution, 3 18. Two months, 124, 127, 258, 3.50. TInchastity, 333. IJuion .luck, 302,318. Upper Canada, 54, 177. rsii(rnct,2, 318,343,357. Usufructuary, 21 1,318, 319. Usury, 71, 115,229. 31!». Vacant estate, 1, 89, 105, 117. VacaliuM, 22, 27, 53, 176, 215, 223, 232, 252, 275, 288. Variance, 173. Vendee, 4, 10, 34, 280. 313, 320. Venditioni exponas, 122, 124. Vendors, 6, 9, 40, 78, 98, 100, 146, 147, 148, 1.53, 156, 162, 163, 175,236, 257, 279, 280, 281, 312, 313, 318, 320, 331. ■li 1 1 C ; li 1 / 380 CONCORDANCE. 1 V: i 1 _ Ventilation, 256. Vessel V. Ship. Verbal acceptance, 311. Verbal lease, 172. Verbal piomise of sale, 282. Verbal sale, 10. Verbal testimony, 314-. Verdict, 22, 84, 130, 168, 169, 177, 200, 201,320. Verification of writing, 321, 357. Vice-Admiral, 27,321. Vice-Admiralty Court, 12, 26, 64, 97, 116, 130, 162, 166, 167, 217, 234,243, 302,307,318,322. Vice redhihitoire, 325. Vices du sol, 46. Vin vendu jiar assictte, 139. Violence, 236. Vis major, 57, 65, 92, 145, 324, 325. Voie defait v. Trespass. Vol V. Theft. Vouchers, 5. Voyage, 325. Wages, 116, 170, 187, 191, 195, 210, 234, 238, 241, 258, 259,261,280,281, 304, 323, 326, 327, 328, 352, 3.57. Wall, 4. Warehouseman, 330. Warranty, 33, 117, 154, 330. Watch, 214. Water, 332. Water course, 24, 332. Water power, 332. Water tax, 332. « Way, 333. Weekly sittings, 286. Wharf, 266, 277. Widow, 333, 347, 357. Wife, 18, 19, 34. Wild lands, 312. Will, 3, 17, 114, 144,166,174,201,232, 245, 263, 286, 305, 306, 333. Winter, 326. Witness, 37, 40, 65, 88, 101, 113, 1 14, 115, 118, 119, 120,123, 129,151,152, 161, 166, 192, 235, 245,248,249,262, 269,300,311,317,336,344. Woman separec de hiens, 78. Woman sous 2fuissnnce de man, 78. Words of provocation, 30. Wreck, 338. Writ, 3, 20, 77, 85, 95, 121. Writ de terns, 37, 124 Writ of appeal , 20, 2 i , 24. Writ of error, 22. Writ of possession, 338. Writ of prerogative, 339. Writ of prohibition, 245. Writ of summons, 119, 222, 228, 263, 265, 338. Wrongs, personal, 11. M' '• i' ?^ coi^nEOTioisrs f4.,201,232, J3. , 113, lU, 29,151,152, 48,249,262, t4<4<. \. lari, 78. % 228, 263, Preface, line 33, read too Page 10, line 34-, read 11, « 18, " 13, last line, 14, line 2, 22, « 17, 22, « 23, 22, 54, 54., 55, 105, 107, 108, 140, 175, 177, 179, 180, 189, « 209, «' 213, « 213, 220, 221, 227, 228, 241, 249, « 4.6, 12, 4.9, 46, 56, « 25, 76, « 48, 93, « 32, 93, « 53, « 31, " last, « (I (( <( « « 6, 5, 44, '.■).': . 33, 45, 13, 3, 54, 31, 3, 20, 5, 17, 250, « 29, 282, « 20, 282, 290, « « 291, " « 293, « 34, 38, 14, 44, « 294, « 37, «< 294, « « 294, « « 297, « « 314, « « 319, « « 319, « 38, 48, 28, 51, 5, 18, « « « « « « « « « (( (( (( « « « « (I « (( u « « « « « « « (( (( for two. recision for rescission. Doutre and Elvidgc for Doutre vs. Elvidge, S. vs. L. for L. vs. L. adultery for addultery. Blanckemee for Blankensee, Fergusson for Fargusson, Goldsinid for Goldsmith. MailJiot for Maillot, Whitby for Whitly. Blanckensee for Blankenset. Kemp vs. Kemp for Ketnpt vs. Kempt, Ruston for Boston. personal for personel. falling for failing. Marion for Marrion. socage Ibr soccage. « Morisset for Morriset. solicitor for sollicitor. indelible for indellihle. Macdoiwll for Macdonall, Limoges fur Lemoges. ticrs-saisi for tiers-saisie. Batten for Butler, Farnan for Farman, Crcvier for Grevier, Fleming fur Flemings. set-off lor sett-off. << (i « Ferrault for Pcrault. Evans for Evens. note for not. Malheivs for Matficw. Alain for Allain, recision for rescision. rewips for y««i5. Berthelet for Berthelot, bailiff for bailliff. « « « bailifis for baillifis. goods for gsods. Goudie for Goulie, grosses for grosse. Maritime for MaratimOi