IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^ ta Itt U2 112.2 !Jf HA ■■■ Lo 12.0 I.I u — M HiotogFapdiic SdHices Corporation ^:^.^M 33 WIST MAIN STtHT WIBSTIR,N.Y. 14SM (716)t72-4S03 t 4^ 4^' <^ CIHM/ICMH Microfiche Series. CIHM/ICI\/IH Collection de microfiches. Canadian Institute for Historical Microreproductlons / Institut Canadian de microreproductions historlques Tachnical and Bibliographic Notat/Notoa tachniquaa at bibiiographiquaa TIm Inatltuta liaa attamptad to obtain tha baat originai copy availabia for f liming. Faaturaa of thia copy which may ba bibiiographicaily uniqua, which may altar any of tha imagaa in tha raproduction, or which may aignificantiy changa tha uaual mathod of filming, ara chackaid balow. D D D D D D Colourad covara/ Couvartura da coulaur r~1 Covara damagad/ Couvartura andommagAa Covara raatorad and/or laminatad/ Couvartura raataurte at/ou paiiiculAa □ Covar titia mlaaing/ La titra da couvartura manqua Colourad mapa/ Cartaa gAographiquaa mt coulaur Colourad ink (i.a. othar than blua or black)/ Encra da coulaur (i.a. autra qua blaua ou noira) Colourad plataa and/or iiluatrationa/ Planchaa ot/ou iiluatrationa an coulaur Bound with othar matarial/ RaiiA avac d'autraa documanta Tight binding may cauaa ahadowa or diatortion along intarior margin/ La r9 liura aarrte paut cauaar da I'ombra ou da la distortion la long da la marga intAriaura Blank laavaa addad during raatoration may appaar within tha taxt. Whanavar poaaibia, thaaa hava baan omittad from filming/ 11 aa paut qua cartainaa pagaa blanchaa ajoutiaa lora d'una raatauration apparaiaaant dana la taxta, mala, loraqua cala Atait poaaibia, caa pagaa n'ont paa 4tA filmiaa. Additional commanta:/ Commantairaa aupplAmantairaa: L'Inatitut a microfilm* la maillaur axamplaira qu'il lui a Ati poaaibia da aa procurar. Laa d^taiia da cat axamplaira qui aont paut-Atra uniquaa du point da vua bibliographiqua, qui pauvant modifiar una imaga raproduita, ou qui pauvant axigar una modification dana la mAthoda normala da filmaga aont indiqute ci-daaaoua. r~~| Colourad pagaa/ D ThIa itam ia filmad at tha raduction ratio chackad balow/ Ca document aat film* au taux da reduction indiqu* ci-daaaoua. Pagaa da coulaur Pagaa damagad/ Pagaa andommagAaa Pagaa raatorad and/oi Pagaa raatauriaa at/ou paliiculAaa Pagaa diacolourad, atainad or foxai Pagaa dAcolorAaa, tachattea ou piquAaa Pagaa datachad/ Pagaa dAtachtea Showthroughy Tranaparanca Quality of prir Quality InAgaia da I'impraaaion Includaa aupplamantary matarii Comprand du material aupplAmantaira Only aditlon availabia/ Saula MMon diaponibia I — I Pagaa damagad/ I — I Pagaa raatorad and/or laminated/ r^ Pagaa diacolourad, atainad or foxad/ I I Pagaa datachad/ [771 Showthrough/ I I Quality of print variaa/ I I Includaa aupplamantary material/ I — I Only edition available/ The tot The poa oft film Ori( beg the ston oth( firat sion or 11 Pagea wholly or partially obacured by errata aiipa, tiaauea, etc., have been ref limed to enaure the beat poaaibia image/ Lea pagea totalement ou partiellement obacurciea par un feuillet d'errata, una pelure, etc., ont 4tA filmiea i nouveau da fa^on A obtenir la meilleure image poaaibia. The thai TINI whii Map diffi antii begi right requ metl 10X 14X 18X 22X 26X 30X y 12X 16X 20X ?4X 28X 32X ■ire I details |UM du t modifier Iger une I filmaga / jtea ira ly arrata •d to nt na palura, ipon A 32X Tha copy filmad hara has baan raproduead thanlct to tha ganaroaity of: National Library of Canada Tha imagaa appearing here ere the beet quality poaeibia coneidering the condition end legibility of the originei copy end in Iceeping with the filming contrect specificetiona. Originei copiea in printed peper covere ere filmed beginning with the front cover end ending on the leet pege with e printed or llluatreted imprea- •lon, or the beck cover when eppropriete. All other originei copiea ere filmed beginning on the f Irat page with e printed or illuetreted impree- sion, end ending on the lest page with a printed or llluatreted impreaaion. The leat recorded freme on eech microfiche shell contein the symbol -^ (meening "CON- TINUED"), or the symbol Y (meening "END"), whichever eppiies. IMaps, plates, charts, etc., mey be filmed et different reduction retlos. Those too lerge to be entirely included in one exposure ere filmed beginning in the upper left hend corner, left to right end top to bottom, es meny fremes es required. The following diegrems illustrete the method: 1 2 3 L'exempleire fllmi fut reprodult grice k ie gAnArosit* de: Bibiiothdque netionele du Cenede Les imeges suiventes ont At4 reproduites avac ie plus grend soin, compte tenu de Ie condition et de la nettet* de l'exempleire f ilmA, et en conformity evec les conditions du contret de flimege. Les exemplelres origineux dont ie couverture en pepler eet ImprimAe sent fiimis en commenpent per Ie premier plet et en terminent soit per Ie dernlAre pege qui comporte une emprelnte d'impreseion ou d'illustretion, soit per Ie second plet, selon ie ces. Tous les eutres exemplelres origineux sent fllmte en commenpent per la premiere pege qui comporte une emprelnte d'Impreeaion ou d'iiiustration et en terminent per Ie derniAre pege qui comporte une telle emprelnte. Un dee symboies sulvents spparattre sur Ie dernlAre imege de cheque microfiche, seion Ie ces: ie symbols — ► signifie "A SUIVRE". ie symbole V signifie "FIN". Les certes, planches, tebleeux, etc., peuvent Atre filmte A dee tsux de reduction diffArents. Lorsque Ie document est trop grend pour Atre reprodult en un seul clichA, 11 est film* A psrtir de I'engle supArleur geuche, de geuche A droite, et de heut en bee, en prenent Ie nombre d'imegee nAcessaire. Las diagrammes s'jivants illustrent Ie mMhode. 1 2 3 4 5 6 MONTREAL CONDENSED REPORTS. PRfiClS DES DECISIONS DES TRIBUNAUX DU DISTRICT DE MONTREAL. « peu arflumcnts eg pure en qntnv (I its auoft aueun refuse." PLOWDEN. VOL. I. R^iean txLlbris MOMTREAL : published for the proprietors by HEW RAMSAT, St. Frangois-Xavier Street. MONTREAL : public pour les propri6taires par HEW RAMS A V, Rue Si. Frangois'Xavier, 1854*. SUPERIOR COURT, 1853-4.. 1 ^nprrfor Court. 24. Dec, 1853. Present: — Day, Smith and Mondelet, (C), Justices, No. 1026. Bowker v. McCorldll 4* Graham, mise en cause, PROCEDURE. — RE-OPENlNG ENQUflTE. This is a motion by the mise en cause to strike the cause from the Role de droit for final hearing, and be admitted to produce evidence in rebuttal of the evidence adduced by the plaintiff in support of bis special answer. >^ A. Sf G. Robertson, in support. Gugy, contra. Day, J., It has been the habit in this Court for the party terminat- ing his enquHe to call upon the adverse party to fix a day for con- tinuing his enquite, and in default of his so doing to fix a day for that purpose. The proper course, however, for the party closing his en quite is to caN on the opposite party to go on with his enquHe, and in case of no one appearing or fixing a day the party present may, up- on application to the Court, have the enquite of the party in default closed. This was the impression of the Court at the time of the • argument, and we find the 43 Rule of Practice supports that impres- sion. In this case, however, the Court will permit the mise en cause to re-open enquite, as Counsel have been led into error by the incor- rect practice that has obtained in this Court. Motion grauted. ,"1 No. 1732. Genier v. Cliarle^ms. MOTION TO DISCHARGE INSCRIPTION THERE BEING NO SIMILITER. Held, tliat similiter is not necessary. That Court can adju- dicate on an imperfect issue. This case came up on a motion to discharge the Inscription for honr- ing on the merits there being no similiter. Henry Stuart, in support of motion, contended that the issue in this cause was not joined. The record consisting of Declaration Plea, and a notice to the Plaintiff to file a Replication, and foreclosure con- sequent upon his not doing so. The Defendant then inscribed the cause upon the Role d' Enquite, and inscribed for hearing on the merits as in a contested cause. 8 SUPERIOR COURT, 1853-4. Tlie 25 Geo. Til., imperatively directs that an issue between a FlaintifTand a Defendant shall be made and completed by the Declara- tion, answer and rejilicatior. at Irast. In other Actions provisions has been made to meet the cases of De- fendant not appearing, or appearing and not pleading, and in such cases the Court is authorised and empowered to award judgment upon good and satisfactory proof having been made by the PlaindiT. There is no such power given to the Court in the event of Plain- tiff's not completing the issue by a replication, rendered essential by the language of a positive law. In this case the issue is incomplete, and the Court cannot supply the deficiency. It, therefore, is not a contest- ed cause, and no power has been given to the Court to treat the case as one by default or exparte. As to the practice of the Court having been imiformerly in favor of the pretensions of the Defendant, such an argument, evtn if founded on fact, is without weight or foundation, as power or jurisdiction depends upon the amount and degree conferred and not upon any illegal or arbi- trary exercise thereof for any period of time. A. 4* G. Rfjbertsdn, contra. Daijt J., It is not necessary tliat there should be an issue. There is no issue in exparte cases by default. Tlie case is not in the best state to be heard on the merits ; but there are meritst It has been the undeviating practice of this Court to allow inscription on the merits without similiter, and I am convinced the practice is founded on a logical rule. Mondciei, (C), J., concurred. « Smith, J., there are imperfect issues and pleas. See Ordonance of, '85. Motion dismissed. 27 Dec, 1853. Present: — Day, Smith and Mondelet, (C), Justices, No. 2368. Roubotham v. Scott, PROCEDURE. — EXCEPTION A LA FORME. — INSUFFICIENT CERTIFI- CATE OF RETURN. A bailiff' hnd returned a writ and in the certijicate of service hud qualified himself as '* bailiff of the Superior Court'** only, without adding " for District of Montreal.''* Held, that the bailiff having taken quality of bailiff of the Superior Court, the Court was bound to know the sig' nature of its own offwer. To this action the defendant fyled an exception d la forme, ground- ed on the insufficiency of the bailiff's return, he having styled himself, ** Bailiff of the Superior Court" only, without adding " for the District of Montreal." SUPERIOR COURT, 1853-*. f Cross tj* Ba?iaoft, in support of exception. Mon-isnn, contra. « J)(i7jfJ.^ 'Hie Court cannot mnintain tliis exception. The writ slows tliat it was served on the riof Ccrtior^iri, that Commissioners hud not jurisdiction ou that day. Godin, for Applicant. Day, J., Commissioners Courts hy the Statirte creating them must be hel J on the first Montlay of eacb month, unless that day be holiday, in which case they are to be held on the Tuesday ; but, there is n )- Ihing to prevent the Commis'^^ioners adjourning the Court: to any other .day they jtlease. it dpes not appear that this judgment was not ren- dered on a Wednesday to wliieli the Court liad been adjourned. Cc/tiorari refused. No. 878. Exparte Narcisse Landry. FOR A WRIT OF CERTIORARI. Oc the 7th of April last, the saiil Narcisse Landry was arrested on ,the warrant of Marcel Poirier, Esquire, one of Her Majesty's .Justices «of the Peace for the District of Montreal, on .the •'accusation of one Germain Eichard^ for having, on .the evening of the 4th April last, r4 SUPERIOR COCJRT, 1853-4. menaced the said Richard, calling to him to come out and fight, that he was resolved to destroy him, and that he would gain hy dtstroyiug him and all his family ; and for having also iirfd a shot into the prosfC- cutors house, by which two pains of glass were broken. No plea was entered on the part of Landry, but the Justice of the Peace took tlie depositions of several witnesses, and thereupon discharged the Petitioner of the accusation of having fired the shot that broke the glass in the prosecutors windows ; but found him guilty of injurious langunge, for which he condemned him to pay a fine of 10s., and costs, amounting to jS2 lis. 9d., and in default of his so doing to be confined in the Com- mon Goal uf the District during the space of fifteen days. On the part of Landry it was contended, on application for a writ of Certiorari^ that in hearing the complaint of Richard at all the justice had exceeded his jurisdiction,4he accusation against him being a felony — that the Defendant had never been put on his defence, nor been allowed to cross-examine the witnesses — and that the alledgod ofl'ence for which he was convicted was no ofl'ence at all cognizsible by a jus- tice of the Peace. This Petition was supported by affidavit, and the Court granted a rule for the writ demanded. Subsequently on motion OD the part of Landry the rule to qaush was declared iJSsolute. Moreau, Lcblance ^ Cassidy, for Petitioner. No. 2003. Mandigo and ul v. lloyle and al. ACTION BY MECHANICS FOR BUILDING A WHARF. Burroughs, for Plaintiffs. Day, J., This is an action on a personal contract for the building of a wharf, but quite another contract has been proved. It appears that certain persons wished to build a wharf, and to carry out (his work they named a committee, the Defendants, to get it done. The Defendants had in their contract with the Plaintiffs taken care to make appear the quality in which they were acting, in fact they were the mandataries of other parties. A question might be raised as to whether the Defendants might not be personally held liable, but the course taken by the Plaintiffs was not the right one. Action dismissed. No. 2033. Batten v. Desbarats. COMPENSATION. Juge, qu^une dette due au Defendeur par une Society dont le Demandeiir faisait partie ne peut pas etre offerte en compensation de la a-eance personnelle du Demandeur. Le Demandeur poursuit le Defendeur pour le recouvrement d'une somme de JSSO 18 0. SUPERIOR COURT, IP^S-*. |r Le D^fendeur fait difT^rentes exceptions et entr'autres une excep* tion p6rernptoire de compensation et paiement et alldgue quMI a obte- nil un jiigement pour JC2000 conjointement avec M. Derbishire centre une soci6t6 d^ouvriers en verre dont le Demnndeur fesait partie. Le Deinandcur r^pondit en droit " que le Dl'fendeur ne pouvait compenser " la cr6ance personnclle du Demandeur et de ses C^(knts par la cr6- " ance quMI pourrait individu(>llenient avoir contre une 90ci6t6 dont le " Demundeur ou ses C^dants auraient fait partie, que le D6- '' fendeur ne peut en droit compenser la cr^ance personnelie du ** Demandeur et de ses C^dants par la crdance conjointe et solidaire " qu'il peut avoir en commun avec Derbisliire contre une soci6t6 dont " le Demandeur aurait fait partie." Doutre, Daoust et Prairie au soutien de la r^ponse en droit ont cit6: Troplong Soditi, Vol.1, Aos. 58 et 79. Toutlier^ Vol. 7, Iso&. 378 et \>Wl. Duvergier, Vol. 5, p. 493 et les deux suivantes, Da/loz, Vol. 1, Verbo Compensation No. 76, T. S. Judah, contra. Day, J. Une dette due par plusieurs personnes sous les circonstan- ces de cctte action ne peut dtre offerte en compensation. Exception de Cofnpensation deboutee. No. 1874. Laurier v. la Corporation du Petit Seminaire de Ste. Therise* Juge, que les mots " depens de Paction " n^expriment pas lei frais de faction telle quHntroduite " amount demanded '* mais seulement les frais du numtant recouvre " amount recovered.*' Cette cause 6tait port6e pour le recouvrement des honoraires du Demandeur comme ni^decin pour avoir soign6 feule R^v6rend Messire Ducharme le fondateur de cet 6tablissement, durant sa demidre mala- die, pour une p6riode de tems considerable. La Defenderes&e n'of- frit que vingt-cinq livres, courant, et pretendait que les services du Demandeur ne valaient pas davantage. Le Demandeur r6clamait cinquante-cinq livres, deux chelins, six deniers cours actuel. La con- testation fut r^f^r^e a des m^decins, dont un de la ville de Montreal et deux de la campagne, pour arbitrer sur le quantum. Par leur rapport its ont condamn6 la D6fendresse a payer quarante livres courant, declarant en m^me temps que le Demandeur avait eu raison de presenter un compte pour le montant entier de sa reclamation ; et ils ont sugger6 i. la cour que la Defendresse devait supporter tous les frais. Le jugement de la cour a homologu^ ce rapport avec les d6pens de Taction. Plus tard sur motion de la D^fenderesse il fut decide que les frais devaient 6tre tax^s comme dans une action de quarante livres courant 6 SUPEUIOR COURT, I853-f. et (|uum. of money belonging to the .Defendant in the hands of the said Tiers- Saisi. The writ of said airSt directed the Tiers Saisi to come be- fore the Justices '* of" oiu: Superior Court to answer in the premises. The said writ returnable on the Sith. day of October, 1853. On> the same day after the return the Defendant moved to quash the writ and process, as the writ ought to liave summoned the- Tiers Soibi to« appear before '* our Justices in our Superior Court." This motioni was taken en ddiiiere, and judgment was rendered on the 18th day of December last; dismissing^ the motion, the Court observing that at SUPERIOR COURT, ISf)?-*. SOU9< ID OF sof a it, and bond, of lii» osoby t com- I notarjr rht per- Majcs- d Inj ther while the rtajn sum. saiJ Tiers- come be- premises. 8b3. On> ib ibe writ rs Saifii tc bis rootiow 8lb day oC ing^ tbat. a irrit could ii'^t be qunalicd on motion, tbnl tbe only way to qunnTi n writ wan by c.rcrpfiond lafornir. 0\\ the l})tli of DcMtinber the Deft-n- daiit lylt'ir an rrception a la fonnr, hased on the snitl inroriiiality, iind tlie PluintilT moved to diHiniss the said cxec|ition, the four lia^s allowed ly Slatiin havin;; cNpired. Jictlnmc k]' Diinkin, in support of the motion, cnntendi.-d that the four days allowed to fyle an exvrptton u Id forme by the IG Vic.,c. If), s. 21, bnd expired before tbe I'yling of the exception fn question, that the wording of tbe section was express and coidd not be extcndeif by tbe (/ourt, that tbe Defen(fant had chosen bis remedy, and that if tbe time for f) ling bis cxceiitioii d la forme was prescribed, it was by his own fault. E. I). Vovid Sf Raimai/, opposing tbe motion, contended, that Del'endunt bad not bud four days in which he could fyle his exr.rjuion dlaftrmc, tbat the record had been taken en dti'mre the day after tbe return of tbe writ, and that the exception had bi-en fyled the day after the record bad been sent down, that no paper lOuM be fyled while the record was before their Honors ; that tlie taking of the re- cord en dilibcre on Defendant's motion was tbe act of the Court smd not of the Defendant, tbat it could not be supposed that the Le;;isla- ture had a case like the present in view in framing the section invoked by the Pbiintilf, that tbe time during which the record was en dihhcre before their Honors could no more be counted to exclude the lyling of an cxceptum a la forme, than could the time during which a case was in Appeal count, as part of tbe G months to exclude a party to ap- ply afterwards for a writ of Certiorari. Mondclct.y (C), J., dissenting from the majority of tbe Court said^ tbat it is well established, that no record can be touched by either party whde en deliltere. That be could not believe that it was the irit« Dtion of tbe Legislature, that the delay should come at^ainst a party while the le- cord was out of his reach, that do Judge being nt liberty to persumesucb an intention in the Legislature, Rothing short ef a ch'ar distinct^ imper- ative declaration on the subject, could induce him to disregard a prin- ciple which, in his opinion, was correct, it bciug founded on reason and justice and in keeping with what be considered to be Ijonnejrrocidiire, Day, J., 1 quite agree with my learned brother as to the record be- ing THit of the reach of tbe Defendant ; but the terms of the 16 Vic, especicilly coming as they do to carry out the 12 Vic, are so espress that we cannot chose but follow the stud rule there laid down. At one time in England the Courts of Justice ialerlerred constantly witiv Statutes and great inconvenience having arisen from this practice, it is now no longer done. Smith, J., The Defendant bad not two remedies ; be took a course- to whii-h he bad no right , and by his own fault lost bis opportu- nity of fyling an exception d la forme. The Court could not help taking the motion to quash en delthcre. Motion maintained and exception d la forme rejected.. The Defendaiil g;urc notice of Appeal. This Appeal has been abaudiMtciU 8 SUPERIOR COURT, 1S53-4. Dec. 30th, 1853. ^ Present : — Day, Smith and Mondelet, (C), Justices, No. 2145. M'Dougal V. Morgan. RECORDING. This action was brought for two items, the 1st for J6157, for salary up to the 1st May, 1853, and the 2nd for j623, for salary due sinre that date, and certain credits were allowed towards each sum. The Defendant met this demand by three pleas and a general answer. By his first plea he alledged that Plaintiff had received JC14>8 in goods, leaving a balance of only £9, which he tendered and concluded for the dismissal of the whole action. The second plea was similar to the first. And the third pl^ answered the second item by pleading compensation in damages, and likewise concluded for the dismissal of the whole action. To these pleas the Plaintiff demurred on the ground that each of them only preported to answer a part of the Declaration, while they concluded for the dismissal of the whole action. Badgleyy Q. C, 4* Abbott, in support of demurrer. Popham, contra. Day, J., These pleadings are insufficient. Each of them meets only one part of the demand, but at the same time they all conclude for the dismissal of the whole action. Demurrer maintained. No. 882. Exparte Alldre for writ of Certiorari, CERTIORARI. Loberge ^ Lajlamme, for Petitioner. Day, J., This action was brought against the Petioner in the Com- missioner's Court for damages for not having entered into co-partner- ship with the Plaintiff in the Court below according to agreement, and the Court had condemned Petitioner. This is certainly an extraor- dinary judgment, but we are not made sure that there has been an excess of jurisdiction. The presumption is that partnerships include matters of greater value than j£6 5s, cy., but there is nothing in the affidavit to show that it was so in this case. Certiorari dismissed. * No. 2133. McElwee v. Darling. DAMAGES. — SEDUCTION. — DECLARATION DE PATERNITfi. Action of damages for seduction. — Declaration de paterniti. This action wasbrought by the Plaintiff, who described herself as file majure et usante de ses droits, for seduction and en declaration de paternite. The Declaration stated," That the Defendant" " with force and arms there and then in and upon the body of the said Plain- tiff made an assault, and then and there did seduce, debauch, deflower and carnally know the said Plaintiff, and did then and there and at SUPERIOR COURT, 1853-4. 9 4 divers times, since that time, abuse, lie with and carnally know her." The Declaration then went on to allege that Defendant became the father of a child by the PlaintilT, and concluded as in an action of damages for seduction and en declaratian de paternite. The Defendant met this action by two demurrers — by the first of which he prayed the dismissal of the action, on the ground that the alle- gations of the Declaration amounted to an allegation of felony, and it was not aliedged that criminal proceedings had been had thereon, and by the second he likewise prayed for the dismissal of the action on the ground that a fille majeure could not bring an action of damages for seduction. McCrae, in support of demurrers, cited LamotUe v. Chevalier in support of the former. Doherly, contra. Day, J., The Declaration in this case is expressed in terms of rather an extraordinary character ; but the Court does not think that the allegations amount to the allegation of a felony. With regard to the other demurrer the action is en declaration de pater?iHe, as well as for damages for seduction and the demurrer is general. Both demurrers must therefore be dismissed, but perhaps the Plaintiff will find that the absence of all allegation of any promise of marriage on the part of Defendant will preclude him from recovering damages. Demurrers dismissed. No. 961. Lynch v. Papin. INFORMATION. — ELECTION OF CITY COUNCILOR. — EXCEPTION A LA FORME. P. had been elected as councillor to represe?it a ward in the City of Montreal ; L. pretended that election of P. wa% illegal, and that he L. ought to be declared duly elected ' councillor, and brought his action by requSte libellee, and judges order in consequence. Held, tliat Writ of Sum- nwns, and not Order of Court, was the tvay to bring Defendant before the Court, in order to answer itie double demand of Petitioner, This was a proceeding by Requite Libell6e, under the 12 Vic, c. 41, and the 14 Sc 15 Vic, c. 128, to oust th» Defendant from the office of a City Councillor for the St. Mary's Ward, in the City of Montreal, and to declare the Plamtiff or Informant to have been duly elected. The Petitioner aliedged that Defendant was incapable of be- ing elected a Councillor at the election referred to in requHe, because he bad not been a resident householder within the city during the twelve months previous. The conclusions of the requite were iu the follow- " ing terms, " that said Joseph Papin be ordered to show by what " authority he exercises said office of Councillor of and for St. Mary's " Ward, in and of this City of Montreal, and that an order do issue « according to law, to compel the appearance of said. Joseph Papin ia ii i , if 10 SUPERIOR COURT, 1853-4. *' this Court, for the purposes nforesnid, and to answer, if he sec fit, this ■** Jnl'ormntion ; and Inftrrmant further prays that said Joseph Papin be ^' declired guiltj of usurping and unlawfully holding office of Councillor ** of and for soiil St. Mary's U'ard, in and of this City of Montre!il,and *^ that ho hi; ousted and excla?led from said office, and that said Patrick *' Lynch be detlared to have been and to be entitled to said office, and ** tluit the Mayor, Aldtrmen and Citizens of the City of Montreal, and ** the Council of the s:>id City, be ordered to admit him, said Patrick '* Lynch, to the said office of Councillor for St. Mary's U ard afore- *' said, as duly elected to said office, by the el«ction and result of the ^' election before referred to, and that such other orders be made as to " n^ht and justice may appertain, &c." An order was made upon this Petition, ordering the defendant to appear on the 17ih May, 1853, to ans-werthe same. The Defendant having appeared answered, said RequSte by an ex- ception a ia forme, by which he contended, among other things, that the order annexed to the Petition served upon liini, the Defendant, was null and void, and that by it Defendant had not been properly brought before the Court, and that for the purposes of stich a rcquete he, the Defend.int, otigl t to have been summoned by writ. Upon the argument the Petitioner contended that the Acts of the 12 Vic. and 14 He 15 Vic, referred to, ought to be viewed together, that he, Petitioner, required the benefit of both Acts, and had, by his Petition, set up his right as a voter, under 14 & 15 Vict., to complaia of Defendant's intrusion, while he claimed also, under the 12 Vic, the office usurped by the Ppfendant, as having received, of all these quali- fied to be elected Councillor at that election, the greatest number of votes ; that the form Petitions had adopted, and the order he had pro- cured, was regular enough, and proper to be adopted, under 1+ & 15 Vic. Cherrier^Xl. C, Dorion Sj' Dorion, in support of exception. Mackay d^ Au^in, contra. Day, J., Tins question is to be decided by 12 Vic, c. 41, sect. 6. By that JStatute a party may demand that tlse occupant of an office may be ousted and name the person wiio should replace him ; but the mode of impleading parlies by that Statute is by V\ rit of Sunnnons. If the Plaintifl' proceeds by order, according to 14 and 15 Vic,e. 128, the Court carmot call upon Defendant to show cause why Plaintiff stiould jiot replace Defendant ; for that Act only goes to oust a party holtling an office wrongfully. The Court is at a loss to know why an order should ever hnve been substituted for a Writ of Summons, unless it be that the Legislature, having by the 12 Vic. introduced something new instead of the writ o{ Mandamus and Quo warranto, were determined to introduce something still more novel by the 14 & 15 Vic. The exceptifjn d la forme must be sustained j but the Court is not surprised th.it Counsel should have been at a loss as to which proceeding to take, fiuch an act umulajion of legislation on the same point cannot fail to lead to inextricible coniusion und fitigation, and is extremely embarrassing AS well to the bench as to the bar. Exception d laj^me, maintained, RcquSte libillee dismissed. SUPERIOR COURT, 1853-4. 11 No. 2417. Macfarlane v. Rutherford. PROMISSORY NOTE — PRESCRIPTION OF FIVE YEARS. To an action on a Proniii^snry Note viafuied previous to the 12 Vic. c. 22, coming into force, the Defend/rnt iilcadcd in bar the jncFcription of five years estailidicd Inj that SfaJute. Hf Id, that 12 tVt. c. 22, is not a bar within five years after Act coming into force, to the recovery of notes ma'ured previous to that Act taking ef/^ect, Bethnne Sf Durdcin, for Flaintiff. Larkin, for Defendant. Dtty, J., The prescription of five years established by tbc 12 Vic. c. 22, does not affect notes matured previous to its coming into force. If it was intended to invoke the prescripJion of five years existing pre- viously to that time, the plea is bad m form, as under the old statute, the party availing himself of it required to offer his oath, that the note had been paid. Ansioer in Laitr dismsscd. No. 2022. Alio V. Alio and al. This was an action brought by a father against his iyvo sons for an alimentary pension, as he was upwards of sixty-three years of age, un- able to work and almost blind. To this action the Defendants pleaded that they had always been willing to give work to support Plaintiff, who was still able to work to maintain himself, and one ef the Defendants, John Alio, a currier, by trade, effered to employ Plaintiff in his trade, which was also that of Plaintiff. Defendants further offered to rec eive PlaintitY into their respective families and support him there if he should become unable to work for his own support. BediceU, for Plaintiff. A. Sf G. Robertson, for Defendants. Day, J., It appears, PlaintilT can only do one kind of work, whicb he can only procure from his son, who has shown himself unfeeling to Plaintiff, he must therefore have judgment. The only difficulty is the quantum, and as the Defendants do not appear to be in affluent ciicum- stances, the Court reduces the pension to JG30 a year, payable quarterly in advance, instead of j£50 as demanded. Mrmdelet, (C.) J., In concurring in this judgment, said that one part of the evidence had great weight with him, it had been proved that Plaintiff was very nearly blind and be thongiit the only kind of work which it had been proved he could do exposed his life to danger} be might fall into the tan-pit. 12 ' SUPERIOR COURT, 1853-4. f No. 57. Benjamin J Ap2it. v. Gore, Respt. This was an appeal from a judgment of the Circuit Court, on an op- position djin lie clistraire. Carter Sf Kerr, for Appellant. Day, J., In dismissing the appeal as it was purely a question of evidence for the discretion of the Court below, remarked that the Appellant seemed to rely upon several interlocutory judgments, render- ed in the case admitting certain evidecce, and from which no notice of Appeal had been given at the time. If a party wishes to challenge an interlocatory judgment he must object to it at the time it is rendered. Appeal dismissed. No. 150. Bowker et al Appl. v. Chandler, Respt.* PROOF OF PARTNERSHIP. ADMISSION OF ONE PARTNER NOT SUF FICIENT. Held, reversing judgment of Circvit Court, that the admission on f aits et articles of the existence of co-partnersliip hy one of the alledged partners is not sufficient to make proof against the other. This case was an appeal from the Circuit Court. In the Court be- low the action had been brought by the Respondent on a promisory note made by the Defendants in the Court below, now Appellants, and signed " E. & .1. Bowker, Jr." In the Declaration it was alledged that tlie Defendants were co-partnet's ; and the return of the Bailiff showed that this action had been served personally on one of the Defen- dants, at " their counting-house in the Township of Farnham." The Defendants met this action by an exception d la forme, con- tending that there had been no regular service on the Defendants. The Plaintiff answered generally, and tried to, establish the existence of the co-partnership by the admission of one of the alledged co-part- ners on interrogatories on f aits et articles. The Court below thought this admission sufficient, and dismissed the Defendant's exception d la forme. From this interlocatory the Defendants appealed. Doherty, for Appellants. Mack, for Respondent. Day, J., Proof of co-partnership can never be made by one of the co-partners ; and, also, in this case there is no evidence to show that any co-partnership existed at the time of the making the note in ques- tion. Appeal maintained. * There was another case between the same parties in which the same point was raised, No. 151. SUPERIOR COURT, 1853-4. 13 No. 1227. McCann v. Benjamin, FALSE IMPRISONMENT. Held, that words used by a party sued for false im2)risonmcntf in givmg the jjarty in diarge cannot also become the sub- ject of an action for slander. Arrest arose out of a dispute as to whether a sale of 5 dozen shirt fronts was by the lot or by the dozen. Plaintifl' alledging that they were sold by the quantity for $9, and Defendant, that the sale was by the dozen — and that he had made a mis-calculation in charging only $9. The goods were delivered to Plaintifl* by Defendant and taken out of the shop, but Benjamin discovering his error sent immediately to recall McCann, stating that there was a mistake. — McCann, however, refused to go back, and Benjamin then followed him, snatched from him a portion of the goods, gave him in charge to a policeman, passing at the time, upon a charge of robbery, and sent a clerk to prefer the accusa- tion, but upon hearing *' p *"'^cts McCann was discharged by police oflicer —Benjamin then returned v^ McCann the portion of goods taken from him in the morning,and thereupon action was brought for JC200 damages. Defendant pleaded his version of the sale in justification. The evidence of the sale, which consisted of the testimony of Defendant's clerks, went to establish a sale by the dozen,with the excep- tion of the fact that the goods were returned to McCann after the arrest. Badgley, Q. C, Sf Abbott, for Plaintiff. Carter Sf Kerr for Defendant, urged first, that the sale was by the dozen, and that Plaintiff knew it, that taking away the goods by Plain- tiff amounted to larceny — and that the facts were a complete justifica- tion of Defendant; second, that under the Statute 4 &; 5, Vic, cap. 26, s. 40, notice was required to be given by the Plaintiff to Defendant before commencmg proceedings. In support of this second proposition Defendant urged that this was a case within the Statute, and that under a similar Statute in England, notice would be required in similar cir- cumstances. 1, M. & W. 628.-9, M. & W. 740.— 15, M. & W. 344.-2, Moore and Payne, 613.-9, B. & C. 806.-6, Ad. & El. 661. Plaintiff in reply denied the Defendant's first proposition, and in re- ply to the second argument said, that to bnng Defendant within the protccfion of the Statute he must be acting in execution of it, and under its authority ; and not only must believe himself to be so acting, but must have reasonable ground for such belief: — and further submitted that the Statute was only applicable to officials acting in their capacity as such. Plaintiff cited 6, B. & C. 357.— 10, Ad. & El. 282.-10, Q. B. R. 150, 151.— 1, M. & W., 620— note.— 15 M. &W. 344— note.— 1, Car. & M. 13, 14-18.-9, Car. & P. 651. In rendering judgment, after recapitulating the evidence, Day, J., said, that the evidence of record certainly went far to establish the fact that the goods were sold by the dozen, and presuming that to be the case, McCann was certainly wrong in refusing to pay the balance due 14 SUPERIOR COURT, 1853-*. upon them or to return them all, and receive back his monejas ofTfreil hy the Defendant. This, however, would constitute no justification of tile imprisonment, although it would of cour.7?e/, whereas Defendant was only their ayeul mnlernel, and that imder any circumstances, the Court could not, upon the present proceedings, set aside the i«<^t'//c of Petitioner as prayed by Defendant. The Defendant contended that he was the Tutor first appointed to the minors, for that Duim's tutelle oujiht to be held to date only from time of its homologation, he also contended that the tutelle of the minors could not be conferred in the District of Three Civers, for their father's domicile was at Coteau du fjac, in the District Of Montreal. He contended that the appointment made in the District of Three Rivers was utterly null and void, and ought to be held so by the Court here upon the present proceedings. E. D. David, for Petitioner. R. Machiy, Counsel. Chcrricr, Q. C, Do? ion cj* Dorian, for Defendant. Day, J., Some very interesting points have been raised in this cause, but the Court does not feel itself called on to adjudicate upon them. It is admitted that the apppointment of Dunn, by avis de parcfits, as tutor was prior to that of Reaudet, and that the prior appointment has never been annulled. The evisttnce of two general tuf.elles'is incompatible. The appointment of Duim also took place in the District of Three Rivers, and the Court here has no authority to revise the appointment of a Tutor in the District of Three Pi vers. l%e ajipointtiynt of Beaudet is set aside. li Smith, J., 4' Mondelet, (C.J J., concurred. r 16 ill SUPERIOR COURT, 1853-4. Dorion, Does the Court hold the tutelle of Dunn to date from the date of the homologation of his appointment, or from the time of bis appointment at the avis de parents before the Notary. Day, J ., From the time of his appointment before the Notary. No. 2490. Tidtnarsh v. Stephens Sf al. CERTIFICATE OF RETURN. The original tvrit in this case was returned into Court without any certificate of service j and the Bailiff petitioned to he allowed to make his certificate after the return day. Held^ that there was nothing before the Court. The Bailiff who served this action on the Defendants had returned the original writ into Court without any certificate of service, and came before the Court with a petition praying to be allowed to make bis return on payment of such costs as the Court might award. Carter &• Kerr, in support of petition. David Sf Ramsay f contra. Day, J.j The Court has given this point a good deal of attention. It is quite clear the prayer of the petition cannot be granted— there is nothing before the Court. Besides, there is another technical objec- tion, in all these proofs verbaux or certificates of return, it is supposed that the Bailiff writes them at the time he makes the service and not sometime afterwards from memory. The Court would not give costs, the Bailiff did not come there to pay costs. Petition dismissed. No. 1563. Brush v. Jones Sf al. Sf e contra, MOTION FOR NEW TRIAL. Motion, on the part of the Defer dant that the finding of the jury be set aside and held for nought, and that a new trial be granted. Rose, Q. C, Sf Monk in support of motion. A. Sf G. Robertson, contra. The Court considering that the findings of the jury were contradic- *tery, and that no judgment could be given thereon, granted the- jikotion of the Defendants and Incidental Plaintiffs. In consequence SUPERIOR COURT, 1853-4. t7 tlie Court set aside the findings of the jury on ihe twelfth of Decem- ber, 1853, and granted a new trial. Tlie Court in pronouicing judgment stated that the jury had found that Brush had not fulfilled his contract with Jones, and yet found Jones 'vas indebted for the causes mentioned in the Plaintiff's Declaration, which finding they considered to be contradictory and inconsistent. New trial granted. No. 921. Bizaitlon y. De Bcaujeu. Before her marriage Plaintiff ''s wife liad obtained judgment against Defendant and anoitier in their capacity of Tutor and Tutor ad hoc, and Plaintiff now brorught action against Defendant to have judgment declared common and executory against Defendant. Held, that this ivas not the case in which a judgment common could be granted. Cherrier, A. R., for Plaintiff. BcOiune Sf Dunkitt, for Defendant. Day, J., This is a novel point. It appears that the wife of Plaintiff previous to her marriage with Plaintiff, had obtained judgment against Defendant and another in their capacity of Tutor and Tutor adlwc and the husband now brings his action against Defendant to have the judg- ment declared common and executory against the Defendant. To this action the Defendant pleaded the general issue upon which the law and fact of the case came before the Court. With regard to the facts of the case, at the time of the argument, the Court was rather dis- posed to think that the marriage of the Plaintiff was not very satisfac- torily made out ; but that is of very small importance, as the Court does not think that this is one of the ca!>es in which a jugement can be declared commun. There is no reason why such a proceeding should be allowed. The Plaintiff does not require it. The parties are still before the Court, and judgment is even executed in a dead man's name. There is no difficulty here, there are two ways of executing this judgment ; but Plaintiff cannot have a new and independant action. His li.onor cited the case of Ogdcn v. Boston in support of principle of judgment. The judgment of the Court was as follows : " The Court" " considering that the proceeding for rendering the said judgment executory ought by law to be a proceeding in the cause in which the said judgment was rendered, and that no original action apart from and indepenlent of the said cause can be by law brought for rendering the said judgment executory, doth dismiss the said actios &c.'» Action dismissed. *1 1» SUPERIOR COURT, 1853-4. No. 2121. Leclairc v. Crafp&er. FIRE-INSURANCE. Zt. was cessionaire of T. offMiillcuf dc fnn< iVodnntn, is not siill'icient cnuse for the rejection of his evidence. In \vt'i;,'hing nil the evidence in this case it must he home in mind ihnt, whenever i^ is to be shewn that testator has declined in stren.ith nf mintl \>y age, the (jtiestion is whether there is an int(lli<>;ent volition, .i". 492. Vo, Ret. Lignager—p. 6^2, Znd coL Vo. Loch et vcntea. In such a case fraud is presumed. Potkier, Retrait Lig. 1, Vol., 4io ed., Nos. 94-5, — Hcnrion do Pansey, 2^p- 181, 213. See also case of Lacoste v. Lussier, No. 1711, C. of K. B. Judgment for Plaintiff, 23rd Feb., 1843. In giving judgment in this case, Vallicre, C. J., said, that similar judgments had been given at Tliree Rivers. Also Stcphc?is and hefchvre^ No. 671, S. C, Judgment for Plaintiff, April 26lh, 1853. Sicottey for Defendjint, contended that fraud could not be presumed, that the censitairc had a right to defraud the seignior of his projits de ventcs by entering into any lawful transaction, that an exchange was a contract which he had a right to enter into, and that it did not bear lods et ventes. Cited Repert. Vo. Fraude. Smith, J. (dissenting) said, that not long ago he had concurred in a judgment in favor of Plaintiff in a case similar to this {Stcph€7is v. Le- fehvre ;) but since then he had had reason to change liis opinion . He found it laid down in all the books from Dumoulin down — in the author- ities cited by the Plaintiff — that in a case like the present where simul- ation is alledged against an acte authentique, there must be proof of simulation. The evidence arising from the Deeds themselves may be a presumption of fraud, but unless some evidence be given of simulation, the Deeds themselves must be taken to be what they purport to be on the face of them, and must be taken to be bona fide, what they appear to be, and although the intention to defraud the seignior may be presum- ed, yet this mere presumption of fraud, is no proof whatever of simula- tion. Guyot Fie fSy p. 232-34!. Rep. Vo. Fchattge, p. 58S. The presumption of fraud arising from the party remaining in possession mentioned in the last authority is under Art. 459 of the Coutume de Bourbonuais, Rep. Vo. Retrait Lignager, 492. Pothier, Retrait, iVos. 94 5. This authority of Pothier is founded on a special article of the Coutume d^Orlcans, and this is shewn by Guyot, Vo. Ret. Li- gnager above cited.* The learned Judge also cited Proud'hon, Fiefs,pp. 262-3 ,to show that the censitaire is allowed to make any contract that would deprive seig- nior of his lods — unless the Deed be proved to be simulated ; lods not being due even if it be shewn that Deeds have been passed in fraud. Also, Merlin, Rep. Vo. Fraude, p. 388. Non syjfidt probare fraudem nisi etiam probetur simulatio. II (the Plaintiff) doit • Here is the authority from Repertoire at length : *' Mais comme dans ces oc- casions, la fraude se pratique ordinairement par des voics sourdes et ditficilcs a du- couvrir, les coutumes ct la jurisprudence la pr^sument en deux cas. Le premier, lorsque {'heritage dun ne par I'acquereur en cuiitr'echange lui a 6ie revendu dans Pan du contrat. On vienl de voir que telle ebt ia disposition dc la Coutume de Norniandie ; c'est pareillement celle des Coutumes d'Orlians, Article 386; de Vitry, Art. 30; de Melun, Art. 142 ; de Sens, Art. 228 ; d'Auxerre, Art. 159 ; d'Anjou, Art. 4(>1 ; du Maine, Art. 412. C'est aussi ce qu'enseignent les coutumes muettcs, Dumoulin sur Faris, Art. 33 Close 2, no. 92 : '■ iraqucuu, de retractti, Art. 1 Close 14, no. 35, Loysel dans scs Institutes ('outumiercs, Liv. 3, Tit. 5 ; Pecquet de Livonniere, Traitc des I-'iefs, Liv. 5, Chap. 4 j et I'othier, du Uetrait, No. 94. !i 26 SUrERIOR COURT, 1854. prouver, aliud actum qunm scriptuin. And the authorities there cited Dumoulin, Tiraqueau, Busnage, D'Argentrey Lcdandc et Henrys. It" the Plaintitf's argCiinent were good, it would be so if the ailegation of a private sale were altogether omitted from the Declaration, and if not alledged, tlien the proof of simulation must be found in the Deeds themselves.* Day, J., There is not much difference between my learned brother and the majority of the Court as to the right of parties to defraud, (f to use the expression of the books,) the Seignior ; but the question is one of simulation — whether the transaction was really performed or not. My learned brother seems to think that there must be some in- trinsic evidence of the simulation, and that no intrinsic evidence is sutlicient. Smith, J., There might be intrinsic evidence on the face of the deeds, but there is not. Day, J., What the law in France meant by the expression " il est permis de fraudcr le seigneur, was simply that the Censitaire had the right to enter into any contract that he pleased by which he might avoid paying lods et ventes, but he must really perform the contract and not only appear to do so. In this case nothing can be plainer than that these are simulated deeds ; it is a much stronger case than Stephens v. Lefebvre. After briefly stating the transaction, his Honor remarked : that he could not con( eive what proof the Plaintiff could produce stronger than that contained in the deeds themselves. The judgment of the Court is for the Plaintiff, without interest claimed from the passing of the deeds. Ramsay, for Plaintiff. Counsel was not heard on the point of interest. Day^ J., There can be no doubt that interest is not due.f * It would seem that the Plaintiff might have claimed his lods et rentes on the Tlced of Exchange atledging that it was simulated, producing the other two Deeds as proofs of its simulation. V. Fonmaur, Tr. des Lods et Ventes, No. 839. f With afl possible deference to the opinion of the Court, as expressed by Mr. Justice Day, we are not altogether satisfied as to the claim of interest being so thoroughly unfounded as the ('ourt seems to hold. It will not be doubted that uttjniitt civils are due where there has been a mala fide retention of that which produces Ihem. A rule of law which necessarily flows from the principle, " nul ne doit profiltr de son dol,'" Domnt, Liv. III., Tit. 5, Sect. 3, Nos. 3, 4 et 16. This principle, we a(!mit, did not formerly extend to interest on oney ;— and why *? Because, it was declared to be illegal to charge interest at all, it being against the then received rules of religion and of morality ; but. these views having ceased to exist among the more enlightened portion of mankind and the positive law having enacted u rate at which interest ihall be recoverable, it may be asked, why money should not produce its -^ fruit civil" as well as every other commedity on the rule, cessante causi, cessat Ux. Fhere is now no law against it. SUPERIOR COURT, 1854. 27 23 Feb., 1854. Present : — Day, Smith and Mondelet (C), Justices. No. 2634. Lynch v. Pajtin. MOTION TO REJECT EXCEPTION D1LAT0IRE. Non-2Kiyment of costs in a former action cannot form the sub- ject of an e^cej)tion dilatoire. The Informant or Plaintiff, takes a proceeding by requite lihelUe against Defendant, under the 12 Vic., c. 4-1. 'i he Defendant pleads by an exception dilatoire that tlie Plaintiff is indebted to him in a certain sum, being the costs upon a former rcquete dismissed, that this requvtc is substantially the same as the former one, and that until [lay- ment of these costs all proceedings ought to be suspended. The Plaintiff moved to reject the exception dilatoire as irregular, the matters set forth in it not constituing matter for an exception dilatoire proper, and for other reasons. Upon the argument, Defendant contended that tltere was nothing to be found in the books which militates against his proceeding, but on the contrary much which justifies it ;~that Pijeau states as subject matter for such an exception, the absence of a Plain- tiff, which made him liable to give security for costs, — that this case was very analogous. MacKay ^- Austin, in support of motion. Chcrricr, Q. C, Dorion ^ Dorian, contra. The Court, (Day., J., dissenting) maintained the Plaintiff's motion.f No. 2610. Nye V. Macalister. CAPIAS. — SUFFICIENCY OF AFFIDAVIT. Motion to quash capias, the affidavit hdn^ insufficient Held, that it IS neccsstiry to ailed gc specially on face of affidavit all that is necessary to give right to the process. Nye, for Plaintift". Carter ^' Kerr, for Defendant. Day, J., The affidavit sets out that Defendant is indebted to the Deposant, (PlaintilT) in the sum of 10/, being the amount of two obligations due by defendant and transferred to Plaintiff. There is no statement of signification. The question is whether it is necessary to • See JlnU C. R., page 10. \ In the Kevue de Legislation of 1847-8 pp. 70-1, mcntinn is made of two causes in which the like doctrine nas he'd, but, the Editor oliscrve.-, in a note, ** This practice is plied to prescriptions. Rule declared absolute*^ No. 131. Ex-parte Uelanger. CERTI3RARI. Pominvillej for Petitioner. Day, J. This is an apphcation for a writ of certiorari to bring u^ * Vide D. M. p. ir. ;! f £33? HSBEnw 32 CIRCUIT COURT— 1854. the record of a cause from the Commissioners Court, In wliich Judge- ment had been rendorod on a Thursday without adjournment. This is no ground far a writ o( certiorari. I'his remedy is intended to reverse a Judt'ment where there is a colorai)le jurisdiction, not to try whether a man is a Judge or not. Such a Judgment as the one conipluined of would be an absolute nullity. Writ refused. No. 2368. Roivhottoni V. Scott, ACTION ON BILL OF EXCHANGE. This is an action on a bill of exchange drawn by the Plaintiff on the Defendant in favor of one Cas^elsand accepted by the rel'endant. The bill at maturity was not pjiid by the Defendant and Cnssels returned it to the Plaintiff. The Defendant demurred to the decment portant que le Notaire ne pouvait 6tre examine romme t^moin pour 6tablir la verit6 des faits contenus dans Tacte argu6 de faux. Jits D6- fendeurs firent motion pour faire reviser ce Jugement par la Cour en Terme. C'est en at rormellcrnent d^opinion de permettre aux Demandeurs en faux de prnc^der a PexameD du Notaire. y, No. 2146. La FabfiqUe de Vatulreuil v. Pagnuelo. Cetle action fut porl6e pour le recouvrement de certains dommaget caiiii^s k la Demandresse par le Defcndeur. Ces dommages sont prou- v€s par des paroissiens cutboliques de Vaudreuil. Le D^fendeur A objects lors de Penqu^te a leur audition sous le pr^texte que fenant partie de la Fabrique de Vaudreuil la Demandresse, ce prords se trou- mu dans Pinter6t des t^moins aussi bien que des autres paroisssiens et que partant ils se trouvaient int^re^is^s dans Pev6nement. La qucstioh 80uli'v6e 6tait de savoir si ces t6moins pnuvaient 6tre revjus a laire preuve et s^ils sont int6ress6s au degre proliib6 par la loi. Huherty Ouimet et Morin, pour la Demandresse. Lcrangcr, pour le Defendeur. La Cour consid^re la preuve de la Demandresse parfaitement 16gale et renvoie Pobjection du D6fendeur. Vide Merlin, vol. 17, Rep. 671, Vo. T^rooins Judiciaires, Rep, Juris. Guj'ot, Vo. T^moin et T^moi^nage* V 84 SUPERIOR COURT, 1854. /' No. 1195. Ezparte Cazclais, Rcquirant, Ramsay, Oppt, La partic qui veut a/querir iinc hypotheque doit spMfer dans VJlctc la mmme de denien dont se trouvera grive rimmcuble. * . Rninsay avait acquis d^une Madame Veuve Des^ve un immeuble dont tile avail Pusutru t seulement, la |)ropri^;t6 en 6tant & scs petits enfans. Cette acquisition tut faite pour une certaine somme de deniers que llnmsay devait garder en ses mains en en pnyant l'int6rSt jusqu^A r&ge de majority des enfans, 6poque k laquelle il devait payer le capital, sur la ratification de la dite vente par ces dernicrs. Au dit acte de vente est intervcnu un nomm6 Des^ve qui s'est port6 cnution vis-A-vis de Ramsay pour Pex^iution de toutes les clauses du dit con- trat, et d cette fm a bypotliequ6 un immeuble. Subs6quemment Des^ve a vendu k Cazelais Pimmeuble ainsi bvpotbequ6, et c'est du titre d'acquisition, que ce dernier demande ratincation k la Cour. Ramsay fait son opposition k tout Jugement de Ratification a moins d^6tre maintcnu dans ses droits d'hypoth^que fond6s sur Tin- scription de son titre suivant la loi. Cazelais k contest^ par Defense en droit Popposition de Ramsay, pr6tendant qu^il n'avait pas d'liypoth(;que sur Pimmeuble, vu que par Pa<'te de cautionnement, Pimmeuble n^avait kxb afT^cte ik aucune somme sp^cifique, tel que voulu par la loi, cVst sur le m6nte de cette Defense en droit que li Cour avait k prononcer Jugement. Moreau, LeBlanc et Cassidy, pour Cazelais. W. G. Mack, pour Ramsay. Day, J. Si POpposant Ramsay eut voulu acquerir une hypoth6que sur le dit immeuble il devait faire mention d'une somme de deniers dans Pacte de cautionnement. La Cour doit maintenir la Defense en droit et dcbouter Popposition. No. 189. Perrigo, Appelant v. Hibbard, IntimL Jug6. Que V engagement d^un commis mardiafid est un fait commercial, quHl a droit au benefice des lois qui regissent la preure en fait de commerce, pour etablir le montant du salaire convenu et la durie de I'engagement. La pr^sente action a 6t6 port^e a la Cour de Circuit pour le recou- Trement de £50 0, balance sur huit mois de salaire, di^s sous les circoastances suivantes. SUPERIOR COURT, 1854. 81 Le 15ao{^t, 18r)2, PAppelant Hmt nu service artemeiit du feu, moyemiant une snmine de jS 1 50 pur ann6e. Vera le com- mencement dc septembre, de la m6me ann6e, i In demandc de Plntim^i il luissn le service de la Corporation pourci'liii de ce dernier moyennant le m6ine salaire payable menn'U'llcnunt. Au commtncemcnt du mois d'avril suivant, JMntim^ n'lr oie I'Appelant. Ce dernier porte la pr6sente action pour balnnce de snlaire. LMntiin6 aynnt ni6 avoir jamais engage I'Appclant pour aucune p^rinde de temps fui'e, lea par- ties all(^rt>nt a I'rnqufite. L^Appdant ttiblit IVngagement et sa dur6e par un t{.>moignagc verbal. L'lntim^ de son c6t6 ne lit nuiune preuve, mais tors de I argument au m6rite s'nppuya sur Toblection entr^'e au t('inoignan;e verbal pioduit en cette cause et dcmanda le d6bout6 de Taction comme n''6t)int suppoit6e d'aucune preuve par 6crit, seule preuve admissible dans le cas actuel. La Cour de Circuit par son .Tuoement du 1 1 novembre dernier a accoid6 les conclusions du Utfendeur et a il6boute Piiction. C*est ce Jugement que la Cour Sup6rieure est appelee a reviser. Mftrenu, Lrhlnnc ^ Cassidi/, pour PAppelant. A. ^ G. Robertson, pour riiitim6. Day, J. Cette action a 6t6 port^e par un commis marchand pour le recouvrement d'une balance de son salnire. T('Ut« la preuve de son engagement est veibale. La Coui Int'^i ieure a con»id6r6 cette preuve comme insuffisante. La premi(>re question qui se pr^sente est de savoir si le commis a droit au b6ii6fice des lois qui tdgisscnt la preuve en fait dc commerce. La Cour ne nourrit aucun doute sur ce point. C'est un fait commer- cial. La secnnde questiun est de s:ivoir si cette preuve adinisecnmme bonne, est suffisante pour lui faire obtenir son Jugement. La Cour la croit suffisante et en cons6quence met de cdt6 le .lug«ment de la Cour Inf6rieure. "" N. B. L'Intim6 a donn^ avis d^appcl au Banc de la Reine. i No. 301. Orvh V. Valigny. LIABILITr OF COMMON CARRIER FOR DELAY. Rose, Q. C, 4* Monky for Plaintiff. Papin, for Defendant. Day, .T., This is an action for the re- overv of some 300/. damaees for injury done to a racgo of "rain and potatoes sliipj el bv the Plain- tiff on board of the Defendant's barge, bv the d-iau't of (he Defendant carrying the said cargo to Burlington, the place to which the cargo was ^ SUPERIOR COQRT, 1851. shipped, without delay. There are two counts in the declaration, hy ihre first the Plaintiff alleg«»s tliat Defend:int undertook to deliver the cargo* at Burlington on the 1st Jii'y. The first count is not proved ; but by the second count the PI tintiff alleges that Defendant was obliged to* use all )ue diligence in transmitting the cargo. It appears that the barge left the North Gore, on the iiidean Canal, on the '21st of June, and arrived at Montreal on the 26th, wherp it remained till the 6th of July. The Court is of opinion that the Plaintiff has made out that the difference between the value of the articles shipped by him had they arrived in a good state, and their value in the state they were received- at Burlington, is 275/. The only question, iher^-fore, that remains is as to the degree of diligence Plaintiff was required to use. We are of opinion> that tin* fai t of tlie barge being detained ten or t>Velve days at Montreal, sufficiently establishes a want of due diligeni e on the part of the Defendant. The judgment is therefore in favor of Pkintiflf for the amount of damage that has been proTed. No. 2263. JJall v. Lamhe Sf Scriver and at.j Int. Party. Rose, Q. C, Sf Monk, for Plaintiff. A. if G. Bjoberlson, for Defendant. jRose, Q. C. SfMonk, for Intervening Party. Day, J., This is a petition by Executors to be allowed to intervene in a petitory action. It has be»n met by a defense en droit, that they are not entitled to take up instance in such an action. This demurrer are not enti is well founded. Demurrer maintained. No. 663. M CarLhy, Ap/t. v. Laurier, Respt* VERBAL SLANDER. This is an appeal brought from a judgment of the Circuit Court sitting in the Circuit of L'Assompticn. The action was brought in the Court below by a sworn Surveyor for the recovery of 20/. damages for verbal sl-nJer, the derliratinn alh>ging that the DeW danl had maliciously sail of the Plai tiff in presence of sevenil persons that he, the Plaintiff, *• tivaj't fait., ivvmte H fnrgc firs confrafs,'* anil had used other cxpressious in the sense that the Plaintiff had *'forgi SUPERIOR COURT, 1R54. 37 tUrs flexes." The plea specially denied tlie facts. Tt appftars that M'Carthy ai.d one Beaupr^ were engaut'd having the boundary lines •of their laifiils drawn, and that the said Lanrier was the surveyor employed by Beaupr6. Four witnesses were examined on the part of the Plaintiff, all of whoiyj stated to the effect that Pliintiff had made ♦' dea tttres''' for one Be upr6 during tlie previons evenitig, and in explanation Plaintiff attempted to prove what was meant by this expression. This evidence was objected to, and Defend:int^s objection was maintained there beinu; no intent laid in the declaration. The judgment of (he Court below was in favor of Plaintiff, condemning Inm ■ to pay 4/. damages and costs. From this judgment the present appeal was brought. Lehlanc Sf Cassidy, in support. Turgeon, Attorney for Plaintiff in Court below. JLaflamne, Counsel in Appeal, contra. Day, J., This Court is always di«sposed if possible to sustain the jud^imeiits of inferior tribunals, but in tliis case it is impnsible, — neither the words alleged in the declaration nor any thing equal to them hai been proved. There being no intent laid in the declaration, no proof of meaning of words could be made. Appeal mmntaiined^ No. 1938. Macfarlane v. Rodden & a1. ■> COMPENSATION. This was an action brought for the recovery of the balance of a jorfit Und !*everal promissory note, given by the De'endants to the Pliinfiff, the demand was met by an exception of compcnsttion, the Defendnnts praying to be allowed to set-off a debt due hy the Plaintiff to William Rodden one of the said Defemlants. Bethune Sf Dunlin, for Plaintiff. A. Sf G. Robertson, for Defendants. Day, J. Thi? action is met hy off-set of a debt alleaed ^o "be due bv Plaintiff to one of Defendants. This exception of cor.pensntion must be dismissed. Exception dismissed. 38 SUPEUIOR COURT, IS53-4. ii I; 'i 20 Feby. Present : — Day, Smith and Mondelet, (C), /. /. No. 2087. Simard y,. Jenkins. Held, that Jurors actinrr within the limits of their functions cart" not be questioned as to whether the findinp of their verdict proceeded from ma/ice, and that if they cannot ag/ee on a verdict any one of them is equally protected as the whole ill eorjrremn}!^ his own individual ojdnion of the case. The Defend lilt in liiis case was one of the members of a Coroner's Jury, empannelled to iiive'«tia;i»te the cause of death of certain persons shot on the 9lh of June, 18r>3, near Zion Church in the City of Mon- treal. The Plaintiff was one of the City Police, present at the time these persons where shot, and was summoned to give his evidence be- fore the Coroner. The jury could not agree upon a verdict, and nine of the juror*, of whom the Defendant was one, in giving their views as to the evidence, commentiMl in particular on that of Plaintiff and of four other witnesses in the following terms: " The Jurors cannot omit finding that in the course of their-investigation, evidence of the most conflicting and irreconcilable character was given, which, however, de- sirous they have been to attribute it to the mere erroneous im, ression of witnesses, the Jurors cannot conceal, has painlully impressed them as wilful and culpable perversinns of truth, so injurious and dangerous in their consequences to Society, that they desire to direct the attention of the authorities to the depositions of , , , J. B. Simard, an(V-; tt." The Plaintiff in consequence brought his action against the Defendant as one of the persons who had written, signed and published the above, alleging that the said Defendant was moved by malice to return this special verdict, and that it contained a diffamatory libel. PI lintiff laid his damages at .^00/. Ther« were, two other counts in the declaration ; on the second count it was in effect alleged that Defendant was a juror on the Coroner's Jury and that it was in deliv«^ring his speciil verdict to the Coroner that he made use of the terms reflecting upon Plaintiff; and the third count was for libel without alleging that the Defend mt was a juror. The Defendant met this action by a demurrer, in which, am'>ng other reasons he alli'gei tl at there could be no malice, — that as a juror called upon to give his ven'ict he was not liable for what he said on the jury, and that the declaration disclosed no libel. Badgley^ Q. C, Sf Ablntt, in support of demurrer. Rose, t^. C, Counsel. L'lranger, contra. M>«6?f/e«, ('O J, J., dissenting, said, there are nine coses of Libel agiinst Jurors,of the Coroner's. I ury enp.mnelled to inquire into he cause ol de ith, of persons shot on the 9th of June last. 'I he queslinn comes up before the court on demurrer. I think the demurrer should not be maintained. As to the notice, I do not thuik that Jurors are public officers, the Statute 14 & 15 Vic. c. 54, says, " persons discharging public duties.'* However the majority of the Court is of opinion (hat this que&tioD does not arise now. The next question is, were the nint SUPERIOR COURT, 1854. dd jurors engaged in the dis'hargeof their public duty as jurors when this libel is aileijed to have been published. Let us suppose they were, and that cloakini tliemxelves under tht-ir position they had maliciously, ond corruptly, charged Plaintiff w th perjury Even in this case would they be irresponsible ? Can there be such a thing as irresponsibility on the part of any one. 1 hold that there cannot. Neither Judge nor Juror is absolutely irresponsible. Put Plaintitf has gone further, and tieclared, that the requisite number of jurors, eould not agree on a verdict, there was then no presentment, therefore these nine persons trere not acting as a " Corps de Jury.'*'' For if nine jurors are irres- ponsible, then so is one. What would this lead to 1 Suppose on fit jury there is a juror who would not legard his oath, and who was desi- rous of wreaking his "engeance on one who had been a witness, he could do so With impunity, nothing could touch him. Suppose the Bishop of Montreal, or the Chief Justice of" the Queen's Pench or one •«f i-b? fi'st merchants of this city had been a witness, and that such an observation had been m i«e sf lijj5, by one juror. Will it be said, that his chararter inu^t be left to the counteracl ng i«u::«n«« o*' public opinion. I have great respect for public opinion — " mais comhien faut il de sots, pour former le public ? It has been said that Judges are irresponsible ; but it is not so, they are responsible to Parliament. If a Judi^e had the aud icity to use his office, to wie ik his vengeance on his fellow man, he would, and ought to be responsible. In the two last Connts there is not a word about the Coroner's Jury, I therefore take it, they at all events are sufficient, and on%hX to go to a jury. I am surprised any one should desire to avoid going to a jury. Rose, Q. C, I hope that observation, is not intended as a reflection on Counsel ? Mondelet, ('C.J, J., I am still more surprised that you should im- magine any such thing. It is Slid that we shall get no more witnesses if the jury are not to remark on contra lictions ; but that ruts both ways. V\'il| not wit- nesses be less likely lo go, if any one juror m ly accuse him openly of perjury ? To-day it is Simard, to-morrr w it may be the first man in the community who may be thus slindered. If .such things were to be permitted by Courts of Justice, the difficulties arising from them could only be settled hy the bowie knife or the < arabine. It has been said that the Coroner and his Jury are institutions de- rived from Englind, and that their exercise must be ruled by hinglish Law. ' But it is a maxim of our Law, founded on the Roman Law, that if a mm does an irtjury he must repair it. Tt has also been contended that there is no libel. Is it no libel to accuse a man of perjury ? Day, J., This case with eight others is suhinitted on a defense en droit. It involves a question of great importance, that of the immunity of persons en.jage'1 in the administration of justice. I shall not attempt to settle the que tion, on first principles, but shall reler to direct authority in support of etch step of t|je process of reasoning. The action is for damages for Defi ndunt having with eight 40 SUPERIOR COtTRr, tS54. ■Hi': others retnrned in^o Coroner's Court a specitil verdict, in which ffief dirccteii to the attention of the authorities the evidence given by the Plaintiff as indicatmp; perjury. The first count of the declaration says, that the libel coinpFaiiied of was signed and produced by Defendant, along wiih eight others, a» Jurors on a Coroner's Jury. That they were acting afs Jurors ap- pears on the face of the declamtion. The second count also shews that Defendant acted as a Juror. The third' count is for libel on same day as the others, but without' stating that F'laintiff acted as a' Juror. Damages are also Faid for .5000/. The declaration alleges that all this was done fal^efy ancf malic iousTy. There is a defense en droit to the first cotmt, and one to the second and third counts. It is contenled that Defendant falls under 14< & l.T Vic, c. 54., by which it is enacted tha*, *' no writ shall be sent out. against a Justice of the Peace, or other oflGcer or persori fuIfilTing any public duty, &c., " unless notice in writing of such intended writ, speci- f^ng the cause of action with reasonable clearmss, &c.," be given one- calendar month before issuing out such writ. The Court, without decid- ing the queslioa as to the necessity of notice, is of opinion that it is not necessary to allege its service in the declaration, the notice, if requir- ed, may be produced at the trial. It appears by tlie 9lh section of this* act that the notice shaH be given to every person bond, fide acting in> tlie performance of a public dut)', afthnugh he may have exceeded his. jurisdiction. But this cannot be decided until the trial, it is not, th^'re- fore, necessary to aHege it. This is the rule in England. We give no opinion as to Defendant's being entitled to notice. The second point raised is that Defendant was acting as a juror. Hfe says, first, this quaKty of juror is a bar to every form of action^ that the Plaintiff cannot examine whether or not there was malice, — that the condtact of no jud^e or of no jyror is liable to being ex-^ amined m this way. I do not think this propositton^in the unlimited way in which it is put^ is supported by authority. If a judge go beyond the scope of his powers he may not be liable ; butl would not extend' this to jurors. The judge b a permanent officer and has jurisdi' tion over eve ything that comes within his Court, and mny be called upon: to expnss his ifiews on something that is not directly before him; Th<^ juror has & specific function and'a specific case. If he goes beyond that case, he is liable. In ref, rence- to the general reasoning as to the responsibility of a judge, I may remark, that there can be no doubt that no man caa m iliciously commit a wilful act without being responsible. But this may be infringed on. So in piolecling the interest of Society, the- tnterests of the many overri. But it has been said ithiit this action must be tried by ihe law or Fiance ivnd not by the law of Enoiaiid. Tlie Coroner is derived from the criminal law of England, 4nd that criminal law has be«n applied here. A juior is compelled to appear, and * proceeds and acts, under th;it English law. All his |)Owers are liinitetl by that law. Is it not then right that be should also be protected by 'the system wisch exacted his services 1 lf.it ^vere not so, the situation of the juror would be lamentable in the extreme. A« to whether Defendant wl.i'e acting within the limits of his authority has this immunity ; see Sutton v. Jolirsan, 1 Term R. 513: "....it appears that the law raises a presumption in favor of jurors, and will not even admit of proof t-o tike contrary ; de- 'partin;; herein from the common nnx.im that the piesumption shall only stand till the contrary be proved. This rule must have been adopted on the p incijde stated by Lord Coke, namely, that it would deter jurors from the public service if they were liable to such an action in every •case, where, in the opinion of the parties against wltom they had decided, thfir decision proceeded from malicious motives, &c." The essence of the case is that no action shall lie, that be shall not be questioned, that is r^lice his an ab^lute bar. To a(lo|)t a dilTerent rule would be to ifritter it away. Noboily is answerable if lie shows that be had rea- son for s tying what he did, and that it was true. The issue of slander in every « ise is whether the party accused act.d midiciously. But the juror is put in a different posttion, and this is the intention of the law. 2 Hawkins PC. c. 73, Sect. 8 p., 130 ''no .presentment of a "Grand .Jury can be a libel,, " lb. p. 123. Sect. 5. Borthwick Libel, pp. 201-2. Stirkie Libel, PreUmioary Discourse p. Kxix. note K. So in the IJnited Slates. I Trait6 de la diffamation, de i'injure et de I'outrage paa* Grellet Demazeau, pp. 165-6. Tims the Kule apjdies m Er-;;l»nd, in Scot- land, in tbi! United Stales, and in France. As to malice, there is a good dea;l of confusion araony tht early writers ; but now the law is •Sftt'ed. Mjvlice in fact means a sentiment of malignity or ill-will. This is not tlie signification in Law Books. Even in libel it may be jocular, and yet their may be malice, and the party would he liable. The slat-" of the heart has nothing 'to do ni^ith liability. So with the man who shoots into a crowd. So in an action for malicious prosecutioR, if a party acted on probable cnuse, no matter how maliciously he acted. It is dear then that the ordinary ^meaning of malice k not the same a« malice in Law. Malice in Law4s the absence of legal justification. He that injures another without justification is liable. Tins enquiry is not as to the state of feelings but whether the Defendant noted with legal ^justification. If he did, it does not signify whether the words alleged l)e true or not. Skirkie, Lihe\, p., 220. In « ases of Jurors, the Juivtification is that they acted as Jurors. TLis is where there is a 42 SUPFRIOR COURT, 1853, ■v-iv: ,1 t k ! perfect verdict — where twelve agree. In the present case there » nothing violent in the language. If what is said be true, it would be difficult to find expressions less harsh. The document shews great labor and toil in enouncing their views. It decbres the result of their deliberations. It involved the necessity of enquiry into all the facts, the nature of the assemblage. It states the firing of the troops without the order of the officers, it reprobates the practice of parties carrying arms, and then comes the closing paragraph which Pluin4iff complains of. Suppose a Grand Jury in coming into Court were to say that a Bill was not found, because the witnesses named were not to be be- lieved, or that a Petit Jury should say so, — could they be subject to an action of damages ? Must the Jury be silent in the Chamber. How can they express their opinion if they cannot canvass the evidence I Does not a .Tudge give the grounds upon whcih his decision is based ? The case of the Juror, and of the JuJge is the same. If this immunity be given to an ordinary jury, much more so should it be given to a Coroner's Jury. The passage from Hawkins, shews that they are exempt from pros- ecution, in respect "of there enquiry," — Borthwick, " in expressing the opinion of the Court." So Starkie, — " all communications by Judges and Jurors as such." So in Cou. ts Martial. There is a case which shows bow far this immunity is carried, in the course of a trial a juror said to a witness, "your a d d perjured villain,'' upon this an action was brought, and the juror was held not to b 'Able, because it was said when acting as a juror. It therefore appears that if the words complained of by Plaintiff were part of a perfect verdict, there could be no action. But has a minority the same right ? It is plain that the prote tion is to the in- dividual and not to the body. The responsibility and obligations are several. Each takes the oath himself and he must, therefore, be pro- tected individually for his own opinion. It was the Coroner's duty when they did not agree to ask each juror his opinion, and he was obliged to give it. If he found that twelve agreed he must have put. their opinion in effect, and have made it a verdict. The protection is to each member of the body. For if they were obliged to give a full and a true opinion, aad if they were not able to give a verdict, was it not their duty to express their view of the evidence ? If it was their duty to express their opinion, they fall within the law. Jarvison Coroners, p. . — Impey Coroners, p. 519. — 2 Hale, Pit-as of the Crown, p. 297, Note C. Both reasoning and authority, therfore, show that they were jastiBable. It therefore appears, that jurors acting within the limits of their functions are to be protected without reference to their motives. 2. That the expression of opinion in this case falls within the legiti- mate functions of Defendant as a juror. 3. That the same inimunity that applies to jurors rendering a perfect vertlict applies to all or to one juror if he keeps within the limits of uis functions. As to the second count it also appears there that Defendaat was act- ing as a juror .^ .; . SUPERIOR COURT, 1853. 43 The third count is more ambiguous, it does not appear there so clearly that Defendant was acting as a juror. It states that on the lltlj of July Defendant maliciously, A:c., defamed the Plaintiff. Had this Count been isolated then on this Count they must have gone to a jury ; but, on looking at the declaration, we (ind that there is a long detail of facts set out as inducement, and it is uncertain whether this inducement applies to the first count or to the whole declaration. The libel is always laid as of the same day, the same charge and the same damage. There is no general allegation ; each count lays damage at SiOOOl, and the declaration asks oOOO/. Also the word " other" is omitted ; the Count does not say that there were " other injuries." In England if the word other was left out the Court would order the count to be struck out. But Defendant alleges that in 2nd and 3rd counts the causes are the Same as in the 1st count, and Plaintiff does not traverse this, he merely says that the allegations of the declaration are sufficient in law. Action dismissed. Rose, Q. C, with double costs 1 Day^ J., I dont think Defendant is entitled to it. No. 178. Lau/in v. Pollock, li- ciaT to him as he cannot come before us. The great practical evils that would arise were Plaintiff allowed to fix any delay he chose would be so great that we think this motion should be granted. A similnr decision has been rendered in the Superior Court »it Quebec. The Plaintiff's Counsel argued against granting the motion that a similar mo- tion h.id been refused in a case where there had been a saisie arrit liefore judgment ; but the cases are different. I do not think the Court could order a Summons to be returned before the return day. The 3 sec- tion pf the Judicature Act only applies to writs of summons. The judgment was motive as follows : ** The Court having heard the parlies, by their Counsel, upon the motion maile in this cause on the 17th day of March, instant, Ac," on behalf of Michael Cox, &c.," '* having examined the proceeding's and deliberated, and inasmuch as the delay granted by law within which any Dfienilant can be summoned or compelled to appear in this Court is by law established in favor of the Defendant. It is ordereil that the process ad respondendum in this cause issued, to wit, the writ of capias ad respoiidendumf returnable into this Court on the third day of April next, and under which the Defendant is now detained in the Common Jail of this District, be by the Sheriff of this District re- turned before this Court within twenty-four hours of the signification of this Order." , Fisher v. Draycott, ^ Scott, Garnishee. Held, that an Auctioneer receiving the goods of an insolvent party, cannot off -set the proceeds againet a debt due to himself , but is liable to account to the creditors of the insolvent party. SUPERIOR COURT, 1854.. 45 Tills was a contestation of the Declaration made by the Garnishee. The Defemlants premises were destroyed by fire, and a portion of his goods were saved, and placed in the hands of Young ^ Bcnning. The latter parties gave them up to the Garnishee, an Auctioneer, upon the order of the Defendant, the Garnishee undertaking to pay them a debt of JEoO. due by Defendant. The PI lintifl' having a juition descrilted, or of a pari theri-of, ami thiit by reason thereof, and by Uivr the s:iiil contostilinn of the riainlilT ouglit to be iniintiined. But con- si'lerin-f nevertheh'ss that the Opposants have been deceived and h'd into error in the proceeding by them taken in the said opposition claimed — by reason of the PhiintilT having falsely pretended to be the owner and proprietor thereof. — Doth maintain the said contestation of the PlaintilV, but without costs.'' No. 2fi23. Mnffat eh al v. Bouthillier. The Plaintifl's in this cause brought their action ngains the Defen- dant, Colh'ctor of Customs at the Port of AJontreol, to n cover bsnk thi» sum of 50/ ')&-, whici) they aHeged to have overpaid to hun (under protrst), in paying the ud laloretn dtity on a quantity of French brandy iniportrd by them, the duly on which brandy the said Defen- dant had charged at the value thereof at the time of shipment and not at the time of purchase. The Defendant answered this dcjn inil in law on the ground that Plaintiffs had not alhged that the price of the said brandy w.is the value at the time of exportation. Dunhp, in support. Jiosc, Q. C, 4" Monk, contra. Day, J., This case comes up on hearing on law. The only question is, whether the ad valorem duty should be charged on the value of the goods at the time of purchase in France, or at the time of exportation. It is entirely a question of the interpretation of Statutes. The authority from Howard's Reports don't ht Ip us much, for unless Sta- tutes are word for word, one cannot reason from one «ase to another. Our legislation on this suhj< ct has been progressive. The first Act to which I sliall refer is the 10 & 11 V^ic. c. 31. At section 13 we find that where the duties imposed upon goods imported into this Province " are charged" according to the value thereof, such value shall be the " invoice value of said goods at the place whence the same were im- ported, with the addition of 10/ per centum thereon," which in- voice value hud to be attested to be the true invoice value by the im- porter or his a>jent upon oath. At first this would seem to support the pretention of Plaintiffs ; but th*' next Statute on this subjett — the 12 Vic. c. 1, s. T) — provides, that where the duty on any goods imported into thi> Province shall be impo>ed according to the value thereof, " such value hhall Ite un lerstood to be the actual co^t value theteof in the principal m irk'ts in tlie •• uiiiry where tlie s;ime were purchased and whence they were exported to this Province, or if such goods were iii SUrEIlIOa COURT, 18.n. 49 )r nr« )Hitiou »y ltt\T t con- nd l»'J tiHilion be the lion of Dcfen- (1 (uniler Frt'iich Defeu- t anil not und that was the question Uie of the portation. es. The nless Sta- 1 another, rst Ait to 13 we find 5 Province liall be the B were iin- wltich in- by the i«n- support the , t— the 12 Is hnported lue thereof, c thereof in rchased and goods were purchased in one country nnd exported to this onunt.y from another country, then in iht; |iiin('i|Ktl ni.uktts <>l the coiuilrv where >ucli ^ood?) were purchised by the pernnn or per>onH inipoting the siune into this Province ; aud it Khali be the duty of tsich atiJ cvfiy AppnuHer nnd of every Collector when actni;^ n.s sucli, by all reasonab'e ways and means in his powtM' to aseertiin, e^tniitennd appraise the true and actual m irkct value and wholesale price as aforesiid, of any gnoil.s to bo appraised by him, any invone or allidivil to tlie contrary notwiihstand- iMg, in order to estnnite and ascertain the value upon which duty is to be charf»ed as aforesaid." This lut established a new rule according to which duty was to be charged upon the nctud cash value la lie print i- |ial markets of the country from whence goods were iuij>orted by the persons importing the same. IMie effect (,f the 12 Vic. is t\T()fold. Tt tikes away the rule of the invoice as a stan<)ard of value, and establislxs instead the v:ilue Iroin the principal markets in the country whence goods were imported, and it provides that value shall be fmal by appraisement; thus throwing over the alTiJavitand invoice. There is nothiag special in tiie languaue which expresses that the value is to be that at which tie thing was purchased, but, taken as a relaxation of the former rule, it woidd appear ihat it is tin value at the time of exportation. ILcrc we see the progressive legislation ; by the li st rule it was the value at the time of purcliase — and now another rule is introduced which suggests the idea that it was the value at time ol" expoi t tion. It was not, however, on. this (lause that th(^ parlies proceeded, but on the 3 sect, of the lu Vic, c. 85, which provides, that the vuluc on which duty is to be charged on goods import'^d into this Provinr.'C shall be understood to he the fair market value thereof in the princip;d markets of the country whence the same were exported directly to this Province. And it shall be the duty of ea^ h and every Appraiser and of every Collector when acting as such, by all reason and all ways and means in his power to ascertain the fair market value as aforesaid of any goods to be appraised by him. and to estimate and appraise the value lor duty for such goods at their fair market v il ;e as af< resaid ; Provided always, that by any departmental order authorized by the (iovernor, it may be provided that in the cases and on the contlitions to be mentioned in such order, and while the same >hall he in foice, f,'.oods Itimd Jkic exported to this Province from any < ou, try, but passing ni tiaimhi through another country, shall be vahud for duty as it they were imported directly from such first mentioned country." 1 liis clause must be compared with 12 Vic. The wonl dirrdly is not to be fou^d in the previous Statute, it would therefore, seem, that if goods bought in another country were brought into the United Stales, and from that here, that the value taken should be the value in the United States, from which they were imported directly to this Pro\ince, otherwise the proviso in this last clause would he u*eh ss. The Court is, therefore, of opinion that t!;e value on w! ic h duty is to be charged is the value at the plice whence it was directly exported to this country. The judgment of the Court is motive f a. d is as follows : — % i )■ 50 SUPERIOR COURT, 1854. " The Court having heard the parties, by their Counsel, upon the law issue raised by the demurrer, pleaded by the Defendant to the action, and demand of the Plaintiff, having examined the declaration and pleadings in this cause, and having deliberated thereon, considering that the Defendant in his official capacity of Collector of Her Majesty's Customs at the Port of Montreal, was by law entitled and bound to exact and receive from the Plaiiitift's for and upon the goods and mer- chandize in their declaration mentioned the duty of customs by law estahlished, according to the actual cash value of such goods and mer- chandize in the principle markets of the country whence they were im- ported into this Province, that is to say in the principal markets of France; at the time the said goods and merchandize were exported therelrom. And considering that it doth not appear by the said de- claration that the Defendant in his said official capacity hath exacted or received from the Phnntiff any other or greater sum than by l.»w he was entitled to demand for duty of customs for and upon the said goods and merchandize, or that by reason of any matter or thing in and by the said declaration alleged, the Plaintiffs are entitle'' to* recover from the Defendant any sum of money whatever, maintaining the said defense en droits doth dismiss the said action, with costs." No. 201. Lnranger Appt., v. Perraidt, Respt. Held, timt Lessee cannot quietly enjmj lease until rent is demanded of hini^ and then complain of some damage caused by landlord as reason for non-payment of rent. Loranger, for Appellant. C artier Sf Berthelot, for Respondant. Day, .r.. This is an appeal from the Circuit Court. The action was or- iginally broujiht for the recovery of one quarter's rent of a shop and premises leased by Llespondenito Appellant. In the declaration PI tintiff alleged that by the lease it had been stipulated that Plaintiff should not be liable for repairs. Defendant met the action by two exceptions. One praying for the reduction of the rent on account of damages, and the other compensation. By both of these exceptions Defendant ad- mitted this clause in the Deed of Lease ; but said that owing to some fault in the construction of the buildings or from the want of proper dniins t*e rain and water from the melting of the snow had filled the cellar and injured the goods of Defendant. Plaintiff answered these exceptions in law, and Circuit Judge dismissed the exceptions, and Plaintiff then went on exparte and got judgment for £25. This appeal was broujiht on ground that the judgments oi demurrers were had in law. Respondent answered thiit these judgments and demurrers were- final judgments, and that time for appeal was over, and that the said judgments or demurrers were good and well SUPERIOR COURT, 1854. 51 founded in law. We are of opinion that the judgments of the Court below were correct. It is true Defendant protested against Pluintiff in December, but he paid rent in the February following, and went on to enjoy the premises. This Court thinks thai party rannot go on quietly to enjoy lease and all at once, when he is asked for the rent, refuse to pay it. He should complain at once. This was the rule in Boulanget v. Bauire, No. 278 of 1851, L. C. Reports, p. 393. The Respondent also cited Pothier, Loua^e No. ^^t\.— Instruction sur les covventiotis. lavage, 194-5. — 2 Bovrjon,c. 6,s. 4,/?. 53. —Prov. St.) 3 Wm. IV., c. 1, s. 2. » Appeal dismissed. No. 261. Tlie Coporation of the Portuguese Jews of Montreal v. David and at.., Executors, <^6-., and Holmes, es qualite par reprise (rinstance. , This was an action brought aifainst the Executnis and representa- tives of the estate of the late Alexander Hart, for a sum of money bequeathed by the said late Alexander Hart to the said PlaintifT. Holmes had been appohited sequesi.re in place of Molson, one of the testam»*ntary executors of ihe last will and testament of the snid late Alexander Hart. The Piaintitf petitioned to have the sequestre brought into the cause to take up the instance. The seqvesfre having appeared demurre«i to the Hf livered over to Holmes as sequestre. As sequestre Hohnes is not liable, but judgment has declared him to be so. Is^this judgment Aj'ugement nid? Pothierin his Obligations, No. 865, tells us what ^jugement nul is : — it is a judgment rendered centre la forme judiciare. This judgment in my opinion binds the estate and all concerned in it. Day. J., Giving the judgment of the Court, said, that the Portu- guese Jews \^ere not parties to the judgment which constituted Holmes sequestre, and we have nothing to say about this jud>>ment. I he following is the judgment of the Court : — '* The Court haring heard the Plaint ifll* and the said Willianri E. Holmes, by their Counsel, U| on the demurrer of the said William E. Holmes to that part of the demand of the said Plaint'fls par reprise d^iustanie, in which they declared against the said William E. Holmes in the quality of sp^^ps^re, havinu; examined the proceedinte being an accommodat'o i not« for the intervening Party, and giv**n hy him as colhiterul sfcurity, and no account having be<'n rendered oft' e consignment, and having been transferred to Plaintiff after maMirity hi^ took it with all the equities. Moreau, LeBlanc Sf Cassidij, for Plaintiff. R. Laflamme^ for Intervening Party. Day, J., There can be no doulit that the Tntervening's Party's law is good if his position be true. We think Int 'rvtn:n>> 'party has made out that the note was given as collate- al security, anil transferred after maturity, and that no account of the teas was rendered. Judj^ment for Intervening Party. No. 370. Fuller, Appt., v. Jones, Respt. This action was brought in the Circuit Court sitting in the St. John's Circuit, by the Respondent, for the recovery of 2.'/ 7s \\d tolls on a bridge beloni^ing to the Respondent, built by him under the authority of the 6 Geo., c. 29, and incurred by the Appellant for a stage-coach which passed on the said biiilge. Defendant ailmitted the passing of his coach on the briJge, but said that the roach in question carried Her Majesty's mails, and was exempt from all toll on the said bridge under the 7 section ot the said Act. Moreau, LeBlanc Sf Cassidy, for the Appellant. Badgley, i}. C, Counsel. . Ijciberge 4* Laflame, for Respondent. Rose, Q. C, Counsel. Day, J., The whole case lies on the interpretation to be given to the section of the act cited by Respondent. The general rule is that alt StrERlOR COURT, 1854. S9 rftrnages and passengers mnliing use of the said bridge shall pay cer- tain tolls ac( ording to the tarifl' subject to the restriction contained in the 7 section, which is in these words: " that no person, horse or car- riage, employed in conveying a mail or letters under the authority of ilis Majesty's Post Office, nor for the horses, or carriages laden or unladen, and drivers, attending officers and soldiers of His Majesty's Forces or of the Militia, whilst upon their march, or on duty, nor the said officers or soldiers, nor any of them, nor carriages atid drivers, dr guards sent with prisoneis of any description, as well going as coming, provided they are not otherwise loaded, shall be chargeable with any toll or rate whatsoever." This Statute is not quite clear, it exempts three classes, and the only question is whether the proviso at the end applies to the whole three classes or only to the last. The strictly f;rammatica} construction doubtless would make it apply only to the ast ; but the intention of tlip law is evident. Were it only to apply to the last of these classes a mail contractor might carry a caravan lull of people under cover of a single mail bag. Mondclety (C.) J., concurred, « A^ecd dismissed. An argument of convenience was advanced at the hearing of the case in support of the apneal which might be considered almost as strong in fiuor of the Aj,'p ■ ,t ns th tt m ide use of by the Court in favor of the Respondant. It v ,.. . if this^>;r;mo were to be applied to the whole three classes exemp. J, Her Majesty's mails might be stopped and rifled each time they passed, and be considered loaded if the smallest article were found in the carriage. — E. L. R. 'V!l ' i No. 2536. Parker v. Cochrane. COMMUNAUTt. Held, that if there he no evidence of foreign law it is taken to be same as ours. Badgley^ Q. C, Sf Ahlwt.t, for Plaintiff, cited Smith v. Govld, 6 .Turist 543. — Mosfi/a v. Fubrigas, Cowp. 174. — Exparte Cridland, 3 Ves. & B. 99. -rBenfinck v. Willink, 2 Hare 1. — Harris v. Alexander, 9 Robinson ('Louisiana) 151. — Sprars v. Ihirpin, 9 Robinson, 293. — Bormean v. Poydras, 2 Robinson, p. 1. Day, J., This an action by wife en separation de bicns j parties were married in En^l nd theie is no evidence of foreign law, it must therefore be taken to be s&me as that which prevails here. Jwlgment for Plaintiff. mug' 54 CIRCUIT COURT, 1854. Rassette v. Dalrymple et Dalrymple, Opposant. Day, J. La Conr est appel6e a prononrer dans cette cause sur le hiferite d'une opposition, afin d'annuller, faite k la vente des |iroprl6t6s saisJKs sous le pretexte qu'il n'y a pas de date nu Proems Verbal de saisie et que la vente a 6f6 annoncee comme devnnt avoir lieu au Bureau du Sh6rif, tandis quVlle devait se faire sL In porte de l'6glise de la pa'-oisse. Quant k Pannonce elle ne pent avoir IVffet d'annuller la saisie mais Pabspnoe de date au Proems Verbal est fatale: Morrau, L'hlanc pt Cassidy, pour POpposant. Papin, pour le Deinandeur. t be ^wew to the insurer, when the policy note may be redem.inded, 4 Wm. IV., c. 33. s. 21. No. 161. LeBlanc v. Rollin et ux. Held, that a married womarCr note i% an ahsolute riuUi^y as regards herjbut ffuU endorser tnay be liable to the ind'>rsee, M'Cord,(jJ. S.) J.,This was an action on a promissory note by indorsee against a married woman, the mtker, and her husb<.nd the endorser. It was contended on the pvtof Defendant that the note was an absolute nullity, having been mide by a married womnn, not a marc/iande pub- liqtie. This is true as regards the married woman, b'lt the endo ser may be liable. V. Byles on Bilfs, Nos. 4-6. 59, 107. Jones v. Hartf Revue de Legislation, Vol. 2, p. 58. Hill v. Luir, 1 Salk., 132. Hubert, Ouimet et Mwin, pour le Demandeur. Dontre, Uaoust et Praire, poiir le Defendeur. CAUSESDfiCIDfiS ANTfiRIEUSEMENT A LA FONDATiON .' JlSJOURxXAL COUll SUPERIEUR. 3 Av'il, 1850. Present : — Vanfelson et Mondelet, Justices, No. 4H. Lrfebvre v. Demcrs, Cette action fut portee par le Cess^onnaire d'un douaire pr6fix. Le Douairier n'avait renonce a la succession qu'apres le tian.sport mais avant Taction. Les questions qui se pre.sent«irent fuient de savoir, s'il y avait eu confusion des qualitcs d'herltier et de douuirier avant le fl CIRCUIT COURT, 185*. 57 transporf; s'i? est n6cessnire que le DoHainer renonce? Siroption qu'il jivait faite eqiiivalait a une rcnon- tation. Ln Cour a miintenu Paction avec d«pens. Vide Pothier, Trait6 du Douaire, no. 332 et suivants. No. 80. Pariseau v. Ouellet, Appclproduit le 3 JuiHy 18.')0, d la Cour Sup^rieure. Li question souIev6e par cet Appel etait de savoir, si le mettcur d*aval est (l{'char;?6 Av tout« respnnsabilite par le defaut de presenta- tion et de protCt du billet dans li-s d^lais. La Cour «e prononga dans la negitivfi sur le principe qu'il etait la caution ^olidaire du faiseur du billet quoiqu^il eut appos6 sa signature sur le dos du dil bi!let. Vide Savary, I vol., p. 203, cbap 8. 2 vol. Tarere 37, p. 261. Merlin, Quest. Vo. Aval Diction, du Cont. Commerce Vo. Aval, Ordon. 1673, Titre 5, Art. 32. '• Story on Bills of Exchange" no. 372, 398, 440 et 454. 16 Septembrej 1850. Present : — Day, Smith et Mondelet, J. J. No. 1835. Podier v. MercUe. 11 s'agissait dans cette cause de Thomologalion d'un rapport d'Ar- bitres et amiables compositeurs. DNm cute les Demandeurs en denian- dai* nt le rtjet pour plusieurs nullit6s el entr'aulres parce que le rapport n^avait pas 6t6 produit devant la Cour en minute ou original et de I'autre les D^fendeurs en demandaient Phomologation pure et simple. LtfiCuaye, pour le Demandeur a cile Pothier, Prof6dure Civile, Coutume de Paris, art. 185. *' Et sont tenus les dits Experts de rcdii^er par eciif, et si pier la minute, etc?'' MoreaUy Leblanc et Casddy, pour le Defendeur. Ija Cour a Punanimit^ adopta la doctrine invoqueeparleDemandenr et rejetta le rapport parce qu'd n'avait pas et6 produit en minute. 27 Oct., 1851. Present: — Day, Smith and Mondelet, (C.) Justices. No. 2i31. Tate et al v. Torrance. MOTION TO DISCHArCE I.VSCPIPTION ON THE r6lE D'ENQUfcTE. The pleadin^jis in this cause consisted of declaration, pleas and gen- eral answers. The Plaintiff then inscribed for enqu6te, and the Defen- dant muve.l to discharge the insciiption, the issues being incompltte, there being no replication tu the ge.ieral answers of Plaintiff. 58 CIRCUIT COURT, 1854. A :ll Trrrmnce, in support cited The Bank of British North America V. Taylor. /witut que douaire aurnit lieu,lcquel ettiit de six ctnts livr* 8 ancien cours." 4o. LVnr6gistreuifnt de cet arte, le d6c6s d'Ant( .ne Bissonnctte et sa feinme, la reuonciation de Damase B ssonnette a la succession de son p6re et le transp rt par le dit Damase Bissonnctte en sa tavpur, de ses droits dans la dite somme dc six cents livres a. c.qu'il preten- dait avoir droit de reclamer du Defendeur en vertu de Tacte de dona- tion ainsi que de la signilication du transport. TjC D6 "endear opposa a cette action difl'erentes Exceptions Pcremp- toires par lesquflh s il a souNrve les questions suivantes : lo. Que le Defendeur n'avait pas d'action personnelle pour recou- vrer la somme qu'il demandait par son action parce qu'il n\'ivait pas 6t6 partie a I'acte de' donation du 3 Juin, 1833 et qu'il n'avait pas ac- cepte la stipulation y contenue en sa faveur. '2o. (cu'a raison de l'enrei,'istsement de I'acte de donation que lui avait fait son pere Antoine Bissonnetle et du defaut d'enregistrenient da i-ontr;it de m'>ria'j:e invoque psir le Demandeur, le Defendeiir n'etait pas tenu de payer la somme rei lamee. 3o. Que Damase Bissormette dont le Demandeur est le cessionnaire a apprehend^ la succession de son p6re ainsi que constate par Parte de transport du 31 .Tuillet, 1849, fait par le dit Damase Bissonnctte au Deniantleur et quVn consequence le Demandeur ne pent ri'jpcter le douaire qu*il demandc par ^on action " parce que nul ne peutSire li6ii- tier et douii ier tout ensemble." Le Deman'eUr repliqua qu'il n'etait pas necessaire d'une accepta- tion de la part de Damase Bissonnette pour lui donrier une action per- sonnelle cnntre le Defe.ideur lr6. Qik; 1 )amasp Bissonnrttc n^avait jamais fait acte dMi^ritier ct accep- t6 la Kucct'^sion dr son pt^re. De ces cliel's (I'lCxreplion proposes par Ic Difendeur quelques-uns ont i'*ii ahatnlorm^s lors do Paigumciit. Les qu»vstioiis qu(! la Com- avuit a decider 6taient de savoir si le Deiuiniieur cessinmiiiiro do Damase liiitsoniiette avait une action per- scnnollc |)Oiir recouvrer la soiiiine qu'il dernandait par son action n\vaiit pas 6le p.xrtie a Pucte do donation du 3 Juin, 1833 ct n'ayant pa> accept'^ la sti|)iilaiioii coiiloiiui' en s.i faveur, et si Damase IJisson- notlc ces^i'>nrlail■e du 1 h)\u inili'ur a appreliL'udo la sudccssion de son pcre par lo tianspoit du 31 .liiiljt t ISlfJ, et a fait par la acte d'lieiitier. Toute la dillicultt «oiisis(e dans Tinlerpi elation a donnor a Pacte de donation du 3 .luin, 1S33 et au transport du 31 .luillet, 184-9. Si Dauiase ni>s(»nn» tte a lait arte d'heiitier par le transport, il est clair que Paction du Deniandeur son cessionnaire doit 6tre debout6e car aus terines de Parti< le 2')! de la C'outunie il est dit : " Mul ne pent t'tre lieiititr «t l)ouiiiri«'r tout ensemble." Le 2 Juill. t dernier la Cour de ('ircuit du Circuit de Vaudrpuil, pr6sid6e pur M. le .luge (Juy, dcbouta avee depens Paction du De- miinileur, la Cour etant d'opinion que Damase Bissonnette avait fait acte d'lieritier par le transport susnienlionii6. Cv. .lugement Cut soumis par appel a la Cour Superieure si6geant k Montreal et a it6 confirnie le 16 Novembre dernier par la majorit6 de la Cour M. le .luge Smith ayant d ft'ere. Appel ayant 6te interj* te a la Cour du Banc de la Reine le .Tuge- ment de la Cour de Circuit confirme par la Cour Sup6rieur fut ren- V'^ verse et mis de cotele 12 Ortobre dernier par la dite Cour du Banc Heine composee des llonorablcs .lu;>es Uolland, Piinet et Alywin. Chrrncr, C. R., DarUm ti Dorion, pour le Demandeur en Appel ont cite : Potluer,Cbli{^ation, no. 70 a 73. Ricard, des Donations, t. 2 p. 122. Guyot, Hepert. Vo. Mode art. de M. Merlin. Pandcctes Frangaises, U t. 10, p. 1()1 et 162. Duranton, t. 10, no. 231, 232 et 233. Jdem, t. 10, p. 241, 24.5 et 253. Furgole, des Testamens, t. 3, p. 191 et 192, no. 127 et 131. Lebrun, des Successions, liv. IJI, CV1I1,S. 11, no. 6. M«!rlin, (^uest. Vo. Stipu'ation pour Autrui, par. ler, p. 271, Kdit Beljje. Merlin, Rep. Arte sous Seing Privt, par. 2, p. 18.5, art. du Code 1121. Journal tin Palais, tome ler, p. .569 et 570. ArrAt du 26 Mai, 167k Louet, lettre II. 76, no. 10, tome ler p. 128. Merlin, Rep. V^o. l.6gataire, no. 5, p. 450. Ferrierc, tome 4, p. 652 tJ. C. no. 5, G. C. tome 3, p. 793, no. 10, 796, Furgole, tome 3. Gedcon Oiiimct, pour le Delendeur, a cit6 : Lebrun, Traite des Successions Uenonci.itions, liv. Ill, chap. 8, see. II, p. .54-1 et .543. Merlin, Rep. Vo. lleritiers, vol. 7, p. 377, no. 780, vol 14, Vo. Renonciation, p. 580, 2 colonne, no. 1 de la sec. 2me. SUPRIUOIl COURT. 6S ;»upfi(ov (Tourl. • IS Apnl, IS.)!-. P/rsf'?>f. : — D;iy, ^mitli and IMontlnlct (C), .1. .1. No. 3 i. Lnngttcdoc S)' al., v. Lnvi.nh:ttr.. In this case the Dcfeiulant IkuI inscrii)otl ciifaitx against tlie |)ari>Ii ri:j;istcr of marriage, unci the Cure, hy whom the entry purported to have been made, was produced as a witness ia support ol' tliis inscrip- tion. Tlie riaintilV moved to have liis evidence excluded. Chcrricr, Q. C, Dorian ct Dmion, in support. Carlicr tj« ikrthcht, contra. Day, J., This question has been decided Jay, J., Tins question has been UeciUed several times by the majority of the Court. I am not disposed to disturb the jud|imenl,. Motion /:Iis)nissc(L No. 102G. Boii-Jcrr V. M CorkilL 7)^7/, J., This action was brought for the recovery of ISO/., the price of goods sohl l)y rhiintift' to one McCorkill, now represented by his widow. Part of the goods it is alleged were sohl by Plain! ill* per- sonally to McCorkill, and partly by him and one Hall. Defendant pleads in compensation a sum of 200/., price of goods sohl to PlaintiiV,. and a receipt up to r)th Deeember, 1832. The recori j-f^sents a strange appearance from the imj)eai-hment of the character ; '.* -timost every witness who has been produced on the part of either PJainlilTor Defendant, but we attach little importance to these general attacks on the character of witnesses. We consider the settlemi t of account pro'luced by the Defendant sudk-iently proved. Or I'le part of the Plaintiil' it has been attempted to prove that the signature to that receipt was a forgerv, and the principal circumstance allegetl vv;;s that it hail been si'nied twice, J. B. &•- J. Bowker. I'liis wu consider as j)roving a"-ainst the pretentions of riaiiitilT, for if any one had been so wicked as to foi'-o'e this receipt he would not have been so foolish as to have written it twice, he would have taken another piece of paper. The Court considers that PlaintilT is entitled to judgment for 6/. 17s. hd. Ji. X' Ct. Robertson, for Defendant. 64 SUPERIOR COURT. No. 43. Hutchins v. Dorivin Sf al. ' Badgley, Q. C, (f- Abbott, for Plaintiff. Stuart, for Defendants. Day, J., This is an action for the >ecovery of 275/., paid on real estate purchased from one Oliver Wait, and of wliich real estate the Plaintiff had been obliged to make a delamemejit at the suit of an hypothecary creditor. The action sets out sale and payment of part of purchase money, and that Uorwin and Atwater became consignees of the balance. That the Denfendants afterwards, in order to induce the Plaintiff to pay them the balance of purchase money, gave a letter of guarantee, by which they undertook to hold Plaintiff harmless from the action of any of the hypothecary creditors of the original vendor. The declaration goes on to say that an action was brought by the Saving's Bank, and that Plaintiff was obliged to dehiisscr the property under the judgment, and that Plaintiff notified Defendants, and that they agreed to delaisscment. The evidence is documentary. The points raised at argument were that the delaissetnent under judgment is not in law an eviction but only a trouble, and that the party might call on his garant, but could not ask him for price until after adjudication. These two points are involved in one question : whether dclaissement warrants party to wage his action en garantie ? AVe do not rest any right of Phiinliff on Defendants quality of assignees, but on the undertaking of Defendants at the payment of last 75/. Defendants by that assume the position of the vendor and are liable to the same action that he would be. It is a pure question of law, and we have no hesitation in saying that wc are with the Plaintiff after having gone through all the authorities. Loyseau draws a distinction between degiierpissc^nent and delaisse- ment, and holds that the first goes further than the latter, but in spite of this we think it is such an eviction as gives right to rer.over pur- chase money. Pothier Tr. de Vente, No. 83, says, " on a2^pclle eviction non seulement la sentence qui condamne d delaisacr une chose purement et simplement, mais celle qui condamne a la delaisser, sinon d payer, qu d s'obliger d que/que chose. C^est ponr- quoi si Vacheteur dhm heritage, condamne snr vne action hypothe- cairc 2Jaie les causes de Phypotheque pour eviter les delais de llieii- tage, qui vaut autant ou mieux que la cr^ance du demandeur ; cet acheteur en ce cos est cense de muffrir eviction de la chose d ltd vendue, quHl nefait conserver qu'cn don7iant de I' argent, et le ven- deur est tenu de la garantie de cette eviction, en Vacquitant de re qa'il lui en a oute. This is just a sentence to condemn Plaintiff to delaisser, so is eviction. Plaintiff might have paid, and would have' been evicted, Nos. 84 — b & 8, also Nos. 107—8 He 9. Lacombe Vo. Eviction, Nos. 5. An eviction, but one that may be defeated. SUPERIOR COURT. B5 Giiizot in the "Repertoire Vo. D61aissement, p. 349, says, " ie de- laissement ojierant ntie veritahle eviction.''^ This authority applies in spirit as in terms, for in the following section he goes on to show that the difference that exists between eviction and expropriation has not been lost sight of. N.Denisart Vo. Delaissement, Nos. 2 & 3. In the nouveau droit see : 1 Troplong, Vente. 3 Troplong, Hypotheque. The new authorities thus bear out the old law. The Court, there- fore, has no doubt that delaissement is eviction, and such as to entitle the party evinced to ask back the purchase money. Smith, J., Judgment rests on special and specific undertaking of Defendants. As Plaintiff has given up (rlelaisse) the property, into what position should he be put? Why clearly into the position of getting back his money. Plaintiff loses possession of the thing sold, •and mnst he wait perhaps for years until the property is adjudicated. Jit(lg7nent for Plaintiff. 29 AprU, 1854.. Present ; — Day, Smith and Mondelet fC), J. J-. No. 2627. Tidmatslh v. Stephens Sf al. This case came up on a motion on the part of the Defendant that the inscription for enqiiHe and the enquete had thereupon been set- aside, because there wus no issue jomed between the parties, and be- cause the Defendants had not been foreclosed from fyling a replication to the general answers of the Plaintiff. David 4* Ramsat/t in support. E. Carter, contra. The Court maintained Defendant's motion. No. 635. Exparte, Paradis. Day, J., This is an application for a writ of scire facias to annul letters patent. The difficulty is that these writs only issue at the in- stance of the crown. In England it is incontrovertible, that such was the rule, and the act by which ihe law was changed has been repealed. Carter, for Applicant. Wnt refused. ee SUPERIOR COTRT. No. 105. Exparte — Trudeau, for Writ of Certiorari. l)a!y, J., This conviction niHst be quashed. We have looked care-- fully into authoritrcs cited, to show that conviction should be quashed without costs; but we have not the power to do so. Senecal, as Sous-voyer, is prosecutor, and appeared and asked for judgment, and though no case is harder than that of a public officer, we cannot help him ; the Statute is obligatory, and we have no discretion. Betournay, for Petitioner. Noo, 919. ]5]xparte, Doyle, Petitioner for a Writ of Certiorari. Jbevdin ^ Herbert, for Petitioner. Pelletier, J. F., contra. Day, 3., This is an application to quash a conviction of the Recor- der's Court, by which the Petitioner was condemned to pay a fine of lOs. and costs for having sold vegetables on the 9th of September, 1852, in St. Charles Barromoe Street, of the City of Montreal, con- trary to the By-Law of the said city, No. 196. It is contended by Petitioner that this By-Law is illegal. There Is no illegality about it. It is a By-Law to regulate trade, and if the Corporation have any power at all they have the power to pass such a By-Law as this. This power arises by implication from their having the right to assess duties, have a market and assessors. But there is another technical objection to this convictioir, and that is, that the By-Law is not set out either in the plaint or in the conviction. The Court are with the Petitioner on this point. The By-Law is set out very loosely, it is called By-Law No. 196, and no chapter and no section is given. The conviction must, therefore, be quashcid. Conviction quashed. No. 5S7. Exparte, Cnrpenlicr, Application for a Writ of Co'tiornri. This was an application for a Writ of Certimari to bring up a record from the Commissioner's Court, on the ground tiiat the Court below had exceeded its jurisdiction in giving judgment in a case begun on a process of srtmc arrU avant jugc7nent, wliich process had been granted by the Clerk of the Commissioner's Court, and not by one of the Commissioners. Sicotte ^ Leblanc, for Petitioner. Lahcrge 4' Lojlamc, contra. •# SUPERIOR COURT. 67 Datjy 3., We are very unwilling to make this Court a Court of Appeals from the Commissioner'i Court, as it has become from deci- sions of Justices of the I\^ace ; but in this case a Writ of sakie ar- •rit avant jugernvnt has been issued, signed by the Clerk of the Com- missioner's Court. The first Statute* establis'iing ihese Courts did Jiot give them a right to this progress, but a subsequent Statutef has given the Clerk of the Circuit Court and the Commissaoner's Court tiie power to issiie this process in sums over 1/. 5s. It was evidently ;ood government of the Province and what ~ on not 1 This Court cannot do so. Almost every Statute interferes more or less with vested rights ; but wherever a general discretion is given to any body to legislate for the peace, welfare and good government of those subjected to their rule, that body necessarily becomes the judge of what is for the peace, welfare and good government of its subjects. The powers of legislation of the Provincial Parliament are as extensive as that of the Imperial Parliament while they keep within the limits fixed by that Statute, even if they were to interfere with Magna Cliarta. The next question is, does the propcrty»belong to government 1 By Statute the Board of Wo'.ks were alhwed to dispose by lease or other- wise of certain hydraulic lots on the Lachine Canai of which the prop- erty in question is a part, and it is contended that these leases passed no right of property, that Gould had not \\iejus in re. At the time of the argument the Court expressed the opinion i\i?\X.haax a Imtgucs an- nees did pass the jus in re, and we find that we were not in error. These leases like emphitCGtiques, leases do not give rise to luds €t f INIon- LMit anJ s givt-n nd wen* and Otii nils, t1i«' ic oflice n cause, rovince. 10 Gov- intcrcfct beyond ell istate as the anient is d by the with the fare and at being d in the ot here- and not r by ne- Lower What peace, udge of id what. more or pjriion is contrary to that of other authors. Tropfoft^, liOii;\ till second on tr(.i>iririt! raii^ dan*^ hujiu'll*! il avail iirio jiait (!•' ro'ilr yc'W Its Icrrcs qu'il |K)S'>t'(l;iit dans It; ti()i>iciiit' raiii; di' la diti! |iai(ii»o, C'ti-.,'" puiir hKnitllc il (rintiirit') dmiiaiiile a liii (rA|»|t('l- iint) !a s^iiunio do (|uafr(' clit liiis coiuaiit, a rai^nn do quatre ditiit rs par arpent: T^ lupi'iits, -is. oouram, olc, tt li's tVais. I'^n rcpoiisc a (M'tte deiiianilo l»!*lH''!fiid(iir en C'oiir InlV ricMrf Tda trois (U'rcn^cs dout la j)r( luiiM't', uiif i;.NC(.'| tirii dLclinuloirc;, nVlait point soutenue. I'nrla ^cl;(llldl; do SOS d(.'.'f(;n.''t'> If JU-fi niliur niaintint (pio '* If dit Aiiij^iihliii Dtcollo dans sa ([ualite de soiis-A'oyer n'avait pas Ic droit (riiilontfr aiiciiiif ailioa pour If r:( oiivrc niont d'anc\int' soninif d'arj;('nt pour an- ( uiif i;aiiso Mifnliontit'O daifs l;.i ditc plainto ot sonmiation." I 'our la dfniicro do sos dcfonsos lo Pi'lfntlour allegua " cpfil ne pouvait pas 6trf k'' iionuiie^ par le Consiil Municipal du Comlo dans If quel les proprictos on question sont sitneos. >,()iu»l)^laiit SOS dol'cnsos It's Jugos de Paix rendirent Jugcmont on favour du IMaignant, ot cV'st de ce Jugcinent dont ost Appol. Los rnoyons d'Appo! sur los (|uels I'Appolant sso fonda pour ohtenir gain de cause lurent ossontlcileniont ceux (jue nous vononsde rapporter ci-liaut, au long. Mon/h'ht ct RnmHiy, pour I'Appolant ont refcro au Stalut Tro- vincial 10 ot 11, Vic. 7, ctaiilissant los Conseils lAlunicipaux ot los diluionts ^:^t!ituts qui rauiendoiit ou roxpli([Uont 12 Vic, c. 51 — 13 ot U \'ic., f. 34—1-1' ot 15 Vic, c f38 et 93. Au soution do la pre- init.ro defenso ils unt pietonilu que par le (h(;mior de cos Statuts le;: pouvoirs ant iennonicnt exerces jiar !o Grand Voycr du Distri<;t i'urojit transuiis au Consoil ; que les Conseils seuls avaient le droit d'iniposor ov de poiccvon- dos taxes, ot cola seidernent par moyen de loui's trois Coiisours 5 que le sous-Voycr et memo IMuspectour rtaient simpioment des onqdnyt's du Conseil, ineapaldcs d'agir d^-nx-ni^Mnos. Au soul ion do r;.'itic ilefonse ot nioyt n d'Appel ils ont refere specialeuiont a la .Section 17^' ot 2:")^, 10 et 1 I Vic, c 7. S.'cdt'c, poar rintiiiie, conibattit la po>ition prise par los Avocatsdo I'Appolant et protoiidit que si la Cour, par sa decision, niaintenait PAppoI. Ifs Couseils .Municipa'ix fonctionnoraient encore plus nial qu'aaparavant. McCr.rd, J, a p'-'oncncu son .Tu^enient, en francais, a la requisition tie M. Sicodo (jui dcsirait laire t.oiuiaitre la deci-iou afu; .'roelairo,- ceux qui snnt appelos a roini)!ir los fonctions d'Inspectenr i't do sous- Voyer. .S'.ii llonneur dit : <^u'en lisant les Statuts cilt's jiar los Avo- cats do TAppeiant, il ctait ovi'lent que le sous-Voyer n'avait aucuno quaiite pour pouisuivrt;, ot: (pie TAppol devaitetre maint'iiue. ()iK)ii|ue CO Jugouiont ait i'l«'' rendu il y a qiielque temps, nous avoris t-td' iii'hiits a !e publier a la requisition de quelques-uns de nos a d( ti> ri|i t: et ieill l)f <'oti on a ivail une ;rAi.p<'i' iii» IS par 10 h IM'ttC 'S (lout la Tiir la Au[i;ustiii .rir.tnittT ; |i()ur aiJ- l'(Uir la nivait pas e inipost'c raisun (Jc tolU; taxK lit; j.ar Ics iauh li'quci gcment on )cl. Li's ir iiain de er ci-liaut, alut ] Vo- ux et Ics 1 — i:iet e la pre- tatuts l«:< ict ruicr.t. (riinposer mirs tiois imiiloiiuMit All soulicn nieiit a la Avooatsdc maintcnait plus lira! ie(liilsition dY'clairo;- •t dc soas- u- les Avu- ,ait aiu'unc e. Dinps, iio'us -uns de n^;^ CIRCUIT COURT. 77 Jiiiiis, I'oinnic rtaiit de natiiro a niilcr mix Maj;ist!ats dc ciiminriic (jiii lit.' soul (pit! tii)(> soiivciit ajipclfs a jii:;cr dfs tpiotions (liip d'Actnii. ( |)ue le (lit !-'liLMnin de fer, ses terrains, Icrrassemen", di'-pots, Iiang-ards et ba- tiss:es dans les limitos du dit 'rownships out (ic N'^aleimiit e values a j.i somme do .£1,0;')0, cnuiaiit, (>t le niontant de la cotisation lixee pour raiuu'.'i; Si'olairo coiiinieiuiaut li; ler .luillet ISft.'i au .'^0 .1 iiiu pi'ocliain, a .^10 9 i.J. courant, ainsi qu'il est ctabli par le n'de (bs coiisations (les dits DeinaniltMu's pour la ditc annc^'i; scoiaire, el ils (leinainli'ut qui; la l)6rendie;-se luer payc la dito deini(^'re sninmo. Jja Doicndresse (lit ]iour l:]xce;itioii I'tueuiploire a la (lite ai;li')n, quo par la loi du pays ('111! n%'st pas assujettie a la taxi; pour h'> rui> siolau'os, niais en est txenqite pour ties raisons (rititcn' t fiuhlic. «^iu; la nerendresse est lenuc de payer dans la valcur du rob; de eo- tisalian pour les (U'pots ct baliineus qu'ello ))Oss(^'lo dans la dite .Muni- eipalite, ft sent prtits a payer et Pout toujnurs (He, la taxe seolaire sur ti'lle val(;ur, inais les ])einandeurs out refuse de liiiiiter leur r(''elaniatioii et imposition. (>ue la IK'fendresse n'tjtait jias oblii^ou dcfaire valoir son blxception par rapport au dit clieinin auprt;s des autoritcs locales. Jugeinent en iaveur des Deinandeurs motive comme suit: S. U. le iu'e iVlcCord concourt dans les raisons donnces par !;i De- fendresse ei en admet la justif.e, mais enndainno ui^'aninoius la dite Di^teiidresse sur ce point, (pi'elle aurait du reclainer eoutre lo role dos cotisalionsen autant qu'elley ('.'tait coneeruee duraut les trente jours q;a; le dit rule est reste entre les mains du Secirtaiic-'l'i ijsorier pour ius- pi.H'tiou, aprijs avis public a rel eiVet airiclie et publi6 sui\aiit la loi, ct en appeler ensuite a la Couf de Circuit comme Cour de Llevision. Dc.Boiidiaville, pour les Deniandeurs. Sio/te et L'.'blanc, pour les Dt^femleurs. I'' I f8 COUR DU BANC DU ROI. QUESTIONS DE DROIT. Ci-suivent quelques-unes ties questions de droit les plus importantes, qui ont hth- d6cid6es dans le dernier Teime de la CourduBanc du Roi du District de Quebec. Elles dtcoulent des d6cisions qui ont 6t6 don- nees dans les differentes causes : — (Mars, 1837.^ Quand un proems par jures a 6te continue pour quelque cause quo cc soit, il est iibre a I'une des parties de sommer les m6rnes jur6s de com- paraitre de novo, par un Alias, Writ de Venire facias, nxx lieu d'un Writ de Distringas usite en Angleterre, mais inconnu ici. — Affaire Boeuchette vs. Felton. — Le defaut d'exactiiude dans la citation du Statut qui rd'gle les qualifications des Magistrats, dans une cause intent^e contre un Magis- trat pour avoir agi comme tel sans les qualifications requises, est une exception valable et suffisante pour faire renvoyer Paction, quoique la citation du titre ne tut pas n6cessaire, m6me dans une action qui tarn. — Aftaire Phillips vs. Russell. — Le bfherif n'est pas garai.t envers I'Adjudicataire qui n*a pu ob- teriir possession d'un bien a iui adjuge par le Sherif en sa qualite de Slierif. L'adjudicataire a son recours contre ceux qui ont regu I'ar- gent. — Affiiire Lachance vs. Seivell. — Le defaut d'enonciation que le Defendeur est proprietaire, dans le corps de la declaration, dans une action hypothecaire, quoique cette enonciation se trouvc dans les conclusions, est une omission fatale. — Affaire Potvin vs. Simard et Rodrigue. — Deux Dernandeurs non-solidaires ne peuvent poursuivre ensem- ble : cependant le D6fendeur comparaissant et ne prenant pas I'objec- tion, la Cour ne la supplee pas, car il pent etre l'inter6t du Defendeur que Paction ne soit pas renvoyee, attendu qu'il aurait ensuite a payer les frais de deux actions. Dans une cause ex parte, la Cour aurait sup- plee I'objection. — Affaire Frascr et Fraser vs. Gravelle. — Les injures reelles ne se prescrivent pas par Pan et jour, mais sculement les injures verbales. — Affaire Peltier vs. Levn.eli?i. — II n'y a pas de Lods et Ventes sur un Bail Eniphiteotique de 99 ans. soutenu d'un testament de la part du Loiateur en faveurdu Loca- taire, lorsqu'il n'y a pas preuve de fraude, et tant que le testamen. n'est pas ouvert j)ar la mort du Testateur. — Affaire Lanaudiere vs. Jchin, — Une donation atitre onereux ne donne pas lieu aux droits de Lods et Ventes, lorsquo la donation est entre p(3re el filspar un contrat de mariage et ne contient auc-un prixdetermin6. — K^^^v^JLanaudihe vs. Roi. — Une quittance sous seing prive donnee par un Cedant a son De- biteur, est une exception valable et une reponse suffisante a Paction d'un Cessionn;\ice qui n'a pas signifie son transport, s'il n'y a pas eu fraude. — II est permis d'6maner un Mandarmts a un Cur6 a Peffet de faire discuter une election de Marguiller devant les tribunaux. Le Cure n'a pas do voix dans I'election des Marguilliers.— Affaire \cduc, Cure de &t. FraOy-ois. -?,#. SUPERIOR COURT. 70 rtantes, du Roi t6 don- ? quo ce ' Je com- ieu d'un -Affaire regie les 1 Magis- , est une loique la [ui tarn. a pu ob- ualite de egu I'ar- lire, dans que cette fatal e. — ensem- I'objec- )efendeur a payer urait sup- our, mais ue de 99 du Loca- nen. n'est s. Jobin. droits de \n contiat naiidUrc son De- letion d'un eu fraude. I'effet de .—Affaire Superfor OCourt. 31 May, 1854.. Present : Day, Smith and Mondelet (C.) J, J. No. 2217. Kelton V. Mamon, DOMICILE — EXCEPTION A LA FORME. A. ^ G. RobertaoH, in support. Devlin 4* Doherty, contra. Day, J., This case came up on an exception a la forme that Defendant had left the house where process was served a ntonth before service, and had gone to California. This allegation is sustained by the evidence ; the action must therefore be dismissed. Exception maintained. No. 132. Exparte, Verroneau) for Writ of Certiorari. COSTS. Carter J E., foi Petitioner. Day, J., The only question here is whether Martin the complainant, ur the Inspector should pay the costs. The costs must go by the re- cord, and Martin does not appear there, the Inspector therefore must pay the costs. No. 2617. McDonald v. Seymour. DOMICILE — EXCEPTION A LA FORME. Fleet t]' Dorman, in support. Day, contra. Day, J., This case comes up on a question of sufficiency of service of process. Summons was served on Defendant at the Ottawa Hotel by leaving a copy with the Book-keeper. Defendant contends that he was entitled to have service made personally or at his domicile. The question therefore is, was the Ottawa Hotel Defendant's domicile or se SUPERIOR COURT. not ? If appears by the evidence that Plainfiff was lodged there by the month, but was often away, and his room was not kept for him, he sometimes slept in one room and sometimes in another, and sometimes on the sofa. The authorities decide that service at the residence of a party is not sufficient. See iV. Denisari, Vo. Assignation, and Jousse, Commentaire sur I'Ord. 16*^7, A, p. 17. The service should have been personal. Exception maintained. sJWm No. 1988. \ Demlurand Sf ux v. Pinsonneault. DAMAGES. Drummond, At. Gen. Sf Dunlop, for Plaintiffs. Lorangcr, for Defendant. Day, .T., This is an action of damages brought by a man and his wife for damages caused to the latter by a bite of Defendant's dog. We have no doubt that Mde. Dendurand was bitten by the dog in question, although it is only proved by one witness. The wound was of great severity, and the woman was ill, and was attended by a doctor for five weeks. Tha only justification offered by the Defendant was that the woman was a trespasser, she having left the high-road and walked near the Defendant's barn. This was no tres- pass. We know the habits of the country, and that when the roads are bad people walk along the sides of the fields, but there is no animus in that to make it a trespass. A man may keep a dangerous dog to protect his property ; but if he does so, he does it at his own risk, and is liable to his last farthing for the damages it may do. The doctor's fees amount to 22^, and we have assessed the damages at 50/. No. 469. Read, Applt., V. LefelvTCf Respt. DAMAGES. Doutre, for Appellant. Lorangcr, for Kespondent. Daij,J., This is a case of litigation in a very small matter. The ac- tion was brought in the Circuit Court for damages in ♦ onsoqucnce of Respondent having come on Appellant's land and havuijf iilb'd up a ditch. Defendant in Court below said that he filled up the ditch in question by virtue of a proces-verbal, by which he was authorizt^d to open a new ditch. The Plaintiff in the Court below answered that the SUPERIOR COURT. ai bv the im, lie etimes e of a Tousse, e been ned. %ii\(\ piroces-verbal h^^(\ been brought up before the Court and broken. Plaintiff proved his answer, but the Circuit Judge thought little damage was produced and dismissed the action. This was probably a good equitable view of the case ; but Plaintiff has shown right of action, and we must reverse the judgment of the Circiit Court, and we assess the damages at 51. Appeal maintained. No. 815. his wife endant^s tten by s. The attended 1 by the left the no tres- he roads ire is no angerous his own The , at f)OZ. The ac- urnce ot illt'd up a ditch in jorized to d tliat the Campbell ^ al. v. Hutchison. PRESCRIPTION — STATUTE OF LIMITATIONS. Badgletj. Q. C, Sf Abbotty for Appellant. Fleet Sf Dormarif for Respondent. Day, J., This is an appeal from the Circuit Court on the much vexed question of the prescription of five years. We give the same decision as in the case of Wing v. Wing.* No. 2697. Paradis v. Lamere. EXCEPTION A LA FORME — MISNOMER^ Held, that Plaintiff' is obliged to knoivn his own name, and to tell it to Defendant. Bethune Sf Vimkin, in support. Chcrrier, Q. C, Dor ion ^' Dorion, contra. Day, J., This action is met by an exception d la forme, by which Defendant alleges that his father is of the same name rs himself, and is still living, and that he should have been styled the younger — that Plain- tiff is not a practising physician — and that Plaintiff is Charles A, H. Paradis, and not Henri Paradis. We are against Defendant on these first two reasons, but we are with him on the last point. Plaintiff is obliged to know his own name and to tell it to Defendant. It has been 5i;id that the Ordinance of 1667 does not require the Plaintiff to give tnore than his domicile and quality and surname, but on looking at the * Vide 4 Lower Canada Reports, p. 261. ^ SUPERIOR COURT. article, 2 Tit. 2, we do not feel sure of this, and we find in tlie authori- ties that the Plaintiff must give his name, now the name of the party is not Henri Paradis, but Charles A. II. Paradis. Vide Dalloz, Vo. Assignation, Nos. 89 & 94.* • • Action dismissed,. No. 2491. Stephens Sf al. v. Watson Sf al. PLEADING. Defendants appeared together, and pleaded together ; but by the second plea one of the Defendants answered the action specially for him- self, and concluded that, as far as he was concerntd, the action might be dismissed. By the third plea the other Defendant did likewise, and PlaintitVs moved to have these pleas dismissed from the record, on the ground that Defendants having appeared and pleaded together, they could not be allowed separately to defeat the action ; and that, as they were bound to plead together, neither plea was an answer to the action. David Sf Ramsay, in support. Drummondj Att. Gen., tj' Dunlop, contra. Day, J., We do not see that Plaintiffs are injured by this manner of pleading ; but it is certainly irregular, we therefore grant Plaintiff's motions. Smith, J., I concur in this judgment because I see no use of these pleas. Motions granted. * No. 117. Willia?7is V. Arthur ^- al. SECURITY OF COSTS. A. ^ G. Rohcrtaoti, in support. Cherricr, Q. C, Dorian Sf Dorion, contra. Day, J., This is a motion for security of costs. It is resisted hr Plaintiff as being made too late. It appears that Defendants appeared on the 12th of May, and only gave notice of motion on the 18th. Defendants say that the return was made in vacation and that they could not make their motion, that the rule of practice which limited ""' "It would seem that although the Ordonnance of 1067 does not, in express terms, say that the name of the Plaintifl' shall be given ; yet that it has been always inter- preted lo mean that Plaintiff shall be sufficiently described to make Defendant sure of the party by whom he is sued. Vide. N. Denisart, Vo. Assignation, p. -J57. SUPERIOR COURT. 83 fliem to four days must be held to mean four days in term, and that they had only had one day, the 17th, that they were entitled to security of costs by the Statute ilst Geo. III., and that the rule must yield to the Statute. We are against the movers, the rule of practice must only yield when it is at war with the Statute. Motion rejected. No. 2219. Jones Sf al., v. Young. The Plaintiffs sued the Defendant for rent for the storage of wheat, which Defendant refused to pay on the ground that the wheat delivered back to Defendant was not as lieavy as that put into the Plaintiffs' warehouse. Rose, Q. C, 4- Monk, f'^r Plaintiffs. A. Sf G. RobertsoH, for Defendant. Day, J., This action is brought for rent for the storage of wheat, and it is contended by the Defendant that the proper weight has not been returned to him. Wheat is not delivered by weight but by quantity. Is the party storing wheat to be considered as the warrantor of its weight 1 There is no doubt that the wheat given back was the same as that received ; but it is contended that there is a custom of trade which obliges the storer Iw give back the wheat in weight ; no such custom li?" been proved ; if it had been it would have been against law. Plaintiffs must recover.. Jii'lgment for Plaintiff's. No. 2655. Bi^mm V. Ilogan ^ al. This was an action, begun by process of saisie rcvendicatAoti, by a piano-dealer against the Defendants, described as hotel-keepers, to recover back a piano, which had been lent by the Plamtiff to a person of the name of Warr for the purpose of giving a concert in a room in the Hotel of the Defendants. Warr left the town without paying for the use of this room, and the Defendant's retained the piano pretending they had a lien on it for the depens dViotelage. Ch.errier, Q. C, Dorion Sf Dorion, for the Plaintiff. David Sf Ramsay, for the Defendants, contended that the 175 Article of the Coulume gave the lien under vvliirh Defendants clai-aed to retain the piano untill \V'arr's bill was paid,— t! .it the Coutume hav- ,ino- used the word " hicns,^"* this right covered e\ ,ry kind of moveable, 84? CIRCUIT COURT. I??«N- and that they were equally liable whether the proprietor or person wlio had put them there had boarded in the hotel or not, and that the ex- pression depens (Thotelage ought not to receive a narrow dictionary interpretation, as it was evident from the after use of the word hdtdes that it did not simply mean expenses of entertainment ; but rather all expenses incurred by a traveller in a hotel, whether for his own entertainment or for the protection and accommodation of the hiens placed there by him. Doriofii in reply, contended that the lien was only acquired when^ the Hotel-keeper was acting within the ordinary scope of his business, — that in this case Warr took the room on purpose to give a concert. The Courty sustained the pretensions of the Plaintiff. MoTidelet, (C .), J ., In support of the judgment of the Court said, that the room was let to give a concert in it, that it did not appear that Warr was even a boarder in the house, and that the Flaintiifj Brown, had never lost the possession of the piano as the key had been kept by one of his employee. Judgment fay Plaintif. No. 83. K upai k Pj })h.ael Moquin, for Certiorari. This apph ation was *r r».nove a conviction rendered by a Justice of the Peace urde.' tKa 13 & 14? Vict., c. 40, against the Applicant, for trespass and cutting timber. Carter, for Applii^aut, contended that the conviction awarded im- prisonment not only lor the penalty but also for damages and costs', which was unauthorized by the Statute upon which the conviction was rendered. Rose, Q. C, Sf Monk, contra, relied on Sections 17, 18 & 120 of 14 & 15 Vict. Ch. 95, as fully authorizing the Justice in awarding imprisonment for the amount in the conviction in any case, whether for damages or costs. Per Curian, We have given particular attention to the clauses of the Statute 14 & 15 Vict., Ch. 95, and we are satisfied that they fully sustain this conviction. Applkaiion rejected. No. 1227. Superior Court, M.tjntrcal, May, 18;>4. Exparte The Harlnmr Commissioners of Montreal, for Ratification of Title, V. J(^n FisJur, Opposant. ratification of title— opposition by chirographary creditor. On the lt)th Nov., 18.53, (Smith, N. P.,) Miss Grace RusscI sold some real estate Ui the Custom House Square, Montreal, to the Ilar- bor Commissioners, who petition in this case for a sentence of Ratifira- tion of their Title Deed. 'i^H> SUPERIOR COURT, 83 e ex- onary word ; but or his of the wheiv siness, mcert. d,that ; Warr n, had by one Justice iplicant, ded im- id costs, ion was & !20 of [warding iiher for lauses of liat they lected' Itificatioii [EDITOR. issel sold' [be Har- iRatifica- 'On tho 11th of April, 1854", John Fisher opposed the rendering of a Sentence of Ratification. By his opposition he alleged that in tlic year 1830, and before, and since, h, did not bear on this question. The case cited there was that of an heir who concealed the existence of the legacy, and was liable for all damages by reason of his fraudulent conduct. The authority cited by Plaintiff from Pothier Coutumc d'OrUanSf T. 16, was the same as that from Domat. With reference, then, to the old law of France, there could scarce- ly be two opinions. In the modern law of France another exception to the rule of non-liability for interest would be found in Toullier, vol. .0, no. 545, by the 1,014th article of the Code Napoleon, which provi- ded that interest should run from the day on which the deliverance had been voluntarily agreed to. The next question for the consideration of the Court was, whether there had been a promise to pay interest. Was there evidence before the Court that the executors or heirs had entered into an agreement to pay interest ? Before entering upon the consideration of this question, the learned Judge would remark that such an undertaking by the exe- cutors, without the heirs, would not be good in law, so as to bind the SUPERIOR COURT. 99 : same as estate ; but with the heirs, it would be good. — Had any such under- tuking been proved 7 There was no formul instrument produced to establish such an undertaking, but the Plaintiffs said that from thu let- ters and corres[)ondence, from the statements m.>de to tlu m by the De- fendants, from the answers to the interrogatories sur Jaits ct articles, from the obvious tenor of the whole of the acts of the I defendants, and the natural presumption that the rhiintifls wouUl not have waited 20 years for tiie h-gacy unless it bore fruits, th^y adduced sulllcient proof to amount to evidence of such an undertaking. Before adverting to the correspondence and other evidence relied upon by the PlaintitT, the Court would dispose of an incidental point. Motions were made by Torrance and Lunn, for the rejection of certain letters fyled by Plain- tiff in the course of their cnrjUite. The Court was agaiust tlie movers, 1st. Because the papers were not of a character to justify the grant- ing of the motions ; 2nd. There was another reason of a technical na- ture. The motions came too late. The papers were fyled in Novem- ber, and the motions to reject them were only made in May. The first question the Court would consider was, wlicther there was an undertaking by the Executors. They would first examine the evi- dence against the Executors alone. It was established in evidence that the Executors assumed the trust ; that at first they secured the services of one Miller, as agent for the estate, and then delivered the manage- ment of it to John Torrance & Co. This firm took the entire control of the estate, and the moneys were paid and received by David Tor- rance, one of them, and this partner ronducted the whole of the corres- pondence. No doubt he could not bind the Executors or Heirs. There was one letter, no. 49, of printed case, written by him, in answer to no. 48, from Mr. Lockhart, referring to her claims for interest, but this did not prove any contract — it simply conveyed the impression in the mind of the writer that interest ought to be paid. With respect to the letters of the Executors, they did not contain any undertaking to pay interest. The Plaintiff was always referred to her legal rights. The answers of Torrance, Lunn, and Fisher, to the interrogatories on f aits et articles, negatived in unqualified terms any undertaking to pay interest. ' The only piece of evidence of sufficient substance to merit special attention was the paper no. 40, a statement in possession of the Plaintiff of the condition of the assets of the estate, and of the payments necessary to equalize the position of all the legatees. It was based on the principle-that the Plaintiff was to recover interest on her legacy. It shewed that 455/. 7s. 5d. should be paid to her to equal- ize her position with that of the legatees of 5,000/. each, and then, as- suming the value of the estate to be 10,000/., it shewed that she was entitled to a further sum of 760/. for her capital,which would shew a sum of upwards of 1,200/. as the share of the Plaintiffs. The Plaintiffs further relied upon this as shewing that interest was to be paid on the other legacies; but, in this the Plaintifts were not well founded. The other legatees were the heirs at law, and the universal legatees and owners of the estate ; and, if the estate proved sufficient to pay interest upon their legacies, it would belong to the succession, and to them as 100 SUPERIOR COURT. I 1 \ ;! roproscntativcs, but nnt ns f.p(»cinl Icgntrrs. The Plaintiff, as a special legatee, could not be placed on the same footing as the universal lega- tees. Looking at the eff(!ct of this statement, the allowing of interest in it was an undoubted declaration of the understanding of the party by whom it was made, that interest w;is to be paid on the Plaintiff's lega- cy, liiit first of all, this paper h.id no heading, and was without dale or signature, ami though it was proved to be in the handwriting of .lohu Fisher, one of tlje JOxecutors, the other Executors denied all knowhrdgi' of it, and Fisher himself said it was only a loose memorandum of fig- ures. Nor was it proved how the paper came into the possession of the Plaintit^'s. The statement was before the Court, and the figures conveyed the impression that interest was to be paid. But whose ad- mission was it, and whom did it bind 1 It did not bind the other Kxe- tors. It was not formal. It did not even bind Fisher individually. It was only a commcncemmt de preuvc par ecrit to justify the adduction by PlaintitVs of verbal proof, to establish the undertaking to pay inter- est, and no such proof had been adduced. There was no other evi- dence. ( Joing over all the items of evidence, the Court was not just- ified in the conclusion that the Executors undertook to pay interest. The Plaintiff was undoubtedly under the belief that interest ran on her legacy, and it was not likely that she would have left her legacy so long in the hands of the L xecutors, except with such a belief; but thia was not enough. The Court had nothing to do with ecjuity, but simply to decide upon the recognized principles of law. So far, therefore, as regarded the Executors, the claim for interest was dismissed. It was unnecessary to advert to the proceedings of Upper Canada. They had no bearing on the case. The special legatee had no right to demand an account from the Executor. The Defendants were not liable to account. But, if they said that the estate was insufficient to pay the special legatees, the Plaintiffs were entitled to an account, and and the Executors were bound to render one. This burden lay upon them to shew the insulBciency of the estate, which they must do by an account of its assets and management. The Court now came, in the third place, to the alleged undertaking by the residuary legatees and heirs to pay interest, and they had not discovered any such undertaking in any of the correspondence. The evidence against them was in the correspondence, and the interrogato- ries stir /(fits et articles put to the heirs. The whole correspondence was strikingly non-committal. It left the matter to be settled by law. The heirs said they had nothing to do with it, but left it to the execu- tors. The whole case, however, was embraced by an elaborate series of interrogatories drawn by the counsel for the Plaintiffs, and sent with a cn7nm(ssf'on rogntoire to Upper Canada ; but the heirs had made default and refused to answer. Tf the affirmative of these inter- rogatories were taken, it would establish as complete a case against the heirs as a confession of judgment. But it was objected that the certi- ticate of the default of the heirs was not sufficient to justify its recept- ion. The heirs were resident at Toronto, and a rule of Court was ob- tained to examine then before Commissioners. No objection was taken SUPERIOR COURT. 101 to tlie rule. The objection was to tlie service of notice, nnd the ccr- liiiciitc of default by the C'oinmissinneis. 'I'he service *vas in uhi per- !4onnlly by one of the ('oinini»sioners, nnd the rt!turn nnncxcd lo the tnniinission was as foHows; — After mentioning that ih«*y tin t toj;ethor, administered the oath to each other, and (hew up a notice uppointing a day and place for taking the answtMS, tiny proructlcd to say, " uiso, that on the twelfth day ol the same month of l''atories hereunto and unto said oomnii>sion ann«'\('(l, nnd of the Rule of (.'ourt also hereunto and theronnlo annexed, and the afore- said notice, marked as aforesaid, wore, ami each was, by the siid .Tohn Hell, for and on behalf of himself and both of us, served npou the De- fendants respectively, and at the same time the said interrogatories and rule exhibited and shewn unto them respectively ;" then fi Mowed the certificate of default in these terms : ~" And that the said |)» fiiiilants, and each and every of them, did refuse to attend at the liine and plact; in the said notice specified or otherwise, or in anywise to j;ive their or cither of their attendance, or to answer the said intei rogatoi ii s in pur- suance of the requirements of the saiJ notice, and that they m- any or either ot them did not attend at the time or place in the said nctice specified, nor did otherwise give their attendance or answer the said interrogatories, wherefore we certify that we did not and could not ex- amine the said Defendants." From this return, the Court seemed to have before them all that was necessary to satisfy them as to two material points. 1st. That service was made, and that it was personal. 2nd. That the Defendants did not appear, and refused to answer. The certificate, moreover, was not of a badiffor.other surbordinate officer, but of the Commissioners, dele- gated by this Court, and its own officers. The interrogatories as regards the heirs were to be taked pro coiifessis. In so far therefore as regarded the heirs, they were liable for inter- est, and the judgment should go all against the Defendants for the legacy, and against the heirs at law for the legacy and interest, each one-half, with costs. Cross, for Defendants, Torrance, Lunn and Fisher. Rose, Q. C. tj- Monk, and C. Cherrier, Q. C, for Plaintifis. 22 Sept,, 1854. Present : — Bowen. C. J., Day and Smith, J.J. No. 1714. Pacaml v. Bourdagcs. Lafrenaye, for Plaintiff. Cartier, G. E., Counsel. Hubert, Ouimct ^ Morin, for Defendant. Day, J., This is an action instituted by the ccssionaire of a claimant under the " Rebellion Losses Act" for the recovery of the sum of 183/ awarded to the Defendant. The facts are simply these : In the month of September, 1850, the Defendant, a claimant under the " Rebellion Losses Act" as tn creditor of Dr, Nelson, ceded to 102 SUPERIOR COURT. i:^' w p. PlaintiiT the sum of 183/, being the half amount of his claim, and which sum, notwithstanding the transfer, was paid to the Defendant. To meet this action the Defendant set up two exceptions, by which she in substance raised two points : 1st. That the transfer was illegal as being a transfer of no claim exigible in law— that there was no creance at all ; that this claim not being recoverable against the government could not be recovered by this action. The 2nd point, is that Defendant was induced to make this transfer because of the fraud and false pre- tences of the Plaintiff. To begin with the second of these exceptions, there is no proof of fraud. With regard to the first exception — that those things cannot be sold — it was contended at the argument as the principle upon which this exception should be supported, that there could be no right where there was«no remedy. This is a fallacy. There may be a very good and perfect right where there is no remedy. If it were true that it was competent to the government not to pay this claim, what answer is this in the mouth of the Defendant if government thought right to pay it ? But it cannot absolutely be said that there was no remedy, for Iler Majesty's Minis- ters were obliged by the Statute to pay these claims, and they might have been impeached if they had refused so to do. Pothier says, that there may be a sale of a crcancc or even of an espcrance. The res may be a thing of greater or less certainty in its value, and there may be a greater or less degree of certainty in the probability of its recovery, but the remedy is only an incident. There might be accumulated a great variety of illustrations to show that remedy and right are not synonymous. None of the authorities sustain the pretentions of the Defendant. In France such things were constantly sold, and notice given to the proper officer was considered sufficient, V. Merlin's Rejjertoire vo. Pension, § 6 and 7. It, however, came to be neces- sary to establish a limit to these transfers, and the Ordinance Oi *779 was established in order to prevent the seizure of the pay of soldiers and retired officers. There, however, the principle we have alluded to was admitted, and these exemptions of the Ordinance were only ex- ceptions. The reason for these exceptions being made was, thvtt it was inconvenient for officers to be allowed to assign their salaries so as to disable them from performing their duties. It is also so enacte.d in the Mutiny Act. Lord Kenyon says, that such emoluments as those to officers, are given to support the dignity of the State, and should not be appropriated to other purposes. For authorities on this point see in. T. R., p. 681, IV. T. R., p. 24-8, Comyn's Digest v. As- signment, Ch. (C) Note D. Also the case of DcrvAn v. WaldorJ.' III. Revue cle Legislation^ p. 248. T have now referred to this case on the common in France and England ; but on turning to the Statute under which this claim is created, all doubt as to these claims being of in assign- able character ceases. The Preamble of the 12 Vic, c. 58, is in these words ; " Whereas in order to redeem the pledge given to the law rules existing laim, and fendant. by which vas illegal 10 creance lent could Defendant false prc- ) proof of ot be sold vhich this here there nd perfect npetent to the mouth it cannot f% Minis- hey might says, that le ?cs may may be a recovery, nulated a are not ns of the nd notice Merliii's )e neces- 0. '779 f soldiers alluded to only ex- lat it was so as 10 te.d in the those to dd not be his point st V. As- Valdarf existing er which ii assign- 5S, is in en to the CIRCUIT COURT, ST. HYACINTHE. 103 sufferers of such losses, or their hon&ficle creditors, assigns, or ayants flrmt, &c.," and the 10 Section alludes to the preamble, so as to make it available as an enacting clause. The 11 Section also enacts: " That the powers vested in, and duties required of, the said Commis- sioners, or of any three of them, under this Act, shall also extend and be construed to extend to inquire into all such losses sustained by Her Majesty's subjects and other residents within the said late Provinre of Lower-Canada, and the several claims and demands which have accrued to any such by such losses, in respect of any loss, destruction, or damage of property occasioned by violence on the part of persona in Her Majesty's service, or by violence on the part of persons acting or assuming to act on behalf Her Majesty, in the suppression of the said Rebellion, or for the prevention of further disturbances, and all claims arising under or in respect of the occupation of any houses or other premises by Her Majesty's Naval or iVUlitary forces, either Imperial or Provincial ; subject always to the limitations and exceptions contained in the Preamble of this Act." These then are the enacting clauses in so far as regards the present action, and from thence it is clear that these claims are assignable. It may also be remarked, that the Defendant is not herself claimant but only assignee of Dr. Nelson. Smith, J., At first I was disposed to think that at common law these claims were not assignable ; but the Statute, which was not at first brought up, leaves no doubt on the question. Bowoif C. J., We think the tender of 75/ insufficient. Judgment for Plaintiff. St. ^^gacCnthe €fv£uft OToun. 10 June, 1854. rresetit :— McCord, (J. S.), J. Thurber v. Deseve. This was an action brought against the endorser of a promissory note payable to order endorsed by a cross, the validity of which endorsation is contested. DeBouchcrville, for Plaintiff. Sicotte, for Defendant. McCotd, (J.S.), J., The 34- Geo. III., c. 2, being repealed, and the French law not recognising a note made or endorsed with a cross, its validity must be tested by the English law, which law recognises the si«»-natHre by cross. See, George v. Surrey, 1 Moody and Watkins, p. 516. Baker v. Dinning, 8 Adolphus and EllI^, p. 94, in which Paterson, J., said " the requisite of singing is supplied by a mark." 104 CIRCUIT COURT, ST. HYACINTHE. m The decision in the case oiPatterwn ^'ol v. Pain,V. 1, L. C. R. p. 219, is in point, and i:i even stronger than the present case and the English cases 1 have referred to, as it was an aval. See also Byles on Bills pp. 6-2, 335. Judgment for Plaintiff. Rcfour V. Se?iecaL DISMES. Sicotte, for Plaintiff. DeBoifdierville, for Defendant. McCord, (J. S.), J., The declaration states that the Plaintiff is Prit7e and Cure dhervant la mission Catholique de Ste. Cecile, in the Township of Milton. That the Defendant is proprietor in possession of part of lot No. 14, in the 8th range of Milton, and a " paroissien catholique rotnain,''^ domiciliated on the lands of the said mission, to whose cure the Plaintiff is duly assigned. That in his respective capacities, the Defendant is bound to pay Plaintiff 10s for tithes of grain on said lot. To this the Defendant pleads en droit : 1. That the Pritre deservant has no right to tithes. 2. That the mission being within the Township of Milton, where the tenure is in free and common soccage and subject to the laws of Eng- land, which do not require the payment of'tithes" within this Province. 3. That the mission has not been either civily or canonically erected into a parish or cure. It is well known that both in England and France at the earliest periods when tithes were mentioned ihey were voluntary contributions, and only became exigible when sanctioned by authority of law, which was so in France, by Charlemagne, A. D., in England partially in 786-7, and generally in 930. See 2 Btk. Comm,., p. 26. Burn's Ecc. Law, V. Tithes, vol. 3, p. 387. There can, therefore, be no right of tithe without sanction of law« Tn this Province it formed part of the law of the country introduced by the kings of France, under whose dominion that part of the coun- try known as Sei, niorial Canada was subject, and when it was found in force at the conquest of the country in 1759, V. Edit du mois de Mai, 1669. By the Imp. St. 14- Geo. III., c. 83, sect. 5, it is enacted that the inhabitants of Quebec professing the religion of the " Church of Rome may have, hold and enjoy the free exercise of tbe Religion of the " Church of Rome." *' And that tbe clergy of the said church may ** hold, receive and enjoy their accustomed dues and rights with res- " pect to such persons only as shall profess the said religion." Had this clause remained alone in the Statute it might perhaps have been argued, that the permission should extend to the entire Province of Quebec, now the Province of Canada, but by the 9th Section all doubt it SUPERIOR COURT, lOB is removed by the (oWomng proviso : " That nothing in this Act con- '' tained shall extend, or be construed to extend to any lands that have " been granted by His Majesty, or shall hereafter be granted by His " Majesty, his heirs and successors to be holden in free and common " soccage. The next and only other Statute on the subject is 31 Geo. III., c. 31, sect. 35, which confirms and contains the above provision, Mrith a further restriction that where a protestant shall possess land, which in the hands of a Roman Catholic would have been liable to tithes, such land shall cease to be so subject to that right. Such then is the present slate of the law of the country, and there being a positive prohibition to the extension of the rights of tithes to lands held in free and common soccage, I am bound to maintain the defense en droit secondly pleaded. Defense en droit maintained. I SUPERIOR COURT. Oct.. 18, 1854. Present .•—Smith, Vanfelson and Mondelet, (C.J; J. J. No. 255. Darling v. Cowan, Motion to quash the process ad respondendum on the ground that Defendant lives out of the jurisdiction of the Court, and that there was no priTJia facie evidence to show that he had property within the jurisdiction df the Court. Chiffin, in support. Rose, Q. C, 4* Monk, contra. Smith, J., The practice of this Court has always been to call in the Defendant without such evidence. Mondelet, (C), J., The Statute does not make such prima facie evidence necessary. I think the practice of the Court in not requiring it is a good practice. The Court when it grants a writ in any case is not absolutely certain that it has jurisdiction over the Defendant, who must defend himself by a declinatory plea. No. 166. Cowan V. Darling. In this case a preliminary plea had been fyled and dismissed after the elapse of the four days from the return of the action. On the dismissal of the 1st plea a second preliminary plea was fyled, and Plaintiff moved to have it dismissed as coming too late. Smith, J., The rule of days established by statute is imperative, 4he motion must be dismissed^ 11 K ?T ■ 106 SUPERIOR COURT. Monk, S. C, Will the Court go so far as to say that all preliminary pleas should be fyled together ? Smith, J., Declined expressing the views of the Court on that point. Griffin, in support. Rose, Q. C, 4* Noiik, contra. Motion maintained. No. 405. Boudreau v. Gascon. Smith, J., This is a motion to set aside certain proceedings as there is no replication on the record. The Court is of opinion that a repli- cation is necessary under the Ordinance of '85. Mondelet, (C.J, J., Reference was made yesterday to the case of Gugy V. Ferres. There Defendant had waived his right, besides the presiding Judge was acting under the direction of the Court. Carter, in support. JLorangcri contra. Motion granted. No. 2258. Hislop V. Emerick. SEDUCTION BY MINOR — LIABILITY OF FATHER. Held, that an action cannot be brought against the father of a minor son for seduction committed by his son ; That a minor son cannot be sued en declaration de paternity, w;*^- out the appointment of a curator or some one by law authorized to repi-esent him, Devlin Sf Doherty, for Plaintiff. Holmes, for Defendant. Day, J., This is an action of damages brought by the father of a young woman against a father and his minor son, by the latter of whom the young woman had been seduced, and against the son en declaration de jyaternitL The action is brought against the father simply as being liable for the injury committed by his son, and the son is sued without the appointment of a curator or any one by law authorized to represent him. The Court is against this form of action. A party is only lia- ble for damage for seduction on the presumption that there has been a breach of promise of marriage, and this would not bind the father un- less he had assented to it. And the son should not have been impleaded SUPERIOR COURT. 107 Tlie without the" appointment of a tutor or curator to represent him. general rule is that a demand cannot be made on a minor in a civil suit unrepresented, and all the exceptions, such as that established by our Statute, in allowing a minor to sue for wages, are in favor of allow- ing a minor to implead another party. Action dismissed. No. 174. Lisotte V. Bulmer. Motion to set aside forclosure as there was no judge on the bench when the foreclosure was entered up. McKay ^ Austin, in support. Lnfre7iaye 4* Papin, contra. Tlie Court granted the motion. Motion granted. No. 2627. Tidmarsh v. Stephens. Motion to set aside Plaintiff's enquetc on the ground that the case was inscribed on the Role for hearing on the merits at the time of the Plaintiff's enquite. David Sf Ramsarj, in 8\ipport. Carter, E., contended 1st, thai a judgment upon a former motion of Defendant's to set aside a previous enquHe in the case, and by • which the previous enquete had been aside, necessarily set aside all the subsequent proceedings in the case, and 2nd. that Defendant had waived his right of taking notice of such an irregularity, he having subsequently to the taking of the second enquete, moved to set aside the second enquHe for other informalities, and had passed over the one now complained. Smith, J., Theie is evidently an irregularity in the procedure ; but I shall always be disposed to resist any trifling irregularity in a record where it is not taken up at once. Motion dismissed. Oct. 23, 1854. Present: — Smith, Vanfelson and Mondelet, (C), J. J. No. 1283. Exparte Wood. Applicant for Ratification of Title. Smith; 2., This is an application on the part of the Applicant for Fi,alifi cation of Title, that Opposant to give security of costs he being domiciled out of Lower Canada. On the part of the Opposant it is 106 SUPERIOR COURT. contended that tin's application conies too late as the appearance of the applicant must be held to be from the day of his fyling this deed of acquisition of the property, the title of which it is sought to ratify. The difficulty is as to the interpretation of the 62 Rule of Practice and the Court has no hesitation in saying that the appearance of the appli- cant dates from the presentation of the petition and not from the fyling of the deed. Devlin ^ Dohcrty, for Applicant. A. 4* G. Robertson, contra. I t b t No. 164. Bates r. Foley. Smith, J., This is an action to oblige Defendant to make an inven-^ tory. Defendant pleods that he has made one, and Plaintiff replies by a debat (Tinventaire. Defendant demurs to this replication. In technical language this is a departure. Demurrer mairUained, Barnard, in support. Badgley, Q. C^Sf Abbott, contra. No. 373. ^ ^ ■4 , Galafneau Sf al. v. Robitaille. ;" Smith, J., This is an application on the part of the Defendaj^ who has been foreclosed, to be allowed to appear and fyle a plje|i JF there has been a misunderstanding between the Counsel representing the opposing parties. Here both parties have tendered affidavits, so it is impossible for us to say who is right and who wrong. In all cases where there are contradictory affidavits the loss must ftiil on the party who has over trusted the other, and he must be more yi^reful in future. But m this case there is another objection which arises jn my mind and that is that the plea is not good. .) Mondelet, (C.J, J., I dont concur in the judgment given on the 2iid ground. I say nothing about the nature of the plea tendered by Defendant, but it would be a very delicate duty for us to judge between the contending affidavits of counsel. The party, therefore, in ust suffer who has allowed himself to fall into irregularity. / Cartier ^ Berthelot, for Plaintiff. Sicotte 4* LeBlanc, for Defendant. SUPERIOR COURT. 109 trance of the this deed of ht to ratify. Practice and of tlie apph- ^ra the fyling .1. ike an inven* tiflf replies by lication. In lirUained. /* No. c'87. Beithelct v. Galarncau tj* «/. DOMICILE OF CO-PARTNERSHIP. Smith, ^., This is an action of damages brought for breach of contract of leaso fro.'.i the Plaintiff to Defendants, who are co-partners. The action is brought against Defendants as co-partners, and service is made at place of business of the co-partnership. The Defendants have met this by an cxccjition d la forme, in which they allege that this is no partnership debt, and that the service at their place of business is null. We are against Defendants ; there was clearly a partniTship debt, and the service at the place of business of the firm was good V. 4 Pardcssus, No. 976. But at all events this~ is no ground of exception, but rather of demurrer. Mondclet, (C), J., I had some difficulty in bringing; my mind to agree with the opinion of the other members of the Court, but after looking through a great many books I at last found in the Nouvcau Pigeau, in the notes, p. 194, 12 exceptions to the rule that a party shall be served personally at his domicile, and also a reason for thiit be- ing an exception. This is the reason, the partnership is an Btre, and it is at its domicile that the service should take place. Barnard, for Plaintiff. Cartier ^ Berthclot, for Defendant. Exception d la forme dismissed. fendan^ who )l!ea_jB there esehting the ivits, so it is In all cases on the party III in future. Tiy mind and II on the 2 lid tendered by Ige between •efore, must '26 OcPjhre, 1854. Present: — Smith, Vanfelson and Mondelet, (C), J. J. ^ No. 2634. Lynch, Inft. v. Papin, Deft. This case originated in a Requite Libcllec, under 12 Vic, c. 41 and the 14 &; 15 Vic, c 125. The Informant sought to have Defen- dant ousted from the office of a Councillor in the City of Montreal, and to have himself declared entitled to the office. The election referred to in the Requete took place in 1853, the Councillor returned to hold office till March, 1856. The Informant alleged that Papin was disqualified to be elected at that election, not having been, for the twelve months previous, a resident householder in the City of Montreal. The Informant further contended that, of all qualified to be elected at that election, he had the majority of votes. [In point of fact, Papin had received a majority of votes, Lynch the next greatest number of ;ii ' 110 SUPERIOR COURT. votes. Lynch contended that the votes for Papin were to be held as wasted, or thrown away.] The Defendant by his defenses nlleged that he had held/e^ et heu, and been a resident householder for the twelve months before the elecf tion refered to, and that, even if this should be adjudged not so, Lynch, with a minority of votes, could not be declared entitled t^, the office under that election, but that the Court was bound to order a new election to be had. MacKay Sf Austin^ for Informant, cited Grant on Corporations, p. 206, 207 and 208, and particularly note on p. 207. A. A. Dorion^ Sf Lafrenaye, for Defendant. Oct. 31st, 1854. The Court gave judgment. Present: — Justice Smith, VanFelson and Mondelet. Mr. Justice Smith remarked that the Statute required as qualifica- tioD for a Councillor that he should have been a resident householder io the City for the twelve months before the election ; that this required that Papin should have held feu et lieu, and bad a house during such period, though, of course, a mere temporary absence from home for a few dkys would not prejudice bim. The Defendant had by his plead- ings alleged such a house-holding. The evidence established the con- trary, and that, for the eight months before the election, the Defendant bad been a boarder and lodger, in the boarding house of one Groux. The Defendant had, verbally, argued that at a time, about a year be- fore the election, he had taken a bouse, but that be had been prevented by a force majeure from continuing in it, it having been consumed in the great fire ; but he had not so pleaded but quite the reverse, nor had he proved impossibility to get another house, nor attempt whatever to get one. He had proved nothing of the kind, nor payment of assess- Diients, or of rent whatever. He was disqualified to be elected at the election referred to. The Court is further called upon to prononce on the rights of Lynch averring himself to be entitled to the office, and after consideration of the arguments and authorities it feels bound to declare the votes given for Defendant thrown away, and Lynch to be entitled to the office sought by him, he having (of all qualified to be elected) received the majority of votes. Under the law stated in Grant on Corporations, the Corporators were bound to know the requirements of their own Charter and Act of Incorporation. In voting for Defendant they voted for a man whom they knew, or ought to have known, to be disqualified. The facts were patent. The Defendant has argued that Lynch was bound to give notice to the Electors of Paptn's disqualification, but it may be argued that the Electors bad notice ; besides the ^election being by ballot Lynch was npt bound to know how the Electors would, or did vote. He was not to know that he himself would receive votes, or that JPapin would. The Electors had right to vote for any body. The conclusions of the rcquSte lihellie are granted with costs. to be held as \fcu et heu, ore the elec- ot so, Ljnch, U' the office arder a new Corporations, nt : — Justice as qualiBca- householder this required during such 1 home for a )y Iiis |ilead- hed the con- e Defendant one Groux. t a year be- en prevented consumed in erse, nor had wliatever to »t of assess- lected at the hts of Lynch sideration of votes given to the office received the Corporations, af their own it they voted disqualified. t Lynch was ;ation, but it the nelection ctors would, eceive votes, )r any body. )sts.